The March meeting of the Administrative Regulation Review Subcommittee was held on Monday, March 8, 2010, at 12:00 PM, in Room 149 of the Capitol Annex. Senator Elizabeth Tori, 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 David Givens, Alice Forgy Kerr, and Joey Pendleton; Representatives Danny Ford, and Jimmie Lee.
Guests: Becky Gilpatrick, Melissa Justice, Kentucky Higher Education Assistance Authority; Mark Sipek, Personnel Board; DeVon Hankins, Don Richardson, Lisa Swiger, Mark Johnson, Tom Crawford, Frank Dempsey, Robert Carter, Mike Grammer, Finance and Administration Cabinet; Joyce Bonick, Scott Majors, Board of Nursing; James Grawe, Vivian Rodes, Board of Podiatry; Timothy Robertson, Board of Licensed Professional Counselors; Amy Barker, James Erwin, Scott Haas, Al Parke, Philip Parker, LaDonna Thompson, Steve Lynn, Department of Corrections; Caleb Asbridge, Miranda Denney, Joslyn Olinger Glover, Department of Juvenile Justice; William Nold, Department of Insurance; Dawn Bellis, George Mann, Richard Moloney, Housing, Buildings and Construction; Tom Underwood, Kentucky Fire and Sprinkler Contractors Association; Jack Reckner, Kentucky Association of Fire Chiefs; David Barron, Department of Public Advocacy; Reverend Patrick Delahanty, Kentucky Coalition Against the Death Penalty; Kate Miller, American Civil Liberties Union.
LRC Staff: Dave Nicholas, Donna Little, Sarah Amburgey, Chad Collins, Emily Harkenrider, Karen Howard, Emily Caudill, Jennifer Beeler, and Laura Napier.
The Administrative Regulation Review Subcommittee met on Monday, March 8, 2010, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
KENTUCKY HIGHER EDUCATION ASSISTANCE AUTHORITY: Division of Student and Administrative Services: Kentucky Higher Education Assistance Authority
11 KAR 4:080. Student aid applications. Becky Gilpatrick, Student Aid Branch Manager, and Melissa Justice, senior associate counsel, represented the authority.
PERSONNEL BOARD: Board
101 KAR 1:325. Probationary periods. Mark Sipek, executive director, represented the board.
FINANCE AND ADMINISTRATION CABINET: Department of Revenue: Office of Income Taxation: Forms
103 KAR 3:040 & E. Income Tax Forms Manual. Mark Johnson, staff analyst, and Don Richardson, executive director, represented the office.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1 through 3 to comply with the drafting requirements of KRS Chapter 13A; and (2) to amend Section 3 to incorporate by reference a newer edition of Form 5695-K, Energy Efficiency Products Tax Credit. Without objection, and with agreement of the agency, the amendments were approved.
Office of Property Valuation: Ad Valorem Tax; Administration
103 KAR 5:180 & E. Procedures for sale of certificates of delinquency by county clerks. Tom Crawford, policy advisor, and Frank Dempsey, staff attorney, represented the office.
In response to questions by Representative Ford, Mr. Crawford stated that fee standards were established by statute. Mr. Dempsey stated that if a violation of the statute was determined to have occurred, the violator would no longer be able to register.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correct a statutory citation; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph 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 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.
Division of Miscellaneous Taxes: Selective Excise Tax; Motor Fuels
103 KAR 43:310. Subjobber issuance of refund invoices. Mike Grammer, policy analyst, represented the division.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct 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 add definitions for terms used within this administrative regulation; and (4) 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.
GENERAL GOVERNMENT CABINET: Board of Nursing: Board
201 KAR 20:161. Investigation and disposition of complaints. Joyce A. Bonick, credentials manager, and Scott D. Majors, staff attorney, represented the board.
201 KAR 20:370. Applications for licensure and registration.
201 KAR 20:411. Sexual assault nurse examiner program standards and credential requirements.
201 KAR 20:470. Dialysis technician credentialing requirements and training program standards.
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.
Board of Podiatry: Board
201 KAR 25:012 & E. Licensing examinations. Jim Grawe, assistant attorney general, and Vivian Rodes, DPM, secretary, represented the board.
In response to a question by Co-Chair Tori, Dr. Rodes stated that the national average passing score requirement was seventy (70) percent and that the board wanted to lower its passing score requirement from seventy-five (75) percent to seventy-one (71) percent in order to ensure an adequate opportunity for licensure while still maintaining more stringent criteria than average.
