The December meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, December 9, 2008, 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, Joey Pendleton, and Gary Tapp; Representatives Danny Ford, Jimmie Lee, and Ron Weston.
Guests: Dave Nicholas, Donna Little, Sarah Amburgey, Emily Harkenrider, Karen Howard, Emily Caudill, Jennifer Beeler, and Laura Napier.
LRC Staff: Jeffrey Acob, Kentucky Department of Veteran's Affairs; Joe Cowles, Jenny Goins, Fred Nelson, Personnel Cabinet; Jennifer Steele, Mary Beth Braitman, Terry Mumford, Jennifer Jones, Kentucky Retirement Systems; Mark Brengleman, Pam Ison, Barbara Rucker, Frances Short, Michael West, Kentucky Board of Speech-Language Pathology and Audiology; Larry Disney, Kentucky Real Estate Appraisers Board; Karen Alexy, Steven Dobey, Margret Everson, Robert Fraley, Richard Fowler, Jonathan Gassett, Chet Hayes, John Phillips, Michael Roberts, Pam Rogers, Catherine York, Kentucky Department of Fish and Wildlife Resources; Tom Bloemer, Mark Farrow, Edward (Rusty) Ford, Dr. Robert Stout, Kentucky Department of Agriculture; Amy Barker, Lee VanHoose, Lisa Howard, Todd Woodward, Justice and Public Safety Cabinet; Ann Dangelo, Bobby Russell, Rick Taylor, Transportation Cabinet; Kevin Brown Christine Powell, Faith Thompson, Kentucky Department of Education; Sharon Clark, Treva Donnell, William Nold, DJ Wasson, Kentucky Department of Insurance; William Owsley, James Strode, Carmen Bishop, Colleen Keefe, Department of Financial Institutions; Patti Cooksey, Marc Guilfoil, John Forgy, Kentucky Horse Racing Commission; Carrie Banahan, Chandra Venettozzi, Cabinet for Health and Family Services; Stephanie Brammer-Barnes, Dave Sallengs, Office of Inspector General; Rick Christman, Richard P. Covert, Patty Dempsey, Kerry Harvey, Barbara Henchey, Darla Baily, Elizabeth Johnson, Stuart Owen, Heidi Schussler, Ronnie Zimmerman, Department for Medicaid Services; Virginia Carrington, Elizabeth Caywood, Mike Grimes, Department for Community Based Services.
The Administrative Regulation Review Subcommittee met on Tuesday, December 9, 2008, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
GOVERNOR'S OFFICE: Department of Veterans Affairs: Office of the Commissioner
17 KAR 4:020. Indigent veterans' burial program. Jeffrey Acob, Cemeteries Branch Manager, represented the department.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to insert a federal citation; (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 through 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.
PERSONNEL CABINET: Office of the Secretary
101 KAR 2:210 & E. 2009 Plan yearbook for the public employee health insurance program. Joe R. Cowles, general counsel, and Fred Nelson, commissioner, represented the cabinet.
FINANCE AND ADMINISTRATION CABINET: Kentucky Retirement Systems: General Rules
105 KAR 1:140 & E. Contribution reporting. Mary Beth Braitman, attorney; Jennifer Jones, acting general counsel; Terry Mumford, attorney; and Jennifer Steele, staff attorney, represented the systems.
In response to a question by Co-Chair Roeding, Ms. Mumford stated that the compensation limit for the amount of contributions was established by the Internal Revenue Service as part of the Internal Revenue Code, which was updated periodically with cost of living adjustments. She also stated that the Kentucky Retirement Systems was unable to consider compensation above that limit established by the Internal Revenue Service.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to delete superfluous 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 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 1:345 & E. Rollovers and transfers of contributions to other plans.
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; (2) to amend Sections 1 and 2 to clarify rollover and transfer requirements; and (3) 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.
105 KAR 1:380 & E. Minimum distribution.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correct a citation; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 2 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 1:390 & E. Employment after retirement.
In response to a question by Co-Chair Roeding, Ms. Jones stated that retirement systems members were able to get information regarding the amendments from the relevant statutes, administrative regulations, the agency's Web site, and the agency's counselors.
