The April meeting of the Administrative Regulation Review Subcommittee was held on Monday, April 14, 2008, at 9:00 AM, in Room 149 of the Capitol Annex. Representative Robert R. Damron, 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; Joey Pendleton, and Gary Tapp; Representatives Danny Ford, Jimmie Lee, and Ron Weston.
Guests: Katie Gabhart, State Board of Elections; Andy Crocker, Personnel Board; Gary Morris, Celeste Popplewell, Department of Revenue; Michael Burleson, Kentucky Board of Pharmacy; Jonathan Buckley, David Cox, Kentucky Board of Licensure for Professional Engineers and Land Surveyors; J.W. Grabell, Jim Grawe, Kentucky Real Estate Appraisers Board; Darrin Moore, Department for Fish and Wildlife Resources; Karen Howard, Justice and Public Safety Cabinet; Tara Aziz, Carol Hughes, Lucretia Johnson, Carla Montgomery, Office of Workers Claims; John Forgy, Marty Maline, Kentucky Horse Racing Authority; Carrie Banahan, Paul Cooper, Christina Haydon, Betsy Johnson, Jim Kimbraugh, Angela Kirkland, Theresa Meyer, Neville Wise, Department for Medicaid Services; Elizabeth Caywood, Justin Dearinger, Robin Herring, Department of Community Based Services.
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 Monday, April 14, 2008, and submits this report:
KENTUCKY STATE BOARD OF ELECTIONS: Help America Vote Act of 2002
31 KAR 6:040. Elections and voting equipment security plan. Katie Gabhart, general counsel, represented the board.
A motion was made and seconded to approve the following amendments: 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.
PERSONNEL BOARD: Board
101 KAR 1:325. Probationary periods. Andy Crocker, general counsel, represented the board.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph and Section 2 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 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.
FINANCE AND ADMINISTRATION CABINET: Department of Revenue: Forms
103 KAR 3:010 & E. General administrative forms manual. Gary Morris, executive director, and Celeste Popplewell, section supervisor, represented the department.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1 and 2 to comply with the drafting requirements of KRS Chapter 13A; and (2) to amend Section 2 to update a form incorporated by reference to include pass-through entities in the corporation nexus questionnaire. Without objection, and with agreement of the agency, the amendments were approved.
103 KAR 3:040 & E. Income tax forms manual.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 to 3 to comply with the drafting and format requirements of KRS Chapter 13A; (2) to amend Section 1 to clarify when specified forms should be used; and (3) to amend Section 3 to amend eight of the forms incorporated by reference to comply with the changes made to this administrative regulation. Without objection, and with agreement of the agency, the amendments were approved.
GENERAL GOVERNMENT CABINET: Kentucky Board of Pharmacy: Board
201 KAR 2:300. Common database. Mike Burleson, executive director, represented the board.
A motion was made and seconded to approve the following amendment: (1) to amend the STATUTORY AUTHORITY paragraph to make technical corrections; (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 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 amendment was approved.
Kentucky State Board of Licensure for Professional Engineers and Land Surveyors: Board
201 KAR 18:196. Continuing professional development for engineers. Jonathan Buckley, general counsel, and David Cox, executive director, represented the board.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to include additional 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 and 3 through 9 to comply with the drafting and format requirements of KRS Chapter 13A; and (4) to delete Section 10 in its entirety. Without objection, and with agreement of the agency, the amendments were approved.
Kentucky Real Estate Appraisers Board: Board
201 KAR 30:050. Examination, continuing education, and experience requirement. J.W. Grabeel, chair, and Jim Grawe, assistant attorney general, represented the board.
A motion was made and seconded to approve the following amendments: to amend Section 3(4) to correct a minor drafting error. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 30:190 & E. Educational requirements for certification effective January 1, 2008.
In response to a question by Co-Chair Roeding, Mr. Grawe stated that this administrative regulation was not stricter than the federal requirements.
A motion was made and seconded to approve the following amendments: (1) to amend the TITLE of the administrative regulation to delete language no longer needed; and (2) to amend Sections 3, 5, and 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.
