CHAPTER 210 State and Regional Mental Health Programs

210.005. Definitions for chapter.

As used in this chapter, unless the context otherwise requires:

  1. “Individual with an intellectual disability” means a person with significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period.
  2. “Mental illness” means a diagnostic term that covers many clinical categories, typically including behavioral or psychological symptoms, or both, along with impairment of personal and social function, and specifically defined and clinically interpreted through reference to criteria contained in the Diagnostic and Statistical Manual of Mental Disorders (Third Edition) and any subsequent revision thereto, of the American Psychiatric Association.
  3. “Chronic” means that clinically significant symptoms of mental illness have persisted in the individual for a continuous period of at least two (2) years, or that the individual has been hospitalized for mental illness more than once in the last two (2) years, and that the individual is presently significantly impaired in his ability to function socially or occupationally, or both.
  4. “Cabinet” means the Cabinet for Health and Family Services.
  5. “Deaf or hard-of-hearing” means having a hearing impairment so that a person cannot hear and understand speech clearly through the ear alone, irrespective of the use of any hearing aid device.
  6. “Secretary” means the secretary of the Cabinet for Health and Family Services.

History. Enact. Acts 1962, ch. 106, Art. XI, § 1; 1972, ch. 203, § 43; 1976, ch. 332, § 23; 1982, ch. 210, § 1, effective July 15, 1982; 1986, ch. 428, § 1, effective July 15, 1986; 1988, ch. 283, § 6, effective July 15, 1988; 1992, ch. 340, § 2, effective July 14, 1992; 1998, ch. 426, § 243, effective July 15, 1998; 2005, ch. 99, § 298, effective June 20, 2005; 2012, ch. 146, § 67, effective July 12, 2012.

NOTES TO DECISIONS

Cited:

Delehanty v. Kahn, 446 S.W.2d 553, 1969 Ky. LEXIS 121 ( Ky. 1969 ).

210.010. Rules and regulations.

The secretary for health and family services shall have authority to prescribe rules and regulations for the administration of the cabinet and of the institutions under the control of the cabinet, including power to regulate the payment of money to patients in mental institutions for work performed.

History. Enact. Acts 1952, ch. 50, § 1; 1958, ch. 164, § 3; 1974, ch. 74, Art. VI, § 53; 1998, ch. 426, § 244, effective July 15, 1998; 2005, ch. 99, § 299, effective June 20, 2005.

Research References and Practice Aids

Cross-References.

Adoption of administration regulations, KRS 13A.120 .

Deputy heads of departments and directors of divisions, KRS 12.050 .

Heads of departments, appointment by Governor, KRS 12.040 .

210.020. Qualifications of commissioner and other personnel — Compensation. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 50, § 2; 1960, ch. 64, § 1) was repealed by Acts 1974, ch. 74, Art. VI, § 108.

210.030. Advisory council on mental health. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 50, § 3) was repealed by Acts 1974, ch. 74, Art. VI, § 108.

210.031. Advisory committee on need for services for deaf or hard-of-hearing persons.

  1. The cabinet shall establish an advisory committee of sixteen (16) members to advise the Department for Behavioral Health, Developmental and Intellectual Disabilities of the need for particular services for persons who are deaf or hard-of-hearing.
    1. At least eight (8) members shall be deaf or hard-of-hearing and shall be appointed by the secretary. Four (4) deaf or hard-of-hearing members, representing one (1) of each of the following organizations, shall be appointed from a list of at least two (2) nominees submitted from each of the following organizations:
      1. The Kentucky Association of the Deaf;
      2. The A.G. Bell Association;
      3. The Kentucky School for the Deaf Alumni Association; and
      4. Self Help for the Hard of Hearing.

        The remaining four (4) deaf or hard-of-hearing members shall be appointed by the secretary from a list of at least eight (8) nominees submitted by the Kentucky Commission on the Deaf and Hard of Hearing.

    2. One (1) member shall be a family member of a deaf or hard-of-hearing consumer of mental health services and shall be appointed by the secretary from a list of nominees accepted from any source.
    3. The head of each of the following entities shall appoint one (1) member to the advisory committee:
      1. The Cabinet for Health and Family Services, Department for Behavioral Health, Developmental and Intellectual Disabilities;
      2. The Education and Workforce Development Cabinet, Office of Vocational Rehabilitation;
      3. The Cabinet for Health and Family Services, Department for Aging and Independent Living;
      4. The Education and Workforce Development Cabinet, Commission on the Deaf and Hard of Hearing;
      5. The Kentucky Registry of Interpreters for the Deaf; and
      6. A Kentucky School for the Deaf staff person involved in education.
    4. The remaining member shall be a representative of a regional board for mental health or individuals with an intellectual disability, appointed by the commissioner of the Department for Behavioral Health, Developmental and Intellectual Disabilities from a list composed of two (2) names submitted by each regional board for mental health or individuals with an intellectual disability.
  2. Of the members defined in subsection (1)(a) and (b) of this section, three (3) shall be appointed for a one (1) year term, three (3) shall be appointed for a two (2) year term, and three (3) shall be appointed for a three (3) year term; thereafter, they shall be appointed for three (3) year terms. The members defined under subsection (1)(c) and (d) of this section shall serve with no fixed term of office.
  3. The members defined under subsection (1)(a) and (b) of this section shall serve without compensation but shall be reimbursed for actual and necessary expenses; the members defined under subsection (1)(c) and (d) of this section shall serve without compensation or reimbursement of any kind.
  4. The Department for Behavioral Health, Developmental and Intellectual Disabilities shall make available personnel to serve as staff to the advisory committee.
  5. The advisory committee shall meet quarterly at a location determined by the committee chair.
    1. The advisory committee shall prepare a biennial report which: (6) (a) The advisory committee shall prepare a biennial report which:
      1. Describes the accommodations and the mental health, intellectual disability, development disability, and substance abuse services made accessible to deaf and hard-of-hearing persons;
      2. Reports the number of deaf or hard-of-hearing persons served;
      3. Identifies additional service needs for the deaf and hard-of-hearing; and
      4. Identifies a plan to address unmet service needs.
    2. The report shall be submitted to the secretary, the commissioner of the Department for Behavioral Health, Developmental and Intellectual Disabilities, and the Interim Joint Committee on Health and Welfare by July 1 of every odd-numbered year.

History. Enact. Acts 1992, ch. 340, § 1, effective July 14, 1992; 1994, ch. 209, § 19, effective July 15, 1994; 1998, ch. 426, § 245, effective July 15, 1998; 2000, ch. 6, § 28, effective July 14, 2000; 2005, ch. 99, § 300, effective June 20, 2005; 2006, ch. 211, § 123, effective April 21, 2006; 2007, ch. 24, § 18, effective June 26, 2007; 2009, ch. 11, § 63, effective June 25, 2009; 2012, ch. 146, § 68, effective July 12, 2012; 2012, ch. 158, § 35, effective July 12, 2012.

Legislative Research Commission Note.

(7/12/2012). This statute was amended by 2012 Ky. Acts chs. 146 and 158, which do not appear to be in conflict and have been codified together.

210.035. Medical school-mental health coordinating committee — Functions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 13, § 1; 1974, ch. 74, Art. VI, § 54) was repealed by Acts 1986, ch. 428, § 7, effective July 15, 1986.

210.040. Powers and duties of cabinet.

The Cabinet for Health and Family Services shall:

  1. Exercise all functions of the state in relation to the administration and operation of the state institutions for the care and treatment of persons with mental illness;
  2. Establish or acquire, in accordance with the provisions of KRS 56.440 to 56.550 , other or additional facilities for psychiatric care and treatment of persons who are or may become state charges;
  3. Cooperate with other state agencies for the development of a statewide mental health program looking toward the prevention of mental illness and the post-institutional care of persons released from public or private mental hospitals;
  4. Provide for the custody, maintenance, care, and medical and psychiatric treatment of the patients of the institutions operated by the cabinet;
  5. Provide psychiatric consultation for the state penal and correctional institutions, and for the state institutions operated for children or for persons with an intellectual disability;
  6. Administer and supervise programs for the noninstitutional care of persons with mental illness;
  7. Administer and supervise programs for the care of persons with chronic mental illness, including but not limited to provision of the following:
    1. Identification of persons with chronic mental illness residing in the area to be served;
    2. Assistance to persons with chronic mental illness in gaining access to essential mental health services, medical and rehabilitation services, employment, housing, and other support services designed to enable persons with chronic mental illness to function outside inpatient institutions to the maximum extent of their capabilities;
    3. Establishment of community-based transitional living facilities with twenty-four (24) hour supervision and community-based cooperative facilities with part-time supervision; provided that, no more than either one (1) transitional facility or one (1) cooperative facility may be established in a county containing a city of the first class or consolidated local government with any funds available to the cabinet;
    4. Assurance of the availability of a case manager for each person with chronic mental illness to determine what services are needed and to be responsible for their provision; and
    5. Coordination of the provision of mental health and related support services with the provision of other support services to persons with chronic mental illness;
  8. Require all providers who receive public funds through state contracts, state grants, or reimbursement for services provided to have formalized quality assurance and quality improvement processes, including but not limited to a grievance procedure; and
  9. Supervise private mental hospitals receiving patients committed by order of a court.

History. Enact. Acts 1952, ch. 50, § 4; 1960, ch. 64, § 2; 1974, ch. 74, Art. VI, § 55; 1982, ch. 210, § 2, effective July 15, 1982; 1998, ch. 426, § 246, effective July 15, 1998; 2002, ch. 346, § 200, effective July 15, 2002; 2003, ch. 5, § 5, effective June 24, 2003; 2005, ch. 99, § 301, effective June 20, 2005; 2010, ch. 141, § 14, effective July 15, 2010.

Opinions of Attorney General.

In the event that no committee has been appointed by the court and the department of mental health (now Cabinet for Health and Family Services) has not been so qualified, the consent of the natural parents or legal parents under adoption proceedings or the nearest relative acting in loco parentis should be obtained before surgery is performed. OAG 67-457 .

When time is of the essence and the consent of the next of kin cannot be readily obtained the department (now cabinet) may request the court to appoint it as committee so that it can give consent for a surgical operation for the incompetent. OAG 67-457 .

Although there is no specific statutory provision in KRS 210.040 to 210.057 authorizing the Department for Human Resources (now Cabinet for Health and Family Services) to contract with a private corporation for the operation of state owned facilities dealing with the mentally ill, such a contract would probably be legal if first approved by the Department of Finance and Administration (now Finance and Administration Cabinet). OAG 75-250 .

Although the Commonwealth of Kentucky is immune from all lawsuits under Ky. Const., § 231, unless the General Assembly provides otherwise, if a private agency with whom the state had a contract failed to provide adequate services to recipients for whom the state is mandated to provide services, under KRS 44.070 the injured party may file a complaint against the Board of Claims or against the agent of the state and both the state and the agency would be responsible. (Pursuant to 2003 amendment, all providers who receive state funds must now have formalized quality assurance and improvement processes, including a greivance procedure.) OAG 75-250 .

The Commonwealth of Kentucky is charged by KRS 210.040 to 210.057 with providing mental health services to the citizens of the Commonwealth and a contract between the state and private agencies does not in any way alleviate the state’s responsibility to the persons to whom it is required to provide services. OAG 75-250 .

210.042. Funding for nonprofit agency — Matching funds.

  1. The Cabinet for Health and Family Services may provide, to the extent funds are available under KRS 210.040 and under conditions and standards established by the cabinet, funds to any nonprofit agency recognized as operating in the field of mental health and whose objectives are to carry out the purposes of KRS 210.040 .
  2. The funds, if provided, may be matched on a fifty-fifty (50-50) basis by the nonprofit agency receiving such funds. The cabinet shall determine whether the match may be in money or in kind services or other match.

History. Enact. Acts 1982, ch. 210, § 3, effective July 15, 1982; 1998, ch. 426, § 247, effective July 15, 1998; 2005, ch. 99, § 302, effective June 20, 2005.

210.045. Additional duties — Requirements as to closure of certain state-owned or state-operated facilities for persons with an intellectual disability.

  1. The Cabinet for Health and Family Services shall:
    1. Maintain, operate, and assume program responsibility for all state institutions and facilities for intellectual disability;
    2. Provide rehabilitation services for individuals with an intellectual disability through educational and training programs;
    3. Provide medical and allied services to individuals with an intellectual disability and their families;
    4. Encourage and assist communities to develop programs and facilities in the field of intellectual disability;
    5. Sponsor or carry out research, or both, in the field of intellectual disability;
    6. Assist other governmental and private agencies in the development of programs and services for individuals with an intellectual disability and their families and for the prevention of intellectual disability, and coordinate programs and services so developed;
    7. Provide written notice to the Legislative Research Commission of its intent to propose legislation to permit immediate or gradual closure of any state-owned or state-operated facility that provides residential services to persons with an intellectual disability or other developmental disabilities at least sixty (60) days prior to the next legislative session; and
      1. Provide written notice by registered mail to each resident, his or her immediate family, if known, and his or her guardian of its intent to propose legislation to permit immediate or gradual closure of any state-operated facility that provides residential services to persons with an intellectual disability or other developmental disabilities at least sixty (60) days prior to the next legislative session; and (h) 1. Provide written notice by registered mail to each resident, his or her immediate family, if known, and his or her guardian of its intent to propose legislation to permit immediate or gradual closure of any state-operated facility that provides residential services to persons with an intellectual disability or other developmental disabilities at least sixty (60) days prior to the next legislative session; and
      2. Include in the written notice provided under this paragraph that the resident, the resident’s immediate family, his or her guardian, or any other interested party with standing to act on behalf of the resident has the right to pursue legal action relating to the notice provisions of this paragraph and relating to the closure of the facility.
  2. Any state-owned or state-operated facility or group home that provides residential services to persons with an intellectual disability or other developmental disabilities and that has been funded by the General Assembly in a specific biennium, shall not be closed, nor shall the Cabinet for Health and Family Services announce the pending closure of the facility, during the same biennium except through the provisions specified by subsection (1) of this section.
  3. The Cabinet for Health and Family Services may close any state-owned or state-operated facility that provides residential services to persons with an intellectual disability or other developmental disabilities upon the effective date of an adopted act of legislation.
  4. When a demonstrated health or safety emergency exists for a facility or a federal action that requires or necessitates a gradual or immediate closure exists for the facility, the cabinet may seek relief from the requirements of this section in the Circuit Court of the county where the facility is located. In these situations:
    1. The cabinet shall provide written notice by registered mail to each resident, the resident’s immediate family, if known, and his or her guardian, at least ten (10) days prior to filing an emergency petition in the Circuit Court; and
    2. All interested parties, including the cabinet, the resident, his or her immediate family, his or her guardian, or other interested parties with standing to act on behalf of the resident shall have standing in the proceedings under this subsection.
  5. Any resident, family member or guardian, or other interested parties, as defined by KRS 387.510(12) with standing to act on behalf of the resident who wishes to challenge the decision or actions of the Cabinet for Health and Family Services regarding the notice requirements of subsection (1) of this section shall have a cause of action in the Circuit Court of the county in which the facility is located, or in Franklin Circuit Court. In addition to other relief allowable by law, the resident, family member or guardian, or other interested party with standing to act on behalf of the resident may seek compensatory damages and attorney fees. Punitive damages shall not be allowable under this section.
  6. Any resident, family member or guardian, or other interested parties, as defined by KRS 387.510(12) with standing to act on behalf of the resident may challenge the decision of the state to close a facility in a de novo hearing in the Circuit Court of the county in which the facility is located, or in Franklin Circuit Court. In addition to other relief allowable by law, the resident, family member or guardian, or other interested party with standing to act on behalf of the resident may seek compensatory damages and attorney fees. Punitive damages shall not be allowable under this section.

History. Enact. Acts 1962, ch. 106, Art. XI, § 2; 1974, ch. 74, Art. VI, § 107(1), (9); 1998, ch. 426, § 248, effective July 15, 1998; 2000, ch. 318, § 1, effective April 5, 2000; 2005, ch. 99, § 303, effective June 20, 2005; 2010, ch. 141, § 15, effective July 15, 2010.

210.047. Facility closure hearing — Required considerations.

A court hearing as provided under KRS 210.045(6) shall consider each of the following items relevant to the closure of the facility:

  1. Estimated timelines for the implementation of the closure of the facility;
  2. The types and array of available and accessible community-based services for individuals with an intellectual disability and other developmental disabilities and their families;
  3. The rights of individuals with an intellectual disability and other developmental disabilities;
  4. The process used to develop a community living plan;
  5. Individual and community monitoring and safeguards to protect health and safety;
  6. The responsibilities of state and local governments;
  7. The process used to transfer ownership or the state’s plan to reuse the property; and
  8. Other issues identified by the cabinet, the resident, family member or guardian, or other interested party with standing to act on behalf of the resident that may affect the residents, their families, employees, and the community.

History. Enact. Acts 2000, ch. 318, § 2, effective April 5, 2000; 2010, ch. 141, § 16, effective July 15, 2010.

210.049. Applicability of notice provisions to pre-existing closure announcements — Delay of hearings.

For any facility that the cabinet has announced plans for closure prior to April 5, 2000, the cabinet shall be subject to the notice provisions of KRS 210.045 within ten (10) days of April 5, 2000. The cabinet shall delay proceedings toward closure until the proceedings for all hearings permitted under KRS 210.045 have been completed.

History. Enact. Acts 2000, ch. 318, § 3, effective April 5, 2000.

210.050. Administrative organization of department. [Repealed.]

Compiler’s Notes.

This section (Acts 1952, ch. 50, § 5; 1954, ch. 14, § 1; 1958, ch. 164, § 1) was repealed by Acts 1960, ch. 64, § 10.

210.051. Kentucky Eating Disorder Council — Membership — Duties — Grant applications — Reports — Sunset of council in 2030 unless reestablished.

  1. The Kentucky Eating Disorder Council is hereby established in the Cabinet for Health and Family Services and shall be attached to the cabinet for administrative purposes.
  2. The following members shall be appointed to the council:
    1. The secretary of the Cabinet for Health and Family Services or his or her designee;
    2. The commissioner of the Department for Medicaid Services or his or her designee;
    3. The commissioner of the Department for Behavioral Health, Developmental and Intellectual Disabilities or his or her designee;
    4. The commissioner of the Department for Public Health or his or her designee;
    5. The commissioner of the Department of Insurance or his or her designee;
    6. The commissioner of the Department of Education or his or her designee;
    7. The president of the Council on Postsecondary Education or his or her designee;
    8. One (1) representative to be appointed by the Governor from a list of three (3) individuals submitted by the Kentucky Hospital Association;
    9. One (1) psychologist who works with individuals who have eating disorders to be appointed by the Governor from a list of three (3) individuals provided by the Kentucky Psychological Association;
    10. One (1) pediatrician who works with individuals who have eating disorders to be appointed by the Governor from a list of three (3) individuals provided by the Kentucky Chapter of the American Academy of Pediatrics;
    11. One (1) psychiatrist who works with individuals who have eating disorders to be appointed by the Governor from a list of three (3) individuals provided by the Kentucky Psychiatric Medical Association;
    12. One (1) licensed clinical social worker who works with individuals who have eating disorders to be appointed by the Governor from a list of three (3) individuals provided by the Kentucky Chapter of the National Association of Social Workers;
    13. One (1) psychiatric nurse practitioner who works with individuals who have eating disorders to be appointed by the Governor from a list of three (3) individuals provided by the Kentucky Association of Nurse Practitioners and Nurse-Midwives;
    14. One (1) registered and licensed dietician who works with individuals who have eating disorders to be appointed by the Governor from a list of three (3) individuals provided by the Kentucky Dietetics Association;
    15. One (1) eating disorder researcher to be appointed by the Governor from a list of three (3) individuals provided by the Kentucky Psychological Association;
    16. One (1) public health policy researcher to be appointed by the Governor from a list of three (3) individuals provided by the Kentucky Public Health Association; and
    17. Three (3) individuals who have an eating disorder or who have experience with individuals who have eating disorders to be appointed by the Governor from a list of five (5) individuals provided by the Louisville Center for Eating Disorders until a statewide consumer and family advocacy organization is established.
  3. The members of the council shall elect a chair and vice chair to serve one (1) year.
  4. The council shall meet at least quarterly or upon the call of the chair.
  5. After the initial appointments, members of the council shall serve terms of two (2) years, beginning the day of appointment. Members of the council shall be eligible to succeed themselves and shall serve until their successors are appointed.
  6. Members of the council shall serve without compensation but shall be reimbursed for reasonable and necessary expenses in accordance with state travel expenses and reimbursement administrative regulations.
  7. The council shall:
    1. Oversee the development and implementation of eating disorder awareness, education, and prevention programs;
    2. Identify strategies for improving access to adequate diagnosis and treatment services;
    3. Assist the cabinet in identifying eating disorder research projects;
    4. Work with the Cabinet for Health and Family Services and other appropriate entities to routinely examine existing surveillance systems, data collection systems, and administrative databases to determine the best strategies for implementing evidence-based eating disorder measures that provide data for program and policy planning purposes;
    5. As reasonably as possible, collaborate and coordinate on data research projects with the Cabinet for Health and Family Services and other appropriate entities; and
    6. Make recommendations regarding legislative and regulatory changes as appropriate.
  8. The council shall apply for grants from the federal government, private foundations, or other sources that may be available for programs related to eating disorders.
  9. The council shall report annually beginning December 1, 2020, on its activities, findings, and recommendations to the Governor and the Legislative Research Commission.
  10. The Kentucky Eating Disorder Council shall cease to exist on December 1, 2030, unless otherwise reestablished by the General Assembly.

HISTORY: 2020 ch. 56, § 1, effective July 15, 2020.

Legislative Research Commission Notes.

(7/15/2020). The Reviser of Statutes has corrected a manifest clerical or typographical error in this statute during codification of 2020 Ky. Acts ch. 58, sec. 1 under the authority of KRS 7.136(1)(h). The introductory language of subsection (2) of this statute in that Act read, “The following members shall be appointed to the council:” but in paragraphs (i) to (n) of that subsection the words “nominated by the Governor” are used instead of “appointed by the Governor.” The members cited in those paragraphs are clearly to be appointed rather than nominated by the Governor; therefore, “nominated” has been changed to “appointed” in those paragraphs.

210.052. Kentucky eating disorder fund.

  1. The Kentucky eating disorder fund is hereby created as a separate trust and agency fund. The fund shall be administered by the Cabinet for Health and Family Services for the purpose outlined in KRS 210.051 .
  2. The fund may receive amounts from state or federal appropriations, grants, contributions, or other moneys made available for the purposes of the fund. All grants, contributions, or moneys received shall be deposited in the State Treasury in a trust and agency fund account to the credit of the Kentucky eating disorder fund. Moneys in the fund shall be used to support the Kentucky Eating Disorder Council or similar program established under KRS 210.051 and eating disorder prevention programs in Kentucky.
  3. Notwithstanding KRS 45.229 , fund amounts not expended at the close of a fiscal year shall not lapse but shall be carried forward to the next fiscal year.
  4. Any interest earned on moneys in the fund shall become a part of the trust fund and shall not lapse.
  5. Moneys in the fund are appropriated for the purposes set forth in this section and shall not be appropriated or transferred by the General Assembly for any other purposes.

HISTORY: 2020 ch. 56, § 2, effective July 15, 2020.

210.053. Kentucky Mental Health First Aid Training Program.

  1. The Cabinet for Health and Family Services shall establish and administer the Kentucky Mental Health First Aid Training Program or a similar program to train professionals and other members of the public to identify and assist individuals who may have or may be developing a mental health disorder, a substance use disorder, or who may be experiencing a mental health or substance use crisis. The program shall promote access to certified trainers who have obtained certification in mental health first aid training by successfully completing an instructor training program approved by the cabinet.
  2. The Kentucky Mental Health First Aid Training Program or a similar program shall promote training that is appropriate in content and vocabulary for the language, educational level, and literacy of the trainees and individuals to be served and that accomplishes the following objectives:
    1. Build mental health and substance use literacy that is designed to help the public identify, understand, and respond to the signs of mental health disorders, substance use disorders, and mental health or substance use crises; and
    2. Enable the trainee to assist an individual who may have or may be developing a mental health disorder, a substance use disorder, or who may be experiencing a mental health or substance use crisis. The ability to assist an individual includes knowledge of how to:
      1. Recognize the symptoms of a mental health disorder, a substance use disorder, and a mental health or substance use crisis;
      2. Provide initial help;
      3. Refer individuals requiring assistance toward appropriate professional help including help for individuals who may be in crisis;
      4. Prevent a mental health disorder, a substance use disorder, or a mental health or substance use crisis from deteriorating into a more serious condition that may lead to more costly interventions or treatments or harm to an individual; and
      5. Promote healing, recovery, and good mental health.
  3. Subject to appropriations provided by the General Assembly, available funds in the Kentucky mental health first aid training fund created in KRS 210.054 , or other available funding, the Cabinet for Health and Family Services shall award training grants for mental health first aid training provided by certified trainers. The training grants may support training courses or provide hardship subsidies for training fees.
  4. The cabinet shall make awards equitably among geographical regions and meet the training needs of rural areas, areas with underserved populations, and areas with health care provider shortages. The recipients of awards may include but are not limited to law enforcement, corrections, education, retail establishments, military, older adults, and youth-focused agencies.
  5. The cabinet shall ensure that evaluation criteria are established and utilized to measure the distribution of the training grants and the fidelity of the training process in achieving the main objectives of the program.
  6. The cabinet shall include information on training programs that are available on the cabinet’s Web site.
  7. The cabinet shall promulgate administrative regulations to implement this section.

HISTORY: 2020 ch. 69, § 1, effective July 15, 2020.

210.054. Kentucky mental health first aid training fund.

  1. The Kentucky mental health first aid training fund is hereby created as a separate trust and agency fund. The fund shall be administered by the Cabinet for Health and Family Services for the purpose outlined in KRS 210.053 .
  2. The fund may receive amounts from state or federal appropriations, grants, contributions, or other moneys made available for the purposes of the fund. All grants, contributions, or moneys received shall be deposited in the State Treasury in a trust and agency fund account to the credit of the Kentucky mental health first aid training fund. Moneys in the fund shall be used to support the Mental Health First Aid Training Program or similar program established under KRS 210.053 and suicide prevention programs in Kentucky.
  3. Notwithstanding KRS 45.229 , fund amounts not expended at the close of a fiscal year shall not lapse but shall be carried forward to the next fiscal year.
  4. Any interest earned on moneys in the fund shall become a part of the trust fund and shall not lapse.
  5. Moneys in the fund are appropriated for the purposes set forth in this section and shall not be appropriated or transferred by the General Assembly for any other purposes.

HISTORY: 2020 ch. 69, § 2, effective July 15, 2020.

210.055. Additional powers of cabinet — Administrative regulations — Education and training.

The Cabinet for Health and Family Services may:

  1. Promulgate reasonable rules and regulations for the purposes of carrying out the provisions of KRS 210.045 , including regulations establishing the minimum and maximum ages within which individuals with an intellectual disability are eligible:
    1. To participate in programs operated by the cabinet;
    2. To become patients in institutions operated by the cabinet;
  2. Participate in the education and training of professional and other persons in the area of intellectual disabilities, and may encourage and assist private and public agencies and institutions to participate in similar education and training;
  3. Do all other things reasonably necessary to carry out the provisions of KRS 210.045 .

History. Enact. Acts 1962, ch. 106, Art. XI, § 3; 1974, ch. 74, Art. VI, § 107(1), (9); 1998, ch. 426, § 249, effective July 15, 1998; 2005, ch. 99, § 304, effective June 20, 2005; 2010, ch. 141, § 17, effective July 15, 2010; 2012, ch. 146, § 69, effective July 12, 2012.

210.057. Powers and duties as to research on controlled substances.

  1. The Cabinet for Health and Family Services shall conduct research into all aspects of controlled substances as defined in KRS 218A.010 in coordination with the Kentucky Board of Pharmacy.
  2. The Cabinet for Health and Family Services may authorize persons engaged in research on the use and effects of dangerous substances to withhold the names and other identifying characteristics of persons who are subjects of such research. Persons who obtain this authorization may not be compelled in any state civil, criminal, administrative, legislative, or other proceeding to identify the subjects of research for which such authorization was obtained.
  3. The Cabinet for Health and Family Services may authorize the possession and distribution of controlled dangerous substances by persons engaged in research. Persons who obtain this authorization shall be exempt from state prosecution for possession and distribution of dangerous substances to the extent authorized by the Cabinet for Health and Family Services.

History. Enact. Acts 1970, ch. 278, § 6; 1974, ch. 74, Art. VI, § 107(1), (9); 1980, ch. 188, § 200, effective July 15, 1980; 1998, ch. 426, § 250, effective July 15, 1998; 2005, ch. 99, § 305, effective June 20, 2005.

210.060. Superintendents of institutions — Employment of personnel. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 50, § 6) was repealed by Acts 1960, ch. 64, § 10.

210.065. Division of mental retardation. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 106, Art. XI, § 4) was repealed by Acts 1974, ch. 74, Art. VI, § 108.

210.070. Removal, suspension and reinstatement of employes. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 50, § 7) was repealed by Acts 1960, ch. 63, § 26.

210.075. Advisory council on mental retardation. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 106, Art. XI, § 5; 1966, ch. 117, § 1) was repealed by Acts 1974, ch. 74, Art. VI, § 108.

210.080. Secretary may transfer employees.

The secretary for health and family services may transfer any employee between the institutions operated by the cabinet, or to the headquarters of the cabinet. Necessary moving expenses involved in such transfers shall be paid by the cabinet.

History. Enact. Acts 1952, ch. 50, § 8; 1960, ch. 64, § 3; 1974, ch. 74, Art. VI, § 107(1), (8) and (21); 1998, ch. 426, § 251, effective July 15, 1998; 2005, ch. 99, § 306, effective June 20, 2005.

210.090. Partisan political activity prohibited.

Neither the commissioner of the Department for Behavioral Health, Developmental and Intellectual Disabilities of the Cabinet for Health and Family Services nor his deputy nor any superintendent or director of an institution of the Department for Behavioral Health, Developmental and Intellectual Disabilities shall be permitted to engage in any partisan political activity.

History. Enact. Acts 1952, ch. 50, § 9; 1960, ch. 64, § 4; 1968, ch. 90, § 47; 1974, ch. 74, Art. VI, § 56; 1986, ch. 428, § 2, effective July 15, 1986; 1998, ch. 426, § 252, effective July 15, 1998; 2005, ch. 99, § 307, effective June 20, 2005; 2012, ch. 146, § 70, effective July 12, 2012; 2012, ch. 158, § 36, effective July 12, 2012.

Legislative Research Commission Note.

(7/12/2012). This statute was amended by 2012 Ky. Acts chs. 146 and 158, which do not appear to be in conflict and have been codified together.

210.100. Exemption of institutional officers and employees from personal attendance as witness.

No officer or employee of any institution operated by the Cabinet for Health and Family Services shall be required to give personal attendance as a witness in any civil suit out of the county in which the institution is located, but his deposition shall be taken in lieu thereof.

History. Enact. Acts 1952, ch. 50, § 10; 1974, ch. 79, Art. VI, § 107(1), (9); 1998, ch. 426, § 253, effective July 15, 1998; 2005, ch. 99, § 308, effective June 20, 2005.

Research References and Practice Aids

Cross-References.

Witnesses, KRS Ch. 421; KRE 601 to 615.

210.110. Officers, employees, and agents of Cabinet for Health and Family Services and regional community programs for behavioral health, developmental and intellectual disabilities not to sell to or make contracts with institutions, facilities, or organizations under cabinet’s control if conflict of interest involved.

  1. No officer, employee, or agent of the Cabinet for Health and Family Services, a regional community board for mental health or individuals with an intellectual disability or a nonprofit corporation administering a regional community program for mental health or individuals with an intellectual disability shall sell anything to any institution, facility, or organization under the control of the cabinet nor participate in selection, or in the award or administration of a contract supported by state or federal funds if a conflict of interest, real or apparent, would be involved.
  2. Such a conflict of interest would arise when:
    1. The employee, officer, or agent;
    2. Any member of his immediate family;
    3. His or her partner; or
    4. An organization which employs, or is about to employ, any of the above, has a financial or other interest in the firm selected for award.

History. Enact. Acts 1952, ch. 50, § 11; 1968, ch. 90, § 48; 1974, ch. 79, Art. VI, § 107(1), (9); 1984, ch. 31, § 1, effective July 13, 1984; 1998, ch. 426, § 254, effective July 15, 1998; 2005, ch. 99, § 309, effective June 20, 2005; 2012, ch. 146, § 71, effective July 12, 2012.

Opinions of Attorney General.

A member of a regional mental health-mental retardation board is an “officer, employee or agent” within the meaning of subsection (1) of this section. OAG 84-216 .

Considering the purpose and nature of this conflict of interest statute, “immediate family,” as used in subdivision (2)(b) of this section, would include father, mother, brother, sister, son and daughter; they are immediately next up, or down, or on the same level as the board member. Cousins or nephews would be farther removed from “immediate.” OAG 84-216 .

If an adult brother or parent of a regional mental health-mental retardation board member owned stock in GMC, the board member may safely vote on the award of a contract to purchase a General Motors vehicle by the board, unless the ownership of General Motors stock was in a very large amount. OAG 84-216 .

Research References and Practice Aids

Cross-References.

Bribery, giving or taking prohibited, KRS 432.350 .

210.120. Officers and employees not to accept outside compensation — Exceptions.

No physician or doctor employed by the Cabinet for Health and Family Services shall receive or accept any compensation for personal services other than that paid by the state, except that the secretary, and other physicians and doctors when so authorized by the secretary, may be employed in, and receive compensation from outside activities such as teaching, research, or community service work, to an extent that will not interfere with the performance of the duties of their office or employment.

History. Enact. Acts 1952, ch. 50, § 12; 1958, ch. 164, § 2; 1974, ch. 74, Art. VI, § 107(1), (9) and (21); 1998, ch. 426, § 255, effective July 15, 1998; 2005, ch. 99, § 310, effective June 20, 2005.

210.130. Religious instruction and ministration.

Religious instruction and ministration for patients of the institutions operated by the Cabinet for Health and Family Services shall be provided.

History. Enact. Acts 1952, ch. 50, § 13; 1974, ch. 74, Art. VI, § 107(1), (9); 1994, ch. 418, § 16, effective July 15, 1994; 1998, ch. 426, § 256, effective July 15, 1998; 2005, ch. 99, § 311, effective June 20, 2005.

210.140. Transfer of patient or inmate to institution operated by different cabinet.

  1. Pursuant to agreement entered into by the heads of the cabinets concerned, a patient or inmate of a state institution operated by one (1) state cabinet may be transferred to a state institution operated by another state cabinet, except that:
    1. An inmate may be transferred from a penal or correctional institution as provided in KRS Chapter 202A or in any regulation promulgated under such chapter, provided that no transfer shall be made to a correctional facility located on the grounds of a state mental hospital;
    2. No patient or inmate may be transferred to a penal or correctional institution unless he has been committed to such institution by judgment of a court; and
    3. No patient or inmate may be transferred to an institution for the mentally ill or individuals with an intellectual disability, except for a period of observation not to exceed sixty (60) days, unless he has been hospitalized in accordance with KRS 202A.051 .
  2. When a patient or inmate hospitalized by court order to one (1) institution is transferred to another institution pursuant to this section, the order of hospitalization shall be deemed to apply to the institution to which transferred.

History. Enact. Acts 1952, ch. 50, § 14; 1960, ch. 64, § 5; 1968, ch. 90, § 49; 1976, ch. 332, § 24; 1980, ch. 295, § 47, effective July 15, 1980; 1982, ch. 445, § 40, effective July 1, 1982; 1986, ch. 428, § 3, effective July 15, 1986; 2012, ch. 146, § 72, effective July 12, 2012.

Legislative Research Commission Note.

This section was amended in 1982 Acts Chapter 445, which contains the following language in Section 45 of that Act: “This Act shall become effective on July 1, 1982.” The Ky. Constitution, in Section 55, requires that a reason be set forth for the emergency. However, no reason is set forth in this Act. The effective date for 1982 Acts with no emergency provision is July 15, 1982.

210.150. Farms and agricultural facilities to be supervised by division of farm management of department of corrections. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 50, § 15; 1966, ch. 255, § 204; 1968, ch. 90, § 50) was repealed by Acts 1970, ch. 278, § 10.

210.160. Acquisition of farm lands — Duties of state university. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 50, § 16; 1976, ch. 74, Art. VI, § 107(1), (9)) was repealed by Acts 1986, ch. 428, § 7, effective July 15, 1986.

210.170. Authority to accept and use grants, gifts, bequests, and devises.

The Cabinet for Health and Family Services may accept money from the federal government, or any of its agencies, under any grant agreement entered into by this state or by the cabinet. Such money may be expended for capital outlay in accordance with the provisions of KRS 56.440 to 56.550 . The cabinet also may accept grants, gifts, bequests, or devises from public or private sources, and use the same for any purpose within the scope of the functions of the cabinet, consistent with the terms of the grant, gift, bequest, or devise.

History. Enact. Acts 1952, ch. 50, § 17; 1974, ch. 74, Art. VI, § 107(1), (9); 1998, ch. 426, § 257, effective July 15, 1998; 2005, ch. 99, § 312, effective June 20, 2005.

210.175. Work training centers. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 276, § 7; 1974, ch. 74, Art. VI, § 57) was repealed by Acts 1986, ch. 428, § 7, effective July 15, 1986.

210.180. Canteens in institutions.

There shall be established and maintained, at each of the institutions operated by the Cabinet for Health and Family Services, a canteen which shall be incorporated and self-supporting. The directors of each canteen shall be appointed by the secretary. All profits from each canteen shall be used exclusively for the benefit of the patients of the institution.

History. Enact. Acts 1952, ch. 50, § 18; 1960, ch. 64, § 6; 1968, ch. 90, § 51; 1974, ch. 74, Art. VI, § 58; 1998, ch. 426, § 258, effective July 15, 1998; 2005, ch. 99, § 313, effective June 20, 2005.

210.190. Utilizing services of workers of other cabinets — Expenses.

The secretary of the Cabinet for Health and Family Services may utilize the services of the workers of the other cabinets, when authorized by the agency heads of these cabinets. The secretary of the Cabinet for Health and Family Services may authorize payment of the actual traveling expenses of the workers so utilized.

History. Enact. Acts 1952, ch. 50, § 19; 1954, ch. 14, § 2; 1968, ch. 90, § 52; 1974, ch. 74, Art. VI, § 59; 1998, ch. 426, § 259, effective July 15, 1998; 2005, ch. 99, § 314, effective June 20, 2005.

210.200. Inspection visits to institutions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 50, § 20; 1974, ch. 74, Art. VI, §§ 60, 107(1), (9), (22)) was repealed by Acts 1986, ch. 428, § 7.

210.210. Boards of visitors for institutions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 50, § 24; 1968, ch. 90, § 53) was repealed by Acts 1986, ch. 428, § 7.

210.220. Correspondence by patients with secretary or attorneys.

No patient of any of the institutions operated by the Cabinet for Health and Family Services shall be denied the right to correspond with an attorney or with the secretary.

History. Enact. Acts 1952, ch. 50, § 21; 1974, ch. 74, Art. VI, § 107(1), (9) and (21); 1998, ch. 426, § 260, effective July 15, 1998; 2005, ch. 99, § 315, effective June 20, 2005.

Research References and Practice Aids

Kentucky Law Journal.

Keen, Civil Commitment of the Mentally Ill in Kentucky, 62 Ky. L.J. 769 (1973-1974).

210.230. Records and forms covering involuntary hospitalization procedures.

The secretary of the Cabinet for Health and Family Services may prescribe appropriate records to be maintained covering the operations of the cabinet and of the institutions operated by it, and covering involuntary hospitalization procedures. Any record forms applicable to involuntary hospitalization procedures shall be furnished to each court having jurisdiction to order hospitalization of mentally ill persons or individuals with an intellectual disability, and the records contemplated by such forms shall thereafter be made by the hospitalizing courts.

History. Enact. Acts 1952, ch. 50, § 22; 1968, ch. 90, § 54; 1974, ch. 74, Art. VI, § 107(1), (8); 1998, ch. 426, § 261, effective July 15, 1998; 2005, ch. 99, § 316, effective June 20, 2005; 2012, ch. 146, § 73, effective July 12, 2012.

Research References and Practice Aids

Kentucky Law Journal.

Comments, Access to Public Documents in Kentucky, 64 Ky. L.J. 165 (1975-76).

210.235. Confidential nature of records — Conditions under which records may be disclosed.

All applications and requests for admission and release, and all certifications, records, and reports of the Cabinet for Health and Family Services which directly or indirectly identify a patient or former patient or a person whose hospitalization has been sought, shall be kept confidential and shall not be disclosed by any person, except insofar as:

  1. The person identified or his guardian, if any, shall consent; or
  2. Disclosure may be necessary to carry out the provisions of the Kentucky Revised Statutes, and the rules and regulations of cabinets and agencies of the Commonwealth of Kentucky; or
  3. Disclosure may be necessary to comply with the official inquiries of the departments and agencies of the United States government; or
  4. Disclosure may be necessary for:
    1. Treatment of the patient by any health care provider involved in the patient’s care;
    2. Treatment, payment, or health care operations under the federal Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, including disclosure between health care providers through an electronic health information exchange or network; or
    3. Participation by health care providers through an electronic health information exchange or network for the purpose of meeting the requirements of the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, and its related federal regulations; or
  5. A court may direct upon its determination that disclosure is necessary for the conduct of proceedings before it and failure to make such disclosure would be contrary to the public interest. Nothing in this section shall preclude the disclosure, upon proper inquiry of the family or friends of a patient, of information as to the medical condition of the patient.

History. Enact. Acts 1954, ch. 12, § 1; 1974, ch. 74, Art. VI, § 107(1), (9); 1998, ch. 426, § 262, effective July 15, 1998; 2005, ch. 99, § 317, effective June 20, 2005; 2014, ch. 12, § 1, effective July 15, 2014.

NOTES TO DECISIONS

Cited:

Humble v. Mountain State Constr. Co., 441 F.2d 816, 1971 U.S. App. LEXIS 10566 (6th Cir. 1971).

Opinions of Attorney General.

This section authorizes the cabinet, upon receipt of an official request from the Director of Selective Service for Kentucky, to disclose information concerning confinement or release of male persons between the ages of 18 and 35. OAG 68-332 .

As subsection (2) of this section provides that records of the department of mental health (Cabinet for Health and Family Services) may be disclosed as necessary to carry out the rules and regulations of state departments and agencies, it would appear that a Legislative Research Commission staff member performing the powers of KRS 7.110 in his official capacity would not violate this section, although care should be taken to restrict examination except where necessary and all information should be kept confidential to the greatest extent possible. OAG 73-100 .

Records of comprehensive care centers which directly or indirectly identify a patient or former patient are confidential and exempt from public inspection. OAG 76-420 .

A parent of a child that is in a preschool training program operated by a comprehensive care center is entitled to a copy of the child’s record, even though the center wishes to keep the records confidential for the protection of its clients. OAG 82-414 .

This section implies that the subject of the records or his guardian shall have control over the records and, consequently, the parent and legal guardian of a child is entitled to a copy of the record. OAG 82-414 .

On the basis of subdivision (1)(j) of KRS 61.878 and this section, and in the absence of a court order authorizing inspection, the state Correctional Psychiatric Center properly denied the newspaper’s request under the Open Records Act for copies of documents of a state mental facility pertaining to the types of tests given to patients and personnel administering and supervising such tests. OAG 87-75 .

Cabinet for Health Service (now Health and Family Service) properly relied on KRS 61.872(6) and 61.878(1)(a), (k) and (l) and various confidentiality provisions found in both state (KRS 209.140 , 210.235 , 214.420 , 214.625 and 620.050 ) and federal law, in denying request for inspection of all nursing facility licensure inspection reports for a two (2) year period where the Cabinet sustained the burden of showing that such request was an unreasonable burden on the Cabinet in describing with specificity the actual volumes of records implicated by the request and where the exemptions to disclosure provided by the state and federal law were mandatory and the difficulty of separation of confidential from releasable information constituted an unreasonable burden. 97-ORD-88.

An agency properly denied an attorney’s request for a copy of a client behavioral plan of a client of the agency, who was involved in an incident with the attorney’s client, on the basis of KRS 61.878(1)(l) and this section since the attorney did not satisfy the requirement of this section that he fall within an excepted category of the statute authorizing disclosure of the records and did not obtain a court order. OAG 00-ORD-84.

210.240. Training schools.

The secretary of the Cabinet for Health and Family Services is authorized to establish training schools within the cabinet or within any of the institutions operated by the cabinet, for the training of necessary personnel for the institutions, or may arrange for the training of employees or prospective employees in any public or private school or institution having available facilities for that purpose. Funds of the cabinet may be used to pay salaries to employees, or to pay tuition and subsistence for employees or prospective employees, while receiving such training. Any employee or prospective employee who is paid a salary, or for whom tuition and subsistence are furnished, while receiving such training, shall be required to enter into a contract, prior to receiving such training, that unless he continues in the employ of the cabinet for at least a period equivalent to the training period, immediately following the completion of such training, he will reimburse to the cabinet the sum paid to or for him by the cabinet during the period of training.

History. Enact. Acts 1952, ch. 50, § 23; 1974, ch. 74, Art. VI, § 107(1), (8); 1998, ch. 426, § 263, effective July 15, 1998; 2005, ch. 99, § 318, effective June 20, 2005.

210.250. Transfer of personnel, properties, funds, records, facilities and appropriations from Division of Hospitals and Mental Hygiene of Department of Welfare. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 50, § 35) was repealed by Acts 1966, ch. 255, § 283.

210.260. Printing for hospital and cabinet. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 11, § 1; 1968, ch. 90, § 55; 1974, ch. 74, Art. VI, § 107(1), (9)) was repealed by Acts 1986, ch. 428, § 7, effective July 15, 1986.

210.265. No fee to be charged for staff certificate or affidavit.

In no case where the certificate or affidavit of state hospital staffs is admitted as evidence in a proceeding to determine whether a person should be hospitalized shall any fee be charged, it being considered a part of the regular state service.

History. Enact. Acts 1944, ch. 29, § 6; 1960, ch. 66, § 5; 1968, ch. 90, § 56.

Compiler’s Notes.

This section was formerly compiled as KRS 203.045 .

210.267. Production by hospital residents.

The residents of state mental hospitals may manufacture and produce for their own use, or for sale, such articles, furniture, clothing, tools, products, and other supplies and engage in such labor or work of construction as may be approved by the Cabinet for Health and Family Services.

History. 216aa-54, 216aa-55: amend. Acts 1962, ch. 161; 1968, ch. 90, § 57; 1974, ch. 74, Art. VI, § 107(1), (9); 1998, ch. 426, § 264, effective July 15, 1998; 2005, ch. 99, § 319, effective June 20, 2005.

210.270. Custodial care of patients with an intellectual disability in private homes, private nursing homes, and private institutions — Transfer or reclassification of patient — Procedure.

  1. The secretary of the Cabinet for Health and Family Services is authorized to designate those private homes, private nursing homes, and private institutions that he deems, after a thorough investigation of the personal and financial qualifications of the owners and tenants, the facilities and management, and the desirability of the location of the homes, suitable for the placement of patients, including individuals with mental illness or an intellectual disability of all ages, outside of the state mental hospitals. The secretary of the Cabinet for Health and Family Services may promulgate, by administrative regulation, standards for the selection and operation of private homes, private nursing homes, and private institutions designated for the placement of patients. No home of an officer or employee of the Cabinet for Health and Family Services or of a member of his immediate family shall be designated for the placement of patients.
  2. Whenever the staff of a state mental hospital has determined that a patient who is not being held on an order arising out of a criminal offense has sufficiently improved and is not dangerous to himself or other persons, and that it would be in the patient’s best interest to be placed outside of the hospital in a private home or private nursing home, the hospital shall so certify and authorize the patient to be transferred to a designated private home or private nursing home for care and custody for a length of time that the hospital deems advisable.
  3. No patient with an intellectual disability lodged in a state institution may have his level of care reclassified nor may he be transferred to a private nursing home or other private institution without first providing ten (10) days’ notice by certified mail, return receipt requested, to the patient’s parents or guardian that a reclassification of the patient’s level of care or a transfer in the place of residence is being considered.
  4. Any parent or guardian of any patient with an intellectual disability lodged in a state institution may participate in any evaluation procedure which may result in a reclassification of the patient’s level of care or in a transfer in the place of residence of the patient. Participation may include the submission by the parents or guardian of medical evidence or any other evidence deemed relevant by the parents or guardian to the possible reclassification or transfer of the patient.
  5. If the decision to reclassify or transfer any patient with an intellectual disability is adverse to the best interests of the patient as expressed by the parents or guardian, they shall be given notice by certified mail, return receipt requested, that they are entitled to a thirty (30) day period from the receipt of such notice to file with the secretary of the Cabinet for Health and Family Services a notice of appeal and application for a hearing. Upon receipt of an application for a hearing, a hearing shall be conducted in accordance with KRS Chapter 13B.
  6. The appeal shall be heard by a three (3) member panel composed of a designated representative of the Cabinet for Health and Family Services, a designated representative of the state institution where the patient with an intellectual disability is presently lodged, and a designated neutral representative appointed by the county judge/executive wherein the institution in question is located. The secretary may appoint a hearing officer to preside over the conduct of the hearing.
  7. Decisions made by the panel may be appealed to the Circuit Court of the county in which the state institution in question is located, to the Circuit Court of the county in which either of the parents or guardians or committee of the patient in question is domiciled at the time of the decision, or to Franklin Circuit Court in accordance with KRS Chapter 13B.
  8. All parents or guardians or committee of a patient with an intellectual disability lodged in a state institution shall be fully apprised by the Cabinet for Health and Family Services of their rights and duties under the provisions of subsections (3), (4), (5), (6), and (7) of this section.
  9. The provisions of KRS 210.700 to 210.760 shall apply to patients transferred to designated private homes and private nursing homes as though the patients were residing in a state mental hospital.

History. Enact. Acts 1954, ch. 13, § 1; 1960, ch. 64, § 7; 1970, ch. 237, § 1; 1974, ch. 74, Art. VI, § 107(1), (8), (9) and (21); 1978, ch. 333, § 1, effective June 17, 1978; 1980, ch. 114, § 39, effective July 15, 1980; 1980, ch. 188, § 201, effective July 15, 1980; 1982, ch. 141, § 69, effective July 1, 1982; 1986, ch. 428, § 4, effective July 15, 1986; 1994, ch. 405, § 70, effective July 15, 1994; 1996, ch. 318, § 100, effective July 15, 1996; 1998, ch. 426, § 265, effective July 15, 1998; 2005, ch. 99, § 320, effective June 20, 2005; 2010, ch. 141, § 18, effective July 15, 2010.

Compiler’s Notes.

This section was amended by § 73 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

NOTES TO DECISIONS

1.Appeal.

Where appeal from decision of panel to place retarded man in foster home was not brought in the time required by this section, the appeal being jurisdictional must fail and reported action of head of department waiving time in which parties were required to appeal could not give court jurisdiction it did not have. Cabinet for Human Resources v. Holbrook, 672 S.W.2d 672, 1984 Ky. App. LEXIS 521 (Ky. Ct. App. 1984).

Failure to file appeal from order of panel placing retarded man in foster home within the time required by this section was fatal since such requirement is mandatory and appeal cannot be perfected until it has been met; moreover since civil rules do not come into effect from decision of administrative agencies until the appeal is perfected the excusable neglect concept of CR 6.02 was not available. Cabinet for Human Resources v. Holbrook, 672 S.W.2d 672, 1984 Ky. App. LEXIS 521 (Ky. Ct. App. 1984).

Cited:

Doe v. Austin, 848 F.2d 1386, 1988 U.S. App. LEXIS 8334 (6th Cir. 1988), cert. denied, Cowherd v. Doe, 488 U.S. 967, 109 S. Ct. 495, 102 L. Ed. 2d 531, 1988 U.S. LEXIS 5327, 57 U.S.L.W. 3376 (1988).

210.271. State hospital patients to be discharged to registered boarding homes only — Quarterly follow-up visits by cabinet.

  1. No patient in an institution for the mentally ill or the intellectually disabled operated by the Cabinet for Health and Family Services shall be discharged to a boarding home as defined in KRS 216B.300 unless the boarding home is registered pursuant to KRS 216B.305 .
  2. The cabinet shall conduct a quarterly follow-up visit, using cabinet personnel or through contract with the Regional Community Mental Health Centers, of all patients of state facilities for mental health or individuals with an intellectual disability that are discharged to boarding homes. Any resident found to have needs that cannot be met by the boarding home shall be referred to the Department for Community Based Services for appropriate placement. Any boarding home suspected of operating as an unlicensed personal care facility or housing residents with needs that cannot be met by the boarding home shall be reported to the Division of Community Health Services for investigation.

History. Enact. Acts 1992, ch. 63, § 4, effective July 14, 1992; 1998, ch. 426, § 266, effective July 15, 1998; 2000, ch. 14, § 42, effective July 14, 2000; 2001, ch. 81, § 4, effective June 21, 2001; 2005, ch. 99, § 321, effective June 20, 2005; 2010, ch. 141, § 19, effective July 15, 2010; 2012, ch. 146, § 74, effective July 12, 2012.

210.272. Purchasing treatment for patients — Recovery of charges. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 278, § 3; 1974, ch. 74, Art. VI, § 107(1), (8), (9) and (21); 1980, ch. 188, § 202, effective July 15, 1980) was repealed by Acts 1982, ch. 247, § 21, effective July 15, 1982.

210.275. Charge for board of patients, how fixed — Refunds. [Repealed.]

Compiler’s Notes.

This section (216aa-36: amend. Acts 1954, ch. 16, § 5; 1968, ch. 90, § 58) was repealed by Acts 1978, ch. 278, § 8, effective June 17, 1978. For present law see KRS 210.720 .

210.280. Hospitalization upon application of responsible person — Release. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 15, § 1; 1960, ch. 64, § 8; 1964, ch. 164, § 3) was repealed by Acts 1968, ch. 90, § 63.

210.285. Powers of cabinet — Forms — Reports — Rules and regulations.

In addition to the specific authority granted by other provisions of KRS Chapters 202A, 202B, and 210, the Cabinet for Health and Family Services shall have authority to prescribe the form of applications, records, reports, and medical certificates provided for under KRS Chapters 202A, 202B, and 210 and the information required to be contained therein; to require reports from the head of any hospital relating to the admission, examination, diagnosis, release, or discharge of any patient; to visit hospitals regularly to review the hospitalization procedures of all new patients admitted between visits; to investigate by personal visit complaints made by any persons on behalf of any patients or by any patients themselves; and to adopt such rules and regulations not inconsistent with the provisions of KRS Chapters 202A, 202B, and 210 as it may find to be reasonably necessary for proper and efficient hospitalization of the mentally ill.

History. Enact. Acts 1968, ch. 90, § 59; 1974, ch. 74, Art. VI, § 107(1), (9); 1976, ch. 332, § 25; 1982, ch. 141, § 38, effective July 1, 1982; 1998, ch. 426, § 267, effective July 15, 1998; 2005, ch. 99, § 322, effective June 20, 2005.

Compiler’s Notes.

This section was amended by § 39 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

210.290. Cabinet may act as fiduciary for certain disabled or partially disabled adult residents — Duties — Guardianship trust fund — Annual report — Powers.

  1. The Cabinet for Health and Family Services may be appointed and act as executor, administrator, guardian, limited guardian, conservator, or limited conservator as provided in this section. In this capacity the cabinet may act as a fiduciary and transact business in the same manner as any individual and for fiduciary purposes may sue and be sued in any of the courts of the state. Bond shall not be required of the cabinet.
    1. Whenever a resident of the state is adjudged partially disabled or disabled and no other suitable person or entity is available and willing to act as limited guardian, guardian, limited conservator, or conservator, the cabinet may be appointed as the resident’s limited guardian, guardian, limited conservator, or conservator. As used in this paragraph, “resident of the state” means an individual who has a permanent, full-time residence in Kentucky prior to the filing of a petition for or appointment of a limited guardian, guardian, limited conservator, or conservator for at least the previous six (6) months that is not a hospital, treatment facility, correctional facility, or long-term care facility, and who is a citizen or permanent resident of the United States. (2) (a) Whenever a resident of the state is adjudged partially disabled or disabled and no other suitable person or entity is available and willing to act as limited guardian, guardian, limited conservator, or conservator, the cabinet may be appointed as the resident’s limited guardian, guardian, limited conservator, or conservator. As used in this paragraph, “resident of the state” means an individual who has a permanent, full-time residence in Kentucky prior to the filing of a petition for or appointment of a limited guardian, guardian, limited conservator, or conservator for at least the previous six (6) months that is not a hospital, treatment facility, correctional facility, or long-term care facility, and who is a citizen or permanent resident of the United States.
    2. Notwithstanding paragraph (a) of this subsection, except upon written order of the court in exceptional circumstances, the cabinet shall not be appointed as a limited guardian, guardian, limited conservator, or conservator of a partially disabled or disabled person when the person:
      1. Has been convicted of, pled guilty to, or entered an Alford plea for a sex crime as defined in KRS 17.500 or an offense that would classify the person as a violent offender under KRS 439.3401 ; or
      2. Is not alive or cannot be physically located.
    3. Before appointing the cabinet, consideration shall be given to the average caseload of each field social worker.
    4. The cabinet, acting through its designated officer, may apply to the District Court of the county in which the adjudication is made for appointment as limited guardian, guardian, limited conservator, or conservator for a partially disabled or disabled person who meets the requirements of this subsection.
  2. When the cabinet is appointed as a limited guardian, guardian, limited conservator, or conservator of a partially disabled or disabled person, the cabinet shall not:
    1. Assume physical custody of the person;
    2. Be assigned as the person’s caregiver or custodian; or
    3. Become personally liable for the person’s expenses or placement, or to third parties for the person’s actions. However, the cabinet shall procure resources and services for which the person is eligible when necessary and available.
    1. Except as provided in paragraph (b) of this subsection, upon the death of a person for whom the cabinet has been appointed guardian or conservator, or upon the death of a person who has been committed to the cabinet leaving an estate and having no relatives at the time residing within the state, the cabinet may apply for appointment as administrator and upon appointment shall close the administration of the estate. (4) (a) Except as provided in paragraph (b) of this subsection, upon the death of a person for whom the cabinet has been appointed guardian or conservator, or upon the death of a person who has been committed to the cabinet leaving an estate and having no relatives at the time residing within the state, the cabinet may apply for appointment as administrator and upon appointment shall close the administration of the estate.
    2. If a person for whom the cabinet has been appointed guardian or conservator dies with less than ten thousand dollars ($10,000) of personal property or money, the cabinet shall not be required to apply for appointment as administrator. However, prior to the release of funds to the person’s estate, the cabinet shall ensure all outstanding bills related to living expenses, reasonable funeral expenses when not prepaid, and estate recovery are paid. Any funds that remain after those expenses are paid may be released first to other creditors and then to the relatives of the ward. The cabinet shall establish an online registry to provide public notice of remaining funds to other creditors and relatives of the ward, and the process for claiming those funds. Notwithstanding KRS 393.020 , if the funds of a ward are less than ten thousand dollars ($10,000) and remain unclaimed after the expiration of one (1) year from the date public notice is made, the funds shall escheat to the guardianship trust fund established in subsection (5) of this section.
  3. There is created in the cabinet a trust and agency fund to be known as the guardianship trust fund. The trust shall consist of funds of deceased wards that remain after living, funeral, and estate recovery expenses are paid and that are unclaimed for one (1) year after public notice is made. The trust may also receive donations or grant funds for the support of indigent wards. Notwithstanding KRS 45.229 , any unused trust balance at the close of the fiscal year shall not lapse but shall be carried forward to the next fiscal year. Any interest earnings of the trust shall become part of the trust and shall not lapse. The trust may make investments as authorized by subsection (7) of this section and may use funds in the trust for the benefit of indigent wards for expenses including:
    1. Temporary housing costs;
    2. Medical supplies or transportation services not covered by Medicaid;
    3. Emergency personal needs, including clothing or food;
    4. Burial expenses if no county funds are available in the county of death; and
    5. Expenses necessary to ensure health, safety, and well-being when no other funds are available or accessible in a timely manner.
  4. The cabinet shall make available an annual report of income and expenditures from the guardianship trust fund. The trust shall be subject to an independent audit at the request of the General Assembly or the State Auditor.
  5. The cabinet may invest funds held as fiduciary in bonds or other securities guaranteed by the United States, and may sell or exchange such securities in its discretion. In addition, the cabinet may establish or place funds held as fiduciary in a trust.
  6. The cabinet shall receive such fees for its fiduciary services as provided by law. These fees shall be placed in a trust and agency account, from which may be drawn expenses for filing fees, court costs, and other expenses incurred in the administration of estates. Claims of the cabinet against the estates shall be considered in the same manner as any other claim.
  7. An officer designated by the secretary may act as legal counsel for any patient in a state mental hospital or institution against whom a suit of any nature has been filed, without being appointed as guardian, limited guardian, conservator, or limited conservator.
  8. Patients hospitalized pursuant to KRS Chapters 202A and 202B who are not adjudged disabled or partially disabled may authorize the Cabinet for Health and Family Services to handle personal funds received by them at the hospital in the same manner as prescribed in subsections (7) and (8) of this section.

History. Enact. Acts 1960, ch. 64, § 9; 1970, ch. 278, § 2; 1974, ch. 74, Art. VI, § 107(1), (9); 1976, ch. 332, § 26; 1976 (Ex. Sess.), ch. 14, § 201, effective January 2, 1978; 1978, ch. 290, § 1, effective June 17, 1978; 1982, ch. 141, § 70, effective July 1, 1982; 1998, ch. 426, § 268, effective July 15, 1998; 2005, ch. 99, § 323, effective June 20, 2005; 2018 ch. 13, § 1, effective July 14, 2018; 2019 ch. 129, § 1, effective June 27, 2019.

Compiler’s Notes.

This section was amended by § 74 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

NOTES TO DECISIONS

1.Appointment.

Under the language of this section and KRS 387.600(1), the Cabinet for Human Resources (now Health and Family Services) can be forced to accept an appointment as limited guardian or conservator if the district court finds that there is no other available and willing individual or entity to assume such role. Commonwealth v. Cabinet for Human Resources, 686 S.W.2d 465, 1984 Ky. App. LEXIS 629 (Ky. Ct. App. 1984).

In a situation in which no one can be found to act as a limited guardian or conservator, the Cabinet for Human Resources (now Health and Family Services) can be appointed as a matter of last resort, regardless of whether it applied for or sought such appointment. Commonwealth v. Cabinet for Human Resources, 686 S.W.2d 465, 1984 Ky. App. LEXIS 629 (Ky. Ct. App. 1984).

Opinions of Attorney General.

This section has expressly provided for the manner in which patient’s funds are to be handled and therefore the usual banking procedure established under KRS 41.070 does not apply. OAG 72-597 .

Research References and Practice Aids

Cross-References.

Executors and administrators, committees, guardians, qualifications, KRS 395.005 ; appointment, KRS 387.025 , 387.040 , 395.015 , 395.040 .

210.300. Designation of hospital districts.

The secretary of the Cabinet for Health and Family Services shall prescribe from time to time, by regulations, for the designation of hospital districts, for the purpose of determining to which of the state institutions for the mentally ill the persons admitted from each county shall initially be sent.

History. 216aa-83: amend. Acts 1952, ch. 50, § 28; 1960, ch. 67, § 17; 1968, ch. 90, § 64(3); 1974, ch. 74, Art. VI, § 107(1), (8); 1998, ch. 426, § 269, effective July 15, 1998; 2005, ch. 99, § 324, effective June 20, 2005.

Compiler’s Notes.

This section was formerly compiled as KRS 202.170 .

210.310. Support of private patients — Rate of charge. [Repealed.]

Compiler’s Notes.

This section (216aa-38: amend. Acts 1964, ch. 164, § 2; 1968, ch. 90, § 64(3)) was repealed by Acts 1978, ch. 278, § 8. For present law see KRS 210.700 to 210.760 .

210.315. Liability of parents for treatment of child — Age age which liability terminates — “Long-term patient” defined. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 86, § 1; 1974, ch. 74, Art. VI, § 107(21); 1974, ch. 205, § 1) was repealed by Acts 1978, ch. 278, § 8. For present law see KRS 210.700 to 210.760 .

210.320. Recovery for support of patients. [Repealed.]

Compiler’s Notes.

This section (216aa-39: amend. Acts 1968, ch. 90, § 64(3); 1972, ch. 86, § 2) was repealed by Acts 1978, ch. 278, § 8. For present law see KRS 210.700 to 210.760 .

210.325. Limit of parents’ liability for treatment of child. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 86, § 3; 1974, ch. 74, Art. VI, § 107(9)) was repealed by Acts 1978, ch. 278, § 8. For present law see KRS 210.700 to 210.760 .

210.330. Employment of attorney — Cost of litigation — Limitation of action.

  1. The cabinet may employ counsel, upon the advice and approval of the Attorney General, to institute or defend such actions or proceedings as it deems necessary or proper to enforce the payment or reimbursement for board and maintenance of patients. In case of failure of suits, the expense thereof shall be certified by the secretary of the Finance and Administration Cabinet which shall provide for its payment out of the funds appropriated for the use of the cabinet.
  2. The statute of limitation providing the time in which actions for such recovery may be instituted shall not run against recovery provided for in this chapter until from and after the time at which the estate is acquired.

History. 216aa-40: amend. Acts 1966, ch. 255, § 195; 1968, ch. 90, § 64(3); 1974, ch. 74, Arts. II, § 9(1), VI, § 107(9), (21).

Compiler’s Notes.

This section was formerly compiled as KRS 203.110 .

NOTES TO DECISIONS

1.Constitutionality.

Where Department of Welfare (now Cabinet for Health and Family Services) filed claim for maintenance and board of patient in state hospital, provision of subsection (2) of this section was applicable and not unconstitutional. Department of Welfare v. Fox, 240 S.W.2d 65, 1951 Ky. LEXIS 944 ( Ky. 1951 ).

2.Limitations on Action.

Five-year limitation was applicable to action for support of person confined in state hospital. State was entitled to recover only amount due inmate under trust fund during last five years, said amount being less than rate fixed for support of inmates of institutions. Department of Public Welfare v. Meek, 264 Ky. 771 , 95 S.W.2d 599, 1936 Ky. LEXIS 401 ( Ky. 1936 ).

Where cabinet filed claim for maintenance and board of patient in state hospital, the five-year statute of limitations would not begin to run against cabinet until acquisition by patient of an estate which could be subject to debt. Department of Welfare v. Fox, 240 S.W.2d 65, 1951 Ky. LEXIS 944 ( Ky. 1951 ).

Research References and Practice Aids

Cross-References.

Attorney General to represent state agencies, KRS 15.020 .

Attorneys for state agencies, employment of, KRS 12.210 .

210.340. Extradition of nonresident patient.

Any nonresident who has been committed to a mental institution in another state and who escapes therefrom and is found in this state may be apprehended upon notice from the other state and returned thereto by personnel of the cabinet at the cabinet’s expense.

History. Enact. Acts 1960, ch. 66, § 6; 1968, ch. 90, § 64(3).

Compiler’s Notes.

This section was formerly compiled as KRS 203.155 .

NOTES TO DECISIONS

1.Issue of Incompetency.

Where the committee of the alleged incompetent failed to meet the issue raised by the alleged incompetent concerning whether she was then mentally incompetent, a 1956 New York judgment of incompetency was not conclusive in a suit filed in Kentucky to compel the alleged incompetent to return to an institution in New York. Delehanty v. Kahn, 446 S.W.2d 553, 1969 Ky. LEXIS 121 ( Ky. 1969 ).

Cited:

Delehanty v. Kahn, 446 S.W.2d 553, 1969 Ky. LEXIS 121 ( Ky. 1969 ).

210.350. Return of nonresidents — Expense.

If an order is issued by a judge committing to a state institution a person who has not acquired a legal residence in this state, the cabinet shall return such person, either before or after his admission to the institution, to the country or state to which he belongs and for such purposes may expend so much of the money appropriated to it as is necessary.

History. 216aa-45: amend. Acts 1960, ch. 66, § 8; 1968, ch. 90, § 64(3).

Compiler’s Notes.

This section was formerly compiled as KRS 203.160 .

210.360. Mental examination of persistent felony offenders. [Repealed.]

Compiler’s Notes.

This section (263b-17: amend. Acts 1960, ch. 66, § 11; 1968, ch. 90, § 64(3); 1974, ch. 74, Art. VI, § 107(1), (8) and (21); 1986, ch. 428, § 5, effective July 15, 1986; 1988, ch. 283, § 7, effective July 15, 1988; 1998, ch. 426, § 270, effective July 15, 1998; 2005, ch. 99, § 325, effective June 20, 2005) was repealed by Acts 2010, ch. 45, § 1, effective July 15, 2010.

This section was formerly compiled as KRS 203.340 .

NOTES TO DECISIONS

1.Purpose.

The purpose of this section is to enable the Commonwealth to obtain medical advice as to the mental competency of the accused and thus to determine, before incurring the expense of a trial, whether the accused should be committed to a mental hospital rather than a penal institution. Jones v. Davis, 233 F. Supp. 949, U.S. Dist. LEXIS 7431 (W.D. Ky.), aff'd, 336 F.2d 594, 1964 U.S. App. LEXIS 4299 (6th Cir. Ky. 1964 ).

The purpose of this section is to permit the department (now cabinet) to determine whether one indicted under the habitual criminal act should be a charge of that department of the state in one of its penal institutions or in one of its mental hospitals. Harrod v. Commonwealth, 311 Ky. 810 , 226 S.W.2d 4, 1950 Ky. LEXIS 557 ( Ky. 1950 ), cert. denied, 339 U.S. 915, 70 S. Ct. 562, 94 L. Ed. 1341, 1950 U.S. LEXIS 2288 (U.S. 1950).

The purpose of this section was found to be to determine whether accused should be sent to one of the state’s penal institutions or to one of its mental hospitals, the Court of Appeals expressly declared: “It is manifest that the prisoner acquires no right to such an examination under the statute itself.” Etherton v. Commonwealth, 379 S.W.2d 730, 1964 Ky. LEXIS 255 ( Ky. 1964 ).

2.Construction.

This section is not mandatory. Copeland v. Commonwealth, 397 S.W.2d 59, 1965 Ky. LEXIS 60 ( Ky. 1965 ).

3.Substantial Compliance.

When the defendant does receive a psychiatric examination before final judgment is entered and it reveals nothing that could have been of any consequence to his trial or defense, there has been a substantial compliance with this section. McIntosh v. Commonwealth, 368 S.W.2d 331, 1963 Ky. LEXIS 47 ( Ky. 1963 ).

4.Noncompliance.

Failure to comply with this section does not void the judgment. Mercer v. Commonwealth, 346 S.W.2d 761, 1961 Ky. LEXIS 335 ( Ky. 1961 ), cert. denied, 369 U.S. 822, 82 S. Ct. 834, 7 L. Ed. 2d 787, 1962 U.S. LEXIS 1649 (U.S. 1962).

Noncompliance with this section does not void a conviction. Davenport v. Commonwealth, 390 S.W.2d 662, 1965 Ky. LEXIS 367 ( Ky. 1965 ), cert. denied, 383 U.S. 970, 86 S. Ct. 1278, 16 L. Ed. 2d 310, 1966 U.S. LEXIS 1940 (U.S. 1966).

The failure to give the psychiatric examination provided under this section does not render a judgment of conviction void, and it is not a ground for setting aside a judgment under RCr 11.42. Capps v. Commonwealth, 465 S.W.2d 42, 1971 Ky. LEXIS 424 ( Ky. 1971 ).

5.Failure to Request.

Where the defendant, though indigent, was represented by counsel prior to and at his trial and neither the defendant nor his counsel made request for a mental examination, which was refused, and the issue was first raised on his second motion for post-conviction relief, no discriminatory denial of a mental examination to an indigent defendant was shown. Brister v. Commonwealth, 439 S.W.2d 940, 1969 Ky. LEXIS 379 ( Ky. 1969 ).

Cited:

Jones v. Davis, 336 F.2d 594, 1964 U.S. App. LEXIS 4299 (6th Cir. 1964); Lairson v. Commonwealth, 388 S.W.2d 592, 1965 Ky. LEXIS 440 ( Ky. 1965 ); Jones v. Commonwealth, 401 S.W.2d 68, 1966 Ky. LEXIS 404 ( Ky. 1966 ); Hack v. Commonwealth, 449 S.W.2d 762, 1970 Ky. LEXIS 475 ( Ky. 1970 ).

210.365. Crisis intervention team (CIT) training — Curriculum — Individual and aggregate reports — Telephonic behavioral health jail triage system. [Effective until June 25, 2021]

  1. As used in this section:
    1. “Crisis intervention team (CIT) training” means a forty (40) hour training curriculum based on the Memphis Police Department Crisis Intervention Team model of best practices for law enforcement intervention with persons who may have a mental illness, substance use disorder, an intellectual disability, developmental disability, or dual diagnosis that meets the requirements of subsections (2) to (5) of this section and is approved by the Kentucky Law Enforcement Council;
    2. “Department” means the Department for Behavioral Health, Developmental and Intellectual Disabilities;
    3. “Prisoner” has the same meaning as set out in KRS 441.005 ; and
    4. “Qualified mental health professional” has the same meaning as set out in KRS 202A.011 .
  2. The department shall, in collaboration with the Justice and Public Safety Cabinet, the regional community boards for mental health or individuals with an intellectual disability, and representatives of the Kentucky statewide affiliate of the National Alliance on Mental Illness, coordinate the development of CIT training designed to train law enforcement officers to:
    1. Effectively respond to persons who may have a mental illness, substance use disorder, intellectual disability, developmental disability, or dual diagnosis;
    2. Reduce injuries to officers and citizens;
    3. Reduce inappropriate incarceration;
    4. Reduce liability; and
    5. Improve risk management practices for law enforcement agencies.
  3. The CIT training shall include but not be limited to:
    1. An introduction to crisis intervention teams;
    2. Identification and recognition of the different types of mental illnesses, substance use disorders, intellectual disabilities, developmental disabilities, and dual diagnoses;
    3. Interviewing and assessing a person who may have a mental illness, substance use disorder, intellectual disability, developmental disability, or dual diagnosis;
    4. Identification and common effects of psychotropic medications;
    5. Suicide prevention techniques;
    6. Community resources and options for treatment;
    7. Voluntary and involuntary processes for hospitalization of a person with a mental illness, substance use disorder, intellectual disability, developmental disability, or dual diagnosis; and
    8. Hostage or other negotiations with a person with a mental illness, intellectual disability, substance use disorder, developmental disability, or dual diagnosis.
  4. The curriculum shall be presented by a team composed of, at a minimum:
    1. A law enforcement training instructor who has completed a forty (40) hour CIT training course and a CIT training instructor’s course which has been approved by the Kentucky Law Enforcement Council, and at least forty (40) hours of direct experience working with a CIT;
    2. A representative from the local community board for mental health or individuals with an intellectual disability serving the region where CIT training is conducted;
    3. A consumer of mental health services; and
    4. A representative of the Kentucky statewide affiliate of the National Alliance on Mental Illness.
    1. The department shall submit the CIT training curriculum and the names of available instructors approved by the department to conduct or assist in the delivery of CIT training to the Kentucky Law Enforcement Council no later than July 1, 2007. (5) (a) The department shall submit the CIT training curriculum and the names of available instructors approved by the department to conduct or assist in the delivery of CIT training to the Kentucky Law Enforcement Council no later than July 1, 2007.
    2. The Kentucky Law Enforcement Council shall notify the department of approval or disapproval of the CIT training curriculum and trainers within thirty (30) days of submission of the curriculum and the names of instructors.
    3. The Kentucky Law Enforcement Council may waive instructor requirements for non-law enforcement trainers whose names are submitted by the department.
    4. If the curriculum or trainers are not approved, the department shall have an opportunity to revise and resubmit the curriculum and to submit additional names of instructors if necessary.
  5. If the curriculum is approved, the Kentucky Law Enforcement Council shall:
    1. Notify the Department of Kentucky State Police and all law enforcement agencies employing peace officers certified under KRS 15.380 to 15.404 of the availability of the CIT training; and
    2. Notify all instructors and entities approved for law enforcement training under KRS 15.330 of the availability of the CIT training.
  6. Any law enforcement training entity approved by the Kentucky Law Enforcement Council may use the CIT training model and curriculum in law enforcement in-service training as specified by subsection (1) of this section that is consistent with the Memphis CIT national model for best practices.
  7. No later than one (1) year after June 26, 2007, the department shall submit to the Kentucky Law Enforcement Council a CIT training instructors’ curriculum and the names of available instructors approved by the department to conduct or assist in the delivery of CIT training instructors’ training. Additional instructors may be submitted on a schedule determined by the Kentucky Law Enforcement Council.
  8. All CIT-trained law enforcement officers shall report to his or her agency on forms provided with the CIT curriculum on encounters with persons with mental illness, substance use disorders, intellectual disabilities, developmental disabilities, and dual diagnoses. The law enforcement agency shall aggregate reports received and submit nonidentifying information to the department on a monthly basis. Except for information pertaining to the number of law enforcement agencies participating in CIT training, the reports to the department shall include the information specified in subsection (10) of this section.
  9. The department shall aggregate all reports from law enforcement agencies under subsection (9) of this section and submit nonidentifying statewide information to the Justice and Public Safety Cabinet, the Criminal Justice Council, the Cabinet for Health and Family Services, and the Interim Joint Committee on Health and Welfare by December 1, 2008, and annually thereafter. The report shall include but not be limited to:
    1. The number of law enforcement officers trained per agency;
    2. Law enforcement responses to persons with mental illness, substance use disorders, intellectual disabilities, developmental disabilities, and dual diagnoses;
    3. Incidents of harm to the law enforcement officer or to the citizen;
    4. The number of times physical force was required and the type of physical force used; and
    5. The outcome of the encounters that may include but not be limited to incarceration or hospitalization.
  10. To implement the requirements of subsections (2) to (5) and (8) to (10) of this section, the department may use public or private funds as available and may develop a contract with a nonprofit entity that is a Kentucky statewide mental health advocacy organization that has a minimum of five (5) years of experience in implementation of the CIT training program in Kentucky.
  11. The Cabinet for Health and Family Services shall create a telephonic behavioral health jail triage system to screen prisoners for mental health risk issues, including suicide risk. The triage system shall be designed to give the facility receiving and housing the prisoner an assessment of his or her mental health risk, with the assessment corresponding to recommended protocols for housing, supervision, and care which are designed to mitigate the mental health risks identified by the system. The triage system shall consist of:
    1. A screening instrument which the personnel of a facility receiving a prisoner shall utilize to assess inmates for mental health, suicide, intellectual disabilities, and acquired brain injury risk factors; and
    2. A continuously available toll-free telephonic triage hotline staffed by a qualified mental health professional which the screening personnel may utilize if the screening instrument indicates an increased mental health risk for the assessed prisoner.
  12. In creating and maintaining the telephonic behavioral health jail triage system, the cabinet shall consult with:
    1. The Department of Corrections;
    2. The Kentucky Jailers Association; and
    3. The regional community services programs for mental health or individuals with an intellectual disability created under KRS 210.370 to 210.460 .
  13. The cabinet may delegate all or a portion of the operational responsibility for the triage system to the regional community services programs for mental health or individuals with an intellectual disability created under KRS 210.370 to 210.460 if the regional program agrees and the cabinet remains responsible for the costs of delegated functions.
  14. The cabinet shall design into the implemented triage system the ability to screen and assess prisoners who communicate other than in English or who communicate other than through voice.
  15. The cost of operating the telephonic behavioral health jail triage system shall be borne by the cabinet.
  16. Records generated under this section shall be treated in the same manner and with the same degree of confidentiality as other medical records of the prisoner.
  17. Unless the prisoner is provided with an attorney during the screening and assessment, any statement made by the prisoner in the course of the screening or assessment shall not be admissible in a criminal trial of the prisoner, unless the trial is for a crime committed during the screening and assessment.
  18. The cabinet may, after consultation with those entities set out in subsection (13) of this section, promulgate administrative regulations for the operation of the telephonic behavioral health jail triage system and the establishment of its recommended protocols for prisoner housing, supervision, and care.

History. Enact. Acts 2004, ch. 137, § 2, effective July 13, 2004; 2005, ch. 99, § 326, effective June 20, 2005; 2007, ch. 49, § 1, effective June 26, 2007; 2012, ch. 146, § 75, effective July 12, 2012; 2012, ch. 158, § 37, effective July 12, 2012; 2019 ch. 128, § 3, effective June 27, 2019.

Legislative Research Commission Note.

(6/26/2007). Under the authority of KRS 7.136(1), the Reviser of Statutes in codification has changed the internal numbering system of subsection (2) of this statute. The meaning of the text was not altered.

(6/26/2007). 2007 Ky. Acts ch. 85, sec. 335, instructs the Reviser of Statutes to correct statutory references to agencies and officers whose names have been changed in the Act, as it confirms the reorganization of the Justice and Public Safety Cabinet. Such a correction has been made in this section.

210.365. Crisis intervention team (CIT) training — Curriculum — Individual and aggregate reports — Telephonic behavioral health jail triage system. [Effective June 25, 2021]

  1. As used in this section:
    1. “Commission” means the Kentucky Fire Commission;
    2. “Crisis intervention team (CIT) training” means a forty (40) hour training curriculum based on the Memphis Police Department Crisis Intervention Team model of best practices for law enforcement intervention with persons who may have a mental illness, substance use disorder, an intellectual disability, developmental disability, or dual diagnosis that meets the requirements of subsections (2) to (5) of this section and is approved by the commission and the Kentucky Law Enforcement Council;
    3. “Department” means the Department for Behavioral Health, Developmental and Intellectual Disabilities;
    4. “Prisoner” has the same meaning as set out in KRS 441.005 ; and
    5. “Qualified mental health professional” has the same meaning as set out in KRS 202A.011 .
  2. The department shall, in collaboration with the commission, Justice and Public Safety Cabinet, the regional community boards for mental health or individuals with an intellectual disability, and representatives of the Kentucky statewide affiliate of the National Alliance on Mental Illness, coordinate the development of CIT training designed to train firefighters and law enforcement officers to:
    1. Effectively respond to persons who may have a mental illness, substance use disorder, intellectual disability, developmental disability, or dual diagnosis;
    2. Reduce injuries to firefighters, officers, and citizens;
    3. Reduce inappropriate incarceration;
    4. Reduce liability; and
    5. Improve risk management practices for firefighter and law enforcement agencies.
  3. The CIT training shall include but not be limited to:
    1. An introduction to crisis intervention teams;
    2. Identification and recognition of the different types of mental illnesses, substance use disorders, intellectual disabilities, developmental disabilities, and dual diagnoses;
    3. Interviewing and assessing a person who may have a mental illness, substance use disorder, intellectual disability, developmental disability, or dual diagnosis;
    4. Identification and common effects of psychotropic medications;
    5. Suicide prevention techniques;
    6. Community resources and options for treatment;
    7. Voluntary and involuntary processes for hospitalization of a person with a mental illness, substance use disorder, intellectual disability, developmental disability, or dual diagnosis; and
    8. Hostage or other negotiations with a person with a mental illness, intellectual disability, substance use disorder, developmental disability, or dual diagnosis.
  4. The curriculum shall be presented by a team composed of, at a minimum:
    1. A firefighter, firefighter personnel training instructor, or a law enforcement training instructor who has completed a forty (40) hour CIT training course and a CIT training instructor’s course which has been approved by the commission or the Kentucky Law Enforcement Council, and at least forty (40) hours of direct experience working with a CIT;
    2. A representative from the local community board for mental health or individuals with an intellectual disability serving the region where CIT training is conducted;
    3. A consumer of mental health services; and
    4. A representative of the Kentucky statewide affiliate of the National Alliance on Mental Illness.
    1. The department shall submit the CIT training curriculum and the names of available instructors approved by the department to conduct or assist in the delivery of CIT training to the commission or Kentucky Law Enforcement Council no later than July 1, 2021. (5) (a) The department shall submit the CIT training curriculum and the names of available instructors approved by the department to conduct or assist in the delivery of CIT training to the commission or Kentucky Law Enforcement Council no later than July 1, 2021.
    2. The commission or Kentucky Law Enforcement Council shall notify the department of approval or disapproval of the CIT training curriculum and trainers within thirty (30) days of submission of the curriculum and the names of instructors.
    3. The commission or Kentucky Law Enforcement Council may waive instructor requirements for non-firefighter trainers or non-law enforcement trainers whose names are submitted by the department.
    4. If the curriculum or trainers are not approved, the department shall have an opportunity to revise and resubmit the curriculum and to submit additional names of instructors if necessary.
  5. If the curriculum is approved, the commission or Kentucky Law Enforcement Council shall:
    1. Notify all agencies employing firefighters, as defined in KRS 61.315 (1)(b), of the availability of the CIT training;
    2. Notify the Department of Kentucky State Police and all law enforcement agencies employing peace officers certified under KRS 15.380 to 15.404 of the availability of the CIT training; and
    3. Notify all instructors and entities approved for firefighter or law enforcement training under KRS 15.330 and 95A.040 of the availability of the CIT training.
  6. Any firefighter training entity or law enforcement training entity approved by the commission or Kentucky Law Enforcement Council may use the CIT training model and curriculum in firefighter or law enforcement in-service training as specified by subsection (1) of this section that is consistent with the Memphis CIT national model for best practices.
  7. No later than one (1) year after June 26, 2021, the department shall submit to the commission and Kentucky Law Enforcement Council a CIT training instructors’ curriculum and the names of available instructors approved by the department to conduct or assist in the delivery of CIT training instructors’ training. Additional instructors may be submitted on a schedule determined by the commission or Kentucky Law Enforcement Council.
  8. All CIT-trained firefighters and law enforcement officers shall report to his or her agency on forms provided with the CIT curriculum on encounters with persons with mental illness, substance use disorders, intellectual disabilities, developmental disabilities, and dual diagnoses. The firefighter and law enforcement agencies shall aggregate reports received and submit nonidentifying information to the department on a monthly basis. Except for information pertaining to the number of firefighter or law enforcement agencies participating in CIT training, the reports to the department shall include the information specified in subsection (10) of this section.
  9. The department shall aggregate all reports from firefighter or law enforcement agencies under subsection (9) of this section and submit nonidentifying statewide information to the Justice and Public Safety Cabinet, the Criminal Justice Council, the Cabinet for Health and Family Services, and the Interim Joint Committee on Health and Welfare by December 1, 2008, and annually thereafter. The report shall include but not be limited to:
    1. The number of firefighters or law enforcement officers trained per agency;
    2. Firefighter or law enforcement responses to persons with mental illness, substance use disorders, intellectual disabilities, developmental disabilities, and dual diagnoses;
    3. Incidents of harm to the firefighter or law enforcement officer or to the citizen;
    4. The number of times physical force was required and the type of physical force used; and
    5. The outcome of the encounters that may include but not be limited to incarceration or hospitalization.
  10. To implement the requirements of subsections (2) to (5) and (8) to (10) of this section, the department may use public or private funds as available and may develop a contract with a nonprofit entity that is a Kentucky statewide mental health advocacy organization that has a minimum of five (5) years of experience in implementation of the CIT training program in Kentucky.
  11. The Cabinet for Health and Family Services shall create a telephonic behavioral health jail triage system to screen prisoners for mental health risk issues, including suicide risk. The triage system shall be designed to give the facility receiving and housing the prisoner an assessment of his or her mental health risk, with the assessment corresponding to recommended protocols for housing, supervision, and care which are designed to mitigate the mental health risks identified by the system. The triage system shall consist of:
    1. A screening instrument which the personnel of a facility receiving a prisoner shall utilize to assess inmates for mental health, suicide, intellectual disabilities, and acquired brain injury risk factors; and
    2. A continuously available toll-free telephonic triage hotline staffed by a qualified mental health professional which the screening personnel may utilize if the screening instrument indicates an increased mental health risk for the assessed prisoner.
  12. In creating and maintaining the telephonic behavioral health jail triage system, the cabinet shall consult with:
    1. The Department of Corrections;
    2. The Kentucky Jailers Association; and
    3. The regional community services programs for mental health or individuals with an intellectual disability created under KRS 210.370 to 210.460 .
  13. The cabinet may delegate all or a portion of the operational responsibility for the triage system to the regional community services programs for mental health or individuals with an intellectual disability created under KRS 210.370 to 210.460 if the regional program agrees and the cabinet remains responsible for the costs of delegated functions.
  14. The cabinet shall design into the implemented triage system the ability to screen and assess prisoners who communicate other than in English or who communicate other than through voice.
  15. The cost of operating the telephonic behavioral health jail triage system shall be borne by the cabinet.
  16. Records generated under this section shall be treated in the same manner and with the same degree of confidentiality as other medical records of the prisoner.
  17. Unless the prisoner is provided with an attorney during the screening and assessment, any statement made by the prisoner in the course of the screening or assessment shall not be admissible in a criminal trial of the prisoner, unless the trial is for a crime committed during the screening and assessment.
  18. The cabinet may, after consultation with those entities set out in subsection (13) of this section, promulgate administrative regulations for the operation of the telephonic behavioral health jail triage system and the establishment of its recommended protocols for prisoner housing, supervision, and care.

HISTORY: Enact. Acts 2004, ch. 137, § 2, effective July 13, 2004; 2005, ch. 99, § 326, effective June 20, 2005; 2007, ch. 49, § 1, effective June 26, 2007; 2012, ch. 146, § 75, effective July 12, 2012; 2012, ch. 158, § 37, effective July 12, 2012; 2019 ch. 128, § 3, effective June 27, 2019; 2021 ch. 114, § 1, effective June 25, 2021.

210.366. Training program in suicide assessment, treatment, and management — Administrative regulations.

  1. As used in this section:
    1. “Board” means the Kentucky Board of Social Work, Kentucky Board of Licensure of Marriage and Family Therapists, Kentucky Board of Licensed Professional Counselors, Kentucky Board of Licensure for Pastoral Counselors, Kentucky Board of Alcohol and Drug Counselors, Kentucky Board of Examiners of Psychology, and Kentucky Board of Licensure for Occupational Therapy; and
    2. “Training program in suicide assessment, treatment, and management” means an empirically supported training program approved by the boards that contains suicide assessment including screening and referral, suicide treatment, and suicide management. A board may approve a training program that excludes one (1) of the elements if the element is inappropriate for the profession in question or inappropriate for the level of licensure or credentialing of that profession based on the profession’s scope of practice. A training program that includes only screening and referral elements shall be at least three (3) hours in length. All other training programs approved under this section shall be at least six (6) hours in length.
  2. Beginning January 1, 2015, each of the following professionals certified or licensed under KRS Title XXVI shall, at least once every six (6) years, complete a training program in suicide assessment, treatment, and management that is approved, in administrative regulations, by the respective boards:
    1. A social worker, marriage and family therapist, professional counselor, or pastoral counselor certified or licensed under KRS Chapter 335;
    2. An alcohol and drug counselor licensed or certified under KRS Chapter 309, and an alcohol and drug peer support specialist registered under KRS Chapter 309;
    3. A psychologist licensed or certified under KRS Chapter 319; and
    4. An occupational therapist licensed under KRS Chapter 319A.
    1. Except as provided in paragraph (b) of this subsection, a professional listed in subsection (2) of this section must complete the first training required by this section by July 2016. (3) (a) Except as provided in paragraph (b) of this subsection, a professional listed in subsection (2) of this section must complete the first training required by this section by July 2016.
    2. A professional listed in subsection (2) of this section applying for initial licensure, registration, or certification on or after June 25, 2013, may delay completion of the first training required by this section for six (6) years after initial licensure, registration, or certification if he or she can demonstrate successful completion of a six (6) hour academic training program in suicide assessment, treatment, and management that:
      1. Was completed no more than six (6) years prior to the application for initial licensure, registration, or certification; and
      2. Is listed on the best practices registry of the American Foundation for Suicide Prevention and the Suicide Prevention Resource Center.
  3. The hours spent completing a training program in suicide assessment, treatment, and management under this section count toward meeting any applicable continuing education requirements for each profession.
  4. A board may, by administrative regulation, specify minimum training and experience that is sufficient to exempt a professional from the training requirements in subsection (2) of this section.
    1. The cabinet shall develop a model list of training programs in suicide assessment, treatment, and management. (6) (a) The cabinet shall develop a model list of training programs in suicide assessment, treatment, and management.
    2. When developing the model list, the cabinet shall:
      1. Consider suicide assessment, treatment, and management training programs of at least six (6) hours in length listed on the best practices registry of the American Foundation for Suicide Prevention and the Suicide Prevention Resource Center; and
      2. Consult with the boards, public and private institutions of higher education, experts in suicide assessment, treatment, and management, and affected professional associations.
    3. The cabinet shall report the model list of training programs to the Interim Joint Committee on Health and Welfare no later than December 15, 2014.
  5. Nothing in this section may be interpreted to expand or limit the scope of practice of any profession regulated under KRS Title XXVI.
  6. The cabinet and the boards affected by this section shall adopt any administrative regulations necessary to implement this section.

HISTORY: Enact. Acts 2013, ch. 17, § 1, effective June 25, 2013; 2014, ch. 64, § 2, effective July 15, 2014; 2015 ch. 29, § 18, effective June 24, 2015.

Regional Community Mental Health Program

210.370. Cities or counties may join in providing programs for mental health or individuals with an intellectual disability.

Any combination of cities or counties of over fifty thousand (50,000) population, and upon the consent of the secretary of the Cabinet for Health and Family Services, any combination of cities or counties with less than fifty thousand (50,000) population, may establish a regional community services program for mental health or individuals with an intellectual disability and staff same with persons specially trained in psychiatry and related fields. Such programs and clinics may be administered by a community board for mental health or individuals with an intellectual disability established pursuant to KRS 210.370 to 210.460 , or by a nonprofit corporation.

History. Enact. Acts 1964, ch. 79, § 2; 1968, ch. 90, § 64(3); 1974, ch. 74, Art. VI, § 107(1), (8); 1978, ch. 396, § 1, effective June 17, 1978; 1998, ch. 426, § 271, effective July 15, 1998; 2005, ch. 99, § 327, effective June 20, 2005; 2012, ch. 146, § 76, effective July 12, 2012.

Compiler’s Notes.

This section was formerly compiled as KRS 203.410 .

NOTES TO DECISIONS

1.Boards Not State Agencies.

Regional mental health-mental retardation boards are not state agencies within the meaning of KRS 61.510 and therefore not subject to the Kentucky Employees Retirement System, even though they may receive and administer state and federal grants. Kentucky Region Eight v. Commonwealth, 507 S.W.2d 489, 1974 Ky. LEXIS 709 ( Ky. 1974 ).

Cited:

Kentucky Asso. for Retarded Citizens v. Conn, 510 F. Supp. 1233, 1980 U.S. Dist. LEXIS 16470 (W.D. Ky. 1980 ), aff’d, Kentucky Asso. for Retarded Citizens, Inc. v. Conn, 674 F.2d 582, 1982 U.S. App. LEXIS 20368 (6th Cir. Ky. 1982 ).

Opinions of Attorney General.

The contribution of a city or county government to a regional community mental health program established pursuant to this section is, under KRS 210.460 , permissive and not mandatory. OAG 68-613 .

Speech pathologists and audiologists employed at comprehensive care centers operated by the various regional mental health-mental retardation boards must be licensed pursuant to KRS 334A.020 as they are not state employees entitled to exemption under KRS 334A.040(3)(b). OAG 74-384 .

The amount and kind of control which the state has over the private agency which operates the state-owned facility depends entirely upon the provisions of the contract, thus such contract should include the obligations required of a mental health-mental retardation board under KRS 210.370 et seq. OAG 75-250 .

If a comprehensive care center is operated by a corporation, it is not subject to the open meetings law (KRS 61.805 to 61.850 ), however, if such care center is operated by a regional board set up according to KRS 210.380 it is subject to the open meetings law. OAG 75-402 .

Regional mental health-mental retardation boards are not agencies of either state or local governments, therefore employees are not eligible to participate under either state or local deferred compensation programs. OAG 76-260 .

210.380. Community board programs for mental health or individuals with an intellectual disability — Establishment — Membership.

Every combination of cities and counties establishing a regional community services program for mental health or individuals with an intellectual disability shall, before it comes within the provisions of KRS 210.370 to 210.460 , establish a community board for mental health or individuals with an intellectual disability consisting of at least nine (9) members. When a nonprofit corporation is the administrator of such a program not established by a combination of either cities or counties, such corporation shall select a community board for mental health or individuals with an intellectual disability which shall be representative of the groups herein enumerated, but the number of members need not be nine (9). When any combination of cities and counties establishes a regional community services program for mental health or individuals with an intellectual disability, the chief executive officer of each participating city or county shall appoint two (2) members to a selecting committee which shall select the members of the board. Membership of the community boards for mental health or individuals with an intellectual disability shall be representative of the elected chief executives of county governments, local health departments, medical societies, county welfare boards, hospital boards, lay associations concerned with mental health and intellectual disabilities as well as labor, business and civic groups, and the general public.

History. Enact. Acts 1964, ch. 79, § 6; 1968, ch. 90, § 64(3); 1976, ch. 328, § 10; 1978, ch. 396, § 2, effective June 17, 1978; 2012, ch. 146, § 77, effective July 12, 2012.

Compiler’s Notes.

This section was formerly compiled as KRS 203.420 .

Opinions of Attorney General.

An agreement between the department of mental health (now Cabinet for Health and Family Services) and the Department of Finance (now Finance and Administration Cabinet) is required before the upper Kentucky River Regional Mental Health-Mental Retardation Board may purchase supplies. OAG 69-171 .

Mental health-mental retardation boards, when considered in the light of this section, clearly are instrumentalities of the Commonwealth and are therefore a political subdivision for the purposes of KRS 61.420 . OAG 73-203 .

Speech pathologists and audiologists employed at comprehensive care centers operated by the various regional mental health-mental retardation boards must be licensed pursuant to KRS 334A.020 as they are not state employees entitled to exemption under KRS 334A.040(3)(b). OAG 74-384 .

210.390. Terms of members of board — Vacancies — Removal.

The term of office of each member of the community board for mental health or individuals with an intellectual disability shall be for four (4) years measured from the first day of the year of appointment except that of the members first appointed, three (3) shall be appointed for a term of two (2) years, three (3) for a term of three (3) years, and three (3) for a term of four (4) years. Vacancies shall be filled for the unexpired term in the same manner as original appointments. Any member of a board may be removed by the appointing authority for neglect of duty, misconduct or malfeasance in office, after being given a written statement of charges and an opportunity to be heard thereon.

History. Enact. Acts 1964, ch. 79, § 7; 1968, ch. 90, § 64(3); 1976, ch. 328, § 11; 1978, ch. 396, § 3, effective June 17, 1978; 2012, ch. 146, § 78, effective July 12, 2012.

Compiler’s Notes.

This section was formerly compiled as KRS 203.430 .

210.400. Duties of board.

Subject to the provisions of this section and the policies and regulations of the secretary of the Cabinet for Health and Family Services, each community board for mental health or individuals with an intellectual disability shall:

  1. Review and evaluate services for mental health or individuals with an intellectual disability provided pursuant to KRS 210.370 to 210.460 , and report thereon to the secretary of the Cabinet for Health and Family Services, the administrator of the program, and, when indicated, the public, together with recommendations for additional services and facilities;
  2. Recruit and promote local financial support for the program from private sources such as community chests, business, industrial and private foundations, voluntary agencies, and other lawful sources, and promote public support for municipal and county appropriations;
  3. Promote, arrange, and implement working agreements with other social service agencies, both public and private, and with other educational and judicial agencies;
  4. Adopt and implement policies to stimulate effective community relations;
  5. Be responsible for the development and approval of an annual plan and budget;
  6. Act as the administrative authority of the community program for mental health or individuals with an intellectual disability;
  7. Oversee and be responsible for the management of the community program for mental health or individuals with an intellectual disability in accordance with the plan and budget adopted by the board and the policies and regulations issued under KRS 210.370 to 210.480 by the secretary of the Cabinet for Health and Family Services;
  8. Comply with the provisions of KRS 65A.010 to 65A.090 ; and
  9. Deliver the training recommended by the Department for Behavioral Health, Developmental and Intellectual Disabilities for local jailers and other officers of the court who may come in contact with persons deemed mentally ill and who are incarcerated or in detention.

History. Enact. Acts 1964, ch. 79, § 8; 1968, ch. 90, § 64(3); 1974, ch. 74, Art. VI, § 107(1), (8); 1978, ch. 396, § 4, effective June 17, 1978; 1998, ch. 426, § 272, effective July 15, 1998; 2005, ch. 99, § 328, effective June 20, 2005; 2012, ch. 146, § 79, effective July 12, 2012; 2013, ch. 40, § 64, effective March 21, 2013; 2018 ch. 171, § 14, effective April 14, 2018; 2018 ch. 207, § 14, effective April 27, 2018; 2019 ch. 128, § 4, effective June 27, 2019.

Compiler's Notes.

This section was formerly compiled as KRS 203.440 .

210.405. Board may act as fiduciary — Duties — Powers.

  1. Any regional community board for mental health or individuals with an intellectual disability established pursuant to KRS 210.380 and recognized by the secretary of the Cabinet for Health and Family Services may be appointed and act as executor, administrator, guardian, limited guardian, conservator, or limited conservator, as provided in this section. In this capacity, the board may transact business in the same manner as any individual and for this purpose may sue and be sued in any of the courts of the state. Bond shall not be required of the board.
  2. Whenever a person who has been adjudged mentally disabled and requires mental health services has no guardian or conservator, the board, acting through its designated officer, may apply to the District Court of the county in which the adjudication was made for its appointment as guardian or conservator for such mentally disabled person. The board may also apply to be substituted as guardian or conservator for a mentally disabled person whose guardian or conservator is the Cabinet for Health and Family Services and who has been discharged or whose discharge is imminent from a Cabinet for Health and Family Services facility.
  3. Upon the death of a person for whom the board has been appointed guardian or conservator leaving an estate and having no relatives at the time residing within the state, the board may apply for appointment as administrator and upon appointment shall close the administration of the estate.
  4. The board may invest funds held as fiduciary in bonds or other securities guaranteed by the United States, and may sell or exchange such securities in its discretion.
  5. The board shall receive such fees for its fiduciary services as provided by law. These fees shall be placed in a trust and agency account, from which may be drawn expenses for filing fees, court costs, and other expenses incurred in the administration of estates. Claims of the board against the estates shall be considered in the same manner as any other claim.

History. Enact. Acts 1970, ch. 278, § 4; 1974, ch. 74, Art. VI, § 107(1), (8); 1976 (Ex. Sess.), ch. 14, § 202, effective January 2, 1978; 1978, ch. 396, § 5, effective June 17, 1978; 1982, ch. 141, § 71, effective July 1, 1982; 1998, ch. 426, § 273, effective July 15, 1998; 2005, ch. 99, § 329, effective June 20, 2005; 2012, ch. 146, § 80, effective July 12, 2012.

Compiler’s Notes.

This section was amended by § 75 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

210.410. State aid for regional mental health and intellectual disability programs.

  1. The secretary of the Cabinet for Health and Family Services is hereby authorized to make state grants and other fund allocations from the Cabinet for Health and Family Services to assist any combination of cities and counties, or nonprofit corporations in the establishment and operation of regional community mental health and intellectual disability programs which may provide primary care services and shall provide at least the following services:
    1. Inpatient services;
    2. Outpatient services;
    3. Partial hospitalization or psychosocial rehabilitation services;
    4. Emergency services;
    5. Consultation and education services; and
    6. Services for individuals with an intellectual disability.
  2. The services required in subsection (1)(a), (b), (c), (d), and (e) of this section, in addition to primary care services, if provided, shall be available to the mentally ill, drug abusers and alcohol abusers, and all age groups including children and the elderly. The services required in subsection (1)(a), (b), (c), (d), (e), and (f), in addition to primary care services, if provided, shall be available to individuals with an intellectual disability. The services required in subsection (1)(b) of this section shall be available to any child age sixteen (16) or older upon request of such child without the consent of a parent or legal guardian, if the matter for which the services are sought involves alleged physical or sexual abuse by a parent or guardian whose consent would otherwise be required.

History. Enact. Acts 1964, ch. 79, § 1; 1968, ch. 90, § 64(3); 1970, ch. 278, § 5; 1974, ch. 74, Art. VI, § 107(1), (8); 1976 (Ex. Sess.), ch. 14, § 202, effective January 2, 1978; 1978, ch. 396, § 6, effective June 17, 1978; 1988, ch. 283, § 1, effective July 15, 1988; 1998, ch. 426, § 274, effective July 15, 1998; 2005, ch. 99, § 330, effective June 20, 2005; 2010, ch. 141, § 20, effective July 15, 2010; 2014, ch. 124, § 1, effective July 15, 2014.

Compiler’s Notes.

This section was formerly compiled as KRS 203.450 .

NOTES TO DECISIONS

Cited:

Kentucky Asso. for Retarded Citizens v. Conn, 510 F. Supp. 1233, 1980 U.S. Dist. LEXIS 16470 (W.D. Ky. 1980 ), aff’d, Kentucky Asso. for Retarded Citizens, Inc. v. Conn, 674 F.2d 582, 1982 U.S. App. LEXIS 20368 (6th Cir. Ky. 1982 ).

210.420. Limits on state general fund grants — Purpose for which made — Distribution formula.

  1. Except as hereinafter provided, grants from state general funds for any program shall not exceed fifty percent (50%) of the total expenditures for:
    1. Salaries;
    2. Contract facilities and services;
    3. Operation, maintenance, and service costs;
    4. Per diem and travel expenses for members of the community boards for mental health or individuals with an intellectual disability; and
    5. Other expenditures specifically approved by the secretary for health and family services.

      No grants from state general funds shall be made for capital expenditures. Grants from state general funds may be made for expenditures for services for mental health or individuals with an intellectual disability, whether provided by operation of a local facility or through contract with other public or private agencies.

  2. The secretary of the Cabinet for Health and Family Services shall distribute to community boards for mental health or individuals with an intellectual disability those general funds appropriated to the cabinet for the operation of regional community programs for mental health or individuals with an intellectual disability. This distribution shall be by a formula which includes provisions for:
    1. Per capita allocations;
    2. Incentive allocations which require local matching funds based on the per capita wealth of the area served; and
    3. Discretionary allocations to be available to the secretary to maintain essential services pursuant to KRS 210.410 .

The formula for allocation of community program general funds for mental health or individuals with an intellectual disability shall be prescribed by administrative regulations.

History. Enact. Acts 1964, ch. 79, § 5; 1968, ch. 90, § 64(3); 1974, ch. 74, Art. VI, § 107(1), (8); 1978, ch. 396, § 7, effective June 17, 1978; 1998, ch. 426, § 275, effective July 15, 1998; 2005, ch. 99, § 331, effective June 20, 2005; 2012, ch. 146, § 81, effective July 12, 2012.

Compiler’s Notes.

This section was formerly compiled as KRS 203.460 .

NOTES TO DECISIONS

Cited:

Kentucky Asso. for Retarded Citizens v. Conn, 510 F. Supp. 1233, 1980 U.S. Dist. LEXIS 16470 (W.D. Ky. 1980 ), aff’d, Kentucky Asso. for Retarded Citizens, Inc. v. Conn, 674 F.2d 582, 1982 U.S. App. LEXIS 20368 (6th Cir. Ky. 1982 ).

210.430. Plan, budget, and membership of board to be submitted to obtain aid.

Any community board for mental health or individuals with an intellectual disability or nonprofit corporation administering a services program for mental health or individuals with an intellectual disability may apply for the assistance provided by KRS 210.370 to 210.460 by submitting annually to the secretary of the Cabinet for Health and Family Services its plan, budget, and membership of the board for the next fiscal year. No program shall be eligible for a state grant and other fund allocations from the Cabinet for Health and Family Services hereunder unless its plan and budget have been approved by the secretary of the Cabinet for Health and Family Services, and no program shall be eligible for a state grant and other fund allocations from the Cabinet for Health and Family Services hereunder unless the board composition is reasonably representative of those groups enumerated in KRS 210.380 .

History. Enact. Acts 1964, ch. 79, § 3; 1968, ch. 90, § 64(3); 1974, ch. 74, Art. VI, § 107(1), (8); 1976, ch. 328, § 12; 1978, ch. 396, § 8, effective June 17, 1978; 1998, ch. 426, § 276, effective July 15, 1998; 2005, ch. 99, § 332, effective June 20, 2005; 2012, ch. 146, § 82, effective July 12, 2012.

Compiler’s Notes.

This section was formerly compiled as KRS 203.470 .

210.440. Allocation of funds — Withdrawal of funds or board recognition — Action by secretary when emergency exists — Appeal and hearing.

  1. At the beginning of each fiscal year, the secretary of the Cabinet for Health and Family Services shall allocate available funds to the boards for mental health or individuals with an intellectual disability or nonprofit organizations for disbursement during the fiscal year in accordance with approved plans and budgets. The secretary shall, from time to time during the fiscal year, review the operations, budgets, and expenditures of the various programs; and if funds are not needed for a program to which they were allocated or if the board has failed to pay employer contributions for which it is liable by its participation in the Kentucky Employees Retirement System, he may, after reasonable notice and opportunity for hearing, withdraw any funds that are unencumbered and reallocate them to other programs. He may withdraw funds from any program, or component part thereof:
    1. Which is not being operated and administered in accordance with its approved plan and budget, and the policies and administrative regulations of the cabinet promulgated pursuant to KRS 210.370 to 210.480 ; or
    2. If the board has failed to pay employer contributions for which it is liable by its participation in the Kentucky Employees Retirement System.
  2. If the secretary finds at any time that a board for mental health or individuals with an intellectual disability or nonprofit organization to which funds have been allocated for the operation of a regional community program for mental health or individuals with an intellectual disability is not operating and administering its program in compliance and accordance with the approved plan and budget and the policies and administrative regulations of the cabinet, or if the board has failed to pay employer contributions for which it is liable by its participation in the Kentucky Employees Retirement System or if the board has filed for bankruptcy, he may withdraw his recognition of that board or organization as the local authority for the receipt of funds and the operation and administration of regional community programs for mental health or individuals with an intellectual disability.
  3. If the secretary finds at any time that an emergency situation exists with regard to the financial stability of any regional board for mental health or individuals with an intellectual disability or nonprofit organization, including a regional board’s inability to pay employer contributions to the Kentucky Employees Retirement System or a regional board’s actions to file for bankruptcy, which jeopardizes the continuation of programs and provision of services in the area served by that board or nonprofit organization, he may, other statutes to the contrary notwithstanding:
    1. Appoint a caretaker administrator who shall be authorized to direct the operation and administration of the board or nonprofit organization’s community programs for mental health or individuals with an intellectual disability including, but not limited to, their financial record keeping, their personnel management operations, and their financial and program reporting; and
    2. Make personnel changes deemed necessary to insure the continued operation of the board or nonprofit organization in compliance with its plan and budget and the policies and regulations of the cabinet.
  4. Any community board for mental health or individuals with an intellectual disability to be affected by the provisions of subsections (2) and (3) of this section shall be notified by the secretary of the Cabinet for Health and Family Services thirty (30) days prior to the anticipated action by the secretary. The notification shall be by means of a letter from the secretary to the chairman of the board for mental health or individuals with an intellectual disability in question and shall state the reasons for the anticipated action. Following the notification, the board for mental health or individuals with an intellectual disability may:
    1. Comply with the secretary’s action without contesting it; or
    2. Request an administrative hearing before a hearing officer appointed by the secretary to show cause why the action should not stand. The application shall be made within seven (7) days of the receipt of the letter from the secretary, and the hearing shall be conducted in accordance with KRS Chapter 13B.

History. Enact. Acts 1964, ch. 79, § 4; 1968, ch. 90, § 64(3); 1974, ch. 74, Art. VI, § 107(1), (8) and (21); 1978, ch. 396, § 9, effective June 17, 1978; 1990, ch. 499, § 13, effective July 13, 1990; 1996, ch. 318, § 101, effective July 15, 1996; 1998, ch. 426, § 277, effective July 15, 1998; 2005, ch. 99, § 333, effective June 20, 2005; 2012, ch. 146, § 83, effective July 12, 2012; 2015 ch. 28, § 16, effective June 24, 2015.

Compiler’s Notes.

This section was formerly compiled as KRS 203.480 .

Opinions of Attorney General.

Any interest which might be taken by the secretary of the Department for Health Services (now Cabinet for Health and Family Services) under subsection (3) does not belong to an individual and is not an interest in property cognizable under the Fourteenth Amendment to the United States Constitution which would require a due process hearing; moreover, neither subsection (3) or (4) violate any other provision of the United States Constitution, or any provision of the Kentucky Constitution. OAG 78-743 .

210.450. Additional powers and duties of secretary as to regional programs.

In addition to the powers and duties already conferred upon him by the law, the secretary of the Cabinet for Health and Family Services shall:

  1. Promulgate policies and regulations governing eligibility of community programs for mental health or individuals with an intellectual disability to receive state grants and other fund allocations from the Cabinet for Health and Family Services, prescribing standards for qualification of personnel and quality of professional service and for in-service training and educational leave programs for personnel, governing eligibility for service so that no person will be denied service on the basis of race, color or creed, or inability to pay, providing for establishment of fee schedules which shall be based upon ability to pay, regulating fees for diagnostic services, which services may be provided for anyone without regard to his financial status, when referred by the courts, schools, or health and welfare agencies whether public or private, governing financial record keeping, prescribing standards for personnel management operations, providing for financial and program reporting requirements, and such other policies and regulations as he deems necessary to carry out the purposes of KRS 210.370 to 210.460 ;
  2. Review and evaluate local programs and the performance of administrative and psychiatric personnel and make recommendations thereon to community boards for mental health or individuals with an intellectual disability and program administrators;
  3. Provide consultative service, by professionals qualified in the areas of mental health and intellectual disabilities by education and training, to communities to assist in ascertaining local needs and in planning and establishing community programs for mental health or individuals with an intellectual disability;
  4. Employ necessary and qualified personnel to implement KRS 210.370 to 210.460 ; and
  5. Review annually the personnel policies, procedures, and personnel compensation plans of community boards for mental health or individuals with an intellectual disability and disapprove if not consistent with accepted standards of personnel and salary administration prescribed by the cabinet.

History. Enact. Acts 1964, ch. 79, § 9; 1968, ch. 90, § 64(3); 1974, ch. 74, Art. VI, § 61; 1978, ch. 396, § 10, June 17, 1978; 1998, ch. 426, § 278, effective July 15, 1998; 2005, ch. 99, § 334, effective June 20, 2005; 2012, ch. 146, § 84, effective July 12, 2012.

Compiler’s Notes.

This section was formerly compiled as KRS 203.490 .

NOTES TO DECISIONS

1.Professional Equivalents.

KRS 210.450 , rather than KRS 319.005 , controls with regard to the qualifications of persons who may provide psychological services at community mental health centers; accordingly, a professional equivalent providing counseling services as an employee of a community mental health center is not governed by KRS Ch. 319, i.e., the authority of the Board of Examiners of Psychology, but is governed by the regulations promulgated by the Cabinet for Health Services (now Health and Family Services), per the authority of KRS 210.450 . Commonwealth v. Funk, 84 S.W.3d 92, 2002 Ky. App. LEXIS 1340 (Ky. Ct. App. 2002).

210.460. Cities and counties may appropriate funds and levy tax for regional program.

In order to provide the necessary funds to establish and operate a services program for mental health or individuals with an intellectual disability and to establish and maintain a clinic, any city or county coming under the provisions of KRS 210.370 to 210.460 may contribute its proportionate share of the cost of the program, to be apportioned on a population basis, by direct appropriation from its general tax fund or by allocating therefor the proceeds of a special tax for the support of the program. The cost shall be deemed for all purposes a proper county expense.

History. Enact. Acts 1964, ch. 79, § 10; 1968, ch. 90, § 64(3); 1978, ch. 396, § 11, effective June 17, 1978; 2012, ch. 146, § 85, effective July 12, 2012.

Compiler’s Notes.

This section was formerly compiled as KRS 203.500 .

Opinions of Attorney General.

The contribution of a city or county government to a regional community mental health program established pursuant to KRS 210.370 is, under this section, permissive and not mandatory. OAG 68-613 .

Regional mental health boards formed pursuant to Kentucky law under this chapter are in effect public boards, and funds which these boards provide to the bureau of rehabilitation for regional mental health services programs are public funds. OAG 70-466 .

The fiscal court may contribute to a mental health workshop which is operated by the North Central Comprehensive Care, which is a nonprofit corporation organized to carry out public purposes involving mental health and mental retardation, pursuant to KRS 210.370 et seq., located in Washington County and serving Washington County residents. OAG 85-99 .

210.470. Taxing district for mental health or individuals with an intellectual disability — Governing board.

  1. It is the intent of this section to create a taxing district for mental health or individuals with an intellectual disability by operation of law in each county coming under the provisions of KRS 210.370 to 210.460 , in order to implement KRS 210.460 .
  2. In all counties which have participated in the establishment of a regional community services program for mental health or individuals with an intellectual disability under KRS 210.380 , a taxing district for mental health or individuals with an intellectual disability is hereby declared to be created.
  3. The members of the community board for mental health or individuals with an intellectual disability recognized by the secretary for health and family services pursuant to KRS 210.380 shall, by virtue of their office, constitute and be the governing board of the taxing district for mental health or individuals with an intellectual disability and shall perform the duties attendant thereto in addition to their duties as members of the community board for mental health or individuals with an intellectual disability. Officers of the community board for mental health or individuals with an intellectual disability shall be the officers of the taxing district for mental health or individuals with an intellectual disability.

History. Enact. Acts 1970, ch. 278, § 8; 1974, ch. 74, Art. VI, § 107(1), (8); 1978, ch. 396, § 12, effective June 17, 1978; 1998, ch. 426, § 279, effective July 15, 1998; 2005, ch. 99, § 335, effective June 20, 2005; 2012, ch. 146, § 86, effective July 12, 2012.

Opinions of Attorney General.

The fiscal court has no authority in acting on behalf of the taxing district to place the question of levying the ad valorem mental health tax to a vote of the people, rather it is the duty of the fiscal court to make up its own mind as to whether or not the tax will be imposed. OAG 78-422 .

This section and KRS 210.480 authorized, in effect, any combination of cities and counties to establish a regional community health service program, together with a governing board. OAG 78-422 .

While the fiscal court cannot order the question of levying an ad valorem mental health tax to be placed on the ballot on behalf of the Mental Health-Mental Retardation Board and the district created under KRS 68.510 et seq., nevertheless the county can, on its own initiative, place a similar question on the ballot as long as the general subject relates to human services and health services, provided the county itself operates the program under KRS 68.520 , and not pursuant to KRS 210.480 , on behalf of the Mental Health-Mental Retardation Regional Board. OAG 78-422 .

210.480. Special ad valorem tax for mental health or individuals with an intellectual disability.

  1. If, after the establishment of the taxing district for mental health or individuals with an intellectual disability as provided for in this section, KRS 210.460 , and KRS 210.470 , the tax levying authorities in member areas of the district, in the opinion of the community board for mental health or individuals with an intellectual disability, do not appropriate an amount sufficient to meet the needs of the services program for mental health or individuals with an intellectual disability and clinic, as established pursuant to KRS 210.370 , the community board for mental health or individuals with an intellectual disability, acting as the governing body of the taxing district shall, with the approval of the Cabinet for Health and Family Services, request the fiscal courts in each of the member areas which have not contributed a sufficient proportionate share of the cost of the program, to impose a special ad valorem tax for mental health or individuals with an intellectual disability in such amount that it deems sufficient, but not in excess of four cents ($0.04) per one hundred dollars ($100) of full assessed valuation. The fiscal court may, upon receipt of a duly certified copy of said request, include in the next ad valorem tax levy said special tax for mental health or individuals with an intellectual disability imposed by the board for mental health or individuals with an intellectual disability, which shall be in addition to all other county ad valorem taxes. If levied by the fiscal court, said special tax for mental health or individuals with an intellectual disability shall be collected in the same manner as are other county ad valorem taxes and turned over to the community board for mental health or individuals with an intellectual disability to be used for the maintenance and operation of the services program for mental health or individuals with an intellectual disability and clinic as provided in KRS 210.460 . No appropriation for a services program for mental health or individuals with an intellectual disability and clinic established under KRS 210.370 shall be reduced or eliminated on the grounds that a special tax has been levied where the community board for mental health or individuals with an intellectual disability requested the amount levied as a necessary supplement to that appropriation. Taxing districts organized pursuant to KRS 210.470 shall not be subject to the provisions of the compensating tax rate as defined by KRS 132.010 nor to Acts 1965 (1st Ex. Sess.), ch. 2.
  2. Nothing contained in this section shall be construed as precluding any city or county from appropriating or allocating funds in any other manner for the support of the regional services program for mental health or individuals with an intellectual disability and clinic, pursuant to KRS 210.460 , or any other statutory provision.

History. Enact. Acts 1970, ch. 278, § 9; 1974, ch. 74, Art. VI, § 107(1), (9); 1978, ch. 396, § 13, effective June 17, 1978; 1998, ch. 426, § 280, effective July 15, 1998; 2005, ch. 99, § 336, effective June 20, 2005; 2012, ch. 146, § 87, effective July 12, 2012.

Compiler’s Notes.

Acts 1965 (1st Ex. Sess.), ch. 2 referred to in subsection (1), is compiled as KRS 68.180 , 68.185 , 68.190 , 68.240 , 68.245 , 132.010 , 132.020 , 132.023 , 132.027 , 132.200 , 132.425 (now repealed), 136.120 , 157.380 (now repealed), 157.440 , 160.470 , 160.476 , 160.477 (now repealed), 160.482 to 160.488 , 178.200 , 178.210 .

Opinions of Attorney General.

Nothing in this section requires a referendum on the question of whether or not the requested tax is to be levied and such an issue cannot be placed on the ballot. OAG 78-123 .

The fiscal court has complete discretion under the terms of this section as to whether or not a proposed ad valorem mental health tax will be levied. OAG 78-123 .

KRS 210.470 and this section authorize, in effect, any combination of cities and counties to establish a regional community health service program, together with a governing board. OAG 78-422 .

The fiscal court has no authority in acting on behalf of the taxing district to place the question of levying an ad valorem mental health tax to a vote of the people, rather it is the duty of the fiscal court to make up its own mind as to whether or not the tax will be imposed. OAG 78-422 .

While the fiscal court cannot order the tax question to be placed on the ballot on behalf of the Mental Health-Mental Retardation Board and the district created under KRS 68.510 et seq., nevertheless the county can on its own initiative place a similar question on the ballot as long as the general subject relates to human services and health services, provided the county itself operates the program under KRS 68.520 , and not pursuant to this section on behalf of the Mental Health-Mental Retardation Regional Board. OAG 78-422 .

210.485. Regional boards to provide lists of hospitals, psychiatric facilities, and treatment providers for involuntary treatment under KRS 222.433 and 222.434.

Regional community boards for mental health or individuals with an intellectual disability shall, on at least an annual basis, submit the following lists to the circuit clerks in each board’s region:

  1. A list of hospitals and psychiatric facilities in the judicial districts within the board’s region which are able and willing to take respondents ordered to undergo seventy-two (72) hours of treatment and observation pursuant to KRS 222.434 ; and
  2. A list of hospitals and treatment providers in the judicial districts within the board’s region who are able and willing to provide treatment for substance use disorder ordered pursuant to KRS 222.433 .

History. Enact. Acts 2004, ch. 116, § 9, effective July 13, 2004; 2012, ch. 146, § 88, effective July 12, 2012; 2019 ch. 128, § 5, effective June 27, 2019.

Planning for Mental Health and Substance Abuse Services

210.500. Legislative findings on planning for mental health and substance abuse services. [Repealed]

History. Enact. Acts 2000, ch. 507, § 1, effective April 21, 2000; repealed by 2019 ch. 128, § 31, effective June 27, 2019.

210.502. Kentucky Commission on Services and Supports for Individuals with Mental Illness, Alcohol and Other Drug Abuse Disorders, and Dual Diagnoses. [Repealed]

History. Enact. Acts 2000, ch. 507, § 2, effective April 21, 2000; 2003, ch. 5, § 1, effective June 24, 2003; 2005, ch. 99, § 54, effective June 20, 2005; 2006, ch. 211, § 124, effective July 12, 2006; 2007, ch. 24, § 19, effective June 26, 2007; 2007, ch. 85, § 244, effective June 26, 2007; 2012, ch. 146, § 89, effective July 12, 2012; 2012, ch. 158, § 38, effective July 12, 2012; 2017 ch. 167, § 15, effective June 29, 2017; repealed by 2019 ch. 128, § 31, effective June 27, 2019.

210.504. Commission meetings — Duties — Development of comprehensive state plan. [Repealed]

History. Enact. Acts 2000, ch. 507, § 3, effective April 21, 2000; 2003, ch. 5, § 2, effective June 24, 2003; 2012, ch. 146, § 90, effective July 12, 2012; 2012, ch. 158, § 39, effective July 12, 2012; 2018 ch. 171, § 13, effective April 14, 2018; 2018 ch. 207, § 13, effective April 27, 2018; repealed by 2019 ch. 128, § 31, effective June 27, 2019.

210.506. Regional planning councils — Groups to be invited to join council.

  1. The regional community boards for mental health or individuals with an intellectual disability established under KRS 210.370 shall institute regional planning councils for the purpose of conducting assessment and strategic planning. The councils shall be attached to the community boards for mental health or individuals with an intellectual disability for administrative purposes.
  2. A member of the regional community board for mental health or individuals with an intellectual disability shall serve as chair of the regional planning council.
  3. The board shall issue invitations to join the council to no less than two (2) representatives of each of the following groups:
    1. Family members of individuals with mental illness, substance use disorder, and dual diagnoses;
    2. Consumers of mental health and substance use disorder services;
    3. County officials and business leaders;
    4. Health departments and primary care physicians;
    5. Advocates and community organizations;
    6. Educators and school personnel;
    7. Regional interagency councils established under KRS Chapter 200;
    8. Law enforcement and court personnel;
    9. Public and private organizations, agencies, or facilities that provide services for mental health and substance use disorder in the region that represent inpatient services, outpatient services, residential services, and community-based supportive housing programs;
    10. Individuals who provide mental health and substance use disorder services in the region; and
    11. Public and private hospitals that provide mental health and substance use disorder services.
  4. The regional planning councils may establish bylaws and procedures to assist in the operation of the councils.

History. Enact. Acts 2000, ch. 507, § 4, effective April 21, 2000; 2003, ch. 5, § 3, effective June 24, 2003; 2012, ch. 146, § 91, effective July 12, 2012; 2019 ch. 128, § 6, effective June 27, 2019.

210.509. Meeting and duties of regional planning councils.

  1. The regional planning councils shall meet as often as necessary to accomplish their purpose.
  2. The regional planning councils shall:
    1. Assess in the region the needs of individuals with mental illness, substance use disorders, and dual diagnoses;
      1. Study the regional mental health and substance use disorder treatment delivery system and identify specific barriers in each region to accessing services; (b) 1. Study the regional mental health and substance use disorder treatment delivery system and identify specific barriers in each region to accessing services;
      2. Assess the capacity of and gaps in the existing system, including the adequacy of a safety net system and the adequacy and availability of the mental health and substance use disorder professional workforce in each region; and
      3. Assess the coordination and collaboration of efforts between public and private facilities and entities;
    2. Develop a regional strategy to increase access to community-based services and supports for individuals with mental illness, substance use disorders, and dual diagnoses. The strategies may include:
      1. Exploration of the use of community-based treatment programs, including but not limited to community-based hospitalization;
      2. Access to and funding for the most effective medications;
      3. Promotion of family and consumer support groups statewide;
      4. Reduction of instances of criminalization of individuals with mental illness, substance use disorders, and dual diagnoses; and
      5. Efforts to increase housing options for persons at risk of institutionalization;
    3. Identify funding;
    4. Evaluate the access of children and youth to mental health and substance use disorder services and preventive programs within the region, including but not limited to those provided by schools, family resource and youth services centers, public and private mental health and substance use disorder providers and facilities, physical health care providers and facilities, the faith community, and community agencies;
    5. Collect and evaluate data regarding individuals with mental illness, substance use disorders, and dual diagnoses who experience repeated hospital admissions, involvement with law enforcement, courts, and the judicial system, and repeated referrals from hospitals to community-based services; and
    6. Make recommendations on each subsection of this section in the regional annual plans required by KRS 210.400 .

History. Enact. Acts 2000, ch. 507, § 5, effective April 21, 2000; 2003, ch. 5, § 4, effective June 24, 2003; 2019 ch. 128, § 7, effective June 27, 2019.

Mental Health Interstate Compact

210.520. Enactment of compact.

The interstate compact on mental health is hereby enacted into law and entered into by this state with all other states legally joining therein as follows:

The contracting states solemnly agree that:

History. Enact. Acts 1958, ch. 163, § 1.

ARTICLE I

The party states find that the proper and expeditious treatment of the mentally ill and mentally deficient can be facilitated by cooperative action, to the benefit of the patients, their families, and society as a whole. Further, the party states find that the necessity of and desirability for furnishing such care and treatment bears no primary relation to the residence or citizenship of the patient but that, on the contrary, the controlling factors of community safety and humanitarianism require that facilities and services be made available for all who are in need of them. Consequently, it is the purpose of this compact and of the party states to provide the necessary legal basis for the institutionalization or other appropriate care and treatment of the mentally ill and mentally deficient under a system that recognizes the paramount importance of patient welfare and to establish the responsibilities of the party states in terms of such welfare.

ARTICLE II

As used in this compact:

  1. “Sending state” shall mean a party state from which a patient is transported pursuant to the provisions of the compact or from which it is contemplated that a patient may be so sent;
  2. “Receiving state” shall mean a party state to which a patient is transported pursuant to the provisions of the compact or to which it is contemplated that a patient may be so sent;
  3. “Institution” shall mean any hospital or other facility maintained by a party state or political subdivision thereof for the care and treatment of mental illness or mental deficiency;
  4. “Patient” shall mean any person subject to or eligible as determined by the laws of the sending state, for institutionalization or other care, treatment, or supervision pursuant to the provisions of this compact;
  5. “After-care” shall mean care, treatment and services provided a patient, as defined herein, on convalescent status or conditional release;
  6. “Mental illness” shall mean mental disease to such extent that a person so afflicted requires care and treatment for his own welfare, or the welfare of others, or of the community;
  7. “Mental deficiency” shall mean mental deficiency as defined by appropriate clinical authorities to such extent that a person so afflicted is incapable of managing himself and his affairs, but shall not include mental illness as defined herein;
  8. “State” shall mean any state, territory or possession of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.

ARTICLE III

  1. Whenever a person physically present in any party state shall be in need of institutionalization by reason of mental illness or mental deficiency, he shall be eligible for care and treatment in an institution in that state irrespective of his residence, settlement or citizenship qualifications.
  2. The provisions of paragraph (a) of this article to the contrary notwithstanding, any patient may be transferred to an institution in another state whenever there are factors based upon clinical determinations indicating that the care and treatment of said patient would be facilitated or improved thereby. Any such institutionalization may be for the entire period of care and treatment or for any portion or portions thereof. The factors referred to in this paragraph shall include the patient’s full record with due regard for the location of the patient’s family, character of the illness and probable duration thereof, and such other factors as shall be considered appropriate.
  3. No state shall be obliged to receive any patient pursuant to the provisions of paragraph (b) of this article unless the sending state has given advance notice of its intention to send the patient; furnished all available medical and other pertinent records concerning the patient; given the qualified medical or other appropriate clinical authorities of the receiving state an opportunity to examine the patient if said authorities so wish; and unless the receiving state shall agree to accept the patient.
  4. In the event that the laws of the receiving state establish a system of priorities for the admission of patients, an interstate patient under this compact shall receive the same priority as a local patient and shall be taken in the same order and at the same time that he would be taken if he were a local patient.
  5. Pursuant to this compact, the determination as to the suitable place of institutionalization for a patient may be reviewed at any time and such further transfer of the patient may be made as seems likely to be in the best interest of the patient.

ARTICLE IV

  1. Whenever, pursuant to the laws of the state in which a patient is physically present, it shall be determined that the patient should receive after-care or supervision, such care or supervision may be provided in a receiving state. If the medical or other appropriate clinical authorities having responsibility for the care and treatment of the patient in the sending state shall have reason to believe that after-care in another state would be in the best interest of the patient and would not jeopardize the public safety, they shall request the appropriate authorities in the receiving state to investigate the desirability of affording the patient such after-care in said receiving state, and such investigation shall be made with all reasonable speed. The request for investigation shall be accompanied by complete information concerning the patient’s intended place of residence and the identity of the person in whose charge it is proposed to place the patient, the complete medical history of the patient, and such other documents as may be pertinent.
  2. If the medical or other appropriate clinical authorities having responsibility for the care and treatment of the patient in the sending state and the appropriate authorities in the receiving state find that the best interest of the patient would be served thereby, and if the public safety would not be jeopardized thereby, the patient may receive after-care or supervision in the receiving state.
  3. In supervising, treating, or caring for a patient on after-care pursuant to the terms of this article, a receiving state shall employ the same standards of visitation, examination, care, and treatment that it employs for similar local patients.

ARTICLE V

Whenever a dangerous or potentially dangerous patient escapes from an institution in any party state, that state shall promptly notify all appropriate authorities within and without the jurisdiction of the escape in a manner reasonably calculated to facilitate the speedy apprehension of the escapee. Immediately upon the apprehension and identification of any such dangerous or potentially dangerous patient, he shall be detained in the state where found pending disposition in accordance with law.

ARTICLE VI

The duly accredited officers of any state party to this compact, upon the establishment of their authority and the identity of the patient, shall be permitted to transport any patient being moved pursuant to this compact through any and all states party to this compact, without interference.

ARTICLE VII

  1. No person shall be deemed a patient of more than one institution at any given time. Completion of transfer of any patient to an institution in a receiving state shall have the effect of making the person a patient of the institution in the receiving state.
  2. The sending state shall pay all costs of and incidental to the transportation of any patient pursuant to this compact, but any two or more party states may, by making a specific agreement for that purpose, arrange for a different allocation of costs as among themselves.
  3. No provision of this compact shall be construed to alter or affect any internal relationships, among the departments, agencies and officers of and in the government of a party state, or between a party state and its subdivisions, as to the payment of costs, or responsibility therefor.
  4. Nothing in this compact shall be construed to prevent any party state or subdivision thereof from asserting any right against any person, agency or other entity in regard to costs for which such party state or subdivision thereof may be responsible pursuant to any provision of this compact.
  5. Nothing in this compact shall be construed to invalidate any reciprocal agreement between a party state and a non-party state relating to institutionalization, care or treatment of the mentally ill or mentally deficient, or any statutory authority pursuant to which such agreements may be made.

ARTICLE VIII

  1. Nothing in this compact shall be construed to abridge, diminish, or in any way impair the rights, duties, and responsibilities of any patient’s guardian on his own behalf or in respect of any patient for whom he may serve, except that where the transfer of any patient to another jurisdiction makes advisable the appointment of a supplemental or substitute guardian, any court of competent jurisdiction in the receiving state may make such supplemental or substitute appointment and the court which appointed the previous guardian shall upon being duly advised of the new appointment, and upon the satisfactory completion of such accounting and other acts as such court may by law require, relieve the previous guardian of power and responsibility to whatever extent shall be appropriate in the circumstances; provided, however, that in the case of any patient having settlement in the sending state, the court of competent jurisdiction in the sending state, shall have the sole discretion to relieve a guardian appointed by it or continue his power and responsibility, whichever it shall deem advisable. The court in the receiving state may, in its discretion, confirm or reappoint the person or persons previously serving as guardian in the sending state in lieu of making a supplemental or substitute appointment.
  2. The term “guardian” as used in paragraph (a) of this article shall include any guardian, trustee, legal committee, conservator, or other person or agency however denominated who is charged by law with power to act for or responsibility for the person or property of a patient.

ARTICLE IX

  1. No provision of this compact except Article V shall apply to any person institutionalized while under sentence in a penal or correctional institution or while subject to trial on a criminal charge, or whose institutionalization is due to the commission of an offense for which in the absence of mental illness or mental deficiency, said person would be subject to incarceration in a penal or correctional institution.
  2. To every extent possible, it shall be the policy of states party to this compact that no patient shall be placed or detained in any prison, jail or lockup, but such person shall, with all expedition, be taken to a suitable institutional facility for mental illness or mental deficiency.

ARTICLE X

  1. Each party state shall appoint a “compact administrator” who, on behalf of his state, shall act as general coordinator of activities under the compact in his state and who shall receive copies of all reports, correspondence, and other documents relating to any patient processed under the compact by his state either in the capacity of sending or receiving state. The compact administrator or his duly designated representative shall be the official with whom other party states shall deal in any matter relating to the compact or any patient processed thereunder.
  2. The compact administrators of the respective party states shall have power to promulgate reasonable rules and regulations to carry out more effectively the terms and provisions of this compact.

ARTICLE XI

The duly constituted administrative authorities of any two or more party states may enter into supplementary agreements for the provision of any service or facility or for the maintenance of any institution on a joint or cooperative basis whenever the states concerned shall find that such agreements will improve services, facilities, or institutional care and treatment in the fields of mental illness or mental deficiency. No such supplementary agreement shall be construed so as to relieve any party state of any obligation which it otherwise would have under other provisions of this compact.

ARTICLE XII

This compact shall enter into full force and effect as to any state when enacted by it into law and such state shall thereafter be a party thereto with any and all states legally joining therein.

ARTICLE XIII

  1. A state party to this compact may withdraw therefrom by enacting a statute repealing the same. Such withdrawal shall take effect one year after notice thereof has been communicated officially and in writing to the governors and administrators of all other party states. However, the withdrawal of any state shall not change the status of any patient who has been sent to said state or sent out of said state pursuant to the provisions of the compact.
  2. Withdrawal from any agreement permitted by Article VII (b) as to costs or from any supplementary agreement made pursuant to Article XI shall be in accordance with the terms of such agreement.

ARTICLE XIV

This compact shall be liberally construed so as to effectuate the purposes thereof. The provisions of this compact shall be severable and if any phrase, clause, sentence or provision of this compact is declared to be contrary to the constitution of any party state or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this compact shall be held contrary to the constitution of any state party thereto, the compact shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters.

NOTES TO DECISIONS

Cited:

Lyons v. Thomas, 378 S.W.2d 798, 1964 Ky. LEXIS 207 ( Ky. 1964 ).

210.530. Compact administrator.

The Governor is authorized and empowered to designate an officer who shall be the compact administrator and who, acting jointly with like officers of other party states, shall have power to promulgate rules and regulations to carry out more effectively the terms of the compact. The compact administrator shall serve subject to the pleasure of the Governor, and is authorized, empowered, and directed to cooperate with all cabinets, agencies, and officers of and in the government of this state and its subdivisions in facilitating the proper administration of the compact or of any supplementary agreement or agreements entered into by this state thereunder.

History. Enact. Acts 1958, ch. 163, § 2.

210.540. Supplementary agreements.

The compact administrator is authorized and empowered to enter into supplementary agreements with appropriate officials of other states pursuant to Articles VII and XI of the compact. In the event that such supplementary agreements shall require or contemplate the use of any institution or facility of this state or require or contemplate the provision of any service by this state, no such agreement shall have force or effect until approved by the head of the cabinet or agency under whose jurisdiction said institution or facility is operated or whose cabinet or agency will be charged with the rendering of such service.

History. Enact. Acts 1958, ch. 163, § 3.

210.550. Financial participation.

The compact administrator, subject to the approval of the secretary of the Finance and Administration Cabinet, may make or arrange for any payments necessary to discharge any financial obligations imposed upon this state by the compact or by any supplementary agreement entered into thereunder.

History. Enact. Acts 1958, ch. 163, § 4; 1974, ch. 74, Art. II, § 9(2).

Kentucky Commission on Services and Supports for Individuals with an Intellectual Disability and Other Developmental Disabilities

210.570. Legislative findings on review and evaluation of current system of services and supports for persons with an intellectual disability and other developmental disabilities — Construction of KRS 210.570 to 210.577.

The General Assembly of the Commonwealth of Kentucky hereby finds and declares that:

  1. Assistance and support to citizens of the Commonwealth with an intellectual disability and other developmental disabilities are necessary and appropriate roles of state government;
  2. The current system of services and supports to persons with an intellectual disability and other developmental disabilities suffers from a lack of program coordination, funding, controls on quality of care, and review and evaluation;
  3. As part of the review and evaluation, it is necessary to require:
    1. Identification, development, and provision of services and supports for persons with an intellectual disability and other developmental disabilities using available institutional care as appropriate and integrated with community-based services designed to be inclusive, responsive to individual needs, and protective of the individual’s legal rights to equal opportunity;
    2. Review of current funding mechanisms to determine the best method to establish an array of community-based comprehensive services using facility-based outpatient services and supports that are available through public and private sectors, including nonprofit and for-profit service providers, that will allow persons with an intellectual disability and other developmental disabilities the opportunity to participate in community life. The review shall include consideration of the availability of residential alternatives, employment opportunities, and opportunities for participation in community-based social and recreational activities; and
    3. Development of funding strategies to promote appropriate use of community-based services and supports that provide:
      1. Flexibility for persons with an intellectual disability and other developmental disabilities;
      2. Distribution of available funds among all interested service providers, including nonprofit and for-profit service providers, based on the needs of the person with an intellectual disability and other developmental disabilities; and
      3. Efficiency and accountability to the general public;
  4. KRS 210.570 to 210.577 shall be construed to protect and to promote the continuing development and maintenance of the physical, mental, and social skills of persons with an intellectual disability and other developmental disabilities; and
  5. KRS 210.570 to 210.577 shall not be construed:
    1. To alter any requirements or responsibilities that are mandated by any state or federal law;
    2. To relieve any organizational unit or administrative body of its duties under state or federal law; or
    3. To transfer among state organizations or administrative bodies any responsibilities, powers, or duties that are mandated by state or federal law.

History. Enact. Acts 2000, ch. 403, § 1, effective April 14, 2000; 2010, ch. 141, § 21, effective July 15, 2010; 2012, ch. 146, § 92, effective July 12, 2012.

210.575. Kentucky Commission on Services and Supports for Individuals with an Intellectual Disability and Other Developmental Disabilities — Membership — Chair — Compensation.

  1. There is created the Kentucky Commission on Services and Supports for Individuals with an Intellectual Disability and Other Developmental Disabilities. The commission shall consist of:
    1. The secretary or designee of the Cabinet for Health and Family Services;
    2. The commissioner or designee of the Department for Behavioral Health, Developmental and Intellectual Disabilities;
    3. The commissioner or designee of the Department for Medicaid Services;
    4. The commissioner or designee of the Department of Education;
    5. The executive director of the Office of Vocational Rehabilitation;
    6. The director of the University Affiliated Program at the Interdisciplinary Human Development Institute of the University of Kentucky;
    7. The director of the Kentucky Council on Developmental Disabilities;
    8. Two (2) members of the House of Representatives, appointed by the Speaker of the House;
    9. Two (2) members of the Senate, appointed by the Senate President; and
    10. Public members, appointed by the Governor as follows:
      1. One (1) member representing families of a child with an intellectual or other developmental disability residing in the home of the family member;
      2. One (1) member representing families of an adult with an intellectual or other developmental disability residing in the home of the family member;
      3. One (1) member representing families of an adult with an intellectual or other developmental disability residing in a community-based setting;
      4. One (1) member representing families of an individual with an intellectual or other developmental disability residing in an institutional residential facility that provides services to individuals with intellectual disabilities;
      5. Three (3) persons with intellectual or other developmental disabilities;
      6. Two (2) business leaders;
      7. Two (2) providers of intellectual or other developmental disability services;
      8. One (1) provider of intellectual or other developmental disability services that is a regional community program for mental health or individuals with an intellectual disability established pursuant to KRS 210.370 ; and
      9. One (1) representative of a statewide advocacy organization providing education and outreach on topics associated with intellectual and other developmental disabilities. The thirteen (13) appointments made under this paragraph shall be chosen to reflect representation from each of Kentucky’s six (6) congressional districts.
  2. The secretary of the Cabinet for Health and Family Services may serve as chair of the commission or the secretary may appoint his or her designee, the commissioner of the Department for Behavioral Health, Developmental and Intellectual Disabilities, or the commissioner’s designee to serve as chair.
  3. Members defined in subsection (1)(a) to (i) of this section shall serve during their terms of office. All public members appointed by the Governor shall serve a four (4) year term and may be reappointed for one (1) additional four (4) year term.
  4. The members appointed by the Governor shall serve until their successors are appointed and qualified.
  5. Members appointed by the Governor to fulfill a vacated position shall serve the remainder of that position’s term and may be reappointed for a four (4) year term.
  6. Members described in subsection (1)(h) and (i) of this section who fail to attend fifty percent (50%) of commission meetings in a fiscal year may be recommended to the Speaker of the House or the Senate President for replacement with new members.
  7. Members appointed under subsection (1)(j) of this section shall provide advance notice, on a meeting-by-meeting basis, to the person designated by the commission chair if the member will be sending a representative.
  8. Members appointed under subsection (1)(j) of this section who fail to attend fifty percent (50%) of the commission meetings in a fiscal year may be recommended to the Governor for replacement with a new member.
  9. Members appointed under subsection (1)(j) of this section who send representatives for greater than fifty percent (50%) of the commission meetings in a fiscal year may be recommended to the Governor for replacement with a new member.
  10. All public members of the commission shall receive twenty-five dollars ($25) per day for attending each regularly scheduled meeting or any special meeting called by the chair. All commission members shall be reimbursed for necessary travel and other expenses actually incurred in the discharge of duties of the commission.

History. Enact. Acts 2000, ch. 403, § 2, effective April 14, 2000; 2001, ch. 75, § 1, effective June 21, 2001; 2002, ch. 59, § 3, effective July 15, 2002; 2003, ch. 161, § 1, effective June 24, 2003; 2005, ch. 99, § 55, effective June 20, 2005; 2006, ch. 211, § 125, effective July 12, 2006; 2010, ch. 141, § 22, effective July 15, 2010; 2012, ch. 146, § 93, effective July 12, 2012; 2012, ch. 158, § 40, effective July 12, 2012; 2020 ch. 36, § 17, effective July 15, 2020.

Legislative Research Commission Note.

(7/15/2010). 2010 Ky. Acts ch. 141, sec. 22, changed “Kentucky Commission on Services and Supports for Individuals with Mental Retardation” to “Kentucky Commission on services and Supports for Individuals with Intellectual Disabilities.” It is apparent from an examination of other sections of this Act and from consultation with the drafter that “Individuals with Intellectual Disabilities” should have been “Individuals with an Intellectual Disability,” to conform with changes made to other sections of the Act. The Reviser of Statutes had made this change under the authority of KRS 7.136 .

210.577. Commission’s meetings, purposes, and goals — Report.

  1. The commission created in KRS 210.575 shall meet at least quarterly or upon the call of the chair, the request of four (4) or more members, or the request of the Governor.
  2. The commission shall serve in an advisory capacity to accomplish the following:
    1. Advise the Governor and the General Assembly concerning the needs of persons with intellectual or other developmental disabilities;
    2. Develop a statewide strategy to increase the quality and availability of community-based services and supports for persons with intellectual or other developmental disabilities; and
    3. Review quality assurance and consumer satisfaction data annually and submit recommendations that address areas of need to the Cabinet for Health and Family Services.
  3. The commission shall submit an annual report describing its work over the previous year, including recommendations submitted pursuant to subsection (2)(c) of this section, no later than December 1 to the Governor and the Legislative Research Commission.

History. Enact. Acts 2000, ch. 403, § 3, effective April 14, 2000; 2003, ch. 108, § 2, effective June 24, 2003; 2003, ch. 161, § 2, effective June 24, 2003; 2010, ch. 141, § 23, effective July 15, 2010; 2020 ch. 36, § 18, effective July 15, 2020.

210.580. Joint ad hoc committee on transitioning from children’s services systems to adult services systems — Membership — Duties — Report. [Repealed]

History. Enact. Acts 2004, ch. 119, § 2, effective July 13, 2004; 2010, ch. 141, § 24, effective July 15, 2010; repealed by 2019 ch. 128, § 31, effective June 27, 2019.

DATE Centers

210.610. Definitions for KRS 210.620 to 210.680. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 161, § 1; 1974, ch. 74, Art. VI, § 107(1), (9)) was repealed by Acts 1994, ch. 334, § 19. For present law see KRS Chapter 222.

210.620. Issuance of permits for operation of DATE centers — Evaluation — Fees. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 161, § 2; 1974, ch. 74, Art. VI, § 107(1), (9); 1982, ch. 247, § 6) was repealed by Acts 1994, ch. 334, § 19. For present law see KRS Chapter 222.

210.630. Permit required for operation of DATE center. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 161, § 3; 1974, ch. 74, Art. VI, § 107(1), (9)) was repealed by Acts 1994, ch. 334, § 19. For present law see KRS Chapter 222.

210.640. DATE center permit — Denial or revocation. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 161, § 4; 1980, ch. 114, § 40) was repealed by Acts 1994, ch. 334, § 19. For present law see KRS Chapter 222.

210.650. Revocation of permit — Reinstatement. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 161, § 5) was repealed by Acts 1994, ch. 334, § 19. For present law see KRS Chapter 222.

210.660. Inspection. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 161, § 6) was repealed by Acts 1994, ch. 334, § 19. For present law see KRS Chapter 222.

210.670. Confidential information. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 161, § 7; 1990, ch. 88, § 90) was repealed by Acts 1994, ch. 334, § 19. For present law see KRS Chapter 222.

210.680. State or federal agencies issued permit automatically. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 161, § 8) was repealed by Acts 1994, ch. 334, § 19. For present law see KRS Chapter 222.

Patient Liability Act of 1978

210.700. Short title.

KRS 210.710 to 210.760 may be cited as the “Patient Liability Act of 1978.”

History. Enact. Acts 1978, ch. 278, § 1, effective June 17, 1978.

210.710. Definitions for KRS 210.710 to 210.760.

  1. “Cabinet” means the Cabinet for Health and Family Services.
  2. “Facility” means a hospital or other institution operated or utilized by the cabinet for the mentally ill, individuals with an intellectual disability, or respiratory disease patients.
  3. “Homestead” means a place where a family makes its home including the land, house and furnishings, outbuildings, vehicles, and tools of the trade formerly occupied by the patient which is exempted by KRS 210.710 to 210.760 from liability to meet patient charges for services rendered in a facility.
  4. “Means test” means a uniform method adopted by the secretary for determining the ability to pay of the patient or person responsible for the patient for board, maintenance and treatment at a facility operated or utilized by the cabinet.
  5. “Person responsible for the patient” includes parents, spouses, guardians, and committees within the scope of their fiduciary duties.
  6. “Secretary” means the secretary of the Cabinet for Health and Family Services.

History. Enact. Acts 1978, ch. 278, § 2, effective June 17, 1978; 1998, ch. 426, § 281, effective July 15, 1998; 2005, ch. 99, § 337, effective June 20, 2005; 2012, ch. 146, § 94, effective July 12, 2012.

210.720. Charge for board of patients — Method of establishing.

  1. Every patient admitted to a facility operated or utilized by the cabinet, except prisoners transferred pursuant to KRS 202A.201 , shall be charged for their board, maintenance and treatment pursuant to this section and the cabinet may sue in the Franklin Circuit Court or Franklin District Court to recover from the patient or person responsible for the patient for liability as established by this section.
  2. The secretary shall fix the patient cost per day for board, maintenance and treatment for each facility operated by the cabinet at frequent intervals which shall be the uniform charge for all persons receiving such services.
  3. The liability of any patient, or person responsible for the patient, for payment of the charge for board, maintenance and treatment shall be based upon ability to pay by ascertaining the entire financial resources available to the patient, or to the person responsible for the patient, and shall include, but shall not be limited to: insurance, all third party coverage including Medicare and Medicaid and other governmental programs, cash, stocks, bonds, and all other property owned by the patient or controlled by the person responsible for the patient. The secretary shall establish a reasonable means test for determining payment liability of patients and persons responsible for patients. In no event shall liability be in excess of the cost per patient per day established by the secretary.
  4. Nothing in KRS 210.710 to 210.760 shall be construed to limit any liability of insurance companies or other third party payors including Medicare and Medicaid and other governmental programs.

History. Enact. Acts 1978, ch. 278, § 3, effective June 17, 1978; 1982, ch. 247, § 7, effective July 15, 1982; 1982, ch. 445, § 41, effective July 1, 1982.

Legislative Research Commission Note.

This section was amended by two 1982 Acts which do not appear to be in conflict and have been compiled together.

This section was amended in 1982 Acts, Chapter 445, which contains the following language in Section 45 of that Act: “This Act shall become effective on July 1, 1982.” The Ky. Constitution, in Section 55, requires that a reason be set forth for the emergency. However, no reason is set forth in this Act. The effective date for 1982 Acts with no emergency provision is July 15, 1982.

NOTES TO DECISIONS

1.In General.

Statute providing that should lunatic acquire estate which could be subjected to debt, he should pay board, referred to estate in excess of that necessary for support of other dependents. Central Kentucky Asylum for Insane v. Drane, 113 Ky. 281 , 68 S.W. 149, 24 Ky. L. Rptr. 176 , 1902 Ky. LEXIS 56 ( Ky. 1902 ); Schroer v. Central Kentucky Asylum for Insane, 113 Ky. 288 , 68 S.W. 150, 24 Ky. L. Rptr. 150 , 1902 Ky. LEXIS 57 ( Ky. 1902 ) (decided under prior law).

2.Persons Liable.
3.— Spouse.

In the case of an incompetent wife and her husband, the estate of either is primarily and equally liable for institutional board and maintenance provided such estate is sufficient for this burden after meeting other dependency obligations. Central Hospital of Kentucky v. Powell, 301 Ky. 808 , 193 S.W.2d 456, 1946 Ky. LEXIS 587 ( Ky. 1946 ) (decided under prior law).

4.— State for Convict.

Where a convict sentenced to the penitentiary was found to be insane and was transferred to a state mental hospital pursuant to former KRS 202.380 (now repealed), the duty to supply him with board and maintenance remained the obligation of the state, and his estate could not be held liable for board and maintenance. Department of Welfare v. Brock, 306 Ky. 243 , 206 S.W.2d 915, 1947 Ky. LEXIS 983 ( Ky. 1947 ) (decided under prior law).

5.Property Liable.
6.— Lien.

Where father, in consideration of past and future support, conveyed land to son and retained lien to secure his future support, asylum was not entitled to be subrogated to lien of father to extent of its claim for support of father. Eastern State Hospital v. Goodman, 155 Ky. 628 , 160 S.W. 171, 1913 Ky. LEXIS 313 ( Ky. 1913 ) (decided under prior law).

7.— Life Estate.

Where will vested widow with life estate and power to sell property for her support and devised remainder to testator’s children, state institution to which widow was committed was not entitled to subject property remaining on widow’s death to payment for board. Whalin v. Whalin's Adm'r, 266 Ky. 209 , 98 S.W.2d 501, 1936 Ky. LEXIS 636 ( Ky. 1936 ) (decided under prior law).

8.— Pension.

Pension money is liable for patient’s board. Western Kentucky Asylum v. White, 104 Ky. 751 , 47 S.W. 864, 20 Ky. L. Rptr. 904 , 1898 Ky. LEXIS 213 ( Ky. 1898 ) (decided under prior law).

9.— Trusts.

Trust estates are liable for support of beneficiary in state institution if trustee does not have power to withhold all payments or beneficial use from beneficiary. Department of Public Welfare v. Meek, 264 Ky. 771 , 95 S.W.2d 599, 1936 Ky. LEXIS 401 ( Ky. 1936 ) (decided under prior law).

10.— Veterans’ Act Proceeds.

Money, and property purchased with money, received from the United States under world war veterans’ act was held subject to claim of state for board and maintenance of disabled veteran while he was an inmate of the state hospital. Department of Public Welfare use of Central State Hospital v. Allen, 255 Ky. 301 , 74 S.W.2d 329, 1934 Ky. LEXIS 240 ( Ky. 1934 ) (decided under prior law).

11.Rate Charged.

Legislature could not fix one rate for pay patients and a higher rate for patients admitted as paupers but who subsequently became able to pay. Schroer v. Central Kentucky Asylum for Insane, 113 Ky. 288 , 68 S.W. 150, 24 Ky. L. Rptr. 150 , 1902 Ky. LEXIS 57 ( Ky. 1902 ) (decided under prior law).

When patient enters one of the state institutions, he enters subject to state’s right to abolish the institution or to change the charge of his maintenance. Central State Hospital v. O'Donnell's Adm'r, 199 Ky. 708 , 251 S.W. 961, 1923 Ky. LEXIS 914 ( Ky. 1923 ) (decided under prior law).

State board’s action in fixing rate for support of persons in hospital is conclusive in absence of allegation and proof that it acted corruptly, arbitrarily or by mistake. Central State Hospital v. O'Donnell's Adm'r, 199 Ky. 708 , 251 S.W. 961, 1923 Ky. LEXIS 914 ( Ky. 1923 ) (decided under prior law).

State board was authorized to fix rate to be charged for support of insane persons in state hospital. Central State Hospital v. O'Donnell's Adm'r, 199 Ky. 708 , 251 S.W. 961, 1923 Ky. LEXIS 914 ( Ky. 1923 ) (decided under prior law).

12.Cause of Action.

Action against committee to recover patient’s board out of estate should be in rem and not at law. Central Kentucky Asylum v. Penick, 102 Ky. 533 , 44 S.W. 92, 19 Ky. L. Rptr. 1583 , 1898 Ky. LEXIS 6 ( Ky. 1898 ) (decided under prior law).

Cause of action accrues when patient acquired any estate which could be subjected, and was barred five years from that time, though particular estate sought to be subjected was acquired within five years. Schroer v. Central Kentucky Asylum for Insane, 113 Ky. 288 , 68 S.W. 150, 24 Ky. L. Rptr. 150 , 1902 Ky. LEXIS 57 ( Ky. 1902 ) (decided under prior law).

Cause of action against husband for board of his insane wife accrued when husband had estate sufficient for her support in addition to support of his other dependents. His only defense was want of sufficient property or bar of statute of limitations, which was five years after cause of action accrued. Central State Hospital v. Foley, 171 Ky. 616 , 188 S.W. 752, 1916 Ky. LEXIS 406 ( Ky. 1916 ) (decided under prior law).

13.Void Judgment.

Liability for necessaries was furnished where judgment committing patient to institution was void. Norman v. Central Kentucky Asylum, 79 S.W. 189, 25 Ky. L. Rptr. 1846 (1904) (decided under prior law).

Where inmate was regularly committed to asylum, no deduction could be made from his board for his labor at the asylum; but where judgment committing inmate to institution was void and recovery for board was based on quantum meruit, his labor at the asylum could be considered in determining what should be paid for keeping him. Porter v. Eastern Kentucky Asylum, 121 Ky. 816 , 90 S.W. 263, 28 Ky. L. Rptr. 796 , 1906 Ky. LEXIS 256 ( Ky. 1906 ) (decided under prior law).

In the absence of valid judgment in committing patient to asylum, the hospital could only rely on the quantum meruit to recover the cost of his board. Central State Hospital v. Foley, 171 Ky. 616 , 188 S.W. 752, 1916 Ky. LEXIS 406 ( Ky. 1916 ) (decided under prior law).

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Support of the Family, § 16.5.

210.730. Exemption from liability.

The following shall be exempt from liability for patient’s board, maintenance and treatment charges:

  1. Any parents’ liability for charges for board, maintenance and treatment at facilities operated or utilized by the cabinet that exceed the cost of caring for a normal child at home as determined from standard sources by the cabinet;
  2. Any parents’ liability after the patient has attained the age of eighteen (18);
  3. A homestead.

History. Enact. Acts 1978, ch. 278, § 4, effective June 17, 1978; 1982, ch. 247, § 8, effective July 15, 1982.

NOTES TO DECISIONS

1.Homestead.

Upon death of patient, his homestead cannot be subjected to asylum’s claim for board because such claim is not a debt. Holburn v. Pfanmiller's Adm'r, 114 Ky. 831 , 71 S.W. 940, 24 Ky. L. Rptr. 1613 , 1903 Ky. LEXIS 47 ( Ky. 1903 ); Eastern State Hospital v. Cottle, 201 Ky. 377 , 256 S.W. 1101, 256 S.W. 1102, 1923 Ky. LEXIS 299 ( Ky. 1923 ) (decided under prior law).

210.740. Payment of charges by inter vivos trust where inheritance in excess of exemptions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 278, § 5, effective June 17, 1978) was repealed by Acts 1982, ch. 247, § 21, effective July 15, 1982.

210.750. Rules and regulations.

The secretary may adopt rules and regulations for carrying out the provisions of KRS 210.710 to 210.760 and for participation in federal programs.

History. Enact. Acts 1978, ch. 278, § 6, effective June 17, 1978.

210.760. Federal programs.

Nothing in KRS 210.710 to 210.760 shall be construed to preclude participation in federal programs.

History. Enact. Acts 1978, ch. 278, § 7, effective June 17, 1978.

Supported Living Services

210.770. Definitions for KRS 210.770 to 210.795.

As used in KRS 210.770 to 210.795 , unless the context otherwise requires:

  1. “Mental impairment” includes an intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities;
  2. “Person with a disability” means someone with a physical or mental impairment and includes individuals who have a record or history of an impairment, or are regarded as having a physical or mental impairment that substantially limits one (1) or more major life activities;
  3. “Physical impairment” means any physiological disorder or corrective, cosmetic disfigurement, or an anatomical loss affecting one (1) or more of the following body systems: neurological, musculo-skeletal, special sense organs, respiratory including speech organs, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine;
  4. “Substantial limitation of a major life activity” includes limiting such things as walking, talking, seeing, hearing, caring for oneself, or working;
  5. “Hart-Supported Living Program” means grants which provide a broad category of highly flexible, individualized services which, when combined with natural unpaid or other eligible paid supports, provide the necessary assistance to do the following:
    1. Provide the support necessary to enable a person who is disabled to live in a home of the person’s choice which is typical of those living arrangements in which persons without disabilities reside;
    2. Encourage the individual’s integrated participation in the community with persons who are members of the general citizenry;
    3. Promote the individual’s rights and autonomy;
    4. Enhance the individual’s skills and competences in living in the community; and
    5. Enable the individual’s acceptance in the community by promoting home ownership or leasing arrangements in the name of the individual or the individual’s family or guardian;
  6. “Hart-Supported Living Program” does not include any services that support the following arrangements:
    1. Segregated living models such as any housing situation which physically or socially isolates people with disabilities from general citizens of the community;
    2. Segregated programs or activities which physically or socially isolate people with disabilities from general citizens of the community;
    3. Congregate living models such as any housing situation which groups individuals with disabilities as an enclave within an integrated setting;
    4. Any model where the individual, as an adult, does not have maximum control of the home environment commensurate with the individual’s disabilities; and
    5. Any single living unit where more than three (3) people with disabilities live;
  7. “Hart-Supported Living Council” means a supported living council appointed by the Governor and recognized by the secretary; and
  8. “Hart-supported living services” include but are not limited to:
    1. Hart-supported living community resource developers;
    2. Homemaker services;
    3. Personal care services;
    4. In-home training and home management assistance;
    5. Start-up grants;
    6. Transportation;
    7. Home modifications;
    8. Adaptive and therapeutic equipment; and
    9. Facilitation by an independent and trained facilitator to develop and implement individualized life planning.

HISTORY: Enact. Acts 1992, ch. 261, § 1, effective July 14, 1992; 2006, ch. 81, § 1, effective July 12, 2006; 2012, ch. 146, § 95, effective July 12, 2012; 2012, ch. 158, § 41, effective July 12, 2012; 2015 ch. 117, § 1, effective June 24, 2015.

Legislative Research Commission Note.

(7/12/2012). This statute was amended by 2012 Ky. Acts chs. 146 and 158. Where these Acts are not in conflict, they have been codified together. Where a conflict exists, Acts ch. 146, which was last enacted by the General Assembly, prevails under KRS 446.250 .

210.775. Hart-Supported Living Council.

  1. There is hereby created the Hart-Supported Living Council for services to persons with a disability and their families.
    1. The Hart-Supported Living Council shall be composed of eleven (11) members. The secretary and the executive director of the Kentucky Housing Corporation or their designees shall be ex officio members. (2) (a) The Hart-Supported Living Council shall be composed of eleven (11) members. The secretary and the executive director of the Kentucky Housing Corporation or their designees shall be ex officio members.
    2. Nine (9) of the members shall be volunteers and shall be appointed by the Governor from a list of nominees in the following manner:
      1. Three (3) of the appointed members shall represent family members of persons with a disability;
      2. Two (2) of the appointed members shall be persons with a disability;
      3. One (1) of the appointed members shall represent professionals and providers of services to persons with a disability;
      4. One (1) of the appointed members shall represent advocates for persons with a disability; and
      5. Two (2) of the appointed members shall represent the community at large.
  2. The appointed members may serve on the council for three (3) years from the date of appointment. Members may be reappointed for one (1) additional consecutive three (3) year term. The Governor shall fill any vacancy occurring in the council in the manner prescribed in subsection (2) of this section.
  3. The cabinet shall provide staff assistance to the Hart-Supported Living Council.
  4. The chairman of the Hart-Supported Living Council shall be elected from among the members. A majority of the members shall constitute a quorum.
  5. The Hart-Supported Living Council shall meet as often as necessary but no less frequently than every other month.

HISTORY: Enact. Acts 1992, ch. 261, § 2, effective July 14, 1992; 1994, ch. 405, § 71, effective July 15, 1994; 2000, ch. 20, § 2, effective July 14, 2000; 2002, ch. 59, § 4, effective July 15, 2002; 2006, ch. 81, § 2, effective July 12, 2006; 2012, ch. 146, § 96, effective July 12, 2012; 2012, ch. 158, § 42, effective July 12, 2012; 2015 ch. 117, § 2, effective June 24, 2015.

Legislative Research Commission Note.

(7/12/2012). This statute was amended by 2012 Ky. Acts chs. 146 and 158. Where these Acts are not in conflict, they have been codified together. Where a conflict exists, Acts ch. 146, which was last enacted by the General Assembly, prevails under KRS 446.250 .

210.780. Duties of Hart-Supported Living Council.

  1. The Hart-Supported Living Council shall be responsible for making recommendations to the cabinet for:
    1. A budget and priorities for fund allocations for supported living services for persons with disabilities within the Commonwealth;
    2. Standards for quality assurance for persons with a disability who receive supported living services in accordance with KRS 210.770 to 210.795 ; and
    3. The procedure for annual review and approval of and funding recommendations for individual plans for Hart-Supported Living Program grants submitted by any person with a disability, and for the amendment of individual plans during a fiscal year.
  2. The Hart-Supported Living Council shall be responsible for:
    1. Disseminating information about Hart-Supported Living Program grants available under KRS 210.770 to 210.795 ;
    2. Hearing grievances and providing due process for consumers and providers of supported living services;
    3. Monitoring the overall effectiveness and quality of the program; and
    4. Developing recommendations for improvements.
  3. The Hart-Supported Living Council may recommend necessary administrative regulations under KRS Chapter 13A to carry out the purposes of KRS 210.770 to 210.795 .

HISTORY: Enact. Acts 1992, ch. 261, § 3, effective July 14, 1992; 2006, ch. 81, § 3, effective July 12, 2006; 2012, ch. 146, § 97, effective July 12, 2012; 2012, ch. 158, § 53, effective July 12, 2012; 2015 ch. 117, § 3, effective June 24, 2015.

Legislative Research Commission Note.

(7/12/2012). This statute was amended by 2012 Ky. Acts chs. 146 and 158. Where these Acts are not in conflict, they have been codified together. Where a conflict exists, Acts ch. 146, which was last enacted by the General Assembly, prevails under KRS 446.250 .

210.785. Regional supported living councils — Duties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1992, ch. 261, § 4, effective July 14, 1992) was repealed by Acts 2006, ch. 81, § 6, effective July 12, 2006.

210.790. Eligibility for services — Design — Payment.

  1. Only a person with a disability who is a resident of Kentucky or whose family or guardian is a resident of Kentucky is eligible to apply for a Hart-Supported Living Program grant. The person may be living with a family member, independently, or be in a congregate setting and be eligible to apply for a grant. If funded, the applicant must maintain Kentucky residency as a condition of receiving grant funds or for the duration of the grant.
  2. Any eligible person with a disability who wants to apply for a Hart-Supported Living Program grant may design and request a set of services in the amount, kind, frequency, and duration which is dependent upon the person’s individual needs, and is consistent with the definition of a Hart-Supported Living Program grant under KRS 210.770 .
  3. Payments for Hart-Supported Living Program grants may be made directly to the person with a disability to enable the person to purchase a service, to the guardian of the person with a disability, to a fiscal representative, to a service provider agency, or to any combination of these parties.
  4. A license shall not be required for any supported living housing arrangement provided on a contractual basis.

History. Enact. Acts 1992, ch. 261, § 5, effective July 14, 1992; 2006, ch. 81, § 4, effective July 12, 2006.

210.795. Standards for Hart-Supported Living Council living arrangements — Administrative regulations.

  1. The cabinet, in cooperation with the Hart-Supported Living Council, shall establish standards for the administration of the Hart-Supported Living Program. The purpose of these standards is to ensure that a person with a disability receives supported living services in a manner that empowers the person to exercise choice and enhances the quality of that person’s life. These standards shall promote the following:
    1. Choice over how, when, and by whom supports are provided and over where and with whom a person with a disability lives;
    2. Responsibility of the person with a disability and his or her representative for managing grants and the provision of supports under the grant;
    3. Freedom to live a meaningful life and to participate in activities in the community with members of the general citizenry;
    4. Enhancement of health and safety;
    5. Flexibility of services that change as the person’s needs change without the individual having to move elsewhere for services;
    6. Use of generic options and natural supports;
    7. Well-planned and proactive opportunities to determine the kinds and amounts of support desired, with the meaningful participation of the individual, the individual’s family or guardian where appropriate, friends, and professionals; and
    8. Home ownership or leasing with the home belonging to the person with a disability, that person’s family, or to a landlord to whom rent is paid.
  2. The individual supported living plan shall be developed by the person with a disability and that person’s family or guardian where appropriate, and, as appropriate, the proposed or current provider.
  3. The cabinet, in concert with the Hart-Supported Living Council, shall promulgate administrative regulations under KRS Chapter 13A, if necessary, to establish the methods of awarding Hart-Supported Living Program grants for individual supported living plans and monitoring the quality of service delivery, and to provide for administrative appeal of decisions. Administrative hearings conducted on appeals shall be conducted in accordance with KRS Chapter 13B.

HISTORY: Enact. Acts 1992, ch. 261, § 6, effective July 14, 1992; 1996, ch. 318, § 102, effective July 15, 1996; 2006, ch. 81, § 5, effective July 12, 2006; 2012, ch. 146, § 98, effective July 12, 2012; 2012, ch. 158, § 44, effective July 12, 2012; 2015 ch. 117, § 4, effective June 24, 2015.

Legislative Research Commission Note.

(7/12/2012). This statute was amended by 2012 Ky. Acts chs. 146 and 158. Where these Acts are not in conflict, they have been codified together. Where a conflict exists, Acts ch. 146, which was last enacted by the General Assembly, prevails under KRS 446.250 .

Penalties

210.990. Penalties.

  1. Any officer who violates KRS 210.110 shall be fined not less than five hundred dollars ($500) nor more than five thousand dollars ($5,000) and his office or appointment shall without further action be vacant.
  2. Any person who willfully violates KRS 210.130 or 210.220 shall be fined not less than twenty-five dollars ($25) nor more than one hundred dollars ($100).

History. Enact. Acts 1952, ch. 50, § 25; 1968, ch. 90, § 60; 1972, ch. 161, § 9; 1984, ch. 31, § 2, effective July 13, 1984; 1994, ch. 334, § 16, effective July 15, 1994.

210.991. Penalties.

Any person who willfully causes or conspires with or assists another in causing:

  1. The unwarranted hospitalization of any individual under the provisions of KRS Chapter 210; or
  2. The denial to any individual of any of the rights accorded to him under the provisions of KRS Chapter 210

shall be punished by a fine not exceeding five thousand dollars ($5,000) or imprisoned for a term not to exceed five (5) years or both.

History. Enact. Acts 1968, ch. 90, § 61; 1976, ch. 225, § 1; 1976, ch. 332, § 27.

Legislative Research Commission Note.

(1976). The amendment of this section by 1976 Ky. Acts ch. 332, § 27, was included as a part of 1976 Ky. Acts ch. 225, § 1, as enacted.

NOTES TO DECISIONS

1.Application.

Where defendant was indicted for violation of KRS 202.267 (repealed) and 202.269 (repealed) and there was nothing in KRS Chapter 202 (repealed) to indicate that these sections were penal statutes or that a provision in KRS Chapter 210 related to these sections, the indictment may be dismissed because the penalty provisions of these sections is so vague, indefinite and uncertain as to be unconstitutional insofar as having criminal application. Commonwealth v. Jones, 514 S.W.2d 690, 1974 Ky. LEXIS 330 ( Ky. 1974 ).

210.995. Penalty for taking patient from state hospital.

  1. Any person who takes a lawfully involuntarily hospitalized patient or resident from any state hospital without the consent of authorized staff physician, or who entices, assists or encourages any such patient or resident to escape, shall be fined not more than five hundred dollars ($500). The District Court of the county in which the escape was effected shall have jurisdiction.
  2. Any person who entices, assists, or encourages any patient or resident in a state hospital to leave the hospital for any unlawful purposes shall be imprisoned for not more than six (6) months or fined not more than five hundred dollars ($500) or both. The District Court of the county in which the escape was effected shall have jurisdiction.

History. 216aa-107a: amend. Acts 1968, ch. 90, § 62; 1976 (Ex. Sess.), ch. 14, § 203, effective January 2, 1978.

Compiler’s Notes.

This section was formerly compiled as KRS 432.490 .

Research References and Practice Aids

Kentucky Law Journal.

Lawson, Criminal Law Revision in Kentucky: Part II — Inchoate Crimes, 58 Ky. L.J. 695 (1970).

CHAPTER 211 State Health Programs

Cabinet for Health and Family Services

211.005. Declaration of legislative policy concerning public health laws.

The General Assembly of the Commonwealth of Kentucky recognizes and hereby declares that it is an essential function, duty and responsibility of the government of this Commonwealth to adequately safeguard the health of all its citizens, and to establish, maintain, implement, promote and conduct appropriate facilities and services for the purpose of protecting the public health. This chapter is enacted with the expressed legislative intention of effectuating the aforesaid objectives in the manner provided herein.

History. Enact. Acts 1954, ch. 157, § 1.

NOTES TO DECISIONS

1.Police Power.

Among the police powers of government, the power to promote and safeguard the public health ranks at the top and, if the right of an individual runs afoul of the exercise of this power, the right of the individual must yield. Graybeal v. McNevin, 439 S.W.2d 323, 1969 Ky. LEXIS 371 ( Ky. 1969 ).

2.Dental Hygiene.

The relation of dental hygiene to the health of the body generally is now so well recognized as to warrant judicial notice. Graybeal v. McNevin, 439 S.W.2d 323, 1969 Ky. LEXIS 371 ( Ky. 1969 ).

Research References and Practice Aids

Cross-References.

Alcoholism and drug abuse prevention and treatment, KRS Chapter 222.

Diseases, KRS Chapter 214.

Environmental protection, KRS Chapter 224.

Foods, drugs and poisons, KRS Chapters 217, 217B, 218A.

Frozen food locker plants, KRS Chapter 221.

Hospitals and clinics, KRS Chapters 215, 216.

Hotels, restaurants and trailer parks, KRS Chapter 219.

Local health units, KRS Chapter 212.

Medical practice, KRS Chapter 311.

Nurses, KRS Chapter 314.

Occupations and professions, KRS Title XXVI.

Pharmacists, KRS Chapter 315.

Physicians, KRS Chapter 311.

Sanitation districts, KRS Chapter 220.

Vital statistics, KRS Chapter 213.

Welfare, KRS Title XVII.

211.010. Department of Health — Functions. [Repealed.]

Compiler’s Notes.

This section (4618-21, 4618-108, 4618-109) was repealed by Acts 1954, ch. 157, § 2.

211.015. Definitions for KRS 211.005 to 211.380.

  1. As used in KRS 211.005 to 211.380 , unless the context requires otherwise:
    1. “Cabinet” means the Cabinet for Health and Family Services;
    2. “Farmstead” means a farm dwelling, together with other farm buildings and structures incident to the operation and maintenance of the farm, situated on ten (10) contiguous acres or more of land outside the corporate limits of a municipality:
      1. Used for the production of livestock, livestock products, poultry, poultry products, dairy, dairy products, or horticulture products or for the growing of crops such as, but not limited to, tobacco, corn, soybeans, and wheat. For purposes of this paragraph, “livestock” means cattle, sheep, swine, goats, horses, alpacas, llamas, buffaloes, or any other animals of the bovine, ovine, porcine, caprine, equine, or camelid species; or
      2. Where devoted to and meeting the requirements and qualifications for payments pursuant to agriculture programs under an agreement with the state or federal government;
    3. “Secretary” means the secretary of the Cabinet for Health and Family Services; and
    4. “Private water supply” means a residential water supply located on private property under the control of a person holding a possessory interest in the property, the use of which is limited to family members.
  2. As used in KRS 200.560 and 200.550 , unless the context otherwise requires:
    1. “Department” means Department for Public Health;
    2. “Commissioner” means the commissioner of the Department for Public Health;
    3. “Committee” means the Hemophilia Advisory Committee; and
    4. “Hemophilia” means a bleeding disorder resulting from a genetically determined deficiency factor in the blood, or hereditarily resulting in an abnormal or deficient plasma procoagulant.

HISTORY: Enact. Acts 1954, ch. 157, § 2; 1974, ch. 74, Art. VI, § 62; 1976, ch. 63, § 1; 1986, ch. 108, § 1, effective July 15, 1986; 1990, ch. 482, § 17, effective July 13, 1990; 1992, ch. 216, § 1, effective July 14, 1992; 1998, ch. 426, § 282, effective July 15, 1998; 2005, ch. 99, § 338, effective June 20, 2005; 2017 ch. 129, § 11, effective June 29, 2017.

211.020. Agencies included in the department of health — Branch offices. [Repealed.]

Compiler’s Notes.

This section (2054, 4618-22, 4618-23, 4618-108, 4618-109: amend. Acts 1954, ch. 157, § 3, effective June 17, 1954; 1972, ch. 302, § 1) was repealed by Acts 1974, ch. 74, Art. VI, § 108, effective June 21, 1974.

211.025. General powers and duties of cabinet.

Except as otherwise provided by law, the cabinet shall administer all provisions of law relating to public health; shall enforce all public health laws and all regulations of the secretary; shall supervise and assist all local boards of health and departments; shall do all other things reasonably necessary to protect and improve the health of the people; and may cooperate with federal and other health agencies and organizations in matters relating to public health.

History. Enact. Acts 1954, ch. 157, § 4; 1974, ch. 74, Art. VI, § 107(1).

NOTES TO DECISIONS

1.Police powers.

Regulations imposed on restaurants due to the Covid 19 pandemic were not arbitrary under this section because the Cabinet for Health and Family Services’s broad police powers for dealing with contagious diseases, Ky. Rev. Stat. Ann. § 211.180(1) and this section provided a rational basis for the face covering and the social distancing measure. Beshear v. Acree, 615 S.W.3d 780, 2020 Ky. LEXIS 405 ( Ky. 2020 ).

Opinions of Attorney General.

An ordinance adopted by the county fiscal court establishing a compulsory and continual solid waste collection and disposal system is a “public health law” as envisioned by this section and is enforceable by the county health department under KRS 212.240 . OAG 74-594 .

The bureau of health services (now Cabinet for Health and Family Services) must enforce an ordinance of a county fiscal court establishing a compulsory and continual solid waste collection and disposal system or it must supervise and assist the county health department in its enforcement of the ordinance. OAG 74-594 .

Research References and Practice Aids

Cross-References.

Blood test of pregnant women, duties of department of health as to, KRS 214.160 , 214.170 .

Department of mental health, cooperation with department of health, KRS 210.040 .

General powers of statutory departments, KRS Chapter 12.

Sanitation districts and water pollution control, KRS Chapter 220.

211.027. Rules and regulations relating to induced termination of pregnancy.

The Cabinet for Health and Family Services shall promulgate reasonable rules and regulations to effectuate the purposes of KRS 213.101 and 213.106 and KRS 311.710 to 311.810 , which shall be submitted to the Legislative Research Commission in a manner prescribed in KRS Chapter 13A; the Legislative Research Commission shall refer said rules and regulations to the Interim Committee on Health and Welfare for the purpose of approval or disapproval.

History. Enact. Acts 1974, ch. 255, § 15; 1990, ch. 369, § 34, effective July 13, 1990; 1998, ch. 426, § 283, effective July 15, 1998; 2005, ch. 99, § 339, effective June 20, 2005.

Legislative Research Commission Note.

(10/5/90). Pursuant to KRS 7.136(1), KRS Ch. 13A has been substituted for the prior reference to KRS Ch. 13 in this statute. The sections in KRS Ch. 13 were repealed by 1984 Ky. Acts ch. 417, § 36 and KRS Ch. 13A was created in that same chapter of the 1984 Ky. Acts.

211.030. Commissioner of health — Selection — Term — Qualifications — Removal. [Repealed.]

Compiler’s Notes.

This section (2047, 2052, 2054, 4618-23, 4618-152: amend. Acts 1946, ch. 27, § 32; 1954, ch. 157, § 5; 1972, ch. 302, § 2) was repealed by Acts 1974, ch. 74, Art. VI, § 108, effective June 21, 1974.

211.035. Deputy commissioners — Acting commissioner. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 157, § 6) was repealed by Acts 1974, ch. 74, Art. VI, § 108.

211.040. State board of health — Members — Qualifications — How selected. [Repealed.]

Compiler’s Notes.

This section (2047, 2613-2, 4618-24: amend. Acts 1950, ch. 111; 1960, ch. 7) was repealed by Acts 1972, ch. 302, § 9.

211.041. State board of health — Members — Qualifications — How selected. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 302, § 3) was repealed by Acts 1974, ch. 74, Art. VI, § 108, effective June 21, 1974.

211.050. Terms of board members — Vacancies. [Repealed.]

Compiler’s Notes.

This section (2048, 4618-24: amend. Acts 1948, ch. 222, § 3; 1950, ch. 203) was repealed by Acts 1972, ch. 302, § 9.

211.051. Terms of board members. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 302, § 4) was repealed by Acts 1974, ch. 74, Art. VI, § 108, effective June 21, 1974.

211.060. Meetings — Quorum — President — Rules — Oaths. [Repealed.]

Compiler’s Notes.

This section (2047, 2050: amend. Acts 1952, ch. 153, § 1; 1972, ch. 302, § 5) was repealed by Acts 1974, ch. 74, Art. VI, § 108, effective June 21, 1974.

211.070. Compensation of members of board. [Repealed.]

Compiler’s Notes.

This section (2051, 2053, 2613-1: amend. Acts 1952, ch. 153, § 2; 1972, ch. 302, § 6) was repealed by Acts 1974, ch. 74, Art. VI, § 108, effective June 21, 1974.

211.080. Powers and duties of commissioner of health. [Repealed.]

Compiler’s Notes.

This section (2047, 2052: amend. Acts 1972, ch. 302, § 7) was repealed by Acts 1974, ch. 74, Art. VI, § 108, effective June 21, 1974.

211.090. Powers and duties of secretary.

The secretary shall:

  1. Appoint county and district boards of health pursuant to KRS 212.020 and 212.850 ;
  2. Hear and decide appeals from rulings, decisions and actions of the cabinet, where the aggrieved party makes written request therefor to the secretary within thirty (30) days after the ruling, decision or action complained of;
  3. Adopt rules and regulations necessary to regulate and control all matters set forth in KRS 211.180 to the extent the regulation and control of same have not been delegated to some other agency of the Commonwealth and adopt such other rules and regulations as may be necessary to effectuate the purposes of this chapter and any other law relating to public health, except as otherwise provided by law;
  4. Issue or deny hospital licenses;
  5. Approve or disapprove the establishment of proposed hospital service corporations and contracts for hospital service corporations and contracts for hospital services pursuant to KRS 304.32-030 ;
  6. Approve or disapprove of the establishment of proposed medical service plan corporations and contract for medical services pursuant to KRS 304.32-050 , 304.32-140 , and 304.32-160 ;
  7. Enforce the provisions of KRS 311.250 , 311.260 , 311.375 , 311.376 .

History. 2049, 2050, 2054, 2062a-1: amend. Acts 1954, ch. 157, § 7; 1972, ch. 203, § 44(1); 1972, ch. 302, § 8; 1974, ch. 74, Art. VI, § 63; 1980, ch. 188, § 203, effective July 15, 1980.

NOTES TO DECISIONS

1.Police Powers.

Among the police powers of government, the power to promote and safeguard the public health ranks at the top and, if the right of an individual runs afoul of the exercise of this power, the right of the individual must yield. Graybeal v. McNevin, 439 S.W.2d 323, 1969 Ky. LEXIS 371 ( Ky. 1969 ).

2.Board Members.

Members of state board of health are state officers with fixed terms, jurisdiction and duties. City of Bardstown v. Nelson County, 78 S.W. 169, 25 Ky. L. Rptr. 1478 (1904).

3.Vaccination.

State board would be authorized to direct that all children attending certain public schools be vaccinated or denied privilege of attending school, where evidence justified reasonable apprehension of outbreak of smallpox and that vaccination was only means of prevention. Board of Trustees v. McMurtry, 169 Ky. 457 , 184 S.W. 390, 1916 Ky. LEXIS 720 ( Ky. 1916 ).

4.Review of Regulations.

The court had to look to the facts in the record and the facts before the board when it adopted the regulation to determine whether the finding of the trial court of arbitrariness was “clearly erroneous.” Graybeal v. McNevin, 439 S.W.2d 323, 1969 Ky. LEXIS 371 ( Ky. 1969 ).

The general rule of judicial review may not apply with equal force to a regulation by an agency composed of specialists in an area in which the courts must acknowledge a limited understanding. Graybeal v. McNevin, 439 S.W.2d 323, 1969 Ky. LEXIS 371 ( Ky. 1969 ).

Where the plaintiff claimed that the regulation in question was arbitrary, the burden was on the plaintiff to show that the regulation had no reasonable basis in fact or had no reasonable relation to the protection of the public health. Graybeal v. McNevin, 439 S.W.2d 323, 1969 Ky. LEXIS 371 ( Ky. 1969 ).

5.— Injunction.

Where the plaintiff failed to prove that a regulation providing for the fluoridation of public water supplies was arbitrary, it was error for the trial court to grant an injunction. Graybeal v. McNevin, 439 S.W.2d 323, 1969 Ky. LEXIS 371 ( Ky. 1969 ).

Opinions of Attorney General.

The only manner in which district boards of health may be created is by the fiscal courts of the particular counties as provided by KRS 212.840 . OAG 74-700 .

The power and authority previously vested in the state board of health is now vested in the secretary for human resources. OAG 74-700 .

Research References and Practice Aids

Cross-References.

Annual report from Louisville and Jefferson County Board of Health, KRS 212.570 .

Attorneys to represent Cabinet for Health and Family Services, KRS 212.270 .

Audit of books of Louisville and Jefferson County Board of Health, KRS 212.550 .

Compensation of county health officer, participation in fixing of, KRS 212.190 .

Health facilities and services, licensure and regulation, KRS 216B.010 to 216B.990 .

Labor inspectors to report health violations, KRS 336.090 .

Nonprofit hospital, medical-surgical, dental and health service corporations, KRS 304.32-010 et seq.

Podiatry, official examiners in, appointment, KRS 311.410 .

Powers and duties of state board of health as to:

Births and deaths, KRS Chapter 213.

Communicable diseases, KRS Chapter 214.

Foods and drugs, KRS Chapter 217.

Immunization of children, KRS 214.034 .

Local health boards, KRS Chapter 212.

Plumbers and plumbing, KRS Chapter 318.

Practitioners of medicine generally, KRS Chapter 311.

Tuberculosis, KRS Chapter 215.

Visiting nurses, KRS 314.470.

211.100. Divisions of department of health. [Repealed.]

Compiler’s Notes.

This section (2054: amend. Acts 1954, ch. 157, § 8; 1966, ch. 255, § 205) was repealed by Acts 1972, ch. 302, § 9.

211.101. Directors of divisions — Grouping of subdivision of divisions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 157, § 9) was repealed by Acts 1972, ch. 302, § 9.

211.102. Functions of divisions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 157, § 10) was repealed by Acts 1972, ch. 302, § 9.

211.105. Division of medical hospitals and related services. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 189, § 1) was repealed by Acts 1954, ch. 157, § 24.

211.106. Division of medical care. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 68, Art. VII, § 9) was repealed by Acts 1974, ch. 74, Art. VI, § 108, effective June 21, 1974.

211.110. Laboratory work for State Board of Health by experiment station of University of Kentucky. [Repealed.]

Compiler’s Notes.

This section (2060a-12) was repealed by Acts 1954, ch. 157, § 24, effective June 17, 1954.

211.120. Director of laboratories — Assistants. [Repealed.]

Compiler’s Notes.

This section (2060a-13) was repealed by Acts 1954, ch. 157, § 24, effective June 17, 1954.

211.125. Educational materials regarding female genital mutilation.

  1. As used in this section, “female genital mutilation” has the same meaning as in KRS 508.125 .
  2. The Department for Public Health in the Cabinet for Health and Family Services shall:
    1. Develop and produce educational materials regarding female genital mutilation, the health risks and emotional trauma inflicted by the practice of female genital mutilation, and the criminal penalties for female genital mutilation; and
    2. Disseminate the educational material produced under paragraph (a) of this subsection to health care providers, teachers, law enforcement personnel, immigration and refugee resettlement agencies, and any other professionals or community entities who may reasonably be expected to come into contact with individuals who may be at risk of suffering female genital mutilation.
  3. The department may consult or contract with nonprofit organizations to develop and produce the educational materials required by subsection (2) of this section.

HISTORY: 2020 ch. 74, § 2, effective April 2, 2020.

211.130. Definitions for KRS 211.130 to 211.160.

As used in KRS 211.130 to 211.160 , unless the context requires otherwise:

  1. “Cabinet” shall mean the Cabinet for Health and Family Services;
  2. “Secretary” shall mean the secretary for health and family services;
  3. “An individual with a severe physical disability” shall mean a person who has a severe physical disability as a result of cerebral palsy, poliomyelitis, muscular dystrophy, or spina bifida;
  4. “Educable person” shall mean an individual with a severe physical disability, as defined above, who is determined by the cabinet to be capable of receiving and benefiting from the services and facilities provided by KRS 211.130 to 211.160 ;
  5. “Funds” shall mean all moneys received by the cabinet from all persons, corporations, associations, organizations, and state or federal government agencies, specifically designated to be used for furnishing facilities and services for educable persons; provided, however, that no moneys appropriated to the cabinet by the General Assembly of this Commonwealth shall be considered to have been appropriated for establishing, providing, or maintaining services or facilities for educable persons, unless the act appropriating such moneys expressly so provides.

History. Enact. Acts 1952, ch. 165, § 1; 1974, ch. 74, art. VI, § 107(1), (2), (11), (21); 1994, ch. 405, § 72, effective July 15, 1994; 1998, ch. 426, § 284, effective July 15, 1998; 2005, ch. 99, § 340, effective June 20, 2005.

211.140. Declaration of legislative purpose.

The purpose of KRS 211.130 to 211.160 is to provide for the acceptance, custody, and use, by the Commonwealth of Kentucky, of funds and properties that may be given, granted, contributed, donated, bequeathed, devised, and conveyed for the hospitalization, training, education, and care of individuals with severe physical disabilities, including grants that may be made for said purposes by the government of the United States of America.

History. Enact. Acts 1952, ch. 165, § 2, effective June 19, 1952; 1994, ch. 405, § 73, effective July 15, 1994.

211.150. Facilities and services for persons with severe physical disabilities who are educable.

To the extent that funds are made available, the cabinet may establish, provide, and maintain facilities and services, including hospital-schools and related medical and nursing care, and vocational, academic, and recreational training, instruction, and education, for individuals with severe physical disabilities who are, in the judgment of the cabinet, found to be educable after examination and diagnosis conducted in accordance with procedures prescribed by the cabinet.

History. Enact. Acts 1952, ch. 165, § 3, effective June 19, 1952; 1994, ch. 405, § 74, effective July 15, 1994.

211.160. Powers of secretary of the cabinet in providing service to handicapped persons.

  1. The secretary for health and family services may, from the funds available, employ, by contract or otherwise such medical, clinical, technical, and other personnel that he deems necessary to effectuate the purposes of KRS 211.130 to 211.160 , and fix and pay their compensation and necessary traveling expenses.
  2. The secretary for health and family services may, from the funds available, procure, by purchase or lease or otherwise, such property, equipment, services, facilities, and supplies that he deems necessary to effectuate the purposes of KRS 211.130 to 211.160 .
  3. The secretary for health and family services is authorized to accept, on behalf of the Commonwealth of Kentucky, all gifts, donations, contributions, grants, devises, bequests, and conveyances of real and personal property for establishing, providing, and maintaining the services and facilities described in KRS 211.150 , subject only to the condition that same shall be devoted to and used for said purposes. All funds received by the secretary for health and family services shall be deposited in the State Treasury and credited to a trust and agency fund account and expended only for purposes authorized by KRS 211.130 to 211.160 .
  4. The secretary for health and family services may make and issue all necessary rules and regulations to carry out KRS 211.130 to 211.160 ; provided, however, that no educable person shall be eligible for any benefits hereunder unless he is, and has been continuously for at least twelve (12) months immediately preceding the date of his application therefor, an actual resident of this state.
  5. The secretary for health and family services may delegate to any division of the cabinet, or to any director thereof, any and all of his authority and duties hereunder.
  6. Upon request of the secretary for health and family services, approved in writing by the Governor, any cabinet, agency, or commission of the Commonwealth shall furnish without cost to the cabinet such services, facilities, and assistance as are available and, in the judgment of the secretary for health and family services and the Governor, required, to effectuate the purposes of KRS 211.130 to 211.160 or its administration which is hereby vested in the cabinet.

History. Enact. Acts 1952, ch. 165, § 4, effective June 19, 1952; 1974, ch. 74, Art. VI, § 107(16); 1998, ch. 426, § 285, effective July 15, 1998; 2005, ch. 99, § 341, effective June 20, 2005.

211.165. Program for repayment of educational loans for primary health-care professionals who agree to serve in federally designated health professional shortage areas.

The Cabinet for Health and Family Services shall establish a loan repayment program to repay educational loans for primary health-care professionals who agree to serve in federally designated health professional shortage areas. The program shall:

  1. Apply for federal funds for the program under the Public Health Service Act (42 U.S.C. sec. 254 g-1);
  2. Make payments of qualifying educational loans of health professionals agreeing to provide primary health services in federally designated health professional shortage areas;
  3. Assign health professionals only to public and private nonprofit entities;
  4. Enter into contracts with participants with remedies for breach of contract by the health professional; and
  5. Make available nonfederal contributions towards contracts with individual health professionals in an amount not less than one dollar ($1) for each one dollar ($1) of federal funds provided. In meeting this matching fund requirement, the state shall provide fifty percent (50%) of the state’s share from state funds, and the remaining fifty percent (50%) shall be provided from local governments or other community-based resources from the area in which the health professional will be serving.

History. Enact. Acts 1994, ch. 512, Part 1, § 115, effective July 15, 1994; 1998, ch. 426, § 286, effective July 15, 1998; 2005, ch. 99, § 342, effective June 20, 2005.

Research References and Practice Aids

Northern Kentucky Law Review.

Costich, The Kentucky Health Reform Act, 22 N. Ky. L. Rev. 381 (1995).

211.170. Functions of cabinet relating to local health departments.

In relation to local health departments, the cabinet shall, among other things:

  1. Establish policies governing the activities and practices of such departments;
  2. Supervise their financial, personnel, program, administrative and other functions;
  3. Establish standards of operation in accordance with KRS 212.120 ;
  4. Evaluate the organization and activities of local health departments;
  5. Conduct state and district conferences for local health officers and local health department personnel;
  6. Allocate, modify or cancel allotments of state funds to local health departments pursuant to KRS 212.120 ; and
  7. Promote the establishment of local health departments.

History. Enact. Acts 1954, ch. 157, § 11, effective June 17, 1954.

Opinions of Attorney General.

The state Department of Health (now Cabinet for Health and Family Services), acting through its commissioner (now secretary), is statutorily empowered to set the qualifications to be met by officers and employees of county health departments. OAG 64-425 .

The state Department of Health (now Cabinet for Health and Family Services) has the statutory authority to establish mandatory retirement restrictions for county health department employees. OAG 64-425 .

Where county health funds were turned over to the state health department (now Cabinet for Health and Family Services) and employees of the county health department were paid by the state health department, an attempt by the fiscal court to pay a health department employee $15 a month extra out of the county general fund was illegal. OAG 66-137 .

A local health department could engage in a contract with the Falls Region Health Council, Inc., for health planning services to be performed by the corporation for the benefit of the particular county health department, but such contract would be subject to the approval of the state Department of Health (now Cabinet for Health Services). OAG 69-561 .

The Cabinet for Health Services (now Health and Family Services) has full statutory authority to establish a policy requiring a local health department to perform accounting and payroll functions through a centralized system operated by the Cabinet. OAG 92-8 .

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. I, G, 5, (3) at 884.

211.1751. Definitions for KRS 211.1751 to 211.1755.

As used in KRS 211.1751 to 211.1755 :

  1. “Agency” means a local health department established pursuant to the provisions of KRS Chapter 212, excluding a health department in a county containing a city of the first class, a consolidated local government, an urban-county health department, or an independent district health department.
  2. “Classification plan” means the system of classes and job descriptions, and the process for the installation and maintenance of the classification plan.
  3. “Compensation plan” means a series of salary ranges to which classes of positions are assigned so that classifications evaluated as approximately equal may be assigned to the same salary range.
  4. “Council” means the Local Health Department Employment Personnel Council created in KRS 211.1752 .
  5. “Department” means the Department for Public Health within the Cabinet for Health and Family Services.

History. Enact. Acts 1994, ch. 336, § 1, effective July 15, 1994; 1998, ch. 426, § 287, effective July 15, 1998; 2002, ch. 346, § 201, effective July 15, 2002; 2005, ch. 99, § 343, effective June 20, 2005.

211.1752. Local Health Department Employment Personnel Council.

  1. The Local Health Department Employment Personnel Council is hereby created. The council shall be composed of five (5) members appointed by the secretary for health and family services.
  2. Members of the council shall serve for a term of three (3) years or until successors are appointed, except that for members of the initially appointed council, two (2) members shall be appointed for one (1) year, two (2) members shall be appointed for two (2) years, and one (1) member shall be appointed for three (3) years. A member appointed to fill a vacancy occurring prior to the expiration of the term shall be appointed for the remainder of the term.
  3. The council shall elect a chairperson from its membership. Regular meetings of the council shall be held at least semiannually. Special meetings of the council may be held upon call of the chairperson or the department.
  4. The council shall be attached to the department for administrative purposes.
  5. The council shall:
    1. Advise the cabinet on administration of the local health department personnel program pursuant to KRS Chapter 212;
    2. Make an annual report to the department and agency; and
    3. Consider and act upon matters that may be referred to the council by the department.

History. Enact. Acts 1994, ch. 336, § 2, effective July 15, 1994; 1996, ch. 318, § 103, effective July 15, 1996; 1998, ch. 426, § 288, effective July 15, 1998; 2005, ch. 99, § 344, effective June 20, 2005; 2020 ch. 36, § 19, effective July 15, 2020.

211.1755. Merit system for local health department personnel.

  1. The cabinet shall administer a personnel program for local health departments based on the principles of merit governing the recruitment, examination, appointment, discipline, removal, and other incidents of employment for county, city-county, and district agencies.
  2. The cabinet shall establish policies and procedures for the personnel program through the promulgation of administrative regulations pursuant to KRS Chapter 13A.
  3. The administrative regulations promulgated by the cabinet governing the personnel program shall include the following:
    1. Personnel policies for the governance of all agency employees, which shall include, but not be limited to, the following areas of personnel administration:
      1. Leave policies;
      2. Salary, wage, and price policy and administration;
      3. Conditions of employment;
      4. Conditions of termination;
      5. Fringe benefits;
      6. Employee grievance procedure;
      7. Employee performance evaluations;
      8. Staff development, and continuing education requirements; and
      9. Method of salary increments.
    2. A classification plan based upon the duties and responsibilities assigned to each classification, which shall include for each classification an appropriate title, description of duties and responsibilities, required education and experience, and other qualifications at the discretion of the cabinet.
    3. A compensation plan which provides salary ranges for the various classifications of the classification plan commensurate with the duties and responsibilities of the classification within budgetary limitations.
    4. The recruitment of applicants, the determination of eligibility of applicants, the appropriate examination for applicants, and the provision of a list of qualified individuals for employment with an agency.

History. Enact. Acts 1994, ch. 336, § 3, effective July 15, 1994.

211.180. Functions of cabinet in the regulation of certain health matters — Inspection fees — Hearing.

  1. The cabinet shall enforce the administrative regulations promulgated by the secretary of the Cabinet for Health and Family Services for the regulation and control of the matters set out below and shall formulate, promote, establish, and execute policies, plans, and comprehensive programs relating to all matters of public health, including but not limited to the following matters:
    1. Detection, prevention, and control of communicable diseases, chronic and degenerative diseases, dental diseases and abnormalities, occupational diseases and health hazards peculiar to industry, home accidents and health hazards, animal diseases which are transmissible to man, and other diseases and health hazards that may be controlled;
    2. The adoption of regulations specifying the information required in and a minimum time period for reporting a sexually transmitted disease. In adopting the regulations the cabinet shall consider the need for information, protection for the privacy and confidentiality of the patient, and the practical ability of persons and laboratories to report in a reasonable fashion. The cabinet shall require reporting of physician-diagnosed cases of acquired immunodeficiency syndrome based upon diagnostic criteria from the Centers for Disease Control and Prevention of the United States Public Health Service. No later than October 1, 2004, the cabinet shall require reporting of cases of human immunodeficiency virus infection by reporting of the name and other relevant data as requested by the Centers for Disease Control and Prevention and as further specified in KRS 214.645 . Nothing in this section shall be construed to prohibit the cabinet from identifying infected patients when and if an effective cure for human immunodeficiency virus infection or any immunosuppression caused by human immunodeficiency virus is found or a treatment which would render a person noninfectious is found, for the purposes of offering or making the cure or treatment known to the patient;
    3. The control of insects, rodents, and other vectors of disease; the safe handling of food and food products; the safety of cosmetics; the control of narcotics, barbiturates, and other drugs as provided by law; the sanitation of schools, industrial establishments, and other public and semipublic buildings; the sanitation of state and county fairs and other similar public gatherings; the sanitation of public and semipublic recreational areas; the sanitation of public rest rooms, trailer courts, hotels, tourist courts, and other establishments furnishing public sleeping accommodations; the review, approval, or disapproval of plans for construction, modification, or extension of equipment related to food-handling in food-handling establishments; the licensure of hospitals; and the control of other factors, not assigned by law to another agency, as may be necessary to insure a safe and sanitary environment;
    4. The construction, installation, and alteration of any on-site sewage disposal system, except for a system with a surface discharge;
    5. Protection and improvement of the health of expectant mothers, infants, preschool, and school-age children; and
    6. Protection and improvement of the health of the people through better nutrition.
    1. The secretary shall have authority to establish by regulation a schedule of reasonable fees. The total fees for permitting and inspection: (2) (a) The secretary shall have authority to establish by regulation a schedule of reasonable fees. The total fees for permitting and inspection:
      1. Shall be the total of the operational and administrative costs of the programs to the cabinet and to agencies as defined in KRS 211.185 ;
      2. Beginning on March 17, 2020, until December 31, 2020, shall not increase more than twenty-five percent (25%) of the fee amount on March 17, 2020; and
      3. Beginning on or after January 1, 2021, shall not increase more than five percent (5%) for each year thereafter.
    2. The fees shall include travel pursuant to state regulations for travel reimbursement, to cover the costs of inspections of manufacturers, retailers, and distributors of consumer products as defined in the Federal Consumer Product Safety Act, 15 U.S.C. secs. 2051 et seq.; 86 Stat. 1207 et seq. or amendments thereto, and of youth camps for the purpose of determining compliance with the provisions of this section and the regulations adopted by the secretary pursuant thereto.
    3. Fees collected by the secretary shall be deposited in the State Treasury and credited to a revolving fund account for the purpose of carrying out the provisions of this section. The balance of the account shall lapse to the general fund at the end of each biennium.
  2. Any administrative hearing conducted under authority of this section shall be conducted in accordance with KRS Chapter 13B.

History. Enact. Acts 1954, ch. 157, § 12, effective June 17, 1954; 1972 (1st Ex. Sess.) ch. 3, § 29; 1974, ch. 74, Art. VI, § 107(17); 1976, ch. 299, § 42; 1978, ch. 117, § 18, effective February 28, 1980; 1982, ch. 247, § 9, effective July 15, 1982; 1982, ch. 392, § 5, effective July 15, 1982; 1990, ch. 443, § 44, effective July 13, 1990; 1996, ch. 318, § 104, effective July 15, 1996; 1998, ch. 426, § 289, effective July 15, 1998; 2000, ch. 432, § 2, effective July 14, 2000; 2004, ch. 102, § 1, effective July 13, 2004; 2005, ch. 99, § 345, effective June 20, 2005; 2018 ch. 136, § 7, effective July 1, 2019; 2019 ch. 104, § 10, effective July 1, 2019; 2020 ch. 21, § 5, effective March 17, 2020.

NOTES TO DECISIONS

1.Police Powers.

Among the police powers of government, the power to promote and safeguard the public health ranks at the top and, if the right of an individual runs afoul of the exercise of this power, the right of the individual must yield. Graybeal v. McNevin, 439 S.W.2d 323, 1969 Ky. LEXIS 371 ( Ky. 1969 ).

Regulations imposed on restaurants due to the COVID-19 pandemic were not arbitrary under this section because the Cabinet for Health and Family Services’ broad police powers for dealing with contagious diseases, Ky. Rev. Stat. Ann. § 211.025 and this section provided a rational basis for the face covering and the social distancing measure. Beshear v. Acree, 615 S.W.3d 780, 2020 Ky. LEXIS 405 ( Ky. 2020 ).

2.Swimming Pools.

Although state and local administrative agencies have authority to promulgate regulations applicable to swimming pools owned by landlords for the use of tenants which are within the general area of public health and safety, not all regulations are necessarily valid as to such owners. Adams, Inc. v. Louisville & Jefferson County Board of Health, 439 S.W.2d 586, 1969 Ky. LEXIS 374 ( Ky. 1969 ).

It is immaterial whether a pool is open to all members of the public or a special segment thereof, for it is the health welfare of the community which is significant in the exercise of the police power. Adams, Inc. v. Louisville & Jefferson County Board of Health, 439 S.W.2d 586, 1969 Ky. LEXIS 374 ( Ky. 1969 ).

Regulations applying to all pool owners requiring an attendant to check bathers for showers, requiring separate entrances and exits for men and women and requiring each bather to pass through a communal shower room before entering the pool was too broad and therefore invalid. Adams, Inc. v. Louisville & Jefferson County Board of Health, 439 S.W.2d 586, 1969 Ky. LEXIS 374 ( Ky. 1969 ).

Regulations pertaining to safety requirements were not invalid on the ground that the legislature or the administrative agencies lacked the police power to prescribe reasonable health and safety rules encompassing pools built by landlords for the use of their tenants. Adams, Inc. v. Louisville & Jefferson County Board of Health, 439 S.W.2d 586, 1969 Ky. LEXIS 374 ( Ky. 1969 ).

The question of authority to regulate swimming pools is not determined by whether a pool is public or private but whether, from the standpoint of health and safety, there is a recognizable public interest in their operation which would justify the exercise of the police power of regulation. Adams, Inc. v. Louisville & Jefferson County Board of Health, 439 S.W.2d 586, 1969 Ky. LEXIS 374 ( Ky. 1969 ).

While all swimming pools may present some common health hazards which would reasonably require the same regulatory safeguards, in certain areas the dissimilarity in prevailing conditions would make the application of a single standard inappropriate, unrealistic and unreasonable. Adams, Inc. v. Louisville & Jefferson County Board of Health, 439 S.W.2d 586, 1969 Ky. LEXIS 374 ( Ky. 1969 ).

3.— For Use of Tenants.

Swimming pools owned by landlords for the use of tenants do not fall within the definition of private pools because, if the tenant is classified as the homeowner, the apartment pool does not fall within the definition because it is not under the tenant’s control. Adams, Inc. v. Louisville & Jefferson County Board of Health, 439 S.W.2d 586, 1969 Ky. LEXIS 374 ( Ky. 1969 ).

4.— Lifeguard.

Where a regulation required that a lifeguard be on duty at all times that pool was available for use, as applied to all pools the burden of the regulation greatly outweighed the reasonably necessary safety objective sought and the regulation was invalid. Adams, Inc. v. Louisville & Jefferson County Board of Health, 439 S.W.2d 586, 1969 Ky. LEXIS 374 ( Ky. 1969 ).

5.Secretary's Authority.

While the statute designates particular areas of control, it provides that the board’s (now secretary’s) authority is not limited to those specified. Adams, Inc. v. Louisville & Jefferson County Board of Health, 439 S.W.2d 586, 1969 Ky. LEXIS 374 ( Ky. 1969 ).

6.Dental Hygiene.

The relation of dental hygiene to the health of the body generally is now so well recognized as to warrant judicial notice. Graybeal v. McNevin, 439 S.W.2d 323, 1969 Ky. LEXIS 371 ( Ky. 1969 ).

7.Review of Regulations.

The court had to look to the facts in the record and the facts before the board (now secretary) when it adopted the regulation to determine whether the finding of the trial court of arbitrariness was “clearly erroneous.” Graybeal v. McNevin, 439 S.W.2d 323, 1969 Ky. LEXIS 371 ( Ky. 1969 ).

The general rule of judicial review may not apply with equal force to a regulation by an agency composed of specialists in an area in which the courts must acknowledge a limited understanding. Graybeal v. McNevin, 439 S.W.2d 323, 1969 Ky. LEXIS 371 ( Ky. 1969 ).

Where the plaintiff claimed that the regulation in question was arbitrary, the burden was on the plaintiff to show that the regulation had no reasonable basis in fact or had no reasonable relation to the protection of the public health. Graybeal v. McNevin, 439 S.W.2d 323, 1969 Ky. LEXIS 371 ( Ky. 1969 ).

8.Midwives.

The requirement that a midwife be licensed, and to obtain that license must be a nurse, is rationally related to the objective of promoting the health of the woman and the infant assisted and such regulation is not an invalid exercise of the authority conferred upon the Cabinet for Health Services by the statute. Watson v. Kentucky Bd. of Nursing, 37 S.W.3d 788, 2000 Ky. App. LEXIS 106 (Ky. Ct. App. 2000).

Cited:

Clair v. N. Ky. Indep. Health Dist., 504 F. Supp. 2d 206, 2006 U.S. Dist. LEXIS 67163 (E.D. Ky. 2006 ).

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. I, G, 5, (3) at 884.

211.182. Treatment of cancer restricted to physicians.

  1. For the purposes of this section, “cancer” means all malignant neoplasms regardless of the tissue of origin, including malignant lymphoma and leukemia.
  2. No person, other than a licensed medical or osteopathic physician, or dentist, shall in any manner hold himself out to any other person as being able to prescribe treatment for, or cure the disease of cancer.
  3. No person, other than a licensed medical or osteopathic physician, or dentist, shall in any manner undertake to treat, or prescribe for the treatment of the disease of cancer.
  4. No person shall sell or offer to sell, or give away or offer to give away, except upon the prescription of a licensed medical or osteopathic physician, or dentist, any drug, medicine, compound, nostrum or device which is represented by the manufacturer or seller thereof to have curative powers when used in the treatment of the disease of cancer.
  5. Nothing contained herein shall be construed to impose any limitation upon the free exercise of religion in this state.

History. Enact. Acts 1960, ch. 47, §§ 1-4, 6, effective June 15, 1960.

211.184. Enforcement of KRS 211.182 by cabinet and secretary of the Cabinet for Health and Family Services.

  1. It shall be the duty of the cabinet to enforce the provisions of KRS 211.182 , and for that purpose the investigators, inspectors, representatives, and agents of the secretary of the Cabinet for Health and Family Services and the cabinet shall have the full power and authority of peace officers in this state, and shall have the power and authority to administer oaths, to enter upon premises at all times for the purpose of making inspections, to seize evidence, to interrogate all persons, and to require the production of books, papers, documents, or other evidence.
  2. The secretary of the Cabinet for Health and Family Services may institute, in his own name, proceedings to enjoin and restrain violations of KRS 211.182 , regardless of whether the defendant has been convicted of violation of the penal provisions thereof, and shall not be required to pay any costs or filing fees or furnish any bond in connection therewith. Violation of injunctions and restraining orders shall be punished as a contempt without the intervention of a jury.

History. Enact. Acts 1960, ch. 47, § 5, effective June 16, 1960; 1974, ch. 74, Art. VI, § 107(17); 1980, ch. 188, § 204, effective July 15, 1980; 1998, ch. 426, § 290, effective July 15, 1998; 2005, ch. 99, § 346, effective June 20, 2005.

NOTES TO DECISIONS

Cited:

Levisa Stone Corp. v. Hays, 429 S.W.2d 413, 1968 Ky. LEXIS 753 , 33 A.L.R.3d 581 ( Ky. 1968 ).

211.185. Definitions for KRS 211.185 to 211.187.

As used in KRS 211.185 to 211.187 :

  1. “Agency” means a local health department established in any county in the Commonwealth pursuant to KRS Chapter 212, including a health department in a county containing a city of the first class, a health department in a county with a consolidated local government, an urban-county health department, an independent district health department, or a district health department;
  2. “Cabinet” means the Cabinet for Health and Family Services;
  3. “Commissioner” means the commissioner of the Department for Public Health within the Cabinet for Health and Family Services;
  4. “Core public health programs” means all foundational public health programs as defined in this section and services that may include but are not limited to the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) provided by the federal Food and Nutrition Service, the Health Access Nurturing Development Services (HANDS) program established in KRS 211.690 , and substance use disorder harm reduction services;
  5. “Department” means the Department for Public Health within the Cabinet for Health and Family Services;
  6. “Foundational public health programs” means those services required by the Kentucky Revised Statutes, including but not limited to activities and service programs that prevent and mitigate disease, protect people from injury, promote healthy lifestyles across all environments, promote population health services, enforce Kentucky administrative regulations, ensure emergency preparedness and response, monitor and mitigate communicable disease, and provide the administrative and organizational infrastructure to deliver services;
  7. “Foundational public health service provider” means an individual who is employed by an agency that provides a foundational public health program service;
  8. “Harm reduction services” means a comprehensive set of public health strategies intended to reduce the negative impact of substance use disorders;
  9. “Local public health priorities” means services not included in core public health programs as defined in this section that are identified through a needs assessment as priorities of an agency through a process established in administrative regulations; and
  10. “Population health services” means the development and support of policies and practices to address, change, and improve health outcomes through community education and partnership development.

HISTORY: 2020 ch. 21, § 1, effective March 17, 2020.

211.186. Funding for foundational public health programs — Calculation of statewide base funding level and funding level for each public health service provider — Eligibility for receipt of funds — Administrative regulations — Recordkeeping and submission of information.

  1. In determining the total amount of funds to be allocated for the delivery of foundational public health programs, the statewide base funding level shall be calculated to ensure that:
    1. Each county in the Commonwealth that has fifteen thousand (15,000) or fewer residents shall have a minimum of three (3) full-time equivalent foundational public health service providers for foundational public health programs; and
    2. Each agency has sufficient funds to employ one (1) additional full-time equivalent foundational public health service provider for each time that one (1) additional person, in ranges of five thousand (5,000) persons, is residing in the county beyond the first fifteen thousand (15,000) persons residing in the county that the agency serves.
  2. The funding level for each full-time equivalent foundational public health service provider shall be computed by dividing the total amount appropriated for this purpose by the number of full-time equivalent foundational public health service providers mandated by this section.
  3. Each agency shall be eligible to share in the distribution of funds appropriated for foundational public health programs that meet the following requirements:
    1. Employs, or pledges to employ on receipt of funds, a minimum of one (1) full-time equivalent foundational public health service provider pursuant to the requirements of subsection (1) of this section;
    2. Provides or ensures the delivery of foundational public health programs within the agency’s jurisdiction; and
    3. Dedicates funding for full-time equivalent foundational public health service providers in one (1) of the following ways:
      1. By the implementation of the ad valorem public health tax authorized by KRS 212.725 and 212.755 at a rate of at least one and eight- tenths cents ($0.018), per one hundred dollars ($100) of full value assessed valuation; or
      2. By the receiving of direct funding from the county or counties in which the agency operates in amount that equals what the agency would receive if the ad valorem public health tax had been levied in the county or counties the agency serves at a rate of at least one and eight-tenths cents ($0.018), or any higher rate established by the commissioner, per one hundred dollars ($100) of assessed property valuation.
  4. An agency that meets the requirements established in subsection (3) of this section shall be entitled to receive an amount equal to the base funding level for each full-time equivalent foundational public health service provider, as evaluated by the Cabinet for Health and Family Services. The base funding level shall be evaluated using the following minimum factors:
    1. The amount of funds received by the agency under subsection (3)(c) of this section;
    2. The statewide average costs of salary for each full-time equivalent foundational public health service provider in the agency;
    3. The statewide average costs of benefits for each full-time equivalent foundational public health service provider in each agency;
    4. The actual costs of the retirement liability contributions for each full-time equivalent foundational public health service provider in each agency as compared to other agencies throughout the state and whether the agency’s equivalents participate in the Kentucky Employees Retirement System or County Employees Retirement System; and
    5. The statewide average costs of operating expenses to the agency associated with each full-time equivalent foundational public health service provider.
  5. The Cabinet for Health and Family Services shall determine, on or before May 1 of each year preceding a biennial budget session of the General Assembly, the estimated amount necessary to fund the salary, benefits, unfunded retirement liability contribution, and operating expenses to the agency associated with each full-time equivalent foundational public health service provider for all agencies as calculated from the previous nine (9) month period.
  6. The department shall establish procedures to ensure that core public health programs will be provided or ensured by one (1) or more agencies. The core public health programs, excluding all foundational public health programs, may be provided by another entity; however, the agency shall agree, as funding is available, that it will remain responsible for ensuring that these programs are provided in the event the other entity no longer provides the service.
  7. The department shall, within sixty (60) days of March 17, 2020, promulgate administrative regulations to establish the process and procedures to ensure that core public health programs, foundational public health programs, and local public health priorities are identified and facilitated by one (1) or more agencies in the Commonwealth.
  8. The department shall not require agencies to enter additional agreements beyond the provisions of core public health programs. Agencies may enter into contractual agreements with the department outside of programs and services defined in KRS 211.185 .
  9. An agency shall maintain records and submit information as required by the department to administer this section.
  10. Notwithstanding KRS 211.170 and 212.120 , any moneys allocated pursuant to this section for foundational public health programs is allowable.

HISTORY: 2020 ch. 21, § 2, effective March 17, 2020.

211.187. Local public health priorities — Criteria — Administrative regulations — Recordkeeping and submission of information.

  1. As long as core public health programs are funded and implemented, local public health priorities, as defined in KRS 211.185 , may be provided by the agency and shall meet the following criteria:
    1. Demonstrate data-driven needs;
    2. Use evidence-based or promising practices;
    3. Identify adequate funding;
    4. Demonstrate performance and quality management plans; and
    5. Define a strategy to determine when the service or program is no longer needed.
  2. The department shall, within sixty (60) days of March 17, 2020, promulgate administrative regulations establishing the process to demonstrate that the local health priorities meet the criteria established in this section.
  3. An agency shall maintain records and submit information as required by the department to administer this section.

HISTORY: 2020 ch. 21, § 3, effective March 17, 2020.

211.190. Public health services to be provided by the cabinet.

The cabinet shall provide public health services including:

  1. Administrative, consultative, technical, professional, and other services needed to assist local health departments in the effective maintenance and operation of their departments;
  2. Administrative, investigative, and clerical services required by the secretary of the Cabinet for Health and Family Services, and may upon request provide these services to any other agency of this Commonwealth authorized to control the practice of any other healing art;
  3. Administration of grants, gifts, or contributions from the federal government, or from other sources, for the purpose of carrying out the provisions of Pub. L. No. 725 (79th Congress, 2nd Session, chapter 958), or any other acts for the same or similar purposes;
  4. Central registrations of births, deaths, and other vital records and the furnishing of copies thereof to the general public in the manner prescribed by law;
  5. Statistical services, including the compilation, analysis, and maintenance of statistics on matters related to public health, and may provide these services to organizations and persons interested in public health;
  6. Education of the public concerning all matters relating to health, including the publication and dissemination of health information, and the stimulation of citizen support for the promotion and maintenance of high standards of public health throughout the Commonwealth;
  7. Survey and study of the needs of medical and hospital facilities in the interest of the health of the general public;
  8. Establishment, maintenance, and operation of public health laboratories and such branches thereof as may be needed;
  9. Establishment, maintenance, and operation of training facilities and schools for employees of the cabinet and of local health departments;
  10. Tabulating, duplicating, and other ancillary services as are necessary to the operation of the cabinet, including the keeping of adequate financial, personnel, and other records; and
  11. Establishment, maintenance, monitoring, and enforcement of water fluoridation programs for the protection of dental health.

History. Enact. Acts 1954, ch. 157, § 13, effective June 17, 1954; 1974, ch. 74, Art. VI, § 107(17); 1974, ch. 308, § 39; 1994, ch. 351, § 1, effective July 15, 1994; 1998, ch. 426, § 291, effective July 15, 1998; 2005, ch. 99, § 347, effective June 20, 2005.

Compiler’s Notes.

Public Law No. 725, 79th Congress, chapter 958 (60 Stat. 1041), referred to in subdivision (3), is repealed.

211.192. Information to be provided concerning Down syndrome and spina bifida — By whom — When.

  1. For the purposes of this section:
    1. “Down syndrome” means a chromosomal condition caused by cell division that results in the presence of an extra whole or partial copy of chromosome 21; and
    2. “Spina bifida” means a neural tube defect, the most common of which is the open neural tube defect myelomeningocele.
  2. A health facility as defined in KRS 216B.015(13), physician, health care provider, nurse midwife, or genetic counselor who renders prenatal care, postnatal care, or genetic counseling, upon receipt of a positive test result from a test for Down syndrome or spina bifida, shall provide the expectant or new parent with information provided by the Cabinet for Health and Family Services under subsection (3) of this section.
  3. The Cabinet for Health and Family Services shall make available to any person who renders prenatal care, postnatal care, or genetic counseling to parents who receive a prenatal or postnatal diagnosis of Down syndrome or spina bifida and to any person who has received a positive test result from a test for Down syndrome or spina bifida the following:
    1. Up-to-date, evidence-based, written information about Down syndrome or spina bifida that has been reviewed by medical experts and Down syndrome or spina bifida organizations and includes information on physical, developmental, educational, and psychosocial outcomes, life expectancy, clinical course, intellectual and functional development, and treatment options; and
    2. Contact information regarding support programs and services for expectant and new parents of children with Down syndrome or spina bifida, including information hotlines specific to Down syndrome or spina bifida, resource centers or clearinghouses, national and local Down syndrome or spina bifida organizations such as Down Syndrome of Louisville, Down Syndrome Association of Central Kentucky, Down Syndrome Association of South Central Kentucky, Green River Area Down Syndrome Association, Down Syndrome Association of Greater Cincinnati Serving Northern Kentucky, Council on Developmental Disabilities, the Spina Bifida Association of Kentucky, and other education and support programs.

HISTORY: Enact. Acts 2013, ch. 6, § 1, effective June 25, 2013; 2015 ch. 42, § 1, effective June 24, 2015.

211.195. Authorization for Department for Public Health to develop programs allowing local health departments to participate in telehealth and receive reimbursement.

The Department for Public Health may develop programs for local health departments to participate in telehealth and to seek reimbursement for services as provided for other health care providers under KRS Chapter 205 or KRS Chapter 304, Subtitle 17A.

History. Enact. Acts 2000, ch. 376, § 5, effective July 14, 2000.

211.200. Assignment of cabinet personnel to a county in case of public health emergency or when county lacks adequate local health department.

Whenever, in the opinion of the secretary for health and family services, a public health emergency exists in any county, or whenever any county fails to establish, maintain, and operate a local health department therein meeting the standards prescribed by the cabinet, the cabinet may assign to said county such of its own personnel as may be designated by the secretary for health and family services. Such personnel so assigned shall have the full power and authority of local health department employees in addition to their power and authority as representatives of the cabinet. Whenever such assignment results by reason of the lack of a local health department or of a local health department meeting the standards prescribed by the cabinet, any funds appropriated or allocated to the local health department by either the Commonwealth or the federal government may be used to reimburse the cabinet.

History. Enact. Acts 1954, ch. 157, § 14, effective June 17, 1954; 1974, ch. 74, Art. VI, § 107(16); 1998, ch. 426, § 292, effective July 15, 1998; 2005, ch. 99, § 348, effective June 20, 2005.

211.210. Abatement of nuisances.

The cabinet may examine into all nuisances, sources of filth and causes of sickness that may in its opinion be injurious to the health of the inhabitants in any county in this state, or in any vessel within any harbor or port in any county in this state. Whenever any such nuisance, source of filth or cause of sickness is found to exist on any private property, or in any vessel within any port or harbor in any county in this state, or upon any watercourse in this state, the cabinet may order, in writing, the owner or occupant thereof, at his own expense, to remove the same within twenty-four (24) hours, or within such reasonable time thereafter, as the cabinet may order.

History. Enact. Acts 1954, ch. 157, § 15, effective June 17, 1954.

211.215. Program for decontamination of bird roosts. [Repealed]

History. Enact. Acts 1980, ch. 106, § 1, effective April 2, 1980; 1998, ch. 426, § 293, effective July 15, 1998; 2005, ch. 99, § 349, effective June 20, 2005; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

211.220. Powers of cabinet personnel in the conduct of investigations — Subpoenas, process.

For the purposes of enforcing the public health laws of the Commonwealth, investigators, inspectors, officers, representatives, and agents of the cabinet may enter upon any premises when necessary for the purpose of making inspections and investigations, and may view evidence and interrogate persons, to the extent required in the performance of their duties and responsibilities. The secretary of the Cabinet for Health and Family Services may issue subpoenas, subpoenas duces tecum, and all necessary process in proceedings brought before or initiated by the cabinet, and such process shall extend to all parts of the Commonwealth. Service of process may be made by certified mail, return receipt requested, or in the manner prescribed by the Rules of Civil Procedure. Nothing in this section shall be construed to authorize the cabinet to regulate the practice of any healing art where the licensure, regulation, and control of same has been conferred by statute upon some other agency of the state.

History. Enact. Acts 1954, ch. 157, § 16, effective June 17, 1954; 1974, ch. 74, Art. VI, § 64; 1974, ch. 315, § 28; 1980, ch. 114, § 41, effective July 15, 1980; 1998, ch. 426, § 294, effective July 15, 1998; 2005, ch. 99, § 350, effective June 20, 2005.

211.230. Enforcement of obedience to orders and process — Coercion of witness to testify.

In case of a failure on the part of any person, firm, or corporation to comply with any lawful order of the Cabinet for Health and Family Services, or with process or in case of the refusal of any witness to testify concerning any matter on which he may be lawfully interrogated, the Circuit Court, or a judge thereof, having jurisdiction may, on application of the Cabinet for Health and Family Services or the secretary of the Cabinet for Health and Family Services, compel obedience by proceedings as in contempt cases.

History. Enact. Acts 1954, ch. 157, § 17, effective June 17, 1954; 1974, ch. 74, Art. VI, § 65; 1998, ch. 426, § 295, effective July 15, 1998; 2005, ch. 99, § 351, effective June 20, 2005.

211.240. Duties of Attorney General, county, and Commonwealth’s attorneys.

County, Commonwealth’s attorneys, and the Attorney General, shall, within their respective jurisdictions, prosecute all violations of the penal provisions of the public health laws of this Commonwealth.

History. Enact. Acts 1954, ch. 157, § 18, effective June 17, 1954; 1976 (Ex. Sess.), ch. 17, § 46, effective January 1, 1978.

211.250. Political activity by personnel prohibited.

While retaining the right to vote as he may please and to express privately his opinion of all political subjects and issues, neither the commissioner for health services nor any employee of the department shall take any active part in political management or political campaigns, nor shall he use his office or influence for the purpose of interfering in any election or affecting the results thereof, or for the purpose of coercing the political action of any body or person.

History. Enact. Acts 1954, ch. 157, § 19, effective June 17, 1954; 1974, ch. 74, Art. VI, § 66.

211.260. Appeals from action by cabinet.

Any person who is aggrieved by any ruling, decision or action of the cabinet on other than matters of internal administration may appeal to the secretary within thirty (30) days after said ruling, decision or action, by filing with the secretary a written complaint setting out the ruling, decision or action complained of, the reasons that such person is aggrieved and the relief sought by such person.

History. Enact. Acts 1954, ch. 157, § 20, effective June 17, 1954; 1974, ch. 74, Art. VI, § 107(18), (22).

211.270. Payment of travel expenses of personnel.

All officers, assistants and employees of the cabinet shall be paid their necessary traveling expenses while engaged in the discharge of their official and cabinet duties.

History. Enact. Acts 1954, ch. 157, § 21, effective June 17, 1954.

211.280. Powers of cabinet concerning gifts, grants and endowments.

  1. The cabinet may receive and accept gifts and endowments of every kind including gifts and endowments for special purposes and may receive grants from the federal government. Moneys acquired through gifts, endowments or grants shall be deposited in the State Treasury to the credit of a trust or agency fund to be used for the purposes for which they are received. Gifts or endowments with special restrictions as to use or purpose shall be expended in accordance with such restrictions.
  2. The cabinet may mortgage, pledge, sell or convey lands or goods so received unless specifically prohibited by the terms of the gift, proceeds therefrom to go to the credit of a trust or agency fund set out in subsection (1) of this section.

History. Enact. Acts 1954, ch. 157, § 22, effective June 17, 1954.

211.285. Malt beverage educational fund.

  1. There is hereby created the malt beverage educational fund which shall provide moneys on a matching basis for educational information and materials that deter or eliminate underage drinking. The fund shall consist of moneys generated from one percent (1%) of the excise tax collected from the sale and distribution of malt beverages under KRS 243.720 and one percent (1%) of the wholesale tax collected from distributors of malt beverages and microbreweries under KRS 243.884 .
  2. The malt beverage educational fund shall be established in the State Treasury as a trust and revolving account under KRS 45.253 . Moneys in the account shall be distributed by the State Treasurer to the Malt Beverage Educational Corporation, a nonprofit organization that is organized under the laws of this state, upon the authorization of the secretary of the Cabinet for Health and Family Services. The moneys shall be awarded to the corporation solely to fund educational programs to deter or eliminate underage drinking.
  3. The secretary of the Cabinet for Health and Family Services shall authorize that moneys from the fund be disbursed to the corporation upon the secretary’s receipt of a certification from the corporation showing the moneys the corporation has received from malt beverage distributors, microbreweries, and other private sources since the last certification. The moneys disbursed from the fund shall be equal to the contributions that the corporation has received from its members and other private sources during that period. The moneys in the fund shall be disbursed in accordance with a schedule established by the secretary, and shall be disbursed until the moneys in the fund are exhausted or until the moneys in the fund lapse in accordance with subsection (4) of this section, whichever comes first.
  4. Moneys that are credited to the fund and not issued to the corporation shall lapse at the end of the fiscal year and shall be returned to the general fund.
  5. As a condition of receiving the governmental funds, the corporation’s board of directors shall include the following among its directors:
    1. The Governor or his or her designee;
    2. The Attorney General or his or her designee;
    3. The President of the Senate or his or her designee;
    4. The Speaker of the House or his or her designee;
    5. The secretary of the Cabinet for Health and Family Services or his or her designee; and
    6. The commissioner of the Department of Alcoholic Beverage Control or his or her designee.
  6. All expenditures of moneys from the fund shall be approved by a majority of those persons set out in subsection (5)(a) to (f) of this section. If the moneys from the fund are not expended in their entirety, any moneys that remain unused by the corporation at the end of the fiscal year shall be returned to the general fund.
  7. Any moneys from the fund that are not expended shall be returned to the general fund upon the dissolution of the corporation.
  8. Any high school in the Commonwealth of Kentucky that was registered with the Department of Education as of July 1, 1997, may make an application to the Malt Beverage Education Corporation by February 28 of each year and shall be granted a minimum of five hundred dollars ($500) annually from the funds contributed by the malt beverage educational fund for the single purpose of supporting “Project Graduation” events.

HISTORY: Enact. Acts 1998, ch. 225, § 1, effective July 15, 1998; 2005, ch. 99, § 352, effective June 20, 2005; 2010, ch. 24, § 308, effective July 15, 2010; 2018 ch. 16, § 5, effective July 14, 2018.

211.287. Funding by Department for Public Health of position relating to student health services.

  1. The Department for Public Health shall provide fifty percent (50%) of the costs for the position created in KRS 156.501(2). The Department for Public Health may enter into a contractual arrangement, such as a Memorandum of Agreement, with the Department of Education to share the costs.
  2. The Department for Public Health shall provide access, information, assistance, and support to the education school nurse consultant necessary to assist and support the Department of Education to fulfill the duties specified in KRS 156.501 .
  3. It is the intent of the General Assembly that there be no duplication of services or duties between the Department of Education and the Department for Public Health relating to school health services and that the position created in KRS 156.501(2) serve as a technical advisor and liaison among state agencies, local school districts, and local health departments.

History. Enact. Acts 2002, ch. 294, § 3, effective July 15, 2002.

211.295. Definitions for KRS 211.295 to 211.297.

As used in KRS 211.295 to 211.297 :

  1. “Cabinet” means the Cabinet for Health and Family Services;
  2. “Council” means the Palliative Care Interdisciplinary Advisory Council established under KRS 211.296 ;
  3. “Health facility” has the same meaning as in KRS 216B.015 ;
  4. “Medical care” means services provided, requested, or supervised by a physician licensed pursuant to KRS Chapter 311 or advanced practice registered nurse licensed pursuant to KRS Chapter 314;
  5. “Palliative care” means patient- and family-centered medical care that anticipates, prevents, and treats suffering caused by serious illness and involves addressing the physical, emotional, social, and spiritual needs of a patient and facilitating patient autonomy, access to information, and choice. Causing or hastening death shall not be deemed a method for anticipating, preventing, or treating suffering as described in this subsection; and
  6. “Serious illness” means any medical illness, physical injury, or condition that causes substantial suffering for more than a short period of time, including but not limited to Alzheimer’s disease and related dementias, lung disease, cancer, or heart, renal, or liver failure.

HISTORY: 2019 ch. 84, § 1, effective June 27, 2019.

211.296. Palliative Care Interdisciplinary Advisory Council.

  1. The Palliative Care Interdisciplinary Advisory Council is hereby established to improve the quality and delivery of patient- and family-centered care throughout the Commonwealth and to advise the cabinet on matters related to the establishment, maintenance, operation, and outcomes evaluation of palliative care initiatives. The council shall be attached to and administered by the cabinet.
  2. The Governor shall appoint the members of the council to serve three (3) year terms. The council shall consist of thirteen (13) voting members, and may include nonvoting members who are relevant cabinet representatives designated by the Governor. Voting members shall be:
    1. Two (2) members from interdisciplinary medical, nursing, social work, pharmacy, and spiritual professions with palliative care work experience or expertise;
    2. Two (2) members who are either licensed or certified hospice and palliative medicine physicians licensed pursuant to KRS Chapter 311 or licensed or certified hospice and palliative care advanced practice registered nurses licensed pursuant to KRS Chapter 314;
    3. One (1) member who has pediatric palliative care expertise;
    4. One (1) member who is a patient or family caregiver advocate;
    5. One (1) member recommended to the Governor by the Statewide Independent Living Council;
    6. One (1) member recommended to the Governor by the American Cancer Society;
    7. One (1) member recommended to the Governor by the Kentucky Right to Life Association;
    8. One (1) member recommended to the Governor by the Long-Term Care Ombudsman Program;
    9. One (1) member recommended to the Governor by the Kentucky Association of Hospice and Palliative Care;
    10. One (1) member recommended to the Governor by the Kentucky Psychological Association; and
    11. One (1) member recommended to the Governor by the Kentucky Association of Health Care Facilities.
  3. Appointed members of the council shall serve without compensation, but shall be reimbursed for actual expenses incurred in the performance of duties in accordance with KRS 45.101 and administrative regulations promulgated thereunder.
    1. Members of the council shall elect a chair and vice chair whose duties shall be established by the council. (4) (a) Members of the council shall elect a chair and vice chair whose duties shall be established by the council.
    2. The time and place for regularly scheduled meetings shall be established by a majority vote of the council, but there shall be at least two (2) meetings per year.
    3. The chair or any three (3) voting members shall provide two (2) weeks’ notice to the members regarding an upcoming meeting.

HISTORY: 2019 ch. 84, § 2, effective June 27, 2019.

211.297. Palliative Care Consumer and Professional Information and Education Program.

  1. The statewide Palliative Care Consumer and Professional Information and Education Program is hereby established within the cabinet.
  2. The goals of the Palliative Care Consumer and Professional Information and Education Program shall be to maximize the effectiveness of palliative care initiatives throughout the Commonwealth by ensuring that comprehensive and accurate information and education about palliative care are available to the public, health care providers, and health facilities.
  3. The cabinet shall publish on its Web site information and resources, including links to external resources, about palliative care for the public, health care providers, and health facilities. This shall include but not be limited to:
    1. Continuing education opportunities for health care providers;
    2. Information about palliative care delivery in the home, primary, secondary, and tertiary environments;
    3. Best practices for palliative care delivery; and
    4. Consumer educational materials and referral information for palliative care, including hospice.
    1. The council shall have the authority to review, evaluate, and make recommendations regarding all elements of the Palliative Care Consumer and Professional Information and Education Program, the content of the Web site information and resources described in subsection (3) of this section, and best practices for palliative care delivery and any grants to develop or implement them. (4) (a) The council shall have the authority to review, evaluate, and make recommendations regarding all elements of the Palliative Care Consumer and Professional Information and Education Program, the content of the Web site information and resources described in subsection (3) of this section, and best practices for palliative care delivery and any grants to develop or implement them.
    2. Any evaluations or recommendations shall require the affirmative vote in person, by electronic means, or by proxy of three-fourths (3/4) of the voting members of the council.
    3. Not later than July 1, 2020, and annually thereafter, the council shall submit a report on its findings and recommendations to the commissioner of the Department for Public Health and to the Interim Joint Committee on Health and Welfare and Family Services.

HISTORY: 2019 ch. 84, § 3, effective June 27, 2019.

Medical Scholarships and Loans

211.290. Rural Kentucky medical scholarship fund. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 181, § 1; 1974, ch. 74, Art. VI, § 107(1), (11)) was repealed by Acts 1990, ch. 482, § 32.

211.300. Declaration of legislative policy and definition for KRS 211.300 to 211.330. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 136, § 1.2; 1974, ch. 74, Art. VI, § 107(1), (20); 1980, ch. 188, § 205) was repealed by Acts 1990, ch. 482, § 32.

211.305. Applications for medical education loans and scholarships. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 136, § 3; 1974, ch. 74, Art. VI, § 107(20)) was repealed by Acts 1990, ch. 482, § 32.

211.310. Maximum amount and conditions of loan and scholarship. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 136, § 4; 1974, ch. 74, Art. VI, § 107(20)) was repealed by Acts 1990, ch. 482, § 32.

211.315. Execution of contract for loan or scholarship. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 136, § 5; 1974, ch. 74, Art. VI, § 67) was repealed by Acts 1990, ch. 482, § 32.

211.320. Cancellation of contract — Repayment of loan or scholarship. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 136, § 6; 1974, ch. 74, Art. VI, § 107(20)) was repealed by Acts 1990, ch. 482, § 32.

211.325. Contracts with medical schools. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 136, § 7; 1974, ch. 74, Art. VI, § 107(20)) was repealed by Acts 1990, ch. 482, § 32.

211.330. Trust or agency fund. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 136, § 7; 1974, ch. 74, Arts. II, § 9(1) and VI, § 107(20)) was repealed by Acts 1990, ch. 482, § 32.

Public and Private Water Supplies

211.345. Programs for testing public and private water supplies and for educating public about proper siting and drilling of wells.

The Department for Public Health in the Cabinet for Health and Family Services shall establish a program for testing, upon request of the owner or user of the water supply, private water supplies for bacterial and chemical contamination, and for educating the public about proper siting and drilling of wells and treatment of wells and other private water supplies. The program shall consist of the following elements:

  1. The development of policies, in conjunction with the Energy and Environment Cabinet, for testing private water supplies and using relevant information in a groundwater database;
  2. The development of a data collection system, in conjunction with the Energy and Environment Cabinet, which shall contain the results of water sample tests and information on well location sufficient to locate the wells on an official map;
  3. The development of a private water supply user’s manual to be made available to the public; and
  4. The development of a technical assistance program for private water supply users.

History. Enact. Acts 1986, ch. 108, § 2, effective July 15, 1986; 1998, ch. 426, § 296, effective July 15, 1998; 2005, ch. 99, § 353, effective June 20, 2005; 2010, ch. 24, § 309, effective July 15, 2010.

On-site Sewage Disposal

211.350. On-site sewage disposal systems — Electronic database — Reports — Regulations — Issuance of permits — Site evaluations and approval of system designs by local health department or licensed professional engineer — Notices of release for electrical wiring — Fees — Farmstead sewage disposal systems.

  1. The cabinet shall regulate the construction, installation, or alteration of on-site sewage disposal systems except for systems that have a surface discharge. The cabinet shall create and maintain an electronic database for Kentucky on-site wastewater systems information, which for each system shall include but not be limited to permit application date, permit application status, system installation date, system type, latitude and longitude of system, records of system plan and site evaluations, inspection dates, and the condition of system at time of inspection. The cabinet shall make data from this system available upon request.
  2. The Department for Public Health shall maintain a current list of approved and experimental on-site wastewater treatment technologies and greywater technologies, which the department shall make available, along with guidance and expertise, to local health departments. Local health departments shall provide the list of approved technologies to on-site wastewater professionals and permit applicants. With respect to on-site sewage disposal systems that utilize greywater to reduce total daily waste flows, the local health department shall inform the permit applicant, at the time of making an application to construct an on-site sewage disposal system that utilizes greywater to reduce daily waste flows, of the opportunity to consult with the environmental health program evaluators in the Division of Public Health Protection and Safety regarding the administrative regulations, permit requirements, and permissible system designs for inclusion and use of greywater.
  3. Site evaluations shall be completed by the local health department within fifteen (15) working days of receipt of the application. If further information is required, the local health department shall promptly notify the applicant and shall have an additional ten (10) working days after that submittal of additional information in which to evaluate and issue or deny the permit. It shall be the responsibility of the property owner or owner’s agent to protect and maintain the suitability of an approved site and to notify the local health department for a reinspection if site conditions substantively change. If a site previously determined to be suitable is thereafter declared unsuitable by the local health department, remedial measures shall be provided in writing to the property owner or owner’s agent within fifteen (15) working days.
  4. After the conclusion of the site evaluation, the local health department shall, upon request, provide a list of all options that may be approved for the property, including new and emerging technologies. It shall be the responsibility of the owner of advanced treatment, alternative, experimental, or new and emerging technology systems to contract with a management entity, certified system operator, or trained system operator to develop and implement an approved operations and maintenance plan specific to, and appropriate for, the approved system.
  5. No person, firm, or corporation shall construct, install, alter, or cause to be constructed, installed, or altered, any on-site sewage disposal system subject to regulation by the cabinet without having first obtained an on-site sewage disposal permit from the local health department. In lieu of inspection and certification by the local health department a licensed professional engineer in private practice licensed by the Commonwealth of Kentucky may perform site evaluations and approve system designs for an on-site sewage disposal system including those systems that utilize greywater for reductions in daily waste flows for the person, firm, or corporation and apply for the permit from the local health department. The final systems installation inspection shall be performed by the local health department as soon as practicable. All applicable provisions of KRS Chapter 322 shall govern the licensed professional engineer. A professional engineer shall not perform site evaluations, approve system designs, or certify system installations of an on-site sewage disposal system on property owned by himself, an employee, or a partner of an engineering firm by which he is employed, or on property owned by the engineering firm. Nothing in this section shall be construed to deny a farmstead owner the right to obtain a permit. Except for farmstead owners on their own property, the construction, installation, or alteration shall be performed only by a person certified by the cabinet pursuant to KRS 211.357 .
  6. A local health department that issues a permit for an on-site sewage disposal system, including systems that utilize greywater to reduce total daily waste flows, based on the site evaluation or system design of a licensed professional engineer in private practice licensed by the Commonwealth of Kentucky shall not be held liable for any defects or failures of the on-site sewage disposal system due to the site evaluation or system design.
  7. No person, firm, or corporation shall use or continue to use or permit the use or continued use of any on-site sewage disposal system, including those systems that utilize greywater to reduce total daily waste flows, that is constructed, installed, or altered under an on-site sewage disposal permit if the cabinet or local health department through a duly authorized inspector, employee, agent, or licensed professional engineer in private practice licensed by the Commonwealth of Kentucky finds that the system was not constructed, installed, or altered in conformance with the permit and regulations issued by the cabinet.
  8. No certified electrical inspector acting under authority of KRS 227.491 shall issue the certificates of approval of temporary or permanent electrical wiring unless the inspector has in his or her possession a notice of release as described in paragraphs (a) and (b) of this subsection. The inspector shall record the number of the notice of release on the certificate of approval. The person requesting approval of electrical wiring shall be responsible for obtaining the release from the local health department and providing it to the electrical inspector. This requirement shall only apply to dwellings, mobile homes, manufactured housing, buildings, or other structures that are constructed or installed after July 15, 1998. This requirement shall not apply to structures that do not have sewage waste fixtures or to those that are connected to a sewage waste disposal system approved by the Energy and Environment Cabinet. Nothing in this section shall be construed to deny the continued use of any electrical service connected to wiring approved prior to July 15, 1998.
    1. An initial notice of release to allow temporary electrical power for construction shall be issued to the property owner or owner’s agent by the local health department upon the application for a site evaluation.
    2. A final notice of release to allow for permanent electrical power shall be issued to the property owner or owner’s agent by the local health department upon approval of an on-site sewage disposal plan.
    3. This section shall not apply to any county that has adopted the Uniform State Building Code and has and enforces on-site sewage disposal permitting.
  9. All applications for on-site sewage disposal permits shall be accompanied by plans and specifications for the proposed system, including results of soils tests and other information as directed by the cabinet by regulation. If the site evaluation or approval of the system design is performed by a licensed professional engineer in private practice licensed by the Commonwealth of Kentucky, the application shall be accompanied by a statement by the engineer that he has met the requirements of the regulations issued by the cabinet for site evaluation and system design. Any action to deny an application shall be subject to appeal, and upon appeal an administrative hearing shall be conducted in accordance with KRS Chapter 13B.
  10. The cabinet shall fix a schedule of fees for the functions performed by the cabinet relating to the regulation of on-site sewage disposal systems. The fees shall be designed to fully cover the cost of the service performed but shall not exceed the cost of the service performed. Fees payable to the cabinet shall be paid into the State Treasury and credited to a trust and agency fund to be used by the cabinet in carrying out its responsibilities relating to the regulation of on-site sewage disposal systems. No part of the fund shall revert to the general fund of the Commonwealth.
  11. Any regulation relating to on-site sewage disposal that is in effect on July 15, 1992, shall remain in effect until altered by the secretary, except that administrative regulations that govern total daily waste flows shall be updated in accordance with KRS 211.351 . The secretary may issue additional regulations necessary to carry out the purposes of this section.
  12. Nothing in this section shall authorize or allow the cabinet to inspect or take enforcement action against on-site sewage disposal systems installed on farmsteads prior to July 15, 1992, or modifications to those systems unless the actions are determined in writing by the cabinet, upon a written, verified complaint, to be necessary to prevent imminent harm or damage to the safety, life, or health of a person. In this instance, the cabinet shall deliver to the landowner a copy of the written determination and the verified complaint prior to the commencement of the inspection or enforcement action.
  13. As used in this section:
    1. “Blackwater” means wastewater containing liquid or solid waste generated through use of a urinal, water closet, garbage disposal, or similar sanitary fixture; and
    2. “Greywater” means wastewater generated by hygiene activities, including but not limited to wastewater from laundry, lavatory sinks, and showers, but shall exclude kitchen sinks and food preparation sinks. “Greywater” does not include blackwater.

HISTORY: Enact. Acts 1982, ch. 392, § 1, effective July 15, 1982; 1984, ch. 387, § 1, effective July 13, 1984; 1986, ch. 354, § 1, effective July 15, 1986; 1988, ch. 372, § 2, effective July 15, 1988; 1992, ch. 216, § 2, effective July 14, 1992; 1996, ch. 318, § 105, effective July 15, 1996; 1998, ch. 570, § 1, effective July 15, 1998; 2001, ch. 117, § 1, effective March 19, 2001; 2006, ch. 191, § 1, effective July 12, 2006; 2010, ch. 24, § 310, effective July 15, 2010; 2016 ch. 108, § 1, effective July 15, 2016; 2017 ch. 80, § 39, effective June 29, 2017.

Legislative Research Commission Notes.

(7/15/2016). 2016 Ky. Acts ch. 108, sec. 1 inserted a reference to “the Department for Public Health Protection and Safety” into subsection (2) of this statute. In codification, this reference has been changed to read “the Division of Public Health Protection and Safety.” The Reviser of Statutes has made this correction under the authority of KRS 7.136(1).

Opinions of Attorney General.

A sanitarian who performs a percolation test as a private business should not take any part in the decision on a permit for a subsurface disposal system that relies on the percolation test he performed. Additionally, the sanitarian should not perform the inspection of the installation of that same subsurface disposal system because of the appearance of conflicting loyalties presented. OAG 82-338 .

The homestead exemption in KRS 318.015(3) has no application to the reenacted sewage disposal statutes in KRS 211.350 et seq. OAG 84-191 .

211.351. Administrative regulations that update daily waste flow charts and include methodology for using conservation credits for greywater systems — State primacy in allowable greywater use.

  1. Ninety (90) days from July 15, 2016, the cabinet shall promulgate administrative regulations that update the daily waste flow charts to account for technological improvements in water-using fixtures and appliances that reduce water usage. The cabinet also shall include a methodology for using conservation credits for greywater systems that reduce total daily waste flows.
  2. No political subdivision of the state shall prohibit the use of greywater reduction of average daily waste flows by policy, rule, or ordinance if the greywater use is allowed pursuant to a permit issued under KRS 211.350 .

