Call to Order and Roll Call
The April meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, April 9, 2013, 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: Senators Joe Bowen, Sara Beth Gregory, Ernie Harris, and Perry B. Clark, and Representatives Johnny Bell, Robert Damron, Tommy Turner, and Jimmie Lee.
Guests: Katie Stine, Alice Forgy Kerr, Senators; Jim Gooch, Arnold Simpson, Representatives; Beau Barnes, Kentucky Teachers' Retirement System; David Gordon, Mark Johnson, Kendy Parks, Melissa Russell, Department of Revenue; Mark Brengelman, Board of Physical Therapy; Ryan Halloran, Cheryl Turner, Board of Licensure for Massage Therapy; Shelli Deskins, Ryan Halloran, Applied Behavior Analysis Board; Misty Dugger Judy, Deborah Van Horn, Kentucky Historical Society; Ron Brooks, Margaret Everson, and Benjy Kinman, Kentucky Fish and Wildlife Resources; Bruce Scott, Randy Payne, Department for Environmental Protection; Amy Barker, Department of Corrections; LaDonna Koebel, LaShana Harris, Department of Juvenile Justice; Catherine Burgin, Ann DAngelo, Rick Taylor, Transportation Cabinet; Susan Barkley, Kevin Brown, Amy Peabody, Department of Education; Dawn Bellis, Ann Ramser, Department of Housing, Buildings and Construction; Eric Friedlander, Dionna Mullins, Cabinet for Health and Family Services; Teri Blanton, Carey Henson, Jim Porter, Kentuckians for the Commonwealth; Lane Boudman, Alex Desha, Mary K. Miller, Sierra Club; Cara Cooper, Kentucky Student Environmental Coalition; Rusty Cress, Kentucky Association of Manufacturer and Kentucky League of Cities, Chad Harpole, Amelia Kirby, Michael Mills, Tarence Ray, Douglas Swan, Rita Swan, Brenda Valenza, Sethea Valenza, Private Citizen; Marie Alagia Cull, Marian Hayden, John Muller, Care Spring; Mike Baker, Eric Gillian, Denise D. Hundley, Khaldon Jundi, MD, Robert Long, Baptist Life Commission; Saint Joseph East; Gary Moore, Boone County; and Steve Pendrey, Campbell County.
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:
FINANCE AND ADMINISTRATION CABINET: Kentucky Teachers' Retirement System: General Rules
102 KAR 1:070. Application for retirement. Beau Barnes, deputy executive secretary and general counsel, represented the system.
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 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.
102 KAR 1:320. Qualified domestic relations orders.
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; and (3) to amend the STATUTORY AUTHORITY paragraph and Sections 3, 5, 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.
102 KAR 1:350. Full actuarial cost purchase.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph for consistency with formatting among administrative regulations; 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: Forms
103 KAR 3:010. General Administrative Forms Manual. David Gordon, executive director, property taxes; Mark Johnson, tax policy consultant, corporate taxes; and Kendy Parks, internal policy analyst, represented the department.
103 KAR 3:030. Property and Severance Forms Manual.
A motion was made and seconded to approve the following amendments: to amend Sections 1 and 3 to insert two (2) tax forms that were inadvertently omitted. Without objection, and with agreement of the agency, the amendments were approved.
103 KAR 3:040 & E. Income Tax Forms Manual.
GENERAL GOVERNMENT CABINET: Board of Physical Therapy: Board
201 KAR 22:020. Eligibility and credentialing procedure. Mark Brengelman, board counsel, represented the board.
A motion was made and seconded to approve the following amendment: to amend Section 7(5) to specify the type of information that is required. Without objection, and with agreement of the agency, the amendment was approved.
201 KAR 22:035. A credential holder's change of name, employment, or address.
A motion was made and seconded to approve the following amendments: (1) to amend the TITLE to clearly reflect the content of the administrative regulation; 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.
