McConnell torpedoes emerging bipartisan deal for pandemic relief, leaving Congress where it's been for months: stuck

McConnell on Dec. 8 (Pool photo by Greg Nash via AP)

"An emerging $900 billion Covid-19 aid package from a bipartisan group of lawmakers all but collapsed Thursday after Senate Majority Leader Mitch McConnell said Republican senators won't support $160 billion in state and local funds as part of a potential trade-off," The Associated Press reports.

McConnell's staff told the negotiators that he "sees no path to an agreement on a key aspect of the lawmakers' existing proposal — a slimmed-down version of the liability shield he is seeking for companies and organizations facing potential Covid-19 lawsuits — in exchange for the state and local funds that Democrats want," AP's Lisa Mascaro and Andrew Taylor report.

In a Senate floor speech, the Republican leader said, "While Democrats hold the Paycheck Protection Program hostage over controversial state government bailouts, family businesses are closing their doors." Kentucky's Andy Beshear, a Democrat, and governor of both parties are pleading for more federal aid.

"The hardened stance from McConnell, who does not appear to have enough votes from his Republican majority for a far-reaching compromise, creates a new stalemate over the $900-billion-plus package, despite days of toiling by a bipartisan group of lawmakers to strike compromise," AP reports.

Bill on Bevin's desk would require a malpractice lawsuit to certify that an expert has said it has a reasonable basis to be filed

By Melissa Patrick
Kentucky Health News

A bill to require anyone filing a lawsuit against health-care providers to get a qualified expert to declare that the case has merit has passed the General Assembly and awaits the signature of Gov. Matt Bevin.

Rep. Chad McCoy

House Bill 429, sponsored by Rep. Chad McCoy, a plaintiffs' lawyer from Bardstown, would require plaintiffs in most medical-malpractice lawsuits, including those against long-term care facilities, to file a "certificate of merit," defined as "an affidavit or declaration" saying that the case has been reviewed by a qualified expert who says "that there is reasonable basis to commence the action."

When presenting the bill to the House on March 1, McCoy, who is also the Republican whip, said all the lobbying interests on the malpractice-claims issue came to the table after the Kentucky Supreme Court struck down a 2017 law that required such claims to go before medical review panels before proceeding.

Chief Justice John Minton wrote in the court's decision, “Of all the rights guaranteed by state constitutions but absent from the federal Bill of Rights, the guarantee of a right of access to the courts to obtain a remedy for injury is possibly the most important.”

When the 2017 law passed, McCoy warned his colleagues that it wasn't constitutional, and suggested that the state instead require merit certificates or affidavits. This year, he told them the bill, if passed, would help to stop frivolous lawsuits. Earlier, he told the House Judiciary Committee that the bill was supported by the Kentucky Chamber of Commerce, the nursing-home association and the trial attorneys, and that the Kentucky Hospital Association was neutral.

The bill passed the House 69-24 on March 1 and the Senate 37-0 on the consent calendar that is used to pass bills without debate.

The bill has exceptions. It says a certificate isn't required if "the consultation could not reasonably be obtained" before the deadline to file a suit; if "the claimant or his or her counsel had made at least three separate good-faith attempts with three different experts to obtain a consultation and that none of those contacted would agree to a consultation, so long as none of those contacted gave an opinion that there was no reasonable basis to commence the action;" or if the plaintiff "intends to rely solely on one or more causes of action for which expert testimony is not required," including claims of lack of informed consent or the legal doctrine that says an accident implies negligence.

Medical-review panel law described as ‘imperfect,’ with only 11% of 531 claims assigned to a panel after one year on the books

A Republican-backed law that established medical-review panels to screen lawsuits against health-care providers before they can proceed Is now a year old, and things have not gone exactly as proponents expected, Andrew Wolfson reports for the Louisville Courier Journal.

Source: Cabinet for Health and Family Services.
Courier Journal 

Just 11 percent of 531 claims have been assigned to a panel, findings have been issued in only 3 percent of the cases, and another 5 percent were withdrawn, settled or dismissed, Wolfson reports.

Proponents of the law, largely nursing homes, physicians, hospitals and others who claim to be subjected to frivolous lawsuits, have said the review panels would decrease the number of frivolous lawsuits and cut the cost of liability insurance for providers. Gov. Matt Bevin's administration has called the panels the "first step toward tort reform."

Opponents, including a Frankfort judge who found the law unconstitutional, say it unduly restricts people's access the the courts and is an infringement on the right to trial by jury.

"Even lawyers who defend doctors, hospitals and nursing homes say the process so far has been ineffective,” Wolfson reports.

“I’m not going to deny that the numbers aren’t good and it is an imperfect law,'' Betsy Johnson, president of the Kentucky Association of Health Care Facilities, which lobbies for nursing homes, told Wolfson.

And lawyers who represent injured people are even more critical.

“The delays aren’t fair to the citizens of Kentucky, many of whom may have been catastrophically injured or killed by negligence and whose families may need resolution of their claim in order to survive,” Louisville attorney Hans Poppe told Wolfson.

