Call to Order and Roll Call
The July meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, July 14, 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, Will Coursey, and Tommy Turner.
Guests: Maryellen Allen, Matt Steph, Board of Elections; Ryan Barrow, Steve Jones, Doug Hendrix, Finance Cabinet; Michael Burleson, Board of Pharmacy; Charles Lykins, Board of Cosmetology; Pamela Hagan, Board of Nursing; Matt James, Board of Licensed Diabetic Educators; Steve Beam, Ron Brooks, Steven Dobey, David Wicker, Department of Fish and Wildlife Resources; Leah MacSwords, Division of Forestry; Kerry Holleran, Barney Kinman, Justice and Public Safety Cabinet; Gerald Ross, Law Enforcement Council; Kevin Brown, Amanda Ellis, Greta Hylton, Department of Education; Steve Humphress, Melissa McQueen, Department of Alcoholic Beverage Control; Kim Collings, Steve Hollmann, Department of Natural Resources; James Chandler, Brian Judy, Board of Home Inspectors; Jack Coleman, Michael Davis, Tina Quire; Department of Housing, Buildings and Construction; Bill Nold, Chandra Venettozzi, Office of Health Benefit and Health Information Exchange; Laura Begin, Kathy Fowler, Department for Public Health; Stephanie Brammer Barnes, Maryellen Mynear, Office of Inspector General; Stuart Owen, Neville Wise, Department for Medicaid Services, Bobbie Holsclaw, Board of Elections; Kathryn Callahan, The Humane Society of the United States; Chet Hayes, Ed Morris, League of Kentucky Sportsman, Doug Morgan, Kentucky Houndsmen Association; Ronnie Wells, Kentucky Grouse Hunters Association; Patty Swiney, MD, Kentucky Academy of Family Physicians; Shirley Michelle Vittatow, The Little Clinic; Dr. Brent Wright, Kentucky Medical Association; Gay Dwyer, Kentucky Retail Federation; Scott Lockard, Kentucky Health Department Association; Matt Rhodes, Louisville Metro Public Health and Wellness.
LRC Staff: Donna Little, Sarah Amburgey, Carrie Klaber, Karen Howard, Emily Harkenrider, Emily Caudill, Ange Bertholf, and Betsy Cupp.
The Administrative Regulation Review Subcommittee met on Tuesday, July 14, 2015, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
BOARD OF ELECTIONS: Statewide Voter Registration
31 KAR 3:040. Electronic Voter Registration System. Maryellen Allen, executive director, and Matt Selph, assistant director, represented the board. Bobbie Holsclaw, Jefferson County Clerk, appeared in support of this administrative regulation.
In response to questions by Co-Chair Marzian, Mr. Selph stated that the Electronic Voter Registration (EVR) System was a better system than the current card-style protocol because the data was more accurate, and the procedure was more efficient. The card system was inefficient and labor intensive because staff was required to interpret sometimes difficult-to-read handwriting. The board expected to save approximately $100,000 yearly compared with the current system. This administrative regulation was approved unanimously by the bipartisan board. Twenty-seven (27) other states and the military already used similar systems. The EVR System process included the prospective voter entering personal data into the on-line program, data being verified against existing records, and data cross-referenced for use with the on-file signature from the Transportation Cabinet, Department of Driver Licensing. Ms. Holsclaw stated that Jefferson County supported the EVR System established by this administrative regulation.
Co-Chair Marzian stated that the EVR System seemed fiscally responsible.
In response to questions by Co-Chair Harris, Mr. Selph stated that Kentucky was unable to use the exact same system used by the military, but the system was developed after reverse engineering the military system in order to provide as much security as possible. The system initially required information such as the proposed voter's full name, county of residence, and Social Security Number. Any data that contradicted data already on file automatically invalidated the application. The application included a perjury statement to discourage fraud. Additionally, the system was able to determine how many applications were made from a single IP address. It was not yet determined how many applications from a single IP address would trigger an investigation for fraud, probably over ten (10). Sixty-six (66) percent of those using the system were changing party affiliation or an address. A virtual signature was not substantively different from an actual signature pursuant to the card system. The board was not attempting to bypass the legislative process. Legislation and this administrative regulation were filed simultaneously in order to prepare for registration for the 2016 presidential election.
