Program Review and Investigations Committee




<MeetMDY1> October 11, 2012


Call to Order and Roll Call

The<MeetNo2> Program Review and Investigations Committee met on<Day> Thursday,<MeetMDY2> October 11, 2012, at<MeetTime> 10:00 AM, in<Room> Room 131 of the Capitol Annex. Representative Fitz Steele, Chair, called the meeting to order, and the secretary called the roll.


Present were:


Members:<Members> Senator Jimmy Higdon, Co-Chair; Representative Fitz Steele, Co-Chair; Senators Tom Buford, Vernie McGaha, Joey Pendleton, Dan "Malano" Seum, and Brandon Smith; Representatives Leslie Combs, Jim DeCesare, Terry Mills, Ruth Ann Palumbo, Rick Rand, and Arnold Simpson.


Guests: James Grace, Assistant Director; Diane Glenn, Medical Support Section, Nurse Administrator; Division of Protection and Permanency, Department for Community Based Services, Cabinet for Health and Family Services. Eric Friedlander, Deputy Secretary; Beth Jurek, Executive Director, Office of Policy and Budget; Cabinet for Health and Family Services.


LRC Staff: Greg Hager, Committee Staff Administrator; Chris Hall; Colleen Kennedy; Lora Littleton; Jean Ann Myatt; William Spears; Joel Thomas; Leonard Evans, Graduate Fellow; Jenna Skop, Graduate Fellow; Stella Mountain, Committee Assistant.


Approve Minutes for September 13, 2012

Upon motion made by Senator Buford and seconded by Senator Higdon, the minutes of the September 13, 2012 meeting were approved by voice vote, without objection.


Staff Report: Medically Fragile Foster Children

Colleen Kennedy, Leonard Evans, and Joel Thomas presented the report. Ms. Kennedy said that medically fragile foster children are those with medical conditions that require special care and monitoring. They need to be placed in foster homes that meet specified requirements with foster parents who have received special training. The number varies over time, but as of May 2012, 116 foster children in Kentucky were designated medically fragile. The designation is based on the level of care the foster parent must provide, not specified diagnoses.


A specialized medically fragile child requires an even higher level of care. The home must have a foster parent who is a health professional. This category represents a very small percentage of children in the medically fragile system.


The Division of Protection and Permanency of the Department for Community Based Services (DCBS) administers Kentucky’s foster program. A Medical Support Section nurse administrator oversees the medically fragile portion. The nurse administrator makes the final decision as to whether a child is to be designated medically fragile. DCBS also has a caseworker in each of its nine regions who doubles as a medically fragile liaison between the social worker, the foster family, and the nurse administrator. When a child receives a medically fragile designation, a nurse consultant with the Commission for Children with Special Health Care Needs is notified and becomes part of the child’s team.


DCBS has agreements with a number of private placement agencies that are used if a DCBS home is unavailable or a child requires care unavailable in a DCBS home. Nearly one-half of foster placements are within DCBS homes, and more than one-third with private agency homes.


Ms. Kennedy described the process by which children are designated medically fragile and the types of medically fragile foster homes.


All medical care given to children in foster care must be documented. Each child is issued a Medical Passport binder, which is a repository of the child’s health information, ongoing procedures, and appointments. The foster parents are responsible for updating and maintaining the Medical Passport. Concerns have been raised that this may not be the best way of ensuring that all necessary care is taking place, or of allowing all team members involved, including physicians, necessary access to the child’s medical history.


Recommendation 1.1 is that an electronic system should be created to replace the paper medical passport. Policies and protocols for accessing the information should be developed.


An Individual Health Plan must be created within 30 days after a child receives a medically fragile designation. The plan assesses the actions needed to address the child’s medical needs, as well as a follow-up plan. It is to be updated every 6 months. Based on Program Review staff’s analysis of the May 2012 cohort of 116 medically fragile cases, an Individual Health Plan was created within the 30-day regulatory time period in about 55 percent of cases. In 13 percent of cases, it took longer than 90 days to create the plan. In September 2012, the cabinet revised a Standard of Practice to address this issue.


The DCBS Medical Support Section nurse administrator is responsible for coordinating input from all team members and foster parents, and collecting all information and data related to medically fragile children. If the nurse administrator is involved in another case or is away, there is no backup. The nurse administrator does not have managerial authority over other team members and must gather important data for record-keeping by personally contacting others in the system individually.


Recommendation 1.2 is that the cabinet should consider adding staff to the DCBS Medical Support Section to increase support and timeliness of the coordination needed to maintain the medically fragile system’s foster homes.


