The October meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, October 10, 2000 at 10:00 AM, in Room 149 of the Capitol Annex. Representative John Arnold, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Representative John Arnold, Chairman; Senators Richard Roeding and Marshall Long; Representatives Woody Allen, James Bruce, and Jimmie Lee.
Guests: Nathan Goldman, Sharon Weisenbeck, Sue Derouen, Paula Schenk, Lisa Drexler, Kentucky Board of Nursing; Tom Bennett, Jennifer Fields, Department of Fish and Wildlife Resources; John E. Hornback, Millie Ellis, Division for Air Quality; Tamela Biggs, Brenda Priestley, Department of Corrections; Kevin Noland, Board of Education; Deborah Green, Charles Kendell, Stuart Owen, Rashmi Adi-Brown, Dennis Boyd, Jimmy D. Helton, James Carreer, Michael Littlefield, Cabinet for Health Services; Joyce Lea, Shirley Eldridge, Stephanie Brammer-Barnes, Cliff Jennings, Karen Doyle, Cabinet for Families and Children; Dandridge Walton, KAPA/KMHI; Gay Dwyer, Kentucky Retail Federation; Nancy Galvagni, Kentucky Hospital Association; Mike Mayes, Bob Barnett, Kentucky Pharmacists Association; Matt Klein, Dot Darby-Paschall, Baptist Healthcare System; Jeff Seraphine, LifePoint Hospitals; Samuel G. Carneal, Samaritan Hospital; Mark Dempsey, American Electric Power; Ronnie Pryor.
LRC Staff: Dave Nicholas, Donna Little, Stephen Lynn, Edna Lowery, Susan Wunderlich, Angela Phillips, Ellen Steinberg, Ellen Benzing.
The Subcommittee determined that the following administrative regulations, as amended by the promulgating agency and the Subcommittee, complied with statutory requirements:
Board of Nursing
201 KAR 20:056. Advanced registered nurse practitioner registration, program requirements, recognition of a national certifying organization. Nathan Goldman, General Counsel, and Sharon Weisenbeck, Executive Director, represented the Board.
This administrative regulation was amended as follows: Section 12 was amended to correct the edition dates of two items incorporated by reference.
201 KAR 20:070. Licensure by examination. This administrative regulation was amended as follows: (1) the RELATES TO paragraph was amended to correct statutory citations; and (2) Section 5(2) was amended to comply with the format requirements for the incorporation by reference section established in KRS 13A.2251.
201 KAR 20:095. Inactive nurse licensure status. 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, and 8 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 20:110. Licensure by endorsement. This administrative regulation was amended as follows: the RELATES TO paragraph was amended to correct a statutory citation.
201 KAR 20:220. Nursing continuing education provider approval. In response to questions by Senator Roeding, Mr. Goldman stated that, while this administrative regulation had been amended to provide clarity at the request of providers, the substantive provisions had not been changed.
This administrative regulation was amended as follows: (1) the RELATES TO paragraph was amended to correct statutory citations; and (2) Sections 1, 3, 5, and 6 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 20:225. Reinstatement of license. 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 1, 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 20:450. Alternative program. In response to questions by Senator Roeding, Mr. Goldman stated that the alternative program would be operated by the Board of Nursing. The Board believed the alternative program would encourage more nurses with chemical dependency problems to come forward and receive treatment. With earlier, more successful treatment, the nurses would be able to continue to work.
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) Sections 1 through 7 were amended to comply with the: (a) format requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4); and (4) a new Section 8 was created to incorporate by reference the required material.
Justice Cabinet: Department of Corrections: Sex Offender Risk Advisory Board: Office of the Secretary
501 KAR 6:020 & E. Corrections policies and procedures. Tamela Biggs, Staff Attorney, and Carol Williams, Regional Director, represented the Department.
In response to a question by Senator Roeding, Ms. Biggs stated that this administrative regulation impacted only the minimum, medium, and maximum security state facilities and would not impact the local jails.
This administrative regulation was amended as follows: (1) CPP 13.2 was amended to correspond with medical co-payment requirements established in 501 KAR 6:170; and (2) CPP 13.6, CPP 17.1, CPP 18.11 and CPP 27-30-01 were amended to comply with the drafting requirements of KRS 13A.222(4).
Education, Arts, And Humanities: Board of Education: Department of Education: Office of District Support Services: Facilities Management
702 KAR 4:160. Capital construction process. Kevin Noland, Associate Commissioner, represented the Board.
In response to a question by Senator Roeding, Mr. Noland stated that this administrative regulation was approved unanimously by the Local Superintendents Advisory Council and simply updated the required change order and contract forms used by local schools. Currently schools were using forms from 1987 and the new forms, from 1997, were recommended for usage by the American Institute of Architects.
This administrative regulation was amended as follows: (1) the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 2, 3, 5, 6, 8, and 13 were amended to comply with the: (a) format requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4); and (2) Sections 5 and 13 were amended to correct citations to federal regulations.
