Call to Order and Roll Call
The May meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, May 8, 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 Co-Chair Johnny Bell; Senators Joe Bowen and Joey Pendleton; Representatives Danny Ford and Jimmie Lee.
Guests: Becky Gilpatrick, Melissa Justice, Kentucky Higher Education Assistance Authority; Mike Carr, Alicia Sneed, Education Professional Standards Board; Whitney Meagher, Personnel Cabinet; Nathan Goldman, Sharon Mercer, Board of Nursing; Jim Grawe, Margaret Hazlette, Board of Social Work; Jim Grawe, Larry Disney, Kentucky Real Estate Appraisers Board; Ron Brooks, Margaret Everson, Mark Mangeot, Karen Waldrop; Kentucky Department of Fish and Wildlife; Amy Barker, Department of Corrections; Steve Lynn, Department of Criminal Justice; Ann D'Angelo, Rick Taylor, Transportation Cabinet; Kevin C. Brown, Department of Education; Chad Collins, Julian Tackett, Kentucky High School Athletics Association; Mark Brengelman, Mark Schmidt, Board of Home Inspectors; Virginia Carrington, and Elizabeth Caywood, 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 Tuesday, May 8, 2012, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
KENTUCKY HIGHER EDUCATION ASSISTANCE AUTHORITY: Division of Student and Administrative Services: Authority
11 KAR 4:080. Student aid applications. Becky Gilpatrick, director, Student Aid Services, and Melissa Justice, senior associate counsel, represented the authority.
A motion was made and seconded to approve the following amendment: to amend Section 1(4)(a) to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendment was approved.
KHEAA Grant Programs
11 KAR 5:145. CAP grant award determinations procedure.
EDUCATION PROFESSIONAL STANDARDS BOARD: Certification Procedures
16 KAR 4:030. Out-of-state preparation. Mike Carr, director of certification, and Alicia A. Sneed, director of legal services, represented the board.
In response to a question by Co-Chair Bowen, Ms. Sneed stated that Kentucky’s certification procedures for out-of-state educator preparation were commensurate with sister states that participated in the national group.
A motion was made and seconded to approve the following amendments: (1) to amend the TITLE and Sections 2 and 4 to comply with the drafting and formatting requirements of KRS Chapter 13A; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; and (3) to amend Section 2 to make a conforming amendment to correct an inconsistency between the effective administrative regulation and the proposed filed administrative regulation. Without objection, and with agreement of the agency, the amendments were approved.
PERSONNEL CABINET: Personnel Cabinet, Classified
101 KAR 2:102. Classified leave administrative regulations. Whitney Meagher, attorney, represented the cabinet.
In response to a question by Co-Chair Bowen, Ms. Meagher stated that these administrative regulations included more complex specifications regarding workers’ compensation because personnel benefits in private industry tended to be more limited than comparable benefits available to state government employees.
101 KAR 2:140. Workers' Compensation Fund and Program.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 4, 5, 7, and 8 and two (2) forms incorporated by reference to: (a) comply with the drafting and formatting requirements of KRS Chapter 13A; and (b) clarify that the administrative regulation applies to employees who are away from work due to a work-related illness, as well as those away from work due to a work-related injury; (2) to amend Section 2 to specify that the employee’s accumulated leave shall be reinstated to the employee’s leave balance to the extent that workers’ compensation benefits are remitted to the employee’s agency; and (3) to amend Section 8 to update the forms incorporated by reference. Without objection, and with agreement of the agency, the amendments were approved.
Personnel Cabinet, Unclassified
101 KAR 3:015. Leave administrative regulations for the unclassified service.
GENERAL GOVERNMENT CABINET: Board of Nursing: Board
201 KAR 20:490. Licensed practical nurse intravenous therapy scope of practice. Nathan Goldman, general counsel, and Sharon Mercer, nursing practice consultant, represented the board.
In response to a question by Co-Chair Bell, Ms. Mercer stated that this administrative regulation had been effective since 2004. The board received requests for clarification of requirements. These requests were the impetus to amend this administrative regulation. Mr. Goldman stated that this administrative regulation expanded the scope of practice for a licensed practical nurse pertaining to intravenous therapy. The scope of practice remained within specific limits, and nursing schools were responsible for providing rigorous requirements to maintain public safety.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 5 and 7 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (2) to add a SUMMARY OF MATERIAL INCORPORATED BY REFERENCE to provide statutorily required information about the new document incorporated by reference. Without objection, and with agreement of the agency, the amendments were approved.
