Call to Order and Roll Call
The 1st meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, May 13, 2014, 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 Perry B. Clark, Sara Beth Gregory, and Alice Forgy Kerr; Representatives Robert R. Damron, and Tommy Turner.
Guests: Beau Barnes, Kentucky Teachers' Retirement System; Robert Brown, Darren Sammons, Department for Local Government; Lavonne Bowling, Kenneth Hill, Steve VanZant; Board of Auctioneers; David Beyer, Board of Dentistry; Sonja Minch, Francis Simpson, Board of Barbering; Karen Waldrop, David Wicker, Department of Fish and Wildlife Resources; Morgain Sprague, Kentucky State Police; Amy Barker, Department of Corrections; Ann DAngelo, Michael Hill, Jamie Fiepke, Transportation Cabinet; Fred Huggins, Eddie Jacobs, Occupational Safety and Health Review Commission; Trey Hieneman, Department for Alcoholic Beverage Control; Mary Begley, Ijeoma Eneje, Kara Fresh, Beth Jordan, Natalie Kelly, Lawrence Kissner, Stuart Owen, Vestena Robbins, Cabinet for Health and Family Services; Peter Goodman, Randall Payne, R. Bruce Scott, Department for Environmental Protection; Nancy Galvagni, Sarah Nicholson, Kentucky Hospital Association; Darlene Eakin, Kentucky Optometric Association; Kathy Wheeler, Kentucky Coalition of Nurse Practitioners/Nurse Midwives; Doug Doerrfeld, Suzanne Tallichet, Ted Withrow; Kentuckians for the Commonwealth.
LRC Staff: Donna Little, Emily Caudill, Sarah Amburgey, Carrie Klaber, Emily Harkenrider, Karen Howard, and Betsy Cupp.
The Administrative Regulation Review Subcommittee met on Tuesday, May 13, 2014, and submits this report:
The Subcommittee determined that the following administrative regulation did not comply with statutory requirements and was deficient:
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Medicaid Services: Medicaid Services
907 KAR 1:604 & E. Recipient cost-sharing. Lawrence Kissner, commissioner, and Stuart Owen, regulation coordinator, represented the department. Nancy Galvagni, senior vice president, and Sarah Nicholson, vice president, represented the Kentucky Hospital Association and appeared in opposition to this administrative regulation.
Ms. Galvagni stated that the Kentucky Hospital Association was opposed to this administrative regulation because of provisions for an eight (8) dollar copay for nonemergency use of an emergency room. The copay itself was not the issue. The cabinet had federal approval regarding the state plan to determine what constituted nonemergency use of an emergency room; however, two managed care organizations (MCOs) were using different standards to determine nonemergency use. Coventry and WellCare MCOs, in policies developed subsequent to contracts between the MCOs and the providing hospitals, established criteria that differed from that approved for Kentucky by the federal agency.
Ms. Galvagni stated that the appropriate party to determine if use of an emergency room was for nonemergency reasons would be hospital medical personnel, as established in the federal approval of the cabinet’s determination criteria. The determination criteria established by Coventry and WellCare were not part of any negotiated policies with the providing hospitals. The hospitals had not agreed to and were opposed to these policies. Ms. Galvagni requested that the eight (8) dollar copay requirements be removed from this administrative regulation until the related issues were resolved. If the cabinet declined to amend this administrative regulation to remove the copay, Ms. Galvagni requested that the Subcommittee find this administrative regulation deficient.
In response to a question by Senator Clark, Ms. Galvagni stated that the copay was being increased from $6 to $8. The issue however was with the independent policies established by Coventry and WellCare MCOs.
In response to a question by Representative Damron, Ms. Galvagni stated that Kentucky had five Medicaid MCOs. Three of the five seemed to be following federally approved guidelines regarding determination of nonemergency use of emergency rooms; however, Coventry and WellCare did not seem to be complying with those standards.
In response to a question by Co-Chair Harris, Mr. Kissner stated that the cabinet could not agree to remove the copay because of financial imbalances that would result.
In response to a question by Senator Kerr, Subcommittee staff stated that there were not any representatives of the MCOs present at the Subcommittee meeting.
In response to a question by Senator Clark, Mr. Kissner stated that the cabinet did not have authority regarding MCO compliance with contracts between the MCOs and the providing hospitals.