A motion was made and seconded to approve the following amendments: 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 1:400 & E. Federal taxation limitation year.
In response to a question by Co-Chair Roeding, Ms. Mumford stated that the "administrative scheme" referenced in the summary was comprised of comprehensive procedures to comply with federal protocols for retirement systems payments.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 16 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 1:420 & E. Account established under 26 U.S.C.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to make technical corrections and to correction citations; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 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.
105 KAR 1:430 & E. General Compliance with federal tax laws.
In response to a question by Co-Chair Roeding, Ms. Jones stated that the Kentucky Retirement Systems administered a certain type of pension plan and that this administrative regulation did not impact other types of plans.
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 through 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.
GENERAL GOVERNMENT CABINET: Board of Speech-Language Pathology and Audiology: Board
201 KAR 17:014. Temporary licenses for speech-language pathologist, speech-language pathology assistant, and audiologist. Pam Ison, board chair; Frances S. Short, Executive Director of the Division of Occupations and Professions; and Michael West, assistant attorney general, represented the board.
In response to a question by Senator Kerr, Ms. Ison stated that the purpose of temporary licensure was to allow audiologists and speech-language pathologists to begin work while waiting on the board to meet since the board didn't meet every month. The board was required to meet to approve the licensure requests.
A motion was made and seconded to approve the following amendments: (1) to amend the title to accurately reflect the content of the administrative regulation; (2) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to correct statutory citations; and (3) to amend Sections 1 through 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 17:030. License fees and requirements for inactive status.
In response to a question by Co-Chair Roeding, Ms. Ison stated that the administrative regulation did not establish new fees, but divided license renewals over a two (2) year period.
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.
Real Estate Appraisers Board: Board
201 KAR 30:010. Definitions for 201 KAR Chapter 30. Mark Brengelman, assistant attorney general, and Larry Disney, executive director, represented the board.
201 KAR 30:030. Types of appraisers required in federally-related transactions; certification and licensure.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to correct statutory citations; and (2) to amend Sections 2 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.
DEPARTMENT OF AGRICULTURE: Livestock Sanitation: Livestock Sanitation
302 KAR 20:110. Treatment of imported mares. Edward "Rusty" Ford, program manager; Dr. Robert Stout, state veterinarian; and Tom Bloemer, branch manager, represented the department.
A motion was made and seconded to approve the following amendments to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Sections 2 and 5 to: (1) correct citations; and (2) comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
302 KAR 20:120. Treatment of imported stallions.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2(5) to update the Web site containing the list of laboratories approved to conduct the required testing; and (2) to amend the RELATES TO paragraph and Sections 1 to 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.
Regulation and Inspection; Motor Fuel
302 KAR 79:010. Testing and Inspection Program.
In response to a question by Co-Chair Roeding, Mr. Bloemer stated that ethanol raised octane levels and lowered mileage.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph and Section 9 to cite to the governing federal regulation rather than incorporating it by reference, in accordance with KRS 13A.2261; and (2) to amend Sections 3, 5, and 9 to require use of the current ASTM standards in accordance with KRS 363.902(2). 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 6:270. Probation and parole policies and procedures. Amy Barker, assistant general counsel; Lee Van Hoose, director; Lisa Howard, program administrator; and Todd Woodward, program administrator, represented the department.
A motion was made and seconded to approve the following amendments to: (1) amend Section 1 to correct the edition dates of the material incorporated by reference; and (2) amend policies and procedures for clarity and to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
TRANSPORTATION CABINET: Department of Vehicle Regulation: Division
601 KAR 1:040 & E. Application for operating authority and registration of motor carriers. Rick Taylor, deputy commissioner, represented the department.
In response to a question by Co-Chair Roeding, Mr. Taylor stated that this administrative regulation prohibited intrastate bus contracts, but not charter busses.
Co-Chair Roeding stated that it was important to make it easier for charter buses to return to Kentucky.
A motion was made and seconded to approve the following amendments: to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Sections 4 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.
EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Board of Education: Department of Education: Board
704 KAR 3:390. Extended school services. Kevin Brown, general counsel; Christine Powell, director; and Faith Thompson, branch manager, represented the board.
