The November meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, November 9, 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; Senators Joey Pendleton and Gary Tapp; Representatives James Bruce, Jimmie Lee, and Jon David Reinhardt.
Guests: Diana Barber, Tim Phelps, Kentucky Higher Education Assistance Authority; Jo Carole Ellis, Kentucky Affordable Prepaid Tuition; Alicia Boyd, Ellen Hesen, Office of the Auditor of Public Accounts; Tom Howard, Jamie Link, Nora Marshall, Angela Robinson, Secretary Robert B. Rudolph, Mark Treesh, Finance and Administration Cabinet; Mark Brengelman, Gary Munsie, Board of Dentistry; Sue Derouen, Nathan Goldman, Jimmy Isenberg, Sharon Weisenbeck, Board of Nursing; Mark Brengelman, Becky Klusch, Tina Volz, Board of Physical Therapy; Ellen Benzing, Tom Bennett, Jon Gassett, Department of Fish and Wildlife; Sean Alteri, Diana Andrews, Lona Brewer, Donna Marlin, Department for Environmental Protection; Jack Damron, Deborah Dawson, John F. Hall, Trena C. Rogers, Department of Corrections; Chris Corbin, Malinda Presson, Department of Public Protection; Glenn Bryant, Lisa Daniel, David Fleenor, Rob Gresham, Linda Harney, Jan Howell, Keith T. Jackson, Candy Johnson, Robert Johnson, Angela Kirkland, Matt McKinley, Jason Moseley, Rebecca Randall, Glenn A. Reed, Patty Sewell, Ralph Schiefferle, Anita Travis, Barbara Utter, Cabinet for Health and Family Services; Marie Allison, Attorney at Law; Matthew Hammond, MCA of Kentucky; Joseph Lord, Association of Builders and Contractors; Charles R. Lovorn, Kentucky Association of Highway Contractors; John Meehan, Surety Association of Kentucky and National Association of Surety Bond Producers; G. Michael Murphy, Scott and Murphy, LLC; Wendy Wheeler Mullins, Autism Society of BG; Roger Pottlitzer, Anna Tatman, Builders Exchange of Louisville; Leslie E. Renkey, Department of Labor; Warren Rogers, AGC, W. Rogers Company.
LRC Staff: Dave Nicholas, Emily Caudill, Donna Little, Sarah Amburgey, Karen Howard, Laura Milam, Jenifer Harrison and Emily Harkenrider.
Administrative Regulations Reviewed by the Subcommittee:
Kentucky Higher Education Assistance Authority: Authority
11 KAR 5:001. Definitions pertaining to 11 KAR Chapter 5. Tim Phelps, Student Aid Branch Manager, and Diana Barber, Assistant General Counsel, represented the Authority.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 1 to correct statutory citations 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.
Kentucky Affordable Prepaid Tuition: Plan
11 KAR 17:040. Applying for a prepaid tuition contract. Jo Carole Ellis, Program Director, represented the program.
Cabinet For General Government: Auditor of Public Accounts: Audits
45 KAR 1:030. Audits of sheriff's tax settlements. Ellen Hesen, Counsel, and Alicia Boyd, Audit Manager, represented the Cabinet.
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.
45 KAR 1:040. Audits of county fee officials. 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.
45 KAR 1:050. Audits of fiscal courts. 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.
Finance And Administration Cabinet: Office of the Secretary: Private Activity Bond Allocation Committee
200 KAR 15:010 & E. Formula for allocations of private activity bonds. Nora Marshall, Financial Analyst, and Tom Howard, Acting Executive Director, represented the Committee.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2(1) to specify how the Committee shall allocate the remainder of any unallocated portion of the issuer pool; and (2) 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.
General Government Cabinet: Board and Commissions: Board of Dentistry
201 KAR 8:420. The prevention of transmission of human immunodeficiency virus and hepatitis B virus to patients by dental health care workers. Gary Munsie, Director, and Mark Brengelman, Assistant Attorney General, represented the Board.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to alphabetize the definitions; and (2) to create a Section 4 to incorporate by reference the required report. Without objection, and with agreement of the agency, the amendments were approved.
