The September meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, September 14, 2004, 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 Tanya Pullin, Co-Chair; Senators Joey Pendleton, Richard Roeding, and Gary Tapp; Representatives Jimmie Lee and Jon David Reinhardt.
Guests: John Steffen, Executive Branch Ethics Commission; Richard Casey, Jo Carole Ellis, Kentucky Affordable Prepaid Tuition; William P. Hanes, Gerri Miller, Shawn C. Sparks, Eric Wampler, Kentucky Retirement Systems; Mike Burnside, Donna Hall, Angela Robinson, Ed Ross, Finance and Administration Cabinet; Mark Brengelman, Jennifer Franklin, John Parrish, Board of Licensure for Occupational Therapy; Mark Brengelman, Larry Disney, Real Estate Appraisers Board; Edward "Rusty" Ford, Mark Farrow, Department of Agriculture; Rick Kurtz, Karen Quinn, Justice and Public Safety Cabinet; Lee Barnard, Vicky Horn, Ken Howard, Betsy Johnson, Jill Mitchell, Brenda Parker, Gary Smith, Office of Insurance; Frank Dempsey, Office of Housing, Buildings, and Construction; Steven Davis, Jennifer Mitchell, Robin Rowe, Office of the Inspector General; Sheila Davis, Jan Howell, Angela Kirkland, Stuart Owen, Jennifer Smith, Department for Medicaid Services; Kathy Burke, Linda Harney, Department for Mental Health and Mental Retardation Services.
LRC Staff: Dave Nicholas, Emily Caudill, Sarah Amburgey, Karen Howard, Laura Milam, Jenifer Harrison and Emily Harkenrider.
The Administrative Regulation Review Subcommittee met on Tuesday, September 14, 2004, and submits this report:
General Government Cabinet: Executive Branch Ethics Commission
9 KAR 1:030. Administrative Proceedings. John Steffen, General Counsel, represented the Commission.
A motion was made and seconded to approve the following amendments: to amend Section 4 to rephrase provisions in the administrative regulation in conformity with statutory provisions. Without objection, and with agreement of the agency, the amendments were approved.
9 KAR 1:060. Disbursements from charitable fund-raisers. In response to questions by Senator Roeding, Mr. Steffen stated that this administrative regulation would apply if a state agency or public servant held a fund-raiser for a nonprofit organization. It prevented the state agency or public servant from retaining any of the proceeds so that all proceeds would be given to the nonprofit organization. Additionally, as used in this administrative regulation, "public servant" included only executive branch personnel and did not include legislators.
In response to questions by Representative Reinhardt, Mr. Steffen stated that the Commission promulgated this administrative regulation to implement KRS 11A.055 which went into effect in 2002.
A motion was made and seconded to approve the following amendments: (1) to amend the title to clearly reflect the content of the administrative regulation; (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 to 2 to rephrase provisions in the administrative regulation in conformity with statutory provisions. Without objection, and with agreement of the agency, the amendments were approved.
Kentucky Affordable Prepaid Tuition: Plan
11 KAR 17:010. Definitions for 11 KAR Chapter 17. Jo Carole Ellis, Director, and Richard Casey, General Counsel, represented the Plan.
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.
11 KAR 17:100. Administrative fees. 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.
Kentucky Retirement Systems: General Rules
105 KAR 1:020 &E. Reciprocal program between CERS, KERS, SPRS, TRS, JRP and LRP. Eric Wampler, General Counsel, Bill Hanes, Executive Director, and Gerri Miller, Chief Benefits Officer, represented the Systems.
In response to questions by Co-Chair Pullin, Mr. Hanes stated that the Kentucky Retirement Systems publicized purchase requirements and deadlines through a variety of media including newsletters to members and their website. Because they had over 278,000 members, they could not notify each member and alert them to any changes. However, they did try to individualize the notices as much as possible such as when they called each school board to notify them of changes that applied to non-certified school board employees.
In response to questions by Co-Chair Thayer, Mr. Hanes stated that this package of amended administrative regulations did not impact teachers. The amendments implemented the statutory changes to the Systems from the 2004 Session of the General Assembly.
