Call to Order and Roll Call
The April meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, April 11, 2017, at 1:00 PM, in Room 149 of the Capitol Annex. Representative Ken Upchurch, 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; Representatives Mary Lou Marzian, Jason Petrie, and Tommy Turner.
Guests: Melissa Bell, Travis Powell, Council on Postsecondary Education; Lesley Bilby, Personnel Cabinet; Leann Diakov, Board of Medical Licensure; Louis Kelly, Board of Physical Therapy; Nicole Sergent Biddle, Paul Hatcher, Board of Prosthetics, Orthotics and Pedorthics; Matthew James, Board of Licensed Diabetes Educators; Steve Beam, Gabe Jenkins, Karen Waldrop, David Wicker, Department of Fish and Wildlife; Amy Barker, Department of Corrections; Katie Embree-Cleveland, Amy Peabody, Matt Ross, Department of Education; Corey Henderson, School Facilities Construction Commission; Mike Pettit, Kristi Redmon, Michael Swansburg, Labor Cabinet; Steve Humphress, Department of Alcoholic Beverage Control; Patrick O’Conner II, Department of Insurance; Stephanie Brammer-Barnes, Veronica Cecil, Robert Silverthorn Jr., Office of Inspector General; Stephanie Craycraft, Tanya Dickinson, Department for Behavioral Health, Developmental, and Intellectual Disabilities; Mary Sparrow, Department for Income Support; Elizabeth Caywood, Steven Fisher, Department for Community Based Services; Sarah Nicholson, Kentucky Hospital Association.
LRC Staff: Sarah Amburgey, Emily Caudill, Betsy Cupp, Ange Darnell, Emily Harkenrider, Karen Howard, and Carrie Klaber.
COUNCIL ON POSTSECONDARY EDUCATION: Public Educational Institutions
13 KAR 2:110. Advanced practice doctoral degree programs at comprehensive universities. Melissa Bell, academic affairs vice president, and Travis Powell, general counsel and council associate vice president, represented the council.
PERSONNEL CABINET: Personnel Cabinet, Classified
101 KAR 2:046. Applying for employment, qualifications and examinations. Mary Bailey, commissioner, Department of Human Resources Administration, and Lesley Bilby, executive director, Office of Legal Services, represented the cabinet.
101 KAR 2:056. Registers.
In response to a question by Co-Chair Harris, Ms. Bilby stated that removing the application from incorporation by reference simplified, expedited, and modernized the process for applying for employment.
101 KAR 2:066. Certification and selection of eligible applicants for appointment.
GENERAL GOVERNMENT CABINET: Board of Medical Licensure
201 KAR 9:270. Professional standards for prescribing or dispensing Buprenorphine-Mono-Product or Buprenorphine-Combined-with-Naloxone. Leanne Diakov, general counsel, represented the board.
In response to questions by Co-Chair Harris, Ms. Diakov stated that Buprenorphine-Combined-with-Naloxone (Suboxone) was used, along with behavioral modification, to treat opioid dependence. The amendments to this administrative regulation were primarily related to Buprenorphine-Mono-Product, which was used for chronic or acute pain management. While one (1) of these drugs included Naloxone in the formulary, these drugs were not used to reverse opioid overdoses.
Board of Physical Therapy
201 KAR 22:053. Code of ethical standards and standards of practice for physical therapists and physical therapist assistants. Louis Kelly, general counsel, represented the board.
In response to questions by Representative Petrie, Mr. Kelly stated that KRS 367.4082 prohibited medical providers from soliciting car accident victims. The prohibition was added to this administrative regulation for consistency with the authorizing statutes, not because the board had encountered this as a disciplinary issue. This administrative regulation was also revised to make discharge summaries optional, rather than required, and to clarify documentation provisions.
A motion was made and seconded to approve the following amendments: (1) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1 through 5 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (2) to add a Section 6 to reorganize requirements. Without objection, and with agreement of the agency, the amendments were approved.
Board of Prosthetics, Orthotics and Pedorthics
201 KAR 44:040. Professional conduct and code of ethics. Nicole Biddle, assistant attorney general, and Paul Hatcher, chair, represented the board.
