The February meeting of the Administrative Regulation Review Subcommittee was held on Tuesday, February 8, 2000 at 4:00 PM, in Room 149 of the Capitol Annex. Representative John Arnold, Chair, called the meeting to order, and the secretary called the roll.
Guests: Linda Renschler, Diana Barber, Robin Thomerson, KHEAA; Amber Deitz, Susan Blake, John Patterson, Office of Attorney General; Larry Perkins, Board of Licensure for Professional Engineers and Land Surveyors; Nathan Goldman, Jill Cambron, Board of Nursing; Michael D. Vance, Wendy Satterly, James Grawe, Board of Certification of Alcohol and Drug Counselors; Tom Bennett, Department of Fish and Wildlife Resources; Jack Damron, Brenda Priestley, Department of Corrections; Kevin Noland, Terry Vance, Kentucky Board of Education; Vicky Horn, Department of Insurance; B. Anglin, Tommy Beckley, Child Laws and Social Awareness; Ronny Pryor, Capitol Solutions, Inc.
LRC Staff: Dave Nicholas, Donna Little, Stephen Lynn, Susan Wunderlich, Angela Phillips, Edna Lowery, Ellen Benzing, Peter Jakubiak.
The Subcommittee determined that the following administrative regulations, as amended by the promulgating agency and the Subcommittee, complied with statutory requirements:
Kentucky Higher Education Assistance Authority: Division of Student Services: Teacher Scholarship Loan Program
11 KAR 8:030. Teacher scholarships. Robin Thomerson, Assistant General Counsel, and Linda Renschler, Student Aid Branch Manager, represented the Authority.
This administrative regulation was amended as follows: Sections 2 and 5(2) were amended to reference loans or scholarships received prior to July 1, 1996, rather than July 15, 1996, to comply with KRS 164.769(4).
Board of Licensure for Professional Engineers and Land Surveyors
201 KAR 18:192. Continuing professional development. Larry Perkins, Executive Director, represented the Board.
In response to a question by Representative Allen, Mr. Perkins stated that this administrative regulation did not increase fees.
This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY paragraph was amended to correct statutory citations; (2) Section 1 was amended to alphabetize the definitions; (3) a new Section 10 was created to incorporate by reference a necessary form; and (4) Sections 1, 2, 5, and 9 were amended to comply with the drafting requirements of KRS 13A.222(4).
Board of Nursing
201 KAR 20:390. Nursing Incentive Scholarship Fund. Nathan Goldman, General Counsel, and Jill Cambron represented the Board.
This administrative regulation was amended as follows: (1) Section 1(4) was amended to correct a cross-reference to another administrative regulation; and (2) Sections 4, 5, 6, 10, and 11 were amended to comply with the: (a) format requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4).
201 KAR 20:411. Sexual Assault Nurse Examiner Program standards and credential requirements. This administrative regulation was amended as follows: Sections 2 and 7 were amended to comply with the drafting requirements of KRS 13A.222(4).
Justice Cabinet: Department of Corrections: Office of the Secretary
501 KAR 6:030. Kentucky State Reformatory. Jack Damron, Staff Attorney, represented the Department.
This administrative regulation was amended as follows: (1) the Reference section for KSR 10-02-08 was amended to correct statutory citation; and (2) KSR 10-02-02 was amended to cross reference another administrative regulation.
The Subcommittee determined that the following administrative regulations complied with statutory authority:
Kentucky Higher Education Assistance Authority: Division of Student Services: KHEAA Grant Programs
11 KAR 5:130. Student application.
Work Study Program
11 KAR 6:010. KHEAA Work-study Program
Osteopath Scholarship Program
11 KAR 14:030. Osteopathic Medicine Scholarship Program disbursement process.
11 KAR 14:060. Osteopathic Medicine Scholarship Program application of payments.
Board of Nursing
201 KAR 20:070. Licensure by examination. Nathan Goldman, General Counsel, and Jill Cambron represented the Board.
201 KAR 20:110. Licensure by endorsement.
201 KAR 20:240. Fees for applications and for services.
Board of Certification of Alcohol and Drug Counselors
201 KAR 35:050. Curriculum of study.
Department of Education: Office of District Support Services: School Terms, Attendance and Operation
702 KAR 7:065. Designation of agent to manage high school interscholastic athletics. Kevin Noland, Acting Commissioner and General Counsel, represented the Board.
