Call to Order and Roll Call
The July meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, July 13, 2010, 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, and Joey Pendleton; Representatives Robert R. Damron, Danny Ford, and Jimmie Lee.
Guests: Dennis Taulbee, Jevonda Keith, Council on Postsecondary Education; Nathan Goldman, Board of Nursing; Ann D'Angelo, Godwin Onodu, Transportation Cabinet; Robin Ritter, Patrick Shirley, Mindy Yates, Office of Vocational Rehabilitation; Patricia Cooksey, Marc Guilfoil, Susan Bryson Speckert, Kentucky Horse Racing Commission; Carrie Banahan, Mary Begley, Stephanie Brammer Barnes, Virginia Carrington, Elizabeth Caywood, Jennifer Devine, Lisa Osbourne, Cabinet for Health and Family Services; Caroline Ridgeway, Convenient Care Association.
The Administrative Regulation Review Subcommittee met on Tuesday, July 13, 2010, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
COUNCIL ON POSTSECONDARY EDUCATION: Nonpublic Colleges
13 KAR 1:020. Private college licensing. Dennis L. Taulbee, general counsel, and Jevonda Keith, senior associate, represented the council.
GENERAL GOVERNMENT CABINET: Board of Nursing: Board
201 KAR 20:510. Voluntary relinquishment of a license or credential. Nathan Goldman, general counsel, represented the board.
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 the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and the function served by this administrative regulation, as required by KRS 13A.220; and (3) to amend Sections 1 and 2 to comply with the drafting and format requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
TRANSPORTATION CABINET: Department of Vehicle Regulation: Division of Driver Licensing: Administration
601 KAR 2:020. Drivers' privacy protection. Ann D'Angelo, assistant general counsel, and Godwin Onodu, assistant director, represented the division.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 4 and 6 to comply with the drafting requirements of KRS Chapter 13A; and (2) to amend Section 8 to incorporate two (2) additional forms by reference. Without objection, and with agreement of the agency, the amendments were approved.
EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Department of Workforce Investment: Office of Vocational Rehabilitation: Administration
781 KAR 1:020. General provisions for operations of the Office of Vocational Rehabilitation. Robin N. Ritter, program administrator; Patrick B. Shirley, staff attorney; and Mindy Yates, staff assistant, represented the office.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to correct statutory citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and the function served by this administrative regulation, as required by KRS 13A.220; (3) to amend Section 1 to delete unnecessary definitions; and (4) to amend Sections 2, 3, 5 through 8, 11, 12, and 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.
781 KAR 1:030. Order of selection and economic need test for vocational rehabilitation services.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add additional citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and the function served by this administrative regulation, as required by KRS 13A.220; (3) to amend Section 1 to add necessary definitions; and (5) 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.
PUBLIC PROTECTION CABINET: Kentucky Horse Racing Commission: Division of Licensing: Thoroughbred Racing
810 KAR 1:025 & E. Licensing thoroughbred racing. Patricia J. Cooksey, director of public relations; Marc A. Guilfoil, deputy executive director; and Susan Bryson Speckert, general counsel, represented the commission.
In response to questions by Representative Damron, Ms. Speckert stated that it was necessary to promulgate these administrative regulations on an emergency basis because a new racetrack may need to be licensed at any time, personnel licensing took place year round, and frivolous appeals were an ongoing problem. The commission approved the fee increases at its board meeting, which was open to the public and announced to all stakeholders.
In response to questions by Representative Ford, Ms. Speckert stated that frivolous appeals were referenced throughout these administrative regulations based on the Civil Rules established by the Kentucky Supreme Court. The frivolous appeals prohibition is needed because it is currently possible that a jockey, for example, may be suspended from racing; however, that suspension could be frivolously appealed with the appeal date scheduled after an important race in which the jockey intended to race. The jockey would be able to race and then withdraw the frivolous appeal to serve the suspension at a time convenient to the jockey. Ms. Speckert stated that the commission would determine if an appeal was or was not frivolous, and further due process could then be sought through the judicial system.
In response to questions by Senator Kerr and Representative Ford, Ms. Speckert stated that in May 2008 the commission voted for the fee increases after an audit from the State Auditor, Critt Luallen, demonstrated a need for the increases. Ms. Speckert stated that the administrative regulations had been in place as emergency administrative regulations for two (2) years, had been publicly vetted with stakeholders, and had not been opposed by stakeholders. The commission representatives and subcommittee members discussed the possibility of deferring some or all of these administrative regulations until the August meeting; however, doing so allowed for a potential gap between the date the administrative regulations would become effective and the date the emergency provisions would expire. Subcommittee members discussed ramifications of deferral and a possible motion to request deferral. The agency agreed to potential deferral if the Subcommittee approved such a motion. Ms. Speckert stated that live racing would be taking place during the potential nine (9) day gap between when the emergency administrative regulations would expire and the ordinary administrative regulations would become effective, if the administrative regulations were deferred.