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 Sections 1, 3, 5, and 6 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Board of Licensed Diabetes Educators
201 KAR 45:100. Fees for licensure of diabetes educators. Matt James, assistant attorney general, represented the board.
In response to questions by Co-Chair Harris, Mr. James stated that the board was not seeking a sponsor to amend the board’s authorizing statute to allow a reactivation fee. The board only had one (1) or two (2) licensees in voluntary inactive status. To return to active status, an inactive licensee would need to demonstrate compliance with continuing education requirements and pay the licensure application fee, which was the same amount as the proposed reactivation fee. Compliance with continuing education requirements included meeting the cumulative minimum number of continuing education hours for each year the license was inactive. The continuing education hours may all be achieved during the year preceding a return to active status and did not necessarily need to be achieved for each year’s deadline during the inactive period.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2 to: (a) insert conforming language; (b) comply with the drafting requirements of KRS Chapter 13A; and (c) delete the reactivation fee; and (2) to amend the TITLE for clarity. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 45:110. Supervision and work experience.
A motion was made and seconded to approve the following amendments: (1) to amend Section 2 to insert conforming language; and (2) to amend Section 4 to update a form incorporated by reference. Without objection, and with agreement of the agency, the amendments were approved.
201 KAR 45:120. Renewal, reinstatement, and inactive status.
A motion was made and seconded to approve the following amendments: (1) to amend Sections 1 and 4 to insert conforming language; (2) to amend Section 3 to delete the reference to the reactivation fee; and (3) 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.
201 KAR 45:130. Continuing education.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph and Sections 3 through 5 to insert conforming language; 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.
TOURISM, ARTS AND HERITAGE CABINET: Department of Fish and Wildlife Resources: Game
301 KAR 2:132. Elk hunting seasons, permits, zones, and requirements. Steve Beam, wildlife division director; Gabe Jenkins, deer and elk coordinator; and David Wicker, general counsel, represented the department.
JUSTICE AND PUBLIC SAFETY CABINET: Department of Corrections: Office of the Secretary
501 KAR 6:020. Corrections policies and procedures. Amy Barker, assistant general counsel, represented the department.
In response to a question by Co-Chair Harris, Ms. Barker stated that 501 KAR 6:030 and 6:060 were amended as part of the annual review and update of policies and procedures.
A motion was made and seconded to approve the following amendments: to amend Section 1 and the material incorporated by reference to: (1) comply with the drafting requirements of KRS Chapter 13A; (2) specify that inmates shall be present for administrative review of protective custody status for consistency with other types of administrative review; (3) correct citations; (4) specify search procedures and documentation requirements for transgender and intersex inmates; and (5) revise inmate account procedures to: (a) prohibit money of any dollar amount from being sent outside the institution; (b) allow an inmate to request an exception to the $1,000 account limit in exceptional circumstances; and (c) freeze any amount in an inmate's account that exceeds the $1,000 balance limit. Without objection, and with agreement of the agency, the amendments were approved.
501 KAR 6:030. Kentucky State Reformatory.
A motion was made and seconded to approve the following amendments: to amend Section 1 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.
501 KAR 6:060. Northpoint Training Center.
A motion was made and seconded to approve the following amendments: to amend Section 1 and the material incorporated by reference to: (1) clarify documentation requirements for an inmate requesting approval for marriage; (2) correct citations; and (3) comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Board of Education: Department of Education: Food Service Programs
702 KAR 6:090. Minimum nutritional standards for foods and beverages available on public school campuses during the school day; required nutrition and physical activity reports. Katie Cleveland, administrative section supervisor; Amy Peabody, staff attorney; and Matt Ross, executive advisor, represented the department.
In response to questions by Co-Chair Harris, Ms. Cleveland stated that this administrative regulation addressed snack (a la carte) items, which were available in addition to the reimbursable meals (school lunch program). Statistics were not available to determine how many Kentucky students purchased extra foods, such as a la carte or vending machine options. This administrative regulation eased requirements to the minimum federal standards.
FINANCE AND ADMINISTRATION CABINET: School Facilities Construction Commission: Procedures
750 KAR 1:030. Emergency and targeted investment fund. Corey Henderson, administrative assistant, represented the commission.
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; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 3 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
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 2:320. Toxic and hazardous substances. Mike Pettit, safety standards specialist; Kristi Redmon, occupational safety and health standards specialist; and Michael Swansburg, general counsel, represented the division.
A motion was made and seconded to approve the following amendments: to amend Section 1 to: (1) delete two (2) definitions that were not referenced in this administrative regulation; and (2) comply with the formatting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
803 KAR 2:403. Occupational health and environmental controls.
803 KAR 2:425. Toxic and hazardous substances.
A motion was made and seconded to approve the following amendment: to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendment was approved.
