The February meeting of the Administrative Regulation Review Subcommittee was held on Monday, February 9, 2009, at 1:00 PM, in Room 149 of the Capitol Annex. Representative Leslie Combs, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Elizabeth Tori, Co-Chair; Representative Leslie Combs, Co-Chair; Senators Alice Forgy Kerr, Joey Pendleton, and Gary Tapp; Representatives Robert R. Damron, Danny Ford, and Jimmie Lee.
Guests: Becky Gilpatrick, Kentucky Higher Education Assistance Authority; Robert Brown, Jaime Rice, Alicia Sneed, Education Professional Standards Board; Mark Sipek, Kentucky Personnel Board; Beau Barnes, Teachers' Retirement; Richard Dobson, Ricky Haven, Department of Revenue; Michael Burleson, Kentucky Board of Pharmacy; Jeff Boler, James Grawe, Dr. Ed Hall, Frances Short, Kentucky Board of Veterinary Examiners; Cheryl Bentley, Michael West, Kentucky Board of Licensure and Certification for Dieticians and Nutritionists; Allen Hall, Carolyn Kyler, Board of Licensed Professional Counselors; Karen Alexy, Margaret Everson, Darin Moore, Catherine York, Kentucky Department of Fish and Wildlife Resources; Sandra Gruzesky, Franklin C. Hall, Jr., Julie W. Roney, Ralph Schiefferle, Division of Water; Sean Alteri, Millie Ellis, Division for Air Quality; Tony DeName, Department for Workforce Investment; Michael Bennett, Dan Chapman, Department of Housing, Buildings and Construction; Deborah Anderson, Shirley Eldridge, Phyllis Sosa, Department for Aging and Independent Living; Virginia Carrington, Elizabeth Caywood, Shari Sullivan, Steve Veno, Cabinet for Health and Family Services.
LRC Staff: Dave Nicholas, Donna Little, Sarah Amburgey, Emily Harkenrider, Karen Howard, Emily Caudill, Jennifer Beeler, and Laura Napier.
The Administrative Regulation Review Subcommittee met on Monday, February 9, 2009, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
KENTUCKY HIGHER EDUCATION ASSISTANCE AUTHORITY: Division of Student and Administrative Services: Commonwealth Merit Scholarship Program
11 KAR 15:090. Kentucky educational excellence scholarship (KEES) Program. Becky Gilpatrick, Student Aid Branch manager, represented the division.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 3, 4, and 7 to correct statutory citations; and (2) to amend Sections 1 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.
EDUCATION PROFESSIONAL STANDARDS BOARD: Board
16 KAR 6:010. Written examination prerequisites for teacher certifications. Robert Brown, director of professional learning and assessment; Jaime Rice, assessment consultant; and Alicia A. Sneed, director of legal services, represented the board.
A motion was made and seconded to approve the following amendments: to amend Sections 2 and 3 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
PERSONNEL BOARD: Board
101 KAR 1:325. Probationary periods. Mark Sipek, executive director, represented the board.
FINANCE AND ADMINISTRATION CABINET: Teachers' Retirement System: General Rules
102 KAR 1:300. Kentucky Teachers' Retirement System Trustees Education Program. Beau Barnes, deputy executive secretary and general counsel, represented the system.
Department of Revenue: Office of Sales and Excise Taxes: Sales and Use Tax; Registration and Collection
103 KAR 25:111. Repeal of 103 KAR 25:110. Richard Dobson, executive director, and Ricky Haven, director of the Division of Sales and Use Tax, represented the department.
Sales and Use Tax; Miscellaneous Retailer Occupations
103 KAR 27:130. Printing and related industries.
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.
Sales and Use Tax; Administration and Accounting
103 KAR 31:190. Alternate fuel, gasification, and renewable energy facility refunds on construction costs.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to correct statutory citations; and (2) to amend Sections 2, 3, 4, and 5 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
GENERAL GOVERNMENT CABINET: Kentucky Board of Pharmacy: Board
201 KAR 2:230. Special limited pharmacy - central refill pharmacy. Mike Burleson, executive director, represented the board.
201 KAR 2:310. Compounding for a practitioner's office or institutional administration.
A motion was made and seconded to approve the following amendments: to amend Sections 1 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.
Board of Licensure and Certification for Dieticians and Nutritionists: Board
201 KAR 33:020. Renewals. Cheryl Bentley, board chair; Frances Short, director of the Division of Occupations and Professions; and Michael West, assistant attorney general, represented the board.
In response to questions by Representative Ford, Ms. Bentley stated that LRC staff had notified the board that the authorizing statute for this administrative regulation specifically required revocation without notice. Mr. West stated that the board intended to send the notice as a courtesy.
