Call to Order and Roll Call
The November meeting of the Administrative Regulation Review Subcommittee was held on Friday, November 14, 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; Senators Sara Beth Gregory and Alice Forgy Kerr; Representatives Robert R. Damron and Jimmie Lee.
Guests: Alicia Sneed, Education Professional Standards Board; Sharron Burton, Department of Employee Insurance, Personnel; Doug Hendrix, Katrina LeMay, Finance and Administration Cabinet; Chris Griffith, Brian Judy, Board of Licensed Professional Counselors; Ron Brooks, David Wicker, Karen Waldrop, Department of Fish and Wildlife Resources; Michael Haines, Steve Hohmann, Department for Natural Resources; Amy Barker, Department of Corrections; Kay Kennedy, Amy Peabody, Department of Education; Kristi Culpepper, School Facilities Construction Commission; Malinda Shepherd, DJ Wasson, Department of Insurance; Marc Guilfoil, Katherine Paisley, Horse Racing Commission; Stephanie Brammer-Barnes, Stephanie Craycraft, Beth Junek, Natalie Kelly, Maryellen Mynear; Cabinet for Health and Family Services.
LRC Staff: Donna Little, Emily Caudill, Sarah Amburgey, Carrie Klaber, Karen Howard, Emily Harkenrider, Ange Bertholf, and Betsy Cupp.
The Administrative Regulation Review Subcommittee met on Friday, November 14, 2014, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
EDUCATION PROFESSIONAL STANDARDS BOARD: Teaching Certificates
16 KAR 2:120. Emergency certification and out-of-field teaching. Alicia Sneed, director of legal services, represented the board.
In response to a question by Co-Chair Harris, Ms. Sneed stated that “out-of-field teaching” included teaching pursuant to a teaching certificate but outside of the teacher's content area. “Out-of-field teaching” was necessary, on an emergency basis, because some districts could not obtain a teacher with specific content background, even one without a teaching certificate.
PERSONNEL CABINET: Office of the Secretary: Personnel Cabinet, Classified
101 KAR 2:210 & E. 2015 Plan Year Handbook for the Public Employee Health Insurance Program. Sharron Burton, general counsel for the health plan, represented the cabinet.
FINANCE AND ADMINISTRATION CABINET: Commonwealth Office of Technology: General Administration
200 KAR 1:015. Data Breach Notification Forms. Doug Hendrix, deputy general counsel, and Katrina LeMay, chief of information and security, represented the cabinet.
In response to a question by Co-Chair Harris, Ms. LeMay stated that COT had not experienced any security breaches thus far in calendar year 2014.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct 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 Section 1 to comply with the drafting requirements of KRS Chapter 13A; and (4) to amend Section 2 and the material incorporated by reference for clarity. Without objection, and with agreement of the agency, the amendments were approved.
GENERAL GOVERNMENT CABINET: Board of Licensed Professional Counselors: Board
201 KAR 36:060. Qualifying experience under supervision. Chris Griffith, chair, and Brian Judy, assistant attorney general, represented the board.
In response to a question by Co-Chair Harris, Mr. Griffith stated that the requirement to allow supervision changed from six (6) to twelve (12) supervisees to ensure a sufficient number of supervisors in the appropriate discipline. The board expected the transition from six (6) to twelve (12) supervisees to be a gradual process, rather than a sudden event.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1, 3, 5, 6, 8, and 9 to comply with the drafting and formatting requirements of KRS Chapter 13A; (2) to amend Section 1 to add a definition for "supervisor of record"; (3) to amend Section 3 to: (a) clarify that a supervisor of record shall be a licensed professional clinical counselor; and (b) establish examples of what circumstances the board may consider for showing that the ability to obtain supervision from a licensed professional clinical counselor is prohibited by difficulty; (4) to amend Section 5 to establish examples of what extenuating circumstances the board may consider in granting a limited waiver from the requirement of one (1) monthly direct in person meeting to satisfy the face-to-face supervision requirements; and (5) to amend the Supervisory Agreement form to; (a) comply with the drafting requirements of KRS Chapter 13A; and (b) update the number of supervisees that a supervisor of record shall be responsible for from six (6) to twelve (12) so that the form is consistent with the administrative regulation. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 36:070. Education and examination requirements.
A motion was made and seconded to approve the following amendments: (1) to amend the TITLE and Sections 1 and 5 to comply with the drafting and formatting requirements of KRS Chapter 13A; (2) to amend the RELATES TO paragraph to add a statutory citation; (3) 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 (4) to amend Section 4 to establish the application requirements for licensure. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 36:080. Inactive and retired licensure status.
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.
TOURISM, ARTS AND HERITAGE CABINET: Department of Fish and Wildlife Resources: Fish
301 KAR 1:152. Asian Carp and Scaled Rough Fish Harvest Program. Ron Brooks, fisheries director; Karen Waldrop, wildlife division director; and David Wicker, general counsel, represented the department.
