Program Review and Investigations Committee




<MeetMDY1> December 10, 2009


The<MeetNo2> Program Review and Investigations Committee met on<Day> Thursday,<MeetMDY2> December 10, 2009, at<MeetTime> 10:00 AM, in<Room> Room 131 of the Capitol Annex. Representative Reginald Meeks, Chair, called the meeting to order, and the secretary called the roll.


Present were:


Members:<Members> Senator John Schickel, Co-Chair; Representative Reginald Meeks, Co-Chair; Senators Vernie McGaha, Joey Pendleton, Dan "Malano" Seum, Brandon Smith, and Katie Kratz Stine; Representatives Dwight D. Butler, Leslie Combs, Arnold Simpson, and Ken Upchurch.


Guests:  Mark Robinson, Director, Office of Administrative Services, Department of Corrections. Brigid DeVries, Commissioner; Julian Tackett, Assistant Commissioner; Kentucky High School Athletic Association.  Kay Kennedy, Director, Division of Operations and Transportation; Amy Peabody, Office of Legal, Legislative, and Communication Services; Denise Hagan, Acting Director; Karen Erwin, School Nurse Consultant; Division of Nutrition and Health Services; Kentucky Department of Education.  Sandi Clark, Pediatric and School Nurse Consultant, Department for Public Health, Cabinet for Health and Family Services.  Sharon Mercer, Practice Consultant; Nathan Goldman, General Counsel; Kentucky Board of Nursing.  Debbie McGrath, Executive Director, Epilepsy Foundation.  Stewart Perry, former chair of the board of the American Diabetes Association.


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


Representative Meeks said the co-chairs would recommend four study topics for adoption by the committee:  1) state role in workforce training for citizens 55 and older, 2) transparency of quasi-governmental entities, 3) the impact on local taxes and the SEEK formula from private businesses deeding property to local governments to qualify for tax free municipal bonds, and 4) the effectiveness of putting pseudoephedrine behind the counter and the Methcheck system in reducing illegal production of methamphetamine in Kentucky. He summarized each topic.  Upon motion made by Senator Schickel and seconded by Representative Combs, the four study topics were approved by roll call vote.


Senator Stine commented that selecting these topics should not preclude selecting additional topics later.


Upon motion made by Senator Schickel and seconded by Representative Combs, the minutes of the October 8, 2009 meeting were approved by voice vote, without objection.


Upon motion made by Senator Schickel and seconded by Senator McGaha, the minutes of the November 12, 2009 meeting were approved by voice vote, without objection.


The Highly Skilled Educator Program Follow-up Report was approved by roll call vote upon motion made by Senator Schickel and second by Senator Smith.


Cindy Upton presented the report Cost of Incarcerating Adult Felons.  She said the focus of the report is the direct cost to the state of incarcerating adult inmates in its custody.  She said that some of the recommendations call for the General Assembly to consider revising laws to potentially reduce cost to the state, but this is not meant to imply that state cost should be the only consideration.


She said in the 10-year period from Fiscal Year 2000 to Fiscal Year 2009, the annual cost of corrections increased by more than 53 percent, from $294 million to almost $451 million. Even though the cost is high, it compares favorably with other states.  In FY 2007, the cost of corrections was 2.4 percent of state spending, lower than or equal to the percentage in all but 12 states.


Ms. Upton said in FY 2009, Kentucky had an average of 22,553 state inmates, of which 53.6 percent were housed in state prisons, 5.5 percent were housed in contracted prisons, 33.8 percent were housed in local jails, 6.0 percent were housed in contracted halfway houses, and 1.1 percent were on home incarceration. She said the department does not house out-of-state inmates and it does not house Kentucky inmates in other states.  The contracted Lee Adjustment Center houses inmates from Vermont to fill beds not contracted to the department. The state earns no money and incurs no cost for the inmates.


She said the number of inmates has increased by nearly 49 percent since FY 2000.  The large number of inmates is due, in part, to an increasing number of offenses defined as felonies, longer sentences for persons defined as persistent felony offenders, and a 42 percent recidivism rate.


She said national studies have shown that the financial cost of incarcerating nonviolent offenders is greater than the cost of alternatives.  As of June 30, 2009, the state had 9,430 inmates who had been convicted of nonviolent property and drug offenses, some as persistent felony offenders. They were 42 percent of all inmates. The estimated cost for FY 2009 to incarcerate them was $136.2 million.  The estimated cost of community supervision by probation and parole officers is $14.5 million, which includes $5.5 million to hire, equip, and train new officers.  Recommendation 1.1 is that the General Assembly may wish to consider reducing the penalties for nonviolent offenses and amending KRS 532.080 to apply the persistent felony offender sentences only to persons convicted of violent offenses.


She said the U.S. Department of Justice has estimated that 61 percent of inmates in state prisons and 44 percent of inmates in local jails have a mental health problem.  About 75 percent of these inmates also met criteria for substance dependence or abuse.  She said that participants in drug and mental health courts have lower recidivism rates than persons who receive treatment as usual. Recommendation 1.2 is that the General Assembly may wish to consider providing funding to expand the use of drug and mental health courts.