In response to questions by Co-Chair Bell, Mr. Kissner stated that the decision regarding if an emergency room visit is an actual emergency was made by a doctor based on national standards after the visit. MCOs made the decisions pursuant to contracts between the MCOs and the providing hospitals. Co-Chair Bell responded that a medical expert at the providing hospital, not someone in another state, should make the decision. He expressed concern that a hospital may not treat the patient effectively if the hospital was preoccupied with concerns regarding reimbursement. Additionally, the Subcommittee did not have access to the contracts in order to make an informed decision.
In response to a question by Senator Kerr, Mr. Owen stated that the cabinet was not disputing the federal authority to require the providing hospital to make a determination regarding if an emergency room visit was nonemergency, but that issue was not directly germane to the $8 copay. Ms. Galvagni stated that the contracts between the MCOs and the providing hospitals did not include the policies used by Coventry and WellCare to determine nonemergency emergency room use. These policies were developed after the contracts were already in place. Senator Kerr stated that the MCOs should have representatives available to respond.
In response to questions by Representative Damron, Mr. Kissner stated that the Department of Insurance provided oversight and reviewed fiscal filings of these MCOs. The filings were conducted quarterly, and an audit was conducted each June. Both Coventry and WellCare have been losing money pertaining to these contracts; however, they remain hopeful and continue to honor the contracts that have been made.
In response to a question by Co-Chair Harris, Mr. Kissner stated that the cabinet declined to defer because the affiliated emergency administrative regulation would then expire before this ordinary administrative regulation could become effective.
Co-Chair Bell stated that, if this problem was not soon resolved, the General Assembly would consider legislation to establish the determination criteria statutorily.
A motion was made by Representative Turner and seconded by Senator Gregory to find 907 KAR 1:604 & E deficient due to lack of statutory authority. A roll call vote was conducted, and with six votes to find this administrative regulation deficient, one pass vote, and one member absent, the motion was approved.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add a statutory citation; (2) to amend Sections 1, 2, 3, 7, and 9 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (3) to amend Section 2 to: (a) establish the copayment amount for services at a federally qualified health center look-alike; and (b) specify that the full amount of the established copayment shall be deducted from the provider reimbursement. Without objection, and with agreement of the agency, the amendments were approved.
Administrative Regulations Reviewed by the Subcommittee:
FINANCE AND ADMINISTRATION CABINET: Kentucky Teachers' Retirement System: General Rules
102 KAR 1:270. Statement of member account. 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 STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to correct statutory citations; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 2 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
102 KAR 1:320. Qualified domestic relations orders.
In response to a question by Co-Chair Harris, Mr. Barnes stated that the determination of the marital portion was a calculation used in situations of divorce. The calculation was an alternative and better way to calculate the marital portion.
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 the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 2, 7, 9, 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.
OFFICE OF THE GOVERNOR: Department for Local Government: County Budget
109 KAR 15:020. County Budget Preparation and State Local Finance Officer Policy Manual. Robert Brown, state and local finance officer, 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 correct a statutory citation; and (2) 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.
GENERAL GOVERNMENT CABINET: Board of Auctioneers: Board
201 KAR 3:025. Reciprocity requirements. Kenneth Hill, executive director, and Steve Van Zant, attorney, represented the board.
201 KAR 3:090. Administrative fees for applications and services.
In response to a question by Co-Chair Harris, Mr. Van Zant stated that the filing fee was being increased to meet the board’s budget needs because new requirements increased expenses while a 12 percent reduction in the number of licensees and the elimination of the principal examination and its fee decreased income. The fee had not been increased since 2003.
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 add statutory citations; (2) to amend Section 1 to: (a) establish the $125 examination fee for each new applicant with the board; and (b) delete the payment of an additional late fee after the six (6) month grace period; (3) to amend Section 4 to require a licensee to pay the renewal recovery fee of thirty (30) dollars to reactivate a license placed in escrow; and (4) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 2, 4, and 6 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Board of Dentistry: Board
201 KAR 8:016. Registration of dental laboratories. David Beyer, 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 2, 3, 7, 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.
201 KAR 8:532. Licensure of dentists.
A motion was made and seconded to approve the following amendments: to amend Section 16 to revise the renewal form incorporated by reference because the administrative regulation no longer requires the form to be notarized and include a photograph. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 8:562. Licensure of dental hygienists.
A motion was made and seconded to approve the following amendments: to amend Section 17 to revise the renewal form incorporated by reference. Without objection, and with agreement of the agency, the amendments were approved.
