Call to Order and Roll Call
The August meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, August 11, 2015, at 1:00 PM, in Room 149 of the Capitol Annex. Senator Ernie Harris, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Ernie Harris, Co-Chair; Representative Mary Lou Marzian, Co-Chair; Senators Julie Raque Adams, and Perry B. Clark; Representatives Denver Butler, and Tommy Turner.
Guests: Jimmy Adams, Education Professional Standards Board; Dinah Bevington, Personnel Cabinet; Nicole Biddle, Larry Disney, Tom Veit, Real Estate Appraisers Board; Ron Brooks, Karen Waldrop, David Wicker, Department of Fish and Wildlife Resources; Tim Arnold, John Cummings, Department for Public Advocacy; Amy Barker, Cindy Huddleston, Department of Corrections; Chase Bannister, Kevin Brown, Department of Education; Chad Collins, Julian Tackett, KY High School Athletic Association; Todd Allen, Amanda Ellis, Leslie Slaughter, Dale Winkler, Department of Education; Mike Pettit, Kristi Redmon, Chip Smith, Chuck Stribling, Labor Cabinet; Frederick Higdon, Steve Humphress, Melissa McQueen, Alcoholic Beverage Control; John Allender, Tammy Scruggs, Jessica Sharpe, Charles Vice, Department for Financial Institutions; William Farmer, Marc Guilfoil, Richard Sams, Susan Speckert, John Ward, Horse Racing Commission; Stephanie Bramer-Barnes, Maryellen Mynear, Office of Inspector General; Laura Begin, Julie McKee, Department for Public Health; Leslie Hoffman, Stuart Owen, Department for Medicaid Services; David Allgood, Jennifer Dudinskie, Victoria Elridge, Department for Aging and Independent Living; Ben Bealmear DMV, Peter Echbert, Rick Hiles, Martin Maline, National Horseman’s Benevolent and Protective Association; WB Rogers Beasley, Keeneland.
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, August 11, 2015, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
EDUCATION PROFESSIONAL STANDARDS BOARD: Board
16 KAR 2:020. Occupation-based career and technical education certification. Jimmy Adams, acting executive director, represented the board.
In response to a question by Senator Clark, Mr. Adams stated that the character and fitness form was required each five (5) years to maintain licensure. The form disclosed violations or criminal behavior and would be used by the board if necessary to determine the appropriateness of continued licensure.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add citations; and (2) to amend Sections 1, 2, and 6 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
16 KAR 4:030. Out-of-state educator preparation.
In response to a question by Co-Chair Harris, Mr. Adams stated that this administrative regulation synchronized out-of-state educator preparation programs to the equivalent in-state programs.
A motion was made and seconded to approve the following amendments: to amend Sections 2 and 3 to: (1) clarify requirements; and (2) comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
PERSONNEL CABINET: Personnel Cabinet, Classified
101 KAR 2:020. Job classification plan. Dinah Bevington, general counsel, represented the cabinet.
101 KAR 2:046. Applications, qualifications, and examinations.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 6, 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.
101 KAR 2:056. Registers.
101 KAR 2:066. Certification and selection of eligible applicants for appointment.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add citations; and (2) 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.
101 KAR 2:120. Incentive programs.
101 KAR 3:045. Compensation plan and pay incentives.
A motion was made and seconded to approve the following amendments: (1) to amend the TITLE and Sections 2 through 5, 9, and 10 to comply with the drafting requirements of KRS Chapter 13A; and (2) to amend the STATUTORY AUTHORITY paragraph to add a citation. Without objection, and with agreement of the agency, the amendments were approved.
GENERAL GOVERNMENT CABINET: Real Estate Appraisers Board: Board
201 KAR 30:070. Grievances. Nicole Biddle, staff attorney; Larry Disney, executive director; and Tom Veit, executive assistant, represented the board.
