The September meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, September 9, 2003, at 10:30 AM, in Room 149 of the Capitol Annex. Senator Damon Thayer, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Damon Thayer, Co-Chair; Representative John Arnold Jr, Co-Chair; Senators Joey Pendleton, Richard Roeding, and Gary Tapp; Representatives Jimmie Lee, and Jon David Reinhardt.
Guests: Diana Barber, Michael Morgan, Kentucky Higher Education Assistance Authority; Brenda Allen, Dr. Phillip Rogers, Educational Professional Standards Board; David Sexton, Attorney General's Office; G. Mitchell Mattingly, Crime Victims Compensation Board; Dick Carroll, Board of Accountancy; Connie Calvert, Jerald F. Combs, Board of Optometric Examiners; Gary Munsie, Board of Dentistry; Nathan Goldman, Board of Nursing; Nancy Black, Jim Grawe, Julya Westfall, Board of Occupational Therapy; Thomas Floro, Peggy Lacy Moore, Board of Respiratory Care; Tom Bennett, Ellen Benzing, Jim Lane, Scott Porter, Department of Fish and Wildlife Resources; Sean Alteri, Lona Brewer, Millie Ellis, Bob Logan, John Lyons, Natural Resources and Environmental Protection Agency; Keith Horn, Margaret Johnson, Steve Lynn, Justice Cabinet; Kevin Noland, Board of Education; John N. Osborne, Ed West, Western Kentucky University; Carla Montgomery, Department of Workers' Claims; Virginia Davis, Pam Helton, Steven G. Horner, Alcoholic Beverage Control; Carrie Banahan, Glenn Jennings, Melea Kelch, William Nold, Brenda Parker, Chandra Venettozzi, Ralph Von Derau, Department of Insurance; David Reichert, David Coyle, Department of Financial Institutions; V.G. Banta, Bety Barber, Leah Brown, Charles Douglass, Marcia R. Morgan, Gina Oney, Frank Persinger, Alex Reese, Susanne Rogers, Ben Sweger, Cabinet for Health Services; Rosanne Barkley, Wendy Cumpston, Karen Doyle, Cabinet for Families and Children; Darlene Eakin, Charlie Heck, Ky Optometric Association; Drew Cook, Eric Flack, WAVE-TV; Patricia Claussen, Tonya Haines, Chris Williams, Reva Williams, Active Services; Debra Rutledge, Nancy Shell, Family Home Health Adult Day Care Services; Patricia Buzonas, National Health Services; Connie Crowe, Stephanie Arnett; Braunwyn Delco, NHOA; Bob Fritz, Christian Co. Health Dept.; Kathy Gannoe, Nursing Home Ombudsman Agency of Bluegrass; Rebecca Garrett, Adult Day Care Patient; Jeff Harper, Ky Farm Bureau; Pamela Jackson, Eldercare Adult Daycare; Ellen Kershaw, Alzheimer's Association; Rosie Miklavcic, Franklin Co. Health Dept.; Lisa Mink, Pulaski Day Services, Inc.; Carrie Morgeson, ARMS Advocates for Restoring Medicaid Services; Rosemary Moore, Active Adult Day, Russel Springs, Ky.; Carol Blevins Ormay, Kentucky Hospital Association; Wendy Puryear, Green Co. Adult Day Care Services; Brenda Rainwater, Health Management Assoc. Adult Day Services; Anne Marie Regan, Office of Kentucky Legal Services; Robin Rhoads, Georgetown and Grant County Active Day; David Strohmeier, Frankfort Active Day Center; Anne Sutty, Timothy Sutty; Holly Turner, Community Hospice of Ashland; Kelly Upchurch, Kentucky Association of Adult Day Centers.
LRC Staff: Dave Nicholas, Donna Little, Donna Kemper, Karen Smith, Sarah Amburgey, Ellen Steinberg and Emily Caudill.
Administrative regulations reviewed by the Subcommittee:
Kentucky Higher Education Assistance Authority: Kentucky Loan Program
11 KAR 3:100. Administrative wage garnishment. Diana Barber, Assistant General Counsel, and Michael Morgan, Manager, Student Aid Programs, represented the Authority.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Section 4(5) to correct statutory citations; and (2) to amend Sections 3, 4, and 6 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
KHEAA Grant Programs
11 KAR 5:001. Definitions pertaining to 11 KAR Chapter 5. A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 1 to correct statutory citations; and (2) to amend Section 1 to: (a) comply with the drafting and format requirements of KRS Chapter 13A; and (b) correct a cross-reference to another administrative regulation. Without objection, and with agreement of the agency, the amendments were approved.
11 KAR 5:140. KTG award determination procedure.
11 KAR 5:145. CAP grant award determination procedure. A motion was made and seconded to approve the following amendments: to amend Section 4(4) to specify the requirements if there was an overpayment, to comply with KRS 13A.222(4)(a). Without objection, and with agreement of the agency, the amendments were approved.
