The July meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, July 9, 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: Robert Barnes, Kentucky Teachers' Retirement System; Eddie Mattingly, Revenue Cabinet; Mitchell Mattingly, Board of Claims; Dr. Lisa Sanford Howard, Connie Calvert, Board of Optometric Examiners; Lee Harris, Real Estate Commission; Tom Bennett, Jon Gassett, Scott Porter, Ellen Benzing; Department of Fish and Wildlife Resources; Rusty Ford, Department of Agriculture; Jack Damron, Brenda Priestly; Department of Corrections; Vicky Horn, Robin Coombs, Department of Insurance; Bernard J. Hettel, March A. Guilfoil, Rena Elswick, Kentucky Racing Commission; James D. Carreer, Jennifer M. Bryson, Diane Bellafronto, Trish Howard, Eric Friedlander, Cabinet for Health Services; Karen Doyle, Mary Howard, Stephanie Brammer-Barnes, Shirley Eldridge; Cabinet for Families and Children; Carlyn A. Meyer, Water Quality Association; Steve Emery, City of Pewee Valley, Kentucky; Bart Baldwin, Children's Alliance.
LRC Staff: Dave Nicholas, Donna Little, Karen Smith, Sarah Amburgey, 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:
Revenue Cabinet: General Administration
103 KAR 1:050. Forms manual. Eddie Mattingly, Division of Tax Policy, and Debra Eucker, Counsel, represented the Cabinet.
In response to questions by Senator Roeding, Mr. Mattingly stated that this administrative regulation incorporated by reference nearly 500 tax forms. Because Kentucky had over fifty (50) taxes, the large number of forms was necessary. The amendments to this administrative regulation made routine updates to 157 of the tax forms.
In response to questions by Representative Bruce, Mr. Mattingly stated that the application form for a tax refund for used cars purchased out of state was easy to access and utilize. The lack of car tax refund applicants resulted from the Cabinet’s difficulty in identifying potential refund recipients.
In response to a question by Senator Roeding, Ms. Eucker stated that potential refund recipients could access information on the car tax refund and its application form at www.cartaxrefund.com.
This administrative regulation was amended as follows: (1) Revenue Form 62A030, “Request for Reproduction of PVA Public Records”, and Revenue Form 62F015, “PVA Open Records Commercial Fee Guidelines” were included; and (2) Sections 1 to 19 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Board Of Claims: Practice and Procedure
108 KAR 1:010. Board operation and claim procedure. Mitchell Mattingly, Counsel, represented the Board.
In response to questions by Senator Roeding, Mr. Mattingly stated that the Board was established to enable victims of the Commonwealth’s negligence to file claims seeking compensation for their damages. This administrative regulation established the procedures used by the parties and the hearing officers in adjudicating those claims.
This administrative regulation was amended as follows: (1) the RELATES TO paragraph was amended to correct a statutory citation; and (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 to 5 were amended to: (a) comply with the drafting and format requirements of KRS Chapter 13A; (b) delete provisions that repeated statutory language in KRS Chapter 44; and (c) clarify requirements.
Board of Optometric Examiners
201 KAR 5:030. Annual courses of study required. Dr. Lisa Sanford Howard, President, represented the Board.
In response to questions by Representative Lee, Dr. Howard stated that the Board required all optometrists, regardless of their years of practice, to obtain continuing education.
In response to questions by Representative Allen, Dr. Howard stated that optometrists could obtain their fifteen (15) hours of required continuing education each year through university courses or through programs provided by approved optometric associations.
This administrative regulation was amended as follows: Sections 1, 2, 4, and 5 were amended to comply with the drafting requirements of KRS Chapter 13A.
Tourism Cabinet: Department of Fish and Wildlife Resources: Fish
301 KAR 1:201. Fishing limits. Tom Bennett, Commissioner, and Dr. Jon Gassett, Director, represented the Department.
In response to questions by Chairman Arnold, Mr. Bennett stated that this administrative regulation established fishing limits which applied to several lakes and several species, including trout and largemouth bass.
In response to a question by Senator Roeding, Mr. Bennett stated that the amendments to this administrative regulation refined the fishing limits to protect the weaker year classes of fish.
In response to questions by Representative Allen, Mr. Bennett stated that both a fishing license and a trout permit were required to fish for trout. If a trout was caught without a permit, a fine would not be assessed if the trout was immediately released.