Board of Licensure for Massage Therapy: Board
201 KAR 42:020. Fees. Ryan Halloran, assistant attorney general, and Cheryl Turner, vice chair, represented the board.
A motion was made and seconded to approve the following amendments: to amend Section 5 and the material incorporated by reference to correct citations. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 42:035. Application process, exam, and curriculum requirements.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add statutory citations; (2) to amend Section 3: (a) for clarity; (b) to delete provisions that repeated the statute in violation of KRS 13A.120(2); and (c) to delete a provision that could have allowed additional examinations to be approved by the board outside the regulatory review process in violation of KRS 13A.130(1); and (3) to amend Section 5 and the material incorporated by reference to correct citations. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 42:040. Renewal.
In response to a question by Senator Harris, Ms. Turner stated that this administrative regulation was amended to clarify that the ethics credits were a required part of the continuing education requirements.
201 KAR 42:070. Endorsement.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correct a typographical error; and (2) to amend Section 2 for clarity. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 42:080. Programs of massage therapy instruction.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to include an additional relevant citation; (2) to amend Sections 1, 4, and 5 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (3) to amend the material incorporated by reference to conform to the administrative regulation. Without objection, and with agreement of the agency, the amendments were approved.
Kentucky Applied Behavior Analysis Licensing Board: Board
201 KAR 43:030. Fees. Dr. Shelli Deskins, psychologist and chair, and Ryan Halloran, assistant attorney general, represented the board.
201 KAR 43:060. Complaint and disciplinary process.
201 KAR 43:070. Supervisees.
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 Section 2 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 43:080. Renewals.
A motion was made and seconded to approve the following amendments: (1) to amend the material incorporated by reference to provide for licensure reinstatement; and (2) to amend Sections 1, 4, and 5 to correct form titles and an edition date. Without objection, and with agreement of the agency, the amendments were approved.
TOURISM, ARTS AND HERITAGE CABINET: Kentucky Historical Society: Society
300 KAR 5:010. Museum unclaimed property. Misty Dugger Judy, staff attorney, and Deborah Van Horn, registrar, represented the Kentucky Historical Society.
Department of Fish and Wildlife Resources: Fish
301 KAR 1:410. Taking of fish by nontraditional fishing methods. Ron Brooks, fisheries director; Margaret Everson, assistant attorney general; and Benjy Kinman, deputy commissioner, represented the department.
Water Patrol
301 KAR 6:020. Boating safety equipment.
ENERGY AND ENVIRONMENT CABINET: Department for Environmental Protection: Division of Water: Water Quality Standards
401 KAR 10:031. Surface water standards. Randy Payne, water quality branch, and Bruce Scott, commissioner, represented the division. Representative Jim Gooch, Jr. appeared as a legislative quest regarding this administrative regulation. Rusty Cress, Kentucky League of Cities and Kentucky Association of Manufacturers, and Chad Harpole, vice president, Kentucky Chamber of Commerce, appeared in support of this administrative regulation. Lane Boldman, Sierra Club; Cara Cooper, state organizer, Kentucky Student Environmental Coalition; Carey Henson, Kentuckians for the Commonwealth; Amelia Kirby, citizen; Jim Porter, Kentuckians for the Commonwealth; Tarence Ray, citizen; and Ted Withrow, citizen and member of Kentuckians for the Commonwealth, appeared in opposition to this administrative regulation.
In response to a question by Representative Lee, Mr. Scott stated that all concerns regarding public comments and adequate public consideration of the agency amendment to this administrative regulation had been addressed. The division issued public notice, received comments, conducted two (2) meetings with stakeholders, prepared an additional Statement of Consideration pursuant to comments received, amended the division’s technical document defending the proposed selenium limits, deferred this administrative regulation an additional month to provide more time for meetings, and discussed the issues with U.S. EPA. Mr. Scott stated that the division would not allow a pollutant standard that did not adequately protect water quality.
In response to questions by Representative Damron, Mr. Scott stated that there were numerous sources of selenium pollution beyond coal mining activities. The division did not expect rock removal from waterways for agricultural or noncommercial purposes on private property to be a source of selenium contamination.
