Call to Order and Roll Call
The April meeting of the Administrative Regulation Review Subcommittee was held on Monday, April 14, 2014, at 9:00 AM, 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: Representative Johnny Bell, Co-Chair; Senators Perry B. Clark, Sara Beth Gregory, and Alice Forgy Kerr; Representatives Robert R. Damron, Jimmie Lee, and Tommy Turner.
Guests: Becky Gilpatrick, Melissa F. Justice, Kentucky Higher Education Assistance Authority; Russ Salsman, Darren T. Sammons, Department for Local Government; Sonja Minch, Francis Simpson, Board of Barbering; Nathan Goldman, Paula Schenk, Board of Nursing; Mark Brengelman, Board of Physical Therapy; Ava Eaves, Angela Evans, Board of Certification for Dietitians and Nutritionists; Ron Brooks, Karen Waldrop, Kentucky Department of Fish and Wildlife Resources; Amy Barker, Department of Corrections; Kevin Brown, Robin Chandler, April Pieper, David Wickersham, Kentucky Department of Education; Lucretia Johnson, Pam Knight, Dwight Lovan, Charles E. Lowther, Department of Workers' Claims; Marc A. Guilfoil, Mary Scollay, Susan Speckert, John Ward, Kentucky Horse Racing Commission; Troi J. Cunningham, Paula Goff, C. Darrell Jennings, William Nold, David Edward Sponard, Cabinet for Health and Family Services; Landon Garrison, Sports Anglers; Toby Clark, David Cottrell, Richard Elliott, Heath Frailley, Alfred Gibson, Albert Knisley, Gary D. Nale, James Reed, Joseph R. Schigur, Robert Yockey; and George Tapp, Paylake Owner.
LRC Staff: Donna Little, Emily Caudill, Sarah Amburgey, Carrie Klaber, Emily Harkenrider, Karen Howard, and Betsy Cupp.
The Administrative Regulation Review Subcommittee met on Monday, April 14, 2014, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
KENTUCKY HIGHER EDUCATION ASSISTANCE AUTHORITY: Division of Student and Administrative Services: Authority
11 KAR 4:080. Student aid applications. Becky Gilpatrick, director of student aid services, and Melissa Justice, senior associate counsel, represented the division.
OFFICE OF THE GOVERNOR: Department for Local Government: Special Purpose Governmental Entities
109 KAR 16:010 & E. Special purpose governmental entities. Russ Salsman, chief of staff, and Darren Sammons, staff attorney, represented the department.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add a statutory citation; and (2) to amend Sections 1 through 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.
GENERAL GOVERNMENT CABINET: Board of Barbering: Board
201 KAR 14:015. Retaking of examination. Sonja Minch, administrator, and Francis Simpson, chair, represented the board.
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 and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 14:030. Five (5) year expiration of license.
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 and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 14:040. Inspection of shops and schools.
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 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 14:050. Probationary license; qualifications.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 3 to comply with the drafting requirements of KRS Chapter 13A; and (2) to create a new Section 5 to establish application requirements. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 14:052. Repeal of 201 KAR 14:051, 201 KAR 14:080, and 201 KAR 14:170.
201 KAR 14:060. Licensing requirements for qualified nonresidents.
A motion was made and seconded to approve the following amendments: 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.
201 KAR 14:065. Place of business requirements.
A motion was made and seconded to approve the following amendment: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 14:150. School records.
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 14:180. License fees, examination fees, renewal fees, and expiration fees.
A motion was made and seconded to approve the following amendments: (1) to create a new Section 1 to establish fee requirements; and (2) to amend Sections 1 through 4 to comply with the formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Board of Nursing: Board
201 KAR 20:470. Dialysis technician credentialing requirements and training program standards. Nathan Goldman, general counsel, and Paula Schenk, executive director, represented the board.
