The October meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, October 12, 2004, at 12:30 PM, in Room 149 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, Tim Phelps, Kentucky Higher Education Assistance Authority; Eddie Mattingly, Mark Treesh, Department of Revenue; Jim Abbott, Angela Robinson, Ed Ross, Finance and Administration Cabinet; Catherine Ball, David W. Bratcher, Governor's Office of Agriculture Policy; Dena Moore, Board of Hairdressers; Mark Farrow, Department of Agriculture; Kevin Noland, Kentucky Board of Education; B.J. Helton, Cheryl King, Council on Postsecondary Education; John Clay, Virginia Davis, Stephen B. Humphress, Office of Alcoholic Beverage Control; Carrie Banahan, Lee Barnard, Betsy Johnson, Brenda M. Parker, Department of Insurance; Dr. Michael Auslander, Guy F. Delius, John Gray, Robert Gresham, Matt McKinley, Lewis Rams, Rebecca Randall, Cabinet for Health and Family Services; and Bob McBeath, Auditor of Public Accounts.
LRC Staff: Dave Nicholas, Emily Caudill, Donna Little, Sarah Amburgey, Karen Howard, Laura Milam, Jenifer Harrison and Emily Harkenrider.
The Administrative Regulation Review Subcommittee met on October 12, 2004, and submits this report:
Kentucky Higher Education Assistance Authority: Authority
11 KAR 4:040. Educational institution participation requirements. Diana Barber, Assistant General Counsel, and Tim Phelps, Student Aid Branch Manager, represented the Authority.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to comply with KRS 13A.222(4)(a); and (2) to amend Sections 1 and 3 to correct statutory citations. Without objection, and with agreement of the agency, the amendments were approved.
11 KAR 4:071. Repeal of 11 KAR 4:070.
11 KAR 5:145. CAP grant awards determination procedure. A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to correct a statutory citation; and (2) to amend Section 6 to insert the word "and" for clarity. Without objection, and with agreement of the agency, the amendments were approved.
11 KAR 6:010. KHEAA Work-Study Program. A motion was made and seconded to approve the following amendments: (1) to amend Sections 1 and 6 to correct statutory citations; and (2) to amend Sections 1 and 10 to correct two typographical errors. Without objection, and with agreement of the agency, the amendments were approved.
11 KAR 8:040. Deferment of teacher scholarship repayment. A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to correct a statutory citation; and (2) to amend Sections 1, 3, and 4 for clarity 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.
11 KAR 16:001. Definitions for 11 KAR Chapter 16. A motion was made and seconded to approve the following amendments: to amend Section 1 to correct statutory citations. Without objection, and with agreement of the agency, the amendments were approved.
Finance And Administration Cabinet: Department of Revenue: General Admission
103 KAR 1:050. Forms manual. Mark Treesh, Commissioner, and Eddie Mattingly, Acting Director, Division of Legislative Services, represented the Department.
Finance And Administration Cabinet: Office of the Secretary: Travel Expense and Reimbursement
200 KAR 2:006 & E. Employees' reimbursement for travel. Jim Abbott, Commissioner, Facilities and Support Services, Angela Robinson, Assistant General Counsel, and Ed Ross, State Controller, represented the Office.
A motion was made and seconded to approve the following amendments: (1) to amend Section 7 to delete the requirement that a state officer or employee have a receipt for the reimbursement of meals; (2) to amend Section 8 to state that receipts for actual and necessary expenses of official business travel were only required for items over ten (10) dollars; (3) to amend Section 9 to insert language stating how mileage shall be calculated and paid for if an employee's point of origin for travel was the employee's work station, the employee drove to a travel destination, and the employee's final destination was the employee's residence; and (4) 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.
Purchasing
200 KAR 5:365. Alternative project delivery methods for capital construction. In response to questions by Senator Pendleton, Commissioner Abbott stated that this administrative regulation defined and regulated alternative delivery methods for capital construction projects. In certain types of projects, alternative delivery methods were more efficient and cost-effective.
In response to questions by Co-Chair Pullin, Commissioner Abbott stated that examples of alternative delivery methods were design-build projects and construction management projects. It was important that Kentucky be able to utilize those methods for capital construction projects.
In response to a question by Senator Roeding, Commissioner Abbott stated that change orders could still be a problem even if alternative delivery methods were used for capital construction.
In response to a question by Senator Tapp, Commissioner Abbott stated that Secretary Rudolph closely monitored the Cabinet's use of change orders.
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.
Governor's Office Of Agricultural Policy: Kentucky Agricultural Finance Corporation
200 KAR 18:021. Repeal of 200 KAR 18:020. Catherine Ball, General Counsel, and David Bratcher, Advisor, represented the Office.
General Government Cabinet: Board of Hairdressers and Cosmetologists
201 KAR 12:200. Requirements for continuing education for renewal of license. Dena Moore, Executive Secretary, represented the Board.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to insert correct KRS and Ky. Acts 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 3, 4, and 6 to 11 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Governor's Office Of Agricultural Policy: Kentucky Agricultural Finance Corporation
202 KAR 9:010. Procedures for selling guaranteed security instruments. Catherine Ball, General Counsel, and David Bratcher, Advisor, represented the Office.
