Call to Order and Roll Call
The 1st meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, June 10, 2014, at 1:00 PM, in Room 149 of the Capitol Annex. Senator Ernie Harris, Co-Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Ernie Harris, Co-Chair; Senators Perry B. Clark, Sara Beth Gregory, and Alice Forgy Kerr; Representatives Robert R. Damron, Jimmie Lee, and Tommy Turner.
Guests: Gary Stephens, Education Professional Standards Board; Maryellen Allen, State Board of Elections; Lynn Zellen, Office of the Secretary of State; Rob Carter, Mike Grammer, Garry Morris, Department of Revenue; Carolyn Reed, Michael Rodman, Board of Medical Licensure; Sonja Minch, Francis Simpson; Board of Barbering; Jonathan Buckley, David Cox, Board of Licensure for Professional Engineers and Land Surveyors; Nathan Goldman, Board of Nursing; Mark Brengelman, Scott Majors, Board of Physical Therapy; James Grawe, Margaret Hazlette, Board of Social Work; Stewart Bridgman, James Grawe, Board of Licensure for Professional Art Therapists; Angela Evans, Board for Applied Behavior Analysts; Karen Waldrop, David Wicker; Department of Fish and Wildlife Resources; Amy Barker; Department of Corrections; Chad Collins, Amy Peabody, Julian Tackett, Department of Education; Greg Dearing, Anne-Tyler Morgan, Bruce Roberts, Gilbert Robinson, State Fire Commission; Russell Coy, DJ Wasson, Clark Williams, Department of Insurance; Jack Coleman, Phil Craig, Michael Davis, Gary Feck, Dale Spicer, Steve Willinghurst; Deborah Anderson, Alice Blackwell, Mike Handy, Stuart Owen, Phyllis Sosa, Mary Sparrow, Steven Veno, Cabinet for Health and Family Services; Nick D'Andrea, UPS; Sean Dreisbach, Jeffersontown Fire Department.
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, June 10, 2014, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
EDUCATION PROFESSIONAL STANDARDS BOARD: Teaching Certificates
16 KAR 2:010. Kentucky teaching certificates. Gary Stephens, staff attorney, represented the board.
A motion was made and seconded to approve the following amendments: to amend Sections 2, 4, 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.
SECRETARY OF STATE: Address Confidentiality Program
30 KAR 6:010 & E. Kentucky address confidentiality program. Maryellen Allen, executive director, and Lynn Zellen, director of communications, represented the office of the Secretary of State.
In response to questions by Co-Chair Harris, Ms. Zellen stated that victims of crimes such as sexual assault, stalking, domestic violence, and crimes against minors were included as victims who may apply to keep their addresses out of publicly available voter records and who may vote by absentee ballot. This administrative regulation protected victims from the release of their addresses and from the potential risk of appearing at a polling place.
In response to questions by Representative Damron, Ms. Zellen stated that the voter records from which the addresses were omitted were the same records used by candidates for campaign purposes. There was an application process, and victims were not automatically placed on the protected list. There was a process by which a victim may withdraw from the protected list, and the protection expired every two years. After the expiration, the victim may opt to apply again.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 3 and 8 to include an additional relevant statutory citation; and (2) to amend Section 11 to correct the agency's email address in three (3) of the forms incorporated by reference. Without objection, and with agreement of the agency, the amendments were approved.
FINANCE AND ADMINISTRATION CABINET: Department of Revenue: Office of Sales and Excise Taxes: Selective Excise Tax; Motor Fuels
103 KAR 43:330. Measurement of compressed natural gas (CNG) and liquefied natural gas (LNG) in gallons. Mike Grammer, assistant director, and Gary Morris, policy advisor, represented the office. Nick D’Andrea, director, United Parcel Service, appeared in support of this administrative regulation.
Mr. D’Andrea thanked the office for amending this administrative regulation.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to delete a superfluous statutory citation; (2) to amend Sections 1 through 3 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (3) to amend Section 2(3) to delete “or 1.52 gallons” from the conversion rate for liquefied natural gas (LNG), so that the conversion rate is now “6.06 pounds” of LNG to “one (1) gallon of special fuels.” Without objection, and with agreement of the agency, the amendments were approved.
GENERAL GOVERNMENT CABINET: Board of Medical Licensure: Board
201 KAR 9:301. Repeal of 201 KAR 9:300. Carolyn Reed, licensure coordinator, and Michael Rodman, executive director, represented the board.