Mr. Thomas said that medically fragile foster parents must meet the same requirements as regular foster parents and must have solid references and performance records. Both DCBS and private agency medically fragile foster parents must take DCBS-sponsored training. Medically fragile training is composed of three modules: the 2-hour online prerequisite course, the Join Hands Together program, and CPR/First Aid. Join Hands Together is offered five times a year. It educates and certifies DCBS resource homes, private agency foster families, and respite providers. The medically fragile training program is conducted by the University of Kentucky’s Training Resource Center.


Once the initial 24-hour medically fragile training is complete, foster parents are then required to maintain their medically fragile certification through the completion of 16 hours of additional annual training and CPR/First Aid recertification. Annual training is offered twice a year with two make-up sessions. Training sessions are presented by medical professionals who volunteer their time. Training expenses incurred by DCBS foster parents may be reimbursed up to $200 per year.


Respite care is temporary care for medically fragile foster children to provide relief for foster parents. Reimbursements for respite care are calculated at the level of care per diem rate. Medically fragile homes receive 3 days per month of respite care, and specialized medically fragile homes receive 4 days per month.


Respite care providers must complete the initial medically fragile training program but are exempt from annual retraining sessions because they receive training specific to their medically fragile child. Lodging and food expenses are not reimbursed for prospective respite care providers. Although the current training structure is not conducive to recruiting respite care providers, DCBS is revising the 2-day schedule to include a larger online component.


As of May 2012, the two most common diagnoses of medically fragile foster children were diabetes (23 percent of children) and epilepsy (20 percent). Of these 116 medically fragile children, 29 had been classified as medically fragile for 6 months or less, 25 for 7 to 12 months, and 21 for 13 to 24 months. The median length of time classified as medically fragile was 14 months.


Mr. Evans said that foster care medical costs are paid through Medicaid. A medically fragile designation does not affect Medicaid funding. Medically fragile per diem payments cover the cost of housing, food, clothing, daily supervision, school supplies, incidentals, liability insurance, and local travel. The medically fragile maintenance per diem rates are $40 to $48. The specialized medically fragile rates are $56 or $91, depending on the training of resource parents and the level of care provided.


Private placement agencies are community-based, mostly nonprofit organizations providing resource home care for medically fragile foster children. Facilities of placement include licensed resource homes and residential child caring facilities such as pediatric convalescent centers. It is DCBS policy to use private placement agencies as a resource of last resort. A level 3, 4, or 5 is assigned to each foster child in private placement. Each elevation in the level of care represents an elevation in the level of supervision needed in the home. Level 5 includes children with emotional and behavioral disorders. In FY 2010, 22 children were designated a level 5 private placement, more than double the number of placements in levels 4 and 3.


Funding for the medically fragile program comes from the same sources as funding for the general foster care population. Title IV, part E of the Social Security Act authorizes federal funding through the Department of Health and Human Services for foster care services. This is the largest nonstate source of funding for medically fragile foster care services. Other sources of funding include the Supplemental Security Income (SSI) program and child support payments from the birth home. In FY 2010, federal Title IV-E funding covered 32 percent of Kentucky’s medically fragile costs. Other restricted funds, such as SSI, covered 29 percent. Kentucky general funds covered the remaining 39 percent.


Because there is no distinct budget allocation for medically fragile foster care cost or services, training and administrative costs for medically fragile foster care could not be separated from the general foster care population. It is known that more than $117,000 has been allocated for Fiscal Year 2013 to the University of Kentucky’s Training Resource Center dedicated to its annual training program for specialized medically fragile foster families.


In FY 2010, federal Title IV-E funding was nearly $928,000; Kentucky’s match was nearly $376,000. Title IV-E reimbursements and state matches in Fiscal Years 2011 and 2012 are lower at this time but will be adjusted as more reimbursements are added retroactively.


Ms. Kennedy said that the forms submitted to Title IV-E are reimbursable based on correct boxes being checked by the court. Before a child is placed in foster care, there must be a showing that reasonable efforts were made to keep the child in the home. This must be documented in the court order. Some Title IV-E reimbursement claims are filed without the correct court documentation in this regard. Reasonable efforts may not have been made, or the court itself may not have checked the box on the court order. The court order must also document, by means of checked boxes, that it is contrary to the child’s welfare to remain in the home and that it is in the best interest of the child to be removed from the home. Not checking the boxes is often a procedural oversight by the court.


In FY 2010, the payments that were not reimbursable under Title IV-E because of these procedural errors totaled $370,316. The amounts not reimbursed for these reasons have decreased to about $225,000 in FY 2011 and $104,000 in FY 2012. Cabinet officials note that this is being addressed on an ongoing basis via education programs for judges, court personnel, social workers, and others involved in the process.


Senator McGaha said that the report indicated that foster parents were reimbursed for training but that the presentation said that they “may” be reimbursed. Mr. Thomas said that they are reimbursed.