11 KAR 5:160. Disbursement procedures. A motion was made and seconded to approve the following amendments: to amend Sections 2, 3, 4, and 6 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
KHEAA Work-Study Program
11 KAR 6:010. KHEAA Work-Study Program. A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph and Section 1 to correct statutory citations; (2) to amend Sections 1, 3, 4, 6, and 7 to comply with the drafting and format requirements of KRS Chapter 13A; (3) to amend Section 3 to delete the reference to “eligible program of study” to be consistent with other changes in the administrative regulation; and (4) to amend Section 6 to clarify that a student participating in the alternate work plan was not required to be enrolled at least half-time, to be consistent with other provisions in the administrative regulation. Without objection, and with agreement of the agency, the amendments were approved.
Teacher Scholarship Loan Program
11 KAR 8:030. Teacher scholarships. A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 2, 3, 6, 10, and 12 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Kentucky Educational Savings Plan Trust
11 KAR 12:060. Cancellation, partial withdrawal, and payment of refund.
Osteopathic Medicine Scholarship Program
11 KAR 14:060. Osteopathic Medicine Scholarship Program application of payments. A motion was made and seconded to approve the following amendments: to amend Sections 1 and 2 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Commonwealth Merit Scholarship Program
11 KAR 15:010. Definitions for 11 KAR Chapter 15. A motion was made and seconded to approve the following amendments: to amend Section 1 to: (1) correct statutory citations; and (2) comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Kentucky Higher Education Student Loan Corporation: Guaranteed Student Loans and Loans to Parents
15 KAR 1:040. Eligibility for insured student loans made directly by the corporation. A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 to 5 to comply with the drafting and format requirements of KRS Chapter 13A; and (2) to create a new Section 6 to incorporate by reference the required application forms. Without objection, and with agreement of the agency, the amendments were approved.
Education Professional Standards Board: General Administration
16 KAR 1:040 & E. Teachers' National Certification Incentive Trust Fund. Dr. Phillip Rogers, Division Director, and Brenda Allen, General Counsel, represented the Board.
A motion was made and seconded to approve the following amendments: to amend Sections 1 to 7 and 9 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Attorney General's Office: Department of Law: Medical Examination of Sexual Abuse Victims
40 KAR 3:011E. Repeal of 40 KAR 3:010, Payment schedule for medical examination of victims of sexual offenses. David Sexton, Division Director, represented the Department.
Crime Victims Compensation Board: Sexual Assault Examination Program
107 KAR 2:010 & E. Payment schedule for medical examination of reported victims of sexual offenses. Mitchell Mattingly, Counsel, represented the Board.
A motion was made and seconded to approve the following amendments: to amend the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to correct statutory citations. Without objection, and with agreement of the agency, the amendments were approved.
Boards and Commissions: Board of Accountancy
201 KAR 1:190. Computer based examination sections, applications, and procedures. Dick Carroll, Executive Director, represented the Board.
A motion was made and seconded to approve the following amendments: to amend Sections 1 to 7, 10, and 13 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Board of Nursing
201 KAR 20:070. Licensure by examination. Nathan Goldman, General Counsel, represented the Board.
201 KAR 20:095. Inactive nurse licensure status. In response to questions by Senator Roeding, Mr. Goldman stated that this amended administrative regulation required current refresher courses for inactive nurses returning to active status. The course had to be completed within two (2) years prior to the return. There were refresher courses in Richmond and Louisville and they varied in length. The amended administrative regulation should not discourage anyone from returning to the active practice of nursing.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1 and 3 to provide specific regulatory citations; and (2) to amend Sections 1 and 3 to comply with the drafting requirements of KRS Chapter 13A.
201 KAR 20:110. Licensure by endorsement. A motion was made and seconded to approve the following amendments: to amend Section 2 to make a technical correction. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 20:225. Reinstatement of license.
201 KAR 20:370. Applications for licensure and registration. In response to a question by Senator Roeding, Mr. Goldman stated that this amended administrative regulation required a nurse who was not a United States citizen to maintain rather than submit proof of INS status because another administrative regulation governed foreign nurses.
In response to a question by Co-Chair Thayer, Mr. Goldman stated that this amended administrative regulation would not discourage foreign nurses from practicing in Kentucky because the Board's requirements mirrored the federal requirements.
201 KAR 20:390. Nursing Incentive Scholarship Fund.
201 KAR 20:480. Licensure of graduate of foreign nursing schools. A motion was made and seconded to approve the following amendments: to amend Sections 1 and 2 to clarify the requirements for licensure. Without objection, and with agreement of the agency, the amendments were approved.
Board of Licensure for Occupational Therapy
201 KAR 28:010. Definitions and abbreviations. Nancy Black, and Julya Westfall, Board Chair, represented the Board.
A motion was made and seconded to approve the following amendments: to amend Section 1 to remove definitions that did not pertain to the entire chapter and to insert definitions that did apply to the entire chapter. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 28:020. General provisions. A motion was made and seconded to approve the following amendments: to amend Section 1 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 28:030. Short-term practice of occupational therapy for persons practicing under KRS 319A.090(1)(e). A motion was made and seconded to approve the following amendments: to amend Section 1 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 28:051. Repeal of 201 KAR 28:051.
