Call to Order and Roll Call
The March meeting of the Administrative Regulation Review Subcommittee was held on Monday, March 6, 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; Representative Ken Upchurch, Co-Chair; Senators Julie Raque Adams, Perry B. Clark, and Alice Forgy Kerr; Representative Jason Petrie.
Guests: Jimmy Adams, Lisa Lang, Education Professional Standards Board; Tom Crawford, David Gordon, Melissa Russell, Department of Revenue; Bill Adcock, Florence Huffman, Board of Social Work, Ryan Halloran, Board of Licensed Occupational Therapists; Brian Judy, Board of Alcohol and Drug Counselors; John Marcus Jones, Denise Logsdon, Board of Licensure for Massage Therapy; Steve Beam, Ron Brooks, Gabe Jenkins, David Wicker, Department of Fish and Wildlife Resources; Caroline Baesler, Katie Smith, Cabinet for Economic Development; Tony Hatton, Aaron Keatley, Bruce Scott, Energy and Environment Cabinet; Amy Barker, Department of Corrections; Steve Humphress, Carol Beth Martin, Trina Summers, Christy Trout, Department of Alcoholic Beverage Control; Patrick O’Connor, Department of Insurance; Laura Begin, Angela Billings, Sue Thomas-Cox, Department of Public Health; Robert Silverthorn, Office of Inspector General; Veronica Cecil, Donna Little, Department for Medicaid Services; Tom FitzGerald, Kelley Leach, and Sonia McElroy.
LRC Staff: Sarah Amburgey, Emily Caudill, Betsy Cupp, Ange Darnell, Emily Harkenrider, Karen Howard, and Carrie Klaber.
The Administrative Regulation Review Subcommittee met on Monday, March 6, 2017, and submits this report:
Administrative Regulations Reviewed by the Subcommittee:
EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Education Professional Standards Board: Certification Procedures
16 KAR 4:040. Certification fees. Jimmy Adams, executive director, represented the board.
In response to questions by Co-Chair Harris, Mr. Adams stated that a deferral situation in which a program was delayed through no fault of the teacher was exempt from the fifty (50) dollar fee. A statement of eligibility was valid for five (5) years. A certificate holder, with multiple certificates that have different renewal dates, may pay an additional fifteen (15) dollars to align the multiple certificates with one (1) common renewal date at the next expiration period.
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.
16 KAR 4:080. Out-of-state recency.
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.
16 KAR 4:090. Reissuance.
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 Section 1 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
FINANCE AND ADMINISTRATION CABINET: Department of Revenue: Ad Valorem Tax; Administration
103 KAR 5:121. Repeal of 103 KAR 5:120. Tom Crawford, director, Office of Property Valuation; David Gordon, executive director, Office of Property Valuation; and Melissa Russell, tax policy research consultant, Office of Tax Policy and Regulation, represented the department.
In response to a question by Co-Chair Harris, Mr. Crawford stated that these administrative regulations were being repealed because they were outdated and unnecessary.
Income Tax; General Administration
103 KAR 15:021. Repeal of 103 KAR 15:020, 103 KAR 15:080, and 103 KAR 15:100.
Income Tax; Corporations
103 KAR 16:031. Repeal of 103 KAR 16:030.
103 KAR 16:221. Repeal of 103 KAR 16:220 and 103 KAR 16:300.
Income Tax; Miscellaneous
103 KAR 19:031. Repeal of 103 KAR 19:030.
Corporation License Tax
103 KAR 20:011. Repeal of 103 KAR 20:010, 103 KAR 20:020, and 103 KAR 20:035.
GENERAL GOVERNMENT CABINET: Board of Social Work
201 KAR 23:075. Continuing education for renewal. Bill Adcock, board member; Florence Huffman, executive director; and Brian Judy, assistant attorney general, represented the board.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 2 through 6, 9, and 11 to comply with the drafting and formatting requirements of KRS Chapter 13A; (2) to amend Section 4 to clarify that the fee for a provider shall be: (a) fifty (50) dollars for each one (1) day program of eight (8) hours or less; and (b) $100 for each additional one (1) day program of eight (8) hours or less; (3) to amend Section 5 to clarify that the presenter requirements shall apply to a sponsor; and (4) to make technical corrections to material incorporated by reference. Without objection, and with agreement of the agency, the amendments were approved.
Board of Licensure for Occupational Therapy
201 KAR 28:090. Renewals. Ryan Halloran, assistant attorney general, represented the board.
A motion was made and seconded to approve the following amendments: to amend Section 4 to delete the requirement to complete the board jurisprudence examination upon a licensee's renewal. Without objection, and with agreement of the agency, the amendments were approved.
