Health Justice & Health Injustice: A 2022 Legislative Recap

Legislative sessions held during even years in Kentucky always last a little longer, and are certainly longer than their misleading label of “60-days”.To be fair, impacting or creating new law and policy, while balancing an entire state’s biennial budget is not a simple feat, so “60-days” seems meager considering  the amount of work that needs to be done to manage a state and support its people.

Much of the attention placed on the 2022 Kentucky General Assembly’s efforts this year encompassed limiting or removing access to safety net programs supporting Kentuckians’ basic needs like healthcare, education, the ability to afford groceries, and overall access to opportunity and wealth. However, there were tremendous benchmarks achieved, some stemming from years of work by community and policy advocacy partners, and overall, this was another big year for mental health policy in the Commonwealth. The majority of legislation passed during the 2022 Regular Session went into effect on July 14th, unless otherwise determined by specific dates in the law or if the bill title included an emergency clause, meaning it was effective immediately upon becoming law. We’ll take a look at a few of these overall achievements from 2022, a handful of pitfalls, and what it all means to everyday Kentuckians’ ability to thrive.

WINS FOR MENTAL & BEHAVIORAL HEALTH

Student Mental Health Days

HB44, sponsored by Rep. Bobby McCool (HD97), requires schools recognize mental and behavioral health as an additional reason for excused student absences. 

What does this really mean? According to the Kentucky Student Voice Team’s May 2020 Coping with COVID survey, drawing 9,475 student responses from 573 Kentucky middle and high schools, nearly 1 in 6 students identified their mental health as a primary concern. Prior to the COVID-19 pandemic, there was already a need to acknowledge student mental health more affirmatively, and in study after study, it becomes only more transparent that the need has only been exacerbated over the last three years. 

Mental healthcare is healthcare and should be treated as such.
According to the Substance Abuse and Mental Health Services Administration’s (SAMHSA) 2019 behavioral health barometer, Kentucky’s rankings continue to be compelling and alarming. Half of Kentucky’s children aged 12-17 (approx. 19K kids) who experienced a major depressive episode have also received continued depression care. This is higher than the regional averages of 40.2% and the national average of 41.8%.

Affording Kentucky students latitude in claiming a mental health day as an excused absence will certainly not fix or repair a widespread lack of behavioral health support, but it is a pragmatic start, and in fact stems from the voices of Kentucky highschoolers directly – they are telling us exactly how we can help support them – and that is why HB44 was overwhelmingly supported by nearly every legislator in the Kentucky General Assembly.

Support for Kentuckians facing Severe Mental Illness (SMI)
HB127, sponsored by Rep. Ken Fleming (HD48), adjusts what is known in Kentucky state law as “Tim’s Law” and was co-sponsored by several other legislators, including those who were members of the 2021 Severe Mental Illness (SMI) Task Force. This bill expands the “Tim’s Law” process to more Kentuckians facing SMI and aligned some technical timing issues.

What does this really mean? “Tim’s Law” allows for assisted outpatient treatment (AOT), an evidence-based treatment for serious mental illness, by which a court orders a patient to follow a treatment plan while living in the community instead of a residential treatment facility or psychiatric hospital. This is a petition-initiated process and offers a much more comprehensive method of treatment when individuals facing SMI and (loving/concerned) family and friends feel they are in a vicious cycle of incarceration and/or hospitalization, never really addressing the root of the issue.

Among the Kentuckians already served by Tim’s Law, most are between the ages of 26 and 44 years old and the top three diagnoses have been schizophrenia (63.2%), secondary substance use disorder (21.1%), and  bipolar disorder (15.8%). One third report experiencing trauma or violence in their lifetime. SAMHSA knows and supports effective treatment methods, including AOT, that ultimately allows individuals facing SMI to live healthy, fulfilling lives. SMI is not a choice, character flaw, or weakness. HB127 strengthens Tim’s Law and helps Kentucky inch closer to breaking the stigmas surrounding diagnosis and treatment of Severe Mental Illness.