Representative Damron stated that the cabinet seemed to be relaxing requirements for commercial rock quarries while at the same time becoming more stringent toward farmers, who were not harming downstream waterways.
Representative Gooch stated that Kentucky was a diverse state ecologically, and that diversity should be taken into consideration for the purposes of establishing environmental policy. In response, Mr. Scott stated that the Clean Water Act required each state to establish water quality standards and U.S. EPA exercised oversight of each state’s established standards. Kentucky used U.S. EPA’s guidance documents and oversight as part of its determination of standards. The division was not relaxing the selenium standard, but was establishing a different method for testing for selenium and establishing a standard related to that method. U.S. EPA still had to approve or disapprove Kentucky’s selenium standard after the administrative regulation became effective. Taking into consideration discussions with U.S. EPA, the division had reason to believe that the standard proposed by the division in the agency amendment would be accepted by U.S. EPA.
Mr. Harpole stated that the Kentucky Chamber of Commerce supported this administrative regulation and the proposed agency amendment thereto.
Mr. Cress stated that both the Kentucky League of Cities and the Kentucky Association of Manufacturers supported a standard based on sound science and economic feasibility. The proposed standard used state-specific data, which was key because Kentucky’s needs differ from other states.
In response to a question by Senator Clark, Mr. Scott stated that some research studies were from 2004. The selenium standard in place prior to this proposed administrative regulation was based on research studies from 1990, the results of which had been vacated by the federal courts. During the KRS Chapter 13A-required public hearing and public comment period, the only concerns expressed regarding the division’s initial proposal to delete the acute selenium limit completely came from U.S. EPA, not from commenters opposed to the agency amendments.
In response to questions by Co-Chair Bell, Mr. Cress stated that he was not a scientist or biologist, but the Kentucky League of Cities did have specialists who studied the scientific research regarding the selenium limit. The method of testing was what was different, and comparing the limits was not equivalent because of the method differences. Mr. Harpole stated that the Ohio River Valley Water Sanitation Commission, ORSANCO, had deleted the acute selenium limit altogether, and there did not seem to be a selenium problem in the Ohio River basin since that standard was deleted.
Senator Bowen noted that Kentucky was authorized by the Clean Water Act to establish state-specific standards, with oversight and ultimate approval or disapproval by U.S. EPA.
Representative Turner stated that the science was very complicated and independent, up-to-date studies were necessary to make the selenium determination.
Mr. Withrow stated that there were trend stations for water quality throughout Kentucky. Peter’s Creek in Pike County was a dead waterway, devoid of aquatic life, and trend reports indicated there had been exceedances of selenium limits. The proposed selenium limit in the agency amendment was unenforceable. If a fish could be found to test, and results showed the selenium limit had been violated, who would be cited because there were numerous coal activities from different companies in that area?
Ms. Henson, field biologist and ecologist for Kentuckians for the Commonwealth, stated that attendees of the public meetings that took place after the initial deferral of this administrative regulation at the February Subcommittee meeting were told that the meeting was for select stakeholders only. A member of the press was told at that meeting that the meeting was not open to the public; however, after the meeting the division characterized the meeting as a public meeting. The selenium standards would relax water quality standards in Kentucky. The division’s defense of the standards was based on research that the division skewed in order to support the proposal in the agency amendment. Other portions of the research that did not support the agency proposal were dismissed by the division as unsound science. Testing concentrations of selenium in the water column was a better method than testing fish tissue. The safety of those eating fish and recreating in Kentucky’s waterways was of prime importance.
Mr. Porter stated that Kentuckians for the Commonwealth did not support the agency amendment, which would weaken the selenium limit. The limit was based on unsound science and was practicably unenforceable.
