The August meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, August 1, 2000 at 10:00 AM, in Room 131 of the Capitol Annex. Representative John Arnold, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: John Arnold, Chairman; Senators Joey Pendleton, Richard Roeding and Marshall Long; Representatives Woody Allen, Jimmie Lee and James Bruce.
Guests: Rick Casey, Linda Renschler, Robin Thomerson, KHEAA; Daniel F. Egbers, Singer Buchanan, Personnel Cabinet; Richard Dobson, Revenue Cabinet; Michael A. Mone, Board of Pharmacy; Jim Grawe, Bill L. Jett, Board of Social Work; John P. Sohan, Diane Fleming, Lisa Smith, Board of Marriage and Family Therapists; Scott Porter, Roy Grimes, Tom Bennett, Department of Fish and Wildlife Resources; Phyllis Bruning, Economic Development Cabinet; Ira Linville, Bruce Williams, Sherry Prior, Vicki Pettus, Katie Ashcraft, Bruce Scott, Natural Resources and Environmental Protection Cabinet; Dr. Rich Purvis, Brenda Priestley, Dr. Gary Dennis, Tamela Biggs, Department of Corrections; Amy Barker, Dennis Wagner, Sex Offender Risk Assessment Advisory Board; Ken Schwendeman, John Bizzack, Stephanie C. Bingham, Department of Criminal Justice Training; Kevin Noland, Barb Kibler, Board of Education; Patricia Willimas, State Advisory Panel for Exceptional Children; Sherry R. Deatrick, Workforce Development Cabinet; Rick Jones, David Reichert, Colleen Keefe, Department of Financial Institutions; Judith Walden, Department of Housing, Buildings and Construction; Rosanne Barkley, Joyce Metts, Shirley Eldridge, Pat Patterson, Cabinet for Families and Children; John A. Volpe, Vicki D. Jeffs, Deborah Green, Barbara Utter, James Carreer, W. L. Moore, Karen Doyle, Cabinet for Health Services; Teresa T. Combs, Kentucky School Boards Association; Betty D. Muntz, Kentucky Council of Administrators of Special Education; Marti Ginter, Clatis Walker, Central Kentucky Special Ed Cooperative; Judy Mallory; John Roberts, Director of Hardin County Special Ed; Keith Omer, Union County Schools; Wade Helm, Kentucky Conservation Committee; W. Henry Graddy, Aloma Dew, Sierra Club; W. Blaine Early III, Stites & Harbison; Allen Chambers, Jeff Power, Morris Hill, Todd Wright, Tyson Foods, Inc.; Kate Preskenis, Ann Wilkerson, Kentuckians for the Commonwealth; Howard McGregor; Edna Bates; Charles Bates; Bernadine Edwards, McLean County Against Factory Farms (MCAFF); Debra Stamper, Ballard Cassady, Jr., Kentucky Bankers' Association; Carol L. Grissett; Howard McGregor; Carole Howton Long; Edna Bates; Charles Bates; Gay Dwyer, Kentucky Retail Federation; Robert L. Barnett, Jr., Kentucky Pharmacists Association; Ted Bradshaw, IIAK; Michael W. Wooden, Sprint, Inc.; Greg Coker, Ron Geoghegan, BellSouth; Joe A. Nepi, Doe Valley of Mead County; Jennifer Rhoades, MEPAK.
LRC Staff: Dave Nicholas, Donna Little, Stephen Lynn, Edna Lowery, Susan Wunderlich, Ellen Steinberg, Ellen Benzing, Dan Risch, Biff Baker, Don Hines.
The Subcommittee determined that the following administrative regulations, as amended by the promulgating agency and the Subcommittee, did not comply with statutory requirements and were found deficient:
Board of Licensure of Marriage and Family Therapists
201 KAR 32:030. Fees. John Sohan, Chairman, and Diane Fleming, Assistant Attorney General, represented the Board.
In response to questions by Representative Allen, Mr. Sohan stated that: (1) in 1998, the General Assembly changed the three year certification requirement for marriage and family therapists to a one year licensure requirement; (2) this administrative regulation: (a) implemented that statutory change; (b) eliminated the $250 three-year certification fee; and (c) established a $110 one-year licensure fee; and (3) the fee amount was increased by approximately $27 a year to enable to the board to: (a) pay for increased litigation; and (b) hire additional attorneys for disciplinary hearings.
Representative Allen stated that: (1) state agencies, including those agencies that had a six billion dollar budget, always provided good reasons for fee increases; and (2) he wondered when Kentucky citizens would complain about the fee increases because the fee increases: (a) were frequent; and (b) would be passed on to the citizens of Kentucky.
Chairman Arnold stated that: (1) while he agreed with some of Representative Allen's concerns, he did not agree with all of his concerns; and (2) he realized that: (a) state agencies required money to police professions; and (b) as costs increased, those agencies sometimes required additional funding.
In response to questions by Senator Roeding, Mr. Sohan stated that the Board: (1) was not able to predict how much additional money would be needed to cover the litigation costs; (2) had entered into a memorandum of agreement with one hearing officer to establish the maximum amount to be charged in one case; and (3) had an increased number of cases as citizens in Kentucky: (a) became more aware that marriage and family therapists were licensed; and (b) brought more charges against therapists.
In response to questions by Senator Roeding, Subcommittee staff stated that: (1) as the board was transitioning from a three year certification cycle to a one year licensure cycle, the Board would have: (a) one year with a large income; and (b) two years with smaller incomes; (2) on a three year cycle, the money collected in the first year needed to last all three years; (3) he did not know whether 1998, 1999, or 2000 was the first year of the Board's current three year cycle; and (4) the Board would be able to plan and budget better under an annual licensure system compared to a three year cycle.
Representative Allen stated that he: (1) believed state agencies found ways to spend all the money appropriated to, or collected by, the agency; (2) wanted to express his vote against this administrative regulation; and (3) moved to find this administrative regulation as amended deficient.
Senator Long stated that fee increases should: (1) be made through legislation considered by the General Assembly; and (2) not be made through administrative regulations considered by the Subcommittee.
This administrative regulation was amended as follows: Section 7 was amended to make a technical correction to the provisions incorporating material by reference.
The Subcommittee approved a motion by Representative Allen, seconded by Senator Roeding, to find this administrative regulation, as amended, deficient, with: (1) Senators Pendleton and Roeding, and Representatives Allen, Bruce, and Lee voting to find this administrative regulation, as amended, deficient; and (2) Senator Long and Chairman Arnold voting not to find this administrative regulation, as amended, deficient.
Natural Resources And Environmental Protection Cabinet: Department for Environmental Protection: Water Quality
401 KAR 5:072 (& E). Concentrated animal feeding operations. ("E" expires 8/18/00) Bruce Williams, Deputy Secretary, and Bruce Scott, Division of Water, represented the Cabinet. Written comments in support of this administrative regulation were submitted by Aloma Dew, Sierra Club Conservation Organizer. Written comments in opposition to this administrative regulation were submitted by David Van Bebber, Vice President, Legal Services, Tyson Foods, Inc.; John Chlada, Director, Environmental Services, Perdue Farms Inc.; and Rebeckah T. Freeman, Director of Natural Resources, Kentucky Farm Bureau Federation.
Senator Long moved for approval of the amendment. The motion was seconded by Representative Bruce.
In response to a question by Chairman Arnold, Senator Long stated that the amendment exempted horses.
Chairman Arnold stated that he wanted this administrative regulation to include horses because: (1) like other animals, horses produced waste; and (2) the burden should not be put solely on the beef and dairy cattle, poultry, and swine industries.
Representative Lee stated that while he believed this amendment had merit, because the issues raised by this administrative regulation were the subject of an on-going legal challenge, he did not feel comfortable making a decision prior to the court's ruling regarding the Cabinet's authority to promulgate this administrative regulation.
Senator Long stated that: (1) while he had heard complaints from people who lived next to poultry farms, he had not heard complaints from neighbors of horse farms or dairy farms; (2) generally horse owners kept the horses away from the road to protect the valuable horses; and (3) while everyone knew that the Subcommittee would find this administrative regulation deficient, he believed that some regulations were needed because the industries posed significant health problems.
