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.

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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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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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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)

Judge rails against state's handling of child-abuse records, Beshear's defense of cabinet

The judge who handled the case of 9-year-old Amy Dye, who was beaten to death last year by her adoptive brother, sent an op-ed piece to several newspapers criticizing Gov. Steve Beshear's move to back the Cabinet for Health and Family Services in its battle to prevent full disclosure of child-abuse death records.

"The publicity surrounding recent tragic deaths of children in Kentucky, and the now public shenanigans of the cabinet — caught lying about what it knew and when it knew it — have triggered a rare public anger," writes Circuit Judge Tyler Gill, left. "Openness should always be the rule where government is involved."

The Lexington Herald-Leader and The Courier-Journal sued the cabinet last year to obtain records about children who died from abuse or neglect. Though Franklin Circuit Judge Phillip Shepherd ruled in three cases that files should be released, the cabinet long refused to do so. "Shepherd said that in cases of children killed or badly hurt, the public has a legitimate, overriding interest in access to information that could show how the cabinet performed its job of protecting children," reports Bill Estep for the Herald-Leader.

In an order issued Jan. 19, Shepherd ruled the cabinet could omit very limited information, including the names of children who are hurt but don't die and the names of people, such as teachers, who report suspected abuse. The cabinet has appealed, saying it should be allowed to redact more information than that. Since Shepherd's ruling, the cabinet has released the internal reviews of 85 cases in which children were hurt or died in 2009 and 2010, along with extensive case files — though it has redacted information it sees fit on all of the documents.

Gill rails against the cabinet's appeal. "Do not be misled," he writes. "The cabinet's appeal of the Franklin Circuit Court ruling is not a high-minded effort to protect the privacy of persons who report child abuse. It is to protect the cabinet."

Kerri Richardson, spokeswoman for Beshear, said Gill is wrong about the cabinet's motivations. If it meant to protect itself, it would not have released hundreds of pages of records. "The cabinet is not just protecting those who report child abuse," she told Estep. "The cabinet is trying to protect innocent victims of abuse or neglect and the innocent families of victims of abuse or neglect."

But, given his handling of Amy Dye's case, Gill sees it differently. "The people of Todd County are painfully aware of the likelihood that a multitude of reports of suspected abuse were made by teachers and school officials about Amy Dye in the years before her death, several of which may have been mishandled or misplaced. I seriously doubt any of those who made reports would have allowed fear for their personal safety to keep them from speaking out. Their fear was for Amy," he writes. (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)

Cabinet files appeal to prevent releasing full child abuse records; Beshear backs decision

On the day the state was supposed to release unadulterated records on deaths and near deaths from child abuse, under a court order, it filed an appeal to stop the process. And though Gov. Steve Beshear had ordered the Cabinet for Health and Family Services to release the records, yesterday he sided with its officials, saying in an op-ed piece sent to Kentucky newspapers he did not "think the judge's order was protective enough" of informants who often want to remain secret, such as relatives, health-care providers, teachers and law-enforcement officials. (Getty Images photo)

“You teach in a small community and suspect a student is being abused,” Beshear wrote. “Can you come forward without the newspaper naming you as the accuser?" Jon Fleischaker, attorney for The Courier-Journal and the Kentucky Press Association, said Beshear was “fear-mongering,” and noted that Shepherd’s order to release records applies only in cases in which children were killed or nearly killed from abuse or neglect, following a state law designed to hold the cabinet accountable for its child protective services.

Beshear wrote, “The cabinet has been accused of 'operating under a veil of secrecy' in a supposed attempt to protect inept workers and a poorly designed system. But this is not about shielding the system from scrutiny. We understand the need to be more transparent than in years past.” In December, the cabinet handed over 353 pages of records, but the names of at least eight children who died from abuse or neglect had been redacted, along with all the names of children who had been seriously injured, as well as much other information. The Courier-Journal, the Lexington Herald-Leader and the Todd County Standard had sued the cabinet for refusing to release the records. Twice before, Franklin Circuit Judge Phillip Shepherd ordered the cabinet to turn them over. Last week, Shepherd fined the agency $16,000 for its secretive treatment and delays. He also found the cabinet should pay more than $57,000 in legal fees for the newspapers. (Read more)

Yesterday, the cabinet filed its motion with the state Court of Appeals and "asked the court to block Shepherd's Jan. 19 order to release records, starting today, with limited redactions," reports the C-J's Deborah Yetter. In the meantime, the cabinet released about 90 internal reviews of child deaths and serious injuries incurred by abuse but with deletions it feels is necessary "to protect the best interests of the state's child welfare system," its motion read. (Read more)

Federal agency is pressured to re-post online database of doctors' malpractice and disciplinary cases

U.S. Sen. Charles Grassley has joined journalists, academic researchers and consumer groups in calling on the Health Resources and Services Administration to put back online the National Practitioner Data Bank, a database of malpractice and disciplinary cases against doctors.

