The November meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, November 13, 2001, 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, Joey Pendleton, and Richard Roeding; Representatives Woody Allen, James Bruce, and Jimmie Lee.
Guests: David Mawn, Larry Carrico, Karen C. Jones, Governor’s Office of the Kentucky Agency for Substance Abuse Policy; Brenda Sweatt, Tim Lester, Robert S. Jones, Kentucky State Treasury; Maryellen Allen, Secretary of State; Mark L. Roberts, William Hanes, Shawn Sparks, Eric Wampler, Kentucky Retirement Systems; Mark Brengelman, James J. Grawe, Office of Attorney General; Gary Munsie, Board of Dentistry; Becky Klusch Hughes, Board of Physical Therapy; Carolyn Breeding, Board of Dietitians and Nutritionists; Nancy Black, Division of Occupations and Professions; Dr. Rick Underwood, Board of Fee-Based Pastoral Counselors; Ellen Benzing, Bob Bates, Department of Fish and Wildlife Resources; Mark Farrow, Ann Stewart, John W. McCauley, Ira Linville, Department of Agriculture; Jack Damron, Brenda Priestley, Department of Corrections; Mack Bushart, Hollie Spade, Transportation Cabinet; Mary Ellen Wiederwohl, Education Professional Standards Board; Jim Nelson, Department of Libraries and Archives; Brenda Schissler, ABC; Deborah Eversole, Gary Forman, Public Service Commission; Tim Faust, Janet M. Hall, Department of Housing, Buildings and Construction; Rice Leach, Jay Klein, John Walker, Wanda Fowler, Betty H. Olinger, Zach Ramsey, Jesse Williams, Ken C. Grant, Sharon Eli Mercer, Vera Frazer, Tricia Salyer, Betty Barber, Duane Dringenburg, Mike Littlefield; Colleen Ryall, Cabinet for Health Services; Rosanne Barkley, Sharon L. Chisley, Cabinet for Families and Children; John Cooper, KBA; Robert (Bob) Fritz, Christian County Health Department; Larry Davis, Marshall County Health Department; James Robert Ratliff, Kentucky Health Department Association; Ruby Jo Lubarsky, Wayne Johnson, Mike Rodman, Nancy Hublar, Kentucky Association of Health Care Facilities; Donnie Blake, Kentucky Pest Control Association.
LRC Staff: Dave Nicholas, Karen Smith, Sarah Amburgey, Donna Little, Edna Lowery, Susan Wunderlich, Donna Kemper, and Ellen Steinberg.
The Subcommittee determined that the following administrative regulations, as amended by the promulgating agency and the Subcommittee, complied with statutory requirements:
Governor's Office: Kentucky Agency for Substance Abuse Policy
10 KAR 7:010 (& E). Kentucky Agency for Substance Abuse Policy (KY-ASAP) Program and start-up funding. Larry Carrico, Executive Director, and David Mawn, Deputy Director, represented the Agency.
This administrative regulation was amended as follows: (1) Sections 3 through 6 were amended to comply with the drafting and format requirements of KRS Chapter 13A; and (2) Section 4(5)(f) was amended to require cities of the second class to provide a letter of support.
Kentucky State Treasurer
20 KAR 1:090. Accounts for unclaimed property held in an interest-bearing demand. Robert Jones, Assistant Attorney General, Brenda Sweatt, Division Director, and Tim Lester, Unclaimed Property Branch Manager, represented the Treasury.
This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to correct statutory citations; and (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 1 were amended to comply with the drafting requirements of KRS Chapter 13A.
Secretary Of State: Implementation of Revised Article 9
30 KAR 5:010 & E. Definitions for 30 KAR Chapter 5. Maryellen Allen, Counsel and Division Director, represented the Secretary.
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: (a) delete definitions that repeated or summarized statutory definitions, to comply with KRS 13A.222(4)(d); and (b) comply with the drafting and format requirements of KRS Chapter 13A.
30 KAR 5:020 & E. General provisions. 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 6 were amended to comply with the drafting and format requirements of KRS Chapter 13A; and (4) a new Section 7 was created to incorporate by reference the required application form.
30 KAR 5:030 & E. Acceptance and refusal of records. 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 6 were amended to comply with the drafting and format requirements of KRS Chapter 13A; and (4) Sections 3 and 4 were amended to delete provisions that repeated or summarized statute, as prohibited by KRS 13A.120(2)(e) and (f).
30 KAR 5:040 & E. UCC Information Management System. 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 11, 13, 14, and 15 were amended to comply with the drafting and format requirements of KRS Chapter 13A; and (4) Sections 7 and 15 were amended to delete provisions that repeated or summarized statute, as prohibited by KRS 13A.120(2)(e) and (f).
