The November meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, November 14, 2000, at 10:00 AM, in Room 149 of the Capitol Annex. Representative John Arnold Jr., Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Representative John Arnold Jr., Chair; Senators Marshall Long and Joey Pendleton; Representatives Woody Allen, James Bruce, and Jimmie Lee.
Guests: Richard Casey, Linda Renschler, KHEAA; Robert Barnes, Kentucky Teachers' Retirement; Pam Johnson, William P. Hanes, Kentucky Retirement Systems; Nathan Goldman, Sharon Weisenbeck, Board of Nursing; Becky Klusch, Debra Turner, Nancy Brinly, Board of Physical Therapy; Tom Bennett, Pete Pfeiffer, Roy Grimes, Department of Fish and Wildlife Resources; Amy Barker, Dr. Gary Dennis, Sex Offender Risk Assessment Board; Tamela Biggs, Brenda Priestley; Department of Corrections; Thor Morrison, Stephanie Bingham, Steve Lynn, Kentucky Law Enforcement Council; Jeff Mosley, Geri Grigsby, Margaret Plattner, Transportation Cabinet; Mary Ellen Wiederwohl, Education Professional Standards Board; Donna Floyd, Department of Workers' Claims; Deborah Eversole, Public Service Commission; Gary Kupchinsky, Charles Kendell, Philip Kremer, Lynne Flynn, Trish Howard, Bernard A. Elmer, Peggy Cook, Betty Conner, Jerry Whitley, Cabinet for Health Services; Joyce Metts, Clifford Jennings, Stephanie Brammer-Barnes, Shirley Eldridge, Rosanne Barkley, Marilyn Bannister, Karen Doyle, Cabinet for Families and Children; Reva Williams, Active Services Corp; Nancy Galvagni, Kentucky Hospital Association; Joel Anderson, Kentucky Assisted Living Facilities Association; Robert Stevens, St. Charles Care Center; Diona Mullins, Appalachian Regional Healthcare, Inc.; Matt Klein, Deters, Benzinger & LaVelle; Bob Barnett, Mike Mayes, Kentucky Pharmacists Association; Anne Powell, Kentucky Nurses Association; Nancy C. Estes, Sharon Fields, Kentucky Disabilities Coalition; Michael W. Wooden, Wooden & Associates, Inc.; Mike Helton, KPMA.
LRC Staff: Dave Nicholas, Donna Little, 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:
Kentucky Higher Education Assistance Authority: Division of Student Services: Commonwealth Merit Scholarship Program
11 KAR 15:010. Definitions. Richard Casey, General Counsel, and Linda Renschler, Student Aid Branch Manager, represented the Authority.
In response to a question by Chairman Arnold, Mr. Casey stated that these administrative regulations were amended to change the program name, address housekeeping matters, and conform to other legislative changes made by Senate Bill 125 and House Bill 93, which were enacted during the 2000 Regular Session of the General Assembly.
This administrative regulation was amended as follows: (1) the TITLE was amended to comply with KRS 13A.222(4)(e); and (2) Section 1 was amended to: (a) define “correspondence course” in accordance with the definition established in 11 KAR 5:001; (b) strike-through existing language that was not deleted in accordance with KRS 13A.222(2)(b); and (c) comply with the: 1. format requirements of KRS 13A.220(4); and 2. drafting requirements of KRS 13A.222(4).
11 KAR 15:020. Student eligibility report. This administrative regulation was amended as follows: Section 1 was amended to: (1) cross-reference applicable administrative regulations; and (2) comply with the: (a) format requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4).
11 KAR 15:070. Records and reports. This administrative regulation was amended as follows: Section 1 was amended to comply with the format requirements of KRS 13A.220(4).
Kentucky Employees' Retirement System: General Rules
105 KAR 1:150. Installment purchase procedures. Pam Johnson, General Manager, and Bill Hanes, Deputy Commissioner, represented the System.
In response to a question by Chairman Arnold, Ms. Johnson stated that these administrative regulations were amended to conform with statutory changes enacted during the 2000 Regular Session of the General Assembly and federal changes that had occurred and to simplify procedures for members purchasing service credit through monthly deductions.
This administrative regulation was amended as follows: (1) 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 (2) Sections 2, 4, 5, 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).
105 KAR 1:180. Death before retirement procedures. This administrative regulation was amended as follows: Sections 4 and 6 were amended to comply with the: (1) format requirements of KRS 13A.220(4); and (2) drafting requirements of KRS 13A.222(4).
105 KAR 1:200. Retirement procedures and forms. This administrative regulation was amended as follows: Sections 1 through 8 and 11 were amended to comply with the: (1) format requirements of KRS 13A.220(4); and (2) drafting requirements of KRS 13A.222(4).
105 KAR 1:210. Disability procedures. This administrative regulation was amended as follows: Sections 1 through 4, 7 through 12 and 14 were amended to comply with the: (1) format requirements of KRS 13A.220(4); and (2) drafting requirements of KRS 13A.222(4).