Office of Special Instructional Services: Fiscal Management
705 KAR 2:140 & E. Equalization of funding for locally operated area vocational centers and vocational departments. In response to questions by Senator Roeding, Mr. Noland stated that this administrative regulation was promulgated in response to House Bill 502, the budget bill enacted during the 2000 Regular Session of the General Assembly. House Bill 502 attempted to equalize the funding for locally operated area vocational centers because historically the state operated centers received better funding than the twenty-six locally operated centers. House Bill 502 increased the appropriation by $4.5 million and required the Board of Education to promulgate an administrative regulation to establish a weighted formula based on the program costs. The equalization formula established in this administrative regulation was developed by the Board in conjunction with local vocational people and superintendents. In the past, as a disincentive for local schools to send students to state operated centers, the school lost thirty percent of the state-provided funding for that child. Under House Bill 502, the thirty percent deduct was reduced to fifteen percent this year and eliminated next year. During the 2002 Regular Session, the General Assembly would decide how that should continue.
Senator Roeding stated that the Department should work with legislators to develop incentives for schools to send students to vocational education programs because those students will make better citizens if they are trained with specific skills.
This administrative regulation was amended as follows: (1) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to correct a statutory citation; and (2) Sections 1 and 2 were amended to comply with the: (a) format requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4).
Instructional Programs
705 KAR 4:041. Cooperative program standards. In response to questions by Senator Roeding, Mr. Noland stated that cooperative education programs allowed a student, with his teacher’s permission, to receive academic credit for work at a work-site if the work was related to the course and supervised by someone from the school. Kentucky has 52 state operated vocational schools and 26 vocational schools operated by local school districts. This administrative regulation ensured that Kentucky’s vocational students would receive course credit for work that related to their academic program.
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 1 was amended to comply with the: (a) format requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4).
705 KAR 4:231. General program standards for secondary career and technical education programs. This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs and Sections 15 and 16 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 3, 5, 14, and 15 were amended to comply with the: (a) format requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4).
Cabinet For Health Services: Division of Epidemiology and Health Planning: State Health Plan
902 KAR 17:050. Release of public data sets for health care discharge data. Charles Kendall, Branch Manager, represented the Cabinet.
In response to questions by Senator Roeding, Mr. Kendall stated that this administrative regulation established new charges for public data sets. The Department had not anticipated the great interest in this information by agencies and organizations, such as consulting firms and insurance companies. While the Department produced reports and made them available at no charge, some companies have approached the Department about obtaining copies of the entire data sets to run their own reports. Because the Department added value to the data and wanted to release the information in compliance with applicable law, the Department created public use data sets and promulgated this administrative regulation to recover its costs in creating those data sets.
This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to correct statutory citations; (2) Section 1 was amended to comply with statutory requirements for definitions established in KRS 13A.222(4); (3) Section 2 was amended to clarify the meaning of single copies of aggregate data; (4) the tables were amended for clarity and simplicity; and (5) Sections 3, 5, 6, and 7 were amended to comply with the: (a) format requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4).
Department for Medicaid Services: Division of Long Term Care: Medicaid Services
907 KAR 1:012 & E. Inpatient hospital services. Jimmy Helton, Secretary, and Dennis Boyd, Commissioner, represented the Cabinet.
In response to questions by Senator Roeding, Mr. Helton stated that, prior to the promulgation of this administrative regulation, the Department paid the first fourteen days of hospitalization and all days after that were carried as uncompensated care, with portions of the expenses for those days paid under the disproportionate share hospital (DSH) program. This administrative regulation proposed to discontinue the practice of putting the days in excess of fourteen under DSH and to pay those days under Medicaid. The current dispute centered on the cut-over date for this change, but did not involve this administrative regulation. The proposed change stemmed from the Department’s concerns for difficulties faced by hospitals using the DSH program, which was established by the federal government to augment payment to qualified hospitals that provided inpatient services to a disproportionate number of Medicaid recipients or other low income persons. In 1998, following passage of the balanced budget act of 1997, the federal government imposed a DSH ceiling projected from the base year of 1995, which was not a good starting point for Kentucky hospitals, and it was programmed to decrease by five percent between fiscal years 1998 and 2002. Each year since 1995, the federal allotment of DSH funds had been getting smaller. The way the Cabinet administered the DSH program was changed by the passage of Senate Bill 339, enacted during the 2000 Regular Session of the General Assembly, and by commitments the Cabinet made to the hospital industry and the legislature. Senate Bill 339 required changes in the DSH distribution methodology and specified the percentage distribution between acute care hospitals, university hospitals, and psychiatric hospitals. It also changed the criteria for receiving reimbursement for uncompensated care from 150 percent to 100 percent of the federal poverty level. While these changes would not be implemented until next year, when the changes were made, some