The December meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, December 13, 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 Forgy Kerr, Joey Pendleton, and Gary Tapp; Representatives James E Bruce, Jimmie Lee, and Jon David Reinhardt.
Guests: Representative Susan Westrom; Kathryn Dunnigan, Sarah Johnson, Board of Elections; Donald S. Guier, Eddie Mattingly, Gary Morris, Department of Revenue; Mark Brengelman, Michael Sanders, Board of Registration for Professional Geologists; John Parrish, Division of Occupations and Professions; Gerald Clemons, Board of Licensure for Massage Therapy; Ellen Benzing, Jon Gassett, Cara Jarrell, Benjy Kinman, Department of Fish and Wildlife Resources; Sean Alteri, Lona Brewer, John Lyons, Division of Air Quality; Amy Barker, Department of Corrections; Steve Lynn, Kentucky Law Enforcement Council; May Saisman Buckley, William M. Heffron, LaDonna Koebel, Libby Mills, Richard Thomas, Rodney Young, Department of Juvenile Justice; Gail Robinson, Department of Public Advocacy; Dana Fugazzi, Major Glynn Powers, Duane Thomas, Transportation Cabinet; John Fields, Kevin Noland, Board of Education; Robert Tarvin, School Facilities Construction Council; Sheila C. Lowther, James Martin, Carla H. Montgomery, Office of Workers' Claims; Carrie Banahan, Office of Insurance; Jim Gallagher, Lisa Underwood, Kentucky Horse Racing Authority; Darrell Haire, Gary Stevens; Jockeys Guild; Arthur Hancock; Owners and Breeders; Mr. Micheal Judy; Dr. S. Loeded (et al.); Fran Hawkins, Trish Howard, Nancy Sullivan; Cabinet for Health and Family Services; Glen Bryant, and Linda Harney; Department of Mental Health and Mental Retardation; Frank Becker, Martin Maline, Thomas Tobin, Kentucky HBPA; Jorge Colon, Rick A. Fischer, DVM, Robert G. Stallings, Phil Tripp, DVM, Veterinarians.
LRC Staff: Dave Nicholas, Emily Caudill, Donna Little, Laura Milam, Karen Howard, Sarah Amburgey, Emily Harkenrider, and Rosyln Hendrickson.
The Administrative Regulation Review Subcommittee met on Tuesday, December 13, 2005, and submits this report:
State Board of Elections: Help America Vote Act 2002
31 KAR 6:030 & E. Uniform definition of a vote. Sarah Ball Johnson, Executive Director, and Katie Dunnigan, 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 and delete citations; (2) to amend Section 1(2) to cite to the statutory definition; (3) to amend Section 2 to state that a ballot may be paper or electronic; 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.
Finance and Administration Cabinet: Department of Revenue: Office of Processing and Enforcement: General Administration
103 KAR 1:070. Uniform collection procedures. Eddie Mattingly, Gary Morris, and Donald Guier 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.
Office of Income Taxation: Corporation License Tax
103 KAR 20:010. Definition of gross income. 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.
103 KAR 20:020. Items of capital for corporation license tax. A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to add authorizing language; (2) to amend Section 1(4) to cite to the statutory definition, as required by KRS 13A.222(4)(d); (3) to amend Section 2 to state that the financial statement reflecting book value may be composed of a single general ledger account or multiple accounts; 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.
General Government Cabinet: Board of Registration for Professional Geologists: Board
201 KAR 31:010. Fees. John Parrish, Director, Occupations and Professions, Mark Brengelman, Assistant Attorney General, Michael Sanders, Chairman, and Doug Reynolds, Vice Chairman, represented the Board.
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 Section 3 to insert language describing that section. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 31:040. Examinations. 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; and (3) to amend Sections 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.
201 KAR 31:050. Renewals. 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 3 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.
201 KAR 31:060. Code of professional conduct. 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 define the term "registrant" to bring the administrative regulation into compliance with KRS 322A.100; and (3) to amend Sections 2 to 5 to properly reference the term "registrant." Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 31:080. Geologist-in-training. A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation; and (2) to amend Sections 1 to 5 to: (a) comply with the drafting and format requirements of KRS Chapter 13A; and (b) delete language that repeated or modified statutory language or exceeded the statutory authority of the agency. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 31:090. Complaint management process. A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to define the term "registrant" to bring the administrative regulation into compliance with KRS 322A.100; and (2) to amend Sections 2 to 5 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Board of Licensure for Massage Therapy: Board
201 KAR 42:010. Goals for massage therapy sessions. Gerald Clemons, John Parrish, Director, Occupations and Professions, and Pam Jacobs, American Massage Therapy Association, represented the Board.