105 KAR 1:220. Annual disability review. This administrative regulation was amended as follows: (1) 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 (2) Sections 1 through 3 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).
105 KAR 1:260. Purchase of out-of-state service credit. 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 2, 3, 5, 7, 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).
105 KAR 1:290 & E. Medical insurance reimbursement plan. This administrative regulation was amended as follows: (1) 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 (2) Sections 1, 3, 7 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).
Board of Nursing
201 KAR 20:215. Contact hours, recordkeeping and reporting requirements for renewal of licensure. Nathan Goldman, General Counsel, and Sharon Weisenbeck, Executive Director, represented the Board.
This administrative regulation was amended as follows: (1) 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 (2) Sections 3 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).
Board of Physical Therapy
201 KAR 22:130. Per diem of board members. Becky Klusch, Executive Director, Debra Turner, Board member, and Nancy Brinly, former Director, represented the Board.
In response to a question by Chairman Arnold, Ms. Klusch stated that these administrative regulations were amended to conform to statutory changes enacted during the 2000 Regular Session of the General Assembly. The per diem for board members would be increased from $60 to $75 under this administrative regulation.
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 was amended to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220(3)(f).
201 KAR 22:140. Funding of impaired physical therapy practitioners committee. This administrative regulation was amended as follows: (1) 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 (2) Section 1 was amended to indicate when the fee was to be paid.
Tourism Development Cabinet: Department of Fish and Wildlife Resources: Fish
301 KAR 1:201. Fishing limits. Tom Bennett, Commissioner, represented the Department.
In response to a question by Chairman Arnold, Mr. Bennett stated this administrative regulation was amended to comply with requirements established in Tennessee for Dale Hollow Lake. Kentucky had a long-standing agreement with Tennessee to have parity on Dale Hollow Lake because 85% of the lake was located in Tennessee and 15% was located in Kentucky.
This administrative regulation was amended as follows: the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 2, and 4 were amended to comply with the drafting requirements of KRS 13A.222(4).
Game
301 KAR 2:240. Special bobcat harvest season. In response to a question by Chairman Arnold, Mr. Bennett stated that Kentucky was, and had been for many years, under the quota received from the US Fish and Wildlife Service for bobcats. This administrative regulation was amended to permit each hunter to take three bobcats per year.
In response to questions by Representative Allen, Mr. Bennett stated that research from the Department and the US Fish and Wildlife Service indicated that there were approximately 4000 bobcats in Western Kentucky and 5000 bobcats in Eastern Kentucky. The Department had received reports of bobcats from every Kentucky county. He did not know why people hunted bobcats or the value of their pelts.
In response to a question by Representative Bruce, Mr. Bennett stated that a bobcat was a cat about eighteen inches tall with a short tail. Bobcats resided in ranges across the state and posed a threat mainly to songbirds, not other animals or people.
This administrative regulation was amended as follows: the RELATES TO paragraph was amended to correct statutory citations.
Justice Cabinet: Department of Corrections: Division of Adult Institutions: Office of the Secretary
501 KAR 6:050. Luther Luckett Correctional Complex. Tamela Biggs, Staff Attorney, represented the Department.
This administrative regulation was amended as follows: (1) the RELATES TO paragraph was amended to add statutory citations; (2) Section 1 was amended to comply with the format for incorporation by reference, as established in KRS 13A.2251; (3) the REGULATORY IMPACT ANALYSIS was amended to correct an institutional reference; (4) Policy 03-02-04 was amended to: (a) correct numbering; and (b) clarify language; (5) Policy 09-14-02 was amended to correct statutory citations; and (6) Policy 09-29-01 was amended to: (a) notify the coroner as required by statute; and (b) clarify language.
501 KAR 6:060. Northpoint Training Center. This administrative regulation was amended as follows: Section 1 was amended to comply with the format for incorporation by reference, as established in KRS 13A.2251.
501 KAR 6:120. Blackburn Correctional Complex. This administrative regulation was amended as follows: (1) Section 1 was amended to comply with the format for incorporation by reference, as established in KRS 13A.2251; and (2) Policies 02-05-01, 02-06-01, and 11-04-01 were amended to comply with the drafting requirements of KRS 13A.222(4).
501 KAR 6:220 & E. Treatment for sex offenders. Amy Barker, Staff Attorney, Sex Offender Risk Assessment Advisory Board; Dr. Rick Purvis, Director, Division of Mental Health; and Dr. Gary Dennis, Deputy Commissioner and Chairman, Sex Offender Risk Assessment Advisory Board, represented the Department.
In response to a question by Representative Bruce, Ms. Barker stated that this administrative regulation established minimum standards for sex offender treatment.
In response to questions by Representative Bruce, Dr. Purvis stated that when a judge ordered sex offender treatment, the Sex Offender Risk Assessment Advisory Board assured that the individuals who provided the treatment and evaluations had met certain standards. The treatment was provided by the Department and private providers. The evaluations were conducted at the jails prior to sentencing.
