The 1st meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, August 13, 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: Diana Barber, Michael Morgan, Kentucky Higher Education Assistance Authority; Jack Damron, Department of Corrections; Elizabeth D. Baker, Lt. Joe England, Transportation Cabinet; Frank X. Delzer, Tony Oppegard, Tim Miller, Coleman England, Eugene D. Attkisson, Department of Mines and Minerals; Angela Curry, Deborah T. Eversole, Public Service Commission; Alex Reese, Cabinet for Health Services; Elizabeth Caywood, Cheryl Bentley, Virginia Carrington, Stephanie Brammer-Barnes, Shirley Eldridge, Karen Doyle, Kathy Adams, Cabinet for Families and Children; Kim Nelson, Kentucky Coal Association and West Kentucky Coal Association; Edwin Wyatt, Tony O'Neal, Steve Ehrle, Butch Oldham, Roger Mack Burton, United Mine Workers; Chris Sanders, Kentucky AFL-CIO; Stephen A. Sanders; Duane Childers; Ronny Pryor; Byron F. Schroedel, Melissa Byrd, Samuel Byrd, Trent M. Travis, Paramedics; Charles M. O'Neal, Patricia Bausch, Brian Bishop, Anthony D. Stratton, Kentucky Board of Emergency Medical Services; Tom Neal, Pat Burge, Jewish Hospital; Cinda Fluke, Sue McGowan, Janet MacPhee, University of Louisville Hospital; John Hultgren, STATCARE; Sarah S. Nicholson, Nancy Galvagni, Joy M. Knight, Kentucky Hospital Association; Sharon D. Perkins, Mike Swift, KAPA; Lee Brown, Kentucky EMS Academy; David L. Gray, Hardin Memorial Hospital; Bob L. Price, Rudy Garrett, Somerset Fire/EMS; Duane Lee, Georgetown/Scott County EMS; Bart Baldwin, Children's Alliance; Terry B. Fraley, Netcare Ambulance Service; Patricia K. Howard, Gayla Edlin, Kentucky Emergency Nurses' Association; Bernadette M. Sutherland, Sue Derouen, Kentucky Board of Nursing; Leila Faucette, Kentucky Coalition of Nurse Practitioners and Nurse Midwives; Sharon Eli Mercer, Barbara Hawkins, Kentucky Nurses' Association; Peter Ayers.
LRC Staff: Dave Nicholas, Donna Little, Edna Lowery, 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:
Kentucky Higher Education Assistance Authority: Commonwealth Merit Scholarship Program
11 KAR 15:080. High school reporting. High school reporting. Diana Barber, Assistant General Counsel, and Michael Morgan, Student Branch Manager, represented the Authority.
In response to questions by Senator Roeding, Mr. Morgan stated that this administrative regulation established a deadline for schools to make changes to previously reported Kentucky Educational Excellence Scholarship Program (KEES) data. This administrative regulation was amended to permit the Authority to extend the deadline if the delayed reporting resulted from extenuating circumstances beyond a student’s control.
This administrative regulation was amended as following: Section 1 was amended to require corrections to the high school reports within three months after an eligible postsecondary student began enrollment at a participating institution for the first time after graduation from high school and to allow extensions for cause.
Justice Cabinet: Department of Corrections: Office of the Secretary
501 KAR 6:120. Blackburn Correctional Complex. Jack Damron, Counsel, represented the Department.
This administrative regulation was amended as follows: (1) Section 1 and various policies and procedures incorporated by reference were amended to comply with the drafting and format requirements of KRS Chapter 13A; (2) BCC 01-07-01 was amended to conform to the requirements of CPP 8.6 regarding extraordinary occurrence reports; and (3) BCC 01-13-01 was amended to conform to the requirements of CPP 1.2 regarding news releases and media interactions.
