Republican legislators question cabinet's figures on managed-care payments and cost projections for Medicaid expansion

Audrey Haynes (cn|2 image)

"When Audrey Haynes sat down before the legislature’s Medicaid Oversight and Advisory Committee Wednesday, she expected the data she brought would persuade lawmakers that Kentucky’s expansion of Medicaid has been good for the state," Ronnie Ellis reports for CNHI News Service. "The secretary of the Cabinet for Health and Family Services, which administers the Medicaid program also may have expected her statistics to ease unhappiness with the state’s move to managed care for most Medicaid services."

"It didn’t happen," Ellis writes. "At least she didn’t persuade Republican members who openly questioned the validity of the cabinet’s data, a couple stopping just short of saying the cabinet is making up the numbers" about payments to providers by managed-care organizations, which it says are 99 percent on time. “The numbers do not appear to represent the reality on the ground,” Rep. Richard Benvenuti, R-Lexington, said after the meeting.

Sen. Ralph Alvarado

“I think those are false,” Sen. Ralph Alvarado, R-Winchester, said after the meeting. “I don’t know if they’re lying, but somebody is providing bad information.”

During the meeting, Alvarado read "segments of letters from providers who have not received full reimbursements from managed care organizations," reports Kevin Wheatley of cable channel cn|2's "Pure Politics."

"Haynes referenced a report from CHFS which showed that over 90 percent of Medicaid claims are being paid in a timely manner," reports the blog of the Kentucky Chamber of Commerce. "Sen. Alvarado replied that this statistic does not match what he is hearing from his constituents and medical providers." Haynes addressed the managed-care issue in her PowerPoint presentation, downloadable here.

Rep. David Watkins, D-Henderson, a retired physician and co-chair of the committee, "urged the panel to find ways to improve managed care."

Watkins said the managed-care organizations, which are insurance companies or their subsidiaries, should come before the committee to answer questions. “I’m not totally satisfied that they’re doing quite as good a job as your report here would portray,” he told Haynes. “I think they need to be more accountable. I think they need to be more responsive to the providers who actually are doing work in the field.”

The MCOs will appear before the joint House-Senate committee Aug. 19, Brad Bowman reports for The State Journal in Frankfort. For cn|2's three-minute clip of the discussion between Haynes and Alvarado, via YouTube, click here.

The Republican lawmakers also voiced skepticism, but offered no contrary evidence, about the cost of expanding Medicaid to households with incomes up to 138 percent of the federal poverty level, from the previous limit of 69 percent. Under the Patient Protection and Affordable Care Act, the federal government is paying the entire cost of the expansion until next year, when the state will begin paying a small part, rising to the law's cap of 10 percent in 2020.

Haynes noted projections for Democratic Gov. Steve Beshear's administration that the expansion would add $30.1 billion to the state's economy through 2021, and would pay for itself until then, even after the state starts picking up part of the cost. The numbers were not new; they were part of a study by Deloitte Consulting and the University of Louisville that Beshear released in February.

Republicans focused on the prediction that the expansion would cost the state a net $45 million in 2021. "I know that seems like a way long ways off and some of you may no longer even be in the position to deal with it, but some of us probably will and the taxpayers will," said Alvarado, a physician.

Haynes "stated that she believed with the financial boost to the economy through jobs, the costs will be offset," the blog of the Kentucky Chamber of Commerce reports.

“Now that we’re seeing the lowest unemployment that we’ve seen in our state in quite a number of years, I’m sure each of you are amazed at how that we’ve had all 120 counties in our state where the unemployment rate has gone down,” Haynes said. “As this state continues to generate revenue and hopefully, as is planned, this is a bridge program for people who basically are hard-working people, but their employer does not provide insurance or they have children and therefore that qualifies them from an income basis for Medicaid.”

Louisville opens first needle exchange in state; officials predict rural counties will be slow to follow

Photo by Scott Utterback, The Courier-Journal

Louisville Metro Public Health & Wellness opened its mobile needle-exchange program Wednesday, June 10, making Louisville the first place in Kentucky to implement such a program.

Lexington and Northern Kentucky are expected to follow soon, but officials say that establishing needle exchanges in much of Kentucky will be "more politically complex," Mike Wynn reports for The Courier-Journal.

"We're going to see some parts of our state where this is available and others where it is not," Scott Lockard, president of the Kentucky Health Departments Association, told Wynn. "Rural areas are opting for a slow and deliberate approach, heavy on education and dialogue," he said, and some communities won't even consider a exchange because of "seemingly endless hoops to jump through."

Bullitt County, south of Louisville, is a prime example. There, officials told Wynn that they plan to do a needs assessment and host a community forum with input from law enforcement and mental health experts.

"It's a work in progress," Public Health Director Andrea Renfrow told Wynn. "We are not able to go as quickly as Louisville Metro."

One critic, Magistrate Joe Laswell, told Wynn that he had talked to many voters who are against the exchanges and want to know why police wouldn't arrest addicts when they show up to swap out dirty needles. "I believe in charging and incarcerating," he said, apparently unaware that the addicts would need to have drugs in their possession to be charged.

Lockard, who heads the Clark County Health Department, told Wynn that he won't ask his board to take a vote until August and that he can't predict the political outcome when it goes to city and county officials.

In three other Bluegrass counties, Scott, Harrison and Nicholas, the board of the Wedco District Health Department wants to start a needle exchange, reports The Cynthiana Democrat, but can't proceed in any of the counties without approval of the fiscal court.

So, despite the two-year debate that just ended in Frankfort over the law, it's not really over.

Democratic state Rep. John Tilley of Hopkinsville, the legislature's biggest proponent for needle exchanges, told Wynn that giving city councils and fiscal courts final authority over the programs was necessary to sooth critics and pass a comprehensive heroin bill this year.

Opponents of the law say the exchanges promote drug use, while proponents cite evidence that doesn't support those claims, but instead "help prevent the spread of deadly and expensive diseases and pull addicts into treatment programs while keeping dirty needles out of parks and off the streets," Wynn writes.

A Lexington Herald-Leader editorial wrote about needle exchanges: "Congressional critics rely on a gut feeling that providing needles endorses drug use, but 20 years of research argues otherwise." Listing that where there are syringe exchange programs:

• Participants are five times more likely to get treatment.
• HIV and hepatitis C declines among drug users.
• Participants can get referrals to substance abuse treatment, disease prevention education, vaccinations, condoms, counseling and testing for communicable diseases.
• Costs are more than recaptured. A 2011 European study found that $1 spent on needle-exchange programs yielded $27 in health-care cost savings, prompting an international report to call needle exchanges "one of the most cost-effective public health interventions ever funded."

The federal Centers for Disease Control and Prevention recently reported that new cases of hepatitis C more than tripled in Kentucky, Tennessee, Virginia and West Virginia between 2006 and 2012, mainly from the use of dirty needles. Officials fear an outbreak of HIV and AIDS will follow.

State health commissioner backs needle exchanges, most controversial part of anti-heroin legislation passed this year

The Kentucky General Assembly cracked down in 2012 on "pill mills" that dispense painkillers irresponsibly, and addicts responded by going for heroin, creating a big problem in much of the state. The 2015 legislature passed laws to crack down on heroin, including local needle-exchange programs, the most controversial feature of the package.

In a column distributed to Kentucky newspapers, state Health Commissioner Stephanie Mayfield defends and promotes the local programs, which are subject to local approval.

“To some, a needle exchange may sound like a program that helps intravenous drug users feed their habit,” Mayfield writes. “To the contrary, the intent of an NEP is to protect public health and create a path for heroin users to get treatment while preventing the spread of diseases through the sharing of needles.

Needle exchanges reduce the number of HIV/AIDS and hepatitis cases in a community, Mayfield writes. "The use or even the accidental stick of a dirty needle can lead to hepatitis, HIV/AIDS infection and other dangerous diseases. . . . About 15 percent of all HIV cases that have occurred in Kentucky have been among injecting drug users."

Stephanie M. Gibson

Mayfield also says needle exchanges protecting people from accidental sticks from dirty needles discarded in public places. "Intravenous drug users submit dirty needles to the NEP for proper disposal in exchange for clean needles," she writes. "Researchers have also found that injecting drug users who participated in an exchange were more likely to reduce or stop injecting than drug users who had not participated in a needle exchange."