Co-Chair Harris stated that he was concerned about the possibility of fraud and the security of the EVR System. The County Clerk's Association was opposed to the EVR System. The board seemed to be attempting to bypass a legislative determination. Twenty-one (21) of the twenty-seven (27) states that used similar systems made the changes via determination of their legislatures. Co-Chair Harris made a motion, seconded by Senator Kerr, to find this administrative regulation deficient. A roll call vote was taken. There being four (4) votes to find this administrative regulation deficient and three (3) votes not to find it deficient, the motion failed.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add citations; (2) to amend Section 3 to comply with the drafting requirements of KRS Chapter 13A; and (3) to add a new Section 5 to incorporate by reference the Voter Registration Form. Without objection, and with the agreement of the agency, the amendments were approved.
Forms and Procedures
31 KAR 4:120. Additional and emergency precinct officers.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct 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 Sections 1, 2, and 4 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
31 KAR 4:180 & E. Activities prohibited within 100 feet of the entrance to a building in which a voting machine is located.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add 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 2: (a) for clarity; and (b) 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: Office of the Secretary: State Investment Commission
200 KAR 14:011. Qualified Investments. Ryan Barrow, executive director; Stephen Jones, deputy executive director and portfolio manager; and Doug Hendrix, deputy general counsel, represented the commission.
200 KAR 14:081. Repurchase agreement.
GENERAL GOVERNMENT CABINET: Board of Pharmacy: Board
201 KAR 2:015. Continuing education. Michael Burleson, executive director, represented the board.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to update citations; and (2) to amend Sections 1 through 5, 8, 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 2:360 & E. Naloxone dispensing.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1 and 6 and the material incorporated by reference to align the application requirements with the application form; (2) to amend Section 3 to clarify that the protocol shall have physician notification procedures only if desired by the physician in accordance with KRS 217.186(5)(b)3; and (3) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 3 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Board of Hairdressers and Cosmetologists: Board
201 KAR 12:083. Educational requirements. Charles Lykins, administrator, represented the board.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to add a citation; and (2) to amend Section 3 to require a written request to obtain special board permission. Without objection, and with agreement of the agency, the amendments were approved.
Board of Nursing: Board
201 KAR 20:063. Restrictions on use of amphetamine-like anorectic controlled substances. Pamela Hagan, APRN practice and education consultant, represented the board.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correct citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; (3) to amend Sections 2 and 3 to comply with KRS 314.011(8) and to delete “dispense”; (4) to amend Sections 2 and 5 to cross-reference 201 KAR 20:057 that includes the Collaborative Agreement for the Advanced Practice Registered Nurse’s Prescriptive Authority for Controlled Substances (CAPA-CS); (5) to amend Section 4 for clarity by providing examples of what the board considers as a “legitimate medical purpose” for applying for a written waiver; and (6) to amend Sections 2 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.
Board of Licensed Diabetes Educators: Board
201 KAR 45:120. Renewal, reinstatement, and inactive status. Matt James, assistant attorney general, represented the board.
201 KAR 45:170. Application procedures.
In response to a question by Co-Chair Harris, Mr. James stated that this administrative regulation was being amended to close a loophole regarding an apprentice diabetes educator working under supervision.
A motion was made and seconded to approve the following amendments: to amend Section 1 to remedy an apparent conflict with KRS 309.335. Without objection, and with agreement of the agency, the amendments were approved.
TOURISM, ARTS AND HERITAGE CABINET: Department of Fish and Wildlife Resources: Fish
301 KAR 1:122. Importation, possession, and prohibited aquatic species. Steve Beam, wildlife division director; Ron Brooks, fisheries director; Steven Dobey, wildlife program coordinator; and David Wicker, general counsel, represented the department.
In response to a question by Co-Chair Harris, Mr. Brooks stated that the department was trying to avoid encroachment of round goby because the invasive species was becoming a problem in nearby states. A Kentucky sportsman had requested to use round goby as bait. Round goby supplants native species and may accidentally be released into the ecosystem if used as bait.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 3 to make technical corrections; and (2) 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.