105 KAR 1:140 & E. Contribution reporting. A motion was made and seconded to approve the following amendments: to amend Section 1 to rephrase provisions in the administrative regulation in conformity with statutory provisions. Without objection, and with agreement of the agency, the amendments were approved.
105 KAR 1:200 & E. Retirement procedures and forms. A motion was made and seconded to approve the following amendments: to amend Section 3 to correct minor drafting errors. Without objection, and with agreement of the agency, the amendments were approved.
105 KAR 1:210 & E. Disability procedures.
105 KAR 1:220 & E. Annual disability review.
105 KAR 1:240 & E. Death after retirement procedures.
105 KAR 1:310 & E. Fred Capps Memorial Act.
105 KAR 1:330 & E. Purchase of service credit.
Finance And Administration Cabinet: Office of the Secretary: Purchasing
200 KAR 5:021 & E. Manual of policies and procedures. Ed Ross, State Controller, Angela Robinson, Assistant General Counsel, and Mike Burnside, Executive Director, represented the Cabinet.
In response to questions by Senator Roeding, Mr. Ross stated that procurement cards were similar to credit cards and were issued to certain state employees to make small purchases. The Cabinet billed their agencies for the purchases on a monthly basis. Mr. Burnside added that the procurement cards were master charge cards and they replaced the previous types of purchasing cards used by state employees.
In response to questions by Senator Roeding, Mr. Burnside stated that if a contract was awarded through the bid evaluation document, the contract award automatically posted on the internet. If the bid evaluation document was not used, the agency notified bidders of the contract award in writing through the mail.
A motion was made and seconded to approve the following amendments: (1) to amend the definition of "photocopying"; and (2) to amend Section 1 and the material incorporated by reference for technical corrections and clarifications. Without objection, and with agreement of the agency, the amendments were approved.
200 KAR 5:380. Protests. In response to questions by Co-Chair Pullin, Ms. Robinson stated that this administrative regulation codified the Cabinet's existing policy for contract bidders to file protests. It included the presumption that a bidder knew or should have known of the facts given rise to a protest at the time the solicitation was issued or the contract was awarded. If that presumption was not true in a particular case, the bidder needed to notify the Cabinet. Additionally, it established a new requirement that bidders be notified in writing of the contract award which also served to trigger the protest time period. The fourteen (14) day protest period began three (3) days after the award notifications were mailed.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to include specific statutory language; (3) to amend Section 1 to require an agency to issue written notification of the proposed award to all vendors submitting proposals concurrently with filing the contract with the Government Contract Review Committee; (4) to amend Section 1 to state that the facts giving rise to a protest shall be presumed to have been known to the protestor three calendar days from the date of the agency's written notice to involved vendors; and (5) to amend Section 2 to clarify what types of documents would be required for a written protest. Without objection, and with agreement of the agency, the amendments were approved.
General Government Cabinet: Boards and Commissions: Board of Licensure for Occupational Therapy
201 KAR 28:090. Renewals. John Parrish, Director, Division of Occupations and Professions, and Mark Brengelman, Assistant Attorney General, represented the Board.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to correct statutory citations; (2) to add a new Section 4, Incorporation By Reference, to incorporate the Annual Renewal Application; and (3) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 2, and 3 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 28:110. Fees. A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correct statutory citations; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 28:210. Inactive status. 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 drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Real Estate Appraisers Board
201 KAR 30:040. Standards of practice. Larry Disney and Mark Brengelman, Assistant General Counsel, represented the Board.
In response to a question by Senator Roeding, Mr. Disney stated that the Board informed licensees of regulatory changes during the licensure renewal process and through the national board's website.
In response to questions by Senator Pendleton, Mr. Disney stated that the Board also informed licensees of regulatory changes through their continuing education classes. The changes only applied to appraisers and did not affect real estate brokers and sales agents.
201 KAR 30:060. Fees administrative regulation. In response to a question by Senator Tapp, Mr. Disney stated that a licensee could request inactive status for a maximum of three years. The licensee would have to complete continuing education for each year of inactivation.