Chairman Arnold stated that he: (1) liked horses, beef, pork, and other animals; (2) had not heard complaints regarding horse, beef, dairy, or swine farms; (3) had heard complaints regarding poultry farms; (4) did not think horses should be subject to different standards; and (5) agreed with Representative Lee that the issues needed to be settled in court.
Senator Roeding stated that: (1) the amendment highlighted some of this administrative regulation's unintended consequences, including its affect on horse farms, race tracks, and others; (2) this administrative regulation should not be approved until its consequences are known; (3) the Cabinet should: (a) withdraw this administrative regulation because it was deficient; and (b) contact legislators in other states, such as Iowa, to see how those other states regulated animal industries; and (4) he: (a) supported the amendment; and (b) did not want to see this administrative regulation destroy Kentucky's industries.
Representative Allen stated that while he loved horses, he believed the other industries needed to be treated equally.
Representative Lee stated that he supported the amendment because horses, and other animals, should be exempt from this administrative regulation.
The Subcommittee approved the motion to amend this administrative regulation, with: (1) Senators Long, Pendleton, and Roeding, and Representatives Bruce and Lee voting to amend this administrative regulation; and (2) Representatives Allen and Arnold voting not to amend this administrative regulation.
Chairman Arnold stated that: (1) the inclusion of horses would have placed added pressure on the Cabinet to reduce the requirements established in this administrative regulation; and (2) if horses were included, the horse industry could assist the beef cattle association, dairy farming association, poultry association, and swine association in their attempts to: (a) work with the Cabinet to reduce the requirements of this administrative regulation; and (b) litigate the relevant issues.
Senator Roeding: (1) stated that the unintended consequences of this administrative regulation should be considered; and (2) moved that this administrative regulation, as amended, be found deficient.
In response to questions by Representative Lee, Mr. Williams stated that: (1) the Cabinet: (a) liked this administrative regulation; (b) believed that this administrative regulation would protect the citizens of Kentucky from problems caused by large feeding operations; and (c) developed this administrative regulation from guidelines given by the federal government to develop and expand the KPDES program, which was similar to the federal NPDES program; (2) this administrative regulation: (a) only affected large feeding operations; (b) did not affect current beef cattle operations because none of the current cattle operations in Kentucky would qualify as a concentrated animal feeding operation; (c) mainly affected large swine and poultry operations; and (d) did not prohibit a person from operating a concentrated animal feeding operation; and (3) the Cabinet and the governor felt very strongly about this administrative regulation's ability to protect Kentucky citizens.
Representative Lee stated that: (1) the Cabinet had just gone on record as having stated that this administrative regulation represented what the Cabinet needed to do; (2) before the 2000 Regular Session, the Subcommittee found a similar administrative regulation deficient; (3) if the Cabinet had felt strongly about that administrative regulation, the Cabinet should have put forth an effort to codify its provisions during the 2000 General Assembly; (4) legislation to codify the previous swine administrative regulations had not been made; (5) he hoped that the Cabinet would propose legislation to codify this administrative regulation at the next session of the General Assembly, which he hoped would be in February 2001, to enable the 138 members, rather than the Subcommittee's seven members, to decide what requirements should be imposed on animal feeding operations; and (6) if this administrative regulation's provisions were so important that the citizens could not live without them, those provisions should be codified into the Kentucky Revised Statutes.
Mr. Williams stated that: (1) in the 1998 Regular Session, House Bill 709: (a) addressed the swine situation posed in earlier administrative regulations; and (b) was not passed despite efforts by the Cabinet, Kentucky Farm Bureau, and other agricultural agencies to enact legislation; and (2) since the 1998 Regular Session, the federal government produced guidelines that required states to make changes to the existing NPDES program based on requirements in existing law.
Representative Lee stated that: (1) if actual federal requirements had been disclosed to the Subcommittee, the Subcommittee would not question its applicability because federal law was enacted by the representatives and senators elected to serve in Congress; (2) provisions in this administrative regulation exceeded the federal requirements; (3) the General Assembly, rather than the seven Subcommittee members, should decide the requirements in Kentucky for animal feeding operations; and (3) he hoped the first Cabinet-sponsored bill in the next session addressed animal feeding operations.
In response to questions by Senator Roeding, Mr. Williams stated that: (1) on the federal mandate analysis form, the Cabinet had indicated that this administrative regulation did not impose stricter standards than those standards established by the federal government; (2) the Cabinet relied on: (a) the Environmental Protection Agency and United States Department of Agriculture's Unified National Strategy for Animal Feeding Operations, which was released in March, 1999; and (b) clarification received since that time from the EPA regarding issues that included integrator liability; and (3) the federal government sent the Cabinet a letter that advised the Cabinet to impose integrator liability.
Subcommittee staff stated that the unified national strategy was: (1) the opinion of the USDA and EPA as to what the federal law was; and (2) not actual federal law or regulation.
Mr. Williams stated that: (1) the federal government interpreted the regulation process differently at the federal level than the states did; and (2) the guidelines represented the federal agencies' requirements for the states on how to implement the program.
Chairman Arnold stated that: (1) this administrative regulation: (a) established requirements based on the opinions of the Cabinet, EPA, and USDA; (b) was not based on federal statutes or regulations; and (c) was more stringent than Kentucky law; and (2) each person had different opinions as to what the law should be.
Senator Long stated that: (1) some administrative regulations were needed to address concerns raised by Kentucky citizens negatively affected by large feeding operations; (2) as Kentucky farmers weaned themselves from tobacco, the number of animal feeding operations would increase; and (3) he: (a) did not believe legislation that established animal feeding operation requirements would pass the General Assembly; and (b) believed minimal restrictions were needed in Kentucky.
Representative Allen stated that: (1) while he recognized the need for some regulations, he also recognized the need to balance the interests of: (a) companies such as Perdue Chicken in Ohio County which had created opportunities for farmers who were losing their tobacco crops; and (b) neighbors who were not able to sit outside on their personal property because of the animal smells from neighboring farms; and (2) he did not want future administrative regulations to: (a) put the small farmer out of business; or (b) create an agricultural monopoly in just a few businesses.
Mr. Williams stated that: (1) he: (a) had worked with Representative Allen for many years; (b) had the greatest respect for him; (c) was a former staff person of the Legislative Research Commission; and (d) understood how difficult it was to balance the needs of the competing interests; and (2) the Cabinet: (a) recognized that farming had changed; (b) established requirements to keep farming compatible with environmental and other concerns; and (c) realized that this administrative regulation would not please everyone.
Chairman Arnold stated that he: (1) concurred with Representative Allen's comments; (2) believed this administrative regulation: (a) was deficient; and (b) went too far; (3) believed integrator liability would lead to increased prices for meat that Kentucky citizens would not be willing to pay.
Chairman Arnold also stated that he: (1) wanted to apologize to those individuals who: (a) had wanted to speak on this administrative regulation; and (b) were not invited to speak due to time considerations; and (2) believed this issue would be continuously debated until the General Assembly met again, either in 2002 or in February 2001.
This administrative regulation was amended as follows: (1) Section 1 was amended to clarify that this administrative regulation applied to beef, dairy, poultry, and swine concentrated animal feeding operations; and (2) Sections 3 and 4 were amended to comply with the drafting requirements of KRS 13A.222(4).
The Subcommittee unanimously approved a motion by Senator Roeding, seconded by Representative Allen, to find this administrative regulation, as amended, deficient.
The Subcommittee determined that the following administrative regulations, as amended by the promulgating agency and the Subcommittee, complied with statutory requirements:
Kentucky Higher Education Assistance Authority: Division of Student Services: Teacher Scholarship Loan Program
11 KAR 8:030. Teacher scholarships. Rick Casey, General Counsel, and Linda Renschler, Student Aid Branch Manager, represented the Authority.
In response to questions by Senator Roeding, Ms. Renschler stated that: (1) the teacher scholarship amounts ranged from $500 to $5000 a year depending on the: (a) grade level and financial need of the student; and (b) cost of attendance at that institution; (2) the scholarships were repaid through either: (a) service; or (b) money; and (3) the Authority hoped that students repaid the scholarships through service, which required them to teach at a certified high school in Kentucky.