501 KAR 6:150. Eastern Kentucky Correctional Complex. This administrative regulation was amended as follows: (1) Section 1 and various policies and procedures incorporated by reference were amended to comply with the drafting and format requirements of KRS Chapter 13A; (2) EKCC 01-13-01 and 01-13-03 were amended to replace “operations manual” with “policies and procedures”; and (3) EKCC 18-13-04 was amended to conform to the requirements of CPP 13.2 regarding sick call fees.
501 KAR 6:999. Corrections secured policies and procedures. Pursuant to KRS 61.810(1)(i) and (k), KRS 61.815(2), and KRS 197.025(6), the Subcommittee went into closed session to review this administrative regulation.
Transportation Cabinet: Department of Vehicle Regulation: Division of Motor Carriers
601 KAR 1:005. Safety administrative regulation. Elizabeth Baker, Assistant General Counsel, and Lt. Joe England, Vehicle Enforcement Headquarters, represented the Department.
This administrative regulation was amended as follows: Sections 2, 6, and 10 to 12 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
601 KAR 1:025. Transporting hazardous materials by air or highway. In response to questions by Senator Roeding, Mr. England stated that the Department had not yet fully updated their administrative regulations in response to September 11, 2001. However, the Department had increased their safety inspections on hazardous material vehicles from three percent to fourteen percent.
In response to a question from Chairman Arnold, Mr. England stated that the Department was incorporated under the Homeland Security Act and that they interacted frequently with other involved agencies.
This administrative regulation was amended as follows: Section 1 was amended to comply with the drafting and format requirements of KRS Chapter 13A.
Public Protection And Regulation Cabinet: Department of Mines and Minerals: Division of Explosives and Blasting
805 KAR 4:010. Licensing and classification of blasters. Frank Delzer, Commissioner, Eugene Attkinsson, Counsel, and Coleman England, Assistant Director, represented the Division.
This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY paragraph was amended to include an authorizing statute; (2) the NECESSITY, FUNCTION, and CONFORMITY paragraph was amended to include authorizing language; (3) Section 1 was amended to specify the application forms required for a “Kentucky Blaster’s License” or a “Limited Kentucky Blaster’s License”; and (4) Section 1 was amended to comply with the drafting and format requirements of KRS Chapter 13A.
805 KAR 4:040. Instrumentation. This administrative regulation was amended as follows: (1) the RELATES TO paragraph was amended to delete citations; (2) the STATUTORY AUTHORITY paragraph was amended to include an authorizing statute; (3) the NECESSITY, FUNCTION, and CONFORMITY paragraph was amended to include authorizing language and to include a summary of the functions intended to be implemented, pursuant to KRS 13A.220(4)(f); and (4) Section 1 was amended to comply with the drafting and format requirements of KRS Chapter 13A.
805 KAR 4:100. Surface transportation of explosives. This administrative regulation was amended as follows: (1) the RELATES TO paragraph and Section 1 were amended to specify citations; (2) the NECESSITY, FUNCTION, and CONFORMITY paragraph was amended to include a summary of the functions intended to be implemented, pursuant to KRS 13A.220(4)(f); (3) Section 1(2) was amended to cite to a federal regulation which established physical fitness requirements for licensed drivers of vehicles carrying explosives; (4) Section 1(9) and (10) were amended to cite to federal regulations which described placards required by the U.S. Department of Transportation; (5) Section 1(11) was amended to change the number and type of fire extinguishers required for a vehicle transporting explosives; and (6) Section 1 was amended to comply with the drafting and format requirements of KRS Chapter 13A.
805 KAR 4:125. Firing the blast. This administrative regulation was amended as follows: (1) the NECESSITY, FUNCTION, and CONFORMITY paragraph was amended to include a summary of the functions intended to be implemented, pursuant to KRS 13A.220(4)(f); (2) Section 1(1) was amended to specify where danger signs were required to be located; and (3) Section 1 was amended to comply with the drafting and format requirements of KRS Chapter 13A.