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 Sections 1 through 13 to comply with the drafting and formatting requirements of KRS Chapter 13A; (3) to amend Section 13 to clarify procedures if a dialysis technician is found by a chemical dependency evaluation, mental examination, or physical examination to be unable to practice safely and effectively; and (4) to create a new Section 14 to clarify that due process shall be in accordance with KRS Chapter 13B. Without objection, and with agreement of the agency, the amendments were approved.
Board of Physical Therapy: Board
201 KAR 22:001. Definitions for 201 KAR Chapter 22. Mark Brengelman, general counsel, represented the board.
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 and Section 1 to comply with the drafting requirements of KRS Chapter 13A; and (3) to revise the REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT to correct an agency response. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 22:020. Eligibility and credentialing procedure.
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 Section 7 to comply with the drafting requirements of KRS Chapter 13A; and (3) to revise the REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT to correct an agency response. 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. Ava Eaves, chair, and Angela Evans, assistant attorney general, represented the board.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to: (a) require that an applicant for licensure or certification enclose, as an alternative to the copy of his or her registration card, a letter indicating the successful completion of the examination; and (b) clarify that the membership card issued by the Academy of Nutrition and Dietetics shall not comply with the requirements of the application for licensure or certification; (2) to amend Section 3 to update the material incorporated by reference; and (3) to revise the SUMMARY OF MATERIAL INCORPORATED BY REFERENCE to add statutory citations relating to nutritionists. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 33:070. Telehealth and telepractice.
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 citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; (3) to amend Sections 1 through 5 to comply with the drafting and formatting requirements of KRS Chapter 13A; (4) to amend Section 2 to: (a) provide examples of methods for a client to contact the practitioner; (b) require that the practitioner document the client’s acknowledgement of the risks and limitations of telepractice; and (c) require that a practitioner include documentation on which services to the client were provided by telepractice; and (5) to revise the REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT to correct an agency response. 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 1:155. Commercial fishing requirements. Ron Brooks, fisheries division director, and Karen Waldrop, wildlife division director, represented the department. Landon Garrison, sports angler, appeared in support of this administrative regulation. David Cottrell, Richard Elliot, Albert Knisley, and James Reed, commercial fishermen; Alford Gibson, fisherman; and George Tapp, pay lake owner, appeared in opposition to this administrative regulation.
In response to questions by Representative Turner, Mr. Brooks stated that the department held preliminary stakeholder meetings before receiving the biological data on which the new size limits were based. Those preliminary meetings were intended to be a starting point, not a firm agreement, and the size limits discussed at those meetings, including the “four (4) over forty (40)” limit, were not intended as a policy agreement. The second of the stakeholder meetings included an agreement by the department to conduct a five year biological study; however, that study was not intended to be completed prior to an administrative regulation amendment. At the third stakeholder meeting, the department submitted a draft of the proposed administrative regulation amendment and requested stakeholder comments on the proposal. The matter was further discussed at the public fisheries meeting, and there was additional opportunity to submit comments during the public comment period conducted pursuant to KRS Chapter 13A. Biological data demonstrated a decrease in fish size around the Cannelton part of the Ohio River waterway. The proposed administrative regulation amendment represented a compromise between stakeholders and the department. Most commercial fishing in the Cannelton part of the Ohio River waterway was for fish transfer to area pay lakes.
In response to questions by Representative Turner, Mr. Reed stated that most commercial fishermen believed that the “four (4) over forty (40)” limit was a firm agreement made with the department. The commercial fishermen believed that would be the limit for the entire Ohio River waterway, not that there would be a different limit for the Cannelton area. Mr. Brooks stated that commercial fishermen below the Cannelton area dam were in agreement with this administrative regulation amendment, but commercial fishermen above the Cannelton area dam were not in agreement. Biological data demonstrated that fish above the Cannelton area dam were not replenished as readily and were less likely to migrate.
In response to a question by Senator Kerr, Mr. Brooks stated that the department was mandated to protect the fish resources.