HISTORY: 2016 ch. 108, § 2, effective July 15, 2016.

211.355. Fees set by local board of health — Inspections to be made only on systems constructed after July 15, 1986 — Exception.

  1. Any local board of health authorized to serve as agent of the Cabinet for Health and Family Services for the issuance of permits for on-site sewage disposal systems may set a schedule of fees reasonably related to the cost of administering programs including:
    1. Inspections incidental to construction, installation, and alteration of on-site sewage disposal systems; and
    2. Inspections incidental to maintenance and operation of on-site sewage disposal systems.
  2. Such fees shall be designed to fully cover the cost of the services but shall not exceed the cost of the services performed. Fees payable to the board shall be used by the board only for the administration of said program.
  3. Nothing in this section shall authorize or allow the cabinet to inspect any on-site sewage disposal system constructed prior to July 15, 1986, unless such inspection is deemed necessary due to receipt of a complaint by the cabinet or the local health department. In such an instance, the cabinet shall document or shall require the local health department to document the source and nature of such complaint.

History. Enact. Acts 1982, ch. 392, § 2, effective July 15, 1982; 1986, ch. 354, § 3, effective July 15, 1986; 1998, ch. 426, § 297, effective July 15, 1998; 2005, ch. 99, § 354, effective June 20, 2005.

NOTES TO DECISIONS

1.In General.

In an action challenging the denial of a permit, plaintiffs must show that they had a legitimate claim of entitlement to the permit, not a mere expectation. In approaching this question, courts often look to whether the issuance of the permit involved a significant degree of discretion to the extent that a claim of entitlement would not be legitimate. Under the present circumstances, plaintiffs claim that because KRS 211.355(3) appears to strip the Health District’s authority to inspect on-site sewage disposal systems “constructed prior to July 15, 1986,” they were legitimately entitled to the food service permit fails. Nothing in the record suggests that Plaintiffs were guaranteed the permit had inspection of the waste disposal system been disallowed. Even the Health District’s eventual approval of Plaintiffs’ permit application following the injunction issued by the Kentucky Court of Appeals does not alter the reality that the Health District retains a significant degree of discretion in issuing food service permits. Clair v. N. Ky. Indep. Health Dist., 504 F. Supp. 2d 206, 2006 U.S. Dist. LEXIS 67163 (E.D. Ky. 2006 ), aff'd, 239 Fed. Appx. 997, 2007 FED App. 0651N, 2007 U.S. App. LEXIS 21580 (6th Cir. Ky. 2007 ).

211.357. Certification of installers of on-site sewage disposal systems — Fees.

  1. The cabinet shall establish a program to certify persons as installers of on-site sewage disposal systems. A master plumber licensed pursuant to KRS Chapter 318 or a person who provides written verification from the local health department in the county in which the work was completed that he installed five (5) lateral fields and septic tank systems prior to July 13, 1984, and that these installations had been inspected by a certified inspector and passed inspection, shall be certified automatically.
  2. The cabinet shall establish as a part of the certification program referenced in subsection (1) of this section a means of issuing a probationary certification for installers of on-site sewage disposal systems. This probationary certification shall automatically be converted to a full certification at the time that the holder of the probationary certificate has installed five (5) lateral fields and septic tank systems and has provided written verification from the local health department in the county in which the work was completed that these installations have been inspected by a certified inspector and passed the inspection. The cabinet shall issue a full certificate to the holder of the probationary certificate no later than sixty (60) days after receipt of verification. In order to be issued a probationary certification, eligible persons shall certify in writing that they will make installations in accordance with requirements set forth by the Cabinet for Health and Family Services.
  3. The cabinet may promulgate administrative regulations to establish a fee that:
    1. Shall be the total of the operational and administrative costs of the programs to the cabinet and to agencies as defined in KRS 211.185 ;
    2. Beginning on March 17, 2020, until December 31, 2020, shall not increase more than twenty-five percent (25%) of the fee amount on March 17, 2020; and
    3. Beginning on or after January 1, 2021, shall not increase more than five percent (5%) for each year thereafter; and
    4. Shall be paid by persons certified as installers, except master plumbers licensed pursuant to KRS Chapter 318.
  4. The cabinet may revoke or suspend any certification issued pursuant to this section upon proof that the certified person has:
    1. Knowingly violated the provisions of this chapter or the regulations of the cabinet;
    2. Practiced fraud or deception in applying for or obtaining a certificate;
    3. Is incompetent to install on-site sewage disposal systems;
    4. Permitted the certification to be used directly or indirectly by another to install on-site sewage disposal systems; or
    5. Is guilty of other unprofessional or dishonorable conduct of a character likely to deceive or defraud the public.
  5. Upon appeal of any decision to revoke or suspend a certification, an administrative hearing shall be conducted in accordance with KRS Chapter 13B.
  6. Nothing in this section shall be construed to condone the installation of on-site sewage disposal systems contrary to specifications for these systems established by the cabinet.

History. Enact. Acts 1986, ch. 354, § 2, effective July 15, 1986; 1996, ch. 318, § 106, effective July 15, 1996; 1998, ch. 426, § 298, effective July 15, 1998; 2005, ch. 99, § 355, effective June 20, 2005; 2018 ch. 136, § 8, effective July 1, 2019; 2020 ch. 21, § 6, effective March 17, 2020.

211.360. Certification of inspectors.

  1. The cabinet shall establish a program to certify persons as inspectors solely for on-site sewage disposal systems. Persons eligible for certification shall include sanitarians, engineers, soil scientists, and other qualified persons as determined by regulation by the cabinet. In order to be certified by the cabinet, eligible persons shall:
    1. Attend a training session concerning the proper construction and installation of on-site sewage disposal systems conducted by the cabinet;
    2. Indicate sufficient skill and competency necessary for proper inspection of on-site sewage disposal systems by adequate performance on an examination prescribed by the cabinet;
    3. Pay a reasonable fee related to the cost of conducting training and certification sessions to be utilized to defray the cost of conducting the sessions; and
    4. Renew the certificates of competence at reasonable intervals.
  2. No person shall approve the construction, installation, or alteration of an on-site sewage disposal system unless it is in conformance with the regulations issued by the cabinet.
  3. The cabinet may revoke or suspend any certification issued pursuant to this section upon proof that the certified person has:
    1. Knowingly violated the provisions of this chapter or the regulations of the cabinet;
    2. Practiced fraud or deception in applying for or obtaining a certificate;
    3. Is incompetent to perform inspection services;
    4. Permitted the certification to be used directly or indirectly by another to obtain or perform inspections; or
    5. Is guilty of such other unprofessional or dishonorable conduct of a character likely to deceive or defraud the public.
  4. Upon appeal of any decision to revoke or suspend a certification, an administrative hearing shall be conducted in accordance with KRS Chapter 13B.

History. Enact. Acts 1982, ch. 392, § 3, effective July 15, 1982; 1996, ch. 318, § 107, effective July 15, 1996.

Opinions of Attorney General.

A sanitarian who performs a percolation test as a private business should not take any part in the decision on a permit for a subsurface disposal system that relies on the percolation test he performed. Additionally, the sanitarian should not perform the inspection of the installation of that same subsurface disposal system because of the appearance of conflicting loyalties presented. OAG 82-338 .

211.365. Office space.

In order to provide for the issuance of plumbing installation permits pursuant to KRS Chapter 318 and on-site sewage disposal permits pursuant to this chapter in a manner convenient to the public, the Cabinet for Health and Family Services shall provide office space in the local departments of health for the district plumbing inspector without fee or charge to the Department of Housing, Buildings and Construction.

History. Enact. Acts 1982, ch. 392, § 4, effective July 15, 1982; 1998, ch. 426, § 299, effective July 15, 1998; 2005, ch. 99, § 356, effective June 20, 2005; 2010, ch. 24, § 311, effective July 15, 2010.

211.370. Issuance of plumbing installation permits for on-site sewage disposal systems — Local board of health as agent for cabinet — Regulations.

The commissioner of the Department for Public Health shall, upon written request from a local board of health, authorize the local board of health to serve as its agent to issue permits for on-site sewage disposal systems as described in KRS 211.350 within that area of local board jurisdiction. As agent, the authorized local board of health shall act for the cabinet in issuing permits and granting variances for on-site sewage disposal systems. Actions by the local board of health shall comply with the regulations established by the cabinet relating to on-site sewage disposal systems. The local board of health shall include in the written request a procedure for administering this section. The local board of health may adopt regulations relating to the proper operation and maintenance of on-site sewage disposal systems. In counties containing a city of the first class or a consolidated local government and in urban-counties, the local board of health may adopt regulations relating to the proper construction, installation, and alteration of on-site sewage disposal systems which are more stringent than the regulations adopted by the cabinet.

History. Enact. Acts 1976 (Ex. Sess.), ch. 13, § 30; 1978, ch. 155, § 154, effective June 17, 1978; 1978, ch. 244, § 1, effective June 17, 1978; repealed, reenact. and amend., Acts 1982, ch. 392, § 10, effective July 15, 1982; 1986, ch. 354, § 4, effective July 15, 1986; 1998, ch. 426, § 300, effective July 15, 1998; 2002, ch. 346, § 202, effective July 15, 2002; 2006, ch. 191, § 2, effective July 12, 2006.

Compiler’s Notes.

This section was formerly compiled as KRS 318.310 and was repealed, reenacted and amended as this section by Acts 1982, ch. 392, § 10.

Opinions of Attorney General.

A city cannot, pursuant to its zoning authority and jurisdiction, change or nullify the frontage restriction set by the local board of health for lots on which the construction of subsurface septic tanks are to be permitted. OAG 80-531 .

Local boards of health act as agents of the department (now cabinet) in enforcing such regulations governing on-site disposal systems and granting building permits; local regulations may be more stringent than those of the state. OAG 80-531 .

211.375. On-site sewage disposal manuals — Fees — Training of personnel.

  1. The cabinet shall solicit and collect technical information relating to improved methods for construction, use, and rehabilitation of septic tanks and drain fields and use of alternative on-site sewage disposal systems and technologies.
  2. The cabinet shall compile such information in manual form so as to identify common on-site sewage disposal problems and a range of alternative solutions to such problems. Such manuals shall be made available upon request to local boards of health, local departments of health, other agencies, and interested persons.
  3. The cabinet shall further update the information contained in the manual on an annual basis or as necessary and disseminate the updated information to such local boards of health, local departments of health, other agencies, and interested persons.
  4. The cabinet shall develop a nontechnical manual for use by the homeowner to be disseminated upon request to interested agencies and persons containing information on the proper operation, use and maintenance of septic tanks and drain fields and other on-site sewage disposal systems.
  5. The cabinet may establish by regulation a fee or schedule of fees for on-site sewage disposal manuals based on the cost of publication and dissemination of such manuals.
  6. The cabinet shall provide training and continuing education programs to field personnel relating to on-site sewage disposal.

History. Enact. Acts 1980, ch. 148, § 1, effective July 15, 1980; repealed and reenact., Acts 1982, ch. 392, § 11, effective July 15, 1982.

Compiler’s Notes.

This section was formerly compiled as KRS 318.330 and was repealed and reenacted as this section by Acts 1982, ch. 392, § 11.

211.380. Permit for approved on-site sewage disposal system other than a septic tank.

If a proposed site fails to meet the criteria established by the cabinet for a septic tank system, a permit shall be granted for an approved on-site sewage disposal system other than a septic tank, including modified subsurface systems, mechanical systems, and any other system appropriate to the individual characteristics of the site which will provide sewage treatment that meets established water quality criteria and health standards.

History. Enact. Acts 1976 (1st Ex. Sess.), ch. 13, § 31; repealed, reenact. and amend., Acts 1982, ch. 392, § 12, effective July 15, 1982.

Compiler’s Notes.

This section was formerly compiled as KRS 318.320 and was repealed, reenacted and amended as this section by Acts 1982, ch. 392, § 12.

Fluidized Bed Energy Production Facilities

211.390. Definitions for KRS 211.392.

  1. “Fluidized bed energy production facility” shall mean a fluidized bed combustion unit, installed in a plant facility located in this state, which is fueled by Kentucky coal and which employs fluidized bed combustion technology, installed on or after August 1, 1986, to burn said coal for the purpose of producing thermal, mechanical or electrical energy. The energy produced through the employment of the fluidized bed combustion technology must constitute the major energy source for the primary operations of the plant facility.
  2. “Fluidized bed combustion technology tax exemption certificate” shall mean that certificate issued by the Department of Revenue pursuant to KRS 211.392 .

History. Enact. Acts 1986, ch. 476, § 1, effective July 15, 1986; 1994, ch. 488, § 6, effective July 15, 1994; 2005, ch. 85, § 625, effective June 20, 2005.

211.392. Fluidized bed combustion technology tax exemption certificate. [Effective until June 29, 2021]

  1. Application for a fluidized bed combustion technology tax exemption certificate shall be filed with the Department of Revenue in the manner and form prescribed by the Department of Revenue and shall contain plans and specifications of the fluidized bed combustion unit including all materials incorporated and to be incorporated therein and a descriptive list of all equipment acquired or to be acquired by the applicant for the purpose of installing a fluidized bed combustion unit to reduce the sulfur emissions from coal combustion and any additional information deemed useful by the Department of Revenue for the proper administration of this section. If the Department of Revenue finds that the facility qualifies as a fluidized bed energy production facility, it shall enter a finding and issue a certificate to that effect. The effective date of the certificate shall be the date of issuance of the certificate.
  2. Before the denial, revocation, or modification of a fluidized bed combustion technology tax exemption certificate, the Department of Revenue shall give the applicant written notice and shall afford the applicant an opportunity for a conference. The conference shall take place within sixty (60) days following notification. The Department of Revenue shall on its own initiative revoke the certificate when any of the following appears:
    1. The certificate was obtained by fraud or misrepresentation;
    2. The holder of the certificate has failed substantially to proceed with the construction, reconstruction, installation, or acquisition of the fluidized bed combustion unit; or
    3. The fluidized combustion unit to which the certificate relates has ceased to be the major energy source for the primary operations of the plant facility.
  3. If the circumstances so require, the Department of Revenue, in lieu of revoking the certificate, may modify it.
  4. On mailing of notice of the action of the Department of Revenue revoking or modifying a certificate as provided in subsection (5) of this section, the certificate shall cease to be in force or shall remain in force only as modified as the case may require.
  5. A fluidized bed combustion technology tax exemption certificate, when issued, shall be sent by certified mail to the applicant. Notice of an order of the Department of Revenue denying, revoking, or modifying a certificate in the form of certified copies shall be sent by certified mail to the applicant or the holder.
  6. The applicant or holder of the certificate aggrieved by the refusal to issue, revocation, or modification of a fluidized bed combustion technology tax exemption certificate may appeal from the final ruling of the Department of Revenue to the Kentucky Claims Commission pursuant to KRS 49.220 .
  7. In the event of the sale, lease, or other transfer of a fluidized bed combustion unit, not involving a different location or use, the holder of the fluidized bed construction technology tax exemption certificate for the facility may transfer the certificate by written instrument to the person who, except for the transfer of the certificate, would be obligated to pay taxes on the facilities. The transferee shall become the holder of the certificate and shall have all rights pertaining thereto, effective as the date of transfer, together with a copy of the instrument of transfer to the Department of Revenue.
  8. In the event a fluidized bed combustion unit for which an exemption certificate is held ceases to be used for the purpose of generating energy or is used for a purpose other than that for which the exemption certificate was granted, the holder of the certificate shall give written notice by certified mail of such change to the Department of Revenue.
  9. The fluidized bed combustion technology tax exemption certificate, upon approval, shall exempt the facilities from taxes outlined in the provision of this section and KRS Chapters 132, 136, 138, and 139. Each exemption certificate shall remain in force for a period of eight (8) years from the date of issuance and at the end of said period shall lapse. Any fluidized bed combustion unit previously exempt under the terms of this section shall not be eligible for recertification upon completion of the eight (8) year certificate period.

History. Enact. Acts 1986, ch. 476, § 2, effective July 15, 1986; 1990, ch. 325, § 27, effective July 13, 1990; 1994, ch. 488, § 7, effective July 15, 1994; 2005, ch. 85, § 626, effective June 20, 2005; 2017 ch. 74, § 94, effective June 29, 2017.

211.392. Fluidized bed combustion technology tax exemption certificate. [Effective June 29, 2021]

  1. Application for a fluidized bed combustion technology tax exemption certificate shall be filed with the Department of Revenue in the manner and form prescribed by the Department of Revenue and shall contain plans and specifications of the fluidized bed combustion unit including all materials incorporated and to be incorporated therein and a descriptive list of all equipment acquired or to be acquired by the applicant for the purpose of installing a fluidized bed combustion unit to reduce the sulfur emissions from coal combustion and any additional information deemed useful by the Department of Revenue for the proper administration of this section. If the Department of Revenue finds that the facility qualifies as a fluidized bed energy production facility, it shall enter a finding and issue a certificate to that effect. The effective date of the certificate shall be the date of issuance of the certificate.
  2. Before the denial, revocation, or modification of a fluidized bed combustion technology tax exemption certificate, the Department of Revenue shall give the applicant written notice and shall afford the applicant an opportunity for a conference. The conference shall take place within sixty (60) days following notification. The Department of Revenue shall on its own initiative revoke the certificate when any of the following appears:
    1. The certificate was obtained by fraud or misrepresentation;
    2. The holder of the certificate has failed substantially to proceed with the construction, reconstruction, installation, or acquisition of the fluidized bed combustion unit; or
    3. The fluidized combustion unit to which the certificate relates has ceased to be the major energy source for the primary operations of the plant facility.
  3. If the circumstances so require, the Department of Revenue, in lieu of revoking the certificate, may modify it.
  4. On mailing of notice of the action of the Department of Revenue revoking or modifying a certificate as provided in subsection (5) of this section, the certificate shall cease to be in force or shall remain in force only as modified as the case may require.
  5. A fluidized bed combustion technology tax exemption certificate, when issued, shall be sent by certified mail to the applicant. Notice of an order of the Department of Revenue denying, revoking, or modifying a certificate in the form of certified copies shall be sent by certified mail to the applicant or the holder.
  6. The applicant or holder of the certificate aggrieved by the refusal to issue, revocation, or modification of a fluidized bed combustion technology tax exemption certificate may appeal from the final ruling of the Department of Revenue to the Board of Tax Appeals pursuant to KRS 49.220 .
  7. In the event of the sale, lease, or other transfer of a fluidized bed combustion unit, not involving a different location or use, the holder of the fluidized bed construction technology tax exemption certificate for the facility may transfer the certificate by written instrument to the person who, except for the transfer of the certificate, would be obligated to pay taxes on the facilities. The transferee shall become the holder of the certificate and shall have all rights pertaining thereto, effective as the date of transfer, together with a copy of the instrument of transfer to the Department of Revenue.
  8. In the event a fluidized bed combustion unit for which an exemption certificate is held ceases to be used for the purpose of generating energy or is used for a purpose other than that for which the exemption certificate was granted, the holder of the certificate shall give written notice by certified mail of such change to the Department of Revenue.
  9. The fluidized bed combustion technology tax exemption certificate, upon approval, shall exempt the facilities from taxes outlined in the provision of this section and KRS Chapters 132, 136, 138, and 139. Each exemption certificate shall remain in force for a period of eight (8) years from the date of issuance and at the end of said period shall lapse. Any fluidized bed combustion unit previously exempt under the terms of this section shall not be eligible for recertification upon completion of the eight (8) year certificate period.

HISTORY: Enact. Acts 1986, ch. 476, § 2, effective July 15, 1986; 1990, ch. 325, § 27, effective July 13, 1990; 1994, ch. 488, § 7, effective July 15, 1994; 2005, ch. 85, § 626, effective June 20, 2005; 2017 ch. 74, § 94, effective June 29, 2017; 2021 ch. 185, § 82, effective June 29, 2021.

Use of Toilet Facilities in Public or Semipublic Building

211.394. Definitions for KRS 211.394 and 211.395.

As used in this section and KRS 211.395 :

  1. “Department” means the Department for Public Health;
  2. “Eligible medical condition” means Crohn’s disease, ulcerative colitis, irritable bowel syndrome or other inflammatory bowel disease, or any other medical condition that requires immediate access to a toilet facility; and
  3. “Person” means an individual who is lawfully on the premises of a public or semipublic building regulated by KRS 211.180 .

History. Enact. Acts 2008, ch. 23, § 1, effective July 15, 2008.

211.395. Use of toilet facilities in public or semipublic building — Conditions — Immunity from civil liability.

  1. The department shall inform the operator of any public or semipublic building regulated by KRS 211.180 that has a toilet facility for its employees that a person may use that facility during normal business hours if all of the following conditions are met:
    1. The person requesting the use of the employee toilet facility provides the public or semipublic building operator with evidence of the person’s eligible medical condition including:
      1. A copy of a statement signed by a physician, defined in KRS 311.550 , a physician assistant, defined in KRS 311.840 , or an advanced practice registered nurse, defined in KRS 314.011 , that indicates the person has an eligible medical condition or uses an ostomy device; or
      2. An identification card that is issued by a nationally recognized health organization and that indicates the person has an eligible medical condition or uses an ostomy device;
    2. Three (3) or more employees of the public or semipublic building are on the premises at the time the person requests use of the employee toilet facility;
    3. The public or semipublic building operator does not normally make a toilet facility available to the public;
    4. The employee toilet facility is not located in an area where providing access would create an obvious health or safety risk to the person requesting to use the facility or an obvious risk to the public or semipublic building; and
    5. A public toilet facility is not immediately accessible to the person.
    1. The public or semipublic building operator is not civilly liable for any act or omission in allowing a person that has an eligible medical condition or uses an ostomy device to use an employee toilet facility that is not a public rest room if the act or omission meets the following requirements: (2) (a) The public or semipublic building operator is not civilly liable for any act or omission in allowing a person that has an eligible medical condition or uses an ostomy device to use an employee toilet facility that is not a public rest room if the act or omission meets the following requirements:
      1. It is not willful or grossly negligent; and
      2. It occurs in an area of the public or semipublic building that is not accessible to the public.
    2. The public or semipublic building operator is not civilly liable to any individual accompanying a person with an eligible medical condition or who uses an ostomy device upon the same conditions and requirements as those set forth in subsection (2)(a) of this section.
  2. The public or semipublic building operator is not required to make any physical changes to an employee toilet facility under KRS 211.394 and this section.

History. Enact. Acts 2008, ch. 23, § 2, effective July 15, 2008; 2010, ch. 85, § 36, effective July 15, 2010.

Kentucky Physicians Care Program

211.400. Kentucky Physicians Care Program — Provision of primary health care services to eligible individuals — Volunteer networks — Advisory committees. [Repealed]

History. Enact. Acts 2006, ch. 155, § 1, effective July 12, 2006; 2013, ch. 118, § 6, effective June 25, 2013; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

211.402. Application for services from Kentucky Physicians Care Program — Referral by Department for Community Based Services — Fee for services prohibited. [Repealed]

History. Enact. Acts 2006, ch. 155, § 2, effective July 12, 2006; 2013, ch. 118, § 7, effective June 25, 2013; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

Dental Scholarships

211.405. Purpose of rural dental scholarship fund.

In enacting legislation relating to a rural Kentucky dental scholarship fund, the General Assembly has as its purpose the alleviation of the shortage of dentists in certain rural areas of the Commonwealth.

History. Enact. Acts 1958, ch. 35, § 1, effective June 19, 1958.

211.410. Definition for KRS 211.405 to 211.460.

As used in KRS 211.405 to 211.460 , unless the context requires otherwise, “board” means the Kentucky Board of Dentistry.

History. Enact. Acts 1958, ch. 35, § 2, effective June 19, 1958.

211.420. Rural Kentucky dental scholarship fund — Granting scholarships.

  1. There is hereby established within the Cabinet for Health and Family Services, a rural Kentucky dental scholarship fund.
  2. There shall be available each fiscal year to applicants selected by the board with the approval of the Dental Health Program of the Cabinet for Health and Family Services, no less than ten (10) scholarships for the study of dentistry leading to the attainment of the degree of Doctor of Dental Surgery, or some equivalent degree.
  3. The amount of each scholarship shall be a reasonable sum determined by the board, but shall not be less than one thousand five hundred dollars ($1,500) per annum.
  4. In granting scholarships the board shall make a careful and full investigation of the ability, character, and qualifications of each applicant, and may personally examine each applicant. The board shall, whenever possible, grant financial assistance to the applicants with the greatest financial need, provided such persons are found to possess such qualities as give reasonable assurance of their successfully completing the course of study made possible by the scholarship.

History. Enact. Acts 1958, ch. 35, § 3, effective June 19, 1958; 1974, ch. 74, Art. VI, § 68; 1974, ch. 231, § 1; 1974, ch. 365, § 1; 1998, ch. 426, § 301, effective July 15, 1998; 2005, ch. 99, § 357, effective June 20, 2005.

211.430. Eligibility of applicants — Contract to practice.

  1. To be eligible for a scholarship made available under KRS 211.405 to 211.460 , an applicant must:
    1. Have been a resident of this Commonwealth for not less than five (5) years immediately preceding the date of application;
    2. Be acceptable for enrollment in a dental school accredited by the Council on Dental Education of the American Dental Association, and approved by the board; and
    3. Furnish satisfactory evidence to the board that he does not have sufficient financial resources to enable him to study dentistry without assistance.
  2. Before a scholarship is granted, the applicant shall contract in writing with the board, that he will, within six (6) months from the date he completes his term of study, engage in the practice of dentistry in a locality or localities within this Commonwealth to be designated by the Dental Health Program of the Cabinet for Health and Family Services, at the rate of one (1) year for each annual scholarship received, or proportional time for partial scholarships.

History. Enact. Acts 1958, ch. 35, § 4, effective June 19, 1958; 1974, ch. 231, § 2; 1974, ch. 365, § 2; 1998, ch. 426, § 302, effective July 15, 1998; 2005, ch. 99, § 358, effective June 20, 2005.

211.440. Effect of breach of contract.

  1. If the recipient of a scholarship fails, without justifiable cause to practice dentistry in the locality designated, the entire amount of scholarship benefits received under the provisions of KRS 211.405 to 211.460 plus six percent (6%) interest thereon, shall become due and payable. However, where the board determines there is justifiable cause for the failure to practice, it may relieve the recipient of the obligation to practice, and shall provide for repayment of the amount received plus six percent (6%) interest on any terms it deems proper.
  2. Upon recommendation of the board, the Attorney General shall institute proceedings for the purpose of recovering any amount due the Commonwealth under the provisions of this section.
  3. Failure of a recipient of a scholarship to perform his obligations with respect to his contract to practice in a designated locality shall constitute grounds for revocation of his license to practice dentistry within the Commonwealth.

History. Enact. Acts 1958, ch. 35, § 5, effective June 19, 1958.

211.450. Administrative regulations.

The board may promulgate reasonable rules and regulations for the purpose of carrying out the provisions of KRS 211.405 to 211.460 .

History. Enact. Acts 1958, ch. 35, § 6, effective June 19, 1958.

211.460. Disposition of funds.

Funds appropriated for the purpose of the rural Kentucky dental scholarship fund, and sums received as a result of violations of service agreements shall be placed in the State Treasury to the credit of a trust or agency fund for the purpose of carrying out the provisions of KRS 211.405 to 211.460 . Provided, however, that any sums in excess of fifty thousand dollars ($50,000) at the end of each biennium shall revert to the general fund.

History. Enact. Acts 1958, ch. 35, § 7, effective June 19, 1958.

Utilization Review

211.461. Definitions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 451, § 1, effective July 13, 1990; 1998, ch. 426, § 303, effective July 15, 1998) was repealed by Acts 2000, ch. 262, § 35, effective July 14, 2000. For present law, see KRS 304.17A-600 .

211.462. Registration of private review agent required — Exceptions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 451, § 2, effective July 13, 1990) was repealed by Acts 2000, ch. 262, § 35, effective July 14, 2000. For present law, see KRS 304.17A-605 .

211.463. Duties of private review agent regarding utilization review. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 451, § 3, effective July 13, 1990) was repealed by Acts 2000, ch. 262, § 35, effective July 14, 2000. For present law, see KRS 304.17A-607 .

211.464. Regulations — Reporting requirements — Copies of policies or procedures — List of registered agents. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 451, § 4, effective July 13, 1990; 1996, ch. 318, § 109, effective July 15, 1996; 1998, ch. 426, § 304, effective July 15, 1998) was repealed by Acts 2000, ch. 262, § 35, effective July 14, 2000. For present law, see KRS 304.17A-609 .

211.465. Procedures for registration and renewal. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 451, § 5, effective July 13, 1990) was repealed by Acts 2000, ch. 262, § 35, effective July 14, 2000. For present law, see KRS 304.17A-607 .

211.466. Enjoining operation of improperly registered agent. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 451, § 6, effective July 13, 1990) was repealed by Acts 2000, ch. 262, § 35, effective July 14, 2000. For present law, see KRS 304.17A-607 .

Traumatic Brain Injuries

211.470. Definitions for KRS 211.470 to 211.478.

As used in KRS 211.470 to 211.478 :

  1. “Board” means the Traumatic Brain Injury Trust Fund Board created pursuant to KRS 211.472 ;
  2. “Cabinet” means the Cabinet for Health and Family Services;
  3. “Traumatic brain injury” means a partial or total disability caused by injury to the central nervous system from physical trauma, damage to the central nervous system from anoxia, hypoxic episodes, allergic conditions, toxic substances, or other acute medical clinical incidents resulting in impaired cognitive abilities or impaired physical functioning. “Traumatic brain injury” does not include:
    1. Strokes that can be treated in nursing facilities providing routine rehabilitation services;
    2. Spinal cord injuries for which there are no known or obvious injuries to the intracranial central nervous system;
    3. Progressive dementias and other mentally impairing conditions;
    4. Depression and psychiatric disorders in which there is no known or obvious central nervous system damage;
    5. An intellectual disability and birth defect related disorders of long standing nature; or
    6. Neurological degenerative, metabolic, and other medical conditions of a chronic, degenerative nature; and
  4. “Trust fund” means the traumatic brain injury trust fund created pursuant to KRS 211.476 .

History. Enact. Acts 1998, ch. 124, § 1, effective July 15, 1998; 2000, ch. 124, § 1, effective July 14, 2000; 2005, ch. 99, § 359, effective June 20, 2005; 2012, ch. 146, § 99, effective July 12, 2012.

211.472. Kentucky Traumatic Brain Injury Trust Fund Board.

  1. The Kentucky Traumatic Brain Injury Trust Fund Board is hereby created for the purpose of administering the trust fund. The board shall be composed of nine (9) members including the secretary of the Cabinet for Health and Family Services or the secretary’s designee, the executive director of the Brain Injury Association of Kentucky or the executive director’s designee, the state medical epidemiologist, and the following members, to be appointed by the Governor:
    1. One (1) member shall be a neurosurgeon;
    2. One (1) member shall be a neuropsychologist or psychiatrist;
    3. One (1) member shall be a rehabilitation specialist;
    4. One (1) member shall be a social worker experienced in working with brain-injured individuals; and
    5. Two (2) members shall be family members of or individuals with a brain injury.
  2. Board members shall not be compensated for serving, but shall be reimbursed for ordinary travel expenses, including meals and lodging incurred in the performance of their duties.
  3. The terms of appointed board members shall be four (4) years, except that the terms of initial members shall be staggered to end as follows:
    1. Two (2) on June 30, 2000;
    2. Two (2) on June 30, 2001; and
    3. Two (2) on June 30, 2002.
  4. At the end of a term, a member shall continue to serve until a successor is appointed and qualifies. A member who is appointed after a term has begun shall serve the rest of the term and until a successor is appointed and qualifies. A member who serves two (2) consecutive four (4) year terms shall not be reappointed for four (4) years after completion of those terms.
  5. A majority of the full authorized membership shall constitute a quorum.
  6. The board shall elect, by a majority vote, a director who shall be the presiding officer of the board, preside at all meetings, and coordinate the functions and activities of the board. The director shall be elected or reelected for each calendar year.
  7. The board may establish any organizational structure it determines is necessary to accomplish its functions and duties, including the hiring of any necessary support personnel. The administrative costs of the board shall be limited to three percent (3%) of the proceeds from the trust fund.
  8. Meetings of the board shall be held at least twice a year but may be held more frequently, as deemed necessary, subject to call by the director or by the request of a majority of the board members.
  9. The board shall be attached to the cabinet for administrative purposes.

History. Enact. Acts 1998, ch. 124, § 2, effective July 15, 1998; 2000, ch. 124, § 2, effective July 14, 2000; 2005, ch. 99, § 360, effective June 20, 2005.

211.474. Operating parameters — Duties.

The board shall:

  1. Promulgate administrative regulations necessary to carry out the provisions of KRS 211.470 to 211.478 ;
  2. Formulate policies and procedures for determining individual eligibility for assistance from the trust fund in accordance with the following guidelines:
    1. The trust fund shall serve as a funding source of last resort for residents of the Commonwealth of Kentucky. To be eligible for assistance from the trust fund, an individual must have exhausted all other funding sources that cover the type of services sought through the trust fund. Individuals who have continuing health insurance benefits, including Medicaid, may access the trust fund for services that are needed but not covered by insurance or any other funding source. Individuals who qualify for institutional care through Medicaid shall not qualify for services through the trust fund;
    2. All individuals receiving assistance from the fund shall receive case management services;
    3. Expenditures on behalf of any one (1) brain-injured individual may not exceed fifteen thousand dollars ($15,000) for any twelve (12) month period, and may not exceed a lifetime maximum of sixty thousand dollars ($60,000). At its discretion and subject to fund availability, the board may waive the expenditure or time limitations or both in special circumstances;
    4. Services covered by the trust fund shall include:
      1. Case management;
      2. Community residential services;
      3. Structured day program services;
      4. Psychological and mental health services;
      5. Prevocational services;
      6. Supported employment;
      7. Companion services;
      8. Respite care;
      9. Occupational therapy; and
      10. Speech and language therapy;
    5. Covered services shall not include institutionalization, hospitalization, or medications;
  3. Establish a confidential medical registry for traumatic brain and spinal cord injuries occurring in the Commonwealth of Kentucky, or to residents of the Commonwealth of Kentucky.
    1. The board may promulgate administrative regulations requiring licensed or certified professionals or health services providers to report the occurrence of brain and spinal cord injuries, relevant medical and epidemiological information about the injuries, and other information describing the circumstances of the injury to the board or its designated agent. The reporting of data by licensed hospitals under this section shall be limited to that which is reported to the cabinet pursuant to KRS 216.2920 to 216.2929 and the board shall obtain this data from the cabinet. Each licensed hospital shall grant the board, upon presentation of proper identification, access to the medical records of patients with reportable brain and spinal cord injuries for the sole purpose of collecting additional information that is not available in the data obtained from the cabinet. All costs associated with copying medical records shall be borne by the board. No liability of any kind shall arise or be enforced against any licensed hospital or hospital employee for providing the board access to a patient’s medical record.
    2. The board and its designated agent, if one is appointed, shall observe the same confidentiality requirements established for the Kentucky birth surveillance registry in KRS 211.670 ;
  4. Investigate the needs of brain-injured individuals and identify gaps in current services;
  5. Assist the cabinet in developing programs for brain-injured individuals;
  6. Monitor and evaluate services provided by the trust fund; and
  7. Provide the Governor, the General Assembly, and the Legislative Research Commission an annual report by January 1 of each year summarizing the activities of the board and the trust fund.

History. Enact. Acts 1998, ch. 124, § 3, effective July 15, 1998; 2000, ch. 124, § 3, effective July 14, 2000.

211.476. Traumatic brain injury trust fund.

  1. The traumatic brain injury trust fund is created as a separate revolving fund.
  2. The trust fund may receive the proceeds from grants, contributions, appropriations, and any other moneys that may be made available for the purposes of the trust fund.
  3. Expenditures from the trust fund on behalf of the medical registry created under KRS 211.474 shall not exceed one hundred twenty-five thousand dollars ($125,000) for any fiscal year.
  4. Funds unexpended at the close of a fiscal year shall not lapse but shall be carried forward to the next fiscal year.
  5. Any interest earnings of the trust fund shall become a part of the trust fund and shall not lapse to the general fund.

History. Enact. Acts 1998, ch. 124, § 4, effective July 15, 1998; 2002, ch. 183, § 20, effective August 1, 2002.

211.478. Distribution of trust fund moneys.

Trust fund moneys shall be distributed for the following purposes:

  1. To provide services to individuals suffering from conditions that qualify for assistance from the fund, in accordance with criteria established by the board in KRS 211.474 ;
  2. To establish and maintain a state medical registry for traumatic brain and spinal cord injuries; and
  3. To meet the obligations incurred by the board in meeting its duties in accordance with the provisions of KRS 211.472 and 211.474 .

History. Enact. Acts 1998, ch. 124, § 5, effective July 15, 1998.

Kentucky Cardiovascular Disease Initiative

211.480. Legislative findings. [Repealed]

History. Enact. Acts 2007, ch. 126, § 1, effective June 26, 2007; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 2007, ch. 126, § 1, effective June 26, 2007) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

211.481. Kentucky Cardiovascular Disease Initiative — Goals — KCDI board. [Repealed]

History. Enact. Acts 2007, ch. 126, § 2, effective June 26, 2007; 2010, ch. 24, § 312, effective July 15, 2010; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 2007, ch. 126, § 2, effective June 26, 2007) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

211.482. Business plans and benchmark measures — Presentation of plans to Interim Joint Committees — Updates to be provided — Public-private collaboration. [Repealed]

History. Enact. Acts 2007, ch. 126, § 3, effective June 26, 2007; 2008, ch. 98, § 12, effective July 15, 2008; 2008, ch. 113, § 15, effective July 15, 2008; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 2007, ch. 126, § 3, effective June 26, 2007) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

211.483. KCDI fund. [Repealed]

History. Enact. Acts 2007, ch. 126, § 4, effective June 26, 2007; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 2007, ch. 126, § 4, effective June 26, 2007) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

Statewide Trauma Care Program

211.490. Legislative findings concerning provision of trauma care.

The General Assembly finds that:

  1. Trauma is a severe health problem in this state and a major cause of death and long-term disability;
  2. Trauma care is an essential public service;
  3. Trauma care is significantly limited in many parts of Kentucky, particularly in rural areas where there is a growing danger that some communities may not have adequate emergency care;
  4. It is essential for persons in need of trauma care to receive that care within sixty (60) minutes immediately following injury, referred to as the “golden hour,” for that is when the potential for survival is the greatest and the need for treatment for shock or injury is most critical;
  5. Kentucky’s emergency preparedness efforts require the establishment of an efficient statewide trauma care system that can be mobilized to save the lives of trauma patients who are victims of terrorism or natural disasters;
  6. Trauma centers save lives and money because access to trauma care can mean the difference between full recovery and serious disability that requires expensive long-term care and results in a loss of economic productivity;
  7. Regional preparedness planning has identified trauma care as a priority, and some grant funding has been obtained to initiate trauma care planning;
  8. It is in the best interests of the citizens of Kentucky to establish an efficient and well-coordinated statewide trauma system to reduce costs of medical care and the greater economic impact of lost wages and productivity and to reduce the incidence of inappropriate and inadequate trauma care and emergency medical services; and
  9. Existing trauma centers are facing an increasing number of uninsured patients, declining reimbursement, and rising malpractice insurance premiums that threaten continued community access to trauma care. Therefore, financial assistance is needed to support existing trauma centers and establish new trauma centers.

History. Enact. Acts 2008, ch. 25, § 1, effective July 15, 2008.

211.492. Definitions for KRS 211.490 to 211.496.

For the purposes of KRS 211.490 to 211.496 :

  1. “Trauma” has the same meaning as defined in KRS 311A.010 ;
  2. “Trauma center” means a hospital that has institutional, surgical, and specialty care and commitment to treating individuals with injuries and that has been verified by the American College of Surgeons or by the Department for Public Health; and
  3. “Trauma center verification” means the process by which a trauma center is evaluated and designated as a trauma center by the American College of Surgeons or the Department for Public Health.

History. Enact. Acts 2008, ch. 25, § 2, effective July 15, 2008.

211.494. Statewide trauma care program — Goals — Advisory committee — Components of trauma care system — Coordination of activities — Confidentiality of data — Reports — Administrative regulations.

  1. A comprehensive statewide trauma care program shall be established within the Department for Public Health. The statewide trauma care program shall consist of, at a minimum, a statewide trauma care director and a state trauma registrar funded through available federal funds or, to the extent that funds are available, by the trauma care system fund established in KRS 211.496 . The department may contract with outside entities to perform these functions.
  2. The statewide trauma care system shall address, at a minimum, the following goals:
    1. To reduce or prevent death and disability from trauma without regard to the patient’s insurance coverage or ability to pay for services;
    2. To provide optimal care for trauma victims by utilization of best practices protocols and guidelines;
    3. To minimize the economic impact of lost wages and productivity for trauma patients; and
    4. To contain costs of trauma care.
    1. The Department for Public Health shall establish an advisory committee to assist in the development, implementation, and continuation of its duties. (3) (a) The Department for Public Health shall establish an advisory committee to assist in the development, implementation, and continuation of its duties.
    2. The advisory committee shall consist of eighteen (18) members to be appointed by the secretary of the Cabinet for Health and Family Services and shall be composed of representatives from the following agencies and organizations:
      1. The Department for Public Health;
      2. The Kentucky Board of Medical Licensure;
      3. The Kentucky Board of Nursing;
      4. The Kentucky Board of Emergency Medical Services;
      5. The Kentucky Medical Association;
      6. The Kentucky Hospital Association;
      7. The Kentucky Committee on Trauma of the American College of Surgeons;
      8. One (1) representative from each verified Level I trauma center;
      9. One (1) hospital representative from a Level II verified trauma center, one (1) hospital representative from a Level III verified trauma center, and one (1) hospital representative from a Level IV verified trauma center. The Kentucky Hospital Association shall submit recommendations to the secretary for each of the three (3) members appointed under this subdivision;
      10. The Kentucky Chapter of the American College of Emergency Physicians;
      11. The Kentucky Chapter of the Emergency Nurses Association;
      12. The Kentucky Transportation Cabinet;
      13. Two (2) members at large, one (1) of whom shall be a health care consumer;
      14. One (1) representative with extensive experience in injury prevention programs; and
      15. One (1) representative with pediatric trauma experience.
    3. Members of the advisory committee shall serve for a period of four (4) years and shall serve until a successor is appointed, except that initial terms shall be staggered and one-third (1/3) of the members shall be appointed to four (4) year terms, one-third (1/3) of the members shall be appointed to three (3) year terms, and one-third (1/3) of the members shall be appointed for two (2) year terms.
    4. The advisory committee shall meet at least on a quarterly basis. The committee shall elect a chair, a vice chair, and a secretary from among its members and adopt rules of governance at the first meeting in each fiscal year. The first meeting of the advisory committee shall occur before September 30, 2008.
    5. Appointed members shall serve without compensation but may receive reimbursement for actual and necessary expenses relating to the duties of the advisory committee in accordance with state regulations relating to travel reimbursement.
    6. Expenses associated with the advisory committee shall be paid by the trauma care system fund established in KRS 211.496 , to the extent funds are available.
  3. The statewide trauma care director and the advisory committee shall develop and implement a statewide trauma care system, integrated with the public health system for injury prevention, that recognizes levels of care for the appropriate delivery of a full range of medical services to all trauma patients in the Commonwealth. The statewide trauma care system shall include but is not limited to:
    1. Development and implementation of trauma prevention and education initiatives;
    2. Facilitation of appropriate education and continuing education about trauma care and procedures for physicians, nurses, and emergency medical services personnel;
    3. Development and statewide distribution of guidelines and protocols for the care and treatment of trauma victims that include the needs of special populations and are fully integrated with all available resources, including but not limited to emergency medical services, physicians, nurses, and hospitals;
    4. Voluntary hospital trauma center verification through the American College of Surgeons or the Department for Public Health;
    5. Local and regional triage and transport protocols for use by the Kentucky Board of Emergency Medical Services, emergency medical services providers, and emergency rooms; and
    6. Continuing quality assurance and peer review programs.
  4. The Department for Public Health or the statewide trauma care director and the advisory committee established in this section shall coordinate activities related to the care of trauma patients with other state agencies and boards that are directly or indirectly involved with care of injured persons. Upon request of the Department for Public Health or the statewide trauma care director, other state agencies and boards shall assist and facilitate the development and implementation of a statewide trauma care system.
  5. Data obtained through a trauma registry or other data collected pursuant to KRS 211.490 to 211.496 shall be confidential and for use solely by the Department for Public Health, the statewide trauma care director, the advisory committee, and persons or public or private entities that participate in data collection for the trauma registry. Personal identifying information that is collected for use in the trauma registry shall not be subject to discovery or introduction into evidence in any civil action.
  6. The statewide trauma care director shall report information on the status of the development and implementation of the statewide trauma system upon request.
  7. The Department for Public Health may promulgate administrative regulations in accordance with KRS Chapter 13A to implement this section.

HISTORY: Enact. Acts 2008, ch. 25, § 3, effective July 15, 2008; 2012, ch. 158, § 45, effective July 12, 2012; 2017 ch. 80, § 40, effective June 29, 2017.

211.496. Kentucky trauma care system fund — Uses.

  1. The Kentucky trauma care system fund is created as a restricted account that shall consist of state general fund appropriations and other grants, contributions, donations, or other moneys made available for the purposes of KRS 211.490 to 211.496 . Moneys in the fund are hereby appropriated for the purposes set forth in KRS 211.490 to 211.496 .
  2. The trauma care system fund shall be used to support:
    1. Administrative costs of the Department for Public Health, the statewide trauma care director, and the advisory committee that relate to the statewide trauma care system, including public awareness and information efforts;
    2. The implementation of the statewide trauma care system;
    3. Expenses related to hospital trauma center verification;
    4. Continuing education for trauma care providers; and
    5. Support for uncompensated care provided by hospitals, physicians, emergency medical services, or other trauma care providers who provide services in a verified trauma center. Verified trauma centers shall have the authority to contract with state government for receipt of funds under this paragraph.
  3. Notwithstanding KRS 45.229 , any moneys remaining in the fund at the close of a fiscal year shall not lapse but shall be carried forward into the succeeding next fiscal year to be used for the purposes set forth in KRS 211.490 to 211.496 .
  4. Any interest earned on moneys in the account shall accrue to the fund and shall be used for the purposes set forth in KRS 211.490 to 211.496 .

History. Enact. Acts 2008, ch. 25, § 4, effective July 15, 2008.

Spinal Cord and Head Injury Research

211.500. Kentucky Spinal Cord and Head Injury Research Board.

  1. The Kentucky Spinal Cord and Head Injury Research Board is hereby created for the purpose of administering the spinal cord and head injury research trust fund created pursuant to KRS 211.504 . The board shall be composed of seven (7) members appointed by the Governor as follows:
    1. Two (2) members representing the University of Kentucky College of Medicine;
    2. Two (2) members representing the University of Louisville School of Medicine;
    3. One (1) member who has a spinal cord or head injury or who has a family member with a spinal cord or head injury;
    4. One (1) member representing the Kentucky Medical Association; and
    5. One (1) at-large member.
  2. Board members shall be reimbursed for ordinary travel expenses, including meals and lodging, incurred in the performance of duties incident to the provisions of KRS 211.500 to 211.504 .
  3. The terms of board members shall be four (4) years, except that of the members appointed after July 15, 1998, two (2) members appointed to fill the terms ending on June 30, 1999, shall serve until January 31, 2000; two (2) members appointed to fill the terms expiring on June 30, 2000, shall serve until January 31, 2001; two (2) members appointed to fill the terms expiring on June 30, 2001, shall serve until January 31, 2002; and one (1) member appointed to fill the term expiring June 30, 2002, shall serve until January 31, 2003; and subsequent appointments shall be for four (4) year terms ending on January 31.
  4. At the end of a term, a member shall continue to serve until a successor is appointed and qualifies. A member who is appointed after a term has begun shall serve the rest of the term and until a successor is appointed and qualifies.
  5. A majority of the full authorized membership of the board shall constitute a quorum.
  6. The board shall elect, by a majority vote, a chairman who shall be the presiding officer of the board, preside at all meetings, and coordinate the functions and activities of the board. The chairman shall be elected or reelected for each calendar year. The board shall have such other organization as deemed necessary and approved by the board.
  7. Meetings of the board shall be held at least twice a year but may be held more frequently as deemed necessary, subject to call by the chairman or by request of a majority of the board members. Board meetings shall concern, among other things, policy matters relating to spinal cord and head injury research projects and programs, research progress reports, authorization of projects and financial plans, and other matters necessary to carry out the intent of KRS 211.500 to 211.504 .
  8. No member of the board shall be subject to any personal liability or accountability for any loss sustained or damage suffered on account of any action or inaction of the board.
  9. The board shall be attached to the Cabinet for Health and Family Services for administrative purposes.

History. Enact. Acts 1994, ch. 403, § 4, effective July 15, 1994; 1998, ch. 194, § 5, effective July 15, 1998; 1998, ch. 426, § 305, effective July 15, 1998; 2001, ch. 26, § 1, effective June 21, 2001; 2002, ch. 183, § 21, effective August 1, 2002; 2005, ch. 99, § 361, effective June 20, 2005.

211.502. Duties of board.

The Kentucky Spinal Cord and Head Injury Research Board shall:

  1. Formulate policies and procedures necessary to carry out the provisions of KRS 211.500 to 211.504 ;
  2. Promulgate administrative regulations necessary to carry out the provisions of KRS 211.500 to 211.504 and to ensure proper expenditure of state funds appropriated for the purposes of KRS 211.500 to 211.504 ;
  3. Review and authorize spinal cord and head injury research projects and programs to be undertaken and financed under the provisions of KRS 211.500 to 211.504 ;
  4. Review and approve all progress and final research reports on projects authorized under the provisions of KRS 211.500 to 211.504 ;
  5. Ensure that state funds, appropriated for spinal cord and head injury research by KRS 211.504 or any other act, are not diverted to any other use; and
  6. Provide the status of funds appropriated under the provisions of KRS 211.504 for spinal cord and head injury research and the progress of the board in terms of the results of its spinal cord and head injury research efforts upon request.

HISTORY: Enact. Acts 1994, ch. 403, § 5, effective July 15, 1994; 2017 ch. 80, § 41, effective June 29, 2017.

211.504. Spinal cord and head injury research trust fund.

  1. The revenues received from the disbursements provided under KRS 42.320(2)(c) shall be credited to the spinal cord and head injury research trust fund which is hereby created.
  2. Federal funds or other funds which may be made available to supplement or match state funds for spinal cord and head injury research programs provided for by KRS 211.500 to 211.504 shall be credited to the trust fund created in subsection (1) of this section.
  3. Funds deposited to the credit of the spinal cord and head injury research trust fund shall be used to finance the spinal cord and head injury research programs authorized under the provisions of KRS 211.500 to 211.504 and for the operation of the Kentucky Spinal Cord and Head Injury Research Board. Funds for research shall only be used for spinal cord and head injury research undertaken by the University of Kentucky or University of Louisville.
  4. Funds unexpended at the close of a fiscal year shall not lapse but shall be carried forward to the next fiscal year or biennium, but any surplus shall be included in the budget considered and approved by the board for the ensuing period.

History. Enact. Acts 1994, ch. 403, § 6, effective July 15, 1994; 2002, ch. 183, § 22, effective August 1, 2002.

Kentucky Rare Disease Advisory Council

211.576. Kentucky Rare Disease Advisory Council — Administration by eligible entity — Chair, vice chair, members — Procedures — Grants.

  1. The Kentucky Rare Disease Advisory Council is hereby established to advise the General Assembly and state departments, agencies, commissions, authorities, and private institutions that provide services for individuals diagnosed with a rare disease.
  2. In order to reduce the administrative burden on state agencies, the council authorized under KRS 211.576 to 211.578 shall be administered by an existing eligible entity operating within the state defined in subsection (3) of this section.
  3. An eligible entity shall be a nonprofit organization as defined by 26 U.S.C. sec. 501 that operates within Kentucky and has experience working in the field of rare diseases.
  4. The Governor or his or her designee shall appoint a chair and vice chair to the advisory council to serve for an initial term of two (2) years.
  5. Upon their initial appointment, the chair and vice chair of the council shall appoint other members of the council.
  6. Upon their initial appointment, the chair and vice chair of the council shall develop and submit to the Governor and the General Assembly a written description of the intended mission of the council, including any state agencies and legislative committees it intends to advise.
  7. After the initial appointments, the Kentucky Rare Disease Advisory Council shall determine its procedures governing membership and participation, with the following exceptions:
    1. The total council membership shall not exceed twenty (20) members;
    2. All future appointed members to the council shall be approved by a majority vote of existing members;
    3. All existing and future members of the council, including the chair and vice chair, shall serve terms of two (2) years, beginning on the day of the Governor’s appointment, shall be eligible to succeed themselves, and shall serve until their successors as appointed; and
    4. Members of the council shall serve until replaced. A majority of the council members shall constitute a quorum for the purposes of conducting business.
  8. After members are appointed to the council, the council shall apply for, and accept, any grant of money from the federal government, private foundations, or other sources that may be available for programs related to rare diseases.

HISTORY: 2019 ch. 32, § 1, effective June 27, 2019.

211.577. Duties of council — Report — Response — Hearing.

  1. The Kentucky Rare Disease Advisory Council shall:
    1. Act as the advisory body on rare diseases to the General Assembly, the Governor, and to all relevant state and private agencies that provide services to, or are charged with the care of, individuals with rare diseases;
    2. Coordinate its duties with those community-based organizations and private-sector institutions within the state for the purpose of ensuring greater cooperation regarding the research, diagnosis, and treatment of rare diseases. The coordination shall require, when appropriate:
      1. Disseminating the outcomes of the advisory council’s research, identified best practices, and policy recommendations; and
      2. Utilizing common research collection and dissemination procedures;
    3. Research and determine the most appropriate methods to collect thorough and complete information on rare diseases in Kentucky and other information as the council deems necessary and appropriate to collect;
    4. Research and identify priorities relating to the quality, cost-effectiveness, and access to treatment and services provided to persons with rare diseases, and develop related policy recommendations;
    5. Identify best practices for rare disease care from other states and at the national level that may improve rare disease care in Kentucky;
    6. Develop effective strategies to raise public awareness of rare diseases in Kentucky;
    7. Ensure that the duties of the council are carried out in a manner that is coordinated and compatible with similar research being conducted at the state and federal levels;
    8. In conjunction with the state’s medical schools, the state’s schools of public health, and hospitals in the state that provide care to persons diagnosed with a rare disease, develop a list of existing, publicly accessible resources on research, diagnosis, treatment, and education relating to rare diseases; and
    9. Report biennially on its activities, findings, and recommendations relating to the quality, cost-effectiveness, and access to treatment and services for persons with rare diseases in Kentucky to the Governor, the Cabinet for Health and Family Services, and the General Assembly.
  2. Upon receipt of the council’s biennial report, the Governor and Cabinet for Health and Family Services shall within ninety (90) days issue a written response to the council detailing its efforts to improve state policies pertaining to the identification, treatment, and care of rare diseases.
  3. Upon receipt of the council’s biennial report, the Interim Joint Committee on Health and Welfare and Family Services shall within one hundred twenty (120) days convene a hearing on issues pertaining to the identification, treatment, and care of rare diseases identified by the council in its report.

HISTORY: 2019 ch. 32, § 2, effective June 27, 2019.

Legislative Research Commission Notes.

(6/27/2019). Under the authority of KRS 7.136(1), the Reviser of Statutes has modified the internal numbering of this statute from the way it appeared in 2019 Ky. Acts ch. 32, sec. 2.

211.578. Date on which council ceases to exist — Outstanding funds.

  1. The Kentucky Rare Disease Council shall cease to exist on December 1, 2028, unless otherwise reestablished by the General Assembly.
  2. If the General Assembly does not reestablish the Kentucky Rare Disease Council, any outstanding funds collected by the council as described in KRS 211.576(8) shall be donated for the purposes of improving the treatment and care of rare diseases, including for conducting research on specific rare diseases.

HISTORY: 2019 ch. 32, § 3, effective June 27, 2019.

Kentucky Commission on Aging

211.510. Definitions for KRS 211.510 to 211.560. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 106, Art. XIII, § 1) was repealed by Acts 1974, ch. 74, Art. VI, § 108, effective June 21, 1974.

211.520. Kentucky Commission on Aging. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 106, Art. XIII, § 2) was repealed by Acts 1974, ch. 74, Art. VI, § 108, effective June 21, 1974.

211.525. Director. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 171, § 2) was repealed by Acts 1974, ch. 74, Art. VI, § 108, effective June 21, 1974.

211.530. Staff assistance and administration. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 106, Art. XIII, § 3) was repealed by Acts 1972, ch. 171, § 3, effective June 21, 1974.

211.540. Expenses of citizen members — Advisory committees. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 106, Art. XIII, § 4) was repealed by Acts 1974, ch. 74, Art. VI, § 108, effective June 21, 1974.

211.550. Duties of department for human resources. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 106, Art. XIII, § 5) was repealed by Acts 1976, ch. 207, § 5. For present law see KRS 205.201 , 205.202 .

211.560. Acceptance and disposition of gifts and grants. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 106, Art. XIII, § 6) was repealed by Acts 1976, ch. 207, § 5. For present law see KRS 205.201 , 205.202 .

211.565. Commission designated state agency for administration of federal funds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 171, § 5) was repealed by Acts 1974, ch. 74, Art. VI, § 108, effective June 21, 1974.

211.570. Administration of federally funded programs for the elderly. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 193, § 1) was repealed by Acts 1974, ch. 74, Art. VI, § 108, effective June 21, 1974.

211.575. Statewide system for stroke response and treatment.

  1. As used in this section, “department” means the Department for Public Health.
  2. The Department for Public Health shall establish and implement a plan for achieving continuous quality improvement in the quality of care provided under a statewide system for stroke response and treatment. In implementing the plan, the department shall:
    1. Maintain a statewide stroke database to compile information and statistics on stroke care as follows:
      1. The database shall align with the stroke consensus metrics developed and approved by the American Heart Association, the American Stroke Association, the Centers for Disease Control and Prevention, and the Joint Commission;
      2. The department shall utilize the “Get With The Guidelines-Stroke” quality improvement program maintained by the American Heart Association and the American Stroke Association or another nationally recognized program that utilizes a data set platform with patient confidentiality standards no less secure than the statewide stroke database established in this paragraph; and
      3. Require primary stroke centers as established in KRS 216B.0425 to report to the database each case of stroke seen at the facility. The data shall be reported in a format consistent with nationally recognized guidelines on the treatment of individuals within the state with confirmed cases of stroke;
    2. To the extent possible, coordinate with national voluntary health organizations involved in stroke quality improvement to avoid duplication and redundancy;
    3. Encourage the sharing of information and data among health care providers on methods to improve the quality of care of stroke patients in the state;
    4. Facilitate communication about data trends and treatment developments among health care professionals involved in the care of individuals with stroke;
    5. Require the application of evidence-based treatment guidelines for the transition of stroke patients upon discharge from a hospital following acute treatment to community-based care provided in a hospital outpatient, physician office, or ambulatory clinic setting; and
    6. Establish a data oversight process and a plan for achieving continuous quality improvement in the quality of care provided under the statewide system for stroke response and treatment, which shall include:
      1. Analysis of the data included in the stroke database;
      2. Identification of potential interventions to improve stroke care in specific geographic regions of the state; and
      3. Recommendations to the department and the Kentucky General Assembly for improvement in the delivery of stroke care in the state.
  3. All data reported under subsection (2)(a) of this section shall be made available to the department and all government agencies or contractors of government agencies which are responsible for the management and administration of emergency medical services throughout the state.
  4. On June 1, 2013, and annually on June 1 thereafter, the department shall provide a report of its data and any related findings and recommendations to the Governor and to the Legislative Research Commission. The report also shall be made available on the department’s Web site.
  5. Nothing in this section shall be construed to require the disclosure of confidential information or data in violation of the federal Health Insurance Portability and Accountability Act of 1996.

History. Enact. Acts 2012, ch. 106, § 1, effective July 12, 2012.

Breast Cancer Research and Education

211.580. Breast cancer research and education trust fund.

  1. The breast cancer research and education trust fund is created as a separate revolving fund. The trust fund shall consist of funds collected from the income tax checkoff created under KRS 141.446 and any other proceeds from grants, contributions, appropriations, or other moneys made available for the purposes of the trust fund.
  2. Trust fund amounts not expended at the close of a fiscal year shall not lapse but shall be carried forward to the next fiscal year.
  3. Any interest earnings of the trust fund shall become a part of the trust fund and shall not lapse.
  4. Trust fund moneys shall be used to support breast cancer research, education, treatment, screening, and awareness in Kentucky. Funds shall be distributed as directed by the Breast Cancer Research and Education Trust Fund Board established by KRS 211.585 .
  5. Moneys transferred to the trust fund pursuant to KRS 141.446 are hereby appropriated for the purposes set forth in KRS 211.580 to 211.590 .

History. Enact. Acts 2005, ch. 27, § 2, effective June 20, 2005.

211.585. Breast Cancer Research and Education Trust Fund Board — Membership — Terms — Meetings.

  1. The Breast Cancer Research and Education Trust Fund Board is hereby created for the purpose of administering the trust fund created under KRS 211.580 . The board shall be composed of nine (9) members as follows:
    1. The director of the University of Louisville Brown Cancer Center or the director’s appointed designee;
    2. The director of the University of Kentucky Markey Cancer Center or the director’s appointed designee;
    3. The president of the Kentucky Breast Cancer Alliance or the president’s appointed designee;
    4. The director of the Kentucky Cancer Program East or the director’s appointed designee;
    5. The director of the Kentucky Cancer Program West or the director’s appointed designee;
    6. Two (2) citizens, one (1) of whom shall be a breast cancer survivor, to be appointed by the Governor;
    7. The secretary of the Cabinet for Health and Family Services, or the secretary’s designee; and
    8. The commissioner of the Department for Public Health or the commissioner’s designee.
  2. The board shall be attached to the Cabinet for Health and Family Services for administrative purposes.
  3. The secretary of the Cabinet for Health and Family Services shall convene the first meeting of the board within sixty (60) days of June 20, 2005.
  4. Board members shall serve without compensation, but may receive reimbursement for their actual and necessary expenses incurred in the performance of their duties.
  5. The term of each appointed member shall be four (4) years.
  6. A member whose term has expired may continue to serve until a successor is appointed and qualifies. A member who is appointed to an unexpired term shall serve the rest of the term and until a successor is appointed and qualifies. A member may serve two (2) consecutive four (4) year terms and shall not be reappointed for four (4) years after the completion of those terms.
  7. A majority of the full membership of the board shall constitute a quorum.
  8. At the first meeting, the board shall elect, by majority vote, a president who shall preside at all meetings and coordinate the functions and activities of the board. The president shall be elected or reelected each calendar year thereafter.
  9. The board shall meet at least two (2) times annually but may meet more frequently, as deemed necessary, subject to call by the president or by request of a majority of the board members.

History. Enact. Acts 2005, ch. 27, § 3, effective June 20, 2005.

211.590. Duties of Breast Cancer Research and Education Trust Fund Board.

The Breast Cancer Research and Education Trust Fund Board created by KRS 211.585 shall:

  1. Develop a written plan for the expenditure of trust funds made available under KRS 211.580 . The initial plan shall be completed on or before October 1, 2005, and shall be updated on an annual basis on or before October 1 of each year thereafter. The plan shall, at a minimum, include the following:
    1. A program summary; and
    2. A prioritized list of programs and research projects that the board will address with funding available through the competitive grant program established under subsection (2) of this section;
  2. Promulgate administrative regulations to establish a competitive grant program to provide funding to not-for-profit entities, educational institutions, and government agencies in Kentucky offering programs or services in the areas of breast cancer research, education, awareness, treatment, and screening.
    1. The grant program shall give preference to programs proposing to serve the medically underserved population.
    2. The grant program shall provide funding to projects and programs in accordance with the priorities established in the plan developed under subsection (1) of this section.
    3. The administrative regulations shall, at a minimum:
      1. Establish an application process and requirements;
      2. Set forth program and outcome measurement requirements;
      3. Establish an application review and award process; and
      4. Provide monitoring, oversight, and reporting requirements for funded programs;
  3. Promulgate administrative regulations necessary to carry out the provisions of KRS 211.580 to 211.590 ; and
  4. Provide information upon request that shall include but not be limited to:
    1. The plan developed under subsection (1) of this section for the expenditure of funds for the current and next fiscal year;
    2. A summary of the use and impact of prior year funds;
    3. A summary of the activities of the board during the prior fiscal year; and
    4. Any recommendations for future initiatives or action regarding breast cancer research, education, awareness, treatment, and screening.

HISTORY: Enact. Acts 2005, ch. 27, § 4, effective June 20, 2005; 2017 ch. 80, § 42, effective June 29, 2017.

211.595. Pediatric cancer research trust fund.

  1. The pediatric cancer research trust fund is hereby created as a separate trust fund. The fund shall be administered by the Cabinet for Health and Family Services.
  2. The fund shall receive amounts collected from the income tax checkoff created in KRS 141.445 , and any other proceeds from grants, contributions, appropriations, or other moneys made available for the purposes of this fund.
  3. Notwithstanding KRS 45.229 , trust fund amounts not expended at the close of a fiscal year shall not lapse but shall be carried forward to the next fiscal year.
  4. Any interest earned on moneys in the trust fund shall become a part of the trust fund and shall not lapse.
  5. Trust fund moneys shall be used to support pediatric cancer research and treatment for Kentucky patients. Funds shall be administered and distributed by the Pediatric Cancer Research Trust Fund Board established by KRS 211.596 for the purposes directed in this section and KRS 211.596 and 211.597 .
  6. Moneys transferred to the trust fund pursuant to KRS 141.445 are hereby appropriated for the purposes set forth in KRS 211.597 .

HISTORY: 2015 ch. 96, § 3, effective June 24, 2015; 2015 ch. 108, § 2, effective June 24, 2015.

Legislative Research Commission Notes.

(6/24/2015). This statute was created with identical text in 2015 Ky. Acts chs. 96 and 108, which were companion bills. These Acts have been codified together.

(6/24/2015). During codification, the Reviser of Statutes has corrected the name of the Pediatric Cancer Research Trust Fund Board in this statute from the way it appeared in 2015 Ky. Acts ch. 96, sec. 3 and 2015 Ky. Acts ch. 108, sec. 2, by inserting the inadvertently omitted word “Research” in subsection (5).

211.596. Pediatric Cancer Research Trust Fund Board — Membership — Terms — Meetings.

  1. The Pediatric Cancer Research Trust Fund Board is hereby created for the purpose of administering and distributing funds from the trust created under KRS 211.595 . The board shall be composed of eighteen (18) members to be appointed as follows:
    1. A specialist in pediatric oncology nominated by Norton Children’s Hospital to be appointed by the Governor;
    2. A specialist in pediatric oncology nominated by the University of Kentucky Children’s Hospital to be appointed by the Governor;
    3. A representative nominated by Kentucky Chapters of the Leukemia and Lymphoma Society to be appointed by the Governor;
    4. A representative nominated by Kentucky offices of the American Cancer Society to be appointed by the Governor;
    5. Three (3) citizens, one (1) of whom shall be a pediatric cancer survivor, or parent thereof, to be appointed by the Governor;
    6. The secretary of the Cabinet for Health and Family Services, or the secretary’s designee;
    7. The commissioner of the Department for Public Health, or the commissioner’s designee;
    8. A pediatric oncology social worker nominated by Norton Children’s Hospital to be appointed by the Governor;
    9. A pediatric oncology social worker nominated by the University of Kentucky Children’s Hospital to be appointed by the Governor;
    10. Two (2) school interventionists nominated by each pediatric oncology program to be appointed by the Governor;
    11. A regional coordinator nominated by the Kentucky Cancer Registry to be appointed by the Governor;
    12. A member of the University of Kentucky Dance Blue dance team or a successor entity to be appointed by the Governor;
    13. A member of the University of Louisville Raise RED dance team or a successor entity to be appointed by the Governor; and
    14. Two (2) citizens at large to be appointed by the Governor.
  2. The board shall be attached to the Cabinet for Health and Family Services for administrative purposes.
  3. Board members shall serve without compensation, but may receive reimbursement for their actual and necessary expenses incurred in the performance of their duties.
  4. The term of each appointed member shall be four (4) years and until a successor is appointed and qualified, except that initial appointments under subsection (1)(h) to (n) of this section shall be as follows:
    1. Each dance team member appointed under subsection (1)(l) or (m) of this section shall serve a one (1) year term;
    2. Two (2) of the members appointed under subsection (1)(h), (i), (j), (k), and (n) of this section shall serve two (2) year terms;
    3. Two (2) of the members appointed under subsection (1)(h), (i), (j), (k), and (n) of this section shall serve three (3) year terms; and
    4. Three (3) of the members appointed under subsection (1)(h), (i), (j), (k), and (n) of this section shall serve four (4) year terms.
  5. A majority of the full membership of the board shall constitute a quorum.
  6. The board shall elect, by majority vote, a president who shall preside at all meetings and coordinate the functions and activities of the board. The president shall be elected or reelected each biennium.
  7. The board shall meet at least two (2) times annually, but may meet more frequently, as deemed necessary, subject to call by the president or by request of a majority of the board members.

HISTORY: 2015 ch. 96, § 4, effective June 24, 2015; 2015 ch. 108, § 3, effective June 24, 2015; 2017 ch. 80, § 55, effective June 29, 2017; 2017 ch. 92, § 3, effective June 29, 2017; 2020 ch. 36, § 20, effective July 15, 2020.

Legislative Research Commission Notes.

(6/24/2015). This statute was created with identical text in 2015 Ky. Acts chs. 96 and 108, which were companion bills. These Acts have been codified together.

(6/24/2015). During codification, the Reviser of Statutes has corrected the name of the Pediatric Cancer Research Trust Fund Board in this statute from the way it appeared in 2015 Ky. Acts ch. 96, sec. 4 and 2015 Ky. Acts ch. 108, sec. 3, by inserting the inadvertently omitted word “Research” in subsection (1).

211.597. Duties of Pediatric Cancer Research Trust Fund Board.

The Pediatric Cancer Research Trust Fund Board created by KRS 211.596 shall:

  1. Develop a written plan for the expenditure of trust funds made available under KRS 211.595 . The initial plan shall be completed on or before October 1, 2015, and shall be updated on an annual basis on or before October 1 of each year thereafter. The plan shall, at a minimum, include the following:
    1. A summary of existing pediatric cancer research, awareness, treatment, and funding programs provided to children of Kentucky;
    2. A needs assessment for the pediatric cancer patients of the Commonwealth of Kentucky that identifies additional research funding needs by cancer type and geographic area, with support for why the identified programs are needed; and
    3. A prioritized list of programs and research projects that the board will address with funding available through the competitive grant program established under subsection (2) of this section;
    1. Promulgate administrative regulations to establish a competitive, open grant program to provide funding to not-for-profit entities, academic medical centers and government agencies offering research funding and treatment for pediatric cancer to Kentucky children impacted by the disease. (2) (a) Promulgate administrative regulations to establish a competitive, open grant program to provide funding to not-for-profit entities, academic medical centers and government agencies offering research funding and treatment for pediatric cancer to Kentucky children impacted by the disease.
    2. The grant program shall provide funding to research projects and programs in accordance with the priorities established in the plan developed under subsection (1) of this section.
    3. The administrative regulations shall, at a minimum:
      1. Establish an application process and requirements;
      2. Set forth program and outcome measurement requirements;
      3. Establish an application review and award process; and
      4. Provide monitoring, oversight, and reporting requirements for funded programs;
  2. Promulgate administrative regulations necessary to carry out the provisions of this section and KRS 211.596 ; and
  3. Provide to the Governor and the Legislative Research Commission an annual report by October 1 of each year. The report shall include:
    1. The plan developed under subsection (1) of this section for the expenditure of funds for the current and next fiscal year;
    2. A summary of the use and impact of prior year funds;
    3. A summary of the activities of the board during the prior fiscal year; and
    4. Any recommendations for future initiatives or action regarding pediatric cancer research funding.

HISTORY: 2015 ch. 96, § 5, effective June 24, 2015; 2015 ch. 108, § 4, effective June 24, 2015.

Legislative Research Commission Notes.

(6/24/2015). This statute was created with identical text in 2015 Ky. Acts chs. 96 and 108, which were companion bills. These Acts have been codified together.

(6/24/2015). During codification, the Reviser of Statutes has corrected the name of the Pediatric Cancer Research Trust Fund Board in this statute from the way it appeared in 2015 Ky. Acts ch. 96, sec. 5 and 2015 Ky. Acts ch. 108, sec. 4, by inserting the inadvertently omitted word “Trust” in the sentence preceding subsection (1).

(6/24/2015). During codification, the Reviser of Statutes has changed the way subsection (2) of this statute is subdivided from the way it appeared in 2015 Ky. Acts ch. 96, sec. 5 and 2015 Ky. Acts ch. 108, sec. 4. None of the text of that subsection was changed.

Rape Crisis Centers

211.600. Designation of regional rape crisis centers — Provision of services.

  1. The Cabinet for Health and Family Services shall designate one (1) nonprofit corporation in each area development district to serve as the regional rape crisis center. The designated agency shall serve as the regional planning authority for crisis and advocacy services for victims of sexual assault in the district in which the center is located.
  2. The rape crisis center shall retain the designation unless it has been rescinded by the cabinet based on an annual review of the center’s performance or the annual plan and budget submitted by the center to the cabinet for funding for the next fiscal year.
  3. A rape crisis center designated by the cabinet shall provide services that include, but are not limited to:
    1. Crisis counseling;
    2. Mental health and related support services;
    3. Advocacy;
    4. Consultation;
    5. Public education; and
    6. The provision of training programs for professionals.

History. Enact. Acts 2000, ch. 142, § 1, effective July 14, 2000; 2005, ch. 99, § 362, effective June 20, 2005.

211.602. Funding for establishment and operation of regional rape crisis centers.

  1. Notwithstanding the provisions of KRS 210.410 , the secretary of the Cabinet for Health and Family Services or any other state or local government entity is hereby authorized to make state grants and other fund allocations to assist nonprofit corporations in the establishment and operation of regional rape crisis centers.
  2. To be eligible for grants from any state government entity, a rape crisis center shall provide the services listed in KRS 211.600(3) and shall operate in a manner consistent with administrative regulations promulgated by the cabinet in accordance with KRS Chapter 13A.

History. Enact. Acts 2000, ch. 142, § 2, effective July 14, 2000; 2005, ch. 99, § 363, effective June 20, 2005.

211.603. Rape crisis center trust fund.

  1. There is created a trust fund to be known as the rape crisis center trust fund. The fund shall be administered by the Cabinet for Health and Family Services.
  2. The trust fund shall be funded with moneys collected through the designation of a taxpayer’s refund as provided by KRS 141.447 and any contributions, gifts, donations, or appropriations designated for the trust fund. Moneys in the fund shall be used to support the services listed in KRS 211.600(3). No moneys in the fund shall be used to support abortion services or abortion education.
  3. Notwithstanding KRS 45.229 , any moneys remaining in the fund at the close of the fiscal year shall not lapse but shall be carried forward into the succeeding fiscal year to be used for the purposes set forth in subsection (2) of this section.
  4. Any interest earned upon moneys in the rape crisis center trust fund shall become a part of the fund and shall not lapse.
  5. Moneys deposited in the fund are appropriated for the purposes set forth in this section and shall not be appropriated or transferred by the General Assembly for any other purposes.

HISTORY: 2015 ch. 108, § 6, effective June 24, 2015.

211.604. Rape crisis center board — Membership and duties.

  1. A rape crisis center designated by the cabinet shall establish a board consisting of at least fifteen (15) members. At least one (1) member shall represent each county located in the area development district served by the center.
  2. Each rape crisis center shall:
    1. Act as the administering authority for the regional rape crisis center;
    2. Assess the availability and quality of services to victims of sexual assault within the district;
    3. Facilitate working relationships with other criminal justice, mental health, and other agencies that will improve the delivery of services to victims of sexual assault;
    4. Submit to the cabinet annually a plan and budget for services to be provided in the next fiscal year;
    5. Recruit and promote local financial support for the center from private and public sources; and
    6. Oversee and be responsible for the management of the rape crisis center in accordance with the plan and budget adopted by the board and administrative regulations promulgated by the cabinet in accordance with KRS Chapter 13A.

History. Enact. Acts 2000, ch. 142, § 3, effective July 14, 2000.

211.608. Confidentiality of rape crisis center clients’ records.

All client records, requests for services, and reports that directly or indirectly identify a client or former client of a rape crisis center are confidential and shall not be disclosed by any person except as provided by law. The cabinet shall have access to client records, requests for services, and reports relating to any rape crisis center for the limited purpose of monitoring the center, and the cabinet shall promulgate an administrative regulation in accordance with KRS Chapter 13A that will set forth the process by which access to these documents will be gained, the nature of the monitoring that will take place, and the measures to be used to ensure confidentiality of the people identified in the records.

History. Enact. Acts 2000, ch. 142, § 4, effective July 14, 2000.

Kentucky Commission on Children and Youth

211.610. Definitions for KRS 211.610 to 211.650. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 106, Art. XIV, § 1) was repealed by Acts 1974, ch. 74, Art. VI, § 108, effective June 21, 1974.

211.620. Kentucky Commission on Children and Youth. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 106, Art. XIV, § 2; 1970, ch. 271, § 1; 1972, ch. 203, § 45) was repealed by Acts 1974, ch. 74, Art. VI, § 108, effective June 21, 1974.

211.630. Staff assistance — Advisory committees — Expenses of members. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 106, Art. XIV, § 3; 1970, ch. 271, § 2; 1972, ch. 203, § 46) was repealed by Acts 1974, ch. 74, Art. VI, § 108, effective June 21, 1974.

Osteoporosis Prevention and Education Program

211.635. Osteoporosis prevention and education program — Public education — Powers of department.

  1. The Department for Public Health shall establish, promote, and maintain a statewide multigenerational osteoporosis prevention and education program using available federal funds, state funds appropriated for that purpose, and other available funding. The program shall:
    1. Promote the public awareness of the causes of osteoporosis, options for prevention, the value of early detection, and treatment; and
    2. Increase health care provider awareness of national clinical guidelines related to the prevention, diagnosis, and treatment of osteoporosis.
  2. The public education component of the program created in subsection (1) of this section shall include but not be limited to:
    1. The cause and nature of osteoporosis;
    2. Risk factors;
    3. The role of oophorectomy and hysterectomy in the development of osteoporosis;
    4. The prevention of osteoporosis, including nutrition, physical exercise, and weight;
    5. Diagnostic procedures and appropriate indications for their use;
    6. The risks and benefits of hormone replacement therapy;
    7. Environment safety and injury prevention; and
    8. Availability of osteoporosis treatment services in the community.
  3. The department may consult, contract, or establish a cooperative relationship with local health departments, the University of Kentucky College of Agriculture Cooperative Extension Service, libraries, and community organizations to carry out the requirements of subsections (1) and (2) of this section.
  4. The department may use existing publications, the Department for Public Health Web site, and the Kentucky e-Health Network to promote health care provider awareness of clinical practice guidelines related to the prevention, diagnosis, and treatment of osteoporosis.

History. Enact. Acts 2006, ch. 96, § 1, effective July 12, 2006.

Services for Children and Youth

211.640. Duties of cabinet.

The duties of the Cabinet for Health and Family Services shall be to:

  1. Promote and develop effective programs of education, health, recreation, welfare, public safety, and correctional services for children and youth;
  2. Conduct continuing programs of public information to educate the public as to problems of children and youth;
  3. Assist and encourage governmental and private agencies to coordinate their efforts on behalf of children and youth;
  4. Cooperate with the federal government and with the governments of other states and cities in programs relating to children and youth;
  5. Conduct programs of research as to the needs of children and youth in order to facilitate more comprehensive and better-related social planning and action.

History. Enact. Acts 1962, ch. 106, Art. XIV, § 4a; 1974, ch. 74, Art. VI, § 69; 1998, ch. 426, § 306, effective July 15, 1998; 2005, ch. 99, § 364, effective June 20, 2005.

211.645. Definitions for KRS 211.647 and 216.2970.

As used in KRS 211.647 and 216.2970 , unless the context requires otherwise:

  1. “Cabinet” means the Cabinet for Health and Family Services;
  2. “Office” means the Office for Children with Special Health Care Needs;
  3. “Permanent childhood hearing loss” means a hearing deficit identified in infancy or childhood which prevents the acquisition of speech and language through normal channels;
  4. “Auditory screening report” means a written evaluation of an auditory screening as required under KRS 216.2970 ; and
  5. “Infant at high risk for late onset, progressive hearing loss, or both” means a child at birth who is at a higher risk than normal of becoming deaf or hard of hearing or having progressively worsening hearing due to one (1) or more of the following factors:
    1. Family history of a congenital hearing loss;
    2. Rubella or virus during pregnancy;
    3. Neonatal intensive care of more than five (5) days;
    4. Below-normal birth weight;
    5. Neonatal intensive care, regardless of the number of days, for any of the following conditions:
      1. Extracorporeal membrane oxygenation (ECMO);
      2. Assisted ventilation;
      3. Exposure to ototoxic medications, including but not limited to gentramycin and tobramycin, or loop diuretics, including but not limited to furosemide;
      4. Hyperbilirubinemia that requires an exchange transfusion;
      5. Syndromes associated with hearing loss and progressive or late onset hearing loss, including but not limited to neurofibromatosis, osteopetrosis, and Usher, Waardenburg, Alport, Pendred, and Jervell and Lange-Nielson Syndromes;
      6. Congenital ear, nose, or throat anomalies, including but not limited to those involving the pinna, ear canal, ear tags, ear pits, and temporal bone; or
      7. Culture-positive postnatal infections associated with sensorineural hearing loss, including but not limited to confirmed bacterial and viral meningitis;
    6. An auditory screening indicating a hearing loss; or
    7. Any other factor identified by the American Medical Association the American Academy of Pediatrics, or the American Academy of Otolaryngology as a cause of late onset or progressive hearing loss.

History. Enact. Acts 1986, ch. 489, § 2, effective July 15, 1986; 1990, ch. 369, § 37, effective July 13, 1990; 1992, ch. 144, § 12, effective July 14, 1992; 1994, ch. 405, § 75, effective July 15, 1994; 1998, ch. 426, § 307, effective July 15, 1998; 2000, ch. 308, § 9, effective July 14, 2000; 2005, ch. 99, § 365, effective June 20, 2005; 2009, ch. 102, § 1, effective June 25, 2009.

Legislative Research Commission Notes.

(8/23/2019). In 2018 Ky. Acts ch. 114, sec. 1, the General Assembly renamed the “Commission for Children with Special Health Care Needs” as the “Office for Children with Special Health Care Needs.” A reference to that “Commission” was changed to “Office” in subsection (2) of this statute. This name correction should have been addressed when 2018 Ky. Acts ch. 114 was codified, but it wasn't. This change is being made now under the authority of KRS 7.136(2).

(7/14/2018). Under the authority of KRS 7.136(2), one or more references to the “Commission for Children with Special Health Care Needs” in this statute have been changed in codification to the “Office for Children with Special Health Care Needs” to reflect the renaming of the commission by the General Assembly in 2018 Ky. Acts ch. 114.

211.647. Duty of office on receipt of hearing risk certificate — Standards for audiological assessment and diagnostic centers.

  1. The office, on receipt of an auditory screening report of an infant from a hospital or alternative birthing center in accordance with KRS 216.2970 shall review each auditory screening report that indicates a potential hearing loss. The office shall contact the parents to schedule follow-up evaluations or make a referral for evaluations within three (3) business days.
  2. The office shall secure information missing from birth certificates or hospital referral reports which is relevant to identifying infants with a hearing loss.
  3. The office shall establish standards for infant audiological assessment and diagnostic centers based on accepted national standards, including but not limited to the “Guidelines for the Audiologic Assessment of Children From Birth to 5 Years of Age” as published by the American Speech-Language-Hearing Association (ASHA) and the “Year 2007 Position Statement: Principles and Guidelines for Early Hearing Detection and Intervention Programs” as published by the Joint Committee on Infant Hearing (JCIH). The office may promulgate administrative regulations in accordance with KRS Chapter 13A to establish the standards for the centers.
  4. The office shall maintain a list of approved infant audiological assessment and diagnostic centers that meet the standards established by the office. An audiological assessment and diagnostic center included on the list shall meet the standards established by the office. An approved center may voluntarily choose not to be included on the list.
  5. An approved audiology assessment and diagnostic center shall agree to provide requested data to the office for each infant evaluated and on any newly identified children ages birth to three (3) years with a permanent childhood hearing loss within forty-eight (48) hours and make a referral to the Kentucky Early Intervention System point of entry in the service area of the child’s residence for services under KRS 200.664 . A center shall submit documentation to the office of a referral made to the Kentucky Early Intervention System. A referral received by the Kentucky Early Intervention System from a center shall be considered a referral from the office.
  6. If the audiological evaluation performed by the office contains evidence of a hearing loss, within forty-eight (48) hours the office shall:
    1. Contact the attending physician and parents and provide information to the parents in an accessible format as supplied by the Kentucky Commission on the Deaf and Hard of Hearing; and
    2. Make a referral to the Kentucky Early Intervention System point of entry in the service area of the child’s residence for services under KRS 200.664 .
  7. The office shall forward a report of an audiological evaluation that indicates a hearing loss, with no information that personally identifies the child, to:
    1. The Kentucky Commission on the Deaf and Hard of Hearing for census purposes; and
    2. The Kentucky Birth Surveillance Registry for information purposes.
  8. Cumulative demographic data of identified infants with a hearing loss shall be made available to agencies and organizations including but not limited to the Cabinet for Health and Family Services and the Early Childhood Advisory Council, requesting the information for planning purposes.

History. Enact. Acts 1986, ch. 489, § 3, effective July 15, 1986; 1992, ch. 144, § 13, effective July 14, 1992; 1998, ch. 426, § 308, effective July 15, 1998; 2000, ch. 308, § 10, effective July 14, 2000; 2005, ch. 99, § 366, effective June 20, 2005; 2009, ch. 102, § 2, effective June 25, 2009; 2013, ch. 57, § 9, effective June 25, 2013.

Legislative Research Commission Notes.

(8/23/2019). In 2018 Ky. Acts ch. 114, sec. 1, the General Assembly renamed the “Commission for Children with Special Health Care Needs” as the “Office for Children with Special Health Care Needs.” References to that “commission” were changed to “office” throughout this statute. These name corrections should have been addressed when 2018 Ky. Acts ch. 114 was codified, but they weren’t. These changes are being made now under the authority of KRS 7.136(2).

211.650. Acceptance and disposition of gifts and grants. [Repealed.]

Compiler’s Notes.

This section (Enact.Acts 1962, ch. 106, Art. XIV, § 4b) was repealed by Acts 1974, ch. 74, Art. VI, § 108, effective June 21, 1974.

Birth Defects Registry

211.651. Definitions for KRS 211.651 to 211.670.

As used in KRS 211.651 to 211.670 , unless the context otherwise requires:

  1. “Cabinet” means the Cabinet for Health and Family Services;
  2. “Secretary” means the secretary of the Cabinet for Health and Family Services;
  3. “Department” means the Department for Public Health; and
  4. “Designee” means a local health department, board for mental health or individuals with an intellectual disability, or other governmental or private agency designated by the Department for Public Health.

History. Enact. Acts 1992, ch. 62, § 1, effective July 14, 1992; 1998, ch. 426, § 309, effective July 15, 1998; 2005, ch. 99, § 367, effective June 20, 2005; 2012, ch. 146, § 100, effective July 12, 2012.

211.655. Legislative findings and statement of intent.

The General Assembly hereby finds and declares that congenital anomalies, stillbirths, and high risk conditions represent problems of significant health importance about which too little is known; that conditions of this nature lead to severe mental anguish on the part of parents and frequently to high medical care costs; and that a system to obtain more information about these conditions could result in development and implementation of preventive measures to decrease their incidence and prevalence in the future. Therefore, it is the intent of the General Assembly to:

  1. Provide information on the incidence, prevalence, and trends of birth defects, stillbirths, and high risk conditions;
  2. Provide information as to the possible causes of congenital anomalies, stillbirths, and high risk conditions; and
  3. Develop prevention strategies to reduce the incidence of congenital anomalies, stillbirths, and high risk conditions and to reduce secondary complications associated with high risk conditions.

History. Enact. Acts 1992, ch. 62, § 2, effective July 14, 1992; 1994, ch. 405, § 76, effective July 15, 1994.

211.660. Kentucky birth surveillance registry — Department’s authority to promulgate administrative regulations.

  1. The Department for Public Health shall establish and maintain a Kentucky birth surveillance registry that will provide a system for the collection of information concerning birth defects, stillbirths, and high-risk conditions. The system may cover all or part of the Commonwealth.
  2. In establishing the system, the department may review vital statistics records, and shall also consider expanding the current list of congenital anomalies and high-risk conditions as reported on birth certificates.
    1. The department may require general acute-care hospitals licensed under KRS Chapter 216B to maintain a list of all inpatients and voluntarily to maintain a list of all outpatients up to the age of five (5) years with a primary diagnosis of a congenital anomaly or high-risk condition as defined by the department upon the recommendation of the appointed advisory committee. Hospital participation regarding its outpatients shall be voluntary and subject to the discretion of each hospital. (3) (a) The department may require general acute-care hospitals licensed under KRS Chapter 216B to maintain a list of all inpatients and voluntarily to maintain a list of all outpatients up to the age of five (5) years with a primary diagnosis of a congenital anomaly or high-risk condition as defined by the department upon the recommendation of the appointed advisory committee. Hospital participation regarding its outpatients shall be voluntary and subject to the discretion of each hospital.
    2. The department may require medical laboratories licensed under KRS Chapter 333 to maintain medical records for all persons up to the age of five (5) years with a primary diagnosis of or a laboratory test result indicating congenital anomaly or high-risk condition as defined by the department upon the recommendation of the appointed advisory committee.
  3. Each licensed free-standing birthing center, general acute-care hospital licensed under KRS Chapter 216B, and medical laboratory licensed under KRS Chapter 333 shall grant, if required or otherwise participating voluntarily under the provisions of subsection (3) of this section, to any Kentucky Birth Surveillance Registry personnel or his or her designee, upon presentation of proper identification, access to the medical records of any patient meeting the criteria in subsection (3) of this section. If the department’s agent determines that copying of the medical records is necessary, associated costs shall be borne by the Department for Public Health at the rate pursuant to KRS 422.317 .
  4. No liability of any kind, character, damages, or other relief shall arise or be enforced against any licensed free-standing birthing center, general acute-care hospital, or medical laboratory by reason of having provided the information or material to the Kentucky Birth Surveillance Registry.
  5. The Department for Public Health may implement the provisions of KRS 211.651 to 211.670 through the promulgation of administrative regulations in accordance with the provisions of KRS Chapter 13A.

History. Enact. Acts 1992, ch. 62, § 3, effective July 14, 1992; 1994, ch. 405, § 77, effective July 15, 1994; 1998, ch. 327, § 1, effective July 15, 1998; 1998, ch. 426, § 310, effective July 15, 1998; 2002, ch. 287, § 1, effective July 15, 2002.

211.665. Advisory committee — Duties. [Repealed]

HISTORY: Enact. Acts 1992, ch. 62, § 4, effective July 14, 1992; 1994, ch. 405, § 78, effective July 15, 1994; 2002, ch. 287, § 2, effective July 15, 2002; repealed by 2018 ch. 112, § 19, effective July 14, 2018.

211.670. Confidentiality of registry reports and records — Use of information.

  1. All lists and medical records maintained by hospitals and medical laboratories pursuant to KRS 211.660 shall be confidential. All information collected and analyzed pursuant to KRS 211.660 shall be held confidential as to the identity of the individual patient. Staff of the cabinet, the department, or its designee may use the information to notify parents of available medical care and other services available for the child and family. Further disclosure shall be made only pursuant to the written consent of the child’s parent or legal guardian.
  2. Access to information assembled by the Kentucky birth surveillance registry shall be limited to the cabinet, the department, or its designee and to qualified persons or organizations engaged in demographic, epidemiological or other similar studies related to health and health care provision. A written agreement to maintain confidentiality shall be required if access is approved for persons other than representatives of the cabinet.
  3. The department shall maintain a record of all persons given access to the information in the Kentucky birth surveillance registry. The record shall include: the name of the person authorizing access; name, title, and organizational affiliation of person given access; dates of access; and the specific purpose for which information is to be used. This record of access shall be open to public inspection during normal operating hours of the department.
  4. Information assembled by the Kentucky birth surveillance registry may be disclosed in summary, statistical, or other form which does not identify particular individuals or individual sources of information.
  5. Any person who, in violation of a written agreement to maintain confidentiality, discloses any information provided under KRS 211.660 may be denied further access to confidential information maintained by the department.

History. Enact. Acts 1992, ch. 62, § 5, effective July 14, 1992; 1994, ch. 405, § 79, effective July 15, 1994; 2002, ch. 287, § 3, effective July 15, 2002; 2018 ch. 112, § 15, § 18, effective July 14, 2018; 2018 ch. 112, § 18, effective July 14, 2018.

Legislative Research Commission Notes.

(7/14/2018). This statute was amended identically by 2018 Ky. Acts ch. 112, secs. 15 and 18, which have been codified together.

Pregnancy and Perinatal Care

211.672. Definitions for KRS 211.672 to 211.678.

As used in KRS 211.672 to 211.678 , unless the context requires otherwise:

  1. “Cabinet” means the Cabinet for Health and Family Services;
  2. “Commissioner” means the commissioner of the Department for Public Health;
  3. “Department” means the Department for Public Health; and
  4. “Secretary” means the secretary of the Cabinet for Health and Family Services.

History. Enact. Acts 2013, ch. 118, § 12, effective June 25, 2013.

211.674. Perinatal Advisory Committee — Membership — Meetings — Report. [Repealed]

HISTORY: Enact. Acts 2013, ch. 118, § 13, effective June 25, 2013; repealed by 2018 ch. 112, § 19, effective July 14, 2018.

211.676. Reporting of neonatal abstinence syndrome cases.

All cases of neonatal abstinence syndrome (NAS) diagnosed among Kentucky resident births shall be reported to the Kentucky Department for Public Health by the facility where NAS is diagnosed. The report shall be made at the time of NAS diagnosis pursuant to guidance issued by the department.

History. Enact. Acts 2013, ch. 118, § 14, effective June 25, 2013.

211.678. Information reported under KRS 211.672 to 211.678 — Annual publication of data regarding reports made relating to neonatal abstinence syndrome.

  1. Except as otherwise provided in this section, all information reported or furnished to the Kentucky Department for Public Health pursuant to KRS 211.672 to 211.678 shall be privileged and confidential, shall not be considered a public record under KRS 61.870 to 61.884 , and shall not be discussed at any meeting as defined in KRS 61.805 , unless conducted in a closed session in accordance with KRS 61.815 .
  2. Information reported in compliance with KRS 211.672 to 211.678 shall not be disclosed by any person or entity, and shall not be subject to subpoena, court order, or discovery, or admissible as evidence in any civil or administrative proceeding in the Commonwealth.
  3. For purposes of this section, “information” shall be liberally construed to include reports; statements; interviews; memoranda; data, whether kept individually or aggregated; or summaries of same.
  4. Nothing within this section is intended to limit the Kentucky Department for Public Health’s internal use of such information to fulfill the express purposes of KRS 211.672 to 211.678 .
  5. The Kentucky Department for Public Health shall publish on at least an annual basis de-identified statistical data on the number of reports made under KRS 211.676 relating to a diagnosis of neonatal abstinence syndrome. The report may segregate the data into reporting blocks no smaller than the regional or county level.

History. Enact. Acts 2013, ch. 118, § 15, effective June 25, 2013; 2014, ch. 42, § 1, effective July 15, 2014.

Review of Child Fatalities

211.680. Legislative intent and findings for KRS 211.680 to 211.686 and KRS 72.029.

The Kentucky General Assembly declares that the purpose of KRS 211.680 to 211.686 and KRS 72.029 is to reduce the number of child and maternal fatalities. The General Assembly finds that establishing priorities and developing programs to prevent child and maternal fatalities requires the:

  1. Accurate determination of the cause and manner of death;
  2. Cooperation and communication among agencies responsible for the investigation of child and maternal fatalities; and
  3. Collection and analysis of data to:
    1. Identify trends, patterns, and risk factors; and
    2. Evaluate the effectiveness of prevention and intervention strategies.

HISTORY: Enact. Acts 1996, ch. 347, § 1, effective July 15, 1996; 2018 ch. 152, § 2, effective July 14, 2018.

211.682. Interpretation of KRS 211.680 to 211.686 and KRS 72.029 with respect to laws relating to coroners.

The provisions of KRS 211.680 to 211.686 and KRS 72.029 shall not be interpreted to limit, restrict, or otherwise affect any power, authority, duty, or responsibility imposed by any other provisions of law upon any coroner, but rather shall be interpreted to aid, assist, and complement the coroner in the performance of those statutory duties.

History. Enact. Acts 1996, ch. 347, § 2, effective July 15, 1996.

211.684. Authorization to establish state child and maternal fatality review team — Annual report on child and maternal fatalities.

  1. For the purposes of KRS Chapter 211:
    1. “Child fatality” means the death of a person under the age of eighteen (18) years;
    2. “Local child and maternal fatality response team” and “local team” means a community team composed of representatives of agencies, offices, and institutions that investigate child and maternal deaths, including but not limited to, coroners, social service workers, medical professionals, law enforcement officials, and Commonwealth’s and county attorneys; and
    3. “Maternal fatality” means the death of a woman within one (1) year of giving birth.
  2. The Department for Public Health may establish a state child and maternal fatality review team. The state team may include representatives of public health, social services, law enforcement, prosecution, coroners, health-care providers, and other agencies or professions deemed appropriate by the commissioner of the department.
  3. If a state team is created, the duties of the state team may include the following:
    1. Develop and distribute a model protocol for local child and maternal fatality response teams for the investigation of child and maternal fatalities;
    2. Facilitate the development of local child and maternal fatality response teams which may include, but is not limited to, providing joint training opportunities and, upon request, providing technical assistance;
    3. Review and approve local protocols prepared and submitted by local teams;
    4. Receive data and information on child and maternal fatalities and analyze the information to identify trends, patterns, and risk factors;
    5. Evaluate the effectiveness of prevention and intervention strategies adopted; and
    6. Recommend changes in state programs, legislation, administrative regulations, policies, budgets, and treatment and service standards which may facilitate strategies for prevention and reduce the number of child and maternal fatalities.
  4. The department shall prepare an annual report to be submitted no later than November 1 of each year to the Governor, the Child Welfare Oversight and Advisory Committee established in KRS 6.943 , the Chief Justice of the Kentucky Supreme Court, and to be made available to the citizens of the Commonwealth. The report shall include a statistical analysis of the incidence and causes of child and maternal fatalities in the Commonwealth during the past fiscal year and recommendations for action. The report shall not include any information which would identify specific child and maternal fatality cases.

History. Enact. Acts 1996, ch. 347, § 3, effective July 15, 1996; 1998, ch. 426, § 311, effective July 15, 1998; 2000, ch. 14, § 61, effective July 14, 2000; 2018 ch. 152, § 3, effective July 14, 2018; 2018 ch. 159, § 54, effective July 14, 2018.

Legislative Research Commission Notes.

(7/14/2018). This statute was amended by 2018 Ky. Acts chs. 152 and 159, which do not appear to be in conflict and have been codified together.

211.684. Authorization to establish state child and maternal fatality review team — Annual report on child and maternal fatalities.

  1. For the purposes of KRS Chapter 211:
    1. “Child fatality” means the death of a person under the age of eighteen (18) years;
    2. “Local child and maternal fatality response team” and “local team” means a community team composed of representatives of agencies, offices, and institutions that investigate child and maternal deaths, including but not limited to, coroners, social service workers, medical professionals, law enforcement officials, and Commonwealth’s and county attorneys; and
    3. “Maternal fatality” means the death of a woman within one (1) year of giving birth.
  2. The Department for Public Health may establish a state child and maternal fatality review team. The state team may include representatives of public health, social services, law enforcement, prosecution, coroners, health-care providers, and other agencies or professions deemed appropriate by the commissioner of the department.
  3. If a state team is created, the duties of the state team may include the following:
    1. Develop and distribute a model protocol for local child and maternal fatality response teams for the investigation of child and maternal fatalities;
    2. Facilitate the development of local child and maternal fatality response teams which may include, but is not limited to, providing joint training opportunities and, upon request, providing technical assistance;
    3. Review and approve local protocols prepared and submitted by local teams;
    4. Receive data and information on child and maternal fatalities and analyze the information to identify trends, patterns, and risk factors;
    5. Evaluate the effectiveness of prevention and intervention strategies adopted; and
    6. Recommend changes in state programs, legislation, administrative regulations, policies, budgets, and treatment and service standards which may facilitate strategies for prevention and reduce the number of child and maternal fatalities.
  4. The department shall prepare an annual report to be submitted no later than November 1 of each year to the Governor, the Child Welfare Oversight and Advisory Committee established in KRS 6.943 , the Interim Joint Committee on Health, Welfare, and Family Services, the Chief Justice of the Kentucky Supreme Court, and to be made available to the citizens of the Commonwealth. The report shall include a statistical analysis, that include the demographics of race, income, and geography, of the incidence and causes of child and maternal fatalities in the Commonwealth during the past fiscal year and recommendations for action. The report shall not include any information which would identify specific child and maternal fatality cases.

HISTORY: Enact. Acts 1996, ch. 347, § 3, effective July 15, 1996; 1998, ch. 426, § 311, effective July 15, 1998; 2000, ch. 14, § 61, effective July 14, 2000; 2018 ch. 152, § 3, effective July 14, 2018; 2018 ch. 159, § 54, effective July 14, 2018; 2021 ch. 121, § 1.

211.686. Authorization for coroners to establish local child and maternal fatality response teams — Confidentiality of team proceedings and records.

  1. A local child and maternal fatality response team may be established in every county or group of contiguous counties by the coroner or coroners with jurisdiction in the county or counties. The local coroner may authorize the creation of additional local teams within the coroner’s jurisdiction as needed.
  2. Membership of the local team may include representatives of the coroner, the local office of the Department for Community Based Services, law enforcement agencies with investigation responsibilities for child and maternal fatalities which occur within the jurisdiction of the local team, the Commonwealth’s and county attorneys, representatives of the medical profession, and other members whose participation the local team believes is important to carry out its purpose. Each local team member shall be appointed by the agency the member is representing and shall serve at the pleasure of the appointing authority.
  3. The purpose of the local child and maternal fatality response team shall be to:
    1. Allow each member to share specific and unique information with the local team;
    2. Generate overall investigative direction and emphasis through team coordination and sharing of specialized information;
    3. Create a body of information that will assist in the coroner’s effort to accurately identify the cause and reasons for death; and
    4. Facilitate the appropriate response by each member agency to the fatality, including but not limited to, intervention on behalf of others who may be adversely affected by the situation, implementation of health services necessary for protection of other citizens, further investigation by law enforcement, or legal action by Commonwealth’s or county attorneys.
  4. The local team may:
    1. Analyze information regarding local child and maternal fatalities to identify trends, patterns, and risk factors;
    2. Recommend to the state team, and any other entities deemed appropriate, changes in state or local programs, legislation, administrative regulations, policies, budgets, and treatment and service standards which may facilitate strategies for prevention and reduce the number of child and maternal fatalities; and
    3. Evaluate the effectiveness of local prevention and intervention strategies.
  5. The local team may establish a protocol for the investigation of child and maternal fatalities and may establish operating rules and procedures as it deems necessary to carry out the purposes of this section.
  6. The review of a child and maternal fatality by a local team may include information from reports generated or received by agencies, organizations, or individuals that are responsible for investigation, prosecution, or treatment in the case.
  7. The proceedings, records, opinions, and deliberations of the local team shall be privileged and shall not be subject to discovery, subpoena, or introduction into evidence in any civil action in any manner that would directly or indirectly identify specific persons or cases reviewed by the local team. Nothing in this subsection shall be construed to restrict or limit the right to discover or use in any civil action any evidence that is discoverable independent of the proceedings of the local team.

HISTORY: Enact. Acts 1996, ch. 347, § 4, effective July 15, 1996; 2000, ch. 14, § 43, effective July 14, 2000; 2018 ch. 152, § 4, effective July 14, 2018.

Home Visitation Services

211.689. Agencies receiving state funds for home visitation services.

  1. As used in this section and KRS 211.690 :
    1. “Home visitation” means a service delivery strategy with voluntary participation by eligible families that is carried out in the homes of at-risk parents during the prenatal period and until the child’s third birthday that provides face-to-face visits by nurses, social workers, and other early childhood professionals or trained and supervised paraprofessionals to improve maternal, infant, and child health and well-being, including:
      1. Reducing preterm births;
      2. Promoting positive parenting practices;
      3. Improving school readiness;
      4. Enhancing the social, emotional, and cognitive development of children;
      5. Reducing child abuse and neglect;
      6. Improving the health of the family; and
      7. Empowering families to be self-sufficient;
    2. “Home visitation program” means the voluntary statewide home visiting program established by KRS 211.690 or a program implementing a research-based model or a promising model that includes voluntary home visitation as a primary service delivery strategy that may supplement but shall not duplicate any existing program that provides assistance to parents of young children and that does not include:
      1. Programs with few or infrequent home visits;
      2. Home visits based on professional judgment or medical referrals that are infrequent and supplemental to a treatment plan;
      3. Programs in which home visiting is supplemental to other services, such as child protective services;
      4. In-home services delivered through provisions of an individualized family service plan or individualized education program under the federal Individuals with Disabilities Education Act, Part B or C; or
      5. Programs with goals related to direct intervention of domestic violence or substance abuse;
    3. “Research-based model” means a home visitation model based on a clear, consistent program model that:
      1. Is research-based, grounded in relevant empirically based knowledge, linked to program determined outcomes, has comprehensive home visitation standards that ensure high-quality service delivery and continuous quality improvement, and has demonstrated significant, sustained positive outcomes;
      2. Employs highly trained and competent professionals or paraprofessionals who are provided close supervision and continual professional development and training relevant to the specific model being delivered;
      3. Demonstrates strong linkages to other community-based services; and
      4. Is operated within an organization to ensure program fidelity and meets the outlined objectives and criteria for the model design; and
    4. “Promising model” means a home visitation model that has ongoing research, is modeled after programs with proven standards and outcomes, and has demonstrated its effectiveness or is actively incorporating model evaluation protocols designed to measure its efficacy.
  2. Beginning fiscal year 2014, an agency receiving state funds for the purpose of the delivery of home visitation services shall:
    1. Meet the definition of home visitation program in this section;
    2. Demonstrate to the Department for Public Health that it is part of a coordinated system of care for promoting health and well-being for at-risk parents during the prenatal period and until the child’s third birthday; and
    3. Report data to the statewide home visiting data system managed by the Department for Public Health in a uniform format prescribed by the department assuring common data elements, relevant home visiting data, and information to monitor program effectiveness, including program outcomes, numbers of families served, and other relevant data as determined by the department.

History. Enact. Acts 2013, ch. 118, § 16, effective June 25, 2013.

211.690. Health Access Nurturing Development Services for at-risk parents.

  1. There is established within the Cabinet for Health and Family Services the Health Access Nurturing Development Services (HANDS) program as a voluntary statewide home visitation program, for the purpose of providing assistance to at-risk parents during the prenatal period and until the child’s third birthday. The HANDS program recognizes that parents are the primary decision-makers for their children. The goals of the HANDS program are to:
    1. Facilitate safe and healthy delivery of babies;
    2. Provide information about optimal child growth and human development;
    3. Facilitate the safety and health of homes; and
    4. Encourage greater self-sufficiency of families.
  2. The cabinet shall administer the HANDS program in cooperation with the Cabinet for Health and Family Services and the local public health departments. The voluntary home visitation program may supplement, but shall not duplicate, any existing program that provides assistance to parents of young children.
  3. The HANDS program shall include an educational component on the recognition and prevention of pediatric abusive head trauma, as defined in KRS 620.020 .
  4. Participants in the HANDS program shall express informed consent to participate by written agreement on a form promulgated by the Cabinet for Health and Family Services.

History. Enact. Acts 2000, ch. 308, § 12, effective July 14, 2000; 2005, ch. 99, § 368, effective June 20, 2005; 2010, ch. 171, § 9, effective July 15, 2010.

Solid Waste Disposal

211.700. Definitions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 192, § 1) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

211.703. Policy of state. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 192, § 2) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

211.707. Solid waste to be disposed of only at site for which permit issued. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 192, § 7) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

211.710. Disposal of wastes by individual from own household. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 192, § 9) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

211.713. Permit required for construction or operation of solid waste disposal site or facility. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 192, § 5) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

211.715. Use of incinerator may not be sole ground for denial of permit. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 234, § 1) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

211.717. Permit required for continuation of disposal site or facility. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 192, § 6) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

211.720. Powers of department of health. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 192, § 3) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

211.723. Department to represent state under federal law. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 192, § 4) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

211.727. Rules and regulations, contents. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 192, § 8) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

211.730. Violations may be enjoined. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 192, § 10; 1970, ch. 236, § 1) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

Diabetes Research

211.735. Definitions for KRS 211.735 to 211.739. [Repealed]

History. Enact. Acts 2004, ch. 171, § 1, effective July 13, 2004; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 2004, ch. 171, § 1, effective July 13, 2004) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

211.736. Creation of Kentucky Diabetes Research Board. [Repealed]

History. Enact. Acts 2004, ch. 171, § 2, effective July 13, 2004; 2005, ch. 99, § 369, effective June 20, 2005; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 2004, ch. 171, § 2, effective July 13, 2004) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

211.737. Creation of Kentucky diabetes research trust fund. [Repealed]

History. Enact. Acts 2004, ch. 171, § 3, effective July 13, 2004; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 2004, ch. 171, § 3, effective July 13, 2004) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

211.738. Application and review of proposed research projects. [Repealed]

History. Enact. Acts 2004, ch. 171, § 4, effective July 13, 2004; 2005, ch. 99, § 370, effective June 20, 2005; 2007, ch. 72, § 1, effective June 26, 2007; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 2004, ch. 171, § 4, effective July 13, 2004) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

211.739. Granting of research contracts — Reports — Published research documents — Acknowledgment of funding source. [Repealed]

History. Enact. Acts 2004, ch. 171, § 5, effective July 13, 2004; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 2004, ch. 171, § 5, effective July 13, 2004) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

Hemophilia

211.740. Hemophilia advisory committee. [Renumbered.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 63, § 2; 1984, ch. 111, § 107, effective July 13, 1984) was repealed, reenacted and amended as KRS 200.560 by Acts 1986, ch. 234, § 7, effective July 15, 1986.

211.750. Hemophilia treatment program. [Renumbered.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 63, § 3) was repealed, reenacted and amended as KRS 200.550 by Acts 1986, ch. 234, § 6, effective July 15, 1986.

211.751. Goals, benchmarks, and plans to reduce incidence of diabetes, improve care, and control complications.

The Department for Medicaid Services, the Department for Public Health, the Office of Health Data and Analytics, and the Personnel Cabinet shall collaborate to identify goals and benchmarks while also developing individual entity plans to reduce the incidence of diabetes in Kentucky, improve diabetes care, and control complications associated with diabetes.

History. Enact. Acts 2011, ch. 83, § 1, effective June 8, 2011; 2019 ch. 90, § 7, effective June 27, 2019.

211.752. Annual reports to Legislative Research Commission.

The Department for Medicaid Services, the Department for Public Health, the Office of Health Data and Analytics, and the Personnel Cabinet shall submit a report to the Legislative Research Commission by January 10 of each odd-numbered year on the following:

  1. The financial impact and reach diabetes of all types is having on the entity, the Commonwealth, and localities. Items included in this assessment shall include the number of lives with diabetes impacted or covered by the entity, the number of lives with diabetes and family members impacted by prevention and diabetes control programs implemented by the entity, the financial toll or impact diabetes and its complications places on the program, and the financial toll or impact diabetes and its complications places on the program in comparison to other chronic diseases and conditions;
  2. An assessment of the benefits of implemented programs and activities aimed at controlling diabetes and preventing the disease. This assessment shall also document the amount and source for any funding directed to the agency or entity from the Kentucky General Assembly for programs and activities aimed at reaching those with diabetes;
  3. A description of the level of coordination existing between the entities on activities, programmatic activities, and messaging on managing, treating, or preventing all forms of diabetes and its complications;
  4. The development or revision of detailed action plans for battling diabetes with a range of actionable items for consideration by the General Assembly. The plans shall identify proposed action steps to reduce the impact of diabetes, prediabetes, and related diabetes complications. The plan shall also identify expected outcomes of the action steps proposed in the following biennium while also establishing benchmarks for controlling and preventing relevant forms of diabetes; and
  5. The development of a detailed budget blueprint identifying needs, costs, and resources required to implement the plan identified in subsection (4) of this section. This blueprint shall include a budget range for all options presented in the plan identified in subsection (4) of this section for consideration by the General Assembly.

History. Enact. Acts 2011, ch. 83, § 2, effective June 8, 2011; 2019 ch. 90, § 8, effective June 27, 2019.

211.753. Use of agencies’ existing diabetes information, data, initiatives, and programs to implement KRS 211.751 and 211.752.

The requirements of KRS 211.751 and 211.752 shall be limited to the diabetes information, data, initiatives, and programs within each agency prior to June 8, 2011, unless there is unobligated funding for diabetes in each agency that may be used for new research, data collection, reporting, or other requirements of KRS 211.751 and 211.752 .

History. Enact. Acts 2011, ch. 83, § 3, effective June 8, 2011.

Breast-feeding

211.755. Breast-feeding permitted — Municipal ordinances not to prohibit or restrict — Interference prohibited.

  1. Notwithstanding any other provision of the law, a mother may breast-feed her baby or express breast milk in any location, public or private, where the mother is otherwise authorized to be. Breast-feeding a child or expressing breast milk as part of breast-feeding shall not be considered an act of public indecency and shall not be considered indecent exposure, sexual conduct, lewd touching, or obscenity.
  2. A municipality may not enact an ordinance that prohibits or restricts a mother breast-feeding a child or expressing breast milk in a public or private location where the mother and child are otherwise authorized to be. In a municipal ordinance, indecent exposure, sexual conduct, lewd touching, obscenity, and similar terms do not include the act of a mother breast-feeding a child in a public or private location where the mother and child are otherwise authorized to be.
  3. No person shall interfere with a mother breast-feeding her child in any location, public or private, where the mother is otherwise authorized to be.

History. Enact. Acts 2006, ch. 80, § 1, effective July 12, 2006.

Tattooing

211.760. Tattooing and body piercing of humans by nonmedical personnel for remuneration — Registration — Administrative regulations — Compliance checks — Hearings.

  1. As used in this section:
    1. “Body piercing” means the act of penetrating the skin or body part of a human being to make a hole, mark, or scar;
    2. “Facility” means the place of business where tattooing, body piercing, or both are conducted; and
    3. “Tattooing” means the act of producing scars on a human being or the act of inserting pigment under the surface of the skin of a human being, by pricking with a needle or otherwise, to produce indelible marks or figures visible through the skin, including the application of permanent makeup.
  2. No person shall engage in, offer to engage in, or carry on any business of tattooing, body piercing, or both of humans by nonmedical personnel for remuneration within the Commonwealth of Kentucky without first registering with the local health department in the district or county in which the person is to perform tattooing, body piercing, or both. Registrations shall be valid for one (1) year. Applicants for registration shall pay a fee that shall not exceed administrative costs of the program to the cabinet, to the local or district health department.
  3. The Cabinet for Health and Family Services shall promulgate administrative regulations relating to:
    1. Health and cleanliness of places of business in which tattooing, body piercing, or both are conducted;
    2. Sterilization of tattooing and body piercing apparatus;
    3. Procedures to prevent the spread of disease or infection during or relating to tattooing and body piercing procedures;
    4. Procedures to prevent any tattooing or body piercing of minors without the written notarized consent of a custodial parent or legal guardian; and
    5. Such other administrative regulations as may be necessary to protect public health or properly administer the program requirements of this section, including application and licensing fees.
  4. Representatives of the cabinet or local or district health departments may visit a facility at any time during business hours to ensure compliance with the requirements of this section. Representatives of local or district health departments shall visit each registered facility in their county or district not less than twice each year.
  5. Any administrative hearing conducted under this section shall be conducted in accordance with KRS Chapter 13B.

History. Enact. Acts 1992, ch. 385, § 1, effective July 14, 1992; 1996, ch. 318, § 108, effective July 15, 1996; 1998, ch. 426, § 312, effective July 15, 1998; 2002, ch. 153, § 1, effective July 15, 2002; 2005, ch. 99, § 371, effective June 20, 2005; 2018 ch. 136, § 9, effective July 1, 2019.

Kidney Disease

211.810. Kentucky state kidney disease institute. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 202, § 1) was repealed by Acts 1974, ch. 74, Art. VI, § 108, effective June 21, 1974.

211.820. Functions, powers, and duties of Cabinet for Health and Family Services.

  1. The Cabinet for Health and Family Services shall have the following functions, powers, and duties:
    1. To conduct a survey of all of the existing facilities within the state having to do with the diagnosis, evaluation, and treatment of patients with kidney disease and to prepare and submit its findings and a specific program of action;
    2. To evaluate the need for the creation of local or regional facilities and for the establishing of a major kidney research center;
    3. To develop and administer scientific investigations into the cause, prevention, methods of treatment, and cure of renal disease, including research into transplantation of kidneys;
    4. To develop techniques for an effective method of mass testing for the detection of kidney diseases and urinary tract infections;
    5. To develop more efficient methods of medical care for kidney disease and to develop more effective and economical kidney dialysis equipment;
    6. To survey and evaluate the need for a program of professional education and training for medical students, physicians, and nurses in the care and treatment of kidney diseases;
    7. To report to the Governor and to a committee of the legislature annually on or before February 1 its findings, a progress report, its activities and the state’s total needs in this area; and
    8. To enter into such contracts and agreements with individuals, colleges, universities, associations, corporations, municipalities, and other units of government as may be deemed necessary and advisable to carry out the general intent and purposes of this section. Such contracts may provide for payment by the state, within the limit of funds available, for materials, equipment, or services.
  2. The secretary may adopt rules and regulations necessary to effect the purposes of this section.

History. Enact. Acts 1970, ch. 202, § 2; 1974, ch. 74, Art. VI, § 107(21), (25); 1978, ch. 384, § 63, effective June 17, 1978; 1998, ch. 426, § 313, effective July 15, 1998; 2005, ch. 99, § 372, effective June 20, 2005.

211.830. Advisory council. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 202, § 3) was repealed by Acts 1974, ch. 74, Art. VI, § 108, effective June 21, 1974.

Radiation Control

211.840. Short title.

KRS 211.842 to 211.852 may be cited as the “Kentucky Radiation Control Act of 1978”.

History. Enact. Acts 1978, ch. 279, § 1, effective June 17, 1978.

211.842. Duties of Cabinet for Health and Family Services — Right of entry upon property.

  1. The Cabinet for Health and Family Services is the radiation control agency of the State of Kentucky.
  2. The Cabinet for Health and Family Services shall issue licenses pertaining to radioactive materials and require registration of other sources of ionizing radiation.
  3. The Cabinet for Health and Family Services shall develop and conduct programs for evaluation and control of hazards associated with the use of sources of ionizing, nonionizing, and electronic product radiation.
  4. The cabinet or its duly authorized representative may enter at a reasonable time upon the property of a licensee, registrant, or other person where sources of ionizing, nonionizing, or electronic product radiation are reasonably believed to be located for the purpose of determining whether or not such licensee, registrant, or other person is in compliance with or in violation of the provisions of KRS 211.842 to 211.852 and administrative regulations promulgated hereunder, and the owner, occupant, or person in charge of the property shall permit entry and inspection; provided, that entry into areas under the jurisdiction of an agency of the federal government or its duly designated representative shall be only upon permission of the agency or its representative.

History. Enact. Acts 1978, ch. 279, § 2, effective June 17, 1978; 1992, ch. 328, § 5, effective July 14, 1992; 1998, ch. 426, § 314, effective July 15, 1998; 2005, ch. 99, § 373, effective June 20, 2005.

Research References and Practice Aids

Northern Kentucky Law Review.

Reynolds, Who’s Going to Regulate NORM?, 22 N. Ky. L. Rev. 5 (1995).

211.843. Licensees of radioactive materials to provide sureties — Revocation of license.

The secretary for health and family services may, by administrative regulation, require licensees of radioactive materials to provide an adequate surety or other financial arrangement, in such amount as the secretary deems reasonably appropriate to cover potential cleanup costs in the event of abandonment, insolvency, or other inability of the licensee to meet the requirements of the secretary regarding a radioactive material accident or other public health hazard created by the presence of radioactive material at a site occupied by the licensee or formerly under its possession, ownership, or control. Acceptable sureties include bonds issued by fidelity or surety companies authorized or eligible to do business in Kentucky, cash deposits, certificates of deposit, deposits of government securities, irrevocable letters or lines of credit, trust funds, escrow accounts or such other types of arrangements, but shall not include any arrangement which essentially constitutes self-insurance. The secretary shall be the obligee of the surety and the proceeds of the surety shall be used by the secretary for defraying the cost of cleaning up and decontaminating the area of property involved. Failure to comply with any regulation promulgated to carry out this section by any licensee shall result in automatic revocation of such license by operation by law.

History. Enact. Acts 1988, ch. 277, § 2, effective July 15, 1988; 1998, ch. 426, § 315, effective July 15, 1998; 2005, ch. 99, § 374, effective June 20, 2005.

211.844. Regulatory authority of cabinet.

  1. The Cabinet for Health and Family Services shall provide by administrative regulation for the registration and licensing of the possession or use of any source of ionizing or electronic product radiation and the handling and disposal of radioactive waste. The cabinet may prescribe specific conditions or means for the disposal and volume and source reduction of radioactive materials including radioactive waste. These administrative regulations shall include but need not be limited to specification of the form of applications for registration and licenses, the qualifications therefor, grounds for revocation, appeal pursuant to KRS Chapter 13B, and other matters necessary to carry out the intent of KRS 211.842 to 211.852 and to protect the public from unnecessary radiation exposure.
  2. All administrative regulations adopted prior to June 17, 1978, by the Cabinet for Human Resources and on file with the Legislative Research Commission shall continue in full force and effect unless subsequently amended or repealed pursuant to the provisions of KRS 211.842 to 211.852 .

History. Enact. Acts 1978, ch. 279, § 3, effective June 17, 1978; 1988, ch. 277, § 3, effective July 15, 1988; 1996, ch. 318, § 110, effective July 15, 1996; 1998, ch. 426, § 316, effective July 15, 1998; 2005, ch. 99, § 375, effective June 20, 2005.

Research References and Practice Aids

Northern Kentucky Law Review.

Reynolds, Who’s Going to Regulate NORM?, 22 N. Ky. L. Rev. 5 (1995).

211.846. Monitoring radioactive waste material sites.

The Cabinet for Health and Family Services shall monitor radioactive waste material sites in Kentucky for the protection of the public health, safety, and welfare. The Finance and Administration Cabinet and the Cabinet for Health and Family Services shall cooperate and coordinate their activities in the leasing, regulation, monitoring, and control of radioactive waste material burial sites.

History. Enact. Acts 1978, ch. 279, § 4, effective June 17, 1978; 1998, ch. 426, § 317, effective July 15, 1998; 2005, ch. 99, § 376, effective June 20, 2005.

211.848. Fees and charges for registration and licensing — Disposition.

  1. The secretary of the Cabinet for Health and Family Services shall fix a reasonable schedule of fees and charges, by regulation, to be paid by applicants for registration of radiation-producing machines and radioactive material licenses and for renewal of the certificates and licenses. The secretary shall also prescribe, by regulation, a reasonable schedule of fees to be paid by registrants and licensees for inspections and environmental surveillance activities conducted by the cabinet.
  2. All fees and charges collected by the Cabinet for Health and Family Services under the provisions of KRS 211.842 to 211.852 or the administrative regulations adopted pursuant to KRS 211.844 shall be paid into the State Treasury and credited to a trust and agency fund to be used by the Cabinet for Health and Family Services in carrying out the provisions of KRS 211.842 to 211.852 .

History. Enact. Acts 1978, ch. 279, § 5, effective June 17, 1978; 1990, ch. 458, § 16, effective July 13, 1990; 1998, ch. 426, § 318, effective July 15, 1998; 2005, ch. 99, § 377, effective June 20, 2005.

211.850. Injunction against violations.

Whenever, in the opinion of the Attorney General or the secretary of the Cabinet for Health and Family Services, the person is violating or is about to violate any of the provisions of KRS 211.842 to 211.852 , or any regulation lawfully promulgated pursuant thereto, the Attorney General or the secretary may apply to the appropriate court for an order enjoining the person from engaging or continuing to engage in the violative act, and upon a showing that such person has engaged or is about to engage in such activity, a restraining order or permanent or temporary injunction, or any other appropriate order shall be granted.

History. Enact. Acts 1978, ch. 279, § 6, effective June 17, 1978; 1998, ch. 426, § 319, effective July 15, 1998; 2005, ch. 99, § 378, effective June 20, 2005.

211.852. Prerequisites to approval of nuclear waste disposal facility — Procedure — Exception.

  1. The location of a nuclear waste disposal facility in the Commonwealth of Kentucky shall require prior approval by a majority of the members of the Kentucky House of Representatives, a majority of the members of the Kentucky Senate, and the approval of the Governor of Kentucky.
  2. Before an application to locate a nuclear waste disposal facility in Kentucky can be submitted for approval to the Kentucky General Assembly, it must first receive the approval of the secretary of the Cabinet for Health and Family Services and the secretary of the Energy and Environment Cabinet. It shall be the responsibility of the Cabinet for Health and Family Services and the Energy and Environment Cabinet to ensure that a comprehensive environmental impact statement is submitted and that public hearings are held in the county in which it is proposed to locate a nuclear waste disposal facility.
  3. This section shall not apply to nuclear waste disposal facilities in existence prior to June 17, 1978.

History. Enact. Acts 1978, ch. 279, § 8, effective June 17, 1978; 1998, ch. 426, § 320, effective July 15, 1998; 2005, ch. 99, § 379, effective June 20, 2005; 2010, ch. 24, § 313, effective July 15, 2010.

Opinions of Attorney General.

If Kentucky chooses not to join a regional compact for low level nuclear waste and instead decides to build a disposal facility for Kentucky generated wastes, Kentucky cannot exclude out-of-state generated wastes. OAG 83-153 .

If Kentucky joined one of the proposed regional interstate compacts for nuclear waste management, most if not all of the provisions in KRS Chapter 211 pertaining to opening and closing nuclear waste disposal facilities would be superceded by the terms of such a compact to the extent the existing statutes conflict with the compact. If Kentucky does not join a compact, it may not ban importation of waste for disposal at disposal facilities operating in Kentucky. OAG 83-153 .

Kentucky cannot create a compact, with Kentucky the only member, and thereby gain the benefit of the federal Low Level Waste Policy Act allowing compact members to exclude waste generated by noncompact states. OAG 83-153 .

211.854. Monitoring radiation in discharges into rivers — Report of violations to United States attorney.

  1. The Cabinet for Health and Family Services may monitor the radiation in discharges into rivers along the Kentucky border from all nuclear power plants located on either side of such rivers for the protection of the health, safety, and welfare of the citizens of the Commonwealth. Monitoring may be conducted on a continuous basis.
  2. If there is evidence that the effluent standards applicable to any nuclear power facility are not being properly and expeditiously enforced, the Attorney General shall report such violations to the United States attorney for appropriate action or bring an action of mandamus against the appropriate enforcement agency.

History. Enact. Acts 1980, ch. 139, § 1, effective July 15, 1980; 1998, ch. 426, § 321, effective July 15, 1998; 2005, ch. 99, § 380, effective June 20, 2005.

211.855. Cabinet’s role as radon control agency for Commonwealth. [Renumbered.]

Compiler’s Notes.

This section was renumbered as as KRS 211.9135 effective June 8, 2011.

211.856. Certification of persons engaged in radon analysis, mitigation, or testing — Fees. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1992, ch. 328, § 2; 1998, ch. 426, § 323; 2005, ch. 99, § 382) was repealed by Acts 2011, ch. 74, § 21, effective June 8, 2011.

211.857. Injunctive relief against violators. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1992, ch. 328, § 3; 1998, ch. 426, § 324; 2005, ch. 99, § 383) was repealed by Acts 2011, ch. 74, § 21, effective June 8, 2011.

211.858. Penalty for violations of KRS 211.855 to 211.858. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1992, ch. 328, § 4; 1998, ch. 426, § 325; 2005, ch. 99, § 384) was repealed by Acts 2011, ch. 74, § 21, effective June 8, 2011.

Central Midwest Interstate Low-Level Radioactive Waste Compact

211.859. Central Midwest Interstate Low-Level Radioactive Waste Compact.

The Central Midwest Interstate Low-Level Radioactive Waste Compact is approved in the form as follows:

History. Enact. Acts 1986, ch. 18, § 2, effective July 15, 1986; 1994, ch. 349, § 2, effective July 15, 1994.

ARTICLE I. POLICY AND PURPOSE.

There is created the Central Midwest Interstate Low-Level Radioactive Waste Compact.

The states party to this compact recognize that the Congress of the United States, by enacting the Low-Level Radioactive Waste Policy Act (Title 42 U.S.C. sec. 2021 ), has provided for and encouraged the development of low-level radioactive waste compacts as a tool for managing such waste. The party states also recognize that the management of low-level radioactive waste is handled most efficiently on a regional basis; and, that the safe and efficient management of low-level radioactive waste generated within the region requires that sufficient capacity to manage such waste be properly provided.

  1. It is the policy of the party states to enter into a regional low-level radioactive waste management compact for the purpose of:
  1. Providing the instrument and framework for a cooperative effort;
  2. Providing sufficient facilities for the proper management of low-level radioactive waste generated in the region;
  3. Protecting the health and safety of the citizens of the region;
  4. Limiting the number of facilities required to manage low-level radioactive waste generated in the region effectively and efficiently;
  5. Promoting the volume and source reduction of low-level radioactive waste generated in the region;
  6. Distributing the costs, benefits and obligations of successful low-level radioactive waste management equitably among the party states and among generators and other persons who use regional facilities to manage their waste;
  7. Ensuring the ecological and economical management of low-level radioactive waste, including the prohibition of shallow-land burial of waste; and
  8. Promoting the use of above-ground facilities and other disposal technologies providing greater and safer confinement of low-level radioactive waste than shallow-land burial facilities.

    (b) Implicit in the congressional consent to this compact is the expectation by the Congress and the party states that the appropriate federal agencies will actively assist the compact commission and the individual party states to this compact by:

    (1) Expeditious enforcement of federal rules, regulations and laws;

    (2) Imposition of sanctions against those found to be in violation of federal rules, regulations and laws; and

    (3) Timely inspection of their licensees to determine their compliance with these rules, regulations and laws.

ARTICLE II. DEFINITIONS.

As used in this compact, unless the context clearly requires a different construction:

  1. “Commission” means the Central Midwest Interstate Low-Level Radioactive Waste Commission.
  2. “Decommissioning” means the measures taken at the end of a facility’s operating life to assure the continued protection of the public from any residual radioactivity or other potential hazards present at a facility.
  3. “Disposal” means the isolation of waste from the biosphere in a permanent facility designed for that purpose.
  4. “Eligible state” means either the State of Illinois or the Commonwealth of Kentucky.
  5. “Extended care” means the continued observation of a facility after closure for the purpose of detecting a need for maintenance, ensuring environmental safety, and determining compliance with applicable licensure and regulatory requirements and includes undertaking any action or clean-up necessary to protect public health and the environment from radioactive releases from a regional facility.
  6. “Facility” means a parcel of land or site, together with the structures, equipment and improvements on or appurtenant to the land or site, which is used or is being developed for the treatment, storage or disposal of low-level radioactive waste.
  7. “Generator” means a person who produces or possesses low-level radioactive waste in the course of or incident to manufacturing, power generation, processing, medical diagnosis and treatment, research, or other industrial or commercial activity and who, to the extent required by law, is licensed by the U.S. Nuclear Regulatory Commission or a party state, to produce or possess such waste.
  8. “Host state” means any party state that is designated by the commission to host a regional facility, provided that a party state with a total volume of waste recorded on low-level radioactive waste manifests for any year that is less than ten percent of the total volume recorded on such manifests for the region during the same year shall not be designated a host state.
  9. “Institutional control” means those activities carried out by the host state to physically control access to the disposal site following transfer of control of the disposal site from the disposal site operator to the state or federal government. These activities must include, but need not be limited to environmental monitoring, periodic surveillance, minor custodial care, and other necessary activities at the site as determined by the host state, and administration of funds to cover the costs for these activities. The period of institutional control will be determined by the host state, but institutional control may not be relied upon for more than 100 years following transfer of control of the disposal site to the state or federal government.
  10. “Long-term liability” means the financial obligation to compensate any person for medical and other expenses incurred from damages to human health, personal injuries suffered from damages to human health and damages or losses to real or personal property, and to provide for the costs for accomplishing any necessary corrective action or clean-up on real or personal property caused by radioactive releases from a regional facility.
  11. “Low-level radioactive waste” or “waste” means radioactive waste not classified as (1) high-level radioactive waste, (2) transuranic waste, (3) spent nuclear fuel, or (4) by-product material as defined in section 11e(2) of the Atomic Energy Act of 1954. This definition shall apply notwithstanding any declaration by the federal government, a state, or any regulatory agency that any radioactive material is exempt from any regulatory control.
  12. “Management plan” means the plan adopted by the commission for the storage, transportation, treatment and disposal of waste within the region.
  13. “Manifest” means a shipping document identifying the generator of waste, the volume of waste, the quantity of radionuclides in the shipment, and such other information as may be required by the appropriate regulatory agency.
  14. “Party state” means any eligible state which enacts the compact into law and pays the membership fee.
  15. “Person” means any individual, corporation, business enterprise or other legal entity, either public or private, and any legal successor, representative, agent or agency of that individual, corporation, business enterprise, or legal entity.
  16. “Region” means the geographical area of the party states.
  17. “Regional facility” means any facility as defined in Article II(f) that is (1) located within the region, and (2) established by a party state pursuant to designation of that state as a host state by the commission.
  18. “Shallow-land burial” means a land disposal facility in which radioactive waste is disposed of in or within the upper thirty meters of the earth’s surface; however, this definition shall not include an enclosed, engineered, strongly structurally enforced and solidified bunker that extends below the earth’s surface.
  19. “Site” means the geographic location of a facility.
  20. “Source reduction” means those administrative practices that reduce the radionuclide levels in low-level radioactive waste or that prevent the generation of additional low-level radioactive waste.
  21. “State” means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands or any other territorial possession of the United States.
  22. “Storage” means the temporary holding of waste for treatment or disposal.
  23. “Treatment” means any method, technique or process, including storage for radioactive decay, designed to change the physical, chemical or biological characteristics or composition of any waste in order to render the waste safer for transport or management, amenable to recovery, convertible to another usable material or reduced in volume.
  24. “Volume reduction” means those methods including, but not limited to biological, chemical, mechanical and thermal methods used to reduce the amount of space that waste materials occupy and to put them into a form suitable for storage or disposal.
  25. “Waste management” means the source and volume reduction, storage, transportation, treatment or disposal of waste.

ARTICLE III. THE COMMISSION.

  1. There is created the Central Midwest Interstate Low-Level Radioactive Waste Commission. Upon the eligible states becoming party states, the commission shall consist of two voting commissioners from each state eligible to be designated a host state under Article VI(b), one voting commissioner from any other party state, and for each regional facility, one non-voting commissioner who is an elected official of local government and a resident of the county where that regional facility is located. The governor of each party state shall notify the commission in writing of its commissioners and any alternates.
  2. Each voting commissioner is entitled to one vote. No action of the commission is binding unless a majority of the voting membership casts its vote in the affirmative. In addition, no agreement by the commission under Article III(i)(1), Article III(i)(2), or Article III(i)(3) is valid unless all voting commissioners from the party state in which the facility where the waste would be sent is located cast their votes in the affirmative.
  3. The commission shall elect annually from among its members a chairperson. The commission shall adopt and publish, in convenient form, bylaws and policies that are not inconsistent with this compact, including procedures that conform with the provisions of the Federal Administrative Procedure Act (Title 5 U.S.C. secs. 500 to 559) to the greatest extent practicable in regard to notice, conduct and recording of meetings; access by the public to records; provision of information to the public; conduct of adjudicatory hearings; and issuance of decisions.
  4. The commission shall meet at least once annually and shall also meet upon the call of any voting commissioner.
  5. All meetings of the commission and its designated committees shall be open to the public with reasonable advance notice. The commission may, by majority vote, close a meeting to the public for the purpose of considering sensitive personnel or legal strategy matters. However, all commission actions and decisions shall be made in open meetings and appropriately recorded. A roll call may be required upon request of any voting commissioner.
  6. The commission may establish advisory committees for the purpose of advising the commission on any matters pertaining to waste management, waste generation and source and volume reduction.
  7. The office of the commission shall be in Illinois. The commission may appoint or contract for and compensate such staff necessary to carry out its duties and functions. The staff shall serve at the commission’s pleasure with the exception that staff hired as the result of securing federal funds shall be hired and governed under applicable federal statutes and regulations. In selecting any staff, the commission shall assure that the staff has adequate experience and formal training to carry out the functions assigned to it by the commission.
  8. All files, records and data of the commission shall be open to reasonable public inspection and may be copied upon payment of reasonable fees to be established where appropriate by the commission, except for information privileged against introduction in judicial proceedings. Such fees may be waived or shall be reduced substantially for not-for-profit organizations.
  9. The commission may:
  1. Enter into an agreement with any person to allow waste from outside the region to be disposed of at facilities in the region. However, no such agreement shall be effective unless and until ratified by a law enacted by the party state to which the waste would be sent for disposal.
  2. Enter into an agreement with any person to allow waste described in Article VII(a)(6) to be treated, stored, or disposed of at regional facilities. However, no such agreement shall be effective unless and until ratified by a law enacted by the host state of the regional facility where the waste would be sent for treatment, storage, or disposal.
  3. Enter into an agreement with any person to allow waste from outside the region to be treated or stored at facilities in the region. However, any such agreement shall be revoked as a matter of law if, within one (1) year of the effective date of the agreement, a law is enacted ordering the revocation by the party state where the waste would be sent for treatment or storage.
  4. Approve, or enter into an agreement with any person for, the export of waste from the region.
  5. Approve the disposal of waste generated within the region at a facility in the region other than a regional facility, subject to the limitations of Articles V(f) and VII(a)(6).
  6. Require that waste generated within the region be treated or stored at available regional facilities, subject to the limitations of Articles V(f), VII(a)(3), and VII(a)(6).
  7. Appear as an intervenor or party in interest before any court of law or any federal, state or local agency, board or commission in any matter related to waste management. In order to represent its views, the commission may arrange for any expert testimony, reports, evidence or other participation.
  8. Review the emergency closure of a regional facility, determine the appropriateness of that closure, and take whatever actions are necessary to ensure that the interests of the region are protected, provided that a party state with a total volume of waste recorded on low-level radioactive waste manifests for any year that is less than ten percent of the total volume recorded on such manifests for the region during the same year shall not be designated a host state or be required to store the region’s waste. In determining the ten percent exclusion, there shall not be included waste recorded on low-level radioactive waste manifests by a person whose principal business is providing a service by arranging for the collection, transportation, treatment, storage or disposal of such waste.
  9. Take any action which is appropriate and necessary to perform its duties and functions as provided in this compact.
  10. Suspend the privileges or revoke the membership of a party state.

    (j) The commission shall:

    (1) Submit within ten (10) days of its execution to the Governor and the appropriate officers of the legislative body of the party state in which any affected facility is located a copy of any agreement entered into by the commission under Article III(i)(1), Article III(i)(2), or Article III(i)(3).

    (2) Submit an annual report to, and otherwise communicate with, the governors and the appropriate officers of the legislative bodies of the party states regarding the activities of the commission. The annual report shall include a description of the status of the activities taken pursuant to any agreement entered into by the commission under Article III(i)(1), Article III(i)(2), or Article III(i)(3), and any violation of any provision thereof, and a description of the source, volume, activity, and current status of any waste from outside the region or waste described under Article VII(a)(6) that was treated, stored, or disposed of in the region in the previous year.

    (3) Hear, negotiate, and, as necessary, resolve by final decision disputes which may arise between the party states regarding this compact.

    (4) Adopt and amend, as appropriate, a regional management plan that plans for the establishment of needed regional facilities.

    (5) Adopt an annual budget.

    (k) Funding of the budget of the commission shall be provided as follows:

    (1) Each state, upon becoming a party state, shall pay $50,000 to the commission which shall be used for the administrative costs of the commission.

    (2) Each state hosting a regional facility shall levy surcharges on each user of the regional facility based upon its portion of the total volume and characteristics of wastes managed at that facility. The surcharges collected at all regional facilities shall:

  1. Be sufficient to cover the annual budget of the commission; and
  2. Be paid to the commission, provided, however, that each host state collecting surcharges may retain a portion of the collection sufficient to cover its administrative costs of collection.

    ( l ) The commission shall keep accurate accounts of all receipts and disbursements. The commission shall contract with an independent certified public accountant to annually audit all receipts and disbursements of commission funds and to submit an audit report to the commission. The audit report shall be made a part of the annual report of the commission required by this Article.

    (m) The commission may accept for any of its purposes and functions and may utilize and dispose of any donations, grants of money, equipment, supplies, materials and services from any state or the United States (or any subdivision or agency thereof), or interstate agency, or from any institution, person, firm or corporation. The nature, amount and condition, if any, attendant upon any donation or grant accepted or received by the commission together with the identity of the donor, grantor or lender, shall be detailed in the annual report of the commission. The commission shall establish guidelines for the acceptance of donations, grants, equipment, supplies, materials and services and shall review such guidelines annually.

    (n) The commission is not liable for any costs associated with any of the following:

    (1) The licensing and construction of any facility;

    (2) The operation of any facility;

    (3) The stabilization and closure of any facility;

    (4) The extended care of any facility;

    (5) The institutional control, after extended care of any facility; or

    (6) The transportation of waste to any facility.

    (o) The commission is a legal entity separate and distinct from the party states and is liable for its actions as a separate and distinct legal entity. Commissioners are not personally liable for actions taken by them in their official capacity.

    (p) Except as provided under Article III(n), Article III(o), Article VI(p), and Article VI(q), nothing in this compact alters liability for any action, omission, course of conduct or liability resulting from any causal or other relationships.

    (q) Any person aggrieved by a final decision of the commission which adversely affects the legal rights, duties or privileges of such person, may petition a court of competent jurisdiction, within sixty days after the commission’s final decision, to obtain judicial review of said final decision.

ARTICLE IV. REGIONAL MANAGEMENT PLAN.

The commission shall adopt a regional management plan designed to ensure the safe and efficient management of waste generated within the region. In adopting a regional waste management plan the commission shall:

  1. Adopt procedures for determining, consistent with considerations of public health and safety, the type and number of regional facilities which are presently necessary and which are projected to be necessary to manage waste generated within the region.
  2. Develop and adopt policies promoting source and volume reduction of waste generated within the region.
  3. Develop alternative means for the treatment, storage and disposal of waste, other than shallow-land burial or underground injection well.
  4. Prepare a draft regional management plan that shall be made available in a convenient form to the public for comment. The commission shall conduct one or more public hearings in each party state prior to the adoption of the regional management plan. The regional management plan shall include the commission’s response to public and party state comment.

ARTICLE V. RIGHTS AND OBLIGATIONS OF PARTY STATES.

  1. Each party state shall act in good faith in the performance of acts and courses of conduct which are intended to ensure the provision of facilities for regional availability and usage in a manner consistent with this compact.
  2. Other than the provisions of Article V(f) and Article VII(a)(6), each party state has the right to have all wastes generated within its borders managed at regional facilities. This right shall be subject to the provisions of this compact. All party states have an equal right of access to any facility outside the region made available to the region by any agreement entered into by the commission pursuant to Article III (i)(4).
  3. Party states or generators may negotiate for the right of access to a facility outside the region and may export waste outside the region subject to commission approval under Article III (i)(4).
  4. To the extent permitted by federal law, each party state may enforce any applicable federal and state laws, regulations and rules pertaining to the packaging and transportation of waste generated within or passing through its borders. Nothing in this section shall be construed to require a party state to enter into any agreement with the U.S. Nuclear Regulatory Commission.
  5. Each party state shall provide to the commission any data and information the commission requires to implement its responsibilities. Each party state shall establish the capability to obtain any data and information required by the commission.
  6. Waste originating from the Maxey Flats nuclear waste disposal site in Fleming County, Kentucky shall not be shipped to any facility in Illinois for storage, treatment or disposal. Disposition of these wastes shall be the sole responsibility of the Commonwealth of Kentucky and such waste shall not be subject to the provisions of Article IX(b)(3) and (4) of this compact.

ARTICLE VI. DEVELOPMENT AND OPERATION OF FACILITIES.

  1. Any party state may volunteer to become a host state, and the commission may designate that state as a host state.
  2. If all regional facilities required by the regional management plan are not developed pursuant to Article VI (a), or upon notification that an existing regional facility will be closed, the commission may designate a party state as a host state. A party state shall not be designated as a host state for any regional facility under this Article VI(b) unless that state’s total volume of waste recorded on low-level radioactive waste manifests for any year is more than ten percent (10%) of the total volume recorded on those manifests for the region during the same year. In determining the ten percent (10%) exclusion, there shall not be included waste recorded on low-level radioactive waste manifests by a person whose principal business is providing a service by arranging for the collection, transportation, treatment, storage, or disposal of such waste, or waste described in Article VII(a)(6).
  3. Each party state designated as a host state is responsible for determining possible facility locations within its borders. The selection of a facility site shall not conflict with applicable federal and host state laws, regulations and rules not inconsistent with this compact and shall be based on factors including, but not limited to, geological, environmental, engineering and economic viability of possible facility locations.
  4. Any party state designated as a host state may request the commission to relieve that state of the responsibility to serve as a host state. The commission may relieve a party state of this responsibility upon a showing by the requesting party state that no feasible potential regional facility site of the type it is designated to host exists within its borders or for other good cause shown and consistent with the purposes of the compact.
  5. After a state is designated a host state by the commission, it is responsible for the timely development and operation of a regional facility.
  6. To the extent permitted by federal and state law, a host state shall regulate and license any facility within its borders and ensure the extended care of that facility.
  7. The commission may designate a party state as a host state while a regional facility is in operation if the commission determines that an additional regional facility is or may be required to meet the needs of the region.
  8. Designation of a host state is for a period of twenty years or the life of the regional facility which is established under that designation, whichever is shorter. Upon request of a host state, the commission may modify the period of its designation.
  9. A host state may establish a fee system for any regional facility within its borders. The fee system shall be reasonable and equitable. This fee system shall provide the host state with sufficient revenue to cover any costs including, but not limited to, the planning, siting, licensure, operation, pre-closure corrective action or clean-up, monitoring, inspection, decommissioning, extended care and long-term liability, associated with such facilities. This fee system may provide for payment to units of local government affected by a regional facility for costs incurred in connection with such facility. This fee system may also include reasonable revenue beyond the costs incurred for the host state, subject to approval by the commission. The fee system shall include incentives for source or volume reduction and may be based on the hazard of the waste. A host state shall submit an annual financial audit of the operation of the regional facility to the commission.
  10. A host state shall ensure that a regional facility located within its borders which is permanently closed is properly decommissioned. A host state shall also provide for the extended care of a closed or decommissioned regional facility within its borders so that the public health and safety of the state and region are ensured, unless, pursuant to the federal Nuclear Waste Policy Act of 1982, the federal government has assumed title and custody of the regional facility and the federal government thereby has assumed responsibility to provide for the extended care of such facility.
  11. A host state intending to close a regional facility located within its borders shall notify the commission in writing of its intention and the reasons. Notification shall be given to the commission at least five years prior to the intended date of closure. This section shall not prevent an emergency closing of a regional facility by a host state to protect its air, land and water resources and the health and safety of its citizens. However, a host state which has an emergency closing of a regional facility shall notify the commission in writing within three (3) working days of its action and shall, within thirty (30) working days of its action, demonstrate justification for the closing.
  12. If a regional facility closes before an additional or new facility becomes operational, waste generated within the region may be shipped temporarily to any location agreed on by the commission until a regional facility is operational, provided that the region’s waste shall not be stored in a party state with a total volume of waste recorded on low-level radioactive waste manifests for any year which is less than ten percent (10%) of the total volume recorded on the manifests for the region during the same year. In determining the ten percent (10%) exclusion, there shall not be included waste recorded on low-level radioactive waste manifests by a person whose principal business is providing a service by arranging for the collection, transportation, treatment, storage or disposal of such waste, or waste described in Article VII(a)(6).
  13. A party state which is designated as a host state by the commission and fails to fulfill its obligations as a host state may have its privileges under the compact suspended or membership in the compact revoked by the commission.
  14. The host state shall create an “Extended Care and Long-Term Liability Fund” and shall allocate sufficient fee revenues, received pursuant to Article VI(i), to provide for the costs of:
  1. Decommissioning and other procedures required for the proper closure of a regional facility;
  2. Monitoring, inspection and other procedures required for the proper extended care of a regional facility;
  3. Undertaking any corrective action or clean-up necessary to protect human health and the environment from radioactive releases from a regional facility;
  4. Compensating any person for medical and other expenses incurred from damages to human health, personal injuries suffered from damages to human health and damages or losses to real or personal property, and accomplishing any necessary corrective action or clean-up on real or personal property caused by radioactive releases from a regional facility; the host state may allocate moneys in this fund in amounts as it deems appropriate to purchase insurance or to make other similar financial protection arrangements consistent with the purposes of this fund; this Article VI(n) shall in no manner limit the financial responsibilities of the site operator under Article VI(o), the party states under Article VI(p), or any person who sends waste to a regional facility, under Article VI(q).

    (o) The operator of a regional facility shall purchase an amount of property and third-party liability insurance deemed appropriate by the host state, pay the necessary periodic premiums at all times and make periodic payments to the Extended Care and Long-Term Liability Fund as set forth in Article VI(n) for such amounts as the host state reasonably determines is necessary to provide for future premiums to continue such insurance coverage, in order to pay the costs of compensating any person for medical and other expenses incurred from damages to human health, personal injuries suffered from damages to human health and damages or losses to real or personal property, and accomplishing any necessary corrective action or clean-up on real or personal property caused by radioactive releases from a regional facility. In the event of such costs resulting from radioactive releases from a regional facility, the host state should, to the maximum extent possible, seek to obtain moneys from such insurance prior to using moneys from the Extended Care and Long-Term Liability Fund.

    (p) All party states shall be liable for the cost of extended care and long-term liability in excess of moneys available from the Extended Care and Long-Term Liability Fund, as set forth in Article VI(n) and from the property and third-party liability insurance as set forth in Article VI(o). A party state may meet such liability for costs by levying surcharges upon generators located in the party state. The extent of such liability shall be based on the proportionate share of the total volume of waste placed in the regional facility by generators located in each such party state. Such liability shall be joint and several among the party states with a right of contribution between the party states. However, this section shall not apply to a party state with a total volume of waste recorded on low-level radioactive waste manifests for any year that is less than ten percent (10%) of the total volume recorded on such manifests for the region during the same year.

    (q) Any person who sends waste from outside the region or waste described in Article VII(a)(6) for treatment, storage, or disposal at a regional facility shall be liable for the cost of extended care and long-term liability of that regional facility in excess of the moneys available from the Extended Care and Long-Term Liability Fund as set forth in Article VI(n) and from the property and third-party liability insurance as set forth in Article VI(o). The extent of the liability for the person shall be based on the proportionate share of the total volume of waste sent by that person to the regional facility.

ARTICLE VII. OTHER LAWS AND REGULATIONS.

  1. Nothing in this compact:
  1. Abrogates or limits the applicability of any Act of Congress or diminishes or otherwise impairs the jurisdiction of any federal agency expressly conferred thereon by the Congress;
  2. Prevents the enforcement of any other law of a party state which is not inconsistent with this compact;
  3. Prohibits any storage or treatment of waste by the generator on its own premises;
  4. Affects any administrative or judicial proceeding pending on the effective date of this compact;
  5. Alters the relations between the respective internal responsibility of the government of a party state and its subdivisions;
  6. Establishes any right to the treatment, storage or disposal at any facility in the region or provides any authority to prohibit export from the region of waste that is owned or generated by the United States Department of Energy, owned or generated by the United States Navy as a result of the decommissioning of vessels of the United States Navy, or owned or generated as the result of any research, development, testing, or production of any atomic weapon; or
  7. Affects the rights and powers of any party state or its political subdivisions, to the extent not inconsistent with this compact, to regulate and license any facility or the transportation of waste within its borders or affects the rights and powers of any state or its political subdivisions to tax or impose fees on the waste managed at any facility within its borders;
  8. Requires a party state to enter into any agreement with the United States Nuclear Regulatory Commission; or
  9. Alters or limits liability of transporters of waste and owners and operators of sites for their acts, omissions, conduct or relationships in accordance with applicable laws.

    (b) For purposes of this compact, all state laws or parts of laws in conflict with this compact are hereby superseded to the extent of the conflict.

    (c) No law, rule, regulation, fee or surcharge of a party state, or of any of its subdivisions or instrumentalities, may be applied in a manner which discriminates against the generators of another party state.

    (d) No person who provides a service by arranging for collection, transportation, treatment, storage or disposal of waste from outside the region shall be allowed to dispose of any waste, regardless of origin, in the region unless specifically permitted under an agreement entered into by the commission in accordance with the requirements of Article III(i)(1).

ARTICLE VIII. ELIGIBLE PARTIES, WITHDRAWAL, REVOCATION, ENTRY INTO FORCE, TERMINATION.

  1. Eligible parties to this compact are the State of Illinois and Commonwealth of Kentucky. Eligibility terminates on April 15, 1985.
  2. An eligible state becomes a party state when the state enacts the compact into law and pays the membership fee required in Article III(k)(1).
  3. The commission is formed upon the appointment of the commissioners and the tender of the membership fee payable to the commission by the eligible states. The governor of Illinois shall convene the initial meeting of the commission. The commission shall cause legislation to be introduced in the Congress which grants the consent of the Congress to this compact, and shall take action necessary to organize the commission and implement the provisions of this compact.
  4. Other than the special circumstances for withdrawal in section (f) of this Article, either party state may withdraw from this compact at any time by repealing the authorizing legislation, but no withdrawal may take effect until five years after the governor of the withdrawing state gives notice in writing of the withdrawal to the commission and to the governor of the other state. Withdrawal does not affect any liability already incurred by or chargeable to a party state prior to the time of such withdrawal. Any host state which grants a disposal permit for waste generated in a withdrawing state shall void the permit when the withdrawal of that state is effective.
  5. This compact becomes effective July 1, 1984, or at any date subsequent to July 1, 1984, upon enactment by the eligible states. However, Article IX(b) shall not take effect until the Congress has by law consented to this compact. The Congress shall have an opportunity to withdraw such consent every five years. Failure of the Congress affirmatively to withdraw its consent has the effect of renewing consent for an additional five year period. The consent given to this compact by the Congress shall extend to the power of the region to ban the shipment of waste into the region pursuant to Article III(i)(1) and to prohibit exportation of waste generated within the region under Article III(i)(4).
  6. A state which has been designated a host state may withdraw from the compact. The option to withdraw must be exercised within ninety days of the date the governor of the designated state receives written notice of the designation. Withdrawal becomes effective immediately after notice is given in the following manner. The governor of the withdrawing state shall give notice in writing to the commission and to the governor of each party state. A state which withdraws from the compact under this section forfeits any funds already paid pursuant to this compact. A designated host state which withdraws from the compact after ninety days and prior to fulfilling its obligations shall be assessed a sum the commission determines to be necessary to cover the costs borne by the commission and remaining party states as a result of that withdrawal.

ARTICLE IX. PENALTIES.

  1. Each party state shall prescribe and enforce penalties against any person who is not an official of another state for violation of any provision of this compact.
  2. Unless authorized by the commission pursuant to Article III(i), or otherwise provided in this compact, after January 1, 1986 it is a violation of this compact;
  1. For any person to deposit at a facility in the region waste from outside the region;
  2. For any facility in the region to accept waste from outside the region;
  3. For any person to export from the region waste that is generated within the region; or
  4. For any person to dispose of waste at a facility other than a regional facility;
  5. For any person to deposit at a regional facility waste described in Article VII(a)(6); or
  6. For any regional facility to accept waste described in Article VII(a)(6).

    (c) It is a violation of this compact for any person to treat or store waste at a facility other than a regional facility if such treatment or storage is prohibited by the commission under Article III(i)(6).

    (d) Each party state acknowledges that the receipt by a host state of waste packaged or transported in violation of applicable laws, rules or regulations may result in the imposition of sanctions by the host state which may include suspension or revocation of the violator’s right of access to the facility in the host state.

    (e) Each party state has the right to seek legal recourse against any party state which acts in violation of this compact.

ARTICLE X. SEVERABILITY AND CONSTRUCTION.

The provisions of this compact shall be severable and if any phrase, clause, sentence or provision of this compact is declared by a court of competent jurisdiction to be contrary to the Constitution of any participating state or the United States, or if the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If any provision of this compact shall be held contrary to the Constitution of any state participating therein, the compact shall remain in full force and effect as to the state affected as to all severable matters.

Compiler’s Notes.

The reference to section 11e(2) of the Atomic Energy Act of 1954, in Article II, is apparently a reference to 42 USCS § 2014(e)(2). The federal Nuclear Waste Policy Act of 1982, referred to in Article VI, is compiled as 42 USCS § 10101 et seq.

Research References and Practice Aids

Northern Kentucky Law Review.

Reynolds, Who’s Going to Regulate NORM?, 22 N. Ky. L. Rev. 5 (1995).

Radiation Operators

211.860. Title, purpose of KRS 211.860 to 211.890. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 339, §§ 1, 2) was repealed by Acts 1974, ch. 74, Art. VI, § 108, effective June 21, 1974.

211.861. Legislative findings — Purpose.

  1. The General Assembly finds:
    1. That the Central Midwest Interstate Low-Level Radioactive Waste Compact was enacted by the State of Illinois and the Commonwealth of Kentucky to provide the instrument and framework for a cooperative effort, and to provide sufficient facilities for the proper management of low-level radioactive waste generated within the region, limiting the number of facilities, protecting the health and safety of citizens, and promoting the volume and source reduction of low-level radioactive waste generated in the region, and for other purposes.
    2. That it is the responsibility of each party state to the compact to prescribe and enforce penalties against any person who is not an officer of another state for violation of any provision of the compact.
  2. It is the purpose of KRS 211.861 to 211.869 to establish a program by which these sections and the provisions of the compact may be implemented and enforced.

History. Enact. Acts 1998, ch. 46, § 1, effective July 15, 1998.

211.862. Definitions for KRS 211.861 to 211.869.

As used in KRS 211.861 to 211.869 , unless the compact requires otherwise:

  1. “Commission” means the Central Midwest Interstate Low-Level Radioactive Waste Commission;
  2. “Cabinet” means the Cabinet for Health and Family Services;
  3. “Compact” means the Central Midwest Interstate Low-Level Radioactive Waste Compact;
  4. “Disposal” means the isolation of waste from the biosphere in a permanent facility designed for that purpose;
  5. “Facility” means a parcel of land or site, together with the structures, equipment, and improvements on, or appurtenant to, the land or site, that is used or is being developed for the treatment, storage, or disposal of low-level radioactive waste;
  6. “Low-level radioactive waste” or “waste” means radioactive waste not classified as high-level radioactive waste, transuranic waste, spent nuclear fuel, or by-product material as defined in Section 11e(2) of the Federal Atomic Energy Act. This definition shall apply regardless of any declaration by the federal government or any state that any radioactive material is exempt from any regulatory control;
  7. “Management plan” means the plan adopted by the commission for the storage, transportation, treatment, and disposal of waste within the region;
  8. “Naturally occurring radioactive material” (NORM) means any of the primordial radionuclides or radioactivity present in soils, rocks, and materials, that are not concentrated or disturbed as a result of human activities;
  9. “Person” means any individual, corporation, business enterprise, or other legal entity, public or private, and any legal successor, representative, agent or agency of that individual, corporation, business enterprise, or legal entity;
  10. “Region” means the geographical area of the state of Illinois and the Commonwealth of Kentucky;
  11. “Regional facility” means any facility as defined in this section that is located in Kentucky, and established by Kentucky pursuant to designation of Kentucky as a host state by the commission;
  12. “Storage” means the temporary holding of radioactive material for treatment or disposal;
  13. “Technologically enhanced naturally-occurring radioactive material” or “TENORM” means:
    1. Naturally occurring radioactive material with a radionuclide concentration that has been increased by human activities above levels encountered in the natural state; or
    2. Naturally occurring radioactive material made more accessible by human activity.

      “TENORM” does not include the natural radioactivity of rocks or soils or source material, byproduct material, or special nuclear material as defined in 42 U.S.C. secs. 2011 et seq. and relevant federal regulations implemented by the Nuclear Regulatory Commission; and

  14. “Treatment” means any method, technique, or process, including storage for radioactive decay, designed to change the physical, chemical, or biological characteristics of the radioactive material in order to render the radioactive material safe for transport or management, amenable to recovery, convertible to another usable material, or reduced in volume.

HISTORY: Enact. Acts 1998, ch. 46, § 2, effective July 15, 1998; 2005, ch. 99, § 385, effective June 20, 2005; 2017 ch. 116, § 1, effective June 29, 2017.

Compiler’s Notes.

The reference to section 11e(2) of the federal Atomic Energy Act, in subdivision (7), is apparently a reference to 42 USCS § 2014(e)(2).

211.863. Control of commerce of low-level radioactive waste in and out of Kentucky — Prohibitions — Exemption.

  1. Unless otherwise authorized by the commission:
    1. After July 15, 1998, no person shall deposit at a facility in Kentucky any low-level radioactive waste not generated within the region;
    2. After July 15, 1998, no person shall accept at a facility in Kentucky low-level radioactive waste not generated within the region;
    3. No person shall deposit at any regional facility in Kentucky any low-level radioactive waste that is owned or generated by the United States Department of Energy, owned or generated by the United States Navy as a result of decommissioning of vessels of the United States Navy, or owned or generated as the result of any research, development, testing, or production of any atomic weapon;
    4. No person shall accept at any regional facility in Kentucky any low-level radioactive waste that is owned or generated by the United States Department of Energy, owned or generated by the United States Navy as a result of decommissioning of vessels of the United States Navy, or owned or generated as the result of any research, development, testing, or production of any atomic weapon;
    5. No person shall export from the region low-level radioactive waste that is generated in Kentucky, other than low-level radioactive waste that is owned or generated by the United States Department of Energy, owned or generated by the United States Navy as a result of decommissioning of vessels of the United States Navy, or owned or generated as the result of any research, development, testing, or production of any atomic weapon;
    6. No person shall dispose of low-level radioactive waste in Kentucky except at a regional disposal facility; and
    7. No person who provides a service by arranging for the collection, transportation, treatment, storage, or disposal of low-level radioactive waste from outside the region shall dispose of any low-level radioactive waste, regardless of origin, at a facility in Kentucky without prior specific approval by the commission.
  2. No person shall treat or store low-level radioactive waste at a facility other than a regional facility, if the treatment or storage is prohibited by the commission.
  3. Technologically enhanced naturally-occurring radioactive material (TENORM) and naturally occurring radioactive material (NORM) as defined in KRS 211.862 shall be the exclusive regulatory responsibility of the states, except that no person shall import technologically enhanced naturally occurring radioactive material (TENORM) from outside the region for disposal in Kentucky, arrange for disposal of, or dispose of such imported material in Kentucky, if the imports or disposal are inconsistent with polices of the commission.
  4. Any low-level radioactive waste which is not the responsibility of the Commonwealth of Kentucky or the Central Midwest Interstate Low-Level Radioactive Waste Commission pursuant to 42 U.S.C. sec. 2297 h-11 shall be exempt from the provisions of KRS 211.861 to 211.869 and from the provisions of KRS 211.859 .
  5. Drill cuttings generated from wells permitted and regulated by the Energy and Environment Cabinet pursuant to KRS Chapter 353 that contain naturally occurring radioactive materials that have been made more accessible shall not be regulated as TENORM under this chapter.
  6. Except as provided in subsection (5) of this section, the cabinet may, by executive order or administrative regulation, regulate as TENORM any naturally occurring radioactive material made more accessible by human activity, or naturally occurring radioactive material that has radionuclide concentrations increased by human activities above levels encountered in the natural state.

HISTORY: Enact. Acts 1998, ch. 46, § 3, effective July 15, 1998; 2017 ch. 116, § 2, effective June 29, 2017.

211.865. Cabinet’s authority to promulgate administrative regulations.

  1. The cabinet shall promulgate administrative regulations to administer and enforce the provisions of KRS 211.861 to 211.869 . The administrative regulations shall be promulgated with the consultation and cooperation of the commission.
  2. Administrative regulations promulgated by the cabinet shall prohibit the shipment into or acceptance of low-level radioactive waste in Kentucky if the shipment or acceptance would result in a violation of any provision of the compact or KRS 211.863 , 211.865 , and 211.869 .
  3. The cabinet may, by administrative regulation, impose conditions on the shipment into or acceptance of low-level radioactive waste in Kentucky that the cabinet determines to be reasonable and necessary to enforce the provisions of KRS 211.863 , 211.865 , and 211.869 . The conditions may include, but are not limited to:
    1. Requiring prior notification of any proposed shipment or receipt of low-level radioactive waste;
    2. Requiring the shipper or recipient to identify the location to which the low-level radioactive waste will be sent for disposal following treatment or storage in Kentucky;
    3. Limiting the time that low-level radioactive waste from outside of Kentucky may be held in Kentucky;
    4. Requiring the shipper or recipient to post bond, or by other mechanisms assure that radioactive material will not be treated, stored, or disposed of in Kentucky in violation of any provisions of KRS 211.863 , 211.865 , and 211.869 ; and
    5. Requiring that the shipper consent to service of process before shipment of low-level radioactive waste into Kentucky.
  4. The administrative regulations promulgated by the cabinet may provide for the granting of exemptions, but only upon a showing by the applicant that the granting of an exemption would be consistent with the compact.

History. Enact. Acts 1998, ch. 46, § 4, effective July 15, 1998.

211.867. Acceptance of donations — Trust and agency fund.

The cabinet may accept donations of money, equipment, supplies, materials, and services from any person for accomplishing the purposes of KRS 211.861 to 211.869 . Any donation of money shall be deposited into the State Treasury and credited to a trust and agency fund to be used by the cabinet in carrying out the provisions of KRS 211.861 to 211.869 and shall be expended by the cabinet only in accordance with the purposes of the donation.

History. Enact. Acts 1998, ch. 46, § 6, effective July 15, 1998.

211.869. Penalties.

  1. Any person who fails to comply with any provision of KRS 211.859 or 211.863 , or with any administrative regulations promulgated pursuant to KRS 211.859 or 211.865 , or fails to comply with any order of the cabinet issued pursuant to KRS 211.859 or KRS 211.863 and 211.865 shall be assessed a civil penalty not less than ten thousand dollars ($10,000) nor more than one hundred thousand dollars ($100,000). Each day of the violation or noncompliance shall constitute a separate offense.
  2. Any person who fails to pay a civil penalty imposed pursuant to subsection (1) of this section, or any portion of that penalty, shall be liable in a civil action in an amount not to exceed four (4) times the amount imposed and not paid. Any civil penalties recovered shall be deposited into the State Treasury and credited to a trust and agency fund to be used by the cabinet in carrying out the provisions of KRS 211.861 to 211.869 .
  3. Any person who intentionally violates a provision of KRS 211.863 shall be guilty of a Class D felony.
  4. At the request of the cabinet, the Attorney General shall, on behalf of the Commonwealth of Kentucky, bring an action for the recovery of any civil penalty or the prosecution of any criminal offense in violation of KRS 211.863 and 211.865 .

History. Enact. Acts 1998, ch. 46, § 5, effective July 15, 1998.

Research References and Practice Aids

Cross-References.

Sentence of imprisonment for felony KRS 532.060 .

211.870. Regulation of radiation sources. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 339, § 3; 1974, ch. 74, Art. VI, § 70; 1996, ch. 318, § 111, effective July 15, 1996; 1998, ch. 426, § 326, effective July 15, 1998; 2005, ch. 99, § 386, effective June 20, 2005) was repealed by Acts 2012, ch. 50, § 20, effective July 12, 2012.

211.880. State radiation operators advisory committee — Members — Terms — Powers — Compensation. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 339, § 4) was repealed by Acts 1974, ch. 74, Art. VI, § 108.

211.890. Application fees. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 339, § 5; 1974, ch. 74, Art. VI, § 107(1), (10); 1980, ch. 188, § 206, effective July 15, 1980; 1998, ch. 426, § 327, effective July 15, 1998; 2005, ch. 99, § 387, effective June 20, 2005) was repealed by Acts 2012, ch. 50, § 20, effective July 12, 2012.

Nuclear Waste Disposal Sites

211.892. Legislative finding.

It is the finding of the General Assembly of the Commonwealth of Kentucky that the original concept of shallow-land nuclear burial sites has not been met in Kentucky in that measurable amounts of radioactivity have been released to the surrounding environment from an existing nuclear waste facility. The mechanism for providing for the financing of perpetual care and maintenance of such a site has proven to be inadequate and also did not take into consideration early closing of the site. The detection of radioactivity in a new unused trench on such site provided unequivocal evidence that migration of radioactive liquids can and did occur in a subsurface manner. Current knowledge of the complex geologic and hydrologic features of such site is insufficient to develop a model capable of predicting future behavior of the site. It is the intent of the General Assembly that because of these problems, the existing site should remain closed unless solutions are found which will assure site safety and integrity and remedy all of the aforesaid problems. It is at this time in the best interest of the public health and safety of the citizens of the Commonwealth that the state maintain ownership and, thus, ultimate decision-making authority over nuclear waste sites located within its borders.

History. Enact. Acts 1980, ch. 17, § 1, effective July 15, 1980.

Opinions of Attorney General.

Kentucky cannot create a compact, with Kentucky the only member, and thereby gain the benefit of the federal Low Level Waste Policy Act allowing compact members to exclude waste generated by noncompact states. OAG 83-153 .

If Kentucky chooses not to join a regional compact for low level nuclear waste and instead decides to build a disposal facility for Kentucky generated wastes, Kentucky cannot exclude out-of-state generated wastes. OAG 83-153 .

If Kentucky joined one of the proposed regional interstate compacts for nuclear waste management, most if not all of the provisions in KRS Chapter 211 pertaining to opening and closing nuclear waste disposal facilities would be superceded by the terms of such a compact to the extent the existing statutes conflict with the compact. If Kentucky does not join a compact, it may not ban importation of waste for disposal at disposal facilities operating in Kentucky. OAG 83-153 .

211.893. Legislative findings relating to naturally occurring radioactive material (NORM) — Required revision of administrative regulations to ensure proper management of oil- and gas-related wastes containing NORM — Report to LRC.

  1. The General Assembly finds that:
    1. “Naturally occurring radioactive material” or “NORM” is a term defined in KRS 211.862 ;
    2. Certain oil and gas production and storage activities result in the concentration or enhancement of the natural radioactivity of rocks or soils into NORM;
    3. The Cabinet for Health and Family Services, Radiation Health Branch, is charged by KRS 211.842 with responsibility for radiation control in the Commonwealth;
    4. The Division of Oil and Gas, the Division of Water, and the Division of Waste Management in the Energy and Environment Cabinet issue permits addressing oil and gas exploration and production operations and management of associated wastes;
    5. The Energy and Environment Cabinet, Division of Oil and Gas was directed in 2003 to promulgate administrative regulations and take all actions necessary to ensure efficient oil and gas operations and to protect the property, health, and safety of the citizens of the Commonwealth in a manner consistent with KRS Chapter 353;
    6. The Cabinet for Health and Family Services is specifically authorized to adopt administrative regulations necessary to implement the Central Midwest Interstate Low-Level Radioactive Waste Compact; and
    7. The need for review and revision of the statutes and regulations associated with management of NORM wastes is necessary and advisable in order to ensure proper management and disposal of wastes containing NORM generated within or outside the Commonwealth.
  2. The Energy and Environment Cabinet and the Cabinet for Health and Family Services are directed to exercise their regulatory authority to revise existing regulations in order to ensure the proper management of oil- and gas-related wastes containing NORM, including consideration of such issues as:
    1. Development of a manifest system for the transport and disposal of NORM wastes and wastewater;
    2. Development of administrative regulations as authorized by the General Assembly in KRS 211.865(3);
    3. Review of state waste and water permitting programs to ensure proper management of wastes and wastewaters containing NORM; and
    4. Identification of and recommendations on any changes to existing statutes in order to facilitate management of oil and gas production wastes in a manner commensurate with the risks that those wastes may pose to the public health and the environment.
  3. The Energy and Environment Cabinet and the Cabinet for Health and Family Services are encouraged to seek input from oil and gas producers, transporters of oil and gas wastes, the public at large, environmental organizations, the Kentucky Geological Survey, landfill owners and operators, and the Conference of Radiation Control Program Directors, among others, in revising the administrative regulations. The Energy and Environment Cabinet and the Cabinet for Health and Family Services shall report to the Legislative Research Commission their progress in complying with this section by December 1, 2016.

HISTORY: 2016 ch. 130, § 1, effective April 13, 2016.

211.894. Conditions for relinquishing of ownership of low-level nuclear waste disposal site — Commonwealth policy as to sites or facilities — Contracts or agreements with federal government.

  1. The Governor, the secretary of the Cabinet for Health and Family Services, the secretary of the Energy and Environment Cabinet or any other state agency shall not enter into a contract or an agreement of any kind with the federal government relinquishing ownership of a low-level nuclear waste disposal site located in the Commonwealth without prior approval of a majority of the members of the Kentucky House of Representatives and a majority of the members of the Kentucky Senate.
  2. It shall be the policy of the Commonwealth to retain final authority for approving or disapproving the locating, opening, closing, or reopening of a nuclear waste disposal site or facility within its borders.
  3. The Governor or appropriate state agencies may enter into contracts and agreements with the federal government relating to nuclear waste disposal sites located in the Commonwealth on July 15, 1980, that do not violate the provisions of subsections (1) and (2) of this section.

History. Enact. Acts 1980, ch. 17, § 2, effective July 15, 1980; 1998, ch. 426, § 328, effective July 15, 1998; 2005, ch. 99, § 388, effective June 20, 2005; 2010, ch. 24, § 314, effective July 15, 2010.

Opinions of Attorney General.

If Kentucky chooses not to join a regional compact for low level nuclear waste and instead decides to build a disposal facility for Kentucky generated wastes, Kentucky cannot exclude out-of-state generated wastes. OAG 83-153 .

Kentucky cannot create a compact, with Kentucky the only member, and thereby gain the benefit of the federal Low Level Waste Policy Act allowing compact members to exclude waste generated by noncompact states. OAG 83-153 .

If Kentucky joined one of the proposed regional interstate compacts for nuclear waste management, most if not all of the provisions in KRS Chapter 211 pertaining to opening and closing nuclear waste disposal facilities would be superceded by the terms of such a compact to the extent the existing statutes conflict with the compact. If Kentucky does not join a compact, it may not ban importation of waste for disposal at disposal facilities operating in Kentucky. OAG 83-153 .

211.896. Conditions for reopening of closed facility.

  1. Any nuclear waste disposal facility, licensed and regulated by the Kentucky Cabinet for Health and Family Services, which is closed either because there is doubt as to the public safety of the site, the integrity of the site, the economic feasibility of financing perpetual care and maintenance and decommissioning of the site, or compliance with cabinet regulations, shall not reopen without:
    1. A finding of fact by the secretary of the Cabinet for Health and Family Services and the secretary of the Energy and Environment Cabinet that all reasons for site closure have been addressed and resolved such that there is no longer any doubt as to the public safety or integrity of the site or the ability to adequately finance the perpetual care and maintenance and decommissioning of the site or the compliance of the site with cabinet regulations; and
    2. A public hearing and the taking of public comment on such findings of fact; and
    3. Approval of a majority of the members of the House of Representatives and a majority of the members of the Senate; and
    4. Approval of the Governor.
  2. The Cabinet for Health and Family Services shall be responsible for organizing the public hearings, which shall be held in the county in which the nuclear waste disposal facility is located and shall be at a time and place convenient for public participation. Adequate notification shall be given to the public of the intention to reopen a nuclear waste disposal site and the cabinet shall make available to the public the data and information upon which its decision to recommend approval of reopening of the site is based.

History. Enact. Acts 1980, ch. 17, § 3, effective July 15, 1980; 1998, ch. 426, § 329, effective July 15, 1998; 2005, ch. 99, § 389, effective June 20, 2005; 2010, ch. 24, § 315, effective July 15, 2010.

Opinions of Attorney General.

If Kentucky joined one of the proposed regional interstate compacts for nuclear waste management, most if not all of the provisions in KRS Chapter 211 pertaining to opening and closing nuclear waste disposal facilities would be superceded by the terms of such a compact to the extent the existing statutes conflict with the compact. If Kentucky does not join a compact, it may not ban importation of waste for disposal at disposal facilities operating in Kentucky. OAG 83-153 .

211.898. Stabilization and decommissioning of facility owned by Commonwealth.

The Energy and Environment Cabinet shall proceed toward the stabilization and decommissioning of any nuclear waste facility owned by the Commonwealth on July 15, 1980, as expeditiously as is reasonably possible in order to place the facility in such a condition that active ongoing maintenance is eliminated and only surveillance and monitoring are required.

History. Enact. Acts 1980, ch. 17, § 4, effective July 15, 1980; 2010, ch. 24, § 316, effective July 15, 2010.

Lead Poisoning Prevention

211.900. Definitions for KRS 211.900 to 211.905 and KRS 211.994.

As used in KRS 211.900 to 211.905 and KRS 211.994 , unless the context otherwise requires:

  1. “Cabinet” shall mean the Cabinet for Health and Family Services;
  2. “Secretary” shall mean the secretary for health and family services or his authorized representative;
  3. “Lead-based hazard” shall mean levels contained in the federal Residential Lead-based Paint Hazard Reduction Act of 1992;
  4. “Dwelling” shall mean any structure or child-occupied facility, all or a part of which is designed for human habitation;
  5. “Dwelling unit” shall mean any room or group of rooms or other interior areas of a dwelling or child-occupied facility designed or used for human habitation;
  6. “Owner” shall mean any person who, alone, jointly, or severally with others, has legal title to, charge, care, or control of any dwelling or dwelling unit as owner, agent of the owner, or as executor, administrator, trustee, conservator, or guardian of the estate of the owner;
  7. “At-risk persons” shall mean all children seventy-two (72) months of age and younger and pregnant women who reside in dwellings or dwelling units which were constructed and painted prior to 1978, or reside in geographic areas defined by the cabinet as high risk, or possess one (1) or more risk factors identified in a lead poisoning verbal risk assessment approved by the cabinet;
  8. “Outreach programs” shall mean those efforts to locate, screen, and diagnose for elevated lead blood levels, those at-risk persons who are not utilizing existing screening and diagnostic programs or those programs which may be established after June 21, 1974;
  9. “Elevated blood lead level” means any blood lead level greater than or equal to ten (10) micrograms per deciliter of whole blood or a level consistent with recommendations by the Centers for Disease Control and Prevention and the American Academy of Pediatrics; and
  10. “Confirmed elevated blood lead level” means a first venous blood lead test or a second capillary blood lead test taken within the time frames specified by the cabinet where the blood lead test result is greater than or equal to fifteen (15) micrograms per deciliter of whole blood.

History. Enact. Acts 1974, ch. 20, § 1, effective June 21, 1974; 1982, ch. 141, § 72, effective July 1, 1982; 1998, ch. 426, § 330, effective July 15, 1998; 2005, ch. 99, § 390, effective June 20, 2005; 2006, ch. 180, § 2, effective July 12, 2006.

Compiler’s Notes.

This section was amended by § 76 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

NOTES TO DECISIONS

1.Local Programs.

The entry of the state into the field of lead poisoning prevention pursuant to KRS 211.900 to 211.905 and KRS 211.994 did not preempt local regulations and enforcement, because that legislation not only authorizes local action but encourages local programs; accordingly, a county board of health was not preempted or otherwise prohibited from enforcing its lead poisoning regulations where the regulations did not conflict with the statutes on the same subject. Commonwealth v. Do, Inc., 674 S.W.2d 519, 1984 Ky. LEXIS 265 ( Ky. 1984 ).

211.901. Statewide program for prevention, screening, diagnosis, and treatment of lead poisoning — Duties of secretary — Authorization of local regulations and programs.

  1. The secretary shall establish a statewide program for the prevention, screening, diagnosis, and treatment of lead poisoning, including identification of the sources of such poisoning through such research, educational, epidemiological, and clinical activities as may be necessary.
  2. The secretary shall also initiate activities which:
    1. Will either provide for or support the monitoring of all medical laboratories, private and public hospitals which perform lead determination tests on human blood or other tissues, so as to insure the accuracy of such tests;
    2. Will develop or encourage the development of appropriate programs and studies to identify sources of lead intoxication and assist other entities in the identification of lead in children’s blood and the sources of that intoxication; and
    3. Will provide for or support the development of outreach programs to identify, screen, and diagnose for elevated lead blood levels, at-risk persons not otherwise utilizing existing screening and diagnostic programs.
  3. The secretary may contract with any agencies, individuals, or groups for the provision of services necessary to administer KRS 211.900 to 211.905 and KRS 211.994 .
  4. The secretary may provide financial and technical assistance and consultation to local, county, or district governmental or private agencies for the promotion, establishment and maintenance of lead poisoning prevention, screening, diagnostic, and treatment programs.
  5. The secretary shall have the power to adopt, amend, or rescind such rules and regulations as deemed necessary or suitable for the proper administration of KRS 211.900 to 211.905 and KRS 211.994 . The regulation shall include, but not be limited to, those which govern permissible limits of lead-based hazards in and about dwellings and dwelling units.
  6. Local boards of health may, by the adoption of local regulations, establish programs for the prevention, screening, diagnosis, and treatment of lead poisoning; provided that such regulations are the same as the provisions of KRS 211.900 to 211.905 and KRS 211.994 and the regulations promulgated by the secretary pursuant to subsection (5) of this section.

History. Enact. Acts 1974, ch. 20, § 2, effective June 21, 1974; 1984, ch. 21, § 1, effective July 13, 1984; 2006, ch. 180, § 3, effective July 12, 2006.

NOTES TO DECISIONS

1.Local Programs.

The entry of the state into the field of lead poisoning prevention pursuant to KRS 211.900 to 211.905 and KRS 211.994 did not preempt local regulations and enforcement, because that legislation not only authorizes local action but encourages local programs; accordingly, a county board of health was not preempted or otherwise prohibited from enforcing its lead poisoning regulations where the regulations did not conflict with the statutes on the same subject. Commonwealth v. Do, Inc., 674 S.W.2d 519, 1984 Ky. LEXIS 265 ( Ky. 1984 ).

Opinions of Attorney General.

Inspection of the lead poisoning reports in the custody of the county board of health serves the public interest by revealing whether the board is discharging its duties relative to the prevention, screening, diagnosis, and treatment of lead poisoning. Whatever the privacy interests of the individuals suspected or found to have lead poisoning, those interests are clearly outweighed by the public’s interest in disclosure which is statutorily recognized at KRS 211.902(2). OAG 02-ORD-80.

211.902. Reports on persons with excess level of lead in blood — Records of reports to be indexed and analyzed — Information to local organizations.

  1. Every physician, nurse, hospital administrator, director of a clinical laboratory, or public health officer who receives information of the existence of any person found or suspected to have a two and three-tenths (2.3) micrograms per deciliter of whole blood level of lead in his or her blood shall report the information to the cabinet within seven (7) days and to the local or district health officer in approved electronic format as prescribed by administrative regulations promulgated by the cabinet in accordance with KRS Chapter 13A. The contents of the report shall include but not be limited to the following information:
    1. The full name and address of the person tested;
    2. The date of birth of such person;
    3. The type of specimen and the results of the appropriate laboratory tests made on such person; and
    4. Any other information about such person deemed necessary by the cabinet to carry out the provisions of this section.

      Any physician, nurse, hospital administrator, director of clinical laboratory, public health officer, or allied health professional making such a report in good faith shall be immune from any civil or criminal liability that otherwise might be incurred from the making of such report.

  2. Notwithstanding the requirements of subsection (1) of this section, a clinical or research laboratory shall not be fined or otherwise disciplined for failure to report required information to the cabinet if the information was not provided by the medical professional obtaining the blood sample.
  3. The secretary shall maintain comprehensive records of all reports submitted pursuant to KRS 211.900 to 211.905 and 211.994 . Records shall be analyzed and geographically indexed by county annually in order to determine the location of areas with a high incidence of elevated blood lead levels reported. The records and analysis shall be public record and provided upon request; provided, however, that the name of any individual shall not be made public unless the secretary determines that such inclusion is necessary to protect the health and well-being of the affected individual.
  4. When an elevated blood lead level is reported to the cabinet, it shall inform such local boards of health, local health departments, and other persons and health organizations as deemed necessary.

HISTORY: Enact. Acts 1974, ch. 20, § 3, effective June 21, 1974; 2006, ch. 180, § 4, effective July 12, 2006; 2012, ch. 158, § 46, effective July 12, 2012; 2017 ch. 80, § 43, effective June 29, 2017.

Opinions of Attorney General.

Inspection of the lead poisoning reports in the custody of the county board of health serves the public interest by revealing whether the board is discharging its duties relative to the prevention, screening, diagnosis, and treatment of lead poisoning. Whatever the privacy interests of the individuals suspected or found to have lead poisoning, those interests are clearly outweighed by the public’s interest in disclosure which is statutorily recognized at KRS 211.902(2). OAG 02-ORD-80.

211.903. Testing for lead poisoning.

  1. Testing for lead poisoning shall be an eligible benefit for recipients of the Commonwealth’s Medical Assistance Program. In addition, testing for lead poisoning shall be made available as part of the regular immunization program offered by the cabinet and shall be provided without charge by the cabinet and by local health departments.
  2. The secretary shall establish programs throughout the Commonwealth, with priority given to high-risk areas, for the voluntary screening and diagnosis of at-risk persons. Such programs shall systematically test for elevated lead blood levels in all at-risk persons seventy-two (72) months of age and younger and shall include an outreach program if necessary. Priority shall be given to at-risk persons who are one (1) year of age through three (3) years of age. Such programs shall not apply to those persons having religious objections to such testing. Such testing shall be made by such means and at such intervals as the secretary shall by regulation determine may be medically necessary and proper.
  3. The secretary shall be responsible for providing follow-up screening and diagnostic programs for those persons who were previously diagnosed and treated for lead poisoning or were previously diagnosed as having an elevated lead blood level. The frequency with which follow-up shall be performed shall be determined by the secretary.

History. Enact. Acts 1974, ch. 20, § 4, effective June 21, 1974; 2006, ch. 180, § 5, effective July 12, 2006.

211.904. Educational programs.

The secretary shall establish an educational program to inform parents, teachers, personnel of human resource agencies, owners of dwellings and dwelling units, health service personnel and the general public, of the dangers, frequency, and sources of lead poisoning and the methods of preventing such poisoning.

History. Enact. Acts 1974, ch. 20, § 5, effective June 21, 1974.

211.905. Inspection of dwelling or dwelling unit of occupant with confirmed elevated lead blood level — Procedure — Duties of cabinet — Effect.

  1. When notified that an occupant of a dwelling or dwelling unit is a child seventy-two (72) months of age or younger found to have a confirmed elevated blood level, an authorized representative of the cabinet shall inspect the dwelling and dwelling unit or other places the child routinely spends more than six (6) hours per week, at reasonable times, for the purpose of ascertaining the existence of lead-based hazards. The representative of the cabinet shall present proper credentials to the owner or occupant of the dwelling or dwelling unit prior to inspection of the premises. Such representative may remove samples necessary for laboratory analysis, in the determination of the presence of lead-based hazards in the designated dwelling or dwelling unit.
  2. Upon determination by the cabinet that there are lead-based substances in or upon any dwelling or dwelling unit which may be hazardous to children, or upon receipt of confirmation that an occupant has an elevated blood lead level as set out in regulations promulgated by the secretary, the cabinet shall:
    1. In the event that children seventy-two (72) months of age or younger reside in the premises, notify the owner and occupant that lead-based hazards are present on the surfaces of the dwelling or dwelling unit and may constitute a hazard to the health of children;
    2. Inform the local health officers of the results of such determination and provide suitable recommendations for elimination of the problem areas;
    3. Notify the owner of the dwelling or dwelling unit, in writing, advising of the existence of these lead-based hazards with instructions that these lead-based hazards, if accessible to children under the age of seventy-two (72) months, shall be removed, replaced, or securely and permanently covered within a time period not to exceed sixty (60) days and in a manner prescribed by the cabinet.
  3. The removal of the lead-based hazards from the dwelling or dwelling unit shall be accomplished by the owner in a manner which will not endanger the health or well-being of its occupants, and result in the safe removal from the premises, and the safe disposition, of flakes, chips, debris, and other potentially harmful materials.
  4. In the event that the owner of the dwelling or dwelling unit does not remove, replace, or securely and permanently cover the lead-based substances designated as hazardous within sixty (60) days, the cabinet shall cause to be posted upon the dwelling or dwelling unit identified as containing lead-based hazards, a notice of the existence of such hazards and the declaration that the dwelling or dwelling unit is unfit for human habitation for those persons under seventy-two (72) months of age. The dwelling or dwelling unit shall remain posted until the owner has complied with the orders of the cabinet.
  5. Determination by the cabinet that a child under seventy-two (72) months of age is in immediate danger from the presence of lead-based hazards in or upon a dwelling or dwelling unit shall be cause for release from a rental agreement without prejudice to the occupant.

History. Enact. Acts 1974, ch. 20, § 6(1) to (5), effective June 21, 1974; 2006, ch. 180, § 6, effective July 12, 2006.

Lead-Hazard Detection and Abatement

211.9061. Definitions for KRS 211.9061 to 211.9079 and KRS 211.990.

For the purposes of KRS 211.9061 to 211.9079 and KRS 211.990 :

  1. “Child-occupied facility” means a building, or portion of a building constructed prior to 1978 other than target housing in which a child, six (6) years of age or under, spends at least three (3) hours a day, two (2) days a week, including but not limited to, child day-care facilities, family child-care homes, pre-schools, and kindergarten classrooms;
  2. “Department” means the Department for Public Health;
  3. “Lead-hazard detection” means an inspection or risk assessment conducted to determine the existence, nature, severity, and location of lead hazards;
    1. “Lead-hazard abatement” means a set of measures designed and intended to permanently eliminate lead hazards in a manner which will protect children and adults from the risk of lead poisoning, including the following: (4) (a) “Lead-hazard abatement” means a set of measures designed and intended to permanently eliminate lead hazards in a manner which will protect children and adults from the risk of lead poisoning, including the following:
      1. Removal, encapsulation, or enclosure of lead hazards;
      2. Replacement of lead-contaminated surfaces or fixtures;
      3. Removal or covering of lead-contaminated soil; and
      4. Site preparation and cleanup, preparation of debris for disposal, and other post-abatement activities which are conducted at the site and are associated with the abatement.
    2. “Lead-hazard abatement” does not include the following:
      1. Renovation, remodeling, or landscaping activities which are not designed to permanently eliminate lead hazards, but are designed to repair, restore, or remodel a structure or a dwelling, even though these activities may incidentally result in a reduction or elimination of lead hazards; or
      2. Interim controls, operations and maintenance activities, or other measures or activities designed to temporarily, but not permanently, reduce lead hazards; and
  4. “Target housing” means any housing constructed prior to 1978, except housing for the elderly or persons with disabilities in which no child less than six (6) years of age resides or is expected to reside.

History. Enact. Acts 1996, ch. 168, § 1, effective July 15, 1996; 1998, ch. 426, § 331, effective July 15, 1998.

211.9063. Certification of those performing lead-hazard detection or abatement services — Administrative regulations — Decision on application — Quality assurance inspector.

  1. Beginning July 1, 1997, all persons who perform or offer to perform lead-hazard detection or lead-hazard abatement services in target housing or child-occupied facilities shall be certified pursuant to this section.
  2. The Department for Public Health shall create and administer a certification program for persons who perform or offer to perform lead-hazard detection or lead-hazard abatement services.
  3. No later than October 1, 1996, the department shall promulgate administrative regulations pursuant to KRS Chapter 13A to establish the training and testing requirements for certification. The training and testing requirements and procedures established by the department shall be sufficient to reflect the ability of the person applying for certification to provide services in accordance with local, state, and federal laws and regulations that are applicable to the duties for which the person is requesting certification.
  4. No later than October 1, 1996, the department shall promulgate administrative regulations pursuant to KRS Chapter 13A to provide for the enforcement of the certification program. The department may revoke, suspend, or restrict the certificate of any certificate holder and may refuse to issue or renew a certificate to a person who fails to comply with certification requirements. The department may also impose sanctions for any of the following reasons:
    1. Fraud or deceit in obtaining certification;
    2. Transfer of the authority granted by the certificate to another person; or
    3. Negligence or incompetence in compliance with applicable state and federal laws, regulations, and established standards of practice.
  5. No person certified pursuant to this section shall perform lead-hazard abatement services in target housing or child-occupied facilities, as defined in KRS 211.9061 , without having obtained a permit to perform the services. An application for the permit shall be made to the department upon forms provided by the department, and shall be accompanied by the required fee established pursuant to KRS 211.9067 . The permit fee shall be sufficient to fully cover the cost of the quality assurance inspection conducted to determine compliance with the certification requirements of this section, and the performance standards established pursuant to KRS 211.9075 .
  6. The department shall consider and render a decision in response to a permit application submitted pursuant to subsection (5) of this section no later than seven (7) calendar days after the application and the applicable fee are received by the department. The quality assurance inspection of a lead-hazard abatement site shall occur no later than seven (7) working days after the department receives notification from the permit holder that the lead-abatement at the site has been completed. If the department does not meet the seven (7) day deadline, the department shall allow the permit holder to begin construction or other renovation activities upon completion of the abatement service. This approval shall not serve as a substitute for the final inspection required to determine compliance pursuant to subsection (5) of this section.

History. Enact. Acts 1996, ch. 168, § 2, effective July 15, 1996; 1998, ch. 426, § 332, effective July 15, 1998.

211.9065. Accreditation for training programs providing education for certification in lead-hazard detection or abatement services — Administrative regulations.

  1. Beginning January 1, 1997, all training programs providing or offering to provide an educational program designed to prepare persons for certification in lead-hazard detection or lead-hazard abatement services, pursuant to KRS 211.9063 , shall be accredited pursuant to this section.
  2. The Department for Public Health shall create and administer an accreditation program for training programs providing or offering to provide an educational program designed to prepare persons for certification in lead-hazard detection or lead-hazard abatement services.
  3. No later than October 1, 1996, the department shall promulgate administrative regulations pursuant to KRS Chapter 13A to establish:
    1. The requirements for accreditation of training providers;
    2. The minimum requirements for curriculum content;
    3. The number of training hours to be completed by the trainee;
    4. The minimum amount of the training which requires the trainee to practice or otherwise apply lead-hazard detection or abatement skills or techniques in a hands-on manner; and
    5. The competency and proficiency to be demonstrated by the trainee in order to successfully complete the training.
  4. No later than October 1, 1996, the department shall promulgate administrative regulations pursuant to KRS Chapter 13A to provide for enforcement of the quality control standards for accredited training programs. The department may revoke, suspend, or restrict the certificate of accreditation for training providers and may refuse to issue or renew a certificate of accreditation to a training provider which fails to comply with accreditation requirements.

History. Enact. Acts 1996, ch. 168, § 3, effective July 15, 1996; 1998, ch. 426, § 333, effective July 15, 1998.

211.9067. Schedule of fees.

The department shall promulgate administrative regulations pursuant to KRS Chapter 13A to establish a schedule of fees for permits required pursuant to KRS 211.9063 , and for the functions performed by the department for the certification and accreditation programs established pursuant to KRS 211.9063 , 211.9065 , and 211.9069 . The fees shall be sufficient to fully cover the department’s cost of the service performed but shall not exceed the cost of the service performed. In determining the amount of the permit fee required for lead-abatement services performed by employees of a local government, the department shall take into consideration and adjust the fee to reflect the number of abatement jobs annually performed by that local government. Fees payable to the department under the provisions of this section shall be paid into the State Treasury and credited to a trust and agency account to be used by the department in carrying out the provisions of KRS 211.9061 to 211.9079 and KRS 211.990 . No part of this fund shall revert to the general fund of the Commonwealth.

History. Enact. Acts 1996, ch. 168, § 4, effective July 15, 1996.

211.9069. Equivalent certificate and equivalent accreditation — Conditions of issuance.

  1. Any person who has been issued a certificate in another state which has certification, educational, and experience requirements substantially equal to or greater than those of this state, pursuant to KRS 211.9063 , and which grants equal certification privileges to persons certified in this state, may be issued an equivalent certificate in this state upon terms and conditions determined by the department.
  2. Any training provider which has been issued a certificate of accreditation in another state which has certification, educational, and experience requirements substantially equal to or greater than those of this state, pursuant to KRS 211.9065 , and which grants equal accreditation privileges to training providers accredited in this state, may be issued an equivalent accreditation in this state upon terms and conditions determined by the department.
  3. The department may consult with other states in order to facilitate reciprocity of certification and accreditation of lead-hazard detection and abatement services among the states.

History. Enact. Acts 1996, ch. 168, § 5, effective July 15, 1996.

211.9071. Compliance with federal rules and regulations.

All persons certified pursuant to KRS 211.9063 or 211.9069 , all training programs accredited pursuant to KRS 211.9065 or 211.9069 , and the department shall comply with the applicable rules and regulations of the United States Department of Housing and Urban Development, the United States Occupational Safety and Health Administration, the United States Environmental Protection Agency, and other federal agencies with jurisdiction over issues concerning lead hazards.

History. Enact. Acts 1996, ch. 168, § 6, effective July 15, 1996.

211.9075. Standards for performing lead-hazard detection or abatement procedures — Compliance with administrative regulations.

  1. No later than October 1, 1996, the department shall promulgate administrative regulations to establish the standards for performing lead-hazard detection or lead-hazard abatement procedures in target housing or child-occupied facilities, taking into account reliability, effectiveness, and safety.
  2. Any activity involving lead-hazard detection or lead-hazard abatement procedures in target housing or child-occupied facilities shall comply with administrative regulations promulgated by the department and shall use certified personnel.

History. Enact. Acts 1996, ch. 168, § 7, effective July 15, 1996.

211.9079. Public education and awareness campaign.

The department may, within budget limitations, conduct a public education and awareness campaign on the nature and consequences of lead hazards and on the need for lead-hazard detection and abatement procedures to be conducted under careful supervision and by certified personnel in order to assure public safety.

History. Enact. Acts 1996, ch. 168, § 8, effective July 15, 1996.

Radon Measurement, Mitigation, Laboratory Analysis, and Quality Control

211.9101. Definitions for KRS 211.9101 to 211.9135.

As used in KRS 211.9101 to 211.9135 , unless the context requires otherwise:

  1. “Alter” means to change or modify a building or building design, or to revise, rather than repair, a mitigation system or mitigation system design;
  2. “Analytical analysis” means the act of analyzing the radon or radon progeny concentrations with active measurement devices;
  3. “Building” means any structure used or intended to be used for supporting or sheltering any use or occupancy;
  4. “Cabinet” means Cabinet for Health and Family Services;
  5. “Certified” means meeting the certification requirements of a proficiency program for radon measurement, radon mitigation, or radon laboratory analysis;
  6. “Commercial building” means any building other than a residential building, including those buildings intended for public purposes;
  7. “Commissioner” means the commissioner of the Department for Public Health;
  8. “Committee” means the Kentucky Radon Program Advisory Committee;
  9. “Compensation” means something of value given or received in exchange for radon measurement, radon mitigation, or laboratory analysis;
  10. “Contractor” means a person or business entity that provides goods or services to another person under the terms specified in a contract or verbal agreement, and who is not an agent or employee of that person;
  11. “Direct supervision” means constant onsite supervision by a certified person;
  12. “General supervision” means intermittent onsite supervision by a certified person who accepts responsibility for ensuring compliance by his or her employees or subcontractors with all applicable requirements under KRS 211.9101 to 211.9135 ;
  13. “Government agency” means the Commonwealth of Kentucky, a state agency, a political subdivision, or any entity of local government;
  14. “Laboratory analysis” means the act of analyzing the radon or radon progeny concentrations with passive measurement devices, or the act of calibrating radon or radon progeny measurement devices, or the act of exposing radon or radon progeny devices to controlled concentrations of radon or radon progeny;
  15. “Measurement” means the act of testing the air, water, or soil using an active or passive measurement device for the presence of radon or radon progeny in the indoor environment of a building;
  16. “Measurement device” means any active or passive device approved by a proficiency program and used for the measurement of radon or radon progeny in air, water, or soil in the indoor environment of a building;
  17. “Measurement contractor” means a person certified by a proficiency program who provides radon measurement for compensation and who meets the requirements of KRS 211.9109 ;
  18. “Mitigation” means the act of installing, repairing, or altering an active or passive system, for the purpose in whole or in part of reducing the concentration of radon or radon progeny in the indoor environment of a building;
  19. “Mitigation contractor” means a person certified by a proficiency program who provides radon mitigation for compensation and who meets the requirements of KRS 211.9111 ;
  20. “Mitigation system” means any active or passive system designed to reduce radon concentrations in the indoor environment of a building;
  21. “Person” has the same meaning as in KRS 446.010 ;
  22. “Proficiency program” means either the National Radon Proficiency Program or the National Radon Safety Board;
  23. “Radon” means a naturally occurring radioactive element that exists as a colorless, odorless, and tasteless inert gas;
  24. “Radon decay products” means the four (4) short-lived radioactive elements polonium (Po-218), lead (Pb-214), bismuth (Bi-214), and polonium (Po-214) which exist as solids and immediately follow radon (Rn-222) in the decay chain;
  25. “Radon laboratory” means a business entity certified by a proficiency program that provides laboratory analysis for compensation and meets the requirements of  KRS 211.9115 ;
  26. “Radon progeny” means any combination of the radioactive decay products of radon;
  27. “Registrant” means a person or business entity registered with the cabinet as a measurement contractor, mitigation contractor, or radon laboratory;
  28. “Research” means cabinet-approved scientific investigation that includes radon measurement, radon mitigation, or laboratory analysis;
  29. “Residential building” means detached one (1) to four (4) family dwellings not more than three (3) stories in height where occupants are primarily permanent in nature; and
  30. “Standard operating procedure” means a written document established by an accredited American National Standards Institute development organization that describes in detail commonly accepted methods for the performance of certain tasks associated with radon measurement, mitigation, or laboratory analysis.

History. Enact. Acts 2011, ch. 74, § 1, effective June 8, 2011; 2019 ch. 159, § 1, effective June 27, 2019.

211.9103. Creation of Kentucky Radon Program Advisory Committee — Qualifications of members — Terms — Vacancies — Quorum — Officers.

  1. The Kentucky Radon Program Advisory Committee is hereby created and shall be attached to the Cabinet for Health and Family Services for administrative purposes. Each member of the committee shall be a citizen and resident of the Commonwealth of Kentucky. The committee shall consist of nine (9) members as follows:
    1. Four (4) members shall be either a radon measurement contractor, a radon mitigation contractor, or a person associated with a radon laboratory conducting laboratory analysis and shall be appointed by the Governor from a list of six (6) names submitted to the Governor by the Kentucky Association of Radon Professionals;
    2. One (1) member shall be a representative of the home building industry and shall be appointed by the Governor from a list of three (3) names submitted to the Governor by the Home Builders Association of Kentucky;
    3. One (1) member shall be a real estate salesperson or broker licensed under KRS Chapter 324 and shall be appointed by the Governor from a list of three (3) names submitted to the Governor by the Kentucky Association of Realtors;
    4. One (1) member shall be a representative of a public health organization and shall be appointed by the Governor from a list of three (3) names submitted to the Governor by the Kentucky Cancer Consortium;
    5. One (1) member shall be the commissioner of the Department for Public Health, Cabinet for Health and Family Services, or his or her designee; and
    6. One (1) member shall be a citizen at large appointed by the Governor who shall represent the public and shall not be associated with or financially interested in the practice of radon measurement, mitigation, or laboratory analysis.
    1. To be eligible for initial appointment as a member of the committee under subsection (1)(a) of this section, a person shall have been actively engaged in the practice of radon measurement, mitigation, or laboratory analysis for not less than three (3) years immediately preceding the date of appointment to the committee. (2) (a) To be eligible for initial appointment as a member of the committee under subsection (1)(a) of this section, a person shall have been actively engaged in the practice of radon measurement, mitigation, or laboratory analysis for not less than three (3) years immediately preceding the date of appointment to the committee.
    2. Upon expiration of the initial appointments, to be eligible for appointment as a member of the committee under subsection (1)(a) of this section, a person shall have been actively engaged in the practice of radon measurement, mitigation, or laboratory analysis for not less than three (3) years immediately preceding the date of the appointment to the committee and hold a valid certification as a radon measurement contractor or radon mitigation contractor, or be associated with a radon laboratory with a valid certification.
  2. Except for the commissioner, who shall serve as long as he or she holds his or her appointment as commissioner, the Governor shall initially appoint two (2) members for a term of four (4) years, two (2) members for a term of three (3) years, two (2) members for a term of two (2) years, and two (2) members for a term of one (1) year. All appointments shall expire on June 30 of the last year of the terms. Thereafter, members shall be appointed for terms of four (4) years. No person shall serve more than two (2) consecutive terms. Members shall serve until their successors are appointed.
  3. Upon recommendation of the committee, the Governor may remove any member of the committee appointed by the Governor for poor attendance, neglect of duty, misfeasance, or malfeasance in office.
  4. Vacancies in the membership of the committee for any cause shall be filled by appointment by the Governor for the balance of the unexpired term.
  5. A majority of the committee shall constitute a quorum to do business. The committee shall meet at least once each calendar quarter in a location designated by the chairperson. The committee may meet upon special call by the chairperson or a majority of the committee.
  6. The committee shall elect a chairperson and a vice chairperson. The chairperson shall preside at all meetings at which the chairperson is present. The vice chairperson shall preside at all meetings in the absence of the chairperson.
  7. If the chairperson and vice chairperson are absent from a meeting of the committee when a quorum exists, the members who are present may elect a presiding officer who shall serve as acting chairperson until the conclusion of the meeting or until the arrival of the chairperson or vice chairperson.

History. Enact. Acts 2011, ch. 74, § 2, effective June 8, 2011.

211.9105. Powers and responsibilities of Radon Program Advisory Committee.

The committee shall:

  1. Advise the cabinet with the review, development, and maintenance of standard operating procedures for radon measurement, radon mitigation, laboratory analysis, and quality control;
  2. Advise the cabinet with preparing an annual budget for the use of moneys received by the cabinet from the collection of fees and fines, receipt of grants, and all other radon-related activities;
  3. Review and comment on relevant administrative regulations that are promulgated pursuant to KRS 211.9101 to 211.9135 and make recommendations to and otherwise advise the cabinet on these matters;
  4. Record minutes of committee meetings and proceedings which shall be documented and maintained for the committee by the cabinet in a public forum;
  5. Make recommendations to the cabinet provided that the final determination rests with the cabinet;
  6. Hold the first meeting of the committee no later than October 1, 2011, to be convened by the commissioner; and
  7. Perform any other duties and responsibilities relating to the topic of radon that may be assigned by the cabinet.

History. Enact. Acts 2011, ch. 74, § 3, effective June 8, 2011; 2019 ch. 159, § 2, effective June 27, 2019.

211.9107. Prohibition against conduct of radon measurement, mitigation, or laboratory analysis without certification — Exceptions.

No person or business entity shall conduct radon measurement, mitigation, or laboratory analysis in this Commonwealth after January 1, 2013, without the appropriate certification pursuant to KRS 211.9101 to 211.9135 . No person or business entity shall advertise or claim to be a “certified measurement contractor,” “certified mitigation contractor,” or “certified radon laboratory,” unless certified pursuant to KRS 211.9101 to 211.9135 . Certification requirements under KRS 211.9101 to 211.9135 shall apply to a radon measurement contractor, radon mitigation contractor, or radon laboratory, but shall not apply to:

  1. A person performing measurement or mitigation on a single-family residential building that he or she owns and occupies;
  2. A person performing measurement on a residential or commercial building that he or she owns;
  3. A person performing measurement who assists, and is under the general supervision of, a measurement contractor;
  4. A person performing mitigation who assists, and is under the direct supervision of, a mitigation contractor;
  5. An agent of the federal, state, or local government agency acting within an official capacity;
  6. A person performing measurement or mitigation as part of a scientific research project approved by the cabinet;
  7. A retail store or any other organization that sells or distributes radon measurement devices and is not engaged in a relationship with the client for other services, such as home inspection or real estate brokerage, and that does not conduct measurement, mitigation, or laboratory analysis;
  8. A person performing measurement or mitigation as part of radon training approved by a proficiency program; or
  9. A building contractor installing vent pipes during the construction of a commercial building or home.

History. Enact. Acts 2011, ch. 74, § 4, effective June 8, 2011; 2016 ch. 28, § 1, effective July 15, 2016; 2019 ch. 159, § 3, effective June 27, 2019.

211.9109. Registration as radon measurement contractor — Renewal of registration certificate — Duties of measurement contractor.

  1. The cabinet shall issue a radon measurement contractor registration certificate to any person certified for measurement who:
    1. Completes a registration process prescribed by the cabinet through promulgation of an administrative regulation; and
    2. Furnishes evidence of a general liability insurance policy that satisfies the requirements of KRS 211.9113 .
  2. The cabinet shall renew the radon measurement contractor registration certificate of any person who:
    1. Presents proof of compliance with a cabinet-approved proficiency program; and
    2. Who furnishes evidence of a general liability insurance policy that satisfies the requirements of KRS 211.9113 ;
  3. A measurement contractor shall:
    1. Ensure all measurements are conducted in accordance with the applicable standard operating procedures;
    2. Maintain a quality control program plan in accordance with the standard operating procedures for measurement quality assurance and control;
    3. Ensure all measurements are conducted under the general supervision of a measurement contractor;
    4. Use or sell only measurement devices approved by the proficiency program that certifies the person; and
    5. Ensure all laboratory analysis is procured through a radon laboratory.

History. Enact. Acts 2011, ch. 74, § 5, effective June 8, 2011; 2013, ch. 68, § 2, effective June 25, 2013; 2019 ch. 159, § 4, effective June 27, 2019.

211.9111. Registration as mitigation contractor — Renewal of registration certificate — Duties of mitigation contractor.

  1. The cabinet shall issue a mitigation contractor registration certificate to any person certified for mitigation who:
    1. Completes a registration process prescribed by the cabinet through promulgation of an administrative regulation; and
    2. Furnishes evidence of a general liability insurance policy that satisfies the requirements of KRS 211.9113 .
  2. The cabinet shall renew the mitigation contractor registration certificate of any person who:
    1. Presents proof of compliance with a cabinet-approved proficiency program; and
    2. Who furnishes evidence of a general liability insurance policy that satisfies the requirements of KRS 211.9113 .
  3. A mitigation contractor shall:
    1. Ensure all mitigations are conducted in accordance with the applicable mitigation standard operating procedures;
    2. Maintain a quality control program plan in accordance with the applicable standard operating procedures for mitigation quality assurance and control;
    3. Ensure all mitigation is conducted under the direct supervision of a mitigation contractor;
    4. Ensure all post-mitigation measurement is conducted by a measurement contractor; and
    5. Ensure all radon mitigation systems repaired or altered on or after January 1, 2013, meet the applicable mitigation standard operating procedures.

History. Enact. Acts 2011, ch. 74, § 6, effective June 8, 2011; 2013, ch. 68, § 3, effective June 25, 2013; 2019 ch. 159, § 5, effective June 27, 2019.

211.9113. Insurance policy required for mitigation and measurement contractors.

Each mitigation or measurement contractor shall maintain an insurance policy that:

  1. Is issued by an insurance company or other legal entity permitted to transact insurance business in the Commonwealth of Kentucky;
  2. Provides for general liability coverage for measurement contractors in an amount of at least two hundred fifty thousand dollars ($250,000) that is maintained in effect at all times during the registration period;
  3. Provides for general liability coverage for mitigation contractors and radon laboratories in an amount of at least five hundred thousand dollars ($500,000) that is maintained in effect at all times during the registration period;
  4. Lists the cabinet as a certificate holder of any insurance policy issued under subsection (1) of this section; and
  5. States that cancellation or nonrenewal of the underlying liability insurance policy is not effective until the cabinet receives at least ten (10) days’ written notice of the cancellation or nonrenewal.

History. Enact. Acts 2011, ch. 74, § 7, effective June 8, 2011; 2013, ch. 68, § 4, effective June 25, 2013; 2019 ch. 159, § 6, effective June 27, 2019.

211.9115. Registration as radon laboratory — Renewal of registration certificate — Requirements for radon laboratory.

  1. The cabinet shall issue a radon laboratory registration certificate to any business entity certified for radon laboratory analysis that completes a registration process prescribed by the cabinet through promulgation of an administrative regulation.
  2. The cabinet shall renew the radon laboratory registration certificate of any business entity that:
    1. Presents proof of compliance with a cabinet-approved proficiency program; and
    2. Who furnishes evidence of a general liability insurance policy that satisfies the requirements of KRS 211.9113 ;
  3. A radon laboratory shall:
    1. Ensure all laboratory analysis is conducted in accordance with the applicable laboratory analysis standard operating procedures; and
    2. Maintain a quality control program plan in accordance with the applicable standard operating procedures for laboratory analysis quality assurance and control.

History. Enact. Acts 2011, ch. 74, § 8, effective June 8, 2011; 2019 ch. 159, § 7, effective June 27, 2019.

211.9117. Display of certification number — Limitation of activities of persons with dual certifications. [Repealed]

History. Enact. Acts 2011, ch. 74, § 9, effective June 8, 2011; 2013, ch. 68, § 5, effective June 25, 2013; repealed by 2019 ch. 159, § 14, effective June 27, 2019.

211.9119. When business entity may engage in radon measurement, mitigation, or laboratory analysis.

A business entity may engage in radon measurement, mitigation, or laboratory analysis if the owner or an employee associated with the business entity is a measurement or mitigation contractor, or radon laboratory, as applicable.

History. Enact. Acts 2011, ch. 74, § 10, effective June 8, 2011; 2019 ch. 159, § 8, effective June 27, 2019.

211.9121. Biennial registration — Lapse — Duty to report change of information.

  1. A person or business entity seeking biennial registration shall complete the registration process and pay the fee prescribed by the cabinet through the promulgation of administrative regulations.
  2. Registrations not renewed within thirty (30) days after the renewal date shall lapse and may only be reinstated upon the completion of the registration process as prescribed by the cabinet through the promulgation of administrative regulations.
  3. A registrant shall report any change of information submitted during the registration process in writing to the cabinet within ten (10) days of such change taking place. The cabinet shall not be responsible for a registrant not receiving notices, communications, or other correspondence caused by a failure of the registrant to report changes.

History. Enact. Acts 2011, ch. 74, § 11, effective June 8, 2011; 2013, ch. 68, § 6, effective June 25, 2013; 2019 ch. 159, § 9, effective June 27, 2019.

211.9123. State certification by reciprocity. [Repealed]

History. Enact. Acts 2011, ch. 74, § 12, effective June 8, 2011; repealed by 2019 ch. 159, § 14, effective June 27, 2019.

211.9125. Sanctions for misconduct — Cabinet’s powers — Appeals.

  1. Subject to an administrative hearing conducted in accordance with KRS Chapter 13B, the cabinet may revoke, suspend, or restrict the registration of a registrant, refuse to issue or renew registration, reprimand, censure, place on probation, or impose a fine not to exceed five hundred dollars ($500) per occurrence on a certified person or business entity who:
    1. Has been convicted of a felony under the laws of the Commonwealth of any crime that involves theft or dishonesty, or is a sex crime as defined by KRS 17.500 ;
    2. Has had disciplinary action taken against a professional license, certification, registration, or permit held by the person or business entity seeking registration;
    3. Engaged in fraud or deceit in obtaining certification or registration;
    4. Attempts to transfer the authority granted by the registration to another person or business entity;
    5. Disregards or violates the building codes, electrical codes, or related laws of this Commonwealth or ordinances of any city, county, urban-county government, consolidated local government, charter county government, or unified local government;
    6. Aids or abets any person attempting to evade the provisions of KRS 211.9101 to 211.9135 or the administrative regulations promulgated thereunder by the cabinet;
    7. Uses unfair or deceptive trade practices; or
    8. Knowingly violates any of the provisions of KRS 211.9101 to 211.9135 or any administrative regulation promulgated thereunder by the cabinet.
  2. If an application for registration or renewal of registration is denied, the person or business entity seeking registration shall not conduct radon measurement, mitigation, or laboratory analysis within the Commonwealth of Kentucky.
  3. Notwithstanding the existence or pursuit of any other civil or criminal remedy, the cabinet may institute proceedings in the Circuit Court of the county where the person resides or the business entity is located for an order enjoining the person or business entity from engaging or attempting to engage in activities that violate any provisions of KRS 211.9101 to 211.9135 or any administrative regulation promulgated thereunder by the cabinet.
  4. Any final order of the cabinet may be appealed to the Circuit Court of the county in which the person resides or the business entity is located after a written decision is rendered in accordance with KRS Chapter 13B.

History. Enact. Acts 2011, ch. 74, § 13, effective June 8, 2011; 2017 ch. 158, § 37, effective June 29, 2017; 2019 ch. 159, § 10, effective June 27, 2019.

211.9127. Continuing education requirements for certified persons. [Repealed]

History. Enact. Acts 2011, ch. 74, § 14, effective June 8, 2011; repealed by 2019 ch. 159, § 14, effective June 27, 2019.

211.9129. Cabinet’s powers to examine, inspect, and test — Prohibition upon interfering with inspection.

  1. The cabinet may examine records of mitigation contractors, measurement contractors, and radon laboratories, including but not limited to conducting inspections of mitigation system installations and measurement locations in order to ensure that radon measurement, mitigation, and laboratory analysis are conducted in accordance with the applicable standard operating procedures.
  2. The cabinet may test any equipment used for measurement, mitigation, or laboratory analysis or photograph or sketch any portion of a site, building, or equipment involved in measurement, mitigation, or laboratory analysis.
  3. No person shall use or continue to use, or permit the use or continued use of, any radon mitigation system if an agent or inspector of the cabinet finds that the radon mitigation system was not constructed, installed, or altered in accordance with the applicable mitigation standard operating procedures.
  4. For purposes of enforcing KRS 211.9101 to 211.9135 or any administrative regulation promulgated by the cabinet pertaining to radon measurement, mitigation, or laboratory analysis, an agent or inspector of the cabinet shall have the power to enter upon premises at all reasonable times to make an inspection, question all persons, and require the production of radon mitigation system plans, sketches, diagnostic information, and other evidence.
  5. Agents and inspectors of the cabinet shall be empowered to issue a stop order to any owner, agent, or occupant of real property requiring that the radon mitigation system thereon cease operation if that system has been found to be in violation of KRS 211.9101 to 211.9135 or any administrative regulation promulgated thereunder by the cabinet.
  6. A person shall not interfere with an inspection conducted by an agent or inspector of the cabinet.

History. Enact. Acts 2011, ch. 74, § 15, effective June 8, 2011; 2019 ch. 159, § 11, effective June 27, 2019.

211.9131. Duty to report noncompliance with KRS 211.9101 to 211.9135 — Location and retention of required records.

  1. Any certified person or business entity shall report to the cabinet the discovery of any apparent noncompliance with any provision of KRS 211.9101 to 211.9135 or any administrative regulation promulgated thereunder by the cabinet pertaining to radon measurement, mitigation, or laboratory analysis.
  2. Records required by this chapter or administrative regulations promulgated under KRS 211.9101 to 211.9135 , including but not limited to records of radon measurement, mitigation, quality control program plans, calibration certifications, laboratory analysis activities, worker health and safety plans, and equipment repairs shall be retained by registrants, as applicable, for a minimum period of five (5) years or the length of time of any warranty or guarantee, whichever is greater. Records obtained by the cabinet are exempt from the disclosure requirements of KRS 61.870 to 61.884 , except that the cabinet shall make the records available upon request:
    1. To the owner or occupant of a building; and
    2. To the public aggregated at the zip code level without identifying individual homeowners or individual property locations.
  3. Any measurement or mitigation contractor applying for registration or renewal of registration shall specify, for approval by the cabinet, the location where records required under this section shall be maintained for inspection by the cabinet. This location shall be within the Commonwealth of Kentucky.

History. Enact. Acts 2011, ch. 74, § 16, effective June 8, 2011; 2019 ch. 159, § 12, effective June 27, 2019.

211.9133. Radon mitigation and control fund.

  1. There is created the radon mitigation and control fund as a separate trust and agency fund in the State Treasury, to be administered by the cabinet. All fees, fines, and other moneys received by the cabinet pursuant to KRS 211.9101 to 211.9135 shall be deposited in the fund and shall be used for the implementation of KRS 211.9101 to 211.9135 , and are hereby appropriated for those purposes.
  2. Notwithstanding KRS 45.229 , any moneys remaining in the fund at the close of the fiscal year shall not lapse but shall be carried forward to the next fiscal year.
  3. Any interest earnings of the fund shall become part of the fund and shall not lapse.

History. Enact. Acts 2011, ch. 74, § 17, effective June 8, 2011.

211.9135. Cabinet’s role as radon control agency for Commonwealth.

  1. The Cabinet for Health and Family Services shall be the regulatory agency for the control of radon in the Commonwealth of Kentucky.
  2. The cabinet shall develop and conduct programs for evaluation and control of activities related to radon, including laboratory analyses, mitigation, and measurements.
  3. The cabinet shall:
    1. Promulgate administrative regulations in accordance with KRS Chapter 13A to administer, coordinate, and enforce KRS 211.9101 to 211.9135 , including the establishment of fees not to exceed costs to the cabinet;
    2. Maintain a public list of all certified persons or business entities registered by the cabinet;
    3. Issue a registration certificate to certified persons or business entities registered by the cabinet;
    4. Promote the control of radon in the Commonwealth;
    5. Design and administer, or participate in the design and administration of educational and research programs to ensure citizens of the Commonwealth are informed about the health risks associated with radon;
    6. Appoint personnel to perform duties and fix their compensation;
    7. Issue subpoenas, administer oaths, examine witnesses, investigate allegations of wrongdoing, and conduct administrative hearings in accordance with KRS Chapter 13B to enforce KRS 211.9101 to 211.9135 ; and
    8. Collect or receive all fees, fines, and other moneys owed pursuant to KRS 211.9101 to 211.9135, and deposit all those moneys into the radon mitigation and control fund established by KRS 211.9133 .

History. Enact. Acts 1992, ch. 328, § 1, effective July 14, 1992; 1998, ch. 426, § 322, effective July 15, 1998; 2005, ch. 99, § 381, effective June 20, 2005; renum. 2011, ch. 74, § 18, effective June 8, 2011; 2019 ch. 159, § 13, effective June 27, 2019.

Compiler’s Notes.

This section was formerly compiled as KRS 211.855 and was renumbered as this section effective June 8, 2011.

Research References and Practice Aids

Northern Kentucky Law Review.

Reynolds, Who’s Going to Regulate NORM?, 22 N. Ky. L. Rev. 5 (1995).

Confinement Facilities Health Act

211.920. Definitions for KRS 211.925 to 211.945.

As used in KRS 211.925 to 211.945 , unless the context otherwise requires:

  1. “Cabinet” shall mean the Cabinet for Health and Family Services.
  2. “State confinement facility” shall mean a penal or correctional facility or juvenile detention or treatment facility operated by or under the supervision of the Commonwealth of Kentucky.
  3. “Public health” and “health” shall mean and include, but shall not be limited to, all environmental, dental, mental, medical, and nutritional aspects of the health of persons confined in a state confinement facility.

History. Enact. Acts 1974, ch. 361, § 2; 1982, ch. 385, § 30, effective January 1, 1983; 1998, ch. 426, § 334, effective July 15, 1998; 2005, ch. 99, § 391, effective June 20, 2005.

Research References and Practice Aids

Kentucky Law Journal.

Notes, An Analysis of the Question of County Jail Reform in Kentucky, 65 Ky. L.J. 130 (1976-77).

211.925. Powers and duties of cabinet.

In addition to all other powers and duties vested in it by law, the cabinet shall have the authority, power, and duty to:

  1. Adopt, modify, and repeal regulations and standards relating to the public health or health aspects of the operation of state confinement facilities, and exercise general supervision over the administration of KRS 211.920 to 211.945 and assist in the enforcement of all regulations and standards promulgated pursuant to it;
  2. Collect, evaluate, and disseminate information from state confinement facilities as it relates to the public health of the people of the Commonwealth;
  3. Develop comprehensive plans for the elimination of conditions in state confinement facilities which adversely affect the public health or the health of those persons confined or likely to be confined in any state confinement facility;
  4. Enter upon the premises and inspect any state confinement facility for the purpose of determining the extent of compliance with KRS 211.920 to 211.945 and investigating the effect of the operation of state confinement facilities upon the public health or the health of those persons confined or likely to be confined in any state confinement facility;
  5. Advise, consult, and cooperate with other agencies of the Commonwealth, including the Department of Corrections, other jurisdictions, the federal government, interstate and interlocal agencies, and local governments regarding the effects of the operation of confinement facilities upon the public health;
  6. Accept, receive, and administer grants or other funds or gifts from public and private agencies for the purpose of implementing KRS 211.920 to 211.945 .

History. Enact. Acts 1974, ch. 361, § 4; 1982, ch. 385, § 31, effective January 1, 1983; 1992, ch. 211, § 76, effective July 14, 1992.

Research References and Practice Aids

Kentucky Law Journal.

Notes, An Analysis of the Question of County Jail Reform in Kentucky, 65 Ky. L.J. 130 (1976-77).

211.927. Cooperation with Department of Corrections — Assistance in training.

The cabinet shall cooperate with the Department of Corrections in the development of regulations concerning the public health or health aspects of jails as defined in KRS 441.005 and shall assist in the training of jail inspectors employed by the Department of Corrections.

History. Enact. Acts 1982, ch. 385, § 35, effective July 1, 1982; 1992, ch. 211, § 77, effective July 14, 1992.

Legislative Research Commission Note.

We have been advised by the Legislative Research Commission staff person assigned to the drafting and review of 1982 Acts Chapter 385, that due to a clerical error, two different effective dates were included in Section 53 of this Act, both of which were applicable to this section, and that the correct date is July 1, 1982.

211.930. Prohibition.

No person responsible for the supervision or maintenance of a state confinement facility shall knowingly cause or permit such facility to be operated in violation of rules, regulations, or standards promulgated by the cabinet pursuant to KRS 211.920 to 211.945 .

History. Enact. Acts 1974, ch. 361, § 4; 1982, ch. 385, § 32, effective January 1, 1983.

Research References and Practice Aids

Kentucky Law Journal.

Notes, An Analysis of the Question of County Jail Reform in Kentucky, 65 Ky. L.J. 130 (1976-77).

211.935. Inspection of facilities — Action to correct dangerous condition.

  1. If, upon the inspection of a state confinement facility, the cabinet finds that a condition exists which endangers the health of those confined or likely to be confined in the facility, or the public health of the citizens of the Commonwealth of Kentucky, the cabinet shall advise the supervising and maintaining authorities, and shall enter the appropriate order to correct that condition. The supervision and maintenance authorities shall insure that those persons confined in a facility are notified of the findings.
  2. In addition to the penalties provided by KRS 211.990(2), the cabinet may institute injunctive proceedings in Franklin Circuit Court to enforce any order given pursuant to subsection (1) of this section, and for which appropriate corrective action has not been taken.

History. Enact. Acts 1974, ch. 361, § 5; 1982, ch. 385, § 33, effective January 1, 1983; 1990, ch. 497, § 26, effective July 13, 1990.

211.940. Transfer of inmates to facilities which meet rules, regulations and standards — Procedure — Costs. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 361, § 6) was repealed by Acts 1990, ch. 497, § 30, effective July 13, 1990.

211.945. Administration of existing laws.

All laws of the Commonwealth that relate to the supervision and maintenance of state confinement facilities shall be administered in a manner consistent with the provisions of KRS 211.925 to 211.930 and the rules, regulations, and standards promulgated pursuant to it.

History. Enact. Acts 1974, ch. 361, § 7; 1982, ch. 385, § 34, effective January 1, 1983; 1990, ch. 497, § 27, effective July 13, 1990.

Emergency Medical Services

211.950. Definitions for KRS 211.952 to 211.956. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 119, § 1, effective July 15, 1980; 1994, ch. 268, § 1, effective July 15, 1994; 1996, ch. 233, § 5, effective July 15, 1996; 1998, ch. 247, § 2, effective July 15, 1998; 1998, ch. 426, § 335, effective July 15, 1998) was repealed, reenacted and amended as KRS 311.6521 by Acts 2000, ch. 343, § 1, effective July 14, 2000.

211.951. Newborn infant — Implied consent to medical treatment by emergency services provider — Confidentiality of person placing infant with provider.

  1. As used in this section, “newborn infant” means an infant who is medically determined to be less than thirty (30) days old.
  2. Any emergency medical services provider accepting physical custody of a newborn infant in accordance with KRS 405.075 shall have implied consent to any and all appropriate medical treatment.
  3. Notwithstanding any provision of law to the contrary, the identity of a person placing a newborn infant with an emergency medical services provider shall be confidential.
  4. The provisions of subsection (3) of this section shall not apply when indicators of child physical abuse or child neglect are present.

History. Enact. Acts 2002, ch. 303, § 2, effective April 9, 2002; 2016 ch. 122, § 5, effective July 15, 2016.

Research References and Practice Aids

Kentucky Law Journal.

Note: Remembering the Endangered “Child”: Limiting the Definition of “Safe Haven” and Looking Beyond the Safe Haven Law Framework, 98 Ky. L.J. 833 (2009/2010).

211.952. Emergency medical services systems and trauma care systems program — Administrative regulations — Kentucky Emergency Medical Services Council. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 119, § 2, effective July 15, 1980; 1992, ch. 329, § 1, effective July 14, 1992; 1994, ch. 268, § 2, effective July 15, 1994; 1996, ch. 233, § 6, effective July 15, 1996; 1998, ch. 247, § 3, effective July 15, 1998; 1998, ch. 426, § 336, effective July 15, 1998) was repealed, reenacted and amended as KRS 311.6524 by Acts 2000, ch. 343, § 3, effective July 14, 2000.

211.9523. Abolition of category of nonemergency health transportation provider — Conversion to disabled persons carrier or Class II ground ambulance provider.

  1. The category of nonemergency health transportation provider shall be abolished effective December 31, 1996.
  2. A provider licensed as of March 31, 1996, as a nonemergency health transportation provider may apply to convert to either a disabled persons carrier pursuant to KRS 281.6185 or a Class II ground ambulance provider without requiring an additional certificate of need. Prior to licensure or certificate approval, the provider shall meet the respective licensing or certificate requirements.
  3. No later than August 15, 1996, the Cabinet for Human Resources shall notify each nonemergency health transportation provider of the provisions of this section and the procedures necessary to apply for the conversion.
  4. To apply for the conversion provided for in subsection (2) of this section, each nonemergency health transportation provider shall notify the appropriate agency of its intentions within ninety (90) days of July 15, 1996, or cease to act as a nonemergency health transportation provider effective December 31, 1996.

History. Enact. Acts 1996, ch. 233, § 7, effective July 15, 1996.

211.953. Legislative declaration of purpose of KRS 211.9531 and 211.9533. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1998, ch. 247, § 1, effective July 15, 1998) was repealed, reenacted and amended as KRS 311.6525 by Acts 2000, ch. 343, § 4, effective July 14, 2000.

211.9531. Emergency Medical Services for Children Program. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1998, ch. 247, § 4, effective July 15, 1998) was repealed, reenacted and amended as KRS 311.6526 by Acts 2000, ch. 343, § 5, effective July 14, 2000.

211.9533. Emergency Medical Services for Children Advisory Committee. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1998, ch. 247, § 5, effective July 15, 1998) was repealed by Acts 2000, ch. 343, § 27, effective July 14, 2000. For present law, see KRS 311.6526 .

211.9535. Biennial report on EMSC Program. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1998, ch. 247, § 6, effective July 15, 1998) was repealed by Acts 2000, ch. 343, § 27, effective July 14, 2000.

211.954. Matching fund program for local purchase of ambulances and equipment. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 119, § 3, effective July 15, 1980; 1992, ch. 329, § 2, effective July 14, 1992; 1994, ch. 268, § 3, effective July 15, 1994; 1998, ch. 426, § 337, effective July 15, 1998) was repealed, reenacted and amended as KRS 311.6563 by Acts 2000, ch. 343, § 6, effective July 14, 2000.

211.956. Matching fund program for providing trained emergency medical service personnel. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 119, § 4, effective July 15, 1980; 1992, ch. 329, § 3, effective July 14, 1992; 1996, ch. 152, § 1, effective July 15, 1996; 1998, ch. 426, § 338, effective July 15, 1998) was repealed by Acts 2000, ch. 343, § 27, effective July 14, 2000.

211.958. Application to areas having volunteer ambulance services. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 119, § 5, effective July 15, 1980, 1992, ch. 329, § 4, effective July 14, 1992) was repealed by Acts 1996, ch. 152, § 2, effective July 15, 1996.

Emergency Medical Technicians

211.960. Title. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 211, § 1, effective June 17, 1978) was repealed by Acts 2000, ch. 343, § 27, effective July 14, 2000.

211.962. Current valid certification required — Violation of law or regulation. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 211, § 2, effective June 17, 1978; 1998, ch. 426, § 339, effective July 15, 1998) was repealed, reenacted and amended as KRS 311.6522 by Acts 2000, ch. 343, § 7, effective July 14, 2000.

211.964. Administrative regulations — Certification and recertification procedures. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 211, § 3, effective June 17, 1978; 1984, ch. 301, § 1, effective July 13, 1984; 1990, ch. 443, § 58, effective July 13, 1990; 1994, ch. 268, § 4, effective July 15, 1994; 1996, ch. 228, § 1, effective July 15, 1996; 1996, ch. 318, § 112, effective July 15, 1996; 1998, ch. 426, § 340, effective July 15, 1998) was repealed, reenacted and amended as KRS 311.6541 by Acts 2000, ch. 343, § 8, effective July 14, 2000.

211.966. Fees and charges. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 211, § 4, effective June 17, 1978; 1998, ch. 426, § 341, effective July 16, 1998) was repealed, reenacted and amended as KRS 311.6561 by Acts 2000, ch. 343, § 9, effective July 14, 2000.

211.967. Educational course concerning AIDS required for certification. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 443, § 57, effective July 13, 1990) was repealed, reenacted and amended as KRS 311.6531 by Acts 2000, ch. 343, § 10, effective July 14, 2000.

211.968. Certification and utilization of emergency medical technicians restricted. [Repealed, reenacted and amended.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 211, § 5, effective June 17, 1978) was repealed, reenacted and amended as KRS 311.6579 by Acts 2000, ch. 343, § 11, effective July 14, 2000.

Septic Tank Servicing

211.970. Definitions for KRS 211.972 to 211.982.

As used in KRS 211.972 to 211.982 , unless the context requires otherwise:

  1. “Approved” means that which has been considered acceptable to the cabinet;
  2. “Cabinet” means the Cabinet for Health and Family Services and includes its authorized agents;
  3. “Grease” means fats or oils of animal, vegetable, or mineral origin, separately or in colloidal or dissolved states in combination with soaps, detergents, or food particles;
  4. “Grease trap” means a component designed to separate grease and its constituents from the wastewater stream, provide for storage of separated grease, and discharge the remaining wastewater for treatment;
  5. “Holding tank” means a tank which provides limited pretreatment and storage for off-site disposal where site limitations preclude immediate installation of a subsurface soil absorption system, or connection to a municipal sewer. It also includes portable toilets and similar temporary-use units which contain holding tanks;
  6. “Person” means any individual, firm, association, organization, partnership, business trust, corporation, company, or governmental unit;
  7. “Secretary” means the secretary of the Cabinet for Health and Family Services;
  8. “Sewage” means domestic blackwater and greywater wastes, but does not include waste from industrial or commercial processes;
  9. “Sewage pretreatment unit” means a watertight sewage treatment structure designed and constructed to receive raw sewage, separate solids from liquids, digest organic matter through a period of retention, and allow clarified effluent to discharge to a subsurface soil absorption system. Pretreatment units fall into three (3) basic categories:
    1. Septic tanks, which rely predominantly on anaerobic bacterial action for treatment;
    2. Aerobic units, which introduce atmospheric air into the sewage to promote treatment by aerobic bacteria; and
    3. Combination units, which provide treatment through both anaerobic and aerobic bacterial action and mechanical filtering, ozonation, or ultraviolet irradiation;
  10. “Sewage sludge” means the solid or semisolid residues which are retained within a sewage pretreatment unit or grease trap, as a result of mechanical, hydraulic, biologic, or chemical actions. It also includes raw sewage accepted and stored within a holding tank;
  11. “Site” means a facility or parcel of land under the ownership of any person which is intended for use as the ultimate disposal or treatment location for sewage sludge; and
  12. “Tank” means any container placed on a vehicle to carry in transport sewage sludge removed from a sewage pretreatment unit, grease trap, or holding tank.

History. Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 1; 1992, ch. 248, § 3, effective July 14, 1992; 1998, ch. 426, § 342, effective July 15, 1998; 2005, ch. 99, § 392, effective June 20, 2005.

Legislative Research Commission Note.

Due to the transfer of functions by KRS 224.022 , subsections (1) to (3) have been included in this section by the Reviser of Statutes. Subsections (4) to (7) were formerly compiled in KRS 224.005 .

211.972. License and bonding required.

No person shall engage in the business of servicing or maintaining sewage pretreatment units, grease traps, or holding tanks, or the transporting of sewage sludge from those facilities within the Commonwealth of Kentucky without being licensed and bonded as hereinafter provided.

History. Enact. Acts 1968, ch. 82, § 2; 1992, ch. 248, § 4, effective July 14, 1992.

Compiler’s Notes.

This section was formerly compiled as KRS 224.223 .

211.974. Exceptions to licensing requirements.

Nothing in KRS 211.972 to 211.982 shall be construed to require a business license for:

  1. A property owner to clean his own sewage pretreatment unit, grease trap, or holding tank.
  2. A municipality servicing and maintaining a public sewage treatment facility.
  3. A master plumber, duly qualified and licensed under the laws of the State of Kentucky, except that vehicles which are used as defined in KRS 211.972 to 211.982 shall be licensed as provided.

History. Enact. Acts 1968, ch. 82, § 6; 1978, ch. 384, § 89, effective June 17, 1978; 1980, ch. 188, § 221, effective July 15, 1980; 1992, ch. 248, § 5, effective July 14, 1992.

Compiler’s Notes.

This section was formerly compiled as KRS 224.225 .

211.976. Application, filing and contents — Conditions of bond.

    1. All persons proposing to engage in business for the purposes of this chapter shall file an application for licensing on forms provided by the cabinet with information specifying that waste hauling is restricted to household sewage or sludge only; commercial or industrial sanitary sewage or sludge only; grease trap sewage or sludge only; or combinations of the above. Other information deemed necessary, as well as the required fee, shall accompany the application. (1) (a) All persons proposing to engage in business for the purposes of this chapter shall file an application for licensing on forms provided by the cabinet with information specifying that waste hauling is restricted to household sewage or sludge only; commercial or industrial sanitary sewage or sludge only; grease trap sewage or sludge only; or combinations of the above. Other information deemed necessary, as well as the required fee, shall accompany the application.
    2. The secretary may promulgate administrative regulations to establish a fee schedule that:
      1. Shall be the total of the operational and administrative costs of the programs to the cabinet and to agencies as defined in KRS 211.185 ;
      2. Beginning on March 17, 2020, until December 31, 2020, shall not increase more than twenty-five percent (25%) of the fee amount on March 17, 2020; and
      3. Beginning on or after January 1, 2021, shall not increase more than five percent (5%) for each year thereafter.
  1. If the cabinet, after any investigation it deems necessary, finds that the applicant has the qualifications, experience, reputation, and approved site for disposal necessary to perform the service in an acceptable manner and not detrimental to the environment or to public health, it shall issue or cause to be issued a license for the said business. This license is not transferable. The application for license shall be made to the cabinet prior to March 1 of each year, and shall be accompanied by a surety bond tendered by a company registered in the Commonwealth of Kentucky, to indemnify persons for whom service and maintenance work is performed, if faulty, and to guarantee disposal of sewage sludge in an approved manner; or with sureties, form and sufficiency acceptable to the cabinet. The amount of the bond shall be established by administrative regulation promulgated by the cabinet. The cabinet shall be the obligee, and the bond shall be for the benefit and purpose to protect all persons and the environment damaged by faulty workmanship in the servicing or maintaining of sewage pretreatment units, grease traps, or holding tanks, or in the disposal of sewage sludge, and shall guarantee the appearance of the licensee to answer any summons within thirty (30) days of notice to the bonding company of the issuance of summons. Bonds shall be conditioned upon the performance of the services in a workmanlike manner, and in a manner which will not create a public health hazard nor damage the environment.

History. Enact. Acts 1968, ch. 82, § 3; 1972 (1st Ex. Sess.), ch. 3, § 16; 1974, ch. 74, Art. III, § 13(8); 1992, ch. 248, § 6, effective July 14, 1992; 2018 ch. 136, § 10, effective July 1, 2019; 2020 ch. 21, § 7, effective March 17, 2020.

Compiler's Notes.

This section was formerly compiled as KRS 224.227 .

211.978. Transporting vehicle to carry license — Application — Issuance.

  1. All trucks or other vehicles used to transport or carry wastes from sewage pretreatment units, grease traps, or holding tanks shall be licensed by the cabinet. The application for this vehicle license shall be made prior to March 1 of each year on forms provided by the cabinet, and shall state any information that the cabinet shall deem necessary. The secretary may establish a fee schedule according to authorization in the state budget document.
  2. If the cabinet, after any investigation it deems necessary, finds that the truck or vehicle and equipment is acceptable for the purposes of this chapter, it shall issue or cause to be issued a license for the use of the vehicle for the purpose of this chapter. This license is not transferable from one vehicle to another, and shall be carried on the vehicle at all times. There shall be painted on both sides and the rear of the vehicle in letters not less than two inches high the letters “K.Y.”, followed by the assigned vehicle license number.

History. Enact. Acts 1968, ch. 82, § 4; 1972 (1st Ex. Sess.), ch. 3, § 17; 1974, ch. 74, Art. III, § 13(8); 1992, ch. 248, § 7, effective July 14, 1992.

Compiler’s Notes.

This section was formerly compiled as KRS 224.230 .

211.979. Restrictions of use on vehicles licensed to haul sewage, sewage sludge, or grease.

  1. Any vehicle licensed to haul sewage or sewage sludge pursuant to the provisions of this chapter shall be dedicated for those purposes only and shall not be used for hauling any product or substance intended for human or animal consumption.
  2. Any vehicle licensed to haul sewage, sewage sludge, or grease shall be prohibited from hauling any substances or materials classified as hazardous substances or hazardous waste constituents.

History. Enact. Acts 1992, ch. 248, § 1, effective July 14, 1992.

211.980. Authorization to issue administrative regulations — Hearings.

The secretary shall promulgate administrative regulations pursuant to the provisions of KRS Chapter 13A dealing with vehicle tank and equipment requirements; conduct of business; approval of disposal or treatment sites and methods; inspection and administrative enforcement procedures, including suspension or revocation of licensing; injunctive action; and any other matters deemed necessary to protect public health and the environment. Any administrative hearing conducted under authority of this section shall be conducted in accordance with KRS Chapter 13B.

History. Enact. Acts 1968, ch. 82, § 5; 1972, ch. 44, § 1; 1972 (1st Ex. Sess.), ch. 3, § 18; 1974, ch. 74, Art. III, § 13(8); 1992, ch. 248, § 8, effective July 14, 1992; 1996, ch. 318, § 113, effective July 15, 1996.

Compiler’s Notes.

This section was formerly compiled as KRS 224.233 .

211.981. Disposal of sewage and sewage sludge.

  1. All sewage or sewage sludge hauled pursuant to the provisions of KRS 211.970 to 211.982 shall be disposed of by landspreading at an approved site or in a publicly-owned sewage treatment plant, unless it is demonstrated to the satisfaction of the cabinet that a publicly-owned sewage treatment plant does not exist within a reasonable hauling distance from the site at which the sewage or sewage sludge is received, or the publicly-owned sewage treatment plant refuses to accept the sewage or sewage sludge.
  2. If the cabinet determines that no publicly-owned sewage treatment plant is available for use by a licensed hauler, the cabinet may approve an alternative mode of disposal including, but not limited to, landspreading. The cabinet shall promulgate administrative regulations pursuant to KRS Chapter 13A governing landspreading and other acceptable modes of disposal which insure:
    1. That no contamination threat is posed to surface waters from any run-off; and
    2. That all reasonable protection is afforded to prevent contamination of groundwater.
  3. Trenching of sewage and sewage sludge shall be prohibited except where specifically authorized by the cabinet.

History. Enact. Acts 1992, ch. 248, § 2, effective July 14, 1992; 1998, ch. 71, § 11, effective July 15, 1998; 1998, ch. 570, § 2, effective July 15, 1998.

Legislative Research Commission Note.

(7/15/98). This section was amended by 1998 Ky. Acts chs. 71 and 570 which are identical and have been codified together.

211.982. Use of fees.

All money paid to the State Treasurer for licenses and fees required by KRS 211.972 to 211.980 and regulations promulgated pursuant to KRS Chapter 13A shall be for the sole use of the cabinet and shall be in addition to any moneys appropriated by the General Assembly for the use of the cabinet.

History. Enact. Acts 1968, ch. 82, § 7; 1978, ch. 384, § 572, effective June 17, 1978; 1992, ch. 248, § 9, effective July 14, 1992.

Compiler’s Notes.

This section was formerly compiled as KRS 224.237 .

Hot Water Heaters

211.984. Definition.

As used in KRS 211.985 , unless the context otherwise requires: “Hot water heater” means the primary source of hot water for a residence.

History. Enact. Acts 1986, ch. 364, § 1, effective July 15, 1986.

211.985. Presetting of hot water heater thermostat by manufacturer.

  1. The thermostat of a new water heater offered for sale in this state for use in a residential unit shall be preset by the manufacturer at a temperature no higher than one hundred thirty degrees Fahrenheit (130 degrees F.) or fifty-four point four degrees Celsius (54.4 degrees C.) or, if the water heater cannot be set that low, at the minimum temperature.
  2. Nothing in this section shall preclude the owner of an owner-occupied residential unit; the resident of a leased or rented residential unit; or, upon the request of such owner or resident, a person licensed and acting in accordance with the requirements of KRS 318.010(2) and 318.010(3) from readjusting the temperature setting after occupancy.
  3. Nothing in this section requires or permits any inspections other than those otherwise required or permitted by law.

History. Enact. Acts 1986, ch. 364, § 2, effective July 15, 1986.

Penalties

211.990. Penalties.

  1. Any owner or occupant who fails to comply with an order made under the provisions of KRS 211.210 shall be guilty of a violation, and each day’s continuance of the nuisance, source of filth, or cause of sickness, after the owner or occupant has been notified to remove it, shall be a separate offense.
  2. Except as otherwise provided by law, anyone who fails to comply with the provisions of the rules and regulations adopted pursuant to this chapter or who fails to comply with an order of the cabinet issued pursuant thereto shall be guilty of a violation. Each day of such violation or noncompliance shall constitute a separate offense.
  3. Any person who violates any provision of KRS 211.182 shall, upon first offense, be guilty of a Class A misdemeanor. Each subsequent violation of any provision of KRS 211.182 shall constitute a Class D felony.
  4. Any person who violates any provision of KRS 211.842 to 211.852 or any regulation adopted hereunder or any order issued by the Cabinet for Health and Family Services to comply with any provision of KRS 211.842 to 211.852 or the regulations adopted thereunder shall be guilty of a Class A misdemeanor. Each day of violation or noncompliance shall constitute a separate offense.
  5. A person who performs or offers to perform lead-hazard detection or lead-hazard abatement services in target housing or child-occupied facilities who is not certified as required by KRS 211.9063 or 211.9069 shall be guilty of a Class A misdemeanor.
  6. Any person who performs lead-hazard detection or lead-hazard abatement services in target housing or child-occupied facilities, who willfully violates the standards for performing lead-hazard detection or lead-hazard abatement procedures included in the administrative regulations promulgated pursuant to KRS 211.9075 shall be guilty of a Class D felony.
  7. The penalties provided in subsections (5) and (6) of this section are cumulative and are in addition to any other penalties, claims, damages, or remedies available at law or in equity.
  8. Any person who violates any provisions of KRS 211.760 shall be fined not less than ten dollars ($10) nor more than one hundred dollars ($100). Each day of violation or noncompliance shall constitute a separate offense.

History. Enact. Acts 1954, ch. 157, § 23; subsection (3) added, 1960, ch. 47, § 7; subsection (5) added, 1978, ch. 211, § 6, effective June 17, 1978; subsection (4) added, 1978, ch. 279, § 7, effective June 17, 1978; 1990, ch. 451, § 13, effective July 13, 1990; 1992, ch. 385, § 2, effective July 14, 1992; 1992, ch. 463, § 22, effective July 14, 1992; 1996, ch. 168, § 9, effective July 15, 1996; 1998, ch. 426, § 343, effective July 15, 1998; 2000, ch. 262, § 33, effective July 14, 2000; 2000, ch. 343, § 12, effective July 14, 2000; 2005, ch. 99, § 393, effective June 20, 2005.

Legislative Research Commission Notes.

(7/1/2019). This statute was amended by 2018 Ky. Acts chs. 142 and 187, which do not appear to be in conflict and have been codified together.

Research References and Practice Aids

Cross-References.

Sentence of imprisonment for misdemeanor, KRS 532.090 .

Sentence of imprisonment for felony, KRS 532.060 .

211.991. Penalty for violation of KRS 211.670.

  1. Any person who intentionally violates any of the provisions of KRS 211.670 shall be guilty of a Class A misdemeanor.
  2. The penalty provided for in subsection (1) of this section shall not be construed as restricting any remedy, provisional or otherwise, provided by law for the benefit of the Department for Public Health.

History. Enact. Acts 1992, ch. 62, § 6, effective July 14, 1992; 1998, ch. 426, § 344, effective July 15, 1998.

Research References and Practice Aids

Cross-References.

Sentence of imprisonment for misdemeanor, KRS 532.090 .