30 KAR 5:050 & E. Filing and data entry procedures. 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 and 2 were amended to comply with the drafting and format requirements of KRS Chapter 13A; and (4) Section 2(3) was amended to delete provisions that repeated or summarized statute, as prohibited by KRS 13A.120(2)(e) and (f).
30 KAR 5:060 & E. Search requests and reports. This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to correct statutory citations; (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220(3)(f); and (3) Sections 1, 2, 3, and 5 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Kentucky Employees' Retirement System: General Rules
105 KAR 1:160. Sick leave plans. William Hanes, General Manager, Mark Roberts, and Eric Wampler, Counsel, represented the System.
This administrative regulation was amended as follows: (1) the RELATES TO paragraph was amended to add statutory citations; and (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 5 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
105 KAR 1:210. Disability procedures. This administrative regulation was amended as follows: the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 4, 6 through 8, and 10 through 15 were amended for: (1) clarity; and (2) to comply with the drafting and format requirements of KRS Chapter 13A.
105 KAR 1:290. Medical insurance reimbursement plan. This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY and NECESSITY, FUNCTION AND CONFORMITY paragraphs were amended to correct a statutory citation; and (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 2, 5, and 8 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
105 KAR 1:300. Determination of service credit for classified employees. In response to a question by Chairman Arnold, Mr. Hanes stated that the System was amending this administrative regulation to conform with changes to KRS 78.615(1)(c), as enacted by the 2001 General Assembly. Classified employees will now receive 12 months credit for working 180 days during the school year, rather than 185 days.
This administrative regulation was amended as follows: (1) the RELATES TO, STATUTORY AUTHORITY, and NECESSITY, FUNCTION AND CONFORMITY paragraphs were amended to add or correct statutory citations; and (2) Section 2 was amended change the word "percentage" to "ratio."
105 KAR 1:320. Proration of service credit. This administrative regulation was amended as follows: Sections 1 through 3 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
105 KAR 1:330. Purchase of service credit. This administrative regulation was amended as follows: (1) the RELATES TO paragraph and Section 5 were amended to add a statutory citation; and (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Sections 3 through 5 were amended for: (a) clarity; and (b) to comply with the drafting requirements of KRS Chapter 13A.
105 KAR 1:340. Rollovers and transfers of contributions in other plans. This administrative regulation was amended as follows: (1) the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Section 1 were amended to add and correct statutory citations; (2) Section 4 was amended to clearly establish the meaning of "entire amount"; and (3) Sections 1 through 6 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Kentucky Board of Dentistry
201 KAR 8:440. Biennial fee schedule and registration. Gary Munsie, Director, and Mark Brengelman, Assistant Attorney General, represented the Board.
This administrative regulation was amended as follows: statutory citations in the RELATES TO and STATUTORY AUTHORITY paragraphs were corrected.
Board of Physical Therapy
201 KAR 22:052. Complaint procedure and disciplinary action of licensee, certificant or applicant. Becky Klusch Hughes, Executive Director, and Mark Brengelman, Assistant Attorney General, represented the Board.
This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY paragraph was amended to correct statutory citations; and (2) Sections 1 through 5 were amended to comply with the drafting and formatting requirements of KRS Chapter 13A.
201 KAR 22:150. Impaired practitioners alternative program. This administrative regulation was amended as follows: Sections 1,2,3, 5, and 6 were amended to comply with the drafting and formatting requirements of KRS Chapter 13A and to clarify requirements.
Board of Licensure and Certification for Dietitians and Nutritionists
201 KAR 33:015. Application; approved programs. Nancy Black, Executive Director, Carolyn Breeding, Chairman, and James Grawe, Assistant Attorney General, 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; (2) Sections 1 and 2 were amended to comply with the formatting and drafting requirements of KRS Chapter 13A; and (3) Section 3 was amended to incorporate by reference required material.
201 KAR 33:060. Supervision requirements. 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; (3) Section 1 was amended to include definitions of appropriate terms; and (4) Section 2 was amended to clearly state the responsibility of the licensed supervisor.
Board of Certification for Professional Art Therapists
201 KAR 34:050. Complaint procedure. Nancy Black, Executive Director, and James Grawe, Assistant Attorney General, represented the Board.
This administrative regulation was amended as follows: the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 3 and 4 were amended to comply with the drafting requirements of KRS Chapter 13A.
Board of Certification for Fee-Based Pastoral Counselors
201 KAR 38:070. Renewal of certificates and continuing education. Nancy Black, Executive Director, Rick Underwood, Chairman, and Mark Brengelman, Assistant Attorney General, represented the Board.
In response to questions by Representative Allen, Ms. Black stated that the fee established by this administrative regulation has not been increased and does not apply to ministers. It only applies to certified, fee-based pastoral counselors who provide counseling services.
