Call to Order and Roll Call
The October meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, October 11, 2011, at 1:00 PM, in Room 149 of the Capitol Annex. Senator Joe Bowen, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Joe Bowen, Co-Chair; Representative Johnny Bell, Co-Chair; Senators David Givens, and Joey Pendleton; Representatives Danny Ford, and Jimmie Lee.
Guests: Mike Carr, Dr. Kim Walters-Parker, Alicia Sneed, Educational Professional Standards Board; Mark Sipek, Personnel Board; Dinah Bevington, Personnel Cabinet; Jonathan Buckley, David Cox, State Board of Licensure for Professional Engineers and Land Surveyors; Mark Brengelman, Becky Klusch, Board of Physical Therapy; Mark Brengelman, Scott Brinkman, Kentucky Applied Behavior Analyst Licensing Board; Tamara McDaniel, Peggy Lacy Moore, Robert W. Powell, Janet Vogt, Board of Respiratory Care; John Brunjes, Kristina Brunjes, Jon Gassett, Karen Waldrop, Margaret Everson, Department of Fish and Wildlife Resources; Anna M. Lucio, Mac Stone, Clint Quarles, Department of Agriculture; Amy Barker, Department of Corrections; Graham Gray, William Herald, Morgain Sprague, Heather Wagers, Kentucky State Police; Sandy Chapman, DJ Wasson, Maggie Woods, Department of Insurance; Dawn Bellis, Jerry Lunsford, George Mann, Department of Housing, Buildings and Construction; Elizabeth Caywood, Lee Etta Cummings, IJ Eneje, Vonia Grabeel, Matt McKinley, Stuart Owen, Ken Spach, Marissa Vega Velez, Chandra Venettozzi, Cabinet for Health and Family Services; Rick Allen, Bluegrass Sportsman's League, Anderson County Sportsman's Club, Ky Grouse Hunter's Association; Carol Beese, Kentucky Ornithological Society; Carl Boes, KARP; Pete Blandford, Quality Deer Management Association, James Daniel, Self-employed; Robert Fraley, KOSA; Chet Hayes, United Trappers of Kentucky; Mark Nethery, League of Ky Sportsman; Joe Rossler, 5th District Federation of Lock 5; Dan Saunders, Campbell County Game and Fish; Bobby Spencer, Ky NWTF; Barry Welty, Kentucky Ducks Unlimited Conservation; and Jon Woodall, Kentucky Fish and Wildlife Foundation.
LRC Staff: Dave Nicholas, Emily Caudill, Donna Little, Sarah Amburgey, Emily Harkenrider, Karen Howard, Betsy Cupp, and Laura Napier.
The Administrative Regulation Review Subcommittee met on Tuesday, October 11, 2011, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
EDUCATION PROFESSIONAL STANDARDS BOARD: Teaching Certificates
16 KAR 2:040. Interdisciplinary early childhood education, birth to primary. Mike Carr, director of certification; Dr. Kim Walters - Parker, director of educator preparation; and Alicia Sneed, director of legal services, represented the board.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 2 and 6 through 9 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Educator Preparation
16 KAR 5:040. Admission, placement, and supervision in student teaching.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 2, 3, 6, and 7 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (2) to create a new Section 8 to incorporate by reference the Instructions for Electronic Payment Vouchers. Without objection, and with agreement of the agency, the amendments were approved.
Alternative Routes to Certification
16 KAR 9:090. University-based alternative certification program for teachers of world languages.
A motion was made and seconded to approve the following amendments: to amend the TITLE, the RELATES TO, STATUTORY AUTHORITY, and NECESSITY, FUNCTION, AND CONFORMITY paragraphs, and Sections 1 through 4 and 6 through 9 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
PERSONNEL BOARD: Board
101 KAR 1:375. Employee grievances and complaints. Mark Sipek, executive director, represented the board.
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 function served by this administrative regulation, as required by KRS 13A.220; (3) to amend Sections 1 through 4 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (4) to create a new Section 5 to incorporate by reference the updated Grievance Form. Without objection, and with agreement of the agency, the amendments were approved.