Board of Nursing
201 KAR 20:085. Licensure periods. Sue Derouen, Operations Manager, Jimmy Isenberg, President, Sharon Weisenbeck, Executive Director, and Nathan Goldman, General Counsel, represented the Board.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add a statutory citation; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 20:095. Retired nurse licensure status. A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to comply with the drafting requirements of KRS Chapter 13A; and (2) to create a new Section 3 to re-insert the existing provisions governing inactive licensure status for licensed practical nurses until November 1, 2005, and for registered nurses until November 1, 2006. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 20:215. Continuing competency requirements. A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 3, 5, 6, 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.
201 KAR 20:225. Reinstatement of license. 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 and to correct cross-references to other administrative regulations. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 20:230. Renewal of licenses. A motion was made and seconded to approve the following amendments: 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.
201 KAR 20:240. Fees for applications and for services. 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 Section 2 to: (a) reinsert the fee for switching from inactive to active license status (because inactive licenses will exist under the statute until November 2006); and (b) reduce the renewal fee from $50 to $40. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 20:370. Applications for licensure and registration. A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 3, and 4 to comply with the drafting requirements of KRS Chapter 13A; and (2) to amend Section 1 to re-insert the existing provisions governing switching from inactive to active license status (because inactive licenses will exist under the statute until November 2006). Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 20:411. Sexual Assault Nurse Examiner Program standards and credential requirements.
Board of Physical Therapy
201 KAR 22:001. Definitions. Mark Brengelman, Assistant Attorney General, Becky Klusch, Executive Director, and Tina Volz, Physical Therapist, represented the Board.
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 correct statutory citations; and (2) to amend the TITLE and Section 1 to comply with the KRS Chapter 13A format requirements for a "Definitions" administrative regulation. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 22:035. A credential holder's change of name, employment or address. 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 the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation; and (3) 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.
201 KAR 22:040. Procedure for renewal or reinstatement of a credential for a physical therapist or a physical therapist assistant. 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 1, 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.
201 KAR 22:045. Continued competency requirements and procedures. 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; (3) to amend Section 1 to comply with the KRS Chapter 13A format requirements for definitions; and (4) 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.
201 KAR 22:052. Compliant procedure and disciplinary action of a credential holder or applicant. 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 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 22:053. Code of ethical standards and standards of practice for physical therapists and physical therapists' assistants. A motion was made and seconded to approve the following amendments: to amend the TITLE and Sections 1, 2, 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.
201 KAR 22:070. Requirements for foreign-educated physical therapists. 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 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.
201 KAR 22:130. Per diem of board members. A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to insert a statutory citation; 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 22:135. Fees. 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 Section 2 to delete fee requirements for reexamination, verification, and administrative costs. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 22:140. Funding of impaired physical therapy practitioners committee. 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.
201 KAR 22:150. Impaired Practitioner Alternative Program. 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, 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.
Commerce Cabinet: Department of Fish and Wildlife Resources: Fish
301 KAR 1:060. Sport and rough fish. Tom Bennett, Commissioner, Jon Gassett, Director, and Ellen Benzing, Attorney, represented the Department.
A motion was made and seconded to approve the following amendments: to amend Sections 1 to 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.
Game
301 KAR 2:041. Shooting preserves and foxhound training enclosures.
301 KAR 2:049. Small game and furbearer hunting on public areas.
301 KAR 2:081. Transportation and holding of native wildlife. A motion was made and seconded to approve the following amendments: (1) to amend Sections 5 and 7 to correct internal references; 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.
301 KAR 2:111. Deer and turkey hunting on federal areas.
301 KAR 2:132 & E. Elk depredation permits and quota hunts. In response to questions by Co-Chair Thayer, Commissioner Bennett stated that due to legal concerns, the Department deleted the requirement that limited nonresidents to ten (10) percent of eligible applicants for elk quota hunts. Generally, about ten (10) percent of elk tag purchasers were nonresidents. Mr. Gassett added that there were approximately 9,000 applicants for the forty-one (41) available elk tags this past year.