In response to questions by Representative Allen, Mr. Underwood stated that there are currently 40 certified fee-based pastoral counselors in Kentucky.
This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to correct statutory citations; and (2) Section 1, 3, 4, and 6 were amended to comply with the drafting requirements of KRS Chapter 13A.
Department Of Agriculture: Agricultural Pest Control
302 KAR 27:010. Definitions for 302 KAR Chapter 27. Mark Farrow, General Counsel, Ira Linville, Executive Director, and John McCauley, Director, represented the Department.
This administrative regulation was amended as follows: (1) Section 1 was amended to comply with KRS 13A.120(2)(e); and (2) a new Section 2 was created to establish an effective date of July 1, 2002.
302 KAR 27:020. General provisions. This administrative regulation was amended as follows: (1) Sections 1 and 2 were amended to delete the provisions regarding compatibility and severability to comply with KRS 13A.120(2)(d); (2) the STATUTORY AUTHORITY paragraph and Sections 4 and 6 were amended to correct statutory citations; (3) Section 6(2) was deleted pursuant to KRS 13A.120(2)(e); and (4) a new Section 6 was created to establish an effective date of July 1, 2002.
302 KAR 27:030. Pesticide sales agents. This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to correct statutory citations; and (2) a new Section 5 was created to establish an effective date of July 1, 2002.
302 KAR 27:040. Prison inmates. In response to questions by Senator Pendleton, Mr. Farrow stated that because so many prison inmates apply for pesticide licenses yet do not activate their licenses upon release, this administrative regulation was necessary to establish some restrictions and guidelines for these applicants.
This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY paragraph and Section 1 were amended to correct statutory and regulatory citations; and (2) a new Section 2 was created to establish an effective date of July 1, 2002.
302 KAR 27:050. Certification. In response to questions by Representative Bruce, Mr. Farrow stated that an examination is not required to be certified as a private applicator of pesticides. An applicant only has to take a two-hour training program administered by county extension agents.
This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs and Sections 2, 4, and 7 were amended to correct statutory citations; (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 8 were amended to comply with the format and drafting requirements of KRS Chapter 13A; and (3) a new Section 9 was created to establish an effective date of July 1, 2002.
302 KAR 27:060. Fine schedule for violation of KRS 217B.120. This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Sections 1, 3, and 5 were amended to comply with the drafting and format requirements of KRS Chapter 13A; and (2) a new Section 5 was created to establish an effective date of July 1, 2002.
Ornamental Turf Lawn and Interior Plantscape Pest Control
302 KAR 28:010. Definitions for 302 KAR Chapter 28. This administrative regulation was amended as follows: (1) Section 1 was amended to comply with KRS 13A.120(2)(e); and (2) a new Section 2 was created to establish an effective date of July 1, 2002.
302 KAR 28:020. General provisions. This administrative regulation was amended as follows: (1) Sections 1 and 2 were amended to delete the provisions regarding compatibility and severability, pursuant to KRS 13A.120(2)(d); (2) Sections 4 and 6 were amended to correct statutory citations; (3) Section 6(2) was deleted pursuant to KRS 13A.120(2)(e); and (4) a new Section 7 was created to establish an effective date of July 1, 2002.
302 KAR 28:030. Ornamental and interior plantscape posting. This administrative regulation was amended as follows: (1) the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 1 were amended to comply with the formatting and drafting requirements of KRS Chapter 13A; and (2) a new Section 2 was created to establish an effective date of July 1, 2002.
302 KAR 28:040. Prison inmates. This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY paragraph and Section 1 were amended to correct statutory and regulatory citations; and (2) a new Section 2 was created to establish an effective date of July 1, 2002.
302 KAR 28:050. Certification. This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs and Section 4 were amended to correct statutory citations; (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 2, 3, 4, 6, and 7 were amended to comply with the format and drafting requirements of KRS Chapter 13A; and (3) a new Section 8 was created to establish an effective date of July 1, 2002.
302 KAR 28:060. Fine schedule for violation of KRS 217B.120. This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Sections 1, 3, and 5 were amended to comply with the drafting and format requirements of KRS Chapter 13A; and (2) a new Section 5 was created to establish an effective date of July 1, 2002.
Structural Pest Control
302 KAR 29:010. Definitions for 302 KAR Chapter 29. This administrative regulation was amended as follows: (1) Section 1 was amended to comply with KRS 13A.120(2)(e); and (2) a new Section 2 was created to establish an effective date of July 1, 2002.
302 KAR 29:020. General provisions. This administrative regulation was amended as follows: (1) Sections 1 and 2 were amended to delete the provisions regarding compatibility and severability, pursuant to KRS 13A.120(2)(d); (2) Sections 4 and 5 were amended to correct statutory citations; (3) Section 5(2) was deleted pursuant to KRS 13A.120(2)(e); and (4) a new Section 7 was created to establish an effective date of July 1, 2002.
