The June meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, June 11, 2002, 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: Michael A. Mone, Board of Pharmacy; Ellen Benzing, Jonathan Gassett, Scott Porter, Department of Fish and Wildlife; Mark Farrow, Edward S. Ford III, Don L. Notter, DVM, Ann Stewart, Department of Agriculture; Jack Damron, Brenda Priestley, Department of Corrections; Lois Adams-Rodgers, Department of Education; Carla H. Montgomery, Department of Workers' Claims; Jay Thompson, Glenn Jennings, Char Hummel, Malinda S. Pressor, Department of Insurance; Simeon Parker, Terry M. Slade, Janet M. Hall, Department of Housing, Buildings and Construction; Sam Burnett, Ken Spach, Vera Frazer, Sharon Eli Mercer, Jim Carreers, Cabinet for Health Services; Nancy Smith Alexander, Marla Aldridge, B.J. Jacobs, Karen Doyle, Rosanne Barkley, Shirley Eldridge, Stephanie Brammer-Barnes, Joyce Lea, Cabinet for Families and Children; Kathy A. Mefford, Three Rivers District Health Department; Karen Cooper, Kentucky River District Health Department; Shawn D. Crabtree, Lake Cumberland District Health Department; David Cammack, Jessamine County Health Department; Renee Blair, Lloyd W. Peniston, North Central District Health Department; Deborah Acker, local health departments; James Ratliff, Kentucky Health Department Association; Ned Fitzgibbons, Bullitt County Health Department; Bart Baldwin, Children's Alliance.
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:
Board of Pharmacy
201 KAR 2:105. Licensing and drug distribution requirements for drug manufacturers and wholesalers. Michael Mone represented the Board.
In response to questions by Senator Roeding, Mr. Mone stated that this administrative regulation’s drug manufacturer requirements did not apply to pharmacists compounding drugs based upon a received prescription or regular prescribing patterns. In those contexts, federal regulation exempted pharmacists from being considered manufacturers. However, the requirements did apply to pharmacists compounding drugs to sell to another pharmacy. Additionally, public health clinics were authorized under Section 3(3) of this administrative regulation to purchase federal legend drugs from licensed manufacturers and wholesalers because of their affiliation with licensed pharmacists.
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; and (3) Sections 1 to 8 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Tourism Cabinet: Department of Fish and Wildlife Resources: Fish
301 KAR 1:015. Boats and motor restrictions. Scott Porter, General Counsel, Ellen Benzing, Counsel, and Jonathan Gassett, Division Director, represented the Department.
This administrative regulation was amended as follows: Sections 1, 3, 4, and 6 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Department Of Agriculture: Livestock Sanitation
302 KAR 20:110 & E. Treatment of imported mares. Mark Farrow, General Counsel, Dr. Don Notter, State Veterinarian, and Edward S. Ford III represented the Department.
This administrative regulation was amended as follows: Sections 1, 2, 4, and 5 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
302 KAR 20:140 & E. Breeding shed for female equines. This administrative regulation was amended as follows: (1) the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 to 4 were amended to comply with the drafting and format requirements of KRS Chapter 13A; and (2) Sections 2 and 3 were amended to specify that that the testing requirements must be satisfied before the mares may be bred in Kentucky.
302 KAR 20:220. Pseudorabies: eradication and control. In response to questions by Senator Roeding, Dr. Notter stated that this administrative regulation was amended to eliminate swine slaughter feed lots because there were no active lots currently and because of their high risk of disease. The pork industry also favored their elimination.
This administrative regulation was amended as follows: (1) the RELATES TO, STATUTORY AUTHORITY, and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Sections 1, 4, and 6 were amended to specify statutory citations; and (2) Sections 1, 3, 5, and 6 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
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) Section 1(1) was amended to comply with the drafting and format requirements of KRS Chapter 13A; and (2) CPP 5.1 was amended to: (a) insert a reference to 45 CFR 46, the federal regulation governing human studies; (b) require the consent form to include an explanation to the inmate of the goals and expectations of the research project; and (c) clarify in the consent form that the inmate was releasing the Department from liability for any personal injuries to the inmate resulting from the research project.