Ms. Upton said one-third of state inmates were housed in local jails in FY 2009.  The state is required to pay the county a per diem for each state inmate after the person is sentenced. Before sentencing, the cost of housing the inmates is borne by the counties, even though the inmates receive credit for time served, and the state receives the benefit of the reduced number of days it pays to house the inmates.  Recommendation 2.1 is that the General Assembly may wish to consider appropriating funds for the Department of Corrections to pay counties a per diem for incarcerating persons who serve time in local jails before being convicted of a felony offense.


Representative Meeks asked what the counties are spending to incarcerate state inmates.


Ms. Upton said she did not know the exact amount spent by counties, but the state pays the counties just under $32 per day.


Ms. Upton said statute requires the department to pay inmates or their dependents for each day worked outside the prison, with inmates having the greatest family dependency being given preference for outside work assignments. She said the statute implies that inmate earnings from outside work assignments should be used for family support, but no statute or department policy requires the department to withhold money from inmate earnings for family support.  The department reported no family support deductions.


She said statute requires the department to specify the amount of compensation an inmate will earn for a governmental services program, which by definition is performed outside the prison. She said no statute requires that inmates be paid for work or educational assignments inside correctional facilities.  In FY 2009, state inmates were paid about $2.5 million for all assignments not associated with Kentucky Correctional Industries.  Recommendation 3.1 is that if it is the intent of the General Assembly that inmates be paid for working or participating in program assignments inside correctional facilities, the General Assembly may wish to consider specifying in statute whether, to what extent, and for what purpose deductions should be made from inmate earnings.


Ms. Upton said all 50 states operate correctional industries, and most states compensate inmates for working in industries.  Kentucky inmates earned more than $802,000 from working in correctional industries in FY 2009.  She said some states withhold a portion of inmate earnings for inmate savings, to reimburse the state for room and board, or to pay court fines and restitution. Kentucky has no such requirement. Nationally, about $7 million was deducted from inmate earnings in correctional industries in FY 2008.  Recommendation 3.2 is that if it is the intent of the General Assembly that inmates working in Kentucky Correctional Industries be paid, the General Assembly may wish to consider specifying in statute whether, to what extent, and for what purpose deductions should be made from inmate earnings.


Ms. Upton said Kentucky’s correctional industries are not keeping pace with those in other states.  In FY 2008, Kentucky’s net sales were $12.1 million; the national average was $34.9 million.  She said a possible new industry could be created if prison canteens were operated by Kentucky Correctional Industries rather than being managed by prison wardens.  The department is required by statute to maintain a centralized canteen operation that is self-supporting for all state and contracted prisons. She said all profits must be used exclusively for the benefit of state inmates, but it is not known if Kentucky Correctional Industries could operate a centralized canteen at a lesser cost than the prisons and current vendors.  Recommendation 3.3 is that the Department of Corrections should conduct a cost-benefit analysis to determine the feasibility of operating prison canteens as a correctional industry. If the results of the analysis are favorable, the department should centralize the canteen operations under Kentucky Correctional Industries.


Ms. Upton said the federal Prison Industry Enhancement Certification Program encourages governments to develop meaningful employment opportunities for inmates by partnering with private industries that need labor.  Requirements for certification include legislative approval, payment of prevailing wages to inmates, and a guarantee that inmate employment will not displace private-sector workers.


She said 37 states are certified; Kentucky is one of the 13 that are not. She said 28 certified states reported that inmates earned $40.3 million in gross wages in calendar year 2008.  More than $15.5 million was deducted from their earnings to pay room and board to offset the cost of incarceration, to pay restitution to crime victims; to provide financial support to families; and to pay local, state, and federal income taxes.  More than $3 million was deducted for inmates’ savings to be used when they are released from prison.


She said the program offers financial incentives to inmates. It also allows inmates to gain employment experience and job skills that increase the likelihood of getting a job when they are released.  She said program participants had lower recidivism rates than inmates who worked in traditional prison industries or other correctional programs. Legislation authorizing the department to operate the program had been introduced, but the bill did not pass.  Recommendation 3.4 is that the General Assembly may wish to consider authorizing the Department of Corrections to participate in the federal Prison Industry Enhancement Certification Program.


Ms. Upton said state inmates can earn credits on their sentences for good conduct, educational accomplishment, meritorious service, and work on governmental services projects. The credits are deducted from the maximum expiration date of an inmate’s sentence.  She said in FY 2009, inmates received more than 7.2 million days of credits.   Legislation extending sentence credits to treatment programs that require participation of 6 months or more had been introduced, but the bill did not pass.  Recommendation 3.5 is that the General Assembly may wish to consider amending KRS 197.045(1) to award sentence credits to inmates who successfully complete substance abuse programs or other treatment programs that require participation of six months or more.


Ms. Upton said six programs in particular have been shown to reduce recidivism by more than 10 percent. Kentucky uses all these programs. They are cognitive-behavioral treatment in the community for low-risk sex offenders on probation; intensive community supervision with a focus on treatment; cognitive-behavioral treatment in prison for sex offenders; vocational education in prison; drug treatment in the community for drug-involved offenders; and adult drug courts.  She said adult drug courts are administered by the Administrative Office of the Courts and the other programs currently are operated by the department. She said the department has recently received federal grant awards to provide a reentry framework to train staff and reduce recidivism rates.


