The September meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, September 10, 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 Morgan, Diana Barber, KHEAA; Dennis Taulbee, Jan Applegate, Council on Postsecondary Education; Karen D. Mayes, Lynn K. Fieldhouse, Department of Treasury; Richard Ornstein, Barbara Buechler, Department of Local Government; Emma Lou Hartlage, Board of Embalmers and Funeral Directors; Nathan Goldman, Board of Nursing; Dr. Robert Illback, Board of Psychology; Nancy Black, Division of Occupations and Professions; Laurie Farlow, Laura Strickland, Board of Occupational Therapy; James Grawe, Attorney General's Office; Thomas Floro, Board of Respiratory Care; Benjy Kinman, Tom Bennett, Ellen Benzing, Jon Gassett, Scott Porter, Department of Fish and Wildlife Resources; C. Hope Crain, John Cotton, Lanny Arnold, Randy Wise, Ann Stewart, Mark Farrow, Department of Agriculture; Allen Luttrell, Jim Villines, Department of Surface Mining; James Brannen, Office of Petroleum Storage Tank Environmental Assurance Fund; Carla H. Montgomery, Department of Workers' Claims; Glenn Jennings, Elizabeth A. Johnson, Department of Insurance; Deborah T. Eversole, Angela Curry, Public Service Commission; Frank L. Dempsey, Department of Housing, Buildings and Construction; K. Troy Koch, Ellen Hesen, Kerry L. Conlee, Joyce Robl, Sandy Fawbush, James D. Career, Dr. Louis Moore, Cabinet for Health Services; Rosanne Barkley, Sharon Chisley, Karen Doyle, Charlene Manuel, Shirley Eldridge, Cabinet for Families and Children; Ronny Pryor; Russ Sanders, NFPA.
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: Grant Programs
11 KAR 5:001. Definitions pertaining to 11 KAR Chapter 5. Diana Barber, Assistant General Counsel, and Michael Morgan, Student Aid Branch Manager, represented the Authority.
This administrative regulation was amended as follows: Section 1(11) was amended to comply with KRS 13A.222(4)(a).
11 KAR 5:034. CAP grant student eligibility. In response to questions by Senator Roeding, Mr. Morgan stated that a CAP award was a College Access Program grant worth $1,260. The Authority awarded those grants to the neediest students, as determined by federal grant eligibility calculations.
This administrative regulation was amended as follows: Section 1(10) was amended to comply with KRS 13A.222(4)(a).
11 KAR 5:160. Disbursement procedures. In response to questions by Senator Roeding, Mr. Morgan stated that this administrative regulation was amended to add flexibility so nontraditional students could receive the full amount of CAP grants.
This administrative regulation was amended as follows: Sections 2 and 4 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Council On Postsecondary Education: Public Educational Institutions
13 KAR 2:090. Kentucky Educational Excellence Scholarship (KEES) Program. Dennis Taulbee, General Counsel, and Jim Applegate, Vice President of Academic Affairs, represented the Council.
This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs and Sections 1, 2, and 3 were amended to correct statutory citations; (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220(3)(f); (3) Sections 1 and 3 to 11 were amended to comply with the drafting and format requirements of KRS Chapter 13A; (4) Section 5(4) was amended to establish requirements for the equivalent undergraduate programs, as required by KRS 164.7535 and 164.7881; (5) Section 8(3) was amended to clarify requirements for students at accredited out-of-state high schools or Department of Defense schools, or who earned a GED, to comply with KRS 164.7879(2)(c)1. and 2.; and (6) Section 11 was amended to incorporate by reference the Equivalent Undergraduate Programs List 402.
Department of Treasury: Commonwealth Postsecondary Education Prepaid Tuition Trust Fund
20 KAR 2:010. Definitions for 20 KAR Chapter 2. Karen Mayes, Assistant State Treasurer, and Lynn Fieldhouse, Counsel, represented the Fund.
In response to questions by Chairman Arnold, Ms. Mayes stated that the Prepaid Tuition Trust Fund program was very successful and had $19,000,000 and 4,300 accounts through June 30, 2002. The Fund’s Board of Directors had hired an investment manager to invest the contributed funds.
In response to a question by Senator Roeding, Ms. Mayes stated that the Fund’s Board of Directors was comprised of the State Treasurer, three (3) members appointed by the Governor, three (3) members appointed by the State Treasurer, the Secretary of the Finance and Administration Cabinet, the Secretary of the Revenue Cabinet, and the Chairperson of the Association of Independent Colleges and Universities.