In response to questions by Co-Chair Roeding, Mr. Brown stated that extended school services would not be available for private school students or homeschoolers unless those students joined the public school system. He also stated that the formula for flexible ESS funding was governed by Section 4 of this administrative regulation and that the local school district determined how the funds would be used. The program was currently underfunded because of the budget crisis, but it was a mandated expense.
A motion was made and seconded to approve the following amendments: 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.
PUBLIC PROTECTION CABINET: Department of Insurance: Agents, Consultants, Solicitors, and Adjusters
806 KAR 9:340. Forms. Treva Donnell, director of agent licensing, and William J. Nold, director of health insurance policy and managed care, represented the department.
806 KAR 9:350. Recognition of financial planning certification and designation for receipt of fees and commissions.
Health Insurance Contracts
806 KAR 17:081. Minimum standards for long-term care insurance policies.
In response to a question by Co-Chair Roeding, Mr. Nold stated that the proposed amendments were in response to HB 259 and that the waiver was approved.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 2, 3, 6, 8, 10, 11, 12, 15, 16, 17, 19, 20, 21, 23, 25, 26, 28, and 30 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
806 KAR 17:300. Provider agreement and risk sharing agreement filing requirements.
Department of Financial Institutions: Division of Securities: Securities
808 KAR 10:041. Repeal of 808 KAR 10:040. Colleen Keefe, attorney; William Owsley, attorney; and James Strode, director, represented the division.
808 KAR 10:042. Use of senior certifications and designations.
In response to a question by Co-Chair Roeding, Mr. Strode stated that these requirements were based on national model rules and were intended to keep Kentucky consistent with other states.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to add the definition of “Financial Services Regulatory Agency”; and (2) 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.
808 KAR 10:440. Examples of dishonest or unethical practice for broker-dealers and agents.
In response to a question by Co-Chair Roeding, Ms. Keefe stated that a CEO would be required to comply with this administrative regulation if the CEO was the designated responsible control person.
A motion was made and seconded to approve the following amendments to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 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.
808 KAR 10:450. Examples of dishonest or unethical practice for investment advisers and investment adviser representatives.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 2 and 3 to specify citations; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and 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.
808 KAR 10:460. Request for approval of change in control.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to delete a superfluous statutory citation; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 2 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.
Kentucky Horse Racing Commission: Thoroughbred Racing
810 KAR 1:012. Horses. Patti Cooksey, director of public relations; John Forgy, general counsel; and Marc A. Guilfoil, executive director, represented the commission.
Senator Tapp stated appreciation for the commission's work on contentious issues.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to include EO 2008-668, which established the commission and transferred all authority, functions, and responsibilities of the Kentucky Horse Racing Authority to the commission; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 5, and 8 through 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.
810 KAR 1:018 & E. Medication; testing procedures; prohibited practices.
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 include EO 2008-668, which established the commission and transferred all authority, functions, and responsibilities of the Kentucky Horse Racing Authority to the commission; (2) to amend Sections 1, 2, 8, 9, 15, 19, and 22 to use consistent terminology; and (3) to amend Sections 1 through 9, 12 through 17, and 19 through 23 for clarification and to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
810 KAR 1:028 & E. Disciplinary measures and penalties.
Co-Chair Roeding stated that, an agency that increased penalties by reclassification of a felony class, should take into consideration how this change may affect prison population and the Department of Correction's budgets.
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 include EO 2008-668, which established the commission and transferred all authority, functions, and responsibilities of the Kentucky Horse Racing Authority to the commission; (2) to amend Sections 1 and 11 and the material incorporated by reference to reflect the current edition of the Withdrawal Guidelines; and (3) to amend Sections 1, 2, 3, 5, 6, 7, 8, 11, and 12 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Harness Racing
811 KAR 1:090 & E. Medication; testing procedures; prohibited practices.
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 include EO 2008-668, which established the commission and transferred all authority, functions, and responsibilities of the Kentucky Horse Racing Authority to the commission; (2) to amend Sections 1, 2, 8, 9, 15, 19, and 22 to use consistent terminology; and (3) to amend Sections 1, 2, 5, 6, 8, 9, 12, 13, 15, 16, 17, 19, 20, 21, 22, and 23 for clarification and to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
811 KAR 1:095 & E. Disciplinary measures and penalties.
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 include EO 2008-668, which established the commission and transferred all authority, functions, and responsibilities of the Kentucky Horse Racing Authority to the commission; and (2) to amend Sections 1 through 3 and 5 through 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.