In response to questions by Chairman Arnold, Ms. Barker stated that while state law no longer required notification to communities when a sex offender was released, she was not aware of any statutory prohibitions that prevented a sheriff from making the notification.
Dr. Dennis stated that information regarding all released sex offenders was available to the public through the Kentucky State Police website.
This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY 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) Section 1 was amended to define "community standards of care"; and (4) 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).
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(6), the Subcommittee went into closed session to review this administrative regulation.
Death Benefit Claims
501 KAR 15:010. Definitions. Tamela Biggs, Staff Attorney, represented the Department.
This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY paragraph was amended to correct a statutory citation; (2) the TITLE and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and 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).
501 KAR 15:020. Filing and processing of death benefit claims. This administrative regulation was amended as follows: Sections 2, 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).
Transportation Cabinet: Office of Transportation Delivery: Mass Transportation
603 KAR 7:080. Human service transportation delivery. Jeff Mosely, Deputy Secretary, Geri Grisby, General Counsel, and Margaret Plattner, Director, represented the Department.
In response to questions by Representative Lee, Ms. Plattner stated that, when a person becomes eligible for Medicaid or K-TAP, the Department for Community-Based Services will give that person a one-page flyer that explains the human service transportation delivery program, including information on the program, its availability, program codes, and a person’s right to choose transportation providers. The flyer will include instructions to contact the Transportation Cabinet directly with questions or complaints regarding the program. She would give a copy of the flyer to the Subcommittee as soon as the flyer was complete. The Cabinet would give copies of the flyer to the cabinets involved in the program as soon as this administrative regulation became effective to enable the cabinets to immediately distribute the flyers to the Department for Community-Based Services offices.
This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY paragraph and Sections 1, 5, 7, 8, and 16 were amended to correct statutory citations; (2) Sections 1, 4 through 6, and 8 through 18 were 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 19 was amended to adopt without change, rather than incorporate by reference, applicable federal regulations.
Education Professional Standards Board
704 KAR 20:198. Director of special education. Mary Ellen Wiederwohl, Director of Legislative and Public Relations, represented the Board.
In response to questions by Chairman Arnold, Ms. Wiederwohl stated that this administrative regulation, 704 KAR 20:410, 704 KAR 20:420, 704 KAR 20:540, and 704 KAR 20:710 pertained to the certification of education administrators, including directors of special education, principals, supervisors of instructors, superintendents, and directors of pupil personnel. Those administrative regulations were amended to align the programs with a standards-based approach at the request of education administrators and professors at teacher education colleges in order to align the programs statewide. The remaining administrative regulations (704 KAR 20:210 & E, 704 KAR 20:280 & E, 704 KAR 20:500 & E, 704 KAR 20:706 & E, and 704 KAR 20:750 & E) were originally filed as emergency administrative regulations in July, 2000, to enact statutory changes enacted during the 2000 Regular Session of the General Assembly.
This administrative regulation was amended as follows: (1) a new Section 1 was created to define Level I and Level II, pursuant to KRS 13A.100, 13A.120, and 13A.130; (2) Section 3 was amended to: (a) delete a cross-reference to an outdated Section; (b) authorize a person to work in special education if the person holds a valid certificate possessing the code ADSE for approval of director of special education; and (c) comply with the: 1. format requirements of KRS 13A.220(4); and 2. drafting requirements of KRS 13A.222(4); (3) Section 6 was amended to delete provisions that were outdated; and (4) Section 7 was amended to correct a cross-reference to another administrative regulation.
704 KAR 20:280 & E. Endorsement for teachers of gifted education. This administrative regulation was amended as follows: (1) 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); (2) Section 1 was amended to define “teacher for gifted education”; (3) Section 2 was amended to: (a) delete the definition of “teacher for gifted education” from the substantive provisions, as required by KRS 13A.222(4)(e); and (b) delete provisions that repeated KRS 161.052, as required by KRS 13A.120(2)(e) and (f); and (4) the TITLE and Sections 1, 2, 3, and 4 were amended to comply with the: (a) format requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4) and 13A.2251(2)(c).
704 KAR 20:410. Certification for supervisor of instruction, grades K-12. This administrative regulation was amended as follows: (1) the TITLE was amended to delete the reference to grades K-12; (2) a new Section 1 was created to define Level I and Level II, pursuant to KRS 13A.100, 13A.120, and 13A.130; and (3) Section 3 was amended to correct a cross-reference to another administrative regulation.
704 KAR 20:420. Certification for school superintendent. This administrative regulation was amended as follows: (1) Section 2 was amended to correct a cross-reference to another administrative regulation; and (2) Section 4 was amended to comply with the: (a) format requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4).
704 KAR 20:500 & E. Certificates for teachers of exceptional children - communication disorders. This administrative regulation was amended as follows: (1) the TITLE and Sections 1 through 3 were amended to use the statutory term for this certificate for teachers of exceptional children/communication disorders, as required by KRS 13A.222(4)(e); (2) the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to correct statutory citations; (3) 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); (4) Sections 1 and 2 were amended to clarify when each section was applicable; 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) and 13A.2251(2)(e).