This administrative regulation was amended as follows: Section 1 was amended to correct a statutory citation and comply with KRS 13A.222(4)(a).
20 KAR 2:040. Applying for a prepaid tuition contract. In response to a question by Senator Roeding, Ms. Mayes stated that this administrative regulation was amended to simplify the process of establishing eligibility for beneficiaries.
This administrative regulation was amended as follows: (1) the RELATES TO paragraph was amended to correct statutory citations; and (2) Sections 1, 2, and 3 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
20 KAR 2:050. Prepaid tuition contract prices, payments, and default. In response to questions by Senator Roeding, Ms. Mayes stated that this administrative regulation was amended to authorize the Fund’s Board of Directors to terminate prepaid tuition contracts if the contract payments were in default. Upon termination, the Board refunded a purchaser’s contributions, except for the termination fee as established by 20 KAR 2:100.
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 Section 3(3) were amended to comply with the drafting requirements of KRS Chapter 13A.
20 KAR 2:060. Amendment of a prepaid tuition contract. 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, as required by KRS 13A.220(3)(f); and (3) Sections 1, 2, and 3 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
20 KAR 2:080. Terminating a prepaid tuition contract. This administrative regulation was amended as follows: the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 1 were amended to: (1) comply with the drafting requirements of KRS Chapter 13A; and (2) delete provisions that repeated the governing statute, as prohibited by KRS 13A.120(2)(e).
20 KAR 2:090. Refunds and transfers. In response to questions by Senator Roeding, Ms. Mayes stated that a transfer occurred when a purchaser requested that funds from a prepaid tuition account be transferred to another qualified tuition program, such as the Kentucky Education Savings Plan Trust.
This administrative regulation was amended as follows: the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 and 2 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
20 KAR 2:100. Administrative fees. In response to questions by Senator Roeding, Ms. Mayes stated that this administrative regulation was amended to reduce the termination fee for prepaid tuition contracts from $150 to the lesser of $150 or fifty percent (50%) of the total tuition payments made.
This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to correct statutory citations; (2) Sections 1, 3, 4, and 9 were amended to comply with the drafting and format requirements of KRS Chapter 13A; and (3) Section 11 was amended to reinstate the ten cents per page copy fee, rather than the proposed $5 per page, which exceeded statutory authority.
Department For Local Government: Training Incentives
109 KAR 2:020. Training incentive. Richard Ornstein, Counsel, represented the Department. In response to questions by Chairman Arnold, Mr. Ornstein stated that a Life Safety Jail was defined by the Department of Corrections as a county jail without full service capabilities that could hold prisoners for forty-eight (48) hours.
This administrative regulation was amended as follows: (1) the RELATES TO paragraph was amended to add statutory citations; (2) Section 1 was amended to add a definition for "Life Safety Jail"; and (3) the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 2, 3, 4, 5, 7, and 8 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Board of Embalmers and Funeral Directors
201 KAR 15:050. Apprenticeship and supervision requirements. Jim Grawe, Assistant Attorney General, and Emma Lou Hartlage represented the Board.
This administrative regulation was amended as follows: (1) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to add authorizing language; (2) Section 1 was amended to create a definition section to define “Direct Supervision,” “Supervisor,” and “Supervisor’s Designee”; (3) Section 2 was amended to specify that the Supervisor was responsible for the quality of any delegated supervision; (4) Section 3 was amended to specify that only the supervisor or his approved designee may supervise the apprentice and to clarify that “supervision,” as defined by KRS 316.010(9), shall continue even when “direct supervision” ceases; and (5) the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Sections 1 to 6 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Board of Nursing
201 KAR 20:070. Licensure by examination. Nathan Goldman, General Counsel, represented the Board. This administrative regulation was amended as follows: (1) the RELATES TO paragraph was amended to add a statutory citation; (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to specify statutory citations; and (3) Sections 1 and 2 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
201 KAR 20:095. Inactive nurse licensure status. This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY paragraph was amended to cite to authorizing statutes; (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to add authorizing language; (3) Section 3 was amended to cite to an administrative regulation which established the requirements for Board approval of a refresher course; and (4) Sections 1 to 7 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
201 KAR 20:110. Licensure by endorsement. This administrative regulation was amended as follows: (1) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to add authorizing language; (2) Section 3 was amended to cite to an administrative regulation which established the requirements for Board approval of a refresher course; (3) Section 4 was amended to specify statutes which established penalties for practicing without a license; and (4) Sections 1 to 5 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
201 KAR 20:215. Continuing competency requirements. This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY paragraph was amended to delete non-authorizing citations; (2) Section 1 was amended to place definitions in alphabetical order, pursuant to KRS 13A.222(4)(e); (3) Section 5 was amended to cite to an administrative regulation which established requirements for a continuing education provider to receive approval from the Board; and (4) Sections 1, 2, 3, 5, 7, and 8 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
201 KAR 20:225. Reinstatement of license. In response to questions by Senator Roeding, Mr. Goldman stated that this administrative regulation established procedures for the reinstatement of licenses that had lapsed due to failure to renew and that had been revoked due to disciplinary action. The amendments to this administrative regulation affected the reinstatement procedures for lapsed licenses. Additionally, the refresher course required for reinstatement of a lapsed license was offered currently by five state universities and over the internet, but could be offered by hospitals or vocational schools if approved by the Board.