Game
301 KAR 2:049. Small game and furbearer hunting and trapping on public lands and other federally owned areas. Steve Beam, wildlife division director; Steven Dobey, wildlife program coordinator; and David Wicker, general counsel, represented the department.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 4 through 9 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
301 KAR 2:300. Black bear seasons and requirements. Steve Beam, wildlife division director; Steven Dobey, wildlife program coordinator; and David Wicker, general counsel, represented the department. Chet Hayes, president, Fifth District Federation of the League of Kentucky Sportsmen; Doug Morgan, president, Kentucky Houndsmen Association; and Ed Morris, president, League of Kentucky Sportsmen, appeared in support of this administrative regulation. Senator Robin Webb and Representative John Short appeared in support of this administrative regulation. Kathryn Callahan, state director, The Humane Society of the United States, appeared in opposition to this administrative regulation.
In response to questions by Representative Turner, Mr. Dobey stated that the 2013 statistics demonstrated a black bear population of approximately 500 to 700 bears. The population was growing at approximately eighteen (18) percent per year; therefore, the current population was probably higher than the 2013 estimates. Black bear nuisance reports had increased significantly in the last few years, as had the black bear population and the geographic spread. Bear locations ranged through Kentucky and Tennessee. Tennessee has also determined it was appropriate to establish a regulated black bear hunt.
In response to questions by Co-Chair Marzian, Mr. Dobey stated that the maximum number of permits was thirty-five (35). Mr. Beam stated that if the quota was met, the hunt would be adjourned, even if the season was not yet ended. The quota for females was more restrictive than the quota for males. Seventy-two (72) percent of harvested bears were male.
Ms. Callahan stated that The Humane Society of the United States opposed this administrative regulation and requested that the subcommittee find this administrative regulation deficient. Kentucky biologists have stated that the black bear populations need protection, including monitoring, limiting hunting, stopping poaching, and preserving female populations. Black bears had only recently returned to Kentucky, and the hunting program puts them at risk again. Kentucky was home to two (2) fragile black bear populations, the Big South Fork subpopulation and Eastern Kentucky bears. The Big South Fork subpopulation was especially at risk, and hunting of this subpopulation should be prohibited. Kentucky researchers, Sean Murphy and Steven Dobey, have stated that the subpopulation contains a total of only thirty-eight (38) black bears. Those thirty-eight (38) are closely related and may lack genetic diversity, which puts them further at risk. The stated growth rate was not the same as population recovery and did not support increased hunting. An expanded hunt, especially with hounds, was dangerous to the female bear population and their cubs. This administrative regulation may contribute to the extinction of the black bear in Kentucky again.
Mr. Morgan stated that the Kentucky Houndsmen Association supported this administrative regulation, which provided opportunities for youth hunters with the two (2) day youth season.
Mr. Morris stated that Kentucky Department of Fish and Wildlife Resources was the nationwide standard for reestablishing wildlife because of the department's success in maintaining populations and healthy wildlife. The League of Kentucky Sportsmen consisted of thousands of members, and the league supported this administrative regulation.
Mr. Hayes stated that the Fifth District Federation of the League of Kentucky Sportsmen supported this administrative regulation. The department had been successful in reestablishing deer, elk, wild turkey, and river otters, among other animals. The department was funded by fees from sportsmen, not from the general fund. The Humane Society was misleading its donors because the Humane Society emphasized helping domestic animal shelters but used little of the donations for that purpose.
Senator Webb stated that the black bear population was stable and that the Kentucky Department of Fish and Wildlife Resources employed world-class biologists to ensure the health of Kentucky's wildlife. The Humane Society was generally opposed to hunting.
Representative Short stated that Knott County had to hire a wildlife warden solely to address the high number of nuisance complaints related to black bears. A bear had even been spotted on a school's playground during school hours. He stated support for this administrative regulation.
Co-Chair Marzian stated that the department may want to consider Minnesota's hunting program, which raised funds for arts and conservation programs.
