Interim Joint Committee on Licensing and Occupations


Minutes of the<MeetNo1> 2nd Meeting

of the 2009 Interim


<MeetMDY1> July 10, 2009


The<MeetNo2> 2nd meeting of the Interim Joint Committee on Licensing and Occupations was held on<Day> Friday,<MeetMDY2> July 10, 2009, at<MeetTime> 10:00 AM, in<Room> New Castle, Kentucky at the Smith Berry Vineyard and Winery. Representative Dennis Keene, Chair, called the meeting to order, and the secretary called the roll.


Present were:


Members:<Members> Senator Gary Tapp, Co-Chair; Representative Dennis Keene, Co-Chair; Senators Perry B. Clark, Julie Denton, Denise Harper Angel, John Schickel, Dan "Malano" Seum, and Kathy W. Stein; Representatives Larry Clark, Tim Firkins, Joni L. Jenkins, Adam Koenig, David Osborne, Darryl T. Owens, Ruth Ann Palumbo, Sal Santoro, and Arnold Simpson.


Guests:  Representative Rick Rand, Chuck Smith, Smith Berry Vineyard and Winery, Lowell Land, Acres of Land Winery; Mac Stone Executive Director, Division of Value-Added Plant Production; Stacia Alford, Kentucky Department of Agriculture; Roger Leaser, Kentucky Wine and Grape Council; Anthony Ward, President, Kentucky Orthotics and Prosthetics Association (KOPA), Gary King, Vice President KOPA, J. Robert Pinkston, Certified Prosthetist/Orthotist.


LRC Staff:  Tom Hewlett, Bryce Amburgey, Michel Sanderson, Carrie Klaber, and Susan Cunningham.


The meeting was called to order.  Due to a lack of quorum the adoption of minutes was postponed until such time as a quorum was attained. 


Representative Rick Rand welcomed the committee members to his home district and to the winery.  He said that agriculture was important to Henry County and the wineries that are springing up around the state are going to become a signature industry for Kentucky.  Representative Rand said that as the tobacco industry changes, the agriculture development dollars are important to diversify the farm economy across the state.  He said that in order for a winery to exist they must go to the voters with a referendum for approval to have alcohol sales.  He said one issue that has not allowed the winery business to grow as quickly as it might is the prohibition on Sunday sales.  He said that in order to do that now there must be approval from the Fiscal Court, and in dry rural areas that is hard to accomplish.  Representative Rand said one possibility would be to make a change at the state level that would permit small farm wineries to sell their product on Sunday.  He added that the wineries are a unique type of business that are only allowed to sell the alcohol that they produce.  Representative Rand said that small farm winery owners believed that Sunday sales would increase their business by 35 percent.


Chuck Smith, owner of Smith Berry Winery thanked the committee members for coming to the winery for their meeting.  He said that he, his wife, and their three daughters established the winery approximately seven years ago, after a trip to California.  He said theirs was one of the first wineries to be licensed in Kentucky.  He said Kentucky had a history of growing grapes before tobacco became the dominant crop.  Mr. Smith said that this would be the last meeting in this room.  He said the rise in sales required more production tanks and space to store wine barrels, so this room with be converted to those purposes.  Mr. Smith said rural areas are necessary to feed people and that tourism is a big business for small farm wineries.  He said approximately 20,000 to 35,000 people tour the winery and that on Sunday's he turns away 15 to 20 cars because there are no Sunday alcohol sales.  He added that people in surrounding states are surprised and do not know that Kentucky does not sell alcohol on Sunday.  Mr. Smith said that as the President of the Kentucky Vineyard Society he is going to work toward Sunday sales.


Lowell Land, representing Acres of Land Winery in Richmond, Kentucky, said that state programs have been very good for the small farm wineries in helping to grow their business.  He said wineries are dealing with the same issues any small business has with the economy; however, he said Sunday sales would be very important for his business.  Mr. Land said that there are signatures on his guest register from all 50 states and 18 foreign countries since he had been in business.  Mr. Land said since the small farm wineries were collecting sales tax, adding Sunday sales would generate more revenue and part of that money would be collected from customers from out-of-state.  He said his customers are well educated, higher income patrons who want to have a glass of wine with a meal. 


Senator Seum asked if Sunday sales are a local option election issue.  Chuck Smith said that the local government, the judge and fiscal court, would have to approve the sales which was not a favorable idea.  He added that the community had voted on the winery being open.  Senator Denton said that in a dry county it is a difficult vote for the fiscal court members and it would be easier if the state would allow Sunday sales for their product (only).  She said that it would be no different than what the wineries are doing Monday through Saturday.  Mr. Land said that there are wet counties that adjoin his winery but because there are no Sunday sales he cannot be part of the Wine Trail for tours on Sunday.  Representative Owens asked if Mr. Smith had asked the local fiscal court to approve Sunday sales.  Mr. Smith replied that he had and the county judge had responded that he could not support the issue at this time. 