Severe Mental Illness Medicaid Waiver
SJR72, sponsored by Sen. Ralph Alvarado (SD28), directs the Cabinet for Health and Family Services to apply for a Medicaid waiver targeting individuals with Severe Mental Illness (SMI) to provide for supported housing, including respite care, and supported employment. This measure is broadly reflective of recommendation #1 from the 2021 Severe Mental Illness Task Force’s overall recommendations. While not explicit in the language of this joint resolution, Kentucky should seek a 1915(c) waiver to create a permanent program with the necessary services and supports for people with SMI.

In a 6-month period last year, a wide range of stakeholders and experts presented testimony for legislators to consider, including Dr. Sheila Schuster, KVH Board Chair and Executive Director of the Advocacy Action Network. Steve Shannon with the Kentucky Association of Regional Programs (KARP, Inc.), who represents Kentucky’s community mental health centers (CMHCs) joined Dr. Schuster multiple times for testimony, along with many consumers and family members to help “put a face” on the issues.

Here is a summary of the full SMI Task Force recommendations:

• Direct the Cabinet for Health and Family Services (CHFS) to apply for a Medicaid waiver for Kentucky’s SMI population that supports housing, including medical respite care and supported employment.
• Fund and expand the use of Tim’s Law in assisted outpatient treatment to all community mental health centers (CMHCs) in Kentucky.
• Amend current state law to expand the class of individuals that can access outpatient treatment related to Tim’s Law.
• Direct the Department for Medicaid Services to make permanant the suspension of prior authorizations for behavioral health services, and targeted case management in particular. DMS is also directed to require Medicaid Managed Care Organizations to cover long-term prescription costs.
• Establish and fund mental health courts across Kentucky, in order to expand the courts’ mission and allow more Kentucky courts to participate.
• Clarify in statute due process issues over individuals being “evaluated” and “examined” to help both the individual seeking care, as well as the mental health professional certifying findings and providing care.
• Fund mobile health clinics to eliminate the barriers of stigma and lack of access to transportation, providing both physical and mental health services to disenfranchised and underserved Kentuckians.
• Direct CHFS to expand certified community behavioral health clinic designation to all 14 CMHCs in order to provide integrated mental health, substance use, and physical health services to all Kentuckians, including those with SMI, addictions, for children and so forth.
• Direct CHFS to assist in-state psychiatric primary care physician training programs where sufficient to meet individual needs, and to create a contracting ability for the Cabinet where training is insufficient.
• Require all mental health professional licensure boards to either enter into an interstate compact or to ease reciprocity procedures so as to increase the mental health workforce in Kentucky.

The breadth and strength of the SMI Task Force’s recommendations were significant, and the hard work of everyone who offered stories, information, and insight was apparent. The fact that prompt legislative actions were taken in the 2022 session speaks volumes to the commitment to mental health-forward policymaking throughout the Kentucky General Assembly. KVH plans to stay engaged with the Cabinet to ensure they pursue the best possible SMI Waiver to help all Kentuckians facing SMI.

WINS FOR IMPROVED HEALTHCARE & ACCESS TO CARE

Practical & Modern Telehealth Improvements
HB188, sponsored by Rep. Jim DuPlessis (HD25) creates a practical flexibility to Kentucky’s telehealth laws, allowing Kentuckians and Kentucky providers who may be temporarily out of state (travel, college, conferences, family events, etc.) to be able to use the same telehealth services.

What does this really mean? During the pandemic and as passed into law during the 2021 Session, telehealth became a mainstay in thousands of Kentuckians’ lives in how they access the care they need. However, without HB188’s provisions in place, individuals were required to physically be in Kentucky in order to utilize telehealth services. In an era where technology is advancing at a tremendous pace, we must adjust our view occasionally to apply necessary logic. If you are on vacation, or attending a camp, school, or simply traveling for whatever reason, telehealth no longer limits us to being physically in the same town or city that the doctors and primary care providers we know and trust practice. So instead of visiting an urgent care clinic, emergency room, or simply panicking because you forgot your routine medications at home, a quick and easy telehealth appointment can accommodate the thousands of Kentuckians who utilize it, even if you are temporarily out of the state.

This measure brings a two-fer of positive impact in how Kentuckians access the care they need – it both provides peace of mind in reaching their known and trusted provider(s) in a moment of need, and it will also be a huge cost saver since out-of-state, and thus, typically out-of-network providers can be avoided if a telehealth appointment can be used instead.

