The January meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, January 14, 2003, 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 Joey Pendleton and Richard Roeding; Representative James Bruce.
Guests: Scott C. Sutherland, Todd Leatherman, Jon Coign, Kim Risinger, Bonnie S. Foley, Shellie Potter, Catherine Johnson, Angela Turton, Frank Merritt, Jason Moseley, Office of the Attorney General; Robert B. Barnes, Kentucky Teachers' Retirement System; Angela Robinson, Joseph Wolford, Steve Sharp, Finance and Administration Cabinet; Gary Munsie, Mark Brengelman, Board of Dentistry; Tom Bennett, Scott Porter, Ellen Benzing, Jon Gassett, Department of Fish and Wildlife Resources; Mark Farrow, Ann Stewart, Mike Ovesen, Department of Agriculture; Hank List, Natural Resources and Environmental Protection Cabinet, Dana Fugazzi, Darin K. Moore, Kentucky State Police; Kevin Noland, Board of Education; John Cooper, Kathy Trent, Bill Doll, Janie Miller, Department of Insurance; Wanda Fowler, Medicaid Services; Karen Doyle, Rosanne Barkley, Glenna Reed, Patti Smith-Glover, Shirley Eldridge, Cabinet for Families and Children; Lige Clark, Republic Services of Kentucky, LLC.; Grant Embry, Funeral Directors Vault, LTD.; Bobbie S. Bryant, Phil Hudson, Kentucky League of Cities, Tomy Sholar, Kentucky Chamber of Commerce.
LRC Staff: Dave Nicholas, Donna Little, Edna Lowery, Karen Smith, Sarah Amburgey, Donna Kemper, Emily Caudill, and Ellen Steinberg.
The following administrative regulation was withdrawn after agreement by the Subcommittee and the promulgating agency:
Natural Resources and Environmental Protection Cabinet: Department for Environmental Protection: Division for Air Quality: Environmental Protection
401 KAR 100:100. Remediation requirements. Hank List, Secretary, represented the Cabinet.
Subcommittee staff stated that this administrative regulation did not comply with KRS 224.01-530. A suggested amendment had been prepared to take care of a number of items but the Cabinet had not responded to those suggested changes. The proposed suggested amendment would have amended the administrative regulation: (1) to specify definitions; (2) to delete a provision requiring a program applicant to reimburse the Cabinet for costs if the applicant withdrew from negotiations prior to an agreed order; (3) to clarify that a site characterization plan would not require any information that was privileged, pursuant to KRS 224.01-040; and (4) throughout to comply with the drafting and format requirements of KRS Chapter 13A. Furthermore, the "Kentucky Risk Assessment Guidance", incorporated by reference in this administrative regulation, was not in conformity with statutory requirements. Appendix C, "Human Health Screening Values", contains numerical values which contravened KRS 224.01-530(1), which required the Cabinet to use as screening levels the numerical values contained in the "Region 9 Preliminary Remediation Goals," published by the United States Environmental Protection Agency. It was the position of staff that this administrative regulation did not comply with statutory authority or the requirements of KRS Chapter 13A.
Secretary List stated that this administrative regulation fulfilled the Cabinet’s statutory mandate to promulgate administrative regulations to implement Senate Bill 2 from the 2001 Regular Session of the General Assembly. The Division for Air Quality had spent an enormous amount of time and resources generating this administrative regulation which the Division felt followed the intent of Senate Bill 2. He wanted to compliment the Division publicly on its efforts.
Secretary List further stated that there was a considerable difference of public opinion over the best way to implement Senate Bill 2. Because of the lack of interim legislative committee meetings, the Cabinet had been hampered in explaining those differences to the General Assembly. The differences were not readily resolvable. To preserve its options as the promulgating agency, the Cabinet wished to withdraw this administrative regulation. The Cabinet would continue to participate in the brownfields task force, created by executive order, to provide an ongoing public forum of discussion for this subject. The Cabinet hoped to have the opportunity to update the General Assembly and their committees on how that discussion progressed.
Senator Roeding stated that there had been adequate opportunities for committee hearings and legislative discussions on this subject due to the joint efforts of the appropriate interim committee chairmen.