She said the financial cost of incarceration should not be the sole measure of how well a prison system is managed.  A system may have relatively low financial costs but be ineffective in ensuring the safety of the public and inmates and staff.  She said better data on performance could provide critical information to managers of the system and to members of the General Assembly as they make policy decisions about the system and funding.  Recommendation 4.1 is that the Department of Corrections should identify meaningful performance indicators, collect the needed data, and develop benchmarks for prisons and the system. The information should be publicly available.


Senator Pendleton asked if Ms. Upton had any idea of the percentage of people in county jails or state prisons for drug reasons. Ms. Upton responded that about 30 percent were in state prisons.


Senator Pendleton said that he estimates that 75 to 80 percent of inmates in jail or prison are there for drug-related reasons. He said that legislators need to do something to rehabilitate prisoners and break the cycle. If prisoners can be put to work and send money to their families, it will help the children.


Senator Schickel said he was pleased with the performance measures mentioned in Recommendation 4.1. He asked if any states require their inmates to work to generate revenue for the state beyond the cost of housing the inmate. Ms. Upton said there are mostly cost offsets but few revenue-producing activities in other states.


Representative Upchurch asked what the per diem was to the counties and for private prisons. Ms. Upton said the per diem to county jails was $31.34 and the lowest priced private prison was $35 per day.


Senator Seum asked if furniture is still being produced at Eddyville. Mr. Robinson said they are producing furniture at other prisons but not at Eddyville.


Senator Seum said he would like a list of what is being produced statewide. Senator Schickel said that a list was available on the Department of Corrections Web site.


Senator Seum asked if the state is mandated to use products produced by prisoners. Ms. Upton said yes, unless it is not economically feasible or does not meet a state need.


Senator Seum said that the state should be a great customer of prison industries. Senator Pendleton said that there are several prison farms across the state that did a great job providing produce and meat, but have scaled back. He said there are some opportunities out there.

            The Cost of Incarcerating Adult Felons report was approved by roll call vote upon motion made by Representative Simpson and seconded by Representative Upchurch.


Senator Smith asked the committee to keep the family of Velma Childers in their thoughts. Representative Combs spoke of her experiences with Ms. Childers and agreed that this would be a great loss.


Greg Hager presented the report Kentucky High School Athletic Association. He said that the main concerns that led to the report dealt with governance of the association; finances of the association, particularly the cost of contracted legal services; and issues related to eligibility of student athletes. Eligibility issues involved how long it took for the association to make eligibility rulings and KHSAA’s policy that it could penalize a school and its staff for following  a court order “that was determined improper” that allowed a student to play sports after the association had declared the student ineligible. This meant in some cases that penalties were imposed for students ultimately deemed eligible by the courts.


He said this study is unusual in that KHSAA acted to address some concerns that led to the study before the study was completed. A follow-up in the future will be necessary to make sure the actions are successful, but they appear promising. Earlier this year, the Administrative Regulation Review Subcommittee deferred approving an update of the regulation governing KHSAA unless its court order policy was reconsidered.  He said the association and state board of education agreed to do so. According to the regulation, KHSAA “shall…not punish or sanction, in any manner, a school, student, coach, or administrator for allowing a student to play in an athletic contest or practice with the team during a time when an order of a court of competent jurisdiction permits the student to participate or otherwise stays or enjoins enforcement of a KHSAA final decision on eligibility.”


He said the association also revised the student eligibility decision appeal process this year. Preliminary information is that this reduces the time taken for appeal cases by weeks. KHSAA also hired an in-house counsel this year. Unless the association’s need for legal services increases, this should reduce expenses for contracted legal services.


Representative Meeks asked if there was detailed expenditure information for contracted legal expenses. Mr. Hager said that staff did not have that information but that KHSAA may be able to provide it.


Mr. Hager said KHSAA is a nonprofit, independent agency. Kentucky is typical of other states in that the state, in Kentucky’s case through the Board of Education, designates an agency to manage high school interscholastic sports. KHSAA is typical in terms of how it is governed, its number of staff, its major sources of revenue, and its bylaws related to student athlete eligibility.


He said the members of KHSAA are high schools. KHSAA has 279 member schools: 232 public, 45 private, and 2 federal.  Annual dues depend on the size of the school, ranging from $800 to $1,400.


He said KHSAA is governed through a constitution and 33 bylaws. Subjects covered by the constitution include the duties of the commissioner, membership and duties of the Board of Control, school membership requirements, management of dues and revenues, and procedures for amending bylaws.  Topics covered by the bylaws include eligibility; duties of school officials; rules and regulations governing contests; requirements and regulations for coaches, schools, and officials; and imposition of penalties. Oversight is the responsibility of the Kentucky Board of Education, to which KHSAA reports regularly. KHSAA has 15 staff, who include the commissioner and four assistant commissioners.


Mr. Hager said KHSAA is a nonprofit. In some years, expenses have been greater than revenue. In FY 2009, revenue was greater than expenses and totaled just over $4 million.  He said 70 percent of revenue, $2.85 million, was from playoff receipts from state championships in KHSAA-sanctioned sports; the bulk of which was from the boys basketball tournament, totaling $1.8 million or 44 percent of total revenue. Thirteen percent of revenue was from KHSAA’s corporate partners, 9 percent from school dues, and 5 percent from fees collected from officials.


Mr. Hager said 31 percent of FY 2009 expenses relate to provision of sports playoffs. About half of the expenses are for administration, personnel and all other administrative costs. More than 6 percent is for insurance. The association purchases catastrophic insurance for students, which cost $168,000 in FY 2009. Expenses related to services for corporate partners were about 5 percent of expenses. 