Research has also shown that needle exchanges "do not encourage the initiation of drug use nor do they increase the frequency of drug use among current users," Mayfield writes, noting that there are 203 such programs in 34 states.

"The presence of NEPs in communities does not expand drug-related networks nor does it increase crime rates. . . . Needle exchange programs actually create a path for injecting drug users to get help because the programs offer information on how to find available treatment options. In fact, NEP participants are more likely to enter a drug treatment program than nonparticipants."

More recent studies show that needle exchanges "provide opportunities for disease testing and education leading to a decline of at-risk behaviors, resulting in HIV incidence dropping as much as 80 percent within this population," Mayfield writes. "Many Kentucky communities are desperate for the ability to reach out to members who suffer from addiction, to help slow the spread of diseases and provide treatment referrals to people they might otherwise never have the chance to reach. This law gives them that opportunity."

Advocates of state appeals for Medicaid managed-care claims make last-ditch effort to get it passed, by hijacking another bill

By Melissa Patrick
Kentucky Health News

FRANKFORT, Ky. -- Advocates of a bill to create a state appeals process for health-care providers to appeal decisions of Medicaid managed-care companies are trying to jam it through at the end this short legislative session on the coattails of an unrelated bill that appears to be uncontroversial.

Rep. Joni Jenkins

Senate Bill 120, sponsored by Sen. Ralph Alvarado, a Republican physician from Winchester, would create an administrative appeals process in the Cabinet for Health and Family Services, which opposes the idea. A Senate committee has attached Alvarado's language as an amendment to House Bill 71, sponsored by Rep. Joni Jenkins, D-Louisville, that would allow judges to order a person who is "incapacitated by alcohol and other drug abuse" into treatment.

"I think it has the potential of killing this bill," Jenkins said in an interview. "I heard there was a really large price tag put on [Senate Bill 120], a large fiscal load. So this late in a non-budget year, it is probably going to kill it."

Sen. Julie Raque Adams, chairperson of the Senate Health and Welfare Committee, disagreed. "Everybody in the Senate [is] very supportive of Rep. Jenkins' bill, and we have also passed out Senate Bill 120 from this chamber," she said in an interview.

SB 120 passed the Senate 35-0 on March 2. HB 71 passed the House 90-1 on Feb. 26.

Rep. Robert Benvenuti of Lexington, Republican co-chair of the Democrat-controlled House Health and Welfare Committee, said he thought SB 120 "has a lot of support" on the House floor if leaders of the House's Democratic majority allowed it to come up for a vote.

But to get a floor vote it must first come out of the committee, and that appears unlikely. The legislature can still pass bills on March 23 and March 24, after the 10-day recess for Democratic Gov. Steve Beshear to veto bills, but if he vetoes bills passed then there is no opportunity to override vetoes.

"I think it is a bill that properly sets up a process for providers who believe they have not been properly reimbursed to have some redress," Benvenuti said in an interview. "Our health care providers who serve this commonwealth need to have an avenue of redress so that they can be properly paid for medically necessary services that they provide."

Alvarado has said an administrative appeals process is necessary because managed-care organizations are denying claims for medically necessary treatments and then denying the providers' appeals, which means providers are not getting paid for their work.

The cabinet says it should not be responsible for an appeals process for MCOs because they do not have any legal authority between a contract made between a provider and the MCO. They have also said it would cost the state money. MCOs are paid a flat fee for each person whose care they manage, but an increase in approval of initially denied claims could give them leverage in negoiations for the next annual contract.

The fiscal note for this bill says the cabinet estimates its administrative cost for an appeals process would be at least $1 million a year, which would increase in later years. Alvarado maintains that the added cost to the state should be minimal.

Jenkins, whose nephew, Wesley, died of a heroin overdose two years ago, said that this is the fourth year she has tried to pass this bill, with a lack of funding to pay for the program its main obstacle, "but with the passage of the ACA, it has opened up private insurers and Medicaid to pay."

Jenkins said if the House didn't concur with the changes made by the Senate, she hoped the Senate would withdraw its amendment.

Adams said if the House didn't concur, she would be "very receptive" to going into conference committee to resolve their differences because Rep. Jenkins "has got a very important bill that we need to pass."

Bill to give civil protection to victims of dating violence is poised to become law, addressing a serious health issue for women

By Melissa Patrick
Kentucky Health News

FRANKFORT, Ky. – Victims of violence between dating partners in Kentucky are about to get a law giving them civil court protection, after years of hitting roadblocks in the state Senate. Most of the argument has been among lawyers, about legal process, but domestic violence is also a major health issue.

"There is a strong association between the experience of victimization and physical and mental health problems," Carol Jordan, executive director of the Office for Policy Studies on Violence Against Women at the University of Kentucky, said in an interview.

Rep. John Tilley

House Bill 8, sponsored by Rep. John Tilley, D-Hopkinsville, would allow a civil protective order for victims of dating violence and stalking. Under current law, this immediate level of protection is only offered to people who are married, have a child in common or who have lived together. Kentucky is the only state that offers no such protections.

As of March 8, the bill was awaiting passage in the Senate after clearing the Judiciary Committee with a substitute version that addresses a key objection by creating a new chapter in the statutes for the bill, separate from the existing domestic-violence chapter.

Senate President Robert Stivers, R-Manchester, had opposed previous bills on grounds that criminal protections exist for victims of dating violence. At the committee hearing, he said the new bill offers a "different tier of protection" and is a "solution that individuals want."

But Stivers added, "I don't want there to be an unjustified belief that a piece of paper will keep someone away" if they are intent on doing harm.

And Sen. Robin Webb, D-Grayson, declined to vote on the bill, saying it would do nothing to stop the abuser. "That perpetrator is really the one that needs some help and really needs to stop the cycle," she said. "Because if he or she can't find another victim, they're going to go create one."

But Marion Brown, director of Sanctuary Inc., a shelter, counseling and court-advocate center for victims of domestic violence in Hopkinsville, told the committee that victims of dating violence have no immediate civil protections if they are not married, don't live with or don't have a child with their abuser. These unprotected victims "walk out of our doors not feeling safe" she said. "Help us help them."

Tilley shared some chilling statistics at the hearing: 638,000 Kentucky women will experience physical violence, rape or stalking by an intimate partner; 345,000 will experience a forcible rape; and 420,000 will be stalked, which, he said, is the highest percentage in the nation.

Also in Kentucky, one in three women will be the victim of domestic violence in her lifetime and the most vulnerable population for this type of violence is females between 16 and 19, according to the Louisville-based Center for Women and Families.

Domestic violence and health

The National Intimate Partner and Sexual Violence Survey by the federal Centers for Disease Control and Prevention has found that victims of domestic violence, both men and women, are "more likely to report frequent headaches, chronic pain, difficulty with sleeping, activity limitations, poor physical health and poor mental health that men and women who had not experienced these forms of violence." It also found that women who had experienced domestic violence were also "more likely to report asthma, irritable bowel syndrome, and diabetes than women who did not experience these forms of violence."

""It is a women's health issue because the way women treat their bodies (is often) dependent on the abuser," Brown said in an interview. "The abuser degrades them so much that they don't maintain their health. Their self-confidence goes down, their self-esteem goes down and as a result, all of their health issues fall to the wayside."

"Domestic violence is a public health crisis of a staggering multitude," Marcia Roth, executive director of The Mary Byron Project, a non-profit that advocates for domestic violence issues, said in a phone interview. "It leads to $4.1 billion for direct medical and mental health services per year."

Jordan, of UK,  said she has been part of research that shows an association between breast cancer and domestic violence – not higher cancer rates, but delayed diagnoses, which can be fatal. "For many battered women, their partners are so controlling they won't let them go to the doctor," she said.

Jordan said that while physical injuries are the most obvious health issue, "it goes well beyond that," to physical stress and mental-health issues.

"There is a lot of research that would suggest that other systems within the body are also very much harmed by the experience of living in that constant fear, constant stress, constant tension that so many battered women do," she said. "Depression begins to sink in" when women feel they have no way out, get repeated messages that they are not worthy, or are in constant fear of harm.

Jordan said the bill will provide another escape outlet for victims. When they show up for help and answer no to these three questions: "Are you married? Are you living together? or Do you have a child together?" and can't get an immediate protective order, she said, their sense of helplessness is confirmed.