Mr. Reed stated that the pay lake industry was essentially the only viable commercial fishing left in Kentucky. The pay lake industry brought trophy catfish popularity to Kentucky. Pay lake owners had made significant investments, and this administrative regulation amendment was overly burdensome. Biologists did not supply sufficient data to support this administrative regulation amendment. The size limit would cause commercial fishermen to throw back approximately seventy (70) percent of each catch. This administrative regulation amendment would effectively shut down approximately 400 miles of waterway and jeopardize commercial fishing jobs and revenue.
Mr. Gibson stated that the only remaining viable industry for commercial fishermen in Kentucky was pay lakes because 30 years ago the administration advised consumers not to eat channel catfish because of contamination.
In response to questions by Co-Chair Bell, Mr. Gibson stated that Cannelton area commercial fishermen were not aware of some of the stakeholder meetings and did not know there was a spokesperson who represented them. Mr. Cottrell stated that the commercial fishing industry dated to before George Washington’s time. Commercial fishermen kept fish populations in balance, which improved the sport of fishing. The James River in Virginia established policies similar to those in this administrative regulation, and the effect on fishing was negative because fish populations became unbalanced. Mr. Garrison stated that this was a situation of the “tragedy of the commons.” Sport fishermen wanted to protect the resource. Tournaments brought in revenue, but appropriately sized fish populations had become depleted.
In response to a question by Representative Lee, Mr. Garrison stated that sports anglers caught, photographed, and returned fish. Mr. Brooks stated that the issue of concern was not that of overfishing, except pertaining to trophy-sized catfish. The department tried to reach all stakeholders for comments. Biological data was used to restrict only fishing requirements in the depleted area. Illinois, Indiana, Ohio, and Kentucky all contributed data for the biological reports. The issue of concern was that public fish populations would be damaged for private financial gain. Mr. Reed stated that, for the commercial fishing industry to remain viable, a market had to exist. The only current viable market was the pay lake industry. Twelve percent of fishing licenses were pay lake-related. This administrative regulation amendment would destroy livelihoods without sufficient biological evidence supporting the department’s position.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 4 through 8, 10, 11, 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.
Game
301 KAR 2:049. Small game and furbearer hunting and trapping on public and other federally owned areas.
A motion was made and seconded to approve the following amendments: to amend Sections 3 through 6, 9, and 10 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
301 KAR 2:126. Repeal of 301 KAR 2:125.
301 KAR 2:251. Hunting and trapping seasons and limits for furbearers.
A motion was made and seconded to approve the following amendments: (1) to amend Section 6 to establish that, except as established in 301 KAR 2:049, trapping season for furbearers shall begin one-half hour before sunrise on the third day of the modern gun deer season; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 6, 10, and 11 to comply with the drafting requirements of KRS Chapter 13A; and (3) to create a new Section 12 to incorporate the application form by reference. 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 6:170. Green River Correctional Complex. Amy Barker, assistant general counsel, represented the department.
A motion was made and seconded to approve the following amendments: to amend Section 1 and the material incorporated by reference to: (1) update citations; (2) clarify various provisions; and (3) comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Kentucky Board of Education: Department of Education: School Administration and Finance
702 KAR 3:300. Approval for school district lease and retirement incentive annuity agreements. Kevin Brown, general counsel, represented the department.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph and Section 1 to correct a statutory citation; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 3 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Office of Learning Support Services
704 KAR 7:151. Repeal of 704 KAR 7:150.
LABOR CABINET: Department of Workers' Claims: Workers' Claims
803 KAR 25:089. Workers' compensation medical fee schedule for physicians. Dwight Lovan, Commissioner, represented the department.
PUBLIC PROTECTION CABINET: Kentucky Horse Racing Commission: Thoroughbred Racing
810 KAR 1:040. Drug, medication, and substance classification schedule and withdrawal guidelines. Marc Guilfoil, director; Dr. Mary Scollay, equine medical director; and Susan Speckert, general counsel, represented the commission.