PERSONNEL CABINET: Personnel Cabinet, Classified
101 KAR 2:046. Applications, qualifications and examinations. Dinah Bevington, general counsel, represented the cabinet.
A motion was made and seconded to approve the following amendments: to amend Sections 4, 9, and 12 and the application form incorporated by reference to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
101 KAR 2:056. Registers.
A motion was made and seconded to approve the following amendments: to amend the RELATES TO paragraph, Sections 2 and 8, and the application form incorporated by reference to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
101 KAR 2:105. Sick leave sharing procedures.
A motion was made and seconded to approve the following amendments: to amend Sections 1 through 4 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
101 KAR 2:106. Annual leave sharing procedures.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correct a statutory citation; and (2) to amend Sections 2, 3, and 4, and the application form incorporated by reference, to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
GENERAL GOVERNMENT CABINET: State Board of Licensure for Professional Engineers and Land Surveyors: Board
201 KAR 18:192. Continuing professional development for professional land surveyors. Jonathan Buckley, general counsel, and David Cox, executive director, represented the board.
A motion was made and seconded to approve the following amendments: to amend Sections 1 and 5 to correct minor drafting errors. Without objection, and with agreement of the agency, the amendments were approved.
Board of Physical Therapy: Board
201 KAR 22:020. Eligibility and credentialing procedure. Becky Klusch, executive director, and Mark Brengelman, assistant attorney general, represented the board.
A motion was made and seconded to approve the following amendment: to amend Section 4 to correct minor drafting errors. Without objection, and with agreement of the agency, the amendment was approved.
Board of Respiratory Care: Board
201 KAR 29:050. Continuing education requirements. Tamara McDaniel, RRT, chair; Robert W. Powell, M.D., board member; and Janet Vogt, RRT, board member, represented the board.
In response to questions by Representative Ford, Ms. McDaniel stated that there was a national association of respiratory care and that the board presented this administrative regulation to the state association at the state meeting. There were no negative comments from the association regarding the proposal. The previous version of this administrative regulation established that a maximum of fifteen (15) percent of licensees would be audited. In order to raise standards and approximate the requirements of surrounding states, this administrative regulation amended the fifteen (15) percent to be a minimum, rather than a maximum.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 5, 6, and 8 through 11 to clarify requirements; (2) to amend Section 6 to specify that academic courses shall be post-approved after completion of the course to qualify as continuing education; and (3) to amend the STATUTORY AUTHORITY paragraph and Sections 1, 3, 4, 5, 7, 8, and 12 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Kentucky Applied Behavior Analysis Licensing Board: Board
201 KAR 43:010 & E. Licensed behavior analyst or licensed assistant behavior analyst: application procedures. Scott Brinkman, board member, and Mark Brengelman, assistant attorney general, represented the board.
A motion was made and seconded to approve the following amendments: (1) to amend the TITLE; the RELATES TO, STATUTORY AUTHORITY, and NECESSITY, FUNCTION, AND CONFORMITY paragraphs; and Sections 1 through 4 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (2) to amend the form incorporated by reference for conformity. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 43:020 & E. Temporary licensed behavior analyst or temporary licensed assistant behavior analyst: application procedures.
A motion was made and seconded to approve the following amendments: (1) to amend the TITLE; the RELATES TO, STATUTORY AUTHORITY, and NECESSITY, FUNCTION, AND CONFORMITY paragraphs; and Sections 1 through 4 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (2) to amend the form incorporated by reference for conformity. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 43:030 & E. Fees.
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; and Sections 1, 2, and 3 to comply with the drafting and formatting requirements of KRS Chapter 13A; (2) to amend Section 2 to specify that the licensure renewal fee for each subsequent renewal period for licensed assistant behavior analysts shall be $200; and (3) to amend Section 3 to specify that the nonrefundable application review fee and the temporary licensure fee for a two (2) year temporary licensure period for assistant behavior analysts shall each be $100. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 43:040 & E. Code of ethical standards and standards of practice.
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 Sections 1 through 4, 7, 10, and 11 to comply with the drafting and formatting requirements of KRS Chapter 13A. 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 2:228. Sandhill crane hunting requirements. Margaret Everson, assistant attorney general; Jon Gassett, commissioner; and Karen Waldrop, director, Wildlife Division, represented the department. Chet Hayes, executive director, United Trappers of Kentucky; Mark Nethery, president, League of Kentucky Sportsmen; and Barry Welty, chair, Kentucky Ducks Unlimited Conservation, appeared in support of this administrative regulation. Carol Besse, president, Kentucky Ornithological Society, and James Daniel, hunter, appeared in opposition to this administrative regulation.
