Call to Order and Roll Call
The February meeting of the Administrative Regulation Review Subcommittee was held on Monday, February 13, 2012, 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; Senators David Givens, and Joey Pendleton; Representatives Robert R. Damron, Danny Ford, and Jimmie Lee.
Guests: Robert Brown, Gary Stephens, Dr. Kim Walters-Parker, Education Professional Standards Board; Bob Brooks, DeVon Hankins, Mark Johnson, Finance and Administration Cabinet; Nathan Goldman, Board of Nursing; Harold Brantley, Becky Klusch, Board of Physical Therapy; Larry Disney, Jim Grawe, Real Estate Appraiser's Board; Angela Evans, Sandra L. Miller, Board of Licensure for Marriage and Family Therapists; Jim Grawe, Martin Wesley, Board of Licensed Professional Counselors; Mike Fields, David Hise, Mark Mangeot, Department of Fish and Wildlife Resources; Clint Quarles, Dr. Robert Stout, Department of Agriculture; Carrie S. Ditterline, Steve Lynn, Joan Meadows, Department of Criminal Justice Training; Godwin Onodu, Todd Shipp, Transportation Cabinet; Richard Nesbitt, Patrick Shirley, Office for the Blind; Christopher Smith, Education and Workforce Development Cabinet; Marc A. Guilfoil, Horse Racing Commission; Glenn Bryan, Allison Lile, Beth Jurek, Kevin Mudd, Ray Peters, Chandra Venettozzi, Cabinet for Health and Family Services; and Marvin Dever, Appraiser.
LRC Staff: Dave Nicholas, Donna Little, Sarah Amburgey, Emily Harkenrider, Karen Howard, Betsy Cupp, and Laura Napier.
The Administrative Regulation Review Subcommittee met on Monday February 13, 2012, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
EDUCATION PROFESSIONAL STANDARDS BOARD: Educator Preparation
16 KAR 5:020. Standards for admission to educator preparation. Robert Brown, division director; Gary Stephens, staff attorney; and Dr. Kim Walters-Parker, educator preparation director, represented the board.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to insert 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 conform with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
FINANCE AND ADMINISTRATION CABINET: Department of Revenue: Office of Income Taxation: Forms
103 KAR 3:040 & E. Income Tax Forms Manual. Bob Brooks, executive director, corporate and independent income taxation, and Mark Johnson, tax policy and research consultant, represented the office.
A motion was made and seconded to approve the following amendments: (1) to amend Section 3 to make conforming amendments to correct inconsistencies between the currently effective administrative regulation and the filed proposed administrative regulation; and (2) to amend Sections 1, 2, and 3 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: Board of Nursing: Board
201 KAR 20:056. Advanced practice registered nurse licensure, program requirements, recognition of a national certifying organization. Nathan Goldman, general counsel, represented the board.
A motion was made and seconded to approve the following amendments: (1) to amend Section 5 to correct form titles; (2) to amend the RELATES TO paragraph to correct a statutory citation; (3) 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 (4) to amend Sections 2, 3, and 5 to conform with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 20:057. Scope and standards of practice of advanced practice registered nurses.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2 to correct form titles; (2) to amend Sections 1 and 2 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (3) to amend Section 9 to make conforming amendments 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.
Board of Physical Therapy: Board
201 KAR 22:020. Eligibility and credentialing procedure. Becky Klusch, executive director, represented the board.
In response to a question by Co-Chair Bowen, Ms. Klusch stated that the board previously deleted the temporary licensure program because it was not applicable as testing was available each day. Licensure examinations were now fixed to four (4) specific dates each year; therefore, temporary licensure was again necessary.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 2, 4, 5, and 7 to conform with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 22:070. Requirements for foreign-educated physical therapists.
In response to a question by Senator Pendleton, Ms. Klusch stated that requirements for foreign-educated physical therapists were not substantively different from domestic-educated physical therapists. Foreign-educated physical therapists were not eligible for temporary licensure until successful completion of the required examination.
A motion was made and seconded to approve the following amendments: to amend Section 1 to: (1) conform with the drafting and formatting requirements of KRS Chapter 13A; and (2) make conforming amendments 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.