Board of Barbering: Board
201 KAR 14:090. School curriculum. Sonja Minch, administrator, and Francis Simpson, chair, represented the board.
In response to questions by Co-Chair Harris, Ms. Minch stated that the one hour per day lecture and demonstration requirement has been an on-going requirement; however, in the previous amendment to this administrative regulation, the requirement was inadvertently deleted. A total of 1,500 total hours was required for licensure.
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 14:115. Examinations; school and board.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to specify examination requirements; (2) to create a new Section 9 to incorporate by reference various application forms; and (3) to amend Sections 2, 3, 5, 6, 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.
TOURISM, ARTS AND HERITAGE CABINET: Department of Fish and Wildlife Resources: Game
301 KAR 2:132. Elk depredation permits, landowner cooperator permits, and quota hunts. Karen Waldrop, wildlife division director, and David Wicker, general counsel, represented the department.
In response to a question by Senator Clark, Ms. Waldrop stated that provisions related to elk depredation were for homeowners who had experienced property damage due to elk.
In response to questions by Co-Chair Harris, Ms. Waldrop stated that elk were present in the sixteen (16) counties that constituted the Elk Restoration Zone, and elk had not strayed much from those counties. A hunter who found an elk outside of the Elk Restoration Zone may take the elk if the hunter has a deer permit. Initially, approximately 1,500 elk were brought into the Elk Restoration Zone, and today there were approximately 10,000 elk.
A motion was made and seconded to approve the following amendment: to amend Section 5 to clarify subsection (14). Without objection, and with agreement of the agency, the amendment was approved.
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. Morgain Sprague, counsel, represented the department.
A motion was made and seconded to approve the following amendments: to amend Section 3 for clarification. Without objection, and with agreement of the agency, the amendments were approved.
TRANSPORTATION CABINET: Department of Highways: Division of Professional Services: Professional Engineering and Related Services
600 KAR 6:040. Prequalification of firms for engineering or engineering-related services. Ann D’Angelo, assistant general counsel; Michael Hill, professional services division director; and Jamie Fiepke, motor carrier advisory committee president, represented the department.
In response to questions by Co-Chair Harris, Mr. Hill stated that the authorizing statute required annual qualification submittal. This administrative regulation clarified that a letter shall suffice as the annual submittal in odd-numbered years if there were not significant changes, such as changes in qualified personnel.
Department of Vehicle Regulation: Division of Motor Carriers: Motor Carriers
601 KAR 1:230. Education and safety training for motor carrier operations.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 2, and 4 to comply with the drafting requirements of KRS Chapter 13A; and (2) to amend Section 6 to revise the application form incorporated by reference. Without objection, and with agreement of the agency, the amendments were approved.
LABOR CABINET: Kentucky Occupational Safety and Health Review Commission: Commission
803 KAR 50:010. Hearings; Procedure, Disposition. Fred Huggins, attorney, and Eddie Jacobs, executive director, represented the commission.
In response to questions by Senator Clark, Mr. Huggins stated that labor unions, in addition to corporations and partnerships, were required to be represented by an attorney. Kentucky Constitution Section 116 established that the Kentucky Supreme Court had the authority to establish rules of practice. The Kentucky Supreme Court, in its rules, established that a person may serve as his or her own counsel, but an artificial person, such as a corporation, etc. was required to retain a licensed attorney. Most businesses already had legal representation; however, there were businesses that were unable to retain counsel. Usually those businesses without legal counsel worked with the agency to settle issues before hiring an attorney would be necessary. When a labor union was involved, there was usually a third party intervener in matters of litigation.
In response to a question by Senator Gregory, Mr. Jacobs stated that a non-person entity that was unable to afford or for another reason retain a licensed attorney typically did not appear at hearings; therefore, the matter would result in default of the entity.
Representative Damron stated that the General Assembly had experienced similar problems pertaining to the autonomy of the Judicial Branch. For example, Frankfort’s former Home Depot building had been obtained and remodeled without authority of the General Assembly and with independent, unaccounted for funds of the branch. The Judicial Branch lacked adequate auditing standards, and the State Auditor did not have constitutional authority to investigate the financial matters of the branch. The requirement to hire a licensed attorney seemed inappropriate.