A motion was made and seconded to approve the following amendments: to amend Sections 4 and 5 to make technical corrections. Without objection, and with agreement of the agency, the amendments were approved.
301 KAR 2:178. Deer hunting on wildlife management areas.
301 KAR 2:225 & E. Dove, wood duck, teal, and other migratory game bird hunting.
301 KAR 2:241. Repeal of 301 KAR 2:240.
301 KAR 2:251. Hunting and trapping seasons and limits for furbearers and small game. A motion was made and seconded to approve the following amendments: to amend Sections 12 and 13 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Hunting and Fishing
301 KAR 3:022. License, tag and permit fees. In response to questions by Senator Tapp, Commissioner Bennett stated that the Department had established a dog training area permit fee at the request of quail hunters who wanted to be able to train their dogs at commercial facilities throughout the year.
301 KAR 3:030. Year-round season for wildlife. In response to questions by Co-Chair Thayer, Commissioner Bennett stated that under this amended administrative regulation, a deer permit was no longer needed to hunt coyotes, wild hogs, and wood chucks during the firearm season for deer.
301 KAR 4:070. Scientific and educational collecting permits. A motion was made and seconded to approve the following amendments: to amend 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 for Environmental Protection: Public Water Supply
401 KAR 8:010. Definitions for 401 KAR Chapter 8. Donna Marlin, Branch Manager, represented the Department.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to correctly alphabetize terms and otherwise comply with the KRS 13A.222 requirements for a "Definitions" administrative regulation; (2) to amend Sections 1, 2, and 3 to comply with the drafting and format requirements of KRS Chapter 13A; and (3) to amend the Incorporation by Reference section to provide a website for the Division of Water, through which materials may be inspected, copied, or obtained. Without objection, and with agreement of the agency, the amendments were approved.
401 KAR 8:020. Public and semipublic water supplies - general provisions. A motion was made and seconded to approve the following amendments: (1) to amend Sections 1, 2, and 5 to comply with the drafting and format requirements of KRS Chapter 13A; and (2) to amend the Incorporation by Reference section to provide a website for the Division of Water, through which materials may be inspected, copied, or obtained. Without objection, and with agreement of the agency, the amendments were approved.
401 KAR 8:070. Public notification. A motion was made and seconded to approve the following amendments: (1) to amend Sections 1, 3, and 4 to clarify standards and delete language that was vague and arbitrary; and (2) to amend Sections 1 to 5 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.
401 KAR 8:075. Consumer confidence reports. A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clarify how this administrative regulation differed from the federal regulation; 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.
401 KAR 8:150. Disinfection, filtration, and recycling. A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clarify how this administrative regulation differed from the federal regulation; (2) to amend Sections 1, 2, 3, 4, and 6 to comply with the drafting and format requirements of KRS Chapter 13A; and (3) to amend the Incorporation by Reference section to provide a website for the Division of Water, through which materials may be inspected, copied, or obtained. Without objection, and with agreement of the agency, the amendments were approved.
401 KAR 8:300. Lead and copper. 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 Sections 2, 3, 4, 8, and 12 to clarify standards and delete language that was vague and arbitrary; and (3) to amend Sections 2 to 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.
401 KAR 8:441. Repeal of 401 KAR 8:440.
401 KAR 8:700. Bottled water. A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to delete unnecessary language; and (2) to amend Section 1 to specify citations and comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Division for Air Quality: Hazardous Pollutants
401 KAR 57:002. National emission standards for hazardous air pollutants. Diana Andrews, Assistant Director, and Lona Brewer, Manager, represented the Division.
401 KAR 58:025. National emission standard for asbestos.
New Source Standards
401 KAR 59:185. New solvent metal cleaning equipment. A motion was made and seconded to approve the following amendments: to amend Sections 1 and 4 to 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.