Others said the law needs more time.

"Any major policy change like the medical review panel process certainly takes time to implement, and it was expected that there would be hiccups,” said Patrick Padgett, executive vice president of the Kentucky Medical Association, told Wolfson.

Franklin Circuit Judge Phillip Shepherd ruled last October that the law violated 13 sections of the Kentucky Constitution, but it has been allowed to remain in effect while his ruling was appealed.

"The effect of the medical review panel process is not the reduction of frivolous negligence claims, but rather, the erection of barriers to the court system," Shepherd wrote. "Those that cannot afford the additional delays and costs should not be prevented from pursuing their constitutional right to a 'remedy by due course of law.' "

The appeal was argued this week and a ruling is expected in a couple of months, Wolfson reports in a separate article that details the case and includes comments from the opposing briefs.

Under the law, all claims against health-care providers must be submitted to a medical review panel  to determine its merit unless both sides agree to bypass the panel to take the case directly to court.

The panel is made up of a lawyer who serves as the non-voting chairman and three health-care professionals who determine if the suit has merit. The decision of the panel isn't binding, and claimants can still file suit even if the panel rules against them or issues no finding after nine months. However, the opinion can be used in court and the panelist called to testify.

The law includes lawsuits that involve physicians, hospitals, nursing homes, dietitians, podiatrists, EMS providers, dentists, dental hygienists, social workers, medical laboratories and speech language pathologists, Wolfson reports.

Senate passes medical tort reform bill, 20-16

By Melissa Patrick
Kentucky Health News

FRANKFORT, Ky. -- A medical tort reform bill passed the state Senate by an unusually close 20-16 vote March 1, with six Republicans and 10 Democrats opposing it. The vote raises doubts about the bill's prospects in the House.

Senate Bill 20, sponsored by Sen. Ralph Alvarado, R-Winchester, a physician, would limit contingency fees for attorneys in medical malpractice cases to 33 percent and keep apologies or expressions of regret by health-care providers from being used in malpractice cases.

A provision to keep medical peer reviews out of malpractice cases was removed from the bill because the legislature has already sent Gov. Matt Bevin a House bill with that provision.

The 33 percent limit was in a floor amendment adopted by voice vote and offered by Sen. Whitney Westerfield, R-Hopkinsville, chair of the Senate Judiciary Committee. It replaced original provisions that would have limited fees to 35 percent of the first $100,000 in damages, 25 percent of the next $100,000 and 10 percent of damages over $200,000.

Sen. Ray Jones, D-Pikeville, passionately opposed the bill in a floor speech. He said that it is a fundamental right of individuals to be able to enter into a contract and negotiate a fee amount with an attorney of their choosing. He added that limiting contingency fees will "prevent people from being able to get quality lawyers that will be willing to pursue their cases."

Jones, a lawyer, disputed Alvarado's assertion that Delaware has the same rules, saying the state allows attorneys and clients to contract around them. "This piece of legislation favors health care providers to the detriment of injured patients," he said.

The bill would also add to the review process that the legislature approved last year. Alvarado said that if a panel finds for the defendant, the plaintiff would be required to submit a sworn statement from a doctor saying that it has merit.

The bill would also change the law that allows any third party to be able to get medical records for free, which Alvarado said allows lawyers to go on "fishing expeditions" to find clients. The new rule would only allow patients free access to their own records. A floor amendment adopted by voice vote added an exemption for attorneys working without charge to have free access to their client's records.

Rep. Robin Webb, D-Grayson, a lawyer, also spoke against the bill. "This is against the medical consumer, it is against the patient, and once again against the right to contract and the free market principles that we hear so much about" from Senate Republicans, she said.

Republican senators voting against the bill were Tom Buford of Nicholasville, Jared Carpenter of Berea, C.B. Embry of Morgantown, John Schickel of Union, Wil Schroder of Wilder, and Brandon Smith of Hazard. Sens. Julie Raque Adams, R-Louisville, a lawyer who chairs the Senate Health and Welfare Committee, and Sen. Reginald Thomas, D-Lexington, who is running for Congress in the Sixth District, did not vote.

Bill to keep doctors' reviews of peers out of lawsuits is among three health-related bills legislature has sent to the governor

By Melissa Patrick
Kentucky Health News

FRANKFORT, Ky. -- A bill to keep doctors' reviews of other doctors from being used in medical-malpractice lawsuits is on Gov. Matt Bevin's desk, along with two other health-related bills that have passed both chambers of the legislature.

House Bill 4, sponsored by Rep. Addia Wuchner, R-Florence, chair of the Health and Family Services Committee, was presented on the Senate floor by Sen. Ralph Alvarado, R-Winchester. He sponsored similar bills in previous sessions that got out of the Senate, but gained little to no traction in the House. The bill passed the House 58-27 on Feb. 9.

The bill passed the Senate 25-13 on Feb. 27, with Sens. C.B. Embry, R-Morgantown, and Brandon Smith, R-Hazard, voting against it with all 11 Democrats. There was no floor debate on the bill, but opponents have voiced concerns that keeping doctors' peer reviews out of lawsuits would allow factual statements to be hidden.