201 KAR 28:060. Requirements for licensure.
201 KAR 28:070. Examination.
201 KAR 28:121. Repeal of 201 KAR 28:120.
201 KAR 28:130. Supervision of occupational therapy assistants, occupational therapy aides, occupational therapy aides, occupational therapy students, and temporary permit holders. A motion was made and seconded to approve the following amendments: to amend Sections 1, 2, and 4 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 28:140. Unprofessional conduct and code of ethics. A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct statutory citations; and (2) to amend Section 1 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 28:180. Temporary permits. A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to delete provisions that repeated or summarized statutory provisions; and (2) to amend Sections 3 to 7 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 28:200. Continuing competence. A motion was made and seconded to approve the following amendments: to amend Sections 1, 3, and 6 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Board of Respiratory Care
201 KAR 29:050. Continuing education requirements. Thomas Floro, Board Chair, represented the Board.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct statutory citations; and (2) to amend Sections 1, 2, 3, 5, and 9 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Tourism Development Cabinet: Department of Fish and Wildlife Resources: Fish
301 KAR 1:020. Snagging. Tom Bennett, Commissioner, and Ellen Benzing, Assistant Counsel, represented the Department.
301 KAR 1:201. Fishing limits. In response to questions by Co-Chair Thayer, Commissioner Bennett stated that this administrative regulation established a twelve (12) inch size limit for channel catfish to increase the quality of fish and their suitability for trophy fishing.
301 KAR 1:220. Reciprocal agreements regarding fishing. A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct statutory citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation; and (3) to amend Sections 1, 5, and 6 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
301 KAR 1:301. Repeal of 301 KAR 1:300 and 301 KAR 1:310.
Game
301 KAR 2:041. Shooting preserves and foxhound training enclosures. In response to questions by Senator Pendleton, Commissioner Bennett stated that this administrative regulation authorized the existing shooting preserves to renew their permits. Ms. Benzing added that Kentucky currently had two cervid shooting preserves.
301 KAR 2:082 & E. Transportation and holding of exotic wildlife. In response to a question by Senator Pendleton, Ms. Benzing stated that this administrative regulation only applied to the transportation of exotic wildlife so it did not apply to cervids.
301 KAR 2:144. Fall wild turkey hunting. In response to a question by Co-Chair Arnold, Commissioner Bennett stated that this administrative regulation permitted the hunting of wild turkeys with a bow.
Hunting and Fishing
301 KAR 3:030. Year-round season for some birds and animals. In response to questions by Senator Tapp, Commissioner Bennett stated that this administrative regulation defined starlings and English sparrows as animals that were unprotected in an effort to limit the problems they caused.
In response to questions by Representative Reinhardt, Commissioner Bennett stated that unprotected species such as coyote could be taken all year by hunters that were licensed. However, landowners were exempt from the licensing requirements if they were hunting on their own land.
Wildlife
301 KAR 4:100. Peabody Wildlife Management Area use requirements and restrictions.
Water Patrol
301 KAR 6:060. Safe boating certification.
Natural Resources and Environmental Protection Cabinet: Department for Environmental Protection: Division for Air Quality: Permits, Registrations, and Prohibitory Rules
401 KAR 52:080. Regulatory limit on potential to emit. Bob Logan, Commissioner, Lona Brewer, Branch Manager, and John Lyons, Director, represented the Department.
A motion was made and seconded to approve the following amendments: (1) to amend throughout to specify citations; (2) to amend Section 1 to create a "definition section," as required by KRS 13A.222(4)(e); (3) to amend Section 3 to delete superfluous language; (4) to amend Sections 5, 6, 8, 9, and 10 to specify requirements for record-keeping; and (5) to amend throughout to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Justice Cabinet: Department of Criminal Justice Training: Kentucky Law Enforcement Council
503 KAR 1:170. Career Development Program. Steve Lynn, Assistant General Counsel, Joe Boldt, Kentucky Law Enforcement Council (KLEC), and Margaret Johnson, Telecommunication Branch Instructor, represented the Department.
In response to a question by Senator Roeding, Ms. Johnson stated that a telecommunicator was a 911 dispatcher.
A motion was made and seconded to approve the following amendments: to amend Section 20 and the material incorporated by reference to update the required forms. Without objection, and with agreement of the agency, the amendments were approved.