211.992. Penalty. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 192, § 11; 1970, ch. 236, § 2) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

211.993. Penalties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 339, § 6; 1974, ch. 74, Art. VI, § 107(1); 1998, ch. 426, § 345, effective July 15, 1998; 2005, ch. 99, § 394, effective June 20, 2005) was repealed by Acts 2012, ch. 50, § 20, effective July 12, 2012.

211.994. Penalty.

If the owner of the posted dwelling unit permits occupancy of the dwelling or dwelling unit, after the expiration of the thirty (30) day period specified in subsection (4) of KRS 211.905 by persons under six (6) years of age, he shall be fined twenty-five dollars ($25). Each day of continuing violation shall be deemed a separate offense.

History. Enact. Acts 1974, ch. 20, § 6(6).

211.995. Penalties for violation of KRS 211.972 to 211.982 — Civil penalty — License revocation.

  1. Any person who shall violate or refuse to comply with any of the provisions of KRS 211.972 to 211.982 or regulations promulgated pursuant thereto shall be guilty of a misdemeanor punishable by a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500) and when such violation is of a continuing nature, each day upon which a violation occurs shall be deemed a separate offense.
  2. In addition to any criminal penalty imposed under this section, any person who violates or refuses to comply with any of the provisions of KRS 211.972 to 211.982 shall be subject to a civil penalty not to exceed the sum of five thousand dollars ($5,000).
  3. The secretary may, at his or her discretion, revoke any license issued pursuant to KRS 211.972 to 211.982 upon confirmation that a licensee has committed a third or subsequent violation of those sections.

History. Enact. Acts 1968, ch. 82, § 8; 1978, ch. 384, § 573, effective June 17, 1978; 1992, ch. 248, § 10, effective July 14, 1992.

Compiler’s Notes.

This section was formerly compiled as KRS 224.992 .

CHAPTER 212 Local Health Programs

General Provisions

212.010. City health boards — Establishment — Membership. [Repealed.]

Compiler’s Notes.

This section (2054a-21) was repealed by Acts 1982, ch. 228, § 5, effective July 15, 1982.

212.020. County health boards — Appointment — Membership — Term — Compensation — Removal of board members.

  1. The secretary of the Cabinet for Health and Family Services shall appoint, from a list of nominees, three (3) qualified, licensed, and practicing physicians; one (1) qualified, licensed, and practicing dentist; one (1) qualified, licensed, and practicing registered nurse; one (1) licensed engineer engaged in the practice of civil or sanitary engineering; one (1) qualified, licensed, and practicing optometrist; one (1) qualified licensed and practicing veterinarian; one (1) licensed pharmacist; and one (1) lay person knowledgeable in consumer affairs residing in each county who, together with the county judge/executive and one (1) person appointed by the fiscal court in each county, shall constitute a local board of health for the respective counties in which they reside. The list of nominees submitted to the secretary shall be accepted from any source and shall be solicited and obtained from the county judge/executive, fiscal court, and county health department staff; and nominations of physicians, dentists, nurses, engineers, optometrists, veterinarians, and pharmacists shall be solicited and obtained from the county’s medical society, dental society, nursing association, engineering association, optometric association, veterinarian association, and pharmacists’ association, respectively. If a county does not have three (3) qualified, licensed, and practicing physicians or one (1) qualified, licensed, and practicing dentist or one (1) qualified, licensed, and practicing registered nurse or one (1) qualified, licensed, and practicing civil or sanitary engineer or one (1) qualified, licensed, and practicing optometrist or one (1) qualified, licensed, and practicing veterinarian, or one (1) licensed pharmacist residing therein, the secretary of the Cabinet for Health and Family Services may appoint a resident lay person knowledgeable in consumer affairs in lieu thereof for each such vacancy. The members of the local board shall hold office for a term of two (2) years with physicians, dentists, pharmacists, and fiscal court appointees appointed in even-numbered years and nurses, engineers, optometrists, veterinarians, and lay appointees appointed in odd-numbered years, for terms from the date of their appointment, beginning on or after January 1, 1993, and until their successors are appointed, except the terms of the first appointment of all physician and fiscal court appointee terms beginning on January 1, 1993, shall expire on December 31, 1993; dentist terms beginning on August 1, 1992, shall expire on December 31, 1993; nurse, engineer, and optometrist appointments beginning on August 1, 1992, shall expire on December 31, 1994; and veterinarian and lay appointments beginning on October 1, 1992, shall expire on December 31, 1994. The members of the board shall receive no compensation for their services.
  2. The secretary shall remove any member, other than the county judge/executive or fiscal court appointee, who fails to attend three (3) consecutive scheduled meetings, and may remove any board member, except the county judge/executive or fiscal court appointee, as provided by KRS 65.007 . The fiscal court may remove its appointee in like fashion.

History. 2055: amend. Acts 1958, ch. 96, § 1; 1960, ch. 6; 1968, ch. 162; 1976 (Ex. Sess.), ch. 20, § 6; 1980, ch. 18, § 20, effective July 15, 1980; 1982, ch. 148, § 1, effective July 1, 1982; 1992, ch. 121, § 1, effective July 14, 1992; 1998, ch. 426, § 346, effective July 15, 1998; 2002, ch. 80, § 2, effective July 15, 2002; 2005, ch. 99, § 395, effective June 20, 2005.

NOTES TO DECISIONS

1.County Officials.

County boards of health are county officials, having duties to perform within their counties. City of Bardstown v. Nelson County, 78 S.W. 169, 25 Ky. L. Rptr. 1478 (1904).

2.Creation.

Legislature, having right to have health police laws executed by officials selected for fitness for task rather than to impose that duty upon fiscal courts or town councils, may create county boards of health and require them to discharge certain duties to state and county. City of Bardstown v. Nelson County, 78 S.W. 169, 25 Ky. L. Rptr. 1478 (1904).

3.Vacation of Other Office.

Pursuant to KRS 61.080 and 61.090 , a city councilman vacated that office by accepting office as member of county board of health. Vickers v. Sory, 102 S.W. 272, 31 Ky. L. Rptr. 277 (1907).

Opinions of Attorney General.

One would be prohibited from serving on the county board of health and on the county board of education at the same time since the two offices are incompatible. OAG 62-217 , 70-632.

The fiscal court of a county cannot remove the member of the county board of health appointed by it for a statutory term of two years, except for cause, after he has had an opportunity to be heard. OAG 64-629 .

There is no constitutional or statutory incompatibility between membership on the county fiscal court and membership on the county board of health. OAG 66-87 .

Where a member of the county fiscal court was appointed to the county board of health, there would be no conflict of interests so long as the member being appointed did not vote for his own appointment. OAG 66-87 .

The mayor of a city of the fifth class is a municipal officer and may not at the same time hold a position of county judge (now county judge/executive) pro tem or be a member of the county board of health. OAG 73-548 .

A county judge (now county judge/executive) cannot lawfully appoint a proxy to attend the meetings of the county board of health and act in his behalf unless the fiscal court enacts an ordinance pursuant to KRS 67.083 authorizing him to appoint a proxy to act in his stead, when he is unable for any good reason to attend meetings of the county board of health. OAG 74-548 .

The power and authority previously vested in the state board of health is now vested in the secretary for human resources (now health services). OAG 74-700 .

County health boards are established under this section which provides that the boards shall constitute local boards of health for the respective counties but does not provide that the boards are agencies of the state; while employees of a county board of health participate in the state retirement system by Executive Order, such employees would not be eligible to participate in the deferred compensation plan authorized by KRS 18.550 (now 18A.250 ). OAG 76-89 .

Research References and Practice Aids

Cross-References.

Births, deaths, vital statistics, KRS Ch. 213.

Births to be registered, KRS 213.046 .

Certificate of death to be filed, KRS 213.076 .

Combination birth-death certificate, KRS 213.096 .

Department of labor to cooperate with local health authorities, KRS 336.090 .

Diseases, KRS Ch. 214.

Disposition of county health boards on consolidation of counties, KRS 67.310 .

Hotel, restaurant and trailer park regulations, KRS Ch. 219.

Local government, KRS Title IX.

Nurses, KRS Ch. 314.

Tuberculosis control, KRS Ch. 215.

212.025. Cabinet for Health and Family Services and local health department may charge fees for nursing care and health services.

  1. The Cabinet for Health and Family Services and any local health department, with the approval of the Cabinet for Health and Family Services, is hereby authorized to provide home nursing care services and other health services and may charge fees therefor. The secretary of the Cabinet for Health and Family Services shall adopt a fee schedule covering all charges for such services.
  2. All fees and charges collected by the Cabinet for Health and Family Services or the local health department concerned shall be credited to a trust and agency fund to be used only for carrying out the provisions of this section.

History. Enact. Acts 1966, ch. 107, §§ 1, 2; 1974, ch. 74, Art. VI, § 107(1), (2) and (11); 1998, ch. 426, § 347, effective July 15, 1998; 2005, ch. 99, § 396, effective June 20, 2005.

212.030. District health department — Establishment. [Repealed.]

Compiler’s Notes.

This section (2054a-2) was repealed by Acts 1972, ch. 301, § 21.

212.040. Establishment for one county by fiscal court — Appropriation.

The fiscal court of any county may by resolution at a regular session declare that the county shall be a district for the creation, establishment and maintenance of a county health department. Upon the resolution being passed, the fiscal court shall at once, out of the funds of the county, appropriate a sufficient amount for the creation, establishment and maintenance of the county health department. If there are not sufficient funds on hand for such appropriation at the time the resolution is adopted, the fiscal court shall, at the next succeeding county levy, make a levy sufficient to produce the necessary amount of tax for the creation, establishment and maintenance of the county health department. The fiscal court shall annually thereafter make a levy sufficient to pay the annual expense of maintenance of the county health department. After the resolution creating the department is entered, any twenty (20) legal voters may, within thirty (30) days, file with the county judge/executive a petition signed by them requesting that the establishment of the county health department be done by the vote of the people of the county as provided in KRS 212.080 , in which case it shall be so done.

History. 2054a-2.

NOTES TO DECISIONS

1.Establishment.

Fiscal court was not required to make appropriation to maintain health department where resolution undertaking to establish department was passed at special, and not at regular session, and subsequent order, although entered at regular term, merely appropriated funds to maintain department. Daviess County Board of Health v. McFarland, 197 Ky. 838 , 248 S.W. 179, 1923 Ky. LEXIS 718 ( Ky. 1923 ).

A county health department can be established only by a resolution adopted at a regular term of the fiscal court. Where such a resolution was adopted at a special term, the fact that subsequent orders making appropriations for the health department were made at regular terms did not operate to validate the attempted resolution of establishment. Estill County v. Noland, 292 Ky. 698 , 167 S.W.2d 707, 1942 Ky. LEXIS 146 ( Ky. 1942 ).

2.Appropriation.

The fiscal court is required to maintain a health department, but the provision for the maintenance of the department cannot be stretched to include the power to appropriate funds to abate nuisances specifically directed to be discontinued by individuals responsible therefor. Jefferson County v. Jefferson County Fiscal Court, 269 Ky. 535 , 108 S.W.2d 181, 1937 Ky. LEXIS 635 ( Ky. 1937 ).

The fiscal court may not appropriate money to the state board of health nor contract with the state board of health for medical aid to the citizens of the county except pursuant to the provisions of KRS 212.040 to 212.710 . Estill County v. Noland, 292 Ky. 698 , 167 S.W.2d 707, 1942 Ky. LEXIS 146 ( Ky. 1942 ).

3.Petition.

After the thirty-day period has expired, signers of a petition entered within that period may not withdraw their names. Commonwealth ex rel. Meredith v. Fife, 288 Ky. 292 , 156 S.W.2d 126, 1941 Ky. LEXIS 96 ( Ky. 1941 ).

Opinions of Attorney General.

A special tax to be levied for the operation of a county health department could only be levied in the manner provided in KRS 212.720 through 212.740 . OAG 62-618 .

The county fiscal court could not make a special tax levy to finance a county health department. OAG 62-618 .

Where county health funds were turned over to the state health department and employees of the county health department were paid by the state health department, an attempt by the fiscal court to pay a health department employee $15 a month extra out of the county general fund was illegal. OAG 66-137 .

A fiscal court had no statutory authority to submit for a vote of the people the question of whether or not to increase the tax levy for additional funds for the county health department. OAG 68-405 .

Since a county health department is a creature of the fiscal court by way of the fiscal court’s creating and financially maintaining the county health department, and since the county health department has no role in the creation of a district health department, there is nothing the county health department can do by way of preventing the withdrawal of the county fiscal court from a district health department compact. OAG 80-193 .

Upon the creation of a county health department the fiscal court is required to appropriate a sufficient amount for the creation, establishment and maintenance of the department since it is a legitimate governmental object of the fiscal court’s budgeting authority, and a working part of the county’s budget when county appropriations are so provided. OAG 81-229 .

212.050. Establishment for several counties by fiscal courts — Appropriation — Apportionment of expense. [Repealed.]

Compiler’s Notes.

This section (2054a-3, 2054a-4) was repealed by Acts 1972, ch. 301, § 21.

212.060. When fiscal court may not establish.

When a county by a vote of its citizens, as provided in KRS 212.070 to 212.110 , shall vote against creating, establishing and maintaining a county department of health, the department of health may not be created, established or maintained by resolution of its fiscal court until after the expiration of the terms of office of the members of the fiscal court who were members of the court when the election was held.

History. 2054a-9: amend. Acts 1972, ch. 301, § 14.

212.070. Establishment by election.

If the fiscal court of any county fails to establish a county department of health, as authorized in KRS 212.040 , the citizens of the county may have such county established as a county department of health in accordance with the provisions of KRS 212.080 .

History. 2054a-5: amend. Acts 1972, ch. 301, § 15.

212.080. Elections in one county.

A number of legal voters equal to ten percent (10%) of the total number of votes cast at the last general election of any county may file their petition with the county judge/executive asking that the proposition of creating, establishing and maintaining a county health department be submitted to the voters of the county at the next general election held in the county that does not occur within less than eighty-four (84) days after filing the petition. Each voter signing the petition shall state his full name and address. At the time of filing the petition the petitioners shall deposit with the county judge/executive a sufficient sum of money to pay the cost of publication, as required by this section. Upon the filing of the petition with the county judge/executive, he shall enter an order directing the publication in full of the petition, pursuant to KRS Chapter 424, and shall further enter and file an order with the county clerk not later than the second Tuesday in August preceding a general election directing the county clerk to have placed before the voters at such election the question, “Are you in favor of establishing a county department of health?” The voter shall indicate a “Yes” or a “No” vote. If the majority of those voting on the proposition vote “Yes,” a department of health for the county shall be created, established and maintained. The vote shall be canvassed and returned by the board of election commissioners for the general election. If the election is contested, the members of the fiscal court of the county shall be made defendants.

History. 2054a-5, 2054a-6: amend. Acts 1966, ch. 239, § 163; 1978, ch. 384, § 344, effective June 17, 1978; 1982, ch. 360, § 56, effective July 15, 1982; 1996, ch. 195, § 67, effective July 15, 1996.

NOTES TO DECISIONS

1.Withdrawal of Names.

Subscribers to a petition authorized under this section may not withdraw their names therefrom after it has been filed and the time for filing has expired. Commonwealth ex rel. Meredith v. Fife, 288 Ky. 292 , 156 S.W.2d 126, 1941 Ky. LEXIS 96 ( Ky. 1941 ).

212.090. Election in several counties. [Repealed.]

Compiler’s Notes.

This section (2054a-6) was repealed by Acts 1972, ch. 301, § 21.

212.100. Established partly by fiscal court and partly by election. [Repealed.]

Compiler’s Notes.

This section (2054a-9) was repealed by Acts 1972, ch. 301, § 21.

212.110. Certification of election results.

The result of any county election for the creation, establishment and maintenance of a county department of health shall be certified to the fiscal court of the county in which the department is to be created, established and maintained. The fiscal court shall, if the result of the election is certified as in favor of the department, forthwith proceed to declare the county a county department of health, and shall proceed to put the department of health into effect in the same manner as they are authorized to do upon their own initiative. The cost and expense of its creation, establishment and maintenance shall follow the provisions of KRS 212.040 .

History. 2054a-7: amend. Acts 1972, ch. 301, § 16.

212.120. Notice of establishment given Cabinet for Health and Family Services — Allocation of state funds to districts — Equalization of allotments — Modification and cancellation of allotments — Appropriations not to lapse.

  1. Upon the creation of a county health department, the fiscal court of the county shall at once notify the Cabinet for Health and Family Services of the action of the county to create, establish, and maintain a county health department. When the duly qualified officials of a county certify to the Cabinet for Health and Family Services a true copy of the order or vote establishing a health department, and providing for its maintenance, and state the amount of the annual appropriation provided by the county the Cabinet for Health and Family Services shall make an investigation as to the necessity of the development of the department, and the adequacy of the appropriation provided by the county therefor, and shall report its findings to the Governor.
  2. If the Cabinet for Health and Family Services finds that such county health department has been established in accordance with the provisions of this chapter and is being maintained, conducted, and operated in accordance with the standards prescribed by the Cabinet for Health and Family Services, the Cabinet for Health and Family Services shall, on or before July 1 in each year, allot to each such county health department such amount that the Cabinet for Health and Family Services deems to constitute a just and equitable share of all funds available therefor by appropriation by the General Assembly of this Commonwealth, by grants and gifts received by this Commonwealth from the government of the United States of America or any of its agencies or instrumentalities, and from other sources. Provided, however, that no allotment to any such county health department shall be less than two thousand five hundred dollars ($2,500).
  3. In determining the allotments referred to in subsection (2) of this section, the Cabinet for Health and Family Services shall endeavor to provide for a distribution of the funds in a manner that is reasonably calculated to equalize, so far as practicable, local health services to the people of all counties served by the county health departments. The Cabinet for Health and Family Services may take into consideration variations existing between counties by reasons of difference in population, resources, industrialization, tax assessments and tax rates, and other local factors and conditions; the legislative intent being hereby declared to be that counties shall provide, from local sources of revenue that are available or that may be made available to them, financial support of county health departments to the extent of their representative abilities.
  4. The Cabinet for Health and Family Services may, in its discretion alter or modify allotments from time to time and shall cancel any allotment whenever it finds that there is no further need or necessity for a particular county health department for whose benefit the allotment was made or whenever a particular county health department for whose benefit an allotment was made is not maintained, operated, and conducted in accordance with the standards prescribed by the Cabinet for Health and Family Services. Nothing in this section shall be construed as requiring the Cabinet for Health and Family Services to allot all funds available for local health purposes, or as prohibiting the department from allotting such portion thereof, as the department may determine, to a reserve account which may be suballotted by the department in such a manner that it considers proper in the event of emergencies, disaster, or unforeseen events, without regard to the provisions of subsection (3) of this section.
  5. Notwithstanding the provisions of KRS 45.229 and any other provision of the Kentucky Revised Statutes, any unexpended or unencumbered balance of any appropriations made available for allotment and expenditure, as provided above, for the first fiscal year of each biennium, remaining at the end of such fiscal year, shall be carried forward and be available for expenditure at any time during the ensuing fiscal year within the biennium and no portion thereof shall lapse to the general fund.

History. 2054a-8: amend. Acts 1952, ch. 153, § 3; 1958, ch. 126, § 27; 1972, ch. 301, § 17; 1974, ch. 74, Art. VI, § 107(3); 1982, ch. 450, § 75, effective July 1, 1983; 1998, ch. 426, § 348, effective July 15, 1998; 2005, ch. 99, § 397, effective June 20, 2005.

Opinions of Attorney General.

Where a county wishes to retain a county health department and does not wish to join a district health department, the allotment of state appropriations to that county health department must be made strictly under the guidelines expressed in this section; thus the minimum of $2500 must be observed and such county allotment must be effected as “a just and equitable share” of such available appropriations. OAG 82-78 .

A Department for Human Resources (now Cabinet for Health and Family Services) policy which allowed the department to withhold 25 percent of a county’s yearly allocation of appropriations if the county chose to retain its county health departments rather than join a district health department violated the express provisions of subsection (2) of this section and was arbitrary under Ky. Const., § 2. OAG 82-78 .

From the language of this section it is clear that the Legislature has vested the Cabinet for Human Resources (now Health and Family Services) with wide discretion to oversee or administer local boards of health and to set policies under which they are to operate. OAG 92-8 .

The Cabinet for Human Resources (now Health and Family Services) has full statutory authority to establish a policy requiring a local health department to perform accounting and payroll functions through a centralized system operated by the Cabinet. OAG 92-8 .

212.130. County and district health departments, how organized.

Immediately after receiving notice of the creation of a county or district department of health, the Cabinet for Health and Family Services shall notify the secretary of the county board or boards of health to call a meeting of the county board or boards of health for the purpose of organizing the county or district department of health.

History. 2054a-10: amend. Acts 1974, ch. 74, Art. VI, § 107(3); 1998, ch. 426, § 349, effective July 15, 1998; 2005, ch. 99, § 398, effective June 20, 2005.

212.140. County health department — How governed.

A county department of health shall be governed by the members of the county board of health.

History. 2054a-10, 2054a-15: amend. Acts 1972, ch. 301, § 18.

Research References and Practice Aids

Cross-References.

Disposition of county health departments on consolidation of counties, KRS 67.310 .

212.150. Expenditures, maximum amount permitted for county and district health departments. [Repealed.]

Compiler’s Notes.

This section (2054a-11, 2054a-16: amend. Acts 1952, ch. 153, § 4) was repealed by Acts 1954, ch. 156, § 4.

212.160. Office quarters for county boards and district departments.

The county board of health of each county having a county department of health, and the governing body of each district department of health, shall provide an office suitably furnished for its meetings and for the conduct of its business, and conveniently located as determined by it.

History. 2054a-12, 2054a-17.

NOTES TO DECISIONS

Cited:

Ashland-Boyd County City-County Health Dep’t v. Riggs, 252 S.W.2d 922, 1952 Ky. LEXIS 1049 ( Ky. 1952 ).

Opinions of Attorney General.

While this section and KRS 212.240 charge the county board of health with general authority and responsibility for the proper condition of its facilities, when a structure is built with funds obtained on the application of the fiscal court under the Hill-Burton act, the fiscal court has the primary responsibility for upkeep and maintenance of the building. OAG 68-145 .

The county board of health may take title to real and personal property necessary to its authorized functions. OAG 71-331 .

212.170. Appointment of health officers — Assistant — Employees — Appeals.

  1. The county board of health of each county having a county department of health shall, subject to the approval of the Cabinet for Health and Family Services, appoint a health officer who shall, subject to merit system provisions, hold office at the pleasure of both the county board and the Cabinet for Health and Family Services.
  2. A health officer may:
    1. With the approval of the Cabinet for Health and Family Services and the local boards of health concerned, serve in such capacity for more than one county; and
    2. At the discretion of the local board, act as chief administrative officer of the board.
  3. A health officer may appoint an administrative assistant for each county served by him subject to the approval of the Cabinet for Health and Family Services. An administrative assistant shall exercise such duties as may be delegated to him by the health officer.
  4. A health officer may employ and fix the compensation of, by contract or otherwise, subject to the approval of the Cabinet for Health and Family Services, all medical, technical, clerical, professional, and other employees necessary for the maintenance and operation of the local health department in accordance with standards and merit system provisions prescribed by the Cabinet for Health and Family Services.
  5. In the absence of a local health officer, the secretary for health and family services or his duly appointed representative shall serve as health officer for the county concerned.
  6. Appeals under the local health department merit system shall be conducted in accordance with KRS Chapter 13B.

History. 2054a-1, 2054a-10, 2054a-15, 2054a-18, 2054a-21, 2055: amend. Acts 1952, ch. 153, § 5; 1954, ch. 209, § 1; 1958, ch. 96, § 2; 1974, ch. 74, Art. VI, § 107(1), (11); 1982, ch. 228, § 2, effective July 15, 1982; 1996, ch. 318, § 114, effective July 15, 1996; 1998, ch. 426, § 350, effective July 15, 1998; 2005, ch. 99, § 399, effective June 20, 2005.

Legislative Research Commission Note.

By virtue of KRS 212.350 to 212.620 , enacted in 1942, this section no longer applies to counties containing a city of the first class.

NOTES TO DECISIONS

1.Removal.

City health officer could be removed without notice or hearing upon charges by city board of health, since statute permits removal at any time, which is equivalent to right to remove at pleasure, and ordinance fixing term at two years was ultra vires. Riffe v. Finsby, 103 Ky. 631 , 45 S.W. 1046 ( Ky. 1898 ).

Although contract made by mayor with physician specified duties not legally imposed upon health officer, physician was removable by board at any time where contract had been made because of his appointment as health officer. Young v. Ashland, 125 S.W. 737, 1910 Ky. LEXIS 650 ( Ky. 1910 ).

Notwithstanding the mayor, on recommendation of city board of health, had made contract with physician appointing him health officer for two-year term, he could be removed at any time by board thus terminating contract and right to future salary. Young v. Ashland, 125 S.W. 737, 1910 Ky. LEXIS 650 ( Ky. 1910 ).

2.Appointment of Assistants.

The county board of health can employ assistants for the health officer to eradicate an epidemic at a distant point where circumstances and location preclude personal attention of health officer in ordinary course of his business. Breckenridge County v. McDonald, 154 Ky. 721 , 159 S.W. 549, 1913 Ky. LEXIS 150 ( Ky. 1913 ).

Opinions of Attorney General.

The State Department of Health (now Cabinet for Health and Family Services), acting through its commissioner (now secretary), is statutorily empowered to set the qualifications to be met by officers and employees of county health departments. OAG 64-425 .

The State Department of Health (now Cabinet for Health and Family Services) has the statutory authority to establish mandatory retirement restrictions for county health department employees. OAG 64-425 .

The county health officer has the authority to appoint as well as dismiss employees of the county health department. OAG 69-490 .

A public health nurse is an employee appointed by the county health officer and is considered a county employee even though her compensation is paid by the State Department of Health (now Cabinet for Health and Family Services). OAG 69-694 .

Though a single monetary payment given to certain employees in excess of ordinary compensation by a local health department in consideration of future outstanding performance is legal consideration and is not in violation of Ky. Const., § 3, the payment could violate the merit system governing health department (now cabinet) employees. OAG 75-704 .

212.180. Health officer qualifications.

Every health officer provided for by this chapter shall be a duly licensed physician and shall possess such other qualifications that are prescribed by the Cabinet for Health and Family Services.

History. 2054a-10, 2054a-15, 2054a-21, 2055: amend. Acts 1952, ch. 153, § 6; 1974, ch. 74, Art. VI, § 71; 1998, ch. 426, § 351, effective July 15, 1998; 2005, ch. 99, § 400, effective June 20, 2005.

Opinions of Attorney General.

The State Department of Health (now Cabinet for Health and Family Services), acting through its commissioner (now secretary), is statutorily empowered to set the qualifications to be met by officers and employees of county health departments. OAG 64-425 .

212.190. Health officers — Compensation.

  1. The health officer of counties that do not have a county department of health shall receive a reasonable compensation, the amount of which shall be fixed by the fiscal court at the time of, or immediately after, his election, and to be paid as other county officers are paid. In no case shall such health officer claim or receive from the county any compensation other than the salary fixed by the fiscal court.
  2. The health officer of counties having a county department of health shall receive a salary to be fixed by the county board of health subject to the approval of the Cabinet for Health and Family Services. He shall receive necessary traveling expenses.

History. 2054a-1, 2054a-10, 2054a-15, 2055: amend. Acts 1944, ch. 93; 1954, ch. 209, § 2; 1972, ch. 301, § 19; 1974, ch. 74, Art. VI, § 107(1), (11); 1998, ch. 426, § 352, effective July 15, 1998; 2005, ch. 99, § 401, effective June 20, 2005.

NOTES TO DECISIONS

1.Reasonable Compensation.

Power to fix compensation of physicians, nurses, guards and attendants employed by county board of health during epidemic was in the fiscal court. Walker v. Henderson County, 65 S.W. 15, 23 Ky. L. Rptr. 1267 , 1901 Ky. LEXIS 553 (Ky. Ct. App. 1901).

Payment by fiscal court to county health officer for performing services, including treatment of persons for contagious disease, could not be recovered from him, notwithstanding he did not perform services under order of board but on his own initiative, and hence received pay in an improper way, although law authorized the expenditure. Commonwealth Use Hickman County v. Scarborough, 148 Ky. 561 , 147 S.W. 31, 1912 Ky. LEXIS 496 ( Ky. 1912 ).

2.— County Health Officer.

County health officer, who was appointed to office by county board of health after its reappointment by state board following its prior resignation, was entitled to reasonable compensation for his services despite fact that physician, who had been appointed by fiscal court to manage pesthouse refused, at fiscal court’s direction, to let county health officer assume charge. Walker v. Henderson County, 65 S.W. 15, 23 Ky. L. Rptr. 1267 , 1901 Ky. LEXIS 553 (Ky. Ct. App. 1901).

Fiscal court must allow physician employed by county board of health reasonable compensation whether or not it approves of appointment. Walker v. Henderson County, 65 S.W. 15, 23 Ky. L. Rptr. 1267 , 1901 Ky. LEXIS 553 (Ky. Ct. App. 1901).

Fixing of salary of county health officer before term of office commenced was not binding upon him, but, if he performed extensive services at direction of board in eradicating contagious disease, he could claim adequate pay. Taylor v. Adair County, 119 Ky. 374 , 84 S.W. 299, 27 Ky. L. Rptr. 36 , 1905 Ky. LEXIS 4 ( Ky. 1905 ).

Fiscal court should fix salary of health officer at reasonable amount commensurate with services estimated from past experience and present conditions. Butler County v. Gardner, 96 S.W. 582, 29 Ky. L. Rptr. 922 (1906).

Compensation of $150 annually to county health officer was reasonable where his duties were to supervise health conditions and he had accepted that sum for several years and where added duties sought to be imposed by county board were beyond its jurisdiction. Trabue v. Todd County, 125 Ky. 809 , 102 S.W. 309, 31 Ky. L. Rptr. 332 , 1907 Ky. LEXIS 337 ( Ky. 1907 ).

If county health officer proceeded as directed by statute, failure of fiscal court to fix his compensation in advance would not preclude recovery for reasonable value of services. Hickman County v. Scarborough, 150 Ky. 1 , 149 S.W. 1116, 1912 Ky. LEXIS 824 ( Ky. 1 912).

Petition by county health officer charging that his compensation was unreasonably low and asking that county officers be required to fix reasonable compensation, being in the nature of a mandamus, would not lie, since fiscal court had power to fix compensation and its discretion cannot be controlled by mandamus. Stewart v. Kidd, 262 Ky. 90 , 89 S.W.2d 861, 1936 Ky. LEXIS 2 ( Ky. 1936 ).

3.— Epidemics.

County health officer who was employed almost constantly for a year in eradicating epidemic of smallpox could not recover for services, medicines and supplies to persons able to pay, but only for those supplied to indigents. Hudgins v. Carter County, 115 Ky. 133 , 72 S.W. 730, 24 Ky. L. Rptr. 1980 , 1903 Ky. LEXIS 75 ( Ky. 1903 ).

Presentation of bill by health officer to fiscal court for allowance for services during epidemic is prerequisite to action against county. Hudgins v. Carter County, 115 Ky. 133 , 72 S.W. 730, 24 Ky. L. Rptr. 1980 , 1903 Ky. LEXIS 75 ( Ky. 1903 ).

For necessary services during epidemics, physicians appointed as health officers for cities or counties may be compensated by the councils or county courts where the epidemics occur; but, where patients are able to pay, the physician must look to them for compensation. Laurel County Court v. Pennington, 80 S.W. 820, 26 Ky. L. Rptr. 124 (1904).

In action by physician against county court for compensation for services at request of county board of health during epidemic, burden of proof is upon physician to show insolvency of patients. Laurel County Court v. Pennington, 80 S.W. 820, 26 Ky. L. Rptr. 124 (1904).

Petition by county health officer to recover reasonable compensation for services in treating patients during epidemic was insufficient where it did not show that patients could not pay, whether they were treated at pesthouse or by direction of county board. Taylor v. Adair County, 119 Ky. 374 , 84 S.W. 299, 27 Ky. L. Rptr. 36 , 1905 Ky. LEXIS 4 ( Ky. 1905 ).

4.— Change.

Since county health officer holds office at the pleasure of the board pursuant to KRS 212.170 and not for fixed term, Ky. Const., § 161, providing that compensation of county officer shall not be changed during term, does not apply. Stewart v. Kidd, 262 Ky. 90 , 89 S.W.2d 861, 1936 Ky. LEXIS 2 ( Ky. 1936 ).

5.— Unauthorized Services.

Notwithstanding blanket instructions had been given by county board of health to its health officer to supervise health conditions and prevent spread of disease, health officer could not recover for services which he performed upon his own initiative, and not upon direction of county board, since county need pay only for services performed under direction of board. Hickman County v. Scarborough, 150 Ky. 1 , 149 S.W. 1116, 1912 Ky. LEXIS 824 ( Ky. 1 912).

6.Liability of County.

County board of health was not liable for services of health officer appointed by it to suppress smallpox epidemics in city where cases treated would have come within jurisdiction of city board of health, thus rendering city, and not county, liable for expenses. Bell County v. Blair, 50 S.W. 1104, 21 Ky. L. Rptr. 121 (1899).

City should pay for services of health officer appointed by county board of health to eradicate smallpox epidemic in city where city had no board of health and, by resolution, approved appointment of health officer and selected assistants for him. Blair v. Middlesboro, 67 S.W. 16, 23 Ky. L. Rptr. 2253 (1902).

County board of health, while there is a regularly appointed health officer in charge, may not impose his duties upon another and make county liable for latter’s services. Hickman County v. McMorris, 149 Ky. 1 , 147 S.W. 768, 1912 Ky. LEXIS 565 ( Ky. 1 912).

7.Appeal.

County health officer could appeal to Circuit Court from order of fiscal court fixing his annual salary at $100, where he had applied for allowance of $500. Butler County v. Gardner, 96 S.W. 582, 29 Ky. L. Rptr. 922 (1906).

Salary fixed for health officer must be reasonable and, from an order of the fiscal court fixing salary, appeal lies to Circuit Court and then to Court of Appeals. Hickman County v. McMorris, 149 Ky. 1 , 147 S.W. 768, 1912 Ky. LEXIS 565 ( Ky. 1 912).

If petition in Circuit Court by county health officer, asking that his compensation be fixed higher than as fixed by order of fiscal court, be deemed appeal from that order, it was belated, not having been taken within 60 days after order was made. Stewart v. Kidd, 262 Ky. 90 , 89 S.W.2d 861, 1936 Ky. LEXIS 2 ( Ky. 1936 ).

8.— Evidence.

In action by county health officer to recover compensation for his services where appointment is denied, officer must show organization of board and his appointment by it by records of board unless reason is given for introduction of parol testimony thereof. Henderson County v. Dixon, 63 S.W. 756, 23 Ky. L. Rptr. 1204 (1901).

9.— Extent of Review.

In action by county health officer to recover compensation for his services, jury could consider testimony that officer was physician of good standing and long practice in determining value of services, but criterion of recovery is reasonable compensation. Henderson County v. Dixon, 63 S.W. 756, 23 Ky. L. Rptr. 1204 (1901).

212.200. Assistant health officers. [Repealed.]

Compiler’s Notes.

This section (2054a-1, 2054a-11, 2054a-16) was repealed by Acts 1958, ch. 96, § 10.

212.210. Powers and duties of the Cabinet for Health and Family Services and local health boards.

  1. The Cabinet for Health and Family Services and the local boards of health may examine into all nuisances, sources of filth, and causes of sickness that may, in their opinion, be injurious to the health of the inhabitants in any county in this state, or in any vessel within any harbor or port in any county in this state. Whenever any such nuisance, source of filth, or cause of sickness is found to exist on any private property, or in any vessel within any port or harbor in any county in this state, or upon any watercourse in this state, the Cabinet for Health and Family Services or the local board of health may order, in writing, the owner or occupant thereof, at his own expense, to remove the same within twenty-four (24) hours, or within such reasonable time thereafter as the board may order.
  2. If drinking water used by school children is found to be dangerous to their health, the local board of health or Cabinet for Health and Family Services may order that a supply of pure water be furnished at the expense of the county or city board of education.
  3. If in the opinion of the local board of health or Cabinet for Health and Family Services a school building is constructed in violation of law and is found to be unsanitary or unsafe for the housing of children, the local board of health or Cabinet for Health and Family Services may institute an action in the Circuit Court of the county where the building is situated, and the court, after due hearing and verifying the facts, may order a safe and sanitary school building to be erected within a reasonable time by the county or city board of education in accordance with the laws of the state governing the erection of schoolhouses and the control of disease, and the rules and regulations of the Cabinet for Health and Family Services.
  4. Any local board of health shall, for the purpose of controlling and eradicating rats and other unsanitary nuisances, require the owner or possessor of any building designed for human habitation and containing two (2) or more apartment units, to provide, where a specific area has been designated for the depositing of refuse on the premises, waste receptacles approved by the board. The board may further require that the design, construction, and maintenance of the area in which the waste receptacles are kept meet reasonable standards set by the board.

History. 2054a-14, 2057: amend. Acts 1970, ch. 281, § 1; 1974, ch. 74, Art. VI, § 107(3); 1998, ch. 426, § 353, effective July 15, 1998; 2005, ch. 99, § 402, effective June 20, 2005.

NOTES TO DECISIONS

1.Impure Water.

Although State Board of Health (now Cabinet for Health and Family Services), in abating nuisance, could stop the supply of impure water to a community, it could not direct water company to install particular plant; company could adopt any system which produced pure water. Purnell v. Maysville Water Co., 193 Ky. 85 , 234 S.W. 967, 1921 Ky. LEXIS 189 ( Ky. 1921 ).

State Board of Health (now Cabinet for Health and Family Services) could not order installation of filtration plant by water company where formerly impure water had been rendered pure by sedimentation basin and chlorination. Purnell v. Maysville Water Co., 193 Ky. 85 , 234 S.W. 967, 1921 Ky. LEXIS 189 ( Ky. 1921 ).

2.Abatement of Nuisances.

State Board of Health (now Cabinet for Health and Family Services) may abate any nuisance in state caused by filth which produces sickness; its power is broad but not unlimited and must be exercised with sound discretion and not capriciously. Purnell v. Maysville Water Co., 193 Ky. 85 , 234 S.W. 967, 1921 Ky. LEXIS 189 ( Ky. 1921 ).

County board of health may require persons responsible for unsanitary condition to abate the nuisance under its regulations. Jefferson County v. Jefferson County Fiscal Court, 269 Ky. 535 , 108 S.W.2d 181, 1937 Ky. LEXIS 635 ( Ky. 1937 ).

Requirement that fiscal court maintain health department does not include power to appropriate funds to abate nuisances specifically directed to be discontinued by individuals responsible therefor. Jefferson County v. Jefferson County Fiscal Court, 269 Ky. 535 , 108 S.W.2d 181, 1937 Ky. LEXIS 635 ( Ky. 1937 ).

Since this section did not abrogate the common law concerning nuisances, it was proper to bring charge for offense of maintaining a common nuisance under the common law. Old Lewis Hunter Distillery Co. v. Commonwealth, 273 Ky. 316 , 116 S.W.2d 647, 1938 Ky. LEXIS 635 ( Ky. 1938 ).

3.Regulations.

Legislature may create local boards of health and authorize them to make reasonable regulations for health of community. Board of Health v. Kollman, 156 Ky. 351 , 160 S.W. 1052, 1913 Ky. LEXIS 424 ( Ky. 1913 ).

Cited:

Commonwealth v. Wiman, 308 Ky. 565 , 215 S.W.2d 283, 1948 Ky. LEXIS 1004 ( Ky. 1948 ); Sanitation Dist. v. Campbell, 249 S.W.2d 767, 1952 Ky. LEXIS 860 ( Ky. 1952 ); Radcliff Homes, Inc. v. Jackson, 766 S.W.2d 63, 1989 Ky. App. LEXIS 19 (Ky. Ct. App. 1989).

Opinions of Attorney General.

Although a city-county board of health would be authorized to adopt a regulation requiring the cutting and removal of weeds if the board finds that an accumulation of weeds does in fact constitute a public health nuisance or a health menace, it is not authorized to have the work done and assess the cost against the owner as a property tax. OAG 63-981 .

A local board of health does not have the power to order a water company, private or public, to discontinue water services to a customer who is responsible for a public health nuisance. OAG 63-1078 .

When a local health board acts to abate a nuisance injurious to the public health, it must do so pursuant to the provisions of this section and of KRS 212.245(6) and 212.990(1). OAG 63-1078 .

A local health department is not confined by any statute as to the frequency or bases for inspection of a school building and grounds or facilities. OAG 77-138 .

Despite transfer of the Division of Water Patrol from the Natural Resources and Environmental Protection Cabinet to the Department of Fish and Wildlife, the Natural Resources and Environmental Protection Cabinet retains jurisdiction for enforcement of statutes relating to marine toilets found in KRS Chapter 235. OAG 95-19 .

Research References and Practice Aids

Cross-References.

Foods and drugs, powers and duties of local health boards with respect to, KRS 217.380 .

Hotel and restaurant inspection and regulation, duty of local health boards with respect to, KRS Chapter 219.

Mattresses, manufacture of regulated by local health boards, KRS 214.290 .

Quarantine, actions to prevent introduction and spread of disease within state, KRS 214.020 .

212.220. Powers of city health boards. [Repealed.]

Compiler’s Notes.

This section (2054a-21) was repealed by Acts 1982, ch. 228, § 5, effective July 15, 1982.

212.230. Powers and duties of county, city-county, and district health boards.

  1. County, city-county, and district boards of health shall:
    1. Appoint a health officer and fix his salary subject to the approval of the Cabinet for Health and Family Services;
    2. Hold a regular meeting at least once every three (3) months, except that county or city-county boards whose counties are members of a district health department shall hold a regular meeting at least once every twelve (12) months, and other special or regular meetings as desired and keep full minutes of all the proceedings in a book provided for this purpose;
    3. Adopt, except as otherwise provided by law, administrative regulations not in conflict with the administrative regulations of the Cabinet for Health and Family Services necessary to protect the health of the people or to effectuate the purposes of this chapter or any other law relating to public health;
    4. Act in a general advisory capacity to the health officer on all matters relating to the local department of health;
    5. Provide information regarding the cabinet’s ombudsman to all applicants;
    6. Hear and decide appeals from rulings, decisions, and actions of the local health department or health officer, in accordance with KRS Chapter 13B, if the aggrieved party makes written request therefor to the board within thirty (30) days after the ruling, decision, or action complained of. In hearing appeals regarding on-site wastewater permitting, the local health board shall utilize the expertise of the regional on-site wastewater consultants employed by the Department for Public Health;
    7. Provide all information on on-site wastewater systems to the cabinet for incorporation into the statewide database as provided for in KRS 211.350(1); and
    8. Perform all other functions necessary to carry out the provisions of law and the regulations adopted pursuant thereto, relating to local boards of health; and
  2. Except as otherwise provided in subsection (1), all powers and authority of the local board of health under existing statutes are transferred to the county department of health.

History. 2054a-10, 2054a-15, 2055: amend. Acts 1954, ch. 209, § 3; 1958, ch. 96, § 3; 1974, ch. 74, Art. VI, § 107(1), (3) and (11); 1992, ch. 121, § 2, effective July 14, 1992; 1996, ch. 318, § 117, effective July 15, 1996; 1998, ch. 426, § 354, effective July 15, 1998; 2005, ch. 99, § 403, effective June 20, 2005; 2006, ch. 191, § 3, effective July 12, 2006.

NOTES TO DECISIONS

1.Regulatory Powers.

County boards of health cannot adopt unreasonable or arbitrary regulations or, without cause, harass public, or needlessly subject individuals to expense or inconvenience, unless there is reasonable ground to believe that action is needed to prevent or suppress disease. Board of Trustees v. McMurtry, 169 Ky. 457 , 184 S.W. 390, 1916 Ky. LEXIS 720 ( Ky. 1916 ).

Local boards of health may, under statute, exercise authority conferred upon them without asking advice or consent of state board (now Cabinet for Health and Family Services). Board of Trustees v. McMurtry, 169 Ky. 457 , 184 S.W. 390, 1916 Ky. LEXIS 720 ( Ky. 1916 ).

Under this section the Boone County board of health is authorized to adopt a regulation providing that no private sewage disposal system be installed without a permit having been first obtained from the Boone County health department prohibiting private systems on property abutting a public system and requiring that in the event that a public system becomes available, abutting property shall be connected. Barnes v. Jacobsen, 417 S.W.2d 224, 1967 Ky. LEXIS 247 ( Ky. 1967 ).

Smoking regulation promulgated by the Bullitt County, Kentucky, Board of Health was improperly declared to be invalid because the Board had the authority to regulate under KRS 212.230(1)(c), and there was no violation of Ky. Const. §§ 27, 28. Protecting the public from exposure to environmental tobacco smoke was the proper object of the police power of local government. Bullitt County Bd. of Health v. Bullitt County Fiscal Court, 2012 Ky. App. LEXIS 273 (Ky. Ct. App., sub. op., 2012 Ky. App. Unpub. LEXIS 1067 (Ky. Ct. App. Dec. 7, 2012).

2.Vaccination.

County board of health was authorized to direct that all children attending a certain public school be vaccinated or denied privilege of attending school, where epidemic justified reasonable apprehension of outbreak of smallpox and that vaccination was only means of prevention. Board of Trustees v. McMurtry, 169 Ky. 457 , 184 S.W. 390, 1916 Ky. LEXIS 720 ( Ky. 1916 ).

Effort of county board of health to enforce rule of state board (now Cabinet for Health and Family Services) requiring teachers and students in school to be vaccinated was reasonable in view of medical evidence that there had been numerous outbreaks of smallpox in county during past years. Hill v. Bickers, 171 Ky. 703 , 188 S.W. 766, 1916 Ky. LEXIS 412 ( Ky. 1916 ).

3.Expenses.

Liability for expenses in quarantining smallpox case incurred by city at instance of county board of health was payable by fiscal court and not by city, notwithstanding board more properly should have called upon fiscal court for aid. City of Bardstown v. Nelson County, 78 S.W. 169, 25 Ky. L. Rptr. 1478 (1904).

4.Reappointed Board.

County board of health, after its reappointment by state board (now Cabinet for Health and Family Services) could compel fiscal court, which had assumed control of pesthouse when members of board and physicians employed at pesthouse resigned, to deliver to board control of pesthouse and patients therein. Henderson County Board of Health v. Ward, 107 Ky. 477 , 54 S.W. 725, 21 Ky. L. Rptr. 1193 , 1900 Ky. LEXIS 121 ( Ky. 1900 ).

Upon its reappointment by state board (now Cabinet for Health and Family Services) following its resignation, county board of health could resume charge of epidemic, employ physicians to treat patients at pesthouse and discharge employees formerly hired by fiscal court. Walker v. Henderson County, 65 S.W. 15, 23 Ky. L. Rptr. 1267 , 1901 Ky. LEXIS 553 (Ky. Ct. App. 1901).

5.Liability for Damages.

County board of health was not liable for damages caused by fumigating store, where board had established quarantine against town having smallpox epidemic in favor of adjoining town, but owner of store took her child from quarantined town to adjoining town, changed his clothes in store and lived on premises until moved back to quarantined town. Allison v. Cash, 143 Ky. 679 , 137 S.W. 245, 1911 Ky. LEXIS 497 ( Ky. 1911 ).

6.Employment of Personnel.

Power to determine what physicians, nurses, guards and attendants should be employed during epidemic rests in discretion of county board of health. Walker v. Henderson County, 65 S.W. 15, 23 Ky. L. Rptr. 1267 , 1901 Ky. LEXIS 553 (Ky. Ct. App. 1901).

7.Delegation of Authority.

County board of health could not delegate general authority to health officer upon appointment to look after epidemics and make necessary inspections and visitations, but must act upon each case or epidemic as it arises, determining necessities of each situation from existing facts. Taylor v. Adair County, 119 Ky. 374 , 84 S.W. 299, 27 Ky. L. Rptr. 36 , 1905 Ky. LEXIS 4 ( Ky. 1905 ).

Resolution of county board of health in placing all contagious and infectious diseases in sole control of county health officer to exclusion of all others was beyond its jurisdiction. Trabue v. Todd County, 125 Ky. 809 , 102 S.W. 309, 31 Ky. L. Rptr. 332 , 1907 Ky. LEXIS 337 ( Ky. 1907 ).

8.Control by Courts.

Courts have jurisdiction to restrain boards of health if they undertake to exert authority not fairly within powers statutorily conferred or unnecessary to protect public health or prevent infectious or contagious diseases. Board of Trustees v. McMurtry, 169 Ky. 457 , 184 S.W. 390, 1916 Ky. LEXIS 720 ( Ky. 1916 ).

9.Appeal.

Where the board of health recommended limited approval for the subdivision on the basis of soil and percolation tests and where nearby property owners contended that such tests were not accurate but failed to appeal pursuant to this section, the property owners were barred from raising that issue before the Court of Appeals. Kannapell v. Dulworth, 497 S.W.2d 718, 1973 Ky. LEXIS 366 ( Ky. 1973 ).

Cited:

Jefferson County v. Jefferson County Fiscal Court, 269 Ky. 535 , 108 S.W.2d 181, 1937 Ky. LEXIS 635 ( Ky. 1937 ).

Opinions of Attorney General.

Although a city-county board of health would be authorized to adopt a regulation requiring the cutting and removal of weeds if the board finds that an accumulation of weeds does in fact constitute a public health nuisance or a health menace, it is not authorized to have the work done and assess the cost against the owner as a property tax. OAG 63-981 .

If the regulation stating that no person could build a dwelling house on a lot containing less than 10,000 square feet passed by the county board of health was passed with the reason being to prevent future nuisances arising from inadequate septic facilities or inadequate drainage areas and was considered by the local board in light of what would probably create nuisances within their jurisdiction, the regulation is valid and fully within the power of the local board. OAG 64-338 .

A public health nurse is an employee appointed by the county health officer and is considered a county employee even though her compensation is paid by the State Department of Health (now Cabinet for Health and Family Services). OAG 69-694 .

The county clerk cannot refuse to file or record subdivision plats that have not first received the approval of the county health department even though the health department passed a regulation requiring such approval. OAG 70-279 .

A sewer district established pursuant to the provisions of KRS Chapter 220 could compel connection to its public sewer system by the sanitation district board’s passage of regulations compelling connection to its public sewer system and such board would be responsible for implementing and enforcing such regulations. OAG 73-55 .

The county health department does not come under the term “administrative body” as defined in KRS 13.080 (now repealed) and its regulations are not subject to the provisions of KRS 13.080 to 13.125 (now repealed). OAG 74-595 .

A county board of health regulation limiting, with certain exceptions, the installation of septic tanks to lots of ten acres is not invalid because its primary purpose is to prevent further urbanization of the county and the protection of public health is only a secondary consideration since an otherwise valid regulation exercising a proper public power is not invalid by reason of the motives which produced it. OAG 75-64 .

A county board of health regulation prohibiting the installation of septic tanks on lots of less than ten acres unless soil percolation tests demonstrate that a smaller lot will properly accommodate a septic tank system or the lot is of record prior to the effective date of the regulation is valid as a reasonable exercise of the police power to regulate matters affecting the public health, as constitutionally delegated to the county boards of health by this section, providing the topographical and geological formations of and under the county are such that generally a drainage area of ten acres is required for the safe use of a septic tank and providing the exemption of lots already of record rests on some reasonable basis and does not frustrate the purpose of the regulation as would be the case if, for example, it could be proven that the installation and use of septic tanks on all lots of record would cause a threat to public health. OAG 75-64 .

Where the existing county board of health regulations are not complied with prior to the enactment of new regulations no rights are obtained under the existing regulations and, although the new county board of health regulations contain no retroactive provisions, they are applicable to work started without complying with the existing regulations but not finished prior to the effective date of the new regulations. OAG 75-595 .

It is a reasonable policy of the health department to not permit its health nurse to come to a school to offer medical assistance. OAG 77-138 .

Farms are not exempt from compliance with regulations enacted by a county board of health pursuant to subsection (1)(c) of this section. OAG 78-667 .

Research References and Practice Aids

Cross-References.

Communicable diseases, KRS Chapter 214.

212.240. Duties of county health departments.

County departments of health shall:

  1. Administer and enforce in the county and in all cities and towns situated therein, except as otherwise provided by law, all applicable public health laws of the Commonwealth and all of the rules and regulations of the secretary of the Cabinet for Health and Family Services and county board of health issued thereunder;
  2. Under the general supervision of the county board of health and the Cabinet for Health and Family Services, formulate, promote, establish, and execute policies, plans, and programs to safeguard the health of the people of the county and establish, maintain, implement, promote, and conduct facilities and services for the purpose of protecting the public health; and
  3. Make such statistical or other reports relating to the activities of the department as they may deem expedient or as may be required by the county board of health or the Cabinet for Health and Family Services.

History. 2054a-10, 2054a-15: amend. Acts 1954, ch. 209, § 4; 1974, ch. 74, Art. VI, § 107(1), (3) and (11); 1998, ch. 426, § 355, effective July 15, 1998; 2005, ch. 99, § 404, effective June 20, 2005.

Opinions of Attorney General.

The operation of a county health department is not a use of land for commercial purposes and such operation would not violate a deed containing a restriction against commercial use. OAG 61-1025 .

Although a city-county board of health would be authorized to adopt a regulation requiring the cutting and removal of weeds if the board finds that an accumulation of weeds does in fact constitute a public health nuisance or a health menace, it is not authorized to have the work done and assess the cost against the owner as a property tax. OAG 63-981 .

While this section and KRS 212.160 charge the county board of health with general authority and responsibility for the proper condition of its facilities, when a structure is built with funds obtained on the application of the fiscal court under the Hill-Burton act, the fiscal court has the primary responsibility for upkeep and maintenance of the building. OAG 68-145 .

The Bureau for Health Services (now Cabinet for Health and Family Services) must enforce an ordinance of a county fiscal court establishing a compulsory and continual solid waste collection and disposal system or it must supervise and assist the county health department in its enforcement of the ordinance. OAG 74-594 .

It is the duty of a county health department under this section to obtain warrants against citizens who fail to comply with a county fiscal court ordinance establishing a compulsory and continual solid waste collection and disposal system by not subscribing to the system. OAG 74-594 .

It is a reasonable policy of the health department to not permit its health nurse to come to a school to offer medical assistance. OAG 77-138 .

212.245. Powers of local health departments.

County, city-county, and district health departments may:

  1. Utilize available services, facilities, equipment, and personnel of the Cabinet for Health and Family Services or of the United States Public Health Service upon such terms of payment or reimbursement as are agreed on by the department and the Cabinet for Health and Family Services or the United States Public Health Service;
  2. Contract for services not otherwise available;
  3. Provide for the public health training and instruction of employees and compensate and defray the reasonable expenses of said employees while they are pursuing public health training courses approved by the Cabinet for Health and Family Services;
  4. Establish or contribute to a retirement system or fund for employees of the department, including any retirement system for state employees;
  5. Issue and require the heads of families and other persons to execute such orders as it considers expedient to prevent the outbreak and spread of communicable diseases, and to this end bring the infected population under prompt and proper treatment;
  6. Issue written orders directed to the owner or occupant of any property, or to any person, firm, or corporation whatever, commanding, within the time and manner specified in the order, compliance with applicable public health laws of this state and all regulations of the Cabinet for Health and Family Services or the county board of health. Notwithstanding the provisions of this section and KRS 212.210 , any health officer may institute and maintain mandatory or prohibitory injunction proceedings in the appropriate Circuit Courts of this state to abate nuisances that are or may be a menace to the health of the people of the state or community, and to compel compliance with the public health laws of this state and the rules and regulations of the Cabinet for Health and Family Services and the county board of health and the orders described in this section or in KRS 212.210 ;
  7. Through its health officers, representatives, and agents, enter upon any premises when necessary for the purpose of making inspections and investigations and view evidence and interrogate persons to the extent required in the performance of their duties and responsibilities. The department or the health officer thereof may issue subpoenas, subpoena duces tecum, and all necessary process in proceedings brought before or initiated by the department or board, and such process shall extend to all parts of the Commonwealth. Service of process may be made by certified mail, return receipt requested, or in the manner prescribed by the Rules of Civil Procedure;
  8. Provide administrative, investigative, and clerical services required by the local board of health;
  9. Cooperate with other health departments, agencies, and organizations in matters relating to public health;
  10. Elect coverage under the state’s workers’ compensation laws with the approval of the Cabinet for Health and Family Services; or
  11. Except as otherwise provided by law, do all other things reasonably necessary to protect and improve the health of the people.

History. Enact. Acts 1954, ch. 209, § 5; 1958, ch. 96, § 4; 1974, ch. 74, Art. VI, § 107(1), (11); 1974, ch. 315, § 29; 1980, ch. 114, § 42, effective July 15, 1980; 1998, ch. 426, § 356, effective July 15, 1998; 2005, ch. 99, § 405, effective June 20, 2005.

NOTES TO DECISIONS

1.Enforcement of Health Regulations.

Urban County board of health did not have authority to enforce local health regulations against a state university. Lexington-Fayette Urban County Bd. of Health v. Board of Trustees of the Univ. of Ky., 879 S.W.2d 485, 1994 Ky. LEXIS 79 ( Ky. 1994 ).

Opinions of Attorney General.

A local board of health does not have the power to order a water company, private or public, to discontinue water services to a customer who is responsible for a public health nuisance. OAG 63-1078 .

When a local health board acts to abate a nuisance injurious to the public health, it must do so pursuant to the provisions of KRS 212.210 , 212.990(1) and subsection (6) of this section. OAG 63-1078 .

A city of the second class could contract for mental health services with the Eastern Kentucky mental health association, a nonprofit corporation. OAG 64-40 .

A local health department could engage in a contract with the Falls Region Health Council, Inc., for health planning services to be performed by the corporation for the benefit of the particular county health department, but such contract would be subject to the approval of the State Department of Health (now Cabinet for Health and Family Services). OAG 69-561 .

Administrative searches of the kind contemplated by this section require a search warrant as they represent an intrusion on interests protected by Ky. Const., § 10 and the 14th Amendment to the U.S. Constitution. OAG 76-20 .

The board or department has authority to order a school to correct the unsanitary conditions existing on school property, to order the school closed, and to institute legal action against the school system, whereas the administrator does not have the authority but may only act in the name of and under the authority of the local board or department of health. OAG 78-635 .

Although a district health department does not appear to have the power to tax under KRS 212.720 to 212.760 , it does have sufficient police power under this section and KRS 212.890 to qualify it as a political subdivision for purposes of 28 USCS § 103; accordingly, the interest paid by a department on a loan with a local bank would be exempt from federal income tax. OAG 81-342 .

The Cabinet for Human Resources (now Health and Family Services) has full statutory authority to establish a policy requiring a local health department to perform accounting and payroll functions through a centralized system operated by the Cabinet. OAG 92-8 .

212.250. Powers and duties of all health officers and public health nurses. [Repealed.]

Compiler’s Notes.

This section (216aa-49, 2054, 2054a-14) was repealed by Acts 1954, ch. 209, § 10.

212.260. Powers and duties of local health officers.

  1. The health officer of a county that does not have a county department of health shall enforce the rules and regulations of the Cabinet for Health and Family Services and county boards of health.
  2. The health officer of a county that has formed a county department of health shall:
    1. Devote his entire time to the duties of his office, and shall not engage in the private practice of medicine;
    2. Be secretary of the county board of health and keep full minutes of the proceedings of the county board of health in a book provided for that purpose;
    3. Be the chief administrative officer of the county health department.

History. 2054a-10, 2054a-12, 2054a-13, 2054a-21, 2055: amend. Acts 1954, ch. 209, § 6; 1958, ch. 96, § 5; 1972, ch. 301, § 20; 1974, ch. 74, Art. VI, § 72; 1998, ch. 426, § 357, effective July 15, 1998; 2005, ch. 99, § 406, effective June 20, 2005.

NOTES TO DECISIONS

1.Full-time Office.

The county health officer shall devote full time to the duties of his office and shall not practice his profession for compensation. Nichols v. Marks, 308 Ky. 863 , 215 S.W.2d 1000, 1948 Ky. LEXIS 1063 ( Ky. 1948 ).

2.Agent and Executive Officer.

County health officer is primarily agent and executive officer of local board and chargeable with enforcing regulations of state or county board within scope of their statutory powers. Board of Trustees v. McMurtry, 169 Ky. 457 , 184 S.W. 390, 1916 Ky. LEXIS 720 ( Ky. 1916 ).

3.Duties.

Ordinary duties of county health officer, for which he receives yearly salary, are largely executory and supervisory, in seeing that regulations of state board are enforced. Breckenridge County v. McDonald, 154 Ky. 721 , 159 S.W. 549, 1913 Ky. LEXIS 150 ( Ky. 1913 ).

The county health officer has duty to take general superintendance of all contagious diseases, to institute quarantine and fumigate premises; to carry out general purposes, county board of health may employ other physicians, nurses, guards and attendants required to administer treatment and eradicate disease. Breckenridge County v. McDonald, 154 Ky. 721 , 159 S.W. 549, 1913 Ky. LEXIS 150 ( Ky. 1913 ).

Research References and Practice Aids

Cross-References.

Boarding and lodging homes for children, licensing and inspection by county health officer, KRS 199.380 to 199.410 .

Foods and drugs, powers and duties of local health officers with respect to, KRS 217.380 .

Registrar of vital statistics for each registration district of county, how appointed, KRS 213.036 .

212.270. Attorneys to represent Cabinet for Health and Family Services and local boards of health.

The county and Commonwealth’s attorneys and the Attorney General, within their respective jurisdictions, shall represent the Cabinet for Health and Family Services and local boards of health in all matters relating to the enforcement of the health and medical laws and the performance of the duties of those boards, but when the secretary for health and family services deems it necessary, it may employ at its discretion special attorneys and inspectors to assist the county and Commonwealth’s attorneys or the Attorney General and may pay reasonable compensation for the same from any unexpended funds at its disposal.

History. 2054a-19: amend. Acts 1974, ch. 74, Art. VI, § 73; 1998, ch. 426, § 358, effective July 15, 1998; 2005, ch. 99, § 407, effective June 20, 2005.

NOTES TO DECISIONS

Cited:

Johnson v. Commonwealth, 291 Ky. 829 , 165 S.W.2d 820, 1942 Ky. LEXIS 329 ( Ky. 1942 ).

Research References and Practice Aids

Cross-References.

Attorneys for state agencies, employment of, KRS 12.210 .

Kentucky Law Journal.

Underwood, Part-Time Prosecutors and Conflicts of Interest: A Survey and Some Proposals, 81 Ky. L.J. 1 (1993).

212.275. Distribution of nonscheduled legend drugs at health department by advanced practice registered nurse or registered nurse — Written policy — Record of prescription drugs — Responsibility for inventory — Pharmacist — Dispensing medication or device prescribed for purpose of causing abortion.

  1. The governing board for each local, district, and independent health department shall have a written policy concerning the distribution of nonscheduled legend drugs at the health department by an advanced practice registered nurse or a registered nurse. In a health department, an advanced practice registered nurse or a registered nurse may distribute nonscheduled legend drugs from a list that has been prepared by the commissioner of the Department for Public Health. Nothing in this section shall be construed to limit advanced practice registered nurses from dispensing nonscheduled drug samples under KRS 314.011 . Each prescription drug distributed or dispensed at the health department shall be recorded in the patient record. The director of each health department shall be responsible for keeping track of the inventory of stock medications and accounting for the medications dispensed or distributed.
  2. Only a health department board having within its membership a pharmacist holding a valid license issued pursuant to KRS 315.030 shall be authorized to permit advanced practice registered nurses or registered nurses to dispense nonscheduled legend drugs according to the written policy of the board. If a health department is unable to recruit a licensed pharmacist to serve on the board, the board shall document consultation with a pharmacist licensed pursuant to KRS 315.030 in the public health practice of the health department.
  3. No health department shall dispense any medication or device prescribed for the purpose of causing an abortion as defined in KRS 311.720(1).

History. Enact. Acts 2002, ch. 80, § 1, effective July 15, 2002; 2010, ch. 85, § 37, effective July 15, 2010.

212.280. Organizations employing visiting nurse entitled to state aid — Supervision by State Board of Health. [Repealed.]

Compiler’s Notes.

This section (4711c-1, 4711c-2, 4711c-3) was repealed by Acts 1958, ch. 96, § 10.

212.290. Maximum amount of state aid — How paid. [Repealed.]

Compiler’s Notes.

This section (4711c-4) was repealed by Acts 1958, ch. 96, § 10.

212.300. Bond to secure proper use of appropriations — Approval of Auditor. [Repealed.]

Compiler’s Notes.

This section (4711c-5) was repealed by Acts 1958, ch. 96, § 10.

212.310. Annual report. [Repealed.]

Compiler’s Notes.

This section (4711c-6) was repealed by Acts 1958, ch. 96, § 10.

212.320. Records open to inspection — Visitation by State Board of Health. [Repealed.]

Compiler’s Notes.

This section (4711c-7) was repealed by Acts 1958, ch. 96, § 10.

212.330. Duties of visiting nurse. [Repealed.]

Compiler’s Notes.

This section (4711c-2) was repealed by Acts 1958, ch. 96, § 10.

212.340. When nurse to act under orders of State Board of Health — Aid conditioned on performance of duties. [Repealed.]

Compiler’s Notes.

This section (4711c-8) was repealed by Acts 1958, ch. 96, § 10.

Nontherapeutic Sterilization

212.341. Definitions.

As used in KRS 212.343 to 212.347 , unless the text requires otherwise:

  1. “Sterilization” shall mean any procedure or operation, the purpose of which is to render an individual permanently incapable of reproducing.
  2. “Nontherapeutic sterilization” shall mean any procedure or operation, the purpose of which is to render an individual permanently incapable of reproducing and which is not either:
    1. A necessary part of the treatment of an existing physical illness or injury, or
    2. Medically indicated as an accompaniment of an operation on the female genitourinary tract.

History. Enact. Acts 1974, ch. 352, § 2.

212.343. Counseling by physician.

Any physician who is requested to perform a nontherapeutic sterilization shall provide counseling to the person who requests the sterilization.

History. Enact. Acts 1974, ch. 352, § 3.

212.345. Consent document — Endorsement.

Before any person in the Commonwealth may have a nontherapeutic sterilization performed upon himself, he shall give written informed consent to the performance of the sterilization. To be valid such consent document shall be endorsed by the following persons in the following instances:

  1. By the consenting individual in all cases; or
  2. By the adult parent or guardian of the consenting individual if such be a minor child and unmarried.

History. Enact. Acts 1974, ch. 352, § 4; 1982, ch. 141, § 73, effective July 1, 1982.

Compiler’s Notes.

This section was amended by § 77 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

Research References and Practice Aids

Kentucky Law Journal.

Leibson, Legal Malpractice Cases: Special Problems in Identifying Issues of Law and Fact and in the Use of Expert Testimony, 75 Ky. L.J. 1 (1986-87).

212.347. Waiting period required.

No physician shall perform a nontherapeutic sterilization on any person before twenty-four (24) hours following the giving of written informed consent by the person requesting such sterilization.

History. Enact. Acts 1974, ch. 352, § 5.

County Containing First-Class City

212.350. Creation of city-county board of health for cities of first class and counties containing such cities — Corporate powers — Abolishment of former health agencies — Effect of compact — Application upon establishment of consolidated local government.

  1. In each county of the Commonwealth of Kentucky in which there is located a city of the first class or a consolidated local government, there is hereby created a board of health which board shall be a body politic and corporate, and shall be known as the “ . . . . .  (name of city of the first class) and  . . . . .  (name of county) or  . . . . .  (name of the consolidated local government) County Board of Health” hereinafter called the “board,” which board shall have jurisdiction throughout such county, including all municipalities in said county with respect to and in accordance with the provisions of KRS 212.350 to 212.620 . Wherever the words “city” and “mayor” are used in KRS 212.350 to 212.620 they shall mean such city of the first class or consolidated local government, and the mayor thereof. Said board may, in its corporate name, sue and be sued, contract and be contracted with, and acquire real, personal and mixed property by deed, purchase, gift, devise, lease, condemnation, or otherwise, and dispose of same; and may make appropriate rules and regulations and do all things reasonable or necessary effectively to carry out the work and properly to perform the duties intended or required by KRS 212.350 to 212.620. When and after the board herein created is organized as herein provided, and except as otherwise provided by law, said board shall succeed to and be vested with all of the functions, obligations, powers, and duties now being exercised by the county board of health, any department of public health, and by any board of tuberculosis hospital in such county; and thereupon the board of health and the department of health and the board of tuberculosis hospital shall cease to exist, and all laws and amendments of said laws, relating to and governing the aforesaid county board of health, department of public health, and board of tuberculosis hospital, in conflict with the provisions of KRS 212.350 to 212.620, shall, to the extent of such conflict, stand and be repealed.
  2. Notwithstanding KRS 212.350 to 212.625 , when a city of the first class and a county containing such city have in effect a compact under KRS 79.310 to 79.330 , the county and such city of the first class shall agree that the county shall provide all staff support, including a director of health, to the board of health through county officers, assistants, clerks, deputies, and employees. In such case, all officers, employees, and staff of the board of health and the department of health shall be deemed county employees, and shall be subject to the control of fiscal court. At the time the compact takes effect the officers, employees, and staff of the board of health and the department of health shall be transferred to the service of county government; provided that all such employees who at such time are in the classified service shall be continued in a classified service administered by county government. All functions, obligations, powers, and duties now vested in the board of health shall continue to be vested in the board unless changed by ordinance of the fiscal court of such county. Upon the establishment of a consolidated local government in a county where a city of the first class and a county containing that city have had in effect a cooperative compact pursuant to KRS 79.310 to 79.330 , the requirements of this subsection pertaining to county government shall be assumed by the consolidated local government.

History. Enact. Acts 1942, ch. 41, § 1; 1986, ch. 77, § 22, effective July 15, 1986; 2002, ch. 346, § 203, effective July 15, 2002.

NOTES TO DECISIONS

1.Governmental Immunity.

The Louisville and Jefferson County Board of Health is a municipal corporation and consequently cannot claim governmental immunity. Stephenson v. Louisville & Jefferson County Board of Health, 389 S.W.2d 637, 1965 Ky. LEXIS 391 ( Ky. 1965 ).

Cited:

Fries v. United States, 76 F. Supp. 396, 1948 U.S. Dist. LEXIS 2841 (D. Ky. 1948 ), aff’d, 170 F.2d 726, 1948 U.S. App. LEXIS 3226 (6th Cir. 1948); Louisville v. National Carbide Corp., 81 F. Supp. 177, 1948 U.S. Dist. LEXIS 1852 (D. Ky. 1948 ); Henry v. Parrish, 307 Ky. 559 , 211 S.W.2d 418, 1948 Ky. LEXIS 764 (Ky. 1948); Louisville & Jefferson County Board of Health v. Steinfeld, 308 Ky. 824 , 215 S.W.2d 1011, 1948 Ky. LEXIS 1066 (Ky. 1948); Sanitation Dist. v. Campbell, 249 S.W.2d 767, 1952 Ky. LEXIS 860 ( Ky. 1952 ); Ashland-Boyd County City-County Health Dep’t v. Riggs, 252 S.W.2d 922, 1952 Ky. LEXIS 1049 ( Ky. 1952 ); Kesselring v. Louisville, 257 S.W.2d 596, 1953 Ky. LEXIS 800 ( Ky. 1953 ).

Opinions of Attorney General.

There is no statutory or constitutional incompatibility in membership on a city-county board of health and membership on the city board of aldermen. OAG 62-684 .

212.360. Transfer of property of former health agencies to city-county or consolidated local government board — Extension of control of board to other divisions and institutions.

  1. All property, real, personal, and mixed, belonging to such county or city and now being used exclusively and directly by and for the county board of health of such county and the department of public health of such city, in the performance of duties connected with the maintenance of the public health, including but without being limited thereto city or county hospitals, public health clinics, all the equipment in such institutions, and all other property of every character or description now used in public health work in and by said city and county organizations, and all property, real, personal, and mixed, belonging to any board of tuberculosis hospital in such county, is hereby transferred to said board created under KRS 212.350 , and said city, county, and board of tuberculosis hospital shall take all necessary and proper steps to effect the legal transfer of title and possession of all such property to said board. All deeds to such property shall be recorded in the county where the property is located. Said board shall assume all existing liabilities of said board of tuberculosis hospital and shall liquidate such liabilities in the same manner and on the same terms as would have been done by said board of tuberculosis hospital.
  2. In the event that it is deemed desirable or advisable by the city, county, and board that any other division of the city or county or any other governmental agency, including any institution, should be taken over and placed under the control and management and supervision of the board, then and in that event, such division, agency, or institution may be taken over under such terms and conditions as to its management, operation, and maintenance as the said city, by ordinance, the said county and the board, by respective resolutions and agreements, may authorize and direct.
  3. Upon the establishment of a consolidated local government in a county having a board of health previously formed by the city and county, all property, real, personal, and mixed, belonging to the board of health shall remain the property of the board of health as renamed under KRS 212.350 .

History. Enact. Acts 1942, ch. 41, § 1; 2002, ch. 346, § 204, effective July 15, 2002.

NOTES TO DECISIONS

Cited:

Henry v. Parrish, 307 Ky. 559 , 211 S.W.2d 418, 1948 Ky. LEXIS 764 ( Ky. 1948 ); Stephenson v. Louisville & Jefferson County Board of Health, 389 S.W.2d 637, 1965 Ky. LEXIS 391 ( Ky. 1965 ).

212.370. Powers and duties of city-county board as to public health and institutions.

When the board has been organized and the properties transferred, as provided in KRS 212.350 to 212.620 , the board, throughout said county, including all municipalities therein, shall, except as otherwise provided by law, have exclusive control and operation, under the acts of the General Assembly of Kentucky, the ordinances, if any, of the legislative bodies of the municipalities in said county, the orders and resolutions, if any, of the fiscal court of said county, the regulations of the Cabinet for Health and Family Services, and the rules and regulations of the board, of all matters relating to institutions safeguarding the public health, including city or county hospitals, tuberculosis hospitals, eruptive hospitals, chronic hospitals, medical care of the indigent, and all other matters affecting public health, including education of the public regarding such conditions, and the adoption of remedial measures, and the enforcement of all laws and regulations affecting public health, including existing ordinances of such city and, if any, of other municipalities in said county, and any ordinances which may be hereafter enacted by the legislative bodies of such municipalities, including laws and ordinances regulating sanitation, milk inspection, meat inspection, livestock inspection, wells, drinking water and fountains, vaults, vaccination and immunization, quarantine, and the maintenance of laboratories and clinics necessary for the promotion of public health. The board may expend funds for the purpose of conducting research work, including laboratory and biometrical work, and establishing, erecting, and maintaining laboratories and other buildings and all appurtenances thereto for research work as to the prevalence, causes, cure, and prevention of disease, and to that end the board is authorized to expend funds in the employment of such persons or organizations, scientists, or research experts as the board may deem proper. The board shall be charged with the responsibility for the collection from official and other sources and for the publication of such statistics and information as may be useful and necessary for the performance of its duties, and upon such other matters as such municipalities by ordinance and said county, by resolution of the fiscal court, respectively, or the Cabinet for Health and Family Services of Kentucky, by regulation, place under the control of said board. The board may charge reasonable fees to sewage treatment plant operators for the regulation and inspection of sewage treatment plants to be paid within twelve (12) months from the time of regulation and inspection.

History. Enact. Acts 1942, ch. 41, § 2; 1974, ch. 74, § 107(3); 1974, ch. 351, § 1; 1998, ch. 426, § 359, effective July 15, 1998; 2005, ch. 99, § 408, effective June 20, 2005.

NOTES TO DECISIONS

1.Swimming Pools.

Although the statute does not specifically grant authority to control the safety of swimming pools, the safety of those using swimming pools is so closely interrelated with the health problems involved that reasonable regulations concerning lifeguards must be held to be within the scope of the granted administrative power. Adams, Inc. v. Louisville & Jefferson County Board of Health, 439 S.W.2d 586, 1969 Ky. LEXIS 374 ( Ky. 1969 ).

It is immaterial whether a pool is open to all members of the public or a special segment thereof, for it is the health welfare of the community which is significant in the exercise of the police power. Adams, Inc. v. Louisville & Jefferson County Board of Health, 439 S.W.2d 586, 1969 Ky. LEXIS 374 ( Ky. 1969 ).

2.— Standards.

While all swimming pools may present some common health hazards which would reasonably require the same regulatory safeguards, in certain areas the dissimilarity in prevailing conditions would make the application of a single standard inappropriate, unrealistic and unreasonable. Adams, Inc. v. Louisville & Jefferson County Board of Health, 439 S.W.2d 586, 1969 Ky. LEXIS 374 ( Ky. 1969 ).

3.— Public Interest.

The question of authority to regulate swimming pools is not determined by whether a pool is public or private but whether, from the standpoint of health and safety, there is a recognizable public interest in their operation which would justify the exercise of the police power of regulation. Adams, Inc. v. Louisville & Jefferson County Board of Health, 439 S.W.2d 586, 1969 Ky. LEXIS 374 ( Ky. 1969 ).

4.— Regulations.

Although state and local administrative agencies have authority to promulgate regulations applicable to swimming pools owned by landlords for the use of tenants which are within the general area of public health and safety, not all regulations are necessarily valid as to such owners. Adams, Inc. v. Louisville & Jefferson County Board of Health, 439 S.W.2d 586, 1969 Ky. LEXIS 374 ( Ky. 1969 ).

Where a regulation required that a lifeguard be on duty at all times the pool was available for use, as applied to all pools, the burden of the regulation greatly outweighed the reasonably necessary safety objective sought and the regulation was invalid. Adams, Inc. v. Louisville & Jefferson County Board of Health, 439 S.W.2d 586, 1969 Ky. LEXIS 374 ( Ky. 1969 ).

5.— Invalid Regulation.

Regulations applying to all pool owners requiring an attendant to check bathers for showers, requiring separate entrances and exits for men and women and requiring each bather to pass through a communal shower room before entering the pool was too broad and therefore invalid. Adams, Inc. v. Louisville & Jefferson County Board of Health, 439 S.W.2d 586, 1969 Ky. LEXIS 374 ( Ky. 1969 ).

6.— For Use of Tenants.

Regulations pertaining to safety requirements were not invalid on the ground that the legislature or the administrative agencies lacked the police power to prescribe reasonable health and safety rules encompassing pools built by landlords for the use of their tenants. Adams, Inc. v. Louisville & Jefferson County Board of Health, 439 S.W.2d 586, 1969 Ky. LEXIS 374 ( Ky. 1969 ).

7.Food Permit.

KRS 212.350 to 212.630 (now KRS 212.350 to 212.620 ) do not confer on city-county health board the power to exact, by regulation, a permit fee from food establishments to defray cost of inspection and regulation. The board must depend on appropriated funds and has no power to finance its own activities, regardless of need. Henry v. Parrish, 307 Ky. 559 , 211 S.W.2d 418, 1948 Ky. LEXIS 764 ( Ky. 1948 ).

8.Meetings Outside State.

This section authorizes the board to expend funds for the purpose of conducting research work and it is charged with the responsibility for the publication, from official and other sources, of such statistics and information as may be useful in the performance of its duties and implies that the board may bear the expense of its officers and employees in attending medical meetings outside of the state where such research information and statistics may be found. Louisville & Jefferson County Board of Health v. Steinfeld, 308 Ky. 824 , 215 S.W.2d 1011, 1948 Ky. LEXIS 1066 ( Ky. 1948 ).

9.Housing Regulations.

Regulations adopted by the county board of health providing for minimum standards for habitable housing were valid and reasonably necessary to protect the health and welfare of the inhabitants where they provided for “due process of law” and they were within the framework of the enabling legislation. Louisville & Jefferson County Board of Health v. Haunz, 451 S.W.2d 407, 1969 Ky. LEXIS 16 ( Ky. 1969 ).

Cited:

Louisville v. National Carbide Corp., 81 F. Supp. 177, 1948 U.S. Dist. LEXIS 1852 (D. Ky. 1948 ).

Opinions of Attorney General.

The Louisville-Jefferson County Board of Health has authority to contract with the Falls Region Health Council, Inc., for health planning services without the approval of the State Department of Health (now Cabinet for Health and Family Services). OAG 69-561 .

The rabies problem must be left to the State Department of Health (now Cabinet for Health and Family Services) and the county board of health and the county fiscal court has no power to make rabies regulations regarding cats. OAG 71-265 .

212.371. Schedules of fees and charges for services rendered in facilities operated by city-county boards of health.

City-county boards of health established by KRS 212.350 and operating hospitals and clinics may establish schedules of fees and charges for services rendered therein or thereby and may recover such fees and charges from any person who receives such services.

History. Enact. Acts 1952, ch. 65, § 1, effective March 24, 1952.

212.372. Classifications based upon financial ability.

In establishing such schedules the board may make reasonable classifications based upon the financial ability of persons to pay and may vary the charge in accordance with such classifications but no fees or charges shall in any event exceed the approximate cost of rendering the service, including drugs, pharmaceuticals, dressings, medicines or other materials used.

History. Enact. Acts 1952, ch. 65, § 2, effective March 24, 1952.

212.373. Recovery of charges from spouse or parent.

Such boards may likewise recover the charges so established from the spouse of any person receiving said services or from the parent of such person who is a minor if such spouse or parent has the financial ability to pay.

History. Enact. Acts 1952, ch. 65, § 3, effective March 24, 1952.

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Status of Wife, § 11.2.

212.374. Recovery of charges from person liable to person receiving services — Subrogation.

Such boards may likewise recover such fees and charges from any person, firm or corporation legally liable to the person receiving said services for such charges and shall be subrogated to the rights of the person receiving such services to the extent of such charges.

History. Enact. Acts 1952, ch. 65, § 4, effective March 24, 1952.

212.375. Burden of proof.

The burden of proving lack of financial ability to pay shall be upon the person claiming such lack.

History. Enact. Acts 1952, ch. 65, § 5, effective March 24, 1952.

212.376. Financial condition not to affect admission to hospital or emergency treatment.

No person brought to any such hospital for emergency treatment shall be denied admission on account of his financial condition nor shall the administration of emergency treatment to such person be delayed on account thereof.

History. Enact. Acts 1952, ch. 65, § 6, effective March 24, 1952.

212.380. Membership of board — Qualifications — Terms — Effect of compact or establishment of consolidated local government.

  1. Except in a county containing a consolidated local government, said board shall be composed of ten (10) members, two (2) of whom shall be the mayor of such city, and the county judge/executive of such county, as members ex officio, and four (4) of whom shall be appointed by the mayor of such city and four (4) of whom shall be appointed by the county judge/executive of such county with the approval of the fiscal court. Each appointive member shall be not less than thirty (30) years of age, intelligent, discreet, and shall have been a continuous resident of such county for at least two (2) years prior to the date of his or her appointment. At least one (1) and not more than three (3) of said appointive members shall be physicians, one (1) of said appointive members shall be a dentist, one (1) of said appointive members shall be a licensed pharmacist, and at least one (1) of said appointive members shall be a registered nurse. All appointive members shall be eligible for reappointment.
  2. At the expiration of each of the terms of office of said eight (8) appointive members, the successor to each member shall be appointed by said county judge/executive and said mayor for a term of office of four (4) years and until his successor is appointed and qualified.
  3. The two (2) appointments which increase the appointed members from six (6) to eight (8) shall both occur on July 1, 1974, one (1) of which shall be for a term expiring on June 30, 1978, the other of which shall be for a term expiring on June 30, 1975. Each subsequent appointment to the board shall be for a term of four (4) years.
  4. Notwithstanding subsection (2) of this section, when a city of the first class and a county containing such city have in effect a compact under KRS 79.310 to 79.330 , the terms of the members on the board shall be for three (3) years and until their successors are appointed and qualified. Upon the effective date of the compact, the mayor, and county judge/executive with the approval of the fiscal court, shall adjust the terms of the sitting members so that the terms of two (2) each of their appointments expire in one (1) year, the term of one (1) each of their appointments expire in two (2) years, and the term of one (1) each of their appointments expire in three (3) years. Upon expiration of these staggered terms, successors shall be appointed for a term of three (3) years.
  5. Upon the establishment of a consolidated local government in a county where a city of the first class and a county containing that city have had in effect a cooperative compact pursuant to KRS 79.310 to 79.330 , the board shall be composed of ten (10) members, the mayor and nine (9) members who shall be appointed to the board of health by the mayor of the consolidated local government pursuant to the provisions of KRS 67C.139 for a term of three (3) years. Incumbent board members, upon the establishment of the consolidated local government, shall continue to serve as members of the board for the time remaining of their current term of appointment and until their successors are appointed and qualified. The mayor shall serve on the board for a term which shall be coextensive with his or her term of office.

History. Enact. Acts 1942, ch. 41, § 3; 1970, ch. 85; 1972, ch. 373, § 1; 1974, ch. 54, § 1; 1986, ch. 77, § 23, effective July 15, 1986; 2002, ch. 80, § 3, effective July 15, 2002; 2002, ch. 346, § 205, effective July 15, 2002.

Legislative Research Commission Note.

(7/15/2002). This section was amended by 2002 Ky. Acts chs. 80 and 346, which do not appear to be in conflict and have been codified together.

Opinions of Attorney General.

There is no statutory or constitutional incompatibility in membership on a city-county board of health and membership on the city board of aldermen. OAG 62-684 .

212.390. Vacancies — Resignations.

  1. Any vacancy on the board occurring by reason of death, resignation, disqualification, removal, or otherwise, of any appointive member shall be filled in the same manner as the original appointment for the balance of the term of the member whose place is so vacated. The appointing authority is hereby given the exclusive power and authority to determine and declare when a vacancy exists.
  2. Except in a county containing a consolidated local government, if said county judge/executive and said mayor fail within said thirty (30) day period to make an appointment to fill any one (1) or more of the five (5) original positions of membership on said board, then and in that event the appointment to fill any such original position shall be made by the majority vote of a board to be composed of the county judge/executive of such county, the mayor of such city, and the president of the board of tuberculosis hospital in such county and city. Thereafter, in the event said county judge/executive and said mayor fail to make an appointment to fill any vacancy on said board within thirty (30) days after such vacancy, for any reason, occurs, the board itself shall have the power and is hereby authorized to make the appointment to fill such vacancy. In a county containing a consolidated local government, the mayor shall fill a vacancy to the board no later than thirty (30) days after the occurrence of the vacancy. In the event the mayor fails to make the appointment within the thirty (30) days, the appointment shall be made by the remaining members of the board.
  3. If the board has advance knowledge that a vacancy on the board will for any reason occur, the board shall, in advance of the occurrence of such vacancy (thirty (30) days in advance if possible) report in writing to the appointing authority the facts pertaining to such approaching vacancy. In any case where the board does not have advance knowledge of a pending vacancy, said board upon the occurrence of such vacancy shall forthwith in writing report such vacancy to the appointing authority. After said vacancy or vacancies have been so reported the procedure for filling such vacancy or vacancies shall be the same as the general procedure hereinabove set forth.
  4. Resignation by a member of the board shall be in writing addressed and submitted to the appointing authority and a copy thereof furnished to the chairman of the board.

History. Enact. Acts 1942, ch. 41, § 3; 2002, ch. 346, § 206, effective July 15, 2002.

Research References and Practice Aids

Cross-References.

Resignations, removals and vacancies, KRS Ch. 63.

212.400. Compensation of board members.

Each member of the board, except members ex officio, shall receive the sum of fifty dollars ($50) for each meeting of the board attended by such member; provided, however, that no member of said board shall be paid more than six hundred dollars ($600) during any fiscal year of the board, nor for more than twelve (12) meetings held during any fiscal year of said board.

History. Enact. Acts 1942, ch. 41, § 4; 1966, ch. 244.

212.410. Organization of board — Oath — Officers — Regulations — Records — Meetings — Employees — Divisions.

The appointive members of the board, upon appointment as herein provided, shall qualify by taking the necessary oath of office before the county judge/executive. Said board, including the ex officio members who shall have the right to vote on matters acted upon by the board, shall thereupon proceed to organize and elect from among its appointed members a chairman and a vice chairman, who shall serve for one (1) year and be eligible for reelection. A majority of the members of the board shall constitute a quorum for the transaction of business. The board for administrative purposes is authorized to create such administrative divisions as it deems necessary, and may adopt any and all necessary and appropriate rules and regulations for the conduct of its business and for carrying out the provisions of KRS 212.350 to 212.620 , and shall keep a record of its resolutions, transactions, findings and determinations, which record shall be a public record. The board shall hold at least one (1) regular meeting in each month, and such other meetings upon call of the chairman of the board as may be necessary. The board shall appoint a director of health, with the qualifications specified and subject to the provisions set forth in KRS 212.420 , who shall serve as secretary to and be administrative officer for the board, and perform such other duties as the board may direct. The board is authorized, subject to the provisions of KRS 212.350 to 212.620 , to employ such agents and employees as it deems necessary effectively to carry out its work. The administrative divisions created by the board shall be under the direction of the director of health, who for administrative purposes shall organize same into such divisions as may be necessary for the proper conduct of the business of the board. Said director shall have the power to designate chiefs of such divisions who, under his supervision and control, shall have the direction of such divisions.

History. Enact. Acts 1942, ch. 41, § 5.

212.420. Director of health — Qualifications, salary, term, removal.

The director of health shall be a physician, qualified as a public health administrator as provided by standards set up by the secretary of the Cabinet for Health and Family Services of Kentucky and duly qualified and licensed or eligible for license as a medical practitioner in the Commonwealth of Kentucky. He shall receive an annual salary of five thousand dollars ($5,000), payable as other salaries are paid, and shall serve at the pleasure of the board. If said director of health is removed by the board he shall be notified thereof in writing, and before such removal shall become effective said director shall have ten (10) days within which to make a written request for a public hearing in regard thereto. The board shall not be required to hold a hearing unless so requested by said director. If no such request is made said removal shall become effective upon the expiration of said ten (10) day period. If such request is made said public hearing shall be held at the office of the board within ten (10) days after such request is received by the board, and said director shall not be removed until after such hearing has been held, and a decision rendered by the board. The board’s decision shall be final.

History. Enact. Acts 1942, ch. 41, § 6; 1974, ch. 74, Art. VI, § 107(1), (10); 1998, ch. 426, § 360, effective July 15, 1998; 2005, ch. 99, § 409, effective June 20, 2005.

212.430. Compensation of employees — Civil service.

  1. The board shall fix the compensation of all agents and employees of the board, and such compensation shall be as nearly comparable as practicable with the compensations paid and received by corresponding or comparable civil employees of such city or county.
  2. The agents and employees of the board shall be employed and governed, as provided in this subsection, in accordance with the merit system. For the purpose of governing the employment, appointment, suspension, lay-off, and dismissal of employees by the board, and personnel matters relating thereto, any law or laws, or amendments thereof, and any rules and regulations issued pursuant thereto, authorizing, creating, and governing any city board or commission empowered to administer and enforce civil service laws, rules, and regulations in and for such city are hereby made applicable to the personnel and personnel matters of the board to the extent of and with respect to corresponding and comparable offices, positions, and places of employment of and under the board. Such city board or commission is hereby authorized and directed to perform, without compensation from the board, all things necessary to be done to accomplish the aforesaid purpose, including the creation and putting into effect of, and maintaining, a “classified service,” in accordance with which the board will be governed in the employment of agents and employees and in the performance of its duties under this section. The director of health of the board shall function as appointing authority in and with respect to said personnel matters of the board. Provided, however, regulations of such city board or commission as may administer the civil service laws, rules, and regulations in such city, as applied to employees of the board, shall be not less stringent than those of the merit system of the Cabinet for Health and Family Services of Kentucky.

History. Enact. Acts 1942, ch. 41, § 7; 1974, ch. 74, Art. VI, § 107(3); 1998, ch. 426, § 361, effective July 15, 1998; 2005, ch. 99, § 410, effective June 20, 2005.

Research References and Practice Aids

Cross-References.

Civil service in cities of first class, KRS 90.110 to 90.230 .

Civil service in cities of second and third classes, KRS 90.300 to 90.410 .

212.432. Inclusion of employees in state retirement system.

Notwithstanding the provisions of KRS 61.510 to 61.705 (Chapter 110, 1956 Acts of the General Assembly of Kentucky and amendments thereto) and KRS 78.510 to 78.852 , on July 1, 1962, all regular full-time present and future public health employees of any joint city-county health department or board of health located in a county containing a city of the first class or a consolidated local government shall be included within the provisions of the state retirement system.

History. Enact. Acts 1962, ch. 177, § 1; 2002, ch. 346, § 207, effective July 15, 2002.

212.434. Prior service credit.

All regular full-time public health employees of any joint city-county health department located in a county containing a city of the first class shall be given credit for any prior service with such department before July 1, 1956, but any such regular full-time public health employee shall be allowed credit for current service for the period July 1, 1956, to July 1, 1962; provided, such employee pays to the retirement system the contribution he would have paid for the period from July 1, 1956, to July 1, 1962, with interest at the rate determined by the board of trustees and an additional sum equal to fifty percent (50%) of this amount. The payment of the fifty percent (50%) sum shall be considered as accumulated contributions of the member.

History. Enact. Acts 1962, ch. 177, § 2.

212.436. Payment of contributions.

It shall be the responsibility of all joint city-county health departments in counties containing cities of the first class to pay the employer’s and employee’s share into the state retirement fund.

History. Enact. Acts 1962, ch. 177, § 3.

212.440. Transfer of employees of former health agencies.

  1. When the board has qualified and organized as herein provided, the employees of the department of public health of such city, and the employees of the county health department of such county, at that time in their employ, shall be transferred to and continued in the service of the board herein created. Provided, however, any and all of such employees who at said time are in the classified service of such city or county health departments shall be continued in the classified service of the board as herein provided, and shall be given and have in the classified service of the board the same status they had in the classified service of said city and county health departments, respectively.
  2. When the board has qualified and organized as herein provided, the employees of any board of tuberculosis hospital in such county, at that time in its employ, shall be transferred to and continued in the service of the board herein created. Said employees, except as provided in any law or laws, or amendment thereof, or any rules and regulations issued pursuant thereto governing any city board or commission empowered to administer and enforce civil service laws, rules and regulations in and for such city, herein made applicable to the board, shall then and thereafter be subject to said laws, rules and regulations. Provided, however, the employees then holding such offices, positions, or places of employment which are within the classified service, as herein provided for, shall be considered as having satisfied all of the qualifications for obtaining original appointment under such law, or laws, and shall be considered as having been given probationary appointments as defined in such law or laws of the date they are so placed in the classified service thereunder.

History. Enact. Acts 1942, ch. 41, § 7.

212.450. Indebtedness beyond annual income not to be incurred without popular vote.

The board shall not incur nor permit the incurrence of any indebtedness, in any manner or for any purpose, in an amount exceeding, in any fiscal year of the board, the income and revenue provided for the year through the appropriations provided for in KRS 212.470 for the purposes of KRS 212.350 to 212.620 , and funds derived from other sources, without the assent of the voters in the county, including the voters in the municipalities located in the county, voting at an election called and held for that purpose.

History. Enact. Acts 1942, ch. 41, § 8; 1954, ch. 168, § 2; 1996, ch. 280, § 27, effective July 15, 1996.

NOTES TO DECISIONS

1.Constitutionality.

Since the city-county board of health was but a means of carrying out a proper and necessary governmental function for the city and county, and city reaped the same benefits from the activities of the board as it formerly reaped from activities of city board of health, the constitutional authority of the city to expend proceeds of bonds issued by city for improvement of buildings and equipment of hospital owned and operated by board was as clear as its authority to contribute to the board from its general tax levy, and the issuance of such bonds was not a loan of credit by the city to another corporation in violation of Ky. Const., § 179. Kesselring v. Louisville, 257 S.W.2d 596, 1953 Ky. LEXIS 800 ( Ky. 1953 ).

2.Double Taxation.

Where the city issued general obligation bonds for improvements and additions to a hospital owned and operated by the city-county board of health, the levying of taxes for the payment of the bonds did not constitute double taxation against the citizens, in violation of the uniformity requirement of Ky. Const., § 171, because, even though city properties do contribute twice, there is no lack of uniformity, since the tax is levied uniformly upon all properties within the jurisdiction of the respective tax-levying authorities. Kesselring v. Louisville, 257 S.W.2d 596, 1953 Ky. LEXIS 800 ( Ky. 1953 ).

3.Bonds.

The provisions of this section did not afford the exclusive method by which an indebtedness could be incurred or bonds issued for benefit of the city-county board of health, and bonds issued by city for improvement to buildings and equipment of hospital owned and operated by board did not create an obligation of the board but constituted an exclusive obligation of the city; the fact that their proceeds were to be used for improving property held by the board did not alter that fact. Kesselring v. Louisville, 257 S.W.2d 596, 1953 Ky. LEXIS 800 ( Ky. 1953 ).

Research References and Practice Aids

Cross-References.

Similar provisions in constitution and in charter of first-class cities, Ky. Const., § 157.

212.460. Contracts for work or materials — Day labor.

All work done or supplies or materials purchased in carrying out the purpose of KRS 212.350 to 212.620 , when involving an expenditure of one thousand dollars ($1,000) or more, shall be by contract awarded to the lowest and best bidder after advertisement by publication pursuant to KRS Chapter 424. All bids or parts of bids, for any such work or supplies, may be rejected by said board. The board, however, may itself do or cause to be done, any part or parts of its work under such conditions as it may prescribe by day labor when the director of health, in writing, shall recommend such action.

History. Enact. Acts 1942, ch. 41, § 9; 1966, ch. 239, § 164.

Research References and Practice Aids

Cross-References.

Political subdivision may make purchases from federal government without taking bids, KRS 66.470 .

Purchases by cities of first class and counties containing such cities, KRS 68.170 .

212.470. Appropriations by county and city — Payment for school health services.

In order to provide sufficient funds for carrying out the purposes of KRS 212.350 to 212.620 , the fiscal court of the county shall annually appropriate money from the general fund of the county and the legislative body of the city shall annually appropriate money from the general fund of the city. The appropriations shall be made by the county and the city in such amounts, in such proportion and upon such terms as the fiscal court and the legislative body may agree and provide. Moneys so appropriated may be paid over to the board in regular monthly installments. In the event the sums derived from said appropriations, together with funds otherwise available from any other source to the board during any fiscal year, for its necessary expenditures in the maintenance and operation of said board, exceed its need for such expenditures during such fiscal year, any such unexpended funds at the end of such fiscal year shall be carried forward by the board to be used in paying for its operating costs and expenses for the ensuing year. The board of education in the city and the board of education in the county may make payments to the board for school health services provided by the board for children of school age, resident in the city and the county respectively, which shall not be in excess of the cost thereof.

History. Enact. Acts 1942, ch. 41, § 10; 1954, ch. 168, § 1, effective June 17, 1954.

NOTES TO DECISIONS

1.Constitutionality.

Since the city-county board of health was but a means of carrying out a proper and necessary governmental function for the city and county, and city reaped the same benefits from the activities of the board as it formerly reaped from activities of city board of health, the constitutional authority of the city to expend proceeds of bonds issued by city for improvement of buildings and equipment of hospital owned and operated by board was as clear as its authority to contribute to the board from its general tax levy, and the issuance of such bonds was not a loan of credit by the city to another corporation in violation of Ky. Const., § 179. Kesselring v. Louisville, 257 S.W.2d 596, 1953 Ky. LEXIS 800 ( Ky. 1953 ).

Where the city issued general obligation bonds for improvements and additions to a hospital owned and operated by city-county board of health, the levying of taxes for the payment of the bonds did not constitute double taxation against the citizens, in violation of the uniformity requirement of Ky. Const., § 171, because, even though city properties do contribute twice, there is no lack of uniformity, since the tax is levied uniformly upon all properties within the jurisdiction of the respective tax-levying authorities. Kesselring v. Louisville, 257 S.W.2d 596, 1953 Ky. LEXIS 800 ( Ky. 1953 ).

2.Food Permits.

KRS 212.350 to 212.630 (now KRS 212.350 to 212.620 ) do not confer on city-county health board the power to exact, by regulation, a permit fee from food establishments to defray cost of inspection and regulation. The board must depend on appropriated funds and has no power to finance its own activities, regardless of need. Henry v. Parrish, 307 Ky. 559 , 211 S.W.2d 418, 1948 Ky. LEXIS 764 ( Ky. 1948 ).

212.480. Depository for funds.

The board shall annually select a bank, or banks, or banking institutions for the current deposit of the board’s funds for the current operating expenses and which bank, or banks or banking institutions shall give and maintain a bond, or bonds, or other form of security to be approved by the mayor and the county judge/executive, said bond, or bonds or other forms of security to be conditioned upon the safekeeping and prompt payment of said funds placed in said depository when demanded by a duly authorized officer of the board. The amount of said bond, or bonds or other form of security shall be, in the discretion of the board, the mayor and the county judge/executive, in any amount not less than one hundred thousand dollars ($100,000), or said depository, in lieu of said bond and with the approval of the board, the mayor and county judge/executive, may place in escrow or under the joint control of an officer of said depository and the chairman of the board, United States bonds or other United States securities of an amount not less than one hundred thousand dollars ($100,000).

History. Enact. Acts 1942, ch. 41, § 11.

Research References and Practice Aids

Cross-References.

Conditions of bonds of depositories, KRS 62.060 .

212.490. Power to receive gifts and donations — Use — Investment.

  1. The board may receive and accept specific gifts, donations, contributions or endowments, the principal or income from which, as the case may be, shall be used for a specific purpose other than the ordinary and regular operating costs and expenses, and the board is hereby authorized to receive same and use the principal or income therefrom, as the case may be, for the specific purpose for which such gift, devise, bequest or endowment was made. The amount of moneys, funds, or assets so on hand or held for the use and benefit of these specific purposes shall not be considered for the purpose of KRS 212.350 to 212.620 as a balance at the end of the board’s respective fiscal years for the purpose of reducing the amounts hereinabove provided for operating expenses.
  2. Any donations given for immediate expenditure may be expended at the discretion of the board, and such donations as are given to it for investment may be invested or reinvested and the income from such investment or reinvestment expended in accordance with the terms of such donations within the purview of KRS 212.350 to 212.620 .
  3. Such board shall have the power to mortgage, pledge, sell and convey lands or goods so donated unless specifically prohibited by the terms of the donation and may, in its discretion, expend the proceeds in carrying out the purposes of KRS 212.350 to 212.620 or may if same are sold, invest or reinvest the proceeds in lands or such securities as are permitted for the investment of trust funds in KRS 386.020 , provided, however, that where the donor has specified any particular method or kind of investment the wishes of the donor shall be complied with if possible.

History. Enact. Acts 1942, ch. 41, § 12.

NOTES TO DECISIONS

Cited:

Henry v. Parrish, 307 Ky. 559 , 211 S.W.2d 418, 1948 Ky. LEXIS 764 ( Ky. 1948 ).

212.500. Selection of custodian for funds from donations and investments — Bond — Audits — Compliance with KRS 65A.010 to 65A.090.

  1. The board shall annually select a strong, safe, and conservative trust company, doing business in the city in which said board exists, as custodian of the funds and securities of the board received from donations and investments for specific purposes, as set out above, and may authorize said trust company to make the actual investment and reinvestment of said funds, but the proposed sale or purchase of land and securities must first be submitted to and approved of by the board. The board shall exact from such trust company a bond in double the amount of any money or property received under KRS 212.350 to 212.620 , that comes into said trust company’s hands, and may take the capital stock of the trust company as security or require an additional surety bond or other form of security, in such amount as it shall deem necessary as security for the funds and property in the custody of the trust company.
  2. All expenditures of said funds shall be made only by order of the board or by the proper officers designated by said board.
  3. The board shall cause an annual audit to be made of the receipts, expenditures and investments of said fund by a certified public accountant who shall be approved by the mayor and county judge/executive of the city and county where such board is located.
  4. The board shall comply with the provisions of KRS 65A.010 to 65A.090 .

History. Enact. Acts 1942, ch. 41, § 12; 2013, ch. 40, § 65, effective March 21, 2013.

212.510. Use of donations for other purposes.

If, at any time in the future, the causes, prevention and cure of tuberculosis or any other disease may be so well established that research becomes unnecessary, or the purposes for which endowments, gifts or donations were made become unnecessary, then the board is authorized, with the consent of the mayor of said city and the county judge/executive of said county, or by an order of a Circuit Court having general equity jurisdiction, to devote the funds and income therefrom which have been donated, set up, or otherwise received for research work, along any particular line of disease and cure as may nearest approach the disease or purpose for which said funds were donated and received, or with the consent of the mayor of said city and the county judge/executive of said county, or upon an order of a Circuit Court having general equity jurisdiction, may donate said funds to such research institutions as can best carry out the wishes of various donors for the general purposes for which said endowments, gifts or donations were made.

History. Enact. Acts 1942, ch. 41, § 12.

212.520. Fiscal year — Budget estimates.

The fiscal year of the board shall begin on July 1 of each year and shall end on June 30 of the following year. It shall be the duty of the appointive members of the board, during or before the month of May of each year, to prepare and certify to the fiscal court of the county and to the legislative body of the city, for their joint consideration, a preliminary budget showing the total funds which, in the judgment of the appointive members of the board, will be needed for its various departments, together with a statement showing the estimated balance, if any, which will be available on July 1 for expenditure during the next fiscal year following the certification of said statement, and also indicating, as nearly as may be possible, what additional funds or assets, other than appropriations, will be or become available for expenditure during said year. The board shall also furnish to said fiscal court and said legislative body any other information or data available to it, which said fiscal court or said legislative body may request.

History. Enact. Acts 1942, ch. 41, § 13; 1954, ch. 168, § 3, effective June 17, 1954.

212.530. Transfer of funds of former health agencies.

Immediately following the qualification of the members and the organization of the board and the election of the director of health as herein provided for, the city, county, and board of tuberculosis hospital shall each turn over to the board for its sole use and benefit under KRS 212.350 to 212.620 all unexpended and unencumbered taxes and moneys which have been collected under any levy, budget or appropriation previously thereto made for the respective health departments of the city and the county and the board of tuberculosis hospital; and thereafter the said city and county shall likewise pay over to said board all moneys which may be collected by said city and county on tax levies made and set up in their respective budgets or appropriations for said city health department, county health department and board of tuberculosis hospital prior to such time as said board is organized and takes over its duties as in KRS 212.350 to 212.620 provided for.

History. Enact. Acts 1942, ch. 41, § 13.

212.540. Budget.

  1. When the respective appropriations have been duly made by the city and county and an estimate of the amount of moneys that the board will receive from appropriations and from any and all other sources, for a fiscal year has been made, the board shall prepare and certify to the fiscal court of the county and the legislative body of the city for their approval, a revised financial budget setting forth the total amounts of funds available from all sources for expenditures during the board’s fiscal year, and also setting forth, in as great detail as possible with respect to each administrative division, the estimated expenditures of the board for the said fiscal year.
  2. A contingent fund for unanticipated expenditures may, with the approval of the fiscal court of the county and the legislative body of the city, be established in order to provide for such contingent and unanticipated needs as may arise during the board’s said fiscal year and to supplement allotments to divisions which may require the same. The board, as nearly as may be practicable, shall make all disbursements and expenditures in each fiscal year in conformity with the revised budget allotments; but in the event of an emergency the board may, with the approval of the county judge/executive and the mayor of the city, reduce, withhold or transfer from one division to another, funds or assets so allotted.

History. Enact. Acts 1942, ch. 41, § 14; 1954, ch. 168, § 4, effective June 17, 1954.

212.550. Accounts and financial records — Audits.

The board shall install and maintain a modern and efficient system of accounting and keep financial records. The board, however, may select and use the finance department of such city to do its financial accounting and make its disbursements in such manner as may be agreed upon by and between the board and the director of finance of said city, which work shall be done by said finance department without compensation from the board. The Auditor of Public Accounts of the Commonwealth of Kentucky, the comptroller and inspector of such city, and the county auditor of such county, respectively, shall have access to the books and the records of the board, and upon the request of the Cabinet for Health and Family Services of Kentucky said Auditor of Public Accounts, or upon the direction of the legislative body of such city the said comptroller and inspector, or upon the direction of the fiscal court of such county the said county auditor, shall make an audit of the board’s accounts and report back thereon.

History. Enact. Acts 1942, ch. 41, § 15; 1974, ch. 74, Art. VI, § 107(3); 1998, ch. 426, § 362, effective July 15, 1998; 2005, ch. 99, § 411, effective June 20, 2005.

212.560. Current borrowing.

The board shall have the power to borrow money on its own credit in anticipation of the revenue to be derived from appropriations provided for herein or of funds to be derived from other sources during the fiscal year in which the same is borrowed; and for such purpose the board may pledge said appropriations and funds, the collection and payment of which is anticipated during such year.

History. Enact. Acts 1942, ch. 41, § 16; 1954, ch. 168, § 5, effective June 17, 1954.

212.570. Reports to Cabinet for Health and Family Services, fiscal court, and board of aldermen.

The board shall make an annual report of its fiscal and other operations to the Cabinet for Health and Family Services of Kentucky, the fiscal court of such county and to the legislative body of such city. Such report shall be filed within sixty (60) days after the close of the board’s fiscal year and shall be accompanied by such information, tables, and data as may be necessary to present a reasonably detailed report of the board’s condition and activities during the preceding fiscal year.

History. Enact. Acts 1942, ch. 41, § 17; 1974, ch. 74, Art. VI, § 107(3); 1998, ch. 426, § 363, effective July 15, 1998; 2005, ch. 99, § 412, effective June 20, 2005.

212.580. Title to property — Tax exemption — Power to sell, mortgage or exchange.

  1. The title to all property acquired for purposes of KRS 212.350 to 212.620 , real, personal and mixed, whether acquired by deed, gift, purchase, devise, condemnation, or otherwise, shall vest in the board and shall be exempt from taxation. The board shall have the power, in its discretion, to sell or exchange any property, except real estate, which it owns, and it shall not be the duty of any person dealing with the board to look to the application of the proceeds of such sale or exchange.
  2. The board shall not have the power to sell, mortgage, transfer, or exchange any real estate which it may at any time own, except real estate which it receives as provided in KRS 212.490 to 212.510 , without the approval of the city by resolution of its legislative body duly approved by the mayor, and the approval of the fiscal court of the county by resolution duly adopted by said fiscal court.

History. Enact. Acts 1942, ch. 41, § 18.

NOTES TO DECISIONS

Cited:

Ashland-Boyd County City-County Health Dep’t v. Riggs, 252 S.W.2d 922, 1952 Ky. LEXIS 1049 ( Ky. 1952 ).

212.590. Power of condemnation.

The board shall have the power, by resolution reciting the need therefor and purpose thereof, to condemn real property located anywhere within such county. Eminent domain proceedings shall be conducted in the name of the board by the department of law of such city. The head of the department of law of such city or his assistant shall be the legal representative of the board in all matters and shall serve in that capacity without compensation from the board. In the exercise of its power of eminent domain, the board shall follow such proceedings as are provided in the Eminent Domain Act of Kentucky. All property thus acquired by the board shall be held, used and controlled by it in the same manner as is all other property of the board.

History. Enact. Acts 1942, ch. 41, § 19; 1976, ch. 140, § 90.

Research References and Practice Aids

Cross-References.

Eminent Domain Act of Kentucky, KRS 416.540 et seq.

212.600. Board to control health in all cities in county containing city of first class or consolidated local government.

All municipalities in any county of this Commonwealth in which county there is located a city of the first class or a consolidated local government are hereby made subject to the provisions of KRS 212.350 to 212.620 , and it shall be the duty of the board created in KRS 212.350 to make and enforce all reasonable regulations controlling or affecting the health of citizens and residents of said county, including all municipalities therein, in conformity with the provisions of KRS 212.350 to 212.620 and the laws of the Commonwealth of Kentucky, the rules and regulations of the Cabinet for Health and Family Services of Kentucky, and the ordinances of said municipalities now or hereafter in effect and not in conflict with the provisions of KRS 212.350 to 212.620. Such regulations shall, as nearly as may be practicable, be uniform throughout the county, both within and without the said municipalities; provided, however, that nothing contained in this section shall be construed to prevent the board from making specific health regulations applying only to such section or sections of said county as may be deemed to require special treatment. The board shall have power and authority to examine into all nuisances, sources of filth, and causes or probable causes of sickness, which may in its opinion be injurious to the health of the residents of such county or of any section or sections thereof.

History. Enact. Acts 1942, ch. 41, § 20; 1974, ch. 74, Art. VI, § 107(3); 1998, ch. 426, § 364, effective July 15, 1998; 2002, ch. 346, § 208, effective July 15, 2002; 2005, ch. 99, § 413, effective June 20, 2005.

NOTES TO DECISIONS

1.Food Permits.

City-county health board established under KRS 212.350 to 212.630 (now KRS 212.350 to 212.620 ) would not have power to exact, by regulation, a permit fee from food establishments to help defray cost of inspection and regulation even if general statutory authority of board to make regulations should be construed to grant such power, since, in the absence of a legislative guide or standard, the granting of such power would be an unconstitutional delegation of legislative authority. Henry v. Parrish, 307 Ky. 559 , 211 S.W.2d 418, 1948 Ky. LEXIS 764 ( Ky. 1948 ).

2.Disposal Plant.

So long as a private company’s disposal plant is operated in conformity with applicable orders and regulations of the various governmental agencies, including the board of health, having regulatory authority in the premises, and in a manner that is not inconsistent with public health and safety, a metropolitan sewer district cannot force the collection system to be diverted to its system without payment of the value of the disposal plant to its owner; furthermore in the event the district should acquire the company’s rights by purchase or condemnation no charge may be assessed against the lot-owners for any portion of the cost representing the value of the collection system. Louisville & Jefferson County Metropolitan Sewer Dist. v. Douglass Hills Sanitation Facility, 592 S.W.2d 142, 1979 Ky. LEXIS 317 ( Ky. 1979 ).

The board of health does have the power to regulate private sewage-disposal facilities and sewer systems; it may enforce compliance with its lawful orders and regulations through resort to the contempt powers of the Circuit Court, and it is empowered to abate nuisances affecting the public health, but in keeping with fundamental due process, however, notice and hearing are prerequisite to any such action. Louisville & Jefferson County Metropolitan Sewer Dist. v. Douglass Hills Sanitation Facility, 592 S.W.2d 142, 1979 Ky. LEXIS 317 ( Ky. 1979 ).

212.610. Public hearings — Production of evidence.

The board, in such manner as it shall provide by appropriate rules and regulations, is authorized to and shall conduct public hearings, upon notice duly given, concerning violations, committed within its jurisdiction, of the provisions of KRS 212.350 to 212.620 , or the aforesaid health laws, ordinances, or regulations, or of regulations or orders of the board herein created. The board, for the purpose aforesaid, is authorized to subpoena and examine witnesses, and certify official acts. Any member of the board is empowered and authorized to administer oaths and swear witnesses in any matter that is before the board.

History. Enact. Acts 1942, ch. 41, § 20.

NOTES TO DECISIONS

1.Scope of Board’s Power.

The board of health does have the power to regulate private sewage-disposal facilities and sewer systems; it may enforce compliance with its lawful orders and regulations through resort to the contempt powers of the Circuit Court, and it is empowered to abate nuisances affecting the public health, but in keeping with fundamental due process, however, notice and hearing are prerequisite to any such action. Louisville & Jefferson County Metropolitan Sewer Dist. v. Douglass Hills Sanitation Facility, 592 S.W.2d 142, 1979 Ky. LEXIS 317 ( Ky. 1979 ).

212.620. Abatement of nuisances — Enforcement of orders.

  1. Whenever any such aforesaid nuisance, source of filth, or cause or probable cause of sickness, shall be found by the board to exist on any private or public property within such county, including the municipalities therein, in violation of said laws or regulations, which said violation injuriously affects or may affect the health of the residents of said county or section thereof, the board shall have the power and authority to order in writing the owner or occupant or user thereof, by appropriate action, at the expense of such owner, occupant or user, to correct and remove said nuisance, source of filth, or cause or probable cause of sickness, within twenty-four (24) hours or within such reasonable time as the board may order.
  2. In case of a failure on the part of any person, firm or corporation, or persons, firms or corporations, to comply with any lawful order of the board, or with process, or in case of the refusal of any witness to testify concerning any matter on which he may be lawfully interrogated, the Circuit Court or a judge thereof, having jurisdiction in such county, may, on application of the board or of any member thereof, compel obedience by proceedings for contempt as in the case of disobedience of the requirements of a subpoena issued from such a court, or a refusal to testify therein.

History. Enact. Acts 1942, ch. 41, § 20.

NOTES TO DECISIONS

1.Notice and Hearing.

The board of health does have the power to regulate private sewage-disposal facilities and sewer systems; it may enforce compliance with its lawful orders and regulations through resort to the contempt powers of the Circuit Court, and it is empowered to abate nuisances affecting the public health, but in keeping with fundamental due process, however, notice and hearing are prerequisite to any such action. Louisville & Jefferson County Metropolitan Sewer Dist. v. Douglass Hills Sanitation Facility, 592 S.W.2d 142, 1979 Ky. LEXIS 317 ( Ky. 1979 ).

212.625. Animal shelter for animals.

Each city-county board of health created by KRS 212.350 shall establish, maintain, and operate an animal shelter for animals in which, except as otherwise provided by law, shall be impounded all stray, vicious, or diseased animals taken up or collected in the county, whether in incorporated or unincorporated areas, by any public officer or authority or by any other person. Each board shall, throughout the county, including all municipalities within the county, enforce all statutes, ordinances of cities, orders or resolutions of the fiscal court of the county, and regulations of the board or any other governmental body or agency authorized to promulgate regulations, relating to the taking up, collection, and impounding of stray, vicious, or diseased animals. Each board may promulgate and enforce reasonable and necessary regulations providing for the collection and impounding of animals and governing the use and operation of animal shelters.

History. Enact. Acts 1954, ch. 213, § 1, effective June 17, 1954; 2004, ch. 189, § 26, effective July 13, 2004.

Urban Counties

212.626. Definitions for KRS 212.627 to 212.639.

As used in KRS 212.627 to 212.639 , unless the context otherwise requires:

  1. “Board” means the urban-county board of health;
  2. “City-county board of health” means the city, county, or city-county board of health existing in the county on July 1, 1977;
  3. “City-county department of health” means the city, county, or city-county department of health existing in the county on July 1, 1977;
  4. “Commissioner” means the commissioner of health for the urban-county health department;
  5. “County” means any county of the Commonwealth containing any city with a population of over one hundred thousand (100,000) at the time of merger creating an urban-county form of government;
  6. “Department” means the urban-county department of health as created in KRS 212.627 and its designated agents;
  7. “Cabinet” means the Cabinet for Health and Family Services;
  8. “Mayor” means the chief executive officer of any county containing any city with a population of over one hundred thousand (100,000) at the time of merger creating an urban-county form of government; and
  9. “Person” means any person, or domestic or foreign individual corporation, government, or governmental subdivision or agency, business, estate, trust, partnership, unincorporated association, two (2) or more of any of the foregoing having a joint or common interest, or any other legal or commercial entity.

History. Enact. Acts 1976, ch. 347, § 1, effective July 1, 1977; 1998, ch. 426, § 365, effective July 15, 1998; 2005, ch. 99, § 414, effective June 20, 2005.

NOTES TO DECISIONS

1.Enforcement of Health Regulations.

Urban county board of health did not have authority to enforce local health regulations against a state university. Lexington-Fayette Urban County Bd. of Health v. Board of Trustees of the Univ. of Ky., 879 S.W.2d 485, 1994 Ky. LEXIS 79 ( Ky. 1994 ).

212.627. Urban-county department of health and board of health — Establishment — Jurisdiction — Powers and duties.

In each county of the Commonwealth containing any city with a population of over 100,000 at the time of merger creating an urban-county form of government, there is hereby established an urban-county department of health which shall be known as the “(name of city) - (name of county) Urban-County Department of Health.” The department when established shall be governed by a board which shall be a body politic and corporate, and shall be known as the “(name of city) - (name of county) Urban-County Board of Health.” The board shall have jurisdiction throughout the county, including within all municipalities of the county with respect to and in accordance with the provisions of KRS 212.626 to 212.639 . The board may, in its corporate name, sue and be sued, contract and be contracted with, acquire real, personal and mixed property by deed, purchase, gift, devise, lease or otherwise, and mortgage, pledge, sell, convey or otherwise dispose of same. The board may make appropriate rules and regulations and do all things reasonable or necessary in order to carry out the work and to properly perform the duties intended as required under the provisions of KRS 212.626 to 212.639 . The title to all property acquired for purposes of KRS 212.626 to 212.639 whether real, personal and mixed, or whether acquired by deed, gift, purchase, devise, or otherwise, shall vest in the board and shall be exempt from taxation. When and after the board and department established under the provisions of KRS 212.626 to 212.639 are organized and except as otherwise provided herein, the board and department shall succeed to and be vested with all of the functions, obligations, powers, duties and privileges now being exercised by the city-county board of health and city-county department of health, and thereupon the city-county board of health and city-county department of health shall cease to exist and all laws and amendments to any such laws, relating to and governing the city-county board of health and city-county department of health, in conflict with the provisions of KRS 212.626 to 212.639 shall, to the extent of such conflict, stand and be repealed.

History. Enact. Acts 1976, ch. 347, § 2, effective July 1, 1977.

212.628. Transfer of property to board of health — Powers and duties of board.

  1. All real, personal, and mixed property belonging to the city-county board of health or city-county department of health is hereby transferred to the board and the city-county board of health or city-county department of health shall take all the necessary and proper steps to effect the legal transfer of title and possession of all such property to the board.
  2. When the board has been organized and all property transferred as provided under subsection (1) of this section, the board may control, operate, or monitor all matters within the county affecting public health including institutions established to safeguard the public health which may encompass city or county medical facilities, nursing homes, medical care of the indigent, and laboratories and clinics necessary for the promotion of public health and environmental protection and which are required or permitted under the provisions of any act of the General Assembly, under any ordinances, orders, and resolutions of the legislative body of the county, or under any rules or regulations promulgated by the Cabinet for Health and Family Services, or by the board.

History. Enact. Acts 1976, ch. 347, § 3, effective July 1, 1977; 1998, ch. 426, § 366, effective July 15, 1998; 2005, ch. 99, § 415, effective June 20, 2005.

212.629. Board to establish fee schedules.

  1. The board may establish schedules of fees and charges for any services rendered by the department and may recover the fees and charges for services from any person who receives the services.
  2. In establishing the schedules the board may make reasonable classifications based upon the financial ability of persons to pay and may vary the charge in accordance with such classifications but no fees or charges shall in any event exceed the approximate cost of rendering the service, including drugs, pharmaceuticals, medicines, laboratory supplies or other material used.

History. Enact. Acts 1976, ch. 347, § 4, effective July 1, 1977.

212.630. Repeal of conflicting laws. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 41, §§ 23, 25) was repealed by Acts 1970, ch. 92, § 96.

212.631. Board may recover reasonable value of services furnished.

In any case in which the department renders medical services to a person who is injured or suffers from a disease, after July 1, 1977, under circumstances creating a tort liability upon some third person to pay damages therefor, the board may recover from any third person the reasonable value of the services so furnished or to be furnished and shall, as to this right, be subrogated to any right or claim that the injured or diseased person, his guardian, personal representative, estate, dependents, or survivors has against such third person to the extent of the reasonable value of the services so furnished or to be furnished. The commissioner may also require the injured or diseased person, his guardian, personal representative, estate, dependents or survivors, as appropriate, to assign his claim or cause of action against the third person to the extent of that right or claim.

History. Enact. Acts 1976, ch. 347, § 5, effective July 1, 1977.

212.632. Board membership.

  1. The board shall be composed of thirteen (13) members, one (1) of whom shall be an ex officio member and the mayor of the urban-county government, one (1) of whom shall be an ex officio member and a member of the urban-county government legislative body and appointed by the mayor, and eleven (11) of whom shall be appointed by the mayor with the approval of the urban-county government legislative body. Of the eleven (11) appointed members, three (3) shall be licensed and practicing physicians, one (1) a licensed and practicing dentist, one (1) a licensed and practicing registered nurse, and six (6) members at large. Appointment of the physician, dentist, and nurse shall be made from a list of three (3) nominees submitted by any of the respective county professional societies for which a vacancy exists. All appointed members shall reside in the county of the board to which they are appointed and shall be eligible for reappointment.
  2. At the expiration of any term of office, the successor to each member shall be appointed in the manner prescribed under the provisions of subsection (1) of this section for a term of office of two (2) years and until the successor is appointed and qualified.
  3. All vacancies occurring on the board by reason of death, resignation, disqualification, removal, or otherwise shall be filled for the unexpired term in the manner prescribed under the provisions of subsection (1) of this section.

History. Enact. Acts 1976, ch. 347, § 6, effective July 1, 1977; 2002, ch. 80, § 4, effective July 15, 2002; 2002, ch. 214, § 1, effective July 15, 2002.

Legislative Research Commission Note.

(7/15/2002). This section was amended by 2002 Ky. Acts chs. 80 and 214, which are in conflict. Under KRS 446.250 , Acts ch. 214, which was enacted last by the General Assembly, prevails.

212.633. Board meetings — Quorum.

  1. The board shall elect from among its members a chairman who shall serve for a one (1) year term and be eligible for reelection. A quorum for all meetings of the board shall consist of a majority of the members of the board, except that for the selection or dismissal of the commissioner, a quorum shall consist of not fewer than ten (10) of the thirteen (13) members of the board. All official action by the board shall be by a vote of a majority of all board members present.
  2. The board for administrative purposes may create any committees and offices as it deems necessary and adopt any and all necessary and appropriate rules and regulations for the conduct of its business and for carrying out the provisions of KRS 212.626 to 212.639 , and shall keep a record of its resolutions, transactions, findings, and determinations, which record shall be a public record. The board shall hold at least one (1) regular meeting in each month and any other meetings upon call of the chairman of the board as may be necessary.

History. Enact. Acts 1976, ch. 347, § 7, effective July 1, 1977; 2002, ch. 214, § 2, effective July 15, 2002.

212.634. Citizens’ advisory council — Membership — Duties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 347, § 8, effective July 1, 1977) was repealed by Acts 2002, ch. 214, § 6, effective July 15, 2002.

212.635. Commissioner — Appointment — Qualifications — Duties.

  1. The board shall appoint a commissioner for the department with the qualifications specified and subject to the provisions set forth under subsection (3) of this section.
  2. The board shall hear and decide appeals from rulings, decisions, and actions of the department or commissioner, where the aggrieved party makes a written request to the board within thirty (30) days after the ruling, decision, or action complained of.
  3. The commissioner shall be a physician, qualified by training in public health, preventive medicine and public administration and duly qualified and licensed or eligible for a license as a medical practitioner in the Commonwealth of Kentucky. He shall receive an annual salary as prescribed by the board subject to the provisions of the department’s merit system, payable as other salaries are paid, and shall serve at the pleasure of the board. If the commissioner is removed by the board he shall be notified in writing. Before his removal shall become effective, the commissioner shall have fourteen (14) calendar days within which to make a written request for a hearing. The board shall not be required to hold a hearing unless so requested by the commissioner. If no such request is made the removal shall become effective upon the expiration of the fourteen (14) day period. If a request for a hearing is made the hearing shall be held at the office of the board within fourteen (14) calendar days after the request is received by the board. The commissioner shall not be removed until after a hearing has been held if requested and a decision rendered by the board. The board’s decision shall be final.
  4. The commissioner shall devote his entire time to the duties of his office, which shall include teaching, research, service and administrative duties, and shall not engage in the private practice of medicine. He shall serve as secretary to the board and keep full minutes of the proceedings of the board. The commissioner shall be the chief administrative officer of the department. The commissioner may employ and fix the compensation of, by contract or otherwise, all medical, technical, clerical, professional, and other employees necessary for the maintenance and operation of the department in accordance with the merit system as established by the board.

History. Enact. Acts 1976, ch. 347, § 9, effective July 1, 1977.

NOTES TO DECISIONS

1.“Aggreived Party” Defined.

“Aggrieved party” referred to in KRS 212.635(2) does not include an employee of a county health department. While KRS 212.635(2) clearly authorizes the county board of health to hear and to decide appeals from rulings, decisions, and actions of the county health department or commissioner upon the request of an aggrieved party, the statute refers to actions taken by the county health department to enforce the health laws and not to internal personnel actions of the county health department. Lexington-Fayette Urban County Health Dep't v. Lloyd, 115 S.W.3d 343, 2003 Ky. App. LEXIS 218 (Ky. Ct. App. 2003).

212.636. Department employees — Compensation plan — Merit system — Personnel board.

  1. The board shall establish the compensation plan for all employees of the department, and such compensation shall be as nearly comparable as practicable with the compensation paid to and received by employees in comparable agencies.
  2. The employees of the department shall be employed and governed in accordance with a merit system. The board shall provide for the recruitment, examination, appointment, promotion, transfer, lay-off, removal, discipline, compensation, and welfare of the department’s employees by establishing a system of personnel administration based on merit principles and scientific methods whereby the rules and regulations of such system shall not be less stringent than those of the merit system of the Cabinet for Health and Family Services. Such system shall include a personnel board of five (5) members appointed by the board for two (2) year terms. The board shall select as members of the personnel board public-spirited citizens of recognized experience in the improvement of public administration and in the impartial selection of efficient public personnel. The personnel board shall be responsible for establishing rules and regulations for the purpose of governing the administration of the personnel system. The commissioner shall function as appointing authority in and with respect to the personnel matters of the board. The board shall have one (1) year from July 1, 1977, to implement such a system.
  3. Notwithstanding the provisions of KRS 61.510 to 61.692 and KRS 78.510 to 78.852 , on July 1, 1977, all regular full-time present and future public health employees of the department shall be included within the provisions of the state retirement system.
  4. When the board is qualified and organized as provided in KRS 212.626 to 212.639 , all city-county department of health employees at that time shall be transferred to and continued in the service of the department created under KRS 212.626 to 212.639 . Provided, however, that any and all of such employees who at that time are in the classified service of the city-county department of health shall be continued in the classified service of the department with the same status they have had in the classified service of the city-county department of health.

History. Enact. Acts 1976, ch. 347, § 10, effective July 1, 1977; 1980, ch. 188, § 207, effective July 15, 1980; 1998, ch. 426, § 367, effective July 15, 1998; 2005, ch. 99, § 416, effective June 20, 2005.

NOTES TO DECISIONS

1.Merit System.

Summary judgment for an employee was properly granted and a decision of a merit system council, that the employee had been terminated without just cause and ordering his reinstatement and back pay, was binding on a county health department and board of health as: (1) KRS 212.636(2) required that the board of health establish a merit system no less stringent than that established by the Kentucky Cabinet for Human Services; (2) the health department had conceded in the administrative appeal that various provisions in KRS Ch. 18A, such as former KRS 18A.095(23)(b), and KRS 18A.095(24)(c), renumbered as KRS 18A.095(23)(c), were applicable to its personnel actions under KRS 212.636(2); and (3) Lexington-Fayette Urban County, Ky., Merit System Rules VIII.F.2 and XII.D.3 used the verb “shall,” which was mandatory, and the noun “decision,” which suggested finality as opposed to a mere recommendation, and the merit system rules were binding upon the health department. Lexington-Fayette Urban County Health Dep't v. Lloyd, 115 S.W.3d 343, 2003 Ky. App. LEXIS 218 (Ky. Ct. App. 2003).

212.637. Indebtedness.

The board shall not incur nor permit the incurrence of any indebtedness, in any manner or for any purpose, in an amount exceeding, in any fiscal year of the board, the income and revenue provided for the year through the appropriation provided for in KRS 212.639 or under any other provision of KRS 212.626 to 212.639 and funds derived from any other sources, without the assent of the voters in the county, voting at an election called and held for that purpose.

History. Enact. Acts 1976, ch. 347, § 11, effective July 1, 1977; 1996, ch. 280, § 28, effective July 15, 1996.

Opinions of Attorney General.

A county health department could obtain a loan from a bank in order to alleviate a cash flow problem on its accounts payable where the promissory note will not extend beyond the present fiscal year and where the department’s projected revenues will be sufficient to retire the note within the 90-day period of the proposed loan. OAG 77-688 .

212.638. Contract bidding for work, supplies, or materials.

All work performed or supplies or materials purchased in carrying out the provisions of KRS 212.626 to 212.639 when involving an expenditure of twenty thousand dollars ($20,000) or more shall be by contract awarded to the lowest and best bidder after advertisement by publication pursuant to KRS Chapter 424. All bids or parts of bids, for any such work or supplies may be rejected by the board. The board, however, may itself do or cause to be done, any part of its work under such conditions as it may prescribe by day labor. The commissioner may act on the behalf of the board in such matters.

History. Enact. Acts 1976, ch. 347, § 12, effective July 1, 1977; 2010, ch. 76, § 1, effective July 15, 2010.

212.639. State aid — Budget — Annual report — Compliance with KRS 65A.010 to 65A.090.

  1. To provide sufficient funds for carrying out the provisions of KRS 212.626 to 212.639 , the department shall be entitled to the same state aid as is provided for county and district health departments under KRS 212.120 , upon notice of the establishment of the department being given to the Cabinet for Health and Family Services as provided in KRS 212.120 , the legislative intent being hereby declared to be that funding from the Cabinet for Health and Family Services be continued at least at the same level and proportion after July 1, 1977, as before its implementation and that modification or alteration of the annual allotment not be made unless for causes enumerated under the provisions of KRS 212.120.
  2. If the sums derived from the appropriations, together with funds otherwise available from any other source to the board during any fiscal year, for its necessary expenditures in the maintenance and operation of the board, exceed its need for such expenditures during such fiscal year, any such unexpended funds at the end of the fiscal year shall be carried forward by the board to be used in paying for its operating costs and expenses for its ensuing year.
  3. The fiscal year of the board shall begin on July 1 of each year and shall end on June 30 of the following year.
  4. In a timely fashion governed by the requirements of the various funding sources such as the Cabinet for Health and Family Services, urban-county government, and any and all other sources, the commissioner shall prepare for board approval a budget setting forth the total amounts of funds available from all sources for expenditures during the board’s fiscal year, and setting forth the estimated expenditures of the board for the fiscal year.
  5. The board shall install and maintain a system of accounting and shall file an annual report of its fiscal and other operations to the Cabinet for Health and Family Services and to the legislative body of the urban-county government after the close of the board’s fiscal year. The annual report shall be accompanied by such information, tables, and data as may be necessary to present a reasonably detailed report of the board’s condition and activities during the preceding year.
  6. The board shall comply with the provisions of KRS 65A.010 to 65A.090 .

History. Enact. Acts 1976, ch. 347, § 13, effective July 1, 1977; 1998, ch. 426, § 368, effective July 15, 1998; 2005, ch. 99, § 417, effective June 20, 2005; 2013, ch. 40, § 66, effective March 21, 2013.

Counties Containing Second-Class City

212.640. City-county health department in county containing city with population of 15,000 or more — Establishment — Membership of board.

In any county containing a city, as defined in KRS 212.641 , the fiscal court of the county and the legislative body of the city may, by joint action, establish a city-county health department. The department when established shall be governed by a city-county board of health composed of twelve (12) members, one (1) of whom shall be either the mayor, city manager, or the designee of the city manager of the city, whichever is appointed by the city legislative body, one (1) of whom shall be the county judge/executive, one (1) of whom shall be a dentist, one (1) of whom shall be a registered nurse, and three (3) of whom shall be physicians, one (1) of whom shall be a veterinarian, one (1) of whom shall be an engineer engaged in the practice of civil or sanitary engineering, one (1) of whom shall be an optometrist, one (1) licensed pharmacist, and one (1) lay person knowledgeable in consumer affairs residing in each county and appointed in the same manner as county board of health members and to hold office as provided in KRS 212.020 .

History. Enact. Acts 1944, ch. 122, § 1; 1962, ch. 7; 1970, ch. 84, § 1; 1994, ch. 462, § 1, effective July 15, 1994; 2002, ch. 80, § 5, effective July 15, 2002; 2014, ch. 92, § 270, effective January 1, 2015.

NOTES TO DECISIONS

1.Agreement of City and County.

City and county officials should reach agreement on health care for the indigent, but the courts will not intervene. Paducah v. McCracken County, 305 Ky. 539 , 204 S.W.2d 942, 1947 Ky. LEXIS 857 ( Ky. 1947 ).

Cited:

Nichols v. Marks, 308 Ky. 863 , 215 S.W.2d 1000, 1948 Ky. LEXIS 1063 ( Ky. 1948 ); Ashland-Boyd County City-County Health Dep’t v. Riggs, 252 S.W.2d 922, 1952 Ky. LEXIS 1049 ( Ky. 1952 ).

212.641. Definition of “city.”

As used in KRS 212.640 to 212.710 , “city” means an incorporated city in the Commonwealth of Kentucky containing a population equal to or greater than fifteen thousand (15,000) based upon the most recent federal decennial census.

History. Enact. Acts 2014, ch. 92, § 269, effective January 1, 2015.

212.650. Expense of maintaining city-county department.

The expense of creating and establishing the city-county department of health shall be paid by the city and by the county in such proportion as may be agreed upon between the city legislative body and fiscal court at the time of establishing the department. After the department has been established the annual expense of maintenance shall be borne in the same proportion, or as may be agreed upon between the city legislative body and fiscal court, and the city legislative body and fiscal court shall each make an annual levy sufficient to produce the necessary amount.

History. Enact. Acts 1944, ch. 122, § 2; 2014, ch. 92, § 271, effective January 1, 2015.

NOTES TO DECISIONS

1.Care of Poor.

The primary duty to care for the poor and sick rests on the county and this duty is not limited to those unfortunates who reside in the county outside the corporate limits of a city; however, the city also has a duty in this respect, since the county, because of its limited taxing power, is unable to make adequate provision for the care and maintenance of all persons and to hospitalize all the indigent sick persons from the entire county. Paducah v. McCracken County, 305 Ky. 539 , 204 S.W.2d 942, 1947 Ky. LEXIS 857 ( Ky. 1947 ).

2.Jurisdiction of Courts.

Court, in declaratory judgment action by city against county, did not have authority to determine what portion of expense of caring for indigent living in the city should be borne by the county, the only remedy being by an agreement between city and county under KRS 212.640 to 212.710 , or by enactment of new statutes fixing proportionate responsibility. Paducah v. McCracken County, 305 Ky. 539 , 204 S.W.2d 942, 1947 Ky. LEXIS 857 ( Ky. 1947 ).

212.660. City-county health officer — Employee benefits.

  1. After the establishment of a city-county health department as provided in KRS 212.640 , the city-county board of health shall appoint a health officer, subject to the approval of the Cabinet for Health and Family Services. Other persons necessary for the work of the city-county health department shall be appointed in the same manner and subject to the same conditions as are other county health department employees.
  2. Any city health department employee who is covered by a pension fund for civil service employees, as authorized by KRS 90.400 or any other section of the Kentucky Revised Statutes, prior to the consolidation of the city-county health department, may elect to continue such coverage thereafter in lieu of electing coverage under the Kentucky Employees Retirement System, KRS 61.510 to 61.705 ; provided, however, that all new employees of such consolidated city-county health department shall thereafter be covered by the Kentucky Employees Retirement System.

History. Enact. Acts 1944, ch. 122, § 3; 1954, ch. 209, § 7; 1958, ch. 96, § 6; 1974, ch. 74, Art. VI, § 107(1), (11); 1998, ch. 426, § 369, effective July 15, 1998; 2005, ch. 99, § 418, effective June 20, 2005.

NOTES TO DECISIONS

Cited:

Nichols v. Marks, 308 Ky. 863 , 215 S.W.2d 1000, 1948 Ky. LEXIS 1063 ( Ky. 1948 ).

212.670. Powers and duties of city-county board and department.

The city-county board of health and department of health shall have such powers, duties and privileges as are given by law to county boards and departments of health.

History. Enact. Acts 1944, ch. 122, § 4.

NOTES TO DECISIONS

Cited:

Nichols v. Marks, 308 Ky. 863 , 215 S.W.2d 1000, 1948 Ky. LEXIS 1063 ( Ky. 1948 ); Ashland-Boyd County City-County Health Dep’t v. Riggs, 252 S.W.2d 922, 1952 Ky. LEXIS 1049 ( Ky. 1952 ).

212.680. Powers and duties of city-county health officer.

The health officer appointed by the city-county board of health shall have such powers and duties as are vested by law in health officers of county departments of health.

History. Enact. Acts 1944, ch. 122, § 5.

NOTES TO DECISIONS

Cited:

Nichols v. Marks, 308 Ky. 863 , 215 S.W.2d 1000, 1948 Ky. LEXIS 1063 ( Ky. 1948 ).

212.690. Transfer of property and institutions.

Upon the establishment of a city-county department of health under KRS 212.640 , the property of the city board of health of the city and the property of the county board or department of health shall be transferred to the city-county department, and the city-county board of health shall assume control of any institutions formerly under the control of the city or county board or department of health.

History. Enact. Acts 1944, ch. 122, § 6; 2014, ch. 92, § 272, effective January 1, 2015.

NOTES TO DECISIONS

Cited:

Ashland-Boyd County City-County Health Dep’t v. Riggs, 252 S.W.2d 922, 1952 Ky. LEXIS 1049 ( Ky. 1952 ).

212.700. Jurisdiction of city-county department.

The city-county department of health shall have jurisdiction over the entire county, including all cities within the county.

History. Enact. Acts 1944, ch. 122, § 7.

212.710. State aid for city-county department.

Any city-county department of health established under KRS 212.350 or 212.640 shall be entitled to the same state aid as is provided for county and district health departments under KRS 212.120 , upon notice of the establishment of the department being given to the Cabinet for Health and Family Services as provided in KRS 212.120 .

History. Enact. Acts 1944, ch. 122, § 8; 1960, ch. 213; 1974, ch. 74, Art. VI, § 107(3); 1998, ch. 426, § 370, effective July 15, 1998; 2005, ch. 99, § 419, effective June 20, 2005.

Agency Orders

212.715. Orders of health agencies.

No person shall fail or refuse to observe or obey a written order of any board of health, department of health, or health officer, issued pursuant to the provisions of law or regulations adopted thereunder.

History. Enact. Acts 1954, ch. 209, § 8; 1958, ch. 96, § 7.

Public Health Taxing Districts

212.720. Creation of public health taxing districts.

Public health taxing districts created pursuant to this section prior to July 13, 1984, shall constitute and be a taxing district within the meaning of Section 157 of the Constitution of Kentucky. The members of the county or city-county board of health shall, by virtue of their office, constitute and be the governing body of the public health taxing district and shall perform the duties attendant thereto in addition to their duties as members of the county or city-county board of health. The officers of the county or city-county board of health shall be the officers of the public health taxing district.

History. Enact. Acts 1954, ch. 156, § 1, effective June 17, 1954; 1982, ch. 360, § 57, effective July 15, 1982; 1984, ch. 100, § 17, effective July 13, 1984.

NOTES TO DECISIONS

Cited:

Hardin County Fiscal Court v. Hardin County Bd. of Health, 899 S.W.2d 859, 1995 Ky. App. LEXIS 117 (Ky. Ct. App. 1995).

Opinions of Attorney General.

A special tax to be levied for the operation of a county health department could only be levied in the manner provided in KRS 212.720 through 212.740 . OAG 62-618 .

The county fiscal court could not make a special tax levy to finance a county health department. OAG 62-618 .

Where the county health board requests that the question of whether there shall be a public health tax in the county be put on the ballot, the fiscal court has no discretion in the matter and must put the question on the ballot. OAG 63-715 .

All taxes levied by a county in one year constitute one fund and are to be taken in the aggregate in computing the commission due the collecting officer except that where a special district is a separate taxing district and where commission procedure is not otherwise provided apart from subsection (2) of KRS 134.290 , the county should be reimbursed for that portion of the sheriff’s commission allocated to the collection of such separate taxing district taxes and paid by the county, as the library tax, under KRS 173.720 , and the public health taxing district, are not a part of the county tax within the prohibition of Ky. Const., § 157. OAG 73-647 .

A county health tax, established by a referendum vote of the people of that county and applied to a public health district established pursuant to this section, cannot be repealed by the county fiscal court since repeal or abolition must be accomplished by the same means as enactment; thus, a referendum is necessary. OAG 81-328 .

Although a district health department does not appear to have the power to tax under KRS 212.720 to 212.760 , it does have sufficient police power under KRS 212.245 and KRS 212.890 to qualify it as a political subdivision for purposes of Title 28, USCS § 103; accordingly, the interest paid by a department on a loan with a local bank would be exempt from federal income tax. OAG 81-342 .

There is no rational basis for a distinction between a public health district created under this section and one created under KRS 212.750 . Both types of districts were intended to be special taxing districts under Ky. Const., § 157. OAG 82-151 .

The establishing of a public health district and the special ad valorem public health tax, pursuant to this section and KRS 212.725 , requires a vote of the people. OAG 83-390 .

As public health taxing district was designated as a separate taxing district within the meaning of Ky. Const., § 157, pursuant to this section and KRS 212.750 , where county board of health sought to purchase property for the purpose of expansion by way of a conventional 10- or 15-year note and mortgage, Ky. Const., § 157 would require that the total indebtedness be fundable from the revenue available to the district for the year in which the obligations were executed; if the indebtedness would exceed the income and revenue actually available for the year in which the obligation was incurred, the assent of two-thirds of the voters of the district at an election for that purpose would be required. OAG 84-385 .

212.722. Compliance with KRS 65A.010 to 65A.090.

The board of a public health taxing district shall comply with the provisions of KRS 65A.010 to 65A.090 .

History. Enact. Acts 2013, ch. 40, § 67, effective March 21, 2013.

212.725. Imposition of special ad valorem public health tax.

  1. If, after the establishment of the public health taxing district, as provided in KRS 212.720 , the tax-levying authorities of the district, in the opinion of the county or city-county board of health, do not appropriate an amount sufficient to meet the public health needs of the county or the city-county health department or do not appropriate an amount sufficient to meet the standards prescribed by the Cabinet for Health and Family Services for health departments, the county or city-county board of health, acting as the governing body of the taxing district, shall with the approval of the Cabinet for Health and Family Services, impose by resolution a special ad valorem public health tax in an amount that it deems sufficient.
  2. The special ad valorem public health tax shall not be:
    1. Subject to the provisions of KRS 132.023 ; or
    2. Levied in an amount that is in excess of:
      1. The maximum amount approved by the electorate as provided for in KRS 212.720 ; or
      2. Ten cents ($0.10) per one hundred dollars ($100) of full value assessed valuation.
  3. The fiscal court shall upon receipt of a duly certified copy of said resolution, include in the next county ad valorem tax levy said special public health tax imposed by the county or city-county board of health which shall be in addition to all other county ad valorem taxes.
  4. The special public health tax shall be collected in the same manner as are other county ad valorem taxes and turned over to the county or city-county board of health.
  5. Moneys derived from the special ad valorem public health tax:
    1. Shall be used for the maintenance and operation of the county or city-county health department;
    2. May be expended for the construction, alteration, or modification of a public health center or other suitable housing facility for the county or city- county health department; and
    3. May be expended for funding for full-time equivalent foundational public health service providers as permitted by KRS 211.186(3).

History. Enact. Acts 1954, ch. 156, § 2; 1974, ch. 74, Art. VI, § 107(1), (3) and (11); 1998, ch. 426, § 371, effective July 15, 1998; 2005, ch. 99, § 420, effective June 20, 2005; 2020 ch. 21, § 10, effective March 17, 2020.

NOTES TO DECISIONS

1.Construction with KRS 212.755.

Under the doctrine of in pari materia, statutes having a common purpose or relating to the same person or thing, must be construed together, however, even construing the statutes under this doctrine, it is apparent that the legislative intent requires a different scheme under this section than KRS 212.755 . Hardin County Fiscal Court v. Hardin County Bd. of Health, 899 S.W.2d 859, 1995 Ky. App. LEXIS 117 (Ky. Ct. App. 1995).

2.Certification of Resolution.

The requirement for certification is for proof of authenticity rather than a jurisdictional necessity, and where authenticity has not been questioned, a resolution of the board of health is in fact genuine, and the lack of certification could have been corrected with reasonable notification. Trimble County Fiscal Court v. Trimble County Bd. of Health, 587 S.W.2d 276, 1979 Ky. App. LEXIS 469 (Ky. Ct. App. 1979).

3.Magistrates’ Refusal to Act.

Where the court determined that the magistrates had failed to carry out their statutory duty, and the record was void of any reason for their refusal to act, and where good faith of the magistrates was certainly questionable due to their refusal to follow the advice of the county attorney, and because of their publication of a newspaper ad designed to create a public controversy with the health tax increase the trial judge did not abuse his discretion in requiring the magistrates to pay the court costs in an action to set a specific health tax rate. Trimble County Fiscal Court v. Trimble County Bd. of Health, 587 S.W.2d 276, 1979 Ky. App. LEXIS 469 (Ky. Ct. App. 1979).

Opinions of Attorney General.

Health funds derived from taxes established by public health taxing districts under KRS 212.720 to 212.740 may not be used for supplementing a mental health program in a county. OAG 62-371 .

A health district tax, imposed after the creation of a public health taxing district pursuant to KRS 212.720 , may be used solely for the maintenance and operation of the county health department, with the result that such funds could not be used for constructing, operating, or maintaining a landfill operation for the disposal of garbage, since operating a landfill is not a function authorized for a county department of health. OAG 72-166 .

Since all tax money raised under this section shall be used solely for the maintenance and operation of the health department, the county health department cannot legally appropriate money to a city or county ambulance service. OAG 72-210 .

Acts 1979 (Ex Sess.), ch. 25, which limits a county’s increase in property taxes, does not limit in effect the public health district tax which is levied by a county pursuant to either this section or KRS 212.755 . OAG 82-151 .

Subsection (2) of KRS 212.755 and KRS 212.760 make the point clearly that as to both types of districts (under this section and KRS 212.755 ) the usual roll-back features applicable to the county’s own ad valorem tax rate shall not apply to such health district tax rates. OAG 82-151 .

The Legislature, in connection with a health taxing district under both this section and KRS 212.755 , intended to make each type of health district a separate or special taxing district under Ky. Const., § 157. OAG 82-151 .

Under the doctrine of in pari materia, and when reading the entire context of this section and KRS 212.755 , the fiscal court, when properly requested by the health district board, is mandatorily required to levy the health tax as a part of the county’s ad valorem tax machinery. OAG 82-151 .

The establishing of a public health district and the special ad valorem public health tax, pursuant to KRS 212.720 and this section, requires a vote of the people. OAG 83-390 .

Health district, acting through health board, may execute a land contract for the purchase of property for district purposes, pursuant to KRS 212.740 , subject to Ky. Const., § 157, payable from district ad valorem taxes. OAG 84-385 .

Tax revenues generated from a special ad valorem public health tax, and income from investment of such revenues, cannot be lawfully applied to operation or funding of a program for adult day care. OAG 91-164 .

212.730. Election on question of increasing or decreasing tax. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 156, § 3) was repealed by Acts 1968, ch. 202, § 6.

212.740. Expenditures of special health tax moneys. [Repealed]

History. Enact. Acts 1958, ch. 96, § 8; 1970, ch. 92, § 70; 2002, ch. 214, § 3, effective July 15, 2002; repealed by 2020 ch. 21, § 16, effective March 17, 2020.

212.750. Public health taxing district created in counties not electing to create same — Officers.

  1. It is the intent of this section and KRS 212.755 , inter alia, to create a public health taxing district via operation of law in every county of the Commonwealth that has not heretofore created same except in counties containing cities of the first class or a consolidated local government.
  2. In all counties where a county or city-county health department or urban-county department of health has been established, except in counties containing a city of the first class or a consolidated local government, and a public health taxing district has not been established pursuant to the provisions of KRS 212.720 , 212.722 , and 212.725 , a public health taxing district is hereby declared to be created upon June 13, 1968, or upon the creation of an urban-county department of health. The members of the county or city-county board of health or urban-county department of health shall, by virtue of their office, constitute and be the governing body of the public health taxing district and shall perform the duties attendant thereto in addition to their duties as members of the county or city-county board of health or urban-county department of health. The officers of the county or city-county board of health or urban-county department of health shall be the officers of the public health taxing district.
  3. Nothing in this section and KRS 212.755 shall in any way abridge the rights of two (2) or more counties from establishing a district health department.

History. Enact. Acts 1968, ch. 202, §§ 1, 2, 5; 2002, ch. 214, § 4, effective July 15, 2002; 2002, ch. 346, § 209, effective July 15, 2002; 2020 ch. 21, § 12, effective March 17, 2020.

NOTES TO DECISIONS

1.Construction with KRS 212.755.

Where board of health created pursuant to this section sought to obtain additional funding through special ad valorem tax in accordance with KRS 212.755 , county fiscal court was not required to enact tax under provisions of KRS 212.755 as permissive language of section obviously exists for a reason and must be given weight under rules of statutory construction. Hardin County Fiscal Court v. Hardin County Bd. of Health, 899 S.W.2d 859, 1995 Ky. App. LEXIS 117 (Ky. Ct. App. 1995).

Opinions of Attorney General.

The special rate applies to not only real but all tangible personal property within the county. OAG 69-340 .

The city and county health departments could not be consolidated under this section and KRS 212.755 with the entire cost of maintenance to be provided by a levy of the fiscal court. OAG 70-212 .

There is no rational basis for a distinction between a public health district created under KRS 212.720 and one created under this section. Both types of districts were intended to be special taxing districts under Ky. Const., § 157. OAG 82-151 .

A public health taxing district created by operation of law pursuant to this section and KRS 212.755 and the imposing of a district tax do not require a vote of the people. OAG 83-390 .

As public health taxing district was designated as a separate taxing district within the meaning of Ky. Const., § 157, pursuant to KRS 212.720 and this section, where county board of health sought to purchase property for the purpose of expansion by way of a conventional 10- or 15-year note and mortgage, Ky. Const., § 157 would require that the total indebtedness be fundable from the revenue available to the district for the year in which the obligations were executed; if the indebtedness would exceed the income and revenue actually available for the year in which the obligation was incurred, the assent of two-thirds (2/3) of the voters of the district at an election for that purpose would be required. OAG 84-385 .

212.755. Tax levy for district to be made on request of board — Limits — Permissible uses of special ad valorem public health tax.

  1. If, after the establishment of the public health taxing district as provided for in this section and KRS 212.750 , the tax-levying authorities of the district, in the opinion of the county or city-county board of health or urban-county department of health, do not appropriate an amount sufficient to meet the public health needs of the county or the city-county health department or urban-county department of health or do not appropriate an amount sufficient to meet the standards prescribed by the Cabinet for Health and Family Services for local health departments, the county or city-county board of health or urban-county department of health, acting as the governing body of the taxing district shall, with the approval of the Cabinet for Health and Family Services, request the fiscal court or urban-county government to impose by resolution a special ad valorem public health tax in an amount that it deems sufficient.
  2. The special ad valorem public health tax shall not be:
    1. Subject to the provisions of KRS 132.023 ; or
    2. Levied in an amount that is in excess of ten cents ($0.10) per one hundred dollars ($100) of full value assessed valuation.
  3. The fiscal court or urban-county government may, upon receipt of a duly certified copy of the resolution, include in the next county ad valorem tax levy the special public health tax imposed by the county or city-county board of health or urban-county department of health, which shall be in addition to all other county ad valorem taxes.
  4. If levied by the fiscal court or urban-county government, the special public health tax shall be collected in the same manner as are other county ad valorem taxes and turned over to the county or city-county board of health or urban-county department of health.
  5. Moneys derived from the special ad valorem public health tax:
    1. Shall be used for the maintenance and operation of the county, city-county, or district health department or urban-county department of health;
    2. May be expended for the construction, alteration, or modification of a public health center or other suitable housing facility for the county or city- county health department or urban-county department of health; and
    3. May be expended for funding for full-time equivalent foundational public health service providers as permitted by KRS 211.186(3).

History. Enact. Acts 1968, ch. 202, §§ 3, 4; 1974, ch. 74, Art. VI, § 107(1), (11); 1998, ch. 410, § 1, effective January 1, 1999; 1998, ch. 426, § 372, effective July 15, 1998; 2002, ch. 214, § 5, effective July 15, 2002; 2005, ch. 99, § 421, effective June 20, 2005; 2020 ch. 21, § 11, effective March 17, 2020.

NOTES TO DECISIONS

1.Construction.
2.— With KRS 212.750.

Where board of health created pursuant to KRS 212.750 sought to obtain additional funding through special ad valorem tax in accordance with this section, county fiscal court was not required to enact tax under provisions of this section as permissive language of section obviously exists for a reason and must be given weight under rules of statutory construction. Hardin County Fiscal Court v. Hardin County Bd. of Health, 899 S.W.2d 859, 1995 Ky. App. LEXIS 117 (Ky. Ct. App. 1995).

3.— With KRS 212.725.

Under the doctrine of in pari materia, statutes having a common purpose or relating to the same person or thing, must be construed together, however, even construing the statutes under this doctrine, it is apparent that the legislative intent requires a different scheme under KRS 212.725 than this section. Hardin County Fiscal Court v. Hardin County Bd. of Health, 899 S.W.2d 859, 1995 Ky. App. LEXIS 117 (Ky. Ct. App. 1995).

212.760. Public health taxing districts exempt from compensating tax rate. [Repealed]

History. Enact. Acts 1972, ch. 285, § 6; repealed by 2020 ch. 21, § 16, effective March 17, 2020.

Independent District Health Departments

212.780. Definitions for KRS 212.780 to 212.794.

As used in KRS 212.780 to 212.794 the following definitions shall apply:

  1. “Board” means independent district board of health as created in KRS 212.780 to 212.794 ;
  2. “Cabinet” means Cabinet for Health and Family Services;
  3. “County board of health” means a local board of health as defined by KRS 212.640 or 212.020 ;
  4. “Department” means independent district department of health created in KRS 212.780 to 212.794 ;
  5. “Director” means the district director of health;
  6. “District board of health” means the district board of health as established pursuant to KRS 212.810 to 212.930 ;
  7. “District department of health” means the district department of health as established pursuant to KRS 212.810 to 212.930 ;
  8. “Independent district board of health” means the independent district board of health as created in KRS 212.780 to 212.794 ;
  9. “Judge/executive” means the county judge/executive of any county fiscal court as defined in KRS 67.700 to 67.710 ; and
  10. “Metropolitan statistical area” (MSA) means metropolitan statistical area as defined by the United States Bureau of the Census, United States Department of Commerce.

History. Enact. Acts 1990, ch. 75, § 1, effective July 13, 1990; 1998, ch. 426, § 373, effective July 15, 1998; 2005, ch. 99, § 422, effective June 20, 2005.

212.782. Establishment of independent district board of health and independent district department of health.

  1. An independent district board of health and an independent district department of health may be established in areas where an existing district board of health and district department of health includes counties which are a part of an interstate MSA where the Kentucky population of the interstate MSA exceeds two hundred fifty thousand (250,000) people on July 1, 1989, as estimated by annual population estimates by the United States Bureau of the Census.
  2. The county fiscal courts of any county within an area may by resolution of the respective fiscal courts, passed by a majority vote of the members present, unite the counties to create, establish, maintain, and operate an independent district department of health as defined in KRS 212.780 . Each fiscal court shall provide for its proportion of the cost for the creation, establishment, maintenance, and operation of the department by resolution.

History. Enact. Acts 1990, ch. 75, § 2, effective July 13, 1990.

212.784. Jurisdiction and powers of board.

  1. Independent district departments of health shall be governed by an independent district board of health which shall be a body politic and corporate. The board shall have jurisdiction throughout the counties, including within all municipalities of the counties with respect to and in accordance with the provisions of KRS 212.780 to 212.794 . The board may, in its corporate name, sue and be sued, contract and be contracted with, acquire real, personal, and mixed property by deed, purchase, gift, devise, lease, or otherwise, and mortgage, pledge, sell, convey, or otherwise dispose of same. The board may make appropriate rules and regulations and do all things reasonable or necessary in order to carry out the work and to properly perform the duties intended as required under the provisions of KRS 212.780 to 212.794 , except that the board shall not adopt, unless otherwise provided by law, rules and regulations in conflict with state laws or administrative regulations. The title to all property acquired for purposes of KRS 212.780 to 212.794 whether real, personal, and mixed, or whether acquired by deed, gift, purchase, devise, or otherwise, shall vest in the board and shall be exempt from taxation. When and after the board and department established under the provisions of KRS 212.782 are organized, and except as otherwise provided herein, the board and department shall succeed to and be vested with all of the functions, obligations, powers, duties, immunities, and privileges now being exercised by the district board of health and district department of health, and thereupon the district board of health and district department of health shall cease to exist and all laws and amendments to any such laws, relating to and governing the district board of health and district department of health, in conflict with the provisions of KRS 212.780 to 212.794 shall, to the extent of such conflict, stand and be repealed.
  2. When an independent district board of health is created pursuant to KRS 212.782 , all powers and duties of the previous district board of health and local boards of health, except as otherwise provided in KRS 212.780 to 212.794 , are transferred to the newly created independent district board of health and independent district department of health. Independent district boards of health and independent district departments of health established under KRS 212.782 shall succeed to and be vested with all the functions, powers, obligations, duties, immunities, and privileges exercised by a district health department and local board of health.

HISTORY: Enact. Acts 1990, ch. 75, § 3, effective July 13, 1990; 2015 ch. 80, § 3, effective June 24, 2015.

212.786. Membership of board — Terms — Vacancies.

  1. The independent district board of health shall be composed of the following members:
    1. The judge/executive or his designee as an ex officio member from each participating county;
    2. The chairman from each participating local board of health as an ex officio member; and
    3. Additional members appointed by the judge/executive with the approval of the fiscal court including, at least to the extent practicable, from the following professions:
      1. Registered nurses;
      2. Licensed veterinarians;
      3. Licensed dentists;
      4. Licensed physicians;
      5. Licensed podiatrists;
      6. Licensed optometrists;
      7. Mental health professionals;
      8. Public health professionals;
      9. Consumers; and
      10. Licensed pharmacists.

        The appointments under paragraph (c) of this subsection shall be made taking into consideration the need for a balanced representation on the board of the professions listed under paragraph (c) of this subsection. Each member shall serve a term of two (2) years with a maximum of three (3) consecutive terms, except ex officio members who shall continue to serve.

  2. The judge/executive, or his designee and the chairman of the local board of health shall serve as ex officio members of the district board of health. Additional appointments shall be based on population. Each county shall have an appointment of one (1) member for thirty thousand (30,000) population or portion thereof. Additional members shall be at a rate of one (1) member per whole increment of thirty thousand (30,000) population. The mayor of each city containing a population equal to or greater than fifteen thousand (15,000) based upon the most recent federal decennial census, or his or her designee, shall serve as an ex officio member of the district board of health and shall count against the population-based appointees.
  3. All appointments made prior to June 24, 2015, shall remain unaffected, and the appointed members shall serve the remainder of their terms. The most recent estimates published by the United States Department of Commerce, Bureau of the Census shall be used for appointments based on population made after June 24, 2015.
  4. The judge/executive shall fill all vacancies occurring by reason of death, resignation, or disqualification and do so for the unexpired term.

History. Enact. Acts 1990, ch. 75, § 4, effective July 13, 1990; 2002, ch. 80, § 6, effective July 15, 2002; 2014, ch. 92, § 273, effective January 1, 2015; 2015 ch. 80, § 2, effective June 24, 2015.

212.788. Quorum — Officers — Compensation — Meetings.

  1. The majority of all members of an independent district board of health shall constitute a quorum. The board shall elect a chairman and vice chairman and other officers as deemed necessary. The chairman and vice chairman shall serve for one (1) year terms. The independent district board of health may elect an executive committee for the conduct of such business and the discharge of such duties as the board may delegate.
  2. Members of an independent district board of health shall serve without pay but may be reimbursed for expenses incurred in connection with such service.
  3. The board may create committees it deems necessary, adopt any rules and regulations for the conduct of business and for carrying out the provisions of KRS 212.780 to 212.794 . The board shall keep a record of all resolutions, transactions, findings and determinations, which shall be public records. The board shall hold at least four (4) regular meetings in each year.

History. Enact. Acts 1990, ch. 75, § 5, effective July 13, 1990.

212.790. District director of health — Qualifications and authority — Compensation — Removal procedure.

  1. The board shall appoint a district director of health for the department as set forth in this section.
  2. The district director of health may be a physician, qualified by training in public health, preventive medicine and public administration, and licensed or eligible for practice as a medical practitioner in the Commonwealth of Kentucky, or may be a nonphysician with a master’s degree in public health or related field and at least five (5) years’ experience in a management capacity with a health department. The district director of health shall receive an annual salary as prescribed by the board, subject to the provisions of the department’s merit system, and shall serve at the pleasure of the board. If the district director of health is removed by the board, he shall be notified in writing, and within fourteen (14) days may make a written request for a hearing. If no request is made, the removal shall become effective upon the expiration of fourteen (14) days. If a request for hearing is made, the hearing shall be held at the office of the department within fourteen (14) calendar days after the request is received by the board. The district director of health shall not be removed until after a hearing has been held, and a decision rendered by the board. The board decision shall be final.
  3. The district director of health shall serve as secretary to the board of health, the chief administrative officer of the department, and may employ and fix compensation of, by contract or otherwise, all employees necessary for the maintenance and operation of the department in accordance with the merit system as established by the board.

History. Enact. Acts 1990, ch. 75, § 6, effective July 13, 1990.

212.792. Personnel matters.

  1. The board shall establish a compensation plan for all employees of the department.
  2. The employees of the department shall be employed and governed in accordance with the board’s merit system. The board shall provide for the recruitment, examination, appointment, promotion, transfer, lay-off, removal, discipline, compensation, and welfare of the department’s employees by establishing a system of personnel administration based on merit principles. The systems shall include a personnel board of at least five (5) members appointed by the board for two (2) year terms. The personnel board shall establish rules and regulations governing the administration of the personnel system. The district director of health shall function as the appointing authority for personnel matters of the board. The board shall have one (1) year from the implementation of KRS 212.780 to 212.794 to provide for a merit system.
  3. Notwithstanding the provisions of KRS 61.510 to 61.692 and 78.510 to 78.852 all regular full-time, present and future public health employees of an independent district department of health shall be included within the provisions of the Kentucky Retirement System.
  4. When a personnel board is organized as provided in this section, all health department employees shall be transferred to and continued in the service of the department created under KRS 212.782 . Any health department employee who is in classified service at the time of the establishment of a personnel system shall be continued in the classified service of the newly created department with the same status held in the district department of health.

History. Enact. Acts 1990, ch. 75, § 7, effective July 13, 1990.

212.794. Bases for funding and budgeting — Accounting and records system — Annual report — Compliance with KRS 65A.010 to 65A.090.

  1. The cost of creating, establishing, and maintaining the independent district health department shall be paid by the participating local boards of health in proportion to the taxable property of each county as determined by respective county assessments and in accordance with revenues generated pursuant to authority under KRS 212.720 and 212.725 .
  2. The independent district health department shall be entitled to the same state aid as provided for county and district health departments under KRS 212.120 , upon notification of the establishment of the department being given to the cabinet, as provided in KRS 212.120 . Funding from the cabinet shall be continued at least at the same level and proportion for similar public health activities the district after enactment of KRS 212.780 to 212.794 as before. Modification of annual allotments shall not be made unless in accordance with causes enumerated under the provisions of KRS 212.120.
  3. An independent district board of health may establish schedules of fees and charges for any services rendered by the department and may recover the fees and charges for services from any person who receives services.
  4. A board may make reasonable classifications in fee schedules based upon the financial ability of the person to pay and may vary charges in accordance with income classifications but no fee charged shall exceed the approximate cost of rendering such service.
  5. The district director of health shall prepare a budget for the board’s approval and set forth the total funds available from all sources for actual and estimated expenditure during the fiscal year. Fiscal years shall begin on July 1 of each year and shall end on June 30 of the following year.
  6. A board shall install and maintain a system of accounting and records and shall file an annual report and other documents required by the fiscal courts, to the cabinet and to the local boards of health within one hundred twenty (120) days of the close of the board’s fiscal year.
  7. A board shall comply with the provisions of KRS 65A.010 to 65A.090 .

History. Enact. Acts 1990, ch. 75, § 8, effective July 13, 1990; 2013, ch. 40, § 68, effective March 21, 2013.

District Health Departments

212.810. Title.

KRS 212.810 to 212.930 may be cited as the “Kentucky District Health Department Act of 1972”.

History. Enact. Acts 1972, ch. 301, § 1.

Opinions of Attorney General.

A district health department established pursuant to KRS 212.810 to 212.930 has no taxing power, although funds arising out of public health taxing districts’ special health tax, provided for in KRS 212.720 to 212.755 , may be turned over to such district health department. OAG 83-390 .

212.820. Legislative intent.

It is the intent of KRS 212.810 to 212.930 to enable counties within various areas of the state to join together in the formation of a district health department to improve the delivery of health services to the people.

History. Enact. Acts 1972, ch. 301, § 2.

212.830. Definitions for KRS 212.810 to 212.930.

As used in 212.810 to 212.930 , unless the content requires otherwise:

  1. “Cabinet” means the Cabinet for Health and Family Services; and
  2. “Health officer” means the chief administrative officer of the district health department.

History. Enact. Acts 1972, ch. 301, § 3; 1974, ch. 74, Art. VI, § 107(1), (11); 1998, ch. 426, § 374, effective July 15, 1998; 2005, ch. 99, § 423, effective June 20, 2005.

212.840. District health departments — Boundaries — Costs.

  1. The cabinet shall delineate and define geographical boundaries within which district health departments may be established. The fiscal courts of all counties within the boundaries delineated by the cabinet may, by resolution of each respective court, duly passed by a majority vote of the members present, unite all the counties into a district for the purpose of creating, establishing, maintaining, and operating a district health department. The resolution of each court shall be in effect for two (2) years awaiting the action of other fiscal courts to unite in the formation of a district health department. Each court, at the time of passing the resolution, shall provide for its proportion of the cost of the creation, establishment, maintenance and operation of the department, to be paid for by the county.
  2. The cost of creating and establishing the district health department shall be paid by the counties comprising the district in proportion to the taxable property of each county as shown by their respective county assessments. The annual expense of maintaining and operating the district health department shall be borne by each county reasonably and equitably in proportion to the amount of the taxable property in each county, in amounts determined by the standards of the cabinet.

History. Enact. Acts 1972, ch. 301, § 4.

Opinions of Attorney General.

A county fiscal court which has withdrawn from a district health department may rejoin the health district despite the objections of the county health board, as the county health board is a creature of the county fiscal court pursuant to KRS 212.040 and the county health board is not required to concur in the action of the fiscal court. OAG 80-4 .

Since a county health department is a creature of the fiscal court by way of the fiscal court’s creating and financially maintaining the county health department, and since the county health department has no role in the creation of a district health department, there is nothing the county health department can do by way of preventing the withdrawal of the county fiscal court from a district health department compact. OAG 80-193 .

A district health department established pursuant to KRS 212.810 to 212.930 has no taxing power, although funds arising out of public health taxing districts’ special health tax, provided for in KRS 212.720 to 212.755 , may be turned over to such district health department; accordingly, since the district health department is not a taxing district, the summary financial statement of KRS 65.070 has no application. OAG 84-335 .

In reading all of subsection (1) of KRS 424.220 together, under the doctrine of in pari materia, it appears that KRS 424.220 , the publication statute, does not apply to a district health department; that statute emphasizes that those units of government which extract rates, charges, assessments or taxes from the public are brought under the statute. Thus, it would not apply to a district health department which received its funding from state, federal, county, and public health taxing district sources, and imposed no taxes or charges upon the public. OAG 84-335 , modified by OAG 85-45 .

KRS 65.070 , relating to publication of financial statements, has no application to a district health department; however, the financial statement provisions of KRS 424.220 do apply to a district health department. OAG 85-45 , modifying OAG 84-335 .

212.850. Establishment of district health departments.

  1. Fiscal courts of all counties uniting to establish a district health department shall certify to the cabinet a copy of their resolution for establishing a district health department and providing for its maintenance and operation, and specifying the amount of the appropriation therefor.
  2. If the cabinet finds that such a district health department has been proposed in accordance with the provisions of KRS 212.810 to 212.930 and that the appropriations are adequate, the cabinet shall enter an order declaring the district to be established and a copy of the order shall be filed with the Secretary of State and with the county clerk of each county concerned. When a district department of health is created all powers and duties of the county boards of health, except as otherwise provided in KRS 212.920 , under existing statutes are transferred to the district board of health. The cabinet shall, on or before July 1 in each year, allot to each such district health department such amount that the cabinet deems to constitute a just and equitable share of funds available therefor from appropriation by the General Assembly, by grants and gifts received by this Commonwealth from the government of the United States of America or from any of its agencies or instrumentalities, and from other sources.
  3. In determining the allotments referred to in subsection (2) of this section, the cabinet shall endeavor to provide for a distribution of the funds in a manner that is reasonably calculated to equalize, so far as practicable, local health services to the people of all counties served by the district health department. The cabinet may take into consideration variations existing between districts by reasons of difference in population, resources, industrialization, tax assessments and tax rates, and other local factors and conditions; the legislative intent being hereby declared to be that districts shall provide, from local sources of revenue that are available to them, financial support of district health departments to the extent of their respective abilities.
  4. The cabinet may, in its discretion, alter or modify allotments from time to time and may cancel any allotment whenever it finds that a particular district health department is not maintained, operated and conducted in accordance with the standards prescribed by the cabinet. Nothing in this section shall be construed as requiring the cabinet to allot all funds available for local health purposes, or as prohibiting the cabinet from allotting such portion thereof, as the cabinet may determine, to a reserve account which may be sub-allotted by the cabinet in such manner that it considers proper in the event of emergencies, disaster or unforeseen events without regard to the provisions of subsection (3) of this section.

History. Enact. Acts 1972, ch. 301, § 5; 1978, ch. 384, § 345, effective June 17, 1978.

Opinions of Attorney General.

A district health department established pursuant to KRS 212.810 to 212.930 has no taxing power, although funds arising out of public health taxing districts’ special health tax, provided for in KRS 212.720 to 212.755 , may be turned over to such district health department; accordingly, since the district health department is not a taxing district the summary financial statement of KRS 65.070 has no application. OAG 84-335 .

In reading all of subsection (1) of KRS 424.220 together, under the doctrine of in pari materia, it appears that KRS 424.220 , the publication statute, does not apply to a district health department; that statute emphasizes that those units of government which extract rates, charges, assessments or taxes from the public are brought under the statute. Thus, it would not apply to a district health department which received its funding from state, federal, county, and public health taxing district sources, and imposed no taxes or charges upon the public. OAG 84-335 , modified by OAG 85-45 .

KRS 65.070 , relating to publication of financial statements, has no application to a district health department; however, the financial statement provisions of KRS 424.220 do apply to a district health department. OAG 85-45 , modifying OAG 84-335 .

212.855. Members of district board of health — Appointment — Terms.

  1. Except for district health departments which serve a county containing a city of the first class, an urban-county government, or which are part of an interstate metropolitan statistical area where the Kentucky population of the metropolitan statistical area exceeded two hundred fifty thousand (250,000) people on July 1, 1989, a district board of health shall consist of the following members:
    1. The county judge/executive or his designee from each county in the district as an ex officio voting member; and
    2. One (1) additional resident member per county per fifteen thousand (15,000) population or fraction thereof, which shall include the mayor, city manager, or the designee of the city manager of each city with a population equal to or greater than fifteen thousand (15,000) based upon the most recent federal decennial census as an ex officio voting member, except that the total number of members from any county in a district shall not exceed seven (7) members.
  2. All members, except for the county judges/executive and the mayors of cities serving pursuant to subsection (1) of this section, shall be appointed by the county or city-county boards of health from the membership of each county or city-county board of health.
    1. The secretary of the Cabinet for Health and Family Services shall notify the chairman of each county or city-county board of health in the district of the name of each member from that county whose term is expiring.
    2. Upon receipt of the notification, under paragraph (a) of this subsection, each county or city-county board of health shall appoint one (1) of its members to fill each vacant position from that county. At least twenty-five percent (25%) or the nearest whole number to twenty-five percent (25%) of the appointed members of the district board shall be doctors of medicine or osteopathy qualified, licensed, and practicing in the Commonwealth, and there shall be at least one (1) qualified, licensed, and practicing registered nurse, one (1) qualified, licensed, and practicing dentist, one (1) licensed pharmacist, one (1) qualified licensed engineer engaged in the practice of civil or sanitary engineering, one (1) qualified, licensed, and practicing optometrist, and one (1) qualified, licensed, and practicing veterinarian, when available, among the membership of the board. The remaining members of the district board shall be concerned community leaders residing within the county from which they are to be representatives.
    3. The chairman of the county or city-county board of health shall inform the secretary within forty-five (45) days of receipt of this notification of the names of the county or city-county board of health members appointed to serve on the district board. Appointed members of district boards of health shall not begin to serve on a district board of health until the time the secretary has certified their eligibility to serve on the board.
  3. If a vacancy exists upon the district board, the vacancy shall be filled in a manner consistent with subsection (2) of this section, with the appointed member to fill the vacant seat coming from the county in which the vacancy occurs and the appointed member resides. If the term of a member on the county board of health expires or the member cannot complete the term on the county board, the seat on the district board of health shall be declared vacant and the county or city-county board of health shall appoint another of its members to fill any unexpired portion of the term on the district board.
  4. The appointed members of the district board of health shall hold office for a term of two (2) years ending on December 31 or until their successors are appointed. The terms of the first appointments shall be staggered so that members whose terms expire on June 30, 1992, shall be replaced with appointed members whose terms expire on December 31, 1994. Members whose terms expire on June 30, 1993, shall be replaced with appointed members whose terms expire on December 31, 1995.
  5. The secretary shall remove any appointed member who fails to attend three (3) consecutive scheduled meetings.

History. Enact. Acts 1982, ch. 228, § 1, effective July 15, 1982; 1992, ch. 121, § 3, effective July 14, 1992; 1994, ch. 462, § 2, effective July 15, 1994; 1998, ch. 426, § 375, effective July 15, 1998; 2002, ch. 80, § 7, effective July 15, 2002; 2005, ch. 99, § 424, effective June 20, 2005; 2014, ch. 92, § 274, effective January 1, 2015.

Legislative Research Commission Note.

(7/15/2002). Under the authority of KRS 7.136 , the Reviser of Statutes has changed a reference in subsection (2)(b) of this section so that it reads “paragraph (a) of this subsection” rather than “subsection (a) of this section.”

Opinions of Attorney General.

Each county is not entitled to a board member from each of the six (6) categories listed in subdivision (2)(a) of this section, since the selection for board membership from each county can never rise above the one additional resident member per county per 15,000 population or fraction thereof. OAG 85-16 .

Each county is not guaranteed a representative from the county board of health; in a county in which the county judge/executive decides to be the ex officio member, representation from the county board of health is assured. OAG 85-16 .

Fiscal court’s motion limiting to two the numbers of consecutive terms that members of the airport board, library board, water commission, district board of health, planning commission and parks and recreation board may serve was illegal, since there is no statutory authority for such action. While KRS 173.340 and this section impose a limit on consecutive terms, as relate to a library board and a district board of health, the General Assembly has established no policy limiting the number of consecutive terms for members of the other boards and commissions, and there is no statutory authority for the fiscal court’s enacting such a policy as relates to the four bodies not covered by statute. OAG 85-116 .

212.860. District board of health — Meetings — Quorum — Compensation.

  1. A majority of all the members of the district board of health shall constitute a quorum. The board shall elect a chairman and vice chairman and such other officers as it deems necessary for the board to conduct business. The district board of health may elect an executive committee representative of the district, for the conduct of such business and the discharge of such duties as the board may delegate. The committee shall meet as determined by the board or at the call of the district health officer.
  2. Members of district boards of health shall serve without pay but may be reimbursed for expenses incurred in connection with such service in accordance with state travel regulations and the policies of the cabinet.
  3. The district board of health shall appoint a health officer and fix his salary subject to the approval of the cabinet and applicable merit system regulations.

History. Enact. Acts 1972, ch. 301, § 6; 1982, ch. 228, § 3, effective July 15, 1982.

212.870. District health department — Staff — Compensation.

  1. A district health officer may employ and fix the compensation of, by contract or otherwise, subject to the approval of the cabinet all medical, administrative, technical, clerical, professional, and other employees necessary for the maintenance and operation of the district health department in accordance with standards and merit system provisions prescribed by the cabinet.
  2. In the absence of a district health officer the secretary of the Cabinet for Health and Family Services or his duly appointed representative shall serve as health officer for the district health department.
  3. All employees of county health departments which join a district health department shall become employees of the district health department.

History. Enact. Acts 1972, ch. 301, § 7; 1974, ch. 74, Art. VI, § 107(2); 1998, ch. 426, § 376, effective July 15, 1998; 2005, ch. 99, § 425, effective June 20, 2005.

212.880. Duties of district health departments.

District health departments shall:

  1. Administer and enforce in the district, except as otherwise provided by law, all applicable public health laws of the Commonwealth and all rules and regulations of the Cabinet for Health and Family Services and the rules and regulations of the district board of health;
  2. With the advice of the district board of health and the cabinet, formulate, promote, establish, and execute policies, plans, and programs to safeguard the health of the people; and
  3. Make such statistical or other studies and reports relating to the activities of the cabinet as may be deemed expedient or as may be required by the district board of health or the cabinet.

History. Enact. Acts 1972, ch. 301, § 8; 1974, ch. 74, Art. VI, § 107(3); 1998, ch. 426, § 377, effective July 15, 1998; 2005, ch. 99, § 426, effective June 20, 2005.

212.890. Powers of local and district health departments.

County, city-county, and district health departments may in addition to other powers specified in KRS 212.245 :

  1. Acquire title, by purchase or otherwise, with the approval of the cabinet, to real estate and such other property as may be necessary;
  2. Maintain in each county not less than one (1) office and such others as are deemed necessary;
  3. Lease real and personal property;
  4. Procure liability insurance;
  5. Except as otherwise provided by law, do all other things reasonably necessary to protect and improve the health of the people.

History. Enact. Acts 1972, ch. 301, § 9.

Opinions of Attorney General.

Procurement of liability insurance under this section is permissive. OAG 72-470 .

Although a district health department does not appear to have the power to tax under KRS 212.720 to 212.760 , it does have sufficient police power under KRS 212.245 and this section to qualify it as a political subdivision for purposes of 28 USCS § 103; accordingly, the interest paid by a department on a loan with a local bank would be exempt from federal income tax. OAG 81-342 .

212.900. District health officer.

The health officer of a district health department shall devote his time to the duties of his office and shall not engage in the private practice of medicine. He may also be secretary of the district board of health and keep full minutes of the proceedings of the board in a book provided for that purpose. He may also be the chief administrative officer of the district health department.

History. Enact. Acts 1972, ch. 301, § 10; 1982, ch. 228, § 4, effective July 15, 1982.

Opinions of Attorney General.

Since the position of district health officer is not a county nor a state office, there is no statute prohibiting the district health officer from being at the same time the county coroner, provided that he can carry on and perform his duties as district health officer as required by this section. OAG 75-703 .

By the terms of this section a district health officer cannot engage in the private practice of medicine but he is not prohibited from assuming some other public office, provided that he can carry on and perform his duties as district health officer. OAG 75-703 .

212.910. District health department — Establishment in county containing city of first class or city with population of 15,000 or more — Appropriation.

  1. In any county containing a city of the first class or a city with a population equal to or greater than fifteen thousand (15,000) based upon the most recent federal decennial census, the fiscal court of the county and the legislative body of the city, by joint action, may unite with a district health department in accordance with the provisions of KRS 212.810 to 212.930 .
  2. The appropriation to a district health department shall be paid by the city and by the county in such proportion as may be agreed upon between the city legislative body and fiscal court at the time of joining the district health department. After the district health department has been established the annual expenses of its proportionate share of maintenance and operation shall be borne in the same proportion, or as may be agreed upon between the city legislative body and the fiscal court. The city legislative body and fiscal court shall each make an annual levy sufficient to produce the necessary amount.

History. Enact. Acts 1972, ch. 301, § 11; 2014, ch. 92, § 275, effective January 1, 2015.

212.920. Expenditure for district health department — County board of health to retain trusteeship of county public health tax fund.

  1. Moneys derived from a county public health tax as provided in KRS 212.720 to 212.755 may be expended for the operation and maintenance of a district health department as provided herein.
  2. Upon the creation of a district health department, trusteeship of the county public health tax fund shall be retained by each respective county board of health.

History. Enact. Acts 1972, ch. 301, § 12.

Opinions of Attorney General.

A district health department established pursuant to KRS 212.810 to 212.930 has no taxing power, although funds arising out of public health taxing districts’ special health tax, provided for in KRS 212.720 to 212.755 , may be turned over to such district health department. OAG 83-390 .

212.930. Effect of county health department action.

All actions, orders, and rules and regulations of county boards of health that have formed a district health department shall continue in full force and effect unless subsequently amended, repealed or changed by appropriate action of the district board of health.

History. Enact. Acts 1972, ch. 301, § 13.

Penalties

212.990. Penalties.

  1. Any owner or occupant who fails to comply with an order made under the provisions of subsection (1) of KRS 212.210 shall be fined not less than ten dollars ($10) nor more than one hundred dollars ($100) and each day’s continuance of the nuisance, source of filth, or cause of sickness, after the owner or occupant has been notified to remove it, shall be a separate offense.
  2. Any person who violates KRS 212.715 or any rule or regulation adopted by any consolidated local government, city, county, or city-county board of health, except as otherwise provided by subsection (3) of this section for counties containing cities of the first class or consolidated local government, shall be fined not less than ten dollars ($10) nor more than one hundred dollars ($100) for each day the violation continues.
  3. The violation of any health regulation promulgated by the city-county board of health or of any order made by the board under KRS 212.350 to 212.620 , directing the abatement of a nuisance, source of filth, or cause or probable cause of sickness, is hereby declared to be a misdemeanor, and any person, firm, or corporation, or member of a firm or officer or director of a corporation, upon conviction thereof shall be fined not less than five dollars ($5) nor more than one hundred dollars ($100) for each such offense. If any offense is continued for more than one (1) day, each day upon which such offense occurs or is continued shall be considered and constitute a separate offense and a separate fine may be imposed therefor.
  4. Any physician who fails to comply with the provisions of KRS 212.343 , upon conviction thereof shall be fined not more than five hundred dollars ($500).
  5. Failure to procure the informed consent of those required to give their consent pursuant to KRS 212.345 , prior to performing a nontherapeutic sterilization shall be punishable by imprisonment in the county jail not to exceed one (1) year or a fine not to exceed one thousand dollars ($1,000), or both.
  6. Any physician violating KRS 212.347 shall be imprisoned in the county jail not to exceed one (1) year or shall pay a fine not to exceed one thousand dollars ($1,000), or both.

History. 2055, 2057: amend. Acts 1942, ch. 41, § 21; 1958, ch. 96, § 9; 1974, ch. 352, § 6; 1984, ch. 111, § 179, effective July 13, 1984; 2002, ch. 346, § 210, effective July 15, 2002.

NOTES TO DECISIONS

Cited:

Old Lewis Hunter Distillery Co. v. Commonwealth, 273 Ky. 316 , 116 S.W.2d 647, 1938 Ky. LEXIS 635 ( Ky. 1938 ); Henry v. Parrish, 307 Ky. 559 , 211 S.W.2d 418, 1948 Ky. LEXIS 764 ( Ky. 1948 ); Commonwealth v. Wiman, 308 Ky. 565 , 215 S.W.2d 283, 1948 Ky. LEXIS 1004 ( Ky. 1948 ).

Opinions of Attorney General.

A local board of health does not have the power to order a water company, private or public, to discontinue water services to a customer who is responsible for a public health nuisance. OAG 63-1078 .

When a local health board acts to abate a nuisance injurious to the public health, it must do so pursuant to the provisions of KRS 212.210 , 212.245(6), and subsection (1) of this section. OAG 63-1078 .

CHAPTER 213 Vital Statistics

213.010. Vital statistics — Office quarters — Equipment. [Repealed.]

Compiler’s Notes.

This section (2062a-1, 2062a-2, 2062a-23: amend. Acts 1974, ch. 74, Art. VI, § 74) was repealed by Acts 1990, ch. 369, § 38, effective July 13, 1990.

213.011. Definitions for chapter.

As used in this chapter, unless the context requires otherwise:

  1. “Abortion” means the purposeful interruption of pregnancy with the intention other than to produce a live-born infant or to remove a dead fetus and which does not result in a live birth. “Abortion” excludes management of prolonged retention of product of conception following fetal death;
  2. “Cabinet” means the Cabinet for Health and Family Services;
  3. “Dead body” means a human body or parts of the human body from the condition of which it reasonably may be concluded that death recently occurred;
  4. “Fetal death” means death prior to the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of pregnancy; the death is indicated by the fact that after such expulsion or extraction the fetus does not breathe or show any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles. This definition shall exclude abortion;
  5. “File” means the presentation of a vital record provided for in this chapter for registration by the Vital Statistics Branch;
  6. “Final disposition” means the burial, interment, cremation, removal from the Commonwealth, or other authorized disposition of a dead body or fetus;
  7. “Institution” means any establishment, public or private, which provides inpatient medical, surgical, or diagnostic care or treatment or nursing, custodial, or domiciliary care, or to which persons are committed by law;
  8. “Live birth” means the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of pregnancy which, after the expulsion or extraction, breathes, or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached;
  9. “Provisional death certificate” means an interim certificate identifying the deceased and authorizing a funeral director, or person acting as such, to take custody of the body and, except for cremation, to make final disposition;
  10. “Registration” means the acceptance by the Vital Statistics Branch and the incorporation of vital records provided for in this chapter into its official records;
  11. “System of vital statistics” means the registration, collection, preservation, amendment, and certification of vital records and the collection of other reports required by this chapter;
  12. “Secretary” means the secretary for health and family services;
  13. “Sudden infant death syndrome” means the death of an ostensibly healthy child who is two (2) weeks of age or older but less than three (3) years of age, which occurs suddenly and unexpectedly, with no known or apparent cause, and which remains unexplained after the performance of an autopsy;
  14. “Vital records” means certificates or reports of birth, death, stillbirth, marriage, dissolution of marriage, or annulment, and data related thereto;
  15. “Vital statistics” means the data derived from certificates and reports of birth, death, stillbirth, abortion, marriage, dissolution of marriage, and related reports;
  16. “Certificate” means the certificate of birth, death, stillbirth, marriage, dissolution of marriage, or annulment as required by this chapter;
  17. “Office” means the Office for Children with Special Health Care Needs;
  18. “Hard of hearing infant” means a child at birth with a significant hearing loss which prevents the acquisition of speech and language through normal channels; and
  19. “Hearing risk certificate” means the certificate that includes questions which identify newborn babies with a higher risk than normal for hearing loss.

History. Enact. Acts 1990, ch. 369, § 1, effective July 13, 1990; 1992, ch. 144, § 14, effective July 14, 1992; 1994, ch. 405, § 80, effective July 15, 1994; 1998, ch. 426, § 378, effective July 15, 1998; 2005, ch. 99, § 427, effective June 20, 2005; 2020 ch. 36, § 21, effective July 15, 2020.

Legislative Research Commission Notes.

(7/14/2018). Under the authority of KRS 7.136(2), one or more references to the “Commission for Children with Special Health Care Needs” in this statute have been changed in codification to the “Office for Children with Special Health Care Needs” to reflect the renaming of the commission by the General Assembly in 2018 Ky. Acts ch. 114.

213.016. Vital statistics program.

There shall be established in the Department for Public Health, Cabinet for Health and Family Services, a vital statistics program which shall maintain and operate the only official system of vital statistics in the Commonwealth.

History. Enact. Acts 1990, ch. 369, § 2, effective July 13, 1990; 1998, ch. 426, § 379, effective July 15, 1998; 2005, ch. 99, § 428, effective June 20, 2005.

Research References and Practice Aids

Cross-References.

Archives and records, KRS Chapter 171.

213.020. Registration districts. [Repealed.]

Compiler’s Notes.

This section (2062a-3: amend. Acts 1958, ch. 97, § 1, effective June 19, 1958) was repealed by Acts 1990, ch. 369, § 38, effective July 13, 1990.

213.021. Administrative regulations.

The Cabinet for Health and Family Services shall adopt administrative regulations pursuant to KRS Chapter 13A for the purpose of carrying out the provisions of this chapter.

History. Enact. Acts 1990, ch. 369, § 3, effective July 13, 1990; 1998, ch. 426, § 380, effective July 15, 1998; 2005, ch. 99, § 429, effective June 20, 2005.

213.026. State registrar.

The secretary for health and family services shall designate the state registrar of vital statistics, hereinafter referred to as “state registrar,” in accordance with merit system laws and administrative regulations.

History. Enact. Acts 1990, ch. 369, § 4, effective July 13, 1990; 1998, ch. 426, § 381, effective July 15, 1998; 2005, ch. 99, § 430, effective June 20, 2005.

Research References and Practice Aids

Cross-References.

Powers and duties of secretary for health and family services, KRS 211.090 .

213.030. Local registrars — Deputies. [Repealed.]

Compiler’s Notes.

This section (2062a-4: amend. Acts 1954, ch. 135, § 1; 1958, ch. 97, § 2, effective June 19, 1958; 1974, ch. 74, Art. VI, § 107(1), (11)) was repealed by Acts 1990, ch. 369, § 38, effective July 13, 1990.

213.031. Duties of state registrar.

The state registrar, under the supervision of the commissioner of health, shall:

  1. Administer and enforce the provisions of this chapter and the administrative regulations issued hereunder; issue instructions for the efficient administration of the system of vital statistics; direct the system and Vital Statistics Branch and be custodian of its records; supervise the activities of all persons when they are engaged in the operation of the system; and conduct training programs to promote uniformity of the system’s policy and procedures throughout the Commonwealth;
  2. With the approval of the cabinet, design, furnish, and distribute forms required by this chapter and the administrative regulations issued hereunder, or prescribe other means for transmission of data to accomplish the purpose of complete and accurate reporting and registration;
  3. Assist in preparing and publishing reports of vital statistics of the Commonwealth and other reports as required;
  4. Provide to local health departments copies of or data derived from certificates and reports required under this chapter. The state registrar shall establish a schedule with each local health department for transmittal of the copies or data. The copies shall remain the property of the Vital Statistics Branch, and the uses which may be made of them and the period of their retention in the county shall be governed by the state registrar;
  5. Prepare and maintain a complete continuous index of all vital records registered under this chapter and provide, at not more than two (2) year intervals, a copy of the index to each local registrar; and
  6. Investigate cases of irregularity or violation of this chapter and when the cabinet deems it necessary, report violations to the Commonwealth’s attorney of the proper county for prosecution.

History. Enact. Acts 1990, ch. 369, § 5, effective July 13, 1990; 1992, ch. 195, § 11, effective July 14, 1992; 2005, ch. 99, § 431, effective June 20, 2005; 2020 ch. 36, § 22, effective July 15, 2020.

Opinions of Attorney General.

Private or public institutions which own copies of the Register of Births and Deaths are under no legal obligation to return this property to the Cabinet for Human Resources (now Health and Family Services) but if the institution is in possession of copies of the Register under a loan agreement with the Cabinet, the Cabinet as the owner might request that they be promptly returned depending upon the specifications of the loan agreement. OAG 91-25 .

The Department for Libraries and Archives does not have the power to retrieve the various copies of the Register of Births and Deaths from public libraries, for no statute gives such broad supervisory authority to the Department for Libraries and Archives over local public libraries. OAG 91-25 .

The Department for Libraries and Archives does not have to comply with a request from the Cabinet for Human Resources (now Health and Family Services) that copies of the index books stored at the archives be removed from public inspection. The statutes provide little direction as to who becomes the legal custodian of records which are transferred to the Kentucky Department for Libraries and Archives, for under KRS 61.870 either the state archives or the official custodian of the agency might be legally deemed to be the custodian of the records, and since the copies of the Register are open to public inspection the Department for Libraries and Archives need not comply with the request of the Cabinet to restrict access to the records. OAG 91-25 .

The microfilm copies of the Register of Births and Deaths now in the possession of the university libraries are private publications which they obtained from the Latter Day Saints, and the Cabinet for Human Resources (now Health and Family Services) has no legal authority to replevin these materials. OAG 91-25 .

213.036. Local registrars — Deputy registrars — Services provided by local registrars and local health departments.

  1. Each county in the Commonwealth shall carry out the provisions of this chapter.
  2. The secretary may, upon the recommendation of the state registrar, designate a local registrar in each county to aid in the efficient administration of the system of vital statistics. The local registrar shall be an employee of the local health department. The designation may be revoked by the secretary.
  3. The local health department may designate one (1) or more employees of the local health department as deputy registrar. The local registrar may also appoint persons as deputy registrars who are not employees of the local health department if, in the opinion of the cabinet, the appointments are necessary. All appointments shall be subject to the approval of the state registrar.
  4. The local registrar shall supply the Vital Statistics Branch forms and instructions to persons responsible for the completion of the forms.
  5. The local health department shall provide for declaration of paternity services and transmit original certificates and affidavits of paternity to the Vital Statistics Branch as directed by the state registrar.

History. Enact. Acts 1990, ch. 369, § 6, effective July 13, 1990; 1992, ch. 166, § 1, effective July 14, 1992; 1998, ch. 255, § 13, effective July 15, 1998; 1998, ch. 426, § 382, effective July 15, 1998; 2005, ch. 99, § 432, effective June 20, 2005; 2020 ch. 36, § 23, effective July 15, 2020.

213.040. Births to be registered. [Repealed.]

Compiler’s Notes.

This section (2062a-12) was repealed by Acts 1990, ch. 369, § 38, effective July 13, 1990.

213.041. National uniformity of documents.

  1. In order to promote and maintain nationwide uniformity in the system of vital statistics, the forms of certificates and reports required by this chapter, or by administrative regulations adopted hereunder, shall include, as a minimum, the items recommended by the federal agency responsible for national vital statistics.
  2. Each certificate, report, and other documents required by this chapter shall be on a form or in a format prescribed by the cabinet with due consideration for national uniformity.
  3. No certificate shall be held to be complete and correct that does not supply all items of information called for therein or satisfactorily account for their omission, except as provided in KRS 199.570(3). If a certificate is incomplete, the state registrar shall immediately notify the responsible person and require that person to supply the missing items, if that information can be obtained.
  4. All vital records shall contain the data required for registration.
  5. No person shall charge or collect from any member of a family in which a birth or death occurs, any fee for completing and filing a report, or any other act or duty imposed upon them by this chapter.

History. Enact. Acts 1990, ch. 369, § 7, effective July 13, 1990; 2008, ch. 5, § 1, effective July 15, 2008; 2020 ch. 36, § 24, effective July 15, 2020.

213.046. Registration of births required — Establishment of paternity — Duties of institution and cabinet — Contents of birth certificate.

  1. A certificate of birth for each live birth which occurs in the Commonwealth shall be filed with the state registrar within five (5) working days after such birth and shall be registered if it has been completed and filed in accordance with this section and applicable administrative regulations. No certificate shall be held to be complete and correct that does not supply all items of information called for in this section and in KRS 213.051 , or satisfactorily account for their omission except as provided in KRS 199.570(3). If a certificate of birth is incomplete, the local registrar shall immediately notify the responsible person and require that person to supply the missing items, if that information can be obtained.
  2. When a birth occurs in an institution or en route thereto, the person in charge of the institution or that person’s designated representative, shall obtain the personal data, prepare the certificate, secure the signatures required, and file the certificate as directed in subsection (1) of this section or as otherwise directed by the state registrar within the required five (5) working days. The physician or other person in attendance shall provide the medical information required for the certificate and certify to the fact of birth within five (5) working days after the birth. If the physician or other person in attendance does not certify to the fact of birth within the five (5) working day period, the person in charge of the institution shall complete and sign the certificate.
  3. When a birth occurs in a hospital or en route thereto to a woman who is unmarried, the person in charge of the hospital or that person’s designated representative shall immediately before or after the birth of a child, except when the mother or the alleged father is a minor:
    1. Meet with the mother prior to the release from the hospital;
    2. Attempt to ascertain whether the father of the child is available in the hospital, and, if so, to meet with him, if possible;
    3. Provide written materials and oral, audio, or video materials about paternity;
    4. Provide the unmarried mother, and, if possible, the father, with the voluntary paternity form necessary to voluntarily establish paternity;
    5. Provide a written and an oral, audio, or video description of the rights and responsibilities, the alternatives to, and the legal consequences of acknowledging paternity;
    6. Provide written materials and information concerning genetic paternity testing;
    7. Provide an opportunity to speak by telephone or in person with staff who are trained to clarify information and answer questions about paternity establishment;
    8. If the parents wish to acknowledge paternity, require the voluntary acknowledgment of paternity obtained through the hospital-based program be signed by both parents and be authenticated by a notary public;
    9. Upon both the mother’s and father’s request, help the mother and father in completing the affidavit of paternity form;
    10. Upon both the mother’s and father’s request, transmit the affidavit of paternity to the state registrar; and
    11. In the event that the mother or the alleged father is a minor, information set forth in this section shall be provided in accordance with Civil Rule 17.03 of the Kentucky Rules of Civil Procedure.

      If the mother or the alleged father is a minor, the paternity determination shall be conducted pursuant to KRS Chapter 406.

  4. The voluntary acknowledgment of paternity and declaration of paternity forms designated by the Vital Statistics Branch shall be the only documents having the same weight and authority as a judgment of paternity.
  5. The Cabinet for Health and Family Services shall:
    1. Provide to all public and private birthing hospitals in the state written materials in accessible formats and audio or video materials concerning paternity establishment forms necessary to voluntarily acknowledge paternity;
    2. Provide copies of a written description in accessible formats and an audio or video description of the rights and responsibilities of acknowledging paternity; and
    3. Provide staff training, guidance, and written instructions regarding voluntary acknowledgment of paternity as necessary to operate the hospital-based program.
  6. When a birth occurs outside an institution, verification of the birth shall be in accordance with the requirements of the state registrar and a birth certificate shall be prepared and filed by one (1) of the following in the indicated order of priority:
    1. The physician in attendance at or immediately after the birth; or, in the absence of such a person,
    2. A midwife or any other person in attendance at or immediately after the birth; or, in the absence of such a person,
    3. The father, the mother, or in the absence of the father and the inability of the mother, the person in charge of the premises where the birth occurred or of the institution to which the child was admitted following the birth.
  7. No physician, midwife, or other attendant shall refuse to sign or delay the filing of a birth certificate.
  8. If a birth occurs on a moving conveyance within the United States and the child is first removed from the conveyance in the Commonwealth, the birth shall be registered in the Commonwealth, and the place where the child is first removed shall be considered the place of birth. If a birth occurs on a moving conveyance while in international waters or air space or in a foreign country or its air space and the child is first removed from the conveyance in the Commonwealth, the birth shall be registered in the Commonwealth, but the certificate shall show the actual place of birth insofar as can be determined.
  9. The following provisions shall apply if the mother was married at the time of either conception or birth or anytime between conception and birth:
    1. If there is no dispute as to paternity, the name of the husband shall be entered on the certificate as the father of the child. The surname of the child shall be any name chosen by the parents; however, if the parents are separated or divorced at the time of the child’s birth, the choice of surname rests with the parent who has legal custody following birth.
    2. If the mother claims that the father of the child is not her husband and the husband agrees to such a claim and the putative father agrees to the statement, a three (3) way affidavit of paternity may be signed by the respective parties and duly notarized. The state registrar of vital statistics shall enter the name of a nonhusband on the birth certificate as the father and the surname of the child shall be any name chosen by the mother.
    3. If a question of paternity determination arises which is not resolved under paragraph (b) of this subsection, it shall be settled by the District Court.
  10. The following provisions shall apply if the mother was not married at the time of either conception or birth or between conception and birth or the marital relationship between the mother and her husband has been interrupted for more than ten (10) months prior to the birth of the child:
    1. The name of the father shall not be entered on the certificate of birth. The state registrar shall upon acknowledgment of paternity by the father and with consent of the mother pursuant to KRS 213.121 , enter the father’s name on the certificate. The surname of the child shall be any name chosen by the mother and father. If there is no agreement, the child’s surname shall be determined by the parent with legal custody of the child.
    2. If an affidavit of paternity has been properly completed and the certificate of birth has been filed accordingly, any further modification of the birth certificate regarding the paternity of the child shall require an order from the District Court.
    3. In any case in which paternity of a child is determined by a court order, the name of the father and surname of the child shall be entered on the certificate of birth in accordance with the finding and order of the court.
    4. In all other cases, the surname of the child shall be any name chosen by the mother.
  11. If the father is not named on the certificate of birth, no other information about the father shall be entered on the certificate. In all cases, the maiden name of the gestational mother shall be entered on the certificate.
  12. Any child whose surname was restricted prior to July 13, 1990, shall be entitled to apply to the state registrar for an amendment of a birth certificate showing as the surname of the child, any surname chosen by the mother or parents as provided under this section.
  13. The birth certificate of a child born as a result of artificial insemination shall be completed in accordance with the provisions of this section.
  14. Each birth certificate filed under this section shall include all Social Security numbers that have been issued to the parents of the child.
  15. Either of the parents of the child, or other informant, shall attest to the accuracy of the personal data entered on the certificate in time to permit the filing of the certificate within ten (10) days prescribed in subsection (1) of this section.
  16. When a birth certificate is filed for any birth that occurred outside an institution, the Cabinet for Health and Family Services shall forward information regarding the need for an auditory screening for an infant and a list of options available for obtaining an auditory screening for an infant. The list shall include the Office for Children with Special Health Care Needs, local health departments as established in KRS Chapter 212, hospitals offering obstetric services, alternative birthing centers required to provide an auditory screening under KRS 216.2970 , audiological assessment and diagnostic centers approved by the Office for Children with Special Health Care Needs in accordance with KRS 211.647 and licensed audiologists, and shall specify the hearing methods approved by the Office for Children with Special Health Care Needs in accordance with KRS 216.2970 .

History. Enact. Acts 1990, ch. 369, § 8, effective July 13, 1990; 1992, ch. 166, § 2, effective July 14, 1992; 1994, ch. 405, § 81, effective July 15, 1994; 1996, ch. 365, § 4, effective July 15, 1996; 1998, ch. 255, § 14, effective July 15, 1998; 1998, ch. 426, § 383, effective July 15, 1998; 2000, ch. 308, § 27, effective July 14, 2000; 2005, ch. 99, § 433, effective June 20, 2005; 2009, ch. 102, § 4, effective June 25, 2009; 2020 ch. 36, § 25, effective July 15, 2020.

Legislative Research Commission Notes.

(8/23/2019). In 2018 Ky. Acts ch. 114, sec. 1, the General Assembly renamed the “Commission for Children with Special Health Care Needs” as the “Office for Children with Special Health Care Needs.” A reference to that “Commission” was changed to “Office” in subsection (16) of this statute. This name correction should have been addressed when 2018 Ky. Acts ch. 114 was codified, but it wasn't. This change is being made now under the authority of KRS 7.136(2).

(7/14/2018). Under the authority of KRS 7.136(2), one or more references to the “Commission for Children with Special Health Care Needs” in this statute have been changed in codification to the “Office for Children with Special Health Care Needs” to reflect the renaming of the commission by the General Assembly in 2018 Ky. Acts ch. 114.

(7/14/2018). Under the authority of KRS 7.136(2), one or more references to the “Commission for Children with Special Health Care Needs” in this statute have been changed in codification to the “Office for Children with Special Health Care Needs” to reflect the renaming of the commission by the General Assembly in 2018 Ky. Acts ch. 114.

NOTES TO DECISIONS

1.Surname of Child.

Since parents, with child born out of wedlock and unable to agree on the child’s surname, had joint custody of child, subsection 8(a) (now (10)(a)) of this section did not apply and subsection 8(c) (now (10)(c)) only mandated that the name of the father and surname of the child be entered on the birth certificate and not that the child bear the declared father’s surname; therefore, the determination of what surname the child should bear was dependent upon the best interests of the child. Hazel v. Wells, 918 S.W.2d 742, 1996 Ky. App. LEXIS 35 (Ky. Ct. App. 1996).

Where parent’s have joint custody of a child born out of wedlock, the only factor relevant to the determination of what surname the child should bear is the best interest of the child. Factors to be considered in evaluating the best interest of the child include: identification as part of a family unit; effect of the child’s relationship with each parent; motivation of the parties; preserving parental relationships; the child’s age, preference, possible insecurity, embarrassment or lack of identity; length of time surname used; parental misconduct and failure to support child. Hazel v. Wells, 918 S.W.2d 742, 1996 Ky. App. LEXIS 35 (Ky. Ct. App. 1996).

2.Affidavit of Paternity.

Family court erred by concluding that appellant was the legal father of the child because, although the affidavit of paternity under KRS 213.046 created a rebuttable presumption of paternity under KRS 406.021 , the father and the mother had acknowledged that his sworn affidavit of paternity was false and they admitted that he was not the child’s biological father; thus, the presumption of paternity was clearly rebutted. J.R.A. v. G.D.A., 314 S.W.3d 764, 2010 Ky. App. LEXIS 103 (Ky. Ct. App. 2010).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Acknowledgment of Paternity, Form 255.02.

213.047. Payment for completed affidavit-of-paternity form.

The Cabinet for Health and Family Services shall pay the sum of ten dollars ($10) to an institution or local health department for each completed affidavit-of-paternity form returned to the state registrar by the institution or local health department, pursuant to KRS 213.046 , limited to the appropriated funds for the purpose of KRS 213.046 .

History. Enact. Acts 1992, ch. 166, § 5, effective July 14, 1992; 1998, ch. 426, § 384, effective July 15, 1998; 2005, ch. 99, § 434, effective June 20, 2005; 2020 ch. 36, § 26, effective July 15, 2020.

213.049. Contents of paternity judgment order — Transmittal to registrar.

  1. All paternity judgment orders issued or modified by a court on or after July 15, 1992, shall include, but not be limited to, the following information about the father, if the information is known at the time the order is set:
    1. Full name;
    2. Social Security number;
    3. Age at time of the child’s birth;
    4. Place of birth as to the state or foreign country; and
    5. Current address.
  2. The order shall be transmitted by the Circuit Court clerk of the court with jurisdiction to the state registrar of vital statistics no later than the fifteenth day of each calendar month.

History. Enact. Acts 1992, ch. 166, § 4, effective July 14, 1992.

213.050. Certificate of birth, who to sign and file — Name of father if child born out of wedlock — Form of certificate — Notice of birth — Hearing risk certificate required. [Repealed.]

Compiler’s Notes.

This section (2062a-13, 2062a-14, 2062a-19: amend. Acts 1954, ch. 135, § 2; 1958, ch. 97, § 3; 1970, ch. 232, § 2; 1974, ch. 74, Art. VI, § 107(1), (6), (11); 1974, ch. 221, § 1, effective July 1, 1975; 1986, ch. 489, § 1, effective July 15, 1986) was repealed by Acts 1990, ch. 369, § 38, effective July 13, 1990.

213.051. Information reported by person who assumes custody of live-born infant of unknown parentage.

  1. The person who assumes the custody of a live-born infant of unknown parentage shall report on a form and in a manner prescribed by the state registrar within five (5) working days to the Cabinet for Health and Family Services the following information:
    1. The date and place of finding;
    2. Sex and approximate birth date of child;
    3. Name and address of the person or institution with which the child has been placed for care;
    4. Name given to the child by the custodian of the child; and
    5. Other data as required by the state registrar to complete a birth certificate.
  2. The place where the child was found shall be entered as the place of birth.
  3. A report registered under this section shall constitute the certificate of birth for the child.
  4. If the child is identified and a certificate of birth is found or obtained, the report registered under this section shall be placed in a special file and shall not be subject to inspection except upon order of a Circuit Court.

History. Enact. Acts 1990, ch. 369, § 9, effective July 13, 1990; 1998, ch. 426, § 385, effective July 15, 1998; 2005, ch. 99, § 435, effective June 20, 2005; 2020 ch. 36, § 27, effective July 15, 2020.

213.053. Flagging birth certificate of missing child — Procedure when copy requested. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 72, § 2, effective July 15, 1986) was repealed by Acts 1990, ch. 369, § 38, effective July 13, 1990.

213.055. Abortion reporting — Content of forms — Confidentiality. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 255, § 14; 1982, ch. 342, § 8, effective July 15, 1982) was repealed by Acts 1990, ch. 369, § 38, effective July 13, 1990.

213.056. Filing of delayed birth certificate.

  1. If a certificate of birth of a living person born in the Commonwealth has not been filed within the time period as provided in KRS 213.046 , a certificate of birth may be filed in accordance with the administrative regulations of the cabinet. The certificate shall be registered subject to such evidentiary requirements as the cabinet shall by regulation prescribe to substantiate the alleged facts of birth.
  2. In accordance with the provisions of this section and the administrative regulations established thereunder, the state registrar may issue a record of foreign birth for a person born outside the United States registration area who is subsequently adopted by a Kentucky resident and whose record of birth cannot be obtained from the country of birth.
  3. Certificates of birth registered one (1) year or more after the date of birth shall be made on forms prescribed and furnished by the state registrar marked “delayed” and shall show on the face of the certificate the date of the delayed registration.
  4. A summary statement of the evidence submitted in support of the delayed registration shall be endorsed on the certificate.
  5. The cabinet may refuse to accept any application for a delayed birth certificate or record of foreign birth on which the applicant fails to provide such information as the cabinet may require.
  6. Each birth certificate filed under this section shall include all Social Security numbers that have been issued to the parents of the child.

HISTORY: Enact. Acts 1990, ch. 369, § 10, effective July 13, 1990; 1992, ch. 166, § 3, effective July 14, 1992; 2018 ch. 159, § 11, effective July 14, 2018.

213.060. Supplemental report of birth. [Repealed.]

Compiler’s Notes.

This section (2062a-15) was repealed by Acts 1990, ch. 369, § 38, effective July 13, 1990.

213.061. Flagged birth certificate of child reported missing.

  1. Upon notification by the Justice and Public Safety Cabinet that a child born in the Commonwealth is missing, the state registrar of vital statistics shall flag the birth certificate record of the child in such a manner that whenever a copy of the birth certificate or information regarding the birth record is requested, the state registrar shall be alerted to the fact that the certificate is that of a missing child.
  2. Upon notification by the Justice and Public Safety Cabinet that a missing child has been recovered, the state registrar shall remove the flag from the child’s birth certificate record.
  3. In response to any inquiry for a copy of a flagged birth certificate of a missing child, the state registrar shall not provide a copy of the birth certificate except as approved by the Justice and Public Safety Cabinet.
  4. When a copy of a flagged birth certificate is requested in person, the state registrar or the designee accepting the request shall inform the person making the request that a copy of a certificate will be mailed to the requester. The state registrar shall, upon the departure of the requesting person, immediately notify the Justice and Public Safety Cabinet as to the request and the information obtained pursuant to this subsection.
  5. When a copy of a flagged birth certificate is requested in writing, the state registrar shall immediately notify the Justice and Public Safety Cabinet as to the request and shall provide a copy of the written request.

History. Enact. Acts 1990, ch. 369, § 11, effective July 13, 1990; 2007, ch. 85, § 245, effective June 26, 2007.

213.066. Reports of adoptions and annulments or amendments of adoptions.

  1. For each adoption decreed by a Circuit Court in the Commonwealth, the court shall require the preparation of a report of adoption on a form prescribed and furnished by the state registrar. The report shall include the facts necessary to establish a new certificate of birth of the person adopted and identify the order of adoption, and be certified by the clerk of the court.
  2. Information necessary to prepare the report of adoption shall be furnished by each petitioner for adoption or the petitioner’s attorney. The Department for Community Based Services or any other agency or person having knowledge of the facts shall supply the court with the additional information necessary to complete the report. The provision of the information shall be prerequisite to the issuance of a final decree in the matter by the court.
  3. If an adoption decree is amended or annulled, the clerk of the court shall prepare a report thereof which shall include the facts necessary to identify the original adoption report and the facts amended in the adoption decree necessary to properly amend the birth record.
  4. Not later than the fifteenth day of each calendar month or more frequently, the clerk of the court shall forward to the state registrar reports of decrees of adoption, annulments of adoption, and amendments of decrees of adoption which were entered in the preceding month, together with such related reports as the state registrar shall require.
  5. If the state registrar receives a report of adoption, annulment of adoption, or amendment of a decree of adoption for a person born outside this state, the state registrar shall forward the report to the state registrar in the state of birth. If the birth occurred in a foreign country and the child was not a citizen of the United States at the time of birth, the state registrar shall prepare a record of foreign birth as provided by KRS 213.056(2). If the child was born in Canada, the state registrar shall also send a copy of the report of adoption, annulment of adoption, or amendment of a decree of adoption to the appropriate registration authority in that country.

History. Enact. Acts 1990, ch. 369, § 12, effective July 13, 1990; 1998, ch. 426, § 386, effective July 15, 1998; 2000, ch. 14, § 44, effective July 14, 2000.

213.070. Stillbirths. [Repealed.]

Compiler’s Notes.

This section (2062a-6: amend. Acts 1954, ch. 135, § 3, effective July 1, 1954; 1974, ch. 74, Art. VI, § 107(1), (11)) was repealed by Acts 1990, ch. 369, § 38, effective July 13, 1990.

213.071. Establishment of new birth certificate for person born in Commonwealth — Findings of paternity reported — Procedure when judgments or acknowledgment of paternity is reversed or modified — Copies of original birth certificate sealed — Birth certificate for adopted child.

  1. The state registrar shall establish a new certificate of birth for a person born in the Commonwealth when the state registrar receives the following:
    1. A report of adoption as provided in KRS 213.066 or a report of adoption prepared and filed in accordance with the laws of another state or foreign country or a certified copy of the decree of adoption, together with the information necessary to identify the original certificate of birth and to establish a new certificate of birth; or
    2. A request that a new certificate be established as prescribed by administrative regulation and the evidence as required by administrative regulation proving that the person has been legitimated, or that a court of competent jurisdiction has determined the paternity of the person, or that both parents have acknowledged the paternity of the person in which case the surname of the child shall be changed in accordance with KRS 213.046 .
  2. If paternity is determined in a court action, the clerk shall report the findings of the court to the state registrar on forms prescribed and furnished for that purpose. The reports shall be made no later than the fifteenth of the month following the date of the order.
  3. If a new certificate is established, the actual place and date of birth shall be shown except in the case of adoption. If the adopted child is under eighteen (18) years of age, the birth certificate shall not contain any information revealing the child is adopted and shall show the adoptive parent or parents as the natural parent or parents of the child. The new birth certificate, when issued, shall not contain the place of birth, hospital, or name of the doctor or midwife. This information shall be given only by an order of the court in which the child was adopted. If the child was born in the Commonwealth, the new birth certificate shall show the residence of the adoptive parents as the birthplace of the child, and this shall be deemed for all legal purposes to be the birthplace of the child.
  4. The new certificate shall be substituted for the original certificate of birth in the files, and the original certificate of birth and the evidence of adoption, paternity determination, or paternity acknowledgment shall not be subject to inspection except upon order of a court of competent jurisdiction.
  5. If any judgment under this section is reversed, amended, modified, or vacated in any particular, the clerk of the court shall notify the state registrar of the reversal or modification, and the state registrar shall make the changes, if any, in the records as may be necessary by the reversal or modification, or if the voluntary acknowledgment of paternity pursuant to KRS 213.046(4) is rescinded, the state registrar shall make the changes, if any, in the records as may be necessary by the reversal, modification, or rescission of the voluntary acknowledgment of paternity.
  6. If a new certificate of birth is established by the state registrar, all copies of the original certificate of birth on file shall be sealed.
  7. If no birth certificate is on file for an adopted child born in Kentucky, the state registrar shall prepare a certificate of birth in accordance with information furnished by the clerk of the Circuit Court which issued the adoption order. The state registrar shall furnish the clerks of the Circuit Courts the necessary forms to carry out the provisions of this section.

History. Enact. Acts 1990, ch. 369, § 13, effective July 13, 1990; 1998, ch. 255, § 15, effective July 15, 1998; 2020 ch. 36, § 28, effective July 15, 2020.

213.075. Application. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 51, § 5, effective June 16, 1960) was repealed by Acts 1990, ch. 369, § 38, effective July 13, 1990.

213.076. Certificate of death or provisional certificate of death required to be filed — Method of filing — Notice of military burial rights — Medical certification of cause of death — Contents of certificate — Supplemental report — Verification-of-death statements — Interment or other disposition of body prohibited unless accompanied by copy of certificate — Authorization for disinterment — Change in death certificate.

    1. A certificate of death or a provisional certificate of death for each death which occurs in the Commonwealth shall be filed with the cabinet or as otherwise directed by the state registrar prior to final disposition, and it shall be registered if it has been completed and filed in accordance with this section. The funeral director, or person acting as such, who first takes custody of a dead body shall be responsible for filing the certificate of death. The funeral director, or person acting as such, shall obtain the required personal and statistical particulars from the person best qualified to supply them over the signature and address of the informant. Effective January 1, 2015, all certificates of death shall be filed with the cabinet using the Kentucky Electronic Death Registration System in a manner directed by the state registrar. (1) (a) A certificate of death or a provisional certificate of death for each death which occurs in the Commonwealth shall be filed with the cabinet or as otherwise directed by the state registrar prior to final disposition, and it shall be registered if it has been completed and filed in accordance with this section. The funeral director, or person acting as such, who first takes custody of a dead body shall be responsible for filing the certificate of death. The funeral director, or person acting as such, shall obtain the required personal and statistical particulars from the person best qualified to supply them over the signature and address of the informant. Effective January 1, 2015, all certificates of death shall be filed with the cabinet using the Kentucky Electronic Death Registration System in a manner directed by the state registrar.
    2. At the time of obtaining the required personal and statistical particulars from the informant referred to in paragraph (a) of this subsection, the funeral director, or person acting as such, shall ask the informant if the deceased ever served in the military. If the informant answers in the affirmative, then the funeral director, or person acting as such, shall provide the informant with a fact sheet stating military burial rights supplied by the Kentucky Department of Veterans’ Affairs.
    3. The funeral director, or person acting as such, shall within five (5) days of the death, present the certificate to the attending physician, advanced practice registered nurse, or physician assistant, if any, to the physician pronouncing death, or to the health officer or coroner as directed by the state registrar, for the medical certificate of the cause of death and other particulars necessary to complete the record as required by this chapter.
    4. It shall be unlawful for an institution to release a dead human body until the funeral director, or person acting as such, has completed and filed with the local registrar or person in charge of the institution, a provisional certificate of death. If death occurs outside an institution, the provisional certificate shall be filed with the local registrar by the funeral director, or person acting as such, prior to final disposition of the dead body. A copy of the provisional certificate of death signed by the person with whom it was filed, shall constitute authority for the possession, transportation, and, except for cremation, final disposition of the body.
    5. All persons having in their possession a completed provisional certificate of death shall file the certificate at not more than weekly intervals with the local registrar.
    6. If the place of death is unknown but the dead body is found in the Commonwealth, the certificate of death shall be completed and filed in accordance with this section. The place where the body is found shall be shown as the place of death. If the date of death is unknown, it shall be determined by approximation subject to amendment upon completion of any postmortem examination required to be performed.
    7. If death occurs in a moving conveyance in the United States and the body is first removed from the conveyance in the Commonwealth, the death shall be registered in Kentucky, and the place where it is first removed shall be considered the place of death. If a death occurs on a moving conveyance while in international waters or air space or in a foreign country or its air space, and the body is first removed from the conveyance in the Commonwealth, the death shall be registered in Kentucky, but the certificate shall show the actual place of death insofar as can be determined.
  1. If any certificate of death is incomplete or unsatisfactory, the state registrar shall call attention to the defects in the certificate and require the person responsible for the entry to complete or correct. The state registrar may also require additional information about the circumstances and medical conditions surrounding a death in order to properly code and classify the underlying cause. A funeral director shall not be held responsible for the failure of a physician, advanced practice registered nurse, physician assistant, dentist, chiropractor, or coroner to complete or correct the entry for which he or she is responsible.
  2. The medical certification shall be completed, signed, and returned to the funeral director within five (5) working days after presentation to the physician, advanced practice registered nurse, physician assistant, dentist, or chiropractor in charge of the patient’s care for the illness or condition which resulted in death, except when inquiry is required by KRS 72.400 to 72.475 . In such cases, or if the cause of death is unknown or under investigation, the cause of death shall be shown as such on the certificate. A supplemental report providing the medical information omitted from the original certificate shall be filed by the certifier with the state registrar within five (5) days after receiving results of the inquiry as required by KRS 72.400 to 72.475 . The supplemental report shall be made a part of the existing death certificate. This report shall be considered an amendment, and the death certificate shall be marked “Amended.” In the absence of the physician, advanced practice registered nurse, physician assistant, dentist, or chiropractor, or with such person’s approval, the certificate may be completed and signed by his associate physician, advanced practice registered nurse, physician assistant, dentist, or chiropractor, or the chief medical officer of the institution in which death occurred, or the physician who performed an autopsy upon the decedent, or a physician, advanced practice registered nurse, or physician assistant employed by the local health department, if the individual has access to the medical history of the case and death is due to natural causes.
  3. If death occurs more than thirty-six (36) hours after the decedent was last treated or attended by a physician, advanced practice registered nurse, physician assistant, dentist, or chiropractor, the case shall be referred to the coroner for investigation to determine and certify the cause of death. In the event that a coroner is not available to sign the certificate and there is no duly appointed deputy, the county judge/executive shall appoint a competent person to investigate the death and certify to its cause.
    1. The physician, advanced practice registered nurse, physician assistant, dentist, chiropractor, or coroner who certifies to the cause of death shall return the certificate to the funeral director, or person acting as such, who, in turn, shall file the certificate directly with the Vital Statistics Branch. Any certified copies of the record requested at the time of filing shall be issued in not more than two (2) working days. (5) (a) The physician, advanced practice registered nurse, physician assistant, dentist, chiropractor, or coroner who certifies to the cause of death shall return the certificate to the funeral director, or person acting as such, who, in turn, shall file the certificate directly with the Vital Statistics Branch. Any certified copies of the record requested at the time of filing shall be issued in not more than two (2) working days.
    2. In the case of a death in which diabetes was known to be an underlying cause or contributing condition, diabetes shall be listed in the appropriate location on the death certificate by the physician, advanced practice registered nurse, physician assistant, dentist, chiropractor, or coroner who certifies to the cause of death.
  4. Three (3) free verification-of-death statements shall be provided to the funeral director by the Vital Statistics Branch for every death in the Commonwealth of Kentucky.
  5. The body of any person whose death occurs in Kentucky shall not be interred, deposited in a vault or tomb, cremated, or otherwise disposed of, or removed from or into any registration district, until a provisional certificate of death has been filed with the local registrar of the registration district in which the death occurs. If the death occurred from a disease declared by the Cabinet for Health and Family Services to be infectious, contagious, or communicable and dangerous to the public health, no permit for the removal or other disposition of the body shall be granted by the registrar except under conditions prescribed by the Cabinet for Health and Family Services and the local health department. The Cabinet for Health and Family Services shall identify by regulation those communicable diseases which require blood and body fluid precautions. If a person who has been diagnosed as being infected with a communicable disease for which blood and body fluid precautions are required, dies within a health facility as defined in KRS 216B.015 , the facility shall notify any embalmer or funeral director to whom the body will be transported of the need for such precautions. The notice shall be provided by including the statement “Blood and Body Fluid Precautions” on the provisional report-of-death form as prescribed by the Cabinet for Health and Family Services. Lack of this notice shall not relieve any embalmer or funeral director from taking universal blood and body fluid precautions as are recommended by the United States Department of Health and Human Services, Centers for Disease Control for Morticians’ Services. No embalmer or funeral director shall charge more for embalming the remains of a person with a communicable disease which requires blood and body fluid precautions than the price for embalming services listed on the price list funeral providers are required to maintain and provide to consumers pursuant to 16 C.F.R. Sec. 453.2 (1988).
  6. A burial-transit permit for the final disposition issued under the law of another state which accompanies a dead body or fetus brought into the Commonwealth shall be the authority for final disposition of the body or fetus in the Commonwealth and may be accepted in lieu of a certificate of death. There shall be noted on the face of the record made for return to the local registrar that the body was shipped to Kentucky for interment and the actual place of death.
  7. Nothing in this section shall be construed to delay, beyond a reasonable time, the interment or other disposition of a body unless the services of the coroner or the health officer are required or the Department for Public Health deems it necessary for the protection of the public health. If compliance with this section would result in unreasonable delay in the disposition of the body the funeral director, or person acting as such, shall file with the local registrar or deputy registrar prior to interment a provisional certificate of death which shall contain the name, date, and place of death of the deceased, the name of the medical certifier, and an agreement to furnish within ten (10) days a complete and satisfactory certificate of death.
  8. No sexton or other person in charge of any place in which interment or other disposition of dead bodies is made shall inter or allow interment or other disposition of a dead body or fetus unless it is accompanied by a copy of the provisional certificate of death. The sexton, or if there is no sexton, the funeral director, or person acting as such, shall enter on the provisional certificate over his signature, the date, place, and manner of final disposition and file the certificate within five (5) days with the local registrar.
  9. Authorization for disinterment, transportation, and reinterment or other disposition shall be required prior to disinterment of any human remains. The authorization shall be issued by the state registrar upon proper application. The provisions of this subsection shall apply to all manners of disposition except cremation and without regard for the time and place of death. The provisions of KRS 381.765 shall not apply to remains removed for scientific study and the advancement of knowledge.
  10. After a death certificate has been on file for five (5) years, it may not be changed in any manner except upon order of a court. Prior to that time, requests for corrections, amendments, or additions shall be accompanied by prima facie evidence which supports the requested change.

History. Enact. Acts 1990, ch. 369, § 14, effective July 13, 1990; 1998, ch. 426, § 387, effective July 15, 1998; 2002, ch. 15, § 1, effective July 15, 2002; 2002, ch. 100, § 1, effective July 15, 2002; 2005 ch. 99, § 436, effective June 20, 2005; 2005, ch. 131, § 1, effective June 20, 2005; 2007, ch. 107, § 1, effective June 26, 2007; 2008, ch. 5, § 2, effective July 15, 2008; 2013, ch. 4, § 1, effective June 25, 2013; 2016 ch. 87, § 5, effective July 15, 2016; 2020 ch. 36, § 29, effective July 15, 2020.

NOTES TO DECISIONS

1.Stautory Intent.

While the statute placed the responsibility for filing a provisional report of death on a licensed funeral director, it did not forbid him from delegating the task of completing the documents to his agents or employees, especially a licensed apprentice; thus, it was not the statute’s intent to require that said report be signed by a funeral director or non-funeral director who had some close relationship with the deceased. New v. Commonwealth, 156 S.W.3d 769, 2005 Ky. App. LEXIS 22 (Ky. Ct. App. 2005).

2.Contents of Certificate.

Where portion of death certificate relating to death due to external causes was not filled in, the reasonable inference was that doctor did not consider death was due to accident. Troutman v. Mutual Life Ins. Co., 125 F.2d 769, 1942 U.S. App. LEXIS 4468 (6th Cir. Ky. 1942 ) (decided under prior law).

3.Collection of Specimens.

Neither the language of the statutory definition of “chiropractic” nor the statutory authority to sign a death certificate and to state the cause of death carries with it the authorization for the collection and submission of human specimens to a medical laboratory. Kentucky Asso. of Chiropractors, Inc. v. Jefferson County Medical Soc., 549 S.W.2d 817, 1977 Ky. LEXIS 414 ( Ky. 1977 ) (decided under prior law).

4.Cause of Death.

In action on life policy involving question whether deceased was drowned accidentally or intentionally, cause of death was drowning; but whether it was occasioned by accident, suicide or homicide was not fact to which coroner could certify unqualifiedly, but only as to probability. Equitable Life Assurance Soc. v. Stinnett, 13 F.2d 820, 1926 U.S. App. LEXIS 3683 (6th Cir. Ky. 1926 ) (decided under prior law).

This section, in connection with KRS 213.190 (now repealed), distinguishes between “cause of death,” which is to be certified without qualification, and physician’s or coroner’s opinion whether this cause was occasioned by intentional or accidental act of decedent or by homicide, and differentiation between facts and opinion is emphasized by word “probably” in connection with violence which caused death. Equitable Life Assurance Soc. v. Stinnett, 13 F.2d 820, 1926 U.S. App. LEXIS 3683 (6th Cir. Ky. 1926 ) (decided under prior law).

5.Prima Facie Evidence.

Even if certified copy of record is received as prima facie evidence, it would not be prima facie evidence that decedent killed himself but merely that he “probably” did so. Equitable Life Assurance Soc. v. Stinnett, 13 F.2d 820, 1926 U.S. App. LEXIS 3683 (6th Cir. Ky. 1926 ) (decided under prior law).

Research References and Practice Aids

Cross-References.

Chiropractor may sign death certificate, KRS 312.190 .

Dentist may sign death certificate, KRS 313.250 .

Embalmers and funeral directors, KRS Chapter 316.

213.078. Questions concerning diabetes on certificate of death form. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 2002, ch. 100, § 2, effective July 15, 2002; 2005, ch. 99, § 437, effective June 20, 2005) was repealed by Acts 2008, ch. 5, § 3, effective July 15, 2008.

213.080. Certificate of death — Medical certificate — Requirements. [Repealed.]

Compiler’s Notes.

This section (2062a-7, 2062a-14: amend. Acts 1958, ch. 97, § 4, effective June 19, 1954; 1974, ch. 74, Art. VI, § 107(1), (4) and (11); 1984, ch. 255, § 1, effective July 13, 1984; 1988, ch. 133, § 1, effective July 15, 1988) was repealed by Acts 1990, ch. 369, § 38, effective July 13, 1990.

213.081. Permit to cremate or transport body.

  1. No person shall cremate or cause to be transported for the purpose of cremation the body of any person whose death occurs in the Commonwealth, without first obtaining from the coroner of the county in which the death occurred, a permit stating the cause of death and authorizing the cremation or transportation for cremation of the body. The permit shall be filed immediately following cremation with the local registrar of vital statistics.
  2. The provisions of this section shall not apply to the cremation of fetal death remains in the absence of any indication of a criminal act.

History. Enact. Acts 1990, ch. 369, § 15, effective July 13, 1990.

NOTES TO DECISIONS

1.Permit.

Kentucky Board of Embalmers and Funeral Directors was not enjoined from enforcing statutes relating to embalmers and funeral directors against a crematory because it had not been granted a permit to transport dead human bodies; therefore, the Board was the property authority to regulate the crematory’s violation of the licensing statute. Reynolds Enters. v. Ky. Bd. of Embalmers & Funeral Dirs., 382 S.W.3d 47, 2012 Ky. App. LEXIS 329 (Ky. Ct. App. 2012).

2.Coroner's Consent.

Because the statute is aimed at preventing concealment of a crime, it is appropriate that cremation of a body or transportation of a body for cremation without the coroner's consent constitutes a class D felony. Harrod v. Caney, 547 S.W.3d 536, 2018 Ky. App. LEXIS 94 (Ky. Ct. App. 2018).

3.Coroner's Authority.

Statute does not authorize a coroner to interfere in a dispute between family members as to the disposition of a relative's remains and whether cremation should take place, and there is also no statute that authorizes a coroner to embalm a body. Harrod v. Caney, 547 S.W.3d 536, 2018 Ky. App. LEXIS 94 (Ky. Ct. App. 2018).

Statute only provided the coroner with the authority to either issue or not issue a permit for cremation, and regardless of whether he believed the decedent's wishes as memorialized in a note should have been followed instead of the preneed cremation authorization or the surviving spouse's wishes, there was no authority to support the coroner's decision to seize the decedent's body and force his relatives to reach an agreement about its disposition. Harrod v. Caney, 547 S.W.3d 536, 2018 Ky. App. LEXIS 94 (Ky. Ct. App. 2018).

213.086. “Presumptive” death certificate.

If a death is presumed to have occurred within the Commonwealth but the body cannot be located or recovered, a death certificate may be prepared by the state registrar upon receipt of an order of a court of competent jurisdiction, which shall include the finding of facts required to complete the death certificate. Such a death certificate shall be marked “presumptive” and shall show on the certificate the date of registration and shall identify the court and the date of decree.

History. Enact. Acts 1990, ch. 369, § 16, effective July 13, 1990.

213.090. Notice of death without physician in attendance — Duties of coroner. [Repealed.]

Compiler’s Notes.

This section (2062a-8: amend. Acts 1960, ch. 51, § 2; 1974, ch. 74, Art. VI, § 107(1), (4)) was repealed by Acts 1990, ch. 369, § 38, effective July 13, 1990.

213.091. “Delayed” death certificate.

  1. If a death occurring in the Commonwealth has not been registered within one (1) year from the date of death, a certificate of death may be filed in accordance with regulation of the cabinet pursuant to KRS Chapter 13A. The certificate shall be registered subject to the evidentiary requirements the cabinet shall by regulation prescribe to substantiate the alleged facts of death.
  2. Any certificate of death registered one (1) year or more after the date of death shall be marked “delayed” and shall show on the face of the certificate the date of the delayed registration.

History. Enact. Acts 1990, ch. 369, § 17, effective July 13, 1990.

213.096. Combination birth-death or stillbirth certificate.

  1. Each fetal death of twenty (20) completed weeks’ gestation or more, calculated from the date last normal menstrual period began to the date of delivery or in which the fetus weighs three hundred fifty (350) grams or more, which occurs in the Commonwealth, shall be reported on a combination birth-death or stillbirth certificate in accordance with applicable provisions of KRS 213.046 and KRS 213.076 . If the fetal death occurs in a hospital, the person in charge of the institution or the person’s designated representative shall complete the stillbirth certificate, obtain the medical certification, and file the certificate with the state registrar.
  2. The name of the father shall be entered on the stillbirth certificate in accordance with the provisions of KRS 213.046 .
  3. All abortions shall be reported in the manner prescribed in KRS 213.101 and shall not be reported as stillbirths.

History. Enact. Acts 1990, ch. 369, § 18, effective July 13, 1990; 2020 ch. 36, § 30, effective July 15, 2020.

213.100. Obtaining and filing certificate of death. [Repealed.]

Compiler’s Notes.

This section (2062a-5, 2062a-9: amend. Acts 1984, ch. 255, § 2, effective July 13, 1984) was repealed by Acts 1990, ch. 369, § 38, effective July 13, 1990.

213.101. Abortion required to be reported to Vital Statistics Branch — Public report — Administrative regulations.

    1. Each abortion as defined in KRS 213.011 which occurs in the Commonwealth, regardless of the length of gestation, shall be reported to the Vital Statistics Branch by the person in charge of the institution within fifteen (15) days after the end of the month in which the abortion occurred. If the abortion was performed outside an institution, the attending physician shall prepare and file the report within fifteen (15) days after the end of the month in which the abortion occurred. (1) (a) Each abortion as defined in KRS 213.011 which occurs in the Commonwealth, regardless of the length of gestation, shall be reported to the Vital Statistics Branch by the person in charge of the institution within fifteen (15) days after the end of the month in which the abortion occurred. If the abortion was performed outside an institution, the attending physician shall prepare and file the report within fifteen (15) days after the end of the month in which the abortion occurred.
    2. The report shall include all the information the physician is required to certify in writing or determine under KRS 311.731 , 311.7704 , 311.7705 , 311.7706 , 311.7707 , 311.774 , 311.782 , and 311.783 , but shall not include information which will identify the physician, woman, or man involved.
    3. If a person other than the physician described in this subsection makes or maintains a record required by KRS 311.7704 , 311.7705 , 311.7706 , or 311.7707 on the physician’s behalf or at the physician’s direction, that person shall comply with the reporting requirement described in this subsection as if the person were the physician.
  1. Each prescription issued for RU-486, cytotec, pitocin, mifeprex, misoprostol, or any other drug or combination of drugs for which the primary indication is the induction of abortion as defined in KRS 213.011 shall be reported to the Vital Statistics Branch within fifteen (15) days after the end of the month in which the prescription was issued as required by KRS 311.774 , but the report shall not include information which will identify the woman involved or anyone who may be picking up the prescription on behalf of the woman.
  2. The name of the person completing the report and the reporting institution shall not be subject to disclosure under KRS 61.870 to 61.884 .
  3. By September 30 of each year, the Vital Statistics Branch shall issue a public report that provides statistics on all data collected, including the type of abortion procedure used, for the previous calendar year compiled from all of the reports covering that calendar year submitted to the cabinet in accordance with this section for each of the items listed in subsections (1) and (2) of this section. Each annual report shall also provide statistics for all previous calendar years in which this section was in effect, adjusted to reflect any additional information from late or corrected reports. The Vital Statistics Branch shall ensure that none of the information included in the report could reasonably lead to the identification of any pregnant woman upon whom an abortion was performed or attempted. Each annual report shall be made available on the cabinet’s Web site.
    1. Any person or institution who fails to submit a report by the end of thirty (30) days following the due date set in subsections (1) and (2) of this section shall be subject to a late fee of five hundred dollars ($500) for each additional thirty (30) day period or portion of a thirty (30) day period the report is overdue. (5) (a) Any person or institution who fails to submit a report by the end of thirty (30) days following the due date set in subsections (1) and (2) of this section shall be subject to a late fee of five hundred dollars ($500) for each additional thirty (30) day period or portion of a thirty (30) day period the report is overdue.
    2. Any person or institution who fails to submit a report, or who has submitted only an incomplete report, more than one (1) year following the due date set in subsections (1) and (2) of this section, may in a civil action brought by the Vital Statistics Branch be directed by a court of competent jurisdiction to submit a complete report within a time period stated by court order or be subject to contempt of court.
    3. Failure by any physician to comply with the requirements of this section, other than filing a late report, or to submit a complete report in accordance with a court order shall subject the physician to KRS 311.595 .
  4. Intentional falsification of any report required under this section is a Class A misdemeanor.
  5. The Vital Statistics Branch shall promulgate administrative regulations in accordance with KRS Chapter 13A to assist in compliance with this section.

History. Enact. Acts 1990, ch. 369, § 19, effective July 13, 1990; 2005, ch. 99, § 438, effective June 20, 2005; 2017 ch. 5, § 9, effective January 9, 2017; 2019 ch. 20, § 15, effective March 15, 2019; 2019 ch. 37, § 6, effective March 19, 2019; 2019 ch. 191, § 1, effective June 27, 2019; 2020 ch. 36, § 31, effective July 15, 2020.

Legislative Research Commission Notes.

(6/27/2019). This statute was amended by 2019 Ky. Acts chs. 20, 37, and 191. Where these Acts are not in conflict, they have been codified together. Where a conflict exists, Acts ch. 191, which was last enacted by the General Assembly, prevails under KRS 446.250 .

(3/19/2019). 2019 Ky. Acts ch. 37, sec. 8, provides that 2019 Ky. Acts ch. 37 may be cited as the “Human Rights of the Unborn Child and Anti-Discrimination Act.” This statute was amended in Section 6 of that Act.

213.105. Issuance of certificate in absence of body. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 73, § 2) was repealed by Acts 1990, ch. 369, § 38, effective July 13, 1990.

213.106. Use of induced termination of pregnancy reports.

The reports required under KRS 213.101 are statistical reports to be used only for medical and health purposes and shall not be incorporated into the permanent official records of the system of vital statistics.

History. Enact. Acts 1990, ch. 369, § 20, effective July 13, 1990.

213.110. Burial, removal and transit permits — Regulations. [Repealed.]

Compiler’s Notes.

This section (2062a-5, 2062a-9, 2062a-19: amend. Acts 1958, ch. 97, § 5; 1974, ch. 74, Art. VI, § 75; 1988, ch. 9, § 1, effective July 15, 1988) was repealed by Acts 1990, ch. 369, § 38, effective July 13, 1990.

213.111. Loan of unclaimed bodies to hospital or institution of higher learning.

  1. Notwithstanding the provisions of KRS 311.300 to 311.350 , any hospital or institution of higher learning may make application to any medical school incorporated within the Commonwealth for the loan of unclaimed whole dead bodies or parts thereof for educational or scientific purposes if the approval of the Cabinet for Health and Family Services has first been obtained. Approval shall be granted or denied by the Cabinet for Health and Family Services on the basis of proposed use, need, qualification of personnel, and adequacy of equipment and facilities.
  2. A special transit permit shall be obtained for the transportation of the dead bodies or parts thereof from the state registrar. Transportation and the ultimate burial of all the bodies or parts thereof shall be in accordance with the provisions of this chapter and KRS 311.340 .
  3. All approved recipients shall keep a record of all bodies received by them and comply with all other regulations of the Cabinet for Health and Family Services.

History. Enact. Acts 1990, ch. 369, § 21, effective July 13, 1990; 1998, ch. 426, § 388, effective July 15, 1998; 2005, ch. 99, § 439, effective June 20, 2005.

Research References and Practice Aids

Cross-References.

Medical college may procure unclaimed dead bodies, KRS 311.300 to 311.350 .

213.116. Collection of data relating to marriages, divorces, and annulments.

  1. The cabinet shall perform the collection, indexing, tabulation, and registration of data relating to marriages, divorces, and annulments. The secretary shall adopt administrative regulations to carry out the provisions of this section.
  2. Each county clerk shall on or before the tenth day of each month furnish to the state registrar, from the marriage licenses issued and the marriage certificates returned to the clerk during the previous month, the information required by the Cabinet for Health and Family Services upon forms prescribed and furnished by the cabinet. The county clerk shall collect from the applicants for a marriage license at the time the license is issued one dollar ($1), which shall constitute the clerk’s fee for forwarding the required information to the state registrar.
  3. A marriage record not filed within the time prescribed by this section may be registered in accordance with administrative regulations adopted by the cabinet.
  4. In all actions for dissolution of marriage, the petitioner, or the petitioner’s attorney or legal representative, shall file, concurrently with the petition, the information requested on forms prescribed and furnished by the Cabinet for Health and Family Services. By January 1, 2013, these forms shall be available on the cabinet’s Web site as a downloadable document that can be completed electronically and printed. The provisions of the information shall be prerequisite to the issuance of a final decree in the matter by the court.
  5. Each Circuit Court clerk shall, within forty-five (45) days after entry of a final judgment of divorce, absolute or limited, or annulment of marriage, complete the form prescribed and furnished by the Cabinet for Health and Family Services and forward it to the state registrar.

History. Enact. Acts 1990, ch. 369, § 22, effective July 13, 1990; 1998, ch. 426, § 389, effective July 15, 1998; 2005, ch. 99, § 440, effective June 20, 2005; 2012, ch. 127, § 1, effective July 12, 2012.

213.120. Form of burial permit. [Repealed.]

Compiler’s Notes.

This section (2062a-10: amend. Acts 1958, ch. 97, § 6, effective June 19, 1958; 1974, ch. 74, Art. VI, § 107(1), (11)) was repealed by Acts 1990, ch. 369, § 38, effective July 13, 1990.

213.121. Amendment of certificate or report.

  1. A certificate or report registered under this chapter may be amended only in accordance with this section and administrative regulations adopted by the cabinet to protect the integrity and accuracy of vital records.
  2. A certificate or report that is amended under this section shall be marked “amended,” except as otherwise provided in this section. The date of amendment and a summary description of the evidence submitted in support of the amendment shall be endorsed on or made a part of the record. The cabinet shall prescribe by administrative regulation the conditions under which additions or minor corrections may be made to certificates or records within one (1) year after the date of the event without the certificate or record being marked “amended.”
  3. Upon written request of both parents and receipts of a sworn acknowledgment of paternity signed by both parents of a child born to an unmarried woman, the state registrar shall amend the certificate of birth to show the paternity, if paternity is not already shown on the certificate of birth. The certificate shall not be marked “amended.”
  4. Upon receipt of a certified copy of an order of a court changing the name of a person born in the Commonwealth and upon request of the person or the person’s parents, guardian, or legal representative, the state registrar shall amend the certificate of birth to show the new name.
  5. Upon receipt of a sworn statement by a licensed physician indicating that the gender of an individual born in the Commonwealth has been changed by surgical procedure and a certified copy of an order of a court of competent jurisdiction changing that individual’s name, the certificate of birth of the individual shall be amended as prescribed by regulation to reflect the change.

History. Enact. Acts 1990, ch. 369, § 23, effective July 13, 1990.

213.122. Use of unclaimed dead bodies for educational or scientific purposes — Transportation — Records. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 158, § 1; 1974, ch. 74, Art. VI, § 107(1), (3), (5) and (10)) was repealed by Acts 1990, ch. 369, § 38, effective July 13, 1990.

213.125. Cremation — Coroner’s certificate — Permit. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 51, § 1, effective June 16, 1960) was repealed by Acts 1990, ch. 369, § 38, effective July 13, 1990.

213.126. Preservation of vital records.

To preserve vital records, the cabinet may prepare typewritten, photographic, electronic, or other reproductions of certificates or reports of the vital statistics program. The reproductions, when certified by the state registrar, shall be accepted in the same manner as the original records.

History. Enact. Acts 1990, ch. 369, § 24, effective July 13, 1990.

213.130. Duties of persons in charge of burial grounds. [Repealed.]

Compiler’s Notes.

This section (2062a-11: amend. Acts 1960, ch. 51, § 3, effective June 16, 1960) was repealed by Acts 1990, ch. 369, § 38, effective July 13, 1990.

213.131. Inspection of records — Public records.

  1. To protect the integrity of vital records, to insure their proper use, and to insure the efficient and proper administration of the system of vital statistics, it shall be unlawful for any person to permit inspection of, or to disclose information contained in vital records or to copy or issue a copy of all or part of any record except as authorized by this chapter, by regulation, or by order of a court of competent jurisdiction. Administrative regulations adopted by the cabinet shall provide for adequate standards of security and confidentiality of vital records and shall conform to subsection (4) of this section.
  2. The state registrar shall prepare annually an alphabetical list of all persons registered as born in the preceding year. The list shall show the person’s name, the mother’s maiden name, and the date and county of birth. This list shall be an open record subject to inspection by the public upon request.
  3. The state registrar shall prepare annually an alphabetical list of all persons registered who die in the Commonwealth. This list shall show the name of the deceased and the date and county of death and shall be an open record subject to inspection by the public upon request.
  4. The Cabinet for Health and Family Services may authorize by regulation the disclosure of information contained in vital records for research and official administrative purposes, if:
    1. All information identifying persons named on the certificate is withheld or removed;
    2. The information is requested by a federal, state, county, or municipal agency of government which needs the data or information in the conduct of official duties; or
    3. The cabinet has prepared, in writing, a statement of the conditions under which the data or records will be used and received an agreement signed by a responsible agent of the research organization agreeing to meet with and conform to the conditions.
  5. If one hundred (100) years have elapsed after the date of birth, or fifty (50) years have elapsed after the date of death, the records of these events in the custody of the state registrar shall become public records and information shall be made available in accordance with regulations which shall provide for continued safekeeping of the records.

History. Enact. Acts 1990, ch. 369, § 25, effective July 13, 1990; 1998, ch. 426, § 390, effective July 15, 1998; 2005, ch. 99, § 441, effective June 20, 2005.

Opinions of Attorney General.

Both microfiche copies and index books of the Kentucky Register of Births & Deaths are public records under KRS 61.870(2) and are available for public inspection under KRS 61.872(1) and subsections (2) and (3) of this section; and since the Register has been available for public inspection for many years, the new legislation somewhat limiting public access to vital records does not in any way make confidential records which have been open to the public for such a lengthy period of time. OAG 91-25 .