In response to a question by Co-Chair Harris, Mr. Brooks stated that Asian Carp were used for fish meal and fish paste. Thus far, there had been little progress in stopping encroachment of Asian Carp; however, the department expected three (3) Asian Carp processing facilities to begin operating soon, which may assist with the problem.
301 KAR 1:220. Reciprocal agreements regarding fishing.
A motion was made and seconded to approve the following amendments: to amend Sections 1 through 9 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Game
301 KAR 2:225 & E. Dove, wood duck, teal, and other migratory game bird hunting.
ENERGY AND ENVIRONMENT CABINET: Department for Natural Resources: Division of Mine Permits: Permits
405 KAR 8:030 & E. Surface coal mining permits. Michael Haines, general counsel, and Steve Hohmann, commissioner, 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 statutory citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; and (3) to amend Sections 1 through 5, 11 through 17, 19 through 28, 30, 32, and 34 through 37 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
405 KAR 8:040 & E. Underground coal mining permits.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to correct statutory citations; (2) to amend 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 5, 11 through 30, 32, and 34 through 38 to comply with the drafting and formatting 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 6:050. Luther Luckett Correctional Complex. Amy Barker, assistant general counsel, represented the department.
In response to questions by Co-Chair Harris, Ms. Barker stated that this administrative regulation represented the annual review for this facility. The Luther Luckett Correctional Complex had not experienced any problems recently.
A motion was made and seconded to approve the following amendments: (1) to amend LLCC 09-25-01, 10-01-01, 12-01-01, 14-03-01, 15-01-04, 17-03-01, 19-01-02, 23-01-01, and 23-01-03 to make minor clarifications and update cross-references; and (2) to amend Section 1 to update the edition date of the revised policies. Without objection, and with agreement of the agency, the amendments were approved.
EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Board of Education: Department of Education: General Administration
702 KAR 1:160. School health services. Kay Kennedy, division director, and Amy Peabody, assistant general counsel, represented the department.
In response to a question by Co-Chair Harris, Ms. Kennedy stated that schools had developed programs to assist with self administration of medication to students if necessary. These programs helped keep students with chronic conditions in the classroom. The system seemed to be working well.
A motion was made and seconded to approve the following amendments: (1) to amend material incorporated by reference for corrections and clarifications; (2) to amend the RELATES TO paragraph to add a statutory citation; and (3) to amend Sections 1, 2, and 4, 5, and 6 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
School Terms, Attendance and Operation
702 KAR 7:140. School calendar.
A motion was made and seconded to approve the following amendments: (1) to amend Section 4 to clarify the basis for an emergency day waiver; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 and 2 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
FINANCE AND ADMINISTRATION CABINET: School Facilities Construction Commission: Procedures
750 KAR 1:030. Emergency and Targeted Investment Fund. Kristi Culpepper, executive director, represented the commission.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1 and 3 to move requirements out of the “Definitions” section; (2) to amend Section 4 to specify requirements and establish a standard for approval of alternative bond structures; (3) 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 (4) to amend Sections 1, 3, and 4 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
PUBLIC PROTECTION CABINET: Department of Insurance: Health and Life Division: Assets and Liabilities
806 KAR 6:070. Valuation of life insurance and annuity reserves. Malinda Shepherd, program manager, and DJ Wasson, administrative coordinator, represented the division.
In response to a question by Co-Chair Harris, Ms. Shepherd stated that the revised mortality information was generationally based and should keep pace with fluctuations without needing to be updated frequently.
In response to a question by Representative Damron, Ms. Shepherd stated that this administrative regulation was not related to issues of principal-based reserving.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correct statutory citations; and (2) to amend the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs and Sections 1, 2, and 4 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.
Horse Racing Commission: Thoroughbred Racing
810 KAR 1:017. Objections and complaints. Marc Guilfoil, director, and Katherine Paisley, deputy general counsel, represented the commission.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct statutory citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; (3) to amend Section 4 to specify that the stewards shall consider the seriousness and circumstances of the incident in determining the extent of a disqualification; and (4) to amend Sections 1 through 8 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 2:090. Objections and complaints.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct statutory citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; (3) to amend Section 4 to specify that the stewards shall consider the seriousness and circumstances of the incident in determining the extent of a disqualification; and (4) to amend Sections 1 through 8 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Public Health: Division of Health Care: Health Services and Facilities
902 KAR 20:008. License procedures and fee schedule. Stephanie Brammer-Barnes, regulation coordinator; Beth Jurek, executive director, Office of Policy and Budget; and Maryellen Mynear, inspector general, represented the cabinet.
In response to questions by Co-Chair Harris, Ms. Mynear stated that the division’s statutory mandate required protection for the sick and elderly. Proper funding was crucial to complying with that mandate. The division had not increased fees since 2003, and the 2003 fee increase was minimal, in that it did not keep fees commensurate with costs. The division had repeatedly needed to use General Funds to compensate for inadequate fees. The cost of an inspection of a long-term care facility was between $8,000 and $9,500. The division was experiencing critical staffing shortages. There was one (1) surveyor for approximately every forty (40) facilities, resulting in delays that may affect the economy if, for example, a facility opening was delayed. Inadequate fees also affected Medicaid funding. The division amended this administrative regulation as a result of stakeholder comments in an attempt to make a good-faith compromise regarding fees. Additionally, retirement at the division had increased by 1,000 percent and General Fund appropriations to the division had decreased since 2003, further eroding staffing and funding. The fee increases were annual. Ms. Jurek stated that, in addition to the annual inspections, the division also conducted investigations in response to complaints. The division did not charge for inspections resulting from complaints.
