Call to Order and Roll Call
The November meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, November 13, 2012, at 1:00 PM, in Room 149 Annex of the Capitol. 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 Robert R. Damron and Jimmie Lee.
Guests: Joe Cowles, Personnel Cabinet; DeVon Hankins, Kim Bechtel, Steven Jones, Dwight Price, Finance and Administration Cabinet; Karen Greenwell, Hartsel Stovall, Board of Barbering; Scott D. Majors, Board of Physical Therapy; Margaret Everson, Jeff Ross, Karen Waldrop, Department of Fish and Wildlife; Peter Goodmann, Division of Water; Kevin Brown, Robin Chandler, Johnny W. Collett, Kentucky Department of Education; Stephanie Bell, Jeff Deroven, Daniel Hinton, Allyson Honaker, Brent Kirtley, Gerald Wuetcher, Public Service Commission; Dawn Bellis, Ann Ramser, William Swope, Department of Housing, Buildings and Construction; Jeff Jagnow, Kevin Mudd, Ray Peters; Diana Mullins, Chandra Venettozzi; Stuart Owen, Phyllis Sosa, Morallia Tran, Cabinet for Health and Family Services.
LRC Staff: Dave Nicholas, Emily Caudill, Donna Little, Sarah Amburgey, Karen Howard, Betsy Cupp, and Laura Napier.
The Administrative Regulation Review Subcommittee met on Tuesday, November 13, 2012, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
PERSONNEL CABINET: Office of the Secretary: Personnel Cabinet, Classified
101 KAR 2:210 & E. 2013 Plan Year Handbook for the Public Employee Health Insurance Program. Joe Cowles, general counsel, represented the department.
FINANCE AND ADMINISTRATION CABINET: Department of the Controller: Office of Financial Management: State Investment Commission
200 KAR 14:011. Qualified investments. Devon Hankins, policy advisor; Kim Bechtel, financial specialist; Steven Jones, portfolio manager; and Dwight Price, portfolio manager, represented the office.
A motion was made and seconded to approve the following amendments: to amend the RELATES TO paragraph, Sections 1, 2, 3, 6, 7, 9, and 10 to comply with the drafting and formatting requirements of KRS Chapter 13A and for specificity. Without objection, and with agreement of the agency, the amendments were approved.
200 KAR 14:081. Repurchase agreement.
A motion was made and seconded to approve the following amendment: to amend Section 8 to make a technical correction. Without objection, and with agreement of the agency, the amendment was approved.
200 KAR 14:091. Guidelines for money market instruments.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to comply with the drafting and formatting requirements of KRS Chapter 13A; and (2) to amend Section 1 to make technical corrections. Without objection, and with agreement of the agency, the amendments were approved.
GENERAL GOVERNMENT CABINET: Board of Barbering: Board
201 KAR 14:105. Barbering school enrollment and postgraduate requirements. Karen Greenwell, administrator, and Hartsel Stovall, chair, represented the board.
A motion was made and seconded to approve the following amendments: to amend Section 3 to clarify when a barber school employee is prohibited from also enrolling in the school as a student. Without objection, and with agreement of the agency, the amendments were approved.
Board of Physical Therapy: Board
201 KAR 22:001. Definitions for 201 KAR Chapter 22. Scott D. Majors, executive director, represented the board.
201 KAR 22:053. Code of ethical standards and standards of practice for physical therapists and physical therapist assistants.
A motion was made and seconded to approve the following amendments: to amend Sections 4 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.
TOURISM, ARTS AND HERITAGE CABINET: Department of Fish and Wildlife Resources: Fish
301 KAR 1:015. Boat and motor restrictions. Jeff Ross, assistant director of fisheries; Margaret Everson, general counsel; and Dr. Karen Waldrop, division director, represented the department.
301 KAR 1:146. Commercial fishing gear.
301 KAR 1:155. Commercial fishing requirements.
Game
301 KAR 2:225 & E. Dove, wood duck, teal, and other migratory game bird hunting.
Wildlife
301 KAR 4:070. Scientific and educational collecting permits.
EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Board of Education: Department of Education: Office of Instruction
704 KAR 3:305. Minimum requirements for high school graduation. Kevin C. Brown, general counsel; Robin Chandler, policy advisor; and Johnny W. Collett, director, Division of Learning Services, represented the department.