New Source Performance Standards
401 KAR 60:005. Standards of performance for new stationary sources.
401 KAR 60:670. Standards of performance for nonmetallic mineral processing plants.
General Standards of Performance
401 KAR 63:002. National emission standards for hazardous air pollutants.
401 KAR 63:106. Repeal of 401 KAR 63:105.
Justice And Public Safety Cabinet: Department of Corrections: Office of the Secretary
501 KAR 6:020. Corrections policies and procedures. Jack Damron, Deputy General Counsel, represented the Department.
A motion was made and seconded to approve the following amendments: to amend Section 1 and the material incorporated by reference 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 Public Protection: Office of Insurance: Assets and Liabilities
806 KAR 6:060. Reserve liabilities, cash surrender values, and nonforfeiture benefits for plans of life insurance with separate rates for smokers and nonsmokers. Chris Corbin, Deputy Executive Director, and Malinda Presson, Acting Director, represented the Office.
In response to a question by Representative Bruce, Ms. Presson stated that this administrative regulation did not affect credit life insurance.
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.
806 KAR 6:070. Valuation of life insurance and annuity reserves. A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to place definitions in alphabetical order, as required by KRS 13A.222(4)(e); (2) to amend Section 5(2) to specify the executive director's options if there was an error in the filed annual statement and in the issued certificate; (3) to amend Section 7(2)(f) to complete an incomplete provision; 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.
806 KAR 6:075. Valuation of life insurance policies. 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.
806 KAR 6:110. Recognition of the 2001 CSO mortality table for use in determining minimum reserve liabilities and nonforfeiture benefits. 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: Department for Public Health: Communicable Diseases
902 KAR 2:020. Disease surveillance. Lisa Daniel, Branch Manager, represented the Department.
Food and Cosmetics
902 KAR 45:070 & E. Body piercing and ear piercing. Anita Travis, Manager, represented the Department.
A motion was made and seconded to approve the following amendments: to amend Sections 6, 12, and 20 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 Public Health: Radiology
902 KAR 100:071. Repeal of 902 KAR 100:073. Robert Johnson, Branch Manager, and Matt McKinley, Branch Manager, represented the Department.
902 KAR 100:072. Use of radionuclides in the health arts. A motion was made and seconded to approve the following amendments: (1) to amend various sections to comply with the drafting and format requirements of KRS Chapter 13; and (2) to amend Section 5 to include requirements inadvertently omitted concerning provisions that must be met before conducting research involving human research subjects using radioactive material. Without objection, and with agreement of the agency, the amendments were approved.
Department for Medicaid Services: Payment and Services
907 KAR 3:010 & E. Reimbursement for physicians' services. Patty Sewell, Assistant Director, and Barbara Utter, represented the Department.
Department for Public Health: Institutional Care
908 KAR 3:060. "Means test" pursuant to the "Patient Liability Act of 1978. Glenn Bryant, Program Administrator, and Linda Harney, Deputy Commissioner, represented the Department.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 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.
Energy Assistance Program/Weatherization
921 KAR 4:118. Weatherization assistance for low income persons. Jason Moseley, Director of Policy Development, represented the Program.
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. Robert Rudolph, Secretary, Mark Treesh, Commissioner, and Jamie Link, Executive Director, represented the Cabinet. John Meehan, Surety Association of Kentucky and National Association of Surety Bond Producers; Joseph Lord, President, Association of Builders and Contractors of Kentuckiana; Charles Lovorn, Executive Director, Kentucky Association of Highway Contractors; and Michael Murphy, President, Scott and Murphy, LLC, appeared in opposition to this administrative regulation.
Secretary Rudolph stated that by authorizing the use of internet reverse auctions, this administrative regulation created another means for the Commonwealth to obtain the best price under the model procurement code.
In response to a question by Co-Chair Thayer, Secretary Rudolph stated that by statute, architects and engineers were exempt from this administrative regulation.
In response to questions by Senator Tapp, Secretary Rudolph stated that the Cabinet did not intend to use reverse auctions for any construction projects. However, a pre-engineered building such as a Butler building with limited architect, engineering, and design work would be an appropriate type of project in which to utilize reverse auctions. Nothing in this administrative regulation required the Cabinet to use reverse auctions for unsuitable projects, such as large construction projects. It merely authorized reverse auctions as another form of competitive sealed bidding. Once the Commonwealth's accounting system was updated, the Cabinet could conduct the reverse auction process at no extra cost to the state or the vendors. In the interim, the reverse auction software provider would charge the Cabinet up to two (2) percent to administer the process. If the Cabinet purchased supplies for capital construction projects through reverse auctions, the Cabinet would monitor the quality of the supplies like they did currently under other procurement methods.