In response to a question by Senator Roeding, Mr. Bennett stated that an over sixty-five (65) fishing license automatically included a trout permit.
This administrative regulation was amended as follows: (1) Section 4 was amended to insert possession limits and size limits; and (2) Section 5 was amended to comply with the drafting and format requirements of KRS Chapter 13A.
Game
301 KAR 2:075. Wildlife rehabilitation permits. This administrative regulation was amended as follows: Section 2 was amended to set a limit of 180 days for the time that a cervid (deer or elk) may be held in a rehabilitation facility without a captive cervid permit.
Hunting and Fishing
301 KAR 3:022. License, tax and permit fees. In response to questions by Chairman Arnold, Mr. Bennett stated that there were no wild pheasants in Kentucky. The Department purchased pheasants for organized quota hunts and recouped their costs by establishing a pheasant hunt permit fee of twenty-five (25) dollars in this administrative regulation.
In response to questions by Representative Lee, Mr. Bennett stated that the Department had reduced the application fee for pheasant quota hunts to three (3) dollars and increased the hunting permit fee to twenty-five (25) dollars to ensure that those chosen to participate in the hunts bore the hunt costs, rather than the unsuccessful applicants.
In response to a question by Senator Roeding, Mr. Bennett stated that the wildlife rehabilitator permit fee of twenty-five (25) dollars reimbursed the Department for inspecting an applicant’s rehabilitation facility.
This administrative regulation was amended as follows: Section 6 was amended to provide that a captive cervid permit: (1) shall be valid for a period of one year; (2) shall be renewable; and (3) shall have a $100 initial fee and a $100 renewal fee which were the same as the Commercial wildlife pet and propagation permit fees.
Department Of Agriculture: Livestock Sanitation
302 KAR 20:120. Treatment of imported stallions. Rusty Ford represented the Department.
This administrative regulation was amended as follows: the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Sections 1 to 3 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 6:170. Green River Correctional Complex. Jack Damron, Counsel, represented the Department.
This administrative regulation was amended as follows: (1) Section 1 was amended to change amendment dates for certain policies and procedures; (2) GRCC 03-01-01 was amended to permit an employee to call as soon as possible, instead of one hour in advance of the employee’s shift, in the case of an emergency; (3) GRCC 03-09-01 was amended to correct an Internet web address; and (4) various policies were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Department of Insurance: Rates and Rating Organizations
806 KAR 13:150. Property and casualty rate and rule filing. Vicky Horn, Legal Department, and Robin Coombs, Assistant Director, represented the Department.
In response to a question by Senator Roeding, Ms. Horn stated that the amendments to this administrative regulation decreased costs by permitting insurers to file the Shopper’s Guide Rate Comparison forms online.
In response to questions by Chairman Arnold, Ms. Horn stated that the Department published the Shopper’s Guide online and distributed free paper copies of it at the Department’s office and at the Kentucky State Fair.
In response to questions by Representative Bruce, Ms. Coomes stated that insurance rates probably would increase this year but first would have to be justified and approved.
In response to questions by Chairman Arnold, Ms. Coomes stated that the Department considered an insurer’s claim history and claim ratio before approving a rate increase.
This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY paragraph was amended to delete citations; (2) the NECESSITY, FUNCTION, and CONFORMITY paragraph was amended to cite to the Kentucky Insurance Code; and (3) Sections 7 to 11 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Kentucky Racing Commission: Harness Racing
811 KAR 1:105. Review and appeal. Bernard J. Hettel, Executive Director, Marc A. Guilfoil, and Rena Elswick represented the Commission.
In response to questions by Senator Roeding, Subcommittee staff stated that as amended, this administrative regulation discouraged the filing of frivolous appeals by requiring a licensee to serve the suspension during a Kentucky race meet. This deterrent was preferred rather than raising the filing fee for an appeal because it avoided due process problems.
This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY 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) Sections 3 to 6 and 10 were amended to comply with the drafting and format requirements of KRS Chapter 13A; (4) Section 8 was amended to remove the fee charged for filing an appeal and to establish a new system for the serving of a suspension to eliminate the ability of the licensee to avoid serving a suspension during a racing meet; and (5) Section 10 was added to incorporate by reference the required application.