In response to a question by Co-Chair Harris, Mr. Disney stated that the board historically investigated all grievances, including those submitted anonymously. The board had previously agreed to cease investigating anonymous grievances, but the federal Frank – Dodd Act required the board to continue investigating all grievances, including those submitted anonymously. This administrative regulation addressed anonymous grievances.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2 to clarify that a grievance that is filed anonymously shall still be investigated; and (2) to amend Sections 3 and 5 to make technical corrections. 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 1:146. Commercial fishing gear. Ron Brooks, fisheries director; Dr. Karen Waldrop, deputy commissioner; and David Wicker, general counsel, represented the department.
In response to a question by Co-Chair Harris, Mr. Brooks stated that a rough fish was any fish not already classified as a sport fish.
JUSTICE AND PUBLIC SAFETY CABINET: Department of Corrections: Office of the Secretary
501 KAR 6:270. Probation and parole policies and procedures. Amy Barker, assistant general counsel, and Cindy Huddleston, probation and parole officer, represented the department.
In response to a question by Co-Chair Harris, Ms. Barker stated that this administrative regulation realigned requirements with recent technological advances.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to update policy title and edition dates; and (2) to amend material incorporated by reference to update citations and make technical corrections. Without objection, and with agreement of the agency, the amendments were approved.
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. Kevin Brown, associate commissioner and department general counsel, represented the board. Chad Collins, general counsel, and Julian Tackett, commissioner, represented the Kentucky High School Athletic Association.
In response to a question by Senator Raque Adams, Mr. Tackett stated that drones were being marketed for use at high school athletic events; however, the Federal Aviation Administration did not yet allow that. Kentucky had several incidents and accidents regarding drones at high school athletic events. Individual schools determined if drones were used during practice, and the Kentucky High School Athletic Association recommended that drones not be used during practice.
In response to a question by Co-Chair Marzian, Mr. Tackett stated that drones were being marketed for coaching purposes in order to capture activity from different angles.
A motion was made and seconded to approve the following amendments: to amend Sections 3 through 5 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.
Office of Instruction
704 KAR 3:303. Required academic standards. Todd Allen, assistant general counsel; Kevin Brown, associate commissioner and department general counsel; and Amanda Ellis, associate commissioner, represented the department.
In response to a question by Senator Clark, Ms. Ellis stated that the department was replacing the Kentucky Core Academic Standards for Arts and Humanities to broaden the program, create a more age-appropriate curriculum, and establish a more performance-based program. Senator Clark stated that he supported the arts.
Instructional Programs
705 KAR 4:041. Work-based learning program standards. Chase Bannister, staff attorney; Kevin Brown, associate commissioner and department general counsel; and Leslie Slaughter, policy advisor, represented the department.
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 the RELATES TO 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.
LABOR CABINET: Department for Workplace Standards: Division of Occupational Safety and Health Compliance: Division of Occupational Safety and Health Education and Training: Occupational Safety and Health
803 KAR 2:180. Recordkeeping; reporting; statistics. Mike Pettit, standards specialist; Kristi Redmon, standards specialist; and Chip Smith, general counsel, represented the division.
In response to questions by Co-Chair Harris, Ms. Redmon stated that the federal Occupational Health and Safety Administration initiated these changes, and the division was required to update these administrative regulations accordingly. Mr. Smith stated that the most substantive changes were to the discrimination provisions, which protect an employee from retaliation related to a complaint pertaining to occupational safety or health. A recent Court of Appeals decision determined that Kentucky's standards were not protective enough; therefore, 803 KAR 2:250 was amended to address those concerns and ensure protection from retaliation.
A motion was made and seconded to approve the following amendments: (1) to amend the TITLE to make punctuation corrections; (2) to amend the RELATES TO paragraph to add citations; (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 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.
803 KAR 2:200. Confined spaces in construction.
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 and 2 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
803 KAR 2:250. Discrimination.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add citations; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 2, 4, 5, 6, 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.
803 KAR 2:305. Powered platforms, manlifts, and vehicle-mounted work platforms.
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 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.
803 KAR 2:317. Special industries.
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 the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 2 to comply with the drafting requirements of KRS Chapter 13A; and (3) to amend Section 1 to add a definition for "employer" for consistency with the other administrative regulations in this package. Without objection, and with agreement of the agency, the amendments were approved.