Next Mac Stone, Executive Director for the Office of Marketing, said he was representing Agriculture Commissioner Farmer, as well as working with the grape and wine industry in the state.  Mr. Stone said Stacia Alford, staff at the Department of Agriculture, does a great job of networking and building the program on behalf of the wineries.  Stacia also manages the fund created by the legislature in SB82 from the 2006 General Assembly.  Mr. Stone said the grape and wine council is governor appointed, and the diversity on the council has been beneficial to the growth of the wine industry.  Mr. Stone said that in 2003 there were four small farm wineries in Kentucky and by 2006 there were 31, obviously showing a strong interest in wine making.  He said farmers saw that $15,000 worth of grapes could turn into $50,000 worth of wine.  However, it was soon realized that capital was needed to continue to keep that influx of revenue.  He said foot traffic was very important to the growth of this industry.  Mr. Stone said small farm wineries are currently in a growth curve, building relationships with distributors, with customers, and with the local community.  Mr. Stone said that the wineries are interested in working together and with tourism to let visitors know where they are.  He said that now that the council is maturing the department is more familiar with working with them and the website they have developed is being upgraded to include the ability to Google a map so tourists can more easily locate the wineries. 


Mr. Stone said that the Department of Agriculture has developed a group to partner with the World Equestrian Games that are coming to Kentucky in 2010 to manage the Kentucky Proud Pavilion.  He said the Tourism, Arts, and Heritage Cabinet is putting together a Kentucky Experience tent that will host events in cooperation with the Kentucky Distillery Association, Kentucky Ale, and arts and crafts.  He said that Jon Carloftis will be building a garden in the tent. 


Mr. Stone said that last year during the Kentucky State Fair the wine council held its first wine competition, with approximately 50 wines entered.  He said that this was a way to promote the quality of Kentucky wine.  He said wines are graded by meeting either a gold standard, silver standard or bronze standard.  This is being achieved with the help of Tom Cottrell at the University of Kentucky who has an on-going tasting panel that assures the quality of all Kentucky wines before they reach the customer. 


Mr. Stone said that grower development was another important part of winery success.  He said that weather last year was dry, this year it has been wet, adding that this year there are good crops of grapes even though too much rain can also have a down side to the environmental condition in the vineyard.  Mr. Stone said that through the funding of Senate Bill 82, two programs have been started.  He said the wholesale reimbursement program has been put in place to help the small farm wineries form a relationship with distributors, making for a more fluid system to get small quantities of wine into retail markets around the state.  He said the transition to working with the larger distributors is ongoing.  Mr. Stone said that the marketing cost share program provides funds for each winery to be able to manage a website, pay for signage, and have marketing to help promote their product.  Mr. Stone said in order to use this fund more efficiently, an opt-in card has been developed.  With this card a larger winery, that has a larger marketing budget, may opt-in for money and those wineries that know that they are not going to spend their part of the cost share can opt-in at a smaller share. 


Mr. Stone said that University of Kentucky programs in Viticulture and Enology have been helpful by going to wineries to help evaluate quality.  He said because this industry is new to Kentucky, harvesting the grapes in the different climates of Kentucky makes them have different flavors.  He said that some grape varieties grow better than other due to change in climate.  He said that some of the classic varieties of wine are not winter hardy in Kentucky.  Mr. Stone said that work is being done to see what region best grows different varieties of grape. 


Mr. Stone said the department has sent out a survey to ascertain data from wineries and vineyard regarding production numbers, and the variety of grapes being grown, what their customers are asking for, and what kind of crop yield they are getting.  He said this information will be used to help train others around the state.  He said as the quality of the wine gets better the industry will grow, and marketing will help small farm wineries grow.  He said the wine council hopes discussions with growers and wineries will also help the industry's progress.


Representative Keene told committee members that an attendance roll call was now in order and asked the secretary to call the roll.  That being done and a quorum being present, Representative Keene asked members for a motion to adopt the minutes from the June 12, 2009 meeting.    With a motion by Representative Firkins and second by Senator Seum, the minutes were approved by voice vote.