Mr. Nethery stated that he was the president of the League of Kentucky Sportsmen and was appearing on behalf of approximately twenty (20) organizations. He stated that statistics showed there were about 60,000 sandhill cranes, which was plenty for continued population protection. The sandhill crane had historically been classified as a game bird in Kentucky. Currently, the sandhill crane was legally huntable in thirteen (13) other states. U. S. Fish and Wildlife developed a management plan that allowed for 800 birds to be taken yearly in Kentucky; however, this administrative regulation was conservative and allowed for 400 birds to be taken yearly. The impact on other species was addressed in this administrative regulation by requirements for a species identification test and by establishing the hunting season after the whooping crane migration. Sportsmen paid for conservation in Kentucky, and no species failed because of harvesting after a hunting management plan was developed.
Mr. Hayes, a Northern Kentucky outdoorsman and hunter, stated that the purpose of the Kentucky Department of Fish and Wildlife Resources was to balance and regulate the uses of Kentucky's natural resources. This had to be accomplished with limited funding. He believed that a seasonal hunt of the sandhill crane would yield the same success as the elk program, resulting in restoration of the species.
Mr. Welty stated that Kentucky Ducks Unlimited Conservation fully supported this administrative regulation.
In response to a question by Co-Chair Bowen, Mr. Hayes stated that a prospective hunter of the sandhill crane was first required to pass a species identification test to avoid impact on other species, such as the great blue heron or the whooping crane. Mr. Nethery added that the sandhill hunting season was after the whooping crane had already migrated out of Kentucky.
Ms. Besse stated that vast numbers of people were opposed to this administrative regulation; however, they had not come to this Subcommittee meeting because they had been disheartened and fatigued by the process and how the Department for Fish and Wildlife Resources had framed their concerns.
Co-Chair Bowen stated that the promulgation process for administrative regulations was established by KRS Chapter 13A. He asked that comments be concise and limited to the subject matter, rather than the promulgation process required by law.
Ms. Besse stated that the Department for Fish and Wildlife Resources first proposed this policy in June 2010; however, the policy was not available to the public until January 2011. The department framed the issue as a pro-hunting versus anti-hunting and anti-firearm discussion. Opposition to this administrative regulation was not anti-hunting or anti-firearm. The department distorted and misrepresented opposition to hunting the sandhill crane. True public discussion never took place. This administrative regulation was flawed public policy. This Subcommittee meeting was the first neutral arbitration of this administrative regulation because other meetings were held by the department and were biased.
Co-Chair Bowen stated that Subcommittee members followed this issue throughout the promulgation process and had also received numerous comments from constituents. Ms. Besse clarified that this Subcommittee had properly followed the administrative regulation process as established by law, but that other meetings conducted by the Department for Fish and Wildlife Resources were not neutral. Ms. Besse stated that she was not anti-hunting.
Mr. Daniel stated that he was not anti-hunting, but he was concerned about the potential for misidentification of species. He believed that the Department for Fish and Wildlife Resources mischaracterized opposition to the hunting of the sandhill crane. He stated that science did not support hunting the sandhill crane, and the department's funding may be negatively affected by this decision. Some groups that currently funded the department may choose no longer to do so because of their opposition to the hunting of the sandhill crane. Thirty-five (35) percent of the department's funding comes from non-hunting sources. Hunting was expected to decline in Kentucky. Mr. Daniel asked rhetorically how the department would fund conservation if hunting declined in Kentucky. Wildlife viewing, by the department's own data, was the strongest growing portion of wildlife-related activity, and the sandhill crane was the most watchable bird in Kentucky.
Senator Givens stated that this Subcommittee was neutral and provided a voice to all interested parties. In response to questions by Senator Givens, Ms. Besse clarified that the department's position, not the promulgation process, was where her secondary opposition lie. This Subcommittee did not violate the statutory process established in KRS Chapter 13A. Ms. Besse believed that the department never intended to entertain public comments in a serious manner. Mr. Daniel stated that the department mischaracterized the opposition's concerns as being anti-hunting and anti-firearm, rather than presenting the true concern regarding the protection of the sandhill crane. He stated that the department issued fliers describing opposition to this administrative regulation as anti-hunting and anti-firearm.