Lung Cancer Screening & Prevention
HB219, sponsored by Chair of the Health & Family Services Committee Rep. Kim Moser (HD64), establishes a Kentucky Lung Cancer Screening and Prevention Program, which will be administered by the Kentucky Department for Public Health. HB219 also establishes a lung cancer screening fund and a Lung Cancer Screening Advisory Committee.

What does this really mean? This measure is very similar to Kentucky’s Colon Cancer Screening model, as both share the goal to reduce cancer deaths through prevention and early detection. Early detection of lung cancer improves both treatment and survival rates, and this bill creates the restricted fund and additional regulatory oversight necessary to significantly change the trajectory of Kentucky’s poor lung cancer mortality rates.

Kentucky currently has the highest incidence rate of lung cancer in the U.S. and consistently ranks at the top of the list in lung cancer deaths. HB219 will increase lung cancer screenings, reduce the state’s morbidity and mortality from lung cancer, reduce the costs associated with treatment and raise public awareness regarding the benefits of screening.

Charitable Third Party Assistance for Healthcare Costs
HB317, sponsored by Chair Moser (HD64), is a “fix” to legislation passed in the 2021 Session. HB317 reinstates nonprofit and foundational institutions to cover healthcare costs for Kentuckians as a third party.

What does this really mean? Prior to January 1, 2022, longstanding charitable organizations such as the American Kidney Fund, the Andy & JJ Dalton Foundation, and Catholic Charities of Kentucky (among many, many others), have been able to cover costly medical bills for Kentuckians in need, whether they were uninsured, underinsured, or simply facing astronomical out-of-pocket medical bills. Due to an oversight in the 2021 Session, legislation was passed that restricted these charitable third parties from continuing to support Kentuckians in need. HB317 fixes that error in the interpretation of the 2021 law and allows these types of institutions to continue paying healthcare costs on behalf of Kentuckians.

The average cost of giving birth in Kentucky is $12,443, for inpatient hospital expenses per day it’s $2,303, and for treatment of a heart attack it’s projected at $22,922.Although these more isolated expenses average slightly lower than the national averages, for most Kentuckians, they are simply unaffordable. When considering chronic care management, such as dialysis, ongoing cancer treatments, and so forth, the cost of healthcare in this country can be astronomical and financially devastating. Allowing charitable third-parties to assist in covering these costs should not be the solution, per se, but it should absolutely remain a tool in the toolbox for the thousands of Kentuckians who need financial support in order to receive life-saving care.

Medicaid Reimbursement for Certified Community Health Workers
HB525, sponsored by Chair Moser (HD64) is a bill that has been a work in progress for many years and requires Kentucky’s Medicaid program to reimburse Certified Community Health Workers (CCHW) for many services. 

What does this really mean? HB525 will have the effect of expanding the CCHW network through a new sustainable funding source, meaning more Kentuckians will have access to a local CCHW. Community Health Workers assist in navigating the complex and fragmented healthcare system we all face, helping Kentuckians access needed care, address basic needs like transportation or food assistance, tackle ongoing health disparities, and improve our overall health as a state. Not everyone is comfortable advocating for themselves when speaking to providers or nurses, or maybe they don’t know how to advocate for themselves. Community Health Workers can be the advocates thousands of Kentuckians need. In this recent blog by Community Catalyst, the work of CCHWs in bridging the gaps for individuals and families is more intimately described, as well as the process that unfolded in order for HB525 to become a reality this year.

The Kentucky Homeplace study performed between 2001 and 2021 found that CHWs helped achieve a return on investment of $11.34 saved for every $1 invested in their services. And what’s more is that in 2020, Kentucky Homeplace found emergency room visits were reduced by 10%, non-emergency ER visits by 13%, inpatient admissions by 23%, and the total number of days in the hospital by 27% – all thanks to the integration and empowerment of CHWs. More Certified CHWs throughout the Commonwealth means more strides made to address health disparities for all Kentuckians. They are the ultimate “trusted messenger” and HB525 is a game-changing pathway to embracing their abilities for the betterment of all.