704 KAR 20:540. Professional certificate for directors of pupil personnel and assistants. This administrative regulation was amended as follows: (1) a new Section 1 was created to define Level I and Level II, pursuant to KRS 13A.100, 13A.120, and 13A.130; and (2) Section 3 was amended to correct a cross-reference to another administrative regulation.
704 KAR 20:706 & E. Admission, placement, and supervision in student teaching. This administrative regulation was amended as follows: (1) 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); (2) Section 2 was amended to delete provisions that repeated KRS 161.042(3), as required by KRS 13A.120(2)(e) and (f); (3) Sections 4 and 7 were amended to delete superfluous language, as required by KRS 13A.222(4)(a); and (4) Sections 1, 2, 3, 6, 7, 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) and 13A.2251(2)(e).
704 KAR 20:710. Professional certificate for instructional leadership - school principal, all grades. This administrative regulation was amended as follows: a new Section 1 was created to define Level I and Level II, pursuant to KRS 13A.100, 13A.120, and 13A.130.
704 KAR 20:750 & E. Teachers' National Certification Incentive Trust Fund. This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs and Section 6(3) 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 1, 2, 3, 4, 5, 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) and 13A.2251(2)(e).
Labor Cabinet: Department of Worker's Claims
803 KAR 25:010 & E. Procedure for adjustments of claims. Donna Floyd, Staff Attorney, represented the Department.
In response to a question by Chairman Arnold, Ms. Floyd stated that these administrative regulations were amended to conform to changes to workers’ compensation made by House Bill 992, enacted during the 2000 Regular Session of the General Assembly, and to remove arbitrators from the workers’ compensation system.
This administrative regulation was amended as follows: (1) Section 1(9) was amended to (a) clarify the definition of “Latest Available Edition”; and (b) comply with the drafting requirements of KRS 13A.222(4); and (2) Sections 5(2) and 6(2) were amended to correct internal cross-references.
803 KAR 25:012 & E. Resolution of medical disputes. This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs were amended to correct statutory citations; (2) Sections 1, 3, and 4 were amended to comply with the: (a) format requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4); and (3) Appendix A and Appendix B were amended to correct the required date.
803 KAR 25:101 & E. Provision of workers' compensation rehabilitation services. This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs were amended to correct statutory citations; (2) Sections 1 and 4 were amended to comply with the drafting requirements of KRS 13A.222(4); and (3) Section 2 was amended to correct the name of the Cabinet for Health Services.
Cabinet For Health Services: Department for Public Health: Division of Epidemiology and Health Planning: Communicable Diseases
902 KAR 2:020. Disease surveillance. Gary Kupchinsky, HIV-AIDS Branch Manager, represented the Department.
In response to a question by Chairman Arnold, Mr. Kupchinsky stated that this administrative regulation implemented the unique code reporting requirements of Senate Bill 227, which was enacted during the 2000 Regular Session of the General Assembly. Section 7 of this administrative regulation established a unique identifier that included the person’s first and last initials, date of birth, and last four digits of a person’s Social Security number. This administrative regulation required physicians and laboratories to report all persons who had been recorded as HIV positive. The number of people reporting HIV had stabilized during the last two years and there has not been a significant amount of change in that number.
This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to correct statutory citations; (2) amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph 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, 5, 6, 7, 9, and 10 were amended to comply with the drafting requirements of KRS 13A.222(4).
State Health Plan
902 KAR 17:041. State Health Plan for facilities and services. John Gray, Director, Certificate of Need Office, Charlie Kendall, Branch Manager, Health Policy Development Branch, and Ann Gordon, represented the Cabinet. Ronnie Pryor, Lifepoint Hospitals; Jon O’Shaugnessy, Chief Executive Officer, Lake Cumberland Regional Hospital, Somerset; and Mike Baker, Attorney, HargroveBaker, PSC, spoke in favor of the amendment. Nancy Galvagni, Kentucky Hospital Association, and Matt Klein, Attorney, representing St. Elizabeth's Medical Center and Baptist Health Care System, appeared before the Subcommittee.
Representative Bruce stated that he wanted to propose an amendment to this administrative regulation. It was his understanding that the Cabinet did not object to the amendment. The amendment would make changes to two pages of the State Health Plan. On Page 11, after the phrase “For adult open heart surgery”, the colon should be changed to a comma and the following language should be inserted: “there is not an existing or approved open heart surgery program in the ADD or the following criteria are met:”. On Page 17, after Criterion 10.b., the following should be inserted: “11. Notwithstanding the foregoing review criteria, an application proposing therapeutic catheterization services shall be consistent with this plan if there is not an existing or approved therapeutic catheterization service (except for the use of clot-dissolving infusion drugs approved by the FDA such as Streptokinase and TPA) in the ADD.”
Mr. Gray stated that the Cabinet did not object to this amendment.