Private or public institutions which own copies of the Register of Births and Deaths are under no legal obligation to return this property to the Cabinet for Human Resources (now Health and Family Services) but if the institution is in possession of copies of the Register under a loan agreement with the Cabinet, the Cabinet as the owner might request that they be promptly returned depending upon the specifications of the loan agreement. OAG 91-25 .

The Department for Libraries and Archives does not have the power to retrieve the various copies of the Register of Births and Deaths from public libraries for no statute gives such broad supervisory authority to the Department for Libraries and Archives over local public libraries. OAG 91-25 .

The Department for Libraries and Archives does not have to comply with a request from the Cabinet for Human Resources (now Health and Family Services) that copies of the index books stored at the archives be removed from public inspection. The statutes provide little direction as to who becomes the legal custodian of records which are transferred to the Kentucky Department for Libraries and Archives, for under KRS 61.870 either the state archives or the official custodian of the agency might be legally deemed to be the custodian of the records, and since the copies of the Register are open to public inspection the Department for Libraries and Archives need not comply with the request of the Cabinet to restrict access to the records. OAG 91-25 .

The microfilm copies of the Register of Births and Deaths now in the possession of the university libraries are private publications which they obtained from the Latter Day Saints, and the Cabinet for Human Resources (now Health and Family Services) has no legal authority to replevin these materials. OAG 91-25 .

Although subdivision (4)(a) of this section requires the Cabinet to withold or remove all information identifying persons named on birth certificates if it wishes to release vital records for research and official administration purposes, it does not require redaction of the annual index nor do the administrative regulations enacted pursuant to subdivision (4) of this section; thus cumulative index of births in Kentucky must be released in the designated electronic format, if they exist in this format, subject to the statutory fee provisions. OAG 94-ORD-80.

213.136. Certified copy of a vital record.

  1. The state registrar shall upon receipt of an application issue a certified copy of a vital record in the registrar’s custody or a part thereof to any applicant. Each copy issued shall show the date of registration and copies issued from records marked “delayed” or “amended” shall be similarly marked and show the effective date. The documentary evidence used to establish a delayed certificate shall be shown on all copies issued. All forms and procedures used in the issuance of certified copies of vital records in the Commonwealth shall be provided or approved by the state registrar.
  2. A certified copy of a vital record or any part thereof, issued in accordance with subsection (1) of this section, shall be considered for all purposes the same as the original and shall be prima facie evidence of the facts stated therein. The evidentiary value of a certificate or record which has been amended shall be determined by the judicial or administrative body, or official before which the certificate is offered as evidence.
  3. The federal agency responsible for national vital statistics may be furnished copies or data from the system of vital statistics for national statistics, if the federal agency shares in the cost of collecting, processing, and transmitting the data, and if the data is not used for other than statistical purposes by the federal agency unless so authorized by the cabinet.
  4. Federal, state, local, and other public or private agencies may, upon request, be furnished copies or data from the system of vital statistics for statistical or administrative purposes upon terms or conditions as may be prescribed by regulation if the copies or data are not used for purposes other than those for which they were requested without prior permission of the cabinet. No information other than statistical data shall be provided for commercial purposes.
  5. The cabinet may, by agreement, transmit copies of records and other reports required by this chapter to offices of vital statistics outside the Commonwealth when the records or other reports relate to residents of those jurisdictions or persons born in those jurisdictions. The agreement shall require that the copies be used for statistical and administrative purposes only and the agreement shall further provide for the retention and disposition of the copies. Copies received by the Vital Statistics Branch from offices of vital statistics in other states shall be handled in the same manner as prescribed in this section.
  6. No person shall prepare or issue any certificate which purports to be an original, certified copy, or copy of a vital record except as authorized in this section or regulation adopted hereunder.

History. Enact. Acts 1990, ch. 369, § 26, effective July 13, 1990; 2005, ch. 99, § 442, effective June 20, 2005.

213.140. Physicians, midwives and undertakers to register. [Repealed.]

Compiler’s Notes.

This section (2062a-16: amend. Acts 1974, ch. 74, Art. VI, § 107(1), (4)) was repealed by Acts 1990, ch. 369, § 38, effective July 13, 1990.

213.141. Fee for certified copies of certificates or records or for a search of records.

  1. Except as provided in subsection (2) of this section, the cabinet shall prescribe by regulation a fee not to exceed five dollars ($5), to be paid for certified copies of certificates or records, or for a search of the files or records when no copy is made, or for copies or information provided for research, statistical, or administrative purposes.
  2. The cabinet shall prescribe by administrative regulation pursuant to KRS Chapter 13A a fee not to exceed ten dollars ($10) to be paid for a certified copy of a record of a birth:
    1. Three dollars ($3) of which shall be used by the Cabinet for Health and Family Services for the sole purpose of contracting for the operation of private, not-for-profit, self-help, education, and support groups for parents who want to prevent or cease physical, sexual, or mental abuse of children; and
    2. One dollar ($1) of which shall be used by the Division of Maternal and Child Health to pay for therapeutic food, formulas, supplements, amino acid-based elemental formula, or low-protein modified foods for all inborn errors of metabolism and genetic conditions if:
      1. The therapeutic food, formulas, supplements, amino acid-based elemental formula, or low-protein modified food products are medically indicated for the therapeutic treatment of inborn errors of metabolism or genetic conditions and are administered under the direction of a physician; and
      2. The affected person’s therapeutic food, formulas, supplements, amino acid-based elemental formula, or low-protein foods are not covered under any public or private health benefit plan.
  3. Fees collected under this section by the state registrar shall be used to help defray the cost of administering the system of vital statistics.
    1. No fee or compensation shall be allowed or paid for furnishing certificates of birth or death required in support of any claim against the government for compensation, insurance, back pay, or other allowances or benefits for any person who has at any time served as a member of the Army, Navy, Marine Corps, or Air Force of the United States. (4) (a) No fee or compensation shall be allowed or paid for furnishing certificates of birth or death required in support of any claim against the government for compensation, insurance, back pay, or other allowances or benefits for any person who has at any time served as a member of the Army, Navy, Marine Corps, or Air Force of the United States.
    2. No fee or compensation shall be allowed or paid for furnishing a certificate of birth to a member of the Kentucky National Guard who has received deployment orders during the sixty (60) days prior to the furnishing of the certificate.
    3. No fee or compensation shall be allowed or paid for furnishing a certificate of birth to a child who is in the custody of or committed to the cabinet, including a child who has extended commitment to the cabinet in accordance with KRS 610.110(6).
    4. No fee or compensation shall be allowed or paid for furnishing a certificate of birth to a homeless individual as defined by KRS 198A.700 , including a minor who is a homeless individual, provided the homeless individual is under twenty-five (25) years of age and has been verified as a homeless child or youth, as defined in 42 U.S.C. sec. 11434 a(2), by at least one (1) of the following:
      1. A director or designee of a governmental or nonprofit agency that receives public or private funding to provide services to homeless people;
      2. A local educational agency liaison for homeless children and youths designated pursuant to 42 U.S.C. sec. 11432(g)(1) (J)(ii), or a school social worker or school counselor;
      3. The director or director’s designee of a federal TRIO Program or a Gaining Early Awareness and Readiness for Undergraduate Program; or
      4. A financial aid administrator for an institution of higher education.
  4. The cabinet shall notify the State Board of Elections monthly of the name, address, birthdate, sex, race, and Social Security number of residents of the Commonwealth who died during the previous month. This data shall include only those persons who were over the age of eighteen (18) years at the date of death. No fee or compensation shall be allowed for furnishing these lists.

History. Enact. Acts 1990, ch. 369, § 27, effective July 13, 1990; 1996, ch. 312, § 1, effective July 15, 1996; 1998, ch. 426, § 391, effective July 15, 1998; 2000, ch. 457, § 2, effective July 14, 2000; 2004, ch. 149, § 1, effective July 13, 2004; 2005, ch. 99, § 56, effective June 20, 2005; 2008, ch. 119, § 2, effective July 15, 2008; 2012, ch. 158, § 47, effective July 12, 2012; 2016 ch. 10, § 2, effective April 1, 2016; 2018 ch. 136, § 11, § 11, effective July 1, 2019; 2018 ch. 159, § 12, effective July 14, 2018; 2019 ch. 144, § 2, effective June 27, 2019.

Legislative Research Commission Notes.

(7/14/2018). This statute was amended by 2018 Ky. Acts chs. 136 and 159, which do not appear to be in conflict and have been codified together. The changes to the language of this statute were identical in each Act, but the Acts had different effective dates of July 14, 2018, and July 1, 2019. The later-passed Act, Chapter 159, had the earlier effective date, and under KRS 446.250 will prevail and the amended language of this statute is effective on July 14, 2018.

(4/1/2016). 2016 Ky. Acts ch. 10, sec. 5 provided that Act may be cited as Noah's Law. This statute was amended in Section 2 of that Act.

(7/15/2008). The structure of paragraphs in subsection (2) of this section has been altered by the Reviser of Statutes from the structure set forth in 2008 Ky. Acts ch. 119, sec. 2, under the authority of KRS 7.136 .

213.143. Commemorative copy of birth or marriage certificate — Fee. [Repealed]

HISTORY: Enact. Acts 2003, ch. 69, § 1, effective June 24, 2003; repealed by 2018 ch. 112, § 19, effective July 14, 2018.

213.146. Maintenance of records relating to vital statistics by various persons.

  1. Every person in charge of an institution shall keep a record of personal data concerning each person admitted or confined to the institution. This record shall include the information required for certificates of birth and death and the reports of fetal death and induced termination of pregnancy required by this chapter. The record shall be made at the time of admission from information provided by the person being admitted or confined but, if it cannot be so obtained, the information shall be obtained from relatives or other persons acquainted with the facts. The name and address of the person providing the information shall be a part of the record.
  2. If a dead body or dead fetus is released or disposed of by an institution, the person in charge of the institution shall keep a record showing the name of the decedent, date of death, name and address of the person to whom the body or fetus is released, and the date of removal from the institution. If final disposition is made by the institution, the date, place, and manner of disposition shall also be recorded on the certificate of death or fetal death and filed in accordance with KRS 213.076 and 213.096 .
  3. A funeral director, embalmer, sexton, or other person who removes from the place of death, transports, or makes final disposition of a dead body or fetus shall, in addition to filing any certificate or other report required by this chapter or regulation promulgated hereunder, keep a record which shall identify the body and the information pertaining to the persons receipt, removal, delivery, burial, or cremation of the body as may be required by regulations adopted by the cabinet.
  4. Records maintained under this section shall be retained for a period of not less than five (5) years and shall be made available for inspection by the cabinet or its designee upon request.

History. Enact. Acts 1990, ch. 369, § 28, effective July 13, 1990.

213.150. Fees of local registrar, physician, midwife, sexton and undertaker. [Repealed.]

Compiler’s Notes.

This section (2062a-4, 2062a-20: amend. Acts 1952, ch. 126, § ; 1954, ch. 135, § 4; 1966, ch. 109; 1974, ch. 74, Art. VI, § 107(1), (4)) was repealed by Acts 1990, ch. 369, § 38, effective July 13, 1990.

213.151. Furnishing of information to complete a vital record.

Any person having knowledge of the facts necessary to complete a vital record shall furnish the information that person possesses regarding any birth, death, fetal death, induced termination of pregnancy, marriage, or dissolution of marriage or annulment upon request of the cabinet.

History. Enact. Acts 1990, ch. 369, § 29, effective July 13, 1990.

213.156. Application of the provisions of this chapter.

The provisions of this chapter shall apply to all certificates of birth, death, marriage, divorce, stillbirth, and abortion previously received by the Vital Statistics Branch and in the custody of the state registrar or any health department.

History. Enact. Acts 1990, ch. 369, § 30, effective July 13, 1990; 2005, ch. 99, § 443, effective June 20, 2005; 2005, ch. 99, § 443, effective June 20, 2005; 2020 ch. 36, § 32, effective July 15, 2020.

213.160. Institutions to keep records of births, deaths and sickness. [Repealed.]

Compiler’s Notes.

This section (2062a-17: amend. Acts 1958, ch. 97, § 7; 1974, ch. 74, Art. VI, § 107(1), (4) and (11); 1984, ch. 111, § 180, effective July 13, 1984) was repealed by Acts 1990, ch. 369, § 38, effective July 13, 1990.

213.161. Sudden Infant Death Syndrome Program — Collection of a tissue sample during autopsy, conditions.

  1. In order to obtain information which may be useful to research organizations studying the causes and incidence of the sudden infant death syndrome, a program is hereby established in the Cabinet for Health and Family Services. The purpose of this program shall be to obtain factual information concerning the characteristics, incidence, and distribution of the sudden infant death syndrome throughout the Commonwealth and to provide a means of public education concerning any research findings which may lead to the possible means of prevention, early identification, and treatment of children susceptible to the sudden infant death syndrome.
  2. In instances where an ostensibly healthy child dies suddenly and unexpectedly with no known or apparent cause as determined by a physician or a coroner, an autopsy with the written approval of the parents or legal guardian of the child shall be performed within forty-eight (48) hours and the results reported to the cabinet and to the parents or legal guardian of the child.
  3. At the request of the parent or legal guardian of a child who has died under circumstances described in subsection (2) of this section or in the case of the death of any child, a tissue sample may be collected during the autopsy of the child’s body and shared for research purposes, assuming the tissue harvest will not interfere with the determination of the cause and manner of death.
  4. In order to implement the provisions of this section, the secretary of the Cabinet for Health and Family Services shall:
    1. Promulgate administrative regulations as may be necessary in order to obtain in proper form all information relating to the occurrence of sudden infant deaths which is relevant and appropriate for the establishment of a reliable statistical index of the incidence, distribution, and characteristics of cases of the sudden infant death syndrome;
    2. Collect such factual information from physicians, coroners, medical examiners, hospitals, and public health officials who have examined any child known or believed to have the sudden infant death syndrome;
    3. Make such factual information available to physicians, coroners, medical examiners, hospitals, public health officials, and educational and institutional organizations conducting research as to the causes and incidence of the sudden infant death syndrome;
    4. Cause appropriate counseling services to be established and maintained for families affected by the occurrence of the sudden infant death syndrome; and
    5. Conduct educational programs to inform the general public of any research findings of educational and institutional organizations which may lead to the possible means of prevention, early identification, and treatment of the sudden infant death syndrome.

History. Enact. Acts 1990, ch. 369, § 32, effective July 13, 1990; 1998, ch. 426, § 392, effective July 15, 1998; 2005, ch. 99, § 444, effective June 20, 2005; 2020 ch. 126, § 1, effective July 15, 2020.

213.166. Short title.

KRS 213.011 to 213.161 may be cited as the Vital Statistics Act.

History. Enact. Acts 1990, ch. 369, § 33, effective July 13, 1990.

213.170. Local registrars to distribute forms — Records and reports. [Repealed.]

Compiler’s Notes.

This section (2062a-19: amend. Acts 1954, ch. 135, § 5; 1974, ch. 74, Art. VI, § 107(1), (4); 1988, ch. 133, § 2) was repealed by Acts 1990, ch. 369, § 38.

213.180. Forms — Instructions — Reports — Records — Duties and powers of secretary for human resources as to. [Repealed.]

Compiler’s Notes.

This section (2062a-2, 2062a-18: amend. Acts 1954, ch. 135, § 6; 1974, ch. 74, Art. VI, § 107(1), (4), (6), (10); 1978, ch. 384, § 346) was repealed by Acts 1990, ch. 369, § 38.

213.190. Certified copies of records — Fees — Use of portion of birth certificate fee for preventing child abuse — Death data to be furnished to county clerks. [Repealed.]

Compiler’s Notes.

This section (2062a-21: amend. Acts 1954, ch. 135, § 7; 1958, ch. 97, § 9; 1964, ch. 150: 1978, ch. 324, § 1; 1984, ch. 133, § 1; 1984, ch. 333, § 4; 1984, ch. 341, § 49) was repealed by Acts 1990, ch. 369, § 38.

213.195. Delayed birth certificates for persons born prior to 1911. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 135, § 8, effective July 1, 1954; 1974, ch. 74, Art. VI, § 107(1), (4), (23)) was repealed by Acts 1990, ch. 369, § 38.

213.200. Privileged communications. [Repealed.]

Compiler’s Notes.

This section (2062a-24) was repealed by Acts 1990, ch. 369, § 38.

213.210. Enforcement. [Repealed.]

Compiler’s Notes.

This section (2062a-23: amend. Acts 1974, ch. 74, Art. VI, § 107(1), (4), (23)) was repealed by Acts 1990, ch. 369, § 38.

213.320. Domestic relations statistics — Regulations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 34, § 1, effective June 19, 1958; 1974, ch. 74, Art. VI, § 76) was repealed by Acts 1990, ch. 369, § 38.

213.330. Report of marriage statistics — Clerk’s fee. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 34, § 2, effective June 19, 1958; 1962, ch. 209, § 1; 1974, ch. 74, Art. VI, § 107(1), (4), (5), (11); 1978, ch. 384, § 347) was repealed by Acts 1990, ch. 369, § 38.

213.340. Report of information and final judgments in divorce and annulment cases. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 34, § 3, effective June 19, 1958; 1960, ch. 236; 1962, ch. 209, § 2; 1974, ch. 74, Art. VI, § 107(1), (4), (5); 1976, (Ex. Sess.), ch. 14, § 204; 1978, ch. 384, § 64) was repealed by Acts 1990, ch. 369, § 38.

213.400. Definition for KRS 213.410. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 223, § 1) was repealed by Acts 1990, ch. 369, § 38, effective July 13, 1990.

213.410. Sudden infant death syndrome research program — Reports — Data collection. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 223, § 2) was repealed by Acts 1990, ch. 369, § 38.

213.420. Burial of homicide victims — Application to Circuit Court if burial refused.

  1. In the event that a homicide has been committed and the person charged with the homicide refuses to permit the burial of the body of the deceased person who was the victim of his or her alleged homicide, any member of the family of the deceased, either by consanguinity or affinity, may apply to the Circuit Court in the county in which the body of the deceased is located for an order to release the body of the deceased to the applicant for burial, cremation, or other lawful means of disposition.
  2. The Circuit Court, after a hearing in the matter at which the person alleged to have committed the homicide has been afforded the opportunity to appear at the hearing either in person or by counsel or both, shall, if good cause is shown for the release of the body to the applicant, issue an order granting the release of the body to the applicant for burial, cremation, or other lawful means of disposition.

History. Enact. Acts 2006, ch. 75, § 1, effective July 12, 2006.

Penalties

213.990. Penalties. [Repealed.]

Compiler’s Notes.

This section (2055a, 2062a-4, 2062a-22: amend. Acts 1960, ch. 51, § 4, effective June 16, 1960; 1974, ch. 74, Art. VI, § 107(1), (4); 1974, ch. 255, § 17(7); 1984, ch. 255, § 3, effective July 13, 1984) was repealed by Acts 1990, ch. 369, § 38, effective July 13, 1990.

213.991. Penalties.

  1. Any person who shall cremate or cause to be cremated or transport or cause to be transported for the purpose of cremation, the body of any person whose death occurs in the Commonwealth, without first obtaining from the coroner of the county in which death occurred, authorization for the transportation and cremation shall be guilty of a Class D felony.
  2. Any person shall be guilty of a Class A misdemeanor who:
    1. Willfully and knowingly makes any false statement in a certificate, record, or report required by this chapter or in an application for an amendment thereof or in an application for a certified copy of a vital record or who willfully and knowingly supplies false information intending that such information be used in the preparation of any report, record or certificate or amendment thereof;
    2. Without lawful authority and with the intent to deceive, makes counterfeits, alters, amends or mutilates any certificate, record or report required by this chapter or a certified copy of such certificate, record or report;
    3. Willfully and knowingly obtains, possesses, uses, sells, furnishes or attempts to obtain, possess, use, sell or furnish to another, for any purpose of deception, any certificate, record or report required by this chapter or certified copy thereof so made, counterfeited, altered, amended, mutilated or which is false in whole or in part or which relates to the birth of another person whether living or deceased;
    4. As an employee of the Vital Statistics Branch or any office designated under KRS 213.036 , willfully and knowingly furnishes or processes a certificate of birth or certified copy of a certificate of birth with the knowledge or intention that it may be used for the purpose of deception; or
    5. Without lawful authority possesses any certificate, record, or report required by this chapter or a copy or certified copy of such certificate, record, or report knowing same to have been stolen or otherwise unlawfully obtained.
  3. Any person shall be guilty of a Class B misdemeanor who:
    1. Willfully and knowingly refuses to provide information required by this chapter or administrative regulations adopted hereunder;
    2. Willfully and knowingly transports or accepts for transportation, interment, or other disposition a dead body without an accompanying permit as provided in this chapter;
    3. Willfully and knowingly neglects or violates any of the provisions of this chapter or refuses to perform any of the duties imposed upon him or her by this chapter; or
    4. As an employee of the Vital Statistics Branch or any office designated under KRS 213.036 , willfully and knowingly violates the confidentiality provisions of KRS 213.131 .
  4. Repeated failure to comply with the requirements of this chapter shall be sufficient cause for the cabinet to file a report with the applicable medical, dental, chiropractic, or funeral director licensure board citing the omissions of lawful duty and requesting that appropriate disciplinary action be taken.

History. Enact. Acts 1990, ch. 369, § 31, effective July 13, 1990; 2005, ch. 99, § 445, effective June 20, 2005.

NOTES TO DECISIONS

1.Coroner's Consent.

Because the statute is aimed at preventing concealment of a crime, it is appropriate that cremation of a body or transportation of a body for cremation without the coroner's consent constitutes a class D felony. Harrod v. Caney, 547 S.W.3d 536, 2018 Ky. App. LEXIS 94 (Ky. Ct. App. 2018).

Research References and Practice Aids

Cross-References.

Sentence of imprisonment for felony, KRS 532.060 .

Sentence of imprisonment for misdemeanor, KRS 532.090 .

CHAPTER 214 Diseases

General Provisions

214.010. Physicians and heads of families to report diseases to local board of health.

Every physician and advanced practice registered nurse shall report all diseases designated by administrative regulation of the Cabinet for Health and Family Services as reportable which are under his or her special treatment to the local board of health of his or her county, and every head of a family shall report any of the designated diseases, when known by him or her to exist in his or her family, to the local board or to some member thereof in accordance with the administrative regulations of the Cabinet for Health and Family Services.

History. 2055: amend. Acts 1968, ch. 87, § 5; 1974, ch. 74, Art. VI, § 107(1), (3); 1998, ch. 426, § 393, effective July 15, 1998; 2005, ch. 99, § 446, effective June 20, 2005; 2010, ch. 85, § 72, effective July 15, 2010.

Research References and Practice Aids

Cross-References.

Cabinet for Health and Family Services, duties as to communicable diseases, KRS 211.180 .

County, city and district health boards, departments and officers, duties as to communicable diseases, KRS 212.020 , 212.170 to 212.190 , 212.230 , 212.260 , 212.370 .

Cows suffering from disease communicable to man may be disposed of, KRS 257.030 .

Schools may be closed by board of education during dangerous epidemics, KRS 158.160 .

Schools, person with infectious or communicable disease in family prohibited from attending, KRS 158.160 .

214.015. Reporting of authorized or required immunization.

Any health care provider that administers or supervises an immunization authorized under this chapter or otherwise required by the Department for Public Health shall report information about the immunization upon request by, or as required by, the department. The department shall direct the method of reporting and the entity that will receive the report in an administrative regulation promulgated by the department in accordance with KRS Chapter 13A. The department shall not require any reporting of information contrary to the requirements of the federal Health Insurance Portability and Accountability Act of 1996.

History. Enact. Acts 2004, ch. 93, § 1, effective July 13, 2004.

214.017. Caregiver of individual with diabetes may administer or assist with self-administration of diabetes medications if the caregiver is appropriately trained and has the written authorization of the individual’s health care practitioner.

  1. The caregiver of an individual who has diabetes may administer or assist with the self-administration of the medication listed under subsection (2) of this section if the caregiver:
    1. Has been trained to administer insulin and glucagon, recognize the signs and symptoms of hypoglycemia and hyperglycemia, and take appropriate steps to respond to these symptoms by:
      1. A physician who is licensed under the provisions of KRS Chapter 311;
      2. An advanced practice registered nurse, registered nurse, or licensed practical nurse who is licensed under the provisions of KRS Chapter 314; or
      3. Any other health care professional with diabetes treatment within his or her scope of practice; and
    2. Has the written authorization of the health care practitioner for an individual who has diabetes. The written authorization shall contain the following information:
      1. The individual’s name;
      2. The name and purpose of the medication;
      3. The prescribed dosage;
      4. The route of administration;
      5. The frequency with which the medication may be administered; and
      6. The circumstances under which the medication may be administered.
  2. A caregiver of an individual who has diabetes who meets the criteria under subsection (1) of this section may administer or assist with the self-administration of:
    1. Glucagon subcutaneously, to individuals with diabetes who are experiencing hypoglycemia or other conditions noted in the health care practitioner’s written statement under subsection (1)(b) of this section; and
    2. Insulin subcutaneously, through the insulin delivery method used by the individual and at the times and under the conditions noted in the health care practitioner’s written statement under subsection (1)(b) of this section.
  3. The written authorization required under subsection (1)(b) of this section shall be kept on file by the authorizing health care practitioner.
  4. The health care practitioner or the caregiver shall inform the individual who has diabetes or the individual’s guardian that the health care practitioner, the caregiver, or his or her employer shall not incur any liability as a result of any injury sustained by the individual from any reaction to any medication listed under subsection (2) of this section to treat a hypoglycemic or hyperglycemic episode or its administration, unless the injury is the result of negligence or misconduct on behalf of the health care practitioner, the caregiver, or his or her employer. The individual or guardian of the individual shall sign a written statement acknowledging that the health care practitioner, the caregiver, or his or her employer shall incur no liability except as provided in this subsection, and the individual or guardian of the individual shall hold harmless the health care practitioner, the caregiver, or his or her employer against any claims made for any reaction to any medication listed under subsection (2) of this section to treat a hypoglycemic or hyperglycemic episode or its administration if the reaction is not due to negligence or misconduct on behalf of the health care practitioner, the caregiver, or his or her employer.
  5. Notwithstanding any other provision of the law to the contrary:
    1. The administration of the medications listed under subsection (2) of this section by an authorized caregiver shall not constitute the practice of nursing and shall be exempt from all applicable statutory and regulatory provisions that restrict the activities that may be delegated to or performed by a person who is not a licensed health care professional; and
    2. A licensed health care professional may provide training to or supervise a caregiver in the administration of the medications listed under subsection (2) of this section.

History. Enact. Acts 2014, ch. 46, § 1, effective April 7, 2014.

214.020. Cabinet to adopt regulations and take other action to prevent spread of disease.

  1. When the Cabinet for Health and Family Services determines that an infectious or contagious disease will invade this state, it shall take necessary action and promulgate administrative regulations under KRS Chapter 13A to prevent the introduction or spread of such infectious or contagious disease or diseases within this state.
  2. Any administrative regulation promulgated under the authority of this section shall:
    1. Be in effect no longer than thirty (30) days if the administrative regulation:
      1. Places restrictions on the in-person meeting or functioning of the following:
        1. Elementary, secondary, or postsecondary educational institutions;
        2. Private businesses or non-profit organizations;
        3. Political, religious, or social gatherings;
        4. Places of worship; or
        5. Local governments; or
      2. Imposes mandatory quarantine or isolation requirements;
    2. Include the penalty, appeal, and due process rights for violations of the administrative regulation; and
    3. Contain the public hearing and written comment period notice required by Section 9 of this Act.

History. 2049, 2056: amend. Acts 1968, ch. 87, § 6; 1974, ch. 74, Art. VI, § 107(1), (3); 1998, ch. 426, § 394, effective July 15, 1998; 2005, ch. 99, § 447, effective June 20, 2005; 2021 ch. 7, § 22, effective February 2, 2021.

214.030. Prevention of tuberculosis — Powers of state board of health. [Repealed.]

Compiler’s Notes.

This section (2061-a-1) was repealed by Acts 1970, ch. 133, § 11.

214.032. Definition for KRS 158.035, 214.010, 214.020, and 214.032 to 214.036.

As used in KRS 158.035 , 214.010 , 214.020 , and 214.032 to 214.036 the term “child” means a person under eighteen (18) years of age.

History. Enact. Acts 1962, ch. 95, § 1; 1968, ch. 87, § 1.

214.034. Immunization of children — Testing and treatment of children for tuberculosis — Requirement for reception and retention of current immunization certificate by schools and child-care facilities.

Except as otherwise provided in KRS 214.036 :

  1. All parents, guardians, and other persons having care, custody, or control of any child shall have the child immunized against diphtheria, tetanus, poliomyelitis, pertussis, measles, rubella, mumps, hepatitis B, and haemophilis influenzae disease in accordance with testing and immunization schedules established by regulations of the Cabinet for Health and Family Services. Additional immunizations may be required by the Cabinet for Health and Family Services through the promulgation of an administrative regulation pursuant to KRS Chapter 13A if recommended by the United States Public Health Service or the American Academy of Pediatrics. All parents, guardians, and other persons having care, custody, or control of any child shall also have any child found to be infected with tuberculosis examined and treated according to administrative regulations of the Cabinet for Health and Family Services promulgated under KRS Chapter 13A. The persons shall also have booster immunizations administered to the child in accordance with the regulations of the Cabinet for Health and Family Services.
  2. A local health department may, with the approval of the Department of Public Health, require all first-time enrollees in a public or private school within the health department’s jurisdiction to be tested for tuberculosis prior to entering school. Following the first year of school, upon an epidemiological determination made by the state or local health officer in accordance with administrative regulations promulgated by the Cabinet for Health and Family Services, all parents, guardians, and other persons having care, custody, or control of any child shall have the child tested for tuberculosis, and shall have any child found to be infected with tuberculosis examined and treated according to administrative regulations of the Cabinet for Health and Family Services. Nothing in this section shall be construed to require the testing for tuberculosis of any child whose parent or guardian is opposed to such testing, and who objects by a written sworn statement to the testing for tuberculosis of the child on religious grounds. However, in a suspected case of tuberculosis, a local health department may require testing of this child.
  3. All public or private primary or secondary schools, and preschool programs shall require a current immunization certificate for any child enrolled as a regular attendee, as provided by administrative regulation of the Cabinet for Health and Family Services, promulgated under KRS Chapter 13A, to be on file within two (2) weeks of the child’s attendance.
  4. All public or private primary schools shall require a current immunization certificate for hepatitis B for any child enrolled as a regular attendee in the sixth grade, as provided by administrative regulation of the Cabinet for Health and Family Services, promulgated under KRS Chapter 13A, to be on file within two (2) weeks of the child’s attendance.
  5. For each child cared for in a day-care center, certified family child-care home, or any other licensed facility which cares for children, a current immunization certificate, as provided by administrative regulation of the Cabinet for Health and Family Services, promulgated under KRS Chapter 13A, shall be on file in the center, home, or facility within thirty (30) days of entrance into the program or admission to the facility.
  6. Any forms relating to exemption from immunization requirements shall be available at public or private primary or secondary schools, preschool programs, day-care centers, certified family child-care homes, or other licensed facilities which care for children.

History. Enact. Acts 1962, ch. 95, § 2; 1968, ch. 87, § 2; 1972, ch. 341, § 2; 1974, ch. 74, Art. VI, § 107(1), (3); 1976, ch. 14, § 1; 1976, ch. 128, § 4; 1982, ch. 271, § 1, effective July 15, 1982; 1996, ch. 306, § 1, effective July 15, 1996; 1998, ch. 302, § 1, effective July 15, 1998; 1998, ch. 426, § 395, effective July 15, 1998; 2000, ch. 349, § 1, effective July 14, 2000; 2005, ch. 99, § 448, effective June 20, 2005; 2008, ch. 124, § 1, effective July 15, 2008.

Legislative Research Commission Note.

(7/15/98). A reference in this statute to the former Department of Health Services has been changed to the Department of Public Health under 1998 Ky. Acts ch. 426, sec. 629, and KRS 7.136(2).

NOTES TO DECISIONS

1.Constitutionality.

Since the primary effect of the state immunization program was to improve and protect the health and well-being of citizens, the exemption for members of a religious denomination, the teachings of which are opposed to medical immunization against disease, did not make this statute unconstitutional as being in violation of the establishment clause of the First Amendment. Kleid v. Board of Education, 406 F. Supp. 902, 1976 U.S. Dist. LEXIS 16997 (W.D. Ky. 1976 ).

Opinions of Attorney General.

A certificate stating that a child has been tested for tuberculosis is required for initial enrollment in any public or private elementary or secondary school system irrespective of age or grade of the child. OAG 76-255 .

The county board of health is authorized to enforce the immunization requirements of this section and KRS 158.035 by entering an order under KRS 212.245 or by proceeding directly against the parent, guardian, or custodian of the child who fails to have him immunized by having a criminal complaint sworn out against the offending adult. OAG 78-24 .

Although it is principally no longer required that a child be tested for tuberculosis as a condition to be met before enrolling in school, and the state board could so recognize this fact by appropriate regulation, the law clearly still requires under this section that all children are to be tested for tuberculosis. Even absent a required schedule for tuberculosis testing, children should be so tested before enrolling in school for the first time. OAG 82-131 .

It is mandatory by law that children are to be tested for tuberculosis and, of course, treated if the child is found to be infected with tuberculosis. OAG 82-131 .

Research References and Practice Aids

Kentucky Law Journal.

Hodge and Gostin, School Vaccination Requirements: Historical, Social, and Legal Perspectives, 90 Ky. L.J. 831 (2001-02).

Note: The Difficult Road to Compelling Vaccination for Sexually Transmitted Diseases-How Gardasil and Those to Follow Will Change the Way that States Require Inoculation, 97 Ky. L.J. 697 (2008/2009).

214.036. Exceptions to testing or immunization requirement.

  1. Nothing contained in KRS 158.035 , 214.010 , 214.020 , 214.032 to 214.036 , and 214.990 shall be construed to require:
    1. The testing for tuberculosis or the immunization of any child at a time when, in the written opinion of his or her attending health care provider, such testing or immunization would be injurious to the child’s health;
    2. The immunization of any child whose parents or guardian are opposed to medical immunization against disease, and who object by a written sworn statement to the immunization of such child based on religious grounds; or
    3. The immunization of any emancipated minor or adult who is opposed to medical immunization against disease, and who objects by a written sworn statement to the immunization based on religious grounds.
  2. In the event of an epidemic in a given area, the Cabinet for Health and Family Services may require the immunization of all persons within the area of epidemic, against the disease responsible for such epidemic, except that any administrative regulation promulgated pursuant to KRS Chapter 13A, administrative order issued by the cabinet, or executive order issued pursuant to KRS Chapter 39A requiring such immunization shall not include:
    1. The immunization of any child or adult for whom, in the written opinion of his or her attending health care provider, such testing or immunization would be injurious to his or her health;
    2. The immunization of any child whose parents or guardians are opposed to medical immunization against disease and who object by a written sworn statement to the immunization based on religious grounds or conscientiously held beliefs; or
    3. The immunization of any emancipated minor or adult who is opposed to medical immunization against disease, and who objects by a written sworn statement to the immunization based on religious grounds or conscientiously held beliefs.
  3. The cabinet shall:
    1. Develop and make available on its Web site a standardized form relating to exemptions in this section from the immunization requirements; and
    2. Accept a completed standardized form when submitted.

History. Enact. Acts 1962, ch. 95, § 4; 1968, ch. 87, § 4; 1974, ch. 74, Art. VI, § 107(3); 1976, ch. 128, § 4; 1980, ch. 55, § 1, effective July 15, 1980; 1998, ch. 426, § 396, effective July 15, 1998; 2005, ch. 99, § 449, effective June 20, 2005; 2021 ch. 147, § 1, effective March 29, 2021.

NOTES TO DECISIONS

1.Constitutionality.

Since the primary effect of the state immunization program was to improve and protect the health and well-being of citizens, this statute was not unconstitutional as being in violation of the establishment clause of the First Amendment. Kleid v. Board of Education, 406 F. Supp. 902, 1976 U.S. Dist. LEXIS 16997 (W.D. Ky. 1976 ).

Cited:

Piatt v. Louisville & Jefferson County Board of Education, 556 F.2d 809, 1977 U.S. App. LEXIS 12994 (6th Cir. 1977).

Opinions of Attorney General.

A chiropractor is not a physician within the meaning of the statute authorizing physicians under certain circumstances by written opinion to exempt children from immunization otherwise required nor was his certification “the best interests of their health” sufficient to meet the statutory requirement that “such immunization would be injurious to the child’s health.” OAG 74-758 .

Unless a child is excepted from immunization or testing for tuberculosis under this section, a child who does not comply with immunization and testing requirements cannot enroll in any public or private school system, and the child’s failure to attend school will subject the parents or the custodians to the penalties set forth in KRS 159.990 . OAG 76-256 .

Research References and Practice Aids

Cross-References.

Certificate of immunization required to enroll student in school, KRS 158.035 .

Kentucky Law Journal.

Hodge and Gostin, School Vaccination Requirements: Historical, Social, and Legal Perspectives, 90 Ky. L.J. 831 (2001-02).

214.040. Smallpox — Vaccination of adults. [Repealed.]

Compiler’s Notes.

This section (4608) was repealed by Acts 1968, ch. 87, § 8.

214.050. Minors to be vaccinated. [Repealed.]

Compiler’s Notes.

This section (4609) was repealed by Acts 1968, ch. 87, § 8.

214.060. Persons coming into state to be vaccinated. [Repealed.]

Compiler’s Notes.

This section (4610) was repealed by Acts 1968, ch. 87, § 8.

214.070. Inmates of charitable and correctional institutions to be vaccinated. [Repealed.]

Compiler’s Notes.

This section (4612) was repealed by Acts 1968, ch. 87, § 8.

214.080. Cities shall require inhabitants to be vaccinated. [Repealed.]

Compiler’s Notes.

This section (4611) was repealed by Acts 1968, ch. 87, § 8.

214.090. Fiscal court may appoint physician to vaccinate — Fees. [Repealed.]

Compiler’s Notes.

This section (4614) was repealed by Acts 1968, ch. 87, § 8.

214.100. Pure vaccine to be used. [Repealed.]

Compiler’s Notes.

This section (4613) was repealed by Acts 1968, ch. 87, § 8.

214.110. Isolation of persons having smallpox — Care of clothing. [Repealed.]

Compiler’s Notes.

This section (4615) was repealed by Acts 1968, ch. 87, § 8.

214.120. Persons exposing themselves to smallpox may be confined. [Repealed.]

Compiler’s Notes.

This section (4616) was repealed by Acts 1968, ch. 87, § 8.

214.130. Annual schools to be held for prevention of trachoma, ophthalmia and other eye diseases. [Repealed.]

Compiler’s Notes.

This section (2062b-1, 2062b-4) was repealed by Acts 1968, ch. 87, § 8.

214.140. Duties of state and county boards of health as to eye diseases. [Repealed.]

Compiler’s Notes.

This section (2602b-2) was repealed by Acts 1968, ch. 87, § 8.

214.150. Duties of physicians, nurses, heads of institutions and heads of families as to eye diseases. [Repealed.]

Compiler’s Notes.

This section (2062b-3) was repealed by Acts 1968, ch. 87, § 8.

214.155. Screening and tests for heritable disorders for newborns and infants — Screening for critical congenital heart disease — Information provided to parent or guardian — Application for federal grants — Section cited as James William Lazzaro and Madison Leigh Heflin Newborn Screening Act.

  1. The Cabinet for Health and Family Services shall operate a newborn screening program for heritable and congenital disorders that includes but is not limited to procedures for conducting initial newborn screening tests on infants twenty-eight (28) days or less of age and definitive diagnostic evaluations provided by a state university-based specialty clinic for infants whose initial screening tests resulted in a positive test. The secretary of the cabinet shall, by administrative regulation promulgated pursuant to KRS Chapter 13A:
    1. Prescribe the times and manner of obtaining a specimen and transferring a specimen for testing;
    2. Prescribe the manner of procedures, testing specimens, and recording and reporting the results of newborn screening tests; and
    3. Establish and collect fees to support the newborn screening program.
  2. The administrative officer or other person in charge of each institution caring for infants twenty-eight (28) days or less of age and the person required in pursuance of the provisions of KRS 213.046 shall register the birth of a child and cause to have administered to every such infant or child in its or his care tests for heritable disorders, including but not limited to phenylketonuria (PKU), sickle cell disease, congenital hypothyroidism, galactosemia, medium-chain acyl-CoA dehydrogenase deficiency (MCAD), very long-chain acyl-CoA deficiency (VLCAD), short-chain acyl-CoA dehydrogenase deficiency (SCAD), maple syrup urine disease (MSUD), congenital adrenal hyperplasia (CAH), biotinidase disorder, cystic fibrosis (CF), 3-methylcrotonyl-CoA carboxylase deficiency (3MCC), 3-OH 3-CH3 glutaric aciduria (HMG), argininosuccinic acidemia (ASA), beta-ketothiolase deficiency (BKT), carnitine uptake defect (CUD), citrullinemia (CIT), glutaric acidemia type I (GA I), Hb S/beta-thalassemia (Hb S/Th), Hb S/C disease (Hb S/C), homocystinuria (HCY), isovaleric acidemia (IVA), long-chain L-3-OH acyl-CoA dehydrogenase deficiency (LCAD), methylmalonic acidemia (Cbl A,B), methylmalonic acidemia mutase deficiency (MUT), multiple carboxylase deficiency (MCD), propionic acidemia (PA), trifunctional protein deficiency (TFP), tyrosinemia type I (TYR I), spinal muscular atrophy (SMA), and krabbe disease. The listing of tests for heritable disorders to be performed shall include all conditions consistent with the recommendations of the American College of Medical Genetics.
  3. The administrative officer or other person in charge of each institution caring for infants twenty-eight (28) days or less of age and the person required in pursuance of the provisions of KRS 213.046 shall register the birth of a child and cause to have administered to every such infant or child in its or his care a screening for critical congenital heart disease (CCHD) prior to discharge unless CCHD has been ruled out or diagnosed with prior echocardiogram or prenatal diagnosis of CCHD.
  4. Each health care provider of newborn care shall provide an infant’s parent or guardian with information about the newborn screening tests required under subsections (2) and (3) of this section. The institution or health care provider shall arrange for appropriate and timely follow-ups to the newborn screening tests, including but not limited to additional diagnoses, evaluation, and treatment when indicated.
  5. Nothing in this section shall be construed to require the testing of any child whose parents are members of a nationally recognized and established church or religious denomination, the teachings of which are opposed to medical tests, and who object in writing to the testing of his or her child on that ground.
  6. The cabinet shall make available the names and addresses of health care providers, including but not limited to physicians, nurses, and nutritionists, who may provide postpartum home visits to any family whose infant or child has tested positive for a newborn screening test.
  7. A parent or guardian shall be provided information by the institution or health care provider of newborn care about the availability and costs of screening tests not specified in subsections (2) and (3) of this section. The parent or guardian shall be responsible for costs relating to additional screening tests performed under this subsection, and these costs shall not be included in the fees established for the cabinet’s newborn screening program under subsection (1) of this section. All positive results of additional screening of these tests shall be reported to the cabinet by the institution or health care provider.
    1. For the purposes of this subsection, a qualified laboratory means a clinical laboratory not operated by the cabinet that is accredited pursuant to 42 U.S.C. sec. 263 a, licensed to perform newborn screening testing in any state, and reports its screening results using normal pediatric reference ranges. (8) (a) For the purposes of this subsection, a qualified laboratory means a clinical laboratory not operated by the cabinet that is accredited pursuant to 42 U.S.C. sec. 263 a, licensed to perform newborn screening testing in any state, and reports its screening results using normal pediatric reference ranges.
    2. The cabinet shall enter into agreements with public or private qualified laboratories to perform newborn screening tests if the laboratory operated by the cabinet is unable to screen for a condition specified in subsection (2) of this section.
    3. The cabinet may enter into agreements with public or private qualified laboratories to perform testing for conditions not specified in subsection (2) of this section. Any agreement entered into under this paragraph shall not preclude an institution or health care provider from conducting newborn screening tests for conditions not specified in subsections (2) and (3) of this section by utilizing other public or private qualified laboratories.
  8. The secretary for health and family services or his or her designee shall apply for any federal funds or grants available through the Public Health Service Act and may solicit and accept private funds to expand, improve, or evaluate programs to provide screening, counseling, testing, or specialty services for newborns or children at risk for heritable disorders.
  9. This section shall be cited as the James William Lazzaro and Madison Leigh Heflin Newborn Screening Act.

History. Enact. Acts 1966, ch. 45; 1974, ch. 74, Art. VI, § 107(2); 1982, ch. 39, § 1, effective July 15, 1982; 1986, ch. 447, § 2, effective April 11, 1986; 1988, ch. 277, § 1, effective July 15, 1988; 1990, ch. 369, § 35, effective July 13, 1990; 1998, ch. 426, § 397, effective July 15, 1998; 2000, ch. 457, § 3, effective July 14, 2000; 2001, ch. 31, § 1, effective June 21, 2001; 2005, ch. 66, § 1, effective March 11, 2005; 2005, ch. 99, § 450, effective June 20, 2005; 2006, ch. 180, § 1, effective July 12, 2006; 2013, ch. 24, § 1, effective January 1, 2014; 2015 ch. 6, § 1, effective June 24, 2015; 2020 ch. 55, § 1, effective July 15, 2020.

NOTES TO DECISIONS

1.Instructions.

The instructions given by the trial court in a negligence action for failure to perform a phenylketonuria (PKU) blood test on a newborn infant instructed the jury on mutually exclusive theories of liability. One instruction dealt with the hospital’s statutory duty to comply with this section, while another instruction dealt with the hospital’s duty to exercise ordinary care in complying with the procedures it had established for carrying out its statutory duty. These two instructions did not impose two duties of care for the same act. Indeed, proof was adduced with respect to both duties and the jury found that hospital had failed to comply with both duties. Humana of Kentucky, Inc. v. McKee, 834 S.W.2d 711, 1992 Ky. App. LEXIS 183 (Ky. Ct. App. 1992).

214.160. Blood specimen of pregnant women to be taken — Laboratory test — Substance abuse tests of pregnant women and newborn infants — Use of tests — Report if infant is affected by substance abuse withdrawal symptoms — Test for presence of hepatitis B and hepatitis C.

  1. Every physician and every other person legally permitted to engage in attendance upon a pregnant woman in this state shall take or cause to be taken from the woman a specimen of blood for serological test for syphilis as soon as he is engaged to attend the woman and has reasonable grounds for suspecting that pregnancy exists. If the woman is in labor at the time the diagnosis of pregnancy is made, which may make it inadvisable to obtain a blood specimen at that time, the specimen shall be obtained within ten (10) days after delivery. The specimen of blood shall be submitted to the laboratory of the Cabinet for Health and Family Services or a laboratory approved by the cabinet for the purpose of having made a serological test for syphilis. The test shall be of a type approved by the Cabinet for Health and Family Services.
  2. The Cabinet for Health and Family Services shall, as often as necessary, publish a list of the five (5) most frequently abused substances, including alcohol, by pregnant women in the Commonwealth. Any physician and any other person legally permitted to engage in attendance upon a pregnant woman in this state may perform a screening for alcohol or substance dependency or abuse, including a comprehensive history of such behavior. Any physician may administer a toxicology test to a pregnant woman under the physician’s care within eight (8) hours after delivery to determine whether there is evidence that she has ingested alcohol, a controlled substance, or a substance identified on the list provided by the cabinet, or if the woman has obstetrical complications that are a medical indication of possible use of any such substance for a nonmedical purpose.
  3. Any physician or person legally permitted to engage in attendance upon a pregnant woman may administer to each newborn infant born under that person’s care a toxicology test to determine whether there is evidence of prenatal exposure to alcohol, a controlled substance, or a substance identified on the list provided by the Cabinet for Health and Family Services, if the attending person has reason to believe, based on a medical assessment of the mother or the infant, that the mother used any such substance for a nonmedical purpose during the pregnancy.
  4. The circumstances surrounding any positive toxicology finding shall be evaluated by the attending person to determine if abuse or neglect of the infant, as defined under KRS 600.020(1), shall be reported to the state’s child protective services agency.
  5. An infant affected by substance abuse withdrawal symptoms resulting from prenatal drug exposure or fetal alcohol spectrum disorder shall be reported to the state’s child protective services agency in accordance with 42 U.S.C. sec. 5106 a.
  6. No prenatal screening for alcohol or other substance abuse or positive toxicology finding shall be used as prosecutorial evidence.
  7. No person shall conduct or cause to be conducted any toxicological test pursuant to this section on any pregnant woman without first informing the pregnant woman of the purpose of the test.
  8. Every physician or other person legally permitted to engage in attendance upon a pregnant woman in the Commonwealth shall take or cause to be taken from the woman a specimen of blood which shall be submitted for the purpose of serologic testing for the presence of hepatitis B surface antigen to a laboratory certified by the United States Department for Health and Human Services pursuant to Section 333 of the Public Health Service Act (42 U.S.C. sec. 263 a), as revised by the Clinical Laboratory Improvement Amendments (CLIA), Pub.L. 100-578.
    1. Every physician or other person legally permitted to engage in attendance upon a pregnant woman in the Commonwealth shall take or cause to be taken from the woman a specimen of blood which shall be submitted for the purpose of serologic testing for the presence of hepatitis C virus antibodies and RNA in the blood. (9) (a) Every physician or other person legally permitted to engage in attendance upon a pregnant woman in the Commonwealth shall take or cause to be taken from the woman a specimen of blood which shall be submitted for the purpose of serologic testing for the presence of hepatitis C virus antibodies and RNA in the blood.
    2. The results of this testing shall be recorded by the physician or other person legally permitted to engage in attendance upon a pregnant woman in the Commonwealth, in:
      1. The permanent medical record of the woman; and
      2. The permanent medical record of the child or children she was pregnant with at the time of the testing after the child or children are born.
    3. If the woman receives a test result that shows she is positive for hepatitis C virus antibodies or RNA, the physician or other person legally permitted to engage in attendance upon a pregnant woman in the Commonwealth shall orally inform and clearly document the woman or the legal guardian of the child or children she was pregnant with at the time of the testing, that it is recommended that serologic testing for the presence of hepatitis C virus antibodies and confirmation RNA in the blood be conducted on the child or children she was pregnant with at the time of the testing at the twenty-four (24) month recommended well baby pediatric check-up.

History. 2062b-5: amend. Acts 1982, ch. 146, § 1, effective June 15, 1982; 1992, ch. 442, § 3, effective July 14, 1992; 1998, ch. 79, § 1, effective July 15, 1998; 1998, ch. 426, § 398, effective July 15, 1998; 2005, ch. 99, § 451, effective June 20, 2005; 2018 ch. 125, § 1, effective July 14, 2018; 2020 ch. 36, § 33, effective July 15, 2020.

Legislative Research Commission Notes.

(7/14/2018). Under the authority of KRS 7.136(1), the Reviser of Statutes has altered the format of the text in subsection (8) of this statute during codification. The words in the text were not changed.

214.170. Person taking to identify blood specimen — Reports of tests.

Every physician or other person who takes or causes to be taken from a woman in pregnancy, or suspected pregnancy, a blood specimen for serological tests for syphilis, shall identify the specimen as being from a pregnant woman submitting it for tests. The laboratory shall report the result of the test if reactive on forms prepared and furnished by the Cabinet for Health and Family Services to the Cabinet for Health and Family Services not later than one (1) week after the examination is made.

History. 2062b-6; amend. Acts 1972, ch. 157, § 1; 1974, ch. 74, Art. VI, § 107(1); 1998, ch. 426, § 399, effective July 15, 1998; 2005, ch. 99, § 452, effective June 20, 2005.

214.175. Anonymous surveys of substance abuse during pregnancy — Participation — Confidentiality — Funding.

  1. The Cabinet for Health and Family Services may conduct periodic anonymous surveys to determine the prevalence within the Commonwealth of drug and alcohol use during pregnancy. These periodic surveys may include, but are not limited to, toxicology tests to determine the presence of alcohol, controlled substances, or other drugs which have not been prescribed due to medical necessity.
  2. All hospitals and any other health facilities licensed pursuant to KRS Chapter 216B which provide for obstetrical services, including delivery of newborn infants, shall, as a condition of licensure, participate in any periodic surveys conducted by the Cabinet for Health and Family Services for the purposes of determining the prevalence of alcohol or other substance abuse among pregnant women and newborn infants.
  3. Any surveys conducted pursuant to this section shall be conducted according to guidelines established by the Cabinet for Health and Family Services. The toxicology test may be performed without a physician’s order and without patient or parental consent. For the purpose of this section any toxicology test performed shall be considered medically necessary.
  4. The results of any individual toxicology tests performed pursuant to this section shall remain confidential and shall only be released to the Cabinet for Health and Family Services. Any results shall be collected and compiled in aggregate form without the name of the hospital, patient, or other means of identifying the individual subject of the test.
  5. No test result obtained pursuant to this section shall be admissible in any court or other hearing as evidence in any proceeding, criminal or civil, against the individual subject of the test.
  6. No hospital shall incur any liability, except for negligence, for performing any test required or authorized under KRS 214.160 and 214.175 or for reporting the result of the test pursuant to any administrative regulation promulgated by the Cabinet for Health and Family Services under KRS Chapter 13A in accordance with this section.
  7. The cabinet may use any state appropriation and any gifts, grants, or federal funds that become available for the purposes of implementing the provisions of this section.

History. Enact. Acts 1992, ch. 442, § 4, effective July 14, 1992; 1998, ch. 426, § 400, effective July 15, 1998; 2005, ch. 99, § 453, effective June 20, 2005.

214.180. Birth certificate — Statement as to blood test. [Repealed.]

Compiler’s Notes.

This section (2062b-7) was repealed by Acts 1972, ch. 157, § 4.

214.181. Legislative findings — General consent to testing for HIV — Emergency procedures — Disclosures of test results — Voluntary testing programs in each county.

  1. The General Assembly finds that the use of tests designed to reveal a condition indicative of human immunodeficiency virus (HIV) infection can be a valuable tool in protecting the public health. The General Assembly finds that knowledge of HIV status is increasingly important for all persons since treatment using antiretroviral medications can slow disease progression, prolong and improve the lives of HIV-positive individuals, and reduce the likelihood of perinatal mother-to-child transmission. Many members of the public are deterred from seeking testing because they misunderstand the nature of the test or fear that test results will be disclosed without their consent. The General Assembly finds that the public health will be served by facilitating informed, voluntary, and confidential use of tests designed to detect human immunodeficiency virus infection.
  2. A person who has signed a general consent form for the performance of medical procedures and tests is not required to also sign or be presented with a specific consent form relating to medical procedures or tests to determine human immunodeficiency virus infection, antibodies to human immunodeficiency virus, or infection with any other causative agent of acquired immunodeficiency syndrome that will be performed on the person during the time in which the general consent form is in effect. However, a general consent form shall instruct the patient that, as part of the medical procedures or tests, the patient may be tested for human immunodeficiency virus infection, hepatitis, or any other blood-borne infectious disease if a doctor or advanced practice registered nurse orders the test for diagnostic purposes. Except as otherwise provided in subsection (5)(d) of this section, the results of a test or procedure to determine human immunodeficiency virus infection, antibodies to human immunodeficiency virus, or infection with any probable causative agent of acquired immunodeficiency syndrome performed under the authorization of a general consent form shall be used only for diagnostic or other purposes directly related to medical treatment.
  3. In any emergency situation where informed consent of the patient cannot reasonably be obtained before providing health-care services, there is no requirement that a health-care provider obtain a previous informed consent.
  4. The physician or advanced practice registered nurse who orders the test pursuant to subsections (1) and (2) of this section, or the attending physician, or designee, shall be responsible for informing the patient of the results of the test if the test results are positive for human immunodeficiency virus infection. If the tests are positive, the physician or advanced practice registered nurse or designee, shall also be responsible for either:
    1. Providing information and counseling to the patient concerning his infection or diagnosis and the known medical implications of such status or condition; or
    2. Referring the patient to another appropriate professional or health-care facility for the information and counseling.
    1. No person in this state shall perform a test designed to identify the human immunodeficiency virus, or its antigen or antibody, without first obtaining the informed consent of the person upon whom the test is being performed, except as specified in subsections (2) and (3) of this section. (5) (a) No person in this state shall perform a test designed to identify the human immunodeficiency virus, or its antigen or antibody, without first obtaining the informed consent of the person upon whom the test is being performed, except as specified in subsections (2) and (3) of this section.
    2. No test result shall be determined as positive, and no positive test result shall be revealed to any person, without corroborating or confirmatory tests being conducted.
      1. Nothing in this subsection shall be construed as prohibiting the disclosure to the patient of preliminary positive results from HIV rapid tests if results are delivered with an explanation of the following: (c) 1. Nothing in this subsection shall be construed as prohibiting the disclosure to the patient of preliminary positive results from HIV rapid tests if results are delivered with an explanation of the following:
        1. The meaning of a reactive rapid test;
        2. The importance of confirmatory testing; and
        3. The importance of taking precautions to reduce the risk of infecting others while awaiting the results of confirmatory testing.
      2. In special cases where immediate actions may be necessary to protect a patient, such as potential perinatal transmission or incidents warranting post-exposure prophylaxis, a preliminary positive result from a HIV rapid test may be disclosed to the patient and used as a basis to recommend options for prophylaxis or treatment.
    3. No person who has obtained or has knowledge of a test result pursuant to this section shall disclose or be compelled to disclose the identity of any person upon whom a test is performed, or the results of the test in a manner which permits identification of the subject of the test, except to the following persons:
      1. The subject of the test or the subject’s legally authorized representative;
      2. Any person designated in a legally effective release of the test results executed prior to or after the test by the subject of the test or the subject’s legally authorized representative;
      3. A physician, nurse, or other health-care personnel who has a legitimate need to know the test result in order to provide for his protection and to provide for the patient’s health and welfare;
      4. Health-care providers consulting between themselves or with health-care facilities to determine diagnosis and treatment;
      5. The cabinet, in accordance with rules for reporting and controlling the spread of disease, as otherwise provided by state law;
      6. A health facility or health-care provider which procures, processes, distributes, or uses:
        1. A human body part from a deceased person, with respect to medical information regarding that person; or
        2. Semen provided prior to the effective date of this section for the purpose of artificial insemination;
      7. Health facility staff committees, for the purposes of conducting program monitoring, program evaluation, or service reviews;
      8. Authorized medical or epidemiological researchers who shall not further disclose any identifying characteristics or information;
      9. A person allowed access by a court order that is issued in compliance with the following provisions:
        1. No court of this state shall issue an order to permit access to a test for human immunodeficiency virus performed in a medical or public health setting to any person not authorized by this section or by KRS 214.420 . A court may order an individual to be tested for human immunodeficiency virus only if the person seeking the test results has demonstrated a compelling need for the test results which cannot be accommodated by other means. In assessing compelling need, the court shall weigh the need for testing and disclosure against the privacy interest of the test subject and the public interest which may be disserved by disclosure which deters blood, organ, and semen donation and future human-immunodeficiency-virus-related testing or which may lead to discrimination. This paragraph shall not apply to blood bank donor records;
        2. Pleadings pertaining to disclosure of test results shall substitute a pseudonym for the true name of the subject of the test. The disclosure to the parties of the subject’s true name shall be communicated confidentially, in documents not filed with the court;
        3. Before granting any order, the court shall provide the individual whose test result is in question with notice and a reasonable opportunity to participate in the proceedings if he or she is not already a party;
        4. Court proceedings as to disclosure of test results shall be conducted in camera, unless the subject of the test agrees to a hearing in open court or unless the court determines that a public hearing is necessary to the public interest and the proper administration of justice;
        5. Upon the issuance of an order to disclose test results, the court shall impose appropriate safeguards against unauthorized disclosure, which shall specify the persons who may have access to the information, the purposes for which the information shall be used, and appropriate prohibitions on future disclosure. No person to whom the results of a test have been disclosed shall disclose the test results to another person except as authorized by this subsection. When disclosure is made pursuant to this subsection, it shall be accompanied by a statement in writing that includes the following or substantially similar language: “This information has been disclosed to you from records whose confidentiality is protected by state law. State law prohibits you from making any further disclosure of such information without the specific written consent of the person to whom such information pertains, or as otherwise permitted by state law. A general authorization for the release of medical or other information is NOT sufficient for this purpose.” An oral disclosure shall be accompanied by oral notice and followed by a written notice within ten (10) days.
    1. The Cabinet for Health and Family Services shall establish a network of voluntary human immunodeficiency virus testing programs in every county in the state. These programs shall be conducted in each public health department established under the provisions of KRS Chapter 212. Additional programs may be contracted to other private providers to the extent that finances permit and local circumstances dictate. (6) (a) The Cabinet for Health and Family Services shall establish a network of voluntary human immunodeficiency virus testing programs in every county in the state. These programs shall be conducted in each public health department established under the provisions of KRS Chapter 212. Additional programs may be contracted to other private providers to the extent that finances permit and local circumstances dictate.
    2. Each public health department shall have the ability to provide counseling and testing for the human immunodeficiency virus to each patient who receives services and shall offer the testing on a voluntary basis to each patient who requests the test.
    3. Each public health department shall provide a program of counseling and testing for human immunodeficiency virus infection, on an anonymous or confidential basis, dependent on the patient’s desire. If the testing is performed on an anonymous basis, only the statistical information relating to a positive test for human immunodeficiency virus infection shall be reported to the cabinet. If the testing is performed on a confidential basis, the name and other information specified under KRS 214.645 shall be reported to the cabinet. The cabinet shall continue to provide for anonymous testing and counseling.
    4. The result of a serologic test conducted under the auspices of the cabinet shall not be used to determine if a person may be insured for disability, health, or life insurance or to screen or determine suitability for, or to discharge a person from, employment. Any person who violates the provisions of this subsection shall be guilty of a Class A misdemeanor.
  5. No public health department and no other private or public facility shall be established for the primary purpose of conducting a testing program for acquired immunodeficiency syndrome, acquired immunodeficiency syndrome related complex, or human immunodeficiency virus status without first registering with the cabinet, complying with all other applicable provisions of state law, and meeting the following requirements:
    1. The program shall be directed by a person who has completed an educational course approved by the cabinet in the counseling of persons with acquired immunodeficiency syndrome, acquired immunodeficiency syndrome related complex, or human immunodeficiency virus infection;
    2. The program shall have all medical care supervised by a physician licensed under the provisions of KRS Chapter 311;
    3. The program shall have all laboratory procedures performed in a laboratory licensed under the provisions of KRS Chapter 333;
    4. Informed consent shall be required prior to testing.   Informed consent shall be preceded by an explanation of the test, including its purpose, potential uses, and limitations and the meaning of its results;
    5. The program, unless it is a blood donor center, shall provide pretest counseling on the meaning of a test for human immunodeficiency virus, including medical indications for the test; the possibility of false positive or false negative results; the potential need for confirmatory testing; the potential social, medical, and economic consequences of a positive test result; and the need to eliminate high-risk behavior;
    6. The program shall provide supplemental corroborative testing on all positive test results before the results of any positive test is provided to the patient;
    7. The program shall provide post-test counseling, in person, on the meaning of the test results; the possible need for additional testing; the social, medical, and economic consequences of a positive test result; and the need to eliminate behavior which might spread the disease to others;
    8. Each person providing post-test counseling to a patient with a positive test result shall receive specialized training, to be specified by regulation of the cabinet, about the special needs of persons with positive results, including recognition of possible suicidal behavior, and shall refer the patient for further health and social services as appropriate;
    9. When services are provided for a charge during pretest counseling, testing, supplemental testing, and post-test counseling, the program shall provide a complete list of all charges to the patient and the cabinet; and
    10. Nothing in this subsection shall be construed to require a facility licensed under KRS Chapter 333 or a person licensed under the provisions of KRS Chapters 311, 312, or 313 to register with the cabinet if he or she does not advertise or hold himself or herself out to the public as conducting testing programs for human immunodeficiency virus infection or specializing in such testing.
  6. Any violation of this section by a licensed health-care provider shall be a ground for disciplinary action contained in the professional’s respective licensing chapter.
  7. Except as provided in subsection (6)(d) of this section, insurers and others participating in activities related to the insurance application and underwriting process shall be exempt from this section.
  8. The cabinet shall develop program standards consistent with the provisions of this section for counseling and testing persons for the human immunodeficiency virus.

History. Enact. Acts 1990, ch. 495, § 18, effective January 1, 1991; 1998, ch. 426, § 401, effective July 15, 1998; 2000, ch. 432, § 7, effective July 14, 2000; 2004, ch. 102, § 2, effective July 13, 2004; 2005, ch. 99, § 454, effective June 20, 2005; 2008, ch. 150, § 1, effective July 15, 2008; 2010, ch. 85, § 73, effective July 15, 2010; 2019 ch. 134, § 1, effective June 27, 2019.

Legislative Research Commission Note.

(7/15/2008). 2008 Ky. Acts ch. 150, sec. 1, inserted an additional paragraph into subsection (5) of this section and changed the existing paragraph (c) to paragraph (d), but that Act failed to include a conforming amendment to change the reference to that paragraph in subsection (2) of this statute. Under KRS 7.136(1)(e), that change has now been made.

NOTES TO DECISIONS

1.In General.

KRS 446.070 , which codifies the doctrine of negligence per se, creates a private right of action for violations of KRS 214.181 . Mallard v. Wynn-Singer & Assocs. (In re Mallard), 2014 Bankr. LEXIS 974 (Bankr. E.D. Ky. Mar. 12, 2014).

Research References and Practice Aids

Northern Kentucky Law Review.

Braden, Aids: Dealing With the Plague, 19 N. Ky. L. Rev. 277 (1992).

214.185. Diagnosis and treatment of disease, addictions, or other conditions of minor.

  1. Any physician, upon consultation by a minor as a patient, with the consent of such minor may make a diagnostic examination for venereal disease, pregnancy, or substance use disorder and may advise, prescribe for, and treat such minor regarding venereal disease, substance use disorder, contraception, pregnancy, or childbirth, all without the consent of or notification to the parent, parents, or guardian of such minor patient, or to any other person having custody of such minor patient. Treatment under this section does not include inducing of an abortion or performance of a sterilization operation. In any such case, the physician shall incur no civil or criminal liability by reason of having made such diagnostic examination or rendered such treatment, but such immunity shall not apply to any negligent acts or omissions.
  2. Any physician may provide outpatient mental health counseling to any child age sixteen (16) or older upon request of such child without the consent of a parent, parents, or guardian of such child.
  3. Notwithstanding any other provision of the law, and without limiting cases in which consent may be otherwise obtained or is not required, any emancipated minor or any minor who has contracted a lawful marriage or borne a child may give consent to the furnishing of hospital, medical, dental, or surgical care to his or her child or himself or herself and such consent shall not be subject to disaffirmance because of minority. The consent of the parent or parents of such married or emancipated minor shall not be necessary in order to authorize such care. For the purpose of this section only, a subsequent judgment of annulment of marriage or judgment of divorce shall not deprive the minor of his adult status once obtained. The provider of care may look only to the minor or spouse for payment for services under this section unless other persons specifically agree to assume the cost.
  4. Medical, dental, and other health services may be rendered to minors of any age without the consent of a parent or legal guardian when, in the professional’s judgment, the risk to the minor’s life or health is of such a nature that treatment should be given without delay and the requirement of consent would result in delay or denial of treatment.
  5. The consent of a minor who represents that he may give effective consent for the purpose of receiving medical, dental, or other health services but who may not in fact do so, shall be deemed effective without the consent of the minor’s parent or legal guardian, if the person rendering the service relied in good faith upon the representations of the minor.
  6. The professional may inform the parent or legal guardian of the minor patient of any treatment given or needed where, in the judgment of the professional, informing the parent or guardian would benefit the health of the minor patient.
  7. Except as otherwise provided in this section, parents, the Cabinet for Health and Family Services, or any other custodian or guardian of a minor shall not be financially responsible for services rendered under this section unless they are essential for the preservation of the health of the minor.

History. Enact. Acts 1970, ch. 104, § 1; 1972, ch. 163, paras. (1) to (6); 1974, ch. 74, Art. VI, § 107(1), (13); 1988, ch. 283, § 2, effective July 15, 1988; 1998, ch. 426, § 402, effective July 15, 1998; 2005, ch. 99, § 455, effective June 20, 2005; 2019 ch. 128, § 8, effective June 27, 2019.

NOTES TO DECISIONS

1.Consent to Abortion.

During that stage of pregnancy before viability of the fetus parental consent to a minor’s abortion is not required since such a regulation would interfere with pregnant minor’s right of privacy in abortion decision at a time when the state’s interest in protecting the potentiality of human life is not compelling. Wolfe v. Schroering, 388 F. Supp. 631, 1974 U.S. Dist. LEXIS 5712 (W.D. Ky. 1974 ), aff'd in part and rev'd in part, 541 F.2d 523, 1976 U.S. App. LEXIS 7513 (6th Cir. Ky. 1976 ).

Opinions of Attorney General.

Under the 1972 amendment to this section by Chapter 163, paragraph (1), a health department would not be liable in the event that contraceptive services were refused to a minor who had requested them and the minor subsequently became pregnant as a result of the failure to provide such services, as the provisions of this section are permissive rather than mandatory. OAG 72-185 .

Under the 1972 amendment to this section by Chapter 163, paragraph (1), a health department would not be liable for suit where contraceptive services were provided to a minor without the permission of or in spite of objections by the parent or legal guardian of the minor. OAG 72-490 .

Research References and Practice Aids

Kentucky Law Journal.

Comment, The Distribution of Contraceptives to Unemancipated Minors: Does a Parent have a Constitutional Right to be Notified? 69 Ky. L.J. 436 (1980-81).

Smith, Medical and Psychotherapy Privileges and Confidentiality: On Giving With One Hand and Removing With the Other, 75 Ky. L.J. 473 (1986-87).

Northern Kentucky Law Review.

Comments, The Constitutionality of Mandatory Parental Consent in the Abortion Decision of a Minor, Bellotti II in Perspective, 4 N. Ky. L. Rev. 323 (1977).

Treatises

Petrilli, Kentucky Family Law, Minors, § 30.20.

214.185. Diagnosis and treatment of disease, addictions, or other conditions of minor.

  1. Any physician, upon consultation by a minor as a patient, with the consent of such minor may make a diagnostic examination for venereal disease, pregnancy, or substance use disorder and may advise, prescribe for, and treat such minor regarding venereal disease, substance use disorder, contraception, pregnancy, or childbirth, all without the consent of or notification to the parent, parents, or guardian of such minor patient, or to any other person having custody of such minor patient. Treatment under this section does not include inducing of an abortion or performance of a sterilization operation. In any such case, the physician shall incur no civil or criminal liability by reason of having made such diagnostic examination or rendered such treatment, but such immunity shall not apply to any negligent acts or omissions.
  2. Any physician may provide outpatient mental health counseling to any child age sixteen (16) or older upon request of such child without the consent of a parent, parents, or guardian of such child.
  3. Any qualified mental health professional, as defined by KRS 202A.011 , may provide outpatient mental health counseling to any child who is age sixteen (16) or older and is an unaccompanied youth, as defined by 42 U.S.C. sec. 11434 a(6), upon request of such child without the consent of a parent, parents, or guardian of such child.
  4. Notwithstanding any other provision of the law, and without limiting cases in which consent may be otherwise obtained or is not required, any emancipated minor or any minor who has contracted a lawful marriage or borne a child may give consent to the furnishing of hospital, medical, dental, or surgical care to his or her child or himself or herself and such consent shall not be subject to disaffirmance because of minority. The consent of the parent or parents of such married or emancipated minor shall not be necessary in order to authorize such care. For the purpose of this section only, a subsequent judgment of annulment of marriage or judgment of divorce shall not deprive the minor of his adult status once obtained. The provider of care may look only to the minor or spouse for payment for services under this section unless other persons specifically agree to assume the cost.
  5. Medical, dental, and other health services may be rendered to minors of any age without the consent of a parent or legal guardian when, in the professional’s judgment, the risk to the minor’s life or health is of such a nature that treatment should be given without delay and the requirement of consent would result in delay or denial of treatment.
  6. The consent of a minor who represents that he may give effective consent for the purpose of receiving medical, dental, or other health services but who may not in fact do so, shall be deemed effective without the consent of the minor’s parent or legal guardian, if the person rendering the service relied in good faith upon the representations of the minor.
  7. The consent of a minor who represents that he or she may give effective consent for the purpose of receiving outpatient mental health counseling from a qualified mental health professional, but who may not in fact do so, shall be deemed effective without the consent of the minor’s parent or legal guardian if the person rendering the service relied in good faith upon the representations of the minor after a reasonable attempt to obtain parental consent or to verify the minor’s age and status as an unaccompanied youth.
  8. The professional may inform the parent or legal guardian of the minor patient of any treatment given or needed where, in the judgment of the professional, informing the parent or guardian would benefit the health of the minor patient.
  9. Except as otherwise provided in this section, parents, the Cabinet for Health and Family Services, or any other custodian or guardian of a minor shall not be financially responsible for services rendered under this section unless they are essential for the preservation of the health of the minor.

HISTORY: Enact. Acts 1970, ch. 104, § 1; 1972, ch. 163, paras. (1) to (6); 1974, ch. 74, Art. VI, § 107(1), (13); 1988, ch. 283, § 2, effective July 15, 1988; 1998, ch. 426, § 402, effective July 15, 1998; 2005, ch. 99, § 455, effective June 20, 2005; 2019 ch. 128, § 8, effective June 27, 2019; 2021 ch. 32, § 4.

214.187. Statewide hepatitis C education, awareness, and information program.

  1. The Department for Public Health shall develop a statewide education, awareness, and information program on hepatitis C. The hepatitis C education, awareness, and information program may be incorporated into other existing health education programs. The Department for Public Health may make available on its Internet Web site protocols, guidelines, and materials for hepatitis C education, awareness, and information programs that increase the understanding of the disease among general and high-risk populations.
  2. The hepatitis C education, awareness, and information program may include material to specifically address individuals who may be at high risk of infection, including but not limited to law enforcement officials, corrections personnel, prisoners, veterans, individuals who received blood transfusions prior to 1992, hemophiliacs, students, and minority communities. The program may utilize education materials developed by health-related companies and community-based or national advocacy organizations. The program may include but not be limited to counseling, patient support groups, and existing hotlines for consumers.
  3. In developing the hepatitis C education, awareness, and information program, the department shall consult the University of Kentucky College of Medicine, the University of Louisville School of Medicine, the Pikeville College School of Osteopathic Medicine, the American Liver Foundation, the Centers for Disease Control and Prevention, and any other scientific, medical, or advocacy organizations to develop the protocols and guidelines for the hepatitis C education, awareness, and information program. The protocols and guidelines may include but are not limited to the following:
    1. The risk factors associated with hepatitis C acquisition and transmission;
    2. The most recent scientific and medical information on hepatitis C prevention, detection, diagnosis, treatment, and therapeutic decision making;
    3. Tracking and reporting of acute cases of hepatitis C by public health officials;
    4. Protocols for public safety and health care workers who come in contact with hepatitis C patients; and
    5. Surveillance programs to determine the prevalence of hepatitis C in ethnic and other high-risk populations.
  4. The Department for Public Health may coordinate with the Department of Veterans’ Affairs and the Department of Corrections to establish specific recommendations for the hepatitis C education, awareness, and information program. The protocols and guidelines established by the Department for Public Health, the Department of Corrections, and the Department of Veterans” Affairs may include topics specified in subsection (3) of this section and may include but are not limited to protocols within state agencies to enable departments to provide appropriate treatment for individuals with hepatitis C, protocols for the education of state agency officials and other employees who work with individuals with hepatitis C, and protocols within the Department of Corrections to provide written hepatitis C information to prisoners on the date of their probation, parole, or release.
  5. The Department for Public Health shall make information on the hepatitis C education, awareness, and information program available upon request.

HISTORY: Enact. Acts 2006, ch. 133, § 1, effective July 12, 2006; 2017 ch. 80, § 44, effective June 29, 2017.

214.190. Appliances for prevention of venereal diseases — License required for sale. [Repealed.]

Compiler’s Notes.

This section (2635c-1) was repealed by Acts 1984, ch. 113, § 8.

214.200. Kinds of licenses for sale of appliances — Form — Display — Business authorized. [Repealed.]

Compiler’s Notes.

This section (2635c-2; 2635c-3; 2635c-4; 2635c-5) was repealed by Acts 1984, ch. 113, § 8.

214.210. Issuance of licenses — Fees. [Repealed.]

Compiler’s Notes.

This section (2635c-9: amend. Acts 1972, ch. 157, § 5) was repealed by Acts 1984, ch. 113, § 8.

214.220. Revocation of licenses. [Repealed.]

Compiler’s Notes.

This section (2635c-11) was repealed by Acts 1984, ch. 113, § 8.

214.230. Advertisement of appliances forbidden. [Repealed.]

Compiler’s Notes.

This section (2635c-1, 2635c-8) was repealed by Acts 1972, ch. 157, § 4.

214.240. Restrictions as to methods of sale. [Repealed.]

Compiler’s Notes.

This section (2635c-5; 2635c-6) was repealed by Acts 1984, ch. 113, § 8.

214.250. Appliances to meet certain requirements. [Repealed.]

Compiler’s Notes.

This section (2635c-6; 2635c-7) was repealed by Acts 1984, ch. 113, § 8.

214.260. Rules for enforcement of appliance law. [Repealed.]

Compiler’s Notes.

This section (2635c-7; 2635c-13) was repealed by Acts 1984, ch. 113, § 8.

214.270. Confiscation of appliances. [Repealed.]

Compiler’s Notes.

This section (2635c-10) was repealed by Acts 1984, ch. 113, § 8.

214.280. Regulation of mattresses — “Mattress” defined.

As used in KRS 214.290 to 214.310 , “mattress” means any mattress, mattress pad or cushion, stuffed or filled with cotton, wool, hair, upholstered spring, or other soft material, to be used on a couch or other bed for sleeping or reclining purposes.

History. 2062d-1.

214.290. Materials used in mattresses — Regulation of.

No person shall employ or use, in the making, remaking or renovating of any mattress, any material that has been used in or has formed a part of any mattress used in or about any public or private hospital, or any institution for the treatment of persons suffering from disease, or for or about any person having any infectious or contagious disease, or any material of which prior use has been made, unless all of said material has been thoroughly sterilized and disinfected by a reasonable process approved by the board of health of the city where the mattress is made, remade or renovated. The use of shoddy made from secondhand materials, jute, old comforts, pads or mattresses in the manufacture of new mattresses to be offered for sale as new mattresses is prohibited.

History. 2062d-2.

214.300. Labels on mattresses — Regulation of.

  1. There shall be securely sewed upon the outside of each mattress manufactured, or offered for sale, a muslin, paper or linen label or tag, upon which shall be legibly written or printed a description of the material used as the filling of the mattress.
  2. If all the material used in the manufacture of the mattress has not been previously used, the words “manufactured of new material” shall appear upon the label or tag, together with the name and address of the maker.
  3. Any mattress made from any material previously used shall have stamped or printed upon the tag attached thereto, in type not smaller than twenty-point, the words “secondhand material.”
  4. If labeled felt or felted cotton, it is understood that the cotton or material has all been carded in layers or sheets by a Garnett or cotton felting machine.
  5. In the description upon the label or tag of the material used as the filling of any mattress, no term or designation likely to mislead shall be used.
  6. No person except a purchaser at retail shall remove, deface or alter, or attempt or cause the removal, defacement or alteration of any mark or statement placed upon any mattress under the provisions of this section.

History. 2062d-3, 2062d-4, 2062d-5, 2062d-6.

214.310. Enforcement of mattress law.

  1. Any police officer or member of any municipal board of health, or other city official, who has reason to believe that the provisions of KRS 214.280 to 214.300 have been or are being violated, shall give notice to the Cabinet for Health and Family Services.
  2. Any individual who has reason to believe that the provisions of KRS 214.280 to 214.300 have been or are being violated may present the relevant facts to the board of health or any of its deputies. It shall then be the duty of the board of health to make an investigation of the facts, and if the board is of the opinion that there is or has been a violation it shall prosecute the person guilty thereof.
  3. Any individual may institute proceedings to enforce KRS 214.280 to 214.300 and to punish violations of their provisions.

History. 2062d-7: amende. Acts 1974, ch. 74, Art. VI, § 107(1), (11); 1998, ch. 426, § 403, effective July 15, 1998; 2005, ch. 99, § 456, effective June 20, 2005.

214.320. Pesthouse not to be located within one mile of city. [Repealed.]

Compiler’s Notes.

This section (3909) was repealed by Acts 1968, ch. 87, § 8.

214.330. Declaration of legislative intent relating to control of communicable tuberculosis. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 223, § 1, effective June 17, 1954) was repealed by Acts 1970, ch. 133, § 11.

214.340. Definitions for KRS 214.330 to 215.370 and subsections (13) and (14) of KRS 214.990. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 223, § 2, effective June 17, 1954) was repealed by Acts 1970, ch. 133, § 11.

214.350. Duties of person having communicable tuberculosis. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 223, § 3, effective June 17, 1954) was repealed by Acts 1970, ch. 133, § 11.

214.360. Examination of person failing to comply with KRS 214.350. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 223, § 4, effective June 17, 1954) was repealed by Acts 1970, ch. 133, § 11.

214.370. Legal counsel in enforcement proceedings. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 223, § 6, effective June 17, 1954) was repealed by Acts 1970, ch. 133, § 11.

Confidentiality of Sexually Transmitted Disease Control Records

214.400. Short title.

KRS 214.410 , 214.420 and 214.990(6) may be cited as the “Kentucky Sexually Transmitted Disease Control Confidentiality Act of 1986.”

History. Enact. Acts 1986, ch. 294, § 1, effective July 15, 1986.

214.410. Definitions.

  1. “Cabinet” means the Cabinet for Health and Family Services; and
  2. “Sexually transmitted disease” means syphilis, gonorrhea, chancroid, granuloma inguinale, genital herpes, nongonococcal urethritis, mucopurulent cervicitis, acquired immunodeficiency syndrome (AIDS), human immunodeficiency virus (HIV) infection, chlamydia trachomatis infections, and any other sexually transmitted disease designated by the cabinet under the provisions of KRS Chapter 13A.

History. Enact. Acts 1986, ch. 294, § 2, effective July 15, 1986; 1990, ch. 443, § 43, effective July 13, 1990; 1998, ch. 426, § 404, effective July 15, 1998; 2005, ch. 99, § 457, effective June 20, 2005.

214.420. Records declared confidential — Application.

  1. The General Assembly hereby declares that confidentiality is essential for the proper administration and operation of sexually transmitted disease control activities in this state and that the principle of confidentiality must remain inviolate.
  2. All information, records, and reports in the possession of local health departments or the Cabinet for Health and Family Services and which concern persons infected with or suspected of being infected with or tested for or identified in an epidemiologic investigation for sexually transmitted disease are hereby declared to be strictly confidential and only personnel of local health departments and the Cabinet for Health and Family Services who are assigned to sexually transmitted disease control activities shall have access to such information, records, and reports.
  3. Nothing in this section shall be construed as preventing:
    1. The release of medical information to the physician retained by the person infected with or suspected of being infected with a sexually transmitted disease;
    2. The release of medical or epidemiological data or information for statistical purposes in a manner so that no individual person can be identified;
    3. The release of medical information with the written consent of all persons identified in the information to be released;
    4. The release of medical or epidemiological information necessary to enforce the provision of the rules and regulations of the Cabinet for Health and Family Services, issued pursuant to KRS Chapter 13A, relating to the control and treatment of sexually transmitted disease; and
    5. The release of medical information made to medical personnel in a medical emergency to the extent necessary to protect the health or life of the named party.

History. Enact. Acts 1986, ch. 294, § 3, effective July 15, 1986; 1998, ch. 426, § 405, effective July 15, 1998; 2005, ch. 99, § 458, effective June 20, 2005.

Opinions of Attorney General.

It would be constitutionally permissible for a court to order a compulsory AIDS test if there is probable cause to believe the arrestee suffers from that disease and if it further appears that a government agent is, has been, or will be at risk. Such a government agent would be entitled to learn of the test results in accordance with subdivision 3(e) of this section, which carves an exception from the general confidentiality requirement in the event of an emergency. OAG 89-37 .

214.430. Expedited partner therapy for sexually transmitted infections.

  1. For the purposes of this section, unless the context requires otherwise:
    1. “Dispense” means to deliver a drug or device to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the packaging, labeling, or compounding necessary to prepare the substance for that delivery;
    2. “Expedited partner therapy” means the prescribing or dispensing of antibiotic drugs to a practitioner’s diagnosed patient’s sexual partner or partners for the same disease without examination of that diagnosed patient’s partner or partners;
    3. “Legend drug” means any drug defined by the Federal Food, Drug, and Cosmetic Act, as amended, and under which definition its label is required to bear the statement, “Caution: Federal law prohibits dispensing without prescription.”;
    4. “Practitioner” means medical or osteopathic physicians who are licensed under the professional licensing laws of Kentucky to prescribe and administer drugs and devices. “Practitioner” includes advanced practice registered nurses as authorized in KRS 314.011 and 314.042 and physician assistants when administering or prescribing pharmaceutical agents as authorized in KRS 311.858 ; and
    5. “Prescription” means a written or oral order for a drug or medicine, or combination or mixture of drugs or medicines, or proprietary preparation, that is signed, given, or authorized by a practitioner, and intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in humans.
  2. Notwithstanding any other provision of law, a practitioner who is licensed to diagnose and prescribe drugs for a sexually transmitted gonorrhea or chlamydia infection who diagnoses a sexually transmitted gonorrhea or chlamydia infection in a patient may provide expedited partner therapy for a sexually transmitted gonorrhea or chlamydia infection to that patient’s sexual partner or partners.
  3. A practitioner that provides expedited partner therapy shall:
    1. Adhere to prescribing and dispensing standards for expedited partner therapy pursuant to the current United States Centers for Disease Control and Prevention Sexually Transmitted Diseases Treatment Guidelines for expedited partner therapy; and
    2. Utilize forms established by the Department for Public Health for patients and their sexual partner or partners explaining expedited partner therapy.
  4. A practitioner who reasonably and in good faith renders expedited partner therapy in accordance with this section and administrative regulations promulgated by the board having professional jurisdiction shall not be subject to civil or criminal liability or be deemed to have engaged in unprofessional conduct.

HISTORY: 2019 ch. 175, § 1, effective June 27, 2019.

Blood Supply Screening

214.450. Definitions for KRS 214.452 to 214.466.

As used in KRS 214.452 to 214.466 , unless the context otherwise requires:

  1. “Blood” means any blood, blood product, blood component, or blood derivative including plasma.
  2. “Blood establishment” means a place of business under one (1) management at one (1) general physical location which engages in the collection, preparation, processing, labeling, packaging, and dispensing of blood to any health care facility, health service, or health care provider and which is licensed by the United States Food and Drug Administration. Blood establishment does not include autologous blood donation programs permitted under KRS 214.456 .
  3. “Blood-borne communicable disease” means any of those diseases which are specifically so defined and set forth in administrative regulation promulgated by the United States Food and Drug Administration.
  4. “Health facility” means any health facility set forth under KRS 216B.015 which provides for the transfusion of blood into a living human body.
  5. “Health care provider” means any person licensed or certified under the laws of the Commonwealth as a dentist, physician, osteopath, registered nurse, practical nurse, paramedic, emergency medical technician, or physician assistant.
  6. “Health service” means any health service as set forth under KRS 216B.015 and which provides for the transfusion of blood into a living human body.
  7. “Transfuse” means to transfer blood from one (1) person to another.
  8. “Donor” means either a paid or volunteer donor of blood.
  9. “Untested blood” means blood that has not been tested or blood for which test results have not yet been returned.

History. Enact. Acts 1988, ch. 76, § 1, effective July 15, 1988; 1990, ch. 499, § 14, effective July 13, 1990; 1994, ch. 325, § 1, effective July 15, 1994; 1994, ch. 512, Part 12, § 86, effective July 15, 1994; 1998, ch. 582, § 6, effective July 15, 1998.

214.452. Blood establishments to be federally licensed — Inspection fees — Donor conditions — Forms — Sign posting.

The following policies shall apply to blood establishments and to donors of blood:

  1. All blood establishments within the Commonwealth shall be licensed by the United States Food and Drug Administration and remain in compliance with all applicable federal regulations. The Cabinet for Health and Family Services shall, under administrative regulations promulgated pursuant to KRS Chapter 13A, establish fees necessary to cover the cost of and adhere to a schedule for regular inspection, by the Office of the Inspector General of the Cabinet for Health and Family Services, of all blood establishments within the Commonwealth to ascertain whether each blood establishment is licensed and in compliance with KRS 214.450 to 214.464 and KRS 214.468 . The Office of the Inspector General shall commence its inspection program of blood establishments no later than September 1, 1994.
  2. All blood establishments shall test blood for the human immunodeficiency virus and for any known causative agent for any blood-borne communicable disease, using tests approved and required, for purposes of blood donation, by the United States Food and Drug Administration.
  3. It shall be the duty of the administrator of any blood establishment which collects blood for the purpose of distributing to another health service, health facility, or health-care provider the blood for transfusion to:
    1. Secure donor consent and a signed written risk factor history and donor consent form for each potential paid or volunteer donor for the purpose of determining if the potential donor is at high risk for infection with the human immunodeficiency virus, or has tested confirmatory positive for infection with the human immunodeficiency virus; or has acquired immune deficiency syndrome; or has tested confirmatory positive for infection with any causative agent for acquired immune deficiency syndrome recognized by the United States Centers for Disease Control; or has a blood-borne communicable disease;
    2. Provide a means for a potential donor to self-elect not to donate blood;
    3. Refuse donation or sale of blood by persons at high risk for infection with the human immunodeficiency virus, or who have been medically diagnosed as having acquired immune deficiency syndrome, or who have tested confirmatory positive for infection with the human immunodeficiency virus, or who have a blood-borne communicable disease;
    4. Post a sign in the blood establishment which is visible to all potential donors and which states: “Persons with acquired immune deficiency syndrome (AIDS), or who have tested confirmatory positive for infection with the human immunodeficiency virus (HIV), or who have a blood-borne communicable disease or who have one (1) or more risk factors for the human immunodeficiency virus as determined by the United States Centers for Disease Control, are prohibited by law from donating or selling blood. Persons violating the law are guilty of a Class D felony. ASK STAFF OF THIS BLOOD ESTABLISHMENT.”
  4. The provisions of this section shall not be construed to impose requirements which are in conflict with donor eligibility requirements set out in United States Food and Drug Administration or American Association of Blood Banks standards.

HISTORY: Enact. Acts 1988, ch. 76, § 2, effective July 15, 1988; 1994, ch. 325, § 2, effective July 15, 1994; 1998, ch. 426, § 406, effective July 15, 1998; 2005, ch. 99, § 459, effective June 20, 2005; 2017 ch. 80, § 45, effective June 29, 2017.

Legislative Research Commission Note.

We have been advised by the U.S. Food and Drug Administration that it can only license those establishments engaged in interstate commerce.

Research References and Practice Aids

Northern Kentucky Law Review.

Braden, Aids: Dealing With the Plague, 19 N. Ky. L. Rev. 277 (1992).

214.454. Donations — Conditions.

  1. No person shall donate blood if the person is at high risk for infection with the human immunodeficiency virus, or has acquired immunodeficiency syndrome, or has tested confirmatory positive for the human immunodeficiency virus or any other known causative agent of a blood-borne communicable disease.
  2. No person shall give false information to the staff of a blood establishment regarding any item of the person’s personal history which would affect the person’s suitability as a donor.

History. Enact. Acts 1988, ch. 76, § 3, effective July 15, 1988; 1994, ch. 325, § 3, effective July 15, 1994.

Research References and Practice Aids

Northern Kentucky Law Review.

Braden, Aids: Dealing With the Plague, 19 N. Ky. L. Rev. 277 (1992).

214.456. Autologous or directed donations — Surcharges — Conditions.

The following policies shall apply to autologous and directed blood donations:

  1. Any otherwise qualified donor who wishes to direct a donation of blood to that person or to another particular individual may do so. The surcharge for any autologous or directed donation of blood shall not exceed twenty percent (20%) of the charge for a regular unit of blood.
  2. If the donation is to another particular individual, the requirements of KRS 214.454 shall be met if the recipient and the recipient’s attending physician have requested the donation.
  3. Blood collected as a directed donation may be used for someone other than, or in addition to, the designated recipient if the donor’s blood is not compatible with that of the designated recipient or if any part of the donation is not needed by the designated recipient.
  4. Each blood establishment shall advise prospective donors of the opportunity for autologous and directed donations and of the provisions of this section and of KRS 214.452 to 214.466 .
  5. Autologous blood donation programs shall be exempt from KRS 214.454 .

History. Enact. Acts 1988, ch. 76, § 4, effective July 15, 1988; 1994, ch. 325, § 4, effective July 15, 1994.

214.458. Blood for transfusion — Labeling — Data retention — Destruction.

  1. Each unit of blood collected by a blood establishment for transfusion shall be affixed with the United States Food and Drug Administration required label which includes a donor identification number through which the following information can be obtained:
    1. Date the blood was collected;
    2. Name of blood establishment;
    3. Nonidentifying code representing the name of the blood donor;
    4. A blood establishment serial number for the blood;
    5. The date of laboratory testing of the blood;
    6. The name of the person and laboratory testing the blood;
    7. The laboratory test results.
  2. Each unit of blood received by a blood establishment or health facility within the Commonwealth from an out-of-state blood establishment shall contain a label in accordance with the provisions of subsection (1) of this section and the blood establishment or health facility shall either test the blood in accordance with the requirements for blood establishments within the Commonwealth under the provisions of KRS 214.452(2) or may accept documented evidence of the test results as are required under subsection (1) of this section for blood collected within the Commonwealth.
  3. Each laboratory testing blood for transfusion shall maintain for ten (10) years from the date of testing, and each blood establishment shall maintain for ten (10) years from the date of collection, a list containing the information set forth in subsection (1) of this section.
  4. No blood may be transfused into any patient in any health facility or health service or by any health care provider unless the unit of blood has affixed to it the label as required under this section and the blood has tested negative for the human immunodeficiency virus or any causative agent of AIDS, or any blood-borne communicable disease as provided under KRS 214.452 . When a unit of blood is transfused, a label containing the donor identification number required under this section shall be removed from the unit and affixed to the patient’s medical chart or the blood donor identification number for the unit of blood shall be recorded in the patient’s medical chart.
  5. Any unit of blood not containing the label required under this section shall be destroyed by the health facility, health service, or health care provider.
  6. Any unit of blood testing confirmatory positive for an agent of a blood-borne communicable disease and in the possession of a health facility, health service, or health care provider may be donated to educational or scientific research institutions for the purpose of scientific research only and not for transfusion.

History. Enact. Acts 1988, ch. 76, § 5, effective July 15, 1988; 1994, ch. 325, § 6, effective July 15, 1994.

214.460. Identification of reportable communicable or sexually transmitted diseases set forth in administrative regulations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 76, § 6) was repealed by Acts 1994, ch. 325, § 8.

214.462. Donor consent and risk factor history forms, standardization. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 76, § 7) was repealed by Acts 1994, ch. 325, § 8.

214.464. Transfusion of untested blood — Conditions — Patient notification.

    1. Untested blood may be transfused only in an emergency situation in which the attending physician determines a patient is in imminent danger of death or serious physical injury and no tested and labeled blood as set forth under KRS 214.458 is readily available to alleviate the emergency situation; provided, however, that the attending physician shall obtain specific prior consent for the transfusion from the patient in the emergency situation or if the patient’s condition renders the patient incapable of giving consent, seek from the next of kin of the patient, if available, prior informed consent to transfuse any untested blood. For purposes of this section, the patient’s “next of kin” means, in the following order; (1) (a) Untested blood may be transfused only in an emergency situation in which the attending physician determines a patient is in imminent danger of death or serious physical injury and no tested and labeled blood as set forth under KRS 214.458 is readily available to alleviate the emergency situation; provided, however, that the attending physician shall obtain specific prior consent for the transfusion from the patient in the emergency situation or if the patient’s condition renders the patient incapable of giving consent, seek from the next of kin of the patient, if available, prior informed consent to transfuse any untested blood. For purposes of this section, the patient’s “next of kin” means, in the following order;
      1. The spouse of the patient;
      2. If there is none, then the mother or father of the patient;
      3. If there is none, then any adult son or daughter of the patient; or
      4. If there is none, then any brother or sister of the patient.
    2. Physical evidence of consent shall become a part of the patient’s permanent medical record.
  1. Blood establishments may release untested blood, collected under standards set forth in KRS 214.452 , at the request of a physician, or health facility, or health service in an emergency as provided under this section. If blood has not been tested, the test shall be performed as soon after the transfusion as possible. If the blood subsequently tests positive for any blood-borne communicable disease, the patient’s attending physician shall be immediately notified. The attending physician shall, in turn, notify the patient of the test results. The patient or next of kin shall indicate notification of receipt of the test results and any offer of treatment or referral to another health-care provider on a form provided by the health facility or health service and approved by the Cabinet for Health and Family Services.

History. Enact. Acts 1988, ch. 76, § 8, effective July 15, 1988; 1994, ch. 325, § 5, effective July 15, 1994; 1998, ch. 426, § 407, effective July 15, 1998; 2005, ch. 99, § 460, effective June 20, 2005.

214.466. Health care provider and facility civil liability exemption.

No health facility or physician or health care provider transfusing untested blood into a patient during an emergency situation if the blood is required to save the life of the patient shall be liable in civil damages or criminally, provided the provisions of KRS 214.464 are met.

History. Enact. Acts 1988, ch. 76, § 9, effective July 15, 1988.

214.468. Donation of blood to nonprofit voluntary program by person age seventeen or older — Criteria for donation by person sixteen years of age.

  1. Any person seventeen (17) years of age or older may donate blood in a voluntary blood program, which is not operated for profit, without consent of the person’s parent or legally authorized representative.
  2. Any person sixteen (16) years of age and weighing at least one hundred ten (110) pounds may donate blood in a voluntary blood program, which is not operated for profit, with the written consent of the person’s parent or legally authorized representative.
  3. The parent or legally authorized representative of a person who donates blood pursuant to subsection (1) or (2) of this section shall not be held financially responsible for any medical complications arising from the blood donation.
  4. Before soliciting blood donations from students in high schools, joint vocational schools, or technical schools, a blood program, in cooperation with school authorities, shall make reasonable efforts to notify the parents or legally authorized representatives of the students that the students will be requested to donate blood.

History. Enact. Acts 1992, ch. 70, § 1, effective July 14, 1992; 1994, ch. 325, § 7, effective July 15, 1994; 2008, ch. 9, § 1, effective July 15, 2008.

Cancer

214.500. State policy for cancer prevention and reduction. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 176, § 1) was repealed by Acts 1990, ch. 318, § 6.

214.510. Kentucky cancer commission created — Members — Expenses — Meetings — Staff. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 176, § 2; 1980, ch. 255, § 1) was repealed by Acts 1990, ch. 318, § 6.

214.520. Powers and duties of commission. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 176, § 3) was repealed by Acts 1990, ch. 318, § 6.

214.530. Cancer commission trust fund — Use — Nonlapsing of surplus funds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 176, § 4) was repealed by Acts 1990, ch. 318, § 6.

Colon Cancer Screening Program

214.540. Definitions for KRS 214.540 to 214.544 — Establishment and limitation of Colon Cancer Screening Program.

  1. As used in KRS 214.540 to 214.544 :
    1. “Department” means the Department for Public Health in the Cabinet for Health and Family Services; and
    2. “Program” means the Colon Cancer Screening Program.
  2. The Colon Cancer Screening Program is hereby established for the purposes of:
    1. Increasing colon cancer screening;
    2. Reducing morbidity and mortality from colon cancer; and
    3. Reducing the cost of treating colon cancer among citizens of the Commonwealth.
  3. The provisions of KRS 214.540 to 214.544 shall be limited to the amount of appropriations to the department for the Colon Cancer Screening Program.

History. Enact. Acts 2008, ch. 126, § 1, effective July 15, 2008.

214.540. Definitions for KRS 214.540 to 214.544 — Establishment and limitation of Colon Cancer Screening Program.

  1. As used in KRS 214.540 to 214.544 :
    1. “Department” means the Department for Public Health in the Cabinet for Health and Family Services; and
    2. “Program” means the Colon Cancer Screening and Prevention Program.
  2. The Colon Cancer Screening and Prevention Program is hereby established for the purposes of:
    1. Increasing colon cancer screening;
    2. Reducing morbidity and mortality from colon cancer; and
    3. Reducing the cost of treating colon cancer among citizens of the Commonwealth.
  3. The provisions of KRS 214.540 to 214.544 shall be limited to the amount of appropriations to the department for the Colon Cancer Screening and Prevention Program.

HISTORY: Enact. Acts 2008, ch. 126, § 1, effective July 15, 2008; 2021 ch. 130, § 1.

214.542. Eligibility for Colon Cancer Screening Program — Services provided — Income-based fee schedule — Funding — Affordability — Data collection — Administrative regulations.

  1. The program shall provide colon cancer screening for uninsured and underinsured individuals who are eligible based upon the current American Cancer Society Colorectal Cancer Screening Guidelines.
  2. Services provided under the program may be undertaken by private contract for services or operated by the department. The program may also provide referral, examination, and rescreening services for the benefit of uninsured and underinsured individuals for whom further examination or treatment is indicated by the colon cancer screening. Colon cancer treatment and surveillance may be provided to uninsured and underinsured individuals if program funding is available.
  3. The department shall adopt a schedule of income-based fees that may be charged for colon cancer screening, examination, surveillance, treatment, and rescreening for uninsured and underinsured individuals. The schedule adopted shall be such that the screening, examination, and rescreening is affordable and accessible to the largest possible number of uninsured and underinsured individuals throughout the Commonwealth.
  4. The department may accept any grant or award of funds from federal or private sources for carrying out the provisions of this section.
  5. The department shall establish a data collection system including the number of individuals screened, the demographic characteristics of the individuals screened, and the types of colon cancer screening tests, examinations, surveillance, treatments, and rescreening services performed under the program.
  6. The department shall promulgate administrative regulations to implement the provisions of this section, including:
    1. A schedule of income-based fees that may be charged for colon cancer screening, examination, surveillance, treatment, and rescreening as required by subsection (3) of this section; and
    2. A data collection system as required by subsection (5) of this section.

History. Enact. Acts 2008, ch. 126, § 2, effective July 15, 2008; 2010, ch. 168, § 1, effective July 15, 2010; 2016 ch. 42, § 1, effective April 6, 2016.

Legislative Research Commission Note.

(7/15/2010) 2010 Ky. Acts ch. 168, sec. 3 provides that the addition of subsection (3) of this statute in Section 1 of that Act shall be in memory of Richard “Butch” Stewart.

214.543. Kentucky Colon Cancer Screening Program fund.

    1. There is hereby created a restricted fund to be known as the Kentucky Colon Cancer Screening Program fund. (1) (a) There is hereby created a restricted fund to be known as the Kentucky Colon Cancer Screening Program fund.
    2. The fund shall be administered by the Finance and Administration Cabinet.
    3. The fund shall include moneys appropriated by the General Assembly for the purpose of the Colon Cancer Screening Program and moneys collected under KRS 214.542 .
  1. Moneys in the fund shall be used by the department to administer KRS 214.540 to 214.544 .
  2. Notwithstanding KRS 45.229 , any moneys remaining in the fund at the close of the fiscal year shall not lapse but shall be carried forward into the succeeding fiscal year to be used in accordance with subsection (2) of this section.
  3. Interest earned on any moneys in the fund shall accrue to the fund.
  4. Moneys in the fund are hereby appropriated for the purposes set forth in KRS 214.540 to 214.544 .

History. Enact. Acts 2010, ch. 168, § 2, effective July 15, 2010.

Legislative Research Commission Note.

(7/15/2010). 2010 Ky. Acts ch. 168, sec. 3 provides that the creation of this statute in Section 2 of that Act shall be in memory of Richard “Butch” Stewart.

214.543. Kentucky Colon Cancer Screening Program fund.

    1. There is hereby created a restricted fund to be known as the Kentucky Colon Cancer Screening and Prevention Program fund. (1) (a) There is hereby created a restricted fund to be known as the Kentucky Colon Cancer Screening and Prevention Program fund.
    2. The fund shall be administered by the Finance and Administration Cabinet.
    3. The fund shall include moneys:
      1. Appropriated by the General Assembly for the purpose of the Colon Cancer Screening and Prevention Program;
      2. Collected under KRS 214.542 ; and
      3. Distributed by the Transportation Cabinet from sales of special colon cancer prevention license plates.
  1. Moneys in the fund shall be used by the department to administer KRS 214.540 to 214.544 .
  2. Notwithstanding KRS 45.229 , any moneys remaining in the fund at the close of the fiscal year shall not lapse but shall be carried forward into the succeeding fiscal year to be used solely for the purposes established in subsection (2) of this section.
  3. Interest earned on any moneys in the fund shall accrue to the fund.
  4. Moneys in the fund are hereby appropriated solely for the purposes set forth in KRS 214.540 to 214.544 .

HISTORY: Enact. Acts 2010, ch. 168, § 2, effective July 15, 2010; 2021 ch. 130, § 2.

214.544. Colon Cancer Screening Advisory Committee — Membership — Duties — Annual report — Colon cancer screening, education, and outreach programs.

  1. A Colon Cancer Screening Advisory Committee shall be established within the Kentucky Cancer Consortium. The advisory committee shall include:
    1. One (1) appointee appointed by the Speaker of the House;
    2. One (1) appointee appointed by the President of the Senate;
    3. The deputy commissioner of the Department for Public Health;
    4. Two (2) at-large members appointed by the Governor;
    5. The director of health initiatives for the mid-south division of the American Cancer Society;
    6. The director of the Kentucky Cancer Program at the University of Kentucky;
    7. The director of the Kentucky Cancer Program at the University of Louisville;
    8. The director of the Kentucky Cancer Registry;
    9. The director of the Colon Cancer Prevention Project;
    10. The chair of Kentucky African Americans Against Cancer; and
    11. The director of the Kentucky Cancer Consortium.

      Members of the advisory committee shall be appointed for a term of four (4) years.

    1. Members appointed under subsection (1)(a) to (d) of this section shall be appointed as follows: (2) (a) Members appointed under subsection (1)(a) to (d) of this section shall be appointed as follows:
      1. Members shall be appointed for a term of four (4) years, except as provided in subparagraph 2. of this paragraph;
      2. The initial appointments shall be for a period of two (2) years; thereafter, the appointments shall be for a term of four (4) years; and
      3. Members shall not serve more than two (2) terms of four (4) years.
    2. Members serving under subsection (1)(e) to (k) of this section shall serve by virtue of their positions and shall not be subject to term limits.
  2. The chair of the advisory committee shall be elected from the membership of the advisory committee to serve for a two (2) year term. A member of the advisory committee may designate an alternate to attend meetings in his or her place.
  3. The advisory committee may add members from other organizations as deemed appropriate.
  4. The advisory committee shall provide recommendations for the overall implementation and conduct of the Colon Cancer Screening Program.
  5. The advisory committee shall establish and provide oversight for a colon cancer screening public awareness campaign. The Cabinet for Health and Family Services shall contract with the Kentucky Cancer Consortium at the University of Kentucky to provide the required support. The amount of the contract shall not be included in the base budget of the university as used by the Council on Postsecondary Education in determining the funding formula for the university.
  6. The Colon Cancer Screening Advisory Committee shall provide an annual report on implementation and outcomes from the Colon Cancer Screening Program and recommendations to the Legislative Research Commission, the Interim Joint Committee on Health and Welfare, the Interim Joint Committee on Appropriations and Revenue, the Governor, the secretary of the Cabinet for Health and Family Services, and the commissioner of the Department for Public Health.
  7. The Kentucky Cancer Program, jointly administered by the University of Kentucky and the University of Louisville, shall establish a colon cancer screening, education, and outreach program in each of the state area development districts. The colon cancer screening, education, and outreach program shall focus on individuals who lack access to colon cancer screening. The Cabinet for Health and Family Services shall contract with the University of Louisville and the University of Kentucky to provide the required support. The amount of the contract shall not be included in the base budgets of the universities as used by the Council on Postsecondary Education in determining the funding formula for the universities.

History. Enact. Acts 2008, ch. 126, § 3, effective July 15, 2008.

Legislative Research Commission Note.

(7/15/2008). There are two incorrect internal references in subsection (2) of this statute that have not been corrected in codification because they are drafting errors, not manifest clerical or typographical errors correctable by the Reviser of Statutes under KRS 7.136(1)(h). However, the reference in subsection (2)(a) to “subsection (1) of this section” should have been drafted as “subsection (1)(a), (c), and (d) of this section” since the deputy commissioner of the Department for Public Health referenced in subsection (1)(c) of this statute serves as an ex officio, not appointed, member of the advisory committee. Likewise, the reference in subsection (2)(b) of this statute to “subsection (1)(e) to (k) of this section” should have been drafted as “subsection (1)(c) and (e) to (k) of this section.”

214.544. Colon Cancer Screening Advisory Committee — Membership — Duties — Annual report — Colon cancer screening, education, and outreach programs.

  1. A Colon Cancer Screening and Prevention Advisory Committee shall be established. The advisory committee shall include:
    1. One (1) member of the House of Representatives who shall be appointed by the Speaker of the House;
    2. One (1) member of the Senate who shall be appointed by the President of the Senate;
    3. The deputy commissioner of the Department for Public Health;
    4. The commissioner of the Department of Insurance, or his or her designee;
    5. The commissioner of the Department for Medicaid Services, or his or her designee;
    6. Two (2) at-large members who shall be appointed by the Governor;
    7. One (1) member who shall be appointed by the Governor from a list of three (3) names provided by the American Cancer Society;
    8. The director of the Kentucky Cancer Program at the University of Kentucky;
    9. The director of the Kentucky Cancer Program at the University of Louisville;
    10. The director of the Kentucky Cancer Registry;
    11. The director of the Colon Cancer Prevention Project;
    12. The chair of Kentucky African Americans Against Cancer; and
    13. The director of the Kentucky Cancer Consortium. Members of the advisory committee shall be appointed for a term of four (4) years.
    1. Members appointed under subsection (1)(a) to (g) of this section shall be appointed as follows: (2) (a) Members appointed under subsection (1)(a) to (g) of this section shall be appointed as follows:
      1. Members shall be appointed for a term of four (4) years, except as provided in subparagraph 2. of this paragraph;
      2. The initial appointments shall be for a period of two (2) years; thereafter, the appointments shall be for a term of four (4) years; and
      3. Members shall not serve more than two (2) terms of four (4) years.
    2. Members serving under subsection (1)(h) to (m) of this section shall serve by virtue of their positions and shall not be subject to term limits.
  2. The chair of the advisory committee shall be elected from the membership of the advisory committee to serve for a two (2) year term. A member of the advisory committee may designate an alternate to attend meetings in his or her place.
  3. The advisory committee may add members from other organizations as deemed appropriate.
  4. The advisory committee shall provide recommendations for the overall implementation and conduct of the Colon Cancer Screening and Prevention Program.
  5. The advisory committee shall establish and provide oversight for a colon cancer screening public awareness campaign. The Cabinet for Health and Family Services shall contract with the Kentucky Cancer Consortium at the University of Kentucky to provide the required support. The amount of the contract shall not be included in the base budget of the university as used by the Council on Postsecondary Education in determining the funding formula for the university.
  6. The Colon Cancer Screening and Prevention Advisory Committee shall provide an annual report on implementation and outcomes from the Colon Cancer Screening and Prevention Program and recommendations to the Legislative Research Commission, the Interim Joint Committee on Health, Welfare, and Family Services, the Interim Joint Committee on Appropriations and Revenue, the Governor, the secretary of the Cabinet for Health and Family Services, and the commissioner of the Department for Public Health.
  7. The Kentucky Cancer Program, jointly administered by the University of Kentucky and the University of Louisville, shall establish a colon cancer screening, education, and outreach program in each of the state area development districts. The colon cancer screening, education, and outreach program shall focus on individuals who lack access to colon cancer screening. The Cabinet for Health and Family Services shall contract with the University of Louisville and the University of Kentucky to provide the required support. The amount of the contract shall not be included in the base budgets of the universities as used by the Council on Postsecondary Education in determining the funding formula for the universities.

HISTORY: Enact. Acts 2008, ch. 126, § 3, effective July 15, 2008; 2021 ch. 130, § 3.

Breast Cancer Screening Program

214.550. Definitions for KRS 214.552 to 214.556.

As used in KRS 214.552 to 214.556 :

  1. “Department” means the Department for Public Health of the Cabinet for Health and Family Services.
  2. “Fund” means the breast cancer screening fund.
  3. “Screening” means the conduct of screening mammography for the purpose of ascertaining the existence of any physiological abnormality which might be indicative of the presence of disease.

History. Enact. Acts 1990, ch. 318, § 2, effective July 1, 1990; 1994, ch. 184, § 1, effective July 15, 1994; 1998, ch. 426, § 408, effective July 15, 1998; 2005, ch. 99, § 461, effective June 20, 2005.

214.552. Breast cancer screening fund.

There is hereby established within the department a breast cancer screening fund. Any funds appropriated by the General Assembly for the purpose of the Breast Cancer Screening Program and any gifts or federal grants shall be deposited in the State Treasury to the credit of a trust or agency fund to be used for the purposes of KRS 214.554 and shall not lapse.

History. Enact. Acts 1990, ch. 318, § 3, effective July 1, 1990; 1994, ch. 184, § 4, effective July 15, 1994.

214.554. Breast Cancer Screening Program — Data and analysis.

  1. There is established within the department a Breast Cancer Screening Program for the purposes of:
    1. Reducing morbidity and mortality from breast cancer in women through early detection and treatment; and
    2. Making breast cancer screening services of high quality and reasonable cost available to women of all income levels throughout the Commonwealth and to women whose economic circumstances or geographic location limits access to breast cancer screening facilities.
  2. Services provided under the Breast Cancer Screening Program may be undertaken by private contract for services or operated by the department and may include the purchase, maintenance, and staffing of a truck, a van, or any other vehicle suitably equipped to perform breast cancer screening. The program may also provide referral services for the benefit of women for whom further examination or treatment is indicated by the breast cancer screening.
  3. The department may adopt a schedule of income-based fees to be charged for the breast cancer screening. The schedule shall be determined to make screening available to the largest possible number of women throughout the Commonwealth. The department shall, where practical, collect any available insurance proceeds or other reimbursement payable on behalf of any recipient of a breast cancer screening under KRS 214.552 to 214.556 and may adjust the schedule of fees to reflect insurance contributions. All fees collected shall be credited to the fund.
  4. The department may accept any grant or award of funds from the federal government or private sources for carrying out the provisions of KRS 214.552 to 214.556 .
  5. The commissioner of the Department for Public Health shall provide data and analysis upon request on the:
    1. Implementation and outcome from the Breast Cancer Screening Program including, by geographic region, numbers of persons screened, numbers of cancers detected, referrals for treatment, and reductions in breast cancer morbidity and mortality;
    2. Development of quality assurance guidelines, including timetables, for breast cancer screening under this section, and monitoring of the manner and effect of implementation of those guidelines; and
    3. Funds appropriated, received, and spent for breast cancer control by fiscal year.

History. Enact. Acts 1990, ch. 318, § 4, effective July 1, 1990; 1994, ch. 184, § 2, effective July 15, 1994; 1998, ch. 95, § 1, effective July 15, 1998; 1998, ch. 426, § 409, effective July 15, 1998; 2003, ch. 48, § 1, effective June 24, 2003; 2005, ch. 99, § 462, effective June 20, 2005; 2012, ch. 158, § 48, effective July 12, 2012; 2017 ch. 80, § 46, effective June 29, 2017; 2020 ch. 36, § 34, effective July 15, 2020.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. I, A, 9, (1) at 855.

214.555. Recommendation of digital mammography including breast tomosynthesis — Notice to patient for whom mammogram demonstrates dense breast tissue — Expiration date of notice requirement.

  1. Physicians are encouraged to recommend digital mammography including breast tomosynthesis when writing orders for mammograms. The term “breast tomosynthesis” means a radiologic procedure that involves the acquisition of projection images over the stationary breast to produce cross-sectional digital three-dimensional images of the breast.
  2. If a patient’s X-ray mammogram demonstrates dense breast tissue, a person who provided the X-ray mammography services in the Commonwealth shall provide notification to the patient that includes but is not limited to the following information in the summary of the written report of the results sent directly to a patient:

    “Your X-ray mammogram shows that your breast tissue is dense. Dense breast tissue is common among women and is not abnormal. However, women with dense breast tissue may have a slightly increased risk for developing breast cancer. Dense breast tissue may also make it more difficult to detect an early breast cancer on your X-ray mammogram. At this time, there are no specific recommendations for additional screening or other measures related to having dense breast tissue. However, you may want to talk to your doctor about other ways that you might be able to reduce your risk of breast cancer. A report of your results was sent to your ordering physician. If you are self-referred, a report of your results was sent to you in addition to this summary.”

  3. As used in this section, “dense breast tissue” means heterogeneously or extremely dense breast tissue as defined in nationally recognized guidelines or systems for breast imaging reporting of mammography screening, including but not limited to the breast imaging reporting and data system established by the American College of Radiology. If, after June 29, 2017, new terms are defined in revised guidelines or systems for breast imaging reporting of mammography screening and the Department for Public Health determines that those new terms are more appropriate for the purposes of the information required to be provided under this section, the Department for Public Health may update the definition of dense breast tissue under this subsection to use those new terms by administrative regulation.
  4. Recognizing the continuous improvements in patient outcomes that are reflective of ongoing advances in evidence-based medical practices, expansive and emerging medical research, and evolving innovations in medical technology, subsection (2) of this section shall be in effect until January 1, 2021, unless the General Assembly takes action to extend this expiration date.

HISTORY: 2017 ch. 183, § 1, effective June 29, 2017.

214.555. Recommendation of digital mammography including breast tomosynthesis — Notice to patient for whom mammogram demonstrates dense breast tissue — Expiration date of notice requirement.

  1. Physicians are encouraged to recommend digital mammography including breast tomosynthesis when writing orders for mammograms. The term “breast tomosynthesis” means a radiologic procedure that involves the acquisition of projection images over the stationary breast to produce cross-sectional digital three-dimensional images of the breast.
  2. If a patient’s X-ray mammogram demonstrates dense breast tissue, a person who provided the X-ray mammography services in the Commonwealth shall provide notification to the patient that includes but is not limited to the following information in the summary of the written report of the results sent directly to a patient:

    “Your X-ray mammogram shows that your breast tissue is dense. Dense breast tissue is common among women and is not abnormal. However, women with dense breast tissue may have a slightly increased risk for developing breast cancer. Dense breast tissue may also make it more difficult to detect an early breast cancer on your X-ray mammogram. At this time, there are no specific recommendations for additional screening or other measures related to having dense breast tissue. However, you may want to talk to your doctor about other ways that you might be able to reduce your risk of breast cancer. A report of your results was sent to your ordering physician. If you are self-referred, a report of your results was sent to you in addition to this summary.”

  3. As used in this section, “dense breast tissue” means heterogeneously or extremely dense breast tissue as defined in nationally recognized guidelines or systems for breast imaging reporting of mammography screening, including but not limited to the breast imaging reporting and data system established by the American College of Radiology. If, after June 29, 2017, new terms are defined in revised guidelines or systems for breast imaging reporting of mammography screening and the Department for Public Health determines that those new terms are more appropriate for the purposes of the information required to be provided under this section, the Department for Public Health may update the definition of dense breast tissue under this subsection to use those new terms by administrative regulation.
  4. Recognizing the continuous improvements in patient outcomes that are reflective of ongoing advances in evidence-based medical practices, expansive and emerging medical research, and evolving innovations in medical technology, subsection (2) of this section shall be in effect until January 1, 2025, unless the General Assembly takes action to extend this expiration date.

HISTORY: 2017 ch. 183, § 1, effective June 29, 2017; 2021 ch. 133, § 2.

214.556. Kentucky Cancer Registry — Cancer patient data management system.

  1. There is hereby established within the Kentucky cancer program the Kentucky Cancer Registry and the cancer patient data management system for the purpose of providing accurate and up-to-date information about cancer in Kentucky and facilitating the evaluation and improvement of cancer prevention, screening, diagnosis, therapy, rehabilitation, and community care activities for citizens of the Commonwealth. The cancer patient data management system shall be administered by the Lucille Parker Markey Cancer Center.
  2. Each licensed health facility which provides diagnostic services, or diagnostic services and treatment, or treatment to cancer patients shall report to the Kentucky Cancer Registry, through the cancer patient data management system and in a format prescribed by the Kentucky Cancer Registry, each case of cancer seen at that health facility. Failure to comply may be cause for assessment of an administrative fine for the health facility, the same as for violation of KRS 216B.250 .
  3. Each health facility shall grant to the cancer registry access to all records which would identify cases of cancer or would establish characteristics of the cancer, treatment of the cancer, or status of any identified cancer patient. Hospitals actively participating and enrolled in the cancer patient data management system of the Kentucky Cancer Program as of July 13, 1990, shall be considered to be in compliance with this section. The Lucille Parker Markey Cancer Center shall provide staff assistance in compiling and reporting required information to hospitals which treat a low volume of patients.
  4. No liability of any kind or character for damages or other relief shall arise or be enforced against any licensed health facility by reason of having provided the information or material to the Kentucky Cancer Registry pursuant to the requirements of this section.
  5. The identity of any person whose condition or treatment has been reported to the Kentucky Cancer Registry shall be confidential, except that:
    1. The Kentucky Cancer Registry may exchange patient-specific data with any other cancer control agency or clinical facility for the purpose of obtaining information necessary to complete a case record, but the agency or clinical facility shall not further disclose such personal data; and
    2. The Kentucky Cancer Registry may contact individual patients if necessary to obtain follow-up information which is not available from the health facility.
  6. All information, interviews, reports, statements, memoranda, or other data furnished by reason of this section, expressly including all portions, subsets, extracts, or compilations of the data as well as any findings or conclusions resulting from those studies, shall be privileged and shall not be considered public records under KRS 61.870 to 61.884 . The Kentucky Cancer Registry may determine that certain extracts, subsets, or compilations of data do not reveal privileged information and may be published or otherwise shared to further the public health goals set forth herein.
  7. The Kentucky Cancer Registry shall make periodic reports of its data and any related findings and recommendations to the Legislative Research Commission, the Interim Joint Committees on Appropriations and Revenue and on Health and Welfare, the Governor, the Cabinet for Health and Family Services, the reporting health facility, and other appropriate governmental and nongovernmental cancer control agencies whose intent it is to reduce the incidence, morbidity, and mortality of cancer. The Kentucky Cancer Registry may conduct analyses and studies as are indicated to advance cancer control in the Commonwealth, either directly or by confidentially sharing data with third parties.

History. Enact. Acts 1990, ch. 318, § 5, effective July 1, 1990; 1994, ch. 184, § 3, effective July 15, 1994; 1998, ch. 426, § 410, effective July 15, 1998; 2005, ch. 99, § 463, effective June 20, 2005; 2012, ch. 127, § 2, effective July 12, 2012.

Opinions of Attorney General.

The University has failed to meet its burden of proving that the statistical information contained in the records to which the requester requests access is descriptive of any readily identifiable person. Although race and gender of the person are “personal characteristics,” they are not descriptive of any readily identifiable person. The statistical compilation sought simply does not identify individual persons, and the University has not met the burden of proving that those records fit within KRS 214.556(5) and (6). OAG 04-ORD-77.

Acquired Immunodeficiency Syndrome

214.600. Legislative findings.

The General Assembly finds that acquired immunodeficiency syndrome, otherwise known as AIDS, constitutes a serious and unique danger to the public health and welfare. The General Assembly finds that acquired immunodeficiency syndrome is transmitted by sexual activity, by intravenous drug use, or from an infected mother to a fetus and that public fear of contagion from casual contact is not supported by any scientific evidence. The General Assembly finds that acquired immunodeficiency syndrome is transmitted by a retrovirus which makes the possibility of development of an immunization or cure highly unlikely in the near future. The General Assembly finds that, once infected, there is a high probability that an individual will develop acquired immunodeficiency syndrome or a related syndrome and die a premature death as a result, but may live productively for years in a communicable state without showing any signs or symptoms of illness. The General Assembly finds the unique methods of transmission of this disease, and its inevitably fatal course, have raised public fears; changed the attitudes of employers, insurers, educators, law enforcement personnel, and health and medical providers about dealing with the disease; and could unexpectedly raise the medical costs of this state. The General Assembly intends to establish programs and requirements related to acquired immunodeficiency syndrome which carefully balance medical necessity, the right to privacy, and protection of the public from harm and which establish public programs for the care and treatment of persons with acquired immunodeficiency syndrome and related conditions.

History. Enact. Acts 1990, ch. 443, § 1, effective July 13, 1990.

Opinions of Attorney General.

Candidates for licensure renewal with regard to nurses must complete the AIDS education course(s) as part of their ongoing continuing education requirements; this interpretation satisfies the purpose behind the AIDS education program which is to keep the medical community, along with the general public, fully informed of the everchanging issues involved with AIDS, and thus, the completion of the AIDS education course is required for every license renewal period. OAG 90-121 .

Research References and Practice Aids

Northern Kentucky Law Review.

Braden, Aids: Dealing With the Plague, 19 N. Ky. L. Rev. 277 (1992).

214.605. Public education program.

  1. The Cabinet for Health and Family Services shall establish a program to educate the public about the threat of acquired immunodeficiency syndrome.
  2. The Acquired Immunodeficiency Syndrome Education Program shall:
    1. Be designed to reach all segments of the Commonwealth’s population;
    2. Contain special components designed to reach minority groups within the state;
    3. Impart knowledge to the public about methods of transmission of acquired immunodeficiency syndrome and methods of prevention;
    4. Educate the public about transmission risks in social, employment, and educational situations;
    5. Educate health-care workers and health facilities’ employees about methods of transmission and prevention in their unique workplace environments;
    6. Contain special components designed to reach persons who may frequently engage in behaviors placing them at a high risk for acquiring acquired immunodeficiency syndrome;
    7. Provide information and consultation to state agencies to educate all state employees;
    8. Provide information and consultation to state and local agencies to educate law enforcement and correctional personnel and inmates;
    9. Provide information and consultation to local governments to educate local government employees;
    10. Make information available to private employers and encourage them to distribute this information to their employees; and
    11. Contain special components which emphasize appropriate behavior and attitude change.
  3. The program designed by the Cabinet for Health and Family Services shall utilize all appropriate forms of the media and shall identify sources of educational materials that can be used by businesses, schools, and health-care providers in the regular course of their business.
  4. The department may contract with other persons in the design, development, and distribution of the components of the education program.

History. Enact. Acts 1990, ch. 443, § 2, effective July 13, 1990; 1998, ch. 426, § 411, effective July 15, 1998; 2005, ch. 99, § 464, effective June 20, 2005.

Research References and Practice Aids

Northern Kentucky Law Review.

Braden, Aids: Dealing With the Plague, 19 N. Ky. L. Rev. 277 (1992).

214.610. Cabinet for Health and Family Services to approve educational courses on all aspects of HIV and acquired immunodeficiency syndrome — Publication of current informational resources to inform and update all health care professionals.

  1. The Cabinet for Health and Family Services shall approve appropriate educational courses on the transmission, control, treatment, and prevention of the human immunodeficiency virus and acquired immunodeficiency syndrome, that may address appropriate behavior and attitude change.
  2. The Department for Public Health shall publish on its Web site the current informational resources for the development of the educational courses or programs. To the extent possible, the educational courses or programs under this subsection shall:
    1. Include changes in Kentucky law affecting HIV testing and reporting; confidentiality and privacy of HIV-related data, information, and reports; and advances in treatment protocols, intervention protocols, coordination of services, and other information deemed important by the Department for Public Health and the Centers for Disease Control and Prevention (CDC);
    2. Inform all professions involved with or affected by the birthing process about the importance of HIV testing of pregnant women and the probability of preventing perinatal transmission of HIV with appropriate treatment; and
    3. Update all health care professionals requesting information about the potential involvement of their occupation in the treatment or prevention of blood-borne pathogens with the latest CDC guidelines on occupational exposure to HIV and other blood-borne pathogens.

HISTORY: Enact. Acts 1990, ch. 443, § 3, effective July 13, 1990; 1996, ch. 369, § 3, effective July 15, 1996; 1998, ch. 426, § 412, effective July 15, 1998; 2000, ch. 343, § 26, effective July 14, 2000; 2001, ch. 61, § 1, effective June 21, 2001; 2002, ch. 211, § 47, effective July 15, 2002; 2005, ch. 99, § 465, effective June 20, 2005; 2015 ch. 113, § 1, effective June 24, 2015.

Research References and Practice Aids

Northern Kentucky Law Review.

Braden, Aids: Dealing With the Plague, 19 N. Ky. L. Rev. 277 (1992).

214.615. Required educational course on transmission, control, treatment, and prevention of AIDS. [Repealed]

HISTORY: Enact. Acts 1990, ch. 443, § 15, effective July 13, 1990; 1996, ch. 369, § 4, effective July 15, 1996; 2001, ch. 61, § 2, effective June 21, 2001; 2002, ch. 211, § 48, effective July 15, 2002; 2010, ch. 85, § 19, effective July 15, 2010; repealed by 2015 ch. 113, § 33, effective June 24, 2015.

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 443, § 15, effective July 13, 1990) was repealed by Acts 2015 ch. 113, § 33, effective June 24, 2015.

214.620. Cabinet for Health and Family Services, in consultation with professional associations, to develop instructional material on HIV — Comprehensive information to be presented to any person receiving treatment.

  1. The Cabinet for Health and Family Services shall develop instructional material on the human immunodeficiency virus, including information related to methods of transmission, education, and infection control. To expeditiously and economically develop, produce, and distribute the instructional material required under this section, the Cabinet for Health and Family Services shall consult with the professional associations of professions to determine whether suitable instructional materials already exist that may be lawfully reproduced or reprinted.
  2. Information on the human immunodeficiency virus infection shall be presented to any person who receives treatment at any hospital, however named, skilled-nursing facilities, primary-care centers, rural health clinics, outpatient clinics, ambulatory-care facilities, ambulatory surgical centers, and emergency-care centers licensed pursuant to KRS Chapter 216B. The information shall include but not be limited to methods of transmission and prevention and appropriate behavior and attitude change.

History. Enact. Acts 1990, ch. 443, § 30, effective July 13, 1990; 1998, ch. 426, § 413, effective July 15, 1998; 2001, ch. 61, § 3, effective June 21, 2001; 2002, ch. 211, § 49, effective July 15, 2002; 2005, ch. 99, § 466, effective June 20, 2005; 2010, ch. 85, § 20, effective July 15, 2010; 2015 ch. 113, § 2, effective June 24, 2015.

Compiler's Notes

This section (Enact. Acts 1990, ch. 443, § 15, effective July 13, 1990; 1996, ch. 369, § 4, effective July 15, 1996; 2001, ch. 61, § 2, effective June 21, 2001; 2002, ch. 211, § 48, effective July 15, 2002; 2010, ch. 85, § 19, effective July 15, 2010.) was repealed by Acts2015 ch. 113, § 33, effective June 24, 2015.

Legislative Research Commission Note.

(2/22/94). To facilitate use, the listing of statutes in subsection (1) of this statute has been rearranged in numerical order. A duplicated reference to KRS 327.050 has been eliminated.

Opinions of Attorney General.

Candidates for licensure renewal with regard to nurses must complete the AIDS education course(s) as part of their ongoing continuing education requirements; this interpretation satisfies the purpose behind the AIDS education program which is to keep the medical community, along with the general public, fully informed of the everchanging issues involved with AIDS, and thus, the completion of the AIDS education course is required for every license renewal period. OAG 90-121 .

Research References and Practice Aids

Northern Kentucky Law Review.

Braden, Aids: Dealing With the Plague, 19 N. Ky. L. Rev. 277 (1992).

214.625. Legislative findings — Consent for medical procedures and tests including HIV infection — Physician’s responsibility — Confidentiality of results — Exceptions — Disclosure — Network of voluntary HIV testing programs.

  1. The General Assembly finds that the use of tests designed to reveal a condition indicative of human immunodeficiency virus (HIV) infection can be a valuable tool in protecting the public health. The General Assembly finds that despite current scientific knowledge that antiretroviral therapy (ART) prolongs the lives of acquired immunodeficiency syndrome victims, and may also be effective when introduced in the early stages of human immunodeficiency virus infection, many members of the public are deterred from seeking testing because they misunderstand the nature of the test or fear that test results will be disclosed without their consent. The General Assembly finds that the public health will be served by facilitating informed, voluntary, and confidential use of tests designed to detect human immunodeficiency virus infection.
  2. A person who has signed a general consent form for the performance of medical procedures and tests is not required to also sign or be presented with a specific consent form relating to medical procedures or tests to determine human immunodeficiency virus infection, antibodies to human immunodeficiency virus, or infection with any other causative agent of acquired immunodeficiency syndrome that will be performed on the person during the time in which the general consent form is in effect. However, a general consent form shall instruct the patient that, as part of the medical procedures or tests, the patient may be tested for human immunodeficiency virus infection, hepatitis, or any other blood-borne infectious disease if a doctor or advanced practice registered nurse orders the test for diagnostic purposes. Except as otherwise provided in subsection (5)(c) of this section, the results of a test or procedure to determine human immunodeficiency virus infection, antibodies to human immunodeficiency virus, or infection with any probable causative agent of acquired immunodeficiency syndrome performed under the authorization of a general consent form shall be used only for diagnostic or other purposes directly related to medical treatment.
  3. In any emergency situation where informed consent of the patient cannot reasonably be obtained before providing health-care services, there is no requirement that a health-care provider obtain a previous informed consent.
  4. The physician or advanced practice registered nurse who orders the test pursuant to subsections (1) and (2) of this section, his or her designee, or the attending physician, shall be responsible for informing the patient of the results of the test if the test results are positive for human immunodeficiency virus infection. If the tests are positive, the physician or advanced practice registered nurse, or his or her designee, shall also be responsible for either:
    1. Providing information and counseling to the patient concerning his infection or diagnosis and the known medical implications of such status or condition; or
    2. Referring the patient to another appropriate professional or health-care facility for the information and counseling.
    1. No person in this state shall perform a test designed to identify the human immunodeficiency virus, or its antigen or antibody, without first obtaining the informed consent of the person upon whom the test is being performed, except as specified in subsections (2) and (3) of this section. (5) (a) No person in this state shall perform a test designed to identify the human immunodeficiency virus, or its antigen or antibody, without first obtaining the informed consent of the person upon whom the test is being performed, except as specified in subsections (2) and (3) of this section.
    2. No test result shall be determined as positive, and no positive test result shall be revealed to any person, without corroborating or confirmatory tests being conducted.
    3. No person who has obtained or has knowledge of a test result pursuant to this section shall disclose or be compelled to disclose the identity of any person upon whom a test is performed, or the results of the test in a manner which permits identification of the subject of the test, except to the following persons:
      1. The subject of the test or the subject’s legally authorized representative;
      2. Any person designated in a legally effective release of the test results executed prior to or after the test by the subject of the test or the subject’s legally authorized representative;
      3. A physician, nurse, or other health-care personnel who has a legitimate need to know the test result in order to provide for his protection and to provide for the patient’s health and welfare;
      4. Health-care providers consulting between themselves or with health-care facilities to determine diagnosis and treatment;
      5. The cabinet, in accordance with rules for reporting and controlling the spread of disease, as otherwise provided by state law;
      6. A health facility or health-care provider which procures, processes, distributes, or uses:
        1. A human body part from a deceased person, with respect to medical information regarding that person; or
        2. Semen provided prior to July 13, 1990, for the purpose of artificial insemination;
      7. Health facility staff committees, for the purposes of conducting program monitoring, program evaluation, or service reviews;
      8. Authorized medical or epidemiological researchers who shall not further disclose any identifying characteristics or information;
      9. A parent, foster parent, or legal guardian of a minor; a crime victim; or a person specified in KRS 438.250 ;
      10. A person allowed access by a court order which is issued in compliance with the following provisions:
        1. No court of this state shall issue an order to permit access to a test for human immunodeficiency virus performed in a medical or public health setting to any person not authorized by this section or by KRS 214.420 . A court may order an individual to be tested for human immunodeficiency virus only if the person seeking the test results has demonstrated a compelling need for the test results which cannot be accommodated by other means. In assessing compelling need, the court shall weigh the need for testing and disclosure against the privacy interest of the test subject and the public interest which may be disserved by disclosure which deters blood, organ, and semen donation and future human immunodeficiency virus-related testing or which may lead to discrimination. This paragraph shall not apply to blood bank donor records;
        2. Pleadings pertaining to disclosure of test results shall substitute a pseudonym for the true name of the subject of the test. The disclosure to the parties of the subject’s true name shall be communicated confidentially, in documents not filed with the court;
        3. Before granting any order, the court shall provide the individual whose test result is in question with notice and a reasonable opportunity to participate in the proceedings if he is not already a party;
        4. Court proceedings as to disclosure of test results shall be conducted in camera, unless the subject of the test agrees to a hearing in open court or unless the court determines that a public hearing is necessary to the public interest and the proper administration of justice; and
        5. Upon the issuance of an order to disclose test results, the court shall impose appropriate safeguards against unauthorized disclosure, which shall specify the persons who may have access to the information, the purposes for which the information shall be used, and appropriate prohibitions on future disclosure. No person to whom the results of a test have been disclosed shall disclose the test results to another person except as authorized by this subsection. When disclosure is made pursuant to this subsection, it shall be accompanied by a statement in writing which includes the following or substantially similar language: “This information has been disclosed to you from records whose confidentiality is protected by state law. State law prohibits you from making any further disclosure of such information without the specific written consent of the person to whom such information pertains, or as otherwise permitted by state law. A general authorization for the release of medical or other information is NOT sufficient for this purpose.” An oral disclosure shall be accompanied by oral notice and followed by a written notice within ten (10) days.
    1. The Cabinet for Health and Family Services shall establish a network of voluntary human immunodeficiency virus testing programs in every county in the state. These programs shall be conducted in each public health department established under the provisions of KRS Chapter 211. Additional programs may be contracted to other private providers to the extent that finances permit and local circumstances dictate. (6) (a) The Cabinet for Health and Family Services shall establish a network of voluntary human immunodeficiency virus testing programs in every county in the state. These programs shall be conducted in each public health department established under the provisions of KRS Chapter 211. Additional programs may be contracted to other private providers to the extent that finances permit and local circumstances dictate.
    2. Each public health department shall have the ability to provide counseling and testing for the human immunodeficiency virus to each patient who receives services and shall offer the testing on a voluntary basis to each patient who requests the test.
    3. Each public health department shall provide a program of counseling and testing for human immunodeficiency virus infection, on an anonymous or confidential basis, dependent on the patient’s desire. If the testing is performed on an anonymous basis, only the statistical information relating to a positive test for human immunodeficiency virus infection shall be reported to the cabinet. If the testing is performed on a confidential basis, the name and other information specified in KRS 214.645 shall be reported to the cabinet. The cabinet shall continue to provide for anonymous testing and counseling.
    4. The result of a serologic test conducted under the auspices of the cabinet shall not be used to determine if a person may be insured for disability, health, or life insurance or to screen or determine suitability for, or to discharge a person from, employment. Any person who violates the provisions of this subsection shall be guilty of a Class A misdemeanor.
  5. No public health department and no other person in this state shall conduct or hold themselves out to the public as conducting a testing program for acquired immunodeficiency syndrome, acquired immunodeficiency syndrome related complex, or human immunodeficiency virus status without first registering with the cabinet, complying with all other applicable provisions of state law, and meeting the following requirements:
    1. The program shall be directed by a person who has completed an educational course approved by the cabinet in the counseling of persons with acquired immunodeficiency syndrome, acquired immunodeficiency syndrome related complex, or human immunodeficiency virus infection;
    2. The program shall have all medical care supervised by a physician licensed under the provisions of KRS Chapter 311;
    3. The program shall have all laboratory procedures performed in a laboratory licensed under the provisions of KRS Chapter 333;
    4. Informed consent shall be required prior to testing.   Informed consent shall be preceded by an explanation of the test, including its purpose, potential uses, and limitations and the meaning of its results;
    5. The program, unless it is a blood donor center, shall provide pretest counseling on the meaning of a test for human immunodeficiency virus, including medical indications for the test; the possibility of false positive or false negative results; the potential need for confirmatory testing; the potential social, medical, and economic consequences of a positive test result; and the need to eliminate high-risk behavior;
    6. The program shall provide supplemental corroborative testing on all positive test results before the results of any positive test is provided to the patient;
    7. The program shall provide post-test counseling, in person, on the meaning of the test results; the possible need for additional testing; the social, medical, and economic consequences of a positive test result; and the need to eliminate behavior which might spread the disease to others;
    8. Each person providing post-test counseling to a patient with a positive test result shall receive specialized training, to be specified by regulation of the cabinet, about the special needs of persons with positive results, including recognition of possible suicidal behavior, and shall refer the patient for further health and social services as appropriate;
    9. When services are provided for a charge during pretest counseling, testing, supplemental testing, and post-test counseling, the program shall provide a complete list of all charges to the patient and the cabinet; and
    10. Nothing in this subsection shall be construed to require a facility licensed under KRS Chapter 333 or a person licensed under the provisions of KRS Chapters 311, 312, or 313 to register with the cabinet if he or she does not advertise or hold himself or herself out to the public as conducting testing programs for human immunodeficiency virus infection or specializing in such testing.
  6. Any violation of this section by a licensed health-care provider shall be a ground for disciplinary action contained in the professional’s respective licensing chapter.
  7. Except as provided in subsection (6)(d) of this section and KRS 304.12-013 , insurers and others participating in activities related to the insurance application and underwriting process shall be exempt from this section.
  8. The cabinet shall develop program standards consistent with the provisions of this section for counseling and testing persons for the human immunodeficiency virus.

History. Enact. Acts 1990, ch. 443, § 40, effective July 13, 1990; 1994, ch. 309, § 2, effective July 15, 1994; 1998, ch. 426, § 414, effective July 15, 1998; 2000, ch. 432, § 8, effective July 14, 2000; 2004, ch. 102, § 3, effective July 13, 2004; 2005, ch. 99, § 467, effective June 20, 2005; 2010, ch. 85, § 74, effective July 15, 2010; 2019 ch. 134, § 2, effective June 27, 2019.

Research References and Practice Aids

Northern Kentucky Law Review.

Braden, Aids: Dealing With the Plague, 19 N. Ky. L. Rev. 277 (1992).

214.630. Payment of costs.

  1. If the defendant is able to pay, he shall pay all fees and costs associated with this action.
  2. If the defendant is found by the court to be indigent, all fees and costs shall be waived and defendant shall be represented by an attorney from, or under contract to the Department of Public Advocacy.

History. Enact. Acts 1990, ch. 443, § 45, effective July 13, 1990.

214.635. Estimate of AIDS and HIV infection impact on state spending for health.

The cabinet, on an annual basis, shall estimate the potential impact of acquired immunodeficiency syndrome and human immunodeficiency virus infection on total state spending for health.

History. Enact. Acts 1990, ch. 443, § 46, effective July 13, 1990.

Research References and Practice Aids

Northern Kentucky Law Review.

Braden, Aids: Dealing With the Plague, 19 N. Ky. L. Rev. 277 (1992).

214.640. HIV and AIDS Planning and Advisory Council — Membership — Functions.

  1. The Cabinet for Health and Family Services may create, to the extent permitted by available staffing and funding, an HIV and AIDS Planning and Advisory Council to consist of no more than thirty (30) members, for the purpose of advising the cabinet on the formulation of HIV and AIDS policy. Membership on the committee shall be drawn from the following:
    1. The commissioner of the Department for Public Health;
    2. The commissioner of the Department for Medicaid Services;
    3. Representatives of other state agencies or boards that provide services to clients of HIV or AIDS services or that provide education to professionals who come into contact with HIV or AIDS clients, as designated by the Governor;
    4. Physicians representing different geographic regions of the state;
    5. HIV or AIDS clients; and
    6. Representatives of community-based organizations from different geographic regions of the state.

      To the extent possible, membership of the council shall reflect the epidemiology of the HIV/AIDS epidemic.

  2. The members designated under paragraphs (a) to (c) of subsection (1) of this section shall serve for the duration of service in their offices, subject to removal for cause by the Governor. These members shall not be paid for attending council meetings but may receive reimbursement of expenses.
  3. The members serving under paragraphs (d) to (f) of subsection (1) of this section shall be appointed by the cabinet from lists submitted by the appropriate licensing entities of the profession involved, by the cabinet, and by community-based organizations. These members shall serve for a term of four (4) years and may be reappointed, but the members shall not serve for more than two (2) consecutive terms.
  4. The chair of the council shall be elected from the membership serving under paragraphs (d) to (f) of subsection (1) of this section.
  5. The functions of the council shall include but shall not be limited to:
    1. Reporting its findings to the cabinet and monitoring the responsiveness of the cabinet to insure that the council’s recommendations are being followed;
    2. Exploring the feasibility, design, cost, and necessary funding for centers of excellence to deliver comprehensive, coordinated medical and related care to all people with HIV or AIDS in the Commonwealth based on national clinical guidelines and practice standards. Coordinated medical care shall include but not be limited to access to:
      1. AIDS primary care;
      2. Drug therapy;
      3. Specialists’ care, including psychiatric and other mental health providers;
      4. Case management services;
      5. Dental care;
      6. Chemical dependency treatment; and
      7. Basic needs, including but not limited to housing and food;
    3. Assessing resources and gaps in services provided for persons with HIV or AIDS;
    4. Subdividing into necessary subcommittees. One (1) subcommittee may be formed that will consist solely of persons living with HIV or AIDS. This subcommittee shall make those recommendations as it deems necessary to the council, including recommendations on effective peer-based prevention programs; and
    5. Reporting its findings and recommendations to the General Assembly and the Interim Joint Committee on Health and Welfare by September 1, 2001, and by September 1 of each year thereafter.

History. Enact. Acts 2000, ch. 432, § 3, effective July 14, 2000; 2002, ch. 103, § 1, effective July 15, 2002; 2005, ch. 99, § 468, effective June 20, 2005; 2012, ch. 158, § 49, effective July 12, 2012.

214.645. Reporting system of HIV-positive persons — Confidentiality and reporting requirements — Reporting system surveillance, assessment, and restrictions.

  1. The Cabinet for Health and Family Services shall establish a system for reporting, by the use of the person’s name, of all persons who test positive for the human immunodeficiency virus (HIV) infection. The reporting shall include the data including, but not limited to, CD4 count and viral load, and other information that are necessary to comply with the confidentiality and reporting requirements of the most recent edition of the Centers for Disease Control and Prevention’s (CDC) Guidelines for National Human Immunodeficiency Virus Case Surveillance. Anonymous testing shall remain as an alternative. If less restrictive data identifying requirements are identified by the CDC, the cabinet shall evaluate the new requirements for implementation.
  2. The reporting system established under subsection (1) of this section shall:
    1. Use the same confidential name-based approach for HIV surveillance that is used for AIDS surveillance by the cabinet;
    2. Attempt to identify all modes of HIV transmission, unusual clinical or virologic manifestations, and other cases of public health importance;
    3. Require collection of the names and data from all private and public sources of HIV-related testing and care services; and
    4. Use reporting methods that match the CDC’s standards for completeness, timeliness, and accuracy, and follow up, as necessary, with the health care provider or the provider’s designee making the report to verify completeness, timeliness, and accuracy.
  3. Authorized surveillance staff designated by the cabinet shall:
    1. Match the information from the reporting system to other public health databases, wherever possible, to limit duplication and to better quantify the extent of HIV infection in the Commonwealth;
    2. Conduct a biennial assessment of the HIV and AIDS reporting systems, insure that the assessment is available for review by the public and any state or federal agency, and forward a copy of the assessment to the Legislative Research Commission and the Interim Joint Committee on Health and Welfare;
    3. Document the security policies and procedures and insure their availability for review by the public or any state or federal agency;
    4. Minimize storage and retention of unnecessary paper or electronic reports and insure that related policies are consistent with CDC technical guidelines;
    5. Assure that electronic transfer of data is protected by encryption during transfer;
    6. Provide that records be stored in a physically secluded area and protected by coded passwords and computer encryption;
    7. Restrict access to data a minimum number of authorized surveillance staff who are designated by a responsible authorizing official, who have been trained in confidentiality procedures, and who are aware of penalties for unauthorized disclosure of surveillance information;
    8. Require that any other public health program that receives data has appropriate security and confidentiality protections and penalties;
    9. Restrict use of data, from which identifying information has been removed, to cabinet-approved research, and require all persons with this use to sign confidentiality statements;
    10. Prohibit release of any names or any other identifying information that may have been received in a report to any person or organization, whether public or private, except in compliance with federal law or consultations with other state surveillance programs and reporting sources. Under no circumstances shall a name or any identifying information be reported to the CDC; and
    11. Immediately investigate any report of breach of reporting, surveillance, or confidentiality policy, report the breach to the CDC, develop recommendations for improvements in security measure, and take appropriate disciplinary action for any documented breach.
  4. The cabinet shall require any physician, advanced practice registered nurse, designee, or medical laboratory that receives a report of a positive test for the human immunodeficiency virus to report that information by reference to the name in accordance with the procedure for establishing name reporting required by the cabinet in an administrative regulation.

History. Enact. Acts 2000, ch. 432, § 4, effective July 14, 2000; 2004, ch. 102, § 4, effective July 13, 2004; 2005, ch. 99, § 469, effective June 20, 2005; 2010, ch. 85, § 75, effective July 15, 2010; 2019 ch. 134, § 3, effective June 27, 2019.

214.650. Review of HIV and AIDS care coordination — Surveillance of newborns exposed to HIV — HIV and AIDS pharmacological services.

  1. The cabinet shall:
    1. Conduct a review of any guidelines for HIV or acquired immunodeficiency syndrome (AIDS) care coordination to ensure:
      1. Consistency;
      2. Comprehensive in service; and
      3. That access to health care and sustaining individuals infected with HIV/AIDS in primary HIV-related medical care is the top priority for care coordinators;
    2. Conduct objective peer reviews, as necessary, of each care coordination agency to insure that care coordinators are in compliance with the care coordination guidelines;
    3. Conduct outcome evaluations, as necessary and as permitted by funding limitations, to measure the quality and impact of the care coordinator delivery system;
    4. Review the need for additional care coordinators to assure that client caseloads are manageable and, to the extent that funds are available, strive for a maximum client caseload of forty (40) to fifty (50) clients per care coordinator. If, after this review, the cabinet finds the need for additional staff, it may develop a plan and request funding for the hiring of additional care coordinators in the geographic areas of greatest need;
    5. Review eligibility criteria for persons who wish to receive treatment medications through the Kentucky AIDS Drug Assistance Program to ensure that these funds are the funds of last resort;
    6. Review the data collected under KRS 214.645 to determine whether allocated resources are sufficiently distributed to meet the geographic distribution of reported HIV and AIDS cases;
    7. Work with other agencies, departments, and cabinets to advise on their development of educational HIV and AIDS programs that are mandated by law;
    8. Urge access to Spanish-speaking interpreters to provide prevention, treatment, and service efforts where needed in the Commonwealth;
    9. Provide for consistent and comprehensive HIV and AIDS counseling and testing education in all public health departments as needed;
    10. Require collaboration between HIV prevention educators and HIV care coordinators with the goal of reducing the further transmission of HIV by those already infected; and
    11. Encourage community-based organizations to develop an outreach program designed to foster active partnerships with willing faith-based communities. These partnerships may be used to educate community members about illegal drug use, the value of harm reduction programs, and HIV and AIDS prevention and services.
  2. Authorized surveillance staff designated by the cabinet shall review all known cases of newborns with perinatal exposure to HIV infection or with HIV infection.
  3. Any pharmacy or clinic that provides HIV or AIDS-related medications through the Kentucky AIDS Drug Assistance Program or any other state assistance program shall:
    1. Be encouraged to provide pharmacological consultation reimbursement with written documentation. Documentation may include date of interview, assessment of timely drug refills, side effects, problems, remediation, outcomes noted, and the pharmacist’s HIV specialized physician; and
    2. Be encouraged to seek HIV pharmacological certification in addition to already recommended continuing education training on HIV and AIDS.

History. Enact. Acts 2000, ch. 432, § 5, effective July 14, 2000.

214.655. Availability of grant opportunities for treatment of HIV and AIDS.

The cabinet may make available information about grant opportunities to nonprofit clinics in the Commonwealth that are established to provide treatment in a multidisciplinary team approach for patients with HIV and AIDS.

History. Enact. Acts 2000, ch. 432, § 6, effective July 14, 2000.

Penalties

214.990. Penalties.

  1. Every head of a family who willfully fails or refuses and every physician who fails or refuses to comply with KRS 214.010 shall be guilty of a violation for each day he neglects or refuses to report. Repeated failure to report is sufficient cause for the revocation of a physician’s certificate to practice medicine in this state.
  2. Any person who willfully violates any administrative regulation promulgated under KRS Chapter 13A by the Cabinet for Health and Family Services under KRS 214.020 shall be guilty of a Class B misdemeanor.
  3. Any physician or other person legally permitted to engage in attendance upon a pregnant woman during pregnancy or at delivery who fails to exercise due diligence in complying with KRS 214.160 and 214.170 shall be guilty of a violation.
  4. Any person who violates any of the provisions of KRS 214.280 to 214.310 shall be guilty of a Class A misdemeanor.
  5. Any person who violates any provision of KRS 214.034 or KRS 158.035 shall be guilty of a Class B misdemeanor.
  6. Any person who violates any provision of KRS 214.420 shall be guilty of a violation. Each violation shall constitute a separate offense.
  7. Any person who knowingly violates any provision of KRS 214.452 to 214.466 shall be guilty of a Class D felony. Each violation shall constitute a separate offense.

History. 2049, 2055a, 2056, 2062b-3, 2062b-8, 2062d-9, 2635c-12, 3909, 4615, G.S., ch. 102, Art. II, § 8: amend. Acts 1954, ch. 223, § 5; 1962, ch. 95, § 5; 1968, ch. 87, § 7; 1974, ch. 74, Art. VI, § 107(3); 1978, ch. 384, § 65, effective June 17, 1978; 1984, ch. 113, § 5, effective July 13, 1984; 1986, ch. 294, § 4, effective July 15, 1986; 1988, ch. 76, § 10, effective July 15, 1988; 1992, ch. 463, § 23, effective July 14, 1992; 1998, ch. 426, § 415, effective July 15, 1998; 2005, ch. 99, § 470, effective June 20, 2005; 2021 ch. 7, § 23, effective February 2, 2021.

Research References and Practice Aids

Cross-References.

Children entering school to present certificate of immunization, KRS 158.035 .

Sentence of imprisonment for felony, KRS 532.060 .

Sentence of imprisonment for misdemeanor, KRS 532.090 .

Northern Kentucky Law Review.

Braden, Aids: Dealing With the Plague, 19 N. Ky. L. Rev. 277 (1992).

214.995. Penalties for disclosure of HIV test results or identity of person upon whom test is performed — Exceptions.

  1. A person who discloses, intentionally in violation of KRS 214.181(5)(d) or 214.625(5)(c), the identity of a person upon whom has been conducted a test to detect human immunodeficiency virus infection shall be guilty of a Class A misdemeanor.
  2. A person who intentionally releases any name or other identifying information in violation of KRS 215.645(3)(j) shall be guilty of a Class A misdemeanor.

History. Enact. Acts 2004, ch. 102, § 5, effective July 13, 2004.

Legislative Research Commission Note.

(7/15/2008). 2008 Ky. Acts ch. 150, sec. 1, inserted an additional paragraph into KRS 214.181(5) and changed the existing paragraph (c) to paragraph (d), but that Act failed to include a conforming amendment to change the reference to that paragraph in subsection (1) of this statute. Under KRS 7.136(1)(e), that change has now been made.

CHAPTER 215 Tuberculosis

State Commission

215.005. Definitions for KRS 215.005 to 215.068. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 151, § 1, effective June 17, 1954) was repealed by Acts 1970, ch. 133, § 11.

215.006. State Tuberculosis Hospital Commission — Appointment — Terms — Chairman — Meetings — Per diem and expenses. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 151, § 2, effective June 17, 1954) was repealed by Acts 1970, ch. 133, § 11.

215.007. Control and management of state hospitals — Their funds and power to receive property and donations — Reports to Governor. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 151, § 3, effective June 17, 1954) was repealed by Acts 1970, ch. 133, § 11.

215.008. Funds available to commission — Allocation of appropriations among hospitals. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 151, § 4, effective June 17, 1954) was repealed by Acts 1970, ch. 133, § 11.

215.009. Transfer of title of hospital property in Jefferson County — Payment of outstanding bonds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 151, § 5, effective June 17, 1954) was repealed by Acts 1970, ch. 133, § 11.

215.010. State tuberculosis sanatorium — Rules for conduct and for relief of tuberculosis. [Repealed.]

Compiler’s Notes.

This section (2061a-30i) was repealed by Acts 1948, ch. 190, § 7.

215.012. Training schools for commission employees. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 23, § 1, effective June 16, 1960) was repealed by Acts 1970, ch. 133, § 11.

215.014. Treatment of pulmonary fungus diseases in state hospitals. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 24, effective June 16, 1960; 1974, ch. 74, Art. VI, § 107(24)) was repealed by Acts 1996, ch. 33, § 11, effective July 15, 1996.

215.020. Employment of inmates. [Repealed.]

Compiler’s Notes.

This section (2061a-30d) was repealed by Acts 1948, ch. 190, § 7.

215.030. Paupers may be sent to state sanatorium at county expense. [Repealed.]

Compiler’s Notes.

This section (2061a-30e) was repealed by Acts 1948, ch. 190, § 7.

215.040. Charge for pay patients — Acceptance of gifts. [Repealed.]

Compiler’s Notes.

This section (2061a-30f) was repealed by Acts 1948, ch. 190, § 7.

215.050. Cost of transporting patients. [Repealed.]

Compiler’s Notes.

This section (2061a-30h) was repealed by Acts 1948, ch. 190, § 7.

215.060. Patients received in order of application. [Repealed.]

Compiler’s Notes.

This section (2061a-30g) was repealed by Acts 1948, ch. 190, § 7.

215.061. Division of state into tuberculosis hospital districts. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 151, § 6, effective June 17, 1954; 1960, ch. 22, § 1, effective June 16, 1960) was repealed by Acts 1970, ch. 133, § 11.

215.062. Executive director and other personnel. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 151, §§ 7, 8, effective June 17, 1954; 1966, ch. 255, § 206) was repealed by Acts 1970, ch. 133, § 1.

215.063. Allocation of beds — Rates for hospitalization. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 151, § 9, effective June 17, 1954) was repealed by Acts 1970, ch. 133, § 1.

215.064. Admission of patients for treatment. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 151, § 10, effective June 17, 1954) was repealed by Acts 1970, ch. 133, § 1.

215.065. Appropriations for state tuberculosis sanatoria — Allocation and use. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 190, § 8) was repealed by Acts 1954, ch. 151, § 14, effective June 17, 1954.

215.066. Waiting lists. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 151, § 11, effective June 17, 1954) was repealed by Acts 1970, ch. 133, § 1.

215.067. Transfer of patients. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 151, § 12, effective June 17, 1954) was repealed by Acts 1970, ch. 133, § 1.

215.068. Cost of transporting patients. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 151, § 13, effective June 17, 1954) was repealed by Acts 1970, ch. 133, § 1.

215.069. Continued drug therapy for discharged indigent patients. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 114, § 1) was repealed by Acts 1970, ch. 133, § 1.

215.070. Transfer of title of sanatorium property in Jefferson County — Payment of outstanding bonds. [Repealed.]

Compiler’s Notes.

This section (2061a-33: amend. Acts 1948, ch. 190, § 9) was repealed by Acts 1954, ch. 151, § 14, effective June 17, 1954.

215.071. Tuberculosis sanatoria districts — Division of state into. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1944, ch. 97, §§ 1, 2) was repealed by Acts 1954, ch. 151, § 14, effective June 17, 1954.

215.072. State Tuberculosis Sanatoria Commission — Appointment — Terms — Chairman — Meetings — Per diem — Expenses — Attachment to Department of Welfare — Payment of expenses. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1944, ch. 97, § 3) was repealed by Acts 1954, ch. 151, § 14, effective June 17, 1954.

215.073. Selection and acquisition of sites for sanatoria — Acquisition of existing structures. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1944, ch. 97, § 4) was repealed by Acts 1948, ch. 190, § 7.

215.074. Report to Governor — Contracts for construction of sanatoria and for utility services. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1944, ch. 97, § 5) was repealed by Acts 1948, ch. 190, § 7.

215.075. Boards of commissioners for sanatoria. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1944, ch. 97, § 6) was repealed by Acts 1948, ch. 190, § 7.

215.076. Control and management of state sanatoria and their funds and property — Power to receive property; donations — Reports to Governor. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1944, ch. 97, § 7; 1948, ch. 190, § 2) was repealed by Acts 1954, ch. 151, § 14, effective June 17, 1954.

215.077. Medical directors and employes for state sanatoria — Employment of inmates. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1944, ch. 97, § 8; 1948, ch. 190, § 3) was repealed by Acts 1954, ch. 151, § 14, effective June 17, 1954.

215.078. Acceptance and transfer of patients — Paying patients — Pauper patients — Negroes. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1944, ch. 97, § 9; 1948, ch. 190, § 4) was repealed by Acts 1954, ch. 151, § 14, effective June 17, 1954.

215.079. Cost of transporting patients. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1944, ch. 97, § 10; 1948, ch. 190, § 5) was repealed by Acts 1954, ch. 151, § 14, effective June 17, 1954.

Sanatorium Districts

215.080. Tuberculosis sanatorium districts authorized. [Repealed.]

Compiler’s Notes.

This section (2061a-3: amend. Acts 1984, ch. 100, § 18, effective July 13, 1984) was repealed by Acts 1984, ch. 4, § 3, effective July 15, 1986.

215.090. Establishment of sanatorium district for one county by fiscal court — Appropriation. [Repealed.]

Compiler’s Notes.

This section (2061a-3) was repealed by Acts 1984, ch. 4, § 3, and Acts 1984, ch. 100, § 30.

215.100. Establishment for several counties by fiscal courts — Appropriation — Apportionment of expense. [Repealed.]

Compiler’s Notes.

This section (2061a-3: amend. Acts 1974, ch. 74, Art. VI, § 107(3)) was repealed by Acts 1984, ch. 4, § 3, and Acts 1984, ch. 100, § 30.

215.110. Establishment by election. [Repealed.]

Compiler’s Notes.

This section (2061a-4) was repealed by Acts 1984, ch. 4, § 3, and Acts 1984, ch. 100, § 30.

215.120. Election in one county. [Repealed.]

Compiler’s Notes.

This section (2061a-4: amend. Acts 1966, ch. 239, § 165; 1978, ch. 384, § 348; 1982, ch. 360, § 58) was repealed by Acts 1984, ch. 4, § 3, and Acts 1984, ch. 100, § 30.

215.130. Election in several counties. [Repealed.]

Compiler’s Notes.

This section (2061a-4) was repealed by Acts 1984, ch. 4, § 3, and Acts 1984, ch. 100, § 30.

215.140. County may join established district. [Repealed.]

Compiler’s Notes.

This section (2061a-5: amend. Acts 1974, ch. 749, Art. VI, § 107(3); 1982, ch. 360, § 59) was repealed by Acts 1984, ch. 4, § 3, and Acts 1984, ch. 100, § 30.

215.150. Establishment and maintenance of district upon certification of favorable election. [Repealed.]

Compiler’s Notes.

This section (2061a-6) was repealed by Acts 1984, ch. 4, § 3, and Acts 1984, ch. 100, § 30.

215.160. District board of trustees — How appointed — Membership — Qualifications. [Repealed.]

Compiler’s Notes.

This section (2061a-7: amend. Acts 1974, ch. 74, Art. VI, § 107(3)) was repealed by Acts 1984, ch. 4, § 3.

215.170. Term of office of board members — Vacancies. [Repealed.]

Compiler’s Notes.

This section (2061a-7, 2061a-8: amend. Acts 1974, ch. 74, Art. VI, § 107(3)) was repealed by Acts 1984, ch. 4, § 3.

215.180. Organization of board — Officers — Quorum. [Repealed.]

Compiler’s Notes.

This section (2061a-9) was repealed by Acts 1984, ch. 4, § 3.

215.190. Trustees not compensated — Expenses paid. [Repealed.]

Compiler’s Notes.

This section (2061a-13) was repealed by Acts 1984, ch. 4, § 3.

215.200. Powers of board. [Repealed.]

Compiler’s Notes.

This section (2061a-8, 2061a-11, 2061a-17, 2061a-20: amend. Acts 1974, ch. 339, § 1) was repealed by Acts 1984, ch. 4, § 3.

215.210. Selection of site — Approval of site and plans by cabinet for human resources. [Repealed.]

Compiler’s Notes.

This section (2061a-10: amend. Acts 1974, ch. 74, Art. VI, § 107(3)) was repealed by Acts 1984, ch. 4, § 3.

215.220. Visitation by trustees — Reports by superintendent and officers — Annual meeting by board. [Repealed.]

Compiler’s Notes.

This section (2061a-16: amend. Acts 1974, ch. 74, Art. VI, § 107(3)) was repealed by Acts 1984, ch. 4, § 3.

215.230. Payment of taxes to board of trustees. [Repealed.]

Compiler’s Notes.

This section (2061a-12) was repealed by Acts 1984, ch. 4, § 3.

215.240. Trustees and employees not to be interested in sanatorium’s contracts. [Repealed.]

Compiler’s Notes.

This section (2061a-18) was repealed by Acts 1984, ch. 4, § 3.

215.250. Duties of treasurer. [Repealed.]

Compiler’s Notes.

This section (2061a-19) was repealed by Acts 1984, ch. 4, § 3.

215.260. Records open to auditor. [Repealed.]

Compiler’s Notes.

This section (2061a-24) was repealed by Acts 1984, ch. 4, § 3.

215.270. Medical superintendent — Appointment — Qualifications — Removal — Temporary superintendent. [Repealed.]

Compiler’s Notes.

This section (2061a-14: amend. Acts 1974, ch. 74, Art. VI, § 107(3)) was repealed by Acts 1984, ch. 4, § 3.

215.280. Powers and duties of medical superintendent — Assistants and employes — Fees. [Repealed.]

Compiler’s Notes.

This section (2061a-15: amend. Acts 1974, ch. 74, Art. VI, § 107(3)) was repealed by Acts 1984, ch. 4, § 3.

215.285. Commission may elect coverage under workmen’s compensation law. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 128, § 1) was repealed by Acts 1972, ch. 203, § 55.

215.290. Conditions of admission as free patient — Number of patients. [Repealed.]

Compiler’s Notes.

This section (2961a-20) was repealed by Acts 1984, ch. 4, § 3.

215.300. Maintenance of patients able to pay to be recovered by county attorney — Liability of relatives. [Repealed.]

Compiler’s Notes.

This section (2961a-21: amend. Acts 1976 (Ex. Sess.), ch. 17, § 47) was repealed by Acts 1984, ch. 4, § 3.

215.310. Sanatorium may accept paying patients — Fees. [Repealed.]

Compiler’s Notes.

This section (2961a-22) was repealed by Acts 1984, ch. 4, § 3.

215.320. State aid for acquisition and operation of district sanatoria. [Repealed.]

Compiler’s Notes.

This section (2961a-26, 2061a-27, 2061a-28: amend. Acts 1948, ch. 159; 1952, ch. 112; 1974, ch. 74, Art. II, § 9(1)) was repealed by Acts 1984, ch. 4, § 3.

215.330. State aid conditioned on compliance with regulations. [Repealed.]

Compiler’s Notes.

This section (2961a-29) was repealed by Acts 1984, ch. 4, § 3.

215.340. Application for state aid must be approved by cabinet for human resources. [Repealed.]

Compiler’s Notes.

This section (2961a-30: amend. Acts 1974, ch. 74, Arts. II, § 9(1) and VI, § 107(3)) was repealed by Acts 1984, ch. 4, § 3.

215.345. State aid for tuberculosis sanatoria operated by city-county board of health — Application. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 74, § 1) was repealed by Acts 1984, ch. 4, § 3.

215.350. Sanatoria visitation — Removal of trustees and employes — Rules and regulations. [Repealed.]

Compiler’s Notes.

This section (2061a-2, 2061a-25: amend. Acts 1970, ch. 92, § 72; 1974, ch. 74, Art. VI, § 71) was repealed by Acts 1984, ch. 4, § 3.

215.355. Cabinet for human resources to visit, inspect and regulate sanatoria operated by city-county boards of health. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 74, § 1; 1974, ch. 74, Art. VI, § 107(3)) was repealed by Acts 1984, ch. 4, § 3.

215.360. Sanatorium property not utilized may be sold or leased. [Repealed.]

Compiler’s Notes.

This section (2061b-1: amend. Acts 1962, ch. 122, § 1) was repealed by Acts 1984, ch. 4, § 3.

215.370. Division of proceeds of sale in a joint district. [Repealed.]

Compiler’s Notes.

This section (2061b-2) was repealed by Acts 1984, ch. 4, § 3.

215.380. Dissolution of district on sale of property. [Repealed.]

Compiler’s Notes.

This section (2061b-3) was repealed by Acts 1984, ch. 4, § 3.

215.390. County may contract for care of its patients in sanatorium of another district — Diversion of funds collected for sanatorium. [Repealed.]

Compiler’s Notes.

This section (2061a-4a, 2061a-23) was repealed by Acts 1984, ch. 4, § 3.

215.400. Board of tuberculosis hospital in county with city of first class — Members — Appointment — Qualifications — Term of office — Vacancies — Compensation. [Repealed.]

Compiler’s Notes.

This section (938k-1, 938k-2) was repealed by Acts 1942, ch. 41, § 25.

215.410. Powers of board. [Repealed.]

Compiler’s Notes.

This section (938k-1, 938k-2, 938k-4) was repealed by Acts 1942, ch. 41, § 25.

215.420. County and city to levy taxes for hospital. [Repealed.]

Compiler’s Notes.

This section (938k-3) was repealed by Acts 1942, ch. 41, § 25.

215.430. Board may accept donations. [Repealed.]

Compiler’s Notes.

This section (938k-2a, 938k-2b) was repealed by Acts 1942, ch. 41, § 25.

215.440. Use of donated funds. [Repealed.]

Compiler’s Notes.

This section (938k-2a, 938k-2c, 938k-2e, 938k-2h) was repealed by Acts 1942, ch. 41, § 25.

215.450. Investment of donations. [Repealed.]

Compiler’s Notes.

This section (938k-2c) was repealed by Acts 1942, ch. 41, § 25.

215.460. Custodian of donated funds — Bond. [Repealed.]

Compiler’s Notes.

This section (938k-2d) was repealed by Acts 1942, ch. 41, § 25.

215.470. Audit of donated funds. [Repealed.]

Compiler’s Notes.

This section (938k-2f) was repealed by Acts 1942, ch. 41, § 25.

215.480. Use of hospital for research. [Repealed.]

Compiler’s Notes.

This section (938k-2g) was repealed by Acts 1942, ch. 41, § 25.

Tuberculosis Control

215.510. Division of tuberculosis control. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 133, § 2) was repealed by Acts 1974, ch. 74, Art. VI, § 108.

215.511. Definitions of “active tuberculosis” and “isolates.”

As used in KRS 215.520 , 215.531 , 215.540 , 215.550 , 215.560 , 215.570 , and 215.590 :

  1. “Active tuberculosis” means tuberculosis disease as demonstrated by clinical, bacteriologic, or radiographic evidence, and includes the condition of persons with the disease who have not completed an adequate course of anti-tuberculosis treatment; and
  2. “Isolates” means a population of Mycobacterium tuberculosis observed in cultures obtained from clinical specimens of persons with active tuberculosis.

History. Enact. Acts 1996, ch. 33, § 1, effective July 15, 1996.

215.520. Duties relating to tuberculosis control.

The secretary of the Cabinet for Health and Family Services shall discharge all duties relating to all matters of tuberculosis control, including, but not limited to, the following:

  1. The facilitation of appropriate clinical services for either recalcitrant or drug resistant persons with active tuberculosis for which failure to provide services will lead to further spread of disease in the Commonwealth;
  2. The promulgation of administrative regulations pursuant to KRS Chapter 13A for the purpose of carrying out the directives of this section, KRS 215.540 , 215.550 , 215.560 , 215.570 , 215.580 , 215.590 , and 215.600 ;
  3. The maintenance of a central register of all known cases of tuberculosis in the Commonwealth, and local registers as desirable, and the collection, collation, analysis, and publication of statistics and other information;
  4. The facilitation of tuberculosis programs in cooperation with the Department of Corrections, Department of Education, and other state agencies within their respective jurisdictions;
  5. The establishment within the Cabinet for Health and Family Services of appropriate social service and financial responsibility appraisal methods to insure that tuberculosis patients or suspects receive all possible support from third-party payors, or from the Medical Assistance Program. The Cabinet for Health and Family Services may contract for services for persons with tuberculosis, either directly or through local health departments, and may pay the rates it deems necessary as a charge against the tuberculosis control funds of the Commonwealth;
  6. The dissemination of educational materials to the citizens of the Commonwealth regarding tuberculosis and its control;
  7. The initiation of special programs and demonstrations in cooperation with agencies of the federal government, universities, voluntary agencies, and other individuals or corporations;
  8. The provision of direct assistance to local health departments, to other agencies of state government, and to other organizations to assist them in carrying out education, prevention, and treatment programs of tuberculosis control; and
  9. Except as otherwise provided by law, to do all other things reasonably necessary to carry out the intent of this section and KRS 215.540 to 215.600 .

History. Enact. Acts 1970, ch. 133, § 3; 1974, ch. 74, Art. VI, § 78; 1980, ch. 188, § 208, effective July 15, 1980; 1982, ch. 271, § 2, effective July 15, 1982; 1986, ch. 331, § 34, effective July 15, 1986; 1992, ch. 211, § 78, effective July 14, 1992; 1996, ch. 33, § 3, effective July 15, 1996; 1998, ch. 426, § 416, effective July 15, 1998; 2005, ch. 99, § 471, effective June 20, 2005.

215.530. Tuberculosis commission — Membership — Chairman — Meetings — Compensation — Function. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 133, § 4; 1980, ch. 188, § 209, effective July 15, 1980) was repealed by Acts 1982, ch. 271, § 3, effective July 15, 1982.

215.531. Drug susceptibility tests on initial isolates from patients with active tuberculosis.

Every physician shall order drug susceptibility tests on initial isolates from all patients with active tuberculosis to confirm the anticipated effectiveness of chemotherapy. If the patient continues to produce culture positive results following three (3) months of treatment, the drug susceptibility tests shall be repeated.

History. Enact. Acts 1996, ch. 33, § 2, effective July 15, 1996.

215.540. Recalcitrant tuberculosis patient control.

KRS 215.540 to 215.580 may be referred to as the “Kentucky Recalcitrant Tuberculosis Patient Control Law.” The General Assembly hereby recognizes and declares that persons with active tuberculosis have a legal duty and responsibility to the public to take reasonable precautions to prevent the spread of the disease.

History. Enact. Acts 1970, ch. 133, § 5; 1996, ch. 33, § 4, effective July 15, 1996.

215.550. Responsibilities of persons diagnosed with active tuberculosis.

  1. A person diagnosed with active tuberculosis which can be communicated from person to person shall have a legal responsibility to take reasonable precautions to prevent the transmission of the infection to others.
  2. No person diagnosed as having active tuberculosis for which further examination or treatment is determined to be necessary shall, when informed of the need for examination or treatment, refuse to submit to the examination or treatment upon the reasonable request of the cabinet or a local health department.
  3. A person diagnosed with active tuberculosis shall take all precautions, as prescribed by the cabinet or a local health department, for the prevention of transmission of that infection. The precautions shall be the least restrictive to the person which are possible without sacrificing the efficacy of protection.

History. Enact. Acts 1970, ch. 133, § 6; 1974, ch. 74, Art. VI, § 79; 1996, ch. 33, § 5, effective July 15, 1996.

215.560. Affidavit of failure to comply — Administrative and judicial action.

  1. Whenever a person has reasonable cause to suspect that an individual with active tuberculosis has knowingly failed to comply with the provisions of KRS 215.520 to 215.600 , the person may file an affidavit with the local health department serving the jurisdiction where the individual resides or where the alleged violation occurred. The affiant shall state the details of the violation as completely and accurately as possible and the local health department shall, with the assistance of the cabinet, if necessary, conduct an appropriate investigation and, if indicated, shall order the violator in writing to submit to the needed precautions, including quarantine, in order to isolate and restrict activities, examination, or treatment. If the local health department determines in the course of providing services that a violation has occurred, it may issue an order regardless of the presence of an affidavit.
  2. If a person refuses to comply with an order of a local health department pursuant to subsection (1) of this section, the health department shall, if the public health need for intervention still exists, file a verified petition for relief with the District Court in the county of its principal office. The health department shall include all pertinent details in its petition. The defendant shall have the right to be represented by counsel and the case shall be handled in the same manner as a civil case in every other regard. If the court finds from a preponderance of the evidence or upon admission by the defendant that the defendant is in violation of provisions in KRS 215.520 to 215.600 , the court shall enter an order that the appropriate precautions, examinations, or treatment be carried out.

History. Enact. Acts 1970, ch. 133, § 7; 1974, ch. 74, Art. VI, § 107(3); 1976 (Ex. Sess.), ch. 14, § 205; effective January 2, 1978; 1980, ch. 188, § 210, effective July 15, 1980; 1996, ch. 33, § 6, effective July 15, 1996.

215.570. Violation of court order — Penalties.

  1. If the court, subsequent to an order of the court as described in KRS 215.560(2), finds a person in violation of that order, the defendant shall be guilty of a misdemeanor and shall be subject to the penalties set forth in subsection (2) of this section. If, however, a course of treatment for active tuberculosis in an inpatient facility or less restrictive treatment alternative is available and is recommended by the cabinet, the court may prescribe a course of treatment in lieu of penalties, and place the defendant on probation. Failure to enter the facility as prescribed, departure from the facility against medical advice, or failure to adhere to a less restrictive treatment alternative shall be grounds for immediate revocation of probation.
  2. A person who is found to be in violation of an order issued by the court under KRS 215.560(2) shall be fined not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000), or shall be imprisoned for not less than six (6) nor more than twelve (12) months, or both.

History. Enact. Acts 1970, ch. 133, § 8; 1974, ch. 74, Art. VI, § 107(1), (3); 1996, ch. 33, § 7, effective July 15, 1996.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. I, A, 22, (1) at 860.

215.580. Legal representation of local health department in enforcement.

The city, county, and Commonwealth’s attorneys and the Attorney General, within their respective jurisdictions, shall represent the local health department in the enforcement of the provisions of KRS 215.520 to 215.600 . However, a local health department may employ an attorney to represent it in proceedings under KRS 215.520 to 215.600 and pay the attorney reasonable compensation for the attorney’s services.

History. Enact. Acts 1970, ch. 133, § 9; 1980, ch. 188, § 211, effective July 15, 1980; 1996, ch. 33, § 8, effective July 15, 1996.

Research References and Practice Aids

Kentucky Law Journal.

Underwood, Part-Time Prosecutors and Conflicts of Interest: A Survey and Some Proposals, 81 Ky. L.J. 1 (1993).

215.590. Responsibility to report active tuberculosis cases and results of drug susceptibility tests on tubercle bacilli.

  1. A health service or health facility required to be licensed pursuant to KRS Chapter 216B or KRS Chapter 333, a health provider required to be licensed pursuant to KRS Chapters 311, 312, 313, 314, 315, or 320, or any other person who has knowledge of a person who has active tuberculosis, shall report the case to the local health department in accordance with the administrative regulations of the Cabinet for Health and Family Services promulgated pursuant to KRS Chapter 13A.
  2. Physicians, hospitals, laboratories, or other institutions which perform related drug susceptibility tests on tubercle bacilli shall report the results of the testing to the local health department in accordance with the administrative regulations of the Cabinet for Health and Family Services promulgated pursuant to KRS Chapter 13A. All reports of drug-resistant tubercle bacilli shall be made regardless of previous reports.
  3. No legal action shall lie against any physician, hospital employee, laboratory employee, or other person who, in good faith, reports a case of tuberculosis or the isolation of the tubercle bacillus as provided in this section, KRS 215.511 , 215.520 , 215.531 , 215.540 , 215.550 , 215.560 , 215.570 , 215.580 , and 215.600 .

History. Enact. Acts 1970, ch. 133, § 10; 1974, ch. 74, Art. VI, § 107(1); 1980, ch. 188, § 212, effective July 15, 1980; 1996, ch. 33, § 9, effective July 15, 1996; 1998, ch. 426, § 417, effective July 15, 1998; 2005, ch. 99, § 472, effective June 20, 2005.

215.600. Title of law.

KRS 215.520 to 215.600 may be cited as the “State Tuberculosis Control Act of 1996.”

History. Enact. Acts 1970, ch. 133, § 1; 1980, ch. 188, § 213, effective July 15, 1980; 1996, ch. 33, § 10, effective July 15, 1996.

CHAPTER 216 Health Facilities and Services

City or County Hospitals

216.010. County containing city of second, third, fourth or fifth class may establish and maintain hospital. [Repealed.]

Compiler’s Notes.

This section (938e-1: amend. Acts 1976, ch. 140, § 91) was repealed by Acts 1978, ch. 118, § 19.

216.020. Election on bond issue for hospital. [Repealed.]

Compiler’s Notes.

This section (938e-2) was repealed by Acts 1978, ch. 118, § 19.

216.030. Fiscal court to sell bonds and expend proceeds. [Repealed.]

Compiler’s Notes.

This section (938e-3) was repealed by Acts 1978, ch. 118, § 19.

216.040. Control of hospital — Fees — Nursing instruction. [Repealed.]

Compiler’s Notes.

This section (938e-5) was repealed by Acts 1978, ch. 118, § 19.

216.050. County shall levy tax for maintenance of hospital. [Repealed.]

Compiler’s Notes.

This section (938e-6) was repealed by Acts 1978, ch. 118, § 19.

216.060. Clinic may be maintained by county containing city of second class. [Repealed.]

Compiler’s Notes.

This section (1840e-1) was repealed by Acts 1978, ch. 118, § 19.

216.070. County may contract with city, county, city-county board of health or private hospital for hospitalization of indigent residents — Reimbursement for emergency care. [Repealed.]

Compiler’s Notes.

This section (913-1: amend. Acts 1956, ch. 119; 1972, ch. 203, § 47) was repealed by Acts 1978, ch. 118, § 19.

216.080. Cities of second to fifth classes may establish hospital. [Repealed.]

Compiler’s Notes.

This section (3235i-1: amend. Acts 1946, ch. 169, § 17) was repealed by Acts 1980, ch. 239, § 4. For present law, see KRS 82.081 , 82.082 .

216.090. Ordinance for establishment of hospital — Election on. [Repealed.]

Compiler’s Notes.

This section (3235i-2: amend. Acts 1946, ch. 169, § 18; 1966, ch. 239, § 166) was repealed by Acts 1980, ch. 239, § 4.

216.100. Ordinance for bond issue.

Any city of the home rule class may, by ordinance, borrow money and issue negotiable bonds for the purpose of defraying the cost of purchasing, establishing, erecting and acquiring a municipal hospital and necessary appurtenances thereto. The ordinance shall specify the proposed undertaking, the amount of bonds to be issued, and the maximum rate of interest the bonds are to bear. The ordinance shall further provide that the proposed hospital, with necessary appurtenances thereto, is to be purchased, established, erected or acquired pursuant to the provisions of KRS 216.100 to 216.220 .

History. 3235i-3: amend. Acts 1946, ch. 169, § 19; 2014, ch. 92, § 276, effective January 1, 2015.

NOTES TO DECISIONS

Cited:

Pulaski County v. Ben Hur Life Ass’n, 286 Ky. 119 , 149 S.W.2d 738, 1941 Ky. LEXIS 210 ( Ky. 1941 ).

216.110. Interest rate and term of bonds.

All bonds issued under the provisions of KRS 216.100 to 216.220 may bear interest at a rate or rate or method of determining rates, payable at least annually, and shall be executed in a manner and be payable at times, not exceeding thirty (30) years from the date of the issue of the bonds, and at a place as the legislative body shall determine.

History. 3235i-4; 1996, ch. 274, § 50, effective July 15, 1996.

216.120. Negotiability of bonds — Tax exemption — Signatures — How sold — Not a city debt.

All bonds issued under KRS 216.100 to 216.220 shall be negotiable and shall not be subject to taxation. If any officer whose signature appears on the bonds or coupons ceases to be an officer before delivery of the bonds, the signature shall nevertheless be valid and sufficient for all purposes the same as if he had remained in office until delivery. The bonds shall be sold in a manner and upon the terms as the legislative body of the city deems for the best interest of the city, or any contract for the purchase or acquisition of any municipal hospital may provide that payment of the bonds shall be made in bonds. The bonds shall be payable solely from the revenue derived from the operation of the hospital as provided in KRS 216.160 , and shall not constitute an indebtedness of the city within the meaning of the constitution. It shall be plainly stated on the face of each bond that it was issued under the provisions of KRS 216.100 to 216.220 and does not constitute an indebtedness of the city within the meaning of the Constitution.

History. 3235i-5; 1996, ch. 274, § 51, effective July 15, 1996.

Research References and Practice Aids

Kentucky Law Journal.

Morrow, County Debt Difficulties in Kentucky, Legal Problems, 31 Ky. L.J. 242 (1943).

216.130. Use of proceeds of bonds.

All money received from any bonds issued under KRS 216.100 to 216.220 shall be applied solely to the purchase, establishment, erection or acquisition of the municipal hospital and necessary appurtenances thereto, except that the money may be used also to advance the payment of interest on the bonds during the first three (3) years following the date of the bonds, and to advance the expense of operation and maintenance for one (1) month after the opening of the hospital.

History. 3235i-6.

216.140. Bondholders’ lien — Enforcement.

There shall be a statutory mortgage lien upon the municipal hospital and appurtenances in favor of the holders of the bonds and coupons. The hospital and appurtenances shall remain subject to the lien until payment in full of the principal and interest of the bonds. Any holder of the bonds or coupons may, by action either at law or in equity, protect and enforce the lien, and may by proper proceedings enforce and compel performance of all duties required by KRS 216.100 to 216.220 , including the making and collecting of sufficient rates, the segregation of the income and revenue, and the application thereof.

History. 3235i-6, 3235i-7.

216.150. Receiver in case of default.

If there is a default in the payment of the principal or interest of any of the bonds issued under KRS 216.100 to 216.220 , any court having jurisdiction of the action may appoint a receiver to administer the municipal hospital on behalf of the city, with power to charge and collect rates for the services the hospital renders sufficient to provide for the payment of any bonds or obligations outstanding against the hospital and for payment of the operating expenses, and to apply the income and revenue in conformity with KRS 216.100 to 216.220 and the ordinance referred to in KRS 216.160 .

History. 3235i-8.

216.160. Sinking fund, operation and depreciation accounts to be provided — Lease income.

  1. On or before the issuance of the bonds the city legislative body shall, by ordinance, set aside and pledge the income of the municipal hospital into a separate and special fund to be used and applied in payment of the cost, maintenance, operation and depreciation of the hospital. The ordinance shall fix the amount of revenue necessary to be set aside and applied to the payment of the principal and interest of the bonds and the proportion of the balance of the income to be set aside as a proper and adequate depreciation account. The remaining portion of the balance shall be set aside for the reasonable and proper operation and maintenance of the hospital. The rates to be charged for the use of the hospital and the services it renders shall be fixed and revised from time to time so as to be sufficient to provide for the payment of interest upon all bonds and to create a sinking fund to pay the principal thereof when it becomes due, to provide for the operation and maintenance of the hospital, and to provide an adequate depreciation account.
  2. The municipality issuing bonds under KRS 216.100 may lease the facility built from the proceeds of said bonds to a hospital district created under KRS 216.310 et seq. In that event the lease income from a lease agreement between the municipality and the hospital district shall be sufficient to provide for the payment of interest upon the bonds, to create a sinking fund to pay the principal thereof at or prior to maturity, to accumulate proper reserves, and to pay the costs of operation and insurance; or the lease may provide that the lessee shall pay the cost of insurance.

History. 3235i-9: amend. Acts 1970, ch. 145, § 1.

216.170. Use of surplus in operating fund.

If a surplus is accumulated in the operating and maintenance fund equal to the cost of maintaining and operating the municipal hospital during the remainder of the calendar, operating or fiscal year, as may be provided by the ordinance required by KRS 216.160 , the city legislative body may at any time transfer the excess to the depreciation account to be used for any improvements or additions to the hospital.

History. 3235i-10.

216.180. Use of depreciation account.

The funds accumulating to the depreciation account shall be expended in balancing depreciation on the municipal hospital, or in making new constructions or additions thereto. Any such accumulations may be invested as the legislative body may designate. The income from such investments shall be carried into the depreciation account.

History. 3235i-11.

216.190. Refunding bonds.

The city may issue refunding bonds for the purpose of providing funds for the payment of any outstanding bonds, in accordance with the procedure prescribed for the issuance of the original bonds. The refunding bonds shall be secured to the same extent and shall have the same source of payment as the bonds that are refunded.

History. 3235i-12.

216.200. Additional bonds for establishment of hospital.

If the city legislative body finds that the bonds first authorized will be insufficient to accomplish the purpose desired, additional bonds may be authorized and issued subject to the same procedure.

History. 3235i-13.

216.210. Original issue may include bonds for additions and improvements.

Any city acquiring a municipal hospital pursuant to the provisions of KRS 216.100 to 216.220 may, at the time of issuing bonds for such acquisition, provide for additional bonds for additions and permanent improvements to be placed in escrow and to be negotiated from time to time as proceeds for that purpose are necessary. Such bonds when so negotiated shall have equal standing with the bonds of the same issue.

History. 3235i-14.

216.220. Subsequent issue of bonds for additions and improvements.

Any city acquiring a municipal hospital under the provisions of KRS 216.100 to 216.220 may provide for additions to and improvements of the hospital by an additional issue of bonds in the same manner as the original bonds.

History. 3235i-15.

216.230. City may provide for administration of income. [Repealed.]

Compiler’s Notes.

This section (3235i-16) was repealed by Acts 1980, ch. 239, § 4.

216.240. Hospital commission to operate hospital. [Repealed.]

Compiler’s Notes.

This section (3235i-17: amend. 1946, ch. 149, § 206) was repealed by Acts 1980, ch. 239, § 4.

Lying-in Hospitals

216.250. Private lying-in hospitals — How established. [Repealed.]

Compiler’s Notes.

This section (2090, 2091) was repealed by Acts 1980, ch. 239, § 4.

216.260. Lying-in hospitals subject to inspection. [Repealed.]

Compiler’s Notes.

This section (2093: amend. Acts 1978, ch. 384, § 350) was repealed by Acts 1980, ch. 239, § 4.

Kentucky e-health Network

216.261. Kentucky Health Care Infrastructure Authority — Responsibilities — Funding — Annual report. [Repealed]

History. Enact. Acts 2005, ch. 30, § 1, effective March 8, 2005; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 2005, ch. 30, § 1, effective March 8, 2005) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

216.263. Definitions. [Repealed]

History. Enact. Acts 2005, ch. 30, § 2, effective March 8, 2005; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 2005, ch. 30, § 2, effective March 8, 2005) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

216.265. Kentucky e-Health Network Board — Membership — Terms — Employees — Immunity from liability — Reimbursement of expenses — Meetings — Committees or subcommittees — Reorganization. [Repealed]

History. Enact. Acts 2005, ch. 30, § 3, effective March 8, 2005; 2006, ch. 210, § 12, effective July 12, 2006; 2007, ch. 24, § 27, effective June 26, 2007; 2010, ch. 24, § 317, effective July 15, 2010; 2012, ch. 158, § 50, effective July 12, 2012; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 2005, ch. 30, § 3, effective March 8, 2005) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

216.267. Duties and responsibilities of Kentucky e-Health Network Board — Permitted functions of the board — Elements of fully implemented Kentucky e-Health Network. [Repealed]

History. Enact. Acts 2005, ch. 30, § 4, effective March 8, 2005; 2006, ch. 150, § 1, effective July 12, 2006; 2006, ch. 210, § 13, effective July 12, 2006; 2007, ch. 126, § 5, effective June 26, 2007; 2010, ch. 161, § 29, effective July 15, 2010; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 2005, ch. 30, § 4, effective March 8, 2005) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

216.269. Ke-HN fund. [Repealed]

History. Enact. Acts 2005, ch. 30, § 5, effective March 8, 2005; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 2005, ch. 30, § 5, effective March 8, 2005) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

Kentucky Health Care Data Commission

216.270. Definitions for KRS 216.273 to 216.287. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1993, (2nd Ex. Sess.) ch. 2, § 22) was repealed by Acts 1994, ch. 512, § 119. For present law see KRS 216.2920 to 216.2929 .

Legislative Research Commission Note.

(7/15/94). Under KRS 446.260 , the repeal of this section in Ky. Acts ch. 512 prevails over its amendment in 1994 Ky. Acts ch. 418.

216.273. Kentucky Health Care Data Commission — Membership — Terms — Executive director and staff — Liability of members. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1993, (2nd Ex. Sess.) ch. 2, § 23) was repealed by Acts 1994, ch. 512, § 119. For present law see KRS 216.2920 to 216.2929 .

216.275. Powers and duties of commission. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1993, (2nd Ex. Sess.) ch. 2, § 24) was repealed by Acts 1994, ch. 512, § 119. For present law see KRS 216.2920 to 216.2929 .

216.277. Limitation of powers of Cabinet for Human Resources with respect to commission. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1993, (2nd Ex. Sess.) ch. 2, § 25) was repealed by Acts 1994, ch. 512, § 119. For present law see KRS 216.2920 to 216.2929 .

216.280. Data required to be submitted to commission — Promulgation of administrative regulations — Other duties of commission. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1993, (2nd Ex. Sess.) ch. 2, § 26) was repealed by Acts 1994, ch. 512, § 119. For present law see KRS 216.2920 to 216.2929 .

216.283. Private data — Treatment and use of personal and aggregate data — Penalty. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1993, (2nd Ex. Sess.) ch. 2, § 27) was repealed by Acts 1994, ch. 512, § 119. For present law see KRS 216.2920 to 216.2929 .

216.285. Reports by commission. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1993, (2nd Ex. Sess.) ch. 2, § 28) was repealed by Acts 1994, ch. 512, § 119. For present law see KRS 216.2920 to 216.2929 .

216.287. Furnishing of data as condition of licensure of provider. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1993, (2nd Ex. Sess.) ch. 2, § 29) was repealed by Acts 1994, ch. 512, § 119. For present law see KRS 216.2920 to 216.2929 .

Kentucky Health Policy Board

216.2901. Definitions for KRS 216.2901 to 216.2947, 216.2950, and 216.2960. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1994, ch. 512, Part 1, § 1, effective July 15, 1996) was repealed by Acts 1996, ch. 371, § 64, effective July 15, 1996.

Legislative Research Commission Note.

(7/15/96). Under KRS 446.260 , the repeal of this section in 1996 Ky. Acts ch. 371, sec. 64, prevails over its amendment in 1996 Ky. Acts ch. 371, sec. 23.

216.2903. Kentucky Health Policy Board. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1994, ch. 512, Part 1, § 2, effective July 15, 1994) was repealed by Acts 1996, ch. 371, § 64, effective July 15, 1996.

216.2905. Powers and duties of board. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1994, ch. 512, Part 1, § 3, effective July 15, 1994) was repealed by Acts 1996, ch. 371, § 64, effective July 15, 1996.

216.2907. Powers of secretary of human resources. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1994, ch. 512, Part 1, § 4, effective July 15, 1994) was repealed by Acts 1996, ch. 371, § 64, effective July 15, 1996.

Health Data Collection

216.2920. Definitions for KRS 216.2920 to 216.2929.

As used in KRS 216.2920 to 216.2929 , unless the context requires otherwise:

  1. “Ambulatory facility” means an outpatient facility, including an ambulatory surgical facility, freestanding birth center, freestanding or mobile technology unit, or an urgent treatment center, that is not part of a hospital and that provides one (1) or more ambulatory procedures to patients not requiring hospitalization;
  2. “Cabinet” means the Cabinet for Health and Family Services;
  3. “Charge” means all amounts billed by a hospital or ambulatory facility, including charges for all ancillary and support services or procedures, prior to any adjustment for bad debts, charity contractual allowances, administrative or courtesy discounts, or similar deductions from revenue. However, if necessary to achieve comparability of information between providers, charges for the professional services of hospital-based or ambulatory-facility-based physicians shall be excluded from the calculation of charge;
  4. “Facility” means any hospital, health care service, or other health care facility, whether operated for profit or not;
  5. “Health-care provider” or “provider” means any pharmacist as defined pursuant to KRS Chapter 315, and any of the following independent practicing practitioners:
    1. Physicians, osteopaths, and podiatrists licensed pursuant to KRS Chapter 311;
    2. Chiropractors licensed pursuant to KRS Chapter 312;
    3. Dentists licensed pursuant to KRS Chapter 313;
    4. Optometrists licensed pursuant to KRS Chapter 320;
    5. Physician assistants regulated pursuant to KRS Chapter 311;
    6. Nurse practitioners licensed pursuant to KRS Chapter 314; and
    7. Other health-care practitioners as determined by the Cabinet for Health and Family Services by administrative regulation promulgated pursuant to KRS Chapter 13A;
  6. “Hospital” means a facility licensed pursuant to KRS Chapter 216B as either an acute-care hospital, psychiatric hospital, rehabilitation hospital, or chemical dependency treatment facility;
  7. “Procedures” means those surgical, medical, radiological, diagnostic, or therapeutic procedures performed by a provider, as periodically determined by the cabinet in administrative regulations promulgated pursuant to KRS Chapter 13A as those for which reports to the cabinet shall be required. “Procedures” also includes procedures that are provided in hospitals or other ambulatory facilities, or those that require the use of special equipment, including fluoroscopic equipment, computer tomographic scanners, magnetic resonance imagers, mammography, ultrasound equipment, or any other new technology as periodically determined by the cabinet;
  8. “Quality” means the extent to which a provider renders care that obtains for patients optimal health outcomes; and
  9. “Secretary” means the secretary of the Cabinet for Health and Family Services.

History. Enact. Acts 1994, ch. 512, Part 2, § 5, effective July 15, 1994; 1996, ch. 371, § 24, effective July 15, 1996; 1998, ch. 426, § 418, effective July 15, 1998; 1998, ch. 427, § 7, effective July 15, 1998; 2005, ch. 99, § 473, effective June 20, 2005; 2020 ch. 36, § 35, effective July 15, 2020.

216.2921. Duties of cabinet — Chief administrative officer — Secretary or employee not subject to personal liability.

  1. The Cabinet for Health and Family Services shall collect, pursuant to KRS 216.2925 , analyze, and disseminate information in a timely manner on the cost, quality, and outcomes of health services provided by health facilities and health-care providers in the Commonwealth. The cabinet shall make every effort to make health data findings that can serve as a basis to educate consumers and providers for the purpose of improving patient morbidity and mortality outcomes available to the public, and state and local leaders in health policy, through the cost-effective and timely use of the media and the Internet and through distribution of the findings to health facilities and health-care providers for further dissemination to their patients.
  2. The secretary of the Cabinet for Health and Family Services shall serve as chief administrative officer for the health data collection functions of KRS 216.2920 to 216.2929 .
  3. Neither the secretary nor any employee of the cabinet shall be subject to any personal liability for any loss sustained or damage suffered on account of any action or inaction of under KRS 216.2920 to 216.2929 .

History. Enact. Acts 1994, ch. 512, Part 2, § 6, effective July 15, 1994; 1996, ch. 371, § 25, effective July 15, 1996; 1998, ch. 426, § 419, effective July 15, 1998; 1998, ch. 427, § 8, effective July 15, 1998; 2005, ch. 99, § 474, effective June 20, 2005.

216.2923. Health data collection powers and duties — Analysis of health-care and insurance experience — Administrative regulations.

  1. For the purposes of carrying out the provisions of KRS 216.2920 to 216.2929 , the secretary may:
    1. Appoint temporary volunteer advisory committees, which may include individuals and representatives of interested public or private entities or organizations;
    2. Apply for and accept any funds, property, or services from any person or government agency;
    3. Make agreements with a grantor of funds or services, including an agreement to make any study allowed or required under KRS 216.2920 to 216.2929 ; and
    4. Contract with a qualified, independent third party for any service necessary to carry out the provisions of KRS 216.2920 to 216.2929; however, unless permission is granted specifically by the secretary a third party hired by the secretary shall not release, publish, or otherwise use any information to which the third party has access under its contract.
  2. For the purposes of carrying out the provisions of KRS 216.2920 to 216.2929 , the secretary shall:
    1. Periodically participate in or conduct analyses and studies that relate to:
      1. Health-care costs;
      2. Health-care quality and outcomes;
      3. Health-care providers and health services; and
      4. Health insurance costs;
    2. Promulgate administrative regulations pursuant to KRS Chapter 13A that relate to its meetings, minutes, and transactions related to KRS 216.2920 to 216.2929 ; and
    3. Prepare annually a budget proposal that includes the estimated income and proposed expenditures for the administration and operation of KRS 216.2920 to 216.2929.
  3. The cabinet may promulgate administrative regulations pursuant to KRS Chapter 13A that impose civil fines not to exceed five hundred dollars ($500) for each violation for knowingly failing to file a report as required under KRS 216.2920 to 216.2929 . The amount of any fine imposed shall not be included in the allowed costs of a facility for Medicare or Medicaid reimbursement.

HISTORY: Enact. Acts 1994, ch. 512, Part 2, § 7, effective July 15, 1994; 1996, ch. 371, § 26, effective July 15, 1996; 1998, ch. 427, § 9, effective July 15, 1998; 1998, ch. 496, § 53, effective April 10, 1998; 2005, ch. 144, § 5, effective June 20, 2005; 2008, ch. 71, § 1, effective July 15, 2008; 2010, ch. 24, § 318, effective July 15, 2010; 2012, ch. 146, § 101, effective July 12, 2012; 2012, ch. 158, § 51, effective July 12, 2012; 2017 ch. 80, § 47, effective June 29, 2017.

Research References and Practice Aids

Northern Kentucky Law Review.

Costich, The Kentucky Health Reform Act, 22 N. Ky. L. Rev. 381 (1995).

216.2925. Administrative regulations — Reports, lists, forms, and formats required.

  1. The Cabinet for Health and Family Services shall establish by promulgation of administrative regulations pursuant to KRS Chapter 13A those data elements required to be submitted to the cabinet by all hospitals and ambulatory facilities, including a timetable for submission and acceptable data forms. Each hospital and ambulatory facility shall be required to report on a quarterly basis information regarding the charge for and quality of the procedures and health-care services performed therein, and as stipulated by administrative regulations promulgated pursuant to KRS Chapter 13A. The cabinet shall accept data that, at the option of the provider, is submitted through a third party, including but not limited to organizations involved in the processing of claims for payment, so long as the data elements conform to the requirements established by the cabinet. The cabinet may conduct statistical surveys of a sample of hospitals, ambulatory facilities, or other providers in lieu of requiring the submission of information by all hospitals, ambulatory facilities, or providers. On at least a biennial basis, the cabinet shall conduct a statistical survey that addresses the status of women’s health, specifically including data on patient age, ethnicity, geographic region, and payor sources. The cabinet shall rely on data from readily available reports and statistics whenever possible.
  2. The cabinet shall require for submission to the cabinet by any group of providers, except for physicians providing services or dispensaries, first aid stations, or clinics located within business or industrial establishments maintained solely for the use of their employees, including those categories within the definition of provider contained in KRS 216.2920 and any further categories determined by the cabinet, at the beginning of each fiscal year after January 1, 1995, and within the limits of the state, federal, and other funds made available to the cabinet for that year, and as provided by cabinet promulgation of administrative regulations pursuant to KRS Chapter 13A, the following:
    1. A list of medical conditions, health services, and procedures for which data on charge, quality, and outcome shall be collected and published;
    2. A timetable for filing information provided for under paragraph (a) of this subsection on a quarterly basis;
    3. A list of data elements that are necessary to enable the cabinet to analyze and disseminate risk-adjusted charge, quality, and outcome information, including mortality and morbidity data;
    4. An acceptable format for data submission that shall include use of the uniform:
      1. Health claim form pursuant to KRS 304.14-135 or any other universal health claim form to be determined by the cabinet if in the form of hard copy; or
      2. Electronic submission formats as required under the federal Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. sec. 300 gg et seq., in the form of magnetic computer tape, computer diskettes, or other electronic media through an electronic network;
    5. Procedures to allow health-care providers at least thirty (30) days to review information generated from any data required to be submitted by them, with any reports generated by the cabinet to reflect valid corrections by the provider before the information is released to the public; and
    6. Procedures pertaining to the confidentiality of data collected.
  3. The cabinet shall coordinate but not duplicate its data-gathering activities with other data-collection activities conducted by the Department of Insurance, as well as other state and national agencies that collect health-related service, utilization, quality, outcome, financial, and health-care personnel data, and shall review all administrative regulations promulgated pursuant to KRS 216.2920 to 216.2929 to prevent duplicate filing requirements. The cabinet shall periodically review the use of all data collected under KRS 216.2920 to 216.2929 to assure its use is consistent with legislative intent.
  4. The cabinet shall conduct outcome analyses and effectiveness studies and prepare other reports pertaining to issues involving health-care charges and quality.
  5. The cabinet may independently audit any data required to be submitted by providers as needed to corroborate the accuracy of the submitted data. Any audit may be at the expense of the cabinet and shall, to the extent practicable, be coordinated with other audits performed by state agencies.
  6. The cabinet may initiate activities set forth in subsection (1) or (2) of this section at any time after July 15, 1996.
  7. The Cabinet for Health and Family Services shall collect all data elements under this section using only the uniform health insurance claim form pursuant to KRS 304.14-135 , the Professional 837 (ASC X12N 837) format, the Institutional 837 (ASC X12N 837) format, or its successor as adopted by the Centers for Medicare and Medicaid Services.

History. Enact. Acts 1994, ch. 512, Part 2, § 8, effective July 15, 1994; 1996, ch. 371, § 27, effective July 15, 1996; 1998, ch. 426, § 420, effective July 15, 1998; 1998, ch. 427, § 10, effective July 15, 1998; 2005, ch. 99, § 475, effective June 20, 2005; 2008, ch. 71, § 2, effective July 15, 2008; 2010, ch. 24, § 319, effective July 15, 2010; 2020 ch. 36, § 36, effective July 15, 2020.

216.2927. Types of data not to be published, released, or subject to inspection — Public-use data agreements and privacy rules — Confidentiality of raw data — Penalty for violation.

  1. The following types of data shall be deemed as relating to personal privacy and, except by court order, shall not be published or otherwise released by the cabinet or its staff and shall not be subject to inspection under KRS 61.870 to 61.884 :
    1. Any data, summary of data, correspondence, or notes that identify or could be used to identify any individual patient or member of the general public, unless the identified individual gives written permission to release the data or correspondence;
    2. Any correspondence or related notes from or to any employee or employees of a provider if the correspondence or notes identify or could be used to identify any individual employee of a provider, unless the corresponding persons grant permission to release the correspondence; and
    3. Data considered by the cabinet to be incomplete, preliminary, substantially in error, or not representative, the release of which could produce misleading information.
  2. Health-care providers submitting required data to the cabinet shall not be required to obtain individual permission to release the data, except as specified in subsection (1) of this section, and, if submission of the data to the cabinet complies with pertinent administrative regulations promulgated pursuant to KRS Chapter 13A, shall not be deemed as having violated any statute or administrative regulation protecting individual privacy.
    1. No less than sixty (60) days after the annual report or reports are published and except as otherwise provided, the cabinet shall make all aggregate data which does not allow disclosure of the identity of any individual patient, and which was obtained for the annual period covered by the reports, available to the public. (3) (a) No less than sixty (60) days after the annual report or reports are published and except as otherwise provided, the cabinet shall make all aggregate data which does not allow disclosure of the identity of any individual patient, and which was obtained for the annual period covered by the reports, available to the public.
    2. Persons or organizations requesting use of the data shall agree to abide by a public-use data agreement and by HIPAA privacy rules referenced in 45 C.F.R. Part 164. The public-use data agreement shall include, at a minimum, a prohibition against the sale or further release of data, and guidelines for the use and analysis of the data released to the public related to provider quality, outcomes, or charges.
  3. Collection of data about individual patients shall include information commonly used to identify an individual for assigning a unique patient identifier. Upon assigning a unique patient identifier, all direct identifying information shall be stripped from the data and shall not be retained by the cabinet or the cabinet’s designee.
  4. All data and information collected shall be kept in a secure location and under lock and key when specifically responsible personnel are absent.
  5. Only designated cabinet staff shall have access to raw data and information. The designated staff shall be made aware of their responsibilities to maintain confidentiality. Staff with access to raw data and information shall sign a statement indicating that the staff person accepts responsibility to hold that data or identifying information in confidence and is aware of penalties under state or federal law for breach of confidentiality. Data which, because of small sample size, breaches the confidence of individual patients, shall not be released.
  6. Any employee of the cabinet who violates any provision of this section shall be fined not more than five hundred dollars ($500) for each violation or be confined in the county jail for not more than six (6) months, or both, and shall be removed and disqualified from office or employment.

HISTORY: Enact. Acts 1994, ch. 512, Part 2, § 9, effective July 15, 1994; 1996, ch. 371, § 28, effective July 15, 1996; 2008, ch. 71, § 3, effective July 15, 2008; 2017 ch. 80, § 48, effective June 29, 2017; 2018 ch. 143, § 1, effective July 14, 2018.

Legislative Research Commission Note.

(7/15/2008). The internal numbering of subsection (3) of this section has been altered by the Reviser of Statutes from the numbering in 2008 Ky. Acts ch. 71, sec. 3, under the authority of KRS 7.136 .

216.2929. Data on health-care services charges and quality and outcome measures to be publicly available on cabinet’s web site — Report required.

    1. The Cabinet for Health and Family Services shall make available on its Web site information on charges for health-care services at least annually in understandable language with sufficient explanation to allow consumers to draw meaningful comparisons between every hospital and ambulatory facility, differentiated by payor if relevant, and for other provider groups as relevant data becomes available. (1) (a) The Cabinet for Health and Family Services shall make available on its Web site information on charges for health-care services at least annually in understandable language with sufficient explanation to allow consumers to draw meaningful comparisons between every hospital and ambulatory facility, differentiated by payor if relevant, and for other provider groups as relevant data becomes available.
    2. Any charge information compiled and reported by the cabinet shall include the median charge and other percentiles to describe the typical charges for all of the patients treated by a provider and the total number of patients represented by all charges, and shall be risk-adjusted.
    3. The report shall clearly identify the sources of data used in the report and explain limitations of the data and why differences between provider charges may be misleading. Every provider that is specifically identified in any report shall be given thirty (30) days to verify the accuracy of its data prior to public release and shall be afforded the opportunity to submit comments on its data that shall be included on the Web site and as part of any printed report of the data.
    4. The cabinet shall only provide linkages to organizations that publicly report comparative-charge data for Kentucky providers using data for all patients treated regardless of payor source, which may be adjusted for outliers, is risk-adjusted, and meets the requirements of paragraph (c) of this subsection.
    1. The cabinet shall make information available on its Web site at least annually describing quality and outcome measures in understandable language with sufficient explanations to allow consumers to draw meaningful comparisons between every hospital and ambulatory facility in the Commonwealth and other provider groups as relevant data becomes available. (2) (a) The cabinet shall make information available on its Web site at least annually describing quality and outcome measures in understandable language with sufficient explanations to allow consumers to draw meaningful comparisons between every hospital and ambulatory facility in the Commonwealth and other provider groups as relevant data becomes available.
      1. The cabinet shall utilize only national quality indicators that have been endorsed and adopted by the Agency for Healthcare Research and Quality, the National Quality Forum, or the Centers for Medicare and Medicaid Services; or (b) 1. The cabinet shall utilize only national quality indicators that have been endorsed and adopted by the Agency for Healthcare Research and Quality, the National Quality Forum, or the Centers for Medicare and Medicaid Services; or
      2. The cabinet shall provide linkages only to the following organizations that publicly report quality and outcome measures on Kentucky providers:
        1. The Centers for Medicare and Medicaid Services;
        2. The Agency for Healthcare Research and Quality;
        3. The Joint Commission; and
        4. Other organizations that publicly report relevant outcome data for Kentucky providers.
    2. The cabinet shall utilize or refer the general public to only those nationally endorsed quality indicators that are based upon current scientific evidence or relevant national professional consensus and have definitions and calculation methods openly available to the general public at no charge.
  1. Any report the cabinet disseminates or refers the public to shall:
    1. Not include data for a provider whose caseload of patients is insufficient to make the data a reliable indicator of the provider’s performance;
    2. Meet the requirements of subsection (1)(c) of this section;
    3. Clearly identify the sources of data used in the report and explain the analytical methods used in preparing the data included in the report; and
    4. Explain any limitations of the data and how the data should be used by consumers.
  2. The cabinet shall report at least biennially, no later than October 1 of each odd-numbered year, on the special health needs of the minority population in the Commonwealth as compared to the population in the Commonwealth as compared to the population at large. The report shall contain an overview of the health status of minority Kentuckians, shall identify the diseases and conditions experienced at disproportionate mortality and morbidity rates within the minority population, and shall make recommendations to meet the identified health needs of the minority population.
  3. The report required under subsection (4) of this section shall be submitted to the Interim Joint Committees on Appropriations and Revenue and Health and Welfare and to the Governor.

HISTORY: Enact. Acts 1994, ch. 512, Part 2, § 10, effective July 15, 1994; 1996, ch. 371, § 29, effective July 15, 1996; 1998, ch. 426, § 421, effective July 15, 1998; 2005, ch. 99, § 476, effective June 20, 2005; 2008, ch. 71, § 4, effective July 15, 2008; 2015 ch. 9, § 3, effective June 24, 2015; 2017 ch. 80, § 49, effective June 29, 2017.

Legislative Research Commission Note.

(7/15/2008). The internal numbering of subsections (1) and (2) of this section has been altered by the Reviser of Statutes from the numbering in 2008 Ky. Acts ch. 71, sec. 4, under the authority of KRS 7.136 .

Research References and Practice Aids

Northern Kentucky Law Review.

Costich, The Kentucky Health Reform Act, 22 N. Ky. L. Rev. 381 (1995).

Fee Disclosure for Providers

216.2940. Purpose of KRS 216.2940 to 216.2947. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1994, ch. 512, Part 3, § 11, effective July 15, 1994) was repealed by Acts 1996, ch. 371, § 64, effective July 15, 1996.

216.2941. Definition of “health care recipient” for KRS 216.2943. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1994, ch. 512, Part 3, § 12, effective July 15, 1994) was repealed by Acts 1996, ch. 371, § 64, effective July 15, 1996.

216.2943. Posting of maximum fees, selling prices, and daily charges for rooms — Exception — Prohibition against charging in excess of quoted amount. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1994, ch. 512, Part 3, § 13, effective July 15, 1994) was repealed by Acts 1996, ch. 371, § 64, effective July 15, 1996.

216.2945. List of charges or fees for services, procedures, or tests to be submitted to board — Duties of board — Authority for administrative regulations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1994, ch. 512, Part 3, § 14, effective July 15, 1994) was repealed by Acts 1996, ch. 371, § 64, effective July 15, 1996.

216.2947. Penalties for violations of KRS 216.2940 to 216.2947. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1994, ch. 512, Part 3, § 15, effective July 15, 1994) was repealed by Acts 1996, ch. 371, § 64, effective July 15, 1996.

216.2949. Right to receive prior written statement of provider’s charges for services and reimbursement to be paid provider — Disclosure of reimbursement paid. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1994, ch. 512, Part 3, § 16, effective July 15, 1994) was repealed by Acts 1996, ch. 371, § 64, effective July 15, 1996.

Miscellaneous Health Care Provisions

216.2950. Self-referral restrictions — Offenses.

  1. Except as otherwise provided in KRS 205.510 to 205.630 , no provider shall knowingly solicit, receive, or offer any remuneration (including any kickback, bribe, or rebate) for furnishing medical assistance benefits or in return for purchasing, leasing, ordering, or arranging for or recommending purchasing, leasing, or ordering any goods, facility, service, or item for which payment may be received from Medicare or Medicaid.
    1. No provider shall knowingly make, offer, or receive a payment, a rebate of a fee, or a charge for referring a patient to another provider for furnishing of Medicare or Medicaid benefits. (2) (a) No provider shall knowingly make, offer, or receive a payment, a rebate of a fee, or a charge for referring a patient to another provider for furnishing of Medicare or Medicaid benefits.
    2. Any conduct or activity which does not violate or which is protected under the provisions of 42 U.S.C. sec. 1395 nn or 42 U.S.C. sec. 1320 A-7B(b), as amended, or federal regulations promulgated under those statutes, shall not be deemed to violate the provisions of this section and the conduct or activity shall be accorded the same protections allowed under federal law and regulation. Any conduct of activity by any provider which violates the provisions of 42 U.S.C. sec. 1395 nn or 42 U.S.C. sec. 1320 A-7B(b), as amended, where Medicare and Medicaid payment is involved, shall be deemed to violate the provisions of this section.
  2. Any person who violates subsection (1) or (2) of this section shall be guilty of a Class A misdemeanor unless the combination or aggregation of offenses is valued at three hundred dollars ($300) or more, in which case it shall be a Class D felony. In addition to any other penalty authorized by law, any person who violates the provisions of subsection (2)(a) of this section shall not be entitled to bill or collect from the patient or any third-party payor and shall repay any payments due the Commonwealth for services provided which were related to the referral.

History. Enact. Acts 1994, ch. 512, Part 5, § 18, effective July 15, 1994; 1996, ch. 371, § 22, effective July 15, 1996.

Research References and Practice Aids

Cross-References.

Sentence of imprisonment for felony, KRS 532.060 .

Sentence of imprisonment for misdemeanor, KRS 532.090 .

Northern Kentucky Law Review.

Costich, The Kentucky Health Reform Act, 22 N. Ky. L. Rev. 381 (1995).

216.2960. Pilot projects for twenty-four hour health coverage — Authority for administrative regulations. [Repealed]

History. Enact. Acts 1994, ch. 512, Part 6, § 19, effective July 15, 1994; 1996, ch. 371, § 21, effective July 15, 1996; 2010, ch. 24, § 320, effective July 15, 2010; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216.2970. Auditory screening of infants at hospitals and birthing centers — Forwarding of reports.

  1. As a condition of licensure or relicensure, all hospitals offering obstetric services and alternative birthing centers with at least forty (40) births per year shall provide an auditory screening for all infants using one (1) of the methods approved by the Office for Children with Special Health Care Needs by administrative regulation promulgated in accordance with KRS Chapter 13A.
  2. An auditory screening report that indicates a finding of potential hearing loss shall be forwarded by the hospital or alternative birthing center within twenty-four (24) hours of receipt to the:
    1. Attending physician or health care provider;
    2. Parents;
    3. Office for Children with Special Health Care Needs for evaluation or referral for further evaluation in accordance with KRS 211.647 ; and
    4. Audiological assessment and diagnostic center approved by the office if a follow-up assessment has been scheduled prior to the infant’s discharge from the hospital.
  3. An auditory screening report that does not indicate a potential hearing loss shall be forwarded within one (1) week to the Office for Children with Special Health Care Needs with no information that personally identifies the child.

History. Enact. Acts 2000, ch. 308, § 11, effective July 14, 2000; 2009, ch. 102, § 3, effective June 25, 2009.

Legislative Research Commission Notes.

(8/23/2019). In 2018 Ky. Acts ch. 114, sec. 1, the General Assembly renamed the “Commission for Children with Special Health Care Needs” as the “Office for Children with Special Health Care Needs.” A reference to that “commission” was changed to “Office” in subsection (2)(d) of this statute. This name correction should have been addressed when 2018 Ky. Acts ch. 114 was codified, but it wasn't. This change is being made now under the authority of KRS 7.136(2).

(7/14/2018). Under the authority of KRS 7.136(2), one or more references to the “Commission for Children with Special Health Care Needs” in this statute have been changed in codification to the “Office for Children with Special Health Care Needs” to reflect the renaming of the commission by the General Assembly in 2018 Ky. Acts ch. 114.

216.2980. Hospice, palliative care, and end-of-life services providers to have policies and procedures for deactivation or sequestration and disposal of controlled substances upon death of patient or discontinuance of prescription — Notice — Written agreement — Witness statement.

  1. Any provider of hospice, palliative care, or end-of-life services shall have written policies and procedures for the deactivation or sequestration and disposal of Schedule II, III, IV, or V controlled substances prescribed to a patient when a prescription is discontinued or upon the patient’s death by the entity or person pronouncing the death.
  2. Any provider of hospice, palliative care, or end-of-life services shall provide a copy of the written policy and procedures for the management and the deactivation or sequestration and disposal of Schedule II, III, IV, or V controlled substances prescribed to a patient when a prescription is discontinued or upon the patient’s death, to the patient or the patient’s legal representative, and the provider shall discuss the policy and procedures with the patient or the patient’s legal representative. The patient or the patient’s legal representative shall be requested to sign an agreement to this policy.
  3. In an effort to reduce illegal diversion of Schedule II, III, IV, or V controlled substances, the agreement to the written policy and procedures required under subsection (2) of this section shall inform the patient or the patient’s legal representative that if the patient or the patient’s legal representative refuses to agree to the deactivation or sequestration and disposal when a prescription is discontinued or upon the death of the patient, local law enforcement shall be notified of the refusal by the hospice, palliative care, or end-of-life services provider or the entity or person pronouncing death.
  4. The deactivation or sequestration and disposal of Schedule II, III, IV, or V controlled substances prescribed to a patient when a prescription is discontinued or upon the patient’s death shall be completed by the entity or person pronouncing death and witnessed by an adult. The witness shall sign a statement that he or she witnessed the deactivation or sequestration and disposal.
  5. The deactivation or sequestration and disposal methods of Schedule II, III, IV, or V controlled substances used by the entity or person pronouncing death shall comply with the United States Food and Drug Administration’s recommendations for the safe disposal of unused medicines or shall be another safe deactivation or sequestration and disposal method.

HISTORY: 2018 ch. 172, § 1, effective July 14, 2018; 2020 ch. 36, § 37, effective July 15, 2020.

Suicide Assistance

216.300. Definitions for KRS 216.300 to 216.308.

As used in KRS 216.300 to 216.308 , unless the context otherwise requires:

  1. “Licensed health care professional” means a physician and surgeon, podiatrist, osteopath, osteopathic physician and surgeon, physician assistant, nurse, dentist, or pharmacist.
  2. “Suicide” means the act or instance of taking one’s own life voluntarily and intentionally.

History. Enact. Acts 1994, ch. 269, § 1, effective July 15, 1994.

Compiler’s Notes.

Acts 1994, ch. 269 became law without the Governor’s signature, April 8, 1994.

216.302. Causing a suicide — Assisting in a suicide.

  1. A person commits a Class C felony when the person knowingly by force or duress causes another person to commit or to attempt to commit suicide.
  2. A person commits a Class D felony when the person, with the purpose of assisting another person to commit or to attempt to commit suicide, knowingly and intentionally either:
    1. Provides the physical means by which another person commits or attempts to commit suicide; or
    2. Participates in a physical act by which another person commits or attempts to commit suicide.

History. Enact. Acts 1994, ch. 269, § 2, effective July 15, 1994.

Compiler’s Notes.

Acts 1994, ch. 269 became law without the Governor’s signature, April 8, 1994.

Research References and Practice Aids

Cross-References.

Sentence of imprisonment for felony, KRS 532.060 .

216.304. Actions of licensed health care professional that are not violative of KRS 216.302.

  1. A licensed health care professional who administers, prescribes, or dispenses medications or procedures to relieve another person’s pain or discomfort, even if the medication or procedure may hasten or increase the risk of death, shall not be deemed to have violated KRS 216.302 unless the medications or procedures are knowingly and intentionally administered, prescribed, or dispensed to cause death.
  2. A licensed health care professional who withholds or withdraws a life-sustaining procedure in compliance with KRS 311.622 to 311.644 or KRS 311.970 to 311.976 shall not be deemed to have violated KRS 216.302 .

History. Enact. Acts 1994, ch. 269, § 3, effective July 15, 1994.

Compiler’s Notes.

Acts 1994, ch. 269 became law without the Governor’s signature, April 8, 1994.

216.306. Injunctive relief against person believed to be about to cause or assist in a suicide.

A cause of action for injunctive relief may be maintained against any person who is reasonably believed to be about to violate or who is in the course of violating KRS 216.302 by any person who is:

  1. The spouse, parent, child, or sibling of the person who would commit suicide;
  2. Entitled to inherit from the person who would commit suicide;
  3. A health care provider of the person who would commit suicide; or
  4. A public official with appropriate jurisdiction to prosecute or enforce the laws of this Commonwealth.

History. Enact. Acts 1994, ch. 269, § 4, effective July 15, 1994.

Compiler’s Notes.

Acts 1994, ch. 269 became law without the Governor’s signature, April 8, 1994.

216.308. Revocation of license of health care professional assisting in a suicide.

The licensing agency which issued a license or certification to a licensed health care professional who assists in a suicide in violation of KRS 216.302 may revoke license or certification of that person upon receipt of:

  1. A copy of the record of the criminal conviction or plea of guilty for a felony in violation of KRS 216.302 ; or
  2. A copy of the record of a judgment of contempt of court for violating an injunction issued pursuant to KRS 216.306 .

History. Enact. Acts 1994, ch. 269, § 5, effective July 15, 1994.

Compiler’s Notes.

Acts 1994, ch. 269 became law without the Governor’s signature, April 8, 1994.

Hospital Districts

216.310. Purpose of law.

This legislation is designed to permit a county to form a hospital district or two (2) or more counties to join together in the formation of a hospital district in order to provide a broader basis for local support of hospitals and related health facilities including supportive services and the training and education of health personnel. The General Assembly recognizes that hospitals can be more effective if they are of sufficient scope to marshal the skills and manpower necessary to provide the advantages of modern medicine and that the development of high-speed highways makes possible accessibility to such modern hospitals permitting service to a larger geographical area. It is the intent of KRS 216.310 to 216.360 to provide for the integration of the complex functions of health and hospital care for the collective benefit of all the people within an area by providing a method to extend the geographical territory to larger regions.

History. Enact. Acts 1968, ch. 176, § 1, effective June 13, 1968.

NOTES TO DECISIONS

1.Applicability.

The imposition of the provisions of KRS Chapters 216 and 216B and all their attendant regulations upon a private religious convalescent retirement home operated exclusively for the benefit of a religious order was an unconstitutional infringement upon the latter’s religious liberty, as well as an unreasonable intrusion of a governmental police power. Cabinet for Human Resources Kentucky Health Facilities v. Provincial Convent of Good Shepherd, Inc., 701 S.W.2d 137, 1985 Ky. App. LEXIS 616 (Ky. Ct. App. 1985).

Opinions of Attorney General.

If the board of directors of a hospital joined the county employees retirement system and a hospital district was subsequently formed which took in the hospital, the decision to join the retirement system would not be binding on that or any other hospital in the new district. OAG 70-789 .

Under the provisions of KRS 69.210 and 216.310 to 216.360 , the county attorney is not required to represent the hospital district and the District Board created pursuant to KRS 216.310 since the district board members are not included among “the several county officers” mentioned in KRS 69.210 and the district board is a separate, autonomous governmental unit with the power to control the affairs of the district and with the specific power to employ attorneys to represent it. OAG 75-207 .

Where a hospital district has been organized pursuant to KRS 216.310 to 216.360 , the hospital district board, in which the governing power of the district has been vested, is required by statute to advertise for bids in the newspaper if the amount of the expenditure involved exceeds $5,000 and if an emergency does not exist and professional services or perishables are not involved. OAG 78-814 .

KRS 216.310 to 216.360 relate to a hospital district, but not to a “county hospital” established under KRS 216.010 (repealed), 67.080 or 67.083(3)(d). OAG 79-495 .

A hospital district organized pursuant to KRS 216.310 to 216.360 is a district for purposes of KRS 65.070 requiring special districts to file annual statements. OAG 82-631 .

A hospital district organized and functioning pursuant to the terms and provisions of KRS 216.310 to 216.360 is required to publish an annual statement consistent with the requirements of KRS 65.070(1)(c) in lieu of the annual financial statement required by KRS 424.220 . OAG 82-631 .

There is no statutory prohibition that would prevent an employee of a county hospital district, established pursuant to this section and related statutes, from becoming a candidate for the general assembly. OAG 84-204 .

216.313. Definitions for KRS 216.310 to 216.360.

As used in KRS 216.310 to 216.360 :

  1. “Hospital” means a place devoted primarily to the maintenance and operation of facilities for the diagnosis, treatment, or care, for more than twenty-four (24) hours, of two (2) or more nonrelated individuals suffering from illness, disease, injury, deformity, or a place including nursing and convalescent homes and all institutions for the care of the sick, devoted primarily to providing, for more than twenty-four (24) hours, obstetrical or other medical or nursing care for two (2) or more nonrelated individuals;
  2. “District” means hospital district;
  3. “Board” means the governing body of a hospital district;
  4. “Secretary” means the secretary of the Cabinet for Health and Family Services or his designee; and
  5. “Medical service area” means the geographic territory from which patients come or are expected to come to existing or proposed health facilities as defined by the Cabinet for Health and Family Services.

History. Enact. Acts 1968, ch. 176, § 2; 1974, ch. 74, Art. VI, § 107(1), (2); 1998, ch. 426, § 422, effective July 15, 1998; 2005, ch. 99, § 477, effective June 20, 2005.

216.315. Secretary of the Cabinet for Health and Family Services as secretary of hospital districts.

The secretary of the Cabinet for Health and Family Services shall, in addition to his other duties, act as secretary of hospital districts, and is vested with jurisdiction, power, and authority, when the conditions set forth in KRS 216.317 exist, to establish a hospital district within a medical service area as established by the secretary of the Cabinet for Health and Family Services.

History. Enact. Acts 1968, ch. 176, § 3; 1974, ch. 74, Art. VI, § 107(1), (2) and (21); 1998, ch. 426, § 423, effective July 15, 1998; 2005, ch. 99, § 478, effective June 20, 2005.

216.317. Creation of hospital district — Tax levy and collection.

  1. A hospital district may be created in accordance with the procedures of KRS 65.182 and 216.320 .
  2. Upon the creation of a hospital district, as provided in KRS 65.182 and 216.320 , the district shall constitute and be a taxing district within the meaning of Section 157 of the Constitution of Kentucky and the county shall be a participating county in the district. In no event shall the special ad valorem tax imposed for the maintenance and operation of the district exceed ten cents ($0.10) on each one hundred dollars ($100) of the assessed valuation of all property in the county. A hospital taxing district may be created with an ad valorem tax rate levy of zero cents ($0.00) on the assessed valuation of the property in the district.
  3. All special ad valorem taxes authorized by KRS 216.310 to 216.360 shall be collected in the same manner as are other county ad valorem taxes in each county affected and shall be turned over to the board as the governing body of the district. The special ad valorem tax shall be in addition to all other ad valorem taxes.

History. Enact. Acts 1968, ch. 176, § 4; 1978, ch. 384, § 351, effective June 17, 1978; 1982, ch. 360, § 60, effective July 15, 1982; 1984, ch. 100, § 19, effective July 13, 1984; 1994, ch. 62, § 1, effective July 15, 1994.

NOTES TO DECISIONS

1.Statement of Amount of Tax.

At the time an election was called to determine whether a hospital district should be established and a special ad valorem tax levied it was appropriate to provide that the tax not exceed 10¢ on each $100 worth of property as the exact amount of the tax to be imposed need not be stated at that time. Dunn v. Marshall County Hospital Dist., 543 S.W.2d 767, 1976 Ky. LEXIS 24 ( Ky. 1976 ).

Opinions of Attorney General.

A hospital district established pursuant to KRS 216.310 to 216.360 is intended to embrace the entire county or counties. OAG 70-477 .

The signature of only one more voter than one half of the number of voters who voted in the last election is needed for the petition. OAG 70-477 .

Under this section, regardless of whether the voting method or the petition method is used, a hospital district is created which constitutes a separate taxing district. The method of establishing the district is reasonably suited to its purpose and does not contravene Ky. Const., § 157, particularly since the petition method is equivalent to the voting method since a majority of the voters must sign the petition. OAG 70-816 .

A chief of police is a municipal officer and cannot serve on a county hospital board of a county hospital operated as part of a hospital district organized under KRS 216.310 to 216.360 nor of a hospital created under KRS 216.010 (repealed). OAG 74-108 .

Where a hospital district is created pursuant to this section and is established by the secretary of human resources pursuant to KRS 216.320 so that it is a “separate taxing district” under Ky. Const., § 157, but the fiscal court has not levied an ad valorem tax to fund its operations, the district cannot constitutionally enter into a contract for a period in excess of one year obligating it to pay a debt which cannot be funded from revenues available in the year in which the obligation is created, unless it is specifically approved, pursuant to Ky. Const., § 157, by two-thirds of the voters residing in the taxing district. OAG 81-128 .

A county hospital district, through its board, is responsible for paying that portion of the premium on the general revenue bond, pursuant to KRS 134.230 , which is practicably applicable to that portion of the bond coverage reflecting taxes collected by the sheriff for the hospital district. Also the hospital district board has the duty of indicating to the county judge/executive the approximate amount of hospital district taxes which will be in the possession of the sheriff under the sheriff’s reporting scheme for a particular tax year, in order that the general revenue bond may adequately reflect coverage embracing such hospital district taxes collected. OAG 82-609 .

216.318. Alternative method for establishing hospital district. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 208, § 1; 1982, ch. 360, § 61) was repealed by Acts 1984, ch. 100, § 30.

216.319. Requirements for district established under KRS 216.318. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 208, § 2) was repealed by Acts 1984, ch. 100, § 30.

216.320. Notification of secretary — Effect of notification.

Upon the completion of all procedures necessary for the creation of a taxing district as provided in KRS 65.182 , the fiscal court shall notify the secretary and the secretary shall establish the district within the medical service area in which that county is located, and shall certify his act to the county judge/executive and county clerk of each county, which is a part of the district, the state local finance officer and to the Secretary of State. The district shall then be a taxing district within the meaning of Section 157 of the Kentucky Constitution for the carrying out of the purposes for which the district was created, and for executing the powers with which it is vested. The county submitting the resolution to the secretary shall be a participating county in the district. The remaining counties in the medical service area may become participating counties upon compliance with the requirements prescribed in KRS 216.317 .

History. Enact. Acts 1968, ch. 176, § 5; 1974, ch. 74, Art. VI, § 107(21); 1978, ch. 384, § 352, effective June 17, 1978; 1984, ch. 100, § 20, effective July 13, 1984.

Opinions of Attorney General.

Where a hospital district is created pursuant to KRS 216.317 and is established by the secretary of human resources (now health and family services) pursuant to this section so that it is a “separate taxing district” under Ky. Const., § 157, but the fiscal court has not levied an ad valorem tax to fund its operations, the district cannot constitutionally enter into a contract for a period in excess of one year obligating it to pay a debt which cannot be funded from revenues available in the year in which the obligation is created, unless it is specifically approved, pursuant to Ky. Const., § 157, by two-thirds of the voters residing in the taxing district. OAG 81-128 .

A county hospital district is a political subdivision of Kentucky pursuant to KRS 61.420 and this section so that its employees are “employees” under subsection (3) of KRS 61.420 and thus subject to the jurisdiction of the state agency for social security. OAG 81-196 .

216.323. District board — Membership — Number, how determined — Removal of members.

  1. Where there is only one (1) participating county in the district, the county judge/executive, with the approval of the fiscal court of the participating county shall appoint five (5) members of the district board. Where there are two (2) or more counties participating in the district the board shall consist of at least one (1) but not more than four (4) persons from each participating county, the total membership of the board to consist of not less than five (5) persons. Where a participating county in a district in which more than one (1) county is participating has a population of seventy-five thousand (75,000) or less, that county shall be allowed one (1) board member. Where a participating county in a district in which one (1) or more county is participating has a population in excess of seventy-five thousand (75,000) the county shall be allowed a board member for each forty thousand (40,000) or a portion thereof, of population in excess of seventy-five thousand (75,000) of population, but not to exceed four (4) members in all.
  2. Where, after each county in the district has appointed the number of board members that it is allowed to appoint, the board consists of fewer than five (5) members the secretary shall recommend a number of persons from the district at large suitable for appointment to the board equal to twice the difference between the number already appointed and five (5). The board members appointed by the county judges/executive shall elect to the membership on the board one-half (1/2) of those recommended by the secretary. The length of the term of no member shall be determined as required by KRS 216.325 until the full membership of the board has been appointed. The successors of the members from the district at large shall be appointed in the same manner as the original members from the district at large. Population shall be determined by the most recent decennial report of the United States Census Bureau.
  3. A member of the board may be removed from office as provided by KRS 65.007 .

History. Enact. Acts 1968, ch. 176, § 6; 1974, ch. 74, Art. VI, § 107(21); 1980, ch. 18, § 21, effective July 15, 1980.

Opinions of Attorney General.

Since there is no effective removal statute, and since the power of removal is not incident to the power of appointment, the fiscal court has no authority to remove hospital district board members. OAG 78-339 .

Because the county judge/executive’s power is purely executive and administrative, he may not appoint the members of the hospital board, even where such appointments would be subject to the approval of the fiscal court, since that power is vested only in the fiscal court. OAG 78-375 (modified by OAG 78-466 to the extent of conflict).

The general procedure of appointing and removing members of boards created by statute is governed by KRS 67.710 (8), whereby only the county judge/executive can nominate for appointment and removal a particular individual member of the board, subject to the acceptance or rejection by the fiscal court as a body; since KRS 67.710 is the later expression of the legislative will, it amends this section by implication. OAG 78-466 (modifying OAG 78-375 to the extent of conflict).

A county administrative code regulation which grants the county judge/executive the right to appoint a person to the district hospital board on a temporary basis not to exceed one year without approval of the fiscal court where the fiscal court has rejected all of the nominations submitted by the county judge/executive is invalid and in conflict with this section and subsection (8) of KRS 67.710 , since these statutes do not authorize the county judge/executive under any circumstances to appoint any person to fill the position, temporarily or otherwise, without the formal approval of the fiscal court. OAG 81-29 .

The county judge/executive must make a nomination to the district hospital board member position, and the fiscal court must, as a body, either accept or reject the nomination; however, he can only submit one person’s name at a time for the particular nomination and it is legally impossible for the county judge/executive to appoint a district hospital board member without approval of a majority of the fiscal court. OAG 81-29 .

Where fiscal court does not approve nomination of district hospital board member by county judge/executive, the present member can continue in that post under subsection (1) of KRS 216.325 until another successor is nominated and approved; however, the fiscal court cannot, under Const., § 2, arbitrarily fail to approve a successor so as to allow the incumbent member to hold office for a substantial length of time since this section imposes upon them a strongly implied duty to reach agreement. OAG 81-29 .

216.325. Terms of members — Vacancies.

  1. One-third (1/3) of those persons first appointed to the board shall serve for a term of two (2) years, one-third (1/3) for a term of three (3) years, one-third (1/3) for a term of four (4) years. Where the board consists of a number not divisible by three (3), one-third (1/3) of the next higher number divisible by three (3), shall serve for a term of two (2) years, one-third (1/3) for a term of three (3) years and the remaining number shall serve for a term of four (4) years. Thereafter, as their terms expire, their successors shall be appointed in the same manner, but for a term of four (4) years each. The members shall hold office until their respective successors are appointed and qualified. No member of the board shall serve more than two (2) successive four (4) year terms.
  2. Any vacancy occurring in the terms of office of members shall be filled for the unexpired term by the fiscal court by appointment for each county in which the vacancy occurred; or by the board by appointment on recommendation of the secretary of two (2) names for each vacancy which occurs for members of the district at large.

History. Enact. Acts 1968, ch. 176, § 7; 1974, ch. 74, Art. VI, § 107(21).

Opinions of Attorney General.

Where fiscal court does not approve nomination of district hospital board member by county judge/executive, the present member can continue in that post under subsection (1) of this section until another successor is nominated and approved; however, the fiscal court cannot, under Const., § 2, arbitrarily fail to approve a successor so as to allow the incumbent member to hold office for a substantial length of time since KRS 216.323 imposes upon them a strongly implied duty to reach agreement. OAG 81-29 .

Where a person is appointed as a board member to fill out a four-year term of a predecessor and then immediately after that term ends he is appointed to a regular or full four-year term, the filling out of a predecessor’s four-year term does not count in applying the rule prohibiting more than two successive four-year terms; the “two (2) successive four-year terms” refers clearly to an appointment of the same person to fill two successive regular four-year terms. OAG 84-160 .

216.327. Qualifications of members.

The board of the district shall be composed of residents of the county or district from which appointed. No person shall be appointed to the board of any hospital district who has any financial or professional interest in the establishment or continued existence thereof or who is a member of the governing body or an officer or an employee of a municipality or county within the district except that previous membership on any existing hospital board shall not preclude a person’s appointment to the board of a hospital district.

History. Enact. Acts 1968, ch. 176, § 8.

Opinions of Attorney General.

A chief of police is a municipal officer and cannot serve on a county hospital board of a county hospital operated as part of a hospital district organized under KRS 216.310 to 216.360 nor of a hospital created under KRS 216.010 (now repealed). OAG 74-108 .

216.330. Members to be reimbursed for expenses.

The members of the board shall not receive compensation for their services but shall be reimbursed for their actual expenses necessarily incurred in the performance of their duties, upon vouchers duly approved by the board, signed by the secretary and countersigned by the president.

History. Enact. Acts 1968, ch. 176, § 9.

216.333. Board as corporate body — Seal — Officers — Bond of treasurer.

The board shall be a body corporate under the name and style of “ . . . . . . . . . . . . . . . . . . . . Hospital District Board of Trustees.” The members shall, as soon as possible after their appointment, adopt a seal and organize by electing from their number a president, a secretary and a treasurer, each to serve for a term of two (2) years and until his successor is elected and qualified. The treasurer shall give bond to the Commonwealth for the faithful performance of his duties, in such sum and form and with such sureties as the board shall approve. A majority of the board shall constitute a quorum.

History. Enact. Acts 1968, ch. 176, § 10.

216.335. Powers of board.

The government of the hospital district shall be vested in the board which shall have general control of the property and affairs of the district and shall have all the powers necessary to carry out the purposes of KRS 216.310 to 216.360 including, but not confined to, the following:

  1. To construct, acquire, add to, maintain, operate, develop and regulate, sell and convey all lands, property rights, equipment, hospital facilities and systems for the maintenance of hospitals, buildings, structures and any other facilities;
  2. To exercise the right of eminent domain for the purposes of the district except that no hospital district shall have the right of eminent domain against any hospital, clinic or sanatorium operated by a nonprofit charitable, religious or public organization, or against any private hospital, clinic or sanatorium;
  3. To receive, acquire, hold, manage, expend, sell and convey donations and bequests of real and personal property for hospital purposes within the district;
  4. To establish and maintain a public hospital or hospitals in the district and where necessary make provision for education of needed personnel to operate such hospitals;
  5. To lease existing hospital or hospitals and equipment and other property used in connection with the operation of a hospital, and to pay such rental therefor as the board shall deem proper;
  6. To enter into contracts and agreements with any person or corporation, public or private, affecting the affairs of the district, including contracts with cities, counties, other municipalities, the Commonwealth or the United States of America and any of its agents or instrumentalities;
  7. To enter into contracts with a nonprofit corporation acting as a governmental agency for the construction and equipping of a hospital or hospitals, and the leasing of the same to the district;
  8. To sue and be sued;
  9. To make contracts, employ an administrator, attorneys and other technical or professional assistance and all other employees as the needs of the district may require, and to prescribe their duties and compensation;
  10. To have perpetual existence;
  11. To borrow money on the credit of the board in anticipation of the revenue to be derived from anticipated revenue from user fees or from taxes levied by the district for the fiscal year in which the money is borrowed, and to pledge the taxes levied for the district for the payment of the principal and interest of the loan;
  12. To establish bylaws it deems necessary or expedient to define the duties of officers, assistants or employees, to fix the conditions of admission to the hospitals of the district, and the support and discharge of patients, and to conduct in a proper manner the professional and business affairs of the district;
  13. To establish and enforce a suitable system of rules and regulations for the internal government, discipline and management of the hospitals of the district;
  14. To determine annually the amount of tax, not to exceed ten cents ($0.10) per one hundred dollars ($100) of property assessed for taxation, to be levied upon the taxable property of the district, for the purposes of the district, and to certify to the fiscal court of each county in the district and to each county clerk for inclusion on the tax bills of property owners in the district.

History. Enact. Acts 1968, ch. 176, § 11; 1978, ch. 384, § 353, effective June 17, 1978.

NOTES TO DECISIONS

1.Outside Contracts.

A hospital district may enter into contracts with a nonprofit holding corporation for financing the facilities as long as the corporation is “acting” as a governmental agency for the construction and equipping of the hospital. Dunn v. Marshall County Hospital Dist., 543 S.W.2d 767, 1976 Ky. LEXIS 24 ( Ky. 1976 ).

Opinions of Attorney General.

A county hospital district, through its board, is responsible for paying that portion of the premium on the general revenue bond, pursuant to KRS 134.230 , which is practicably applicable to that portion of the bond coverage reflecting taxes collected by the sheriff for the hospital district. Also the hospital district board has the duty of indicating to the county judge/executive the approximate amount of hospital district taxes which will be in the possession of the sheriff under the sheriff’s reporting scheme for a particular tax year, in order that the general revenue bond may adequately reflect coverage embracing such hospital district taxes collected. OAG 82-609 .

The hospital district board is authorized to engage in reasonable contracts with physicians and surgeons, relative to their hospital practice, which contracts are calculated to attract physicians to the county and to promote the district hospital program and which would subserve the purpose of the hospital district’s law as explicitly stated in KRS 216.310 . OAG 84-160 .

216.336. Fiscal court’s determination on proposed tax rate levy by certain districts created with zero cents as initial tax rate levy — Applicability of KRS 132.023 to tax rate changes.

Notwithstanding any other provision of KRS 216.310 to 216.360 to the contrary, the board of a hospital district created after January 1, 1994, proposing to levy a tax rate, in which the initial tax rate levy was zero cents ($0.00), shall submit the proposed tax rate levy to the fiscal court in the district for that county’s fiscal court consideration. The fiscal court may either approve or deny the proposed tax rate levy. Any tax rate change approved by the board or by the county fiscal court shall be subject to the provisions of KRS 132.023 .

History. Enact. Acts 1994, ch. 62, § 2, effective July 15, 1994.

216.337. Plans for hospital needs of district.

The board, in cooperation with regional or state comprehensive health planning councils, where established, shall plan for the unmet hospital needs in the district.

History. Enact. Acts 1968, ch. 176, § 12.

216.340. Treasurer of board, duties.

The treasurer of the board shall:

  1. Have the custody of all money, securities, and obligations belonging to that district, and shall disburse money only for the uses and purposes of the district and in the manner prescribed by the bylaws on itemized vouchers allowed by the board;
  2. Keep a full and accurate account of all receipts and payments in the manner directed by the bylaws, and such other accounts as the board prescribes;
  3. Render statements of accounts of the several books, funds and property in his custody whenever required by the board; and,
  4. Have the power to perform such other fiscal duties as the board may prescribe.

History. Enact. Acts 1968, ch. 176, § 13.

216.343. District records to be audited — Compliance with KRS 65A.010 to 65A.090.

  1. Every district established under KRS 216.310 to 216.360 shall at all reasonable times keep open for the inspection of the Auditor of Public Accounts all of its records and books of accounts and shall have an outside independent audit by a certified public accountant annually.
  2. Any board formed and operating under KRS 216.310 to 216.360 shall comply with the provisions of KRS 65A.010 to 65A.090 .

History. Enact. Acts 1968, ch. 176, § 14; 2013, ch. 40, § 69, effective March 21, 2013.

216.345. Fiscal year of district.

The fiscal year of a district shall commence on July 1 and close on June 30.

History. Enact. Acts 1968, ch. 176, § 15.

216.347. Annual report of board to secretary.

Within sixty (60) days after the close of each fiscal year the board shall make a written report to the secretary. A copy of this report shall be filed with the county clerk of each county within the district. The report shall contain:

  1. An itemized statement of the various sums of money received for the district;
  2. An itemized statement of expenditures from the fund;
  3. A statement of the property acquired by devise, bequests, purchase, gift, or otherwise during the fiscal year;
  4. A statement of the character of hospital services furnished to the district during the fiscal year; and
  5. Any other statistics or information requested by the Cabinet for Health and Family Services.

History. Enact. Acts 1968, ch. 176, § 16; 1974, ch. 74, Art. VI, § 107(1), (21); 1978, ch. 384, § 354, effective June 17, 1978; 1998, ch. 426, § 424, effective July 15, 1998; 2005, ch. 99, § 479, effective June 20, 2005.

216.350. Administrator, functions.

The administrator shall be the chief administrative officer of a hospital district. He shall be responsible to the board for the efficient administration of all affairs of the hospital district and he shall have power, and it shall be his duty to carry out the orders of the board, and to conduct the affairs of the district according to law.

History. Enact. Acts 1968, ch. 176, § 17.

216.353. Revenue bonds, district may issue.

Hospital districts may, in addition to all other methods provided by law, acquire, construct, and improve hospital facilities through the issuance of revenue bonds under the terms and provisions of KRS Chapter 58.

History. Enact. Acts 1968, ch. 176, § 18.

NOTES TO DECISIONS

Cited:

Dunn v. Marshall County Hospital Dist., 543 S.W.2d 767, 1976 Ky. LEXIS 24 ( Ky. 1976 ).

216.355. District board may accept federal or state grants.

The board of a hospital district may accept grants or aid from the state or federal government or any agency thereof to carry out the purpose of the district.

History. Enact. Acts 1968, ch. 176, § 19.

216.357. Dissolution of district, procedure.

A hospital district may be dissolved in the following manner:

  1. Upon determining that the district should be dissolved, the board shall unanimously adopt a resolution calling for the dissolution of the district. This resolution shall be sent to the fiscal court of each participating county for their action.
  2. Upon receipt of the resolution for dissolution each fiscal court shall take action. If the fiscal court of each participating county determines that the district shall be dissolved, they shall adopt a resolution of intent to dissolve the district within six (6) months of the receipt of such a resolution from the board.
  3. A certified copy of the order of the fiscal court along with a plan for the settlement of all outstanding obligations and debts of the district shall be filed with the secretary and with the county clerk.
  4. Upon receipt of the resolution of intent to dissolve the district and the settlement plan from the fiscal court of each county in the district, the secretary may issue a certificate of dissolution. This certificate shall be filed with the Secretary of State, the state local finance officer and the county clerk of each county in the district.
  5. The county clerk or clerks in the district, shall, upon receipt of the certificate of dissolution from the secretary, remove the tax levy from the tax bills from the property owners of the district and the district shall be dissolved.
  6. A resolution of dissolution shall not be entered within a one (1) year period from the date of the entry of the order declaring the district organized, or one (1) year from the date of final determination of any action to set aside such an order, whichever is later.