hospitals would receive a proportionally lower amount of DSH funds than the hospitals received in the past and others may receive more. In the past, the Cabinet used DSH to pay for Medicaid recipient hospital stays that were in excess of fourteen days and uncompensated care for persons who were at or below 150% of the federal poverty level. Kentucky’s hospitals complained, rightfully so, that the available DSH fund was too small to cover these two categories of expenses because the hospitals had a certain amount of uncompensated care for services provided to poor and uninsured people. The available DSH funds were less than the expenses for that care and added to the uncompensated care were the expenses for hospital lengths of stay in excess of fourteen days. Thus, a big piece of expenses was not reimbursed for the hospitals. The Cabinet recognized this problem last year and made a commitment to the hospital industry and the General Assembly to take two actions which were designed to provide some relief for this situation. First, the Cabinet agreed to pay the federal fourth quarter DSH allotment several months sooner than usual and committed to make a one time DSH payment each year in the future, rather than making quarterly payments. The purpose of this action was to provide an infusion of money for the hospitals early in the state fiscal year. Secondly, the Cabinet committed to move the payment for hospital stays in excess of fourteen days out of DSH and into regular Medicaid. The Cabinet has wiped out the expenses for over fourteen day hospital stays and moved that under Medicaid where the stays were being totally paid for. Thus, the Cabinet had reduced by a significant amount the amount of expenses for which there was no reimbursement. The Cabinet planned and budgeted to make the fourteen day hospital stay transition on January 1, 2000 and to make payment effective for hospital admissions which occurred on or after January 1. The Cabinet picked that date in order to create additional funding for the hospitals as soon as possible. At least one hospital believed the Cabinet should have started paying on January 1 for the discharge of any patient who had been in the hospital for more than fourteen days regardless of when they were admitted. In other words, if a patient was admitted to the hospital on December 10, 1999 and discharged on January 10, 2000 with a thirty-one day hospital stay, the Cabinet intended to pay only the first fourteen days of hospitalization because the admission occurred under the old rules. The complaining hospital wanted the Cabinet to pay for the entire thirty-one day period regardless of when the patient was admitted. Under the new rules, if a patient was admitted to the hospital on January 1, 2000 and discharged on February 1, 2000 with a thirty-one day hospital stay, the Cabinet intended to pay for the entire thirty-one days. The Cabinet had only received complaints from one hospital and believed the new policy provided additional funding for all hospitals and a fair and prudent use of taxpayer money.
In response to a question by Senator Roeding, Mr. Boyd stated that the January 1 date was established in 907 KAR 1:013, not this administrative regulation. This administrative regulation governed hospital services and eliminated the fourteen day limitation.
Representative Bruce stated that he wanted to compliment the Cabinet for working with the hospitals and other interested groups to solve this problem with a short amount of money. The Cabinet has done a good job.
This administrative regulation was amended as follows: (1) a new Section 1 was created to define “medical necessity” or “medically necessary”, consistent with the definition established in 907 KAR 1:102; (2) Section 1 was amended to clarify that a weekend stay associated with a Friday or Saturday admission for an elective surgical or diagnostic procedure shall not be reimbursed unless an emergency exists; and (3) the NECESSITY, FUNCTION, AND CONFORMITY paragraph and 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).
Department for Mental Health and Mental Retardation Services: Mental Health
908 KAR 2:210 & E. Domestic violence offender treatment certification standards. Mike Littlefield, Policy Analyst and Administrative Regulation Review Coordinator, and Rashmi Adi-Brown, Sexual and Domestic Violence Program Administrator, represented the Department.
In response to a question by Senator Roeding, Mr. Littlefield stated that this administrative regulation would improve the Cabinet’s ability to protect the safety of victims. This administrative regulation was amended to clearly specify the requirements for initial certification and renewal certification of treatment providers and to provide due process requirements for informal resolutions and administrative hearings.
This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY paragraph was amended to correct statutory citations; and (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 2, 3, and 5 through 15 were amended to comply with the: (a) format requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4).
Cabinet For Families And Children: Department for Community Based Services: Division of Policy Development: Child Welfare
922 KAR 1:130. Kinship Care Program. Karen Doyle and Joyce Lea, Policy Development, represented the Cabinet.
In response to questions by Senator Roeding, Ms. Lea stated that the initial contact in the kinship program occurred between the protection and permanency social worker and the family. The social worker took the application for the program and then transferred the application to the Division of Family Support. A caseworker with the Division of Family Support made the determination of eligibility.
In response to questions by Senator Roeding, Ms. Doyle stated that this administrative regulation enhanced the Kinship Care program because it required the Cabinet to look at family members. Previously, the Cabinet had problems finding relatives to take children because the payments were low. For instance, a grandmother with a one bedroom apartment would not take a child previously because there was not enough money to permit enhancements. Under this administrative regulation, the Cabinet would provide a one-time start-up payment to the relative to help with the placement. In the previous example, the grandmother would then have assistance in moving to a larger apartment. The Cabinet was pleased with the results of this program and was currently reviewing placements to contact family members who might be interested in the program. The Cabinet does follow-up with each participant in the program.