In response to a question by Co-Chair Combs, Dr. Rodes stated that most examination scores were at least seventy-five (75) percent.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY 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 Section 1 to: (a) establish the examination requirements; and (b) 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 Licensed Professional Counselors: Board
201 KAR 36:060. Qualifying experience under supervision. Timothy Robertson, board chair; Jim Grawe, assistant attorney general; and Frances Short, executive director, Office of Occupations and Professions, represented the board.
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; (3) to amend Sections 1 through 5, 7, and 8 to comply with the drafting and format requirements of KRS Chapter 13A; and (4) to update the Supervisory Agreement form incorporated by reference. Without objection, and with agreement of the agency, the amendments were approved.
JUSTICE AND PUBLIC SAFETY CABINET: Department of Juvenile Justice: Child Welfare
505 KAR 1:160 & E. Department of Juvenile Justice Policies and Procedures: treatment program for juvenile sexual offenders. Caleb Asbridge, assistant director, Program Services; Miranda Denney, director, Community and Mental Health Services; and Joslyn Olinger Glover, staff attorney, represented the department.
PUBLIC PROTECTION CABINET: Department of Insurance: Health and Life Division: Insurance Contract
806 KAR 14:005. Rate and form filing procedures for life insurances, life settlements providers, and life settlement brokers. William J. Nold, director, represented the division.
A motion was made and seconded to approve the following amendments: to amend Sections 1 and 11 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 Housing, Buildings and Construction: Division of Building Code Enforcement: Kentucky Building Code
815 KAR 7:120 & E. Kentucky Building Code. Dawn M. Bellis, general counsel; George Mann, deputy commissioner; and Richard Moloney, commissioner, represented the division. Jack Reckner, Kentucky Association of Fire Chiefs, and Tom Underwood, executive director, Kentucky Fire Sprinkler Contractors Association, appeared in support of this administrative regulation.
Mr. Reckner and Mr. Underwood expressed thanks to the division for making additional amendments to this administrative regulation.
Amendments were approved at the February 8 meeting of the Subcommittee.
A motion was made and seconded to approve the following additional amendments: (1) to amend Section 3 to revise the Automatic Sprinkler Review Fee Schedule; and (2) to amend Section 5 to update the Kentucky Building Code to include the revised fee schedule. The revisions to the fee schedule included reducing the proposed fee increase by twenty-five (25) dollars for the inspection of more than 201 sprinkler heads and tiering inspections of 200 sprinklers into three (3) groups, rather than one (1) group. Without objection, and with agreement of the agency, the amendments were approved.
JUSTICE AND PUBLIC SAFETY CABINET: Department of Corrections: Capital Punishment
501 KAR 16:001. Definitions for 501 KAR 16:280 to 16:340. Amy Barker, assistant general counsel; Steve Lynn, assistant general counsel; and LaDonna Thompson, commissioner, represented the department. David M. Barron, assistant public advocate, Kentucky Department of Public Advocacy; Reverend Patrick Delahanty, chair, Kentucky Coalition to Abolish the Death Penalty, and designated representative, Catholic Conference of Kentucky; and Kate Miller, program associate, American Civil Liberties Union of Kentucky, appeared in opposition to these administrative regulations.
Co-Chair Tori stated that capital punishment was provided for by statutes established by the General Assembly. As background, she explained that these administrative regulations did not establish capital punishment, but provided the protocol details of how an execution was to be performed. She stated that the Kentucky Supreme Court decision in the case of Bowling v. Department of Corrections required the department to promulgate these administrative regulations.
In response to a request by Co-Chair Tori to summarize these administrative regulations, Ms. Barker stated that: (1) 501 KAR 16:001 established definitions; (2) 501 KAR 16:290 established pre and post execution procedures; (3) 501 KAR 16:300 established requirements for witnesses and visitors; (4) 501 KAR 16:310 established requirements for medical and mental health monitoring prior to execution; (5) 501 KAR 16:320 established qualifications for execution team members; (6) 501 KAR 16:330 established the lethal injection protocol; and (7) 501 KAR 16:340 established the electrocution protocol.
Ms. Miller stated that these administrative regulations did not comply with the intent of the First Amendment to the United States Constitution, which protected the rights of the media. She stated that the media should be allowed access to all parts of an execution process. She cited examples of difficult or improperly conducted executions, parts of which were conducted without media oversight. She recommended amending the protocol to provide greater access for media personnel.
