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September 12 & 13, 2005
Cottontree Inn
Rawlins, Wyoming
Senator John Hanes, Co-Chairman
Representative Jack Landon, Co-Chairman
Senator Bruce Burns
Senator Ken Decaria (Sept. 13 only)
Senator Tony Ross
Senator Kathryn Sessions
Representative Ed Buchanan
Representative Tom Lubnau
Representative Monte Olsen
Representative Ann Robinson
Representative Stephen Watt
Representative Kevin White
Senator Ken Decaria (Sept. 12 only)
Representative Deb Alden
Representative George Bagby
John Rivera, Senior Staff Attorney
Please refer to
Appendix 1 to review the Committee Sign-in Sheet
for a list of other individuals who attended the meeting.
Chairman Hanes called the meeting to order at 8:30 a.m. The following sections summarize the Committee proceedings by topic. Please refer to Appendix 2 to review the Committee Meeting Agenda.
Minutes from the July, 2005 Committee meeting were approved. The spelling of Sheridan County Attorney Matt Redle's name was corrected on page 9 of the Minutes.
Ms. Brenda Lyttle thanked Representative Robinson for making a presentation at the first child support enforcement conference earlier this year. Ms. Lyttle presented 06LSO-0120.W2, child support-income withholding amendments. She explained that the amendments were presented as a money saving issue. Most employers abide by the income withholding notice, whether the notice is sent by certified, return receipt mail or by first class. If allowed to send the notice by first class mail, the Department of Family Services would save approximately $60,000 per year. The second change in the bill is intended to authorize a penalty if an employer does not comply with an income withholding order. Only about 5% of employers fail to comply with the income withholding notices. Committee members questioned how proof of service would be accomplished if notices to employers are mailed by first class mail and whether using a contempt of court proceeding may be more effective than providing a specific dollar amount in penalty for failure to comply. Ms. Lyttle will try to determine what the costs are to bring a contempt of court action. Representative Landon also requested Ms. Lyttle provide the actual number of non-complying employers. She advised that by enacting the Uniform Interstate Family Support Act last year, Wyoming is in compliance with the federal law. Some slight changes in the law next year may be necessary, depending on approval of a federal waiver request to waive placing social security numbers on game and fish applications.
Further action on the bill under consideration was laid back until the December meeting to allow Ms. Lyttle and staff to revise the bill as necessary to meet concerns expressed by the Committee.
Chairman Hanes briefly explained memoranda drafted by Kristin Siegel with respect to barriers to the sharing of juvenile records. He asked if the Committee wanted a bill drafted to allow the sharing of juvenile records by courts in the state. Representative Lubnau said W.S. 14-6-239 already allows courts to request juvenile records from other courts and wondered what more the Legislature could do to require courts to communicate with each other. Representative Landon advised that, at an NCSL seminar he attended, Washington state found that federal law was not that restrictive. Perception of the federal law was more restrictive than was the language of the law. Senator Ross was concerned that any existing federal restrictions would supercede state law and the Legislature would be walking into a mine field if it attempts to broaden authority to share records. He doesn't believe the issue requires any more study. Representative Buchanan does not believe the system is broken legislatively because the Department of Family Services already has authority to obtain juvenile records. Chairman Hanes concluded that there were no substantial impediments to the sharing of juvenile records, so the Committee would not take any further action on the issue.
Chairman Hanes reminded the Committee of the materials staff had sent with respect to Florida's law, known as Jessica's Law, and lists of states that provide for GPS tracking of sex offenders and for civil commitment of sex offenders, provided by NCLS. While the issue of sex offender penalties is not an approved topic for Committee consideration, it is an issue that has become increasingly important recently. Representative Lubnau stated this was an important issue in Campbell County in light of a recent abduction of a young girl, who was fortunately found the next day with only taser gun burns. He believes the letter sent to Committee members from Representatives Gingery and Hammonds has some positive suggestions the Committee should consider. Chairman Hanes stated the possible penalties could include GPS tracking or civil commitment of sex offenders.
