Call to Order and Roll Call
The January meeting of the Administrative Regulation Review Subcommittee was held on Monday, January 7, 2013, 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 Perry Clark, David Givens, Alice Forgy Kerr, and Representatives Johnny Bell, Robert Damron, Jimmie Lee, and Tommy Turner.
Guests: Whitney A. Crowe, Education Professional Standards Board; Beau Barnes, Kentucky Teachers' Retirement System; Tom Crawford, DeVon Hankins, Doug Hendrix, Bethany Rice, Finance and Administration Cabinet; Dr. Preston Nunnelley, Michael Rodman, Lloyd Vest, Kentucky Board of Medical Licensure; Ryan Halloran, George Purvis, Board of Speech-Language Pathology and Audiology; Ryan Halloran, Board of Licensure and Certification for Dieticians and Nutritionists; Shelli Deskins, Ryan Halloran, Kentucky Applied Behavior Analysis Board; William Balda, Margaret Everson, Dr. Jon Gassett, Tim Slone, Dr. Karen Waldrop; Department of Fish and Wildlife Services; Peter Goodmann, R. Bruce Scott, Division of Water; James McKenzie, Michael Mullins, Department for Natural Resources; Amy Barker, Department of Corrections; Susan Allred, Kevin Brown, David Couch, Kentucky Department of Education; Dawn M. Bellis, William Swope, Department of Housing, Buildings and Construction; Stephanie Brammer-Barnes, Mary Reinle Begley, Virginia Carrington, Elizabeth Caywood, Ijeoma Eneje, Dr. Stephen Hall, Stephanie Hold, Mary Beth Jackson, Diona Mullins, Stuart Owen, Connie Smith, Chandra Venettozzi, Cabinet for Health and Family Services; Bill Doll, Kentucky Medical Association; and John Daniels and Derek Humfleet, Central Kentucky Wellness Center.
LRC Staff: Dave Nicholas, Donna Little, Emily Caudill, Sarah Amburgey, Emily Harkenrider, Karen Howard, Betsy Cupp, and Laura Napier.
Administrative Regulations Reviewed by the Subcommittee:
EDUCATIONAL PROFESSIONAL STANDARDS BOARD: Assessment
16 KAR 6:010. Examination prerequisites for teacher certification. Whitney A. Crowe, staff attorney, 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.
Advanced Certification and Rank
16 KAR 8:030. Continuing Education Option for certificate renewal and rank change.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 3, 4, 6, 7, and 8 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (2) to amend Section 4 to clarify that the performance indicators are listed in the CEO Professional Development Portfolio Rubric incorporated by reference. Without objection, and with agreement of the agency, the amendments were approved.
FINANCE AND ADMINISTRATION CABINET: Kentucky Teachers' Retirement System: General Rules
102 KAR 1:310. Benefit eligibility conditions for members providing part-time and substitute services. Beau Barnes, deputy executive secretary of operations and general counsel, represented the system.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and NECESSITY, FUNCTION AND CONFORMITY paragraphs to correct statutory citations; and (2) 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.
102 KAR 1:340. Calculation of final average salary when there is a corresponding change in length of employment during any of the final three (3) years immediately prior to retirement.
A motion was made and seconded to approve the following amendments: (1) to amend the TITLE 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.
Department of Revenue: Office of Property Valuation: Ad Valorem Tax; Administration
103 KAR 5:220 & E. Installment payment plan guidelines for third party purchasers of certificates of delinquency. Tom Crawford, director; Doug Hendrix, staff attorney; and Bethany Rice, attorney, represented the office.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to cite to statutory definitions; (2) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs and Sections 1 through 6 and 8 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (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. Without objection, and with agreement of the agency, the amendments were approved.
GENERAL GOVERNMENT CABINET: Board of Medical Licensure: Board
201 KAR 9:001 & E. Definitions for terms used in 201 KAR Chapter 9. Dr. Preston Nunnelley, president; Michael Rodman, executive director; and Lloyd Vest, general counsel, represented the board.
