July 26 federal report said that in most of Ky., nursing-home visits should stop, and obese, diabetics, hypertensive should stay home

Chart from White House report, adapted by Kentucky Health News; for a larger version, click on it.

This story has been updated.

By Al Cross
Kentucky Health News

The latest weekly report to states from the White House Coronavirus Task Force contains many recommendations for state and local officials that Kentucky officials have not implemented or even revealed.

For example, it recommends that the state prohibit visitation at long-term-care facilities in most Kentucky counties, those in the red and yellow danger zones as defined by the task force.

It recommends that people with obesity, diabetes and high blood pressure in those counties shelter in place, much as Gov. Andy Beshear ordered Kentuckians to do from late March to early May.

Beshear spokeswoman Crystal Staley told Kentucky Health News Monday morning that Beshear met with Dr. Deborah Birx, the task force's response coordinator, "to gather recommendations directly, and the actions taken by Gov. Beshear follow her advice. She would agree that too many Kentucky counties are in danger and that action was needed statewide."

Still, the recommendation to stop visitation at long-term-care facilities will be at the top of the agenda for Tuesday's meeting of the task force that the state has assembled to help the facilities get through the pandemic, task-force coordinator Keith Knapp said Monday morning.

The White House report also recommends that public officials "Ensure that all business retailers and personal services require masks," something that is not being done in much of the state, if anecdotal reports of limited mask wearing and enforcement in many businesses are indicative.

Beshear has acknowledged the need for better enforcement by businesses, and backup enforcement by health departments. "There's not been enough enforcement out there; we can admit to that," he said July 27.

Beshear has gone farther than the recommendations in at least one case, limiting social gatherings to 10 people -- something the task force recommended by done only in red zones.

The latest White House report, dated July 26, was sent to state officials. It was obtained and published by The New York Times. Kentucky officials have not responded to requests for a copy of the report; one of Beshear's emergency pandemic orders gives custodians of public records 10 days to respond to requests for records instead of the usual three.

Here are the recommendations to red and yellow zones in Kentucky in the July 26 report. Most are the same for both zones; this list notes major differences.

Public Messaging
Wear a mask at all times outside the home and maintain physical distance
Limit social gatherings to 25 people or fewer (10 in red zones)
Do not go to bars or nightclubs
Use takeout, outdoor dining (indoor dining in yellow zones when strict social distancing can be maintained)
Protect anyone with serious medical conditions at home by social distancing at home and using high levels of personal hygiene (in red zones, handwashing and surface cleaning are emphasized)
Reduce your public interactions and activities to 50% of your normal activity (25% in red zones)
Public Officials
Limit gyms to 25% occupancy and close bars until percent positive rates are under 3; create outdoor dining opportunities with pedestrian areas (gyms in red zones should be closed)
Institute routine weekly testing of all workers in assisted living and long-term care facilities; require masks for all staff and prohibit visitors
Ensure that all business retailers and personal services require masks and can safely social distance Increase messaging on the risk of serious disease for individuals in all age groups with pre-existing obesity, hypertension and diabetes, and recommend to shelter in place
Work with local community groups to provide targeted, tailored messaging to communities with high case rates, and increase community-level testing
Recruit more contact tracers as community outreach workers to ensure all cases are contacted and all positive households are individually tested within 24 hours
Provide isolation facilities outside of households if positive individuals can't quarantine successfully
Testing
Move to community-led neighborhood testing and work with local community groups to increase access to testing (in red zones, increase community-level testing)
Surge testing and contact-tracing resources to neighborhoods and ZIP codes with highest case rates
Diagnostic pooling: Laboratories should use pooling of samples to increase testing access and reduce turnaround times to under 12 hours; consider pools of three to five individuals
Surveillance pooling: For family and cohabiting households, screen entire households in a single test by pooling specimens of all members into single collection device

The report also includes, for each state, four maps showing new cases, positive-test rates and the change in each from week to week. Here are Kentucky's maps from the July 26 report, comparing the week of July 18-24 with the previous week, July 11-17. For a larger version of the image, click on it.

Judge rules foundation that pays UK doctors and bills patients is a public agency and must follow the Kentucky Open Records Act

A Fayette Circuit Court judge has ruled that the Kentucky Medical Services Foundation, which bills patients and collects millions of dollars for UK HealthCare doctors, is a public agency and must follow the state open-records law, Linda Blackford reports for the Lexington Herald-Leader.

Kentucky.com photo

Judge Kimberly Bunnell agreed with a 2015 decision by the state attorney general’s office that KMSF is a public agency because the University of Kentucky created it and UK doctors run it.

Bunnell ruled from the bench April 25 and an agreed order was signed May 29.

In a separate case in March, Blackford reports,  Bunnell affirmed another opinion from the attorney general’s office and ruled that the UK HealthCare Compensation Planning Committee, which decides how much doctors should be paid, is also subject to state open-records and open-meetings laws.

Both cases were initiated by former UK medical student Lachin Hatemi, who was seeking various financial records of KMSF and the compensation committee. His attorney, Andre Regard, told Blackford, "This has been an uphill battle that I am sure will be appealed. I give credit to Lachin Hatemi, who, as a private citizen, has taken up this battle."