In response to a question by Senator Givens, Ms. Chandler stated that students were required to take a math course each year of high school, including three specific courses and an elective in math. Students who completed all high school graduation requirements early could graduate in three years.
Mr. Collett stated that there had been confusion about the certificate of attainment’s effect on the drop-out numbers. A student who received a certificate of attainment was not technically a drop-out but was not counted as a graduate as that category only included those students who completed the requirements leading to a regular diploma fully aligned to the state’s standards. Each student’s means of exit is reported. Mr. Brown stated that the federal No Child Left Behind law established requirements on how to count alternative assessments with the high school graduation rate.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 3, 4, 6, and 7 to comply with the drafting requirements of KRS Chapter 13A; and (2) to amend Section 1 to clarify that a student is required to take three specified math courses and a fourth class in mathematics that counts as an elective. Without objection, and with agreement of the agency, the amendments were approved.
ENERGY AND ENVIRONMENT CABINET: Public Service Commission: Utilities
807 KAR 5:001. Rules of procedure. Jeff Deroven, executive director; Stephanie Bell, deputy executive director; Daniel Hinton, public utility rate analyst; Allyson Honaker, staff attorney; Brent Kirtley, branch manager; and Gerald Wuetcher, executive advisor, represented the commission.
Co-Chair Bowen stated that he appreciated the commission’s process in formulating these administrative regulations, which included working with stakeholders and meeting with utilities to resolve potential conflicts.
In response to a question by Senator Givens, Mr. Deroven stated that maintaining the integrity of data was important, and that technical upgrades were still needed in order to achieve the commission's goal of paperless record-keeping. It was projected to take another six years before the commission fully implemented electronic filing by all utilities in Kentucky since the transition was occurring in stages. The largest utilities converted to electronic filing initially. Other utilities may request permission to file electronically by submitting one copy on paper along with the electronic submission. As the transitions occur, the commission will amend the administrative regulations to enable to next stage of the transition process.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph 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 previously defined in the body of this administrative regulation to this section; (4) to amend Sections 1 through 20 and 22 to comply with the drafting and formatting requirements of KRS Chapter 13A; (5) to amend Section 8(4) to establish provisions for submission of electronic audio or video files to the commission; (6) to amend Section 13(3)(e) to clarify provisions regarding confidential material; and (7) to update material incorporated by reference commensurate with forms currently in use. Without objection, and with agreement of the agency, the amendments were approved.
807 KAR 5:006. General rules.
A motion was made and seconded to approve the following amendments: (1) to amend the TITLE and the RELATES TO and STATUTORY AUTHORITY paragraphs to make technical corrections for consistency among administrative regulations; (2) to amend the RELATES TO paragraph to add statutory citations; (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; (4) to amend Sections 1 through 29 to comply with the drafting and formatting requirements of KRS Chapter 13A; (5) to amend Section 29 to include forms the commission is using that were inadvertently not previously incorporated by reference; and (6) to amend Sections 7 and 26 to clarify provisions regarding the frequency of meter inspections and the records required to be kept regarding inspections. Without objection, and with agreement of the agency, the amendments were approved.
807 KAR 5:011. Tariffs.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add a statutory citation; and (2) to amend Sections 1 through 4 and 6 through 14 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
807 KAR 5:076. Alternative rate adjustment procedure for small utilities.
A motion was made and seconded to approve the following amendments: to amend Sections 1 through 7, 9 through 13, and 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.
PUBLIC PROTECTION CABINET: Department of Housing, Buildings and Construction: Division of Building Codes Enforcement: Elevator Safety
815 KAR 4:030. Elevator contractor licensing requirements. Dawn Bellis, general counsel; Ann Ramser, staff attorney; and William Swope, state fire marshal, represented the department.
A motion was made and seconded to approve the following amendments: (1) to amend Section 4 to re-insert experience requirements which had been deleted in error; and (2) to amend the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and 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.
815 KAR 4:040. Elevator mechanic licensing requirements.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and 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.