Unlike previous Senate bills, the House bill has language aimed at assuring that providers who are claiming the privilege are only doing so for safety and quality purposes, in the same way that the federal law requires.

“Very few health-care initiatives have shown to be more effective in improving health care safety and quality than medical-safety peer review,” Alvarado told the Senate. He said 48 other states already have laws like HB 4. “Confidentiality in peer review encourages integrity in health care. Physicians and nurses are free to speak openly about safety and quality without the threat of punishment that litigation causes.”

The two other health-related bills on the governor's desk passed through the chambers without much fanfare.

HB 5, sponsored by Rep. Daniel Elliott, R-Danville, more clearly defines state guardianship. It adds a provision that would allow jury trials to be waived if the attorney, the family, the judge and a three-member interdisciplinary team agree that this is in the best interest of the person being considered for guardianship. If any of the parties calls for a jury trial, it would be granted.

Kentucky is the only state that still requires a jury trial for guardianship, Tim Feeley, deputy secretary of the Cabinet for Health and Family Services, told the Senate Health and Welfare Committee on Feb. 21. He said the state is overwhelmed, and that many guardians have no resources for care. He said the state is currently the guardian for 4,448 people, and social workers have 65 to 70 cases apiece, about three times more than recommended by national guidelines.

This bill passed the House 79-3 on Feb. 5, with Reps. Jim Wayne, D-Louisville, Jason Petrie, R-Elkton, and James Kay, D-Versailles, voting against it. It passed the Senate unanimously Feb. 28.

Elliott also sponsored House Joint Resolution 33, to create a pilot called Working Interdisciplinary Networks of Guardianship Stakeholders, or WINGS, to examine how the state's guardianship program is working and to identify any needed changes. It passed the House without dissent Feb. 2 and is in the Senate Judiciary Committee.

A bill to allow veterans with traumatic brain injuries to get hyperbaric oxygen treatment is also on its way to the governor's desk. HB 64, co-sponsored by Reps. Stan Lee, R-Lexington, and Tim Moore, R-Elizabethtown, passed both chambers without dissent. It is titled the "Col. Ron Ray Traumatic Brain Injury Treatment Act," for a deputy assistant secretary of defense under President Reagan who suffers from a traumatic brain injury sustained 50 years ago in South Vietnam.

While hyperbaric treatment is regularly prescribed to veterans with traumatic brain injuries, it is often denied because it is considered an "off-label" treatment and not covered by insurance. The bill would allow them access to the treatment, but not require insurance to cover it.

With legislative session more than half over, most health-related bills are still on the table; here's a roundup

For KHN's complete chart of health bills, click here.

By Melissa Patrick
Kentucky Health News

FRANKFORT, Ky. -- Most health-related bills in the legislative session appear to be driven by the state's opioid epidemic, tort reform and issues of health-care providers, but only a bill that addresses organ donation has gone to the governor, and the session is more than half over.

If signed, House Bill 84, sponsored by Republican Rep. Lynn Bechler of Marion, would require coroners and medical examiners to contact the Kentucky Organ Donor Affiliates if they know that a decedent wishes to be an organ donor. The current law only requires hospitals to contact KODA when an organ donor dies.

The bill, called "Courtney's Law," is named for Courtney Flear of Princeton, an organ donor who was killed in an automobile accident in 2015, but because of the wording of the current law her organs were not donated despite her wishes, according to Bechler's legislative update.

The opioid epidemic in Kentucky rages on, prompting lawmakers to push for bills to curb it.

Two bills are aimed at early intervention and prevention in schools. HB 55, sponsored by Rep. James Tipton, R-Taylorsville, calls for the creation of an age-appropriate curriculum on drug abuse and prevention that would be taught in every school. HB 3, sponsored by Majority Floor Leader Jonathan Shell, R-Lancaster, would require drug education as part of an "essential skills" program. Both have passed the House and are in the Senate Education Committee.

HB 246, sponsored by Rep. Danny Bentley, R-Russell, would expand access to medication-assisted therapies for treatment of substance-abuse disorders by bringing a grant-funded pilot program to the state that allows pharmacists to administer non-controlled MATs. This bill awaits a floor vote in the House.

Rep. Addia Wuchner, R-Florence, has several bills that address the opioid epidemic. HB 364 would require all pregnant women to be tested for hepatitis C, with the results added to the child's records. It also recommends that the child be tested at 24 months if the mother tests positive. Hepatitis C can be transmitted from mother to baby during childbirth. Most new cases of hepatitis C are a result of illegal intravenous drug use. This bill awaits a floor vote in the House.

Wuchner is also the sponsor of HB 148, which shifts ownership of controlled substances from a deceased hospice patient to the hospice program for disposal. Currently these drugs belong to the estate. This bill has passed the House and is in the Senate Health and Welfare Committee.

Another Wuchner bill, HB 124, calls for a comprehensive review of all state substance use disorder programs and services, and would require the state to only pay for and licence ones that follow nationally recognized evidence based protocols.