Mr. Ray stated that his question regarding where the waterways referenced by the division were located was not addressed by the division in its response to comments. Mr. Ray was employed by a nonprofit watershed protection group. It was expensive to treat water that was contaminated with selenium. It was bad economic policy and would affect public safety and tourism. In response to Mr. Ray’s question, Mr. Scott stated that the division did not find any selenium violations for exceedance of the limit. Mr. Scott noted that this administrative regulation did not relate to health risks from selenium, which were addressed in drinking water and fish consumption administrative regulations, but this administrative regulation addressed aquatic sustainability. The division believed that this administrative regulation was protective of the aquatic environment.
Ms. Boldman stated that the division did not fully respond to Sierra Club’s concerns regarding the proposed selenium method and limit. The division “cherry picked” research studies that supported the proposed agency amendment. Public involvement was truncated, and the proposed selenium method and limit were not protective of water quality. Selenium is a long-term problem because it bioaccumulated in aquatic species. Deferral to the May meeting of the Subcommittee was requested. The division was encouraged to drop the proposal and return to the selenium method and limit that was in place prior to the initial amendment to this administrative regulation. Coal companies were responsible to meet the obligations of the Clean Water Act.
Ms. Kirby stated that her family was dependent on the coal industry; however, she was also concerned about water quality. The selenium limit was unsafe and unenforceable. It was unnecessary to risk the health of those who live along affected waterways.
Ms. Cooper stated that the Kentucky Student Environmental Coalition was concerned that weakening of the selenium limit was a risk to future Kentuckians. Kentucky was establishing a state-specific standard, but did that mean that Kentucky was somehow better able to address the problem of selenium than other states?
In response to a question by Senator Bowen, Mr. Withrow stated that U.S. EPA was not directly establishing this standard; this standard was being proposed by the division. Ultimately, U.S. EPA had final approval or disapproval of the limit; however, Mr. Withrow had been in litigation with U.S. EPA for the past two (2) years. U.S. EPA had received petitions to remove the division’s authority to enforce the Clean Water Act. Ms. Henson stated that the division was the proponent of the agency amendment, and U.S. EPA’s oversight was somewhat ancillary.
Mr. Withrow encouraged U.S. EPA disapproval of the selenium standard because the supporting research was “cherry picked.”
Representative Gooch stated that the discussion thus far seemed to focus on coal activities, but there were other dischargers of selenium. The discussion kept referencing health implications, but other administrative regulations were in place to protect drinking water, fish consumption, and recreational use of water from selenium contamination.
Ms. Boldman stated that the division’s research studies on selenium were not as scientifically sound as those recommended by the Sierra Club. The more protective standard should be maintained until U.S. EPA promulgates new guidance regarding selenium limits. The division should at least aim to do no harm until the guidance was available. In response to Ms. Boldman, Mr. Payne stated that the portions of research studies that were excluded by the division were dismissed for sound scientific reasons.
In response to a question by Representative Turner, Mr. Scott stated that most streams that were identified as “dead streams” were impaired because of sediment or nutrient overload. It was not possible to make the determination for certain without research; however, it was unlikely that selenium was the cause of the impairment.
Representative Turner made a motion to defer consideration of this administrative regulation until independent, scientific data was provided. Co-Chair Bell asked if the division would agree to deferral. The division declined the request to defer. The Subcommittee did not have the authority to defer consideration of the administrative regulation without the division’s agreement; therefore, the motion did not proceed. Representative Turner stated that he was disappointed that the division would not agree to defer such a crucial issue.
In response to a question from Representative Damron, subcommittee staff explained the contents of the agency amendment.
Representative Lee stated that the subcommittee’s main concern was if this administrative regulation conformed to the authorizing statute and KRS Chapter 13A. It was inappropriate for this subcommittee to vote on the selenium limit itself. If the division was reluctant to establish selenium limits without action of the General Assembly, the division should get a legislative sponsor to propose the limits during the 2014 Regular Session of the General Assembly.
A motion was made and seconded to approve the following amendments: to amend limits related to selenium. A roll call vote was taken. With five (5) yes votes, one (1) no vote, and two (2) members passing, the amendments were approved.
