Call to Order and Roll Call
The October meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, October 8, 2013, at 1:00 PM, in Room 149 of the Capitol Annex. Senator Ernie Harris, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Ernie Harris, Co-Chair; Representative Johnny Bell, Co-Chair; Senators Joe Bowen, Perry B. Clark, and Sara Beth Gregory; Representatives Robert R. Damron, and Jimmie Lee.
Guests: Travis Powell, Council on Postsecondary Education; Alicia Sneed, Education Professional Standards Board; Greg Wells, Michael West, Board of Licensure for Long Term Care Administration; Charles Lykins, Kentucky Board of Hairdressers and Cosmetologists; Larry Disney, Jim Grawe, Kentucky Real Estate Appraisers Board; Ron Brooks, Margaret Eversole, Karen Waldrop, Kentucky Department of Fish and Wildlife Resources; Steve Hohmann, Keith Smith, Department for Natural Resources; Amy Barker, Dana Todd, Justice and Public Safety Cabinet; Godwin Onodu, Todd Shipp, Transportation Cabinet; Marc Guilfoil, Susan Speckert, Kentucky Horse Racing Commission; Carrie Banahan, Stephanie Brammer-Barnes, Al Ervin, Eric Friedlander, William Nold, Cabinet for Health and Family Services; Gary Fletcher, Travis Fletcher, Sunny Ridge Racing; Gabe Prewitt, Kentucky Harness Horseman's Association; James Aneszko, Home Instead Senior Care; and Harold Barlow, Citizen.
LRC Staff: Donna Little, Emily Caudill, Sarah Amburgey, Carrie Klaber, Emily Harkenrider, Karen Howard, Laura Napier, and Betsy Cupp.
The Administrative Regulation Review Subcommittee met on Tuesday, October 8, 2013, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
COUNCIL ON POSTSECONDARY EDUCATION: Nonpublic Colleges
13 KAR 1:020. Private college licensing. Travis Powell, general counsel, represented the council.
A motion was made and seconded to approve the following amendments: to amend Sections 5 and 7 to comply with the drafting requirements of KRS 13A.222(4)(b). Without objection, and with agreement of the agency, the amendments were approved.
EDUCATION PROFESSIONAL STANDARDS BOARD: Administrative Certificates
16 KAR 3:080. Career and technical education school principals. Alicia A. Sneed, director of legal services, represented the board.
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; and (3) to amend Section 1 for clarity.
Alternative Routes to Certification
16 KAR 9:080. University-based alternative certification program.
In response to questions by Co-Chair Harris, Ms. Sneed stated that this administrative regulation clarified mentoring requirements for the university-based alternative certification process. For alternative certification, a minimum of six (6) hours per year during the three (3) year program was required.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add statutory citations; and (2) to amend Sections 3, 4, and 7 to comply with the drafting requirements of KRS Chapter 13A.
GENERAL GOVERNMENT CABINET: Board of Licensure for Long-Term Care Administrators: Board
201 KAR 6:020. Other requirements for licensure. Greg Wells, chair, and Michael West, assistant attorney general, represented the board.
In response to questions by Co-Chair Bell, Mr. Wells and Mr. West stated that these administrative regulations established requirements for individual licensed administrators, but it was not required that individuals seek licensure. The changes allowed a temporary permit to be transferred to another facility within six (6) months and applied to licensed administrators rather than facilities.
Senator Bowen welcomed his constituent, Mr. Wells.
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 Section 1 for clarity; (3) to amend Section 1(2) to increase the minimum scaled score needed on the required written examination from seventy (70) percent to seventy-five (75) percent; (4) to revise material incorporated by reference to match the requirements in this administrative regulation; (5) 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 (6) to amend Sections 1, 2, 4, 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.
201 KAR 6:030. Temporary permits.
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 and 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 6:040. Renewal, reinstatement, and reactivation of license.
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 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.
201 KAR 6:050. Licensure by endorsement.
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 Sections 1 and 2 to comply with the drafting requirements of KRS Chapter 13A; and (3) to revise material incorporated by reference to match the requirements in this administrative regulation. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 6:060. Fees.
A motion was made and seconded to approve the following amendments: to amend Section 7 for clarity. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 6:070. Continuing education requirements.