In response to questions by Chairman Arnold, Mr. Goldman stated that if a license was revoked due to disciplinary action, an applicant had to complete general continuing education and specialized therapy or education relating to the problematic behavior before the Board would consider reinstating the applicant’s license.
This administrative regulation was amended as follows: (1) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to add authorizing language and to correct a statutory citation; (2) Sections 1 and 2 were amended to specify the statute establishing requirements for license renewal and reinstatement, and to cite to an administrative regulation which established the requirements for Board approval of a refresher course; and (3) Sections 1 and 2 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Board of Occupational Therapy
201 KAR 28:170. Deep physical agent modalities. Nancy Black, Division of Occupations and Professions, Jim Grawe, Assistant Attorney General, and Laura Strickland represented the Board. In response to a question by Senator Roeding, Ms. Strickland stated that the twenty-five (25) dollar fee for certification in deep physical agent modalities was set by statute.
This administrative regulation was amended as follows: the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 to 4 were amended to comply with the drafting requirements of KRS Chapter 13A.
Tourism Development Cabinet: Department of Fish and Wildlife Resources: Fish
301 KAR 1:075. Gigging, grabbing or snagging, tickling and noodling. Tom Bennett, Commissioner, Jon Gassett, Director, Division of Wildlife, and Benjy Kinman, Director, Fishery Division, represented the Department.
In response to a question by Senator Roeding, Mr. Bennett stated that tickling and noodling was a fishing method in which the fisherman caught the fish with his hands.
This administrative regulation was amended as follows: Section 7 was amended to include the edition date of March 2002 for the material incorporated by reference and to comply with the drafting and format requirements of KRS Chapter 13A.
301 KAR 1:085. Mussel shell harvesting. In response to a question by Representative Bruce, Mr. Bennett stated that the amendments to this administrative regulation reduced the number of mussel licenses from 500 to 100 to respond to both the depressed market for fresh water mussel shells and to the user conflict between musselers and fishermen.
This administrative regulation was amended as follows: Sections 5 and 14 were amended to comply with the drafting and formatting requirements of KRS Chapter 13A.
301 KAR 1:130. Live bait for personal use. This administrative regulation was amended as follows: (1) Section 1 was amended to comply with the drafting requirements of KRS Chapter 13A; and (2) Section 4 was amended to include the edition date of March 2002 for the material incorporated by reference.
Hunting and Fishing
301 KAR 3:015. Shooting ranges on wildlife management areas. This administrative regulation was amended as follows: (1) Section 3 was amended to (a) remove the allowance for the use of multiple projectile ammunition on a shotgun patterning range; (b) require a person to sit facing forward and shoot the firearm through the tube; (c) comply with the formatting requirements of KRS Chapter 13A; and (d) require the shooter and any person handling the shotgun to wear protective eye and ear protection devices; and (2) Section 5 was amended to provide for the regulation of self-service shooting ranges at the Central and Lloyd Wildlife management areas.
301 KAR 3:030. Year-round season for some birds and animals. This administrative regulation was amended as follows: Section 1 was amended to include the woodchuck to the list of wildlife that may be hunted year around.
Licensing
301 KAR 5:020. License agent requirements and responsibilities. This administrative regulation was amended as follows: Section 2 was amended to delete date-sensitive language that was no longer required.
