Call to Order and Roll Call
The July meeting of the Administrative Regulation Review Subcommittee was held on Thursday, July 14, 2016, at 11:00 AM, 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 Perry B. Clark and Alice Forgy Kerr; Representative Will Coursey.
Guests: Leanne Diakov, Board of Medical Licensure; Brian Judy, Sonja Minch, Board of Barbering; John Marcus Jones, Tamera McDaniel, Peggy Lacy Moore, Kathleen Schell, Board of Respiratory Care; Sheryl Abercrombie, Elizabeth Morgan, Board of Medical Imaging and Radiation Therapy; Karen Waldrop, David Wicker, Department of Fish and Wildlife Resources; Tony Hatton, Department for Environmental Protection; Chase Bannister, Matt Chaliff, Jennifer Fraker, Department of Education; Mike Pettit, Kristi Redmon, Chuck Stribling, Michael Swansburg, Labor Cabinet, Steven Edwards, Stephen Humphress, Department of Alcoholic Beverage Control; Laura Begin, Paula Goff, Matt McKinley, Curt Pendergrass, Department for Public Health; Elizabeth Caywood, Darlene Hoover, Department of Community Based Services; Heather Richardson, Department for Community Based Services; Charles Cole, Janet Wilson, City of Somerset, Chris Daniels, Jason Nemes, Vinay Patel, Somerset license holders.
LRC Staff: Sarah Amburgey, Ange Bertholf, Betsy Cupp, Emily Harkenrider, Carrie Klaber, and Donna Little.
The Administrative Regulation Review Subcommittee met on Thursday, July 14, 2016, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
GENERAL GOVERNMENT CABINET: Board of Medical Licensure: Board
201 KAR 9:250. Registration and oversight of pain management facilities. Leanne Diakov, general counsel, represented the board.
In response to questions by Co-Chair Harris, Ms. Diakov stated that physician-present supervision requirements may have been established by KRS Chapter 218A, as well as this administrative regulation. Supervising physician presence was required at least fifty (50) percent of the time patients were present. Since amendment of KRS Chapter 218A, the board reported drastically fewer cases of inappropriate prescribing by these facilities. Co-Chair Marzian stated that nurse practitioners were authorized to prescribe scheduled substances on a very limited basis. A physical was required before prescribing, and the amendments to KRS Chapter 218A were having a positive impact on the problem of prescription abuse.
A motion was made and seconded to approve the following amendments: to amend Sections 3, 4, 5, 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.
Board of Barbering: Board
201 KAR 14:015. Retaking of examination. Brian Judy, assistant attorney general, and Sonja Minch, administrator, represented the board.
In response to questions by Senator Kerr, Ms. Minch stated that after 1,500 hours of formal education, a student may take the probationary examination. If the student failed the examination once, the student may retake the probationary examination; however, if the student failed the examination twice, the student was required to acquire eighty (80) additional clock hours of formal education at a Kentucky-licensed barber school. Typically, if a student failed the probationary exam after formal education at an out-of-state barber school, the failed portion was related to Kentucky’s sanitation laws, which would not be taught at an out-of-state school. Thus, a student who failed the probationary examination twice was required to acquire eighty (80) additional clock hours of formal education at a Kentucky-licensed barber school.
In response to a question by Co-Chair Harris, Ms. Minch stated that the 1,500 hours of formal education included both classroom and clinical training.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to correct citations; (2) to amend Section 1 to comply with the drafting requirements of KRS Chapter 13A; and (3) to amend Section 3 to change the terminology from "instructor" to "teacher" for consistency with KRS 317.440 and 317.450 and 201 KAR 14:125. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 14:030. Five (5) year expiration of license.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to: (1) make a technical correction; and (2) clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 14:045. Notification of new locations.
A motion was made and seconded to approve the following amendments: (1) to amend the TITLE to clarify that this administrative regulation applies to a new barber shop, which requires an inspection; (2) to amend the STATUTORY AUTHORITY paragraph to correct a citation; (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 Section 3 to cross reference 201 KAR 14:040, which also regulates the inspections of shops and schools. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 14:090. School curriculum.
In response to questions by Senator Clark, Ms. Minch stated that this administrative regulation addressed concerns regarding lack of experience for barber school teachers. 201 KAR 14:125 was recently filed to more fully address this issue, but this administrative regulation required a minimum of three (3) years of experience for a head teacher.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph and Section 2 to correct citations; (2) to amend Section 1 to: (a) comply with the drafting requirements of KRS Chapter 13A; and (b) change the terminology from "instructor" to "teacher" for consistency with KRS Chapter 317; and (3) to amend Section 4 to delete the reference to "teacher assistant" and instead state that a teacher licensed for less than twelve (12) months who has not completed 600 hours of instructional experience obtained while under the supervision of a board-licensed teacher with a minimum of three (3) years of experience and in a barber school licensed by the board shall not be counted as a teacher for the purposes of compliance with the ratio requirement. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 14:110. School equipment; plant layout.
