Call to Order and Roll Call
The June meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, June 14, 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; Representatives Linda Belcher, Will Coursey, and Tommy Turner.
Guests: Leanne Diakov, Board of Medical Licensure; Melanie Abner, John Marcus Jones, Granville Smith, Board of Ophthalmic Dispensers; David Cox, Board of Engineers & Surveyors; Nathan Goldman, Paula Schenk, Board of Nursing; John Brunjes, Karen Waldrop, David Wicker, Department of Fish and Wildlife Resources; Sean Alteri, Division of Air Quality; Amy Barker, Oran McFarlan, Deanna Smith, Department of Corrections; Ann DAngelo, Transportation Cabinet; Jessica Sharpe, Charles Vice, Department of Financial Institutions, and Curt Duff.
LRC Staff: Sarah Amburgey, Ange Bertholf, Emily Caudill, Betsy Cupp, Emily Harkenrider, Karen Howard, Carrie Klaber, and Donna Little.
The Administrative Regulation Review Subcommittee met on Tuesday, June 14, 2016, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
GENERAL GOVERNMENT CABINET: Board of Medical Licensure: Board
201 KAR 9:016. Restrictions on use of amphetamine and amphetamine-like anorectic controlled substances. Leanne Diakov, general counsel, represented the board.
In response to a question by Co-Chair Harris, Ms. Diakov stated that because she was not a medical specialist, she was unable to answer questions regarding amphetamine and amphetamine-like anorectic controlled substances.
201 KAR 9:025. Interpretation and application of KRS 311.571(10).
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to add a citation; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; and (3) to amend 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.
201 KAR 9:081. Disciplinary proceedings.
In response to a question by Co-Chair Harris, Ms. Diakov stated that the board had not encountered an instance of multiple failures by a single licensee or applicant to report a criminal conviction or action taken by another licensing board.
A motion was made and seconded to approve the following amendments: to amend Section 9 to: (1) reference statutory exceptions; and (2) clarify board procedures. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 9:240. Emergency orders and hearings; appeals and other proceedings.
A motion was made and seconded to approve the following amendments: to amend the RELATES TO paragraph to add citations. Without objection, and with agreement of the agency, the amendments were approved.
Office of Occupations and Professions: Board of Licensure for Ophthalmic Dispensers: Board
201 KAR 13:040. Licensing; application; examination; experience; renewal; and inactive status. Melanie Abner, secretary; Marcus Jones, assistant attorney general; and Granville Smith, chair, represented the board. Curt Duff, executive director, Opticians Association of Kentucky, appeared in support of this administrative regulation.
In response to a question by Co-Chair Harris, Mr. Smith stated that a licensed ophthalmic dispenser may work for an optometrist or an ophthalmologist or may have an independent dispensary.
Mr. Duff stated that Opticians Association of Kentucky represented approximately 570 of the 650 licensed ophthalmic dispensers. The fees for licensure continued to be the lowest in the nation, and the association supported the modest fee increases.
In response to a question by Co-Chair Harris, Mr. Duff stated that the fee increases should cover the board’s costs for the foreseeable future.
A motion was made and seconded to approve the following amendments: to amend Sections 1 and 7 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 13:050. Apprentices.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and 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.
State Board of Licensure for Professional Engineers and Land Surveyors: Board
201 KAR 18:020. Application forms. David Cox, executive director, represented the board.
Board of Nursing: Board
201 KAR 20:520. Telehealth. Nathan Goldman, general counsel, and Paula Schenk, executive director, represented the board.
In response to a question by Co-Chair Harris, Mr. Goldman stated that the board opted to leave the determination up to the provider regarding if the initial meeting in a telehealth situation should be in person. There were many different types of licensed nurses involved, and many functioned in call centers, which made face-to-face meetings impractical. Additionally, a case from Texas challenged such a requirement as a possible monopoly (anti-trust) violation.
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 5 to add items to the list of what a nurse shall include under informed consent; (3) to add Section 6 to establish that a continuing education provider may utilize telehealth pursuant to 201 KAR 20:220 in continuing education courses; and (4) to amend Sections 4 and 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.
TOURISM, ARTS AND HERITAGE CABINET: Department of Fish and Wildlife Resources: Game
301 KAR 2:095. Importation of cervid carcasses and parts. John Brunjes, migratory bird coordinator; Karen Waldrop, deputy commissioner; and David Wicker, general counsel, represented the department.
In response to questions by Co-Chair Harris, Ms. Waldrop stated that the department performed extensive testing of deer and elk for chronic wasting disease, and Kentucky had not identified any instances of chronic wasting disease to date. Chronic wasting disease had been detected in many surrounding states, including in far eastern regions of Virginia and West Virginia. The department relied on data from other states regarding expansion of chronic wasting disease and used biological data and modeling to determine high-risk areas for targeted surveillance and testing.
Co-Chair Harris encouraged the department to keep up the good work regarding the department’s impressive efforts to build Kentucky’s elk populations.
In response to questions by Senator Kerr, Ms. Waldrop stated that, while the Zika virus was a public health concern, it was not a wildlife issue. The department contributed to the Kentucky State Zika Conference, which took place in May, and was making efforts to educate hunters in the field about the risks and precautions. The department was unaware of statewide procedures to address Zika.