Mr. Gassett stated that the Department for Fish and Wildlife Resources followed the promulgation process established in KRS Chapter 13A and held a public hearing prior to this administrative regulation being filed with LRC. The department also met independently with the Sandhill Crane Coalition and the Kentucky Ornithological Society. He stated that the department promoted hunting, which was the agency's main task. He disputed Mr. Daniel's statement that thirty-five (35) percent of the department's funding came from non-hunting sources by explaining that certain miscellaneous fund sources related indirectly to hunting, such as licensing of equipment. Less than $100,000 came from non-hunting sources. The department received hundreds of letters from animal rights groups, which were usually considered anti-hunting; therefore, the department did characterize this administrative regulation as a pro-hunting issue. This administrative regulation established a very conservative hunting season with safety triggers to protect the species from misidentification. Additionally, annual review of the program was mandatory, and scientists determined that the sandhill crane population would continue to grow if Kentucky allowed this administrative regulation to become effective.
In response to questions by Co-Chair Bell, Mr. Gassett stated that there were refuge sites established in this administrative regulation to protect crane-roosting areas. These protected areas were streams that flowed into Barren Lake.
Co-Chair Bell stated that the Department for Fish and Wildlife Resources had done a great job with new hunting programs and with restoring other species, such as the wild turkey. In response to a question by Co-Chair Bell, Mr. Gassett stated that thirty-one (31) states constituted the flyway zone for the sandhill crane. Many citizens of states in the flyway zones other than Kentucky submitted comments regarding this administrative regulation. Some comments supported this administrative regulation, and some were opposed to it. Most of the comments came from Tennessee.
GENERAL GOVERNMENT CABINET: Department of Agriculture: Division of Agriculture Marketing: Ginseng
302 KAR 45:010 & E. Ginseng, general provisions. Clint Quarles, staff attorney; Anna M. Lucio, marketing specialist; and Mac Stone, executive director, represented the division.
In response to questions by Senator Givens, Mr. Stone stated that initial drafting of this administrative regulation began in 2004 and 2005 after a sting operation illuminated problems with the previous version of this administrative regulation. The requirements were not practically enforceable and were not specific enough. The ginseng-harvesting industry brought millions of dollars to rural parts of Kentucky and worked with the department in developing this administrative regulation.
In response to questions by Representative Ford, Ms. Lucio stated that this administrative regulation required licensing for buyers only. Hunters had season changes to protect long-term sustainability of ginseng, and the plants had to be a minimum age before harvesting. The division was developing educational materials to assist in enforcement of this administrative regulation. It took seven (7) to ten (10) years from the time of planting to harvesting.
In response to a question by Representative Lee, Ms. Lucio stated that most ginseng harvested in Kentucky was exported to Hong Kong. The current market value for ginseng was $400 per dry pound.
A motion was made and seconded to approve the following amendments: (1) to amend the TITLE for clarification; (2) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to include additional relevant citations; (3) to amend Section 7 to establish the filing deadline for the required purchase forms; (4) to amend Section 9 to specify appeal procedures if cited for a ginseng regulatory violation; (5) 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 (6) to amend Sections 1 through 11 to clarify requirements and to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
JUSTICE AND PUBLIC SAFETY CABINET: Department of Corrections: Sex Offender Risk Assessment Advisory Board: Office of the Secretary
501 KAR 6:220. Treatment for sex offenders. Amy Barker, assistant general counsel, represented the office.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 3 and 4 to clarify that the providers shall provide at a minimum the number of treatment sessions listed; and (2) to amend Sections 2 through 5 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Department of State Police: Concealed Deadly Weapons
502 KAR 11:010. Application for license to carry concealed deadly weapon. Graham Gray, attorney; Heather Wagers, staff attorney; and Morgain Sprague, legal counsel, represented the department.
In response to a question by Representative Ford, Mr. Gray stated that there was an identification card for retired officers. The card was regulated by the federal program. Amendments were made to this administrative regulation in response to program changes at the federal level, including that "duration of employment" included events such as resignation, as well as retirement.
A motion was made and seconded to approve the following amendments: (1) to amend Section 6 to delete the requirement that the application shall be completed and signed in the presence of the sheriff; and (2) to amend Section 12 to: (a) comply with the drafting requirements of KRS Chapter 13A; and (b) revise material incorporated by reference. Without objection, and with agreement of the agency, the amendments were approved.