815 KAR 4:060. Requirements for approval of continuing education courses and providers.
Fire Protection, Sprinkler Contractors, and Inspectors
815 KAR 22:010. Requirements for approval of continuing education courses and providers.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 2, 5, and 6 to clarify provisions; and (2) to amend Sections 1, 2, 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.
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, and Diana Mullins, policy advisor, represented the office.
900 KAR 6:125. Certificate of Need annual surveys, and registration requirements for new Magnetic Resonance Imaging units.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 2, 4, 8, 11, and 12 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Department for Medicaid Services: Commissioner's Office: Health Care-Acquired Conditions and Provider Preventable Conditions
907 KAR 14:005 & E. Health care-acquired conditions and other provider preventable conditions. Stuart Owen, regulation coordinator, represented the department.
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; and (2) to amend Sections 2 and 5 to correct two typographical errors. Without objection, and with agreement of the agency, the amendments were approved.
Department for Aging and Independent Living: Division of Quality Living: Aging Services
910 KAR 1:260. Kentucky Family Caregiver Program. Phyllis Sosa, assistant director, and Morallia Tran, program coordinator, represented the department.
Representative Lee stated that he was glad the $1,500 cap for reimbursement was removed for a family member caring for five or more children. The rate is now $500 per child. He also stated that it would be beneficial to provide a computer for each child, whether the school stated there was a need or not, as children without in-home computer access did not have equal opportunity to achieve in school.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 7, 8, 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.
The following administrative regulations were deferred to the December 17, 2012, meeting of the Subcommittee:
GENERAL GOVERNMENT CABINET: Board of Pharmacy: Board
201 KAR 2:020 & E. Examination.
201 KAR 2:030 & E. License transfer.
201 KAR 2:050 & E. Licenses and permits; fees.
201 KAR 2:061 & E. Procedures followed by the Kentucky Board of Pharmacy in the investigation and hearing of complaints.
201 KAR 2:205 & E. Pharmacist-in-charge.
Board of Optometric Examiners: Board
201 KAR 5:010 & E. Application for licensure; endorsement.
201 KAR 5:030 & E. Annual courses of study required.
201 KAR 5:130 & E. Controlled substances.
Board of Dentistry: Board
201 KAR 8:520. Fees and fines.
201 KAR 8:532 & E. Licensure of dentists.
201 KAR 8:540 & E. Dental practices and prescription writing.
Board of Medical Licensure: Board
201 KAR 9:081 & E. Disciplinary proceedings.
201 KAR 9:200 & E. National Practitioner Data Bank reports.
201 KAR 9:210 & E. Criminal background checks required for all new applicants.
201 KAR 9:230 & E. Required registration in the KASPER system; legal requirements for prescribing controlled substances in the Commonwealth of Kentucky; enforcement.
201 KAR 9:240 & E. Emergency orders and hearings; appeals and other proceedings.
201 KAR 9:310 & E. Continuing medical education.
Board of Nursing: Board
201 KAR 20:056 & E. Advanced practice registered nurse licensure, program requirements, recognition of a national certifying organization.
201 KAR 20:161 & E. Investigation and disposition of complaints.
201 KAR 20:215 & E. Continuing competency requirements.
Board of Podiatry: Board
201 KAR 25:011 & E. Approved schools; examination application; fees.
201 KAR 25:021 & E. Annual renewal of licenses, fees.
201 KAR 25:031 & E. Continuing education.
201 KAR 25:051 & E. Procedure for complaints and hearings involving licensees: temporary suspension.
201 KAR 25:090 & E. Prescribing and dispensing controlled substances.
ENERGY AND ENVIRONMENT CABINET: Department for Environmental Protection: Division of Water: Water Quality
401 KAR 5:055. Scope and applicability of the KPDES Program. Peter Goodmann, assistant director, represented the department.
In response to a question by Senator Pendleton, Mr. Goodmann stated that these administrative regulations applied to industrial waste products, not to post-storm or other naturally-produced waste, and did not have new impacts on quarries, concrete, asphalt, or other industries and the holding structures built to contain waste products.
In response to questions by Senator Pendleton and Co-Chair Bell, Mr. Goodmann stated that the state had discretion relating to permit requirements, issuance, and enforcement, even though federal requirements also needed to be met in Kentucky.