This administrative regulation was amended as follows: (1) Section 2(1) was amended to specify the name of the required application form; and (2) Section 11(1) was amended to incorporate by reference the most recent application form in the format required by KRS 13A.2251.
Personnel Cabinet: Classified
101 KAR 2:140. Workers' Compensation Fund and Program. Dan Egbers, General Counsel, Singer Buchanan, Deputy Secretary, and Kathy Clark, Branch Manager, represented the Cabinet.
In response to questions by Senator Long, Ms. Clark stated that: (1) the University of Louisville was permitted to withdraw from the state employees workers’ compensation fund program; and (2) non-state government employer participants in the program were allowed to withdraw from the program.
In response to a question by Senator Roeding, Mr. Egbers stated that this administrative regulation did not involve changes made to the workers’ compensation program.
This administrative regulation was amended as follows: Sections 1, 4, 5, and 7 were amended to comply with the: (1) format requirements of KRS 13A.220(4); and (2) drafting requirements of KRS 13A.222(4).
Board of Pharmacy
201 KAR 2:205. Pharmacist-in-charge. Michael Moné, Executive Director, represented the Board.
This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to correct statutory citations; (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220(3)(f); and (3) Sections 2 and 3 were amended to comply with the: (a) format requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4).
201 KAR 2:240. Special limited pharmacy - charitable pharmacy. This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to correct statutory citations; (2) Section 2 was amended to comply with the: (a) format requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4); and (3) Section 2 was amended to require the filing of a plan outlining the method by which the stock of the pharmacy and the charitable pharmacy will remain separate.
Board of Social Work
201 KAR 23:015. Temporary permission to practice. Bill Jett, Chairman, and Jim Grawe, Assistant Attorney General, represented the Board.
This administrative regulation was amended as follows: the STATUTORY AUTHORITY paragraph and Section 1 were amended to correct statutory citations.
201 KAR 23:070. Qualifying education and qualifying experience under supervision. This administrative regulation was amended as follows: (1) Sections 3, 4, and 9 were amended to comply with the: (a) format requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4); (2) Section 1 was amended to include a definition of “Supervisor of record”; and (3) a new Section 10 was created to incorporate required materials by reference.
201 KAR 23:080. Code of ethical conduct. In response to questions by Senator Roeding, Mr. Jett stated that this administrative regulation: (1) provided that a client would be considered to remain a client for five years after the date of the last service rendered to protect the consumer against any inappropriate sexual conduct by the practitioner; and (2) prohibited a practitioner from having a personal relationship that was of a romantic or sexual nature less than five years after the last date of professional contact with the person.
This administrative regulation was amended as follows: Section 1 was amended to remove regulatory requirements from the definition and place those requirements in Section 2.
Board of Licensure of Marriage and Family Therapists
201 KAR 32:081. Inactive licensure status. John Sohan, Chairman, and Diane Fleming, Assistant Attorney General, represented the Board.
In response to questions by Representative Bruce, Mr. Sohan stated that: (1) this administrative regulation authorized a marriage and family therapist to voluntarily place his license in an inactive status; and (2) if the person wanted to return to active status within a three year time period, the Board would permit them to return to active status.
In response to questions by Chairman Arnold, Ms. Fleming stated that while there was not a required test to become active again, persons were required to maintain the continuing education requirements.
This administrative regulation was amended as follows: Section 1 was amended to comply with the format requirements of KRS 13A.220(4).
201 KAR 32:101. Reinstatement of license subject to disciplinary action. In response to questions by Senator Roeding, Ms. Fleming stated that: (1) not all licenses that were voluntarily surrendered would be treated as though the license had been revoked; (2) sometimes a person who faced charges wished to surrender his license to resolve the matter; and (3) a license surrendered as if revoked carried disciplinary weight that differed from a person who just voluntarily surrendered his license.
In response to a question by Senator Pendleton, Ms. Fleming stated that the Board records would note if a person turned in his license because the person: (1) no longer wished to practice; or (2) had signed an agreed order to knowingly and voluntarily turn in his license as if revoked following a disciplinary proceeding.
Subcommittee staff stated that this administrative regulation: (1) applied in a disciplinary matter when a person was charged with an offense; and (2) did not apply if a person let his license lapse.
In response to a question by Senator Long, Ms. Fleming stated that 201 KAR 32:081 established a method for persons to place their license in inactive status if the person did not want to practice for a short period of time.
This administrative regulation was amended as follows: (1) Section 1 was amended to define “A license voluntarily surrendered as if revoked”; (2) Sections 1 and 2 were amended to comply with the format requirements of KRS 13A.220(4); and (3) Section 2 was amended to make a technical correction to the provisions incorporating material by reference.
Tourism Development Cabinet: Department of Fish and Wildlife Resources: Fish
301 KAR 1:015. Boats and motor restrictions. Tom Bennett, Commissioner, Roy Grimes, Wildlife Director, and Scott Porter, Assistant Attorney General, represented the Department.
In response to questions by Representative Allen, Mr. Bennett stated that: (1) while boats that did not use a motor were not required to register, those boats were covered by safety administrative regulations; and (2) for instance, a person would be subject to law enforcement if the person rowed a boat in front of a towboat.
In response to a question by Senator Roeding, Mr. Bennett stated that the size of boats permitted in each body of water varied depending on the nature of the body of water because some lakes were too small for larger boats.
This administrative regulation was amended as follows: the RELATES TO and STATUTORY AUTHORITY paragraphs and Sections 1 and 4 were amended to correct minor typographical errors.
Game
301 KAR 2:111. Deer and turkey hunting on federal areas. In response to questions by Representative Allen, Mr. Bennett stated that: (1) the penalty for violations by hunters were decided by the court system; (2) the penalty would be more severe for a person who was caught at night: (a) spotlighting a deer; (b) firing a rifle in the dark across someone's property; and (c) mistakenly killing another animal or a doe instead of a buck; and (3) the conservation officer decided whether to issue a citation, similar to a state trooper who decided whether to issue a person caught speeding a warning, courtesy notice, or citation.
In response to a question by Senator Roeding, Mr. Bennett stated that this administrative regulation increased deer hunting seasons in each Kentucky county.
In response to a question by Representative Allen, Mr. Bennett stated that: (1) the number of deer hunters across Kentucky was stable with a slight increase because of additional landowner opportunities; and (2) the Department: (a) estimated there were 350,000 deer hunters in Kentucky, which was an increase from previous years; and (b) had sold more junior deer licenses to young hunters in recent years.
In response to a question by Representative Bruce, Mr. Grimes stated that: (1) if a farmer was experiencing crop damage because of deer, the farmer should call the Department's toll-free telephone number to request a biologist or officer to survey his property; (2) the Department would have the proper official: (a) contact the landowner; and (b) conduct an assessment, including the size of the farm and the extent of the crop damage; (3) the crop tags would be distributed; and (4) each year, the Department distributed about 13,000 free crop tags to landowners.
In response to a question by Chairman Arnold, Mr. Porter stated that KRS 150.990: (1) established the range of penalties; and (2) granted the judge the discretion to: (a) fine up to a certain amount; (b) suspend the hunter's license up to a certain duration of time; or (c) forfeit specified property.
In response to questions by Representative Allen, Mr. Porter stated that: (1) evidence: (a) was held at the Game Farm; and (b) would be returned to the person upon disposition of the case; and (2) the owner was not charged a storage fee if he was found innocent.
This administrative regulation was amended as follows: the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 2, 3, and 4 were amended to correct minor typographical errors.
301 KAR 2:172. Deer hunting seasons and requirements. This administrative regulation was amended as follows: the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 2, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, and 17 were amended to correct minor typographical errors.
301 KAR 2:178. Deer hunting on wildlife management areas. This administrative regulation was amended as follows: the TITLE, the NECESSITY, FUNCTION, AND CONFORMITY paragraph, and Sections 1 through 4 were amended to comply with the: (1) format requirements of KRS 13A.220(4); and (2) drafting requirements of KRS 13A.222(4).
301 KAR 2:179. State park deer hunts. This administrative regulation was amended as follows: the TITLE, the NECESSITY, FUNCTION, AND CONFORMITY paragraph, and Sections 1, 3, and 4 were amended to comply with the: (1) format requirements of KRS 13A.220(4); and (2) drafting requirements of KRS 13A.222(4).
