Call to Order and Roll Call
The March meeting of the Administrative Regulation Review Subcommittee was held on Monday, March 12, 2012, at 1:00 PM, in Room 149 of the Capitol Annex. Representative Johnny Bell, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Representative Johnny Bell, Co-Chair; Senators David Givens and Joey Pendleton; Representatives Robert R. Damron, Danny Ford, and Jimmie Lee.
Guests: Robert Brown, Alicia Sneed Education Professional Standards Board; Gilda Hill, Dennis Shepherd, Kentucky Department of Military Affairs; Dinah Bevington, Mary Elizabeth Harrod, Personnel Cabinet; Becky Klusch, Board of Physical Therapy; Peter Ervin, Angela Robertson, Michael West, Kentucky Boxing and Wrestling Authority; Larry Disney, Jim Grawe, Real Estate Appraisers Board; Ron Brooks, David Hise, Benjy Kinman, Mark Mangeot, Department of Fish and Wildlife; Amy Barker, J. Todd Henning; Justice and Public Safety Cabinet; Wayne Onkst, Barbara Teague, Kentucky Department of Libraries and Archives; Elizabeth Caywood, Michelle DeJohn, Robin Herring, Marybeth Jackson, Stuart Owen, Chandra Venettozzi, and Neville Wise, Cabinet for Health and Family Services.
LRC Staff: Dave Nicholas, Donna Little, Emily Caudill, Sarah Amburgey, Emily Harkenrider, Karen Howard, Betsy Cupp, and Laura Napier.
The Administrative Regulation Review Subcommittee met on Monday, March 12, 2012, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
EDUCATION PROFESSIONAL STANDARDS BOARD: Assessment
16 KAR 6:010. Examination prerequisites for teacher certification. Robert Brown, director, Professional Learning and Assessment, and Alicia A. Sneed, director of legal services, represented the board.
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.
OFFICE OF THE GOVERNOR: Department of Veterans' Affairs: State Veterans' Nursing Homes
17 KAR 3:020. Maximum charge for room and care at state veterans' nursing homes. Gilda Hill, executive director, and Dennis W. Shepherd, staff attorney, represented the department.
In response to a question by Co-Chair Bell, Ms. Hill stated that veterans were charged based on their ability to pay. A veteran would not be denied care because the veteran could not pay.
In response to a question by Representative Damron, Ms. Hill stated that calculations regarding ability to pay took into consideration financial assets and liabilities, including the financial needs of a spouse or family.
PERSONNEL CABINET: Personnel Cabinet, Classified
101 KAR 2:180 & E. Employee performance evaluation system. Dinah Bevington, general counsel, and Mary Elizabeth Harrod, director, Division of Employee Management, represented the cabinet.
A motion was made and seconded to approve the following amendments: to amend Sections 3, 5, and 7 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 Physical Therapy: Board
201 KAR 22:053. Code of ethical standards and standards of practice for physical therapists and physical therapist assistants. Becky Klusch, executive director, represented the board.
A motion was made and seconded to approve the following amendments: to amend Sections 2 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.
Kentucky Boxing and Wrestling Authority: Athletic Commission
201 KAR 27:011. General requirements for boxing and kickboxing shows. Peter Ervin, cabinet general counsel and acting executive director of the authority, and Michael West, assistant attorney general, represented the authority.
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 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 Sections 1 through 8, 10, 11, 13, 15, 17 through 21, 23, 25 through 38, 40, 42 through 45, 47, and 49 through 52 to comply with the drafting and formatting requirements of KRS Chapter 13A; (4) to amend Section 53 to revise material incorporated by reference; and (5) to amend Section 20 to raise the maximum limit of the health insurance deductible for competitors from $300 to $1,000. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 27:012. Wrestling show requirements.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2 to make conforming amendments to correct inconsistencies between the currently effective administrative regulation and the administrative regulation as amended after comments; and (2) to amend Section 4 for clarification. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 27:016. General requirements for mixed martial arts matches, shows, or exhibitions.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 2 and 37 to make conforming amendments to correct inconsistencies between the currently effective administrative regulation and the administrative regulation as amended after comments; and (2) to amend Sections 2, 8, 21, 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.
201 KAR 27:017. Requirements for elimination events.
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 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 Sections 1 through 5, 9, 11, 12, 15, 18, 20, 21, 23, 24, 26, and 28 to comply with the drafting and formatting requirements of KRS Chapter 13A; (4) to amend Section 19 to make a conforming amendment to correct an inconsistency between the currently effective administrative regulation and the proposed administrative regulation filed by the agency; and (5) to amend Section 29 to revise material incorporated by reference. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 27:035. Seconds.
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 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 2, 3, 4, 7, 9, 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.