CABINET FOR HEALTH AND FAMILY SERVICES: Office of Health Policy: Health Provider Surveillance Data
902 KAR 19:030. Release of public data sets for health care discharge data. Carrie Banahan, executive director, and Chandra Venettozzi, health data administrator, represented the office.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to delete a superfluous statutory citation; and (2) to amend Section 2 to correct a technical error. Without objection, and with agreement of the agency, the amendments were approved.
Office of Inspector General: Division
906 KAR 1:160. Monitoring system for products containing ephedrine, pseudoephedrine, or phenylpropanolamine. Stephanie Brammer-Barnes, regulation coordinator, and Dave Sallengs, manager, represented the division.
Department for Medicaid Services: Medicaid Services
907 KAR 1:835 & E. Michelle P. Waiver services and reimbursement. Kerry Harvey, general counsel; Elizabeth Johnson, commissioner; and Stuart Owen, regulation coordinator, represented the department. Rick Christman, CEO of Employment Solutions; Richard P. Covery; and Darla Bailey and Barbara Henchey, Kentucky Association of Private Providers, appeared in opposition to this administrative regulation. Patty Dempsey, Executive Director of The Arc of Kentucky, appeared in support of this administrative regulation.
Representative Lee thanked the department and Protection and Advocacy for working hard to resolve the issues pertaining to this administrative regulation.
Mr. Christman stated that this administrative regulation was being modified to remove the requirement for independent case management by a provider in cases with an issue of continuity or insufficient numbers of case managers in the area. He also stated that, pursuant to the Mercer Report, there was a conflict of interest if a provider was also the case manager. He further stated disapproval of the proposed two (2) year continuation of case management performance by providers.
Ms. Dempsey thanked the department for amending this administrative regulation to provide for additional respite.
Mr. Covery stated that he was the father of a daughter with multiple disabilities and that her former case manager tended to place the needs of his daughter secondary to the interests of the parent company. He stated that he believed it was acceptable for a case manager to be affiliated with a provider company only if the two (2) operated at arm's length and were able to prove that the provider company has used some non-sister agency services.
Representative Lee stated that, in less-populated areas, there were not enough independent case managers, and some clients would be denied services under the Michelle P. program.
Ms. Johnson stated that the department had extended services despite its inability to afford the additional expense. She also stated that the department had compromised to include a transition period for those who may be unduly burdened by the independent case manager requirement. Additionally, the waiver would be effective only if CMS approved the request to amend the policy decision and allow grandfathering and a cut-off date for continued case management with provider interests.
Co-Chair Roeding stated that the administrative regulation provided for independent case management unless and until CMS agreed to amend the waiver. He also encouraged the department to continue to work with stakeholders as budget predicaments allow.
Ms. Henchey thanked those who have worked on the Michelle P. program and respite issues. She also stated that only one (1) issue remained that she felt to be contentious, the reimbursement rate for adult day care service units. The cost to restore the reimbursement rate would be neutral and that stakeholders interested in this issue were not present during the administrative regulation negotiations.
Ms. Bailey stated that the administrative regulation defined "adult day care level II", but cut the reimbursement rate on units of service. She also stated that this was a very small program with approximately 200 clients and that she supported a restoration of the reimbursement rate.
In response to a question by Senator Tapp, Ms. Johnson stated that overall there was an expansion of services even though the reimbursement rate for adult day care level II was reduced. She also stated that the overall expansion expense was a sixty-six (66) million dollar increase.
Ms. Bailey requested that the following written comments be included in the record of the meeting:
Adult Day Health Centers, licensed by the OIG office, emerged in the mid to late 1990s to deal with the growing medical needs of the aging population. These programs proved invaluable by allowing the frail and elderly to remain in the community and to reserve nursing level of care. As a result of the developmentally disabled population aging, a crisis emerged in which young adults with complex medical issues and needs required a day program that would be able to meet these complex needs while allowing the individual to continue to be served in the community. Many families, upon completion of the individual high school tenure, had no program for the child with special needs to attend. Social programs, we now call Adult Day Trainings, existed but were unable to accommodate particular needs such as nursing services, personal care needs, and the functioning level of some of the individuals.