He said the largest item in the “other administration” category is payment for contracted legal services, which totaled to $2 million from FY 2002 to FY 2009, 7.3 percent of expenses over this period. Contracted legal work was done by Greenebaum, Doll, and McDonald, except for protection of intellectual property.


Mr. Hager said 13 of 33 bylaws cover athletic eligibility. Most eligibility cases involve students transferring schools. Bylaw 6 covers domestic students; Bylaw 7 covers foreign exchange students. Under both bylaws, students who transfer schools are ineligible for 1 year unless the student meets specified exceptions. He said there are several exceptions in Bylaw 6 such as parents legally divorcing and a student’s legal custodial guardian changing by court order.


He said there are at least 12 specified exceptions used by other states not found in KHSAA’s Bylaw 6. KHSAA has discretion to waive the transfer rule for reasons in addition to those specified, but it would be clearer to students, parents, and schools if as many of the reasons as possible could be specified in writing. Recommendation 2.1 is that KHSAA should consider expanding the exceptions to Bylaw 6 based on a review of specific exceptions allowed by other states.


Mr. Hager said a paper form is used to process eligibility decisions. The process begins with the student’s new school, called the receiving school. If the student’s previous school, called the sending school, verifies that the student did not previously participate in varsity sports and the student is otherwise eligible, then the student is immediately eligible and KHSAA need not make a ruling. Otherwise, both schools are responsible for completing their sections of the form. He said that if the sections are done in specified sequence, the form could be sent back and forth up to five times before the form is submitted to KHSAA. In practice, the form goes from the receiving school to the sending school back to the receiving school, which sends it to KHSAA.


Representative Meeks asked how many transfer cases there are. Mr. Hager said that there were nearly 2,500 in the last 3 years.


Mr. Hager said each state has at least one process for students, or schools on behalf of students, to appeal eligibility decisions. There are at least 19 due process arrangements among state activity associations. KHSAA’s current process, which began in July 2009, appears to be unique. He said the initial eligibility decision is made by ruling officers, who are KHSAA assistant commissioners. A student who is ruled ineligible may appeal. A hearing is conducted by one of two hearing officers at the KHSAA office in Lexington. Parties to the case may have attorneys present. The hearing officer forwards findings of fact and recommendation to the commissioner. Before making a final decision, the commissioner may allow additional information to be submitted. This process was changed to reduce the time taken for appeal cases.


He said, in the previous process, a case would go from the commissioner’s office to the hearing officer and then to the Board of Control. Because the Board of Control considered cases at its monthly meetings, it could take several weeks for appeals cases to be decided. He said Program Review staff analyzed transfer cases occurring over the past 3 years to determine how long it took for different stages of the process and what decisions were made. Because the current appeals process is new, almost all analyses are based on the previous process. Average time for an appeal, once it was filed, was 33 days under the previous system, and 17 days under the current system based on preliminary data.


Mr. Hager said nearly 2,500 hundred domestic and foreign students sought eligibility rulings to play sports at KHSAA member schools over the past 3 years, an average of 766 cases per year.  Twenty-eight percent were foreign exchange students and 20 percent were domestic students transferring from schools in other states. More than 90 percent of the students transferred to public high schools. On average, more than 200 cases are received in August and nearly half the cases for the year are received in July and August.


Mr. Hager said Program Review staff reviewed the paper domestic student transfer forms (Bylaw 6) submitted to KHSAA over the past 3 years. There were more than 1,600 cases in which signature dates and date-received stamps allowed staff to tell how long each step of the eligibility process took. He said within a week after the case was initiated, the commissioner’s office had ruled on 10 percent of the cases; 32 percent were awaiting the sending school’s signature; 46 percent were signed by the sending school but not yet mailed to KHSAA; and 11 percent had arrived at KHSAA but no decision had yet been made. Once KHSAA received the transfer forms, the association took 1 week or less to make an eligibility ruling in 73 percent of cases. In nearly 50 percent of the cases, however, the association did not receive the required forms within 2 weeks of the student’s new school initiating the transfer process. Thirty percent of the forms were not received within 3 weeks; 20 percent were not received within 4 weeks.


He said that the time before KHSAA receives the transfer form could be decreased if parents were informed earlier about KHSAA’s transfer rule, the circumstances under which a rule can be waived, and what documents are needed to justify waiving the transfer rule under each circumstance. This information is on the transfer form, but staff interviews with athletic directors indicate that there are no guarantee parents or students will have met with the athletic director and seen the form immediately after enrollment. Recommendation 2.2 is that KHSAA should consider creating a document that provides a concise explanation of the association’s transfer rule that details the various circumstances under which the transfer rule can be waived, and that describes the supporting documentation that KHSAA would need to justify waiving the rule under each circumstance. The document should also encourage any student wishing to participate in sports to contact the athletic director at the student’s new school immediately. This document should be made available by the school to the student’s parents at the time the student is enrolled in the new school.


Mr. Hager said a student’s ability to play sports the same year he or she transfers ultimately depends on KHSAA’s eligibility ruling—whether the student is ruled eligible. However, it also depends on when KHSAA makes its initial ruling, or if the case is appealed, and when the association makes its final decision. Depending on the sport a student wants to play, it is possible that the association could declare a student eligible to play too late in the season for the student to participate.