In response to a question by Representative Ford, Ms. Miller stated that she would prefer an amendment to the protocol that would eliminate the curtain used during certain parts of the execution to shield pre and post execution preparations. If eliminating the curtain was not a viable option, she requested that the curtain not be closed to media. She added that other speakers would include additional amendment recommendations to these administrative regulations and that she also supported the amendments the other speakers would propose.
Reverend Delahanty requested that the Subcommittee find these administrative regulations deficient because the protocols did not reflect the statutorily declared intent of the legislature, which did not place statutory limits on attending the execution process in its entirety. He cited the execution of Mr. Harold McQueen in 1997 as precedence of a Kentucky execution during which the curtain remained open at all times. The proposed protocol reflected a change in previous execution procedures, and the change placed more stringent limits on access to execution procedures than the prior process. He requested more disclosure on drugs used to paralyze a condemned person during an execution because of concern that the use of pancuronium bromide may prevent a person being executed from manifesting signs of pain. He also requested that the Subcommittee find these administrative regulations deficient because the protocols did not specifically provide that state employees with conscientious objections to capital punishment would be exempted from direct or indirect participation in executions.
In response to questions by Senator Pendleton, Reverend Delahanty stated that taxpayers should be permitted access to all activities pertaining to execution because the taxpayers funded the actions and because the actions were conducted on behalf of and in the name of the taxpayers.
Senator Pendleton stated that executions should be private and not open to the public. He stated that it was not a requirement that taxpayers witness an execution and that it was inappropriate to encourage a media frenzy during a person's death.
Mr. Barron stated that he appeared on behalf of numerous death-row inmates he represented. He thanked the Department of Corrections for making amendments to these administrative regulations after public comments, but he still had three (3) areas of concern. With regard to the public hearing held to allow public input on these proposed administrative regulations, he stated that multiple death-row inmates had requested to participate in the public hearing via videoconferencing but were not permitted to do so by the Department of Corrections. He stated that, although written comments were accepted, many of his clients were illiterate, and without the option of videoconferencing, were disenfranchised from participation in the promulgation process.
Mr. Barron stated that these administrative regulations should be found deficient by the Subcommittee because the department failed to respond to some of the comments received during the public comment period. He stated that the comments not responded to by the department pertained to: maintaining life if a stay of execution was granted, the recommendation that potassium chloride be removed from the chemicals approved for use during a lethal injection execution, visitation on the day of execution, and the recommendations to ask defense counsel if a stay of execution is in place or to postpone an execution if a determination on a motion for a stay of execution is pending. He stated that the department's responses to the comments sometimes provided explanations that were not specifically provided for in the administrative regulations; therefore, the department was admitting plans to regulate beyond the administrative regulation, which violated KRS Chapter 13A. He further added that the department failed to explain why amendments were not made to provide access to all portions of an execution in order to seek legal recourse in the event of a violation of the Eighth Amendment to the United States Constitution. He stated that the Subcommittee should find the administrative regulations deficient because the department failed to respond adequately in the statement of consideration, which resulted in a violation of the Administrative Procedures Act.
Mr. Barron stated his opinion that these administrative regulations did not comply with Kentucky statutes. He stated that the protocols allowed intravenous lines to be inserted into condemned persons by execution team members that may include an EMT, a phlebotomist, or a military corpsman. Mr. Barron stated that this provision appeared to be in conflict with an existing Kentucky statute that prohibited an EMT, a phlebotomist, or a military corpsman from inserting an intravenous line. Additionally, administrative regulations did not explain what the lethal injection chemicals did or why they were used; therefore, the public was unable to make informed public comments during the public comment period, and the terms used and lack of information violated KRS 13A.222(4)(a), which required "plain and unambiguous words that are easily understood by laymen."
Mr. Barron stated that these administrative regulations violated KRS 13A.222(4)(a) by referring to "nurse visits and checks." He stated that the administrative regulations did not differentiate between a "visit" and a "check"; therefore, the terms were ambiguous, in violation of the statutory requirement for "plain and unambiguous words." Additionally, he said that forms required to be completed by condemned persons prior to execution were not incorporated by reference in these administrative regulations. Also the department failed to include information required by the Kentucky Supreme Court, including: the volume and concentration of the chemicals used for lethal injection, if the chemicals used for lethal injection would be injected manually or by a machine in another room connected by intravenous lines, and criteria to establish the time for an execution. He added that execution time was especially important in legal matters that were governed by deadlines. He asked how an attorney or court would be able to meet legal deadlines if they were unable to determine the execution time.