In response to a question by Co-Chair Bowen, Mr. Vest stated that this administrative regulation clarified terms used in the authorizing statute. There had been confusion regarding certain terms. Co-Chair Bowen stated that it appeared that this administrative regulation defined terms used only in the statute, not in this chapter of administrative regulations, which would be a violation of KRS 13A.222(4)(e). Mr. Vest stated that the statute authorized the agency to promulgate an administrative regulation to govern prescribing and dispensing; therefore, the board had authority to define terms related to prescribing and dispensing.
Co-Chair Bell stated that this administrative regulation was needed and if it did not continue through the process, there may be disruptions in continuity of care for patients. Mr. Vest stated that this administrative regulation had universal support. The concern was that, without these definitions, continuity of care for patients would be negatively impacted. Because these provisions were codified as a criminal statute, failure to clarify these definitions could result in inappropriate criminal liability, the threat of which may discourage physicians from prescribing appropriate pain medication.
In response to a question from Co-Chair Bowen, Subcommittee staff stated that KRS 13A.222(4)(d) and (e) established requirements for definitions in administrative regulations. Terms defined in an administrative regulation were required to be used in that administrative regulation or chapter of administrative regulations, but many of the terms defined in this administrative regulation were not used in this chapter. Additionally, some of the definitions seemed to modify provisions of the statute, which would violate KRS 13A.120(2)(i).
Representative Damron stated that the Subcommittee’s focus should be on protecting the intent of the General Assembly and protecting citizens. There was an ongoing process to fine tune House Bill 1 from the 2012 Special Session of the General Assembly, and it appeared to need more revision to address concerns that arose in conjunction with this administrative regulation package; however, it was important to allow this administrative regulation to continue through the normal administrative regulation process because failure to do so may be detrimental to healthcare for the citizens. Representative Damron directed the board to proactively cooperate with revision to House Bill 1 from the 2012 Special Session of the General Assembly during the 2013 Regular Session of the General Assembly. If the board failed to do so, the Subcommittee had authority to recall this administrative regulation for consideration. Senator Givens reiterated that this administrative regulation would be recalled if necessary.
In response to questions by Representative Lee, Mr. Vest agreed to assist in revision to House Bill 1 from the 2012 Special Session of the General Assembly and stated that the process was already underway to propose amendments. Dr. Nunnelley stated that patients periodically needed to be released from long-term use of prescription pain medicine, and that sometimes happened after reassessment, which may indicate why some physicians stopped prescribing pain medication after passage of this legislation. Additionally, some physicians were concerned about legal liability pursuant to the new statutory provisions. Physicians were obligated in the interest of patient health to titrate gradually from pain medicine that had been prescribed for long-term use. There was a narrow line the board had to consider in drafting administrative regulations: the balance between preventing drug abuse and appropriately treating those patients who legitimately needed long-term pain management. This administrative regulation was not perfect, but was much better with the amendments being considered.
Co-Chair Bowen emphasized the overarching concern with this administrative regulation, which was that the emergency administrative regulation became effective with very little notification to stakeholders. Dr. Nunnelley restated that the board was committed to resolving issues with House Bill 1 from the 2012 Special Session of the General Assembly during the 2013 Regular Session of the General Assembly. Senator Kerr noted that Dr. Nunnelley was a professional of integrity and could be depended on to follow through with working to revise the legislation.
A motion was made and seconded to approve the following amendments: (1) to amend the TITLE and NECESSITY, FUNCTION, AND CONFORMITY paragraph to specify that this administrative regulation establishes definitions for terms used in KRS 218A.172, rather than for 201 KAR chapter 9; and (2) to add a definition of “patient when functioning within the scope of a hospice program”. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 9:081 & E. Disciplinary proceedings.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to add a statutory citation; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; (3) to amend Section 1 to: (a) alphabetize the definitions as required by KRS 13A.222(4)(e); and (b) add a definition of “relating to a controlled substance”; (4) to amend Section 2 relating to grievances and investigations, to require the board to provide specified information to a party who wants to register a grievance against a physician; (5) to amend Section 3 relating to reports and recommendations to specify that the panel chair or inquiry panel, rather than the executive director, may make determinations to issue a complaint; (6) to amend Section 7 to specify that a notice shall be issued as required by KRS 13B.050; (7) to amend Section 8 to specify that: (a) a hearing officer shall be appointed in accordance with KRS 13B.030 and 13B.040; (b) the board’s general counsel or assistant general counsel shall act as the prosecuting attorney; and (c) the provisions of KRS Chapter 13B shall govern the conduct of each proceeding; (8) to delete the provisions of Section 9, relating to meetings of the board and panels, as those are internal proceedings that are excluded from administrative regulations by KRS 13A.010(2)(a); (9) to amend Section 10 to move a definition from this section to Section 1, as required by KRS 13A.222(4)(d) and (e); (10) to create a new Section 11 to incorporate by reference documents relating to the filing of a grievance; and (11) to amend Sections 1 through 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 9:200 & E. National Practitioner Data Bank reports.