In response to a question by Co-Chair Bell, Mr. Huggins stated that the language was added back into this administrative regulation after an ethics opinion. Case law focused exclusively on the idea that a non-attorney shall not practice law.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to include additional relevant citations; (2) to amend Section 2 to delete requirements that repeated statutory provisions; (3) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 9, 13, 26, 28, 29, 33, 45, and 51 to include cross-references and make other changes for clarity; and (4) to amend Sections 1, 3, 4, 6 through 11, 13 through 18, 20, 21, 22, 26 through 32, 35 through 37, 39, 40, 42, and 44 through 59 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
PUBLIC PROTECTION CABINET: Department of Alcoholic Beverage Control: Advertising Distilled Spirits and Wine
804 KAR 1:051. Repeal of 804 KAR 1:050. Trey Hieneman, legislative liaison, represented the department.
Quotas
804 KAR 9:050. Quota retail drink licenses.
In response to a question by Co-Chair Harris, Mr. Hieneman stated that this was not a new ratio and was intended to create parity with the administrative regulation governing quota licenses by the drink.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2 to clarify this administrative regulation's applicability to cities that have already been given quotas; (2) to amend Section 3 to establish the standard the board shall use to determine if a city shall receive an increased quota; (3) to add new Sections 5 and 6 to establish procedures for quota vacancies and reductions; (4) to add a new Section 7 to establish that if a dry county with a wet city becomes wet, the quota for the county shall supersede the city quota; and (5) to amend Sections 1, 2, and 3 to reorganize provisions and 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: Department for Medicaid Services: Medicaid Services
907 KAR 1:019 & E. Outpatient Pharmacy Program. Lawrence Kissner, commissioner, and Stuart Owen, regulation coordinator, represented the cabinet. Dr. Kathy Wheeler, Kentucky Coalition of Nurse Practitioners or Nurse Midwives, appeared in support of 907 KAR 1:082. Darlene Eakin, executive director, Kentucky Optometric Association, appeared in support of 907 KAR 1:631 and 1:632.
In response to a statement by Senator Gregory, Mr. Owen stated that all of these administrative regulations were not mandated by the Affordable Care Act, but all related to the expansion of Medicaid.
A motion was made by Senator Gregory and seconded by Representative Turner to find these administrative regulations deficient due to lack of statutory authority. A roll call vote was conducted, and, with four votes to find these administrative regulations deficient, one pass vote, two votes against a finding of deficiency, and one member absent, the motion failed. A majority vote of at least five votes for a finding of deficiency is required for the motion to pass.
Representative Damron stated that he voted against finding these administrative regulations deficient because there were many good things in these administrative regulations, including provisions for substance abuse treatment and eye care.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1 through 5, 7, 8, 9, 13, 14, 15, and 17 to comply with the drafting and formatting requirements of KRS Chapter 13A; (2) to amend Section 3 to delete from the list of drugs excluded from coverage a barbiturate or a benzodiazepine; and (3) to amend Section 17 and the forms incorporated by reference to update the forms required to request prior authorization for drugs. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 1:030 & E. Home health agency services.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1, 3, 4, 5, 7, 8, 10, and 11 to comply with the drafting and formatting requirements of KRS Chapter 13A; (2) to amend Section 3 to require coverage of: (a) a supply listed on the Home Health Schedule of Supplies if the supply is provided to a recipient pursuant to the recipient’s plan of care; or (b) a listed supplemental nutritional product if a physician certifies the medical necessity of the supplemental nutritional product; and (3) to amend Section 11 to update material incorporated by reference. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 1:038 & E. Hearing Program coverage provisions and requirements.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1 through 6 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (2) to amend Sections 3 and 4 to delete provisions already established elsewhere in this administrative regulation or in 907 KAR 1:039. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 1:039 & E. Hearing Program reimbursement provisions and requirements.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1 and 2 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (2) to amend Section 2 to delete provisions that duplicated provisions established in 907 KAR 1:038. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 1:044 & E. Coverage provisions and requirements regarding community mental health center services.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to define “mental health associate”; (2) to amend Section 4 to delete medication assisted treatment for a substance use disorder from the list of rehabilitative mental health and substance use disorder services covered under this administrative regulation; (3) to amend Section 7 to change references from “practitioner” to “mental health associate working under supervision or a professional equivalent”; (4) to amend Section 13 to update the material incorporated by reference; (5) to amend Sections 2, 5, 7, and 9 through 14 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (6) to amend Section 9 to delete provisions that duplicated provisions established elsewhere in the administrative regulation. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 1:045 & E. Reimbursement provisions and requirements regarding community mental health center services.