302 KAR 29:040. Settlement proceedings. This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Sections 2 and 4 were amended to comply with the drafting and format requirements of KRS Chapter 13A; and (2) a new Section 5 was created to establish an effective date of July 1, 2002.
302 KAR 29:050. Commercial structural pest control and fumigation. This administrative regulation was amended as follows: (1) Section 2 was amended to require applicants to use an application form; (2) Sections 8 and 11 were amended to correct statutory citations; (3) a new Section 14 was created to incorporate by reference the required forms; and (4) a new Section 15 was created to establish an effective date of July 1, 2002.
302 KAR 29:060. Certification. In response to questions by Senator Pendleton, Mr. Farrow stated that because most prison inmates could not qualify for a structural pest control license, the Department has not promulgated structural pest control licensing procedures for inmates.
This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs and Sections 1 and 3 were amended to correct statutory citations; (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 7 were amended to comply with the format and drafting requirements of KRS Chapter 13A; and (3) a new Section 8 was created to establish an effective date of July 1, 2002.
302 KAR 29:070. Fine schedule for violation of KRS 217B.550. This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Sections 1 and 5 were amended to comply with the drafting and format requirements of KRS Chapter 13A; and (2) a new Section 5 was created to establish an effective date of July 1, 2002.
Pesticides
302 KAR 31:006. Repeal of 302 KAR 31:005, 302 KAR 31:010, 302 KAR 31:011, 302 KAR 31:015, 302 KAR 31:025, 302 KAR 31:030, 302 KAR 31:035. This administrative regulation was amended as follows: a new Section 2 was created to establish an effective date of July 1, 2002.
Justice Cabinet: Department of Corrections: Office of the Secretary
501 KAR 6:020. Corrections policies and procedures. Jack Damron, Counsel, represented the Department.
This administrative regulation was amended as follows: (1) various policies were amended for clarity and to comply with the drafting and format requirements of KRS Chapter 13A; and (2) proposed policy regarding the use of prisoners as subjects of research was deleted.
Transportation Cabinet: Department of Vehicle Regulation: Motor Vehicle Tax
601 KAR 9:210. Continuation of title liens. Hollie Spade, Office of General Counsel, and Mac Bushart, Director, represented the Department.
This administrative regulation was amended as follows: Section 1 was amended to comply with the drafting and formatting requirements of KRS Chapter 13A.
Department of Highways: Right-of-way
603 KAR 4:050. Limited supplemental guide signs. This administrative regulation was amended as follows: Sections 3, 4, 6, and 7 were amended to comply with the drafting and formatting requirements of KRS Chapter 13A.
Traffic
603 KAR 5:050. Uniform traffic control devices. This administrative regulation was amended as follows: Sections 2 and 3 were amended to delete references to the amendments and supplements to the Manual on Uniform Traffic Control Devices.
603 KAR 5:070. Motor vehicle dimension limits. 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 include the issuance of an official order by the Secretary to designate the Kentucky roads in the National Truck Network as provided by KRS 189.222(1) and Section 5 to conform; and (3) Section 9 was amended to change it from incorporation by reference to adopted without change.
Education, Arts, And Humanities Cabinet: Department of Libraries and Archives: Libraries
725 KAR 2:015 & E. Services and facilities for public libraries. Jim Nelson, State Librarian and Commissioner, represented the Department.
This administrative regulation was amended as follows: (1) the RELATES TO paragraph, Sections 1 and 2, and the IMPACT ANALYSIS AND TIERING STATEMENT were amended to add and correct statutory references; (2) Sections 1, 2, 4, 5, 7, and 9 were amended to comply with the drafting and format requirements of KRS Chapter 13A; and (3) a new Section 10 was created to incorporate by reference the necessary forms.
Public Service Commission: Utilities
807 KAR 5:080. Procedural and filing requirements and safeguards concerning nonregulated activities of utilities or utility affiliates. Deborah Eversole, General Counsel, and Gary Forman, Director, Division of Research, represented the Commission.
In response to questions by Chairman Arnold, Ms. Eversole stated that a “utility affiliate” is a business that is under common control with the regulated utility, but provides services that are not regulated by the Public Service Commission. This administrative regulation establishes safeguards to prevent the utilities from subsidizing their nonregulated affiliate businesses through the utility rate-payers. By statute, telecommunications utilities are exempt from this administrative regulation.
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 and Sections 1 and 2 were amended to comply with the drafting and format requirements of KRS Chapter 13A; (3) Section 2(1)(c) was amended to exempt full reporting of affiliates not doing business in Kentucky; and (4) the REGULATORY IMPACT STATEMENT was amended to: (a) delete from the calculations reference to 10 rural telephone cooperatives; and (b) add a tiering statement.