This administrative regulation was amended as follows: (1) the RELATES TO, STATUTORY AUTHORITY, and NECESSITY, FUNCTION, AND CONFORMITY paragraphs were amended to correct statutory citations; (2) Section 4(5) was amended to establish levels of payment for start-up costs; and (3) Sections 1 through 6 and 8 were amended to comply with the: (a) format requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4).
922 KAR 1:140. Foster care and adoption permanency services. Cliff Jennings represented the Cabinet.
In response to a question by Senator Roeding, Mr. Jennings stated that this administrative regulation focused on the safety of the child first, with permanency a second goal.
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 more correctly state the necessity and function of the administrative regulation; and (3) Sections 1 through 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).
The Subcommittee determined that the following administrative regulations complied with statutory authority:
Board of Nursing
201 KAR 20:057. Scope and standards of practice of advanced registered nurse practitioners. Nathan Goldman, General Counsel, and Sharon Weisenbeck, Executive Director, represented the Board.
In response to questions by Senator Roeding, Mr. Goldman stated that he did not believe this administrative regulation exceeded statutory authority. In 1996, the General Assembly enacted legislation to permit advanced registered nurse practitioners to prescribe non-controlled substances and to require collaborative practice agreements. The ARNPs were still governed by their scopes of practice. The Kentucky Medical Association was familiar with this administrative regulation.
201 KAR 20:260. Organization and administration standards for prelicensure programs of nursing. In response to questions by Senator Roeding, Mr. Goldman stated that this administrative regulation addressed problems at nursing schools in which the administrators did not have enough time to devote to administrative duties. The Board had received complaints about school administrators and believed the time requirement established in this administrative regulation for administrators would help address those concerns.
Tourism Development Cabinet: Department of Fish and Wildlife Resources: Game
301 KAR 2:049. Small game and furbearer hunting on public areas. Tom Bennett, Commissioner, represented the Cabinet.
In response to questions by Representative Allen, Mr. Bennett stated that the Green River was located in Taylor County, near Campbellsville. This administrative regulation established an experimental pheasant hunting season to enable 300-400 hunters, using a quota-type hunt, to hunt pheasants which the Department purchased from a propagator at the request of several hunters. Indiana had a similar season for pheasant hunting and the Department wanted to try a season in Kentucky. Pheasant hunting provided another form of recreation for Kentucky’s hunters.
Natural Resources And Environmental Protection Cabinet: Department for Environmental Protection: Division for Air Quality: Attainment and Maintenance of the National Ambient Air Quality Standards
401 KAR 51:200. Regional NOx emission requirements. John Hornback, Director, Division for Air Quality; John Trout, Assistant Director, Air Pollution Control District, Jefferson County; and Millie Ellis, Regulation Development Staff, represented the Cabinet. Mark Dempsey, Governmental Affairs Manager, American Electric Power, appeared before the Subcommittee.
Mr. Dempsey stated that American Electric Power was the electric utility provider in the 20 eastern-most counties in the state. This administrative regulation mainly affected the company’s Big Sandy generating unit at Louisa, which was located on the Big Sandy River at the West Virginia border. His company had been working with the Cabinet to resolve the issues and recognized that the problems stemmed from requirements imposed by the federal EPA, not from the Cabinet. He did not want this administrative regulation found deficient because of the nonattainment issue involving Jefferson County. His problem involved three different issues: the Jefferson County nonattainment issue, which applied a statewide .25 standard; the NOx (nitrogen oxides) SIP call, which Kentucky would be required to respond to in the immediate future (with a different deadline to address the same pollutants); and federal 126 petitions, which were complaints filed by other states against Kentucky (also with a different deadline and different levels). In determining how to respond, his company wanted to continue to work with the Cabinet and to ask the Subcommittee to request the Cabinet to maintain maximum flexibility. His company had not announced its plans for compliance even though other utilities have announced their plans. His company was working on a new technology that would not be completed until the deadline passed. He understood that state flexibility did not equal flexibility at the federal level, but wanted to know how the state would implement the three or four different issues into one program.
Mr. Hornback stated that the Jefferson County air quality situation was somewhat independent of some of the other regulatory initiatives that the federal EPA had required. Kentucky was past due in obtaining the air quality standard for ozone in Jefferson County. Last year, Kentucky approached a deadline in which the EPA was prepared to move up its level of not meeting the standard to something that would cause Kentucky more stringent requirements in Jefferson County, to tighten down emission controls, to limit the ability of new facilities to move into Jefferson County, and to limit the ability of existing facilities to expand. The Cabinet discussed with EPA what was the latest acceptable date for a control strategy to reduce emissions in the Indiana and Kentucky area to meet the ozone standard and the EPA responded that May, 2003 was the latest. Because of Jefferson County’s large population, air quality issues, and impact on the state’s economy, the Cabinet was required to comply with the federal expectations. Thus, the Cabinet established a 0.25 NOx standard on power plants across Kentucky. Indiana had done the same thing with a May 2003 deadline. There were competing deadlines and different requirements that the Cabinet would promulgate in the future. As those other administrative regulations were developed, it might be possible that this administrative regulation would be amended or repealed. However, the Cabinet currently was required to have administrative regulations in place by November to achieve the NOx reduction by May 2003. Currently, there was no way to harmonize the various requirements and deadlines.