KMSF could take the case to the Kentucky Court of Appeals. Jay Grider, a UK anesthesiologist who is president and CEO of the foundation, declined to comment to the Herald-Leader.

The foundation was created in 1978 to help the university pay doctors competitive salaries and support its academic and service missions, Blackford reports. According to 2017 tax documents, it had gross revenue of $258 million in 2016.

"That money pays UK doctors, but its vast coffers have also been used to help UK in real-estate transactions, construct a daycare at UK, pay for use of a private airplane for UK officials, and fund contracts worth millions of dollars with consultants and lawyers," Blackford notes. "Those contracts haven’t been subject to state procurement rules and don’t go through a bidding process or receive approval from the UK Board of Trustees."

UK calls the foundation an affiliated corporation, but insists it is a separate entity that is not subject to the state’s Open Records Act.

In support of the ruling, Amye Bensenhaver, who wrote numerous open records opinions as an assistant attorney general and recently co-founded the Kentucky Open Government Coalition, told Blackford, “I think it emphasizes the fact that you can’t establish a private entity as an alter ego to conduct public business behind closed doors."

In an op-ed for Kentucky newspapers, Bensenhaver says the issue is "whether a public agency can avoid the application of the open records law by secreting away its records in a 'foundation' that is, in reality, established, created, and controlled by the agency seeking to evade accountability."

State refuses to release correspondence with feds on Medicaid waiver; Beshear rules against cabinet; appeal seems likely

By Melissa Patrick
Kentucky Health News

The Cabinet for Health and Family Services has refused to provide the Kentucky Equal Justice Center correspondence between the state and federal government about Kentucky's proposed changes to Medicaid, saying the documents are exempt from the state Open Records Act because they include "preliminary recommendations and opinions on policy developments."

Attorney General Andy Beshear disagreed in a Sept. 25 opinion, and said the cabinet had failed to satisfy its burden of proof to withhold the documents.

The KEJC asked May 18 for all correspondence on or after Jan. 1, 2016 between the governor's office and/or CHFS and the U.S. Department of Health and Human Services, including the Centers for Medicare and Medicaid Services, related to the state's request for a waiver of some Medicaid rules.

Republican Gov. Matt Bevin's request was filed about a year ago and is expected to be approved soon. State officials have said they are making plans to implement the program in January.

"Obviously, we have a strong interest in looking at these records because we are very concerned about the Medicaid waiver and what the effect of that waiver is going to be," Anne Marie Regan, KEJC's senior staff attorney, said in a telephone interview. "And we have a right to know what those documents look like. We have a right to some transparency in the process."

The Cabinet's first letter to Regan, dated May 23, said the documents were "not readily available," and that they needed until May 30 to compile, review and redact them. Beshear's opinion says the agency didn't provide a sufficiently "detailed explanation" to invoke an exemption, and said that its explanation did not "constitute a reason for additional delay."

The cabinet's second letter to Regan, Aug. 31, said that after searching all of its databases, "the search revealed no releasable documentation," and all of the documents were exempt because they include "preliminary recommendations and opinions on policy developments." It added that if HHS approves the waiver, "those communications that become part of the final agency action will then become releasable."

When KEJC appealed to Beshear, his office asked the Cabinet for copies of all existing responsive documents for a private or in camera review.

The Cabinet provided only five documents for review, and told the Attorney General it was "reluctant to release the documents withheld . . . even solely for in camera review"

The opinion, signed by Assistant Attorney General Michelle D. Harrison, said that since the cabinet didn't provide all of the records in the dispute for review, it had "failed to satisfy its burden that all of the requested records were properly withheld," adding that "the sampling provided was largely nonexempt."

The opinion said, "Our in camera review of the five pages that CHFS provided, which are purportedly representative of the remaining e-mails withheld, refutes the agency's position that any recommendations or opinions are contained therin with a single exception. . . . With the exception of a sentence, none of the information summarized in either document could be properly characterized as recommendations nor were any opinions expressed or policies formulated therein."

Under state law, the cabinet must hand over the requested documents to the justice center or appeal the decision in court within 30 days of the opinion.

Cabinet spokesman Doug Hogan said in an e-mail, "The Cabinet is confident in its determination that the records are exempt because they are preliminary recommendations or opinions on policy developments."

An appeal also seems likely because Beshear, a Democrat who might run against Bevin in 2019, is already at odds with the governor on several issues.

The justice center has been a vocal opponent of the waiver proposal, which mainly targets able-bodied adults who qualify for Medicaid under the expansion of the program to those who earn up to 138 percent of the federal poverty line, under the Patient Protection and Affordable Care Act.

In addition to saving the state money, the new plan is designed to encourage participants to have a higher level of involvement in their health care through things like premiums and work requirements -- both of which the justice center adamantly opposes. It also says there will be 95,000 fewer Kentuckians on Medicaid in five years than if the plan isn't implemented.

Regan pointed out that it's important to know that the Cabinet is accurately reporting what thousands of Kentuckians said during the two open-comment periods (most of which were in opposition to the plan) and what the federal government is requiring the state to do to get it approved.