Subcommittee staff stated that the legislative members may want to consider amending the statute to provide for notice.
A motion was made and seconded to approve the following amendment: to amend Section 3 to delete subsection (2). Without objection, and with agreement of the agency, the amendment was approved.
Board of Licensed Professional Counselors: Board
201 KAR 36:070. Education requirements. James Grawe, assistant attorney general and general counsel for the board; Allen Hall, board chair; and Frances Short, director of the Division of Occupations and Professions, represented the board.
A motion was made and seconded to approve the following amendments: to amend Section 1 to clarify the educational requirements for an applicant with a degree in a related field. Without objection, and with agreement of the agency, the amendments were approved.
TOURISM, ARTS AND HERITAGE CABINET: Department of Fish and Wildlife Resources: Game
301 KAR 2:132. Elk depredation permits, landowner cooperator permits, and quota hunts. Karen Alexy, wildlife division director; Darin Moore, administrative director; and Catherine York, deputy general counsel, represented the department.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to add KRS 150.120(4); (2) to amend Section 5 to: (a) provide that persons who hold their CCDW may carry a concealed deadly weapon while hunting; and (b) prohibit other persons from carrying certain items while hunting rather than prohibiting hunting while carrying those items; and (3) to amend Sections 3 through 5, and 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.
301 KAR 2:221 & E. Waterfowl seasons and limits.
301 KAR 2:222 & E. Waterfowl hunting requirements.
ENERGY AND ENVIRONMENT CABINET: Department for Environmental Protection: Division of Water: Public Water Supply
401 KAR 8:010. Definitions for 401 KAR Chapter 8. Sandy Gruzesky, executive director, and Julie W. Roney, Division of Water coordinator, represented the division.
In response to a question by Senator Tapp, Subcommittee staff stated that most of the proposed amendments to 401 KAR Chapter 8 were the result of changes to KRS Chapter 13A, which allowed administrative regulations to cross-reference federal regulations by citation rather than incorporating them by reference.
401 KAR 8:020. Public and semipublic water supplies; general provisions.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correct 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.
401 KAR 8:061. Repeal of 401 KAR 8:060, 8:162, 8:350, 8:400, and 8:420.
401 KAR 8:070. Public notification.
401 KAR 8:075. Consumer confidence reports.
401 KAR 8:150. Disinfection, filtration, and recycling.
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.
401 KAR 8:200. Microbiological monitoring.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correct citations; and (2) to amend Section 3 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
401 KAR 8:250. Inorganic and organic chemical sampling, analytical techniques, and maximum contaminant levels.
A motion was made and seconded to approve the following amendments: to amend Sections 1 and 2 to make a technical correction. Without objection, and with agreement of the agency, the amendments were approved.
401 KAR 8:300. Lead and copper.
A motion was made and seconded to approve the following amendment: to amend the RELATES TO paragraph to correct a citation. Without objection, and with agreement of the agency, the amendment was approved.
401 KAR 8:510. Disinfectant residuals, disinfection by-products, and disinfection by-product precursors.
In response to a question by Representative Ford, Ms. Roney stated that requirements that were new to this administrative regulation had been in effect at the federal level for years and, in essence, this amendment did not provide new requirements for public water supplies.
401 KAR 8:550. Radionuclides.
A motion was made and seconded to approve the following amendment: to amend Section 1 to make a technical correction. Without objection, and with agreement of the agency, the amendment was approved.
Division of Air Quality: New Source Standards
401 KAR 59:015. New indirect heat exchangers. Sean Alteri, assistant director, and Millie Ellis, environmental technologist, represented the division.
A motion was made and seconded to approve the following amendments: to amend Sections 7 and 8 to make technical corrections. Without objection, and with agreement of the agency, the amendments were approved.
401 KAR 59:017. Repeal of 401 KAR 59:016.
Existing Source Standards
401 KAR 61:005. General provisions.
EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Department for Workforce Investment: Office of Employment and Training: Unemployment
787 KAR 1:090. Unemployed worker's reporting requirements. Tony DeName, director, represented the office.
In response to a question by Representative Lee, Mr. DeName stated that the office had had difficulty in the last six (6) weeks with overload to the internet and telephone systems for filing for unemployment. He stated that the problems seemed to have been fixed. He also stated that the problems arose because most applicants filed on the same day, Sunday, despite the fact that they could file any day.
