Call to Order and Roll Call
The January meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, January 17, 2017, 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, Perry B. Clark, and Alice Forgy Kerr; Representatives Mary Lou Marzian, Tommy Turner, and Ken Upchurch.
Guests: Kathryn Gabhart, Ethics Commission; Becky Gilpatrick, Higher Education Assistance Authority; Jimmy Adams, Donna Brockman, Lisa Lang, Cassie Trueblood, Education Professional Standards Board; Margaret McCoy, Secretary of State; Maryellen Allen, State Board of Elections; Lesley Bilby, Brian Crall, Rosemary Holbrook, Personnel Cabinet; Gary Morris, Department of Revenue; Nathan Goldman, Board of Nursing; Tyler Madison, Clint Quarles, Department of Agriculture; Sean Alteri, Aaron Keatley, Energy and Environment Cabinet; Stephen Humphress, Melissa McQueen, Department of Alcoholic Beverage Control; Melea Rivera, Chandra Venettozzi, John Watkins, Office of Health Benefit Exchange; Bob Silverthorn, Office of Inspector General; Veronica Cecil, Sharley Hughes; Department of Medicaid; Elizabeth Caywood, Department for Community Based Services; Caroline Ruschell, Children’s Advocacy Centers; Mary Sparrow, Department for Income Support; Roger McCann, Community Action KY; Larry Suess.
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, January 17, 2017, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
FINANCE AND ADMINISTRATION CABINET: Executive Branch Ethics Commission: Commission
9 KAR 1:010. Statement of financial disclosure. Katie Gabhart, executive director, represented the commission.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph to add a citation; 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.
KENTUCKY HIGHER EDUCATION ASSISTANCE AUTHORITY: Division of Student and Administrative Services: Authority
11 KAR 4:080. Student aid applications. Becky Gilpatrick, director of student aid, represented the authority.
EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Education Professional Standards Board: General Administration
16 KAR 1:030. Procedures for educator certificate surrender, revocation, suspension, reinstatement, and reissuance, and for application denial. Jimmy Adams, executive director; Donna Brockman, director of professional learning and assessment; Lisa Lang, general counsel; and Cassie Trueblood, staff attorney, represented the board.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correct citations; (2) to amend Section 2 to clarify the procedure for handling a complaint or report if the educator fails to file a rebuttal and has not requested to extend the thirty (30) day deadline; and (3) to amend Sections 1, 2, 3, 6, and 7 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Assessment
16 KAR 6:010. Examination prerequisites for teacher certification.
Internship
16 KAR 7:010. Kentucky Teacher Internship Program.
In response to questions by Co-Chair Harris, Ms. Brockman stated that the teacher intern assessment process and the provisions for each of the three (3) cycles of the assessment process were established throughout this administrative regulation. The first two (2) assessment cycles were formative and primarily focused on mentoring, with the beginning teacher committee providing feedback and suggestions. The teacher intern must be rated at least as “developing” in the third assessment cycle for successful completion of the program. The teacher intern will be apprised of when the assessments will take place and what standards will be used to make the determinations. The beginning teacher committee, which consisted of the institution’s principal, a teacher educator, and the mentoring teacher, was well trained and provided with guidance, including a handbook with examples of possible forms of evidence to demonstrate teacher development. Mr. Adams stated that funding constraints and statutory authority limited the program to one (1) year; however, mentors were not prohibited from continuing a professional development relationship with the teacher intern if the parties agreed. Ms. Lang stated that the handbook was no longer incorporated by reference in this administrative regulation because it was not a compliance document, but only provided examples and suggestions. A teacher intern who failed to successfully complete the program remained in the program for another year.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO 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; (3) to amend Section 4 to clarify that: (a) a teacher intern shall be prohibited from discontinuing an internship without submitting a written resignation detailing the facts surrounding the resignation and receiving approval from the superintendent or designated nonpublic school head and the EPSB; and (b) if the teacher intern discontinues the internship without the approval of the EPSB, the intern shall be recorded as unsuccessfully completing the internship for that school year; (4) to amend Section 8 to require that the final order of the EPSB state if the teacher internship was successful, not successful, or nullified; and (5) to amend Sections 1, 3, 4, 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.
SECRETARY OF STATE: Occupational License Fees
30 KAR 7:020. Standard form occupational license fee returns for dual tax districts. Margaret McKay, director of business, represented the Secretary of State.
In response to a question by Co-Chair Harris, Ms. McKay stated that a dual tax district involved one (1) office being responsible for collecting taxes for two (2) different districts. For example, there was one (1) office that collected taxes for Boyle County and for the City of Danville.
STATE BOARD OF ELECTIONS: Forms and Procedures
31 KAR 4:170. Exceptions to prohibition on electioneering. Maryellen Allen, executive director, represented the board.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph 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 2 to clarify that the administrative regulation applies in the voting room. Without objection, and with agreement of the agency, the amendments were approved.