"The process has not been transparent. We don't really know what the state is saying to the government. We don't know what the federal government is saying back. This has been going on now since last year," Regan said. "We think we are entitled to that information to evaluate whether what the state is saying is accurate."

The cabinet asserted that the waiver is a "draft" and should be exempt because if released it would "'potentially disrupt the negotiation process,' and 'could also create confusion among individual consumers' in addition to program staff," the opinion said.

Former director of UK medical foundation says it's 'gone beyond its scope' but UK officials say it's helped them do much good

A foundation that the University of Kentucky created to supplement pay for physicians has "gone beyond its scope," its former director told the Lexington Herald-Leader for a long story examining the workings of the Kentucky Medical Services Foundation.

Headlined "How the secretive arm of UK HealthCare spends $200 million a year," the story by Linda Blackford noted in the second paragraph, "Although its board is made up almost entirely of UK doctors, UK contends the foundation is a separate, private entity that does not have to make its records available for public inspection." That issue is in court.

The university did give the Herald-Leader some records, and those documents and tax and court filings showed that UK officials "used the foundation’s coffers to pay for a private airplane, construction of a daycare center, and millions of dollars in contracts with consultants and lawyers that aren’t subject to state procurement rules and don’t have to go through a bidding process," Blackford reports. "It even pays for the Keeneland membership of UK Executive Vice President for Health Affairs Michael Karpf, and supports aging foxhounds at the Iroquois Hunt Club."

The foundation's former director, Darrell Griffith, "cited several examples of the foundation's creeping mission in an affadavit filed in a lawsuit against UK by a former surgeon," Blackford writes. "For example, Griffith questioned the foundation’s decision to hire consultants to help a failing business at UK’s Coldstream Research Park, rent a private airplane for top-level UK HealthCare officials, become a landlord, and build a daycare on UK property and subsidize its day-to-day operations." He said it was designed to operate outside control of UK trustees and state procurement law.

UK officials say the foundation has allowed them to do such things as add Good Samaritan Hospital to UK HealthCare, move several UK HealthCare functions to a remodeled department store in the old Turfland Mall and subsidize day care for children of UK employees.

UK appeals attorney-general rulings that say doctors' foundation and compensation committee are public agencies

The University of Kentucky has appealed to Fayette Circuit Court two attorney general's rulings that the foundation that bills for and pays UK doctors and the UK HealthCare Compensation Planning Committee are public agencies subject to the state open-records law. Attorney-general decisions in open-government matters have the force of law unless overturned in court.

Lachin Hatemi (Herald-Leader photo by Patrick Mitchell)

Both lawsuits name as a defendant Lachin Hatemi, a former UK medical student who requested records of the committee and the Kentucky Medical Services Foundation, and Attorney General Andy Beshear.  He and his predecessor, Jack Conway, ruled that the committee and the foundation are public agencies because UK faculty members run them. "The foundation contends in multiple lawsuits that it is a private entity that doesn’t have to allow the public to inspect its records," notes Linda Blackford of the Lexington Herald-Leader.

"Hatemi’s requests included the names of students who received college scholarships from the foundation, numerous financial records and the foundation’s financial relationships with private businesses," Blackford reports. He also requested minutes of the Compensation Planning Committee, which is "made up of faculty and department chairs," Blackford reports. "UK has argued that because the committee provides advice, not policy, it’s not a public entity. The foundation’s lawyers characterized Hatemi’s requests as 'an attempt to disrupt KMSF operations and harass and intimidate KMSF employees and officers for whom he has previously expressed contempt,' the documents say. However, neither the foundation nor UK asked for any specific action against Hatemi." Beshear's March 2016 opinion said the foundation’s lawyers had not presented “clear and convincing evidence” that Hatemi’s requests were unreasonable or made to harass.

Blackford notes, "The foundation has made headlines in the past year because of its links to a controversial UK surgeon who lost his privileges to work in UK hospitals in August. Paul Kearney alleged that UK administrators decided to pursue the revocation only after he started asking questions about how the foundation was spending money. Hatemi is one of Kearney’s former students."

UK pays big to settle a health-care debacle but keeps almost all details under wraps; Herald-Leader says trustees should worry

"The University of Kentucky has spent more than $5 million in the last year to fix federal billing issues involving a Hazard cardiology practice it acquired three years ago, but UK officials have declined to provide documents detailing problems that led to the payments," including an audit of the Appalachian Heart Center that UK calls "preliminary" though the issue has been resolved, Linda Blackford reports for the Lexington Herald-Leader.

Most of the money went to Medicare and Medicaid, but $1 million went to a Washington lawyer whose billing records the university largely refused to release, citing attorney-client privilege. The university's trustees were told about the matter at a dinner meeting, which the Herald-Leader said it didn't cover because the agenda for the meeting did not include the matter. UK says no minutes were taken at the meeting, normally a social event that precedes formal meetings the next day.

The Herald-Leader said it would file an appeal with the attorney general, whose decisions in open-records and open-meetings matters have the force of law unless a court rules to the contrary. “We have strong concerns about the overall lack of transparency by the university in this case,” Editor Peter Baniak said. “Records about the issues involving this clinic should be public, as should the information presented and discussion that took place in an open meeting of the board of trustees.”

