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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

KRC Opposes Proposed Constitutional Amendment Giving Legislative Committees Veto Power Over Regulations  Posted: March 11, 2016

Dear Senators Schroder and Bowen:

I’m writing to express concerns regarding Senate Bill 244, which proposes a fundamental change in the current separation of powers in the Kentucky Constitution to allow a committee of the General Assembly to reject administrative regulations during the interim.

My concerns include the lack of necessity for such a dramatic shift in the current separation of powers, and the disproportionate power that such an amendment would place in a relative handful of legislators to parse the “intent” of the General Assembly as a body.

The separation of powers under our Commonwealth’s constitution is clear – the legislative branch enacts laws, the executive branch implements those laws, where authorized, by administrative regulation, and the courts of justice determine whether the regulations so promulgated comport with the underlying statute. SB 244, which is very similar to SB 1 from the 2014 Session, would alter this separation of powers in a fundamental way, reversing part of the 1984 decision in LRC v. Brown by creating a legislative veto that could be delegated to a subset of members of the House and Senate.

My first concern is the lack of necessity for the amendment. The premise of the bill, as reflected in the preamble, is that “the executive branch regularly disregards the votes of the General Assembly Committees and implements administrative regulations found to be deficient,” yet the record appears to show otherwise. Those instances in which the Administrative Regulations Review Subcommittee has determined a proposed administrative regulation to be deficient are extremely rare, at least from 2010 through 2015.

From November 2014 through November 30, 2015, executive branch agencies filed 52 emergency administrative regulations (a decrease of 33 percent from the prior year) and 588 ordinary administrative regulations (an increase of 11 percent over the prior year). Of the ordinary administrative regulations filed, 75 were new, 412 were amendments to existing administrative regulations, and 101 were amended after comments.

Of those ordinary administrative regulations reviewed, only four were found deficient, 327 were amended to conform to KRS Chapter 13A and other appropriate statutes, and 116 were approved as submitted by the agency. Additionally, the promulgating agencies withdrew 21 administrative regulations during this period. The four administrative regulations found deficient became effective notwithstanding the findings of deficiency, based on written determinations made by the Governor. Three of those four were regulations of the Horse Racing Commission, and the fourth was a State Health Plan for facilities and services. Thus of the ordinary administrative regulation reviewed in 2014-5, less than 1% of the regulations reviewed were found to be deficient and became effective notwithstanding that finding.

From November 2013 through November 30, 2014, executive branch agencies filed 78 emergency administrative regulations (an increase of 26 percent over the prior year) and 568 ordinary administrative regulations (an increase of 15 percent over the prior year). Of the ordinary administrative regulations filed, 103 were new, 374 were amendments to existing administrative regulations, and 91 were amended after comments.

Of those ordinary administrative regulations reviewed, one was found deficient, 292 were amended to conform to KRS Chapter 13A and other appropriate statutes, and 99 were approved as submitted by the agency. Additionally, 12 administrative regulations were withdrawn by the promulgating agencies during this period.

The one administrative regulation that was found deficient became effective notwithstanding the finding of deficiency based on a written determination made by the Governor was 907 KAR 1:604, Recipient cost-sharing, promulgated by the Cabinet for Health and Family Services, Department for Medicaid Services. Thus of the ordinary administrative regulations reviewed in 2013-4, less than .2% of the regulations reviewed were found to be deficient and became effective notwithstanding that finding.

According to the Report of the 2013 Administrative Regulation Review Subcommittee, from November 2012 through November 2013, executive branch agencies submitted 492 ordinary administrative regulations (up 19% from the prior year), 88 of which were new, 329 of which amended existing regulations, and 75 of which were amended after public comment.

Of the ordinary regulations reviewed, 434 were approved (some after the agency accepted comments from the Subcommittee regarding Chapter 13A compliance) and only 3 were found to be deficient. Of those 3, the agency withdrew one, and only two became effective based on written determinations by the Governor – the first being the required core academic standards, and the second, a regulation relating to managed care promulgated by the Department for Medicaid Services. Thus, less than 1% of the regulations reviewed were found to be deficient for 2013 and took effect notwithstanding that finding.

For the period of 2010 through 2012, the numbers are quite similar. In 2012, the Administrative Regulations Review Subcommittee made no finding of deficiency for any of the administrative regulations reviewed. In 2011, one regulation relating to assessment of ad valorem taxes on watercraft was found deficient and was later withdrawn by the agency.

The underlying premise of the proposed constitutional amendment, i.e., that the “executive branch regularly disregards the votes of the General Assembly Committees and implements administrative regulations found to be deficient” thus appears to have no factual basis in the recent past.

With the length of time involved in promulgation of administrative regulations, and with the General Assembly meeting in annual session, those rare instances in which the Governor determines to implement a regulation notwithstanding a finding of deficiency, can be addressed through specific legislation, and the full membership of the House and Senate can debate these matters of public policy. If the LRC believes that immediate action is necessary to prevent implementation of a regulation that it believes is contrary to law, it may seek a declaration of rights and may challenge the regulation under Kentucky Constitution Article 2.

My other concern is that the delegation of the power to prohibit the adoption of administrative regulations to a committee of the General Assembly diminishes both the functions of the judicial and executive branches, even as the preamble to the bill recognizes to be co-equal branches of government. It also diminishes the role of the House and Senate as collegial bodies by allowing a subset of the House and Senate to legislate. Particularly where the question is not one of executive branch authority, but rather a disagreement over the exercise of discretion that the General Assembly has granted to the Executive Branch, it should be the General Assembly as a whole that makes a decision as to whether to change the law in order to alter the outcome, not a committee acting as if it were the General Assembly.

I can fully appreciate the frustration that some members of the General Assembly may have concerning the rare occasions where a Governor decides to adopt a regulation notwithstanding the ARRS rejection of those regulations. I have had (and expressed) my own frustrations on occasion when I believe that an agency has acted in a manner that is not consonant with sound science or statutory mandate. Remedies already exist for those rare instances in which an agency is deemed to have acted in a manner contrary to the letter and intent of legislation. I would hope that those very rare instances could be addressed without upending the balance of powers in our Constitution that has worked effectively in the main for many years.

Cordially,

Tom FitzGerald
Director

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