The January meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, January 11, 2005, at 10:30 AM, in Room 149 of the Capitol Annex. Representative Tanya G. Pullin, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Richard "Dick" Roeding, Co-Chair; Representative Tanya G. Pullin, Co-Chair; Senators Alice Kerr, Joey Pendleton, and Gary Tapp; Representatives James E Bruce and Jon David Reinhardt.
Guests: Marlane F. Robinson, Shawn Sparks, Eric Wampler, Kentucky Retirement Systems; Jimmy Isenberg, Nathan Goldman, Sharon Weisenbeck, Board of Nursing; Tom Bennett, Ellen Benzing, Department for Fish and Wildlife; Donna Duncan, Catherine Staib, Cabinet for Economic Development; Jennifer Carroll, B.J. Helton, Kevin Noland, Board of Education; Richard Belding, Jim Nelson, Department for Libraries and Archives; Chris Corbin, Martin Koetters, Office of Insurance; Jim Gallagher, Mark Posnansky, Kentucky Horse Racing Authority; Elizabeth Caywood, Shirley Eldridge, Dr. Eugene Foster, John Gray, Jason Mosley, Germaine O'Connell, Steve Davis, Ken Zeller, Cabinet for Health and Family Services; Richard Innes, Dr. H. M. Snodgrass, Ted Bradshaw.
LRC Staff: Dave Nicholas, Emily Caudill, Donna Little, Sarah Amburgey, Laura Milam, Jenifer Harrison and Emily Harkenrider.
The Administrative Regulation Review Subcommittee met on Tuesday, January 11, 2005, and submits this report:
Administrative regulations reviewed by the Subcommittee:
FINANCE AND ADMINISTRATION CABINET: Kentucky Retirement Systems: General Rules
105 KAR 1:370. Kentucky Retirement Systems Personnel Policies. Bill Hanes, executive director, Marlene Robinson, Human Resources Director, and Eric Wampler, General Counsel, represented the Cabinet.
GENERAL GOVERNMENT CABINET: Board and Commissions: Board of Nursing
201 KAR 20:070. Licensure by examination. Sharon Weisenbeck, Executive Director, Jimmy Isenberg, President, and Nathan Goldman, General Counsel, represented the Board.
In response to questions by Co-Chair Pullin, Ms. Weisenbeck stated that these administrative regulations did not directly affect the ability of retired or inactive nurses to re-enter the field. The subcommittee considered administrative regulations at its December 2004 meeting that were intended to make it easier for retired and inactive nurses to return to active nursing in Kentucky. The Board would continue to work on easing those requirements.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to delete an outdated cross-reference to a repealed administrative regulation; (2) to amend Section 4 to specify that the clinical internship provisions apply beginning January 1, 2006; and (3) to amend Sections 1, 4, and 6 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 20:110. Licensure by endorsement.
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; (2) to amend Section 2 to delete an outdated cross-reference to a repealed administrative regulation; (3) to amend Section 5 to specify that clinical internship provisions apply beginning January 1, 2006; (3) to amend Sections 1, 5, and 6 to comply with the drafting and format requirements of KRS Chapter 13A; and (4) to create a new Section 7 to incorporate by reference a required document. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 20:470. Dialysis technician credentialing requirements and training program standards.
In response to questions by Senator Pendleton, Mr. Goldman stated that this administrative regulation was intended to make it easier for applicants to become dialysis technicians in Kentucky with continuous training programs. However, there was a high turnover rate for dialysis technicians. Ms. Weisenbeck stated that the high turnover rate was at least partially attributed to the technicians using the dialysis technician programs and positions as a stepping stone to becoming nurses. The dialysis technician program served as a starting point for many people interested in a medical field career but its role as a feeder program contributed to a shortage of dialysis technicians in Kentucky and higher training costs for the constant turnover of trained personnel.
A motion was made and seconded to approve the following amendments: to amend Sections 5, 6, 7, 12, and 13 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
COMMERCE CABINET: Department of Fish and Wildlife Resources: Hunting and Fishing
301 KAR 3:120. Commercial nuisance wildlife control. Tom Bennett, Commissioner, Jon Gassett, Director, and Ellen Benzing, Staff Attorney, represented the Department.
A motion was made and seconded to approve the following amendments: to amend Sections 2 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.
CABINET FOR ECONOMIC DEVELOPMENT: Kentucky Economic Development Finance Authority: Kentucky Industrial Revitalization Authority
307 KAR 1:021. Repeal of 301 KAR 1:020. Catherine Staib, Assistant General Counsel, represented the Cabinet.
EDUCATION CABINET: Kentucky Board of Education: Department of Education: Office of Learning and Support Services
704 KAR 7:150. Secondary GED Program. Kevin Noland, General Counsel, Dr. H.M. Snodgrass, Superintendent, Harrodsburg Independent School District, and Jennifer Carroll, Consultant, represented the Department. Richard Innes, Education Analyst, Bluegrass Institute for Public Policy Solutions, appeared in opposition to this administrative regulation.
