The Administrative Regulation Review Subcommittee met on Tuesday, August 14, 2007, at 9:00 AM, in Room 154 of the Capitol Annex. Senator Dick Roeding, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Dick Roeding, Co-Chair; Representative Robert R. Damron, Co-Chair; Senators Alice Forgy Kerr, Joey Pendleton, and Gary Tapp; Representatives Danny Ford, Jimmie Lee, and Ron Weston.
Guests: Senator Tim Shaughnessy, Becky Gilpatrick, Melissa Justice, Kentucky Higher Education Assistance Authority; Kathryn Dunnigan, Sarah Johnson, State Board of Elections; William Hanes, Eric Wampler, Kentucky Retirement Systems; Tim Thomas, John Covington, Kentucky Infrastructure Authority; Eric Clark, Kentucky Board of Dentistry; Garvis Campbell, Karen Howard, Justice and Public Safety Cabinet; Darren Bilberry, Larry Boucher, Brigid DeVries, Kevin Noland, Julian Tackett, Kevin Brown, Larry Taylor, Kentucky Board of Education; Rick Burtelson, Kentucky State Board on Electric Generation and Transmission Siting; Kathy Adams, Elizabeth Caywood, Justin Dearinger, David Gayle, Cabinet for Health and Family Services; Charles Atinay, Rick Jensen, Fayette County Public Schools; Bart Baldwin, Children's Alliance; Tim Greener, Christian Academy of Louisville; C. Ray Hall, Courier Journal; Ray Hildebrand, Diocese of Covington; Malicia Hitch, Heidi Schussler, Protection and Advocacy; Jim Mattingly Diocese of Owensboro Catholic Schools; John Medley Archdiocese of Louisville; Ed Schoenbaechler, Kentucky Non-Public Schools Commission; Wilson Sears, Public Schools; Leisa Speer, Archdiocese Of Louisville; Alexandra Thurstone, Kentucky Non-Public Schools Commission; Michael Wloswski, Lafayette High School Athletics; Teresa Combs, Kentucky School Boards Association; Betty Muntz, Kentucky Council of Administration for Special Education.
LRC Staff: Dave Nicholas, Donna Little, Kara Daniel, Emily Harkenrider, Emily Caudill, Jennifer Beeler, Laura Napier, and Ellen Steinberg.
The Administrative Regulation Review Subcommittee met on Tuesday, August 14, 2007 and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
KENTUCKY HIGHER EDUCATION ASSISTANCE AUTHORITY: Division of Student and Administrative Services: Kentucky Loan Program
11 KAR 3:100. Administrative wage garnishment. Becky Gilpatrick and Melissa Justice, senior associate counsel, represented the Division.
Grant Programs
11 KAR 5:145. CAP grant award determination procedure.
KENTUCKY STATE BOARD OF ELECTIONS: Help America Vote Act 2002
31 KAR 6:030. Uniform definition of a vote. Katie Dunnigan, general counsel; and Sara Johnson, executive director, represented the board.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 4 and 5 to clarify the procedure to correct an overvote; (2) to amend Section 6 to delete a provision that prohibited counting an abbreviated form of a surname; and (3) to amend Sections 1 through 6 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
FINANCE AND ADMINISTRATION CABINET: Kentucky Retirement Systems: General
105 KAR 1:180. Death before retirement procedures. William Hanes, executive director; and Eric Wampler, general counsel, represented the cabinet.
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, as required by KRS 13A.220; and (3) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 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.
105 KAR 1:200. Retirement procedures and forms.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correct a statutory citation; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 11 to comply with the drafting and format requirements of KRS Chapter 13A; (3) to amend Section 8 to reference federal income tax withholding information requirements; and (4) to amend Section 11 to delete two (2) documents previously incorporated by reference that are now covered by the reference to federal requirements for income tax withholding information in Section 8. Without objection, and with agreement of the agency, the amendments were approved.
105 KAR 1:240. Death after retirement 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, as required by KRS 13A.220; and (3) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 2, 3, 4, 6, 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.
105 KAR 1:270. Special federal income tax withholding.
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, as required by KRS 13A.220; and (3) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 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.
105 KAR 1:380. Minimum distribution.
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, as required by KRS 13A.220 and to include a safe harbor provision in compliance with the federal Pension Protection Act of 2006; and (3) to amend Sections 1 through 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.
KENTUCKY INFRASTRUCTURE AUTHORITY: Authority
200 KAR 17:011. Repeal of 200 KAR 17:010 and 200 KAR 17:060. Tim Thomas, executive director; and John Covington, financial analyst, represented the authority.
A motion was made and seconded to approve the following amendments: to delete 200 KAR 17:010 as one of the administrative regulations being repealed. Without objection, and with agreement of the agency, the amendments were approved.
KENTUCKY BOARD OF DENTISTRY: Board
201 KAR 8:450. Dental hygienist services when supervising dentist not physically present. Eric Clark, executive director, represented the board.
JUSTICE AND PUBLIC SAFETY CABINET: Department of Corrections: Office of the Secretary
501 KAR 6:050. Luther Luckett Correctional Complex. Karen Howard, attorney; and Garvis Campbell, paralegal, represented the cabinet.