Education, Arts, And Humanities Cabinet: Kentucky Board of Education: Department of Education: Office of District Support Services: General Administration
702 KAR 1:035. Group health and life insurance. Lois Adams-Rodgers, Deputy Commissioner, Keena Cole, Associate Commissioner, and Debbie Hendrick, Liaison, represented the Board.
In response to a question from Senator Roeding, Ms. Cole stated that blended employees were part-time certified teachers who also worked part-time in noncertified positions. Their combined hours rendered them eligible for health insurance.
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.
School Administration and Finance
702 KAR 3:300. Approval for school district lease and retirement incentive annuity agreements. This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY paragraph was amended to correct 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 and 3 were amended to comply with the drafting requirements of KRS Chapter 13A.
School Terms, Attendance and Operation
702 KAR 7:065. Designation of agent to manage high school interscholastic athletics. In response to questions by Representative Bruce, Ms. Adams-Rodgers stated that by statute, the Board was required to designate an agent to manage high school athletics in Kentucky and so designated the Kentucky High School Athletic Association in this administrative regulation. The Board amended this administrative regulation to update the material incorporated by reference, the KHSAA Handbook. The updated handbook authorized schools to utilize a level two coach if they could not find a level one coach, a coach who also served as a full-time certified faculty member. Qualified level two coaches ranged from those with 64 hours of college credits to high school graduates who were in compliance with local district standards.
In response to questions by Chairman Arnold, Ms. Adams-Rodgers stated that the Handbook’s rules regarding leveled coaches did not apply to assistant coaches.
This administrative regulation was amended as follows: (1) Sections 2, 3, and 5 were amended to comply with the drafting and format requirements of KRS Chapter 13A; and (2) the KHSAA Handbook was amended to clarify requirements and deadlines.
Labor Cabinet: Department of Workers' Claims
803 KAR 25:021. Individual self-insurers. Carla Montgomery represented the Department.
This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to correct statutory citations; (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220(3)(f); and (3) Sections 1, 3, 9, 13, and 14 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
803 KAR 25:026. Group self-insurers. 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, 3, 4, 6, 7, 8, 10, and 12 were amended to comply with the drafting and format requirements of KRS Chapter 13A and the group self-insurer requirements of KRS 342.350(4).
Public Protection And Regulation Cabinet: Department of Insurance: Health Insurance Contracts
806 KAR 17:081. Minimum standards for long-term care insurance policies. Char Hummel, Counsel, Glenn Jennings, Deputy Commissioner, and Jay Thompson, Branch Manager, represented the Department.
In response to a question by Senator Roeding, Mr. Jennings stated that this administrative regulation was amended to unify Kentucky’s long-term care insurance requirements with the requirements of most other states. The uniformity enabled long-term care insurance polices to be issued in Kentucky without any greater difficulty or expense.
This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs, and Sections 1 to 20, 22 to 27, and 29 were amended to comply with the drafting and format requirements of KRS Chapter 13A; and (2) Section 18 was amended to delete the provision authorizing the commissioner to exempt insurers from statutory reporting requirements.
Department of Housing, Buildings and Construction: Kentucky Building Code
815 KAR 7:120 & E. Kentucky Building Code/2002. Terry Slade, Acting Director, Janet Hall, General Counsel, and Simeon Parker, Assistant Director, represented the Department.
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 to 5 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
815 KAR 7:125 & E. Kentucky Residential Code/2002. 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 to 3 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Cabinet For Health Services: Department for Medicaid Services: Services
907 KAR 1:340. Reimbursement for hospice services. Sharon Mercer, Director, and Vera Frazer, Assistant Director, represented the Department.
In response to questions by Senator Roeding, Ms. Mercer stated that the Department amended this administrative regulation to include their reimbursement methodology for hospice services, which had previously been in their policy and procedure manual. Pursuant to a federal mandate, the methodology established four levels of reimbursement which corresponded with the four levels of hospice care, with a lifetime reimbursement cap of $16,650.85.