JUSTICE AND PUBLIC SAFETY CABINET: Department of Corrections: Kentucky Crime Commission
500 KAR 5:006. Repeal of 500 KAR 5:005 and 500 KAR 5:015. Amy Barker, assistant general counsel, represented the department.
Department of Juvenile Justice: Child Welfare
505 KAR 1:160. Department of Juvenile Justice Policies and Procedures: treatment program for juvenile sexual offenders. LaShana Harris, assistant director, and LaDonna Koebel, 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 clarify provisions and to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
TRANSPORTATION CABINET: Department of Vehicle Regulation: Motor Vehicle Tax
601 KAR 9:135. Apportioned registration. Catherine Burgin, administrative section supervisor; Ann DAngelo, assistant general counsel; and Rick Taylor, deputy commissioner, represented the department.
EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Board of Education: Department of Education: School Administration and Finance
702 KAR 3:130. Internal accounting. Susan Barkley, assistant director; Kevin Brown, general counsel; and Amy Peabody, staff attorney, represented the department.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2 to specify that the August 2007 edition of the Redbook shall be used until June 30, 2013 and the March 2013 edition shall be used beginning July 1, 2013; (2) to amend Section 3 to require that: (a) a report be made to the district board of education following the annual audit by a CPA of the activity funds internal accounts; and (b) a copy of the school audit report shall be available in both the school principal’s office and the superintendent’s office; (3) to amend Section 4 to change the edition date of the material incorporated by reference; and (4) to amend the material incorporated by reference and Section 1 to comply with the drafting and formatting requirements of KRS Chapter 13A and for clarity. 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 4:027. Reporting incidents involving personal injury or death. Dawn M. Bellis, general counsel, and Ann Ramser, staff attorney, represented the division.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph 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; and (3) to amend Section 2(1) to comply with the drafting 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: State Health Plan
900 KAR 5:020. State Health Plan for facilities and services. Eric Friedlander, acting executive director, Office of Health Policy, and Diona Mullins, policy advisor, represented the cabinet. Senator Alice Forgy Kerr, Senator Katie Stine, and Robert Long, president and CEO, Baptist Life Communities, appeared in opposition to proposed committee amendment #3. Mariam Hayden, attorney, Carespring Healthcare; Garry Moore, Boone County Judge Executive; John Muller, vice president of operations, Carespring Healthcare; Steve Pendrey, Campbell County Judge Executive; and Representative Arnold Simpson appeared in support of proposed committee amendment #3.
Senator Stine stated that proposed committee amendment #3 was not initiated by the agency, but by specific interested stakeholders. Litigation about the matter was ongoing, and, while the matter lost on appeal, it may go to the Kentucky Supreme Court for further consideration. The proposed committee amendment was adverse to Campbell County because it weakened the county’s only hospital. The mayor of Alexandria, the Fiscal Court members, and Baptist Nursing Homes in the area opposed moving hospital beds from Campbell County to Boone County.
Representative Simpson stated that he, as a resident of Kenton County, advocated for proposed committee amendment #3. Kenton, Campbell, and Boone Counties had worked hard to create a synergistic district. Boone County was growing significantly. The decision should be based on how best to serve citizens, not on archaic area distinctions. The proposed committee amendment did not weaken the CON process, but revised the State Health Plan.
Mr. Muller stated that proposed committee amendment #3 should be passed because Northern Kentucky Area Development District would still be subject to the CON process. Proposed committee amendment #3 just allowed the district to pursue the CON process.
Judge Executive Gary Moore stated that he had been judge executive for Boone County for four (4) terms so far. Boone County was experiencing significant population growth and was severely in need of infrastructure to support the growing population. Long-term care facilities for seniors constituted a major area where infrastructure improvement was needed.
Judge Executive Pendrey stated that he was willing to transfer hospital beds from Campbell County to Boone County because he was confident Campbell County would still be adequately provided for.