Upon agreement of the Subcommittee and Secretary List, this administrative regulation was withdrawn.
The Subcommittee determined that the following administrative regulations, as amended by the promulgating agency and the Subcommittee, complied with statutory requirements:
Department of Law: Office of the Attorney General: Division of Consumer Protection
40 KAR 2:070 & E. Procedure for registration of telemarketing companies. Scott Sutherland, Telemarketing Branch Manager, and Todd Leatherman, Division Director, represented the Division.
In response to a question by Representative Bruce, Mr. Leatherman stated that Representative Robert Buckingham sponsored the authorizing legislation for this administrative regulation.
This administrative regulation was amended as follows: (1) the RELATES TO paragraph was amended to correct a statutory citation; and (2) Sections 1, 2, and 3 were amended to comply with the drafting requirements of KRS Chapter 13A.
40 KAR 2:077. Update of zero call list. This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to correct statutory citations; (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220(3)(f); and (3) Sections 1, 2, and 3 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
40 KAR 2:150. Cremation forms and inspections. Todd Leatherman and Jason Moseley, Assistant Attorney General, represented the Division.
In response to questions by Senator Roeding, Mr. Leatherman stated that this administrative regulation implemented the annual inspection program for crematories. It specified components of the inspection including verification of a crematory’s security.
This administrative regulation was amended as follows: (1) Sections 1, 3, and 5 were amended to conform to statutory requirements for alternative containers, the cremation process, and licensing; (2) Section 3 was amended to use the term “decedent authorizing agent”; and (3) the RELATES TO, STATUTORY AUTHORITY, and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Sections 1 to 9 were amended to specify statutory citations and to comply with the drafting and format requirements of KRS Chapter 13A.
40 KAR 2:250. Cemetery and preneed forms. In response to a question by Senator Roeding, Mr. Moseley stated that preneed merchandise was funeral merchandise, such as caskets, that could be purchased prior to the time of need.
In response to a question by Senator Roeding, Mr. Leatherman stated that this administrative regulation would not increase funeral costs because it merely incorporated by reference forms that were based on existing funeral practices.
This administrative regulation was amended as follows: (1) the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 13 and 14 were amended to rename the “preneed burial contract sellers application form” as the “preneed merchandise sellers application” to better reflect its intended use; (2) Section 1 was amended to establish a definitions section; (3) Sections 9 and 13 were amended to conform to statutory requirements for notice provisions and licensure revocations; and (4) the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 to 17 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Kentucky Teachers' Retirement System: General Rules
102 KAR 1:280. Service credit required for member to qualify for three (3) percent retirement factor. Robert B. Barnes, General Counsel, represented the System.
In response to questions by Senator Roeding, Mr. Barnes stated that a member’s retirement allowance was based on the number of years of service by the member multiplied by a retirement factor. This administrative regulation increased a member’s retirement factor from 2.5 to 3.0 for each year of service in excess of thirty (30). Because many members would delay retirement to receive the higher factor, the increase should create a neutral actuarial impact.
This administrative regulation was amended as follows: the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 3, 4, and 5 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Finance and Administration Cabinet: Purchasing
200 KAR 5:350 & E. Guaranteed energy savings performance contracting. Angela Robinson, Assistant General Counsel, and Joseph Wolford, ESPC Coordinator, represented the Cabinet.
In response to questions by Senator Roeding, Mr. Wolford stated that a guaranteed energy savings performance contract enabled a state agency or postsecondary institution to utilize an energy service company to identify energy conservation measures which could be implemented and paid for through energy cost savings. The energy service company guaranteed the savings.
This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs were amended to correct statutory citations; (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended for accuracy; (3) Section 1 was amended to add statutory citations and definitions; (4) Sections 2 and 3 were amended for clarity and to comply with KRS Chapter 13A; and (5) Section 3 was amended to supply contract language, as required by the enabling statute.
Boards and Commissions: Board of Dentistry
201 KAR 8:460. Administration of anesthesia by dental hygienists. Mark Brengelman, Assistant Attorney General, and Gary Munsie, Director, represented the Board.
