An independent panel would examine the deaths of children being supervised by the state to determine whether the deaths were preventable, under a proposal being pushed by Gov. Steve Beshear's administration.
Janie Miller, head of the Cabinet for Health and Family Services, said all information provided to the proposed panel, which requires legislative approval, would be confidential. Summary information about conclusions would be available to the public.
"The loss of a child at the hands of an abuser or as the result of neglect is tragic and must be prevented whenever possible," Miller said.
The legislation will be sponsored by Rep. Tom Burch, D-Louisville, and modeled after a Virginia law, Miller said. The independent review would follow the cabinet's internal review and investigation, she said.
After the review, the panel would develop recommendations to address systemic issues and child welfare practices. Any problems the panel identified in the actions of state and local agencies would be referred to authorities for review.
"This is an important step in increasing transparency of investigations of child-abuse and neglect-related deaths," Miller said.
But Jon Fleischaker, a noted first amendment lawyer in Louisville, questioned that statement.
"One can only wonder how secret proceedings which only result in summary disclosures, recommendations and summary data, with no disclosure of the factual basis for these findings, can possibly lead to increased 'transparency,' " he said. "In fact, this proposed procedure could possibly have the opposite effect."
Burch said he hasn't seen the proposed legislation yet, but he is concerned about the call for confidentiality.
"If we keep things confidential, it's not good for anybody," he said, adding that he would be working with other legislators to see if the bill could be made more transparent. "I don't have the bill yet, and I don't have the wording. I was just asked yesterday if I would sponsor it and I said I would."
The independent panel would include representatives from medical, legal, law enforcement and education fields and from social service agencies. Panel members would sign confidentiality agreements, and meetings involving discussions of individual cases would be closed. There would be penalties for members who violated confidentiality, Miller said.
Summary data from the panel's review would be provided to the governor and the General Assembly, and distributed in reports that would be available to the public.
The cabinet did not do a required internal review of the May 2009 death of Kayden Branham, a 20-month-old Wayne County boy who died after drinking drain cleaner. The boy and his 14-year-old mother had been staying at a trailer where the drain cleaner allegedly had been used to make methamphetamine.
The toddler and his mother, Alicia Branham, had been in foster care, and social workers were monitoring them at the time he died. The cabinet said it did not review Kayden's death, as required, because a district judge had imposed a gag order in a criminal case that arose from his death.
The cabinet has long refused to release files on children who died while being monitored by social workers. However, Franklin Circuit Judge Phillip Shepherd ordered the agency to release records on Kayden and his mother in response to a lawsuit filed by the Lexington Herald-Leader and The Courier-Journal of Louisville.
Fleischaker, who represents The Courier-Journal, called the proposed confidentiality of the panel "outrageous."
"They were told they had to release this information in a lawsuit," Fleischaker said. "They are trying to go around it and create new law so that they can operate secretly."
David Richart, executive director of the Louisville-based National Institute on Children, Youth and Families, concurred with Fleischaker's concerns about the confidentiality of the panel's work.
The panel "fails to meet the accountability and transparency standards that we now expect of state agencies," he said. "It fails in a big-time way to pierce the veil of secrecy regarding child fatalities."
But Terry Brooks, executive director of Kentucky Youth Advocates, said the proposed panel "is a thoughtful and good-faith effort" to address what he called a crisis of child fatalities.
"I always think the balance of confidentiality is a difficult proposition," Brooks said. "Anyone suggesting the choices are easy just doesn't get the complexities involved in balancing the rights of families affected and the need for accountability.
"I think that this idea has the potential to strike a reasonable — and even promising — balance," he continued. "The intent of Judge Shepherd's ruling was to ensure more accountability and to ensure ongoing improvement. I think those goals can be met, in part, through this panel."
Brooks said, however, that panel members should not be dependent upon the cabinet for funds, and concerns about individual cases of child deaths should be heard in a timely manner.