Office of Inspector General: Division of Health Care: Health Services and Facilities
902 KAR 20:430 & E. Facilities specifications, operation and services; behavioral health services organizations. Stephanie Brammer-Barnes, regulation coordinator; Natalie Kelly, division director; and Maryellen Mynear, cabinet inspector general, represented the cabinet.
In response to a question by Co-Chair Harris, Ms. Kelly stated that “CADC” means certified alcohol and drug counselor.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph and Section 1 to correct citations; (2) to amend Sections 4, 6, 8, 9, and 10 to include cross-references and make minor clarifications; (3) to amend Section 12 to align the hearing procedures with KRS Chapter 13B; and (4) to amend Sections 6, 8, and 9 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
902 KAR 20:440 & E. Facilities specifications, operation and services; residential crisis stabilization units.
In response to a question by Co-Chair Harris, Ms. Brammer-Barnes stated that this administrative regulation pertained to crisis stabilization units.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph and Section 1 to correct citations; (2) to amend Sections 4, 5, 7, 10, 11, 12, 14, and 16 to include cross-references and comply with the drafting and formatting requirements of KRS Chapter 13A; and (3) to amend Section 17 to align the hearing procedures with KRS Chapter 13B. Without objection, and with agreement of the agency, the amendments were approved.
Department for Behavioral Health, Developmental and Intellectual Disabilities: Division of Administration and Financial Management: Institutional Care
908 KAR 3:050. Per diem rates. Stephanie Craycraft, director, represented the cabinet.
In response to a question by Co-Chair Harris, Ms. Craycraft stated that cost fluctuations were based on population fluctuations at individual facilities.
908 KAR 3:060. “Means test” for determining patient liability.
In response to a question by Co-Chair Harris, Ms. Craycraft stated that this administrative regulation was being amended because of federal poverty guideline revisions.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct a statutory citation; and (2) to amend Sections 2, 3, 4, 5, and 7 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Other Business: Co-Chair Harris stated that three (3) Subcommittee members would be leaving the General Assembly. He thanked those members, Senator Sara Beth Gregory, Representative Bob Damron, and Representative Jimmie Lee, and noted that their service would be further discussed at the December 2014 Subcommittee meeting.
The following administrative regulations were deferred to the December 9, 2014, meeting of the Subcommittee:
HIGHER EDUCATION ASSISTANCE AUTHORITY: Division of Student and Administrative Services: Kentucky Loan Program
11 KAR 3:100. Administrative wage garnishment.
KHEAA Grant Programs
11 KAR 5:001. Definitions pertaining to 11 KAR Chapter 5.
11 KAR 5:033. KTG student eligibility requirements.
11 KAR 5:034. CAP grant student eligibility.
11 KAR 5:170. Refund and repayment policy.
Teacher Scholarship Loan Program
11 KAR 8:030. Teacher scholarships.
Commonwealth Merit Scholarship Program
11 KAR 15:060. Kentucky Educational Excellence Scholarship overpayment and refund and repayment procedure.
Early Childhood Development Scholarship Program
11 KAR 16:001. Definitions for 11 KAR Chapter 16.
11 KAR 16:010. Early Childhood Development Scholarship Program applicant selection process.
JUSTICE AND PUBLIC SAFETY CABINET: Law Enforcement Council: Council
503 KAR 1:090. Approval of course curriculums.
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: Office of Occupations and Professions: Board of Home Inspectors: Board
815 KAR 6:001. Definitions for 815 KAR Chapter 6.
815 KAR 6:080. Continuing education provider.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Public Health: Office of Health Policy: Division of Public Health Protection and Safety: Radiology
902 KAR 100:010. Definitions for 902 KAR Chapter 100.
902 KAR 100:019. Standards for protection against radiation.
902 KAR 100:042. Decommissioning and financial surety.
902 KAR 100:058. Specific licenses to manufacture, assemble, repair, or distribute products.
902 KAR 100:070. Transportation of radioactive material.
902 KAR 100:072. Use of radionuclides in the health arts.
902 KAR 100:100. Industrial radiography.
902 KAR 100:142. Wire line service operations.
Department for Medicaid Services: Division of Policy and Operations: Hospital Service Coverage and Reimbursement
907 KAR 10:825. Diagnosis-related group (DRG) inpatient hospital reimbursement.
Behavioral Health
907 KAR 15:075 & E. Reimbursement provisions and requirements for behavioral health services provided by residential crisis stabilization units.
The Subcommittee adjourned at 2 p.m. until December 9, 2014 at 1 p.m.