As session nears end, bills on heroin, dating-violence orders, managed-care appeals and lawsuit review panels are hanging fire

By Melissa Patrick
Kentucky Health News

FRANKFORT, Ky. – The General Assembly has sent Gov. Steve Beshear four health-related bills, and several more could reach his desk in the legislative session that ends Wednesday. Legislators will return briefly after 10 days to reconsider any bills Beshear vetoes; they could also pass more bills, but would not be able to override any vetoes.

Here are some of the health-related bills that were pending on Monday; bills with two readings are ready for floor action.

Heroin: tougher penalties and needle exchanges?

Both the Senate and the House have heroin bills and both remain in committee in the other chamber, but hope remains high in both chambers that a compromise can be reached so that a heroin bill will pass this session. Senate Bill 5 is sponsored by Sen. Christian McDaniel, R-Latonia; House Bill 213 is sponsored by Rep. John Tilley. The main differences are how traffickers would be punished and whether to start needle-exchange programs for addicts. The Senate's penalties are tougher and it has opposed needle exchanges, which advocates say prevent disease and death from dirty needles and can lead addicts to treatment.

Now the Senate is moving toward accepting needle exchanges, James Pilcher reports for The Cincinnati Enquirer. Rep. Dennis Keene, D-Wilder, and Sen. Wil Schroder, R-Wilder, said exchanges "are much more likely to be included than when the session started," Pilcher writes. Schroeder told him, "I think there is a real possibility that we could include needle exchanges and then get our tougher penalties." Pilcher reports, "The possible legislative position shift comes as health officials throughout the Tristate have expressed deep concerns about the spread of diseases that can be contracted using dirty needles."

Protective orders for dating violence

House Bill 8, sponsored by Rep. John Tilley, D-Hopkinsville, has received its second reading and is awaiting passage in the Senate. This bill would allow dating partners to petition for interpersonal protective orders if they have been the victim of domestic violence, sexual abuse or stalking. Such orders are now available only to those who are married, live together or have lived together, or an unmarried couple with a child in common.

Kentucky is the only state that offers no protection for such victims. Legislation to do that has stalled in the Senate in earlier sessions, but a Senate committee substitute addresses a key objection, by creating a new chapter in the statutes for the bill, separate from the existing domestic-violence chapter.

Advocates say domestic violence is a health issue not just because of the physical injuries it causes. They say victims are more likely to be depressed, have unplanned and premature pregnancies, go to fewer prenatal visits, and to miss more well-child visits with their children.

Prescription synchronization, managed-care appeals

Senate Bill 44, sponsored by Sen. Julie Raque Adams, R-Louisville, has had its second reading in the House. This bill would allow patients with multiple prescriptions, in consultation with their health-care provider and their pharmacist, to synchronize prescriptions so that they may be picked up at the same time.

House Majority Caucus Chair Johnny Bell, D-Glasgow, has filed a floor amendment on an unrelated issue, to create a state appeals process for health-care providers to appeal decisions of Medicaid managed-care companies. It is the same as or similar to Senate Bill 120, sponsored by Sen. Ralph Alvarado, which has given it a first reading without assigning it to a committee. The Cabinet for Health and Family Services opposes a state appeals process, saying it would have a conflict of interest (successful appeals would cost the state money) and providers have the courts available to them to resolve contractual issues. UPDATE: Bell withdrew his floor amendment to Senate Bill 44 March 9. 

Review panels for suits against health-care providers: Senate Bill 6, filed by Alvarado, remains in the House Judiciary Committee, but a discharge petition was filed March 4 to bring it to the floor, bypassing leaders of the House's Democratic majority. This bill would establish panels of three medical experts, two chosen by each side and the third chosen by the other two, to review suits against health-care providers to determine if the case has merit before the lawsuit can proceed. Panel findings would be admissible in court, but not legally binding. Opponents say that Kentucky already has laws to punish attorneys for filing frivolous cases and that this just adds another barrier for patients seeking justice.

Newborn screenings for fatal disease: Senate Bill 75, sponsored by Sen. Alice Forgy Kerr, R-Lexington, has had two readings. It would require all newborns to be tested for Krabbe disease, a neurological disorder that destroys the protective coating of nerve and brain cells and is fatal once symptoms occur. Treatment with stem cells from an umbilical cord blood transplant is sometimes successful it the infant is treated early enough. The cabinet opposes the bill, saying the screening will cost half a million dollars a year at a time when local health departments are suffering budget cuts.

Spina bifida: Senate Bill 159, sponsored by Sen. Julie Raque Adams, R-Louisville, is in the House and the three-day posting rule has been waived. This bill would require medical providers to supply written, up to date, accurate information to parents when their unborn child is diagnosed with spina bifida so parents can make informed decisions on treatment

Physician assistants: House Bill 258, sponsored by Rep. Denver Butler, D-Louisville, is awaiting Senate passage. This bill allows a physician to supervise up to four physician assistants at the same time, rather than two.

In-home care: House Bill 144, sponsored by Rep. Tom Burch, D-Louisville, is awaiting Senate passage. It would establish a 60-day, hospital-to-home transition program through an approval waiver from the Department for Medicaid Services. The daily cost would have to be less than the average daily nursing home payment allowed by Medicaid. The bill would also provide non-medical support services to the applicant as needed.

BILLS SENT TO THE GOVERNOR

Colorectal cancer screening: Senate Bill 61, sponsored by Sen. Ralph Alvarado, R-Winchester, received final passage in the House March 4. This bill requires that a fecal test to screen for colon cancer, and any follow-up colonoscopy, be considered preventive measures that health insurance is required to cover without imposing additional deductible or co-insurance cost. The bill would apply to health plans issued or renewed on or after Jan. 1, 2016, if it becomes law. A similar measure, House Bill 69, sponsored by Rep. Tom Burch, D-Louisville, is awaiting passage in the Senate with a committee substitute by Sen. Julian Carroll, D-Frankfort, calling for a Medicaid savings study.

Medical order scope of  treatment (MOST) form: Senate Bill 77, sponsored by Sen. Tom Buford, R-Nicholasville, received final passage in the House March 3. This bill creates a medical order scope of treatment (MOST) form that specifically directs the type of treatment a patient would like to have, and how much intervention he or she would like to have, during end-of-life care. It is considered a physician's order, travels with the patient between health care facilities, and must be reviewed annually. The bill clearly defines the order of controlling documents for end-of-life care: the living will first, the MOST form second and the health-care surrogate, which is chosen by the patient and listed on the form, third. The MOST form is already used in 32 states.

Emergency care for strokes: Senate Bill 10, sponsored by Sens. Stan Humphries, R-Cadiz, and David Givens, R-Greensburg, received final passage in the House March 4. The bill requires that a list of all acute stroke-ready hospitals, comprehensive stroke centers and primary stroke centers in Kentucky be posted to the cabinet's website and be made available to all emergency medical services providers, who are required to set their own internal protocols toward assessment, treatment and transport of stroke patients.

Funding for UK cancer research center: House Bill 298, sponsored by Rep. Rick Rand, D-Bedford, received final passage in the Senate March 4. This bill authorizes the state to appropriate $132.5 million, half of the cost, for construction of a new medical research center at the University of Kentucky. The university will raise money to cover the other half. The facility will target prevalent diseases in Kentucky, including cancer, diabetes and cardiovascular disease. The bill required a 60 percent vote in each chamber because it affects the state budget and the legislature is in a non-budget session; it passed the House 83-9 and the Senate 36-1 (Sen. John Schickel, R-Union).

State Senate passes bill for independent appeals process for managed-care claims; hearing gets into details of the problem

By Melissa Patrick
Kentucky Health News

Managed-care organizations' contracts allow them to deny Medicaid claims and not reimburse for services if they deem them not medically necessary. That means health-care providers often don't get paid for providing care, and their only recourse is an internal review by the MCO.

Sen. Ralph Alvarado

"It appears some of our MCOs are using this denial method in order to, as they term it, 'manage care'," Republican Sen. Ralph Alvarado said at a Senate Health and Welfare Committee hearing on his Senate Bill 120, which would set up an independent appeals process for providers, much like those in Georgia and Virginia.