In response to questions by Co-Chair Roeding, Mr. Noland stated that this administrative regulation implemented 2004 House Bill 178, which unanimously passed both chambers. That bill, which was initiated by two superintendents, permitted a school district to voluntarily offer a secondary GED program to students in an effort to keep those students from dropping out of school. Seven or eight school districts have expressed an interest in this program. However, the American Council on Education, the national organization for GED administration, requires that state standards be in place before a high school student may sit for the GED exam. This administrative regulation established the state standards required by the national organization while also maintaining local discretion for school districts without overburdening the ability of the districts to meet their students' needs.
In response to questions by Co-Chair Roeding, Dr. Snodgrass stated that the secondary GED program would make a difference to the lives of those students who were reached by the program similar to the positive effect a boy throwing starfish back into the ocean would have on those few starfish. Local school districts had successfully created alternative programs to substantially decrease Kentucky's dropout rate. He believed the secondary GED program would enable a few Kentucky students to be more successful later in life than if those students simply dropped out of school without earning a GED. The administrative regulation established eligibility requirements to ensure that students and schools could not use its provisions to circumvent assessment and accountability requirements and it established monitoring provisions to keep track of the students that were in the program. Additionally, 2004 House Bill 178 and this administrative regulation align Kentucky's criteria for reporting drop-outs with the criteria used in other states and by the National Center for Educational Statistics. The American Council on Education had conducted a pilot program to ensure that secondary GED programs were not subject to abuse. House Bill 178 had been endorsed by the state superintendents' association.
In response to a question by Representative Reinhardt, Mr. Noland stated that many students who were two years behind their peers would eventually drop out of school.
Mr. Innes stated that this administrative regulation created a new secondary GED program in Kentucky’s public high schools. He presented seven reasons to the Subcommittee to support his recommendation that the administrative regulation be found deficient. His reasons included doubtful authority to create the secondary GED program, conflict with existing administrative regulations, the absence of a required fee schedule, missing procedures and organizational requirements, the potential to compromise CATS school assessments, Statement of Consideration omissions, and incomplete cost estimates.
Mr. Innes stated that the secondary GED program undermined KERA and created undue temptations for schools and students to turn away from the regular high school diploma track to this easier option. For this reason and the other seven reasons he had just outlined, he said the Subcommittee should find this administrative regulation deficient. Additionally, he wanted the Subcommittee to refer the entire matter of House Bill 178 and the Secondary GED program to the full legislature for reconsideration and repeal in accordance with its authority under KRS 13A.030. His organization has prepared a paper titled Is the Dream of KERA Over? which outlined other options for Kentucky and was available at www.bipps.org.
In response to questions by Representative Reinhardt, Mr. Noland stated that while the Department had responded to Mr. Innes' concerns in a ten-page letter in December, many of his concerns stemmed from a basic belief that House Bill 178 was bad policy. The Department was not authorized to usurp the General Assembly or to arbitrarily decide not to implement a statute passed unanimously by the legislature. After monitoring implementation of the program, the Department would report back to the General Assembly on its concerns and findings. The administrative regulation did not specifically establish an appeals process because the local school districts has discretion in offering the program and the Department did not want to overregulate the program.
In response to questions by Co-Chair Roeding, Dr. Snodgrass stated that the eligibility criteria was very specific and typically a student either met or did not meet the criteria. The language used in the administrative regulation was consistent with that of the National Center for Educational Statistics for reporting drop-out information. According to statistics from the Council on Postsecondary Education, about one-third of the students in Kentucky who dropped out went into the adult GED program. Those 16 and 17 year olds had a 75% pass rate on the GED, which was the same passage rate as adults.
In response to questions from Senator Kerr, Mr. Noland stated that the debate on the appropriateness of having a secondary GED program in Kentucky was a question for the General Assembly. The Department was required to comply with the legislation as it was enacted until the General Assembly either repeals or amends the law. This administrative regulation did not establish a fee for students taking the GED test because the Council on Postsecondary Education was responsible for setting the fee and had established a $40 fee for persons taking the GED test.
In response to questions by Co-Chair Roeding, Mr. Noland stated that Section 6 of the administrative regulation established annual reporting requirements and Section 7 established monitoring requirements. The Department would monitor the program and provide technical assistance, and could revoke program approval if the program failed to meet program standards. The Department would use that information to report back to the General Assembly on the program's implementation and its recommendations for improvements.
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.
Department for Libraries and Archives: Public Records Division: Archives
725 KAR 1:040. Collection and distribution of reports and publications. Jim Nelson, State Librarian and Commissioner, and Richard Belding, Director, Public Records, represented the Department.
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.
ENVIRONMENTAL AND PUBLIC PROTECTION CABINET: Office of Insurance: Assets and Liabilities
806 KAR 6:010. Valuation standards; audits. Martin Koetters, Executive Director, and Chris Corbin, Deputy Director, represented the Office.