In response to questions by Representative Lee, Mr. Gray stated that this amendment was not proposed or discussed during the public hearings held on this administrative regulation. Thus, other Kentucky hospitals were not aware of this amendment.
In response to a question by Representative Lee, Ms. Galvagni stated that the Kentucky Hospital Association could not speak on the merits of this amendment because the amendment had not been distributed prior to the Subcommittee meeting and the substance of the amendment was just read by Representative Bruce. The Association filed comments regarding the state health plan at the public hearing in August and believed that, except for minor clarification of the MRI standards, changes were not needed. The Association had established a specific process to develop its position on certificate of need and state health plan matters, including a specific committee composed of administrators throughout the state that discussed needed changes to the state health plan each year. When an individual member or hospital wanted a change to the state health plan, the member or hospital presented the change to the committee, the committee debated the proposal, and the committee’s recommendations were then forwarded to the Association’s board and to the Cabinet. Because the Association’s certificate of need committee had not reviewed the proposed amendment, she could not comment on whether the amendment was good or bad.
Representative Lee stated that, in fairness to other hospitals in Kentucky and to give an opportunity for public comment on this amendment, this administrative regulation should be deferred until the December, 2000, Subcommittee meeting. It was common Subcommittee practice to request deferral of administrative regulations to allow additional time for applicable comments. The Kentucky Hospital Association and other hospitals should be given an opportunity to review the amendment and offer their comments. He was not opposed to the open heart programs of hospitals, but believed the issue needed additional time for study and review.
Representative Bruce stated that he did not want this administrative regulation deferred because some hospitals would support the amendment and some would oppose the amendment. The amendment was good and should not be delayed.
Ms. Galvagni stated that most hospitals were not aware of the amendment. While she knew that one hospital supported the amendment, she did not know how many hospitals supported or opposed the amendment because the amendment had not been made available for public comment.
In response to questions by Chairman Arnold, Mr. Baker stated that his clients were not trying to avoid the certificate of need process. Even if the amendment was adopted, the hospitals would still be required to complete the certificate of need process, including formal review and demonstrating consistency with all review criteria. The amendment would amend the state health plan to permit approval of an open heart surgery program in area development districts that did not have a program in the district, if the program submitted an application and met all other criteria consistent with the state health plan. Larger hospitals with existing programs had traditionally opposed the development of new programs, especially in rural areas in South Central and Eastern Kentucky. Four area development districts did not have an approved open heart surgery program currently and a fifth district, located in Hazard, had a program approved last month which was subject to a challenge by existing providers. That request was before the Cabinet on a reconsideration request and would take several years to be decided by the court system. His clients had presented a broader amendment during the public hearing on this administrative regulation but scaled the amendment back to treat these programs the same way other programs are treated in the state health plan by the Cabinet. Most services in the state health plan were based on area development districts and the open heart surgery programs should be treated the same way.
In response to questions by Senator Long, Mr. Baker stated that there was a separate dispute about the location of an open heart surgery program less than fifty miles away from an existing hospital’s program. The existing hospital established its program based on a legislative fiat, not under the certificate of need procedure, and was involved in a court battle regarding the constitutionality of that legislation. The technical notes at the beginning of the state health plan indicated that area development districts were the basis for reviewing all applications for certificates of need.
In response to questions by Chairman Arnold, Mr. Gray stated that, if the amendment were approved, a hospital would still be required, by statute, to demonstrate a need for the service, accessibility for people in the service area, cost effectiveness, an ability to establish inter-relationships and linkages with existing health care providers, and an ability to provide a quality service.
Representative Lee stated that this administrative regulation should be deferred to give the other hospitals a chance to comment on the amendment, because the amendment was not presented at an earlier stage in the administrative regulation process. The amendment was probably good and should be approved after everyone had an opportunity to appear before the Subcommittee.
Mr. Baker stated that his clients offered an amendment during the regular process, which all hospitals knew about. The Kentucky Hospital Association was informed in advance about this amendment.
In response to questions by Representative Lee, Mr. Baker stated that this particular amendment was not offered prior to the Subcommittee meeting.
Representative Lee stated that he agreed with a suggestion by Chairman Arnold to vote on the amendment today and then defer consideration of this administrative regulation as amended until the December, 2000, Subcommittee meeting. The Kentucky Hospital Association and its members could appear before the Subcommittee and offer their position on the amendment.
In response to a question by Senator Long, Subcommittee staff stated that if the Subcommittee approved this administrative regulation at this Subcommittee meeting, the Subcommittee would lose jurisdiction over this administrative regulation under KRS Chapter 13A. In that situation, the Subcommittee would be authorized to review this administrative regulation as an existing administrative regulation at a future meeting date, but the Subcommittee would not be authorized to amend an existing administrative regulation.