In an editorial, the newspaper attacked UK officials' secrecy about the case and other health-care issues, such as appealing an AG's decision that that the Kentucky Medical Services Foundation isn't a public agency. "Their imaginative legal arguments and bizarrely incomplete responses to requests for information by the Office of the Attorney General, this newspaper and a private individual should embarrass and trouble the trustees," it said, noting that a UK official said the university paid back "more than what was required."

"Who pays an attorney $1 million to settle a dispute by paying more than was owed?" the editorial asked. "If this were a one-off we might think that UK HealthCare and KMSF, which handles billing for UK physicians, are just muddling around to avoid admitting their deal went bad. But it’s only the latest in a series of stories that indicate a pattern of secretiveness in UK’s vast health-care empire."

Medicare ratings for nursing homes rely heavily on self-reported data; recent inspection data are available elsewhere

Next time you look at Medicare's ratings for nursing homes, be aware that most of the information used to make the ranking is based on self-reported data and is not verified by the government.

Consumers and investors make critical decisions based on these misleading "gold standards" that are doled out by Medicare, Katie Thomas reports for The New York Times.

"Only one of the three criteria used to determine the star ratings - the results of the annual health inspections — relies on assessments from independent reviewers," Thomas writes. "The other measures — staff levels and quality statistics — are reported by the nursing homes and accepted by Medicare, with limited exceptions, at face value."

ProPublica, the nonprofit, investigative journalism enterprise, offers a program, Nursing Home Inspect, that allows consumers to search and analyze the details of recent nursing home inspections, featuring tools the federal government's Nursing Home Compare doesn't have, including the ability to search using any keywords and the ability to sort results based on the severity of the violation and by state. (Read more)

The Medicare ratings also do not account for fines and other enforcement actions by state, rather than federal, authorities,Thomas reports, or complaints filed by consumers with state agencies.

Starting this year, Medicare will use this same type of rating system not only in nursing homes, but also in hospitals, dialysis centers and home-health-care agencies, Thomas writes. And federal officials told Thomas that "while the rating system can be improved — and that they are working to make it better — it gives nursing homes incentives to get better." They cite the homes' reduced use of physical restraints, and fewer reports of bedsores, as examples of improvement.

But current and former nursing home employees, lawyers and advocacy groups say some nursing homes have "learned how to game the rating system," Thomas writes. Nursing home ratings have risen steadily since the program began, she notes. "In 2009, when the program began, 37 percent of them received four- or five-star ratings. By 2013, nearly half did."

The Times analysis also shows that even if a nursing home has a history of poor care, it self-reports better. "Of more than 50 nursing homes on a federal watch list for quality, nearly two-thirds hold four- or five-star ratings for their staff levels and quality statistics," Thomas writes. These same homes received one or two stars for the health inspection, which is conducted by state workers.

“These are among the very worst facilities, and yet they are self-reporting data that gives them very high staffing and very high quality measures,” Toby S. Edelman, a senior policy lawyer with the Center for Medicare Advocacy,told Thomas. “It seems implausible.”

Courier-Journal editorial says Beshear must set Cabinet for Health and Family Services right on child-abuse records

The Courier-Journal published a remarkable editorial Sunday excoriating the Cabinet for Health and Family Services for the high level of secrecy in which it has enveloped cases of children who were killed or nearly killed while its caseworkers were supposed to see that they were protected from harm. Last week a judge ordered the cabinet to pay nearly $1 million in civil penalties and attorneys' fees to the newspapers that have been seeking the records. Rather than excerpt the editorial, we publish it in full, along with photographs of the officials it holds responsible. For larger versions, click on the images.

Herald-Leader blasts UK for secrecy surrounding children's heart program and its efforts to rebuild it despite nearby competition

The Lexington Herald-Leader blasted the University of Kentucky in an editorial Sunday for "stonewalling questions about the decision to halt pediatric cardiothoracic surgeries and the mysterious sidelining of Dr. Mark Plunkett, the high-profile surgeon UK hired in 2007 to rebuild that program."

Mark Plunkett

The editorial says UK officials implied that "all would be clear" after their examination of the children's heart program, but "nothing is clear" after they issued a 100-page report that "offers no explanation about what went wrong. In fact, Plunkett's name never appears in the report."

But the report does acknowledge two challenges in rebuilding the program: "There are several excellent congenital heart centers in close proximity" to Lexington, and "In some cases we must regain the trust of our referring providers." Dr. Michael Karpf, UK's vice president for health, has been publicly appealing for referrals of all types from hospitals and physicians in Western Kentucky, where UK competes with Vanderbilt University.

Michael Karpf

"After two unsuccessful, no doubt very expensive, efforts to build this program, UK wants to try again," the editorial says. "And it wants to regain trust of referring physicians and families with very sick, very young children despite the fact that it has consistently undermined trust by refusing to answer legitimate questions. UK has in fact agreed to pay a lot of money to avoid a public discussion of what went wrong," keeping Plunkett on the payroll, then paying him $1.5 million for "a vow of silence on both sides."