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, 3, 4, 5, and 6 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 6:080. Code of ethics.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to add statutory citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; and (3) to amend Sections 1 and 4 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 6:090. Complaint process.
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 Sections 1, 2, and 4 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Board of Hairdressers and Cosmetologists: Board
201 KAR 12:020. Examination. Charles Lykins, executive director, 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, 3, 5, 6, 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.
201 KAR 12:040. Apprentices; ratio to operators.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 1 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 12:045. Apprentice, nail technician, esthetician, and instructor's licensing.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 2, and 3 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 12:050. Reciprocity for valid licensee.
A motion was made and seconded to approve the following amendments: to amend the TITLE and Section 1 to: (1) cross-reference applicable statutory requirements; and (2) 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 12:060. Inspections.
A motion was made and seconded to approve the following amendments: to amend Sections 1 through 6 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 12:065. New, relocated and change of owner salons.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1 through 5, 7, and 8 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (2) incorporate by reference an updated application form. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 12:082. School's course of instruction.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 4, 5, 6, 9, 11, 12, 14, 15, 17, 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.
201 KAR 12:083. Educational requirements.
A motion was made and seconded to approve the following amendments: to amend Sections 1 and 3 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 12:088. Esthetic course of instruction.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 5 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 12:100. Sanitation standards.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 2, 3, 5, 6, 9, 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.
201 KAR 12:101. Equipment sanitation.
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.
201 KAR 12:120. School faculty.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 2, 3, 5, 6, 7, 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.
201 KAR 12:125. Schools' student administrative regulations.
A motion was made and seconded to approve the following amendments: to amend Sections 1 through 4, 6, 9 through 14, 16, 17, and 19 through 24 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 12:150. School records.
A motion was made and seconded to approve the following amendments: to amend Sections 1 and 5 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 12:176. Repeal of 201 KAR 12:175, 201 KAR 12:200, and 201 KAR 12:210.
201 KAR 12:180. Hearing procedures.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 2, 3, 5, and 7 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 12:190. Investigations and complaints.
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 Sections 1 through 5, 8, and 9 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (3) create a new Section 10 to incorporate by reference the complaint form. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 12:260. License fees, examination fees, renewal fees, restoration fees and miscellaneous fees.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO; STATUTORY AUTHORITY; and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to correct statutory citations; and (2) to amend Section 6 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 12:270. Threading practice.
A motion was made and seconded to approve the following amendments: to amend the RELATES TO paragraph and 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.
Real Estate Appraisers Board: Board
201 KAR 30:040. Standards of practice. Larry Disney, executive director, and Jim Grawe, assistant attorney general, represented the board.
A motion was made and seconded to approve the following amendments: to amend Section 1 to comply with the drafting 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 1:132. Sale of live bait. Ron Brooks, director of fisheries; Margaret Everson, assistant attorney general; and Karen Waldrop, director of wildlife, represented the department.
In response to a question by Senator Bowen, Mr. Brooks stated that this administrative regulation and 301 KAR 1:152 prohibited commercial fishermen from moving Asian carp to other areas of water.
In response to questions by Co-Chair Harris, Mr. Brooks stated that the department was making headway in the control of Asian carp encroachment, but there was still a lot of work to be done. Asian carp was popular in China, and the department hoped that the domestic market would grow.
A motion was made and seconded to approve the following amendments: to amend Sections 2 and 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 1:152. Asian Carp and Scaled Rough Fish Harvest Program.
A motion was made and seconded to approve the following amendments: to amend Sections 3 and 4 to comply with the formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Game
301 KAR 2:049. Small game and furbearer hunting and trapping on public areas.
A motion was made and seconded to approve the following amendments: to amend Sections 3 and 8 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
301 KAR 2:225 & E. Dove, wood duck, teal, and other migratory game bird hunting.
A motion was made and seconded to approve the following amendments: 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.
ENERGY AND ENVIRONMENT CABINET: Department for Natural Resources: Division of Mine Reports: Permits
405 KAR 8:010. General provisions for permits. Steve Hohmann, commissioner, and Keith Smith, executive director, represented the department.