Attorney General Pat Crank testified that the Governor is very interested in developing legislation for the next session. General Crank believes a bill should include a minimum mandatory life sentence after a second conviction. He sees no problem with that proposal, but acknowledged courts don't like minimum mandatory sentences for some offenses. He does not believe GPS tracking is a good solution, it would simply be more effective to lock up the dangerous sex offenders. He mentioned that the Wyoming Supreme Court has mentioned problems with the indecent liberties statute in Title 14. The Court's decisions still hold that statute constitutional, but the Court might become squeamish and find it unconstitutional if it is used as the basis for imposing a stiff minimum mandatory sentence. Another problem he identified was with the required hearing to determine the level of risk an offender poses. Some counties have a backlog in trying to hold the hearing, but for the most part the counties are doing as well as they can with the resources they have. In response to questions from the Committee, General Crank stated that the Department of Corrections or the Parole Board may have statistics on the use of ankle bracelets or house arrest and on the frequency of second arrests for sex offenses. He does not believe that requiring ankle bracelets as a condition of bail would be unconstitutional, if the Legislature tightens up the bail provisions.
Senator Burns advised he sponsored a bill, 05SF0135, in the last session to address the process of the sex offender registry hearings, but the bill died in the House. Senator Sessions suggested perhaps the Committee should consider resurrecting the bill for consideration.
Representative Landon stated that minimum mandatory sentences might just be a "feel-good" bill. He prefers resurrecting Senator Burns' bill on psychological evaluations of sex offenders. He also asked General Crank to develop suggestions to address the Supreme Court's concerns with Title 14 indecent liberties statute.
Representative Buchanan asked if there are statutory "good days" that would reduce a minimum mandatory sentence.
Ms. Judy Catchpole testified about a friend whose child was allowed to visit a home where a low risk sex offender lives. She believes the public should be notified about the residence of low risk sex offenders, so parents can make informed decisions to protect their children.
Chairman Hanes asked General Crank to look into the possibilities of civil commitment provisions for sex offenders. General Crank advised he has tasked staff in his office to work with LSO to develop the proposed legislation if the Committee is amenable to the suggestion.
The Committee agreed to the suggestion that the Attorney General's staff and LSO staff should work together to develop proposed legislation. The legislation should include establishment of a minimum mandatory sentence for certain sex offenders, clearing stating which convictions for sex offenses would apply, not allowing good time to apply to a minimum mandatory sentence and conforming the offenses in Titles 6 and 14. The provisions can be drafted as separate bills, if necessary. Chairman Hanes said there might not be a final decision made on a bill at the December meeting, but the draft legislation can serve as a basis for an interim study next year, or, with Management Council approval, additional meetings this interim to consider draft legislation more fully.
Ms. Iris Oleske, Office of Medicaid, described the history of the bill. She stated the prior legislation that is about to expire has increased program costs, but she doesn't know if it has affected availability of services. There are more physicians enrolled in the program than in recent years, but she doesn't know what effect that has had on access to services. The bill, as drafted, contained the appropriations of the original bill, but Ms. Oleske now has better estimates of what the appropriation should be for the next biennium. It would cost $2.3 million from the state general fund and $2.4 million in federal funds to fund the increased reimbursement for obstetric services under the Medicaid program for the next biennium.
Representative Landon was concerned that this bill establishes an incentive for increasing rates. Ms. Oleske agreed that could happen because the payments are not consistent with the process used to keep other services at a manageable level. Senator Sessions defended the bill by stating that some physicians are no longer refusing to perform obstetric services as a result of the increased reimbursement under Medicaid. Mr. Robert Kidd, Wyoming Hospital Association, said there are still 3 communities in the state that do not have obstetric services. The bill rewards those physicians who would participate so the level of services would not be degraded. He also stated that Wyoming will not be receiving the same level of federal match that it used to, so more state general fund dollars are necessary to maintain the level of reimbursement.
The bill was laid back for further consideration until the December meeting, so staff can update the appropriations in the bill.