Sanctions and Penalties
805 KAR 8:010. Definitions for 805 KAR Chapter 8. Frank Delzer, Commissioner, Tony Oppegard, General Counsel, and Tim Miller, Kentucky State Mining Board, represented the Department. Rep. Johnnie Turner appeared in favor of these administrative regulations. Kim Nelson, Kentucky Coal Association and West Kentucky Coal Association, and Bill Caylor, Chairman, Kentucky Coal Association, appeared in opposition to these administrative regulations.
In response to questions by Senator Roeding, Mr. Oppegard stated that when the Department charged a mine owner or miner with a safety violation, due process was guaranteed to the owner or miner by numerous provisions of the governing statutes and of these administrative regulations. First, all alleged violations were adjudicated by an independent review body, the Mine Safety Review Commission, rather than by the Department. Additionally, the owner or miner had the right to conduct discovery, the right to counsel, the right to cross-examine witnesses, the right to submit a final argument to the Commission, the right to a written decision from the Commission, and the right to appeal that decision in Kentucky’s judicial system.
In response to questions by Senator Pendleton, Mr. Delzer stated that these administrative regulations applied to violations rather than citations. They only applied if there was a willful intent to place a miner in imminent danger of serious injury or death.
In response to questions by Senator Pendleton, Mr. Oppegard stated that these administrative regulations embodied due process and had since their initial drafting. Due process was satisfied because the Department provided notice of an alleged violation by certified mail, and because the alleged violator, whether miner, foreman, or owner, had the right to counsel, the right to respond to the allegation, the right to a probable cause hearing, the right to discovery, and the right to a comprehensive trial by an independent review committee.
Mr. Nelson stated that the Kentucky Coal Association supported and practiced mine safety procedures. However, the Association opposed two components of these administrative regulations that did not involve miner safety: their imposition of successorship and their lack of due process. Successorship occurred when a mine was sold but prior safety violations attached to the mine and carried over to its new owner. Successorship could stifle the purchase of coal mines and reduce the viability of coal mining in Kentucky. Additionally, because there were not existing hearing procedures for a mine owner to challenge citations, there might not be hearing procedures for a miner to dispute alleged safety violations either. If the Department refused to submit a violation to the Mine Safety Review Commission, there would not be a hearing or appeals process for a miner to dispute that violation.
In response to questions by Senator Roeding, Mr. Delzer stated that under existing administrative regulations, there was not a hearing process for a mine owner or miner to challenge alleged safety violations, but there would be under these administrative regulations. Furthermore, successorship may depreciate the market value of a mine but it would not prevent the mine from being sold, even if there were three existing safety violations attached to the mine.
In response to questions by Senator Pendleton, Mr. Oppegard stated that under these administrative regulations, successorship did not occur automatically when a mine was sold. It only applied if the Department filed a successorship charge and if, after a trial, the Mine Safety Review Commission determined that a mine merely changed its name to avoid assuming liability for safety violations. In making that determination, the Commission considered eleven factors, including if there were the same owners, workforce, and equipment.
Representative Johnnie Turner stated that he understood these administrative regulations provided due process to both miners and the industry.
This administrative regulation was amended as follows: (1) the NECESSITY, FUNCTION, and CONFORMITY paragraph was amended to specify statutory citations; (2) definitions in Section 1 were amended for specificity and to comply with KRS 13A.222(4)(d); and (3) the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Section 1 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
805 KAR 8:030. Criteria for the imposition and enforcement of sanctions against certified miners. This administrative regulation was amended as follows: (1) the RELATES TO paragraph was amended to specify citations; (2) the STATUTORY AUTHORITY paragraph was amended to include an additional authorizing statute; (3) the NECESSITY, FUNCTION, and CONFORMITY paragraph was amended to include authorizing language; (4) Section 1(2) was amended to state that the Mining Board may grant or deny an application for reinstatement, and to delete language concerning the imposition of conditions of reinstatement; and (5) Section 1 was amended to comply with the drafting and format requirements of KRS Chapter 13A.