A motion was made and seconded to approve the following amendment: to amend Section 1 to insert clarifying language. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 42:030. Licensee's change of name, home address, or place of business.
201 KAR 42:040. Renewal and reinstatement procedures. A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to delete ambiguous language; (2) to amend Section 4 to delete language not authorized by statute; and (3) to amend Sections 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 42:050. Complaint procedure and disciplinary action. A motion was made and seconded to approve the following amendment: to amend the STATUTORY AUTHORITY paragraph to correct a statutory citation. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 42:060. Code of ethics, and standards of practice for massage therapists. A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correct a statutory citation; and (2) 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.
201 KAR 42:110. Continuing education requirements. A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct a statutory citation; and (2) 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.
Commerce Cabinet: Department of Fish and Wildlife Resources: Fish
301 KAR 1:155. Commercial fishing requirements. Jon Gassett, Commissioner, Cara Jarrell, General Counsel, and Benjy Kinman, Director, represented the Department.
Hunting and Fishing
301 KAR 3:022. License, tag and permit fees. In response to a question from Co-Chair Roeding, Commissioner Gassett stated that this amended administrative regulation established a $500 fee for a commercial shovelnose sturgeon permit. The fee was comparable to those in surrounding states that share water bodies with Kentucky.
Environmental and Public Protection Cabinet: Department for Environmental Protection: Division of Air Quality: National Ambient Air Quality Standards
401 KAR 51:150. NOx requirements for stationary internal combustion engines. Sean Alteri, Regulation Development Section Supervisor, John Lyons, Director, and Lona Brewer, Manager, represented the Division.
In response to a question by Representative Bruce, Mr. Lyons stated that this administrative regulation did not apply to farm machinery.
In response to a question by Co-Chair Roeding, Mr. Lyons stated that brake horsepower was a sizing standard for large combustion engines.
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 13A; (2) to amend Section 1 to add the definition for "projected brake horsepower hours"; and (3) to amend Sections 4 and 5 to replace "projected operating hours" with "projected brake horsepower hours." Without objection, and with agreement of the agency, the amendments were approved.
401 KAR 51:160. NOx requirements for large utility and industrial boilers. 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.
Justice and Public Safety Cabinet: Department of Corrections: Office of the Secretary
501 KAR 6:020. Corrections policies and procedures. Amy Barker, 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.
501 KAR 6:030. Kentucky State Reformatory. A motion was made and seconded to approve the following amendments: (1) to amend Section 1 and the material incorporated by reference to comply with the drafting and format requirements of KRS Chapter 13A; (2) to delete several policies from the material incorporated by reference because they were obsolete or unnecessary under KRS 13A.010(2)(a); and (3) to amend KSR 06-00-03 to require determinations of open record requests to be within five (5) working days in accordance with KRS 197.025(7). Without objection, and with agreement of the agency, the amendments were approved.
501 KAR 6:060. Northpoint Training Center. A motion was made and seconded to approve the following amendments: (1) to amend Section 1 and the material incorporated by reference to comply with the drafting and format requirements of KRS Chapter 13A; and (2) to delete several policies from the material incorporated by reference because they were obsolete or unnecessary under KRS 13A.010(2)(a). Without objection, and with agreement of the agency, the amendments were approved.
501 KAR 6:130. Western Kentucky Correctional Complex. A motion was made and seconded to approve the following amendments: (1) to amend Section 1 and the material incorporated by reference to comply with the drafting and format requirements of KRS Chapter 13A; and (2) to delete several policies from the material incorporated by reference because they were obsolete or unnecessary under KRS 13A.010(2)(a). Without objection, and with agreement of the agency, the amendments were approved.