A motion was made and seconded to defer consideration of these administrative regulations until the August meeting. A roll call vote was taken. The motion was not approved by a vote of four (4) to two (2).
Senator Kerr stated that it was unnecessary to take punitive action toward this commission, but it was important to take prudent action to eliminate the statutory loophole that allowed a fee to be established or increased through an emergency administrative regulation that was then withdrawn and refiled in such a way that legislative oversight was significantly delayed. She had not received any complaints from stakeholders regarding the fees and did not wish to penalize the horse industry. She questioned if raising fees during this economic climate, which had hit the racing industry severely, was prudent.
In response to a question by Senator Pendleton, Subcommittee staff stated that KRS Chapter 13A did not currently prohibit establishing or increasing fees by administrative regulation and did not prohibit an agency from repeatedly withdrawing and refiling an administrative regulation that was not identical to or substantially the same as a prior emergency administrative regulation.
In response to questions by Representative Lee, Ms. Speckert stated that the commission had been collecting the fee since 2008 because the administrative regulation had been withdrawn and refiled several times. Subcommittee staff stated that some of the issues that delayed progress of the administrative regulations were legal problems. The authorizing statute had been amended by the General Assembly to authorize some of the changes made by these administrative regulations. Fees were collected before the amendments were made to the authorizing statute. Mr. Guilfoil stated that the amendment that was necessary to the authorizing statute pertained to clarifying the categories for licensure.
Representative Lee requested that the commission provide a timeline documenting each time these administrative regulations were withdrawn and refiled with the rationale for the action, including how the administrative regulations met statutory criteria for an emergency.
In response to a question by Representative Damron, Ms. Speckert stated that the commission was not purposely trying to create a situation where a fee was collected without public input or legislative oversight. It took time to work out many of the legal issues, and all of the commission meetings regarding the fees were open to the public. Mr. Guilfoil added that harness racing stakeholders had been notified of the fee increases, but he was not sure if that was also true for all groups of thoroughbred stakeholders.
In response to a question by Senator Kerr, Subcommittee staff stated that the compromises made to the administrative regulations pertained to legal issues and not to the fee increases.
Representatives Lee and Damron both stated that it was inherently wrong to raise fees without legislative oversight and representation by repeatedly filing and withdrawing an emergency administrative regulation. Subcommittee members discussed the potential need to amend KRS Chapter 13A to close this loophole.
A motion was made and seconded to draft a letter from the Subcommittee to the governor, the Legislative Research Commission, and all executive branch agencies to: (1) express the Subcommittee's displeasure with the statutory loophole that allows an agency to raise or establish fees through an emergency administrative regulation, especially if that administrative regulation is then repeatedly withdrawn and refiled so that the fee remains effective without legislative oversight; (2) express the Subcommittee's recommendation that KRS Chapter 13A be amended during the next regular session of the General Assembly to prohibit increasing or establishing fees by emergency administrative regulation and to express the Subcommittee's intent to collectively prefile a co-sponsored bill to do the same; and (3) include in the letter the concern regarding fee increases being placed on the horse racing community when the industry was struggling in a difficult economic climate. The question was called, and a roll call vote was taken. The motion was approved unanimously by all members present.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 2 and 5 and the licensing application to update the licensing categories; (2) to amend Section 4 to establish licensing requirements for equine therapists; (3) to amend Section 9 to limit out of competition testing to those authorized by administrative regulation; (4) to amend Section 14(1)(s)1. to delete the prohibition on firearm possession by a licensee on racing association grounds; (5) to amend Section 23 to update the licensing application and the veterinarian approval form; and (6) to amend the RELATES TO; STATUTORY AUTHORITY; and NECESSITY, FUNCTION AND CONFORMITY paragraphs and Sections 2 through 5, 9 through 14, 16 through 21, and 23 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 1:037 & E. Licensing of racing associations.
A motion was made and seconded to approve the following amendments: (1) to amend Section 11 and the Change of Control form to insert omitted text; and (2) to amend the TITLE; the RELATES TO; STATUTORY AUTHORITY; and NECESSITY, FUNCTION, AND CONFORMITY paragraphs; and Sections 1, 4, 8, 9, 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.
810 KAR 1:100 & E. Frivolous appeals.
A motion was made and seconded to approve the following amendments: to amend the RELATES TO; STATUTORY AUTHORITY; and NECESSITY, FUNCTION, AND CONFORMITY paragraphs 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.
Harness Racing
811 KAR 1:037 & E. Licensing of racing associations.
A motion was made and seconded to approve the following amendments: (1) to amend Section 11 and the Change of Control form to insert omitted text; and (2) to amend the TITLE; the RELATES TO; STATUTORY AUTHORITY; and NECESSITY, FUNCTION, AND CONFORMITY paragraphs; and Sections 1, 4, 8, 9, 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.