In response to a question by Co-Chair Harris, Ms. Minch stated that shampoo bowls with hot and cold running water were required to be in the room where barbering was done so that the client could witness the barber washing his or her hands before providing barbering services. It was a measure to ensure sanitation.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 3, 4, 5, 8, 10, and 11: (a) for clarity; and (b) to comply with the drafting and formatting requirements of KRS Chapter 13A; and (2) to amend Section 12 to clarify that the exemption applies to only the shampoo bowls with hot and cold running water established in Section 10 of this administrative regulation. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 14:150. School records.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1 and 3 to change references from "instructor" to "teacher"; and (2) to amend Section 6 to: (a) require the board to produce records immediately during hours the school is scheduled to be open and providing services; and (b) clarify that, if the request is made when the school is closed and not providing services, the school shall produce the record within two (2) hours of the next normal day of business. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 14:180. License fees, examination fees, renewal fees, and expiration fees.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1 through 4 to delete references to “teacher assistants” to conform with statutory authority; and (2) to add a new Section 7 to clarify the purpose of and what an individual shall be allowed to do in relation to certification and demonstration fees. Without objection, and with agreement of the agency, the amendments were approved.
Board of Respiratory Care: Board
201 KAR 29:015. Fees. John Marcus Jones, assistant attorney general; Tamara McDaniel, vice-chair; and Kathleen Schell, board member, represented the board.
In response to questions by Co-Chair Harris, Ms. McDaniel stated that it had been approximately ten (10) years since the board had raised fees. The board had experienced many cost increases, including retirement factor increases and significant rent increases. The fee increases in this administrative regulation would allow the board to meet its current budgetary needs. The board was very fiscally responsible.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs to correct citations; and (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. Without objection, and with agreement of the agency, the amendments were approved.
Board of Medical Imaging and Radiation Therapy: Board
201 KAR 46:020. Fees. Sheryl Abercrombie, chair; Brian Judy, assistant attorney general; and Elizabeth Morgan, executive director, represented the board.
A motion was made and seconded to approve the following amendments: to amend Section 14 to correct citations. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 46:070. Violations and enforcement.
A motion was made and seconded to approve the following amendments: to amend Section 3 to: (1) clarify that the penalty applies to an individual who performed a procedure without valid licensure; and (b) delete a cross-reference. 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 2:176. Deer control tags, deer destruction permits, and landowner designees. Karen Waldrop, deputy commissioner, and David Wicker, general counsel, represented the department.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to delete the definition for “damage”; and (2) to amend Sections 1 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.
301 KAR 2:221 & E. Waterfowl seasons and limits.
A motion was made and seconded to approve the following amendments: to amend Sections 3 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.
301 KAR 2:222 & E. Waterfowl hunting requirements on public lands.
A motion was made and seconded to approve the following amendments: to amend Sections 3 and 4 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
301 KAR 2:225 & E. Dove, wood duck, teal, and other migratory game bird hunting.
Licensing
301 KAR 5:040. Migratory Bird Harvest Information Program.
A motion was made and seconded to approve the following amendment: to amend Section 1 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendment was approved.
ENERGY AND ENVIRONMENT CABINET: Department for Environmental Protection: Division of Waste Management: Identification and Listing of Hazardous Waste
401 KAR 31:040 & E. Lists of hazardous wastes. Tony Hatton, executive director, represented the division.
In response to a question by Co-Chair Harris, Mr. Hatton stated that this administrative regulation was being amended to address HB 106 of the 2016 Regular Session of the General Assembly, which provided for the destruction of chemical munitions at Bluegrass Army Depot. This administrative regulation also reclassified aluminum processing wastewater from the automotive industry as a nonhazardous, solid waste under specific circumstances, including that the waste shall not be placed on the land.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to make technical corrections; and (2) to amend Sections 1 through 4 to insert citation replacements that were inadvertently omitted from the initial filing. 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 3:471. Repeal of 704 KAR 3:470. Chase Bannister, attorney; Matt Chaliff, executive director; and Jennifer Fraker, policy advisor, represented the board.
Department for Technical Education: Instructional Programs
780 KAR 4:031. Repeal of 780 KAR 4:030.
Facilities and Equipment of the Kentucky TECH System
780 KAR 7:060. Equipment inventory and insurance.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and STATUTORY AUTHORITY paragraphs 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; (3) to amend Section 1 to define terms; and (4) to amend Section 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.
780 KAR 7:071. Repeal of 780 KAR 7:070.
LABOR CABINET: Department of Workplace Standards: Division of Occupational Safety and Health Compliance: Division of Occupational Safety and Health Education and Training: Occupational Safety and Health
803 KAR 2:300. General. Mike Pettit, safety standards interpretation; Kristi Redmon, occupational safety and health specialist; and Michael Swansburg, general counsel, represented the department.