805 KAR 8:040. Criteria for the imposition and enforcement of sanctions against owners and part-owners of licensed premises. This administrative regulation was amended as follows: (1) the RELATES TO paragraph was amended to specify citations; (2) the STATUTORY AUTHORITY paragraph was amended to include an additional authorizing statute; (3) the NECESSITY, FUNCTION, and CONFORMITY paragraph was amended to include authorizing language; (4) Section 1 was amended to delete language concerning the imposition of probationary periods and penalties by the Mining Board or the Department of Mines and Minerals for reinstatement purposes; (5) Section 1 was amended to specify that the burden of proof in administrative hearings was in accordance with KRS 13B.090(7); and (6) Section 1 was amended to comply with the drafting and format requirements of KRS Chapter 13A.
805 KAR 8:050. Criteria for the imposition and enforcement of sanctions against noncertified personnel. This administrative regulation was amended as follows: (1) the RELATES TO paragraph was amended to specify statutory citations; (2) the STATUTORY AUTHORITY paragraph was amended to include an additional authorizing statute; (3) the NECESSITY, FUNCTION, and CONFORMITY paragraph was amended to include authorizing language; (4) Section 1 was amended to delete language concerning the imposition of probationary periods and penalties by the Mining Board or the Department of Mines and Minerals for reinstatement purposes; (5) Section 1 was amended to specify that the burden of proof in administrative hearings was in accordance with KRS 13B.090(7); and (6) Section 1 was amended to comply with the drafting and format requirements of KRS Chapter 13A.
805 KAR 8:060. Criteria for the imposition and enforcement of sanctions against licensed premises. This administrative regulation was amended as follows: (1) the RELATES TO paragraph was amended to specify statutory citations; (2) the STATUTORY AUTHORITY paragraph was amended to include an additional authorizing statute; (3) the NECESSITY, FUNCTION, and CONFORMITY paragraph was amended to include authorizing language; (4) Section 1(7) was amended to state that penalties shall not be imposed until the Mine Safety Review Commission has held a due process hearing, pursuant to KRS 351.194, to determine the question of legal successorship.
Cabinet For Health Services: Department for Public Health: Health Services and Facilities
902 KAR 20:016 & E. Hospitals; operations and services. Alex Reese, Office of Inspector General, represented the Department. Nancy Galvagni, Kentucky Hospital Association, and Anthony Stratton, Kentucky Board of Emergency Medical Services, appeared in favor of this administrative regulation. Sharon Eli Mercer, Executive Director, Kentucky Nurses’ Association, and Patricia K. Howard, Kentucky Emergency Nurses’ Association, appeared in opposition to this administrative regulation.
Ms. Galvagni stated that the Kentucky Hospital Association supported the amendments to this administrative regulation regarding verbal orders because they increased patient safety. Additionally, the Association favored the amendments regarding paramedics performing triage in hospital emergency rooms for several reasons. The amendments conformed the administrative regulation to HB 469. The Kentucky Board of Emergency Medical Services considered performing hospital triage to be in the scope of practice for paramedics because they were trained in it under their national curriculum. Lastly, paramedics could only perform the triage if they had demonstrated competency in that skill and if the hospital’s policies and procedures authorized it.
Ms. Mercer stated that the Kentucky Nurses’ Association opposed the amendments to this administrative regulation that authorized paramedics to perform triage at hospitals because they failed to define the paramedics’ scope of practice.
Ms. Howard stated that she served as both an emergency nurse and a paramedic educator. Her experience convinced her that while paramedics were a good fit for hospital emergency departments in some contexts, performing triage was not an appropriate role for them. Paramedic triage training did not include the comprehensive systematic triage approach that was required in the hospital environment.
In response to questions from Representative Lee, Ms. Howard stated that nurses were not required to receive a specific number of hours of hospital triage training. Emergency room nurses were required to have some experience in the emergency department environment and some training on applicable federal regulations, but they were not required to participate in a formal emergency nursing training course. Additionally, paramedics performing triage in hospitals would contribute to the growing shortage of pre-hospital paramedic care in Kentucky.