EDUCATION CABINET: Kentucky Board of Education: Department of Education: School Terms, Attendance and Operation
702 KAR 7:065. Designation of agent to manage high school interscholastic athletics. Brigid DeVries, commissioner, and Julian Tackett, assistant commissioner, represented the Kentucky High School Athletic Association. Kevin Noland, interim commissioner of education, represented the board.
Co-Chair Roeding stated that this administrative regulation took the wrong approach to regulating recruiting in high school athletics by penalizing the students instead of the offending school, coach, or administrator. He stated it was wrong to punish students for the agency’s inability to administer a system that created fair opportunity for athletic competition. He stated that the agencies involved were all creations of the legislature, directly or indirectly, and that anything created by the legislature could be changed or eliminated by the legislature.
A motion was made and seconded to find this administrative regulation deficient, and, upon a roll call vote, it was found to be deficient. The vote was six yeas and zero nays.
Exceptional and Handicapped Programs
707 KAR 1:290. Free appropriate public education. Kevin Noland, interim commissioner, represented the board. Kevin Brown, assistant general counsel, and Larry Taylor, director, Division for Exceptional Children Services, represented the department. Heidi Schissler, legal director, represented Kentucky Protection and Advocacy. Teresa Combs, senior attorney, represented the Kentucky School Boards Association. Betty Muntz represented the Kentucky Council of Administrators of Special Education.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs, and Section 7 to correct statutory citations; and (2) to amend Sections 1, 3, 4 through 6, 9, and 10 to correct technical errors and comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
707 KAR 1:300. Child find, evaluation, and reevaluation.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to correct statutory citations; and (2) to amend Sections 1 through 4 to correct technical errors and comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
707 KAR 1:310. Determination of eligibility.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to correct statutory citations; and (2) to amend Sections 1 and 2 to correct technical errors and comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
707 KAR 1:320. Individual education program.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to correct statutory citations; (2) to amend Section 2 to cite the relevant federal regulation; and (3) to amend Sections 1 through 9 to correct technical errors and comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
707 KAR 1:331. Repeal of 707 KAR 1:330, Comprehensive system of personnel.
707 KAR 1:340. Procedural safeguards and state complaint procedures.
Ms. Schissler spoke in opposition to a provision of this administrative regulation. She stated that the statute of limitations of one (1) year to file a state complaint was inadequate. She stated that there were two avenues of redress for parents: (1) requesting a due process hearing; and (2) filing a state complaint. She stated the state complaint process was faster and less expensive and should have a statute of limitations that was longer than one (1) year. She stated that parents used the state complaint process more frequently and the statute of limitations for state complaints should be equal to the statute of limitations for due process hearing requests, which was three (3) years.
Ms. Combs spoke in support of the regulation. She stated that the one (1) year statute of limitations for state complaints should remain unchanged in order to be consistent with federal law and to facilitate the provision of services to a child more quickly.
Ms. Muntz spoke in support of the administrative regulation. She stated her organization was very involved in the regulation process and their board voted to endorse the administrative regulations as they were written.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to correct statutory citations; (2) to amend Section 3 to cite the relevant federal regulation; and (3) to amend Sections 1 through 18 to correct technical errors and comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
707 KAR 1:350. Placement decisions.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to correct statutory citations; and (2) to amend Sections 1 through 3 to comply with the drafting and formatting requirements of KRS Chapter 13A.
707 KAR 1:370. Children with disabilities enrolled in private schools.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to correct statutory citations; and (2) to amend Sections 1 through 6 to correct technical errors and comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
707 KAR 1:380. Monitoring and recovery of funds.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to correct statutory citations; and (2) to amend Sections 2 through 6 to correct technical errors and comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
ENVIRONMENTAL AND PUBLIC PROTECTION CABINET: Kentucky State Board on Electric Generation and Transmission Siting: Utilities
807 KAR 5:110. Board proceedings. Rick Bertelson, staff attorney, represented the board.
CABINET FOR HEALTH AND FAMILY SERVICES: Department of Community Based Services: Division of Protection and Permanency: Child Welfare
922 KAR 1:300. Standards for child-caring facilities. Elizabeth Caywood, commissioner’s office, and Kathy Adams, assistant director, Division of Protection and Permanency, represented the department.
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 Section 1 to delete the definitions of unused terms; and (3) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, and 3 through 6, to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
922 KAR 1:310. Standards for child-placing agencies.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph and Section 4 to correct statutory citations; (2) to amend Section 1 to delete the definitions of unused terms; and (3) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 2, 4, 6 through 8, and 10 through 24 to comply with the drafting and formatting 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:
EDUCATION CABINET: Kentucky Board of Education: Department of Education: Exceptional and Handicapped Programs
707 KAR 1:280. Definitions. Kevin Noland, interim commissioner of education, represented the Board of Education; and Kevin Brown, assistant general counsel; and Larry Taylor, director, Division for Exceptional Children Services, represented the department. Heidi Schissler, legal director, represented Kentucky Protection and Advocacy. Teresa Combs, senior attorney, represented the Kentucky School Boards Association. Betty Muntz represented the Kentucky Council of Administrators of Special Education.