History. Enact. Acts 1968, ch. 176, § 20; 1974, ch. 74, Art. VI, § 107(21); 1978, ch. 384, § 355, effective June 17, 1978.

216.360. Winding up of affairs on dissolution — Disposition of funds.

After a district has been dissolved, the board shall proceed to terminate the affairs of the district. After payment of all obligations, all moneys remaining in the hospital district fund shall be prorated on the basis of the assessed valuation of the taxable property within the district and so credited to the general fund of the counties composing the district.

History. Enact. Acts 1968, ch. 176, § 21.

216.361. Services and facilities that a hospital may offer in counties contiguous to its hospital district.

Notwithstanding any provision of law to the contrary, hospitals located in a hospital district pursuant to KRS 216.310 to 216.360 may offer the following services and facilities in counties contiguous to the hospital district and shall obtain a certificate of need where required:

  1. Home health services;
  2. Rural health clinics;
  3. Physician office buildings;
  4. Mobile diagnostic services; and
  5. Any other service or facility where there is agreement between the hospital and a provider located in a county contiguous to the hospital district to jointly develop and operate the service or facility.

History. Enact. Acts 1998, ch. 559, § 4, effective July 15, 1998.

Rural Hospitals

216.370. Definition of “physician extender.” [Repealed]

History. Enact. Acts 1992, ch. 61, § 1, effective March 16, 1992; 2010, ch. 85, § 38, effective July 15, 2010; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216.375. Long-range strategic plan requirement — Technical assistance — Office of Rural Health. [Repealed]

History. Enact. Acts 1992, ch. 61, § 2, effective March 16, 1992; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216.378. Definitions for KRS 216.378, 216.379, and 216.380.

As used in KRS 216.378 , 216.379 , and 216.380 , the following definitions shall apply:

  1. “Rural health network” means an organization that consists of at least one (1) facility that has been or will be designated as a critical access hospital and at least one (1) hospital that furnishes acute care services.
  2. “Secretary” means the secretary of the Cabinet for Health and Family Services.

History. Enact. Acts 1998, ch. 559, § 1, effective July 15, 1998; 2005, ch. 99, § 480, effective June 20, 2005.

216.379. Authority to apply for Medicare Rural Hospital Flexibility Program — Development of rural health plan.

  1. The Cabinet for Health and Family Services shall make application to the Secretary of the United States Department of Health and Human Services to establish a Medicare Rural Hospital Flexibility Program in accordance with 42 U.S.C. sec. 1395 i-4, as amended by the Balanced Budget Act of 1997, Pub. L. 105-33.
  2. The cabinet shall develop and submit as part of its application a rural health plan that:
    1. Provides for the creation of one (1) or more rural health networks;
    2. Promotes regionalization of rural health services in the state;
    3. Improves access to hospital and other health services for rural residents of the state; and
    4. Designates rural hospitals as critical access hospitals.
  3. The secretary shall designate as a critical access hospital any facility which complies with the provisions of KRS 216.380 .

History. Enact. Acts 1998, ch. 559, § 2, effective July 15, 1998; 2005, ch. 99, § 481, effective June 20, 2005.

216.380. Critical access hospitals — Designation by secretary — Licensure — Required and authorized services — Staffing requirements — Medicaid reimbursement.

  1. The licensure category of critical access hospital is hereby created for existing licensed acute-care hospitals which qualify under this section for that status.
  2. It shall be unlawful to operate or maintain a critical access hospital without first obtaining a license from the Cabinet for Health and Family Services. An acute-care hospital converting to a critical access hospital shall not require a certificate of need. A certificate of need shall not be required for services provided on a contractual basis in a critical access hospital. A certificate of need shall not be required for an existing critical access hospital to increase its acute-care bed capacity to twenty-five (25) beds.
  3. Except as provided in subsection (4) of this section, only a hospital licensed as a general acute-care hospital may be relicensed as a critical access hospital if:
    1. The hospital is located in a county in a rural area that is:
      1. Located more than a thirty-five (35) mile drive, or, where the terrain is mountainous or only secondary roads are available, located more than a fifteen (15) mile drive, from another acute-care hospital or critical access hospital; or
      2. Certified by the secretary as a necessary provider of health care services to area residents;
    2. For the purposes of paragraph (a) of this subsection, a hospital shall be considered to be located in a rural area if the hospital is not in a county which is part of a standard metropolitan statistical area, the hospital is located in a rural census tract of a metropolitan statistical area as determined under the most recent modification of the Goldsmith Modification, or is designated by the state as a rural provider. The secretary shall designate a hospital as a rural provider if the hospital is not located in a county which has the largest county population of a standard metropolitan statistical area;
    3. Except as provided in paragraph (d) of this subsection, the hospital provides not more than twenty-five (25) acute care inpatient beds for providing acute inpatient care for a period that does not exceed, as determined on an annual, average basis, ninety-six (96) hours;
    4. If the hospital is operating swing beds under which the hospital’s inpatient hospital facilities are used for the provision of extended care services, the hospital may be designated as a critical access hospital so long as the total number of beds that may be used at any time for furnishing of either extended care services or acute inpatient services does not exceed twenty-five (25) beds. For the purposes of this section, any bed of a unit of the hospital that is licensed as a nursing facility at the time the hospital applies to the state for designation as a critical care access hospital shall not be counted.
  4. The secretary for health and family services may designate a facility as a critical access hospital if the facility:
    1. Was a hospital that ceased operations on or after ten (10) years prior to April 21, 2000; or
    2. Was a hospital that was converted to a licensed ambulatory health center or other type of licensed health clinic or health center and, as of the effective date of that conversion, meets the criteria for licensure as a critical access hospital under this subsection or subsection (3) of this section.
  5. A critical access hospital shall provide the following services:
    1. Twenty-four (24) hour emergency-room care that the secretary determines is necessary for insuring access to emergency care services in each area served by a critical access hospital; and
    2. Basic laboratory, radiologic, pharmacy, and dietary services. These services may be provided on a part-time, off-site contractual basis.
  6. A critical access hospital may provide the following services:
    1. Swing beds or a distinct unit of the hospital which is a nursing facility in accordance with KRS Chapter 216B and subject to approval under certificate of need;
    2. Surgery;
    3. Normal obstetrics;
    4. Primary care;
    5. Adult day health care;
    6. Respite care;
    7. Rehabilitative and therapeutic services including, but not limited to, physical therapy, respiratory therapy, occupational therapy, speech pathology, and audiology, which may be provided on an off-site contractual basis;
    8. Ambulatory care;
    9. Home health services which may be established upon obtaining a certificate of need; and
    10. Mobile diagnostic services with equipment not exceeding the major medical equipment cost threshold pursuant to KRS Chapter 216B and for which there are no review criteria in the State Health Plan.
  7. In addition to the services that may be provided under subsection (6) of this section, a critical access hospital may establish the following units in accordance with applicable Medicare regulations and subject to certificate of need approval:
    1. A psychiatric unit that is a distinct part of the hospital, with a maximum of ten (10) beds; and
    2. A rehabilitation unit that is a distinct part of the hospital, with a maximum of ten (10) beds notwithstanding any other bed limit contained in law or regulation.
  8. Psychiatric unit and rehabilitation unit beds operated under subsection (7) of this section shall not be counted in determining the number of beds or the average length of stay of a critical access hospital for purposes of applying the bed and average length of stay limitations under paragraph (c) of subsection (3) of this section.
  9. The following staffing plan shall apply to a critical access hospital:
    1. The hospital shall meet staffing requirements as would apply under section 1861(e) of Title XVIII of the Federal Social Security Act to a hospital located in a rural area except that:
      1. The hospital need not meet hospital standards relating to the number of hours during a day, or days during a week, in which the hospital shall be open and fully staffed, except insofar as the facility is required to make available emergency services and nursing services available on a twenty-four (24) hour basis; and
      2. The hospital need not otherwise staff the facility except when an inpatient is present; and
    2. Physician assistants and nurse practitioners may provide inpatient care within the limits of their statutory scope of practice and with oversight by a physician who is not required to be on-site at the hospital.
  10. A critical access hospital shall have a quality assessment and performance improvement program and procedures for review of utilization of services.
  11. A critical access hospital shall have written contracts assuring the following linkages:
    1. Secondary and tertiary hospital referral services which shall provide for the transfer of a patient to the appropriate level of care and the transfer of patients to the critical access hospital for recuperative care;
    2. Ambulance services;
    3. Home health services; and
    4. Nursing facility services if not provided on-site.
  12. If the critical access hospital is part of a rural health network, the hospital shall have the following:
    1. An agreement for patient referral and transfer, development, and use of communications systems including telemetry and electronic sharing of patient data, and emergency and nonemergency transportation; and
    2. An agreement for credentialing and quality assurance with a network hospital, peer review organization, or other appropriate and qualified entity identified in the state rural health plan.
  13. The Cabinet for Health and Family Services and any insurer or managed care program for Medicaid recipients that contracts with the Department for Medicaid Services for the receipt of Federal Social Security Act Title XIX funds shall provide for reimbursement of services provided to Medicaid recipients in a critical access hospital at rates that are at least equal to those established by the Federal Health Care Financing Administration or Centers for Medicare and Medicaid Services for Medicare reimbursement to a critical access hospital.
  14. The Cabinet for Health and Family Services shall promulgate administrative regulations pursuant to KRS Chapter 13A necessary to implement this section.

HISTORY: Enact. Acts 1992, ch. 61, § 3, effective March 16, 1992; 1996, ch. 299, § 3, effective July 15, 1996; 1998, ch. 426, § 425, effective July 15, 1998; 1998, ch. 559, § 3, effective July 15, 1998; 2000, ch. 439, § 1, effective April 21, 2000; 2004, ch. 56, § 1, effective April 2, 2004; 2005, ch. 99, § 57, effective June 20, 2005; 2018 ch. 143, § 2, effective July 14, 2018.

Compiler’s Notes.

Title XVIII of the Social Security Act, referred to in subsection (6), is compiled as 42 USCS § 1395 et seq.

Legislative Research Commission Note.

(7/15/98). This section was amended by 1998 Ky. Acts chs. 426 and 559. Where these Acts are not in conflict, they have been codified together. Where a conflict exists, Acts ch. 559, which is a nonrevisory Act, prevails under KRS 7.136(3).

NOTES TO DECISIONS

1. Medicaid Reimbursement.

Kentucky Cabinet for Health and Family Services had to reimburse critical access hospitals (CAH) 101% of the hospitals' reasonable cost for Medicaid outpatient laboratory services because (1) 42 U.S.C.S. § 1395m(g) governed, and (2) Ky. Rev. Stat. Ann. § 216.380(13) intended such reimbursement in a CAH to at least equal Medicare reimbursement. Commonwealth v. St. Joseph Health Sys., 521 S.W.3d 576, 2017 Ky. App. LEXIS 147 (Ky. Ct. App. 2017).

Licensing of Hospitals

216.400. Definitions for KRS 216.400 to 216.500 and subsection (2) of KRS 216.990. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 16, § 1, effective July 1, 1952) was repealed by Acts 1972, ch. 149, § 11.

Certificates of Need and Licensure of Health Facilities and Services

216.405. Definitions for KRS 216.415 to 216.485. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 149, § 3; 1974, ch. 74, Art. VI, §§ 80, 107(1); 1974, ch. 202, § 1) was repealed by Acts 1980, ch. 135, § 35. For present law see KRS 216B.015 .

216.406. Applicability of KRS 216.405(6)(a) and (b). [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 202, § 2) was repealed by Acts 1980, ch. 135, § 35. For present law see KRS 216B.015 .

216.410. Declaration of legislative purpose. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 16, § 2, effective July 1, 1952) was repealed by Acts 1972, ch. 149, § 11.

216.415. Intent of KRS 216.405 to 216.485. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 149, § 2) was repealed by Acts 1980, ch. 135, § 35, effective July 15, 1980. For present law, see KRS 216B.010 .

216.420. Application for license. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 16, § 3, effective July 1, 1952) was repealed by Acts 1972, ch. 149, § 11.

216.425. Licensure board — Membership — Functions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 149, § 4; 1974, ch. 74, Art. VI, § 81; 1974, ch. 139, § 1; 1978, ch. 117, § 19, effective February 28, 1980; 1978, ch. 154, § 17, effective June 17, 1978) was repealed by Acts 1980, ch. 135, § 35, effective July 15, 1980. For present law, see KRS 216B.025 to KRS 216B.055 .

Legislative Research Commission Note.

This section was amended in Acts 1980, ch. 119, § 6 and repealed in Acts 1980, ch. 135, § 35. The latter, being the later enactment, prevails.

216.430. Issuance and renewal of licenses — Annual reports — Hospitals operated by governmental units — Posting of licenses. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 16, § 4, effective July 1, 1952) was repealed by Acts 1972, ch. 149, § 11.

216.435. Assistance from health department and planning councils. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 149, § 5; 1974, ch. 74, Art. VI, § 107(1), (33)) was repealed by Acts 1980, ch. 135, § 35, effective July 15, 1980.

216.440. Denial, suspension or revocation of license — Hearings and review. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 16, § 5, effective July 1, 1952; 1970, ch. 92, § 73) was repealed by Acts 1972, ch. 149, § 11.

216.445. Requirement of certificate of need, license. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 149, § 6; 1974, ch. 74, Art. VI, § 107(33)) was repealed by Acts 1980, ch. 135, § 35, effective July 1, 1980. For present law, see KRS 216B.061 et seq..

216.450. Minimum standards for construction, alterations and operation of hospitals. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 16, § 6, effective July 1, 1952) was repealed by Acts 1972, ch. 149, § 11.

216.453. Emergency care — Denial due to inability to pay prohibited — Examination services for victims of sexual offenses — Minor may consent to examination. [Renumbered.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 352, § 1(1); 1978, ch. 368, § 1, effective June 17, 1978) was renumbered as KRS 216B.400 by the Reviser of Statutes pursuant to KRS 7.136 .

216.455. Exemptions from law. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 149, § 7; 1974, ch. 312, § 1; 1978, ch. 225, § 5, effective June 17, 1978) was repealed by Acts 1980, ch. 135, § 35, effective July 15, 1980. For present law, see KRS 216B.020 .

216.460. Hospital council. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 16, § 7, effective July 1, 1952; 1968, ch. 191, § 2) was repealed by Acts 1972, ch. 149, § 11.

216.465. Appeal of board’s action to circuit court. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 149, § 8) was repealed by Acts 1980, ch. 135, § 35, effective July 15, 1980. For present law, see KRS 216B.115 .

216.470. Powers of licensing agency. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 16, § 8, effective July 1, 1952) was repealed by Acts 1972, ch. 149, § 11.

216.475. Separation of project prohibited. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 149, § 10) was repealed by Acts 1980, ch. 135, § 35, effective July 15, 1980.

216.480. Judicial review of action by licensing agency. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 16, § 9, effective July 1, 1952) was repealed by Acts 1972, ch. 149, § 11.

216.485. Citation for KRS 216.405 to 216.485. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 149, § 1) was repealed by Acts 1980, ch. 135, § 35, effective July 15, 1980.

216.490. Operation of hospital without license prohibited — Exceptions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 16, § 10, effective July 1, 1952) was repealed by Acts 1972, ch. 149, § 11.

216.500. Injunction. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 16, § 12, effective July 1, 1952) was repealed by Acts 1972, ch. 149, § 11.

Long-Term Care Facilities

216.510. Definitions for KRS 216.515 to 216.530.

As used in KRS 216.515 to 216.530 :

  1. “Long-term-care facilities” means those health-care facilities in the Commonwealth which are defined by the Cabinet for Health and Family Services to be family-care homes, personal-care homes, intermediate-care facilities, nursing facilities, nursing homes, and intermediate care facilities for individuals with intellectual disabilities;
  2. “Resident” means any person who is admitted to a long-term-care facility as defined in KRS 216.515 to 216.530 for the purpose of receiving personal care and assistance; and
  3. “Cabinet” means the Cabinet for Health and Family Services.

HISTORY: Enact. Acts 1978, ch. 122, § 1, effective June 17, 1978; 1978, ch. 123, § 1, effective June 17, 1978; 1990, ch. 235, § 2, effective July 13, 1990; 1994, ch. 512, Part 12, § 89, effective July 15, 1994; 1996, ch. 371, § 62, effective July 15, 1996; 1998, ch. 426, § 426, effective July 15, 1998; 2005, ch. 99, § 482, effective June 20, 2005; 2010, ch. 141, § 25, effective July 15, 2010; 2018 ch. 143, § 3, effective July 14, 2018.

NOTES TO UNPUBLISHED DECISIONS

1.Arbitration.

Decedent’s beneficiaries did not have to arbitrate survival claims for negligence and violations of KRS 216.510 against a nursing home because (1) the decedent’s legal guardian was not appointed until after the decedent’s admission, and (2) the decedent was admitted pursuant to an emergency order excluding authority to contract for the decedent, so the guardian had no authority to agree to arbitration. HQM of Pikeville, LLC v. Collins, 2014 Ky. App. Unpub. LEXIS 1049 (Ky. Ct. App. July 18, 2014), review denied, ordered not published, 2015 Ky. LEXIS 1673 (Ky. June 3, 2015).

Cited:

Jones v. Cabinet for Human Resources, Div. for Licensure & Regulations, 710 S.W.2d 862, 1986 Ky. App. LEXIS 1074 (Ky. Ct. App. 1986).

216.515. Rights of residents — Duties of facilities — Actions.

Every resident in a long-term-care facility shall have at least the following rights:

  1. Before admission to a long-term-care facility, the resident and the responsible party or his responsible family member or his guardian shall be fully informed in writing, as evidenced by the resident’s written acknowledgment and that of the responsible party or his responsible family member or his guardian, of all services available at the long-term-care facility. Every long-term-care facility shall keep the original document of each written acknowledgment in the resident’s personal file.
  2. Before admission to a long-term-care facility, the resident and the responsible party or his responsible family member or his guardian shall be fully informed in writing, as evidenced by the resident’s written acknowledgment and that of the responsible party or his responsible family member or his guardian, of all resident’s responsibilities and rights as defined in this section and KRS 216.520 to 216.530 . Every long-term-care facility shall keep the original document of each written acknowledgment in the resident’s personal file.
  3. The resident and the responsible party or his responsible family member or his guardian shall be fully informed in writing, as evidenced by the resident’s written acknowledgment and that of the responsible party or his responsible family member, or his guardian, prior to or at the time of admission and quarterly during the resident’s stay at the facility, of all service charges for which the resident or his responsible family member or his guardian is responsible for paying. The resident and the responsible party or his responsible family member or his guardian shall have the right to file complaints concerning charges which they deem unjustified to appropriate local and state consumer protection agencies. Every long-term-care facility shall keep the original document of each written acknowledgment in the resident’s personal file.
  4. The resident shall be transferred or discharged only for medical reasons, or his own welfare, or that of the other residents, or for nonpayment, except where prohibited by law or administrative regulation. Reasonable notice of such action shall be given to the resident and the responsible party or his responsible family member or his guardian.
  5. All residents shall be encouraged and assisted throughout their periods of stay in long-term care facilities to exercise their rights as a resident and a citizen, and to this end may voice grievances and recommend changes in policies and services to facility staff and to outside representatives of their choice, free from restraint, interference, coercion, discrimination, or reprisal.
  6. All residents shall be free from mental and physical abuse, and free from chemical and physical restraints except in emergencies or except as thoroughly justified in writing by a physician for a specified and limited period of time and documented in the resident’s medical record.
  7. All residents shall have confidential treatment of their medical and personal records. Each resident or his responsible family member or his guardian shall approve or refuse the release of such records to any individuals outside the facility, except as otherwise specified by statute or administrative regulation.
  8. Each resident may manage the use of his personal funds. If the facility accepts the responsibility for managing the resident’s personal funds as evidenced by the facility’s written acknowledgment, proper accounting and monitoring of such funds shall be made. This shall include each facility giving quarterly itemized statements to the resident and the responsible party or his responsible family member or his guardian which detail the status of the resident’s personal funds and any transactions in which such funds have been received or disbursed. The facility shall return to the resident his valuables, personal possessions, and any unused balance of moneys from his account at the time of his transfer or discharge from the facility. In case of death or for valid reasons when he is transferred or discharged the resident’s valuables, personal possessions, and funds that the facility is not liable for shall be promptly returned to the resident’s responsible party or family member, or his guardian, or his executor.
  9. If a resident is married, privacy shall be assured for the spouse’s visits and if they are both residents in the facility, they may share the same room unless they are in different levels of care or unless medically contraindicated and documented by a physician in the resident’s medical record.
  10. Residents shall not be required to perform services for the facility that are not included for therapeutic purposes in their plan of care.
  11. Residents may associate and communicate privately with persons of their choice and send and receive personal mail unopened.
  12. Residents may retain the use of their personal clothing unless it would infringe upon the rights of others.
  13. No responsible resident shall be detained against his will. Residents shall be permitted and encouraged to go outdoors and leave the premises as they wish unless a legitimate reason can be shown and documented for refusing such activity.
  14. Residents shall be permitted to participate in activities of social, religious, and community groups at their discretion.
  15. Residents shall be assured of at least visual privacy in multibed rooms and in tub, shower, and toilet rooms.
  16. The resident and the responsible party or his responsible family member or his guardian shall be permitted the choice of a physician.
  17. If the resident is adjudicated mentally disabled in accordance with state law, the resident’s guardian shall act on the resident’s behalf in order that his rights be implemented.
  18. Each resident shall be treated with consideration, respect, and full recognition of his dignity and individuality, including privacy in treatment and in care for his personal needs.
  19. Every resident and the responsible party or his responsible family member or his guardian has the right to be fully informed of the resident’s medical condition unless medically contraindicated and documented by a physician in the resident’s medical record.
  20. Residents have the right to be suitably dressed at all times and given assistance when needed in maintaining body hygiene and good grooming.
  21. Residents shall have access to a telephone at a convenient location within the facility for making and receiving telephone calls.
  22. The resident’s responsible party or family member or his guardian shall be notified immediately of any accident, sudden illness, disease, unexplained absence, or anything unusual involving the resident.
  23. Residents have the right to have private meetings with the appropriate long-term care facility inspectors from the Cabinet for Health and Family Services.
  24. Each resident and the responsible party or his responsible family member or his guardian has the right to have access to all inspection reports on the facility.
  25. The above-stated rights shall apply in all cases unless medically contraindicated and documented by a physician in writing in the resident’s medical record.
  26. Any resident whose rights as specified in this section are deprived or infringed upon shall have a cause of action against any facility responsible for the violation. The action may be brought by the resident or his guardian. The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual and punitive damages for any deprivation or infringement on the rights of a resident. Any plaintiff who prevails in such action against the facility may be entitled to recover reasonable attorney’s fees, costs of the action, and damages, unless the court finds the plaintiff has acted in bad faith, with malicious purpose, or that there was a complete absence of justifiable issue of either law or fact. Prevailing defendants may be entitled to recover reasonable attorney’s fees. The remedies provided in this section are in addition to and cumulative with other legal and administrative remedies available to a resident and to the cabinet.

History. Enact. Acts 1978, ch. 122, § 2, effective June 17, 1978; 1982, ch. 141, § 74, effective July 1, 1982; 1982, ch. 157, § 24, effective July 15, 1982; 1988, ch. 280, § 4, effective July 15, 1988; 1998, ch. 426, § 427, effective July 15, 1998; 2005, ch. 99, § 483, effective June 20, 2005.

Compiler’s Notes.

This section was amended by § 78 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

NOTES TO DECISIONS

1.Discharge.

Long-term care facility did have to wait to discharge a patient until after her appeal was heard regarding a denial of Medicaid benefits because such was not required under an operations manual or under 900 Ky. Admin. Regs. 2:050. A discharge was proper upon nonpayment under KRS 216.515 , and nonpayment occurred when the claim for Medicaid benefits was denied. King v. Butler Rest Home, Inc., 365 S.W.3d 561, 2011 Ky. App. LEXIS 105 (Ky. Ct. App. 2011).

2.Limitation Period.

One or two-year limitation periods for personal injury actions, and not the five-year period for a cause of action created by statute, applied to a suit against a health care facility alleging personal injury and violation of a resident’s rights; accordingly, the suit, filed over three years after the resident died, was untimely. Kindred Nursing Ctrs. Ltd. P'ship v. Overstreet, 2013 Ky. App. LEXIS 124 (Ky. Ct. App. Aug. 9, 2013), aff'd, 479 S.W.3d 69, 2015 Ky. LEXIS 1754 ( Ky. 2015 ).

It was error to dismiss all claims a personal representative brought under Ky. Rev. Stat. Ann. § 216.515 as time-barred for not having been brought within the one-year limitation period in Ky. Rev. Stat. Ann. § 413.140 because some of the claims were statutorily created claims subject to the five-year limitations period in Ky. Rev. Stat. Ann. § 413.120(2). Overstreet v. Kindred Nursing Ctrs. Ltd. P?ship, 2015 Ky. LEXIS 1754 (Aug. 20, 2015).

Personal representative's claim under Ky. Rev. Stat. Ann. § 216.515(6) for violation of a nursing home resident's right to be free of abuse was subject to the one-year limitation period in Ky. Rev. Stat. Ann. § 413.140 because the statute codified a common-law personal injury action. Overstreet v. Kindred Nursing Ctrs. Ltd. P'ship, 479 S.W.3d 69, 2015 Ky. LEXIS 1754 ( Ky. 2015 ).

3.Survival.

Claims based on an alleged violation of a nursing home resident's right to be free of abuse survived the resident's death because the claims were based on a common law personal injury cause of action or a wrongful death claim. Overstreet v. Kindred Nursing Ctrs. Ltd. P'ship, 479 S.W.3d 69, 2015 Ky. LEXIS 1754 ( Ky. 2015 ).

Claims based on alleged violations of a nursing home resident's rights under Ky. Rev. Stat. Ann. § 216.515(18), (20), and (22) did not survive the resident's death because the claims were based on statutory liabilities. Overstreet v. Kindred Nursing Ctrs. Ltd. P'ship, 479 S.W.3d 69, 2015 Ky. LEXIS 1754 ( Ky. 2015 ).

Trial court properly set aside the jury verdict and granted a long-term care facility a new trial because not only had the facility preserved the issue of standing, but an estate’s claims under the long-term Residents’ Rights Act were improperly submitted to the jury since the resident had predeceased the claim; the statutory duties merely codify the common-law standard of care and do not survive the death of the resident. Jennings v. Berea Area Dev., LLC, 2018 Ky. App. LEXIS 185 (Ky. Ct. App., sub. op., 2018 Ky. App. Unpub. LEXIS 964 (Ky. Ct. App. June 15, 2018).

Co-executors’ ability to assert claims under the Residents’ Rights Statute did not present an issue of standing because the ability to do so expired upon a resident’s death and the nursing home properly preserved all objections to inclusion of those claims. Trilogy Healthcare of Fayette I, LLC v. Techau, 605 S.W.3d 60, 2019 Ky. App. LEXIS 98 (Ky. Ct. App. 2019).

Circuit court erred in awarding attorney’s fees to a resident’s co-executors because their claim—failure to inform them of the resident’s medical condition—did not survive his death since it was not related to injury to him or his property, the jury instructions were improper, and the award, a jury instruction, and jury question were seemingly lifted directly from an outdated federal regulation. Trilogy Healthcare of Fayette I, LLC v. Techau, 605 S.W.3d 60, 2019 Ky. App. LEXIS 98 (Ky. Ct. App. 2019).

4.Arbitration.

Appellate court concluded that its prior opinion, while correctly decided when rendered, had to be reversed in part because, in light of the United States Supreme Court’s holding in Kindred Nursing Centers Limited Partnership v. Clark, 137 S. Ct. 1421, 197 L. Ed. 2d 806, 2017 U.S. LEXIS 2948 (2017), the personal injury and statutory claims that belonged to a mother, and to which her estate succeeded, had to be submitted to arbitration inasmuch as the mother’s power of attorney conferred on her son the authority to enter into an arbitration agreement with the nursing home, and states could not apply legal rules that applied only to arbitration or that derived their meaning from the fact that an agreement to arbitrate was at issue. GGNSC FRANKFORT, LLC v. Richardson, 581 S.W.3d 590, 2019 Ky. App. LEXIS 132 (Ky. Ct. App. 2019).

Opinions of Attorney General.

Like all rights granted to citizens the individual has the right to waive the protection of rights provided by this section but such waiver must be completely voluntary and with the individual’s knowledge of the rights being waived; such waiver cannot be the basis for determining acceptance into such facilities in light of the fact that the facilities are operating under a license granted by the Commonwealth. OAG 78-689 .

Research References and Practice Aids

Northern Kentucky Law Review.

A Survey of Key Issues Kentucky Elder Law, 29 N. Ky. L. Rev. 139 (2002).

216.520. Supplementation of residents’ rights.

For the purpose of supplementing the rights of residents in long-term-care facilities, such facilities shall take the following actions:

  1. Every long-term-care facility shall conspicuously post throughout the facility a listing of the residents’ rights and responsibilities as defined in KRS 216.515 to 216.525 .
  2. Every long-term-care facility shall develop and implement a mechanism which will allow each resident and the responsible party or his responsible family member or his guardian to participate in the planning of the resident’s care. Each resident shall be encouraged and provided assistance in the planning of his care.
  3. All long-term-care facilities shall establish written procedures for the submission and resolution of complaints and recommendations by the resident and the responsible party or his responsible family member or his guardian. Such policies shall be conspicuously displayed throughout the facility pending approval of their adequacy by the cabinet.
  4. Every long-term-care facility shall prepare a written plan and provide appropriate staff training to implement each of the residents’ rights as defined in KRS 216.515 to 216.525 .
  5. All long-term-care facilities shall maintain in their facilities one (1) copy of the most recent inspection report as prepared by the Cabinet for Health and Family Services. The cabinet shall provide all long-term-care facilities with one (1) copy of the most recent inspection report.

History. Enact. Acts 1978, ch. 122, § 3, effective June 17, 1978; 1982, ch. 141, § 75, effective July 1, 1982; 1988, ch. 280, § 5, effective July 15, 1988; 1998, ch. 426, § 428, effective July 15, 1998; 2005, ch. 99, § 484, effective June 20, 2005.

Compiler’s Notes.

This section was amended by § 79 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

216.525. Cabinet’s duties.

For the purpose of supplementing, monitoring and enforcing the rights of residents in long-term care facilities, the cabinet shall take the following actions:

  1. The cabinet shall design and distribute posters to all long-term care facilities which clearly detail how the resident and his responsible family member or his guardian or a visitor may make a written or oral complaint, anonymously if they so choose, to the cabinet in regard to the quality of care given by a particular facility. These posters shall be conspicuously displayed throughout each long-term care facility.
  2. The cabinet shall take appropriate and necessary actions to insure that all of the rights of residents in long-term care facilities as defined by KRS 216.515 to 216.525 are upheld.

History. Enact. Acts 1978, ch. 122, § 4, effective June 17, 1978; 1982, ch. 141, § 76, effective July 1, 1982.

Compiler’s Notes.

This section was amended by § 80 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

216.530. Inspections of long-term care facilities to be unannounced — Frequency — Prohibition of prior notice of inspection.

  1. All inspections of long-term care facilities performed by the cabinet shall be unannounced. All inspections of long-term care facilities shall be conducted in accordance with the rules and regulations promulgated by the cabinet in accordance with KRS Chapter 13A setting forth the parameters of such inspections. Except for complaint investigations, inspections shall be performed no later than seven (7) to fifteen (15) months after the previous inspection.
  2. A person having knowledge of or conducting inspections of long-term care facilities shall not, with intent to violate subsection (1) of this section, notify or cause notice to be made to an owner, operator, licensee, or representative of a licensee of any scheduled or contemplated inspection. A violation of this subsection by a state employee shall be considered cause for dismissal under KRS Chapter 18A.

History. Enact. Acts 1978, ch. 123, § 2, effective June 17, 1978; 1998, ch. 189, § 1, effective July 15, 1998; 2006, ch. 145, § 1, effective July 12, 2006.

216.532. Prohibition against long-term care facility’s being operated by or employing a person on the nurse aide abuse registry.

Long-term care facilities as defined in KRS 216.510 shall not be operated by or employ any person who is listed on the nurse aide abuse registry required by 42 C.F.R. 483.156.

History. Enact. Acts 1998, ch. 424, § 1, effective July 15, 1998.

216.533. Department for Behavioral Health, Developmental and Intellectual Disabilities long-term care facilities — Criminal background checks for applicants for employment — Persons who may not be employed — Effect of pardon or expunged record — Exemption from KRS 216.789(1).

  1. A long-term care facility owned, managed, or operated by the Department for Behavioral Health, Developmental and Intellectual Disabilities shall request an in-state criminal background information check from the Justice and Public Safety Cabinet or Administrative Office of the Courts for each applicant recommended for employment. Out-of-state criminal background information checks shall be obtained for any applicant recommended for employment who has resided or been employed outside of the Commonwealth.
  2. No facility specified in subsection (1) of this section shall knowingly employ any person who has been convicted of a felony offense under:
    1. KRS Chapter 209;
    2. KRS Chapter 218A;
    3. KRS 507.020 , 507.030 , and 507.040 ;
    4. KRS Chapter 509;
    5. KRS Chapter 510;
    6. KRS Chapter 511;
    7. KRS Chapter 513;
    8. KRS 514.030 ;
    9. KRS Chapter 530;
    10. KRS Chapter 531;
    11. KRS 508.010 , 508.020 , 508.030 , and 508.032 ;
    12. A criminal statute of the United States or another state similar to paragraphs (a) to (k) of this subsection; or
    13. A violation of the uniform code of military justice or military regulation similar to paragraphs (a) to (k) of this subsection which has caused the person to be discharged from the Armed Forces of the United States.
  3. A person who has received a pardon for an offense specified in subsection (2) or has had the record of such an offense expunged may be employed.
  4. Department for Behavioral Health, Developmental and Intellectual Disabilities facilities specified in subsection (1) of this section shall be exempt from the provisions of KRS 216.789(1).

History. Enact. Acts 2004, ch. 113, § 1, effective July 13, 2004; 2007, ch. 85, § 246, effective June 26, 2007; 2012, ch. 146, § 102, effective July 12, 2012; 2012, ch. 158, § 52, effective July 12, 2012.

Legislative Research Commission Note.

(7/12/2012). This statute was amended by 2012 Ky. Acts chs. 146 and 158, which do not appear to be in conflict and have been codified together.

216.535. Definitions for KRS 216.537 to 216.590 — Disclosure requirements.

  1. As used in KRS 216.537 to 216.590 :
    1. “Long-term care facilities” means those health care facilities in the Commonwealth which are defined by the Cabinet for Health and Family Services to be family care homes, personal care homes, intermediate care facilities, nursing facilities, nursing homes, and intermediate care facilities for individuals with intellectual disabilities;
    2. “Cabinet” means the Cabinet for Health and Family Services;
    3. “Resident” means any person admitted to a long-term care facility as defined by this section;
    4. “Licensee” in the case of a licensee who is an individual means the individual, and in the case of a licensee who is a corporation, partnership, or association means the corporation, partnership, or association;
    5. “Secretary” means the secretary of the Cabinet for Health and Family Services;
    6. “Long-term care ombudsman” means the person responsible for the operation of a long-term care ombudsman program which investigates and resolves complaints made by or on behalf of residents of long-term care facilities; and
    7. “Willful interference” means an intentional, knowing, or purposeful act or omission which hinders or impedes the lawful performance of the duties and responsibilities of the ombudsman as set forth in this chapter.
  2. The following information shall be available upon request of the affected Medicaid recipient or responsible party:
    1. Business names, business addresses, and business telephone numbers of operators and administrators of the facility; and
    2. Business names, business addresses, and business telephone numbers of staff physicians and the directors of nursing.
  3. The following information shall be provided to the nursing facility patient upon admission:
    1. Admission and discharge policies of the facility;
    2. Payment policies relevant to patients for all payor types; and
    3. Information developed and distributed to the nursing facility by the Department for Medicaid Services, including but not limited to:
      1. Procedures for implementation of all peer review organizations’ reviews and appeals processes;
      2. Eligibility criteria for the state’s Medical Assistance Program, including circumstances when eligibility may be denied; and
      3. Names and telephone numbers for case managers and all state long term care ombudsmen.

HISTORY: Enact. Acts 1982, ch. 157, § 1, effective July 15, 1982; 1990, ch. 235, § 1, effective July 13, 1990; 1994, ch. 512, § 90, effective July 15, 1994; 1996, ch. 371, § 63, effective July 15, 1996; 1998, ch. 205, § 2, effective July 15, 1998; 1998, ch. 426, § 429, effective July 15, 1998; 2005, ch. 99, § 485, effective June 20, 2005; 2010, ch. 141, § 26, effective July 15, 2010; 2018 ch. 143, § 4, effective July 14, 2018.

Legislative Research Commission Note.

(7/15/2010). The Reviser of Statutes has renumbered the internal subdivisions of this section under the authority of KRS 7.136 .

216.537. Daily visiting hours required.

In order to satisfy the requirements for licensure, a long-term care facility shall establish daily visiting hours which, at a minimum, shall consist of six (6) hours between 8 a.m. and 5 p.m. and two (2) hours between 5 p.m. and 8 p.m.

History. Enact. Acts 1982, ch. 157, § 2, effective July 15, 1982.

NOTES TO DECISIONS

1.Constitutionality.

KRS 216.537 to 216.590 do not unconstitutionally delegate powers to the Cabinet of Human Resources (now Cabinet for Health and Family Services), because the cabinet has some experience in utilizing regulations and has for some time been regulating nursing homes, even though it does not have extensive experience in the application of these regulations, there is a provision for a full due process hearing, and the potential for judicial review. Jones v. Cabinet for Human Resources, Div. for Licensure & Regulations, 710 S.W.2d 862, 1986 Ky. App. LEXIS 1074 (Ky. Ct. App. 1986).

216.540. Persons allowed access to facility during visiting hours — Rights and duties of visitors — Denial of access by resident or administrator — Unrestricted access by employee of cabinet.

  1. A long-term care facility shall assure that during the visiting hours established in accordance with KRS 216.537 , access to the facility is permitted for:
    1. Family members, guardians, and friends of an individual resident, as well as other persons who wish to visit one (1) or more residents and whose purpose is other than the unsolicited sale of a product or service;
    2. Individuals representing community organizations or service agencies who will provide, free of charge, a service or educational program to residents;
    3. An employee or representative of any private nonprofit corporation or association that qualifies for tax-exempt status under Section 501(a) of the Internal Revenue Code of 1954, 26 U.S.C.A. 1, as amended, whose primary purposes for visiting include counseling residents in resolving problems and complaints concerning their care and treatment, and assisting the residents in securing adequate services to meet their needs.
  2. Persons assured access to a long-term care facility pursuant to this section shall have the right to enter the facility without prior notice, meet with one (1) or more residents, and observe the operation of the facility as it affects the resident. Such authority shall not include the right to examine the financial records of the facility without the consent of the administrator, nor the clinical and financial records of any resident without the prior consent of the resident or the resident’s guardian or committee.
  3. Persons assured access to a long-term care facility pursuant to this section shall:
    1. Upon entering such facility, promptly advise the administrator or his designated representative of their presence except that members of a resident’s family, or the legal guardian of a resident need not advise the administrator or his designated representative of his presence upon entering the facility;
    2. Not enter the living area of any resident without identifying themselves to the resident.
  4. Individual residents shall have the right to terminate or deny any visit to them by persons assured access to the facility pursuant to this section. The administrator shall have the right to terminate or deny visitation in accordance with criteria and regulations promulgated by the cabinet.
  5. Any representative or employee of the cabinet including the long-term care ombudsman or the ombudsman’s designee, any representative or employee of any local government entity that has a responsibility regarding residents of long-term care facilities or the legal guardian of any individual resident shall have unrestricted access to all long-term care facilities; however, access as permitted pursuant to paragraphs (b) and (c) of subsection (1) of this section shall be limited to the resident’s dining area, living area, recreation area, lounges, and areas open to the general public.

History. Enact. Acts 1982, ch. 157, § 3, effective July 15, 1982.

Opinions of Attorney General.

A proposed regulation to the extent that it shifted authority to appoint “designated representatives” from the State Ombudsman to the Cabinet for Human Resources (now Health and Family Services), contravened the plain intent of this section and federal guidelines and was therefore inappropriate. OAG 83-226 .

Under subsection (5) of this section the ombudsman designee is viewed as part of the ombudsman program with independent and concurrent right of access along with agents of the cabinet. OAG 83-226 .

216.541. Willful interference with representatives of Office of the Long-Term-Care Ombudsman prohibited — Retaliation against complainant prohibited — Penalty — Liability insurance for representatives of the ombudsman program.

  1. Willful interference, as defined in KRS 216.535 , with representatives of the Office of the Long-Term-Care Ombudsman in the lawful performance of official duties, as set forth in the Older Americans Act, 42 U.S.C. secs. 3001 et seq., shall be unlawful.
  2. Retaliation and reprisals by a long-term-care facility or other entity against any employee or resident for having filed a complaint or having provided information to the long-term care ombudsman shall be unlawful.
  3. A violation of subsection (1) or (2) of this section shall result in a fine of one hundred dollars ($100) to five hundred dollars ($500) for each violation. Each day the violation continues shall constitute a separate violation. The manner in which appeals are presented for violations of this section shall be in accordance with administrative regulations prescribed by the secretary for determining the rights of the parties. All fines collected pursuant to this section shall be used for programs administered by the Department for Aging and Independent Living.
  4. The Cabinet for Health and Family Services shall authorize the acquisition of liability insurance for the protection of representatives of the Long-Term-Care Ombudsman Program who are not employed by the state, to ensure compliance with the federal mandate that no representative of the office shall be liable under state law for the good faith performance of official duties.

History. Enact. Acts 1990, ch. 235, § 3, effective July 13, 1990; 1998, ch. 426, § 430, effective July 15, 1998; 2000, ch. 6, § 29, effective July 14, 2000; 2005, ch. 99, § 486, effective June 20, 2005; 2007, ch. 24, § 20, effective June 26, 2007.

216.543. Posting requirements.

  1. Every long-term care facility shall post in a conspicuous place, accessible to residents, employees and visitors the following:
    1. A copy of the long-term care facility’s current license;
    2. The name, address, and current telephone number of the current long-term care ombudsman in the cabinet;
    3. A copy of the statement required by subsection (1) of KRS 216.545 ; and
    4. A list of the material available for public inspection required by KRS 216.547 .
  2. Every long-term care facility shall post within ten (10) feet of the front reception desk and in a prominent place easily seen by residents, employees, and visitors a printed sign at least eight (8) inches by eleven (11) inches in size, with letters at least one (1) inch high, that states: “State law (KRS 216.547 ) requires state inspection reports on this facility to be made available to you upon request. ASK A REPRESENTATIVE OF THIS FACILITY.”

History. Enact. Acts 1982, ch. 157, § 4, effective July 15, 1982; 1998, ch. 189, § 2, effective July 15, 1998.

216.545. Statement of requirements to be posted and copy given to each resident.

  1. The cabinet shall prepare a statement of the requirements of KRS 216.537 and 216.540 which shall become part of the public notice required to be posted in each facility in accordance with KRS 216.543 .
  2. All long-term care facilities shall provide every resident, upon admission, with a personal copy of the statement required in subsection (1) of this section.

HISTORY: Enact. Acts 1982, ch. 157, § 5, effective July 15, 1982; 2018 ch. 143, § 5, effective July 14, 2018.

216.546. Disclosure of information regarding sprinkler systems in long-term care facilities.

  1. As used in this section, “long-term care facility” has the same meaning as provided in KRS 216.510 , except the term shall not include family-care homes.
  2. Prior to a person’s admission, a long-term care facility that does not have a sprinkler system in each resident room shall explain to the person, or the responsible party for the person, details about the facility’s sprinkler system and which resident rooms in the facility are not equipped with a sprinkler.
  3. Each long-term care facility that does not have a sprinkler system shall obtain, prior to a person’s admission, a written form signed by the person or the responsible party for the person that acknowledges the person’s or responsible party’s awareness that the facility does not have a sprinkler system. The form shall not contain any statement that releases or purports to release the long-term care facility from any liability arising from the absence of a sprinkler system.

History. Enact. Acts 2006, ch. 46, § 1, effective July 12, 2006.

216.547. Public inspection of cabinet inspection reports, service descriptions, listings of rates and charges, and court orders on premises — Duties of Inspector General — Construction of section with respect to Kentucky Open Records Law.

  1. All long-term care facilities shall retain the following for public inspection in the office of the administrator and in the lobby of the facility:
    1. A complete copy of every inspection report of the facility received from the cabinet during the past three (3) years, including the most recent inspection report;
    2. A description of the services currently provided by the facility;
    3. A listing of the rates currently charged for services provided by the facility;
    4. A listing together with the charges for the services and items not included in the basic rate for which residents may be charged separately; and
    5. A copy of every court order issued pertaining to the quality of care or services provided in the facility.
  2. The Office of the Inspector General shall be responsible for providing public notice of results of licensure inspections of long-term care facilities and shall issue administrative regulations in accordance with KRS Chapter 13A to carry this out. Any licensure result that has not become final shall not be subject to release for public notice until the result becomes final. Nothing in this section shall be construed to limit access to public records otherwise allowed pursuant to the provisions of KRS 61.872 to 61.884 .

History. Enact. Acts 1982, ch. 157, § 6, effective July 15, 1982; 1998, ch. 189, § 3, effective July 15, 1998.

216.550. Cabinet rating system — Evaluation — Possible ratings defined — Change of rating. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 157, § 7, effective July 15, 1982; 1990, ch. 235, § 4, effective July 13, 1990) was repealed by Acts 1998, ch. 189, § 9, effective July 15, 1998.

216.553. Appeal of assignment of a particular rating. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 157, § 8, effective July 15, 1982; 1996, ch. 318, § 118, effective July 15, 1996) was repealed by Acts 1998, ch. 189, § 9, effective July 15, 1998.

216.555. Long-term care facility — Citation by cabinet for violations of regulations, standards, and requirements — Restriction on publication of results of survey, inspection, or investigation.

  1. If upon inspection or investigation the cabinet determines that a long-term care facility has violated the regulations, standards, and requirements as set forth by the cabinet pursuant to the provisions of KRS 216.510 to 216.525 , or applicable federal laws and regulations governing the certification of a long-term care facility under Title 18 or 19 of the Social Security Act and such violation has been classified in KRS 216.557 , the cabinet shall immediately issue a citation to the licensee of the long-term care facility. Each notice of violation shall be prepared in writing and shall specify the nature of the violation, and the statutory provision or regulation alleged to have been violated.
  2. Except as otherwise provided in this section, the results of a survey, inspection, or investigation of a long-term care facility conducted by any state or federal department or agency, including all statements of deficiencies, findings of deficiency, and all plans of correction, shall not be used in an advertisement publication, unless the advertisement publication includes all of the following:
    1. The date the survey, inspection, or investigation was conducted;
    2. A statement that a facility is required to submit a plan of correction in response to a statement of deficiencies, if applicable;
    3. If a finding or deficiency cited in the statement of deficiencies has been corrected, a statement that the finding or deficiency has been corrected and the date that the finding or deficiency was corrected; and
    4. A statement that the advertisement publication is not authorized or endorsed by the Cabinet for Health and Family Services, Office of Inspector General, the Centers for Medicare and Medicaid Services, or any other government agency.
  3. This section does not prohibit the results of a survey, inspection, or investigation conducted under this section from being used in an administrative proceeding or a civil or criminal investigation or prosecution.
  4. The information required by subsection (2) of this section shall:
    1. Be in the same color, font, and size as the other language on or in the advertisement publication; and
    2. Appear as prominent as other language used in the advertisement publication.

HISTORY: Enact. Acts 1982, ch. 157, § 9, effective July 15, 1982; 1998, ch. 189, § 5, effective July 15, 1998; 2017 ch. 108, § 1, effective June 29, 2017.

Compiler’s Notes.

Titles XVIII and XIX of the Social Security Act are compiled as 42 USCS § 1395 et seq. and 42 USCS § 1396 et seq., respectively.

NOTES TO DECISIONS

Cited:

Jones v. Cabinet for Human Resources, Div. for Licensure & Regulations, 710 S.W.2d 862, 1986 Ky. App. LEXIS 1074 (Ky. Ct. App. 1986); Jenny Wiley Health Care Center v. Commonwealth Cabinet for Human Resources, 828 S.W.2d 657, 1992 Ky. LEXIS 58 ( Ky. 1992 ).

216.557. Classification of violations — Exemption from state penalty if federal penalty assessed.

Citations issued pursuant to KRS 216.537 to 216.590 shall be classified according to the nature of the violation as follows:

  1. Type “A” violation means a violation by a long-term care facility of the regulation, standards, and requirements as set forth by the cabinet pursuant to KRS 216.563 or the provisions of KRS 216.510 to 216.525 , or applicable federal laws and regulations governing the certification of a long-term care facility under Title 18 or 19 of the Social Security Act, which presents an imminent danger to any resident of a long-term care facility and creates substantial risk that death or serious mental or physical harm to a resident will occur. A Type A violation shall be abated or eliminated immediately, unless a fixed period of time not to exceed ten (10) days, as determined by the cabinet, is required for correction. A Type A violation is subject to a civil penalty in an amount not less than one thousand dollars ($1,000) nor more than five thousand dollars ($5,000) for each and every violation. A facility that is assessed a civil monetary penalty in accordance with applicable federal laws and regulations under Title 18 or 19 of the Federal Social Security Act shall not be subject to the civil monetary penalty established in this subsection for the same violation.
  2. Type “B” violation means a violation by a long-term care facility of the regulations, standards, and requirements as set forth by the cabinet pursuant to KRS 216.563 or the provisions of KRS 216.510 to 216.525 , or applicable federal laws and regulations governing the certification of a long-term care facility under Title 18 or 19 of the Social Security Act, which presents a direct or immediate relationship to the health, safety, or security of any resident, but which does not create an imminent danger. A Type B violation is subject to a civil penalty in an amount not less than one hundred dollars ($100) nor more than five hundred dollars ($500) for each and every violation. A citation for a Type B violation shall specify the time within which the violation is required to be corrected as approved or determined by the cabinet. If a Type B violation is corrected within the time specified, no civil penalty shall be imposed. A facility that is assessed a civil monetary penalty in accordance with applicable federal laws and regulations under Title 18 or 19 of the Federal Social Security Act shall not be subject to the civil monetary penalty established in this subsection for the same violation.

History. Enact. Acts 1982, ch. 157, § 10, effective July 15, 1982; 1998, ch. 189, § 6, effective July 15, 1998; 2002, ch. 296, § 1, effective July 15, 2002.

Compiler’s Notes.

Titles XVIII and XIX of the Social Security Act, referred to in this section are compiled as 42 USCS § 1395 et seq. and 42 USCS § 1396 et seq., respectively.

NOTES TO DECISIONS

Cited:

Jones v. Cabinet for Human Resources, Div. for Licensure & Regulations, 710 S.W.2d 862, 1986 Ky. App. LEXIS 1074 (Ky. Ct. App. 1986); Jenny Wiley Health Care Center v. Commonwealth Cabinet for Human Resources, 828 S.W.2d 657, 1992 Ky. LEXIS 58 ( Ky. 1992 ).

216.560. Penalties for failure to correct violations within time specified — Exemption from state penalty if federal penalty assessed — Reduction of penalty by amount used to correct deficiency.

  1. If a licensee has failed to correct a Type A violation within the time specified for correction by the cabinet, the cabinet shall assess the licensee a civil penalty in the amount of five hundred dollars ($500) for each day that the deficiency continues beyond the date specified for correction. Application for an extension of time, not to exceed ten (10) days, may be granted by the cabinet upon a showing by the licensee that adequate arrangements have been made to protect the health and safety of the residents. A facility that is assessed a civil monetary penalty in accordance with applicable federal laws and regulations under Title 18 or 19 of the Federal Social Security Act shall not be subject to the civil monetary penalty established in this subsection for the same violation.
  2. If a licensee has failed to correct a Type B violation within the time specified for correction by the cabinet, the cabinet shall assess the licensee a civil penalty in the amount of two hundred dollars ($200) for each day that the deficiency continues beyond the date specified for correction. Application for an extension of time, not to exceed (10) days, may be granted by the cabinet upon a showing by the licensee that adequate arrangements have been made to protect the health and safety of the residents. A facility that is assessed a civil monetary penalty in accordance with applicable federal laws and regulations under Title 18 or 19 of the Federal Social Security Act shall not be subject to the civil monetary penalty established in this subsection for the same violation.
  3. The civil penalties authorized by KRS 216.537 to 216.590 shall be trebled when a licensee has received a citation for violating a statute or regulation for which it has received a citation during the previous twelve (12) months.
  4. Payment of penalties shall not be made from moneys used for direct patient care nor shall the payment of penalties be a reimbursable cost under Medicaid or Medicare.
  5. KRS 216B.990(3) shall not apply to the offenses defined herein.
  6. A personal care home that is assessed a civil monetary penalty for a Type A or Type B citation shall have the amount of the penalty reduced by the dollar amount that the facility can verify was used to correct the deficiency, if:
    1. The condition resulting in the deficiency citation existed for less than thirty (30) days prior to the date of the citation; or
    2. The facility has not intentionally delayed correcting the deficiency to secure a reduction in a penalty that might subsequently be assessed.
  7. All administrative fines collected by the cabinet pursuant to KRS 216.537 to 216.590 shall be deposited in the Kentucky nursing incentive scholarship fund, which is hereby created, and the balance of that fund shall not lapse at the end of the fiscal year to the general fund.

History. Enact. Acts 1982, ch. 157, § 11, effective July 15, 1982; 1984, ch. 111, § 108, effective July 13, 1984; 1990, ch. 235, § 5, effective July 13, 1990; 1990, ch. 249, § 4, effective July 13, 1990; 1998, ch. 189, § 8, effective July 15, 1998; 2002, ch. 296, § 2, effective July 15, 2002.

NOTES TO DECISIONS

1.Constitutionality.

This section, which authorizes the Cabinet for Human Resources (now Health and Family Services) to assess damages, does not violate Const., § 109, since guidelines describing the prohibited conduct are contained in KRS 216.557 and regulations promulgated pursuant to that section, a hearing is provided for in KRS 216.567 , and KRS 216.570 (now repealed) provides for judicial review of the hearing officer’s decision. Jones v. Cabinet for Human Resources, Div. for Licensure & Regulations, 710 S.W.2d 862, 1986 Ky. App. LEXIS 1074 (Ky. Ct. App. 1986).

216.563. Administrative regulations on Type A and Type B violations.

The cabinet shall promulgate administrative regulations setting forth the criteria and, where feasible, the specific acts that constitute Type A and B violations as specified by KRS 216.537 to 216.590 . No violation or civil penalty for violations of KRS 216.537 to 216.590 shall be assessed until the initial regulations are effective pursuant to KRS Chapter 13A.

HISTORY: Enact. Acts 1982, ch. 157, § 12, effective July 15, 1982; 2018 ch. 143, § 6, effective July 14, 2018.

Legislative Research Commission Note.

(10/5/90). Pursuant to KRS 7.136(1), KRS Chapter 13A has been substituted for the prior reference to KRS Chapter 13 in this statute. The sections in KRS Chapter 13 were repealed by 1984 Ky. Acts ch. 417, § 36 and KRS Chapter 13A was created in that same chapter of the 1984 Ky. Acts.

NOTES TO DECISIONS

Cited:

Jones v. Cabinet for Human Resources, Div. for Licensure & Regulations, 710 S.W.2d 862, 1986 Ky. App. LEXIS 1074 (Ky. Ct. App. 1986).

216.565. Factors to be considered in determining amount of initial penalty.

In determining the amount of the initial penalty to be imposed under KRS 216.537 to 216.590 , the cabinet shall consider at least the following factors:

  1. The gravity of the violation, including the probability that death or serious physical or mental harm to a resident will result or has resulted; the severity of the actual or potential harm, and the extent to which the provisions of the applicable statutes or regulations were violated;
  2. The reasonable diligence exercised by the licensee and efforts to correct violations;
  3. The number and type of previous violations committed by the licensee; and
  4. The amount of assessment necessary to insure immediate and continued compliance.

History. Enact. Acts 1982, ch. 157, § 13, effective July 15, 1982.

NOTES TO DECISIONS

Cited:

Jones v. Cabinet for Human Resources, Div. for Licensure & Regulations, 710 S.W.2d 862, 1986 Ky. App. LEXIS 1074 (Ky. Ct. App. 1986).

216.567. Manner of appeal — Decision of hearing officer to be final order of cabinet — Judicial review.

  1. The manner in which appeals are presented from any decision on ratings, citations, or penalties pursuant to KRS 216.537 to 216.590 shall be in accordance with KRS Chapter 13B.
  2. The secretary shall appoint one (1) or more impartial hearing officers to hear and decide upon appealed decisions. The decision of the hearing officer shall be the final order of the cabinet.
  3. Any party aggrieved by a final order may seek judicial review by filing a petition in the Franklin Circuit Court in accordance with KRS 13B.140 and 13B.150 .

History. Enact. Acts 1982, ch. 157, § 14, effective July 15, 1982; 1996, ch. 318, § 115, effective July 15, 1996.

NOTES TO DECISIONS

Cited:

Jenny Wiley Health Care Center v. Commonwealth Cabinet for Human Resources, 828 S.W.2d 657, 1992 Ky. LEXIS 58 ( Ky. 1992 ).

216.570. Judicial review of cabinet’s decision. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 157, § 15, effective July 15, 1982) was repealed by Acts 1996, ch. 318, § 357, effective July 15, 1996.

216.573. Injunction to terminate operation of facility.

The cabinet may institute injunctive proceedings in Circuit Court to enforce the provisions of KRS 216.537 to 216.590 or to terminate the operation of a long-term care facility where any of the following exists:

  1. Failure of the licensee to take appropriate action to correct a Type A or B violation; or
  2. Failure of the licensee to abide by any final order of the cabinet once it has become effective and binding.

Such injunctive relief may include temporary and permanent injunction.

History. Enact. Acts 1982, ch. 157, § 16, effective July 15, 1982.

216.575. Discipline of cabinet employee for giving advance notice to facility of impending inspection or investigation.

Any employee of the cabinet who gives or causes to be given any advance notice to any long-term care facility, directly or indirectly, that an inspection or investigation is under consideration or is impending, unless specifically mandated by federal or state regulations to give advance notice, may be subject to dismissal, suspension or demotion.

History. Enact. Acts 1982, ch. 157, § 17, effective July 15, 1982.

216.577. Action of secretary against facility for failure to correct a Type A violation.

Upon a finding that conditions in a long-term care facility constitute a Type A violation, and the licensee fails to correct the violation within the time specified for correction by the cabinet, the secretary shall take at least one (1) of the following actions with respect to the facility in addition to the issuance of a citation, or the assessment of a civil penalty therefor:

  1. Institute proceedings to obtain an order compelling compliance with the regulations, standards, or requirements as set forth by the Cabinet for Health and Family Services, the provisions of KRS 216.510 to 216.525 , or applicable federal laws and regulations governing the certification of a long-term care facility under Title 18 or 19 of the Social Security Act;
  2. Institute injunctive proceedings in Circuit Court to terminate the operation of the facility; or
  3. Selectively transfer residents whose care needs are not being adequately met by the long-term care facility.

History. Enact. Acts 1982, ch. 157, § 18, effective July 15, 1982; 2018 ch. 112, § 11, effective July 14, 2018; 2018 ch. 143, § 7, § 7, effective July 14, 2018.

Legislative Research Commission Notes.

(7/14/2018). This statute was amended by 2018 Ky. Acts chs. 112 and 143, which do not appear to be in conflict and have been codified together.

Compiler’s Notes.

Titles XVIII and XIX of the Social Security Act, referred to in subdivision (1) of this section, are compiled as 42 USCS § 1395 et seq. and 42 USCS § 1396 et seq., respectively.

216.580. Long-Term Care Coordinating Council established. [Repealed]

History. Enact. Acts 1982, ch. 157, § 19, effective July 15, 1982; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 157, § 19, effective July 15, 1982) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

216.583. Long-Term Care Coordinating Council — Membership of council. [Repealed]

History. Enact. Acts 1982, ch. 157, § 20, effective July 15, 1982; 1986, ch. 222, § 2, effective July 15, 1986; 1998, ch. 426, § 431, effective July 15, 1998; 2000, ch. 14, § 45, effective July 14, 2000; 2001, ch. 81, § 5, effective June 21, 2001; 2005, ch. 99, § 58, effective June 20, 2005; 2007, ch. 24, § 21, effective June 26, 2007; 2012, ch. 146, § 103, effective July 12, 2012; 2012, ch. 158, § 53, effective July 12, 2012; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 157, § 20, effective July 15, 1982) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

216.585. Officer and meetings of council. [Repealed]

History. Enact. Acts 1982, ch. 157, § 21, effective July 15, 1982; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 157, § 21, effective July 15, 1982) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

216.587. Duties of council. [Repealed]

History. Enact. Acts 1982, ch. 157, § 22, effective July 15, 1982; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 157, § 22, effective July 15, 1982) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

216.590. Training of surveyors and investigators.

The cabinet shall provide training for surveyors and investigators who perform duties related to KRS 216.537 to 216.590 .

History. Enact. Acts 1982, ch. 157, § 23, effective July 15, 1982.

216.593. Applicability of KRS 12.028 and 194A.040(1).

The provisions of KRS 12.028 and 194A.040(1) shall not apply to KRS 216.537 to 216.590 .

History. Enact. Acts 1982, ch. 157, § 25, effective July 15, 1982; 1986, ch. 331, § 35, effective July 15, 1986; 1998, ch. 426, § 432, effective July 15, 1998.

216.595. Requirements for assisted-living communities and long-term care facilities claiming to provide special care for persons with Alzheimer’s disease or other brain disorders — Waiver on building requirements to address specific needs.

    1. Any assisted-living community as defined by KRS 194A.700 or long-term care facility as defined in KRS 216.535 that claims to provide special care for persons with a medical diagnosis of Alzheimer’s disease or other brain disorders shall maintain a written and current manual that contains the information specified in subsection (2) of this section. This manual shall be maintained in the office of the community’s or facility’s director and shall be made available for inspection upon request of any person. The community or facility shall make a copy of any program or service information contained in the manual for a person who requests information about programs or services, at no cost to the person making the request. (1) (a) Any assisted-living community as defined by KRS 194A.700 or long-term care facility as defined in KRS 216.535 that claims to provide special care for persons with a medical diagnosis of Alzheimer’s disease or other brain disorders shall maintain a written and current manual that contains the information specified in subsection (2) of this section. This manual shall be maintained in the office of the community’s or facility’s director and shall be made available for inspection upon request of any person. The community or facility shall make a copy of any program or service information contained in the manual for a person who requests information about programs or services, at no cost to the person making the request.
    2. Any advertisement of the community or facility shall contain the following statement: “Written information relating to this community’s or facility’s services and policies is available upon request.”
    3. The community or facility shall post a statement in its entrance or lobby as follows: “Written information relating to this community’s or facility’s services and policies is available upon request.”
  1. The community or facility shall maintain and update written information on the following:
    1. The assisted-living community’s or long-term care facility’s mission or philosophy statement concerning the needs of residents with Alzheimer’s disease or other brain disorders;
    2. The process and criteria the assisted-living community or long-term care facility uses to determine placement into services for persons with Alzheimer’s disease or other brain disorders;
    3. The process and criteria the assisted-living community or long-term care facility uses to transfer or discharge persons from special services for Alzheimer’s or other brain disorders;
    4. The supervision provided for residents with a medical diagnosis of Alzheimer’s disease or other brain disorders;
    5. The family’s role in care;
    6. The process for assessing, planning, implementing, and evaluating the plan of care for persons with Alzheimer’s disease or other brain disorders;
    7. A description of any special care services for persons with Alzheimer’s disease or other brain disorders;
    8. Any costs associated with specialized services for Alzheimer’s disease or other brain disorders; and
    9. A description of dementia or other brain disorder-specific staff training that is provided, including but not limited to the content of the training, the number of offered and required hours of training, the schedule for training, and the staff who are required to complete the training.
  2. An assisted-living community may request a waiver from the Cabinet for Health and Family Services regarding building requirements to address the specialized needs of individuals with Alzheimer’s disease or other brain disorders.

HISTORY: Enact. Acts 2000, ch. 421, § 1, effective July 14, 2000; 2003, ch. 146, § 1, effective June 24, 2003; 2012, ch. 135, § 2, effective July 12, 2012; 2018 ch. 143, § 8, effective July 14, 2018.

216.600. Pilot project to provide preventive oral care services to nursing home residents. [Repealed]

HISTORY: Enact. Acts 2012, ch. 147, § 1, effective July 12, 2012; repealed by 2018 ch. 143, § 18, effective July 14, 2018.

Homes for Aged or Infirm

216.610. Definitions for KRS 216.610 to 216.700. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 87, § 2; 1962, ch. 112, § 1) was repealed by Acts 1972, ch. 149, § 11.

216.620. Purpose of KRS 216.610 to 216.700. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 87, § 1) was repealed by Acts 1972, ch. 149, § 11.

216.630. Standards for homes. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 87, § 3; 1962, ch. 112, § 2) was repealed by Acts 1972, ch. 149, § 11.

216.640. Rules and regulations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 87, § 4; 1962, ch. 112, § 3) was repealed by Acts 1972, ch. 149, § 11.

216.650. Inspections. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 87, § 5; 1962, ch. 112, § 4) was repealed by Acts 1972, ch. 149, § 11.

216.660. Licensing. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 87, § 6; 1962, ch. 112, § 5) was repealed by Acts 1972, ch. 149, § 11.

216.670. Provisional license. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 87, § 7; 1962, ch. 112, § 6) was repealed by Acts 1972, ch. 149, § 11.

216.680. Grounds for denial, suspension or revocation of license. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 87, § 8; 1962, ch. 112, § 7) was repealed by Acts 1972, ch. 149, § 11.

216.690. Hearing on denial, suspension or revocation of license — Appeal. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 87, § 9) was repealed by Acts 1972, ch. 149, § 11.

216.700. Remedy by injunction. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 87, § 11; 1962, ch. 112, § 8) was repealed by Acts 1972, ch. 149, § 11.

Personal Services Agencies

216.710. Definitions for KRS 216.710 to 216.714.

As used in KRS 216.710 to 216.714 :

  1. “Cabinet” means the Cabinet for Health and Family Services;
  2. “Client” means an individual who has been accepted to receive personal services from a personal services agency;
  3. “Crime” means a conviction of or plea of guilty to a felony offense related to theft; abuse or sale of illegal drugs; abuse, neglect, or exploitation of an adult or child; or the commission of a sex crime. Conviction of or a plea of guilty to an offense committed outside the Commonwealth of Kentucky is a crime if the offense would have been a felony if committed in Kentucky;
  4. “Department” means a department designated by the Cabinet for Health and Family Services;
  5. “Designated representative” means a person who has legal authority or is designated by the client to act on behalf of the client with regard to the action to be taken;
  6. “Direct service” means personal or group interaction between the employee and the client;
    1. “Personal services” means: (7) (a) “Personal services” means:
      1. Assisting with a client’s ambulation and activities of daily living as defined in KRS 194A.700 ;
      2. Facilitating the self-administration of medications if such medications are prepared or directed by a licensed health-care professional or the client’s designated representative;
      3. Providing services which may be referred to as attendant care, in-home companion, sitter and respite care services, and homemaker services when provided in conjunction with other personal services; and
      4. Providing services that enable the client to live safely, comfortably, and independently;
    2. “Personal services” excludes the following:
      1. Housing and services provided by a health facility or service as defined in KRS 216B.015 ;
      2. Voluntary services provided by employers or membership organizations for their employees, members, and families of the employees or members if the services are not the predominant purpose of the employer or the membership organization’s business;
      3. House cleaning, laundry, personal shopping, or transportation provided by an entity if the entity offers no other personal services;
      4. Services provided by the client’s family or by individuals who provide services to no more than three (3) clients concurrently;
      5. Individuals or entities that provide all personal services on a voluntary basis;
      6. Services that require the order of a licensed health-care professional to be lawfully performed in Kentucky;
      7. Hospitals or other entities that provide information to consumers regarding persons who are available as caregivers if the hospital or other entity makes no attempt to manage or coordinate the selection of such persons for consumers and a disclaimer is provided that the entity providing the information has not made an independent assessment of the ability of the individual or agency to provide personal services;
      8. Free Internet resources that identify potential caregivers; and
      9. Any health-care entity or health-care practitioner otherwise licensed, certified, or regulated by local, state, or federal statutes or regulations;
  7. “Personal services agency” means any person, business entity, corporation, or association, either for-profit or not-for-profit, that directly provides or makes provision for personal services through:
    1. Its own employees or agents;
    2. Contractual arrangements with independent contractors; or
    3. Referral of persons to render personal services if the person making the referral has an ownership or financial interest that is realized from the delivery of those services;
  8. “Parent personal services agency” means a personal services agency located in Kentucky that develops and maintains administrative and fiscal control over a branch office in a different Kentucky location, and does not include an out-of-state personal services agency with a branch office in Kentucky; and
  9. “Secretary” means the secretary of the Cabinet for Health and Family Services.

History. Enact. Acts 2009, ch. 83, § 1, effective June 25, 2009.

216.710. Definitions for KRS 216.710 to 216.714.

As used in KRS 216.710 to 216.714 :

  1. “Cabinet” means the Cabinet for Health and Family Services;
  2. “Client” means an individual who has been accepted to receive personal services from a personal services agency;
  3. “Crime” means a conviction of or plea of guilty to a felony offense related to theft; abuse or sale of illegal drugs; abuse, neglect, or exploitation of an adult or child; or the commission of a sex crime. Conviction of or a plea of guilty to an offense committed outside the Commonwealth of Kentucky is a crime if the offense would have been a felony if committed in Kentucky;
  4. “Department” means a department designated by the Cabinet for Health and Family Services;
  5. “Designated representative” means a person who has legal authority or is designated by the client to act on behalf of the client with regard to the action to be taken;
  6. “Direct-care staff member” means a home health aide or a personal service aide whose work involves extensive contact with residents or program participants who exhibit symptoms of Alzheimer’s disease or other dementias;
  7. “Direct service” means personal or group interaction between the employee and the client;
  8. “Facilities or programs” means residential facilities or home-and-community-based service programs and include but are not limited to personal service agencies and home health agencies that have residents or program participants who exhibit symptoms of Alzheimer’s disease or other dementias;
    1. “Personal services” means: (9) (a) “Personal services” means:
      1. Assisting with a client’s ambulation and activities of daily living as defined in KRS 194A.700 ;
      2. Facilitating the self-administration of medications if such medications are prepared or directed by a licensed health-care professional or the client’s designated representative;
      3. Providing services which may be referred to as attendant care, in-home companion, sitter and respite care services, and homemaker services when provided in conjunction with other personal services; and
      4. Providing services that enable the client to live safely, comfortably, and independently;
    2. “Personal services” excludes the following:
      1. Housing and services provided by a health facility or service as defined in KRS 216B.015 ;
      2. Voluntary services provided by employers or membership organizations for their employees, members, and families of the employees or members if the services are not the predominant purpose of the employer or the membership organization’s business;
      3. House cleaning, laundry, personal shopping, or transportation provided by an entity if the entity offers no other personal services;
      4. Services provided by the client’s family or by individuals who provide services to no more than three (3) clients concurrently;
      5. Individuals or entities that provide all personal services on a voluntary basis;
      6. Services that require the order of a licensed health-care professional to be lawfully performed in Kentucky;
      7. Hospitals or other entities that provide information to consumers regarding persons who are available as caregivers if the hospital or other entity makes no attempt to manage or coordinate the selection of such persons for consumers and a disclaimer is provided that the entity providing the information has not made an independent assessment of the ability of the individual or agency to provide personal services;
      8. Free Internet resources that identify potential caregivers; and
      9. Any health-care entity or health-care practitioner otherwise licensed, certified, or regulated by local, state, or federal statutes or regulations;
  9. “Personal services agency” means any person, business entity, corporation, or association, either for-profit or not-for-profit, that directly provides or makes provision for personal services through:
    1. Its own employees or agents;
    2. Contractual arrangements with independent contractors; or
    3. Referral of persons to render personal services if the person making the referral has an ownership or financial interest that is realized from the delivery of those services;
  10. “Parent personal services agency” means a personal services agency located in Kentucky that develops and maintains administrative and fiscal control over a branch office in a different Kentucky location, and does not include an out-of-state personal services agency with a branch office in Kentucky;
  11. “Recipient” means an individual receiving non-medical home health services or medical home-health services; and
  12. “Secretary” means the secretary of the Cabinet for Health and Family Services.

HISTORY: Enact. Acts 2009, ch. 83, § 1, effective June 25, 2009; 2021 ch. 72, § 1.

216.712. Certification of personal services agency required — Criminal background check — Administrative regulations — Fees.

  1. No personal services agency shall be operated, maintained, or advertised without obtaining a certificate as provided in this section. Entities that operate personal services agencies, as defined in KRS 216.710 , in Kentucky on June 25, 2009, shall have until December 31, 2009, to file an application for certification pursuant to this section. All other agencies shall be required to obtain certification prior to providing personal services. A parent personal services agency with one (1) or more branch offices in Kentucky shall not be required to obtain separate certificates for each of its branch offices.
  2. Each personal services agency providing direct services to clients as defined in KRS 216.710 shall perform a criminal background check on any applicant for employment prior to employing the applicant. Each application provided by the personal services agency to the applicant for initial employment shall state in a conspicuous manner on the application “For This Type of Employment State Law Requires a Criminal Background Check as Condition of Employment.”
  3. No personal services agency shall employ a person in a position which involves providing direct services to a client if the employee has been convicted of a crime as defined by KRS 216.710 .
  4. The secretary shall promulgate administrative regulations to implement this section and KRS 216.714 and 216.716 . The administrative regulations at a minimum shall establish:
    1. An initial and annual certification review process for personal services agencies that does not require an on-site visit;
    2. Procedures related to applying for, reviewing, approving, denying, and revoking certification;
    3. Fees for application and reapplication in an amount sufficient to offset the cost to administer KRS 216.712 and 216.714 ;
    4. Procedures for complaint investigations;
    5. Procedures for the imposition and collection of fines as provided by KRS 216.714;
    6. Policies and procedures for the personal services agencies;
    7. Procedures for criminal background checks;
    8. Procedures to ensure the competency of the individuals providing personal services, the requirements of written service agreements between the personal services agencies and clients or designated representatives, and the requirements of personal service plans for the clients; and
    9. Procedures to be utilized in the conduct of hearings upon appeals in accordance with KRS Chapter 13B.
  5. Only those personal services agencies meeting the standards prescribed for certification shall be granted a certificate.
  6. All fees collected under the provisions of this section shall be paid into the State Treasury and credited to the Kentucky personal services agency fund created by KRS 216.716 .
  7. Each personal services agency providing direct care to clients shall have a policy that addresses the acceptance of personal gifts, gratuities, or loans from a client by the agency and by any employee, agent, or contractor of the personal services agency. The policy shall not be required to apply to personal gifts, gratuities, or loans to the agency made by family members or friends of the client. The policy shall, at a minimum:
    1. Prohibit the solicitation of personal gifts, gratuities, or loans from a client; and
    2. Specify the conditions under which gifts, gratuities, or loans from a client may be accepted by the agency and by any employee, agent, or contractor of the personal services agency.

History. Enact. Acts 2009, ch. 83, § 2, effective June 25, 2009; 2010, ch. 110, § 1, effective July 15, 2010.

Legislative Research Commission Note.

(7/15/2010). 2010 Ky. Acts ch. 110, sec. 7, provides: “Section 1 of this Act shall be known and may be cited as, ‘The Kentucky Adult Protection Act’ in honor of the disabled veterans who revealed the need for this legislation.”

216.714. Fines for operating without required certification.

  1. Any personal services agency that provides services without receiving certification pursuant to KRS 216.712 may be fined up to five hundred dollars ($500) per day.
  2. Any business that markets its services as a personal services agency without receiving certification pursuant to KRS 216.712 may be fined up to five hundred dollars ($500) per day.
  3. All fines collected pursuant to this section shall be deposited in the fund established by KRS 216.716 .

History. Enact. Acts 2009, ch. 83, § 3, effective June 25, 2009.

216.716. Kentucky personal services agency fund.

    1. There is created a trust and agency fund to be known as the Kentucky personal services agency fund. (1) (a) There is created a trust and agency fund to be known as the Kentucky personal services agency fund.
    2. The fund shall be administered by the Finance and Administration Cabinet.
    3. The fund shall be funded with moneys collected under KRS 216.712 and 216.714 .
  1. Moneys in the fund shall be used by a department designated by the secretary of the Cabinet for Health and Family Services to administer KRS 216.712 and 216.714 . The amount expended to administer KRS 216.712 and 216.714 shall not exceed the amount collected under KRS 216.712 and 216.714.
  2. Notwithstanding KRS 45.229 , any moneys remaining in the fund at the close of the fiscal year shall not lapse but shall be carried forward into the succeeding fiscal year to be used for the purposes set forth in subsection (2) of this section.
  3. Interest earned on any moneys in the account shall accrue to the account.
  4. Moneys in the fund are hereby appropriated for the purposes set forth in KRS 216.712 and 216.714 .

History. Enact. Acts 2009, ch. 83, § 4, effective June 25, 2009.

Legislative Research Commission Note.

(6/25/2009). 2009 Ky. Acts ch. 83, sec. 4, provided that a new section of KRS Chapter 45 was to be created. During codification, the Reviser of Statutes has instead created a new section of KRS Chapter 216 for that section under the authority of KRS 7.136(1)(a).

Housing for Elderly

216.750. Definitions for KRS 216.750 to 216.780. [Repealed]

History. Enact. Acts 1962, ch. 41, § 1; 1978, ch. 384, § 66, effective June 17, 1978; 1980, ch. 188, § 214, effective July 15, 1980; 1998, ch. 426, § 433, effective July 15, 1998; 2005, ch. 99, § 487, effective June 20, 2005; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216.760. Functions of cabinet. [Repealed]

History. Enact. Acts 1962, ch. 41, § 2; 1974, ch. 74, Art. VI, § 107(1), (14); 1998, ch. 426, § 434, effective July 15, 1998; 2005, ch. 99, § 488, effective June 20, 2005; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216.765. Medical examination required prior to admission to personal-care home — Personal-care homes prohibited from admitting minors.

  1. Prior to admission to a personal-care home, an individual shall have a medical examination that includes a medical history, physical examination, and diagnosis. If completed within fourteen (14) days prior to admission, the medical evaluation may include a copy of the individual’s discharge summary or health and physical report from a physician, hospital, or other health care facility.
  2. No person under the age of eighteen (18) years shall be admitted to a personal-care home.

History. Enact. Acts 2012, ch. 135, § 1, effective July 12, 2012.

Legislative Research Commission Note.

(7/12/2012). 2012 Ky. Acts ch. 135, sec. 3, provides that this statute shall be known and may be cited as “Larry’s Law.”

216.770. Nursing home and personal care home loan fund. [Repealed]

History. Enact. Acts 1962, ch. 41, § 3; 1974, ch. 74, Art. VI, § 82; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216.780. Regulations. [Repealed]

History. Enact. Acts 1962, ch. 41, § 4; 1974, ch. 74, Art. VI, § 107(17); 1980, ch. 188, § 215, effective July 15, 1980; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

Services to Senior Citizens

216.785. Definitions for KRS 216.785 to 216.793.

As used in KRS 216.785 to 216.793 , unless the context otherwise requires:

  1. “Assisted-living community” shall have the same meaning as in KRS 194A.700 .
  2. “Crime” means a conviction of or a plea of guilty to a felony offense related to theft; abuse or sale of illegal drugs; abuse, neglect, or exploitation of an adult; or the commission of a sex crime. Conviction of or a plea of guilty to an offense committed outside the Commonwealth of Kentucky is a crime if the offense would have been a felony in Kentucky if committed in Kentucky.
  3. “Direct service” means personal or group interaction between the employee and the nursing facility resident or the senior citizen.
  4. “Nursing pool” means any person, firm, corporation, partnership, or association engaged for hire in the business of providing or procuring temporary employment in nursing facilities for medical personnel including, but not limited to, nurses, nursing assistants, nurses’ aides, and orderlies.
  5. “Senior citizen” means a person sixty (60) years of age or older.

History. Enact. Acts 1994, ch. 427, § 1, effective July 15, 1994; 1998, ch. 380, § 1, effective July 15, 1998; 2000, ch. 141, § 16, effective July 14, 2000.

216.787. Prohibition against employing certain felons at publicly funded agencies serving senior citizens — Preemployment check with Justice and Public Safety Cabinet.

  1. No agency providing services to senior citizens which are funded by the Department for Community Based Services of the Cabinet for Health and Family Services or the Department for Aging and Independent Living of the Cabinet for Health and Family Services shall employ persons in a position which involves providing direct services to a senior citizen if that person has been convicted of a felony offense related to theft; abuse or sale of illegal drugs; abuse, neglect, or exploitation of an adult; or the commission of a sex crime.
  2. Operators of service provider agencies may employ persons convicted of or pleading guilty to an offense classified as a misdemeanor.
  3. Each service provider agency providing direct services to senior citizens as specified under KRS 216.785 to 216.793 shall request all conviction information from the Justice and Public Safety Cabinet for any applicant for employment prior to employing the applicant.

History. Enact. Acts 1994, ch. 427, § 2, effective July 15, 1994; 1998, ch. 426, § 435, effective July 15, 1998; 2000, ch. 6, § 30, effective July 14, 2000; 2000, ch. 14, § 46, effective July 14, 2000; 2005, ch. 99, § 489, effective June 20, 2005; 2007, ch. 24, § 22, effective June 26, 2007; 2007, ch. 85, § 247, effective June 26, 2007.

Legislative Research Commission Note.

(6/26/2007). This section was amended by 2007 Ky. Acts chs. 24 and 85, which do not appear to be in conflict and have been codified together.

216.789. Prohibition against employing certain felons at long-term care facilities, in nursing pools providing staff to nursing facilities, or in assisted-living communities — Preemployment check with Justice and Public Safety Cabinet — Temporary employment.

  1. No long-term care facility as defined by KRS 216.535(1), nursing pool providing staff to a nursing facility, or assisted-living community shall knowingly employ a person in a position which involves providing direct services to a resident or client if that person has been convicted of a felony offense related to theft; abuse or sale of illegal drugs; abuse, neglect, or exploitation of an adult; or a sexual crime.
  2. A nursing facility, nursing pool providing staff to a nursing facility, or assisted-living community may employ persons convicted of or pleading guilty to an offense classified as a misdemeanor if the crime is not related to abuse, neglect, or exploitation of an adult.
  3. Each long-term care facility as defined by KRS 216.535(1), nursing pool providing staff to a nursing facility, or assisted-living community shall request all conviction information from the Justice and Public Safety Cabinet for any applicant for employment pursuant to KRS 216.793 .
  4. The long-term care facility, nursing pool providing staff to a nursing facility, or assisted-living community may temporarily employ an applicant pending the receipt of the conviction information.

History. Enact. Acts 1994, ch. 427, § 4, effective July 15, 1994; 1998, ch. 189, § 4, effective July 15, 1998; 1998, ch. 380, § 2, effective July 15, 1998; 2000, ch. 141, § 17, effective July 14, 2000; 2007, ch. 85, § 248, effective June 26, 2007.

216.793. Notice on application form of criminal record check — Form of request — Fee.

  1. Each application form provided by the employer, or each application form provided by a facility either contracted or operated by the Department for Behavioral Health, Developmental and Intellectual Disabilities of the Cabinet for Health and Family Services, to the applicant for initial employment in an assisted-living community nursing facility, or nursing pool providing staff to a nursing facility, or in a position funded by the Department for Community Based Services of the Cabinet for Health and Family Services or the Department for Aging and Independent Living of the Cabinet for Health and Family Services and which involves providing direct services to senior citizens shall conspicuously state the following: “FOR THIS TYPE OF EMPLOYMENT STATE LAW REQUIRES A CRIMINAL RECORD CHECK AS A CONDITION OF EMPLOYMENT.”
  2. Any request for criminal records of an applicant as provided under subsection (1) of this section shall be on a form or through a process approved by the Justice and Public Safety Cabinet or the Administrative Office of the Courts. The Justice and Public Safety Cabinet or the Administrative Office of the Courts may charge a fee to be paid by the applicant or state agency in an amount no greater than the actual cost of processing the request.

History. Enact. Acts 1994, ch. 427, § 3, effective July 15, 1994; 1998, ch. 273, § 1, effective July 15, 1998; 1998, ch. 380, § 3, effective July 15, 1998; 1998, ch. 426, § 436, effective July 15, 1998; 2000, ch. 6, § 31, effective July 14, 2000; 2000, ch. 14, § 47, effective July 14, 2000; 2000, ch. 141, § 18, effective July 14, 2000; 2000, ch. 283, § 1, effective July 14, 2000; 2005, ch. 99, § 490, effective June 20, 2005; 2007, ch. 24, § 23, effective June 26, 2007; 2007, ch. 85, § 249, effective June 26, 2007; 2012, ch. 146, § 104, effective July 12, 2012; 2012, ch. 158, § 54, effective July 12, 2012.

Legislative Research Commission Note.

(7/12/2012). This statute was amended by 2012 Ky. Acts chs. 146 and 158, which do not appear to be in conflict and have been codified together.

(6/26/2007). This section was amended by 2007 Ky. Acts chs. 24 and 85, which do not appear to be in conflict and have been codified together.

Health and Geriatric Authority Projects, Bonds

216.800. Definitions for KRS 216.800 to 216.853. [Repealed]

History. Enact. Acts 1968, ch. 132, § 1, effective June 13, 1968; 1974, ch. 74, Art. VI, § 107(1); 1998, ch. 426, § 437, effective July 15, 1998; 2005, ch. 99, § 491, effective June 20, 2005; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216.803. Kentucky Health and Geriatric Authority. [Repealed]

History. Enact. Acts 1968, ch. 132, § 2, effective June 13, 1968; 1974, ch. 257, § 6; 1976, ch. 210, § 5; 1998, ch. 426, § 438, effective July 15, 1998; 2005, ch. 99, § 492, effective June 20, 2005; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216.805. Powers of authority. [Repealed]

History. Enact. Acts 1968, ch. 132, § 3, effective June 13, 1968; 1976, ch. 140, § 92; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216.807. Agreements by authority for financing of projects. [Repealed]

History. Enact. Acts 1968, ch. 132, § 4, effective June 13, 1968; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216.810. Leases by authority, contents. [Repealed]

History. Enact. Acts 1968, ch. 132, § 5, effective June 13, 1968; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216.813. Revenue bonds — Issuance by authority — Sale — Use of proceeds — Temporary bonds. [Repealed]

History. Enact. Acts 1968, ch. 132, § 6, effective June 13, 1968; 1970, ch. 92, § 74; 1974, ch. 74, Art. II, § 9(1); 1984, ch. 111, § 181, effective July 13, 1984; 1996, ch. 274, § 52, effective July 15, 1996; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216.815. Bonds not debt of Commonwealth. [Repealed]

History. Enact. Acts 1968, ch. 132, § 7, effective June 13, 1968; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216.817. Bonds may be secured by trust indenture. [Repealed]

History. Enact. Acts 1968, ch. 132, § 8, effective June 13, 1968; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216.820. Enforcement of rights under bonds. [Repealed]

History. Enact. Acts 1968, ch. 132, § 9, effective June 13, 1968; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216.823. Bonds as legal investments. [Repealed]

History. Enact. Acts 1968, ch. 132, § 10, effective June 13, 1968; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216.825. Revenue refunding bonds, issuance. [Repealed]

History. Enact. Acts 1968, ch. 132, § 11, effective June 13, 1968; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216.827. Proceeds of bonds are trust funds. [Repealed]

History. Enact. Acts 1968, ch. 132, § 12, effective June 13, 1968; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216.830. Property, income and bonds exempt from taxation. [Repealed]

History. Enact. Acts 1968, ch. 132, § 13, effective June 13, 1968; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216.833. Acquisition of property by purchase or eminent domain — Title — Possession, how obtained. [Repealed]

History. Enact. Acts 1968, ch. 132, § 14, effective June 13, 1968; 1978, ch. 384, § 67, effective June 17, 1978; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216.835. Lessee to maintain project. [Repealed]

History. Enact. Acts 1968, ch. 132, § 15, effective June 13, 1968; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216.837. Political subdivisions may lease or convey to authority without formality. [Repealed]

History. Enact. Acts 1968, ch. 132, § 16, effective June 13, 1968; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216.840. Conveyance of project to lessee, when authorized. [Repealed]

History. Enact. Acts 1968, ch. 132, § 17, effective June 13, 1968; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216.843. Compensation for damage to private property. [Repealed]

History. Enact. Acts 1968, ch. 132, § 18, effective June 13, 1968; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216.845. Kentucky Health and Geriatric Authority revenue bond guarantee fund — How made up — Use of — Payments on default. [Repealed]

History. Enact. Acts 1968, ch. 132, § 19, effective June 13, 1968; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216.847. Annual report of authority. [Repealed]

History. Enact. Acts 1968, ch. 132, § 20, effective June 13, 1968; 1980, ch. 188, § 216, effective July 15, 1980; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216.850. Officers or agents of authority not to have conflicting interest — Penalty. [Repealed]

History. Enact. Acts 1968, ch. 132, § 21, effective June 13, 1968; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216.853. Applicability of other laws. [Repealed]

History. Enact. Acts 1968, ch. 132, § 22, effective June 13, 1968; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

Nursing Pools

216.860. Definitions for KRS 216.865. [Repealed]

HISTORY: Enact. Acts 1988, ch. 342, § 2, effective January 1, 1989; 1998, ch. 426, § 439, effective July 15, 1998; 2001, ch. 81, § 6, effective June 21, 2001; 2005, ch. 99, § 493, effective June 20, 2005; repealed by 2018 ch. 143, § 18, effective July 14, 2018.

216.865. Licensing required — Administrative regulations. [Repealed]

HISTORY: Enact. Acts 1988, ch. 342, § 3, effective January 1, 1989; 1996, ch. 318, § 116, effective July 15, 1996; 1998, ch. 189, § 7, effective July 15, 1998; 2001, ch. 81, § 7, effective June 21, 2001; repealed by 2018 ch. 143, § 18, effective July 14, 2018.

Prescribed Pediatric Extended Care Centers

216.875. Definitions for KRS 216.880 to 216.890.

As used in KRS 216.880 to 216.890 the following definitions shall apply:

  1. “Prescribed pediatric extended care center” hereinafter referred to as a “PPEC center,” means any building or other place, whether operated for profit or not, which undertakes through its ownership or management to provide, for a part of the day, basic services to three (3) or more medically dependent or technologically dependent children who are not related to the owner or operator by blood, marriage, or adoption and who require such services;
  2. “Basic services” include, but are not limited to, development, implementation, and monitoring of a comprehensive protocol of care, developed in conjunction with the parent or guardian, which specifies the medical, nursing, psychosocial, and developmental therapies required by the medically dependent or technologically dependent child served as well as the caregiver training needs of the child’s legal guardian;
  3. “Cabinet” means the Cabinet for Health and Family Services;
  4. “Owner or operator” means any individual who has general administrative charge of a PPEC center;
  5. “Medical records” means medical records maintained in accordance with accepted professional standards and practices as specified in the administrative regulations;
  6. “Medically dependent or technologically dependent child” means a child who because of a medical condition requires continuous therapeutic interventions or skilled-nursing supervision which must be prescribed by a licensed physician and administered by, or under the direct supervision of, a licensed registered nurse; and
  7. “Supportive services or contracted services” include, but are not limited to, speech therapy, occupational therapy, physical therapy, social work, developmental, child life, and psychological services.

History. Enact. Acts 1988, ch. 325, § 1, effective July 15, 1988; 1998, ch. 426, § 440, effective July 15, 1998; 2005, ch. 99, § 494, effective June 20, 2005.

216.880. Facilities to be licensed.

For the administration of KRS 216.875 to 216.890 , facilities to be licensed by the cabinet shall include all PPEC centers as defined in KRS 216.875 except a facility, institution, or other place operated by the federal government or any agency thereof.

History. Enact. Acts 1988, ch. 325, § 2, effective July 15, 1988.

216.885. Requirement of licensing for PPEC center.

  1. It is unlawful to operate or maintain a PPEC center without first obtaining a certificate of need and a license for the PPEC center from the cabinet. The cabinet is responsible for licensing PPEC centers in accordance with the provisions of KRS Chapter 216B.
  2. Separate licenses are required for PPEC centers maintained on separate premises, even though they are operated under the same management. Separate licenses are not required for separate buildings on the same grounds.
  3. The Cabinet for Health and Family Services may deny, revoke, modify, or suspend a license in accordance with KRS 216B.105 .

History. Enact. Acts 1988, ch. 325, § 3, effective July 15, 1988; 1994, ch. 512, Part 12, § 91, effective July 15, 1994; 1998, ch. 426, § 441, effective July 15, 1998; 2005, ch. 99, § 59, effective June 20, 2005.

216.890. Administrative regulations.

  1. On or before July 1, 1989, the Cabinet for Health and Family Services shall promulgate administrative regulations to implement the provisions of KRS 216.875 to 216.890 , which shall include reasonable and fair standards. Such standards shall relate to:
    1. The assurance that PPEC services are family-centered and provide individualized medical, developmental, and family training services;
    2. The maintenance of PPEC centers based upon the size of the structure and number of children, relating to plumbing, heating, lighting, ventilation, and other building conditions, including adequate space, which will ensure the health, safety, comfort, and protection from fire of the children served;
    3. The appropriate provisions of the “Life Safety Code” (NFPA-101, 1985 edition);
    4. The number and qualifications of all personnel who have responsibility for the care of the children served;
    5. All sanitary conditions within the PPEC center and its surroundings, including water supply, sewage disposal, food handling, and general hygiene, and maintenance thereof, which will ensure the health and comfort of children served;
    6. Programs and basic services promoting and maintaining the health and development of the children served and meeting the training needs of the children’s legal guardians;
    7. Supportive, contracted, other operational, and transportation services; and,
    8. Maintenance of appropriate medical records, data, and information relative to the children and programs to be maintained in the facility for inspection by the cabinet.
  2. Enforcement of standards pursuant to the adoption of administrative regulations under KRS 216.875 to 216.890 shall not take effect until six (6) months after the adoption of such administrative regulations.

History. Enact. Acts 1988, ch. 325, § 4, effective July 15, 1988; 1998, ch. 426, § 442, effective July 15, 1998; 2005, ch. 99, § 495, effective June 20, 2005.

Family Health Care

216.900. Definitions for KRS 216.900 to 216.930. [Repealed]

HISTORY: Enact. Acts 1990, ch. 482, § 1, effective July 13, 1990; 2017 ch. 80, § 21, effective June 29, 2017; repealed by 2018 ch. 143, § 18, effective July 14, 2018.

216.905. Network license required. [Repealed]

HISTORY: Enact. Acts 1990, ch. 482, § 2, effective July 13, 1990; 1998, ch. 426, § 443, effective July 15, 1998; 2005, ch. 99, § 496, effective June 20, 2005; repealed by 2018 ch. 143, § 18, effective July 14, 2018.

216.910. Powers and duties of network. [Repealed]

HISTORY: Enact. Acts 1990, ch. 482, § 3, effective July 13, 1990; 1998, ch. 426, § 444, effective July 15, 1998; 2005, ch. 99, § 497, effective June 20, 2005; 2017 ch. 80, § 22, effective June 29, 2017; repealed by 2018 ch. 143, § 18, effective July 14, 2018.

216.915. Administrative regulations. [Repealed]

HISTORY: Enact. Acts 1990, ch. 482, § 4, effective July 13, 1990; 1998, ch. 426, § 445, effective July 15, 1998; 2005, ch. 99, § 498, effective June 20, 2005; repealed by 2018 ch. 143, § 18, effective July 14, 2018.

216.920. Kentucky Board of Family Health Care Providers. [Repealed]

History. Enact. Acts 1990, ch. 482, § 5, effective July 13, 1990; 1996, ch. 318, § 119, effective July 15, 1996; 1998, ch. 426, § 446, effective July 15, 1998; 2005, ch. 99, § 499, effective June 20, 2005; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 482, § 5, effective July 13, 1990; 1996, ch. 318, § 119, effective July 15, 1996; 1998, ch. 426, § 446, effective July 15, 1998; 2005, ch. 99, § 499, effective June 20, 2005) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

216.925. Midlevel health care practitioner. [Repealed]

History. Enact. Acts 1990, ch. 482, § 6, effective July 13, 1990; 2012, ch. 146, § 105, effective July 12, 2012; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 482, § 6, effective July 13, 1990; 2012, ch. 146, § 105, effective July 12, 2012) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

216.930. Linkage agreements. [Repealed]

HISTORY: Enact. Acts 1990, ch. 482, § 7, effective July 13, 1990; repealed by 2018 ch. 143, § 18, effective July 14, 2018.

Home Health Care

216.935. Definitions for KRS 216.935 to 216.939.

As used in KRS 216.935 to 216.939 , unless the context requires otherwise:

  1. “Direct-care staff member” means a home health aide or a personal service aide whose work involves extensive contact with residents or program participants who exhibit symptoms of Alzheimer’s disease or other dementias;
  2. “Facilities or programs” means residential facilities or home-and-community-based service programs and include but are not limited to personal service agencies and home health agencies that have residents or program participants who exhibit symptoms of Alzheimer’s disease or other dementias;
  3. “Home health aide” means an individual who is hired to perform home health aide services.
  4. “Home health agency” means a public agency or private organization, or a subdivision of such an agency or organization which is licensed as a home health agency by the Cabinet for Health and Family Services and is certified to participate as a home health agency under Title XVIII of the Social Security Act.
  5. “Home health aide services” means those services provided by a home health aide and supervised by a registered nurse which are directed towards the personal care of the patient. Such services shall include, but not be limited to, the following:
    1. Helping the patient with bath and care of mouth, skin, and hair;
    2. Helping the patient to the bathroom or in using a bedpan;
    3. Helping the patient in and out of bed and assisting with ambulation;
    4. Helping the patient with prescribed exercises which the patient and home health aide have been taught by appropriate professional personnel;
    5. Assisting with medication ordinarily self-administered that has been specifically ordered by a physician or advanced practice registered nurse;
    6. Performing incidental household services as are essential to the patient’s health care at home, if these services would have been performed if the patient was in a hospital or skilled nursing facility; and
    7. Reporting changes in the patient’s condition or family situation to the professional nurse supervisor.
  6. “Nurse aide” means an individual, including a nursing student, medication aide, and a person employed through a nursing pool, who provides nursing or nursing related services to a resident in a nursing facility or home health agency, excluding:
    1. An individual who is a licensed health professional;
    2. A volunteer who provides the nursing or nursing-related services without monetary compensation; and
    3. A person who is hired by the resident or family to sit with the resident and who does not perform nursing or nursing-related services.
  7. “Recipient” means an individual receiving non-medical home health services or medical home-health services.

HISTORY: Enact. Acts 2000, ch. 471, § 1, effective July 14, 2000; 2010, ch. 85, § 76, effective July 15, 2010; 2018 ch. 112, § 12, effective July 14, 2018; 2021 ch. 72, § 3.

216.935. Definitions for KRS 216.935 to 216.939.

As used in KRS 216.935 to 216.939 , unless the context requires otherwise:

  1. “Home health aide” means an individual who is hired to perform home health aide services.
  2. “Home health agency” means a public agency or private organization, or a subdivision of such an agency or organization which is licensed as a home health agency by the Cabinet for Health and Family Services and is certified to participate as a home health agency under Title XVIII of the Social Security Act.
  3. “Home health aide services” means those services provided by a home health aide and supervised by a registered nurse which are directed towards the personal care of the patient. Such services shall include, but not be limited to, the following:
    1. Helping the patient with bath and care of mouth, skin, and hair;
    2. Helping the patient to the bathroom or in using a bedpan;
    3. Helping the patient in and out of bed and assisting with ambulation;
    4. Helping the patient with prescribed exercises which the patient and home health aide have been taught by appropriate professional personnel;
    5. Assisting with medication ordinarily self-administered that has been specifically ordered by a physician, an advanced practice registered nurse, or a physician assistant;
    6. Performing incidental household services as are essential to the patient’s health care at home, if these services would have been performed if the patient was in a hospital or skilled nursing facility; and
    7. Reporting changes in the patient’s condition or family situation to the professional nurse supervisor.
  4. “Nurse aide” means an individual, including a nursing student, medication aide, and a person employed through a nursing pool, who provides nursing or nursing related services to a resident in a nursing facility or home health agency, excluding:
    1. An individual who is a licensed health professional;
    2. A volunteer who provides the nursing or nursing-related services without monetary compensation; and
    3. A person who is hired by the resident or family to sit with the resident and who does not perform nursing or nursing-related services.

HISTORY: Enact. Acts 2000, ch. 471, § 1, effective July 14, 2000; 2010, ch. 85, § 76, effective July 15, 2010; 2018 ch. 112, § 12, effective July 14, 2018; 2021 ch. 59, § 1, effective March 15, 2021.

Compiler’s Notes.

Title XVIII of the Social Security Act, referred to in subsection (2), is compiled as 42 USCS § 1395 et seq.

216.936. Expansion of nurse aide abuse registry to include home health aides.

The Cabinet for Health and Family Services shall establish an abuse registry to include information pertaining to findings of resident neglect as defined at 42 C.F.R. 488.301 or abuse as defined at 42 C.F.R. 488.301, and misappropriation of resident property by a nurse aide or home health aide. The abuse registry may be created by expanding or modifying the existing nurse aide abuse registry to include home health aides as permitted by 42 C.F.R. 483.156.

History. Enact. Acts 2000, ch. 471, § 2, effective July 14, 2000; 2005, ch. 99, § 500, effective June 20, 2005.

216.937. Management and employment prohibition for home health agency.

Home health agencies shall not be operated by or employ any person who is listed on the expanded or modified nurse aide abuse registry as permitted by 42 C.F.R. 483.156. The expanded or modified nurse aide abuse registry shall be checked prior to the employment of a home health aide by home health agencies. The home health agency shall document the check of the expanded or modified nurse aide abuse registry for each prospective home health aide.

History. Enact. Acts 2000, ch. 471, § 3, effective July 14, 2000.

216.939. Administrative regulations for abuse registry and hearing and appeal procedures.

The Cabinet for Health and Family Services shall promulgate administrative regulations in accordance with KRS Chapter 13A that establish and maintain an abuse registry for nurse aides and home health aides. The cabinet shall also expand or modify the hearing and appeals procedure to include nurse aides and home health aides.

History. Enact. Acts 2000, ch. 471, § 4, effective July 14, 2000; 2005, ch. 99, § 501, effective June 20, 2005.

Charitable Health Care Services

216.940. Definitions for KRS 216.940 to 216.945. [Effective until June 29, 2021]

As used in KRS 216.940 to 216.945 :

  1. “Charitable health care provider” means any person, agency, clinic, or facility licensed or certified by the Commonwealth or under a comparable provision of law of another state, territory, district, or possession of the United States, engaged in the rendering of medical care or dentistry without compensation or charge, and without expectation of compensation or charge, to the individual, without payment or reimbursement by any governmental agency or insurer. “Charitable health care provider” means those persons, agencies, clinics, or facilities providing primary medical care and performing no invasive or surgical procedures, and those persons, agencies, clinics, or facilities providing services within the dentist’s scope of practice under KRS Chapter 313.
  2. “Regularly practice” means to practice for more than sixty (60) days within any ninety (90) day period.
  3. “Sponsoring organization” means any organization, with an established relationship with a practicing entity, that organizes or arranges for the voluntary provision of health care services in the state.

History. Enact. Acts 1998, ch. 505, § 1, effective July 15, 1998; 2000, ch. 64, § 1, effective July 14, 2000; 2004, ch. 62, § 1, effective July 13, 2004.

216.940. Definitions for KRS 216.940 to 216.945. [Effective June 29, 2021]

As used in KRS 216.940 to 216.945 :

  1. “Charitable health care provider” means any person, agency, clinic, or facility, licensed or certified by the Commonwealth or under a comparable provision of law of another state, territory, district, or possession of the United States, engaged in the rendering of medical care or dentistry:
    1. Within the scope of practice for which the person, agency, clinic, or facility is licensed or certified; and
    2. Without compensation or charge, and without expectation of compensation or charge, to the individual, without payment or reimbursement by any governmental agency or insurer;
  2. “Regularly practice” means to practice for more than sixty (60) days within any ninety (90) day period; and
  3. “Sponsoring organization” means any organization, with an established relationship with a practicing entity, that organizes or arranges for the voluntary provision of health care services in the state.

HISTORY: Enact. Acts 1998, ch. 505, § 1, effective July 15, 1998; 2000, ch. 64, § 1, effective July 14, 2000; 2004, ch. 62, § 1, effective July 13, 2004; 2021 ch. 63, § 1, effective June 29, 2021.

216.941. License or certificate requirements for voluntary provision of health care — Registration — Availability of information — Report.

  1. Notwithstanding any provision of law to the contrary, no additional license or certificate otherwise required under the provisions of KRS Chapters 211, 216, 311, 312, or 314 shall be necessary for the voluntary provision of health care services by any person who:
    1. Is a charitable health care provider as defined in KRS 216.940 ; or
    2. Does not regularly practice in the Commonwealth.
  2. No person whose license or certificate is suspended or revoked under disciplinary proceedings in any jurisdiction, nor any person who renders services outside of the scope of practice authorized by his or her licensure or certification or exception to license or certification shall be allowed to participate with any sponsoring organization as a charitable health care provider.
  3. Before providing charitable health care services in this state, a charitable health care provider or sponsoring organization shall register with the Cabinet for Health and Family Services by filing a registration form that shall contain the following information:
    1. The name, address, and phone number of the charitable health care provider;
    2. Written and verifiable documentation of a current Kentucky license including, if applicable, a license granted to an individual under a reciprocal agreement with another state or country;
    3. The name, principal office address, phone number, and principal officer of any sponsoring organization;
    4. The dates, locations, types of services, and intended recipients of any charitable health care services to be performed in the state;
    5. Information as to any medical malpractice insurance procured under KRS 304.40-075 or otherwise; and
    6. Other information as the cabinet may require by administrative regulation.
  4. The cabinet shall provide, upon request of the charitable health care provider or sponsoring organization, any information available as to declared emergencies, underserved populations, and lack of access to health care in the state that will assist the charitable health care provider or sponsoring organization in the provision of these services.
  5. Boards of health created under KRS Chapter 212 may submit requests for charitable health care providers in their jurisdictions to be listed in any information provided.
  6. Each sponsoring organization shall maintain a list of health care providers associated with its provision of charitable health care services. For each health care provider, the sponsoring organization shall maintain a copy of a current license, certificate, or statement of exemption from licensure or certification and shall require each health care provider to attest in writing that his or her license or certificate is not suspended or revoked under disciplinary proceedings in any jurisdiction. The sponsoring organization shall maintain its records of charitable health care providers for at least five (5) years after the provision of charitable health care services, including actual dates, types of services, and recipients of charitable health care services, and shall furnish these records upon the request of the Cabinet for Health and Family Services. Compliance with this section shall be prima facie evidence that the sponsoring organization has exercised due care in selecting charitable health care providers.
  7. The cabinet may revoke the registration of any charitable health care provider or sponsoring organization for failure to comply with the provisions of KRS 216.940 to 216.945 , in accordance with the provisions of KRS Chapter 13B.
  8. The cabinet shall report the name and location of individuals registered with the cabinet as charitable health care providers upon request.

HISTORY: Enact. Acts 1998, ch. 505, § 2, effective July 15, 1998; 2000, ch. 64, § 2, effective July 14, 2000; 2002, ch. 142, § 2, effective July 15, 2002; 2005, ch. 99, § 502, effective June 20, 2005; 2017 ch. 80, § 50, effective June 29, 2017.

216.942. Exemption from display of license or certification.

With regard to a person who provides charitable health care services under KRS 216.941 , the provisions of KRS Chapters 211, 216, 311, 312, or 314 shall not apply with respect to itinerant providers, licensing, or certification and all requirements regarding display of a license or certification shall be satisfied by the presentation for inspection, upon request, of a photocopy of the applicable license, certificate, or statement of exemption from the state, territory, district, or possession of the United States in which the provider is licensed, certified, or exempt.

History. Enact. Acts 1998, ch. 505, § 3, effective July 15, 1998; 2002, ch. 142, § 3, effective July 15, 2002.

216.943. Legislative findings.

The General Assembly of the Commonwealth finds that access to high-quality health care services is a concern of all persons; that access to such services is limited for some residents of the Commonwealth, particularly those residing in remote rural areas or inner cities; that physicians and other health care providers have traditionally worked to assure access to health care services; and that many health care providers from the Commonwealth and other states are willing to volunteer their services to address the health care needs of Kentuckians who may otherwise not be able to obtain such services. Therefore, it is the purpose of KRS 216.940 to 216.945 to encourage and facilitate the charitable provision of health care services within the Commonwealth.

History. Enact. Acts 1998, ch. 505, § 4, effective July 15, 1998.

216.945. Short title for KRS 216.940 to 216.945.

KRS 216.940 to 216.945 may be cited as the Kentucky Charitable Health Care Services Act.

History. Enact. Acts 1998, ch. 505, § 5, effective July 15, 1998.

Penalties

216.990. Penalty. [Renumbered.]

Compiler’s Notes.

This section (2094; amend. Acts 1952, ch. 16, § 11, effective July 1, 1952; 1960, ch. 87, § 10; 1962, ch. 112, § 9; 1972, ch. 149, § 9; 1974, ch. 352, § 1(2); 1980, ch. 135, § 34, effective July 15, 1980) was renumbered as KRS 216B.990(3) by the Reviser of Statutes pursuant to KRS 7.136 .

CHAPTER 216A Licensing of Nursing Home Administrators

216A.010. Definitions.

As used in this chapter:

  1. “Board” means the Kentucky Board of Licensure for Long-term Care Administrators established in KRS 216A.040 ;
  2. “Cabinet” means the Cabinet for Health and Family Services;
  3. “Long-term care administrator” means any individual responsible for planning, organizing, directing, and controlling the operation of a licensed long-term care facility, or who in fact performs those functions, whether or not those functions are shared by one (1) or more other persons;
  4. “Long-term care facility” means a health care facility which is defined by the cabinet to be an intermediate care facility, skilled-nursing facility, nursing facility in accordance with Pub. L. No. 100-203, nursing home, or intermediate care facility for individuals with an intellectual or developmental disability; and
  5. “Resident” means any person who is admitted to a long-term care facility.

History. Enact. Acts 1970, ch. 276, § 2; 2012, ch. 129, § 1, effective July 12, 2012; 2012, ch. 158, § 55, effective July 12, 2012.

Legislative Research Commission Note.

(7/12/2012). This statute was amended by 2012 Ky. Acts chs. 129 and 158, which do not appear to be in conflict and have been codified together. The amendments are identical, except that in subsection (1), ch. 129 refers to KRS 216A.040 (“Section 4 of this Act”) and ch. 158 refers to KRS 216A.030 (“Section 57 of this Act”). It is clear from the context that the reference in both bills is intended to be to KRS 216A.040 , and the Reviser of Statutes has corrected this manifest clerical or typographical error under KRS 7.136(1).

(7/12/2012). 2012 Ky. Acts ch. 146, sec. 144, directs the Reviser of Statutes to replace references in the statutes to “mentally retarded” with “individuals with an intellectual disability.” A reference in 2012 Ky. Acts ch. 129, sec. 1(4) (this statute), to “the mentally retarded and developmentally disabled” has been changed in codification to “individuals with an intellectual or developmental disability” to comply with the directive in 2012 Ky. Acts ch. 146 and usage found elsewhere in the statutes.

216A.020. Short title.

This chapter may be cited as the “Kentucky Long-term Care Administrators Licensure Act of 2012.”

History. Enact. Acts 1970, ch. 276, § 1; 2012, ch. 129, § 2, effective July 12, 2012; 2012, ch. 158, § 56, effective July 12, 2012.

Legislative Research Commission Note.

(7/12/2012). This statute was amended by 2012 Ky. Acts chs. 129 and 158, which do not appear to be in conflict and have been codified together.

216A.030. Supervision and license required.

No licensed long-term care facility shall operate except under the supervision of a long-term care administrator, unless approved by the board through administrative regulation, and no person shall be a long-term care administrator unless he or she is the holder of a long-term care administrator’s license issued pursuant to this chapter.

History. Enact. Acts 1970, ch. 276, § 3; 2012, ch. 129, § 3, effective July 12, 2012; 2012, ch. 158, § 57, effective July 12, 2012.

Legislative Research Commission Note.

(7/12/2012). This statute was amended by 2012 Ky. Acts chs. 129 and 158, which do not appear to be in conflict and have been codified together.

216A.040. Kentucky Board of Licensure for Long-term Care Administrators — Membership.

There shall be a Kentucky Board of Licensure for Long-term Care Administrators located within the Public Protection Cabinet for administrative and budgetary purposes. The board shall be composed of ten (10) members. The secretary of the Cabinet for Health and Family Services, or his or her designee, shall be an ex officio member of the board. The other members of the board shall be appointed by the Governor. One (1) member shall be a practicing hospital administrator, to be appointed from a list of two (2) names submitted by the Kentucky Hospital Association. One (1) member shall be a practicing medical physician, to be appointed from a list of two (2) names submitted by the Kentucky State Medical Association. One (1) member shall be an educator in the field of allied health services. One (1) member shall be a citizen at large who is not associated with or financially interested in the practice or business regulated. One (1) member shall be a practicing long-term care administrator appointed from a list of two (2) names submitted by LeadingAge Kentucky. The other four (4) members shall be practicing long-term care administrators appointed from a list of two (2) names for each vacancy submitted by the Kentucky Association of Health Care Facilities and duly licensed under this chapter. No person who has been disciplined in the previous five (5) years by the board, or by another state’s board of licensure governing the same profession, shall be appointed to the board.

History. Enact. Acts 1970, ch. 276, § 4; 1974, ch. 74, Art. VI, § 83; 1976, ch. 206, § 2; 1992, ch. 259, § 3, effective July 14, 1992; 1998, ch. 426, § 447, effective July 15, 1998; 2005, ch. 99, § 503, effective June 20, 2005; 2012, ch. 129, § 4, effective July 12, 2012; 2012, ch. 158, § 58, effective July 12, 2012.

Legislative Research Commission Note.

(7/12/2012). This statute was amended by 2012 Ky. Acts chs. 129 and 158, which do not appear to be in conflict and have been codified together.

Research References and Practice Aids

Kentucky Law Journal.

Comments, Pre-complaint Investigations Under The Kentucky Consumer Protection Act: Validity and Scope of the Civil Investigation Demand, 65 Ky. L.J. 169 (1976-77).

216A.045. Board placed in Division of Occupations and Professions. [Repealed.]

Compiler’s Note.

This section (Enact. Acts 1974, ch. 74, Art. VI, § 12(1); 2009, ch. 12, § 47, effective June 25, 2009) was repealed by Acts 2010, ch. 24, § 1936, effective July 15, 2010.

216A.050. Terms of board members — Consecutive terms restricted.

The term of office of each member shall be four (4) years or until a successor is appointed and qualified. No appointive member shall serve more than two (2) full consecutive terms.

History. Enact. Acts 1970, ch. 276, § 5; 2012, ch. 129, § 5, effective July 12, 2012; 2012, ch. 158, § 59, effective July 12, 2012.

Legislative Research Commission Note.

(7/12/2012). This statute was amended by 2012 Ky. Acts chs. 129 and 158, which do not appear to be in conflict and have been codified together.

216A.060. Officers — Meetings — Quorum — Technical advisory committees — Compensation.

  1. The board shall elect annually from its membership a chair and vice chair. The board shall hold three (3) or more meetings each year. At any meeting a majority of the appointed members with unexpired terms shall constitute a quorum. The board may procure specialized consultation through the formation of such technical advisory committees as it may deem necessary in the execution of its responsibilities.
  2. Members of the board shall receive per diem compensation to be established by administrative regulation. This compensation shall not exceed one hundred twenty dollars ($120) per day. Members shall be reimbursed for actual and necessary expenses.

History. Enact. Acts 1970, ch. 276, § 6; 1978, ch. 154, § 18, effective June 17, 1978; 2012, ch. 129, § 6, effective July 12, 2012; 2012, ch. 158, § 60, effective July 12, 2012.

Legislative Research Commission Note.

(7/12/2012). This statute was amended by 2012 Ky. Acts chs. 129 and 158, which do not appear to be in conflict and have been codified together.

216A.070. Duties and powers of board.

  1. The board shall:
    1. Develop, impose, and enforce standards which must be met by individuals in order to receive a license as a long-term care administrator, which standards shall be designed to ensure that long-term care administrators will be individuals who are of good character and are otherwise suitable, and who, by training or experience in the field of institutional administration, are qualified to serve as nursing home administrators;
    2. Develop and apply appropriate techniques, including examinations and investigations, for determining whether an individual meets the standards;
    3. Issue licenses to individuals determined, after application of appropriate techniques, to meet established standards;
    4. Establish and carry out procedures designed to ensure that individuals licensed as long-term care administrators will, during any period that they serve as such, comply with the requirements of the standards;
    5. Receive, investigate, and take appropriate action with respect to any charge or complaint filed with the board to the effect that any individual licensed as a nursing home administrator has failed to comply with the requirements of the standards; and
    6. Apply commensurate disciplinary action, following a hearing pursuant to KRS Chapter 13B, including permanent license revocation, suspension, or placement of probationary conditions on the licensee, issuance of a fine not to exceed two thousand dollars ($2,000) per violation, or admonishing the licensee.
  2. The board or any committee or member thereof or any hearing officer designated by the board, acting in an official capacity, shall have the authority to conduct administrative hearings in accordance with KRS Chapter 13B concerning all matters within the jurisdiction of the board.
  3. The board shall also have the authority to promulgate administrative regulations necessary for the proper performance of its duties, and to take other actions necessary to enable the state to meet the requirements set forth in Section 1908 of the Social Security Act, the federal rules and regulations promulgated thereunder, and other pertinent federal authority or amendment thereto.
  4. The board may, when emergency conditions warrant, as determined by the board, authorize the issuance of a temporary permit to an individual to practice the art of long-term care administration if it finds the authorization will not endanger the health and safety of the occupants of the licensed long-term care facility. A temporary permit shall be valid for a period determined by the board not to exceed nine (9) months and shall not be renewed. The fee for a temporary permit shall be determined by regulations of the board.

History. Enact. Acts 1970, ch. 276, § 7; 1996, ch. 318, § 120, effective July 15, 1996; 2012, ch. 129, § 7, effective July 12, 2012; 2012, ch. 158, § 61, effective July 12, 2012; 2020 ch. 120, § 1, effective July 15, 2020.

Compiler’s Notes.

Section 1908 of the Social Security Act, referred to in subsection (3) of this section, is compiled as 42 USCS § 1396g.

216A.080. Requirements for issuance of license.

  1. No person shall be eligible to practice long-term care administration in this state unless:
    1. He or she shall make written application to the board on such forms as are provided therefor;
    2. He or she is a citizen of the United States or has declared his or her intent to become a citizen of the United States;
    3. He or she provides proof satisfactory to the board that he or she is of good moral character and is otherwise suitable, if in accordance with KRS Chapter 335B;
    4. He or she has passed an examination approved by the board by promulgation of an administrative regulation; and
    5. He or she meets such other requirements as may be established by the board by promulgation of an administrative regulation, so long as the requirements are uniform and are applied to all other applicants for a license.
  2. When an applicant has met the requirements as provided herein, the board shall issue the applicant a license to practice long-term care administration in this state.

HISTORY: Enact. Acts 1970, ch. 276, § 8; 2012, ch. 129, § 8, effective July 12, 2012; 2012, ch. 158, § 62, effective July 12, 2012; 2017 ch. 158, § 38, effective June 29, 2017.

216A.090. Renewal of license.

Every holder of a long-term care administrator’s license shall renew his or her license biennially by making application to the board either online via Internet access or on forms provided therefor. The board may refuse to renew any license for failure to comply with the provisions of this chapter or the administrative regulations promulgated under this chapter, including continuing education requirements.

History. Enact. Acts 1970, ch. 276, § 9; 2012, ch. 129, § 9, effective July 12, 2012; 2012, ch. 158, § 63, effective July 12, 2012.

Legislative Research Commission Note.

(7/12/2012). This statute was amended by 2012 Ky. Acts chs. 129 and 158, which do not appear to be in conflict and have been codified together.

216A.100. Provisional license. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 276, § 10) was repealed by Acts 2012, ch. 129, § 13, effective July 12, 2012.

216A.110. Fees and charges.

  1. The board shall prescribe and collect reasonable fees and charges for processing applications, examinations and issuance of licenses, including renewals.
  2. All fees and charges collected under the provisions of this chapter shall be paid into the State Treasury and credited to a trust and agency fund to be used by the board in defraying the cost and expenses in the administration of this chapter.

History. Enact. Acts 1970, ch. 276, § 11.

216A.120. Courses of instruction — Approval of out-of-state courses. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 276, § 12) was repealed by Acts 2012, ch. 129, § 13, effective July 12, 2012.

216A.130. Reciprocity.

  1. The board, in its discretion, and otherwise subject to the provisions of this chapter and the administrative regulations of the board promulgated thereunder prescribing the qualifications for a long-term care administrator license, may issue a license to a long-term care administrator possessing a license issued by the proper authorities of any other state, upon payment of a fee set by the board, and upon submission of evidence satisfactory to the board:
    1. That the other state maintained a system and standard of qualifications and examinations for a long-term care administrator license which were substantially equivalent to those required in this state at the time the other license was issued by the other state; and
    2. That the license was issued by the other state at least two (2) years prior to application for endorsement.
  2. The board, in its discretion, may refuse to issue a license to a long-term care administrator possessing a license issued by the proper authorities of any other state, if the applicant for endorsement has been disciplined by the other state’s board in the past five (5) years.

History. Enact. Acts 1970, ch. 276, § 13; 2012, ch. 129, § 10, effective July 12, 2012; 2012, ch. 158, § 64, effective July 12, 2012.

Legislative Research Commission Note.

(7/12/2012). This statute was amended by 2012 Ky. Acts chs. 129 and 158, which do not appear to be in conflict and have been codified together.

216A.140. Appeal.

Persons aggrieved by orders of the board may appeal therefrom to the Franklin Circuit Court and thence to the Court of Appeals in the manner provided by law.

History. Enact. Acts 1970, ch. 276, § 14.

216A.150. Violations.

It shall be a misdemeanor for any person to:

  1. Sell or fraudulently obtain or furnish any license or aid or abet therein;
  2. Practice as a long-term care administrator, under cover of any license illegally or fraudulently obtained or unlawfully issued;
  3. Practice as a long-term care administrator or use in connection with his or her name any designation tending to imply that he or she is a long-term care administrator unless duly licensed to so practice under the provisions of this chapter; or
  4. Practice as a long-term care administrator during the time his or her license issued under the provisions of this chapter shall be suspended or revoked.

History. Enact. Acts 1970, ch. 276, § 15(1); 2012, ch. 129, § 11, effective July 12, 2012; 2012, ch. 158, § 65, effective July 12, 2012.

Legislative Research Commission Note.

(7/12/2012). This statute was amended by 2012 Ky. Acts chs. 129 and 158, which do not appear to be in conflict and have been codified together.

216A.990. Penalties.

Misdemeanors shall be punishable by a fine of not more than one hundred dollars ($100). Each day of violation shall constitute a separate offense.

History. Enact. Acts 1970, ch. 276, § 15(2); 2012, ch. 129, § 12, effective July 12, 2012; 2012, ch. 158, § 66, effective July 12, 2012.

Legislative Research Commission Note.

(7/12/2012). This statute was amended by 2012 Ky. Acts chs. 129 and 158, which do not appear to be in conflict and have been codified together.

CHAPTER 216B Licensure and Regulation of Health Facilities and Services

216B.010. Legislative findings and purposes.

The General Assembly finds that the licensure of health facilities and health services is a means to insure that the citizens of this Commonwealth will have safe, adequate, and efficient medical care; that the proliferation of unnecessary health-care facilities, health services, and major medical equipment results in costly duplication and underuse of such facilities, services, and equipment; and that such proliferation increases the cost of quality health care within the Commonwealth. Therefore, it is the purpose of this chapter to fully authorize and empower the Cabinet for Health and Family Services to perform any certificate-of-need function and other statutory functions necessary to improve the quality and increase access to health-care facilities, services, and providers, and to create a cost-efficient health-care delivery system for the citizens of the Commonwealth.

History. Enact. Acts 1980, ch. 135, § 1, effective July 15, 1980; 1982, ch. 347, § 1, effective July 15, 1982; 1988, ch. 210, § 4, effective July 15, 1988; 1994, ch. 512, Part 7, § 22, effective July 15, 1994; 1996, ch. 371, § 36, effective July 15, 1996; 1998, ch. 426, § 448, effective July 15, 1998; 2005, ch. 99, § 504, effective June 20, 2005.

NOTES TO DECISIONS

1.Evidence of Violations.

Where numerous witnesses testified as to deficiencies in nursing home and administrator of home admitted to lack of continuous nursing services required by regulations, decision, based on recommendation of hearing officer, to close home was supported by substantial evidence; conclusion of hearing officer that home was rendering satisfactory care to patients did not indicate that legislative intent was being met since such intent could not be satisfied where the violations at issue had a direct effect upon the safety, adequacy and efficiency of the medical care. Our Lady of the Woods, Inc. v. Commonwealth, Kentucky Health Facilities & Health Services Certificate of Need & Licensure Bd., 655 S.W.2d 14, 1982 Ky. App. LEXIS 294 (Ky. Ct. App. 1982).

2.Certificate of Need.

Administrative regulation relating to whether a certificate of need (CON) application is consistent with the State Health Plan (SHP) refers to the SHP in effect at the time of the Cabinet for Health and Family Services ultimate decision, and the use of outdated figures on remand is contrary to the overarching regulatory purpose. Therefore, an evidentiary restriction on a remand hearing in a CON case was inconsistent with Kentucky law relating to the issuances of CONs, and the use of most recent information did not deprive an applicant of due process. Comprehensive Home Health Servs. v. Prof'l Home Health Care Agency, Inc., 434 S.W.3d 433, 2013 Ky. LEXIS 465 ( Ky. 2013 ).

3.Public Policy Claim.

Former employee's public policy wrongful discharge claim was not preempted because the chapter did not create a statutory cause of action nor did it provide a remedy. MacGlashan v. ABS Lincs KY, Inc., 84 F. Supp. 3d 595, 2015 U.S. Dist. LEXIS 10282 (W.D. Ky. 2015 ).

Cited:

Baptist Hospital, Inc. v. Humana of Kentucky, Inc., 672 S.W.2d 669, 1984 Ky. App. LEXIS 532 (Ky. Ct. App. 1984); Humana of Kentucky, Inc. v. NKC Hospitals, Inc., 751 S.W.2d 369, 1988 Ky. LEXIS 24 ( Ky. 1988 ); Commonwealth v. Family Home Health Care, Inc., 98 S.W.3d 524, 2003 Ky. App. LEXIS 30 (Ky. Ct. App. 2003); Gilbert v. Commonwealth Cabinet, 291 S.W.3d 712, 2008 Ky. App. LEXIS 43 (Ky. Ct. App. 2008).

Opinions of Attorney General.

The effect of the 1982 amendments to KRS Chapter 216B has been to preempt the field of licensure standards and licensing procedures and regulations relating thereto, and other provisions of Chapter 216B not related to a certificate of need, which affect ambulance service. OAG 82-576 .

A group of physicians who proposed to purchase a linear accelerator and open a radiation clinic would not be required to obtain a certificate of need under KRS 216B.061 in order to operate the clinic. OAG 83-135 .

Research References and Practice Aids

Kentucky Law Journal.

Article: Dirty Business: Legal Prophylaxis for Nosocomial Infections, 97 Ky. L.J. 505 (2008/2009).

Northern Kentucky Law Review.

Costich, The Kentucky Health Reform Act, 22 N. Ky. L. Rev. 381 (1995).

216B.015. Definitions for chapter.

Except as otherwise provided, for purposes of this chapter, the following definitions shall apply:

  1. “Abortion facility” means any place in which an abortion is performed;
  2. “Administrative regulation” means a regulation adopted and promulgated pursuant to the procedures in KRS Chapter 13A;
  3. “Affected persons” means the applicant; any person residing within the geographic area served or to be served by the applicant; any person who regularly uses health facilities within that geographic area; health facilities located in the health service area in which the project is proposed to be located which provide services similar to the services of the facility under review; health facilities which, prior to receipt by the agency of the proposal being reviewed, have formally indicated an intention to provide similar services in the future; and the cabinet and third-party payors who reimburse health facilities for services in the health service area in which the project is proposed to be located;
    1. “Ambulatory surgical center” means a health facility: (4) (a) “Ambulatory surgical center” means a health facility:
      1. Licensed pursuant to administrative regulations promulgated by the cabinet;
      2. That provides outpatient surgical services, excluding oral or dental procedures; and
      3. Seeking recognition and reimbursement as an ambulatory surgical center from any federal, state, or third-party insurer from which payment is sought.
    2. An ambulatory surgical center does not include the private offices of physicians where in-office outpatient surgical procedures are performed as long as the physician office does not seek licensure, certification, reimbursement, or recognition as an ambulatory surgical center from a federal, state, or third-party insurer.
    3. Nothing in this subsection shall preclude a physician from negotiating enhanced payment for outpatient surgical procedures performed in the physician’s private office so long as the physician does not seek recognition or reimbursement of his or her office as an ambulatory surgical center without first obtaining a certificate of need or license required under KRS 216B.020 and 216B.061 ;
  4. “Applicant” means any physician’s office requesting a major medical equipment expenditure exceeding the capital expenditure minimum, or any person, health facility, or health service requesting a certificate of need or license;
  5. “Cabinet” means the Cabinet for Health and Family Services;
  6. “Capital expenditure” means an expenditure made by or on behalf of a health facility which:
    1. Under generally accepted accounting principles is not properly chargeable as an expense of operation and maintenance or is not for investment purposes only; or
    2. Is made to obtain by lease or comparable arrangement any facility or part thereof or any equipment for a facility or part thereof;
  7. “Capital expenditure minimum” means the annually adjusted amount set by the cabinet. In determining whether an expenditure exceeds the expenditure minimum, the cost of any studies, surveys, designs, plans, working drawings, specifications, and other activities essential to the improvement, expansion, or replacement of any plant or any equipment with respect to which the expenditure is made shall be included. Donations of equipment or facilities to a health facility which if acquired directly by the facility would be subject to review under this chapter shall be considered a capital expenditure, and a transfer of the equipment or facilities for less than fair market value shall be considered a capital expenditure if a transfer of the equipment or facilities at fair market value would be subject to review;
  8. “Certificate of need” means an authorization by the cabinet to acquire, to establish, to offer, to substantially change the bed capacity, or to substantially change a health service as covered by this chapter;
  9. “Certified surgical assistant” means a certified surgical assistant or certified first assistant who is certified by the National Surgical Assistant Association on the Certification of Surgical Assistants, the Liaison Council on Certification of Surgical Technologists, or the American Board of Surgical Assistants. The certified surgical assistant is an unlicensed health-care provider who is directly accountable to a physician licensed under KRS Chapter 311 or, in the absence of a physician, to a registered nurse licensed under KRS Chapter 314;
  10. “Continuing care retirement community” means a community that provides, on the same campus, a continuum of residential living options and support services to persons sixty (60) years of age or older under a written agreement. The residential living options shall include independent living units, nursing home beds, and either assisted living units or personal care beds;
  11. “Formal review process” means the ninety (90) day certificate-of-need review conducted by the cabinet;
  12. “Health facility” means any institution, place, building, agency, or portion thereof, public or private, whether organized for profit or not, used, operated, or designed to provide medical diagnosis, treatment, nursing, rehabilitative, or preventive care and includes alcohol abuse, drug abuse, and mental health services. This shall include but shall not be limited to health facilities and health services commonly referred to as hospitals, psychiatric hospitals, physical rehabilitation hospitals, chemical dependency programs, nursing facilities, nursing homes, personal care homes, intermediate care facilities, family care homes, outpatient clinics, ambulatory care facilities, ambulatory surgical centers, emergency care centers and services, ambulance providers, hospices, community mental health centers, home health agencies, kidney disease treatment centers and freestanding hemodialysis units, and others providing similarly organized services regardless of nomenclature;
  13. “Health services” means clinically related services provided within the Commonwealth to two (2) or more persons, including but not limited to diagnostic, treatment, or rehabilitative services, and includes alcohol, drug abuse, and mental health services;
  14. “Independent living” means the provision of living units and supportive services, including but not limited to laundry, housekeeping, maintenance, activity direction, security, dining options, and transportation;
  15. “Intraoperative surgical care” includes the practice of surgical assisting in which the certified surgical assistant or physician assistant is working under the direction of the operating physician as a first or second assist, and which may include the following procedures:
    1. Positioning the patient;
    2. Preparing and draping the patient for the operative procedure;
    3. Observing the operative site during the operative procedure;
    4. Providing the best possible exposure of the anatomy incident to the operative procedure;
    5. Assisting in closure of incisions and wound dressings; and
    6. Performing any task, within the role of an unlicensed assistive person, or if the assistant is a physician assistant, performing any task within the role of a physician assistant, as required by the operating physician incident to the particular procedure being performed;
  16. “Major medical equipment” means equipment which is used for the provision of medical and other health services and which costs in excess of the medical equipment expenditure minimum. In determining whether medical equipment has a value in excess of the medical equipment expenditure minimum, the value of studies, surveys, designs, plans, working drawings, specifications, and other activities essential to the acquisition of the equipment shall be included;
  17. “Nonsubstantive review” means an expedited review conducted by the cabinet of an application for a certificate of need as authorized under KRS 216B.095 ;
  18. “Nonclinically related expenditures” means expenditures for:
    1. Repairs, renovations, alterations, and improvements to the physical plant of a health facility which do not result in a substantial change in beds, a substantial change in a health service, or the addition of major medical equipment, and do not constitute the replacement or relocation of a health facility; or
    2. Projects which do not involve the provision of direct clinical patient care, including but not limited to the following:
      1. Parking facilities;
      2. Telecommunications or telephone systems;
      3. Management information systems;
      4. Ventilation systems;
      5. Heating or air conditioning, or both;
      6. Energy conservation; or
      7. Administrative offices;
  19. “Party to the proceedings” means the applicant for a certificate of need and any affected person who appears at a hearing on the matter under consideration and enters an appearance of record;
  20. “Perioperative nursing” means a practice of nursing in which the nurse provides preoperative, intraoperative, and postoperative nursing care to surgical patients;
  21. “Person” means an individual, a trust or estate, a partnership, a corporation, an association, a group, state, or political subdivision or instrumentality including a municipal corporation of a state;
  22. “Physician assistant” means the same as the definition provided in KRS 311.550 ;
  23. “Record” means, as applicable in a particular proceeding:
    1. The application and any information provided by the applicant at the request of the cabinet;
    2. Any information provided by a holder of a certificate of need or license in response to a notice of revocation of a certificate of need or license;
    3. Any memoranda or documents prepared by or for the cabinet regarding the matter under review which were introduced at any hearing;
    4. Any staff reports or recommendations prepared by or for the cabinet;
    5. Any recommendation or decision of the cabinet;
    6. Any testimony or documentary evidence adduced at a hearing;
    7. The findings of fact and opinions of the cabinet or the findings of fact and recommendation of the hearing officer; and
    8. Any other items required by administrative regulations promulgated by the cabinet;
  24. “Registered nurse first assistant” means one who:
    1. Holds a current active registered nurse licensure;
    2. Is certified in perioperative nursing; and
    3. Has successfully completed and holds a degree or certificate from a recognized program, which shall consist of:
      1. The Association of Operating Room Nurses, Inc., Core Curriculum for the registered nurse first assistant; and
      2. One (1) year of postbasic nursing study, which shall include at least forty-five (45) hours of didactic instruction and one hundred twenty (120) hours of clinical internship or its equivalent of two (2) college semesters.

        A registered nurse who was certified prior to 1995 by the Certification Board of Perioperative Nursing shall not be required to fulfill the requirements of paragraph (c) of this subsection;

  25. “Secretary” means the secretary of the Cabinet for Health and Family Services;
  26. “Sexual assault examination facility” means a licensed health facility, emergency medical facility, primary care center, or a children’s advocacy center or rape crisis center that is regulated by the Cabinet for Health and Family Services, and that provides sexual assault examinations under KRS 216B.400 ;
  27. “State health plan” means the document prepared triennially, updated annually, and approved by the Governor;
  28. “Substantial change in a health service” means:
    1. The addition of a health service for which there are review criteria and standards in the state health plan; or
    2. The addition of a health service subject to licensure under this chapter;
  29. “Substantial change in bed capacity” means the addition or reduction of beds by licensure classification within a health facility;
  30. “Substantial change in a project” means a change made to a pending or approved project which results in:
    1. A substantial change in a health service, except a reduction or termination of a health service;
    2. A substantial change in bed capacity, except for reductions;
    3. A change of location; or
    4. An increase in costs greater than the allowable amount as prescribed by regulation;
  31. “To acquire” means to obtain from another by purchase, transfer, lease, or other comparable arrangement of the controlling interest of a capital asset or capital stock, or voting rights of a corporation. An acquisition shall be deemed to occur when more than fifty percent (50%) of an existing capital asset or capital stock or voting rights of a corporation is purchased, transferred, leased, or acquired by comparable arrangement by one (1) person from another person;
  32. “To batch” means to review in the same review cycle and, if applicable, give comparative consideration to all filed applications pertaining to similar types of services, facilities, or equipment affecting the same health service area;
  33. “To establish” means to construct, develop, or initiate a health facility;
  34. “To obligate” means to enter any enforceable contract for the construction, acquisition, lease, or financing of a capital asset. A contract shall be considered enforceable when all contingencies and conditions in the contract have been met. An option to purchase or lease which is not binding shall not be considered an enforceable contract; and
  35. “To offer” means, when used in connection with health services, to hold a health facility out as capable of providing, or as having the means of providing, specified health services.

HISTORY: Enact. Acts 1980, ch. 135, § 2, effective July 15, 1980; 1982, ch. 347, § 2, effective July 15, 1982; 1988, ch. 210, § 5, effective July 15, 1988; 1990, ch. 235, § 6, effective July 13, 1990; 1990, ch. 499, § 1, effective July 13, 1990; 1994, ch. 512, Part 7, § 23, effective July 15, 1994; 1996, ch. 233, § 8, effective July 15, 1996; 1996, ch. 371, § 37, effective July 15, 1996; 1998, ch. 426, § 449, effective July 15, 1998; 1998, ch. 582, § 1, effective July 15, 1998; 2000, ch. 96, § 1, effective July 14, 2000; 2000, ch. 142, § 5, effective July 14, 2000; 2000, ch. 264, § 1, effective July 14, 2000; 2000, ch. 538, § 1, effective July 14, 2000; 2001, ch. 36, § 1, effective June 21, 2001; 2005, ch. 99, § 60, effective June 20, 2005; 2012, ch. 103, § 1, effective July 12, 2012; 2012, ch. 146, § 106, effective July 12, 2012; 2018 ch. 143, § 9, effective July 14, 2018.

Compiler’s Notes.

Section 9 of Acts 1998, ch. 582, stated: “This Act shall not be construed as repealing any of the laws of the Commonwealth relating to abortion facilities but shall be considered supplementary to them.”

Section 10 of Acts 1998, ch. 582, stated: “If any provision of this Act or its application is held invalid, the invalidity shall not affect other provisions or applications of this Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.”

NOTES TO DECISIONS

1.Applicability.

The imposition of the provisions of KRS Chapters 216 and 216B and all their attendant regulations upon a private religious convalescent retirement home operated exclusively for the benefit of a religious order was an unconstitutional infringement upon the latter’s religious liberty, as well as an unreasonable intrusion of a governmental police power. Cabinet for Human Resources Kentucky Health Facilities v. Provincial Convent of Good Shepherd, Inc., 701 S.W.2d 137, 1985 Ky. App. LEXIS 616 (Ky. Ct. App. 1985).

2.Certificate of Need.

Where the Certificate of Need Authority issued an advisory opinion that the hospital’s existing Certificates of Need (CONs) were adequate to cover the new pediatrics program, the competitor hospital had standing to seek a declaration of rights, including the right to demand a formal statutory hearing covering whether the hospital’s present CONs were sufficient to cover the pediatric procedures in question and, if not, whether an additional CON should be granted. Humana of Kentucky, Inc. v. NKC Hospitals, Inc., 751 S.W.2d 369, 1988 Ky. LEXIS 24 ( Ky. 1988 ).

Medical company was not required to obtain a certificate of need in order to provide a single photon emission computed tomography (SPECT) unit to hospitals for use by them in providing medical diagnoses to their patients where there was insufficient evidence to support a finding that company had established a health facility as company merely proposed to lease the SPECT unit to hospitals and provide the technician to operate it. Commission for Health Economics Control v. Medical Consultants Imaging Co., 844 S.W.2d 437, 1992 Ky. App. LEXIS 246 (Ky. Ct. App. 1992).

In a case involving an application for a certificate of need, an error was committed when a remand was limited to the incorrect numbers used at a 2006 hearing; the language of former 900 Ky. Admin. Regs. 6:050, § 7(1)(b), current 900 Ky. Admin. Regs. 6:070, and a state health plan required the use of the latest numbers available at the time of the decision. Prof'l Home Health Care Agency, Inc. v. Commonwealth, 2011 Ky. App. LEXIS 99 (Ky. Ct. App. June 10, 2011), aff'd, 434 S.W.3d 433, 2013 Ky. LEXIS 465 ( Ky. 2013 ).

“Health service area” set forth in KRS 216B.015(3) should be defined by the state health plan, and under the state health plan, the county and contiguous counties should be considered the “health service area.” Thus, a facility located in the county or a contiguous county qualifies as an affected person with standing to challenge an application for certificate of need under the nonsubstantive review procedure; therefore, a convalescent center located in Kenton County, Kentucky, had standing to challenge a certificate of need sought by an applicant seeking a new facility in Boone County, Kentucky. Baptist Convalescent Ctr., Inc. v. Boonespring Transitional Care Ctr., LLC, 405 S.W.3d 498, 2012 Ky. App. LEXIS 199 (Ky. Ct. App. 2012).

3.Substantial Change in Health Service.

Hospital was merely increasing the quantity of cardiac catheterization labs and was not addding to, or even changing, the scope of services it already provided; accordingly, lower court did not err in concluding that hospital did not “make a substantial change in a health service” within the meaning of KRS 216B.061(1) and subsection (20) of this section requiring a Certificate of Need. Cabinet for Human Resourcs, Interim Office of Health Planning & Certification v. Jewish Hosp. Healthcare Servs., 932 S.W.2d 388, 1996 Ky. App. LEXIS 171 (Ky. Ct. App. 1996).

Circuit Court erred in its determination that the on-going drawing of blood was a substantial change in a health service; the health services provider was acting within the legitimate parameters of its license in drawing blood from patients in conjunction with its provision of mobile infusion therapy services because there was no change in the scope or character of the health service being provided, much less a “substantial change” within the meaning of KRS 216B.061(1), 216B.015(28). Commonwealth v. Family Home Health Care, Inc., 98 S.W.3d 524, 2003 Ky. App. LEXIS 30 (Ky. Ct. App. 2003).

4.Record.

Pursuant to KRS 216B.085(4) and 216B.015(17)(d), the Kentucky Health Policy Board committed reversible error by failing to include the staff reports in the administrative record and by failing to grant a licensed home health agency access to such records in denying its application for a certificate of need to expand its existing home health services to a county. Martin County Home Health Care v. Cabinet for Health & Family Servs., 214 S.W.3d 324, 2007 Ky. App. LEXIS 13 (Ky. Ct. App. 2007).

Cited:

Pie Mut. Ins. Co. v. Kentucky Medical Ins. Co., 782 S.W.2d 51, 1990 Ky. App. LEXIS 2 (Ky. Ct. App. 1990); Jewish Hosp. v. Baptist Health Care Sys., 902 S.W.2d 844, 1995 Ky. App. LEXIS 136 (Ky. Ct. App. 1995); Gilbert v. Commonwealth Cabinet, 291 S.W.3d 712, 2008 Ky. App. LEXIS 43 (Ky. Ct. App. 2008).

Opinions of Attorney General.

If a fire district’s firemen are only involved in the rendering of emergency first aid treatment and care, and not in the providing of an ambulance service, then the fire district is not subject to the provisions and requirements of KRS 216B.015 et seq. OAG 80-660 .

A local government, including urban county government, may by ordinance treat any facet of the “certificate of need” concept which may be practically applied to ambulance service, and which treatment is authorized by statute. OAG 82-576 .

A license must be defined as authorization by CHR to operate a facility while a Certificate of Need is an authorization from the Commission to establish or initiate a health facility or service. OAG 90-82 .

A license to operate a health facility is separate and distinct from a Certificate of Need and the two are not necessarily dependent upon one another for issuance or denial. OAG 90-82 .

Research References and Practice Aids

Northern Kentucky Law Review.

Costich, The Kentucky Health Reform Act, 22 N. Ky. L. Rev. 381 (1995).

216B.017. Health facility not to discriminate against physician on basis of degree in medicine or osteopathy.

Notwithstanding any other provision of law, no health facility licensed in the Commonwealth shall discriminate with respect to employment, staff, privileges, or the provision of professional services against a physician licensed to practice medicine on the basis of whether the physician holds a medical doctor (M.D.) or doctor of osteopathy (D.O.) degree.

History. Enact. Acts 2000, ch. 413, § 3, effective July 14, 2000.

216B.020. Certificate of need — Exemptions — Categories of care not exempted — Requirements for issuance of certificate of need.

  1. The provisions  of this chapter that relate to the issuance of a certificate of need  shall not apply to abortion facilities as defined in KRS 216B.015 ;  any hospital which does not charge its patients for hospital services  and does not seek or accept Medicare, Medicaid, or other financial  support from the federal government or any state government; assisted  living residences; family care homes; state veterans’ nursing  homes; services provided on a contractual basis in a rural primary-care  hospital as provided under KRS 216.380 ;  community mental health centers for services as defined in KRS Chapter  210; primary care centers; rural health clinics; private duty nursing  services operating as nursing pools; group homes;  licensed residential crisis stabilization units; licensed free-standing residential substance use disorder treatment  programs with sixteen (16) or fewer beds, but not including Levels  I and II psychiatric residential treatment facilities or licensed  psychiatric inpatient beds; outpatient behavioral health treatment,  but not including partial hospitalization programs; end stage renal  disease dialysis facilities, freestanding or hospital based; swing  beds; special clinics, including but not limited to wellness, weight  loss, family planning, disability determination, speech and hearing,  counseling, pulmonary care, and other clinics which only provide diagnostic  services with equipment not exceeding the major medical equipment  cost threshold and for which there are no review criteria in the state  health plan; nonclinically related expenditures; nursing home beds  that shall be exclusively limited to on-campus residents of a certified  continuing care retirement community; home health services provided  by a continuing care retirement community to its on-campus residents;  the relocation of hospital administrative or outpatient services into  medical office buildings which are on or contiguous to the premises  of the hospital; the relocation of acute  care beds which occur among acute care hospitals under common ownership  and which are located in the same area development district so long  as there is no substantial change in services and the relocation does  not result in the establishment of a new service at the receiving  hospital for which a certificate of need is required; the redistribution  of beds by licensure classification within an acute care hospital  so long as the redistribution does not increase the total licensed  bed capacity of the hospital; residential hospice facilities  established by licensed hospice programs; or the following health  services provided on site in an existing health facility when the  cost is less than six hundred thousand dollars ($600,000) and the  services are in place by December 30, 1991: psychiatric care where  chemical dependency services are provided, level one (1) and level  two (2) of neonatal care, cardiac catheterization, and open heart  surgery where cardiac catheterization services are in place as of  July 15, 1990. The provisions of this section shall not apply to nursing  homes, personal care homes, intermediate care facilities, and family  care homes; or nonconforming ambulance services as defined by administrative  regulation. These listed facilities or services shall be subject to  licensure, when applicable.
  2. Nothing in this  chapter shall be construed to authorize the licensure, supervision,  regulation, or control in any manner of:
    1. Private offices  and clinics of physicians, dentists, and other practitioners of the  healing arts, except any physician’s office that meets the  criteria set forth in KRS 216B.015 (5) or that meets the definition of an ambulatory surgical center as  set out in KRS 216B.015 ;
    2. Office buildings  built by or on behalf of a health facility for the exclusive use of  physicians, dentists, and other practitioners of the healing arts;  unless the physician’s office meets the criteria set forth  in KRS 216B.015(5), or unless the physician’s office is also an abortion facility  as defined in KRS 216B.015,  except no capital expenditure or expenses relating to any such building  shall be chargeable to or reimbursable as a cost for providing inpatient  services offered by a health facility;
    3. Outpatient health facilities or health services that:
      1. Do not provide services or hold patients  in the facility after midnight; and
      2. Are exempt from certificate of need and  licensure under subsection (3) of this section;
    4. Dispensaries and first-aid stations located within business or industrial  establishments maintained solely for the use of employees, if the  facility does not contain inpatient or resident beds for patients  or employees who generally remain in the facility for more than twenty-four  (24) hours;
    5. Establishments,  such as motels, hotels, and boarding houses, which provide domiciliary  and auxiliary commercial services, but do not provide any health related  services and boarding houses which are operated by persons contracting  with the United States Department of Veterans Affairs for boarding  services;
    6. The remedial  care or treatment of residents or patients in any home or institution  conducted only for those who rely solely upon treatment by prayer  or spiritual means in accordance with the creed or tenets of any recognized  church or religious denomination and recognized by that church or  denomination; and
    7. On-duty police  and fire department personnel assisting in emergency situations by  providing first aid or transportation when regular emergency units  licensed to provide first aid or transportation are unable to arrive  at the scene of an emergency situation within a reasonable time.
  3. The following outpatient categories of care shall be  exempt from certificate of need and licensure on July 14, 2018:
    1. Primary care centers;
    2. Special health clinics, unless the clinic  provides pain management services and is located off the campus of  the hospital that has majority ownership interest;
    3. Specialized medical technology services,  unless providing a State Health Plan service;
    4. Retail-based health clinics and ambulatory  care clinics that provide nonemergency, noninvasive treatment of patients;
    5. Ambulatory care clinics treating minor  illnesses and injuries;
    6. Mobile health services, unless providing  a service in the State Health Plan;
    7. Rehabilitation agencies;
    8. Rural health clinics; and
    9. Off-campus, hospital-acquired physician  practices.
  4. The exemptions established by subsections  (2) and (3) of this section shall not apply to the following categories  of care:
    1. An ambulatory surgical center as defined  by KRS 216B.015(4);
    2. A health facility or health service that  provides one (1) of the following types of services:
      1. Cardiac catheterization;
      2. Megavoltage radiation therapy;
      3. Adult day health care;
      4. Behavioral health services;
      5. Chronic renal dialysis;
      6. Birthing services; or
      7. Emergency services above the level of  treatment for minor illnesses or injuries;
    3. A pain management facility as defined  by KRS 218A.175(1);
    4. An abortion facility that requires licensure  pursuant to KRS 216B.0431 ; or
    5. A health facility or health service that  requests an expenditure that exceeds the major medical expenditure  minimum.
  5. An existing facility licensed as an intermediate  care or nursing home  shall notify the cabinet of its intent to change to a nursing facility  as defined in Public Law 100-203. A certificate of need  shall not be required for conversion of an intermediate care or  nursing home to the nursing facility licensure category.
  6. Ambulance services  owned and operated by a city government, which propose to provide  services in coterminous cities outside of the ambulance service’s  designated geographic service area, shall not be required to obtain  a certificate of need if the governing body of the city in which the  ambulance services are to be provided enters into an agreement with  the ambulance service to provide services in the city.
  7. Notwithstanding  any other provision of law, a continuing care retirement community’s  nursing home beds shall not be certified as Medicaid eligible unless  a certificate of need has been issued authorizing applications for  Medicaid certification. The provisions of subsection (5) of this section notwithstanding, a continuing care retirement community  shall not change the level of care licensure status of its beds without  first obtaining a certificate of need.

HISTORY: Enact. Acts 1980, ch. 135, § 3, effective July 15, 1980; 1982, ch. 347, § 3, effective July 15, 1982; 1984, ch. 301, § 2, effective July 13, 1984; 1986, ch. 31, § 3, effective February 28, 1986; 1988, ch. 436, § 2, effective July 15, 1988; 1990, ch. 235, § 7, effective July 13, 1990; 1990, ch. 499, § 2, effective July 13, 1990; 1992, ch. 61, § 4, effective March 16, 1992; 1994, ch. 512, Part 7, § 24, effective July 15, 1994; 1996, ch. 299, § 1, effective July 15, 1996; 1996, ch. 351, § 2, effective July 15, 1996; 1996, ch. 371, § 38, effective July 15, 1996; 1998, ch. 582, § 2, effective July 15, 1998; 2000, ch. 264, § 2, effective July 14, 2000; 2005, ch. 102, § 1, effective June 20, 2005; 2012, ch. 90, § 2, effective July 12, 2012; 2012, ch. 103, § 2, effective July 12, 2012; 2015 ch. 66, § 6, effective March 25, 2015; 2017 ch. 42, § 13, effective June 29, 2017; 2018 ch. 143, § 10, effective July 14, 2018.

Compiler’s Notes.

Section 9 of Acts 1998, ch. 582, stated: “This Act shall not be construed as repealing any of the laws of the Commonwealth relating to abortion facilities but shall be considered supplementary to them.”

Section 10 of Acts 1998, ch. 582, stated: “If any provision of this Act or its application is held invalid, the invalidity shall not affect other provisions or applications of this Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.”

NOTES TO DECISIONS

1.Constitutionality.

This section, which grants a limited exemption from the Certificate of Need (CON) requirement of KRS 216B.061 does not violate sections 59 or 60 of the Kentucky Constitution as a “special act” since the legislation treats all members within the class of existing health facilities equally and provides them all with the same opportunity to take advantage of the CON exemption at the same cost with the same time constraints. St. Luke Hosp. v. Health Policy Bd., 913 S.W.2d 1, 1996 Ky. App. LEXIS 4 (Ky. Ct. App. 1996).

2.Nursing Pool.

Although a private duty nursing service licensed as a nursing pool is entitled to the certificate of need (CON) exemption to the extent it is acting within the confines of the definition of a nursing pool, private duty nursing service, which sent its nurses to various patients homes, was required to obtain CON to establish a health service. Medical Personnel Pool v. Management Registry, 869 S.W.2d 42, 1993 Ky. App. LEXIS 176 (Ky. Ct. App. 1993).

3.Exemption.

A physician was not exempt under KRS 216B.020(2)(a) to the licensure requirements of KRS 216B.010 et seq. because the physician failed to meet the burden under 900 KAR 6:050, § 18(8) of showing that the majority of activity at the physician’s facilities where magnetic resonance imaging services were performed was the provision of medical care to the physician’s own patients or those of the physician-employees. Gilbert v. Commonwealth, 291 S.W.3d 712, 2008 Ky. App. LEXIS 43 (Ky. Ct. App. 2008).

Trial court properly determined that a medical imaging center was within the private physician office exemption of KRS 216B.020(2)(a), as it was wholly physician-owned, most of the referrals would come from its physician-owners, and those physicians would be performing services for patients there. Fleming County Hosp. Dist. v. Fleming Reg'l Med. Imaging, PLLC, 354 S.W.3d 149, 2011 Ky. App. LEXIS 180 (Ky. Ct. App. 2011).

Because the surgical treatment performed at two ambulatory surgery centers (ASCs) was essentially an extension of the examination and treatment provided by the physician shareholders in their traditional offices, pursuant to KRS 216B.020(2)(a), the ASCs were exempt from the regulation and licensure requirements of KRS ch. 216B. Commonwealth v. Bluegrass Orthopaedics Surgical Div., LLC, 2011 Ky. App. LEXIS 206 (Ky. Ct. App. Oct. 21, 2011), review denied, ordered not published, 2012 Ky. LEXIS 386 (Ky. Oct. 17, 2012).

Opinions of Attorney General.

An ambulance district cannot utilize the county’s right to elect to not come under this chapter, since subsection (2) of this section does not apply where ambulance service is being carried on by an ambulance district created under KRS Chapter 108 since an ambulance district is a taxing district within Const., § 157 and as a particular entity of government it has a certain autonomy, being managed by a board of directors and primarily funded from the ad valorem tax levied. OAG 81-47 .

The fact that the county has elected not to come under the licensure and regulatory provisions of this chapter as to its ambulance service would not disqualify that county in applying for matching funds under KRS 211.954 and 211.956 (now repealed). OAG 81-47 .

All ambulance services must be licensed by the certificate of need licensure board unless they offer no health services. OAG 82-561 .

The effect of the 1982 amendments to KRS Chapter 216B has been to preempt the field of licensure standards and licensing procedures and regulations relating thereto, and other provisions of Chapter 216B not related to a certificate of need, which affect ambulance service. OAG 82-576 .

A local government, including urban county government, may by ordinance treat any facet of the “certificate of need” concept which may be practically applied to ambulance service, and which treatment is authorized by statute. OAG 82-576 .

A group of physicians who proposed to purchase a linear accelerator and open a radiation clinic would not be required to obtain a certificate of need under KRS 216B.061 in order to operate the clinic. OAG 83-135 .

No ambulance service needs a certificate of need since subsection (1) of this section states in part that the provisions of KRS Chapter 216B relating to the issuance of a certificate of need shall not apply to ambulance services; however, all ambulance services must be licensed. OAG 84-40 .

An ambulance service operated by a city, through its fire department, does not need to obtain a certificate of need but the ambulance service does need to obtain a license from the Kentucky Health Facilities and Health Services Certificate of Need and Licensure Board, unless it will function merely as a backup unit to the regular and licensed emergency units already in existence, and can bring itself within the exception set forth in subdivision (2)(f) of this section. Where an ambulance service is required to be licensed it must observe the statutory requirements relative thereto as well as the applicable administrative regulations, including those concerning the qualifications required of ambulance service personnel. OAG 84-40 .

The definition of healing art in KRS 311.271(2)(a) is not applicable to Chapter 216B, since the language of KRS 311.271(2)(a) specifically limits the definition to those instances where the term is used in Chapter 311, and since that statute was enacted well before Chapter 216B. OAG 90-14 .

The phrase, “private offices and clinics” in subdivision (2)(a) of this section should be liberally interpreted to include those locations where a physician or other health care provider dispenses treatment in the normal course of his business and is other than a health facility as defined in KRS 216B.015(12). The method of ownership of that office or clinic should not enter into the determination, since that is not an issue with the statutory exemption. OAG 90-14 .

The phrase, “practitioners of the healing arts,” as found in subdivision (2)(a) of this section, should be broadly interpreted by the commission for health economics control to include all persons licensed by the Commonwealth to provide health services as defined in KRS 216B.015(15). OAG 90-14 .

The clinic may waive its exemption from licensure as an ambulatory surgical center without waiving its exemption from having to obtain a Certificate of Need, since the two authorizations are separate and independent in nature. OAG 90-82 .

The clinic need not be licensed merely to obtain Medicare reimbursement for ambulatory surgery care because this chapter does not require a license for that particular purpose. OAG 90-82 .

216B.021. Authorization for two 120-bed nursing homes in western and eastern Kentucky. [Repealed]

History. Enact. Acts 1998, ch. 223, § 1, effective July 15, 1998; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216B.022. Establishment of nursing facility beds under pilot program for post-acute transitional care dependent upon long-term care bed need calculations for county in state health plan — Sunset. [Repealed]

HISTORY: 2018 ch. 113, § 1, effective July 14, 2018; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216B.025. Commission of Health Economics Control in Kentucky. [Repealed]

History. Enact. Acts 1980, ch. 135, § 4, effective July 15, 1980; 1982, ch. 347, § 4, effective July 15, 1982; 1984, ch. 377, § 8, effective July 13, 1984; 1988, ch. 210, § 6, effective July 15, 1988; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 135, § 4, effective July 15, 1980) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

216B.030. Principal office of commission. [Repealed]

History. Enact. Acts 1980, ch. 135, § 5, effective July 15, 1980; 1988, ch. 210, § 7, effective July 15, 1988; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 135, § 5, effective July 15, 1980) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

216B.035. Administrative staff assistance — Records — Oaths.

  1. The cabinet shall hire any administrative staff required by the cabinet to carry out its duties and functions under the provisions of this chapter.
  2. The secretary shall keep a full and true record of all the proceedings of the cabinet, of all books and papers ordered filed by the cabinet, and of all exemptions and certificates of need issued by the cabinet in paper or electronic form, and shall be responsible to it for the safe custody and preservation of all documents in its possession. The secretary may administer oaths in all parts of the state, where the exercise of that power is properly incidental to the performance of the duties of the cabinet under this chapter.

HISTORY: Enact. Acts 1980, ch. 135, § 6, effective July 15, 1980; 1982, ch. 347, § 5, effective July 15, 1982; 1988, ch. 210, § 8, effective July 15, 1988; 1994, ch. 512, Part 7, § 25, effective July 15, 1994; 1996, ch. 371, § 39, effective July 15, 1996; 2018 ch. 143, § 11, effective July 14, 2018.

216B.040. Functions of cabinet in administering chapter — Regulatory authority.

  1. The cabinet shall have four (4) separate and distinct functions in administering this chapter:
    1. To approve or deny certificates of need in accordance with the provisions of this chapter, except as to those applications which have been granted nonsubstantive review status by the cabinet;
    2. To issue and to revoke certificates of need;
    3. To provide a due process hearing and issue a final determination on all actions by the cabinet to deny, revoke, modify, or suspend licenses of health facilities and health services issued by the cabinet; and
    4. To enforce, through legal actions on its own motion, the provisions of this chapter and its orders and decisions issued pursuant to its functions.
  2. The cabinet shall:
    1. Promulgate administrative regulations pursuant to the provisions of KRS Chapter 13A:
      1. To establish the certificate of need review procedures, including but not limited to, application procedures, notice provisions, procedures for review of completeness of applications, and timetables for review cycles.
      2. To establish criteria for issuance and denial of certificates of need which shall be limited to the following considerations:
        1. Consistency with plans. Each proposal approved by the cabinet shall be consistent with the state health plan, and shall be subject to biennial budget authorizations and limitations, and with consideration given to the proposal’s impact on health care costs in the Commonwealth. The state health plan shall contain a need assessment for long-term care beds, which shall be based on a statistically valid analysis of the present and future needs of the state as a whole and counties individually. The need assessment shall be applied uniformly to all areas of the state. The methodology shall be reviewed and updated on an annual basis. The long-term care bed need criteria in the state health plan or as set forth by the appropriate certificate of need authority shall give preference to conversion of personal care beds and acute care beds to nursing facility beds, so long as the state health plan or the appropriate certificate of need authority establishes a need in the affected counties and the proposed conversions are more cost-effective than new construction. The fact that the state health plan shall not address the specific type of proposal being reviewed shall not constitute grounds for disapproval of the proposal. Notwithstanding any other provision of law, the long-term care bed need criteria in the state health plan or as set forth by the appropriate certificate of need authority shall not consider, factor in, or include any continuing care retirement community’s nursing home beds established under KRS 216B.015 , 216B.020 , 216B.330 , and 216B.332 ;
        2. Need and accessibility. The proposal shall meet an identified need in a defined geographic area and be accessible to all residents of the area. A defined geographic area shall be defined as the area the proposal seeks to serve, including its demographics, and shall not be limited to geographical boundaries;
        3. Interrelationships and linkages. The proposal shall serve to accomplish appropriate and effective linkages with other services, facilities, and elements of the health care system in the region and state, accompanied by assurance of effort to achieve comprehensive care, proper utilization of services, and efficient functioning of the health care system;
        4. Costs, economic feasibility, and resources availability. The proposal, when measured against the cost of alternatives for meeting needs, shall be judged to be an effective and economical use of resources, not only of capital investment, but also ongoing requirements for health manpower and operational financing;
        5. Quality of services. The applicant shall be prepared to and capable of undertaking and carrying out the responsibilities involved in the proposal in a manner consistent with appropriate standards and requirements assuring the provision of quality health care services, as established by the cabinet;
        6. Hospital-based skilled nursing, intermediate care, and personal care beds shall be considered by the cabinet in determining the need for freestanding long-term care beds.
    2. Conduct public hearings, as requested, in respect to certificate-of-need applications, revocations of certificates of need, and denials, suspensions, modifications, or revocations of licenses.
  3. The cabinet may:
    1. Issue other administrative regulations necessary for the proper administration of this chapter;
    2. Administer oaths, issue subpoenas, subpoenas duces tecum, and all necessary process in proceedings brought before or initiated by the cabinet, and the process shall extend to all parts of the Commonwealth. Service of process in all proceedings brought before or initiated by the cabinet may be made by certified mail, or in the same manner as other process in civil cases, as the cabinet directs;
    3. Establish by promulgation of administrative regulation under KRS Chapter 13A reasonable application fees for certificates of need;
    4. Establish a mechanism for issuing advisory opinions to prospective applicants for certificates of need regarding the requirements of a certificate of need; and
    5. Establish a mechanism for biennial review of projects for compliance with the terms of the certificate of need.

HISTORY: Enact. Acts 1980, ch. 135, § 7, effective July 15, 1980; 1982, ch. 347, § 6, effective July 15, 1982; 1988, ch. 210, § 9, effective July 15, 1988; 1990, ch. 493, § 1, effective July 13, 1990; 1990, ch. 499, § 3, effective July 13, 1990; 1994, ch. 512, Part 7, § 26, effective July 15, 1994; 1996, ch. 299, § 2, effective July 15, 1996; 1996, ch. 371, § 40, effective July 15, 1996; 2000, ch. 264, § 3, effective July 14, 2000; 2018 ch. 143, § 12, effective July 14, 2018.

NOTES TO DECISIONS

1.Discretion of Board.

The criteria provided in subsection (2) of this section for the issuance of a certificate place broad discretion in the board; the board is restricted only from arbitrary and capricious acts within the traditional framework. Thus, where it is shown by substantial evidence that the submitted plan will provide these facilities and existing facilities are or soon will become inadequate, the plan may be approved, notwithstanding some variance with the criteria established under the provisions of subsection (2) of this section; the prevalent use of the word “should” in this section and correlative regulations denotes discretion. Starks v. Kentucky Health Facilities, 684 S.W.2d 5, 1984 Ky. App. LEXIS 531 (Ky. Ct. App. 1984).

2.Standing to Demand Hearing.

Where the Certificate of Need Authority issued an advisory opinion that the hospital’s existing Certificates of Need (CONs) were adequate to cover the new pediatrics program, the competitor hospital had standing to seek a declaration of rights, including the right to demand a formal statutory hearing covering whether the hospital’s present CONs were sufficient to cover the pediatric procedures in question and, if not, whether an additional CON should be granted. Humana of Kentucky, Inc. v. NKC Hospitals, Inc., 751 S.W.2d 369, 1988 Ky. LEXIS 24 ( Ky. 1988 ).

3.Application for Ambulance Service.

Northern Kentucky Area Development District (ADD) was not a legislative body for the purpose of the state health plan administration or for any other purpose; therefore, ADD was not appropriate legislative body to support hospital’s application to establish an ambulance service. Northern Ky. Emergency Medical Servs. v. Christ Hosp. Corp., 875 S.W.2d 896, 1993 Ky. App. LEXIS 142 (Ky. Ct. App. 1993).

4.Necessity for Hearing.

KRS 216B.085 and 902 KAR 20:004E § 5 are in harmony with the provision of subsection (2)(b) of this section regarding hearings on applications for certificate of need as requested since there is nothing in the statutory scheme, regulations or case law that suggest that a hearing on an application for a certificate of need is required in every instance, and there is no authority which precludes cancellation of a hearing once it has been scheduled. Jewish Hosp. v. Baptist Health Care Sys., 902 S.W.2d 844, 1995 Ky. App. LEXIS 136 (Ky. Ct. App. 1995).

5.Certificate of Need.

Because a home health service provider’s certificate of need application only sought to separate its existing license and there would be no actual change in health services or the location where health services were provided, the application was consistent with the State Health Plan as required by KRS 216B.040(2)(a)(2)(a). Nurses' Registry & Home Health Corp., (Nurses' Registry) v. Gentiva Certified Healthcare Corp., 326 S.W.3d 15, 2010 Ky. App. LEXIS 244 (Ky. Ct. App. 2010).

In a case involving an application for a certificate of need, an error was committed when a remand was limited to the incorrect numbers used at a 2006 hearing; the language of former 900 Ky. Admin. Regs. 6:050, § 7(1)(b), current 900 Ky. Admin. Regs. 6:070, and a state health plan required the use of the latest numbers available at the time of the decision. Prof'l Home Health Care Agency, Inc. v. Commonwealth, 2011 Ky. App. LEXIS 99 (Ky. Ct. App. June 10, 2011), aff'd, 434 S.W.3d 433, 2013 Ky. LEXIS 465 ( Ky. 2013 ).

Administrative regulation relating to whether a certificate of need (CON) application is consistent with the State Health Plan (SHP) refers to the SHP in effect at the time of the Cabinet for Health and Family Services ultimate decision, and the use of outdated figures on remand is contrary to the overarching regulatory purpose. Therefore, an evidentiary restriction on a remand hearing in a CON case was inconsistent with Kentucky law relating to the issuances of CONs, and the use of most recent information did not deprive an applicant of due process. Comprehensive Home Health Servs. v. Prof'l Home Health Care Agency, Inc., 434 S.W.3d 433, 2013 Ky. LEXIS 465 ( Ky. 2013 ).

Cited:

Commonwealth v. Family Home Health Care, Inc., 98 S.W.3d 524, 2003 Ky. App. LEXIS 30 (Ky. Ct. App. 2003).

Research References and Practice Aids

Northern Kentucky Law Review.

Costich, The Kentucky Health Reform Act, 22 N. Ky. L. Rev. 381 (1995).

216B.0415. Jurisdiction of State Board of Medical Licensure over physician’s acting as medical director for an ambulance service.

  1. The State Board of Medical Licensure shall have sole jurisdiction regarding any complaint relating to the medical supervision of an ambulance service or ambulance service personnel against a physician performing in the role of medical director for an ambulance service for basic or advanced life support services.
  2. This section shall not preclude or limit the filing of civil litigation in a court of appropriate jurisdiction.

History. Enact. Acts 1998, ch. 497, § 3, effective July 15, 1998.

216B.0417. Jurisdiction of State Board of Nursing over registered nurse practicing with an ambulance service.

  1. The State Board of Nursing shall have sole jurisdiction regarding any complaint relating to the practice of a registered nurse practicing under the nurse’s nursing license in the prehospital setting for an ambulance service providing basic or advanced life support services.
  2. This section shall not preclude or limit the filing of civil litigation in a court of appropriate jurisdiction.

History. Enact. Acts 1998, ch. 497, § 4, effective July 15, 1998.

216B.042. Licenses — Authority to enter upon premises — Authority for administrative regulations.

  1. The cabinet shall:
    1. Establish by promulgation of administrative regulation under KRS Chapter 13A reasonable application fees for licenses and promulgate other administrative regulations necessary for the proper administration of the licensure function;
    2. Issue, deny, revoke, modify, or suspend licenses or provisional licenses in accordance with the provisions of this chapter;
    3. Establish licensure standards and procedures to ensure safe, adequate, and efficient abortion facilities, health facilities and health services. These regulations, under KRS Chapter 13A, shall include, but need not be limited to:
      1. Patient care standards and safety standards, minimum operating standards, minimum standards for training, required licenses for medical staff personnel, and minimum standards for maintaining patient records;
      2. Licensure application and renewal procedures; and
      3. Classification of health facilities and health services according to type, size, range of services, and level of care; and
    4. Compile in a single document, maintain, and make available to abortion facilities and the public during regular business hours, all licensure standards and procedures promulgated under KRS Chapter 13A related to abortion facilities.
  2. The cabinet may authorize its agents or representatives to enter upon the premises of any health care facility for the purpose of inspection, and under the conditions set forth in administrative regulations promulgated under KRS Chapter 13A by the cabinet.
  3. The cabinet may revoke licenses or certificates of need for specific health facilities or health services or recommend the initiation of disciplinary proceedings for health care providers on the basis of the knowing violation of any provisions of this chapter.

History. Enact. Acts 1982, ch. 347, § 7, effective July 15, 1982; 1988, ch. 210, § 10, effective July 15, 1988; 1990, ch. 499, § 4, effective July 13, 1990; 1994, ch. 512, Part 7, § 27, effective July 15, 1994; 1996, ch. 371, § 41, effective July 15, 1996; 1998, ch. 582, § 3, effective July 15, 1998.

Compiler’s Notes.

Section 9 of Acts 1998, ch. 582, stated: “This Act shall not be construed as repealing any of the laws of the Commonwealth relating to abortion facilities but shall be considered supplementary to them.”

Section 10 of Acts 1998, ch. 582, stated: “If any provision of this Act or its application is held invalid, the invalidity shall not affect other provisions or applications of this Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.”

216B.0422. Hospital’s outpatient health facility — Licensure and certificate-of-need requirements. [Repealed.]

216B.0425. Certification designations for stroke care for acute care hospitals.

  1. Except as otherwise provided, for purposes of this section:
    1. “Acute care hospital” means a licensed facility providing inpatient and outpatient medical or surgical services to an individual that seeks care and treatment, regardless of the individual’s ability to pay for services, on an immediate and emergent basis through an established emergency department and a continuous treatment basis on its premises for more than twenty-four (24) hours; and
    2. “Primary stroke center certification,” “acute stroke ready hospital certification,” and “comprehensive stroke center certification” mean certification for acute care hospitals issued by the Joint Commission, the American Heart Association, or another cabinet-approved nationally recognized organization that provides disease-specific certification for stroke care, that:
      1. Complies with census-based national standards and safety goals;
      2. Effectively uses evidence-based clinical practice guidelines to manage and optimize care; and
      3. Uses an organized approach to measure performance.
  2. The secretary of the Cabinet for Health and Family Services shall designate as a primary stroke center any acute care hospital which has received an acute stroke ready hospital certification, a comprehensive stroke center certification, or a primary stroke center certification.
  3. The secretary shall suspend or revoke an acute care hospital’s designation as an acute stroke ready hospital, a comprehensive stroke center, or a primary stroke center if certification is withdrawn by the Joint Commission, the American Heart Association, or another cabinet-approved certifying organization.
    1. The cabinet shall maintain a list of certified acute stroke ready hospitals, comprehensive stroke centers, and primary stroke centers and post the list on its Web site. The cabinet shall provide the list and periodic updates to the Kentucky Board of Emergency Medical Services. (4) (a) The cabinet shall maintain a list of certified acute stroke ready hospitals, comprehensive stroke centers, and primary stroke centers and post the list on its Web site. The cabinet shall provide the list and periodic updates to the Kentucky Board of Emergency Medical Services.
    2. The Kentucky Board of Emergency Medical Services shall share the list with each local emergency medical services provider at least annually, and as new centers and hospitals are designated and certified.

HISTORY: Enact. Acts 2010, ch. 67, § 1, effective July 15, 2010; 2015 ch. 9, § 1, effective June 24, 2015.

216B.0431. Licensing and procedures for abortion facilities — Administrative regulations.

  1. The cabinet shall, no later than September 1, 1998, and subject to the provisions of KRS Chapter 13A, promulgate administrative regulations providing licensure standards and procedures for abortion facilities. The cabinet shall begin enforcing the administrative regulations on March 1, 1999.
  2. Any person operating an abortion facility for which a license is required under this chapter may apply for the license prior to March 1, 1999.
  3. Each abortion facility shall report monthly to the cabinet the information required by the cabinet by administrative regulation for each abortion performed in the facility.
  4. Licensed acute-care hospitals shall be exempt from the provisions of this section, except for any reporting requirements issued by the cabinet.

History. Enact. Acts 1998, ch. 582, § 4, effective July 15, 1998.

Compiler’s Notes.

Section 9 of Acts 1998, ch. 582, stated: “This Act shall not be construed as repealing any of the laws of the Commonwealth relating to abortion facilities but shall be considered supplementary to them.”

Section 10 of Acts 1998, ch. 582, stated: “If any provision of this Act or its application is held invalid, the invalidity shall not affect other provisions or applications of this Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.”

216B.0435. Requirement of written agreements between abortion facility and acute-care hospital and ambulance service.

  1. Each abortion facility shall enter into a written agreement with a licensed acute-care hospital capable of treating patients with unforeseen complications related to an abortion facility procedure by which agreement the hospital agrees to accept and treat these patients.
  2. If unforeseen complications arise prior to or during an abortion facility procedure, the patient shall be transferred to the licensed acute-care hospital with which the abortion facility has a written agreement as provided under subsection (1) of this section or to the hospital selected by the patient, if the patient so chooses.
  3. Each abortion facility shall enter into a written agreement with a licensed local ambulance service for the transport of any emergency patient within the scope of subsection (1) of this section to the licensed acute-care hospital.
  4. The written agreements of an abortion facility with an acute-care hospital and with a local ambulance service shall be filed by the abortion facility with the cabinet.

History. Enact. Acts 1998, ch. 582, § 5, effective July 15, 1998.

Compiler’s Notes.

Section 9 of Acts 1998, ch. 582, stated: “This Act shall not be construed as repealing any of the laws of the Commonwealth relating to abortion facilities but shall be considered supplementary to them.”

Section 10 of Acts 1998, ch. 582, stated: “If any provision of this Act or its application is held invalid, the invalidity shall not affect other provisions or applications of this Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.”

216B.0441. Cabinet to license and regulate adult day care health programs.

  1. As used in this section, “adult day health care program” means a program licensed by the Cabinet for Health and Family Services that provides organized health care for its clients during specified daytime hours, that may include continuous supervision to assure that health care needs are being met, supervision of self-administration of medications, and provision of nursing services, personal care services, self-care training, and social and recreational activities for individuals of all ages.
  2. The cabinet shall promulgate administrative regulations in accordance with KRS Chapter 13A to establish health, safety, and treatment requirements for licensed adult day health care programs. No person, association, corporation, or other organization shall operate or maintain an adult day health care program without first obtaining a license as provided in this section.
  3. The cabinet may issue a license upon request to any adult day health care program meeting the standards required under subsection (2) of this section and administrative regulations promulgated thereunder. The cabinet may deny, revoke, suspend, or modify an adult day health care program license for failure to comply with standards set by the cabinet.
  4. Services provided in an adult day health care program for its clients may include:
    1. Medical therapeutic services; and
    2. Physical and speech therapy.

History. Enact. Acts 2000, ch. 521, § 27, effective July 14, 2000; 2005, ch. 99, § 505, effective June 20, 2005.

216B.0443. Administrative regulations on adult day health care.

  1. The cabinet shall, on or before August 1, 2000, promulgate administrative regulations addressing the scope of services for licensed adult day health care programs.
  2. The cabinet shall, on or prior to December 1, 2000, study and promulgate administrative regulations regarding the way case management for adult day health care patients is administered.

History. Enact. Acts 2000, ch. 170, § 1, effective July 14, 2000.

216B.0445. Outpatient health facility operated by hospital — Licensure — Certificate of need.

  1. Notwithstanding any other provision of law to the contrary, if the Federal Health Care Financing Administration issues a final regulation establishing an outpatient Medicare prospective payment system for hospitals that requires that an outpatient health facility operated by the hospital be under the same license as the hospital to achieve provider-based status, the cabinet shall, at the hospital’s request, issue a new license to a hospital that owns and operates an existing or newly established outpatient health facility that lists each location operated by the hospital.
  2. Any outpatient health facility listed on the hospital’s license under subsection (1) of this section shall:
    1. Comply with the applicable licensure regulations that pertain to the type of health services provided; and
    2. Prior to the establishment of a health facility, the operation of a health facility, or the provision of health services or the addition of a health service at a location other than the hospital’s main campus, obtain a certificate of need if a certificate of need would otherwise be required in the absence of subsection (1) of this section. Licensure of the outpatient health facility or service under the same license as the hospital pursuant to subsection (1) of this section shall not eliminate the requirement for a certificate of need.

History. Enact. Acts 2000, ch. 310, § 4, effective April 4, 2000.

216B.045. Actions of cabinet to be in writing and of record.

Every order, decision, finding, license, or certificate issued or approved by the cabinet under any of the provisions of this chapter shall be in writing and shall be entered on the records of the cabinet.

History. Enact. Acts 1980, ch. 135, § 8, effective July 15, 1980; 1982, ch. 347, § 8, effective July 15, 1982; 1988, ch. 210, § 11, effective July 15, 1988; 1994, ch. 512, Part 7, § 28, effective July 15, 1994; 1996, ch. 371, § 42, effective July 15, 1996.

216B.050. Enforcement powers of cabinet.

The cabinet may compel obedience to its lawful orders by mandamus, injunction, or other proper proceedings in the Franklin Circuit Court or any other Circuit Court of competent jurisdiction. Every order entered by the cabinet shall continue in force until the expiration of the time, if any, named by the cabinet in the order, or until revoked or modified.

History. Enact. Acts 1980, ch. 135, § 9, effective July 15, 1980; 1982, ch. 347, § 9, effective July 15, 1982; 1988, ch. 210, § 12, effective July 15, 1988; 1994, ch. 512, Part 7, § 29, effective July 15, 1994; 1996, ch. 371, § 43, effective July 15, 1996.

216B.055. Notice of decisions and orders of cabinet.

Notice of decisions and orders made by the cabinet under the provisions of this chapter shall be made by certified mail addressed to the last known address on file with the cabinet, by personal service, or other method of delivery which may include electronic service. The notice shall be mailed, or personal service or other method of delivery shall be obtained, no later than fifteen (15) working days after the decision or order. Notice shall be complete and effective upon mailing or delivery.

HISTORY: Enact. Acts 1980, ch. 135, § 10, effective July 15, 1980; 1982, ch. 347, § 10, effective July 15, 1982; 1988, ch. 210, § 13, effective July 15, 1988; 1994, ch. 512, Part 7, § 30, effective July 15, 1994; 1996, ch. 371, § 44, effective July 15, 1996; 2018 ch. 143, § 13, effective July 14, 2018.

216B.060. Certificate of need required, when. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 135, § 11, effective July 15, 1980) was repealed by Acts 1982, ch. 347, § 27, effective July 15, 1982.

216B.061. Actions requiring certificates of need — Prohibitions against dividing projects to evade expenditure minimums and against ex parte contacts — Ambulatory surgical centers.

  1. Unless otherwise provided in this chapter, no person shall do any of the following without first obtaining a certificate of need:
    1. Establish a health facility;
    2. Obligate a capital expenditure which exceeds the capital expenditure minimum;
    3. Make a substantial change in the bed capacity of a health facility;
    4. Make a substantial change in a health service;
    5. Make a substantial change in a project;
    6. Acquire major medical equipment;
    7. Alter a geographical area or alter a specific location which has been designated on a certificate of need or license;
    8. Transfer an approved certificate of need for the establishment of a new health facility or the replacement of a licensed facility.
  2. No person shall separate portions of a single project into components in order to evade any expenditure minimum set forth in this chapter. For purposes of this chapter, the acquisition of one (1) or more items of functionallyrelated diagnostic or therapeutic equipment shall be considered as one (1) project.
  3. No person shall have ex parte contact with the final-decision-making authority engaged in certificate of need activities regarding a certificate-of-need application from the commencement of the review cycle to the final decision. If an ex parte contact occurs, it shall be promptly made a part of the record.
  4. No person shall obligate a capital expenditure in excess of the amount authorized by an existing certificate of need unless the person has received an administrative escalation from the cabinet as prescribed by regulation.
  5. No person shall proceed to obligate a capital expenditure under an approved certificate of need if there has been a substantial change in the project.
  6. A certificate of need shall be issued for a specific location and, when applicable, for a designated geographical area.
  7. No person shall establish an ambulatory surgical center as defined in KRS 216B.015 without obtaining a certificate of need. An ambulatory surgical center shall require a certificate of need and license, notwithstanding any exemption contained in KRS 216B.020 .
  8. Nothing in this chapter shall be interpreted to require any ambulatory surgical center licensed as of July 12, 2012, to obtain a certificate of need to continue operations and exercise all of the rights of a licensed health care facility, regardless of whether it obtained a certificate of need before being licensed.

History. Enact. Acts 1982, ch. 347, § 11, effective July 15, 1982; 1988, ch. 210, § 14, effective July 15, 1988; 1990, ch. 499, § 5, effective July 13, 1990; 1994, ch. 512, Part 7, § 31, effective July 15, 1994; 1996, ch. 371, § 45, effective July 15, 1996; 2012, ch. 103, § 3, effective July 12, 2012.

NOTES TO DECISIONS

1.Constitutionality.

KRS 216B.020 , which grants a limited exemption from the Certificate of Need (CON) requirement of this section does not violate sections 59 or 60 of the Kentucky Constitution as a “special act” since the legislation treats all members within the class of existing health facilities equally and provides them all with the same opportunity to take advantage of the CON exemption at the same cost with the same time constraints. St. Luke Hosp. v. Health Policy Bd., 913 S.W.2d 1, 1996 Ky. App. LEXIS 4 (Ky. Ct. App. 1996).

2.Lease of Medical Equipment.

Medical company was not required to obtain a certificate of need in order to provide a single photon emission computed tomography (SPECT) unit to hospitals for use by them in providing medical diagnoses to their patients where there was insufficient evidence to support a finding that company had established a health facility as company merely proposed to lease the SPECT unit to hospitals and provide the technician to operate it. Commission for Health Economics Control v. Medical Consultants Imaging Co., 844 S.W.2d 437, 1992 Ky. App. LEXIS 246 (Ky. Ct. App. 1992).

3.Nursing Pool.

Although a private duty nursing service licensed as a nursing pool is entitled to the certificate of need (CON) exemption to the extent it is acting within the confines of the definition of a nursing pool, private duty nursing service, which sent its nurses to various patients homes, was required to obtain CON to establish a health service. Medical Personnel Pool v. Management Registry, 869 S.W.2d 42, 1993 Ky. App. LEXIS 176 (Ky. Ct. App. 1993).

4.Substantial Change in Health Service.

Hospital was merely increasing the quantity of cardiac catheterization labs and was not addding to, or even changing, the scope of services it already provided; accordingly, lower court did not err in concluding that hospital did not “make a substantial change in a health service” within the meaning of subsection (1) of this section and KRS 216B.015(20) requiring a Certificate of Need. Cabinet for Human Resourcs, Interim Office of Health Planning & Certification v. Jewish Hosp. Healthcare Servs., 932 S.W.2d 388, 1996 Ky. App. LEXIS 171 (Ky. Ct. App. 1996).

Circuit court erred in its determination that the on-going drawing of blood was a substantial change in a health service; the health services provider was acting within the legitimate parameters of its license in drawing blood from patients in conjunction with its provision of mobile infusion therapy services because there was no change in the scope or character of the health service being provided, much less a “substantial change” within the meaning of KRS 216B.061(1), 216B.015(28). Commonwealth v. Family Home Health Care, Inc., 98 S.W.3d 524, 2003 Ky. App. LEXIS 30 (Ky. Ct. App. 2003).

Cited in:

Gilbert v. Commonwealth Cabinet, 291 S.W.3d 712, 2008 Ky. App. LEXIS 43 (Ky. Ct. App. 2008).

Opinions of Attorney General.

A group of physicians who proposed to purchase a linear accelerator and open a radiation clinic would not be required to obtain a certificate of need under this section in order to operate the clinic. OAG 83-135 .

216B.0615. Prohibition against transferring a certificate of need — Penalty.

No holder of a certificate of need for a new health facility shall sell, trade, or transfer a certificate of need to any other person. Any person who violates this section shall be guilty of a Class B misdemeanor.

History. Enact. Acts 1994, ch. 249, § 2, effective July 15, 1994.

216B.062. Timetable for submission of application for certificate of need to be established by administrative regulation — Review procedure.

  1. Applications for certificates of need shall be submitted according to timetables established by the cabinet by promulgation of administrative regulation, pursuant to the provisions of KRS Chapter 13A. The application for a certificate of need shall include the name and business address of any owner, investor, or stockholder in the project whose ownership interest is greater than ten percent (10%). Once an application has been deemed complete pursuant to the cabinet’s administrative regulations, notice shall be given as provided by the regulations of the beginning of the review, the proposed review schedule, and the right to request a hearing. The review shall be deemed to commence on the date of notice. No review shall take longer than ninety (90) days from the commencement of the review unless the applicant agrees to a deferral of action.
  2. Applications proposing the same or similar types of services, facilities, or equipment shall be batched for review purposes, excluding those granted nonsubstantive review status. The cabinet shall by promulgation of administrative regulation under KRS Chapter 13A establish appropriate batching groups to assure that applications for each type of service, facility, or equipment will be eligible for consideration at set intervals. In each review batch, the cabinet shall review and, if appropriate, compare all timely-filed applications proposing similar types of services, facilities, or equipment in the same health service areas.

History. Enact. Acts 1982, ch. 347, § 12, effective July 15, 1982; 1988, ch. 210, § 15, effective July 15, 1988; 1994, ch. 249, § 1, effective July 15, 1994; 1994, ch. 512, Part 7, § 32, effective July 15, 1994; 1996, ch. 371, § 46, effective July 15, 1996.

216B.065. Notification of intent to acquire facility or equipment — Conditions requiring a certificate of need for acquisition.

  1. Before any person enters into a contractual agreement to acquire a licensed health facility, the person shall notify the cabinet of the intent to acquire the facility or major medical equipment and of the services to be offered in the facility and its bed capacity or the use of the medical equipment. The notice shall be in writing and shall be filed at least thirty (30) days prior to entry into a contract to acquire the health facility or major medical equipment with respect to which the notice is given.
  2. A certificate of need shall be required for the acquisition of a health facility or major medical equipment, only if:
    1. The notice required in this section is not filed and the arrangement will require the obligation of a capital expenditure which exceeds the capital expenditure minimum; or
    2. The cabinet finds within thirty (30) days after the date it received notice that the health services or bed capacity of the health facility will be substantially changed in being acquired.
  3. Donations, transfers, and leases of major medical equipment and health facilities shall be considered acquisitions of equipment and facilities, and an acquisition of medical equipment or a facility for less than fair market value shall be considered an acquisition if the fair market value exceeds the expenditure minimum.
  4. Before any health facility reduces or terminates a health service or reduces its bed capacity, the facility shall notify the cabinet of its intent. The notice shall be in writing and shall be filed at least thirty (30) days prior to the reduction or termination. A certificate of need shall be required for the reduction or termination only if the notice required in this section is not filed.

History. Enact. Acts 1980, ch. 135, § 12, effective July 15, 1980; 1982, ch. 347, § 13, effective July 15, 1982; 1988, ch. 210, § 16, effective July 15, 1988; 1990, ch. 499, § 6, effective July 13, 1990; 1994, ch. 512, Part 7, § 33, effective July 15, 1994; 1996, ch. 371, § 47, effective July 15, 1996.

216B.066. Cabinet to be notified prior to acquiring certain major medical equipment, a health service is offered, or a capital expenditure is made or obligated — Certificate of need may be required.

  1. Before a health facility acquires major medical equipment to be used solely for research, offers a health service solely for research, or makes or obligates a capital expenditure solely for research, which exceeds the prescribed minimum, the health facility shall notify the cabinet of its intent to do so. The notice shall be in writing and shall be made sixty (60) days prior to the acquisition, offering, or making or obligation of the expenditure with respect to which notice is given. The notice shall state the use to be made of the major medical equipment, health service, or capital expenditure.
  2. A certificate of need shall be required for the acquisition of major medical equipment solely for research, the offering of a health service solely for research, or the making or obligating of a capital expenditure solely for research by a health facility, only if:
    1. The notice required by this section is not filed; or
    2. The cabinet finds within sixty (60) days after it receives notice that the project or transaction for which notice is given will affect the charges of the facility for the provision of medical or other patient care services other than services which are included in the research, will substantially change the bed capacity of the facility, or will substantially change the medical or other patient care services of the facility which were offered before the acquisition, offering, making or obligation.
  3. If major medical equipment is acquired, a health service is offered, or a capital expenditure is made or obligated and, pursuant to this section, no certificate of need is required, the equipment, service, or facilities acquired through the capital expenditure shall not be used in a manner which would affect the charges of the facility for the provision of medical or other patient care services other than that included in the research, substantially change the bed capacity of the facility, or substantially change the medical or other patient care services of the facility unless a certificate of need is issued.
  4. For purposes of this section, “solely for research” means patient care provided on an occasional and irregular basis and not as part of a research project.

History. Enact. Acts 1982, ch. 347, § 14, effective July 15, 1982; 1988, ch. 210, § 17, effective July 15, 1988; 1994, ch. 512, Part 7, § 34, effective July 15, 1994; 1996, ch. 371, § 48, effective July 15, 1996.

216B.070. Application for exemption to be filed with commissioner. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 135, § 13, effective July 15, 1980; 1982, ch. 347, § 15, effective July 15, 1982; 1988, ch. 210, § 18, effective July 15, 1988) was repealed by Acts 1990, ch. 499, § 18, effective July 13, 1990.

216B.071. Long-term care facilities for patients with Alzheimer’s disease exempt from certificate of need. [Repealed]

HISTORY: Enact. Acts 1990, ch. 499, § 17, effective July 13, 1990; repealed by 2018 ch. 143, § 18, effective July 14, 2018.

216B.072. Training for staff of long-term care facilities treating persons with Alzheimer’s disease or related disorders.

A long-term care facility as defined in KRS 216.535 , except for a personal care home, that advertises to provide special care for persons with a medical diagnosis of Alzheimer’s disease or other related disorders or maintains an identifiable unit for the treatment of persons with a medical diagnosis of Alzheimer’s disease or other related disorders shall provide training to all staff members in the care and handling of Alzheimer’s disease or other related disorders as follows:

  1. At least eight (8) hours of orientation related to Alzheimer’s disease or other related disorders to include the following:
    1. Facility policies;
    2. Etiology and treatment;
    3. Disease stages;
    4. Behavior management; and
    5. Residents’ rights; and
  2. Annual continuing education of at least five (5) hours related to Alzheimer’s disease or other related disorders.

History. Enact. Acts 2002, ch. 296, § 3, effective July 15, 2002.

216B.075. Administrative regulations governing application and review procedures to be promulgated.

The cabinet shall promulgate administrative regulations respecting application and review procedures to comply with any federal laws and regulations promulgated thereunder.

History. Enact. Acts 1980, ch 135, § 14, effective July 15, 1980; 1988, ch. 210, § 19, effective July 15, 1988; 1994, ch. 512, Part 7, § 35, effective July 15, 1994; 1996, ch. 371, § 49, effective July 15, 1996.

NOTES TO DECISIONS

1.Hearing.

Regulation (902 KAR 20:004E) that required that the agreement of all affected persons be obtained prior to the cancellation of a hearing on application for certificate of need was not in conflict with KRS 216B.085 nor did it abridge due process rights of an affected person who had requested a hearing; if a party fails to request a hearing, then it has not exercised its right and cannot later complain it has been denied due process. Jewish Hosp. v. Baptist Health Care Sys., 902 S.W.2d 844, 1995 Ky. App. LEXIS 136 (Ky. Ct. App. 1995).

A regulation is valid unless it exceeds statutory authority or is repugnant to the statutory scheme, and the intent of 902 KAR 20:004E § 5 providing procedure for hearings on applications for certificate of need is valid and provides a complimentary section which is consistent with the plain meaning of the hearing procedures outlined in KRS 216B.085 ; it is therefore presumed to be valid. Jewish Hosp. v. Baptist Health Care Sys., 902 S.W.2d 844, 1995 Ky. App. LEXIS 136 (Ky. Ct. App. 1995).

216B.080. Criteria for issuance or denial of certificates and for allowance or disallowance of exemptions to be adopted. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 135, § 15, effective July 15, 1980) was repealed by Acts 1982, ch. 347, § 27, effective July 15, 1982.

216B.085. Hearing procedures — Notification of cabinet’s decisions — Appeals.

  1. Any time no later than fifteen (15) days after the date the review commences, any affected person may request a public hearing. Hearings shall be before a person designated by the secretary to serve as hearing officer. The hearing officer shall be authorized to administer oaths, issue subpoenas, subpoenas duces tecum, and all necessary process in the proceedings.
  2. If a hearing is requested, the secretary shall set a date, time, and place for a public hearing. Reasonable notice of the hearing shall be given to all affected persons in accordance with administrative regulations promulgated by the cabinet.
  3. At the hearing, any party to the proceedings shall have the right to be represented by counsel, and to present oral or written arguments and evidence relevant to the matter which is the subject of the hearing, and may conduct reasonable cross-examination under oath of persons who make factual allegations relevant to such matters. A full and complete record shall be maintained of the hearing.
  4. Any decision of the cabinet to issue or deny a certificate of need shall be based solely on the record established with regard to the matter. All decisions granting, denying, or modifying a certificate of need shall be made by the cabinet in writing. The cabinet shall notify the parties to the proceedings of the decision and the decision shall be final for purposes of judicial appeal unless a request for reconsideration is filed. An approved certificate of need shall be issued forty (40) days after notice of the cabinet’s decision unless a request for reconsideration is filed or a judicial appeal is taken and issuance is enjoined by the court.

History. Enact. Acts 1980, ch. 135, § 16, effective July 15, 1980; 1982, ch. 347 § 16 effective July 15, 1982; 1988, ch. 210, § 20, effective July 15, 1988; 1990, ch. 499, § 7, effective July 13, 1990; 1994, ch. 512, Part 7, § 36, effective July 15, 1994; 1996, ch. 371, § 50, effective July 15, 1996.

NOTES TO DECISIONS

1.Administrative Remedies.

Where hospital that sought to challenge granting of ancillary services application of another hospital failed to exhaust its administrative remedies as provided by this section it had no standing to seek relief in the courts. Baptist Hospital, Inc. v. Humana of Kentucky, Inc., 672 S.W.2d 669, 1984 Ky. App. LEXIS 532 (Ky. Ct. App. 1984) (decision prior to 1982 amendment).

2.Declaratory Judgment.

Whether decision of Health Facilities and Health Services Certificate of Need and Licensure Board granting hospital’s ancillary services license application was consistent with the state health plan is an issue of fact which is the proper subject of an appeal rather than that of a declaratory judgment action. Baptist Hospital, Inc. v. Humana of Kentucky, Inc., 672 S.W.2d 669, 1984 Ky. App. LEXIS 532 (Ky. Ct. App. 1984) (decision prior to 1982 amendment).

3.Due Process Protection.

Where hospital filed application for certificate of need for additional facilities and made timely request for hearing but later withdrew its request for such hearing, since subsection (1) of this section contains permissive language that grants an affected person the right to request a hearing and if such a hearing is requested, under subsection (2) reasonable notice must be provided to all affected persons, the section clearly provides due process protection; however, nothing in this section requires a hearing in absence of a request. Jewish Hosp. v. Baptist Health Care Sys., 902 S.W.2d 844, 1995 Ky. App. LEXIS 136 (Ky. Ct. App. 1995).

4.Hearing.

This section and 902 KAR 20:004E § 5 are in harmony with the provision of subsection (2)(b) of KRS 216B.040 regarding hearings on applications for certificate of need as requested since there is nothing in the statutory scheme, regulations or case law that suggest that a hearing on an application for a certificate of need is required in every instance, and there is no authority which precludes cancellation of a hearing once it has been scheduled. Jewish Hosp. v. Baptist Health Care Sys., 902 S.W.2d 844, 1995 Ky. App. LEXIS 136 (Ky. Ct. App. 1995).

5.— Necessity.

Under this section a hearing is not required to be held on all certificate of need (CON) applications, but only when a hearing is requested by an affected person as such scheme adequately protects the affected person’s rights; thus where hospital filed CON application for additional facilities and made timely request for hearing but later withdrew its request and no other affected persons requested a hearing, a hearing was not required. Jewish Hosp. v. Baptist Health Care Sys., 902 S.W.2d 844, 1995 Ky. App. LEXIS 136 (Ky. Ct. App. 1995).

6.— Regulations.

A regulation is valid unless it exceeds statutory authority or is repugnant to the statutory scheme, and the intent of 902 KAR 20:004E § 5 providing procedure for hearings on applications for certificate of need is valid and provides a complimentary section which is consistent with the plain meaning of the hearing procedures outlined in this section; it is therefore presumed to be valid. Jewish Hosp. v. Baptist Health Care Sys., 902 S.W.2d 844, 1995 Ky. App. LEXIS 136 (Ky. Ct. App. 1995).

Regulation (902 KAR 20:004E) that required that the agreement of all affected persons be obtained prior to the cancellation of a hearing on application for certificate of need was not in conflict with this section nor did it abridge due process rights of an affected person who had requested a hearing; if a party fails to request a hearing, then it has not exercised its right and cannot later complain it has been denied due process. Jewish Hosp. v. Baptist Health Care Sys., 902 S.W.2d 844, 1995 Ky. App. LEXIS 136 (Ky. Ct. App. 1995).

7.Administrative Record.

Pursuant to KRS 216B.085(4) and 216B.015(17)(d), the Kentucky Health Policy Board committed reversible error by failing to include the staff reports in the administrative record and by failing to grant a licensed home health agency access to such records in denying its application for a certificate of need to expand its existing home health services to a county. Martin County Home Health Care v. Cabinet for Health & Family Servs., 214 S.W.3d 324, 2007 Ky. App. LEXIS 13 (Ky. Ct. App. 2007).

8.Remand.

Administrative regulation relating to whether a certificate of need (CON) application is consistent with the State Health Plan (SHP) refers to the SHP in effect at the time of the Cabinet for Health and Family Services ultimate decision, and the use of outdated figures on remand is contrary to the overarching regulatory purpose. Therefore, an evidentiary restriction on a remand hearing in a CON case was inconsistent with Kentucky law relating to the issuances of CONs, and the use of most recent information did not deprive an applicant of due process. Comprehensive Home Health Servs. v. Prof'l Home Health Care Agency, Inc., 434 S.W.3d 433, 2013 Ky. LEXIS 465 ( Ky. 2013 ).

Cited:

Pie Mut. Ins. Co. v. Kentucky Medical Ins. Co., 782 S.W.2d 51, 1990 Ky. App. LEXIS 2 (Ky. Ct. App. 1990).

216B.086. Revocation of certificate of need — Hearings — Prohibition against ex parte contacts.

  1. The cabinet may revoke a certificate of need, or portion thereof, for failure of the holder of the certificate to implement the project in accordance with timetables and standards for implementation established by administrative regulation of the cabinet; however, for projects involving long-term care beds, the cabinet may revoke any certificate granted which is not implemented within twenty-four (24) months or within any six (6) month reporting interval during which there is not satisfactory progress in meeting the project timetable and shall revoke any certificate granted which is not implemented within thirty-six (36) months except for those projects specified as an exception pursuant to Executive Order 96-129 in which case those projects shall be implemented according to the intervals and timetable set forth in this section, as of the effective date of Medicaid funding in the biennial budget for those projects. The administrative regulation for projects involving long-term care beds shall be based on project completion in twenty-four (24) months and shall specify criteria for measuring implementation of project objectives at six (6) month reporting intervals. If, at any six (6) month reporting period, the certificate holder is able to show good cause as to why a project failed to meet its timetables, an extension of six (6) months may be granted to meet that particular timetable. The burden of proof shall be on the certificate holder. An extension may be granted beyond a total of thirty-six (36) months, only if the applicant requests that the cabinet grant an additional six (6) month extension beyond the initial thirty-six (36) month completion period and shows good cause. For purposes of this section, there shall be deemed to be “good cause” if the project can be completed within the additional six (6) month period. In no case shall an extension be granted beyond a total of forty-two (42) months. The holder of the certificate of need shall file with the cabinet the name and business address of all owners, investors, and stockholders in the project whose ownership interest is greater than ten percent (10%). All reports submitted by the certificate holder under this subsection shall be considered a public record in accordance with the Kentucky Open Records Law, KRS 61.870 to 61.884 .
  2. The cabinet shall give notice to the holder of the certificate of its initial decision to revoke the certificate of need or portion thereof. The cabinet’s initial decision to revoke a certificate of need or portion thereof shall become final after thirty (30) days unless a hearing is requested. The secretary shall give notice to the holder of the certificate of a decision which has become final under the provisions of this subsection.
  3. The holder of the certificate of need to be revoked may request in writing a public hearing in respect to an initial decision by the cabinet to revoke a certificate of need within thirty (30) days of the date of notice of the initial decision. Failure to request a hearing shall constitute a waiver of any right to reconsideration or judicial appeal of a final cabinet decision to revoke a certificate of need.
  4. The hearing shall be before a person designated by the secretary to be the hearing officer. The hearing shall be no later than thirty (30) days after the request for the hearing is filed.
  5. If a hearing is requested, the secretary shall set a date, time, and place for a public hearing. Reasonable notice of the hearing shall be given to all affected persons in accordance with administrative regulations promulgated by the cabinet.
  6. At the hearing, any party to the proceedings shall have the right to be represented by counsel and to present oral or written arguments and evidence relevant to the revocation of the certificate of need and may conduct reasonable cross-examination under oath of persons who testify. A full and complete record shall be maintained of the hearing, and all testimony shall be recorded but not be transcribed unless the cabinet’s final decision is appealed pursuant to this chapter.
  7. After the issuance of an initial decision to revoke a certificate of need and before a final decision is made, no person shall have ex parte contacts with employees of the cabinet regarding the revocation. If an ex parte contact occurs, it shall be promptly made a part of the record.
  8. If a hearing is requested after notice of the cabinet’s initial decision to revoke a certificate of need, the cabinet shall make a final decision within thirty (30) days after the hearing. Any final decision revoking a certificate of need shall be made by the cabinet in writing. The cabinet shall notify the parties to the proceedings of the final decision.
  9. Any final decision of the cabinet to revoke a certificate of need shall be based solely on the record established with regard to the revocation.
  10. Except as provided in subsection (3) of this section, reconsideration pursuant to KRS 216B.090 or judicial appeal pursuant to KRS 216B.115 shall be available with regard to a final decision of the cabinet to revoke a certificate of need.

History. Enact. Acts 1982, ch. 347, § 17, effective July 15, 1982; 1988, ch. 210, § 21, effective July 15, 1988; 1990, ch. 499, § 8, effective July 13, 1990; 1994, ch. 249, § 3, effective July 15, 1994; 1994, ch. 512, Part 7, § 37, effective July 15, 1994; 1996, ch. 371, § 51, effective July 15, 1996; 1998, ch. 593, § 1, effective July 15, 1998.

216B.090. Reconsideration of cabinet’s decisions.

  1. Any party to the proceedings may, for good cause shown, request in writing a hearing for purposes of reconsideration of a decision of the cabinet pertaining to a certificate of need or the revocation of a certificate of need under procedures promulgated by administrative regulation. The request shall be filed within fifteen (15) days of the notice of the decision. For purposes of this section there shall be deemed to be “good cause shown” if the request for a public hearing:
    1. Presents significant, relevant information not previously available for consideration by the cabinet;
    2. Demonstrates that there have been significant changes in the factors or circumstances relied upon by the cabinet in reaching its decision;
    3. Demonstrates that the cabinet has materially failed to follow its adopted procedures in reaching its decision; or
    4. States that a public hearing pursuant to KRS 216B.085 was not conducted prior to a decision to deny a certificate of need.
  2. If a public hearing is granted, it shall be held within thirty (30) days after the decision to grant the request for reconsideration. The hearing shall be conducted in accordance with the provisions of this chapter. The cabinet shall make its decision on reconsideration and shall give notice thereof. The decision of the cabinet shall be final for purposes of judicial appeal. An approved certificate of need shall be issued forty (40) days after notice of the cabinet’s decision unless a judicial appeal is taken and issuance is enjoined by the court.

History. Enact. Acts 1980, ch. 135, § 17, effective July 15, 1980; 1982, ch. 347, § 18, effective July 15, 1982; 1988, ch. 210, § 22, effective July 15, 1988; 1990, ch. 499, § 9, effective July 13, 1990; 1994, ch. 512, Part 7, § 38, effective July 15, 1994; 1996, ch. 371, § 52, effective July 15, 1996.

NOTES TO DECISIONS

Cited:

Comprehensive Home Health Servs. v. Prof’l Home Health Care Agency, Inc., — S.W.3d —, 2013 Ky. LEXIS 465 ( Ky. 2013 ).

216B.095. Nonsubstantive review of application.

  1. An applicant may waive the procedures for formal review of an application for a certificate of need and request a nonsubstantive review as provided below. The cabinet may grant or deny nonsubstantive review status within ten (10) days of the date the application is deemed completed and shall give notice to all affected persons of the decision to conduct a nonsubstantive review. Any affected person other than the applicant may request a hearing by filing a request with the cabinet within ten (10) days of the notice to conduct a nonsubstantive review. As applicable, hearings shall be conducted as provided in KRS 216B.085 . Based solely upon the record established with regard to the matter, the cabinet shall approve or deny a certificate of need on all projects assigned nonsubstantive review status within thirty-five (35) days of the determination of nonsubstantive review status. If the application is denied nonsubstantive review status, it shall automatically be placed in the formal review process.
  2. If a certificate of need is denied following a nonsubstantive review, the applicant may request that the application be placed in the next cycle of the formal review process. Nothing in this subsection shall require an applicant to pursue a formal review before obtaining judicial review pursuant to KRS 216B.115 .
  3. The cabinet may grant nonsubstantive review status to an application for a certificate of need which is required:
    1. To change the location of a proposed health facility;
    2. To replace or relocate a licensed health facility, if there is no substantial change in health services or substantial change in bed capacity;
    3. To replace or repair worn equipment if the worn equipment has been used by the applicant in a health facility for five (5) years or more;
    4. For cost escalations;
    5. To establish an industrial ambulance service; or
    6. In other circumstances the cabinet by administrative regulation may prescribe.
  4. Notwithstanding any other provision to the contrary in this chapter, the cabinet may approve a certificate of need for a project required for the purposes set out in paragraphs (a) to (f) of subsection (3) of this section, unless it finds the facility or service with respect to which the capital expenditure is proposed to be made is not required; or to the extent the facility or services contemplated by the proposed capital expenditure is addressed in the state health plan, the cabinet finds that the capital expenditure is not consistent with the state health plan.
  5. The decision of the cabinet approving or denying a certificate of need pursuant to this section shall be final for purposes of judicial appeal, unless the applicant requests the application be placed in the formal review process. An approved certificate shall be issued thirty (30) days after notice of the cabinet’s decision, unless a judicial appeal is taken and issuance is enjoined by the court.
  6. Notwithstanding any other provision of law, the cabinet shall not grant nonsubstantive review status to a certificate of need application that indicates an intent to apply for Medicaid certification of nursing home beds within a continuing care retirement community established under KRS 216B.015 , 216B.020 , 216B.330 , and 216B.332 .
  7. Notwithstanding any provision of state law or the state health plan promulgated by administrative regulation in accordance with KRS 216B.040 , the cabinet shall grant nonsubstantive review for a certificate of need proposal to establish an ambulatory surgical center if the applicant complies with the following:
    1. The applicant is an ambulatory surgical center that was organized and in operation as the private office of a physician or physician group prior to October 1, 2006;
      1. The cabinet’s general counsel has submitted a letter to the Accreditation Association for Ambulatory Health Care advising that the cabinet does not object to the applicant’s parent company applying for and obtaining Medicare certification; or (b) 1. The cabinet’s general counsel has submitted a letter to the Accreditation Association for Ambulatory Health Care advising that the cabinet does not object to the applicant’s parent company applying for and obtaining Medicare certification; or
      2. The applicant is an ambulatory surgical center that has received from the cabinet a favorable advisory opinion dated June 14, 2005, confirming that the applicant would be exempt from the certificate of need or licensure requirement;
    2. The applicant’s ambulatory surgical center has been inspected and accredited by the Accreditation Association for Ambulatory Health Care since December 31, 2006, and has maintained accreditation with that organization consistently since that time; and
    3. The applicant was a party to litigation concerning the ambulatory surgical center and physician office issue and, prior to July 12, 2012, obtained a Court of Appeals ruling in its favor.

History. Enact. Acts 1980, ch. 135, § 18, effective July 15, 1980; 1982, ch. 347, § 19; effective July 15, 1982; 1988, ch. 210, § 23, effective July 15, 1988; 1990, ch. 499, § 10, effective July 13, 1990; 1994, ch. 512, Part 7, § 39, effective July 15, 1994; 1996, ch. 371, § 53, effective July 15, 1996; 2000, ch. 264, § 4, effective July 14, 2000; 2012, ch. 103, § 4, effective July 12, 2012.

NOTES TO DECISIONS

1.State Health Plan.

As 900 Ky. Admin. Regs. 6:075, § 2(6)-(8) directly conflict with KRS 216B.095(4), the nonsubstantive review procedure set forth in 900 Ky. Admin. Regs. 6:075 is invalid. Therefore, a certificate of need was properly denied to an applicant where it was shown that it was inconsistent with a state health plan. Baptist Convalescent Ctr., Inc. v. Boonespring Transitional Care Ctr., LLC, 405 S.W.3d 498, 2012 Ky. App. LEXIS 199 (Ky. Ct. App. 2012).

Opinions of Attorney General.

Applying the principles of ejusdem generis, proposal by the Cabinet for Health Services (now Health and Family Services) to add categories of health services and facilities to the Certificate of Need (CON) nonsubstantive review process, is in direct conflict with the provisions of this section since such enactment would effectively eliminate the need for a formal CON review process as virtually all health facilities and services could be placed under nonsubstantive review status and such a result is incompatible with the legislative scheme, and is an unlawful attempt to add to the statutory powers granted to the Cabinet through the enactment of an administrative regulation. OAG 96-37 .

Research References and Practice Aids

Northern Kentucky Law Review.

Costich, The Kentucky Health Reform Act, 22 N. Ky. L. Rev. 381 (1995).

216B.100. Separation of components of a project prohibited. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 135, § 19, effective July 15, 1980) was repealed by Acts 1982, ch. 347, § 27, effective July 15, 1982.

216B.105. License procedure — Hearings — Decisions of cabinet to be in writing and of record.

  1. Unless otherwise provided in this chapter, no person shall operate any health facility in this Commonwealth without first obtaining a license issued by the cabinet, which license shall specify the kind or kinds of health services the facility is authorized to provide. A license shall not be transferable and shall be issued for a specific location and, if specified, a designated geographical area.
  2. The cabinet may deny, revoke, modify, or suspend a license in any case in which it finds that there has been a substantial failure to comply with the provisions of this chapter or the administrative regulations promulgated hereunder. The denial, revocation, modification, or suspension shall be effected by mailing to the applicant or licensee, by certified mail or other method of delivery which may include electronic service, a notice setting forth the particular reasons for the action. The denial, revocation, modification, or suspension shall become final and conclusive thirty (30) days after notice is given, unless the applicant or licensee, within the thirty (30) day period, shall file a request in writing for a hearing with the cabinet.
  3. The hearing shall be before a person designated to serve as hearing officer by the secretary.
  4. Within thirty (30) days from the conclusion of the hearing, the findings and recommendations of the hearing officer shall be transmitted to the cabinet, with a synopsis of the evidence contained in the record and a statement of the basis of the hearing officer’s findings. The applicant or licensee shall be entitled to be represented at the hearing in person or by counsel, or both, and shall be entitled to introduce testimony by witnesses or, if the cabinet so permits, by depositions. A full and complete record shall be kept of all hearings, and all testimony shall be reported but need not be transcribed unless the decision is appealed pursuant to this chapter. The cabinet may adopt the hearing officer’s findings and recommendations or prepare written findings of fact and state the basis for its decision which shall become part of the record of the proceedings.
  5. All decisions revoking, suspending, modifying or denying licenses shall be made by the cabinet in writing. The cabinet shall notify the applicant or licensee of the decision.
  6. The decision of the cabinet shall be final for purposes of judicial appeal upon notice of the cabinet’s decision.

HISTORY: Enact. Acts 1980, ch. 135, § 20, effective July 15, 1980; 1982, ch. 347, § 20, effective July 15, 1982; 1988, ch. 210, § 24, effective July 15, 1988; 1994, ch. 512, Part 7, § 40, effective July 15, 1994; 1996, ch. 371, § 54, effective July 15, 1996; 2018 ch. 143, § 14, effective July 14, 2018.

NOTES TO DECISIONS

1.Hearing.

Where nursing homes requested hearing, at which counsel was present, where testimony was introduced upon its behalf, and witnesses were cross-examined and home also availed itself of independent review prior to appealing in the lower court, home was not denied due process. Our Lady of the Woods, Inc. v. Commonwealth, Kentucky Health Facilities & Health Services Certificate of Need & Licensure Bd., 655 S.W.2d 14, 1982 Ky. App. LEXIS 294 (Ky. Ct. App. 1982).

Opinions of Attorney General.

An ambulance service operated by a city, through its fire department, does not need to obtain a certificate of need but the ambulance service does need to obtain a license from the Kentucky Health Facilities and Health Services Certificate of Need and Licensure Board, unless it will function merely as a back up unit to the regular and licensed emergency units already in existence, and can bring itself within the exception set forth in KRS 216B.020(2)(f) (now subdivision (3)(f)). Where an ambulance service is required to be licensed it must observe the statutory requirements relative thereto as well as the applicable administrative regulations, including those concerning the qualifications required of ambulance service personnel. OAG 84-40 .

No ambulance service needs a certificate of need since KRS 216B.020(1) states in part that the provisions of KRS Chapter 216B relating to the issuance of a certificate of need shall not apply to ambulance services; however, all ambulance services must be licensed. OAG 84-40 .

The clinic need not be licensed merely to obtain Medicare reimbursement for ambulatory surgery care because this chapter does not require a license for that particular purpose. OAG 90-82 .

216B.107. Dual license for acute care hospital. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 466, § 2, effective July 15, 1986) was repealed by Acts 1996, ch. 299, § 4, effective July 15, 1996. For present law see KRS 216B.020 (4) to (6).

216B.110. Administrative review. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 135, § 21, effective July 15, 1980) was repealed by Acts 1982, ch. 347, § 27, effective July 15, 1982.

216B.115. Appeal to Franklin Circuit Court.

  1. An appeal to the Franklin Circuit Court may be taken from any final decision of the cabinet with respect to a certificate-of-need application, a certificate of need, or a license, by any party to the proceedings.
  2. An appeal may be taken by filing a petition for review in the Franklin Circuit Court within thirty (30) days after notice of the final decision unless a request for reconsideration has been filed, in which case the petition shall be filed within fifteen (15) days of the cabinet’s decision not to reconsider or notice of its decision on reconsideration. The petition shall state completely the grounds upon which the review is sought and shall assign all errors relied upon. The petitioner shall serve a copy of the petition to each person who was a party to the proceedings. Summons shall be issued upon the petition directing the adverse party or parties to file an answer within twenty (20) days after service of summons. The cabinet shall, upon being served with the summons and within thirty (30) days thereafter, file a copy of the record, duly certified by the secretary, the cost of the record to be taxed as costs upon appeal. In lieu of filing of the record, an abstract thereof may be filed if all parties to the appeal agree.

History. Enact. Acts 1980, ch. 135, § 22, effective July 15, 1980; 1982, ch. 347, § 21, effective July 15, 1982; 1988, ch. 210, § 25, effective July 15, 1988; 1990, ch. 499, § 11, effective July 13, 1990; 1994, ch. 512, Part 7, § 41, effective July 15, 1994; 1996, ch. 371, § 55, effective July 15, 1996.

NOTES TO DECISIONS

1.Applicability.

KRS 216B.115 requires that both the petition seeking review of an administrative ruling be filed, and a summons be issued, within 30 days after notice of the final administrative decision; where an LLC filed its petition for review within 30 days, but no summons was issued until 34 days after notice of the final decision, the trial court was without jurisdiction over the case. Metro Med. Imaging, LLC v. Cabinet for Health Servs, Certificate of Need Office, 173 S.W.3d 916, 2005 Ky. App. LEXIS 200 (Ky. Ct. App. 2005).

Cited:

Starks v. Kentucky Health Facilities, 684 S.W.2d 5, 1984 Ky. App. LEXIS 531 (Ky. Ct. App. 1984); Humana of Kentucky, Inc. v. NKC Hospitals, Inc., 751 S.W.2d 369, 1988 Ky. LEXIS 24 ( Ky. 1988 ).

216B.120. Judicial appeals — Bonds — Costs. [Repealed]

HISTORY: Enact. Acts 1980, ch. 135, § 23, effective July 15, 1980; 1982, ch. 347, § 22, effective July 15, 1982; 1988, ch. 210, § 26, effective July 15, 1988; 1990, ch. 499, § 12, effective July 13, 1990; 1994, ch. 512, Part 7, § 42, effective July 15, 1994; 1996, ch. 371, § 56, effective July 15, 1996; repealed by 2018 ch. 143, § 18, effective July 14, 2018.

216B.125. Civil action for judicial enforcement of chapter.

If the cabinet fails to issue or deny a certificate of need or an exemption pursuant to this chapter within the time prescribed under this chapter or administrative regulations promulgated by the cabinet, the applicant may seek judicial enforcement of this chapter by filing a civil action in Franklin Circuit Court.

History. Enact. Acts 1980, ch. 135, § 24, effective July 15, 1980; 1982, ch. 347, § 23, effective July 15, 1982; 1988, ch. 210, § 27, effective July 15, 1988; 1994, ch. 512, Part 7, § 43, effective July 15, 1994; 1996, ch. 371, § 57, effective July 15, 1996.

216B.130. Expenditure minimums or limits to be adjusted annually.

Any other provisions of this chapter notwithstanding, any expenditure minimum or limit as provided in this chapter shall be adjusted for each twelve (12) month period beginning twelve (12) months after July 15, 1994, to reflect the changes in the preceding twelve (12) month period in a cost index designated by regulation for the purposes of making the adjustment. The cabinet shall effect the adjustment by administrative regulations.

History. Enact. Acts 1980, ch. 135, § 27, effective July 15, 1980; 1982, ch. 347, § 24, effective July 15, 1982; 1988, ch. 210, § 28, effective July 15, 1988; 1994, ch. 512, Part 7, § 44, effective July 15, 1994; 1996, ch. 371, § 58, effective July 15, 1996.

216B.131. Use of moneys.

  1. All moneys derived from applicants seeking certificates of need or licenses or from any other sources connected with this chapter shall be promptly paid over to the State Treasurer, who shall deposit such moneys in a special fund which, in addition to appropriated funds, shall be used to carry out the purposes of this chapter and for no other purpose.
  2. Any fine imposed for the violation of this chapter shall, when collected, be paid into the Kentucky nursing incentive scholarship fund.

History. Enact. Acts 1982, ch. 347, § 25, effective July 15, 1982; 1990, ch. 249, § 5, effective July 13, 1990.

216B.135. Creation of Task Force on Health Care Cost and Quality. [Repealed]

History. Enact. Acts 1990, ch. 499, § 16, effective July 13, 1990; 1998, ch. 426, § 450, effective July 15, 1998; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 499, § 16, effective July 13, 1990) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

216B.140. Licensed hospitals to provide services for child sexual abuse victims.

Each hospital licensed by the board shall provide medical and diagnostic services for child sexual abuse victims.

History. Enact. Acts 1992, ch. 351, § 11, effective July 14, 1992.

216B.145. Development, recommendation, and implementation of parameters for clinical practice for use by health care providers. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1994, ch. 512, Part 4, § 17, effective July 15, 1994) was repealed by Acts 1996, ch. 371, § 64, effective July 15, 1996.

216B.150. Badge or insignia for hospital employees.

  1. All employees of a hospital who are licensed, registered, certified, or otherwise regulated under the laws of the Commonwealth shall wear a badge or other insignia indicating the person is a licensed, registered, certified or otherwise regulated health care provider, provided the badge or insignia does not violate sterile procedures.
  2. No hospital licensed under the provisions of this chapter shall prohibit a person licensed, registered, certified, or otherwise regulated under the laws of the Commonwealth from wearing a badge or other insignia, provided the badge or insignia does not violate sterile procedures. No other information shall appear on the badge unless approved by the hospital chief executive officer, facility manager, or designee.
  3. No hospital licensed under the provisions of this chapter shall demote, dismiss, suspend, or otherwise penalize any employee for reporting a violation of subsection (1) of this section to the cabinet.

History. Enact. Acts 1998, ch. 503, § 1, effective July 15, 1998.

216B.155. Development of quality assurance standards for health care facilities.

  1. All health care facilities and services licensed under this chapter, with the exception of personal care homes, family care homes, and boarding homes, shall develop comprehensive quality assurance or improvement standards adequate to identify, evaluate, and remedy problems related to the quality of health care facilities and services. These standards shall be made available upon request to the public during regular business hours and shall include:
    1. An ongoing written internal quality assurance or improvement program;
    2. Specific, written guidelines for quality care studies and monitoring;
    3. Performance and clinical outcomes-based criteria;
    4. Procedures for remedial action to correct quality problems, including written procedures for taking appropriate corrective action;
    5. A plan for data gathering and assessment;
    6. A peer review process; and
    7. A summary of process outcomes and follow-up actions related to the overall quality improvement program for the health care facility or service.

      Current federal or state regulations which address quality assurance and quality improvement requirements for nursing facilities, intermediate care facilities, and skilled care facilities shall suffice for compliance with the standards in this section.

  2. All health care facilities licensed, with the exception of personal care homes, family care homes, and boarding homes, under this chapter, shall use the application form and guidelines established pursuant to KRS 304.17A-545 (5) for assessing the credentials of those applying for privileges.

History. Enact. Acts 1998, ch. 384, § 1, effective July 15, 1998; 2005, ch. 144, § 6, effective June 20, 2005.

NOTES TO DECISIONS

1.Required Records.

Nothing in Ky. Rev. Stat. Ann. § 216B.155 or the regulations promulgated thereunder requires the creation or separate record-keeping of patient-specific or event-specific reports of adverse medical events. Univ. of Ky. v. Bunnell, 532 S.W.3d 658, 2017 Ky. App. LEXIS 697 (Ky. Ct. App. 2017).

216B.160. Requirement for a care delivery model based on patient needs for licensed health care facilities and services.

All health care facilities and services licensed under this chapter shall include in their policies and procedures a care delivery model based on patient needs which includes, but is not limited to:

  1. Defined roles and responsibilities of licensed and unlicensed health care personnel;
  2. A policy that establishes the credentialing, oversight, appointment, and reappointment of the registered nurse first assistant and for granting, renewing, and revising of the registered nurse first assistant’s clinical privileges;
  3. A policy that establishes the credentialing, oversight, appointment, and reappointment of the physician assistant and for granting, renewing, and revising of the physician assistant’s clinical privileges;
  4. A policy that establishes the credentialing, oversight, appointment, and reappointment of the certified surgical assistant and for granting, renewing, and revising of the certified surgical assistant’s clinical privileges;
  5. A staffing plan that specifies staffing levels of licensed and unlicensed personnel required to safely and consistently meet the performance and clinical outcomes-based standards as outlined in the facility’s or service’s quality improvement plan;
  6. A staffing model that is developed and implemented in an interdisciplinary and collaborative manner;
  7. A policy and method that incorporates at least four (4) components in an ongoing assessment done by the registered nurse of the severity of the patient’s disease, patient condition, level of impairment or disability, and the specific unit patient census to meet the needs of the individual patient in a timely manner; and
  8. A staffing model that supports the delivery of patient care services with an appropriate mix of licensed health care personnel that will allow them to practice according to their legal scope of practice, and for nurses, the professional standards of practice referenced in KRS Chapter 314, and facility and service policies.

If a nursing facility, intermediate care facility, or skilled care facility meets the most current state or federal regulations which address safe and consistent staffing levels of licensed and unlicensed personnel, those shall suffice for compliance with the standards in this section. This section shall not be interpreted as requiring any health care facility to develop a policy or a procedure for a service not offered by the facility.

History. Enact. Acts 1998, ch. 384, § 2, effective July 15, 1998; 2000, ch. 96, § 2, effective July 14, 2000; 2000, ch. 538, § 2, effective July 14, 2000; 2001, ch. 36, § 2, effective June 21, 2001.

216B.165. Duty to report quality of care and safety problems — Investigation and report — Prohibition against retaliation.

  1. Any agent or employee of a health care facility or service licensed under this chapter who knows or has reasonable cause to believe that the quality of care of a patient, patient safety, or the health care facility’s or service’s safety is in jeopardy shall make an oral or written report of the problem to the health care facility or service, and may make it to any appropriate private, public, state, or federal agency.
  2. Any individual in an administrative or supervisory capacity at the health care facility or service who receives a report under subsection (1) of this section shall investigate the problem, take appropriate action, and provide a response to the individual reporting the problem within seven (7) working days.
  3. No health care facility or service licensed under this chapter shall by policy, contract, procedure, or other formal or informal means subject to reprisal, or directly or indirectly use, or threaten to use, any authority or influence, in any manner whatsoever, which tends to discourage, restrain, suppress, dissuade, deter, prevent, interfere with, coerce, or discriminate against any agent or employee who in good faith reports, discloses, divulges, or otherwise brings to the attention of the health care facility or service the circumstances or facts to form the basis of a report under subsections (1) or (2) of this section. No health care facility or service shall require any agent or employee to give notice prior to making a report, disclosure, or divulgence under subsections (1) or (2) of this section.
  4. All reports, investigations, and action taken subject to this chapter shall be conducted in a manner that protects and maintains the confidentiality of patients and personnel and preserves the integrity of data, information, and medical records.
  5. All health care facilities and services licensed under this chapter shall, as a condition of licensure, abide by the terms of KRS 216B.155 and this section.
  6. No agent or employee of a health care facility or service shall file a report under subsection (1) or (2) of this section in bad faith and shall have a reasonable basis for filing a report.

History. Enact. Acts 1998, ch. 384, § 3, effective July 15, 1998.

NOTES TO DECISIONS

Analysis

1.Applicability.

Trial court properly dismissed one nurse’s claim for unlawful retaliation in violation of KRS 216B.165(3) because she was not the actual whistleblower. Foster v. Jennie Stuart Med. Ctr., Inc., 435 S.W.3d 629, 2013 Ky. App. LEXIS 138 (Ky. Ct. App. 2013).

2.Public Policy.

If the nurse was discharged because it was believed she made the anonymous report, it would violate the stated public policy to ensure safe health-care facilities, thereby meeting the elements of common-law wrongful termination; the trial court erred in dismissing this claim. Foster v. Jennie Stuart Med. Ctr., Inc., 435 S.W.3d 629, 2013 Ky. App. LEXIS 138 (Ky. Ct. App. 2013).

Former employee's public policy wrongful discharge claim was not preempted because the chapter did not create a statutory cause of action nor did it provide a remedy. MacGlashan v. ABS Lincs KY, Inc., 84 F. Supp. 3d 595, 2015 U.S. Dist. LEXIS 10282 (W.D. Ky. 2015 ).

3.Retaliation Claim.

Former employee's retaliation claim survived summary judgment because the statute protected an employee who in good faith reported, the employee made an oral report the day after the incident, the employer had notice of the employee's report, and the immediate adverse actions alone demonstrated causal connection because the employee was suspended on the same day she made her report and she was terminated a week later. MacGlashan v. ABS Lincs KY, Inc., 84 F. Supp. 3d 595, 2015 U.S. Dist. LEXIS 10282 (W.D. Ky. 2015 ).

4.Wrongful Termination Claim.

KRS 216B.165(3) governed the common-law wrongful termination claim and only applied to health-care facilities; the claims against the individuals were properly dismissed. Foster v. Jennie Stuart Med. Ctr., Inc., 435 S.W.3d 629, 2013 Ky. App. LEXIS 138 (Ky. Ct. App. 2013).

5.Front pay.

Employee, who was terminated for preparing to report a clear medication error to an appropriate hospital regulatory authority, was entitled to front pay because it was just as much of a “damage sustained” as back pay where the front pay represented a reasonable estimate of damages that would accrue after the trial, the employee suffered a statutory reprisal, and could recover front pay as an element of compensable damages. Macglashan v. ABS LINCS KY, Inc., 448 S.W.3d 792, 2014 Ky. LEXIS 612 ( Ky. 2014 ).

Notes to Unpublished Decisions

3.Retaliation Claim.

Unpublished decision: For several reasons, the probative value here, if any, of the temporal proximity was minimal. The 18 days between the employee's complaint and her termination were not enough to allow a reasonable jury to find that one caused the other. Blair v. Maxim Healthcare Servs., 710 Fed. Appx. 670, 2017 FED App. 0562N, 2017 U.S. App. LEXIS 19622 (6th Cir. Ky. 2017 ).

216B.170. Identification requirement for persons dealing with patients.

  1. All health care facilities and services licensed under this chapter shall require all persons, including students, who examine, observe, or treat a patient or resident of the health care facility or service to wear identification which readily identifies, at a minimum, the person’s first name, licensure credential, and position title or department.
  2. The identification shall be of a size and type and appropriately displayed so that it may be easily detected and read.

History. Enact. Acts 1998, ch. 384, § 4, effective July 15, 1998.

216B.175. Services by a physician assistant or advanced practice registered nurse for patient admitted to acute care or psychiatric hospital — Transferability of history and physical examination to another licensed level of care within same hospital — Administrative regulations.

  1. A physician assistant, credentialed under KRS Chapter 311, when those duties and responsibilities are within the scope of training received in an approved program and within the scope of the supervising physician’s practice, or an advanced practice registered nurse licensed under KRS Chapter 314, may:
    1. Perform a history and physical examination for a patient admitted to an acute care or psychiatric hospital licensed under this chapter; and
    2. Order and review continuation of restraints and seclusion as a health care practitioner in accordance with 42 C.F.R. 482.13.
  2. A history and physical examination shall be performed no more than thirty (30) days before or twenty-four (24) hours after a patient is admitted to an acute care or psychiatric hospital licensed under this chapter.
  3. The history and physical examination that has been performed in compliance with subsection (2) of this section is transferable to another licensed level of care within the same hospital.
  4. The Cabinet for Health and Family Services shall promulgate administrative regulations in accordance with KRS Chapter 13A to establish the content of the history and physical examination required by subsection (2) of this section performed in an acute or psychiatric hospital that shall be used by the licensing entity.

History. Enact. Acts 2000, ch. 422, § 2, effective July 14, 2000; 2005, ch. 99, § 506, effective June 20, 2005; 2007, ch. 80, § 1, effective June 26, 2007; 2010, ch. 85, § 39, effective July 15, 2010.

216B.176. School-located health care or dental care programs provided by not-for-profit primary care centers at public school or Head Start program. [Repealed]

HISTORY: Enact. Acts 2003, ch. 127, § 1, effective June 24, 2003; 2010, ch. 85, § 40, effective July 15, 2010; 2014, ch. 68, § 1, effective July 15, 2014; repealed by 2018 ch. 143, § 18, effective July 14, 2018.

216B.177. Moratorium — Establishment of additional satellite school-based health care programs. [Repealed]

HISTORY: Enact. Acts 2003, ch. 127, § 2, effective June 24, 2003; repealed by 2018 ch. 143, § 18, effective July 14, 2018.

216B.180. Certificate of need not required for respite-service beds in intermediate-care facility for individuals with an intellectual disability.

Notwithstanding any other provisions contained in this chapter, a certificate of need shall not be required for an existing intermediate-care facility for individuals with an intellectual disability (ICF/ID ) to add beds which shall be dedicated to providing respite services to individuals with an ICF/ID level of care for no more than thirty (30) days. The establishment of ICF/ID respite beds shall be limited to three (3) beds per fifty (50) ICF/ID beds in a facility and shall not be eligible for Medicaid certification. Beds designated for respite services under this section shall comply with all applicable federal and state licensure requirements for intermediate-care facilities for individuals with an intellectual disability.

History. Enact. Acts 2002, ch. 286, § 1, effective July 15, 2002; 2012, ch. 146, § 107, effective July 12, 2012.

216B.182. Conversion of licensed nursing home beds to licensed intermediate care facility beds between July 1, 2004, and September 1, 2005. [Repealed]

History. Enact. Acts 2005, ch. 73, § 1, effective June 20, 2005; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

216B.185. Accreditation as evidence of compliance with licensing requirements — Exemption from inspection — Fees — Submission of building plans — Standards for licensure.

  1. The Office of the Inspector General shall accept accreditation by the Joint Commission or another nationally recognized accrediting organization with comparable standards and survey processes, that has been approved by the United States Centers on Medicare and Medicaid Services, as evidence that a hospital demonstrates compliance with all licensure requirements under this chapter. An annual on-site licensing inspection of a hospital shall not be conducted if the Office of the Inspector General receives from the hospital:
    1. A copy of the accreditation report within thirty (30) days of the initial accreditation and all subsequent reports; or
    2. Documentation from a hospital that holds full accreditation from an approved accrediting organization on or before July 15, 2002.
  2. Nothing in this section shall prevent the Office of the Inspector General from making licensing validation inspections and investigations as it deems necessary related to any complaints. The cabinet shall promulgate the necessary administrative regulations to implement the licensing validation process. Any administrative regulations shall reflect the validation procedures for accredited hospitals participating in the Medicare program.
  3. A hospital shall pay any licensing fees required by the cabinet in order to maintain a license.
  4. A new hospital shall not be exempt from the on-site inspection until meeting the requirements of subsection (1) of this section and administrative regulations promulgated under KRS 216B.040 , 216B.042 , and 216B.105 for acute, critical access, psychiatric, and rehabilitation facility requirements.
  5. Before beginning construction for the erection of a new building, the alteration of an existing building, or a change in facilities for a hospital, the hospital shall submit plans to the Office of Inspector General for approval.
  6. To the extent possible, the cabinet shall consider all national standards when promulgating administrative regulations for hospital licensure.

HISTORY: Enact. Acts 2002, ch. 159, § 1, effective July 15, 2002; 2015 ch. 9, § 4, effective June 24, 2015.

216B.190. Newborn infant — Treatment when identity of parents is unknown — Immunity from liability — Anonymity of person leaving infant — Emergency custody order — Materials for health and medical information.

  1. As used in this section:
    1. “Newborn infant” means an infant who is medically determined to be less than thirty (30) days old.; and
    2. “Participating place of worship” has the same meaning as in KRS 405.075 .
  2. Every hospital of this state that offers emergency services shall admit and provide all necessary medical care, diagnostic tests, and medical treatment to any newborn infant brought to the hospital when the identity of the parents is unknown. Any person performing medical care, diagnostic testing, or medical treatment shall be immune from criminal or civil liability for having performed the act. Nothing in this subsection shall limit liability for negligence.
  3. Any person or parent, other than an emergency medical services provider, a police officer, a firefighter, or a staff member at a participating place of worship acting in the course of his or her official duties, who leaves a newborn infant at an emergency room, or brings a newborn infant to an emergency room and expresses an intent to leave the infant and not return, shall have the right to remain anonymous and to leave at any time, and shall not be pursued or followed. The physician shall consider these actions as implied consent for treatment.
  4. Upon admittance, the physician or hospital administrator shall immediately contact the local office of the Department for Community Based Services. The Department for Community Based Services shall immediately seek an emergency custody order in accordance with KRS 620.350 .
  5. Every emergency room shall make available materials to gather health and medical information concerning the infant and the parents. The materials shall be offered to the person leaving the newborn infant and it shall be clearly stated that acceptance is completely voluntary and completion of the materials may be done anonymously.
  6. The provisions of subsection (3) of this section shall not apply when indicators of child physical abuse or child neglect are present.

History. Enact. Acts 2002, ch. 303, § 3, effective April 9, 2002; 2016 ch. 122, § 4, effective July 15, 2016.

Research References and Practice Aids

Kentucky Law Journal.

Note: Remembering the Endangered “Child”: Limiting the Definition of “Safe Haven” and Looking Beyond the Safe Haven Law Framework, 98 Ky. L.J. 833 (2009/2010).

216B.195. Residential hospice facilities — Automated pharmacy system.

  1. As used in this section:
    1. “Automated pharmacy system” means a mechanical system that delivers prescribed over-the-counter and legend drugs, and controlled substances received from a pharmacy licensed in Kentucky that maintains transaction information; and
    2. “Residential hospice facility” means a facility licensed under KRS Chapter 216B that provides residential skilled nursing care, pain management, and treatment for acute and chronic conditions for terminally ill patients.
  2. A residential hospice facility shall be deemed in compliance with licensure requirements relating to pharmaceutical services if the facility obtains pharmacy services through an automated pharmacy system in accordance with KRS 315.295 and related administrative regulations promulgated by the Kentucky Board of Pharmacy.

History. Enact. Acts 2006, ch. 153, § 3, effective July 12, 2006.

Designation of Lay Caregiver for After-care Assistance

216B.230. Definitions for KRS 216B.230 to 216B.239.

As used in KRS 216B.230 to 216B.239 :

  1. “After-care” means assistance with self-care tasks to be provided by a lay caregiver to a patient in the patient’s residence after the patient’s discharge from a hospital and may include but is not limited to:
    1. Assisting with basic or instrumental activities of daily living; and
    2. Carrying out self-care tasks such as managing wound care, assisting in the administration of medications, and utilizing home medical supplies;
  2. “Discharge” means a patient’s exit or release from a hospital to the patient’s residence following an inpatient stay;
  3. “Hospital” means a health facility as defined in KRS 216B.015 that provides inpatient care;
    1. “Lay caregiver” means a nonmedical individual, eighteen (18) years of age or older, who takes care of a patient and is designed as a lay caregiver by that patient to provide after-care assistance to the patient living in his or her residence; and (4) (a) “Lay caregiver” means a nonmedical individual, eighteen (18) years of age or older, who takes care of a patient and is designed as a lay caregiver by that patient to provide after-care assistance to the patient living in his or her residence; and
    2. A lay caregiver includes but is not limited to a relative, partner, friend, or neighbor who has a significant relationship with the patient; and
  4. “Residence” means a dwelling that the patient considers to be his or her home. A “residence” does not include any health facility licensed or certified by the Commonwealth.

HISTORY: 2017 ch. 47, § 1, effective June 29, 2017.

216B.231. Hospital must allow a patient or patient’s legal guardian to designate a lay caregiver for post-discharge assistance in the patient’s residence.

  1. A hospital shall provide each patient or, if applicable, the patient’s legal guardian with at least one (1) opportunity to designate one (1) lay caregiver following the patient’s admission into a hospital and prior to the patient’s discharge.
  2. If the patient is unconscious or otherwise incapacitated upon admission into a hospital, the hospital shall provide the patient or the patient’s legal guardian with an opportunity to designate a lay caregiver when the patient recovers his or her consciousness or capacity, so long as the designation or lack of a designation does not interfere with, delay, or otherwise affect the medical care provided to the patient.
  3. If the patient or the patient’s legal guardian declines to designate a lay caregiver, the hospital shall document this election in the patient’s medical record and the hospital shall be deemed to comply with KRS 216B.230 to 216B.239 .
  4. If the patient or the patient’s legal guardian designates an individual as a lay caregiver under this section, the hospital shall request the written consent of the patient or the patient’s legal guardian to release medical information to the patient’s designated lay caregiver following the hospital’s established procedures for releasing personal health information and in compliance with all federal and state laws.
  5. If the patient or the patient’s legal guardian declines to consent to release medical information to the patient’s designated lay caregiver, the hospital shall not be required to provide notice to the caregiver under KRS 216B.233 or provide information contained in the patient’s discharge plan under KRS 216B.235 .
  6. The hospital shall record the patient’s designation of lay caregiver, the relationship of the designated caregiver to the patient, and the name, telephone number, and address of the patient’s designated lay caregiver in the patient’s medical record.
  7. A patient may elect to change his or her designated lay caregiver at any time, and the hospital shall record this change in the patient’s medical record as soon as practicable.
  8. A designation of a lay caregiver by a patient or a patient’s legal guardian under this section shall not obligate any individual to perform any after-care tasks for any patient.
  9. This section shall not be construed to require a patient or a patient’s legal guardian to designate any individual as a lay caregiver.

HISTORY: 2017 ch. 47, § 2, effective June 29, 2017.

216B.233. Notice to designated lay caregiver of patient’s discharge.

If a patient or a patient’s legal guardian has designated a lay caregiver, the hospital shall notify the patient’s designated lay caregiver of the patient’s discharge as soon as practicable. If the hospital is unable to contact the designated lay caregiver, the lack of contact shall not interfere with, delay, or otherwise affect the medical care provided to the patient, or an appropriate discharge of the patient.

HISTORY: 2017 ch. 47, § 3, effective June 29, 2017.

216B.235. Consultation with designated lay caregiver and development of discharge plan — Administrative regulations.

  1. As soon as practicable a hospital shall consult with a designated lay caregiver regarding the patient’s after-care needs. If the hospital is unable to contact the designated lay caregiver, the lack of contact shall not interfere with, delay, or otherwise affect an appropriate discharge of the patient.
  2. A discharge plan shall include:
    1. The name and contact information of the designated lay caregiver;
    2. A description of after-care tasks the patient may perform at the patient’s residence; and
    3. Contact information for health care, community, and long-term care resources and supports that may be available and appropriate to assist in implementing the patient’s discharge plan.
  3. The purpose of the hospital’s consultation with a patient’s lay caregiver as described in this section is to assist the lay caregiver in preparing for the patient’s after-care needs, which may include demonstrations of after-care tasks and an opportunity to ask questions. The date and time of the consultation shall be documented in the patient’s medical record.
  4. The Cabinet for Health and Family Services may promulgate administrative regulations it deems necessary to implement KRS 216B.230 to 216B.239 .

HISTORY: 2017 ch. 47, § 4, effective June 29, 2017.

216B.237. Rights of agent operating under health care directive not affected by KRS 216B.230 to 216B.239.

Nothing in KRS 216B.230 to 216B.239 shall be construed to interfere with the rights of an agent operating under a valid health care directive pursuant to KRS Chapter 311.

HISTORY: 2017 ch. 47, § 5, effective June 29, 2017.

216B.239. No private right of action created or standard of care established by KRS 216B.230 to 216B.239 regarding hospital’s noncompliance.

Nothing in KRS 216B.230 to 216B.239 shall be construed to create a private right of action or be construed as establishing a standard of care, with respect to a claim that a hospital has failed to comply with KRS 216B.230 to 216B.239 either in whole or in part.

HISTORY: 2017 ch. 47, § 6, effective June 29, 2017.

Itemized Statement of Charges

216B.250. Health facility to furnish itemized statement of charges on request of paying patient.

  1. For purposes of this section, “paying patient” means persons receiving health care services who pay directly for services rendered, patients with private health insurance or health maintenance organization coverage, persons receiving Medicaid or Medicaid benefits under Title XVIII and Title XIX of the Social Security Act and persons receiving veteran’s health care benefits. “Paying patient” does not include medically indigent persons with no source of payment whatsoever.
    1. When a copy of an itemized statement is requested by any paying patient, each health facility shall furnish to the patient within thirty (30) days of the patient’s discharge or within fifteen (15) days of the patient’s request, whichever is later, one (1) copy free of charge of the itemized statement of services rendered and charges incurred by the patient. (2) (a) When a copy of an itemized statement is requested by any paying patient, each health facility shall furnish to the patient within thirty (30) days of the patient’s discharge or within fifteen (15) days of the patient’s request, whichever is later, one (1) copy free of charge of the itemized statement of services rendered and charges incurred by the patient.
    2. A summary statement of services rendered and charges incurred by the patient shall be included with the invoice sent by a health facility to the patient. Each invoice shall indicate that an itemized statement may be obtained upon request. The Cabinet for Human Resources shall impose a civil fine of five hundred dollars ($500) for each violation by a health care facility for failure to provide an itemized statement as required under this section.
    3. The itemized statement shall be stamped “Kentucky Revised Statutes prohibit the use of this statement for insurance payment purposes where benefits have been assigned.”
  2. Each health facility shall post in a publicly visible place in their admission, outpatient areas and, where applicable, emergency areas that an itemized statement is available to any paying patient upon request.
  3. The itemized statement rendered shall be the record maintained by the health facility that details the charges made for services rendered to patients and shall indicate whether an assignment of benefits has been obtained.
  4. Each health facility shall designate and make available appropriate staff to provide, upon patient request, an explanation of charges listed in the itemized statement.
  5. If a health facility knows of a discrepancy in the total charges as reported in an itemized statement and that which is reported to a third party payor, or at any time that a health facility becomes aware of such a discrepancy, the health facility shall provide the patient and third party payor with notification, an explanation and, if applicable, any reconciliation of the discrepancy in total charges.

History. Enact. Acts 1986, ch. 288, § 1, effective July 15, 1986; 1998, ch. 496, § 57, effective April 10, 1998.

Compiler’s Notes.

Titles XVIII and XIX of the Social Security Act, referred to in subsection (1) of this section, are compiled as 42 USCS § 1395 et seq. and 42 USCS § 1396 et seq., respectively.

Boarding Homes

216B.300. Definitions for KRS 216B.300 to 216B.320 and KRS 216B.990(5).

As used in KRS 216B.300 to 216B.320 and KRS 216B.990(5), unless the context requires otherwise:

  1. “Cabinet” means the Cabinet for Health and Family Services or its designee. “Designee” means any agency established under KRS Chapter 211 or KRS 147A.050 whose duties related to this chapter shall be set forth in administrative regulation;
  2. “Secretary” means the secretary of the Cabinet for Health and Family Services;
  3. “Boarder” means a person who does not require supervision or assistance related to medication, activities of daily living, or a supervised plan of care; and
  4. “Boarding home” means any home, facility, institution, lodging, or other establishment, however named, which accommodates three (3) or more adults not related by blood or marriage to the owner, operator, or manager, and which offers or holds itself out to offer room and board on a twenty-four (24) hour basis for hire or compensation. It shall not include any facility which is otherwise licensed and regulated by the cabinet or any hotel as defined in KRS 219.011(3).

History. Enact. Acts 1990, ch. 439, § 1, effective July 13, 1990; 1998, ch. 426, § 451, effective July 15, 1998; 2005, ch. 99, § 507, effective June 20, 2005; 2010, ch. 161, § 33, effective July 15, 2010.

216B.303. Rights of residents of boarding homes.