In response to questions by Senator Roeding, Mr. Munsie stated that this administrative regulation established a nonrecurring fee for dental hygienists choosing to administer anesthesia. The legislative authorization of that practice and it’s resulting certification fee were requested by the dental profession.
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; and (2) remaining sections were amended to: (a) comply with the drafting and format requirements of KRS Chapter 13A; (b) delete provisions that repeated or summarized statutory provisions; and (c) establish provisions for the regulation of the administration of anesthesia by dental hygienists as provided by statute.
Tourism Development Cabinet: Department of Fish and Wildlife Resources: Hunting and Fishing
301 KAR 3:100. Special commission permits. Tom Bennett, Commissioner, and Jon Gassett, Director, represented the Department.
This administrative regulation was amended as follows: Sections 1 and 2 were amended to comply with the drafting and formatting requirements of KRS Chapter 13A.
Department of Agriculture: Livestock Sanitation
302 KAR 20:010. Definitions. Mark Farrow, General Counsel, and Mike Ovesen, Executive Director, Kentucky Pork Producers, represented the Department.
In response to questions by Chairman Arnold, Mr. Farrow stated that 302 KAR 20:100 was amended to prohibit the feeding of garbage to swine. This administrative regulation was amended to change the definition of “garbage.” As amended, garbage was defined as “all animal and vegetable waste resulting from the handling, preparation, consuming, and cooking of food; unconsumed food in all public and private establishments and residences; and the offal and carcasses of dead animals, poultry, and fish or parts thereof.” It was critical to include cooked food in the definition of garbage because scientists believed that the disease epidemic in England originated from the feeding of cooked food to livestock.
In response to questions by Senator Roeding, Mr. Farrow stated that the garbage-feeding prohibition was necessary because any garbage served as a tremendous potential hazard to Kentucky’s billion dollar livestock industry. The Department was statutorily required to protect that industry.
In response to questions by Chairman Arnold, Mr. Ovesen stated that basically, the commercial feeding of garbage to swine had ended in Kentucky. However, the pork industry wanted this regulatory prohibition because it would improve the public’s perception of food safety in Kentucky.
In response to questions by Senator Roeding, Mr. Farrow stated that the residential component of the garbage definition was necessary because the Department feared the consequences if a disease outbreak originated from a private residence.
In response to questions by Representative Bruce, Mr. Ovesen stated that establishing a personal use exception to the prohibition was not as innocuous as it appeared. An owner could feed a hog garbage intending to slaughter the hog for personal consumption and then decide to sell the hog on the market instead if custom slaughtering proved to be too expensive.
Senator Roeding made a motion, which was not seconded, to delete the residential component of the garbage definition. The motion failed for lack of a second.
This administrative regulation was approved, with Senator Roeding voting not to approve, and was amended as follows: the Title, the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs, and Section 1 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
302 KAR 20:100. Garbage. In response to a question by Representative Bruce, Subcommittee staff stated that the penalty for violating this administrative regulation was a monetary fine for a first offense and a monetary fine and sixty (60) to 120 days imprisonment for subsequent offenses.
In response to questions by Representative Bruce, Mr. Farrow stated that the Department would rely on its existing animal health inspectors to enforce this administrative regulation. The Department did not expect many regulatory violations to occur because there were only seven remaining facilities with permits to feed treated garbage to swine under the prior version of this administrative regulation. The Department’s sole purpose for amending this administrative regulation was to protect food safety and the safety of the public and the livestock industry.
This administrative regulation was amended as follows: (1) the RELATES TO, STATUTORY AUTHORITY, and NECESSITY, FUNCTION, AND CONFORMITY paragraphs were amended to specify statutory citations; and (2) Section 2 was amended to delete penalty provisions for regulatory violations because they were established by KRS 257.050 and 257.990.
Justice Cabinet: Department of State Police: Personnel: General
502 KAR 5:020. Code of ethics. Darin Moore, Strategic Planning Branch, and Dana Fugazzi, Counsel, represented the Department.