502 KAR 11:050. Updating, replacement, and renewal of license to carry concealed deadly weapon.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 2 and 3 to delete the requirements that the change of personal information form and the request for duplicate license form shall be completed and signed in the presence of the sheriff; (2) to amend Section 7 to delete the requirement that a late fee waiver shall be requested by a licensee whose license expired during an overseas military deployment; and (3) to amend Sections 1, 2, and 5 through 8 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Technical Services Division: Law Enforcement Officers Safety Act of 2004
502 KAR 13:010. Application for certification under the Law Enforcement Officers Safety Act of 2004 ("LEOSA"), 18 U.S.C. 926C, for honorably retired elected or appointed peace officers. Graham Gray, attorney, and Heather Wagers, staff attorney, represented the division.
A motion was made and seconded to approve the following amendments: (1) to amend Section 5 to delete the requirement that the application form shall be completed in the presence of the sheriff; and (2) to amend the RELATES TO paragraph and Sections 1, 5, 6, and 7 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
502 KAR 13:040. Issuance, expiration, and renewal of certification to carry a concealed deadly weapon pursuant to the Law Enforcement Officers Safety Act of 2004 (LEOSA), 18 U.S.C. 926C, for honorably retired elected or appointed peace officers.
A motion was made and seconded to approve the following amendments: to amend Sections 4 and 6 to clarify requirements. Without objection, and with agreement of the agency, the amendments were approved.
502 KAR 13:070. Applicant photograph requirements for certification to carry a concealed deadly weapon pursuant to the Law Enforcement Officers Safety Act of 2004 (LEOSA), 18 U.S.C. 926C, for honorably retired elected or appointed peace officers.
A motion was made and seconded to approve the following amendments: to amend Section 2 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
PUBLIC PROTECTION CABINET: Department of Insurance: Agent Licensing Division: Agents, Consultants, Solicitors, and Adjusters
806 KAR 9:020. False or deceptive names, titles, prohibited. Sandy Chapman, assistant director; D. J. Wasson, staff assistant; and Maggie Woods, director of agent licensing, represented the division.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add statutory citations; and (2) to amend Sections 1, 2, 3, 5, and 6 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Department of Housing, Buildings and Construction: Division of Building Codes Enforcement: Elevator Safety
815 KAR 4:010 & E. Annual inspection of elevators. Dawn M. Bellis, general counsel, and George Mann, deputy commissioner, represented the division.
In response to questions by Representative Ford, Ms. Bellis stated that the inspection fee was for initial installation only, which was usually requested by the homeowner or installing contractor. Although it would increase fees, a homeowner may want the inspection for safety.
A motion was made and seconded to approve the following amendments: to amend Sections 1 and 2 to: (1) clarify requirements; and (2) comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
815 KAR 4:025 & E. Permit fees for new and altered elevators.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct inconsistencies between the currently effective administrative regulation and the filed proposed administrative regulation; and (2) to amend Sections 1, 2, 3, 5, 6, 8, and 9 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
815 KAR 4:030 & E. Elevator contractor licensing requirements.
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 8 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (4) to amend Section 8 to revise the form incorporated by reference. Without objection, and with agreement of the agency, the amendments were approved.
815 KAR 4:040 & E. Elevator mechanic licensing requirements.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to make a technical correction; (2) to amend Sections 1, 2, 4, and 7 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (3) to amend Section 7 to revise the form incorporated by reference. Without objection, and with agreement of the agency, the amendments were approved.
815 KAR 4:050 & E. Continuing education requirements for elevator contractors and elevator mechanics.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to correct statutory citations; and (2) to amend Sections 1, 2, 4, and 6 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
815 KAR 4:060 & E. Requirements for approval of continuing education courses and providers.
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; (3) to amend Sections 1 through 3 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (4) to amend Section 6 to revise the forms incorporated by reference. Without objection, and with agreement of the agency, the amendments were approved.
815 KAR 4:070 & E. Fees and refunds.
Kentucky Building Code
815 KAR 7:120. Kentucky Building Code.
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 this administrative regulation, as required by KRS 13A.220; and (2) to amend Sections 1 and 3 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Division of Heating, Ventilation and Air Conditioning: Heating, Ventilation, and Air Conditioning Licensing Requirements
815 KAR 8:007. Kentucky Board of Heating, Ventilation, and Air Conditioning (HVAC) contractors budget review and responsibility.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to add a statutory citation; and (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. 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 6:030. Certificate of need expenditure minimums. Chandra Venettozzi, health data administrator, represented the office.
A motion was made and seconded to approve the following amendments: to amend the RELATES TO paragraph and Section 1 to correct typographical errors. Without objection, and with agreement of the agency, the amendments were approved.