301 KAR 2:221 & E. Waterfowl seasons and limits. ("E" expires 8/18/00) This administrative regulation was amended as follows: the TITLE, the NECESSITY, FUNCTION, AND CONFORMITY paragraph, and Sections 2 through 7 were amended to comply with the: (1) format requirements of KRS 13A.220(4); and (2) drafting requirements of KRS 13A.222(4).
301 KAR 2:251. Hunting and trapping seasons and limits for furbearers and small game. This administrative regulation was amended as follows: the TITLE, the NECESSITY, FUNCTION, AND CONFORMITY paragraph, and Sections 1, 2, 9, 10, 11, and 12 were amended to comply with the: (1) format requirements of KRS 13A.220(4); and (2) drafting requirements of KRS 13A.222(4).
Hunting and Fishing
301 KAR 3:026. Access to wildlife management areas for mobility-impaired individuals. This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY paragraph was amended to correct a statutory citation; (2) the TITLE, the NECESSITY, FUNCTION, AND CONFORMITY paragraph, and Sections 1 and 2 were amended to comply with the: (1) format requirements of KRS 13A.220(4); and (2) drafting requirements of KRS 13A.222(4).
Water Patrol
301 KAR 6:005. Boat registration fees. In response to a question by Senator Roeding, Mr. Bennett stated that: (1) this was a planned increase that had been discussed with the interim committees for the past three years; (2) the Cabinet had worked with the LRC task force on long-term funding; (3) this proposed increase: (a) had been disclosed to the appropriations and revenue committees during the interim and session; (b) was projected to generate about $750,000 for the Department; (c) would affect about 160,000 boats; and (d) was a graduated increase on five classes of boats depending on size; (4) the last time the fee was increased was in 1982; (5) the Cabinet did some calculations and found that even with the increase, the fees were still well below what they would be the consumer price index was applied; (6) the Cabinet felt that the boater was still getting a fair deal for a reasonable fee; and (7) the increase was about $5.00 per fee, except that one fee was raised by $6.00.
In response to questions by Senator Pendleton, Mr. Bennett stated that: (1) while he had not checked within the last twenty-four months, his prior research showed that the bordering states’ fees were either about the same or much higher than the fees established in this administrative regulation; and (2) in his opinion, the fee increase would not cause Kentucky boaters to register their boats in neighboring states.
In response to a question by Representative Allen, Mr. Bennett state that boat fees for boats: (1) less than 16 feet would increase from $10.00 to $15.00; (2) 16 to 26 feet would increase from $14 to $19; (3) 26 to 40 feet, which included most houseboats, would increase from $20 to $ 25; (4) over 40 feet would increase from $24 to $29; and (5) with inboard motors would increase from $24 to $30.
Representative Lee stated that: (1) he had served on this Subcommittee and the Budget Review Committee for eight years; (2) the Subcommittee and Committee always had cabinets requesting fee increases; (3) the Subcommittee was always told that the particular cabinet had not had a fee increase in many years; (4) someone in the cabinets should review the fee schedules over time to determine whether: (a) the agency was keeping up with costs; or (b) the fee schedules should be increased; (5) if this was done, Cabinets: (a) could approach the General Assembly during the Regular Session; and (b) would not have to request a fee increase after the end of a session; (6) there had to be somebody who was fiscally responsible for looking at fees; (7) a determination should be made on a: (a) one year basis; (b) two year basis; or (c) five year basis; and (8) fee increases should be part of what the Cabinet presented to the budget committees so that the 138 members of the General Assembly would decide whether to increase fees.
In response to questions by Senator Roeding, Mr. Bennett stated that: (1) the Department did disclose this proposed increase to the General Assembly; (2) the proposed increase was included in the second year of the biennium; (3) the Department built its fees on hunting and fishing; (4) in 1993, the Department projected a license increase in 5 years; (5) the Department found additional federal and state funding and went 7 years without a license increase; (6) the Department had not heard of any concerns about the fee increases for the smaller boat versus the $100,000 house boat; and (7) the Department had notified the Kentucky Marina Association for the last several summers about what the fees would be.
This administrative regulation was amended as follows: (1) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amend to comply with the drafting requirements of KRS 13A.222(4); and (2) Section 1 was amended to correct minor typographical errors.
This administrative regulation was approved as amended, with Senator Roeding and Representative Allen voting no.
Cabinet For Economic Development: Department of Financial Incentives: Kentucky Enterprise Zone Program: Economic Development
306 KAR 1:010. Definitions. Phyllis Bruning, Director, Kentucky Enterprise Zone Program, and Richard Dobson, Tax Consultant, Revenue Cabinet, represented the Program.
This administrative regulation was amended as follows:(1) the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to correct statutory citations; and (2) the TITLE, the NECESSITY, FUNCTION, AND CONFORMITY paragraph, and Section 1 were amended to comply with the: (a) format requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4).
Justice Cabinet: Department of Corrections: Division of Adult Institutions: Office of the Secretary
501 KAR 6:190 & E. Approval process for mental health professionals performing comprehensive sex offender presentence evaluations. ("E" expires 10/18/00) Amy Barker, Staff Attorney; Dr. Rick Purvis, Director, Division of Mental Health, Department of Corrections; and Dr. Gary Dennis, Deputy Commissioner, and Chair of the Sex Offender Risk Assessment Advisory Board, represented the Department.
This administrative regulation was amended as follows: (1) the TITLE and the NECESSITY, FUNCTION, AND CONFORMITY paragraph were amended to clarify that this administrative regulation governed the approval process for court-ordered comprehensive sex offender presentence evaluations and treatment of sex offenders; (2) Section 1 was amended to delete the definitions of: (a) court-ordered; (b) supervised provider; and (c) supervisor; (2) Sections 2 and 3 were amended to: (a) clearly establish the required qualifications and duties of approved providers; and (b) delete provisions regarding supervised providers; (3) Section 4 was amended to: (a) clarify approval procedures; and (b) require the board to notify an applicant of its decision to approve or deny an application within ninety (90) days, rather than sixty (60) days, of receipt of the application; (4) Section 6 was amended to: (a) delete supervision requirements; and (b) establish practicum requirements; and (5) Sections 1 through 5 were amended to comply with the: (a) format requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4).
501 KAR 6:200 & E. Comprehensive sex offender presentence evaluation procedure. ("E" expires 10/18/00) In response to questions by Senator Roeding, Ms. Biggs stated that the amendment deleted the definition of threat to public safety because the: (1) definition limited the threat to sexual offenses; and (2) Cabinet realized the statute discussed both a: (a) risk of reoffending for sexual offenses; and (b) a broader threat to public safety.
Subcommittee staff stated that the definition also was not needed because Section 2 clarified the factors to be used to determine if there was a threat to public safety.
This administrative regulation was amended as follows: (1) Section 1 was amended to delete the definition of “threat to public safety”; (2) Section 2 was amended to clearly establish the factors to consider when determining if a sex offender posed a threat to public safety, including the sex offender’s statements or indications of harm directed to another; (3) a new Section was created to clearly establish the requirements of the evaluation report; and (4) Sections 1 through 3 were amended to comply with the: (a) format requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4).
Education, Arts, And Humanities Cabinet: Kentucky Board of Education: Kentucky Department of Education: Bureau of Management Support Services: Office of Chief State School Officer
701 KAR 5:110. Use of local monies to reduce unmet technology need. Kevin Noland, Acting Commissioner and General Counsel, represented the Department.
Mr. Noland stated that this administrative regulation: (1) provided more flexibility for local school districts that received state funds to help buy computers for schools; and (2) allowed the purchases to be made on an allowable basis in order to replace outdated computers.
In response to a question by Senator Roeding, Mr. Noland stated that an example of alternative technologies were computers used at the Kentucky School for the Blind because the computers: (1) were not standard; and (2) used alternative technology to allow students who had serious visual impairments to use the computers.
This administrative regulation was amended as follows: (1) the RELATES TO paragraph was amended to correct a statutory citation; (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 5 were amended to reinsert existing language that was inadvertently omitted; and (3) Section 5 was amended to comply with the incorporation by reference requirements established in KRS 13A.2251.