Bills for tort reform are also moving in the Republican-led legislature, with votes largely split along party lines.

HB 4, sponsored by Wuchner, would keep doctors' reviews of other doctors from being used in medical-malpractice lawsuits. It has passed the House and a Senate committee and awaits a vote in the full Senate.

Senate Bill 2, sponsored by Sen. Ralph Alvarado, R-Winchester, would limit the amount of non-economic damages that could be awarded in personal-injury and wrongful-death lawsuits. the bill is a proposed constitutional amendment, requiring a three-fifths vote in each chamber and approval by a majority of voters in a statewide referendum at the November election. It is awaiting a vote on the Senate floor, but has been passed over seven times since Feb. 14.

SB 20, also sponsored by Alvarado, would do several things, including limiting attorney fees in malpractice cases, add a requirement for a sworn statement from a doctor saying that a lawsuit has merit before it could proceed, and keep apologies or expressions of regret made by a provider from being used in a lawsuit. This bill also awaits a Senate floor vote.

Insurance and provider-issue bills are also quite prevalent, as usual.

SB 5, sponsored by Sen. Max Wise, R-Campbellsville, which would put the state back in charge of its Medicaid drug program, came about because he said pharmacy-benefit managers hired by the state's Medicaid managed-care organizations, are not paying Kentucky's independent pharmacies a fair price for their drugs -- which is putting them at risk of closing. It also calls for more transparency. This bill has passed out of committee and awaits a vote on the Senate floor.

Other states are also dealing with this issue. The Arkansas Pharmacist Association held a news conference Feb. 21 and revealed that CVS Caremark paid their CVS locations an average of $60 more per prescription than they paid their local independent pharmacies. CVS Caremark is the pharmacy benefit manager for four of Kentucky's five managed-care organization.

A bill in the Senate that is getting some pushback from consumer groups is HB 191, which would restrict the growing practice of online eye examinations. This bill, sponsored by Rep. Jim Gooch, R-Providence, is in the Senate Health and Welfare Committee.

Other bills in this category would improve telehealth access and payment to providers; update state guardianship laws; increase access to autism benefits; improve some of the administrative challenges around managed-care organizations; change how hospitals are paid for charity care; and require ambulance providers to disclose fees, among other things.

HB 64, sponsored by Rep. Stan Lee, R-Lexington, would allow eligible veterans to use hyperbaric oxygen treatment for treatment of traumatic brain injuries. This treatment is currently not covered by insurance, and the bill would not require insurance to cover it. It awaits a vote in the full Senate.

Children's health: Several of the health-related bills are aimed at improving the health of the state's children.

HB 318, sponsored by Rep. Kim Moser, R-Taylor Mill, and and SB 51, sponsored by Alvarado, would require school properties and school events to be tobacco-free. Both are sitting in their respective education committees. Alvarado has said the House needs to pass its bill first, since the Senate passed a similar bill last year but the House didn't take it up. A recent Kentucky Health Issues Poll found that 87 percent of Kentucky adults support such a law.

In the wake of a 2016 Kentucky Incentives for Prevention survey that found one in 12 of Kentucky's high-school sophomores said they had attempted suicide, HB 30, sponsored by Rep. Regina Huff, R-Williamsburg, would require educators to have two hours of in-person suicide prevention training every other school year. Current law requires a minimum of two hours of self-study every year. This bill unanimously passed the House and is in the Senate Education Committee.

Other education-related bills would require abstinence until marriage to be taught in sex-education classes, set guidelines around training for seizure disorders; and require automated external defibrillators in every school with three trained employees. Another youth-safety bill would require children under the age of 12 to wear a bicycle helmet.

Taxes and budget: In addition to the many health-related bills on the table, the Coalition for a Smoke-free Tomorrow, comprising nearly 150 organizations trying to decrease smoking in the state, is lobbying hard to raise the cigarette tax by $1, to $1.60. They say this proven tactic would not only decrease the number of teen smokers by more than 23,000, but would also cause 29,000 adults to quit smoking. Smoking is the leading cause of lung cancer in Kentucky and is also responsible for one-third of all cancers in the state.

Advocates of the tax also say it would ease the state's revenue shortage. The House is expected to release this week its version of the proposed budget for the next two fiscal years. Republican Gov. Matt Bevin proposed to eliminate funding for more than 70 programs, including five for cancer screenings and research, and local health departments are warning that adding $38.5 million to their pension liability will result in significant cuts to their programs and overall staffing if they don't get any relief.

House committee approves bill to keep doctors' reviews of other doctors from being used in malpractice lawsuits

By Melissa Patrick
Kentucky Health News

FRANKFORT, Ky. -- A bill to keep doctors' reviews of other doctors from being used in medical-malpractice lawsuits has passed a House committee and moves to the full House, where a similar bill stalled out last year.

Rep. Addia Wuchner, R-Florence, chair of the Health and Family Services Committee, told the panel that Kentucky is one of only two states that don't apply this privilege to medical peer reviews. She said protections in her bill will ultimately improve health care in the state.