In response to questions by Senator Pendleton, Secretary Rudolph stated that while the Cabinet did not intend to use reverse auctions for complex construction projects, the Cabinet did not want to exempt them from the administrative regulation. The Cabinet did not want to have to define complex construction or establish a precedent of creating exemptions in this administrative regulation. The Cabinet wanted to retain discretion to determine the best use of reverse auctions. Engineers and architects were exempt from reverse auctions by statute and not by this administrative regulation.
In response to questions by Co-Chair Thayer, Secretary Rudolph stated that reverse auctions would enable the Cabinet to reduce wasteful spending of taxpayer dollars. Additionally, the Cabinet would have significant legislative oversight in implementing this administrative regulation. If the use of reverse auctions for construction projects became problematic, legislation could be introduced to exempt those projects from this process.
Representative Lee stated that he favored using reverse auctions to procure commodities if it would generate savings. However, this administrative regulation should exempt or limit the use of reverse auctions for complex construction projects rather than leaving it up to the Cabinet's discretion. If reverse auctions needed to be used in the future for those projects, this administrative regulation could be amended or legislation could be introduced to authorize it.
Senator Tapp stated that the construction industry had fueled Kentucky's economy for the past few years. The industry could benefit from this administrative regulation if the state used the savings generated through the reverse auction process to bond more construction projects. He did not believe that the Cabinet would utilize reverse auctions inappropriately for complex construction projects but if they did, the legislature could rectify that through legislation.
Mr. Meehan stated that he represented the Surety Association of Kentucky and the National Association of Surety Bond Producers. He was opposed to this administrative regulation because it did not exempt complex construction projects. From the surety companies' perspective, the construction industry was already treated differently by statute. KRS 45A.180 and 45A.190 distinctly separated how they procured construction and how they guaranteed the product. This administrative regulation could easily create a construction exemption by mirroring that statutory scheme.
Mr. Lord stated that he was the President of the Association of Builders and Contractors of Kentuckiana. The Association appreciated the Cabinet and Secretary Rudolph for so openly working with them on this administrative regulation. However, the Association opposed the use of reverse auctions for the purpose of construction services in the Commonwealth.
Mr. Lovorn stated that he was the Executive Director of the Kentucky Association of Highway Contractors. He too appreciated the Cabinet's willingness to work with them on this administrative regulation. However, Mr. Murphy would explain why the Association was opposed to this administrative regulation.
Mr. Murphy stated that he had extensive experience in the construction industry. His companies had been in business for numerous years and had completed a significant amount of projects. He was opposed to the use of reverse auctions for complex construction projects because a reverse auction only considered the lowest bid. It did not account for the company's experience or the quality of their equipment, employees, or work product. It could induce companies to lower their standards to deliver the cheapest price.
Representative Bruce stated that he had worked with the Cabinet on this administrative regulation and was in favor of reverse auctions. He wished they were already in use. He made a motion, which was seconded by Representative Reinhardt, to approve the following amendments: (1) to amend Sections 1 and 4 to move requirement language out of the "Definitions" section; (2) to amend various sections to comply with the drafting and format requirements of KRS Chapter 13A; (3) to amend Section 4 to clarify that documents related to the bid evaluation process were preliminary and could only be disclosed to authorized state personnel or those involved in the evaluation process who had a legitimate interest in a particular matter; and (4) to amend Section 4 to state that any bidder who had submitted an offer found acceptable or potentially acceptable may submit supplemental information until the closing date. The motion failed on a roll call vote, with Co-Chair Thayer, Senator Tapp, Representative Bruce, and Representative Reinhardt voting to approve the amendments, and with Senator Pendleton and Representative Lee voting to not approve the amendments. Subcommittee staff stated that the amendments were not approved because KRS 13A.020(4) required any action of the Subcommittee to be approved by a majority, or five (5), of its members.