The  bill, which had been in the works for several years, passed the Senate March 2 and was received in the House March 3. Its prospects in the House appear poor because it is opposed by the Cabinet for Health and Family Services, which oversees Medicaid. Its main targets are MCOs WellCare of Kentucky and Coventry Cares of Kentucky.

Alvarado, a Winchester physician, said in an interview that he pointed out these companies because they have the highest denial rates. While other companies also have complaints, "They are very small and minor, what you would expect in the normal course of business," he said. "It is WellCare and Coventry; these two are the names that keep coming up over and over again."

Asked for comment, Coventry said in an e-mail, "Coventry continues to monitor the legislation as it moves through the process. We are working with lawmakers to protect the integrity of the managed Medicaid program and be responsible with taxpayer dollars."

WellCare said in an e-mail that its appeals process is adequate, offering two additional remediation alternatives, negotiation and arbitration. The company said MCOs are "continuously subjected to rigorous oversight by state, federal and national accreditation entities," which ensure that they "adhere to strict standards and evidence-based guidelines in determining medical necessity."

Nina Eisner, board member of the Kentucky Hospital Association and chair of its Chemical Dependency Treatment Program, told the committee that providers deserve the same sort of state appeals process that patients have for denial of service.

"Kentucky's providers are under tremendous pressure from payment cuts from Medicare and slowed and denied payments by MCOs," Eisner said. "It is untenable and unreasonable to expect that Kentucky providers can provide health care services for free."

She said that many of the disputes stem from MCO reviews using out-of-state physicians who "don't always understand the rural nature of our state and the lack of resources." She said one example is discharging rural patients from inpatient to outpatient behavioral-health or substance-abuse treatment where no outpatient services are easily acessible.

"The MCOs in Kentucky are quite profitable," Eisner said, citing a November analysis by Citi Research that found Kentucky's MCO plans generated over $450 million in earnings before interest, taxes and depreciation from the state Medicaid program. "This is a margin of 10.6 percent, which is more than two times the 3 to 5 percent margin most Medicaid plans target."

Sen. David Givens, R-Greensburg, said he was compelled to remind those at the hearing that private companies need to be profitable to keep the system working. Later, Sen. Danny Carroll, R-Paducah, disagreed, saying MCOs' profits need to be more balanced.

Medicaid Commissioner Lisa Lee said that it is balanced, because MCOs were required to spend 87 percent of their payments on the population newly eligible for Medicaid or give it back to the federal government, and that rates going forward depend on what they spend today.

KHA's Nancy Galvagni said another reason for a state appeals process is the variation between plans' denial rates, ranging from a low of 7 percent to a high of 18 percent. She said that providers have gone to state hearings on behalf of their patients and had favorable opinions, only to have them overturned by the Cabinet.

Tina Heavrin, general counsel for the cabinet, said that occurs because the cabinet only has authority to decide whether patients received services, and if they did, there is no claim and any dispute regarding payment is between the MCO and the health-care provider.

Sen. Julie Raque Adams, the committee chair, replied, "I think that is the impetus behind this bill, that once the patient receives their service, they are done, but the provider is not. ... I don't want to go to work and not be paid for it. And I don't think that is an unreasonable thing to request or require and I think that is all that this bill does."

Heavrin said that providers do have a process to resolve these issues, "It is called the judiciary." She said the cabinet can't run an appeals process for MCOs because it "as part of the executive branch, doesn't have jurisdiction or legal authority over an adjudication of private contract rights." She added, "The MCOs are our contractors and it would be difficult to not have a financial interest in the outcomes of those appeals," meaning that upholding an appeal would cost the state money.

Lee said the cabinet acknowledges issues with MCOs. She said that while state officials should not get in the middle of contract disputes, "We do listen to our providers" and "want to hold our MCOs accountable," noting that they had "made some significant progress with managed care" since its inception in 2011.

Carroll, who deals daily with MCOs through his non-profit agency that provides therapy services and medical-based child care, said, "It is an absolute nightmare dealing with MCOs," because of all the "hoops to jump through in order to get reimbursement."

He asked if there was any way for the cabinet to work these issues out in its new contracts and said it felt like the state had "brought in these MCOs and basically washed their hands of all the issues associated with it."

Heavrin said it would not be possible to include a state appeals process in the contracts because "We can't be a judiciary."

Lee told Carroll that state officials had not "washed their hands" of the MCOs and closely monitor their activities. "We also have an obligation to the Center for Medicare and Medicaid Services to make sure that every single thing that we pay for does meet medical necessity," she said. CMS is the federal agency that oversees those programs.

Bill to cap co-payments for drugs is backed by emotional testimony, but opposed by health insurers and employer groups

By Melissa Patrick
Kentucky Health News

FRANKFORT, Ky. -- People with chronic conditions are often denied the best medication for their condition because it is not on their insurance plan's preferred formulary, which makes the co-payment more for that medication than they can afford.

Sen. Tom Buford

Senate Bill 31, sponsored by Tom Buford, R-Nicholasville, would put a $100-per-month cap on co-payments for a 30-day supply of a medication for drugs subject to a tiered formulary, and not to exceed $200 per month total for all medications. House Bill 146, sponsored by Rep. James Kay, D-Versailles, has a similar bill that is currently in the House Banking and Insurance committee.

The Senate Health and Welfare Committee heard discussion on this bill Feb. 25, which opened with an impassioned plea from Buford to pass it. He said 18 states have passed or are in the process of passing similar bills. But they face strong opposition from the insurance industry and employers, and the bill has been on the committee agenda "for discussion only."

Buford said insurance companies have avoided big increases in premiums by raising co-payments, "which have gone over 54 percent and some 80 percent." Saying the average salary of Kentuckians is $23,700, he said many have to chose between living expenses and paying for medicine. "You may have insurance, but you may not have health care," he said.

The state Department of Insurance estimates that the bill would increase premiums by $3.20 to $4 per month and, because of greater utilization of services, raise the ultimate health-care costs of all insured Kentuckians (except those on state plans) by $2.58 to 3.23 per month.

Buford disputed the estimate, saying it essentially comes from the insurance industry. He acknowledged that capping co-pays would raise costs, but said the increase could be modest. He said that after Vermont passed a cap, the cost averaged only 32 cents per month per member for large-group plans and 74 cents per month for small-group plans.

Tom Underwood, state director of the National Federation of Independent Business, said the bill would primarily affect small-group employers, partly because small businesses have no power to negotiate with insurance companies.

Julie Davis of Glasgow, who has epilepsy, told the committee that she was forced to switch insurance this year, and a $60-per-month medication that she had been taking for seizures now cost $1,200 per month. She said they made her switched to a generic medicine, against the advice of her neurologist, and since has had her first breakthrough seizure in two and one-half years.

Getting emotional, Davis said that when she has such seizures, "I am out of commission for almost a month" and this has forced her to give up a job that she loved, move in order to be closer to a support group, and only allows her to work from home. She also said that at times she "fears for her life," and her insurance company has denied her appeals.

Deb McGrath of the Epilepsy Foundation said it had found that the most commonly prescribed and effective epilepsy drugs are on the non-preferred list of the "silver" plans on the state health-insurance exchange, the most common type of plan. A patient must pay a 40 percent co-insurance or a high deductible plus a co-pay to get a preferred drug on these plans.

She said the U.S. Department of Health and Human Services has called the practice of limiting coverage and imposing high cost-sharing for drugs that treat certain conditions "discriminatory."

McGrath said, "These barriers make it impossible, near impossible, for individuals, for those living with chronic health conditions like epilepsy, like arthritis, Alzheimers, crones disease, diabetes, and AIDS access to care that they desperately need."

Carl Breeding, a lobbyist for American Health Insurance Plans, gave the committee a letter from the Insurance Commissioner Sharon Clark, which he summarized as saying this bill would "prevent the state from being able to work" under federal health reform because of the way deductibles work and would "eliminate the bronze plan," the lowest-cost plan.

But Mark Guimond, a lobbyist for the Arthritis Foundation, said the lack of co-pay caps can increase costs because the resulting lack of medication can lead to hospitalizations, surgeries and time off work. "These are extremely expensive medications: $1000, $2000, $3000 a month," Guimond said, and patients "are being stuck with co-pays or co-insurance that may be 30-40-50 percent of these amounts."