ENERGY AND ENVIRONMENT CABINET: Department for Natural Resources: Division of Forestry: Forestry
402 KAR 3:010. Timber sales. Leah MacSwords, director, represented the department.
In response to a question by Co-Chair Harris, Ms. MacSwords stated that these administrative regulations applied to state forests only. State parks entered into agreements with the department for technical support; however, proceeds from timber sales in state parks went exclusively to the parks.
A motion was made and seconded to approve the following amendments: 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.
402 KAR 3:030. Best management practices for timber harvesting operations.
402 KAR 3:050. Bad actor notice provisions.
A motion was made and seconded to approve the following amendments: to amend Sections 1 and 2 for consistency with terminology. Without objection, and with agreement of the agency, the amendments were approved.
JUSTICE AND PUBLIC SAFETY CABINET: Internal Investigations Branch: Abuse Investigation
500 KAR 13:020. Internal Investigations Branch. Kerry Holleran, assistant general counsel, and Barney Kinman, staff assistant, represented the branch.
A motion was made and seconded to approve the following amendments: (1) to amend Section 4 to comply with the drafting requirements of KRS Chapter 13A; and (2) to amend Section 6 to clarify the reporting procedures. Without objection, and with agreement of the agency, the amendments were approved.
Law Enforcement Council: Council
503 KAR 1:110. Department of Criminal Justice Training basic training: graduation requirements; records. Gerald Ross, assistant general counsel, represented the council.
In response to questions by Co-Chair Harris, Mr. Ross stated that the initial eight (8) training hours were for orientation. The council was transitioning from a written exam to a practical assessment that had criteria thresholds and was treated as a pass – fail scoring system. The practical assessments added rigor to the evaluation process.
In response to a question by Representative Butler, Mr. Ross stated that funding for the training was directed to the local government units, which used insurance to finance the training.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to correct a citation; and (2) to amend Section 4 to: (a) clarify that each training section shall at a minimum include one (1) or more of the listed training topics; (b) clarify that all of the listed training topics shall be covered before graduation; and (c) comply with the formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Board of Education: Department of Education: Office of Instruction
704 KAR 3:370. Professional growth and effectiveness system. Kevin Brown, associate commissioner and general counsel; Amanda Ellis, associate commissioner; and Gretta Hylton, policy advisor, represented the department.
In response to a question by Co-Chair Harris, Ms. Ellis stated that public preschool teachers were certified in early childhood education. They were given an extra year to comply with this administrative regulation, and they were provided with specialized guidance for their unique educational setting. Private preschools were not subject to this administrative regulation.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 2, 5, 7, 8, 10, and 15 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Kindergartens and Nursery Schools
704 KAR 5:070. Common kindergarten entry screener.
PUBLIC PROTECTION CABINET: Department of Alcoholic Beverage Control: Advertising Distilled Spirits and Wine
804 KAR 1:061. Repeal of 804 KAR 1:060. Steve Humphress, general counsel, and Melissa McQueen, staff attorney, represented the department.
Local Administrators
804 KAR 10:010. County alcoholic beverage control administrator.
In response to a question by Co-Chair Harris, Mr. Humphress stated that an alcoholic beverage control administrator issued licenses at the local level. Usually the county executive or an appointee of the county executive served as the alcoholic beverage control administrator. For example, the county executor may appoint the local sheriff to serve in that capacity.
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.
804 KAR 10:020. City alcoholic beverage control administrator.
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.
804 KAR 10:025. Urban-county alcoholic beverage control administrator.
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.
ENERGY AND ENVIRONMENT CABINET: Department for Natural Resources: Division of Oil and Gas: Oil and Gas
805 KAR 1:100. Commission’s rules of procedure; spacing of deep well drilling; wildcat wells and pooling of interests. Kim Collings, director, and Steve Hohmann, commissioner, represented the division.
805 KAR 1:130. Administrative regulation relating to casing, cementing, plugging, gas detection and blow-out prevention in oil and gas wells.
805 KAR 1:140. Directional and horizontal wells.
805 KAR 1:170. Content of the operations and reclamation plan.
PUBLIC PROTECTION CABINET: Office of Occupations and Professions: Board of Home Inspectors: Board
815 KAR 6:010. Home inspector licensing requirements and maintenance of records. 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 Sections 1, 2, 3, and 9 through 12 to comply with the drafting requirements of KRS Chapter 13A; and (2) to revise the Initial Licensure Application incorporated by reference. Without objection, and with agreement of the agency, the amendments were approved.