Secretary Rudolph stated that the Cabinet wanted to defer the Subcommittee's consideration of this administrative regulation. Without objection, this administrative regulation was deferred.
General Government Cabinet: Board and Commissions: Board of Physical Therapy
201 KAR 22:091. Repeal of 201 KAR 22:031, 22:061, 22:101, or 22:106.
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.
Division of Waste Management: Petroleum Storage Tank Environmental Assurance Fund
415 KAR 1:060E. Financial responsibility account. Pursuant to KRS 13A.290(4), consideration of this administrative regulation was deferred to the December meeting of the Subcommittee.
Council On Postsecondary Education: Adult Education and Literacy
785 KAR 1:130. GED Eligibility requirements.
Environmental And Public Protection Cabinet: Department of Labor: Labors Standards; Wages and Hours
803 KAR 1:070. Executive, administrative, supervisory or professional employees; salesmen.
Public Service Commission: Utilities
807 KAR 5:120 & E. Applicants for certificate of public convenience and necessity for certain electric transmission lines.
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 Medicaid Services: Medicaid Services
907 KAR 1:022 & E. Nursing facility services and intermediate care facility for individuals with mental retardation or a developmental disability services. David Fleenor, General Counsel, Jan Howell, Director, and Angela Kirkland, Director, represented the Department. Marie Allison, Attorney, and Wendy Wheeler Mullins appeared in opposition to this administrative regulation.
Marie Allison stated that in the course of representing an individual applying for the Supports for Community Living Waiver program, she became aware of a problem with this administrative regulation. As currently drafted, Section 4(5) of this administrative regulation required an individual to be both developmentally disabled and mentally retarded to qualify for ICF-MR-DD patient status. However, federal law required that status to be available if the individual was either developmentally disabled or mentally retarded. Individuals were being denied services they should qualify for because the Department was applying an overly strict standard for ICF-MR-DD patient status.
Ms. Kirkland stated that the Department would like to retain the current language of the administrative regulation because they needed the Supports for Community Living program to target those with mental retardation. The Supports for Community Living program only had a limited number of slots and there was already a waiting list for them. Individuals with severe developmental disabilities could be served under the home and community based waiver program which had more slots, some of which were still available.
Ms. Allison stated that the Department could not limit the Supports for Community Living program to only those with mental retardation under federal law. Additionally, that program offered more services than the home and community based waiver program such as residential care and job coaching.
Ms. Mullins stated that she too was concerned about Section 4(5) of this administrative regulation. As the parent of children with autism and Asperger Syndrome which were developmental disabilities, she did not want this administrative regulation limited to those with only mental retardation. She wanted its provisions to be inclusive so her children would have the support they need to continue to live in the community and not be in an isolated situation like an institution.
Co-Chair Thayer made a motion to defer consideration of this administrative regulation. Without objection, and with agreement of the agency, this administrative regulation was deferred.
907 KAR 1:065 & E. Payments for price-based nursing facility services. In response to questions by Representative Reinhardt, Ms. Howell stated that this administrative regulation implemented the provider assessment from House Bill 292 from the 2004 Regular Session of the General Assembly. Ms. Kirkland added that under federal law, the state could not exempt facilities without Medicaid or Medicare beds from the provider tax. The Department was exploring whether they could reduce the tax for those facilities based on their number of charity care days.
Representative Reinhardt made a motion to defer consideration of this administrative regulation. Without objection, and with agreement of the agency, this administrative regulation was deferred.
Department for Public Health: Kentucky Early Intervention System
911 KAR 2:110 & E. Kentucky Early Prevention Program point of entry.
911 KAR 2:120 & E. Kentucky Early Intervention Program evaluation and eligibility.
911 KAR 2:130 & E. Kentucky Early Intervention Program assessment and service planning.
911 KAR 2:140 & E. Kentucky Early Intervention Program primary service coordination and assistive technology.
911 KAR 2:150 & E. Kentucky Early Intervention Program personnel qualifications.
911 KAR 2:200 & E. Coverage and payment for Kentucky Early Intervention Program services.
The subcommittee adjourned at 12:30 p.m., until Tuesday, December 14, 2004 at 10:30 a.m.