803 KAR 2:402. General safety and health provisions.
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 the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 2 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
803 KAR 2:421. Adoption of 29 C.F.R. Part 1926.950-968.
A motion was made and seconded to approve the following amendments: to amend the TITLE and Section 2 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
803 KAR 2:505. Cranes and derricks in construction.
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.
PUBLIC PROTECTION CABINET: Department of Alcoholic Beverage Control: Licensing
804 KAR 4:370. Entertainment destination center license. Frederick Higdon, commissioner; Steve Humphress, general counsel; and Melissa McQueen, staff attorney, represented the department.
In response to questions by Co-Chair Harris, Mr. Humphress stated that this administrative regulation was first initiated in anticipation of Fourth Street Live! This administrative regulation allowed comingling of alcoholic beverages during events within certain parameters. The department was relaxing the parameter requirements so that other venues, such as the Newport Levee, could participate. This administrative regulation could apply to craft breweries, but those breweries were also subject to other requirements established in other administrative regulations.
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 Section 1 to correct a citation. Without objection, and with agreement of the agency, the amendments were approved.
Department of Financial Institutions: Division of Non-Depository Institutions: Check Cashing
808 KAR 9:010. Administration and enforcement of KRS 286.9-140 to ensure that check cashers do not violate the law against multiple transactions in excessive amounts by a customer. John Allender, staff attorney, and Charles Vice, commissioner, represented the division.
In response to a question by Co-Chair Harris, Mr. Vice stated that this administrative regulation clarified requirements regarding when transactions for payday loans were considered closed.
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; Section 1; the material incorporated by reference; and the REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT 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 Section 1 to add the requirement that the applications for a non-profit exemption and for a HUD exemption be notarized; and (4) to amend Sections 1 and 3 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Mortgage Loan Companies and Mortgage Loan Brokers
808 KAR 12:020. Claims of exemption.
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 correct a citation and 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 correct a citation and add the requirement that the applications for a Non-Profit exemption and for a HUD exemption be notarized; (4) to amend Sections 1 and 3 to comply with the drafting requirements of KRS Chapter 13A; and (5) to amend the REGULATORY IMPACT ANALYSIS and the application for a Non-Profit exemption to correct a citation. Without objection, and with agreement of the agency, the amendments were approved.
808 KAR 12:021. Licensing and registration.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1 through 5 and Section 9 to comply with the drafting and formatting requirements of KRS Chapter 13A; (2) to amend Section 3 to add the statutory citation that covers the commissioner’s authority to require a background check; and (3) to amend Section 5 to: (a) clarify that the credit report score demonstrates the requirement of “financial responsibility” by the applicant; and (b) add what factors are used in the board’s determination of “character” and “general fitness”. Without objection, and with agreement of the agency, the amendments were approved.
808 KAR 12:110. Report of condition.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correct a citation; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 1 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Public Health: Office of Inspector General: Division of Health Care: Health Services and Facilities
902 KAR 20:160. Chemical dependency treatment services and facility specifications. Stephanie Brammer–Barnes, regulation coordinator, and Maryellen Mynear, inspector general, represented the division.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correct citations; and (2) to amend Sections 1 through 4, 6, and 8 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
902 KAR 20:320. Level I and Level II psychiatric residential treatment facility operation and services.
In response to a question by Senator Clark, Ms. Brammer–Barnes stated that House Bill 92 of the 2015 Regular Session of the General Assembly authorized licensed clinical alcohol and drug counselors and licensed clinical alcohol and drug counselor associates to offer alcohol and drug counseling services.
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 7(7)(h) to clarify requirements; and (3) to amend Sections 1 and 14 to add "licensed clinical alcohol and drug counselor" and "licensed clinical alcohol and drug counselor associate". Without objection, and with agreement of the agency, these amendments were approved.
Division of Maternal and Child Health: Water Fluoridation
902 KAR 115:010. Water fluoridation for the protection of dental health. Laura Begin, regulation coordinator, and Dr. Julie McKee, state dental director, represented the division.