This administrative regulation was amended as follows: the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 3, 5, and 6 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Cabinet For Families And Children: Department of Community Based Services: Family Support: K-TAP, Kentucky Works, Welfare to Work, State Supplementation
921 KAR 2:015 & E. Supplemental programs for persons who are aged, blind, or have a disability. Joyce Lea and Karen Doyle represented the Department.
In response to questions by Senator Roeding, Ms. Doyle stated that the 2002 Supplemental Security Income cost of living increase was a federal requirement which was funded with Kentucky general fund dollars.
This administrative regulation was amended as follows: (1) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to include specific authorizing language; (2) Section 1(2) was amended to cite to a definition in KRS 194B.005; and (3) Sections 2, 3, 6, and 13 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Protection and Permanency: Child Welfare
922 KAR 1:320. Service appeals. Stephanie Brammer-Barnes and Karen Doyle represented the Department.
This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to correct statutory citations; (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to more fully state the necessity for the administrative regulation; and (3) Sections 1 to 9 were amended to comply with drafting requirements of KRS Chapter 13A.
The Subcommittee determined that the following administrative regulations complied with statutory authority:
Tourism Cabinet: Department of Fish and Wildlife Resources: Game
301 KAR 2:049. Small game and furbearer hunting on public areas. Scott Porter, General Counsel, Ellen Benzing, Counsel, and Jonathan Gassett, Division Director, represented the Department.
In response to questions from Representative Allen, Mr. Mone stated that this administrative regulation was amended to establish a quota for fox hunting field trials to prevent excessive eradication of the fox population. If a regulation contained a dog-leashing requirement for hunts, the dogs could be unleashed once the hunts had begun.
301 KAR 2:140 & E. Requirements for wild turkey hunting. In response to questions from Senator Roeding, Mr. Porter stated that the amendments to this administrative regulation lightened and simplified the reporting requirements for wild turkey hunters.
301 KAR 2:142 & E. Spring wild turkey hunting.
301 KAR 2:172. Deer hunting seasons and requirements. In response to questions from Senator Roeding, Mr. Porter stated that while the amendments to this administrative regulation lightened and simplified the written reporting requirements for deer hunters, they did not alter the existing deer checking requirements.
301 KAR 2:174. Deer hunting zones.
301 KAR 2:176. Deer control tags. In response to a question by Senator Roeding, Mr. Gassett stated that if an antlered deer was taken under a destruction permit, the amendments to this administrative regulation required the antlers to be turned into the Department. The Department instituted the new requirement to discourage hunters seeking additional antler trophies from applying for destruction permits.
301 KAR 2:179. State park deer hunts. In response to a question from Senator Roeding, Mr. Mone stated that this administrative regulation was amended to reduce the application fee for the pheasant quota hunts to $3 and to increase the hunting fee to $25 to ensure that those chosen to participate in the hunts bore the hunt costs, rather than the unsuccessful applicants.
301 KAR 2:251. Hunting and trapping seasons and limits for furbearers and small game.
Justice Cabinet: Department of Corrections: Office of the Secretary
501 KAR 6:040. Kentucky State Penitentiary. Jack Damron, Counsel, represented the Department.
In response to a question by Representative Lee, Mr. Damron stated that Corrections administrators could not internally amend the policies and procedures incorporated by reference in this administrative regulation. The polices could be amended only through the administrative regulation amendment process established by KRS Chapter 13A.
501 KAR 6:050. Luther Luckett Correctional Complex.
501 KAR 6:080. Department of Corrections manual.
Department of Housing, Buildings and Construction: Plumbing
815 KAR 20:020. Parts or materials list. Terry Slade, Janet Hall, General Counsel, and Simeon Parker represented the Department.
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.
Revenue Cabinet: General Administration
103 KAR 1:050. Forms manual.
Tourism Cabinet: Department of Fish and Wildlife Resources: Game
301 KAR 2:075. Wildlife rehabilitation permits.
Hunting and Fishing
301 KAR 3:022. License, tax and permit fees.
Water Patrol
301 KAR 6:040E. Zoning or marking of waterways.
Department Of Agriculture: Livestock Sanitation
302 KAR 20:010. Definitions. Mark Farrow, General Counsel, Dr. Don Notter, State Veterinarian, and Edward S. Ford III, Equine Program, represented the Department.