Department of Public Protection: Kentucky Horse Racing Authority: Thoroughbred Racing
810 KAR 1:004. Stewards. Jim Gallagher, Executive Director, and Mark Posnansky, Attorney, represented the Authority.
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 to 4 to comply with the drafting and format requirements of KRS Chapter 13A; and (3) to amend Section 1 to clearly set the standards for qualification as a steward. Without objection, and with agreement of the agency, the amendments were approved.
CABINET FOR HEALTH AND FAMILY SERVICES: Office of Certificate of Need: Certificate of Need
900 KAR 6:050. Certificate of Need Administrative Regulation. John Gray, Executive Director, represented the Office.
In response to a question by Senator Pendleton, Mr. Gray stated that the Office would agree to delete the deadline in Section 8(2)(e)1.a. of the administrative regulation that required letters of intent be filed on or before August 29, 2005 if the acquisition and relocation took place in the same county.
In response to a question by Representative Bruce, Mr. Gray stated that this administrative regulation established the review standards for the pilot angioplasty program created in the state health plan. The pilot project allowed two hospitals to provide angioplasty services without having an open heart program at the hospitals.
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; (2) to amend Sections 1, 7, 8, 12, 16, 20, 24, 27, 28, and 29 to comply with the drafting and format requirements of KRS Chapter 13A; and (3) to amend Section 8(2)(e)1.a. to delete the requirement that a letter of intent be filed on or before August 29, 2005 if the acquisition and relocation takes place in the same county. Without objection, and with agreement of the agency, the amendments were approved.
Department for Public Health: Kentucky Early Intervention System
911 KAR 2:140 & E. Kentucky Early Intervention Program primary service coordination and assistive technology. Dr. Steve Davis, Director, and Germaine O'Connell, Branch Manager, represented the Department. Ken Zeller, Senior Staff Attorney, Protection and Advocacy, appeared in support of these two administrative regulations.
Dr. Davis stated that these two administrative regulations had been deferred from the December 2004 subcommittee meeting to allow the Cabinet to clarify provisions regarding family notification and the appeals process with the Protection and Advocacy representatives. The Department met with the Protection and Advocacy representatives and worked out language that was satisfactory to both sides.
Mr. Zeller stated that his agency wanted to withdraw its opposition to these two administrative regulations and he agreed with Dr. Davis' description of their agreement.
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.
911 KAR 2:200 & E. Coverage and payment for Kentucky Early Intervention Program services.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 2 to 6 to comply with the drafting and format requirements of KRS Chapter 13A; and (2) to amend Section 4 to specify the procedure if the records review team and IFSP team do not agree on a decision. Without objection, and with agreement of the agency, the amendments were approved.
Department for Community Based Services: Division of Policy Development: Child Welfare
922 KAR 1:360 & E. Private child care placement, levels, of care, and payment. Eugene Foster, Undersecretary for Children and Family Services, and Jason Moseley, Director, represented the Department.
922 KAR 1:420. Child fatality or near fatality investigations.
DEFERRED
GENERAL GOVERNMENT CABINET: Board and Commissions: Board of Examiners of Psychology
201 KAR 26:115. Definition of psychological testing.
201 KAR 26:145. Code of conduct.
201 KAR 26:155. Licensed psychologist: application procedures and temporary license.
201 KAR 26:165. Inactive status.
201 KAR 26:171. Requirements for supervision.
201 KAR 26:175. Continuing education.
201 KAR 26:180. Requirements for granting licensure as a psychologist by reciprocity.
201 KAR 26:190. Requirements for supervised professional experience.
201 KAR 26:230. Examinations.
201 KAR 26:280. Licensed psychological associate: application procedures and temporary license.
201 KAR 26:290. Licensed psychological practitioner: application procedures.
Kentucky Real Estate Appraisers Board
201 KAR 30:030. Types of appraisers in federally-related transactions; certification and licensure.
ENVIRONMENTAL AND PUBLIC PROTECTION CABINET: 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.
Office of Housing, Buildings and Construction: Electrical Inspectors
815 KAR 35:070 & E. Low-voltage installer certification.
OTHER BUSINESS:
Co-Chair Pullin stated that the President of the Senate had appointed Senator Alice Forgy Kerr to the subcommittee to replace Senator Damon Thayer. She welcomed Senator Alice Forgy Kerr to the subcommittee. With the departure of Senator Thayer, the position of Senate subcommittee co-chair needed to be filled. Senator Tapp made a motion, seconded by Senator Pendleton, to nominate Senator Roeding as the Senate Subcommittee Co-Chair. Senator Tapp made a second motion, seconded by Senator Pendleton, to close the nominations and that Senator Roeding be elected by voice vote. Without objection, it was so ordered.
The Subcommittee approved a motion made by Representative Bruce, seconded by Co-Chair Pullin, to send a letter thanking Senator Thayer for his service to the subcommittee both as a member and as the first Senate co-chair.
Subcommittee staff announced that the next subcommittee meeting will be tentatively scheduled for Tuesday, February 8, but the actual date and time was subject to the session schedule that had not been released yet.
The subcommittee adjourned at 11:50 a.m., until February 2005.