In response to a question by Senator Clark, Dr. McKee stated that this administrative regulation was commensurate with federal recommendations regarding fluoridation of public water supplies.
A motion was made and seconded to approve the following amendments: to amend the RELATES TO paragraph; the NECESSITY, FUNCTION, AND CONFORMITY paragraph; and Sections 2 through 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.
Department for Medicaid Services: Division of Community Alternatives: Psychiatric Residential Treatment Facility Services and Reimbursement
907 KAR 9:005. Non-outpatient Level I and Level II psychiatric residential treatment facility service and coverage policies. Leslie Hoffman, policy advisor, and Stuart Owen, regulation coordinator, represented the department.
In response to a question by Senator Clark, Mr. Owen stated that an emergency administrative regulation regarding licensure of licensed clinical alcohol and drug counselors and associates had been submitted to the governor's office by the licensure board and it was expected to be filed soon. The licensure of those individuals would impact these Medicaid administrative regulations and 902 KAR 20:160 and 20:320.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to revise the definition of: (a) “behavioral health professional” to add a certified alcohol and drug counselor; and (b) “interdisciplinary team” to include a parent, legal guardian, or caregiver of a recipient if requested by the recipient over age eighteen (18); and (2) 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.
907 KAR 9:010. Reimbursement for non-outpatient Level I and Level II psychiatric residential treatment facility services.
A motion was made and seconded to approve the following amendments: to amend Sections 2 and 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.
907 KAR 9:015. Coverage provisions and requirements regarding outpatient services provided by Level I or Level II psychiatric residential treatment facilities.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 3, 4, 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.
907 KAR 9:020. Reimbursement provisions and requirements regarding outpatient behavioral health services provided by Level I or Level II psychiatric residential treatment facilities.
A motion was made and seconded to approve the following amendments: to amend Sections 1 and 2 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Hospital Service Coverage and Reimbursement
907 KAR 10:014. Outpatient hospital service coverage provisions and requirements.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 3, 5, and 10 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 10:016. Coverage provisions and requirements regarding inpatient psychiatric hospital services.
A motion was made and seconded to approve the following amendments: (1) to amend the definition of “interdisciplinary team” to include a parent, legal guardian, or caregiver of a recipient if requested by the recipient over age eighteen (18); and (2) to amend Sections 2 through 5 and 7 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Behavioral Health
907 KAR 15:080. Coverage provisions and requirement regarding outpatient chemical dependency treatment center services.
A motion was made and seconded to approve the following amendments: to amend Sections 2, 3, 6, and 7 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 15:085. Reimbursement provisions and requirements regarding outpatient chemical dependency treatment center services.
Department for Aging and Independent Living: Division of Quality Living: Aging Services
910 KAR 1:270. Hart-Supported Living grant program. David Allgood, chair, Hart Support Living Council; Jennifer Dudinskie, branch manager; and Victoria Elridge, deputy commissioner, represented the division.
In response to questions by Senator Clark, Ms. Elridge stated that there were currently 408 program participants. Participants had until 2018 to come into compliance with the new guidelines, and there were exceptions that allowed the division to examine the totality of a financial statement. Once this administrative regulation was finalized, the council voted unanimously to approve it.
In response to questions by Co-Chair Harris, Ms. Dudinskie stated that most participants lived at home, and this program helped to keep those participants involved in community life. Mr. Allgood stated that these funds primarily helped provide attending care. Other expenditures involved, for example, access ramp construction and bathroom remodeling for access. Expenditures could therefore be ongoing or one (1) time.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph and Sections 5, 7, and 9 to update citations; (2) to amend Sections 1 and 3 to reference defined terms; (3) to amend Section 1 to: (a) add definitions for "federal poverty guidelines" and "operating agency"; and (b) clarify that personal care services shall be limited to recipients who are at least twelve (12) years old; (4) to amend Sections 3 and 15 and the renewal application form to clarify application procedures; and (5) to amend Sections 1, 4, 5, 7, 8, 9, and 13 to comply with the drafting and formatting 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 September 8, 2015, meeting of the Subcommittee:
GENERAL GOVERNMENT CABINET: Board of Medical Imaging and Radiation Therapy: Board
