The Administrative Regulation Review Subcommittee met on Tuesday, October 9, 2007, at 10:00 AM, in Room 149 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, and Gary Tapp; Representatives Danny Ford, and Ron Weston.
Guests: Dr. Jim Applegate, Dennis Taulbee, Council on Postsecondary Education; Debbie Bohannon, Thomas Stephens, Personnel Cabinet; Donald Guier, Albert Becker, James Livers, Department of Revenue; John McCarty, Crushed Stone Association; Dan Waits, Lonnie Campbell, Allen Wilson, Governor's Office for Local Development; Mark Brengelman, Curt Duff, Claude Wagner, Melanie Abner, Kentucky Board of Opthalmic Dispensers; Darin Moore, Kentucky Department of Fish and Wildlife Resources; Lona Brewer, John Lyons, Kentucky Division for Air Quality; Kevin Brown, Jeff Mosley, Heidi Schussler, Larry Taylor, Kentucky Department of Education; James Cundy, Barbara Teague, Kentucky Department for Libraries and Archives; Chuck Stribling, Department of Labor; Virginia Davis, Tony Royalty, Office of Alcoholic Beverage Control; Randy Azbill, Kentucky Office of Insurance; Commissioner Deborah Anderson, Pat Brookman, Karen Cooke, Shirley Eldridge, Melissa Dalton Hopkins, Amy Moore, Christine Pietrandrea, Phyllis Sosa, Department for Aging and Independent Living; Virginia Carrington, Elizabeth Caywood, Justin Dearinger, Rosanne Barkley, Department for Community Based Services; John Underwood, Assisted Living; Bernie Vonderheide, Kentuckians for Nursing Home Reform; Kaycie Len Carter, Community Farm Alliance.
LRC Staff: Dave Nicholas, Donna Little, Kara Daniel, Emily Harkenrider, Laura Milam, Emily Caudill, Jennifer Beeler, Laura Napier, and Ellen Steinberg.
The Administrative Regulation Review Subcommittee met on Tuesday, October 9, 2007 and submits this report:
COUNCIL ON POSTSECONDARY EDUCATION: Public Education Institutions
13 KAR 2:020. Guidelines for admission to the state-supported postsecondary education institutions in Kentucky. Jim Applegate, vice president of academic affairs; and Dennis Taulbee, general counsel, represented the council.
Co-Chair Damron stated that he commended the council for promulgating this administrative regulation and working with legislators throughout the regulatory process to resolve concerns. He stated that he hoped that legislation during the 2008 Regular Session would eliminate that exemption so that the higher education institutions would promulgate administrative regulations, instead of issuing policies.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to: (a) clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; and (b) clarify that the college readiness standards established in this administrative regulation shall not release institutions from the requirements established in 13 KAR 2:060; (2) to amend Section 3 to clarify the requirements relating to the precollege curriculum; (3) to amend Sections 3 and 7 to reference the Program of Studies that was already incorporated in 704 KAR 3:303, rather than incorporate it in this administrative regulation; (4) to amend Section 5 to require compliance with the council’s General Education Transfer Policy and Implementation Guidelines, rather than program specific agreements; (5) to amend Sections 6 and 7 to require adherence to the Kentucky Statement Public Postsecondary Placement Policy in English and Mathematics, which is incorporated by reference; and (6) to amend Sections 1, 2, 3, 5, 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.
PERSONNEL CABINET: Office of the Secretary: Classified
101 KAR 2:120. Incentive programs. Tom Stephens, general counsel, and Debbie Bohannon, chairperson of the employee suggestion system, 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 Sections 1 through 3 to comply with the drafting and format requirements of KRS Chapter 13A; and (3) to amend Section 3 to: (a) update the edition dates for the material incorporated by reference; and (b) revise the two (2) forms to make technical corrections. Without objection, and with agreement of the agency, the amendments were approved.
FINANCE AND ADMINISTRATION CABINET: Department of Revenue: Ad Valorem Tax; State Assessment
103 KAR 8:130. Ad valorem taxation of machinery actually engaged in the manufacturing of coal. James Livers, assistant director; Donald Guier, assistant director; and Albert Becker, branch manager, represented the department.
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; and (2) 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.
103 KAR 8:140. Ad valorem taxation of machinery actually used in the manufacturing of crushed stone, sand, and gravel.
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; and (2) to amend the TITLE and 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.
103 KAR 8:150. Ad valorem taxation of machinery actually used in the manufacturing of hot mix asphalt.
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; 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.