The editorial concludes, "It is aggravating that UK, a public land-grant institution in a very sick state, is intent on carving out a specialized, expensive health-care niche that's already filled when there are so many needs that are not being met. It is also deeply disturbing that UK's energy and treasure are aimed at maintaining a shroud of secrecy over this program. We still don't know much about what happened in Plunkett's operating rooms but it is clear that UK botched this opportunity to regain the public's trust." (Read more)

Asked to reply, UK spokesman Jay Blanton said, "First, our job is to make sure that Kentuckians have access to the most complex health care. Kentuckians should not have to go outside Kentucky to have access to such high-quality, complex care. . . . If we didn’t have such a program, Kentuckians – particularly those in Eastern Kentucky – will have to leave the state for critically important pediatric care. Moreover, part of the requirements of having a Level 1 trauma center and service for this region is to have an appropriate presence in this critical area of children’s care.

"Second, we’ve been totally forthright. Our standards and expectations – for both transparency and quality – are evidenced by, among other things, our ranking just this month of 12th out of 118 academic medical centers for quality, by University Health Consortium. UHC provides an objective, impartial analysis across a range of quality measures. You don’t rank 12th in the country if you are not putting forward, in a transparent fashion, your numbers and outcomes across an array of metrics and quality measurements."

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.

Petition drive from parents asks UK Healthcare to release mortality rates for cardiothoracic surgeries on children

More than 250 people have signed a petition asking the University of Kentucky hospital "to make public the mortality rates for pediatric cardiothoracic surgery patients from 2010, 2011 and 2012," Linda Blackford reports for the Lexington Herald-Leader. "All pediatric cardiothoracic surgeries were suspended at UK last fall amid an internal review." UK spokesman Jay Blanton said Monday the investigation is not complete.

"In May, the state attorney general's office issued an opinion that said UK must release mortality rates and other data about the cardiothoracic surgery program to WUKY, the university-owned radio station," Blackford reports. "UK has acknowledged that it calculated mortality rates for the program as part of its investigation, but has refused to release them, citing patient confidentiality laws." The Herald-Leader also requested the information under the Kentucky Open Records Act.

Read more here: http://www.kentucky.com/2013/08/05/2751040/parents-push-petition-urging-uk.html#storylink=cpy

Read more here: http://www.kentucky.com/2013/08/05/2751040/parents-push-petition-urging-uk.html#storylink=cpy

The three-year span includes the tenure of ardiothoracic surgeon Dr. Mark Plunkett, who no longer works at UK. Jennifer Allen, whose one-year-old daughter died after having three surgeries performed by Dr. Plunkett, wrote on the petition, "We deserve to know this information, we CAN understand and comprehend this information. It is our right to know and the right of the public!" Allen's daughter suffered from hypoplastic left heart syndrome, where the left side of the heart is underdeveloped and can't pump blood properly. Allen told Blackford she finds it "very suspicious" that UK won't release the information. UK says there were so few surgeries at times that patients' identities could be deduced.

Tabitha Rainey, whose son survived cardiothoracic surgery at UK, before being moved to another hospital, started the petition after being interviewed by CNN, which reported on the issue over the weekend and updated its story today with news of the petition. She said she doesn't accept UK's response that publicly releasing mortality rates would somehow harm patient confidentiality, telling Blackford, "There are no names and no dates, just the data on how many have passed on." (Read more)

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Read more here: http://www.kentucky.com/2013/08/05/2751040/parents-push-petition-urging-uk.html#storylink=cpReadmore here: http://www.kentucky.com/2013/08/05/2751040/parents-push-petition-urging-uk.html#storylink=cpy, wrto

Chief of cardiothoracic surgery and pediatric heart program at UK, suspended from surgeries, takes job in Florida

Dr. Mark Plunkett, the chief University of Kentucky cardiothoracic surgeon whose surgery program was suspended last year for unspecified reasons, has accepted a new job a the University of Florida.

The internal review of UK HealthCare's pediatric cardiothoractic program is ongoing and should be completed in the next few weeks, Michael Karpf, UK's executive vice president for health affairs, told Linda Blackford of the Lexington Herald-Leader.

In December, Brenna Angel, reporter for university radio station WUKY, identified Plunkett as the surgeon at the center of the program review. At the time, Plunkett was on a leave of absence but remained on staff with a $700,000 salary, Angel reported. WUKY requested data under the Kentucky Open Records Act about Plunkett's most recent surgery and his patient mortality rate, but UK denied such requests. Attorney General Jack Conway ruled that UK must release the mortality rates and other data, but UK Has appealed to Fayette Circuit Court, citing privacy rules in the federal Health Insurance Portability and Accountability Act, even though Conway said HIPAA doesn't preempt the Open Records Act, as Angel reported. Angel has since left the station for Lexington city government but the station and the Herald-Leader are defending the appeal.

In addition to being chief of UK's Division of Cardiothoracic Surgery, Plunkett was director of its pediatric cardiac program and a co-director of UK's Gill Heart Institute, says his UK biography. He came to UK in 2007 from the UCLA medical center, where he worked with Karpf. His resignation is effective Aug. 14, UK officials told Blackford.