Board of Alcohol and Drug Counselors
201 KAR 35:016. Repeal of 201 KAR 35:015. Brian Judy, assistant attorney general, represented the board.
201 KAR 35:020. Fees.
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; and (2) to amend Sections 1 through 4 and 7 through 9 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 35:025. Examinations.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and the Reexamination Application form to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 35:030. Code of Ethics.
In response to a question by Co-Chair Harris, Mr. Judy stated that all peer support specialists were recovering addicts with at least two (2) years in recovery to be eligible for registration. Most had completed a treatment program.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and 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.
201 KAR 35:050. Curriculum of study.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to add citations; (2) to amend Sections 1 and 4 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (3) to amend the Peer Support Specialist Alcohol/Drug Training Verification Form to add sections for additional required training. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 35:070. Supervision experience.
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 Sections 1, 4, 8, 9, and 11 to clarify when required forms shall be filed; and (3) to amend Sections 1 through 3 and 8 through 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.
Board of Licensure for Massage Therapy
201 KAR 42:020. Fees. John Marcus Jones, assistant attorney general, and Denise Logsdon, MS, LMT, chair, represented the board.
In response to questions by Co-Chair Harris, Ms. Logsdon stated that a nonpracticing licensee may go into inactive status. An inactive license was renewed annually, rather than biannually. A licensee with an inactive license was expected to comply with continuing education requirements and was not required to get additional training to return to active status if in compliance with continuing education requirements. If a licensee was not in compliance with continuing education requirements, the board would consider the reason for noncompliance before the licensee returned to active status.
A motion was made and seconded to approve the following amendment: to amend Section 2 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendment was approved.
201 KAR 42:040. Renewal.
A motion was made and seconded to approve the following amendments: to amend Section 6 to comply with the drafting 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: Fish 301 KAR 1:152. Asian Carp and Scaled Rough Fish Harvest Program. Steve Beam, wildlife division director; Ron Brooks, fisheries director; and David Wicker, general counsel, represented the department.
Game
301 KAR 2:172. Deer hunting seasons, zones, and requirements.
A motion was made and seconded to approve the following amendments: to amend Section 10 to clarify the deadline. Without objection, and with agreement of the agency, the amendments were approved.
CABINET FOR ECONOMIC DEVELOPMENT: Economic Development Finance Authority
307 KAR 1:031. Repeal of 307 KAR 1:030, 307 KAR 1:040, 307 KAR 1:050, and 307 KAR 1:060. Caroline Baesler, executive director and general counsel, Office of Legal Services, and Katie Smith, executive director, Office of Financial Services, represented the authority.
In response to questions by Co-Chair Harris, Ms. Baesler stated that these administrative regulations were reviewed as part of the Governor’s red tape reduction initiative. One (1) administrative regulation applied to a program that no longer existed. The other three (3) administrative regulations applied to existing programs; however, the requirements for those programs had been incorporated into another administrative regulation. The program that no longer existed ceased taking applications in 2009, although there were still agreements in place for monitoring and compliance purposes.
ENERGY AND ENVIRONMENT CABINET: Department for Environmental Protection: Division of Water: Water Resources
401 KAR 4:070. Coal combustion residuals surface impoundments. Tony Hatton, deputy commissioner; Aaron Keatley, commissioner; and Bruce Scott deputy secretary, represented the department. Tom FitzGerald, director, Kentucky Resources Counsel; Kelley Leach, Ogden Ridge resident; and Sonia McElroy, Trimble County resident, appeared in opposition to these administrative regulations.
In response to questions by Co-Chair Harris, Mr. Scott stated that this administrative regulation package adopted the federal coal combustion residuals (CCR) rules for coal ash ponds and CCR landfills. The cabinet made changes to 401 KAR 46:101 and 46:120 in response to public comments. As a result of the new requirements, coal ash ponds throughout Kentucky would close pursuant to protective closure requirements. Going forward, CCRs would be disposed of in landfills, rather than held in coal ash ponds.
Mr. Leach asked the Subcommittee not to accept the proposed changes to the CCR requirements. If CCR disposal did not pose a problem, why were there existing administrative regulations to govern them? Louisville Gas and Electric company’s original CCR landfill permit required monitoring wells to ensure that groundwater was not contaminated. Most landowners adjacent to CCR landfills could not afford litigation or private monitoring. Recent contamination at Herrington Lake may not have been detected under the proposed permit-by-rule program.