General Training Provision
503 KAR 3:050 & E. Telecommunications Academy: graduation requirements; records. In response to a question by Co-Chair Thayer, Mr. Lynn stated that this amended administrative regulation resulted from House Bill 406 from the 2003 Session of the General Assembly.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to specify a statutory citation; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 3 and 7 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
503 KAR 3:070 & E. Telecommunications Academy (non-CJIS). A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 3 and 8 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Department of Juvenile Justice: Child Welfare
505 KAR 1:010. Definitions. Keith Horn, Assistant General Counsel, represented the Department.
In response to a question by Senator Roeding, Mr. Horn stated that the amendments to the grant program in 501 KAR 1:010, 050, 060, and 070 would not increase the cost of the program. The amendments merely conformed the administrative regulations to the statutory amendments from the 2003 Session of the General Assembly.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to replace "Juvenile Justice Advisory Committee" with "Juvenile Justice Advisory Board" in accordance with KRS 15A.065; and (2) to amend the Title and the NECESSITY, FUNCTION, AND CONFORMITY paragraph to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
505 KAR 1:050. Local juvenile delinquency prevention councils: formation procedure. A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to replace "Juvenile Justice Advisory Committee" with "Juvenile Justice Advisory Board" in accordance with KRS 15A.065; and (2) to amend the RELATES TO and the STATUTORY AUTHORITY paragraphs to correct statutory citations. Without objection, and with agreement of the agency, the amendments were approved.
505 KAR 1:060. Local juvenile delinquency prevention councils: operation and duties. A motion was made and seconded to approve the following amendments: (1) to amends the STATUTORY AUTHORITY paragraph to correct a statutory citation; and (2) to amend Section 2 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
505 KAR 1:070. Local juvenile delinquency prevention councils: Community Juvenile Justice Partnership Grant Program. A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct a statutory citation; (2) to amend Section 1(6) to replace "Juvenile Justice Advisory Committee" with "Juvenile Justice Advisory Board" in accordance with KRS 15A.065; and (3) to delete Section 1(10) as it was outdated. Without objection, and with agreement of the agency, the amendments were approved.
505 KAR 1:110. Department of Juvenile Justice Policies and Procedures Manual: program services. A motion was made and seconded to approve the following amendments: to amend the materials incorporated by reference to insert or correct statutory citations, for clarification and consistency, and to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
505 KAR 1:120. Department of Juvenile Justice Policies and Procedures Manual: health and safety services. A motion was made and seconded to approve the following amendments: to amend the materials incorporated by reference to insert statutory citations and for clarification and consistency. Without objection, and with agreement of the agency, the amendments were approved.
Education, Arts and Humanities Cabinet: Board of Education: Department of Education: Office of Learning Programs Development: Office of Learning Support Services
704 KAR 7:050. Student discipline guidelines. Kevin Noland represented the Department.
In response to a question by Co-Chair Thayer, Mr. Noland stated that this administrative regulation returned student discipline to local control and decision-making.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to insert authorizing language and to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Western Kentucky University: Board of Regents
770 KAR 1:070. Capital construction procedures. John Osborne, Associate Vice President for Campus Services and Facilities, represented the Board.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to clarify that the Board of Regents was electing to perform the functions relating to capital construction and delegating that responsibility to the president of Western Kentucky University; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Labor Cabinet: Department of Workers Claims
803 KAR 25:010 & E. Procedure for adjustments of claims. Carla Montgomery, Assistant General Counsel, represented the Department.
803 KAR 25:125 & E. Computation of attorney fee in award of retraining incentive benefits pursuant to KRS 342.732(1)(a) and interim attorney fee motions. A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct statutory citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220(3)(f); and (3) to amend Sections 1 and 2 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Public Protection and Regulation Cabinet: Department of Alcoholic Beverage Control: Advertising Distilled Spirits and Wine
804 KAR 1:131. Repeal of 804 KAR 1:130. Steven Horner, Commissioner, represented the Department.
Licensing
804 KAR 4:081. Repeal of 804 KAR 4:080, 804 KAR 4:090, 804 KAR 4:120, 804 KAR 4:245, 804 KAR 4:320.
Retail Premises
804 KAR 7:041. Repeal of 804 KAR 7:045.
Department of Insurance: Health Insurance Contracts
806 KAR 17:240. Data reporting requirements. Carrie Banahan, Division Director, and William Nold, Counsel, represented the Department.
Department of Financial Institutions: Check Cashing
808 KAR 9:040. Limitation on electronic fund transfers from customer accounts. David Reichert, Counsel, represented the Department.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to insert authorizing language; and (2) to amend Section 2 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Cabinet for Health Services: Department for Public Health: Health Services and Facilities
902 KAR 20:008. License procedures and fee schedule. Alex Reese, Office of Inspector General, represented the Department.
In response to a question by Senator Roeding, Mr. Reese stated that this amended administrative regulation did not establish any new fees. It included a fee that had been deleted from another administrative regulation, but the fee amount did not change.
