Call to Order and Roll Call
The January meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, January 13, 2015, at 1:00 PM, in Room 149 of the Capitol Annex. Representative Mary Lou Marzian, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Ernie Harris, Co-Chair; Representative Mary Lou Marzian, Co-Chair; Senators Julie Raque Adams, Perry B. Clark, and Alice Forgy Kerr; Representatives Denver Butler, and Tommy Turner.
Guests: Leanne Diakov, Michael Rodman, Board of Medical Licensure; Nathan Goldman, Paula Schenk, Board of Nursing; Karen Waldrop, David Wicker, Department of Fish and Wildlife; Amy Barker, Department of Corrections; Casey Hall, Michael Kurtsinger, Ann-Tyler Morgan, Jeremy Rodgers, Fire Commission; Frederick Higdon, Stephen Humphress, Department of Alcoholic Beverage Control; Mitch Buchanan, Jim Chandler, Brian Judy, Board of Home Inspectors; Michael Davis, Gary Feck, Melissa Highfield-Smith, Department of Housing, Buildings and Construction; Laura Begin, Kraig Humbaugh, Allyson Taylor, Department of Public Health; Matt McKinley, Beth Jurek, Department of Public Health, Radiation Health Branch; Leslie Hoffmann, Natalie Kelly, Stuart Owen, Department for Medicaid Services; Elizabeth Caywood, Department of Community Based Services, Jeff Hinkley, HVAC Services Inc., Tim House, Tom Lowder, Stephen Strong, Kentucky Association of Master Contractors, Kevin Kavanagh MD, Mark Norenberg, Air Conditioning Contractors of America, Indoor Environment and Energy Efficiency Association, David Tretter, Neiheisel Plumbing Inc.
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 Tuesday, January 13, 2015, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
GENERAL GOVERNMENT CABINET: Board of Medical Licensure: Board
201 KAR 9:310. Continuing medical education. Michael Rodman, executive director, and Leanne Diakov, general counsel, represented the board.
A motion was made and seconded to approve the following amendment: to amend Section 5 to require one (1) rather than two (2) hours of continuing medical education in HIV/AIDS every ten (10) years to match the current statutory requirement. Without objection, and with agreement of the agency, the amendment was approved.
201 KAR 9:450. Fee schedule regarding acupuncturists.
201 KAR 9:460. Written plan.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to add a citation; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; and (3) to amend Section 1 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Board of Nursing: Board
201 KAR 20:220. Nursing continuing education provider approval. Nathan Goldman, general counsel, and Paula Schenk, executive director, represented the board.
In response to a question by Co-Chair Harris, Mr. Goldman stated that it was necessary to reduce the renewal period for approved continuing education from five (5) to two (2) years in order to maintain tracking in light of significant turnover.
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 the STATUTORY AUTHORITY paragraph to insert a citation; and (3) to amend Section 4 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 20:240. Fees for applications and for services.
TOURISM, ARTS AND HERITAGE CABINET: Department of Fish and Wildlife Resources: Game
301 KAR 2:221 & E. Waterfowl seasons and limits. Dr. Karen Waldrop, deputy commissioner, and David Wicker, general counsel, represented the department.
301 KAR 2:222 & E. Waterfowl hunting requirements on public lands.
JUSTICE AND PUBLIC SAFETY CABINET: Department of Corrections: Office of the Secretary
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).
KENTUCKY COMMUNITY AND TECHNICAL COLLEGE SYSTEM: Kentucky Fire Commission: Commission on Fire Protection Personnel Standards and Education
739 KAR 2:060. Certification and qualifications of fire service instructors. Casey Hall, curriculum and degree program coordinator; Michael Kurtsinger, division director; and Anne – Tyler Morgan, counsel, represented the commission.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correct citations; (2) to amend Section 1 to insert a definition for "fire protection instructor"; (3) to amend Sections 1 through 7 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (4) to amend Section 7 to clarify that certification shall not be reinstated for an instructor whose certification has lapsed for a period exceeding three (3) years. Without objection, and with agreement of the agency, the amendments were approved.