Every resident in a boarding home, as defined in KRS 216B.300 , shall have at least the following rights:

  1. Before entering a boarding home, the resident or the resident’s guardian, if any, shall be fully informed in writing, as evidenced by the resident’s written acknowledgment or that of the resident’s guardian, of all services provided by the boarding home and all applicable charges.
  2. Before entering a boarding home, the resident or the resident’s guardian shall be fully informed in writing, as evidenced by the resident’s written acknowledgment or that of the resident’s guardian, of all the resident’s rights as defined in this section, and a list of any rules established by the boarding home.
  3. All residents shall be allowed to exercise their rights as a resident and a citizen, and may voice grievances and recommend changes in policies and services to the boarding home operator and to outside representatives of their choice, free from restraint, interference, coercion, discrimination, or reprisal.
  4. All residents shall be free from mental and physical abuse.
  5. Each resident may manage the use of his personal funds. The boarding home operator shall not require a resident to designate the operator as payee for any benefits received by the resident. However, if the operator accepts the responsibility for managing the resident’s personal funds as evidenced by the operator’s written acknowledgment, proper accounting and monitoring of such funds shall be made. This shall include the operator giving quarterly itemized statements to the resident or the resident’s guardian which detail the status of the resident’s personal funds and any transactions in which such funds have been received or disbursed. The operator shall return to the resident his valuables, personal possessions, and any unused balance of moneys from his account at the time the resident leaves the boarding home.
  6. Residents shall not be required to perform services for the boarding home.
  7. Residents may associate and communicate privately with persons of their choice, within reasonable hours established by the boarding home, and send and receive personal mail unopened.
  8. No resident shall be detained against the resident’s will. Residents shall be permitted and encouraged to go outdoors and leave the premises as they wish.
  9. Residents shall be permitted to participate in activities of social, religious, and community groups at their discretion.
  10. Residents shall be assured of at least visual privacy in multibed rooms and in bathrooms.
  11. If the resident has been adjudicated wholly mentally disabled in both financial and personal affairs in accordance with KRS 387.590 , the resident’s guardian shall not place the ward in a boarding home.
  12. Each resident shall be treated with consideration, respect, and full recognition of his dignity and individuality.
  13. Residents shall have access to a telephone at a convenient location within the boarding home for making and receiving telephone calls subject to reasonable rules established by the boarding home.
  14. Residents have the right to have private meetings with inspectors representing the Cabinet for Health and Family Services.
  15. Each resident and his guardian has the right to have access to all inspection reports on the boarding home.

History. Enact. Acts 1992, ch. 63, § 2, effective July 14, 1992; 1998, ch. 426, § 452, effective July 15, 1998; 2005, ch. 99, § 508, effective June 20, 2005.

NOTES TO DECISIONS

1.Foreseeable Risk of Placement in Unregistered Boarding Home.

Non-profit corporation’s “knowledge” of the legislation and regulation of boarding homes meant that it should have realized that placing the resident at an unregistered boarding home created the risk that she would be in a physically unsafe and/or unsanitary environment, which included the specific risk that she would suffer physical and/or mental abuse. And it took only a short step to intuit that one boarder or boarders acting against another was a likely source of this risk, and thus, that she might be assaulted by another boarder was a foreseeable risk of placing her in an unregistered boarding home. Pathways, Inc. v. Hammons, 113 S.W.3d 85, 2003 Ky. LEXIS 164 ( Ky. 2003 ).

216B.305. Registration of boarding home — Standards for operation — Unannounced inspection — Denial of registration — Access by cabinet employees and agents — No preemption of local authority for stricter requirements.

  1. No person, association, business entity, or organization shall advertise, solicit boarders, or operate a boarding home without registering, on an annual basis, in a manner and form prescribed by the secretary. No person who has been convicted of a crime of abuse under KRS 508.100 to 508.120 or who has had a report of abuse substantiated by the cabinet shall be registered to operate a boarding home. The secretary shall impose a fee, not to exceed one hundred dollars ($100), for this registration.
  2. The secretary shall adopt standards, by administrative regulation pursuant to KRS Chapter 13A, for the operation of boarding homes. The administrative regulations shall include minimum requirements in the following areas:
    1. Minimum room sizes for rooms occupied for sleeping purposes. Rooms occupied by one (1) boarding home resident shall contain at least sixty (60) square feet of floor space. Rooms occupied by more than one (1) occupant shall contain at least forty (40) square feet of floor space for each occupant;
    2. Bedding, linens, and laundry services provided to residents;
    3. Sanitary and plumbing fixtures, water supply, sewage disposal, and sanitation of the premises;
    4. Heating, lighting, and fire prevention, including the installation and maintenance of smoke detectors;
    5. Maintenance of the building;
    6. Food handling, preparation, and storage, and kitchen sanitation;
    7. Nutritional standards sufficient to meet the boarder’s need;
    8. Complaint procedures whereby residents may lodge complaints with the cabinet concerning the operation of the boarding home; and
    9. Initial and periodic screening procedures to ensure that individuals meet the definition of “boarder” under KRS 216B.300(3).
  3. Prior to the initial or annual registration of a boarding home, the cabinet shall cause an unannounced inspection to be made of the boarding home, either by cabinet personnel or through the local health department acting on behalf of the cabinet, to determine if the boarding home is in compliance with:
    1. Standards established in subsections (1) and (2) of this section;
    2. Administrative regulations relating to the operation of boarding homes promulgated pursuant to subsection (2) of this section; and
    3. All applicable local health, fire, building, and safety codes and zoning ordinances.
    1. A boarding home shall not be registered to any person, association, business entity, or organization that has been previously penalized for operating a boarding home without a registration or that has had a previously denied or revoked registration to operate a boarding home, for a period of five (5) years following the date of imposition of the previous penalty or denial or revocation of registration. (4) (a) A boarding home shall not be registered to any person, association, business entity, or organization that has been previously penalized for operating a boarding home without a registration or that has had a previously denied or revoked registration to operate a boarding home, for a period of five (5) years following the date of imposition of the previous penalty or denial or revocation of registration.
    2. A boarding home operator may appeal the cabinet’s denial of initial or annual registration, and an administrative hearing shall be conducted in accordance with KRS Chapter 13B. A hearing held for a summary suspension shall be expedited and shall be in accordance with administrative regulations promulgated by the cabinet. If a boarding home continues to operate in violation of administrative regulations promulgated pursuant to subsection (2) of this section, the cabinet shall institute injunctive proceedings in Circuit Court to terminate the operation of the boarding home.
  4. Any person, association, business entity, or organization that submits an application to register a boarding home that conceals a previously denied or revoked application or conceals a penalty received for operating a boarding home without a registration shall be liable for a civil penalty of at least one thousand dollars ($1,000) but not more than five thousand dollars ($5,000). Any registration issued in reliance upon the application concealing information shall be immediately revoked.
  5. Initial and annual registration may be denied and existing registration may be revoked for any of the following:
    1. The boarding home fails to achieve or maintain substantial and continuing compliance with administrative regulations promulgated pursuant to subsection (2) of this section;
    2. The boarding home fails or refuses to correct violations within a reasonable time as specified by the cabinet; or
    3. The applicant for registration or the registrant has been convicted of a crime related to abuse, neglect, or exploitation of an adult or has had an incident of adult abuse, neglect, or exploitation as defined in KRS 209.020 , substantiated by the cabinet.
  6. Employees or designated agents of the cabinet shall have the authority to enter at any time a boarding home or any premises suspected of operating as an unregistered boarding home for the purpose of conducting an inspection or investigating a complaint.
  7. A boarding home shall not handle, store, dispense, or assist with the dispensing of a boarder’s prescription or non-prescription medications.
  8. Upon request of the boarder, the boarding home shall provide access to a lockable compartment for use by a resident who requests secure storage for prescription medication.
  9. If a boarding home fails to meet a minimum standard established in subsection (2) or (3) of this section and is in such a condition that the cabinet determines that the boarding home’s continued operation poses a significant risk to the health and safety of its residents, the cabinet may summarily suspend the registration of the boarding home by ordering that its operations cease until corrections are made or until a hearing is held on the appropriateness of the suspension.
  10. Nothing in this section or KRS 216B.303 shall be construed to prohibit local governments from imposing requirements on boarding homes that are stricter than those imposed by administrative regulations of the Cabinet for Health and Family Services.

History. Enact. Acts 1990, ch. 439, § 2, effective July 13, 1990; 1992, ch. 63, § 1, effective July 14, 1992; 1996, ch. 318, § 121, effective July 15, 1996; 1998, ch. 426, § 453, effective July 15, 1998; 2004, ch. 170, § 2, effective July 13, 2004; 2005, ch. 99, § 509, effective June 20, 2005.

216B.306. Procedures, remedies, and penalties for operation of boarding home without registration.

  1. When the cabinet has reasonable cause to believe that any person, association, business entity, or organization is operating a boarding home without a registration, the cabinet may:
    1. Issue and deliver a notice to cease and desist from the violations;
    2. Issue and deliver a notice to cease and desist to any person who aids and abets the operation of a boarding home that is not registered; and
    3. Impose a civil penalty of at least one thousand dollars ($1,000) but not more than five thousand dollars ($5,000) upon the person, association, business entity, or organization that operates a boarding home that is not registered by the cabinet.
  2. Issuance of a notice under subsection (1) of this section shall not constitute agency action for which a hearing under KRS Chapter 13B may be sought.
  3. For the purpose of enforcing a cease and desist order and penalties under subsection (1) of this section, the cabinet may file a proceeding in the name of the Commonwealth seeking issuance of an injunction and enforcement of penalties against any person who violates subsection (1) of this section.
  4. In addition to the remedies under subsection (1) of this section, the cabinet may impose a civil penalty of at least one thousand dollars ($1,000) but not more than five thousand dollars ($5,000) upon the person, association, business, entity, or organization who aids and abets the operation of a boarding home that is not registered. If the cabinet is required to seek enforcement of the cease and desist order, it shall be entitled to collect attorney’s fees, costs, and any expenses incurred by the cabinet or local government as a consequence of and incident to the relocation of boarders to appropriate housing.

History. Enact. Acts 2004, ch. 170, § 1, effective July 13, 2004.

216B.310. Listing of boarding homes to be maintained.

The secretary shall maintain a listing of all registered boarding homes which shall be updated at least quarterly. At the time the list is updated, the cabinet shall submit the list of registered boarding homes to the local health department and fire department in counties containing registered boarding homes.

History. Enact. Acts 1990, ch. 439, § 3, effective July 13, 1990; 1992, ch. 63, § 3, effective July 14, 1992.

216B.315. Student housing not included in KRS 216B.300 to 216B.320.

Nothing in KRS 216B.300 to 216B.320 shall be construed as requiring registration by persons providing room or board or both to students.

History. Enact. Acts 1990, ch. 439, § 4, effective July 13, 1990.

216B.320. KRS 216B.300 to 216B.320 not applicable to boarding home regulated by federal government.

The provisions of KRS 216B.300 to 216B.320 shall not apply to any boarding home operated or regulated by the federal government.

History. Enact. Acts 1990, ch. 439, § 5, effective July 13, 1990.

Continuing Care Retirement Communities

216B.330. Administrative regulations.

The cabinet shall promulgate administrative regulations according to KRS Chapter 13A that set forth the procedures and requirements for obtaining a certificate of compliance for a continuing care retirement community.

History. Enact. Acts 2000, ch. 264, § 5, effective July 14, 2000.

216B.332. Requirements for certificate of compliance — Assessment of residents in nursing home beds — Limitations upon admission to nursing home beds — Move-out notice and alternative living arrangements — Certificate of need not required to provide home health services to on-campus residents.

  1. To be eligible for a certificate of compliance, a continuing care retirement community shall certify in writing to the cabinet and shall disclose in writing to each of its residents that:
    1. None of the health facilities or health services operated by the continuing care retirement community shall apply for or become certified for participation in the Medicaid program; and
    2. No claim for Medicaid reimbursement shall be submitted for any person for any health service provided by the continuing care retirement community.
  2. A continuing care retirement community may establish one (1) bed at the nursing home level of care for every four (4) living units or personal care beds operated by the continuing care retirement community collectively. All residents in nursing home beds shall be assessed using the Health Care Financing Administration or Centers for Medicare and Medicaid Services approved long-term care resident assessment instrument.
  3. Admissions to continuing care retirement community nursing home beds shall be exclusively limited to on-campus residents. A resident shall not be admitted to a continuing care retirement community nursing home bed prior to ninety (90) days of residency in the continuing care retirement community unless the resident experiences a significant change in health status documented by a physician. No resident admitted to a nursing home bed shall be transferred or discharged without thirty (30) days prior written notice to the resident or his or her guardian.
  4. A continuing care retirement community shall assist each resident upon a move-out notice to find appropriate living arrangements. Each continuing care retirement community shall share information on alternative living arrangements provided by the Department for Aging and Independent Living at the time a move-out notice is given to a resident. The written agreement executed by the resident and the continuing care retirement community shall contain provisions for assisting any resident who has received a move-out notice to find appropriate living arrangements, prior to the actual move-out date.
  5. Home health services provided by a continuing care retirement community to its on-campus residents shall not require a certificate of need.

History. Enact. Acts 2000, ch. 264, § 6, effective July 14, 2000; 2005, ch. 99, § 61, effective June 20, 2005; 2007, ch. 24, § 24, effective June 26, 2007; 2012, ch. 90, § 1, effective July 12, 2012.

216B.335. Limitation upon establishment of nursing home beds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 2000, ch. 264, § 7, effective July 14, 2000; 2002, ch. 85, § 1, effective March 28, 2002; 2004, ch. 16, § 1, effective July 13, 2004; 2007, ch. 130, § 1, effective June 26, 2007) was repealed by Acts 2012, ch. 90, § 3, effective July 12, 2012.

216B.339. Monitoring of establishment of nursing home beds — Collection of data — Secretary’s report to General Assembly. [Repealed]

History. Enact. Acts 2000, ch. 264, § 8, effective July 14, 2000; 2002, ch. 85, § 2, effective March 28, 2002; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 2000, ch. 264, § 8, effective July 14, 2000; 2002, ch. 85, § 2, effective March 28, 2002) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

Emergency Care

216B.400. Emergency care — Examination services for victims of sexual offenses — Examination expenses paid by Crime Victims’ Compensation Board — Reporting to law enforcement — Examination samples as evidence. [Effective until June 29, 2021]

  1. Where a person has been determined to be in need of emergency care by any person with admitting authority, no such person shall be denied admission by reason only of his or her inability to pay for services to be rendered by the hospital.
  2. Every hospital of this state which offers emergency services shall provide that a physician, a sexual assault nurse examiner, who shall be a registered nurse licensed in the Commonwealth and credentialed by the Kentucky Board of Nursing as provided under KRS 314.142 , or another qualified medical professional, as defined by administrative regulation promulgated by the Justice and Public Safety Cabinet in consultation with the Sexual Assault Response Team Advisory Committee as defined in KRS 403.707 , is available on call twenty-four (24) hours each day for the examinations of persons seeking treatment as victims of sexual offenses as defined by KRS 510.040 , 510.050 , 510.060 , 510.070 , 510.080 , 510.090 , 510.110 , 510.120 , 510.130 , 510.140 , 530.020 , 530.064(1)(a), and 531.310 .
  3. An examination provided in accordance with this section of a victim of a sexual offense may be performed in a sexual assault examination facility as defined in KRS 216B.015 . An examination under this section shall apply only to an examination of a victim.
  4. The physician, sexual assault nurse examiner, or other qualified medical professional, acting under a statewide medical forensic protocol which shall be developed by the Justice and Public Safety Cabinet in consultation with the Sexual Assault Response Team Advisory Committee as defined in KRS 403.707 , and promulgated by the secretary of justice and public safety pursuant to KRS Chapter 13A shall, upon the request of any peace officer or prosecuting attorney, and with the consent of the victim, or upon the request of the victim, examine such person for the purposes of providing basic medical care relating to the incident and gathering samples that may be used as physical evidence. This examination shall include but not be limited to:
    1. Basic treatment and sample gathering services; and
    2. Laboratory tests, as appropriate.
  5. Each victim shall be informed of available services for treatment of sexually transmitted infections, pregnancy, and other medical and psychiatric problems. Pregnancy counseling shall not include abortion counseling or referral information.
  6. Each victim shall be informed of available crisis intervention or other mental health services provided by regional rape crisis centers providing services to victims of sexual assault.
  7. Notwithstanding any other provision of law, a minor may consent to examination under this section. This consent is not subject to disaffirmance because of minority, and consent of the parents or guardians of the minor is not required for the examination.
    1. The examinations provided in accordance with this section shall be paid for by the Crime Victims’ Compensation Board at a rate to be determined by the administrative regulation promulgated by the board after consultation with the Sexual Assault Response Team Advisory Committee as defined in KRS 403.707 . (8) (a) The examinations provided in accordance with this section shall be paid for by the Crime Victims’ Compensation Board at a rate to be determined by the administrative regulation promulgated by the board after consultation with the Sexual Assault Response Team Advisory Committee as defined in KRS 403.707 .
    2. Upon receipt of a completed claim form supplied by the board and an itemized billing for a forensic sexual assault examination or related services that are within the scope of practice of the respective provider and were performed no more than twelve (12) months prior to submission of the form, the board shall reimburse the hospital or sexual assault examination facility, pharmacist, health department, physician, sexual assault nurse examiner, or other qualified medical professional as provided in administrative regulations promulgated by the board pursuant to KRS Chapter 13A. Reimbursement shall be made to an out-of-state nurse who is credentialed in the other state to provide sexual assault examinations, an out-of-state hospital, or an out-of-state physician if the sexual assault occurred in Kentucky.
    3. Independent investigation by the Crime Victims’ Compensation Board shall not be required for payment of claims under this section; however, the board may require additional documentation or proof that the forensic medical examination was performed.
  8. No charge shall be made to the victim for sexual assault examinations by the hospital, the sexual assault examination facility, the physician, the pharmacist, the health department, the sexual assault nurse examiner, other qualified medical professional, the victim’s insurance carrier, or the Commonwealth.
    1. Each victim shall have the right to determine whether a report or other notification shall be made to law enforcement, except where reporting of abuse and neglect of a child or a vulnerable adult is required, as set forth in KRS 209.030 and 620.030 . No victim shall be denied an examination because the victim chooses not to file a police report, cooperate with law enforcement, or otherwise participate in the criminal justice system. (10) (a) Each victim shall have the right to determine whether a report or other notification shall be made to law enforcement, except where reporting of abuse and neglect of a child or a vulnerable adult is required, as set forth in KRS 209.030 and 620.030 . No victim shall be denied an examination because the victim chooses not to file a police report, cooperate with law enforcement, or otherwise participate in the criminal justice system.
    2. If the victim chooses to report to law enforcement, the hospital shall notify law enforcement within twenty-four (24) hours.
      1. All samples collected during an exam where the victim has chosen not to immediately report to law enforcement shall be stored, released, and destroyed, if appropriate, in accordance with an administrative regulation promulgated by the Justice and Public Safety Cabinet in consultation with the Sexual Assault Response Team Advisory Committee as defined in KRS 403.707 . (c) 1. All samples collected during an exam where the victim has chosen not to immediately report to law enforcement shall be stored, released, and destroyed, if appropriate, in accordance with an administrative regulation promulgated by the Justice and Public Safety Cabinet in consultation with the Sexual Assault Response Team Advisory Committee as defined in KRS 403.707 .
      2. Facilities collecting samples pursuant to this section may provide the required secure storage, sample destruction, and related activities, or may enter into agreements with other agencies qualified to do so, pursuant to administrative regulation.
      3. All samples collected pursuant to this section shall be stored for at least one (1) year from the date of collection in accordance with the administrative regulation promulgated pursuant to this subsection.
      4. Notwithstanding KRS 524.140 , samples collected during exams where the victim chose not to report immediately or file a report within one (1) year after collection may be destroyed as set forth in accordance with the administrative regulation promulgated pursuant to this subsection. The victim shall be informed of this process at the time of the examination. No hospital, sexual assault examination facility, or designated storage facility shall be liable for destruction of samples after the required storage period has expired.

History. Enact. Acts 1974, ch. 352, § 1(1); 1978, ch. 368, § 1, effective June 17, 1978; 1984, ch. 175, § 1, effective July 13, 1984; 1990, ch. 274, § 1, effective July 13, 1990; 1996, ch. 260, § 1, effective July 15, 1996; 2000, ch. 142, § 6, effective July 14, 2000; 2002, ch. 20, § 1, effective July 15, 2002; 2004, ch. 73, § 2, effective April 6, 2004; 2006, ch. 182, § 57, effective July 12, 2006; 2007, ch. 85, § 250, effective June 26, 2007; 2010, ch. 101, § 1, effective July 15, 2010; 2013, ch. 69, § 1, effective June 25, 2013; 2016 ch. 58, § 4, effective April 8, 2016; 2017 ch. 191, § 14, effective June 29, 2017.

Legislative Research Commission Notes.

(4/8/2016). 2016 Ky. Acts ch. 58, sec. 1 states: “All sexual assault examination kits collected pursuant to KRS 216B.400 prior to the effective date of this Act (April 8, 2016) which have not been subjected to serological or deoxyribonucleic acid testing shall be submitted to the Department of Kentucky State Police forensic laboratory by January 1, 2017. The Department of Kentucky State Police forensic laboratory shall collaborate with every Kentucky law enforcement and prosecutorial agency responsible for the collection, storage, and maintenance of sexual assault examination kits to develop a plan for the submission and testing of all such kits.”

(4/8/2016). 2016 Ky. Acts ch. 58, sec. 11 provided that that Act shall be known as the Sexual Assault Forensic Evidence (SAFE) Act of 2016. This statute was amended in Section 4 of that Act.

NOTES TO DECISIONS

1.SANE Nurse.

The statements the alleged victim made to the sexual assault nurse examiner (SANE nurse) following the alleged rape were not admissible. The statements were testimonial in nature and not admissible in a case where the alleged victim died after defendant was indicted but before defendant was tried, as admission of those statements violated defendant’s rights under the Sixth Amendment, U.S. Const. amend. VI Confrontation Clause, because the SANE nurse was, pursuant to KRS 314.011(14) and KRS 216B.400(4), an active participant in the criminal investigative process because the SANE partly collected evidence for the police and prosecuting attorney. Hartsfield v. Commonwealth, 277 S.W.3d 239, 2009 Ky. LEXIS 37 ( Ky. 2009 ).

Opinions of Attorney General.

Under subsection (2) of this section all Kentucky hospitals offering emergency services must include examination of victims of sexual offenses, including rape, and, upon a proper request, make such an examination for the purpose of gathering physical evidence since a hospital should not be allowed to differentiate as to emergency treatment simply because a sexual offense is involved. OAG 80-261 .

Research References and Practice Aids

Northern Kentucky Law Review.

Falstrom, Decisions Under the Emergency Medical Treatment and Active Labor Act: A Judicial Cure for Patient Dumping, 19 N. Ky. L. Rev. 365 (1992).

216B.400. Emergency care — Examination services for victims of sexual offenses — Examination expenses paid by Crime Victims’ Compensation Board — Reporting to law enforcement — Examination samples as evidence. [Effective June 29, 2021]

  1. Where a person has been determined to be in need of emergency care by any person with admitting authority, no such person shall be denied admission by reason only of his or her inability to pay for services to be rendered by the hospital.
  2. Every hospital of this state which offers emergency services shall provide that a physician, a sexual assault nurse examiner, who shall be a registered nurse licensed in the Commonwealth and credentialed by the Kentucky Board of Nursing as provided under KRS 314.142 , or another qualified medical professional, as defined by administrative regulation promulgated by the Justice and Public Safety Cabinet in consultation with the Sexual Assault Response Team Advisory Committee as defined in KRS 403.707 , is available on call twenty-four (24) hours each day for the examinations of persons seeking treatment as victims of sexual offenses as defined by KRS 510.040 , 510.050 , 510.060 , 510.070 , 510.080 , 510.090 , 510.110 , 510.120 , 510.130 , 510.140 , 530.020 , 530.064(1)(a), and 531.310 .
  3. An examination provided in accordance with this section of a victim of a sexual offense may be performed in a sexual assault examination facility as defined in KRS 216B.015 . An examination under this section shall apply only to an examination of a victim.
  4. The physician, sexual assault nurse examiner, or other qualified medical professional, acting under a statewide medical forensic protocol which shall be developed by the Justice and Public Safety Cabinet in consultation with the Sexual Assault Response Team Advisory Committee as defined in KRS 403.707 , and promulgated by the secretary of justice and public safety pursuant to KRS Chapter 13A shall, upon the request of any peace officer or prosecuting attorney, and with the consent of the victim, or upon the request of the victim, examine such person for the purposes of providing basic medical care relating to the incident and gathering samples that may be used as physical evidence. This examination shall include but not be limited to:
    1. Basic treatment and sample gathering services; and
    2. Laboratory tests, as appropriate.
  5. Each victim shall be informed of available services for treatment of sexually transmitted infections, pregnancy, and other medical and psychiatric problems. Pregnancy counseling shall not include abortion counseling or referral information.
  6. Each victim shall be informed of available crisis intervention or other mental health services provided by regional rape crisis centers providing services to victims of sexual assault.
  7. Notwithstanding any other provision of law, a minor may consent to examination under this section. This consent is not subject to disaffirmance because of minority, and consent of the parents or guardians of the minor is not required for the examination.
    1. The examinations provided in accordance with this section shall be paid for by the Crime Victims Compensation Board at a rate to be determined by the administrative regulation promulgated by the board after consultation with the Sexual Assault Response Team Advisory Committee as defined in KRS 403.707 . (8) (a) The examinations provided in accordance with this section shall be paid for by the Crime Victims Compensation Board at a rate to be determined by the administrative regulation promulgated by the board after consultation with the Sexual Assault Response Team Advisory Committee as defined in KRS 403.707 .
    2. Upon receipt of a completed claim form supplied by the board and an itemized billing for a forensic sexual assault examination or related services that are within the scope of practice of the respective provider and were performed no more than twelve (12) months prior to submission of the form, the board shall reimburse the hospital or sexual assault examination facility, pharmacist, health department, physician, sexual assault nurse examiner, or other qualified medical professional as provided in administrative regulations promulgated by the board pursuant to KRS Chapter 13A. Reimbursement shall be made to an out-of-state nurse who is credentialed in the other state to provide sexual assault examinations, an out-of-state hospital, or an out-of- state physician if the sexual assault occurred in Kentucky.
    3. Independent investigation by the Crime Victims Compensation Board shall not be required for payment of claims under this section; however, the board may require additional documentation or proof that the forensic medical examination was performed.
  8. No charge shall be made to the victim for sexual assault examinations by the hospital, the sexual assault examination facility, the physician, the pharmacist, the health department, the sexual assault nurse examiner, other qualified medical professional, the victim’s insurance carrier, or the Commonwealth.
    1. Each victim shall have the right to determine whether a report or other notification shall be made to law enforcement, except where reporting of abuse and neglect of a child or a vulnerable adult is required, as set forth in KRS 209.030 and 620.030 . No victim shall be denied an examination because the victim chooses not to file a police report, cooperate with law enforcement, or otherwise participate in the criminal justice system. (10) (a) Each victim shall have the right to determine whether a report or other notification shall be made to law enforcement, except where reporting of abuse and neglect of a child or a vulnerable adult is required, as set forth in KRS 209.030 and 620.030 . No victim shall be denied an examination because the victim chooses not to file a police report, cooperate with law enforcement, or otherwise participate in the criminal justice system.
    2. If the victim chooses to report to law enforcement, the hospital shall notify law enforcement within twenty-four (24) hours.
      1. All samples collected during an exam where the victim has chosen not to immediately report to law enforcement shall be stored, released, and destroyed, if appropriate, in accordance with an administrative regulation promulgated by the Justice and Public Safety Cabinet in consultation with the Sexual Assault Response Team Advisory Committee as defined in KRS 403.707 . (c) 1. All samples collected during an exam where the victim has chosen not to immediately report to law enforcement shall be stored, released, and destroyed, if appropriate, in accordance with an administrative regulation promulgated by the Justice and Public Safety Cabinet in consultation with the Sexual Assault Response Team Advisory Committee as defined in KRS 403.707 .
      2. Facilities collecting samples pursuant to this section may provide the required secure storage, sample destruction, and related activities, or may enter into agreements with other agencies qualified to do so, pursuant to administrative regulation.
      3. All samples collected pursuant to this section shall be stored for at least one (1) year from the date of collection in accordance with the administrative regulation promulgated pursuant to this subsection.
      4. Notwithstanding KRS 524.140 , samples collected during exams where the victim chose not to report immediately or file a report within one (1) year after collection may be destroyed as set forth in accordance with the administrative regulation promulgated pursuant to this subsection. The victim shall be informed of this process at the time of the examination. No hospital, sexual assault examination facility, or designated storage facility shall be liable for destruction of samples after the required storage period has expired.

HISTORY: Enact. Acts 1974, ch. 352, § 1(1); 1978, ch. 368, § 1, effective June 17, 1978; 1984, ch. 175, § 1, effective July 13, 1984; 1990, ch. 274, § 1, effective July 13, 1990; 1996, ch. 260, § 1, effective July 15, 1996; 2000, ch. 142, § 6, effective July 14, 2000; 2002, ch. 20, § 1, effective July 15, 2002; 2004, ch. 73, § 2, effective April 6, 2004; 2006, ch. 182, § 57, effective July 12, 2006; 2007, ch. 85, § 250, effective June 26, 2007; 2010, ch. 101, § 1, effective July 15, 2010; 2013, ch. 69, § 1, effective June 25, 2013; 2016 ch. 58, § 4, effective April 8, 2016; 2017 ch. 191, § 14, effective June 29, 2017; 2021 ch. 185, § 83, effective June 29, 2021.

216B.401. Designation of SANE-ready hospitals.

  1. The secretary of the Cabinet for Health and Family Services shall designate as a SANE-ready hospital any acute care hospital which has certified, and recertifies annually, that a sexual assault nurse examiner as defined in KRS 314.011 is available on call twenty-four (24) hours each day for the examination of persons seeking treatment as victims of sexual offenses as defined by KRS 510.040 , 510.050 , 510.060 , 510.070 , 510.080 , 510.090 , 510.110 , 510.120 , 510.130 , 510.140 , 530.020 , 530.064(1)(a), and 531.310 .
  2. The secretary shall suspend or revoke an acute care hospital’s designation as a SANE-ready hospital if the hospital fails to recertify annually, or if it notifies the secretary that it no longer meets the requirements of this section.
    1. The cabinet shall maintain a list of SANE-ready hospitals and post the list on its Web site. The cabinet shall provide the list and periodic updates to the Kentucky Board of Emergency Medical Services. (3) (a) The cabinet shall maintain a list of SANE-ready hospitals and post the list on its Web site. The cabinet shall provide the list and periodic updates to the Kentucky Board of Emergency Medical Services.
    2. The Kentucky Board of Emergency Medical Services shall share the list with each local emergency medical services provider at least annually, and as new centers and hospitals are designated and certified.

HISTORY: 2016 ch. 58, § 8, effective April 8, 2016.

Legislative Research Commission Notes.

(4/8/2016). 2016 Ky. Acts ch. 58, sec. 11 provided that that Act shall be known as the Sexual Assault Forensic Evidence (SAFE) Act of 2016. This statute was created in Section 8 of that Act.

216B.402. Protocol for treatment of drug overdose.

When a person is admitted to a hospital emergency department or hospital emergency room for treatment of a drug overdose:

  1. The person shall be informed of available substance use disorder treatment services known to the hospital that are provided by that hospital, other local hospitals, the local community mental health center, and any other local treatment programs licensed pursuant to KRS 222.231 ;
  2. The hospital may obtain permission from the person when stabilized, or the person’s legal representative, to contact any available substance use disorder treatment programs offered by that hospital, other local hospitals, the local community mental health center, or any other local treatment programs licensed pursuant to KRS 222.231 , on behalf of the person to connect him or her to treatment; and
  3. The local community mental health center may provide an on-call service in the hospital emergency department or hospital emergency room for the person who was treated for a drug overdose to provide information about services and connect the person to substance use disorder treatment, as funds are available. These services, when provided on the grounds of a hospital, shall be coordinated with appropriate hospital staff.

HISTORY: 2015 ch. 66, § 7, effective March 25, 2015.

216B.405. Course on recognition and prevention of pediatric abusive head trauma to be given by urgent treatment facility and urgent care facility.

  1. As used in this section, “urgent treatment facility” or “urgent care facility” means a facility that delivers medically necessary ambulatory medical care apart from a hospital emergency department setting usually on a walk-in basis.
  2. All urgent treatment or urgent care facilities shall make available at least one (1) time every two (2) years a continuing education course relating to the recognition and prevention of pediatric abusive head trauma, as defined in KRS 620.020 . Training in recognizing pediatric abusive head trauma may be designed in collaboration with organizations and agencies that specialize in the prevention and recognition of pediatric abusive head trauma approved by the secretary of the Cabinet for Health and Family Services.

History. Enact. Acts 2010, ch. 171, § 10, effective July 15, 2010.

216B.410. Reports and records of licensed ambulance providers and medical first response providers — Annual report by cabinet — Exemptions from disclosure requirements. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1984, ch. 301, § 3, effective July 13, 1984; 1992, ch. 329, § 5, effective July 14, 1992; 1998, ch. 426, § 454, effective July 15, 1998; 1998, ch. 497, § 5, effective July 15, 1998; 2000, ch. 343, § 13, effective July 14, 2000) was repealed by Acts 2002, ch. 211, § 50, effective July 15, 2002.

Psychiatric Residential Treatment Facilities

216B.450. Definitions for KRS 216B.450, 216B.455, and 216B.457.

As used in this section and KRS 216B.455 and 216B.457 :

  1. “Cabinet” means the Cabinet for Health and Family Services;
  2. “Community-based” means a facility that is located in an existing residential neighborhood or community;
  3. “Freestanding” means a completely detached building or two (2) residences under one (1) roof that are clearly separate and can serve youth independently;
  4. “Home-like” means a residence with living space designed to accommodate the daily living needs and tasks of a family unit, with opportunity for adult-child communication, shared tasks, adult-child learning, congregate meals, and family-type routines appropriate to the ages and levels of functioning of the residents;
  5. “Psychiatric residential treatment facility” means either a licensed:
    1. Level I community-based, and home-like facility with a maximum of nine (9) beds which provides inpatient psychiatric residential treatment to residents age six (6) to twenty-one (21) years who have an emotional disability or severe emotional disability as defined in KRS 200.503 , with an age range of no greater than five (5) years at the time of admission in a living unit; or
    2. Level II home-like facility that provides twenty-four (24) hour inpatient psychiatric residential treatment and habitation to persons who:
      1. Are ages four (4) to twenty-one (21) years, with an age range of no greater than five (5) years at the time of admission to the facility;
      2. Have a severe emotional disability as defined by KRS 200.503 in addition to severe and persistent aggressive behaviors, intellectual disability, sexually acting out behaviors, or developmental disability; and
      3. Do not meet the medical necessity criteria for an acute care hospital or a psychiatric hospital and whose treatment needs cannot be met in an ambulatory care setting, Level I psychiatric residential treatment facility, or other less restrictive environment;
  6. “Qualified mental health personnel” means a staff member who operates under the supervision of a qualified mental health professional; and
  7. “Qualified mental health professional” has the same meaning as in KRS 202A.011 .

History. Enact. Acts 1992, ch. 332, § 1, effective April 9, 1992; 1998, ch. 426, § 455, effective July 15, 1998; 2004, ch. 132, § 1, effective July 13, 2004; 2005, ch. 99, § 510, effective June 20, 2005; 2010, ch. 7, § 1, effective July 15, 2010.

216B.455. Certificate-of-need requirement for Level I psychiatric residential treatment facilities — Licensure — Certification — Restriction on location — Restriction on number of beds — Care and services for persons discharged from Level I and Level II facilities.

  1. A certificate of need shall be required for all Level I psychiatric residential treatment facilities. The application for a certificate of need shall include formal written agreements of cooperation that identify the nature and extent of the proposed working relationship between the proposed Level I psychiatric residential treatment facility and each of the following agencies, organizations, or facilities located in the service area of the proposed facility:
    1. Regional interagency council for children with emotional disability or severe emotional disability as defined in KRS 200.509 ;
    2. Department for Community Based Services;
    3. Local school districts;
    4. At least one (1) psychiatric hospital; and
    5. Any other agency, organization, or facility deemed appropriate by the cabinet.
  2. Notwithstanding provisions for granting of a nonsubstantive review of a certificate of need application under KRS 216B.095 , the cabinet shall review and approve the nonsubstantive review of an application seeking to increase the number of beds as permitted by KRS 216B.450 if the application is submitted by an eight (8) bed or sixteen (16) bed Level I psychiatric residential treatment facility licensed and operating or holding an approved certificate of need on July 13, 2004. The cabinet shall base its approval of expanded beds upon the Level I psychiatric residential treatment facility’s ability to meet standards designed by the cabinet to provide stability of care. The standards shall be promulgated by the cabinet in an administrative regulation in accordance with KRS Chapter 13A. An application under this subsection shall not be subject to any moratorium relating to certificate of need.
  3. All Level I psychiatric residential treatment facilities shall comply with the licensure requirements as set forth in KRS 216B.105 .
  4. All Level I psychiatric residential treatment facilities shall be certified by the Joint Commission, the Council on Accreditation of Services for Families and Children, or any other accrediting body with comparable standards that is recognized by the state.
  5. A Level I psychiatric residential treatment facility shall not be located in or on the grounds of a psychiatric hospital. More than one (1) freestanding Level I psychiatric residential treatment facility may be located on the same campus that is not in or on the grounds of a psychiatric hospital.
  6. The total number of Level I psychiatric residential treatment facility beds shall not exceed three hundred and fifteen (315) beds statewide.
    1. The Cabinet for Health and Family Services shall investigate the need for specialty foster care and post-treatment services for persons discharged from Level I and Level II psychiatric residential treatment facilities. (7) (a) The Cabinet for Health and Family Services shall investigate the need for specialty foster care and post-treatment services for persons discharged from Level I and Level II psychiatric residential treatment facilities.
    2. The cabinet shall report to the Governor and the Legislative Research Commission by August 1, 2011, detailing information on specialty foster care and post-treatment services for persons discharged from Level I and Level II psychiatric residential treatment facilities.

HISTORY: Enact. Acts 1992, ch. 332, § 2, effective April 9, 1992; 1994, ch. 512, Part 7, § 45, effective July 15, 1994; 1996, ch. 371, § 59, effective July 15, 1996; 2000, ch. 14, § 48, effective July 14, 2000; 2000, ch. 318, § 4, effective July 14, 2000; 2004, ch. 132, § 2, effective July 13, 2004; 2005, ch. 99, § 511, effective June 20, 2005; 2005, ch. 126, § 1, effective June 20, 2005; 2010, ch. 7, § 2, effective July 15, 2010; 2015 ch. 9, § 5, effective June 24, 2015.

216B.457. Certificate-of-need requirement for Level II psychiatric residential treatment facilities — Beds and locations permitted — Contents of certificate application — Criteria — Staffing requirements — Criminal records check — Treatment plan — Duties of Level II facility — Administrative regulations — Annual report.

  1. A certificate of need shall be required for all Level II psychiatric residential treatment facilities. The need criteria for the establishment of Level II psychiatric residential treatment facilities shall be in the state health plan.
  2. An application for a certificate of need for Level II psychiatric residential treatment facilities shall not exceed fifty (50) beds. Level II facility beds may be located in a separate part of a psychiatric hospital, a separate part of an acute care hospital, or a Level I psychiatric residential treatment facility if the Level II beds are located on a separate floor, in a separate wing, or in a separate building. A Level II facility shall not refuse to admit a patient who meets the medical necessity criteria and facility criteria for Level II facility services. Nothing in this section and KRS 216B.450 and 216B.455 shall be interpreted to prevent a psychiatric residential treatment facility from operating both a Level I psychiatric residential treatment facility and a Level II psychiatric residential treatment facility.
  3. The application for a Level II psychiatric residential treatment facility certificate of need shall include formal written agreements of cooperation that identify the nature and extent of the proposed working relationship between the proposed Level II psychiatric residential treatment facility and each of the following agencies, organizations, or entities located in the service area of the proposed facility:
    1. Regional interagency council for children with emotional disability or severe emotional disability created under KRS 200.509 ;
    2. Community board for mental health or individuals with an intellectual disability established under KRS 210.380 ;
    3. Department for Community Based Services;
    4. Local school districts;
    5. At least one (1) psychiatric hospital; and
    6. Any other agency, organization, or entity deemed appropriate by the cabinet.
  4. The application for a certificate of need shall include:
    1. The specific number of beds proposed for each age group and the specific, specialized program to be offered;
    2. An inventory of current services in the proposed service area; and
    3. Clear admission and discharge criteria, including age, sex, and other limitations.
  5. All Level II psychiatric residential treatment facilities shall comply with the licensure requirements as set forth in KRS 216B.105 .
  6. All Level II psychiatric residential treatment facilities shall be certified by the Joint Commission, the Council on Accreditation of Services for Families and Children, or any other accrediting body with comparable standards that are recognized by the Centers for Medicare and Medicaid Services.
  7. A Level II psychiatric residential treatment facility shall be under the clinical supervision of a qualified mental health professional with training or experience in mental health treatment of children and youth.
  8. Treatment services shall be provided by qualified mental health professionals or qualified mental health personnel. Individual staff who will provide educational programs shall meet the employment standards outlined by the Kentucky Board of Education and the Education Professional Standards Board.
  9. A Level II psychiatric residential treatment facility shall meet the following requirements with regard to professional staff:
    1. A licensed psychiatrist, who is board-eligible or board-certified as a child or adult psychiatrist, shall be employed or contracted to meet the treatment needs of the residents and the functions that shall be performed by a psychiatrist;
    2. If a Level II psychiatric residential treatment facility has residents ages twelve (12) and under, the licensed psychiatrist shall be a board-eligible or board-certified child psychiatrist; and
    3. The licensed psychiatrist shall be present in the facility to provide professional services to the facility’s residents at least weekly.
  10. A Level II psychiatric residential treatment facility shall:
    1. Prepare a written staffing plan that is tailored to meet the needs of the specific population of children and youth that will be admitted to the facility based on the facility’s admission criteria. The written staffing plan shall include but not be limited to the following:
      1. Specification of the direct care per-patient staffing ratio that the facility shall adhere to during waking hours and during sleeping hours;
      2. Delineation of the number of direct care staff per patient, including the types of staff and the mix and qualifications of qualified mental health professionals and qualified mental health personnel, that shall provide direct care and will comprise the facility’s per-patient staffing ratio;
      3. Specification of appropriate qualifications for individuals included in the per-patient staffing ratio by job description, education, training, and experience;
      4. Provision for ensuring compliance with its written staffing plan, and specification of the circumstances under which the facility may deviate from the per-patient staffing ratio due to patient emergencies, changes in patient acuity, or changes in patient census; and
      5. Provision for submission of the written staffing plan to the cabinet for approval as part of the facility’s application for initial licensure.

        No initial license to operate as a Level II psychiatric residential treatment facility shall be granted until the cabinet has approved the facility’s written staffing plan. Once a facility is licensed, it shall comply with its approved written staffing plan and, if the facility desires to change its approved per-patient staffing ratio, it shall submit a revised plan and have the plan approved by the cabinet prior to implementation of the change;

    2. Require full-time professional and direct care staff to meet the continuing education requirements of their profession or be provided with forty (40) hours per year of in-service training; and
    3. Develop and implement a training plan for all staff that includes but is not limited to the following:
      1. Behavior-management procedures and techniques;
      2. Physical-management procedures and techniques;
      3. First aid;
      4. Cardiopulmonary resuscitation;
      5. Infection-control procedures;
      6. Child and adolescent growth and development;
      7. Training specific to the specialized nature of the facility;
      8. Emergency and safety procedures; and
      9. Detection and reporting of child abuse and neglect.
  11. A Level II psychiatric residential treatment facility shall require a criminal records check to be completed on all employees and volunteers. The employment or volunteer services of an individual shall be governed by KRS 17.165 , with regard to a criminal records check. A new criminal records check shall be completed at least every two (2) years on each employee or volunteer.
    1. Any employee or volunteer who has committed or is charged with the commission of a violent offense as specified in KRS 439.3401 , a sex crime specified in KRS 17.500 , or a criminal offense against a victim who is a minor as specified in KRS 17.500 shall be immediately removed from contact with a child within the residential treatment center until the employee or volunteer is cleared of the charge. (12) (a) Any employee or volunteer who has committed or is charged with the commission of a violent offense as specified in KRS 439.3401 , a sex crime specified in KRS 17.500, or a criminal offense against a victim who is a minor as specified in KRS 17.500 shall be immediately removed from contact with a child within the residential treatment center until the employee or volunteer is cleared of the charge.
    2. An employee or volunteer under indictment, legally charged with felonious conduct, or subject to a cabinet investigation shall be immediately removed from contact with a child.
    3. The employee or volunteer shall not be allowed to work with the child until a prevention plan has been written and approved by the cabinet, the person is cleared of the charge, or a cabinet investigation reveals an unsubstantiated finding, if the charge resulted from an allegation of child abuse, neglect, or exploitation.
    4. Each employee or volunteer shall submit to a check of the central registry. An individual listed on the central registry shall not be a volunteer at or be employed by a Level II psychiatric residential treatment facility.
    5. Any employee or volunteer removed from contact with a child pursuant to this subsection may, at the discretion of the employer, be terminated, reassigned to a position involving no contact with a child, or placed on administrative leave with pay during the pendency of the investigation or proceeding.
  12. An initial treatment plan of care shall be developed and implemented for each resident, and the plan of care shall be based on initial history and ongoing assessment of the resident’s needs and strengths, with an emphasis on active treatment, transition planning, and after-care services, and shall be completed within seventy-two (72) hours of admission.
  13. A comprehensive treatment plan of care shall be developed and implemented for each resident, and the plan of care shall be based on initial history and ongoing assessment of the resident’s needs and strengths, with an emphasis on active treatment, transition planning, and after-care services, and shall be completed within ten (10) calendar days of admission.
  14. A review of the treatment plan of care shall occur at least every thirty (30) days following the first ten (10) days of treatment and shall include the following documentation:
    1. Dated signatures of appropriate staff, parent, guardian, legal custodian, or conservator;
    2. An assessment of progress toward each treatment goal and objective with revisions as indicated; and
    3. A statement of justification for the level of services needed, including suitability for treatment in a less-restrictive environment and continued services.
  15. A Level II psychiatric residential treatment facility shall provide or arrange for the provision of qualified dental, medical, nursing, and pharmaceutical care for residents. The resident’s parent, guardian, legal custodian, or conservator may choose a professional for nonemergency services.
  16. A Level II psychiatric residential treatment facility shall ensure that opportunities are provided for recreational activities that are appropriate and adapted to the needs, interests, and ages of the residents.
  17. A Level II psychiatric residential treatment facility shall assist residents in the independent exercise of health, hygiene, and grooming practices.
  18. A Level II psychiatric residential treatment facility shall assist each resident in securing an adequate allowance of personally owned, individualized, clean, and seasonal clothes that are the correct size.
  19. A Level II psychiatric residential treatment facility shall assist, educate, and encourage each resident in the use of dental, physical, or prosthetic appliances or devices and visual or hearing aids.
  20. The cabinet shall promulgate administrative regulations that include but are not limited to the following:
    1. Establishing requirements for tuberculosis skin testing for staff of a Level II psychiatric residential treatment facility;
    2. Ensuring that accurate, timely, and complete resident assessments are conducted for each resident of a Level II psychiatric residential treatment facility;
    3. Ensuring that accurate, timely, and complete documentation of the implementation of a resident’s treatment plan of care occurs for each resident of a Level II psychiatric residential treatment facility;
    4. Ensuring that an accurate, timely, and complete individual record is maintained for each resident of a Level II psychiatric residential treatment facility;
    5. Ensuring that an accurate, timely, and complete physical examination is conducted for each resident of a Level II psychiatric residential treatment facility;
    6. Ensuring accurate, timely, and complete access to emergency services is available for each resident of a Level II psychiatric residential treatment facility; and
    7. Ensuring that there is accurate, timely, and complete administration of medications for each resident of a Level II psychiatric residential treatment facility.
  21. The cabinet shall, within ninety (90) days of July 15, 2010, promulgate administrative regulations in accordance with KRS Chapter 13A to implement this section and KRS 216B.450 and 216B.455 . When promulgating the administrative regulations, the cabinet shall not consider only staffing ratios when evaluating the written staffing plan of an applicant, but shall consider the applicant’s overall ability to provide for the needs of patients.
  22. The cabinet shall report, no later than August 1 of each year, to the Interim Joint Committee on Health and Welfare regarding the implementation of this section and KRS 216B.450 and 216B.455 . The report shall include but not be limited to information relating to resident outcomes, such as lengths of stay in the facility, locations residents were discharged to, and whether residents were readmitted to a Level II psychiatric residential treatment facility within a twelve (12) month period.

HISTORY: Enact. Acts 2010, ch. 7, § 3, effective July 15, 2010; 2012, ch. 146, § 108, effective July 12, 2012; 2015 ch. 9, § 6, effective June 24, 2015.

216B.459. Medicaid reimbursement. [Repealed]

History. Enact. Acts 1992, ch. 332, § 3, effective April 9, 1992; 2004, ch. 132, § 3, effective July 13, 2004; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

Penalties

216B.990. Penalties.

  1. Any person who, in willful violation of this chapter, operates a health facility or abortion facility without first obtaining a license or continues to operate a health facility or abortion facility after a final decision suspending or revoking a license shall be fined not less than five hundred dollars ($500) nor more than ten thousand dollars ($10,000) for each violation.
  2. Any person who, in willful violation of this chapter, acquires major medical equipment, establishes a health facility, or obligates a capital expenditure without first obtaining a certificate of need, or after the applicable certificate of need has been withdrawn, shall be fined one percent (1%) of the capital expenditure involved but not less than five hundred dollars ($500) for each violation.
  3. Any hospital acting by or through its agents or employees which violates any provision of KRS 216B.400 shall be punished by a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500).
  4. Any health facility which willfully violates KRS 216B.250 shall be fined one hundred dollars ($100) per day for failure to post required notices and one hundred dollars ($100) per instance for willfully failing to provide an itemized statement within the required time frames.
  5. In addition to the civil penalties established under KRS 216B.306(1) and (4), any person who advertises, solicits boarders, or operates a boarding home without first obtaining a registration as required by KRS 216B.305 and any person who aids or abets the operation of a boarding home that is not registered shall be imprisoned for no more than twelve (12) months.
  6. Any person or entity establishing, managing, or operating an abortion facility or conducting the business of an abortion facility which otherwise violates any provision of this chapter or any administrative regulation promulgated thereunder regarding abortion facilities shall be subject to revocation or suspension of the license of the abortion facility. In addition, any violation of any provision of this chapter regarding abortion facilities or any administrative regulation related thereto by intent, fraud, deceit, unlawful design, willful and deliberate misrepresentation, or by careless, negligent, or incautious disregard for the statute or administrative regulation, either by persons acting individually or in concert with others, shall constitute a violation and shall be punishable by a fine not to exceed one thousand dollars ($1,000) for each offense. Each day of continuing violation shall be considered a separate offense. The venue for prosecution of the violation shall be in any county of the state in which the violation, or any portion thereof, occurred.
  7. Any hospital acting by or through its agents or employees that violates any provision of KRS 216B.150 shall be punished by a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500) for each violation.

History. Enact. Acts 1980, ch. 135, §§ 25, 26, 34, effective July 15, 1980; 1982, ch. 347, § 26, effective July 15, 1982; 1986, ch. 19, § 5, effective July 15, 1986; 1986, ch. 288, § 2, effective July 15, 1986; 1990, ch. 439, § 6, effective July 13, 1990; 1992, ch. 63, § 6, effective July 14, 1992; 1998, ch. 503, § 2, effective July 15, 1998; 1998, ch. 582, § 8, effective July 15, 1998; 2004, ch. 170, § 3, effective July 13, 2004; 2010, ch. 161, § 34, effective July 15, 2010.

Compiler’s Notes.

Section 9 of Acts 1998, ch. 582, stated: “This Act shall not be construed as repealing any of the laws of the Commonwealth relating to abortion facilities but shall be considered supplementary to them.”

Section 10 of Acts 1998, ch. 582, stated: “If any provision of this Act or its application is held invalid, the invalidity shall not affect other provisions or applications of this Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.”

Research References and Practice Aids

Northern Kentucky Law Review.

Falstrom, Decisions Under the Emergency Medical Treatment and Active Labor Act: A Judicial Cure for Patient Dumping, 19 N. Ky. L. Rev. 365 (1992).

216B.990. Penalties.

  1. Any person who, in willful violation of this chapter, operates a health facility or abortion facility without first obtaining a license or continues to operate a health facility or abortion facility after a final decision suspending or revoking a license shall be fined not less than five hundred dollars ($500) nor more than ten thousand dollars ($10,000) for each violation.
  2. Any person who, in willful violation of this chapter, acquires major medical equipment, establishes a health facility, or obligates a capital expenditure without first obtaining a certificate of need, or after the applicable certificate of need has been withdrawn, shall be fined one percent (1%) of the capital expenditure involved but not less than five hundred dollars ($500) for each violation.
  3. Any hospital acting by or through its agents or employees which violates any provision of KRS 216B.400 shall be punished by a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500).
  4. Any health facility which willfully violates KRS 216B.250 shall be fined one hundred dollars ($100) per day for failure to post required notices and one hundred dollars ($100) per instance for willfully failing to provide an itemized statement within the required time frames.
  5. In addition to the civil penalties established under KRS 216B.306(1) and (4), any person who advertises, solicits boarders, or operates a boarding home without first obtaining a registration as required by KRS 216B.305 and any person who aids or abets the operation of a boarding home that is not registered shall be imprisoned for no more than twelve (12) months.
  6. Any person or entity establishing, managing, or operating an abortion facility or conducting the business of an abortion facility which otherwise violates any provision of this chapter or any administrative regulation promulgated thereunder regarding abortion facilities shall be subject to revocation or suspension of the license of the abortion facility. In addition, any violation of any provision of this chapter regarding abortion facilities or any administrative regulation related thereto by intent, fraud, deceit, unlawful design, willful and deliberate misrepresentation, or by careless, negligent, or incautious disregard for the statute or administrative regulation, either by persons acting individually or in concert with others, shall constitute a violation and shall be punishable by a fine not to exceed one thousand dollars ($1,000) for each offense. Each day of continuing violation shall be considered a separate offense. The venue for prosecution of the violation shall be in any county of the state in which the violation, or any portion thereof, occurred.
  7. Any hospital acting by or through its agents or employees that violates any provision of KRS 216B.150 shall be punished by a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500) for each violation.
  8. Any health facility acting by or through its agents or employees that violates any provision of Section 1 of this Act shall be punished by a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500) for each violation.

HISTORY: Enact. Acts 1980, ch. 135, §§ 25, 26, 34, effective July 15, 1980; 1982, ch. 347, § 26, effective July 15, 1982; 1986, ch. 19, § 5, effective July 15, 1986; 1986, ch. 288, § 2, effective July 15, 1986; 1990, ch. 439, § 6, effective July 13, 1990; 1992, ch. 63, § 6, effective July 14, 1992; 1998, ch. 503, § 2, effective July 15, 1998; 1998, ch. 582, § 8, effective July 15, 1998; 2004, ch. 170, § 3, effective July 13, 2004; 2010, ch. 161, § 34, effective July 15, 2010; 2021 ch. 57, § 2.

CHAPTER 216C Medical Review Panels [Declared Void in Its Entirety by the Kentucky Supreme Court]

Legislative Research Commission Note

(11/15/2018). On November 15, 2018, the Kentucky Supreme Court ruled that the 2017 Medical Review Panel Act, of which this section is part, violated Kentucky Constitution Section 14’s guarantee of a right of access to the courts to obtain a remedy for injury, and is, therefore, void in its entirety.

216C.005. Purpose of chapter. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 1, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.010. Definitions for chapter. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 2, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.020. Review by medical review panel required for all malpractice and malpractice-related claims — Exceptions — Timing. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 3, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.030. Parties may agree to not submit malpractice or malpractice-related claim to medical review panel. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 4, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.040. Tolling of statute of limitations — When complaint considered filed — Filing fee. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 5, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.050. Service of copy of complaint — When service is complete. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 6, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.060. Composition of medical review panels — Expediting of review of proposed complaint — Time allowed for presentation of evidence. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 7, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.070. Selection of chairperson of medical review panel. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 8, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.080. Health care providers eligible for medical review panel selection. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 9, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.090. Selection of non-attorney members of medical review panel. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 10, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.100. Challenges of selection of member of medical review panel. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 11, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.110. Notice to cabinet of medical review panel membership. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 12, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.120. Relief from serving as member of medical review panel — Conditions — Procedure. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 13, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.130. Sanctions for failing to act as required. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 14, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.140. Removal and replacement of panel chairperson. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 15, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.150. Removal and replacement of panel member. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 16, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.160. Submission of evidence to medical review panel. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 17, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.170. Restriction on ex parte communication with panel member — Panel’s right to all necessary and relevant information. [Declared void — See LRC Note Below]

HISTORY: Enact. Acts 2017 ch. 22, § 18, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.180. Opinion of medical review panel after submission of all evidence — Conclusion to be reached by majority of voting panel members — Effect of opinion. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 19, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.190. When panel’s delay in rendering opinion permits filing complaint in court — Explanation of delay. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 20, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.200. Admission of panel’s opinion into evidence in court. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 21, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.210. Immunity from civil liability for panel member for actions taken within course and scope of required duties. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 22, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.220. Compensation of panel chairperson and members. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 23, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.230. Submission of panel’s report. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 24, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.240. Court’s jurisdiction to compel or limit discovery, enforce or quash subpoenas, and apply sanctions. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 25, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.250. Party to medical review panel’s proceeding may invoke court’s jurisdiction and file complaint and motion with court clerk. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 26, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.260. Filing and service of written response to motion filed with court. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 27, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.270. Filing of motion and proposed complaint with court clerk temporarily stays medical review panel’s proceedings. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 28, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

216C.280. Court’s enforcement of ruling on motion filed, subject to right of appeal. [Declared void]

HISTORY: Enact. Acts 2017 ch. 22, § 29, effective June 29, 2017; repealed by 2019 ch. 180, § 2, effective June 27, 2019.

CHAPTER 217 Foods, Drugs, and Poisons

Food, Drug and Cosmetic Act

217.002. Individuals exempt from application of chapter.

The provisions of this chapter shall not apply to common carriers or to warehousemen, while engaged in lawfully transporting or storing legend drugs, or to any of their employees acting within the scope of their employment; or to public officers or their employees in the performance of their official duties requiring possession or control of legend drugs; or to temporary incidental possession by employees or agents of persons lawfully entitled to possession, or by persons whose possession is for the purpose of aiding public officers in performing their official duties.

History. Enact. Acts 1998, ch. 301, § 28, effective July 15, 1998.

217.005. Citation of KRS 217.005 to 217.215.

KRS 217.005 to 217.215 may be cited as the Kentucky Food, Drug and Cosmetic Act.

History. Enact. Acts 1960, ch. 247, § 1, effective June 16, 1960.

NOTES TO DECISIONS

1.Absence of Conflict.

True test under KRS 67A.070(2)(a) of the concurrent authority of the state and local government to regulate a particular area is the absence of conflict, and the simple fact that the state has made certain regulations does not prohibit local government from establishing additional requirements so long as there is no conflict between them. Thus, a local ordinance, which banned smoking in public buildings was neither expressly nor impliedly preempted by state statutes that also touched on the issue of smoking such as KRS 438.300 ; the Kentucky Food, Drug and Cosmetic Act, KRS 217.005 et seq; or the Retail Food Code, Ky. 902 KAR 45:005. Lexington Fayette County Food & Bev. Ass'n v. Lexington-Fayette Urban County Gov't, 131 S.W.3d 745, 2004 Ky. LEXIS 94 ( Ky. 2004 ).

Research References and Practice Aids

Cross-References.

Alcoholism, KRS ch. 222.

Frozen food locker plants, regulation of, KRS 221.010 to 221.110 .

Grain warehouses, KRS ch. 251.

Livestock and poultry disease control, KRS ch. 257.

Marketing agricultural products, KRS ch. 260.

Pharmacists, KRS ch. 315.

Kentucky Law Journal.

Note, Consumer Protection and Prescription Drugs: The Generic Drug Substitution Laws, 67 Ky. L.J. 384 (1978-1979).

217.006. Applicability of definitions in KRS 516.010 to KRS 217.207, 217.208, and 217.209.

For purposes of KRS 217.207 , 217.208 , and 217.209 , the definitions found in KRS 516.010 apply.

History. Enact. Acts 1998, ch. 301, § 7, effective July 15, 1998.

217.007. Applicability of penalties in KRS Chapter 506 to KRS 217.005 to 217.215.

Unless this chapter provides a specific penalty for the same act, the provisions of KRS Chapter 506 shall apply to offenses under KRS 217.005 to 217.215 .

History. Enact. Acts 1998, ch. 301, § 10, effective July 15, 1998.

217.010. Definitions. [Repealed.]

Compiler’s Notes.

This section (1905a-65, 2060a-1, 2060a-4: amend. Acts 1944, ch. 153, § 1; 1958, ch. 98, § 13) was repealed by Acts 1960, ch. 247, § 24.

217.015. Definitions for KRS 217.005 to 217.215.

For the purposes of KRS 217.005 to 217.215 :

  1. “Advertisement” means all representations, disseminated in any manner or by any means, other than by labeling, for the purpose of inducing, or which are likely to induce, directly or indirectly, the purchase of food, drugs, devices, or cosmetics;
  2. “Bread” and “enriched bread” mean only the foods commonly known and described as white bread, white rolls, white buns, enriched white bread, enriched rolls, and enriched white buns, as defined under the federal act. For the purposes of KRS 217.136 and 217.137 , “bread” or “enriched bread” also means breads that may include vegetables or fruit as an ingredient;
  3. “Cabinet” means the Cabinet for Health and Family Services or its designee;
  4. “Color” means but is not limited to black, white, and intermediate grays;
  5. “Color additive” means a material that:
    1. Is a dye, pigment, or other substance made by a process of synthesis or similar artifice, or extracted, isolated, or otherwise derived, with or without intermediate or final change of identity, from a vegetable, animal, mineral, or other source. Nothing in this paragraph shall be construed to apply to any pesticide chemical, soil or plant nutrient, or other agricultural chemical solely because of its effect in aiding, retarding, or otherwise affecting, directly or indirectly, the growth or other natural physiological process of produce of the soil and thereby affecting its color, whether before or after harvest; or
    2. When added or applied to a food, drug, or cosmetic, or to the human body or any part thereof, is capable, alone or through reaction with another substance, of imparting color. “Color additive” does not include any material that has been or may in the future be exempted under the federal act;
  6. “Contaminated with filth” means any food, drug, device, or cosmetic that is not securely protected from dust, dirt, and as far as may be necessary by all reasonable means, from all foreign or injurious contaminants;
  7. “Cosmetic” means:
    1. Articles intended to be rubbed, poured, sprinkled, sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance; and
    2. Articles intended for use as a component of those articles, except that the term shall not include soap;
  8. “Device,” except when used in subsection (48) of this section, KRS 217.035(6), KRS 217.065(3), KRS 217.095(3), and KRS 217.175(10), means instruments, apparatus, and contrivances, including their components, parts, and accessories, intended:
    1. For use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; or
    2. To affect the structure or any function of the body of man or other animals;
  9. “Dispense” means to deliver a drug or device to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the packaging, labeling, or compounding necessary to prepare the substance for that delivery;
  10. “Dispenser” means a person who lawfully dispenses a drug or device to or for the use of an ultimate user;
  11. “Drug” means:
    1. Articles recognized in the official United States pharmacopoeia, official homeopathic pharmacopoeia of the United States, or official national formulary, or any supplement to any of them;
    2. Articles intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animals;
    3. Articles, other than food, intended to affect the structure or any function of the body of man or other animals; and
    4. Articles intended for use as a component of any article specified in this subsection but does not include devices or their components, parts, or accessories;
  12. “Enriched,” as applied to flour, means the addition to flour of vitamins and other nutritional ingredients necessary to make it conform to the definition and standard of enriched flour as defined under the federal act;
  13. “Environmental Pesticide Control Act of 1972” means the Federal Environmental Pesticide Control Act of 1972, Pub. L. 92-516, and all amendments thereto;
  14. “Fair Packaging and Labeling Act” means the Fair Packaging and Labeling Act as it relates to foods and cosmetics, 15 U.S.C. secs. 1451 et seq., and all amendments thereto;
  15. “Federal act” means the Federal Food, Drug and Cosmetic Act, 21 U.S.C. secs. 301 et seq., 52 Stat. 1040 et seq., or amendments thereto;
  16. “Filled milk” means any milk, cream, or skimmed milk, whether or not condensed, evaporated, concentrated, frozen, powdered, dried, or desiccated, to which has been added, or which has been blended or compounded with, any fat or oil other than milk fat, except the fat or oil of contained eggs and nuts and the fat or oil of substances used for flavoring purposes only, so that the resulting product is an imitation or semblance of milk, cream, skimmed milk, ice cream mix, ice cream, or frozen desserts, whether or not condensed, evaporated, concentrated, frozen, powdered, dried, or desiccated, whether in bulk or in containers, hermetically sealed or unsealed. This definition does not mean or include any milk or cream from which no part of the milk or butter fat has been extracted, whether or not condensed, evaporated, concentrated, powdered, dried, or desiccated, to which has been added any substance rich in vitamins, nor any distinctive proprietary food compound not readily mistaken for milk or cream or for condensed, evaporated, concentrated, powdered, dried, or desiccated milk or cream, if the compound is prepared and designed for the feeding of infants or young children, sick or infirm persons, and customarily used on the order of a physician, and is packed in individual containers bearing a label in bold type that the contents are to be used for those purposes; nor shall this definition prevent the use, blending, or compounding of chocolate as a flavor with milk, cream, or skimmed milk, desiccated, whether in bulk or in containers, hermetically sealed or unsealed, to or with which has been added, blended or compounded no other fat or oil other than milk or butter fat;
  17. “Flour” means only the foods commonly known as flour, white flour, wheat flour, plain flour, bromated flour, self-rising flour, self-rising white flour, self-rising wheat flour, phosphated flour, phosphated white flour, and phosphated wheat flour, defined under the federal act;
  18. “Food” means:
    1. Articles used for food or drink for man or other animals;
    2. Chewing gum; and
    3. Articles used for components of any such article;
  19. “Food additive” means any substance the intended use of which results or may be reasonably expected to result, directly or indirectly, in its becoming a component or otherwise affecting the characteristics of any food, including any substance intended for use in producing, manufacturing, packing, processing, preparing, treating, packaging, transporting, or holding food; and including any source of radiation intended for any of these uses, if the substance is not generally recognized, among experts qualified by scientific training and experience to evaluate its safety, as having been adequately shown through scientific procedures or, in the case of a substance used in a food prior to January 1, 1958, through either scientific procedures or experience based on common use in food to be safe under the conditions of its intended use; except that the term does not include:
    1. A pesticide chemical in or on a raw agricultural commodity;
    2. A pesticide chemical to the extent that it is intended for use or is used in the production, storage, or transportation of any raw agricultural commodity;
    3. A color additive; or
    4. Any substance used in accordance with a sanction or approval granted prior to the enactment of the Food Additives Amendment of 1958, pursuant to the federal act; the Poultry Products Inspection Act, 21 U.S.C. secs. 451 et seq.; or the Meat Inspection Act of 1907; and amendments thereto;
  20. “Food processing establishment” means any commercial establishment in which food is manufactured, processed, or packaged for human consumption, but does not include retail food establishments, home-based processors, or home-based microprocessors;
  21. “Food service establishment” means any fixed or mobile commercial establishment that engages in the preparation and serving of ready-to-eat foods in portions to the consumer, including but not limited to: restaurants; coffee shops; cafeterias; short order cafes; luncheonettes; grills; tea rooms; sandwich shops; soda fountains; taverns; bars; cocktail lounges; nightclubs; roadside stands; industrial feeding establishments; private, public or nonprofit organizations or institutions routinely serving food; catering kitchens; commissaries; charitable food kitchens; or similar places in which food is prepared for sale or service on the premises or elsewhere with or without charge. It does not include food vending machines, establishments serving beverages only in single service or original containers, or retail food stores which only cut, slice, and prepare cold-cut sandwiches for individual consumption;
  22. “Food storage warehouse” means any establishment in which food is stored for subsequent distribution;
  23. “Immediate container” does not include package liners;
  24. “Imminent health hazard” means a significant threat or danger to health that is considered to exist when there is evidence sufficient to show that a product, practice, circumstance, or event creates a situation that requires immediate correction or cessation of operation to prevent illness or injury based on:
    1. The number of potential illnesses or injuries; or
    2. The nature, severity, and duration of the anticipated illness or injury;
  25. “Interference” means threatening or otherwise preventing the performance of lawful inspections or duties by agents of the cabinet during all reasonable times of operation;
  26. “Label” means a display of written, printed, or graphic matter upon the immediate container of any article; and a requirement made by or under authority of KRS 217.005 to 217.215 that any word, statement, or other information appearing on the label shall not be considered to be complied with unless the word, statement, or other information also appears on the outside container or wrapper, if any there be, of the retail package of the article, or is easily legible through the outside container or wrapper;
  27. “Labeling” means all labels and other written, printed, or graphic matter:
    1. Upon an article or any of its containers or wrappers; or
    2. Accompanying the article;
  28. “Legend drug” means a drug defined by the Federal Food, Drug and Cosmetic Act, as amended, and under which definition its label is required to bear the statement “Caution: Federal law prohibits dispensing without prescription.”;
  29. “Meat Inspection Act” means the Federal Meat Inspection Act, 21 U.S.C. secs. 71 et seq., 34 Stat. 1260 et seq., including any amendments thereto;
  30. “New drug” means:
    1. Any drug the composition of which is such that the drug is not generally recognized among experts qualified by scientific training and experience to evaluate the safety of drugs as safe for use under the conditions prescribed, recommended, or suggested in the labeling thereof; or
    2. Any drug the composition of which is such that the drug, as a result of investigations to determine its safety for use under prescribed conditions, has become so recognized, but which has not, otherwise than in the investigations, been used to a material extent or for a material time under the conditions;
  31. “Official compendium” means the official United States pharmacopoeia, official homeopathic pharmacopoeia of the United States, official national formulary, or any supplement to any of them;
  32. “Person” means an individual, firm, partnership, company, corporation, trustee, association, or any public or private entity;
  33. “Pesticide chemical” means any substance that alone in chemical combination, or in formulation with one or more other substances, is an “economic poison” within the meaning of the Federal Insecticide, Fungicide and Rodenticide Act and amendments thereto, and that is used in the production, storage, or transportation of raw agricultural commodities;
  34. “Poultry Products Inspection Act” means the Federal Poultry and Poultry Products Inspection Act, 21 U.S.C. secs. 451 et seq., Pub. L. 85-172, 71 Stat. 441, and any amendments thereto;
  35. “Practitioner” means medical or osteopathic physicians, dentists, chiropodists, and veterinarians who are licensed under the professional licensing laws of Kentucky to prescribe and administer drugs and devices. “Practitioner” includes optometrists when administering or prescribing pharmaceutical agents authorized in KRS 320.240(12) to (14), advanced practice registered nurses as authorized in KRS 314.011 and 314.042 , physician assistants when administering or prescribing pharmaceutical agents as authorized in KRS 311.858 , and health care professionals who are residents of and actively practicing in a state other than Kentucky and who are licensed and have prescriptive authority under the professional licensing laws of another state, unless the person’s Kentucky license has been revoked, suspended, restricted, or probated, in which case the terms of the Kentucky license shall prevail;
  36. “Prescription” means a written or oral order for a drug or medicine, or combination or mixture of drugs or medicines, or proprietary preparation, that is signed, given, or authorized by a medical, advanced practice registered nurse, dental, chiropody, veterinarian, or optometric practitioner, and intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals;
  37. “Prescription blank” means a document that conforms with KRS 217.216 and is intended for prescribing a drug to an ultimate user;
  38. “Raw agricultural commodity” means any food in its raw or natural state, including all fruits that are washed, colored, or otherwise treated in their unpeeled natural form prior to marketing;
  39. “Retail food establishment” means any food service establishment, retail food store, or a combination of both within the same establishment;
  40. “Retail food store” means any fixed or mobile establishment where food or food products, including prepackaged, labeled sandwiches or other foods to be heated in a microwave or infrared oven at the time of purchase, are offered for sale to the consumer, and intended for off-premises consumption, but does not include establishments which handle only prepackaged, snack-type, nonpotentially hazardous foods, markets that offer only fresh fruits and vegetables for sale, food service establishments, food and beverage vending machines, vending machine commissaries, food processing establishments, or home-based processors;
  41. “Salvage distributor” means a person who engages in the business of distributing, peddling, or otherwise trafficking in any salvaged merchandise;
  42. “Salvage processing plant” means an establishment operated by a person engaged in the business of reconditioning, labeling, relabeling, repackaging, recoopering, sorting, cleaning, culling or who by other means salvages, sells, offers for sale, or distributes for human or animal consumption or use any salvaged food, beverage, including beer, wine and distilled spirits, vitamins, food supplements, dentifices, cosmetics, single-service food containers or utensils, containers and packaging materials used for foods and cosmetics, soda straws, paper napkins, or any other product of a similar nature that has been damaged or contaminated by fire, water, smoke, chemicals, transit, or by any other means;
  43. “Second or subsequent offense” has the same meaning as it does in KRS 218A.010 ;
  44. “Secretary” means the secretary of the Cabinet for Health and Family Services;
  45. “Temporary food service establishment” means any food service establishment which operates at a fixed location for a period of time, not to exceed fourteen (14) consecutive days;
  46. “Traffic” has the same meaning as it does in KRS 218A.010 ;
  47. “Ultimate user” has the same meaning as it does in KRS 218A.010 ;
  48. If an article is alleged to be misbranded because the labeling is misleading, or if an advertisement is alleged to be false because it is misleading, in determining whether the labeling or advertisement is misleading, there shall be taken into account, among other things, not only representations made or suggested by statement, word, design, device, sound, or in any combination thereof, but also the extent to which the labeling or advertisement fails to reveal facts that are material in the light of the representations or material with respect to consequences which may result from the use of the article to which the labeling or advertisement relates under the conditions of use prescribed in the labeling or advertisement thereof or under the conditions of use as are customary or usual;
  49. The representation of a drug in its labeling or advertisement as an antiseptic shall be considered to be a representation that it is a germicide, except in the case of a drug purporting to be, or represented as, an antiseptic for inhibitory use as a wet dressing, ointment, dusting powder, or other use involving prolonged contact with the body;
  50. The provisions of KRS 217.005 to 217.215 regarding the selling of food, drugs, devices, or cosmetics shall be considered to include the manufacture, production, processing, packing, exposure, offer, possession, and holding of those articles for sale, the sale, dispensing, and giving of those articles, and the supplying or applying of those articles in the conduct of any food, drug, or cosmetic establishment;
  51. “Home” means a primary residence occupied by the processor, that contains only two (2) ranges, ovens, or double-ovens, and no more than three (3) refrigerators used for cold storage. This equipment shall have been designed for home use and not for commercial use, and shall be operated in the kitchen within the residence;
  52. “Formulated acid food product” means an acid food in which the addition of a small amount of low-acid food results in a finished equilibrium pH of 4.6 or below that does not significantly differ from that of the predominant acid or acid food;
  53. “Acidified food product” means a low-acid food to which acid or acidic food is added and which has a water activity value greater than 0.85, and a finished equilibrium pH of 4.6 or below;
  54. “Low-acid food” means foods, other than alcoholic beverages, with a finished equilibrium pH greater than 4.6, and a water activity value greater than 0.85;
  55. “Acid food” means foods that have a natural pH of 4.6 or below;
  56. “Home-based processor” means a person who in his or her home, produces or processes non-potentially hazardous foods, including but not limited to dried herbs, spices, nuts, candy, dried grains, whole fruit and vegetables, mixed-greens, jams, jellies, sweet sorghum syrup, preserves, fruit butter, bread, fruit pies, cakes, or cookies, and who has a gross income of no more than sixty thousand dollars ($60,000) annually from the sale of the products;
  57. “Home-based microprocessor” means a farmer who, in the farmer’s home or certified or permitted kitchen, produces or processes foods, including but not limited to acid foods, formulated acid food products, acidified food products, or low-acid canned foods, and who has a gross income of no more than sixty thousand dollars ($60,000) annually from the sale of the product;
  58. “Certified” means any person or home-based microprocessor who:
    1. Has attended the Kentucky Cooperative Extension Service’s microprocessing program or pilot microprocessing program and has been identified by the Kentucky Cooperative Extension Service as having satisfactorily completed the prescribed course of instruction; or
    2. Has attended some other school pursuant to 21 C.F.R. sec. 114.10;
  59. “Farmer” means a person who is a resident of Kentucky and owns or rents agricultural land pursuant to subsection (9) of KRS 132.010 or horticultural land pursuant to subsection (10) of KRS 132.010 . For the purposes of KRS 217.136 to 217.139 , “farmer” also means any person who is a resident of Kentucky and has grown the primary horticultural and agronomic ingredients used in the home-based microprocessed products which they have produced; and
  60. “Farmers market temporary food service establishment” means any temporary food service establishment operated by a farmer who is a member of the market which operates within the confines of a farmers market registered with the Kentucky Department of Agriculture for the direct-to-consumer marketing of Kentucky-grown farm products from approved sources for a period of time not to exceed two (2) days per week for any consecutive six (6) months period in a calendar year.

History. Enact. Acts 1960, ch. 247, § 2, effective June 16, 1960; 1974, ch. 74, Art. VI, § 107(1), (10) and (11); 1978, ch. 179, § 4, effective June 17, 1978; 1978, ch. 292, § 1, effective June 17, 1978; 1982, ch. 247, § 10, effective July 15, 1982; 1986, ch. 12, § 4, effective July 15, 1986; 1990, ch. 458, § 1, effective July 13, 1990; 1996, ch. 342, § 5, effective July 15, 1996; 1998, ch. 7, § 1, effective February 19, 1998, retroactive to January 1, 1998; 1998, ch. 228, § 7, effective July 15, 1998; 1998, ch. 297, § 1, effective July 15, 1998; 1998, ch. 301, § 1, effective July 15, 1998; 1998, ch. 426, § 456, effective July 15, 1998; 2000, ch. 361, § 17, effective July 14, 2000; 2002, ch. 130, § 35, effective July 15, 2002; 2003, ch. 42, § 1, effective June 24, 2003; 2003, ch. 51, § 1, effective June 24, 2003; 2005, ch. 99, § 512, effective June 20, 2005; 2007, ch. 97, § 1, effective March 23, 2007; 2010, ch. 85, § 41, effective July 15, 2010; 2015 ch. 117, § 7, effective June 24, 2015; 2018 ch. 77, § 1, effective July 14, 2018; 2019 ch. 181, § 3, effective March 26, 2019.

Compiler’s Notes.

The Federal Insecticide, Fungicide and Rodenticide Act, referred to in subdivision (33) of this section, and the Federal Environmental Pesticide Control Act of 1972, referred to in subdivision (13) of this section, are both compiled as 7 USCS § 136 et seq.

NOTES TO DECISIONS

1.Legend Drug.

Because the Commonwealth failed to prove that capsules contained a legend drug, defendant was entitled to a directed verdict on the charge of trafficking in a legend drug. Jones v. Commonwealth, 567 S.W.3d 922, 2019 Ky. App. LEXIS 14 (Ky. Ct. App. 2019).

Opinions of Attorney General.

The Department for Human Resources (now Cabinet for Health and Family Services) may not decline to enforce the provisions of KRS 217.005 to 217.215 simply because similar acts have been held unconstitutional by the courts of other jurisdictions. OAG 75-336 .

The product known as “Pet Imitation Sour Cream,” which contains “skimmed milk, vegetable fat with BHA and BHT added as preservatives, nonfat dry milk, food starch-modified, mono and di-glycerides, lactic acid, guar gum, salt, acetic acid, artificial flavor, sodium phosphate, agor, sibion dioxide, and artificial color” is “filled milk” as defined by this section. OAG 75-608 .

A nurse is not authorized to dispense any controlled substance even under the immediate supervision of a licensed practicing physician unless the physician has prescribed the substance. OAG 76-217 .

A medication order on an in-patient chart signed by either a physician assistant student or a medical student cannot suffice for a prescription and a pharmacist presented with such an order cannot legally dispense thereon. OAG 79-613 .

Neither physician assistant students nor medical students come within the definition of practitioner. OAG 79-613 .

Kentucky pharmacies may only fill prescriptions which are written by practitioners licensed under Kentucky law; and a prescription written by a Tennessee physician who is not licensed to practice in Kentucky may not be filled by a Kentucky pharmacy, whether said prescription complies with Tennessee’s Medical Board Regulations or not; however, a Kentucky pharmacy may fill a prescription written by a Tennessee physician who is also licensed to practice under the laws of Kentucky so long as such prescription is in compliance with Kentucky law, and regardless of whether the prescription violates Tennessee law. OAG 92-28 .

“Licensed practitioner” means one who is licensed under the laws of the Commonwealth of Kentucky and who is permitted to prescribe by those laws. (Practitioner may now include licensed and practicing health care professionals residing in states other than Kentucky.) OAG 92-28 .

Pharmacists may not legally fill prescriptions written by advanced registered nurse practitioners. OAG 93-36 .

217.020. When food deemed adulterated. [Repealed.]

Compiler’s Notes.

This section (1905a-66, 2060a-3) was repealed by Acts 1960, ch. 247, § 24.

217.025. When food deemed adulterated.

A food shall be deemed to be adulterated:

    1. If it bears or contains any poisonous or deleterious substance which may render it injurious to health; but in case the substance is not an added substance such food shall not be considered adulterated under this subsection if the quantity of such substance in such food does not ordinarily render it injurious to health; or (1) (a) If it bears or contains any poisonous or deleterious substance which may render it injurious to health; but in case the substance is not an added substance such food shall not be considered adulterated under this subsection if the quantity of such substance in such food does not ordinarily render it injurious to health; or
    2. If it bears or contains any added poisonous or added deleterious substance which is unsafe within the meaning of KRS 217.045 ; or
    3. If it consists in whole or in part of a diseased, contaminated, filthy, putrid, or decomposed substance, or if it is otherwise unfit for food; or
    4. If it has been produced, prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered diseased, unwholesome, or injurious to health; or
    5. If it is the product of a diseased animal or an animal which has died otherwise than by slaughter, or that has been fed upon the uncooked offal from a slaughterhouse; or
    6. If its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health;
    1. If any valuable constituent has been in whole or in part omitted or abstracted therefrom; or (2) (a) If any valuable constituent has been in whole or in part omitted or abstracted therefrom; or
    2. If any substance has been substituted wholly or in part therefor; or
    3. If damage or inferiority has been concealed in any manner; or
    4. If any substance has been added thereto or mixed or packed therewith so as to increase its bulk or weight, or reduce its quality or strength or make it appear better or of greater value than it is;
  1. If it is confectionery and it bears or contains any nonnutritive article or substance except harmless coloring, harmless flavoring, harmless resinous glaze not in excess of four-tenths of one percent (0.4%), harmless natural wax not in excess of four-tenths of one percent (0.4%), harmless natural gum, and pectin; provided that this subsection shall not apply to any chewing gum by reason of its containing harmless nonnutritive masticatory substances;
  2. If it bears or contains a coal-tar color other than one from a batch which has been certified under authority of the federal act;
  3. If it is filled milk.

History. Enact. Acts 1960, ch. 247, § 3, effective June 16, 1960; 1978, ch. 292, § 2, effective June 17, 1978.

Legislative Research Commission Note.

Although this section was included in Acts 1978, ch. 292, § 2, as having been amended, there appears to be no change in this section.

NOTES TO DECISIONS

1.Construction.

In state action seeking injunction against food company’s production and sale of food, it was erroneous for the trial court under subdivision (1)(c) of this section to hold that in order for an article of food containing any diseased, contaminated, filthy, putrid or decomposed substance to be found to be adulterated it must also be found that this condition resulted in the article being unfit for human consumption, since such interpretation ignores the disjunctive “or” contained in the subdivision which provides that an article is adulterated if it consists in whole or in part of a diseased, contaminated, filthy, putrid or decomposed substance or it is adulterated if it is unfit for human consumption for any other reason. Commonwealth, Dep't for Human Resources v. Kentucky Products, Inc., 616 S.W.2d 496, 1981 Ky. LEXIS 249 ( Ky. 1981 ).

2.Alternate Remedy.

Where Department of Human Resources sought injunction against food products company to prevent the production, packing or sale of its food until unsanitary conditions were corrected, the circuit court properly assumed jurisdiction, since it had equity jurisdiction and thus could exercise the provisions of subsection (2) of KRS 217.115 to bring the action to a final and full conclusion, even though the action would have properly been disposed of under this section, since any action in the district court under KRS 217.115 would be entitled to a constitutional guarantee of a right of appeal to the Circuit Court under Ky. Const., § 115, and consequently on appeal the Circuit Court would unquestionably have jurisdiction to provide the remedy set forth in subsection (2) of KRS 217.115. Commonwealth, Dep't for Human Resources v. Kentucky Products, Inc., 616 S.W.2d 496, 1981 Ky. LEXIS 249 ( Ky. 1981 ).

3.When Adulterated.

In state action to secure injunction against food products company to prevent production, packaging or sale of food while unsanitary conditions existed, it was error for trial court to conclude that the Department of Human Resources had the burden of proving under subdivision (1)(d) of this section that the unsanitary conditions existed when the product was produced, prepared or packaged, since the disjunctive “or” in the subsection allows the state to prove either of two (2) separate conditions, either at the time of production, preparation or packaging, or while the product is being held, thus if unsanitary conditions existed at either of these two (2) times, the product was adulterated. Commonwealth, Dep't for Human Resources v. Kentucky Products, Inc., 616 S.W.2d 496, 1981 Ky. LEXIS 249 ( Ky. 1981 ).

Cited:

Commonwealth, Dep’t for Human Resources v. Kentucky Products, Inc., 616 S.W.2d 496, 1981 Ky. LEXIS 249 ( Ky. 1981 ).

217.030. When food deemed misbranded. [Repealed.]

Compiler’s Notes.

This section (1905a-67, 2060a-2) was repealed by Acts 1960, ch. 247, § 24.

217.035. When food deemed misbranded.

A food shall be deemed to be misbranded:

  1. If its labeling is false or misleading in any particular or its labeling or packaging fails to conform with the requirements of KRS 217.037 ;
  2. If it is offered for sale under the name of another food;
  3. If it is an imitation of another food for which a definition and standard of identity has been prescribed by regulations as provided by KRS 217.135 ; or if it is an imitation of another food that is not subject to subsection (7) of this section, unless its label bears in type of uniform size and prominence, the word, imitation, and, immediately thereafter, the name of the food imitated;
  4. If its container is so made, formed, or filled as to be misleading;
  5. If in package form, unless it bears a label containing:
    1. The name and place of business of the manufacturer, packer, or distributor;
    2. An accurate statement of the net quantity of the contents in terms of weight, measure, or numerical count, which statement shall be separately and accurately stated in a uniform location upon the principal display panel of the label; provided that reasonable variations shall be permitted, and exemptions as to small packages shall be established, by regulations prescribed by the secretary;
  6. If any word, statement, or other information required by or under authority of KRS 217.005 to 217.215 to appear on the label or labeling is not prominently placed thereon with such conspicuousness (as compared with other words, statements, designs, or devices, in the labeling) and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use;
  7. If it purports to be or is represented as a food for which a definition and standard of identity has been prescribed by regulations as provided by KRS 217.135 unless:
    1. It conforms to such definition and standard; and
    2. Its label bears the name of the food specified in the definition and standard, and insofar as may be required by such regulations, the common names of optional ingredients (other than spices, flavoring, and coloring) present in such food;
  8. If it purports to be or is represented as:
    1. A food for which a standard of quality has been prescribed by regulations as provided by KRS 217.135 and its quality falls below such standard unless its label bears, in such manner and form as such regulations specify, a statement that it falls below such standard; or
    2. A food for which a standard or standards of fill of container have been prescribed by regulation as provided by KRS 217.135 and it falls below the standard of fill of container applicable thereto, unless its label bears, in such manner and form as such regulations specify, a statement that it falls below such standard;
  9. If it is not subject to the provisions of subsection (7) of this section, unless it bears labeling clearly giving:
    1. The common or usual name of the food, if any there be; and
    2. In case it is fabricated from two (2) or more ingredients, the common or usual name of each such ingredient, except that spices, flavorings, and colorings, other than those sold as such, may be designated as spices, flavorings, and colorings, without naming each; provided that, to the extent that compliance with this subsection is impractical or results in deception or unfair competition, exemptions shall be established by regulations promulgated by the secretary;
  10. If it purports to be or is represented for special dietary uses, unless its label bears such information concerning its vitamin, mineral, and other dietary properties as the secretary determines to be, and by regulations prescribes as, necessary in order to fully inform purchasers as to its value for such uses;
  11. If it bears or contains any artificial flavoring, artificial coloring, or chemical preservative, unless it bears labeling stating that fact; provided that to the extent that compliance with the requirements of this subsection is impracticable, exemptions shall be established by regulations promulgated by the secretary;
  12. If it is a product intended as an ingredient of another food and when used according to the directions of the purveyor will result in the final food product being adulterated or misbranded;
  13. If it is a raw agricultural commodity which is the produce of the soil, bearing or containing a pesticide chemical applied after harvest, unless the shipping container of such commodity bears labeling which declares the presence of such chemical in or on such commodity and the common or usual name and the function of such chemical; provided, however, that no such declaration shall be required while such commodity, having been removed from the shipping container, is being held or displayed for sale at retail out of such container in accordance with the custom of the trade;
  14. If it is a color additive unless its packaging and labeling are in conformity with such packaging and labeling requirements applicable to such color additive prescribed under the provisions of the federal act; or
  15. If it purports to be or is represented as meat or a meat product and it contains any cultured animal tissue produced from in vitro animal cell cultures outside of the organism from which it is derived.

History. Enact. Acts 1960, ch. 247, § 4, effective June 16, 1960; 1974, ch. 74, Art. VI, § 107(22); 1978, ch. 292, § 3, effective June 17, 1978; 2019 ch. 42, § 1, effective June 27, 2019.

NOTES TO DECISIONS

Cited:

Commonwealth, Dep’t for Human Resources v. Kentucky Products, Inc., 616 S.W.2d 496, 1981 Ky. LEXIS 249 ( Ky. 1981 ).

217.037. Fair packaging and labeling.

Fair packaging and labeling provisions:

  1. All labels of foods and cosmetics, as defined by KRS 217.015 , shall conform with the requirements for the declaration of net quantity of contents of Section 4 of the Fair Packaging and Labeling Act (15 U.S.C. secs. 1451 et seq.) and the regulations promulgated pursuant thereto. Food and cosmetics exempted from the requirements of Section 4 of the Fair Packaging and Labeling Act shall also be exempt from this subsection;
  2. The label of any package of food which bears a representation as to the number of servings of such food contained in such package shall bear a statement of the net quantity (in terms of weight, measure, or numerical count) of each such serving;
  3. No person shall distribute or cause to be distributed in commerce any packaged food or cosmetic if any qualifying words or phrases appear in conjunction with the separate statement of the net quantity of contents. Supplemental statements of net quantity of contents shall not include any term qualifying a unit of weight, measure or count that tends to exaggerate the amount of food or cosmetic contained in the package;
  4. Whenever the secretary determines that regulations containing prohibitions or requirements other than those prescribed by this section are necessary to prevent the deception of consumers or to facilitate value comparisons as to any food or cosmetic, the secretary shall promulgate with respect to that food or cosmetic regulations effective to:
    1. Establish and define standards for the characterization of the size of a package enclosing any food or cosmetic which may be used to supplement the label statement of net quantity of contents of packages containing such food or cosmetic, but this paragraph shall not be construed as authorizing any limitation on the size, shape, weight, dimensions, or number of packages which may be used to enclose any food or cosmetics;
    2. Regulate the placement upon any package containing any food or cosmetic or upon any label affixed to such food or cosmetic, of any printed matter stating or representing by implication that such food or cosmetic is offered for retail sale at a price lower than the ordinary and customary retail sale price or that a retail sale price advantage is accorded to purchasers thereof by reason of the size of that package or the quantity of its contents;
    3. Require that the label on each package of food or cosmetic bear:
      1. The common or usual name of such food or cosmetic, if any; and
      2. In case such food or cosmetic consists of two (2) or more ingredients, the common or usual name of each such ingredient listed in order of decreasing predominance, but nothing in this paragraph shall be deemed to require that any trade secret be divulged; or
    4. Prevent the nonfunctional slack-fill of packages containing food or cosmetics;
    5. For the purpose of paragraph (d) of this subsection, a package shall be deemed to be nonfunctionally slack-filled if it is filled of substantially less than its capacity for reasons other than:
      1. Protection of the contents of such package; or
      2. The requirements of machines used for enclosing the contents in such package; provided, that the secretary may adopt any regulations promulgated to comply with the Fair Packaging and Labeling Act.

History. Enact. Acts 1978, ch. 292, § 5, effective June 17, 1978.

217.040. When drug deemed adulterated. [Repealed.]

Compiler’s Notes.

This section (2060a-5) was repealed by Acts 1960, ch. 247, § 24.

217.045. Unsafe food additives.

Any poisonous or deleterious substance added to any food except where such substance is required in the production thereof or cannot be avoided by good production or manufacturing practice shall be deemed to be unsafe for purposes of the application of KRS 217.025(1)(b), unless a tolerance for such substance has been prescribed under the federal act or the Federal Environmental Pesticide Control Act of 1972 and the quantity of such substance in or on the food is within the tolerance so prescribed or the substance has been exempted from the requirement of a tolerance under the provisions of the federal act or the Federal Environmental Pesticide Control Act of 1972.

History. Enact. Acts 1960, ch. 247, § 5, effective June 16, 1960; 1978, ch. 292, § 4, effective June 17, 1978.

Compiler’s Notes.

The Federal Environmental Pesticide Control Act of 1972 is compiled as 7 USCS § 136 et seq.

NOTES TO DECISIONS

Cited:

Commonwealth, Dep’t for Human Resources v. Kentucky Products, Inc., 616 S.W.2d 496, 1981 Ky. LEXIS 249 ( Ky. 1981 ).

217.050. When drug deemed misbranded. [Repealed.]

Compiler’s Notes.

This section (2060a-6) was repealed by Acts 1960, ch. 247, § 24.

217.055. When drug deemed adulterated.

A drug or device shall be deemed to be adulterated:

    1. If it consists in whole or in part of any filthy, putrid, or decomposed substance; or (1) (a) If it consists in whole or in part of any filthy, putrid, or decomposed substance; or
    2. If it has been produced, prepared, packed, or held under insanitary conditions whereby it may have been contaminated with filth or whereby it may have been rendered injurious to health; or
    3. If it is a drug and its container is composed in whole or in part of any poisonous or deleterious substance which may render the contents injurious to health; or
    4. If it is a drug and it bears or contains, for purposes of coloring only, a coal-tar color other than one from a batch certified under the authority of the federal act;
  1. If it purports to be or is represented as a drug the name of which is recognized in an official compendium, and its strength differs from, or its quality or purity falls below, the standard set forth in such compendium. Such determination as to strength, quality, or purity shall be made in accordance with the tests or methods of assay set forth in such compendium, or in the absence of or inadequacy of such tests or methods of assay, those prescribed under authority of the federal act. No drug defined in an official compendium shall be deemed to be adulterated under this subsection because it differs from the standard of strength, quality, or purity therefor set forth in such compendium, if its difference in strength, quality, or purity from such standard is plainly stated on its label. Whenever a drug is recognized in both the United States Pharmacopoeia and the Homeopathic Pharmacopoeia of the United States it shall be subject to the requirements of the United States Pharmacopoeia unless it is labeled and offered for sale as a homeopathic drug, in which case it shall be subject to the provisions of the Homeopathic Pharmacopoeia of the United States and not to those of the United States Pharmacopoeia;
  2. If it is not subject to the provisions of subsection (2) of this section and its strength differs from, or its purity or quality falls below, that which it purports or is represented to possess;
  3. If it is a drug and any substance has been:
    1. Mixed or packed therewith so as to reduce its quality or strength; or
    2. Substituted wholly or in part therefor.

History. Enact. Acts 1960, ch. 247, § 6, effective June 16, 1960.

NOTES TO DECISIONS

Cited:

Commonwealth, Dep’t for Human Resources v. Kentucky Products, Inc., 616 S.W.2d 496, 1981 Ky. LEXIS 249 ( Ky. 1981 ).

217.060. Manufacture or sale of adulterated or misbranded food or drug prohibited; exceptions. [Repealed.]

Compiler’s Notes.

This section (1905a-68, 2060, 2060a-2, 2060a-3) was repealed by Acts 1960, ch. 247, § 24.

217.065. When drug or device deemed misbranded.

Except for violations of KRS 218A.350 , a drug or device shall be deemed to be misbranded:

  1. If its labeling is false or misleading in any particular;
  2. If in package form unless it bears a label containing:
    1. The name and place of business of the manufacturer, packer, or distributor, except that, in the case of a prescription drug, it shall bear the name and place of business of the manufacturer, and the name and place of business of the packer, or distributor, if other than the manufacturer; and
    2. An accurate statement of the quantity of the contents in terms of weight, measure, or numerical count; provided that reasonable variations shall be permitted, and exemptions as to small packages shall be established, by regulations prescribed by the secretary;
  3. If any word, statement, or other information required by or under authority of KRS 217.005 to 217.215 to appear on the label or labeling is not prominently placed thereon with such conspicuousness (as compared with other words, statements, designs or devices, in the labeling) and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use;
  4. If it is for use by man and contains any quantity of the narcotic or hypnotic substance alpha-eucaine, barbituric acid, beta-eucaine, bromal, cannabis, carbromal, chloral, coca, cocaine, codeine, heroin, marijuana, synthetic drugs, salvia, morphine, opium, paraldehyde, peyote, or sulfonmethane, or any chemical derivative of such substance, which derivative has been by the secretary after investigation, found to be, and by regulations under KRS 217.005 to 217.215 designated as, habit forming; unless its label bears the name and quantity or proportion of such substance or derivative and in juxtaposition therewith the statement “Warning — May be habit-forming”;
  5. If it is a drug and is not designated solely by a name recognized in an official compendium unless its label bears:
    1. The common or usual name of the drug, if such there be; and
    2. In case it is fabricated from two (2) or more ingredients, the common or usual name of each active ingredient, including the kind and quantity or proportion of any alcohol, and also including whether active or not the name and quantity or proportion of any bromides, ether, chloroform, acetanilid, acetophenetidin, amidopyrine, antipyrine, atropine, hyoscine, hyoscyamine, arsenic, digitalis, digitalis glucosides, mercury, ouabain, strophanthin, strychnine, thyroid, or any derivative or preparation of any such substances, contained therein; provided that to the extent that compliance with this subsection is impracticable, exemptions shall be established by regulations promulgated by the secretary;
  6. Unless its labeling bears:
    1. Adequate directions for use; and
    2. Such adequate warnings against use in those pathological conditions or by children where its use may be dangerous to health, or against unsafe dosage or methods or duration of administration or application, in such manner and form, as are necessary for the protection of users; provided that where any requirement of subsection (a) of this subsection, as applied to any drug or device, is not necessary for the protection of the public health, the secretary shall promulgate regulations exempting such drug or device from such requirements;
  7. If it purports to be a drug the name of which is recognized in an official compendium, unless it is packaged and labeled as prescribed therein; provided that the method of packing may be modified with a consent of the cabinet. Whenever a drug is recognized in both the United States Pharmacopoeia and the Homeopathic Pharmacopoeia of the United States, it shall be subject to the requirements of the United States Pharmacopoeia with respect to packaging and labeling unless it is labeled and offered for sale as a homeopathic drug, in which case it shall be subject to the provisions of the Homeopathic Pharmacopoeia of the United States, and not to those of the United States Pharmacopoeia;
  8. If it has been found by the cabinet to be a drug liable to deterioration, unless it is packaged in such form and manner, and its label bears a statement of such precautions, as the secretary shall by administrative regulations require as necessary for the protection of public health. No such administrative regulation shall be established for any drug recognized in an official compendium until the secretary shall have informed the appropriate body charged with the revision of such compendium of the need for such packaging or labeling requirements and such body shall have failed within a reasonable time to prescribe such requirements;
    1. If it is a drug and its container is so made, formed, or filled as to be misleading; or (9) (a) If it is a drug and its container is so made, formed, or filled as to be misleading; or
    2. If it is an imitation of another drug; or
    3. If it is offered for sale under the name of another drug;
  9. If it is dangerous to health when used in the dosage, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof;
  10. If: (a) It is a drug intended for use by man which is a habit forming drug to which subsection (4) of this section applies; or because of its toxicity or other potentiality for harmful effect, or the method of its use, or the collateral measures necessary to its use is not safe for use except under the supervision of a practitioner, and is not dispensed upon a prescription unless prior to dispensing its label bears the statement “Caution: Federal law prohibits dispensing without prescription”; or

    (b) It is a drug or device and its label (as originally packed) directs that it is to be dispensed or sold only on prescription, unless it is dispensed or sold on a prescription of an authorized practitioner and its label (as dispensed) bears the name and place of business of the dispenser or seller, the serial number and date of such prescription, and the name of such licensed practitioner. Such prescriptions shall not be refilled except on the specific authorization of the prescribing practitioner; provided that where any requirement of this subsection, as applied to any drug or device, is not necessary for the protection of the public health, the secretary shall promulgate regulations exempting such drug or device from such requirement;

  11. A drug sold on a prescription of a practitioner (except a drug sold in the course of the conduct of a business of selling drugs pursuant to diagnosis by mail) shall be exempt from the requirements of this section if:
    1. Such practitioner is licensed by law to administer such drug; and
    2. Such drug bears a label containing the name and place of business of the seller, the serial number and date of such prescription, and the name of such practitioner.
  12. It is not the intention of subsection (2)(a) of this section as amended herein to require the name and place of business of the wholesaler to appear upon the label of the package unless otherwise required by this section.

History. Enact. Acts 1960, ch. 247, § 7, effective June 16, 1960; 1972, ch. 208, § 11; 1974, ch. 74, Art. VI, § 107(1), (11), (22); 1978, ch. 322, § 1, effective January 1, 1979; 1982, ch. 419, § 2, effective July 15, 1982; 2010, ch. 149, § 6, effective April 13, 2010; 2010, ch. 160, § 6, effective April 26, 2010; 2011, ch. 45, § 5, effective March 16, 2011; 2012, ch. 108, § 2, effective April 11, 2012.

NOTES TO DECISIONS

Cited:

Commonwealth, Dep’t for Human Resources v. Kentucky Products, Inc., 616 S.W.2d 496, 1981 Ky. LEXIS 249 ( Ky. 1981 ).

Opinions of Attorney General.

The distribution and sale of packages of birth control pills marked “clinic use only,” in a nonclinical setting, makes them misbranded drugs as defined in subdivision (1), because these drugs are being distributed and sold in a manner contrary to what appears on the label. OAG 83-333 .

The sale, delivery, holding or offering for sale of drugs marked “sample,” “not for sale,” “physician pack,” or similar wording, makes the drugs misbranded because they would be distributed and sold in a manner contrary to what appears on the label. OAG 83-452 .

If drugs labelled with such statements as “clinic pack,” “clinic package-not for retail pharmacy sale,” or similar wording are distributed to an ultimate consumer, and in the event the labelling misleads the ultimate consumer in any respect, there is a violation of subsection (1) of this section. Further, this practice may also constitute a violation of KRS 517.020(1)(e), as well as a violation of the Consumer Protection Act, KRS Chapter 367, and more specifically KRS 367.170. OAG 85-114 .

A pharmacist may not legally fill a prescription (written or oral) from a physician’s assistant for continuation of medications originally prescribed by the supervising physician; and a pharmacist may not legally refill a prescription of a licensed practitioner pursuant to authorization of a physician’s assistant. OAG 92-37 .

A prescribing practitioner, in his capacity as supervising physician of a physician’s assistant, may allow his physician’s assistant to communicate the prescribing practitioner’s specific authorization of previously unauthorized refills to a pharmacist. If that is done, however, the written or oral communication from the physician’s assistant should definitely include the statement that the authorization is specifically that of the prescribing practitioner. The pharmacist receiving such a communication must decide for himself, based upon his knowledge of the drug, the physician’s assistant, the patient and the prescribing practitioner, whether any further verification is desirable with regard to whether the prescribing practitioner has actually specifically authorized the refill(s). OAG 92-37 .

Research References and Practice Aids

Kentucky Law Journal.

Note: Making Changes: Generic Drug Labeling and the Case Against Federal Preemption, 98 Ky. L.J. 623 (2009/2010).

217.070. Food and drug samples to be analyzed by state board of health. [Repealed.]

Compiler’s Notes.

This section (2060a-7) was repealed by Acts 1960, ch. 247, § 24.

217.075. Restrictions on handling of new drugs.

  1. No person shall sell, deliver, offer for sale, hold for sale, or give away any new drug unless:
    1. An application with respect thereto has become effective under the federal act; or
    2. When not subject to the federal act unless such drug has been tested and has not been found to be unsafe for use under the conditions prescribed, recommended, or suggested in the labeling thereof, and prior to selling or offering for sale such drug, there has been filed with the cabinet an application setting forth: full reports of investigations which have been made to show whether or not such drug is safe for use; a full list of the articles used as components of such drug; a full statement of the composition of such drug; a full description of the methods used in, and the facilities and controls used for, the manufacture, processing, and packing of such drug; such samples of such drug and of the articles used as components thereof as the cabinet may require; and specimens of the labeling proposed to be used for such drug.
  2. An application provided for in subsection (1)(b) of this section shall become effective on the sixtieth day after the filing thereof, except that if the cabinet finds after due notice to the applicant and giving him an opportunity for a hearing, conducted in accordance with KRS Chapter 13B, that the drug is not safe for use under the conditions prescribed, recommended, or suggested in the proposed labeling thereof, it shall, prior to the effective date of the application, issue an order refusing to permit the application to become effective.
  3. This section shall not apply:
    1. To a drug intended solely for investigational use by experts qualified by scientific training and experience to investigate the safety in drugs provided the drug is plainly labeled “For investigational use only”; or
    2. To a drug sold in the state at any time prior to the enactment of KRS 217.005 to 217.215 or introduced into interstate commerce at any time prior to the enactment of the federal act; or
    3. To any drug which is licensed under the Virus, Serum, and Toxin Act of July 1, 1902, and any amendments thereto. (42 U.S.C. secs. 262 et seq., and amendments thereto).
  4. An order refusing to permit an application under this section to become effective may be revoked by the cabinet.

History. Enact. Acts 1960, ch. 247, § 8, effective June 16, 1960; 1996, ch. 318, § 122, effective July 15, 1996.

NOTES TO DECISIONS

Cited:

Commonwealth, Dep’t for Human Resources v. Kentucky Products, Inc., 616 S.W.2d 496, 1981 Ky. LEXIS 249 ( Ky. 1981 ).

Opinions of Attorney General.

It is not illegal for a Kentucky resident to go to Indiana, obtain laetrile from a pharmacy there and bring the drug back into Kentucky and use it himself; however, if the person returning with the drug does not use it himself but instead makes a delivery or a sale thereof he would violate this section. OAG 77-303 .

217.080. Methods for analysis of samples; fixing standards for foods and drugs; committee to make rules for drugs. [Repealed.]

Compiler’s Notes.

This section (2060a-8) was repealed by Acts 1960, ch. 247, § 24.

217.085. When cosmetic deemed adulterated.

A cosmetic shall be deemed to be adulterated:

  1. If it bears or contains any poisonous or deleterious substance which may render it injurious to users under the conditions of use prescribed in the labeling or advertisement thereof, or under such conditions of use as are customary or usual; provided that this provision shall not apply to coal-tar hair dye, the label of which bears the following legend conspicuously displayed thereon: “Caution — This product contains ingredients which may cause skin irritation on certain individuals and a preliminary test according to accompanying directions should first be made. This product must not be used for dyeing the eyelashes or eyebrows; to do so may cause blindness,” and the labeling of which bears adequate directions for such preliminary testing. For the purpose of this subsection and subsection (5) of this section, the term “hair dye” shall not include eyelash dyes or eyebrow dyes;
  2. If it consists in whole or in part of any filthy, putrid or decomposed substance;
  3. If it has been produced, prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health;
  4. If its container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health;
  5. If it is not a hair dye and it bears or contains a coal-tar color other than one from a batch which has been certified under authority of the federal act.

History. Enact. Acts 1960, ch. 247, § 9, effective June 16, 1960.

NOTES TO DECISIONS

Cited:

Commonwealth, Dep’t for Human Resources v. Kentucky Products, Inc., 616 S.W.2d 496, 1981 Ky. LEXIS 249 ( Ky. 1981 ).

217.090. Fees for examination of food and drug samples and labels. [Repealed.]

Compiler’s Notes.

This section (2060a-14) was repealed by Acts 1960, ch. 247, § 24.

217.095. When cosmetic deemed misbranded.

A cosmetic shall be deemed to be misbranded:

  1. If its labeling is false or misleading in any particular or if its labeling or packaging fails to conform with the requirements of KRS 217.037 ;
  2. If in package form unless it bears a label containing:
    1. The name and place of business of the manufacturer, packer, or distributor; and
    2. An accurate statement of the quantity of the contents in terms of weight, measure, or numerical count, which statement shall be separately and accurately stated in a uniform location upon the principal display panel of the label; provided that reasonable variations shall be permitted, and exemptions as to small packages shall be established by regulations prescribed by the secretary;
  3. If any word, statement, or other information required by or under authority of KRS 217.005 to 217.215 to appear on the label or labeling is not prominently placed thereon with such conspicuousness (as compared with other words, statements, designs, or devices, in the labeling) and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use;
  4. If its container is so made, formed or filled as to be misleading;
  5. If it is a color additive, unless its packaging and labeling are in conformity with such packaging and labeling requirements applicable to such color additive prescribed under the provisions of the federal act. This subsection shall not apply to packages of color additives which, with respect to their use for cosmetics, are marketed and intended for use only in or on hair dyes as defined in KRS 217.085 ;
  6. A cosmetic which is, in accordance with the practice of the trade, to be processed, labeled or repacked in substantial quantities at an establishment other than the establishment where it was originally processed or packed, is exempted from the affirmative labeling requirements of KRS 217.037 while it is in transit in commerce from the one establishment to the other, if such transit is made in good faith for such completion purposes only; but it is otherwise subject to all applicable provisions of KRS 217.005 to 217.215 .

History. Enact. Acts 1960, ch. 247, § 10, effective June 16, 1960; 1974, ch. 74, Art. VI, § 107(22); 1978, ch. 292, § 6, effective June 17, 1978.

NOTES TO DECISIONS

Cited:

Commonwealth, Dep’t for Human Resources v. Kentucky Products, Inc., 616 S.W.2d 496, 1981 Ky. LEXIS 249 ( Ky. 1981 ).

217.100. Reports and bulletins on adulterated food and drugs. [Repealed.]

Compiler’s Notes.

This section (2060a-10) was repealed by Acts 1960, ch. 247, § 24.

217.105. When advertising deemed false.

  1. An advertisement of a food, drug, device, or cosmetic shall be deemed to be false if it is false or misleading in any particular.
  2. For the purpose of KRS 217.005 to 217.215 the advertisement of a drug or device representing it to have any effect in albuminuria, appendicitis, arteriosclerosis, blood poison, bone disease, Bright’s disease, cancer, carbuncles, cholecytitis, diabetes, diphtheria, dropsy, erysipelas, gallstones, heart and vascular diseases, high blood pressure, mastoiditis, measles, meningitis, mumps, nephritis, otitis media, paralysis, pneumonia, poliomyelitis (infantile paralysis), prostate gland disorders, pyelitis, scarlet fever, sexual impotence, sinus infection, smallpox, tuberculosis, tumors, typhoid, uremia, venereal disease, shall also be deemed to be false, except that no advertisement not in violation of subsection (1) of this section shall be deemed to be false under this subsection if it is disseminated only to practitioners or appears only in the scientific periodicals of these practitioners, or is disseminated only for the purpose of public health education by persons not commercially interested, directly or indirectly, in the sale of such drugs or devices; provided that whenever the secretary determines that an advance in medical science has made any type of self-medication safe as to any of the diseases named above, the secretary shall by regulation authorize the advertisement of drugs having curative or therapeutic effect for such disease, subject to such conditions and restrictions as the secretary may deem necessary in the interests of public health; provided that this subsection shall not be construed as indicating that self-medication for diseases other than those named herein is safe or efficacious.

History. Enact. Acts 1960, ch. 247, § 11, effective June 16, 1960; 1974, ch. 74, Art. VI, § 107(22).

NOTES TO DECISIONS

Cited:

Commonwealth, Dep’t for Human Resources v. Kentucky Products, Inc., 616 S.W.2d 496, 1981 Ky. LEXIS 249 ( Ky. 1981 ).

Research References and Practice Aids

Cross-References.

False and bait advertising, KRS 517.030 , 517.040 .

217.110. Food and drug inspectors; powers; qualifications; how appointed. [Repealed.]

Compiler’s Notes.

This section (2060a-7, 2060a-19) was repealed by Acts 1960, ch. 247, § 24.

217.115. Detention or quarantine of articles that violate KRS 217.005 to 217.215.

  1. Whenever a duly authorized agent of the cabinet finds or has probable cause to believe, that any food, drug, device, or cosmetic is adulterated, or misbranded within the meaning of KRS 217.005 to 217.215 , he shall affix to such article a tag or other appropriate marking, giving notice that such article is, or is suspected of being, adulterated or misbranded and has been detained or quarantined and warning all persons not to remove or dispose of such article by sale or otherwise until permission for removal or disposal is given by such agent or the court. It shall be unlawful for any person to remove or dispose of such detained or quarantined article by sale or otherwise without such permission.
  2. When an article detained or quarantined under subsection (1) of this section has been found by such agent to be adulterated, or misbranded, he shall petition the judge of the District Court in whose jurisdiction the article is detained or quarantined for an order for condemnation of such article; provided that nothing in this section shall require that the cabinet or its agent shall go to court if destruction of the quarantined article is accomplished by agreement made in writing with the owner of the property. When such agent has found that an article so detained or quarantined is not adulterated or misbranded, he shall remove the tag or other marking.
  3. If the court finds that a detained or quarantined article is adulterated or misbranded, such article shall, after entry of the order, be destroyed at the expense of the claimant thereof, under the supervision of such agent, and all court costs and fees, and storage and other proper expenses, shall be taxed against the claimant of such article or his agent; provided that when the adulteration or misbranding can be corrected by proper labeling or processing of the article, the court, after entry of the order and after such costs, fees, and expenses have been paid and a good and sufficient bond, conditioned that such article shall be so labeled or processed, has been executed, may by order direct that such article be delivered to the claimant thereof for such labeling or processing under the supervision of an agent of the cabinet. The expense of such supervision shall be paid by the claimant. Such bond shall be returned to the claimant of the article on representation to the court by the cabinet that the article is no longer in violation of KRS 217.005 to 217.215 , and that the expenses of such supervision have been paid.
  4. Whenever the cabinet or any of its authorized agents, after a state of emergency has been declared, shall find in any room, building, vehicle of transportation, or other structure, any food, drug, cosmetic, or device, which is unsound or which contains any filthy, decomposed, or putrid substance, or which may be poisonous or deleterious to health or otherwise unsafe, the same being hereby declared to be a nuisance, the cabinet or its authorized agent shall forthwith condemn or destroy the same or in other manner render the same unfit for human use.

History. Enact. Acts 1960, ch. 247, § 12, effective June 16, 1960; 1976 (Ex. Sess.), ch. 14, § 206, effective January 2, 1978.

NOTES TO DECISIONS

1.Jurisdiction.

Where Department of Human Resources (now Cabinet for Health and Family Services) sought injunction against food products company to prevent the production, packing or sale of its food until unsanitary conditions were corrected, the Circuit Court properly assumed jurisdiction since it had equity jurisdiction and thus could exercise the provisions of subsection (2) of this section to bring the action to a final and full conclusion, even though the action would have properly been disposed of under KRS 217.025 , since any action in the District Court under this section would be entitled to a constitutional guarantee of a right of appeal to the Circuit Court under Const., § 115, and consequently on appeal the Circuit Court would unquestionably have jurisdiction to provide the remedy set forth in subsection (2) of this section. Commonwealth, Dep't for Human Resources v. Kentucky Products, Inc., 616 S.W.2d 496, 1981 Ky. LEXIS 249 ( Ky. 1981 ).

Opinions of Attorney General.

There is only one situation where seizure of misbranded drugs can take place without intervention of the courts, and that is where seizure of the questioned article is accomplished by agreement made in writing with the owner of the property. OAG 83-333 .

217.120. Assistance and instruction of local health officers. [Repealed.]

Compiler’s Notes.

This section (2060a-15) was repealed by Acts 1960, ch. 247, § 24.

217.125. Authority of secretary and cabinet to promulgate administrative regulations — Permits required for food establishment, service, processing, storage, and distribution operations — Fees.

  1. The authority to promulgate regulations for the efficient administration and enforcement of KRS 217.005 to 217.215 is hereby vested in the secretary. The secretary may make the regulations promulgated under KRS 217.005 to 217.215 consistent with those promulgated under the federal act and the Fair Packaging and Labeling Act. Regulations promulgated may require permits to operate and include provisions for regulating the issuance, suspension, and reinstatement of permits. The authority to promulgate regulations pursuant to KRS 217.005 to 217.205 is restricted to the Cabinet for Health and Family Services.
  2. No person shall operate a food processing establishment, food storage warehouse, salvage distributor, or salvage processing plant without having obtained an annual permit to operate from the cabinet. An application for the permit to operate shall be made to the cabinet upon forms provided by it and shall be accompanied by the required fee as shall be provided by regulation. The secretary shall promulgate administrative regulations to establish a fee schedule not to exceed costs of the program to the cabinet. Fees collected by the cabinet shall be deposited in the State Treasury and credited to a revolving fund account for use by the cabinet in carrying out the provisions of KRS 217.025 to 217.390 and the regulations adopted by the secretary pursuant thereto. The balance of the account shall lapse to the general fund at the end of each biennium.
  3. No person shall operate a retail food establishment without having obtained a permit to operate from the cabinet. An application for a permit to operate any retail food establishment shall be made to the cabinet upon forms provided by it and shall contain the information the cabinet may reasonably require.
    1. Except as otherwise provided in subsection (11) of this section, each application for a temporary food service establishment or for an annual permit to operate a retail food establishment shall be accompanied by the required fee. The secretary shall promulgate administrative regulations to establish a fee schedule not to exceed costs to the cabinet. (4) (a) Except as otherwise provided in subsection (11) of this section, each application for a temporary food service establishment or for an annual permit to operate a retail food establishment shall be accompanied by the required fee. The secretary shall promulgate administrative regulations to establish a fee schedule not to exceed costs to the cabinet.
    2. The total fees for permitting and inspection:
      1. Shall be the total of the operational and administrative costs of the programs to the cabinet and to agencies as defined in KRS 211.185 ;
      2. Beginning on March 17, 2020, until December 31, 2020, shall not increase more than twenty-five percent (25%) of the fee amount on March 17, 2020; and
      3. Beginning on or after January 1, 2021, shall not increase more than five percent (5%) for each year thereafter.
  4. Except as otherwise provided in subsection (11) of this section, each application for a farmers market temporary food service establishment shall be accompanied by the required fee of at least fifty dollars ($50). The secretary shall establish a fee schedule by promulgation of administrative regulation. Fees collected by the cabinet shall be used to carry out duties related to farmers market temporary food service establishments, including but not limited to inspections and the issuance of permits.
  5. An applicant for a permit to operate a farmers market temporary food service establishment must provide documentation of successful completion of a food safety training program offered by either the state, a local health department, or other entity approved by the cabinet to conduct food safety training. Each certification of food safety training shall expire after a period of twenty-four (24) months from the date of issuance. Permits issued shall be posted in a conspicuous place in the establishment, and a person who has completed the food safety training for farmers market temporary food service establishments shall be present at all times during the operation of the establishment.
  6. Upon expiration of a temporary food service establishment permit, any subsequent permits shall not be issued to the same operator to operate at the same location until a period of thirty (30) days has elapsed.
  7. Upon receipt of an application for a permit to operate a food processing establishment, food storage warehouse, salvage distributor, or salvage processing plant or a retail food establishment accompanied by the required fee, the cabinet shall issue a permit if the establishment meets the requirements of KRS 217.005 to 217.215 and regulations adopted by the cabinet. Retail food establishments holding a valid and effective permit on January 1, 1973, even though not fully meeting the construction requirements of KRS 217.005 to 217.215 and the regulations adopted pursuant thereto, may continue to be eligible for permit renewal if in good repair and capable of being maintained in a safe and sanitary manner.
  8. Permits shall not be issued to operate a temporary food service establishment and a farmers market temporary food service establishment simultaneously at the same location and by the same operator.
  9. In all instances of permit issuance for either a temporary food service establishment permit or a farmers market temporary food service establishment permit, any subsequent permits shall not be issued until a period of thirty (30) days has elapsed.
  10. Private, parochial, and public school cafeterias or lunchroom facilities through the twelfth grade, charitable food kitchens, and all facilities operated by the Cabinet for Health and Family Services or Department of Corrections shall be exempt from the payment of fees, but shall comply with all other provisions of KRS 217.005 to 217.215 and the state retail food establishment code. For this subsection, the term “charitable food kitchens” means a not-for-profit, benevolent food service establishment where more than one-half (1/2) of the employees are volunteers.
  11. Each annual permit to operate a food processing establishment, food storage warehouse, salvage distributor, or salvage processing plant or a retail food establishment, unless previously suspended or revoked, shall expire on December 31 following its date of issuance, and be renewable annually upon application accompanied by the required fee, except as otherwise provided in subsection (11) of this section, and if the establishment is in compliance with KRS 217.005 to 217.215 and regulations of the cabinet.
  12. Each permit to operate a food processing establishment, food storage warehouse, salvage distributor, salvage processing plant, or a retail food establishment shall be issued only for the premises and person named in the application and shall not be transferable. Permits issued shall be posted in a conspicuous place in the establishment.

History. Enact. Acts 1960, ch. 247, § 13, effective June 16, 1960; 1974, ch. 74, Art. VI, § 107 (22); 1978, ch. 292, § 7, effective June 17, 1978; 1982, ch. 247, § 11, effective July 15, 1982; 1990, ch. 458, § 2, effective July 13, 1990; 1992, ch. 211, § 79, effective July 14, 1992; 1998, ch. 7, § 2, effective February 19, 1998, retroactive to January 1, 1998; 1998, ch. 426, § 457, effective July 15, 1998; 2005, ch. 99, § 62, effective June 20, 2005; 2007, ch. 97, § 2, effective March 23, 2007; 2018 ch. 136, § 12, effective July 1, 2019; 2020 ch. 21, § 8, effective March 17, 2020.

Compiler's Notes.

The federal Fair Packaging and Labeling Act, referred to in subsection (1), is compiled as 15 USCS § 1451 et seq.

Section 3 of Acts 1998, ch. 7, reads: “This Act is retroactive to January 1, 1998.”

NOTES TO DECISIONS

Cited:

Dumon v. Commonwealth, 488 S.W.2d 343, 1972 Ky. LEXIS 40 ( Ky. 1972 ), cert. denied, Dumon v. Kentucky, 412 U.S. 928, 93 S. Ct. 2752, 37 L. Ed. 2d 156, 1973 U.S. LEXIS 2199 (1973), cert. denied, Dumon v. Kentucky, 412 U.S. 928, 93 S. Ct. 2752, 37 L. Ed. 2d 156, 1973 U.S. LEXIS 2199 (1973).

Research References and Practice Aids

Cross-References.

Administrative regulations, KRS ch. 13A.

217.1255. Prohibition against requiring permit for or inspecting warehouses containing alcoholic beverages.

Nothing in this chapter shall be construed as requiring a permit for the operation of warehouses containing alcoholic beverages as defined in KRS 241.010 or as authorizing the inspection of such warehouses by the cabinet.

History. Enact. Acts 1992, ch. 37, § 1, effective July 14, 1992.

217.126. Denial, suspension, or revocation of permit.

  1. The cabinet shall suspend the permit to operate a retail food establishment immediately upon notice to the permit holder without a conference when:
    1. An inspection of an establishment reveals that any of the following conditions are present:
      1. Sewage is standing in the food preparation, food storage, utensil washing, or storage areas;
      2. Gross rodent or insect activity exists resulting in contamination of food or food equipment;
      3. The water supply is contaminated or cut off with no approved alternative plan;
      4. The establishment is operating in blatant disregard for safe cooking or holding temperatures for potentially hazardous foods; or
      5. There is an infiltration of toxic or noxious gases, dust, or other irritants or contaminants causing apparent illness of employees or patrons; or
    2. The permit holder or authorized agent has interfered, as defined in KRS 217.015(25), with the cabinet in the performance of its duties, after its agents have duly and officially identified themselves and the interference has been verified by the inspector’s supervisor;
    3. An inspection of an establishment reveals a rating score of less than sixty (60); or
    4. An inspection reveals that an imminent health hazard as defined in KRS 217.015(24) still exists and the hazard has been verified by the agent’s supervisor.
  2. In all other instances not covered by subsection (1) of this section, after notice to the applicant or holder of a permit to operate and after an opportunity for a hearing as provided by administrative regulations of the secretary, the cabinet or local health department concerned may deny, suspend, or revoke a permit to operate in any case where it finds that there has been a failure to comply with the requirements of KRS 217.005 to 217.215 or the administrative regulations of the secretary. Any administrative hearing conducted under this section shall be conducted in accordance with KRS Chapter 13B.

History. Enact. Acts 1990, ch. 458, § 3, effective July 13, 1990; 1996, ch. 318, § 123, effective July 15, 1996; 1998, ch. 297, § 2, effective July 15, 1998.

217.127. Regulations — State retail food code — Donation of food.

  1. The secretary shall adopt regulations for the effective administration and enforcement of KRS 217.005 to 217.215 .
  2. The secretary shall adopt a state retail food code which shall include, among other things, provisions for regulating the issuance, suspension, and revocation of permits to operate; submission of plans for construction and equipment layout including plumbing, lighting, ventilation, water supply, sewage disposal, and other facilities; food supply source and protection; health, disease control and cleanliness of personnel; design, construction, installation, and cleanliness of equipment and utensils; toilet and hand-washing facilities; solid waste disposal and vermin control; and any other matters deemed necessary to insure a safe and sanitary operation of a retail food establishment. Standards for construction, plumbing, lighting, and ventilation of fixed retail food establishments shall be effective only if they are approved by the Board of Housing, Buildings and Construction and are included in the Uniform State Building Code, or if they conform to the State Plumbing Code in the case of plumbing fixtures. Any review of plans for construction, plumbing, lighting, and ventilation required before construction of a fixed retail food establishment shall be conducted by the Department of Housing, Buildings and Construction or authorized local building official pursuant to KRS Chapter 198B.
  3. The donation of safe and apparently wholesome food by a retail food establishment or any other entity regulated under subsections (1) and (2) of this section shall be exempt from any further inspection or regulation if the donated food has been inspected under subsections (1) and (2) of this section.

History. Enact. Acts 1990, ch. 458, § 4, effective July 13, 1990; 2006, ch. 64, § 1, effective July 12, 2006; 2010, ch. 24, § 321, effective July 15, 2010.

Research References and Practice Aids

Cross-References.

Administrative regulations, KRS Ch. 13A.

217.128. Enforcement of state fire regulations.

The state fire marshal or other duly authorized agents or representatives or other authorized agents pursuant to KRS Chapter 227 shall administer and enforce all state fire regulations, laws, standards of safety, and regulations adopted by the commissioner of housing, buildings and construction relating to retail food establishments.

History. Enact. Acts 1990, ch. 458, § 5, effective July 13, 1990; 2010, ch. 24, § 322, effective July 15, 2010.

217.130. Prosecution of violators. [Repealed.]

Compiler’s Notes.

This section (2060a-9) was repealed by Acts 1960, ch. 247, § 24.

217.135. Setting food standards by regulation.

Whenever in the judgment of the secretary such action will promote honesty and fair dealing in the interest of consumers, the secretary may promulgate regulations fixing and establishing for any food or class of food: a reasonable definition and standard of identity, a reasonable standard of quality, and fill of container. In prescribing a definition and standard of identity for any food or class of food in which optional ingredients are permitted, the secretary shall, for the purpose of promoting honesty and fair dealing in the interest of consumers, designate the optional ingredients which shall be named on the label. The definitions and standards so promulgated shall conform so far as practicable to the definitions and standards promulgated under authority of the federal act, the Federal Meat Inspection Act, or the Federal Poultry Products Inspection Act.

History. Enact. Acts 1960, ch. 247, § 14, effective June 16, 1960; 1974, ch. 74, Art. VI, § 107(22).

217.136. Home-based food processors — Exemption from permit requirement and fair packaging and labeling laws — Production, labeling, and sales of home-processed food products — Inspections — Registration system.

  1. A home-based processor shall be exempt from KRS 217.035 and 217.037 if the following conditions are met:
    1. All finished product containers are clean, sanitary, and properly labeled pursuant to subsection (3) of this section;
    2. All home-processed foods produced under this exemption are neither adulterated nor misbranded pursuant to subsection (4) of this section; and
    3. All glass containers for jams, jellies, preserves, fruit butter, and similar products are provided with suitable rigid metal covers.
  2. A home-based processor shall not produce or process for sale acid foods, acidified food products, formulated acid food products, or low-acid canned foods.
  3. A home-based processor shall label each of its food products and include the following information on the label of each of its food products:
    1. The name and address of the home-based processing operation;
    2. The common or usual name of the food product;
    3. The ingredients of the food product, in descending order of predominance by weight;
    4. The net weight and volume of the food product by standard measure, or numerical count;
    5. The following statement in ten (10) point type: “This product is home-produced and processed”; and
    6. The date the product was processed.
  4. Food products identified in KRS 217.015(56) and not labeled in accordance with subsection (3) of this section are deemed misbranded.
  5. Food products identified in KRS 217.015(56) and produced, processed, and labeled in accordance with subsection (3) of this section are acceptable food products that may only be offered for sale directly to consumers within this state, including from the home-based processor’s home, whether by pick-up or delivery, at a market, roadside stand, community event, or online. These food products may be used in preparing and serving food.
  6. Food products identified in KRS 217.015(56) and labeled in accordance with subsection (3) of this section shall not be required to be tested in determining whether or not the food product is an acid food, acidified food product, formulated acid food product, or low-acid food.
  7. The processing facilities of a home-based processor may be inspected annually by the cabinet.
  8. A home-based processor shall be subject to food sampling and inspection if it is determined that its food product is misbranded pursuant to subsection (4) of this section or adulterated, or if a consumer complaint has been received.
  9. If the cabinet has reason to believe that an imminent health hazard exists it may invoke cessation of production until it deems that the hazardous situation has been addressed to the satisfaction of the cabinet.
  10. The cabinet shall promulgate administrative regulations to further delineate which food products are subject to the definition of home-based processor, as defined in KRS 217.015(56).
  11. No later than January 1, 2020, the cabinet shall develop and implement a registration system for home-based processors.
  12. Beginning January 1, 2020, a home-based processor shall be registered with the cabinet and include the following information:
    1. The name of the home-based processor and the physical address where production or processing will occur; and
    2. A listing of the food products to be produced or processed.

History. Enact. Acts 2003, ch. 42, § 2, effective June 24, 2003; 2018 ch. 77, § 2, effective July 14, 2018; 2019 ch. 181, § 1, effective March 26, 2019.

217.137. Administrative regulations on home-based microprocessors.

  1. The secretary shall promulgate administrative regulations to accommodate the specific circumstances of home-based microprocessors. In order to protect public health while encouraging the marketing of home-processed foods, the administrative regulations shall include, at a minimum, standards for:
    1. Installation, design, location, and maintenance of toilet rooms;
    2. Installation and maintenance of hand-washing facilities;
    3. Manual and mechanical cleaning and sanitizing processes;
    4. Installation and location of equipment;
    5. Construction and covering of floors; and
    6. Construction, materials, and maintenance of walls and ceilings.
  2. Food products that are produced or processed by a home-based microprocessor and in compliance with administrative regulations promulgated pursuant to subsection (1) of this section are acceptable food products that may only be offered for sale by farmers markets, certified roadside stands, or on the processor’s farm. These food products may be used in preparing and serving food.
  3. The cabinet shall promulgate administrative regulations to further delineate which food products are subject to the definition of home-based microprocessor, as defined in KRS 217.015(57).

History. Enact. Acts 2003, ch. 42, § 3, effective June 24, 2003; 2019 ch. 181, § 2, effective March 26, 2019.

217.138. Kentucky Cooperative Extension Service to administer home-based microprocessor program — Certification by cabinet.

  1. The Kentucky Cooperative Extension Service shall develop, implement, and administer a program to train home-based microprocessors or personnel in compliance with 21 C.F.R. sec. 114.10.
  2. The cabinet shall evaluate and certify home-based microprocessors or personnel who have completed the pilot microprocessing program or the microprocessing program.
  3. The cabinet shall by June 30, 2003:
    1. Establish certification terms, conditions, and length of time the certification is valid;
    2. Establish terms, conditions, and standards for recertification;
    3. Establish fees for certification and recertification; and
    4. Develop a certification document.
  4. The cabinet and the Kentucky Cooperative Extension Service shall by June 30, 2003:
    1. Develop an examination document;
    2. Establish examination subject matter;
    3. Establish criteria for program completion; and
    4. Establish fees for the pilot microprocessing program and the microprocessing program.
  5. The certification document shall be made in triplicate, with one (1) copy given to the home-based microprocessor or personnel, one (1) copy given to the Kentucky Cooperative Extension Service, and one (1) copy given to the cabinet.
  6. Upon completion of the program, home-based microprocessors and personnel shall be deemed to be certified and to have met the training requirements pursuant to 21 C.F.R. sec. 114.10.

History. Enact. Acts 2003, ch. 42, § 4, effective June 24, 2003.

217.139. Pilot microprocessing program.

  1. The Kentucky Cooperative Extension Service shall establish and administer a pilot microprocessing program to train home-based microprocessors and personnel for supervising or giving instruction in food-handling techniques, food-protection principles, personal hygiene and plant sanitation practices, pH controls, and critical factors in acidification.
  2. The pilot microprocessing program shall be established by August 1, 2003, and implemented no later than September 1, 2003. There shall be no less than four (4) program workshops offered to home-based microprocessors and personnel, and each shall be held in a separate and distinct geographical location within the state.

History. Enact. Acts 2003, ch. 42, § 5, effective June 24, 2003.

217.140. Labeling of food. [Repealed.]

Compiler’s Notes.

This section (2060a-3) was repealed by Acts 1960, ch. 247, § 24.

217.145. When additives deemed unsafe.

  1. A food additive shall with respect to any particular use or intended use of such additive, be deemed to be unsafe within the meaning of KRS 217.025(1)(b) and 217.045 , unless it and its use or intended use conform to the terms of an exemption as provided under the federal act, or, a regulation issued under the federal act prescribing the conditions under which such additive may be safely used.
  2. Any poisonous or deleterious pesticide chemical, or any pesticide chemical which is not recognized by the cabinet as safe for use, added to a raw agricultural commodity, shall be deemed unsafe within the meaning of KRS 217.025(1)(b), unless a tolerance for such pesticide chemical in or on the raw agricultural commodity has been prescribed under the federal act or the Federal Environmental Pesticide Control Act of 1972 and the quantity of such pesticide chemical in or on the raw agricultural commodity is within the tolerance so prescribed or the pesticide chemical has been exempted from the requirement of a tolerance under provisions of the federal act or the Federal Environmental Pesticide Control Act of 1972.
  3. A color additive shall with respect to any particular use (for which it is being used or intended to be used or is represented as suitable) in or on food or drugs or cosmetics, be deemed unsafe for the purposes of the application of KRS 217.025(4), 217.055(1)(d), or 217.085(5), as the case may be, unless there is in effect, and such color additive and such use are in conformity with a regulation as provided under the federal act, or such color additive and such use conform to the terms of an exception under the federal act.

History. Enact. Acts 1960, ch. 247, § 15, effective June 16, 1960; 1978, ch. 292, § 8, effective June 17, 1978.

Compiler’s Notes.

The Federal Environmental Pesticide Control Act of 1972, referred to in subsection (2), is compiled as 7 USCS § 136 et seq.

217.150. Manufacturer to file statement as to product and copy of labels. [Repealed.]

Compiler’s Notes.

This section (2060a-16) was repealed by Acts 1960, ch. 247, § 24.

217.155. Cabinet’s right of inspection and to carry out statutory provisions and regulations through local health departments — Requirement that drug inspector be a pharmacist.

  1. The cabinet or its duly authorized agent shall have free access at all reasonable times to any factory, warehouse, or establishment in which foods, drugs, devices, or cosmetics are manufactured, processed, packed, or held for sale, or are held after receipt in commerce, or to enter any vehicle being used to transport or hold the foods, drugs, devices, or cosmetics in commerce, for the purpose:
    1. Of inspecting the factory, warehouse, establishment, or vehicle and all pertinent equipment, finished and unfinished materials, containers, and labeling thereon, to determine if any of the provisions of KRS 217.005 to 217.215 are being violated;
    2. Of securing samples or specimens of any food, drug, device, or cosmetic after paying or offering to pay for the sample. The cabinet shall make or cause to be made examinations of samples secured under the provisions of this section to determine whether or not any provision of KRS 217.005 to 217.215 is being violated; and
    3. Of examining or reproducing books, papers, documents, or other evidence pertaining to the foods, drugs, cosmetics, or devices.
  2. Any inspector appointed for the purpose of administering and carrying out the provisions of KRS 217.005 to 217.215 insofar as they relate to drugs in a retail pharmacy shall be a registered pharmacist and a graduate of a school recognized as in good standing by the Kentucky Board of Pharmacy.
  3. The cabinet may carry out the provisions of KRS 217.005 to 217.215 and regulations relating to food processing establishments, food storage warehouses, salvage distributors, or salvage processing plants or retail food establishments through local health departments.

History. Enact. Acts 1960, ch. 247, § 16, effective June 16, 1960; 1990, ch. 458, § 7, effective July 13, 1990.

NOTES TO DECISIONS

Cited:

Commonwealth, Dep’t for Human Resources v. Kentucky Products, Inc., 616 S.W.2d 496, 1981 Ky. LEXIS 249 ( Ky. 1981 ).

Opinions of Attorney General.

The basis for a warrantless administrative inspection conducted by agents of the Cabinet for Human Resources (now Health and Family Services) and inspectors of the Board of Pharmacy, and a warrantless criminal inspection conducted by agents of the Office of Attorney General with respect to controlled substance violations is set forth in subsection (1) of this section, subsection (1) of KRS 217.215 , and subsections (2) and (3) of KRS 218A.240 ; the standard for such an inspection is less than that which is required of police officers. OAG 86-13 .

217.160. Guaranty by manufacturer or wholesaler admissible in prosecution; when a bar. [Repealed.]

Compiler’s Notes.

This section (2060a-17) was repealed by Acts 1960, ch. 247, § 24.

217.165. Publication of reports and information.

  1. The cabinet may cause to be published from time to time reports summarizing all judgments, decrees, and court orders which have been rendered under KRS 217.005 to 217.215 , including the nature of the charge and the disposition thereof.
  2. The cabinet may also cause to be disseminated such information regarding food, drugs, devices, and cosmetics as the cabinet deems necessary in the interest of public health and the protection of the consumer against fraud. Nothing in this section shall be construed to prohibit the cabinet from collecting, reporting, and illustrating the results of the investigations of the cabinet.

History. Enact. Acts 1960, ch. 247, § 17, effective June 16, 1960.

217.170. Oleomargarine and butterine; when may be manufactured and sold. [Repealed.]

Compiler’s Notes.

This section (2060a-3, 2060a-18) was repealed by Acts 1960, ch. 247, § 24.

217.175. Prohibited acts.

The following acts and the causing thereof within the Commonwealth of Kentucky are hereby prohibited:

  1. The manufacture, sale, or delivery, holding or offering for sale of any food, drug, device, or cosmetic that is adulterated or misbranded;
  2. The adulteration or misbranding of any food, drug, device, or cosmetic;
  3. The receipt in commerce of any food, drug, device, or cosmetic that is adulterated or misbranded, and the delivery or proffered delivery thereof for pay or otherwise;
  4. The sale, delivery for sale, holding for sale, or offering for sale of any article in violation of KRS 217.075 ;
  5. The dissemination of any false advertisement;
  6. The refusal to permit entry or inspection, or to permit the taking of a sample or to permit access to records or evidence, as authorized by KRS 217.155 ;
  7. The giving of a guaranty or undertaking which guaranty or undertaking is false, except by a person who relied on a guaranty or undertaking to the same effect signed by, and containing the name and address of the person residing in the Commonwealth of Kentucky from whom he received in good faith the food, drug, device, or cosmetic;
  8. The removal or disposal of a detained or quarantined article in violation of KRS 217.115 ;
  9. The alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling of, or the doing of any other act with respect to a food, drug, device, or cosmetic, if such act is done while such article is held for sale and results in such article being adulterated or misbranded;
  10. Forging, counterfeiting, simulating, or falsely representing, or without proper authority using any mark, stamp, tag, label, or other identification device authorized or required by regulations promulgated under the provisions of KRS 217.005 to 217.215 ;
  11. The using, on the labeling of any drug or in any advertisement relating to such drug, of any representation or suggestion that any application with respect to such drug is effective under KRS 217.075 , or that such drug complies with the provisions of such section;
  12. The manufacture, sale or exchange of any filled milk;
  13. The manufacture, mixing, compounding, selling, or offering for sale of any flour unless the same is enriched; provided that this prohibition shall not apply to flour sold to bakeries or other commercial secondary processors, which flour is used only in the production of enriched flour or enriched bread or in the manufacture of products not required to be enriched;
  14. The manufacture, baking, sale, or offering for sale of any bread except bread conforming to the definition of enriched bread.

History. Enact. Acts 1960, ch. 247, § 18, effective June 16, 1960; 1978, ch. 292, § 9, effective June 17, 1978.

Legislative Research Commission Note.

Although this section was included in Acts 1978, ch. 292, § 9, as having been amended, there appears to be no change in this section.

NOTES TO DECISIONS

Cited:

Commonwealth, Dep’t for Human Resources v. Kentucky Products, Inc., 616 S.W.2d 496, 1981 Ky. LEXIS 249 ( Ky. 1981 ).

Opinions of Attorney General.

The distribution and sale of packages of birth control pills marked “clinic use only,” in a nonclinical setting, makes them misbranded drugs as defined in KRS 217.065(1), because these drugs are being distributed and sold in a manner contrary to what appears on the label. OAG 83-333 .

The sale, delivery, holding or offering for sale of drugs marked “sample,” “not for sale,” “physician pack,” or similar wording, makes the drugs misbranded because they would be distributed and sold in a manner contrary to what appears on the label. OAG 83-452 .

217.177. Sale and disposal of hypodermic syringes or needles.

  1. No person engaged in sales at retail shall display hypodermic syringes or needles in any portion of the place of business which is open or accessible to the public.
  2. Every person engaged in sales of hypodermic syringes or needles at retail shall maintain a bound record in which shall be kept:
    1. The name of the purchaser; and
    2. The address of the purchaser; and
    3. The quantity of syringes or needles purchased; and
    4. The date of the sale; and
    5. Planned use of such syringes or needles.
  3. Said record shall be maintained for a period of two (2) years from the date of the sale and shall be available for inspection during business hours by any law enforcement officer, agent or employee of the Cabinet for Health and Family Services or Board of Pharmacy engaged in the enforcement of KRS Chapter 218A.
  4. No person shall present false identification or give a false or fictitious name or address in obtaining or attempting to obtain any hypodermic syringe or needle.
  5. No person engaged in the retail sale of hypodermic syringes or needles shall:
    1. Fail to keep the records required by this section; or
    2. Fraudulently alter any record required to be kept by this section; or
    3. Destroy, before the time period required by this section has elapsed, any record required to be kept by this section; or
    4. Sell, or otherwise dispose of, any hypodermic syringe to any person who does not present the identification required by this section; or
    5. Disclose the names in said book except to those required by this section.
  6. Any physician, other licensed medical person, hospital, or clinic disposing of hypodermic syringes or needles shall crush the barrel of same or otherwise render the instrument incapable of further use.

History. Enact. Acts 1974, ch. 404, § 1; 1998, ch. 426, § 458, effective July 15, 1998; 2005, ch. 99, § 513, effective June 20, 2005.

Opinions of Attorney General.

Since the proscription contained in subsection (6) of this section would apply to an urban-county health department and any physicians or licensed medical persons employed by or working at its direction, a needle exchange program of such department would violate the Kentucky statutes. OAG 92-93 .

217.177. Sale and disposal of hypodermic syringes or needles.

  1. No person engaged in sales at retail shall display hypodermic syringes or needles in any portion of the place of business which is open or accessible to the public.
  2. Pharmacies offering retail sale of hypodermic syringes or needles shall make available:
    1. Written or electronic educational materials on safe and proper disposal of hypodermic needles and syringes;
    2. Written or electronic educational or referral information for syringe exchange service programs and substance use disorder treatment; and
    3. A verbal, physical, or electronic offer to provide a naloxone prescription for opioid overdose.
  3. Nothing in this section shall apply to the sale of hypodermic syringes or needles dispensed as a prescription or in conjunction with a prescription medication that requires reconstitution or administration with a syringe.
  4. Any physician, other licensed medical person, hospital, or clinic disposing of hypodermic syringes or needles shall render the instrument incapable of further use.

HISTORY: Enact. Acts 1974, ch. 404, § 1; 1998, ch. 426, § 458, effective July 15, 1998; 2005, ch. 99, § 513, effective June 20, 2005; 2021 ch. 56, § 1.

217.180. Labeling of baking powder. [Repealed.]

Compiler’s Notes.

This section (2060a-3) was repealed by Acts 1960, ch. 247, § 24.

217.181. Theft of a legend drug.

  1. A person is guilty of theft of a legend drug when he unlawfully takes or exercises control over a legend drug that is not a controlled substance, belonging to another person, with the intent to deprive him thereof.
  2. Theft of a legend drug is:
    1. For a first offense a Class D felony, if the legend drug has a value of three hundred dollars ($300) or less; or
    2. For a second or subsequent offense, or a value of greater than three hundred dollars ($300), a Class C felony.

History. Enact. Acts 1998, ch. 301, § 2, effective July 15, 1998.

217.182. Sale, distribution, administration, prescription, or possession of legend drugs — Penalty.

  1. A duly licensed manufacturer, distributor, or wholesaler may sell or distribute a legend drug to any of the following:
    1. A manufacturer, wholesaler, or distributor;
    2. A pharmacy;
    3. A practitioner;
    4. The administrator in charge of a hospital, but only for use by or in that hospital; and
    5. A person in charge of a laboratory, but only for use in that laboratory for scientific and medical research purposes.
  2. A pharmacist may sell or distribute a legend drug:
    1. Pursuant to a prescription that conforms to the requirements of this chapter; or
    2. To a person licensed to administer, dispense, distribute, or possess a legend drug.
  3. A practitioner may:
    1. Administer, dispense, or prescribe a legend drug for a legitimate medical purpose and in the course of professional practice; or
    2. Distribute a legend drug to a person licensed to administer, dispense, distribute, or possess a legend drug.
  4. Possession or control of legend drugs obtained as authorized by this section shall be lawful if it occurred in the regular course of business, occupation, profession, employment, or duty of the possessor.
  5. No person shall traffic in any legend drug except as authorized by this section.
  6. No person shall dispense, prescribe, distribute, or administer any legend drug except as authorized by this section.
  7. No person shall possess any legend drug except as authorized by this section.
  8. Unless another specific penalty is provided in KRS 217.005 to 217.215 , any person who violates any provision of subsections (1) to (6) of this section shall be guilty of a Class A misdemeanor for the first offense and a Class D felony for subsequent offenses.
  9. Unless another specific penalty is provided in KRS 217.005 to 217.215 , any person who violates the provision of subsection (7) of this section shall be guilty of a Class B misdemeanor.
  10. A person to whom or for whose use a legend drug has been prescribed or dispensed may lawfully possess it.

History. Enact. Acts 1998, ch. 301, § 8, effective July 15, 1998.

217.184. Enforcement of sections governing legend drugs.

  1. All police officers and deputy sheriffs, directly employed full-time by state, county, city, or urban-county governments, the Department of Kentucky State Police, the Cabinet for Health and Family Services, the offices of all city, county, and Commonwealth’s attorneys, the Office of the Attorney General, and any of their officers and agents, within their respective jurisdictions, shall enforce KRS 217.207 , 217.208 , 217.209 , 217.181 , and 217.182 relating to legend drugs and cooperate with all agencies charged with the enforcement of the laws of the United States, of this state, and of all other states relating to legend drugs.
  2. Designated agents of the Cabinet for Health and Family Services and the Kentucky Board of Pharmacy are empowered to remove from the files of any pharmacy or other custodian any prescription or other legend drug record upon tendering a receipt. The receipt shall be sufficiently detailed to accurately identify the record and a copy of the records seized shall be returned to the pharmacist within a reasonable amount of time.

History. Enact. Acts 1998, ch. 301, § 11, effective July 15, 1998; 2005, ch. 99, § 514, effective June 20, 2005; 2007, ch. 85, § 251, effective June 26, 2007.

217.185. Duty of local prosecuting attorneys.

It shall be the duty of each Commonwealth’s attorney, county attorney, or city attorney to whom the cabinet or its agents report any violation of KRS 217.005 to 217.215 , to cause appropriate proceedings to be instituted in the proper courts without delay and to be prosecuted in the manner required by law. Before any violation of KRS 217.005 to 217.215 is reported to any such attorney for the institution of a criminal proceeding, the person against whom such proceeding is contemplated may be given appropriate notice and an opportunity to present his views before the cabinet or its designated agent, either orally or in writing, in person, or by attorney, with regard to such contemplated proceeding.

History. Enact. Acts 1960, ch. 247, § 19, effective June 16, 1960.

217.186. Provider prescribing or dispensing naloxone — Administration by third party — Use of naloxone by person or agency authorized to administer medication — Immunity from liability — Administrative regulations — Use of naloxone by schools — Use of naloxone by pharmacist.

  1. A licensed health-care provider who, acting in good faith, directly or by standing order, prescribes or dispenses the drug naloxone to a person or agency who, in the judgment of the health-care provider, is capable of administering the drug for an emergency opioid overdose, shall not, as a result of his or her acts or omissions, be subject to disciplinary or other adverse action under KRS Chapter 311, 311A, 314, or 315 or any other professional licensing statute. As used in this subsection, “licensed health-care provider” includes a pharmacist as defined in KRS 315.010 who holds a separate certification issued by the Kentucky Board of Pharmacy authorizing the initiation of the dispensing of naloxone under subsection (5) of this section.
  2. A prescription for naloxone may include authorization for administration of the drug to the person for whom it is prescribed by a third party if the prescribing instructions indicate the need for the third party upon administering the drug to immediately notify a local public safety answering point of the situation necessitating the administration.
  3. A person or agency, including a peace officer, jailer, firefighter, paramedic, or emergency medical technician or a school employee authorized to administer medication under KRS 156.502 , may:
    1. Receive a prescription for the drug naloxone;
    2. Possess naloxone pursuant to this subsection and any equipment needed for its administration; and
    3. Administer naloxone to an individual suffering from an apparent opiate-related overdose.
  4. A person acting in good faith who administers naloxone received under this section shall be immune from criminal and civil liability for the administration, unless personal injury results from the gross negligence or willful or wanton misconduct of the person administering the drug.
    1. The Board of Pharmacy, in consultation with the Kentucky Board of Medical Licensure, shall promulgate administrative regulations to establish certification, educational, operational, and protocol requirements to implement this section. (5) (a) The Board of Pharmacy, in consultation with the Kentucky Board of Medical Licensure, shall promulgate administrative regulations to establish certification, educational, operational, and protocol requirements to implement this section.
    2. Administrative regulations promulgated under this subsection shall:
      1. Require that any dispensing under this section be done only in accordance with a physician-approved protocol and specify the minimum required components of any such protocol;
      2. Include a required mandatory education requirement as to the mechanism and circumstances for the administration of naloxone for the person to whom the naloxone is dispensed; and
      3. Require that a record of the dispensing be made available to a physician signing a protocol under this subsection, if desired by the physician.
    3. Administrative regulations promulgated under this subsection may include:
      1. A supplemental educational or training component for a pharmacist seeking certification under this subsection; and
      2. A limitation on the forms of naloxone and means of its administration that may be dispensed pursuant to this subsection.
    1. The board of each local public school district and the governing body of each private and parochial school or school district may permit a school to keep naloxone on the premises and regulate the administration of naloxone to any individual suffering from an apparent opiate-related overdose. (6) (a) The board of each local public school district and the governing body of each private and parochial school or school district may permit a school to keep naloxone on the premises and regulate the administration of naloxone to any individual suffering from an apparent opiate-related overdose.
    2. In collaboration with local health departments, local health providers, and local schools and school districts, the Kentucky Department for Public Health shall develop clinical protocols to address supplies of naloxone kept by schools under this section and to advise on the clinical administration of naloxone.
  5. Notwithstanding any provision of law to the contrary, a pharmacist may utilize the protocol established by this section to dispense naloxone to any person or agency who provides training on the mechanism and circumstances for the administration of naloxone to the public as part of a harm reduction program, regardless of whom the ultimate user of the naloxone may be. The documentation of the dispensing of naloxone to any person or agency operating a harm reduction program shall satisfy any general documentation or recording requirements found in administrative regulations regarding legend drugs promulgated pursuant to this chapter.

History. Enact. Acts 2013, ch. 118, § 10, effective June 25, 2013; 2015 ch. 66, § 8, effective March 25, 2015; 2019 ch. 130, § 1, effective June 27, 2019.

217.187. Persons selling less than 150 gallons of honey in a year.

If a person sells less than one hundred fifty (150) gallons of honey in a year off the farm, the person shall not be required to process the honey in a certified honey house or food processing establishment, nor shall the person be required to obtain a permit from the cabinet. The person shall be required to comply with the other provisions of KRS 217.005 to 217.215 as those provisions apply.

History. Enact. Acts 2002, ch. 134, § 1, effective July 15, 2002.

217.190. Labeling of vinegar. [Repealed.]

Compiler’s Notes.

This section (1282) was repealed by Acts 1960, ch. 247, § 24.

217.195. Cabinet is not required to prosecute.

Nothing in KRS 217.005 to 217.215 shall be construed as requiring the cabinet to report for the institution of proceedings under KRS 217.005 to 217.215 , violations of KRS 217.005 to 217.215, whenever the cabinet believes that the public interest will be adequately served in the circumstances by a suitable written notice or warning.

History. Enact. Acts 1960, ch. 247, § 20, effective June 16, 1960.

217.200. Labeling of preserved or canned foods, maple syrup and molasses. [Repealed.]

Compiler’s Notes.

This section (1283a-1 to 1283a-3) was repealed by Acts 1960, ch. 247, § 24.

217.205. Cabinet’s power to enjoin violations.

Notwithstanding the existence or pursuit of any other remedy (civil or criminal) the cabinet may maintain, in its own name, an action to restrain or enjoin any violation of KRS 217.005 to 217.215 , irrespective of whether or not there exists an adequate remedy at law.

History. Enact. Acts 1960, ch. 247, § 21, effective June 16, 1960.

Research References and Practice Aids

Cross-References.

Injunctions, KRS 454.060 to 454.085 .

217.207. Theft, criminal possession, trafficking, or unlawful possession of a prescription blank.

  1. A person is guilty of theft of a prescription blank when he unlawfully takes or exercises control over a prescription blank belonging to another.
  2. A person is guilty of criminal possession of a prescription blank when, with knowledge that he has no lawful authority to possess a prescription blank, he possesses a prescription blank with the intent to make or utter a forged prescription or sell or transfer the prescription blank to another person for that purpose.
  3. A person is guilty of trafficking in prescription blanks when he knowingly and unlawfully traffics in a prescription blank or a forged prescription for a legend drug.
  4. The knowing, with intent to violate this chapter, possession of a prescription blank by a person other than a pharmacist, practitioner, or other person authorized by law to prescribe or dispense a legend drug, a manufacturer, wholesaler, or distributor, or by a person lawfully printing or reproducing prescription blanks, shall be prima facie evidence that the prescription blank was possessed for the purpose of making or uttering a forged prescription or for sale or transfer to another person for that purpose.
  5. Any person who violates any subsection of this section shall be guilty of a Class A misdemeanor for the first offense and a Class D felony for a second or subsequent offense.

History. Enact. Acts 1998, ch. 301, § 3, effective July 15, 1998.

217.208. Forgery of a prescription.

  1. A person is guilty of forgery of a prescription when, with intent to defraud, deceive, or injure another, he falsely makes, completes, or alters a written instrument which is or purports to be or which is calculated to become or to represent a prescription for a legend drug when completed.
  2. Forgery of a prescription is:
    1. For a first offense, a Class D felony.
    2. For a second or subsequent offense, a Class C felony.

History. Enact. Acts 1998, ch. 301, § 4, effective July 15, 1998.

217.209. Criminal possession of a forged prescription.

  1. A person is guilty of criminal possession of a forged prescription when, with knowledge that it is forged and with intent to defraud, deceive, or injure another, he possesses a forged prescription.
  2. Criminal possession of a forged prescription is:
    1. For a first offense, a Class A misdemeanor.
    2. For second or subsequent offense, a Class D felony.

History. Enact. Acts 1998, ch. 301, § 5, effective July 15, 1998.

217.210. Sale of eggs unfit for food prohibited. [Repealed.]

Compiler’s Notes.

This section (1905a-60-1) was repealed by Acts 1956, ch. 121, § 14.

217.211. Electronic prescribing.

  1. Electronic prescribing of a drug or device under this chapter shall not interfere with a patient’s freedom to select a pharmacy.
  2. Electronic prescribing software used by a practitioner to prescribe a drug or device under this chapter may include clinical messaging and messages in pop-up windows directed to the practitioner regarding a particular drug or device that supports the practitioner’s clinical decision making.
  3. Drug information contained in electronic prescribing software to prescribe a drug or device under this chapter shall be consistent with Food and Drug Administration-approved information regarding a particular drug or device.
    1. Electronic prescribing software used by a practitioner to prescribe a drug or device under this chapter may show information regarding a payor’s formulary, copayments, or benefit plan, provided that nothing in the software is designed to preclude a practitioner from selecting any particular pharmacy or drug or device. (4) (a) Electronic prescribing software used by a practitioner to prescribe a drug or device under this chapter may show information regarding a payor’s formulary, copayments, or benefit plan, provided that nothing in the software is designed to preclude a practitioner from selecting any particular pharmacy or drug or device.
    2. If electronic prescribing software does show information regarding a payor’s formulary, payments, or benefit plan under paragraph (a) of this subsection, the information shall be updated at least quarterly to ensure its accuracy.
  4. Each governmental unit of the Commonwealth promulgating administrative regulations relating to electronic prescribing shall include in the regulations electronic prior authorization standards meeting the requirements of KRS 304.17A-167 in its implementation of health information technology improvements as required by the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 and the Health Information Technology for Economic and Clinical Health Act, enacted as part of the American Recovery and Reinvestment Act of 2009.

HISTORY: Enact. Acts 2012, ch. 136, § 1, effective July 12, 2012; 2019 ch. 190, § 3, effective January 1, 2020.

Compiler's Notes.

For this section as effective until January 1, 2020, see the bound volume.

217.214. Seizure of unlawful prescription.

  1. A pharmacist, practitioner, or other person authorized by law to dispense legend drugs, or an employee of that person, may seize and retain any prescription which he has reasonable suspicion for believing is forged, altered, or possessed in violation of KRS 217.207 , 217.208 , or 217.209 .
  2. Seizure and retention shall be for a reasonable period of time to make reasonable inquiry as to whether the prescription is forged, altered, or illegally possessed.
  3. If after reasonable inquiry the pharmacist, practitioner, or other person determines that the prescription is forged, altered, or stolen, he shall report the seizure to a law enforcement officer and shall surrender the prescription to the officer upon the request of the officer.

History. Enact. Acts 1998, ch. 301, § 6, effective July 15, 1998.

217.215. Pharmacy board’s powers as to drugs — Regulations on prescription records and on refilling prescriptions in emergency.

  1. The Board of Pharmacy, its agents and inspectors shall have the same powers of inspection and enforcement as the cabinet under KRS 217.005 to 217.215 , insofar as it relates to drugs in licensed pharmacies.
  2. The Board of Pharmacy may establish regulations relating to the storage and retrieval of prescription records in licensed pharmacies, including regulations regarding computerized recordkeeping systems.
    1. No prescription for any drug may be refilled by a pharmacist unless authorized by the prescribing practitioner, except that, in emergency situations in which such authorization may not be readily or easily obtained from the practitioner, a pharmacist may: (3) (a) No prescription for any drug may be refilled by a pharmacist unless authorized by the prescribing practitioner, except that, in emergency situations in which such authorization may not be readily or easily obtained from the practitioner, a pharmacist may:
      1. Dispense up to a seventy-two (72) hour supply of maintenance medication;
      2. Dispense greater than a seventy-two (72) hour supply of maintenance medication if:
        1. The standard unit of dispensing for the drug exceeds a seventy- two (72) hour supply;
        2. The pharmacist dispenses a supply of the drug that is equal to the standard unit of dispensing for the drug; and
        3. The drug is used for insulin therapy or the treatment of chronic respiratory diseases; and
      3. Dispense up to a thirty (30) day supply of maintenance medication in emergency situations as authorized by KRS 315.500 .
    2. Emergency refills dispensed under this subsection shall not be authorized for any controlled substance or for any drug which is not essential to maintenance of life or continuation of therapy in chronic disease conditions.
    3. The Board of Pharmacy shall promulgate administrative regulations to carry out the provisions of this subsection.

History. Enact. Acts 1960, ch. 247, § 22; 1982, ch. 147, § 1, effective July 15, 1982; 2010, ch. 22, § 4, effective July 15, 2010; 2019 ch. 185, § 1, effective June 27, 2019.

Opinions of Attorney General.

The basis for a warrantless administrative inspection conducted by agents of the Cabinet for Human Resources (now Health and Family Services) and inspectors of the Board of Pharmacy, and a warrantless criminal inspection conducted by agents of the Office of Attorney General with respect to controlled substance violations is set forth in subsection (1) of KRS 217.155 , subsection (1) of this section, and subsections (2) and (3) of KRS 218A.240 ; the standard for such an inspection is less than that which is required of police officers. OAG 86-13 .

Research References and Practice Aids

Kentucky Law Journal.

Note, Consumer Protection and Prescription Drugs: The Generic Drug Substitution Laws, 67 Ky. L.J. 384 (1978-1979).

217.216. Prescription blanks to include prescribing practitioner’s name, telephone number, and business address.

  1. Every prescription order written by a practitioner authorized by statute to prescribe under this chapter and KRS Chapter 218A shall bear upon the prescription blank the name, telephone number, and business address of the prescribing practitioner.
  2. In order to provide a pharmacist sufficient information to meet the communication requirements of KRS 217.822(10)(c), every prescription order written by a practitioner authorized by statute to prescribe a biological product under this chapter shall bear upon the prescription blank the name, telephone number, and business address of the prescribing practitioner in a clear and legible manner.

History. Enact. Acts 1992, ch. 127, § 1, effective July 14, 1992; 2016 ch. 73, § 3, effective July 15, 2016.

217.217. No restriction on donation of game meat to not-for-profit organization — Conditions.

  1. As used in this section:
    1. “Not-for-profit organization” means an organization duly organized and validly existing as a not-for-profit organization under the laws of the Commonwealth and exempt under Section 501(c)(3) of the Internal Revenue Code;
    2. “Take” has the same meaning as in KRS 150.010 ; and
    3. “Wildlife” has the same meaning as in KRS 150.010 .
  2. Notwithstanding any provision of law to the contrary, no state or local government entity, including any local health department, shall restrict the donation of game meat to or from a not-for-profit organization for the purpose of free meal distribution to individuals in need if the game meat came from fish or wildlife that was:
    1. Taken within the Commonwealth;
    2. Properly field dressed and processed; and
    3. Apparently disease-free when taken and unspoiled when processed.

HISTORY: 2015 ch. 35, § 1, effective June 24, 2015.

217.217. No restriction on donation of game meat to not-for-profit organization — Conditions.

  1. As used in this section:
    1. “Cooperative extension agency” means the University of Kentucky Cooperative Extension Service and the Kentucky State University Cooperative Extension Program;
    2. “Not-for-profit organization” means an organization duly organized and validly existing as a not-for-profit organization under the laws of the Commonwealth and exempt under Section 501(c)(3) of the Internal Revenue Code;
    3. “Take” has the same meaning as in KRS 150.010 ; and
    4. “Wildlife” has the same meaning as in KRS 150.010 .
  2. Notwithstanding any provision of law to the contrary, no state or local government entity, including any local health department, shall restrict the donation of game meat to or from a not-for-profit organization, cooperative extension agency, the Kentucky Department of Fish and Wildlife Resources, or any government agency for the purposes of education, promotion of hunting or fishing, or free meal distribution to individuals in need if the game meat came from fish or wildlife that was:
    1. Taken within the Commonwealth;
    2. Properly field dressed and processed; and
    3. Apparently disease-free when taken and unspoiled when processed.

HISTORY: 2015 ch. 35, § 1, effective June 24, 2015; 2021 ch. 33, § 1.

217.218. Construction of chapter regarding donation of food.

Nothing in this chapter shall be construed to prohibit or regulate the donation of safe and apparently wholesome food by a retail food establishment.

History. Enact. Acts 2006, ch. 64, § 2, effective July 12, 2006.

217.220. Candling of eggs; dockage; records. [Repealed.]

Compiler’s Notes.

This section (1905a-60-2) was repealed by Acts 1956, ch. 121, § 14.

217.230. “Candling” defined; proper handling facilities required. [Repealed.]

Compiler’s Notes.

This section (1905a-60-3) was repealed by Acts 1956, ch. 121, § 14.

217.240. License required of egg dealers. [Repealed.]

Compiler’s Notes.

This section (1905a-60-4) was repealed by Acts 1956, ch. 121, § 14.

Imitation Dairy Products

217.241. Food products containing no dairy ingredient in semblance of milk or milk products, regulations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 177, § 1) was repealed by Acts 1972, ch. 176, § 1.

217.243. Definitions for KRS 217.241 to 217.257 and 217.996. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 177, § 2) was repealed by Acts 1972, ch. 176, § 1.

217.247. Permit required for importation or manufacture of food products made in semblance of milk. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 177, § 3) was repealed by Acts 1972, ch. 176, § 1.

217.250. Regulations by State Board of Health as to eggs. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1942, ch. 208, § 1; 1905a-60-5) was repealed by Acts 1956, ch. 121, § 14.

217.251. Standards of identity and labeling requirements — Registration — Laboratory examination. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 177, § 4) was repealed by Acts 1972, ch. 176, § 1.

217.253. Fees deposited in trust and agency fund; how used. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 177, § 5) was repealed by Acts 1972, ch. 176, § 1.

217.257. Sale in restaurants or at retail, how identified. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 177, § 6) was repealed by Acts 1972, ch. 176, § 1.

217.260. Filled milk defined; an adulterated food. [Repealed.]

Compiler’s Notes.

This section (1905a-60, 1905a-60a: amend. Acts 1952, ch 158, § 1) was repealed by Acts 1960, ch. 247, § 24.

217.270. Manufacture, sale or exchange of filled milk prohibited; enforcement. [Repealed.]

Compiler’s Notes.

This section (1905a-60b, 1905a-60e, 1905a-60f) was repealed by Acts 1960, ch. 247, § 24.

217.271. Manufacture or sale of unenriched flour prohibited; exception as to sales to processors. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1944, ch. 153, § 2) was repealed by Acts 1960, ch. 247, § 24.

217.272. Manufacture or sale of bread not meeting standards for enriched bread forbidden. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1944, ch. 153, § 3) was repealed by Acts 1960, ch. 247, § 24.

217.273. Labeling requirements for flour and wrapped bread. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1944, ch. 153, § 4) was repealed by Acts 1960, ch. 247, § 24.

217.274. Enforcement of KRS 217.271 to 217.274; temporary suspension of requirements; rules and regulations; samples; right of access. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1944, ch. 153, § 5) was repealed by Acts 1960, ch. 247, § 24.

Food Establishments

217.280. Food establishments to be sanitary.

Every building, room, inclosure or premises occupied, used or maintained for the preparation, manufacture, packing, storage, sale or distribution of any food intended for sale shall be properly and adequately lighted, drained, plumbed and ventilated, and shall be conducted with strict regard to the influence of such conditions upon the health of those employed therein, and upon the purity and wholesomeness of the food produced, prepared, manufactured, packed, stored, sold or distributed therein.

History. 2060b-1.

NOTES TO DECISIONS

Cited:

Henry v. Parrish, 307 Ky. 559 , 211 S.W.2d 418, 1948 Ky. LEXIS 764 ( Ky. 1948 ).

Research References and Practice Aids

Cross-References.

Hotel and food service regulations inspection, KRS ch. 219.

Inspection of frozen food locker plants, KRS 221.070 .

217.285. Display of choke-saving techniques posters.

  1. Each food service establishment, having an on-premises seating capacity of twenty-five (25) persons or more, shall post inside the establishment, in a location conspicuous to employees, a choke-saving techniques poster meeting the following requirements.
  2. The choke-saving techniques poster shall meet the following specifications:
    1. The poster shall depict through illustration and description procedures for the removal of food which is lodged in a person’s throat; and
    2. The techniques illustrated and described shall include, but need not be limited to, the procedures whereby the choking person is grasped around the lower chest and upper abdomen and given a quick jerk, thus putting increased interabdominal pressure on the lungs and expelling the foreign matter.
  3. The Cabinet for Health and Family Services shall produce or requisition the production of the choke-saving techniques poster as provided in this section and shall supply the posters to the local health departments for distribution without cost to food establishments.

History. Enact. Acts 1990, ch. 458, § 6, effective July 13, 1990; 1998, ch. 426, § 459, effective July 15, 1998; 2005, ch. 99, § 515, effective June 20, 2005.

217.290. Buildings and equipment to be kept clean, healthful and sanitary — Protection from contamination — Removal of waste.

The floors, side walls, ceilings, furniture, receptacles, implements and machinery of every establishment or place where food intended for sale is produced, prepared, manufactured, packed, stored, sold or distributed, and all vehicles used in the transportation of such food, shall not be kept or permitted to remain in an unclean, unhealthy or unsanitary condition. An unclean, unhealthful and unsanitary condition shall be deemed to exist if food in the process of production, preparation, manufacture, packing, storing, sale, distribution or transportation is not securely protected from flies, dust and dirt, and as far as may be necessary by all reasonable means from all other foreign or injurious contamination; or if the refuse, dirt or waste products subject to decomposition and fermentation incident to the manufacture, preparation, packing, storing, selling, distributing or transportation of food is not removed daily; or if all machinery, equipment and utensils are not thoroughly cleaned daily, or if the clothing of persons therein employed is unclean.

History. 2060b-2.

217.300. Construction requirements of walls, ceilings and floors.

The side walls and ceilings of every bakery, confectionery, creamery and cheese factory, and hotel or restaurant kitchen, shall be so constructed that they can easily be kept clean. Every building, room or inclosure occupied or used for the preparation, manufacture, packing, storage, sale or distribution of food shall have an impermeable floor made of cement or tile laid in cement, brick, wood or other suitable material that can be flushed and washed clean with water.

History. 2060b-3.

217.310. Doors and screens.

All such places containing food shall be provided with proper doors and screens adequate to prevent contamination of the food from flies.

History. 2060b-4.

217.320. Toilets and lavatories.

Every place of the kind mentioned in KRS 217.280 shall have adequate and convenient toilet rooms and lavatories. The toilet rooms shall be separate and apart from any room where the process of preparation, manufacture, packing, storing, selling or distributing is conducted. The floors of the toilet rooms shall be of cement, tile, wood, brick or other nonabsorbent material, and shall be washed and scoured daily. Each toilet shall be furnished with separate ventilating flues and pipes discharging into soil pipes, or shall be outside of and well removed from the building. Lavatories and washrooms shall be adjacent to toilet rooms, or when the toilet is outside of the building the washroom shall be near the exit to the toilet, and shall be supplied with soap, running water and towels and maintained in a sanitary condition.

History. 2060b-5.

217.330. Conditions deemed a nuisance.

If any place of the kind mentioned in KRS 217.280 or any thing mentioned in KRS 217.290 to 217.320 is constructed, kept, maintained or permitted to remain in a condition contrary to any of the provisions of KRS 217.280 to 217.320 , the same is declared a nuisance. No person shall unlawfully maintain or allow or permit to exist a nuisance as defined in this section.

History. 2060b-6.

217.340. Cuspidors to be provided. [Repealed.]

Compiler’s Notes.

This section (2060b-7) was repealed by Acts 1972, ch. 337, § 10.

217.350. Spitting in food establishment — Employees to wash hands.

No person shall expectorate on the food or utensils in, or on the floor or wall of, any place of the kind mentioned in KRS 217.280 . All persons who handle the food shall, before beginning work and after visiting the toilet, wash their hands thoroughly in clean water.

History. 2060b-8.

217.360. Sleeping in food establishment prohibited.

No person shall sleep, or permit any other person to sleep, in any place where food is prepared for sale, served or sold, unless all foods therein handled are at all times in hermetically sealed packages.

History. 2060b-9.

217.370. Persons with disease not to work in food establishment. [Repealed.]

Compiler’s Notes.

This section (2060b-10) was repealed by Acts 1990, ch. 458, § 17, effective July 13, 1990.

217.380. Enforcement of food establishment law — Abatement of unlawful conditions.

  1. The officials in charge of the enforcement of the pure food laws of this state, the secretary for health and family services, the local health officers, and the duly appointed agents of all such, shall enforce the provisions of KRS 217.280 to 217.390 . For this purpose such officers shall have full power at all times to enter every building, room, inclosure or premises occupied or used or suspected of being occupied or used for the preparation or manufacture for sale, or the storage, sale, distribution, or transportation, of such food, and to inspect the premises and all utensils, fixtures, furniture and machinery used therein.
  2. If upon inspection there is found any violation of any of the provisions of KRS 217.280 to 217.390 , or if the preparation, manufacture, packing, storage, sale, distribution or transportation of such food is being conducted in a manner detrimental to the health of the employees or to the character or quality of the food, the officer or inspector making the inspection shall report the conditions and violations to the chief pure food official, or to the secretary for health and family services, or to the chief local health officer, as the case may be.
  3. The officer to whom the report is made shall thereupon issue a written order to the person responsible for the violation or condition to abate the condition or violation or to make the changes or improvements necessary to abate them, within a reasonable time as fixed in the order. Notice of the order may be served by delivering a copy to the person, or by sending a copy by certified mail, return receipt requested in which case the post office receipt shall be prima facie evidence that the notice was received. The person shall have the right to appear in person or by attorney before the officer issuing the notice or the person appointed by him for that purpose, within the time limited in the order, and shall be given an opportunity to be heard and to show why the order or instructions should not be obeyed. The hearing shall be under rules and regulations prescribed by the secretary for health and family services. If after the hearing it appears that the provisions of KRS 217.280 to 217.390 have not been violated, the order shall be rescinded. If it appears that the provisions of KRS 217.280 to 217.390 are being violated, and that the person notified is responsible therefor, the previous order shall be confirmed or amended, as the facts warrant, and shall thereupon be final, but such additional time as is necessary may be granted within which to comply with the final order. If the person is not present or represented when the final order is made, notice thereof shall be given as above provided. If the person fails to comply with the first order within the time prescribed, when no hearing is demanded, or fails to comply with the final order within the time specified, the facts shall be certified to the Commonwealth’s, county or city attorney in whose jurisdiction the violation occurred, and such attorney shall proceed against the person for the applicable fines and penalties, and for abatement of the nuisance. The proceedings prescribed in this section for abatement of the nuisance shall not relieve the violator from prosecution in the first instance for every violation, nor from the penalties prescribed for such violation.

History. 2060b-11: amend. Acts 1974, ch. 74, Art. VI, § 107(1); 1974, ch. 315, § 30; 1980, ch. 114, § 43, effective July 15, 1980; 1998, ch. 426, § 460, effective July 15, 1998; 2005, ch. 99, § 516, effective June 20, 2005.

Research References and Practice Aids

Cross-References.

Inspection of frozen food locker plants, KRS 221.070 .

217.390. Adulterated food found in food establishment to be tagged — Disposition.

  1. When any duly authorized officer mentioned in KRS 217.380 finds any article of food that is adulterated, or any other article or substance that is detrimental to public health, the article shall be tagged or otherwise properly marked, giving notice that the product is suspected of being adulterated or detrimental to public health and has been quarantined, and warning all persons not to remove it until given permission by the officer or the courts.
  2. No person shall remove or otherwise dispose of such article in violation of this section.
  3. The officer shall then petition the judge of the District Court in the judicial circuit in which the article is found, for the condemnation and destruction of the article. The owner or defender of the article shall be given the right to a hearing, first before the officer, if desired, and before the court. The notice of a hearing before the officer shall state the length of time within which the hearing may be had.
  4. If the finding of the court is with the officer, the article shall be destroyed at the expense of the owner, or by the owner under the supervision of the officer. The costs shall be taxed against the owner or defender of the property, if he appears. If no one appears, the costs shall be collected against the owner or agent properly ascertained.

History. 2060b-12: amend. Acts 1976, ch. 62, § 102; 1976 (Ex. Sess.), ch. 14, § 207, effective January 2, 1978.

Poisons Generally

217.400. Poison defined — Sale restricted — Register to be kept.

  1. A poison is any drug, chemical or preparation that, according to standard works on medicine or medica, is liable to be destructive to adult human life in quantities of sixty (60) grains or less.
  2. Except as provided in subsection (4) of this section, no person shall sell or retail any poison without affixing to the package containing it a label printed or plainly written containing the name of the article, the word “poison,” and the name and place of business of the seller, with the common name of two (2) or more readily accessible antidotes, nor shall he deliver poison to any person without satisfying himself that the poison is to be used for legitimate purposes. Any person selling or dispensing any poison that is known to be destructive to adult human life in quantities of five (5) grains or less shall, before delivering it, enter in a book kept for that purpose the name of the seller, the name and residence of the buyer, the name of the article, the quantity sold or disposed of, and the purpose for which it is said to be intended. The book of registry shall be preserved for at least two (2) years after the date of the last entry, and shall at all times be open to the inspection of the coroner of the county in which it is kept, and the members or authorized inspectors of the Kentucky Board of Pharmacy.
  3. The emmenagogues or abortives known as tansy, pennyroyal, rue, savin, ergot, cotton root and their preparations, patent or otherwise, shall be sold at retail or dispensed only upon the original written prescription of a legally qualified physician. The prescription shall be filled but once and no copy shall be taken by any person.
  4. The provisions of this section shall not apply to the dispensing of poisons in not unusual quantities or doses, on physicians’ prescriptions, nor to the sale to agriculturists or horticulturists of articles commonly used by them as insecticides.

History. 2630.

Legislative Research Commission Note.

KRS 217.640 provides for the repeal of the provisions of KRS 217.400 covering economic poisons subject to KRS 217.542 to 217.640 .

NOTES TO DECISIONS

1.Constitutionality.

Subsection (2) of this section was not invalid for uncertainty because of failure to define “retail,” which is generally understood to mean sale in small quantity; nor because of failure to define “legitimate purposes,” presumption arising that druggist knows legitimate purposes for which poisons mentioned in statute may be used; but if he does not, or is in doubt, he must exercise reasonable care to ascertain purpose for which poison is bought. Katzman v. Commonwealth, 140 Ky. 124 , 130 S.W. 990, 1910 Ky. LEXIS 199 ( Ky. 1910 ).

This section was not invalid as making unreasonable discrimination against retail dealers in favor of wholesalers, since wholesalers making retail sales would be liable, and classification is reasonable. Katzman v. Commonwealth, 140 Ky. 124 , 130 S.W. 990, 1910 Ky. LEXIS 199 ( Ky. 1910 ).

2.Purpose.

Purpose of statute, so far as referring to opium and kindred drugs, is to prevent sales in small quantities without a physician’s prescription to persons intending to use them not for medical or legitimate purposes but to satisfy depraved habit. Katzman v. Commonwealth, 140 Ky. 124 , 130 S.W. 990, 1910 Ky. LEXIS 199 ( Ky. 1910 ).

3.Applicability.

This section applies to such deadly poisons as produce immediate harm or death, but not to patent or proprietary medicines, as is shown by KRS 315.020 and 315.040 . Kentucky Board of Pharmacy v. Cassidy, 115 Ky. 690 , 74 S.W. 730, 25 Ky. L. Rptr. 102 , 1903 Ky. LEXIS 149 ( Ky. 1903 ).

Where both the expert medical witnesses and references to standard medical texts indicated that no human death had ever resulted from taking the worm medicine in question, there was a complete absence of evidence on which any possible application of this section could be based. Holbrook v. Rose, 458 S.W.2d 155, 1970 Ky. LEXIS 162 ( Ky. 1970 ).

4.Prosecutions.

In prosecution against druggist for selling opium at retail, it was question of fact whether, before selling, he in good faith exercised reasonable care to ascertain that intended use was for legitimate purpose. Katzman v. Commonwealth, 140 Ky. 124 , 130 S.W. 990, 1910 Ky. LEXIS 199 ( Ky. 1910 ).

5.Standards of Care.

Since this section and KRS 315.020 and 315.040 were for public’s protection, duties imposed upon druggists were statutory tests of care so far as statutes went; nonobservance was both per se neglect of duty and also neglect of care; where special damage resulted, there existed, prima facie, actionable negligence. Sutton's Adm'r v. Wood, 120 Ky. 23 , 85 S.W. 201, 27 Ky. L. Rptr. 412 , 1905 Ky. LEXIS 67 ( Ky. 1905 ).

6.Civil Damages.

Notwithstanding this section together with KRS 315.020 and 315.040 were police measures to protect public health and breach thereof was fineable crime, damages from negligence were recoverable pursuant to KRS 446.070 by one specially damaged. Sutton's Adm'r v. Wood, 120 Ky. 23 , 85 S.W. 201, 27 Ky. L. Rptr. 412 , 1905 Ky. LEXIS 67 ( Ky. 1905 ).

7.Sale without Prescription.

Whenever druggist sells poisons at retail without being protected by physician’s prescription, he risks violating law unless, before selling, he in good faith uses reasonable care to ascertain that use is for legitimate purpose. Katzman v. Commonwealth, 140 Ky. 124 , 130 S.W. 990, 1910 Ky. LEXIS 199 ( Ky. 1910 ).

8.Legitimate Purposes.

Evidence of experts as to what is regarded by qualified physicians and druggists to be legitimate purposes for use of opium is competent. Katzman v. Commonwealth, 140 Ky. 124 , 130 S.W. 990, 1910 Ky. LEXIS 199 ( Ky. 1910 ).

217.410. Marihuana; sale and possession restricted. [Repealed.]

Compiler’s Notes.

This section (2635a-1) was repealed by Acts 1954, ch. 158, § 2.

217.420. Methyl (wood) alcohol for human use — Sale or other disposition prohibited.

No person shall sell, offer for sale, give away, deal in or supply, or have in his possession for that purpose, any article of food or drink or any medicinal or toilet preparation intended for human use internally or externally that contains any methyl alcohol, otherwise known as wood alcohol or wood naphtha, either crude or refined, or that contains denatured alcohol containing methyl or wood alcohol.

History. 2635b-1.

217.430. Labeling of wood alcohol.

No person shall sell, offer for sale, give away, deal in or supply, or have in his possession for that purpose, any methyl alcohol, otherwise known as wood alcohol or wood naphtha, either crude or refined, unless the container bears the following conspicuously printed, stenciled or typewritten notice: “Skull and crossbones — Poison — Wood alcohol or wood naphtha — Warning. Wood alcohol is poisonous, and when inhaled or swallowed may cause blindness or death. It is unlawful to use this fluid in any way either internally or externally for the human body.”

History. 2635b-2.

217.440. Labeling of denatured alcohol.

No person shall sell, offer for sale, give away, deal in or supply, or have in his possession for that purpose, any denatured alcohol that contains methyl or wood alcohol, unless the container bears the following conspicuously printed, stenciled or typewritten notice: “Skull and crossbones — Poison — Denatured alcohol — Warning. This fluid contains wood alcohol, and if inhaled or swallowed may cause blindness or death. It is unlawful to use this fluid in any way either internally or externally for the human body.”

History. 2635b-3.

217.450. Poisonous drug not to be sold to infant.

No person shall sell or deliver to any person under the age of fifteen (15) years, except with the consent of his parent or guardian or upon the written prescription of a physician, any poisonous drug or medicine.

History. 1276.

NOTES TO DECISIONS

1.Actionable Negligence.

It is conceivable that a sale of poison without a prescription to persons other than those under 15 years of age might well constitute actionable negligence. Carroll v. Begley Drug Co., 335 S.W.2d 554, 1957 Ky. LEXIS 1 ( Ky. 1957 ).

217.460. Barbiturates, prohibitions concerning. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 65, § 2) was repealed by Acts 1958, ch. 98, § 13.

217.461. Definitions for KRS 217.461 to 217.535. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 98, § 1) was repealed by Acts 1968, ch. 81, § 16.

217.462. Prohibited acts involving barbiturates. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 98, § 2) was repealed by Acts 1968, ch. 81, § 16.

217.470. Dispensing of barbiturates by pharmacists; prescriptions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 65, § 3) was repealed by Acts 1958, ch. 98, § 13.

217.471. Dispensation by pharmacists. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 98, § 3; 1962, ch. 8) was repealed by Acts 1968, ch. 81, § 16.

217.480. Possession and dispensing by practitioners. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 65, § 4) was repealed by Acts 1958, ch. 98, § 13.

217.481. Possession by doctor. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 98, § 4) was repealed by Acts 1968, ch. 81, § 16.

217.490. Possession and sale by wholesalers and manufacturers. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 65, § 5) was repealed by Acts 1958, ch. 98, § 13.

217.491. Possession by wholesaler and manufacturer. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 98, § 5) was repealed by Acts 1968, ch. 81, § 16.

217.500. Exemptions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 65, § 6) was repealed by Acts 1958, ch. 98, § 13.

217.501. Exempted compounds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 98, § 6) was repealed by Acts 1968, ch. 81, § 16.

217.510. Preservation and inspection of prescriptions and records. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 65, § 7) was repealed by Acts 1958, ch. 98, § 13.

217.511. Preservation of records; inspection. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 98, § 7) was repealed by Acts 1968, ch. 81, § 16.

217.520. Administration. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 65, § 8) was repealed by Acts 1958, ch. 98, § 13.

217.521. Administration; regulations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 98, § 8) was repealed by Acts 1968, ch. 81, § 16.

217.530. Enforcement. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 65, § 9) was repealed by Acts 1958, ch. 98, § 13.

217.531. Enforcement. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 98, § 9) was repealed by Acts 1968, ch. 81, § 16.

217.533. Injunctive remedy. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 98, § 10) was repealed by Acts 1968, ch. 81, § 16.

217.535. Transmittal of conviction records to health department. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 98, § 11) was repealed by Acts 1968, ch. 81, § 16.

217.540. Definitions for KRS 217.540 to 217.640. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1956, ch. 218, § 1; 1970, ch. 77, § 1) was repealed by Acts 1974, ch. 200, § 16.

Experimental Treatments for Terminal Illnesses

217.5401. Definitions for KRS 217.5401 to 217.5408.

As used in KRS 217.5401 to 217.5408 :

  1. “Biological product” means a virus, therapeutic serum, toxin, antitoxin, vaccine, blood, blood component or derivative, protein other than a chemically synthesized polypeptide, allergenic product or analogous product, or arsphenamine or derivative of arsphenamine or any other trivalent organic arsenic compound, applicable to the prevention, treatment, or cure of a disease or condition of human beings;
  2. “Device” has the same meaning as in KRS 217.015 ;
  3. “Drug” has the same meaning as in KRS 217.015 ;
  4. “Eligible patient” means an individual who meets the requirements of KRS 217.5403 ;
  5. “Health care provider” means a licensed physician, a licensed advanced practice registered nurse, or a licensed physician assistant;
  6. “Health facility” has the same meaning as in KRS 216B.015 ;
  7. “Investigational drug, biological product, or device” means a drug, biological product, or device that:
    1. Has successfully completed Phase I of a clinical trial but has not yet been approved for general use by the United States Food and Drug Administration; and
    2. Remains under investigation in a United States Food and Drug Administration-approved clinical trial;
  8. “Terminal illness” means a progressive disease or a medical or surgical condition that:
    1. Entails significant functional impairment;
    2. Is not considered by a treating health care provider to be reversible even with administration of a treatment currently approved by the United States Food and Drug Administration; and
    3. Without life-sustaining procedures, will result in death; and
  9. “Written informed consent” means a written document that meets the requirements of KRS 217.5407 .

HISTORY: 2017 ch. 65, § 1, effective June 29, 2017.

217.5402. Manufacturer of investigational drug, biological product, or device may make it available to a requesting patient eligible under KRS 217.5401 to 217.5408.

  1. A manufacturer of an investigational drug, biological product, or device may make the investigational drug, biological product, or device available to an eligible patient who has requested it pursuant to KRS 217.5401 to 217.5408 .
  2. The manufacturer may:
    1. Provide an investigational drug, biological product, or device to an eligible patient without receiving compensation; or
    2. Require an eligible patient to pay the costs of or the costs associated with the manufacture of the investigational drug, biological product, or device.
  3. A manufacturer shall not be required to make an investigational drug, biological product, or device available to an eligible patient.

HISTORY: Enact. Acts 2017, ch. 65, § 2, effective June 29, 2017. Formerly codified as KRS 217.5403 .

217.5403. Renumbered as KRS 217.5402.

  1. A manufacturer of an investigational drug, biological product, or device may make the investigational drug, biological product, or device available to an eligible patient who has requested it pursuant to KRS 217.5401 to 217.5408 .
  2. The manufacturer may:
    1. Provide an investigational drug, biological product, or device to an eligible patient without receiving compensation; or
    2. Require an eligible patient to pay the costs of or the costs associated with the manufacture of the investigational drug, biological product, or device.
  3. A manufacturer shall not be required to make an investigational drug, biological product, or device available to an eligible patient.

217.5403. Eligibility requirements for treatment with investigational drug, biological product, or device.

A patient shall be eligible for treatment with an investigational drug, biological product, or device if the patient has:

  1. A terminal illness that is attested to by the patient’s treating health care provider;
  2. Considered all other treatment options currently approved by the United States Food and Drug Administration;
  3. Received a recommendation from the patient’s treating health care provider for an investigational drug, biological product, or device;
  4. Given written informed consent for the use of the investigational drug, biological product, or device; and
  5. Documentation from the treating health care provider that the patient meets the requirements of this section.

HISTORY: Enact. Acts 2017, ch. 65, § 3, effective June 29, 2017. Formerly codified as KRS 217.5405 .

217.5404. Written informed consent required for treatment with investigational drug, biological product, or device.

  1. A patient or a patient’s legal guardian shall provide written informed consent for treatment with an investigational drug, biological product, or device.
  2. At a minimum, the written informed consent shall include:
    1. An explanation of the currently approved products and treatments for the disease or condition from which the patient suffers;
    2. An attestation that the patient concurs with the treating health care provider’s belief that all currently approved and conventionally recognized treatments are unlikely to prolong the patient’s life;
    3. Clear identification of the specific investigational drug, biological product, or device that the patient is seeking to use;
    4. A description of the potentially best and worst outcomes of using the investigational drug, biological product, or device and a realistic description of the most likely outcome;
    5. A statement that the patient’s health plan or third-party administrator and provider shall not be obligated to pay for any care or treatments consequent to the use of the investigational drug, biological product, or device unless they are specifically required to do so by law or contract; and
    6. A statement that the patient understands that the patient shall be liable for all expenses related to the use of the investigational drug, biological product, or device and that the liability for expenses extends to the patient’s estate, unless a contract between the patient and the manufacturer of the investigational drug, biological product, or device states otherwise.
  3. The description of potential outcomes required under subsection (2)(d) of this section shall:
    1. Include the possibility that new, unanticipated, different, or worse symptoms may result and that the proposed treatment may hasten death; and
    2. Be based on the treating health care provider’s knowledge of the proposed treatment in conjunction with an awareness of the patient’s condition.
  4. The written informed consent shall be:
    1. Signed by:
      1. The patient;
      2. A parent or legal guardian, if the patient is a minor; or
      3. A legal guardian, if a guardian has been appointed for the patient; and
    2. Attested to by the patient’s treating health care provider and a witness.

HISTORY: Enact. Acts 2017, ch. 65, § 4, effective June 29, 2017. Formerly codified as KRS 217.5407 .

217.5405. Renumbered as KRS 217.5403.

A patient shall be eligible for treatment with an investigational drug, biological product, or device if the patient has:

  1. A terminal illness that is attested to by the patient’s treating health care provider;
  2. Considered all other treatment options currently approved by the United States Food and Drug Administration;
  3. Received a recommendation from the patient’s treating health care provider for an investigational drug, biological product, or device;
  4. Given written informed consent for the use of the investigational drug, biological product, or device; and
  5. Documentation from the treating health care provider that the patient meets the requirements of this section.

217.5405. Limitations on impact KRS 217.5401 to 217.5408 may have on insurance coverage or health facility services — Coverage permitted — Approval of health facility for use.

  1. KRS 217.5401 to 217.5408 shall not:
    1. Expand the coverage required of an insurer;
    2. Affect the requirements for insurance coverage of routine patient costs for patients involved in approved cancer clinical trials;
    3. Require a health plan, third-party administrator, or governmental agency to pay costs associated with the use, care, or treatment of an eligible patient with an investigational drug, biological product, or device; or
    4. Require a hospital or health facility to provide new or additional services.
  2. A health plan, third-party administrator, or governmental agency may provide coverage for the cost of an investigational drug, biological product, or device or the cost of services related to the use of an investigational drug, biological product, or device under KRS 217.5401 to 217.5408 .
  3. A hospital or health facility may approve the use of an investigational drug, biological product, or device in the hospital or health facility.

HISTORY: Enact. Acts 2017, ch. 65, § 5, effective June 29, 2017. Formerly codified as KRS 217.5409.

217.5406. Death of patient receiving experimental treatment absolves heirs of liability for resulting debt.

If an eligible patient dies while being treated with an investigational drug, biological product, or device, the patient’s heirs are not liable for any outstanding debt related to the treatment or to a lack of insurance as a result of the treatment.

HISTORY: Enact. Acts 2017, ch. 65, § 6, effective June 29, 2017. Formerly codified as KRS 217.5411.

217.5407. Renumbered as KRS 217.5404.

  1. A patient or a patient’s legal guardian shall provide written informed consent for treatment with an investigational drug, biological product, or device.
  2. At a minimum, the written informed consent shall include:
    1. An explanation of the currently approved products and treatments for the disease or condition from which the patient suffers;
    2. An attestation that the patient concurs with the treating health care provider’s belief that all currently approved and conventionally recognized treatments are unlikely to prolong the patient’s life;
    3. Clear identification of the specific investigational drug, biological product, or device that the patient is seeking to use;
    4. A description of the potentially best and worst outcomes of using the investigational drug, biological product, or device and a realistic description of the most likely outcome;
    5. A statement that the patient’s health plan or third-party administrator and provider shall not be obligated to pay for any care or treatments consequent to the use of the investigational drug, biological product, or device unless they are specifically required to do so by law or contract; and
    6. A statement that the patient understands that the patient shall be liable for all expenses related to the use of the investigational drug, biological product, or device and that the liability for expenses extends to the patient’s estate, unless a contract between the patient and the manufacturer of the investigational drug, biological product, or device states otherwise.
  3. The description of potential outcomes required under subsection (2)(d) of this section shall:
    1. Include the possibility that new, unanticipated, different, or worse symptoms may result and that the proposed treatment may hasten death; and
    2. Be based on the treating health care provider’s knowledge of the proposed treatment in conjunction with an awareness of the patient’s condition.
  4. The written informed consent shall be:
    1. Signed by:
      1. The patient;
      2. A parent or legal guardian, if the patient is a minor; or
      3. A legal guardian, if a guardian has been appointed for the patient; and
    2. Attested to by the patient’s treating health care provider and a witness.

217.5407. Health care provider held harmless for recommendation that a patient have access to experimental treatment.

  1. A licensing board shall not revoke, fail to renew, suspend, or take any action against a licensed health care provider based solely on the health care provider’s recommendations to an eligible patient regarding access to or treatment with an investigational drug, biological product, or device.
  2. The Cabinet for Health and Family Services shall not take action against a health care provider’s Medicare or Medicaid certification based solely on the health care provider’s recommendation that a patient have access to an investigational drug, biological product, or device.

HISTORY: Renumbered from § 217.5413 by 2017 ch. 65, Enact. Acts 2017, ch. 65, § 7, effective June 29, 2017. Formerly codified as KRS 217.5413, effective June 29, 2017.

Compiler's Notes.

Former KRS 217.5407 renumbered as 217.5404 .

217.5408. Prohibition against blocking or attempting to block access by eligible patient to experimental treatment.

  1. An official, employee, or agent of the Commonwealth of Kentucky shall not block or attempt to block an eligible patient’s access to an investigational drug, biological product, or device.
  2. Counseling, advice, or a recommendation consistent with medical standards of care from a licensed health care provider shall not be considered a violation of this section.

HISTORY: Enact. Acts 2017, ch. 65, § 8, effective June 29, 2017. Formerly codified as KRS 217.5415.

Pesticide Control

217.541. Short title.

KRS 217.542 to 217.630 and 217.998 may be cited as the “Kentucky Pesticide Control Act of 1974.”

History. Enact. Acts 1974, ch. 200, § 1.

217.542. Administration of pesticide control statutes.

KRS 217.542 to 217.630 shall be administered by the Department of Agriculture, hereinafter referred to as the “department.”

History. Enact. Acts 1974, ch. 200, § 2; 1980, ch. 295, § 48, effective July 15, 1980.

217.544. Definitions for chapter.

As used in this chapter, unless the context requires otherwise:

  1. “Active ingredient” means any ingredient which will prevent, destroy, repel, control, or mitigate pests, or which will act as a plant regulator, defoliant, or desiccant, or as a functioning agent in a spray adjuvant;
  2. “Adulterated” shall apply to any pesticide if its strength or purity falls below the professed standard or quality as expressed on its labeling or under which it is sold, or if any substance has been substituted wholly or in part for the pesticide, or if any valuable constituent of the pesticide has been wholly or in part abstracted;
  3. “Animal” means all vertebrate and invertebrate species, including but not limited to man and other mammals, birds, fish, and shellfish;
  4. “Antidote” means the most practical immediate treatment in case of poisoning and includes first-aid treatment;
  5. “Board” means the Pesticide Advisory Board;
  6. “Defoliant” means any substance or mixture of substances intended to cause the leaves or foliage to drop from a plant, with or without causing abscission;
  7. “Desiccant” means any substance or mixture of substances intended to artificially accelerate the drying of plant tissue;
  8. “Device” means any instrument or contrivance other than a firearm which is intended for trapping, destroying, repelling, or mitigating any pest or any other form of plant or animal life other than man and other bacteria, virus, or other microorganisms on or in living man or other living animals; but not including equipment used for the application of pesticides when sold separately therefrom;
  9. “Distribute” means to offer for sale, hold for sale, sell, barter, ship, deliver for shipment, or receive and, having received, deliver or offer to deliver pesticides in this state;
  10. “Environment” includes water, air, land, and all plants and man and other animals living therein and the interrelationships which exist among these;
  11. “EPA” means the United States Environmental Protection Agency;
  12. “FIFRA” means the Federal Insecticide, Fungicide and Rodenticide Act as amended;
  13. “Fungi” means all nonchlorophyll-bearing thallophytes; that is, all nonchlorophyll-bearing plants of a lower order than mosses and liverworts, as for example, rusts, smuts, mildews, molds, yeasts, bacteria, and viruses, except those on or in living man or other living animals, and except those in or on processed food, beverages, or pharmaceuticals;
  14. “Highly toxic pesticide” means any pesticide determined to be highly toxic under the authority of sec. 25(c)(2) of FIFRA or by the department under this chapter;
  15. “Imminent hazard” means a situation which exists when the continued use of a pesticide would likely result in unreasonable adverse effects on the environment or will involve unreasonable hazard to the survival of a species declared endangered by the secretary of the United States Department of Interior under Pub. L. 91-135 of the United States Congress;
  16. “Inert ingredient” means an ingredient which is not an active ingredient;
  17. “Ingredient statement” means a statement of the name and percentage of each active ingredient together with the total percentage of the inert ingredients in the pesticide and, when the pesticide contains arsenic in any form, a statement of the percentage of total and water-soluble arsenic, each stated as elemental arsenic;
  18. “Insect” means any of the numerous small invertebrate animals generally having the body more or less obviously segmented, for the most part belonging to the class insecta, comprising six (6) legged, usually winged forms, as for example, beetles, bugs, bees, flies, and to other allied classes of arthropods whose members are wingless and usually have more than six (6) legs, as, for example, spiders, mites, ticks, centipedes, and wood lice, also nematodes and other invertebrates which are destructive, constitute a liability, and may be classed as pests;
  19. “Label” means the written, printed, or graphic matter on, or attached to, the pesticide or device, or to any of its containers or wrappers;
  20. “Labeling” means the label and other written, printed, or graphic matter:
    1. On the pesticide or device, or any of its containers or wrappers;
    2. Accompanying the pesticide or device at any time or referring to it in any other media used to disseminate information to the public; and
    3. To which reference is made on the label or in the literature accompanying the pesticide or device, except when accurate nonmisleading reference is made to current official publications of the United States Environmental Protection Agency, the Departments of Agriculture and Interior, the Department of Health, Education and Welfare, and other similar federal institutions, the College of Agriculture, University of Kentucky, Kentucky Agricultural Experiment Station, Cabinet for Health and Family Services, Energy and Environment Cabinet, or other agencies of this state or other states when such agencies are authorized by law to conduct research in the field of pesticides;
  21. “Land” means all land and water areas, including air space and all plants, animals, structures, buildings, contrivances, and machinery appurtenant thereto, or situated thereon, fixed or mobile, including any used for transportation;
  22. “Livestock” means cattle, sheep, swine, goats, horses, alpacas, llamas, buffaloes, and any other animals of the bovine, ovine, porcine, caprine, equine, or camelid species;
  23. “Misbranded” means a pesticide is misbranded if:
    1. Its labeling bears any statement, design, or graphic representation relative thereto or to its ingredients which is false or misleading in any particular;
    2. It is an imitation of or is distributed under the name of another pesticide;
    3. The labeling accompanying it does not contain directions for use which are necessary for effecting the purpose for which the product is intended and, if complied with, together with any requirements imposed under section 3(d) of FIFRA are adequate to protect health and the environment;
    4. The labeling does not contain a statement of the use classification under which the product is registered by EPA;
    5. The label does not contain a warning or caution statement which may be necessary and if complied with, together with any requirements imposed under section 3(d) of FIFRA, is adequate to protect health and the environment;
    6. The label does not bear an ingredient statement on that part of the immediate container, and on the outside container or wrapper, if there be one, through which the ingredient statement on the immediate container cannot be clearly read, of the retail package which is presented or displayed under customary conditions of the purchase; provided, that the ingredient statement may appear prominently on another part of the container pursuant to section 2(q)2(A)(i)(ii) of FIFRA if the size and form of the container makes it impractical to place it on that part of the retail package which is presented or displayed under customary conditions of purchase;
    7. Any word, statement, or other information required by KRS 217.542 to 217.630 or FIFRA to appear on the label or labeling is not prominently placed thereon with such conspicuousness, as compared to other words, statements, designs, or graphic matter in the labeling, and in such terms as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use;
    8. The label does not bear the name, brand, or trademark under which the pesticide is distributed;
    9. The label does not bear the net weight or measure of the content;
    10. The label does not bear the name and address of the manufacturer, registrant, or person for whom manufactured; and
    11. The label does not bear the EPA registration number assigned to each establishment in which the product is produced and the EPA number assigned to the pesticide, if required by regulation under FIFRA;
  24. “Nematode” means invertebrate animals of the phylum nemathelminthes and class nematoda, that is, unsegmented round worms with elongated, fusiform, or sac-like bodies covered with cuticle, and inhabiting soil, water, plants or plant parts; may also be called nemas or eelworms;
  25. “Person” means any individual, partnership, association, or any organized group of persons whether incorporated or not;
  26. “Pest” means any insect, snail, slug, rodent, nematode, fungus, weed, and any other form of plant or animal life, or virus, bacteria, or other microorganism, except viruses, bacteria, or other microorganisms on or in living man or other living animals, which is normally considered to be a pest, or which the department may declare to be a pest;
  27. “Pesticide” means any substance or mixture of substances intended to prevent, destroy, control, repel, attract, or mitigate any pest; any substance or mixture of substances intended to be used as a plant regulator, defoliant, or desiccant; and any substance or mixture of substances intended to be used as a spray adjuvant;
  28. “Plant regulator” means any substance or mixture of substances, intended through physiological actions, to accelerate or retard the rate of growth or maturation, or to otherwise alter the behavior of plants, but shall not include substances insofar as they are intended to be used as plant nutrients, trace elements, nutritional chemicals, plant inoculants, or soil amendments;
  29. “Protect health and the environment” means protection against any unreasonable adverse effects on the environment;
  30. “Registrant” means a person who has registered any pesticide pursuant to the provisions of KRS 217.542 to 217.630 ;
  31. “Restricted-use pesticide” means any pesticide classified for restricted use by the administrator, EPA, or by regulation of the department;
  32. “Spray adjuvant” means any wetting agent, spreading agent, sticker, deposit builder, adhesive, emulsifying agent, deflocculating agent, water modifier, or similar agent intended to be used with any other pesticide as an aid to the application or to the effect thereof, and which is in a package or container separate from that of the other pesticide with which it is to be used;
  33. “Unreasonable adverse effects on the environment” means any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide;
  34. “Weed” means any plant which grows where not wanted; and
  35. “Wildlife” means all living things that are neither human, domesticated, nor as defined in KRS 217.542 to 217.630 , pests, including but not limited to mammals, birds, and aquatic life.

HISTORY: Enact. Acts 1974, ch. 200, § 3; 1980, ch. 295, § 49, effective July 15, 1980; 1998, ch. 426, § 461, effective July 15, 1998; 2005, ch. 99, § 517, effective June 20, 2005; 2010, ch. 24, § 323, effective July 15, 2010; 2017 ch. 129, § 12, effective June 29, 2017.

Compiler’s Notes.

The Federal Insecticide, Fungicide and Rodenticide Act as amended, referred to in subdivision (12) of this section, is compiled as 7 USCS § 136 et seq.

All of the provisions of Public Law 91-135, referred to in subdivision (15) of this section, have been repealed with the exception of 16 USCS § 705.

Research References and Practice Aids

Kentucky Law Journal.

Redfield, Chemical Trespass? — An Overview of Statutory and Regulatory Efforts to Control Pesticide Drift, 73 Ky. L.J. 855 (1984-85).

217.550. Prohibitions relating to distribution of pesticides.

It shall be unlawful for any person to distribute within this state the following:

  1. Any pesticide which is not registered pursuant to the provisions of KRS 217.542 to 217.630 , and to the provisions of FIFRA;
  2. Any pesticide if any of the claims made for it or any of the directions for its use differ from the representations made in connection with its registration, or if the composition of a pesticide differs from its composition as represented in connection with its registration; provided, that in the discretion of the department, a change in the labeling or formulation of a pesticide may be made, within a registration period, without requiring reregistration of the product if the name is not changed and if the registration is amended to reflect such change and if such change will not violate any provisions of FIFRA;
  3. Any pesticide, unless it is in the registrant’s or the manufacturer’s unbroken immediate container, and there is affixed to such container, and to the outside container or wrapper of the retail package, if there is one through which the required information on the immediate container cannot be clearly read, a label bearing:
    1. The brand name and address of the manufacturer, registrant or person for whom manufactured;
    2. The name, brand or trademark under which the article is sold;
    3. The net weight or measure of the content; and
    4. Any pesticide in containers which are unsafe due to damage.
  4. Any pesticide which contains any substance or substances in quantities highly toxic to man, determined as provided in KRS 217.542 to 217.630 , unless the label bears, in addition to any other matter required by KRS 217.542 to 217.630 :
    1. The skull and crossbones;
    2. The word “poison” in red prominently displayed on a background of distinctly contrasting color; and
    3. A statement of a practical treatment, first aid or otherwise, in case of poisoning by the pesticide;
  5. The pesticides commonly known as lead arsenate, basic lead arsenate, calcium arsenate, magnesium arsenate, zinc arsenate, zinc arsenite, sodium fluoride, sodium fluosilicate, and barium fluosilicate unless they are distinctly colored or discolored as provided by regulations, or any other white powder pesticide which the department, after investigation of and after public hearing on the necessity for such action for the protection of human life and the environment and the feasibility of such coloration or discoloration, shall by regulation, require to be distinctly colored or discolored unless it has been so colored or discolored;
  6. Any pesticide which is adulterated or misbranded, or any device which is misbranded.

History. Enact. Acts 1956, ch. 218, § 2; 1974, ch. 200, § 4; 1980, ch. 295, § 50, effective July 15, 1980.

217.556. Restrictions on use, sale of DDT — Treble damages for violation. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 77, § 2) was repealed by Acts 1974, ch. 200, § 16.

217.558. Warning for purchasers of DDT. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 77, § 3) was repealed by Acts 1974, ch. 200, § 16.

217.560. Unlawful practices.

It shall be unlawful:

  1. For any person to detach, alter, deface, or destroy, in whole or in part, any label or labeling provided for in KRS 217.542 to 217.630 or the regulations adopted hereunder, or to add any substance to, or take any substance from a pesticide in a manner that may defeat the purposes of KRS 217.542 to 217.630 or the regulations adopted hereunder;
  2. For any person to use for his own advantage or to reveal, other than to the department, or proper officials or employees of the state or officials or employees of EPA, or other federal agencies, or to the courts in response to a subpoena, or to physicians, or in emergencies to pharmacists and other qualified persons for use in the preparation of antidotes, in accordance with such directions as the department may prescribe, any information relative to formulas of products, or trade secrets or other confidential information obtained under authority of KRS 217.542 to 217.630 ;
  3. For any person to oppose or interfere in any way with the department or its duly authorized agents in carrying out the duties imposed by KRS 217.542 to 217.630 or any regulations adopted hereunder;
  4. For any person to handle, transport, store, display or distribute pesticides in such a manner as to endanger man and his environment, or to endanger food, feed, or any other products that may be transported, stored, displayed or distributed with such pesticides; and
  5. For any person to dispose of, discard, or store any pesticides or pesticide containers in such a manner as to cause injury to humans, vegetation, crops or livestock, wildlife, beneficial insects, or to pollute any water supply or waterway.

History. Enact. Acts 1956, ch. 218, § 3, effective July 1, 1956; 1974, ch. 200, § 5; 1980, ch. 295, § 51, effective July 15, 1980.

217.570. Registration of pesticides — Annual inspection fee — Renewal.

    1. Except as provided by paragraph (b) of this subsection, every pesticide distributed within the state or delivered for transportation or transported in intrastate commerce or between points within the state through points outside the state shall be registered with the department. (1) (a) Except as provided by paragraph (b) of this subsection, every pesticide distributed within the state or delivered for transportation or transported in intrastate commerce or between points within the state through points outside the state shall be registered with the department.
    2. Registration is not required if:
      1. A pesticide is shipped from one (1) plant or warehouse to another plant or warehouse operated by the same person and used solely at the plant or warehouse as a constituent part to make a pesticide which is registered under the provisions of KRS 217.542 to 217.630 ; or
      2. If the pesticide is distributed under the provisions of an experimental use permit issued under the provisions of KRS 217.542 to 217.630 or an experimental use permit issued by EPA.
    3. All registrations shall expire on the thirty-first day of December of the calendar year for which they were issued.
  1. The applicant for registration shall file with the department, a statement containing:
    1. The name and address of the applicant and the name and address of the person whose name will appear on the label, if other than the applicant’s;
    2. The name of the pesticide and its EPA registration number;
    3. A complete copy of the labeling accompanying the pesticide and a statement of all claims made or to be made for it including directions for use and a request that the pesticide be classified for nonrestricted use, for restricted use, or for both as provided for in FIFRA. In the case of renewal of registration, a statement shall be required only with respect to information which is different from that furnished when the pesticide was registered or last reregistered, unless the department requests a copy of the labeling; and
    4. Other necessary information as specified by the department on the application for registration form.
  2. The department may require a full description of the tests made and results of the tests upon which the claims are based on any pesticide not registered in accordance with Section 3 of FIFRA, or on any pesticide on which restrictions are being considered.
    1. The applicant desiring to register a pesticide in this state shall make application on forms furnished by the department, and, for the purposes identified in paragraph (b) of this subsection, shall pay to the department an annual fee of two hundred fifty dollars ($250) for each and every brand or grade to be offered for sale in this state. There shall be issued to the registrant by the department a license entitling the registrant to sell all duly registered brands in this state until the expiration of the license. (4) (a) The applicant desiring to register a pesticide in this state shall make application on forms furnished by the department, and, for the purposes identified in paragraph (b) of this subsection, shall pay to the department an annual fee of two hundred fifty dollars ($250) for each and every brand or grade to be offered for sale in this state. There shall be issued to the registrant by the department a license entitling the registrant to sell all duly registered brands in this state until the expiration of the license.
    2. The annual fees received by the department shall be used to fund:
      1. The Kentucky Agriculture and Environment in the Classroom program, a program administered by the department;
      2. The farm chemical and container disposal program, a program administered by the department;
      3. The cost-sharing program through the department and the Energy and Environment Cabinet, Division of Conservation, for the use of farmers in implementing agricultural production practices that protect the quality of soil and water resources; and
      4. Expenses incurred in the enforcement of KRS 217.542 to 217.630 .
  3. The department, when necessary in the administration of KRS 217.542 to 247.630 , may require the submission of the complete formula of any pesticide, including the active and inert ingredients.
  4. The department may refuse to register, or to cancel the registration of, any brand of pesticide upon satisfactory proof that the registrant has been guilty of fraudulent and deceptive practices in evasions or attempted evasions of the provisions of KRS 217.542 to 217.630 or any administrative regulations promulgated under KRS 217.542 to 217.630 . No registration shall be revoked or refused until the registrant has been given a hearing by the department.
  5. Registrants desiring to renew registrations shall file with the department an application for renewal prior to January 1. Any registration in effect on the thirty-first day of December and for which a renewal application has been made and the proper fee paid shall continue in full force and effect until the department has notified the applicant that the registration has been renewed, or denied.
  6. If the renewal of a pesticide registration is not filed prior to January 15 of any year, or if a new product is sold or offered for sale prior to registration, an additional fee of ten dollars ($10) shall be assessed and added to the original fee before the registration of that pesticide is renewed or a new registration is accepted. The additional fee shall not apply if the applicant furnishes an affidavit certifying that he did not distribute any unregistered pesticides during the period of nonregistration. The payment of the additional fee is not a bar to any prosecution for doing business without proper registry.
  7. Upon certification by the administrator of EPA to register pesticides in accordance with Section 24(c) of FIFRA, the department may register the pesticides if it determines that:
    1. Its composition warrants the proposed claims for it;
    2. Its labeling and other material required to be submitted meet with the requirements of KRS 217.542 to 217.630 ;
    3. It will perform its intended function, and when used in accordance with widespread and commonly recognized practice, will not cause unreasonable adverse effects on the environment; and
    4. The registration is not disapproved by the administrator of EPA.

History. Enact. Acts 1956, ch. 218, § 5; 1974, ch. 200, § 6; 1980, ch. 295, § 52, effective July 15, 1980; 1994, ch. 141, § 1, effective July 15, 1994; 2009, ch. 81, § 1, effective June 25, 2009; 2010, ch. 24, § 324, effective July 15, 2010.

Compiler's Notes.

The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), referred to in this section, is compiled as 7 USCS § 136 et seq.

For Section 3 of FIFRA, see 7 USCS § 136a. For Section 24(c) of FIFRA, see 7 USCS § 136v(c).

Research References and Practice Aids

Kentucky Law Journal.

Redfield, Chemical Trespass? — An Overview of Statutory and Regulatory Efforts to Control Pesticide Drift, 73 Ky. L.J. 855 (1984-85).

217.572. Registration refusal, cancellation, suspension, and legal recourse — Appeal of order — Notice to EPA.

  1. Upon certification pursuant to Section 24(c) of FIFRA by the administrator of EPA to register pesticides formulated to meet special local needs, the department shall consider the following for refusal to register, for cancellation, for suspension and for legal recourse for applicable pesticides:
    1. If it does not appear to the department that the pesticide is such as to warrant the proposed claims for it or if the pesticide and its labeling and other material required to be submitted do not comply with the provisions of KRS 217.542 to 217.630 or administrative regulations promulgated thereunder, the department shall notify the applicant of the manner in which the pesticide, labeling, or other material required to be submitted fails to comply with the provisions of KRS 217.542 to 217.630 so as to afford the applicant an opportunity to make the necessary corrections. If, upon receipt of this notice, the applicant does not make the required changes, the department may refuse to register the pesticide.
    2. When the department determines that a pesticide or its labeling does not comply with the provisions of KRS 217.542 to 217.630 or the administrative regulations promulgated thereunder, the registration of a pesticide may be cancelled after a hearing that shall be conducted in accordance with KRS Chapter 13B.
    3. When the department determines that there is an imminent hazard, it may suspend the registration of a pesticide by issuing an emergency order pursuant to KRS 13B.125 .
    4. Any person who will be adversely affected by a final order or emergency order issued under this section may obtain judicial review by filing a petition in the Franklin Circuit Court in accordance with KRS Chapter 13B.
  2. If the department determines that the federally-registered pesticide with respect to the use of a pesticide subject to this section within this state does not warrant the proposed claims for it, or if the pesticide and its labeling and other material required to be submitted do not comply with the provisions of FIFRA or the regulations promulgated thereunder, EPA shall be notified of the manner in which the pesticide, labeling, or other material required to be submitted fail to comply with the provisions of FIFRA and suggest necessary corrections.

History. Enact. Acts 1974, ch. 200, § 7; 1980, ch. 295, § 53, effective July 15, 1980; 1996, ch. 318, § 124, effective July 15, 1996.

Compiler’s Notes.

The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), referred to in this section, is compiled as 7 USCS § 136 et seq.

For Section 24(c) of FIFRA, see 7 USCS § 136v(c).

217.574. Experimental use permits.

Upon authorization of the state by the administrator of EPA to issue experimental use permits, the department may:

  1. Issue an experimental use permit to any person applying for such permit if the applicant needs such permit in order to accumulate information to register a pesticide. Application for an experimental use permit may be filed at the time of, or before or after an application for registration is filed.
  2. Prescribe terms, conditions and period of time, for experimental use permit which shall be under the supervision of such person as may be designated on the permit.
  3. Revoke any experimental use permit at any time, upon finding that its terms or conditions are being violated, or that its terms and conditions are inadequate to avoid unreasonable adverse effect on the environment.

History. Enact. Acts 1974, ch. 200, § 8; 1980, ch. 295, § 54, effective July 15, 1980.

217.580. Authority of department.

  1. The department may, after due notice and an opportunity for a hearing:
    1. Declare as a pest any form of plant or animal life or virus, except virus, bacteria, or other micro-organisms on or in living man or other living animals, which is injurious to plants, animals, or the environment;
    2. Determine whether pesticides registered under the authority of Section 24(c) of FIFRA are highly toxic to man. The definition of highly toxic, as defined in Title 40, Code of Federal Regulations 162.8 as issued or hereafter amended, shall govern the department in this determination;
    3. Determine standards of coloring or discoloring for pesticides and to subject pesticides to the requirements for coloration or discoloration if the department determines such requirements are necessary for the protection of health and the environment;
    4. Determine pesticides, and quantities of substances contained in pesticides, which are injurious to the environment and shall be guided by EPA regulations in this determination.
  2. The department may:
    1. Effect the collection and examination of samples of pesticides and devices to determine compliance with the requirements of KRS 217.542 to 217.630 , and may at all reasonable hours enter any car, warehouse, store, building, boat, vessel or other place supposed to contain pesticides or devices for the purpose of inspection or sampling and to procure samples for analysis or examination from any lot, package or parcel of pesticides or device;
    2. Publish from time to time, in such form as it may deem proper, reports of the results of the analyses of official samples of pesticides distributed within the state;
    3. After a public hearing, make appropriate regulations relating to the sale and distribution of pesticides as may be necessary for carrying out the meaning of KRS 217.542 to 217.630 , including but not limited to:
      1. The safe handling, transportation, storage, display, distribution and disposal of pesticides and their containers;
      2. Labeling requirements of all pesticides required to be registered under KRS 217.542 to 217.630; provided, that such regulations shall not impose any requirements for federally registered labels in addition to or different from those required pursuant to FIFRA; and
      3. Specify classes of devices which shall be subject to the provisions of KRS 217.542 to 217.630.
    4. Cooperate with, and enter into agreements with, any other agency of this state, the United States Environmental Protection Agency, and any other state or agency thereof for the purpose of carrying out the provisions of KRS 217.542 to 217.630.
  3. For the purpose of uniformity of requirements between states and the federal government the department may, after a public hearing, adopt regulations in conformity with the primary pesticide standards, particularly as to the labeling, registration requirements and “restricted use pesticides” as established by EPA or other federal or state agencies.

History. Enact. Acts 1956, ch. 218, § 6; 1974, ch. 200, § 9; 1980, ch. 295, § 55, effective July 15, 1980.

Compiler’s Notes.

The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), referred to in subdivisions (1)(b) and (2)(c), is compiled as 7 USCS § 136 et seq.

Section 24(c) of FIFRA is compiled as 7 USCS § 136v(c).

Research References and Practice Aids

2014-2016 Budget Reference.

See State/Executive Branch Budget, 2014 Ky. Acts ch. 117, Pt. I, A, 22, (1) at 618.

Kentucky Law Journal.

Redfield, Chemical Trespass? — An Overview of Statutory and Regulatory Efforts to Control Pesticide Drift, 73 Ky. L.J. 855 (1984-85).

217.590. Violations of KRS 217.540 to 217.640, duties of director relating to — Penalties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1956, ch. 218, § 7) was repealed by Acts 1974, ch. 200, § 16.

217.600. When penalties not applicable.

The penalties provided for violations of KRS 217.542 to 217.630 shall not apply to:

  1. Any carrier while lawfully engaged in transporting a pesticide within this state, if such carrier shall, upon request, permit the department or its designated agent to copy all records showing the transactions in and movements of the pesticides or devices;
  2. Public officials of this state and of the federal government while engaged in the performance of their official duties in administering state or federal laws or regulations, or while engaged in pesticide research;
  3. The manufacturer or shipper of a pesticide for experimental use only by or under the supervision of an agency of this state or of the federal government authorized by law to conduct research in the field of pesticides; provided, that such manufacturer or shipper hold a valid experimental permit as provided for in KRS 217.542 to 217.630 or by EPA;
  4. Any person who ships a substance or mixture of substances being put through tests in which the purpose is only to determine its value for pesticide purposes or to determine its toxicity or other properties and from which the user does not expect to receive any benefit in pest control from its use.

History. Enact. Acts 1956, ch. 218, § 8; 1974, ch. 200, § 10; 1980, ch. 295, § 56, effective July 15, 1980.

217.610. Department to issue “stop sale, use or removal” order — Appeal.

The department shall issue and enforce a written or printed “stop sale, use or removal” order to the owner or custodian of any lot of pesticide and to hold it at a designated place when it finds said pesticide is being offered or exposed for sale in violation of the provisions of KRS 217.542 to 217.630 until the law has been complied with and said pesticide is released in writing or said violation has been otherwise legally disposed of by written authority; provided, that the owner or custodian of such pesticide shall have the right to appeal from such order to a court of competent jurisdiction in the county where the said pesticide or pesticides are found, praying for a judgment as to the justification of said order, and for the discharge of such pesticide from the order prohibiting the sale in accordance with the findings of the court; and, provided further, that the provisions of this paragraph shall not be construed as limiting the right of the enforcement officer to proceed as authorized by other provisions of KRS 217.542 to 217.630 . The department shall release the pesticide so withdrawn when the requirements of the provisions of KRS 217.542 to 217.630 have been complied with and upon payment of all costs and expenses incurred in connection with the withdrawal.

History. Enact. Acts 1956, ch. 218, § 9; 1974, ch. 200, § 11; 1980, ch. 295, § 57, effective July 15, 1980.

217.620. Seizure of pesticide.

Any lot of pesticide not in compliance with the provisions of KRS 217.542 to 217.630 shall be subject to seizure on complaint of the department to a court of competent jurisdiction in the county in which said pesticide is located. In the event the court finds the said pesticide to be in violation of KRS 217.542 to 217.630 and orders the condemnation of said pesticide it shall be disposed of in any manner consistent with the quality of the pesticide and the laws of the state; provided, that in no instance shall the disposition of said pesticide be ordered by the court without first giving the claimant an opportunity to apply to the court for release of said pesticide for permission to reprocess or relabel said product to bring it into compliance with KRS 217.542 to 217.630.

History. Enact. Acts 1956, ch. 218, § 10; 1974, ch. 200, § 12; 1980, ch. 295, § 58, effective July 15, 1980.

217.625. Pesticide Advisory Board.

The Commissioner of Agriculture may appoint a Pesticide Advisory Board to advise in the promulgation of regulations and the administration of this chapter.

History. Enact. Acts 1974, ch. 200, § 13; 1980, ch. 295, § 59, effective July 15, 1980.

217.630. Authority vested in department may be executed by employees of department.

All authority vested in the department by virtue of the provisions of KRS 217.542 to 217.630 may, with like force and effect, be executed by employees of the department.

History. Enact. Acts 1956, ch. 218, § 11; 1974, ch. 200, § 14; 1980, ch. 295, § 60, effective July 15, 1980.

217.640. Jurisdiction vested in department — Repealing clause.

Jurisdiction in all matters pertaining to the distribution, sale and transportation of pesticides is by KRS 217.542 to 217.640 vested exclusively in the department and all acts and parts of acts inconsistent with KRS 217.542 to 217.640 are hereby expressly repealed including the provisions of KRS 217.400 which cover economic poisons subject to KRS 217.542 to 217.640.

History. Enact. Acts 1956, ch. 218, § 13; 1974, ch. 200; 1978, ch. 384, § 68, effective June 17, 1978; 1980, ch. 188, § 217, effective July 15, 1980; 1980, ch. 295, § 61 effective July 15, 1980.

Legislative Research Commission Note.

This section was amended by two 1980 acts which do not appear to be in conflict and have been compiled together.

Labeling Hazardous Substances

217.650. Citation of KRS 217.650 to 217.710.

KRS 217.650 to 217.710 may be cited as the “Kentucky Hazardous Substances Labeling Act.”

History. Enact. Acts 1960, ch. 244, § 1.

217.660. Definitions for KRS 217.650 to 217.710.

As used in KRS 217.650 to 217.710 unless the context indicates otherwise:

  1. “Secretary” means the secretary for health and family services;
  2. “Cabinet” means the Cabinet for Health and Family Services;
  3. “Person” includes any individual, partnership, corporation, firm, or association;
  4. “Hazardous substance” means any substance or mixture of substances which is:
    1. “Toxic” and has the inherent capacity to produce bodily injury to man through ingestion, inhalation, or absorption through any body surface, including toxic substances which are poisonous;
    2. “Corrosive” on contact with living tissue causing substantial destruction of tissue by chemical action, but does not refer to action on inanimate surfaces;
    3. “Irritant” and not corrosive within the meaning of paragraph (b), which on immediate, prolonged, or repeated contact with normal living tissue will induce a local inflammatory reaction;
    4. “Strong sensitizer” and will cause on normal living tissue through an allergic or photodynamic process a hypersensitivity which becomes evident on reapplication of the same substance and which is designated as such by the secretary;
    5. “Flammable” with a flashpoint of eighty (80) degrees Fahrenheit or below;
    6. “Radioactive” as a result of disintegration of unstable atomic nuclei and emits energy;
    7. Capable of generating pressure through decomposition, heat, or other means;
    8. Capable of causing substantial personal injury or illness during any customary or reasonably anticipated handling or use; and
  5. “Label” means a display of written, printed, or graphic matter upon the immediate container of any substance, or that is easily legible through the outside container or wrapper.

History. Enact. Acts 1960, ch. 244, § 2; 1974, ch. 74, Art. VI; § 107 (1), (10) and (11); 1998, ch. 426, § 462, effective July 15, 1998; 2005, ch. 99, § 518, effective June 20, 2005.

217.670. Construction of term “misbranded.”

A hazardous substance is hereby declared to be misbranded when intended for household use if it fails to bear a label:

  1. Which states conspicuously:
    1. The name and place of business of the manufacturer, packer, or distributor;
    2. The common or usual name, or the chemical name (if there be no common or usual name), or the recognized generic name (not trade name only) of the hazardous substance or of each component which contributes substantially to its hazard;
    3. One (1) of the following signal words: “danger,” “warning,” or “caution”;
    4. When necessary, an affirmative statement of the principal hazard or hazards such as “flammable,” “vapor harmful,” “causes burns,” “absorbed through skin,” or similar wording descriptive of the hazard;
    5. Precautionary measures describing the action to be followed or avoided;
    6. Instructions, when necessary, for the first-aid treatment in case of contact or exposure if the substance is hazardous through contact or exposure;
    7. The word “poison” for any toxic substance which is defined as poisonous by the rules and regulations of the secretary under the provisions of KRS 217.650 to 217.710 ;
    8. Instructions for handling and storage of packages which require special care in handling or storage; and
    9. The statement “Keep out of reach of children” or its practical equivalent;
  2. On which any statements required under subsection (1) are not located prominently and are not in English in legible type in contrast by typography, layout, or color, with other printed matter on the label; provided, however, that the secretary may by regulations provide for minimum information which shall appear on the labels for small packages, which labels need not include all of the information required by this section; provided further, that the secretary may provide for less than the foregoing statement of the hazard or precautionary measures for labels of hazardous substances presenting only minor hazards; and a package shall not be deemed misbranded under the provisions of KRS 217.650 to 217.710 if it is a substance subject to the Federal Insecticide, Fungicide, and Rodenticide Act (61 Stat. 163, 7 U.S.C. secs. 135 et seq.); the Federal Food, Drug and Cosmetic Act (52 Stat. 1040 et seq., 21 U.S.C. secs. 301 et seq.); the Kentucky Pesticide Act (KRS 217.542 to 217.640 ); KRS 217.005 to 217.215 , or to packages or substances intended for use in agriculture or horticulture for industrial or related uses.

History. Enact. Acts 1960, ch. 244, § 3; 1974, ch. 74, Art. VI, § 107(22); 1980, ch. 188, § 218, effective July 15, 1980.

Compiler’s Notes.

The reference to 7 U.S.C. § 135 et seq. in subsection (2) is incorrect; those provisions have been omitted from the United States Code. Current provisions of the Federal Insecticide, Fungicide, and Rodenticide Act, as amended by the Federal Environmental Pesticide Control Act of 1972, are compiled as 7 USCS § 136 et seq.

217.680. Prohibited sales.

No person shall sell, offer for sale, distribute or transport for sale within this state in a package or container intended for general home and household use a hazardous substance which is misbranded.

History. Enact. Acts 1960, ch. 244, § 4.

217.690. Regulations.

The secretary shall adopt rules and regulations for the proper administration and enforcement of KRS 217.650 to 217.710 . The secretary may in his discretion adopt tests and standards for determination of toxic, poisonous, corrosive, irritant, flammable, and radioactive properties of any hazardous substance.

History. Enact. Acts 1960, ch. 244, § 5; 1974, ch. 74, Art. VI, § 107 (22).

Research References and Practice Aids

Cross-References.

Administrative regulations, KRS ch. 13A.

217.700. Duty of cabinet as to misbranded hazardous substance — Procedure — Costs — Bond.

  1. Whenever a duly authorized agent of the cabinet finds or has probable cause to believe that any hazardous substance is misbranded, within the meaning of KRS 217.650 to 217.710 , or is dangerous to public health he shall affix to such article a tag or other appropriate marking, giving notice that such article is, or is suspected of being, misbranded or dangerous to public health and has been detained or quarantined and warning all persons not to remove or dispose of such article by sale or otherwise until permission for removal or disposal is given by such agent or the court. It shall be unlawful for any person to remove or dispose of such detained or quarantined article by sale or otherwise without such permission.
  2. When an article detained or quarantined under subsection (1) has been found by such agent to be misbranded or dangerous to public health, he shall petition the judge of the District Court in whose jurisdiction the article is detained or quarantined for an order for condemnation of such article; provided, however, that nothing in this section shall require that the cabinet or its agent shall go to court if destruction of the quarantined article is accomplished by agreement made in writing with the owner of the property. When such agent has found that an article so detained or quarantined is not misbranded or dangerous to public health, he shall remove the tag or other marking.
  3. If the court finds that a detained or quarantined article is misbranded or dangerous to public health, such article shall, after entry of the order, be destroyed at the expense of the claimant thereof under the supervision of such agent, and all court costs and fees, and storage and other proper expenses, shall be taxed against the claimant of such article or his agent; provided, however, that if the quarantining of the article is due only to misbranding which can be corrected by proper labeling of the article, the court, after entry of the order and after such costs, fees, and expenses have been paid and a good and sufficient bond, conditioned that such article shall be so labeled has been executed, may by order direct that such article be delivered to the claimant thereof for such labeling under the supervision of an agent of the cabinet. The expense of such supervision shall be paid by the claimant. Such bond shall be returned to the claimant of the article on representation to the court by the cabinet that the article is no longer in violation of KRS 217.650 to 217.710 , and that the expenses of such supervision have been paid.

History. Enact. Acts 1960, ch. 244, § 6; 1976 (Ex. Sess.), ch. 14, § 208, effective January 2, 1978.

217.710. Notice may be given of intended criminal proceeding.

Before any violation of KRS 217.650 to 217.710 is reported to the Commonwealth’s, county or city attorney for institution of a criminal proceeding, the person against whom such proceeding is contemplated may be given appropriate notice and an opportunity to present his views to the cabinet, either orally or in writing, with regard to such contemplated proceeding. Nothing in KRS 217.650 to 217.710 shall be construed as requiring the cabinet to report for prosecution minor violations of KRS 217.650 to 217.710 whenever it believes that the public interest will be best served by a suitable notice of warning in writing.

History. Enact. Acts 1960, ch. 244, § 7, effective June 16, 1960.

217.720. Definitions for KRS 217.720 to 217.790. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 246, § 1; 1964, ch. 190, § 1) was repealed by Acts 1968, ch. 81, § 16.

217.721. Definitions generally. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 81, § 3) was repealed by Acts 1972, ch. 226, § 33.

Dangerous Drug Act of 1968

217.725. Dangerous drug defined. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 81, § 2; 1970, ch. 125, § 5) was repealed by Acts 1972, ch. 226, § 33.

217.730. Prohibited conduct. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 246, § 2; 1964, ch. 190, § 2) was repealed by Acts 1968, ch. 81, § 16.

217.731. Prohibited acts involving dangerous drugs. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 81, § 4; 1970, ch. 125, § 6) was repealed by Acts 1972, ch. 226, § 33.

217.735. Dispensation by pharmacists — Records. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 81, § 5) was repealed by Acts 1972, ch. 226, § 33.

217.740. Authorization for sale; conditions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 246, § 3) was repealed by Acts 1968, ch. 81, § 16.

217.741. Possession and dispensation by doctor — Records. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 81, § 6) was repealed by Acts 1972, ch. 226, § 33.

217.745. Possession and sale by manufacturers and wholesalers. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 81, § 7) was repealed by Acts 1972, ch. 226, § 33.

217.750. Authorization for possession by practitioner; conditions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 246, § 4) was repealed by Acts 1968, ch. 81, § 16.

217.751. Possession by private person. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 81, § 8) was repealed by Acts 1972, ch. 226, § 33.

217.755. Records, prescriptions to be kept three years. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 81, § 9) was repealed by Acts 1972, ch. 226, § 33.

217.760. To whom and for what purposes manufacturers and wholesalers may sell. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 246, § 5) was repealed by Acts 1968, ch. 81, § 16.

217.761. Administration of KRS 217.721 to 217.781 and 217.995. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 81, § 10) was repealed by Acts 1972, ch. 226, § 33.

217.765. Enforcement, duties of agencies — Powers. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 81, § 11) was repealed by Acts 1972, ch. 226, § 33.

217.770. Regulation of possession by private person. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 246, § 6) was repealed by Acts 1968, ch. 81, § 16.

217.771. Injunctions to restrain violations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 81, § 12) was repealed by Acts 1972, ch. 226, § 33.

217.775. Records of convictions forwarded to health department. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 81, § 13) was repealed by Acts 1972, ch. 226, § 33.

217.780. Administration of KRS 217.720 to 217.790. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 246, § 7) was repealed by Acts 1968, ch. 81, § 16.

217.781. Communications to obtain drug not privileged. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 81, § 14) was repealed by Acts 1972, ch. 226, § 33.

217.785. Short title. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 81, § 1) was repealed by Acts 1972, ch. 226, § 33.

217.790. Duties of administering agencies; powers of departmental employes. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 246, § 8) was repealed by Acts 1968, ch. 81, § 16.

Meat Inspection

217.800. Definitions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 1) was repealed by Acts 1972, ch. 110, § 1.

Lead-based Paint

217.801. Restrictions on sale and use of paint containing lead — Labeling.

  1. Paint manufactured after July 1, 1972, containing more than one-half of one percent (.5%) lead by weight of the nonvolatile content shall not be sold, or used on any toys, children’s furniture, interior surface of any dwelling, or any other surface easily accessible to children under the age of seven (7) years. Such paints shall not be manufactured, sold, or used for any other purpose which would ultimately result in exposure to children under the age of seven (7) years unless proper application and documentation is made to the Cabinet for Health and Family Services and the cabinet determines that no health hazard or danger to children exists from the intended use.
  2. All paints manufactured in this state after July 1, 1972, which will be used in this state will be clearly labeled as to use and hazard when containing more than one-half of one percent (.5%) lead by weight of the total nonvolatile content.
  3. The above provisions of subsections (1) and (2) of this section shall apply to all paints containing more than six one-hundredths of one percent (.06%) lead by weight of the total nonvolatile content after January 1, 1974.

History. Enact. Acts 1972, ch. 356, paras. (1), (2) and (4); 1974, ch. 74, Art. VI, § 107(1), (11); 1998, ch. 426, § 463, effective July 15, 1998; 2005, ch. 99, § 519, effective June 20, 2005.

217.803. Necessity for law. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 2) was repealed by Acts 1972, ch. 110, § 1.

217.807. Inspection and examination of animals before slaughter. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 3) was repealed by Acts 1972, ch. 110, § 1.

Food Vending Machines

217.808. Definitions for KRS 217.808 to 217.812.

The following terms shall have the meanings set forth below:

  1. “Vending machine” means any self-service or semi-self-service device which upon insertion of a coin, coins or tokens or by other similar means dispenses unit servings of food either in bulk or in packaged form.
  2. “Vending machine commissary” means any place operated by a vending machine company in which food or beverage is prepared for service to vending machines.
  3. “Vending machine company” means any individual, partnership, corporation, firm or association who by contract, agreement, or ownership, takes responsibility for furnishing, installing, servicing, operating, or maintaining one (1) or more vending machines.

History. Enact. Acts 1972, ch. 365, § 1.

Opinions of Attorney General.

In enacting this section and KRS 217.809 , 217.811 , 217.812 and subsection (8) of 217.990 , the General Assembly has preempted the field of control and licensing of food dispensing vending machines. OAG 72-445 .

217.809. Permits for vending machine companies — Expiration date — Regulations.

No person shall operate a vending machine company without having first obtained a permit to operate from the Cabinet for Health and Family Services as provided in the regulations of the Cabinet for Health and Family Services. All such permits shall expire on June 30 following the date of issue. The Cabinet for Health and Family Services shall adopt regulations relating to vending machines. KRS 217.808 to 217.812 do not apply to blind persons who operate vending machines as part of a program established by federal or state law.

History. Enact. Acts 1972, ch. 365, § 2; 1974, ch. 74, Art. VI, § 107(1), (3) and (11); 1998, ch. 426, § 464, effective July 15, 1998; 2005, ch. 99, § 520, effective June 20, 2005.

217.810. Inspection of carcasses — Stamping — Destruction for food of condemned carcasses. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 4) was repealed by Acts 1972, ch. 110, § 1.

217.811. Application and fee for permit — Exemptions.

  1. The cabinet shall promulgate administrative regulations to establish a fee that:
    1. Shall be the total of the operational and administrative costs of the programs to the cabinet and to agencies as defined in KRS 211.185 ;
    2. Beginning on March 17, 2020, until December 31, 2020, shall not increase more than twenty-five percent (25%) of the fee amount on March 17, 2020; and
    3. Beginning on or after January 1, 2021, shall not increase more than five percent (5%) for each year thereafter.
  2. The fee shall be paid with each application for permit to operate a vending machine company for each vending machine commissary plus a fee for the total number of vending machines operated by the applicant.
  3. Vending machines dispensing only bottled or canned soft drinks; prepackaged nonpotentially hazardous food; chewing gum, nuts, and/or candies shall be exempt from the permit and fee requirements of KRS 217.808 to 217.812 .

History. Enact. Acts 1972, ch. 365, § 3; 1982, ch. 247, § 12, effective July 15, 1982; 2018 ch. 136, § 13, effective July 1, 2019; 2020 ch. 21, § 9, effective March 17, 2020.

217.812. Fees credited to trust and agency fund — Use of funds.

All fees collected by the Cabinet for Health and Family Services under the provisions of KRS 217.808 to 217.812 shall be paid into the State Treasury and credited to a trust and agency fund to be used by the cabinet in defraying the costs and expenses of the cabinet in the administration of KRS 217.808 to 217.812 . Such funds may be expended for training of state and local sanitation personnel. The balance of this fund shall revert to the general fund of the Commonwealth at the end of each biennium.

History. Enact. Acts 1972, ch. 365, § 4; 1974, ch. 74, Art. VI, § 107(1), (11); 1982, ch. 247, § 13, effective July 15, 1982; 1998, ch. 426, § 465, effective July 15, 1998; 2005, ch. 99, § 521, effective June 20, 2005.

217.813. Animal carcasses subject to inspection — Time for — Restrictions on entry of meat into inspected premises. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 5) was repealed by Acts 1972, ch. 110, § 1.

Generic Drugs

217.814. Definitions for KRS 217.815 to 217.826.

The following words and phrases, as used in KRS 217.815 to 217.826 , shall have the following meanings, unless the context requires otherwise:

  1. “Biological product” has the same meaning as in 42 U.S.C. sec. 262 ;
  2. “Board” means the Kentucky Board of Pharmacy;
  3. “Brand name” means the name that a manufacturer of a drug or pharmaceutical places on the container thereof at the time of packaging;
  4. “Dosage formulation” shall include but not be limited to those specific dosage forms which, by the nature of their physical manufacture, are deemed to be nonequivalent to other similar formulations such as controlled-release tablets, aerosol-nebulizer drug delivery systems, and enteric-coated oral dosage forms;
  5. “Equivalent drug product” means a product with the same generic name, active ingredients, strength, quantity, and dosage form as the drug product identified in a prescription;
  6. “Generic name” means the chemical or established name of a drug or pharmaceutical;
  7. “Interchangeable biological product” means:
    1. A biological product that the United States Food and Drug Administration has licensed and determined meets the standards for interchangeability pursuant to 42 U.S.C. sec. 262(k)(4) ; or
    2. A biological product that the United States Food and Drug Administration has determined is therapeutically equivalent as set forth in the latest edition or supplement to the federal Food and Drug Administration’s Approved Drug Products with Therapeutic Equivalence Evaluations;
  8. “Nonequivalent drug product formulary” means a formulary of drugs, drug products, and dosage formulations for which there are no equivalent drugs, drug products, or dosage formulations and which have been determined to be noninterchangeable or to have actual or potential bioequivalency problems by the United States Food and Drug Administration and are contained in a drug bioequivalence problems list as published in the United States Food and Drug Administration publication entitled “Approved prescription drug products with therapeutic equivalence evaluations” with supplements;
  9. “Pharmacist” has the same meaning as in KRS 315.010 ; and
  10. “Practitioner” has the same meaning as in KRS 217.015 .

History. Enact. Acts 1972, ch. 126, § 1; 1982, ch. 399, § 1, effective July 15, 1982; 2003, ch. 51, § 2, effective June 24, 2003; 2016 ch. 73, § 1, effective July 15, 2016.

Research References and Practice Aids

Kentucky Law Journal.

Note: Making Changes: Generic Drug Labeling and the Case Against Federal Preemption, 98 Ky. L.J. 623 (2009/2010).

217.815. Practitioner may express professional opinion to patient.

Nothing in KRS 217.814 to 217.826 shall be construed to prevent a practitioner from informing a patient of his professional opinion as to the capabilities, effectiveness and acceptability of any drug.

History. Enact. Acts 1972, ch. 126, § 2.

217.816. Label for prescriptions — Exception.

Every prescription dispensed by a pharmacist in this Commonwealth after July 1, 1972, shall bear upon the label the name of the medication in the container unless the practitioner indicates in the manner of his choice on the prescription “Do Not Label.”

History. Enact. Acts 1972, ch. 126, § 3.

217.817. Inspectors to have access to meat processing establishments — Labeling of meats. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 6) was repealed by Acts 1972, ch. 110, § 1.

217.818. Kentucky drug formulary council established — Membership — Vacancies — Compensation. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 126, § 5; 1978, ch. 154, § 19, effective June 17, 1978) was repealed by Acts 1982, ch. 399, § 14, effective July 15, 1982.

217.819. Nonequivalent drug product formulary — Distribution and revision.

  1. The board shall prepare by regulation a nonequivalent drug product formulary of drugs with their generic names for which there are no equivalent drug products, and which should not be interchanged by pharmacists. The nonequivalent drug product formulary shall list all drugs, drug products, and dosage formulations that the United States Food and Drug Administration has determined to be therapeutically nonequivalent.
  2. The board shall provide for annual distribution of copies of such formulary and revisions and additions thereto among pharmacies licensed within the Commonwealth and shall supply a copy to any person on request upon payment of the price established by the board. Such formulary shall be revised and distributed as often as new and pertinent information on drugs, drug products, and dosage formulations becomes available from the United States Food and Drug Administration.

History. Enact. Acts 1972, ch. 126, § 6; 1982, ch. 399, § 2, effective July 15, 1982.

Opinions of Attorney General.

The Kentucky Drug Formulary Council need not consider the patent status of drugs when determining therapeutic equivalency for purposes of listing generic drugs in the Kentucky drug formulary. OAG 79-72 .

Research References and Practice Aids

Kentucky Law Journal.

Note, Consumer Protection and Prescription Drugs: The Generic Drug Substitution Laws, 67 Ky. L.J. 384 (1978-1979).

217.820. Labeling on meat and containers — Standards — Sale with false label prohibited — Approval of labels — Judicial review. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 7) was repealed by Acts 1972, ch. 110, § 1.

217.821. Judicial review.

Any person or party in interest aggrieved by the publication of the nonequivalent drug product formulary of the Board of Pharmacy shall be entitled to a judicial review in Franklin County Circuit Court.

History. Enact. Acts 1972, ch. 126, § 7; 1982, ch. 399, § 3, effective July 15, 1982.

217.822. Substitution of equivalent drug or interchangeable biological product — Substitute must be lower in price than prescribed drug or biological product — Selection by pharmacist not practice of medicine — Liability of pharmacist — Pharmacist to communicate to prescribing practitioner the specific biological product dispensed.

  1. When a pharmacist receives a prescription for a brand name drug which is not listed by generic name in the nonequivalent drug product formulary prepared by the board, the pharmacist shall select a lower-priced therapeutically equivalent drug which the pharmacist has in stock, unless otherwise instructed by the patient at the point of purchase or by the patient’s his practitioner. If a lower-priced selection is made, the label on the container of the drug shall show the name of the drug dispensed.
  2. When a pharmacist receives a prescription for a brand name biological product which is not listed by name in the nonequivalent drug product formulary prepared by the board, the pharmacist shall dispense a lower-priced interchangeable biological product, if there is one in stock, unless otherwise instructed by the patient at the point of purchase or by the patient’s prescribing practitioner. If an interchangeable product is selected, the label on the container shall show the name of the biological product dispensed.
  3. When an equivalent drug product or interchangeable biological product is dispensed in lieu of a brand name drug prescribed, the price of the equivalent drug or interchangeable biological product dispensed shall be lower in price to the purchaser than the drug product prescribed.
  4. If, in the opinion of a practitioner, it is to the best interest of the practitioner’s patient that an equivalent drug or interchangeable biological product should not be dispensed, the practitioner may indicate in the manner of his or her choice on the prescription “Do Not Substitute,” except that the indication shall not be preprinted on a prescription.
  5. The selection of any drug or interchangeable biological product by a pharmacist under the provisions of this section shall not constitute the practice of medicine.
  6. A pharmacist who selects an equivalent drug product or interchangeable biological product pursuant to KRS 217.815 to 217.826 assumes no greater liability for selecting the dispensed drug product than would be incurred in dispensing a prescription for a drug product or biological product prescribed by its generic, nonbrand, or proper name.
  7. When a pharmacist receives a generically written prescription for a multiple source drug product, he or she shall dispense an equivalent drug product in accordance with the provisions of KRS 217.815 to 217.826 .
  8. When a pharmacist receives a prescription for a biological product written by nonbrand or proper name, he or she shall dispense an interchangeable biological product in accordance with the provisions of KRS 217.814 to 217.826 , provided that the interchangeable product has been deemed by the United States Food and Drug Administration to be interchangeable with that specific reference product as identified by the nonbrand or proper name.
  9. A pharmacist shall not substitute a biological product for a prescribed biological product unless the substituted product is an interchangeable biological product for the prescribed biological product.
    1. Within five (5) business days following the dispensing of a biological product, the dispensing pharmacist or the pharmacist’s designee shall communicate to the prescribing practitioner the specific product provided to the patient, including the name of the product and the manufacturer. (10) (a) Within five (5) business days following the dispensing of a biological product, the dispensing pharmacist or the pharmacist’s designee shall communicate to the prescribing practitioner the specific product provided to the patient, including the name of the product and the manufacturer.
    2. Communication shall be conveyed by making an entry that is electronically accessible to the prescribing practitioner through:
      1. An interoperable electronic medical records system;
      2. An electronic prescribing technology;
      3. A pharmacy benefit management system; or
      4. A pharmacy record.
    3. Communication entries into an electronic records system as described in this subsection are presumed to provide notice to the prescribing practitioner. Otherwise, the pharmacist shall communicate the biological product dispensed to the prescribing practitioner using facsimile, telephone, electronic transmission, or other prevailing means. Communication to the prescribing practitioner, or the prescribing practitioner’s office personnel, using facsimile, telephone, electronic transmission, or other prevailing means shall be presumed to provide notice to the prescribing practitioner.
    4. Communication shall not be required where:
      1. There is no United States Food and Drug Administration-approved interchangeable biological product for the product prescribed;
      2. A refill prescription is not changed from the product dispensed on the prior filling of the prescription; or
      3. The prescribing practitioner indicates “Do Not Substitute” on the prescription.
    5. Communication received by the prescribing practitioner from the dispensing pharmacist or the pharmacist’s designee shall be treated in accordance with the standards of acceptable and prevailing practice of the prescribing practitioner within the Commonwealth of Kentucky and the following as they relate to patient records:
      1. The principles of ethics of the American Medical Association;
      2. The code of ethics of the American Osteopathic Association;
      3. The principles of ethics and code of professional conduct of the American Dental Association;
      4. The code of ethics of the American Chiropractic Association;
      5. The principles of veterinary medical ethics of the American Veterinary Medical Association;
      6. The code of ethics of the American Optometric Association; or
      7. The code of ethics for nurses of the American Nurses Association.