Board of Social Work: Board
201 KAR 23:015. Temporary permission to practice. Jim Grawe, assistant attorney general, and Margaret Hazlette, executive director, represented the board.
In response to questions by Co-Chair Bowen, Ms. Hazlette stated that a temporary licensee was subject to at least one (1) hour of supervision for the protection of public health. Temporary licensure allowed retention of employment until a licensee was fully certified. Examinations were offered every three (3) months.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 1 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Kentucky Real Estate Appraisers Board: Board
201 KAR 30:050. Examination and experience requirement. 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 amend the RELATES TO paragraph to add a citation; (2) to amend Section 2 to correct a citation; and (3) 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.
TOURISM, ARTS AND HERITAGE CABINET: Department of Fish and Wildlife Resources: Fish
301 KAR 1:201. Recreational fishing limits. Ron Brooks, director, Division of Fisheries; Margaret Everson, acting counsel; and Karen Waldrop, director, Division of Wildlife, represented the department.
In response to a question by Senator Pendleton, Mr. Brooks stated that there were no public comments received by the department during the public comment period.
In response to a question by Co-Chair Bowen, Mr. Brooks stated that urban lakes had different fishing pressures due to higher use in more densely populated areas. Urban lakes were “overstocked” to compensate. Additionally, some lakes had water quantity levels that resulted in management challenges.
In response to a question by Representative Lee, Mr. Brooks stated that, for certain species, the increase in “catch and release” fishing over actual harvesting reduced population pressures; however, the “catch and release” survival rate was limited depending on the time of year, the stress of being caught, and the precatch health of each fish. Some fish, such as crappie, were less likely to be caught and released and more likely to be harvested and eaten.
In response to a question by Co-Chair Bell, Mr. Brooks stated that this administrative regulation limited the taking of large and small mouth bass in some waters because of pressure on the fish populations. The department established harvest restrictions to prevent overfishing and to protect the quality and quantity of fish to ensure a positive fishing experience for all sportsmen. Due to the high number of bass harvested recently, most bass were now being taken before they were even twelve (12) inches in length.
Game
301 KAR 2:251. Hunting and trapping seasons and limits for furbearers.
In response to questions by Co-Chair Bell, Dr. Waldrop stated that the expanded raccoon season was October through February. The expanded season was supported by the department because the population was stable enough to withstand the extended season. The department would investigate the reason the Professional Kennel Club’s hunting opportunities had migrated to Illinois two (2) years ago.
Co-Chair Bell stated that he was in opposition to the expanded raccoon season and that sportsmen and houndsmen groups also opposed the amended season and were not notified of the change.
In response to questions by Co-Chair Bowen, Dr. Waldrop stated that the sandhill crane season was considered a success by the department. Approximately fifty (50) sandhill crane were harvested. The department had to advertise the hunt fairly late because of the effective date of the administrative regulation. Additionally, the sandhill crane was harder to hunt than most sportsmen expected. The department expected hunters to improve as they learned the nuances of hunting the species. The department did not receive many permit requests for the season from citizens who did not intend to hunt the sandhill crane.
In response to a question by Senator Pendleton, Dr. Waldrop stated that permit requests came primarily from hunters who were traditional license buyers.
In response to a question by Representative Lee, Dr. Waldrop stated that the department was unaware of any instances of a whooping crane being taken by accident during the sandhill crane season. The season was scheduled to protect whooping cranes from misidentification.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 8, 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.
JUSTICE AND PUBLIC SAFETY CABINET: Department of Corrections: Office of the Secretary
501 KAR 6:091. Repeal of 501 KAR 6:090. Amy Barker, assistant general counsel, represented the department.
501 KAR 6:200. Comprehensive sex offender presentence evaluation procedure.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and 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.