By the late 1990s, several programs across the Commonwealth began to specialize in services to this specific group: young adults with special medical needs. In 2000, the Commonwealth recognized those programs as Adult Day Level IIs, a higher level of acuity, which warranted a higher rate from the more traditional senior adult day health programs. These programs participated by providing a sampling (snap shot) of an assigned day and proved to be serving 80% or more intellectually disabled and developmentally disabled young adults with the Home and Community Based waiver (HCBS). This allowed for a higher rate differential to be applied to these particular sites. To participate, any enrolled provider requests the date quarterly from DMS and follows the process.
Also, in April 2002, as a direct result of the passage of HB 144, a Commission on Services and Supports for People with Mental Retardation and Developmental Disabilities "Plan to Plan" for the 10 years began to address the extensive Supports for Community Living (SCL) waiting list and the SCL waiver began to expand "slots". Consumers, who had literally waited for years, were now being offered and receiving services. Several of these consumers required more intensive, medical-type services. As a result, Adult Day Level IIs began to accept the SCL waiver. Individuals that were not being served through traditional nonmedical day services were now able to receive day services that included nursing care and ancillary services.
In 2006, the Supports for Community Living (SCL) waiver made changes to Adult Day Training services. Services became classified as on-site and off-site. Due to the medical complexity of the consumers served in the SCL waiver, MH/MR and DMS agreed to add a $.50 add-on rate to on-site and off-site reimbursement rates to the ADH Level II's providers. In this agreement, Level IIs agreed to eliminate the Snap-5 intensity rate payment (20% enhanced rate).
Also, in 2006 and 2007, the Adult Day Health Level IIs met with numerous Medicaid officials to address the complexity of being a provider accepting multiple waivers and worked toward a definition of Adult Day Health Level II and toward streamlining provider requirements.
In August 2001, the HB 144 Commission recommended developing an alternative low cost waiver to serve individuals with less costly needs. (Kentucky's Plan from Dreams to Realities for Quality and Choice for all Individuals with Mental Retardation and other Developmental Disabilities, p. 12) The staff of the Department of Mental Health, advocates, consumers, and providers worked diligently to create a proposed waiver that some referred to as "SCL Lite" or the "KEI waiver." The ultimate goal of the proposed waiver was to provide person-centered, nonresidential services to individuals who were on the SCL waiting list (1769 individuals, per 9/17/01 report "HB 144"). After much discussion, the Cabinet for Health Services declined to submit the waiver.
In 2002, with the assistance of Protection and Advocacy, a class action lawsuit was filed on behalf of Michelle P. and nine others. In August 2006, the suit was settled and the hopes of the person-centered, nonresidential services reemerged. For individuals with intellectual disabilities and developmental disabilities living with their families, hope emerged that they could receive enhanced home and community-based services to assist them to remain in their homes as independently as possible.
The Michelle P. waiver has been viewed by some as a way to maximize our state general fund dollars that serve individuals. Currently, these dollars given through the Comprehensive Care Centers support individuals and families with services such as respite and companion services. It has been one of the goals of the Michelle P. waiver to provide a mechanism to bring services currently funded out of our state general funds into a waiver to maximize our federal match (70/30). Today, consumers are receiving multiple funding streams to package together the services they need in order to remain in the community with natural supports.
Whereas the Michelle P. program still does not address the waiting list for residential supports for individuals with intellectual disabilities and developmental disabilities (ID/DD), it has been viewed as an alternative for family members and individuals waiting with little or no services. These services will allow for the flexibility to maximize community-based options.
Providers of Medicaid waivers who serve individuals with ID/DD have advocated for such an alternative as the original SCL Lite or now the Michelle P. waiver to allow consumers who are receiving the Home and Community Based (HCBS) waiver (designed for the elderly and disabled) a more viable person-centered option.
