Call to Order and Roll Call
The December meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, December 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; Senators Julie Raque Adams and Alice Forgy Kerr; Representatives Linda Belcher and Tommy Turner.
Guests: Linda Hampton, Wayne Lewis, Patrick Shirley, Governor’s Office of Early Childhood Development Authority; Caroline Atkins, Robert King, Sarah Levy, Jay Morgan, Council on Postsecondary Education; Carrie Bishop, Finance and Administration Cabinet; Keith Peynter, Board of Chiropractic Examiners; Larry Brown, Tammy John-son, Carson Kerr, Board of Durable Medical Equipment Suppliers; Karen Waldrop, David Wicker, Department of Fish and Wildlife Resources; Amy Barker, Department of Corrections; Chase Bannister, Robin Kinney, Lisa Moore, Amy Peabody, Leslie Slaughter, Department of Education; Steve Humphress, Melissa McQueen, Department of Alcoholic Beverage Control; Justin Dearinger, Tanya Dickenson, Department for Behavioral Health, Developmental and Intellectual Disabilities; Elizabeth Caywood, Todd Tripp, Department for Community Based Services; Chet Hayes.
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, December 13, 2016, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
GOVERNOR’S OFFICE: Early Childhood Development Authority
10 KAR 6:010. Duties of the Early Childhood Advisory Council. Linda Hampton, acting director; Wayne Lewis, executive director of education programs; and Patrick Shirley, staff attorney, represented the authority.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to delete citations to repealed statutes; (2) to amend Section 3: (a) to make a technical correction; and (b) for clarity; and (3) to amend Sections 4 through 6 to com-ply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
COUNCIL ON POSTSECONDARY EDUCATION: Public Educational Institutions
13 KAR 2:060. Degree program approval; equal opportunity goals. Caroline Atkins, senior associate; Robert King, council president; Sarah Levy, director of postsecondary licensing; and Jay Morgan, council vice president, represented the council.
In response to a question by Co-Chair Harris, Mr. King stated that the statewide diversity policy addressed challenges such as disparity in graduation rates between minority students and the larger population. This administrative regulation established strategies for public educational institutions to promote and enhance minority graduation rates. Approximately forty (40) years ago, Kentucky was cited for having policies that intentionally limited minority access to public educational institutions, which resulted in a special order from the U.S. Department of Education to address those imbalances. The special order was lifted; however, the council had an ongoing obligation to monitor issues of diversity at all public educational institutions. Additionally, a Kentucky statute was in place to require the council to conduct this monitoring and to address imbalances discovered by the monitoring. For example, the council may prohibit an institution from offering new academic programs until that institution complied with statewide diversity policies. This administrative regulation clarifies standards and enhances oversight.
In response to questions by Senator Kerr, Mr. King stated that each public educational institution developed distinct diversity strategies. Strategies were then evaluated uniformly by the council using results-based criteria. The council would share strategies with proven outcomes to other public educational institutions. There was a committee that served with the council to provide oversight and ensure transparency. Ms. Atkins stated that the committee used separate rubrics for two (2) year and four (4) year institutions to qualitatively and quantitatively evaluate diversity programs.
In response to a question by Representative Belcher, Mr. King stated that graduation rate data were available on the council’s Web site, and the council would provide specific data to members of the subcommittee.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to change a definition term from “diversity-ty policy” to “policy” for consistency throughout the administrative regulation; and (2) to amend Section 5 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Interstate Reciprocity Agreements
13 KAR 4:010 & E. State Authorization Reciprocity Agreement.
In response to questions by Co-Chair Harris, Ms. Levy stated that this agreement was new for Kentucky. Except for six (6) states, all states had joined as member states. Kentucky was a later state to join the agreement. The agreement allowed a student who was a resident of Kentucky to take courses from institutions in other member states. In order to be approved as a participating institution in the agreement, the institution was required to be authorized by the member state and accredited by an accrediting agency recognized by the U.S. Department of Edu-cation, meet faculty qualification standards, have certain curriculum standards, and comply with truth-in-advertising requirements. In addition, a nonpublic institution was required to demonstrate financial stability, as shown by the financial responsibility score determined by the U.S. Department of Education. Mr. King stated that the agreement allowed institutions of member states to offer courses to students in other states without the institutions being licensed in those states. The agreement was not necessarily a course quality-assurance program. Becoming a member state to the agreement required Kentucky to waive some quality-assurance requirements. The council was tasked with consumer-protection responsibilities.