Ms. Oleske presented this bill on behalf of the Office of Rural Health. There is currently $1.3 million in loans to 11 physicians, for a total of $1.365 million to administer the program. The Office of Rural Health recommends that half that latter figure be appropriated for the program for the next biennium. Though it is not widely used, it is believed to be a good program. Ms. Oleske does not know the amounts of the loans or the interest rates charged. Chairman Hanes laid the bill back to get more information on the program and to revise the appropriation contained in the bill.
Representative Lubnau presented the bill he has prepared by stating there is a shortage of physicians in Wyoming and nationwide. The problem is particularly acute in Wyoming because in the difficulty in recruiting. The bill proposes to allow physicians who are under contract with a county memorial hospital or hospital district to be covered by the Governmental Claims Act. He distributed Appendix 3, an advisory letter from the U.S. Department of Health and Human Services explaining the circumstances where it would be acceptable for a hospital to provide coverage for a contract physician, and Appendix 4, a Wyoming Attorney General's opinion stating that inclusion of contract physicians of such hospitals would be constitutional. By including the contract physicians under the Governmental Claims Act, they would have their personal assets protected and the bill might become a helpful recruitment tool for the state.
Representative Buchanan questioned whether W.S. 1-39-110(c)(iii) was clear in describing the intent. He suggested inserting after "physician" on line 6 "at a similar cost" or words with the similar import.
Mr. Kidd added that this bill would be a good recruitment tool. There are details that may have to be worked out in the implementation of the bill, if enacted. Most employee physicians work in the emergency room of the hospital. Contract physicians make more sense for hospitals than full employees. In response to questions from Senator Ross, Mr. Kidd advised the Yellowstone Group is contemplating spinning off a physician risk retention group. It is premature to predict if any unacceptably high premium increases for hospitals might occur if this bill is enacted into law.
Ms. Marcia Shanor, Wyoming Trial Lawyers Association, expressed the same concern with W.S. 1-39-110(c)(iii) that Representative Buchanan had. She is also concerned about the cost to hospitals by this program and if the cap of $1 million dollars in liability would side-step the will of the voters when they rejected a cap on medical damages. Senator Sessions asked who is going to pay for this immunity offered to physicians. Ms. Shanor believed the consumers will ultimately pay. Representative Landon agreed, but thinks this bill is only a stop-gap measure intended to protect all concerned to some extent.
Chairman Hanes said this was a bill of first impression for the Committee. He suggested laying the bill back for consideration at the December meeting, if the Committee wants to consider the bill further. W.S. 1-39-110(c)(iii) can be amended between now and then. Senator Sessions asked that the Insurance industry be invited to the next meeting to discuss the ramifications of the bill.
Mr. Rodger McDaniel, Director, Department of Family Services, advised the Committee of the Governor's letter explaining the shortfall of $6.6 million for juvenile placements this biennium. The Department of Family Services will roll back reimbursement to providers 3.5% to make funds last through March 31, 2006. A 4% roll back would get the Department through the biennium, but would cause chaos for providers. Forty-four million dollars was provided for out-of-home placements for the biennium. As much of 60-65% of such placements are related to methamphetamine use. The Department has looked at the possibility of performance-based contracts to expand foster care programs. Such programs have a proven success in states such as Kansas that uses performance-based contracting. He introduced Mr. Wayne Sims, KVC Behavioral HealthCare (KVC), who was at the meeting to explain performance-based contracting in Kansas.
