The March meeting of the Administrative Regulation Review Subcommittee was held on Wednesday, March 9, 2005, at 10:00 AM, in Room 149 of the Capitol Annex. Senator Richard "Dick" Roeding, 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 Jimmie Lee.
Guests: Michael Rodman, Kentucky Board of Medical Licensure; Linda Poliskie, Shelly Saffran, Denise Payne Wade, Real Estate Commission; Becky Klusch, Board of Physical Therapy; Amy Barker, Department of Corrections; Preston Lewis, Kevin Noland, Board of Education; Tina Marie Babbs, Kathleen Casper, Elizabeth Caywood, Shirley Eldridge, Jan Howell, Angela Kirkland, Jason Moseley, Colleen Ryall, Patti Silvers, Phyllis Sosa, Michelle Sytsma, Mike Weinrauch, Cabinet for Health and Family Services.
LRC Staff: Dave Nicholas, Emily Caudill, Donna Little, Laura Milam, Karen Howard, Sarah Amburgey, Jenifer Harrison, Emily Harkenrider, and Ellen Steinburg.
The Administrative Regulation Review Subcommittee met on Wednesday, March 9, 2005, and submits this report:
Administrative regulations reviewed by the Subcommittee:
General Government Cabinet: Boards and Commissions: Board of Medical Licensure
201 KAR 9:041. Fee schedule. Michael Rodman, Assistant Executive Director, represented the Board.
In response to a question by Senator Pendleton, Mr. Rodman stated that this administrative regulation was amended to establish a $100 fee for a physician to apply for an extension of time to complete continuing medical education requirements. The Board wanted to implement the new fee to deter physicians from requesting extensions. Co-Chair Pullin added that the legal profession had a similar fee and it served as a good deterrent.
201 KAR 9:176. Repeal of 201 KAR 9:175.
Real Estate Commission
201 KAR 11:011. Definitions for 201 KAR Chapter 11. Denise Payne Wade, Staff Attorney, Shelly Saffran, Director of Administration, and Linda Poliskie, Education Director, represented the Commission.
In response to a question from Co-Chair Pullin, Ms. Poliskie stated that the Commission was amending this group of administrative regulations so that they would comply with statutory changes from the 2004 Regular Session of the General Assembly.
In response to questions by Co-Chair Roeding, Ms. Saffran stated that the Commission would notify the realtors of the changes in these administrative regulations through their website, newsletter, and new license law manual and by notifying instructors.
In response to questions by Senator Tapp, Ms. Poliskie stated that the Commission had notified the realtors about the upcoming regulatory changes and their effect on real estate contracts through their newsletter. The Commission had suggested that the realtors not order excess copies of existing contract forms since they would need new forms once the regulatory changes went into effect. The Commission would allow an implementation period before they started enforcing the use of new forms.
A motion was made and seconded to approve the following amendments: to amend Section 1 to reinsert the definition of "prize" and insert definitions for "guaranteed sales plan" and "required disclosure." Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 11:030. License cancellation; reasons for. 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.
201 KAR 11:041. Repeal of 201 KAR 11:040.
201 KAR 11:045. Written offers to be submitted to owner-client - agreements to provide brokerage services - licensee duties. 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 Section 1 to comply with the drafting and format requirements of KRS Chapter 13A; and (3) to amend Section 2 to clarify that failure to comply with the administrative regulation would constitute gross negligence under KRS 324.160(4)(w). Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 11:062. Retention of brokers' records. 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.
201 KAR 11:105. Owner's consent and authorization. A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 3, 4, and 5 to comply with the drafting and format requirements of KRS Chapter 13A; and (2) to amend the advertising requirements in Section 3 so that they did not apply to property owned by a licensee, in conformity with KRS 324.117(4). Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 11:121. Improper conduct. A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 1 to comply with the drafting and format requirements of KRS Chapter 13A; (2) to amend Section 1(2) to reinsert more stringent inducement restrictions for agents and delete a list of acceptable inducements; (3) to amend Section 1(7) to more closely comply with requirements established by the Department of Housing and Urban Development (HUD); and (4) to add a new subsection 1(8) prohibiting a broker licensed in Kentucky from assisting an individual not licensed in Kentucky in practicing brokerage in the state. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 11:147. Procedure for license retention when sales associate released by broker. 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 11:180. Promotion of out-of-state property and time-shares, registration and prerequisites. In response to a question by Co-Chair Roeding, Ms. Poliskie stated that this administrative regulation did not apply to individuals with timeshares who exchanged or rented them. The registration requirements only applied to licensees or the companies that advertised the timeshares within Kentucky.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to insert a statutory citation; (2) to amend Sections 3 and 6 to delete $100 filing fees; (3) to add a new Section 6 to incorporate by reference several application forms; and (4) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 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.
201 KAR 11:250. Listing and purchase contracts - provisions required.
201 KAR 11:350. Seller's disclosure of property conditions form. In response to questions by Senator Tapp, Ms. Saffron stated that the seller's disclosure of property conditions form was amended to add a question regarding mold and to clarify the questions regarding sewers and roofs. If a seller was unsure about the presence of mold, the seller could mark unknown on the form. The seller was only expected to complete the form to the best of his or her ability.