In response to a question by Representative Bruce, Mr. Noland stated that this administrative regulation was amended annually to reflect changes in the bylaws of the Kentucky High School Athletic Association.
Bureau of Management Support Services: Health and Physical Education Programs
704 KAR 4:020. School health services.
Department of Insurance: Motor Vehicle Reparations (No-fault)
806 KAR 39:061. Repeal of 806 KAR 39:060.
The Subcommittee and promulgating administrative bodies agreed to defer consideration of the following administrative regulations to the March 6, 2000 meeting of the Subcommittee:
Office Of Attorney General: Child Sexual Abuse and Exploitation Prevention Board: Victims Advocacy Division: Kentucky Victim and Witness Protection Program
40 KAR 6:020 & E. Funding assistance for child sexual abuse medical examinations. Susan Blake, Director, Victims Advocacy Division, and John Patterson, Victims Advocacy Division, represented the Board. Tommy Beckley and Bonnie Anglin, Child Laws and Social Awareness, spoke in opposition to this administrative regulation.
Mr. Beckley stated that: (1) Child Laws and Social Awareness was a new foundation in Kentucky; (2) he: (a) questioned this administrative regulation’s use of the terms “suspected” and “victims”; (b) believed some children who were not abused were subjected to the examinations: 1. in violation of the rights of the children, their families and other citizens; and 2. which were a form of abuse against the children; (c) did not want additional money used to fund examinations for children who did not need to be examined; and (d) thought that under Kentucky law: 1. a person “suspected” of abuse had not actually been abused; and 2. a person was not a “victim” unless a crime had been perpetrated against the person; (4) a “victim of suspected abuse” required: (a) an actual victim against whom a crime had been perpetrated; and (b) more than a suspicion; (5) the phrase was used both in: (a) the applicable statute (KRS 15.935(1)(b)); and (b) this administrative regulation; (6) the legal challenges against the statute and this administrative regulation would cost the taxpayers and Kentucky’s children; (7) he: (a) was: 1. concerned about the effect these provisions would have on children; and 2. not concerned about the effect on abusive parents; (b) believed: 1. abusive parents should be punished; 2. the system should be revamped to spend money to: a. protect children; and b. build stronger families; and (c) did not want the state to continue to spend money in a direction that had not clearly been established; and (8) it was not possible to be a victim of suspected child abuse.
Ms. Blake stated that: (1) this administrative regulation established the plan to spend money received from the sale of licensed plates under the applicable statutes; and (2) the purpose of the license plate money was to fund examinations for children who had made an allegation of sexual abuse as part of the investigation of those allegations.
In response to questions by Representative Bruce, Ms. Blake stated that: (1) while she was an attorney, she did not understand the relevance of Mr. Beckley’s arguments to the promulgation of this administrative regulation; and (2) the program was established to fill a need caused by inadequate funding for child abuse examinations.
In response to a question by Representative Bruce, Mr. Beckley stated that: (1) because this administrative regulation quoted invalid statutory language, both this administrative regulation and the underlying statutes were invalid; (2) if a person could be considered a victim before a crime or event had occurred, that person should be able to: (a) contact his insurance company; (b) claim to be victim of a (future) car accident; and (c) receive payment from the insurance company; and (3) a person could not be considered a victim until the act had been proven.
In response to a question by Chairman Arnold, Mr. Beckley stated that the language he questioned was contained in a statute that was quoted in this administrative regulation.
In response to a question by Chairman Arnold, Ms. Blake stated that the board had promulgated this administrative regulation to: (1) comply with the statute; and (2) authorize funding to implement the law.
Chairman Arnold stated that: (1) because the concern related to statutory language, those concerns should be presented to the legislature or the committee that had considered this issue previously; (2) if the statute was amended, the administrative body would be required to amend this administrative regulation to comply with the new statutory provisions; (3) while he believed Mr. Beckley had raised valid concerns, the proper forum for discussion of those concerns was: (a) not this Subcommittee; and (b) the General Assembly; and (4) because the current statute included this provision, the subcommittee was required to approve this administrative regulation to establish the funding procedure for the examinations.