Cabinet For Health Services: Administration
900 KAR 1:060. Protection of human subjects. John Walker, Office of General Counsel, represented the Cabinet.
Mr. Walker stated that this administrative regulation creates an Institutional Review Board for the Protection of Human Subjects and establishes its procedures. The formation of this Board is mandated by federal law to ensure that the rights of individuals who participate in research projects are protected.
This administrative regulation was amended as follows: (1) the RELATES TO paragraph was amended to correct statutory citations; and (2) Sections 1 through 7 and 9 through 11 were amended for clarification and to comply with the drafting requirements of KRS Chapter 13A.
Department for Public Health: Local Health Departments
902 KAR 8:029. Repeal of 902 KAR 8:020. Dr. Rice Leach, Commissioner, Clyde Bolton, Director, and Dr. Betty Olinger, Director, represented the Department.
This administrative regulation was amended as follows: the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to specify the replacement regulations.
902 KAR 8:150. Board of health requirements. This administrative regulation was amended as follows: (1) the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs were amended to add and correct statutory citations; (2) Section 1 was amended to add the definition of "non-governing board"; and (3) Sections 1 through 8 were amended for: (a) clarity; and (b) to comply with the drafting and format requirements of KRS Chapter 13A.
902 KAR 8:160. Local health department operations requirements. This administrative regulation was amended as follows: (1) the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs were amended to add statutory citations; and (2) Sections 1 through 12 were amended to comply with the drafting requirements of KRS Chapter 13A and for clarity of meaning.
902 KAR 8:165. Local health department accounting/auditing requirements. This administrative regulation was amended as follows: (1) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to specify a statutory citation; (2) Section 1 was amended to add the definitions of "GAAP" and "OMB"; and (3) Sections 1 to 3 were amended for clarity and compliance with the drafting requirements of KRS Chapter 13A.
Department for Medicaid Services: Services
907 KAR 1:015 & E. Payments for hospital outpatient services. Duane Dringenburg, Director, and Wanda Fowler represented the Department.
In response to a question by Senator Roeding, Ms. Fowler stated that this administrative regulation would generate an initial savings of 70 million dollars because it more accurately determines reimbursement amounts for outpatient services.
In response to questions by Senator Roeding, Mr. Dringenburg stated that under this administrative regulation, the Department would no longer be overpaying for outpatient services up front. Instead, the reimbursement amounts would be much closer approximations of the provider’s actual costs which would save the Department money and would prevent the provider from having to return any excess funds.
This administrative regulation was amended as follows: the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 1 were amended to comply with the drafting requirements of KRS Chapter 13A.
907 KAR 1:038 & E. Hearing and Vision Program services. This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY paragraph was amended to correct a statutory citation; and (2) Sections 1, 2, and 4 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
907 KAR 1:065 & E. Payments for price-based nursing facility services. Duane Dringenburg, Vera Frazer, and Sharon Mercer represented the Department.
In response to questions by Senator Roeding, Ms. Mercer stated that this administrative regulation establishes reimbursement standards for swing beds and for skilled nursing facility beds in critical access hospitals. The numerical limitation of permissible acute care patients and skilled nursing facility beds only applies to critical access hospital reimbursements. Intergovernmental transfers will fund the cost of implementing this administrative regulation.
This administrative regulation was amended as follows: (1) Sections 1, 4, 5, 6, 7, 10, 12, 13, and 14 were amended to comply with the drafting and format requirements of KRS Chapter 13A; (2) Section 7 was amended to clarify and establish requirements for reviews and re-reviews; (3) Section 13 was amended to establish requirements for appeals of department decisions in accordance with an applicable administrative regulation; and (4) Section 5 was amended to clarify the standard price requirements for nursing facilities.
907 KAR 1:155 & E. Payments for supports for community living services for an individual with mental retardation or a developmental disability. In response to questions by Senator Roeding, Ms. Mercer stated that the community living waiver program provides dental services that extend beyond the services provided by the standard Medicaid dental program. The fee reimbursement limitations established by this administrative regulation apply to the community living waiver program services only. The 20 percent fee reduction does not apply to reimbursements under the standard Medicaid dental program.
This administrative regulation was amended as follows: Sections 1 through 4 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
907 KAR 1:360 & E. Preventive and remedial public health services provided through interagency agreement. This administrative regulation was amended as follows: Sections 1 through 4 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
907 KAR 1:645 & E. Resource standards for Medicaid. This administrative regulation was amended as follows: Sections 3 and 4 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
907 KAR 1:655 & E. Spousal impoverishment and nursing facility requirements for Medicaid. This administrative regulation was amended as follows: Sections 1 and 4 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
907 KAR 1:665 & E. Special income requirements for hospice and home and community based services (HCBS). This administrative regulation was amended as follows: Section 3 was amended to comply with the drafting requirements of KRS Chapter 13A.