In response to a question from Senator McGaha, Mr. Thomas said that respite care providers do not pay training costs but are not reimbursed for travel, lodging, and food.


In response to a question from Senator McGaha, Mr. Thomas said that it is preferred that a respite care provider is someone from the foster parent’s family.


Senator McGaha said that getting respite care is difficult; the travel and lodging costs related to training are burdensome. Mr. Thomas said that DCBS is working on revising the training schedule to have more online training to reduce the in-person training to one day.


Senator Buford said that autism was not among the diagnoses of medically fragile shown in the presentation. Ms. Kennedy said that no children who were medically fragile as of May 2012 were listed with this diagnosis. The diagnoses for the current group of children could be different.


In response to a question from Senator Buford, Ms. Kennedy said that Program Review staff did not estimate the cost of additional staff for the Medical Support Section as covered in Recommendation 1.2. It is possible that a part-time staff person would be enough. The concern is that there is no backup when the nurse administrator is called away.


Senator Buford said that there is probably a fixed amount of funding in this area. Adding staff could reduce funding for provision of services.


Representative Palumbo described a situation in Fayette County in which neighbors have questioned foster parenting skills in a home. Representative Palumbo has called about this herself. There is concern that the parents are misusing reimbursement money. She asked if foster parents are required to turn in receipts. Ms. Kennedy said that they could in some circumstances, but that cabinet staff could better address this question.


Representative Palumbo asked how is it determined what the child support payment is from birth parents. Ms. Kennedy said that birth parents who do not meet the deprivation standard for foster care, but do not have the resources to care for a medically fragile child, can still provide financial support.


In response to a question from Senator Seum, Ms. Kennedy said that a medically fragile case could be initiated by a caseworker or a physician, or a caseworker could notice conditions meriting medically fragile status for a child already in foster care.


In response to a question from Senator Seum, Ms. Kennedy said that courts decide if a child enters the foster system but that courts do not designate a child as medically fragile.


Mr. Grace said that the medically fragile designation was established years ago to provide for the care of foster children with extreme medical needs. The nurse administrator makes the designation as medically fragile. The hope is that the designation for a child is short term but it can be long term.


Ms. Glenn said Type I diabetes is becoming more common as a reason for being medically fragile. Being medically fragile is traumatic for children and parents. It is important that children be prepared to cope as adults.


Mr. Grace, referring to Senator Buford’s earlier question about autism, said that unless an autistic child has related physical health needs, the child would not be designated as medically fragile. Behavioral issues would be dealt with through other programs.


Ms. Glenn expressed appreciation for Commission for Children with Special Health Care Needs nurses.


In response to a question from Senator Seum, Ms. Glenn said that the cabinet is always recruiting and is considering targeting retired people as potential foster parents.


Representative Steele said that he would like a phone number to be provided to committee members for situations like that described by Representative Palumbo.


In response to a question from Senator McGaha about Recommendation 1.2, Mr. Grace said there is discussion about providing administrative support for the nurse administrator. It is not a question of needing help with decision making.


Senator McGaha asked whether having tiered decision making affects responding to medical emergencies. Mr. Grace said that medical decisions are made in the field. It is the process of designating a child as medically fragile that is tiered.


Senator McGaha asked if there is any anecdotal evidence of problems due to lack to staff. Ms. Glenn said lack of support can be an issue when she is on vacation. Mr. Grace said that he can fill in to help with the designation process. Ms. Glenn said that timeliness is an issue when deciding what kind of foster home is needed.


Senator McGaha asked whether an autistic child who suffers seizures and requires injections would be designated as medically fragile. Ms. Glenn said that autism in itself would not result in medically fragile status, but if there were seizures or the child was diabetic, the child would be medically fragile.


Senator McGaha asked if it was a failure of the courts that the appropriate boxes are not checked on a form to qualify for Title IV-E funding. Mr. Grace said that there are a number of factors. AOC [Administrative Office of the Courts] and DCBS [Department for Community Based Services] have worked to revise the forms, which are now electronic. He said this problem occurs in a small percentage of cases.


Upon motion by Senator Higdon and second by Senator McGaha, the report was adopted by roll call vote.


Staff Report: Implementation Status of Four Laws Related to Health and Welfare

Christopher Hall, Lora Littleton, and Jean Ann Myatt presented the report. Mr. Hall said that HB 501, enacted in 2003, directs the chairperson of the 144 Commission to appoint a subcommittee for making recommendations on how to implement a self-determination model of funding services within the Supports for Community Living Program. The subcommittee was created and reported its recommendations for a pilot program before the 144 Commission in December 2003. The 144 Commission voted to accept the subcommittee’s report and recommendations, but delayed action in favor of endorsing HB 166 in 2004. Mr. Hall described HB 144 and its implementation.