Ms. Anglin stated that: (1) this administrative regulation’s use of the words “suspected” and “believed” did not provide a safety net for a child against whom a social worker thought abuse had occurred; and (2) she believed the funding assistance encouraged and abused some children indirectly because applicants were authorized to perform sexual abuse examinations under the terms “suspected”, “believed” and “victims”.
Chairman Arnold stated that: (1) he was not going to argue the merits of the law; (2) because the concerns should be brought before the General Assembly, Mr. Beckley and Ms. Anglin should submit their concerns to the appropriate subject matter committee; and (3) this administrative regulation simply established a funding mechanism for compliance with current law.
Ms. Blake stated that the main purpose of the board was to prevent abuse.
Representative Allen asked if this administrative regulation should be found deficient to ensure that the issue was considered during the 2000 Regular Session of the General Assembly.
Subcommittee staff stated that: (1) this administrative regulation: (a) complied with the applicable statute; and (b) established a funding mechanism for examinations as authorized by the General Assembly; and (2) the concern regarding suspected abuse: (a) required amendments to applicable statutes; and (b) could not be addressed in an amendment to this administrative regulation.
Mr. Beckley stated that he wanted this administrative regulation deferred until his organization could determine if it was within the law.
Senator Roeding stated that: (1) page 4, line 9, of this administrative regulation included the phrase “children believed to have been sexually abused”; (2) he: (a) shared their concerns; and (b) had a friend who was: (a) falsely accused of abusing his blind child; and (b) required to spend a lot of time, money, and local embarrassment in response to the false allegations.
Senator Pendleton stated that he: (1) wanted to: (a) ensure that the law protected children who were being sexually abused; and (b) know what terminology could be used to ensure the protection of children; (2) did not want a loophole established that prevented picking up a child to investigate an allegation of abuse.
In response to a question by Chairman Arnold, Ms. Blake stated that: (1) traditionally, a social worker or police office: (a) received an allegation that a child had been sexually abused; and (b) subsequently made a referral for a medical examination; (2) even though evidence of abuse sometimes became evident during the medical examination, that evidence did not become evident in the majority of cases; (3) the examinations were used as a fact-finding tool to help establish whether the child was a victim of abuse; (4) the issue of funding qualified physicians who conducted these examinations was different than the issue of making false allegations; and (5) she believed that: (a) a child who made an allegation of sexual abuse was entitled to a medical examination to determine if abuse had occurred; and (b) funding should be available for those examinations.
Ms. Anglin stated that a child who was not abused would experience psychological harm if the child was required to undergo a sexual abuse examination.
Chairman Arnold stated that: (1) KRS Chapter 13A required the language used in an administrative regulation to mirror the applicable statutory language; (2) because the statute used the terms “suspected”, “victim”, and “believed”, this administrative regulation used those same terms; and (3) he believed that: (a) the issues raised by this administrative regulation should be referred to the judiciary committee to determine if a statutory amendment was required; and (b) the Subcommittee should defer consideration of this administrative regulation.
Ms. Blake stated that the board would agree to the requested deferral.
Mr. Patterson stated that this administrative regulation mirrored the language used in the statute.
Ms. Blake stated that KRS 15.935(1)(b) authorized disbursement of the funds to fund the cost of medical examinations of victims of suspected child abuse.
Subcommittee staff stated that because the same terminology was used in both the statute and this administrative regulation, this administrative regulation could not use different language until and unless the statute was amended.
The Subcommittee approved a motion by Representative Allen, seconded by Senator Roeding, to defer the Subcommittee’s consideration of this administrative regulation, as amended, and to refer the issues raised to the appropriate legislative committees.
This administrative regulation was amended as follows: (1) the RELATES TO paragraph was amended to correct statutory citations; (2) Section 1 was amended to delete provisions that repeated or summarized statutory provisions, as required by KRS 13A.120(2)(e) and (f); (3) Sections 1, 2, 3, and 5 were amended to comply with the: (a) format requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4); and (4) a new Section 7 was created to incorporate by reference required material.