Real Estate Appraisers Board: Board
201 KAR 30:375. Appraisal procedures for appraisal management companies. Sam Blackburn, vice-chair; Harold Brantley, chair; and Larry Disney, executive director, represented the board. Marvin Dever, real estate appraiser and past board president, appeared in support of this administrative regulation.
In response to questions by Representative Damron, Mr. Disney stated that the purpose of this administrative regulation was to help real estate appraisers recoup payments from out-of-state payors. There would not be immediate punitive action for failure to meet the payment deadline; however, a letter would be sent prior to the commencement of enforcement and, if necessary, the KRS Chapter 13B hearing process would be used.
Mr. Dever stated that out-of-state payors owed Kentucky real estate appraisers thousands of dollars. Some companies had ceased operating and were not meeting payment obligations. This administrative regulation would assist appraisers with getting paid appropriately, and Mr. Dever supported this administrative regulation.
A motion was made and seconded to approve the following amendments: (1) to make conforming amendments to the NECESSITY, FUNCTION, AND CONFORMITY paragraph to correct inconsistencies between the administrative regulation as originally filed by the agency and the administrative regulation as amended after comments; (2) to amend the RELATES TO paragraph to correct a statutory citation; and (3) to amend Section 1 to make technical corrections. Without objection, and with agreement of the agency, the amendments were approved.
Board of Licensure for Marriage and Family Therapists: Board
201 KAR 32:010. Definitions for 201 KAR Chapter 32. Angela Evans, assistant attorney general, and Sandra L. Miller, board chair and family therapist, represented the board.
A motion was made and seconded to approve the following amendments: to amend Section 1 to: comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 32:020. Equivalent course of study.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 2, 3, and 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.
201 KAR 32:025. Marriage and family therapist associate.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 3 and 4 to change "supervisor of record" to "approved supervisor"; and (2) to amend Section 4 to comply with the formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 32:035. Supervision of marriage and family therapist associates.
A motion was made and seconded to approve the following amendments: to amend Sections 2, 3, and 10 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 32:045. Examination.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; and (2) to amend Sections 1 and 3 to correct minor drafting errors. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 32:050. Code of ethics.
201 KAR 32:060. Continuing education requirements.
A motion was made and seconded to approve the following amendments: to amend Sections 2, 3, and 7 to comply with the drafting 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. Jim Grawe, assistant attorney general, and Martin Wesley, assistant professor and vice-chair, represented the board.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 5, 7, 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.
201 KAR 36:070. Education and examination requirements.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to use consistent terminology; and (2) to amend the RELATES TO paragraph and Sections 1 and 4 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: Water Patrol
301 KAR 6:040. Zoning or marking of waterways. Captain Mike Fields, boating law administrator; David Hise, counsel; and Mark Mangeot, director, legislative affairs, represented the department.
In response to a question by Co-Chair Bowen, Captain Fields stated that several incidents on waterways throughout the Commonwealth precipitated this administrative regulation.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 2, and 5 to correct minor drafting errors. Without objection, and with agreement of the agency, the amendments were approved.
GENERAL GOVERNMENT CABINET: Department of Agriculture: Office of State Veterinarian: Division of Animal Health: Livestock Sanitation
302 KAR 20:052 & E. Animal Carcass Composting. Clint Quarles, staff attorney, and Dr. Robert Stout, state veterinarian, represented the division.
In response to a question by Senator Givens, Dr. Stout stated that only commercial animal carcass composting facilities were required to register, and registration could occur via telephone, field officer, or online.
A motion was made and seconded to approve the following amendments: to amend the TITLE and Section 2 to make conforming amendments 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.
JUSTICE AND PUBLIC SAFETY CABINET: Department of Criminal Justice Training: General Training Provision
503 KAR 3:040. Telecommunications (Public Safety Dispatch) Academy trainee requirements; misconduct; penalties; discipline procedures. Carrie S. Ditterline, instructor; Steve Lynn, assistant general counsel; and Joan Meadows, instructor, represented the department.