A motion was made and seconded to approve the following amendments: to amend Sections 2 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.
Department Of Agriculture: Division of Animal Health: Dog Law Administration
302 KAR 5:011. Repeal of 302 KAR 5:010, 5:030, 5:050, 5:060, and 5:070. Mark Farrow, Chief of Staff, represented the Department.
In response to questions by Senator Roeding, Mr. Farrow stated that in 1954, the state dog law was enacted with a $1.50 license tag fee. Because the law was unenforceable and widely ignored, Senate Bill 133 from the 2004 Session of the General Assembly repealed it. Now, counties could choose to enact local ordinances but they were not required to do so.
Education Cabinet: Kentucky Board of Education: Kentucky Department of Education: Office of Learning Support Services
704 KAR 7:140. World War II and Korean Veterans Diplomas. Kevin Noland represented the Department.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO, STATUTORY AUTHORITY, and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to correct statutory citations; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and 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.
Council On Postsecondary Education: Adult Education and Literacy
785 KAR 1:010. GED Testing Program. Cheryl King, Vice President, and B.J. Helton, Senior Associate and GED Administrator, represented the Council.
In response to questions by Senator Roeding, Ms. King stated that the Council requested the testing fee increase with caution since most applicants were low-income individuals. However, the Council had not increased the fee since 1997 and currently, the testing centers were operating at a deficit. It cost the centers $37 to administer the test and the existing testing fee was $30. Although the centers retained the entire fee, the majority of the centers had no other sources of funding. With the proposed fee increase, Kentucky's testing fee would continue to be lower than that of adjacent states and would be the 45th lowest fee in the nation. If applicants could not afford the fee, the adult education programs which provided the GED instruction would assist them in obtaining any available local resources such as from churches, businesses, the United Way, or county governments.
In response to questions by Co-Chair Pullin, Ms. King stated that the adult education programs could not use their state and federal funding for adult instruction to subsidize testing fees for low-income applicants, but the programs could assist them in obtaining any available community resources.
In response to a question by Senator Tapp, Ms. King stated that for the past two (2) years, the Council had utilized their adult education funds to waive the testing fee for low-income applicants in hopes of motivating more individuals to participate in the GED program. Unfortunately, the waiver did not result in a significant increase of testing applicants.
In response to questions by Senator Roeding, Ms. King stated that there were almost 680,000 Kentuckians without high school diplomas. Last year, 13,000 applicants took the GED test and about 9,700 of them passed. Currently, about twenty-two (22) percent of GED completers entered college and the Council hoped to increase that percentage to forty (40) or fifty (50) percent. Although GED completers initially had lower rates of college retention than high school graduates, if they succeeded in becoming sophomores, they had college graduation rates equal to high school graduates. Additionally, Ms. Helton stated that if Kentucky amended its GED program requirements, the existing GED testing standards would not change because the testing centers administered the national GED test.
In response to questions by Representative Lee, Ms. King stated that if an applicant took all parts of the GED test at one time, the new fee was forty (40) dollars. If the applicant had to retest any of the subparts, the new fee was ten (10) dollars each. An applicant only had to retest any failed subparts.
In response to questions by Representative Reinhardt, Ms. King stated that the Council had stopped waiving the testing fee due to state and federal budget cuts. Those funds were now needed to finance the county adult education programs which provided the free GED instruction for applicants.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to properly reference the executive order; and (2) to amend Section 5 to specify that the testing fee shall be $40 if the applicant was taking all five subtests in a test session or $10 per subtest. Without objection, and with agreement of the agency, the amendments were approved.
Environmental And Public Protection Cabinet: Office of Alcoholic Beverage Control: Advertising Distilled Spirits and Wine
804 KAR 1:100. General advertising practices. John Clay, Executive Director, and Stephen B. Humphress, General Counsel, represented the Office.
In response to questions by Co-Chair Thayer, Mr. Clay stated that this package of amended administrative regulations implemented legislation from the 2004 Regular Session of the General Assembly. The amendments created more business-friendly licensure regulations, such as for caterers.
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 to 8 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Advertising Malt Liquor
804 KAR 2:071. Repeal of 804 KAR 2:007.
Licensing
804 KAR 4:010. Information required. 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 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.
804 KAR 4:100. Records to be retained. 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 Section 1 to comply with the drafting and format requirements of KRS Chapter 13A; and (4) to establish Section 3 to require the retention of records for entities licensed pursuant to the provision of KRS 242.123 and KRS 242.185. Without objection, and with agreement of the agency, the amendments were approved.
804 KAR 4:170. Through transporters. In response to a question by Senator Roeding, Mr. Clay stated that a through transporter was a trucker or trucking company moving liquor through the state on a cross-country route.
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; (2) to amend Sections 1 and 2 to comply with the drafting and format requirements of KRS Chapter 13A; and (3) to establish Section 3 to incorporate by reference the required form. Without objection, and with agreement of the agency, the amendments were approved.