The current Michelle P. administrative regulation defines ADH II, yet cuts the reimbursement rates from $3.00 or $3.50 a unit to $2.75 a unit. The HCBS rate is $3.12 per unit. ADH Level IIs are vital to the initial roll out of the Michelle P. waiver and to initiate state general fund cost-savings. In addition, it will allow a medical model day program to meet the needs of the more medically fragile individuals that are now homebound, many with aging caregivers. The Supports for Community Living waiver requires that staff complete a basic medication administration course or curriculum, whereas a licensed provider is required to provide at least one nurse on site at all times.
I am requesting that the Cabinet for Health and Family Services reconsider its rate elimination or reduction to the current Adult Day Health Level IIs.
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 Section 6 to create a new subsection to establish the enrollment caps for the next three (3) fiscal years of 3,000, 4,500, and 6,000 individuals; (3) to amend Section 7 to: (a) provide that, contingent upon approval by the Centers for Medicare and Medicaid Services and ending January 1, 2011, case management may be provided by an agency providing other Michelle P. waiver services if specified requirements are met; and (b) delete the requirement that respite services only be provided in the recipient’s residence or an ADHC center during posted hours of operation; (4) to amend Section 8 to: (a) clarify that respite provided as part of CDO (consumer-directed option) services may be provided in excess of the established cap on respite services provided in non-CDO settings; and (b) specify that a consumer’s twelve (12) month budget may encompass a service or combination of services if each service is in the consumer’s plan of care and approved by the department; (5) to amend Section 14 to incorporate by reference three documents mentioned in the administrative regulation; and (6) to amend Sections 1 to 10, 12, and 14 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 Family Support: Division
921 KAR 2:016. Standards for need and amount for the Kentucky Transitional Assistance Program (K-TAP). Virginia Carrington, branch manager; Elizabeth Caywood, policy analyst; and Mike Grimes, Adoption Services Branch Manager, represented the division.
Food Stamp Program
921 KAR 3:020 & E. Financial requirements.
In response to a question by Representative Ford, Ms. Caywood stated that the federal government would allow biweekly, rather than monthly, card disbursement, but to do so would require a systems' change.
Senator Tapp stated that, while the division was investigating moving to a biweekly, rather than monthly, card disbursement, please also investigate added costs of making this change.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph and Section 3 to correct a federal cross-reference citation; (2) to amend the NESSECITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 5 and 7 to make technical corrections and to comply with the drafting and format requirements of KRS Chapter 13A; and (3) to amend Section 3 to clarify that money withheld from certain income sources shall not be counted if the money is withheld to repay an overpayment. Without objection, and with agreement of the agency, the amendments were approved.
921 KAR 3:045 & E. Issuance procedures.
A motion was made and seconded to approve the following amendments: to amend Sections 1 and 3 through 5 to make technical corrections and to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Day Care
922 KAR 1:031. Repeal of 922 KAR 1:030. Selection and approval of adoptive parents.
922 KAR 1:050. State-funded adoption assistance.
922 KAR 1:060. Federal Title IV-E adoption assistance.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 2 and 5 to correct statutory citations and internal references; and (2) to amend Section 2 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
922 KAR 1:100. Public agency adoptions.
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 the STATUTORY AUTHORITY paragraph and Sections 1, 3, and 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.
922 KAR 1:140. Foster care and adoption permanency services.
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; and (2) to amend Sections 1, 3, 9, 10, and 11 for clarification and to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
The following administrative regulations were deferred to the January 13, 2009, meeting of the Subcommittee:
PERSONNEL CABINET: Personnel Cabinet, Classified
101 KAR 2:066 & E. Certification and selection of eligibles for appointment.
TOURISM, ARTS AND HERITAGE CABINET: Department of Fish and Wildlife Resources: Game
301 KAR 2:083 & E. Holding and intrastate transportation of captive cervids.
301 KAR 2:251. Hunting and trapping seasons and limits for furbearers.
301 KAR 2:300. Black bears. Dr. Karen Alexy, wildlife director; Steven Dobey, wildlife program coordinator; Jonathan Gassett, commissioner; and Catherine York, deputy general counsel, represented the department. Chet Hayes, Executive Director of United Trappers of Kentucky; John Phillips, Executive Director of Kentucky Hunters for the Hungry, Inc.; Michael Roberts, Vice President of United Bowhunters of Kentucky; and Representative Robin Webb appeared in support of this administrative regulation. Pam Rogers, State Director of the Humane Society of the United States, appeared in opposition to this administrative regulation.