Personnel Cabinet: Classified
101 KAR 2:102E. Classified leave administrative regulations.
101 KAR 3:015E. Leave administrative regulations for the unclassified service.
Board of Medical Licensure
201 KAR 9:175. Physician assistants; certification and supervision.
201 KAR 9:310. Continuing medical education.
Finance and Administration Cabinet: Commercial Mobile Radio Service Emergency Telecommunications Board
202 KAR 6:010E. Definitions for 202 KAR Chapter 6.
202 KAR 6:020E. CMRS carrier cost recovery.
202 KAR 6:030E. Confidential and proprietary information.
202 KAR 6:040E. Dispute resolution.
202 KAR 6:050E. PSAP certification.
202 KAR 6:060E. PSAP Pro Rata Fund disbursement.
Department of Fish and Wildlife Resources: Game
301 KAR 2:222E. Waterfowl hunting requirements.
301 KAR 2:226E. Youth waterfowl hunting season.
Justice Cabinet: Department of Corrections: Jail Standards for Full-Service Facilities
501 KAR 3:010. Definitions.
501 KAR 3:040. Personnel.
501 KAR 3:060. Security; control.
501 KAR 3:070. Safety; emergency procedures.
501 KAR 3:110. Classification.
501 KAR 3:120. Admission; release.
501 KAR 3:140. Inmate rights.
Office of the Secretary
501 KAR 6:130. Western Kentucky Correctional Complex.
Restricted Custody Center
501 KAR 7:010. Definitions.
501 KAR 7:020. Administration; management.
501 KAR 7:040. Personnel.
501 KAR 7:050. Physical plant.
501 KAR 7:060. Security; control.
501 KAR 7:080. Sanitation; hygiene.
501 KAR 7:120. Admission; release.
501 KAR 7:140. Inmate rights.
Direct Supervision for Full-Service Jails
501 KAR 10:010. Definitions.
501 KAR 10:040. Personnel.
501 KAR 10:060. Security; control.
501 KAR 10:070. Safety; emergency procedures.
501 KAR 10:110. Classification.
501 KAR 10:120. Admission; release.
501 KAR 10:140. Inmate rights.
Department of Juvenile Justice: Child Welfare
505 KAR 1:090E. Supervised placement revocation.
Transportation Cabinet: Department of Vehicle Regulation: Division of Motor Carriers
601 KAR 1:018. Special overweight or overdimensional permits.
Cabinet for Health Services: Department for Public Health: Division of Adult and Child Health: Health Services and Facilities
902 KAR 20:275. Mobile health services.
Department for Medicaid Services: Medicaid Services
907 KAR 1:013E. Payments for hospital inpatient services.
907 KAR 1:044E. Mental health center services.
907 KAR 1:155E. Payments for supports for community living services for individuals with mental retardation or developmental disabilities.
Payment and Services
907 KAR 3:110E. Community mental health center substance abuse services.
Kentucky Children's Health Insurance Program
907 KAR 4:030E. Kentucky Children's health Insurance Program Phase III Title XXI of the Social Security Act.
Department for Mental Health and Mental Retardation Services: Division of Substance Abuse: Substance Abuse
908 KAR 1:310. Certification standards and administrative procedures for driving under the influence programs.
908 KAR 1:311. Repeal of 908 KAR 1:010, 908 KAR 1:020, 908 KAR 1:030, 908 KAR 1:040, 908 KAR 1:050, 908 KAR 1:060, 908 KAR 1:070, 908 KAR 1:080, 908 KAR 1:090, 908 KAR 1:100, 908 KAR 1:110, 908 KAR 1:120, 908 KAR 1:130, 908 KAR 1:140, 908 KAR 1:150, 908 KAR 1:160, 908 KAR 1:170, 908 KAR 1:180, 908 KAR 1:190, 908 KAR 1:200, 908 KAR 1:210, 908 KAR 1:220, 908 KAR 1:230, 908 KAR 1:240, 908 KAR 1:250, and 908 KAR 1:260.
908 KAR 1:370. Licensing procedures and standards for persons and agencies operating alcohol and other drug abuse treatment programs.
Cabinet For Families And Children: Department for Community Based Services: K-TAP, Kentucky Works, Welfare to Work, State Supplementation
921 KAR 2:006E. Technical requirements for the Kentucky Transitional Assistance Program (K-TAP).
921 KAR 2:016E. Standards for need and amount for the Kentucky Transitional Assistance Program (K-TAP).
921 KAR 2:017E. Kentucky Works supportive services.
921 KAR 2:370E. Technical requirements for Kentucky Works.
The Subcommittee adjourned at 4:30 p.m. until March 6, 2000, at 2 p.m. in Room 149 of the Capitol Annex.