Department Of Agriculture: Organic Agricultural Product Certification
302 KAR 40:010. Certification of organic production or handling operations. Mark Farrow, General Counsel, Randy Wise, Director, Division of Regulation and Inspection, and Hope Crain, represented the Department.
This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs were amended to specify statutory citations; (2) Section 2(1) was amended to establish that an irrigation water test may be required for certification if the primary water source was an open water source; (3) Section 3 was amended to establish that organic labels shall be provided to certified producers via a roll of 500 labels or an ink slick and that the label costs shall be included in the certification fee; and (4) the RELATES TO paragraph and Sections 2, 3, and 6 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Regulation and Inspection; Packaging and Labeling
302 KAR 75:130. Packaging and labeling. This administrative regulation was amended as follows: the RELATES TO, STATUTORY AUTHORITY, and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Sections 1 and 2 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
302 KAR 76:100. Method of sale. In response to a question by Senator Roeding, Mr. Wise stated that that this administrative regulation helped purchasers compare prices and quantities. For example, carpeting, which was sold traditionally by the square yard, now could be sold by the square foot to compare more easily with other items sold by the square foot such as hardwood or vinyl flooring.
This administrative regulation was amended as follows: (1) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to clearly state the necessity for this administrative regulation; and (2) the RELATES TO and STATUTORY AUTHORITY paragraphs and Section 2 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Regulation and Inspection; General
302 KAR 77:010. Tobacco sales commission fees. This administrative regulation was amended as follows: the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to clearly state the necessity for this administrative regulation.
Regulation and Inspection; Motor Fuel
302 KAR 79:010. Testing and inspection program. In response to questions by Representative Allen, Mr. Wise stated that the testing and inspection program employed twelve (12) inspectors who were able to inspect each retail facility every eighteen (18) to twenty-four (24) months. Generally, two (2) percent of facilities were found out of compliance with regulatory standards. Penalties for a violation were based on the violation’s severity and could range from a fifty (50) dollar fine to a $1000 fine and a stop sale order.
This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to specify statutory citations; (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to clearly state the necessity for this administrative regulation; and (3) Sections 3, 4, and 9 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Regulation and Inspection; Scanner
302 KAR 80:010. Examination procedure for price verification. 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; and (2) the RELATES TO and STATUTORY AUTHORITY paragraphs and Section 2 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Regulation and Inspection; Commercial Weighing and Measuring Devices
302 KAR 81:010. Technical requirements for commercial weighting and measuring devices. This administrative regulation was amended as follows: (1) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to clearly state the necessity for this administrative regulation; (2) Sections 1(2) and 2 were amended to delete the references to law enforcement use of weighing and measuring devices because that use was not defined as commercial under KRS 363.590(2) and KRS 363.610; (3) Section 4 was deleted pursuant to KRS 13A.120(2); and (4) the RELATES TO and STATUTORY AUTHORITY paragraphs and Sections 1, 2, 3, and 5 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Natural Resources And Environmental Protection Cabinet: Department for Surface Mining Reclamation and Enforcement: Performance Standards for Surface Mining Activities
405 KAR 16:090. Sedimentation ponds. Allen Luttrell, Deputy Commissioner, and Jim Villines, Branch Manager, represented the Department. In response to questions by Senator Roeding, Mr. Luttrell stated that by statute, the Department was required to approve a sediment pond or other treatment facility within sixty-five (65) days of receiving the mine’s permit application. Even if expedited, the approval process could not be completed in less than fifty-eight (58) days because of the public advertisement and comment period.
This administrative regulation was amended as follows: (1) the Statutory Authority paragraph was amended to add KRS 350.151(1) and to delete other statutory citations; (2) Sections 1, 4, and 6 were amended to cite to KRS 350.050 which authorized the Cabinet to make certain decisions; and (3) the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Sections 1, 2, 4, 5, and 6 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Performance Standards for Underground Mining Activities
405 KAR 18:090. Sedimentation ponds. This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY paragraph was amended to delete statutory citations; (2) Sections 1, 4, and 6 were amended to cite to KRS 350.050 which authorized the Cabinet to make certain decisions; and (3) Sections 1, 2, 4, 5, and 6 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Public Protection And Regulation Cabinet: Office of the Petroleum Storage Tank Environmental Assurance Fund: Petroleum Storage Tank Environmental Assurance Fund
415 KAR 1:140. Laboratory certification. Jim Brannen, Counsel, represented the Fund. In response to a question from Senator Roeding, Mr. Brannen stated that this administrative regulation was amended to establish an alternative accrediting body for an owner or operator of an underground storage tank to use when applying for laboratory certification.
