Two powerful lawmakers Wednesday questioned why state officials filed an emergency rule to limit information about the actions of child protection workers in cases where children are killed or severely injured because of abuse and neglect.
"This doesn't seem to be moving in the direction that I think a lot of us would like to see — more openness" said state Sen. Julie Denton, R-Louisville.
Denton, who heads the Senate Health and Welfare Committee, and her counterpart in the House, state Rep. Tom Burch, D-Louisville, said they had asked for more information on the regulation filed by the Cabinet for Health and Family Services on Jan. 3.
The regulation, which became effective immediately, was signed by Gov. Steve Beshear and was filed weeks after Franklin Circuit Judge Phillip Shepherd ordered the cabinet to release hundreds of pages on the May 2009 death of Kayden Branham, a 20-month-old Wayne County boy who died after drinking drain cleaner.
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The rule can stay in effect for 180 days or until the cabinet files a permanent regulation. Lawmakers would have to pass a law to reverse it.
House Speaker Greg Stumbo, D-Prestonsburg, said he expects that the issue will be debated during the current session and that legislation could result.
"We'll undoubtedly hear more about the cabinet's decision to go this route and what needs to be done in response," Stumbo said.
Beshear said he is committed to transparency.
"The regulations do not add new restrictions to information; rather, they ensure that the cabinet continues to meet the federal laws that mandate what information must be kept confidential," he said.
"These are not our guidelines; these are federal mandates on maintaining confidentiality of certain records. The cabinet may release whatever information is not prohibited by federal law."
In the case of Kayden Branham, the boy and his 14-year-old mother, Alisha Branham, had been staying at a trailer where drain cleaner allegedly had been used to make methamphetamine. Mother and son had been in foster care, and social workers were monitoring them.
Shepherd ordered the agency to release the records in response to a lawsuit filed by the Lexington Herald-Leader and The Louisville Courier-Journal.
Before the order, the cabinet had refused to release files on children who died while being monitored by social workers.
Under the emergency regulation, the agency must release limited information, including the child's sex, date of birth, the date and location of the death, summary information about the cabinet's investigation and summary information about the cabinet's involvement with the child.
The cabinet also must provide information on any recommendation it has made to a court and on services that were given to the child.
"It does appear that they are trying to circumvent the court," Denton said Wednesday about the rule. "I hate to cast aspersions when I don't know the whole story. It does look funny. It's not passing the smell test at this juncture, and I'm hoping the cabinet will be more communicative with us with what they are doing and why."
Senate President David Williams, R-Burkesville, said his office had not been briefed on the regulation.
"It presents that they are trying to hide something or that they didn't do their jobs properly," Burch said.
But cabinet spokeswoman Vikki Franklin said Wednesday that the regulation enhances transparency.
"By adding specificity, the amended regulation not only defines but also expands the information currently released," Franklin said. "This regulation enhances transparency of the cabinet's actions."
Robert F. Houlihan Jr., the attorney who represents the Herald-Leader, disagreed.
"The regulations prohibit the open disclosure of these records like Judge Shepherd directed," he said. "That does not make the cabinet's work more transparent."
In addition to the emergency regulation, the cabinet has asked Burch to sponsor a bill to create an independent panel to review deaths and near-deaths of children under state supervision. All information provided to the proposed panel would be confidential. Only summary information about conclusions would be available to the public.
"Even though the federal government requires that records be kept confidential," said Beshear, "we feel strongly that some independent group should be able to review those records to determine if there are any changes that need to be made in the cabinet's processes to improve outcomes for families. That's why we have proposed installing an independent panel to review these cases, with their summary results made public."