Senator Roeding made a motion to defer consideration of this administrative regulation. Without objection, and with the agreement of the agency, this administrative regulation was deferred.
302 KAR 20:100. Garbage. In response to questions by Representative Allen, Dr. Notter stated that this administrative regulation was amended to eliminate the feeding of garbage to swine to prevent the transmission of disease. The amendments prohibited the feeding of personal garbage, including table scraps, and also prohibited the feeding of garbage collected from institutions such as restaurants or hospitals. They did not prohibit the feeding of unprocessed farm produce to swine because it was not included in the definition of garbage. The Department amended this regulation to prohibit the feeding of all garbage to swine, even if it was treated, because it had been too difficult for the Department to monitor and enforce compliance with the garbage treatment requirements. Violations of this administrative regulation could result in fines.
In response to questions by Senator Roeding, Mr. Farrow stated that the amendments to this administrative regulation did not prevent the feeding of any manufactured feed products to swine, such as feed made from the byproducts of feathered domestic animals.
Chairman Arnold stated that he was concerned that as amended, this administrative regulation prohibited a person raising swine for his own use from feeding them his personal leftovers. He suggested that the scope of the administrative regulation be narrowed to apply only to those raising swine for commercial purposes.
Senator Roeding stated that the prior version of the regulation did not apply to table scraps because they were excluded from the definition of garbage.
Mr. Farrow stated that the Department wanted to defer the Subcommittee’s consideration of this administrative regulation so the Department could reconsider the scope of its application. Without objection, this administrative regulation was deferred.
Justice Cabinet: Department of Criminal Justice Training: Kentucky Law Enforcement Council
503 KAR 1:110E. Department of Criminal Justice Training basic training: graduation requirements; records.
Public Protection And Regulation Cabinet: Department of Mines and Minerals: Sanctions and Penalties
805 KAR 8:010. Definitions for 805 KAR Chapter 8.
805 KAR 8:030. Criteria for the imposition and enforcement of sanctions against certified miners.
805 KAR 8:040. Criteria for the imposition and enforcement of sanctions against owners and part-owners of licensed premises.
805 KAR 8:050. Criteria for the imposition and enforcement of sanctions against noncertified personnel.
805 KAR 8:060. Criteria for the imposition and enforcement of sanctions against licensed premises.
Kentucky Racing Commission: Harness Racing
811 KAR 1:105. Review and appeal.
Cabinet For Health Services: Department for Public Health: Communicable Diseases
902 KAR 2:151. Repeal of 902 KAR 2:150 and 902 KAR 2:160.
902 KAR 2:180. Human immunodeficiency virus/acquired immunodeficiency disease syndrome (HIV/AIDS) education approval requirements.
Sanitation
902 KAR 10:085. Kentucky on-site sewage disposal systems. Sam Burnett, Dr. Rice Leach, Public Health Commissioner, and Ken Spach represented the Department. Ned Fitzgibbons appeared in opposition to this administrative regulation.
In response to questions by Senator Pendleton, Mr. Burnett stated that this administrative regulation was amended to permit only the use of synthetic filter fabric, rather than straw, as a barrier for lateral lines for low pressure pipe systems due to concerns regarding the straw’s faster rate of decomposition.
In response to questions by Representative Allen, Mr. Burnett stated that as amended, this administrative regulation permitted sites previously classified as unsuitable for on-site sewage disposal systems, such as sites with compacted soil, to be upgraded and classified as suitable. Once a site was upgraded, the system could be installed without any further waiting period.
In response to questions by Senator Roeding, Dr. Leach stated that, due to concerns regarding soil sufficiency in the alternate sites, this administrative regulation was amended to prohibit the installation of sewage disposal systems in areas different than the designated installation areas even if the local health department approved the new sites.
Mr. Fitzgibbons stated that he was representing the Health Care Advisory Council and the Council was opposed to certain provisions in this administrative regulation. The Council was concerned that the Department did not minimally define usable land space for an on-site system, yet permitted a new site to use only fifty percent of the required minimal lateral footage for a system and then discharge into a holding tank. Additionally, the Council was concerned that a leaking lagoon was considered improper but a seepage pit was considered proper. Lastly, the Council questioned why the administrative regulation failed to address monitoring standards for the Department’s permit agents and mandatory maintenance and operation requirements.