900 KAR 6:080. Certificate of Need emergency circumstances.
A motion was made and seconded to approve the following amendments: to amend Sections 1 and 2 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Department for Public Health: Division of Public Health Protection and Safety: Mobile Homes and Recreational Vehicles Parks; Facilities Standards
902 KAR 15:020 & E. Recreational vehicles. Vonia Grabeel, supervisor, Facilities Section, and Ken Spach, branch manager, represented the division.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to add 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 4 to update lighting requirements commensurate with recent technological advances; (4) to amend Sections 1 through 18 and 20 through 23 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (5) to amend Sections 2, 3, 5, 7 through 12, and 20 to correct inconsistencies between the currently effective administrative regulation and the filed proposed administrative regulation. Without objection, and with agreement of the agency, the amendments were approved.
Radiology
902 KAR 100:019. Standards for protection against radiation. Matt McKinley, director, Kentucky Radiation Ion Program, and Marissa Vega Velez, radiation health specialist, represented the division.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to delete a superfluous 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 2, 3, 4, 6, 9 through 13, 16, 18 through 21, 24 through 36, 38 through 41, and 43 through 45 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
902 KAR 100:022. Licensing requirements for land disposal of radioactive waste.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add citations; and (2) to amend Sections 1, 2, 3, 6, 7, 14, 27, 32, and 33 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
902 KAR 100:040. General provisions for specific licenses.
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 function served by this administrative regulation, as required by KRS 13A.220; (3) to amend Sections 1 through 5, 12, 13, and 15 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (4) to amend Section 16 to revise material incorporated by reference. Without objection, and with agreement of the agency, the amendments were approved.
902 KAR 100:042. Decommissioning and financial surety.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to correct citations; (2) to amend Sections 8, 11, 14, and 16 to comply with the drafting and formatting requirements of KRS Chapter 13A; (3) to amend Section 11 to correct a deadline; and (4) to amend Section 14 to correct a unit of measurement. Without objection, and with agreement of the agency, the amendments were approved.
902 KAR 100:100. Industrial radiography.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to delete a 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, 2, 12, 13, 14, 16, and 21 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Department for Medicaid Services: Division of Community Alternatives: Medicaid Services
907 KAR 1:595 & E. Model Waiver II service coverage and reimbursement. Stuart Owen, regulation coordinator, represented the division.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correct statutory citations; and (2) to amend Sections 1 through 11 to comply with the drafting and formatting 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 2:050. Time and manner of payments. Elizabeth Caywood, internal policy analyst, represented the division.
Division of Protection and Permanency: Child Welfare
922 KAR 1:490. Background checks for foster and adoptive parents, caretaker relatives, kinship caregivers, and reporting requirements.
A motion was made and seconded to approve the following amendments: to amend Sections 2 and 7 and the material incorporated by reference to comply with the drafting 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 November 7, 2011, meeting of the Subcommittee:
PERSONNEL CABINET: Personnel Cabinet, Classified
101 KAR 2:180. Employee performance evaluation system.
FINANCE AND ADMINISTRATION CABINET: Department of Revenue: Ad Valorem Tax; State Assessment
103 KAR 8:010. Watercraft allocation.
GENERAL GOVERNMENT CABINET: Real Estate Appraisers Board: Board
201 KAR 30:330 & E. Application for registration.
ENERGY AND ENVIRONMENT CABINET: Office of the Secretary: Kentucky State Nature Preserves Commission: Commission
400 KAR 2:090. Management, use, and protection of nature preserves.
TRANSPORTATION CABINET: Office of Transportation Delivery: Mass Transportation
603 KAR 7:080. Human service transportation delivery.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Developmental Health, Developmental and Intellectual: Disabilities: Division of Behavioral Health: Substance Abuse
908 KAR 1:310. Certification standards and administrative procedures for driving under the influence programs. Lee Etta Cummings, DUI program manager, and Ijeoma Eneje, regulation coordinator, represented the division. Carl Boes, Kentucky Association of Regional Providers, appeared in opposition to this administrative regulation.
In response to questions by Representative Lee, Ms. Cummings stated that the changes to this administrative regulation were requested by the state auditor in order to make administrators more accountable. Important changes included a one-time six (6) hour mandatory training for program administrators and a system to provide feedback to assess the training program. Telecommunication was prohibited as a method to educate DUI clients because there was not conclusive evidence that telecommunication training was effective for behavioral health. The training was offered regionally by request of the program administrators, and the training personnel from the division traveled where needed to provide reasonably convenient training to program administrators. There were currently 118 DUI programs available at over 280 locations in Kentucky.