A motion was made and seconded to request deferral of consideration of this administrative regulation and 401 KAR 5:060 to the December 17 Subcommittee meeting. Mr. Goodmann stated that the department agreed to the deferral request. Without objection, and with agreement of the agency, this administrative regulation and 401 KAR 5:060 were deferred.
401 KAR 5:060. KPDES application requirements.
Department for Natural Resources: Division of Technical and Administrative Support: General Administrative Procedures
418 KAR 1:010. Definitions for 418 KAR Chapter 1.
418 KAR 1:031. Repeal of 418 KAR 1:030.
418 KAR 1:040. Grant applications.
418 KAR 1:070. Remedies.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Mental Health and Mental Retardation Services: Division of Administration and Financial Management: Institutional Care
908 KAR 3:050. Per diem rates. Jeff Jagnow, regulation coordinator; Ray Peters, program administrator, and Kevin Mudd, director, represented the department.
In response to a question by Representative Lee, Mr. Mudd stated that the annual adjustments made by this administrative regulation were based on each institution’s annual cost reports.
Co-Chair Bell stated that the top three facilities charged a per diem of $1,430, $1,370, and $1,345, averaging $1,400 as the cost per day among the top three facilities. Neither Medicare or Medicaid would cover the full cost per diem at the facilities. He stated that more should be done to help patients remain at home, thereby saving money for the state and the families involved, and that Medicare and Medicaid funds should be more directed to home-based care than facility-based care.
In response to questions by Co-Chair Bell, Mr. Mudd stated that the department requested the increases at seven facilities based on the costs at those facilities. Even though facilities had been working to transition patients to other placements, each facility still had fixed costs that did not fluctuate based on population changes at the facility and many of the remaining residents required higher medical care. As the department worked to reduce placements at each facility, the facility’s resources were also transitioning to better help the communities. He stated that he did not know the exact costs at each facility. However, since the cost of services and procedures increased annually, increases in reimbursement rates were also an annual necessity.
In response to a question by Senator Pendleton, Mr. Jagnow stated that it cost much more for a facility to provide care than was covered by Medicare or Medicaid reimbursement. He stated that it would be difficult to provide overall estimates of costs since different facilities offer different services at varying rates.
In response to questions by Senator Givens, Mr. Mudd stated that there was not currently a plan in place to consolidate facilities as the patient populations declined. Overall, the facilities have not uniformly declined since the Oakwood facility has moved out more patients than the other facilities. The goal was to move all patients now in facilities into communities and to offer clinic-like services at the facilities once patients have been transitioned to other placements. The Cabinet for Health and Family Services and the Governor oversaw the department.
Representative Lee stated that for an ICFMR the quoted price was all-inclusive, including the patient’s room and board, food, and medical treatment. Estimates for the cost of care at home were hard to obtain because the family would be responsible for the costs currently included in the all-inclusive facility rate. Currently, a patient's costs were covered by Social Security plus $35 a day. He stated that it would be worthwhile to discuss bringing a private facility into Medicare and Medicaid eligibility since this would cover all services and be less costly for the state.
Senator Givens stated that he wanted to know information regarding each facility’s census, the total amount of money needed to operate each facility, the per diem rate charged by the facility, the actual amount paid by Medicaid, private health insurance, or others on a per diem basis at each facility, the plan for consolidation and closure (or transition) at each facility, and the Supports for Community Living money and population numbers statewide and regionally. He wanted the information for each item to cover fiscal years 2009 through 2012 and the projections for 2013. Mr. Mudd stated that the department would provide the requested information to the Subcommittee for its December meeting.
A motion was made and seconded to approve the following amendments: to amend the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Section 2 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
A motion was made and seconded to request deferral of consideration of this administrative regulation as amended to the December 17 Subcommittee meeting. Mr. Mudd stated that the department agreed to the deferral request. Without objection, and with agreement of the agency, this administrative regulation as amended was deferred.
Department for Community Based Services: Division of Child Care: Day Care
922 KAR 2:090. Child-care center licensure.
922 KAR 2:100. Certification of family child-care homes.
922 KAR 2:110. Child-care center provider requirements.
922 KAR 2:190. Civil penalties.
The Subcommittee adjourned at 2:52 p.m. until December 17, 2012.