Kentucky Law Enforcement Council: Council
503 KAR 1:180. Firearms qualification for certified peace officers. Steve Lynn, Counsel, represented the Council.
Department of Juvenile Justice: Child Welfare
505 KAR 1:110. Department of Juvenile Justice Policies and Procedures Manual: program services. LaDonna Koebel, Counsel, Bill Heffron, Chief of Mental Health Services, and Rodney Young, Psy.D., Director, Mental Health Services, represented the Department. Gail Robinson, Counsel, Juvenile Branch, Department of Public Advocacy, appeared in opposition to these administrative regulations.
In response to questions by Representative Lee, Ms. Koebel, Mr. Heffron, and Dr. Young stated that the Department's policies and procedures authorized the use of polygraphs in the sex offender treatment program only. The use of polygraphs resulted in more effective treatment because they encouraged the program participants to be truthful and forthcoming. Additionally, they were already being used by the Department of Corrections in the adult sex offender treatment program.
505 KAR 1:120. Department of Juvenile Justice Policies and procedures Manual: health and safety services.
505 KAR 1:140. Department of Juvenile Justice Policies and Procedures Manual; detention services.
Transportation Cabinet: Division of Motor Carriers
601 KAR 1:005 & E. Safety administrative regulation. Dana Fugazzi, Counsel, Major Glynn Powers, Kentucky Vehicle Enforcement, and Duane Thomas, Director, represented the Cabinet.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to delete a citation; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to add a statement explaining how the administrative regulation differed from the federal requirements; and (3) to amend Sections 2, 3, 5, and 10 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Department of Highways: Traffic
603 KAR 5:050. Uniform traffic control devices. A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 3 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
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 represented the Board.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to 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, as required by KRS 13A.220; (3) to amend Sections 1, 2, 3, 5, and 6 to comply with the drafting and format requirements of KRS Chapter 13A; and (4) to amend Section 1(5) to specify that for sales to middle and high school students (grades six through twelve), the volume size of a beverage shall not exceed twenty ounces. Without objection, and with agreement of the agency, the amendments were approved.
Office of Instruction
704 KAR 3:325. Effective Instructional Leadership Act. A motion was made and seconded to approve the following amendments: to amend Sections 1 and 3 to correct typographical errors and to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Finance and Administration Cabinet: School Facilities Construction Commission: Procedures
750 KAR 1:010. Commission procedures. Bob Tarvin, Executive Director, represented the Cabinet.
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, as required by KRS 13A.220; (3) to amend Section 7 to specify what items shall be considered supplies (and thus not included in the construction costs); and (4) to amend Sections 1, 2, 3, 4, 5, 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.
Environmental and Public Protection Cabinet: Department of Labor: Office of Workers' Claims
803 KAR 25:250 & E. Mediation of medical disputes. Carla Montgomery, Counsel, represented the Office.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and 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.
Department of Public Protection: Office of Insurance: Division of Health Insurance Policy and Managed Care: Health Insurance Contracts
806 KAR 17:470. Data reporting to an employer-organized association health benefit plan. Carrie Banahan, Deputy Executive Director, represented the Office.
Department of Public Protection: Kentucky Horse Racing Authority: Thoroughbred Racing
810 KAR 1:018 & E. Medication; testing procedures; prohibited practices. Jim Gallagher, Executive Director, and Lisa Underwood, Deputy Commissioner, represented the Authority. Senator Damon Thayer; Jorge Colon, DVM; Darrell Haire, Interim National Manager, Jockeys Guild; and Arthur Hancock, Thoroughbred Owner and Breeder, appeared in favor of this administrative regulation. Dr. Colon also submitted written comments in support of this administrative regulation. Frank Becker, General Counsel, Kentucky Horsemen's Benevolent & Protective Association (HBPA); and Robert Stallings, Counsel for equine veterinarians, appeared in opposition to this administrative regulation.
In response to questions by Senator Tapp, Mr. Gallagher stated that this administrative regulation limited the application of race day medications. The limitation was a significant change for Kentucky, but had already been instituted by thirty-five (35) of the thirty-seven (37) other racing states. In developing the new policy, the Authority sent out a questionnaire to a dozen veterinarians practicing at Kentucky racetracks.
Presiding Co-Chair Roeding granted Representative Westrom permission to ask questions as a non-ARRS member legislator. In response to questions by Representative Westrom, Mr. Hancock stated that the veterinarian rather than the owner or trainer determined whether a horse was treated during training. Additionally, because veterinarians were now participating in the daily care of horses (unlike in years past), owners are becoming concerned that they are too involved.
