Call to Order and Roll Call
The September meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, September 13, 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, and Alice Forgy Kerr; Representatives Linda Belcher, and Tommy Turner.
Guests: Becky Gilpatrick, Kentucky Higher Education Assistance Authority; Lindsay Hughes Thurston, Office of the Secretary of State; Beau Barnes, Teachers’ Retirement System; Gary Morris, Steven Nave, Regina Ritchey, Department of Revenue; Scott Majors, Board of Physical Therapy; Nicole Sergent Biddle, Larry Disney, Real Estate Appraisers Board; Mary Badami, Nicole Sergent Biddle, Board of Licensure for Marriage and Family Therapy; Kim Coy DeCoste, Matt James, Board of Licensed Diabetes Educators; Dan Figert, Gabe Jenkins, Jeff Ross, Department of Fish and Wildlife Resources; Todd Allen, Kevin Brown, Department of Education; Kevin Brown, Chad Collins, Kentucky High School Athletic Association; Richard Linio, Morehead State University; Stephen Humphress, Melissa McQueen, Department of Alcoholic Beverage Control; Marni Gibson, Brian Raley, Department of Financial Depository Institutions; Holly Ross, Tammy Scruggs, Jessica Sharpe, Gary Stephens, Department of Financial Institutions; Sherry Culp, Kristi Gentry, Phyllis Sosa, Department for Aging and Independent Living; Mary Sparrow, Child Support Enforcement; Dr. Dale Bertram, Mike Rankin, Interactive Continuing Education Training.
LRC Staff: Sarah Amburgey, Emily Caudill, Betsy Cupp, Ange Darnell, Emily Harkenrider, Karen Howard, Carrie Klaber, and Donna Little.
The Administrative Regulation Review Subcommittee met on Tuesday, September 13, 2016, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
HIGHER EDUCATION ASSISTANCE AUTHORITY: Division of Student and Administrative Services: Kentucky Educational Excellence Scholarship Program
11 KAR 15:090. Kentucky Educational Excellence Scholarship (KEES) program. Becky Gilpatrick, director of student aid, represented the authority.
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 3, 4, 7, 9, and 11 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
OFFICE OF THE SECRETARY OF STATE: Occupational License Fees
30 KAR 7:010. Standard form for occupational license fee return. Lindsay Hughes Thurston, assistant secretary of state, represented the office.
FINANCE AND ADMINISTRATION CABINET: Teachers’ Retirement System: General Rules
102 KAR 1:165. Surviving children’s benefits. Beau Barnes, deputy executive secretary and general counsel, represented the system.
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 Section 12 to make a technical correction. Without objection, and with agreement of the agency, the amendments were approved.
102 KAR 1:290. Disability retirement application, review, and examinations.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and the STATUTORY AUTHORITY paragraphs to correct citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220; and (3) to amend Section 6 to make technical corrections. Without objection, and with agreement of the agency, the amendments were approved.
102 KAR 1:320. Qualified domestic relations orders.
In response to questions by Co-Chair Harris, Mr. Barnes stated that a Qualified Domestic Relations Order (QDRO) was used to determine the disposition of retirement assets in situations of divorce. The system did not receive notice of any concerns related to the fee for processing the QDRO. Because processing the QDRO was an extensive process, the fee was fair.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correct citations; (2) to amend Sections 2, 3, 7, and 9 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (3) to amend material incorporated by reference to add edition dates and make technical corrections. Without objection, and with agreement of the agency, the amendments were approved.
Department of Revenue: Office of Income Taxation: Income Tax; General Administration
103 KAR 15:180 & E. Kentucky new markets development program tax credit. Gary Morris, policy advisor, and Regina Ritchey, section supervisor, represented the department.
GENERAL GOVERNMENT CABINET: Board of Physical Therapy: Board
201 KAR 22:045. Continued competency requirements and procedures. Scott Majors, executive director, represented the board.