A motion was made and seconded to approve the following amendments: (1) to amend Section 3 to delete medication assisted treatment for a substance use disorder and its per diem unit of service from the table establishing the payments based on units of service; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 2, 3, 5, and 8 to comply with the drafting and formatting requirements of KRS Chapter 13A; (3) to amend Sections 2 and 3 to delete provisions that duplicated provisions established elsewhere in the administrative regulation and in 907 KAR 1:044; and (4) to amend Section 3 to change a unit of service for therapeutic rehabilitation from one hour to 15 minutes. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 1:054 & E. Coverage provisions and requirements regarding federally-qualified health center services, federally-qualified health center look-alike services, and primary care center services.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to: (a) insert definitions for “licensed assistant behavior analyst”, “licensed behavior analyst”, “licensed professional art therapist”, and “licensed professional art therapist associate”; and (b) delete the definitions of “club house model of psychosocial rehabilitation” and “fountain house”; (2) to amend Section 4 to: (a) delete requirements that the supervising professional also be the billing provider for the service; (b) update the list of providers authorized to provide given services; (c) delete authorization for medication assisted treatment for a substance use disorder; (d) clarify requirements for service planning and for therapeutic rehabilitation program services; (e) authorize group outpatient therapy for groups not to exceed twelve (12), rather than eight (8), individuals; and (f) authorize intensive outpatient program services with a recipient-to-staff ratio of ten (10) to one (1), rather than fifteen (15) to one; (3) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 3 and 4 to specify that this administrative regulation also applies to federally qualified health center look-alike services; (4) to amend Sections 1 through 4, 8, 11, 12, 15, and 16 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (5) to amend Section 8 to delete provisions that duplicated provisions established elsewhere in the administrative regulation. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 1:082 & E. Coverage provisions and requirements regarding rural health clinic services.
Dr. Wheeler stated that the Kentucky Coalition of Nurse Practitioners or Nurse Midwives supported this administrative regulation.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to: (a) insert definitions for “licensed assistant behavior analyst”, “licensed behavior analyst”, “licensed professional art therapist”, and “licensed professional art therapist associate”; and (b) delete the definitions of “club house model of psychosocial rehabilitation” and “fountain house”; (2) to amend Section 3 to: (a) delete requirements that the supervising professional also be the billing provider for the service; (b) update the list of providers authorized to provide given services; (c) delete authorization for medication assisted treatment for a substance use disorder; (d) clarify requirements for service planning and for therapeutic rehabilitation program services; (e) authorize group outpatient therapy for groups not to exceed 12, rather than eight, individuals; and (f) authorize intensive outpatient program services with a recipient-to-staff ratio of 10 to one, rather than 15 to one; (3) to amend Sections 1 through 4, 8, 11, 14, and 15 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (4) to amend Section 8 to delete provisions that duplicated provisions established elsewhere in the administrative regulation. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 1:631 & E. Vision Program reimbursement provisions and requirements.
Ms. Eakin stated that the Kentucky Optometric Association supported this administrative regulation.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1, 2, and 5 to comply with the drafting and formatting requirements of KRS Chapter 13A; (2) to amend Section 1 to define “CPT code” and “usual and customary charge”; (3) to amend Section 2 to delete provisions that are established in 907 KAR 1:632; (4) to amend Section 5 to change references from “twelve (12) consecutive month period” to “calendar year”; and (5) to amend Section 10 to update the material incorporated by reference. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 1:632 & E. Vision Program coverage provisions and requirements.
Ms. Eakin stated that the Kentucky Optometric Association supported this administrative regulation.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1 through 4 and 11 to comply with the drafting and formatting requirements of KRS Chapter 13A; (2) to amend Section 2 to: (a) specify that a physician shall be an authorized provider of vision services; and (b) delete provisions that are established in 907 KAR 1:631; (3) to amend Section 3 to specify that vision service coverage is limited to a service listed with a CPT code or an item with an HCPCS code on the fee schedule; (4) to amend Section 4 to specify that provisions regarding any limit on the number of eyeglasses covered shall be as established in 907 KAR 1:631; and (5) to amend Section 14 to update the material incorporated by reference. Without objection, and with agreement of the agency, the amendments were approved.