Cabinet For Health Services: Department for Public Health: Sanitation
902 KAR 10:085. Kentucky on-site sewage disposal systems. Ken Spach, Engineer, James D. Carreer, Legislative Liaison, and Sam Burnette, Division Director, represented the Department. Steve Emery, Counsel for City of Pewee Valley, and Carlyn Meyer, Water Quality Association, appeared in opposition to this administrative regulation.
In response to questions by Senator Roeding, Mr. Spach stated that this administrative regulation applied to new sewage disposal systems and did not affect existing functioning systems. The Department planned to notify affected homeowners through local health departments.
In response to questions by Senator Pendleton, Mr. Spach stated that a holding tank trapped sewage rather than dispersing it into the soil. Holding tanks could be problematic due to the costs of their required inspections and pumping. This administrative regulation permitted the use of holding tanks for limited amounts of sewage.
Mr. Emery stated that the City of Pewee Valley objected to Section 11(9) of this administrative regulation which identified as a prohibited practice the discharge of water softener brine into onsite waste water disposal systems. That provision affected every household in Pewee Valley because they all used individual onsite waste water disposal systems, commonly referred to as septic tanks. The city had found no reasonable basis for that prohibition because water softener brine, unlike other high sodium water, actually improved soil permeability and additionally benefited a septic tanks system’s operation by stimulating biological action. The city requested that Section 11(9) be deleted from this administrative regulation.
Ms. Meyer stated that the Water Quality Association also objected to the prohibition of water softener brine discharge in Section 11(9) of this administrative regulation. The Association had found no scientific data supporting that prohibition. The Association also requested the deletion of Section 11(9) from this administrative regulation.
In response to questions by Representative Lee, Mr. Spach stated that Section 11(9) of this administrative regulation did not prohibit the use of water softeners. It only prohibited the discharge of water softener brine. There were other acceptable and fairly inexpensive methods to separate out the brine. The Department established the prohibition on advice from its technical advisory committee because of the problems association with the discharge, including its erosion of metal septic tanks and the high cost of replacing those tanks if they failed.
In response to questions by Representative Allen, Mr. Spach stated that the Department established the discharge prohibition to prevent the salty brine from diminishing clay soil permeability and clogging up septic systems.
In response to questions by Representative Lee, Mr. Emery stated that the brine discharge prohibition also applied to any modifications of existing septic tanks. If a homeowner failed to comply with the prohibition, the owner’s permit could be revoked. Additionally, the Department had significantly underestimated the cost of alternative separation methods for the brine.
Mr. Carreer stated that due to the voiced concerns regarding the water softener brine discharge prohibition, the Department requested that this administrative regulation be amended to delete Section 11(9) in its entirety. Without objection, Section 11(9) was deleted. As amended, this administrative regulation was approved unanimously.
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 1 was amended to add and clarify technical and scientific definitions; (3) the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 to 13 were amended to comply with the drafting and format requirements of KRS Chapter 13A; (4) Section 7 was amended to specify that straw may be used as fill material in the trench; and (5) Section 11(9) was deleted.
Department for Medicaid Services: Services
907 KAR 1:320 & E. Kentucky Patient Access and Care System (KenPAC). Diane Bellafronto, Branch Manager, and Trish Howard, Commission for Children with Special Health Care Needs, represented the Department.
In response to questions from Representative Lee, Ms. Bellafronto stated that this administrative regulation established a case management fee of four (4) dollars per member per month. It also provided funding to reimburse gatekeeper providers on a sliding scale based upon performance and quality criteria.
In response to questions from Senator Roeding, Ms. Bellafronto stated that this administrative regulation excluded physician assistants from serving as primary care providers because by statute, they served under the supervision of medical doctors. However, they could serve as practitioners within rural health centers and primary care centers. Additionally, this administrative regulation regulated utilization management of primary care physicians. Other administrative regulations and programs of the Department addressed over-utilization of services by recipients, such as their program integrity system, care coordination program, and administrative surface organization contract. If recipient over-utilization measures needed to be strengthened, it would be more appropriate to amend those programs and administrative regulations.
In response to questions by Senator Roeding, Ms. Howard stated that the Department’s lock-in program, established by 907 KAR 1:677, governed over-utilization of services by recipients. The program had been ongoing for several years.
This administrative regulation, as amended, was approved on a roll call vote, with Senator Pendleton, Representative Lee, Representative Bruce, and Chairman Arnold voting in support of this administrative regulation, and with Senator Roeding voting in opposition to this administrative regulation.