Mr. Gassett stated that the department wished to defer this administrative regulation to the January 2009 meeting in order to address the firearms constitutionality issues. He stated that the department still wished to discuss the policy issues of black bear hunting in Kentucky at this meeting. He gave a brief history of black bear hunting in Kentucky, including that, in the past, hunting caused extirpation of the species and that, in recent years, the black bear population has stabilized, especially in the southeastern part of the state. Mr. Gassett stated that this administrative regulation did not allow hunting black bears with dogs, baiting bears, or selling harvested bear parts. He further stated that Pine Mountain had a no-hunting refuge area for the bears. He stated that, by having the hunt in December, female bears should be more protected since most of them would be in their dens in December. He also stated that this bear hunt did not serve the purpose of dealing with nuisance bears. He stated that the hunt would take place only in Pike, Letcher, and Harlan Counties.
Co-Chair Roeding thanked the department for its commitment to protecting bears.
In response to questions by Co-Chair Damron, Mr. Gassett stated that, in order to enforce the take limit for black bears, each hunter would be required to check by telephone at the end of each hunt day to determine how many bears had been taken thus far in the hunt. He also stated that a sportsman would not be cited if over ten (10) bears were taken during a day of the open season, and that the hunt would be ended on a day in which the limit had been reached or exceeded.
In response to a question by Senator Kerr, Mr. Gassett stated that Kentucky allows baiting, but not for black bears at this time. He also stated that baiting was not usually detrimental to a bear population but that the department was not considering allowing it anytime soon.
Representative Webb stated that she was unaware of any outcry from sportsmen for permission to bait black bears.
In response to a question by Senator Tapp, Mr. Gassett stated that a black bear permit would probably cost approximately twenty (20) dollars, but that the fee would have to be established in another administrative regulation.
In response to questions by Representative Weston, Mr. Gassett stated that it was not currently possible to determine the number of bears necessary for a huntable population, but that models and trend data show drastic increasing in spotting, illegal harvesting, and nuisance reports. He estimated 350 bears in the area of the proposed hunt. He also stated that the bears were primarily in Pike, Letcher, and Harlan Counties, but that hunting would not take place at the Pine Mountain bear refuge area.
Mr. Gassett stated the department's perspective on constitutional second amendment issues pertaining to this administrative regulation. He stated that surrounding states have comparable laws in place.
Mr. Phillips stated that it was essential for the department to regulate weapons in order to maintain resources. He also stated that Hunters for the Hungry provided venison for approximately 300,000 Kentuckians. He stated his opinion that this administrative regulation did not violate the second amendment of the United States Constitution.
Mr. Roberts stated that the United Bear Hunters of Kentucky wanted to hunt bear and did not want the department stymied in its enforcement of this administrative regulation.
In response to a question by Co-Chair Damron, Mr. Phillips stated that it was necessary for the department to regulate firearms during a hunt because it would otherwise be impossible to enforce administrative regulations pertaining to legal methods of taking. He also stated that, if an animal was shot with a firearm during bow-hunting season, it would likely not be possible to determine which hunter illegally shot the animal if firearms were permitted in the area of the hunt.
Ms. Rogers requested that the subcommittee oppose this administrative regulation because she stated that there were not enough bears to ensure that such a hunt would not destabilize the bear population. She stated that, because of the way the limit would be enforced, many more than ten (10) bears may be taken. She also stated that other states with such a low bear population did not allow hunting. She further stated that the administrative regulation did not adequately protect female bears and cubs. She stated that the department made the decision to allow the hunt prior to having complete data on black bear populations in the area.
In response to a question by Representative Ford, Ms. Rogers stated that the Humane Society did not have a specific number of bears that would indicate a population stable enough for a hunt and that Florida has a bear population of approximately 3,000, but they do not have a hunt; therefore, Kentucky would need at least more than 3,000 bears.