PERSONNEL BOARD: Board
101 KAR 1:325. Probationary periods. Brian Crall, chair, represented the board. Allen Sisk, executive director of human resources, Cabinet for Health and Family Services, appeared in support of this administrative regulation.
In response to questions by Co-Chair Harris, Mr. Sisk stated that the probationary period for a Social Service Worker I was being raised from six (6) months to nine (9) months because the initial training for a new social service worker took approximately six (6) months. Until training was complete, the worker’s case load was minimal; therefore, a nine (9) moth probationary period was needed to assess the employee’s ability to adequately perform with a standard case load. A social service worker in the training period may have a case load of less than twelve (12) cases, while a standard Social Service Worker I case load was approximately twenty (20) to twenty-five (25) cases. A nine (9) month probationary period was sufficient to perform an assessment of the employee’s capability to perform his or her duties appropriately with a full case load.
PERSONNEL CABINET: Personnel Cabinet, Classified
101 KAR 2:034 & E. Classified compensation administrative regulations. Lesley Bilby, executive director, Office of Legal Services, and Rosemary Holbrook, staff attorney, represented the cabinet.
In response to questions by Co-Chair Harris, Ms. Bilby stated that a special entrance rate was a higher-than-standard introductory rate for a position that was difficult to fill due to turnover or recruitment problems. If an agency had adequate discretionary funds, after an employee began employment at a special entrance rate, the agency often raised the rate for existing employees with that same classification in order to avoid issues of pay inequality. If the employee who filled the position at a special interest rate successfully completed the probationary period, he or she would usually be awarded a five (5) percent salary increase. That could again lead to pay inequality, and this amendment was intended to address that concern by establishing pay adjustments on the same date for the employee with the special entrance rate and for the employees receiving a commensurate adjustment.
101 KAR 2:180 & E. Employee performance evaluation system.
Personnel Cabinet, Unclassified
101 KAR 3:045 & E. Compensation plan and pay incentives for unclassified service.
Personnel Cabinet, General
101 KAR 5:016. Repeal of 101 KAR 5:015.
FINANCE AND ADMINISTRATION CABINET: Department of Revenue: Forms
103 KAR 3:011. Repeal of 103 KAR 3:010, 103 KAR 3:020, 103 KAR 3:030, 103 KAR 3:040, and 103 KAR 3:050. Gary Morris, executive advisor, represented the department.
GENERAL GOVERNMENT CABINET: Board of Nursing: Board
201 KAR 20:215. Continuing competency requirements. Nathan Goldman, general counsel, represented the board.
201 KAR 20:220. Nursing continuing education provider approval.
A motion was made and seconded to approve the following amendments: to amend Sections 2, 4, and 5 and the material incorporated by reference to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Department of Agriculture: Marketing and Product Promotion
302 KAR 39:020. Kentucky Small Farm Wineries Support Fund. Clint Quarles, staff attorney, and Tyler Madison, program manager, represented the department.
In response to questions by Co-Chair Harris, Mr. Madison stated that there were seventy (70) licensed vineyards in Kentucky. More information on Kentucky vineyards was located at kentuckywine.com.
In response to questions by Senator Clark, Mr. Madison stated that this administrative regulation required reporting on grape yield by variety and number of gallons of wine produced for statistical purposes. Kentucky-licensed vineyards were not required to use only Kentucky-grown grapes. Senator Clark stated that, prior to prohibition, Kentucky was one of the best wine-producing states.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 3 and 4 to clarify application procedures; and (2) to amend Sections 1, 2, and 4 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: New Source Performance Standards
401 KAR 60:005. 40 C.F.R. Part 60 standards of performance for new stationary sources. Sean Alteri, executive director, and Aaron Keatley, commissioner, represented the division.
In response to questions by Co-Chair Harris, Mr. Keatley stated that these administrative regulations referenced the federal standards and were not more stringent or different than the federal counterparts. Mr. Alteri stated that the new standards were, for the most part, not more stringent than the previous requirements; however, some standards did apply to new source categories and different types of industries than previously.
A motion was made and seconded to approve the following amendments: to amend Section 2 to: (1) complete the federal title for the subject matter established in Section 2(2)(iiii); (2) delete two (2) paragraphs that should not have been included; and (3) comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
General Standards of Performance
401 KAR 63:002. 40 C.F.R. Part 63 national emission standards for hazardous air pollutants.
401 KAR 63:060. List of hazardous air pollutants, petitions process, lesser quantity designations, and source category list.
PUBLIC PROTECTION CABINET: Department of Alcoholic Beverage Control: Quotas
804 KAR 9:010. Quota retail license limits for counties. Steve Humphress, general counsel, and Melissa McQueen, staff attorney, represented the department.