Board of Education: Department of Education: Division of Exceptional Children Services: Exceptional and Handicapped Programs
707 KAR 1:340. Procedural safeguards and state complaint procedures. Kevin Noland, Acting Commissioner and General Counsel, and Barbara Kibler represented the Department. Patricia Williams and Dr. Keith Omer of the Union County School System appeared before the Subcommittee to speak in favor of this administrative regulation. Carol Grissett and Carol Long appeared before the Subcommittee to speak against this administrative regulation.
Mr. Noland stated that: (1) this administrative regulation permitted parents unsatisfied with the special education plan for their disabled child to: (a) object; and (b) appeal any determination regarding the plan; (2) the Department had been through a year long process with input from hundreds of people, including people from local school districts; (3) this administrative regulation was supported by most parents and educators; (4) this administrative regulation was originally deferred at the suggestion of Subcommittee staff to permit the Board to consider some minor substantive changes that clarified the requirements of federal law; (5) the Kentucky Board of Education met this morning and approved the changes; (6) the proposed changes did not exceed federal requirements; (7) the Department checked with other groups interested in this administrative regulation including the: (a) Kentucky School Boards Association; (b) Association of Special Education Directors; and (c) Local Superintendents Advisory Council; and (8) all of these groups were in agreement with the proposed amendments.
In response to a question by Senator Long, Mr. Noland stated that: (1) he was not familiar with the group that had faxed concerns to him; (2) the group had referenced $60 million of federal funds that the State received to help local school districts serve students with disabilities; (3) Kentucky had already received the money; (4) the United States Department of Education had: (a) reviewed Kentucky's plan; and (b) given conditional approval; and (5) loss of the federal money was not a problem.
In response to a question by Senator Long, Mr. Noland stated that the State of Kentucky was in compliance with federal law to receive all of the money to which it was entitled.
Subcommittee staff stated that: (1) the proposed amendments brought the Department into full compliance with federal requirements; and (2) a requirement that parents have a right to mediation if there was disagreement with the Board of Education was: (a) one of the main provisions; and (b) now included in this administrative regulation.
In response to questions by Senator Long, Mr. Noland stated that: (1) these administrative regulations made reference to KRS Chapter 13B which was a uniform administrative hearing process; (2) those statutes: (a) set out all hearing rights; and (b) provided for an emergency hearing if necessary; (3) this administrative regulation was in compliance with federal law; (4) if there was a conflict between KRS Chapter 13B and federal requirements, the federal law would control; (5) the Department was prohibited from repeating KRS Chapter 13B in this administrative regulation; and (6) this administrative regulation referred to applicable statutes when necessary.
Subcommittee staff stated that: (1) Mr. Noland was correct; (2) the mediation provisions included notice of the right to attorney fees; (3) 34 CFR 300.513, which was cited in Senator Long's fax, referred to attorney fees that could be awarded by a federal court in a civil action; and (4) the provision for attorneys fees in 34 CFR 300.513: (a) was not applicable to the Department; and (b) did not need to be cited in this administrative regulation.
In response to a question by Chairman Arnold, Dr. Omer stated that: (1) he served as Deputy Superintendent with Union County Schools; (2) he wanted to speak in favor of this administrative regulation; (3) their superintendent, director of special education, teachers, and parents had been greatly involved in the process; (4) there was a consensus that this was something that needed to be done; (5) they felt very positive about the changes; (6) he knew that those in the field did not always necessarily agree with everything the Department did, but felt that the Department had gone above and beyond the federal requirements; and (7) he: (a) commended the Department on the job they did; and (b) urged the Subcommittee to approve this administrative regulation.
Patricia Williams stated that: (1) she was: (a) from Muhlenberg County; and (b) the parent of a child with multiple disabilities; (2) her child's disabilities were mild; (3) she was completing her third term on the state advisory panel for exception children, whose purpose was to help advise the Department on matters relating to children with disabilities; (4) she had been at every public hearing since 1997; (5) the message she heard was that people wanted administrative regulations: (a) quickly; and (b) that did not exceed federal law; (6) she also served as chair of the rules, regulations, and federal report committee of the panel; (7) the panel had been through these administrative regulations with a fine-tooth comb more than once; (8) in order to implement the federal law, Kentucky needed this administrative regulation; (9) as a parent, she wished she could change some things to better serve her child; (10) the law was written to educate all children with disabilities and not just her child; (11) if there were things that parents did not feel their children were receiving to educate them as they deserve, the parents had the due process protections established in this administrative regulation; and (12) she felt like this administrative regulation was written for the good of all children in Kentucky.
In response to questions by Senator Pendleton, Ms. Williams stated that: (1) the advisory panel held: (a) four meetings per year; (b) two half-day meetings; and (c) a public forum or hearing at each of those meetings; (2) the meetings were advertised; (3) the panel traveled across the state to hold the meetings; (4) the panel also conducted a public hearing at the fall conference in Louisville for: (a) parents; (b) teachers; and (c) administrators of children with disabilities; (5) a hearing was conducted at the parent-professional conference; (6) occasionally the panel was invited to other conferences to conduct a hearing or to listen to participants; (7) they had very good participation from: (a) parents; and (b) local school districts; (8) their panel was required by IDEA to be composed of at least 50% of: (a) parents of students with disabilities; or (b) people with disabilities; (9) currently, more than half the panel was composed of: (a) parents of students with disabilities; or (b) people with disabilities; (10) at their June meeting the full panel unanimously voted to support these administrative regulations as written; and (11) the few proposed amendments to 707 KAR 1:340 made it even better.
In response to questions by Representative Lee, Ms. Williams stated that: (1) she understood: (a) the appeals rights; and (b) she had the right to refuse if: 1. she was at an ARC meeting; and 2. the majority decided her child needed self-contained placement; (2) they had to provide her with the form to request a due process hearing; (3) the hearing requirements were very specific in this administrative regulation; (4) she understood that: (a) the school district must offer mediation; and (b) she did not have to accept it; (5) this administrative regulation was clear: (a) regarding the requirements of the mediator; and (b) that the mediator could not be a state or school district employee; (6) she thought that within thirty days the department had to assign a hearing officer; (7) there were provisions for an extension of time, but it was very specific that it could only be issued under extenuating circumstances; and (8) she did not agree that the process was an open-ended process.
In response to questions by Representative Lee, Subcommittee staff stated that: (1) Ms. Williams was correct that this was not an open-ended process; (2) there had to be a decision made within a specified time period; (3) KRS Chapter 13B provided certain time periods; (4) there were federal time requirements; (5) if there was a conflict in the state and federal time provisions, the federal requirements would control; (6) the process would never be open-ended; (7) some of the proposed amendments cross-referenced federal provisions, to put parents on notice of those rights; (8) it was not necessary to repeat all of the federal requirements in this administrative regulation; and (9) none of the rights of the parent were lost or omitted in these administrative regulations simply because it did not repeat the federal regulations.
Carol Grissett stated that: (1) the federal regulations required the state to implement policies and procedures; (2) Kentucky had only conditional approval for the federal money; (3) the other administrative regulations were probably 90% verbatim from the federal regulations; (4) she did not think that the: (a) procedures for parents and children were included intact; and (b) provisions for attorney's fees were made clear for parents; (5) there were a lot of conflicts between: (a) KRS Chapter 13B; and (b) the federal regulations; (6) if parents did not know their rights: (a) many of the procedural safeguards would not be followed; and (b) their child may not get that to which he was entitled; and (7) due process was: (a) not paperwork for teachers; and (b) a parent's rights to pursue their child's right to an education.
Carol Long stated that she thought that: (1) what the Subcommittee heard earlier from Ms. Williams was the testimony of someone who was being paid by the Department; (2) the Department had control over her; and (3) the Subcommittee needed to hear from real parents who were not employees.
In response to a question by Senator Long, Mr. Noland stated that: (1) there were about 30 hearings held all over the state annually; (2) if a parent disagreed with the school, federal law provided that during the appeal challenging a change, there was a "stay-put provision"; (3) by this provision, the child stayed in the same educational placement until there was a final decision; (4) of the approximate 30 hearings annually, only a handful went to the next level; (5) annually, they had probably 1 or 2 cases that wound up in court; and (6) the Department did not include in this administrative regulation directions for the courts, which were established in federal law, because as a state agency, the Department could not tell the courts what to do.