201 KAR 46:010. Definitions for 201 KAR Chapter 46.
201 KAR 46:020. Fees.
201 KAR 46:030. Education for medical imaging technologists, advanced imaging professionals and radiation therapists.
201 KAR 46:040. Medical imaging technologist, advanced imaging professional and radiation therapist licenses.
201 KAR 46:045. Temporary license application for medical imaging technologists, advanced imaging professionals, and radiation therapists.
201 KAR 46:050. Provisional training license for medical imaging technologists and radiation therapists.
201 KAR 46:060. Continuing education requirements.
201 KAR 46:070. Violations and enforcement.
201 KAR 46:081. Limited x-ray machine operator.
JUSTICE AND PUBLIC SAFETY CABINET: Parole Board: Board
501 KAR 1:080. Parole board policies and procedures. John Cummings, counsel, represented the board.
In response to a question by Representative Butler, Mr. Cummings stated that the board agreed to defer consideration of this administrative regulation to the September meeting of the Subcommittee. Without objection, and with agreement of the agency, this administrative regulation was deferred.
TRANSPORTATION CABINET: Department of Highways: Division of Maintenance: Traffic
603 KAR 5:155. Removal and pruning of vegetation.
Billboards
603 KAR 10:002. Definitions for 603 KAR Chapter 10.
603 KAR 10:010. Static advertising devices.
603 KAR 10:021. Electronic advertising devices.
PUBLIC PROTECTION CABINET: Horse Racing Commission: Thoroughbred Racing
810 KAR 1:300. International medication protocol as a condition of a race. Marc Guilfoil, director of racing; Susan Speckert, general counsel; and John Warn, executive director of racing, represented the commission. Dr. Ben Bealmear, veterinarian, North American Association of Racetrack Veterinarians; Peter Ecabert, general counsel, National Horsemen's Benevolent and Protective Association; Rick Hiles, president, Kentucky Horsemen's Benevolent and Protective Association; and Martin Maline, executive director, Kentucky Horsemen's Benevolent and Protective Association, appeared in opposition to these administrative regulations. W. B. Rogers Beasley, director of racing, Keeneland, appeared in support of these administrative regulations.
In response to a question by Co-Chair Marzian, staff stated that, if deferred, an entire administrative regulation was deferred, not just a portion. If these administrative regulations were deferred, they would be tentatively placed on the September 8 Subcommittee agenda.
In response to a question by Co-Chair Marzian, Mr. Warn stated that some horse owners wanted to be able to race without using furosemide. In order to ensure the fairness of a race, all horses in a race without furosemide needed to be furosemide free. Furosemide, while used to prevent pulmonary bleeding was a diuretic and caused a fourteen (14) to fifteen (15) pound difference; therefore, a horse racing with furosemide but racing against a horse or horses without furosemide had an unfair advantage.
In response to a question by Co-Chair Harris, Mr. Warn stated that furosemide was used during training and on race day to protect horses from pulmonary bleeding. Horse owners were not prohibited from using it and were not required to use it.
In response to a question by Representative Butler, Mr. Warn stated that a horse owner was no longer required to submit a veterinarian's certification of a medical necessity for the use of furosemide.
Mr. Hiles stated that furosemide protected horses by preventing bleeding. A horse, once having had a bleeding event, was more likely to bleed again and to have other negative health consequences. Furosemide was not usually used in training, except with a horse with a previous incidence of bleeding. The Jockey Club did a study in South Africa, the purpose of which was to discredit furosemide. The study instead proved that furosemide was very beneficial to prevent a horse from bleeding. Jockeys were also protected from potential accidents and injuries because the horses were protected from bleeding. With these administrative regulations, the commission had delegated its authority to a third party, by allowing tracks to determine if a nonfurosemide race would take place. The commission did not have the authority to delegate this control.