Senator Stein asked if any of the wineries in Kentucky thought about marketing certified Kosher wine.  Roger Leasor, Liquor Barn owner, responded that he was not aware of any Kosher wine being produced in Kentucky.  Senator Harper-Angel said that it would be nice to have Kentucky wine displayed and to have a tasting at the Southern Legislative Conference meeting next year in Louisville.  Mac Stone said that, with the Kentucky Proud Program, not only local wine but local food is sampled.  Representative Palumbo asked what hybrid root stock was.  Mr. Land responded that hybrid root stock is a grafting process with a goal to grow a disease resistant plant.  Representative Keene asked why there were no wine tastings in liquor stores in Northern Kentucky of Kentucky wines.  Mr. Leasor said that he could not speak for other liquor stores; however, the Liquor Barn has Kentucky wine tastings approximately 20 weeks per year.  Mr. Stone added that it is expensive for wineries to travel to liquor stores.  Senator Schickel asked if the Sunday sale issue was a big obstacle due to the local vote.  Mac Stone said that he has spoken to several winery owners who have had to turn away people, on Sunday, who have driven out of their way.  He said these owners feel like they have lost a sale, but also a potential customer.  Senator Schickel asked if it was possible to change  the statute to have a local option vote on Sunday sales.  Representative Rand said when the question is put on the ballot for Sunday sales in a conservative district it will not pass.  Senator Stein suggested that there be a condition that if a community is not wet or moist it does not share in the benefits of the tax proceeds from the sale of alcohol.  Representative Owens said he was concerned that if the community concludes what it wants to do, the state should not force that community to do something anyway.  Lowell Land said that he had hundreds of signatures on a petition; however, he could not get his fiscal court to hear the issue because they felt it was controversial and they do not want to become involved.  Mr. Land continued that his point was that 51 percent was overruling 49 percents rights to have Sunday sales.


Next on the agenda was a presentation from the Kentucky Orthotic and Prosthetic Association (KOPA).  Tony Ward, President of KOPA, and a certified Prosthetist/Orthotist thanked the members for the opportunity to come before the committee to explain the benefits of licensure for orthotist, prosthetics, pedorthist to the citizens of Kentucky.  Rob Pinkston, certified Prosthetist/Orthotist, said that a certified prosthetist or orthotist is part of the allied health profession.  He said their job is to design, fabricate, fit, measure and service orthopedic braces or orthoses that have been prescribed by a licensed physician.  He said orthoses are typically formulated to help support or correct someone that has some type of a musculoskeletal deformity.  He said that in the past there has been the idea that braces are taken off a shelf and sold in a retail setting, which is not correct.  Mr. Pinkston said he sees patients who have had cerebral vascular accidents or stroke, children born with spina bifida, children with muscular dystrophy, all of whom have been referred by a physician.  He said people who exercise on weekends sprain shoulders, tear their ACL, and adults who are victims of motor vehicle accidents are also clients.  He said the job of a prosthetist is to help someone who has lost some type of external body part, typically due to some form of amputation or some type of congenital abnormality at birth.  Mr. Pinkston said they design limbs that fit into a socket that must be worn comfortably, so that when they walk they may function as normally as possible.  Mr. Pinkston said a pedorthist is a sub-category of orthotics that specializes specifically in disorders of the foot and ankle.  He said a pedorthist is someone who fits specialized shoes, and can modify the shoes as needed.  Mr. Pinkston cited a cover story in the Courier Journal about an Iraq war veteran who had lost his leg and spoke of how well he was doing because of the specialized care he was receiving. 


Representative Keene asked if there were approved stores for veterans so that they would not have to travel long distances for fittings and treatment.  Mr. Pinkston responded that a veteran could go where ever he chose to receive prosthetic services. 


Mr. Pinkston said that diabetes is the number one reason that he sees patients.  He said that in 1997 there were over 133,000 lower extremity amputations in the United States due to diabetes.  He said that to date in 2009, there are 23 million diabetics in the United States.   Mr. Pinkston said a large part of the practices service diabetic patients who have had health complications in the past.  He said he thought that orthotist and prosthetist should have training and full knowledge of preventative maintenance issues related to the special needs of diabetics. 


Gary King, Vice President of KOPA, told members that in April of 1992 he had an accident while mowing on his farm in Scott County, amputating his right leg above the knee and degloving his left leg.  He said after three months at the University of Kentucky hospital, he was transferred to Cardinal Hill Hospital to relearn daily activities.  He said fourteen months after his accident he was back to full-time work.  Mr. King said 10 years later, after consulting with his prosthetist he decided to return to school to become a prosthetist.  He graduated from Northwestern University in Chicago, receiving the orthotic and prosthetic certificates allowing him to pursue two one year residencies, and preparing him to sit for boards to become a Certified Prosthetist/Orthotist in 2007.  Mr. King said he was amazed to find out that only a handful of states licensed prosthetist and orthotist.  He said it was generally accepted that, because the field was below the radar and represented only a few tenths of one percent of Medicare/Medicaid expenditures, licensure was not necessary.  Mr. King said that states began to license the practice after large fraud cases in the durable medical equipment portion of Medicare and Medicaid surfaced.  He said that the prosthetic and orthotic services which the speakers represent have been largely fraud-free thus far, but because of their close association with durable medical equipment in the CMS system, many facilities are now being audited. 