Department of Housing, Buildings and Construction: Electrical Division: Electrical
815 KAR 35:015. Certification of electrical inspectors. Michael Davis, general counsel, and Tina Quire, assistant director, represented the division.
A motion was made and seconded to approve the following amendments: (1) to amend Section 5 to correct a cross-reference citation; and (2) to amend Section 6 to clarify the cross-referenced building codes. Without objection, and with agreement of the agency, the amendments were approved.
CABINET FOR HEALTH AND FAMILY SERVICES: Office of Health Policy: Office of the Health Benefit and Health Information Exchange: Health Benefit Exchange
900 KAR 10:020. KHBE small business health options program. Bill Nold, former executive director and advisor, and Chandra Venettozzi, health data administrator, represented the cabinet.
In response to a question by Co-Chair Harris, Mr. Nold stated that the recent decision by the Supreme Court of the United States did not affect Kentucky's health benefit exchange because it was not a federal exchange program.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2 to: (a) authorize a small employer to offer stand-alone dental plan coverage to only its full-time employees; and (b) clarify the formula for determining the employee participation rate; (2) to amend Section 3 to: (a) delete the requirement that a dependent be at least three (3) years of age; and (b) clarify provisions for enrolling a qualified employee, or the spouse or dependent of a qualified employee, in a stand-alone dental plan; (3) to amend Section 9 to authorize a small employer to change its election to offer dependent or spousal coverage or the waiting period for newly qualified employees; (4) to amend Sections 11 and 14 to clarify new employee waiting periods and the effective date of termination of SHOP participation; (5) to amend Sections 2, 3, and 15 to delete a required application form that was incorporated by reference; (6) to amend Sections 1, 2, 3, 9, and 11 through 14 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (7) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 1 to change the name of the agency to comply with Executive Order 2015-387 issued June 16, 2015. Without objection, and with agreement of the agency, the amendments were approved.
900 KAR 10:040. KHBE Consumer Assistance Program and kynector certification.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1 and 3 through 6 to comply with the drafting and formatting requirements of KRS Chapter 13A; (2) to amend Section 5 to specify the number of public education activities to be conducted each month; and (3) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to change the name of the agency to comply with Executive Order 2015-387 issued June 16, 2015. Without objection, and with agreement of the agency, the amendments were approved.
900 KAR 10:050. Individual agent participation with the Kentucky Health Benefit Exchange.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1, 3, and 5 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 1 to change the name of the agency to comply with Executive Order 2015-387 issued June 16, 2015. Without objection, and with agreement of the agency, the amendments were approved.
900 KAR 10:100. Appeals of eligibility determinations for KHBE participation and insurance affordability programs.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1, 2, 6, 7, and 9 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 7, 9, 10, 12, 13, and 14 to change the name of the agency to comply with Executive Order 2015-387 issued June 16, 2015. Without objection, and with agreement of the agency, the amendments were approved.
900 KAR 10:110. KHBE formal resolution process related to SHOP employers and employees.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1 and 3 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 1 to change the name of the agency to comply with Executive Order 2015-387 issued June 16, 2015. Without objection, and with agreement of the agency, the amendments were approved.
Department for Public Health: Division of Public Health Protection and Safety: Sanitation
902 KAR 10:022. Repeal of 902 KAR 10:020 and 10:021. Laura Begin, regulation coordinator, and Kathy Fowler, division director, represented the cabinet.
Health Services and Facilities
902 KAR 20:400. Limited services clinics. Stephanie Brammer-Barnes, regulation coordinator, and Maryellen Mynear, inspector general, represented the cabinet. Shirley Vittitow, Little Clinics of Kroger, appeared in support of this administrative regulation. Patty Swiney, MD, Kentucky Academy of Family Physicians, and Brent Wright, MD, Kentucky Medical Association, appeared in opposition to this administrative regulation.