In response to questions by Representative Lee, Mr. Noland stated that: (1) this administrative regulation included provisions that federal law required the Department to provide as standards for local school districts in serving students with disabilities; (2) federal law and this administrative regulation required that at the beginning and every time there was a meeting, the parent must be given a copy of the policy and procedures; (3) the current comments related to the implementation of the law at the local levels, which sometimes was not done correctly; and (4) if the Department received a complaint, the Department would try to correct any problems.
Ms. Grissett stated that: (1) she: (a) felt that parents were not being given all of their procedural safeguards and rights; and (b) wanted parents to have their due process rights; and (2) if the rights were not included in the booklet, parents would not know about them.
In response to questions by Senator Roeding, Mr. Noland stated that: (1) the federal department of education had given all of the states a conditional approval; (2) Kentucky was not unique; (3) the federal department of education had reviewed some of Kentucky’s administrative regulations, but not all of them; and (4) conditional approval was: (a) not a reflection of the quality of what had been done to this point; and (b) what was given to everyone.
In response to questions by Senator Long and Chairman Arnold, Mr. Noland stated that the Department would: (1) include a sheet that explained the parents' rights; and (2) require the school districts to acknowledge that they have complied with those provisions.
This administrative regulation was amended as follows: (1) Section 3 was amended to: (a) cross-reference applicable federal regulations; and (b) delete provisions regarding parental waiver of procedural safeguards; (2) a new Section 6 was amended to establish mediation rights, in accordance with 34 CFR 300.506; (3) a new Section 15 was created to incorporate by reference the required form, in accordance with KRS 13A.2251; and (4) the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 3 and 7 through 14 were amended to comply with the: (a) format requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4).
WORKFORCE DEVELOPMENT CABINET
Department for Adult and Technical Education
Personnel System for Certified and Equivalent Employees
780 KAR 3:035. Employee evaluations. Sherry Deatrick, General Counsel, represented the Department.
This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to correct statutory citations; (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220(3)(f); and (3) Section 2(1) was amended to comply with the incorporation by reference requirements established in KRS 13A.2251.
Public Protection And Regulation Cabinet: Department of Financial Institutions: Administration
808 KAR 1:150. Establishment and relocation of bank branches or offices. Rick Jones, General Counsel, and David Reichert, Staff Attorney, represented the Department.
Subcommittee staff stated that: (1) Senate Bill 169: (a) authorized a qualified state bank to engage in any banking activity in which the bank could engage in other states if the bank met specified conditions; and (b) did define “banking activities”; and (2) because other states permitted statewide branching as part of their authorized banking activities, this administrative regulation was drafted to permit qualified state banks in Kentucky to also engage in statewide branching.
In response to a question by Chairman Arnold, Representative Bruce stated that: (1) during the 2000 Regular Session, the General Assembly passed two bills relevant to this administrative regulation: (a) House Bill 377; and (b) Senate Bill 169; (2) House Bill 377 authorized statewide banking; (3) Senate Bill 169 stated that state banks could do anything that a national bank was authorized to do; (4) because national banks have the authority to establish branch banking, he believed Senate Bill 169 gave that same authority to banks in Kentucky; (5) the Department had promulgated this administrative regulation to clarify Senate Bill 169; (6) a staff person on the Banking and Insurance Committee who had stated that the banks did not have this authority should not be making policy decisions; (7) the legislative intent to permit statewide branching was evident in the passage of House Bill 377 and the provisions of Senate Bill 169; and (8) this administrative regulation should be approved as amended.
This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to correct statutory citations; (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220(3)(f); (3) the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 1 were amended to delete references to loan production offices to comply with KRS 287.820; and (4) Sections 1, 2, 3, and 4 were amended to comply with the drafting requirements of KRS 13A.222(4).
Securities
808 KAR 10:030. Conduct of broker-dealers, agents, and employees; investment advisers and representatives. Colleen Keefe, Director, represented the Department.
This administrative regulation was amended as follows: (1) the RELATES TO paragraph was amended to correct statutory citations; (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220(3)(f); (3) Section 5 was amended to clearly establish the requirements governing multiple registration; (4) Sections 2, 3, 4, and 5 were amended to: (a) correct statutory citations and cross-references to other administrative regulations; and (b) comply with the: 1. format requirements of KRS 13A.220(4); and 2. drafting requirements of KRS 13A.222(4); and (5) a new Section 6 was created to incorporate by reference the required application form.
808 KAR 10:040. Dishonest or unethical practice defined. This administrative regulation was amended as follows: (1) the TITLE and Sections 2, 3, and 4 were amended to clarify that this administrative regulation provided examples of dishonest or unethical practice; (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to move language that established substantive provisions to a new Section of the administrative regulation; and (3) Sections 2, 3, 4, and 5 were amended to comply with the: (a) format requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4).
Department of Housing, Buildings and Construction: Division of Building Codes Enforcement: Kentucky Building Code
815 KAR 7:105. Kentucky Building Code/1997. Judith Walden, General Counsel, represented the Department.
In response to questions by Senator Roeding, Ms. Walden stated that: (1) this administrative regulation: (a) increased the plan review fees by one-half cent per square foot; (b) did not increase the costs of single family residential dwellings, which were not reviewed by the Department; and (c) applied to plan review fees for buildings that were large enough to be reviewed by the Department, including residential structures that had more than three floors or 20,000 square feet; and (2) plans could be reviewed locally in Lexington, Louisville, Northern Kentucky, and other areas, rather than by the Department.
Senator Long stated that the Department needed this money to hire additional people and increase the speed at which plans were reviewed by the Department.
Ms. Walden stated that: (1) House Bill 244, enacted during the 2000 Regular Session, required the Department to increase the fees by one-half cent to raise money to: (a) train local building officials; (b) increase their competency; and (c) increase their uniform understanding of the administrative regulations; (2) this fee would generate up to $150,000 for the Department to use; and (3) the Department was actively involved in training qualified local officials to take over some of its responsibilities in local communities so that plans could be approved locally, rather than by the Department.
This administrative regulation was amended as follows: Section 1 was amended to correct typographical errors.
Plumbing
815 KAR 20:130. House sewers and storm water piping; methods of installation. This administrative regulation was amended as follows: (1) Section 12(2) was amended to change an existing reference from “the effective date of this administrative regulation” to “August 1, 1996”, which was the effective date of that particular change when it was originally made; and (2) Sections 5, 8, 10, 12, 13, 14, 16, 18, 19, 23, 24, 26, and 29 were amended to comply with the: (a) format requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4).
815 KAR 20:150. Inspection and tests. This administrative regulation was amended as follows: (1) the RELATES TO paragraph was amended to correct statutory citations; (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220(3)(f); and (3) Sections 3, 4, 5, 6, 10, and 12 were amended to comply with the: (a) format requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4).
815 KAR 20:191. Minimum fixture requirements. This administrative regulation was amended as follows: the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 6, 7, and 9 through 17 were amended to comply with the: (1) format requirements of KRS 13A.220(4); and (2) drafting requirements of KRS 13A.222(4).
Cabinet For Health Services: Department for Public Health: Radiology
902 KAR 100:010. Definitions. John Volpe, Manager, Radiation Health and Toxic Agents Branch, and Vicky Jeffs, Supervisory, Radioactive Materials Program, represented the Department.
In response to questions by Representative Bruce, Mr. Volpe stated that while the Department did not have regulatory authority over the Department of Energy facilities in Paducah, the Department: (1) was responsible for protecting the public health of citizens outside the federal property boundaries; and (2) had input into the activities at the federal plant.
This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY paragraph was amended to correct a statutory citation; and (2) the TITLE, the NECESSITY, FUNCTION, AND CONFORMITY paragraph, and Section 1 were amended to comply with the: (a) format requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4).
902 KAR 100:040. General provisions for specific licenses. This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to correct statutory citations; and (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 3 to 5, 7 to 9, and 12 to 16 were amended to: (a) clarify provisions; and (b) comply with the: 1. format requirements of KRS 13A.220(4); and 2. drafting requirements of KRS 13A.222(4).
