The February meeting of the Administrative Regulation Review Subcommittee was held on Wednesday, February 12, 2003, at 5:00 PM, 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; Representatives James Bruce and Jimmie Lee.
Guests: Rob Sprang, Ryan Halloran, David Mawn, Karen C. Jones, Governor's Office; Phillip Rogers, Brenda Allen, Educational Professional Standards Board; William P. Hanes, Gerri Miller, Shawn Sparks, Eric Wampler, Kentucky Retirement Systems; Nancy L. Black, Board of Fee-based Pastoral Counselors; Hank List, Natural Resources and Environmental Protection Agency; Steve Lynn, Department of Criminal Justice Training; Elizabeth D. Baker, Transportation Cabinet; Kevin Noland, Michael Miller, Board of Education; Susan Gormley Tipton, Stephen G. Horner, Alcoholic Beverage Control; John Gray, Samuel Burnette, James Carreer, Mike Littlefield, Cabinet for Health Services; Rosanne Barkley, Karen Doyle, Cabinet for Families and Children; Ernie Pitt, Cooksey Brothers Disposal Co., Inc.; Patricia A. Clare, Louisville Downtown Development Corp., Ron Wolf, Rick Johnstone, Louisville Metro Government; Howard Beauman, Kentucky League on Alcohol and Gambling Problems; Kenneth Handmaker, Cordish Corporation; Joe Purvis, Mac Werner, Buckhorn Wilderness Program; James W. Jitter Allen, Republic Industries; Jack Baker, Republic Services.
LRC Staff: Dave Nicholas, Donna Little, Edna Lowery, Karen Smith, Sarah Amburgey, Donna Kemper, Emily Caudill, and Ellen Steinberg.
The Subcommittee determined that the following administrative regulations, as amended by the promulgating agency and the Subcommittee, complied with statutory requirements:
Governor's Office: Telehealth Board
10 KAR 3:050 & E. Establishing protocols and standards for telehealth network training centers and rural sites. Ryan Halloran, Assistant Attorney General, and Rob Sprang, Co-Director, represented the Board.
This administrative regulation was amended as follows: the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 to 3 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Kentucky Agency for Substance Abuse
10 KAR 7:020. Kentucky Agency for Substance Abuse Policy (KY-ASAP) on-going funding. David Mawn and Karen Jones represented the Agency.
This administrative regulation was amended as follows: (1) the Title and the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs were amended for minor technical errors; (2) Section 1 was amended to define terms; (3) Section 2 was replaced with clarified proposal requirements; (4) Section 3 was replaced with local board reporting requirements and provisions for findings of noncompliance; and (5) Section 4 was replaced to clarify application and contract requirements.
Education Professional Standards Board: Teaching Certificates
16 KAR 2:040. Interdisciplinary early childhood education, birth to primary. Brenda Allen, Counsel, and Phillip Rogers, Division Director, represented the Board.
This administrative regulation was amended as follows: Sections 1, 2, 4, 5, 7, 8, 9, and 10 were amended to comply with the drafting requirements of KRS Chapter 13A.
16 KAR 2:070. Professional certificate for school social worker. This administrative regulation was amended as follows: the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 and 3 were amended to comply with the drafting requirements of KRS Chapter 13A.
16 KAR 2:080. Provisional and probationary certificates for school social worker. This administrative regulation was amended as follows: Sections 1, 2, and 4 were amended to comply with the drafting requirements of KRS Chapter 13A.
16 KAR 2:140. Probationary certificate for teachers of children, birth to primary. This administrative regulation was amended as follows: Sections 2 and 3 were amended to comply with the drafting requirements of KRS Chapter 13A.
Assessment
16 KAR 6:010. Written examination prerequisites for teacher certification. This administrative regulation was amended as follows: Sections 2 to 6 were amended to comply with the drafting requirements of KRS Chapter 13A.