811 KAR 1:230 & E. Frivolous appeals.
A motion was made and seconded to approve the following amendments: to amend the RELATES TO; STATUTORY AUTHORITY; and NECESSITY, FUNCTION, AND CONFORMITY paragraphs 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.
Quarter Horse, Appaloosa and Arabian Racing
811 KAR 2:130 & E. Frivolous appeals.
A motion was made and seconded to approve the following amendments: to amend the RELATES TO; STATUTORY AUTHORITY; and NECESSITY, FUNCTION, AND CONFORMITY paragraphs 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.
CABINET FOR HEALTH AND FAMILY SERVICES: Office of Health Policy: Certificate of Need
900 KAR 6:060. Timetable for submission of certificate of need applications. Carrie Banahan, executive director, represented the office.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY 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 and 2 to: (a) comply with the drafting and format requirements of KRS Chapter 13A; and (b) change the batching cycle for cardiac catheterizations from the public notice given in May and November to the public notice given in January and July. Without objection, and with agreement of the agency, the amendments were approved.
Office of Inspector General: Division of Healthcare: Health Services and Facilities
902 KAR 20:400. Limited services clinics. Mary Begley, inspector general, represented the division. Caroline Ridgway, policy director, Commonwealth Care Association appeared in support of this administrative regulation.
Ms. Ridgway thanked the office for cooperation in amending this administrative regulation and requested reconsidering the eighteen (18) month time frame for revisiting which services are appropriate for a limited services clinic. She preferred a shorter time frame.
A motion was made and seconded to approve the following amendments: (1) to amend Section 3 to: (a) allow off-site community vaccination and health screening drives; (b) allow vaccinations for children age eleven (11) and older, as well as the influenza vaccine for patients age twenty-four (24) months and older; (c) require the clinic to inform the patient that the patient does not have to buy recommended or prescribed items from the host retail location; (d) include patient education services for diabetes, hyperlipidemia, and hypertension; (e) specify that a clinic may order specific lab testing and that only Clinical Laboratory Improvement Amendments waived testing may be done on-site; (f) allow services pursuant to a patient’s plan of care or order from another practitioner; (g) allow nonemergency episodic treatment for an acute exacerbation of a chronic condition; (h) allow initial diagnosis of chronic illness, along with doctor referral, and thirty (30) day interim treatment; (i) allow a thirty (30) day prescription for maintenance medication, along with documented efforts to contact the primary prescriber; and (j) if the cabinet receives requests for modification of the list of services, convene an advisory committee to review the list and make recommendations no sooner than eighteen (18) months from the effective date of this administrative regulation; (2) to amend Section 4 to specify information in the patient rights policies; (3) to amend Sections 4 and 5 to specify medical record requirements; and (4) to amend Section 7 to require that trash containers be cleaned regularly, as needed, rather than daily. Without objection, and with agreement of the agency, the amendments were approved.
Department for Income Support: Child Support Enforcement: Family Support
921 KAR 1:410. Child support collection and enforcement. Jennifer Devine, internal policy analyst, and Lisa Osborne, staff attorney, represented the department.
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 specify citations; and (2) to amend Sections 2 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.
Department for Community Based Services: Division of Family Support: K-TAP, Kentucky Works, Welfare to Work, State Supplementation
921 KAR 2:50E. Work Now Kentucky Program. Virginia Carrington, branch manager, and Elizabeth Caywood, internal policy analyst, represented the division.
The following administrative regulations were deferred to the August 10, 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: Office of the Secretary: Purchasing
200 KAR 5:315. Debarment.
GENERAL GOVERNMENT: Board of Veterinary Examiners: Board
201 KAR 16:030 & E. License, renewal notice, exemption.
JUSTICE AND PUBLIC SAFETY CABINET: Department of Criminal Justice Training: General Training Provision
503 KAR 3:010. Basic Law enforcement training course recruit conduct requirements; procedures and penalties.
503 KAR 3:040. Telecommunications academy trainee requirements; misconduct; penalties; discipline procedures.
503 KAR 3:110. Certified court security officers academy trainee requirements; misconduct; penalties; discipline procedures.
EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Kentucky Board of Education: Department of Education: School Administration and Finance
702 KAR 3:246. School council allocation formula: KETS District Administrative System Chart of Accounts.
CABINET FOR HEALTH AND FAMILY SERVICES: Office of Health Policy: Certificate of Need
900 KAR 6:020. Certificate of need application fees schedule.
The subcommittee adjourned at p.m. until August 10, 2010.
LRC Staff: Dave Nicholas, Donna Little, Sarah Amburgey, Chad Collins, Emily Harkenrider, Karen Howard, and Laura Napier.