Mr. Sims explained he has 35 years experience as a provider. KVC provides services that are normally provided by the state as a result of a lawsuit brought against 20 states by the American Civil Liberties Union (ACLU). The ACLU complained of too few services in those states, which complaint resulted in 110 settlement issues that weren't addressed in Kansas for about 8 years because the Legislature wouldn't provide the necessary funds. Finally, in 1997, a new governor was elected who sought to privatize services through performance-based contracts. KVC was the largest residential provider in Kansas at the time. Under performance-based contracts, the provider is responsible for finding permanency for the child. Within 24 hours, KVC meets with the birth family to determine if permanency is achievable with the family and presents a plan to the court within 21 days. The national failure rate for children permanently placed is 34%. In Kansas, the failure rate is 8% overall and KVC only has a failure rate of 4%. If a child re-enters the system, the provider, not the state, pays for the services the child will need. It usually takes about 14 months to secure a proper placement for a child. Mr. Sims distributed Appendix 5, containing data KVC's performance with children in the system. In response to questions from the Committee, Mr. Sims stated that KVC's compensation is based on a contract that is entered into for a period of years and compensation will vary by contract. The first contract was for 4 years and was based on a contract case rate for each child through permanency placement. The second contract was on a monthly rate. The latest contract will be based on longer periods of time, e.g., 1-6 months and 7-12 months, etc., with a declining rate period, so the longer a child is in the program, the less the provider is paid. After 12 months, the rate drops to 26% of the original rate. Mr. McDaniel distributed Appendix 6, a press release describing the reduction in foster care placements in Kansas. In response to a question from Representative White, Mr. Sims said the state agency had not reduced staffing as a result of the privatization because the state agency is still responsible for investigations and contract compliance.
Representative Landon asked Mr. McDaniel where Wyoming was on this issue. Mr. McDaniel replied that the Department of Family Services would like to pursue some aspects of the Kansas model. In Wyoming, we buy services. In Kansas, they buy outcomes. In Kansas, the Department of Family Services chooses its providers through a contract process. In Wyoming, the courts and multidisciplinary teams make that decision. Chairman Hanes asked if there was a present need for legislation. Mr. McDaniel didn't believe there is a pressing need yet, but he may request some legislation at some later stage of the planning.
Dr. Pablo Hernandez, Department of Health, said the Chris S. lawsuit forced the Department of Family Services, Department of Health and Department of Education to work together on issues for children. The Wyoming State Hospital had a juvenile unit with 40 beds, which occupancy was reduced gradually so that there have been no occupants in the juvenile unit since 2004. He has been held in contempt of court for his refusal to accept juveniles, but in those situations he has accepted the child in the front door and referred the child to a more appropriate program out the back door. But the empty juvenile unit has cost him some staff positions because of the perceived lack of need. He no longer has a child psychiatrist, so he has to contract with other providers as necessary.
Ms. Oleske distributed Appendix 7, a chart of Medicaid court-ordered children enrollment and cost per child; Appendix 8, a chart of Medicaid expenditures on court-ordered children by year; and, Appendix 9, a pie chart of Medicaid expenditures for court-ordered children in FY05. Residential costs are in addition to what the Department of Family Services pays for residential placements. The Department of Health dollars are for specialized services related to the residential placement. The figures shown are for approximately 630 children a year, not including those in psychiatric care.
Mr. John Harrison, CEO, Frontier Corrections Systems (FCS), described programs operated by FCS, including the Jeffery C. Wardell Academy for juveniles. FCS has a pilot project with the Department of Family Services to implement a Kansas style program. He will be starting a methamphetamine treatment program for juveniles at FCS soon. He is not asking for more dollars. FCS is operating under the same rate structure that existed in 1993 when FCS took over operations from Goodwill Industries.
The Committee recessed at 3:55 p.m.
Chairman Landon called the meeting to order at 8:10 a.m. The following sections summarize the Committee proceedings by topic. Please refer to Appendix 2 to review the Committee Meeting Agenda.
Mr. Joe Evans, Director, Wyoming County Commissioners Association (WCCA), explained that WCAA has worked with law enforcement, county attorneys, the Wyoming State Hospital and others to review and revise the bill that died in the House Judiciary Committee last year. He is presenting the bill with a few minor changes, but the bill is substantially similar to the bill considered last year. He briefly explained the Title 25 emergency detention and involuntary commitment processes. There are two issues that the WCCA is concerned about, including who pays the costs after the first 72 hours of detention and the establishment of regional mental health facilities, the latter of which is being considered by the Select Committee on Mental Health and Substance Abuse Services.