Ms. Schissler spoke in opposition to two provisions of this administrative regulation. She stated that her agency often represented children, parents, and foster parents involved in the special education system. She stated that the regulation process had been very open but that her agency still had concerns about two issues: (1) the definition of parent; and (2) the requirement that misbehavior be substantially similar to prior misbehavior before determining it is a manifestation of a disability. Ms. Schissler stated that foster parents should be allowed to act as a parent to make educational decisions for a child before the biological parents’ rights are terminated if the biological parents are uninvolved and the foster parent is the person best suited to make those decisions. She stated that the “substantially similar” language may be interpreted by a school to require a child to misbehave in an identical manner before the misbehavior was identified as a manifestation of the child’s disability.
Ms. Combs spoke in support of the administrative regulations. She stated her organization worked to help districts assist students with disabilities. She stated that changing the regulation to allow a foster parent to act as the parent to make educational decisions could leave districts vulnerable to legal challenges because Kentucky law gave that right to biological parents until their parental rights were terminated by a court order. In appropriate cases, the law allowed a district to name a foster parent as a surrogate parent and gave them the right to make those decisions. Ms. Combs stated that the current “substantially similar” language should be retained. She stated it allowed the child’s IEP team to evaluate the child’s behavior in the school setting and determine whether the misbehavior was a manifestation of the child’s disability.
Ms. Muntz spoke in support of the regulations. She stated her organization was very involved in the regulation process and their board voted to endorse the administrative regulations as they were written.
Representative Lee stated he had concerns about foster parents not being permitted to act as parents in making educational decisions. He stated that the biological parents may not be present or capable of making decisions for their child. He stated that he had concerns that foster children with disabilities were not treated the same as children with disabilities from more stable families.
Mr. Noland stated districts address the issue by investigating to determine if the child’s biological parents are involved. If they were not, the district proceeded with the foster parent as a surrogate parent with the authority to make decisions on behalf of the child. The regulations would continue to allow that but the districts would need to investigate each situation to determine the extent of the biological parents’ involvement.
Ms. Schissler stated she had never known of a foster parent being named a surrogate parent.
Mr. Noland stated he knew that districts sometimes named foster parents as surrogate parents and it was an issue they could address through training for the districts.
In response to a question by Representative Lee, Mr. Noland stated that a foster parent would not have to go to court to be named a surrogate parent. Instead, that decision could be made by the child’s admissions and release committee at the local school.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to correct statutory citations; and (2) to amend Section 1 to correct technical errors and comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
A motion was made and seconded to find this administrative regulation deficient and, upon a roll call vote, it was found to be deficient. The vote was seven yeas, zero nays, and one pass.
The agency requested that this administrative regulation be deferred until next month’s meeting of the Administrative Regulation Review Subcommittee. Without objection, and with agreement of the subcommittee, this administrative regulation was deferred.
707 KAR 1:360. Confidentiality of information.
In response to questions by Senator Tapp, Mr. Noland stated that the federal regulation allowed a district to respond to a parent’s request for an amendment to a child’s record within a reasonable period of time and that the state administrative regulation used the same language. He stated that it was difficult to choose a timeframe that would fit every situation and that they tried not to go beyond the mandates of federal law in order to allow local discretion.
Mr. Brown stated that what was a reasonable time would vary depending upon the circumstances and that they had deferred to the federal law.
Senator Tapp stated that parents need to be kept informed and that they may not know the legal definition of a reasonable time.
In response to a question by Co-Chair Damron about whether the department would defer the regulation to work on the issues that were raised, Mr. Noland stated that the regulations were needed to provide guidance for the next school year.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to correct statutory citations; and (2) to amend Sections 1, 4, and 6 through 8 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
A motion was made and seconded to find this administrative regulation deficient and, upon a roll call vote, it was found to be deficient. The vote was seven yeas, zero nays, and one pass.
The agency requested that this administrative regulation be deferred until next month’s meeting of the Administrative Regulation Review Subcommittee. Without objection, and with agreement of the subcommittee, this administrative regulation was deferred.
ENVIRONMENTAL AND PUBLIC PROTECTION CABINET: Office of Insurance: Life Insurance Division: Assets And Liabilities
806 KAR 6:120. Recognition of Preferred Mortality Tables for Use in Determining Minimum Reserve Liabilities.
Trade Practices and Frauds
806 KAR 12:120. Suitability in Annuity Transactions.
806 KAR 12:140. Life Insurance Illustrations.
806 KAR 12:150. Annuity Disclosures.
806 KAR 12:160. Standards for Accelerated Death Benefits.
806 KAR 12:170. Life Insurance Disclosures.
Insurance Contract
806 KAR 14:005. Rate and Form Filing for Life Insurers.
Life Insurance and Annuity Contracts
806 KAR 15:060. Universal Life Insurance.
806 KAR 15:070. Annuity Nonforfeiture.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Public Health: Division of Public Health Protection and Safety: Radiation Operators Certification
902 KAR 105:040. General radiation operator requirements.
902 KAR 105:061. Repeal of 902 KAR 105:060.
902 KAR 105:070. Violations and endorsement.