In response to a question by Co-Chair Harris, Mr. Majors stated that proof of compliance with continued competency requirements was required biennially in odd-numbered years. Before this amendment, a credential holder was able to request an extension for submitting the proof of compliance without a deadline for filing the request. The lack of a deadline sometimes resulted in the board having to take retroactive action pertaining to extension requests; therefore, the board submitted this amendment to establish a deadline to provide adequate time for the credential holder to submit the justification for an extension and adequate time for the board to process the request.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2 to comply with the drafting requirements of KRS Chapter 13A; (2) to amend Section 3 to revise the edition date of the Exemption or Extension for Completion of Continued Competency Form; and (3) to update the form: (a) for consistency with the administrative regulation; and (b) to clarify the two (2) different deadlines for hardship and nonhardship extension application requests. 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 Representative Belcher, Mr. Disney stated that certified and licensed real estate appraisers were required to have at least a four (4) year, postsecondary degree, financed without board assistance. After the four (4) year, postsecondary degree, applicants were required to obtain 200 to 300 hours of real estate-specific coursework, also financed without board assistance. There were federal requirements for training and experience, and applicants were required to pass an examination. The examination fee was $200, and applicants needed the twelve (12) dollar manual. There was also a forty (40) dollar federal registration fee. Kentucky maintained approximately 1,500 credentialed or licensed real estate appraisers and had not experienced shortages. The changes to these requirements may help access because required supervision could come from outside of Kentucky.
In response to a question by Co-Chair Harris, Mr. Disney stated that the credentialing or licensure examination was developed by a nonprofit organization established by Congress. The examination was then subject to oversight by the FDIC.
A motion was made and seconded to approve the following amendments: to amend Section 2 to: (1) comply with the drafting requirements of KRS Chapter 13A; (2) clarify that the supervising appraiser shall have been a state certified real property appraiser for at least three (3) years; and (3) clarify that a first-time applicant shall attend the board-approved course in supervision-training practices prior to being issued an associate license. Without objection, and with agreement of the agency, the amendments were approved.
Board of Licensure for Marriage and Family Therapists: Board
201 KAR 32:030. Fees. Mary Badami, chair, and Nicole Biddle, assistant attorney general, represented the board. Dr. Dale Bertram, educational coordinator, and Mike Rankin, marriage and family therapist, represented Interactive Continuing Education Training and appeared in support of this administrative regulation.
In response to a question by Representative Belcher, Dr. Bertram stated that this administrative regulation did not affect pastoral counselors.
In response to a question by Co-Chair Harris, Ms. Badami stated that there had been concern from stakeholders regarding the fee structure. The previous fee structure was inequitable in some situations; therefore, after examining the fee structures of other states, the board developed this new fee structure that was intended to be more equitable to all groups. Some fees had increased, but most were in effect reduced.
A motion was made and seconded to approve the following amendments: (1) to add a citation to the RELATES TO paragraph; (2) to amend Section 7 to clarify that domestic violence training shall be completed within three (3) years of licensure as required by 201 KAR 32:060; (3) to amend Section 8 to simplify the fee structure for continuing education workshops with a fee of: (a) fifty (50) dollars per day for six (6) workshops or less offered a single time; (b) $125 per day for seven (7) or more workshops offered a single time; and (c) $250 for a single workshop offered unlimited times in a calendar year; (4) to amend Sections 3, 4, 5, 7, 8, and 9 to comply with the drafting requirements of KRS Chapter 13A; (5) to revise the REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT to update the response to question (9) to reflect the new lengths of the workshops; and (6) to update the Continuing Education Program Provider Approval Application to include the updated fee structure. Without objection, and with agreement of the agency, the amendments were approved.
Board of Licensed Diabetes Educators: Board
201 KAR 45:110. Supervision and work experience. Kim DeCoste, chair, and Matt James, assistant attorney general, represented the board.
In response to questions by Senator Kerr, Ms. DeCoste stated that the board did not intend to weaken requirements. Kentucky had access problems, especially in rural areas that tended to have high rates of diabetes. The agency amendment strengthened requirements by requiring supervision during diabetes education, rather than just meeting with the supervisor. Diabetes education in Kentucky was improving, and Kentucky had many dedicated diabetes educators.