301 KAR 2:122. Seasons, methods, and limits for small game.
In response to questions by Co-Chair Harris, Ms. Waldrop stated that slingshot requirements only authorized manufactured hunting ammunition because using other ammunition, such as rocks, may reduce the efficacy of the projectile. Manufactured ammunition was developed to maintain a constant velocity and to effectively penetrate game, making a more lethal and ethical kill. Mr. Brunjes stated that manufactured ammunition was developed to maintain a consistent velocity. Ms. Waldrop stated that manufactured ammunition was in pellet form of standardized weights and came in different weights for different slingshot styles and hunting situations.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to make a technical correction; and (2) to amend Section 4 to correct a cross-reference citation. Without objection, and with agreement of the agency, the amendments were approved.
301 KAR 2:226. Youth waterfowl, moorhen, and gallinule hunting seasons.
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.
ENERGY AND ENVIRONMENT CABINET: Department for Environmental Protection: Division for Air Quality: Ambient Air Quality
401 KAR 53:010. Ambient air quality standards. Sean Alteri, director, represented the division.
In response to questions by Co-Chair Harris, Mr. Alteri stated that this administrative regulation was amended commensurate with updates to the federal ambient air quality standards, some of which had become more restrictive as a result of better data and health information. The previous one (1) in eight (8) hour average ozone concentration standard (seventy-five (75) ppb) was replaced in 2015 with an ozone standard of seventy (70) ppb. All Kentucky counties met that previous standard; however, the new seventy (70) ppb standard may be more difficult to meet, especially in Louisville and Northern Kentucky. The division received many legislative inquiries regarding replacing reformulated gasoline in these areas with, for example, Reid vapor pressure gasoline requirements consistent with Jeffersonville, Indiana and Cincinnati, Ohio. The division was considering these options in the context of U.S. EPA requirements. Requirements pertaining to dust monitoring should not affect agricultural activities, such as tilling or cutting hay, because particulate matter standards involved particles two and five tenths (2.5) microns or less, which could be trapped in the lungs. Particulate matter from typical agricultural activities was much larger and would not register with the monitoring equipment. U.S. EPA required ultra-low sulfur diesel fuel, which was making a difference regarding sulfur dioxide monitoring in Kentucky. Fuel producers and distributers and engine manufacturers were subject to the emissions standards from the operation of engines. This administrative regulation established ambient air quality standards, but the administrative regulation that establishes implementation may include additional requirements that may significantly impact the regulated community. That administrative regulation was not yet before this Subcommittee for consideration.
A motion was made and seconded to approve the following amendments: to amend Section 2 and a footnote to Appendix A to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
JUSTICE AND PUBLIC SAFETY CABINET: Department of Corrections: Office of the Secretary
501 KAR 6:020. Correction policies and procedures. Amy Barker, assistant general counsel, represented the department.
In response to questions by Representative Belcher, Ms. Barker stated that the Prison Rape Elimination Act protected vulnerable classes of inmates. The Prison Rape Elimination Act regulated how vulnerable classes of inmates are housed and provided training and reporting requirements, including the option for anonymous reporting. Ms. Barker stated that the department would follow up with more information regarding specific training details.
A motion was made and seconded to approve the following amendments: to amend Section 1 and the material incorporated by reference to: (1) comply with the drafting and formatting requirements of KRS Chapter 13A; (2) correct citations; and (3) update the edition dates of the revised policies. Without objection, and with agreement of the agency, the amendments were approved.
TRANSPORTATION CABINET: Office of the Secretary: Administration
600 KAR 1:031. Repeal of 600 KAR 1:030 and 600 KAR 1:045. Ann D’Angelo, assistant general counsel, represented the cabinet.
Toll Facilities
600 KAR 2:011. Repeal of 600 KAR 2:010, 2:020, 2:030, and 2:040.
Department of Vehicle Regulation: Motor Carriers
601 KAR 1:032. Repeal of 601 KAR 1:030, 601 KAR 1:031, 601 KAR 1:045, 601 KAR 1:050, 601 KAR 1:065, and 601 KAR 1:070.
Motor Vehicle Tax
601 KAR 9:056. Repeal of 601 KAR 9:055.
Division of Vehicle Enforcement: Commissioned Employees
601 KAR 15:030. Repeal of 601 KAR 15:010 and 601 KAR 15:020.
PUBLIC PROTECTION CABINET: Department of Financial Institutions: Division of Nondepository Institutions: Check Cashing
808 KAR 9:050. Required forms, procedures, and fees for applicants and licensees. Jessica Sharpe, general counsel, and Charles Vice, commissioner, represented the division.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY 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 Sections 2 through 5 and 8 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 July 14, 2016, meeting of the Subcommittee:
GENERAL GOVERNMENT CABINET: Board of Medical Licensure: Board
201 KAR 9:250. Registration and oversight of pain management facilities.
Board of Licensed Diabetes Educators: Board
201 KAR 45:110. Supervision and work experience.
PUBLIC PROTECTION CABINET: Department of Alcoholic Beverage Control: Licensing
804 KAR 4:400. ABC basic application and renewal form incorporated by reference.
The Subcommittee adjourned at 1:40 p.m. until July 14, 2016, at 1 p.m.