In response to a question by Senator Pendleton, Ms. Cummings stated that someone with a DUI conviction in Tennessee or another state, upon returning to Kentucky, would be under the jurisdiction of the Transportation Cabinet for determination if all penalties had been resolved. The determination was typically based on if the other state's requirements were commensurate with Kentucky standards. She stated that one of the previously approved curricula was deleted because it was not an evidence-based practice curriculum. The division presented information about the regulatory changes to advisory councils and at the statewide annual meeting. Strong support was received from most of the provider base.
In response to questions by Senator Givens, Ms. Cummings stated that without these amendments, this administrative regulation did not place a limit on the number of educators a supervisor was allowed to supervise. The state auditor noted this as a problem during the initial audit. Facilities were required to have at least one (1) program administrator and to ensure training and credentials for all providers. Facilities were also required to have at least one (1) clinical services supervisor. The change to require a supervisor to supervise a maximum of six (6) educators was not expected to create new cost. The agency received five (5) public comments during the public comment period from one individual. One (1) comment addressed telecommunications. The agency required DUI intervention for offenders in person because scientific research was inconclusive as to efficacy. Interpersonal skills were omitted in a telecommunication session, but they were crucial to the success of the intervention. A second comment addressed limiting the number of educators a supervisor could supervise. This change was requested by providers and was based on legal precedents and on empirical workload manageability. The third comment addressed the six (6) hour training requirement. The fourth comment addressed the policy for a DUI offender who is impaired at the intervention session. The changes establish a procedure for dealing with such a situation. The last comment addressed the patient sign-in sheet. The sign-in sheet allowed the agency to enforce patient limits. Ms. Cummings stated that, without the proposed amendments, this administrative regulation allowed DUI intervention by telecommunication, rather than in person. There were two (2) facilities that the agency knew of who used telecommunications for this purpose. The agency was concerned that allowing DUI intervention via telecommunication may undermine the effectiveness of treatment. For example, it may be impossible in a telecommunication intervention session to determine if the offender was currently impaired.
In response to a question by Senator Pendleton, Ms. Cummings stated that it took so long to propose amendments to this administrative regulation after the state audit because it took two (2) years to gather feedback and data. Changes included changing the curriculum requirements to scientifically based standards, which took time to develop. Additionally, an advisory committee was formed. Most feedback had been positive.
In response to questions by Co-Chair Bell, Ms. Cummings stated that "inappropriate behavior" had been amended to mean behavior that violated the code of conduct. Someone from each program had to be certified through a one-time six (6) hour training that would be provided regionally across Kentucky. The training was free, and the agency reimbursed attendees for travel costs. The agency shifted responsibility for out-of-state DUI issues to the Transportation Cabinet. The purpose of DUI offender assessment was to impact intervention providers to provide accountability to ensure effective intervention. Each year the agency revoked certification of approximately three (3) providers. Some of the assessment changes were requested by providers.
Mr. Boes stated that DUI intervention should be allowed to be performed via telecommunication. Just because telecommunication had not been studied to determine efficacy did not mean that it was ineffective. Medicaid reimbursed for telecommunications psychiatry, known as teletherapy. This therapy was comparable to DUI intervention. Universities regularly granted diplomas based solely on telecommunication education.
In response to a question by Senator Pendleton, Mr. Boes stated that some providers had gotten a state grant for telecommunications equipment; however, it was not specific to DUI intervention.
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 function served by this administrative regulation, as required by KRS 13A.220; (3) to amend Sections 1 through 11 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (4) to amend the items incorporated by reference to conform to this administrative regulation’s provisions. Without objection, and with agreement of the agency, the amendments were approved.
A motion was made and seconded to defer consideration of this administrative regulation, as amended, to the November meeting of the Subcommittee in order for the agency to consider amending this administrative regulation further to grandfather facilities that already used telecommunications for DUI intervention. These facilities would serve as a pilot study to get adequate data to determine if this method was effective. Ms. Cummings agreed to the deferral. Without objection, and with agreement of the agency, this administrative regulation, as amended, was deferred to the November meeting of the Subcommittee.
Department for Community Based Services: Division of Protection and Permanency: Child Welfare
922 KAR 1:420. Child fatality or near fatality investigations.
The Subcommittee adjourned at 3:30 p.m. until November 7, 2011.