Mr. Stratton stated that to his knowledge as a member of the Kentucky Board of Emergency Medical Services, Kentucky did not have a shortage of pre-hospital paramedic care. Moreover, in counties without hospitals, the paramedic or other first responder was automatically performing triage anyway.
This administrative regulation was amended as follows: (1) the NECESSITY, FUNCTION, AND CONFORMITY and Sections 3 and 4 were amended for clarity and to comply with the formatting requirements of KRS Chapter 13A; and (2) Section 4(2)(c) 4.g. and 4(8)(b) were amended to emphasize that triage and medication activities of a paramedic were only those within his statutory scope of practice, and authorized by the hospital's operating policies and procedures.
Cabinet For Families And Children: Department of Community Based Services: Protection and Permanency: Child Welfare
922 KAR 1:360. Private child care placement, levels of care, and payment. Karen Doyle, Acting Director, Kathy Adams, Assistant Director, and Elizabeth Caywood represented the Department. Bart Baldwin, Children’s Alliance, appeared in favor of this administrative regulation.
In response to a question by Senator Roeding, Ms. Adams stated that this administrative regulation’s referral process applied to children being placed in a residential placement or a private foster home. The process required the child’s case worker to complete an informational packet on the child and to submit it to a gatekeeper. The gatekeeper assessed the child’s needs and assigned the child a level of required care. The gatekeeper matched that level of care with a data base of available resources. The gatekeeper provided the case worker with the available appropriate placements so the case worker could make a final determination on the child’s best placement.
In response to a question by Senator Roeding, Mr. Baldwin stated that this administrative regulation had sped up the referral process. It was important not to rush that process to insure that the child received the best possible placement for the child’s needs.
In response to a question by Senator Roeding, Ms. Doyle stated that by statute, the Department was required to exclude for-profit placement entities and child-placing agencies from the Model Program Cost Analysis computation.
This administrative regulation was amended as follows: (1) the RELATES TO, STATUTORY AUTHORITY, and NECESSITY, FUNCTION, AND CONFORMITY paragraphs were amended to add statutory citations and to clearly state the purpose of and authority for the administrative regulation; (2) Section 1 was amended to delete redundant definitions and clarify others; (2) Section 5 was amended to remove for-profit entities and child-placing agencies from the Model Program Cost Analysis computation, in compliance with KRS 199.641; (3) Sections 1, 10, and 15 were amended to refer to changing forms incorporated by reference; (4) Section 10 was amended to specify the approved type of accreditation organization; (5) Section 14 was amended to add procedures for informal dispute resolution; and (6) Sections 1 to 8, 10, 11, 12, 14, and 15 were amended to comply with the drafting requirements of KRS Chapter 13A.
Day Care
922 KAR 2:170. Stars for KIDS NOW Program for type I licensed child care centers. Karen Doyle, Acting Director, and Stephanie Brammer-Barnes represented the Department.
This administrative regulation was amended as follows: (1) Section 1 was amended to define "Level One Center," and "Provisional quality rating certificate"; (2) Sections 4 and 6 were amended to allow an equivalent credential to stand for a director's credential; and (3) Sections 1 to 7 and 13 were amended to comply with the drafting requirements of KRS Chapter 13A.
The Subcommittee determined that the following administrative regulations complied with statutory authority:
Kentucky Higher Education Assistance Authority: Grant Programs
11 KAR 5:130. Student application. Diana Barber, Assistant General Counsel, and Michael Morgan, Student Branch Manager, represented the Authority.
In response to a question by Senator Roeding, Mr. Morgan stated that in 2001, 38,900 students received approximately $87,000,000 of KHEAA grants and scholarships.
In response to a question by Senator Roeding, Ms. Barber stated that this administrative regulation did not increase the amount of funding required for the KHEAA grants and scholarships.