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.222; and (3) to amend Sections 2 through 6 and 8 through 26 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Bond and Insurance Requirements
405 KAR 10:001 & E. Definitions for 405 KAR Chapter 10.
A motion was made and seconded to approve the following amendments: to amend Section 1 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
405 KAR 10:015. General bonding provisions.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 2, 3, 4, and 8 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
405 KAR 10:070 & E. Kentucky reclamation guaranty fund.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and 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.
405 KAR 10:080 & E. Full-cost bonding.
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 Sections 3 and 4 to comply with the drafting requirements of KRS Chapter 13A; and (3) to revise the material incorporated by reference to conform to the administrative regulation. Without objection, and with agreement of the agency, the amendments were approved.
405 KAR 10:090 & E. Production fees.
A motion was made and seconded to approve the following amendments: (1) to amend the TITLE for consistency among administrative regulations; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 1 to conform with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
405 KAR 10:201E. Repeal of 405 KAR 10:200.
JUSTICE AND PUBLIC SAFETY CABINET: Department of Corrections: Office of the Secretary
501 KAR 6:110. Roederer Correctional Complex. Amy Barker, assistant general counsel, represented the department.
In response to questions by Co-Chair Harris, Ms. Barker stated that this administrative regulation contained nonsecured department policies for the Roederer Correctional Complex. This year’s changes, among other changes, included: (1) amendments to fire prevention and evacuation procedures; (2) regulating fishing on facility lakes; (3) revisions to holding cell guidelines; (4) changes to medical provisions for compliance with the authorizing statute; and (5) clarifications to visiting rules.
Kentucky Law Enforcement Council: Council
503 KAR 1:180. Firearms qualification for certified peace officers. Dana M. Todd, assistant general counsel, represented the council.
TRANSPORTATION CABINET: Department of Vehicle Regulation: Division of Motor Vehicle Licensing: Motor Vehicle Tax
601 KAR 9:200. Registration and titling of rebuilt or salvage motor vehicles. Kim Jenkins, legislative liaison; Godwin Onodu, assistant director; and Todd Shipp, special assistant, represented the division.
In response to questions by Co-Chair Harris, Mr. Shipp stated that a confidential inspection was implemented by law enforcement if there was a discrepancy. A confidential inspection was to investigate the identification numbers on parts of a car not visible under normal circumstances. Almost every individual car part had a part-specific identification number. The purpose was to prevent marketing parts from a stolen vehicle or stolen parts.
Representative Lee stated that a confidential inspection was common and included, for example, areas under seats and behind insulation.
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 1 to add a definition for “confidential inspection” for clarity; and (3) to amend Sections 2 through 7 to comply with the formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
PUBLIC PROTECTION CABINET: Kentucky Horse Racing Commission: Harness Racing
811 KAR 1:215. Kentucky Standardbred Development Fund and Kentucky Standardbred Breeders' Incentive Fund. Marc Guilfoil, commissioner, and Susan Speckert, general counsel, represented the commission. Gabe Prewitt, executive secretary, Kentucky Harness Horsemen’s Association, appeared in support of these administrative regulations. Gary Fletcher, owner, Sunny Ridge Racing, appeared in opposition to these administrative regulations.
Mr. Fletcher stated that breeding rule changes allowed any breeder to qualify for the incentive fund by breeding a mare if the mare was in Kentucky for at least six (6) months. These provisions would create a burden for small breeders who would not be able to compete with the larger horse farms.
Co-Chair Bell stated that the rule change seemed to help small breeders by bringing more mares into Kentucky. More mares in Kentucky would add funds to the Breeders’ Incentive Fund. In response, Mr. Fletcher stated that because his horses were on mine reclamation land, he could not board mares. His contention was that most of the Breeders’ Incentive Fund money would go to out-of-state horse farms. Large horse farms would be helped more than small breeding operations. Mr. Prewitt responded that Kentucky had already lost its stallions to other states. These administrative regulations were intended to bring mares into Kentucky. Mr. Guilfoil responded that small breeders were helped by these administrative regulations because of provisions that made each foal more valuable.
In response to a question by Co-Chair Bell, Mr. Guilfoil stated that these requirements would not be enforced until 2017; however, foals born in 2014 would be impacted. Mr. Fletcher responded that dual eligibility of foals helped, but did not level the playing field for large and small breeders. He added that funds should not be sent out of state.