804 KAR 4:310. Caterer's license.
804 KAR 4:350. Out-of-state brewer's license.
804 KAR 4:361. Repeal of 804 KAR 4:360.
804 KAR 4:370. Entertainment destination center license.
804 KAR 4:390. License renewals. 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 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.
Conduct of Business; Employees
804 KAR 5:070. Minors. A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct a citation; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to insert authorizing language; and (3) to amend Section 2 to comply with the format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Retail Premises
804 KAR 7:010. Location in cities of first class. A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to insert authorizing language; (3) to amend Sections 1 and 2 to comply with the drafting and format requirements of KRS Chapter 13A; and (4) to amend Section 2 to comply with the statutory requirements of KRS 241.075 pertaining to certain liquor licenses for "combination business and residential areas." Without objection, and with agreement of the agency, the amendments were approved.
Quotas
804 KAR 9:010. Retail liquor license limit. In response to questions by Representative Reinhardt, Mr. Clay stated that the amendments to this administrative regulation deleted the 25,000 square footage parking requirement for retail package and drink liquor licensees. Local zoning and permit requirements would now govern that issue. However, the Office retained their general statutory authority to deny, suspend, or revoke licenses for sufficient cause, which could include parking and traffic safety hazards.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to insert authorizing language; (3) to amend Sections 1 and 2 to clarify how this administrative regulation applied to cities of the first class subject to KRS 241.065; and (4) 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.
Malt Beverage Equipment, Supplies and Service
804 KAR 11:010. Equipment and supplies. A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct 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 the RELATES TO 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.
Department of Insurance: Health Insurance Contracts
806 KAR 17:290 & E. Independent external review program. Carrie Banahan, Director, Lee Barnard, and Betsy Johnson, Counsel, represented the Department.
A motion was made and seconded to approve the following amendments: to amend Section 3(6)(a) to require an Independent External Reviewer to reverify credentials every three (3) years, instead of every two (2) years. Without objection, and with agreement of the agency, the amendments were approved.
Cabinet For Health And Family Services: Office of Certificate of Need: State Health Plan
900 KAR 5:020 & E. State Health Plan for facilities and services. John Gray, Director, represented the Office.
In response to questions by Representative Bruce, Mr. Gray stated that ordinarily a certificate of need was required to establish a diagnostic and MRI clinic. However, some clinics were circumventing that requirement through the certificate of need exemption for private physician offices. The clinics claimed to be private physician offices even if there was no physician ownership or the offices were never used by a physician. The Office was addressing that issue by holding public hearings for the clinics to show cause why they didn't have certificates of need.
Certificate of Need
900 KAR 6:030 & E. Certificate of Need expenditure minimums. A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to properly reference the executive order; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 and 2 to specify that the provisions took effect on July 30, 2004, the effective date of the emergency administrative regulation. Without objection, and with agreement of the agency, the amendments were approved.
Department for Public Health: Communicable Diseases
902 KAR 2:070. Rabies control. Dr. Michael Auslander, State Public Health Veterinarian, represented the Department.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to specify citations; (2) to amend Sections 1, 5, 7, and 8 to delete provisions that repeated or conflicted with statutory provisions; (3) to amend Section 8 to incorporate by reference the required form; and (4) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 3, 6, 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.
Milk and Milk Products.
902 KAR 50:110. Grade A milk and milk products standards. Lewis Rams, Branch Manager, and Guy Delius, Assistant Director, represented the Department.
In response to a question by Representative Bruce, Mr. Delius stated that Kentucky's milk administrative regulations provided for safe milk consumption. This administrative regulation was amended so its standards would more closely follow the federal regulatory 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.
Radiology
902 KAR 100:012. Fee schedule. Guy Delius, Assistant Director, and Matt McKinley, Section Supervisor, represented the Department.
In response to questions by Senator Roeding, Mr. Delius stated that this administrative regulation established fees for the shipment of radioactive materials through Kentucky so Kentucky could recoup the costs associated with the shipments from the industries who were benefiting from them.
A motion was made and seconded to approve the following amendments: to amend Section 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.
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 5:375. Multi-step competitive sealed bidding.
Environmental And Public Protection Cabinet: Department for Environmental Protection: Public Water Supply
401 KAR 8:010. Definitions for 401 KAR Chapter 8.
401 KAR 8:020. Public and semipublic water supplies - general provisions.
401 KAR 8:070. Public notification.
401 KAR 8:075. Consumer confidence reports.
401 KAR 8:150. Disinfection, filtration, and recycling.
401 KAR 8:300. Lead and copper.
401 KAR 8:441. Repeal of 401 KAR 8:440.
401 KAR 8:700. Bottled water.
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.
Cabinet For Health And Family Services: Department for Public Health: Radiology
902 KAR 100:071 Repeal of 902 KAR 100:073.
902 KAR 100:072. Use of radionuclides in the health arts.
Department for Medicaid Services: Payment and Services
907 KAR 3:010 & E. Reimbursement for physicians' services.
The subcommittee adjourned at 1:40 p.m., until Tuesday, November 9, 2004 at 10:30 a.m.