Finance and Administration Cabinet: Kentucky Employees' Retirement System: General Rules
105 KAR 1:220. Annual disability review. Bill Hanes, Executive Director, Gerri Miller, and Eric Wampler, General Counsel, represented the Cabinet.
This administrative regulation was amended as follows: Section 1 was amended to: (1) specify the type of information required by examiners; and (2) comply with the drafting and format requirements of KRS Chapter 13A.
Natural Resources and Environmental Protection Cabinet: Department for Environmental Protection: Division of Waste Management: Solid Waste Facilities
401 KAR 47:095. Administrative procedures concerning the environmental remediation fee. Hank List, Secretary, and Robert Daniell, Director, represented the Cabinet. Ernie Pitt, Counsel, Cooksey Brothers Disposal Co., appeared in opposition to this administrative regulation.
Mr. Pitt stated that there was a discrepancy between this administrative regulation and the authorizing statute. The authorizing statute clearly assessed the environmental remediation fee against the waste generators. However, the forms incorporated by reference in this administrative regulation suggested that waste disposal facilities would be required to remit the fee to the Cabinet even if they were unable to collect the fee from the generators. He requested that the administrative regulation be amended to permit generators to pay the remediation fee directly to the Cabinet rather than having to utilize the waste disposal facilities as a conduit. Additionally, he requested that the administrative regulation be amended to specify that the waste disposal facilities were not required to remit the fee to the Cabinet if the generators failed to pay it.
Mr. Daniell stated that the authorizing statute required the waste disposal facilities to act as a conduit for the fee. Furthermore, it would be a practical impossibility for the Cabinet to collect the fee directly from all of the individual generators.
Secretary List stated that there was no statutory mechanism for the non-payment of the remediation fee by the generators. If there was widespread refusal to pay, the statute would need to be amended to address that issue. The Cabinet was committed to working with the generators and waste disposal facilities to resolve the fee payment problem.
In response to a question from Chairman Arnold, Secretary List stated that only one other entity had approached the Cabinet with concerns about the remediation fee payment process.
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 add authorizing language; and (3) Sections 1 and 2 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Justice Cabinet: Department of Criminal Justice Training: Concealed Deadly Weapons
503 KAR 4:040 & E. Required instructor training. Steve Lynn, Assistant General Counsel, represented the Department.
This administrative regulation was amended as follows: the RELATES TO paragraph and Section 1 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
503 KAR 4:050 & E. Required content and conduct of the applicant training course. In response to a question by Representative Bruce, Mr. Lynn stated that this administrative regulation did not make the training course requirements so stringent that applicants could not pass.
This administrative regulation was amended as follows: the RELATES TO paragraph and Sections 2, 4, and 6 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
503 KAR 4:060 & E. Reporting test scores and issuing certificates of completion.
This administrative regulation was amended as follows: the RELATES TO paragraph and Section 1 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Transportation Cabinet: Department of Highways: Division of Professional Services: Traffic
603 KAR 5:230. The extended weight coal or coal by-products haul road system and associated bridge weight limits. Elizabeth Baker, Assistant General Counsel, and Dawn Offerman, Division of Planning, represented the Department.
In response to questions by Chairman Arnold, Ms. Baker stated that this administrative regulation authorized the Cabinet to post the Extended Weight Coal or Coal by-product Haul Road System (EWCHRS) on the Cabinet's website which improved the Cabinet's ability to update the system and the public's ability to access it. Additionally, the Transportation Cabinet was responsible for repairing roads damaged from coal trucks.
In response to a question by Chairman Arnold, Ms. Offerman stated that coal could be hauled on any road if the road's weight limit was not exceeded. This administrative regulation established a separate system for vehicles hauling extended weights of coal.
In response to a question from Representative Bruce, Ms. Baker stated that the Cabinet promulgated this administrative regulation to protect the public by determining which roads and bridges could withstand extended weights.