The Kentucky Association of Manufacturers, which opposes the bill, wrote in the Lexington Herald-Leader that "These increased costs take away capital that state manufacturers could otherwise deploy to reinvest in their plants and more importantly remain competitive globally, so that we can continue to employ hard-working Kentuckians."

In animated remarks to the committee, Buford replied, "I hate to say this, but I could care less if we beat Japan in making toys if it depends on someone's life and health and the ability for them to live. It's more important apparently for some to deny the insurance than it is to make that profit on the bottom line of their company."

Bill would require Medicaid managed-care firms to pay contracted fees for ER visits; Senate hearing targets two companies

This story has been updated with comments from Wellcare of Kentucky.

By Melissa Patrick
Kentucky Health News

FRANKFORT, Ky. -- Managed care is touted as a way to achieve value-based care in the Medicaid program, but hospital emergency rooms in Kentucky aren't finding much value in not being paid the contracted price for their services by two of the managed care organizations.

Officials of two Kentucky hospitals told the Senate Health and Welfare Committee Feb. 25 that Wellcare of Kentucky and CoventryCares of Kentucky are denying payment for as many as half of their emergency-room patients who seek care in their facilities, reimbursing the hospital a flat $50 "triage fee," less the patient's $8 co-payment, regardless of diagnostic tests performed in the ER.

Cheri Sibley, CEO of Clark Regional Medical Center in Winchester, noted that emergency rooms are required by law to screen patients with appropriate diagnostic tests to rule out an emergency condition if they come to the emergency room and ask for care.

Wellcare and Coventry are two of the five Medicaid managed-care organizations that oversee care for the state.

Wellcare said in an e-mail that it is required by the Department of Medicaid Services to "have an affirmative program to address the high cost of emergency room treatment for conditions that do not require this level of care." The company said the triage fee is just one measure it has taken; it said an "emergency room prudent layperson program" has helped "identify and sometimes prevent payments as much as 500 percent to 1,300 percent more in an emergency room as compared to a physicians office for common ailments such as ear aches and sore throats."

Sen. Ralph Alvarado, a physician from Winchester, has sponsored a bill that would require MCOs to pay the previously negotiated rate for emergency-room examinations and allow the ER doctor to determine whether a patient's condition is an emergency or not,.

"This bill is an attempt to keep our Medicaid managed-care organizations accountable," Alvarado said at the meeting. "MCOs have been shortchanging our providers and our hospitals -- and, I would argue, purposefully -- for the past three years. . . . MCOs are basically managing health-care cost by non-payments to providers."

Since the advent of managed care in 2011, hospitals have complained about late and denied payments and difficulty dealing with MCOs. "The problem has reached critical mass, threatening the survival and financial viability of our hospitals, and almost every legislature has been contacted by their local hospital provider regarding these (issues)," Alvarado said.

Kentucky implemented managed care as a way to save money. Basically, insurance company subsidiaries get a certain sum per patient and increase their profits by controlling costs. The Cabinet for Health and Family Services maintains that managed care focuses on quality and provides better accountability for care as opposed to the traditional fee-for-service model, but provider complaints about slow payments and rejections of claims have persisted since its inception.

Hospitals bill insurance and Medicaid based on the level of complexity of emergency-room care provided based on the symptoms the patient presents, regardless of the final diagnosis. Payment has typically been based on a fee that was pre-negotiated between the hospital and the MCO.

Wellcare and Coventry have since implemented a non-negotiated "triage policy," which allows these organizations to determine, after the fact, whether a patient had an emergency. If they determine that a patient was a non-emergency, regardless of presenting symptoms and cost of diagnostic procedures (X-rays, CT scans, lab tests, and so on), they only pay $50 minus the $8 co-payment, or $42. Wellcare implemented this policy in September 2012 and Coventry in April 2013.

The legislaure's Administrative Regulation Review Subcommittee found last May that the triage policies did not follow federal standards, according to Sibley and Alvarado.

"One side seems to be meeting their contractual obligation, while the other side seems to be deficient in meeting their contractual obligations," said Sen. Julie Raque Adams, R-Louisville, chair of the committee.

Hospitals can appeal MCOs' decisions, but "hospitals report that only a small number of these are overturned with no explanation of decision given," Sibley said.

Sibley gave an example of a claim that had been determined a non-emergency by one of these companies at her hospital: An 18-month-old girl was brought to the ER because she was blue in color, wheezing and short of breath. She had an X-ray, other diagnostic tests and a breathing treatment, but the hospital was paid $42 by the MCO plus the $8 co-payment, if the patient paid it.

"The two MCOs in question should not be deciding which patients are non-emergencies," Sibley said. "They should be abiding by their negotiated contract and paying the contract rate," 95 percent of allowed cost.

Sibley presented Kentucky Hospital Association data from 64 hospitals affected by these triage policies. The report found that during calendar year 2014, the hospitals reported submitting nearly 380,000 emergency room claims to Wellcare and Coventry, of which 140,000 were denied except for the $50 fee. The overall denial rate was about 37 percent; Wellcare's was 48 percent.

The KHA report said the difference in the flat fee and the contracted rate totaled $37.4 million, and that the more complex visits (and this likely the more expensive) were the ones most often denied payment.

"With one in four Kentuckians now on Medicaid, this problem is only going to get worse, if this is not corrected by this Senate Bill 88," Alvarado's legislation, Sibley said.

Georgetown Community Hospital CEO William Haugh said almost 30 percent of its ER visits in 2014 were Coventry or Wellcare clients. Wellcare classified almost 60 percent as triage cases and paid only $50 each. The hospital appealed 92 percent of those cases, with a success rate of 16 percent, or 285 patient encounters. Haugh said that amounted to a $334,258 underpayment, plus an estimated $40,000 cost for preparing and prosecuting the appeals.

Haugh said Coventry classified 26.4 percent of its clients' Georgetown ER visits as triage and paid only $50 each. The hospital appealed 94 percent of those and had a success rate of 36 percent, or 366 patient encounters. He estimated an underpayment of $148,000 plus $22,000 in labor for appeals, and said the overall financial impact to the hospital was $543,894.

Wellcare said its appeals process allows three opportunities for review, with at least two independent medical directors.

The state Medicaid program's chief medical officer, Dr. John Langefeld, said the emergency-room problems are not a "straightforward, easy issue," He said many patients go to ERs for reasons beyond medical care. The cabinet has said that some hospitals have relied too much on ER revenues.

Sen. Reginald Thomas, D-Lexington, said rural hospitals need to change their business models and wondered if the bill was an attempt to mask that problem. Meanwhile, he added later, there is "documentation that hospitals have benefited from Medicaid expansion" under the federal Patient Protection and Affordable Care Act, in a recent report from Gov. Steve Beshear.

Adams replied that Beshear says, ""It is great, and it's putting all this money back in the system," but in fact we are not seeing it on the provider level."

Alvarado said, "There is a difference between what actually happens and what the governor's office wants to show you. So when you have KentuckyOne [Health] coming out publicly declaring a $218 million dollar loss in one year, that is hardly a profitability for them based on the ACA."

Alvarado said Citibank reported the companies have made $155 million in profits off of Kentucky Medicaid. "I'd get rich, too, if I didn't pay my bills," Alvarado said. "It is an outrage."

Smoking-ban bills get unfavorable committee assignment in state Senate, but supporters say they'll keep trying to get votes

By Melissa Patrick
Kentucky Health News

FRANKFORT, Ky. – The state Senate's Republican leaders have assigned both the Republican and Democratic smoking-ban bills to a committee that appears unlikely to send them to the full Senate.

The Veterans, Military Affairs and Public Protection Committee got House Bill 145, which the House had passed 51-46, and Senate Bill 189, filed by Sen. Julie Raque Adams, R-Louisville.

Adams is chair of the Health and Welfare Committee, and smoke-free advocates had hoped the bills would go there, improving its chances in a Senate that doesn't appear disposed to pass it.

Senate President Robert Stivers defended the assignment, saying the bills relate to public protection. Last year, a smoking-ban bill sponsored by the previous Health and Welfare chair, Republican Julie Denton of Louisville, was sent to the Judiciary Committee and never heard.

Stivers was asked if Adams' bill was sent elsewhere because of her support for it. He acknowledged that it could have been considered a health issue, and "It was a choice." Pushed to answer, he said, "I don't recall anything being made, because we put a lot of bills in chairman's committees that they support whether leadership supports it or not."