Mr. Klein stated that he agreed with Representative Lee that this administrative regulation should be deferred. The hospitals he represented submitted a proposal less than two weeks ago to the Cabinet to change the review criteria for open heart surgery services. His proposed change was included in a prior certificate of need decision adopted by the Cabinet. The Cabinet said it would not agree to the proposed amendment because the state health plan would be reviewed again, beginning in January 2001, and working through the entire year. The Cabinet informed him that it would give proper and timely consideration to all comments regarding proposed changes to the state health plan or certificate of need criteria at that time. He was also informed that the Cabinet would not agree to any changes to the state health plan in November. Today, the Cabinet changed its position and stated it would agree to a proposed amendment, which his clients did not believe should be made. All hospitals should be given one month to review the proposed amendment.
Mr. Pryor stated that the Cabinet had received a copy of the proposed amendment's language prior to the Subcommittee meeting. The Cabinet decided to take a neutral stand on the proposed amendment and accept the Subcommittee's decision either way.
Mr. Gray stated that he had seen the language before that day.
Representative Bruce moved that this administrative regulation be amended and approved as amended. Senator Long seconded the motion.
Representative Allen stated that he was from a rural area and would probably support the proposed amendment, but he agreed that this administrative regulation should be deferred.
Representative Lee stated that he did not oppose the proposed amendment. If an area development district needed an open heart program, or any other program, he did not oppose the establishment of a program according to the criteria established in the state health plan. However, because this amendment affects other hospitals throughout Kentucky, the proposed amendment and this administrative regulation should be deferred one month.
In response to a question by Chairman Arnold, Mr. Gray stated that even if the proposed amendment was approved, the hospital would still be required to comply with the certificate of need requirements.
In response to a question by Chairman Arnold, Ms. Gordon stated that the Cabinet had not taken a position on the proposed amendment. The language that will be amended was inserted into the state health plan by the Health and Welfare Committee in 1999. The Cabinet wanted to follow legislative intent. The Cabinet did not believe this administrative regulation would be detrimental on health care costs and would not object to a deferral of this administrative regulation. Additionally, the state health plan was under constant review by the Cabinet.
In response to a question by Chairman Arnold and Representative Lee, Ms. Galvagni stated that the Kentucky Hospital Association did not have a position on the proposed amendment because the Association had not seen the amendment.
Senator Pendleton stated that he believed a legislator should propose legislation that would address this issue.
Representative Bruce requested a roll call vote on his motion.
The motion to amend this administrative regulation and approve this administrative regulation as amended was approved on a roll call vote, with Senators Long and Pendleton, and Representatives Allen, Arnold, and Bruce voting in support of the motion, and Representative Lee voting against this motion.
Senator Long and Chairman Arnold requested that interested parties present testimony regarding this administrative regulation as amended at its December, 2000, Subcommittee meeting.
This administrative regulation was amended as follows: (1) Section 3(1) was amended to indicate that the material incorporated by reference was amended November 14, 2000; (2) Page 11 of the State Health Plan was amended to: (a) change the colon after the phrase "For adult open heart surgery" to a comma; and (b) insert the following language: “there is not an existing or approved open heart surgery program in the ADD or the following criteria are met:”; and (3) Page 17 of the State Health Plan was amended to insert after Criterion 10.b., the following language: “11. Notwithstanding the foregoing review criteria, an application proposing therapeutic catheterization services shall be consistent with this plan if there is not an existing or approved therapeutic catheterization service (except for the use of clot-dissolving infusion drugs approved by the FDA such as Streptokinase and TPA) in the ADD.”.
Subcommittee Staff Note: The amendment to Section 3(1) was inserted by Subcommittee staff to accurately reflect the amendment to the material incorporated by reference approved by the Subcommittee. Additionally, the page numbers refer to the pages of the "dirty" copy of the material filed by the Cabinet October 5, 2000. The corresponding page numbers in the "clean" copy of the material filed October 5, 2000, are Pages 11 and 16, respectively.
Department for Medicaid Services: Division of Physical Health: Medicaid Services
907 KAR 1:626 & E. Reimbursement of dental services. Phil Kremer, Director, represented the Division.
In response to a question by Chairman Arnold, Mr. Kremer stated that this administrative regulation implemented the increased dental reimbursement rates approved as part of House Bill 502, enacted during the 2000 Regular Session of the General Assembly. The rates were increased by thirty-two percent.
This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY paragraph was amended to correct statutory citations; (2) Section 4 was amended to: (a) specify the meaning of comprehensive orthodontic procedure; and (b) correct an internal cross-reference; and (3) Section 7 was amended to comply with the drafting requirements of KRS 13A.222(4).
907 KAR 1:631 & E. Reimbursement of vision program services. This administrative regulation was amended as follows: the STATUTORY AUTHORITY paragraph was amended to correct statutory citations.
907 KAR 1:790 & E. Medicaid service category expenditure information. This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY paragraph and Section 2 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 was amended to specify the required form.
Division of Children's Health Programs: Payment and Services
907 KAR 3:140 & E. Coverage and payments for the Health Access Nurturing Development Services (HANDS) Program. Lynne Flynn, Director, represented the Division.