This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to correct statutory citations; (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220(3)(f); and (3) Section 1 and the material incorporated by reference were amended to: (a) remove the provisions previously incorporated by reference; (b) create new Sections 1 to 6 to establish those provisions in the body of the administrative regulation, as required by KRS Chapter 13A; (c) delete provisions that related to the internal management of the Kentucky State Police, pursuant to KRS 13A.010(2)(a); and (d) incorporate by reference the required forms.
Education, Arts, and Humanities Cabinet: Kentucky Board of Education: Department of Education: Office of District Support Services: School Administration and Finance
702 KAR 3:310. Differentiated compensation. Kevin Noland represented the Department.
This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY paragraph was amended to correct statutory citations; and (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).
Office of Learning Programs Development: Office of Instruction
704 KAR 3:390. Extended school services. This administrative regulation was amended as follows: the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 2, 3, 4, 6, and 7 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Public Protection and Regulation Cabinet: Department of Insurance: Agents, Consultants, Solicitors and Adjusters
806 KAR 9:070 & E. Examinations. Janie Miller, Commissioner, and Glenn Jennings represented the Department.
This administrative regulation was amended as follows: the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 2, 4, 5, 6, and 7 were amended for clarity and to insert statutory and regulatory citations.
806 KAR 9:210 & E. Financial responsibility forms; time limit for replacement of evidence of licensee financial responsibility. In response to questions by Representative Bruce, Ms. Miller stated that an insurance company was not required to assume the financial responsibility of an agent. The agent could satisfy the financial requirements in other ways such as through a bond. Additionally, of Kentucky’s approximately 70,000 insurance agents, about half were nonresident agents.
This administrative regulation was amended as follows: Section 1 was amended to delete a redundant phrase.
Health Insurance Contracts
806 KAR 17:095 & E. Reimbursement for general anesthesia and facility charges for dental procedures. In response to a question by Senator Roeding, Ms. Miller stated that this administrative regulation implemented the statutory requirement that insurers pay for anesthesia during dental procedures for eligible patients.
This administrative regulation was amended as follows: (1) Section 1 was amended to place definitions in alphabetical order; and (2) 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.
806 KAR 17:280 & E. Registration, utilization review, and internal appeal. This administrative regulation was amended as follows: the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 2, 3, 4, 8, 9, 10, and 12 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
806 KAR 17:290 & E. Independent External Review Program. This regulation was amended as follows: the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 2, 3, 4, 5, 6, 10, and 12 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Cabinet for Health Services: Department for Medicaid Services: Medicaid Services
907 KAR 1:006 & E. Coverage of and payment for services for persons eligible for benefits under Title XVIII. Wanda Fowler, Principal Assistant, represented the Department.
This administrative regulation was amended as follows: (1) the TITLE was amended to reflect that this administrative regulation related to persons eligible for benefits under both Title XIX and Title XVIII; (2) the RELATES TO, STATUTORY AUTHORITY, and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Section 1 were amended to correct statutory citations; and (3) Sections 1, 2, and 5 were amended to: (a) comply with the drafting and format requirements of KRS Chapter 13A; and (b) delete references to persons classified as “Qualified Individual (2)” to comply with federal law.
Cabinet for Families and Children: Department for Community Based Services: Family Support: Energy Assistance Program/Weatherization
921 KAR 4:116 & E. Low Income Home Energy Assistance Program or "LIHEAP" Karen Doyle and Rosanne Barkley represented the Department.
This administrative regulation was amended as follows: (1) Section 1 was amended to add technical definition of "Poverty Level"; and (2) Sections 1 to 4 and 6 to 11 were amended for clarity and to comply with the formatting requirements of KRS Chapter 13A.
The Subcommittee determined that the following administrative regulations complied with statutory authority:
Tourism Development Cabinet:Department of Fish and Wildlife Resources: Fish
301 KAR 1:015. Boats and motor restrictions. Tom Bennett, Commissioner, and Jon Gassett, Director, represented the Department.