Mr. Ecabert stated that by allowing a track to determine if a nonfurosemide race would take place, the track, not the commission, was making contestants subject to violations and sanctions. The commission did not have the authority to delegate that authority. These administrative regulations violated the Fourteenth Amendment to the United States Constitution and violated the Kentucky Constitution's equal protection provisions.
Mr. Bealmear stated that Colorado had incentivized racing without furosemide. On June 20, 2015, the horse, Aces Away, finished third in a nonfurosemide race. After racing, Aces Away collapsed and died. The autopsy results had yet to be released. He stated his desire to have consideration of these administrative regulations postponed until the autopsy results are released so that, if bleeding was the cause of the death of Aces Away, that information could be used in consideration of these administrative regulations.
In response to a question by Co-Chair Harris, Mr. Hiles stated that most horses were medicated with furosemide on race days, either for actual bleeding or as a bleeding preventative.
In response to a question by Senator Raque Adams, Mr. Hiles stated that the Equine Drug Research Council failed to approve the concept of nonfurosemide races; therefore, the commission decided to pursue the concept on its own. The Kentucky Horsemen's Benevolent and Protective Association was opposed to this concept from its inception. Mr. Ecabert stated that the commission did not allow the Equine Drug Research Council to have input in the commission's policies, including increased drug threshold levels.
In response to questions by Co-Chair Marzian, Mr. Hiles stated that furosemide was legal for use in all states of the United States. It was also legal in Europe, with the exception of the actual race day. The Kentucky Horsemen's Benevolent and Protective Association had only heard from one (1) track that supported these administrative regulations. A typical horse weighed between 1,000 and 1,200 pounds. Furosemide was not a performance enhancer, but a performance enabler, which protected a horse and allowed a horse to run at its natural best. Mr. Maline stated that European horse owners did usually use furosemide on race day if racing in the United States. There was a concern that horse owners opposed to the policies may take their horses away from Kentucky to other states.
In response to questions by Senator Clark, Mr. Hiles stated that, if a horse bleeds, there is often downtime from racing and veterinarian bills for the owner. There were potential penalties related to racing a horse that has experienced multiple bleeding episodes. Currently, only the commission was authorized to establish a nonfurosemide race. These administrative regulations would delegate that authority to the tracks themselves. Mr. Maline stated that there were also disadvantages to the betting public because a given horse may run differently if not using furosemide than it would in other races in which it is administered furosemide.
Mr. Beasley stated that Keeneland supported these administrative regulations because these administrative regulations offered opportunity for the equine industry. The history of Kentucky horse racing was a history of increased opportunity. These administrative regulations would allow for nonfurosemide races for those owners who wanted to participate.
In response to a question by Senator Raque Adams, Mr. Beasley stated that each racetrack would be able to determine whether to establish nonfurosemide races. These administrative regulations, as it pertains to nonfurosemide races, were permissive, not mandatory.
Co-Chair Marzian stated that she would like for the Subcommittee to hear from some of the other track representatives when these administrative regulations came back before the Subcommittee for consideration.
Co-Chair Harris stated that he would like the commission to consult with the Attorney General regarding the delegation of authority to establish nonfurosemide races to the tracks.
A motion was made and seconded to defer consideration of these administrative regulations to the September 8 meeting of the Subcommittee. Without objection, and with agreement of the agency, the deferrals were approved.
Harness Racing
811 KAR 1:300. International medication protocol as a condition of a race.
Quarter Horse, Appaloosa and Arabian Racing
811 KAR 2:300. International medication protocol as a condition of a race.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Public Health: Office of Inspector General: Division of Health Care: 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.
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 Community Alternatives: Hospital Service Coverage and Reimbursement
907 KAR 10:020. Coverage provisions and requirement regarding outpatient psychiatric hospital services.
907 KAR 10:025. Reimbursement provisions and requirements regarding outpatient psychiatric hospital services.
The Subcommittee adjourned at 2:25 p.m. until September 8, 2015, at 1 p.m.