Ms. Myatt said that the first provision of HB 322, enacted in 2004, requires a membership change to the State Interagency Council for Services to Children with an emotional disability. These changes were made. A second provision directs the 144 and 843 Commissions to establish a joint ad hoc committee to make recommendations related to individuals transitioning from the state’s children’s services systems to adult services systems. The ad hoc committee was not created. The third provision requires state postsecondary institutions to provide priority first-floor housing to students with disabilities and to allow off-campus housing if the school cannot provide the first-floor housing. State postsecondary schools reported to Program Review staff that they have implemented measures to ensure compliance with this provision.


Mr. Hall said that HB 671, enacted in 2004, requires the Cabinet for Health and Family Services (CHFS) to conduct an internal review of any case in which child abuse or neglect resulted in a child fatality or near fatality, and in which the cabinet had prior involvement with the child or family. The cabinet does have standard operating procedures in place for conducting the internal reviews.


HB 671 also requires the cabinet to submit an annual report to the governor, the General Assembly, and the state child fatality review team. Reports since 2004 are available on the cabinet’s website. The Program Review report suggests that the use of different statistical techniques could improve the cabinet’s ability to identify cases in which the risk for child fatalities or near fatalities is highest. Also, better explanation of actions taken by the cabinet is needed.


Ms. Littleton said that SB 23, enacted in 2005, has two primary components: a legend drug repository program and the Kentucky Pharmaceutical Assistance Program. The legend drug repository program was not implemented. Officials from CHFS noted concerns with implementing that program and said that the need is addressed by other programs. Creation of the Kentucky Pharmaceutical Assistance Program was contingent upon approval and funding. A separate prescription assistance program, the Kentucky Prescription Assistance Program, has been created, but it is not the same program authorized by SB 23.


Ms. Jurek said that Program Review staff did a thorough job of describing the status of implementation.


Representative DeCesare said that he is getting many calls about the adult work program of LifeSkills in Bowling Green. Mr. Friedlander said that the relevant waivers were updated two years ago. Regulations are being updated—with a lot of public review. Regulations are changing reimbursement for all providers in the system. Individualized services are the priority. There is higher reimbursement for working in the community than in sheltered workshops. There have been major changes in regulations; the cabinet has more to do to clear up misconceptions. The regulations were not done as emergency regulations, which allows more time for comment.


Ms. Jurek said that many of these changes are being adopted in response to requirements by CMS [Centers for Medicare & Medicaid Services].


Representative DeCesare agreed that getting individuals into the community is important. The concern he is often hearing from parents is that their children do not have the capability to work in the community. It will be detrimental for caregivers if sheltered workshops are discontinued.


Representative DeCesare said that the death of an individual killed in Todd County is relevant to the discussion of HB 671. When a parent or student complains about a school, the cabinet is quick to act. It is not so quick to act when there is a school complaint against a parent. Mr. Friedlander said that it is a question of who has greater standing to lodge a complaint. The cabinet is in discussion with courts and schools as to how to improve. Ms. Jurek said that ways to communicate online are being added, but that there are still limits as to what can be done without violating confidentiality. Mr. Friedlander said that there was testimony last session about the length of time that physicians had to wait on the phone to make a complaint. Ms. Jurek said that the addition of an online system should help alleviate problems with phone waiting time.


Representative DeCesare asked why call centers and workers are located so far apart. Ms. Jurek said that call centers are expensive, and that staffing is done on a regional basis. The ways that people can make reports have been expanded.


Representative DeCesare said that his understanding is that the seriousness of a situation is determined at intake. All calls should be seriously considered. Ms. Jurek said that judges have been recruited to help with training. All calls are taken seriously but some are collateral, which means they do not involve abuse and neglect and are more appropriate for other agencies. The legal definitions of abuse and neglect are not always commonly understood. For example, no food in the house would not legally be abuse or neglect. A referral to a food bank could be appropriate. Mr. Friedlander said that what happened in Todd County is a tragedy for everyone involved. It revealed to the cabinet some holes in the system.


Representative DeCesare stressed that it is important to keep up the focus on this.


Senator McGaha said that what struck him about the staff report is that some legislation or parts of legislation are never implemented. He asked if there is a mechanism in place to inform LRC and a bill's sponsors that parts of a bill will not be implemented. Mr. Friedlander said that for SB 23, the cabinet should have reported concerns regarding implementation to the Health and Welfare Committee and the bill's sponsor. Ms. Jurek said that it is routine after every session for the cabinet to review legislation that was enacted. There is no formal process in place across the executive branch though; it is up to each cabinet and secretary.


The meeting adjourned at 11:51 a.m.