Adams did not respond to requests for comment, but Amy Barkley, chair of the Smoke-free Kentucky Coalition, said she had hoped the bill would go to Health and Welfare because it addresses a health issue.

"We hope it gets a hearing in the Senate," Barkley said. "We are hoping that even if those individuals in leadership are not supportive, that they will at least let the bill have a fair hearing and hopefully a vote – and they can vote no if they are not supportive, but we think it deserves to have a vote so we know where people stand."

Sen. Morgan McGarvey, of Louisville, a Democratic co-sponsor of the Senate bill, said he understood how a smoking ban could be perceived as a public-protection matter, but used the assignment as an argument for the legislation.

"There is no bill we can pass this session that would save the state more money than a comprehensive statewide smoking ban," he said. "It will make Kentuckians healthier; it will save the state money."

Advocates' job will be to persuade Republicans, whose policy is not to allow bills to reach the full Senate unless they are favored by a majority of the 26 Republican senators.

The chairman of the Public Protection Committee, Sen. Albert Robinson, R-London, said through his assistant that he wasn't ready to talk about the bills because they had just been assigned to his committee. He told the Lexington Herald-Leader, "I don't know if there is support for it in my committee." He told The Courier-Journal that he opposes the bill.

The legislation has been debated in the legislature for five years. Senate Bill 189 is identical to the original House bill, which was amended. Both bills would prohibit smoking in workplaces and indoor places, and within 15 feet of their entrances, to protect others from secondhand smoke, which is estimated to kill 950 Kentuckians annually.

House Bill 145 passed with three changes: an exemption for cigar bars, cigar clubs, tobacco stores, private clubs and market-research facilities; significantly lower fines for violation; and preservation of any weaker or stronger local bans in effect when the bill would become law, in late June.

The fundamental conflict about the bill, largely along party lines, is whether individual liberties or public health take priority.

Stivers reiterated his stance, siding with those who support individual liberties.

"I do not like smoking. I don't patronize places that smoke. I have allergies," he said. "It costs you money to take your suits to the cleaners and things of that nature, but I just don't think it is the role of government to start telling private businesses what they can and can't do from that perspective."

He suggested that his opposition wasn't decisive. "I am one of 38 [senators] and if you go back and look at respective bills, there have been bills that I haven't voted on that have made it to the floor because they have the support of the body. Actually, I think we voted on one this week or maybe late last week that I did not vote for, but there was support in this chamber for that issue."

Stivers noted that more Republican senators support the ban than last session, mentioning Adams and Sen. Ralph Alvarado, a Winchester physician. Both were elected to the Senate last fall.

Alvarado explained why he values health over liberty on this issue. He said we all have the right to swing punches at another person, but at the point of contact, that person's rights have been violated. "My individual rights to do something ends when it affects the rights of another individual is my perspective, and secondhand smoke is just that," he said.

Alvarado said he continues to talk to senators about why they should support a statewide smoking ban, saying," It would cost nothing to implement and the benefit from a fiscal perspective and lives saved . . . would be tremendous."

As a rookie public official, Alvarado said he still has a "romantic idea" that it is possible to persuade senators to change their positions and "find at least some type of compromise to get more people covered and to reduce (secondhand smoke) exposure."

Sen. Perry Clark of Louisville, a libertarian-oriented Democrat on the Public Protection Committee, said it was too early to say how he might vote on the issue because the bill might be amended. It has been suggested that the bill could pass if local governments could opt out of the ban, but Barkley told The Courier-Journal that would fatally weaken it.

Besides Clark and Robinson, other members of the committee are Republicans C.B. Embry of Beaver Dam, Carroll Gibson of Leitchfield, Ernie Harris of Prospect, Stan Humphries of Cadiz, Chris McDaniel of Taylor Mill, Dan Seum of Louisville, Whitney Westerfield of Hopkinsville, Mike Wilson of Bowling Green and Max Wise of Campbellsville; and Democrats Julian Carroll of Frankfort and Dennis Parrett of Vine Grove.

Opinion: Toward a healthier Kentucky, with a smoke-free law

By the Friedell Committee for Health System Transformation 

It is no secret that Kentucky is among the unhealthiest states in our country. 

Kentucky is No. 7 in cardiovascular deaths, No. 1 in cancer deaths, No. 1 in lung cancer, and No. 13 in asthma prevalence. And Kentucky leads the nation in smoking with 26.5 percent of its adult population.

Even non-smokers are at risk of diseases caused by tobacco. Exposure to secondhand smoke increases the risk of coronary heart disease by 25 to 30 percent among nonsmokers.  It increases the risk of lung cancer in nonsmokers by 20 to 30 percent. 

This means that waitresses and bartenders (most of whom do not smoke) in workplaces that allow smoking risk their lives just to earn a paycheck.  Sadly, 68 percent of Kentuckians are currently exposed to secondhand smoke in public places.  At this rate it is no wonder that Kentuckians suffer serious and deadly consequences.

Fortunately, we have scientific evidence that a smoke-free law will reduce disease rates in areas where such a law is in effect. Communities that pass comprehensive smoke-free workplace laws have experienced a 15 percent drop in emergency-room visits for heart attacks.  ER visits for asthma dropped by 22 percent in Lexington after the smoke-free law was enacted. 

Also, adult smoking rates declined by 32 percent in Lexington, saving $21 million per year in health care costs! While a decrease in smoking rates is not the primary reason for secondhand smoke-free laws, many people express an interest in stopping, and the laws make quitting easier.

Our poor health is a problem that affects us all.  It affects our health-care costs, our community health, and a national perception of us as being an unhealthy place to invest in and live.  That problem can be addressed by smoke-free local ordinances, a state law, and/or local boards of health regulations. 

The Affordable Care Act presents a unique opportunity to look at health differently.  We need to start emphasizing prevention of diseases rather than relying only on treatment.  Smoke-free policy is one effective type of prevention. We know that prevention will save lives and reduce health care costs borne by individuals, private business and the government. 

The Saving Our Appalachian Region effort in Eastern Kentucky reminds us that Kentucky can do better.  Going smoke-free is one way. Imagine a Kentucky where no one is exposed to smoke in the workplace and where fewer people actually smoke.  Lives would be saved, diseases would be prevented, and health care costs would decrease.

Thankfully, most Kentuckians agree. Statewide polls show that 66 percent of likely voters are in favor of a smoke-free law.  This makes sense since most Kentuckians do not smoke.  It is time for the state legislature to implement a policy that will improve our health, save lives and reduce health costs.

The Friedell Committee for Health SystemTransformation is an organization of community leaders across the state that knows that Kentucky is not a healthy state but that working together we can do something about it.

Statewide smoking ban passes Kentucky's Democratic House, but its chances don't look good in the Republican Senate

By Melissa Patrick
Kentucky Health News

FRANKFORT, Ky. – A statewide smoking ban passed the Democrat-controlled state House Friday for the first time, but its chances appear grim in the Republican-controlled Senate though a clear majority of Kentuckians support the bill.

House Bill 145, which would prohibit smoking in workplaces and indoor places, passed 51-46 after the narrow defeat of two amendments opposed by its advocates and three changes that may have put it over the top. Nine of the 44 Republicans joined 42 of the 56 Democrats to pass it.

Amendments to the bill added exemptions for cigar bars, cigar clubs, tobacco stores, private clubs and market-research facilities; significantly reduced the fine for violation, to $25 for individuals and $50 for businesses; and would preserve any weaker or stronger local bans that are in effect when the bill would become law, in late June.

House Speaker Greg Stumbo told Tom Loftus of The Courier-Journal that the latter amendment was key to the bill's passage. Rep. Tanya Pullin, D-Greenup, told the House that it won her vote because it creates a "window of opportunity" for localities to enact their own bans. It was proposed by Democratic Caucus Chair Johnny Bell of Glasgow.

The defeated amendments would have exempted electronic cigarettes and well-ventilated adult establishments prominently displaying a "Smoking Establishment" sign. The e-cig amendment, proposed by Republican Caucus Chair Stan Lee, lost 46-49; the other one, offered by freshman Rep. Jim DuPlessis, R-Elizabethtown, lost 44-45. For the roll calls, click here.

