Call to Order and Roll Call
The February meeting of the Administrative Regulation Review Subcommittee was held on Monday, February 8, 2016, 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, Perry B. Clark, and Alice Forgy Kerr; Representative Linda Belcher.
Guests: Kathryn Gabhart, Executive Branch Ethics Commission; David Gordon, Steve Washing, Department of Revenue; Pat McGee, Finance and Administration Cabinet; Nathan Goldman, Paula Schenk, Board of Nursing; Nicole Biddle, Larry Disney, Real Estate Appraisers Board; Matt James, Board of Licensed Diabetes Educators; Jamie Eads, Marc Guilfoil; Horse Racing Commission; Deborah Anderson, Leslie Hoffmann, Stuart Owen, Department for Medicaid Services; David Allgood, Center for Accessible Living; Bill Dolan, Malicia Hitch, Protection and Advocacy; Mary Hass; Advocate; Joyce Lewis, Darlene Litteral, John Woodard, Professional Home Health Care Agency Inc., Reverend Steven Rudy, Parent Advocate; MaryLee Underwood, Commonwealth Council on Developmental Disabilities; Kelly Upchurch, Kentucky Association of Adult Day Care; Rich Wilcke, Kentucky Quarter Horse Racing Association; David Wickstrom, Independence Place, Russ Woodward, Kentucky Society of CPA’s.
LRC Staff: Sarah Amburgey, Ange Bertholf, Emily Caudill, Betsy Cupp, Emily Harkenrider, Karen Howard, Carrie Klaber, and Donna Little.
Administrative Regulations Reviewed by the Subcommittee:
FINANCE AND ADMINISTRATION CABINET: Executive Branch Ethics Commission: Commission
9 KAR 1:025. Guidance on prohibited conduct and conflicts of interest. Kathryn Gabhart, executive director, represented the commission.
Department of Revenue: Forms
103 KAR 3:040 & E. Income tax forms manual. David Gordon, executive director of property valuation; Sherman Nave, director of corporation tax division; and Steve Washing, director of income tax division, represented the department.
Office of the Secretary: Purchasing
200 KAR 5:021. Manual of policies and procedures. Patrick McGee, attorney, represented the office.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to comply with the drafting requirements - of KRS Chapter 13A; and (2) to amend the material incorporated by reference to: (a) correct citations; (b) make a technical correction; and (c) clarify procedures for obtaining a title opinion, a title insurance commitment, and a final title insurance policy. Without objection, and with agreement of the agency, the amendments were approved.
GENERAL GOVERNMENT CABINET: Board of Nursing: Board
201 KAR 20:057. Scope and standards of practice of advanced practice registered nurses. Nathan Goldman, general counsel, and Paula Schenk, executive director, represented the board.
A motion was made and seconded to approve the following amendments: to amend Sections 2, 9, and 11 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Real Estate Appraisers Board: Board
201 KAR 30:030. Types of appraisers required in federally related transactions; certification and licensure. Nicole Biddle, assistant attorney general, and Larry Disney, executive director, represented the board.
In response to questions by Co-Chair Harris, Mr. Disney stated that all appraisers completed the course once; however, in the past there was no need for appraisers to repeat the course. Due to federal changes, the board has amended this administrative regulation to provide for repeated courses. The initial federal statute governing this administrative regulation became effective in 1989. The board amends 201 KAR 30:040 each year to update the manual incorporated by reference to comply with federal changes.
201 KAR 30:040. Standards of practice.
Board of Licensed Diabetes Educators: Board
201 KAR 45:130. Continuing education. Matt James, assistant attorney general, represented the board.
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 4 to comply with the drafting requirements of KRS Chapter 13A; and (3) to amend Section 5 to clarify disciplinary action for failure to comply with continuing education requirements. Without objection, and with agreement of the agency, the amendments were approved.