803 KAR 2:500. Maritime employment.
PUBLIC PROTECTION CABINET: Department of Alcoholic Beverage Control: Fair Trade; Pricing and Sales
804 KAR 3:100. License may be suspended or revoked for accepting Supplemental Needs Assistance Program (“SNAP”) benefits for alcohol purchases. Steve Humphress, general counsel, represented the department.
In response to a question by Representative Petrie, Mr. Humphress stated that this administrative regulation was being revised and modernized for consistency with federal standards.
A motion was made and seconded to approve the following amendments: (1) to amend the TITLE and Section 1 to correct the name of the referenced federal program; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 1 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Department of Insurance: Agent Licensing Division: Group and Blanket Health Insurance
806 KAR 18:020. Preferred and exclusive provider arrangements. Patrick O’Connor II, executive advisor, represented the division.
In response to questions by Co-Chair Harris, Mr. O’Connor stated that Section 3 of this administrative regulation listed service organizations and exempted those service organizations from the requirements established in Section 2 of this administrative regulation. The regulated community understood these provisions.
CABINET FOR HEALTH AND FAMILY SERVICES: Office of Inspector General: Division of Health Care: Health Services and Facilities
902 KAR 20:081. Operations and services; home health agencies. Stephanie Brammer – Barnes, regulation coordinator, and Robert Silverthorn, Jr., inspector general, represented the division.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO; STATUTORY AUTHORITY; and NECESSITY, FUNCTION, AND CONFORMITY paragraphs to correct citations; (2) to amend Sections 1, 3, and 4 to comply with the drafting requirements of KRS Chapter 13A; and (3) to amend Section 4 to clarify what types of personnel may serve as supervisors for therapy services and home health aides. Without objection, and with agreement of the agency, the amendments were approved.
Department for Medicaid Services: Division of Community Alternatives: Behavioral Health
907 KAR 15:005 & E. Definitions for 907 KAR Chapter 15. Veronica Cecil, deputy commissioner, represented the department. Sarah Nicholson, vice president, Kentucky Hospital Association, appeared in opposition to 907 KAR 17:035 & E.
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: (a) make technical corrections; (b) delete two (2) definitions; (c) add a definition; and (d) clarify two (2) definitions. Without objection, and with agreement of the agency, the amendments were approved.
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.
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 TITLE and Sections 1 and 3 through 7 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (3) to amend Section 3 to: (a) add physician assistants to the lists of covered service providers; (b) clarify provider groups; and (c) clarify intensive outpatient program services requirements. Without objection, and with agreement of the agency, the amendments were approved.
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.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correct citations; (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Sections 1, 2, and 5 to comply with the drafting and formatting requirements of KRS Chapter 13A; and (3) to amend Section 2: (a) to reorganize requirements to avoid unnecessary redundancy; and (b) for consistency with the State Plan Amendment. Without objection, and with agreement of the agency, the amendments were approved.
Commissioner’s Office: Managed Care
907 KAR 17:015 & E. Managed care organization requirements and policies relating to providers.
In response to a question by Co-Chair Harris, Ms. Cecil stated that the department expected a cost savings because streamlining of the process allowed providers to have a third-party review to appeal denials.
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, 4, 7, 8, 11, and 12 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 17:035 & E. External independent third-party review.
In response to questions by Co-Chair Harris, Ms. Cecil stated that the Kentucky Hospital Association requested to bundle cases for multiple individuals within a case; however, doing so would create numerous administrative logistical problems. Multiple claims were allowable, but only for one (1) individual within a case. The department agreed to reconsider bundling for multiple individuals in the future if processing time became a concern. A future change to bundling would require an administrative regulation, rather than a statutory, amendment. Ms. Nicholson stated that the Kentucky Hospital Association appreciated the department committing to working with them on this matter.
In response to questions by Representative Petrie, Ms. Cecil stated that the department believed the Kentucky Hospital Association’s concerns would be adequately addressed without multiple bundling, but would consider that form of bundling in the future if necessary. Bundling multiple claims for multiple individuals would create administrative logistical problems, including problems with HIPAA compliance.
In response to a question by Co-Chair Upchurch, Ms. Cecil stated that the department should be able to determine if processing time was a concern within approximately thirty (30) to sixty (60) days. It would take approximately six (6) month to a year to make a change to the bundling provisions.