In response to a question from Senator Pendleton, Mr. Reese stated that the fee schedule in this administrative regulation only applied to licensed health facilities and did not apply to health departments.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2 to require a substantial regulatory violation for the denial, suspension, or revocation of licenses as required by KRS 216B.105(2); and (2) to amend Sections 1, 2, and 13 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Office of Inspector General: Inspector General
906 KAR 1:140. Validation and complaint investigation procedures for deemed hospitals. In response to a question by Senator Roeding, Mr. Reese stated that that the hospitals were aware of the amendments to this administrative regulation. The Kentucky Hospital Association had been instrumental in drafting the amendments.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to establish a definition for "state licensure standard"; (2) to amend the complaint investigation procedures in Section 3 to: (a) require inspections upon complaint or upon becoming aware from another state agency or through the media of an alleged licensure standard violation; and (b) require that complaint investigations be unannounced; (3) to delete the procedures for addressing regulatory violations discovered during licensing validation or complaint investigation inspections in Sections 2 and 3 and to establish new procedures for addressing them in Section 4; and (5) to establish Section 4 creating new procedures for addressing violations of state licensure standards including: (a) an on-site inspection; (b) an exit conference by the inspectors; (c) written notice of any violations; (d) plans of correction by the hospital; (e) the loss of status as a deemed compliant hospital for a single violation of a state licensure standard of sufficient severity that the violation posed a substantial risk to patient care or safety, or for a substantial number of violations; and (f) the regaining of deemed status upon correction of any violations. Without objection, and with agreement of the agency, the amendments were approved.
Department for Medicaid Services: Medicaid Services
907 KAR 1:006 & E. Coverage of and payment for services for persons eligible for benefits under both Title XIX and Title XVIII. Marcia Morgan, Secretary, Mike Robinson, Commissioner, and Ellen Hesen, General Counsel and Deputy Secretary, represented the Cabinet.
A motion was made and seconded to approve the following amendments: to amend Section 3 to list the cross-referenced administrative regulations in numerical order for clarity. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 1:022 & E. Nursing facility and intermediate care facility for the mentally retarded and developmentally disabled level of care criteria. Carrie Morgeson, Advocates for Restoring Medicaid Services (ARMS); Anne Marie Regan, Attorney, Office of Kentucky Legal Services; Karen Hinkle, Director, Kentucky Home Health Association; Kelly Upchurch, President, Kentucky Association of Adult Day Centers; David Strohmeier, Eric Strohmeier, Jenny Miller, and Gladys Anderson appeared in opposition to this administrative regulation.
Secretary Morgan stated that the Department for Medicaid Services faced a 4.4 million dollar budget crisis. The shortfall would worsen if services utilization or the number of people eligible for services increased or if the proposed cost containment actions were not implemented or failed to generate the expected savings. This administrative regulation contained the new nursing facility level of care criteria that Governor Patton announced on January 16, 2003 as part of his 250 million dollar cost containment plan for the Medicaid budget. By eliminating personal care in nursing facilities and by restructuring the home and community based waiver, the Department expected to save 53 million dollars. These regulatory changes were necessary to ensure that the Department could continue to serve the most acutely ill or medically fragile individuals and that those individuals would continue to qualify for care in nursing facilities or the home and community based waiver.
Secretary Morgan stated that the regulatory changes required an individual to meet three (3) of nine (9) criteria to qualify for nursing facility level of care. Since the changes were implemented on April 4, 2003, there had been serious consequences. 192 individuals had been decertified from nursing facilities services and over 1,000 individuals had been decertified from the home and community based waiver. However, there were alternative services and programs available for those who had been decertified such as family care homes, personal care homes, adult daycare programs, state supplementation, supports for community living, and wraparound funding for the chronically mentally ill. Additionally, if any of those individuals appealed the decertification in a timely manner, the Department continued to pay for nursing facility coverage as the appeal was pending.
Secretary Morgan stated that of the 192 individuals decertified by the Department from the nursing facility level of care, only 126 of them appealed. Furthermore, 148 of those decertified could be eligible for state supplementation and could continue to receive Medicaid coverage. For those individuals, they would receive more appropriate care in a less restrictive environment for $4,027 annually, rather than receive a higher level of care than was medically necessary for $35,000 annually.
In response to questions by Representative Reinhardt, Secretary Morgan stated that since 2001, the Department had addressed the Medicaid budget crisis by implementing cost containment actions worth 419 million dollars. However, with the increased number of eligibles in 2003, the Department had to restructure the level of care program because they could not have balanced the Medicaid budget through further management actions alone. The Department had announced the restructuring in January 2003, which was during a regular session of the General Assembly. Senate Bill 167, which would have prevented this type of program restructuring, was not enacted. The restructuring had required four months to implement to allow the Department sufficient time to prepare itself and the provider and recipient communities.
The Department continued to cover the services for individuals who were appealing their decertification if the notice of appeal was filed within ten (10) days. The Department could not extend the ten (10) day period without losing federal fund participation. The Department had worked extensively with the provider community so that the recipients would know about the ten (10) day notice requirement. Most appeals had been filed in a timely manner. Ms. Hesen added that most denial letters contained information about the ten (10) day notice requirement. Additionally, only the notice of appeal and not the hearing itself was required within the ten (10) days. Once the notice was received, a hearing officer scheduled the appeal for a conference at a mutually convenient time and place.