He said that over the past 3 years more than 500 eligibility requests were initiated in July and August for students who wanted to play fall sports. KHSAA prioritizes such cases, processing them more quickly. The main problem is for students who appeal the initial decision. The new appeals process appears to be faster, which should help. He said that in the past KHSAA sent a letter stating the initial eligibility ruling to the principals of the sending and receiving schools. As of November 2009, KHSAA also mails a copy to the student’s current address. This may speed up the filing of an appeal.


He said a hypothetical example illustrates the need for continued improvement. If the receiving school initiated the request for an eligibility ruling on July 1, 2009, in 75 percent of cases KHSAA would have made the initial ruling by July 29. By this date, practice had already started for four sports. If a student who was initially ruled ineligible appealed immediately, the commissioner would have issued a final ruling by August 21 based on the average decision time under the new appeal process. This is a notable improvement over the previous process, but by August 21 the regular season had started for all five fall sports.


Mr. Hager said staff analyzed 1,798 domestic transfer cases occurring over the past 3 years. The commissioner ruled 66 percent immediately eligible to play sports.  Mr. Hager said 42 percent of students initially ruled ineligible appealed. Of those, 40 percent were ruled eligible by the Board of Control. Ultimately, 71 percent of students seeking eligibility under Bylaw 6 were ruled eligible. Since ineligible students cannot play or practice, those students who appeal may miss part or all of a sport season while waiting for the Board of Control to issue a final ruling. Staff analyzed decisions to see if there were differences based on whether the student was transferring to a private or public school, what sports the student wished to play, and the region in which the student’s new school was located. He also summarized the results for regions. The percentage of students ruled eligible did vary by region. At least 80 percent were ruled eligible in four regions; less than 60 percent were ruled eligible in two regions.


Mr. Hager said, for this report, Program Review staff reviewed the paper transfer forms for domestic students from the past 3 years. This is time-intensive and would not be feasible for KHSAA to do with the current number of staff. He said moving to an electronic system would mean cases could be coded by criteria of interest to the Board of Control. For example, it could quickly be determined whether decisions differed by sport. Another benefit is that eligibility cases would reach KHSAA sooner. Recommendation 2.3 is that KHSAA should consider creating an electronic system for processing the forms and other information required to determine the eligibility of student athletes.


Senator Stine asked for the corporate partners. Mr. Hager said KHSAA would have the information.


Senator Stine asked what ethical code guides KHSAA and its dealings with corporate partners. Ms. Myatt said KHSAA has a code of ethics and a conflict of interest statement in its operating procedure manual.


Senator Stine asked if the expenditures on physical plant and equipment listed in the report included automobiles. Mr. Hager said it includes their building and computers but does not include automobiles.


Senator Stine asked how many automobiles they have. Mr. Hager said KHSAA has five.


Senator Stine asked who audits their accounts. Mr. Hager said that Stivers and Associates is the auditor.


Senator Stine asked about regional investigative committees mentioned in the report. She asked if committee members would be involved in eligibility decisions about students at competing schools. Ms. Myatt said that they are not decision makers and would not be making recommendations if there was a conflict of interest.


Senator Stine asked if commissioners have any relationship to any school. Mr. Hager said no.


Representative Simpson asked if school districts can be assessed for the association’s legal fees in eligibility cases. Mr. Hager said yes unless the school can prove it was not involved in the case.


Representative Simpson asked if KHSAA made the new changes willingly or at the insistence of the Administrative Regulations Review Subcommittee. Mr. Hager said he did not know what the association planned to do but his impression from attending a subcommittee meeting was that the changes were made at the insistence of the subcommittee.


Brigid DeVries, Commissioner, and Julian Tackett, Assistant Commissioner, from KHSAA responded to the report. Ms. DeVries said that they concur with the recommendations and look forward to implementing them.


Senator Pendleton said that he had not received a response to a letter he sent to KHSAA. He asked who has oversight as to where the football playoff games are played. Mr. Tackett said the home school determines where the game is played. In the case referred to by Senator Pendleton, the home school’s stadium was not adequate and the school chose a stadium in Tennessee.


Senator Pendleton said that Kentucky schools should not be providing economic benefits to another state by playing in Tennessee. He wanted to see details on the finances. Mr. Tackett said that he would provide the financial information when it became available. He said he would relay Senator Pendleton’s concerns.


Senator Stine asked who the corporate sponsors are. Mr. Tackett said PNC Bank sponsored the boys basketball tournament. Houchens Industries and various smaller partners are also partners. He said they try to have sponsors for all events. 


Senator Stine asked how often and by whom is KHSAA audited. Mr. Tackett said they are audited every year. He said they were previously audited by Miller, Mayer, Sullivan, and Stevens but switched this year to Stivers and Associates. The audit is expected to be completed in January 2010. He said the last five audits were on their Web site.


Senator Stine asked if employees of the association belong to the state retirement system. Mr. Tackett said employees with college degrees are in the Kentucky Teachers’ Retirement System. Others are in the Kentucky Retirement Systems.


Senator Stine said that in the Mitchell case, the school and coach were penalized even though the student was eligible to play sports according to the courts after prolonged litigation. The high school was fined $1,500 and the coach was suspended for two games. This was done before litigation was complete. She asked if restitution had been made to the school. Ms. DeVries said there was not an appeal by the school and coach, so no restitution has been made.