In response to questions by Representative Westrom, Mr. Becker stated that trainers, through the HBPA, participated in the public hearing and written comment process for this administrative regulation. They had provided specific withdrawal times and medication thresholds to the Authority.
In response to questions by Senator Pendleton, Mr. Becker stated that the HBPA was opposed to the technical amendments to this administrative regulation because they eliminated the threshold amounts and withdrawal times for therapeutic medications. Because current testing methods are so accurate, those provisions are crucial for fair enforcement. Subcommittee staff explained that the amendments deleted indefinite language that violated KRS Chapter 13A. The amendments left in place the specific thresholds already established by the administrative regulation. The Authority also retained its ability to amend the administrative regulation in the future to include additional thresholds as they are determined.
In response to questions by Representative Lee, Mr. Gallagher stated that no state has an administrative regulation that incorporates thresholds and withdrawal times for all equine medications. The Authority has contemplated creating threshold amounts and withdrawal guidelines for the fifty most commonly used equine medications but it will be complicated and time-consuming to complete. The Authority believes the administrative regulation to be enforceable as currently drafted.
Ms. Underwood agreed to defer consideration of this administrative regulation until the next meeting of the Subcommittee. Representative Bruce made a motion that the administrative regulation proceed through the administrative regulation process. This motion was seconded and approved with Representative Lee and Senator Pendleton voting against the motion.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to correct statutory citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation; (3) to amend Section 1 to clarify definitions and add a new definition for "split sample"; (4) to amend Section 2 to include standards for determining prohibited substances; (5) to amend Section 19(1) to state that the prohibition of possession or use of a substance which could endanger a horse or rider applies to a licensee, or his designee or agent, and to a horse within a nonpublic area; (6) to amend Section 19(2) to state that prior permission to use a substance that has never been approved by the FDA shall be determined after consultation with the Equine Drug Research Council; (7) to amend Sections 3, 12, 16, 19, and 22 to add or update necessary forms; (8) to amend Sections 3, 6, 10, 11, 13, 18, 19, and 20 to delete arbitrary provisions relating to drug testing methods and prohibited practices and insert language which clarifies standards and requirements; (9) to amend Section 7 to delete references to a "Furosemide list" which is no longer used; and (10) to amend throughout 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: Division of Adult and Child Health Improvement: Maternal and Child Health
902 KAR 4:040 & E. Special Supplemental Nutrition Program for Women, Infants and Children (WIC). Fran Hawkins, Branch Manager, and Nancy Sullivan, Section Supervisor, represented the Division.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1(9) to establish criteria used to identify high risk vendors; and (2) to amend Sections 5, 8, 9, 10, 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.
Department for Mental Health and Mental Retardation Services: Division of Administration and Financial Management: Institutional Care
908 KAR 3:050. Per diem rate pursuant to KRS 210.710 to 210.760. Linda Harney, Deputy Commissioner, and Glen Bryant represented the Department.
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; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 1 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
The following administrative regulations were deferred until the next meeting of the Subcommittee:
Finance and Administration Cabinet: Office of the Secretary: Office of the Controller: Travel Expense and Reimbursement
200 KAR 2:006 & E. Employees' reimbursement for travel.
Office of the Secretary: Purchasing
200 KAR 5:021. Manual of policies and procedures.
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.
Governor's Office of Agricultural Policy: Kentucky Agricultural Finance Corporation
202 KAR 9:020. Linked Deposit Investment Program.
Justice and Public Safety Cabinet: Kentucky Law Enforcement Council: General Training Provision
503 KAR 3:050. Telecommunications academy: graduation requirements; records.
503 KAR 3:070. Telecommunications academy (non-CJIS).
Education Cabinet: Department for Workforce Investment: Office of Career and Technical Education: Personnel System for Certified and Equivalent Employees
780 KAR 3:020. Compensation plan.
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: Health Insurance Contracts
806 KAR 17:310. Prompt payment of claims reporting requirements.
806 KAR 17:360. Prompt payment of claims.
Department of Public Protection: Kentucky Horse Racing Authority: Thoroughbred Racing
810 KAR 1:028 & E. Disciplinary measurements and penalties.
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 12:30 p.m. until January 2006.