201 KAR 9:305. Continued licensure of athletic trainers.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs and Section 2 to correct statutory citations; and (2) to amend Section 2 to clarify that the required HIV/AIDS course shall count as part of the required number of continuing education units. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 9:307. Fee schedule regarding athletic trainers.
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.
Board of Barbering: Board
201 KAR 14:085. Sanitation requirements. Sonja Minch, administrator, and Francis Simpson, chair, represented the board.
In response to questions by Co-Chair Harris, Ms. Minch stated that the board had been working to educate licensees regarding new sanitation requirements, the most significant of which was the requirement that the concentration of alcohol required for disinfectants was changing from 70 to 90 percent. There should be no cost associated with the change.
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 6 and 12 through 15 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (3) to amend Sections 13, 14, and 15 to re-insert sanitation requirements that had been inadvertently deleted. Without objection, and with agreement of the agency, the amendments were approved.
Board of Licensure for Professional Engineers and Land Surveyors: Board
201 KAR 18:192. Continuing professional development for professional land surveyors. Jonathan Buckley, general counsel, and David Cox, executive director, represented the board.
A motion was made and seconded to approve the following amendments: to amend Sections 1 through 6 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.
Board of Nursing: Board
201 KAR 20:056. Advanced practice registered nurse licensure and certification requirements. 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 Section 3 to change references for the American Academy of Nurse Practitioners to the American Association of Nurse Practitioners to conform to the name change of the national certifying organization; and (2) to amend Sections 2, 6, 7, 11, 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 20:057. Scope and standards of practice of advanced practice registered nurses.
In response to a question by Co-Chair Harris, Mr. Goldman stated that no comments were received during the public comment period.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add a statutory citation; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; (3) to amend Sections 1, 2, 9, and 11, and the material incorporated by reference to comply with the drafting and formatting requirements of KRS Chapter 13A; and (4) to amend Section 11 to change references for the American Academy of Nurse Practitioners to the American Association of Nurse Practitioners to conform to the name change of the national certifying organization. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 20:161. Investigation and disposition of complaints.
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 Sections 1, 2, 4, and 5 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 20:360. Evaluation of prelicensure registered nurse and practical nurse programs.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1, 2, 3, and 5 to comply with the drafting requirements of KRS Chapter 13A; and (2) to amend Section 1 to clarify what constitutes "progress" by adding the factors for evaluating a program on monitoring status and if the program will obtain full approval or be placed on conditional approval status. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 20:370. Applications for licensure.
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 relevant statutory citations; (2) to amend Section 1 to comply with the drafting requirements of KRS Chapter 13A; and (3) to revise material incorporated by reference to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 20:411. Sexual Assault Nurse Examiner Program standards and credential requirements.
A motion was made and seconded to approve the following amendments: to amend Section 2 and the material incorporated by reference to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 20:450. Alternative program.
In response to questions by Co-Chair Harris, Ms. Schenk stated that the term, “chemical dependency” was being changed to “substance abuse disorder” to reflect the same change in the Diagnostic and Statistical Manual. The manual was changed to broaden the term to include those confronting a similar situation but who did not qualify as chemically dependent. The change was mainly one of nomenclature more than a distinction in the effect.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; and (2) to amend Sections 1, 2, 3, and 7 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Board of Physical Therapy: Board
201 KAR 22:040. Procedure for renewal or reinstatement of a credential for a physical therapist or a physical therapist assistant. Mark Brengelman, counsel, and Scott Majors, 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, 3, and 4 to comply with the drafting and formatting 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 22:160. Telehealth and telephysical therapy.
In response to questions by Co-Chair Harris, Mr. Majors stated that physical therapy activities that may be done through telehealth included consultations, evaluations, education, assessments, and intervention. This administrative regulation only authorized telehealth as appropriate. The board had discussed professional consultation via telehealth between multiple providers with the same patient, but had yet to address robotic physical therapy via telehealth-like technology.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to add a statutory citation; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; (3) to amend Sections 1, 2, and 3 to comply with the drafting requirements of KRS Chapter 13A; and (4) 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 Social Work: Board
201 KAR 23:015. Temporary permission to practice. Jim Grawe, assistant attorney general, and Margaret Hazlette, executive director, represented the board.