This administrative regulation was amended as follows: (1) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to insert authorizing language; and (2) Sections 1 to 5 and 10 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
603 KAR 5:301. Weight (mass) classification of the state-maintained system of highways. This administrative regulation was amended as follows: the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 1 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Education, Arts, and Humanities Cabinet: Kentucky Board of Education: Department of Education: Office of District Support Services: General Administration
702 KAR 1:150. Employment of KTRS retiree in full-time position. Kevin Noland represented the Department.
In response to questions by Senator Roeding, Mr. Noland stated that this administrative regulation addressed the teacher shortage by encouraging retired teachers to return to the classroom in areas of high demand by allowing them to receive their full retirement benefits and a reduced teaching salary. A separate program with the same goal, the alternative certification program established by the Educational Professional Standards Board, enabled retired professionals to be certified as educators.
This administrative regulation was amended as follows: the RELATES TO, STATUTORY AUTHORITY, and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Sections 2 and 3 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Office of Learning Programs Development: Office of Instruction
704 KAR 3:455. Instructional resource adoption process. In response to a question by Senator Roeding, Mr. Noland stated that this administrative regulation created no fiscal impact.
This administrative regulation was amended as follows: (1) Section 1 was amended to place the definitions in alphabetical order; (2) Sections 1 and 6 were amended to specify citations; and (3) Sections 1, 3, and 6 to 22 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
704 KAR 3:510. Advanced placement. This administrative regulation was amended as follows: 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.
Public Protection and Regulation Cabinet: Department of Alcoholic Beverage Control: Licensing
804 KAR 4:370. Entertainment destination center license. Stephen Horner, Commissioner, represented the Department.
In response to a question by Representative Bruce, Mr. Horner stated that this administrative regulation only applied to cities of the first class.
In response to a question by Senator Roeding, Mr. Horner stated that the creation of the entertainment destination center license and its $7,500 fee had received major support.
This administrative regulation was amended as follows: (1) the definition of "Entertainment Destination Center" in Section 1 was amended to include facilities located in a county containing a city of the first class; (2) the definition of "Physical Confines" in Section 1 was amended to specify the nature of the required physical barrier; (3) Section 4 was amended to: (a) clarify that the permissible hours could not exceed limits set by applicable state statutes and local ordinances; (b) establish as a prerequisite the provision of adequate security; and (c) require minors to be easily distinguished from other patrons; (4) Section 8 was amended to require licensure proceedings to comply with KRS Chapters 13B and 243; and (5) Sections 1, 3, 4, and 7 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
Cabinet for Health Services: Office of Certificate of Need: Certificate of Need
900 KAR 6:020. Certificate of need application fee schedule. John Gray, Director, represented the Office.
In response to questions from Senator Roeding, Mr. Gray stated that this administrative regulation was amended to increase the fee schedule so the Certificate of Need Office would be self-sufficient. The Office had not received any objections regarding the increase. The amendments replaced the existing percentage fee scale with a flat fee scale.
This administrative regulation was approved, with Senator Roeding voting not to approve, and 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 was amended to: (a) clarify the requirements; and (b) comply with the drafting and format requirements of KRS Chapter 13A.
Department for Mental Health and Mental Retardation Services: Mental Health
908 KAR 2:210. Domestic violence offender treatment certification standards. Mike Littlefield, Administrative Regulation Coordinator, and Dave Gutierrez, Program Administrator, represented the Department.
In response to a question from Senator Roeding, Mr. Gutierrez stated that this administrative regulation was amended to clarify that sixteen (16) hours of continuing education were required every two (2) years.
This administrative regulation was amended as follows: (1) Sections 1, 2, 6, 8, and 12 were amended to specify citations; and (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 to 8, and 10, 12, 13, and 15 were amended to comply with the drafting and format requirements of KRS Chapter 13A.
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". Karen Doyle, Rosanne Barkley, and Joe Purvis, Presbyterian Child Welfare Agency, represented the Department.