PUBLIC PROTECTION CABINET: Horse Racing Commission: Quarter Horse, Paint Horse, Appaloosa, and Arabian Racing
811 KAR 2:190. Kentucky Quarter Horse, Paint Horse, Appaloosa, and Arabian Development Fund. Jamie Eads, director of incentives, and Marc Guilfoil, executive director, represented the commission. Rich Wilcke, sprint racing coordinator, Kentucky Quarter Horse Association, appeared in support of this administrative regulation.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 3, 4, 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.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Medicaid Services: Division of Community Alternatives: Medicaid Services
907 KAR 1:160. Home and community based waiver services Version 1. Deborah Anderson, commissioner, Department for Aging and Independent Living; Leslie Hoffmann, director of behavioral health and community alternatives; and Stuart Owen, regulation coordinator, rep-resented the department. David Allgood, director of advocacy, Center for Accessible Living; MaryLee Underwood, advocate parent and executive director, Commonwealth Council on Developmental Disabilities; Kelly Upchurch, president, Kentucky Association of Adult Day Care; and David Wickstrom, executive director, Independence Place, appeared in support of these administrative regulations. Bill Dolan and Malicia Hitch, Department for Protection and Advocacy, appeared in support of these administrative regulations but requested confirmation of a specific issue. Mary Hass, advocate parent, and Reverend Steven Rudy, advocate parent, appeared in opposition to these administrative regulations. Joyce Lewis, president; Darlene Litteral, general counsel; and John Woodard, attorney, Professional Home Health Care Agency, Incorporated, appeared in opposition to these administrative regulations.
Mr. Allgood stated that the Center for Accessible Living supported these administrative regulations, which would greatly improve services for the physically disabled. The cabinet worked well with stakeholders and were welcoming of input during the development of these administrative regulations. The waiver program should save money in addition to helping people.
Mr. Wickstrom stated that Independence Place served thousands of people and supported these administrative regulations. These administrative regulations would help those with physical disabilities remain independent and stay in their communities, especially through funding construction modifications. Time allotment flexibility would help people grocery shop, obtain employment, etc. Services would not be lost under this waiver program.
Mr. Upchurch stated that the Kentucky Association of Adult Day Care ran 118 adult day centers across Kentucky. The new waiver pro-gram would prevent premature admission to long-term care centers, but did not prohibit a participant from opting for a long-term care center. These administrative regulations created a support system for care givers. The waiver program included independent assessments and case providers, while also helping to address provider gaps, especially in rural areas.
Ms. Underwood stated that the new waiver expands time allotments so that caregivers have more employment options. Transportation services were enhanced; transportation has been identified as the number one need. The independent assessment was a positive step. The cabinet offered many opportunities for stakeholder input. A portion of providers were supportive of these administrative regulations moving forward through the process.
Representative Belcher stated that she appreciated the many emails and input she received related to this new waiver program.
In response to a question by Co-Chair Marzian, Ms. Anderson stated that funding was accomplished through a provider tax increase and reallocation of funds.
Mr. Woodard stated that Professional Home Health Care Agency, Incorporated was opposed to these administrative regulations and believed that they violated KRS 205.5605, which required that each consumer be allocated a monthly budget allowance based on a needs as-assessment. He stated that these administrative regulations established a fixed fee with a cap, rather than a monthly budget based on a needs assessment. The new waiver program expanded the scope of options and reduced oversight that was previously built in to the budget de-termination process. Recipients may not receive the correct combination of services to prevent institutionalized care. Mr. Owen stated that the budgetary requirements of KRS 205.5605 were not restated in these administrative regulations because they were already established by statute, but that the budget requirements did apply and were being enforced. Each recipient received a monthly budget based on need.
In response to a question by Representative Belcher, Ms. Anderson stated that the new waiver was participant directed but was based on federal Labor Department requirements. If the state directly established the fee, the state would become the de facto employer; therefore, these administrative regulations established a cap per unit. The budget was then determined based on the rate and how many units were needed according to a needs assessment.
Ms. Hitch stated that the Department of Protection and Advocacy was concerned regarding continuity of speech, physical, and occupational therapy. Mr. Dolan, also with the Department of Protection and Advocacy, expressed the same concern and wanted verification that there would be no lapse or gap in therapy during the transition to the new waiver program. Mary Hass, parent advocate, expressed the same concerns. Ms. Anderson stated that there would not be a lapse. CMS would not grant waiver approval until all participants were fully transitioned; therefore, a lapse was not possible.
Reverend Steven Rudy stated that he was father and legal guardian of his daughter, Stephanie, who was a recipient of the home and community-based waiver program. Through the previous waiver program, Rev. Rudy was able to employ an agency to provide services to Stephanie at the rate of $19.00 per hour. Pursuant to the new waiver program, there would be a cap of $11.50 per hour, so that Stephanie would be unable to continue with her current agency at the current rate. Her care would be greatly compromised. A personal, in-home care agency could not be procured at the proposed cap. Additionally, the quality of individual employees procured at this rate were unlikely to possess the training, expertise, trustworthiness, and professionalism required. Because Stephanie had multiple disabilities, she could not be left alone for any length of time. Rev. Rudy asked the Subcommittee to reconsider the price cap.