In response to questions by Representative Lee, Mr. Muller stated that a new 143-bed nursing facility would be built in Campbell County, regardless of the outcome of proposed committee amendment #3. The construction had already begun. Mr. Friedlander stated that, under the State Health Plan, Boone County would not currently demonstrate a need for the beds; however, that would be true for all of Kentucky. Mr. Muller noted that the beds already existed and had not been used since the 2006 decertification of another facility. Other counties had filed CON requests to transfer beds. Carespring did not intend to sell the beds it had acquired, which would mean 286 potential beds for Northern Kentucky.
Judge Executive Moore stated that transferring the existing beds to a new facility would be more efficient because the new facility would have superior technology. Even with the additional beds, Boone County would still show a need once population growth continued as expected. Carespring did not receive any government financial support.
In response to a question by Co-Chair Harris, Mr. Friedlander stated that the current State Health Plan was based on county, rather than area development district, boundaries. The proposed committee amendment #3 would change those boundary restrictions for the two (2) areas with nursing facilities with more than 250 hospital beds: northern Kentucky and Jefferson County.
In response to questions by Senator Bowen, Mr. Muller stated that these were existing beds, and Carespring would not be circumventing the CON process. Other transfers of beds had been allowed.
In response to a question by Co-Chair Bell, Mr. Muller stated that the intention was to spend $50 million to build two (2) needed care facilities.
In response to questions by Senator Kerr, Judge Executive Moore stated that care facilities needed to be located conveniently for families. Judge Executive Pendrey stated that Campbell County would not be left disadvantaged if the beds were moved to Boone County.
Senator Kerr stated that approving proposed committee amendment #3 would set a terrible precedent in attempts to transfer other beds across counties.
Representative Lee stated that the purpose of the CON process was to ensure adequate care facilities in all areas of the state. If proposed committee amendment #3 passed, similar transfers all across the state would be expected.
In response to a question by Representative Damron, Mr. Friedlander stated that the cabinet did not officially support or oppose proposed committee amendment #3. The cabinet was neutral because litigation about the matter was still ongoing. If it was the will of the Subcommittee to pass proposed committee amendment #3, then the cabinet would not oppose it. Senator Stine stated that it was inappropriate to intervene in litigation and make special exceptions in administrative regulations. Ms. Hayden stated that approving proposed committee amendment #3 was not a solution to the ongoing litigation. Even if proposed committee amendment #3 passed, there would be other legal problems with transferring beds from Campbell to Boone County. This was not a subversion of the CON process, and in fact put the matter back under full review.
In response to a question by Co-Chair Bell, Ms. Hayden stated that, even if the proposed committee amendment was approved, there would still have to be a public hearing, which would last several days, before the bed transfer could actually take place. Proposed committee amendment #3 did not extend or expand the number of beds; it moved existing beds from Campbell to Boone County.
Representative Lee stated that proposed committee amendment #3 was strategically crafted to avoid competition against Carespring.
Ms. Hayden stated that the proposed committee amendment #3 addressed large care facilities of at least 250 beds. Carespring had made a business decision to buy beds that were for sale from a decertified facility.
Representative Lee stated that Carespring did make a business decision to buy beds in Campbell County, despite the moratorium on building new beds. The process would allow Carespring to correct a bad business decision. If an exception was made, it should be available to all interested facilities, not just Carespring. Mr. Muller stated that there was no good mechanism currently for transferring beds across counties.