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 2 and 3 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
PUBLIC PROTECTION CABINET: Department of Housing, Buildings, and Construction: Division of Building Code Enforcement: Manufactured Homes and Recreational Vehicles
815 KAR 25:080 & E. Requirements for certified installer seals and certification of manufactured home installers. Michael D. Bennett, staff attorney, and Dan Chapman, supervisor, represented the division.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct statutory citations and make a technical correction; (2) to amend Sections 1 through 3, 5, and 6 to comply with the drafting and format requirements of KRS Chapter 13A; and (3) to amend Section 6 to revise material incorporated by reference. Without objection, and with agreement of the agency, the amendments were approved.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Aging and Independent Living: Aging Services
910 KAR 1:240. Certification of assisted-living communities. Deborah Anderson, commissioner, and Phyllis Sosa, branch manager, represented the department.
Department for Income Support: Family Support
921 KAR 1:410. Child support collection and enforcement. Steve Veno, deputy commissioner, represented the department.
921 KAR 1:430. Child support administrative hearings.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add a statutory 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 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.
Department for Community Based Services: Division for Family Support: K-TAP, Kentucky Works, Welfare to Work, State Supplementation
921 KAR 2:006. Technical requirements for the Kentucky Transitional Assistance Program (K-TAP). Virginia Carrington, branch manager, and Elizabeth Caywood, internal policy analyst, represented the department.
Ms. Caywood stated that comments had been received Tuesday, and the statutory deadline for the agency to propose amendments had passed. She stated that the amendment was not substantive but clarified existing provisions. Representative Lee made a motion, seconded by Senator Pendleton, to amend this administrative regulation and 921 KAR 2:370 as requested by the agency.
A motion was made and seconded to approve the following amendment: to amend Section 2 to redefine the term, “barriers”, to mean a limitation in an individual’s ability to become employed and self-sufficient or to comply with K-TAP requirements. Without objection, and with agreement of the agency, the amendment was approved.
921 KAR 2:017. Kentucky works supportive services.
921 KAR 2:370 & E. Technical requirements for Kentucky Works.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to clarify a definition; (2) to amend Section 2 to redefine the term, “barriers”, to add to the allowable activities list in paragraph (c)12. of this section, and for other minor changes; and (3) to amend Section 3(7) to clarify that if an individual with an ADA disability was unable to participate in a countable work activity, the individual shall be provided with reasonable accommodations or program modifications. Without objection, and with agreement of the agency, the amendments were approved.
Food Stamp Program
921 KAR 3:035. Certification process.
A motion was made and seconded to approve the following amendments: to amend Sections 2, 5, 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.
921 KAR 3:042. Food stamp employment and training program.
A motion was made and seconded to approve the following amendments: to amend Sections 3, 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.
921 KAR 3:050. Claims and additional administrative provisions.
921 KAR 3:060. Administrative disqualification hearings and penalties.
921 KAR 3:090. Simplified assistance for the elderly program or "SAFE".
A motion was made and seconded to approve the following amendments: to amend Sections 1 and 3 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
The following administrative regulations were deferred to the March 9, 2009, meeting of the Subcommittee:
FINANCE AND ADMINISTRATION CABINET: Kentucky Employees' Retirement System: Personnel
105 KAR 1:370. Kentucky retirement systems personnel policies.
105 KAR 1:440. Kentucky retirements systems trustee education program.
GENERAL GOVERNMENT CABINET: Kentucky Board of Veterinary Examiners: Board
201 KAR 16:015. Fees. James Grawe, assistant attorney general and general counsel for the board; Dr. Ed Hall, assistant director of animal health for the Kentucky Department of Agriculture and a board member; and Frances Short, director of the Division of Occupations and Professions, represented the board.
In response to questions by Representative Lee, Dr. Hall stated that the board had reported the fee adjustment to the Kentucky Veterinary Association, but that he didn't know if the association had notified each individual veterinarian. He also stated that the board's financial analysts had indicated that, without the fee increase, the board would begin operating with a negative balance. He did not have the exact financial data with him. Mr. Grawe stated that a newsletter was sent to each veterinarian with information regarding the fee adjustment.
Representative Lee stated that a separate letter was necessary to notify each veterinarian because members may not have read the entire newsletter. He requested a commitment from the board that each licensed veterinarian would be sent a letter regarding the fee increase prior to the effective date of this administrative regulation. The board agreed.
In response to questions by Co-Chair Tori, Dr. Hall stated that the fee had not been increased in at least twenty (20) years and that the adjustment was needed because the structure and frequency of licensure had changed. He stated that the fee was the board's only source of revenue and that, while it was the only way to correct the expected deficit, their financial analysts chose the lowest fee increase that would resolve the expected deficit.
In response to a question by Representative Ford, Dr. Hall stated that $11,000 had been swept in fiscal year 2008 and that $139,900 was expected to be swept in fiscal year 2009 for use by the state's general fund.
In response to a question by Senator Pendleton, Dr. Hall stated that the board currently had funds they expected to be swept in fiscal year 2009.