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 state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; 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.
201 KAR 9:210 & E. Criminal background checks required for all new applicants.
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 state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; 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.
201 KAR 9:220 & E. Restriction upon dispensing of Schedule II controlled substances and Schedule III controlled substances containing Hydrocodone.
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; and (3) to amend the TITLE and Section 1 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 9:230 & E. Required registration in the KASPER system; legal requirements for prescribing controlled substances in the Commonwealth of Kentucky; enforcement.
In response to a question by Senator Givens, Mr. Vest stated that the initial proposal for this administrative regulation, which was reflected in the emergency administrative regulation, was based on the board’s desire to place the statutory requirements and the regulatory provisions all in the administrative regulation to avoid having to use two (2) sets of law in concert. Because KRS 13A.120(2)(e) prohibited repeating statutory language in an administrative regulation, the ordinary administrative regulation was amended to comply. Differences between the emergency administrative regulation and the ordinary administrative regulation were not substantive.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph 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 and 2 to: (a) delete provisions that repeated or summarized existing statutory provisions; and (b) require a licensee to have both a valid DEA permit and KASPER registration as required by KRS 218A.202 to prescribe or dispense a controlled substance; and (4) 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.
201 KAR 9:240 & E. Emergency orders and hearings; appeals and other proceedings.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph 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 Section 1, relating to the authority to issue an emergency order, to: (a) delete provisions that repeated or summarized statutory provisions; and (b) authorize an inquiry panel or the panel’s chair to issue an emergency order in accordance with KRS 311.592 and 13B.125; (4) to amend Section 3, relating to emergency orders of suspension following a felony indictment, to clarify that if the board receives verifiable information that a licensee has been indicted for a felony that relates to a controlled substance, an emergency order shall be issued to suspend or restrict that licensee’s Kentucky license to prohibit the licensee from prescribing, dispensing, or otherwise utilizing a controlled substance in Kentucky, until further order following the final resolution of the criminal charges in the indictment; (5) to amend Section 5, relating to emergency hearings, to: (a) delete provisions that repeated KRS 13B.090(5); (b) require that the emergency hearing be conducted as required by KRS Chapter 13B and Section 5(6) of this administrative regulation; (c) delete provisions that provided that refusal of the affected physician to answer board questions shall be considered an interference with the board’s ability and a rescission of the physician’s request for an emergency hearing; and (d) delete provisions that required the affected physician to reimburse the contractual reviewer (the board’s expert witness) as a pre-requisite for cross-examining the reviewer; (6) to amend Section 6, relating to judicial review, to: (a) delete provisions that repeated or summarized statutory provisions; and (b) require that judicial review of a final order comply with KRS 13B.140, 13B.150, 13B.160, and 311.593; and (7) to amend Sections 1 through 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.