In response to questions by Co-Chair Harris, Ms. Redmon stated that these administrative regulations were being amended pursuant to federal OSHA requirements. Kentucky was not required to adopt all of these requirements; however, the division adopted all of these requirements in order to be as protective as the federal program. Several administrative regulations in this package related to federally mandated protection from respirable silica particles. The new exposure limit was twenty (20) percent lower than the previous limit. Silica was a recognized carcinogen.
Co-Chair Marzian stated that, as a healthcare professional in a transplant office, there were workers with silica exposure who presented at her facility with cancer.
803 KAR 2:307. Hazardous materials.
A motion was made and seconded to approve the following amendments: to amend Section 2 to correct a citation. Without objection, and with agreement of the agency, the amendments were approved.
803 KAR 2:308. Personal protective equipment.
In response to a question by Co-Chair Harris, Ms. Redmon stated that face and eye protection requirements were updated commensurate with federal consensus standards. There were no new compliance requirements, rather there were new equipment options that may be chosen in lieu of previous standards.
803 KAR 2:317. Special industries.
803 KAR 2:318. Electrical.
803 KAR 2:320. Toxic and hazardous substances.
803 KAR 2:400. Adoption of 29 C.F.R. 1926.1-6.
A motion was made and seconded to approve the following amendments: 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. Without objection, and with agreement of the agency, the amendments were approved.
803 KAR 2:403. Occupational health and environmental controls.
803 KAR 2:404. Personal protective and lifesaving equipment.
803 KAR 2:421. 29 C.F.R. Part 1926.950-968.
803 KAR 2:425. Toxic and hazardous substances.
803 KAR 2:500. Maritime employment.
PUBLIC PROTECTION CABINET: Department of Alcoholic Beverage Control: Quotas
804 KAR 9:040. Quota retail package licenses. Steven Edwards, commissioner; Stephen Humphress, general counsel; and Carol Beth Martin, malt beverage administrator, represented the department. Chris Daniels, Somerset retail package store owner; Jason Nemes, attorney; and Vinay Patel, Somerset retail package store owner, appeared in opposition to this administrative regulation.
In response to a question by Co-Chair Marzian, Mr. Edwards stated that the court directed the department to change the number of quota retail package licenses issued to City of Somerset. The department, in exercising the discretion directed by the court, issued ten (10) quota retail package licenses to City of Somerset based on market size.
In response to questions by Senator Clark, Mr. Humphress stated that at the time Somerset voted “wet,” the board was authorized to establish a specific quota for the city. At that time, this administrative regulation required the quota to be population based (one (1) per 2,300 people), which would have resulted in five (5) licenses. Because numerous cities within “dry” counties had been voting “wet,” this administrative regulation was then amended to still be population based, but with exceptions for cities that demonstrated a market size that warranted more licenses than the population calculation established. After that amendment, City of Somerset petitioned the board to present data to establish that more than five (5) licenses were warranted.
Mr. Nemes stated that this administrative regulation required quota retail package licenses to be issued based on population unless a city demonstrated changes that warranted additional licenses. Somerset had recently experienced a population decrease, not an increase. The court’s decision did not require the board to issue ten (10) licenses, but required the board to use its discretion to determine the appropriate number of licenses to be issued. Many other areas near Somerset recently also voted “wet;” therefore, there was more supply available than previously. There were already too many licenses available in Somerset that more than met the demand. The most Somerset should have been issued was five (5) licenses. This administrative regulation violated existing law, in that it allowed more than one (1) additional license per 1,500 people. A city requesting additional licenses was required to submit an economic impact study that demonstrated the necessity for more licenses, that there had been a change in circumstances, and that the current license quota was inadequate. Somerset failed to demonstrate that current license holders were failing to meet the demand. The issuance of ten (10) licenses was an arbitrary number, without basis from the economic data. Mr. Nemes supported free markets; however, alcohol sales was not a free market because of various forms of restraint, such as limited advertising, mandated pricing, restricted employees, and restricted sales. Normal, free-market competition was inappropriate for this industry. Three (3) years ago, when the citizens of Somerset voted “wet,” they did so with the understanding that there would be a maximum of five (5) licenses based on this administrative regulation. Current license holders who had made significant investments based on this administrative regulation had already been harmed by the increased competition. Sales were down thirty (30) percent in the last two (2) years. The new licenses would further reduce demand and sales. This administrative regulation should be found deficient or deferred until Somerset demonstrated the necessity for these licenses, as required by the statute and this administrative regulation.