In response to a question by Co-Chair Bowen, Mr. Lynn stated that the dress code requirements were developed so that all academy trainees would have the same standard uniform in order to eliminate discrepancies between larger and smaller districts.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to delete an unnecessary citation; (2) to amend Sections 1, 6, 7, 8, and 13 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (3) to amend Section 8 to make a conforming amendment to correct an inconsistency between the currently effective administrative regulation and the proposed administrative regulation filed by the agency. Without objection, and with agreement of the agency, the amendments were approved.
503 KAR 3:050. Telecommunications (Public Safety Dispatch) Academy-CJIS graduation requirements; records.
A motion was made and seconded to approve the following amendments: to amend Section 1 to: (1) comply with the drafting and formatting requirements of KRS Chapter 13A; and (2) include an additional relevant definition. Without objection, and with agreement of the agency, the amendments were approved.
TRANSPORTATION CABINET: Department of Vehicle Regulation: Division of Motor Vehicle Licensing: Motor Vehicle Tax
601 KAR 9:160. Surrender or reactivation of vehicle title. Godwin Onodu, assistant director, and Todd Shipp, attorney, represented the division.
In response to questions by Representative Lee, Mr. Onodu stated that, if a vehicle purchaser failed to remove the seller’s name from the title by the statutory deadline, the seller had the authority to remove the name by petitioning the county clerk. Mr. Shipp stated that he was uncertain but believed that, if the title was signed and notarized but paperwork was incomplete, the title was still recognized as changed for purposes of liability but not for purposes of taxation. The seller would still get a tax bill, which may serve to alert the seller that the paperwork on the title transfer was incomplete. The seller may then file an affidavit to be processed by the county clerk to alleviate the tax burden.
In response to a question by Representative Ford, Mr. Shipp stated that he was uncertain but believed that the Kentucky Supreme Court had previously determined that a signature and notarization of the title without complete paperwork relieved the seller of liability but not taxation. This administrative regulation would relieve the seller from the tax burden as well as the legal liability.
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 make technical corrections; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 and 2 to make CONFORMING AMENDMENTS to correct inconsistencies between the currently effective administrative regulation and the proposed administrative regulation filed by the agency; (3) to amend Sections 1 through 3 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (4) to revise the FISCAL NOTE ON STATE OR LOCAL GOVERNMENT to correct a typographical error referencing an incorrect administrative regulation number. Without objection, and with agreement of the agency, the amendments were approved.
EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Department of Workforce Investment: Office for the Blind: Department of the Blind
782 KAR 1:010. Kentucky business enterprises. Richard Nesbitt, director; Patrick Shirley, staff attorney; and Christopher Smith, executive director, represented the department.
In response to a question by Co-Chair Bowen, Mr. Nesbitt stated that the set aside was used to pay health insurance costs.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to correct statutory citations; (2) to amend Sections 1, 2, 3, 5, 6, 8, 9, 10, and 12 to conform with the drafting and formatting requirements of KRS Chapter 13A; and (3) to amend Sections 2 and 9 to make conforming amendments 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.
PUBLIC PROTECTION CABINET: Kentucky Horse Racing Commission: Thoroughbred Racing
810 KAR 1:014. Weights. Marc A. Guilfoil, deputy executive director, represented the commission.
A motion was made and seconded to approve the following amendment: to amend Section 1 to correct an inconsistency between the currently effective administrative regulation and the proposed administrative regulation filed by the agency. Without objection, and with agreement of the agency, the amendment was approved.
CABINET FOR HEALTH AND FAMILY SERVICES: Office of Health Policy: Data Reporting and Public Use Data Sets
900 KAR 7:030 & E. Data reporting by health care providers. Allison Lile, health data administrator, and Chandra Venettozzi, health data administrator, represented the office.
Department for Mental Health and Mental Retardation Services: Division of Administration and Financial Management: Institutional Care
908 KAR 3:050. Per diem rates. Glenn Bryant, assistant director; Beth Jurek, executive director; and Kevin Mudd, division director, represented the division.
In response to a question by Representative Lee, Ms. Jurek stated that reimbursement rates were established for each facility separately from Medicaid and private insurer rates. These rates were the amounts a patient with sufficient funds and without Medicaid or private insurance would pay for services. This administrative regulation applied to approximately ten patients at any given time. This administrative regulation did not affect Medicaid and did not have requirements pertaining to negotiated rates of reimbursement.
