Call to Order and Roll Call
The September meeting of the Administrative Regulation Review Subcommittee was held on Monday, September 17, 2012, at 10:30 AM, in Room 149 of the Capitol Annex. Senator Joe Bowen, Chair, called the meeting to order, and the secretary called the roll. The minutes of the August 2012 meeting were approved.
Present were:
Members: Senator Joe Bowen, Co-Chair; Senators David Givens, Alice Forgy Kerr, and Joey Pendleton; Representatives Robert R. Damron, Danny Ford, and Jimmie Lee.
Guests: Jennifer Jones, Kentucky Retirement Systems; Carol Borden, Board of Nursing; Pam Duncan, Dr. Sandy Hunter, Bill Young, Board of EMS; Janine Coy-Geeslin, Katie Smith, Cabinet for Economic Development; Ann D'Angelo, Godwin Onodu, Transportation Cabinet; Amy Barker, Department of Corrections; Dawn Bellis, David Moore, Department of Housing, Buildings and Construction; Karen Chrisman, Governor's Office of Electronic Health Information; Stephanie Brammer-Barnes, Van Ingram, Cabinet for Health and Family Services; Mary Sparrow, and Steven Veno, Division of Child Support Investment.
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 Monday, September 17, 2012, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
FINANCE AND ADMINISTRATION CABINET: Kentucky Retirement Systems: General Rules
105 KAR 1:400 & E. Federal taxation limitation year. Jennifer Jones, interim general counsel, represented the retirement systems.
In response to a question by Co-Chair Bowen, Ms. Jones stated that these administrative regulations did not relate to the Pension Task Force or to legislation pending with the General Assembly. These administrative regulations were being amended to comply with federal requirements as part of the two (2) economic recovery acts. Every five (5) years the retirement system was required to submit determination letters to the IRS. As part of this round of determination letters, the retirement system was required to show that these amendments had been made.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 6 through 11 and 13 through 16 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
105 KAR 1:420. 401(h) account established under 26 USC 401(h).
In response to a question by Senator Givens, Ms. Jones stated that the payment priority option established in this administrative regulation was required by federal and state law.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to correct statutory citations; and (2) to amend Section 3 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
105 KAR 1:430. General compliance with federal tax laws.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 3, 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.
GENERAL GOVERNMENT CABINET: Board of Nursing: Board
201 KAR 20:230. Renewal of licenses. Carol Borden, executive legal assistant, represented the board.
201 KAR 20:370. Applications for licensure.
201 KAR 20:411. Sexual Assault Nurse Examiner Program standards and credential requirements.
KENTUCKY COMMUNITY AND TECHNICAL COLLEGE SYSTEM: Kentucky Board of Emergency Medical Services: Board
202 KAR 7:601. Training, education, and continuing education. Pam Duncan, legal counsel; Dr. Sandy Hunter, professor; and Bill Young, director of EMS education, represented the board.
In response to a question by Senator Givens, Ms. Duncan stated that this administrative regulation had not been updated for a long time. A task force had been convened to develop updates to this program. Mr. Young stated that these revisions brought this program up-to-date with national standards. Kentucky did not previously have an advanced EMT program, and the addition of an advanced EMT program would benefit Kentucky, especially its smaller communities. Dr. Hunter stated that this administrative regulation moved Kentucky closer to the board’s goal of national accreditation. This administrative regulation was extensively vetted by stakeholders.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to add 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 24 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (4) to amend Section 25 to add and revise material incorporated by reference. Without objection, and with agreement of the agency, the amendments were approved.
CABINET FOR ECONOMIC DEVELOPMENT: Kentucky Economic Development Finance Authority: Economic Development
306 KAR 1:011. Repeal of 306 KAR 1:010, 1:020, 1:030, 1:040, 1:050, 1:060, 1:070 and 1:090. Janine Coy-Geeslin, staff attorney, and Katie Smith, executive director, represented the authority.
Kentucky Economic Development Finance Authority
307 KAR 1:005. Applications for Kentucky Incentive Programs.
A motion was made and seconded to approve the following amendments: to amend Sections 1 and 5 to: incorporate by reference the required instruction sheet for the application forms. Without objection, and with agreement of the agency, the amendments were approved.