This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to correct statutory citations; and (2) Section 4(3) was amended to correct a typographical error.
Office of Aging Services: Aging Services
910 KAR 1:240. Certification of assisted living communities. Jerry Whitley, Director, represented the Office.
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 2(6) was amended to require in-service training to be completed within six months of hire; (3) Section 6(1) was amended to delete unclear language suggesting mandatory fine; and (4) Sections 1, 2, and 4 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).
Cabinet For Families And Children: Department for Community Based Services: Division of Policy Development: Family Support: Child Support
921 KAR 1:400 & E. Establishment, review, and modification of child support and medical support orders. Karen Doyle and Steve Veno, Director, 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) Section 2 was amended to specify the number of the required forms; and (3) Section 5 was amended to incorporate by reference all forms used to determine child support.
Protection and Permanency: Child Welfare
922 KAR 1:050 & E. Approval of adoption assistance. Cliff Jennings represented the Department.
In response to a question by Chairman Arnold, Mr. Jennings stated that this administrative regulation expanded the definition of "special needs child" to include more children committed to the Cabinet under that umbrella to increase the number of adoptions.
This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY paragraph was amended to add a statutory citation; (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 through 7 were amended to: (a) add Section titles; and (b) comply with the drafting requirements of KRS 13A.222(4) and 13A.2251(2).
The Subcommittee determined that the following administrative regulations complied with statutory authority:
Kentucky Higher Education Assistance Authority: Division of Student Services: Commonwealth Merit Scholarship Program
11 KAR 15:030. Dual enrollment under consortium agreement. Richard Casey, General Counsel, and Linda Renschler, Student Aid Branch Manager, represented the Authority.
11 KAR 15:050. Disbursement.
Teachers' Retirement System: General Rules
102 KAR 1:220. Final average salary based on average of three highest salaries. Robert Barnes, General Counsel, represented the System.
In response to a question by Chairman Arnold, Mr. Barnes stated that this administrative regulation was promulgated in accordance with KRS 161.220(9), which allowed the Board of Trustees to permit the calculation of retirement annuities based on the member’s highest three salaries, rather than five salaries. To qualify, the member was required to have at least twenty-seven years of Kentucky service and be at least fifty-five years of age.
Kentucky Employees' Retirement System: General Rules
105 KAR 1:231. Repeal of 105 KAR 1:205, 105 KAR 1:230 and 105 KAR 1:280. Pam Johnson, General Manager, and Bill Hanes, Deputy Commissioner, represented the System.
Board of Nursing
201 KAR 20:240. Fees for applications and for services. Nathan Goldman, General Counsel, and Sharon Weisenbeck, Executive Director, represented the Board. Ann Powell, Executive Director, Kentucky Nurses Association, appeared before the Subcommittee.
Chairman Arnold stated that he wanted to read a letter he received from a Director of Nursing at a rural hospital in Kentucky. Along with the letter, the nurse enclosed a copy of the Kentucky Nurses Association publication which contained a notice regarding the proposed fee increase. The letter stated: “There is no doubt that Kentucky Nurses will pay this increased license renewal fee because we have no choice, if we want to practice nursing in Kentucky. I’m not sure how this fee compares to that of surrounding states. It could be that Kentucky’s fees have been too low for too long. That would explain why they would jump to a 46% increase at one time. Hourly waged Nurses, on the average, probably received a 3% - 5% raise last year and don’t anticipate any more than that next year. They find it difficult to justify the 23% annual increase in the license fee that the Board has proposed. A more gradual increase would have been more readily accepted or a statement that no further increases would be made until 2012. The Board’s timing seems to be a little inappropriate with the nursing shortage issue and the union activity in the larger cities. It has been difficult enough to recruit individuals to pursue Nursing as a career.”
In response to questions by Chairman Arnold, Mr. Goldman stated that he knew that some of the nursing fees charged by surrounding states were higher than Kentucky’s proposed fee amount while some fees were lower. Comparable to other professions in Kentucky, the fees for nursing were lower than the fees charged for other professions.
Ms. Weisenbeck stated that a newspaper article yesterday discussed the problems faced by the Indiana Board of Nursing, which had a lower fee for licensure. Kentucky had a very active disciplinary program and could resolve cases in an average time of 2.8 months, compared with six months’ time in other states. The Board of Nursing provided important services to the public with its disciplinary procedures and with assistance to nurses with difficulties.
Mr. Goldman stated that at the October 10, 2000, Subcommittee meeting, Representative Lee requested the Board send notification to all nurses, rather than just the two organizations that represent registered nurses and licensed practical nurses, as required by KRS Chapter 13A. The Board asked the Kentucky Nurses Association to include a notice in its publication, which was sent to all 61,000 nurses registered in Kentucky. The notice requested that comments be sent to Mr. Goldman by November 13, 2000. He received seventeen phone calls and one email from the 61,000 nurses.