In response to a question by Chairman Arnold, Mr. Hornback stated that the federal EPA had mandated certain requirements to Kentucky and did not provide flexibility to Kentucky to determine different deadlines.
Senator Long stated that if this administrative regulation was not approved, Jefferson County would become a serious nonattainment area. Thus, this administrative regulation should be approved, with the Cabinet encouraged to work with Mr. Dempsey to solve those problems as much as possible.
Mr. Hornback stated that the Cabinet would continue to have regular discussions with American Electric Power and the Utility Information Exchange of Kentucky.
In response to questions by Representative Bruce, Mr. Hornback stated that Christian County would continue to be classified as a nonattainment area, because some facilities there had changed their levels of operation to replace old emissions with new emissions. The air quality remained the same. The Cabinet would be releasing updated information on Christian County’s air quality once the quality assurance was completed.
In response to questions by Senator Roeding, Mr. Hornback stated that this administrative regulation affected twenty-one locations which had electric generating units above 25 mega-watts of capacity. If a utility did not comply with the new requirements, it would face noncompliance issues. The emission reductions required for Jefferson County to reach attainment with the standard would provide benefits to Northern Kentucky, Hopkinsville, Elizabethtown, and other areas of Kentucky. He did not know if the coal industry would be impacted by this administrative regulation but he believed that existing technology allowed continued use of Kentucky coal.
Mr. Dempsey stated that he did not believe this administrative regulation would negatively impact the coal industry either. The problem centered on the new technology his Big Sandy plant was developing. The technology might require a couple of extra years to get to the commercial size deployment, but would be a multi-pollutant, which meant that it would remove NOx, sulfur dioxide, mercury, heavy metals, and acid aerosols. The technology cost half as much and took out more pollutants.
In response to questions by Senator Roeding, Mr. Hornback stated that the Cabinet had encouraged American Electric Power to work directly with the federal EPA regarding the federal deadlines and would be happy to participate in those discussions. There were several competing deadlines at issue. Jefferson County was required to be in attainment by 2003. The requirement for emission reductions for all utilities under the NOx SIP call was to be accomplished by 2004. The requirement under the federal 126 petitions for emissions reductions was by 2003. There was also a general requirement to meet the eight hour ozone standard at some future time. All of those deadlines impacted American Electric Power and were established by the federal government. The Cabinet could not independently change those dates without the assistance of the federal EPA. He would ask Secretary Bickford if the state could request an extension from EPA based on the proposed technologies that would produce even cleaner air. The May 2003 deadline was a more stringent deadline than other federal deadlines, but it was a deadline established by the federal government to address problems in Jefferson County. This administrative regulation was not more stringent than federal expectations for the Louisville attainment area, but was more stringent than the NOx SIP call deadline. The timing of the different regulatory requirements differed and resulted in different deadlines as well.
In response to questions by Senator Roeding, Mr. Trout stated that the Cabinet was not able to attain the ozone standard by making changes only in Jefferson County. To demonstrate attainment in Jefferson County, the Cabinet had to implement the changes statewide. The federal 126 petitions involved states located away from Kentucky that complained about the effect of Kentucky’s emissions on their states. The reduction of emissions statewide would benefit the entire state and allow Jefferson County to become an attainment area. Jefferson County had made many changes to improve its air quality, but needed a statewide effort to solve Louisville’s ozone problem.
In response to questions by Senator Roeding, Mr. Hornback stated that he did not believe this administrative regulation would result in utility rate increases this year. Expenses incurred over the next three years might translate into some electrical rate increases, but those increases would not be large. While Governor Patton was concerned about some early estimates of a twenty percent rate increase, the utilities have refined the numbers for this requirement and the NOx SIP call. The current figure was less than five percent for this and the overall NOx SIP call programs. The Cabinet could not defer consideration of this administrative regulation because the federal EPA had required implementation by November. His staff has held several discussions with EPA about competing programs and deadlines and the EPA had not demonstrated any flexibility. Some of the requested changes would require amendments by Congress to the Clean Air Act, rather than approval by the EPA. If this administrative regulation was not approved by November, Jefferson County’s situation would be jeopardized.
Mr. Dempsey stated that he agreed with Mr. Hornback and that this administrative regulation needed to be approved.
In response to questions by Representative Bruce, Mr. Hornback stated that the emission reductions were designed to solve a problem in Jefferson County, but would provide benefits to Shelbyville, Northern Kentucky, Hopkinsville, and other areas of Kentucky that had problems with ozone under the eight hour ozone standard. This administrative regulation improved Kentucky’s plight for air quality and would provide better air quality for all Kentucky citizens.