PUBLIC PROTECTION CABINET: Department of Alcoholic Beverage Control: Local Administrators
804 KAR 10:031. Local government regulatory license fees. Frederick Higdon, commissioner, and Stephen Humphress, general counsel, represented the department.
In response to questions by Co-Chair Harris, Mr. Humphress stated that, because city classifications had been statutorily eliminated, requirements in this administrative regulation were tiered based on population. A few legislative amendments were needed to update the department's statutes commensurate with the elimination of city classification.
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, and 3 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Office of Occupations and Professions: Board of Home Inspectors: Board
815 KAR 6:040. Home inspector prelicensing providers. Mitch Buchanan, board member; James Chandler, chair; and Brian Judy, assistant attorney general, represented the board.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to add a statutory citation; (2) to amend Sections 1, 3, and 7 to comply with the drafting requirements of KRS Chapter 13A; and (3) to amend Section 7 to revise material incorporated by reference. Without objection, and with agreement of the agency, the amendments were approved.
815 KAR 6:080. Continuing education provider.
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 TITLE and Sections 1 through 4 to comply with the drafting requirements of KRS Chapter 13A; and (3) to amend Section 5 to revise material incorporated by reference. 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. Michael Davis, general counsel; Gary Feck, acting commissioner; and Melissa Highfield - Smith, budget director, represented the division. Jeff Hinkley, general manager, HVAC Services, Inc; Tim House, executive director, Kentucky Association of Master Contractors; Mark Norenberg, general HVAC contractor, Indoor Environment and Energy Efficiency Association (formerly Air Conditioning Contractors of America); and David Tretter, president, Neiheisel Plumbing, Inc., appeared in opposition to the fee increases in this administrative regulation; 815 KAR 8:010, 8:020, 8:070, and 8:090; and 815 KAR 20:015, 20:030, 20:050, 20:195.
In response to questions by Senator Raque Adams, Ms. Highfield – Smith stated that stakeholders had been informed of these fee increases and some had commented during the public comment period. Mr. House stated that deferral of these administrative regulation would probably not be beneficial. The department was unable to prevent the sweeping of funds. The Office of State Budget Director initiated budget decisions regarding sweeping, and the budget was then enacted by the General Assembly. The Kentucky Association of Master Contractors believed that the current financial challenges faced by the department included Commonwealth Office of Technology charges, pension and health insurance premium cost increases, and repayment of a floating salary payment from 2012 (to be paid in July 2016).
In response to a question by Senator Kerr, Mr. Davis stated that internal boards and committees within the division met with stakeholders and, after those discussions, approved these fee increases unanimously.
In response to questions by Representative Turner, Mr. Davis stated that the fee increases were necessary for mandatory expenses. The HVAC and plumbing programs were not meeting their respective revenue needs. The increases were carefully developed to meet fiscal needs without new employees. The increases were targeted to maintain necessary activities without overages that may be subject to being swept by the General Assembly. Funds were swept in 2012 because there were overage funds remaining at that time. Stakeholders were among the members of the internal boards and committees that voted for these fee increases unanimously. Mr. House stated that the Kentucky Association of Master Contractors and other stakeholders worked with the department, not the cabinet, to provide stakeholder input pertaining to the development of these fees. Mr. House explained that in Fiscal Year 2011 – 2012, all Commonwealth employees were delayed salary payments on June 30 to July 1, which was a new fiscal year. As a result, there was a floating salary payment that would have to be paid at some point.
Co-Chair Marzian stated that these programs were operating in the red. These programs were crucial for public safety. Health insurance premiums and pension requirements had increased for this agency. Mr. Davis stated that these fees did not directly impact individual tradesmen. Co-Chair Marzian stated that it was important to carefully review sweeping of restricted funds in Executive Branch budget proposals.
In response to a question by Co-Chair Harris, Mr. Davis stated that these fees were based on calculations, such as square footage or plumbing components.
Mr. House stated that the Kentucky Association of Master Contractors was opposed to these fee increases. Continued sweeping of funds was negatively impacting the division and its mandate to protect public safety. Restricted funds were not intended for use in the General Fund. These fee increases were necessary because of previous sweeping of funds. Fund transfers routinely occurred without approval of the agency or its internal boards and committees. The Kentucky Association of Master Contractors was not opposed to fee increases if it could be guaranteed that the revenue would stay within each applicable program because the division had properly managed funds; it was only the result of sweeping that had caused the shortfall.