Additionally, our healthcare workforce prior to the COVID-19 pandemic faced grueling circumstances and we all know the tribulations our healthcare heroes faced in 2020 and now. There continues to be a nursing and healthcare worker shortage. HB525 is  engineered to be a part of the response and solution to this workforce crisis, by partnering with the Kentucky Community and Technical School System (KCTCS) to streamline higher education for those interested in becoming  Certified Community Health Workers. 

What Now? Kentucky Voices for Health and its partner organizations will continue working closely with the Cabinet for Health & Family Services to develop a strong implementation plan for HB525’s full implementation in January 2023. This includes advocating for reliable, sustainable state funding via a Medicaid State Plan Amendment (SPA). KVH will also work to clarify the exact list of services reimbursable to CCHWs by our Medicaid Managed Care Organizations, as well as the new requirements CCHWs will be asked to adhere to for certification compliance. We anticipate the Cabinet will issue formal guidance by late summer or early fall which should provide organizations and CCHWs time to prepare for the change. The next step will be spreading the word so that more Medicaid healthcare providers are incentivized to hire CCHWs as part of their team.

Postpartum Medicaid Coverage Up To 12-Months

Initially championed this year in HB174 sponsored by Rep. McKenzie Cantrell (HD38), the language to extend Medicaid postpartum coverage for up to 12-months was added as an amendment to SB178, sponsored by Sen. Julie Raque Adams (SD36). Extending coverage for Medicaid-eligible birthing people is overdue, and the realization of previous policy efforts, as Kentucky joins 18 other states in fully implementing the extension of 12-months for postpartum coverage in Medicaid.

To help improve maternal health and coverage stability and address racial disparities in maternal health, a provision in the American Rescue Plan Act of 2021 gave states a new option to extend Medicaid postpartum coverage to 12-months via a state plan amendment (SPA). Prior to the adoption of SB178, Kentucky’s Medicaid postpartum coverage only lasted for 60-days for individuals between 139%-200% of the Federal Poverty Level (FPL), which is grossly inadequate in meeting a parent’s postpartum needs. In May, CMS formally approved Kentucky’s SPA amendment, citing how the provision will help a minimum 10,000 Kentucky mothers instantly. Maintaining continuous healthcare coverage is critical to one’s overall health, and is especially necessary in the year following a birth. More healthy moms means more healthy babies.

***SB178 also included provisions instructing the Board of Alcohol & Drug Counselors (ADCs) to retroactively grant credentials to those who were supervisors of ADCs & a full year to comply with new requirements. SB178 also allows licensed narcotic treatment programs to use buprenorphine to treat substance-use disorder, and SB178 requires the Finance & Administration Cabinet to contract with an independent entity to monitor all Public Employee Health Insurance Program pharmacy benefit claims.

KENTUCKY’S SAFETY NET & THE PUBLIC HEALTH EMERGENCY

Kentucky’s COVID-19 Public Health State of Emergency, Pt. 1
SB25, sponsored by Sen. Max Wise (SD16), quickly became priority legislation in the early days of the 2022 Regular Session. SB25 initially began as legislation to assist school districts by expanding the number of their non-traditional instruction (NTI) days – a much needed support as our communities still maneuver the COVID-19 pandemic. However, SB25 quickly became an important vehicle to extend the state’s overall public health emergency to April 14, 2022 in response to COVID-19.

What does this really mean? Following the Kentucky Supreme Court’s opinion rendered on August 21, 2021, HB1, SB1, SB2, and HJR77 from the 2021 Regular Session immediately became effective and an urgent need for a Special Session arose since much of the decision-making power regarding the COVID 19 emergency shifted from the Executive Branch to the Legislative Branch. This meant that any executive order established in response to COVID-19 by the Governor or Executive Branch, including any directives or guidance, were at risk of being lifted without legislative action. All Cabinet administrative regulations and directives dependent on executive authority that were issued as a part of Kentucky’s COVID-19 emergency declaration were also immediately impacted.

During the September 2021 Special Session, Kentucky’s public health state of emergency was extended until January 15, 2022, at which point another extension would need to be approved by the legislature, or, the public health emergency would then expire. The 2022 Regular Session convened on January 4, 2022,  so addressing the January 15th deadline was well within the timeframe of the legislature’s regular meeting. Had the legislature failed to pass SB25, both SNAP Emergency Allotments and the ability of out-of-state healthcare workers to continue working under COVID-19 emergency flexibilities would have immediately ended in January 2022. At the time of its adoption, SB25 was considered a swift and necessary action to protect the health of all Kentuckians, our workforce, our children’s education, and a way to meet  the complex needs of Kentuckians during a difficult time.