COMMERCE CABINET: Department for Fish and Wildlife Resources: Game
301 KAR 2:015. Feeding of wildlife. Darin Moore, director, represented the department.
JUSTICE AND PUBLIC SAFETY CABINET: Department of Corrections: Office of the Secretary
501 KAR 6:070. Kentucky Correctional Institution for Women. Karen Howard, attorney, represented the department.
A motion was made and seconded to approve the following amendments: (1) to update the edition dates; and (2) to amend various policies to clarify requirements and comply with the drafting and formatting requirements of KRS Chapter 13A. 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 update the edition dates; and (2) to amend various policies to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
501 KAR 6:230. Little Sandy Correctional Complex.
A motion was made and seconded to approve the following amendments: (1) to update the edition dates; (2) to correct a policy title; and (3) to amend various policies to 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: Department of Labor: Office of Workers' Claims: Department of Workers' Claims
803 KAR 25:280. Certification of drug-free workplace. Carla Montgomery, general counsel, represented the department.
In response to a question by Co-Chair Roeding, Ms. Montgomery stated that after this administrative regulation became effective, applicants would be able to move quickly through the certification process.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to insert statutory citations; (2) to amend Sections 1(5), 2(2)(a), 3(6), and 5(8) to provide identifying information regarding procedures, laws, and regulations that are required for compliance with the Drug-Free Workplace Program; (3) to amend Section 3(8)(b)1. to clarify that the MRO shall certify that test results do not indicate unlawful use of alcohol or a controlled substance if the MRO determines there is a legitimate medical explanation for a positive test result; and (4) 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.
Department of Public Protection: Kentucky Horse Racing Authority: Thoroughbred Racing
810 KAR 1:027. Entries, subscriptions, and declarations. John Forgy, general counsel, represented the authority. Marty Maline, executive director, represented the Horsemen's Benevolent and Protective Association.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to delete a citation; (2) to amend Section 1 to delete definitions already defined by KRS 230.210; (3) to amend Section 3 to: (a) clarify that horses entered as “main track only” shall be considered only if the race is taken off the turf, and (b) clarify the types of evidence that shall indicate adequate training to race from the starting gate; (4) to amend Section 5 to clarify that waiver of the prohibition against a horse owned or trained by a person whose spouse is under license suspension depends upon the severity of the offense; (5) to amend Section 6(4)(a) to remove the provision prohibiting two horses having common ties through training from starting in a purse race to the exclusion of a single entry; (6) to amend Section 16(4) to decrease the number of days a horse would be placed on the veterinarian list if scratched due to physical disability or sickness from nine days to six; and (7) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 12, 16, and 17 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Medicaid Services: Medicaid Services
907 KAR 1:044. Community mental health center services. Betsy Johnson, commissioner; Carrie Banahan, deputy commissioner; and Christine Haydon, policy analyst, represented the department.
A motion was made and seconded to approve the following amendments: to amend Sections 1 to 6 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 1:815 & E. Nondiagnostic related group inpatient hospital reimbursement.
A motion was made and seconded to approve the following amendments: (1) to amend the TITLE and Sections 1, 17, and 20 to change the word "diagnostic" to "diagnosis", as requested by the agency; (2) to amend the RELATES TO paragraph to correct statutory citations; (3) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 2, 3, 5, 7, 10, 11, 16, 17, 19, 20, 21, and 22 to comply with the drafting and format requirements of KRS Chapter 13A; (4) to amend Section 2 to delete the separate reimbursement rates for psychiatric care in an in-state acute care hospital; and (5) to amend Section 16 to specify that: (a) the psychiatric operating per diem rate shall equal seventy percent of the median operating cost; and (b) the psychiatric capital per diem rate shall equal seventy percent of the median psychiatric capital per diem cost. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 1:820 & E. Disproportionate share hospital distributors.
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 to 5, 7, 8, and 9 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:
FINANCE AND ADMINISTRATION CABINET: Department of Revenue: Sales and Use Tax: Administration and Accounting