In response to questions by Senator Tapp, Secretary Morgan stated that since she became Cabinet Secretary in 2001, they had focused on cost containment measures. Restructuring this program was the least modification they could do that would generate savings of 53 million dollars. Because the Medicaid program had increased fifty-six (56) percent in the past six (6) years to a total of 665,000 recipients, or almost twenty (20) percent of Kentucky's population, drastic savings had to be generated. The real issue was not this administrative regulation but what could and what would Kentucky pay for Medicaid services. This administrative regulation was merely the beginning of Medicaid restructuring under the current budget.
The Department had considered utilizing direct payments to providers via electronic fund transfers as a potential cost containment measure. However, there would be a significant cost to the Department and the provider community to implement that system. The Department also had considered assigning recipients to an individual pharmacy as a cost containment measure. The Department had not instituted that change because of the substantial prior cost containment measures imposed on the pharmacies such as the co-payments and preferred drug list. The Department did not want to overburden the pharmacy providers to such an extent that it destroyed the provider community. Lastly, the Department had considered charging copayments for non-emergency transportation but was concerned about how it would practically be accomplished and about its effect on the fragile empower transportation network.
Senator Tapp stated that all cost containment measures needed to be explored. The providers, legislators, and families of recipients all needed to come together to find a solution to the Medicaid financial crisis. Additionally, he requested that Secretary Morgan furnish him a list of all of the providers who the Cabinet contacted about cost containment options and this administrative regulation. Secretary Morgan agreed to do so.
In response to questions from Co-Chair Thayer, Secretary Morgan stated that out of 665,000 Medicaid recipients, this administrative regulation would affect approximately 400 people throughout the year. For the forty-three individuals who had been decertified so far and who were not eligible for other Medicaid services, they had an average income of $17,100 annually.
In response to a question by Representative Lee, Secretary Morgan stated that she and the Cabinet were committed to assisting those who had been decertified in finding appropriate alternative placements or services.
Representative Lee stated that he thought it was reprehensible that the Subcommittee was even discussing taking away services from needy individuals. The General Assembly had not taken advantage of numerous opportunities to adequately fund the aging services programs. The Subcommittee should blame the General Assembly for underfunding the human services programs rather than the Cabinet for this administrative regulation. The General Assembly had to decide whether to serve the Medicaid population or not. They had to decide what services were adequate and appropriate and what sorts of funding was necessary to provide them.
Co-Chair Thayer stated that he thought there was plenty of blame to go around for the Medicaid budget crisis. He did not want to turn the Subcommittee meeting into a political forum, but he felt it was important to answer any comments blaming the Medicaid shortfall in its entirety on the General Assembly. There was plenty of blame to be laid at the feet of the current governor due to the wasteful spending of the executive branch during the past eight years.
In response to questions by Co-Chair Arnold, Secretary Morgan stated that most states provided Medicaid coverage to between fifteen (15) and twenty (20) percent of their population. Kentucky's coverage of twenty (20) percent of the population was quite high.
Co-Chair Arnold stated that this administrative regulation affected about .03 percent of Kentucky's Medicaid population which was very low. He thanked the Secretary and the Cabinet for their work in trying to help the people of Kentucky by keeping the Medicaid system solvent.
In response to a question by Co-Chair Thayer, Secretary Morgan stated that if this administrative regulation and its savings were not implemented, the other 664,600 Medicaid recipients would be facing prescription and office visit caps and a crumbling provider network.
Ms. Morgeson stated that Advocates for Restoring Medicaid Services (ARMS) had several concerns regarding this administrative regulation: (1) A person may not qualify as "medically needy" yet still need long-term care services. (2) The availability of alternative services for those decertified was overstated. Most personal care homes would not accept individuals with medical needs and many community services had extensive waiting lists. (3) The true number of those affected by this administrative regulation had been minimized because over 1,800 individuals had been decertified from home and community based waiver services. They would not qualify for respite services and would face sliding scale fees and waiting lists for community based services from area development districts. (4) The recertification process was very inadequate. Much of it was based on a paper review process rather than in-person meetings with the individual and the paper review created discrepancies. It also prohibited the consideration of extenuating circumstances beyond the nine criteria. Notices of decertification were insufficient and often not mailed to the providers or those with power of attorney for the decertified individuals.
Ms. Regan stated that the Kentucky Legal Services Programs also had several concerns with this administrative regulation: (1) Those being decertified had all previously qualified for nursing facility level of care at home or at a facility. They were now being decertified because of budgetary limitations rather than improvements in their medical condition. (2) Federal Medicaid law required reasonable state criteria for eligibility based on whether the services were medically necessary rather than what services were economically feasible. (3) This administrative regulation was too rigid as it prohibited sufficient medical review and consideration of an individual's condition. In many cases, there had not been a physician review of the decertification. (4) Restructuring the level of care criteria significantly impacted the less expensive home and community based waiver services because federal law required their eligibility criteria to be the same. Over 1,800 individuals had been denied home and community based waivers due to the restructuring. (5) Because the expected 45 million dollars of savings included seventy percent matching federal funds, the restructuring saved Kentucky only 13.5 million dollars of state funds and lost 31.5 million dollars of federal funds.