Kentucky’s COVID-19 Public Health State of Emergency, Pt. 2
SJR150, sponsored by Sen. Donald Douglas (SD22), reversed provisions of SB25 and ended Kentucky’s COVID-19 public health emergency (PHE) on March 7th, 2022.

What does this really mean? Although SJR150 was initially stalled, it rapidly began to move and unfortunately, immediately became law after the legislature overrode the Governor’s veto. This effort was exactly opposite of  legislators’ commitment in SB25 several weeks prior, which extended our state PHE through to at least April 14th, 2022. Not extending the state’s PHE to align with the federal PHE also prevented Kentuckians from receiving some benefits, like accessing SNAP Emergency Allotments, (EAs).

SNAP EAs allow for the lowest income households to receive additional benefits where previously they had not been receiving the maximum amount of food and grocery assistance. However, without both a state PHE declaration alongside the federal PHE, the passage of SJR150 meant that after the month of April, Kentuckians and every local economy in Kentucky would see an average of more than $52 MILLION PER MONTH in food assistance cease immediately. The current federal policy requires states to request a final “offloading” month of benefits, which, for Kentuckians, was April. Beginning in May, although the legislature had the authority to continue them, these extra grocery dollars for thousands for Kentucky families evaporated, harming children, working families and the elderly. The financial losses projected at the time have proven unfortunately true. Local economies, farmers, grocers, and the Kentuckians served by SNAP are missing out on at least $350 million, perhaps more, due to SJR150 prematurely ending the state’s PHE. With over half of Kentucky’s counties showing food insecurity rates over 20%, and inflation continuing to drive up costs, including those for groceries, many Kentucky families are facing difficult decisions between food and medicine. As usual, families are the ones who pay the price of these policies the most, andthe hunger cliff created by SJR150, that so many families fell off of in May, has been devastating to their ability to put food on their tables for their children.

Additionally, under the state’s PHE, hundreds of out-of-state healthcare workers, as well as other licensed professionals in Kentucky, not only had the flexibility to continue working to support our overwhelmed and understaffed healthcare system, but also the flexibility to telework, extend permitting policies and so on. Ending the state’s PHE had more than just a direct impact on our Commonwealth’s nursing and healthcare worker shortage. It affected everything from healthcare professionals’ flexibility to deliver care without administrative barriers… to waste management and master logger permit extensions… to long-term care administrators continuing education terms… to marriage and family therapists and licensed diabetes educators’ ability to telework… and much more — all of these licensed professionals’ flexibilities afforded to them under the state PHE ceased and had to be manually accommodated board by board. At a time when the pressure is on and many professions are struggling to attract newcomers or simply convince longstanding employees to stay, making their jobs more difficult with extra paperwork seems callous and counterproductive.

Since the legislature successfully removed the ability for the Governor to issue such emergency declarations on his own specific to the COVID-19 pandemic, the negative effects of these situations lie wholly at the feet of the legislature.

Fractures in Kentucky’s Safety Net
HB7, sponsored by Speaker Pro-tem David Meade (HD80), is a significant adjustment to Kentucky’s safety net, changing many reporting requirements, eligibility standards, and restricting the Cabinet’s ability to manage certain programs.

What’s changing based on the version of HB7 that is now law?

• Waivers for SNAP work reporting requirements are more limited but can be requested if unemployment goes >10% or a county’s job availability meets the federal “impossibility standard”.
• CHFS will only be allowed to use self-attestation as a last resort when determining eligibility.
• CHFS must now consider fluctuating income to ensure more accurate eligibility determinations.
• Kentuckians can no longer apply for Medicaid Presumptive Eligibility online or through DMS.
• DMS will be required to develop a Medicaid community engagement program.
• Establishes new and more severe penalties for suspected fraud or misuse of benefits that don’t currently have to be substantiated. CHFS will have the option of enforcing these penalties.
• Studies will be conducted on using a single EBT card & presumptive eligibility.
• A Benefits Cliff Task Force has been formed and is meeting during the 2022 Interim Session.
• DMS must develop a proposal to create a benefits cliff calculator and job posting database.
• Workforce Cabinet must establish a voluntary job placement assistance program for Medicaid enrollees ages 18 through 59.  