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 and Sections 2 and 3 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
907 KAR 17:040 & E. Appeal and administrative hearing post external independent third-party review.
A motion was made and seconded to approve the following amendments: (1) to amend the STATUTORY AUTHORITY paragraph and Section 2 to add citations; and (2) to amend the NECESSITY, FUNCTION, AND CONFORMITY paragraph and Section 1 to comply with the drafting requirements of KRS Chapter 13A. Without objection, and with agreement of the agency, the amendments were approved.
Department for Behavioral Health, Developmental and Intellectual Disabilities: Division of Program Integrity: Institutional Care
908 KAR 3:051 Repeal of 908 KAR 3:050. Stephanie Craycraft, executive advisor, and Tanya Dickinson, division director, represented the division.
908 KAR 3:060. “Means test” for determining patient liability and per diem rates.
Department for Income Support: Child Support Enforcement: Child Support
921 KAR 1:430. Child support administrative hearings. Mary Sparrow, internal policy analyst, represented the department.
A motion was made and seconded to approve the following amendments: (1) to amend the RELATES TO paragraph to correct a citation; and (2) 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.
Department for Community Based Services: Division of Protection and Permanency: Child Welfare
922 KAR 1:400. Supportive services. Elizabeth Caywood, executive advisor, and Steven Fisher, branch manager, Adult Protective Services, represented the division.
A motion was made and seconded to approve the following amendments: to amend Sections 1 and 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.
Block Grants
922 KAR 3:011. Repeal of 922 KAR 3:010 and 922 KAR 3:020.
Adult Services
922 KAR 5:120. Caregiver misconduct registry and appeals.
In response to a question by Co-Chair Harris, Ms. Caywood stated that this administrative regulation applied to employees, volunteers, contractors, and anyone related to caregiving.
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 through 5 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 Upchurch introduced Sarah Amburgey as the Subcommittee’s newly appointed committee staff administrator. Co-Chair Upchurch also welcomed to the Subcommittee meeting guest legislator, Representative Kevin Bratcher, House Majority Whip.
The following administrative regulations were deferred or removed from the April 11, 2017, Subcommittee agenda:
EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Education Professional Standards Board: Assessment
16 KAR 6:020. Assessment requirements for occupation-based career and technical education teachers. (Deferred from April)
GENERAL GOVERNMENT CABINET: Office of Occupations and Professions: Board of Interpreters for the Deaf and Hard of Hearing
201 KAR 39:001. Definitions for 201 KAR Chapter 39. (Comments Received)
201 KAR 39:030. Application; qualifications for licensure; and certification levels. (Comments Received)
201 KAR 39:070. Application and qualifications for temporary licensure. (Comments Received)
Board of Medical Imaging and Radiation Therapy
201 KAR 46:040. Medical imaging technologist, advanced imaging professional, radiographer, nuclear medicine technologist, and radiation therapist licenses. (Comments Received)
201 KAR 46:060. Continuing education requirements. (Deferred from April)
201 KAR 46:070. Violations and enforcement. (Comments Received)
201 KAR 46:090. Complaint process and administrative hearings. (Comments Received)
TOURISM, ARTS AND HERITAGE CABINET: Department of Fish and Wildlife Resources: Game
301 KAR 2:178. Deer hunting on Wildlife Management Areas, state parks, other public lands and federally controlled areas. (Deferred from April)
TRANSPORTATION CABINET: Department of Vehicle Regulation: Division of Driver Licensing: Administration
601 KAR 2:030 & E. Ignition interlock. (“E” expires 4/25/2017) (Not Amended After Comments) (Deferred from February)
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. (Not Amended After Comments) (Deferred from February)
CABINET FOR HEALTH AND FAMILY SERVICES: Department for Public Health: Division of Epidemiology and Health Planning: Communicable Diseases
902 KAR 2:060. Immunization schedules for attending child day care centers, certified family child care homes, other licensed facilities which care for children, preschool programs, and public and private primary and secondary schools. (Comments Received, SOC ext. due 3/15)
Department for Medicaid Services: Division of Policy and Operations: Medicaid Services
907 KAR 1:065. Payments for price-based nursing facility services. (Comments Received, SOC ext. due 3/15)
The Subcommittee adjourned at 2 p.m. until May 9, 2017, at 1 p.m.