The February meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, February 10, 2004, at 9:30 AM, in Room 125 of the Capitol Annex. Representative Tanya Pullin, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Damon Thayer, Co-Chair; Representative Tanya Pullin, Co-Chair; Senators Joey Pendleton, Richard Roeding, and Gary Tapp; Representatives James Bruce, Jimmie Lee, and Jon David Reinhardt.
Guests: Diana Barber, Michael Morgan, Kentucky Higher Education Assistance Authority; Kevin C. Brown, Belinda Casey Daniel Logsdon, Brenda Sweatt, Department of Treasury; Trey Greyson, Ryan Halloran, Sarah B. Johnson, State Board of Elections; Bill Leach, Teacher's Retirement System; Ron Gruzesky, Bob Logan, Larry Taylor, Department for Environmental Protection; Keith Horn, Department of Juvenile Justice; Tim Adams, Mack Bushart, Steve Coffey, Dana Fugazzi, Lt. Glynn C. Powers, Ricky Taylor, Transportation Cabinet; Rick Bender, Public Protection and Regulation Cabinet; David Coyle, Sally Mooney, Department of Financial Institutions; Roseanne Barkley, Sheila Davis, Shirley Eldridge, Russ Fendley, Lynne Flynn, David Hanna, Debbie Salleng, Ben Sweger, Cabinet for Health and Family Services; Rusty Cress, AIK; William G. Barr III, John P. Gabbard, Kentucky Oil and Gas Association.
LRC Staff: Dave Nicholas, Donna Little, Donna Kemper, Sarah Amburgey, Karen Howard, Laura Milam, Ellen Steinberg, Emily Caudill, and Jenifer Harrison.
Administrative regulations reviewed by the Subcommittee:
Kentucky Higher Education Assistance Authority: KHEAA Grant Programs
11 KAR 5:034. CAP grant student eligibility. Diana Barber, Assistant General Counsel, and Michael Morgan, Student Branch Manager, represented the Authority.
11 KAR 5:130. Student application.
Teacher Scholarship Loan Program
11 KAR 8:030. Teacher scholarships.
Early Childhood Development Scholarship Program
11 KAR 16:010. Early Childhood Development Scholarship Program applicant selection process. A motion was made and seconded to approve the following amendments: to amend Section 1 to comply with the format and drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Robert C. Byrd Honors Scholarship Program
11 KAR 18:010. Robert C. Byrd Honors Scholarship Program. In response to questions by Senator Roeding, Mr. Morgan stated that the Authority began advertising the Robert C. Byrd Honors Scholarship Program in November after administrative responsibility for the program was transferred to them from the Kentucky Department of Education. The Authority had mailed out scholarship applications to students and had mailed out scholarship requirements and applications to all certified high school counselors, including those in private schools. They also had updated their web site and publications with information about the program. The number of scholarship recipients was limited by the amount of federal appropriations for the program.
In response to questions by Representative Reinhardt, Mr. Morgan stated that the Authority's official administration of the program did not begin until the upcoming fiscal year. Additionally, he was aware of only one other scholarship currently being administered by the Kentucky Department of Education, the Minority Education and Recruitment Retention Scholarship. The Authority would begin to administer that scholarship in 2006.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to correct statutory citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 to 5, 7, 8, and 9 to comply with the format and drafting requirements of KRS Chapter 13A; and (3) to amend Section 9 to incorporate by reference the separate application form for GED recipients. Without objection, and with agreement of the agency, the amendments were approved.
Department of Treasury; State Treasury
20 KAR 1:040. Unclaimed properties; claims. Daniel Logsdon, Assistant State Treasurer, Brenda Sweatt, Director of Unclaimed Property, and Kevin Brown, Assistant Attorney General, represented the Department.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs 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 2, 3, and 5 to comply with the format and drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
20 KAR 1:080. Reports to be filed by holders of unclaimed property. 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, 2, and 3 to comply with the format and drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
20 KAR 1:090. Accounts for unclaimed property that was held in an interest-bearing demand, savings or time deposit. A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation; and (2) to amend Sections 1, 2, and 3 to comply with the format and drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
20 KAR 1:100. Multiple claims on the Unclaimed Property Fund. A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs 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; (3) to amend Sections 1, 2, and 3 to comply with the format and drafting requirements of KRS Chapter 13A; and (4) to create a new Section 4 to incorporate by reference required material. Without objection, and with agreement of the agency, the amendments were approved.