11 KAR 5:145. CAP grant award determination procedure. In response to questions by Senator Roeding, Ms. Barber stated that this administrative regulation was amended to reduce the CAP grant award amount to the lesser of Kentucky Community and Technical College System (KCTCS) tuition or $630. Due to rising KCTCS tuition costs, the reduction was required for the Authority to continue to fund grants for the same amount of recipients.
11 KAR 5:150. Notification of award. In response to questions by Senator Roeding, Mr. Morgan stated that the Authority used college summary files to notify institutions participating in the CAP grant program of eligible students. The eligibility reports were password protected and only available to state grant administrators.
Commonwealth Merit Scholarship Program
11 KAR 15:010. Definitions for 11 KAR Chapter 15. Diana Barber, Assistant General Counsel, and Michael Morgan, Student Branch Manager, represented the Authority.
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.
Tourism Development Cabinet: Department of Fish and Wildlife Resources: Game
301 KAR 2:041E. Shooting preserves and foxhound training enclosures.
301 KAR 2:081E. Pet and propagation permits.
301 KAR 2:082E. Importing and holding exotic wildlife.
301 KAR 2:083E. Transportation and holding of captive cervids.
301 KAR 2:084E. Importation of game birds.
Department Of Agriculture: Livestock Sanitation
302 KAR 20:010. Definitions.
302 KAR 20:040E. Entry into Kentucky.
302 KAR 20:065E. Sale and exhibition of Kentucky origin livestock in Kentucky.
302 KAR 20:066E. Chronic wasting disease surveillance in captive cervids.
302 KAR 20:100. Garbage.
302 KAR 20:250E. Avian influenza.
Justice Cabinet: Department of State Police: Personnel; General
502 KAR 5:020. Code of ethics.
Department of Criminal Justice Training: Kentucky Law Enforcement Council
503 KAR 1:160E. Department of Criminal Justice Training - Kentucky Police Corps basic training: graduation requirements; records.
General Training Provisions
503 KAR 3:090E. Department of Criminal Justice Training - Kentucky Police Corps Program.
503 KAR 3:100E. Department of Criminal Justice Training - Kentucky Police corps basic training course cadet conduct requirements; procedures and penalties.
Education, Arts, And Humanities Cabinet: Kentucky Board of Education: Department of Education: Bureau of Learning Results Services: Assessment and Accountability
703 KAR 5:070E. Procedures for the inclusion of special populations in the state-required assessment and accountability programs.
Labor Cabinet: Department of Workers' Claims
803 KAR 25:010E. Procedure for adjustments of claims.
Public Protection And Regulation Cabinet: Public Service Commission: Utilities
807 KAR 5:100E. Board application fees.
807 KAR 5:110E. Board proceedings.
Kentucky Mine Safety Review Commission: Mine Safety Review
825 KAR 1:030. Penalties for subsequent violations; criteria for modification of civil penalties and fines.
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 20:380E. Operations and services; residential hospice facilities.
Department for Medicaid Services: Services
907 KAR 1:019E. Outpatient Pharmacy Program.
907 KAR 1:055E. Payments for primary care center, federally-qualified health center, and rural health clinic services.
907 KAR 1:145E. Supports for community living services for an individual with mental retardation or a developmental disability.
Payment and Services
907 KAR 3:030E. Coverage and payments for IMPACT Plus services.
Commission for Children with Special Health Care Needs: Kentucky Early Intervention System
911 KAR 2:120E. Kentucky Early Intervention Program evaluation and eligibility.
911 KAR 2:200E. Coverage and payment for Kentucky Early Intervention Program services.
Cabinet For Families And Children: Department of Community Based Services: Protection and Permanency: Child Welfare
922 KAR 1:460. Standards for youth wilderness camps.
The Subcommittee adjourned at 11:35 a.m. until September 10, 2002, at 10 a.m. in Room 149 of the Capitol Annex.