In response to questions by Co-Chair Harris, Ms. DeCoste stated that the board did not require an examination for licensure. There was an examination developed by a national certification board; however, it was not appropriate for an entry-level diabetes educator. Kentucky was the first state to develop a diabetes educator licensure program, and the national examination was expensive. With appropriate supervision, Kentucky was able to license high-quality diabetes educators. Licensed diabetes educators already had a healthcare background, such as a nurse or dietician, but a licensed diabetes educator was able to reach beyond the boundaries of those licensure programs into more in-depth matters related to diabetes.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2 to establish that: (a) prior to the apprentice applying for licensure, the supervisor shall observe the apprentice providing diabetes education to a patient while the supervisor is physically present in the same room on at least two (2) separate occasions, for a combined total of at least four (4) hours, two (2) hours of which shall have occurred within the last twelve (12) months preceding licensure application; and (b) the apprentice shall be responsible for obtaining any permissions, releases, or waivers required by law in order for the supervisor to observe the apprentice providing diabetes education to a patient; and (2) to amend the Supervised Work Experience Report, incorporated by reference in Section 4, to clarify that the assessment referenced is for entry-level diabetes educators. 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 1:015. Boat and motor restrictions. Dan Figert, assistant wildlife director; Gabe Jenkins, big game coordinator; and Jeff Ross, program manager, represented the department.
301 KAR 1:201. Taking of fish by traditional fishing methods.
In response to questions by Representative Belcher, Mr. Ross stated that fishing requirements were determined based on species, the local ecosystem, and angler behaviors. Because of the delicate balances involved, the department established specific requirements for each local ecosystem in order to appropriately manage fish populations. The department limited overly frequent amendment of fishing requirements to avoid angler confusion.
A motion was made and seconded to approve the following amendments: to amend Section 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.
Game
301 KAR 2:132. Elk quota hunts, elk depredation permits, landowner cooperator permits, and voucher cooperator permits.
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, general counsel, Board of Education, and Chad Collins, general counsel, Kentucky High School Athletic Association, represented the department.
In response to questions by Co-Chair Harris, Mr. Collins stated that there had not been a major problem with middle school athletics; however, middle school administrations requested consistency regarding education-based athletics. Middle school athletic venues were an extension of the classroom and should have standards. The required dead period between June 25 and July 9 was an effort to reduce pressure for constant athletic involvement, especially in the current sports-specialization atmosphere. The dead period, which was consistent with the dead period for high school athletics, gave student athletes, administrators, and families down time to vacation or rest from the pressure of athletic involvement.
In response to a question by Representative Belcher, Mr. Collins stated that during the dead period, school athletic facilities were closed and schools were not allowed to require mandatory athletic practice or activities. Informal practices were not prohibited; however, students could not be penalized for failure to participate during the dead period.
A motion was made and seconded to approve the following amendments: (1) to establish definitions; (2) to amend Section 4(2)(c) to establish that a “bona fide accrediting agency” for CPR training programs shall be approved by the KHSAA based upon industry standards; (3) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 2, 4, and 6 to comply with the drafting and formatting requirements of KRS Chapter 13A and to make technical corrections; and (4) to amend material incorporated by reference to make conforming changes and technical corrections. Without objection, and with agreement of the agency, the amendments were approved.
Learning Results Services
703 KAR 4:041. Repeal of 703 KAR 4:040.
Office of Instruction
704 KAR 3:342. Repeal of 704 KAR 3:340.
PUBLIC PROTECTION CABINET: Department of Alcoholic Beverage Control: Licensing
804 KAR 4:381. Repeal of 804 KAR 4:380. Stephen Humphress, general counsel, and Melissa McQueen, staff attorney, represented the department.
804 KAR 4:390. License renewals.
A motion was made and seconded to approve the following amendment: to amend Section 7 to correct the licensure term for statewide and out-of-state licenses to January 1 through December 31 of the same year rather than the following year. Without objection, and with agreement of the agency, the amendment was approved.