In response to questions by Co-Chair Harris, Mr. Humphress stated that the City of Louisville had a special quota retail license limit of one (1) to 1,500 population. That ratio was used as the starting point in determining appropriate city quota retail license limits. In addition to using the ratio as a determination starting point, this administrative regulation would require more than one (1) license per city to avoid a monopoly situation.
CABINET FOR HEALTH AND FAMILY SERVICES: Office of the Kentucky Health Benefit and Information Exchange: Kentucky Health Benefit Exchange
900 KAR 10:200 & E. Kentucky State Based Exchange on the Federal Platform. Melea Rivera, assistant director; Chandra Venettozzi, healthcare data administrator; and John Watkins, deputy executive director, represented the exchange.
Office of Inspector General: Division of Audits and Investigations: Controlled Substances
902 KAR 55:015. Schedule I substances. Bob Silverthorn, Jr., inspector general, and Van Ingram, executive director, Kentucky Office of Drug Control Policy, represented the division.
In response to questions by Senator Clark, Mr. Ingram stated that it was not necessary to provide the specific chemical formula for cannabinoids and cathinones to be scheduled; however, synthetic opioids were not included and did require specific scheduling. U-47700 was a U.S. patented painkiller that was never brought to market. It was now being produced in China and made available via the Internet. A Bowling Green youth died recently from use of U-47700 purchased from the Internet. U-47700 was seven and a half (7 ½) to nine (9) times more potent than morphine.
A motion was made and seconded to approve the following amendments: to amend the RELATES TO paragraph and Section 7 to add citations. Without objection, and with agreement of the agency, the amendments were approved.
902 KAR 55:035. Schedule V substances.
In response to questions by Senator Clark, Mr. Ingram stated that the new drugs listed as Schedule V substances were legend drugs; therefore, they were not currently part of the KASPER system of scheduled drug tracking.
Department for Medicaid Services: Commissioner's Office: Payments and Services
907 KAR 3:031. Repeal of 907 KAR 3:030. Veronica Cecil, deputy commissioner, represented the department.
Department for Community Based Services: Division of Protection and Permanency: Violence Prevention Resources
920 KAR 2:040. Standards for children's advocacy centers. Mary Sparrow, internal policy analyst, represented the department.
A motion was made and seconded to approve the following amendments: to amend Sections 1, 4, and 6 to comply with the drafting and formatting requirements of KRS Chapter 13A and for clarity. Without objection, and with agreement of the agency, the amendments were approved.
Department for Income Support: Child Support Enforcement: Family Support
921 KAR 1:001. Definitions for 921 KAR Chapter 1. Elizabeth Caywood, executive advisor, and Caroline Ruschell, executive director, represented the department.
Department for Community Based Services: Division of Protection and Permanency: Child Welfare
922 KAR 1:140. Foster care and adoption permanency services. Elizabeth Caywood, executive advisor, represented the division. Roger McCann, executive director, Community Action Kentucky, appeared in support of this administrative regulation and 922 KAR 6:010.
Division of Family Support: Community Action Agencies
922 KAR 6:010. Standards for community action agencies.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add a citation; and (2) to amend Section 4 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Other Business: Co-Chair Harris introduced Representative Ken Upchurch who was appointed to the Subcommittee to fill the House Co-Chair vacancy. Representative Turner made a motion, seconded by Representative Marzian, that Representative Upchurch be nominated for House Co-Chair. Representative Upchurch accepted the nomination. Representative Turner made a motion, seconded by Representative Marzian, to end House Co-Chair nominations. Representative Upchurch was unanimously endorsed as House Co-Chair by all subcommittee members present.
Co-Chair Upchurch stated that he looked forward to serving on this Subcommittee alongside Co-Chair Harris.
The following administrative regulations were deferred to the February 13, 2017, meeting of the Subcommittee:
GENERAL GOVERNMENT CABINET: Board of Licensure for Occupational Therapy: Board
201 KAR 28:090. Renewals.
201 KAR 28:200. Continuing competence.
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.
BOARD OF EMERGENCY MEDICAL SERVICES: Board
202 KAR 7:810. Survivor benefits for death of emergency medical services personnel.
PUBLIC TRANSPORTATION INFRASTRUCTURE AUTHORITY: Authority
202 KAR 10:010. Unsolicited proposals.
202 KAR 10:020. Public-private partnerships.
EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Department of Workforce Investment: Office of Employment and Training: Unemployment Insurance
787 KAR 1:070. Reasonable time for protesting claim.
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.
Division of Health Care: Office of Inspector General
906 KAR 1:151. Repeal of 906 KAR 1:150.
The Subcommittee adjourned at 1:50 p.m. until February 13, 2017, at 1 p.m.