103 KAR 31:180 & E. Signature project refunds on construction costs.
Tax Increment Financing
103 KAR 50:050. Incremental revenues for income and limited liability entity taxes.
GENERAL GOVERNMENT CABINET: Kentucky Board of Veterinary Examiners: Board
201 KAR 16:110. Prescriptions and dispensation of drugs for animal use.
Board of Licensure and Certification for Dietitians and Nutritionists: Board
201 KAR 33:020. Renewals.
COMMERCE CABINET: Department for Fish and Wildlife Resources: Game
301 KAR 2:041. Shooting preserves and foxhound training enclosures.
JUSTICE AND PUBLIC SAFETY CABINET: Kentucky Law Enforcement Council: Council
503 KAR 1:190 & E. Kentucky Law Enforcement Council.
TRANSPORTATION CABINET: Department of Vehicle Regulation: Driver Improvement
601 KAR 13:070. KRS 159.051. Compliance verification for a minor.
EDUCATION CABINET: Kentucky Board of Education: Department of Education: School Administration and Finance
702 KAR 3:270. SEEK funding formula.
ENVIRONMENTAL AND PUBLIC PROTECTION CABINET: Department of Public Protection: Office of Insurance: Trade Practices and Frauds
806 KAR 12:180. Military sales practices.
CABINET FOR HEALTH AND FAMILY SERVICES: Office of the Secretary: E-Health
900 KAR 7:020. Kentucky e-Health Corporation.
Department for Medicaid Services: Medicaid Services
907 KAR 1:013 & E. Diagnostic-related group (DRG) inpatient hospital reimbursement.
907 KAR 1:160 & E. Home and community based waiver services. Betsy Johnson, commissioner; Carrie Banahan, deputy commissioner; and Christine Haydon, policy analyst, represented the department.
Jim Kimbrough, Kentucky Protection and Advocacy, spoke in opposition to this administrative regulation. He stated that his agency was very supportive of the consumer directed option (CDO) but disagreed with the department regarding the extent of an individual's autonomy to decide whether to live outside of an institutional setting using support available in the community. He stated that an individual may be willing to accept the level of support available in the community in order to stay out of an institution even though more support was needed. He stated that individuals living in the community did not need a caretaker with them at all times and some individuals were willing to take whatever supports were available in order to avoid institutionalization. He stated that in such situations, a risk management plan should be created to facilitate the individual's safety while preserving his or her autonomy.
Ms. Haydon stated that the department had to make certain assurances to the Centers for Medicare and Medicaid Services (CMS) guaranteeing the health, safety, and welfare of individuals and that some were in danger without 24-hour support.
Mr. Kimbrough stated that CMS encouraged using risk management plans to address the issue. In response to a question by Representative Lee, Mr. Kimbrough stated that in some cases the quality of care with the supports available in the community could be so low as to require the individual to be institutionalized, but that it should happen less frequently than it does.
Representative Lee stated he was not aware of anyone being denied a CDO waiver and that a balance should be struck between the quality of care provided and the individual's desire to remain in the community.
In response to a question by Co-Chair Damron, Mr. Kimbrough stated that his agency was involved in formal discussions with the cabinet about this administrative regulation for over a month.
In response to a question by Co-Chair Roeding, Mr. Kimbrough stated there was a 2006 report available that addressed the liability of all of the parties and it was used in discussions with the cabinet.
In response to questions by Representative Ford, Ms. Johnson stated the department recently reinstated a 21-day hold on payments to providers. She stated that this was consistent with administrative regulations that required payment within 30 days. She stated that the hold was instituted to help manage the department's cash flow and that there was an exemption process for providers who needed payment more quickly. She stated that she would review referral patterns.
A motion was made and seconded to defer consideration of this administrative regulation until the Subcommittee's May meeting. Ms. Johnson 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 Community Based Services: Day Care
922 KAR 2:170. STARS for KIDS NOW Program for Type I licensed child-care centers. Elizabeth Caywood, policy analyst, and Robin Herring, branch manager, represented the department.
In response to questions by Representative Lee, Ms. Caywood stated that home-based child-care providers were eligible to become STARS providers. Ms. Herring stated that there were incentives for smaller providers and a scholarship program available to cover the cost of training.
Representative Lee stated that small child-care providers were prevented from participating in the program because they had to close their businesses to attend the training. He also stated that he was concerned about a lack of utilization because money for the program had not been spent.
Ms. Caywood stated that the money for the program came from the tobacco settlement and had to be used for child-care. She stated that it could not be used for child welfare initiatives.
Co-Chair Roeding stated he was concerned that the fiscal impact was estimated to require additional funding of over $1 million but the program had money left over in the past. He stated that the money was being used to incentivize the program but was not subsidizing child-care.
A motion was made and seconded to defer consideration of 922 KAR 2:170 and 922 KAR 2:210 until the Subcommittee's May meeting. Ms. Caywood stated that the department would agree to defer these administrative regulations. Without objection, and with agreement of the agency, these administrative regulations were deferred.
922 KAR 2:210. STARS for KIDS NOW Program for Type II licensed and certified family child-care homes.
The Subcommittee adjourned at 10:00 a.m. until May 13, 2008.