History. Enact. Acts 1972, ch. 126, § 8; 1976, ch. 274, § 2; 1982, ch. 399, § 4, effective July 15, 1982; 2016 ch. 73, § 2, effective July 15, 2016.

Notes to Unpublished Decisions

1.Negligence.

Unpublished decision: Summary judgment for a pharmacy was proper in a customer’s tort suit because the evidence showed the pharmacy did not breach its duty to dispense the correct medication according to the prescribing doctor’s instructions, it was authorized by KRS 217.822 to dispense a generic, and it was a “middleman” retailer protected by KRS 411.340 . Flint v. Target Corp., 362 Fed. Appx. 446, FED App. 0037N, U.S. App. LEXIS 1409 (6th Cir. Ky.), cert. denied, 562 U.S. 889, 131 S. Ct. 227, 178 L. Ed. 2d 135, 2010 U.S. LEXIS 7051 (U.S. 2010).

Unpublished decision: Summary judgment for a pharmacy was proper in a customer’s tort suit because the evidence showed the pharmacy did not breach its duty to dispense the correct medication according to the prescribing doctor’s instructions, it was authorized by KRS 217.822 to dispense a generic, and it was a “middleman” retailer protected by KRS 411.340 . Flint v. Target Corp., 362 Fed. Appx. 446, FED App. 0037N, U.S. App. LEXIS 1409 (6th Cir. Ky.), cert. denied, 562 U.S. 889, 131 S. Ct. 227, 178 L. Ed. 2d 135, 2010 U.S. LEXIS 7051 (U.S. 2010).

Opinions of Attorney General.

Under subsection (2) of this section a physician may indicate in any manner he chooses that a generic equivalent drug should not be substituted; however, the last act in so indicating should be completed at the time of issuing and writing the prescription and this would of course permit a form to have preprinted on it “Do Not Substitute” with a box and blank for the physician to indicate whether it is appropriate in the particular case. OAG 76-758 .

If a prescription involves a medical assistance patient, the pharmacist will not be able to recover any amount over and above the “MAC” price unless the physician indicates that there is to be no substitution in his own handwriting; thus, where medical assistance patients are concerned, a physician is required to do more than it is normally necessary when indicating that substitution is inappropriate for not only must he indicate it, he must indicate it in his own handwriting. OAG 76-758 , 77-223.

Any abbreviation, phrase, clause or statement which is generally known throughout the medical and pharmaceutical professions as meaning “Do Not Substitute” would be sufficient to indicate to the pharmacist that there is to be no substitution of a generic equivalent drug. OAG 77-248 .

The abbreviation “DNS” is sufficient to indicate to the pharmacist that there is to be no substitution of a generic equivalent drug and a pharmacist would not be authorized to substitute a generic equivalent drug if the physician indicated on his prescription that there was to be no substitution by checking a box at the side of a preprinted abbreviation “DNS,” but this would not authorize a pharmacist to receive over and above the “MAC” price on a prescription for a medical assistance patient since the prescription for the medical assistance patient requires more of the physician in that he must write the abbreviation “DNS” in his own handwriting. OAG 77-248 .

Pharmacists are required to substitute only those therapeutically equivalent drugs listed in the formulary which they have in stock; the Kentucky Drug Formulary Act (KRS 217.815 to 217.826 ) does not require pharmacists to sell a therapeutically equivalent drug in violation of a patent, since they need not stock infringing drugs or pharmaceuticals. OAG 79-72 .

No pharmacist may legally substitute a drug which is not listed on the Kentucky drug formulary. OAG 80-165 .

When a pharmacist participating in the medical assistance program is presented a prescription for a drug not listed on the Kentucky drug formulary, the pharmacist has the following legal alternatives: (1) charge the patient the usual and customary price to the public for the drug and accept as payment in full the amount received from the patient; (2) bill only the department (now cabinet) for human resources and be reimbursed for the lowest of the maximum allowable cost, the acquisition cost or the usual charge to the public for the drug; or (3) decline to fill the prescription. OAG 80-165 .

The enactment of KRS 217.830 in essence amended by implication this section insofar as requiring the dispensing of the lowest, as opposed to lower, priced therapeutically equivalent drug in a pharmacist’s stock. OAG 89-33 .

Research References and Practice Aids

Kentucky Law Journal.

Comments, Precomplaint Investigations Under the Kentucky Consumer Protection Act: Validity and Scope of the Civil Investigation Demand, 65 Ky. L.J. 169 (1976-77).

Note, Consumer Protection and Prescription Drugs: The Generic Drug Substitution Laws, 67 Ky. L.J. 384 (1978-1979).

217.823. Inspection of premises for sanitation — Regulations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 8) was repealed by Acts 1972, ch. 110, § 1.

217.824. Council to adopt bylaws — Staff — Chairman’s term — Attached to department for human resources. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 126, § 10) was repealed by Acts 1982, ch. 399, § 14, effective July 15, 1982.

217.825. Legislative intent.

It is the intent of the General Assembly that all citizens of Kentucky may be assured of high quality medicine at a reasonable cost.

History. Enact. Acts 1972, ch. 126, § 11.

Research References and Practice Aids

Kentucky Law Journal.

Note, Consumer Protection and Prescription Drugs: The Generic Drug Substitution Laws, 67 Ky. L.J. 384 (1978-1979).

217.826. Basis for reimbursement when substitution forbidden.

Whenever a drug has been prescribed with the indication “Do Not Substitute” for a patient who has a contract whereunder he is reimbursed for the costs of health care, then the party that has contracted to reimburse the patient shall make the reimbursement on the basis of the brand name price and not on the basis of the generic drug price.

History. Enact. Acts 1972, ch. 126, § 13.

217.827. Inspection in nighttime as well as daytime. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 9) was repealed by Acts 1972, ch. 110, § 1.

217.830. Pharmacy required to post sign concerning dispensing of lowest priced generic drug.

Every pharmacy shall post a sign in a location easily seen by patrons at the counter where prescriptions are dispensed stating that: “This pharmacy is required to dispense the lowest priced generic drug in stock which is therapeutically equivalent to the one prescribed for you by your doctor unless you or your doctor do not approve. Ask your pharmacist.” The printing on the sign shall be in letters not less than one (1) inch in height.

History. Enact. Acts 1986, ch. 433, § 5, effective July 15, 1986.

Compiler’s Notes.

Former KRS 217.830 (Enact. Acts 1968, ch. 205, § 10) was repealed by Acts 1972, ch. 110, § 1.

Opinions of Attorney General.

The enactment of this section, in essence, amended by implication 217.822 insofar as requiring the dispensing of the lowest, as opposed to lower, priced therapeutically equivalent drug in a pharmacist’s stock. OAG 89-33 .

217.833. Forging, possession or use of false official device, mark or certificate, or misrepresentation, prohibited. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 11) was repealed by Acts 1972, ch. 110, § 1.

217.837. Horse meat not to be sold without label — Place of preparation may be regulated. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 12) was repealed by Acts 1972, ch. 110, § 1.

217.840. Inspectors, appointment, duties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 13) was repealed by Acts 1972, ch. 110, § 1.

217.843. Bribe or gift to influence inspector, giving or accepting, penalty. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 14) was repealed by Acts 1972, ch. 110, § 1.

217.847. Inspection not required for animals slaughtered for owner’s use or by retailers — Sanitation regulations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 15) was repealed by Acts 1972, ch. 110, § 1.

217.850. Regulations for storage and handling before delivery to consumer. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 16) was repealed by Acts 1972, ch. 110, § 1.

217.853. Meat not intended for human food not subject to inspection — Regulations as to identification. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 17) was repealed by Acts 1972, ch. 110, § 1.

217.857. Persons and firms required to keep records. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 18) was repealed by Acts 1972, ch. 110, § 1.

217.860. Registration required for meat brokers, renderers, animal food manufacturers or wholesalers. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 19) was repealed by Acts 1972, ch. 110, § 1.

217.863. Regulations for buying, selling, transporting dead, injured, or diseased animals. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 20) was repealed by Acts 1972, ch. 110, § 1.

217.867. Department of agriculture to cooperate with federal government — Acceptance of funds. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 21) was repealed by Acts 1972, ch. 110, § 1.

217.870. Withdrawal of inspection — Hearing — Judicial review. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 22) was repealed by Acts 1972, ch. 110, § 1.

217.873. Detention of animal carcass on reason to believe it adulterated, misbranded or not inspected. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 23) was repealed by Acts 1972, ch. 110, § 1.

217.877. Condemnation of carcass transported in violation of law — Destruction — Bond. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 24) was repealed by Acts 1972, ch. 110, § 1.

217.880. Circuit court may enforce law. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 25) was repealed by Acts 1972, ch. 110, § 1.

217.883. Powers of commissioner in administering law; attendance of witnesses; fees; contempt; reports confidential. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 28 (1) to (3)) was repealed by Acts 1972, ch. 110, § 1.

217.887. Commissioner may ignore minor violations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 27 (2)) was repealed by Acts 1972, ch. 110, § 1.

217.890. Applicability to persons and animals subject to federal act. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 29) was repealed by Acts 1972, ch. 110, § 1.

217.893. Title of law. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, § 31) was repealed by Acts 1972, ch. 110, § 1.

217.894. Sign required notifying public that pharmacy is required to dispense lowest priced generic drug. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 274, § 1) was repealed by Acts 1982, ch. 399, § 14, effective July 15, 1982.

217.895. Inspections — Records of pharmacy.

  1. Routine inspections of pharmacies for compliance with KRS 217.815 to 217.826 shall be undertaken by the Kentucky Board of Pharmacy.
  2. Every pharmacy shall retain for a period of two (2) years from July 15, 1982, a pharmacy record of all prescribed drug and biological products dispensed. The pharmacy record shall be retained for the purpose of providing valid data for bona fide research and reporting to the General Assembly as to the effectiveness of KRS 217.815 to 217.826 . The pharmacy record shall include:
    1. The brand name of the drug or biological product, when applicable.
    2. The name of the manufacturer or the supplier of the drug or biological product, if the drug or biological product has no brand name.
    3. The strength of the drug or biological product, when significant.
    4. The quantity dispensed, when applicable.
    5. The serial number of the prescription.
    6. The date the prescription was originally dispensed and refilled.
    7. The name of prescribing practitioner.
    8. The name of patient for whom the drug or biological product was prescribed.
    9. The price for which the drug or biological product was sold to the purchaser.
    10. A notation if the practitioner indicated “Do not substitute” or the purchaser refused the product selected.

History. Enact. Acts 1982, ch. 399, § 5, effective July 15, 1982; 2016 ch. 73, § 4, effective July 15, 2016.

217.896. Distribution of explanatory pamphlet for citizens of Commonwealth.

The Division of Consumer Protection of the Office of the Attorney General shall develop and distribute to licensed pharmacies without charge a pamphlet for citizens of the Commonwealth which explains the provisions of KRS 217.815 to 217.826 and 217.895 . Pharmacists shall display such distributed pamphlets in a prominent place and make them available without charge. Pharmacies shall maintain a sufficient stock of the distributed pamphlets to assure that the supply will not become exhausted for any lengthy time.

History. Enact. Acts 1982, ch. 399, § 6, effective July 15, 1982.

Volatile Substances

217.900. Volatile substance defined — Inhalation unlawful.

  1. As used in this section, “volatile substance” means any glue, cement, or paint or other substance containing a solvent or chemical having the property of releasing toxic vapors or fumes which when inhaled may cause a condition of intoxication, inebriation, stupefaction, dulling of the brain or nervous system, or distortion or disturbance of the auditory, visual, or mental processes.
  2. It shall be unlawful for any person to intentionally smell or inhale the fumes of any volatile substance, or to induce any other person to do so for the purpose of inducing a condition described in subsection (1) of this section.
  3. No person shall intentionally sell or offer for sale, deliver or give any volatile substance to any person for purposes of inhalation in violation of subsection (2) of this section.

History. Enact. Acts 1980, ch. 138, § 1, effective July 15, 1980.

Research References and Practice Aids

Northern Kentucky Law Review.

Notes, Williams by Williams v. Ellington: Strip Searches in Public Schools — Too Many Unanswered Questions, 19 N. Ky. L. Rev. 513 (1992).

217.902. Repackaging volatile substances.

When any person removes any volatile substance from the container in which it is delivered to him and repackages it into containers not used in the ordinary course of business for the purpose of packaging such volatile substances and for the purpose of sale, a rebuttable presumption will be created that he intends to sell such substances for purposes prohibited by KRS 217.900 .

History. Enact. Acts 1980, ch. 138, § 3, effective July 15, 1980.

Legend Drugs

217.905. Definitions.

As used in KRS 217.907 to 217.917 :

  1. “Legend drug” means any drug defined by the Federal Food, Drug and Cosmetic Act, as amended, and under which definition its label is required to bear the statement “Caution: Federal law prohibits dispensing without prescription.”
  2. “Distributor” means any person, corporation, or other entity which distributes for resale a legend drug under its own label even though it is not the actual manufacturer of the legend drug.
  3. “Solid dosage form” means capsules, tablets, or similar legend drug products intended for oral administration.
  4. “Board” means the Kentucky Board of Pharmacy.

History. Enact. Acts 1982, ch. 5, § 1, effective July 15, 1982.

Compiler’s Notes.

The federal Food, Drug and Cosmetic Act, referred to in subdivision (1) of this section, is compiled as 21 USCS § 301 et seq.

217.907. Legend drugs to be imprinted with identifying symbol.

No legend drug in finished solid dosage form may be manufactured or distributed within the Commonwealth unless it has clearly and prominently marked or imprinted on it an individual symbol, number, company name, words, letters, marking, National Drug Code, or any combination thereof, identifying the drug product and the manufacturer or distributor of the drug product.

History. Enact. Acts 1982, ch. 5, § 2, effective July 15, 1982.

217.909. Descriptive material identifying imprints to be available to board.

Manufacturers or distributors shall make available to the board, upon the board’s request, descriptive material which will identify each current imprint used by the manufacturer or distributor on legend drugs in solid dosage form.

History. Enact. Acts 1982, ch. 5, § 3, effective July 15, 1982.

217.911. Exemption of drugs because of size or unique characteristics.

The board may exempt a particular drug product from the requirements of KRS 217.907 , upon application of a manufacturer or distributor showing that the drug product’s size, texture, or other unique characteristics render imprinting impractical or impossible.

History. Enact. Acts 1982, ch. 5, § 4, effective July 15, 1982.

217.913. Exemption of drugs compounded in a pharmacy.

The provisions of KRS 217.907 to 217.917 shall not apply to drug products compounded by a pharmacist licensed pursuant to KRS Chapter 315, in a pharmacy operating under a permit as required by KRS 315.035 .

History. Enact. Acts 1982, ch. 5, § 5, effective July 15, 1982.

217.915. Seizure and forfeiture of drugs not properly imprinted.

All legend drugs in solid dosage form that are possessed, distributed, sold or offered for sale in violation of the provisions of KRS 217.907 to 217.917 shall be deemed contraband and shall be seized by the board and forfeited to the state.

History. Enact. Acts 1982, ch. 5, § 6, effective July 15, 1982.

217.917. Regulations.

The board shall promulgate regulations implementing the provisions of KRS 217.907 to 217.915 .

History. Enact. Acts 1982, ch. 5, § 7, effective July 15, 1982.

Research References and Practice Aids

Cross-References.

Administrative regulations, KRS Chapter 13A.

217.919. Applicability of KRS 217.907 to 217.917 and 217.990(12).

The provisions of KRS 217.907 to 217.917 and 217.990(12) shall not apply to drug products manufactured prior to July 1, 1983.

History. Enact. Acts 1982, ch. 5, § 9, effective July 15, 1982.

Tanning

217.920. Definitions for KRS 217.920 to 217.928.

As used in KRS 217.920 to 217.928 , unless the context requires otherwise:

  1. “Cabinet” means the Cabinet for Health and Family Services;
  2. “Tanning device” means any equipment that emits radiation used for tanning of the skin, such as a sun lamp, tanning booth, or tanning bed, and includes any accompanying equipment, such as protective eyewear, timers, and handrails; and
  3. “Tanning facility” means any place where a tanning device is used for a fee, membership dues, or other compensation.

History. Enact. Acts 2006, ch. 103, § 1, effective July 12, 2006.

217.922. Consent required for minor using tanning device or facility.

  1. Before any person who has reached his or her fourteenth birthday and has not passed his or her eighteenth birthday uses a tanning device, he or she shall give the tanning facility a statement, signed by his or her parent or legal guardian, stating that the parent or legal guardian has read and understood the warnings given by the tanning facility, and that they consent to the minor’s use of the tanning device and agree that the minor will use protective eyewear. This parental consent is valid for one (1) calendar year.
  2. A person under the age of fourteen (14) shall be accompanied by a parent or legal guardian when using a tanning device.

History. Enact. Acts 2006, ch. 103, § 2, effective July 12, 2006.

217.924. Requirements for tanning facilities.

  1. A tanning facility shall give each customer a written statement pursuant to 21 C.F.R. 1040.20. The written statement shall include warnings stating that:
    1. Failure to use eye protection provided to the customer by the tanning facility may result in damage to the eyes;
    2. Overexposure to ultraviolet light causes burns;
    3. Repeated exposure may result in premature aging of the skin and skin cancer;
    4. Abnormal skin sensitivity or burning may be caused by reactions of the following to ultraviolet light:
      1. Food;
      2. Cosmetics; or
      3. Medications, including but not limited to:
        1. Tranquilizers;
        2. Diuretics;
        3. Antibiotics;
        4. High blood pressure medicines; or
        5. Birth control pills;
    5. Any person taking a prescription or over-the-counter drug should consult a physician before using a tanning device.
  2. Each tanning facility shall:
    1. Maintain the written or electronic consent forms of the parents or guardians for a period of not less than two (2) years, and make the forms available to cabinet personnel for inspection upon request; and
    2. Make written or electronic records showing the dates and duration of use of a tanning device at the tanning facility by children fourteen (14) years of age to eighteen (18) years of age, maintain those records for a period of not less than two (2) years, and make the records available for cabinet or health department personnel for inspection upon request.
  3. All indoor tanning facilities shall register with the local health department in the district or county in which the facility is operating. Registration shall be valid for one (1) year and applicants shall pay a fee that shall not exceed administrative costs of the program, to the district or county health department.

History. Enact. Acts 2006, ch. 103, § 3, effective July 12, 2006; 2018 ch. 136, § 14, effective July 1, 2019.

217.926. Cabinet to promulgate administrative regulations governing KRS 217.920 to 217.928.

The cabinet shall promulgate administrative regulations as follows:

  1. Develop a strategy to monitor compliance with 21 C.F.R. 1040.20;
  2. Develop forms to assist tanning facilities with recordkeeping regarding parental consent, frequency of use by children fourteen (14) to eighteen (18) years of age, and other forms as needed to implement KRS 217.920 to 217.928 ; and
  3. Create penalties for violating provisions of KRS 217.920 to 217.928 .

History. Enact. Acts 2006, ch. 103, § 4, effective July 12, 2006.

217.928. Administrative hearings conducted under KRS 217.920 to 217.928.

Any administrative hearing conducted under KRS 217.920 to 217.928 shall be conducted in accordance with KRS Chapter 13B.

History. Enact. Acts 2006, ch. 103, § 5, effective July 12, 2006.

Hyperbaric Oxygen Therapy

217.930. Definitions for KRS 217.930 to 217.942.

As used in KRS 217.930 to 217.942 :

  1. “Eligible patient” means a veteran who meets the requirements of KRS 217.934 ;
  2. “Health care provider” means a licensed physician, a licensed advanced practice registered nurse, or a licensed physician assistant;
  3. “Health facility” has the same meaning as in KRS 216B.015 ;
  4. “Hyperbaric oxygen therapy” or “HBOT” means inhalation of one hundred percent (100%) oxygen in a total body chamber, where atmospheric pressure is increased and controlled, applicable to the prevention, treatment, or cure of a disease or condition of human beings;
  5. “Traumatic brain injury” has the same meaning as in KRS 211.470 ;
  6. “Veteran” has the same meaning as in KRS 40.010 ; and
  7. “Written informed consent” means a written document that meets the requirements of KRS 217.936 .

HISTORY: 2018 ch. 14, § 1, effective July 14, 2018.

Legislative Research Commission Notes.

(7/14/2018). 2018 Ky. Acts ch. 14, sec. 8, provides that 2018 Ky. Acts ch. 14 may be known as the “Colonel Ron Ray Veterans Traumatic Brain Injury Treatment Act.” This statute was created in Section 1 of that Act.

217.932. Health care provider or health facility to provide hyperbaric oxygen therapy to eligible patients upon request.

  1. A health care provider or health facility shall make hyperbaric oxygen therapy available to an eligible patient who has requested it pursuant to KRS 217.930 to 217.942 .
  2. The health care provider or health facility may:
    1. Provide hyperbaric oxygen therapy without receiving compensation; or
    2. Require an eligible patient to pay the costs of or the costs associated with hyperbaric oxygen therapy.

HISTORY: 2018 ch. 14, § 2, effective July 14, 2018.

Legislative Research Commission Notes.

(7/14/2018). 2018 Ky. Acts ch. 14, sec. 8, provides that 2018 Ky. Acts ch. 14 may be known as the “Colonel Ron Ray Veterans Traumatic Brain Injury Treatment Act.” This statute was created in Section 2 of that Act.

217.934. Veterans are eligible patients — Criteria.

A veteran shall be an eligible patient for hyperbaric oxygen therapy if he or she has:

  1. A diagnosis of traumatic brain injury that is attested to by the patient’s treating health care provider;
  2. A prescription for hyperbaric oxygen therapy written by his or her treating health care provider; and
  3. Given written informed consent for the use of HBOT in accordance with KRS 217.936 .

HISTORY: 2018 ch. 14, § 3, effective July 14, 2018.

Legislative Research Commission Notes.

(7/14/2018). 2018 Ky. Acts ch. 14, sec. 8, provides that 2018 Ky. Acts ch. 14 may be known as the “Colonel Ron Ray Veterans Traumatic Brain Injury Treatment Act.” This statute was created in Section 3 of that Act.

217.936. Written informed consent required for hyperbaric oxygen therapy treatment.

  1. A veteran or a veteran’s legal guardian shall provide written informed consent for treatment with hyperbaric oxygen therapy in order to receive HBOT to treat traumatic brain injury.
  2. At a minimum, the written informed consent shall include:
    1. An explanation of the currently approved products and treatments for the traumatic brain injury from which the veteran suffers;
    2. A description of the potentially best and worst outcomes of using hyperbaric oxygen therapy and a realistic description of the most likely outcome;
    3. A statement that the veteran’s health plan or third-party administrator and provider shall not be obligated to pay for any care or treatments consequent to the use of hyperbaric oxygen therapy unless they are specifically required to do so by law or contract; and
    4. A statement that the veteran understands that the patient shall be liable for all expenses related to the use of hyperbaric oxygen therapy.
  3. The description of potential outcomes required under subsection (2)(b) of this section shall:
    1. Include the possibility that new, unanticipated, different, or worse symptoms may result and that the proposed treatment may hasten death; and
    2. Be based on the treating health care provider’s knowledge of the proposed treatment in conjunction with an awareness of the veteran’s condition.
  4. The written informed consent shall be:
    1. Signed by:
      1. The veteran; or
      2. A legal guardian, if a guardian has been appointed for the veteran; and
    2. Attested to by the veteran’s treating health care provider and a witness.

HISTORY: 2018 ch. 14, § 4, effective July 14, 2018.

Legislative Research Commission Notes.

(7/14/2018). 2018 Ky. Acts ch. 14, sec. 8, provides that 2018 Ky. Acts ch. 14 may be known as the “Colonel Ron Ray Veterans Traumatic Brain Injury Treatment Act.” This statute was created in Section 4 of that Act.

217.938. Insurance coverage for hyperbaric oxygen therapy.

  1. KRS 217.930 to 217.942 shall not:
    1. Expand the coverage required of an insurer;
    2. Affect the requirements for insurance coverage of routine patient costs for veterans involved in hyperbaric oxygen therapy;
    3. Require a health plan, third-party administrator, or governmental agency to pay costs associated with the use of hyperbaric oxygen therapy; or
    4. Require a hospital or health facility to provide new or additional services.
  2. A health plan, third-party administrator, or governmental agency may provide coverage for the cost of hyperbaric oxygen therapy under KRS 217.930 to 217.942 .
  3. A hospital or health facility may approve the use of hyperbaric oxygen therapy in the hospital or health facility.

HISTORY: 2018 ch. 14, § 5, effective July 14, 2018.

Legislative Research Commission Notes.

(7/14/2018). 2018 Ky. Acts ch. 14, sec. 8, provides that 2018 Ky. Acts ch. 14 may be known as the “Colonel Ron Ray Veterans Traumatic Brain Injury Treatment Act.” This statute was created in Section 5 of that Act.

217.940. Actions prohibited to be taken against health care provider regarding hyperbaric oxygen therapy.

  1. A licensing board shall not revoke, fail to renew, suspend, or take any action against a licensed health care provider based solely on the health care provider’s recommendations to an eligible patient regarding access to or treatment with hyperbaric oxygen therapy.
  2. The Cabinet for Health and Family Services shall not take action against a health care provider’s Medicare or Medicaid certification based solely on the health care provider’s recommendation that an eligible patient have access to hyperbaric oxygen therapy.

HISTORY: 2018 ch. 14, § 6, effective July 14, 2018.

Legislative Research Commission Notes.

(7/14/2018). 2018 Ky. Acts ch. 14, sec. 8, provides that 2018 Ky. Acts ch. 14 may be known as the “Colonel Ron Ray Veterans Traumatic Brain Injury Treatment Act.” This statute was created in Section 6 of that Act.

217.942. State official, employee, or agent prohibited from blocking access to hyperbaric oxygen therapy.

  1. An official, employee, or agent of the Commonwealth of Kentucky shall not block or attempt to block an eligible patient’s access to hyperbaric oxygen therapy.
  2. Counseling, advice, or a recommendation consistent with medical standards of care from a licensed health care provider shall not be considered a violation of subsection (1) of this section.

HISTORY: 2018 ch. 14, § 7, effective July 14, 2018.

Legislative Research Commission Notes.

(7/14/2018). 2018 Ky. Acts ch. 14, sec. 8, provides that 2018 Ky. Acts ch. 14 may be known as the “Colonel Ron Ray Veterans Traumatic Brain Injury Treatment Act.” This statute was created in Section 7 of that Act.

Laetrile

217.950. License for manufacture of laetrile — Regulations — Use in health care facilities licensed by cabinet. [Repealed]

History. Enact. Acts 1980, ch. 354, § 7, effective July 15, 1980; 1998, ch. 426, § 466, effective July 15, 1998; 2005, ch. 99, § 522, effective June 20, 2005; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 354, § 7, effective July 15, 1980) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

217.952. Laetrile not to be sold in interstate commerce, penalty. [Repealed]

History. Enact. Acts 1980, ch. 354, § 8, effective July 15, 1980; repealed by 2017 ch. 80, § 58, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1980, ch. 354, § 8, effective July 15, 1980) was repealed by Acts 2017, ch. 80, § 58, effective June 29, 2017.

Penalties

217.990. Penalties.

  1. Any person who violates any of the provisions of KRS 217.350 shall be fined not more than twenty-five dollars ($25).
  2. Any person who violates any of the provisions of subsection (2) of KRS 217.390 shall be fined not less than ten dollars ($10) nor more than one hundred dollars ($100), or imprisoned for not more than fifty (50) days, or both.
  3. Except as provided in subsections (1) and (2) of this section, any person who violates any of the provisions of KRS 217.280 to 217.390 or who refuses to comply with any lawful order or requirement duly made in writing as provided in KRS 217.380 , shall, for the first offense, be fined not less than ten dollars ($10) nor more than one hundred dollars ($100), or imprisoned for not more than thirty (30) days, or both, and for any subsequent offense shall be fined not less than fifty dollars ($50) nor more than two hundred dollars ($200), or imprisoned for not more than ninety (90) days, or both. Each day after the expiration of the time limit for abating unsanitary conditions and completing improvements to abate such conditions, as ordered under KRS 217.380 , shall be a separate offense.
  4. Any person who violates any of the provisions of KRS 217.400 shall be fined not less than ten dollars ($10) nor more than one hundred dollars ($100).
  5. Any person who violates any of the provisions of KRS 217.420 to 217.440 shall be fined not less than two hundred dollars ($200) nor more than one thousand dollars ($1,000), or imprisoned in the county jail for not more than one (1) year, or both.
  6. Any person who violates any of the provisions of KRS 217.450 shall be fined one hundred dollars ($100).
  7. Any person who violates any provision of KRS 217.801 shall be fined not less than fifty dollars ($50) nor more than five hundred dollars ($500) or imprisoned for not less than thirty (30) days nor more than six (6) months, or both.
  8. Any person who violates any of the provisions of KRS 217.808 to 217.812 , or any rule or regulation adopted thereunder, or who operates a vending machine company or vending machine commissary without a permit as prescribed in KRS 217.808 to 217.812 , or who fails to comply with any order of the cabinet or of any local health department issued pursuant thereto shall be fined not less than twenty-five dollars ($25) nor more than one hundred dollars ($100). Each day of violation or noncompliance shall constitute a separate offense.
  9. Willful noncompliance with KRS 217.816 shall constitute a violation and shall subject the violator to a fine of not over fifty dollars ($50) for the first offense and not over two hundred dollars ($200) for a subsequent offense.
  10. Any person who willfully fails to comply with the provisions of KRS 217.816 to 217.826 shall be guilty of a violation and shall be subject to a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500) for each violation.
  11. Any person who violates any of the provisions of KRS 217.177 shall be fined not less than twenty-five dollars ($25) nor more than five hundred dollars ($500) or be imprisoned in the county jail for not less than five (5) nor more than thirty (30) days, or both.
  12. Any manufacturer or distributor who dispenses, sells, or otherwise provides to any other person any legend drug in solid dosage form that fails to comply with the requirements of KRS 217.907 to 217.915 shall be fined not less than one hundred dollars ($100) nor more than five hundred dollars ($500) for each offense.

History. 1276, 1282, 1283a-3, 1905a-60-6, 1905a-60c, 1905a-68, 2060, 2060b-8, 2060b-12, 2060b-13, 2630, 2635a-1, 2635b-5: amend. Acts 1944, ch. 153, § 6; 1950, ch. 65, § 10; 1954, ch. 158, § 2; 1958, ch. 98, § 13; 1958, ch. 126, § 28; 1960, ch. 247, § 24; 1968, ch. 54, § 1; 1972, ch. 126, §§ 4, 9; 1972, ch. 356, para. (3); 1972, ch. 365, § 5; 1974, ch. 404, § 2; 1982, ch. 5, § 8, effective July 15, 1982; 1982, ch. 399, § 13, effective July 15, 1982.

Legislative Research Commission Note.

This section was amended by two 1982 Acts which do not appear to be in conflict and have been compiled together.

Research References and Practice Aids

Kentucky Law Journal.

Note, Consumer Protection and Prescription Drugs: The Generic Drug Substitution Laws, 67 Ky. L.J. 384 (1978-1979).

217.991. Penalties for barbiturate violations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 98, § 12) was repealed by Acts 1968, ch. 81, § 16.

217.992. Penalties for violation of KRS 217.005 to 217.215.

  1. Any person who violates any of the provisions of KRS 217.175 shall be guilty of a misdemeanor and shall on conviction thereof be subject to a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500), or by imprisonment for not more than thirty (30) days, or both; but if the violation is committed after a conviction of the person under this section has become final, the person shall be subject to a fine of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000) or by imprisonment for not more than ninety (90) days, or both.
  2. No person shall be subject to the penalties of subsection (1) of this section, for having violated KRS 217.175(1) or (3) if he establishes a guaranty or undertaking signed by, and containing the name and address of, the person residing in the United States from whom he received in good faith the article, to the effect that the article is not adulterated or misbranded within the meaning of KRS 217.005 to 217.215 , designating KRS 217.005 to 217.215 .
  3. No publisher, radio-broadcast licensee, or agency or medium for the dissemination of an advertisement, except the manufacturer, packer, distributor, or seller of the article to which a false advertisement relates, shall be liable under this section by reason of the dissemination by him of the false advertisement, unless he has refused, on the request of the cabinet to furnish the cabinet the name and post office address of the manufacturer, packer, distributor, seller, or advertising agency, residing in the United States who causes him to disseminate the advertisement.
  4. Any person who operates a retail food establishment, food processing establishment, food storage warehouse, salvage distributor, or salvage processing plant, without a permit as provided in KRS 217.005 to 217.215 or who fails to comply with any regulation adopted thereto shall be guilty of a misdemeanor and shall on conviction be subject to a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500), or by imprisonment for not more than thirty (30) days, or both, but if the violation is committed after a conviction of the person under this section has become final, the person shall be subject to a fine of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000), or by imprisonment for not more than ninety (90) days, or both.
  5. Any person who violates any provision of KRS 217.005 to 217.215 , for which a specific penalty is not otherwise provided, or any regulation adopted under the provision of KRS 217.005 to 217.215 , or who fails to comply with an order of the cabinet issued pursuant thereto, shall be fined not less than one hundred dollars ($100) nor more than five hundred dollars ($500). Each day of violation or noncompliance shall constitute a separate offense.

History. Enact. Acts 1960, ch. 247, § 23, effective June 16, 1960; 1990, ch. 458, § 8, effective July 13, 1990; 1998, ch. 297, § 3, effective July 15, 1998.

217.993. Penalties.

  1. Any person violating any provisions of KRS 217.650 to 217.710 shall be guilty of a violation. Each day of violation shall constitute a separate offense.
  2. Any person violating any provisions of KRS 217.900(2) shall upon conviction be guilty of a Class B misdemeanor.
  3. Any person found guilty of inhaling a volatile substance in violation of KRS 217.900(2) may be ordered to a facility designated by the secretary of the Cabinet for Health and Family Services, where a program of education, treatment, and rehabilitation not to exceed ninety (90) days in duration shall be prescribed. The person ordered to the facility shall present himself for registration and initiation of a treatment program within five (5) days of the date of sentencing. If, without good cause, the person fails to appear at the designated facility within the specified time, or if, any time during the program of treatment prescribed, the authorized clinical director of the facility finds that the person is unwilling to participate in his treatment and rehabilitation, the director shall notify the sentencing court. Upon receipt of notification, the court shall cause the person to be brought before it and may continue the order of treatment or may order the person subject to the fine or imprisonment, or both, for a Class B misdemeanor. Upon discharge of the person from the facility by the clinical director or his designee prior to the expiration of the ninety (90) day period or upon satisfactory completion of ninety (90) days of treatment, the person shall be deemed finally discharged from sentence. The clinical director or his designee shall notify the sentencing court of the date of such discharge from the facility.
  4. The secretary of the Cabinet for Health and Family Services or his designee shall inform each court of the identity and location of the facility to which a person may be ordered under this section.
  5. The sentencing court shall immediately notify the designated facility of the sentence and its effective date.
  6. Responsibility for payment for treatment services rendered to persons pursuant to this section shall be as under the statutes pertaining to payment by patients and others for services rendered by the Cabinet for Health and Family Services unless the facility shall arrange otherwise.
  7. None of the provisions of this section shall be deemed to preclude the court from exercising its usual discretion with regard to ordering probation or conditional discharge.
  8. Any person violating any provision of KRS 217.900(3) shall upon conviction be guilty of a Class D felony.

History. Enact. Acts 1960, ch. 244, § 8; 1980, ch. 138, § 2, effective July 15, 1980; 1992, ch. 463, § 24, effective July 14, 1992; 1998, ch. 426, § 467, effective July 15, 1998; 2005, ch. 99, § 523, effective June 20, 2005.

217.994. Penalties for violation of KRS 217.720 to 217.790. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 246, § 9; 1964, ch. 190, § 3) was repealed by Acts 1968, ch. 81, § 16.

217.995. Penalties for violation of KRS 217.721 to 217.785. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 81, § 15; 1970, ch. 125, § 7) was repealed by Acts 1972, ch. 226, § 33.

217.996. Offenses and penalties under KRS 217.800 to 217.893. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 205, §§ 26, 27(1), 28(4)) was repealed by Acts 1972, ch. 110, § 1.

217.997. Penalties for violation of KRS 217.241 to 217.257. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 177, § 7) was repealed by Acts 1972, ch. 176.

217.998. Penalties for violation of KRS 217.542 to 217.630.

  1. Any person who violates any of the provisions of KRS 217.542 to 217.630 or who fails to perform any duties imposed by those sections, or who violates any determination or order of the department promulgated pursuant thereto, shall be liable to a civil penalty of not to exceed the sum of one thousand dollars ($1,000) for said violation, and an additional civil penalty of not to exceed one thousand dollars ($1,000) for each day during which such violation continues, and in addition, may be enjoined from continuing such violations as hereinafter provided in this section. Such penalties shall be recoverable in an action brought in the name of the Commonwealth of Kentucky by the Attorney General.
  2. It shall be the duty of the Attorney General, upon the request of the department, to bring an action for the recovery of the penalties hereinabove provided for, and to bring an action for an injunction against any person violating or threatening to violate any provision of KRS 217.542 to 217.630 , or violating or threatening to violate any order or determination of the department promulgated pursuant thereto. In any such action any finding of the department shall be prima facie evidence of the fact or facts found therein.
  3. Any person who shall willfully violate any of the provisions of KRS 217.542 to 217.630 or any determination or order of the department promulgated pursuant to those sections which have become final shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) or by imprisonment for a term of not more than one (1) year, or by both fine and imprisonment for each separate violation. Each day upon which such violation occurs shall constitute a separate violation.

History. Enact. Acts 1974, ch. 200, § 15.

CHAPTER 217A Poultry and Rabbit Inspection [Repealed]

217A.010. Definitions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 42, § 4) was repealed by Acts 1982, ch. 16, § 1, effective July 15, 1982.

217A.020. Short title. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 42, § 1) was repealed by Acts 1982, ch. 16, § 1, effective July 15, 1982.

217A.030. Legislative finding. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 42, § 2) was repealed by Acts 1982, ch. 16, § 1, effective July 15, 1982.

217A.040. Declaration of policy. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 42, § 3) was repealed by Acts 1982, ch. 16, § 1, effective July 15, 1982.

217A.050. State and federal cooperation. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 42, § 5) was repealed by Acts 1982, ch. 16, § 1, effective July 15, 1982.

217A.060. Antemortem and postmortem inspection, reinspection, and quarantine. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 42, § 6) was repealed by Acts 1982, ch. 16, § 1, effective July 15, 1982.

217A.070. Sanitation, facilities, and practices. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 42, § 7) was repealed by Acts 1982, ch. 16, § 1, effective July 15, 1982.

217A.080. Labeling and containers — Standards. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 42, § 8) was repealed by Acts 1982, ch. 16, § 1, effective July 15, 1982.

217A.090. Prohibited acts. Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 42, § 9) was repealed by Acts 1982, ch. 16, § 1, effective July 15, 1982.

217A.100. Complete coverage of establishments. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 42, § 10) was repealed by Acts 1982, ch. 16, § 1, effective July 15, 1982.

217A.110. Required records and registration. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 42, § 11) was repealed by Acts 1982, ch. 16, § 1, effective July 15, 1982.

217A.120. Reporting of violations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 42, § 13) was repealed by Acts 1982, ch. 16, § 1, effective July 15, 1982.

217A.130. Regulations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 42, § 14) was repealed by Acts 1982, ch. 16, § 1, effective July 15, 1982.

217A.140. Exemptions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 42, § 15) was repealed by Acts 1982, ch. 16, § 1, effective July 15, 1982.

217A.150. Limiting entry of articles into establishments. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 42, § 16) was repealed by Acts 1982, ch. 16, § 1, effective July 15, 1982.

217A.160. General provisions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 42, § 17) was repealed by Acts 1982, ch. 16, § 1, effective July 15, 1982.

217A.170. Detention of products. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 42, § 18) was repealed by Acts 1982, ch. 16, § 1, effective July 15, 1982.

217A.180. Special judicial proceedings against articles. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 42, § 19) was repealed by Acts 1982, ch. 16, § 1, effective July 15, 1982.

217A.190. Jurisdiction of circuit court. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 42, § 20; 1976, ch. 62, § 103) was repealed by Acts 1982, ch. 16, § 1, effective July 15, 1982.

217A.200. Additional enforcement powers. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 42, § 21(1), (2)) was repealed by Acts 1982, ch. 16, § 1, effective July 15, 1982.

217A.210. Limited application of chapter. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 42, § 22) was repealed by Acts 1982, ch. 16, § 1, effective July 15, 1982.

217A.220. Cost of inspections. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 42, § 23) was repealed by Acts 1982, ch. 16, § 1, effective July 15, 1982.

217A.990. Penalties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 42, §§ 12, 21(3); 1978, ch. 384, § 74) was repealed by Acts 1982, ch. 16, § 1, effective July 15, 1982.

CHAPTER 217B Fertilizer and Pesticide Use and Application

217B.010. Title for chapter.

This chapter shall be known as the “Kentucky Fertilizer and Pesticide Storage, and Pesticide Use and Application Act of 1996.”

History. Enact. Acts 1972, ch. 130, § 1; 1996, ch. 171, § 1, effective July 15, 1996.

Research References and Practice Aids

Cross-References.

Pesticide control, KRS 217.542 to 217.640 .

217B.020. Administration of KRS Chapter 217B.

This chapter shall be administered by the Department of Agriculture, hereinafter referred to as the department.

History. Enact. Acts 1972, ch. 130, § 2; 1974, ch. 148, § 1; 1980, ch. 295, § 62, effective July 15, 1980.

217B.030. Purpose of chapter.

The purpose of this chapter is to regulate in the public interest, the storage, use, and application of insecticides, fungicides, herbicides, defoliants, desiccants, plant growth regulators, nematocides, rodenticides, and any other pesticides and the storage of fertilizers designated by the department by administrative regulation.

History. Enact. Acts 1972, ch. 130, § 3; 1974, ch. 148, § 2; 1996, ch. 171, § 2, effective July 15, 1996.

217B.040. Definitions for chapter.

For the purposes of this chapter, unless the context requires otherwise:

  1. “Pest” means:
    1. Any insect, snail, slug, rodent, nematode, fungus, weed; or
    2. Any other form of plant or animal life, or virus, bacteria, or other microorganism, except viruses, bacteria, or other microorganisms on or in living man or other living animals, which is normally considered to be a pest, or which the department declares to be a pest;
  2. “Pesticide” means:
    1. Any substance or mixture of substances intended to prevent, destroy, control, repel, attract, or mitigate any pest;
    2. Any substance or mixture of substances intended to be used as a plant regulator, defoliant, or desiccant; or
    3. Any substance or mixture of substances intended to be used as a spray adjuvant, once they have been mixed with an EPA registered product;
  3. “Defoliant” means any substance or mixture of substances intended to cause the leaves or foliage to drop from a plant with or without causing abscission;
  4. “Desiccant” means any substance or mixture of substances intended to artificially accelerate the drying of plant tissues;
  5. “Plant regulator” means any substance or mixture of substances intended through physiological action to accelerate or retard the rate of growth or maturation, or to otherwise alter the behavior of plants, but shall not include substances insofar as they are intended to be used as plant nutrients, trace elements, nutritional chemicals, plant inoculants, or soil amendments;
  6. “Insect” means any of the numerous small invertebrate animals generally having the body more or less obviously segmented, for the most part belonging to the class insecta, comprising six (6) legged, usually winged forms, as for example beetles, bugs, bees, wasps, and flies, and includes other allied classes of arthropods whose members are wingless and usually have more than six (6) legs, as for example spiders, mites, ticks, centipedes, and wood lice, and also nematodes and other worms, and any other invertebrates which are destructive, constitute a liability, and may be classed as pests;
  7. “Fungi” means all nonchlorophyll-bearing thallophytes, that is, all nonchlorophyll-bearing plants of a lower order than mosses and liverworts, as for example, rusts, smuts, mildews, molds, yeasts, bacteria, and viruses, except those on or in living man or other living animals, and except those in or on processed food, beverages, or pharmaceuticals;
  8. “Fertilizer” means any substance containing one (1) or more recognized plant nutrients, which is used for its plant nutrient content and which is designed for use or claimed to have value in promoting plant growth, except unmanipulated animal and vegetable manures, marl, lime, limestone, wood ashes, and other products exempted by administrative regulation;
  9. “Weed” means any plant which grows where not wanted;
  10. “Nematode” means invertebrate animals of the phylum nemathelminthes and class nematoda, that is, unsegmented round worms with elongated, fusiform, or sac-like bodies covered with cuticle, and inhabiting soil, water, plants, or plant parts, and may also be called nemas or eelworms;
  11. “Snails or slugs” include all harmful mollusks;
  12. “Person” means any individual, partnership, association, or any organized group of persons whether incorporated or not;
  13. “Equipment” means any type of ground, water, or aerial equipment, device, or contrivance using motorized, mechanical, or pressurized power and used to apply any pesticide on land and anything that may be growing, habitating, or stored on or in the land, but shall not include any pressurized hand-sized household device used to apply any pesticide;
  14. “Restricted use pesticide” means any pesticide classified for restricted use by the administrator, EPA, or by administrative regulation of the department;
  15. “Land” means all land and water areas, including airspace, and all plants, animals, structures, buildings, devices, and contrivances and machinery appurtenant to or situated on them, fixed or mobile, including any used for transportation;
  16. “Pesticide applicator” means any individual employed or supervised by a pesticide operator to apply pesticides. The term does not include trainees;
  17. “Pesticide operator” means any individual who owns or manages a pesticide application business that is engaged in the business of applying pesticides upon the lands of another;
  18. “Pest control consultant” means any person who, for a fee, offers or supplies technical advice, supervision, or aid, or recommends the use of specific pesticides for the purpose of controlling insect pests, plant diseases, weeds, and other pests;
  19. “Noncommercial applicator” means any individual employed by golf courses, municipal corporations, public utilities, or other governmental agencies making applications of pesticides to lands owned, occupied, or managed by his or her employer;
  20. “Wildlife” means all living things that are neither human, domesticated, nor, as defined in this chapter, pests; including, but not limited to mammals, birds, and aquatic life;
  21. “Distribute” means to offer for sale, hold for sale, sell, barter, ship, deliver for shipment, or receive, and, having received, deliver or offer to deliver any pesticides in this state excepting internal distribution within a company or organization;
  22. “EPA” means the United States Environmental Protection Agency;
  23. “Label” means the written, printed, or graphic matter on, or attached to, the pesticide or device or to any of its containers or wrappers;
  24. “Spray adjuvant” means any wetting agent, spreading agent, sticker, deposit builder, adhesive, emulsifying agent, deflocculating agent, water modifier, or similar agent intended to be used with any other pesticide as an aid to the application or to the effect of it, and which is in a package or container separate from that of the other pesticide with which it is to be used;
  25. “Commissioner” means the Commissioner of the Department of Agriculture;
  26. “Dealer” means any person that engages in the storage of bulk fertilizer or a restricted use pesticide for the purpose of redistribution or direct resale, or engages in the business of applying any pesticide to the lands of another. A “dealer” shall not include a manufacturer of a restricted use pesticide or a fertilizer who distributes his or her product solely to a dealer;
  27. “Trainee” means an individual who has been employed by a dealer and is working under the direct on-the-job supervision of a licensed operator or applicator;
  28. “Direct on-the-job supervision” means having a licensed operator or licensed applicator physically on site and directly supervising or training an individual in the application of a pesticide;
  29. “Branch office” means any location of a dealer other than its designated principal place of business location, but does not include on-premises and off-premises bulk storage or receiving warehouses used solely for the purpose of customer order filling;
  30. “Applicant” means a person applying for a license or registration under this chapter;
  31. “Pesticide sales agent” means an individual who sells or distributes restricted use pesticides or an individual who sells and makes recommendations for the use or application of pesticides to the final user;
  32. “Limited license” means a license that is issued by the department for noncommercial use, and shall be valid only when an individual is making applications of pesticides to lands owned, occupied, or managed by his or her employer;
  33. “Certified crop advisor” means an individual who has met the requirements of and has been certified by the Kentucky Certified Crop Advisor Board; and
  34. “Livestock” means cattle, sheep, swine, goats, horses, alpacas, llamas, buffaloes, or any other animals of the bovine, ovine, porcine, caprine, equine, or camelid species.

History. Enact. Acts 1972, ch. 130, § 4; 1974, ch. 148, § 3; 1992, ch. 250, § 1, effective July 14, 1992; 1996, ch. 171, § 3, effective July 15, 1996; 2000, ch. 172, § 1, effective July 14, 2000; 2017 ch. 129, § 13, effective June 29, 2017.

217B.040. Definitions for chapter.

For the purposes of this chapter, unless the context requires otherwise:

  1. “Applicant” means a person applying for a license or registration under this chapter;
  2. “Branch office” means any location of a dealer other than its designated principal place of business location, but does not include on-premises and off-premises bulk storage or receiving warehouses used solely for the purpose of customer order filling;
  3. “Dealer” means any person that engages in the storage of bulk fertilizer or a restricted use pesticide for the purpose of redistribution or direct resale, or engages in the business of applying any pesticide to the lands of another. A “dealer” shall not include a manufacturer of a fertilizer or a restricted use pesticide who distributes his or her product solely to a dealer;
  4. “Defoliant” means any substance or mixture of substances intended to cause the leaves or foliage to drop from a plant with or without causing abscission;
  5. “Department” means the Kentucky Department of Agriculture;
  6. “Desiccant” means any substance or mixture of substances intended to artificially accelerate the drying of plant tissues;
  7. “Direct supervision” means the act or process whereby the application of a pesticide is made by a competent person acting under the instructions and control of a certified operator or certified applicator who is responsible for the actions of that person and who is available if and when needed, even though such certified operator or certified applicator is not physically present at the time and place the pesticide is applied;
  8. “Distribute” means to offer for sale, hold for sale, sell, barter, ship, deliver for shipment, or receive, and, having received, deliver or offer to deliver any pesticides in this state excepting internal distribution within a company or organization;
  9. “EPA” means the United States Environmental Protection Agency;
  10. “Equipment” means any type of ground, water, or aerial equipment, device, or contrivance using motorized, mechanical, or pressurized power and used to apply any pesticide on land and anything that may be growing, habitating, or stored on or in the land, but shall not include any pressurized hand-sized household device used to apply any pesticide;
  11. “Fertilizer” means any substance containing one (1) or more recognized plant nutrients, which is used for its plant nutrient content and which is designed for use or claimed to have value in promoting plant growth, except unmanipulated animal and vegetable manures, marl, lime, limestone, wood ashes, and other products exempted by administrative regulation;
  12. “Fungi” means all nonchlorophyll-bearing thallophytes, that is, all nonchlorophyll-bearing plants of a lower order than mosses and liverworts, as for example, rusts, smuts, mildews, molds, yeasts, bacteria, and viruses, except those on or in living humans or other living animals, and except those in or on processed food, beverages, or pharmaceuticals;
  13. “Insect” means any of the numerous small invertebrate animals generally having the body more or less obviously segmented, for the most part belonging to the class insecta, comprising six (6) legged, usually winged forms, as for example, beetles, bugs, bees, wasps, and flies, and includes other allied classes of arthropods whose members are wingless and usually have more than six (6) legs, as for example, spiders, mites, ticks, centipedes, and wood lice, and also nematodes and other worms, and any other invertebrates which are destructive, constitute a liability, and may be classed as pests;
  14. “Label” means the written, printed, or graphic matter on, or attached to, the pesticide or device or to any of its containers or wrappers;
  15. “Land” means all land and water areas, including airspace, and all plants, animals, structures, buildings, devices, and contrivances and machinery appurtenant to or situated on them, fixed or mobile, including any used for transportation;
  16. “Livestock” means cattle, sheep, swine, goats, horses, alpacas, llamas, buffaloes, or any other animals of the bovine, ovine, porcine, caprine, equine, or camelid species;
  17. “Nematode” means invertebrate animals of the phylum nemathelminthes and class nematoda, that is, unsegmented round worms with elongated, fusiform, or sac-like bodies covered with cuticle, and inhabiting soil, water, plants, or plant parts, and may also be called nemas or eelworms;
  18. “Noncommercial applicator” means any licensed individual making applications of pesticides to lands owned, occupied, or managed by his or her employer;
  19. “Noncommercial license” means a license that is issued by the department for noncommercial use, and shall be valid only when an individual is making applications of pesticides to lands owned, occupied, or managed by his or her employer;
  20. “Person” means any individual, partnership, association, or any organized group of persons, whether incorporated or not;
  21. “Pest” means:
    1. Any insect, snail, slug, rodent, nematode, fungus, or weed; or
    2. Any other form of plant or animal life, or virus, bacteria, or other microorganism, except viruses, bacteria, or other microorganisms on or in living humans or other living animals, which is normally considered to be a pest, or which the department declares to be a pest;
  22. “Pesticide” means:
    1. Any substance or mixture of substances intended to prevent, destroy, control, repel, attract, or mitigate any pest;
    2. Any substance or mixture of substances intended to be used as a plant regulator, defoliant, or desiccant; or
    3. Any substance or mixture of substances intended to be used as a spray adjuvant, once they have been mixed with an EPA-registered product;
  23. “Pesticide applicator” means any individual employed or supervised by a pesticide operator to apply pesticides. The term does not include trainees;
  24. “Pesticide operator” means any individual who owns or manages a pesticide application business that is engaged in the business of applying pesticides upon the lands of another;
  25. “Pesticide sales agent” means an individual who is employed by a dealer and supervises the sale or distribution of restricted use pesticides to the final user;
  26. “Plant regulator” means any substance or mixture of substances intended through physiological action to accelerate or retard the rate of growth or maturation, or to otherwise alter the behavior of plants, but shall not include substances insofar as they are intended to be used as plant nutrients, trace elements, nutritional chemicals, plant inoculants, or soil amendments;
  27. “Restricted use pesticide” means any pesticide classified for restricted use by the administrator of the EPA, or by administrative regulation of the department;
  28. “Snails or slugs” include all harmful mollusks;
  29. “Spray adjuvant” means any wetting agent, spreading agent, sticker, deposit builder, adhesive, emulsifying agent, deflocculating agent, water modifier, or similar agent intended to be used with any other pesticide as an aid to the application or to the effect of it, and which is in a package or container separate from that of the other pesticide with which it is to be used;
  30. “Trainee” means an individual who has been employed by a dealer and is working under the direct supervision of a licensed operator or applicator;
  31. “Weed” means any plant which grows where not wanted; and
  32. “Wildlife” means all living things that are neither human, domesticated, nor, as defined in this chapter, pests, including but not limited to mammals, birds, and aquatic life.

HISTORY: Enact. Acts 1972, ch. 130, § 4; 1974, ch. 148, § 3; 1992, ch. 250, § 1, effective July 14, 1992; 1996, ch. 171, § 3, effective July 15, 1996; 2000, ch. 172, § 1, effective July 14, 2000; 2017 ch. 129, § 13, effective June 29, 2017; 2021 ch. 84, § 1.

217B.050. Authority for administrative regulations.

  1. The department shall administer and enforce the provisions of this chapter and promulgate administrative regulations to carry out the provisions of this chapter and in the administrative regulations may prescribe methods to be used in the storage of fertilizers, and the storage and application of pesticides. Where the department finds that the administrative regulations are necessary to carry out the purpose and intent of this chapter, the administrative regulations may relate to the time, place, manner, and method of storage and application of the pesticides and storage of fertilizers, may restrict or prohibit use of pesticides in designated areas during specified periods of time, and shall encompass all reasonable factors which the department deems necessary to prevent damage or injury by drift or misapplication to:
    1. Plants, including forage plants, on adjacent or nearby lands;
    2. Wildlife in the adjoining or nearby areas;
    3. Fish and other aquatic life in waters in reasonable proximity to the area to be treated; and
    4. Pollinating insects, animals, or persons.
  2. In promulgating the administrative regulations, the department shall give consideration to pertinent research findings and recommendations of other agencies of this state and of the federal government.
  3. The department may by administrative regulation adopt a list of “restricted use pesticides” for the state or for designated areas within the state if it finds that the characteristics of the pesticides require restricting their use to prevent injury on lands other than the land to which they are applied, or to persons, animals, crops, or pests or vegetation other than the pests or vegetation which they are intended to destroy. For the purpose of uniformity of requirements between the states and the federal government, the department may adopt the list of “restricted use pesticides” as established by the Environmental Protection Agency or other federal or state agencies.
  4. The department may establish additional classifications of applicator or operator licenses as required for conformance with the Federal Environmental Pesticide Control Act of 1972. The classifications may include private farmer applicators, commercial establishment applicators, and government employee applicators not specifically mentioned in this chapter. The administrative regulations may specify licensing conditions, procedures, and fees not to exceed those fees specified for other licensees under this chapter.
  5. In addition to the fees authorized in subsection (4) of this section, the department may, by administrative regulation, establish fees for carrying out the provisions required or authorized by this chapter, but shall not establish fees exceeding those specified under this chapter.

History. Enact. Acts 1972, ch. 130, § 5; 1974, ch. 148, § 4; 1980, ch. 295, § 63, effective July 15, 1980; 1996, ch. 171, § 4, effective July 15, 1996; 2000, ch. 172, § 2, effective July 14, 2000; 2006, ch. 123, § 1, effective July 12, 2006.

Compiler’s Notes.

The Federal Environmental Pesticide Control Act of 1972, referred to in subsection (4) of this section, is compiled as 7 USCS § 136 et seq.

Research References and Practice Aids

Cross-References.

Administrative regulations, KRS Chapter 13A.

Kentucky Law Journal.

Redfield, Chemical Trespass? — An Overview of Statutory and Regulatory Efforts to Control Pesticide Drift, 73 Ky. L.J. 855 (1984-85).

217B.050. Authority for administrative regulations.

  1. The department shall administer and enforce the provisions of this chapter and promulgate administrative regulations to carry out the provisions of this chapter and in the administrative regulations may prescribe methods to be used in the storage of fertilizers, and the storage and application of pesticides. Where the department finds that the administrative regulations are necessary to carry out the purpose and intent of this chapter, the administrative regulations may relate to the time, place, manner, and method of storage and application of pesticides and fertilizers, may restrict or prohibit use of pesticides in designated areas during specified periods of time, and shall encompass all reasonable factors which the department deems necessary to prevent damage or injury by drift or misapplication to:
    1. Plants, including forage plants, on adjacent or nearby lands;
    2. Wildlife in the adjoining or nearby areas;
    3. Fish and other aquatic life in waters in reasonable proximity to the area to be treated; and
    4. Pollinating insects, animals, or persons.
  2. In promulgating the administrative regulations, the department shall give consideration to pertinent research findings and recommendations of other agencies of this state and of the federal government.
  3. The department may by administrative regulation adopt a list of “restricted use pesticides” for the state or for designated areas within the state if it finds that the characteristics of the pesticides require restricting their use to prevent injury on lands other than the land to which they are applied, or to persons, animals, crops, or pests or vegetation other than the pests or vegetation which they are intended to destroy. For the purpose of uniformity of requirements between the states and the federal government, the department may adopt the list of “restricted use pesticides” as established by the Environmental Protection Agency or other federal or state agencies.
  4. The department may establish additional classifications of applicator or operator licenses as required for conformance with the Federal Environmental Pesticide Control Act of 1972. The classifications may include private farmer applicators, commercial establishment applicators, and government employee applicators not specifically mentioned in this chapter. The administrative regulations may specify licensing conditions, procedures, and fees.
  5. In addition to the fees authorized in subsection (4) of this section, the department may, by administrative regulation, establish fees for carrying out the provisions required or authorized by this chapter.
  6. In addition to other authority conferred by statute, the department shall develop a regulatory program for regulating application and notice of application of pesticides for lawn care and mosquito control.

HISTORY: Enact. Acts 1972, ch. 130, § 5; 1974, ch. 148, § 4; 1980, ch. 295, § 63, effective July 15, 1980; 1996, ch. 171, § 4, effective July 15, 1996; 2000, ch. 172, § 2, effective July 14, 2000; 2006, ch. 123, § 1, effective July 12, 2006; 2021 ch. 84, § 2.

217B.060. Licenses — Classification — Application requirements — Expiration.

  1. The department may classify licenses to be issued under this chapter. The classifications may include but not be limited to ornamental or agricultural pesticide applicators, or right-of-way pesticide applicators. Separate classifications may be specified as to ground, aerial, or manual methods used by any licensee to apply pesticides. Each classification shall be subject to separate testing procedures and requirements.
  2. Application for a license shall be made in writing to the department on a designated form obtained from the department. Each application for a license shall contain information regarding the applicant’s qualifications and proposed operations, and license classification or classifications the applicant is applying for, and shall include the following:
    1. The full name of the person applying for the license;
    2. If the applicant is a receiver, trustee, firm, partnership, association, corporation, or other organized group of persons whether or not incorporated, the full name of the receiver or trustee, the full name of each member of the firm or partnership, or the names of the officers of the association, corporation, or group;
    3. The principal business address of the applicant in the state and elsewhere;
    4. The name and address of a person, who may be the Secretary of State, whose domicile is in the state, and who is authorized to receive and accept services of summons and legal notice of all kinds for the applicant;
    5. The model, make, horsepower, and size of any equipment used by the applicant to apply pesticides; and
    6. Any other necessary information prescribed by the department.
  3. The department shall require an applicant for a license to show upon examination that the applicant possesses adequate knowledge concerning the proper use and application of pesticides in the classifications he or she has applied for. The applicant shall also demonstrate a knowledge of the proper use of and calibration of the various equipment that he or she may have applied for a license to operate, including any pressurized, hand-sized devices. The examination shall require a working knowledge of:
    1. The proper use of the equipment;
    2. The hazards that may be involved in applying pesticides, including:
      1. The effect of drift of the pesticides on adjacent and nearby lands and other nontarget organisms;
      2. The proper meteorological conditions for the application of pesticides and the precautions to be taken;
      3. The effect of the pesticides on plants or animals in the area, including the possibility of damage to plants or animals or the possibility of illegal pesticide residues resulting on them;
      4. The effect of the application of pesticides to wildlife in the area, including aquatic life;
      5. The identity and classification of pesticides used and the effects of their application in particular circumstances; and
      6. The likelihood of contamination of water or injury to persons, plants, livestock, pollinating insects, and vegetation;
    3. Calculating the concentration of pesticides to be used in particular circumstances;
    4. Identification of pests to be controlled by common name only and the damages caused by the pests;
    5. Protective clothing and respiratory equipment required during the handling and application of pesticides;
    6. General precautions to be followed in the disposal of containers as well as the cleaning and decontamination of the equipment that the applicant proposes to use; and
    7. Applicable state and federal pesticide laws and regulations.
  4. If the department finds the applicant qualified to apply pesticides in the classifications he or she has applied for, if the applicant files the bond or insurance required under KRS 217B.130 , and if the applicant applying for a license to engage in aerial application of pesticides has met all of the requirements of the Federal Aviation Agency and the Transportation Cabinet to operate the equipment described in the application, the department shall issue a pesticide applicator license limited to the classifications for which he or she is qualified, which shall expire at the end of the calendar year of issue unless it has been revoked or suspended prior to that by the department for cause, or the financial security required under KRS 217B.130 is not dated to expire at an earlier date, in which case the license shall be dated to expire upon the expiration date of the financial security.

History. Enact. Acts 1972, ch. 130, § 6; 1974, ch. 148, § 5; 2000, ch. 172, § 3, effective July 14, 2000.

217B.060. Licenses — Classification — Application requirements — Expiration.

  1. The department may classify licenses to be issued under this chapter. The classifications may include but not be limited to ornamental or agricultural pesticide applicators, or right-of-way pesticide applicators. Separate classifications may be specified as to ground, aerial, or manual methods used by any licensee to apply pesticides. Each classification shall be subject to separate testing procedures and requirements.
  2. Application for a license shall be made in writing to the department on a designated form obtained from the department. Each application for a license shall contain information regarding the applicant’s qualifications and proposed operations, and license classification or classifications the applicant is applying for, and shall include the following:
    1. The full name of the person applying for the license;
    2. If the applicant is a receiver, trustee, firm, partnership, association, corporation, or other organized group of persons whether or not incorporated, the full name of the receiver or trustee, the full name of each member of the firm or partnership, or the names of the officers of the association, corporation, or group;
    3. The principal business address of the applicant in the state and elsewhere;
    4. The name and address of a person, who may be the Secretary of State, whose domicile is in the state, and who is authorized to receive and accept services of summons and legal notice of all kinds for the applicant; and
    5. Any other necessary information prescribed by the department.
  3. The department shall require an applicant for a license to show upon examination that the applicant possesses adequate knowledge concerning the proper use and application of pesticides in the classifications he or she has applied for. The applicant shall also demonstrate a knowledge of the proper use of and calibration of the various equipment that he or she may have applied for a license to operate, including any pressurized, hand-sized devices. The examination shall require a working knowledge of:
    1. The proper use of the equipment;
    2. The hazards that may be involved in applying pesticides, including:
      1. The effect of drift of the pesticides on adjacent and nearby lands and other nontarget organisms;
      2. The proper meteorological conditions for the application of pesticides and the precautions to be taken;
      3. The effect of the pesticides on plants or animals in the area, including the possibility of damage to plants or animals or the possibility of illegal pesticide residues resulting on them;
      4. The effect of the application of pesticides to wildlife in the area, including aquatic life;
      5. The identity and classification of pesticides used and the effects of their application in particular circumstances; and
      6. The likelihood of contamination of water or injury to persons, plants, livestock, pollinating insects, and vegetation;
    3. Calculating the concentration of pesticides to be used in particular circumstances;
    4. Identification of pests to be controlled by common name only and the damages caused by the pests;
    5. Protective clothing and respiratory equipment required during the handling and application of pesticides;
    6. General precautions to be followed in the disposal of containers as well as the cleaning and decontamination of the equipment that the applicant proposes to use; and
    7. Applicable state and federal pesticide laws and regulations.
  4. If the department finds the applicant qualified to apply pesticides in the classifications he or she has applied for, if the applicant files the bond or insurance required under KRS 217B.130 , and if the applicant applying for a license to engage in aerial application of pesticides has met all of the requirements of the Federal Aviation Agency and the Transportation Cabinet to operate the equipment described in the application, the department shall issue a pesticide applicator license limited to the classifications for which he or she is qualified, which shall expire at the end of the calendar year of issue unless it has been revoked or suspended prior to that by the department for cause, or the financial security required under KRS 217B.130 is not dated to expire at an earlier date, in which case the license shall be dated to expire upon the expiration date of the financial security.

HISTORY: Enact. Acts 1972, ch. 130, § 6; 1974, ch. 148, § 5; 2000, ch. 172, § 3, effective July 14, 2000; 2021 ch. 84, § 3.

217B.070. Operator’s license — Fees.

  1. No person shall engage in the business of applying pesticides to the lands of another within this state at any time without a pesticide operator’s license issued by the department. The department shall require an annual fee of twenty-five dollars ($25) for each pesticide operator’s license issued.
  2. No license shall be issued unless the applicant holds a valid certification within this category.
  3. No license shall be issued unless the applicant is registered as a dealer or is employed by a person who is registered as a dealer.

History. Enact. Acts 1972, ch. 130, § 7; 1974, ch. 148, §§ 1, 6; 1978, ch. 384, § 69, effective June 17, 1978; 2000, ch. 172, § 4, effective July 14, 2000.

Research References and Practice Aids

Kentucky Law Journal.

Redfield, Chemical Trespass? — An Overview of Statutory and Regulatory Efforts to Control Pesticide Drift, 73 Ky. L.J. 855 (1984-85).

217B.070. Operator’s license — Fees.

  1. No person shall engage in the business of applying pesticides to the lands of another within this state at any time without a pesticide operator’s license issued by the department. The department shall require an annual fee of one hundred dollars ($100) for each pesticide operator’s license issued.
  2. No license shall be issued unless the applicant holds a valid certification within this category.
  3. No license shall be issued unless the applicant is registered as a dealer or is employed by a person who is registered as a dealer.

HISTORY: Enact. Acts 1972, ch. 130, § 7; 1974, ch. 148, §§ 1, 6; 1978, ch. 384, § 69, effective June 17, 1978; 2000, ch. 172, § 4, effective July 14, 2000; 2021 ch. 84, § 4.

217B.080. Applicator’s license — Fees — Aerial applications.

  1. Except as provided in KRS 217B.090 , it shall be unlawful for any person to act as an employee of a pesticide operator or dealer and apply pesticides manually, or as the applicator directly in charge of any equipment which is licensed or should be licensed under the provisions of this chapter for the application of any pesticide, without having obtained an applicator’s license from the department. An applicator’s license shall be in addition to any other license or permit required by law for the operation or use of any equipment. Any person applying for an applicator’s license shall file an application on a form prescribed by the department on or before January 1 of each year. Application for a license to apply pesticides shall be accompanied by a license fee of ten dollars ($10). The provisions of this section shall not apply to any individual who has passed the examination provided for in KRS 217B.060(3), and is a licensed pesticide operator. If the department finds the applicant qualified to apply pesticides in the classifications he has applied for after examinations as provided for in KRS 217B.060(3), and if the applicant applying for a license to engage in aerial applications of pesticides has met all of the requirements of the Federal Aviation Agency and the Transportation Cabinet to operate the equipment described in the application, the department shall issue a pesticide applicator license limited to the classifications for which he is qualified which shall expire at the end of the calendar year of issue unless it has been revoked or suspended prior to that by the department for cause as provided for in KRS 217B.120 .
  2. No license shall be issued unless the applicant holds a valid certification within this category.
  3. No license shall be issued unless the applicant is employed or supervised by a person who holds a valid operator’s license.

History. Enact. Acts 1972, ch. 130, § 8; 1974, ch. 148, § 7; 1978, ch. 384, § 70, effective June 17, 1978; 2000, ch. 172, § 5, effective July 14, 2000.

217B.080. Applicator’s license — Fees — Aerial applications.

  1. Except as provided in KRS 217B.090 , it shall be unlawful for any person to act as an employee of a pesticide operator or dealer and apply pesticides without having obtained an applicator’s license from the department. An applicator’s license shall be in addition to any other license or permit required by law. Any person applying for an applicator’s license shall file an application on a form prescribed by the department on or before January 1 of each year. Application for a license to apply pesticides shall be accompanied by a license fee of twenty-five dollars ($25).The provisions of this section shall not apply to any individual who has passed the examination provided for in KRS 217B.060(3), and is a licensed pesticide operator. If the department finds the applicant qualified to apply pesticides in the classifications he has applied for after examinations as provided for in KRS 217B.060(3), and if the applicant applying for a license to engage in aerial applications of pesticides has met all of the requirements of the Federal Aviation Agency and the Transportation Cabinet to operate the equipment described in the application, the department shall issue a pesticide applicator license limited to the classifications for which he is qualified which shall expire at the end of the calendar year of issue unless it has been revoked or suspended prior to that by the department for cause as provided for in KRS 217B.120 .
  2. No license shall be issued unless the applicant holds a valid certification within this category.
  3. No license shall be issued unless the applicant is employed or supervised by a person who holds a valid operator’s license.

HISTORY: Enact. Acts 1972, ch. 130, § 8; 1974, ch. 148, § 7; 1978, ch. 384, § 70, effective June 17, 1978; 2000, ch. 172, § 5, effective July 14, 2000; 2021 ch. 84, § 5.

217B.090. Noncommercial applicator license — Expiration — Legal recourse.

  1. It shall be unlawful for any person to act as a noncommercial applicator without having obtained a noncommercial applicator license from the department. Any person applying for a noncommercial applicator’s license shall file an application on a form prescribed by the department on or before January 1 of each year. The provisions of this section shall not apply to any individual who is a licensed pesticide operator or applicator. If the department finds the applicant qualified to apply pesticides, the department shall issue a limited license without a fee to a noncommercial applicator, which shall be valid only when the individual is applying pesticides on land owned, occupied, or managed by his or her employer. The noncommercial applicator license shall expire at the end of the calendar year of issue unless it has been revoked or suspended prior to that by the department for cause as provided for in KRS 217B.120 .
  2. Employers of noncommercial applicators shall be subject to legal recourse by any person damaged by the application of any pesticide, and the action may be brought in the county where the damage or some part of the damage occurred.
  3. No license shall be issued unless the applicant holds a valid certification within this category.
  4. A limited license cannot be upgraded without retesting.

History. Enact. Acts 1972, ch. 130, § 9; 1974, ch. 148, § 8; 2000, ch. 172, § 6, effective July 14, 2000.

217B.090. Noncommercial applicator license — Expiration — Legal recourse.

  1. It shall be unlawful for any person to act as a noncommercial applicator without having obtained a noncommercial applicator license from the department. Any person applying for a noncommercial applicator’s license shall file an application on a form prescribed by the department on or before January 1 of each year. The provisions of this section shall not apply to any individual who is a licensed pesticide operator or applicator. If the department finds the applicant qualified to apply pesticides, the department shall issue a noncommercial license for a fee of ten dollars ($10) to a noncommercial applicator, which shall be valid only when the individual is applying pesticides on land owned, occupied, or managed by his or her employer. The noncommercial applicator license shall expire at the end of the calendar year of issue unless it has been revoked or suspended prior to that by the department for cause as provided for in KRS 217B.120 .
  2. Employers of noncommercial applicators shall be subject to legal recourse by any person damaged by the application of any pesticide, and the action may be brought in the county where the damage or some part of the damage occurred.
  3. No license shall be issued unless the applicant holds a valid certification within this category.
  4. A noncommercial license cannot be upgraded without retesting.
  5. The department shall issue noncommercial applicator licenses to qualifying prison inmates and other incarcerated persons who are or will be engaged in the application of pesticides under the direction of the Department of Corrections. Fees for these persons shall be waived by the department.

HISTORY: Enact. Acts 1972, ch. 130, § 9; 1974, ch. 148, § 8; 2000, ch. 172, § 6, effective July 14, 2000; 2021 ch. 84, § 6.

217B.100. Consultant’s license — Fee — Qualifications — Waiver.

  1. No person shall perform services as a pest control consultant without first procuring from the department a license in the classifications he has applied for under KRS 217B.060 . Application for a license shall be on a form prescribed by the department and shall include the applicable information stipulated in KRS 217B.060 (2). The application for a license shall be accompanied by an annual fee of fifty dollars ($50).
  2. Each applicant for a pest control consultant’s license shall be required to present to the department satisfactory evidence of training and experience providing a basic background to understand pest control principles. The applicant shall be required to pass satisfactorily a written examination to be prescribed by the department to demonstrate the applicant’s specific knowledge under KRS 217B.060(3).
  3. If an applicant provides a copy of a valid Kentucky Certified Crop Advisor certification to the department, the test and fee for a consultant license may be waived.

History. Enact. Acts 1972, ch. 130, § 10; 1974, ch. 148, § 9; 2000, ch. 172, § 7, effective July 14, 2000.

217B.100. Consultant’s license — Fee — Qualifications — Waiver. [Repealed]

HISTORY: Enact. Acts 1972, ch. 130, § 10; 1974, ch. 148, § 9; 2000, ch. 172, § 7, effective July 14, 2000; repealed by 2021 ch. 84, § 38.

217B.103. Suspension, revocation, or modification of consultant’s license — Grounds — Application for new license.

  1. The department may suspend for not longer than ten (10) days, pending inquiry, and, after opportunity for a hearing, the department may deny, suspend, revoke, or modify the provision of any license issued under KRS 217B.100 if it finds that the applicant or licensee or his employee has committed any of the following acts, each of which is declared to be a violation of this section:
    1. Made false or fraudulent claims through any media, misrepresenting the effect of materials or methods to be utilized or sold;
    2. Made a pesticide recommendation not in accordance with the label registered as provided by KRS 217.541 to 217.640 ;
    3. Violated any provision of this chapter or any administrative regulation promulgated by the department or of any lawful order of the department;
    4. Failed to pay the original or renewal license fee when due;
    5. Was guilty of gross negligence, incompetency, or misconduct in acting as a consultant, or used fraud or misrepresentation in making an application for a license or renewal of a license;
    6. Refused or neglected to comply with any limitations or restrictions on or in a duly issued license;
    7. Aided or abetted a licensed or an unlicensed person to evade the provisions of this chapter, combined or conspired with a licensed or unlicensed person to evade the provisions of this chapter, or allowed one’s license to be used by an unlicensed person; or
    8. Impersonated any state, county, or city inspector or official.
  2. Any licensee whose license is revoked under the provisions of this section shall not be eligible to apply for a new license until the time has elapsed from the date of the order revoking the license as established by the department, not to exceed two (2) years, or if an appeal is taken from the order or revocation, not to exceed two (2) years from the date of the order or final judgment sustaining the revocation.

History. Enact. Acts 1974, ch. 148, § 26; 1978, ch. 384, § 71, effective June 17, 1978; 2000, ch. 172, § 8, effective July 14, 2000.

217B.103. Suspension, revocation, or modification of consultant’s license — Grounds — Application for new license. [Repealed]

HISTORY: Enact. Acts 1974, ch. 148, § 26; 1978, ch. 384, § 71, effective June 17, 1978; 2000, ch. 172, § 8, effective July 14, 2000; repealed by 2021 ch. 84, § 38.

217B.105. Registration of pesticide dealers — Fees — Branch offices — Required records.

  1. No person shall act in the capacity of a dealer, or shall engage or offer to engage in the business of, advertise as, or assume to act as a dealer without having registered as a dealer with the department.
  2. Application for a dealer registration shall be in the form and shall contain the information prescribed by the department. Each application shall be accompanied by a fee of fifty dollars ($50). All registrations issued under this section shall expire on December 31 of the year for which they are issued. The registration for a dealer may be renewed annually upon application to the department, accompanied by a fee of fifty dollars ($50) for each registration, on or before the first day of January of the calendar year for which the registration is issued.
  3. No person shall be registered as a dealer without proof of financial responsibility as required by KRS 217B.130 .
  4. A dealer shall register each branch office location.
  5. Application for a branch office registration shall be in the form and shall contain the information prescribed by the department. Each application shall be accompanied by a fee of twenty-five dollars ($25). All registrations issued under this section shall expire on December 31. The registration for a branch office may be renewed annually upon application to the department, accompanied by a fee of twenty-five dollars ($25) for each registration, on or before the first of January of the calendar year for which the registration is issued. No branch office registration may be issued unless the applicant is registered as a dealer.
  6. The department shall issue to each applicant who satisfies the requirements of this section a registration which entitles the applicant to conduct the business described in the application for the calendar year for which the registration is issued, unless the registration is sooner revoked or suspended.
  7. The department shall promulgate administrative regulations requiring dealers to maintain records with respect to their operations as it determines are necessary for the effective enforcement of this chapter. The records shall include, but not be limited to, brands and amounts of restricted use pesticides sold, and the buyer’s name, address, use of the pesticide, and certification number. Records required under this section shall extend to financial data, sales data, shipment data, and personnel data. The records are to be retained for a period of two (2) years from the time of sale. For the purposes of enforcing the provisions of this chapter, any dealer shall, upon request of the department, furnish or permit the department at all reasonable times to have access to, and to copy, records as required by this section.

History. Enact. Acts 1974, ch. 148, § 24; 1978, ch. 384, § 72, effective June 17, 1978; 2000, ch. 172, § 9, effective July 14, 2000.

217B.105. Registration of pesticide dealers — Fees — Branch offices — Required records.

  1. No person shall act in the capacity of a dealer, or shall engage or offer to engage in the business of, advertise as, or assume to act as a dealer without having registered as a dealer with the department.
  2. Application for a dealer registration shall be in the form and shall contain the information prescribed by the department. Each application shall be accompanied by a fee of seventy-five dollars ($75). All registrations issued under this section shall expire on December 31 of the year for which they are issued. The registration for a dealer may be renewed annually upon application to the department, accompanied by a fee of seventy-five dollars ($75) for each registration, on or before the first day of January of the calendar year for which the registration is issued.
  3. No person shall be registered as a dealer without proof of financial responsibility as required by KRS 217B.130 .
  4. A dealer shall register each branch office location.
  5. Application for a branch office registration shall be in the form and shall contain the information prescribed by the department. Each application shall be accompanied by a fee of fifty dollars ($50). All registrations issued under this section shall expire on December 31. The registration for a branch office may be renewed annually upon application to the department, accompanied by a fee of fifty dollars ($50) for each registration, on or before the first of January of the calendar year for which the registration is issued. No branch office registration may be issued unless the applicant is registered as a dealer.
  6. The department shall issue to each applicant who satisfies the requirements of this section a registration which entitles the applicant to conduct the business described in the application for the calendar year for which the registration is issued, unless the registration is sooner revoked or suspended.
  7. The department shall promulgate administrative regulations requiring dealers to maintain records with respect to their operations as it determines are necessary for the effective enforcement of this chapter. The records shall include, but not be limited to, brands and amounts of restricted use pesticides sold, and the buyer’s name, address, use of the pesticide, and certification number. Records required under this section shall extend to financial data, sales data, shipment data, and personnel data. The records are to be retained for a period of two (2) years from the time of sale. For the purposes of enforcing the provisions of this chapter, any dealer shall, upon request of the department, furnish or permit the department at all reasonable times to have access to, and to copy, records as required by this section.

HISTORY: Enact. Acts 1974, ch. 148, § 24; 1978, ch. 384, § 72, effective June 17, 1978; 2000, ch. 172, § 9, effective July 14, 2000; 2021 ch. 84, § 7.

217B.107. Dealer’s responsibility.

Each dealer shall be responsible for the actions of every person who acts as his employee or agent in the solicitation or sale of restricted use pesticides, and in all claims and recommendations for use or application of restricted use pesticides.

History. Enact. Acts 1974, ch. 148, § 25; 2000, ch. 172, § 10, effective July 14, 2000.

217B.110. License or registration — Late renewal — Penalty — Reexamination.

  1. If the application for renewal of any license or registration provided for in this chapter is not filed prior to March 1 in any year, a penalty of twenty-five percent (25%) shall be assessed and added to the original fee and shall be paid by the applicant before the renewal is issued.
  2. Any person holding a current valid license may renew the license for the next year without taking another examination unless the department determines that new knowledge related to classifications for which the applicant has applied makes a new examination necessary. However, if the license is not renewed by June 1 of each year, then the licensee shall be required to take another examination.
  3. No license will be issued or renewed unless certification is valid for the calendar year or the applicant has met training requirements that will allow for a renewal of certification within the calendar year for the license.

History. Enact. Acts 1972, ch. 130, § 11; 1974, ch. 148, § 10; 2000, ch. 172, § 13, effective July 14, 2000.

217B.120. Assessment of civil penalties, suspension, revocation, delay, or modification of license or registration — Causes.

The department may assess civil penalties as provided by KRS 217B.193 , or may suspend, revoke, delay issuing, or modify the provision of any license or registration issued under this chapter, if it finds that the applicant or holder has committed any of the following acts, each of which is declared to be a violation of this chapter:

  1. Made false or fraudulent claims through any media, misrepresenting the effect of materials or methods to be utilized;
  2. Made a pesticide recommendation or application not in accordance with the label registered by the department under KRS 217.541 to 217.640 ;
  3. Applied known ineffective or improper materials;
  4. Operated faulty or unsafe equipment;
  5. Operated application equipment in a careless or negligent manner;
  6. Refused or, after notice, neglected to comply with the provisions of this chapter, the administrative regulations promulgated under this chapter, or of any lawful order of the department;
  7. Refused or neglected to keep and maintain the records required by this chapter, or to make reports when and as required;
  8. Made false or fraudulent records, invoices, or reports;
  9. Engaged in the business of the application of a pesticide without having a licensed applicator or operator in direct “on-the-job” supervision;
  10. Operated unregistered equipment;
  11. Used fraud or misrepresentation in making an application for a license or registration or renewal of a license or registration;
  12. Refused or neglected to comply with any limitations or restrictions on or in a duly issued license or registration;
  13. Aided or abetted a licensed or an unlicensed person to evade the provisions of this chapter, combined or conspired with a licensed or an unlicensed person to evade the provisions of this chapter, or allowed one’s license to be used by an unlicensed person;
  14. Made false or misleading statements during or after an inspection concerning any infestation or infection of pests found on land;
  15. Impersonated any state, county, or city inspector or official;
  16. Made a sale to, or distributed a restricted use pesticide to, an uncertified applicator;
  17. Failed to obtain any license or registration required by this chapter;
  18. Failed to obtain or maintain financial responsibility required by this chapter;
  19. Failed to comply with the provisions of KRS 217B.190 ;
  20. Failed to provide direct on-the-job supervision of a trainee by a licensed operator or applicator in the application of a pesticide;
  21. Failed to follow notification and information requirements in accordance with KRS 217B.300 , including:
    1. Failure to provide customer written information prior to application;
    2. Failure to place lawn marker;
    3. Failure to meet minimum requirements for lawn marker;
    4. Failure to furnish customer proper information at application; or
    5. Failure to furnish prior notification of application when requested; or
  22. Failed to follow notification and information requirements in accordance with KRS 217B.320 , including:
    1. Failure to place golf course marker immediately after application;
    2. Failure to meet minimum requirements for golf course marker; or
    3. Failure to furnish prior notification of application when requested.

History. Enact. Acts 1972, ch. 130, § 12; 1974, ch. 148, § 11; 1978, ch. 384, § 73, effective June 17, 1978; 1992, ch. 250, § 4, effective July 14, 1992; 2000, ch. 172, § 14, effective July 14, 2000.

Research References and Practice Aids

Kentucky Law Journal.

Redfield, Chemical Trespass? — An Overview of Statutory and Regulatory Efforts to Control Pesticide Drift, 73 Ky. L.J. 855 (1984-85).

217B.120. Assessment of civil penalties, suspension, revocation, delay, or modification of license or registration — Causes.

The department may assess civil penalties as provided by KRS 217B.193 , or may suspend, revoke, delay issuing, or modify the provision of any license or registration issued under this chapter, if it finds that the applicant or holder has committed any of the following acts, each of which is declared to be a violation of this chapter:

  1. Made a pesticide application not in accordance with the label registered by the department under KRS 217.541 to 217.640 ;
  2. Applied known ineffective or improper materials;
  3. Operated equipment not functioning as intended or designed by the manufacturer;
  4. Operated equipment in a manner not intended or designed by the manufacturer;
  5. Refused or, after notice, neglected to comply with the provisions of this chapter, the administrative regulations promulgated under this chapter, or of any lawful order of the department;
  6. Refused or neglected to keep and maintain the records required by this chapter, or to make reports when and as required;
  7. Made false records, invoices, or reports;
  8. Made false representations in

    an application for a license or registration or renewal of a license or registration;

  9. Refused or neglected to comply with any limitations or restrictions on or in a duly issued license or registration;
  10. Impersonated any state, county, or city inspector or official;
  11. Made a sale to, or distributed a restricted use pesticide to, an unlicensed applicator;
  12. Failed to obtain any license or registration required by this chapter;
  13. Failed to obtain or maintain financial responsibility required by this chapter;
  14. Failed to comply with the provisions of KRS 217B.190 ; or
  15. Failed to provide direct supervision of a trainee by a licensed operator or applicator in the application of a pesticide.

HISTORY: Enact. Acts 1972, ch. 130, § 12; 1974, ch. 148, § 11; 1978, ch. 384, § 73, effective June 17, 1978; 1992, ch. 250, § 4, effective July 14, 1992; 2000, ch. 172, § 14, effective July 14, 2000; 2021 ch. 84, § 8.

217B.130. Financial responsibility.

  1. The department shall not issue or renew a dealer registration to a dealer applying pesticides to the lands of others until the applicant has furnished evidence of financial responsibility with the department consisting either of a surety bond or a liability insurance policy, or certification of the bond or policy, protecting persons who may suffer legal damages as a result of the applicant.
  2. The amount of the surety bond or liability insurance as provided for in this section shall be not less than one million dollars ($1,000,000). The surety bond or liability insurance shall be maintained at not less than that amount at all times during the licensed period. The department shall be notified ten (10) days prior to any reduction at the request of the applicant or cancellation of the surety bond or liability insurance by the surety or insurer. The total and aggregate of the surety and insurer for all claims shall be limited to the face of the bond or liability insurance policy. The department may accept a liability insurance policy or surety bond in the proper sum which has a deductible clause in an amount not exceeding one thousand dollars ($1,000) for all applicators for the total amount of liability insurance or surety bond required. If the applicant has not satisfied the requirements of the deductible amount in any prior legal claim, the deductible clause shall not be accepted by the department unless the applicant furnishes the department with a security bond or liability insurance which shall satisfy the amount of the deductible as to all claims that may arise in his application of pesticides.
  3. Should the surety furnished become unsatisfactory, the applicant shall upon notice execute a new bond or insurance and shall he fail to do so, the department shall cancel the registration and it shall be unlawful for the person to engage in the business of applying pesticides until the bond or insurance is brought into compliance with the requirements of subsection (2) of this section and the registration is reinstated by the department.
  4. Nothing in this chapter shall be construed to relieve any person from liability for any damage to the person or lands of another caused by the use of pesticides even though the use conforms to the administrative regulations of the department.

History. Enact. Acts 1972, ch. 130, § 13; 1974, ch. 148, § 12; 1978, ch. 145, § 1, effective June 17, 1978; 1980, ch. 391, § 1, effective July 15, 1980; 2000, ch. 172, § 15, effective July 14, 2000.

Research References and Practice Aids

Kentucky Law Journal.

Redfield, Chemical Trespass? — An Overview of Statutory and Regulatory Efforts to Control Pesticide Drift, 73 Ky. L.J. 855 (1984-85).

217B.140. Claim of damage — When filed — Effect — Inspection of damaged property.

  1. The person claiming damages from pesticide application shall file with the department a written statement claiming that he has been damaged, on a form prescribed by the department, within sixty (60) days after the date that damages occurred, or prior to the time that twenty-five percent (25%) of a crop damaged has been harvested. The statement shall contain, but shall not be limited to, the name of the person responsible for the application of the pesticide, the name of the owner or lessee of the land on which the crop is grown and for which damages are claimed, and the date on which it is alleged that the damage occurred. The department shall prepare a form to be furnished to persons to be used in those cases and the form shall contain other requirements as the department may deem proper. The department shall, upon receipt of the statement, notify the licensee and the owner or lessee of the land or other person who may be charged with the responsibility, for the damages claimed, and furnish copies of the statements as may be requested.
  2. The filing of a report or the failure to file a report need not be alleged in any complaint which might be filed in a court of law, and the failure to file the report shall not be considered any bar to the maintenance of any criminal or civil action. The failure to file a report shall not be a violation of this chapter. If the person failing to file the report is the only one injured from the use or application of a pesticide by others, the department may, when in the public interest, refuse to hold a hearing for the denial, suspension, or revocation of a license or registration issued under this chapter until the report is filed.
  3. When damage is alleged to have been done, the claimant shall permit the licensee, registration holder, and his representatives, such as bondsman or insurer, to observe within reasonable hours the lands or nontarget organism alleged to have been damaged in order that the damage may be examined. Failure of the claimant to permit the observation and examination of the damaged lands shall automatically bar the claim against the licensee or registration holder.

History. Enact. Acts 1972, ch. 130, § 14; 1974, ch. 148, § 13; 2000, ch. 172, § 16, effective July 14, 2000.

217B.140. Claim of damage — When filed — Effect — Inspection of damaged property.

  1. Investigations into claims of pesticide misuse conducted by the department shall occur only when the applicator of the pesticide is required by this chapter and related administrative regulations to obtain a license to use pesticides.
  2. Any person claiming pesticide misuse by a pesticide applicator shall file with the department a written statement of alleged misuse. The statement shall be submitted to the department:
    1. Within sixty (60) days after the date the alleged pesticide misuse occurred; or
    2. Prior to the time that twenty-five percent (25%) of a crop affected by pesticide misuse is harvested.
  3. A statement of alleged pesticide misuse shall contain:
    1. The name of the person allegedly responsible for the pesticide application;
    2. The name of the person who alleges misuse of pesticide;
    3. The name of the owner or lessee of the land where the effects of the alleged pesticide application misuse are evident; and
    4. The date on which the alleged pesticide misuse occurred.
  4. The filing of a report or the failure to file a report need not be alleged in any complaint for damages resulting from pesticide misuse which might be filed in a court of law, and the failure to file the report shall not be considered any bar to the maintenance of any criminal or civil action. Failure to file a report shall not be a violation of this chapter. If the person failing to file the report is the only person injured from the misuse of a pesticide, the department may, when in the public interest, refuse to hold a hearing for the denial, suspension, or revocation of a license or registration issued under this chapter until the report is filed.
  5. When pesticide misuse is alleged, the claimant shall permit the person allegedly responsible for the application of the pesticide, registration holder, and his or her representatives, such as a bondsman or insurer, to observe within reasonable hours, the lands upon which alleged effects of pesticide misuse is evident in order that the effects may be examined. Failure of the claimant to permit the observation and examination of the location of the alleged effects shall automatically bar the claim against the person allegedly responsible for the pesticide application misuse.

HISTORY: Enact. Acts 1972, ch. 130, § 14; 1974, ch. 148, § 13; 2000, ch. 172, § 16, effective July 14, 2000; 2021 ch. 84, § 9.

217B.150. Records — Time held.

The department shall require licensees to maintain records with respect to applications of pesticides. Such relevant information as the department may deem necessary may be specified by regulation. Such records shall be kept for a period of three (3) years from the date of the application of the pesticide to which such records refer, and the department shall, upon request in writing, be furnished with a copy of such records forthwith by the licensee.

History. Enact. Acts 1972, ch. 130, § 15; 1974, ch. 148, § 14.

Research References and Practice Aids

Kentucky Law Journal.

Redfield, Chemical Trespass? — An Overview of Statutory and Regulatory Efforts to Control Pesticide Drift, 73 Ky. L.J. 855 (1984-85).

217B.160. Inspection of equipment.

The department may provide for inspection of any equipment used for application of pesticides and may require repairs or other changes before its further use for pesticide application. A list of requirements that equipment shall meet may be adopted by regulation.

History. Enact. Acts 1972, ch. 130, § 16; 1974, ch. 148, § 15.

Research References and Practice Aids

Kentucky Law Journal.

Redfield, Chemical Trespass? — An Overview of Statutory and Regulatory Efforts to Control Pesticide Drift, 73 Ky. L.J. 855 (1984-85).

217B.170. Annual fee for registering equipment — Exemptions — Inspections — License plate displayed on equipment.

  1. The department shall require an annual fee of ten dollars ($10) for each aircraft to be registered and a fee of ten dollars ($10) for each piece of ground equipment to be registered, in the business of applying pesticides to the lands of another within this state.
    1. The requirements of this subsection shall not apply to handheld or backpack sprayers and ground-driven equipment that is propelled by hand.
    2. Should any equipment fail to pass inspection under KRS 217B.160 , the department shall, pending inquiry and reinspection, suspend or revoke the registration. In addition to the required inspection, unannounced inspections may be made without charge to determine if equipment is properly calibrated and maintained in conformance with applicable laws and administrative regulations.
  2. All registered equipment shall be identified by a license plate or decal furnished by the department, and shall be affixed in a location and manner upon the equipment as prescribed by the department.

History. Enact. Acts 1972, ch. 130, § 17; 1974, ch. 148, § 16; 2000, ch. 172, § 17, effective July 14, 2000; 2003, ch. 72, § 1, effective June 24, 2003.

217B.170. Annual fee for registering equipment — Exemptions — Inspections — License plate displayed on equipment. [Repealed]

HISTORY: Enact. Acts 1972, ch. 130, § 17; 1974, ch. 148, § 16; 2000, ch. 172, § 17, effective July 14, 2000; 2003, ch. 72, § 1, effective June 24, 2003; repealed by 2021 ch. 84, § 38.

217B.180. Exemptions from licensing or registration.

  1. The provisions of KRS 217B.020 to 217B.180 relating to licenses or registration and requirements for their issuance shall not apply to any farmer owner of ground equipment applying nonrestricted use pesticides for himself or his farmer neighbors if he applies the pesticides for his farmer neighbors without compensation other than trading of personal services.
  2. The licensing or registration provisions of KRS 217B.020 to 217B.180 shall not apply to any person using handpowered equipment, devices, or contrivances to apply nonrestricted use pesticides to lawns, or to ornamental shrubs and trees not in excess of twelve (12) feet high, as an incidental part of his activity of taking care of his household lawn and yard or those of his neighbors, on the condition that the person shall not publicly hold himself out as being in the business of applying pesticides, and shall not accept compensation other than the trading of personal services for the activity.
  3. KRS 217B.020 to 217B.180 shall not apply to operators presently licensed and regulated under the provisions of KRS 249.250 to 249.340 on June 17, 1978, except that if required by EPA regulations the persons may be issued, without additional fees or examination, an applicator’s license to enable them to purchase and use restricted use pesticides in accordance with the requirements of the Federal Environmental Pesticide Control Act of 1972.
  4. The registration provisions of KRS 217B.105 shall not apply to any noncommercial applicator.
  5. The licensing provisions of KRS 217B.080 shall not apply to any trainee.

History. Enact. Acts 1972, ch. 130, § 18; 1974, ch. 148, § 17; 1978, ch. 81, § 18, effective June 17, 1978; 1978, ch. 145, § 2, effective June 17, 1978; 2000, ch. 172, § 18, effective July 14, 2000.

Compiler’s Notes.

KRS 249.250 to 249.340 , referred to in subsection (3) of this section, have been repealed.

The Federal Environmental Pesticide Control Act of 1972, referred to in subsection (3) of this section, is compiled as 7 USCS § 136 et seq.

Opinions of Attorney General.

Subsection (1) of this section exempts any farmer from obtaining a pesticide applicator’s license who owns pesticide equipment and uses said equipment to apply pesticides to his own land or the land of his neighbors under the conditions set out in said section. OAG 73-316 .

217B.180. Exemptions from licensing or registration.

  1. The provisions of KRS 217B.020 to 217B.180 relating to licenses or registration and requirements for their issuance shall not apply to any farmer owner of ground equipment applying nonrestricted use pesticides for himself or his farmer neighbors if he applies the pesticides for his farmer neighbors without compensation other than trading of personal services.
  2. The licensing or registration provisions of KRS 217B.020 to 217B.180 and KRS 217B.500 to 217B.585 shall not apply to any person:
    1. Using handpowered equipment, devices, or contrivances to apply nonrestricted use pesticides to lawns, or to ornamental shrubs and trees not in excess of twelve (12) feet high, as an incidental part of his activity of taking care of his household lawn and yard or those of his neighbors, on the condition that the person shall not publicly hold himself out as being in the business of applying pesticides, and shall not accept compensation other than the trading of personal services for the activity; or
    2. Using nonrestricted use pesticides to prevent, control, repel, or eliminate wood destroying organisms or general pests in, around, or outside his or her household for the purpose of mitigating threats to the structural integrity, the human occupancy, or the contents of such household, on the condition that the person shall not publicly represent himself or herself as being in the business of applying pesticides, and shall not accept compensation other than the trading of personal services for the activity.
  3. KRS 217B.020 to 217B.180 shall not apply to operators presently licensed and regulated under the provisions of KRS 249.250 to 249.340 on June 17, 1978, except that if required by EPA regulations the persons may be issued, without additional fees or examination, an applicator’s license to enable them to purchase and use restricted use pesticides in accordance with the requirements of the Federal Environmental Pesticide Control Act of 1972.
  4. The registration provisions of KRS 217B.105 shall not apply to any noncommercial applicator.
  5. The licensing provisions of KRS 217B.080 shall not apply to any trainee.

HISTORY: Enact. Acts 1972, ch. 130, § 18; 1974, ch. 148, § 17; 1978, ch. 81, § 18, effective June 17, 1978; 1978, ch. 145, § 2, effective June 17, 1978; 2000, ch. 172, § 18, effective July 14, 2000; 2021 ch. 84, § 10.

217B.185. Pesticide sales agent’s license — Application — Fee — Renewal — Sale or distribution of pesticides restricted to licenses.

  1. The department shall establish a licensure program for pesticide sales agents. The department shall require an applicant for licensure to show upon examination that the applicant possesses adequate knowledge concerning the proper use and application of pesticides.
  2. Application for a pesticide sales agent license shall be in the form and shall contain information prescribed by the department. Each application shall be accompanied by a fee of five dollars ($5). All licenses issued under this section shall expire on December 31 of the year issued. The license for a pesticide sales agent may be renewed annually upon application to the department, accompanied by a fee of five dollars ($5) for each license, on or before the first day of January of the calendar year for which the license is issued.
  3. The department shall issue to each applicant who meets the requirements of this section a license that entitles the applicant to hold himself or herself out as a pesticide sales agent.
  4. No person shall hold himself or herself out as a pesticide sales agent unless that person is licensed as provided for in this section.
  5. No person shall make recommendations for the use or application of pesticides unless that person is licensed as provided for in this section.
  6. No person shall sell or distribute restricted use pesticides to the final user unless that person is licensed as provided for in this section.
  7. No license shall be issued unless the applicant holds a valid certification within this category.

History. Enact. Acts 2000, ch. 172, § 11, effective July 14, 2000.

217B.185. Pesticide sales agent’s license — Application — Fee — Renewal — Sale or distribution of pesticides restricted to licenses.

  1. The department shall establish a licensure program for pesticide sales agents.
  2. Application for a pesticide sales agent license shall be in the form and shall contain information prescribed by the department. Each application shall be accompanied by a fee of twenty-five dollars ($25). All licenses issued under this section shall expire on December 31 of the year issued. The license for a pesticide sales agent may be renewed annually upon application to the department, accompanied by a fee of twenty-five dollars ($25) for each license, on or before the first day of January of the calendar year for which the license is issued.
  3. The department shall issue to each applicant who meets the requirements of this section a license that entitles the applicant to hold himself or herself out as a pesticide sales agent.
  4. No person shall hold himself or herself out as a pesticide sales agent unless that person is licensed as provided for in this section.
  5. No person shall supervise the sale or distribution of restricted use pesticides to the final user unless that person is licensed as provided for in this section.

HISTORY: Enact. Acts 2000, ch. 172, § 11, effective July 14, 2000; 2021 ch. 84, § 11.

217B.187. Registration of dealer’s trainees — Application — Fee — Period registration valid.

  1. The department shall establish and administer a program to register trainees.
  2. A dealer shall not employ a trainee to apply pesticides manually or as the applicator directly in charge of any equipment that is licensed or should be licensed under the provisions of this chapter for the application of any pesticide without registering the trainee with the department. It shall be unlawful for any person to act as a trainee without being registered.
  3. Application for a trainee registration shall be in the form and shall contain the information prescribed by the department. Each application shall be accompanied by a fee of five dollars ($5).
  4. Trainee registration shall be valid for ninety (90) days and shall not be reissued or renewed.

History. Enact. Acts 2000, ch. 172, § 12, effective July 14, 2000.

217B.187. Registration of dealer’s trainees — Application — Fee — Period registration valid.

  1. The department shall establish and administer a program to register trainees.
  2. A dealer shall not employ a trainee to apply pesticides manually or as the applicator directly in charge of any equipment that is licensed or should be licensed under the provisions of this chapter for the application of any pesticide without registering the trainee with the department. It shall be unlawful for any person to act as a trainee without being registered.
  3. Application for a trainee registration shall be in the form and shall contain the information prescribed by the department. Each application shall be accompanied by a fee of twenty-five dollars ($25).
  4. Trainee registration shall be valid for ninety (90) days and shall not be reissued or renewed.

HISTORY: Enact. Acts 2000, ch. 172, § 12, effective July 14, 2000; 2021 ch. 84, § 12.

217B.190. Disposal and storage of pesticides — Use not in accordance with label or of restricted use pesticides.

  1. No person shall discard or store any pesticide or pesticide containers in a manner as to cause injury to humans, vegetation, crops, livestock, wildlife, or pollinating insects, or to pollute any waterway in a way harmful to any wildlife.
  2. No person shall use any registered pesticide in a manner not in accordance with its label.
  3. No person shall purchase, use, or supervise the use of, a restricted use pesticide unless the person is certified in a classification which permits the purchase, use, or supervision of use.
  4. No person shall distribute a restricted use pesticide to a person who does not have the appropriate certification, registration, or license as prescribed in this chapter.

History. Enact. Acts 1972, ch. 130, § 19; 1974, ch. 148, § 18; 2000, ch. 172, § 19, effective July 14, 2000.

217B.193. Notice of noncompliance — Civil penalty assessment and development of schedule.

  1. If any of the requirements of this chapter or administrative regulations promulgated under this chapter have not been complied with, the Commissioner shall cause a notice of violation to be issued. The Commissioner may issue an order for immediate compliance and assess the civil penalty provided for in this section and in KRS 217B.990 , or the Commissioner may set forth in his notice a reasonable time period, but not more than ninety (90) days, for the abatement of the violation. If any licensee or registration holder has not abated the violation within the period of time prescribed in the notice of violation, the Commissioner shall issue an order for immediate compliance and assess the civil penalty provided for in this section and in KRS 217B.990 . The notice of noncompliance shall be mailed to the licensee or registration holder by certified mail, return receipt requested, addressed to the permanent address as shown on department records. The notice of noncompliance shall specify in what respect the licensee or registration holder has failed to comply with this chapter or administrative regulations promulgated under this chapter. If the licensee or registration holder has not complied with the requirements set forth in the notice of noncompliance within the time limit allowed, the license or registration may be revoked as provided in this chapter.
  2. The Commissioner shall develop a method for calculating the civil penalty for a violation, or failure to abate a violation, within the prescribed time period as authorized by this section, and he shall promulgate a schedule of the civil penalties in an administrative regulation.

History. Enact. Acts 1992, ch. 250, § 2, effective July 14, 1992; 2000, ch. 172, § 20, effective July 14, 2000.

217B.193. Notice of noncompliance — Civil penalty assessment and development of schedule.

  1. If any of the requirements of this chapter or administrative regulations promulgated under this chapter have not been complied with, the department shall cause a notice of violation to be issued. The department may issue an order for immediate compliance and assess the civil penalty provided for in this section and in KRS 217B.990 , or the department may set forth in his notice a reasonable time period, but not more than ninety (90) days, for the abatement of the violation. If any licensee or registration holder has not abated the violation within the period of time prescribed in the notice of violation, the department shall issue an order for immediate compliance and assess the civil penalty provided for in this section and in KRS 217B.990 . The notice of noncompliance shall be mailed to the licensee or registration holder by certified mail, return receipt requested, addressed to the permanent address as shown on department records. The notice of noncompliance shall specify in what respect the licensee or registration holder has failed to comply with this chapter or administrative regulations promulgated under this chapter. If the licensee or registration holder has not complied with the requirements set forth in the notice of noncompliance within the time limit allowed, the license or registration may be revoked as provided in this chapter.
  2. The department shall develop a method for calculating the civil penalty for a violation, or failure to abate a violation, within the prescribed time period as authorized by this section, and he shall promulgate a schedule of the civil penalties in an administrative regulation.

HISTORY: Enact. Acts 1992, ch. 250, § 2, effective July 14, 1992; 2000, ch. 172, § 20, effective July 14, 2000; 2021 ch. 84, § 13.

217B.195. Effect of use of pesticides or fertilizers — Limit on liability for.

  1. No person engaged in farming who has applied or used or arranged for the application or use of any fertilizer, plant growth regulator, or pesticide as defined in the Federal Insecticide, Fungicide, and Rodenticide Act, as amended, shall be responsible or liable without proof of negligence or lack of due care, for any damages or response costs relating to any direct or indirect discharge or release into, or actual or threatened pollution of, the land, waters, air, or other resources of the state that is or may be associated with or resulting from the application or use, provided that:
    1. The application or use was in a manner consistent with the labeling of the fertilizer, plant growth regulator, or pesticide and in accordance with acceptable agricultural management practices and all applicable state and federal laws and regulations at the time of the application or use;
    2. The state or federal government, or any of its agencies, had approved, recommended, or permitted the application or use and there is no finding that any conditions of the approval, recommendation, or permit were violated, or that warnings or limitations regarding the application or use were ignored; and
    3. The fertilizer, plant growth regulator, or pesticide was licensed by or registered with the state or federal government at the time of the application or use and the person, firm, or corporation knew of no special geological, hydrological, or soil type condition existing on the land which rendered the application or use likely to cause pollution. No person, firm, or corporation shall be liable based solely on ownership of the land where the application or use took place.
  2. For the purposes of this section, farming means the cultivation of land used for the production of agricultural crops, livestock or livestock products, forestry or forestry products, milk or dairy products, poultry or poultry products, aquaculture or aquacultural products, and horticulture or horticultural products.
  3. Nothing in this section shall be construed to prohibit any cause of action based on strict tort liability against any manufacturer of the fertilizer, plant growth regulator, or pesticide.
  4. Any and all ordinances of any unit of local government now in effect or hereafter adopted that are in conflict with this section shall be void.

History. Enact. Acts 1990, ch. 307, § 6, effective July 13, 1990.

217B.200. Grievances — Hearing.

Any person aggrieved by any action of the department may obtain a review thereof by filing in the Franklin Circuit Court within thirty (30) days of notice of the action a written petition praying that the action of the department be set aside. A copy of such petition shall forthwith be delivered to the department, and within sixty (60) days thereafter the department shall certify and file in the court a transcript of any record pertaining thereto, including a transcript of evidence received, whereupon the court shall have jurisdiction to affirm, set aside or modify the action of the department, except that the findings of the department as to the facts, if supported by substantial evidence, shall be conclusive.

History. Enact. Acts 1972, ch. 130, § 20; 1974, ch. 148, § 19.

217B.203. Hearings — Appeal of Commissioner’s order.

  1. All hearings required by KRS 217B.010 to 217B.990 shall be conducted in accordance with KRS Chapter 13B.
  2. Appeals may be taken from all final orders of the Commissioner to the Franklin Circuit Court in accordance with KRS Chapter 13B.

History. Enact. Acts 1992, ch. 250, § 3, effective July 14, 1992; 1996, ch. 318, § 130, effective July 15, 1996.

217B.203. Hearings — Appeal of Commissioner’s order.

  1. All hearings required by KRS 217B.010 to 217B.990 shall be conducted in accordance with KRS Chapter 13B.
  2. Appeals may be taken from all final orders of the department to the Franklin Circuit Court in accordance with KRS Chapter 13B.

HISTORY: Enact. Acts 1992, ch. 250, § 3, effective July 14, 1992; 1996, ch. 318, § 130, effective July 15, 1996; 2021 ch. 84, § 14.

217B.210. Information and education — Revision of license examinations, training courses, and other materials.

  1. The department may publish information and conduct short courses of instruction in the safe use and application of pesticides.
  2. The department shall, at least once each year, review and update, to incorporate current information, the license examinations given by the department and all training courses approved by the department.
  3. The department shall revise the license applications given by the department, all training courses approved by the department, and all educational materials to include information on preventing contamination of groundwater.

History. Enact. Acts 1972, ch. 130, § 21; 1974, ch. 148, § 20; 1990, ch. 307, § 3, effective July 13, 1990.

217B.220. Issuance of subpoenas.

The department may issue subpoenas to compel the attendance of witnesses or production of books, documents, and records anywhere in the state in any hearing affecting the authority or privilege granted by a license or registration issued under the provisions of this chapter.

History. Enact. Acts 1972, ch. 130, § 22; 1974, ch. 148, § 21; 2000, ch. 172, § 21, effective July 14, 2000.

217B.230. Inspection — Search warrants.

  1. For the purpose of carrying out the provisions of this chapter, the department or any of its employees may enter upon any public or private premises at reasonable times, in order:
    1. To have access for the purpose of inspecting any equipment subject to this chapter and such premises on which such equipment is kept or stored; or
    2. To inspect lands actually or reported to be exposed to pesticides; or
    3. To inspect storage or disposal areas; or
    4. To inspect or investigate complaints of injury to humans or land; or
    5. To sample pesticides being applied or to be applied.
  2. Should the department be denied access to any land where such access was sought for the purposes set forth in this chapter, the department may apply to any court of competent jurisdiction for a search warrant authorizing access to such land for said purposes. The court may upon such application, issue the search warrant for the purposes requested.

History. Enact. Acts 1972, ch. 130, § 23; 1974, ch. 148, § 22.

Research References and Practice Aids

Kentucky Law Journal.

Redfield, Chemical Trespass? — An Overview of Statutory and Regulatory Efforts to Control Pesticide Drift, 73 Ky. L.J. 855 (1984-85).

217B.240. Delegation of duties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 130, § 24) was repealed by Acts 1974, ch. 148, § 29.

217B.250. Cooperation with governmental agencies and educational institutions.

The department may cooperate or enter into formal agreements with any other agency or educational institution of this state or its subdivisions or with any agency of any other state or of the federal government for the purpose of carrying out the provisions of this chapter and of securing uniformity of regulations.

History. Enact. Acts 1972, ch. 130, § 25; 1974, ch. 148, § 23.

217B.260. Pesticide Advisory Board.

A Pesticide Advisory Board may be appointed by the Commissioner of Agriculture to assist in the promulgation of regulations and the administration of this chapter.

History. Enact. Acts 1974, ch. 148, § 27; 1980, ch. 295, § 64, effective July 15, 1980.

217B.260. Pesticide Advisory Board. [Repealed]

HISTORY: Enact. Acts 1974, ch. 148, § 27; 1980, ch. 295, § 64, effective July 15, 1980; repealed by 2021 ch. 84, § 38.

217B.270. Prohibition against local regulation of fertilizer and pesticides for agriculture and silviculture.

  1. The Commonwealth of Kentucky hereby determines that the citizens of the state benefit from a system of safe, effective, and scientifically sound fertilizer and pesticide regulation on agricultural and silvicultural land. The Commonwealth further finds that a system of fertilizer and pesticide regulation which is consistent, coordinated, and comports with both federal and state technical expertise is essential to the public health, safety, and welfare, and that local regulation of fertilizer and pesticides does not materially assist in achieving these benefits.
  2. No city, town, county, or other political subdivision of the Commonwealth shall adopt or continue in effect any ordinance, resolution, rule, or regulation regarding agriculture and silviculture fertilizer regulated pursuant to KRS 250.371 and pesticide sale or use, including without limitation: registration, notification of use, advertising and marketing distribution, applicator training and certification, storage, transportation, disposal, disclosure of confidential information, or product composition.
  3. Nothing in this section shall be construed to:
    1. Abrogate any authority afforded by the state statutes to any program cabinet established under KRS Chapter 12 or any state or federal mandated hazardous materials regulations or fire safety codes and comprehensive hazardous materials management program;
    2. Abrogate the planning and zoning authority granted local government pursuant to KRS Chapter 100; or
    3. Waive any reporting requirement established by state or federal law or regulation.

History. Enact. Acts 1992, ch. 303, § 1, effective July 14, 1992; 2007, ch. 17, § 1, effective June 26, 2007.

Opinions of Attorney General.

This section 217B.270 bans a locality from enacting, or continuing in force, an ordinance regarding the sale or use of pesticides on agricultural or silvicultural lands, but does not prevent a local ordinance regarding the sale or use of pesticides on “lawns.” However, an ordinance on such subject is outside the ordinance power of an urban county government, since a comprehensive legislative scheme concerning lawn pesticide applications is already embodied in 217B.300 . OAG 92-142 .

217B.270. Prohibition against local regulation of fertilizer and pesticides for agriculture and silviculture.

  1. The Commonwealth of Kentucky hereby determines that the citizens of the state benefit from a system of safe, effective, and scientifically sound fertilizer and pesticide regulation. The Commonwealth further finds that a system of fertilizer and pesticide regulation which is consistent, coordinated, and comports with both federal and state technical expertise is essential to the public health, safety, and welfare, and that local regulation of fertilizer and pesticides does not materially assist in achieving these benefits.
  2. No city, town, county, or other political subdivision of the Commonwealth shall adopt or continue in effect any ordinance, resolution, rule, or regulation regarding fertilizer regulated pursuant to KRS 250.371 and pesticide sale or use, including without limitation: registration, notification of use, advertising and marketing distribution, training, licensing, and certification, storage, transportation, disposal, disclosure of confidential information, or product composition.
  3. Authority for the regulation of pesticides sold and used in the Commonwealth of Kentucky is hereby established in the department.
  4. Nothing in this section shall be construed to:
    1. Abrogate any authority afforded by the state statutes to any program cabinet established under KRS Chapter 12 or any state or federal mandated hazardous materials regulations or fire safety codes and comprehensive hazardous materials management program;
    2. Abrogate the planning and zoning authority granted local government pursuant to KRS Chapter 100; or
    3. Waive any reporting requirement established by state or federal law or regulation.

HISTORY: Enact. Acts 1992, ch. 303, § 1, effective July 14, 1992; 2007, ch. 17, § 1, effective June 26, 2007; 2021 ch. 84, § 15.

Lawn Care Applications

217B.300. Definitions — Notification and information requirements — Records.

  1. The following definitions apply to this section:
    1. “Application” means the spreading of lawn chemicals in liquid or dry form on a lawn;
    2. “Applicator for hire” means any person who makes an application of lawn chemicals to a lawn for compensation, including applications made by an employee to lawns owned, occupied or managed by his employer;
    3. “Customer” means a person who makes a contract, either written or verbal, with an applicator for hire to apply a pesticide to a lawn;
    4. “Lawn” means land area covered with turf kept closely mown, except land areas used for agricultural production, commercial production of turf, or land situated within three (3) feet of the foundation of a structure when a pesticide is applied to this area as a preventive or control measure for structural pests;
    5. “Lawn chemicals” means fertilizers, pesticides, or defoliants applied or intended for application to lawns;
    6. “Structural pest” means a pest which commonly invades or attacks dwellings or structures; and
    7. “Turf” means the upper stratum of soils bound by grass and plant roots into a thick mat.
  2. The following notification requirements shall be met:
    1. An applicator for hire shall provide a customer at the time of entering into a contract, with written information concerning lawn chemicals, application procedures, and other general guidelines about the safe use of lawn chemicals;
    2. Immediately following application of lawn chemicals to a lawn, the applicator shall place a lawn marker at a prominent location in the lawn;
    3. The lawn marker shall consist of, at a minimum, a four (4) inch by five (5) inch white sign attached to the upper portion of a dowel or other supporting device of not less than twelve (12) inches in length;
    4. Lettering on the lawn marker shall be in a contrasting color and shall read on one side “LAWN CARE APPLICATION — PLEASE STAY OFF GRASS UNTIL DRY” in letters easily readable and not less than three-eighths (3/8) inches in height. The lawn marker may also display a symbol depicting the required message and the name, logo, and service mark of the applicator;
    5. The lawn marker shall be removed and discarded by the property owner or resident, or other person authorized by the property owner or resident, the day following application;
    6. For applications to residential properties of three (3) families or less, the applicator shall place one (1) lawn marker per property; and
    7. For applications to properties other than residential property of three (3) families or less, the applicator shall place lawn markers at primary points of entry to the property to provide notice that lawn chemicals have been applied to the lawn.
  3. At the time of application of lawn chemicals to a lawn, an applicator for hire shall provide the following information to the customer, either homeowner or landlord, for each lawn chemical used, and shall record and maintain at the business address the following information relating to the application of each lawn chemical:
    1. The brand name or common name of the pesticide applied;
    2. The pesticide type;
    3. The fertilize rate and analysis;
    4. The reason for use;
    5. The concentration of end use product applied to the lawn, the rate of application, and the total gallons of end use product applied to the lawn;
    6. Any special instruction appearing on the label of the lawn chemical product applicable to the customer’s use of the lawn following application and any other precautionary or hazard information appearing on the label as applicable to the end use concentration;
    7. The name and the state applicator license or certificate number of the individual actually making the application;
    8. Customer name, address, and date of application; and
    9. Total area of lawn treated.
  4. Any customer of an applicator for hire, or a neighbor whose residence is adjoining to a customer of an applicator for hire, may request prior notification twenty-four (24) to forty-eight (48) hours in advance of an application by contacting the applicator for hire and providing his name, address, and telephone number. In this event, the applicator for hire shall provide notification in writing, in person, or by telephone, of the date and approximate time of application. If an applicator for hire is unable to provide prior notification to a customer or neighbor because of the absence or inaccessibility of the individual, the applicator shall leave a written notice at the residence.

History. Enact. Acts 1990, ch. 85, § 1, effective January 1, 1991; 2000, ch. 172, § 22, effective July 14, 2000.

Compiler’s Notes.

Section 2 of Acts 1990, ch. 85 provided that this section would become effective January 1, 1991.

Opinions of Attorney General.

Section 217B.270 bans a locality from enacting, or continuing in force, an ordinance regarding the sale or use of pesticides on agricultural or silvicultural lands, but does not prevent a local ordinance regarding the sale or use of pesticides on “lawns.” However, an ordinance on such subject is outside the ordinance power of an urban county government, since a comprehensive legislative scheme concerning lawn pesticide applications is already embodied in this section. OAG 92-142 .

This section constitutes a “comprehensive scheme of legislation” on the subject of lawn chemical applications; accordingly, an urban county council does not have authority to enact a local ordinance regarding lawn chemical applications. OAG 93-45 .

217B.300. Definitions — Notification and information requirements — Records. [Repealed]

HISTORY: Enact. Acts 1990, ch. 85, § 1, effective January 1, 1991; 2000, ch. 172, § 22, effective July 14, 2000; repealed by 2021 ch. 84, § 38.

Golf Course Care Application

217B.320. Exemption from provisions of KRS 217B.300 — Definitions — Notification and information requirements.

  1. The provisions of KRS 217B.300 relating to notification and information requirements shall not apply to any golf course or its employees.
  2. As used in this section:
    1. “Application” means the spreading of plant-regulating materials in liquid or dry form on a golf course;
    2. “Golf course” means land on which turf and ornamental care, including application of pesticides or fertilizer and storage of pesticides or fertilizer, is done for the purpose of preparing the land for use in the game of golf;
    3. “Plant-regulating materials” means fertilizers, pesticides, or defoliants applied or intended for application to a golf course; and
    4. “Turf” means the upper stratum of soils bound by grass and plant roots into a thick mat.
  3. The following shall be required by a golf course relating to records, notification, and information requirements:
    1. Immediately following application of plant-regulating materials on a golf course, the applicator shall place a golf course marker on the number-one (1) and number-ten (10) tees;
    2. The golf course marker shall consist of, at a minimum, a four (4) inch by five (5) inch white sign attached to the upper portion of a dowel or other supporting device of not less than twelve (12) inches in length;
    3. Lettering on the golf course marker shall be in a contrasting color and shall read on one side “PLANT-REGULATING MATERIALS HAVE BEEN APPLIED. IF DESIRED, YOU MAY CONTACT THE GOLF COURSE SUPERINTENDENT FOR FURTHER INFORMATION” in letters easily readable and not less than three-eighths (3/8) inches in height. The golf course marker may also display a symbol depicting the required message and the name, logo, and service mark of the applicator;
    4. The golf course marker may be removed by the applicator or other personnel authorized by the golf course management the day following application;
    5. Any person whose residence directly adjoins a golf course may request prior notification of a plant-regulating material application by contacting the golf course superintendent’s office and providing his or her name, address, and telephone number. If requested, the golf course shall provide notification in writing, in person, or by telephone. In the event the golf course cannot provide advance notice, the person shall be contacted at the time of application. It the golf course is unable to provide prior notification or direct notification to a resident because of the absence or unavailability of the resident, the golf course shall leave a written notice at the residence; and
    6. Material safety data sheets for each plant-regulating material shall be in an area of the superintendent’s office where they can be easily read and accessible by patrons of the golf course.
  4. At the time of application of plant-regulating materials to a golf course, an applicator shall record and maintain the following information for each plant-regulating material used:
    1. The brand name or common name of the pesticide applied;
    2. The pesticide type;
    3. The fertilize rate and analysis;
    4. The reason for use;
    5. The concentration of end use product applied to the golf course, the rate of application, and the total gallons of end use product applied to the golf course;
    6. The location of area treated;
    7. Any special instruction appearing on the label of the plant-regulating material applicable to the golf course use following application and any other precautionary or hazard information appearing on the label as applicable to the end use concentration; and
    8. The name and the state applicator license or certification number of the individual actually making the application.
  5. This record shall be maintained in the golf course superintendent’s office and shall be readily available to review on request. This record shall be retained for three (3) years and be an inspectable item for the department.

History. Enact. Acts 2000, ch. 172, § 23, effective July 14, 2000.

217B.320. Exemption from provisions of KRS 217B.300 — Definitions — Notification and information requirements. [Repealed]

HISTORY: Enact. Acts 2000, ch. 172, § 23, effective July 14, 2000; repealed by 2021 ch. 84, § 38.

Commercial Structural Pest Control and Fumigation

217B.500. Definitions.

As used in KRS 217B.505 to 217B.585 unless the context requires otherwise:

  1. “Department” shall mean the Department of Agriculture.
  2. “KPCA” shall mean Kentucky Pest Control Association, Inc.
  3. “Termite” shall mean the eastern subterranean termite, Reticulotermes flavipes (Kollar), the southeastern subterranean termite, R. virginicus Banks, or the light southeastern subterranean termite, R. hageni Banks.
  4. “Old house borer” shall mean the cerambycid beetle Hylotrupes bajalus (L.).
  5. “Powder post beetle” shall mean the beetles that damage wooden structures and are classified within the families Lyctidae, Bostrichidae or Anobiidae.
  6. “Carpenter ants” shall mean those ants that damage wooden structures and are classified within the genus Camponotus.
  7. “Carpenter bees” shall mean those bees that damage wooden structures and are classified in the genus Xylocopa.
  8. “General pests” shall mean any arthropods, mollusks, annelid worms, rodents or other pestiferous vertebrate animals, vermin or fungi, excluding those defined in subsections (3), (4), (5), (6), and (7) of this section.
  9. “Fumigation” shall mean the use of poisonous gases for the control of pests in enclosed spaces including but not restricted to structures such as box cars, warehouses, ships, barges, homes, garages and granaries.
  10. “Wood destroying organisms” shall mean those organisms that cause damage to the wood used in the construction of commercial or residential establishments including the insects defined under subsections (3), (4), (5), (6), and (7) of this section.
  11. “Structural pest control” shall mean the control of termites or pests, including the identification of infestations or infections; the making of inspections, inspection reports, recommendations; offering advice regarding control methods or sanitation procedures relative to termites and general pests; estimates, or bids, whether oral or written, with respect to such infestations; issuing contracts or submitting bids for, advertising for or performing services designated to prevent, control, repel or eliminate such infestations by the use of pesticides, mechanical devices or structural modifications under whatever name known, for the purpose of preventing, controlling and repelling wood destroying organisms and general pests in household structures, commercial buildings, and other structures (including those in all stages of construction) or the contents thereof, and outside areas, including the treatment of railroad cars, trucks, ships and airplanes or any one (1) or any combination thereof. Excluded under this definition are textile manufacturers, cleaners or furriers who treat fabrics or furs in their place of business exclusively.
  12. “Applicant” shall mean any named natural person applying for an applicator license or a manager’s license.
  13. “Applicator” shall mean the license holder for a structural pest control firm and shall be the designated natural person, within a firm, partnership, corporation, organization, association or any combination thereof, who manages or is in charge of a business of structural pest control including advertising, soliciting or performing any of the services covered under the provisions of KRS 217B.505 to 217B.585 .
  14. “Manager” shall hold a manager’s license and be a designated natural person within a firm who may perform the functions of an applicator but must always work under the full-time supervision of an applicator.
  15. “License” shall mean an instrument authorizing a person to act or engage in structural pest control operations as an applicator or manager. The license may be issued by the department upon certification of the applicant’s qualification and upon recommendation of the Pest Control Advisory Board.
  16. “Office” shall mean the point of headquarters or location of the principal operation of an applicator or a point or location from which branch offices or operations are supervised.
  17. “Branch offices” shall mean any location other than the main or home office or point of headquarters of principal operation of a firm from which structural pest control activities are carried out. The maintenance of personnel and/or where pesticides are stored and mixed (other than in service vehicles) or a point from which sales are made or solicited, or service rendered shall constitute a branch office within the meaning of KRS 217B.505 to 217B.585 . Each branch office shall have a licensed manager.
  18. “Full-time supervision” shall mean the act or process whereby professional work or services are made by a competent person acting under the instructions and control of an applicator or manager who is responsible for the action of that person and who is available if and when needed even though such applicator or manager is not physically present at the time and place that professional work or services are performed.
  19. “Reserve applicator license holder” shall be that person within a designated structural pest control firm or structural fumigation firm who maintains a current applicator’s license but is not the designated license holder for that firm. This license holder can become the designated license holder for said firm only in the event of the death, incapacitation or removal of the original license holder other than by bankruptcy or sale of the firm.
  20. “Board” means the Pest Control Advisory Board.

History. Enact. Acts 1978, ch. 81, § 1, effective June 17, 1978; 1980, ch. 295, § 65 effective July 15, 1980.

217B.500. Definitions.

As used in KRS 217B.500 to 217B.585 unless the context requires otherwise:

  1. “Applicant” means any person applying for a license;
  2. “Applicator” means a licensed person who makes pesticide applications;
  3. “Board” means the Structural Pest Management Advisory Board;
  4. “Carpenter ants” means those ants that damage wooden structures and are classified within the genus Camponotus;
  5. “Carpenter bees” means those bees that damage wooden structures and are classified in the genus Xylocopa;
  6. “Commercial pesticide application” means a pesticide application made by a licensed person or trainee employed by a structural pest management company on the property of another for a fee;
  7. “Department” means the Kentucky Department of Agriculture;
  8. “Direct supervision” means the act or process whereby the application of a pesticide is made by a competent person acting under the instructions and control of a certified operator or certified applicator who is responsible for the actions of that person and who is available if and when needed, even though such certified operator or certified applicator is not physically present at the time and place the pesticide is applied;
  9. “General pests” means any arthropods, mollusks, annelid worms, rodents, or other pestiferous vertebrate animals, vermin, or fungi, excluding those defined in subsections (4), (5), (13), (16), and (20) of this section;
  10. “KPMA” means the Kentucky Pest Management Association, Inc;
  11. “License” means an instrument issued by the department that certifies a person is competent to make pesticide applications in a structural pest management category;
  12. “Noncommercial pesticide application” means pesticide applications made by an applicator, in the course of employment, on property owned, occupied, or managed by the applicator or his or her employer;
  13. “Office” means any location where the application records or pesticide inventory of a structural pest management company are stored;
  14. “Old house borer” means the cerambycid beetle Hylotrupes bajalus (L.);
  15. “Operator” means a licensed person who manages a structural pest management company and makes pesticide applications or supervises applicators or trainees making pesticide applications;
  16. “Powder post beetle” means the beetles that damage wooden structures and are classified within the families Lyctidae, Bostrichidae, or Anobiidae;
  17. “Structural fumigation” means the use of poisonous gases for the control of general pests and wood destroying organisms in enclosed structures;
  18. “Structural pest management” means the use of pesticides to prevent, control, repel, or eliminate wood destroying organisms or general pests in, around, or outside structures for the purpose of mitigating threats to structural integrity, the human occupancy, or the contents of such structures;
  19. “Structural pest management company” means any company that provides commercial structural pest management or commercial structural fumigation services for a fee;
  20. “Termite” means the eastern subterranean termite, Reticulotermes flavipes (Kollar), the southeastern subterranean termite, R. virginicus Banks, or the light southeastern subterranean termite, R. hageni Banks;
  21. “Trainee” means an unlicensed person employed by a structural pest management company to make pesticide applications; and
  22. “Wood destroying organisms” means those organisms that cause damage to the wood used in the construction of structures including the insects defined under subsections (4), (5), (13), (16), and (20) of this section.

HISTORY: Repealed and reenacted by 2021 ch. 84, § 16.

217B.505. Pest Control Advisory Board.

There shall be established a seven (7) member Pest Control Advisory Board which shall consist of the following members:

  1. President of KPCA or his designated representative from the KPCA board of directors.
  2. One (1) member of KPCA appointed by the Governor from a list of persons in the pest control industry submitted by the KPCA, who shall be residents of the Commonwealth. This member shall serve a two (2) year term.
  3. The chairman of the University of Kentucky Department of Entomology or his designated representative.
  4. One (1) other member of the University of Kentucky Department of Entomology appointed by the chairman of the Department of Entomology.
  5. Two (2) members of the department appointed by the Commissioner of Agriculture.
  6. One (1) consumer member appointed by the Commissioner of Agriculture. This member shall serve a two (2) year term.
  7. If a vacancy occurs on the board, it shall be filled in the manner designated in this section.
  8. At the first meeting of the Pest Control Advisory Board, a chairman, a vice chairman, and a secretary shall be elected for one (1) year. They shall serve at the pleasure of the board. The chairman or the vice chairman shall preside at all meetings and vote as any other member. The secretary of the board shall maintain accurate minutes of each meeting of the board.
  9. Five (5) members of the board shall constitute a quorum and any action or order of the board shall require the presence of a quorum and the approval of a simple majority of the members present.
  10. The board shall meet on the first Thursday of alternate months beginning with January at Frankfort or such other place in Kentucky as the chairman shall direct. If the first Thursday falls on a holiday, the meeting shall take place the following Thursday. The secretary of the board shall notify members of upcoming meetings ten (10) days prior to the meeting. However, four (4) members of the board may call a special meeting of the board on ten (10) days’ notice to the other members.
  11. Members of the board shall serve without compensation; however, members who are not employees of the Commonwealth shall be entitled to reimbursement by the department for actual expenses incurred in carrying out the duties of the board.

History. Enact. Acts 1978, ch. 81, § 2, effective June 17, 1978; 1980, ch. 295, § 66, effective July 15, 1980; 1990, ch. 245, § 1, effective July 13, 1990.

NOTES TO DECISIONS

Cited:

Kentucky Ass’n of Realtors, Inc. v. Musselman, 817 S.W.2d 213, 1991 Ky. LEXIS 109 ( Ky. 1991 ).

217B.505. Pest Control Advisory Board.

  1. There shall be established a six (6) member Structural Pest Management Advisory Board which shall consist of the following members:
    1. President of the KPMA or the president’s designated representative from the association’s membership;
    2. One (1) member of the KPMA appointed by the Governor from a list of persons active in the structural pest management industry submitted by the KPMA. This member shall serve a two (2) year term;
    3. The chairperson of the University of Kentucky Department of Entomology or the chairperson’s designated representative;
    4. One (1) other member of the University of Kentucky Department of Entomology appointed by the chairperson of the Department of Entomology; and
    5. Two (2) members of the department staff appointed by the Commissioner of Agriculture.
  2. When a vacancy occurs on the board, it shall be filled in the manner designated in subsections (1) to (5) of this section.
  3. At the first meeting of the Structural Pest Management Advisory Board, a chairperson, a vice chairperson, and a secretary shall be elected for one (1) year. They shall serve at the pleasure of the board. The chairperson or the vice chairperson shall preside at all meetings and vote as any other member. The secretary of the board shall maintain accurate minutes of each meeting of the board.
  4. Four (4) members of the board shall constitute a quorum and any action or order of the board shall require the presence of a quorum and the approval of a simple majority of the members present.
  5. The board shall meet no less than two (2) times per year upon the call of the chairperson. The secretary of the board shall notify members of upcoming meetings ten (10) days prior to the meeting. However, three (3) members of the board may call a special meeting of the board on ten (10) days’ notice to the other members.
  6. Members of the board shall serve without compensation; however, members who are not employees of the Commonwealth shall be entitled to reimbursement by the department for actual expenses incurred in carrying out the duties of the board.

HISTORY: Enact. Acts 1978, ch. 81, § 2, effective June 17, 1978; 1980, ch. 295, § 66, effective July 15, 1980; 1990, ch. 245, § 1, effective July 13, 1990; 2021 ch. 84, § 17.

217B.510. Powers and duties of board.

The Pest Control Advisory Board shall have the following powers and duties:

  1. To review commercial structural pest control and commercial structural fumigation enforcement proceedings and to make written recommendations for further action to the department.
  2. To hold hearings on the denial of an application for a license pursuant to KRS 217B.540 .
  3. To review commercial structural pest control and commercial structural fumigation applicator license applications to ensure that the applicants meet state pest control licensing requirements and to make recommendations to the department.
  4. To review the state pest control licensing examinations.
  5. To assist the department in administering the licensing examinations for commercial structural pest control applicators and commercial structural fumigation applicators and to make recommendations to the department.
  6. To serve as a resource group to keep the department informed of current technical advancements in the pest control industry.
  7. To recommend reasonable rules and regulations concerning the following matters:
    1. Standards of application and workmanship.
    2. Proper health and safety precautions.
    3. Requirements for standardized structural pest control contracts.
    4. Furnishing of reports and information necessary for the Pest Control Advisory Board to carry out the provisions of KRS 217B.515 to 217B.585 .
  8. To assist the department in administering the licensing examinations for the commercial structural pest control applicators and commercial structural fumigation applicators and to make recommendations to the department.

History. Enact. Acts 1978, ch. 81, § 3, effective June 17, 1978; 1980, ch. 295, § 67, effective July 15, 1980; 1992, ch. 250, § 5, effective July 14, 1992.

217B.510. Powers and duties of board.

The Structural Pest Management Advisory Board shall have the following powers and duties:

  1. Review commercial structural pest management and commercial structural fumigation enforcement proceedings and to make written recommendations to the department;
  2. Hold hearings on the denial of an application for a license pursuant to KRS 217B.540 ;
  3. Review the structural pest management licensing examinations;

  4. Serve as a resource group to keep the department informed of current technical advancements in the structural pest management industry; and
  5. Review and make recommendations to the department concerning statutes and administrative regulations, including any proposed revisions, affecting the structural pest management industry.

HISTORY: Enact. Acts 1978, ch. 81, § 3, effective June 17, 1978; 1980, ch. 295, § 67, effective July 15, 1980; 1992, ch. 250, § 5, effective July 14, 1992; 2021 ch. 84, § 18.

217B.515. Structural pest control licenses.

Every person shall secure a license from the department before engaging in structural pest control in Kentucky. Structural pest control is divided into the following categories and a separate examination and license is required to operate in each category.

    1. Commercial structural pest control shall include all structural pest control including wood destroying organisms and general pests in and immediately adjacent to commercial, industrial and residential establishments. (1) (a) Commercial structural pest control shall include all structural pest control including wood destroying organisms and general pests in and immediately adjacent to commercial, industrial and residential establishments.
    2. Any person holding only a termite or a general pest control license or a fumigation license on June 17, 1978, may continue to operate in that category. Such person may take the commercial structural pest control license examination without jeopardizing his current license. Should the license of said license holder lapse or be revoked for any reason such person in order to be licensed again shall be required to fulfill the requirements of KRS 217B.515 to 217B.545 .
  1. Commercial structural fumigation shall include applicators using poison gases for control of pests in enclosed spaces including but not restricted to structures such as box cars, warehouses, ships, barges, homes, garages and granaries.
  2. Any additional category the department shall designate on recommendation of the board.

History. Enact. Acts 1978, ch. 81, § 4, effective June 17, 1978.

217B.515. Structural pest control licenses.

  1. No person shall engage in structural pest management or structural fumigation without first obtaining a license from the department certifying competence to make commercial or noncommercial pesticide applications.
  2. A separate examination and license is required to operate in each of the following categories:
    1. Commercial structural pest management;
    2. Commercial structural fumigation;
    3. Noncommercial structural pest management; and
    4. Any additional category the department shall designate on recommendation of the board.
  3. Any person holding only a termite or a general pest control license or a fumigation license on or after June 17, 1978, may continue to operate in that category. That person may take the commercial structural pest management operator’s license examination without jeopardizing his or her current license. Should the license of the license holder lapse or be revoked for any reason, the person, in order to be licensed again, shall be required to fulfill the requirements of KRS 217B.515 to 217B.545 .
  4. Licenses issued under this section shall expire annually.
  5. The department may promulgate administrative regulations establishing other types of licenses certifying persons to engage in structural pest management and structural fumigation and providing for examinations to obtain those licenses. The department shall assess reasonable fees for licenses and the administration of examinations.

HISTORY: Repealed and reenacted by 2021 ch. 84, § 19.

217B.520. Applicator’s or manager’s license.

  1. Applicants for an applicator’s license shall be required to:
    1. Be a legal resident of the United States.
    2. Be eighteen (18) years of age.
    3. Have at least two (2) years of verified experience employed with a licensed structural pest control applicator. Experience shall be verified by the license holder of the company from which the applicant has obtained his experience. A person with a bachelor’s degree, a master’s degree or a doctoral degree in entomology from an accredited college or university shall qualify with no experience. Educational background shall be verified with official transcripts from the institution or institutions granting the degree.
  2. Applicants for a manager’s license shall be required to have one (1) year’s experience as a service technician or as a salesperson for a licensed pest control company.
  3. No person convicted of fraud or misrepresentation may apply for an applicator’s or manager’s license.

History. Enact. Acts 1978, ch. 81, § 5, effective June 17, 1978.

Opinions of Attorney General.

A person who is not a licensed commercial structural pest control applicator or manager pursuant to this section may be certified by the Department of Agriculture to purchase, use or apply restricted use pesticides in noncommercial situations under 302 KAR 31:015. OAG 86-12 .

217B.520. Applicator’s or manager’s license.

Applicants for an operator’s license shall be required to:

  1. Be a legal resident of the United States;
  2. Be at least eighteen (18) years of age; and
  3. Have at least two (2) years of verified experience in structural pest management. A person with a bachelor’s degree, a master’s degree or a doctoral degree in entomology from an accredited college or university shall qualify with no experience. Educational background shall be verified with official transcripts from the institution or institutions granting the degree.

HISTORY: Enact. Acts 1978, ch. 81, § 5, effective June 17, 1978; 2021 ch. 84, § 20.

217B.525. Application for license.

  1. Application for license shall be submitted on a form furnished by the department, and shall be filed no later than thirty (30) days in advance of the next examination date.
  2. The department shall notify the applicant within ten (10) days of the examination date whether or not he has passed the examination.

History. Enact. Acts 1978, ch. 81, § 6, effective June 17, 1978.

217B.525. Application for license.

  1. Application for an operator’s license shall be submitted on a form furnished by the department, and shall be filed no later than thirty (30) days in advance of the next examination date.
  2. The department shall notify the applicant within ten (10) days of the examination date whether or not the applicant has passed the examination.

HISTORY: Enact. Acts 1978, ch. 81, § 6, effective June 17, 1978; 2021 ch. 84, § 21.

217B.530. Examinations for licenses.

  1. Applicator licensing examinations for commercial structural pest control and commercial structural fumigation shall be given the second Tuesday in May and the second Tuesday in November unless such date shall be a holiday. In such case the examination shall be given on the third Tuesday of that month. Manager licensing examinations shall be administered by the department as needed.
  2. An applicant shall be allowed to take two (2) consecutive licensing examinations but if the applicant has not passed the licensing examination after two (2) attempts he must then wait one (1) year and must complete and pass a training course approved by the department before reapplying to take the examination one (1) more time. If the applicant does not pass the examination the third or subsequent time, he shall have to wait two (2) years and complete and pass an additional training course approved by the department before reapplying to take the examination.
  3. License testing fees shall be fifty dollars ($50) for each examination each time the examination is taken.
  4. Written examinations shall be given to all qualified applicants. No oral examinations shall be given.
  5. The commercial structural pest control examination shall consist of no less than two hundred sixty (260) written questions and no less than forty (40) identification specimens. The commercial structural fumigation examination shall consist of no less than eighty (80) written questions and no less than twenty (20) identification specimens. The manager’s licensing examination shall consist of no less than ninety (90) written questions and no less than ten (10) identification specimens.
  6. The licensing examination shall be a timed examination. Five (5) hours shall be allowed for the commercial structural pest control examination and two (2) hours for the commercial structural fumigation examination. Timing for the manager’s licensing examinations shall be set by regulation.
  7. The applicant must achieve a grade of at least 70% correct on the written questions and at least 70% correct on the identification to pass the licensing examination. The license applicant must take and pass the entire examination to become licensed.
  8. The commercial structural pest control and the commercial structural fumigation examination shall also serve as the examination necessary to fulfill federal commercial pesticide applicator certification requirements, including industrial, institutional, structural and health related pest control.

History. Enact. Acts 1978, ch. 81, § 7, effective June 17, 1978.

217B.530. Examinations for licenses.

  1. Operator licensing examinations for commercial structural pest management and commercial structural fumigation shall be given at least two (2) times per year.
  2. All license testing fees shall be established in administrative regulations promulgated by the department.
  3. Examinations shall be given to all qualified applicants. No oral examinations shall be given.
  4. The commercial structural pest management operator’s examination shall consist of no less than two hundred sixty (260) written questions and identification of no less than forty (40) wood destroying organisms and general pests. The commercial structural fumigation operator’s examination shall consist of no less than eighty (80) written questions and identification of no less than twenty (20) wood destroying organisms and general pests.
  5. The licensing examination shall be a timed examination. Five (5) hours shall be allowed for the commercial structural pest control examination and two (2) hours for the commercial structural fumigation examination.
  6. The applicant must achieve a grade of at least 70% correct on the written questions and at least 70% correct on the identification to pass the licensing examination. The applicant must take and pass the entire examination to become licensed.
  7. The commercial structural pest management operator’s examination and all other structural pest management license examinations shall serve as the examinations necessary to fulfill federal commercial pesticide applicator certification requirements, including industrial, institutional, structural and health related pest control, and the commercial structural fumigation operator’s examination and all other fumigation license examinations shall serve as the examinations necessary to fulfill federal commercial pesticide applicator certification requirements for nonsoil fumigation.

HISTORY: Enact. Acts 1978, ch. 81, § 7, effective June 17, 1978; 2021 ch. 84, § 22.

217B.535. Applicator license holder restrictions — Licenses not transferable or assignable — Effect of sale of pest control firm — Annual registration.

  1. There shall be only one (1) applicator license holder per company with one (1) or more reserve applicator license holders allowed for each company.
  2. A license issued by the department shall not be transferable or assignable. In the event of the death or incapacitation of a licensed operator, his heirs, representatives, other persons or legal entities, which may have an interest in the structural pest control business in which the deceased was the license holder, shall be allowed a maximum of twelve (12) months from such death to obtain a qualified licensed applicator to operate or manage said business under the provisions of KRS 217B.515 to 217B.585 . A full-time certified applicator shall be employed by such business for the application and supervision of restricted use pesticides.
  3. If a pest control firm is sold, the purchaser must comply with all state laws and regulations. If the purchaser fails to comply he has ninety (90) days to dissolve the business. The seller must notify the buyer that the department regulates the pest control industry in Kentucky. The seller must notify the department that the business has been sold within ten (10) days after the sale. If the license holder for a pest control firm leaves or is terminated for reasons other than death or sale of the firm, the firm must notify the department of this change within ten (10) days and must acquire a license holder at the next testing period or must be granted an emergency license by the department for a period not to exceed the following scheduled examination. If the pest control firm fails to meet these requirements, they must dissolve the business within ninety (90) days. A full-time certified applicator shall be employed by such business for the application and supervision of restricted use pesticides.
  4. It shall be illegal to solicit business or advertise without a valid commercial structural pest control applicator’s license or commercial structural fumigation applicator’s license.
  5. Each applicator shall register annually and shall pay an annual fee of one hundred dollars ($100) for each place of business maintained in Kentucky. Every nonresident owner shall designate a resident agent upon whom service of notice of process may be made to enforce the provisions of KRS 217B.515 to 217B.585 .

History. Enact. Acts 1978, ch. 81, § 8, effective June 17, 1978.

217B.535. Applicator license holder restrictions — Licenses not transferable or assignable — Effect of sale of pest control firm — Annual registration.

  1. There shall be at least one (1) operator license holder per structural pest management company. The department shall require an annual fee of one hundred dollars ($100) for each operator’s license issued.
  2. A license issued by the department shall not be transferable or assignable. Structural pest management companies shall annually register and pay a fee of fifty dollars ($50) for each office.
  3. Every nonresident operator, applicator, and structural pest management company shall designate a resident agent upon whom service of process may be made to enforce the provisions of KRS 217B.515 to 217B.585 .

HISTORY: Enact. Acts 1978, ch. 81, § 8, effective June 17, 1978; 2021 ch. 84, § 23.

217B.540. Hearing on denial of application.

The department shall after denying an application for a license, if petitioned by the applicant within ten (10) days of notification, schedule a hearing before the Pest Control Advisory Board. The hearing shall be conducted in accordance with KRS Chapter 13B.

History. Enact. Acts 1978, ch. 81, § 9, effective June 17, 1978; 1996, ch. 318, § 126, effective July 15, 1996.

217B.540. Hearing on denial of application.

The department shall, after denying an application for a license, if petitioned by the applicant within ten (10) days of notification, schedule a hearing before the Structural Pest Management Advisory Board. The hearing shall be conducted in accordance with KRS Chapter 13B.

HISTORY: Enact. Acts 1978, ch. 81, § 9, effective June 17, 1978; 1996, ch. 318, § 126, effective July 15, 1996; 2021 ch. 84, § 24.

217B.545. Suspension, revocation, or modification of applicator’s or manager’s license — Procedure — Waiting period for eligibility for reapplication.

  1. The department may suspend, revoke, or modify the provision of any applicator’s or manager’s license issued under KRS 217B.515 to 217B.520 if it finds that the licensee has committed any of the acts set forth in KRS 217B.550 .
  2. The license holder shall have ten (10) days upon the receipt of the notification of a proposed suspension, revocation, or modification of license to request a hearing. The hearing shall be conducted in accordance with KRS Chapter 13B.
  3. If a hearing is not requested as provided for in subsection (2) of this section, the department may suspend, revoke, or modify the license once the ten (10) day hearing request filing period has passed.
  4. Any licensee whose license is revoked under the provisions of this section shall not be eligible to apply for a new license until time has elapsed from the date of the final order revoking the license as established by the department, not to exceed two (2) years, or if an appeal is taken from the final order or revocation, not to exceed two (2) years from the date of the final order or final judgment sustaining the revocation.

History. Enact. Acts 1978, ch. 81, § 10, effective June 17, 1978; 1992, ch. 250, § 6, effective July 14, 1992; 1996, ch. 318, § 127, effective July 15, 1996.

217B.545. Suspension, revocation, or modification of applicator’s or manager’s license — Procedure — Waiting period for eligibility for reapplication.

  1. The department may issue a notice of its intent to suspend, revoke, or modify the provision of any license issued under KRS 217B.515 to 217B.520 if it finds that the licensee has committed any of the acts set forth in KRS 217B.550 .
  2. The license holder shall have ten (10) days upon the receipt of a notice of intent to suspend, revoke, or modify a license to request a hearing. The hearing shall be conducted in accordance with KRS Chapter 13B.
  3. If a hearing is not requested as provided for in subsection (2) of this section, the department may suspend, revoke, or modify the license once the ten (10) day hearing request filing period has passed.
  4. Any person whose license is revoked under the provisions of this section shall not be eligible to apply for a new license until time has elapsed from the date of the final order revoking the license as established by the department, not to exceed two (2) years, or if an appeal is taken from the final order or revocation, not to exceed two (2) years from the date of the final order or final judgment sustaining the revocation.

HISTORY: Enact. Acts 1978, ch. 81, § 10, effective June 17, 1978; 1992, ch. 250, § 6, effective July 14, 1992; 1996, ch. 318, § 127, effective July 15, 1996; 2021 ch. 84, § 25.

217B.550. Violations.

The following acts are declared to be a violation of KRS 217B.515 to 217B.585 :

  1. Making any material representation for the purpose of defrauding the public, or using any method or material that is not reasonably suited for the purpose for which it was employed, by any licensed applicator, manager or his solicitor or agent.
  2. Failure of a licensed operator or manager to comply with any of the provisions of this chapter or any reasonable rule or regulation promulgated by the department.
  3. Failure to pay any final judgment rendered against any licensed operator or manager, his employee, solicitor or representative by reason of liabilities resulting from activities under KRS 217B.515 to 217B.585 .
  4. Failure to make the registration and pay the annual licensing fees as required by KRS 217B.535 .
  5. Failure to attend training courses approved by the department on recommendation of the Pest Control Advisory Board as specified by the Kentucky state plan.
  6. The making of false or fraudulent claims through any media, misrepresenting the effect of materials or methods to be utilized.
  7. The making of a pesticide recommendation or application not in accordance with the label registered by the department under KRS 217.542 to 217.640 .
  8. The application of known improper materials.
  9. Knowingly operating faulty or unsafe equipment.
  10. Knowingly operating in a faulty, careless or negligent manner.
  11. Failure to keep and maintain the records required by KRS 217B.510 , or to make reports when and as required.
  12. The making of false or fraudulent records, invoices or reports.
  13. Engaging in the business of the application of a pesticide without having a licensed applicator or operator in direct supervision.
  14. Using fraud or misrepresentation in making an application for a license or renewal of a license.
  15. Failure to comply with any limitations or restrictions on or in a duly issued license, permit or certification.
  16. Aiding or abetting a licensed or an unlicensed person to evade the provisions of KRS 217B.515 to 217B.585 , combining or conspiring with such a licensed or an unlicensed person to evade the provisions of KRS 217B.515 to 217B.585 , or allowing one’s license to be used by an unlicensed person.
  17. The making of false or misleading statements during or after an inspection concerning any infestation or infection of pests found on land.
  18. Impersonating any state, county or city inspector or official.

History. Enact. Acts 1978, ch. 81, § 11, effective June 17, 1978; 1980, ch. 188, § 219, effective July 15, 1980.

217B.550. Violations.

The following acts are declared to be a violation of KRS 217B.515 to 217B.585 :

  1. Using any material or pesticide that is not labeled for the purpose of structural pest management;
  2. Failure of a licensed operator or applicator to comply with any of the provisions of this chapter or any reasonable rule or regulation promulgated by the department;
  3. Failure of any person to pay a fine or comply with an order issued by the department;
  4. Failure to renew any required registration or pay any licensing fees;
  5. Failure to obtain required continuing education units through training courses approved by the department;
  6. Making a pesticide application not in accordance with the label registered by the department under KRS 217.542 to 217.640 ;
  7. Storing or discarding a pesticide or pesticide container in a manner prohibited under KRS 217B.555 ;
  8. Operating equipment not functioning as intended or designed by the manufacturer;
  9. Operating equipment in a manner not intended or designed by the manufacturer;
  10. Failure to keep and maintain the records required by the department, or to make reports when and as required;
  11. Making false records, invoices, or reports;
  12. Making an application of a pesticide by a trainee without having a licensed person providing direct supervision;
  13. Making false representations in an application for a license or renewal of a license;
  14. Failure to comply with any limitations or restrictions placed on a license issued by the department;
  15. Impersonating any state, county, or city inspector or official;
  16. Failure to obtain any license or make any registration required by this chapter; and
  17. Failure to obtain or maintain liability insurance as required by this chapter.

HISTORY: Enact. Acts 1978, ch. 81, § 11, effective June 17, 1978; 1980, ch. 188, § 219, effective July 15, 1980; 2021 ch. 84, § 26.

217B.555. Pesticide storage restrictions — Restricted use pesticides.

  1. No person shall knowingly discard or store any pesticide or pesticide containers in such a manner as to cause injury to humans, vegetation, crops, livestock, wildlife, pollinating insects or to pollute any waterway in a way harmful to any wildlife therein.
  2. No person shall purchase, use or supervise the use of, a restricted use pesticide unless such person be certified in a classification which permits such purchase, use or supervision of use.

History. Enact. Acts 1978, ch. 81, § 12, effective June 17, 1978.

217B.555. Pesticide storage restrictions — Restricted use pesticides.

  1. No person shall discard or store any pesticide or pesticide containers in a manner as to cause injury to humans, vegetation, crops, livestock, wildlife, pollinating insects or to pollute any waterway in a way harmful to any wildlife therein.
  2. No person shall purchase, use, or supervise the use of, a restricted use pesticide unless that person be licensed in a category which permits that purchase, use, or supervision of use.

HISTORY: Enact. Acts 1978, ch. 81, § 12, effective June 17, 1978; 2021 ch. 84, § 27.

217B.560. Training of personnel.

A pest control company shall be required and responsible to use only trained personnel such that a new employee shall work under the full-time supervision of a certified applicator for at least thirty (30) days and sales and service personnel shall receive a training course approved by the department on recommendation of the Pest Control Advisory Board.

History. Enact. Acts 1978, ch. 81, § 13, effective June 17, 1978.

217B.560. Training of personnel.

Structural pest management companies shall register trainees with the department for a fee of twenty-five dollars ($25). The department may promulgate administrative regulations to establish additional requirements for trainees.

HISTORY: Enact. Acts 1978, ch. 81, § 13, effective June 17, 1978; 2021 ch. 84, § 28.

217B.565. Identification of vehicles — Employee identification cards.

Each business establishment or business entity shall at all times have its vehicles, which are actively and regularly engaged in service work marked for easy identification with at least the letters “L.P.C.O.” two (2) inches high, and the company name thereon, followed by the license number of the business establishment or business entity. Identification of vehicles may be permanent or removable; however, signs shall accompany the vehicle at all times for purpose of identification. Each licensed business establishment or business entity shall furnish each employee performing work or soliciting business an identification card to be secured from the department and said identification card shall be carried on his or her person at all times for the purpose of identification of the employee to the department or to the person or persons for whom such work is being performed. It is the responsibility of every business establishment or business entity issuing identification cards to collect any and all cards, or produce proof that a reasonable effort was made to collect same, from employees whose employment has terminated with that company. Identification cards collected in this manner shall be mailed to the department.

History. Enact. Acts 1978, ch. 81, § 14, effective June 17, 1978.

217B.565. Identification of vehicles — Employee identification cards.

Identification of structural pest management company vehicles shall be subject to administrative regulations promulgated by the department.

HISTORY: Enact. Acts 1978, ch. 81, § 14, effective June 17, 1978; 2021 ch. 84, § 29.

217B.570. Burden of responsibility.

The burden of responsibility shall rest upon the applicator for selection and use of proper chemicals, and also for the correct formulation and dosages used unless otherwise specified in the rules and regulations. However, the department or its agents shall have authority at reasonable times during regular business hours to examine and test any and all chemicals used or being used or bought, held or stored for the purpose of being used for wood destroying organisms or general pest prevention or control by any person having a license issued, whether then in use or not. The department or its agent shall have the authority to inspect equipment and all storage and disposal areas. The department or its agent shall have the authority at reasonable times during regular business hours to inspect and observe the manner in which a particular pesticide is applied to insure that such is being done properly.

History. Enact. Acts 1978, ch. 81, § 15, effective June 17, 1978.

217B.570. Burden of responsibility.

  1. Each structural pest management company and employer of a noncommercial applicator shall be responsible for the actions of every person who acts as its employee or agent in performing structural pest management services.
  2. The department shall have authority at reasonable times during regular business hours to examine and test any and all chemicals stored for the purpose of being used for prevention or control of wood destroying organisms or general pests.
  3. The department shall have the authority to inspect equipment and all storage and disposal areas.
  4. The department shall have the authority at reasonable times during regular business hours to inspect and observe the manner in which a particular pesticide is applied to ensure that it is being done according to the registered label.

HISTORY: Enact. Acts 1978, ch. 81, § 15, effective June 17, 1978; 2021 ch. 84, § 30.

217B.575. Notification of change of address.

Each license holder shall be required to notify the department of any change of address within ten (10) days after such change has been made.

History. Enact. Acts 1978, ch. 81, § 16, effective June 17, 1978.

217B.575. Notification of change of address. [Repealed]

HISTORY: Enact. Acts 1978, ch. 81, § 16, effective June 17, 1978; repealed by 2021 ch. 84, § 38.

217B.580. Disposition of fees.

All fees collected by the department from structural pest control operators for licensing and examinations shall be deposited in the State Treasury to the credit of a revolving fund for the use of the department in enforcing the provisions of KRS 217B.515 to 217B.585 and for the expense of carrying out the duties and functions of the Pest Control Advisory Board.

History. Enact. Acts 1978, ch. 81, § 17, effective June 17, 1978.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. I, A, 22, (1) at 860.

217B.580. Disposition of fees.

All fees collected by the department for licensing and examinations shall be deposited in the State Treasury to the credit of a revolving fund for the use of the department in enforcing the provisions of KRS 217B.515 to 217B.585 and for the expense of carrying out the duties and functions of the Pest Management Advisory Board.

HISTORY: Enact. Acts 1978, ch. 81, § 17, effective June 17, 1978; 2021 ch. 84, § 31.

217B.585. Actions for enforcement.

It shall be the duty of the department, or upon the request of the Commissioner of Agriculture, of the Attorney General to bring an action for the recovery of the penalties provided for in KRS 217B.990(5), and to bring an action for an injunction against any person violating or threatening to violate any provision of KRS 217B.515 to 217B.575 or violating or threatening to violate any order or determination of the department promulgated pursuant thereto. In any such action any finding of the department shall be prima facie evidence of the fact or facts found therein.

History. Enact. Acts 1978, ch. 81, § 19, effective June 17, 1978; 1980, ch. 295, § 68, effective July 15, 1980; 1992, ch. 250, § 8, effective July 14, 1992.

217B.585. Actions for enforcement.

It shall be the duty of the department, or upon the request of the Commissioner of Agriculture, of the Attorney General to bring an action for the recovery of the penalties provided for in KRS 217B.990 , and to bring an action for an injunction against any person violating or threatening to violate any provision of this chapter or violating or threatening to violate any administrative regulation, order, or determination of the department promulgated pursuant thereto. In any such action any finding of the department shall be prima facie evidence of the fact or facts found therein.

HISTORY: Enact. Acts 1978, ch. 81, § 19, effective June 17, 1978; 1980, ch. 295, § 68, effective July 15, 1980; 1992, ch. 250, § 8, effective July 14, 1992; 2021 ch. 84, § 32.

Penalties

217B.990. Penalties.

  1. Any person who violates any of the provisions of this chapter or who fails to perform any duties imposed by those sections, or who violates any determination or order of the department promulgated pursuant thereto shall be liable to a civil penalty of not to exceed the sum of one thousand dollars ($1,000) for said violation, and an additional civil penalty of not to exceed one thousand dollars ($1,000) for each day during which such violation continues, and in addition, may be enjoined from continuing such violations as hereinafter provided in this section. Such penalties shall be recoverable in an action brought in the name of the Commonwealth of Kentucky by the department, or upon the department’s request by the Attorney General.
  2. Any person who fails to abate a violation within the time period prescribed by administrative regulation for the abatement shall be assessed a civil penalty of not less than one hundred dollars ($100). Each day of continuing violation may be deemed a separate violation for the purpose of penalty assessment. The Commissioner shall develop a method for calculating monetary penalties and shall promulgate a schedule of the penalties in an administrative regulation. The penalty shall be recoverable in an action brought in the name of the Commonwealth. All sums of recovery shall be placed in the State Treasury. A license holder shall have thirty (30) days from notification of the penalty assessment to request a hearing.
  3. It shall be the duty of the department, or upon the request of the Commissioner of Agriculture, of the Attorney General to bring an action for the recovery of the penalties hereinabove provided for, and to bring an action for an injunction against any person violating or threatening to violate any provision of this chapter or violating or threatening to violate any order or determination of the department promulgated pursuant thereto. In any such action any finding of the department shall be prima facie evidence of the fact or facts found therein.
  4. Any person who shall willfully violate any of the provisions of this chapter or any determination or order of the department promulgated pursuant to those sections which have become final shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) or by imprisonment for a term of not more than one (1) year, or by both fine and imprisonment for each separate violation. Each day upon which such violation occurs shall constitute a separate violation.
  5. Any person who violates any of the provisions of KRS 217B.515 to 217B.585 or who fails to perform any duties imposed by those sections, or who violates any determination or order of the department promulgated pursuant thereto shall be liable to a civil penalty of not to exceed the sum of one thousand dollars ($1,000) for said violation, and an additional civil penalty of not to exceed one thousand dollars ($1,000) for each day during which such violation continues, and in addition, may be enjoined from continuing such violations as hereinafter provided for in KRS 217B.585 . Such penalties shall be recoverable in an action brought in the name of the Commonwealth of Kentucky by the department, or upon the department’s request by the Attorney General.
  6. Any person who shall willfully violate any of the provisions of KRS 217B.515 to 217B.585 or any determination or order of the department promulgated pursuant to those sections which have become final shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) or by imprisonment for a term of not more than one (1) year or by both fine and imprisonment for each separate violation. Each day upon which the violation occurs shall constitute a separate violation.

History. Enact. Acts 1972, ch. 130, § 26; 1974, ch. 148, § 28; 1976, ch. 289, § 6; subsections (4) and (5) added, 1978, ch. 81, § 19, effective June 17, 1978; 1980, ch. 295, § 69, effective July 15, 1980; 1992, ch. 250, § 7, effective July 14, 1992.

217B.990. Penalties.

  1. Any person who violates any of the provisions of this chapter or who fails to perform any duties imposed by those sections, or who violates any determination or order of the department promulgated pursuant thereto shall be liable to a civil penalty of not to exceed the sum of one thousand dollars ($1,000) for that violation, and an additional civil penalty of not to exceed one thousand dollars ($1,000) for each day during which the violation continues, and in addition, may be enjoined from continuing the violations as provided in this section. The penalties shall be recoverable in an action brought in the name of the Commonwealth of Kentucky by the department, or upon the department’s request by the Attorney General.
  2. Any person who fails to abate a violation within the time period prescribed by administrative regulation for the abatement shall be assessed a civil penalty of not less than one hundred dollars ($100). Each day of continuing violation may be deemed a separate violation for the purpose of penalty assessment. The Commissioner shall develop a method for calculating monetary penalties and shall promulgate a schedule of the penalties in an administrative regulation. The penalty shall be recoverable in an action brought in the name of the Commonwealth. All sums of recovery shall be placed in the State Treasury. A license holder shall have thirty (30) days from notification of the penalty assessment to request a hearing.

Any person who shall willfully violate any of the provisions of this chapter or any determination or order of the department promulgated pursuant to those sections which have become final shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) or by imprisonment for a term of not more than one (1) year, or by both fine and imprisonment for each separate violation. Each day upon which such violation occurs shall constitute a separate violation.

HISTORY: Enact. Acts 1972, ch. 130, § 26; 1974, ch. 148, § 28; 1976, ch. 289, § 6; subsections (4) and (5) added, 1978, ch. 81, § 19, effective June 17, 1978; 1980, ch. 295, § 69, effective July 15, 1980; 1992, ch. 250, § 7, effective July 14, 1992; 2021 ch. 84, § 33.

CHAPTER 217C Milk and Milk Products

217C.010. Legislative intent.

It is the intent of this chapter to provide for uniform state standards and requirements for milk and milk products. No standard or requirement shall be imposed by a local regulation or ordinance which prohibits the sale of milk and milk products which are produced, processed and sold in conformity with the provisions of this chapter.

History. Enact. Acts 1972, ch. 370, § 2.

217C.020. Restriction on local governmental agencies.

No local governmental agency shall impose by ordinance, regulation or otherwise any inspection fee involving the production, processing and sale of milk and milk products.

History. Enact. Acts 1972, ch. 370, § 3.

217C.030. Definitions for KRS Chapter 217C.

As used in this chapter:

  1. “Secretary” means the secretary of the Cabinet for Health and Family Services.
  2. “Cabinet” means the Cabinet for Health and Family Services.

History. Enact. Acts 1972, ch. 370, § 4; 1974, ch. 74, Art. VI, § 107(1), (11), (22); 1998, ch. 426, § 468, effective July 15, 1998; 2005, ch. 99, § 524, effective June 20, 2005.

217C.040. Secretary to adopt regulations — Scope.

The secretary shall adopt rules and regulations regulating the production, transportation, processing, handling, sampling, examination, grading, labeling, standards of identity, and sale of milk and milk products; the inspection of dairy herds, dairy farms, and milk plants; the issuing and revocation of permits to milk producers, haulers, transfer stations, processing plants, pasteurization plants, and distributors; the procedures for selection of advisory committee nominees; and regulating such other matters relating to milk and milk products as may be necessary to protect the public health. The secretary shall adopt separate regulations regulating grade A milk products and milk for manufacturing purposes.

History. Enact. Acts 1972, ch. 370, § 5; 1974, ch. 74, Art. VI, § 107(22).

217C.050. Cabinet’s responsibility — Allocation of funds.

  1. The cabinet is hereby designated as the single state agency for the purpose of carrying out a statewide milk control program within budgetary limitations. The cabinet may allot funds or contract with any local health department to carry out an approved milk control program in accordance with the provisions of this chapter. In the event a local department’s program is not maintained in approved status, the cabinet may assume operation and control of the local program within budgetary limitations.
  2. In the event the cabinet assumes the responsibility for any existing milk program being conducted by a local health department the employees thereof may, with the approval of the cabinet, be accepted as employees of the cabinet and assigned to equivalent classifications pursuant to applicable state merit system regulations, without examination.

History. Enact. Acts 1972, ch. 370, § 6.

217C.060. Reciprocal agreements — Fees.

The cabinet is authorized to enter into reciprocal agreements with milk control officials of federal or state agencies having standards substantially equivalent to the requirements of this chapter and the regulations of the secretary, which are enforced with equal effectiveness. A reasonable fee shall be charged for all out-of-state inspections where reciprocal inspections are not available. Such fees shall be deposited in a revolving fund for the purpose of carrying out the provisions of this chapter.

History. Enact. Acts 1972, ch. 370, § 7.

217C.070. Milk Committee — Membership — Terms.

  1. The secretary for health and family services shall appoint a milk advisory committee composed of eight (8) appointive members. Three (3) members shall be processors, or representatives thereof; three (3) members shall be producers, or representatives thereof; and two (2) members shall be citizens at large, as representatives of consumers.
  2. The secretary for health and family services or his designated representative shall be an ex officio member and secretary of the committee. The appointments to the committee shall be made for a term of four (4) years, or until their successors are appointed and qualify, except that the terms of office of the members first appointed shall be as follows: two (2) members shall be appointed for one (1) year, two (2) members shall be appointed for two (2) years, two (2) members shall be appointed for three (3) years and two (2) members shall be appointed for four (4) years and the respective terms of the first members shall be designated by the secretary for health and family services at the time of their appointment. Such members shall serve without compensation but may be reimbursed for necessary traveling expenses. Procedures for selection of advisory nominees shall be in accordance with the regulations of the secretary.

History. Enact. Acts 1972, ch. 370, § 8; 1974, ch. 74, Art. VI, § 107(1), (2); 1998, ch. 426, § 469, effective July 15, 1998; 2005, ch. 99, § 525, effective June 20, 2005; 2019 ch. 90, § 9, effective June 27, 2019.

217C.080. Short title.

KRS 217C.010 to 217C.070 and KRS 217C.990 may be cited as the Kentucky Milk and Milk Products Act of 1972.

History. Enact. Acts 1972, ch. 370, § 1.

217C.090. Sale of unpasteurized goat milk.

The secretary shall issue administrative regulations allowing the sale, upon written recommendation of a physician, of goat milk which has not been pasteurized.

History. Enact. Acts 1988, ch. 242, § 1, effective July 15, 1988.

217C.100. Administrative hearings.

All administrative hearings conducted pursuant to this chapter shall be conducted in accordance with KRS Chapter 13B.

History. Enact. Acts 1996, ch. 318, § 125, effective July 15, 1996.

Penalties

217C.990. Penalties.

Any person who violates any provision of this chapter, or any rule or regulation adopted hereunder, or who fails to comply with an order of the Cabinet for Health and Family Services issued pursuant thereto, shall be fined not less than one hundred dollars ($100) nor more than five hundred dollars ($500). Each day of violation or noncompliance shall constitute a separate offense.

History. Enact. Acts 1972, ch. 370, § 9; 1974, ch. 74, Art. VI, § 107(1), (11); 1998, ch. 426, § 470, effective July 15, 1998; 2005, ch. 99, § 526, effective June 20, 2005.

CHAPTER 218 Uniform Narcotic Drug Act [Repealed]

218.010. Definitions. [Repealed.]

Compiler’s Notes.

This section (3716-1: amend. Acts 1944, ch. 136, § 1; 1954, ch. 158, § 1; 1962, ch. 6, § 1; 1970, ch. 125, § 8) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.020. Acts prohibited. [Repealed.]

Compiler’s Notes.

This section (3716-2) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.025. Prohibition of drugs in prisons. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 99, § 7, effective June 19, 1958) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.030. Manufacturers and wholesalers. [Repealed.]

Compiler’s Notes.

This section (3716-3) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.040. Qualification for licenses. [Repealed.]

Compiler’s Notes.

This section (3716-4) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.050. Sale on written orders. [Repealed.]

Compiler’s Notes.

This section (3716-5) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.060. Sales by apothecaries. [Repealed.]

Compiler’s Notes.

This section (3716-6: amend. Acts 1956, ch. 126, § 1, effective May 18, 1956) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.070. Professional use of narcotic drugs. [Repealed.]

Compiler’s Notes.

This section (3716-7) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.080. Preparations exempted. [Repealed.]

Compiler’s Notes.

This section (3716-8: amend. Acts 1942, ch. 105, §§ 1, 3; 1962, ch. 6, § 2; 1968, ch. 45, § 1) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.090. Records of narcotic drug transactions. [Repealed.]

Compiler’s Notes.

This section (3716-9: amend. Acts 1942, ch. 105, §§ 2, 4; 1958, ch. 99, § 1) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.100. Labels. [Repealed.]

Compiler’s Notes.

This section (3716-10) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.110. Authorized possession of narcotic drugs by individuals. [Repealed.]

Compiler’s Notes.

This section (3716-11) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.120. Persons and corporations exempted. [Repealed.]

Compiler’s Notes.

This section (3716-12) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.130. Common nuisances. [Repealed.]

Compiler’s Notes.

This section (3716-13) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.140. Narcotic drugs to be delivered to state officials, etc. [Repealed.]

Compiler’s Notes.

This section (3716-14) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.150. Transmittal of conviction records to licensing board or health department. [Repealed.]

Compiler’s Notes.

This section (3716-15: amend. Acts 1958, ch. 99, § 2, effective June 19, 1958) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.160. Inspection of drug stocks and confidential records. [Repealed.]

Compiler’s Notes.

This section (3716-16: amend. Acts 1958, ch. 99, § 3, effective June 19, 1958) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.170. Fraud or deceit. [Repealed.]

Compiler’s Notes.

This section (3716-17) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.180. Exceptions and exemptions not required to be negatived. [Repealed.]

Compiler’s Notes.

This section (3716-18) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.190. Enforcement and cooperation. [Repealed.]

Compiler’s Notes.

This section (3716-19: amend. Acts 1958, ch. 99, § 4, effective June 19, 1958) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.191. Enforcement by state board of pharmacy and agents. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 45, § 2) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.192. Injunctive remedies. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 99, § 5, effective June 19, 1958) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.194. Contraband nature of vehicles used in drug traffic. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 99, § 6, effective June 19, 1958) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.200. Board of health to prescribe regulations. [Repealed.]

Compiler’s Notes.

This section (3716-20) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.210. Penalties. [Repealed.]

Compiler’s Notes.

This section (3716-21: amend. Acts 1952, ch. 120, § 1; 1958, ch. 99, § 8; 1962, ch. 6, § 3; 1966, ch. 106, § 1) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.220. Effect of acquittal or conviction under federal narcotic laws. [Repealed.]

Compiler’s Notes.

This section (3716-22) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.230. Interpretation. [Repealed.]

Compiler’s Notes.

This section (3716-23) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.240. Name of act. [Repealed.]

Compiler’s Notes.

This section (3716-24) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.245. Evidence of communication to peace officer without disclosing name of informer admissible to show reasonable cause for arrest or search in drug prosecution. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 101) was repealed by Acts 1972, ch. 226, § 33. For present law, see KRS 218A.010 to 218A.994 .

218.250. Habitual use of narcotics, penalty for; probation of sentence; arrest of offenders. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1946, ch. 167, § 1; 1958, ch. 99, § 9; 1958, ch. 126, § 29) was repealed by 1966 Ky. Acts ch. 106, § 2, and ch. 255, § 283. For present law, see KRS 218A.010 to 218A.994 .

CHAPTER 218A Controlled Substances

218A.005. Legislative findings and declarations.

The General Assembly hereby finds, determines, and declares that:

  1. The regulation of controlled substances in this Commonwealth is important and necessary for the preservation of public safety and public health; and
  2. Successful, community-based treatment can be used as an effective tool in the effort to reduce criminal risk factors. Therapeutic intervention and ongoing individualized treatment plans prepared through the use of meaningful and validated, research-based assessment tools and professional evaluations offer a potential alternative to incarceration in appropriate circumstances and shall be used accordingly.

History. Enact. Acts 2011, ch. 2, § 4, effective June 8, 2011.

NOTES TO DECISIONS

1.Public Policy.

Dismissal of first-degree promoting contraband charge against defendant was in err because defendant's choice to possess a separate quantity of a dangerous contraband while also overdosing on a controlled substance inside a detention facility constituted a crime that could be investigated and prosecuted. Allowing defendant to escape prosecution for possessing the dangerous contraband also did not further the public policy of helping to rehabilitate drug users, reduce criminal risk factors, and offer a potential alternative to incarceration. Commonwealth v. Kenley, 516 S.W.3d 362, 2017 Ky. App. LEXIS 51 (Ky. Ct. App. 2017).

218A.010. Definitions for chapter.

As used in this chapter:

  1. “Administer” means the direct application of a controlled substance, whether by injection, inhalation, ingestion, or any other means, to the body of a patient or research subject by:
    1. A practitioner or by his or her authorized agent under his or her immediate supervision and pursuant to his or her order; or
    2. The patient or research subject at the direction and in the presence of the practitioner;
  2. “Anabolic steroid” means any drug or hormonal substance chemically and pharmacologically related to testosterone that promotes muscle growth and includes those substances classified as Schedule III controlled substances pursuant to KRS 218A.020 but does not include estrogens, progestins, and anticosteroids;
  3. “Cabinet” means the Cabinet for Health and Family Services;
  4. “Carfentanil” means any substance containing any quantity of carfentanil, or any of its salts, isomers, or salts of isomers;
  5. “Certified community based palliative care program” means a palliative care program which has received certification from the Joint Commission;
  6. “Child” means any person under the age of majority as specified in KRS 2.015 ;
  7. “Cocaine” means a substance containing any quantity of cocaine, its salts, optical and geometric isomers, and salts of isomers;
  8. “Controlled substance” means methamphetamine, or a drug, substance, or immediate precursor in Schedules I through V and includes a controlled substance analogue;
    1. “Controlled substance analogue,” except as provided in paragraph (b) of this subsection, means a substance: (9) (a) “Controlled substance analogue,” except as provided in paragraph (b) of this subsection, means a substance:
      1. The chemical structure of which is substantially similar to the structure of a controlled substance in Schedule I or II; and
      2. Which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in Schedule I or II; or
      3. With respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in Schedule I or II.
    2. Such term does not include:
      1. Any substance for which there is an approved new drug application;
      2. With respect to a particular person, any substance if an exemption is in effect for investigational use for that person pursuant to federal law to the extent conduct with respect to such substance is pursuant to such exemption; or
      3. Any substance to the extent not intended for human consumption before the exemption described in subparagraph 2. of this paragraph takes effect with respect to that substance;
  9. “Counterfeit substance” means a controlled substance which, or the container or labeling of which, without authorization, bears the trademark, trade name, or other identifying mark, imprint, number, or device, or any likeness thereof, of a manufacturer, distributor, or dispenser other than the person who in fact manufactured, distributed, or dispensed the substance;
  10. “Dispense” means to deliver a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the packaging, labeling, or compounding necessary to prepare the substance for that delivery;
  11. “Dispenser” means a person who lawfully dispenses a Schedule II, III, IV, or V controlled substance to or for the use of an ultimate user;
  12. “Distribute” means to deliver other than by administering or dispensing a controlled substance;
  13. “Dosage unit” means a single pill, capsule, ampule, liquid, or other form of administration available as a single unit;
  14. “Drug” means:
    1. Substances recognized as drugs in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them;
    2. Substances intended for use in the diagnosis, care, mitigation, treatment, or prevention of disease in man or animals;
    3. Substances (other than food) intended to affect the structure or any function of the body of man or animals; and
    4. Substances intended for use as a component of any article specified in this subsection. It does not include devices or their components, parts, or accessories;
  15. “Fentanyl” means a substance containing any quantity of fentanyl, or any of its salts, isomers, or salts of isomers;
  16. “Fentanyl derivative” means a substance containing any quantity of any chemical compound, except compounds specifically scheduled as controlled substances by statute or by administrative regulation pursuant to this chapter, which is structurally derived from 1-ethyl-4-(N-phenylamido) piperadine:
    1. By substitution:
      1. At the 2-position of the 1-ethyl group with a phenyl, furan, thiophene, or ethyloxotetrazole ring system; and
      2. Of the terminal amido hydrogen atom with an alkyl, alkoxy, cycloalkyl, or furanyl group; and
    2. Which may be further modified in one (1) or more of the following ways:
      1. By substitution on the N-phenyl ring to any extent with alkyl, alkoxy, haloalkyl, hydroxyl, or halide substituents;
      2. By substitution on the piperadine ring to any extent with alkyl, allyl, alkoxy, hydroxy, or halide substituents at the 2-, 3-, 5-, and/or 6- positions;
      3. By substitution on the piperadine ring to any extent with a phenyl, alkoxy, or carboxylate ester substituent at the 4-position; or
      4. By substitution on the 1-ethyl group to any extent with alkyl, alkoxy, or hydroxy substituents;
  17. “Good faith prior examination,” as used in KRS Chapter 218A and for criminal prosecution only, means an in-person medical examination of the patient conducted by the prescribing practitioner or other health-care professional routinely relied upon in the ordinary course of his or her practice, at which time the patient is physically examined and a medical history of the patient is obtained. “In-person” includes telehealth examinations. This subsection shall not be applicable to hospice providers licensed pursuant to KRS Chapter 216B;
  18. “Hazardous chemical substance” includes any chemical substance used or intended for use in the illegal manufacture of a controlled substance as defined in this section or the illegal manufacture of methamphetamine as defined in KRS 218A.1431 , which:
    1. Poses an explosion hazard;
    2. Poses a fire hazard; or
    3. Is poisonous or injurious if handled, swallowed, or inhaled;
  19. “Heroin” means a substance containing any quantity of heroin, or any of its salts, isomers, or salts of isomers;
  20. “Hydrocodone combination product” means a drug with:
    1. Not more than three hundred (300) milligrams of dihydrocodeinone, or any of its salts, per one hundred (100) milliliters or not more than fifteen (15) milligrams per dosage unit, with a fourfold or greater quantity of an isoquinoline alkaloid of opium; or
    2. Not more than three hundred (300) milligrams of dihydrocodeinone, or any of its salts, per one hundred (100) milliliters or not more than fifteen (15) milligrams per dosage unit, with one (1) or more active, nonnarcotic ingredients in recognized therapeutic amounts;
  21. “Immediate precursor” means a substance which is the principal compound commonly used or produced primarily for use, and which is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance or methamphetamine, the control of which is necessary to prevent, curtail, or limit manufacture;
  22. “Industrial hemp” has the same meaning as in KRS 260.850 ;
  23. “Industrial hemp products” has the same meaning as in KRS 260.850 ;
  24. “Intent to manufacture” means any evidence which demonstrates a person’s conscious objective to manufacture a controlled substance or methamphetamine. Such evidence includes but is not limited to statements and a chemical substance’s usage, quantity, manner of storage, or proximity to other chemical substances or equipment used to manufacture a controlled substance or methamphetamine;
  25. “Isomer” means the optical isomer, except the Cabinet for Health and Family Services may include the optical, positional, or geometric isomer to classify any substance pursuant to KRS 218A.020 ;
  26. “Manufacture,” except as provided in KRS 218A.1431 , means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container except that this term does not include activities:
    1. By a practitioner as an incident to his or her administering or dispensing of a controlled substance in the course of his or her professional practice;
    2. By a practitioner, or by his or her authorized agent under his supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale; or
    3. By a pharmacist as an incident to his or her dispensing of a controlled substance in the course of his or her professional practice;
  27. “Marijuana” means all parts of the plant Cannabis sp., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin or any compound, mixture, or preparation which contains any quantity of these substances. The term “marijuana” does not include:
    1. Industrial hemp that is in the possession, custody, or control of a person who holds a license issued by the Department of Agriculture permitting that person to cultivate, handle, or process industrial hemp;
    2. Industrial hemp products that do not include any living plants, viable seeds, leaf materials, or floral materials;
    3. The substance cannabidiol, when transferred, dispensed, or administered pursuant to the written order of a physician practicing at a hospital or associated clinic affiliated with a Kentucky public university having a college or school of medicine;
    4. For persons participating in a clinical trial or in an expanded access program, a drug or substance approved for the use of those participants by the United States Food and Drug Administration;
    5. A cannabidiol product derived from industrial hemp, as defined in KRS 260.850 ; or
    6. A cannabidiol product approved as a prescription medication by the United States Food and Drug Administration;
  28. “Medical history,” as used in KRS Chapter 218A and for criminal prosecution only, means an accounting of a patient’s medical background, including but not limited to prior medical conditions, prescriptions, and family background;
  29. “Medical order,” as used in KRS Chapter 218A and for criminal prosecution only, means a lawful order of a specifically identified practitioner for a specifically identified patient for the patient’s health-care needs. “Medical order” may or may not include a prescription drug order;
  30. “Medical record,” as used in KRS Chapter 218A and for criminal prosecution only, means a record, other than for financial or billing purposes, relating to a patient, kept by a practitioner as a result of the practitioner-patient relationship;
  31. “Methamphetamine” means any substance that contains any quantity of methamphetamine, or any of its salts, isomers, or salts of isomers;
  32. “Narcotic drug” means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:
    1. Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate;
    2. Any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of the substances referred to in paragraph (a) of this subsection, but not including the isoquinoline alkaloids of opium;
    3. Opium poppy and poppy straw;
    4. Coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;
    5. Cocaine, its salts, optical and geometric isomers, and salts of isomers;
    6. Ecgonine, its derivatives, their salts, isomers, and salts of isomers; and
    7. Any compound, mixture, or preparation which contains any quantity of any of the substances referred to in paragraphs (a) to (f) of this subsection;
  33. “Opiate” means any substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addiction-forming or addiction-sustaining liability. It does not include, unless specifically designated as controlled under KRS 218A.020 , the dextrorotatory isomer of 3-methoxy-n-methylmorphinan and its salts (dextromethorphan). It does include its racemic and levorotatory forms;
  34. “Opium poppy” means the plant of the species papaver somniferum L., except its seeds;
  35. “Person” means individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity;
  36. “Physical injury” has the same meaning it has in KRS 500.080 ;
  37. “Poppy straw” means all parts, except the seeds, of the opium poppy, after mowing;
  38. “Pharmacist” means a natural person licensed by this state to engage in the practice of the profession of pharmacy;
  39. “Practitioner” means a physician, dentist, podiatrist, veterinarian, scientific investigator, optometrist as authorized in KRS 320.240 , advanced practice registered nurse as authorized under KRS 314.011 , physician assistant as authorized under KRS 311.858 , or other person licensed, registered, or otherwise permitted by state or federal law to acquire, distribute, dispense, conduct research with respect to, or to administer a controlled substance in the course of professional practice or research in this state. “Practitioner” also includes a physician, dentist, podiatrist, veterinarian, or advanced practice registered nurse authorized under KRS 314.011 who is a resident of and actively practicing in a state other than Kentucky and who is licensed and has prescriptive authority for controlled substances under the professional licensing laws of another state, unless the person’s Kentucky license has been revoked, suspended, restricted, or probated, in which case the terms of the Kentucky license shall prevail;
  40. “Practitioner-patient relationship,” as used in KRS Chapter 218A and for criminal prosecution only, means a medical relationship that exists between a patient and a practitioner or the practitioner’s designee, after the practitioner or his or her designee has conducted at least one (1) good faith prior examination;
  41. “Prescription” means a written, electronic, or oral order for a drug or medicine, or combination or mixture of drugs or medicines, or proprietary preparation, signed or given or authorized by a medical, dental, chiropody, veterinarian, optometric practitioner, or advanced practice registered nurse, and intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals;
  42. “Prescription blank,” with reference to a controlled substance, means a document that meets the requirements of KRS 218A.204 and 217.216 ;
  43. “Presumptive probation” means a sentence of probation not to exceed the maximum term specified for the offense, subject to conditions otherwise authorized by law, that is presumed to be the appropriate sentence for certain offenses designated in this chapter, notwithstanding contrary provisions of KRS Chapter 533. That presumption shall only be overcome by a finding on the record by the sentencing court of substantial and compelling reasons why the defendant cannot be safely and effectively supervised in the community, is not amenable to community-based treatment, or poses a significant risk to public safety;
  44. “Production” includes the manufacture, planting, cultivation, growing, or harvesting of a controlled substance;
  45. “Recovery program” means an evidence-based, nonclinical service that assists individuals and families working toward sustained recovery from substance use and other criminal risk factors. This can be done through an array of support programs and services that are delivered through residential and nonresidential means;
  46. “Salvia” means Salvia divinorum or Salvinorin A and includes all parts of the plant presently classified botanically as Salvia divinorum, whether growing or not, the seeds thereof, any extract from any part of that plant, and every compound, manufacture, derivative, mixture, or preparation of that plant, its seeds, or its extracts, including salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation of that plant, its seeds, or extracts. The term shall not include any other species in the genus salvia;
  47. “Second or subsequent offense” means that for the purposes of this chapter an offense is considered as a second or subsequent offense, if, prior to his or her conviction of the offense, the offender has at any time been convicted under this chapter, or under any statute of the United States, or of any state relating to substances classified as controlled substances or counterfeit substances, except that a prior conviction for a nontrafficking offense shall be treated as a prior offense only when the subsequent offense is a nontrafficking offense. For the purposes of this section, a conviction voided under KRS 218A.275 or 218A.276 shall not constitute a conviction under this chapter;
  48. “Sell” means to dispose of a controlled substance to another person for consideration or in furtherance of commercial distribution;
  49. “Serious physical injury” has the same meaning it has in KRS 500.080 ;
  50. “Synthetic cannabinoids or piperazines” means any chemical compound which is not approved by the United States Food and Drug Administration or, if approved, which is not dispensed or possessed in accordance with state and federal law, that contains Benzylpiperazine (BZP); Trifluoromethylphenylpiperazine (TFMPP); 1,1-Dimethylheptyl-11-hydroxytetrahydrocannabinol (HU-210); 1-Butyl-3-(1-naphthoyl)indole; 1-Pentyl-3-(1-naphthoyl)indole; dexanabinol (HU-211); or any compound in the following structural classes:
    1. Naphthoylindoles: Any compound containing a 3-(1-naphthoyl)indole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group, whether or not further substituted in the indole ring to any extent and whether or not substituted in the naphthyl ring to any extent. Examples of this structural class include but are not limited to JWH-015, JWH-018, JWH-019, JWH-073, JWH-081, JWH-122, JWH-200, and AM-2201;
    2. Phenylacetylindoles: Any compound containing a 3-phenylacetylindole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group whether or not further substituted in the indole ring to any extent and whether or not substituted in the phenyl ring to any extent. Examples of this structural class include but are not limited to JWH-167, JWH-250, JWH-251, and RCS-8;
    3. Benzoylindoles: Any compound containing a 3-(benzoyl)indole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group whether or not further substituted in the indole ring to any extent and whether or not substituted in the phenyl ring to any extent. Examples of this structural class include but are not limited to AM-630, AM-2233, AM-694, Pravadoline (WIN 48,098), and RCS-4;
    4. Cyclohexylphenols: Any compound containing a 2-(3-hydroxycyclohexyl)phenol structure with substitution at the 5-position of the phenolic ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group whether or not substituted in the cyclohexyl ring to any extent. Examples of this structural class include but are not limited to CP 47,497 and its C8 homologue (cannabicyclohexanol);
    5. Naphthylmethylindoles: Any compound containing a 1H-indol-3-yl-(1-naphthyl)methane structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group whether or not further substituted in the indole ring to any extent and whether or not substituted in the naphthyl ring to any extent. Examples of this structural class include but are not limited to JWH-175, JWH-184, and JWH-185;
    6. Naphthoylpyrroles: Any compound containing a 3-(1-naphthoyl)pyrrole structure with substitution at the nitrogen atom of the pyrrole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group whether or not further substituted in the pyrrole ring to any extent and whether or not substituted in the naphthyl ring to any extent. Examples of this structural class include but are not limited to JWH-030, JWH-145, JWH-146, JWH-307, and JWH-368;
    7. Naphthylmethylindenes: Any compound containing a 1-(1-naphthylmethyl)indene structure with substitution at the 3-position of the indene ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl) ethyl group whether or not further substituted in the indene ring to any extent and whether or not substituted in the naphthyl ring to any extent. Examples of this structural class include but are not limited to JWH-176;
    8. Tetramethylcyclopropanoylindoles: Any compound containing a 3-(1-tetramethylcyclopropoyl)indole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl) ethyl group, whether or not further substituted in the indole ring to any extent and whether or not further substituted in the tetramethylcyclopropyl ring to any extent. Examples of this structural class include but are not limited to UR-144 and XLR-11;
    9. Adamantoylindoles: Any compound containing a 3-(1-adamantoyl)indole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group, whether or not further substituted in the indole ring to any extent and whether or not substituted in the adamantyl ring system to any extent. Examples of this structural class include but are not limited to AB-001 and AM-1248; or
    10. Any other synthetic cannabinoid or piperazine which is not approved by the United States Food and Drug Administration or, if approved, which is not dispensed or possessed in accordance with state and federal law;
  51. “Synthetic cathinones” means any chemical compound which is not approved by the United States Food and Drug Administration or, if approved, which is not dispensed or possessed in accordance with state and federal law (not including bupropion or compounds listed under a different schedule) structurally derived from 2-aminopropan-1-one by substitution at the 1-position with either phenyl, naphthyl, or thiophene ring systems, whether or not the compound is further modified in one (1) or more of the following ways:
    1. By substitution in the ring system to any extent with alkyl, alkylenedioxy, alkoxy, haloalkyl, hydroxyl, or halide substituents, whether or not further substituted in the ring system by one (1) or more other univalent substituents. Examples of this class include but are not limited to 3, 4-Methylenedioxycathinone (bk-MDA);
    2. By substitution at the 3-position with an acyclic alkyl substituent. Examples of this class include but are not limited to 2-methylamino-1-phenylbutan-1-one (buphedrone);
    3. By substitution at the 2-amino nitrogen atom with alkyl, dialkyl, benzyl, or methoxybenzyl groups, or by inclusion of the 2-amino nitrogen atom in a cyclic structure. Examples of this class include but are not limited to Dimethylcathinone, Ethcathinone, and a-Pyrrolidinopropiophenone (a-PPP); or
    4. Any other synthetic cathinone which is not approved by the United States Food and Drug Administration or, if approved, is not dispensed or possessed in accordance with state or federal law;
  52. “Synthetic drugs” means any synthetic cannabinoids or piperazines or any synthetic cathinones;
  53. “Telehealth” has the same meaning it has in KRS 311.550 ;
  54. “Tetrahydrocannabinols” means synthetic equivalents of the substances contained in the plant, or in the resinous extractives of the plant Cannabis, sp. or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as the following:
    1. Delta 1 cis or trans tetrahydrocannabinol, and their optical isomers;
    2. Delta 6 cis or trans tetrahydrocannabinol, and their optical isomers; and
    3. Delta 3, 4 cis or trans tetrahydrocannabinol, and its optical isomers;
  55. “Traffic,” except as provided in KRS 218A.1431 , means to manufacture, distribute, dispense, sell, transfer, or possess with intent to manufacture, distribute, dispense, or sell a controlled substance;
  56. “Transfer” means to dispose of a controlled substance to another person without consideration and not in furtherance of commercial distribution; and
  57. “Ultimate user” means a person who lawfully possesses a controlled substance for his or her own use or for the use of a member of his or her household or for administering to an animal owned by him or her or by a member of his or her household.

History. Enact. Acts 1972, ch. 226, § 2; 1974, ch. 225, § 5; 1992, ch. 441, § 1, effective July 14, 1992; 1994, ch. 412, § 2, effective July 15, 1994; 1996, ch. 376, § 3, effective July 15, 1996; 1998, ch. 301, § 12, effective July 15, 1998; 1998, ch. 606, § 62, effective July 15, 1998; 2003, ch. 51, § 3, effective June 24, 2003; 2005, ch. 99, § 527, effective June 20, 2005; 2005, ch. 150, § 7, effective June 20, 2005; 2006, ch. 5, § 4, effective July 12, 2006; 2007, ch. 124, § 1, effective June 26, 2007; 2009, ch. 12, § 48, effective June 25, 2009; 2010, ch. 85, § 42, effective July 15, 2010; 2010, ch. 149, § 4, effective April 13, 2010; 2010, ch. 160, § 4, effective April 26, 2010; 2011, ch. 2, § 5, effective June 8, 2011; 2011, ch. 45, § 15, effective March 16, 2011; 2012, ch. 108, § 3, effective April 11, 2012; 2013, ch. 26, § 1, effective March 19, 2013; 2013, ch. 134, § 15, effective June 25, 2013; 2014, ch. 112, § 1, effective April 10, 2014; 2016 ch. 135, § 1, effective April 27, 2016; 2017 ch. 45, § 12, effective June 29, 2017; 2017 ch. 61, § 1, effective June 29, 2017; 2017 ch. 168, § 1, effective June 29, 2017; 2019 ch. 84, § 4, effective June 27, 2019; 2020 ch. 39, § 9, effective July 15, 2020.

Legislative Research Commission Notes.

(4/10/2014). 2014 Ky. Acts ch. 112, sec. 2 provided that the amendments made to this statute in Section 1 of that Act shall be known and may be cited as the “Clara Madeline Gilliam Act.”

(4/11/2012). Under the authority of KRS 7.136(1), the Reviser of Statutes has altered the format of the text in subsection (48) of this statute during codification. The words in the text were not changed.

NOTES TO DECISIONS

1.Constitutionality.

The 1992 amendment to the statutory definition of marijuana, which deleted the exception for, inter alia, mature stalks of the plant and fiber produced from the stalks, and which deemed all parts of the plant a controlled substance, is constitutional as it is not impermissibly vague or overbroad and as there is a rational basis for including hemp in the definition of marijuana. Commonwealth v. Harrelson, 14 S.W.3d 541, 2000 Ky. LEXIS 25 ( Ky. 2000 ).

This section was not unconstitutional because it enhanced the punishment of a second offense regardless of when the prior offense occurred and thus, the trial court did not err by allowing the Commonwealth to introduce prior convictions for sentence enhancement. Lamb v. Commonwealth, 510 S.W.3d 316, 2017 Ky. LEXIS 92 ( Ky. 2017 ).

2.Applicability.

Where defendant was tried for the alleged unlawful sale of narcotics ten (10) days after this act (Controlled Substances Act) became effective, trial court was not obligated to inform defendant of his right to elect to be tried under this new law which provided for lesser penalties than the former drug law. Brown v. Commonwealth, 511 S.W.2d 209, 1974 Ky. LEXIS 476 ( Ky. 1974 ).

Sufficient evidence existed upon which a jury could find that defendant engaged in the sale of cocaine because evidence was presented that the informant knew defendant was a drug dealer, the informant called defendant’s cell phone to arrange a purchase of drugs, the informant stated he had $275 to spend, fifteen to thirty minutes after the call defendant arrived at the hotel room with cocaine, and defendant presented the cocaine. Smith v. Commonwealth, 2011 Ky. App. LEXIS 9 (Ky. Ct. App. Jan. 21, 2011), aff'd, 394 S.W.3d 903, 2013 Ky. LEXIS 32 ( Ky. 2013 ).

Defendant charged with drug and drug-related offenses for which KRS 218A.1415(2)(b) deferred prosecution was possible could not use the trial court to order the Commonwealth to place defendant in that program, as KRS 218A.14151 gave the Commonwealth the discretion to decide who would be placed in that program and allowed the Commonwealth to consider KRS 218A.010 probation instead. For the trial court to order it would present a Ky. Const. § 27 separation of powers problem. Reilly v. Commonwealth, 2013 Ky. App. LEXIS 63 (Ky. Ct. App., sub. op., 2013 Ky. App. Unpub. LEXIS 964 (Ky. Ct. App. Apr. 19, 2013).

Trial court did not err in denying defendant's motion for a directed verdict, as the Commonwealth proved he sold more than two grams of methamphetamine pursuant to the definition contained in this section. McGuffin v. Commonwealth, 2016 Ky. App. LEXIS 152 (Ky. Ct. App., sub. op., 2016 Ky. App. Unpub. LEXIS 914 (Ky. Ct. App. Sept. 2, 2016).

3.Instructions.

Where a drug analyst at the University of Kentucky testified that the analysis of the drug showed it to be heroin, the court properly instructed the jury that the heroin was a Schedule I controlled substance pursuant to KRS 218A.050(2) and was a narcotic drug as defined in this section. Shavers v. Commonwealth, 514 S.W.2d 883, 1974 Ky. LEXIS 333 ( Ky. 1974 ).

Trial court committed substantial error under RCr 10.26, and defendant’s conviction for trafficking in a controlled substance was reversed, as the jury was instructed to find defendant guilty if it found that he possessed cocaine with the intent to transfer; KRS 218A.1412(1), KRS 218A.010(28), and KRS 218A.010(29) do not define merely possessing a controlled substance with the intent to transfer as trafficking, and the instruction permitted the jury to convict defendant based on a theory unsupported in the law. Rodefer v. Commonwealth, 2004 Ky. App. LEXIS 140 (Ky. Ct. App. May 14, 2004).

4.Definition of Possession.

The definition of possession set forth in KRS 500.080(14) is the proper definition to be contained in the jury instructions for cases arising under this chapter. Powell v. Commonwealth, 843 S.W.2d 908, 1992 Ky. App. LEXIS 239 (Ky. Ct. App. 1992), overruled, Houston v. Commonwealth, 975 S.W.2d 925, 1998 Ky. LEXIS 123 ( Ky. 1998 ).

5.Standing to Challenge Search.

Defendant charged with possession of controlled substances, an integral part of trafficking in controlled substances, does not have automatic standing to challenge an allegedly illegal search and seizure regardless of whether he has a reasonable expectation of privacy in the searched premises or not, and despite the fact that he claimed ownership of the narcotics during the search. Sussman v. Commonwealth, 610 S.W.2d 608, 1980 Ky. LEXIS 286 ( Ky. 1980 ).

6.Trafficking.

Action of the district court in accepting a plea of guilty to possession charge after return of grand jury’s indictment for trafficking did not preclude a Circuit Court conviction on the same possession charge, since once the indictment was returned charging the offense of trafficking, the District Court no longer had jurisdiction to make a final disposition of the offense of possession, a lesser included offense. Jackson v. Commonwealth, 633 S.W.2d 61, 1982 Ky. LEXIS 246 ( Ky. 1982 ).

Possession of a controlled substance is a lesser offense included within a trafficking charge. Jackson v. Commonwealth, 633 S.W.2d 61, 1982 Ky. LEXIS 246 ( Ky. 1982 ).

Although the jury instruction on trafficking in a controlled substance in the first degree was improper, defendant’s own testimony would have supported a conviction under the “transfer” alternative of KRS 218A.010(34), where defendant testified that he committed the offense, and the faulty instruction did not result in manifest injustice, much less seriously affect the fairness, integrity, or public reputation of judicial proceedings. Commonwealth v. Rodefer, 189 S.W.3d 550, 2006 Ky. LEXIS 109 ( Ky. 2006 ).

Defendant was properly convicted of engaging in organized crime under KRS 506.120 , with manufacturing methamphetamine (KRS 218A.010(34)) as the predicate offense, because illegal trafficking was part of the definition of “criminal syndicate” under KRS 506.120 (3)(e) and 506.120(1)(b). Layton v. Commonwealth, 2007 Ky. App. LEXIS 134 (Ky. Ct. App. May 4, 2007), review denied, ordered not published, 2008 Ky. LEXIS 45 (Ky. Jan. 16, 2008).

At defendant’s trial for two counts of trafficking in a controlled substance and one count of possessing a controlled substance, it was alleged that he possessed more than twenty grams of cocaine found in his garage with the intent to sell it–a form of “trafficking” as that term was defined under KRS 218A.010 . Joinder of the sales and possession-with-intent-to-sell trafficking charges did not unduly prejudice defendant, because evidence of the interrelated charges would have been mutually admissible in separate trials as proof that defendant had the product to make two sales within a 24-hour period to a confidential informant. Rogers v. Commonwealth, 366 S.W.3d 446, 2012 Ky. LEXIS 72 ( Ky. 2012 ).

Evidence was sufficient to sustain convictions for trafficking in a controlled substance because a detective saw defendant climb into the back of a vehicle, even though there was nobody else but the driver in it, the driver held money over the seat, and as he walked away, defendant dropped pills on the ground. Wilson v. Commonwealth, 2012 Ky. App. LEXIS 27 (Ky. Ct. App. Feb. 10, 2012).

Because no evidence was presented during defendant’s trial for first-degree trafficking in a controlled substance to support a criminal facilitation instruction, a trial court was correct in not providing it to the jury. While it was true that by selling crack to another individual, defendant “facilitated” her in what he thought was the commission of a crime, it did not absolve him of his own criminal liability for selling it to her because he was fully aware that he was in fact obtaining and selling drugs, and thus was not just providing another person the means or opportunity to commit a crime. Springfield v. Commonwealth, 410 S.W.3d 589, 2013 Ky. LEXIS 410 ( Ky. 2013 ).

Although there was sufficient evidence to support a jury instruction that defendant intended to traffic in drugs, the trial court erred by allowing the Commonwealth to introduce evidence of a prior trafficking conviction as additional proof of intent to traffic because the Commonwealth offered no evidence that the circumstances surrounding defendant’s prior trafficking conviction were substantially similar to the charged offenses in this case. Jones v. Commonwealth, 567 S.W.3d 922, 2019 Ky. App. LEXIS 14 (Ky. Ct. App. 2019).

Because the Commonwealth put forth sufficient evidence to overcome a motion for directed verdict on the charge of first-degree possession of a controlled substance, the trial court did not err in denying the motion; the evidence was sufficient for a jury to infer that defendant was in actual possession of methamphetamine and tossed it while fleeing police because an officer observed his hand moving away from his body while he was fleeing and recovered the methamphetamine on the ground. McGuire v. Commonwealth, 595 S.W.3d 90, 2019 Ky. LEXIS 435 ( Ky. 2019 ).

Trial court did not err in denying defendant’s motion for directed verdict on the charge of first-degree possession of a controlled substance because the evidence was sufficient for a jury reasonably to infer that defendant possessed methamphetamine with intent to distribute it; a police officer testified that small plastic bags like those found on defendant were commonly used to hold drugs and that the quantity of methamphetamine was inconsistent with personal use. McGuire v. Commonwealth, 595 S.W.3d 90, 2019 Ky. LEXIS 435 ( Ky. 2019 ).

7.Hashish.

Where the testimony of the only witness in a prosecution for trafficking in hashish, clearly showed that hashish and tetrahydrocannabinols (THC) are one and the same, and that both substances are resinous extractions of the plant Cannabis sativa L., the trial court correctly held that there was no rational difference between hashish and marijuana and, therefore, the first offense for trafficking in hashish was, like marijuana, excepted from the penalties under KRS 218A.990(2). Commonwealth v. McGinnis, 641 S.W.2d 45, 1982 Ky. App. LEXIS 258 (Ky. Ct. App. 1982).

8.Marijuana.

Evidence was sufficient to establish that a substance was marijuana, notwithstanding that the state’s expert did not testify that the substance was of the cannabis species, where the expert testified that the substance was confirmed to be marijuana because it contained the chemical delta-9-tetrahydrocannabinol. Taylor v. Commonwealth, 984 S.W.2d 482, 1998 Ky. App. LEXIS 134 (Ky. Ct. App. 1998).

9.Cocaine.

Whether or not cocaine is technically a nonnarcotic, the legislature chose to include cocaine in its definition of narcotics and to treat it the same as a narcotic prior to July 15, 1982; the legislature had a right to do so, and the penalty for possession of this drug was clearly to be one (1) to five (5) years. Sanders v. Commonwealth, 663 S.W.2d 216, 1983 Ky. App. LEXIS 311 (Ky. Ct. App. 1983).

Court of Appeals of Kentucky majority held that the plain language of Ky. Rev. Stat. Ann. § 218A.1412 , paired with the definition of cocaine in Ky. Rev. Stat. Ann. § 218A.010(5), creates a statutory scheme whereby the Commonwealth is not required to prove that pure cocaine accounted for the weight of four grams or more. The Supreme Court of Kentucky agrees with the majority of that court. Hawkins v. Commonwealth, 536 S.W.3d 697, 2017 Ky. LEXIS 517 ( Ky. 2017 ), overruled in part, Ray v. Commonwealth, 611 S.W.3d 250, 2020 Ky. LEXIS 403 ( Ky. 2020 ).

10.Revocation of License.

Repeated violation of the statutes relating to the sale of controlled substances can justify the revocation of the license of the offending pharmacist for unprofessional conduct. Kupper v. Kentucky Bd. of Pharmacy, 666 S.W.2d 729, 1983 Ky. LEXIS 279 ( Ky. 1983 ).

11.Production of Sample Not Required.

In a prosecution for trafficking in marijuana, the commonwealth was not required to produce an actual physical sample of the marijuana. Howard v. Commonwealth, 787 S.W.2d 264, 1989 Ky. App. LEXIS 138 (Ky. Ct. App. 1989).

12.Persistent Felony Offender Enhancement.

The persistent felony offender enhancement under KRS 532.080 is applicable to violations of KRS Chapter 218A, the Controlled Substance Act. Harrison v. Commonwealth, 842 S.W.2d 531, 1992 Ky. App. LEXIS 137 (Ky. Ct. App. 1992).

The persistent felony offender (PFO) statute is applicable to a violation of the Controlled Substance Act, even if the Act is outside the penal code and has its own specific sentencing structure; however, trial court could not sentence defendant under both statutes, albeit concurrently, but could choose one or the other. Peyton v. Commonwealth, 931 S.W.2d 451, 1996 Ky. LEXIS 87 ( Ky. 1996 ), overruled, Kirkland v. Commonwealth, 2001 Ky. LEXIS 165 (Ky. Sept. 27, 2001), overruled, Murphy v. Commonwealth, 50 S.W.3d 173, 2001 Ky. LEXIS 81 ( Ky. 2001 ), overruled, Kirkland v. Commonwealth, 53 S.W.3d 71, 2001 Ky. LEXIS 97 ( Ky. 2001 ).

The language of subsection (21) of this section which defines a “second or subsequent offense,” as being one which occurs after any other state or federal law, clearly does not require the underlying prior drug trafficking conviction to be a conviction for trafficking in marijuana in order for it to be relied upon to enhance a subsequent conviction pursuant to KRS 218A.1421(2). Commonwealth v. Churchwell, 938 S.W.2d 586, 1996 Ky. App. LEXIS 186 (Ky. Ct. App. 1996).

13.Second or Subsequent Offense.

When determining whether a conviction for trafficking in marijuana constitutes a second or subsequent offense for the purposes of KRS 218A.1421(2), no distinction should be made between prior convictions for trafficking in marijuana and prior convictions for trafficking in other illegal drugs. Commonwealth v. Churchwell, 938 S.W.2d 586, 1996 Ky. App. LEXIS 186 (Ky. Ct. App. 1996).

Because KRS 218A.010(35) did not require that an underlying prior drug trafficking offense be a felony conviction in order for it to enhance a future conviction as a second or subsequent offense, defendant’s prior misdemeanor marijuana trafficking conviction supported the enhancement of his trafficking charge to a second or subsequent offense. Jackson v. Commonwealth, 319 S.W.3d 347, 2010 Ky. LEXIS 218 ( Ky. 2010 ).

14.Immediate Precursors.

Ephedrine or pseudoephedrine is an immediate precursor of methamphetamine. Commonwealth v. Hayward, 49 S.W.3d 674, 2001 Ky. LEXIS 4 ( Ky. 2001 ).

Cited:

Gaston v. Commonwealth, 533 S.W.2d 533, 1976 Ky. LEXIS 114 ( Ky. 1976 ); Gambrel v. Kentucky Bd. of Dentistry, 689 F.2d 612, 1982 U.S. App. LEXIS 25348 (6th Cir. 1982); Morrow v. Commonwealth, 77 S.W.3d 558, 2002 Ky. LEXIS 133 ( Ky. 2002 ).

Opinions of Attorney General.

Kentucky pharmacies and pharmacists may fill prescriptions written by practitioners licensed in Kentucky, their home state, or under the Federal Controlled Substances Act. OAG 99-1 .

Research References and Practice Aids

Kentucky Law Journal.

Palmore, Preface to Symposium on Kentucky Penal Code, 61 Ky. L.J. 620 (1973).

Farabee, The Evolution of Drug Legislation in Kentucky, 61 Ky. L.J. 641 (1973).

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Article: Drug Law Reform-Retreating from an Incarceration Addiction, 98 Ky. L.J. 201 (2009/2010).

Northern Kentucky Law Review.

Lotz, A Survey of Criminal Law Statutes Enacted in 1992, 20 N. Ky. L. Rev. 745 (1993).

2010 General Law Issue: Article: A Call for Reformation of the Federal Sentencing Guidelines Applicable to the Large-Scale Distribution of Anabolic Steroids, 37 N. Ky. L. Rev. 83 (2010).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part 1 Definitions, §§ 9.01 — 9.09C.

218A.010. Definitions for chapter.

As used in this chapter:

  1. “Administer” means the direct application of a controlled substance, whether by injection, inhalation, ingestion, or any other means, to the body of a patient or research subject by:
    1. A practitioner or by his or her authorized agent under his or her immediate supervision and pursuant to his or her order; or
    2. The patient or research subject at the direction and in the presence of the practitioner;
  2. “Anabolic steroid” means any drug or hormonal substance chemically and pharmacologically related to testosterone that promotes muscle growth and includes those substances classified as Schedule III controlled substances pursuant to KRS 218A.020 but does not include estrogens, progestins, and anticosteroids;
  3. “Cabinet” means the Cabinet for Health and Family Services;
  4. “Carfentanil” means any substance containing any quantity of carfentanil, or any of its salts, isomers, or salts of isomers;
  5. “Certified community based palliative care program” means a palliative care program which has received certification from the Joint Commission;
  6. “Child” means any person under the age of majority as specified in KRS 2.015 ;
  7. “Cocaine” means a substance containing any quantity of cocaine, its salts, optical and geometric isomers, and salts of isomers;
  8. “Controlled substance” means methamphetamine, or a drug, substance, or immediate precursor in Schedules I through V and includes a controlled substance analogue;
    1. “Controlled substance analogue,” except as provided in paragraph (b) of this subsection, means a substance: (9) (a) “Controlled substance analogue,” except as provided in paragraph (b) of this subsection, means a substance:
      1. The chemical structure of which is substantially similar to the structure of a controlled substance in Schedule I or II; and
      2. Which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in Schedule I or II; or
      3. With respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in Schedule I or II.
    2. Such term does not include:
      1. Any substance for which there is an approved new drug application;
      2. With respect to a particular person, any substance if an exemption is in effect for investigational use for that person pursuant to federal law to the extent conduct with respect to such substance is pursuant to such exemption; or
      3. Any substance to the extent not intended for human consumption before the exemption described in subparagraph 2. of this paragraph takes effect with respect to that substance;
  9. “Counterfeit substance” means a controlled substance which, or the container or labeling of which, without authorization, bears the trademark, trade name, or other identifying mark, imprint, number, or device, or any likeness thereof, of a manufacturer, distributor, or dispenser other than the person who in fact manufactured, distributed, or dispensed the substance;
  10. “Dispense” means to deliver a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the packaging, labeling, or compounding necessary to prepare the substance for that delivery;
  11. “Dispenser” means a person who lawfully dispenses a Schedule II, III, IV, or V controlled substance to or for the use of an ultimate user;
  12. “Distribute” means to deliver other than by administering or dispensing a controlled substance;
  13. “Dosage unit” means a single pill, capsule, ampule, liquid, or other form of administration available as a single unit;
  14. “Drug” means:
    1. Substances recognized as drugs in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them;
    2. Substances intended for use in the diagnosis, care, mitigation, treatment, or prevention of disease in man or animals;
    3. Substances (other than food) intended to affect the structure or any function of the body of man or animals; and
    4. Substances intended for use as a component of any article specified in this subsection.

      It does not include devices or their components, parts, or accessories;

  15. “Fentanyl” means a substance containing any quantity of fentanyl, or any of its salts, isomers, or salts of isomers;
  16. “Fentanyl derivative” means a substance containing any quantity of any chemical compound, except compounds specifically scheduled as controlled substances by statute or by administrative regulation pursuant to this chapter, which is structurally derived from 1-ethyl-4-(N-phenylamido) piperadine:
    1. By substitution:
      1. At the 2-position of the 1-ethyl group with a phenyl, furan, thiophene, or ethyloxotetrazole ring system; and
      2. Of the terminal amido hydrogen atom with an alkyl, alkoxy, cycloalkyl, or furanyl group; and
    2. Which may be further modified in one (1) or more of the following ways:
      1. By substitution on the N-phenyl ring to any extent with alkyl, alkoxy, haloalkyl, hydroxyl, or halide substituents;
      2. By substitution on the piperadine ring to any extent with alkyl, allyl, alkoxy, hydroxy, or halide substituents at the 2-, 3-, 5-, and/or 6-positions;
      3. By substitution on the piperadine ring to any extent with a phenyl, alkoxy, or carboxylate ester substituent at the 4-position; or
      4. By substitution on the 1-ethyl group to any extent with alkyl, alkoxy, or hydroxy substituents;
  17. “Good faith prior examination,” as used in KRS Chapter 218A and for criminal prosecution only, means an in-person medical examination of the patient conducted by the prescribing practitioner or other health-care professional routinely relied upon in the ordinary course of his or her practice, at which time the patient is physically examined and a medical history of the patient is obtained. “In-person” includes telehealth examinations. This subsection shall not be applicable to hospice providers licensed pursuant to KRS Chapter 216B;
  18. “Hazardous chemical substance” includes any chemical substance used or intended for use in the illegal manufacture of a controlled substance as defined in this section or the illegal manufacture of methamphetamine as defined in KRS 218A.1431 , which:
    1. Poses an explosion hazard;
    2. Poses a fire hazard; or
    3. Is poisonous or injurious if handled, swallowed, or inhaled;
  19. “Heroin” means a substance containing any quantity of heroin, or any of its salts, isomers, or salts of isomers;
  20. “Hydrocodone combination product” means a drug with:
    1. Not more than three hundred (300) milligrams of dihydrocodeinone, or any of its salts, per one hundred (100) milliliters or not more than fifteen (15) milligrams per dosage unit, with a fourfold or greater quantity of an isoquinoline alkaloid of opium; or
    2. Not more than three hundred (300) milligrams of dihydrocodeinone, or any of its salts, per one hundred (100) milliliters or not more than fifteen (15) milligrams per dosage unit, with one (1) or more active, nonnarcotic ingredients in recognized therapeutic amounts;
  21. “Immediate precursor” means a substance which is the principal compound commonly used or produced primarily for use, and which is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance or methamphetamine, the control of which is necessary to prevent, curtail, or limit manufacture;
  22. “Industrial hemp” has the same meaning as in KRS 260.850 ;
  23. “Industrial hemp products” has the same meaning as in KRS 260.850 ;
  24. “Intent to manufacture” means any evidence which demonstrates a person’s conscious objective to manufacture a controlled substance or methamphetamine. Such evidence includes but is not limited to statements and a chemical substance’s usage, quantity, manner of storage, or proximity to other chemical substances or equipment used to manufacture a controlled substance or methamphetamine;
  25. “Isomer” means the optical isomer, except the Cabinet for Health and Family Services may include the optical, positional, or geometric isomer to classify any substance pursuant to KRS 218A.020 ;
  26. “Manufacture,” except as provided in KRS 218A.1431 , means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container except that this term does not include activities:
    1. By a practitioner as an incident to his or her administering or dispensing of a controlled substance in the course of his or her professional practice;
    2. By a practitioner, or by his or her authorized agent under his supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale; or
    3. By a pharmacist as an incident to his or her dispensing of a controlled substance in the course of his or her professional practice;
  27. “Marijuana” means all parts of the plant Cannabis sp., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin or any compound, mixture, or preparation which contains any quantity of these substances. The term “marijuana” does not include:
    1. Industrial hemp that is in the possession, custody, or control of a person who holds a license issued by the Department of Agriculture permitting that person to cultivate, handle, or process industrial hemp;
    2. Industrial hemp products that do not include any living plants, viable seeds, leaf materials, or floral materials;
    3. The substance cannabidiol, when transferred, dispensed, or administered pursuant to the written order of a physician practicing at a hospital or associated clinic affiliated with a Kentucky public university having a college or school of medicine;
    4. For persons participating in a clinical trial or in an expanded access program, a drug or substance approved for the use of those participants by the United States Food and Drug Administration;
    5. A cannabidiol product derived from industrial hemp, as defined in KRS 260.850 ;
    6. For the purpose of conducting scientific research, a cannabinoid product derived from industrial hemp, as defined in KRS 260.850 ; or
    7. A cannabinoid product approved as a prescription medication by the United States Food and Drug Administration;
  28. “Medical history,” as used in KRS Chapter 218A and for criminal prosecution only, means an accounting of a patient’s medical background, including but not limited to prior medical conditions, prescriptions, and family background;
  29. “Medical order,” as used in KRS Chapter 218A and for criminal prosecution only, means a lawful order of a specifically identified practitioner for a specifically identified patient for the patient’s health-care needs. “Medical order” may or may not include a prescription drug order;
  30. “Medical record,” as used in KRS Chapter 218A and for criminal prosecution only, means a record, other than for financial or billing purposes, relating to a patient, kept by a practitioner as a result of the practitioner-patient relationship;
  31. “Methamphetamine” means any substance that contains any quantity of methamphetamine, or any of its salts, isomers, or salts of isomers;
  32. “Narcotic drug” means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:
    1. Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate;
    2. Any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of the substances referred to in paragraph (a) of this subsection, but not including the isoquinoline alkaloids of opium;
    3. Opium poppy and poppy straw;
    4. Coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;
    5. Cocaine, its salts, optical and geometric isomers, and salts of isomers;
    6. Ecgonine, its derivatives, their salts, isomers, and salts of isomers; and
    7. Any compound, mixture, or preparation which contains any quantity of any of the substances referred to in paragraphs (a) to (f) of this subsection;
  33. “Opiate” means any substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addiction-forming or addiction-sustaining liability. It does not include, unless specifically designated as controlled under KRS 218A.020 , the dextrorotatory isomer of 3-methoxy-n-methylmorphinan and its salts (dextromethorphan). It does include its racemic and levorotatory forms;
  34. “Opium poppy” means the plant of the species papaver somniferum L., except its seeds;
  35. “Person” means individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity;
  36. “Physical injury” has the same meaning it has in KRS 500.080 ;
  37. “Poppy straw” means all parts, except the seeds, of the opium poppy, after mowing;
  38. “Pharmacist” means a natural person licensed by this state to engage in the practice of the profession of pharmacy;
  39. “Practitioner” means a physician, dentist, podiatrist, veterinarian, scientific investigator, optometrist as authorized in KRS 320.240 , advanced practice registered nurse as authorized under KRS 314.011 , physician assistant as authorized under KRS 311.858 , or other person licensed, registered, or otherwise permitted by state or federal law to acquire, distribute, dispense, conduct research with respect to, or to administer a controlled substance in the course of professional practice or research in this state. “Practitioner” also includes a physician, dentist, podiatrist, veterinarian, or advanced practice registered nurse authorized under KRS 314.011 who is a resident of and actively practicing in a state other than Kentucky and who is licensed and has prescriptive authority for controlled substances under the professional licensing laws of another state, unless the person’s Kentucky license has been revoked, suspended, restricted, or probated, in which case the terms of the Kentucky license shall prevail;
  40. “Practitioner-patient relationship,” as used in KRS Chapter 218A and for criminal prosecution only, means a medical relationship that exists between a patient and a practitioner or the practitioner’s designee, after the practitioner or his or her designee has conducted at least one (1) good faith prior examination;
  41. “Prescription” means a written, electronic, or oral order for a drug or medicine, or combination or mixture of drugs or medicines, or proprietary preparation, signed or given or authorized by a medical, dental, chiropody, veterinarian, optometric practitioner, or advanced practice registered nurse, and intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals;
  42. “Prescription blank,” with reference to a controlled substance, means a document that meets the requirements of KRS 218A.204 and 217.216 ;
  43. “Presumptive probation” means a sentence of probation not to exceed the maximum term specified for the offense, subject to conditions otherwise authorized by law, that is presumed to be the appropriate sentence for certain offenses designated inthis chapter, notwithstanding contrary provisions of KRS Chapter 533. That presumption shall only be overcome by a finding on the record by the sentencing court of substantial and compelling reasons why the defendant cannot be safely and effectively supervised in the community, is not amenable to community-based treatment, or poses a significant risk to public safety;
  44. “Production” includes the manufacture, planting, cultivation, growing, or harvesting of a controlled substance;
  45. “Recovery program” means an evidence-based, nonclinical service that assists individuals and families working toward sustained recovery from substance use and other criminal risk factors. This can be done through an array of support programs and services that are delivered through residential and nonresidential means;
  46. “Salvia” means Salvia divinorum or Salvinorin A and includes all parts of the plant presently classified botanically as Salvia divinorum, whether growing or not, the seeds thereof, any extract from any part of that plant, and every compound, manufacture, derivative, mixture, or preparation of that plant, its seeds, or its extracts, including salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation of that plant, its seeds, or extracts. The term shall not include any other species in the genus salvia;
  47. “Second or subsequent offense” means that for the purposes of this chapter an offense is considered as a second or subsequent offense, if, prior to his or her conviction of the offense, the offender has at any time been convicted under this chapter, or under any statute of the United States, or of any state relating to substances classified as controlled substances or counterfeit substances, except that a prior conviction for a nontrafficking offense shall be treated as a prior offense only when the subsequent offense is a nontrafficking offense. For the purposes of this section, a conviction voided under KRS 218A.275 or 218A.276 shall notconstitute a conviction under this chapter;
  48. “Sell” means to dispose of a controlled substance to another person for consideration or in furtherance of commercial distribution;
  49. “Serious physical injury” has the same meaning it has in KRS 500.080 ;
  50. “Synthetic cannabinoids or piperazines” means any chemical compound which is not approved by the United States Food and Drug Administration or, if approved, which is not dispensed or possessed in accordance with state and federal law, that contains Benzylpiperazine (BZP); Trifluoromethylphenylpiperazine (TFMPP); 1,1-Dimethylheptyl-11-hydroxytetrahydrocannabinol (HU-210); 1-Butyl-3-(1-naphthoyl)indole; 1-Pentyl-3-(1-naphthoyl)indole; dexanabinol (HU-211); or any compound in the following structural classes:
    1. Naphthoylindoles: Any compound containing a 3-(1-naphthoyl)indole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group, whether or not further substituted in the indole ring to any extent and whether or not substituted in the naphthyl ring to any extent. Examples of this structural class include but are not limited to JWH-015, JWH-018, JWH-019, JWH-073, JWH-081, JWH-122, JWH-200, and AM-2201;
    2. Phenylacetylindoles: Any compound containing a 3-phenylacetylindole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group whether or not further substituted in the indole ring to any extent and whether or not substituted in the phenyl ring to any extent. Examples of this structural class include but are not limited to JWH-167, JWH-250, JWH-251, and RCS-8;
    3. Benzoylindoles: Any compound containing a 3-(benzoyl)indole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group whether or not further substituted in the indole ring to any extent and whether or not substituted in the phenyl ring to any extent. Examples of this structural class include but are not limited to AM-630, AM-2233, AM-694, Pravadoline (WIN 48,098), and RCS-4;
    4. Cyclohexylphenols: Any compound containing a 2-(3-hydroxycyclohexyl)phenol structure with substitution at the 5-position of the phenolic ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group whether or not substituted in the cyclohexyl ring to any extent. Examples of this structural class include but are not limited to CP 47,497 and its C8 homologue (cannabicyclohexanol);
    5. Naphthylmethylindoles: Any compound containing a 1H-indol-3-yl-(1-naphthyl)methane structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group whether or not further substituted in the indole ring to any extent and whether or not substituted in the naphthyl ring to any extent. Examples of this structural class include but are not limited to JWH-175, JWH-184, and JWH-185;
    6. Naphthoylpyrroles: Any compound containing a 3-(1-naphthoyl)pyrrole structure with substitution at the nitrogen atom of the pyrrole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group whether or not further substituted in the pyrrole ring to any extent and whether or not substituted in the naphthyl ring to any extent. Examples of this structural class include but are not limited to JWH-030, JWH-145, JWH-146, JWH-307, and JWH-368;
    7. Naphthylmethylindenes: Any compound containing a 1-(1-naphthylmethyl)indene structure with substitution at the 3-position of the indene ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group whether or not further substituted in the indene ring to any extent and whether or not substituted in the naphthyl ring to any extent. Examples of this structural class include but are not limited to JWH-176;
    8. Tetramethylcyclopropanoylindoles: Any compound containing a 3-(1-tetramethylcyclopropoyl)indole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group, whether or not further substituted in the indole ring to any extent and whether or not further substituted in the tetramethylcyclopropyl ring to any extent. Examples of this structural class include but are not limited to UR-144 and XLR-11;
    9. Adamantoylindoles: Any compound containing a 3-(1-adamantoyl)indole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group, whether or not further substituted in the indole ring to any extent and whether or not substituted in the adamantyl ring system to any extent. Examples of this structural class include but are not limited to AB-001 and AM-1248; or
    10. Any other synthetic cannabinoid or piperazine which is not approved by the United States Food and Drug Administration or, if approved, which is not dispensed or possessed in accordance with state and federal law;
  51. “Synthetic cathinones” means any chemical compound which is not approved by the United States Food and Drug Administration or, if approved, which is not dispensedor possessed in accordance with state and federal law (not including bupropion or compounds listed under a different schedule) structurally derived from 2-aminopropan-1-one by substitution at the 1-position with either phenyl, naphthyl, or thiophene ring systems, whether or not the compound is further modified in one (1) or more of the following ways:
    1. By substitution in the ring system to any extent with alkyl, alkylenedioxy, alkoxy, haloalkyl, hydroxyl, or halide substituents, whether or not further substituted in the ring system by one (1) or more other univalent substituents. Examples of this class include but are not limited to 3,4-Methylenedioxycathinone (bk-MDA);
    2. By substitution at the 3-position with an acyclic alkyl substituent. Examples of this class include but are not limited to 2-methylamino-1-phenylbutan-1-one (buphedrone);
    3. By substitution at the 2-amino nitrogen atom with alkyl, dialkyl, benzyl, or methoxybenzyl groups, or by inclusion of the 2-amino nitrogen atom in a cyclic structure. Examples of this class include but are not limited to Dimethylcathinone, Ethcathinone, and a-Pyrrolidinopropiophenone (a-PPP); or
    4. Any other synthetic cathinone which is not approved by the United States Food and Drug Administration or, if approved, is not dispensed or possessed in accordance with state or federal law;
  52. “Synthetic drugs” means any synthetic cannabinoids or piperazines or any synthetic cathinones;
  53. “Telehealth” has the same meaning it has in KRS 311.550 ;
  54. “Tetrahydrocannabinols” means synthetic equivalents of the substances contained in the plant, or in the resinous extractives of the plant Cannabis, sp. or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as the following:
    1. Delta 1 cis or trans tetrahydrocannabinol, and their optical isomers;
    2. Delta 6 cis or trans tetrahydrocannabinol, and their optical isomers; and
    3. Delta 3, 4 cis or trans tetrahydrocannabinol, and its optical isomers;
  55. “Traffic,” except as provided in KRS 218A.1431 , means to manufacture, distribute, dispense, sell, transfer, or possess with intent to manufacture, distribute, dispense, or sell a controlled substance;
  56. “Transfer” means to dispose of a controlled substance to another person without consideration and not in furtherance of commercial distribution; and
  57. “Ultimate user” means a person who lawfully possesses a controlled substance for his or her own use or for the use of a member of his or her household or for administering to an animal owned by him or her or by a member of his or her household.

HISTORY: Enact. Acts 1972, ch. 226, § 2; 1974, ch. 225, § 5; 1992, ch. 441, § 1, effective July 14, 1992; 1994, ch. 412, § 2, effective July 15, 1994; 1996, ch. 376, § 3, effective July 15, 1996; 1998, ch. 301, § 12, effective July 15, 1998; 1998, ch. 606, § 62, effective July 15, 1998; 2003, ch. 51, § 3, effective June 24, 2003; 2005, ch. 99, § 527, effective June 20, 2005; 2005, ch. 150, § 7, effective June 20, 2005; 2006, ch. 5, § 4, effective July 12, 2006; 2007, ch. 124, § 1, effective June 26, 2007; 2009, ch. 12, § 48, effective June 25, 2009; 2010, ch. 85, § 42, effective July 15, 2010; 2010, ch. 149, § 4, effective April 13, 2010; 2010, ch. 160, § 4, effective April 26, 2010; 2011, ch. 2, § 5, effective June 8, 2011; 2011, ch. 45, § 15, effective March 16, 2011; 2012, ch. 108, § 3, effective April 11, 2012; 2013, ch. 26, § 1, effective March 19, 2013; 2013, ch. 134, § 15, effective June 25, 2013; 2014, ch. 112, § 1, effective April 10, 2014; 2016 ch. 135, § 1, effective April 27, 2016; 2017 ch. 45, § 12, effective June 29, 2017; 2017 ch. 61, § 1, effective June 29, 2017; 2017 ch. 168, § 1, effective June 29, 2017; 2019 ch. 84, § 4, effective June 27, 2019; 2020 ch. 39, § 9, effective July 15, 2020; 2021 ch. 123, § 1.

218A.015. Definitions of mental states.

When used in this chapter, the terms “intentionally,” “knowingly,” “wantonly,” and “recklessly,” including but not limited to equivalent terms such as “with intent,” shall have the same definition and the same principles shall apply to their use as those terms are defined and used in KRS Chapter 501.

History. Enact. Acts 2005, ch. 150, § 8, effective June 20, 2005.

218A.020. Cabinet for Health and Family Services to administer chapter — Control of substances rescheduled under federal law — Office of Drug Control Policy may request scheduling of substances meeting criteria.

  1. The Cabinet for Health and Family Services shall administer this chapter and may by administrative regulation add substances to or delete or reschedule all substances enumerated in the schedules authorized under this chapter. In making a determination regarding a substance, the Cabinet for Health and Family Services may consider the following:
    1. The actual or relative potential for abuse;
    2. The scientific evidence of its pharmacological effect, if known;
    3. The state of current scientific knowledge regarding the substance;
    4. The history and current pattern of abuse;
    5. The scope, duration, and significance of abuse;
    6. The risk to the public health;
    7. The potential of the substance to produce psychic or physiological dependence liability; and
    8. Whether the substance is an immediate precursor of a substance already controlled under this chapter.
  2. After considering the factors enumerated in subsection (1) of this section, the Cabinet for Health and Family Services may adopt a regulation controlling the substance if it finds the substance has a potential for abuse.
    1. If any substance is designated or rescheduled as a controlled substance under the federal Controlled Substances Act, the drug shall be considered to be controlled at the state level in the same numerical schedule corresponding to the federal schedule. (3) (a) If any substance is designated or rescheduled as a controlled substance under the federal Controlled Substances Act, the drug shall be considered to be controlled at the state level in the same numerical schedule corresponding to the federal schedule.
    2. Notwithstanding paragraph (a) of this subsection, the Cabinet for Health and Family Services may file an amendment to the administrative regulations promulgated pursuant to this section to control the substance in a more restrictive numerical schedule than the federal schedule as permitted by subsection (1) of this section.
  3. The Cabinet for Health and Family Services shall exclude any nonnarcotic substance from a schedule if the substance may be lawfully sold over the counter without prescription under the provisions of the Federal Food, Drug and Cosmetic Act, or the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, or the Kentucky Revised Statutes (for the purposes of this section the Kentucky Revised Statutes shall not include any regulations issued thereunder).
  4. The Office of Drug Control Policy may request that the Cabinet for Health and Family Services schedule any substance that would meet the criteria to be scheduled pursuant to this chapter. The cabinet shall consider the request utilizing the criteria established by this section and shall issue a written response within sixty (60) days of the scheduling request delineating the cabinet’s decision to schedule or not schedule the substance and the basis for the cabinet’s decision. The cabinet’s response shall be provided to the Legislative Research Commission and shall be a public record.

HISTORY: Enact. Acts 1972, ch. 226, § 3; 1974, ch. 74, Art. VI, § 107(3); 1998, ch. 426, § 471, effective July 15, 1998; 2005, ch. 99, § 528, effective June 20, 2005; 2012, ch. 108, § 4, effective April 11, 2012; 2013, ch. 26, § 6, effective March 19, 2013; 2016 ch. 135, § 2, effective April 27, 2016; 2017 ch. 61, § 2, effective June 29, 2017; 2017 ch. 168, § 2, effective June 29, 2017.

Compiler’s Notes.

The Federal Food, Drug and Cosmetic Act and the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, referred to in subsection (4) of this section, are compiled as 21 USCS § 301 et seq. and 21 USCS § 801 et seq., respectively.

Legislative Research Commission Notes.

(6/29/2017). This statute was amended by 2017 Ky. Acts chs. 61 and 168, which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1.Constitutionality.

The individual statutes listing the criteria for a particular classification, read in combination with this section, set out specific mandatory standards to be used by the Cabinet for Human Resources in classifying substances. The legislature has delegated only the administration of the law, and therefore this section and the statutes that follow are constitutional. Commonwealth v. Hollingsworth, 685 S.W.2d 546, 1984 Ky. LEXIS 278 ( Ky. 1984 ).

Court of Appeals erred in reversing a judgment and remanding for a hearing on a statute’s constitutionality because the trial court had subject matter jurisdiction to hear claims regarding the scheduling of the controlled substance at issue, could take judicial notice of the federal regulation used, and make a determination whether the findings comported with the requirements of Kentucky law, and, the Attorney General and the Cabinet for Health and Family Services were not necessary parties. Commonwealth v. Hamilton, 411 S.W.3d 741, 2013 Ky. LEXIS 462 ( Ky. 2013 ).

2.Classification.

A determination by the Cabinet for Human Resources that a substance should be a controlled substance, based only upon its potential for abuse, was appropriate even where the other statutory factors were not considered. Commonwealth v. Hollingsworth, 685 S.W.2d 546, 1984 Ky. LEXIS 278 ( Ky. 1984 ).

218A.030. Controlled substances — How scheduled. [Repealed]

History. Enact. Acts 1972, ch. 226, § 4; repealed by 2017 ch. 61, § 7, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 226, § 4) was repealed by Acts 2017, ch. 61, § 7, effective June 29, 2017.

218A.040. Criteria for classification under Schedule I.

The Cabinet for Health and Family Services shall place a substance in Schedule I if it finds that the substance:

  1. Has high potential for abuse; and
  2. Has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision.

History. Enact. Acts 1972, ch. 226, § 5; 1974, ch. 74, Art. VI, § 107(3); 1998, ch. 426, § 472, effective July 15, 1998; 2005, ch. 99, § 529, effective June 20, 2005.

218A.050. Schedule I controlled substances. [Repealed]

History. Enact. Acts 1972, ch. 226, § 6; 1974, ch. 74, Art. VI, § 107(3); 1980, ch. 161, § 1, effective July 15, 1980; 1992, ch. 441, § 2, effective July 14, 1992; 1994, ch. 412, § 3, effective July 15, 1994; 1998, ch. 426, § 473, effective July 15, 1998; 2000, ch. 401, § 1, effective July 14, 2000; 2005, ch. 99, § 530, effective June 20, 2005; 2010, ch. 149, § 5, effective April 13, 2010; 2010, ch. 160, § 5, effective April 26, 2010; 2011, ch. 45, § 4, effective March 16, 2011; 2012, ch. 108, § 5, effective April 11, 2012; 2013, ch. 26, § 2, effective March 19, 2013; 2015 ch. 66, § 10, effective March 25, 2015; 2016 ch. 135, § 3, effective April 27, 2016; repealed by 2017 ch. 61, § 7, effective June 29, 2017.

Compiler's Notes.

This section (Enact. Acts 1972, ch. 226, § 6) was repealed by Acts 2017, ch. 61, § 7, effective June 29, 2017.

218A.060. Criteria for classification under Schedule II.

The Cabinet for Health and Family Services shall place a substance in Schedule II if it finds that:

  1. The substance has high potential for abuse;
  2. The substance has currently accepted medical use in treatment in the United States, or currently accepted medical use with severe restrictions; and
  3. The abuse of the substance may lead to severe psychic or physical dependence.

History. Enact. Acts 1972, ch. 226, § 7; 1974, ch. 74, Art. VI, § 107(3); 1998, ch. 426, § 474, effective July 15, 1998; 2005, ch. 99, § 531, effective June 20, 2005.

NOTES TO DECISIONS

1.Cocaine.

In a case involving the termination of a state employee, there was no error in finding that the Kentucky Corrections Policies and Procedures was violated when the employee tested positive for cocaine during working hours because, given the treatment of cocaine by the Kentucky General Assembly, it was a substance which could, at the very least, have affected one's senses, responses, or motor function. Parrish v. Commonwealth, 464 S.W.3d 505, 2015 Ky. App. LEXIS 91 (Ky. Ct. App. 2015).

218A.070. Schedule II controlled substances. [Repealed]

History. Enact. Acts 1972, ch. 226, § 8; 1974, ch. 74, Art. VI, § 107(3); 1978, ch. 286, § 1, effective June 17, 1978; 1992, ch. 441, § 3, effective July 14, 1992; 1994, ch. 412, § 4, effective July 15, 1994; 1998, ch. 426, § 475, effective July 15, 1998; 1998, ch. 606, § 67, effective July 15, 1998; 2005, ch. 99, § 532, effective June 20, 2005; 2016 ch. 135, § 4, effective April 27, 2016; repealed by 2017 ch. 61, § 7, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 226, § 8) was repealed by Acts 2017, ch. 61, § 7, effective June 29, 2017.

218A.080. Criteria for classification under Schedule III.

The Cabinet for Health and Family Services shall place a substance in Schedule III if it finds that:

  1. The substance has a potential for abuse less than the substances listed in Schedules I and II;
  2. The substance has currently accepted medical use in treatment in the United States; and
  3. Abuse of the substance may lead to moderate or low physical dependence or high psychological dependence.

History. Enact. Acts 1972, ch. 226, § 9; 1974, ch. 74, Art. VI, § 107(3); 1998, ch. 426, § 476, effective July 15, 1998; 2005, ch. 99, § 533, effective June 20, 2005.

NOTES TO DECISIONS

1.Classification.

A determination by the Cabinet for Human Resources that a substance should be a controlled substance, based only upon its potential for abuse, was appropriate even where the other statutory factors were not considered. Commonwealth v. Hollingsworth, 685 S.W.2d 546, 1984 Ky. LEXIS 278 ( Ky. 1984 ).

Court of Appeals erred in reversing a judgment and remanding for a hearing on a statute’s constitutionality because the trial court had subject matter jurisdiction to hear claims regarding the scheduling of the controlled substance at issue, could take judicial notice of the federal regulation used, and make a determination whether the findings comported with the requirements of Kentucky law, and, the Attorney General and the Cabinet for Health and Family Services were not necessary parties. Commonwealth v. Hamilton, 411 S.W.3d 741, 2013 Ky. LEXIS 462 ( Ky. 2013 ).

2.Double Jeopardy.

Where the defendant was charged with the burglary of a drug store where a large quantity of various drugs and cartons of cigarettes were stolen, the conviction of the defendant under two (2) counts of possession of a controlled substance did not constitute double jeopardy because possession with intent to sell the stolen drugs constituted a violation of two (2) separate and distinct statutory provisions, this section and KRS 218A.100 . Kroth v. Commonwealth, 737 S.W.2d 680, 1987 Ky. LEXIS 236 ( Ky. 1987 ).

218A.090. Schedule III controlled substances. [Repealed]

History. Enact. Acts 1972, ch. 226, § 10; 1974, ch. 74, Art. VI, § 107(3); 1980, ch. 161, § 2, effective July 15, 1980; 1990, ch. 160, § 1, effective July 13, 1990; 1992, ch. 441, § 4, effective July 14, 1992; 1998, ch. 426, § 477, effective July 15, 1998; 2005, ch. 99, § 534, effective June 20, 2005; 2016 ch. 135, § 5, effective April 27, 2016; repealed by 2017 ch. 61, § 7, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 226, § 10) was repealed by Acts 2017, ch. 61, § 7, effective June 29, 2017.

218A.100. Criteria for classification under Schedule IV.

The Cabinet for Health and Family Services shall place a substance in Schedule IV if it finds that:

  1. The substance has a low potential for abuse relative to substances in Schedule III;
  2. The substance has currently accepted medical use in treatment in the United States; and
  3. Abuse of the substance may lead to limited physical dependence or psychological dependence relative to the substances in Schedule III.

History. Enact. Acts 1972, ch. 226, § 11; 1974, ch. 74, Art. VI, § 107(3); 1998, ch. 426, § 478, effective July 15, 1998; 2005, ch. 99, § 535, effective June 20, 2005.

NOTES TO DECISIONS

1.Double Jeopardy.

Where the defendant was charged with the burglary of a drug store where a large quantity of various drugs and cartons of cigarettes were stolen, the conviction of the defendant under two (2) counts of possession of a controlled substance did not constitute double jeopardy because possession with intent to sell the stolen drugs constituted a violation of two (2) separate and distinct statutory provisions, KRS 218A.080 and this section. Kroth v. Commonwealth, 737 S.W.2d 680, 1987 Ky. LEXIS 236 ( Ky. 1987 ).

218A.110. Schedule IV controlled substances. [Repealed]

History. Enact. Acts 1972, ch. 226, § 12; 1974, ch. 74, Art. VI, § 107(3); 1998, ch. 426, § 479, effective July 15, 1998; 2005, ch. 99, § 536, effective June 20, 2005; repealed by 2017 ch. 61, § 7, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 226, § 12) was repealed by Acts 2017, ch. 61, § 7, effective June 29, 2017.

218A.120. Criteria for classification under Schedule V.

The Cabinet for Health and Family Services shall place a substance in Schedule V if it finds that:

  1. The substance has low potential for abuse relative to the controlled substances listed in Schedule IV;
  2. The substance has currently accepted medical use in treatment in the United States; and
  3. The substance has limited physical dependence or psychological dependence liability relative to the controlled substances listed in Schedule IV.

History. Enact. Acts 1972, ch. 226, § 13; 1974, ch. 74, Art. VI, § 107(3); 1998, ch. 426, § 480, effective July 15, 1998; 2005, ch. 99, § 537, effective June 20, 2005.

218A.130. Schedule V controlled substances. [Repealed]

History. Enact. Acts 1972, ch. 226, § 14; 1974, ch. 74, Art. VI, § 107(3); 1974, ch. 308, § 40; 1998, ch. 426, § 481, effective July 15, 1998; 2005, ch. 99, § 538, effective June 20, 2005; repealed by 2017 ch. 61, § 7, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 226, § 14) was repealed by Acts 2017, ch. 61, § 7, effective June 29, 2017.

218A.133. Exemption from prosecution for possession of controlled substance or drug paraphernalia if seeking assistance with drug overdose.

  1. As used in this section:
    1. “Drug overdose” means an acute condition of physical illness, coma, mania, hysteria, seizure, cardiac arrest, cessation of breathing, or death which reasonably appears to be the result of consumption or use of a controlled substance, or another substance with which a controlled substance was combined, and that a layperson would reasonably believe requires medical assistance; and
    2. “Good faith” does not include seeking medical assistance during the course of the execution of an arrest warrant, or search warrant, or a lawful search.
  2. A person shall not be charged with or prosecuted for a criminal offense prohibiting the possession of a controlled substance or the possession of drug paraphernalia if:
    1. In good faith, medical assistance with a drug overdose is sought from a public safety answering point, emergency medical services, a law enforcement officer, or a health practitioner because the person:
      1. Requests emergency medical assistance for himself or herself or another person;
      2. Acts in concert with another person who requests emergency medical assistance; or
      3. Appears to be in need of emergency medical assistance and is the individual for whom the request was made;
    2. The person remains with, or is, the individual who appears to be experiencing a drug overdose until the requested assistance is provided; and
    3. The evidence for the charge or prosecution is obtained as a result of the drug overdose and the need for medical assistance.
  3. The provisions of subsection (2) of this section shall not extend to the investigation and prosecution of any other crimes committed by a person who otherwise qualifies under this section.
  4. When contact information is available for the person who requested emergency medical assistance, it shall be reported to the local health department. Health department personnel shall make contact with the person who requested emergency medical assistance in order to offer referrals regarding substance abuse treatment, if appropriate.
  5. A law enforcement officer who makes an arrest in contravention of this section shall not be criminally or civilly liable for false arrest or false imprisonment if the arrest was based on probable cause.

HISTORY: 2015 ch. 66, § 11, effective March 25, 2015.

NOTES TO DECISIONS

1.Applicability.

Dismissal of first-degree promoting contraband and first-degree persistent felony offender charges against defendant was in err because defendant's choice to possess a separate quantity of a dangerous contraband while also overdosing on a controlled substance inside a detention facility constituted a crime that could be investigated and prosecuted. Allowing defendant to escape prosecution for possessing the dangerous contraband also did not further the public policy. Commonwealth v. Kenley, 516 S.W.3d 362, 2017 Ky. App. LEXIS 51 (Ky. Ct. App. 2017).

Trial court erred in denying defendant's motion to dismiss an indictment charging him with first-degree possession of a controlled substance and possession of drug paraphernalia because the retroactive application of all amendments or changes to statutory law were not all statutorily precluded, and the General Assembly created an immunity from prosecution that was a new procedural bar to prosecution and one that applied retroactively. Pomeroy v. Commonwealth, 509 S.W.3d 721, 2016 Ky. App. LEXIS 207 (Ky. Ct. App. 2016).

Defendant was not entitled to immunity under this statute as there was no evidence that defendant overdosed or needed medical assistance, and the statute clearly required that defendant establish that the evidence for the charge or prosecution be obtained as a result of the drug overdose and the need for medical assistance, and not a perceived drug overdose, an apparent drug overdose, or a presumed overdose, and not a perceived need for medical assistance, an apparent need for medical assistance, or the presumed need for medical assistance. Commonwealth v. Milner, 2019 Ky. App. LEXIS 182 (Ky. Ct. App. Oct. 18, 2019).

2.Suppression of evidence improper.

Because this statute called for the exemption from prosecution for possession of a controlled substance or drug paraphernalia where applicable, not the suppression of evidence obtained by law enforcement, the trial court’s order suppressing evidence of those crimes had to be vacated. Commonwealth v. Milner, 2019 Ky. App. LEXIS 182 (Ky. Ct. App. Oct. 18, 2019).

3.Interpretation.

Circuit court erred in denying defendant’s motion to dismiss because defendant, not the caller, was “the person” addressed in the statute, and the caller’s geographic location when responders arrived was of no consequence. Logsdon v. Commonwealth, 601 S.W.3d 477, 2020 Ky. App. LEXIS 25 (Ky. Ct. App. 2020).