"Medical peer review is an industry-wide practice that allows health-care professionals to openly, honestly and candidly discuss their performances with their colleagues and their teammates and learn from their experiences so that we can improve healthcare and outcomes for all patients," she said.

Dr. James Borders, chief medical officer for Baptist Health Lexington, assured the committee that hospital peer reviews are not an attempt to conceal anything.

"When it comes to the routine, day-to -day care of patients, we need to have the openness and flexibility to ask colleagues as to how they would do something better," he said. "I think of what a chilling effect it would have to think that every comment made in those kinds of conversations would be in some way open to legal challenge."

Wes Butler, a health-care lawyer, explained that House Bill 4 was designed to address a state Supreme Court decision in the 1990s that peer-review privilege in Kentucky should not extend to malpractice suits.

Senator Ralph Alvarado, R-Winchester, proposed a similar bill that made it to the House floor last year but didn't get a vote, largely because of a floor amendment by Rep. Chad McCoy, R-Bardstown, to allow statements of fact in peer reviews to be used in court.

McCoy, a member of the health committee, voted for Wuchner's bill, told Kentucky Health News that, "Cheese pizza is better than no pizza." He added that the language in the committee substitute that assures providers who are claiming the privilege are only doing so for safety and quality purposes, in the same way that the federal law requires, allowed him to vote for the bill.

"I am still fearful here," he said, noting that a doctor's testimony and peer review might conflict. "It didn't go where I wanted it to go, but it is an improvement and it's an important bill and like I said, 'cheese pizza'. . . . It's worth it to give up on the privilege if we can get hospitals to participate and try to make themselves better for every body out there."

Rhonda Hatfield-Jeffers, a plaintff's lawyer from Somerset, was the only person who spoke against the bill. She said that while she appreciated the changes, "We want to make sure no factual statements are hidden."

Frankfort judge strikes down law requiring medical review of malpractice lawsuits; Bevin's office says he will appeal

A judge has ruled that a new law aimed at decreasing frivolous lawsuits and lowering malpractice insurance costs was unconstitutional, and he prohibited the state from enforcing it.

The Oct. 30 ruling by Franklin Circuit Judge Phillip Shepherd said the 2017 law is unconstitutional because it restricts the right of people to plead their cases in court by requiring that the cases be reviewed by a medical panel before proceeding, Deborah Yetter reports for The Courier- Journal. 

"The effect of the medical-review panel process is not the reduction of frivolous negligence claims, but rather, the erection of barriers to the court system," Shepherd's order said. "Those that cannot afford the additional delays and costs should not be prevented from pursuing their constitutional right to a 'remedy by due course of law.' "

The law, which took effect June 29, was touted as "the first step toward tort reform" by Gov. Matt Bevin when he signed it into law, Yetter reports. Bevin's office said it will appeal the decision. "We are confident medical review panels are constitutional," spokeswoman Amanda Stamper told Yetter.

Senate Minority Leader Ray Jones, D-Pikeville, a lawyer who has strongly argued against the law, told Yetter he expects the ruling to stand, calling it a "clear barrier to access to the courts."

Legislature passes bill requiring ads against nursing homes to include their correction plan and when problem was corrected

By Melissa Patrick
Kentucky Health News

FRANKFORT, Ky. – The 2017 General Assembly has passed two bills long supported by the nursing-home industry and other health-care providers -- one to impose another obstacle on medical-malpractice lawsuits, and one that would require law firms to publish "complete information" in advertisements about long-term care facilities. Both bills are on their way to Gov. Matt Bevin.

Sen. Ralph Alvarado

Senate Bill 4 would require a panel of three medical-care providers and a non-voting attorney to review a malpractice claim before submitting it to a court. The panel would have nine months to render an opinion, but could be bypassed if all sides agreed. Trial judges would decide on the opinion's admissibility.

Similar legislation from Republican Sen. Ralph Alvarado, a Winchester physician, had passed the Senate in earlier sessions, but wasn't heard in the House, which was led by Democrats. Both chambers now have GOP majorities, but some House Republicans doubted the measure's constitutionality, so it was amended in that chamber and passed by only 51-45, with 11 Republicans joining 34 Democrats in voting against it. The Senate concurred with the changes March 3.

Proponents of medical review panels say they will cut down on frivolous lawsuits and lower malpractice insurance costs. Opponents say such laws have proven ineffective in other states and that they delay a person's right to a trial by jury.

Sen. Danny Carroll

The "truth in advertising" legislation, SB 150, would require that any advertising about a long-term care facility that includes information about surveys, inspections or investigations, also include the date of any report, the facility's plan of correction and the date the deficiency was corrected. The ad must also state that it is not authorized or endorsed by any government agency. And all of this information must be in the same color, type font and size as the other language on the publication and be equally prominent.

The bill, which raises constitutional questions about freedom of speech, is aimed at ads from lawyers seeking plaintiffs to file lawsuits against nursing homes. It awaits Bevin's signature or veto.