Mr. Bill Hardin, Natrona County Attorney, advised most cases are resolved without a hearing before the 72 hours detention period expires. He explained that the hearing under W.S. 25-10-109 must be held within 72 hours of the emergency detention, but the involuntary commitment hearing under W.S. 25-10-110 would not happen for 10 days, after which the state picks up the cost if the detainee is involuntarily committed.
Mr. Chuck Hayes, Administrator, Mental Health Division, stated that involuntary commitments get preference for empty beds at the State Hospital over persons who seek voluntary commitment. The Department of Health is focusing on shortening periods of detention. All gate keeping evaluations are conducted at the local level. The Department is looking at regionalization to establish designated facilities.
Representative Lubnau believes setting a single rate for detention statewide may bring all interests to a common ground.
Mr. David Clark, Carbon County Attorney, distinguished between the 72 hour emergency detention period and the 10 day hold for involuntary commitment proceedings. No treatment is provided during the 10 day hold. If treatment was provided during that period, an involuntary commitment could often be avoided. He hopes that regionalization will establish facilities that provide treatment during the 10 day hold.
Mr. Kidd said that even small hospitals get the emergency detentions, but there are only 5 hospitals in the state that are truly capable of providing treatment. Dr. Hernandez is trying to enter into regional contracts with those 5 counties. The bill the WCCA is presenting only defines financial responsibilities during specified periods, but does not attempt to solve problems with the process. Nevertheless, the provider community supports the bill.
Mr. Kevin Bohnenblust, Wyoming Association of Psychiatric Physicians, testified that theTitle 25 proposed changes are only a piece of the mental health system in Wyoming. The proposed bill is a first step in addressing the larger picture.
Mr. Bill Sexton, Wyoming Behavioral Institute (WBI), advised that WBI accepts about 400 commitments each year. The facility has memoranda of understanding with 5 other counties to serve as a regional facility.
Ms. Susie Pouliot, Wyoming Medical Society (WMS), reiterated Mr. Bohnenblust's comments. She offered the Wyoming Medical Society's support for the proposed bill.
Mr. Evans concluded by saying the goal is to get Committee sponsorship of the proposed bill that already has the support of all stakeholders who have spoken on the issue.
Chairman Landon asked Mr. Evans to work with LSO staff to prepare a bill for further consideration by the Committee. He would like a rationale in writing for the changes proposed. Mr. Evans said he would try to get the best fiscal impact information he can to accompany the bill.
Mr. Richard Jamieson distributed Appendix 10, consisting of the written presentation of the Trean Corporation to the Committee and the résumés of the principals of the Trean Corporation. He explained that he has been working with the Trean Corporation to consider the viability of a self-funded mutual insurance company for physicians. He believes this effort is the first step in stabilizing medical malpractice premiums. The proposal would require an $8.5 million loan from the state to capitalize the proposed entity. He introduced Mr. Richard Bray, CEO of the Trean Corporation, Mr. Chip Wallace, Director of the Nevada Medical Mutual Insurance Company, and Mr. Dan Fosterling, Chief Underwriting Officer of the Trean Corporation.
Mr. Wallace described the crisis Nevada faced with medical malpractice rates. The Trean Corporation created a non-profit mutual association to eliminate the greed factor. The result was stabilized premiums, encouragement of critical specialties, reduction in defensive medical practices and creation of an entity that won't leave the state in a time of crisis and that works more closely with physicians and patients to improve the health care system. After 3 years in operation, premiums by the Nevada Medical Mutual Insurance Company are now being reduced, unlike the premiums of the for-profit medical insurers in Nevada.
Mr. Bray proceeded to make the presentation provided in Appendix 10. Medical malpractice insurance is considered a "long tail" system because it takes several years to learn if the rates were properly set. Thus, a mutual insurance company requires a large capital base to be able to function. Eventually, it would need to write 35-40% of the market to reach the critical mass level to compensate for the ebb and flow of claims. Wyoming is considered by the American Medical Association to have an unfriendly legal environment because it does not have caps on medical malpractice damages. The creation of a medical review panel does make for a more friendly legal environment. The Trean Corporation is looking for Committee sponsorship of legislation supporting the Trean proposal.