902 KAR 100:041. Quantities of radioactive materials requiring consideration of the need for an emergency plan. This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to correct statutory citations; and (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 4 were amended to: (a) clarify provisions; and (b) comply with the: 1. format requirements of KRS 13A.220(4); and 2. drafting requirements of KRS 13A.222(4).
902 KAR 100:042. Decommissioning and financial surety. This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to correct statutory citations; and (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 16 were amended to: (a) clarify provisions; and (b) comply with the: 1. format requirements of KRS 13A.220(4); and 2. drafting requirements of KRS 13A.222(4).
Department for Medicaid Services: Division of Physical Health: Medicaid Services
907 KAR 1:102. Advanced registered nurse practitioner services. Karen Doyle, Commissioner's Office, Dr. Louis Moore, Medicaid Medical Director, and Debbie Green, Branch Manager, Physical Health, represented the Department.
In response to questions by Representative Bruce, Ms. Doyle stated that: (1) this administrative regulation: (a) did not apply to Medicare; and (b) applied to Medicaid; and (2) the Department: (a) had several obsolete training manuals; and (b) wanted to: 1. update their policies; and 2. combine them into one administrative regulation.
In response to questions by Senator Roeding, Ms. Doyle stated that: (1) an ARNP in independent practice could bill Medicaid directly on their own; and (2) an ARNP who was a salaried nurse working in a hospital could not: (a) double dip; or (b) bill Medicaid for working at the hospital.
In response to questions by Senator Roeding, Ms. Doyle stated that this administrative regulation complied with the state law passed in 1998 that permitted ARNPs to: (1) act as independent practitioners if they were enrolled as a Medicaid provider; and (2) bill independently.
In response to questions by Representative Lee, Ms. Doyle stated that an ARNP could not perform any service outside the scope of licensure.
This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY paragraph and Section 3(5) were amended to correct statutory citations; (2) Section 1 was amended to: (a) cross-reference the statutory definition of “advanced registered nurse practitioner”, rather than defining the term in this administrative regulation, as required by KRS 13A.222(4)(d); (b) establish definitions for : 1. emergency medical condition; 2. emergency services; 3. medically necessary; 4. medical necessity; and 5. prudent layperson standard; and (c) delete definitions for: 1. established patient; 2. locally infiltrated anesthesia; and 3. regional anesthesia, because those terms were no longer used in this administrative regulation; (3) Section 3 was amended to clarify that: (a) services furnished by an ARNP shall be medically necessary; (b) the cost of specified injectables shall be reimbursed if administered in a physician or independent practitioner’s office; and (c) the cost of injectables not specified in this administrative regulation shall be reimbursed through the pharmacy program established in 907 KAR 1:019, Section 2; (4) Section 3 was amended to establish the standard for determining the existence of an emergency medical condition and the need for emergency services; and (5) Sections 1 through 4 were amended to comply with the: (a) format requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4).
907 KAR 1:104. Reimbursement for advanced registered nurse practitioner services. In response to a question by Senator Roeding, Ms. Doyle stated that: (1) the Department had a public hearing; (2) the Department had not received any comments from the nursing association; and (3) it appeared that everybody was in agreement with the rates.
In response to a question by Chairman Arnold, Dr. Moore stated that: (1) an ARNP would need to be pre-authorized only for selective services; and (2) the nurse would not need a prior authorization to treat someone.
In response to a question by Senator Roeding, Ms. Doyle stated that a list of services was already in place.
In response to questions by Chairman Arnold and Senator Roeding, Ms. Doyle stated that: (1) ARNPs already received 75% of what a physician received; and (2) if a service was within the ARNP’s scope of practice, the ARNP could provide that service but would not be paid more than 75% of what a physician would be paid.
This administrative regulation was amended as follows: (1) Section 1 was amended to: (a) cross-reference the statutory definition of “advanced registered nurse practitioner”, rather than defining the term in this administrative regulation, as required by KRS 13A.222(4)(d); (2) Section 2(2) was amended to clarify that an ARNP employed in a hospital-type setting shall not be reimbursed directly for services provided in that setting while operating as an employee; and (3) Sections 2 and 3 were amended to comply with the drafting requirements of KRS 13A.222(4).
The Subcommittee determined that the following administrative regulations complied with statutory authority:
Justice Cabinet, Department of Corrections: Division of Adult Institutions: Office of the Secretary
501 KAR 6:030. Kentucky State Reformatory. Tamela Biggs, Staff Attorney, represented the Department.
501 KAR 6:120. Blackburn Correctional Complex. In response to questions by Senator Roeding, Ms. Biggs stated that: (1) this administrative regulation applied only to Blackburn; (2) the Department did not regulate what the counties did in their facilities; (3) the counties promulgated their own regulations; (4) the Department assisted the jail standards commission in promulgating its administrative regulations; (5) the county jailers followed those administrative regulations; (6) the Department had its own individual policy and procedures which each institution was required to follow; and (7) each state institution promulgated procedures that were directed specifically at: (a) their institution; and (b) the type of inmate population they had.
In response to a question by Senator Roeding, Ms Biggs stated that: (1) the Department changed some of the times and dates for visitation at Blackburn to make it more accessible for the attorneys; and (2) the Department simply clarified the types of insurance that were already available to employees.
501 KAR 6:999. Corrections secured policies and procedures. Pursuant to KRS 61.815(2) and KRS 61.810(1)(i) and (k), and KRS 197.025(5), the Subcommittee went into closed session to review 501 KAR 6:999, Secured policies and procedures.
Department of Criminal Justice Training: General Training Provision
503 KAR 3:030. Training charges. Stephanie Bingham, General Counsel, Ken Schwendeman, Director, Administrative Division, and John Bizzack, Commissioner, represented the Department.
In response to a question by Senator Roeding, Ms. Bingham stated that: (1) this administrative regulation related to training charges; and (2) 503 KAR 1:140 relating to psychological testing had been deferred.
In response to questions by Senator Roeding, Mr. Schwendeman stated that: (1) the Department had extended free tuition to many more agencies; (2) there were about 40 regular clients, including 27 federal agencies; (3) the Department exempted those persons who were required to be certified; (4) the people that were left were not a part of the Department’s normal client base and would be charged; (5) the Department was actually decreasing its revenue by about $120,000 a year; and (6) if the FBI or Secret Service attended training, the Department thought they should pay what it actually cost the State.
In response to questions by Chairman Arnold, Mr. Schwendeman stated that: (1) there were 3,200 jailers and deputy jailers in the state; (2) the current stipend was $3,100, plus a pension contribution; (3) the average pension contribution rate was 16.7%; (4) it would be a 10 million or 11 million dollar increase per year to include Jailers in the cleft fund; (5) the revenue source for funding the cleft program was the restricted surtax on the insurance premiums on property at risk in Kentucky; (6) the revenue stream was divided with the fire fighters; (7) currently, there was a 1.5% tax on the cost of the policy and premium; (8) to increase this, the contribution rate would be at 33%; (9) the surtax would have to be increased from 1.5% to 2%; and (10) on a $100.00 premium, the tax amount would be increased from $1.50 to $2.00.
Education, Arts And Humanities Cabinet: Board of Education: Department of Education: Division of Exceptional Children Services: Exceptional and Handicapped Programs
707 KAR 1:011. Repeal of 707 KAR 1:015, 707 KAR 1:040, 707 KAR 1:045, 707 KAR 1:090, 707 KAR 1:100, 707 KAR 1:110, 707 KAR 1:120, 707 KAR 1:130, 707 KAR 1:140, 707 KAR 1:150, 707 KAR 1:160, 707 KAR 1:170, 707 KAR 1:180, 707 KAR 1:190, 707 KAR 1:200, 707 KAR 1:210, 707 KAR 1:220, 707 KAR 1:230, 707 KAR 1:240, 707 KAR 1:250, 707 KAR 1:260. Kevin Noland, Acting Commissioner and General Counsel, represented the Department.