In response to questions from Representative Allen, Mr. Brannen stated that the Underground Storage Tank Division of the Natural Resources and Environmental Protection Cabinet served as the regulator for the remediation process for old storage tanks. The Petroleum Storage Tank Environmental Assurance Fund only paid the expenses incurred during that process.
This administrative regulation was amended as follows: Sections 2 and 3 were amended to comply with the drafting requirements of KRS Chapter 13A.
Labor Cabinet: Department of Workers' Claims
803 KAR 25:010 & E. Procedure for adjustments of claims. Carla Montgomery represented the Department. This administrative regulation was amended as follows: (1) Sections 1, 4, 5, 6, 8, 11, 12, 13, 16, 18, 21, 25, and 27 were amended to comply with the drafting and format requirements of KRS Chapter 13A; and (2) Section 21 was amended to provide for the filing of combined briefs and cross-petitioner’s briefs.
Public Protection And Regulation Cabinet: Department to Insurance: Insurance Contract
806 KAR 14:005. Rate and form filing for life and insurers. Glenn Jennings, Deputy Commissioner, and Elizabeth Johnson, Acting General Counsel, represented the Department. This administrative regulation was amended as follows: (1) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to specify statutory citations; and (2) Sections 1 to 10 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
806 KAR 14:007. Rate and form filing for health insurers. This administrative regulation was amended as follows: (1) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to specify statutory citations; and (2) Sections 1, 2, 5, 6, and 9 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Public Service Commission: Utilities
807 KAR 5:063. Filing requirements and procedures for proposals to construct antenna towers or to co-locate antennas on an existing structure for cellular telecommunications services or personal communications services. Deborah Eversole, General Counsel, and Angela Curry, Counsel, represented the Commission.
In response to a question by Senator Roeding, Ms. Eversole stated that this administrative regulation implemented the statutes which encouraged co-location of antennas on towers. The amendments adjusted the required notice provisions to reflect jurisdictional changes to the Public Service Commission and local planning commissions.
In response to questions by Chairman Arnold, Ms. Eversole stated that this administrative regulation was amended to delete requirements relating to the uniform application. Because statutory amendments now required that application to be filed only with local planning commissions, the regulatory requirements were no longer needed
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) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to reflect statutory language; and (3) Sections 1, 3, and 4 were amended to comply with the drafting requirements of KRS Chapter 13A.
807 KAR 5:100 & E. Board application fees. In response to questions by Senator Roeding, Ms. Eversole stated that this administrative regulation did not apply to public utilities. It only applied to merchant electric generators which were expected to sell most of their power out of state.
In response to questions by Representative Allen, Ms. Curry stated that the application fees were so expensive because the fees were the sole method of funding for the Board. It was quite costly for the Board to evaluate the applications as it required the services of approximately fifteen (15) staff members and additional consultants. However, the Board refunded any unused portion of the application fees to the plants. The Board had not refunded any fees yet because the first application was still in process.
In response to questions by Representative Allen, Ms. Eversole stated that the legislature intentionally funded the Board only through application fees to ensure that Kentucky utility rate payers did not subsidize merchant generating plants.
This administrative regulation was amended as follows: the RELATES TO, STATUTORY AUTHORITY, and NECESSITY, FUNCTION, AND CONFORMITY paragraphs were amended to include statutory references.
807 KAR 5:110 & E. Board proceedings. This administrative regulation was amended as follows: (1) the RELATES TO, STATUTORY AUTHORITY, and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Sections 5 and 9 were amended to include statutory references; (2) Sections 1, 3, 4, 5, and 9 were amended to comply with the drafting requirements of KRS Chapter 13A.
Department of Housing, Buildings and Construction: Standards of Safety
815 KAR 10:060. Kentucky Standards of Safety. Frank Dempsey, General Counsel, Dennis Langford, Commissioner, and David Manley, Fire Marshall, represented the Department. This administrative regulation was amended as follows: (1) Sections 3 and 9 were amended to comply with the drafting and format requirements of KRS Chapter 13A; and (2) Section 9 was amended to correct the edition date of an item incorporated by reference.