Mr. Hinkley stated that HVAC Services, Inc. had public safety concerns because of swept fee revenue. There were numerous unlicensed individuals performing substandard work in the Commonwealth, but the division does not have the financial resources to enforce requirements for licensees, nonetheless unlicensed individuals.
Mr. Tretter stated that businesses were already facing challenges from recent economic conditions, which were improving but were not back to pre-2009 levels. These fee increases would affect businesses. Sweeping of revenue from the plumbing program into the General Fund was the main concern. In the past, plumbers had ascended to fee increases only to have the funds swept and fee increases proposed anew.
Mr. Norenberg stated that Indoor Environment and Energy Efficiency Association (formerly Air Conditioning Contractors of America) was opposed to these fee increases and was concerned about public safety and the sweeping of funds.
A motion was made by Representative Turner, seconded by Senator Raque Adams, to find these administrative regulations deficient. After further discussion, these motions were withdrawn.
Division of Heating, Ventilation and Air Conditioning: Heating, Ventilation, and Air Conditioning Licensing Requirements
815 KAR 8:010. Master heating, ventilation, and air conditioning (HVAC) contractor licensing requirements.
815 KAR 8:020. Journeyman heating, ventilation, and air conditioning (HVAC) mechanic licensing requirements.
815 KAR 8:070. Installation permits.
A motion was made and seconded to approve the following amendments: 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.
815 KAR 8:090. Fees and refunds.
Division of Plumbing: Plumbing
815 KAR 20:015. Fees and refunds.
815 KAR 20:030. License application; qualifications for examination, examination requirements, expiration, renewal, revival, or reinstatement of licenses.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; (2) to amend Section 4 to specify criteria for determining the sufficiency of the applicant’s mechanical engineering experience; and (3) to amend Sections 2 and 5 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
815 KAR 20:050. Installation permits.
815 KAR 20:195. Medical gas piping installations.
A motion was made and seconded to approve the following amendment: to amend Section 2 to correct an inadvertent omission. Without objection, and with agreement of the agency, the amendment was approved.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Public Health: Division of Epidemiology and Health Planning: Communicable Diseases
902 KAR 2:020. Reportable disease surveillance. Laura Begin, regulation coordinator; Dr. Kraig Humbaugh, senior deputy commissioner; and Allyson Taylor, policy advisor and chief of staff, represented the cabinet. Representative Tom Burch, House District 30; Dr. Kevin Kavanagh, Health Watch U.S.A.; and Dana Stevens, infection control for St. Joseph Hospitals, appeared in support of this administrative regulation.
Dr. Kavanagh stated that Health Watch U.S.A. strongly supported this administrative regulation because it addressed dangerous organisms. Currently, there had not been a uniform response protocol, as shown by worldwide response to the recent E. bola crisis. This was a problem with the entire healthcare system and needed to be addressed at that level.
In response to a question by Senator Kerr, Dr. Kavanagh stated that Health Watch U.S.A. was a small, nonprofit watchdog group that stressed consumer choice and transparency.
Ms. Stevens stated that she helped to develop legislation for disease control. She thanked Representative Burch for his efforts developing this administrative regulation, and she looked forward to ongoing dialogue with the cabinet.
In response to questions by Co-Chair Harris, Dr. Humbaugh stated that each medical facility designated one (1) person to report to protect against multiple reports of the same incident, which would create inaccurate reporting. A tracking number was then issued by the local health department. Co-Chair Harris stated that it was important to put in safeguards to protect against duplicate reporting.
Division of Public Health Protection and Safety: Radiology
902 KAR 100:012. Fee schedule. Laura Begin, regulation coordinator; Matt McKinley, branch manager; Beth Jurek, executive director; and Allyson Taylor, policy advisor and chief of staff, represented the cabinet.