Senator Stine said that an injustice had been done that has not been addressed. She said that Bylaw 33, which allows for the association to require schools to pay its legal fees in some cases, has a chilling effect. She asked if they would consider removing this from the bylaws. Mr. Tackett said this bylaw was initiated by the schools. They will discuss the removal of the bylaw at the January board meeting.


Representative Simpson asked how KHSAA decides whether to seek reimbursement and how much to collect. Ms. DeVries said there has been no reimbursement of legal fees in the past 3 years.


Representative Simpson asked if the association would support legislation to make the requirements of the federal decree regarding composition of the board of control part of Kentucky law. Mr. Tackett said the board would be amenable to this.


Representative Upchurch asked how frequently they had changed auditors prior to this year. Mr. Tackett said they had used the same auditor every year but changed the lead staff each year. He said they will now be changing auditors every 3 to 5 years.


Representative Upchurch asked if there is any reason the state auditor does not audit KHSAA. Mr. Tackett said no one had asked for such an audit.


Representative Meeks asked what KHSAA spends on audits. Mr. Tackett said they spent $18,000 on audits this year.


Senator Stine asked if the Program Review and Investigations Committee can make a recommendation for KHSAA to be audited regularly by the state auditor. Representative Meeks said yes.


Representative Simpson made a motion that the Program Review and Investigations Committee make a recommendation that the state auditor audit KHSAA regularly. Senator Stine seconded the motion, which was approved by voice vote.


The Kentucky High School Athletic Association report was approved by roll call vote upon motion made by Representative Simpson and seconded by Representative Combs.


Van Knowles presented the report School Health Services for Students With Chronic Health Conditions in Kentucky. He said this report examines the efforts schools make to ensure that students with diabetes, asthma, severe allergy, and epilepsy are able to participate in school safely and to learn while there. All these conditions are chronic and have potentially life-threatening complications; most require some kind of regular care during school hours.


He said the report has eight major conclusions.  1) Most school personnel and school nurses appear motivated to provide the best possible care for all students.  2) In many schools, health services staffing is inadequate. Some parents and school staff members have reported inappropriate care or inappropriate limitations on care for students with chronic health conditions. 3) Multiple federal and state laws and regulations govern school health services and leave many open questions about what services schools are obligated to provide and how they should provide them. School districts do not fully understand their obligations and the requirements for providing health services. 4) The Kentucky Department of Education (KDE), while providing some guidance and technical assistance, does not exercise oversight of school health services and does not utilize its student information system effectively to track health services. Other agencies regulate aspects of school health but do not actively monitor services. Coordination has been limited but has improved. 5) Local health departments employ more school nurses than school districts do. Coordination with school districts is good in many cases, but sometimes health departments and schools disagree on the services needed. 6) Unlicensed school staff supplement nurses in many school districts in Kentucky and across the country. There is disagreement even within the medical and nursing professions on the extent that unlicensed staff should provide care. 7) Many districts cite funding limitations as a reason for limited health services, but some districts in relatively impoverished counties have exemplary health services. 8) Medicaid has become a crucial funding source for school health services because most health departments can bill Medicaid for school health services and school districts cannot. However, health departments in the 16-county Passport managed care region cannot bill Medicaid.


He said the reported number of students known to have asthma and epilepsy are significantly below the expected numbers, possibly because many students with those conditions are able to manage their symptoms without informing the schools. The reported number for severe allergy overstates the number with truly life-threatening allergy, but schools have to assume that anyone who might have such an allergy actually does.


Mr. Knowles said multiple federal and state laws and regulations govern levels of care that schools must consider. 1)  The Individuals with Disabilities Education Act establishes the rules for determining the services needed for students with significant disabilities affecting their ability to learn, including health services for conditions that contribute to the education difficulty. 2) Most students with chronic health conditions would be considered to have a less severe disability under Section 504 of the Rehabilitation Act of 1973, which requires schools to determine what accommodations are needed to ensure participation in school and related activities. 3) Some students with chronic health conditions might not be considered to have a disability, but might still need health services during school and school activities; they are covered by KRS 156.502 and other Kentucky statutes.


He said federal disability laws leave many open questions about what services schools are obligated to provide and how they should provide them.  Kentucky has resolved some open questions but some federal ambiguities remain and some issues have arisen with Kentucky’s laws.  Recommendation 2.1 is that the General Assembly may wish to consider establishing or clarifying school health policy in the following areas, within the limits of federal disability laws: 1) minimum staffing requirements for school health services; 2) the meaning of “any necessary arrangement” in KRS 156.502;  3) whether districts must provide health services at all school-related programs and activities; 4) whether districts must provide health services in the school a student would ordinarily attend; 5) how districts should provide for students with prescriptions for emergency medications not mentioned in statute; 6) how districts should provide for students with prescriptions for new treatments not mentioned in statute; 7) how districts should respond to parent and physician requests for students to carry and self-administer medications not mentioned in statute; 8) the discretion districts should have when students with permission to carry medications misuse them; 9) whether there should be a written individual health care plan for all students needing routine or emergency care; 10) provision to protect physicians who agree to be district medical directors; and 11) the role parents and their designees, including school employees, may have in providing health services to their children in school.


