The November meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, November 8, 2005, at 10:00 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, Jimmie Lee, and Jon David Reinhardt.
Guests: Sarah Jackson, Connie Verrill, Kentucky Registry of Election Finance; Tom Howard, Angela Robinson, Finance and Administration Cabinet; Lloyd Vest, Board of Medical Licensure; Nathan Goldman, Board of Nursing; Lanny Arnold, Mark Farrow, Department of Agriculture; Rob Daniel, Bruce Scott, Christopher T. Short, Division of Waste Management; Amy Barker, Jason Hall, Carlton Shier, Justice and Public Safety Cabinet; Kevin Noland, Paul McElwain, Department of Education; Philip J. Anderson, Steve Morrison, Corden Porter, Leslie E. Renkey, Steve Sparrow, Chuck Stribling, David Stumbo, Department of Labor; Sue E. Barber, Carla H. Montgomery, Joel D. Zakem, Office of Workers' Claims; Guy Delius, Clay Hardwick, Ken Spach, Department for Public Health; Chris Stewart, Stuart Owen, Nici Gaines, Angela Kirkland, Medicaid; Elizabeth Caywood, David Gayle, Mike Grimes, Jason Moseley, Department for Community Based Services; Bart Baldwin, Children's Alliance; Roy Potts, Coca-Cola Enterprises; John Cooper, Coke U.S.A. and Coke Enterprises; Carolyn Dennis, Kentucky PTA; and D. Ray Gillespie, Kentucky Beverage Association.
LRC Staff: Dave Nicholas, Emily Caudill, Donna Little, Laura Milam, Karen Howard, Sarah Amburgey, Emily Harkenrider, and Rosyln Hendrickson.
Administrative Regulations Reviewed by the Subcommittee:
DEPARTMENT OF STATE: Registry of Election Finance: Reports and Forms
32 KAR 1:020 & E. Appointment of campaign treasurer and optional request for reporting exemption. Sarah Jackson, Executive Director, and Connie Verrill, General Counsel, represented the Department.
A motion was made and seconded to approve the following amendments: to amend Section 3 to delete superfluous language, as required by KRS 13A.222(4)(a). Without objection, and with agreement of the agency, the amendments were approved.
32 KAR 1:030 & E. Election Finance statement forms; campaign contribution or expenditures in excess of $3,000.
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(4)(f); and (2) to amend Sections 1 and 2 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
32 KAR 1:041E. Repeal of 32 KAR 1:040 and 1:180.
32 KAR 1:050 & E. Political committee registration. A motion was made and seconded to approve the following amendments: (1) to amend the title to accurately reflect the content of the administrative regulation; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220(4)(f); 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.
32 KAR 1:060 & E. Report and contributions by a contributing organization. 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(4)(f); 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.
32 KAR 1:070 & E. Waiver from filing candidate's report. 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(4)(f); (2) to amend Section 2 to comply with the drafting and format requirements of KRS Chapter 13A; and (3) to amend Section 2 to incorporate by reference the appropriate form. Without objection, and with agreement of the agency, the amendments were approved.
32 KAR 1:080 & E. Report of an independent expenditure. 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(4)(f); 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.
32 KAR 1:100 & E. Slate software. A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to include a statutory citation; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 2 to delete superfluous language, as required by KRS 13A.222(4)(a). Without objection, and with agreement of the agency, the amendments were approved.
32 KAR 1:190 & E. Forms for gubernatorial slates of candidates and related filers. A motion was made and seconded to approve the following amendments: to amend Section 3 to delete superfluous language, as required by KRS 13A.222(4)(a). Without objection, and with agreement of the agency, the amendments were approved.
32 KAR 2:070 & E. Fundraiser registration. A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to include 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 Sections 1 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.
32 KAR 2:091E. Repeal of 32 KAR 2:090 and 32 KAR 2:140.
Practice and Procedure
32 KAR 2:170 & E. In-kind contributions. 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(4)(f); 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.
32 KAR 2:220 & E. Electronic reporting file and test file compliance procedure. A motion was made and seconded to approve the following amendments: (1) to amend Sections 1 and 2 to comply with the drafting and format requirements of KRS Chapter 13A; and (2) to amend Section 3 to delete superfluous language, as required by KRS 13A.222(4)(a). Without objection, and with agreement of the agency, the amendments were approved.