In response to a question by Co-Chair Thayer, Ms. Regan stated that the Kentucky Legal Services Program was representing several of the individuals who were appealing their decertifications.
Ms. Hinkle stated that the Kentucky Home Health Association was concerned about the effect of this administrative regulation on those receiving home and community based waiver services. Since its implementation, almost 2,000 individuals, or about twelve (12) percent of the home and community recipients, had been denied that level of care. That reduction was problematic because those services were so much more affordable than nursing facility services, $4,500 in comparison to $35,000 annually, and because they served as a safety net to keep those individuals at home and out of nursing facilities. Additionally, the Association was concerned about how the administrative regulation defined who was eligible for long-term care services. By utilizing the medically needy standard for nursing facility care and for home and community based waiver care, it denied services to those needing persistent assistance with daily activities such as dressing, bathing, feeding, or toileting.
Mr. Upchurch stated that the Kentucky Association of Adult Day Centers wanted to emphasize a particular harmful consequence of this administrative regulation, the erosion and eventual destruction of the adult day health care provider network. It had taken Kentucky over twenty years to develop an adult day health provider network. The network financially relied on home and community based waiver in addition to private pay. Because this administrative regulation so significantly reduced the number of eligible recipients for home and community based waiver, the network would no longer be financially viable. Without adult day health care, there would not be an alternative to nursing facility care. Additionally, because the eligibility criteria were the same, an individual denied nursing facility care would also be denied adult day health care.
Ms. Hinkle stated that if a social model of adult day care was established as an alternative to the medical model of adult day care, home health could provide any necessary medical services to those individuals.
Mr. Strohmeier stated that he wanted to put on a personal basis the negative effects of this administrative regulation. He was seventy-one and his wife was sixty-seven. They had a forty-one year old son, Eric, who was non-verbal and subject to seizures due to a metabolic disorder from infancy. Because the physical demands of caring for Eric were so great, they would have had to place him in a nursing facility if not for receiving adult day care services through Medicaid. Eric's participation in the Frankfort Active Day Care Center produced many benefits. It changed Eric's outlook because he had something to look forward to each morning. It enabled Eric to remain at home so that he and his family could enjoy each other's company, and so that he could attend and participate at church and interact with those at his family's campground. Additionally, it was much less expensive than nursing facility care at sixty-three (63) dollars a day rather than $140 to $160 dollars a day. Unfortunately, Eric recently received notice that he had been decertified from receiving those services due to this administrative regulation. He was decertified even though he met all nine of the eligibility criteria. Eric and his family did not know anything about the recertification process and did not have an opportunity to provide any medical or other relevant information to the reviewers. The family's financial situation prevented them from continuing Eric's participation at the adult day care center. It was important to families with members receiving home and community services that those services not be deleted. It would mean a whole lot to each family for those services to continue.
Ms. Miller stated that she was with Ms. Anderson who attended the Almost Family Day Center in Lexington. Ms. Anderson had been decertified from receiving home and community based waiver services and wanted to talk to the Subcommittee about the effect of this administrative regulation on a personal basis. Ms. Anderson stated that she had several medical conditions such as emphysema, a blood disorder, poor circulation, and blindness in one eye. She was on oxygen eighteen (18) hours a day. Her only social outlet was attending the day center. Attending the center had turned her life around because it provided her with opportunities to be with other people and to participate in Bible study. She was appealing her decertification.
In response to a question by Representative Reinhardt, Secretary Morgan stated that adult day health care enriched and improved the participants' quality of life and status. The Cabinet had not conducted a formal study, but she estimated that it delayed those individuals' entrance into nursing facilities in about fifty (50) percent of the cases.
Secretary Morgan stated that she wanted to thank the Subcommittee. Promulgating this administrative regulation had been the toughest decision for her. The Cabinet was responsible for managing the Medicaid program and this administrative regulation was the best method to do that, even with its harsh and heartbreaking consequences. The Cabinet would continue its efforts to improve the implementation of this administrative regulation.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 2, 4, 7, 8, and 10 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 1:060 & E. Ambulance transportation. A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to clarify the definition of “attending physician”; and (2) to amend Sections 1, 3, 4, and 5 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 1:160 & E. Home and community based waiver services. A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to correct statutory citations; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 2, 3, and 5 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 1:170 & E. Reimbursement for home and community based waiver services. A motion was made and seconded to approve the following amendments: (1) to amend Section 4 to correct cross-references; and (2) to amend Sections 2, 8, and 10 to correct punctuation. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 1:340. Reimbursement for hospice services. A motion was made and seconded to approve the following amendments: to amend Sections 3 and 8 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 1:360 & E. Preventive and remedial public health services. A motion was made and seconded to approve the following amendments: to amend Sections 1, 2, and 5 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Cabinet for Families and Children: Department for Community Based Services: Family Support: K-TAP, Kentucky Works, Welfare to Work, State Supplementation