Mr. Long stated that he was opposed to proposed committee amendment #3 because the exception would be unfair to other facilities. If Carespring had applied for a CON in Boone County, the facility would not have been approved for the 143 beds. The proposed committee amendment #3 gave unfair advantage to Carespring. Feasibility studies were needed. Quality of care as well as quantity should be addressed. The CON process is complicated, but it has worked for Kentucky. An exemption now would create turmoil in future CON processes.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2 to change the edition date of the material incorporated by reference; and (2) to amend the State Health Plan incorporated by reference to: (a) comply with the drafting and formatting requirements of KRS Chapter 13A; (b) use terms consistently throughout the document; (c) amend provisions relating to special care neonatal beds to provide that applications proposing to convert up to fifty (50) percent of existing Level II special neonatal beds to Level III special neonatal beds shall be consistent with the state health plan if the hospital: 1. is licensed for a minimum of sixteen (16) neonatal Level II beds; 2. has a minimum of 1,500 Medicaid neonatal Level II patient days per year; 3. has a gestational age lower limit of twenty-seven (27) weeks; and (d) has a full-time perinatologist on staff; and (d)1. to change the hospital reporting requirements to require a review of the hospital’s data as part of the annual joint review of patient outcomes in collaboration with the hospital’s affiliated provider of Level IV services, rather than an agreement to submit a data report from the Vermont Oxford Network on Level II and Level III outcomes; 2. require a hospital to participate in the Vermont Oxford Network, including the Kentucky State VON Report; and 3. establish requirements that apply after the two (2) year trial for hospitals proposing to provide comprehensive cardiac catheterization services. Without objection, and with agreement of the agency, the amendments were approved.
A motion was made and seconded to approve the following amendment: (1) to amend Section 2 to change the edition date of the material incorporated by reference; and (2) to amend the State Health Plan incorporated by reference to amend provisions relating to nursing facility beds to provide that notwithstanding the established criteria, an application submitted to transfer or relocate existing certificate of need approved nursing facility beds shall be consistent with the state health plan if the: (a) selling or transferring entity has a certificate of need or licensed nursing facility bed inventory of at least 250 beds; (b) proposed relocation is within the same area development district; and (c) selling or transferring entity does not propose to sell or transfer more than fifty (50) percent of its certificate of need approved or licensed nursing facility beds. A roll call vote was taken. With three (3) yes votes, three (3) no votes, and one (1) member passing, the amendments were not approved. Representative Damron stated that he had originally intended to vote for proposed committee amendment #3; however, the cabinet did not seem actively supportive and Representative Damron trusted Representative Lee’s position on such matters. Therefore, he was abstaining from the vote on proposed committee amendment #3.
The following administrative regulations were deferred to the May 14, 2013, meeting of the Subcommittee:
GOVERNOR'S OFFICE: Kentucky Department of Veterans' Affairs: Office of Kentucky Veterans' Centers: State Veterans' Nursing Homes
17 KAR 3:010. Calculation of resident charges at state veterans' nursing homes.
17 KAR 3:040. Admission to state veterans' nursing homes.
ENERGY AND ENVIRONMENT CABINET: Department for Environmental Protection: Division of Water: Water Quality Standards
401 KAR 10:030. Antidegradation policy implementation methodology.
JUSTICE AND PUBLIC SAFETY CABINET: Department of Corrections: Office of the Secretary
501 KAR 6:070. Kentucky Correctional Institution for Women.
PUBLIC PROTECTION CABINET: Department of Alcoholic Beverage Control: Quotas
804 KAR 9:050. Retail liquor drink license quota.
Department of Housing, Buildings and Construction: Division of Building Codes Enforcement: Kentucky Building Code
815 KAR 7:120. Kentucky Building Code.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Medicaid Services: Commissioner's Office: Medicaid Services
907 KAR 1:711E. Repeal of 907 KAR 1:705 and 907 KAR 1:710.
Other Business: Senator Bowen made a motion, seconded by Senator Gregory, to nominate Senator Harris as Senate Co-Chair and to cease nominations. Senator Harris was elected Senate Co-Chair by unanimous voice acclamation.
Representative Damron made a motion, seconded by Representative Lee, to nominate Representative Bell as House Co-Chair and to cease nominations. Representative Bell was elected House Co-Chair by unanimous voice acclamation.
The Subcommittee had received a letter regarding the Kentucky State Fair Board administrative regulation, 303 KAR 1:041, which prohibits concealed deadly weapons in buildings owned by the Kentucky State Fair Board. A motion was made and seconded to call 303 KAR 1:041 for consideration at the May 14, 2013 meeting of the Subcommittee. Without objection, the motion was approved.
The Subcommittee adjourned at 4:30 p.m. until May 14, 2013 at 1 p.m.