Mr. Barron made recommendations for amendments to these administrative regulations. First, he recommended removing the thirty (30) minute limitation on end of life rituals and guaranteeing the option for a spiritual advisor visit with the condemned person on the day of execution. Personal visitors should be allowed to bring family photographs to visits and personal visitors, including visits from nonattorney members of the legal team, should be allowed to visit on the day of execution. More than one (1) member of the legal team should be allowed to visit at a time on the day of execution. Legal visits on the day of execution should be permitted less than three (3) hours prior to the scheduled execution and up to fifteen (15) minutes prior to the execution. A spiritual advisor should be allowed to visit the condemned person until one (1) hour prior to the scheduled execution. Mr. Barron also recommended that the administrative regulations should provide a requirement that the warden release the time of execution an established number of days prior to the execution. Viewing curtains should remain open for the full duration of the execution. The volume and concentration of lethal injection chemicals should be clearly established in the administrative regulations. Kentucky lethal injection should be conducted through a barbiturate-only protocol, which would exclude pancuronium bromide. The protocol should specify what chemicals and equipment are required on the "crash cart" that is located with the crash cart operator just outside the execution chamber.
Monitoring for consciousness during execution should be included in the protocol. Lastly, he stated that a defense team member should be asked if a stay of execution is in place. Executions should be postponed if a determination on a motion for a stay of execution is pending.
Ms. Barker responded to Mr. Barron's comments by stating that the Department of Corrections did not have authority to require agencies other than the department to provide a conscience clause so that state employees in other agencies may opt out of participating in an execution. She stated that the department was unable to provide teleconferencing so that death-row inmates could participate in the public hearing because the needed facilities were too small and were unavailable at the time of the hearing. She stated that the department had made a good faith effort to respond to all comments received during the public hearing and public comment period. She added that visitation provisions for spiritual advisors and legal counsel were amended in response to comments made during the public comment period. The department did not have the authority to postpone an execution because there was a pending court determination regarding a motion for a stay of execution. Only the Governor of the Commonwealth of Kentucky or a court had this authority.
Steve Lynn stated that the First Amendment to the United States Constitution did not provide a right to an unfettered view of the execution preparation. He stated that preparation for an execution did not constitute the execution itself. He added that attendance at an execution was established by Kentucky statute, not by the United States Constitution.
Co-Chair Tori stated that the United States Supreme Court, in Baze v. Rees, determined that Kentucky's protocol was consistent with the Eighth Amendment to the United States Constitution. She thanked the Department of Corrections for their work to develop the protocols.
In response to questions by Representative Ford, Mr. Barron stated that he opposed the death penalty, but appeared at the Subcommittee meeting in order to discuss concerns he had regarding the protocols established by the administrative regulations. He stated that, if his suggested revisions were made, he would not favor the death penalty but would not oppose the promulgation of these administrative regulations. He stated that his salary came from the Department for Public Advocacy and that he was appearing at the Subcommittee meeting on behalf of many death-row inmates. He stated that he would provide the Subcommittee members with the budget for the Department for Public Advocacy as a follow-up to the Subcommittee meeting.
In response to a question by Co-Chair Tori, Mr. Barron stated that he had recommended that the protocols provide more than the two (2) minute limit for the last comments of the condemned person in case an apology for the comfort of the victim's family may take longer. He stated that it was not feasible to establish an execution protocol for murder victims.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 1 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
501 KAR 16:290. Preliminary and post execution procedures condemning concerning condemned person.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 2, 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.
501 KAR 16:300. Execution procedures concerning witnesses, visitors, and demonstrators.
A motion was made and seconded to approve the following amendments: (1) to amend Section 4 regarding visitation with a condemned inmate on the day of execution to permit: (a) the minister of record to visit up to two (2) hours before the execution, rather than three (3) hours; (b) an attorney of the inmate to request additional visits until three (3) hours before the execution, rather than four (4) hours; and (c) one (1) attorney representing the inmate to have phone contact at one (1) hour prior to the execution if the contact is needed for matters concerning a stay; (2) to add a new Section 7 to establish notice procedures if a stay of execution is issued, including procedures for the warden to designate a specific phone number to be used in providing the notice; (3) to add a new Section 8 to establish procedures for legal counsel or staff to obtain medical records of the condemned inmate; and (4) to amend Sections 4 and 5 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.