201 KAR 27:055. Physicians.
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 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, 7, 9, and 10 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (4) to amend the SUMMARY OF MATERIAL INCORPORATED BY REFERENCE to make corrections. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 27:100. General requirements for amateur mixed martial arts shows.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph and Sections 1, 10, and 45 to make technical corrections; and (2) to amend Section 2 to make conforming amendments to correct an inconsistency between the currently effective administrative regulation and the administrative regulation as amended after comments. Without objection, and with agreement of the agency, the amendments were approved.
Real Estate Appraisers Board: Board
201 KAR 30:040. Standards of practice. Larry Disney, executive director, and Jim Grawe, assistant attorney general, represented the board.
A motion was made and seconded to approve the following amendments: (1) to delete Section 2 because it duplicates existing regulatory provisions; and (2) to amend Section 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: Kentucky Department of Fish and Wildlife Resources: Fish
301 KAR 1:152. Asian Carp Harvest Program. David Hise, counsel, Benjy Kinman, deputy commissioner, and Mark Mangeot, legislative liaison, represented the department.
In response to a question by Senator Pendleton, Mr. Kinman stated that the minimum net size was amended to increase the harvest of Asian carp. The amendment liberalized the administrative regulation rather than making it more stringent.
A motion was made and seconded to approve the following amendments: (1) to amend the title to include “Scaled Rough Fish”; (2) to amend Section 1 to define “scaled rough fish”; (3) to amend Section 3(7) to include the ability to sell the harvested scaled rough fish; (4) to amend Section 3 to: (a) require a harvest ratio of seventy-five (75) percent Asian carp to twenty-five (25) percent scaled rough fish over a one (1) month period; and (b) provide for suspension of a licensee if there is a failure to follow regulatory requirements; and (5) to amend section 6 to correct a minor drafting error. Without objection, and with agreement of the agency, the amendments were approved.
Game
301 KAR 2:172. Deer hunting seasons, zones, and requirements.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to correct a minor drafting error. Without objection, and with agreement of the agency, the amendments were approved.
301 KAR 2:178. Deer hunting on Wildlife Management Areas, state parks, other public lands, and federally controlled areas.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to correct a minor drafting error; and (2) to amend Section 6 to: (a) insert the requirements for Big Rivers WMA; (b) delete the requirements for the Scott County WMA; (c) delete the Sturgis WMA; (d) insert the Veteran’s Memorial WMA; (e) require closure of all tracts of the Western KY WMA during firearm quota hunts; and (f) require check-in for the “A” tracts of Western KY WMA. Without objection, and with agreement of the agency, the amendments were approved.
JUSTICE AND PUBLIC SAFETY CABINET: Department of Corrections: Office of the Secretary
501 KAR 6:250 & E. Graduated sanctions for technical violations of probation and compliance incentives system. Amy Barker, assistant general counsel, and J. Todd Henning, staff attorney, represented the department.
In response to a question by Representative Ford, Ms. Barker stated that failing to complete community service was being added as a minor violation because it was inadvertently omitted from the administrative regulation as originally filed.
In response to questions by Co-Chair Bell, Ms. Barker stated that she would relay his concerns to the local facilities staff regarding the minimum staffing requirement for the smallest of the state's jails.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to include more specific statutory references; (2) to amend Section 2 to establish procedures if an officer determines that an informal response or graduated sanctions are not appropriate; (3) to amend Section 3 to include "failure to complete community service" as a minor violation in accordance with KRS 439.3107(1); (4) to amend Section 4 to delete "felony conviction" and "absconding supervision" from the list of major violations as they are already categorized as violations which must be returned to the releasing authority; (5) to amend Section 4 to include "failure to participate in a required program or service" as a major violation in accordance with KRS 439.3107(1); (6) to amend Section 6 to establish procedures if an offender contests the graduated sanction to be imposed for a minor violation; (7) to amend Section 8 to include "awarding certificates of achievement," "deferring a monthly supervision fee payment," and "asking the supervised individual to be a mentor" as compliance incentives in accordance with KRS 439.250(8); and (8) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 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.
501 KAR 6:270 & E. Probation and parole policies and procedures.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to delete extraneous references; (2) to amend Section 1 and the material incorporated by reference to clarify provisions, to conform to the requirements of 501 KAR 6:250, and to correct technical errors; and (3) to amend the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Section 1 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.
EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Department for Libraries and Archives: Public Records Division: Archives
725 KAR 1:061. Records retention schedules; authorized schedules. Wayne Onkst, state librarian and commissioner, and Barbara Teague, state archivist, represented the department.
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. Chandra Venettozzi, health data administrator, represented the office.
In response to a question by Senator Givens, subcommittee staff stated that the amendment before the subcommittee clarified that the registration requirements are mandatory rather than voluntary.