"In a strongly worded letter, the Iowa Republican, who has led investigations of fraud and waste in government health programs, said the now-removed file 'serves as the backbone in providing transparency for bad-acting health care professionals'," Duff Wilson of The New York Times reports. Grassley gave HRSA, part of the the Department of Health and Human Services, until Oct. 21 to hand over documents and answer a series of questions, ending with "What is your timeline for getting the database up and running again?"

For a PDF of Grassley's letter, click here. Under pressure, the agency has scheduled a conference call on the issue for Thursday, Oct. 13, from 1 to 2 p.m. Eastern Time.

The database "was created in 1986 for hospitals, medical boards, insurers and others to share information so that bad doctors do not slip through cracks in reporting," Wilson writes. The law makes doctors' names confidential, but the database has a Public Use File for researchers and journalists, in which doctors are identified only by numbers.

Some journalists have been able to identify doctors using information from other sources, such as lawsuits. "After a complaint by one doctor identified by The Kansas City Star, the agency threatened the newspaper reporter with a fine, pulled the doctor’s file from its Web site on Sept. 1 and began a review of how to hide the identities better," Wilson reports. "Its actions provoked protests" from the Association of Health Care Journalists, the Society of Professional Journalists, the Reporters Committee for Freedom of the Press and other groups. In a letter, they told HRSA, "Nothing in the Public Use File can be used to identify individuals if reporters or researchers don’t already know for whom they are searching."

Grassley wrote, "It seems disturbing and bizarre that HRSA would attempt to chill a reporter’s First Amendment activity with threats of fines for merely 'republishing' public information from one source and connecting it with public information from another. A journalist’s shoe-leather reporting is no justification for such threats or for HRSA to shut down public access to information that Congress intended to be public."

The Public Use File can be downloaded from the website of Investigative Reporters and Editors, one of the groups, protesting its removal from the HRSA site, but "that file will be more and more out-of-date as the dispute goes on," Wilson notes. She also reports that Robert E. Oshel, associate director for research and disputes in the Division of Practitioner Data Banks, says the agency is misinterpreting the law. (Read more)

Adair hospital board broke meetings law, attorney general finds

Adair County Hospital's board of directors was wrong to hold a closed-session discussion about the future of an interim CEO because the discussion was about his retention, not posible discipline or dismissal, the Kentucky attorney general's office found. It also concluded the hospital board did not have sufficient cause to discuss a report by Spectrum Health Partners in private.

Adair County Community Voice Publisher Sharon Barton submitted a written complaint to the board chairman March 30 alleging the violations. To remedy the matter, she asked for a copy of the PowerPoint presentation that had been viewed during the meeting as well as any minutes, notes, records and any other documents that had been reviewed.

The board replied that it was "clearly entitled to discuss this issue in executive session" because it was a personnel issue and so exempt from public discussion.

Assistant Attorney General Amye Bensenhaver disagreed, saying the personnel exemption applies only to discussions that might lead to the appointment, discipline or dismissal of an employee, member or student. "This exception shall not be interpreted to permit discussion of general personnel matters in secret," she wrote. "The board acknowledges that the closed session discussion focused on securing the continued employment of the interim CEO and not on reviewing the comparative qualifications of competing applicants for the purpose of identifying the best qualified applicant to fill a vacant position. Although the potential for reputational damage exists where several individuals apply for a position and some must be eliminated based on their lesser qualifications, such potential does not exist where the discussion relates to the continued employment of a current employee."

Bensenhaver also said the board should not have discussed the Spectrum report in closed session. The board was obligated to give notice "in regular open meeting ... of the general nature of the business to be discussed in closed session," she wrote. In correspondence, the board said that the report "contained information on specific individuals that might lead to discipline or dismissal" or might lead to litigation. "Even with this additional information, we believe the board's ... compliance fell short of the statutory requirements," Bensenhaver wrote.

U of L physician groups tied to Passport Health Plan must release salary and expense records, attorney general rules

Two groups representing University of Louisville's faculty physicians have been deemed public agencies and are subject to open records laws, Kentucky Attorney General Jack Conway has ruled. The groups therefore violated the Kentucky Open Records Act when they denied a request by The Courier-Journal's Tom Loftus for five years' worth of records showing employee salaries, sources of income and expenses. U of L doctors have a majority on the board of Passport Health Plan, which manages the Medicaid program for Jefferson and 15 surrounding counties.

The matter concerns the University Physicians Association and the University of Louisville Physicians. In December, Loftus requested the salary and expense documents after state Sen. Tim Shaughnessy of Louisville, right, asked the Kentucky Health and Family Services Cabinet to "examine the flow of Medicaid funds from the state through Passport to UPA," Loftus writes. State Auditor Crit Luallen did not look into the issue in her November report, which pointedly criticized Passport for excessive spending and conflicts of interest.

Though the physician groups contended they were non-profit corporations, Conway said UPA is a public agency "because it was established and created, and is controlled, by the University of Louisville School of Medicine," Conway concludes. "In all material respects, ULP mirrors UPA in the manner of its establishment, creation and control ... We are not prepared to casually dismiss these facts as 'coincidence born of practicality,' and instead find that ULP and the School of Medicine 'act as one and the same.'"