921 KAR 2:491. Repeal of 921 KAR 2:490. Karen Doyle and Rosanne Barkley represented the Department.
Food Stamp Program
921 KAR 3:045. Issuance procedures. A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
The Subcommittee and the promulgating administrative agencies agreed to defer consideration of the following administrative regulations to the next meeting of the Subcommittee:
Attorney General's Office: Department of Law: Division of Consumer Protection
40 KAR 2:161. Repeal of 40 KAR 2:160, 40 KAR 2:170, 40 KAR 2:180, 40 KAR 2:190 and 40 KAR 2:260.
Kentucky Employees' Retirement Systems: General Rules
105 KAR 1:380E. Minimum distribution.
General Boards and Commissions: Board of Optometric Examiners
201 KAR 5:010. Application for licensure; endorsement. Connie Calvert, Director, represented the Board.
Ms. Calvert stated that the Board wanted to defer the Subcommittee's consideration of this administrative regulation. Without objection, this administrative regulation was deferred.
Board of Dentistry
201 KAR 8:490. Expungement of records. Gary Munsie, Director, represented the Board.
Co-Chair Arnold made a motion to defer consideration of this administrative regulation. Without objection, and with the agreement of the agency, this administrative regulation was deferred.
Kentucky Board of Emergency Medical Services: Board
202 KAR 7:462. Repeal of 202 KAR 7:461. Pursuant to KRS 13A.290(4), this administrative regulation was deferred.
Justice Cabinet: Department of State Police: Driver Training
502 KAR 10:100. Operator's license skill testing.
502 KAR 10:110. Commercial driver's license skill testing.
Department of Criminal Justice Training: Kentucky Law Enforcement Council
503 KAR 1:160E. Department of Criminal Justice Training - Kentucky Police Corps basic training: graduation requirements; records.
Public Protection and Regulation Cabinet: Department of Insurance: Health Insurance Contracts
806 KAR 17:180 & E. Standard health benefit plan and comparison format.
Kentucky Racing Commission: Thoroughbred Racing
810 KAR 1:027E. Entries, subscriptions, and declarations.
Department of Housing, Buildings and Construction: Electrical Inspectors
815 KAR 35:040 & E. Licensing of electrical contractors, electricians, and master electricians.
Cabinet for Health Services: Department for Public Health: Food and Cosmetics
902 KAR 45:065E. Tattooing.
902 KAR 45:070. Body piercing.
Department for Medicaid Services: Medicaid Services
907 KAR 1:604 & E. Recipient cost-sharing. Marcia Morgan, Secretary, Mike Robinson, Commissioner, and Ellen Hesen, General Counsel, represented the Department. Charlie Heck, President, Kentucky Optometric Association, appeared in opposition to this administrative regulation.
Mr. Heck stated that the Kentucky Optometric Association was opposed to this administrative regulation in its present form because the Medicaid copayments were not fair or lawful. The Association was not generally opposed to collecting Medicaid copayments. However, this administrative regulation imposed Medicaid copayments based on whether optometrists or opthamologists provided the service. Optometrists were required to collect a two (2) dollar fee for any service they provided to a Medicaid recipient. Opthamologists only collected the copayment if they billed for the service with certain opthalmic examination codes. This was unfair and violated the parity requirement for optometrists and opthamologists established by KRS 205.560(1)(e). This administrative regulation was a departure from Kentucky's previous practice of focusing on the service provided rather than the service provider type. The Association proposed that this administrative regulation be amended to require optometrists to collect the copayments on the same codes that the opthamologists used. Parity would be achieved and Medicaid recipients choosing optometric care would not be penalized. The effect of the current administrative regulation was particularly harsh on rural areas because those areas were predominantly served by optometrists.
In response to questions by Co-Chair Thayer, Secretary Morgan stated that the Cabinet was willing to defer consideration of this administrative regulation and to attempt to resolve any concerns of the Kentucky Optometric Association. However, the Cabinet was concerned about their ability to reach a resolution for several reasons: (1) The Cabinet had already made other concessions to the Association. (2) Optometric services were optional under federal Medicaid law and some states had chosen to eliminate them. (3) This administrative regulation imposed a copayment on the four most commonly used billing codes by opthamologists and optometrists. (4) The Cabinet did not want to discourage opthamologists from participating in the Medicaid program because they provided services that optometrists could not.
Senator Pendleton made a motion to defer consideration of this administrative regulation. Without objection, and with the agreement of the agency, this administrative regulation was deferred.
907 KAR 1:655E. Spousal impoverishment and nursing facility requirements for Medicaid.
Payments and Services
907 KAR 3:110 & E. Community mental health center substance abuse services.
The Subcommittee adjourned at 1:20 p.m. until October 14, 2003, at 10:30 a.m., in Room 149 of the Capitol Annex.