The sponsor, Sen. Danny Carroll, R-Paducah, said during the bill's Senate hearing that most of these "unscrupulous and unethical" advertisements come from out-of-state law firms and that this measure "creates a level playing ground." In his legislative update, Carroll said this bill "will in no way restrict civil discourse or lessen accountability for long-term care facilities."

Bills can still be passed when legislators reconvene March 29 and 30 to reconsider any bills the governor has vetoed.

Alvarado is the sponsor of SB 18, which would ban doctors' peer reviews at hospitals from being used as evidence in malpractice cases.

Rep. Chad McCoy (Image from KET)

This bill has passed the Senate and a House committee and is before the House, with an amendment filed by freshman Rep. Chad McCoy, R-Bardstown, that would exempt statements of fact from the ban.

In effort to get around McCoy's amendment, language from SB 18 has been included in amendments to several other bipartisan bills that involve children. One of those includes House Bill 524, sponsored by Rep. Addia Wuchner, R-Florence, aimed at protecting children from sex trafficking. The bill awaits a vote on the Senate floor.

Senate medical-review panel bill passes out House with changes after two hours of debate; Senate says OK, sends it to Bevin

This story has been updated to reflect concurrence of the Senate on March 3.

By Melissa Patrick
Kentucky Health News

A Senate bill that would establish review panels for lawsuits against health-care providers passed narrowly out of the state House with changes that are meant to make it more constitutional. The Senate concurred with the House's changes to the bill on March 3 and the bill now heads to the governor's desk for his signature.

The review panel would be made up of three physicians that would determine if lawsuits against health-care providers have merit before being filed in court. All parties would have to agree to bypass the review panel in order to take the case directly to court.

After almost two hours of debate, Senate Bill 4, sponsored by Sen. Ralph Alvarado, R-Winchester, passed 51-45, with 11 Republicans joining 34 Democrats in voting against the measure.

Rep. Robert Benvenuti, R-Lexington, presented the bill on the House floor and said review panels create a "fair, balanced process." He said Kentucky needs liability reform because providers are "fleeing the state" and paying much higher premiums than their counterparts in other states that have some type of reform, which he said ultimately leads to access issues for everyone.

"We've created a litigation industry in this commonwealth," he said.

Rep. Chad McCoy, one of three Republicans who spoke against the measure, said that such panels have proven ineffective in other states. He noted that 27 states have adopted review panels since the 1970s, but 10 of those states have since gotten rid of them because "they don't work."

McCoy, a lawyer from Bardstown, told House members that review panels are unconstitutional and that they "walk all over" a person's right to a trial by jury. He pointed out that they also create more claims because plaintiffs' attorneys often view them as an inexpensive way to "run it up the flagpole" to see if a case is worth pursuing.

"We're getting ready to create a new government agency and more red tape," he said. "I'm a Republican. I don't like that."

McCoy suggested that instead of review panels, the state needs to pursue a more successful system called "affidavit of merit," which would require claims to be reviewed for their merit before they are even allowed to go to court. Alvarado, after the bill's committee meeting Feb. 28, said he would support the idea, but that to be successful it would also require a constitutional change to allow economic caps on settlements. Only voters can change the state constitution.

Representatives Jason Petrie of Elkton and Kenny Imes of Murray were the other two Republicans who spoke against the bill.

Rep. James Kay, D-Versailles, spoke against it, saying it would create barriers to the courts: "This bill closes our courts, placing a barrier of doctors between the citizens of Kentucky and the judge and the jury -- closing the courthouse doors."

Rep. Jason Nemes, R-Louisville, who helped draft the House changes in the bill, said he could never have voted for the bill without the changes, which he said made it more constitutional.

Nemes explained that the House changes did three things: It sets a firm nine-month time frame for the opinion to be issued, instead of the loose, extendable six months allowed by the original bill; it calls for a list of volunteer lawyers and physicians to fill the panel seats, instead of these positions being appointed; and "most importantly," it would allows the trial judge to determine if the panel's opinion is admissible in court, instead of being automatically admitted.

Similar legislation has been introduced for years and was passed out of the Republican led Senate, but never heard in the Democrat led House. Alvarado, a physician, has been the bill's sponsor for three years.

Rep. Tom Burch, D-Louisville, former chairman of the House Health and Welfare Committee, said he had successfully killed this bill in the past because it is not constitutional. He said, "It does not help the patients. It only helps the providers."

While Alvarado has long called this bill his "white whale" -- and it looks like he's finally about to harpoon it -- he said in an interview that it's final passage wouldn't mean he is finished with his quest for tort reform in Kentucky. He said: "There's more coming. You know me."

Alvarado is also sponsoring another bill, Senate Bill 18, that would prevent medical peer reviews from being used as evidence in malpractice cases. It passed out of the House Judiciary Committee March 1.

Nursing homes say Ky. has highest malpractice insurance costs and needs lawsuit review panels to keep providers and facilities

By Melissa Patrick
Kentucky Health News

The state's nursing-home lobby is renewing its effort to get legislative insulation from lawsuits, a prospect that could improve if Republicans control the state House after Tuesday's election.