501 KAR 6:240. Home incarceration using an approved monitoring device.
A motion was made and seconded to approve the following amendments: to amend Section 1 and the material incorporated by reference to clarify provisions and to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Kentucky Law Enforcement Council: Council
503 KAR 1:110. Department of Criminal Justice Training basic training: graduation requirements; records. Steve Lynn, assistant general counsel, represented the council.
In response to questions by Co-Chair Bell, Mr. Lynn stated that the test score requirements were being increased because test provider scoring standards had been revised. Most cadets completed the tests satisfactorily. There was a process for those who did not pass the examinations on the first attempt, so that cadets could retake the tests.
A motion was made and seconded to approve the following amendments: to amend Section 5 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.
General Training Provision
503 KAR 3:070. Telecommunications (Public Safety Dispatch Non-CJIS) Academy.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1 and 5 to update agency names; and (2) to amend Section 4 to make a conforming amendment to correct an inconsistency between the currently effective administrative regulation and the filed proposed administrative regulation. Without objection, and with agreement of the agency, the amendments were approved.
TRANSPORTATION CABINET: Department of Vehicle Regulation: Division of Motor Carriers: Division
601 KAR 1:018. Special overweight or overdimensional motor vehicle load permits. Ann DAngelo, assistant general counsel, and Rick Taylor, deputy commissioner, represented the division.
A motion was made and seconded to approve the following amendments: (1) to amend the TITLE, the RELATES TO paragraph, and Sections 1, 2, 4, 9, 10, and 20 to correct inconsistencies between the effective administrative regulation and the proposed administrative regulation filed by the agency; (2) to amend the RELATES TO paragraph to add a statutory citation; and (3) to amend Sections 1 through 14 and 16 through 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.
601 KAR 1:019. Overweight or overdimensional farm equipment.
Senator Pendleton thanked the cabinet, Transportation Committee staff, and Subcommittee staff for working to amend this administrative regulation. He stated that this administrative regulation did not compromise safety and codified what approximately ninety-nine (99) percent of farmers were already doing. It was extremely important that the cabinet quickly provide a new guidance manual to applicable law enforcement personnel so that the revisions and clarifications would be properly enforced as soon as this administrative regulation became effective.
In response to questions by Representative Ford, Mr. Taylor stated that a farmer with overweight truck questions or concerns was welcome to contact the cabinet with details, and the cabinet would follow up.
In response to a question by Co-Chair Bell, Mr. Taylor stated that this administrative regulation was more lenient than previous requirements and was reorganized to be more user friendly.
In response to a question by Co-Chair Bowen, Mr. Taylor stated that this administrative regulation did not compromise safety.
A motion was made and seconded to approve the following amendments: (1) to amend Section 7 regarding escort requirements, to: (a) establish that a single vehicle and load of farm equipment not exceeding forty-five (45) miles per hour operating on a four (4) lane highway shall have at least one (1) trail escort; (b) establish that a single vehicle and load of farm equipment 120 feet in length or more operating on a four (4) lane highway, shall have at least one (1) trail vehicle; (c) make technical corrections and minor corrections for compliance with the drafting and formatting requirements of KRS Chapter 13A; (d) comply with HB 518; and (e) reorganize requirements so that the user finds escort requirements based on vehicle specifications, rather than listing vehicle specifications under escort headings; (2) to amend the TITLE and Sections 1 through 6 and 8 through 13 to comply with the drafting and formatting requirements of KRS Chapter 13A; (3) to amend the RELATES TO paragraph to correct statutory citations; (4) 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; (5) to amend Section 7 to clarify convoy requirements on a two (2) lane highway; and (6) to amend Sections 8 and 10 through 12 for compliance with 2012 House Bill 518 and to clarify and reorganize requirements. Without objection, and with agreement of the agency, the amendments were approved.
EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Kentucky Board of Education: Department of Education: School Terms, Attendance and Operation
702 KAR 7:065. Designation of agent to manage high school interscholastic athletics. Kevin C. Brown, general counsel; Chad Collins, general counsel; and Julian Tackett, commissioner, represented the Kentucky High School Athletic Association.