Attorney general says UK should hand over records on children's heart surgeries, which have been suspended pending review

Attorney General Jack Conway has ruled that the University of Kentucky hospital violated the state Open Records Act by refusing to give a reporter for the university-owned radio station records relating to the work of the chief of cardiothoracic surgery, who has stopped doing surgery on children. UK refused to let Conway's staff examine the records to evaluate UK's claimed need for confidentiality.

After inquiries by Brenna Angel of WUKY, "UK announced that the hospital had stopped performing pediatric cardiothoracic surgeries pending an internal review," John Cheves writes for the Lexington Herald-Leader. Angel reports that she sought records on Dr. Mark Plunkett, left, who was also director of the pediatric and congenital heart program: "the date of Plunkett’s last surgery, the mortality rate of pediatric heart surgery cases, and documentation related to the program’s review." She sought no patient-specific information.

UK denied her request, citing the federal Health Insurance Portability and Accountability Act and arguing that release of the information could lead to the identification of one or more patients because Plunkett was doing so few surgeries on children. It also cited HIPAA in refusing to let Conway's staff review the records. Conway rejected that argument, noting that HIPAA does not supersede state laws and even make allowances for them.

Because it deals with the Open Records Act, Conway's decision has the force of law. UK can appeal the decision to circuit court within 30 days of March 27, the date of the decision. "UK spokesman Jay Blanton says officials are considering whether to file an appeal," Angel reports. The decision was publicly released Monday, the same day UK held a press conference about "the progress UK Healthcare has made in cardiology," she notes. "Yet the pediatric cardiothoracic surgery program remains under review, and patients from Central and Eastern Kentucky are being referred to hospitals out of state. Dr. Mark Plunkett remains on staff."

When Angel asked Dr. Michael Karpf, UK's executive vice president for health affairs, to comment, he replied, “We’ll have something to say about that in a little while.” Cheves notes, "UK recruited Plunkett, a noted surgeon at the University of California at Los Angeles, in 2007 to strengthen its pediatric heart program. He makes $700,000 a year, one of the highest salaries at UK." (Read more)

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UK has its pediatric heart program under review; chief is on leave, and patients are being referred to other hospitals

Kentucky Children's Hospital at the University of Kentucky is reviewing its cardio-thoracic surgery program and referring surgical patients to other hospitals, "but the reasons why are unclear," Brenna Angel reported Dec. 21 for WUKY-FM, the university-owned station.

Angel did identify "the surgeon at the center of the review," Dr. Mark Plunkett, left, who is on a leave of absence but "remains on staff at UK with a $700,000 annual salary," as chief of cardio-thoracic surgery. "UK denied an open-records request for the date of his most recent surgery and his patient mortality rate," citing privacy rules in the federal Health Insurance Portability and Accountability Act. It was unclear how release of such statistics, without any personally identifying information, would compromise privacy. Plunkett and officials of the medical center refused to be interviewed.

"It's been pretty hush-hush," Tabitha Rainey of Lexington, the mother of a Plunkett patient, told Angel, who reported: "Plunkett and his assistant Dr. Deborah Kozik operated on Waylon seven days after he was born. Tabitha was later told that Dr. Plunkett was taking a leave of absence." Rainey told Angel, "Months went past and they lost another patient, who was a dear friend of mine, and it was pretty heavy in the unit at the time. Then soon after I guess they decided to stop doing the surgeries and review the entire program."

Angle was able to get some records from UK and reported they showed that "The number of children Dr. Plunkett operated on this year is down around 43 percent from two years ago." UK Trustee Dr. Charles Sachatello, a surgeon who sits on the Board of Trustees' health-care committee, told Angel, "I was not aware of that, and that was never announced at the Board of Trustees meeting." Sachatello told Angel that UK should merge its pediatric heart program with the one at the University of Louisville because of the high operational costs of such programs. (Read more)

Judge rules University of Louisville's hospital is public and subject to Open Records Act; it may appeal

The University of Louisville's hospital is a public entity, a Jefferson Circuit Court judge has ruled in a lawsuit filed to get access to the university's deals with other health providers.

Judge Martin McDonald ruled yesterday in favor of The Courier-Journal, WHAS-TV and the American Civil Liberties Union, noting that the university makes or approves all appointments to University Hospital's board of directors. The university had argued that the board, and thus the hospital, was not a public agency under the state Open Records Act.

The hospital said it might appeal the ruling. McDonald gave it 30 days to give him the records being sought, along with arguments about why they should be exempt" under exceptions to the law, reports The C-J's Andrew Wolfson. "He gave the news organizations at the ACLU 20 days to respond to any claimed exemptions." The hospital has said revealing contracts would put it at a competitive disadvantage.

The suit began after the university refused to let the plaintiffs see records related to its proposed merger with Jewish Hospital & St. Mary's HealthCare and Lexington-based St. Joseph Health Care System. Gov. Steve Beshear vetoed the merger on grounds that a public hospital should not be bound by a religious organization's health-care policies. This month the hospital announced a new deal with KentuckyOne Health, which includes the faith-based entities, but said reproductive services would not be affected despite a policy of "respect" for Catholic health directives. (Read more)

Six of 41 child-abuse fatalities show improper follow-up by Cabinet for Health and Family Services, Herald-Leader analysis finds

The way child-abuse deaths are reviewed in Kentucky continues to be problematic. Looking at the 41 child fatalities in 2009 and 2010, Lexington Herald-Leader reporters Beth Musgrave and Bill Estep found at least six cases in which the Cabinet for Health and Family Services "did not do an internal review even though there were previous reports involving the family before the child died."