A motion was made and seconded to approve the following amendments: to amend Section 1 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Board of Licensure for Professional Art Therapists: Board
201 KAR 34:060. Qualifying experience under supervision. Stewart Bridgman, board member, and Jim Grawe, assistant attorney general, represented the board.
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 the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 9 to comply with the drafting and formatting requirements of KRS Chapter 13A; (3) to amend Section 3 to establish that the supervisory agreement shall include the number of hours of face-to-face supervision and how it shall be obtained; (4) to amend Section 5 to establish that the board may grant a limited waiver from the face-to-face supervision requirements upon written request by the supervisor and supervisee; (5) to amend Section 8 for temporary supervision of an associate in cases of extenuating circumstances to establish a time frame of notifying the board of these circumstances within ten (10) days; and (6) 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.
Kentucky Applied Behavior Analysis Licensing Board: Board
201 KAR 43:100. Telehealth and telepractice. Angela Evans, assistant attorney general, represented the board.
In response to a question by Co-Chair Harris, Ms. Evans stated that appropriately administered telehealth and telepractice was trending in an effort to increase access to providers.
A motion was made and seconded to approve the following amendments: (1) to amend the TITLE to make a technical correction; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; and (3) to amend Sections 1 through 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.
TOURISM, ARTS AND HERITAGE CABINET: Department of Fish and Wildlife Resources: Game
301 KAR 2:300. Black bear seasons and requirements. Karen Waldrop, wildlife division director, and David Wicker, general counsel, represented the department.
A motion was made and seconded to approve the following amendments: to amend Section 10 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
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.
A motion was made and seconded to approve the following amendments: (1) to amend the Media Release form attached to CPP 1.2 to delete the portion of the form that required a member of the media to release the department from liability for any injury incurred at a facility before being allowed access to the facility; and (2) to amend Section 1 to change the edition date for the revised policy. Without objection, and with agreement of the agency, the amendments were approved.
At the May 13, 2014 meeting of the Administrative Regulation Review Subcommittee, a motion was made and seconded to approve the following amendments: (1) to amend CPP 1.2, News Media, to specify under what conditions an interview request may be denied and to 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.
501 KAR 6:999. Corrections secured policies and procedures.
This administrative regulation was reviewed and amended, without objection and with agreement of the agency, by the subcommittee in closed session pursuant to KRS 61.810(1)(k), 61.815(2), and 197.025(6).
EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Board of Education: Department of Education: School Terms, Attendance and Operation
702 KAR 7:065. Designation of agent to manage middle and high school interscholastic athletics. Chad Collins, general counsel, and Julian Tackett, commissioner, represented the Kentucky High School Athletic Association. Amy Peabody, assistant general counsel, represented the board.
In response to questions by Co-Chair Harris, Mr. Tackett stated that restrictions regarding a student athlete who followed a coach to a different school are not automatic. The transfer would be discussed at a hearing to consider if restrictions should apply. The trend was to penalize school personnel involved in these situations, rather than the student athletes who are usually not responsible for the infractions.
In response to a question by Representative Damron, Mr. Tackett stated that public comments were supportive of this administrative regulation. Representative Damron thanked the Kentucky High School Athletic Association for moving in the direction of penalizing the school officials, rather than the student athletes. He thanked Mr. Tackett for always handling emotional issues in a positive and professional way.
A motion was made and seconded to approve the following amendments: to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Sections 2, 3, and 5: (1) for technical corrections; and (2) to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
KENTUCKY COMMUNITY AND TECHNICAL COLLEGE SYSTEM: Kentucky Fire Commission: Commission on Fire Protection Personnel Standards and Education
739 KAR 2:090. Candidate Physical Ability Test. Anne-Tyler Morgan, counsel, and Bruce Roberts, division director, represented the commission. Sean Dreisbach, chief, Jeffersontown Fire Department, appeared in support of this administrative regulation.
In response to a question by Senator Clark, Mr. Roberts stated that the commission considered training styles that were gender appropriate, and the commission’s 25 year training program had been validated through the court system to provide effective training for both genders. Up to two practice sessions were available prior to testing.
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; (2) to amend Section 1 to insert a definition for “professional firefighter” to clarify that administrative and part-time personnel are not professional firefighters; and (3) to amend Sections 1 through 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.