Ms. McElroy stated that she lived in Trimble County and was opposed to the Louisville Gas and Electric company’s CCR landfill. Many notices of deficiency had been issued to the facility. Residents near the Cane Run plant had to live with blowing fly ash, which lowered property values and resulted in health problems. Kentucky was fifth in the United States for coal ash contamination. It was necessary to have an agency to actively regulate coal ash facilities, including to regulate public notification and education of affected communities. The requirements should stay as they are and not be amended by this proposed administrative regulation package because facilities could not be counted upon to properly regulate themselves.
Mr. FitzGerald stated that CCRs were known to cause environmental damage. There were seventeen (17) potentially toxic elements commonly present in CCRs. Leachates from CCR facilities typically exceeded drinking water standards, and communities near CCR landfills often used groundwater as a drinking water source. Leachate studies showed that, in some cases, heavy metal leachate from CCRs was higher than hazardous waste standards. There was no federal mandate for the cabinet to delete the existing permit process. The proposed, self-certifying standards required information to be made public on the Internet; however, the required information was minimal and of little use to regulators and communities. Agency oversight was necessary for activities such as groundwater monitoring. Monitoring wells recently constructed without cabinet oversight were shown to not comply with standards, and some were constructed in the wrong place to detect potential contamination. A cabinet inspection prior to commencing operation would no longer be required. The Subcommittee should find these administrative regulations deficient because they were inconsistent with KRS 224.10-100(19), which required the cabinet to regulate permits for waste disposal sites and facilities and to compel applications accompanied by plans and specifications.
Mr. Scott stated that the problems illustrated by those testifying against these administrative regulations demonstrated the need for these new requirements. The problems described occurred pursuant to the existing administrative regulations. The cabinet would continue to inspect and monitor CCR disposal, just as it had done previously. KRS 13A.030(2)(a) required the Subcommittee to find an administrative regulation deficient if it imposed stricter state requirements than those required by a federal mandate. There were existing permit-by-rule requirements in place without this administrative regulation package. If permit-by-rule was incompatible with KRS 224.10-100(19), then both the current requirements and the proposed package were incompatible.
Division of Waste Management: Special Waste
401 KAR 45:010. Definitions for 401 KAR Chapter 45.
At the February 10, 2017, meeting of the Administrative Regulation Review Subcommittee a motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to correct citations; and (2) to amend Section 1 to comply with the drafting and formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
401 KAR 45:060. Special waste permit-by-rule.
At the February 10, 2017, meeting of the Administrative Regulation Review Subcommittee 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; and (2) 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.
Coal Combustion Residuals (CCR)
401 KAR 46:101. Definitions for 401 KAR Chapter 46.
At the February 10, 2017, meeting of the Administrative Regulation Review Subcommittee a motion was made and seconded to approve the following amendments: to amend Section 1 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
401 KAR 46:110. Standards for the disposal of coal combustion residuals (CCR) in CCR units.
401 KAR 46:120. Coal combustion residuals (CCR) permit-by-rule.
At the February 10, 2017, meeting of the Administrative Regulation Review Subcommittee a motion was made and seconded to approve the following amendments: to amend Sections 1 through 4, 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.
JUSTICE AND PUBLIC SAFETY CABINET: Department of Corrections: Office of the Secretary
501 KAR 6:170. Green River Correctional Complex. Amy Barker, assistant general counsel, represented the department.
In response to a question by Co-Chair Harris, Ms. Barker stated that this administrative regulation was the annual update to the Green River Correctional Complex policies.
PUBLIC PROTECTION CABINET: Department of Alcoholic Beverage Control: Licensing
804 KAR 4:370. Entertainment destination center license. Steve Humphress, general counsel; Carol Beth Martin, malt beverage administrator; Trina Summers, distilled spirits administrator; and Christy Trout, commissioner, represented the department.
In response to a question by Co-Chair Harris, Ms. Trout stated that the entertainment destination center license was an existing licensing program.
A motion was made and seconded to approve the following amendments: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 1 to correct citations. Without objection, and with agreement of the agency, the amendments were approved.
Department of Insurance: Commissioner’s Office
806 KAR 2:011. Repeal of 806 KAR 2:010, 806 KAR 2:020, 806 KAR 2:030, 806 KAR 2:040, and 806 KAR 2:050. Patrick O’Connor II, executive advisor, represented the department.
A motion was made and seconded to approve the following amendment: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to add a cross reference. Without objection, and with agreement of the agency, the amendment was approved.