Payments and Services
907 KAR 3:005 & E. Coverage of physicians' services.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1 through 8 and 10 to comply with the drafting and formatting requirements of KRS Chapter 13A; (2) to amend Section 1 to define “advanced practice registered nurse”, “locum tenens APRN”, and “locum tenens physician”; (3) to amend Section 3 to specify that direct physician contact is not required for a locum tenens APRN who provides direct APRN contact; and (4) to amend Section 6 to clarify prior authorization requirements. Without objection, and with agreement of the agency, the amendments were approved.
Occupational, Physical, and Speech Therapy
907 KAR 8:005 & E. Definitions for 907 KAR Chapter 8.
A motion was made and seconded to approve the following amendments: to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs 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.
907 KAR 8:010 & E. Independent occupational therapy service coverage provisions and requirements.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 2, 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.
907 KAR 8:015 & E. Independent occupation therapy service reimbursement provisions and requirements.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1, 2, and 5 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (2) to amend Section 1 to delete provisions that repeated 907 KAR 8:010. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 8:020 & E. Independent physical therapy service coverage provisions and requirements.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 2, 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.
907 KAR 8:025 & E. Physical therapy service reimbursement provisions and requirements.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 2, and 5 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (2) to amend Section 1 to delete provisions that repeated 907 KAR 8:020. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 8:030 & E. Independent speech pathology service coverage provisions and requirements.
A motion was made and seconded to approve the following amendments: to amend the TITLE; the NECESSITY, FUNCTION, AND CONFORMITY paragraph; and Sections 1 through 5, 7, 8, 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.
907 KAR 8:035 & E. Speech language pathology service reimbursement provisions and requirements.
A motion was made and seconded to approve the following amendments: to amend the TITLE; the NECESSITY, FUNCTION, AND CONFORMITY paragraph; and Sections 1, 2, and 5 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Hospital Service Coverage and Reimbursement
907 KAR 10:014 & E. Outpatient hospital service coverage provisions and requirements.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to: (a) add definitions for “certified alcohol and drug counselor”, “licensed assistant behavior analyst”, “licensed behavior analyst”, “licensed professional art therapist”, and “licensed professional art therapist associate”; and (b) revise the definitions of “licensed psychological associate” and “licensed psychological practitioner”; (2) to amend Section 5 to: (a) update the list of providers authorized to provide specific services; and (b) authorize intensive outpatient program services with a recipient-to-staff ratio of 10 to one, rather than 15 to one; (c) clarify the requirements for partial hospitalization; and (d) authorize group outpatient therapy for groups not to exceed 12, rather than eight, individuals; (3) to amend Sections 1 through 8, 10, 11, and 13 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (4) to amend Sections 2 and 5 to delete provisions established elsewhere in this administrative regulation. Without objection, and with agreement of the agency, the amendments were approved.
Private Duty Nursing
907 KAR 13:005 & E. Definitions for 907 KAR Chapter 13.
A motion was made and seconded to approve the following amendments: to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs 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.
907 KAR 13:010 & E. Private duty nursing service coverage provisions and requirements.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1, 2, 3, 8, and 11 to comply with the drafting requirements of KRS Chapter 13A; and (2) to amend Section 2 to specify that the limit for private duty nursing services is based on a 12 consecutive month period, rather than annually. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 13:015 & E. Private duty nursing service reimbursement provisions and requirements.
A motion was made and seconded to approve the following amendments: (1) to amend the TITLE; the NECESSITY, FUNCTION, AND CONFORMITY paragraph; and Sections 1 through 4 to clarify that this administrative regulation also established reimbursement provisions for private duty nursing supplies; (2) to amend Sections 2 and 5 to comply with the drafting requirements of KRS Chapter 13A; and (3) to create a new Section 6 to incorporate by reference the Private Duty Nursing Supplies Fee Schedule. Without objection, and with agreement of the agency, the amendments were approved.
Behavioral Health
907 KAR 15:005 & E. Definitions for 907 KAR Chapter 15.
A motion was made and seconded to approve the following amendments: to amend Section 1 to: (1) define “approved behavioral health services provider”, “licensed assistant behavior analyst”, “licensed behavior analyst”, “licensed art therapist”, and “licensed professional art therapist associate”; 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.
907 KAR 15:010 & E. Coverage provisions and requirements regarding behavioral health services provided by independent providers.