Representative Webb stated that she was certain a resolution would be forthcoming regarding the constitutionality of this administrative regulation. She also stated that the subcommittee should visit the Human Society's Web site to ascertain their agenda.
Mr. Gassett stated that all states with black bears do not have hunts, not necessarily because of conservation reasons, but because of political pressure. He also stated that the department would never have "complete" data on black bear populations because the scientific research was ongoing and bear populations fluctuated. He stated that the department's current estimate of the black bear population is a conservative one.
Co-Chair Damron stated his appreciation for the department's willingness to defer consideration of this administrative regulation in order to address the constitutionality of some of the provisions.
Senator Kerr requested that Ms. Rogers rebut previous testimony. Ms. Rogers stated that the Humane Society had been mischaracterized. She stated that she had never been dishonest and that her organization had never tried to stop other forms of hunting, but rather wished to stop certain abuses related to hunting. She also stated that she had had trouble getting the department to submit records through Freedom of Information requests. Without objection, and with agreement of the agency, this administrative regulation was deferred.
ENERGY AND ENVIRONMENT CABINET: Department of Environmental Protection: Division of Water: Water Quality
401 KAR 5:010. Operation of wastewater systems by certified operators.
Water Quality Standards
401 KAR 10:026. Designation of uses of surface waters.
401 KAR 10:029. General provisions.
401 KAR 10:030. Antidegradation policy implementation methodology.
401 KAR 10:031. Surface water standards.
Certified Operators
401 KAR 11:001. Definitions for 401 KAR Chapter 11.
401 KAR 11:010. Board of certification.
401 KAR 11:020. Standards of professional conduct for certified operators.
401 KAR 11:030. Wastewater treatment and collection operators-classification and qualification.
401 KAR 11:050. Operator certification.
401 KAR 11:060. Certification fees.
JUSTICE AND PUBLIC SAFETY CABINET: Kentucky Law Enforcement Council: Council
503 KAR 1:170. Career Development Program.
TRANSPORTATION CABINET: Department of Vehicle Regulation: Motor Vehicle Commission
605 KAR 1:060. Temporary off-site sale or display event.
LABOR CABINET: Department of Workplace Standards: General
803 KAR 2:300. General.
803 KAR 2:305. Powered platforms, manlifts, and vehicle-mounted work platforms.
803 KAR 2:306. Occupational health and environmental controls.
803 KAR 2:307. Hazardous materials.
803 KAR 2:309. General environmental controls.
803 KAR 2:315. Hand and portable powered tools and other hand-held equipment.
803 KAR 2:316. Welding, cutting, and brazing.
803 KAR 2:317. Special industries.
ENERGY AND ENVIRONMENT CABINET: Department for Natural Resources: Office of Mine Safety and Licensing
805 KAR 8:060. Criteria for the imposition and enforcement of sanctions against licensed premises.
PUBLIC PROTECTION CABINET: Department of Insurance: Authorization of Insurers and General Requirements
806 KAR 3:170. Annual audited financial reports.
Kentucky Horse Racing Commission: Thoroughbred Racing
810 KAR 1:015. Claiming races.
Harness Racing
811 KAR 1:075. Racing and track rules.
CABINET FOR HEALTH AND FAMILY SERVICES: Division of Family Support: K-TAP, Kentucky Works, Welfare to Work, State Supplementation
921 KAR 2:006. Technical requirements for the Kentucky Transitional Assistance Program
921 KAR 2:017. Kentucky works supportive services.
The following other business was addressed by the subcommittee:
A brief video in honor of Co-Chair Roeding's years of service to the Commonwealth was presented, and Co-Chair Roeding was issued a citation on behalf of the subcommittee in recognition of his retirement from the General Assembly.
Senator Pendleton thanked Co-Chair Roeding for his service to the Commonwealth.
Senator Tapp stated how much he had enjoyed working with Co-Chair Roeding.
Co-Chair Roeding stated that it is important to continue to do good work for the citizens of the Commonwealth as it relates specifically to administrative regulations.
David Nicholas stated his thanks for the hard work of Co-Chair Roeding and to all members who serve or have served on the Administrative Regulation Review Subcommittee.
The Subcommittee adjourned at 12:45 p.m. until January 13, 2009.