In response to questions by Senator Roeding, Mr. Disney stated that there was a fifty (50) dollar fee for inactive status to compensate the Board for their administrative costs in processing the inactive licenses. Licensees voluntarily requested inactive status because it was a better alternative than being out of compliance with federal licensure requirements and having to pay the $200 reactivation fee once compliance was regained.
A motion was made and seconded to approve the following amendments: to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Section 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.
Department Of Agriculture: Livestock Sanitation
302 KAR 20:115 & E. Vesicular stomatitis. Mark Farrow, Chief of Staff, and Rusty Ford, Staff Assistant to State Veterinarian, represented the Department.
In response to questions by Co-Chair Pullin, Mr. Ford stated that vesicular stomatitis was a viral condition surfacing primarily in the southwestern United States that caused lesions in the mouth, tongues, and hooves of livestock. The United States Department of Agriculture closely regulated it because its symptoms resembled those of foot and mouth disease. Kentucky's Department of Agriculture monitored it because an outbreak here would prevent Kentucky from exporting livestock such as horses, cattle, and swine to countries which banned livestock importation from affected states.
In response to questions by Co-Chair Thayer, Mr. Ford stated that this administrative regulation enabled the State Veterinarian to preclude entry of livestock into Kentucky from affected states or affected portions of states. Currently, entry of livestock from New Mexico, Colorado, and the western portion of Texas was precluded.
A motion was made and seconded to approve the following amendments: (1) to amends the RELATES TO and STATUTORY AUTHORITY paragraphs to specify statutory citations; (2) to amend Section 1 to permit entry from a designated area after twenty-one (21) rather than thirty (30) days; and (3) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 1 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 And Public Safety Cabinet: Department of State Police: Polygraph
502 KAR 20:020. Examiners. Karen Quinn, Deputy General Counsel, and Rick Kurtz represented the Department.
In response to a question by Senator Roeding, Ms. Quinn stated that the Department amended this administrative regulation to update the training requirements for polygraph examiners.
In response to a question by Senator Roeding, Mr. Kurtz stated that in Kentucky, the polygraph examination was the primary examination for detection of deception. Use of other examinations such as the voice stress examination was not prevalent.
A motion was made and seconded to approve the following amendments: 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. Without objection, and with agreement of the agency, the amendments were approved.
Environmental And Public Protection Cabinet: Department of Insurance: Surplus Lines
806 KAR 10:021. Repeal of 806 KAR 10:020. Ken Howard, Director, and Vicky Horn, Office of Legal Services, represented the Department.
806 KAR 10:050. Surplus lines affidavits. A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and the STATUTORY AUTHORITY paragraphs to add or correct citations; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph, Section 1, and 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.
Health Insurance Contracts
806 KAR 17:180 & E. Standard health benefit plan. Jill Mitchell, Health Insurance Policy and Managed Care Division, Brenda Parker, Branch Manager, and Betsy Johnson, Counsel, represented the Department.
In response to a question by Co-Chair Pullin, Ms. Parker stated that this package of administrative regulations implemented House Bill (HB) 650, sponsored by Representative Jim Bruce, from the 2004 Session of the General Assembly. Both the HB 650 and these administrative regulations were intended to generate more health insurance options for small businesses and individual purchasers.
A motion was made and seconded to approve the following amendments: to amend the STATUTORY AUTHORITY paragraph and Section 1 to correct citations. Without objection, and with agreement of the agency, the amendments were approved.
806 KAR 17:280 & E. Registration, utilization review, and internal appeal. A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to specify citations; and (2) to amend Section 4 to include language which clarified that the provisions of the administrative regulation were not deviating from KRS 304.17A-609(2). Without objection, and with agreement of the agency, the amendments were approved.
806 KAR 17:300 & E. Provider agreement and risk-sharing agreement filing requirements. A motion was made and seconded to approve the following amendments: to amend various sections 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 Health And Family Services: Office of the Inspector General: Health Services and Facilities
902 KAR 20:058 & E. Operation and services; primary care center. Steven Davis, Deputy Inspector General, represented the Office.