In response to questions by Representative Belcher, Mr. King stated that this administrative regulation did not affect the transferability of credits from institutions within Kentucky. Due to legislation from the 2010 or 2011 Regular Session of the General Assembly, there was broader and more consistent transferability of credits, largely from two (2) year institutions to four (4) year institutions. Transferability of credits from four (4) year to four (4) year institutions was broad for standard core courses with well-established learning outcomes but varied for more specialized or advanced courses.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to delete a term that is not used in the administrative regulation; (2) to amend Sections 2 and 3 to reference the Web site for the National Council for State Authorization Reciprocity Agreements (NC-SARA) for the purpose of obtaining forms required by NC-SARA; and (3) to amend Sections 2, 3, 5, and 6 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
FINANCE AND ADMINISTRATION CABINET: Office of the Secretary: Travel Expense and Reimbursement
200 KAR 2:006 & E. Employees’ reimbursement for travel. Carey Bishop, staff attorney, represented the office.
In response to a question by Co-Chair Harris, Mr. Bishop stated that travel reimbursement rates were available on the controller’s Web site. This administrative regulation established the forms required to apply for reimbursement.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to delete a superfluous definition; (2) to amend Section 2 to specify when the Travel Voucher Prepaid Registration Fees: Multiple Cost Distribution document is used; (3) to amend Section 6 to clarify reimbursement procedures if using state park facilities; and (4) to amend Sections 1, 2, 4, 7, 10, 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.
GENERAL GOVERNMENT CABINET: Board of Chiropractic Examiners: Board
201 KAR 21:025. Board; officers, duties. Keith Poynter, general counsel, represented the board.
A motion was made and seconded to approve the following amendments: (1) to amend the TITLE for clarity; (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 2 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 21:041. Licensing; standards, fees.
Board of Durable Medical Equipment Suppliers: Board
201 KAR 47:010 & E. Home medical equipment and supplier licenses, requirements, and fees. Larry Brown, commissioner; Carson Kerr, executive advisor; and Tammy Johnson, vice-chair, represented the board.
In response to questions by Co-Chair Harris, Mr. Brown stated that this subject area was formerly part of the Board of Pharmacy, under which the yearly licensure fee was $200. These administrative regulations established a two (2) year licensure fee of $350; therefore, the yearly cost was less. The fee amount was based on an estimate, but because this was a new board, it was difficult to determine a specific estimate of needed revenue.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph and Section 10 to add a citation; (2) to amend Section 2 to allow licensure if an applicant is exempted from accreditation by a national accreditation organization; (3) to amend Section 2 to remove the per se suspension provision in accordance with KRS 13B.125; (4) to amend Section 4 to include the reciprocal license fee that is listed in the application form; (5) to amend Section 5 to establish refund procedures for denied or incomplete applications; (6) to amend Sections 5 and 8 to clarify annual training requirements; (7) to amend Section 10 to require the board, rather than the Office of Occupations and Professions, to grant or deny licenses and to discipline licensees, in accordance with statute; (8) to amend Section 11 to make con-forming changes to the licensure form and to require the applicant's email address; and (9) to amend Sections 4, 8, 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.
201 KAR 47:020 & E. Inspections, discipline, reinstatement, and administrative appeals.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph and Section 1 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 1 to: (a) clarify that the inspection and investigation procedures apply to applicants and licensees; (b) delete the inspection fee as initial licensure and other inspection fees are already established by statute; and (c) delete credit history procedures because they are not clearly authorized by statute. 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 2:049. Small game and furbearer hunting and trapping on public areas. Karen Waldrop, deputy commissioner, and David Wicker, general counsel, represented the department.
In response to a question by Co-Chair Harris, Ms. Waldrop stated that the initially proposed administrative regulations exempted trappers from hunter orange requirements during firearms seasons; however, the agency amendments replaced hunter orange requirements during firearms seasons.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to clarify the definition for “youth;” (2) to amend Sections 3, 4, and 5 to comply with the drafting requirements of KRS Chapter 13A; and (3) to amend Section 3(2) to delete the hunter orange exemption for furbearer trappers, as cross referenced in 301 KAR 2:251. Without objection, and with agreement of the agency, the amendments were approved.
301 KAR 2:251. Hunting and trapping seasons and limits for furbearers.
A motion was made and seconded to approve the following amendments: (1) to amend Section 1 to clarify the definition for “youth;” (2) to amend Sections 1, 7, 8, 9, and 11 through 16 to comply with the drafting and formatting requirements of KRS Chapter 13A; (3) to amend Section 8’s water set requirements to establish that a body-gripping trap greater than twenty (20) inches in width shall be set so that the trap is completely submerged underwater; (4) to amend Section 9 to establish that, except for box or cage live traps or properties five (5) acres or less, a person trapping on private land shall not place traps used as dry land sets any closer than ten (10) feet apart unless possessing written permission from the landowner or designee, except that there shall not be more than three (3) traps set within any ten (10) foot spacing; and (5) deletes Section 10, which exempted furbearer trappers from hunter orange requirements. 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 6:150. Eastern Kentucky Correctional Complex. Amy Barker, assistant general counsel, represented the department.
A motion was made and seconded to approve the following amendments: (1) to amend EKCC 01-07-03, 02-01-02, 06-03-01, 11-05-01, 11-07-01, 13-01-01, 13-01-02, 13-02-05, 13-08-01, and 13-08-03: (a) for clarity; (b) to correct citations; and (c) to make technical corrections; and (2) to amend Section 1 to update the edition dates of the revised policies. Without objection, and with agreement of the agency, the amendments were approved.
EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Board of Education: Department of Education: School Administration and Finance
702 KAR 3:171. Repeal of 702 KAR 3:170. Robin Kinney, associate commissioner; Lisa Moore, staff assistant; and Amy Peabody, staff attorney, represented the board.
Instructional Programs
705 KAR 4:231. General program standards for secondary career and technical education programs.
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 Section 14 to add criteria for program assessments; and (3) to amend Sections 2 through 7, 10, 14, and 16 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Instructional Programs
780 KAR 4:012. Repeal of 780 KAR 4:010.
PUBLIC PROTECTION CABINET: Department of Alcoholic Beverage Control: Advertising Distilled Spirits and Wine
804 KAR 1:071. Repeal of 804 KAR 1:070, 804 KAR 1:090, and 804 KAR 1:120. Steve Humphress, general counsel, and Melissa McQueen, staff attorney, represented the department.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Behavioral Health, Developmental and Intellectual Disabilities: Division of Intellectual and Developmental Disabilities: Mental Health
908 KAR 2:040. Hospital district assignments. Justin Dearinger, regulation coordinator, and Tanya Dickenson, director, represented the division.
In response to questions by Senator Raque-Adams, Ms. Dickenson stated that Kentucky Correctional Psychiatric Center was the only forensic psychological institution, meaning that the facility was criminal-justice oriented. Policies were being repealed because the contents had been absorbed into other administrative regulations. Mr. Dearinger stated that out-of-state referrals were rare and may include an out-of-state resident being referred to a Kentucky facility or a Kentucky resident being referred to an out-of-state facility.
In response to a question by Senator Kerr, Mr. Dearinger stated that this administrative regulation broadened flexibility regarding which facility a patient would be assigned based on family proximity. This was a step toward the proposed Tim’s Law and would be another policy tool to assist families dealing with mental illness.
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 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 3 to delete provisions that are already established by statute; (4) to amend Section 4 to clarify requirements for out of district hospital admittance; and (5) to amend Section 5 to clarify requirements for admittance to a psychiatric unit in a local general hospital. Without objection, and with agreement of the agency, the amendments were approved.
Division of Program Integrity: Institutional Care
908 KAR 3:081. Repeal of 908 KAR 3:080, 908 KAR 3:090, 908 KAR 3:100, 908 KAR 3:110, 908 KAR 3:120, 908 KAR 3:130, 908 KAR 3:140, 908 KAR 3:150, 908 KAR 3:160, and 908 KAR 3:180.
Department for Income Support: Child Support Enforcement: Family Support
921 KAR 1:001. Definitions for 921 KAR Chapter 1. Elizabeth Caywood, executive advisor, and Todd Trapp, branch manager, represented the department.
Department for Community Based Services: Division of Family Support: Supplemental Nutrition Assistance Program
921 KAR 3:030. Application process.
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 and Sections 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.
921 KAR 3:050. Claims and additional administrative provisions.
Division of Protection and Permanency: Child Welfare
922 KAR 1:360 & E. Private child care placement, levels of care, and payment.
Other Business: Co-Chair Harris thanked Representative Linda Belcher who was leaving the General Assembly. A resolution had been prepared.
Co-Chair Harris stated that Representative Belcher would be missed by the subcommittee. She performed on the subcommittee as a non-partisan legislator, and her work was deeply appreciated.
Senator Kerr stated that Representative Belcher would be missed, especially as a colleague and friend to other female legislators because female legislators were in the minority in the General Assembly, regardless of party affiliation. Representative Belcher maintained grace under pressure and was very knowledgeable and well prepared for legislative issues.
Senator Raque–Adams stated that she agreed with Senator Kerr’s remarks. It was nice to be on a subcommittee in which half of the members were female. Representative Belcher’s work was appreciated and she would be missed.
A motion was made and seconded to adopt the resolution prepared for Representative Linda Belcher.
Representative Belcher stated that working for the General Assembly was a wonderful experience. She was very busy in her community and, after two (2) weeks to rest, she would be moving forward with her endeavors. She looked forward to continue working with legislative friends and policymakers in the future.
The following administrative regulations were deferred to the January 6, 2017, meeting of the Subcommittee:
GENERAL GOVERNMENT CABINET: Board of Licensed Professional Counselors: Board
201 KAR 36:045. Distance counseling.
201 KAR 36:055. Administrative subpoena.
Board of Licensure for Massage Therapy: Board
201 KAR 42:020. Fees.
201 KAR 42:040. Renewal.
CABINET FOR HEALTH AND FAMILY SERVICES: Office of Inspector General: Division of Health Care: Health Services and Facilities
902 KAR 20:013. Repeal of 902 KAR 20:014.
Office of Inspector General
906 KAR 1:151. Repeal of 906 KAR 1:150.
Department for Income Support: Child Support Enforcement: Family Support
921 KAR 1:001. Definitions for 921 KAR Chapter 1.
The Subcommittee adjourned at 2 p.m. until January 6, 2017, at 1 p.m.