"A couple of the amendments are problematic," Amy Barkley, chair of the Smoke-free Kentucky Coalition, said in a phone interview. "The existing laws in these communities may not protect all workers," she said. "And localities can pass weak laws (before this bill becomes law) and have that forever."

Nevertheless, Barkley said, "This is really a historic moment."

More compromise may be necessary to get the bill through the Senate, where Republican Sen. Julie Raque Adams of Louisville filed a similar bill as the House measure was coming up for a vote.

Senate President Robert Stivers told Bruce Schreiner of The Associated Press, "I am personally not a fan of smoking, but I just don't believe it is the government's role to tell [a business] that you cannot have a facility that smoking takes place in — be it a pool hall a bar or restaurant." He added, "I don't see there being that type of support in the Senate to pass a bill like that."

Barkley disagrees. "There is a lot of support in the Senate," she said.

The sponsor of HB 145, Rep. Susan Westrom, D-Lexington, said "I cannot predict what will happen in the Senate. Stivers has said from the beginning that he wouldn't let it have a hearing."

Barkley said advocates are asking Senate leaders to "let your members have the vote and go on record with their position." The next clue to the leaders' attitude will be where they send the bill. If it doesn't go to the Health and Welfare Committee, which Adams chairs, that would be a bad sign for it.

Westrom repeately said that the bill does not ban smoking. "This bill just requests that a smoker step outside 15 feet," she said. "Fifteen feet is not too far to walk to know that 950 people in this state won't die from secondhand smoke related illness." That is the estimated number of deaths each year in Kentucky from secondhand smoke.

Westrom said afterward that she had hoped for a larger margin than five votes, but "I couldn't be happier. This is a historic moment and there is lots to be proud of," referring to the many people and organizations that committed themselves to the cause.

The Kentucky Health Issues Poll last fall found that 66 percent of Kentucky adults favored the ban. It won 57 percent support in last year's Bluegrass Poll for news organizations.

During the House debate, opponents of the bill spoke mainly of private-property rights and individual liberty.

I deplore smoking," said Rep. Brian Linder, R-Dry Ridge, "but my love for liberty is greater than my hate, therefore I vote no."

Earlier, Westrom said, "Our freedoms only extend until they begin to affect others."

Democratic Gov. Steve Beshear hailed the House vote as "an extremely important and significant event," adding, "It sends a very strong statement ... that it is time to move in this direction. It is just such a health problem and health issue in the commonwealth; so many of our chronic conditions relate directly back to smoking."

Advocates of smoking ban, including victims of secondhand smoke, rally at Capitol

By Melissa Patrick
Kentucky Health News

FRANKFORT, Ky. – Over 500 Smoke-Free Kentucky advocates spent Wednesday, Feb. 11, asking their lawmakers to pass a statewide smoking ban, wrapping up their day with a rally and news conference in the Capitol rotunda, featuring leaders of the effort and people who said they were victims of secondhand smoke.

"Our efforts are paying off; there is going to be a vote very soon," James Sharp of the American Cancer Society's Cancer Action Network said to a cheering crowd. "Keep up the good work, keep up the pressure, keep sharing those personal stories. We will get a smoke-free Kentucky because everyone deserves the right to breathe clean, smoke-free air in this state."

Lt. Gov. Crit Luallen, a colon-cancer survivor, said Kentucky "has some of the worst health statistics in the nation" and conditions like heart disease, lung disease and cancer are all linked to smoking. "If we truly care about our children, and our families and the future health of the commonwealth, it is time to pass House Bill 145 and create a statewide smoke-free law," she said.

"I don't know how any public leader today can sleep at night if they are not committed to help reforms like a statewide smoke-free law," Luallen said to a cheering room. "I don't know how they sleep at night knowing we have more Kentuckians dying of cancer than any other state in America."

"This should not be politically risky," Luallen said after the rally. Saying that many rural towns or businesses will not do this voluntarily and statistics support the correctness of this decision, so "Those legislators who are facing a difficult vote have to look at what is the right thing to do."

Health Commissioner Stephanie Mayfield, who has taken a strong stance against smoking and tobacco since she took office, said the law would be a strong, quick advancement toward better health. "Secondhand smoke can kill you,": she said. "The science is clear, The debate is over."

Joe Geraci, a volunteer for the cancer society and a lung cancer survivor, said he was there to represent those with cancer "who did not make it." He said that he attributed his lung cancer to the smoke-filled capitol building that he worked in as a lobbyist for 10 years.

Geraci said many of the legislators told him that they were getting more calls from people to vote against the bill than to vote for it, so he encouraged calls to the legislature's message line, 800-372-7181.

Denny Nafus of Northern Kentucky said his nonsmoking parents, who volunteered at church bingo for decades, died of lung disease, and Kentucky spends $1.92 billion a year on health care and loses $2.3 billion worth of production because of smoking and secondhand smoke.

Roger Cline of Olive Hill said he was there as a "secondhand smoke victim" because he lost his nonsmoking wife to lung cancer from exposure to smoke at her workplace.

Dr. Erin Frazier of Louisville, a breast-cancer survivor, said that she had no other contributing factors for the cancer other than waiting on tables in smoky bars and restaurants between the ages of 16 and 22. She said wait staff have the highest prevalence of exposure to secondhand smoke of any occupation.

"Young, pre-menopausal women who are exposed to secondhand smoke have a 70 percent greater risk of getting breast cancer than those exposed later in life," she said. "and regardless of the age, women who are exposed to secondhand smoke have a 25 percent increased risk of getting breast cancer."

Sandra Castle described herself as a nurse who loved to sing to her patients. She said she worked for 18 years around secondhand smoke, and blamed it for two different cancers, which caused her to lose a vocal cord and undergo spinal surgery. She said she had lost two of the greatest joys of her life, singing and the ability to lift her grandchildren.

Laura Tarakam said secondhand smoke is a trigger for asthma attacks, and a son died from an attack caused by an unknown trigger. Secondhand smoke is a known trigger for asthma attacks, so this puts her living son, an asthmatic, and others with this condition constantly at risk.

Rep. Susan Westrom, five-year sponsor of the bill, thanked the smoke-free advocates for the work they do and encouraged them to be persistent" saying that as lawmakers became more educated, they better realize their responsibility for improving the health of all Kentuckians, not just in the workplace.

Westrom, D-Lexington, also thanked Dave Adkisson, president and CEO of the Kentucky Chamber of Commerce, for its support of the bill. Adkisson said "92 percent of business leaders support this legislation" not only because "smoking is killing us as a health matter, but it is bankrupting us as a financial one."

Asked after the rally about the bill's chances in the Senate, Westrom said "our numbers are so positive" in the Republican-controlled chamber, and better than they have ever been. She said there aren't enough votes yet to get the bill to the floor, but it was "very, very close." Senate President Robert Stivers has said he plans to follow his policy of not allowing bills to the floor unless they are supported by a majority of the Republican caucus, which has 26 members of the 38-member Senate.

With 55 votes needed instead of the usual 51, it just got harder to pass a smoke-free workplace law in the House

By Melissa Patrick
Kentucky Health News

FRANKFORT, Ky. – A bill to ban smoking in public places and places of employment will require the commitment of a supermajority to get a vote on the House floor, making it more difficult to pass.

Rep. Susan Westrom, D-Lexington, said in a telephone interview that when she told leaders of the House's Democratic majority yesterday that her bill had 49 votes, two short of a majority, Democratic Floor Leader Rocky Adkins of Sandy Hook told her she would need 55 votes for him to bring the bill before the House.

Asked why she thought there had been a change from the usual 51 votes needed for a floor vote, Westrom said the only reason she could imagine was "There are some members of leadership that don't want to make anyone uncomfortable . . . don't want to ask them to take a vote."

Last year, House leaders declined to bring the legislation to a vote, and Speaker Greg Stumbo of Prestonsburg said many members didn't want to vote on it during an election year.

Adkins said yesterday that a supermajority requirement is not unusual for any bill that is a "high priority" or "one that has been discussed a lot." He said the rule applied to Stumbo's House Bill 2, to raise the state minimum wage. It passed in the House Tuesday, 56-43.

Democratic Rep. Tom Burch of Louisville, the longest-serving member of the legislature and chairman of the committee that approved the bill, said requiring 55 votes to get a floor vote happens from time to time. He said this will "provide a cushion" because "some of these guys will crawfish," or will back off when they see there are 51 votes.