201 KAR 9:250 & E. Registration and oversight of pain management facilities.
In response to a question by Co-Chair Bowen, Mr. Vest stated that the agency proposed substantive amendments because the board realized this administrative regulation needed clarification. This administrative regulation governed pain management facilities.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1(3) to clarify as part of the definition of “pain management facility” that each separate operating location of a physician’s practice that meets the criteria established by the statutory definition shall be considered a separate pain management facility; (2) to amend Section 4(5) to require that the required registration and annual fee be submitted by September 1, rather than August 1, of each year, to be consistent with similar changes made in the Amended After Comments version; (3) to amend Section 5(5) to require a facility to notify the board within fourteen (14), rather than ten (10), days of each change in physician staffing of the facility, to be consistent with similar changes made in the Amended After Comments version; (4) to amend Section 6(3) to: (a) correct a formatting error; and (b) to specify that any violation of KRS 218A.175(3) or that section regarding on-site supervision shall constitute a violation of KRS 311.595(12) and (9); (5) to amend Section 7 to require a pain management facility to maintain any daily sign-in sheets maintained by the practice and to permit assess to those daily sign-in sheets by a board employee or agent; and (6) to amend Section 8 to provide that the board may establish proof that a clinic, practice, or facility is a pain management facility by looking at any selected thirty (30) day period to determine if: (a) the majority of patients receiving medical treatment from the clinic, practice, or facility received controlled substances or a prescription for controlled substances; and (b) one of the requirements of KRS 218A.175(1)(a) were present during that thirty (30) day period. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 9:260 & E. Professional standards for prescribing and dispensing controlled substances. Bill Doll, attorney, represented Jackson Kelly PLLC’s client, Kentucky Medical Association, and appeared in opposition to this administrative regulation.
Mr. Doll stated that this administrative regulation and House Bill 1 from the 2012 Special Session of the General Assembly needed parity in order to perform their purposes to protect against drug abuse and appropriately treat patients with long-term pain management issues. Physicians were discouraged from treating patients with long-term pain management issues because of concerns regarding civil and criminal liability. Mr. Doll advocated using clinical guidelines and advisory opinions to guide decisions regarding the appropriateness of prescribing long-term pain medication. Punitive measures resulted in stifling physicians from prescribing needed medication. The bill’s provisions have had overburdensome unintended consequences.
In response to comments by Mr. Doll, Mr. Vest stated that the Kentucky Board of Medical Licensure had not historically used some of the discretion authorized by the General Assembly in the board’s authorizing statutes. This discretion was left unused in efforts to provide flexibility to physicians. The board attempted to find a balance between the prevention of drug abuse and appropriate treatment of patients with long-term pain management issues. This administrative regulation protected citizens from potential drug abuse, while still providing physicians the flexibility that they needed. This administrative regulation was consistent with federal standards.
In response to a question by Representative Lee, Mr. Rodman stated that the board would follow up with information regarding how many specialty pain management physicians were certified in Kentucky.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to add 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; (3) to amend Section 1, relating to applicability, to specify that: (a) a physician who is authorized to prescribe or dispense a controlled substance shall comply with KRS 218A.172 and this administrative regulation; and (b) the standards of acceptable and prevailing medical practice for prescribing and dispensing a controlled substance in Kentucky shall include: 1. The standards for Schedule II controlled substances and Schedule III controlled substances with hydrocodone established in KRS 218A.172; and 2. this administrative regulation; (4) to amend Section 4(2)(h)5. to prohibit a physician from prescribing any controlled substance to a patient if, after screening, the physician determined that the controlled substance prescribed to the patient will be used or is likely to be used other than medicinally or other than for an accepted therapeutic purpose; (5) to amend Section 8, relating to educational materials, to delete the statement that educational materials were incorporated by reference; and (6) to amend Sections 1 through 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 9:310 & E. Continuing medical education.
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 clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; (3) to amend Section 1 to require that a licensee submit the Continuing Medical Education Certification Form by the renewal deadline established in another administrative regulation; (4) to amend Section 4 to specify the requirements for requesting an extension of time for meeting the continuing medical education requirements; (5) to amend Section 6 to specify the continuing medical education requirements for each cycle that is affected by the effective date of House Bill 1, July 20, 2012; (6) to amend Section 10 to incorporate by reference the required forms relating to continuing medical education requirements; (7) to amend the two (2) forms incorporated by reference to conform to the substantive provisions of this administrative regulation; and (8) to amend Sections 1 through 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.
Board of Speech-Language Pathology and Audiology: Board
201 KAR 17:090. Continuing education requirements. Ryan Halloran, assistant attorney general, and George Purvis, audiologist and board member, represented the board.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 2 and 10 to delete effective dates that would have preceded the effective date of the administrative regulation; and (2) to amend Section 10 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 17:110. Telehealth and telepractice.