Senator Pendleton stated that a board should only raise fees to cover costs and should not raise fees to an amount so that money would remain to be swept.
Senator Tapp requested that the board defer consideration of this administrative regulation until the March meeting of the subcommittee. His motion was seconded by Representative Ford. Mr. Grawe stated that the agency would agree to the deferral request.
Co-Chair Tori requested that the board defer consideration of this administrative regulation and stated that the subcommittee needed exact justification in the form of financial data regarding swept funds, funds expected to be swept, and how much of the fee increase would be expected to be swept. Without objection, and with agreement of the agency, this administrative regulation was deferred.
Representative Lee requested that the board return to the subcommittee meeting in March to report the board's actual financial needs.
Board of Nursing: Board
201 KAR 20:400. Delegation of nursing tasks.
Board of Physical Therapy: Board
201 KAR 22:020. Eligibility and credentialing procedure.
201 KAR 22:040. Procedure for renewal or reinstatement of a credential for a physical therapist or a physical therapist assistant.
201 KAR 22:053. Code of ethical standards and standards of practice for physical therapists and physical therapist assistants.
Department of Agriculture: Division of Regulation and Inspection: Amusement Rides
302 KAR 16:090. Rides and attractions not included in the definition of amusement ride or attraction.
302 KAR 16:100. Operate amusement ride or device defined.
302 KAR 16:110. Violations, revocations, and suspensions of business identification number.
302 KAR 16:120. Inflatable rides or attractions.
302 KAR 16:130. Maintenance and repair amusement ride or attractions.
ENERGY AND ENVIRONMENT CABINET: Department for Environmental Protection: Division of Water: 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.
JUSTICE AND PUBLIC SAFETY CABINET: Kentucky Law Enforcement Council: Council
503 KAR 1:140. Peace officer, telecommunicator, and court security officer: professional standards.
EDUCATION CABINET: Kentucky Board of Education: Department of Education: Board
702 KAR 3:090. Depository bond, penal sum.
EDUCATION AND WORKPLACE DEVELOPMENT CABINET: Department for Workforce Investment: General Admission
780 KAR 1:010. Kentucky state plan for career and technical education.
Management of the Kentucky TECH System
780 KAR 2:010. Administration of area technology centers.
780 KAR 2:060. Discipline of students.
780 KAR 2:110. Student medical and accident insurance.
780 KAR 2:140. Tuition and fees.
Personnel System for Certified and Equivalent Employees
780 KAR 3:010. Classification plan.
780 KAR 3:020. Compensation plan.
780 KAR 3:030. Appointments.
780 KAR 3:035. Employee evaluations.
780 KAR 3:040. Special appointments.
780 KAR 3:050. Employment lists.
COUNCIL ON POSTSECONDARY EDUCATION: Council
785 KAR 1:010. GED Testing Program.
ENERGY AND ENVIRONMENT CABINET: Department for Natural Resources: Office of Mine Safety and Licensing: Division of Mining
805 KAR 5:030. Prohibition against working or traveling under an unsupported roof; penalties.
Miner Training, Education, and Certification
805 KAR 7:060. Program approval.
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: Agents, Consultants, Solicitors, and Adjusters
806 KAR 9:070. Examinations.
806 KAR 9:310. Life settlement broker license and notification.
806 KAR 9:320. Life settlement provider license.
Kentucky Horse Racing Commission: Harness Racing
811 KAR 1:070 & E. Licensing standardbred racing.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Medicaid Services: Division of Community Alternatives: Medicaid Services
907 KAR 1:585. Estate recovery.
907 KAR 1:645. Resource standards for Medicaid.
907 KAR 1:650. Trust and transferred resource requirements for Medicaid.
907 KAR 1:655. Spousal impoverishment and nursing facility requirements for Medicaid.
Department for Aging and Independent Living: Guardianship
910 KAR 2:040. Service provisions for adult guardianship.
910 KAR 2:050. Compensation for guardianship program services.
Other Business:
Subcommittee staff introduced Representative Leslie Combs and stated that Representative Weston had left the subcommittee and Representative Damron had resigned as Co-Chair, but remained a member of the subcommittee. Representative Lee made a motion, seconded by Representative Ford, that Representative Combs be nominated for House Co-Chair. Representative Combs accepted the nomination. Representative Lee made a motion, seconded by Representative Ford, to end House Co-Chair nominations. Representative Combs was unanimously endorsed as House Co-Chair of the subcommittee.
Senator Tapp stated that he had recently attended the Health and Environmental Issues summit in Chicago and, based on information he received at that conference, he expected federal regulations to be promulgated that would impact health and environmental administrative regulations in Kentucky, especially administrative regulations relating to coal and coal mining.
The Subcommittee adjourned at 1:55 p.m. until March 9, 2009.