Co-Chair Harris urged the commission to work with Mr. Fletcher to address his concerns.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to correct statutory citations; and (2) to amend Sections 1, 2, 3, 6, 9, 10, 18, 24, 26, and 28 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
811 KAR 1:220. Harness racing at county fairs.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 3, 6, 20, and 24 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 the Kentucky Health Benefit Exchange: Health Benefit Exchange
900 KAR 10:010 & E. Exchange participation requirements and certification of qualified health plans and qualified dental plans. Carrie Banahan, executive director, and William Nold, deputy executive director, represented the cabinet.
In response to a question by Senator Gregory, Ms. Banahan stated that the cabinet had statutory authority for these administrative regulations from state statutes and the governor’s executive order. The statutory authority was stated in the NECESSITY, FUNCTION, AND CONFORMITY paragraph. KRS 194A.050(1) authorized the cabinet to promulgate administrative regulations if necessary to receive federal funding. In response, Senator Gregory stated that she did not believe the cabinet had valid statutory authority for these administrative regulations, and the governor’s executive order was not statutory authority.
In response to questions from Senator Harris, Mr. Nold stated that privacy concerns regarding electronically submitted data were based on Web site information that was erroneously posted. Only authorized persons, such as agents, would have access to the information. Ms. Banahan stated that this program complied with federal privacy and security guidelines.
Senator Bowen stated that he was concerned that there did not seem to be statutory authority for these administrative regulations. He was also concerned regarding the governor’s attempt to make sweeping policy via an executive order.
A motion was made by Senator Gregory, seconded by Senator Bowen, to find these administrative regulations deficient based on lack of statutory authority. A roll call vote was conducted. With Senators Harris, Bowen, and Gregory voting to find these administrative regulations deficient and Senator Clark and Representative Lee voting not to find these administrative regulations deficient, the motion did not carry. Five (5) votes to find these administrative regulations deficient were required.
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 Sections 1 through 4, 6 to 8, 13 through 16, and 20 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (3) to amend the form incorporated by reference to change a filing deadline to match the deadline stated in the body of the administrative regulation. Without objection, and with agreement of the agency, the amendments were approved.
900 KAR 10:020 & E. Kentucky Health Benefit Exchange Small Business Health Options Program.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1 through 10 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (2) to create a new Section 11 to incorporate by reference two required application forms. Without objection, and with agreement of the agency, the amendments were approved.
900 KAR 10:050 & E. Individual Agent or Business Entity Participation with the Kentucky Health Benefit Exchange.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 5 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Office of the Inspector General: Office
906 KAR 1:190. Kentucky Applicant Registry and Employment Screening Program. Stephanie Brammer-Barnes, policy analyst; Al Ervin, program manager; and Eric Friedlander, deputy secretary, represented the cabinet. Harold Barlow, parent of a program client, appeared in support of this administrative regulation. James Aneszko, vice president and business owner, Home Instead Senior Care, appeared in opposition to this administrative regulation.
In response to questions by Representative Lee, Mr. Friedlander stated that this administrative regulation implemented the corresponding federal program. This administrative regulation provided for a background check for crimes in other states, in addition to the Kentucky background check. Due process was provided in that crimes in other states had already been subject to due process and there was an appeal process for a misidentified person or for a person who had been rehabilitated. After seven (7) years, a person who had been rehabilitated may request a rehabilitation review panel, which would consider mitigating factors in order to determine if the employment prohibition should be waived. Statutory authority provided for this additional background check as an option only. Statutory revision was required to make this program mandatory. Ms. Brammer-Barnes stated that this administrative regulation did not create a new registry, but allowed access to other existing registries.
Mr. Barlow stated that he had a severely disabled son who was assaulted as a client in the Supports for Community Living (SCL) program. His son was autistic and nonverbal. Because he was nonverbal, law enforcement did not address his assault. The cabinet did not address the assault. His son had been left alone several times, despite the fact that his son had a documented seizure disorder. A person who could assault someone like his son should not again be able to work with vulnerable citizens. Mr. Barlow supported this administrative regulation.