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, 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.
Board of Licensure and Certification for Dietitians and Nutritionists: Board
201 KAR 33:015. Application; approved programs. Ryan Halloran, assistant attorney general, 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 and 2 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Kentucky Applied Behavior Analysis Licensing Board: Board
201 KAR 43:050. Requirements for supervision. Shelli Deskins, chair, and Ryan Halloran, assistant attorney general, represented the board.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2 to clearly establish the standards for supervisors; and (2) to amend Sections 4, 5, 7, 8, 9, and 11 through 15 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: Game
301 KAR 2:142. Spring wild turkey hunting. Margaret Everson, assistant attorney general; Dr. Jon Gassett, commissioner; and Dr. Karen Waldrop, wildlife division director, represented the department.
301 KAR 2:185. Hunter education.
301 KAR 2:221 & E. Waterfowl seasons and limits.
301 KAR 2:222 & E. Waterfowl hunting requirements on public lands.
A motion was made and seconded to approve the following amendments: to amend Section 4 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
301 KAR 2:224 & E. Waterfowl hunting zones.
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, and R. Bruce Scott, commissioner, represented the division.
In response to questions by Senator Givens, Mr. Scott stated that the requirement that the cabinet shall consult with U.S. EPA’s regional administrator before approval of innovative technology was not a new requirement, but was inadvertently omitted from Section 10(3) of this administrative regulation during the previous revision. U.S. EPA had federal authority to approve or disapprove of the innovative technology after the cabinet’s consultation.
401 KAR 5:060. KPDES application requirements.
Department for Natural Resources: Division of Mine Reclamation and Enforcement: Surface Effect of Noncoal Mining
405 KAR 5:032. Permit requirements. James McKenzie, assistant director, and Michael Mullins, regulation coordinator, represented the division.
In response to a question by Co-Chair Bell, Mr. McKenzie stated that this administrative regulation did not relate to stockpiles and silos. This administrative regulation revised the format for submission of maps.
A motion was made and seconded to approve the following amendments: to amend Sections 8, 21, 26, and 27 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 6:040. Kentucky State Penitentiary. Amy Barker, assistant general counsel, represented the department.
A motion was made and seconded to approve the following amendments: to amend Section 1 and policy KSP 13-02-13 to correct the amount a nonindigent inmate shall pay for replacement eye glasses from the original charge of $15.50 to the actual cost charged by the supplier. Without objection, and with agreement of the agency, the amendments were approved.
EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Board of Education: Department of Education: Office of Chief State School Officer
701 KAR 5:110. Use of local monies to reduce unmet technology need. Susan Allred, associate commissioner; Kevin Brown, general counsel; and David Couch, associate commissioner, represented the department.
In response to a question by Representative Damron, Ms. Allred stated that there was not a request for a public hearing; therefore, the department canceled the public hearing. The department received written comments from the public during the public comment period. The comments concerned changing “strive” to “shall.” Additionally, there was a comment that this administrative regulation was an unfunded mandate. This administrative regulation was about innovation and trying not to limit alternative options. Training was necessary to ensure a quality program. Mr. Brown stated that this was the second version of this administrative regulation and was developed after stakeholder input. Mr. Couch stated that the department made changes in response to public comments. This version was to improve the existing program.
In response to a question by Co-Chair Bowen, Mr. Brown stated that it was not unusual for the department not to get many public comments during the public comment period because the department had public hearings at the board level prior to filing an administrative regulation with LRC.
In response to a question by Senator Givens, Mr. Couch stated that this administrative regulation provided for leveraging from all funding sources in order to cover costs for unmet technology needs. This provision was in place since the 1990s.
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; (2) to amend Section 3 to: (a) correct the name of the 2013 - 2018 KETS Master Plan; and (b) specify that the department shall assist districts in selecting equipment, software, and services which will reduce the unmet technology need; and (3) to amend Sections 4 and 5 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Alternative Education Programs
704 KAR 19:002. Alternative Education Programs.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct citations; (2) to amend Section 1 to: (a) define “child with a disability” and “individual education program” consistent with other administrative regulations; and (b) clarify in the definition of “involuntary placement” that it is not made at the request of the parent or emancipated student; (3) to amend Section 2 to clarify the role of districts for alternative education programs; and (4) to amend Sections 1 through 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.