A motion was made and seconded to approve the following amendments: (1) to amend Section 3 to: (a) update the list of providers authorized to provide given services; (b) delete medication assisted treatment for a substance use disorder from the list of covered services; (c) authorize group outpatient therapy for groups not to exceed 12, rather than eight, individuals; (d) authorize intensive outpatient program services with a recipient-to-staff ratio of 10 to one, rather than 15 to one; and (e) establish requirements for billing providers; 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.
907 KAR 15:015 & E. Reimbursement provisions and requirements for behavioral health services provided by independent providers.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2 to: (a) update the list of providers authorized to be reimbursed for providing given services; and (b) specify that reimbursement for various services shall be as stated on the Non-Medicare Services Fee Schedule; and (2) create a new Section 6 to incorporate by reference the Non-Medicare Services Fee Schedule. Without objection, and with agreement of the agency, the amendments were approved.
Department for Behavioral Health, Developmental and Intellectual Disabilities: Division for Behavioral Health: Mental Health
908 KAR 2:240 & E. Kentucky Youth Peer Support Specialist. Mary Begley, commissioner; Ijeoma Eneje, regulation coordinator; Beth Jordan, branch manager; Vestena Robbins, policy advisor; Kara Fresh, program administrator; and Natalie Kelly, division director, represented the cabinet.
In response to a question by Representative Damron, Ms. Begley stated that provider groups were in support of these administrative regulations.
In response to a question by Senator Gregory, Ms. Begley stated that these administrative regulations, both of which were new administrative regulations, were the result of Medicaid expansion pursuant to the Affordable Care Act.
A motion was made by Senator Gregory and seconded by Representative Turner to find these administrative regulations deficient due to lack of statutory authority. A roll call vote was conducted, and, with four votes to find these administrative regulations deficient, three votes against a finding of deficiency, and one member absent, the motion failed. A majority vote of at least five votes for a finding of deficiency is required for the motion to pass.
Representative Damron stated that he voted against finding these administrative regulations deficient because they established standards for the Kentucky Youth Peer Support program. Without these administrative regulations, the program would be without protocol.
A motion was made and seconded to approve the following amendments: (1) to amend Section 7 to: (a) insert a new list of professionals that can serve as a KYPSS supervisor; and (b) require a written record of supervision; (2) to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to add statutory citations; (3) to amend Section 1 to add a definition for "child-serving agency"; (4) to amend Section 3 to establish standards for the department to approve the required training courses; (5) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 8 to clarify various provisions; (6) to amend the training application to align the application with the requirements of this administrative regulation; and (7) to amend Sections 1, 3, 6, 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.
908 KAR 2:250 & E. Community support associate; eligibility criteria and training.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2 to: (a) insert a new list of professionals who may serve as a community support associate supervisor; and (b) require a written record of supervision; (2) to amend Section 1 to delete unnecessary definitions; and (3) to amend Sections 1 through 3 to clarify various provisions. Without objection, and with agreement of the agency, the amendments were approved.
OTHER BUSINESS:
ENERGY AND ENVIRONMENT CABINET: Department for Environmental Protection: Division of Water
401 KAR 10:031. Surface water standards. Peter Goodmann, executive director; Randall Payne, environmental scientist III; and Bruce Scott, commissioner, represented the division. Ted Withrow, Kentuckians for the Commonwealth, appeared in opposition to this administrative regulation.
In response to questions by Representative Turner, Mr. Scott stated that the division became aware of the December 27, 2013 letter from Virgil Lee Andrews, Jr., field office supervisor, U.S. Fish and Wildlife, to Annie Godfrey, chief, Water Quality Standards Section, U.S. Environmental Protection Agency (EPA), in February 2014. The letter addressed an issue of consultation between U.S. Fish and Wildlife and U.S. EPA. The issue concerned the selenium standard established in 401 KAR 10:031. The main concern by U.S. Fish and Wildlife was the division’s lack of peer review regarding the studies used to support the selenium standard. The division was not a direct party to the letter. U.S. EPA had approved the standard and disagreed with concerns expressed by U.S. Fish and Wildlife. U.S. EPA was drafting a response letter to U.S. Fish and Wildlife and was working on a national fish-tissue based selenium standard, which would probably differ from Kentucky’s standard because it would be a national standard. U.S. EPA approved the Kentucky standard after considering U.S. Fish and Wildlife’s concerns regarding threatened and endangered species. There was also on-going litigation regarding U.S. EPA’s approval of the standard and a second notice of intent to litigate on the same issue. The standard was comparable or more stringent than many other states, and the division believed it to be a protective standard. Analytical methods were the same from state to state because they were based on federally approved methods. The division considered U.S. EPA’s approval to be a form of peer review, and the matter had been fully vetted at the federal level. The standard was determined based on science, not politics, and the division believed that more selenium impairments would be identified with this standard and method than the previous method. Numerous studies were listed from the past 20 years to support that selenium was not a significant problem in Kentucky waterways.