806 KAR 2:097. Filing of local government premium tax ordinances; notification to insurers.
Agent Licensing Division: Agents, Consultants, Solicitors, and Adjusters
806 KAR 9:360 & E. Pharmacy benefit manager license.
A motion was made and seconded to approve the following amendment: to amend Section 2 to clarify what the commissioner considers as "good cause" to avoid the denial of an application if missing or necessary information is not received within thirty (30) days from the date of notification by the commissioner. Without objection, and with agreement of the agency, the amendment was approved.
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Public Health: Division of Public Health Protection and Safety: Sanitation
902 KAR 10:085. Kentucky on-site sewage disposal systems. Laura Begin, regulation coordinator, and Angela Billings, environmental health program administrator, represented the division.
In response to a question by Co-Chair Harris, Ms. Begin stated that the changes to this administrative regulation were the result of 2016 legislation to provide greywater conservation credits. If certain environmentally conservative types of systems were installed, the size of the chambers may be reduced to benefit these systems.
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 the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 4, 6, 7, and 9 through 12 to comply with the drafting and formatting requirements of KRS Chapter 13A; (3) to amend Sections 1, 3, and 6 to include Web site addresses for the referenced handbook and manuals; and (4) to amend Section 6 to clarify that certain leaching chamber sizes shall be established on a case-by-case basis pursuant to technological advances. Without objection, and with agreement of the agency, the amendments were approved.
Office of Inspector General: Division of Health Care: Health Services and Facilities
902 KAR 20:091 & E. Facilities specifications, operation and services; community mental health center. General Robert Silverthorn, Jr., inspector general, represented the office.
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 Sections 1, 3, and 8 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
902 KAR 20:280. Prescribed pediatric extended care centers.
In response to a question by Co-Chair Harris, General Silverthorn stated that this administrative regulation used the term “primary care provider,” rather than “primary care physician,” for consistency with the authorizing statute.
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; and (2) to amend Sections 1, 10, and 12 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Division of Prevention and Quality Improvement: Programs for the Underserved
902 KAR 21:020. Kentucky Colon Cancer Screening Program. Laura Begin, regulation coordinator, and Sue Thomas – Cox, chronic disease branch manager, represented the division.
A motion was made and seconded to approve the following amendments: (1) to amend Section 5 to delete provisions that were governed by contract; and (2) to amend Sections 6 and 7 to comply with the formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Department for Medicaid Services: Division of Community Alternatives: Medicaid Services
907 KAR 1:045 & E. Reimbursement provisions and requirements regarding community mental health center services. Veronica Cecil, deputy commissioner, and Donna Little, regulatory compliance senior policy advisor, represented the department.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add citations; (2) to amend Section 1 to add three (3) definitions; and (3) to amend Sections 1, 4, and 8 through 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.
907 KAR 1:047 & E. Community mental health center primary care services.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add citations; and (2) to amend Sections 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.
Commissioner’s Office: Kentucky Children's Health Insurance Program
907 KAR 4:020. Kentucky Children's Health Insurance Program Medicaid Expansion Title XXI of the Social Security Act.
In response to a question by Co-Chair Harris, Ms. Cecil stated that the six (6) month waiting period established in this administrative regulation and 907 KAR 4:030 was being deleted because it was not a federal requirement and it left children without creditable coverage during the waiting period.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add citations; and (2) to amend Section 1 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 4:030. Kentucky Children's Health Insurance Program Phase III Title XXI of the Social Security Act.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to add citations; and (2) to amend Sections 1 through 3 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 April 11, 2017, meeting of the Subcommittee:
GENERAL GOVERNMENT CABINET: Board of Physical Therapy
201 KAR 22:053. Code of ethical standards and standards of practice for physical therapists and physical therapist assistants.
Board of Prosthetics, Orthotics and Pedorthics
201 KAR 44:040. Professional conduct and code of ethics.
TRANSPORTATION CABINET: Department of Vehicle Regulation: Division of Driver Licensing: Administration
601 KAR 2:030 & E. Ignition interlock.
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: Division of Community Alternatives: Behavioral Health
907 KAR 15:005 & E. Definitions for 907 KAR Chapter 15.
907 KAR 15:010 & E. Coverage provisions and requirements regarding behavioral health services provided by individual behavioral health providers, behavioral health provider groups, and behavioral health multi-specialty groups.
907 KAR 15:015 & E. Reimbursement provisions and requirements for behavioral health services provided by individual behavioral health providers, behavioral health provider groups, or behavioral health multi-specialty groups.
Commissioner’s Office: Managed Care
907 KAR 17:015 & E. Managed care organization requirements and policies relating to providers.
The Subcommittee adjourned at 2:10 p.m. until April 11, 2017, at 1 p.m.