Mr. Aneszko stated that this administrative regulation would have negative effects on the elderly because there would be cost increases, especially if this administrative regulation became mandatory rather than optional. If funding ran out and the background check was mandatory, rather than optional, costs would be doubled and would create obstacles to an already insufficient long-term care workforce. Additionally, the added background check would delay screening, which may cause a delay in hiring to meet unexpected care needs.
In response to a question by Representative Lee, Mr. Aneszko stated that the current cost for a background check was twenty (20) to thirty (30) dollars. Cost including the new background check was approximately sixty-three (63) dollars.
Representative Lee stated that the sixty-three (63) dollar sum seemed small compared to the protection of vulnerable individuals. The long-term care industry had promised the General Assembly that improvements in care would be made; however, improvements did not seem to have been made. Clients in long-term care facilities were virtually captives, in that they could not leave if they were dissatisfied with the level of care provided. In response, Mr. Aneszko stated that the long-term care industry wanted effective background checks and full protection for clients.
In response to a question by Representative Lee, Mr. Aneszko stated that he could not agree to mandatory background checks if the industry was granted a rate increase because he did not represent a facility. Instead, services were provided in the clients’ homes. Funding came from clients, and ninety-five (95) percent of clients were private payors; therefore, a rate increase request was not really at issue.
Mr. Friedlander stated the cabinet’s apology to Mr. Barlow for what happened to his disabled son. The cabinet agreed to ask the General Assembly to make the additional background check mandatory, rather than optional, during the 2014 Regular Session of the General Assembly.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2 to clarify that the screening requirements apply to cabinet staff and prospective employees hired on or after the regulation's effective date; (2) to delete Sections 12 and 13(3) and (4) because the provisions exceed the scope of this administrative regulation; and (3) to amend Sections 1, 2, 6, 13, 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.
The following administrative regulations were deferred to the November 12, 2013, meeting of the Subcommittee:
TOURISM, ARTS AND HERITAGE CABINET: State Fair Board: Fairgrounds and Exhibition Center
303 KAR 1:042. Repeal of 303 KAR 1:041.
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 6:050. Luther Luckett Correctional Complex.
TRANSPORTATION CABINET: Motor Vehicle Commission: Commission
605 KAR 1:050. Dealer and salesman.
605 KAR 1:060. Temporary off-site sale or display event.
605 KAR 1:070. Change of ownership.
605 KAR 1:090. Business names.
605 KAR 1:130. Procedures.
605 KAR 1:190. Motor vehicle advertising.
605 KAR 1:210. Nonprofit motor vehicle dealer requirements and licensing.
EDUCATION AND WORKFORCE DEVELOPMENT: Kentucky Board of Education: Department of Education: Office of Instruction
704 KAR 3:390. Extended school services.
KENTUCKY COMMUNITY AND TECHNICAL COLLEGE SYSTEM: Kentucky Fire Commission: Commission on Fire Protection Personnel Standards and Education
739 KAR 2:080. Candidate physical ability test.
ENERGY AND ENVIRONMENT CABINET: Public Service Commission: Utilities
807 KAR 5:069. Filing requirements and procedures for federally funded construction project of a water association, a water district, or a combined water, gas, or sewer district.
CABINET FOR HEALTH AND FAMILY SERVICES: Office of the Inspector General: Division of Health Care: Health Services and Facilities
902 KAR 20:027. Repeal of 902 KAR 20:021 and 902 KAR 20:026.
Department for Medicaid Services: Division of Administration and Financial Management: Medicaid Services
907 KAR 1:563. Medicaid covered services appeals and hearings unrelated to managed care.
Department for Behavioral Health, Developmental and Intellectual Disabilities: Division of Administration and Financial Management: Institutional Care
908 KAR 3:050. Per diem rates.
908 KAR 3:060. "Means test" for determining patient liability.
Other Business: Co-Chair Harris introduced the Subcommittee’s newest legislative analyst, Carrie Klaber. Carrie worked for the past five (5) years with the Interim Joint Committee on Licensing and Occupations. She did her undergraduate work at the University of Kentucky and earned her Juris Doctorate from Chase Law School. The Subcommittee welcomed Ms. Klaber.
The Subcommittee adjourned at 2:50 p.m. until November 12, 2013 at 1 p.m.