In response to questions by Representative Bruce, Mr. Trout stated that LG&E would be putting controls on some of its units but would not be changing its coal. This administrative regulation permitted averaging so that not every unit had to have a very high level of control in order for the system to meet the .25 average. Many companies would be required to meet a .15 limit in the 2003 timeframe, which was lower than the .25 limit established by this administrative regulation.
In response to questions by Chairman Arnold, Mr. Hornback stated that Secretary Bickford was very sensitive to these issues and the Cabinet would react to any flexibility that was provided by the EPA. A small producer of emissions would not be impacted by this administrative regulation. A larger facility, such as a large chemical plant or other facility that had above one hundred tons a year of emissions, would be impacted by the control level requirements if the facility was located in a nonattainment area. The air quality in other areas of the state would improve as a result of this administrative regulation.
Without objection, this administrative regulation was approved.
Education, Arts, And Humanities: Board of Education: Department of Education: Office of District Support Services: School Administration and Finance
702 KAR 3:090. Depository bond, penal sum. Kevin Noland, Associate Commissioner, represented the Board.
702 KAR 3:110. Document filing dates.
Office of Special Instructional Services: Fiscal Management
705 KAR 2:121. Repeal of 705 KAR 2:120.
Instructional Programs
705 KAR 4:052. Repeal of 705 KAR 4:051. In response to a question by Senator Roeding, Mr. Noland stated that 705 KAR 4:051 applied to students with disabilities who were placed in separate programs. Now, the schools mainstreamed those students into regular vocational programs, so this administrative regulation was no longer needed.
The Subcommittee and promulgating administrative bodies agreed to defer consideration of the following administrative regulations to the next meeting of the Subcommittee:
Council On Postsecondary Education: Nonpublic Colleges
13 KAR 1:030E. Campus security.
Public Education Institutions
13 KAR 2:100E. Campus security.
Department Of Law: Office of the Attorney General: Prosecutors Advisory Council: Medical Examination of Sexual Abuse Victims
40 KAR 3:010E. Payment schedule to hospitals, physicians and or sexual assault nurse examiners for medical examination of victims of sexual offenses.
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.
Kentucky Retirement Systems: General Rules
105 KAR 1:290E. Medical Insurance Reimbursement Plan.
Board Of Medical Licensure
201 KAR 9:021E. Medical and osteopathic schools approved by the board; denial or withdrawal of approval; application of KRS 311.271; postgraduate training requirements; approved programs; recognition of degrees.
Board of Nursing
201 KAR 20:215. Contact hours, recordkeeping and reporting requirements for renewal of licensure.
201 KAR 20:240. Fees for applications and for services. Nathan Goldman, General Counsel, Sharon Weisenbeck, Executive Director, and Lisa Drexler, Resources Manager, represented the Board. Ann Powell, Executive Director, Kentucky Nurses Association, appeared before the Subcommittee.
In response to questions by Representative Allen, Ms. Weisenbeck stated that the Board’s costs had increased, especially with the disciplinary action program which had a forty-two percent increase in complaints. The Board received approximately 900 complaints a year and hired additional staff which enabled them to address those complaints within two to three weeks of filing. It was important to address complaints quickly to protect the public and to assist the nurse. The fee increase was also needed to update the Board’s eleven year old computer system, in order to provide automation for certain activities and permit the nurses to interact with the Board through the Internet. Additionally, the Board wanted to move the renewal time from a set time period every two years, to the licensee’s birth month. That change would spread the Board’s workload relating to renewals, and its receipt of revenue more evenly throughout the year. The Board projected this fee increase would address the Board’s financial needs for the next two to three years. Without the fee increase, the Board would not be able to update its computer system or provide additional services currently, and would be out of business in two years. The Board’s current budget, including the Nurse Incentives Scholarship Fund, was approximately $3.2 million with an estimated budget increase of five to ten percent. The proposed fee increase would raise $756,000 for the board during fiscal year 2002 and $2,030,000 during fiscal year 2003. The majority of the Board’s revenue came from renewal of licenses during the first quarter of the first year of a biennium. There were approximately 46,000 licensed registered nurses in Kentucky.
Ms. Drexler stated that the $3.2 million figure included the proposed fee increase. For fiscal year 2002, the Board’s budget would be about $2.2 million without the proposed increase of $756,000.
In response to questions by Representative Allen, Ms. Weisenbeck stated that the Board employed 38 staff members. The Board’s budget included, among other things, staff salaries and automation initiatives, which the vendors projected would cost between $500,000 and $700,000.
Representative Allen moved to find this administrative regulation deficient. The motion was seconded by Senator Roeding.
In response to questions by Representative Lee, Mr. Goldman stated that the Board notified the Kentucky Nurses Association, which represented registered nurses, and the Kentucky Association of Licensed Practical Nurses. The Board received letters from both associations in support of the fee increase. He did not know how many members were in each association, but they represented all nurses in Kentucky. Compared to the fees charged in other professions, the proposed fee amounts for nurses were still lower than those amounts.