In response to questions by Co-Chair Bowen, Mr. Tackett stated that this administrative regulation had been considered by the schools and associations. The main revisions included simplification of transfer and recruiting requirements, amendment of coaching requirements, and the establishment of standard consent forms for physicians and parents. Additionally, the amendments provided clarification and made technical corrections. Each complaint had multiple and different variables, requiring case-by-case consideration. The association’s goal was to provide as fair a playing field as possible for all athletes. Accountability was the biggest challenge because of the volume of unique circumstances for consideration.
In response to a question by Co-Chair Bell, Mr. Tackett stated that, in approximately 1985, the association had changed its paradigm regarding accessibility and consideration of complaints. Many cases did not reach the full hearing by an officer or the board because concerns could be resolved at earlier stages. The procedures were more kid-friendly and more nuanced, taking into account many unique variables as necessary. Determinations had been expedited because complainants no longer had to wait for the monthly board meeting for a response on behalf of the association.
A motion was made and seconded to approve the following amendments: to amend Section 5 and the material incorporated by reference to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
GENERAL GOVERNMENT CABINET: Board of Home Inspectors: Board
815 KAR 6:010. Home inspector licensing requirements and maintenance of records. Mark Brengelman, assistant attorney general, and Mark Schmidt, chair, represented the board.
In response to questions by Representative Ford, Mr. Schmidt stated that prelicensure education was required if the candidate failed the examination three (3) times and wished to continue seeking licensure. The board was authorized to deny licensure based on criminal conviction. Mr. Brengelman stated that board criteria for determining licensure denial included the seriousness of the offense, the length of time since the offense, and the applicant’s or licensee’s showing of remorse, rehabilitation, and restitution by clear and convincing evidence.
In response to questions by Co-Chair Bell, Mr. Brengelman stated that the criteria for the determination of license denial based on criminal conviction was not previously established in this administrative regulation. The board had a due process system for an applicant or licensee who had been denied licensure by the board, and the applicant or licensee was also able to have the issue considered by circuit court if the board’s due process system still left the applicant or licensee unsatisfied. The board’s due process system was authorized by and developed according to KRS Chapter 13B.
Subcommittee staff stated that the board was made of practitioners in the field of home inspection, who should be a good judge of what criminal conviction circumstances warranted denial of licensure. If an applicant or licensee was not satisfied after denial of the board, the applicant or licensee could appeal through the KRS Chapter 13B hearing procedures or bring the matter to the circuit court. Most boards had similar standards.
Co-Chair Bowen stated that Mr. Schmidt was an excellent contractor.
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 7 and 9 through 11 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (4) to amend Section 11 to make conforming amendments to correct inconsistencies between the effective administrative regulation and the proposed administrative regulation filed by the agency. Without objection, and with agreement of the agency, the amendments were approved.
815 KAR 6:070. Per diem and reimbursement for traveling and other expenses for board members.
In response to a question by Representative Ford, Mr. Schmidt stated that the board member per diem currently was thirty-five (35) dollars per meeting and it was being raised by amendment to $100, which was commensurate with most other board per diems. Reimbursable expenditures were limited to the actual cost of necessary expenditures, but there was not a limit established.
A motion was made and seconded to approve the following amendments: (1) to amend the TITLE, the RELATES TO paragraph, and Section 1 to comply with the drafting and formatting requirements of KRS Chapter 13A; 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: Department for Community Based Services: Division of Family Support: K-TAP, Kentucky Works, Welfare to Work, State Supplementation
921 KAR 2:015 & E. Supplemental programs for persons who are aged, blind, or have a disability. Elizabeth Caywood, internal policy analyst, and Virginia Carrington, branch manager, represented the division.
In response to a question by Co-Chair Bell, Ms. Carrington stated that the Michelle P. Waiver pertained to the Medicaid program only and did not impact this administrative regulation.
A motion was made and seconded to approve the following amendments: to amend the RELATES TO paragraph and Sections 1, 7, and 13 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Food Stamp Program
921 KAR 3:035. Certification process.
The following administrative regulations were deferred to the June 12, 2012, meeting of the Subcommittee:
EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Kentucky Board of Education: Department of Education: General Administration
702 KAR 1:160. School health services.
Kindergartens and Nursery Schools
704 KAR 5:070. Common Kindergarten entry screener.
The Subcommittee adjourned at 2:30 p.m. until June 12, 2012.