Manufactured Homes and Recreational Vehicles
815 KAR 25:090. Site preparation and installation minimum requirements. Dan Chapman represented the Department. In response to questions by Representative Bruce, Mr. Chapman stated that the manufactured home associations were in favor of the amendments to this administrative regulation.
This administrative regulation was amended as follows: Section 3 was amended to require the use of a specified form if a foundation inspection was required.
Cabinet For Health Services: Department for Public Health: Kentucky Birth Surveillance Registry
902 KAR 19:010. Kentucky Birth Surveillance Registry. Jim Career, Legislative Liaison, and Joyce Robl represented the Department. In response to questions by Senator Roeding, Ms. Robl stated that this administrative regulation established a Kentucky Birth Surveillance Registry in which participation by hospitals was voluntary. Participating hospitals gathered the requested information and submitted it to the Registry in an electric format of their choosing. The Registry could not estimate the actual cost for participating hospitals, but most hospitals had already been maintaining the requested information anyway.
This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs were amended to correct statutory citations; and (2) Sections 1 to 9 were amended to comply with the drafting requirements of KRS Chapter 13A.
Department for Medicaid Services: Services
907 KAR 1:019 & E. Outpatient Pharmacy Program. Ellen Hesen, General Counsel, Troy Koch, Director of Pharmacy Services, and Dr. Louis Moore, Medicaid Medical Director, represented the Department. In response to questions by Senator Roeding, Ms. Hesen stated that the Department had provided notice to the Medicaid providers of the new drug prior authorization forms and the forms themselves were fairly self-explanatory. Additionally, the Department was willing to discuss and address any concerns the providers had with the forms.
In response to questions by Senator Roeding, Dr. Moore stated that if a patient was stabilized on a particular medication and had refills remaining on the prescription, there was a grandfather period before prior authorization would be required for continued use of the medication. Ms. Hesen added that the Department had not noticed providers withdrawing from the program because of the prior authorization requirements.
In response to questions by Senator Roeding, Dr. Moore stated that the program’s drug treatment protocols did not require a patient to fail on a drug before another drug could be prior authorized. The alternative drug also could be prior authorized due to adverse side effects, drug interactions, medical contraindications, or other medication justifications.
In response to questions by Chairman Arnold, Dr. Moore stated that the decision to require prior authorization for certain drugs was not based solely on the medications’ cost. The program’s Pharmacy and Therapeutic Committee, comprised of nine participating physicians and three participating pharmacists, reviewed the drugs and made prior authorization recommendations based on effectiveness, alternatives, and other factors, as well as cost.
Senator Roeding stated that he objected to the portion of this administrative regulation that required a patient to fail on a drug therapeutically or due to side-effects before another drug could be prior authorized.
Representative Lee stated that this administrative regulation and its prior authorization provisions conformed to the statutory requirements of its authorizing legislation, House Bill 103 from the 2002 General Session.
This administrative regulation, as amended, was approved on a roll call vote, with Senator Pendleton, Chairman Arnold, Representative Lee, and Representative Bruce voting in support of this administrative regulation, and with Senator Roeding and Representative Allen voting in opposition to this administrative regulation.
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 and 3 to 8 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: Food Stamp Program
921 KAR 3:042. Food Stamp Employment and Training Program. Rosanne Barkley and Karen Doyle, Acting Director, represented the Department. This administrative regulation was amended as follows: (1) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to more accurately state the statutory requirement; (2) Section 1 was amended to remove unnecessary definitions and add others; (3) Section 2(7) was amended to add a work requirement waiver; (4) Section 6(2) was amended to add the lack of child care to the list of factors to be considered when determining "good cause" for quitting employment; (5) Section 8(3) was amended to add labor organization activities to the list of factors to be considered when determining the suitability of employment; and (6) Sections 1 to 10 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: Kentucky Loan Program
11 KAR 3:100. Administrative wage garnishment. Diana Barber, Assistant General Counsel, and Michael Morgan, Student Aid Branch Manager, represented the Authority. In response to questions by Senator Roeding, Ms. Barber stated that the Authority determined whether a wage garnishment would cause an extreme financial hardship on a borrower who was in default by comparing the borrower’s financial status to federal poverty guidelines and federal annual consumer expenditure guidelines. If a borrower’s expenses were greater than the guideline average, the burden of proof was on the borrower to substantiate those expenses. Last year, the Authority recovered $6,000,000 through garnishment.