In response to questions by Representative Lee, Ms. Weisenbeck stated that the nursing associations requested additional services, which the Board could not provide without additional fees. While the Board had not heard from members of the associations, she knew that the associations could not render an opinion on the issue of fee increases without discussing the proposal with their members. The Board last increased fees three or four years ago. The proposed increase for license renewal equaled an increase of approximately thirty-eight cents a week per nurse. The Board had notified nurses to the best of its ability and needed the fee increase both to stay in operation and to increase services. She hoped the Board did not need another fee increase for four or five years. Without this proposed fee increase, the Board would reduce its current services, including eliminating the alternative program and reducing staff.
In response to questions by Chairman Arnold, Mr. Goldman stated that the Board sent the letter required by KRS 13A.255 to both organizations. The fee for licensure renewal would be increased from $55 to $95 for both registered nurses and licensed practical nurses.
In response to questions by Chairman Arnold, Ms. Weisenbeck stated that the Board operated a nursing practice program in which the Board issued advisory opinions on practice issues requested by a nurse. Those opinions centered on whether an activity could be done by a nurse and often were submitted by employers, hospitals, nursing homes, and nurses. A Board committee reviewed the request and the issues were researched by Board staff to ensure that the practice did not involve the practice of medicine or another discipline not within the nurse’s scope of practice. Nurses were required to be educationally-prepared and clinically competent and to complete thirty hours of continuing education during each two year licensure period.
Mr. Goldman stated that the continuing education providers were approved by the Board and included schools, hospitals, private providers, and various organizations.
In response to questions by Senator Roeding, Ms. Powell stated that the Kentucky Nurses Association represented 47,000 nurses in Kentucky and published a bimonthly publication, The Kentucky Nurse, which was sent to all licensees in Kentucky as well as nursing students and schools of nursing. The Association had approximately 2,000 members. Another 1,500 to 1,800 nurses belonged to affiliate groups and specialty nurses associations.
In response to questions by Senator Roeding, Ms. Weisenbeck stated that, while the Board shared his concerns about the potential for people leaving the nursing field due to the fee increases, the Board provided critical services that required the fee increases. The Board received hundreds of phone calls each week from nurses requesting information from the Board and needed to stay in operation to address those issues.
In response to a question by Representative Lee, Ms. Powell stated that the final proof for the next newsletter would be ready tomorrow and was scheduled for distribution during the last week of October.
Representative Lee stated that the newsletter provided the perfect vehicle for informing the nurses about the fee increase. The next newsletter should include a prominent notice informing the nurses about the fee increases, including the reasons for the increase and the amount of the increase. The notice should also include information on contacting the Board with their comments regarding the proposed increase. A copy of the notice should be sent to Subcommittee staff. This administrative regulation should be deferred for at least one month to give time for this notification. When a state agency proposed a fee increase, the agency should make every effort to notify all affected individuals that their livelihood would be affected by the proposed increases.
Ms. Powell stated that information regarding the proposed fee increase was included in a previous issue of the Kentucky Nurse eight months ago. The Board of Nursing also published information in their publication, Communique, which went to every nurse in Kentucky. She would be happy to disseminate the information again.
Ms. Weisenbeck stated that it would take another couple of months for the Board’s newsletter to be prepared. The Board would, however, agree to a deferral of this administrative regulation to give the Board time to provide additional information to all nurses in Kentucky.
In response to questions by Representative Allen, Ms. Weisenbeck stated that she did not have with her the total salary amount paid to the Board’s thirty-eight employees. She would find that information out prior to the next Subcommittee meeting and share it with the Subcommittee.
Representative Allen stated that he was concerned with the $6 billion budget for all state agencies. The budgets of state agencies continued to grow and someone needed to encourage or require those agencies to live within their means. He withdrew his motion to find this administrative regulation deficient.
Senator Roeding withdrew his second on Representative Allen’s motion.
Without objection, this administrative regulation was deferred.
Justice Cabinet: Department of Corrections: Sex Offender Risk Advisory Board: Office of the Secretary
501 KAR 6:170. Green River Correctional Complex.
501 KAR 6:220E. Treatment for sex offenders.
Department of Criminal Justice Training: Kentucky Law Enforcement Council
503 KAR 1:140E. Peace officer professional standards.
Education, Arts, And Humanities: Board of Education: Department of Education: Office of District Support Services: General Administration