Representative Turner thanked the agency for appearing and stated that the General Assembly had the authority to establish the standard through the legislative process and that he looked forward to more studies and information from the division regarding selenium.
Mr. Withrow stated that he was formerly employed by the Division of Water, and that this administrative regulation was insufficient to prevent selenium contamination. Outstanding State Resource Waters were rare, and there were only approximately 100 miles of waters in that classification. The public meetings conducted regarding this administrative regulation were really private meetings by invitation of the division. U.S. EPA was one (1) step in the process but did not constitute full peer review. The scientific studies used to support the standard were “cherry picked.” Outfields were not previously monitored. The analytical method was difficult and expensive for the agency to sufficiently monitor, and because of the method’s difficulty and expense watchdog oversight would not be feasible. This administrative regulation was a gift to the coal industry.
Senator Kerr requested that Subcommittee members be provided with more information about the Subcommittee’s duties, powers, and history, especially the reason for the creation of this Subcommittee. She stated that there was a pattern of a lack of respect toward the Subcommittee by those submitting testimony from the Executive Branch.
In response to questions by Senator Kerr, Subcommittee staff stated that some matters may be established or amended through legislation, but that the Subcommittee had limits based on case law, especially LRC v. Brown and Patton v. Sherman. Subcommittee staff stated that information would be personally provided to Senator Kerr about the Subcommittee’s duties, powers, and history.
The following administrative regulations were deferred to the June 10, 2014, meeting of the Subcommittee:
GENERAL GOVERNMENT CABINET: Board of Barbering: Board
201 KAR 14:085. Sanitation requirements.
Board of Nursing: Board
201 KAR 20:360. Evaluation of prelicensure registered nurse and practical nurse programs.
Board of Physical Therapy: Board
201 KAR 22:160. Telehealth and telephysical therapy.
Board of Licensure for Professional Art Therapists: Board
201 KAR 34:060. Qualifying experience under supervision.
JUSTICE AND PUBLIC SAFETY CABINET: Department of Corrections: Office of the Secretary
501 KAR 6:020. Corrections policies and procedures. Amy Barker, assistant general counsel, represented the department.
In response to questions by Co-Chair Bell, Ms. Barker stated that this administrative regulation provided for an extension of time to address an inmate grievance if necessary to adequately investigate. The term “contraband” was amended to create parity for the term across the program. The term “cross-gender search” was amended to insert a word that was inadvertently missing. The term “exigent circumstances” changed “facility” to “institution.” A waiver was required of media in case of injury because it was impossible to 100 percent guarantee safety.
In response to a question by Co-Chair Harris, Ms. Barker stated that the intent of this administrative regulation was not to limit media access but to establish security measures pertaining to media situations. Ms. Barker agreed to defer consideration of this administrative regulation, as amended, to the June 10 Subcommittee meeting.
A motion was made and seconded to approve the following amendments: (1) to amend CPP 1.2, News Media, to: (a) establish the conditions under which an interview request may be denied; and (b) clarify identification requirements; (2) to amend CPP 9.8, Search Policy, to clarify definitions for contraband, cross-gender searches, and exigent circumstances; and (3) to amend Section 1 to change the edition dates for those revised policies. Without objection, and with agreement of the agency, the amendments were approved.
TRANSPORTATION CABINET: Department of Highways: Division of Maintenance: Billboards
603 KAR 10:001. Definitions.
603 KAR 10:010. Static advertising devices.
603 KAR 10:020. Electronic advertising devices.
603 KAR 10:030. Removal of vegetation related to advertising devices.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Medicaid Services: Hospital Service Coverage and Reimbursement
907 KAR 10:825. Diagnosis-related group (DRG) inpatient hospital reimbursement.
The Subcommittee adjourned at 3:10 p.m. until June 10, 2014 at 1 p.m.