In response to questions by Senator Roeding, Ms. Barkley stated that this administrative regulation was amended to restructure the federally funded services for working families transitioning off welfare. The prior forms of financial assistance were consolidated into a reimbursement for workers that continued to remain employed. The reimbursement assisted with the cost of work-related expenses such as transportation and clothing. The restructuring should be budget neutral. The restructuring was based on a study conducted by the Manpower Demonstration Research Corporation which concluded that supplements were more beneficial than crisis and case management driven payments in keeping workers off welfare.
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 and Sections 2, 5, and 7 were amended for clarity; and (3) the forms incorporated by reference were updated.
Protection and Permanency: Child Welfare
922 KAR 1:460. Standards for youth wilderness camps. In response to a question by Senator Roeding, Mr. Purvis stated that youth wilderness camps were intended for troubled teens such as those probated to the Department of Juvenile Justice or those committed to the Cabinet for Families and Children.
This administrative regulation was amended as follows: (1) the Title, STATUTORY AUTHORITY, and NECESSITY, FUNCTION, AND CONFORMITY paragraphs were amended for accuracy; (2) Section 1 was amended to delete unnecessary definitions and clarify others; (3) Section 2 was amended to remove redundant language and add accreditation criteria; (4) Section 3 was replaced with provisions for decertification; (5) Section 4 was replaced with special provisions for the optional solo experience; and (6) Sections 4 through 12 were deleted.
The Subcommittee determined that the following administrative regulations complied with statutory authority:
Board of Certification for Fee-Based Pastoral Counselors
201 KAR 38:020. Application. Nancy Black, Division of Occupations and Professions, represented the Board.
201 KAR 38:040. Fees.
Justice Cabinet: Department of Criminal Justice Training: Concealed Deadly Weapons
503 KAR 4:080E. Repeal of 503 KAR 4:030 and 503 KAR 4:070. Steve Lynn, Assistant General Counsel, 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:
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.
Finance and Administration Cabinet: Kentucky Employees' Retirement System: General Rules
105 KAR 1:370E. Kentucky Retirement Systems personnel policies.
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 1:110E. Department of Criminal Justice Training basic training: graduation requirements; records.
503 KAR 1:140E. Peace officer professional standards.
Law Enforcement Foundation Program Fund
503 KAR 5:090E. Participation: requirements; application; withdrawal.
Transportation Cabinet: Department of Highways: Division of Professional Services: Professional Engineering and Related Services
600 KAR 6:040. Prequalification of firms for professional engineering or related services.
600 KAR 6:060. Professional engineering service selection committee.
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.
603 KAR 4:045. Cultural and recreational supplemental guide signs and boundary signs.
Cabinet for Health Services: Department for Public Health: Sanitation
902 KAR 10:060. On-site sewage disposal application fee. Jim Carreer, Legislative Liaison, and Sam Burnette, Division Director, represented the Division.
In response to questions by Senator Roeding, Mr. Carreer stated that this administrative regulation established an application fee for individual homes that needed septic tanks. Last year, there were 18,000 applications. The amendments to this administrative regulation increased the application fee by ten (10) dollars.
In response to questions by Senator Pendleton, Mr. Carreer stated that the fee had not been increased in ten (10) years. The Department used the fee to cover the cost of training the local environmentalists and for sending out state inspectors to assist local health departments in developing systems and resolving complaints.
Representative Bruce made a motion to defer consideration of this administrative regulation. Without objection, and with agreement of the Department, this administrative regulation was deferred.
Cabinet for Health Services: Department for Public Health: 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 1:145E. 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.
Cabinet for Families and Children: Department for Community Based Services: Family Support: Food Stamp Program
921 KAR 3:020E. Financial requirements.
921 KAR 3:025E. Technical requirements.
Protection and Permanency: Child Welfare
922 KAR 1:490 & E. Background checks for foster and adoptive parents and reporting requirements.
The Subcommittee adjourned at 6:10 p.m. until March 11, 2003, at 10 a.m., in Room 149 of the Capitol Annex.