What stays the same?

• Broad Based Categorical Eligibility (BBCE) remains in place without asset testing.
• SNAP change reporting requirements stay the same.
• CHFS will be allowed (not required) to assign SNAP participants who must meet work requirements to participate in an Employment & Training program.
• CHFS will have a full 12 months (instead of only 60 days) to complete Medicaid redeterminations following the end of the Public Health Emergency.
• Hospitals will not be subject to penalties related to Medicaid Presumptive Eligibility (PE) applications.

What’s this really mean? Although the Governor vetoed HB7 in full, the legislature overrode his veto on April 13th, and the bill was enrolled directly with the Secretary of State the following day to become law. HB7 was significantly improved in its final hours before passage, however, the bill still adds more red tape and administrative barriers for thousands of eligible, hardworking Kentuckians trying to access Medicaid, SNAP and other public assistance programs in order to care for their families and make ends meet. A weaker safety net creates long-lasting social and economic consequences for all of our communities, and HB7 does nothing to create living-wage jobs, improve health outcomes or reduce healthcare disparities.

The implementation timeline for HB7 is unique. Some provisions went into effect last week, some will not go into effect for several more weeks or months. Here are the dates you should know on when these changes go into effect:

July 14, 2022

• Waivers for SNAP work reporting requirements will be removed
• Self-attestation will only be used as a last resort when determining eligibility
• Fluctuating income will be considered to ensure more accurate eligibility determinations
• New and more severe penalties for suspected fraud or misuse of benefits will be enforced
• DMS will no longer determine PE eligibility and the online PE application will be removed

July 2022: Establishment of Benefits Cliff Task Force

September 1, 2022: Benefits cliff calculator and job posting database proposals

December 1, 2022: Study on using a single EBT card

January 1, 2023: Voluntary job placement assistance program will be established

April 15, 2023: Medicaid community engagement program will be developed

June 30, 2023: DMS will report to the LRC on presumptive eligibility determinations 

HB7 creates barriers to benefits that will hurt the vast majority of Kentucky families and low-wage workers who are doing all the right things. Adding excessive paperwork, verification requirements, and red tape for both families and our hospitals by requiring more frequent and burdensome reporting to the state will only slow the process down for everyone involved. KVH and ally advocates will be monitoring the proceedings of the newly established Benefits Cliff Task Force closely, and participating any way possible so the voices of real Kentuckians are heard. Mark your calendars! The 2022 Interim meeting schedule is available and where you can keep track of when meetings of the Task Force are called.

Immediate Results Rarely Reflect the “Big Picture”

Many of these bills and others were a part of our 2022 KVH Health Justice Bill Tracker. They certainly do not reflect all the health-centered policy passed into law this year, nor do they represent all the opportunities the legislature had to move legislation forward that would benefit the health and wellbeing of all Kentuckians. New laws reinforcing policy “wins” for mental and behavioral health, as well as improving Kentuckians access to, and quality of, care stem from long overdue health equity measures and are important steps that build on the principles of the Affordable Care Act (ACA). Unfortunately, ending the state’s PHE prematurely and applying harsh new standards to Kentuckians utilizing safety net programs are troublesome outcomes from this year’s Session.

Healthcare is a human right. Although there continue to be too many injustices and bureaucratic obstacles preventing Kentuckians from achieving their optimal wellness, democracy is never a “one and done”. We will continue the work and advocate for policies that make healthcare accessible and affordable for every Kentuckian, especially as we dig into the 2022 legislative interim, attend meetings of the Benefits Cliff Task Force, and prepare for the 2023 Regular Session. 

Thank you for your advocacy! Hat tip to every phone call, letter, zoom meeting, remote or in-person testimony, virtual or in-person rally, or email that helped advocacy prevail for these 2022 health justice measures, and all those who stood strong against health injustice measures aimed at harming Kentucky families.

To learn more about the author, visit: https://kyvoicesforhealth.org/our-team/.