Ms. Vittitow stated examples of patients for whom limited service clinics (LSCs) were the appropriate providers for the treatment of chronic conditions included patients who refused to receive care from a general practitioner due to fear or other reasons. Shift workers and patients with limited transportation were also common users of LSCs. Not every patient fit into a 9 to 5 world in order to receive care for a chronic condition. LSCs that treated chronic conditions provide access and save money, which would bring down healthcare costs in Kentucky.
Dr. Swiney stated that the Kentucky Academy of Family Physicians was opposed to LSCs treating chronic conditions. These clinics did not improve access for Medicaid patients because Medicaid did not reimburse LSCs. This was not a physicians versus nurses debate. Chronic disease management was complex, and primary care physicians were the best choice for the management of chronic conditions. LSC care was often fractured. Collaboration of care was best. If this administrative regulation was not found deficient, the Kentucky Academy of Family Physicians requested that chart review and oversight provisions be added to this administrative regulation.
Dr. Wright stated that the Kentucky Medical Association was opposed to LSCs treating chronic conditions. Dr. Wright asked a series of questions. Why was it necessary to add these chronic conditions to the list of conditions an LSC may treat? What evidence was there that LSCs can provide safe and effective treatment for chronic conditions? What did these changes do to Kentucky's health system because LSCs provided fractured care at a time when the goal was coordinated, comprehensive care? Why was a pilot study not conducted first to ensure safe and effective treatment of chronic conditions by LSCs? How did this administrative regulation improve access because most LSCs were located in relatively affluent areas? If an LSC was unaffiliated with a primary care physician, it may be difficult to transition an LSC patient into a more rigorous care facility if that became necessary.
In response to questions by Co-Chair Harris, Dr. Wright stated that the Kentucky Medical Association recommended two (2) to three (3) more stakeholder meetings before this administrative regulation moved further toward becoming effective. Ms. Mynear stated that the cabinet did not believe that further stakeholder meetings were necessary. This administrative regulation improved access while providing public protection. The cabinet declined to defer.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add a citation; (2) to amend Sections 3 and 7 to comply with the drafting requirements of KRS Chapter 13A; (3) to amend Section 3: (a) to replace “physician specialist” with “specialist”; (b) for clarity and flow; (c) to delete the requirement for a chronically ill patient to provide written consent every thirty (30) days in order to continue treatment at the limited service clinic (LSC) and replace it with a requirement for the patient to provide written consent at each subsequent visit to the LSC; (d) to establish that the LSC shall cease treatment for the patient’s chronic disease if the patient fails to provide written consent; (e) to authorize any individual to request modification of any part of this administrative regulation; (f) to require the cabinet to appoint and convene an advisory committee within sixty (60) days of the request to modify; (g) to add the Kentucky Academy of Family Physicians to the advisory committee; (h) to require that the committee review each request for modification within sixty (60) calendar days of receiving the request and make recommendations to the cabinet regarding approval or denial within forty-five (45) days after the committee convenes for review; and (i) to delete prior language about the committee procedure; and (4) to amend Section 4 to: (a) replace the term “medical director” with “clinical director”; (b) add an advanced practice registered nurse as a qualified candidate for the clinical director position; (c) replace the term “chart audit” with “chart review”; (d) allow for a Kentucky-licensed physician, in lieu of the clinical director, to conduct monthly chart reviews in conjunction with a practitioner from each clinic; (e) add clarifying language related to the required number of monthly chart reviews; and (f) insert clarifying language related to the clinical director’s responsibilities in confirming that the clinic’s practitioners remain in compliance with the requirements of their professional licenses. Without objection, and with agreement of the agency, the amendments were approved.
Food and Cosmetics
902 KAR 45:011. Repeal of 902 KAR 45:010, 45:030, 45:040, 45:050, 45:060, and 45:130. Laura Begin, regulation coordinator, and Kathy Fowler, division director, represented the cabinet.
902 KAR 45:110. Permits and fees for retail food establishments, food manufacturing plants, food storage warehouses, salvage processors and distributors, vending machine companies, and restricted food concessions. Laura Begin, regulation coordinator, and Kathy Fowler, division director, represented the cabinet. Scott Lockard, public health director, Clark County Health Department, and president, Kentucky Health Departments Association; and Matt Rhodes, deputy director, Louisville Metro Public Health and Wellness, appeared in support of this administrative regulation. Gay Dwyer, vice president of governmental affairs, Kentucky Retail Federation, appeared in opposition to this administrative regulation.