In response to a question by Senator Raque Adams, Mr. McKinley stated that fees were raised to a level that was seventy-five (75) percent of the average same fees for surrounding state programs. The percentile of actual fee increase varied from fee to fee. Ms. Begin stated that comments were received during the public comment period, and this administrative regulation had been amended to provide a lower fee for smaller entities.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add a citation; and (2) to amend Sections 1, 2, 3, and 6 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Department for Medicaid Services: Division of Policy and Operations: Payments and Services
907 KAR 3:005 & E. Coverage of physicians' services. Leslie Hoffmann, behavioral health director; Natalie Kelly, division director; and Stuart Owen, regulation coordinator, represented the cabinet.
Senator Kerr applauded the cabinet's attempt to create parity between physical and behavioral health programs.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to delete a reference to “advanced practice registered nurse” in the definition of “common practice” and change references in the definition of “provider group” from “Medicaid provider number” to “Medicaid group provider number”; (2) to amend Section 2 to require a provider to date and sign the health record within seventy-two (72) hours from the date of the service, rather than the same day of service; (3) to amend Section 4 to clarify, in accordance with 42 C.F.R. 455.410, that: (a) a provider is required to be currently enrolled and participating in the Medicaid Program to prescribe medication, order a service, or refer a recipient for service; and (b) the department shall not reimburse for a prescription, service, or referral if the provider is not currently enrolled and participating in the Medicaid Program; (4) to amend Section 8 to delete non-physician independent providers from the list of providers who provide services for which a physician or provider group (which includes a physician) would be the billing provider; and (5) to amend Sections 1, 2, 4, 6, 7, and 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.
Behavioral Health
907 KAR 15:070 & E. Coverage provisions and requirements regarding services provided by residential crisis stabilization units.
A motion was made and seconded to approve the following amendments: 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.
907 KAR 15:075 & E. Reimbursement provisions and requirements for behavioral health services provided by residential crisis stabilization units.
A motion was made and seconded to approve the following amendments: (1) to amend Section 3 to delete provisions regarding nonduplication of services because those provisions are already included in 907 KAR 15:070; and (2) to amend Sections 4 and 5 to comply with the formatting requirements of KRS 13A.220(5). Without objection, and with agreement of the agency, the amendments were approved.
Department for Community Based Services: Division of Protection and Permanency: Adult Services
922 KAR 5:050. Funding requirements for domestic violence shelters. Elizabeth Caywood, internal policy analyst, represented the cabinet.
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 the STATUTORY AUTHORITY paragraph to delete citations; and (3) 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.
The following administrative regulations were deferred to the February 9, 2015, meeting of the Subcommittee:
GENERAL GOVERNMENT CABINET: Board of Medical Licensure: Board
201 KAR 9:270. Professional standards for prescribing or dispensing Buprenorphine-Mono-Product or Buprenorphine-Combined-with-Naloxone.
Senator Clark stated that it was important that this administrative regulation accommodate patients with reported THC levels.
Board of Licensure for Occupational Therapy: Board
201 KAR 28:010. Definitions and abbreviations.
201 KAR 28:020. General provisions.
201 KAR 28:030. Short-term practice of occupational therapy for persons practicing under KRS 319A.090(1)(e).
201 KAR 28:060. Requirements for licensure.
201 KAR 28:070. Examination.
201 KAR 28:090. Renewals.
201 KAR 28:110. Fees.
201 KAR 28:130. Supervision of occupational therapy assistants, occupational therapy aides, occupational therapy students, and temporary permit holders.
201 KAR 28:140. Code of ethics and unprofessional conduct.
201 KAR 28:170. Deep physical agent modalities.
201 KAR 28:180. Temporary permits.
201 KAR 28:200. Continuing competence.
201 KAR 28:220. Per diem of board members.
JUSTICE AND PUBLIC SAFETY CABINET: Kentucky Law Enforcement Council: Council
503 KAR 1:090. Approval of course curriculums.
TRANSPORTATION CABINET: Office of the Secretary: 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.
EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Board of Education: Department of Education: Instructional Programs
705 KAR 4:250. Energy technology engineering career pathway.
CABINET FOR HEALTH AND FAMILY SERVICES: 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.
The Subcommittee adjourned at 2:20 p.m. until February 9, 2015, at 1 p.m.