PUBLIC PROTECTION CABINET: Department of Housing, Buildings and Construction: Division of Fire Prevention: Standards of Safety
815 KAR 10:060. Kentucky standards of safety. Dawn Bellis, general counsel, and William Swope, state fire marshal, represented the division.
CABINET FOR HEALTH AND FAMILY SERVICES: Office of Health Policy: Certificate of Need
900 KAR 6:075 & E. Certificate of Need nonsubstantive review. Diona Mullins, policy advisor, and Chandra Venettozzi, health data administrator, represented the cabinet.
In response to a question by Co-Chair Bowen, Ms. Mullins stated that no one appeared at the public hearing, but written comments were received during the public comment period.
In response to questions by Senator Givens, Ms. Mullins stated that the statute changed in the 2012 Regular Session of the General Assembly. The statutory revision required the criteria that were established in this administrative regulation.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph and Section 1 to correct statutory citations; and (2) to amend Sections 1 and 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 Inspector General : Division of Health Care: Health Services and Facilities
902 KAR 20:420 & E. Pain management facilities. Stephanie Brammer-Barnes, policy analyst; Mary Begley, inspector general; and Stephanie Hold, assistant director, represented the division. John Daniels, owner, and Derek Humfleet, attorney, represented Central Kentucky Wellness Center, and appeared but waived commenting on these administrative regulations. Lloyd Vest, general counsel, Kentucky Board of Medical Licensure, appeared to answer questions related to these administrative regulations and those administrative regulations promulgated by the board, as the division’s administrative regulations and those of the board closely relate.
Representative Lee stated that he was concerned about negative unintended consequences that may result from these administrative regulations. Those patients who legitimately need long-term pain management may not get the treatment they need if there are not enough certified physicians who can comply with pain management facility ownership requirements.
In response to a question by Senator Givens, Ms. Begley stated that the division was currently regulating eight (8) nonphysician-owned pain management facilities, which were spread fairly equally throughout the state, rather than being concentrated in one area. There may be other such facilities operating, but they would be operating illegally because they did not register before the deadline established by the law. If the division encountered these illegally operating facilities, it referred them to the cabinet’s Office of Legal Services for closure action.
Co-Chair Bell stated that House Bill 1 from the 2012 Special Session of the General Assembly had dramatically reduced drug abuse; however, there had also been negative unintended consequences. Some legitimate pain management needs were going unmet. In some cases, heroin was becoming more prevalently used by patients who could no longer get access to legitimate medications for their needs. Ms. Begley stated that the eight (8) facilities regulated by the division were not the only pain management facilities in the state. There were still facilities that were physician owned and therefore were regulated by the Kentucky Board of Medical Licensure, not the division. Mr. Vest stated that the Kentucky Board of Medical Licensure strove to maintain an adequate number of physicians able to serve long-term pain management patients. He added that House Bill 1 from the 2012 Special Session of the General Assembly explicitly required that pain management facilities be wholly physician owned unless the facility met the limited requirements to be nonphysician owned.
In response to a question by Representative Lee, Mr. Vest stated that KBML would have jurisdiction over a pain management facility that was wholly physician owned. Ms. Begley stated that if a facility was not physician owned, the division standards were different from those of the Kentucky Board of Medical Licensure for wholly physician-owned facilities. KRS 218A.175 required that a physician who wholly owned a pain management facility was required to have certification in pain management. Mr. Vest stated that this was another portion of House Bill 1 from the 2012 Special Session of the General Assembly that needed to be amended during the 2013 Regular Session of the General Assembly in order to achieve parity among related administrative regulations.
In response to a question by Co-Chair Bowen, Mr. Vest stated that he was unaware of a legitimate pain management facility that closed as a result of House Bill 1 from the 2012 Special Session of the General Assembly.