Department of Treasury: Commonwealth Postsecondary Education Prepaid Tuition Trust Fund
20 KAR 2:070. Using prepaid tuition contract benefits. Karen Mayes, Assistant State Treasurer, and Lynn Fieldhouse, Counsel, represented the Fund.
Board of Examiners of Psychologists
201 KAR 26:160. Fee schedule. Nancy Black, Division of Occupations and Professions, Dr. Robert Illback, Chairperson, and Mark Brengelman, Assistant Attorney General, represented the Board.
Board of Respiratory Care
201 KAR 29:010. Activities under limited mandatory certification. Tom Floro, Chairperson, represented the Board. In response to a question by Senator Roeding, Mr. Floro stated that this administrative regulation was amended to delineate the permissible activities of students with limited mandatory certification.
201 KAR 29:060. Continuing education requirements for persons on inactive status; waiver.
Tourism Development Cabinet: Department of Fish and Wildlife Resources: Fish
301 KAR 1:122. Importation, possession; live fish. Tom Bennett, Commissioner, Jon Gassett, Director, Division of Wildlife, and Benjy Kinman, Director, Division of Fish, represented the Department. In response to a question by Chairman Arnold, Mr. Bennett stated that this administrative regulation was amended so the Department could more easily permit aquariums to import fish or sea creatures if used for educational purposes.
301 KAR 1:150. Waters open to commercial fishing. In response to a question by Senator Roeding, Mr. Bennett stated that commercial fishermen used slat baskets to catch catfish.
Hunting and Fishing
301 KAR 3:027. Hunting and fishing method exemptions for disabled persons.
Department Of Agriculture: Milk Marketing
302 KAR 25:006. Repeal of 302 KAR 25:005, 302 KAR 25:015, 302 KAR 25:025, 302 KAR 25:035, 302 KAR 25:045, 302 KAR 25:055, 302 KAR 25:065, 302 KAR 25:075, 302 KAR 25:085, and 302 KAR 25:095. Mark Farrow, General Counsel, Randy Wise, Director, Division of Regulation and Inspection, and Hope Crain represented the Department.
Pesticides
302 KAR 31:006E. 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, and 302 KAR 31:035.
Regulation and Inspection; Packaging and Labeling
302 KAR 75:011. Repeal of 302 KAR 75:010, 302 KAR 75:020, 302 KAR 75:030, 302 KAR 75:050, 302 KAR 75:060, 302 KAR 75:070, 302 KAR 75:080, 302 KAR 75:100, 302 KAR 75:110, and 302 KAR 75:120.
Regulation and Inspection; Method of Sale
302 KAR 76:011. Repeal of 302 KAR 76:005, 302 KAR 76:015, 302 KAR 76:025, 302 KAR 76:035, 302 KAR 76:045, 302 KAR 76:055, 302 KAR 76:065, 302 KAR 76:075, and 302 KAR 76:085. In response to a question by Senator Roeding, Mr. Farrow stated that retail stores would not be affected adversely by repealing the existing method of sale administrative regulations and replacing them with 302 KAR 76:100 because the existing regulatory scheme was outdated and no longer used. The new administrative regulation incorporated by reference the national standards under which the Department and retail stores were already operating.
Public Protection And Regulation Cabinet: Department to Insurance: Health Maintenance Organizations
806 KAR 38:061E. Repeal of 806 KAR 38:060. Glenn Jennings, Deputy Commissioner, and Elizabeth Johnson, Acting General Counsel, represented the Department.
Electrical Inspectors
815 KAR 35:030. Kentucky certification of electrical contractors. Frank Dempsey, General Counsel, Dennis Langford, Commission, and David Manley, Fire Marshall, represented the Department.
Cabinet For Families And Children: Department of Community Based Services: Family Support: K-Tap, Kentucky Works, Welfare to Work, State Supplementation
921 KAR 2:019. Repeal of 921 KAR 2:018. Rosanne Barkley and Karen Doyle, Acting Director, 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:
Education Professional Standards Board: General Administration
16 KAR 1:040E. Teachers' national Certification Incentive Trust Fund.
16 KAR 1:050E. Local educatory assignment data.
Teaching Certificates
16 KAR 2:180E. One-year conditional certificate.
Department Of Law: Office of the Attorney General: Division of Consumer Protection
40 KAR 2:070E. Procedure for registration of telemarketing companies.
Racial Profiling
40 KAR 7:010. Procedures for reporting allegations of racial profiling.
Revenue Cabinet: Selective Excise Tax; Motor Vehicle Usage
103 KAR 44:070E. Taxation of loaner and rental motor vehicles.
Finance And Administration Cabinet: Purchasing
200 KAR 5:350E. Guaranteed energy savings performance contracting.
Tourism Development Cabinet: Department of Fish and Wildlife Resources: Fish
301 KAR 1:015E. Boats and motor restrictions.
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.