PUBLIC PROTECTION CABINET: Department of Insurance: Financial Standards and Examination Division: Insurance Premium Finance Companies
806 KAR 30:020. Abuse of minimum service charge. Russell Coy, program manager, and DJ Wasson, administrative coordinator, represented the division.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to cite to the service charge established in KRS 304.30-090(3); 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.
Division of Insurance Fraud Investigation: Insurance Fraud
806 KAR 47:010. Designation of a contact person. DJ Wasson, administrative coordinator, and Clark Williams, division director, represented the division.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY 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; and (3) to amend Section 1 to make a technical correction. Without objection, and with agreement of the agency, the amendments were approved.
Department of Housing, Buildings and Construction: Division of Building Code Enforcement: Kentucky Building Code
815 KAR 7:120. Kentucky Building Code. Jack Coleman, deputy commissioner; Michael Davis, general counsel; and Gary Feck, director, represented the division.
815 KAR 7:125. Kentucky Residential Code.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Medicaid Services: Supports for Community Living Waiver
907 KAR 12:020E. Reimbursement for new Supports for Community Living waiver services. Alice Blackwell, assistant director, and Stuart Owen, regulation coordinator, represented the cabinet.
Mr. Owen stated that the department’s telehealth provisions were established by statute. The goal was to increase accessibility, especially to remote areas of Kentucky.
Division of Policy and Operations: Veterans Affairs Nursing Facilities
907 KAR 18:001 & E. Definitions for 907 KAR Chapter 18.
A motion was made and seconded to approve the following amendments: to amend Section 1 to: (1) comply with the drafting and formatting requirements of KRS Chapter 13A; and (2) add a definition for “regular part-time employee.” Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 18:005 & E. Reimbursement provisions and requirements regarding Veterans Affairs nursing facility services.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1, 3 through 6, 14, and 15 to establish provisions to cover prescription drugs as part of the services at a Veterans Affairs nursing facility; (2) to amend Section 5 to delete outdated provisions; and (3) to amend Sections 2 through 6 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.
Department for Aging and Independent Living: Division of Guardianship: Guardianship
910 KAR 2:040. Service provisions for adult guardianship. Mike Handy, branch manager, and Phyllis Sosa, staff assistant, represented the cabinet.
In response to questions by Senator Gregory, Ms. Sosa stated that the change regarding Do Not Resuscitate (DNR) orders still required nurse consultation, but was no longer limited to a Department for Community Based Services nurse.
In response to a question by Co-Chair Harris, Ms. Sosa stated that there had been complaints that the DNR order process was too slow; however, the division was committed to a thorough process because these were life and death issues.
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; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 6, 7, 15, 16, 19, 22, 25, and 26 to comply with the drafting and formatting requirements of KRS Chapter 13A and for technical corrections. Without objection, and with agreement of the agency, the amendments were approved.
Department for Income Support: Child Support Enforcement: Family Support
921 KAR 1:430. Child support administrative hearings. Mary Sparrow, policy analyst, and Steve Veno, commissioner, represented the cabinet.
Other Business: Co-Chair Harris announced that Co-Chair Bell had resigned his seat on this subcommittee. He also introduced new staff member, Angela Bertholf, who will serve as assistant to the Compiler.
The following administrative regulations were deferred to the July 8, 2014, meeting of the subcommittee:
GENERAL GOVERNMENT CABINET: Board of Licensure for Massage Therapy: Board
201 KAR 42:035. Application process, exam, and curriculum requirements.
201 KAR 42:040. Renewal.
201 KAR 42:060. Code of ethics and standards of practice for massage therapists.
201 KAR 42:080. Programs of massage therapy instruction.
201 KAR 42:110. Continuing education requirements.
TRANSPORTATION CABINET: Kentucky Bicycle and Bikeways Commission: Motorcycle and Bicycle Safety
601 KAR 14:020. Bicycle Safety standards.
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.
PUBLIC PROTECTION CABINET: Department of Insurance: Financial Standards and Examination Division: Health Maintenance Organizations
806 KAR 38:100. Risk-based capital for health organizations.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Public Health: Controlled Substances
902 KAR 55:090. Exempt anabolic steroid products.
Department for Medicaid Services: Hospital Service Coverage and Reimbursement
907 KAR 10:825. Diagnosis-related group (DRG) inpatient hospital reimbursement.
The subcommittee adjourned at 2:10 p.m. until July 8, 2014 at 1 p.m.