Mr. Knowles said KRS 156.502 states that school health services shall be provided by physicians or nurses or unlicensed people they delegate. The overwhelming number of licensed health professionals in school districts are registered nurses and that is what the report focuses on.


He said local health departments employ a greater portion of school nurses than school districts do. Coordination with school districts is good in many cases, but sometimes health departments and schools disagree on the services needed. The Department for Public Health allows health departments to provide direct school health services but requires the health departments to accept full liability for those services. In addition, sharing of student health information between health departments and school districts is restricted based on a concern with federal health privacy law. Recommendation 3.1 is that the Department for Public Health should advise local health departments on ways to meet school district needs with a reasonable liability risk and to share health information with the schools as needed. If necessary, the department should request that the General Assembly grant liability protection so that health departments may better serve school health needs.


Mr. Knowles said KDE has not adequately monitored agreements between school districts and health departments and other contracted providers. Recommendation 3.2 is that the department should require school district agreements with outside health service providers to be in writing. Agreements should describe the responsibilities of both parties and be submitted to the department.


He said staff identified several different models for delivering school health services. Many of the models involved nurses from more than one employer. Of the 168 school districts responding to information requests, 49 indicated having nurses from more than one employer, usually including the district itself. Of those, 42 indicated shared responsibility for supervision between the school district and the other employer.


He said most school districts also used trained, unlicensed school personnel to assist nurses.  Some districts struggled to have an effective model that meets all the requirements of school health services.


Mr. Knowles said several school districts reported depending on parents to provide care to their children at school and especially on field trips. In some schools, parents recruited and trained school staff to provide care for their children, a practice that might be illegal. He said districts may not require a parent to perform health service tasks and may not deny attendance and participation because of a lack of health services.


He said some school districts do not fully understand their obligations and the requirements for providing health services, and some appear not to be meeting the minimal requirements. Recommendation 3.3 is that KDE should require all school districts to submit descriptions of their school health services models, policies, and procedures and to update them on a regular basis. The descriptions should be adequate to determine whether districts meet minimum requirements for providing health services. The department should include guidance to districts on these requirements. If necessary, the Kentucky Board of Education should promulgate regulations to authorize such reporting.


Mr. Knowles said that Program Review staff identified 31 issues, including some of the issues listed in Recommendation 2.1, which KDE and the other agencies might resolve. Because most of these issues involve nursing and medical practice, staff did not propose specific resolutions. Rather, staff recommended that the agencies work together on a comprehensive solution.


He said some of the issues concerning Unlicensed Assistive Personnel (UAP) under KRS 156.502 that need clarification are that 1) UAPs must be properly trained and demonstrate competency to perform each task; 2) UAPs must be delegated and supervised by a nurse or physician; 3) UAPs must be assigned to specific students; and 4) most school personnel may refuse to be UAPs, unless it is part of their contract or job description. He said nursing regulations and guidelines require a nurse to evaluate each student and determine whether it is prudent to delegate health service tasks. He said KDE does not monitor the procedures used by districts to delegate and supervise UAPs.


He said issues regarding delegation of insulin need clarification.  There is agreement that nurses are the best choice to administer insulin.  There is disagreement on whether UAPs should administer insulin when nurses cannot.  Practicing physicians and advocates argued that UAPs can do it as well as parents can. Care for some students with diabetes is complex and difficult even for parents; it would be unwise to delegate for such students.


Mr. Knowles said questionable health service practices have been reported by parents and school staff. Some of these gaps and lapses in care indicate occasional violations of state or federal requirements. For example, schools may not always have someone present to administer emergency medication for a student with diabetes or epilepsy as required by Kentucky statute.  In some instances, students with high or low blood sugar were sent to the office alone to receive care. Some schools prohibit students from carrying asthma inhalers despite the statutory procedure to allow it.  Some schools do not allow students with diabetes to attend school unless a parent can come to administer insulin.


He said several agencies have oversight authority over aspects of school health services, but the agencies do not actively monitor the way school health services are provided. He said the Kentucky Board of Education and KDE have the primary responsibility and should take the lead in regulating and overseeing school health services. The department, while providing some guidance and technical assistance, has not assigned adequate resources to school health, does not monitor or exercise oversight of school health services, and does not utilize its student information system effectively to track health services.  Recommendation 3.4 is that the Kentucky Board of Education and KDE should take the lead to ensure compliance with current and future statutes and regulations. They and the Kentucky Department for Public Health, Board of Nursing, and Board of Medical Licensure, in consultation with other stakeholders, should collectively review the issues identified in this report. Using their respective authorities, they should develop comprehensive school health regulations, advisory opinions, and advice for school districts, health departments, nurses, and physicians. These should be mutually consistent, should address statutory ambiguities, and should establish minimum requirements for school health services, with flexibility for justifiable variations among districts. If statutory changes would be helpful, the agencies should propose such changes to the General Assembly.


Mr. Knowles said many districts cite funding limitations as a reason for limited health services, but some districts in relatively impoverished counties have exemplary health services, often in cooperation with health departments. Most school districts pay for their health services out of the general fund, which consists primarily of local tax funds and state education funds. Other sources include Medicaid, federal disability funds, and grants.


He said because of federal disability laws and the Medicaid “free care rule,” schools may not bill Medicaid or most insurers for students. Health departments may bill Medicaid because of a federal exemption for recipients of Maternal and Child Health (Title V) funds, even though most other insurers do not cover their nursing services. As a result, health departments have taken on a greater role, growing by 31 percent between FY 2008 and FY 2009.