GENERAL GOVERNMENT: Governor's Office for Local Development: County Budget
109 KAR 15:020. State Local Officer Policy Manual. Dan Waits, executive director; Lonnie Campbell, branch manager; and Alan Wilson, general counsel, represented the office.
In response to a question by Co-Chair Roeding, Mr. Waits stated that before adoption, the policy manual was reviewed by the Kentucky Association of Counties, the treasurers’ association, judges, magistrates, sheriffs, and other local officials. He stated that the manual would be distributed at required regional training sessions.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO; STATUTORY AUTHORITY; and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to correct statutory citations; (2) to amend 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 1 to clarify the applicability of the manual incorporated by reference; (4) to amend Section 2 to provide for a revised version of the manual incorporated by reference; and (5) to amend various sections of the manual incorporated by reference to make technical corrections and to clarify the requirements pertaining to budget publication. Without objection, and with agreement of the agency, the amendments were approved.
Kentucky Board of Ophthalmic Dispensers: Board
201 KAR 13:080. Operation and inspection of optical establishments. Melanie Abner represented the board. Claude Wagner, director, represented the Division of Occupations and Professions; and Curt Duff, executive director, represented the Society of Dispensing Opticians.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation; (2) to amend Sections 1, 3, 4, 5, and 7 to comply with the formatting and drafting requirements of KRS Chapter 13A; and (3) to amend Section 7 to reduce the maximum fine amount from $3,000 to $1,000. Without objection, and with agreement of the agency, the amendments were approved.
ENVIRONMENTAL AND PUBLIC PROTECTION CABINET: Department for Environmental Protection: Division for Air Quality: Hazardous Pollutants
401 KAR 57:002. 40 C.F.R. Part 61 national emission standards for hazardous air pollutants. Lona Brewer, manager, represented the division.
In response to a question by Co-Chair Roeding, Ms. Brewer stated that the department filed comments on a proposed federal regulation that will lower emission standards.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct citations; 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.
Asbestos
401 KAR 58:025. 40 C.F.R. Part 61 national emission standard for asbestos.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to correct citations; (2) to amend Sections 1 through 3 to comply with the drafting and format requirements of KRS Chapter 13A; and (3) to amend Section 3 to insert contact information for the Frankfort regional office. Without objection, and with agreement of the agency, the amendments were approved.
New Source Performance Standards
401 KAR 60:005. 40 C.F.R. Part 60 standards of performance for new stationary sources.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct citations; 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.
401 KAR 60:670. 40 C.F.R. Part 60 standards of performance for nonmetallic mineral processing plants.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct citations; 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.
General Standards of Performance
401 KAR 63:002. 40 C.F.R. Part 63 national emission standards for hazardous air pollutants.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO; STATUTORY AUTHORITY; and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to correct citations; and (2) to amend Sections 1 and 2 to comply with the drafting and format requirements of KRS Chapter 13A and to update references to the federal regulations. Without objection, and with agreement of the agency, the amendments were approved.
EDUCATION CABINET: Kentucky Board of Education: Department of Education: Exceptional and Handicapped Programs
707 KAR 1:280. Definitions. Kevin Brown, assistant general counsel, and Larry Taylor, director, Division for Exceptional Children Services, represented the department. Heidi Schissler, legal director, Kentucky Protection and Advocacy, appeared in support of this administrative regulation and 707 KAR 1:360.
Subcommittee staff stated that these administrative regulations were found to be deficient by the subcommittee at its August meeting and then deferred at the request of the department. The department filed additional amendments to change the language that had prompted the subcommittee’s findings of deficiency. The Board of Education requested that the subcommittee reconsider and remove its findings of deficiency, as authorized by KRS Chapter 13A, and approve the new amendments.
In response to a question by Co-Chair Roeding, Ms. Schissler stated that the department had worked with Kentucky Protection and Advocacy and her organization supported the proposed amendments to the two administrative regulations.
In response to questions by Co-Chair Roeding, Mr. Brown stated that the amendment defined a reasonable time period as ten school days. In addition to the changes in 707 KAR 1:360, the department found two other instances where the term “reasonableness” was used in administrative regulations that had already been referred to the Interim Joint Committee on Education. The department intended to make similar changes to those administrative regulations at the second committee’s review.
A motion was made and seconded to remove the findings of deficiency for these administrative regulations and the findings of deficiency were removed.