307 KAR 4:020. Kentucky Enterprise Initiative Act.
Kentucky Business Investment Program
307 KAR 8:011. Repeal of 307 KAR 8:010.
Kentucky Reinvestment Act (KRA)
307 KAR 9:010. Application for Kentucky Reinvestment Act Program.
JUSTICE AND PUBLIC SAFETY CABINET: Department of Corrections: Office of the Secretary
501 KAR 6:230. Little Sandy Correctional Complex. Amy Barker, assistant general counsel, represented the department.
A motion was made and seconded to approve the following amendments: to amend Section 1 and the material incorporated by reference to: (1) correct citations; (2) clarify provisions; and (3) comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
501 KAR 6:270. Probation and parole policies and procedures.
A motion was made and seconded to approve the following amendments: to amend Section 1 and the material incorporated by reference to: (1) clarify provisions; and (2) comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
501 KAR 6:999. Corrections secured policies and procedures.
This administrative regulation was reviewed and amended, without objection and with agreement of the agency, by the Subcommittee in closed session pursuant to KRS 61.810(1)(k), 61.815(2), and 197.025(6).
Asset Forfeiture
501 KAR 11:011. Repeal of 501 KAR 11:010.
TRANSPORTATION CABINET: Department of Vehicle Regulation: Division of Motor Vehicle Licensing: Motor Vehicle Tax
601 KAR 9:090. Procedures for inspecting vehicles. Ann DAngelo, assistant general counsel, and Godwin Onodu, assistant director, represented the division.
In response to a question by Co-Chair Bowen, Mr. Onodu stated that candidates for certified inspectors were nominated by local sheriffs. A certified inspector inspected vehicles for road worthiness and for transfer into Kentucky from other states. The division conducted the training and certified qualified candidates nominated by local sheriffs.
PUBLIC PROTECTION CABINET: Department of Housing, Buildings and Construction: Division of Plumbing: Plumbing
815 KAR 20:034. Requirements for approval of continuing education courses and providers. Dawn Bellis, general counsel, and David Moore, director, represented the division.
Division of Building Codes Enforcement: Electrical
815 KAR 35:020. Electrical inspections. Dawn Bellis, general counsel, represented the division.
In response to questions by Representative Ford, Ms. Bellis stated that this administrative regulation distinguished if an electrical inspection was optional or mandatory and created consistency statewide. In particular, there had been confusion regarding agricultural poultry houses. This administrative regulation clarified the different types of agricultural poultry houses and which were required to be inspected.
A motion was made and seconded to approve the following amendments: (1) to amend Section 4 to delete requirements already contained in KRS 227.460; (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 through 5 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendment was approved.
CABINET FOR HEALTH AND FAMILY SERVICES: Governor's Office of Electronic Health Information: Kentucky Health Information Exchange
900 KAR 9:010. Kentucky health information exchange participation. Karen Chrisman, staff attorney, represented the office.
In response to a question by Co-Chair Bowen, Ms. Chrisman stated that the questions from the August meeting of the Interim Joint Committee on Health and Welfare pertained to the health insurance exchange program. This administrative regulation established provisions for the health information exchange program, which providers had been using for years. This administrative regulation established contract requirements commensurate with current practices. It provided continuity of health care by facilitating dissemination of health care information among providers. The intent was to reduce duplication of services, especially laboratory testing, imaging, and immunization.
Representative Damron stated that this administrative regulation was the result of telehealth legislation from the early 2000s and was not part of the federal Affordable Care Act. Over eighty (80) providers were already participating. This administrative regulation enhanced immunization records to avoid unnecessary re-immunizations.
Representative Lee stated that this administrative regulation and accompanying program was in its infancy, but would save money by avoiding unnecessary duplicative tests and immunizations. Electronic health records were used by most hospitals already. Representative Lee heartily endorsed this administrative regulation, but noted that the cabinet still needed to enhance confidentiality. The General Assembly needed to continue to support and fund this program. The cost-savings was only one issue of concern. Patients who may not be able to explain previous tests were also suffering unnecessary physical pain and suffering.
In response to questions by Senator Givens, Ms. Chrisman stated that HIPAA regulations developed a definition for “participant.” The definition was very restrictive and included stringent security provisions, which were now enhanced as a result of the HITECH Act. Billing offices could not access personal health information. Only treatment providers who had proven treatment status could access personal health information. The cabinet had hired an outside security agency to prevent hacking and other security breaches. That vendor had a hacker on staff to search for system weaknesses, and the security monitoring was an on-going process. Staff and stakeholders were developing a cost-savings analysis, but that data was not yet available, although there was anecdotal evidence to support the hypothesis that the program would overall be a money saver. Other states and national groups had their own health information exchange systems, which seemed to be successful. The program was currently funded through a grant from the Office of the National Coordinator for Health Information Technology (ONC). Sustainability for future costs was being researched. Medicaid and payors would experience savings.