Department of Housing, Buildings and Construction: Division of Building Codes Enforcement: Plumbing
815 KAR 20:020. Parts or materials list. Judith Walden, General Counsel, represented the Department.
Office of State Fire Marshal: Electrical Inspectors
815 KAR 35:015. Certification of electrical inspectors.
Cabinet For Health Services: Department for Public Health: Radiology
902 KAR 100:036. Repeal of 902 KAR 100:035. John Volpe, Manager, Radiation Health and Toxic Agents Branch, and Vicky Jeffs, Supervisory, Radioactive Materials Program, represented the Department.
Department for Medicaid Services: Division of Physical Health: Medicaid Services
907 KAR 1:407. Repeal of 907 KAR 1:200, 907 KAR 1:210, 907 KAR 1:406, 907 KAR 1:408, and 907 KAR 1:476. Karen Doyle, Commissioner's Office, Dr. Louis Moore, Medicaid Medical Director, and Debbie Green, Branch Manager, Physical Health, represented the Department.
Cabinet For Families And Children: Department for Community Based Services: Division of Policy Development: Family Support: Child Support
921 KAR 1:380. Child Support Program application process. Rosanne Barkley, Policy Analyst, and Phyllis Mans, Policy Development, represented the Department.
The Subcommittee and promulgating administrative bodies agreed to defer consideration of the following administrative regulations to the next meeting of the Subcommittee:
Revenue Cabinet: Department of Law: Division of Tax Policy: Sales and Use Tax; Miscellaneous Retail Transactions
103 KAR 28:140E. Telephonic and telegraphic communications and services. ("E" expires 12/28/00) Dana Mayton, Commissioner of Law, and Richard Dobson, Tax Consultant, represented the Cabinet. Written comments in opposition to this administrative regulation were submitted by Keith Landry, General Attorney, BellSouth Corporation, and Anna Winsett, Attorney, AT&T Corp.
In response to questions by Senator Roeding, Ms. Mayton stated that: (1) the subject of telephone access charges and their taxability under sales tax had been a point of contention between the industry and the cabinet for some time; (2) with the passage of the biennial budget, the cabinet felt that the General Assembly had conveyed its intent that these charges were taxable; and (3) the Cabinet felt that promulgation of an emergency administrative regulation was necessary to clearly establish the requirement of collecting and remitting the tax.
Senator Roeding stated that: (1) this was a new tax; (2) this particular tax was never collected from the time that authority was given; (3) all of a sudden the Cabinet wanted to collect the tax; and (4) he thought that the Cabinet was changing the intent of the legislation.
In response to questions by Senator Roeding, Ms. Mayton stated that: (1) the tax had been assessed against this industry for a number of years; (2) because of industry's argument that the Cabinet should not collect the tax, the Cabinet agreed to: (a) not collect the tax; and (b) give the 2000 Legislature the opportunity to clearly exempt these charges from tax; (3) a bill was not passed during the 2000 Regular Session of the General Assembly to exempt the tax; and (4) the Cabinet believed that the inclusion of the money in the biennial budget directed the Cabinet to collect the tax.
Senator Roeding stated that: (1) the Governor and the Revenue Cabinet were collecting $82 million without legislative authority; (2) he thought the Cabinet was overstepping its legislative authority; and (3) if the governor had not vetoed Senate Bill 207 this would not be a problem.
Senator Long stated that: (1) in all fairness to the Revenue Cabinet, the General Assembly passed a budget using this money; (2) included in the budget was: (a) $42 million for the second year; and (b) $39 million for this year; (3) the money was necessary to balance the budget; (4) if the tax was not collected, there would have to be some significant cuts; and (5) he did not think the Revenue Cabinet was at fault for promulgating an emergency administrative regulation.
Senator Roeding stated that: (1) he objected because he thought this emergency regulation: (a) was deficient; and (b) reflected a complete change in the Revenue Cabinet’s long-standing position regarding sales tax treatment of telephone access and intercommunications services; (2) since AT&T's divestiture in 1984, the Revenue Cabinet took the position that they were not subject to Kentucky sales tax; and (3) this position was documented in: (a) Revenue Circulars published by the Revenue Cabinet; and (b) letters from the Cabinet to representatives of telecommunications companies.
In response to a question by Chairman Arnold, Ms. Mayton stated that the Cabinet would agree to the Subcommittee’s request to defer consideration of this administrative regulation.
The Subcommittee approved a motion by Senator Long, seconded by Representative Bruce, to defer this administrative regulation, with: (1) Senators Long and Pendleton, and Representatives Bruce, Lee, and Arnold voting to defer this administrative regulation; and (2) Senator Roeding and Representative Allen voting not to defer this administrative regulation.
Board of Barbering
201 KAR 14:180. License fees, examination fees, renewal fees and expiration fees.
Justice Cabinet: Department of Criminal Justice Training: Kentucky Law Enforcement Council
503 KAR 1:140E. Peace officer professional standards. ("E" expires 12/28/00)
Education, Arts, And Humanities Cabinet: Kentucky Board of Education: Kentucky Department of Education: Office of Special Instructional Services: Fiscal Management
705 KAR 2:140E. Equalization of funding for locally operated area vocational centers and vocational departments.
Workforce Development Cabinet: Department for Adult and Technical Education: General Administration
780 KAR 1:010. 2001-2004 program plan.
Management of the Kentucky TECH System
780 KAR 2:010. Administration of vocational-technical education schools.
780 KAR 2:011. Repeal of administrative regulations in 780 KAR Chapter 2.
780 KAR 2:030. Steering and advisory committees for area technology centers primarily serving secondary students.
780 KAR 2:040. Live work projects.
780 KAR 2:060. Discipline of students.
780 KAR 2:110. Student medical and accident insurance.
780 KAR 2:140. Tuition and fees.
Instructional Programs
780 KAR 4:010. General standards.
780 KAR 4:011. Repeal of administrative regulations in 780 KAR Chapter 4.
780 KAR 4:050. Certificate requirements for Kentucky TECH students.
Veterans' Approval Agency
780 KAR 5:011. Repeal of administrative regulations in 780 KAR Chapter 5.
Facilities and Equipment of the Kentucky TECH System
780 KAR 7:010. Definitions.
780 KAR 7:011. Repeal of administrative regulations in 780 KAR Chapter 7.
780 KAR 7:020. Area technology center facility standards.
780 KAR 7:040. Facility maintenance.
780 KAR 7:060. Equipment inventory.
Adult Education
780 KAR 9:011. Repeal of administrative regulation in 780 KAR Chapter 9.
Cabinet For Health Services: Department for Public Health: Radiology
902 KAR 100:045. Exemptions.
902 KAR 100:058. Specific licenses to manufacture, assemble, repair, or distribute products.
902 KAR 100:070. Transportation of radioactive material.
902 KAR 100:085. Exempt concentrations.
902 KAR 100:165. Notices, reports and instructions to employees.
Division of Licensing and Regulation: Office of Inspector General
906 KAR 1:110E. Critical access hospital services. ("E" expires 11/18/00)
Department for Medicaid Services: Division of Physical Health: Medicaid Services
907 KAR 1:012E. Inpatient hospital services. ("E" expires 10/18/00)
907 KAR 1:044E. Mental health center services. ("E" expires 11/18/00)
Payment and Services
907 KAR 3:066E. Nonemergency medical transportation waiver services and payments. ("E" expires 11/18/00)
Department for Mental Health and Mental Retardation Services: Mental Health
908 KAR 2:210E. Domestic violence offender treatment certification standards. ("E" expires 10/18/00)
Institutional Care
908 KAR 3:050E. Per diem rate pursuant to the “Patient Liability Act of 1978.” ("E" expires 10/18/00)
Cabinet For Families And Children: Department for Community Based Services: Division of Policy Development: Protection and Permanency: Child Welfare
922 KAR 1:300. Standards for child-caring facilities (residential and emergency shelter).
922 KAR 1:305. Licensure of child-caring facilities and child-placing agencies.
922 KAR 1:310. Standards for child-placing agencies.
922 KAR 1:380. Standards for emergency shelter child-caring facilities.
922 KAR 1:390. Standards for residential child-caring facilities.
922 KAR 1:410. Family Preservation Program.
The Subcommittee adjourned at 1:15 p.m. until September 12, 2000, at 10 a.m. in Room 149 of the Capitol Annex.