This administrative regulation was amended as follows: (1) the RELATES TO paragraph was amended to correct statutory citations; and (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 to 7 and 9 to 14 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
907 KAR 1:720 & E. Coverage and payments for the Kentucky Early Intervention Program services provided through an agreement with the state Title V agency. Jennifer Bryson and Eric Friedlander, Executive Director, represented the Department.
In response to a question by Senator Roeding, Ms. Bryson stated that this administrative regulation exempted teachers for the deaf and hard of hearing because they were considered an educational service and were covered under the Department of Education.
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) Section 4(2) was amended to correct a typographical error.
Commission for Children with Special Health Care Needs: Children with Special Health Care Needs Services
911 KAR 1:080. SSI Children's Support Services (SSI/CSS) Program. Trish Howard and Eric Friedlander, Executive Director, represented the Commission.
This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to correct statutory citations; and (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 3, 4, 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: Protection and Permanency: Day Care
922 KAR 2:210. Stars for KIDS NOW Program for family child care providers. Stephanie Brammer-Barnes and Michael Cheek represented the Department.
In response to questions by Senator Roeding, Ms. Brammer-Barnes stated that this was a new administrative regulation which governed family child care providers who participated in the Stars Program. The Department estimated that it would cost $351,000 to implement.
In response to questions by Senator Roeding, Mr. Cheek stated that this administrative regulation was funded through the tobacco settlement and authorized by the 2000 General Assembly.
This administrative regulation was amended as follows: (1) the RELATES TO paragraph was amended to correct statutory citations; and (2) Sections 1 to 8, 10, 12, and 13 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:
Kentucky Teachers' Retirement System: General Rules
102 KAR 1:260. Summary plan description. Robert Barnes, General Counsel, represented the System.
102 KAR 1:270. Statement of member account.
Real Estate Commission
201 KAR 11:420. Standards for Internet advertising. Lee Harris, General Counsel, and Norman Brown, Executive Director, represented the Commission.
Tourism Cabinet: Department of Fish and Wildlife Resources: Game
301 KAR 2:111. Deer and turkey hunting on federal areas. Tom Bennett, Commissioner, and Dr. Jon Gassett, Director, represented the Department.
301 KAR 2:178. Deer hunting on wildlife management areas. In response to a question by Chairman Arnold, Mr. Bennett stated that this administrative regulation was amended to create primitive weapons hunting areas.
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. James D. Carreer, Legislative Liaison, 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: Consumer Protection
40 KAR 2:001E. Definitions for 40 KAR Chapter 2.
40 KAR 2:075E. Commonwealth of Kentucky No Telephone Solicitation Calls List.
40 KAR 2:076E. Procedures and notification of violations of KRS 367.46955 and 367.170 relative to telephone solicitations.
Racial Profiling
40 KAR 7:010. Procedures for reporting allegations of racial profiling.
Department Of Agriculture: Livestock Sanitation
302 KAR 20:010. Definitions.
302 KAR 20:100. Garbage.
302 KAR 20:250E. Avian influenza.
Justice Cabinet: Department of Corrections: Office of the Secretary
501 KAR 6:999. Corrections secured policies and procedures.
Department of State Police: Personnel; General
502 KAR 5:020. Code of ethics.
Labor Cabinet: Department of Workers' Claims
803 KAR 25:010E. Procedure for adjustments of claims.
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.
Public Service Commission: Utilities
807 KAR 5:100E. Board application fees.
807 KAR 5:110E. Board proceedings.
Cabinet For Health Services: Department for Public Health: 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.
902 KAR 20:380E. Operations and services; residential hospice facilities.
Department for Medicaid Services: Services
907 KAR 1:018E. Reimbursement for drugs.
907 KAR 1:019E. Outpatient Pharmacy Program.
907 KAR 1:145E. Supports for community living services for an individual with mental retardation or a developmental disability.
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. Subcommittee staff stated that the Subcommittee had discussed at its previous meeting whether this administrative regulation required the use of sliding fee scales by local health departments. Subsequently, the Department had filed an emergency regulation which resolved the fee issue. The emergency regulation permitted local health departments to use either a sliding fee scale or a nominal fee basis. Sliding fee scales were no longer mandatory.
The Subcommittee adjourned at 12:10 p.m. until August 13, 2002, at 10 a.m. in Room 149 of the Capitol Annex.