Kentucky's GESTAPO Continues To Flaunt And Abuse Power. It Is Past Time To Rein It In.

 

Family services witness doesn't know who reclassified 4-month-old's death

Witness denies knowing who shielded baby's death from scrutiny

A nurse administrator sent by the Kentucky cabinet for Health and Family Services to testify about a last-minute change to reclassify a case involving the death of a 4-month-old said Wednesday she didn’t make the decision and doesn’t know who did.

Franklin Circuit Judge Phillip Shepherd had ordered the cabinet to present the decision maker for a deposition after discovering last week that the case had been reclassified to say negligence was not a factor — three years after the infant, Rafe Calvert, died, and weeks before officials were to testify in an open records case.

By reclassifying the child’s death to say neglect by Rafe’s parents was not a factor, the file detailing the cabinet’s work on the case is no longer subject to the state Open Records Act.
Cabinet attorney Mona Womack said Wednesday that in sending nurse administrator Deborah Acker to testify on Wednesday, it was fulfilling Shepherd’s order.

But during her nearly two-hour deposition — before Womack and attorneys for The Courier-Journal and the Lexington Herald-Leader, which are suing for more transparency of state files in cases of death or near death of abused or neglected children — Acker said she was not the person who decided on the reclassification.
Acker reviewed Rafe’s autopsy report at the request of a supervisor and advised the supervisor only that the cause of death was undetermined.
She noted that the medical examiner had listed the baby’s premature birth and missed doctors’ appointments as “complicating” factors, but said it was not her role to determine if the baby died because of neglect.

Jon Fleischaker, who represents The Courier-Journal, said during the proceeding that he believes the cabinet violated Shepherd’s order by failing to provide the proper person to answer for the change.
“It was a very unusual situation,” Fleischaker said afterward.

Rafe died in February 2010, six days after a Passport health worker called Child Protective Services to report suspicion that Rafe, who was born prematurely and had missed eight doctor’s appointments, was being neglected. On March 5, a CPS social worker followed up on that call, learning only then that Rafe had about a week earlier been found dead, laying face down on a pillow in a bassinet in his mother’s bedroom. It took another four days, until March 9, for a worker to visit Rafe’s home to determine whether the other child there was safe and to begin investigating Rafe’s death. In April 2010, the state Department of Community Based Services concluded that Rafe’s parents, whose names have been removed from files released on this case, neglected the newborn’s medical needs.

But last month, when attorneys for the cabinet were preparing to testify about why parts of Rafe’s file have been withheld from the public, cabinet officials requested Rafe’s autopsy report and then decided his death had nothing to do with medical neglect. Rafe’s file is one of about 140 cases related to child deaths and near-deaths as a result of abuse or neglect that the newspapers requested under the Kentucky Open Records Act. For more than three years, the cabinet and The Courier-Journal and Lexington Herald-Leader have been in a court, battling over the release of records. Last year, the cabinet, under a court order, began releasing files, but blacked out or removed information, including names of other children in families, names of most adults involved unless they were criminally charged, and previous investigations made by the cabinet that they determined were unrelated or weren’t substantiated. Shepherd has ordered the cabinet to turn over the files, but provided guidelines on what can be removed. Attorneys for the newspapers questioned cabinet officials on their reasons for removing information from 20 of those files in a hearing last week. It was during that hearing that Teresa James, commissioner of the cabinet’s Department for Community Based Services, said Rafe’s case was no longer being considered a death involving abuse or neglect. James explained last week that officials had failed to request a completed autopsy at the time of the investigation. Once they reviewed it in July, they determined that while Rafe’s parents had committed medical neglect, it did not contribute to Rafe’s death. After the hearing, Shepherd ordered the cabinet to provide the person who had made the reclassification decision to testify. Attorneys for both sides have 30 days to file briefs regarding the cabinet’s redactions, then 20 days to respond. Shepherd is then expected to rule on whether the cabinet has withheld information appropriately.