State Board of Elections; Help America Vote Act 2002
31 KAR 6:020 & E. Provisional voting. Trey Greyson, Secretary of State and Board Chair, Sarah Johnson, Executive Director, and Ryan Halloran, Assistant Attorney General, represented the Board.
In response to questions by Co-Chair Thayer, Secretary Greyson stated that the Help America Vote Act 2002 required states to provide a voter an opportunity to cast a vote in federal elections even if there were questions about that voter's eligibility status. This administrative regulation established a provisional ballot to provide that opportunity. A voter would fill out a paper ballot which would be sealed and separated from all other ballots. After the polls closed and before 9 a.m. the next morning, the clerks would begin to determine whether that particular vote should be counted. For example, if it was determined that a poll worker had made a mistake about a voter's registration, that provisional ballot would be counted. The voter was entitled to know whether the vote in fact was counted.
In response to a question by Representative Bruce, Ms. Johnson stated that complying with the Act's requirements, including the opportunity to vote, enabled Kentucky to qualify for about forty (40) million dollars in federal funds.
In response to questions by Senator Roeding, Ms. Johnson stated that allowing provisional ballots would slow down the official election counts. The clerks had to begin reviewing the ballots by 9 a.m. the next morning, but could begin reviewing them earlier. Secretary Greyson added that in practice, the slower official count would not burden a candidate. By comparing the vote margin with the number of provisional ballots, a candidate could determine whether the ballots made a difference in an election's outcome.
In response to a question by Senator Roeding, Secretary Greyson stated that provisional ballots would be used for the first time in the upcoming special election in the sixth congressional district. The Board had provided training to the affected county clerks about the ballots and the clerks had incorporated that information in their precinct officer training.
In response to a question by Representative Reinhardt, Ms. Johnson stated that some other states like Colorado and California previously had implemented versions of provisional balloting. However, no other states had implemented the exact requirements of the Act.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to insert authorizing language, specify citations, and clearly state the function of the administrative regulation; (2) to amend Section 1 to place the definitions in the first section and in alphabetical order, pursuant to KRS 13A.222(4)(e); (3) to amend Section 4 to add "identification type" and "precinct officer initials" to the items required on the Provisional Ballot Precinct Signature Roster; (4) to amend Section 4 to delete indefinite words or phrases as prohibited by KRS 13A.222(4)(a); and (5) to amend various sections to comply with the format and drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Teacher's Retirement System; General Rules
102 KAR 1:035. Employment by retired members. Bill Leach represented the System.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 1 to comply with the format and drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
102 KAR 1:150. Optional benefits. A motion was made and seconded to approve the following amendments: to amend various sections to comply with the format and drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Environmental and Public Protection Cabinet; Department for Environmental Protection; Solid Waste Facilities
401 KAR 47:030. Environmental performance standards. Larry Taylor, Commissioner's Office, Bob Logan, Commissioner's Office, and Ron Gruzesky, Division of Solid Waste, represented the Department.
In response to a question by Co-Chair Thayer, Mr. Gruzesky stated that the Department had amended the administrative regulation in response to industry concerns.
In response to a question by Co-Chair Thayer, Mr. Logan stated that this administrative regulation updated ten (10) parameters in the drinking water program with the current federal requirements, with six (6) becoming less conservative and four (4) becoming more conservative.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to insert authorizing language; (2) to amend Sections 3 and 4 to specify citations; (3) to amend Section 11 to specify techniques for avoiding fire hazards; and (4) to amend various sections to comply with the format and drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Environmental Protection
401 KAR 100:030. Remediation requirements. Rusty Cress, Associated Industries of Kentucky, appeared in favor of this administrative regulation.