907 KAR 1:671. Conditions of Medicaid provider participation; withholding overpayments, administrative appeal process, and sanctions. Duane Dringenberg and Zack Ramsey represented the Department.
In response to questions by Senator Roeding, Mr. Ramsey stated that the Department would notify the 58,000 Medicaid providers that would be affected by the amendments to this administrative regulation by working with their professional associations.
In response to questions by Senator Roeding, Mr. Dringenburg stated that the amendments to this administrative regulation were necessary for it to be in compliance with KRS Chapter 13B.
This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to correct statutory citations; (2) Sections 1, 2, 5, 6, 7, 8, and 9 were amended to comply with the drafting and format requirements of KRS Chapter 13A; and (3) Section 9 was amended to delete provisions that repeated statutory language, as prohibited by KRS 13A.120(2)(e) and (f).
Payment and Services
907 KAR 3:170 & E. Telehealth services and reimbursement. Tricia Salyer, Wanda Fowler, and Duane Dringenburg represented the Department.
In response to a question by Senator Roeding, Mr. Drigenburg stated that the Department was required by statute to provide telehealth services.
This administrative regulation was amended as follows: the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to correct statutory citations.
Cabinet For Families And Children: Department of Community Based Services: Family Support: Food Stamp Program
921 KAR 3:025 & E. Technical requirements. Karen Doyle and Rosanne Barkley represented the Cabinet.
In response to a question by Senator Roeding, Ms. Barkley stated that the term “qualified alien” as used in this administrative regulation was defined by federal regulation.
This administrative regulation was amended as follows: the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Sections 1 and 3 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
The Subcommittee determined that the following administrative regulations complied with statutory authority:
Secretary Of State: Kentucky Lien Information System
30 KAR 4:011. Repeal of 30 KAR 4:010. Maryellen Allen, Counsel and Division Director, represented the Secretary.
Kentucky Employees' Retirement System: General Rules
105 KAR 1:310 & E. Fred Capps Memorial Act. William Hanes, General Manger, Mark Roberts, and Eric Wampler, Counsel, represented the System.
Board of Licensure and Certification for Dietitians and Nutritionists
201 KAR 33:050. Complaint procedure. Nancy Black, Executive Director, Carolyn Breeding, Chairman, and James Grawe, Assistant Attorney General, represented the Board.
Board of Certification for Professional Art Therapists
201 KAR 34:015. Examination. Nancy Black, Executive Director, and James Grawe, Assistant Attorney General, represented the Board.
201 KAR 34:020. Fees.
Tourism Cabinet: Department of Fish and Wildlife Resources: Licensing
301 KAR 5:020. License agent requirements and responsibilities. Bob Bates, Director, and Ellen Benzing, Counsel, represented the Department.
In response to a question by Representative Allen, Mr. Bates stated that the Department was amending this administrative regulation only to correct typographical errors.
Education Professional Standards Board
704 KAR 20:305. Written examination prerequisites for teacher certification. Mary Ellen Wiederwohl, Legislative Liaison, represented the Board.
Department of Housing, Buildings and Construction: Plumbing
815 KAR 20:020. Parts or materials list. Janet Hall, General Counsel, and Tim Faust, Field Supervisor, represented the Department.
Department for Medicaid Services: Services
907 KAR 1:072 & E. Payments for homecare waiver services. Duane Dringenburg, Vera Frazer, and Sharon Mercer represented the Department.
In response to a question by Senator Roeding, Ms. Mercer stated that, currently, only 42 individuals receive services under this homecare waiver services program. The Department is attempting to increase participation in this program.
907 KAR 1:092 & E. Payments for personal care assistance waiver services. In response to a question by Senator Roeding, Ms. Mercer stated that personal care assistant waivers are limited to individuals that have lost the use of two or more limbs. The waivers authorize the recipients to hire, fire, and train their personal care providers. Currently, only six recipients participate in this waiver services program.
907 KAR 1:626 & E. Reimbursement of dental services.
907 KAR 1:640 & E. Income standards for Medicaid. In response to questions by Senator Roeding, Ms. Fowler stated that the amendments to this administrative regulation regarding primary care centers were for clarification purposes only. The amendments merely delete unnecessary language and do not affect the substance of the administrative regulation.
Payment and Services
907 KAR 3:010 & E. Reimbursement for physicians' services. Tricia Salyer, Wanda Fowler, and Duane Dringenburg represented the Department.