In response to questions by Senator Givens, Ms. Jurek stated that this administrative regulation was revised annually, and the reimbursement rates were based on the actual costs to each facility. Mr. Bryant stated that these rates approximated those paid by Medicaid and private insurers for similar services. These rates fluctuated significantly because these facilities were more like hospital settings, with a much higher rate of patient changes than home and community settings. Ms. Jurek stated that community setting payments were funded almost exclusively by Medicaid. The division had received more waivers to home or community settings recently. Approximately 69 percent of dollars was spent on the home or community settings, rather than hospital-like institutions. Five years ago, for example, the facility of Oakwood had approximately 400 patients; now, there are 100 patients. Those patients still remaining in hospital-like institutional facilities tended to have more service-intensive needs, which caused the cost per patient to rise. Oakwood costs especially rose after federal intervention removed accreditation and forced Oakwood to revise its care plan to include additional and more intensive services to its clients. The long-term plan was to transition many of these facilities to outpatient support centers where patients in home or community settings could get short-term supportive and interventional care and services. The patient populations at these facilities had been gradually declining. Ten years ago there were approximately 1,500 patients in hospital-like institutional settings. The division predicted approximately 800 to 900 patients in these facilities in the next five years. Mr. Mudd stated that the average length of stays was also declining.
In response to a question by Representative Ford, Ms. Jurek stated that Medicaid and private insurance reimbursement rates for similar services were comparable with these reimbursement rates for patients with sufficient personal funding. When Oakwood was at its highest patient population, costs were approximately $250 per patient per day. The current rate was $1,100 per patient per day. This rate had increased although patient population had decreased because the remaining patients tended to have more intensive care needs. Additionally, the federally mandated services that resulted after the loss of accreditation of the facility significantly increased care costs.
Representative Lee stated that, before the economy began to enter the current recession state, a plan was in place to create a facility in each region to assist patients with home or community placement. The recession significantly reduced the ability to initiate this plan to create the necessary support facilities. These support facilities were the goal toward which Kentucky needed to be striving.
In response to a question by Co-Chair Bowen, Mr. Bryant stated that the reimbursement rates were established basically by taking the total cost and dividing that by the number of patients. There was no subjectivity in creating the rates. The amounts were reviewed and audited on a regular basis.
Staff Note: At the January 2012 meeting of the Administrative Regulation Review Subcommittee, an amendment was made to this administrative regulation to: (1) amend Section 1(1)’s table to make CONFORMING AMENDMENTS to correct the rates being deleted for four (4) facilities to reflect the rates established in the amendments approved at the January 2011 ARRS meeting; and (2) amend Section 1 to comply with the formatting requirements of KRS 13A.220.
The following administrative regulations were deferred to the March 12, 2012, meeting of the Subcommittee:
PERSONNEL CABINET: Personnel Cabinet, Classified
101 KAR 2:102. Classified leave administrative regulations.
101 KAR 2:140. Workers' Compensation Fund and Program.
Personnel Cabinet, Unclassified
101 KAR 3:015. Leave administrative regulations for the unclassified service.
GENERAL GOVERNMENT CABINET: Kentucky Boxing and Wrestling Authority: Athletic Commission
201 KAR 27:011. General requirements for boxing and kickboxing shows.
201 KAR 27:017. Requirements for elimination events.
201 KAR 27:035. Seconds.
201 KAR 27:055. Physicians.
TRANSPORTATION CABINET: Department of Vehicle Regulation: Division of Motor Carriers: Division
601 KAR 1:019. Overweight or overdimensional farm equipment.
EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Board of Education: Department of Education: Kindergartens and Nursery Schools
704 KAR 5:070. Common Kindergarten entry screener.
CABINET FOR HEALTH AND FAMILY SERVICES: Office of Health Policy: Certificate of Need
900 KAR 6:125. Certificate of Need annual surveys, and registration requirements for new Magnetic Resonance Imaging units.
The Subcommittee adjourned at 2 p.m. until March 12, 2012.