Mr. Cress stated that it had been a long process to develop remediation standards. This administrative regulation met the goals and purposes of Senate Bill 2 as it was passed by the General Assembly in 2001. The Associated Industries of Kentucky supported this administrative regulation because it promoted voluntary cleanup of brownfields throughout the state by establishing strict but very flexible remediation requirements. He commended the Cabinet for their effective, negotiated rulemaking process in developing the standards.
Senator Pendleton stated that he appreciated all of the interested groups coming together to develop these standards. However, it should not have taken three (3) years to do so. In the future, the General Assembly should provide agencies with a deadline to promulgate administrative regulations so that it would be done in a more timely manner.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to specify citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to insert authorizing language; and (3) to amend various sections to comply with the format and drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Justice Cabinet, Department of Juvenile Justice, Child Welfare
505 KAR 1:110. Department of Juvenile Justice Policies and Procedures Manual: program services. Keith Horn, Assistant General Counsel, represented the Department.
In response to questions by Senator Roeding, Subcommittee staff stated that that if these administrative regulations contained state agency references that needed to be updated due to EO 2003-064, the Regulations Compiler could do so as a clerical matter pursuant to KRS Chapter 13A.
505 KAR 1:130. Department of Juvenile Justice Policies and Procedures Manual: juvenile services in community. A motion was made and seconded to approve the following amendments: to amend material incorporated by reference to specify statutory references and to comply with the format and drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
505 KAR 1:140. Department of Juvenile Justice Policies and Procedures Manual: detention services. A motion was made and seconded to approve the following amendments: to amend material incorporated by reference to specify statutory and internal references and to comply with the format and drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Transportation Cabinet: Department of Vehicle Regulation; Division of Motor Carriers
601 KAR 1:005. Safety administrative regulation. Lt. Glynn Powers, Kentucky Vehicle Enforcement, Dana Fugazzi, Staff Attorney, Steve Coffey, Assistant Director, Rick Taylor, Assistant Director, and Tim Adams, Branch Manager, represented the Department.
A motion was made and seconded to approve the following amendments: to amend Sections 1 to 3 and 6 to 11 to comply with the format and drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Motor Vehicle Tax
601 KAR 9:135. Apportioned registration. In response to a question by Representative Bruce, Mr. Taylor stated that the General Assembly established the twenty (20) dollar registration fee in 2003 to offset their repeal of the six (6) percent usage tax on vehicles registered over 44,000 pounds.
In response to a question by Senator Roeding, Mr. Taylor stated that the registration fees were paid to the county clerks in place of the usage tax.
In response to a question by Representative Reinhardt, Mr. Taylor stated that this administrative regulation would decrease costs for commercial motor vehicles.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 2, 6, 7, 8, 10, 11, 14, 15, and 16 to comply with the format and drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Commercial Driver's License
601 KAR 11:040. Medical waivers for intrastate operations of commercial motor vehicles. In response to questions by Senator Roeding, Mr. Coffey stated that because this administrative regulation was amended to correct a mistake, it would not affect any current commercial drivers. The Department had realized that the word "not" was no longer in the provision regarding whether they could grant waivers for the hearing requirement. The amendments re-included it so that the Department could not grant the waivers. A person who was deaf would not be able to obtain a commercial driver's license.
In response to questions by Representative Reinhardt, Mr. Coffey stated that other than correcting the mistake, all of the other regulatory requirements remained the same. A person who had correctable hearing loss would not be affected by the amendment.
In response to questions by Co-Chair Pullin, Mr. Coffey stated that because the Department had not been aware of the mistake, they had operated as if the word "not" had remained in the provision at issue. However, the Department had never granted a hearing waiver.
601 KAR 11:061. Repeal of 601 KAR 11:060.
Driver's License
601 KAR 12:031. Repeal of 601 KAR 12:030.
Environmental and Public Protection Cabinet; Department of Mines and Minerals
805 KAR 1:190. Gathering lines. Rick Bender, Director, represented the Department. William Barr, Legislative Chairman, Kentucky Oil and Gas Association, appeared in favor of this administrative regulation.