Game
301 KAR 2:132. Elk depredation permits and quota hunts.
301 KAR 2:240. Statewide bobcat harvest season.
The Subcommittee and the promulgating administrative agencies agreed to defer consideration of the following administrative regulations to the next meeting of the Subcommittee:
Governor's Office: Telehealth Board
10 KAR 3:050 & E. Establishing protocols and standards for telehealth network training centers and rural sites.
Kentucky Agency for Substance Abuse
10 KAR 7:020. Kentucky Agency for Substance Abuse Policy (KY-ASAP) on-going funding.
Education Professional Standards Board: General Administration
16 KAR 1:040 & E. Teachers' National Certification Incentive Trust Fund.
Department of State: Registry of Election Finance: Reports and Forms
32 KAR 1:100E. Slate software.
32 KAR 1:190E. Forms for gubernatorial slates of candidates and related filers.
32 KAR 1:200E. Transfers of public funds for gubernatorial slates of candidates.
Department of Law: Office of the Attorney General: Division of Consumer Protection
40 KAR 2:078. Interface with federal database.
Tourism Development Cabinet: Department of Fish and Wildlife Resources: Game
301 KAR 2:221E. Waterfowl seasons and limits.
301 KAR 2:222E. Waterfowl hunting requirements.
Hunting and Fishing
301 KAR 3:110E. Special event mobility-impaired deer, turkey and waterfowl hunts.
Natural Resources and Environmental Protection Cabinet: Department for Environmental Protection: Division of Waste Management: Underground Storage Tanks
401 KAR 42:005E. Definitions related to 401 KAR Chapter 42.
Division for Air Quality: General Standards of Performance
401 KAR 63:105. Requirements for control technology determinations for major sources in accordance with Clean Air Act section 112(g) and (j).
Justice Cabinet: Department of Criminal Justice Training: Kentucky Law Enforcement Council:
503 KAR 1:140E. Peace officer professional standards.
Concealed Deadly Weapons
503 KAR 4:040E. Required instructor training.
503 KAR 4:050E. Required content and conduct of the applicant training course.
503 KAR 4:060E. Reporting test scores and issuing certificates of completion.
503 KAR 4:080E. Repeal of 503 KAR 4:030 and 503 KAR 4:070.
Law Enforcement Foundation Program Fund
503 KAR 5:090E. Participation: requirements; application; withdrawal.
Transportation Cabinet: Department of Highways: Right-of-way
603 KAR 4:035. Log signs; placement along fully-controlled and partially-controlled access highways.
603 KAR 4:040. TODS signs; placement on public roads other than interstates or parkways.
Traffic
603 KAR 5:230. The extended weight coal or coal by-products haul road system and associated bridge weight limits.
603 KAR 5:301. Weight (mass) classification of the state-maintained system of highways.
Cabinet for Health Services: Department for Public Health: Sanitation
902 KAR 10:046E. Repeal of 902 KAR 10:045.
902 KAR 10:180 & E. Tattoo, body piercing and permanent makeup administrative regulation.
State Health Plan
902 KAR 17:041E. State Health Plan for facilities and services.
Department for Medicaid Services: Medicaid Services
907 KAR 1:008E. Ambulatory surgical center services and reimbursement.
907 KAR 1:015E. Payments for hospital outpatient services.
907 KAR 1:155E. Payments for supports for community living services for an individual with mental retardation or a developmental disability.
907 KAR 1:320E. Kentucky Patient Access and Care System (KenPAC).
907 KAR 1:604E. Recipient cost-sharing.
907 KAR 1:800E. Breast and cervical cancer eligibility for Medicaid.
Payment and Services
907 KAR 3:110E. Community mental health center substance abuse services.
Cabinet for Families and Children: Department for Community Based Services: Family Support: K-Tap, Kentucky Works, Welfare to Work, State Supplementation
921 KAR 2:520. Work Incentive or "WIN".
Food Stamp Program
921 KAR 3:020E. Financial requirements.
921 KAR 3:025E. Technical requirements.
Protection and Permanency: Child Welfare
922 KAR 1:460. Standards for youth wilderness camps.
922 KAR 1:490E. Background checks for foster and adoptive parents and reporting requirements.
The Subcommittee adjourned at 11:15 p.m. until February 11, 2003, upon adjuournment of both houses, in Room 149 of the Capitol Annex.