907 KAR 3:100 & E. Payments for acquired brain injury services.
The Subcommittee and the promulgating administrative agencies agreed to defer consideration of the following administrative regulations to the next meeting of the Subcommittee:
Department Of Law: Office of the Attorney General: Racial Profiling
40 KAR 7:010. Procedures for reporting allegations of racial profiling.
Board of Medical Licensure
201 KAR 9:016. Restrictions on use of amphetamine and amphetamine-like anorectic controlled substances.
Board of Examiners of Psychology
201 KAR 26:125E. Health service provider designation.
201 KAR 26:130E. Complaint procedure.
201 KAR 26:145E. Code of conduct.
201 KAR 26:155E. Licensed psychologist application procedures and temporary license.
201 KAR 26:160E. Fee schedule.
201 KAR 26:171E. Requirements for supervision.
201 KAR 26:185E. Requirements for granting licensure as a psychologist to an applicant licensed in another state.
201 KAR 26:190E. Requirements for supervised professional experience.
201 KAR 26:210E. Definitions of terms used by the Board of Examiners of Psychologists for meeting educational requirements for licensure as a licensed psychological associate.
201 KAR 26:230E. Examinations.
201 KAR 26:250E. Employment of a psychological associate.
201 KAR 26:270E. Change of credential status.
201 KAR 26:280E. Licensed psychological associate application procedures and temporary license.
201 KAR 26:290E. Licensed psychological practitioner application procedures and temporary license.
201 KAR 26:300E. Definitions of terms used by the Board of Examiners of Psychologists for meeting educational requirements for licensure as a licensed psychological practitioner.
Commercial Mobile Radio Service Emergency Telecommunications Board
202 KAR 6:070E. PSAP Workload Fund disbursement.
Tourism Cabinet: Department of Fish and Wildlife Resources: Game
301 KAR 2:225E. Dove, wood duck, teal, and other migratory game bird hunting.
Department Of Agriculture: Livestock Sanitation
302 KAR 20:070. Stockyards.
Justice Cabinet: Department of Corrections: Office of the Secretary
501 KAR 6:060. Northpoint Training Center.
Department of Criminal Justice Training: Kentucky Law Enforcement Council
503 KAR 1:150 & E. Department of Criminal Justice Training - Kentucky Police Corps basic training: graduation requirements; records.
General Training Provision
503 KAR 3:060 & E. Department of Criminal Justice Training - Kentucky Police Corps basic training course cadet conduct requirements; procedures and penalties.
Department of Insurance: Authorization of Insurers and General Requirements
806 KAR 3:210E. Privacy of consumer financial information.
806 KAR 3:220E. Privacy of health information.
Health Insurance Contracts
806 KAR 17:180E. Standard health benefit plan and comparison format.
806 KAR 17:360. Prompt payment of claims.
806 KAR 17:380. Repeal of 806 KAR 17:066.
Kentucky Mine Safety Review Commission: Kentucky Mine Safety Review
825 KAR 1:020E. Administrative hearing procedures.
Cabinet For Health Services: Department for Public Health: Local Health Departments
902 KAR 8:170. Local health department financial management requirements. Dr. Rice Leach, Commissioner, Clyde Bolton, Director, and Dr. Betty Olinger, Director, represented the Department. James Robert Ratliff, Public Health Director, Gateway District Health Department, and President of the Kentucky Health Department Association, appeared in response to this administrative regulation. Larry Davis, Public Health Director, Marshall County, and Robert Fritz, Christian County Health Department and Christian County Board of Health, appeared in opposition to this administrative regulation.
In response to a question by Chairman Arnold, Dr. Leach stated that the amendments to this administrative regulation did not authorize the Department to remove money from local health departments. If local health departments accrue funds in excess of 20 percent of that year’s expenditures for non-fee programs, this administrative regulation allows them to keep it if they transfer the excess funds from an unrestricted account to a restricted account and if they have an approved plan of usage for the excess funds. It also authorizes local health departments to retrieve the excess funds from the restricted accounts if unexpected events occur.
In response to questions by Senator Pendleton, Dr. Leach stated that the Department is committed to the idea that local health departments should be allowed to keep all excess funds they earn and that the Department has amended this administrative regulation to clearly reflect that commitment.
In response to questions by Senator Roeding, Dr. Leach stated that this administrative regulation allows local health departments to keep any excess funds they accrue but also ensures there is accountability to the Department regarding the use of those excess funds. It establishes a system of negotiated approval before local health departments may use those funds.
In response to questions by Senator Roeding, Mr. Bolton stated that this administrative regulation did not establish a schedule of fees for services provided to self-pay patients by local health departments. Instead, it provides flexibility to local health departments by authorizing them to set appropriate fees for those services.
Mr. Ratliff stated that the Kentucky Health Department Association had decided to remain neutral on this administrative regulation if the Cabinet for Health Services permits unrestricted funds in excess of the 20 percent limitation to be transferred to a restricted fund subject to an approved plan for usage, if the Cabinet would not subject the excess funds to recoupment, and if local health departments would have flexibility in designing usage plans for the excess funds.