FINANCE AND ADMINISTRATION CABINET: Office of the Secretary: Office of the Controller: Kentucky Gas Pipeline Authority
200 KAR 26:010 & E. KGPA Operating procedures. Tom Howard, Executive Director, represented the Office.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add citations; (2) to amend Sections 2 and 3 to change the term "industrial revenue bonds" to simply "revenue bonds"; (3) to amend Section 3 to add evaluation criteria; (4) to amend Section 5 to delete language that repeats the provisions of KRS 353.776; and (5) 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 of Medical Licensure: Board
201 KAR 9:021. Medical and osteopathic schools approved by the board; denial or withdrawal of approval; application of KRS 311.271; postgraduate training. Lloyd Vest, General Counsel, represented the Board.
Board of Nursing: Board
201 KAR 20:215. Continuing competency requirements. Nathan Goldman, General Counsel, represented the Board.
DEPARTMENT OF AGRICULTURE: Fuel Dispensers
302 KAR 70:020E. Temporary Suspension for Retail Fuel Dispensers. Mark Farrow, Deputy Commissioner, and Lanny Arnold, Assistant Director, represented the Department.
In response to questions by Co-Chair Roeding, Mr. Farrow stated that this administrative regulation did not affect the price consumers were charged for gasoline. Because older gasoline pumps were not able to go over $2.999 per gallon, this administrative regulation allowed them to engage in half-gallon pricing.
In response to questions by Representative Reinhardt, Mr. Farrow stated that without this administrative regulation, those individuals who used the older pumps would be faced with the decision of shutting down their pumps or violating the law. This administrative regulation gave them a third option of complying with the law by allowing half-gallon prices while requiring that the older pumps be modified by October 15, 2005 to handle prices over $3 per gallon. Mr. Arnold stated that currently there were 100 stations, mostly boat docks and family-owned stores, which had the older pumps.
ENVIRONMENTAL AND PUBLIC PROTECTION CABINET: Department for Environmental Protection: Division of Waste Management: Underground Storage Tanks
401 KAR 42:320. Hearings. Bruce Scott, Director, Rob Daniel, Manager, and Chris Short, Attorney, represented the Department.
In response to questions by Representative Lee, Mr. Short stated that there were no practical differences between requiring that administrative hearings comply with KRS Chapter 13B or 224. The appellee would still receive trial-type hearings in both situations. The main difference is that under the current process, the hearing officers are from the Attorney General's office, and under this administrative regulation, they would be from the Department. Mr. Scott stated that the change was required by Senate Bill 41, enacted during the 2005 Regular Session of the Kentucky General Assembly, and the change would not diminish an individual's appeal rights.
In response to questions by Co-Chair Roeding, Mr. Scott stated that the Department was in the process of streamlining the administrative regulations affected by the merger of the petroleum storage tank and underground storage tank offices. A future administrative regulation would address the claim payment objections that are frequently raised during the hearing process.
In response to a question by Representative Reinhardt, Mr. Daniel stated that the Department was aware of 134,000 active underground storage tanks located at 4,500 facilities. He will submit information relating to the location of those tanks.
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.
401 KAR 42:326. Repeal of 401 KAR 42:325.
JUSTICE AND PUBLIC SAFETY CABINET: Department of Corrections: Office of the Secretary
501 KAR 6:040. Kentucky State Penitentiary. Carlton Shier, Staff Attorney, and Jason Hall, Staff Attorney, represented the Department.
A motion was made and seconded to approve the following amendments: to amend Section 1 and the policies incorporated by reference for clarification 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.
501 KAR 6:140. Bell County Forestry Camp. A motion was made and seconded to approve the following amendments: to amend Section 1 and the policies incorporated by reference for clarification 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.
501 KAR 6:150. Eastern Kentucky Correctional Complex. A motion was made and seconded to approve the following amendments: to amend Section 1 and the policies incorporated by reference for clarification 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.
501 KAR 6:170. Green River Correctional Complex. A motion was made and seconded to approve the following amendments: to amend Section 1 and the policies incorporated by reference for clarification 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.
ENVIRONMENTAL AND PUBLIC PROTECTION CABINET: Department of Labor: Division of Occupational Safety and Health Compliance: Division of Occupational Safety and Health Education and Training: Occupational Safety and Health
803 KAR 2:412. Fall protection. Chuck Stribling, Safety Standards Specialist, Steve Sparrow, Director, and Steve Morrison, Executive Director, represented the Department.