Mr. King said the licensure bill for Kentucky is modeled closely on all 11 licensure bills that have become law in their respective states to date.  It has a generous grandfather clause to fully assure anyone practicing now will be able to continue seeing their patients and supplying the services that they have been certified to perform.  The legislation closely follows the recommendations of the five national organizations representing OMP professionals, as pertains to the educational and training requirements for OMP patient care.  Mr. King said full licensure will assure patients that they are being treated by a peer-reviewed individual who has obtained the necessary education and training, and the most up-to-date certification, as well as continuing education in their specialty.  Licensure will provide a board which will review and investigate complaints pertaining to care provided by the professionals and gives the board the oversight to stop fraud and abuse of its members. 


Mr. King said, speaking as one who wears prosthesis and orthoses, it is very uncomfortable.  He said prosthetics are hot.  Small increases or decreases in weight can make the devises ill-fitting, so that skin is irritated and pressure becomes unbearable.  He said the prosthetist or orthotist becomes a life-line who never stops trying to help their patients meet goals and desires.  Mr. King said as a patient, and OMP professional, state licensure will assure Kentuckians of receiving the highest level of care possible.


Tony Ward told committee members that legislation providing licensure for this field has been introduced during the last three legislative sessions.  He said the bills were an effort to educate and create minimum standards that will be on par with those required by five national organizations.  He said the legislation was not trying to keep someone from working and would grandfather anyone in who was certified by a national organization.  Mr. Ward said those who have been practicing without national certification will also be able to continue practicing.  He said these people will receive training through continuing education.  He said that physicians will not be prohibited from providing orthotic services in their offices as long as they are within their scope of practice.  Mr. Ward said there was also a generous reciprocity clause in the bill, so that practitioners in other states that have standards equal to Kentucky's will be licensed in Kentucky.  Mr. Ward said the bill is being supported by the Amputee Coalition of America, the American Orthotic and Prosthetic Association, the Kentucky Medical Association, as well as podiatrist and physical therapist. 


Mr. Ward added that Senator Schickel and Representative Santoro have agreed to sponsor their legislation for the 2010 session. 


Representative Simpson asked if there were still people that were opposed to the legislation.  Mr. Ward said there was one person who is not in agreement that education should be required to practice in this field.  Representative Simpson said he questioned the necessity of the bill, adding that he was not certain that there should be an additional layer of regulation.  Mr. King said that technology was pushing the field forward quickly.  He said a prosthesis that in the past cost $4,000 would now cost up to $50,000 because of technology such as micro processors in knees.  He added that the population would be better served by the new higher technology.  Representative Simpson responded that part of the problem was the multiplicity of boards, some of which may not be necessary.  Representative Simpson continued that the creation a board would restrict the practitioner, as heretofore if you had a skill set you could practice; however, if this legislation passes the person would have to be certified.  He said that some regions in the state are underserved and asked if the bill passed, would it create a mechanism to serve these sparsely populated areas.  Mr. Ward said that there are numerous remote clinics that provide patient care.  Representative Simpson asked if there was proof of current bad services provided.  Mr. Ward said that last month during a KOPA event in Louisville individuals shared stories of poor care provided by an uncertified individual.  Representative Clark said he was concerned that there were not enough practitioners to sustain a new board.  He said he would also prefer more protection for professionals who are grandfathered.  Representative Owens asked how a person who was not certified, but was grandfathered in, would be disciplined.  Tony Ward responded that licensure would weed out those individuals who were providing poor care.  Representative Koenig asked if there was any chance that the KOPA would agree to being attached to another board, such as the Board of Occupational Therapy or the Board of Physical Therapy.  Mr. Ward responded that there have been discussions with the podiatry board; however, because they also deal with spinal and upper extremity issues that board was not receptive.  He said they have also spoken with the physical therapy board and would be willing to be combined with any board who would allow for that.


Representative Keene told members that the next meeting would be Friday, August 14, 2009.  However, that date was subject to change due to the Southern Legislative Conference beginning the following day.


Representative Rand thanked the committee for coming to the winery for their meeting.


There being no further business to come before the committee the meeting was adjourned at 11:38 AM.