Mr. Barr stated that the Kentucky Oil and Gas Association commended the Division of Oil and Gas for working with all interested parties in promulgating this administrative regulation. The Association agreed to the permitting fees established by this administrative regulation because they hoped it would facilitate the permitting process. They hoped that even with the hiring freeze in state government employment, the fees would provide for sufficient staff so that permits could be issued more quickly.
A motion was made and seconded to approve the following amendments: to amend various sections to comply with the format and drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Department of Financial Institutions; Mortgage Loan Companies and Mortgage Loan Brokers
808 KAR 12:002. Definitions for 808 KAR Chapter 12. David Coyle, Director, and Sally Mooney, Counsel, represented the Department.
808 KAR 12:075. Requirements of mortgage broker residence office. In response to a question by Representative Bruce, Mr. Coyle stated that legislation from the 2003 General Session required out-of-state brokers to have a physical location in Kentucky.
A motion was made and seconded to approve the following amendments: to amend Section 1 to comply with the format and drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
808 KAR 12:085. Registration of mortgage loan officer/broker. A motion was made and seconded to approve the following amendments: to amend the RELATES TO paragraph to correct statutory citations. Without objection, and with agreement of the agency, the amendments were approved.
808 KAR 12:095. Continuing education requirements.
Cabinet for Health and Family Services; Department for Medicaid Services; Medicaid Services
907 KAR 1:035. Payments for early and periodic screening, diagnosis, and treatment services and early periodic screening, diagnosis, and treatment special services. Russ Fendley, Commissioner, David Hanna, Director, Ben Sweger, Director, and Lynne Flynn, Director, represented the Department.
In response to questions by Senator Roeding, Ms. Flynn stated that this administrative regulation was amended to base the payments on provider program payments rather than on local codes which were not allowed under the Health Insurance Portability and Accountability Act (HIPAA). The amendments were not for cost containment.
In response to questions by Representative Reinhardt, Ms. Flynn stated that the amendments to this administrative regulation would not generate additional costs.
In response to a question by Representative Bruce, Mr. Fendley stated that the Department would be bringing forward in the coming weeks their legislative and regulatory plans to modernize Medicaid and establish additional controls in the system.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 and 5 to comply with the format and drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 1:065 & E. Payments for price-based nursing facility services. In response to a question by Senator Roeding, Mr. Sweger stated that this administrative regulation was amended to replace cost-based reimbursement for nursing facility services with price-based reimbursement.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 4, 6, 11, 12, and 13 to comply with the format and drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Payments and Services
907 KAR 3:090 & E. Acquired brain injury services. A motion was made and seconded to approve the following amendments: (1) 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); (2) to amend Section 6 to delete reporting requirements for Class II incidents that were not consistent with reporting requirements for Class III incidents; and (3) to amend Sections 1 to 7 and 9 to comply with the format and drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 3:170 & E. Telehealth services and reimbursement. A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO 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 to 5 and 8 to comply with the format and drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Department for Community Based Services; Family Support; K-Tap, Kentucky Works, Welfare to Work, State Supplementation
921 KAR 2:015 & E. Supplemental programs for persons who are aged, blind, or have a disability. Shirley Eldridge and Roseanne Barkley, Branch Manager, represented the Department.
In response to a question by Co-Chair Thayer, Ms. Eldridge stated that this administrative regulation was amended to pass along the increase in Supplemental Security Income and to update the standard for personal care homes, family care homes, and caretaker services.
In response to a question by Senator Roeding, Ms. Barkley stated that this administrative regulation had been amended to reflect the Cabinet for Health and Family Services, established by EO 2003-064.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to reference EO 2003-064 which established the Cabinet for Health and Family Services; (2) to amend Section 1 to delete outdated definitions; (3) to amend Section 4(3) to require notification of a local county department office within five (5) working days of the death of a state supplementation recipient; and (4) to amend Sections 1, 2, 4, 12, 13, and 14 to comply with the format and drafting 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:
State Board of Elections; Help America Vote Act 2002
31 KAR 6:010 & E. State-based administrative complaint procedure.
Environmental and Public Protection Cabinet; Department for Environmental Protection; Water Quality
401 KAR 5:002. Definitions for 401 KAR Chapter 5.
401 KAR 5:005. Permits to construct, modify, or operate a facility.
401 KAR 5:026. Designation of uses of surface waters.
401 KAR 5:029. General provisions.
401 KAR 5:030. Antidegradation policy implementation method-ology.
401 KAR 5:031. Surface water standards.
Department for Surface Mining Reclamation and Enforcement; General Provisions
405 KAR 7:001. Definitions for 405 KAR Chapter 7.
Permits
405 KAR 8:001. Definitions for 405 KAR Chapter 8.
Bond and Insurance Requirements
405 KAR 10:001. Definitions for 405 KAR Chapter 10.
Inspection and Enforcement
405 KAR 12:001. Definitions for 405 KAR Chapter 12.
Performance Standards for Surface Mining Activities
405 KAR 16:001. Definitions for 405 KAR Chapter 16.
Performance Standards for Underground Mining Activities
405 KAR 18:001. Definitions for 405 KAR Chapter 18.
Special Performance Standards
405 KAR 20:001. Definitions for 405 KAR Chapter 20.
Areas Unsuitable for Mining
405 KAR 24:001. Definitions for 405 KAR Chapter 24.
Transportation Cabinet; Department of Vehicle Regulation; Division of Motor Carriers
601 KAR 1:018. Special overweight or overdimensional permits.
Motor Vehicle Tax
601 KAR 9:085. Procedures for becoming a certified motor vehicle inspector.
Department of Highways; Traffic
603 KAR 5:066. Weight (mass) limits for trucks.
603 KAR 5:070. Motor vehicle dimension limits.
Motor Vehicle Commission; Commission
605 KAR 1:040. Temporary off-site sale or display event.
Environmental and Public Protection Cabinet; Department of Financial Institutions; Mortgage Loan Companies and Mortgage Loan Brokers
808 KAR 12:065. Disclosure for lender/broker making less than five (5) loans per year. David Coyle, Director, and Sally Mooney, Counsel, represented the Department.
In response to questions by Senator Roeding, Mr. Coyle stated that by statute, disclosure was required for any business or individual making less than five (5) mortgage loans per year. This administrative regulation established the form to be used when making the required disclosure. Typically, the disclosure requirements applied to individuals making mortgages out of their own money and out-of-state mortgage companies that made only one or two loans a year in Kentucky. The disclosure requirements did not apply to parents loaning their children money for a down payment on a house. However, they would apply to parents providing a mortgage to their children. The Department used the disclosures in monitoring consumer complaints.
In response to a question by Senator Tapp, Ms. Mooney stated that if a parent provided a mortgage to a child and failed to make the required disclosure, the Executive Director had discretion in assessing or waiving a fine as a penalty.
Senator Tapp stated that he had concerns about how the disclosure requirements affected parents.
Co-Chair Thayer stated the Subcommittee needed to consider this issue further. There should not be any laws which penalized a family member making a loan to another family member.
Mr. Coyle stated that the disclosure at issue had been required by statute for several years. The statutes were amended by the 2003 General Assembly to require that the disclosure be made on a form developed by the Department. This administrative regulation established that form.
Representative Bruce made a motion, seconded by Senator Roeding, to find 808 KAR 12:065 deficient. Representative Bruce withdrew that motion and made a motion, seconded by Senator Tapp, to defer consideration of this administrative regulation instead. Co-Chair Pullin stated that deferral would enable the Subcommittee to more closely examine this administrative regulation. Without objection, and with agreement of the agency, this administrative regulation was deferred.
Department of Charitable Gaming; Charitable Gaming
820 KAR 1:001. Definitions for 820 KAR Chapter 1.
820 KAR 1:040. Bingo standards.
Cabinet for Health and Family Services; Department for Community Based Services; Protection and Permanency; Child Welfare
922 KAR 1:320. Services appeals.
922 KAR 1:330. Child protective services.
922 KAR 1:480. Appeal of child abuse and neglect investigative findings.
The Subcommittee adjourned at 10:35 a.m. until March 2004.