Mr. Fosterling stated that the Millman Study for the Wyoming HealthCare Commission provides the necessary support to warrant establishment of a mutual medical liability insurance company at rates lower than the for-profits are currently charging in Wyoming, while maintaining underwriting integrity.
Chairman Landon suggested that the presenters go to the Wyoming Business Council (WBC) and the State Treasurer for consideration of their proposal. The Joint Judiciary Interim Committee doesn't have the financial expertise to sponsor the necessary legislation. Ms. Wendy Curran in the Governor's office and Mr. Ken Vines, Insurance Commissioner, should also be involved. Chairman Landon said he would call the WBC and State Treasurer to advise them of a possible presentation by the Trean Corporation.
Ms. Pouliot testified that the WMS hasn't been invited to participate in meetings. She believes the issue is affordability, not access to medical malpractice insurance. She doesn't know the impact of the proposed entity and has many questions, including that the proposal may tilt the playing field against existing insurers. The private sector could make the proposal a reality if the idea has merit. The $8.5 million requested could be used for other concepts the physicians would prefer.
Mr. Bray explained the WMS has not been invited to participate because, in Nevada, the medical association was receiving incentives from a private insurer, which brought into question that association's impartiality. Additionally, since the Trean Corporation would have to present proprietary matters, there was a concern that the information would be provided by the Nevada Medical Association to the private insurer that was providing the kickbacks. He does not know what, if any, relationship the WMS may have with current insurers in the state, but he will work with the WMS to explain the proposal and answer any questions he can.
Chairman Landon said he looked forward to continuing conversation in this matter at the December meeting.
After a tour of the Wyoming State Penitentiary (WSP), the Committee returned to the meeting to receive a presentation from Mr. Bob Lampert, Director, Department of Corrections (DoC). Mr. Lampert distributed several appendices, including Appendix 11, 2005 staffing standards of the DoC, Appendix 12, DoC's strategic Plan for FY06-FY09, and Appendix 13, proposed locations of programs and services after completion of all construction projects. He has a good corps of staff in 4 divisions, but staffing is not complete. There are 30 correctional officer positions vacant. While the old model of incarceration focused on controlling movement of inmates, the correctional officers now interact with inmates to model proper behaviors. Under Director Lampert's initiative, the system will go tobacco free by July 1, 2006. This should lower medical costs for the DoC, while dealing with addictive behaviors. There were no critical indicators when he instituted a similar program in Texas. The DoC will be offering a tobacco cessation program. The Women's Center in Lusk has been smoke-free since 1993.
The DoC expects to present a proposed budget request of $195 million for the next biennium and an additional $30 million request in the exception budget. The focus will then shift to addressing staffing and equipment needs in staggered increments as the new facility in Torrington is completed by the end of 2007. The shift of responsibility to DoC for implementation of the Addicted Offender Accountability Act and the reentry program will also be factors in the need for more staffing.
Mr. Lampert described the programs offered at various facilities. There are 540 inmates currently housed out-of-state. He is looking at a third site in Texas to house high risk inmates. The boot camp is not being used by judges, who are skeptical of the program's success, but when coupled with intensive probation services and other programs, it can be successful. The DoC has to educate judges about the programs offered at the boot camp to increase use of the facility. The occupancy rate at the boot camp is currently at 65%. The occupancy at the WSP is at 103%, while the ideal occupancy rate is closer to 90%. The population of inmates is projected to increase by 150 inmates by 2008. By January, 2006, construction of the new facility in Torrington is scheduled to begin. Projected costs for the facility have increased about 5%.
There being no further business, Chairman Landon adjourned the meeting at 4:00 p.m.
Respectfully submitted,
Senator John Hanes, Representative Jack Landon,
Cochairman Cochairman