In response to questions by Senator Tapp, Ms. Wade stated that the purpose of the seller's disclosure form was to facilitate discussion of issues, such as the presence of mold, between the seller and the buyer. Because the Commission did not have jurisdiction over private sellers, they could not penalize them if they did not complete the form honestly. However, if the sellers were dishonest in completing the form, the sellers could incur civil liability. Additionally, the seller completed the form for a specific time period so if a condition such as mold surfaced after that time period, the seller was not responsible for disclosing the condition.
A motion was made and seconded to approve the following amendments: to amend Section 2 to: (1) comply with the formatting requirements of KRS Chapter 13A; and (2) delete language that was no longer necessary. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 11:400. Agency disclosure requirements. A motion was made and seconded to approve the following amendments: to amend Section 1 to correct a minor drafting error. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 11:410. Broker duties pursuant to designated agency. A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to correct a minor drafting error. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 11:430. Procedure for criminal records background check - disciplinary action against licensees for acts committed before or during the application process. A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to delete language that was no longer needed; and (2) to amend Section 3 to: (a) comply with the drafting and formatting requirements of KRS Chapter 13A; and (b) delete subsection 9 which violated the provisions of KRS 324.160(6). Without objection, and with agreement of the agency, the amendments were approved.
Board of Physical Therapy
201 KAR 22:045 & E. Continued competency requirements and procedures. Becky Klusch, Executive Director, represented the Board.
201 KAR 22:070 & E. Requirements for foreign-education physical therapists.
Justice And Public Safety Cabinet: Office of the Secretary
501 KAR 6:999. Corrections secured policies and procedures. Amy Barker, Staff Attorney, represented the Cabinet.
Pursuant to KRS 61.810(1)(i) and (k), KRS 61.815(2), and KRS 197.025(6), the Subcommittee went into closed session to review this administrative regulation.
Education Cabinet: Kentucky Board of Education: Department of Education: Office of Learning and Support Services
704 KAR 7:120. Home/hospital instruction. Kevin Noland and Preston Lewis 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.
Cabinet For Health And Family Services: Department for Medicaid Services: Medicaid Services
907 KAR 1:025 & E. Payment for services provided by an intermediate care facility for individuals with mental retardation or a developmental disability, a dually-licensed pediatric facility, an institution for mental diseases, or a nursing facility with an all-inclusive rate unit. Angela Kirkland and Jan Howell represented the Department.
A motion was made and seconded to approve the following amendments: to amend Sections 3, 5, and 6 to correct typographical and punctuation errors. Without objection, and with agreement of the agency, the amendments were approved.
Department for Mental Health and Mental Retardation Services: Division of Mental Health and Substance Abuse: Kentucky Traumatic Brain Injury Trust Fund Board
908 KAR 4:030. Traumatic brain injury trust fund board. Colleen Ryall represented the Board.
In response to questions by Co-Chair Roeding, Ms. Ryall stated that by amending this administrative regulation to provide for termination and loss of benefits if the recipient did not access them within ninety (90) days, the Fund would serve more people and would have a shorter waiting list period. The amendments enabled the unused funds to be reallocated to a waiting recipient. The original recipient could prevent the reallocation by requesting an extension for good cause.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 2, 7, 8, 9, 11, 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.
Department for Community Based Services: Division of Policy Development: K-TAP, Kentucky Works, Welfare to Work, State Supplementation
921 KAR 2:015 & E. Supplemental programs for persons who are aged, blind, or have a disability. Jason Moseley, Director, and Elizabeth Caywood, Assistant Director, 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, 4, 12, and 14 to comply with the drafting and format requirements of KRS Chapter 13A and to clarify that there was a verification, rather than certification, procedure. Without objection, and with agreement of the agency, the amendments were approved.
Child Welfare
922 KAR 1:490 & E. Background checks for foster and adoptive parents and reporting requirements. In response to questions by Representative Lee, Ms. Caywood stated that the Cabinet paid for the background checks required by this administrative regulation. Additionally, if a new person came into a foster home, the home's contract with the Cabinet would require the home to report the individual to the Cabinet. The Cabinet also supervised the homes frequently. If a foster child was present in the home, a case worker made a monthly face to face visit.
In response to questions by Co-Chair Roeding, Mr. Moseley stated that this administrative regulation's main impact on foster and adoptive families was the background check requirements. The Cabinet had already notified the personal and family care homes of the new requirements when the earlier emergency version of this administrative regulation went into effect.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph and Section 1 to correct statutory citations; and (2) to amend 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.
The Subcommittee and the promulgating agencies agreed to defer consideration of the following administrative regulations to the next meeting of the Subcommittee:
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.
Justice And Public Safety Cabinet: Office of the Secretary
501 KAR 6:020. Corrections policies and procedures.
Environmental And Public Protection Cabinet: Department for Natural Resources: Division of Oil and Gas Conservation: Coal Bed Methane
805 KAR 9:030. Surety bonds; requirements, cancellation.
805 KAR 9:050. Gas storage reservoirs; drilling, plugging in vicinity.
805 KAR 9:070. Directional and horizontal wells.
805 KAR 9:090. Production reporting.
The subcommittee adjourned at 10:40 a.m., until April 12, 2005.