Department for Medicaid Services: Medicaid Services
907 KAR 1:045 & E. Payments for community mental health center services. Angela Kirkland, Director, Stuart Owen, Regulation Coordinator, and Jan Howell, Division Director, represented the Department.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 2 to 7 to comply with the drafting and format requirements of KRS Chapter 13A; and (2) to amend Section 5 to delete provisions that expired June 2004. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 1:155 & E. Payments for supports for community living services for an individual with mental retardation or a developmental disability. 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 state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; and (3) to amend Sections 3 and 6 to correct internal cross-references and provide that established limits were per recipient per provider. Without objection, and with agreement of the agency, the amendments were approved.
Payments and Services
907 KAR 3:090. Acquired brain injury services. A motion was made and seconded to approve the following amendments: to amend Sections 3 and 4 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 for Mental Health and Mental Retardation Services: Institutional Care
908 KAR 3:050 & E. Per diem rate pursuant to KRS 210.710 to 210.760. Linda Harney, Deputy Commissioner, represented the Department.
In response to questions by Senator Roeding, Ms. Harney stated that because this administrative regulation only applied to state-owned facilities, it did not apply to the privately owned Northkey in Northern Kentucky. Additionally, this administrative regulation published the patient cost per day for board, maintenance, and treatment for facilities operated by the Cabinet. The Cabinet based the rates on cost reports and bed days.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; and (2) 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.
The Subcommittee and the promulgating agencies agreed to defer consideration of the following administrative regulations to the next meeting of the Subcommittee:
Finance And Administration Cabinet: Office of the Secretary: Purchasing
200 KAR 5:365. Alternative project delivery methods for capital construction.
General Government Cabinet: Boards and Commissions: Board of Hairdressers and Cosmetologists
201 KAR 12:200. Requirements for continuing education for renewal of license.
Environmental And Public Protection Cabinet: Department for Environmental Protection: Division of Waste Management: Solid Waste Planning
401 KAR 49:011. General provisions relating to area solid waste management plans.
401 KAR 49:080. Solid waste grant funds and solid waste collector and recycler registration.
Department for Natural Resources: 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.
Environmental and Public Protection Cabinet: Office of Housing, Buildings and Construction: Electrical Inspectors
815 KAR 35:070 & E. Low-voltage installer certification. Frank Dempsey, General Counsel, represented the Office.
In response to questions by Senator Roeding, Mr. Dempsey stated that this administrative regulation established a certification process for low-voltage installers such as installers of burglar alarms, garage door openers, and other items using less than 50 volts. If low-voltage installers did not obtain this certification, the electrical licensing statutes required them to obtain electrical contractor or master electrician licenses. The Office estimated that it would cost $99,000 to implement the certification process. Because there was not a grandfather provision for existing low-voltage installers, they had to obtain the certification immediately. The initial application fee was $100 to compensate the Office for their administrative costs in processing the applications, but the certification renewal fee was reduced to fifty (50) dollars. Homeowners installing their own low voltage products were exempted from obtaining this certification.
In response to questions by Senator Tapp, Mr. Dempsey stated that if a low-voltage installer already had an electrical license, the installer did not need to obtain the low-voltage certification too. Additionally, the Office did not intend to enforce this administrative regulation in a way that would put low-voltage installers out of business. The low-voltage industry actually favored the certification process and had requested more stringent requirements than the ones contained in this administrative regulation. Because low-voltage installation was defined as electrical work, without this certification process, the installers were statutorily required to obtain electrical licenses or they would be committing a misdemeanor. The statute only exempted low-voltage installers from the electrical licensure requirements if they obtained this certification.
In response to questions by Representative Reinhardt, Mr. Dempsey stated that this administrative regulation did not apply to telecommunications installers because the electrical licensure statutes specifically exempted them from the licensure requirements.
In response to questions by Representative Lee, Mr. Dempsey stated that the definition of low-voltage installer was established by statute and it was modeled on the National Electrical Code. The Office promulgated this administrative regulation to prevent low-voltage installers from having to obtain electrical licenses.
Senator Tapp made a motion, seconded by Representative Lee, to defer consideration of this administrative regulation. Without objection, and with agreement of the agency, this administrative regulation was deferred.
The subcommittee adjourned at 12:05 p.m. until October 12, 2004 at 10:30 a.m.