Dr. Leach stated that the Department generally made those decisions to provide some flexibility in the administrative regulation’s application. However, given the questions and concerns regarding the amendments to this administrative regulation, the Department requested that the Subcommittee defer its consideration of this administrative regulation so the Department could reassess the appropriateness of some of the amendments. Without objection, this administrative regulation was deferred.
State Health Plan
902 KAR 17:041E. State Health Plan for facilities and services.
Health Services and Facilities
902 KAR 20:016E. Hospitals; operations and services.
Department for Medicaid Services: Services
907 KAR 1:013E. Payments for hospital inpatient services.
907 KAR 1:018E. Reimbursement for drugs.
907 KAR 1:030E. Home health agency services.
907 KAR 1:031E. Payments for home health services.
907 KAR 1:081E. Repeal of 907 KAR 1:080.
907 KAR 1:170E. Payments for home and community based waiver services.
907 KAR 1:320E. Kentucky Patient Access and Care System (KenPAC).
907 KAR 1:720E. Coverage and payments for the Kentucky Early Intervention Program services provided through an agreement with the state Title V agency.
Cabinet For Families And Children: Department of Community Based Services: Protection and Permanency: Child Welfare
922 KAR 1:460. Standards for youth wilderness camps.
Other Business:
Cabinet For Health Services: Department for Public Health: Local Health Departments
902 KAR 8:170. Local health department financial management requirements. Dr. Rice Leach, Public Health Commissioner, represented the Department. Kathy Mefford, Director, Three Rivers District Health Department, and prior Chairperson, Kentucky Health Department Association Regulations Committee, and James Ratliff, President, Kentucky Health Department Association, appeared in response to this administrative regulation.
Subcommittee staff stated that this administrative regulation established minimum fiscal and financial management requirements for Kentucky’s county and district public health departments and for all other classes of local health departments. The Subcommittee had reviewed this administrative regulation in November, 2001 and had questioned how it impacted the use of sliding scales for fees by local health departments. During that review, the Department had informed the Subcommittee that the use of sliding fee scales were optional. However, recently the Department had issued a memorandum to local health departments indicating that this administrative regulation required the use of sliding fee scales. The Subcommittee had requested that the Department attend the current Subcommittee meeting to address this apparent conflict and possible remedies.
Dr. Leach stated that he had represented the Department and this administrative regulation at the November, 2001 Subcommittee meeting. At that time, he had unintentionally misinformed the Subcommittee about the sliding fee scale issue. He had intended that the use of sliding fee scales would be optional for local health departments, and had believed that the administrative regulation had implemented that intent. He had remained under that misunderstanding when he had issued the memorandum indicating that the administrative regulation would be enforced as promulgated. However, he subsequently had ascertained that the administrative regulation instead mandated the use of sliding fee scales. To rectify this conflict, he suggested that the Department issue an emergency regulation addressing this issue. The Department expected to initiate that process after they had consulted with the Inspector General’s Office regarding Medicaid compliance. While the Department wanted to provide local health departments flexibility in establishing their fee structures, they wanted to ensure that doing so would not run afoul of Medicaid billing regulations.
Ms. Mefford stated that the Kentucky Health Department Association Regulations Committee was willing to work with Dr. Leach and the Department to resolve this issue. They had agreed to the administrative regulation in the fall because they understood it allowed each heath department to decide locally whether their needs were best served by retaining a nominal fee structure or by instituting a sliding fee scale. Any emergency regulation addressing this issue should continue to authorize the use of nominal fees and should be in compliance with Medicaid billing requirements. The emergency regulation also should be issued before July 15, 2002 because the fee structure conflict needed to be resolved before 922 KAR 8:170 became effective.
James Ratliff stated that he requested the Department to issue an immediate emergency regulation authorizing local health departments to continue their current billing structures while the Department waited for the Inspector General’s opinion on Medicaid compliance.
The Subcommittee adjourned at 11:50 a.m. until July 9, 2002, at 10 a.m. in Room 149 of the Capitol Annex.