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 clarify the provisions of the administrative regulation; (3) to amend Sections 3, 7, and 11 to comply with the drafting requirements of KRS Chapter 13A; (4) to amend Section 12 to update the edition dates of the material incorporated by reference; and (5) to amend the material incorporated by reference to: (a) comply with the drafting requirements of KRS Chapter 13A; (b) insert the same certification page at the end of each survey; and (c) correct Web site addresses provided in the material. Without objection, and with agreement of the agency, the amendments were approved.
Department for Medicaid Services: Commissioner's Office: Managed Care
907 KAR 17:005 & E. Managed care organization requirements and policies. Stuart Owen, regulation coordinator, and Neville Wise, acting commissioner, represented the department.
In response to questions by Senator Givens, Mr. Wise stated that because this administrative regulation was drafted after the managed care contracts were entered, the department based the regulatory requirements on the existing contracts and the federal waiver from the Centers for Medicaid and Medicare Services. The department also amended this administrative regulation after comments to ensure that its procedures for resolving provider grievances and appeals complied with the contractual provisions. While the department has some limited ability to address provider concerns with the MCOs, contract enforcement would be a legal matter. Subcommittee staff stated that the governing statute requires payment of claims by providers within 30 days.
In response to questions by Representative Lee, Mr. Wise stated that the department currently has 12 employees dedicated to compliance issues, with many other departmental employees temporarily assisting in that effort. Long term, the department will transition to a 15 to 20 person compliance branch. The department has frequent direct contact with the MCOs and the subcontractors. Representative Lee stated that at this point in the process, claim submission and prior authorizations should be electronic. A long wait for paper processing is unacceptable.
In response to a question by Senator Givens, Mr. Owen stated that by statute and under the terms of the contracts, the Finance and Administration Cabinet has the authority to terminate an MCO contract for noncompliance. As a preliminary step, the department could institute a corrective action plan.
In response to questions by Co-Chair Bell, Mr. Wise stated that the MCO determines what qualifies as a medical necessity. A member wishing to contest that determination can appeal to the MCO or through the department's administrative law judge. An MCO has to pay interest on any overdue payments to providers. The department does not need additional time to consider adding consumer protection provisions to this administrative regulation. The department is looking at consumer protection legislation and needs to have this general regulatory structure in place before the emergency administrative regulation expires. Subcommittee staff stated that the department could alternatively withdraw the current administrative regulation and file a new emergency administrative regulation.
Representative Lee stated that this administrative regulation should not be deferred until the next meeting of the subcommittee. It is needed as soon as possible to govern the MCOs. Once effective, the subcommittee can recall the administrative regulation if needed to address any deficiencies. Additionally, Mr. Wise stated that the department would not agree to a deferral.
Co-Chair Bell stated that he has concerns regarding this administrative regulation. It lacks sufficient consumer protection and is too long to be promulgated as a single administrative regulation.
In response to questions from Senator Pendleton, Mr. Wise stated that the contracts require the MCOs to determine prior authorization within 48 hours but that deadline is not always met. Senator Pendleton stated that the treating physician should be able to determine what is medically necessary with less red tape. The wait for authorization can be very long for a sick person needing a diagnostic test.
Representative Lee restated his longstanding commitment to patient protection in the Medicaid program.
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 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 the following terms: “complex or chronic condition”, “QAPI”, and “state survey agency”; (4) to amend Section 5 to require the provider to give a copy of the notice of decision for an appeal to the enrollee or to inform the enrollee of its provisions; (5) to amend Section 7 to authorize an enrollee to change primary care providers if the enrollee is denied access to needed medical services; (6) to amend Section 9 to authorize an MCO to include in the member handbook the names and contact information for non-primary care providers in the MCO’s network; (7) to amend Section 38 to specify the duties of the Pharmacy and Therapeutics Committee; (8) to amend Section 51 to specify that the Quality and Member Access Committee shall provide the results of its reviews to the MCO; (9) to amend Section 66 to clarify that an MCO shall not disclose information related to an Open Records request without prior written authorization from the department; and (10) to amend Sections 1 to 9, 11 to 19, 21 to 30, 32, 33, 35 to 59, 64, 66, 68, and 69 to: (a) comply with the drafting and formatting requirements of KRS Chapter 13A; and (b) correct citations and cross-references. Without objection, and with agreement of the agency, the amendments were approved.
Department for Community Based Services: Division of Child Care: Day Care
922 KAR 2:240. Kentucky Early Care and Education Trainer's Credential and training approval. Elizabeth Caywood, internal policy analyst, and Mary Beth Jackson, division director, represented the division.
A motion was made and seconded to approve the following amendments: to amend Sections 11, 12, 16, and 17 to comply with the drafting and formatting requirements of KRS Chapter 13A and for technical corrections. Without objection, and with agreement of the agency, the amendments were approved.
The following administrative regulations were deferred to the April 11, 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: Board of Accountancy: Board
201 KAR 1:081. Initial firm license, renewal, and reinstatement.
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.
The Subcommittee adjourned at 3:30 p.m. until April 11, 2012.