501 KAR 16:310. Pre-execution medical actions.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to clarify that the designated medical professional shall observe and evaluate the condemned inmate's medical condition during the week prior to the execution at least twice on nonconsecutive days; (2) to amend Section 3 to clarify the required procedures if the warden or designated medical professional receives information that the condemned inmate may be insane as defined by KRS Chapter 431, which would cause the execution to be suspended; and (3) to amend Sections 1, 2, and 3 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.
501 KAR 16:320. Execution team qualifications.
A motion was made and seconded to approve the following amendments: to amend Sections 1 and 2 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.
501 KAR 16:330. Lethal injection protocol.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2 regarding preliminary execution procedures to require: (a) at least two (2) phone lines be available on the day of execution for communication with the courts and counsel; (b) the warden to verify that the phones are working prior to the execution; and (c) a member of the IV team to determine the appropriate size needle to be used by examining the inmate's veins within the five (5) hours prior to the execution; (2) to amend Section 6 regarding volunteer inmates to specify stabilization procedures if the inmate changes his mind; and (3) to amend Sections 1 and 5 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.
501 KAR 16:340. Electrocution protocol.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 regarding preliminary execution procedures to: (a) require at least two (2) phone lines to be available on the day of execution for communication with the courts and counsel; (b) require the warden to verify that the phones are working prior to the execution; and (c) specify the procedures for making the sodium chloride solution; (2) to amend Section 5 regarding volunteer inmates to specify stabilization procedures if the inmate changes his mind; and (3) to amend Sections 1, 4, and 5 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.
The following administrative regulations were deferred to the April 2010, meeting of the Subcommittee:
PERSONNEL CABINET: Personnel Cabinet, Classified
101 KAR 2:066 & E. Certification and selection of eligibles for appointment.
FINANCE AND ADMINISTRATION CABINET: Kentucky Teachers' Retirement System: General Rules
102 KAR 1:160. Annuity tables.
102 KAR 1:225. General compliance with federal tax laws.
Department of Revenue: Division of Sales and Use Taxes: Sales and Use Tax; Administration and Accounting
103 KAR 31:310. Sourcing of digital property.
Office of the Secretary: Purchasing
200 KAR 5:314. Disclosure of contractor's financial records and information to certain governmental entities.
200 KAR 5:315. Suspension.
GENERAL GOVERNMENT CABINET: State Board of Examiners and Registration of Landscape Architects: Board
201 KAR 10:050. Fees.
ENERGY AND ENVIRONMENT CABINET: Department for Environmental Protection: Division of Waste Management: Solid Waste Facilities
401 KAR 47:090. Solid waste permit fees.
Department for Natural Resources: Division of Mine Permits: Permits
405 KAR 8:015 & E. Processing assessments.
JUSTICE AND PUBLIC SAFETY CABINET: Kentucky Law Enforcement Council: Council
503 KAR 1:140 & E. Peace officer, telecommunicator, and court security officer professional standards.
TRANSPORTATION CABINET: Department of Vehicle Regulation: Division of Motor Vehicle Licensing: Division of Motor Carriers
601 KAR 1:220. Theft of motor fuel; procedures to obtain motor vehicle record.
Division of Drivers License: Driver's License
601 KAR 12:060. Hardship driver's license.
PUBLIC PROTECTION CABINET: Kentucky Horse Racing Commission: Division of Licensing: Thoroughbred Racing
810 KAR 1:025 & E. Licensing thoroughbred racing.
810 KAR 1:034 & E. Licensing of racing association.
Harness Racing
811 KAR 1:034 & E. Licensing of racing associations.
Department of Housing, Buildings and Construction: Division of Plumbing: Plumbing
815 KAR 20:050 & E. Installation permits.
CABINET FOR HEALTH AND FAMILY SERVICES: Office of Inspector General:
906 KAR 1:180 & E. Operation and services; personal services agencies.
Department for Aging and Independent Living: Division of Quality Living: Aging Services
910 KAR 1:260. Kentucky Family Caregiver Program.
Other Business: Subcommittee staff stated that the April meeting would be tentatively scheduled for 10 a.m. on April 14, 2010; however, if the legislative calendar for the 2010 Regular Session changes, the meeting date would be adjusted accordingly.
The subcommittee adjourned the meeting at 2:10 p.m. until April 14, 2010.