Kentucky needs medical liability reform to stay competitive with its surrounding states, all of which have enacted some form of it, representatives of the Kentucky Association of Health Care Facilities told a legislative committee.

"It makes us not a friendly state to operate long-term care services," Betsy Johnson, president of the association, said at the Nov. 2 meeting of the Interim Joint Committee on Health and Welfare, held during the association's annual meeting in Louisville. "Providers are leaving Kentucky and new companies will not even consider locating in our commonwealth because of the high cost of health-care liability."

Kentucky has at least one nursing home in every county, with a total of 281 nursing homes and 88 personal care homes. Combined, these facilities care for over 36,000 people, provide over 30,000 jobs and provide $200 million in state and local taxes, the group said.

Graphic Aon 2015 Long Term Care report

Citing a recent study, Johnson said Kentucky's long-term care providers are paying $9,350 per bed in liability insurance, the highest of any state. The study found Kentucky paid over $400,000 per claim in 2015, "the highest claims severity of all the states profiled in the Aon study," Johnson said. Aon Risk Solutions is a risk-management and insurance company.

Kentucky also had the highest loss rate of Medicaid dollars in the study, which means that "14.66 percent of Medicaid reimbursement dollars that facilities receive end up going back out to cover losses," Johnson said. "That is money that is not being used to provide care to the residents that we are committed to serving."

Aon said in a statement, "Kentucky's high cost of liability may be related to its lack of restrictions on tort actions. The state constitution prohibits limits on non-economic damages and there are no statutes concerning qualifications of expert witnesses, certificates of merit, pre-trial alternative dispute resolution or limits on attorney's fees."

For several years, nursing homes have been trying to get the legislature to require that medical-malpractice lawsuits be reviewed by a three-person panel to determine if a case has merit before the suit could proceed. Panel findings would be admissible in court, but not legally binding. The legislation has passed the Republican-led Senate, but has not been heard in the Democrat-led House.

Sen. Ralph Alvarado, R-Winchester, a physician, said after the meeting that he will likely introduce the bill again, pointing out that 43 other states have some sort of tort reform.

"The motivation for me to run for office to begin with was tort reform," he said. "It is kind of what has gotten me here. So this is the big white whale that I am chasing and if I harpoon it and I get voted out of office, I can leave with a smile on my face. So, I am really hoping to get this accomplished."

Another Senate bill, sponsored by Sen. Danny Carroll, R-Paducah, called the "truth in advertising" bill, would require advertisements of nursing-home inspection results to prominently include the date the deficiencies were found, the plan to correct them and whether they were corrected. It too passed the Senate, but was not heard in the House.

Such bills are opposed by the Kentucky Justice Association, formerly the Kentucky Academy of Trial Attorneys, a group comprised mainly of plaintiffs' lawyers.

Maresa Fawns, CEO of the group, said in an email, "Restrictions on free speech that inform the public of negligence aren’t in the public's interest. Neither is restricting the rights of individuals and businesses to seek redress in the courts. Both are protected by our constitution. The heart of the matter is that less negligence through higher standards will result in fewer lawsuits. An ounce of prevention is worth a pound of cure and the solution is better staffing, better care, and less harm to our seniors."

Medicaid approval delays

Johnson also said the association is working with the Cabinet for Health and Family Services and its Department of Community Based Services to get nursing-home patients approved for Medicaid more quickly. If a person hasn't already qualified for Medicaid, they can't apply for it until they have been admitted and because Medicaid will not pay for services until a resident has completed a 30-day stay, they will not process the application until the 31st day, she said in an e-mail. In addition, she added that it is "extremely difficult" to discharge a patient from a nursing home for "any reason, including non-payment" without an appropriate and safe discharge plan. The group said application approvals often take more than 90 days, with some taking more than a year.

As a result, nursing homes are caring for patients without being paid. This has amounted to an average balance of $170,093 per facility in September of 2016, according to a KAHCF survey for cases over 90 days. This problem is so bad that the survey found that a few facilities have stopped admitting Medicaid patients altogether and many more are considering it, Johnson said. The problem escalated in 2014 as a result of legislation that shifted the workflow to a centralized system, instead of the local DCBS offices, though that issue has recently been rectified, Johnson said.

Beshear to study nursing-home staffing minimums, suggests homes' high liability costs are related to poorly ranked care

Responding to a letter from Kentuckians for Nursing Home Reform, which cited a low ranking for the state's nursing homes, Gov. Steve Beshear said he is "committed to taking steps toward improving the quality of care in Kentucky nursing homes," Valarie Honeycutt Spears reports for the Lexington Herald-Leader.

Beshear said he would call for forums across the state to allow the public and nursing-home residents to discuss their ideas for improvement, and would research the impacts of increased staffing in nursing homes. The reform group wants minimum staffing requirements, which the nursing-home industry opposes.

"I take this challenge very seriously and will be working with my staff and the state's Elder Abuse Committee over the coming months to explore ways in which we can improve the quality of care," the governor said in a Nov. 5 letter to Bernie Vonderheide, founder of the nursing-home reform group.