Senator Clark stated that Mr. Nemes’ testimony regarding support of the free market seemed contradictory because Mr. Nemes did not support the free market as it pertained to Somerset’s licenses and this administrative regulation. Alcoholic beverage control statutes and administrative regulations were unusual because the law approached the subject from the view of prohibition, rather than from the view of the free market. Senator Clark stated that these requirements were too limited even with ten (10) licenses and that the free market should prevail in this industry. The significant sales in Somerset was at least partly the result of successful local tourism.
Mr. Edwards stated that the argument that the board was limited to the population ratio of one (1) license per 2,300 people was technically incorrect, as shown by a comparison of other cities with similar or larger populations. The economic data presented on behalf of additional licenses for Somerset was striking, in that Somerset was shown to have demand far greater than similarly populated cities and even some cities with larger populations. Somerset had annual sales of $673,739, which was more than Richmond, which was three (3) times as large in population; Ashland, which was twice as large in population; Nicholasville, which was nearly three (3) times as large in population; and other similarly large cities. Somerset had been ranked as one (1) of the top ten (10) performing micropolitan areas out of 536 micropolitan areas. Based on the economic data, Somerset seemed to deserve the opportunity to grow and have these additional licenses. Mr. Humphress stated that the court order specifically directed the board to use the requirements established in the previous 2013 version of this administrative regulation; therefore, the economic demonstration was not necessary because that was not a component of this administrative regulation in that previous version.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Public Health: Division of Maternal and Child Health: Maternal and Child Health
902 KAR 4:120. Health Access Nurturing Development Services (HANDS) Program. Laura Begin, regulation coordinator, and Paula Goff, branch manager, represented the department.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2 to specify a form and for clarity; and (2) 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.
Radiology
902 KAR 100:030. Quantities of radioactive material requiring labeling. Laura Begin, regulation coordinator, and Dr. Curt Pendergrass, radioactive material specialist, represented the department.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 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.
902 KAR 100:080. Exempt quantities.
A motion was made and seconded to approve the following amendments: 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.
902 KAR 100:085. Exempt concentrations.
A motion was made and seconded to approve the following amendments: 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.
Department for Community Based Services: Division of Family Support: Supplemental Nutrition Assistance Program
921 KAR 3:035 & E. Certification process. Elizabeth Caywood, policy analyst, represented the department.
In response to questions by Co-Chair Harris, Ms. Caywood stated that the SNAP program was extending review to the maximum federally allowable review period, which was twelve (12) months; however, there was an interim review requirement to review income and contact information. SNAP recipients were also required to inform the cabinet of changes that may affect eligibility or benefits, such as income fluctuations or employment status.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2 to delete language suggesting that the time periods for household certification were minimums, in order to comply with 7 C.F.R. 273.10(f), which indicated that these were maximum time periods; and (2) to amend Section 5 for clarification. Without objection, and with agreement of the agency, the amendments were approved.
Division of Protection and Permanency: Child Welfare
922 KAR 1:320 & E. Service appeals for Title 922 KAR Chapters 1, 3, and 5.
Division of Child Care: Day Care
922 KAR 2:020 & E. Child Care Assistance Program (CCAP) improper payments, claims, and penalties.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 3, 6, 7, 8, and 17 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
922 KAR 2:160 & E. Child Care Assistance Program.
In response to questions by Co-Chair Marzian, Ms. Caywood stated that Kentucky was awarded a Race to the Top Early Learning Challenge Grant. The cabinet was implementing in phases a new All Stars Quality Rating System, which was in addition to the existing Stars for Kids Now Rating System. The new system would begin as a pilot phase, then be subject to modification and a determination of the system’s viability. Initially, the All Stars program was voluntary.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 9, 15, and 19 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
922 KAR 2:260 & E. Child care service appeals.
The following administrative regulations were deferred to the August 4, 2016, meeting of the Subcommittee:
FINANCE AND ADMINISTRATION CABINET: Executive Branch Ethics Commission: Commission
9 KAR 1:040 & E. Registration and expenditure statements; financial transactions and termination forms; and enforcement.
PUBLIC PROTECTION CABINET: Office of Occupations and Professions: Athlete Agents
200 KAR 30:010. Definitions for 200 KAR Chapter 30.
200 KAR 30:020. Complaint review.
200 KAR 30:030. Procedure for registration.
200 KAR 30:040. Fees.
200 KAR 30:051. Repeal of 200 KAR 30:050 and 200 KAR 30:060.
200 KAR 30:070. Records retention.
GENERAL GOVERNMENT CABINET: Board of Licensed Diabetes Educators: Board
201 KAR 45:110. Supervision and work experience.
LABOR CABINET: Department of Workers’ Claims: Department
803 KAR 25:010. Procedure for adjustments of claims.
803 KAR 25:014. Repeal of 803 KAR 25:009.
The Subcommittee adjourned at 12:20 p.m. until August 4, 2016, at 11 a.m.