A motion was made and seconded at the December 17, 2012 meeting of the Subcommittee to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph 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; and (3) to amend Sections 1 through 12 to: (a) comply with the drafting and formatting requirements of KRS Chapter 13A; and (b) delete provisions that restated statutory provisions. Without objection, and with agreement of the agency, the amendments were approved.
Division of Audits and Investigations: Controlled Substances
902 KAR 55:110 & E. Monitoring system for prescription controlled substances.
A motion was made and seconded at the December 17, 2012 meeting of the Subcommittee to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 2, 7, 8, 10, and 11 to comply with the drafting requirements of KRS Chapter 13A; and (2) to amend Section 10 to clarify that a practitioner or pharmacist who obtains KASPER data or a report and who in good faith believes that any person, including a patient, has violated the law in attempting to obtain a prescription for a controlled substance is authorized to report the suspected improper or illegal use of a controlled substance to law enforcement or the appropriate licensing board. Without objection, and with agreement of the agency, the amendments were approved.
Department for Medicaid Services: Division of Healthcare Facilities Management: Psychiatric Residential Treatment Facility Services and Reimbursement
907 KAR 9:005 & E. Level I and II psychiatric residential treatment facility service and coverage policies. Dr. Stephen Hall, commissioner, and Stuart Owen, regulation coordinator, represented the division.
In response to a question by Representative Lee, Mr. Owen stated that the amendment proposed by Representative Lee provided a per diem payment for each eligible child. For the purposes of calculating occupancy, the amendment would allow payment of the per diem in some cases in which the child may be physically absent, for example, if the child had a therapeutic pass or was attempting to be discharged from a facility. Sometimes a child may be in the process of being discharged and need to return soon because of distress with the discharge process. This administrative regulation raised the reimbursement amount for a hospital bed day. Fifty (50) percent of the rate would be paid if occupancy was at least eighty-five (85) percent. Representative Lee added that managed care organizations (MCOs) were not obligated to pay for more days than previously required pursuant to this administrative regulation.
In response to a question by Senator Givens, Mr. Owen stated that it was not possible to estimate a fiscal impact because this was a new level of care category. Utilization was usually covered by managed care. MCOs were involved in conversations prior to the newest version of this administrative regulation and were reluctant to pay for empty beds, but the therapeutic pass was a useful program. Dr. Hall stated that in cases of a therapeutic pass or attempted discharge, the child’s belongings remained in the child’s bedroom at the facility. This process assisted with transitioning children and preventing distress if a child needed to return to the facility.
Co-Chair Bell stated that children often had to be readmitted after an attempt to discharge. There were several MCOs in his district that had outstanding payments that needed to be reconciled.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to: (a) revise the definition of “active treatment” to delete “psychiatrist” from the list of individuals who can provide treatment as psychiatrists are already included in the listing under qualified mental health professionals; (b) define “mental health associate” consistent with the definition in 902 KAR 20:320; and (c) clarify the definitions of “review agency” and “telemedicine”; (2) to amend Section 8 to: (a) require, rather than authorize, the department to cover bed reserve days and therapeutic pass days; (b) require, rather than authorize, the department to allow a recipient to exceed the limit for those days if the department determines it is in the best interest of the recipient; (c) delete the requirement that the psychiatric residential treatment facility have an occupancy rate of at least fifty (50) percent; and (d) specify that an absence due to: 1. an admission to a hospital type facility shall count as an absence for census purposes; and 2. a therapeutic pass day shall not count as an absence for census purposes; (3) to amend Sections 1 through 4, 6, and 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.
907 KAR 9:010 & E. Reimbursement for Level I and II psychiatric residential treatment facility services.
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; (2) to amend Section 6 to: (a) require that the department’s reimbursement for a bed reserve day for a recipient not enrolled in a managed care organization shall be: 1. Seventy-five percent, rather than fifty percent, of the established rate if the facility’s occupancy percent is at least eighty-five percent, rather than ninety-five percent; and 2. Fifty percent, rather than twenty-five percent, if the occupancy percent is less than eighty-five percent, rather than between fifty (50) percent and ninety-five (95) percent; (b) require that the department’s reimbursement for a therapeutic pass day for a recipient not enrolled in a managed care organization shall be: 1. 100% of the rate if the facility’s occupancy rate is at least fifty (50) percent; or 2. Fifty (50) percent if the occupancy percent is below fifty (50) percent; and (c) specify that an absence due to: 1. an admission to a hospital-type facility shall count as an absence for census purposes; and 2. a therapeutic pass day shall not count as an absence for census purposes; and (3) to amend Sections 2, 3, 8, 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.