Water Patrol
301 KAR 6:040E. Zoning or marking of waterways.
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 20:250 & E. 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 1:110E. Department of Criminal Justice Training basic training: graduation requirements; records.
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.
Department of Juvenile Justice: Child Welfare
505 KAR 1:150E. Notice of placement.
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 25:009E. Procedure for adjustment of coal workers' pneumoconiosis claims.
803 KAR 25:120E. Training or education programs eligible for retraining incentive benefits and bonuses.
Public Protection And Regulation Cabinet: Department to Insurance: Surplus Lines
806 KAR 10:030E. Reporting requirement for broker's statement and surplus lines tax.
Health Insurance Contracts
806 KAR 17:085E. Minimum standards for short-term nursing home insurance policies.
806 KAR 17:095E. Reimbursement for general anesthesia and facility charges for dental procedures.
806 KAR 17:150E. Health benefit plan rate filing requirements.
806 KAR 17:180E. Standard health benefit plan and comparison format.
806 KAR 17:280E. Registration, utilization review, and internal appeal.
806 KAR 17:290E. Independent External Review Program.
806 KAR 17:310E. Prompt payment of claims reporting requirements.
806 KAR 17:320E. Kentucky Access requirements.
806 KAR 17:330E. Kentucky Access health benefit plans.
806 KAR 17:360E. Prompt payment of claims.
806 KAR 17:440E. Provider agreement, subcontract agreement, and risk-sharing arrangement agreement filing requirements for insurers offering a limited health service benefit plan.
806 KAR 17:450E. Insurance purchasing outlet requirements.
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: Certificate of Need
900 KAR 6:050E. Certificate of need administrative regulation.
Department for Public Health: Communicable Diseases
902 KAR 2:065E. Immunization requirements for long-term care facilities.
Local Health Departments
902 KAR 8:170E. Local health department financial management requirements.
Sanitation
902 KAR 10:046E. Repeal of 902 KAR 10:045.
902 KAR 10:180E. Tattoo, body piercing and permanent makeup administrative regulation.
Department for Medicaid Services: Services
907 KAR 1:013E. Payments for hospital inpatient services.
907 KAR 1:018E. Reimbursement for drugs.
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, and a nursing facility with an all-inclusive rate unit.
907 KAR 1:030E. Home health agency services.
907 KAR 1:031E. Payments for home health services.
907 KAR 1:045E. Payments for mental health center services.
907 KAR 1:055E. Payments for primary care center, federally-qualified health center, and rural health clinic services.
907 KAR 1:065E. Payments for price-based nursing facility services.
907 KAR 1:072E. Payments for homecare waiver services.
907 KAR 1:092E. Payments for personal care assistance waivers services.
907 KAR 1:145E. Supports for community living services for an individual with mental retardation or a developmental disability.
907 KAR 1:155E. Payments for supports for community living services for an individual with mental retardation or a developmental disability.
907 KAR 1:170E. Payments for home and community based waiver services.
907 KAR 1:360E. Preventive and redial public health services provided through interagency agreement.
907 KAR 1:520E. Payments for targeted case management services for adults with chronic mental illness.
907 KAR 1:530E. payments for targeted case management services for severely emotionally disturbed children.
Payment and Services
907 KAR 3:030E. Coverage and payments for IMPACT Plus services.
907 KAR 3:100E. payments for acquired brain injury services.
907 KAR 3:110E. community mental health center substance abuse services.
Kentucky Children's Health Insurance Program
907 KAR 4:020E. Kentucky Children's Health Insurance Program Medicaid Expansion Title XXI of the Social Security Act.
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 1:440E. Standards for children's advocacy centers.
922 KAR 1:450E. Eligibility confirmation for tuition waiver.
922 KAR 1:460. Standards for youth wilderness camps.
Block Grants
922 KAR 3:040E. Allocation formula.
The Subcommittee adjourned at 11:45 a.m. until October 8, 2002, at 10 a.m. in Room 149 of the Capitol Annex.