804 KAR 4:400 & E. ABC basic application and renewal form incorporated by reference.
A motion was made and seconded to approve the following amendments: (1) to amend Section 3 to correct edition dates for the revised forms; and (2) to amend the Basic Application form to: (a) correct a statutory reference; (b) require that the local ABC administrator's name be printed below his or her signature; and (c) comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
804 KAR 4:410 & E. Special applications and registration forms incorporated by reference.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2 to: (a) comply with the drafting requirements of KRS Chapter 13A; and (b) delete outdated links to the product registration forms; (2) to amend Section 3 to include references to two (2) new forms; (3) to amend Section 4 to correct edition dates for the revised forms; (4) to amend the Special Temporary License Application to require that the local ABC administrator’s name be printed below his or her signature; (5) to amend the Supplemental License Application to: (a) correct the amount of the NQ3 Retail Drink Supplemental Bar License fee from $320 to $310; and (b) require that the local ABC administrator's name be printed below his or her signature; and (6) to amend the ABC Retailer Sampling Notification form to correct a statutory reference. Without objection, and with agreement of the agency, the amendments were approved.
Department of Financial Institutions: Division of Depository Institutions: Administration
808 KAR 1:081. Repeal of 808 KAR 1:080 and 808 KAR 1:100. Marni Gibson, director, Division of Depository Institutions; Brian Raley, acting deputy commissioner; Tammy Scruggs, director, Division of Nondepository Institutions; and Jessica Sharpe, general counsel, represented the department.
808 KAR 1:160. Fees for services rendered to banks and trust companies.
In response to questions by Co-Chair Harris, Mr. Raley stated that there were some stakeholder concerns regarding the fees. The division had used an internal fee schedule since the 1980s. The authorizing statute required the fee to be adequate to recoup the division’s processing costs. The fees were comparable to other states.
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 1 to make a technical correction; and (3) to amend Section 2 to clarify language. Without objection, and with agreement of the agency, the amendments were approved.
Division of Nondepository Institutions: Finance Charges
808 KAR 4:021. Repeal of 808 KAR 4:020.
Division of Depository Institutions: Multibank Companies
808 KAR 11:011. Repeal of 808 KAR 11:010.
Division of Non-Depository Institutions: Mortgage Loan Companies and Mortgage Loan Brokers
808 KAR 12:021. Licensing and registration.
In response to questions by Co-Chair Harris, Mr. Raley stated that the FBI background checks required by this administrative regulation and 808 KAR 12:055 had been required since 2009 to safeguard the industry. Mortgage loan originators were required by statute to submit annual FBI background checks. Mortgage loan processors were only required to submit an FBI background check at their hiring, not annually. Banks and credit unions were chartered separately from nondepository institutions. Nondepository institutions, including each branch if applicable, were required to be licensed. Stakeholders had not expressed concern regarding the FBI background checks.
808 KAR 12:055. Uniform standards for mortgage loan processor applicant employee background checks.
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 Section 3 to add a cross reference to subsection (4) of the administrative regulation that outlines what is not a conviction for consistency with House Bill 40 from the 2016 Regular Session; and (3) 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.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Aging and Independent Living: Division of Operations and Support: Aging Services
910 KAR 1:210. Kentucky long-term care ombudsman program. Sherry Culp, long-term care ombudsman; Kristi Gentry, executive assistant; and Phyllis Sosa, staff assistant, represented the division.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 2, 3, 8, 9, 11, 13, and 15 to correct citations and to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Department for Income Support: Child Support Enforcement: Family Support
921 KAR 1:420. Child support distribution. Mary Sparrow, policy analyst, represented the department.
The following administrative regulations were deferred to the October 11, 2016, meeting of the Subcommittee:
OFFICE OF THE ATTORNEY GENERAL: Office of Consumer Protection: Office
40 KAR 2:145. Funeral planning declaration form.
TRANSPORTATION CABINET: Division of Driver Licensing: Administration
601 KAR 2:030 & E. Ignition interlock.
MOREHEAD STATE UNIVERSITY: Board of Regents: Board
755 KAR 1:080. Capital construction procedures.
LABOR CABINET: Department of Workforce Standards: Division of Safety and Health Compliance: Division of Occupational Safety and Health Education and Training: Occupational Safety and Health
803 KAR 2:412. Fall protection.
The Subcommittee adjourned at 2:10 p.m. until October 11, 2016, at 1 p.m.