In response to a question by Senator Kerr, Ms. Begin stated that the fee increases were proportional to the complexity of the facility to be inspected. Fees had not been increased since 2001.
In response to a question by Co-Chair Harris, Ms. Begin stated that the inspection program costs the agency approximately $11 million annually. Most of that funding came from local health tax money. More money could be retained by local health departments for other important programs if these fees were increased. Even with the fee increases, the program would not be fully self-funded. The fee increase was expected to bring in at least $1 million annually.
Mr. Lockard stated that every citizen was affected by local health departments by using a grocery store or restaurant. The Clark County Health Department and the Kentucky Health Departments Association supported the fee increases. Programs and inspections were more complex and costly than in the past. For a small provider, the fee was seventy-five (75) dollars annually and included use of technical support. For large providers, the annual fee was $300.
Mr. Rhodes stated that 4,114 facilities in Louisville alone were required to be inspected, and there were approximately 1,200 complaints to be investigated annually. Louisville's cost was over $1 million annually.
Ms. Dwyer stated that the Kentucky Retail Federation appreciated the agency's financial needs, but the current proposed fee increases were three (3) times the existing fees in many cases. The concern was not the increase itself, but the level of the increase. Retailers had not tripled profits since 2001 to compensate for tripled fee increases.
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 requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
902 KAR 45:160. Kentucky food processing, packaging, storage, and distribution operations.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph and Sections 1 through 3 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 Sections 1, 16, and 17 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: Hospital Service Coverage and Reimbursement
907 KAR 10:830. Acute care inpatient hospital reimbursement. Stuart Owen, regulation coordinator, and Neville Wise, deputy commissioner, represented the cabinet.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2 to: (a) clarify the federal grouping software version that shall be used; (b) require the department to make interim payments for dates of service beginning October 1, 2015, if the Centers for Medicare and Medicaid Services releases version 33 on October 1, 2015; and (c) change references from “upon adoption of this administrative regulation” to “beginning October 1, 2015” for consistency throughout the administrative regulation; (2) to amend Section 8 to: (a) clarify the timing of the annual software update based on the timing of changes made at the federal level; and (b) specify that the department shall not update the Medicare grouper software more than once per federal fiscal year; and (3) to amend Sections 1, 2, 5, 6, 7, 10, 11, 13, 14, 17, 22, and 24 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 August 11, 2015, meeting of the Subcommittee:
GENERAL GOVERNMENT CABINET: Board of Medical Imaging and Radiation Therapy: Board
201 KAR 46:070. Violations and enforcement.
JUSTICE AND PUBLIC SAFETY CABINET: Parole Board: Board
501 KAR 1:080. Parole Board policies and procedures.
PUBLIC PROTECTION CABINET: Department of Financial Institutions: Division of Non-Depository Institutions: Mortgage Loan Companies and Mortgage Loan Brokers
808 KAR 12:020. Claims of exemption.
808 KAR 12:021. Licensing and registration.
808 KAR 12:110. Report of condition.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Public Health: Division of Public Health Protection and Safety: Health Services and Facilities
902 KAR 20:091. Facilities specifications, operation and services; community mental health center.
902 KAR 20:180. Psychiatric hospitals; operation and services.
902 KAR 20:320. Level I and Level II psychiatric residential treatment facility operation and services.
Department for Medicaid Services: Division of Community Alternatives: Medicaid Services
907 KAR 1:045 & E. Reimbursement provisions and requirements regarding community mental health center services.
Division of Policy and Operations: Medicaid Services
907 KAR 1:046. Community mental health center primary care services.
Division of Policy and Operations: Psychiatric Residential Treatment Facility Services and Reimbursement
907 KAR 9:010. Reimbursement for non-outpatient Level I and Level II psychiatric residential treatment facility services.
The Subcommittee adjourned at 3:25 p.m. until August 11, 2015, at 1 p.m.