702 KAR 1:150E. Employment of retired teachers in critical shortage areas.
Office of Learning Programs Development
704 KAR 3:490E. Teachers' Professional Growth Fund.
Health and Physical Education Programs
704 KAR 4:020E. School health services.
Education Professional Standards Board
704 KAR 20:120E. Emergency certification and out-of-field teaching.
704 KAR 20:198. Director of special education.
704 KAR 20:210E. Substitute teachers and emergency school personnel.
704 KAR 20:280E. Endorsement for teachers of gifted education.
704 KAR 20:410. Certification for supervisor of instruction, grades K-12.
704 KAR 20:420. Certification for school superintendent.
704 KAR 20:500E. Certificates for teachers of exceptional children - communication disorders.
704 KAR 20:540. Professional certificate for directors of pupil personnel and assistants.
704 KAR 20:706E. Admission, placement, and supervision in student teaching.
704 KAR 20:710. Professional certificate for instructional leadership - school principal, all grades.
704 KAR 20:750E. Teachers' National Certification Incentive Trust Fund.
Labor Cabinet: Department of Workers' Claims
803 KAR 25:010E. Procedure for adjustments of claims.
803 KAR 25:012E. Resolution of medical disputes.
803 KAR 25:101E. Provision of workers' compensation rehabilitation services.
Department of Insurance: Agents, Consultants, Solicitors and Adjusters
806 KAR 9:006E. Repeal of 806 KAR 9:005, 806 KAR 9:100, 806 KAR 9:150, 806 KAR 9:170, and 806 KAR 9:180.
806 KAR 9:060E. Identification cards.
806 KAR 9:120E. Unlicensed adjusters.
806 KAR 9:200E. Volume of insurance agent exchange of business.
806 KAR 9:210E. Time limit for replacement of evidence of licensee financial responsibility.
806 KAR 9:250E. Specialty credit insurance producer.
Unauthorized Insurers' Prohibitions, Process and Advertising
806 KAR 11:010E. Industrial insured, government entity insured, and exempt commercial policyholder.
Rates and Rating Organizations
806 KAR 13:150E. Property and casualty rate and rule filings.
Insurance Contract
806 KAR 14:005E. Rate and form filing for life and health insurers.
806 KAR 14:006E. Property and casualty insurance form filings.
Health Insurance Contracts
806 KAR 17:180E. Standard health benefit plan and comparison format.
806 KAR 17:220E. Approval criteria and requirements for reentry into the Kentucky health insurance market.
806 KAR 17:230E. Requirements regarding medical director's signature on health care benefit denials.
806 KAR 17:260E. Conversion policy minimum benefits.
806 KAR 17:280E. Registration, utilization review, and internal appeal.
806 KAR 17:290E. Independent external review program.
806 KAR 17:300E. Provider agreement filing requirements.
Health Maintenance Organizations
806 KAR 38:020E. Health maintenance organization agent license.
Cabinet For Health Services: Office of Administrative Services: Vital Statistics
901 KAR 5:050E. Fees for searches, certified copies of certificates and records.
Department for Public Health: Maternal and Child Health
902 KAR 4:120E. Health Access Nurturing Development Services (HANDS) Program.
Health Services and Facilities
902 KAR 20:008E. License procedures and fee schedule.
Division of Licensing and Regulation: Office of Inspector General
906 KAR 1:110E. Critical access hospital services.
Department for Medicaid Services: Division of Long Term Care: Medicaid Service
907 KAR 1:044E. Mental health center services.
907 KAR 1:145E. Supports for community living services for an individual with mental retardation or a developmental disability.
907 KAR 1:155E. Payments for supports for community living services for an individual with mental retardation or a developmental disability.
907 KAR 1:170E. Payment for home and community based waiver services.
907 KAR 1:320E. Kentucky patient access and care system (KenPAC).
907 KAR 1:475E. Repeal of 907 KAR 1:470, 907 KAR 1:472 and 907 KAR 1:474.
907 KAR 1:478E. Durable medical equipment covered services and reimbursement.
907 KAR 1:626E. Reimbursement of dental services.
907 KAR 1:631E. Reimbursement of vision program services.
907 KAR 1:790E. Medicaid service category expenditure information.
Payment and Services
907 KAR 3:030E. Coverage and payments for IMPACT Plus services.
907 KAR 3:140E. Coverage and payments for the Health Access Nurturing Development Services (HANDS) Program.
Department for Mental Health and Mental Retardation Services: Institutional Care
908 KAR 3:050E. Per diem rate pursuant to the "Patient Liability Act of 1978".
Cabinet For Families And Children: Department for Community Based Services: Family Support: Child Support
921 KAR 1:400E. Establishment, review, and modification of child support and medical support orders.
Division of Policy Development: Child Welfare
922 KAR 1:050E. Approval of adoption assistance.
922 KAR 1:360E. Private child care placements, levels of care and payment.
OTHER BUSINESS:
Chairman Arnold stated that staff attorney Steve Lynn would be leaving the Subcommittee at the end of the month to accept a position with the Department of Criminal Justice Training in Richmond. On behalf of the Subcommittee, he said the Subcommittee would miss Mr. Lynn and thanked him for his four years of faithful and dutiful service. Mr. Lynn performed an outstanding job and would be missed. Representative Bruce stated that he would miss him as well.
The Subcommittee adjourned at noon until November 14, 2000, at 10 a.m. in Room 149 of the Capitol Annex.