State law requires the cabinet to conduct such a review when a child dies or nearly dies because of abuse or neglect and the cabinet had prior involvement with the family.

That didn't happen in the case of 2-year-old Derek Cooper, whose father placed his hands over the crying boy's mouth "until the child was silent," a state report said. Cooper's father, Brandon Fraley, had had contact with the cabinet when he was a child himself, and in 2006 there was an allegation of domestic violence against him, Musgrave and Estep report. Cabinet spokeswoman Jill Midkiff said the cabinet doesn't do internal reviews when the contact with the cabinet occurred when the alleged abuser was a child, but Midkiff "provided no explanation about why the 2006 domestic violence investigation of Fraley didn't trigger an internal review," the newspaper reports.

The analysis also showed vast differences in the way internal reviews are conducted in different parts of the state. "Some of the reviews appeared to be thorough, but in others, child-protection workers produced only one-page reports with little detail on what happened to the children and no assessment of potential improvements," Musgrave and Estep report.

"The cabinet for so long has hidden everything it could," said state Rep. Susan Westrom, D-Lexington, who tried earlier this year to pass a bill that would create an external child-fatality review panel. Gov. Steve Beshear has issued an order to create such a panel, whose members will review cases and make recommendations. The panel will not have cabinet staff as members.

Westrom's bill got hung up partly over the cabinet's attempt to impose further restrictions on the sort of information it is required to make public. The newspaper's analysis the result of a long fight the Herald-Leader and The Courier-Journal have waged to make the child-abuse documentation available to the public. C-J lawyer Jon Fleischaker said on KET yesterday that the cabinet continues to redact more information that it should, in an effort to protect its own interests. The fight continues in the appellate courts. (Read more)

Beshear to have outside panel review cases of children killed or life-threatened by abuse

An independent panel of experts will review cases of children who have been killed or severely hurt by child abuse or neglect, Gov. Steve Beshear announced Monday. The panel will have 17 members and be based in the Justice and Public Safety Cabinet. Its aim will be to assess if the state's child-protection workers did all they could to protect children who died as a result of abuse. It will also determine causes of death.

The Cabinet for Health and Family Services "released thousands of pages of documents Monday that detail the state's involvement with dozens of children who were killed or nearly killed as a result of abuse of neglect," reports Beth Musgrave for the Lexington Herald-Leader. "Still, the cabinet continues to withhold some case files and has redacted large portions of others."

The release is the result of a lengthy court battle between the cabinet and the state's two largest newspapers, the Herald-Leader and The Courier-Journal. The newspapers argued documents pertaining to these cases were subject to open record laws and Franklin Circuit Court Judge Phillip Shepherd agreed. The cabinet released 76 of about 140 files, but with key information omitted. In February, Shepherd ruled the cabinet had 90 days to hand over remaining case files, fined the cabinet $16,000 for withholding the records and ordered it to pay $57,000 in attorney fees for the newspapers.

The cabinet appealed the ruling in the Court of Appeals, but on July 9, the court sided with the newspapers, refusing to allow the documents from being withheld. More than 40 similarily-redacted cases were released yesterday but the cabinet filed an appeal with the Kentucky Supreme Court. "We disagree on how much personal information about the children and private individuals included in caseworker files should be made public," Cabinet Secretary Audrey Haynes said.

Also yesterday, Beshear issued an order to create the panel, which will meet four times a year and will issue an annual report that details issues it finds. "When a child dies or is critically injured because of abuse or neglect, we must carefully review the practices of all government entitites involved to make sure that our system performed as it was supposed to — and if not, that review allows us to take disciplinary action," Beshear said.

Panel members will include law enforcement, prosecutors and medical experts, Musgrave reports. While the meetings will be open to the public, the records consulted during them will not be subject to open records laws. (Read more)

This is Child Abuse Awareness Month; tips for prevention

April is child abuse awareness month, and the state Cabinet for Health and Family Services is reminding Kentuckians that it's the law to report suspected child abuse or neglect.

"Protecting our children should be everyone's number one priority, and during the month of April, we are raising awareness about the warning signs of child abuse and how to report it," Gov. Steve Beshear said. "The cabinet works year round to educate our families and investigate every aspect of abuse. Together, we can make Kentucky a safer place for all our children."

To report child abuse, Kentuckians should call 800-KYSAFE1. Calls are anonymous. If the report meets the criteria for abuse, an investigation is conducted within 24 hours in most cases or, if the child is suspected to be in immediate danger, they are conducted within the hour.

Callers should try to know the child's name, approximate age, address, parents' names and location of the child when the call is made. They should also have names and phone numbers of other people who have information about the suspected abuse.

The ultimate goal is to reunite families when circumstances improve. "We want children to return home to a stronger, safer family," said Jim Grace, assistant director of the Department for Community Based Services' Division of Protection and Permanency.