A motion was made and seconded to approve the following amendments: (1) to expand the definition of “parent” in Section 1 to include a foster parent if the biological or adoptive parents grant authority in writing for the foster parent to make educational decisions for the child; (2) to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to correct statutory citations; and (3) 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.
707 KAR 1:360. Confidentiality of information.
A motion was made and seconded to approve the following amendments: (1) to amend Section 6 to require a school district to respond to a parent’s request for an amendment to a child’s record within ten (10) school days rather than within a reasonable time; (2) to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to correct statutory citations; and (3) 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.
Department for Libraries and Archives: Public Records Division: Archives
725 KAR 1:030. Scheduling public records for retention and disposal; procedures. Barbara Teague, acting director; James Cundy, state records manager; and Jeff Mosley, general counsel, represented the division.
In response to questions by Co-Chair Damron, Ms. Teague stated that the Administrative Office of the Courts (AOC) created its own retention schedule, approved by the chief justice, which was submitted to the department for concurrence. She stated that AOC had imposed a moratorium on records destruction.
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 this administrative regulation; and (2) to amend the material incorporated by reference to update citations and correct typographical errors. Without objection, and with agreement of the agency, the amendments were approved.
725 KAR 1:061. Records retention schedules; authorized schedules.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to comply with the formatting and drafting requirements of KRS Chapter 13A; and (2) to amend the material incorporated by reference to add edition dates. Without objection, and with agreement of the agency, the amendments were approved.
ENVIRONMENTAL AND PUBLIC PROTECTION CABINET: Department of Labor: Occupational Safety and Health
803 KAR 2:422. Rollover protective structures; overhead protection. Chuck Stribling, safety standards specialist, represented the department.
Department of Public Protection: Office of Alcohol Beverage Control: Licensing
804 KAR 4:410. ABC schedules and forms incorporated by reference. Tony Royalty, deputy executive director; and Virginia Davis, resource management analyst, represented the office.
In response to a question by Co-Chair Roeding, Ms. Davis stated there was no increase in fees.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct statutory citations; and (2) to amend Section 2 to correct titles of material incorporated by reference and 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 Insurance: Health Insurance Contracts
806 KAR 17:250. Notification requirements for drug benefits. Randy Azbill, director, represented the office.
In response to a question by Co-Chair Roeding, Mr. Azbill stated the office was trying to increase the number of insurance companies doing business in Kentucky, especially in the health insurance area.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 2 to comply with the drafting 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 Aging and Independent Living: Division of Quality Living: Aging Services
910 KAR 1:240. Certification of assisted-living communities. Deborah Anderson, Commissioner; and Phyllis Sosa, branch manager, represented the division. John Underwood, executive director, Kentucky Assisted Living Facilities Association, appeared in support of this administrative regulation. Bernie Vonderheide, of Kentuckians for Nursing Home Reform, appeared in opposition to this administrative regulation.
Mr. Vonderheide stated that the promulgation of this administrative regulation should be slowed and it should be amended to adopt policies to protect consumers. He stated assisted living communities should have oversight similar to the nursing home ombudsman services and that personnel quality control should be improved through the addition of random drug tests for employees. He stated that facilities should provide simple medical assistance to their residents. He stated that inspection results should be immediately made public through placement on the department’s Web site and a Web site should be established that shows ownership of the facilities as well as information about how to file a complaint.
Co-Chair Roeding stated that some of the suggested changes could only be made through legislation and that the appropriate place to discuss those changes was before the Health and Welfare Committee.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 2 and 4 to clarify how a certification fee is prorated; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 11 to comply with the formatting and drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Department for Community Based Services: Division of Family Support: K-Tap, Kentucky Works, Welfare to Work, State Supplementation
921 KAR 2:016. Standards for need and amount for the Kentucky Transitional Assistance Program (K-TAP). Elizabeth Caywood, Justin Dearinger, and Virginia Carrington represented the division.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph and Sections 1, 3, and 5 to correct statutory citations; (2) to amend Sections 3 and 5 to delete references to Tobacco Loss Assistance Program payments, which no longer exist; and (3) to amend Sections 1, 3, 5, 8, and 15 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
921 KAR 2:050. Time and manner of payments.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to correctly state the function of this administrative regulation; and (2) to amend Sections 1 through 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.