Offering an example of why it it is best to go into a vote with a cushion, Burch recalled 1980, when new Gov. John Y. Brown Jr. took his gas-tax bill to a vote, thinking he had 51. But someone who had committed to vote for it reneged during the vote, leaving Brown one vote short. Burch said he cast the 51st vote at the request of House leaders, who had told him that his vote wouldnt be needed.

"We need a cushion," Burch said.

Westrom said the request from Adkins for 55 votes "comes as no surprise to me."

"We must roll with the punches and keep moving forward," she said. "I am making connections with those in the middle, providing them with information to help them with their comfort zone."

She said that she and other advocates had been educating her colleagues for five years about the importance and need for a smoking ban, but some were just not receptive.

"There are some freshman legislators from rural areas who get it, and seasoned legislators that still don't," she said.

When House Bill 145 passed the Health and Welfare Committee 11-4 last week, Westrom said, "I feel very confident we will get a floor vote." But at that time, she was aiming for 51.

The bill has never gotten out of committee in the Senate and chances in the Senate this year continues to remain doubtful.

James Sharp, lobbyist for the American Cancer Society's Cancer Action Network, said that with 66 percent of Kentuckians statewide supporting the bill, it is time for state leaders to make "the health and economic viability of our commonwealth" a priority by passing this bill.

"We need our leaders in either chamber, in either party, to step up and lead on this issue," Sharp said. "Bring this bill for a vote. Get it passed for the health of all Kentuckians, sooner than later."

Adkins, asked if leaders are doing enough, said they were listening to and working with their caucuses. "So, I think we are working our way through the process," he said. He commended Westrom and advocacy groups for "an outstanding job of really educating people on this piece of legislation, educating Kentuckians."

Burch said, "I am voting for this bill because it is the right thing to do" and encouraged lawmakers to listen to their constituents.

"If these people would listen to what their districts thought, they would be for this bill 100 percent," he said. "Because 75 percent of Kentuckians don't smoke and don't want somebody blowing smoke in their face and they don't want the results of second-hand smoke."

Kentucky Health News is an independent news service of the Institute for Rural Journalism and Community Issues, based in the School of Journalism and Telecommunications at the University of Kentucky, with support from the Foundation for a Healthy Kentucky.

Panel OKs new medical-order form that would clearly define a person's end-of-life wishes on nutrition, hydration, medication

A bill to create a medical order form that details a person's wishes for end-of-life care passed the Senate Health and Welfare Committee Feb. 4 and seems headed for passage in the full Senate.

Advocates say that while many physicians discuss end-of-life care with their patients and families and document it, this information is often buried deep in the chart and is not easily accessible in an emergency situation.

"This issue comes to play on a daily basis," Christian Furman, vice-chair of geriatric medicine at the University of Louisville and medical director of two nursing homes in Louisville, told the committee.

Sen. Tom Buford

Senate Bill 77, sponsored by Sen. Tom Buford, R-Nicholasville, would creates a new Medical Order for Scope of Treatment form to specifically direct the type of treatment a patient would like to have and how much medical intervention they would like to have during end-of-life care. The MOST form is used in 32 states, Furman said.

The form is more detailed than a living will because it addresses not only the question of resuscitation, but specifies which life-saving measures, such as nutrition, hydration and medication, that a person wants to receive and under what circumstances.

The form must be reviewed annually. It allows for information sharing between providers and is part of the patient's electronic health record.

Furman said the order of controlling documents for end-of-life care is clearly defined in the bill: the living will first, the MOST form second, and the health-care surrogate, which is chosen by the patient and listed on the form, third.

Sen. Ralph Alvarado, R-Winchester, who is a physician, told his fellow committee members that the MOST form will not only assure a person's personal wishes are honored, but will also save an "immense" amount of money "just in terms of doing unnecessary treatments for folks."

"Five percent of Medicare beneficiaries die each year and their end-of-life care accounts for about 30 percent of total Medicare spending with as much as one-third spent in the last month of life," Bill First writes for Morning Consult, citing an article from the peer-reviewed journal Health Affairs.

Sen. Reggie Thomas, D-Lexington, a lawyer, said the medical community and patients need to be made aware that such forms exist. Buford said he trusted this would happen.

Senate OKs bill for review panels in medical lawsuits after lively debate between doctors, lawyers, others

This story, which was published Thursday morning, has been updated with action in the full Senate.
By Melissa Patrick
Kentucky Health News

FRANKFORT, Ky. -- The Senate has approved a bill that advocates say will help weed out "frivolous" medical malpractice lawsuits and speed up litigation for legitimate suits.

Alvarado

"Right now, Kentucky has one of the nations most litigation-friendly environments, making our commonwealth a prime and profitable target for personal injury lawyers preying upon our health care providers," Sen. Ralph Alvarado, R-Winchester, a physician and sponsor of Senate Bill 6, told the Senate Health and Welfare Committee. Opponents disputed that claim.

The Senate passed the bill Thursday 24-12. It is not expected to pass the House.

The bill would establish panels of three medical experts, two chosen by each side and the third chosen by the other two, to review suits against health-care providers to determine if the case has merit before the lawsuit can proceed. Panel findings would be admissible in court but not legally binding.

The Republican-controlled Senate passed a very similar bill last year but it got nowhere in the Democrat-controlled House, and its prospects are similar this time. However, Wednesday's committee meeting provided a detailed and lively explication of the issue, lasing almost two hours.

Vanessa Cantley, a Louisville personal injury attorney, told the committee that most medical malpractice cases are legitimate. She cited a Harvard University study published in the New England Journal of Medicine that concluded "portraits of a malpractice system that is stricken with frivolous litigation are overblown" and reported that 97 percent of claims for medical injury evaluated over a decade were deemed to be meritorious.

However, Michael Sutton of Louisville, a civil defense attorney, said defendants win 80 per cent of medical malpractice suits.

Cantley said there are 2,700 deaths in Kentucky each year due to purely preventable medical error, but, according to the state Department of Insurance, fewer than 500 lawsuits a year are filed by abuse and neglect victims. She spoke for the Kentucky Justice Association, formerly the Kentucky Academy of Trial Attorneys.

Alvarado and other opponents argued that Kentucky has become a haven for such lawsuits and bills like his have helped deter them. "Medical review panels are a proven solution for limiting baseless claims brought by a personal injury lawyer to ensure a faster, more efficient path for patients with legitimate claims, " he said.

Alvarado said the state is 4,000 doctors short of its need and the legal climate in Kentucky makes it hard to recruit and retain doctors. Sen. Julie Raque Adams, R-Louisville, the committee chair, said the expansion of Medicaid in Kentucky makes it all the more important to make the state attractive to doctors. "Anytime there's a paradigm shift, there are other policies that  need to go along with that paradigm shift," she said.

Dave Adkisson, president and CEO of the Kentucky Chamber of Commerce, said review panels "will stabilize our medical malpractice system and make our state more attractive" and "protect the legitimate cases while weeding out the meritless claims," which increase costs to consumers and employers through higher premiums and defensive medicine in the form of extra medical tests.

Kentucky's constitution bans laws that would cap damages

in lawsuits. (Care First Kentucky graphic)

Every state surrounding Kentucky offers some level of protection against medical malpractice, while Kentucky offers no legal protections for healthcare providers, according to Care First Kentucky, a business coalition supporting the bill.

Sen. Reggie Thomas, D-Lexington, a lawyer, argued that Kentucky already has laws to punish attorneys for filing frivolous cases. Alvarado said the rule isn't used much because judges "allow a lot of latitude," and Sutton said it is reserved for "really egregious conduct."

Cantley argued, subtly, that courts are the refuge for patients who suffer from abuse, neglect and malpractice. She said the federal Centers for Medicare and Medicaid Services has ranked Kentucky No. 1 in nursing-home deficiencies, and argued that state boards that discipline doctors do a poor job.

The full Senate's debate on the bill was cut short because the committee adopted a substitute version, preventing Democratic Leader Ray Jones of Pikeville, a plaintiffs' lawyer, from offering any of his amendments, which had been drafted to the original bill. Under traditional procedures, a bill gets its required readings on days between the committee meeting and the floor vote, but in recent years Republicans have given important bills readings before committee action, allowing a vote on them the day after they pass a committee.