Mr. Davis stated that he was opposed to this administrative regulation because the proposed amendments are not necessary and would not enhance the services his local health department provides. By limiting the amount of excess funds local health departments may accrue in unrestricted accounts, this administrative regulation jeopardizes their ability to cover unexpected expenses and to provide programs in addition to the statutorily-mandated ones. Under KRS 211.190, local boards of health are responsible for the operation and management of the local health departments, not the Cabinet for Health Services. Additionally, by restricting the amount of health professionals local health departments are allowed to send to out-of-state meetings, this administrative regulation prevents them from providing quality training to as many employees as possible.
Mr. Fritz stated that he was opposed to this administrative regulation because it fails to clearly state that the excess funds would be transferable into local restricted accounts. Additionally, local health departments need greater access to excess funds than this administrative regulation permits. Because local health departments depend on those funds to cover expenses while waiting to receive state funding, local health departments should be allowed to carry over at least 50 percent, rather than 20 percent, of the previous year’s budget.
Dr. Leach stated that the Department is attempting to simplify the budget process for local health departments so that they can receive their state funding closer to the beginning of the fiscal year rather than having to rely on excess funds to cover expenses.
Senator Pendleton made a motion to defer consideration of this administrative regulation. Without objection, and with the agreement of the agency, this administrative regulation was deferred.
State Health Plan
902 KAR 17:041E. State Health Plan for facilities and services.
Department for Medicaid Services: Services
907 KAR 1:013E. Payments for hospital inpatient services.
907 KAR 1:025E. Payment for services provided by an intermediate care facility for the mentally retarded and developmentally disabled, a dually-licensed pediatric facility, an institution for mental diseases, a nursing facility with an all-inclusive rate unit.
907 KAR 1:031E. Payments for home health services.
907 KAR 1:170E. Payments for home and community based waiver services.
907 KAR 1:320E. Kentucky Patient Access and Care System (KenPAC).
Payment and Services
907 KAR 3:090E. Acquired brain injury services.
Cabinet For Families And Children: Department of Community Based Services: Family Support: Food Stamp Program
921 KAR 3:020E. Financial requirements.
Protection and Permanency: Child Welfare
922 KAR 1:450E. Tuition waiver for foster and adopted children.
OTHER BUSINESS
In response to a recent Courier-Journal newspaper article and editorial, Representative Lee made a statement regarding the Subcommittee’s finding of deficiency on 907 KAR 1:021, Amounts payable for drugs, promulgated by the Cabinet for Health Services, Department for Medicaid Services. Representative Lee stated that as Chairman of the Human Service Budget Committee, there was no one in the General Assembly that was more attuned to the needs of those that cannot speak for themselves and over the half a million Kentuckians that are served in the Medicaid program. He further stated that he certainly resented anyone implying that he would take any type of funding from those individuals that are served in the Medicaid program.
Representative Lee explained that the Subcommittee found that administrative regulation deficient because it was a blatant abuse of regulatory power by a Cabinet and because it went so far beyond legislative intent. Under KRS Chapter 13A, the Subcommittee is obligated to approve an administrative regulation if it meets legislative intent. Because 907 KAR 1:021 did not follow the intent of KRS 205.561, the Subcommittee did exactly what it was mandated to do under KRS Chapter 13A and that was to find that regulation deficient. The Subcommittee is not a “shadowy abuse of power” that operates in the dark. Rather, the Subcommittee’s meeting room is well lighted and open to anyone who wants to listen or come forth and express an opinion on an administrative regulation. Since 1984, the Subcommittee has reviewed 10,870 administrative regulations and has found only 155 of them deficient. Of the 155 that were found deficient, after further consideration, objections to 40 of them were removed, ninety-three of them expired, 15 were withdrawn, two were repealed, and five were replaced by subsequent legislation.
Senator Roeding also made a statement in response to the recent Courier-Journal article and editorial. He stated that by finding 907 KAR 1:021 deficient, the Subcommittee had finally stood up for legislative independence and that the Subcommittee needed to do so again with another administrative regulation from the Cabinet, 907 KAR 1:019E, Outpatient pharmacy program. He explained that because that administrative regulation contradicts and changes statutory provisions, it was another total abuse of regulatory power by the Cabinet. Despite the well-accepted doctrine in Kentucky that the legislature enacts public policy and the executive branch implements and executes that policy, “Kentucky’s executive branch has consistently filed regulations that ignore statutory language and legislative intent” with 907 KAR 1:019E being a flagrant example. The Subcommittee must ensure that the separation of power continues and that the democratic process is protected.
The Subcommittee adjourned at 12:15 p.m. until December 11, 2001, at 10 a.m. in Room 149 of the Capitol Annex.