Harness Racing
811 KAR 1:090. Medication; testing procedures; prohibited practices.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to correct a statutory citation; and (2) to amend Sections 6, 8, 10, 12 through 15, 17, and 20 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 1:093. Drug, medication, and substance classification schedule and withdrawal guidelines.
811 KAR 1:095. Disciplinary measures and penalties.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2 to delete duplicative text; and (2) to amend Sections 5 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.
Quarter Horse, Appaloosa and Arabian Racing
811 KAR 2:093. Drug, medication, and substance classification schedule and withdrawal guidelines.
CABINET FOR HEALTH AND FAMILY SERVICES: Office of the Kentucky Health Benefit Exchange: Kentucky Health Benefit Exchange
900 KAR 10:100 & E. Appeals of Eligibility Determinations for KHBE Participation and Insurance Affordability Programs. William Nold, deputy executive director, represented the cabinet.
In response to a question by Senator Gregory, Mr. Nold stated that this administrative regulation did relate to the Affordable Care Act.
A motion was made, without a second, to find this administrative regulation deficient based on lack of statutory authority. Because there was not a second, the motion failed.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Sections 1, 2, and 13 to correct statutory citations; and (2) to amend Sections 1, 4 through 10, 12, and 13 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 Public Health: Division of Maternal and Child Health: Maternal and Child Health
902 KAR 4:030. Newborn Screening Program. Troi Cunningham, nurse administrator, and Dr. C. D. Jennings, director of the state newborn screening laboratory, represented the cabinet.
A motion was made and seconded to approve the following amendments: (1) to amend Section 3 to update citations; (2) to amend Sections 3 and 11 to clarify how test results are reported to the cabinet; (3) to amend Sections 3 and 9 to specify exceptions; (4) to amend Section 10 to clarify procedures for pending pulse oximetry results; (5) to amend Sections 1 through 4, 7, and 10 to comply with the drafting requirements of KRS Chapter 13A; and (6) to amend Section 2 to require newborn screening for Severe Combined Immunodeficiency (SCID). Without objection, and with agreement of the agency, the amendments were approved.
Other Business: A motion was made by Representative Turner and seconded by Representative Damron to consider 301 KAR 10:031 at the May 13 meeting of the Subcommittee. Without objection, the motion was approved.
The following administrative regulations were deferred to the May 13, 2014, meeting of the Subcommittee:
OFFICE OF THE GOVERNOR: Department for Local Government: County Budget
109 KAR 15:020. County Budget Preparation and State Local Finance Officer Policy Manual.
GENERAL GOVERNMENT CABINET: Board of Barbering: Board
201 KAR 14:085. Sanitation requirements.
201 KAR 14:090. School curriculum.
201 KAR 14:115. Examinations; school and board.
Board of Physical Therapy: Board
201 KAR 22:160. Telehealth and telephysical therapy.
JUSTICE AND PUBLIC SAFETY CABINET: Department of State Police: Driver Testing Branch: Breath Analysis Operators
500 KAR 8:030. Administration of breath alcohol tests and chemical analysis tests.
LABOR CABINET: Kentucky Occupational Safety and Health Review Commission: Commission
803 KAR 50:010. Hearings; Procedure, Disposition.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Medicaid Services: Medicaid Services
907 KAR 1:039 & E. Hearing Program reimbursement provisions and requirements.
Hospital Service Coverage and Reimbursement
907 KAR 10:825. Diagnosis-related group (DRG) inpatient hospital reimbursement.
Private Duty Nursing
907 KAR 13:015 & E. Private duty nursing service reimbursement provisions and requirements.
Department for Behavioral Health, Developmental and Intellectual Disabilities: Division for Behavioral Health: Mental Health
908 KAR 2:240 & E. Kentucky Youth Peer Support Specialist.
908 KAR 2:250 & E. Community support associate; eligibility criteria and training.
The Subcommittee adjourned at 2:00 P.M. until May 13, 2014 at 1:00 P.M.