Division of Child Care: Day Care
922 KAR 2:160. Child Care Assistance Program. Elizabeth Caywood and Justin Dearinger represented the division.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correct citations; (2) to amend Sections 4 through 7 to clarify the eligibility requirements for the program; and (3) to amend Sections 1 through 14, and 16 to make technical corrections and comply with the formatting and drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
922 KAR 2:180. Requirements for Registered Child Care Providers in the Child Care Assistance Program.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clarify the function of this administrative regulation; and (2) to amend Sections 1 through 6, 8, and 9 to make technical corrections and comply with the formatting and drafting 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:
FINANCE AND ADMINISTRATION CABINET: Kentucky Retirement Systems: General Rules
105 KAR 1:390 & E. Employment after Retirement.
GENERAL GOVERNMENT: Kentucky Board of Chiropractic Examiners: Board
201 KAR 21:032. Repeal of 201 KAR 21:031.
201 KAR 21:060. Clinics; offices.
201 KAR 21:065. Professional advertising; Seventy-two (72) hour right of rescission.
COMMERCE CABINET: Kentucky Department of Fish and Wildlife Resources:
Licensing
301 KAR 5:050. Purchasing licenses electronically. Darin Moore, director, represented the department.
In response to questions by Senator Tapp, Mr. Moore stated that he knew of no way to satisfy the federal requirement to obtain the applicant’s social security number by obtaining a driver’s license number and cross-referencing with the driver’s license database. He stated that no federal money was tied to the requirement and he did not know what the repercussions would be if Kentucky did not comply with the requirement. He stated that an applicant would personally input his social security number into a keypad and was not required to show his social security card. He stated that new terminals and keypads were purchased for each point of sale location. He stated that clerks were trained and software purchased to maintain the security of the numbers. He stated that licenses can be purchased online, by telephone, or in person.
In response to questions by Senator Kerr, Mr. Moore stated that only the social security number was needed and only at the time the license was purchased.
In response to questions by Co-Chair Damron, Mr. Moore stated that this administrative regulation only addressed internet sales and that 301 KAR 5:030 requiring social security numbers for direct sales went through the subcommittee in April. He stated that social security numbers were required for harvest data as well and that because social security numbers contain no letters, there was less risk of data entry errors.
In response to a question by Senator Tapp, Mr. Moore stated that the number of deer deaths due to blue tongue disease reported on the department’s website was based on the numbers reported to conservation officers. He stated he would find out if there was any additional support for the reported numbers.
In response to questions by Co-Chair Roeding, Mr. Moore stated that conservation officers and other officials passed out cards with contact numbers for the department. He stated that a separate category for senior licenses had been created rather than a joint category for seniors and individuals with disabilities. He stated that would reduce confusion and provide better data.
A motion was made and seconded to approve the following amendments: to amend Section 1 to comply with the formatting and drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendment was approved.
A motion was made and seconded that the subcommittee review 301 KAR 5:030, which requires an applicant for a license to provide a social security number when applying at a point of sale. Without objection, it was ordered that the subcommittee will review the administrative regulation at its November meeting.
A motion was made and seconded to defer consideration of this administrative regulation. Mr. Moore stated that the department would agree to defer this administrative regulation. Without objection and with agreement of the agency, this administrative regulation was deferred.
DEPARTMENT OF AGRICULTURE: Livestock Sanitation
302 KAR 20:010. Definitions for 302 KAR Chapter 20.
302 KAR 20:020. General requirements.
302 KAR 20:030. Authority to inspect, test, identify, remove and dispose of livestock and poultry.
302 KAR 20:040. Entry into Kentucky.
302 KAR 20:065. Sale and exhibition of Kentucky origin animals in Kentucky.
302 KAR 20:261. Approved Kentucky Horse Sale.
EDUCATION CABINET: Kentucky Board of Education: Department of Education: Pupil Transportation
702 KAR 5:080. Bus drivers' qualifications, responsibilities, and training.
Health and Physical Education Programs
704 KAR 4:020. School health services.
Office of Learning Support Services
704 KAR 7:101. Repeal of 704 KAR 7:100. Approval of operation of alternative education programs for purposes of drivers' license revocation.
ENVIRONMENTAL AND PUBLIC PROTECTION CABINET: Department of Labor: Department of Workers' Claims
803 KAR 25:040. Average weekly wage certification.
803 KAR 25:251. Repeal of 803 KAR 25:250.
Department of Public Protection: Office of Insurance: Health Insurance Contracts
806 KAR 17:545 & E. ICARE Program employer eligibility, application process, and requirements.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Human Support Services: Division of Child Abuse and Domestic Violence Services: Child Abuse and Domestic Violence Services
920 KAR 2:040 & E. Standards for children's advocacy centers.
The Subcommittee adjourned at 11:05 until November 2007.