Mr. Knowles said private insurance might be another source of revenue for school health if it would cover nurses who are not under direct supervision of a physician. School health providers also would be able to bill for students with disabilities if families did not have to pay out of pocket. Recommendation 4.1 is that the General Assembly may wish to consider whether to require private insurers to cover school health services provided by registered nurses and licensed practical nurses. It also may wish to consider ways to permit school health providers to receive reimbursement without requiring families to pay out of pocket, so that the providers may bill for services to students with disabilities.


Mr. Knowles said that although Medicaid covers school health services in other parts of the state, the Passport Medicaid managed care organization does not. The Passport region includes Jefferson County and 15 nearby counties.


He said Program Review staff found that the number of schools per nurse and number of students per nurse inside the Passport region were at least twice as high as outside the Passport region. Staff also noted that school districts’ own expenditures per pupil were higher in the Passport region than in any other region. He said payment for school health services would have to come from existing programs. He said Passport, Medicaid, the Department for Public Health, and health departments have held discussions. Passport has proposed partial coverage, but so far no agreement has been reached.  Recommendation 4.2 is that the Department for Medicaid Services, Department for Public Health, local health departments, and University Health Care, Inc., should continue to seek an equitable method to cover school health services for students enrolled in Medicaid in the Passport region. If they are unable to reach an agreement, the General Assembly may wish to consider whether it can establish a solution within or outside of the Medicaid managed care waiver.


Mr. Knowles concluded that districts may look at options for providing adequate care at the lowest cost, including use of UAPs and sharing costs with health departments. He said some states, such as Virginia, Tennessee, and Georgia provide additional funding for school nurses. South Carolina uses some Title V funds to allow school districts to bill Medicaid. He said Medicaid and some insurers do not cover a second prescription for medication or equipment needed at school.


Representative Butler complimented the report and pointed out the needs for school health services. He said he was surprised at the low number of school nurses per school in the Passport region in comparison to the rest of the state. He asked about the training of non-certified personnel. Mr. Knowles said those who had been trained had a fairly high willingness to continue, and nurses said the training was adequate.


Representative Butler asked about the use of emergency medical technicians (EMTs) to provide services. Mr. Knowles said staff did not learn of any districts using EMTs but several were using certified medical assistants.


Representative Butler said the questionable practices identified in the report are unacceptable; for example, sending students with high or low blood sugar to the office alone. He said an informational campaign is needed. Kay Kennedy, Director of the Division of District Operations, Kentucky Department of Education, said a written response to the report had been provided.


Representative Meeks asked about the cost of implementing the recommendations, including how many additional staff would be needed. Ms. Erwin said she would provide this information.


Sandi Clark, Pediatric and School Nurse Consultant, Department of Public Health, responded to the report.  She said that public health departments are required to provide mandated services. School health is an option health departments may provide if all local mandated services have been met. Therefore, some health departments can provide school health services and others cannot. She said that when a health department is in the school building, it is considered a satellite and may bill just as if it were in the health department. She summarized recent training efforts by the department, including a contract with the University of Louisville to provide a workshop for school nurses.


Representative Simpson asked about attendance at the workshop. Ms. Clark said 89 attended this year. In the previous year, there were more than 100 in attendance.


Representative Meeks asked if the training is moved around the state. Ms. Clark said it is not due to the contract with the University of Louisville, but that online training is available.


Representative Meeks asked how many nurses would be needed to put a nurse in every school. Ms. Erwin said most states focus on elementary and middle schools, and she can get that number for him.


Representative Meeks asked for models used in other states. Nathan Goldman, General Counsel for the Kentucky Board of Nursing, read a written statement.  He said the board put together its own task force to study the issue of health care for school children.  He said one of the outcomes of that group is the development of a training program that will provide a consistent, standardized training on medication administration by unlicensed personnel.  He said the Board of Nursing would work with KDE, the Department of Public Health, and any other interested agency or party to find solutions to these issues to insure that school children receive high quality health care.


Sharon Mercer, Practice Consultant for the Kentucky Board of Nursing, said only nurses or physicians can delegate medical duties according to statute. EMTs cannot dictate to other employees.


Representative Butler clarified that EMTs could be on the staff and be designated by a nurse or physician. Ms. Mercer said she was surprised that not all schools had someone to do emergency medications. She was pleased with the recommendation to pull departments together to decide on these issues.


Stewart Perry, former chair of the board of the American Diabetes Association, read a written statement. He said the association supports administration of medication by trained, nonmedical personnel. He said there should be a comprehensive policy for all the problems with diabetes in a school setting.


Debbie McGrath, Executive Director of the Epilepsy Foundation Kentuckiana, said that the number of students with epilepsy in the report is too low. She said her organization provides school nurse training for epilepsy and seizure disorders. She said the department needs more than one nurse to deal with all the issues such as diabetes and epilepsy. She said medication can be administered by nonmedical people who are trained. She wants to work with other groups across the board to train unlicensed people to administer various medications.


Representative Meeks asked if there are models for training. Ms. McGrath said yes. She said Kentucky was the first state to make a law that Diastat may be administered by unlicensed personnel.


The meeting was adjourned at 1:00 p.m.