Senator Givens stated that the cabinet should engage providers in the cost-savings issues.
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 Sections 1, 2, 3, 4, 5, 8, and 9 and the forms incorporated by reference to comply with the drafting and formatting requirements of KRS Chapter 13A; and (4) to amend Section 9 to incorporate by reference the document called “HITSP Summary Documents Using HL7 Continuity of Care (CCD) component,” version 2.5, July 8, 2009. Without objection, and with agreement of the agency, the amendments were approved.
Office of Inspector General: Division of Audits and Investigations: Office of Inspector General
906 KAR 1:160 & E. Monitoring system for products containing ephedrine, pseudoephedrine, or phenylpropanolamine. Stephanie Brammer-Barnes, policy analyst, and Van Ingram, executive director, represented the division.
A motion was made and seconded to approve the following amendments: to amend the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Section 3 to specify citations and to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Department for Income Support: Child Support Enforcement: Family Support
921 KAR 1:001. Definitions. Mary Sparrow, supervisor, and Steven Veno, deputy commissioner, represented the division.
A motion was made and seconded to approve the following amendments: to amend Section 1 to place the definitions in alphabetical order. Without objection, and with agreement of the agency, the amendments were approved.
921 KAR 1:380. Child Support Enforcement Program application and intergovernmental process.
A motion was made and seconded to approve the following amendments: to amend Sections 1 and 3 to correct citations. Without objection, and with agreement of the agency, the amendments were approved.
921 KAR 1:400. Establishment, review, and modification of child support and medical support orders.
921 KAR 1:410. Child support collection and enforcement.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 2 through 5 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (2) to amend Section 4 to require the cabinet to submit a delinquent obligor’s list to the Attorney General. Without objection, and with agreement of the agency, the amendments were approved.
Other Business: Co-Chair Bowen encouraged all Subcommittee members to contact staff if an absence from a Subcommittee meeting is expected. Additionally, each member should be directly contacted and polled by Subcommittee staff prior to the meeting of attendance expectations.
Senator Pendleton stated that administrative regulations pursuant to HB 1 from the 2012 Special Session of the General Assembly were being misinterpreted, with the result being that senior citizens were being refused medication without first being subjected to drug screening. Some were driving to other states to get their prescriptions, even though these patients had been on these medications for many years. Senator Pendleton urged those concerned to submit public comments during the public comment period for these administrative regulations. Some senior citizens were testing positive for drug use because they had been taking legally prescribed medications for pain management. The testing was expensive. It seemed unfair that criminals were screened for drug use at the state’s expense, while innocent seniors were being charged for unnecessary screening. Senator Pendleton urged a cessation of drug screening pursuant to HB 1 of the Special Session of the General Assembly.
Subcommittee staff stated that administrative regulations pursuant to HB 1 of the Special Session of the General Assembly were being considered by the promulgating agencies for public comment during the month of September, and the deadline for written comments was October 1, 2012. These administrative regulations were filed as both ordinary and emergency administrative regulations. It was possible to amend the ordinary, but not the emergency, versions of these administrative regulations.
Representative Damron commended the Inspector General for addressing problems pertaining to the drug screening. The Inspector General had done an admirable job in educating providers, patients, and agencies regarding the enforcement ramifications of these administrative regulations. Some providers may have misunderstood the requirements and therefore been overzealous in requiring the drug screening. Other providers may have intentionally required unnecessary screening to oppose HB 1 of the Special Session of the General Assembly. It may be necessary for the General Assembly to clarify the law; however, the repeal of HB 1 of the Special Session of the General Assembly was unnecessary and unanticipated.
The following administrative regulations were deferred to the October 9, 2012, meeting of the Subcommittee:
ENERGY AND ENVIRONMENT CABINET: Public Service Commission: Utilities
807 KAR 5:076. Alternative rate adjustment procedure for small utilities.
CABINET FOR HEALTH AND FAMILY SERVICES: Office of Health Policy: Certificate of Need
900 KAR 6:085. Implementation of outstanding Certificate of Need when ownership has changed.
The Subcommittee adjourned at 11:45 a.m. until October 9, 2012.