Department for Behavioral Health, Developmental and Intellectual Disabilities: Division for Behavioral Health: Substance Abuse
908 KAR 1:400. Procedures for substance abuse prevention. Ijeoma Eneje, regulation coordinator, and Connie Smith, branch manager, represented the division.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 2, 4, 5, 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.
Department for Community Based Services: Division of Family Support: K-Tap, Kentucky Works, Welfare to Work, State Supplementation
921 KAR 2:055. Hearings and appeals. Virginia Carrington, branch manager, and Elizabeth Caywood, policy analyst, represented the division.
921 KAR 2:060 Delegation of power for oaths and affirmations.
Food Stamp Program
921 KAR 3:030. Application process.
921 KAR 3:042. Supplemental Nutritional Assistance Program Employment and Training Program.
921 KAR 3:050. Claims and additional administrative provisions.
921 KAR 3:060. Administrative disqualification hearings and penalties.
Division of Child Care: Day Care
922 KAR 2:090. Child-care center licensure. Elizabeth Caywood, policy analyst, and MaryBeth Jackson, director, represented the division.
Co-Chair Bowen stated that it was surprising that the guidelines were not previously a part of these administrative regulations.
A motion was made and seconded to approve the following amendments: to amend the RELATES TO paragraph and Sections 1, 4, 5, 6, and 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.
922 KAR 2:100. Certification of family child-care homes.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to delete language that conflicts with the authorizing statute; (2) to amend Section 20 to correct an edition date; and (3) to amend the RELATES TO paragraph and Sections 1, 2, 11 through 14, and 18 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
922 KAR 2:110. Child-care center provider requirements.
A motion was made and seconded to approve the following amendments: to amend the RELATES TO paragraph and Sections 1, 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.
922 KAR 2:120. Child-care center health and safety standards.
A motion was made and seconded to approve the following amendments: (1) to amend Section 12 for clarification; and (2) to amend the RELATES TO paragraph and Sections 1 through 5, 7, 9, and 12 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
922 KAR 2:180. Requirements for registered child care providers in the Child Care Assistance Program.
A motion was made and seconded to approve the following amendments: to amend the RELATES TO paragraph and Sections 1, 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.
922 KAR 2:190. Civil penalties.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 2, 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.
The following administrative regulations were deferred to the February 11, 2013, meeting of the Subcommittee:
KENTUCKY HIGHER EDUCATION ASSISTANCE AUTHORITY: Division of Student and Administrative Services: Teacher Scholarship Loan Program
11 KAR 8:030. Teacher scholarships.
GENERAL GOVERNMENT CABINET: Board of Licensure for Massage Therapy: Board
201 KAR 42:070. Endorsement.
KENTUCKY COMMUNITY AND TECHNICAL COLLEGE SYSTEM: Board of Emergency Medical Services: Board
202 KAR 7:520. Allocation of block grant funding assistance for emergency medical services.
ENERGY AND ENVIRONMENT CABINET: Department for Environmental Protection: Division of Water: Water Quality Standards
401 KAR 10:001. Definitions for 401 KAR Chapter 10.
401 KAR 10:026. Designation of uses of surface waters.
401 KAR 10:030. Antidegradation policy implementation methodology.
401 KAR 10:031. Surface water standards.
TRANSPORTATION CABINET: Office of the Secretary: Department of Aviation: Airport Zoning Commission
602 KAR 50:030. Jurisdiction of the Kentucky Airport Zoning Commission.
602 KAR 50:050. Airport zoning map.
Department of Highways: Traffic
603 KAR 5:050. Uniform traffic control devices.
The Subcommittee adjourned at 3:35 p.m. until February 11, 2013 at 1 p.m.