In its articles of incorporation, UPA says its mission is "to further the research mission and teaching of the praction of medicine at the University." Moreover, UPA and ULP were established and continue to be run by U of L medical school administrators, department chairs and professors. "We agree with The Courier-Journal that the suggestion that these physician administrators and/or professors, each the chair or interim chair of their respective medical school departments, came together of their own accord, and as private actors to establish and create UPA defies logic."

Shaughnessy was impressed with the findings. "It causes me to ask: How could they think they are not a public entity? What remains to be seen is whether the university accepts this ruling or continues its arguments that it is not subject to public openness." (Read more)

Passport Health Plan drops secrecy as managed care expands

Passport Health Plan, the managed-care organization for Medicaid in the Louisville area, announced today that it would no longer fight to keep its records secret, deciding not to appeal a ruling by Attorney General Jack Conway that it had to give records to The Courier-Journal because most of its money comes from the state.

Passport's interim CEO, Mark Carter, said in an article on the Louisville newspaper's op-ed page that the decision "was not based upon legal advice but was made as part of the continuing evolution, perhaps even transformation, of the plan." He said state Auditor Crit Luallen's scathing report on the plan "has served as a very beneficial wake-up call to our organization."

Today the state issued a request for proposals to expand Medicaid managed care to other parts of the state. Luallen told The C-J's Deborah Yetter, “I think if government is going to privatize services … we have to have a higher level of accountability, not a lower level of accountability.” (Read more)

States can't reveal drug costs because federal law makes them secret; Montana governor blames drug lobby, Ky. contractor

When Montana journalists asked Gov. Brian Schweitzer to reveal the prices the state pays for drugs in government health care programs, he said he wanted to tell them, but had to refuse because federal law keeps the information secret because Congress is "bought and paid for" by drug manufacturers. "Congress has created a system so that even the states, which buy tens of millions of dollars worth of these drugs, have no idea what we pay on a per-unit basis," said Schweitzer, a conservative Democrat with a maverick streak.

"Actually, Schweitzer does know what the state pays — but, before acquiring the information last summer, had to have his chief counsel sign a written agreement not to disclose it publicly," Mike Dennison of the Billings Gazette reports. "Schweitzer said the drug industry wants to keep secret the rebates it gives to states buying drugs for public programs, because it doesn't want regular retail customers to know how much more they're paying for drugs."

Schweitzer obtained the information last summer when he was trying to compare what the federal-state Medicaid program for the poor and disabled was paying for drugs compared to the cost in Canada. Montana news outlets argued that the state open-records law requires him to release "documents in his possession that list public money paid out or received by the state," Dennison reports. But the governor's chief legal counsel "said federal law bars disclosure of the information requested by the news organizations, and that federal law pre-empts Montana's open-records laws."

Also, "Magellan Medicaid Services, the Virginia-based contractor that negotiates additional drug rebates for the state Medicaid program, also claimed that the rebate information is a trade secret protected from public disclosure," Dennison reports. MMS, which works for several states including Kentucky, said revealing the information would hamper its ability to compete with other companies doing the work." It seems to us that if all such information from all states were released, that wouldn't be a problem.

Board for nursing-home administrators wants a law to let it issue secret admonitions; bill is in jeopardy

A bill that was introduced late and got a fast start, but has hit speed bumps and maybe a roadblock, would allow the Kentucky Board of Licensure for Nursing Home Administrators to admonish them in secret without the action being "considered a disciplinary action against the licensee."

The chairman of the board committee that recommended the bill said the alternative already exists, though not in law, and "would only be used for situations that were not serious enough to warrant action against an administrator's license," reports Valarie Honeycutt Spears of the Lexington Herald-Leader.

House Bill 414, which would make several other changes, was introduced Feb. 9 by Rep. Tom Burch, D-Louisville. On Feb. 14, he posted the bill for consideration by the Health and Welfare Committee, which he chairs, and got the House to waive the rule that bills be posted for three days before being considered. The next day, the committee approved the bill 14-0 and put it on the consent calendar, which is used to pass non-controverial bills without debate. It was posted for passage Feb. 18, but was removed from the consent calendar that day and has languished on the regular calendar since.

On. Feb. 22, Rep. Tim Moore, R-Elizabethtown, filed an amendment to the bill that could doom it. His is one of several measures that would require abortion clinics to give women face-to-face counseling and offer them an opportunity to see an ultrasound image of their unborn child. Because of that, "Burch said this week he did not think the bill would continue to move," Sepears reports. However, the contents of the bill could be revived as an amendment to another one.

Spears, who has done much reporting about problems in nursing homes, notes that the board minutes from Februrary 2010 referred to 29 complaints, one was from 2006 and the rest were from 2007 through 2010. Among the cases was a nursing home administrator who did not contact authorities when aides abused a resident, an administrator criminally charged with stealing prescription drugs and an administrator sentenced to 10 years in prison for theft and exploiting an adult. The bill does not specify what kind of infractions would result in private criticisms." (Read more)