In response to questions by Senator Tapp, Mr. Sparrow stated that enforcement would begin as soon as the administrative regulation became effective, as its standards are less stringent than the current standards. Mr. Morrison stated that the Division of Education and Training was developing training programs that would be conducted in December, January, and February to educate home builders about the changes.
Co-Chair Roeding stated that he wanted the department to track this administrative regulation's effect on the number of residential construction injuries and workers compensation claims.
A motion was made and seconded to approve the following amendments: (1) to amend the agency notation to reflect the department's reorganization; (2) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to correct statutory citations; (3) 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; (4) to amend Section 1 to add definitions for terms used in the administrative regulation; (5) to amend Section 3 to more clearly state the requirements for fall protection; and (6) to amend Sections 1 to 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.
Office of Workers' Claims: Office of Workers' Claims
803 KAR 25:009 & E. Procedure for adjustment of coal workers' pneumoconiosis claims. Carla Montgomery, General Counsel, Sue Barber, Division Director, and Joel Zakem, Attorney, represented the Office.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to correct statutory citations; (2) to amend Sections 2, 4, and 9 to comply with the drafting and format requirements of KRS Chapter 13A; and (3) to amend Sections 4 and 9 to delete the incorporation by reference of the ILO form because it is specifically required by statute. Without objection, and with agreement of the agency, the amendments were approved.
803 KAR 25:089. Workers' Compensation Medical Fee Schedule for Physicians.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Medicaid Services: Division of Long Term Care and Community Alternatives: Medicaid Services
907 KAR 1:022 & E. Nursing facility services and intermediate care facility for individuals with mental retardation or a developmental disability services. Angela Kirkland, Director, Stuart Owen, Regulation Coordinator, Chris Stewart, and Nici Gaines, represented the Department.
A motion was made and seconded to approve the following amendments: to amend Sections 2, 4, and 11 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 1:061 & E. Payments for ambulance transportation. A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correct statutory citations; and (2) to amend Sections 1, 2, and 3 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 1:604 & E. Recipient cost-sharing. 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 1, 3, and 4 to comply with the drafting requirements of KRS Chapter 13A; and (3) to amend Section 3 to add to the list of providers for whom a $2 copayment per recipient per visit applies an optometrist for a general ophthalmological service. 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 2:017. Kentucky Works supportive services. Jason Moseley, Director, and Elizabeth Caywood, Assistant Director, 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.
Child Welfare
922 KAR 1:540. Registration of a Foreign Adoption. A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph and the NECESSITY, FUNCTION, AND CONFORMITY paragraph to add statutory citations; and (2) to amend Section 5 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Adult Services
922 KAR 5:040. Standards for state-funded domestic violence shelters. A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph and Section 3(2)(f) to replace a repealed statutory citation with the correct citation; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 3, 4, 6, 7, and 8 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
922 KAR 5:050. Funding requirements for domestic violence shelters. 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 the RELATES TO paragraph and 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.
The following administrative regulations were deferred to the next meeting of the Subcommittee:
GENERAL GOVERNMENT CABINET: Real Estate Commission: Board
201 KAR 11:011 & E. Definitions for 201 KAR Chapter 11.
201 KAR 11:121 & E. Improper conduct.
Board of Nursing: Board
201 KAR 20:280. Standards for prelicensure registered nurse and practical nurse programs. Nathan Goldman, General Counsel, represented the Board.
In response to questions by Co-Chair Roeding, Representative Lee, and Co-Chair Pullin, Mr. Goldman stated that this administrative regulation was a companion administrative regulation to 201 KAR 20:240, which was off the agenda because of the public hearing and comment period process. 201 KAR 20:240 increased the application fee for programs of nursing. Because the two administrative regulations cross-referenced each other, he agreed to a request from the Subcommittee to defer consideration of 201 KAR 20:280 until the December meeting.
TRANSPORTATION CABINET: Department of Highways: Traffic
603 KAR 5:050. Uniform traffic control devices.
EDUCATION CABINET: Board of Education: Department of Education: Food Services Program
702 KAR 6:090. Minimum nutritional standards for foods and beverages available on public school campuses during the school day; required nutrition and physical activity reports. Kevin Noland, Deputy Commissioner, represented the Board. Carolyn Dennis, Kentucky State PTA Health Commissioner, appeared in support of this administrative regulation. Roy Potts, Coca-Cola Enterprises, John Cooper, Coke U.S.A. and Coca-Cola Enterprises, and Ray Gillespie, Kentucky Beverage Association, appeared in favor of increasing the beverage fluid ounce limit from seventeen ounces to twenty ounces.