Ms. Powell stated that the Association published the notice in the Kentucky Nurse and received one email regarding the notice, which the Association forwarded to Mr. Goldman. The Association notified their district nursing associations throughout the state and received comments that, because the Association had asked the Board to improve technology to allow easier access and to more rapidly process disciplinary matters, the Board needed additional funding.
Board of Physical Therapy
201 KAR 22:135. Fees. Becky Klusch, Executive Director, Debra Turner, Board member, and Nancy Brinly, former Director, represented the Board.
In response to questions by Chairman Arnold, Ms. Klusch stated that this administrative regulation increased the fee for reinstatement of license from $125 to $150.
Justice Cabinet: Department of Criminal Justice Training: Kentucky Law Enforcement Council
503 KAR 1:140 & E. Peace officer professional standards. Stephanie Bingham, General Counsel, Thor Morrison, Administrative Specialist, Peace Officers Professional Standards Board, and Steve Lynn, Associate General Counsel, represented the Department.
Education Professional Standards Board
704 KAR 20:210 & E. Substitute teachers and emergency school personnel. Mary Ellen Wiederwohl, Director of Legislative and Public Relations, represented the Board.
Public Service Commission: Utilities
807 KAR 5:063. Filing requirements and procedures for proposals to construct antenna towers for cellular telecommunications services or personal communications services. Deborah Eversole, General Counsel, represented the Commission.
Ms. Eversole stated that this administrative regulation was amended to provide additional notice requirements for persons who own property contiguous to property on which a cell tower was to be built.
In response to questions by Representative Bruce, Ms. Eversole stated that, while statutory provisions authorized telecommunication utilities to condemn property if necessary, to her knowledge, a cell company had not taken action previously to condemn property in order to build a cell tower. This administrative regulation required a company planning to construct a cell tower to publish the notice in a newspaper of general circulation in the area, post a notice both on-site and near the site on the nearest public road, and send notice, return receipt requested, to everyone who owned property within 500 feet of the site. The proposed change required the company to send notice to everyone who owned property contiguous to that property because sometimes the property was outside the 500 feet requirement.
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.
Selective Excise Tax; Motor Vehicle Usage
103 KAR 44:060. Motor vehicle usage tax valuation.
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 Certification for Professional Counselors
201 KAR 36:070. Education requirements.
Tourism Development Cabinet: Department of Fish and Wildlife Resources: Game
301 KAR 2:225E. Dove, wood duck, teal and other migratory game bird hunting.
Licensing
301 KAR 5:030E. Purchasing licenses and obtaining replacement licenses.
Department Of Agriculture: Division of Markets: Ginseng
302 KAR 45:010. Ginseng, general provisions.
Natural Resources And Environmental Protection Cabinet: Department for Environmental Protection: Division for Air Quality: Air Quality - General Administrative Procedures
401 KAR 50:071. Repeal of 401 KAR 50:030, 401 KAR 50:031, 401 KAR 50:032, 401 KAR 50:033, 401 KAR 50:034, 401 KAR 50:035, and 401 KAR 50:072.
Permits, Registrations, and Prohibitory Rules
401 KAR 52:001. Definitions for 401 KAR Chapter 52.
401 KAR 52:020. Title V permits.
401 KAR 52:030. Federally-enforceable permits for nonmajor sources.
401 KAR 52:040. State-origin permits.
401 KAR 52:050. Permit application forms.
401 KAR 52:060. Acid rain permits.
401 KAR 52:070. Registration of designated sources.
401 KAR 52:080. Regulatory limit on potential to emit.
401 KAR 52:090. Prohibitory rule for hot mix asphalt plants.
401 KAR 52:100. Public, affected state, and U.S. EPA review.
Justice Cabinet: Department of Corrections: Division of Adult Institutions: Office of the Secretary
501 KAR 6:070. Kentucky Correctional Institution for Women.
501 KAR 6:170. Green River Correctional Complex.
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: Office of Instruction
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 20:120 & E. Emergency certification and out-of-field teaching.
Public Protection And Regulation Cabinet: Department of Insurance: Fees and Taxes
806 KAR 4:010E. Fees of the Department of Insurance.
Agents, Consultants, Solicitors and Adjusters
806 KAR 9:001E. Prelicensing courses of studies; instructors.
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 9:070E. Examinations.
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 9:220E. Continuing education.
806 KAR 9:250E. Specialty credit insurance producer.
806 KAR 9:260E. Rental vehicle agent.
806 KAR 9:280E. Business entity election.
806 KAR 9:300E. Current licensees in good standing to receive equivalent license.
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 4:085E. Newborn Hearing Screening Equipment Grant Award.
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 Physical Health: Medicaid Services
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.
Division of Children's Health Programs: Payment and Services
907 KAR 3:030E. Coverage and payments for IMPACT Plus services.
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: Protection and Permanency: Child Welfare
922 KAR 1:360E. Private child care placements, levels of care and payment.
The Subcommittee adjourned at 11:45 a.m. until December 12, 2000, at 10 a.m. in Room 149 of the Capitol Annex.