In response to Rev. Rudy, Ms. Anderson stated that $11.50 was the net cap. Taxes would be added, making the cap effectively more like $13.50. The figure was developed by determining the average cost of a typical home health associate. The rate was not intended to cover the full cost of care directly from a company. Stephanie’s situation may be better addressed by allowing a traditional provider subcontracted from a company.
Co-Chair Marzian stated that this new waiver program seemed to provide the most benefit to the most people and should move forward through the process. There were concerns about specific situations, but it was generally beneficial to keep people in communities as much as possible.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1, 2, 3, 5, 6, 8, and 10 to comply with the drafting and formatting requirements of KRS Chapter 13A.; (2) to amend Section 1 to include in the definition of "ADHC services" a reference to the need for respite services; (3) to amend Section 3 to reference federal regulatory provisions establishing a longer document retention period; and (4) to amend Sections 6 and 10 to correct the names of two (2) forms incorporated by reference. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 1:170. Reimbursement for home and community based waiver services Version 1.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 2, 4, 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.
Certified Provider Requirements
907 KAR 7:010. Home and community based waiver services Version 2.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1 through 10, 12, and 14 to comply with the drafting and formatting requirements of KRS Chapter 13A; (2) to amend Section 3 to reference federal regulatory provisions establishing a longer document retention period; and (3) to amend Sections 6 and 14 to correct the names of two (2) forms incorporated by reference. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 7:015. Reimbursement for home and community based waiver services Version 2.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 2, and 4 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with the agreement of the agency, the amendments were approved.
The following administrative regulations were deferred to the March 7, 2016, meeting of the Subcommittee:
FINANCE AND ADMINISTRATION CABINET: Department of Revenue: Forms
103 KAR 3:030 & E. Property and severance forms manual. David Gordon, executive director of property valuation; Sherman Nave, director of corporation tax division; and Steve Washing, director of income tax division, represented the department. Russ Woodward, Kentucky Society of CPAs, appeared in opposition to this administrative regulation.
Mr. Woodward stated that the Kentucky Society of CPAs was concerned that a form change may actually result in a policy change with tax implications. The instructions for one (1) form included a statement that custom tax software was taxable, which would result in a tax increase. Mr. Gordon stated that this form change was a clarification and that all tax software, including custom tax software, has been considered taxable.
In response to questions by Senator Raque Adams, Mr. Woodward stated that the Kentucky Society of CPAs was just now bringing this concern because the issue was initially overlooked due to the volume of forms involved. A CPA member had told Mr. Woodward that this would result in a one (1) million dollar tax increase for a specific client.
In response to a question by Co-Chair Harris, Mr. Gordon stated that the department agreed to defer consideration of this administrative regulation to the March 7, 2016, meeting of the Subcommittee. Without objection, and with agreement of the agency, this administrative regulation was deferred.
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.
Board of Licensed Diabetes Educators: Board
201 KAR 45:110. Supervision and work experience.
JUSTICE AND PUBLIC SAFETY CABINET: Department of Corrections: Office of the Secretary
501 KAR 6:030. Kentucky State Reformatory.
TRANSPORTATION CABINET: Department of Vehicle Regulation: Division of Driver Licensing: Administration
601 KAR 2:030 & E. Ignition interlock.
COMMUNITY AND TECHNICAL COLLEGE SYSTEM: Kentucky Fire Commission: Commission on Fire Protection Personnel Standards and Education
739 KAR 2:100. Volunteer firefighter requirements.
739 KAR 2:110. Acceptance of out of state and military training and service.
739 KAR 2:120. Notification of merger or splitting of volunteer fire districts.
739 KAR 2:130. Thermal vision grant application process.
CABINET FOR HEALTH AND FAMILY SERVICES: 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.
Department for Medicaid Services: Division of Community Alternatives: Medicaid Services
907 KAR 1:045. 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.
907 KAR 1:835. Michelle P. waiver services and reimbursements.
Occupational, Physical, and Speech Therapy
907 KAR 8:005. Definitions for 907 KAR Chapter 8.
Division of Community Alternatives: Supports for Community Living Waiver
907 KAR 12:010. New Supports for Community Living Waiver Service and coverage policies.
907 KAR 12:020. Reimbursement for New Supports for Community Living Waiver Services.
The Subcommittee adjourned at 3:10 p.m. until March 7, 2016, at 1 p.m.