In response to questions by Senator Kerr, Mr. Noland stated that this administrative regulation implemented Senate Bill 172, enacted during the 2005 Regular Session of the Kentucky General Assembly. That legislation directed the Kentucky Board of Education to establish standards for foods and beverages available on public school campuses and this administrative regulation was the result of months of work with the public and interested parties to develop those standards. The board attempted to establish nutritional standards in line with the federal nutritional mandates while balancing the varied, and at times, conflicting constituent interests. Previously, the board agreed to increase from sixteen to seventeen the fluid ounce limit for beverages sold in school vending machines, canteens, cafeterias, and stores. Additionally, the board agreed to change the sodium and caffeine restrictions which allowed diet soft drinks to be acceptable. He believed that further increasing the drink limit to twenty ounces would represent a policy directive that should come from the General Assembly.
Ms. Dennis stated that this administrative regulation represented consensus and compromise from the Kentucky Board of Education. The administrative regulation was approved by ten of the board members, with the eleventh person wanting the requirements to be more restrictive than those included in this administrative regulation.
Mr. Potts stated that he represented more than 1,000 employees who, while they were generally in favor of this administrative regulation, wanted a change in the allowed package size for middle and high schools. Currently, 2 brands of drink could be sold with the seventeen ounce limit; if the limit were increased to twenty ounces, 13 brands of drink would be sold. Vending machines are not set up to vend the 16.9 ounce package size.
Mr. Cooper stated that this debate involved a practical concern as to what products can and cannot be vended. If choices are limited too much, students will choose to purchase products from convenience stores instead of the school vending machines.
In response to a question by Representative Bruce, Mr. Gillespie stated that Pepsi and the other bottlers in the association agreed with Coca-Cola's recommendation to increase the size limit.
In response to questions by Co-Chair Roeding, Mr. Noland stated that the beverages were not just sold in vending machines but also in school stores and canteens. The board's decision to limit the beverage size was within the board's statutory authority. The vending machines could be reslotted to vend 16.9 ounce bottles. The board wanted the focus to remain on nutrition.
In response to questions by Co-Chair Pullin, Ms. Dennis stated it was important to teach students about portion size and control. Because eight ounces represents a typical beverage serving size, a twenty ounce drink would equal 2.5 servings.
In response to a question by Senator Tapp, Mr. Potts stated that all the vending machines in public schools would need to be changed if the twenty ounce bottles were not allowed.
In response to questions by Representative Reinhardt, Mr. Potts stated that the companies would need to buy shims to modify the existing vending machines and that even with the shims, there would be frequent jams. Vending machines were not set up to dispense 16.9 ounce bottles. The bottles were preferable to cans because they could be resealed and had less spoilage.
In response to a question by Co-Chair Pullin, Mr. Noland stated that he would agree to defer this administrative regulation so the board could reconsider the beverage size limit at its December 8 meeting, although he did not think the board would agree to further changes.
With agreement of the agency, the Subcommittee voted six to two to defer this administrative regulation.
FINANCE AND ADMINISTRATION CABINET: School Facilities Construction
Commission: Procedures
750 KAR 1:010. Commission procedures.
ENVIRONMENTAL AND PUBLIC PROTECTION CABINET: Department of Public Protection: Office of Insurance: Agents, Consultants, Solicitors and Adjusters
806 KAR 9:070. Examinations.
806 KAR 9:220. Continuing education.
806 KAR 9:310. Viatical settlement broker license.
Life Insurance and Annuity Contracts
806 KAR 15:050. Reporting and general requirements for viatical settlement providers and brokers.
Division of Health Insurance Policy and Managed Care
806 KAR 17:470. Data reporting to an employer-organized association health benefit plan.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Public Health: Division of Adult and Child Health Improvement: Maternal and Child Health
902 KAR 4:030 & E. Newborn screening for inborn errors of metabolism and other inherited disorders known as Newborn Screening Program.
The subcommittee adjourned at 11:35 a.m. until Tuesday, December 13, 2005 at 10:00 a.m.