Vonderheide wrote Beshear in August after Kentucky was ranked 40th in nursing-home care by Families for Better Care, a Florida-based advocacy group for nursing-home residents. On a grade scale of A to F, the group gave Kentucky a D. The grade was determined by analyzing eight federal measures of nursing home quality, according to the group's release.

Beshear suggested in his letter that the low ranking of Kentucky's nursing homes might be related to another of their lobbying concerns — liability costs that are well above national norms. The homes want to limit those costs by subjecting lawsuits against them to medical review panels, which couldn't block the suits but would give the homes leverage in settlement negotiations.

The governor said "a trend emerges" when the low ranking is matched with an actuarial report showing that a typical 100-bed nursing home in Kentucky has annual liability costs of $535,000, while the national average is $154,000. Kentucky was among the states with high liability costs that received a below average or failing grade on the Families for Better Care report, Beshear noted.

Vonderheide said the letter marked "the first time . . . that a Kentucky governor has embraced nursing home staffing standards." Actually, as Spears reports, Beshear "said he would ask program leaders from the Cabinet for Health and Family Services to research the impact that increasing nursing home staffing could have in Kentucky." (Read more)

The Herald-Leader said in an editorial on the issue, "Listening, exploring, collecting information and ideas must lead — quickly — to action."

Bill to shield nursing homes from lawsuits clears Senate along party lines; not looking healthy in House despite TV, radio ads

Last week the state Senate approved on party lines a bill that would make lawsuits against nursing homes go through a review panel first. Republicans supported the bill and Democrats voted against it in a 23-12 vote that marked the clearest partisan split in the Senate in this year's legislative session.

Senate Bill 9 would create medical review panels of three physicians and an attorney moderator to hear complaints against long-term care facilities and vote on whether the suit had enough merit to go to court.  The bill's sponsor, Senate Health and Welfare Chairwoman Julie Denton, R-Louisville, declind to answer an opposign senator's questions about the bill. She said in introducing it that the panel would be advisory but its opinion would be admissible in court and would curb such lawsuits, reports Jack Brammer of the Lexington Herald-Leader.

Bills like this have failed in years past and could have diverse implications for Kentucky communities and nursing homes. At least one Kentucky newspaper looked around and found that lawsuits are one reason Extendicare Health Services Inc. shed management responsibilities last year for all 21 of its facilities in Kentucky, reports Nick Tabor of the Kentucky New Era in Hopkinsville.

Without Extendicare management in Western Kentucky, the volume of nursing-home lawsuits in the region appears to be shrinking, Tabor reports. In recent years, nearly all the Christian County cases that have been closed were dismissed through settlements, not by judges declaring them unfounded. This suggests the bill would minimally affect the county, writes Tabor. Other Kentucky communities may be affected differently; judges differ from circuit to circuit.

Although the bill passed the Senate, it appears to be on its deathbed in the House. Rep. Tom Burch, D-Louisville, who chairs the House Health and Welfare Committee, joked about its prospects to Tabor: “I can’t make any predictions about the bill this time, but I’ve called in three priests to have the last rites ready.” If nursing homes received this new layer of protection, he said, hospitals and day-care centers would want it too.

A similar bill died in Burch's committee last year; this version is being supported by television and radio commercials urging viewers and listeners to call their legislators in support. When Extendicare announced last spring it was transferring management of all its Kentucky facilities to a Texas company, it cited Kentucky’s “worsening litigation environment” and said tort reform seemed unlikely here.

Bernie Vonderheide, director of Kentuckians for Nursing Home Reform, said most so-called “frivolous” lawsuits would cease if the state imposed minimum staffing requirements on nursing homes, his group's main legislative goal. (Read more)

Nursing home chain says it will lease its Kentucky facilities because legislature didn't pass bill to filter lawsuits

A major nursing-home chain says it will lease all of its Kentucky properties to a Texas company because a bill to insulate nursing homes from lawsuits did not pass the General Assembly this year,

Extendicare Health Services owns Pembroke Nursing and Rehabilitation Center, Shady Lawn Nursing Home in Cadiz and 19 other facilities in Kentucky, reports Nick Tabor of the Kentucky New Era in Hopkinsville. The company has been riddled with problems. A 2009 study ranked three of its Kentucky facilities among the country's worst nursing homes.

"The combination of a worsening litigation environment and the lack of any likelihood of tort reform in the state of Kentucky has made this the prudent decision for our company and its unitholders," said Tim Lukenda, president and CEO of Extendicare.

In this year's legislative session, nursing homes lobbied for a law that would have created medical review panels to evaluate potential lawsuits against nursing homes, personal-care homes and some facilities for the intellectually and developmentally disabled. The goal of the panel was to help eliminate frivolous lawsuits against the long-term care industry.

The Pembroke facility has been sued 20 times in Christian Circuit Court since 2002, and seven of the suits are still pending, Tabor reports. The others were dismissed, most with confidential settlements. (Read more)