The cabinet's handling of child abuse investigations and its reluctance to release records pertaining to child abuse deaths and near deaths has been a hot-button issue in the past year. The Courier-Journal and Lexington Herald-Leader both sued the cabinet for refusing to turn over records and a judge twice ruled the cabinet was wrong not to do so. Since, it has released hundreds of pages of records, but has chosen to redact, or omit, some of the information therein. In January, Beshear acknowledged the cabinet had been accused of "operating under a veil of secrecy in a supposed attempt to protect inept workers and a poorly designed system."  Legislators have since heard hours of arguments about the issue, and a bill that would create an external panel to review child abuse cases involving fatalities and near-fatalities, while imposing more secrecy, is one of the few measures that could pass the General Assembly when it re-convenes for one day next Thursday to end its legislative session.

In its effort to increase awareness about child abuse, the cabinet offered strategies for parents to prevent abuse, including:

• never discipling a child when a parent's anger is out of control

• never leaving a child unattended, especially in a car

• learning the signs of physical abuse, nothing bruises, cuts, burns or other injuries a child can't explain

• teaching children the difference between "good touches," "bad touches" and "confusing touches"

• listening to a child when he or she doesn't want to go with something

• noting a change in a child's behavior or attitude

• teaching children what if he or she gets lost

• teaching children the correct name for private body parts

• being alert for talk that indicates premature sexual understanding

• paying attention when someone shows an unusual interest in a child

• making sure a child's school or daycare will only release him or her to a designated person
(Read more)

House committee approves panel to investigate child-abuse deaths; findings would be closed to public

An independent panel of experts would look into the deaths of abused and neglected children and then give recommendations to state officials for how to improve its child-protection system. That was the proposal that was approved unanimously Thursday by the House Health and Welfare Committee.

In House Bill 200, "the group's meetings would be closed to the public, and its documents would remain secret," reports Beth Musgrave for the Lexington Herald-Leader. Jon Fleishchaker, a lawyer for the Kentucky Press Association, said there was no reason why the business of the panel should be secret. "We are all for a statewide panel," he said, "but the public needs to be able to see what the recommendations are."

The bill would also outline what information the Cabinet for Health and Family Services would be responsible for releasing to the public when "abused children who have had previous contact with the cabinet die or are severely injured," Musgrave reports. The legislation would allow the cabinet to "keep the names of children who suffered serious, non-fatal injuries and information that would identify siblings in the home," Musgrave reports.

The Cabinet for Health and Family Services has been embroiled in a lawsuit with The Courier-Journal and the Lexington Herald-Leader, which sued the cabinet in order to seek documents pertaining to child abuse deaths or near-deaths. A Franklin Circuit Court judge has twice ruled that the cabinet turn over its files, but it has appealed. (Read more)

Judge orders Cabinet for Health and Family Services to speed up its release of child-abuse records

The state Cabinet for Health and Family Services has been given 90 days to release thousands of pages pertaining to about 180 cases of children who died or were badly injured from abuse or neglect. The order was issued Thursday by Franklin Circuit Judge Phillip Shepherd, who called the cabinet's reluctance to comply with state open records laws an "utter failure," reports Deborah Yetter of The Courier-Journal.

The ruling is the latest in the cabinet's fight with the Louisville newspaper and the Lexington Herald-Leader. Shepherd's ruling replaces a previous order that told the cabinet to release 1,000 pages a week, which it started doing Jan. 27. The documents released so far — which have been "heavily redacted" at the cabinet's discretion and against Shepherd's ruling — represent 15 cases.

The cabinet argued it should not be obligated to release the records since it is appealing Shepherd's decision, but the judge rejected that argument. He also said the cabinet had to list reasons for why it was redacting some information "and be prepared to defend them in court after releasing the files," Yetter reports. (Read more)

Health and family cabinet continues to withhold more information in copies of child abuse records than judge allowed

The state Cabinet for Health and Family Services released three more death and near-death cases involving child abuse or neglect Friday under court order, but continued to withhold critical information. It has appealed the order.

The 2009 cases involve two babies who died from suffocation while the parents were impaired. A third case involves a 2-year-old girl from Lawrence County, who was injured after she was reportedly kicked in the head by a horse while unsupervised.

The cabinet "continues to withhold, or redact, far more information" than was allowed under the Jan. 19 order of Franklin Circuit Judge Phillip Shepherd, reports Deborah Yetter of The Courier-Journal. Shepherd said the cabinet could withhold the names of children seriously injured by abuse or neglect, names of private citizens who report suspected abuse, the names of minor siblings in the home and the names of minor perpetrators.

But the cabinet is withholding more information than that. "For example, in the case of the girl injured by the horse, the cabinet deleted the name and relationship of the adult who was watching her, even though the adult is named and identified as her grandfather in a separate internal review of the case," Yetter reports. "The cabinet also withheld juvenile and family court records in that case and the names of all adults involved." The girl recovered from the skull fracture sustained by the horse.

Gavin Villarreal never woke up after he was found with a plastic bag over his head in his crib, possibly placed over the 5-month-old's head by other young children in the home. His parents both tested positive for drugs on the day of his death and were convicted. In the third case, a month-old baby died after his father apparently rolled over him in his sleep. Both parents admitted they had been drinking and used marijuana before they went to bed. (Read more)