218A.135. Pretrial release of defendant charged with offense for which conviction may result in presumptive probation.

  1. Any statute to the contrary notwithstanding, a defendant charged with an offense under this chapter for which a conviction may result in presumptive probation shall be placed on pretrial release on his or her own recognizance or on unsecured bond by the court subject to any conditions, other than bail, specified in KRS 431.515 to 431.550 .
  2. The provisions of this section shall not apply to a defendant who is found by the court to present a flight risk or to be a danger to others.
  3. If a court determines that a defendant shall not be released pursuant to subsection (2) of this section, the court shall document the reasons for denying the release in a written order.

History. Enact. Acts 2011, ch. 2, § 19, effective June 8, 2011; 2012, ch. 156, § 6, effective July 12, 2012.

218A.136. Utilization of faith-based residential treatment program — Conditions.

  1. An offender charged with a felony pursuant to this chapter who is not charged with a violent offense, who is eligible for diversion or deferred prosecution of his or her sentence, and whose diversion or deferred prosecution plan involves substance use disorder treatment may be afforded the opportunity to utilize a faith-based residential treatment program.
  2. If an offender and judge support this faith-based residential treatment program, and the cost of the program is less than that of the substance use disorder treatment that would otherwise be provided, then the court may approve the faith-based residential treatment program for a specified period of time. An offender shall sign a commitment to comply by the terms of the faith-based residential treatment program.
  3. If an offender violates the terms of the commitment he or she has signed with the faith-based residential treatment program, then the offender shall be returned to the court for additional proceedings.

HISTORY: 2015 ch. 66, § 17, effective March 25, 2015.

218A.140. Prohibited acts relating to controlled substances — Penalties.

    1. No person shall obtain or attempt to obtain a prescription for a controlled substance by knowingly misrepresenting to, or knowingly withholding information from, a practitioner. (1) (a) No person shall obtain or attempt to obtain a prescription for a controlled substance by knowingly misrepresenting to, or knowingly withholding information from, a practitioner.
    2. No person shall procure or attempt to procure the administration of a controlled substance by knowingly misrepresenting to, or withholding information from, a practitioner.
    3. No person shall obtain or attempt to obtain a controlled substance or procure or attempt to procure the administration of a controlled substance by the use of a false name or the giving of a false address.
    4. No person shall knowingly make a false statement regarding any prescription, order, report, or record required by this chapter.
    5. No person shall, for the purpose of obtaining a controlled substance, falsely assume the title of or represent himself or herself to be a manufacturer, wholesaler, distributor, repacker, pharmacist, practitioner, or other authorized person.
    6. In order to obtain a controlled substance, no person shall present a prescription for a controlled substance that was obtained in violation of this chapter.
    7. No person shall affix any false or forged label to a package or receptacle containing any controlled substance.
  1. No person shall possess, manufacture, sell, dispense, prescribe, distribute, or administer any counterfeit substance.
  2. No person shall knowingly obtain or attempt to obtain a prescription for a controlled substance without having formed a valid practitioner-patient relationship with the practitioner or his or her designee from whom the person seeks to obtain the prescription.
  3. No person shall knowingly assist a person in obtaining or attempting to obtain a prescription in violation of this chapter.
  4. Any person who violates any subsection of this section shall be guilty of a Class D felony.

History. Enact. Acts 1990, ch. 160, § 2, effective July 13, 1990; 1992, ch. 441, § 5, effective July 14, 1992; 1998, ch. 301, § 22, effective July 15, 1998; 2007, ch. 124, § 2, effective June 26, 2007; 2011, ch. 2, § 6, effective June 8, 2011.

NOTES TO DECISIONS

1.Search.

Where defendant had admitted ownership of illegal drugs found in a friend’s purse, and where defendant had admitted at a suppression hearing that he had no subjective expectation that the purse would remain free from governmental intrusion, defendant did not sustain his burden of proving that he had a legitimate expectation of privacy in the purse so as to allow defendant to challenge the validity of the search of the purse at his trial for possessing controlled substances with intent to sell. Rawlings v. Kentucky, 448 U.S. 98, 100 S. Ct. 2556, 65 L. Ed. 2d 633, 1980 U.S. LEXIS 142 (U.S. 1980).

Where defendant admitted ownership of illegal drugs found in a friend’s purse, a search of defendant’s person that uncovered a knife and $4,500 in cash was legal as incident to defendant’s formal arrest, despite the fact that the search preceded the formal arrest. Rawlings v. Kentucky, 448 U.S. 98, 100 S. Ct. 2556, 65 L. Ed. 2d 633, 1980 U.S. LEXIS 142 (U.S. 1980).

Defendant charged with possession of controlled substances, an integral part of trafficking in controlled substances, does not have automatic standing to challenge an allegedly illegal search and seizure regardless of whether he has a reasonable expectation of privacy in the searched premises or not, and despite the fact that he claimed ownership of the narcotics during the search. Sussman v. Commonwealth, 610 S.W.2d 608, 1980 Ky. LEXIS 286 ( Ky. 1980 ).

2.Evidence.

There was not sufficient evidence to sustain a conviction where the defendant had merely been several times a passenger in the car where the drugs were found, had occasionally driven the car and was a friend of the owner of the car, and there was no indication that the defendant knew the drugs were in the car, had used such drugs or had sold such drugs on any occasion (decided under prior law). Carr v. Commonwealth, 481 S.W.2d 91, 1972 Ky. LEXIS 231 ( Ky. 1972 ).

There was sufficient evidence to sustain a conviction where one police officer testified that he was sold some marijuana by the defendant, had checked the license number of the defendant’s car and found that the car was registered to the defendant’s father, and his testimony was corroborated in some details by another policeman who also identified the defendant and saw the first officer return with the bag of marijuana (decided under prior law). Morrison v. Commonwealth, 483 S.W.2d 164, 1972 Ky. LEXIS 184 ( Ky. 1972 ).

Where the trial court allowed the witness to testify that the defendant had sold heroin to other people six (6) or eight (8) months prior to the alleged crime, such evidence was competent for the purpose of showing intent, motive, design, knowledge or lack of innocent purpose and to show a pattern of conduct (decided under prior law). Edwards v. Commonwealth, 489 S.W.2d 23, 1972 Ky. LEXIS 23 ( Ky. 1972 ).

Where narcotics agent testified that the defendant shot heroin into his own arm in the presence of the agent, admission of such evidence was not so prejudicial as to deny the defendant a fair trial. Wiley v. Commonwealth, 575 S.W.2d 166, 1978 Ky. App. LEXIS 646 (Ky. Ct. App. 1978).

A description by narcotics agent of his general duties and the fact that he testified that he often received information from informants and then sought to investigate to determine the correctness of this information was admissible. Wiley v. Commonwealth, 575 S.W.2d 166, 1978 Ky. App. LEXIS 646 (Ky. Ct. App. 1978).

Defendant’s admission to ownership of illegal drugs was admissible at the trial for possession of a controlled substance with intent to sell, even though defendant had been illegally detained by the police at the time he made the statement, where defendant had been detained in the “congenial” atmosphere of a friend’s home, where defendant had received a Miranda warning before making the incriminating statement, and where the admission was defendant’s voluntary and spontaneous reaction to a police officer’s discovery of the drugs. Rawlings v. Kentucky, 448 U.S. 98, 100 S. Ct. 2556, 65 L. Ed. 2d 633, 1980 U.S. LEXIS 142 (U.S. 1980).

Where the evidence disclosed: (a) defendant had possession of a large amount of drugs, an amount inconsistent with personal need; (b) a codefendant tried to sell some of the drugs to a third party immediately prior to the arrest; (c) defendant’s suspicious actions when stopped by the police, along with the presence of prescription bottles with labels torn off, and (d) that defendant’s own physician did not know that the defendant was obtaining drugs from other doctors, the jury’s verdict convicting defendant of trafficking in controlled substances was based on substantial evidence. Whisman v. Commonwealth, 667 S.W.2d 394, 1984 Ky. App. LEXIS 454 (Ky. Ct. App. 1984).

Where the defendant’s counsel did not object to the introduction of evidence of the earlier conviction for trafficking in marijuana, and no limiting jury instruction was given, and none was requested, that the jury should not be allowed to use the prior conviction to support an inference that the defendant was guilty of trafficking again, it was rational for the jury to consider proof of the prior trafficking conviction as evidence of intent to sell marijuana. Ferguson v. Knight, 792 F.2d 581, U.S. App. LEXIS 26070 (6th Cir. Ky.), vacated, 797 F.2d 289, 1986 U.S. App. LEXIS 29846 (6th Cir. Ky. 1986 ).

The dismissal of an indictment charging the defendant with trafficking in cocaine, was erroneous, where the trial judge maintained that the envelope containing the evidence had not been opened, the Commonwealth contended that it had been slit open and resealed with red tape, and a simple investigation consisting of the removal of the tape by the judge would have disclosed whether the evidence had, in fact, been opened as contended by the commonwealth. Commonwealth v. Burnley, 710 S.W.2d 221, 1986 Ky. LEXIS 256 ( Ky. 1986 ).

The trial judge did not commit reversible error in allowing the officer to testify that, in his opinion, the defendant had the pills in his possession for sale and not for personal use, where he referred to the large quantity of drugs found in the home of the defendant and stated that such a large quantity indicated that they were for sale, not personal use, based on his ten years of experience as a narcotics officer. Kroth v. Commonwealth, 737 S.W.2d 680, 1987 Ky. LEXIS 236 ( Ky. 1987 ).

3.Large Amounts of Cash.

Possession of large amounts of unexplained cash tends to prove narcotics activity. While it is clear that possession of a large amount of unexplained cash by itself is not an indicia of criminality, when taken as part of all the evidence, its introduction into evidence is proper. Clay v. Commonwealth, 867 S.W.2d 200, 1993 Ky. App. LEXIS 109 (Ky. Ct. App. 1993).

Where purse which contained large amounts of cash also contained several credit cards belonging to defendant and where defendant argued that the introduction into evidence of the credit cards was improper because it created an inference that she would not have been able to obtain the cards were she not a drug dealer, their introduction was not inflammatory or otherwise improper as the Commonwealth did not use the credit cards to directly attach culpability to the defendant but to support the claim that defendant owned the purse which contained the cash. Clay v. Commonwealth, 867 S.W.2d 200, 1993 Ky. App. LEXIS 109 (Ky. Ct. App. 1993).

4.Firearms Possession.

While the possession of properly registered firearms, like the possession of cash, is not by itself an indicia of criminality, it is recognized that weapons are “tools of the trade” in drug trafficking and may be admissible when taken as part of the evidence as a whole. Clay v. Commonwealth, 867 S.W.2d 200, 1993 Ky. App. LEXIS 109 (Ky. Ct. App. 1993).

5.Videotape.

Where videotape showed the cocaine and marijuana, the cash, the scales and baggies, and their respective locations in defendant’s home and where each of these items was addressed in some detail by way of the testimony of police detectives, the videotape was merely demonstrative evidence supportive of that testimony, tantamount to directly exhibiting the contraband before the jury and was properly admitted as evidence. Clay v. Commonwealth, 867 S.W.2d 200, 1993 Ky. App. LEXIS 109 (Ky. Ct. App. 1993).

6.Substance Identification.

In a prosecution for transfer of controlled substance known as methylenedioxy amphetamine (MDA), the trial court correctly submitted the case to the jury upon the substance identification by nonexpert witness, who had used drugs of all description extensively for approximately four years and had seen and used the drug MDA, and thus was competent to testify as to what she observed at the defendant’s house. Miller v. Commonwealth, 512 S.W.2d 941, 1974 Ky. LEXIS 417 ( Ky. 1974 ), cert. denied, 420 U.S. 935, 95 S. Ct. 1142, 43 L. Ed. 2d 411, 1975 U.S. LEXIS 668 (U.S. 1975).

7.Indictment.

Where the indictment, which contained on its face the proper statutory section number, charged the defendant with possession of marijuana for the purpose of sale but the instructions authorized conviction for possessing marijuana for the purpose of sale or disposal and the verdict so convicted the defendant, the defendant could not have been misled to his detriment and there was no reversible error involved in the failure of the instructions to conform exactly to the indictment (decided under prior law). Caslin v. Commonwealth, 491 S.W.2d 832, 1973 Ky. LEXIS 606 ( Ky. 1973 ).

8.Instructions.

Where the defendant was convicted on a charge that he illegally sold, dispensed or administered a narcotic drug and where there was no evidence that the material claimed to have been sold was a barbiturate, the defendant was not entitled to an instruction covering a lesser offense (decided under prior law). Edwards v. Commonwealth, 489 S.W.2d 23, 1972 Ky. LEXIS 23 ( Ky. 1972 ).

Where there was a large quantity of drugs found upon defendant’s premises, an unusual number of visitors were seen at defendant’s quarters at night, the defendant, after the arrival of visitors, would frequently go out to his garage and get something out of a box, a box containing drugs was found in his garage, five teenagers came to defendant’s apartment during the raid, and there was no evidence to indicate that the drugs were for personal use, no instruction as to the offense of unlawful possession of dangerous drugs for his own use was necessary or proper (decided under prior law). Buchenburger v. Commonwealth, 482 S.W.2d 747, 1972 Ky. LEXIS 198 ( Ky. 1972 ), overruled, Beemer v. Commonwealth, 665 S.W.2d 912, 1984 Ky. LEXIS 215 ( Ky. 1984 ).

Instructions which did not use the word “transfer” but substituted the word “sold” were proper. Wiley v. Commonwealth, 575 S.W.2d 166, 1978 Ky. App. LEXIS 646 (Ky. Ct. App. 1978).

The trial court did not err by instructing the jury on the offense of trafficking where the Commonwealth based its case against defendant upon circumstantial evidence including the seizure from defendant of 4.7 grams of cocaine, apparatus used to sift cocaine and a bag of manitol, together with detective’s testimony that cocaine is normally sold by the gram, since such evidence sufficiently raised a jury question of whether defendant possessed the cocaine with the intent to sell. Faught v. Commonwealth, 656 S.W.2d 740, 1983 Ky. LEXIS 266 ( Ky. 1983 ).

9.Entrapment.

Where there were no elements of encouragement, inducement or persuasion to commit a criminal act which the person would not have otherwise done, the defense of entrapment failed where defendant was merely given an opportunity to sell his “illegal goods” in wholesale lots to a man who did not identify his status as a police officer (decided under prior law). Dumon v. Commonwealth, 488 S.W.2d 343, 1972 Ky. LEXIS 40 ( Ky. 1972 ), cert. denied, 412 U.S. 928, 93 S. Ct. 2752, 37 L. Ed. 2d 156, 1973 U.S. LEXIS 2199 (U.S. 1973).

The testimony of the defendant alleging attempts by the police officer to purchase LSD and marijuana from him coupled with the fact that the police officer did not reveal his identity to the defendant were insufficient to submit the issue of entrapment to the jury (decided under prior law). Barclay v. Commonwealth, 499 S.W.2d 283, 1973 Ky. LEXIS 274 ( Ky. 1973 ).

The testimony of defendant that he had never transferred drugs before; that he only knew where to locate the cocaine because of his own prior usage; that he received no benefit from his participating in the transfer other than satisfying the confidential informant for whom he had “feelings” supported his defense that he was induced or encouraged to engage in the transfer of cocaine by a person acting in cooperation with a public servant seeking to obtain evidence against him for the purpose of criminal prosecution; and at the time of the inducement or encouragement, he was not otherwise disposed to engage in such conduct. Therefore, the trial court erred in refusing to give the entrapment instruction requested by defendant because as a matter of law the evidence presented supported the giving of the instruction. Farris v. Commonwealth, 836 S.W.2d 451, 1992 Ky. App. LEXIS 174 (Ky. Ct. App. 1992), overruled, Houston v. Commonwealth, 975 S.W.2d 925, 1998 Ky. LEXIS 1 23 ( Ky. 1998 ), overruled in part, Commonwealth v. Day, 983 S.W.2d 505, 1999 Ky. LEXIS 1 ( Ky. 1999 ).

10.Possession.

The fact that defendants went on the porch of an abandoned house in which officers had found marijuana apparently to enter it and later came from the direction of the house in which the marijuana had been moved was sufficient to show that the defendants had dominion and control of the marijuana such as to constitute possession. Rupard v. Commonwealth, 475 S.W.2d 473, 1971 Ky. LEXIS 68 ( Ky. 1971 ).

Since the prosecution for the possession of cocaine and the sale of cocaine required proof of different facts, the constitutional inhibition against the double jeopardy was not violated (decided under prior law). Brock v. Commonwealth, 479 S.W.2d 644, 1972 Ky. LEXIS 318 ( Ky. 1972 ).

The defendant’s conviction for possession of cocaine was reversed where the trial court’s instructions did not use the definition of possession set forth in KRS 500.080(14) (decided under prior law). Powell v. Commonwealth, 843 S.W.2d 908, 1992 Ky. App. LEXIS 239 (Ky. Ct. App. 1992), overruled, Houston v. Commonwealth, 975 S.W.2d 925, 1998 Ky. LEXIS 123 ( Ky. 1998 ).

Possession sufficient to convict under this section need not be actual; a defendant may be shown to have had constructive possession by establishing that the contraband involved was subject to his dominion or control. Hargrave v. Commonwealth, 724 S.W.2d 202, 1986 Ky. LEXIS 317 ( Ky. 1986 ), cert. denied, 484 U.S. 821, 108 S. Ct. 81, 98 L. Ed. 2d 43, 1987 U.S. LEXIS 3474 (U.S. 1987).

The defendant was in constructive possession of the marijuana found in the trunk of the car where at the time of his arrest, he had in his right hand the ignition key to the automobile, even though this key would not open the doors or the trunk of the car; although no evidence was introduced concerning whether the doors of the car were locked or whether the interior of the car had a trunk-release lever, the testimony indicated that it was the car owner’s intention to transfer control of the auto to the defendant. Leavell v. Commonwealth, 737 S.W.2d 695, 1987 Ky. LEXIS 252 ( Ky. 1987 ).

The definition of possession set forth in KRS 500.080(14) is the proper definition to be contained in the jury instructions for cases arising under KRS Chapter 218A. Powell v. Commonwealth, 843 S.W.2d 908, 1992 Ky. App. LEXIS 239 (Ky. Ct. App. 1992), overruled, Houston v. Commonwealth, 975 S.W.2d 925, 1998 Ky. LEXIS 123 ( Ky. 1998 ).

Although no cocaine was found on defendant’s person, where, on the theory of constructive possession, the Commonwealth showed that defendant was in possession of the cocaine at the time of the search, trial court did not err in denying defendant’s motion for directed verdict. Clay v. Commonwealth, 867 S.W.2d 200, 1993 Ky. App. LEXIS 109 (Ky. Ct. App. 1993).

11.Obtaining Prescription by Fraud.

While subdivision (4)(a) of this section does not include a mental state as an element of the offense of attempting to obtain a narcotic by use of a forged prescription a reading of the statute obviously indicated that knowledge is necessary to sustain a conviction under this section; however, when the trial court included the phrase “could have known” in the instructions to the jury, the instructions became fatally defective. Morrison v. Commonwealth, 607 S.W.2d 114, 1980 Ky. LEXIS 259 ( Ky. 1980 ).

In a prosecution for obtaining a prescription by fraud, the Commonwealth could introduce testimony relating to visits with other doctors from whom the defendant received additional prescriptions, since the evidence was properly admissible to establish intent or a common scheme. Wonn v. Commonwealth, 606 S.W.2d 169, 1980 Ky. App. LEXIS 359 (Ky. Ct. App. 1980).

12.Lesser Included Offenses.

Possession of controlled substances is not merged with or included in a robbery offense, even where the defendant came into possession of the substances during the robbery, since subsection (2) of this section makes the possession of a controlled substance illegal regardless of the manner in which the defendant came into that possession. Hayes v. Commonwealth, 625 S.W.2d 575, 1981 Ky. LEXIS 303 ( Ky. 1981 ).

It is a violation of Const., § 13 and KRS 505.020(2), as well as the prohibition against double jeopardy, for a defendant to be charged with possession and sale of the same marijuana in the same transaction. Mangrum v. Commonwealth, 674 S.W.2d 957, 1984 Ky. LEXIS 244 ( Ky. 1984 ).

The trial court erred when it convicted the defendant of being both an accomplice to the possession with intent to sell marijuana and the sale of marijuana, when the charges arose from the same incident. Mangrum v. Commonwealth, 674 S.W.2d 957, 1984 Ky. LEXIS 244 ( Ky. 1984 ).

13.Destruction of Sample.

The unnecessary (though unintentional) destruction of total drug sample, after defendant stands charged, renders the test results inadmissible, unless defendant is provided a reasonable opportunity to participate in the testing, or is provided with the notes and other information incidental to the testing sufficient to enable him to obtain his own expert evaluation. Green v. Commonwealth, 684 S.W.2d 13, 1984 Ky. App. LEXIS 558 (Ky. Ct. App. 1984).

14.Single Course of Conduct.

Where defendant was convicted of trafficking in cocaine and of transferring cocaine/crack, the fact that the events occurred within 15 minutes of each other and during a continuous meeting between the defendant and an undercover officer does not negate the fact that two (2) separate offenses, their elements established by separate facts, were committed; it was not the meeting that was criminal, but rather certain transactions which occurred in the course of the meeting, and constitutional prohibitions against multiple jeopardy do not extend to prosecution and punishment of independent crimes committed during a single course of conduct. Grenke v. Commonwealth, 796 S.W.2d 858, 1990 Ky. LEXIS 99 ( Ky. 1990 ).

A single sales transaction between the same principles at the same time and place which violates a single statutory provision did not justify conviction or a sentence for separate crimes, even though more than one item of a controlled substance of the same schedule was involved. Commonwealth v. Grubb, 862 S.W.2d 883, 1993 Ky. LEXIS 129 ( Ky. 1993 ), overruled in part, Johnson v. Commonwealth, 553 S.W.3d 213, 2018 Ky. LEXIS 290 ( Ky. 2018 ).

15.Quantity of Drug.

Possession of any amount of cocaine, even a residue in a test tube and pipe, will support a charge of cocaine possession. Commonwealth v. Shivley, 814 S.W.2d 572, 1991 Ky. LEXIS 106 ( Ky. 1991 ).

16.Persistent Offenders.

Where defendant convicted of cocaine trafficking testified during his jury trial that he had been convicted of at least one previous felony and rather than go through the separate proceeding on the persistent felony offender (PFO) charge, he reached an agreement with the prosection whereby he would plead guilty to the PFO charge in exchange for the minimum sentence allowed by statute and thereupon moved for permission to enter a plea of guilty to PFO, first degree and without the formally fixing a sentence on the underlying cocaine trafficking conviction, the court sustained the motion, while as a pro forma matter it might have been a better practice for the court to expressly assess a sentence on the underlying cocaine trafficking conviction, defendant suffered no harm as a result of the acceptance of the plea agreement, in fact it worked to his benefit by eliminating the possibility of a significantly greater sentence and the facts indicated that his action was knowing and voluntary on his part. Hulett v. Commonwealth, 834 S.W.2d 688, 1992 Ky. App. LEXIS 138 (Ky. Ct. App. 1992).

17.Reasonable Suspicion.

Defendant’s turning away from a sobriety checkpoint, coupled with the deputy sheriff’s experience in similar instances, the time of day, and the nature of the roadway onto which the defendant turned constituted specific, reasonable, and articulable facts which allowed the police officer to draw an inference sufficient to form a reasonable suspicion that the defendant might have been engaged in criminal activity. Steinbeck v. Commonwealth, 862 S.W.2d 912, 1993 Ky. App. LEXIS 128 (Ky. Ct. App. 1993).

Cited:

Gaston v. Commonwealth, 533 S.W.2d 533, 1976 Ky. LEXIS 114 ( Ky. 1976 ); Spears v. Commonwealth, 558 S.W.2d 641, 1977 Ky. App. LEXIS 856 (Ky. Ct. App. 1977); Marshall v. Commonwealth, 625 S.W.2d 581, 1981 Ky. LEXIS 306 ( Ky. 1981 ); Cooper v. Commonwealth, 648 S.W.2d 530, 1982 Ky. App. LEXIS 287 (Ky. Ct. App. 1982); McRay v. Commonwealth, 675 S.W.2d 397, 1984 Ky. App. LEXIS 458 (Ky. Ct. App. 1984); Penn v. Commonwealth, 687 S.W.2d 135, 1985 Ky. LEXIS 213 ( Ky. 1985 ); Jeffers v. Heavrin, 701 F. Supp. 1316, 1988 U.S. Dist. LEXIS 14238 (W.D. Ky. 1988 ); Jackson v. Commonwealth, 806 S.W.2d 643, 1991 Ky. LEXIS 34 ( Ky. 1991 ); Perkins v. Commonwealth, 834 S.W.2d 182, 1992 Ky. App. LEXIS 150 (Ky. Ct. App. 1992); Hulett v. Commonwealth, 834 S.W.2d 688, 1992 Ky. App. LEXIS 138 (Ky. Ct. App. 1992); Thorpe v. Commonwealth, 295 S.W.3d 458, 2009 Ky. App. LEXIS 188 (Ky. Ct. App. 2009).

Opinions of Attorney General.

The adoption of a proposed loitering ordinance which would prohibit loitering for the purpose of engaging in “an unlawful drug transaction” is prohibited by KRS 67A.070 , because such an enactment would be in conflict with existing state legislation by attempting to redefine statutory crimes. OAG 91-27 .

Since ordinances banning pain clinics are not the subject of an express power granted to local governmental units by the General Assembly, and infringe upon the legislative policy embodied in statutes regulating the practice of medicine and distribution of controlled substances, such ordinances are beyond the legitimate authority of a unit of local government. OAG 11-003 , 2011 Ky. AG LEXIS 54.

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Fortune, Criminal Procedure, 73 Ky. L.J. 347 (1984-85).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part. 4 Miscellaneous KRS 218A Offenses, §§ 9.25, 9.26, 9.27, 9.29.

218A.1401. Selling controlled substances other than salvia to minor — Penalties.

  1. A person is guilty of selling controlled substances to a minor when he or she, being eighteen (18) years of age or older, knowingly and unlawfully sells or transfers any quantity of a controlled substance other than salvia to any person under eighteen (18) years of age.
  2. Selling controlled substances to a minor is a Class C felony for a first offense, and a Class B felony for each subsequent offense, unless a more severe penalty for trafficking in controlled substances is applicable, in which case the higher penalty shall apply.

History. Enact. Acts 1992, ch. 441, § 21, effective July 14, 1992; 2010, ch. 149, § 7, effective April 13, 2010; 2010, ch. 160, § 7, effective April 26, 2010; 2011, ch. 45, § 6, effective March 16, 2011; 2012, ch. 108, § 6, effective April 11, 2012; 2016 ch. 135, § 10, effective April 27, 2016.

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part. 4 Miscellaneous KRS 218A Offenses, § 9.24A.

218A.1402. Criminal conspiracy to commit offense in KRS Chapter 218A — Penalties.

Any person who commits a criminal conspiracy as defined in KRS 506.040 to commit any offense in this chapter shall be subject to the same penalties as provided for the underlying offense as specified in this chapter.

History. Enact. Acts 1992, ch. 441, § 22, effective July 14, 1992; 2007, ch. 124, § 3, effective June 26, 2007.

NOTES TO DECISIONS

1.No Conflict with KRS 506.040.

The criminal syndicate statute, KRS 506.120 , is not unconstitutionally vague and sufficiently differs from this section, which prohibits criminal conspiracy to traffic in a controlled substance. This section prohibits a conspiracy as defined in KRS 506.040 . KRS 506.040 is distinguishable from KRS 506.120 , because the former does not require the involvement of five (5) or more persons as does the latter. A conspiracy can result from an agreement between one (1) or more persons. Dishman v. Commonwealth, 906 S.W.2d 335, 1995 Ky. LEXIS 114 ( Ky. 1995 ).

218A.1403. Advertising controlled substance — Penalties.

  1. No person shall advertise through any media other than a professional or trade publication any controlled substance by either its “trade name” or by its generic or formulary name.
  2. Any person who violates subsection (1) of this section shall be guilty of a Class B misdemeanor for the first offense and a Class A misdemeanor for each subsequent offense.

History. Enact. Acts 1992, ch. 441, § 26, effective July 14, 1992.

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part. 4 Miscellaneous KRS 218A Offenses, § 9.32.

218A.1404. Prohibited activities relating to controlled substances — Penalties.

  1. No person shall traffic in any controlled substance except as authorized by law.
  2. No person shall possess any controlled substance except as authorized by law.
  3. No person shall dispense, prescribe, distribute, or administer any controlled substance except as authorized by law.
  4. Unless another specific penalty is provided in this chapter, any person who violates the provisions of subsection (1) or (3) of this section shall be guilty of a Class D felony for the first offense and a Class C felony for subsequent offenses and any person who violates the provisions of subsection (2) of this section shall be guilty of a Class A misdemeanor.

History. Enact. Acts 1992, ch. 441, § 27, effective July 14, 1992; 2011, ch. 2, § 7, effective June 8, 2011.

NOTES TO DECISIONS

1.Prescriptions.

Appellate court erred in reversing defendant’s conviction for illegally prescribing a controlled substance upon finding that the relevant indictment did not charge a crime because defendant, as a licensed as practicing dentist with an appropriate permit, was authorized by law to prescribe controlled substances; defendant was not authorized by law to engage in the conduct that led to the charge, which was writing prescriptions without any legitimate medical purpose for friends in exchange for receiving half of the drugs. Commonwealth v. Sears, 206 S.W.3d 309, 2006 Ky. LEXIS 295 ( Ky. 2006 ).

2.Penalties.

Penalties set forth in KRS 218A.180 could not be used to usurp the penalty provisions of KRS 218A.1404(4) and, thus, defendant was properly sentenced under KRS 218A.1404(4) for illegally prescribing controlled substances in violation KRS 218A.1404(3); KRS 218A.180 was merely a record keeping and prescription format section and its penalty provisions did not apply to defendant’s case. Commonwealth v. Sears, 206 S.W.3d 309, 2006 Ky. LEXIS 295 ( Ky. 2006 ).

Research References and Practice Aids

Kentucky Law Journal.

Article: Drug Law Reform-Retreating from an Incarceration Addiction, 98 Ky. L.J. 201 (2009/2010).

218A.1405. Use and investment of drug-related income — Penalties.

  1. It shall be unlawful for any person who has knowingly received any income derived directly or indirectly from trafficking in a controlled substance to use or invest any part of that income, or any proceeds thereof, to acquire any property, or to establish or operate any commercial enterprise.
    1. As used in this section, “property” includes real and personal property, whether tangible or intangible.
    2. As used in this section, “commercial enterprise” means any proprietorship, partnership, corporation, association or other legal entity, including any individual or group not a legal entity, which is engaged in any business or commercial activity or whose activities affect business or commerce.
  2. Any person who violates this section shall be guilty of a Class D felony and, in addition to other penalties prescribed by law, shall forfeit any property constituting or derived from any income received directly or indirectly from trafficking in a controlled substance.

History. Enact. Acts 1992, ch. 441, § 29, effective July 14, 1992.

Research References and Practice Aids

Northern Kentucky Law Review.

Lotz, A Survey of Criminal Law Statutes Enacted in 1992, 20 N. Ky. L. Rev. 745 (1993).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part. 4 Miscellaneous KRS 218A Offenses, § 9.33.

218A.141. Additional penalties for trafficking in controlled substance other than salvia or marijuana.

Any person convicted of, pleading guilty to, or entering an Alford plea to any offense involving trafficking in a controlled substance, other than trafficking in salvia or marijuana, shall, in addition to any other penalty authorized by law, be sentenced to:

  1. Pay the costs of disposal of the controlled substances;
  2. Pay the costs of disposal of all equipment, chemicals, materials, or other items used in or in furtherance of the trafficking offense;
  3. Pay the costs involved with environmental clean-up and remediation required for the real property and personal property used for or in furtherance of the trafficking offenses; and
  4. Pay the costs of protecting the public from dangers from chemicals, materials, and other items used for or in furtherance of the trafficking offense from the time of the arrest until the time that the clean-up or remediation of the real and personal property is concluded. The Commonwealth shall have a lien on all of the assets of the defendant until the amount specified by the court under this subsection is paid in full. The Commonwealth’s attorney shall file the lien.

History. Enact. Acts 1998, ch. 606, § 61, effective July 15, 1998; 2010, ch. 149, § 8, effective April 13, 2010; 2010, ch. 160, § 8, effective April 26, 2010; 2011, ch. 45, § 7, effective March 16, 2011; 2012, ch. 108, § 7, effective April 11, 2012.

218A.1410. Importing heroin, carfentanil, fentanyl, or fentanyl derivatives.

  1. A person is guilty of importing heroin, carfentanil, fentanyl, or fentanyl derivatives when he or she knowingly and unlawfully transports any quantity of heroin, carfentanil, fentanyl, or fentanyl derivatives into the Commonwealth by any means with the intent to sell or distribute the heroin, carfentanil, fentanyl, or fentanyl derivatives.
  2. The provisions of this section are intended to be a separate offense from others in this chapter, and shall be punished in addition to violations of this chapter occurring during the same course of conduct.
  3. Importing heroin, carfentanil, fentanyl, or fentanyl derivatives is a Class C felony, and the defendant shall not be released on probation, shock probation, conditional discharge, or parole until he or she has served at least fifty percent (50%) of the sentence imposed.

HISTORY: 2015 ch. 66, § 13, effective March 25, 2015; 2017 ch. 168, § 4, effective June 29, 2017.

218A.1411. Trafficking in controlled substance in or near school — Exception for misdemeanor salvia offenses — Penalty.

  1. Any person who unlawfully traffics in a controlled substance classified in Schedules I, II, III, IV or V, or a controlled substance analogue in any building used primarily for classroom instruction in a school or on any premises located within one thousand (1,000) feet of any school building used primarily for classroom instruction shall be guilty of a Class D felony, unless a more severe penalty is set forth in this chapter, in which case the higher penalty shall apply. The measurement shall be taken in a straight line from the nearest wall of the school to the place of violation.
  2. The provisions of subsection (1) of this section shall not apply to any misdemeanor offense relating to salvia.

History. Enact. Acts 1992, ch. 441, § 11, effective July 14, 1992; 2010, ch. 149, § 9, effective April 13, 2010; 2010, ch. 160, § 9, effective April 26, 2010; 2011, ch. 2, § 8, effective June 8, 2011; 2011, ch. 45, § 8, effective March 16, 2011; 2012, ch. 108, § 8, effective April 11, 2012.

NOTES TO DECISIONS

1.Colleges and Universities.

If the General Assembly had intended to limit the application of this section to transactions within 1,000 yards of a primary or secondary school, it would have employed those specific terms in the statute rather than the generic term “school,” which when given its ordinary meaning, includes colleges and universities; therefore, junior college was a “school” within the meaning of this section. Sanders v. Commonwealth, 901 S.W.2d 51, 1995 Ky. App. LEXIS 126 (Ky. Ct. App. 1995).

2.Montessori School.

A Montessori School facility is a “school” for the purposes of enforcement of this section, and to rule otherwise would circumvent the public policy underlying the enactment of this section. Brimmer v. Commonwealth, 6 S.W.3d 858, 1999 Ky. App. LEXIS 149 (Ky. Ct. App. 1999).

3.Intent.

KRS 218A.1411 contains no indication whatsoever that the legislature intended for the enhanced punishments to apply only if a drug trafficker knew that he was within 1,000 yards of a school; defendant’s attempt to impart a mens rea had no basis in the statutory language and KRS 501.020(2), 501.030 , 501.040 , and 501.050 did not require a contrary conclusion. Saxton v. Commonwealth, 315 S.W.3d 293, 2010 Ky. LEXIS 158 ( Ky. 2010 ).

Under KRS 218A.1411 , a defendant’s proximity to a school is not conduct and does not necessarily involve a culpable mental state where the prohibited conduct is illegal drug trafficking and the prohibited proximity to a school is a circumstance that can lead to harsher punishment for that illegal conduct regardless of a drug trafficker’s knowledge of a nearby school. Saxton v. Commonwealth, 315 S.W.3d 293, 2010 Ky. LEXIS 158 ( Ky. 2010 ).

KRS 218A.1411 is not an absolute liability statute because the culpable mental state is supplied by the drug trafficking statutes themselves, all of which require an actor to act knowingly and unlawfully. Saxton v. Commonwealth, 315 S.W.3d 293, 2010 Ky. LEXIS 158 ( Ky. 2010 ).

KRS 218A.1411 does not require any mental state, just otherwise unlawful trafficking within a particular physical area or zone; given the absence of mention of any mental state in KRS 218A.1411 , KRS 501.030(2) cannot be read to require imputation of a knowing mental state. Saxton v. Commonwealth, 315 S.W.3d 293, 2010 Ky. LEXIS 158 ( Ky. 2010 ).

KRS 218A.1411 contains no express requirement, or even suggestion, that the Commonwealth must prove that a drug trafficker knew of his proximity to a school; the absence of a mens rea as to the proximity issue poses no federal constitutional issues. Saxton v. Commonwealth, 315 S.W.3d 293, 2010 Ky. LEXIS 158 ( Ky. 2010 ).

4.Defense.
5.—Entrapment.

Mere fact that the confidential informants set up the drug transaction for a location within 1,000 yards of a school did not suffice as probative evidence of entrapment to traffic in drugs, in violation of KRS 218A.1411 , where (1) the evidence plainly showed that defendant was predisposed to traffic illegal drugs and that he had access to the drugs, acquired them and came prepared to sell them at the location suggested by the confidential informants, with all the risks that location entailed; and (2) there was nothing from which a rational jury could conclude that defendant’s conduct was induced by the government and that he would not have otherwise sold marijuana within 1,000 yards of a school; thus, defendant did not cite to any probative evidence of record that would support his entrapment defense, requiring the burden to shift to the Commonwealth. Saxton v. Commonwealth, 315 S.W.3d 293, 2010 Ky. LEXIS 158 ( Ky. 2010 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part. 2 Schedule Substances, §§ 9.15A, 9.15D, 9.19, 9.19B.

218A.1412. Trafficking in controlled substance in first degree — Penalties.

  1. A person is guilty of trafficking in a controlled substance in the first degree when he or she knowingly and unlawfully traffics in:
    1. Four (4) grams or more of cocaine;
    2. Two (2) grams or more of methamphetamine;
    3. Ten (10) or more dosage units of a controlled substance that is classified in Schedules I or II and is a narcotic drug, or a controlled substance analogue;
    4. Any quantity of heroin, fentanyl, carfentanil, or fentanyl derivatives; lysergic acid diethylamide; phencyclidine; gamma hydroxybutyric acid (GHB), including its salts, isomers, salts of isomers, and analogues; or flunitrazepam, including its salts, isomers, and salts of isomers; or
    5. Any quantity of a controlled substance specified in paragraph (a), (b), or (c) of this subsection in an amount less than the amounts specified in those paragraphs.
  2. The amounts specified in subsection (1) of this section may occur in a single transaction or may occur in a series of transactions over a period of time not to exceed ninety (90) days that cumulatively result in the quantities specified in this section.
    1. Any person who violates the provisions of subsection (1)(a), (b), (c), or (d) of this section shall be guilty of a Class C felony for the first offense and a Class B felony for a second or subsequent offense. (3) (a) Any person who violates the provisions of subsection (1)(a), (b), (c), or (d) of this section shall be guilty of a Class C felony for the first offense and a Class B felony for a second or subsequent offense.
    2. Any person who violates the provisions of subsection (1)(e) of this section shall be guilty of a Class D felony for the first offense and a Class C felony for a second or subsequent offense.
    3. Any person convicted of a Class C felony offense or higher under this section shall not be released on probation, shock probation, parole, conditional discharge, or other form of early release until he or she has served at least fifty percent (50%) of the sentence imposed in cases where the trafficked substance was heroin, fentanyl, carfentanil, or fentanyl derivatives.

History. Enact. Acts 1992, ch. 441, § 12, effective July 14, 1992; 1998, ch. 606, § 63, effective July 15, 1998; 2000, ch. 169, § 1, effective July 14, 2000; 2002, ch. 259, § 1, effective July 15, 2002; 2011, ch. 2, § 9, effective June 8, 2011; 2015 ch. 66, § 14, effective March 25, 2015; 2017 ch. 168, § 5, effective June 29, 2017; 2019 ch. 130, § 2, effective June 27, 2019.

NOTES TO DECISIONS

Cited:

1.Double Jeopardy.

Defendant was not placed in double jeopardy as a result of her conviction for both cocaine trafficking and criminal syndicate. The count of cocaine trafficking was not a “lesser included offense” of the crime of criminal syndicate and there is no double jeopardy violation because the statutory crimes of trafficking in a controlled substance and criminal syndicate each require proof of facts which the other does not. Dishman v. Commonwealth, 906 S.W.2d 335, 1995 Ky. LEXIS 114 ( Ky. 1995 ); Edmonds v. Commonwealth, 906 S.W.2d 343, 1995 Ky. LEXIS 113 ( Ky. 1995 ).

Defendant’s convictions for manufacturing methamphetamine and trafficking in methamphetamine did not violate defendant’s double jeopardy rights pursuant to Ky. Const. § 13 and U.S. Const. amend. V; defendant’s double jeopardy rights were not violated because the crimes of manufacturing methamphetamine and trafficking in methamphetamine were separate offenses and, thus, there were not two convictions for the same offense. Brooks v. Commonwealth, 217 S.W.3d 219, 2007 Ky. LEXIS 65 ( Ky. 2007 ).

Because § 218A.1412(1) criminalizes the trafficking of a, singular, controlled substance, the Commonwealth may bring multiple charges under § 218A.1412(1) when the defendant is found to have been trafficking multiple substances, regardless of their statutory grouping. Johnson v. Commonwealth, 553 S.W.3d 213, 2018 Ky. LEXIS 290 ( Ky. 2018 ).

2.Evidence.

Jury could have found from the evidence that defendant knowingly sold cocaine to undercover agent, despite his contention that he believed he was only selling “flick” or fake cocaine. Buford v. Commonwealth, 942 S.W.2d 909, 1997 Ky. App. LEXIS 32 (Ky. Ct. App. 1997).

Paper found in defendant’s car was sufficiently linked to a trafficking in a controlled substance charge as the paper was relevant and as a detective gave expert testimony that the paper was a drug transaction list; the detective was properly permitted to render his opinion without a Daubert hearing as the Commonwealth established that the detective had nine (9) years of narcotic experience and had seen dozens of similar papers. Further, the probative value of the paper was not outweighed by the danger of undue prejudice. Dixon v. Commonwealth, 149 S.W.3d 426, 2004 Ky. LEXIS 272 ( Ky. 2004 ).

Sufficient evidence supported defendant’s conviction on two (2) counts of trafficking in a controlled substance in the first degree, in violation of KRS 218A.1412 , based on two (2) cocaine sales to a confidential informant because the informant testified that defendant was the man who sold her the cocaine, and the transactions were recorded on audiotape and videotape. Also defendant was later shown on a videotape entering a convenience store and purchasing a money order; defendant identified the signature on the money order as his own; the store clerk identified defendant as the man who purchased the money order with cash; and one of the bills given to the confidential informant by police was found in the store’s safe. Fairrow v. Commonwealth, 175 S.W.3d 601, 2005 Ky. LEXIS 335 ( Ky. 2005 ).

Where the officer who posed as a prostitute testified that defendant told her he had crack and wanted to have intercourse and oral sex, and when she asked how much he had defendant replied that he had ten dollars ($10), defendant was not entitled to a directed verdict on a charge of drug trafficking, as the jurors could infer from his conversation with the officer that he offered to exchange both crack cocaine and money for sex. Clay v. Commonwealth, 2007 Ky. App. LEXIS 14 (Ky. Ct. App., sub. op., 2007 Ky. App. Unpub. LEXIS 414 (Ky. Ct. App. Jan. 12, 2007).

Where defendant claimed an officer was improperly allowed to testify that bags of crack confiscated from defendant were packaged for sale, the claim was not reviewable because it had not been raised below and there was no palpable error under RCr 10.26; in view of the ample evidence that defendant trafficked in drugs, there was no substantial possibility that the result would have been different absent the allegedly improper testimony. Clay v. Commonwealth, 2007 Ky. App. LEXIS 14 (Ky. Ct. App., sub. op., 2007 Ky. App. Unpub. LEXIS 414 (Ky. Ct. App. Jan. 12, 2007).

Because a jury could have found that defendant was guilty of trafficking in a controlled substance where a detective gave specific, elaborate, and uncontroverted eyewitness testimony detailing his interaction with defendant and the events surrounding the drug buy, and a Kentucky State Police crime lab technician verified that the pills purchased from defendant were Percocets that contained oxycodone, defendant’s request for a directed verdict was properly denied. Baker v. Commonwealth, 234 S.W.3d 389, 2007 Ky. App. LEXIS 340 (Ky. Ct. App. 2007).

Trial court properly denied defendant’s motion for a directed verdict of acquittal on the charge of first-degree trafficking in a controlled substance in violation of KRS 218A.1412 because there was more than adequate evidence for a jury to convict defendant of first-degree trafficking; a jury could reasonably rely on a confidential informant’s testimony and find defendant guilty beyond a reasonable doubt of first-degree trafficking because when asked to pick out the drug dealer who was nicknamed “Black” from a crowd of people at the courthouse, the informant chose defendant. Peyton v. Commonwealth, 253 S.W.3d 504, 2008 Ky. LEXIS 130 ( Ky. 2008 ), cert. denied, 555 U.S. 1035, 129 S. Ct. 604, 172 L. Ed. 2d 463, 2008 U.S. LEXIS 8474 (U.S. 2008).

Where police officers had a tip that a person selling cocaine was staying in a certain hotel room, defendant was staying in that room and a search of the room uncovered a quantity of cocaine, the quantity of cocaine recovered indicated that its possessor was a mid-level dealer, defendant admitted the cocaine was his, and a large amount of cash was also found in the room, and defendant admitted the cash was his, evidence was sufficient to allow a jury to conclude that defendant was guilty beyond a reasonable doubt of trafficking in cocaine. Johnson v. Commonwealth, 277 S.W.3d 635, 2009 Ky. App. LEXIS 15 (Ky. Ct. App. 2009).

Evidence was sufficient to support defendant’s conviction of first-degree complicity to trafficking in a controlled substance in violation of KRS 502.020 , 218A.1412 (a) because it showed that defendant took both phone calls from the informant, discussed with him the availability and sale of the drugs, arranged the sale, drove herself and the person who had the drugs to the meeting place, and took $ 100 from the informant. Childers v. Commonwealth, 2010 Ky. LEXIS 285 (Ky. Dec. 16, 2010), sub. op., 332 S.W.3d 64, 2010 Ky. LEXIS 306 ( Ky. 2010 ).

Because the Commonwealth put forth sufficient evidence to overcome a motion for directed verdict on the charge of first-degree possession of a controlled substance, the trial court did not err in denying the motion; the evidence was sufficient for a jury to infer that defendant was in actual possession of methamphetamine and tossed it while fleeing police because an officer observed his hand moving away from his body while he was fleeing and recovered the methamphetamine on the ground. McGuire v. Commonwealth, 595 S.W.3d 90, 2019 Ky. LEXIS 435 ( Ky. 2019 ).

Trial court did not err in denying defendant’s motion for directed verdict on the charge of first-degree possession of a controlled substance because the evidence was sufficient for a jury reasonably to infer that defendant possessed methamphetamine with intent to distribute it; a police officer testified that small plastic bags like those found on defendant were commonly used to hold drugs and that the quantity of methamphetamine was inconsistent with personal use. McGuire v. Commonwealth, 595 S.W.3d 90, 2019 Ky. LEXIS 435 ( Ky. 2019 ).

3.— Seizure.

Warrantless seizure of marijuana was legal where it was inadvertently discovered in an open kitchen drawer by a firefighter during the legitimate performance of that firefighter’s duties. Hazelwood v. Commonwealth, 8 S.W.3d 886, 1999 Ky. App. LEXIS 162 (Ky. Ct. App. 1999).

It is unnecessary for a conviction of trafficking in a controlled substance that the controlled substance be seized by the police or that it be introduced at trial; conviction can be premised on circumstantial evidence of such nature that, based on the whole case, it would not be clearly unreasonable for a jury to find guilt beyond a reasonable doubt. Graves v. Commonwealth, 17 S.W.3d 858, Ky. LEXIS 4 (Ky.), cert. denied, 531 U.S. 982, 121 S. Ct. 435, 148 L. Ed. 2d 442, 2000 U.S. LEXIS 7391 (U.S. 2000).

Police did not improperly detain defendant who was stopped because the rear license plate on his car was not illuminated, or coerce him into giving them consent to search his car, and the trial court erred by suppressing drugs which police found. Commonwealth v. Erickson, 132 S.W.3d 884, 2004 Ky. App. LEXIS 38 (Ky. Ct. App. 2004).

Where a drug dog alerted to the presence of drugs inside a car, and defendant was the driver and lone occupant, a police officer had the authority under the Fourth Amendment to search defendant’s person for drugs. Morton v. Commonwealth, 232 S.W.3d 566, 2007 Ky. App. LEXIS 302 (Ky. Ct. App. 2007).

Though the search of defendant’s car incident to his arrest was illegal under Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485, 2009 U.S. LEXIS 3120, which was decided after the search, as the officers conducting the search reasonably relied on New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768, 1981 U.S. LEXIS 13, under which the search was legal, the exclusionary rule did not apply and defendant’s motion to suppress cocaine found during the search was properly denied. Valesquez v. Commonwealth, 362 S.W.3d 346, 2011 Ky. App. LEXIS 207 (Ky. Ct. App. 2011).

4.— Videotape.

Admission of search warrant execution and arrest video tape, which contained dramatic footage of the arrest, was not inflammatory, provocative, unnecessary, irrelevant or unduly prejudicial, but provided relevant and probative evidence of the circumstances of the crimes charged to defendant of trafficking cocaine and criminal syndicate; showing of such tape did not rise to the level of manifest injustice or palpable error under RCr 10.26. Edmonds v. Commonwealth, 906 S.W.2d 343, 1995 Ky. LEXIS 113 ( Ky. 1995 ).

5.—Amount of Drugs.

As long as the Commonwealth could prove the presence of cocaine and heroin, the quantity could be proven by the total weight of the substance sold, without regard to its purity. Commonwealth v. Leary, 2015 Ky. App. LEXIS 27 (Ky. Ct. App., sub. op., 2015 Ky. App. Unpub. LEXIS 867 (Ky. Ct. App. Feb. 27, 2015).

Court of Appeals of Kentucky majority held that the plain language of Ky. Rev. Stat. Ann. § 218A.1412 , paired with the definition of cocaine in Ky. Rev. Stat. Ann. § 218A.010(5), creates a statutory scheme whereby the Commonwealth is not required to prove that pure cocaine accounted for the weight of four grams or more. The Supreme Court of Kentucky agrees with the majority of that court. Hawkins v. Commonwealth, 536 S.W.3d 697, 2017 Ky. LEXIS 517 ( Ky. 2017 ), overruled in part, Ray v. Commonwealth, 611 S.W.3d 250, 2020 Ky. LEXIS 403 ( Ky. 2020 ).

Defendant's conviction under Ky. Rev. Stat. Ann. § 218A.1412(1)(a) was sustained where the solid found on defendant included both pure cocaine and cutting agents, and under the dictionary definition of substance and the statutory definition of cocaine, the entirety of the solid tested was to be considered cocaine. Hawkins v. Commonwealth, 536 S.W.3d 697, 2017 Ky. LEXIS 517 ( Ky. 2017 ), overruled in part, Ray v. Commonwealth, 611 S.W.3d 250, 2020 Ky. LEXIS 403 ( Ky. 2020 ).

6.Lesser Included Offense.

Three (3) counts of cocaine trafficking were not “lesser included offenses” of the crime of criminal syndicate and there was no double jeopardy violation because the statutory crimes of trafficking in a controlled substance and criminal syndicate each require proof of facts which the other does not. Brooks v. Commonwealth, 905 S.W.2d 861, 1995 Ky. LEXIS 104 ( Ky. 1995 ); Smith v. Commonwealth, 905 S.W.2d 865, 1995 Ky. LEXIS 115 ( Ky. 1995 ).

Criminal facilitation is not a lesser included offense of trafficking in or possession of a controlled substance and, thus, defendant was not entitled to an instruction on that theory. Houston v. Commonwealth, 975 S.W.2d 925, 1998 Ky. LEXIS 123 ( Ky. 1998 ), limited, Commonwealth v. Montaque, 23 S.W.3d 629, 2000 Ky. LEXIS 41 ( Ky. 2000 ).

7.Instructions to Jury.

In a prosecution for trafficking in cocaine in which the Commonwealth’s sole theory of guilt was that the defendant possessed cocaine with the intent to sell it, jury instructions denied the defendant a unanimous verdict where the court instructed the jury that it was to find the defendant guilty if he knowingly possessed cocaine with the intent to traffic in it and also defined trafficking to mean the manufacture, distribution, dispensation, sale, or transfer of a controlled substance; such instructions allowed the jury to convict the defendant for conduct other than the sale of cocaine and also allowed the jury to convict the defendant on different theories of guilt. Burnett v. Commonwealth, 31 S.W.3d 878, 2000 Ky. LEXIS 146 ( Ky. 2000 ), overruled in part, Travis v. Commonwealth, 327 S.W.3d 456, 2010 Ky. LEXIS 296 ( Ky. 2010 ).

Trial court committed substantial error under RCr 10.26, and defendant’s conviction for trafficking in a controlled substance was reversed, as the jury was instructed to find defendant guilty if it found that he possessed cocaine with the intent to transfer; KRS 218A.1412(1), KRS 218A.010(28), and KRS 218A.010(29) do not define merely possessing a controlled substance with the intent to transfer as trafficking, and the instruction permitted the jury to convict defendant based on a theory unsupported in the law. Rodefer v. Commonwealth, 2004 Ky. App. LEXIS 140 (Ky. Ct. App. May 14, 2004).

Although the jury instruction on trafficking in a controlled substance in the first degree was improper, defendant’s own testimony would have supported a conviction under the “transfer” alternative of KRS 218A.010(34), where defendant testified that he committed the offense, and the faulty instruction did not result in manifest injustice, much less seriously affect the fairness, integrity, or public reputation of judicial proceedings. Commonwealth v. Rodefer, 189 S.W.3d 550, 2006 Ky. LEXIS 109 ( Ky. 2006 ).

Where defendant claimed he was denied a unanimous verdict by an instruction regarding drug trafficking that included multiple theories, one of which was not supported by the evidence, the claim was not reviewable because it had not been raised below and there was no palpable error under RCr 10.26, the evidence having been more than sufficient to convict him under one of the theories set out in the instruction: possessing cocaine with the intent to sell it. Clay v. Commonwealth, 2007 Ky. App. LEXIS 14 (Ky. Ct. App., sub. op., 2007 Ky. App. Unpub. LEXIS 414 (Ky. Ct. App. Jan. 12, 2007).

Defendant was entitled to an innocent possession instruction under KRS 218A.1412 or 218A.220 because he offered evidence that he came into incidental possession of the drugs when he found them in his brother’s driveway, and he attempted to call the sheriff to report them but was arrested before he was able to turn them in. Commonwealth v. Adkins, 331 S.W.3d 260, 2011 Ky. LEXIS 11 ( Ky. 2011 ).

Because the jury instruction on first-degree trafficking in a controlled substance accurately incorporated all the elements of the crime and required the jury to find each element before it found defendant guilty, defendant’s argument that the instruction was defective was unpersuasive; it was not necessary for the instruction to contain an exact replication of the phrase “knowingly and unlawfully traffics in” from this section. Martin v. Commonwealth, 409 S.W.3d 340, 2013 Ky. LEXIS 398 ( Ky. 2013 ).

Defendant was not entitled to a “no duty to retreat” jury instruction because, while he might have had the victim's permission to be on the premises, collecting the money owed for heroin was as much a part of the illegal sale as was the delivery of the heroin. Jackson v. Commonwealth, 481 S.W.3d 794, 2016 Ky. LEXIS 10 ( Ky. 2016 ).

8.Sentence.
9.— Enhancement.

Because defendant was also convicted of being a second-degree persistent felony offender pursuant to KRS 532.080 , her sentence for first-degree trafficking in a controlled substance under this section was correctly enhanced pursuant to KRS 532.080 . Brooks v. Commonwealth, 905 S.W.2d 861, 1995 Ky. LEXIS 104 ( Ky. 1995 ).

Because defendant had two (2) prior convictions for first-degree trafficking in a controlled substance, the trial court properly enhanced his sentence as both a “second or subsequent offense” and a persistent felony offender. Morrow v. Commonwealth, 77 S.W.3d 558, 2002 Ky. LEXIS 133 ( Ky. 2002 ).

Because KRS 218A.010(35) did not require that an underlying prior drug trafficking offense be a felony conviction in order for it to enhance a future conviction as a second or subsequent offense, defendant’s prior misdemeanor marijuana trafficking conviction supported the enhancement of his trafficking charge to a second or subsequent offense. Jackson v. Commonwealth, 319 S.W.3d 347, 2010 Ky. LEXIS 218 ( Ky. 2010 ).

10.Conviction Reversed for Cumulative Errors.

Defendant’s conviction for trafficking in a controlled substance stemming from the sale of Oxycontin to a police informant was reversed as prosecutorial misconduct in closing argument and the admission of improper expert testimony, questionably relevant testimony, improper prior bad acts testimony, and improper investigative hearsay, through a detective, cumulatively, denied defendant a fair trial; individually, the errors did not require a reversal. Mitchell v. Commonwealth, 2003 Ky. App. LEXIS 216 (Ky. Ct. App. Aug. 29, 2003), rev'd, 165 S.W.3d 129, 2005 Ky. LEXIS 185 ( Ky. 2005 ).

11.Complicity.

In a controlled drug buy, an informant approached a car occupied by defendant and a passenger; the informant gave defendant money and defendant handed the informant an oxycodone tablet but the informant was unsure whether defendant handed the passenger the money or if the passenger handed defendant the pill. While defendant was originally indicted for trafficking in a controlled substance in violation of KRS 218A.1412(1) as a principal actor, RCr P. 6.16 permitted the indictment to be amended to charge her under a complicity theory of guilt; defendant was not prejudiced by the amendment, because both the complicity and principal actor theories of guilt were supported by the evidence. Commonwealth v. Combs, 316 S.W.3d 877, 2010 Ky. LEXIS 112 ( Ky. 2010 ).

Evidence was sufficient to support defendant’s conviction of complicity to trafficking in a controlled substance in the first degree under KRS 502.020 and KRS 218A.1412 (a) because it showed that defendant took two phone calls from the buyer, who was acting as a confidential informant for the police; discussed with the buyer the availability and sale of the drugs, including type, quantity and price; located the Oxycodone for the buyer; arranged the sale; drove herself and the person allegedly in possession of the drugs to the meeting place in order for the buy to occur; and took the $100 buy money from the buyer. Further, the forensic examination confirmed that the pills were Oxycodone, a Schedule II controlled substance. Childers v. Commonwealth, 332 S.W.3d 64, 2010 Ky. LEXIS 30 6 ( Ky. 2010 ), overruled in part, Allen v. Commonwealth, 395 S.W.3d 451, 2013 Ky. LEXIS 30 ( Ky. 2013 ).

Evidence was sufficient to support defendant’s conviction of complicity to trafficking in a controlled substance in the first degree under KRS 502.020 and KRS 218A.1412 (a) because it showed that defendant took two phone calls from the buyer, who was acting as a confidential informant for the police; discussed with the buyer the availability and sale of the drugs, including type, quantity and price; located the Oxycodone for the buyer; arranged the sale; drove herself and the person allegedly in possession of the drugs to the meeting place in order for the buy to occur; and took the $100 buy money from the buyer. Further, the forensic examination confirmed that the pills were Oxycodone, a Schedule II controlled substance. Childers v. Commonwealth, 332 S.W.3d 64, 2010 Ky. LEXIS 30 6 ( Ky. 2010 ), overruled in part, Allen v. Commonwealth, 395 S.W.3d 451, 2013 Ky. LEXIS 30 ( Ky. 2013 ).

Cited:

Lofthouse v. Commonwealth, 13 S.W.3d 236, 2000 Ky. LEXIS 23 ( Ky. 2000 ); Coleman v. Commonwealth, 100 S.W.3d 745, 2002 Ky. LEXIS 247 ( Ky. 2002 ), overruled in part, Bratcher v. Commonwealth, 424 S.W.3d 411, 2014 Ky. LEXIS 85 ( Ky. 2014 ); Johnson v. Commonwealth, 105 S.W.3d 430, 2003 Ky. LEXIS 117 ( Ky. 2003 ); Turner v. Commonwealth, 248 S.W.3d 543, 2008 Ky. LEXIS 59 ( Ky. 2008 )

Research References and Practice Aids

Treatises.

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part. 2 Schedule Substances, §§ 9.11A, 9.11B.

218A.1413. Trafficking in controlled substance in second degree — Penalties.

  1. A person is guilty of trafficking in a controlled substance in the second degree when:
    1. He or she knowingly and unlawfully traffics in:
      1. Ten (10) or more dosage units of a controlled substance classified in Schedules I and II that is not a narcotic drug; or specified in KRS 218A.1412 , and which is not a synthetic drug, salvia, or marijuana; or
      2. Twenty (20) or more dosage units of a controlled substance classified in Schedule III;
    2. He or she knowingly and unlawfully prescribes, distributes, supplies, or sells an anabolic steroid for:
      1. Enhancing human performance in an exercise, sport, or game; or
      2. Hormonal manipulation intended to increase muscle mass, strength, or weight in the human species without a medical necessity; or
    3. He or she knowingly and unlawfully traffics in any quantity of a controlled substance specified in paragraph (a) of this subsection in an amount less than the amounts specified in that paragraph.
    1. Except as provided in paragraph (b) of this subsection, any person who violates the provisions of subsection (1) of this section shall be guilty of a Class D felony for the first offense and a Class C felony for a second or subsequent offense. (2) (a) Except as provided in paragraph (b) of this subsection, any person who violates the provisions of subsection (1) of this section shall be guilty of a Class D felony for the first offense and a Class C felony for a second or subsequent offense.
    2. Any person who violates the provisions of subsection (1)(c) of this section shall be guilty of:
      1. A Class D felony for the first offense, except that KRS Chapter 532 to the contrary notwithstanding, the maximum sentence to be imposed shall be no greater than three (3) years; and
      2. A Class D felony for a second offense or subsequent offense.

History. Enact. Acts 1992, ch. 441, § 13, effective July 14, 1992; 1998, ch. 606, § 64, effective July 15, 1998; 2010, ch. 149, § 10, effective April 13, 2010; 2010, ch. 160, § 10, effective April 26, 2010; 2011, ch. 2, § 10, effective June 8, 2011; 2011, ch. 45, § 9, effective March 16, 2011; 2012, ch. 108, § 9, effective April 11, 2012; 2012, ch. 156, § 7, effective July 12, 2012.

Legislative Research Commission Note.

(7/12/2012). This statute was amended by 2012 Ky. Acts chs. 108 and 156, which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1.Methamphetamine.

The presence of the chemical compounds ephedrine or pseudoephedrine plus the other requisite chemical reagents for manufacturing methamphetamine are sufficient to support a conviction for trafficking in the Schedule II controlled substance methamphetamine. Commonwealth v. Hayward, 49 S.W.3d 674, 2001 Ky. LEXIS 4 ( Ky. 2001 ).

2.Sentence.

Circuit court could enhance defendant's sentence beyond the three-year cap set forth in subsection (2)(b)(1) because the statute did not prohibit defendant's sentence from being enhanced to five years imprisonment by virtue of his status as a persistent felony offender conviction. Commonwealth v. Gamble, 453 S.W.3d 716, 2015 Ky. LEXIS 15 ( Ky. 2015 ).

General Assembly only excluded first-degree possession of a controlled substance from persistent felony offender (PFO) enhancement eligibility, demonstrating that trafficking in a controlled substance in the second degree is eligible for PFO enhancement; the phrase “except that Ky. Rev. Stat. Ann. ch. 532 to the contrary notwithstanding” refers expressly to the Class D felony categorization and penalty range espoused in Ky. Rev. Stat. Ann. § 532.060 , not the entire portion of the chapter. Commonwealth v. Gamble, 453 S.W.3d 716, 2015 Ky. LEXIS 15 ( Ky. 2015 ).

In a second-degree drug trafficking case, a circuit court's decision to sentence defendant to four consecutive, one-year terms for a total of four years' imprisonment fell within the permitted sentencing range since the longest term the circuit court was authorized to impose was twenty years; the portion of the drug trafficking statute relating to first time offenders was subject to a persistent felony offender enhancement. Eldridge v. Commonwealth, 479 S.W.3d 614, 2015 Ky. App. LEXIS 181 (Ky. Ct. App. 2015).

Because career offender guideline covered all conduct under Kentucky statute, defendant’s Kentucky trafficking offense categorically qualified as “controlled substance offense” under Guidelines, and thus, district court properly deemed defendant to be a career offender. United States v. Jackson, 984 F.3d 507, 2021 FED App. 2P, 2021 U.S. App. LEXIS 252 (6th Cir. Ky. 2021 ).

Research References and Practice Aids

Northern Kentucky Law Review.

2010 General Law Issue: Article: A Call for Reformation of the Federal Sentencing Guidelines Applicable to the Large-Scale Distribution of Anabolic Steroids, 37 N. Ky. L. Rev. 83 (2010).

Treatises.

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part. 2 Schedule Substances, §§ 9.13A — 9.13C.

218A.1414. Trafficking in controlled substance in third degree — Penalties.

  1. A person is guilty of trafficking in a controlled substance in the third degree when he or she knowingly and unlawfully traffics in:
    1. Twenty (20) or more dosage units of a controlled substance classified in Schedules IV or V; or
    2. Any quantity of a controlled substance specified in paragraph (a) of this subsection in an amount less than the amount specified in that paragraph.
    1. Any person who violates the provisions of subsection (1)(a) of this section shall be guilty of: (2) (a) Any person who violates the provisions of subsection (1)(a) of this section shall be guilty of:
      1. A Class A misdemeanor for a first offense involving one hundred twenty (120) or fewer dosage units;
      2. A Class D felony for a first offense involving more than one hundred twenty (120) dosage units; and
      3. A Class D felony for a second or subsequent offense.
    2. Any person who violates the provisions of subsection (1)(b) of this section shall be guilty of:
      1. A Class A misdemeanor for the first offense, subject to the imposition of presumptive probation; and
      2. A Class D felony for a second or subsequent offense, except that KRS Chapter 532 to the contrary notwithstanding, the maximum sentence to be imposed shall be no greater than three (3) years.

History. Enact. Acts 1992, ch. 441, § 14, effective July 14, 1992; 2011, ch. 2, § 11, effective June 8, 2011; 2015 ch. 66, § 16, effective March 25, 2015.

NOTES TO DECISIONS

Cited:

Morrow v. Commonwealth, 77 S.W.3d 558, 2002 Ky. LEXIS 133 ( Ky. 2002 ); Turner v. Commonwealth, 248 S.W.3d 543, 2008 Ky. LEXIS 59 ( Ky. 2008 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part. 2 Schedule Substances, §§ 9.15B, 9.15C.

218A.14141. Trafficking in a misrepresented controlled substance.

  1. A person is guilty of trafficking in a misrepresented controlled substance when he or she knowingly and unlawfully sells or distributes any Schedule I controlled substance, carfentanil, or fentanyl while misrepresenting the identity of the Schedule I controlled substance, carfentanil, or fentanyl being sold or distributed as a legitimate pharmaceutical product.
  2. The provisions of this section are intended to be a separate offense from others in this chapter, and shall be punished in addition to violations of this chapter occurring during the same course of conduct.
  3. Trafficking in a misrepresented controlled substance is a Class D felony.

HISTORY: 2017 ch. 168, § 8, effective June 29, 2017.

218A.1415. Possession of controlled substance in first degree — Penalties.

  1. A person is guilty of possession of a controlled substance in the first degree when he or she knowingly and unlawfully possesses:
    1. A controlled substance that is classified in Schedules I or II and is a narcotic drug;
    2. A controlled substance analogue;
    3. Methamphetamine;
    4. Lysergic acid diethylamide;
    5. Phencyclidine;
    6. Gamma hydroxybutyric acid (GHB), including its salts, isomers, salts of isomers, and analogues; or
    7. Flunitrazepam, including its salts, isomers, and salts of isomers.
  2. Possession of a controlled substance in the first degree is a Class D felony subject to the following provisions:
    1. The maximum term of incarceration shall be no greater than three (3) years, notwithstanding KRS Chapter 532;
    2. For a person’s first or second offense under this section, he or she may be subject to a period of:
      1. Deferred prosecution pursuant to KRS 218A.14151 ; or
      2. Presumptive probation;
    3. Deferred prosecution under paragraph (b) of this subsection shall be the preferred alternative for a first offense; and
    4. If a person does not enter a deferred prosecution program for his or her first or second offense, he or she shall be subject to a period of presumptive probation, unless a court determines the defendant is not eligible for presumptive probation as defined in KRS 218A.010 .

History. Enact. Acts 1992, ch. 441, § 15, effective July 14, 1992; 1998, ch. 606, § 65, effective July 15, 1998; 2002, ch. 259, § 2, effective July 15, 2002; 2011, ch. 2, § 12, effective June 8, 2011.

NOTES TO DECISIONS

Cited:

1.Deferred Prosecution.

Trial court did not err in denying defendant’s motion to enter into the deferred prosecution program; under KRS 218A.14151 , the granting of deferred prosecution was solely within the province of the prosecution and the trial court could not substitute its judgment for that of the prosecution. Jones v. Commonwealth, 413 S.W.3d 306, 2012 Ky. App. LEXIS 293 (Ky. Ct. App. 2012).

2.Lesser Included Offense.

Criminal facilitation is not a lesser included offense of trafficking in or possession of a controlled substance and, thus, defendant was not entitled to an instruction on that theory. Houston v. Commonwealth, 975 S.W.2d 925, 1998 Ky. LEXIS 123 ( Ky. 1998 ), limited, Commonwealth v. Montaque, 23 S.W.3d 629, 2000 Ky. LEXIS 41 ( Ky. 2000 ).

In a prosecution for first-degree possession of a controlled substance, defendant was not entitled to a jury instruction on possession of drug paraphernalia, since such offense was not a lesser-included offense of possession of a controlled substance; and a finding of guilt regarding possession of drug paraphernalia would not have precluded a finding of guilt regarding possession of a controlled substance. Bethel v. Commonwealth, 2007 Ky. App. LEXIS 105 (Ky. Ct. App. Apr. 13, 2007).

3.Quantity of Substance.

The existence of a nonweighable amount of cocaine residue on a pipe was sufficient to support a conviction under subsection (1). Bolen v. Commonwealth, 31 S.W.3d 907, 2000 Ky. LEXIS 147 ( Ky. 2000 ).

4.Conviction Void.

Trial court properly granted the motion to reconsider pursuant to CR 52.02 filed by the movant with regard to the movant’s action seeking to void the movant’s 1993 conviction for illegal possession of cocaine under KRS 218A.1415 ; the trial court properly found that, under KRS 218A.275(9), it had the authority to void the movant’s felony cocaine possession conviction upon the movant’s presentation of evidence that the movant completed a drug treatment program. Commonwealth v. Bowles, 107 S.W.3d 912, 2003 Ky. App. LEXIS 132 (Ky. Ct. App. 2003).

Trial court’s denial of defendant’s motion in limine which requested defendant be allowed to voir dire prospective jurors as to whether they could consider the full range of penalties for each charged offense, i. e. 10 to 20 years for manufacturing methamphetamine, KRS 218A.1432(2), KRS 532.060(2)(b), and 1 to 5 years for possession of a controlled substance in the first degree, KRS 218A.1415(2)(a), KRS 532.060(2)(d), was erroneous as defendant was denied the right to determine whether each prospective juror was qualified to serve on the jury. The error was not harmless, as the jurors did not impose the minimum sentence allowable for either conviction. Varble v. Commonwealth, 125 S.W.3d 246, 2004 Ky. LEXIS 9 ( Ky. 2004 ).

5.Treatment Program for First-Time Offenders.

Reading KRS 218A.275(9) in accordance with KRS 446.080(1), the provisions of KRS 218A.275(9) apply to a first-time felony possession of cocaine offense under KRS 218A.1415 ; the limitations under KRS 218A.275(1), limiting the treatment program only to convictions under KRS 218A.1416 and 218A.1417 , are not applicable to KRS 218A.275(9). Commonwealth v. Bowles, 107 S.W.3d 912, 2003 Ky. App. LEXIS 132 (Ky. Ct. App. 2003).

6.Double Jeopardy.

Convictions for manufacturing methamphetamine in violation of KRS 218A.1432(1)(a) and possession of methamphetamine in violation of KRS 218A.1415(1) constituted double jeopardy; one who manufactures a controlled substance also necessarily possesses the substance in the course of manufacturing it. Beaty v. Commonwealth, 125 S.W.3d 196, 2003 Ky. LEXIS 232 ( Ky. 2003 ).

As the Commonwealth’s evidence did not show defendant possessed any methamphetamine other than that found in glass jars he used in the manufacturing process, he was convicted of possessing the same methamphetamine that he was convicted of manufacturing, which violated his constitutional right to be free of double jeopardy. Johnson v. Commonwealth, 134 S.W.3d 563, 2004 Ky. LEXIS 110 ( Ky. 2004 ).

Defendant’s double jeopardy claim with respect to drug possession charges arising from seizure of a liquid that tested positive for methamphetamine failed because (1) the indictment did not charge defendant with the offense of possession of methamphetamine, KRS 218A.1415(1), and (2) the product of the manufacturing process, e.g., the methamphetamine that was actually manufactured, was not within the definition of “drug paraphernalia” under KRS 218A.500(1); thus defendant could not have been convicted of any crime except manufacturing methamphetamine premised upon his possession of the liquid that tested positive for methamphetamine; furthermore, because the trial court did not instruct the jury on the “to use” theory of KRS 218A.500(2), defendant could not have been convicted for possessing empty Prestone starting fluid cans seized on two (2) occasions when police searched his property. Fulcher v. Commonwealth, 149 S.W.3d 363, 2004 Ky. LEXIS 274 ( Ky. 2004 ), overruled in part, Ballinger v. Commonwealth, 459 S.W.3d 349, 2015 Ky. LEXIS 1611 ( Ky. 2015 ).

Defendant’s convictions for both possession of a controlled substance and promoting contraband did not violate double jeopardy under KRS 505.020(2)(a) as his arrest constituted a legal process that interrupted his possession of cocaine. Thus, his continued concealment of the second quantity once he arrived at the detention facility, after specifically denying any additional contraband, constituted a second, distinct offense. Stewart v. Commonwealth, 306 S.W.3d 502, 2010 Ky. LEXIS 57 ( Ky. 2010 ).

7.Sufficiency of Evidence.

Evidence supported defendant’s conviction for complicity to possession of a controlled substance (methamphetamine) under KRS 218A.1415 and 502.020 as: (1) defendant climbed out a window of a trailer and attempted to flee when officers arrived; (2) defendant was unseasonably dressed when defendant was apprehended; (3) there was a strong odor of ammonia on the clothes of defendant; (4) defendant and codefendant led the officers to believe the trailer was defendant’s home; and (5) the written consent form defendant signed allowing officers to search the trailer clearly indicated defendant was giving the officers consent to search the home of defendant. Cantrell v. Commonwealth, 288 S.W.3d 291, 2009 Ky. LEXIS 162 ( Ky. 2009 ).

Existence of cocaine residue on an ink pen casing and a glass pipe was sufficient to support a conviction for possession under KRS 218A.1415(1) because the evidence proved, not only, that defendant possessed and used drug paraphernalia, but also that defendant was knowingly in possession of cocaine by defendant’s own admission to a police officer. Finn v. Commonwealth, 313 S.W.3d 89, 2010 Ky. LEXIS 107 ( Ky. 2010 ).

Evidence was sufficient to support defendant’s convictions of first-degree possession of a controlled substance and possession of drug paraphernalia because the fact that defendant dropped the items immediately after the detective revealed himself as state police and the fact that the glass pipe was found only six to eight inches from the black cylinder, taken together with the fact that the detective observed multiple items being dropped, was more than enough for a juror to reasonably infer that defendant was in actual possession of the glass pipe. Commonwealth v. James, 586 S.W.3d 717, 2019 Ky. LEXIS 480 ( Ky. 2019 ).

Directed verdict was not warranted on a Ky. Rev. Stat. Ann. § 218A.1415(1)(c) charge where defendant repeatedly reached for his waistband during the struggle, after his arrest, the plastic bag of methamphetamine was discovered lying next to defendant’s discarded hard-hat, and the bag was in pristine condition and did not appear to have been there long. .

8.Sentencing.

Upon defendant’s conviction of two counts of trafficking in a controlled substance, second offense, pursuant to KRS 218A.1412 (2)(b) and one count of possessing a controlled substance, second offense, pursuant to KRS 218A.1415 (2)(b), defendant was sentenced as a first-degree persistent felony offender to a maximum term of twenty years in prison. Since judgment was pronounced against defendant in 2010 prior to the July 2011 effective date of amendments to the sentencing statutes – KRS 218A.1412 , 218A.1415 , 532.080 – he was not entitled to resentencing under KRS 446.110 . Rogers v. Commonwealth, 366 S.W.3d 446, 2012 Ky. LEXIS 72 ( Ky. 2012 ).

There was no merit to defendant’s argument that defendant should have received the benefit of retroactive application of the amendment to the statute and therefore, defendant’s underlying sentence for cocaine possession in the first degree, second or subsequent offense, should have been reduced; there was no retroactivity language in the statute, as required by KRS 446.080(3) for retroactive application. Goins v. Commonwealth, 2012 Ky. App. LEXIS 220 (Ky. Ct. App., sub. op., 2012 Ky. App. Unpub. LEXIS 1051 (Ky. Ct. App. Oct. 19, 2012).

Trial court did not err by sentencing defendant to a twenty-year term of imprisonment for first-degree possession of a controlled substance, firearm enhanced, in violation of KRS 218A.1415 and KRS 218A.992 , because his right to due process was not denied by his parole officer’s testimony during the penalty phase of trial regarding the potential effect of parole and sentence credits on defendant’s sentence. The testimony comported with the aims of the truth-in-sentencing statute, KRS 532.055 , and was not unfair. Cox v. Commonwealth, 399 S.W.3d 431, 2013 Ky. LEXIS 228 ( Ky. 2013 ).

Defendant charged with drug and drug-related offenses for which KRS 218A.1415(2)(b) deferred prosecution was possible could not use the trial court to order the Commonwealth to place defendant in that program, as KRS 218A.14151 gave the Commonwealth the discretion to decide who would be placed in that program and allowed the Commonwealth to consider KRS 218A.010 probation instead. For the trial court to order it would present a Ky. Const. § 27 separation of powers problem. Reilly v. Commonwealth, 2013 Ky. App. LEXIS 63 (Ky. Ct. App., sub. op., 2013 Ky. App. Unpub. LEXIS 964 (Ky. Ct. App. Apr. 19, 2013).

Word conviction in the first sentence does not bar the court’s reliance on all felony possession convictions as a basis for a persistent felony offender (PFO) charge and conviction, one phrase refers to the instant or underlying conviction, and the second sentence explicitly refers only to prior offenses; thus, the first sentence bars the usage of a current or underlying felony possession conviction as a basis for implicating the PFO statute, whereas the second sentence expressly states that prior felony possession offenses may be used. Boone v. Commonwealth, 412 S.W.3d 883, 2013 Ky. App. LEXIS 165 (Ky. Ct. App. 2013).

Under Kentucky’s scheme for trying a persistent felony offense (PFO) charge, evidence of prior felonies is introduced only after the defendant has been convicted of a subsequent felony offense; the Commonwealth may base a PFO charge on a prior felony possession conviction when the indictment includes a felony charge other than a felony possession charge. Boone v. Commonwealth, 412 S.W.3d 883, 2013 Ky. App. LEXIS 165 (Ky. Ct. App. 2013).

General Assembly only excluded first-degree possession of a controlled substance from persistent felony offender (PFO) enhancement eligibility, demonstrating that trafficking in a controlled substance in the second degree is eligible for PFO enhancement. Commonwealth v. Gamble, 453 S.W.3d 716, 2015 Ky. LEXIS 15 ( Ky. 2015 ).

9.Joinder of Offenses.

At defendant’s trial for two counts of trafficking in a controlled substance in violation of KRS 218A.1412(2)(b) and one count of possessing a controlled substance in violation of KRS 218A.1415(2)(b), joinder of the sales and possession-with-intent-to-sell trafficking charges under Ky RCr 6.18 did not unduly prejudice defendant because evidence of the interrelated charges would have been mutually admissible under KRE. 404(b) in separate trials as proof that defendant had the product to make two sales within a 24-hour period to a confidential informant. Rogers v. Commonwealth, 366 S.W.3d 446, 2012 Ky. LEXIS 72 ( Ky. 2012 ).

10.Trafficking Not Possession

Defendant’s prior possession convictions were properly characterized as prior felony offenses, plus he entered a guilty plea to another felony, trafficking, which met the first sentence of the statute as it was not a conviction of possession. Boone v. Commonwealth, 412 S.W.3d 883, 2013 Ky. App. LEXIS 165 (Ky. Ct. App. 2013).

Cited:

Adkins v. Commonwealth, 96 S.W.3d 779, 2003 Ky. LEXIS 13 ( Ky. 2003 ); McCloud v. Commonwealth, 286 S.W.3d 780, 2009 Ky. LEXIS 152 ( Ky. 2009 ).

Research References and Practice Aids

Kentucky Law Journal.

Article: Drug Law Reform-Retreating from an Incarceration Addiction, 98 Ky. L.J. 201 (2009/2010).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part. 2 Schedule Substances, § 9.12.

218A.14151. Deferred prosecution program for first and second offenders of KRS 218A.1415.

  1. A defendant charged with his or her first or second offense under KRS 218A.1415 may enter a deferred prosecution program subject to the following provisions:
    1. The defendant requests deferred prosecution in writing on an application created under KRS 27A.099 , and the prosecutor agrees;
    2. The defendant shall not be required to plead guilty or enter an Alford plea as a condition of applying for participation in the deferred prosecution program;
    3. The defendant agrees to the terms and conditions set forth by the Commonwealth’s attorney and approved by the court, which may include any provision authorized for pretrial diversion pursuant to KRS 533.250(1)(h) and (2); and
    4. The maximum length of participation in the program shall be two (2) years.
  2. If a prosecutor denies a defendant’s request to enter a deferred prosecution program, the prosecutor shall state on the record the substantial and compelling reasons why the defendant cannot be safely and effectively supervised in the community, is not amenable to community-based treatment, or poses a significant risk to public safety.
  3. If the defendant successfully completes the deferred prosecution program, the charges against the defendant shall be dismissed, and all records relating to the case, including but not limited to arrest records and records relating to the charges, shall be sealed, except as provided in KRS 27A.099 . The offense shall be deemed never to have occurred, except for the purposes of determining the defendant’s eligibility for deferred prosecution under this section or voiding of the conviction under KRS 218A.275 , and the defendant shall not be required to disclose the arrest or other information relating to the charges or participation in the program unless required to do so by state or federal law.
  4. If the defendant is charged with violating the conditions of the program, the court, upon motion of the Commonwealth’s attorney, shall hold a hearing to determine whether the defendant violated the conditions of the program.
  5. If the court finds that the defendant violated the conditions of the program, the court may, with the approval of the prosecutor:
    1. Continue the defendant’s participation in the program;
    2. Change the terms and conditions of the defendant’s participation in the program; or
    3. Order the defendant removed from the program and proceed with ordinary prosecution for the offense charged.

History. Enact. Acts 2011, ch. 2, § 20, effective June 8, 2011; 2012, ch. 156, § 9, effective July 12, 2012.

NOTES TO DECISIONS

1.Jurisdiction.

County attorney and the district court did not have the authority to approve a deferred prosecution on a charge of first-degree possession of a controlled substance under KRS 218A.14151 because only the Commonwealth’s attorney and the circuit court had jurisdiction over a felony offense. Commonwealth v. Vibbert, 397 S.W.3d 910, 2013 Ky. App. LEXIS 60 (Ky. Ct. App. 2013).

2.Grant or Denial.

Trial court did not err in denying defendant’s motion to enter into the deferred prosecution program; under KRS 218A.14151 , the granting of deferred prosecution was solely within the province of the prosecution and the trial court could not substitute its judgment for that of the prosecution. Jones v. Commonwealth, 413 S.W.3d 306, 2012 Ky. App. LEXIS 293 (Ky. Ct. App. 2012).

Defendant charged with drug and drug-related offenses for which KRS 218A.1415(2)(b) deferred prosecution was possible could not use the trial court to order the Commonwealth to place defendant in that program, as KRS 218A.14151 gave the Commonwealth the discretion to decide who would be placed in that program and allowed the Commonwealth to consider KRS 218A.010 probation instead. For the trial court to order it would present a Ky. Const. § 27 separation of powers problem. Reilly v. Commonwealth, 2013 Ky. App. LEXIS 63 (Ky. Ct. App., sub. op., 2013 Ky. App. Unpub. LEXIS 964 (Ky. Ct. App. Apr. 19, 2013).

218A.1416. Possession of controlled substance in second degree — Penalties.

  1. A person is guilty of possession of a controlled substance in the second degree when he or she knowingly and unlawfully possesses: a controlled substance classified in Schedules I or II which is not a narcotic drug; or specified in KRS 218A.1415 ; or a controlled substance classified in Schedule III; but not synthetic drugs, salvia, or marijuana.
  2. Possession of a controlled substance in the second degree is a Class A misdemeanor.

History. Enact. Acts 1992, ch. 441, § 16, effective July 14, 1992; 1998, ch. 606, § 66, effective July 15, 1998; 2010, ch. 149, § 11, effective April 13, 2010; 2010, ch. 160, § 11, effective April 26, 2010; 2011, ch. 2, § 13, effective June 8, 2011; 2011, ch. 45, § 10, effective March 16, 2011; 2012, ch. 108, § 10, effective April 11, 2012.

NOTES TO DECISIONS

1.Miranda Warnings.

Although a police detective brusquely threatened to terminate an interview and seek an arrest warrant, defendant was not under arrest and was free to leave; thus, Miranda warnings were not necessary and defendant’s motion to suppress a confession to theft of controlled substances and possession of a controlled substance in violation of KRS 218A.1418(2)(b), KRS 218A.1416 , respectively, was properly denied. Minshall v. Commonwealth, 2003 Ky. App. Unpub. LEXIS 201 (Ky. Ct. App. Apr. 25, 2003).

2.Treatment Program for First-Time Offenders.

Reading KRS 218A.275(9) in accordance with KRS 446.080(1), the provisions of KRS 218A.275(9) apply to a first-time felony possession of cocaine offense under KRS 218A.1415 ; the limitations under KRS 218A.275(1), limiting the treatment program only to convictions under KRS 218A.1416 , 218A.1417 , are not applicable to KRS 218A.275(9). Commonwealth v. Bowles, 107 S.W.3d 912, 2003 Ky. App. LEXIS 132 (Ky. Ct. App. 2003).

Cited:

Morrow v. Commonwealth, 77 S.W.3d 558, 2002 Ky. LEXIS 133 ( Ky. 2002 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part. 2 Schedule Substances, § 9.14.

218A.1417. Possession of controlled substance in third degree — Penalties.

  1. A person is guilty of possession of a controlled substance in the third degree when he or she knowingly and unlawfully possesses a controlled substance classified in Schedules IV or V.
  2. Possession of a controlled substance in the third degree is a Class A misdemeanor.

History. Enact. Acts 1992, ch. 441, § 17, effective July 14, 1992; 2011, ch. 2, § 14, effective June 8, 2011.

NOTES TO DECISIONS

1.Treatment Program for First-Time Offenders.

Reading KRS 218A.275(9) in accordance with KRS 446.080(1), the provisions of KRS 218A.275(9) apply to a first-time felony possession of cocaine offense under KRS 218A.1415 ; the limitations under KRS 218A.275(1), limiting the treatment program only to convictions under KRS 218A.1416 , 218A.1417 , are not applicable to KRS 218A.275(9). Commonwealth v. Bowles, 107 S.W.3d 912, 2003 Ky. App. LEXIS 132 (Ky. Ct. App. 2003).

2.Instructions to Jury.

Defendant was entitled to an innocent possession instruction under KRS 218A.1412 or 218A.220 because he offered evidence that he came into incidental possession of the drugs when he found them in his brother’s driveway, and he attempted to call the sheriff to report them but was arrested before he was able to turn them in. Commonwealth v. Adkins, 331 S.W.3d 260, 2011 Ky. LEXIS 11 ( Ky. 2011 ).

Cited:

Morrow v. Commonwealth, 77 S.W.3d 558, 2002 Ky. LEXIS 133 ( Ky. 2002 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part. 2 Schedule Substances, § 9.16.

218A.1418. Theft of a controlled substance — Not considered theft under KRS Chapter 514. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1998, ch. 301, § 15, effective July 15, 1998; 2011, ch. 2, § 15, effective June 8, 2011) was repealed by Acts 2013, ch. 82, § 2, effective June 25, 2013.

218A.142. Aggravated trafficking in controlled substance in first degree.

  1. A person is guilty of aggravated trafficking in a controlled substance in the first degree when he or she knowingly and unlawfully traffics in:
    1. One hundred (100) grams or more of heroin;
    2. Twenty-eight (28) grams or more of fentanyl; or
    3. Ten (10) grams or more of carfentanil or fentanyl derivatives.
  2. Aggravated trafficking in a controlled substance in the first degree is a Class B felony, and the defendant shall not be released on probation, shock probation, conditional discharge, or parole until he or she has served at least fifty percent (50%) of the sentence imposed.

HISTORY: 2015 ch. 66, § 15, effective March 25, 2015; 2017 ch. 168, § 6, effective June 29, 2017.

218A.1421. Trafficking in marijuana — Penalties.

  1. A person is guilty of trafficking in marijuana when he knowingly and unlawfully traffics in marijuana.
  2. Trafficking in less than eight (8) ounces of marijuana is:
    1. For a first offense a Class A misdemeanor.
    2. For a second or subsequent offense a Class D felony.
  3. Trafficking in eight (8) or more ounces but less than five (5) pounds of marijuana is:
    1. For a first offense a Class D felony.
    2. For a second or subsequent offense a Class C felony.
  4. Trafficking in five (5) or more pounds of marijuana is:
    1. For a first offense a Class C felony.
    2. For a second or subsequent offense a Class B felony.
  5. The unlawful possession by any person of eight (8) or more ounces of marijuana shall be prima facie evidence that the person possessed the marijuana with the intent to sell or transfer it.

History. Enact. Acts 1992, ch. 441, § 18, effective July 14, 1992.

NOTES TO DECISIONS

1.Sentence.
2.— Enhancement.

The language of KRS 218A.010(21) which defines a “second or subsequent offense,” as being one which occurs after any other state or federal law, clearly does not require the underlying prior drug trafficking conviction to be a conviction for trafficking in marijuana in order for it to be relied upon to enhance a subsequent conviction pursuant to subsection (2) of this section. Commonwealth v. Churchwell, 938 S.W.2d 586, 1996 Ky. App. LEXIS 186 (Ky. Ct. App. 1996).

When determining whether a conviction for trafficking in marijuana constitutes a second or subsequent offense for the purposes of subsection (2) of this section, no distinction should be made between prior convictions for trafficking in marijuana and prior convictions for trafficking in other illegal drugs. Commonwealth v. Churchwell, 938 S.W.2d 586, 1996 Ky. App. LEXIS 186 (Ky. Ct. App. 1996).

Because KRS 218A.010(35) did not require that an underlying prior drug trafficking offense be a felony conviction in order for it to enhance a future conviction as a second or subsequent offense, defendant’s prior misdemeanor marijuana trafficking conviction supported the enhancement of his trafficking charge to a second or subsequent offense. Jackson v. Commonwealth, 319 S.W.3d 347, 2010 Ky. LEXIS 218 ( Ky. 2010 ).

3.Search and Seizure.

Though trafficking in marijuana, KRS 218A.1421 , was not an offense related to motor vehicles, defendant was also charged with possession of drugs in a commercial vehicle which is a violation of a federal regulation under 49 C.F.R. § 392.4, as well as state law under KRS 281.600 , which enables the adoption of federal motor carrier safety regulations and declares that violations of those regulations are violations of KRS 281.600 ; therefore, a vehicle enforcement officer had the legal authority to search for controlled substances in defendant’s truck. Meghoo v. Commonwealth, 2004 Ky. App. LEXIS 316 (Ky. Ct. App. Oct. 29, 2004), aff'd, 245 S.W.3d 752, 2008 Ky. LEXIS 31 ( Ky. 2008 ).

In a prosecution for trafficking in marijuana, neither the proximity of a barn to defendant’s home (500 feet away) nor the nature of its use weighed in favor of finding it to be curtilage. Therefore, officers properly conducted a warrantless search of the area around the barn, and evidence obtained after execution of a search warrant was admissible. Phillips v. Commonwealth, 2008 Ky. App. LEXIS 229 (Ky. Ct. App. July 18, 2008).

4.Double Jeopardy.

Separate charges for misdemeanor trafficking, KRS 218A.1421(2)(a), and felony trafficking, KRS 218A.1421(4), were permissible and did not violate double jeopardy where the misdemeanor was based on drugs found on defendant’s person at the time of his arrest, while the felony was based on the significant amount of marijuana found in defendant’s vehicle during a search three (3) days later pursuant to a warrant. Simpson v. Commonwealth, 159 S.W.3d 824, 2005 Ky. App. LEXIS 66 (Ky. Ct. App. 2005).

Where defendant was convicted of cultivation of marijuana, trafficking in marijuana, and possession of marijuana, as he accepted a concurrent sentence, which he did not appeal, he did not receive multiple punishments for the same offense; thus, there was no double jeopardy violation. Phillips v. Commonwealth, 2008 Ky. App. LEXIS 229 (Ky. Ct. App. July 18, 2008).

Conviction of possession of marijuana violated U.S. Const. amend. V and Ky. Const. § 13 because it was a lesser included offense of trafficking in marijuana; even though the jury could have found that roaches were personally used by appellant, the jury instructions did not require the jury to make a distinction between the offenses. As such, it was impossible to determine whether appellant was convicted of possession marijuana and trafficking marijuana based on the same quantity of marijuana. Massie v. Commonwealth, 2012 Ky. App. LEXIS 178 (Ky. Ct. App. Sept. 21, 2012).

5.Sufficiency of Evidence.

Trial court properly denied an defendant’s motion for a directed verdict of acquittal on a charge of trafficking in marijuana where the testimony showed that the defendant had delivered marijuana to coconspirators and instructed others on how to hide the drugs. Brewer v. Commonwealth, 206 S.W.3d 313, 2006 Ky. LEXIS 306 ( Ky. 2006 ).

In a prosecution for trafficking in marijuana, which required proof of only eight ounces of the drug, the trial court properly allowed testimony as to the weight of the marijuana seized without actually weighing the plants. Where a laboratory technician testified that the bags of marijuana in defendant’s home weighed 3.96 ounces and that five samples he specifically tested weighed approximately one ounce in total, the other 69 plants had to have a combined weight of only a little over three ounces to convict. Phillips v. Commonwealth, 2008 Ky. App. LEXIS 229 (Ky. Ct. App. July 18, 2008).

6.Admissibility of Evidence.

In a prosecution for trafficking in marijuana, the government presented sufficient reliable evidence to attribute the full quantity of marijuana seized to defendant, as the samples were properly taken at random, and the remaining samples were visually verified as marijuana. Therefore, testimony that all plants seized were marijuana was properly admitted. Phillips v. Commonwealth, 2008 Ky. App. LEXIS 229 (Ky. Ct. App. July 18, 2008).

In a prosecution for trafficking in marijuana, testimony of police officers as to the approximate weight of marijuana plants when lifted was properly admitted as lay opinion under KRE 701, as it was a rationally based perception helpful to the understanding of a fact in issue. Phillips v. Commonwealth, 2008 Ky. App. LEXIS 229 (Ky. Ct. App. July 18, 2008).

7.Deportation Consequences.

Defendant was entitled to reversal of his conviction, based on a guilty plea, for trafficking in marijuana under KRS 218A.1421 because the ineffective assistance of counsel in failing to advise him of the deportation consequences under 8 U.S.C.S. § 1227(a)(2)(b)(i) was prejudicial as defendant would have insisted on going to trial if properly informed. Padilla v. Commonwealth, 381 S.W.3d 322, 2012 Ky. App. LEXIS 193 (Ky. Ct. App. 2012).

8.Constitutionality.

Political question doctrine did not require dismissal of a petition alleging statutes barring trafficking in or possessing marijuana were unconstitutional because the legislature’s imperative to protect the public health and welfare was constitutionally limited. Seum v. Bevin, 2019 Ky. App. LEXIS 29 (Ky. Ct. App. Mar. 8, 2019), sub. op., 584 S.W.3d 771, 2019 Ky. App. LEXIS 46 (Ky. Ct. App. 2019).

Claims that Ky. Rev. Stat. Ann. §§ 218A.1421 and 218A.1422 were unconstitutional insofar as the statutes criminalized the possession and sale of marijuana for medical purposes did not present nonjusticiable political questions because, while the legislature had the sole imperative to legislate to protect the public health and welfare, the legislature was always constrained by the state and federal constitutions, which no legislation could violate. Seum v. Bevin, 584 S.W.3d 771, 2019 Ky. App. LEXIS 46 (Ky. Ct. App. 2019).

Ky. Rev. Stat. Ann. §§ 218A.1421 and 218A.1422 did not violate Ky. Const. § 2 or the right to privacy insofar as the statutes criminalized the possession and sale of marijuana for medical purposes because the statutes did not criminalize the private possession and sale of marijuana out of misplaced concerns about morality or public decency, as the definition of marijuana implicated the health, safety, and well-being of the citizens of Kentucky. Seum v. Bevin, 584 S.W.3d 771, 2019 Ky. App. LEXIS 46 (Ky. Ct. App. 2019).

Cited:

Coleman v. Commonwealth, 100 S.W.3d 745, 2002 Ky. LEXIS 247 ( Ky. 2002 ), overruled in part, Bratcher v. Commonwealth, 424 S.W.3d 411, 2014 Ky. LEXIS 85 ( Ky. 2014 ); Brewer v. Bottom, — F. Supp. 2d —, 2012 U.S. Dist. LEXIS 15478 (E.D. Ky. 2012 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part. 2 Schedule Substances, §§ 9.17A — 9.18B, 9.20A, 9.20B.

218A.1422. Possession of marijuana — Penalty — Maximum term of incarceration.

  1. A person is guilty of possession of marijuana when he or she knowingly and unlawfully possesses marijuana.
  2. Possession of marijuana is a Class B misdemeanor, except that, KRS Chapter 532 to the contrary notwithstanding, the maximum term of incarceration shall be no greater than forty-five (45) days.

History. Enact. Acts 1992, ch. 441, § 19, effective July 14, 1992; 2011, ch. 2, § 16, effective June 8, 2011.

NOTES TO DECISIONS

1.Jury Instructions.

Trial court erred in refusing to instruct the jury on possession of marijuana as a lesser included offense of cultivation of marijuana; the jury could reasonably have believed that the plants were grown for defendant’s own consumption as he admitted that he was a longtime, heavy marijuana user. The presumption that the cultivation of more than five plants was prima facie evidence of intent to sell or transfer served only to satisfy the Commonwealth’s burden of proof sufficiently to avoid a directed verdict of acquittal. Swift v. Commonwealth, 2005 Ky. App. LEXIS 285 (Ky. Ct. App.), sub. op., 2005 Ky. App. Unpub. LEXIS 923 (Ky. Ct. App. July 29, 2005), aff'd, 237 S.W.3d 193, 2007 Ky. LEXIS 202 ( Ky. 2007 ).

Where police saw, though an open door, packages of marijuana in defendant’s home, exigent circumstances justified their warrantless entry into the home to prevent the imminent destruction of evidence. The fact that possession of marijuana in violation of KRS 218A.1422 was a misdemeanor was immaterial, as defendant faced up to one year’s imprisonment if convicted. Posey v. Commonwealth, 185 S.W.3d 170, Ky. LEXIS 53 (Ky.), cert. denied, 549 U.S. 842, 127 S. Ct. 85, 166 L. Ed. 2d 73, 2006 U.S. LEXIS 6540 (U.S. 2006).

Because defendant testified that, although he knew of marijuana plants on his property, he did not put them there and was indifferent to their existence, there was evidence under a constructive possession theory from which a juror could have had a reasonable doubt that defendant knowingly and unlawfully planted, cultivated, or harvested marijuana with the intent to sell or transfer it as required under KRS 218A.1423 , while believing beyond a reasonable doubt that defendant knowingly and unlawfully possessed marijuana in violation of KRS 218A.1422 ; thus, it was improper for the trial court to refuse to give a lesser-included offense instruction on possession of marijuana. Commonwealth v. Swift, 237 S.W.3d 193, 2007 Ky. LEXIS 202 ( Ky. 2007 ).

2.Double Jeopardy.

Where defendant was convicted of cultivation of marijuana, trafficking in marijuana, and possession of marijuana, as he accepted a concurrent sentence, which he did not appeal, he did not receive multiple punishments for the same offense; thus, there was no double jeopardy violation. Phillips v. Commonwealth, 2008 Ky. App. LEXIS 229 (Ky. Ct. App. July 18, 2008).

Conviction of possession of marijuana violated U.S. Const. amend. V and Ky. Const. § 13 because it was a lesser included offense of trafficking in marijuana; even though the jury could have found that roaches were personally used by appellant, the jury instructions did not require the jury to make a distinction between the offenses. As such, it was impossible to determine whether appellant was convicted of possession marijuana and trafficking marijuana based on the same quantity of marijuana. Massie v. Commonwealth, 2012 Ky. App. LEXIS 178 (Ky. Ct. App. Sept. 21, 2012).

3.Constitutionality.

Political question doctrine did not require dismissal of a petition alleging statutes barring trafficking in or possessing marijuana were unconstitutional because the legislature’s imperative to protect the public health and welfare was constitutionally limited. Seum v. Bevin, 2019 Ky. App. LEXIS 29 (Ky. Ct. App. Mar. 8, 2019), sub. op., 584 S.W.3d 771, 2019 Ky. App. LEXIS 46 (Ky. Ct. App. 2019).

Claims that Ky. Rev. Stat. Ann. §§ 218A.1421 and 218A.1422 were unconstitutional insofar as the statutes criminalized the possession and sale of marijuana for medical purposes did not present nonjusticiable political questions because, while the legislature had the sole imperative to legislate to protect the public health and welfare, the legislature was always constrained by the state and federal constitutions, which no legislation could violate. Seum v. Bevin, 584 S.W.3d 771, 2019 Ky. App. LEXIS 46 (Ky. Ct. App. 2019).

Ky. Rev. Stat. Ann. §§ 218A.1421 and 218A.1422 did not violate Ky. Const. § 2 or the right to privacy insofar as the statutes criminalized the possession and sale of marijuana for medical purposes because the statutes did not criminalize the private possession and sale of marijuana out of misplaced concerns about morality or public decency, as the definition of marijuana implicated the health, safety, and well-being of the citizens of Kentucky. Seum v. Bevin, 584 S.W.3d 771, 2019 Ky. App. LEXIS 46 (Ky. Ct. App. 2019).

Cited:

Darden v. Commonwealth, 52 S.W.3d 574, 2001 Ky. LEXIS 135 ( Ky. 2001 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part. 2 Schedule Substances, § 9.21.

218A.1423. Marijuana cultivation — Penalties.

  1. A person is guilty of marijuana cultivation when he knowingly and unlawfully plants, cultivates, or harvests marijuana with the intent to sell or transfer it.
  2. Marijuana cultivation of five (5) or more plants of marijuana is:
    1. For a first offense a Class D felony.
    2. For a second or subsequent offense a Class C felony.
  3. Marijuana cultivation of fewer than five (5) plants is:
    1. For a first offense a Class A misdemeanor.
    2. For a second or subsequent offense a Class D felony.
  4. The planting, cultivating, or harvesting of five (5) or more marijuana plants shall be prima facie evidence that the marijuana plants were planted, cultivated, or harvested for the purpose of sale or transfer.

History. Enact. Acts 1992, ch. 441, § 20, effective July 14, 1992.

NOTES TO DECISIONS

1.Defenses.

In a prosecution for marijuana cultivation, the trial court properly refused to instruct the jury with regard to the choice of evils defense where the defendant asserted that he cultivated and smoked marijuana as a treatment for depression and to alleviate his pain from headaches, but there was no showing that an injury was imminent or that there were no reasonable alternatives to cultivating marijuana as a means of medical treatment for such physical ailments. Peak v. Commonwealth, 34 S.W.3d 80, 2000 Ky. App. LEXIS 149 (Ky. Ct. App. 2000), overruled in part, LaPradd v. Commonwealth, 334 S.W.3d 88, 2011 Ky. LEXIS 41 ( Ky. 2011 ).

Medical necessity is not a defense in a prosecution for a violation of the statute. Peak v. Commonwealth, 34 S.W.3d 80, 2000 Ky. App. LEXIS 149 (Ky. Ct. App. 2000), overruled in part, LaPradd v. Commonwealth, 334 S.W.3d 88, 2011 Ky. LEXIS 41 ( Ky. 2011 ).

2.Lessor Included Offenses.

Trial court erred in refusing to instruct the jury on possession of marijuana as a lesser included offense of cultivation of marijuana; the jury could reasonably have believed that the plants were grown for defendant’s own consumption as he admitted that he was a longtime, heavy marijuana user. The presumption that the cultivation of more than five plants was prima facie evidence of intent to sell or transfer served only to satisfy the Commonwealth’s burden of proof sufficiently to avoid a directed verdict of acquittal. Swift v. Commonwealth, 2005 Ky. App. LEXIS 285 (Ky. Ct. App.), sub. op., 2005 Ky. App. Unpub. LEXIS 923 (Ky. Ct. App. July 29, 2005), aff'd, 237 S.W.3d 193, 2007 Ky. LEXIS 202 ( Ky. 2007 ).

Because defendant testified that, although he knew of marijuana plants on his property, he did not put them there and was indifferent to their existence, there was evidence under a constructive possession theory from which a juror could have had a reasonable doubt that defendant knowingly and unlawfully planted, cultivated, or harvested marijuana with the intent to sell or transfer it as required under KRS 218A.1423 , while believing beyond a reasonable doubt that defendant knowingly and unlawfully possessed marijuana in violation of KRS 218A.1422 ; thus, it was improper for the trial court to refuse to give a lesser-included offense instruction on possession of marijuana. Commonwealth v. Swift, 237 S.W.3d 193, 2007 Ky. LEXIS 202 ( Ky. 2007 ).

3.Double Jeopardy.

Where defendant was convicted of cultivation of marijuana, trafficking in marijuana, and possession of marijuana, as he accepted a concurrent sentence, which he did not appeal, he did not receive multiple punishments for the same offense; thus, there was no double jeopardy violation. Phillips v. Commonwealth, 2008 Ky. App. LEXIS 229 (Ky. Ct. App. July 18, 2008).

4.Search and Seizure.

In a prosecution for cultivatiing marijuana, neither the proximity of a barn to defendant’s home (500 feet away) nor the nature of its use weighed in favor of finding it to be curtilage. Therefore, officers properly conducted a warrantless search of the area around the barn, and evidence obtained after execution of a search warrant was admissible. Phillips v. Commonwealth, 2008 Ky. App. LEXIS 229 (Ky. Ct. App. July 18, 2008).

5.Evidence.

In a prosecution for cultivating marijuana, the government presented sufficient reliable evidence to attribute the full quantity of marijuana seized to defendant, as the samples were properly taken at random, and the remaining samples were visually verified as marijuana. Therefore, testimony that all plants seized were marijuana was properly admitted. Phillips v. Commonwealth, 2008 Ky. App. LEXIS 229 (Ky. Ct. App. July 18, 2008).

In a prosecution for cultivating marijuana, testimony of police officers as to the approximate weight of marijuana plants when lifted was properly admitted as lay opinion under KRE 701, as it was a rationally based perception helpful to the understanding of a fact in issue. Phillips v. Commonwealth, 2008 Ky. App. LEXIS 229 (Ky. Ct. App. July 18, 2008).

Cited:

Morrow v. Commonwealth, 77 S.W.3d 558, 2002 Ky. LEXIS 133 ( Ky. 2002 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part. 2 Schedule Substances, §§ 9.22, 9.23.

218A.1426. Trafficking in synthetic cannabinoid agonists or piperazines — Penalty. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 2010, ch. 149, § 1, effective April 13, 2010) was repealed by Acts 2012, ch. 108, § 17, effective April 11, 2012.

218A.1427. Possession of synthetic cannabinoid agonists or piperazines — Penalty — Maximum term of incarceration. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 2010, ch. 149, § 2, effective April 13, 2010; 2011, ch. 2, § 17, effective June 8, 2011) was repealed by Acts 2012, ch. 108, § 17, effective April 11, 2012.

218A.1428. Manufacture of synthetic cannabinoid agonists or piperazines — Penalty. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 2010, ch. 149, § 3, effective April 13, 2010) was repealed by Acts 2012, ch. 108, § 17, effective April 11, 2012.

218A.1430. Trafficking in synthetic drugs — Penalties — Affirmative defense — Possession of synthetic drugs — Penalties.

    1. A person is guilty of trafficking in synthetic drugs when he or she knowingly and unlawfully traffics in synthetic drugs. (1) (a) A person is guilty of trafficking in synthetic drugs when he or she knowingly and unlawfully traffics in synthetic drugs.
    2. Trafficking in synthetic drugs is a Class D felony for the first offense and a Class C felony for each subsequent offense.
    3. In lieu of the fine amounts otherwise allowed under KRS Chapter 534, for any offense under this subsection the court may impose a maximum fine of double the defendant’s gain from the commission of the offense, in which case any fine money collected shall be divided between the same parties, in the same ratio, and for the same purposes as established for forfeited property under KRS 218A.420 .
    4. It shall be an affirmative defense to an offense under this subsection that the defendant committed the offense during the course of the defendant’s employment as an employee of a retail store and that the defendant did not know and should not have known that the trafficked substance was a synthetic drug.
    1. A person is guilty of possession of synthetic drugs when he or she knowingly and unlawfully possesses synthetic drugs. (2) (a) A person is guilty of possession of synthetic drugs when he or she knowingly and unlawfully possesses synthetic drugs.
    2. Possession of synthetic drugs is:
      1. A Class A misdemeanor for the first offense; and
      2. A Class D felony for each subsequent offense.

History. Enact. Acts 2012, ch. 108, § 1, effective April 11, 2012; 2016 ch. 135, § 9, effective April 27, 2016.

218A.1431. Definitions for KRS 218A.1431 to 218A.1438 and KRS 218A.141.

As used in KRS 218A.1431 to 218A.1438 and KRS 218A.141 , the following definitions apply:

  1. “Manufacture” means the production, preparation, propagation, compounding, conversion, or processing of methamphetamine, or possession with intent to manufacture, either directly or indirectly by extraction from substances of natural origin or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, except that this term does not include activities:
    1. By a practitioner incident to administering or dispensing of a controlled substance in the course of his professional practice; or
    2. By a practitioner, or by his authorized agent under his supervision, for the purpose of, or incident to, research, teaching, or chemical analysis; or
    3. By a pharmacist incident to dispensing of a controlled substance in the course of his professional practice.
  2. “Methamphetamine” means any substance that contains any quantity of methamphetamine, including its salts, isomers, and salts of isomers.
  3. “Traffic” means to distribute, dispense, sell, transfer, or possess with intent to distribute, dispense, or sell methamphetamine.

History. Enact. Acts 1998, ch. 606, § 58, effective July 15, 1998; 2005, ch. 150, § 13, effective June 20, 2005.

NOTES TO DECISIONS

1.Manufacture.

Evidence was sufficient to support a conviction under KRS 218A.1432(1)(a), because KRS 218A.1431(1) defines “manufacture” as “the production, preparation, propagation, compounding, conversion, or processing of methamphetamine,” and the operation of defendant’s homemade generator that was separating the methamphetamine residue from the used coffee filters satisfied the “processing” aspect of this definition. Fulcher v. Commonwealth, 149 S.W.3d 363, 2004 Ky. LEXIS 274 ( Ky. 2004 ), overruled in part, Ballinger v. Commonwealth, 459 S.W.3d 349, 2015 Ky. LEXIS 1611 ( Ky. 2015 ).

Defendant’s double jeopardy rights were not violated when defendant was convicted of both manufacturing methamphetamine and trafficking in methamphetamine, as the two crimes were separate offenses, especially considering a review of statutory law such as KRS 218A.1431 , which did not include a description of manufacturing in the definition of “trafficking.” Brooks v. Commonwealth, 217 S.W.3d 219, 2007 Ky. LEXIS 65 ( Ky. 2007 ).

Cited:

Beaty v. Commonwealth, 125 S.W.3d 196, 2003 Ky. LEXIS 232 ( Ky. 2003 ), rehearing denied, 2004 Ky. LEXIS 53 ( Ky. 2004 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part. 1 Definitions, § 9.09B.

218A.1432. Manufacturing methamphetamine — Penalties.

  1. A person is guilty of manufacturing methamphetamine when he knowingly and unlawfully:
    1. Manufactures methamphetamine; or
    2. With intent to manufacture methamphetamine possesses two (2) or more chemicals or two (2) or more items of equipment for the manufacture of methamphetamine.
  2. Manufacture of methamphetamine is a Class B felony for the first offense and a Class A felony for a second or subsequent offense.

History. Enact. Acts 1998, ch. 606, § 59, effective July 15, 1998; 2005, ch. 150, § 9, effective June 20, 2005.

NOTES TO DECISIONS

Analysis

1.Constitutionality.

Statute could not be attacked on the ground that it was overbroad as attempting to regulate constitutionally permissible conduct as there was no constitutional right to possess chemicals or equipment with the intent of using such to manufacture methamphetamine. Commonwealth v. Arndell, 2001 Ky. App. LEXIS 1164 (Ky. Ct. App. Nov. 16, 2001), vacated, 2003 Ky. LEXIS 239 (Ky. Oct. 15, 2003).

Trial court did not err in refusing to declare the methamphetamine manufacturing statute unconstitutional as the statute was not void for vagueness as an ordinary person would know what conduct was prohibited. “Intent” under the statute could not be presumed from the mere possession of otherwise legal products as the statute required circumstances showing more than mere possession of legal chemicals to show an intent to manufacture methamphetamine. Kotila v. Commonwealth, 2002 Ky. LEXIS 241 (Ky. Dec. 19, 2002).

KRS 218A.1432(1)(b) is not unconstitutionally vague. Matheney v. Commonwealth, 191 S.W.3d 599, 2006 Ky. LEXIS 66 ( Ky. 2006 ), cert. denied, 549 U.S. 1057, 127 S. Ct. 667, 166 L. Ed. 2d 522, 2006 U.S. LEXIS 9094 (U.S. 2006).

2.Purpose.

Language of KRS 218A.1432(1)(b) is clear that the requisite intent is intent to manufacture methamphetamine, not intent that the chemicals and/or equipment be used by someone else in the manufacture of methamphetamine. Matheney v. Commonwealth, 191 S.W.3d 599, 2006 Ky. LEXIS 66 ( Ky. 2006 ), cert. denied, 549 U.S. 1057, 127 S. Ct. 667, 166 L. Ed. 2d 522, 2006 U.S. LEXIS 9094 (U.S. 2006).

3.Evidence.

In a case involving a borrowed vehicle with a methamphetamine laboratory in the back seat, defendant was not entitled to a directed verdict of acquittal because the evidence was sufficient to infer his knowledge of the methamphetamine laboratory, which had a strong odor. Beaty v. Commonwealth, 125 S.W.3d 196, 2003 Ky. LEXIS 232 ( Ky. 2003 ).

Evidence consisting of five (5) glass jars containing a solid residue of methamphetamine, a glass jar containing methamphetamine oil, and testimony from a number of witnesses that either put defendant in possession of some of the chemicals and equipment necessary to manufacture methamphetamine or explained how he obtained possession of these items, was sufficient evidence to convict him of actually manufacturing methamphetamine. Johnson v. Commonwealth, 134 S.W.3d 563, 2004 Ky. LEXIS 110 ( Ky. 2004 ).

Where defendant’s vehicle contained all of the necessary ingredients, except for anhydrous ammonia, with which to manufacture methamphetamine, and the evidence showed he was in constructive possession of a tank of anhydrous ammonia that he stored at a neighbor’s home, the evidence sufficiently proved defendant possessed ammonia at same time that he possessed the other methamphetamine precursors — i.e., that he possessed all chemicals needed to make methamphetamine. Pate v. Commonwealth, 134 S.W.3d 593, 2004 Ky. LEXIS 115 ( Ky. 2004 ).

Despite the fact that the initial charge against defendant was for possession of only one ingredient necessary for the manufacture of methamphetamine, anhydrous ammonia, where the post-arrest complaint said that defendant had in his possession all the precursors to manufacture methamphetamine, where a considerable quantity of the pseudophedrine tablets was crushed, and where the complaint also stated that defendant admitted to making methamphetamine, defendant’s conduct could have met the elements for criminal attempt to manufacture methamphetamine; thus, defendant’s motion to withdraw his guilty plea to criminal attempt to manufacture methamphetamine was properly denied. Elkins v. Commonwealth, 154 S.W.3d 298, 2004 Ky. App. LEXIS 275 (Ky. Ct. App. 2004).

Pharmacy manager’s testimony that the manager recognized defendant as having purchased two boxes of cold medicine two weeks earlier showed defendant’s intent to manufacture methamphetamine, thus it was admissible under the exception in KRE 404(b)(1). Matheney v. Commonwealth, 191 S.W.3d 599, 2006 Ky. LEXIS 66 ( Ky. 2006 ), cert. denied, 549 U.S. 1057, 127 S. Ct. 667, 166 L. Ed. 2d 522, 2006 U.S. LEXIS 9094 (U.S. 2006).

Language in KRS 218.1432(1)(b) that “the chemicals or equipment for the manufacture of methamphetamine” means that one must possess two or more chemicals or items of equipment with the intent to manufacture methamphetamine to fall within the statute. Of course, any conviction must also satisfy the scienter requirement contained in KRS 218A.1432(1)(b). Matheney v. Commonwealth, 191 S.W.3d 599, 2006 Ky. LEXIS 66 ( Ky. 2006 ), cert. denied, 549 U.S. 1057, 127 S. Ct. 667, 166 L. Ed. 2d 522, 2006 U.S. LEXIS 9094 (U.S. 2006).

Where defendant claimed that the equipment found in his apartment was nothing more than common household items, evidence of his prior possession of equipment and chemicals necessary to manufacture methamphetamine was relevant to prove his intent and knowledge regarding methamphetamine manufacture. Therefore, pursuant to KRE 403, the probative value of this prior bad acts evidence outweighed its prejudicial effect. Pate v. Commonwealth, 243 S.W.3d 327, 2007 Ky. LEXIS 232 ( Ky. 2007 ), modified, 2007 Ky. LEXIS 289 (Ky. Nov. 1, 2007).

Where defendant’s wife denied entering into an agreement to manufacture methamphetamine with defendant, but agreed to plead guilty to facilitation in exchange for her testimony against him, since her testimony showed she was well-versed about methamphetamine manufacturing in general, there was sufficient evidence that she and defendant acted jointly in the manufacturing of methamphetamine; therefore, pursuant to KRE 504(c)(1), the marital privilege did not apply to exclude her testimony. Pate v. Commonwealth, 243 S.W.3d 327, 2007 Ky. LEXIS 232 ( Ky. 2007 ), modified, 2007 Ky. LEXIS 289 (Ky. Nov. 1, 2007).

In investigating a stolen vehicle registration plate allegedly belonging to defendant’s mother, because exigent circumstances existed when law enforcement found an active methamphetamine lab in the trunk of the car which had the stolen license plate affixed to it, suppression of the lab was properly denied. Bishop v. Commonwealth, 237 S.W.3d 567, 2007 Ky. App. LEXIS 365 (Ky. Ct. App. 2007).

Since the issuance of a search warrant that was based on information from two confidential informants was independent of an illegal forced entry into defendant’s premises, the warrant was valid and items seized thereunder were not subject to suppression under the exclusionary rule of U.S. Const. amend. IV, where the affidavit in support of the search warrant indicated that the informants delivered items to defendant’s premises that were used in the manufacture of methamphetamine. Horn v. Commonwealth, 240 S.W.3d 665, 2007 Ky. App. LEXIS 430 (Ky. Ct. App. 2007).

Circuit court did not err in denying defendant's motion in limine, nor granting the Commonwealth's motion to use photographs of the destroyed evidence during a second trial for manufacturing methamphetamine because defendant did not establish that the now-unavailable evidence was exculpatory or intentionally destroyed where it destroyed after defendant's conviction, had no potential exculpatory value, the police found a significant collection of items in defendant's home commonly related to the manufacture of methamphetamine, and the statute at issue did not require the government to show the presence of methamphetamine or other chemical residue on the items to prove its case. Anderson v. Commonwealth, 2017 Ky. App. LEXIS 666 (Ky. Ct. App., sub. op., 2017 Ky. App. Unpub. LEXIS 941 (Ky. Ct. App. Nov. 3, 2017).

4.Double Jeopardy.

Convictions for manufacturing methamphetamine in violation of KRS 218A.1432(1)(a) and possession of methamphetamine in violation of KRS 218A.1415(1) constituted double jeopardy; one who manufactures a controlled substance also necessarily possesses the substance in the course of manufacturing it. Beaty v. Commonwealth, 125 S.W.3d 196, 2003 Ky. LEXIS 232 ( Ky. 2003 ).

As the Commonwealth’s evidence did not show defendant possessed any methamphetamine other than that found in glass jars he used in the manufacturing process, he was convicted of possessing the same methamphetamine that he was convicted of manufacturing, which violated his constitutional right to be free of double jeopardy. Johnson v. Commonwealth, 134 S.W.3d 563, 2004 Ky. LEXIS 110 ( Ky. 2004 ).

Where one conviction was for the present or past use of the paraphernalia to manufacture methamphetamine, KRS 218A.1432(1)(a), and the other conviction was for an intent to use the paraphernalia in the future to manufacture additional methamphetamine, KRS 218A.500(2), each offense required proof of an element that the other did not and no double jeopardy violation occurred. Fulcher v. Commonwealth, 149 S.W.3d 363, 2004 Ky. LEXIS 274 ( Ky. 2004 ), overruled in part, Ballinger v. Commonwealth, 459 S.W.3d 349, 2015 Ky. LEXIS 1611 ( Ky. 2015 ).

Defendant’s convictions for manufacturing methamphetamine and trafficking in methamphetamine did not violate defendant’s double jeopardy rights pursuant to Ky. Const. § 13 and U.S. Const. amend. V; defendant’s double jeopardy rights were not violated because the crimes of manufacturing methamphetamine and trafficking in methamphetamine were separate offenses and, thus, there were not two convictions for the same offense. Brooks v. Commonwealth, 217 S.W.3d 219, 2007 Ky. LEXIS 65 ( Ky. 2007 ).

Defendant’s convictions for manufacturing methamphetamine under KRS 218A.1432(1)(a) and possession of a methamphetamine precursor under KRS 218A.1437(1) did not violate double jeopardy because, to be guilty of the former offense, one must have actually manufactured some quantity of methamphetamine, while to be guilty of the latter offense, one must have the precursor necessary to produce methamphetamine and the intent to use it to produce the drug in the future. Thus, the unique element between the two offenses was whether defendant had manufactured methamphetamine in the past or whether he had the materials and intent to produce it in the future; as such, defendant’s convictions did not violate the prohibition against double jeopardy under the Blockburger rule or KRS 505.020(1). Shemwell v. Commonwealth, 294 S.W.3d 430, 2009 Ky. LEXIS 181 ( Ky. 2009 ).

Defendant’s convictions for manufacturing methamphetamine under KRS 218A.1432(1)(a) and anhydrous ammonia in an unapproved container with the intent to manufacture methamphetamine under KRS 250.489(1) did not violate double jeopardy because the former made no mention of anhydrous ammonia or what constituted a proper container for it; thus, on its face there was proof of an element required for a conviction of the latter offense that was not required for a conviction of the former. Further, while manufacturing methamphetamine required that the defendant acted in the past, proving that the defendant possessed the anhydrous ammonia in an unapproved container with the intent to manufacture methamphetamine in the future required proving how the defendant was going to act; thus, the two crimes did not constitute a “continuing course of conduct” and did not violate double jeopardy. Shemwell v. Commonwealth, 294 S.W.3d 430, 2009 Ky. LEXIS 181 ( Ky. 2009 ).

Defendant’s conviction for conspiracy to manufacture methamphetamine obtained in the second forum county had to be vacated, as defendant earlier had been convicted in the first forum county for attempted manufacturing of methamphetamine after being indicted under the same statutes, KRS 218A.1432 and KRS 502.020 . As a result, the second conviction violated double jeopardy principles not only under Ky. Const. § 13, but also the codification of double jeopardy principles, KRS 505.030 . Beeler v. Commonwealth, 2011 Ky. App. LEXIS 39 (Ky. Ct. App., sub. op., 2011 Ky. App. Unpub. LEXIS 991 (Ky. Ct. App. Mar. 4, 2011).

5.Conviction Void.

Trial court’s denial of defendant’s motion in limine which requested defendant be allowed to voir dire prospective jurors as to whether they could consider the full range of penalties for each charged offense, i. e. 10 to 20 years for manufacturing methamphetamine, KRS 218A.1432(2), KRS 532.060(2)(b), and 1 to 5 years for possession of a controlled substance in the first degree, KRS 218A.1415(2)(a), KRS 532.060(2)(d), was erroneous as defendant was denied the right to determine whether each prospective juror was qualified to serve on the jury. The error was not harmless, as the jurors did not impose the minimum sentence allowable for either conviction. Varble v. Commonwealth, 125 S.W.3d 246, 2004 Ky. LEXIS 9 ( Ky. 2004 ).

6.Punishment.

Maximum penalty of 20 years was not a cruel punishment for establishing what amounted to a laboratory designed for the manufacture of an illegal and addictive drug. Varble v. Commonwealth, 125 S.W.3d 246, 2004 Ky. LEXIS 9 ( Ky. 2004 ).

7.Sufficiency of Evidence.

Where police discovered a series of items used in the manufacture, ingestion, or sale of methamphetamine in defendant’s residence and on his person, there was sufficient evidence to convict him of manufacturing methamphetamine as there was no requirement that the chemicals and equipment be possessed simultaneously. Varble v. Commonwealth, 125 S.W.3d 246, 2004 Ky. LEXIS 9 ( Ky. 2004 ).

There was insufficient evidence to convict defendant of manufacturing methamphetamine under KRS 218A.1432(1)(b), because he did not possess all of the chemicals or all of the equipment needed for the manufacture of methamphetamine. Even assuming that the presence of “pill dough” was circumstantial evidence that he had possessed ephedrine or pseudoephedrine, the search team did not find any sodium metal or lithium, chemicals necessary for the manufacture of methamphetamine; further the team did not find any mixing bowls, a stirring device, such as a wooden or plastic spoon, or any pliers, vice grips, or similar device necessary to extract lithium from lithium batteries, equipment necessary for the manufacture of methamphetamine. Fulcher v. Commonwealth, 149 S.W.3d 363, 2004 Ky. LEXIS 274 ( Ky. 2004 ), overruled in part, Ballinger v. Commonwealth, 459 S.W.3d 349, 2015 Ky. LEXIS 1611 ( Ky. 2015 ).

Items recovered during a search of defendant’s residence were insufficient to support a conviction of manufacturing methamphetamine under KRS 218A.1432(1)(b). The officers did not find any evidence of the presence of ephedrine or pseudoephedrine, or denatured alcohol; thus defendant did not possess all of the chemicals necessary to manufacture methamphetamine, nor was he in possession of all of the equipment necessary to manufacture methamphetamine because specifically, the officers did not find a blender (or even a hammer), a mixing bowl, a heat-resistant bowl, a funnel, a wooden or plastic spoon, or a pair of pliers or vice grips. Fulcher v. Commonwealth, 149 S.W.3d 363, 2004 Ky. LEXIS 274 ( Ky. 2004 ), overruled in part, Ballinger v. Commonwealth, 459 S.W.3d 349, 2015 Ky. LEXIS 1611 ( Ky. 2015 ).

Evidence was sufficient to support a conviction under KRS 218A.1432(1)(a), because KRS 218A.1431(1) defines “manufacture” as “the production, preparation, propagation, compounding, conversion, or processing of methamphetamine,” and the operation of defendant’s homemade generator that was separating the methamphetamine residue from the used coffee filters satisfied the “processing” aspect of this definition. Fulcher v. Commonwealth, 149 S.W.3d 363, 2004 Ky. LEXIS 274 ( Ky. 2004 ), overruled in part, Ballinger v. Commonwealth, 459 S.W.3d 349, 2015 Ky. LEXIS 1611 ( Ky. 2015 ).

Evidence was sufficient to support a conviction under KRS 218A.1432(1)(a). In addition to finding a glass jar containing liquid that tested positive for methamphetamine, indicating that methamphetamine had, indeed, been recently manufactured, the officers found glass containers and plastic dishwashing liquid bottles that were still “smoking,” indicating that the manufacturing process had been taking place almost immediately before the officers entered the residence. Fulcher v. Commonwealth, 149 S.W.3d 363, 2004 Ky. LEXIS 274 ( Ky. 2004 ), overruled in part, Ballinger v. Commonwealth, 459 S.W.3d 349, 2015 Ky. LEXIS 1611 ( Ky. 2015 ).

Less culpable of two (2) codefendants had convictions vacated because of insufficient evidence of manufacturing methamphetamine under KRS 218A.1432 , which was firearm enhanced under KRS 218A.992 , possession of anhydrous ammonia in an unapproved container with intent to manufacture methamphetamine under KRS 250.489(1), 250.991(2), and receiving stolen property valued at $300 or more, KRS 514.110(1), (3). That defendant, however, was to be retried for possession of drug paraphernalia, subsequent offense, under KRS 218A.500(2),(5). Hayes v. Commonwealth, 175 S.W.3d 574, 2005 Ky. LEXIS 332 ( Ky. 2005 ).

The holding in Kotila v. Commonwealth, 114 S.W.3d 226, 2003 Ky. LEXIS 127 ( Ky. 2004 ), that construed KRS 218A.1432(1)(b) as requiring defendant to possess all the chemicals necessary to manufacture methamphetamine in order to be convicted of attempted manufacturing, was incorrect. Matheney v. Commonwealth, 191 S.W.3d 599, 2006 Ky. LEXIS 66 ( Ky. 2006 ), cert. denied, 549 U.S. 1057, 127 S. Ct. 667, 166 L. Ed. 2d 522, 2006 U.S. LEXIS 9094 (U.S. 2006).

Since KRS 218A.1432(1)(b) is not unconstitutionally vague, defendant’s conviction for manufacturing methamphetamine was affirmed where 396 cold and allergy pills containing ephedrine or pseudoephedrine, a gallon of Liquid Fire and three cans of Pyro were found in defendant’s trunk. Matheney v. Commonwealth, 191 S.W.3d 599, 2006 Ky. LEXIS 66 ( Ky. 2006 ), cert. denied, 549 U.S. 1057, 127 S. Ct. 667, 166 L. Ed. 2d 522, 2006 U.S. LEXIS 9094 (U.S. 2006).

Since KRS 218A.1432 (1)(b) required that defendant possess two or more chemicals or items of equipment with the intent to manufacture methamphetamine, the fact that police found only equipment for manufacturing the drug but not any materials did not preclude defendant’s conviction for violating KRS 218A.1432 . Pate v. Commonwealth, 243 S.W.3d 327, 2007 Ky. LEXIS 232 ( Ky. 2007 ), modified, 2007 Ky. LEXIS 289 (Ky. Nov. 1, 2007).

Testimony by defendant’s wife that defendant lived in the apartment where equipment used to manufacture methamphetamine was found, evidence that defendant’s clothing and legal documents were located in the apartment, and his statement to police that the equipment they were seizing was his and that they were seizing it illegally, was sufficient evidence to prove that he possessed the equipment found in the apartment. Pate v. Commonwealth, 243 S.W.3d 327, 2007 Ky. LEXIS 232 ( Ky. 2007 ), modified, 2007 Ky. LEXIS 289 (Ky. Nov. 1, 2007).

Evidence supported defendant’s conviction for complicity to manufacture methamphetamine under KRS 218A.1432 and 502.020 as: (1) defendant climbed out a window of a trailer and attempted to flee when officers arrived; (2) defendant was unseasonably dressed when defendant was apprehended; (3) there was a strong odor of ammonia on the clothes of defendant; (4) defendant and codefendant led the officers to believe the trailer was defendant’s home; and (5) the written consent form defendant signed allowing officers to search the trailer clearly indicated defendant was giving the officers consent to search the home of defendant. Cantrell v. Commonwealth, 288 S.W.3d 291, 2009 Ky. LEXIS 162 ( Ky. 2009 ).

Trial court did not err by denying a directed verdict for manufacturing methamphetamine under KRS 218A.1432(1)(b) because a detective testified that: (1) he found four plastic bottles at the scene, three that were inactive methamphetamine labs and one that was an HCL generator used to cook methamphetamine; (2) three of the bottles tested positive for ammonia; (3) he also found rock salt, plastic tubing, a measuring cup, a spoon, a funnel, and lighter fluid in the vehicle, all of which were commonly used in cooking methamphetamine. Chavies v. Commonwealth, 354 S.W.3d 103, 2011 Ky. LEXIS 161 ( Ky. 2011 ).

8.Jury Instructions.

In a prosecution for manufacturing methamphetamine, the trial court properly refused to instruct the jury on facilitation to manufacture methamphetamine under KRS 506.080 , as (1) there was no evidence that anyone else manufactured methamphetamine in defendant’s house or on his property, (2) there was no evidence that anyone other than defendant had possession of or obtained the chemicals used to manufacture methamphetamine, and (3) defendant never testified that he knew that others were manufacturing methamphetamine in his house, and such knowledge was an essential element of facilitation. Johnson v. Commonwealth, 134 S.W.3d 563, 2004 Ky. LEXIS 110 ( Ky. 2004 ).

Jury instructions improperly permitted convictions under KRS 218A.1432(1)(b) if the jury believed that defendant possessed any, i.e., one or more, of the chemicals or equipment used in the manufacture of methamphetamine with the intent to manufacture methamphetamine. Fulcher v. Commonwealth, 149 S.W.3d 363, 2004 Ky. LEXIS 274 ( Ky. 2004 ), overruled in part, Ballinger v. Commonwealth, 459 S.W.3d 349, 2015 Ky. LEXIS 1611 ( Ky. 2015 ).

Where jury instructions were worded in the alternative, i.e., “he manufactured methamphetamine or possessed starting fluid, etc.,” the instruction deprived defendant of his right to a unanimous verdict with respect to separate charges of manufacturing methamphetamine under KRS 218A.1432(1)(a) and KRS 218A.1432(1)(b). With respect to each charge, the jury simply found defendant guilty of manufacturing methamphetamine without identifying the theory under which guilt was found; thus defendant was entitled to a new trial on the charges of manufacturing methamphetamine in violation of KRS 218A.1432(1)(a). Fulcher v. Commonwealth, 149 S.W.3d 363, 2004 Ky. LEXIS 274 ( Ky. 2004 ), overruled in part, Ballinger v. Commonwealth, 459 S.W.3d 349, 2015 Ky. LEXIS 1611 ( Ky. 2015 ).

Guilt phase instructions to jury for the offense of manufacturing methamphetamine were erroneous because they did not include the required culpable mental state of “knowingly.” Fulcher v. Commonwealth, 149 S.W.3d 363, 2004 Ky. LEXIS 274 ( Ky. 2004 ), overruled in part, Ballinger v. Commonwealth, 459 S.W.3d 349, 2015 Ky. LEXIS 1611 ( Ky. 2015 ).

Where the trial court instructed the jury that defendant could be convicted of manufacturing methamphetamine if it either found he actually manufactured it or that he possessed the chemicals and equipment to do so, as there was sufficient evidence to convict him of actually manufacturing the drug, this instruction did not violate his right to a unanimous verdict; if he had manufactured the drug, he necessarily possessed the chemicals and equipment to do so. Johnson v. Commonwealth, 134 S.W.3d 563, 2004 Ky. LEXIS 110 ( Ky. 2004 ).

Where defendant’s wife denied entering into an agreement to manufacture methamphetamine with defendant, but agreed to plead guilty to facilitation in exchange for her testimony against him, since the jury was not required to believe the whole of the wife’s testimony, and she appeared to be well-versed about methamphetamine manufacturing in general, there was sufficient evidence that she and defendant acted jointly in manufacturing methamphetamine; therefore, a complicity instruction was properly submitted to the jury. Pate v. Commonwealth, 243 S.W.3d 327, 2007 Ky. LEXIS 232 ( Ky. 2007 ), modified, 2007 Ky. LEXIS 289 (Ky. Nov. 1, 2007).

Because criminal facilitation is not a lesser included offense of manufacturing methamphetamine, defendant, who was found guilty of manufacturing methamphetamine, was not entitled to a criminal facilitation jury instruction, and the trial court did not err by denying defendant’s request for such an instruction. Roberts v. Commonwealth, 410 S.W.3d 606, 2013 Ky. LEXIS 405 ( Ky. 2013 ).

9.Search Warrants.

Where the officer, attempting to execute a warrant to arrest defendant, saw items used to manufacture methamphetamine in plain view during a search of defendant’s residence with the consent of defendant’s wife, due to the dangers associated with the manufacture of methamphetamine, a warrantless seizure of these items was justified by exigent circumstances. Pate v. Commonwealth, 243 S.W.3d 327, 2007 Ky. LEXIS 232 ( Ky. 2007 ), modified, 2007 Ky. LEXIS 289 (Ky. Nov. 1, 2007).

Search warrant issued based on a police officer’s affidavit that the officer had received complaints about possible methamphetamine manufacturing and that the officer had detected a strong smell of ether when the officer visited the defendant’s residence was invalid; the officer had not received the complaints on the day the search warrant was issued and the officer did not know what he was smelling even though he claimed to have smelled either; thus, the search warrant was issued based on information that was either inaccurate or false, which did not support a finding of probable cause. Hensley v. Commonwealth, 248 S.W.3d 572, 2007 Ky. App. LEXIS 397 (Ky. Ct. App. 2007).

When looking at the totality of the circumstances, officers had both probable cause and exigent circumstances to conduct a warrantless search of a car in which defendant was a passenger after receiving a pharmacy report that two men were trying to purchase multiple quantities of pseudoephedrine, conducting surveillance of defendants, and viewing drug paraphernalia and multiple boxes of pseudoephedrine in plain view. Lindsey v. Commonwealth, 306 S.W.3d 522, 2009 Ky. App. LEXIS 198 (Ky. Ct. App. 2009).

Cited:

Beckham v. Commonwealth, 2006 Ky. App. LEXIS 181 (Ky. Ct. App. 2006).

Notes to Unpublished Decisions

Analysis

1.Constitutionality.

Unpublished decision: KRS 218A.1432(1)(b) is not unconstitutionally vague, as the requirement that the defendant possess all of the chemicals or all of the equipment needed to manufacture methamphetamine virtually eliminates the possibility of arbitrary or subjective enforcement, and the additional requirement that the possession be with the intent to manufacture methamphetamine cures any uncertainty as to the nature of the conduct proscribed. Kotila v. Commonwealth, 114 S.W.3d 226, 2003 Ky. LEXIS 127 ( Ky. 2003 ), cert. denied, 540 U.S. 1198, 124 S. Ct. 1456, 158 L. Ed. 2d 114, 2004 U.S. LEXIS 1334 (U.S. 2004), overruled in part, Mills v. Dep't of Corr. Offender Info. Servs., 438 S.W.3d 328, 2014 Ky. LEXIS 328 ( Ky. 2014 ).

Unpublished decision: A trial court erred in directing verdict of guilty based upon defendant’s admission of guilt in his testimony, where defendant had never changed his not guilty plea and in not dismissing a drug manufacturing charge where a key component was absent; the manufacturing statute, KRS 218A.1432(1)(b), was however, constitutional. Taylor v. Commonwealth, 125 S.W.3d 216, 2003 Ky. LEXIS 227 ( Ky. 2003 ).

2.Purpose.

Unpublished decision: Conviction of manufacturing methamphetamine pursuant to KRS 218A.1432(1)(b) by the ephedrine reduction method by possession of the chemicals necessary to do so requires proof of (1) possession of anhydrous ammonia, and (2) possession of all of the other chemicals necessary to manufacture methamphetamine, and (3) the intent to manufacture methamphetamine. Kotila v. Commonwealth, 114 S.W.3d 226, 2003 Ky. LEXIS 127 ( Ky. 2003 ), cert. denied, 540 U.S. 1198, 124 S. Ct. 1456, 158 L. Ed. 2d 114, 2004 U.S. LEXIS 1334 (U.S. 2004), overruled in part, Mills v. Dep't of Corr. Offender Info. Servs., 438 S.W.3d 328, 2014 Ky. LEXIS 328 ( Ky. 2014 ).

3.Evidence.

Unpublished decision: Assuming evidence sufficient to support a conviction under either alternative (chemicals or equipment) of KRS 218A.1432(1)(b), the following instruction is proper: You will find the defendant guilty of manufacturing methamphetamine under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt that in this county, on or about (date) and before the finding of the indictment herein, (he) (she) knowingly (A) had in (his) (her) possession all of the chemicals or all of the equipment necessary for the manufacture of methamphetamine; and (B) did so with the intent to manufacture methamphetamine. Kotila v. Commonwealth, 114 S.W.3d 226, 2003 Ky. LEXIS 127 ( Ky. 2003 ), cert. denied, 540 U.S. 1198, 124 S. Ct. 1456, 158 L. Ed. 2d 114, 2004 U.S. LEXIS 1334 (U.S. 2004), overruled in part, Mills v. Dep't of Corr. Offender Info. Servs., 438 S.W.3d 328, 2014 Ky. LEXIS 328 ( Ky. 2014 ).

Unpublished decision: In a prosecution under KRS 218A.1432(1)(b), the failure of the jury instructions to require the jury to find beyond a reasonable doubt that defendant possessed all of the equipment for the manufacture of methamphetamine required reversal and remand for a new trial. Kotila v. Commonwealth, 114 S.W.3d 226, 2003 Ky. LEXIS 127 ( Ky. 2003 ), cert. denied, 540 U.S. 1198, 124 S. Ct. 1456, 158 L. Ed. 2d 114, 2004 U.S. LEXIS 1334 (U.S. 2004), overruled in part, Mills v. Dep't of Corr. Offender Info. Servs., 438 S.W.3d 328, 2014 Ky. LEXIS 328 ( Ky. 2014 ).

Unpublished decision: In a prosecution under KRS 218A.1432(1)(b), where the evidence was sufficient to support a conviction under the equipment alternative but not the chemicals alternative, the trial judge was not obliged have instructed the jury on criminal attempt to manufacture methamphetamine as a lesser included offense. Kotila v. Commonwealth, 114 S.W.3d 226, 2003 Ky. LEXIS 127 ( Ky. 2003 ), cert. denied, 540 U.S. 1198, 124 S. Ct. 1456, 158 L. Ed. 2d 114, 2004 U.S. LEXIS 1334 (U.S. 2004), overruled in part, Mills v. Dep't of Corr. Offender Info. Servs., 438 S.W.3d 328, 2014 Ky. LEXIS 328 ( Ky. 2014 ).

4.Sentence Enhancement.

Unpublished decision: In a prosecution under KRS 218A.1432(1)(b), no unfair prejudice resulted from resolving the firearm enhancement issue during the guilt phase of defendant’s trial, as the discovery of the firearm was relevant to the issue of whether defendant was using the vehicle for illegal controlled substance activity; if the evidence was admissible for substantive purposes, no additional prejudice occurred by resolving the possession issue during the guilt phase. Kotila v. Commonwealth, 114 S.W.3d 226, 2003 Ky. LEXIS 127 ( Ky. 2003 ), cert. denied, 540 U.S. 1198, 124 S. Ct. 1456, 158 L. Ed. 2d 114, 2004 U.S. LEXIS 1334 (U.S. 2004), overruled in part, Mills v. Dep't of Corr. Offender Info. Servs., 438 S.W.3d 328, 2014 Ky. LEXIS 328 ( Ky. 2014 ).

5.Illustrative Cases.

Unpublished decision: Evidence that defendant possessed all of the equipment and some of the chemicals necessary to manufacture methamphetamine, admitted that he knew how to manufacture methamphetamine, and admitted that he had previously manufactured the methamphetamine found during a search, as corroborated by the methamphetamine residue found on some of the equipment, was sufficient to convict him of possessing the equipment with the intent to manufacture methamphetamine. Kotila v. Commonwealth, 114 S.W.3d 226, 2003 Ky. LEXIS 127 ( Ky. 2003 ), cert. denied, 540 U.S. 1198, 124 S. Ct. 1456, 158 L. Ed. 2d 114, 2004 U.S. LEXIS 1334 (U.S. 2004), overruled in part, Mills v. Dep't of Corr. Offender Info. Servs., 438 S.W.3d 328, 2014 Ky. LEXIS 328 ( Ky. 2014 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part. 2 Schedule Substances, §§ 9.11C — 9.11E.

218A.1435. Trafficking in methamphetamine — Penalties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1998, ch. 606, § 60, effective July 15, 1998) was repealed by Acts 2000, ch. 169, § 2, effective July 14, 2000. For present law, see KRS 218A.1412 .

218A.1437. Unlawful possession of a methamphetamine precursor — Prima facie evidence of intent — Penalties.

  1. A person is guilty of unlawful possession of a methamphetamine precursor when he or she knowingly and unlawfully possesses a drug product or combination of drug products containing ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or salts of isomers, with the intent to use the drug product or combination of drug products as a precursor to manufacturing methamphetamine or other controlled substance.
    1. Except as provided in paragraph (b) of this subsection, possession of a drug product or combination of drug products containing more than nine (9) grams of ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or salts of isomers, within any thirty (30) day period shall constitute prima facie evidence of the intent to use the drug product or combination of drug products as a precursor to methamphetamine or other controlled substance. (2) (a) Except as provided in paragraph (b) of this subsection, possession of a drug product or combination of drug products containing more than nine (9) grams of ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or salts of isomers, within any thirty (30) day period shall constitute prima facie evidence of the intent to use the drug product or combination of drug products as a precursor to methamphetamine or other controlled substance.
    2. The prima facie evidence referred to in paragraph (a) of this subsection shall not apply to the following persons who lawfully possess a drug product or combination of drug products listed in subsection (1) of this section in the course of legitimate business:
      1. A retail distributor of drug products or wholesaler of drug products or its agent;
      2. A wholesale drug distributor, or its agent, issued a permit by the Board of Pharmacy;
      3. A pharmacist licensed by the Board of Pharmacy;
      4. A pharmacy permitted by the Board of Pharmacy;
      5. A licensed health care professional possessing the drug products in the course of carrying out his or her profession;
      6. A trained chemist working in a properly equipped research laboratory in an education, government, or corporate setting; or
      7. A common carrier under contract with any of the persons or entities set out in subparagraphs 1. to 6. of this paragraph.
  2. Unlawful possession of a methamphetamine precursor is a Class D felony for the first offense and a Class C felony for each subsequent offense.

History. Enact. Acts 2002, ch. 170, § 1, effective July 15, 2002; 2005, ch. 150, § 10, effective June 20, 2005.

NOTES TO DECISIONS

1.Double Jeopardy.

Defendant’s convictions for manufacturing methamphetamine under KRS 218A.1432(1)(a) and possession of a methamphetamine precursor under KRS 218A.1437(1) did not violate double jeopardy because, to be guilty of the former offense, one must have actually manufactured some quantity of methamphetamine, while to be guilty of the latter offense, one must have the precursor necessary to produce methamphetamine and the intent to use it to produce the drug in the future. Thus, the unique element between the two offenses was whether defendant had manufactured methamphetamine in the past or whether he had the materials and intent to produce it in the future; as such, defendant’s convictions did not violate the prohibition against double jeopardy under the Blockburger rule or KRS 505.020(1). Shemwell v. Commonwealth, 294 S.W.3d 430, 2009 Ky. LEXIS 181 ( Ky. 2009 ).

2.Seizure.

Trial court did not err in denying defendant’s motion to suppress evidence, as the trial court’s findings of fact were supported by substantial evidence in the record and, therefore, were not clearly erroneous; a tip provided by the store security guard, who was also a police officer, to a police officer that defendant had purchased a large quantity of pseudoephedrine, which was illegal to possess in certain quantities, provided the officer with a sufficient basis to stop defendant’s vehicle and meant that the evidence the officer seized after searching the vehicle with defendant’s consent, 10 boxes of pseudoephedrine pills, was properly seized. Nichols v. Commonwealth, 186 S.W.3d 761, 2005 Ky. App. LEXIS 223 (Ky. Ct. App. 2005).

Cited:

Lindsey v. Commonwealth, 306 S.W.3d 522, 2009 Ky. App. LEXIS 198 (Ky. Ct. App. 2009).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part. 2 Schedule Substances, § 9.11H.

218A.1438. Unlawful distribution of a methamphetamine precursor — Penalties.

  1. Notwithstanding KRS 218A.1446 , a person is guilty of unlawful distribution of a methamphetamine precursor when he or she knowingly and unlawfully sells, transfers, distributes, dispenses, or possesses with the intent to sell, transfer, distribute, or dispense any drug product or combination of drug products containing ephedrine, pseudoephedrine, or phenylpropanolamine, or any of their salts, isomers, or salts of isomers, if the person knows that the purchaser intends that the drug product or combination of drug products will be used as a precursor to methamphetamine or other controlled substance, or if the person sells, transfers, distributes, or dispenses the drug product or combination of drug products with reckless disregard as to how the drug product or combination of drug products will be used.
  2. Unlawful distribution of a methamphetamine precursor is a Class D felony for the first offense and a Class C felony for each subsequent offense.
  3. In addition to the criminal penalty specified in subsection (2) of this section, or in lieu of the criminal penalty specified in subsection (2) of this section, any person who traffics in or transfers any drug product or combination of drug products specified in subsection (1) of this section intentionally or recklessly with knowledge of or reason to know that the drug product or combination of drug products will be used to illegally manufacture methamphetamine or other controlled substance shall be liable for damages in a civil action for all damages, whether directly or indirectly caused by the sale or trafficking or transfer of the drug product or drug products.
    1. Damages may include but are not limited to:
      1. Any and all costs of detecting, investigating, and cleaning up or remediating unlawfully operated laboratories or other facilities for the illegal manufacture of methamphetamine or other controlled substance;
      2. Costs of prosecution of criminal cases arising from the illegal sale, transfer, distribution, manufacture, or dispensing of a controlled substance or their precursors;
      3. Court costs and reasonable attorney’s fees for bringing this civil action;
      4. Consequential damages; and
      5. Punitive damages.
    2. A civil action to recover damages against a person or persons violating this section may be brought by the Attorney General, an attorney of the Justice and Public Safety Cabinet, or by any Commonwealth’s attorney in whose jurisdiction the defendant may be shown to have committed an act specified in this section.
    3. All moneys collected pursuant to such civil action shall be distributed in the following order:
      1. Court costs and reasonable attorney’s fees for bringing this civil action;
      2. The reimbursement of all reasonable costs of detecting, investigating, cleaning up or remediating the laboratory or other facility utilized for manufacture of methamphetamine underlying the present judgment;
      3. The reasonable costs of prosecution of criminal cases arising from trafficking in or transfer of a precursor for the illegal manufacture of methamphetamine giving rise to the present judgment; and
      4. All remaining moneys shall be distributed to the General Fund.

History. Enact. Acts 2002, ch. 170, § 2, effective July 15, 2002; 2005, ch. 150, § 11, effective June 20, 2005; 2014, ch. 71, § 10, effective July 15, 2014.

Legislative Research Commission Notes.

(6/20/2005). 2005 Ky. Acts ch. 150, § 11, amended KRS 218A.1438 . This amendment inserted the following phrase at the beginning of the section: “Notwithstanding Section 3 of this Act,” it appears that this reference is not correct. Section 3 of this Act was a newly created section, which was codified as KRS 218A.1442 , and deals with controlled substance endangerment to children. A representative of the executive agency that prepared the original draft of this bill has told LRC staff that the reference should have been to Section 6 of the bill, a newly created section, which was codified as KRS 218A.1446 , and deals with requirements for dispensing certain nonprescription drugs.

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part. 2 Schedule Substances, §§ 9.11F, 9.11G.

218A.1439. Trafficking in or transferring a dietary supplement — Exceptions — Penalties.

  1. A person is guilty of trafficking in or transferring a dietary supplement when he or she traffics in or transfers any dietary supplement product containing ephedrine group alkaloids, except as provided in this section.
  2. The prohibition in subsection (1) of this section shall not apply to:
    1. A practitioner or pharmacist licensed in this Commonwealth who is practicing within his or her scope of practice and who prescribes or dispenses, or both, dietary supplement products containing ephedrine alkaloids in the course of the treatment of a patient under the direct care of the prescribing practitioner, except that a licensed practitioner or registered pharmacist shall not prescribe or dispense dietary supplement products containing ephedrine group alkaloids for purposes of weight loss, body building, or athletic performance enhancement;
    2. Dietary supplement products containing ephedrine group alkaloids that are sold or distributed directly to a licensed practitioner or registered pharmacist, when the dietary supplement products containing ephedrine group alkaloids are used solely for the purpose of the treatment of patients under the direct care of the practitioner;
    3. Dietary supplement products containing ephedrine group alkaloids that are sold or distributed directly to a licensed practitioner or registered pharmacist for resale to a patient for whom the products have been prescribed under paragraph (a) of this subsection; or
    4. Dietary supplement products containing ephedrine group alkaloids that are not for resale in this Commonwealth and that are sold or distributed directly to businesses not located in this Commonwealth.
  3. Trafficking in or transferring a dietary supplement is:
    1. For the first offense, a Class A misdemeanor; and
    2. For a second or subsequent offense, a Class D felony.

History. Enact. Acts 2005, ch. 150, § 1, effective June 20, 2005.

218A.1440. Unlawful possession of ephedrine-based products — AOC to provide Office of Drug Control Policy with updated information on certain drug offenders — Convicting court to inform defendant of restrictions.

    1. Notwithstanding KRS 218A.1446 , it shall be unlawful for a person convicted after July 12, 2013, of any offense in this chapter relating to methamphetamine or any offense in KRS Chapter 250 or 514 relating to anhydrous ammonia to possess or attempt to possess any compound, mixture, or preparation containing ephedrine, pseudoephedrine, phenylpropanolamine, their salts or optical isomers, or salts of optical isomers until ten (10) years have elapsed from the date the person was convicted, unless the offense was a violation of KRS 218A.1432 , in which case the prohibition shall be permanent. (1) (a) Notwithstanding KRS 218A.1446 , it shall be unlawful for a person convicted after July 12, 2013, of any offense in this chapter relating to methamphetamine or any offense in KRS Chapter 250 or 514 relating to anhydrous ammonia to possess or attempt to possess any compound, mixture, or preparation containing ephedrine, pseudoephedrine, phenylpropanolamine, their salts or optical isomers, or salts of optical isomers until ten (10) years have elapsed from the date the person was convicted, unless the offense was a violation of KRS 218A.1432 , in which case the prohibition shall be permanent.
    2. Notwithstanding KRS 218A.1446, it shall be unlawful for a person convicted prior to July 12, 2013, of any offense in this chapter relating to methamphetamine or any offense in KRS Chapter 250 or 514 relating to anhydrous ammonia to possess or attempt to possess any compound, mixture, or preparation containing ephedrine, pseudoephedrine, phenylpropanolamine, their salts or optical isomers, or salts of optical isomers without a prescription until ten (10) years have elapsed from the date the person was convicted, unless the offense was a violation of KRS 218A.1432, in which case the prohibition shall be permanent.
  1. The Administrative Office of the Courts shall report monthly to the Office of Drug Control Policy for utilization in the electronic logging or recordkeeping mechanism required under KRS 218A.1446 the conviction of any person for any offense in this chapter relating to methamphetamine or any offense in KRS Chapter 250 or 514 relating to anyhydrous ammonia, as well as the vacating, reversing, or overruling of any previously reported conviction. The information reported shall include:
    1. The defendant’s name;
    2. The defendant’s date of birth;
    3. The defendant’s address;
    4. The defendant’s identification number on a government-issued photographic identification document if available in the defendant’s records readily available to the circuit clerk;
    5. Any offense or offenses specified in subsection (1) of this section for which the defendant was convicted;
    6. The defendant’s date of conviction; and
    7. The defendant’s sentence or, if applicable, that the conviction was reversed, overruled, or vacated.
  2. A court convicting a defendant of an offense triggering the prohibition established in subsection (1) of this section shall inform the defendant of the restrictions contained in this section. Failure of a court to provide the information in accordance with this subsection shall not affect the validity of the prohibition.

History. Enact. Acts 2012, ch. 122, § 2, effective July 12, 2012; 2013, ch. 26, § 4, effective March 19, 2013.

218A.1441. Controlled substance endangerment to a child in the first degree — Penalty.

  1. A person is guilty of controlled substance endangerment to a child in the first degree when he or she knowingly causes or permits a child to be present when any person is illegally manufacturing a controlled substance or methamphetamine or possesses a hazardous chemical substance with intent to illegally manufacture a controlled substance or methamphetamine under circumstances that place a child in danger of serious physical injury or death, if the child dies as a result of the commission of the offense.
  2. Controlled substance endangerment to a child in the first degree is a Class A felony.

History. Enact. Acts 2005, ch. 150, § 2, effective June 20, 2005.

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part. 4 Miscellaneous KRS 218A Offenses, §§ 9.24B, 9.24C.

218A.1442. Controlled substance endangerment to a child in the second degree — Penalty.

  1. A person is guilty of controlled substance endangerment to a child in the second degree when he or she knowingly causes or permits a child to be present when any person is illegally manufacturing a controlled substance or methamphetamine or possesses a hazardous chemical substance with intent to illegally manufacture a controlled substance or methamphetamine under circumstances that place a child in danger of serious physical injury or death, if the child receives serious physical injury as a result of the commission of the offense.
  2. Controlled substance endangerment to a child in the second degree is a Class B felony.

History. Enact. Acts 2005, ch. 150, § 3, effective June 20, 2005.

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part. 4 Miscellaneous KRS 218A Offenses, §§ 9.24D, 9.24E.

218A.1443. Controlled substance endangerment to a child in the third degree — Penalty.

  1. A person is guilty of controlled substance endangerment to a child in the third degree when he or she knowingly causes or permits a child to be present when any person is illegally manufacturing a controlled substance or methamphetamine or possesses a hazardous chemical substance with intent to illegally manufacture a controlled substance or methamphetamine under circumstances that place a child in danger of serious physical injury or death, if the child receives physical injury as a result of the commission of the offense.
  2. Controlled substance endangerment to a child in the third degree is a Class C felony.

History. Enact. Acts 2005, ch. 150, § 4, effective June 20, 2005.

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part. 4 Miscellaneous KRS 218A Offenses, §§ 9.24F, 9.24G.

218A.1444. Controlled substance endangerment to a child in the fourth degree — Penalty.

  1. A person is guilty of controlled substance endangerment to a child in the fourth degree when he or she knowingly causes or permits a child to be present when any person is illegally manufacturing a controlled substance or methamphetamine or possesses a hazardous chemical substance with intent to illegally manufacture a controlled substance or methamphetamine under circumstances that place a child in danger of serious physical injury or death, if the child is not injured as a result of the commission of the offense.
  2. Controlled substance endangerment to a child in the fourth degree is a Class D felony.

History. Enact. Acts 2005, ch. 150, § 5, effective June 20, 2005.

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part. 4 Miscellaneous KRS 218A Offenses, §§ 9.24H, 9.24I.

218A.1446. Requirements for dispensing of ephedrine-based products — Log or recordkeeping mechanism — Thirty-day and one-year quantity limitations on ephedrine-based products — Exceptions — Preemption of local laws — Blocking mechanism — Annual report.

  1. Any compound, mixture, or preparation containing any detectable quantity of ephedrine, pseudoephedrine, or phenylpropanolamine, their salts or optical isomers, or salts of optical isomers shall be dispensed, sold, or distributed only by a registered pharmacist, a pharmacy intern, or a pharmacy technician.
  2. Any person purchasing, receiving, or otherwise acquiring any nonprescription compound, mixture, or preparation containing any detectable quantity of ephedrine, pseudoephedrine, or phenylpropanolamine, their salts or optical isomers, or salts of optical isomers shall:
    1. Produce a government-issued photo identification showing the date of birth of the person; and
    2. Sign a log or record showing the:
      1. Date of the transaction;
      2. Name, date of birth, and address of the person making the purchase; and
      3. The amount and name of the compound, mixture, or preparation.

        Only an electronic logging or recordkeeping mechanism approved by the Office of Drug Control Policy may be utilized to meet the requirements of this subsection. No pharmacy may dispense or sell any compound, mixture, or preparation containing any detectable quantity of ephedrine, pseudoephedrine, or phenylpropanolamine, their salts or optical isomers, or salts of optical isomers unless the electronic logging or recordkeeping mechanism required by this section is provided at no cost to the pharmacy.

  3. An electronic log or record, as described in subsection (2) of this section, shall be kept of each day’s transactions. The registered pharmacist, a pharmacy intern, or a pharmacy technician shall initial the entry of each sale in the log, evidencing completion of each transaction. The log shall be:
    1. Kept for a period of two (2) years; and
    2. Subject to random and warrantless inspection by city, county, or state law enforcement officers.
    1. Intentional failure of a registered pharmacist, a pharmacy intern, or a pharmacy technician to make an accurate entry of a sale of a product or failure to maintain the log records as required by this section may subject him or her to a fine of not more than one thousand dollars ($1,000) for each violation and may be evidence of a violation of KRS 218A.1438 . (4) (a) Intentional failure of a registered pharmacist, a pharmacy intern, or a pharmacy technician to make an accurate entry of a sale of a product or failure to maintain the log records as required by this section may subject him or her to a fine of not more than one thousand dollars ($1,000) for each violation and may be evidence of a violation of KRS 218A.1438 .
    2. If evidence exists that the pharmacist’s, the pharmacy intern’s, or the pharmacist technician’s employer fails, neglects, or encourages incorrect entry of information by improper training, lack of supervision or oversight of the maintenance of logs, or other action or inaction, the employer shall also face liability under this section and any other applicable section of this chapter.
    3. It shall be a defense to a violation of this section that the person proves that circumstances beyond the control of the registered pharmacist, pharmacy intern, or pharmacy technician delayed or prevented the making of the record or retention of the record as required by this section. Examples of circumstances beyond the control of the registered pharmacist, pharmacy intern, or pharmacy technician include but are not limited to:
      1. Fire, natural or manmade disaster, loss of power, and similar events;
      2. Robbery, burglary, shoplifting, or other criminal act by a person on the premises;
      3. A medical emergency suffered by the registered pharmacist, pharmacy intern, or pharmacy technician, another employee of the establishment, a customer, or any other person on the premises; or
      4. Some other circumstance that establishes that an omission was inadvertent.
  4. No person shall purchase, receive, or otherwise acquire any product, mixture, or preparation or combinations of products, mixtures, or preparations containing more than seven and one-fifth (7.2) grams of ephedrine, pseudoephedrine, or phenylpropanolamine, their salts or optical isomers, or salts of optical isomers within any thirty (30) day period or twenty-four (24) grams within any one (1) year period, provided that either of these limits shall not apply to any quantity of product, mixture or preparation dispensed pursuant to a valid prescription. In addition to the thirty (30) day and the one (1) year restrictions, no person shall purchase, receive, or otherwise acquire more than three (3) packages of any product, mixture, or preparation containing ephedrine, pseudoephedrine, or phenylpropanolamine, their salts or optical isomers, or salts of optical isomers during each transaction.
  5. A person under eighteen (18) years of age shall not purchase or attempt to purchase any quantity of a nonprescription ephedrine, pseudoephedrine, or phenylpropanolamine product as described in subsection (1) of this section. No person shall aid or assist a person under eighteen (18) years of age in purchasing any quantity of a nonprescription ephedrine, pseudoephedrine, or phenylpropanolamine product as described in subsection (1) of this section.
  6. The requirements of this section shall not apply to any compounds, mixtures, or preparation containing ephedrine, pseudoephedrine, or phenylpropanolamine, their salts or optical isomers, or salts of optical isomers which are in liquid, liquid capsule, or gel capsule form or to any compounds, mixtures, or preparations containing ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts or optical isomers which are deemed to be not subject to abuse upon joint review and agreement of the Office of Drug Control Policy, the Board of Pharmacy, and the Cabinet for Health and Family Services.
  7. The provisions of this section shall not apply to a:
    1. Licensed manufacturer manufacturing and lawfully distributing a product in the channels of commerce;
    2. Wholesaler lawfully distributing a product in the channels of commerce;
    3. Pharmacy with a valid permit from the Kentucky Board of Pharmacy;
    4. Health care facility licensed pursuant to KRS Chapter 216B;
    5. Licensed long-term care facility;
    6. Government-operated health department;
    7. Physician’s office;
    8. Publicly operated prison, jail, or juvenile correctional facility, or a private adult or juvenile correctional facility under contract with the Commonwealth;
    9. Public or private educational institution maintaining a health care program; or
    10. Government-operated or industrial medical facility serving its own employees.
  8. The provisions of this section shall supersede and preempt all local laws, ordinances, and regulations pertaining to the sale of any compounds, mixtures, or preparation containing ephedrine, pseudoephedrine, phenylpropanolamine, their salts or optical isomers, or salts of optical isomers.
  9. To be approved for use under this section, a logging or recordkeeping system shall:
    1. Be designed to block the dispensing of any compound, mixture, or preparation containing ephedrine, pseudoephedrine, phenylpropanolamine, their salts or optical isomers, or salts of optical isomers, where the dispensing would exceed the quantity limitations established in this section or would be prohibited under KRS 218A.1440 ; and
    2. Allow unimpeded access by the Office of Drug Control Policy to any data stored in the system for statistical analysis purposes.
  10. The Office of Drug Control Policy shall prepare and submit to the Legislative Research Commission an annual statistical report on the sale of compounds, mixtures, or preparations containing ephedrine, pseudoephedrine, phenylpropanolamine, their salts or optical isomers, or salts of optical isomers, including state and county sale amounts and numbers of individual purchasers.

History. Enact. Acts 2005, ch. 150, § 6, effective June 20, 2005; 2007, ch. 124, § 12, effective June 26, 2007; 2012, ch. 122, § 1, effective July 12, 2012; 2013, ch. 26, § 5, effective March 19, 2013.

218A.1447. Restrictions on possession of dextromethorphan and sale of products containing dextromethorphan.

  1. A person, other than a medical facility, medical practitioner, pharmacist, pharmacy intern, pharmacy technician, pharmacy licensed or registered under KRS Chapter 315, or registrant under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. secs. 301 et seq., shall not possess one (1) gram or more of:
    1. Pure dextromethorphan; or
    2. Dextromethorphan extracted from solid or liquid dose forms, as defined by United States Pharmacopeia reference standards.
  2. A person shall not sell any products containing dextromethorphan to individuals under eighteen (18) years of age, except that in any prosecution for selling a product containing dextromethorphan to an individual under eighteen (18) years of age it shall be an affirmative defense that the sale was induced by the use of false, fraudulent, or altered identification papers or other documents and that the appearance and character of the purchaser were such that his or her age could not have been ascertained by any other means and that the purchaser’s appearance and character indicated strongly that he or she was of legal age to purchase products containing dextromethorphan. This evidence may be introduced either in mitigation of the charge or as a defense to the charge itself.
  3. Any person who sells any product containing dextromethorphan shall limit access to these products by requiring proof of age from a prospective buyer by showing a government-issued photo identification card that displays his or her date of birth if the person has reason to believe that the prospective buyer is under the age of eighteen (18) years.

HISTORY: 2015 ch. 23, § 1, effective June 24, 2015.

218A.1448. Offenses relating to purchases of products containing dextromethorphan by minors.

  1. No person shall aid or assist any person under eighteen (18) years of age in purchasing any product containing dextromethorphan.
  2. A person under eighteen (18) years of age shall not misrepresent his or her age for the purpose of inducing a retail establishment or the retail establishment’s agent, servant, or employee to sell or serve a product containing dextromethorphan to the underage person.
  3. A person under eighteen (18) years of age shall not use or attempt to use any false, fraudulent, or altered identification card, paper, or any other document to purchase or attempt to purchase or otherwise obtain a product containing dextromethorphan.
  4. Any person under the age of eighteen (18) years of age shall not purchase or attempt to purchase or have another person purchase for him or her a product containing dextromethorphan.

HISTORY: 2015 ch. 23, § 2, effective June 24, 2015.

218A.1449. Penalties for violation of KRS 218A.1447 or 218A.1448.

  1. Any person who violates KRS 218A.1447(1) shall be subject to a fine of one thousand dollars ($1,000) for the first violation and two thousand five hundred dollars ($2,500) for each subsequent violation.
  2. Any person who knowingly violates KRS 218A.1447(2) shall be subject to a fine of twenty-five dollars ($25) for the first violation and two hundred dollars ($200) for each subsequent violation.
  3. Any person who knowingly violates KRS 218A.1447(3) shall be subject to a fine of twenty-five dollars ($25) for the first violation and two hundred fifty dollars ($250) for each subsequent violation.
  4. Any person who knowingly violates KRS 218A.1448(1) shall be subject to a fine of one hundred dollars ($100) for the first violation and two hundred dollars ($200) for each subsequent violation.
  5. Any person who violates KRS 218A.1448(2), (3), or (4) shall be subject to a fine of twenty-five dollars ($25) for the first violation, a fine of one hundred dollars ($100) for the second violation, and a fine of two hundred dollars ($200) for each subsequent violation.

HISTORY: 2015 ch. 23, § 3, effective June 24, 2015.

218A.1450. Trafficking in salvia — Penalty.

  1. A person is guilty of trafficking in salvia when he or she knowingly and unlawfully traffics in salvia for human consumption.
  2. Trafficking in salvia is a Class A misdemeanor.

History. Enact. Acts 2010, ch. 160, § 1, effective April 26, 2010.

218A.1451. Possession of salvia — Penalty — Maximum term of incarceration.

  1. A person is guilty of possession of salvia when he or she knowingly and unlawfully possesses salvia for human consumption.
  2. Possession of salvia is a Class B misdemeanor, except that, KRS Chapter 532 to the contrary notwithstanding, the maximum term of incarceration shall be no greater than thirty (30) days.

History. Enact. Acts 2010, ch. 160, § 2, effective April 26, 2010; 2011, ch. 2, § 18, effective June 8, 2011.

218A.1452. Salvia cultivation — Penalty.

  1. A person is guilty of salvia cultivation when he or she knowingly and unlawfully plants, cultivates, or harvests salvia with the intent to sell or transfer it for human consumption.
  2. Salvia cultivation is a Class A misdemeanor.

History. Enact. Acts 2010, ch. 160, § 3, effective April 26, 2010.

218A.1453. Trafficking in substituted cathinones — Penalty. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 2011, ch. 45, § 1, effective March 16, 2011) was repealed by Acts 2012, ch. 108, § 17, effective April 11, 2012.

218A.1454. Possession of substituted cathinones — Penalty. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 2011, ch. 45, § 2, effective March 16, 2011) was repealed by Acts 2012, ch. 108, § 17, effective April 11, 2012.

218A.1455. Manufacturing substituted cathinones — Penalty. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 2011, ch. 45, § 3, effective March 16, 2011) was repealed by Acts 2012, ch. 108, § 17, effective April 11, 2012.

218A.150. License required to manufacture controlled substances. [Repealed]

HISTORY: Enact. Acts 1972, ch. 226, § 16; 1974, ch. 74, Art. VI, § 107(3); 1998, ch. 426, § 482, effective July 15, 1998; 2005, ch. 99, § 539, effective June 20, 2005; repealed by 2018 ch. 112, § 19, effective July 14, 2018.

218A.160. Criteria for issuance of license — Appeal. [Repealed]

HISTORY: Enact. Acts 1972, ch. 226, § 17; 1974, ch. 74, Art. VI, § 107(3); 1996, ch. 318, § 129, effective July 15, 1996; 1998, ch. 426, § 483, effective July 15, 1998; 2005, ch. 99, § 540, effective June 20, 2005; repealed by 2018 ch. 112, § 19, effective July 14, 2018.

218A.170. Sale, distribution, administration, or prescription of controlled substances by licensed manufacturers, distributors, wholesalers, pharmacists, or practitioners — Nontoxic compositions for safe disposal of controlled substances — Duties of pharmacists and practitioners — Penalties.

  1. A duly licensed manufacturer, distributor, or wholesaler may sell or distribute controlled substances, other than samples, to any of the following persons:
    1. To a manufacturer, wholesaler, or pharmacy;
    2. To a practitioner;
    3. To the administrator in charge of a hospital, but only for use by or in that hospital;
    4. To a person in charge of a laboratory, but only for use in that laboratory for scientific and medical research purposes;
    5. To a person registered pursuant to the federal controlled substances laws.
  2. A pharmacist may sell or distribute a controlled substance:
    1. Pursuant to a prescription that conforms to the requirements of this chapter; or
    2. To a person registered pursuant to the federal controlled substances laws.
  3. A pharmacist who is licensed under KRS Chapter 315 or a pharmacist’s designee shall inform persons who receive a prescription for a controlled substance that contains any salt, compound, derivative, or preparation of an opioid, benzodiazepine, a barbiturate, codeine, or an amphetamine, about the importance of proper and safe disposal of unused, unwanted, or expired prescription drugs by one of the following methods:
    1. Verbally;
    2. In writing; or
    3. Posted signage.
  4. Upon dispensing of any prescription that contains any salt, compound, derivative, or preparation of an opioid, benzodiazepine, a barbiturate, codeine, or an amphetamine, a pharmacist who is licensed under KRS Chapter 315 or a pharmacist’s designee may:
    1. Make available for purchase, or at no charge distribute, a nontoxic composition for the sequestration, deactivation, destruction, and disposal of any unused, unwanted, or expired prescription; or
    2. Provide an on-site, safe, and secure medicine disposal receptacle or kiosk for the safe disposal of any unused, unwanted, or expired prescription.
  5. A manufacturer or distributor of nontoxic compositions for the sequestration, deactivation, or destruction and disposal of controlled substances is strongly encouraged to enter into a consignment-reimbursement contract with a pharmacy in order for a pharmacy to expand its inventory of the nontoxic compositions.
  6. A practitioner may:
    1. Administer, dispense, or prescribe a controlled substance only for a legitimate medical purpose and in the course of professional practice; or
    2. Distribute a controlled substance to a person registered pursuant to the federal controlled substance laws.
  7. A practitioner who dispenses a controlled substance that contains any salt, compound, derivative, or preparation of an opioid, benzodiazepine, a barbiturate, codeine, or an amphetamine shall:
    1. Inform all persons who receive a prescription for a controlled substance about the importance of proper and safe disposal of unused, unwanted, or expired prescription drugs; and
    2. Make available for purchase, or at no cost distribute, a nontoxic composition for the sequestration, deactivation, or destruction and disposal of unused, unwanted, or expired controlled substances.
  8. All sales and distributions shall be in accordance with KRS 218A.200 and the federal controlled substances laws, including the requirements governing the use of order forms.
  9. Possession of or control of controlled substances obtained as authorized by this section shall be lawful if in the regular course of business, occupation, profession, employment, or duty of the possessor.
  10. Subsections (3), (4), (7), and (12) of this section shall not apply to veterinarians.
  11. The Kentucky Medicaid program shall not be required to provide payment for the provisions established in subsections (4) and (7) of this section.
  12. Any person who violates subsection (3) or (7) of this section shall be subject to a fine of twenty-five dollars ($25) for the first violation, a fine of one hundred dollars ($100) for the second violation, and a fine of two hundred dollars ($200) for each subsequent violation.

HISTORY: Enact. Acts 1972, ch. 226, § 18; 1998, ch. 301, § 23, effective July 15, 1998; 2018 ch. 108, § 1, effective July 14, 2018.

Opinions of Attorney General.

Possession of a controlled substance in the state of Kentucky, once it is authorized, is not a proscribed activity by this section. OAG 73-453 .

The mailing of samples of controlled substances by laboratories to a practitioner in Kentucky is statutorily prohibited. OAG 73-453 .

This section prohibits the sale and distribution of controlled substances in samples by a duly licensed manufacturer. OAG 73-453 .

Although a goal of this section is to improve the administration and regulation of the manufacturing and dispensing of controlled substances through a system of accountability, the intent is simply to prevent physicians from receiving “samples” of controlled substances. OAG 76-226 .

In considering what is meant by the term “samples” emphasis is not to be placed on quantity but rather on similarity in the quality and kind of the substance offered for sale and the specimen given free of charge; thus, “samples” is any quantity of a controlled substance provided to those named in this section. OAG 76-226 .

Since possession of a controlled substance obtained by any other than lawful means is unlawful, a practitioner obtaining possession from an unauthorized source violates this chapter and reference to his professional practice is unnecessary. OAG 76-599 .

218A.171. Electronic prescribing.

  1. Electronic prescribing of a controlled substance under this chapter shall not interfere with a patient’s freedom to select a pharmacy.
  2. Electronic prescribing software used by a practitioner to prescribe a controlled substance under this chapter may include clinical messaging and messages in pop-up windows directed to the practitioner regarding a particular controlled substance that supports the practitioner’s clinical decision making.
  3. Drug information contained in electronic prescribing software to prescribe a controlled substance under this chapter shall be consistent with Food and Drug Administration-approved information regarding a particular controlled substance.
    1. Electronic prescribing software used by a practitioner to prescribe a controlled substance under this chapter may show information regarding a payor’s formulary, copayments, or benefit plan, provided that nothing in the software is designed to preclude a practitioner from selecting any particular pharmacy or controlled substance. (4) (a) Electronic prescribing software used by a practitioner to prescribe a controlled substance under this chapter may show information regarding a payor’s formulary, copayments, or benefit plan, provided that nothing in the software is designed to preclude a practitioner from selecting any particular pharmacy or controlled substance.
    2. If electronic prescribing software does show information regarding a payor’s formulary, payments, or benefit plan under paragraph (a) of this subsection, the information shall be updated at least quarterly to ensure its accuracy.
  4. Each governmental unit of the Commonwealth promulgating administrative regulations relating to electronic prescribing shall include in the regulations electronic prior authorization standards meeting the requirements of KRS 304.17A-167 in its implementation of health information technology improvements as required by the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 and the Health Information Technology for Economic and Clinical Health Act, enacted as part of the American Recovery and Reinvestment Act of 2009.

HISTORY: Enact. Acts 2012, ch. 136, § 2, effective July 12, 2012; 2019 ch. 190, § 4, effective January 1, 2020.

Compiler's Notes.

For this section as effective until January 1, 2020, see the bound volume.

218A.172. Administrative regulations on prescribing or dispensing of Schedule II controlled substance or Schedule III controlled substance containing hydrocodone — Continuing course of treatment — Recordkeeping — Exemptions. [Effective until June 29, 2021]

  1. Administrative regulations promulgated under KRS 218A.205(3) shall require that, prior to the initial prescribing or dispensing of any Schedule II controlled substance or a Schedule III controlled substance containing hydrocodone to a human patient, a practitioner shall:
    1. Obtain a medical history and conduct a physical or mental health examination of the patient, as appropriate to the patient’s medical complaint, and document the information in the patient’s medical record;
    2. Query the electronic monitoring system established in KRS 218A.202 for all available data on the patient for the twelve (12) month period immediately preceding the patient encounter and appropriately utilize that data in the evaluation and treatment of the patient;
    3. Make a written plan stating the objectives of the treatment and further diagnostic examinations required;
    4. Discuss the risks and benefits of the use of controlled substances with the patient, the patient’s parent if the patient is an unemancipated minor child, or the patient’s legal guardian or health care surrogate, including the risk of tolerance and drug dependence; and
    5. Obtain written consent for the treatment.
    1. Administrative regulations promulgated under KRS 218A.205(3) shall require that a practitioner prescribing or dispensing additional amounts of Schedule II controlled substances or Schedule III controlled substances containing hydrocodone for the same medical complaint and related symptoms shall: (2) (a) Administrative regulations promulgated under KRS 218A.205(3) shall require that a practitioner prescribing or dispensing additional amounts of Schedule II controlled substances or Schedule III controlled substances containing hydrocodone for the same medical complaint and related symptoms shall:
      1. Review, at reasonable intervals based on the patient’s individual circumstances and course of treatment, the plan of care;
      2. Provide to the patient any new information about the treatment; and
      3. Modify or terminate the treatment as appropriate.
    2. If the course of treatment extends beyond three (3) months, the administrative regulations shall also require that the practitioner:
      1. Query the electronic monitoring system established in KRS 218A.202 no less than once every three (3) months for all available data on the patient for the twelve (12) month period immediately preceding the query; and
      2. Review that data before issuing any new prescription or refills for the patient for any Schedule II controlled substance or a Schedule III controlled substance containing hydrocodone.
  2. Administrative regulations promulgated under KRS 218A.205(3) shall require that, for each patient for whom a practitioner prescribes any Schedule II controlled substance or a Schedule III controlled substance containing hydrocodone, the practitioner shall keep accurate, readily accessible, and complete medical records which include, as appropriate:
    1. Medical history and physical or mental health examination;
    2. Diagnostic, therapeutic, and laboratory results;
    3. Evaluations and consultations;
    4. Treatment objectives;
    5. Discussion of risk, benefits, and limitations of treatments;
    6. Treatments;
    7. Medications, including date, type, dosage, and quantity prescribed or dispensed;
    8. Instructions and agreements; and
    9. Periodic reviews of the patient’s file.
  3. Administrative regulations promulgated under KRS 218A.205(3) may exempt, in whole or in part, compliance with the mandatory diagnostic, treatment, review, and other protocols and standards established in this section for:
    1. A licensee prescribing or administering a controlled substance immediately prior to, during, or within the fourteen (14) days following an operative or invasive procedure or a delivery if the prescribing or administering is medically related to the operative or invasive procedure or the delivery and the medication usage does not extend beyond the fourteen (14) days;
    2. A licensee prescribing or administering a controlled substance necessary to treat a patient in an emergency situation;
    3. A licensed pharmacist or other person licensed by the Kentucky Board of Pharmacy to dispense drugs or a licensed pharmacy;
    4. A licensee prescribing or dispensing a controlled substance:
      1. For administration in a hospital or long-term-care facility if the hospital or long-term-care facility with an institutional account, or a practitioner in those hospitals or facilities where no institutional account exists, queries the electronic monitoring system established in KRS 218A.202 for all available data on the patient or resident for the twelve (12) month period immediately preceding the query within twelve (12) hours of the patient’s or resident’s admission and places a copy of the query in the patient’s or resident’s medical records during the duration of the patient’s stay at the facility;
      2. As part of the patient’s hospice or end-of-life treatment;
      3. For the treatment of pain associated with cancer or with the treatment of cancer;
      4. In a single dose to relieve the anxiety, pain, or discomfort experienced by a patient submitting to a diagnostic test or procedure;
      5. Within seven (7) days of an initial prescribing or dispensing under subsection (1) of this section if the prescribing or dispensing:
        1. Is done as a substitute for the initial prescribing or dispensing;
        2. Cancels any refills for the initial prescription; and
        3. Requires the patient to dispose of any remaining unconsumed medication;
      6. Within ninety (90) days of an initial prescribing or dispensing under subsection (1) of this section if the prescribing or dispensing is done by another practitioner in the same practice or in an existing coverage arrangement, if done for the same patient for the same medical condition; or
      7. To a research subject enrolled in a research protocol approved by an institutional review board that has an active federalwide assurance number from the United States Department of Health and Human Services, Office for Human Research Protections, where the research involves single, double, or triple blind drug administration or is additionally covered by a certificate of confidentiality from the National Institutes of Health;
    5. The prescribing of a Schedule III, IV, or V controlled substance by a licensed optometrist to a patient in accordance with the provisions of KRS 320.240 ; or
    6. The prescribing of a three (3) day supply of a Schedule III controlled substance following the performance of oral surgery by a dentist licensed pursuant to KRS Chapter 313.
    1. A state licensing board promulgating administrative regulations under KRS 218A.205(3) may promulgate an administrative regulation authorizing exemptions supplemental or in addition to those specified in subsection (4) of this section. Prior to exercising this authority, the board shall: (5) (a) A state licensing board promulgating administrative regulations under KRS 218A.205(3) may promulgate an administrative regulation authorizing exemptions supplemental or in addition to those specified in subsection (4) of this section. Prior to exercising this authority, the board shall:
      1. Notify the Kentucky Office of Drug Control Policy that it is considering a proposal to promulgate an administrative regulation authorizing exemptions supplemental or in addition to those specified in subsection (4) of this section and invite the office to participate in the board meeting at which the proposal will be considered;
      2. Make a factual finding based on expert testimony as well as evidence or research submitted to the board that the exemption demonstrates a low risk of diversion or abuse and is supported by the dictates of good medical practice; and
      3. Submit a report to the Governor and the Legislative Research Commission of its actions, including a detailed explanation of the factual and policy basis underlying the board’s action. A copy of this report shall be provided to the regulations compiler.
    2. Within one (1) working day of promulgating an administrative regulation authorizing an exemption under this section, the promulgating board shall e-mail to the Kentucky Office of Drug Control Policy:
      1. A copy of the administrative regulation as filed, and all attachments required by KRS 13A.230(1); and
      2. A request from the board that the office review the administrative regulation in the same manner as would the Commission on Small Business Advocacy under KRS 11.202(1)(e), and submit its report or comments in accordance with the deadline established in KRS 13A.270(1)(c). A copy of the report or comments shall be filed with the regulations compiler.

History. Enact. Acts 2012 (1st Ex. Sess.), ch. 1, § 3, effective July 20, 2012; 2013, ch. 2, § 1, effective March 4, 2013.

218A.172. Administrative regulations on prescribing or dispensing of Schedule II controlled substance or Schedule III controlled substance containing hydrocodone — Continuing course of treatment — Recordkeeping — Exemptions. [Effective June 29, 2021]

  1. Administrative regulations promulgated under KRS 218A.205(3) shall require that, prior to the initial prescribing or dispensing of any Schedule II controlled substance or a Schedule III controlled substance containing hydrocodone to a human patient, a practitioner shall:
    1. Obtain a medical history and conduct a physical or mental health examination of the patient, as appropriate to the patient’s medical complaint, and document the information in the patient’s medical record;
    2. Query the electronic monitoring system established in KRS 218A.202 for all available data on the patient for the twelve (12) month period immediately preceding the patient encounter and appropriately utilize that data in the evaluation and treatment of the patient;
    3. Make a written plan stating the objectives of the treatment and further diagnostic examinations required;
    4. Discuss the risks and benefits of the use of controlled substances with the patient, the patient’s parent if the patient is an unemancipated minor child, or the patient’s legal guardian or health care surrogate, including the risk of tolerance and drug dependence; and
    5. Obtain written consent for the treatment.
    1. Administrative regulations promulgated under KRS 218A.205(3) shall require that a practitioner prescribing or dispensing additional amounts of Schedule II controlled substances or Schedule III controlled substances containing hydrocodone for the same medical complaint and related symptoms shall: (2) (a) Administrative regulations promulgated under KRS 218A.205(3) shall require that a practitioner prescribing or dispensing additional amounts of Schedule II controlled substances or Schedule III controlled substances containing hydrocodone for the same medical complaint and related symptoms shall:
      1. Review, at reasonable intervals based on the patient’s individual circumstances and course of treatment, the plan of care;
      2. Provide to the patient any new information about the treatment; and
      3. Modify or terminate the treatment as appropriate.
    2. If the course of treatment extends beyond three (3) months, the administrative regulations shall also require that the practitioner:
      1. Query the electronic monitoring system established in KRS 218A.202 no less than once every three (3) months for all available data on the patient for the twelve (12) month period immediately preceding the query; and
      2. Review that data before issuing any new prescription or refills for the patient for any Schedule II controlled substance or a Schedule III controlled substance containing hydrocodone.
  2. Administrative regulations promulgated under KRS 218A.205(3) shall require that, for each patient for whom a practitioner prescribes any Schedule II controlled substance or a Schedule III controlled substance containing hydrocodone, the practitioner shall keep accurate, readily accessible, and complete medical records which include, as appropriate:
    1. Medical history and physical or mental health examination;
    2. Diagnostic, therapeutic, and laboratory results;
    3. Evaluations and consultations;
    4. Treatment objectives;
    5. Discussion of risk, benefits, and limitations of treatments;
    6. Treatments;
    7. Medications, including date, type, dosage, and quantity prescribed or dispensed;
    8. Instructions and agreements; and
    9. Periodic reviews of the patient’s file.
  3. Administrative regulations promulgated under KRS 218A.205(3) may exempt, in whole or in part, compliance with the mandatory diagnostic, treatment, review, and other protocols and standards established in this section for:
    1. A licensee prescribing or administering a controlled substance immediately prior to, during, or within the fourteen (14) days following an operative or invasive procedure or a delivery if the prescribing or administering is medically related to the operative or invasive procedure or the delivery and the medication usage does not extend beyond the fourteen (14) days;
    2. A licensee prescribing or administering a controlled substance necessary to treat a patient in an emergency situation;
    3. A licensed pharmacist or other person licensed by the Kentucky Board of Pharmacy to dispense drugs or a licensed pharmacy;
    4. A licensee prescribing or dispensing a controlled substance:
      1. For administration in a hospital or long-term-care facility if the hospital or long-term-care facility with an institutional account, or a practitioner in those hospitals or facilities where no institutional account exists, queries the electronic monitoring system established in KRS 218A.202 for all available data on the patient or resident for the twelve (12) month period immediately preceding the query within twelve (12) hours of the patient’s or resident’s admission and places a copy of the query in the patient’s or resident’s medical records during the duration of the patient’s stay at the facility;
      2. As part of the patient’s hospice or end-of-life treatment;
      3. For the treatment of pain associated with cancer or with the treatment of cancer;
      4. In a single dose to relieve the anxiety, pain, or discomfort experienced by a patient submitting to a diagnostic test or procedure;
      5. Within seven (7) days of an initial prescribing or dispensing under subsection (1) of this section if the prescribing or dispensing:
        1. Is done as a substitute for the initial prescribing or dispensing;
        2. Cancels any refills for the initial prescription; and
        3. Requires the patient to dispose of any remaining unconsumed medication;
      6. Within ninety (90) days of an initial prescribing or dispensing under subsection (1) of this section if the prescribing or dispensing is done by another practitioner in the same practice or in an existing coverage arrangement, if done for the same patient for the same medical condition; or
      7. To a research subject enrolled in a research protocol approved by an institutional review board that has an active federalwide assurance number from the United States Department of Health and Human Services, Office for Human Research Protections, where the research involves single, double, or triple blind drug administration or is additionally covered by a certificate of confidentiality from the National Institutes of Health;
    5. The prescribing of a Schedule III, IV, or V controlled substance by a licensed optometrist to a patient in accordance with the provisions of KRS 320.240 ; or
    6. The prescribing of a three (3) day supply of a Schedule III controlled substance following the performance of oral surgery by a dentist licensed pursuant to KRS Chapter 313.
    1. A state licensing board promulgating administrative regulations under KRS 218A.205(3) may promulgate an administrative regulation authorizing exemptions supplemental or in addition to those specified in subsection (4) of this section. Prior to exercising this authority, the board shall: (5) (a) A state licensing board promulgating administrative regulations under KRS 218A.205(3) may promulgate an administrative regulation authorizing exemptions supplemental or in addition to those specified in subsection (4) of this section. Prior to exercising this authority, the board shall:
      1. Notify the Kentucky Office of Drug Control Policy that it is considering a proposal to promulgate an administrative regulation authorizing exemptions supplemental or in addition to those specified in subsection (4) of this section and invite the office to participate in the board meeting at which the proposal will be considered;
      2. Make a factual finding based on expert testimony as well as evidence or research submitted to the board that the exemption demonstrates a low risk of diversion or abuse and is supported by the dictates of good medical practice; and
      3. Submit a report to the Governor and the Legislative Research Commission of its actions, including a detailed explanation of the factual and policy basis underlying the board’s action. A copy of this report shall be provided to the regulations compiler.
    2. Within one (1) working day of promulgating an administrative regulation authorizing an exemption under this section, the promulgating board shall e-mail to the Kentucky Office of Drug Control Policy:
      1. A copy of the administrative regulation as filed, and all attachments required by KRS 13A.230(1); and
      2. A request from the board that the office review the administrative regulation in the same manner as would the Commission on Small Business Innovation and Advocacy under KRS 11.202(1)(e), and submit its report or comments in accordance with the deadline established in KRS 13A.270(1)(c). A copy of the report or comments shall be filed with the regulations compiler.

HISTORY: Enact. Acts 2012 (1st Ex. Sess.), ch. 1, § 3, effective July 20, 2012; 2013, ch. 2, § 1, effective March 4, 2013; 2021 ch. 185, § 139, effective June 29, 2021.

218A.175. Pain management facilities — Physician ownership required — Additional activities permitted to qualifying facilities — Certification requirements — Payment for services rendered or goods provided — Compliance with section as additional licensure condition — Penalty for violation.

    1. As used in this section, “pain management facility” means a facility where the majority of patients of the practitioners at the facility are provided treatment for pain that includes the use of controlled substances and: (1) (a) As used in this section, “pain management facility” means a facility where the majority of patients of the practitioners at the facility are provided treatment for pain that includes the use of controlled substances and:
      1. The facility’s primary practice component is the treatment of pain; or
      2. The facility advertises in any medium for any type of pain management services.
    2. “Pain management facility” does not include the following:
      1. A hospital, including a critical access hospital, as defined in KRS Chapter 216, a facility owned by the hospital, or the office of a hospital-employed physician;
      2. A school, college, university, or other educational institution or program to the extent that it provides instruction to individuals preparing to practice as physicians, podiatrists, dentists, nurses, physician assistants, optometrists, or veterinarians;
      3. A hospice program or residential hospice facility licensed under KRS Chapter 216B;
      4. An ambulatory surgical center licensed under KRS Chapter 216B; or
      5. A long-term-care facility as defined in KRS 216.510 .
    1. Only a physician having a full and active license to practice medicine issued under KRS Chapter 311 shall have an ownership or investment interest in a pain management facility. Credit extended by a financial institution as defined in KRS 136.500 to the facility shall not be deemed an investment interest under this subsection. This ownership or investment requirement shall not be enforced against any pain management facility existing and operating on April 24, 2012, unless there is an administrative sanction or criminal conviction relating to controlled substances imposed on the facility, any person employed by the facility, or any person working at the facility as an independent contractor for an act or omission done within the scope of the facility’s licensure or the person’s employment. (2) (a) Only a physician having a full and active license to practice medicine issued under KRS Chapter 311 shall have an ownership or investment interest in a pain management facility. Credit extended by a financial institution as defined in KRS 136.500 to the facility shall not be deemed an investment interest under this subsection. This ownership or investment requirement shall not be enforced against any pain management facility existing and operating on April 24, 2012, unless there is an administrative sanction or criminal conviction relating to controlled substances imposed on the facility, any person employed by the facility, or any person working at the facility as an independent contractor for an act or omission done within the scope of the facility’s licensure or the person’s employment.
    2. A facility qualifying for the exemption permitted by paragraph (a) of this subsection whose ownership has been continuously held jointly and exclusively by practitioners having full and active licenses to practice in Kentucky since April 24, 2012, may, after June 24, 2015:
      1. Open and operate no more than two (2) additional facilities in locations other than those locations existing and operating on April 24, 2012;
      2. Transfer whole or partial ownership between existing practitioner owners;
      3. Transfer whole or partial ownership interests to new owners if the new owners are physicians having full and active licenses to practice in Kentucky and the facility notifies the cabinet of the transfer thirty (30) days before it occurs; and
      4. Pass the ownership interest of a deceased former owner through that person’s estate to a physician having a full and active license to practice in Kentucky without disqualifying the facility’s grandfathered status under this subsection if the facility notifies the cabinet of the transfer thirty (30) days before it occurs in cases where the interest is being transferred to a physician who is not an existing owner in the facility.
  1. Regardless of the form of facility ownership, beginning on July 20, 2012, at least one (1) of the owners or an owner’s designee who is a physician employed by and under the supervision of the owner shall be physically present practicing medicine in the facility for at least fifty percent (50%) of the time that patients are present in the facility, and that physician owner or designee shall:
    1. Hold a current subspecialty certification in pain management by a member board of the American Board of Medical Specialties, or hold a current certificate of added qualification in pain management by the American Osteopathic Association Bureau of Osteopathic Specialists;
    2. Hold a current subspecialty certification in hospice and palliative medicine by a member board of the American Board of Medical Specialties, or hold a current certificate of added qualification in hospice and palliative medicine by the American Osteopathic Association Bureau of Osteopathic Specialists;
    3. Hold a current board certification by the American Board of Pain Medicine;
    4. Hold a current board certification by the American Board of Interventional Pain Physicians;
    5. Have completed a fellowship in pain management or an accredited residency program that included a rotation of at least five (5) months in pain management; or
    6. If the facility is operating under a registration filed with the Kentucky Board of Medical Licensure, have completed or hold, or be making reasonable progress toward completing or holding, a certification or training substantially equivalent to the certifications or training specified in this subsection, as authorized by the Kentucky Board of Medical Licensure by administrative regulation.
  2. A pain management facility shall accept private health insurance as one (1) of the facility’s allowable forms of payment for goods or services provided and shall accept payment for services rendered or goods provided to a patient only from the patient or the patient’s insurer, guarantor, spouse, parent, guardian, or legal custodian.
  3. If the pain management facility is operating under a license issued by the cabinet, the cabinet shall include and enforce the provisions of this section as additional conditions of that licensure. If the pain management facility is operating as the private office or clinic of a physician under KRS 216B.020(2), the Kentucky Board of Medical Licensure shall enforce the provisions of this section. The provisions of this subsection shall not apply to the investigation or enforcement of criminal liability.
  4. Any person who violates the provisions of this section shall be guilty of a Class A misdemeanor.

HISTORY: Enact. Acts 2012 (1st Ex. Sess.), ch. 1, § 1, effective July 20, 2012; 2013, ch. 2, § 2, effective March 4, 2013; 2015 ch. 33, § 1, effective June 24, 2015.

218A.180. Distribution by practitioner or pharmacist — Prescription requirements — Penalties.

  1. Except when dispensed directly by a practitioner to an ultimate user, no controlled substance listed in Schedule II may be dispensed without the written, facsimile, electronic, or oral prescription of a practitioner. A prescription for a controlled substance listed in Schedule II may be dispensed by a facsimile prescription only as specified in administrative regulations promulgated by the cabinet. A prescription for a controlled substance listed in Schedule II may be dispensed by oral prescription only for immediate administration to a patient enrolled in a hospice program or a resident in a long-term care facility, as defined in KRS 216.535 , excluding a family care home or personal care home, and the practitioner determines that immediate administration is necessary, no appropriate alternative treatment is available, and it is not reasonably possible for the prescriber to provide a written prescription. No prescription for a controlled substance in Schedule II shall be valid after sixty (60) days from the date issued. No prescription for a controlled substance in Schedule II shall be refilled. All prescriptions for controlled substances classified in Schedule II shall be maintained in a separate prescription file.
  2. Except when dispensed directly by a practitioner to an ultimate user, a controlled substance included in Schedules III, IV, and V, which is a prescription drug, shall not be dispensed without a written, facsimile, electronic, or oral prescription by a practitioner. The prescription shall not be filled or refilled more than six (6) months after the date issued or be refilled more than five (5) times, unless renewed by the practitioner and a new prescription, written, electronic, or oral shall be required.
    1. To be valid, a prescription for a controlled substance shall be issued only for a legitimate medical purpose by a practitioner acting in the usual course of his professional practice. Responsibility for the proper dispensing of a controlled substance pursuant to a prescription for a legitimate medical purpose is upon the pharmacist who fills the prescription. (3) (a) To be valid, a prescription for a controlled substance shall be issued only for a legitimate medical purpose by a practitioner acting in the usual course of his professional practice. Responsibility for the proper dispensing of a controlled substance pursuant to a prescription for a legitimate medical purpose is upon the pharmacist who fills the prescription.
    2. A prescription shall not be issued for a practitioner to obtain a controlled substance for the purpose of general dispensing or administering to patients.
  3. All written, facsimile, and electronic prescriptions for controlled substances shall be dated and signed by the practitioner on the date issued. A computer-generated prescription that is printed out or faxed by the practitioner shall be manually signed. A prescription may be transmitted by facsimile only as specified in administrative regulations promulgated by the cabinet. Electronic prescriptions shall be created, signed, and transmitted in accordance with the requirements of 21 C.F.R. 1311.
  4. All prescriptions for controlled substances shall include the full name and address of the patient, drug name, strength, dosage form, quantity prescribed, directions for use, and the name, address and registration number of the practitioner.
  5. All oral prescriptions for controlled substances shall be immediately reduced to writing, dated, and signed by the pharmacist.
  6. A pharmacist refilling any prescription shall record on the prescription or other equivalent record the date, the quantity, and the pharmacist’s initials. The maintenance of prescription records under the federal controlled substances laws and regulations containing substantially the same information as specified in this subsection shall constitute compliance with this subsection.
  7. The pharmacist filling a written, facsimile, electronic, or oral prescription for a controlled substance shall affix to the package a label showing the date of filling, the pharmacy name and address, the serial number of the prescription, the name of the patient, the name of the prescribing practitioner and directions for use and cautionary statements, if any, contained in such prescription or required by law.
  8. Any person who violates any provision of this section shall:
    1. For the first offense, be guilty of a Class A misdemeanor.
    2. For a second or subsequent offense, be guilty of a Class D felony.

HISTORY: Enact. Acts 1972, ch. 226, § 19; 1982, ch. 259, § 1, effective July 15, 1982; 1998, ch. 301, § 24, effective July 15, 1998; 1998, ch. 606, § 68, effective July 15, 1998; 2011, ch. 63, § 1, effective June 8, 2011; 2017 ch. 168, § 9, effective June 28, 2017.

NOTES TO DECISIONS

1.Applicability.

Penalties set forth in KRS 218A.180 could not be used to usurp the penalty provisions of KRS 218A.1404(4) and, thus, defendant was properly sentenced under KRS 218A.1404(4) for illegally prescribing controlled substances in violation KRS 218A.1404(3); KRS 218A.180 was merely a record keeping and prescription format section and its penalty provisions did not apply to defendant’s case. Commonwealth v. Sears, 206 S.W.3d 309, 2006 Ky. LEXIS 295 ( Ky. 2006 ).

Cited:

Gambrel v. Kentucky Bd. of Dentistry, 689 F.2d 612, 1982 U.S. App. LEXIS 25348 (6th Cir. 1982), cert. denied, 459 U.S. 1208, 103 S. Ct. 1198, 75 L. Ed. 2d 441, 1983 U.S. LEXIS 3430 (1983).

Opinions of Attorney General.

A nurse is not authorized to dispense any controlled substance even under the immediate supervision of a licensed practicing physician unless the physician has prescribed the substance. OAG 76-217 .

218A.182. Electronic prescribing of controlled substances required — Exceptions — Duties of pharmacist — Administrative regulations.

  1. Notwithstanding KRS 218A.180 or any other state law to the contrary, beginning January 1, 2021, no practitioner shall issue any prescription for a controlled substance unless the prescription is made by electronic prescription from the practitioner issuing the prescription to a pharmacy, except for prescriptions issued:
    1. By veterinarians;
    2. In circumstances where electronic prescribing is not available due to temporary technological or electrical failure;
    3. By a practitioner to be dispensed by a pharmacy located outside the state;
    4. When the prescriber and dispenser are the same entity;
    5. That include elements that are not supported by the most recently implemented version of the National Council for Prescription Drug Programs Prescriber/Pharmacist Interface SCRIPT Standard;
    6. By a practitioner for a drug that contains certain elements that cannot be incorporated as required by the United States Food and Drug Administration with electronic prescribing, including extemporaneous compounding;
    7. By a practitioner allowing for the dispensing of a nonpatient specific prescription under a standing order, approved protocol for drug therapy, or collaborative drug management or comprehensive medication management, in response to a public health emergency;
    8. By a practitioner prescribing a drug under a research protocol;
    9. By practitioners who have received a waiver or a renewal thereof, from the requirement to use electronic prescribing due to economic hardship, technological limitations that are not reasonably within the control of the practitioner, or other exceptional circumstance demonstrated by the practitioner. The initial waiver and each subsequent waiver renewal shall not exceed one (1) year per waiver or waiver renewal;
    10. By a practitioner under circumstances where, notwithstanding the practitioner’s present ability to make an electronic prescription as required by this subsection, the practitioner reasonably determines that it would be impractical for the patient to obtain substances prescribed by electronic prescription in a timely manner, and delay would adversely impact the patient’s medical condition;
    11. By a practitioner for an individual who receives hospice care; or
    12. By a practitioner for an individual who is a resident of a nursing facility.
  2. A pharmacist who receives a written, oral, or faxed prescription for a controlled substance shall not be required to verify that the prescription properly falls under one (1) of the exceptions from the requirement to electronically prescribe. Pharmacists may continue to dispense medications from otherwise valid written, oral, or fax prescriptions that are consistent with current laws and administrative regulations.
  3. The cabinet shall promulgate administrative regulations to implement this section including enforcement mechanisms, waivers of requirements, and appropriate penalties for violations.

HISTORY: 2019 ch. 106, § 1, effective January 1, 2021.

218A.185. Automated pharmacy system in residential hospice facilities.

  1. As used in this section:
    1. “Automated pharmacy system” means a mechanical system that delivers prescribed over-the-counter and legend drugs, and controlled substances received from a pharmacy licensed in Kentucky that maintains transaction information; and
    2. “Residential hospice facility” means a facility licensed under KRS Chapter 216B that provides residential skilled nursing care, pain management, and treatment for acute and chronic conditions for terminally ill patients.
  2. Nothing in this chapter shall preclude a residential hospice facility from obtaining pharmacy services from a pharmacy through the use of an automated pharmacy system in accordance with KRS 315.295 and related administrative regulations promulgated by the Kentucky Board of Pharmacy. A residential hospice facility and the pharmacy providing pharmacy services shall comply with the reporting requirements of this chapter.

History. Enact. Acts 2006, ch. 153, § 4, effective July 12, 2006.

218A.190. Exempt codeine preparations.

  1. Nonprescription medicinal preparations that contain in one hundred (100) milliliters, or as a solid or semisolid preparation, in one hundred (100) grams, not more than two hundred (200) milligrams of codeine or its salts may be sold over the counter subject to the following conditions:
    1. That the medicinal preparation shall contain in addition to the codeine in it, some drug or drugs conferring upon it medicinal qualities other than those possessed by the codeine alone;
    2. That such preparation shall be dispensed or sold in good faith as a medicine, and not for the purpose of evading the provisions of this chapter;
    3. That such preparation shall only be sold at retail without a prescription to a person at least eighteen (18) years of age and only by a pharmacist. An employee may complete the actual cash or credit transaction or delivery;
    4. That such preparations shall not be displayed in areas of the pharmacy open to the public; and
    5. That no person shall purchase and no pharmacist or practitioner shall sell to the same person within a forty-eight (48) hour period more than one hundred twenty (120) milliliters of an exempt codeine preparation. Any person purchasing in excess of this limitation shall be deemed to be in illegal possession.
  2. All wholesalers, manufacturers, and repackers shall keep a separate exempt codeine registry showing the following:
    1. Date;
    2. Registration number of recipient;
    3. Name of recipient;
    4. Address;
    5. Name of preparation; and
    6. Quantity.
  3. All pharmacists and practitioners shall keep a separate exempt codeine registry showing the following:
    1. Date;
    2. Name of recipient;
    3. Address;
    4. Name of preparation;
    5. Quantity; and
    6. Pharmacist’s or practitioner’s name.
  4. Notwithstanding any other provision of this section, the Cabinet for Health and Family Services may by regulation specifically prohibit any such codeine preparation from being sold over the counter due to actual or potential abuse.

History. Enact. Acts 1972, ch. 226, § 20; 1974, ch. 74, Art. VI, § 107(3); 1998, ch. 426, § 484, effective July 15, 1998; 2005, ch. 99, § 541, effective June 20, 2005.

218A.200. Record-keeping and inventory requirements — Penalties.

  1. Every practitioner who is authorized to administer or professionally use controlled substances, shall keep a record of substances received by him, and a record of all substances administered, dispensed, or professionally used by him otherwise than by prescription. Every such record shall be kept for a period of five (5) years.
  2. Manufacturers and wholesalers shall keep records of all controlled substances compounded, mixed, cultivated, grown, or by any other process produced or prepared, and of all controlled substances received and disposed of by them. Every such record shall be kept for a period of two (2) years.
  3. Pharmacists shall keep records of all controlled substances received and disposed of by them. Every such record shall be kept for a period of five (5) years.
  4. The record of controlled substances received shall in every case show the date of receipt, the name and address of the person from whom received, and the kind and quantity of drugs received. The record of all controlled substances sold, administered, dispensed, or otherwise disposed of, shall show the date of selling, administering, or dispensing, the name and address of the person to whom, or for whose use, or the owner and species of animal for which the drugs were sold, administered, or dispensed, and the kind and quantity.
  5. The keeping of a record under the federal controlled substances laws, containing substantially the same information as is specified in subsection (4) of this section, shall constitute compliance with this section.
  6. A copy of the detailed list of controlled substances lost, destroyed, or stolen shall be forwarded to the Cabinet for Health and Family Services as soon as practical.
    1. Every manufacturer, distributor, wholesaler, repacker, practitioner, pharmacist, or other person authorized to possess controlled substances shall take an inventory of all controlled substances in his possession at least every two (2) years. (7) (a) Every manufacturer, distributor, wholesaler, repacker, practitioner, pharmacist, or other person authorized to possess controlled substances shall take an inventory of all controlled substances in his possession at least every two (2) years.
    2. A substance which is added to any schedule of controlled substances and which was not previously listed in any schedule shall be initially inventoried within thirty (30) days of the effective date of the statute or administrative regulation which adds the substance to the provisions of this chapter. Thereafter, the substance shall be included in the inventory required by paragraph (a) of this subsection.
  7. Any person who violates any provision of this section shall be guilty of a Class A misdemeanor for a first offense and a Class D felony for subsequent offenses.

History. Enact. Acts 1972, ch. 226, § 21; 1974, ch. 74, Art. VI, § 107(3); 1998, ch. 301, § 25, effective July 15, 1998; 1998, ch. 426, § 485, effective July 15, 1998; 2005, ch. 99, § 542, effective June 20, 2005.

218A.202. Electronic system for monitoring controlled substances — Required registration and reporting — Penalty for illegal use of system — Continuing education programs — Reports of failure to comply with section — Quarterly reviews to identify patterns of improper prescribing or dispensing — Administrative regulations — Collection and retention of drug conviction data.

  1. The Cabinet for Health and Family Services shall establish and maintain an electronic system for monitoring Schedules II, III, IV, and V controlled substances. The cabinet may contract for the design, upgrade, or operation of this system if the contract preserves all of the rights, privileges, and protections guaranteed to Kentucky citizens under this chapter and the contract requires that all other aspects of the system be operated in conformity with the requirements of this or any other applicable state or federal law.
  2. A practitioner or a pharmacist authorized to prescribe or dispense controlled substances to humans shall register with the cabinet to use the system provided for in this section and shall maintain such registration continuously during the practitioner’s or pharmacist’s term of licensure and shall not have to pay a fee or tax specifically dedicated to the operation of the system.
  3. Every practitioner or pharmacy which dispenses a controlled substance to a person in Kentucky, or to a person at an address in Kentucky, shall report to the Cabinet for Health and Family Services the data required by this section, which includes the reporting of any Schedule II controlled substance dispensed at a facility licensed by the cabinet and a Schedule II through Schedule V controlled substance regardless of dosage when dispensed by the emergency department of a hospital to an emergency department patient. Reporting shall not be required for:
    1. A drug administered directly to a patient in a hospital, a resident of a health care facility licensed under KRS Chapter 216B, a resident of a child-caring facility as defined by KRS 199.011 , or an individual in a jail, correctional facility, or juvenile detention facility;
    2. A Schedule III through Schedule V controlled substance dispensed by a facility licensed by the cabinet provided that the quantity dispensed is limited to an amount adequate to treat the patient for a maximum of forty-eight (48) hours and is not dispensed by the emergency department of a hospital; or
    3. A drug administered or dispensed to a research subject enrolled in a research protocol approved by an institutional review board that has an active federalwide assurance number from the United States Department of Health and Human Services, Office for Human Research Protections, where the research involves single, double, or triple blind drug administration or is additionally covered by a certificate of confidentiality from the National Institutes of Health.
  4. In addition to the data required by subsection (5) of this section, a Kentucky-licensed acute care hospital or critical access hospital shall report to the cabinet all positive toxicology screens that were performed by the hospital’s emergency department to evaluate the patient’s suspected drug overdose.
  5. Data for each controlled substance that is reported shall include but not be limited to the following:
    1. Patient identifier;
    2. National drug code of the drug dispensed;
    3. Date of dispensing;
    4. Quantity dispensed;
    5. Prescriber; and
    6. Dispenser.
  6. The data shall be provided in the electronic format specified by the Cabinet for Health and Family Services unless a waiver has been granted by the cabinet to an individual dispenser. The cabinet shall establish acceptable error tolerance rates for data. Dispensers shall ensure that reports fall within these tolerances. Incomplete or inaccurate data shall be corrected upon notification by the cabinet if the dispenser exceeds these error tolerance rates.
  7. The Cabinet for Health and Family Services shall only disclose data to persons and entities authorized to receive that data under this section. Disclosure to any other person or entity, including disclosure in the context of a civil action where the disclosure is sought either for the purpose of discovery or for evidence, is prohibited unless specifically authorized by this section. The Cabinet for Health and Family Services shall be authorized to provide data to:
    1. A designated representative of a board responsible for the licensure, regulation, or discipline of practitioners, pharmacists, or other person who is authorized to prescribe, administer, or dispense controlled substances and who is involved in a bona fide specific investigation involving a designated person;
    2. Employees of the Office of the Inspector General of the Cabinet for Health and Family Services who have successfully completed training for the electronic system and who have been approved to use the system, federal prosecutors, Kentucky Commonwealth’s attorneys and assistant Commonwealth’s attorneys, county attorneys and assistant county attorneys, a peace officer certified pursuant to KRS 15.380 to 15.404 , a certified or full-time peace officer of another state, or a federal agent whose duty is to enforce the laws of this Commonwealth, of another state, or of the United States relating to drugs and who is engaged in a bona fide specific investigation involving a designated person;
    3. A state-operated Medicaid program in conformity with subsection (8) of this section;
    4. A properly convened grand jury pursuant to a subpoena properly issued for the records;
    5. A practitioner or pharmacist, or employee of the practitioner’s or pharmacist’s practice acting under the specific direction of the practitioner or pharmacist, who certifies that the requested information is for the purpose of:
      1. Providing medical or pharmaceutical treatment to a bona fide current or prospective patient;
      2. Reviewing data on controlled substances that have been reported for the birth mother of an infant who is currently being treated by the practitioner for neonatal abstinence syndrome, or has symptoms that suggest prenatal drug exposure; or
      3. Reviewing and assessing the individual prescribing or dispensing patterns of the practitioner or pharmacist or to determine the accuracy and completeness of information contained in the monitoring system;
    6. The chief medical officer of a hospital or long-term-care facility, an employee of the hospital or long-term-care facility as designated by the chief medical officer and who is working under his or her specific direction, or a physician designee if the hospital or facility has no chief medical officer, if the officer, employee, or designee certifies that the requested information is for the purpose of providing medical or pharmaceutical treatment to a bona fide current or prospective patient or resident in the hospital or facility;
    7. In addition to the purposes authorized under paragraph (a) of this subsection, the Kentucky Board of Medical Licensure, for any physician who is:
      1. Associated in a partnership or other business entity with a physician who is already under investigation by the Board of Medical Licensure for improper prescribing or dispensing practices;
      2. In a designated geographic area for which a trend report indicates a substantial likelihood that inappropriate prescribing or dispensing may be occurring; or
      3. In a designated geographic area for which a report on another physician in that area indicates a substantial likelihood that inappropriate prescribing or dispensing may be occurring in that area;
    8. In addition to the purposes authorized under paragraph (a) of this subsection, the Kentucky Board of Nursing, for any advanced practice registered nurse who is:
      1. Associated in a partnership or other business entity with a physician who is already under investigation by the Kentucky Board of Medical Licensure for improper prescribing or dispensing practices;
      2. Associated in a partnership or other business entity with an advanced practice registered nurse who is already under investigation by the Board of Nursing for improper prescribing practices;
      3. In a designated geographic area for which a trend report indicates a substantial likelihood that inappropriate prescribing or dispensing may be occurring; or
      4. In a designated geographic area for which a report on a physician or another advanced practice registered nurse in that area indicates a substantial likelihood that inappropriate prescribing or dispensing may be occurring in that area;
    9. A judge or a probation or parole officer administering a diversion or probation program of a criminal defendant arising out of a violation of this chapter or of a criminal defendant who is documented by the court as a substance abuser who is eligible to participate in a court-ordered drug diversion or probation program; or
    10. A medical examiner engaged in a death investigation pursuant to KRS 72.026 .
  8. The Department for Medicaid Services shall use any data or reports from the system for the purpose of identifying Medicaid providers or recipients whose prescribing, dispensing, or usage of controlled substances may be:
    1. Appropriately managed by a single outpatient pharmacy or primary care physician; or
    2. Indicative of improper, inappropriate, or illegal prescribing or dispensing practices by a practitioner or drug seeking by a Medicaid recipient.
  9. A person who receives data or any report of the system from the cabinet shall not provide it to any other person or entity except as provided in this section, in another statute, or by order of a court of competent jurisdiction and only to a person or entity authorized to receive the data or the report under this section, except that:
    1. A person specified in subsection (7)(b) of this section who is authorized to receive data or a report may share that information with any other persons specified in subsection (7)(b) of this section authorized to receive data or a report if the persons specified in subsection (7)(b) of this section are working on a bona fide specific investigation involving a designated person. Both the person providing and the person receiving the data or report under this paragraph shall document in writing each person to whom the data or report has been given or received and the day, month, and year that the data or report has been given or received. This document shall be maintained in a file by each agency engaged in the investigation;
    2. A representative of the Department for Medicaid Services may share data or reports regarding overutilization by Medicaid recipients with a board designated in subsection (7)(a) of this section, or with a law enforcement officer designated in subsection (7)(b) of this section;
    3. The Department for Medicaid Services may submit the data as evidence in an administrative hearing held in accordance with KRS Chapter 13B;
    4. If a state licensing board as defined in KRS 218A.205 initiates formal disciplinary proceedings against a licensee, and data obtained by the board is relevant to the charges, the board may provide the data to the licensee and his or her counsel, as part of the notice process required by KRS 13B.050 , and admit the data as evidence in an administrative hearing conducted pursuant to KRS Chapter 13B, with the board and licensee taking all necessary steps to prevent further disclosure of the data; and
    5. A practitioner, pharmacist, or employee who obtains data under subsection (7)(e) of this section may share the report with the patient or person authorized to act on the patient’s behalf. Any practitioner, pharmacist, or employee who obtains data under subsection (7)(e) of this section may place the report in the patient’s medical record, in which case the individual report shall then be deemed a medical record subject to disclosure on the same terms and conditions as an ordinary medical record in lieu of the disclosure restrictions otherwise imposed by this section.
  10. The Cabinet for Health and Family Services, all peace officers specified in subsection (7)(b) of this section, all officers of the court, and all regulatory agencies and officers, in using the data for investigative or prosecution purposes, shall consider the nature of the prescriber’s and dispenser’s practice and the condition for which the patient is being treated.
  11. The data and any report obtained therefrom shall not be a public record, except that the Department for Medicaid Services may submit the data as evidence in an administrative hearing held in accordance with KRS Chapter 13B.
  12. Intentional failure to comply with the reporting requirements of this section shall be a Class B misdemeanor for the first offense and a Class A misdemeanor for each subsequent offense.
  13. Intentional disclosure of transmitted data to a person not authorized by subsections (7) to (9) of this section or authorized by KRS 315.121 , or obtaining information under this section not relating to a bona fide current or prospective patient or a bona fide specific investigation, shall be a Class B misdemeanor for the first offense and a Class A misdemeanor for each subsequent offense.
  14. The Cabinet for Health and Family Services may, by promulgating an administrative regulation, limit the length of time that data remain in the electronic system. Any data removed from the system shall be archived and subject to retrieval within a reasonable time after a request from a person authorized to review data under this section.

    1. The Cabinet for Health and Family Services shall work with each board responsible for the licensure, regulation, or discipline of practitioners, pharmacists, or other persons who are authorized to prescribe, administer, or dispense controlled substances for the development of a continuing education program about the purposes and uses of the electronic system for monitoring established in this section. (15) (a) The Cabinet for Health and Family Services shall work with each board responsible for the licensure, regulation, or discipline of practitioners, pharmacists, or other persons who are authorized to prescribe, administer, or dispense controlled substances for the development of a continuing education program about the purposes and uses of the electronic system for monitoring established in this section.
    2. The cabinet shall work with the Kentucky Bar Association for the development of a continuing education program for attorneys about the purposes and uses of the electronic system for monitoring established in this section.
    3. The cabinet shall work with the Justice and Public Safety Cabinet for the development of a continuing education program for law enforcement officers about the purposes and uses of the electronic system for monitoring established in this section.
  15. If the cabinet becomes aware of a prescriber’s or dispenser’s failure to comply with this section, the cabinet shall notify the licensing board or agency responsible for licensing the prescriber or dispenser. The licensing board shall treat the notification as a complaint against the licensee.
  16. The cabinet shall promulgate administrative regulations to implement the provisions of this section. Included in these administrative regulations shall be:
    1. An error resolution process allowing a patient to whom a report had been disclosed under subsection (9) of this section to request the correction of inaccurate information contained in the system relating to that patient; and
    2. A requirement that data be reported to the system under subsection (3) of this section within one (1) day of dispensing.
  17. The Cabinet for Health and Family Services, Office of Inspector General, shall conduct quarterly reviews to identify patterns of potential improper, inappropriate, or illegal prescribing or dispensing of a controlled substance. The Office of Inspector General may independently investigate and submit findings and recommendations to the appropriate boards of licensure or other reporting agencies.
  18. Before July 1, 2018, the Administrative Office of the Courts shall forward data regarding any felony or Class A misdemeanor conviction that involves the trafficking or possession of a controlled substance or other prohibited acts under KRS Chapter 218A for the previous five (5) calendar years to the cabinet for inclusion in the electronic monitoring system established under this section. On or after July 1, 2018, such data shall be forwarded by the Administrative Office of the Courts to the cabinet on a continuing basis. The cabinet shall incorporate the data received into the system so that a query by patient name indicates any prior drug conviction.

HISTORY: Enact. Acts 1998, ch. 301, § 13, effective July 15, 1998; 2002, ch. 295, § 1, effective April 9, 2002; 2004, ch. 68, § 1, effective July 13, 2004; 2004, ch. 107, § 1, effective July 13, 2004; 2005, ch. 85, § 627, effective June 20, 2005; 2005, ch. 99, § 543, effective June 20, 2005; 2006, ch. 5, § 5, effective July 12, 2006; 2007, ch. 85, § 252, effective June 26, 2007; 2007, ch. 124, § 4, effective June 26, 2007; 2010, ch. 85, § 43, effective July 15, 2010; 2012, ch. 1 (1st Ex. Sess.), § 4, effective July 20, 2012; 2013, ch. 2, § 3, effective March 4, 2013; 2017 ch. 120, § 1, effective June 29, 2017; 2017 ch. 138, § 1, effective June 29, 2017; 2017 ch. 168, § 10, effective June 29, 2017.

Legislative Research Commission Notes.

(6/29/2017). This statute was amended by 2017 Ky. Acts chs. 120, 138, and 168, which do not appear to be in conflict and have been codified together.

(7/13/2004). This section was amended by 2004 Ky. Acts chs. 68 and 107. Where these Acts are not in conflict, they have been codified together. Where a conflict exists, Acts ch. 107, which was last enacted by the General Assembly, prevails under KRS 446.250 .

NOTES TO DECISIONS

Analysis

1.In General.

Police detective’s use of information from the Kentucky all schedules prescription electronic reporting system (KASPER) of KRS 218A.202 was not an unreasonable search and seizure under U.S. Const. amend. IV or Ky. Const. § 10; instead, the administrative search exception to the warrant and probable cause requirements applied because the State had a substantial interest in tracing drug distributions, the KASPER system reasonably advanced that interest, and KRS 218A.202 (6) clearly informed practitioners and patients that the data was subject to limited police inspection and properly restrained officers’ discretion. Thacker v. Commonwealth, 80 S.W.3d 451, 2002 Ky. App. LEXIS 1276 (Ky. Ct. App. 2002), overruled in part, Williams v. Commonwealth, 213 S.W.3d 671, 2006 Ky. LEXIS 305 ( Ky. 2006 ).

2.Constitutionality.

KRS 218A.202(6)(a) and (b) are facially constitutional as the examination of the Kentucky All-Schedule Prescription Electronic Reporting System reports does not constitute a search under the Fourth Amendment or Ky. Const. § 10 since citizens had no reasonable expectation of privacy in the limited examination of and access to their prescription records. Williams v. Commonwealth, 213 S.W.3d 671, 2006 Ky. LEXIS 305 ( Ky. 2006 ).

KRS 218A.202(6), which precludes the release of KASPER records for discovery purposes, directly conflicts with CR 26.02(1); that portion of KRS 218A.202(6) that prohibits disclosure in discovery in civil litigation is an unconstitutional violation of the separation of powers doctrine as it articulates a rule of practice that purports to control a responsibility assigned by the Kentucky Constitution to the Kentucky Judicial Branch. Commonwealth v. Chauvin, 2008 Ky. App. LEXIS 190 (Ky. Ct. App. June 13, 2008), rev'd, 316 S.W.3d 279, 2010 Ky. LEXIS 146 ( Ky. 2010 ).

3.Confidentiality.

Police detective’s use of information from the Kentucky all schedules prescription electronic reporting system (KASPER) of KRS 218A.202 to investigate defendant’s possible violation of controlled substance laws did not violate the confidentiality provisions of KRS 218A.202 (6) since the officer did not disclose the KASPER report to anyone during his investigation or testimony. Thacker v. Commonwealth, 80 S.W.3d 451, 2002 Ky. App. LEXIS 1276 (Ky. Ct. App. 2002), overruled in part, Williams v. Commonwealth, 213 S.W.3d 671, 2006 Ky. LEXIS 305 ( Ky. 2006 ).

In view of the powerful interest that plays into the need to keep Kentucky All-Schedule Prescription Electronic Reporting records confidential, the proper method to be used by a trial court, prior to ordering any disclosure of the documents, should be ordering that the KASPER records be produced under seal for a trial court’s review in camera so as to decide what portion of the records, if any, satisfies the relevancy requirement of Ky. R. Civ. P. 26.02(1). Any ordered release of KASPER documents to the parties to an action shall be conditioned upon a confidentiality provision. Commonwealth v. Chauvin, 2008 Ky. App. LEXIS 190 (Ky. Ct. App. June 13, 2008), rev'd, 316 S.W.3d 279, 2010 Ky. LEXIS 146 ( Ky. 2010 ).

4.Disclosure.

Trial court properly ordered an in camera review of the Kentucky All-Schedule Prescription Electronic Reporting records after defendant made a good cause showing of relevance since defendant’s rights to due and compulsory process under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and Ky. Const. § 11 took precedence over any conflicting language in KRS 218A.202 ; the government had to disclose exculpatory information, and the KASPER data was in the government’s possession. Commonwealth v. Bartlett, 2008 Ky. App. LEXIS 191 (Ky. Ct. App. June 13, 2008), aff'd, 311 S.W.3d 224, 2010 Ky. LEXIS 55 ( Ky. 2010 ).

Whatever prohibition against disclosure KRS 218A.202 makes, it cannot infringe on a criminal defendant’s rights under the U.S. Const. amends. V, VI, XIV or Ky. Const. § 11. Therefore, a trial court did not err by ordering the disclosure of Kentucky All-Schedule Prescription Electronic Reporting reports in a criminal case. Commonwealth v. Bartlett, 311 S.W.3d 224, 2010 Ky. LEXIS 55 ( Ky. 2010 ).

Legislature has the power to create privileges, such as to Kentucky All-Schedule Prescription Electronic Reporting (KASPER) records, both from the Supreme Court’s own rules and from the legislature’s inherent power to enact substantive law. Thus, in a civil suit in which a defendant sought discovery of the plaintiff’s KASPER record, the KASPER statute created a privilege as to KASPER records, which the circuit court’s discovery order would have violated, and the appellate court’s order denying in part the Commonwealth’s petition for a writ of prohibition was reversed. Commonwealth v. Chauvin, 316 S.W.3d 279, 2010 Ky. LEXIS 146 ( Ky. 2010 ).

Because no court order could be located providing for a copy of defendant’s Kentucky All-Schedule Prescription Electronic Reporting (KASPER) report to be given to a physician testifying for the prosecution or to the prosecutor, defendant was correct in her assertion that her KASPER report should not have been provided to them under KRS 218A.202 . Douglas v. Commonwealth, 374 S.W.3d 345, 2012 Ky. App. LEXIS 123 (Ky. Ct. App. 2012).

Cited:

Carter v. Commonwealth, 358 S.W.3d 4, 2011 Ky. App. LEXIS 82 (Ky. Ct. App. 2011).

Notes to Unpublished Decisions

1.Constitutionality.

Unpublished decision: It was not error to permit the Government to cross-examine defense witnesses using information learned from the Kentucky All Schedule Prescription and Electronic Reporting System, since the reports were obtained pursuant to a “legitimate” investigation. United States v. Sawaf, 129 Fed. Appx. 136, 2005 U.S. App. LEXIS 4736 (6th Cir. Ky. 2005 ).

Opinions of Attorney General.

Data maintained under the Kentucky All Schedules Prescription Electronic Reporting (“KASPER”) system cannot be informally disclosed by the Board of Medical Licensure to a licensee under investigation or charged with misconduct, nor provided through formal discovery, nor introduced into evidence in a Board of Medical Licensure hearing, without a court order. OAG 2005-07 .

In denying the requester’s access to a KASPER report, the Cabinet for Health Services acted pursuant to KRS 218A.202(6), outlining who and what may have access to KASPER reports and under what circumstances access is to be given, and in accordance with KRS 218A.202(8), which states, “The data and any report obtained therefrom shall not be a public record.” The requester, as an individual, does not fit within the limited numbers of people who can receive KASPER reports, and the General Assembly has specifically exempted records of the KASPER program from access under the Kentucky Open Records Act. OAG 03-ORD-227.

Since ordinances banning pain clinics are not the subject of an express power granted to local governmental units by the General Assembly, and infringe upon the legislative policy embodied in statutes regulating the practice of medicine and distribution of controlled substances, such ordinances are beyond the legitimate authority of a unit of local government. OAG 11-003 , 2011 Ky. AG LEXIS 54.

218A.204. Administrative regulations to establish security requirements for prescriptions — Waiver.

The Cabinet for Health and Family Services shall promulgate administrative regulations in accordance with KRS Chapter 13A that establish security requirements for all prescriptions written by practitioners. The administrative regulations shall include a procedure to obtain a waiver for prescription blanks that provide substantially equivalent protection against forgery.

History. Enact. Acts 1998, ch. 301, § 14, effective July 15, 1998; 2005, ch. 99, § 544, effective June 20, 2005.

218A.205. Reports of improper, inappropriate, or illegal prescribing or dispensing of controlled substances — Administrative regulations for prescribing and dispensing protocols and licensure actions and requirements — Presumption of medical necessity — Complaint procedure — Criminal record check.

  1. As used in this section:
    1. “Reporting agency” includes:
      1. The Department of Kentucky State Police;
      2. The Office of the Attorney General;
      3. The Cabinet for Health and Family Services; and
      4. The applicable state licensing board; and
    2. “State licensing board” means:
      1. The Kentucky Board of Medical Licensure;
      2. The Kentucky Board of Nursing;
      3. The Kentucky Board of Dentistry;
      4. The Kentucky Board of Optometric Examiners;
      5. The State Board of Podiatry; and
      6. Any other board that licenses or regulates a person who is entitled to prescribe or dispense controlled substances to humans.
    1. When a reporting agency or a law enforcement agency receives a report of improper, inappropriate, or illegal prescribing or dispensing of a controlled substance it may, to the extent otherwise allowed by law, send a copy of the report within three (3) business days to every other reporting agency. (2) (a) When a reporting agency or a law enforcement agency receives a report of improper, inappropriate, or illegal prescribing or dispensing of a controlled substance it may, to the extent otherwise allowed by law, send a copy of the report within three (3) business days to every other reporting agency.
    2. A county attorney or Commonwealth’s attorney shall notify the Office of the Attorney General and the appropriate state licensing board within three (3) business days of an indictment or a waiver of indictment becoming public in his or her jurisdiction charging a licensed person with a felony offense relating to the manufacture of, trafficking in, prescribing, dispensing, or possession of a controlled substance.
  2. Each state licensing board shall, in consultation with the Kentucky Office of Drug Control Policy, establish the following by administrative regulation for those licensees authorized to prescribe or dispense controlled substances:
    1. Mandatory prescribing and dispensing standards related to controlled substances, the requirements of which shall include the diagnostic, treatment, review, and other protocols and standards established for Schedule II controlled substances and Schedule III controlled substances containing hydrocodone under KRS 218A.172 and which may include the exemptions authorized by KRS 218A.172 (4);
    2. In accord with the CDC Guideline for Prescribing Opioids for Chronic Pain published in 2016, a prohibition on a practitioner issuing a prescription for a Schedule II controlled substance for more than a three (3) day supply of a Schedule II controlled substance if the prescription is intended to treat pain as an acute medical condition, with the following exceptions:
      1. The practitioner, in his or her professional judgment, believes that more than a three (3) day supply of a Schedule II controlled substance is medically necessary to treat the patient’s pain as an acute medical condition and the practitioner adequately documents the acute medical condition and lack of alternative treatment options which justifies deviation from the three (3) day supply limit established in this subsection in the patient’s medical records;
      2. The prescription for a Schedule II controlled substance is prescribed to treat chronic pain;
      3. The prescription for a Schedule II controlled substance is prescribed to treat pain associated with a valid cancer diagnosis;
      4. The prescription for a Schedule II controlled substance is prescribed to treat pain while the patient is receiving hospice or end-of-life treatment or is receiving care from a certified community based palliative care program;
      5. The prescription for a Schedule II controlled substance is prescribed as part of a narcotic treatment program licensed by the Cabinet for Health and Family Services;
      6. The prescription for a Schedule II controlled substance is prescribed to treat pain following a major surgery or the treatment of significant trauma, as defined by the state licensing board in consultation with the Kentucky Office of Drug Control Policy;
      7. The Schedule II controlled substance is dispensed or administered directly to an ultimate user in an inpatient setting; or
      8. Any additional treatment scenario deemed medically necessary by the state licensing board in consultation with the Kentucky Office of Drug Control Policy. Nothing in this paragraph shall authorize a state licensing board to promulgate regulations which expand any practitioner’s prescriptive authority beyond that which existed prior to June 29, 2017;
    3. A prohibition on a practitioner dispensing greater than a forty-eight (48) hour supply of any Schedule II controlled substance or a Schedule III controlled substance containing hydrocodone unless the dispensing is done as part of a narcotic treatment program licensed by the Cabinet for Health and Family Services;
    4. A procedure for temporarily suspending, limiting, or restricting a license held by a named licensee where a substantial likelihood exists to believe that the continued unrestricted practice by the named licensee would constitute a danger to the health, welfare, or safety of the licensee’s patients or of the general public;
    5. A procedure for the expedited review of complaints filed against their licensees pertaining to the improper, inappropriate, or illegal prescribing or dispensing of controlled substances that is designed to commence an investigation within seven (7) days of a complaint being filed and produce a charging decision by the board on the complaint within one hundred twenty (120) days of the receipt of the complaint, unless an extension for a definite period of time is requested by a law enforcement agency due to an ongoing criminal investigation;
    6. The establishment and enforcement of licensure standards that conform to the following:
      1. A permanent ban on licensees and applicants convicted after July 20, 2012, in this state or any other state of any felony offense relating to controlled substances from prescribing or dispensing a controlled substance;
      2. Restrictions short of a permanent ban on licensees and applicants convicted in this state or any other state of any misdemeanor offense relating to prescribing or dispensing a controlled substance;
      3. Restrictions mirroring in time and scope any disciplinary limitation placed on a licensee or applicant by a licensing board of another state if the disciplinary action results from improper, inappropriate, or illegal prescribing or dispensing of controlled substances; and
      4. A requirement that licensees and applicants report to the board any conviction or disciplinary action covered by this subsection with appropriate sanctions for any failure to make this required report;
    7. A procedure for the continuous submission of all disciplinary and other reportable information to the National Practitioner Data Bank of the United States Department of Health and Human Services;
    8. If not otherwise required by other law, a process for submitting a query on each applicant for licensure to the National Practitioner Data Bank of the United States Department of Health and Human Services to retrieve any relevant data on the applicant; and
    9. Continuing education requirements beginning with the first full educational year occurring after July 1, 2012, that specify that at least seven and one-half percent (7.5%) of the continuing education required of the licensed practitioner relate to the use of the electronic monitoring system established in KRS 218A.202 , pain management, or addiction disorders.
  3. For the purposes of pharmacy dispensing, the medical necessity for a Schedule II controlled substance as documented by the practitioner in the patient’s medical record and the prescription for more than a three (3) day supply of that controlled substance are presumed to be valid.
  4. A state licensing board shall employ or obtain the services of a specialist in the treatment of pain and a specialist in drug addiction to evaluate information received regarding a licensee’s prescribing or dispensing practices related to controlled substances if the board or its staff does not possess such expertise, to ascertain if the licensee under investigation is engaging in improper, inappropriate, or illegal practices.
  5. Any statute to the contrary notwithstanding, no state licensing board shall require that a grievance or complaint against a licensee relating to controlled substances be sworn to or notarized, but the grievance or complaint shall identify the name and address of the grievant or complainant, unless the board by administrative regulation authorizes the filing of anonymous complaints. Any such authorizing administrative regulation shall require that an anonymous complaint or grievance be accompanied by sufficient corroborating evidence as would allow the board to believe, based upon a totality of the circumstances, that a reasonable probability exists that the complaint or grievance is meritorious.
  6. Every state licensing board shall cooperate to the maximum extent permitted by law with all state, local, and federal law enforcement agencies, and all professional licensing boards and agencies, state and federal, in the United States or its territories in the coordination of actions to deter the improper, inappropriate, or illegal prescribing or dispensing of a controlled substance.
  7. Each state licensing board shall require a fingerprint-supported criminal record check by the Department of Kentucky State Police and the Federal Bureau of Investigation of any applicant for initial licensure to practice any profession authorized to prescribe or dispense controlled substances.

History. Enact. Acts 2012 (1st Ex. Sess.), ch. 1, § 2, effective July 20, 2012; 2013, ch. 2, § 4, effective March 4, 2013; 2017 ch. 168, § 7, effective June 28, 2017; 2019 ch. 84, § 5, effective June 27, 2019.

218A.210. Controlled substances may be possessed only in original container — Penalties.

  1. A person to whom or for whose use any controlled substance has been prescribed, sold, or dispensed, by a practitioner or other person authorized under this chapter, may lawfully possess it only in the container in which it was delivered to him by the person selling or dispensing the same.
  2. Violation of subsection (1) of this section is a Class B misdemeanor for the first offense and a Class A misdemeanor for subsequent offenses.

History. Enact. Acts 1972, ch. 226, § 22; 1992, ch. 441, § 6, effective July 14, 1992.

NOTES TO DECISIONS

Cited:

Kentucky Bar Ass’n v. White, 865 S.W.2d 302, 1993 Ky. LEXIS 165 ( Ky. 1993 ).

Notes to Unpublished Decisions

1.Supervised Release.

Unpublished decision: Where defendant allegedly violated supervised release conditions by, inter alia, violating a state law against keeping a prescription in a container other than that in which it was delivered to defendant, defendant waived the argument that defendant did not violate supervised release because defendant acknowledged the violations occurred. United States v. Earle, 364 Fed. Appx. 211, 2010 FED App. 0076N, 2010 U.S. App. LEXIS 2465 (6th Cir. Ky. 2010 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part. 4 Miscellaneous KRS 218A Offenses, § 9.31.

218A.220. Persons exempt from chapter.

The provisions of this chapter shall not apply to common carriers or to warehousemen, while engaged in lawfully transporting or storing such substances, or to any employee of the same acting within the scope of his employment; or to public officers or their employees in the performance of their official duties requiring possession or control of controlled substances; or to temporary incidental possession by employees or agents of persons lawfully entitled to possession, or by persons whose possession is for the purpose of aiding public officers in performing their official duties.

History. Enact. Acts 1972, ch. 226, § 23; 2005, ch. 85, § 627, effective June 20, 2005.

NOTES TO DECISIONS

1.Agent.

An agent within the meaning of this section must have knowledge that the person for whom he is acting is a police officer. Harris v. Commonwealth, 579 S.W.2d 111, 1979 Ky. LEXIS 237 ( Ky. 1979 ).

Where defendant who procured heroin for undercover detective was not aware of detective’s status, defendant was not an agent under this section and was not entitled to a directed verdict of acquittal. Harris v. Commonwealth, 579 S.W.2d 111, 1979 Ky. LEXIS 237 ( Ky. 1979 ).

2.Instructions to Jury.

Defendant was entitled to an innocent possession instruction under KRS 218A.1412 or 218A.220 because he offered evidence that he came into incidental possession of the drugs when he found them in his brother’s driveway, and he attempted to call the sheriff to report them but was arrested before he was able to turn them in. Commonwealth v. Adkins, 331 S.W.3d 260, 2011 Ky. LEXIS 11 ( Ky. 2011 ).

218A.230. Controlled substances — Possession, forfeiture, disposition — Records, inspection.

All controlled substances, the lawful possession of which is not established or the title to which cannot be ascertained, which have come into the custody of a peace officer, shall be forfeited and disposed of as follows:

  1. Except as otherwise provided in this section, the court having jurisdiction shall order such controlled substances forfeited and destroyed. A record of the place where said drugs were seized, of the kinds and quantities of drugs so destroyed, and of the time, place, and manner of destruction, shall be kept.
  2. The court by whom the forfeiture of controlled substances has been decreed may order the delivery of same to the Cabinet for Health and Family Services for destruction. Practitioners, pharmacists, hospitals, and nursing homes may voluntarily surrender controlled substances to the Cabinet for Health and Family Services for destruction.
  3. The Cabinet for Health and Family Services shall keep a record of all substances received and of all substances disposed of, showing the exact kinds, quantities, and forms of such substances, the persons from whom received and the time, place, and manner of destruction.
  4. Prescriptions, orders, and records, required by this chapter, and stocks of controlled substances, shall be open for inspection only to federal, state, county, and municipal officers, whose duty it is to enforce the laws of this state or of the United States relating to controlled substances.
  5. No pharmacist, practitioner, manufacturer, or wholesaler or other custodian of records, prescriptions, or orders required by this chapter shall refuse to permit the inspection thereof by any federal, state, county or municipal officer whose duty it is to enforce the laws of this state or of the United States relating to controlled substances.

History. Enact. Acts 1972, ch. 226, §§ 24, 25; 1974, ch. 74, Art. VI, § 107(3); 1998, ch. 426, § 486, effective July 15, 1998; 2005, ch. 99, § 545, effective June 20, 2005.

Opinions of Attorney General.

The safekeeping of seized drugs rests with the peace officer, law enforcement officer or department agent who is authorized to seize such evidence. OAG 79-159 .

Neither subsection (5) of this section nor subsection (2) of KRS 311.605 empowers the investigators of the Board of Medical Licensure to inspect pharmacies or pharmacy records. OAG 86-13 .

218A.240. Controlled substances — Duties and authority of state and local officers, Cabinet for Health and Family Services, and Kentucky Board of Pharmacy — Civil proceedings — Identification of trends — Identification of prescribers, dispensers, and patients for licensing board — Review of hospital’s or health care facility’s prescribing and dispensing practices — Notice to patients of practitioner’s loss of prescribing privileges.

  1. All police officers and deputy sheriffs directly employed full-time by state, county, city, urban-county, or consolidated local governments, the Department of Kentucky State Police, the Cabinet for Health and Family Services, their officers and agents, and of all city, county, and Commonwealth’s attorneys, and the Attorney General, within their respective jurisdictions, shall enforce all provisions of this chapter and cooperate with all agencies charged with the enforcement of the laws of the United States, of this state, and of all other states relating to controlled substances.
  2. For the purpose of enforcing the provisions of this chapter, the designated agents of the Cabinet for Health and Family Services shall have the full power and authority of peace officers in this state, including the power of arrest and the authority to bear arms, and shall have the power and authority to administer oaths; to enter upon premises at all times for the purpose of making inspections; to seize evidence; to interrogate all persons; to require the production of prescriptions, of books, papers, documents, or other evidence; to employ special investigators; and to expend funds for the purpose of obtaining evidence and to use data obtained under KRS 218A.202 in any administrative proceeding before the cabinet.
  3. The Kentucky Board of Pharmacy, its agents and inspectors, shall have the same powers of inspection and enforcement as the Cabinet for Health and Family Services.
  4. Designated agents of the Cabinet for Health and Family Services and the Kentucky Board of Pharmacy are empowered to remove from the files of a pharmacy or the custodian of records for that pharmacy any controlled substance prescription or other controlled substance record upon tendering a receipt. The receipt shall be sufficiently detailed to accurately identify the record. A receipt for the record shall be a defense to a charge of failure to maintain the record.
  5. Notwithstanding the existence or pursuit of any other remedy, civil or criminal, any law enforcement authority may maintain, in its own name, an action to restrain or enjoin any violation of this chapter or to forfeit any property subject to forfeiture under KRS 218A.410 , irrespective of whether the owner of the property has been charged with or convicted of any offense under this chapter.
    1. Any civil action against any person brought pursuant to this section may be instituted in the Circuit Court in any county in which the person resides, in which any property owned by the person and subject to forfeiture is found, or in which the person has violated any provision of this chapter.
    2. A final judgment rendered in favor of the Commonwealth in any criminal proceeding brought under this chapter shall estop the defendant from denying the essential allegations of the criminal offense in any subsequent civil proceeding brought pursuant to this section.
    3. The prevailing party in any civil proceeding brought pursuant to this section shall recover his or her costs, including a reasonable attorney’s fee.
    4. Distribution of funds under this section shall be made in the same manner as in KRS 218A.420 , except that if the Commonwealth’s attorney has not initiated the forfeiture action under this section, his or her percentage of the funds shall go to the agency initiating the forfeiture action.
  6. The Cabinet for Health and Family Services shall make or cause to be made examinations of samples secured under the provisions of this chapter to determine whether any provision has been violated.
    1. The Cabinet for Health and Family Services shall proactively use the data compiled in the electronic system created in KRS 218A.202 for investigations, research, statistical analysis, and educational purposes and shall proactively identify trends in controlled substance usage and other potential problem areas. Only cabinet personnel who have undergone training for the electronic system and who have been approved to use the system shall be authorized access to the data and reports under this subsection. The cabinet shall notify a state licensing board listed in KRS 218A.205 if a report or analysis conducted under this subsection indicates that further investigation about improper, inappropriate or illegal prescribing or dispensing may be necessary by the board. The board shall consider each report and may, after giving due consideration to areas of practice, specialties, board certifications, and appropriate standards of care, request and receive a follow-up report or analysis containing relevant information as to the prescriber or dispenser and his or her patients. (7) (a) The Cabinet for Health and Family Services shall proactively use the data compiled in the electronic system created in KRS 218A.202 for investigations, research, statistical analysis, and educational purposes and shall proactively identify trends in controlled substance usage and other potential problem areas. Only cabinet personnel who have undergone training for the electronic system and who have been approved to use the system shall be authorized access to the data and reports under this subsection. The cabinet shall notify a state licensing board listed in KRS 218A.205 if a report or analysis conducted under this subsection indicates that further investigation about improper, inappropriate or illegal prescribing or dispensing may be necessary by the board. The board shall consider each report and may, after giving due consideration to areas of practice, specialties, board certifications, and appropriate standards of care, request and receive a follow-up report or analysis containing relevant information as to the prescriber or dispenser and his or her patients.
    2. The cabinet shall develop criteria, in collaboration with the Board of Medical Licensure, the Board of Nursing, the Office of Drug Control Policy, and the Board of Pharmacy, to be used to generate public trend reports from the data obtained by the system. Meetings at which the criteria are developed shall be meetings, as defined in KRS 61.805 , that comply with the open meetings laws, KRS 61.805 to 61.850 . The cabinet shall, on a quarterly basis, publish trend reports from the data obtained by the system. Except as provided in subsection (8) of this section, these trend reports shall not identify an individual prescriber, dispenser, or patient. Peace officers authorized to receive data under KRS 218A.202 may request trend reports not specifically published pursuant to this paragraph except that the report shall not identify an individual prescriber, dispenser, or patient.
  7. If the cabinet deems it to be necessary and appropriate, upon the request of a state licensing board listed in KRS 218A.205 , the cabinet shall provide the requesting board with the identity of prescribers, dispensers, and patients used to compile a specific trend report.
  8. Any hospital or other health care facility may petition the cabinet to review data from the electronic system specified in KRS 218A.202 as it relates to employees of that facility to determine if inappropriate prescribing or dispensing practices are occurring. The cabinet may initiate any investigation in such cases as he or she determines is appropriate, and may request the assistance from the hospitals or health care facilities in the investigation.
  9. If the office or clinic of a practitioner abruptly closes or is subject to emergency closure or other enforcement action resulting in a suspension or termination of the practitioner’s controlled substance prescribing privileges, the Cabinet for Health and Family Services or applicable professional licensing board may use data from the electronic system established under KRS 218A.202 to issue notification as soon as practicable to the practitioner’s patients to help prevent the disruption of medical treatment and promote continuity of care.

History. Enact. Acts 1972, ch. 226, § 26; 1974, ch. 74, Art. VI, § 107(3); 1992, ch. 441, § 28, effective July 14, 1992; 1998, ch. 301, § 26, effective July 15, 1998; 1998, ch. 426, § 487, effective July 15, 1998; 2004, ch. 68, § 2, effective July 13, 2004; 2004, ch. 107, § 2, effective July 13, 2004; 2005, ch. 99, § 546, effective June 20, 2005; 2007, ch. 85, § 253, effective June 26, 2007; 2007, ch. 124, § 14, effective June 26, 2007; 2012, ch. 1 (1st Ex. Sess.), § 5, effective July 20, 2012; 2017 ch. 138, § 2, effective June 29, 2017; 2020 ch. 20, § 1, effective July 15, 2020.

NOTES TO DECISIONS

1.Attorney General.

Because there was no proper invitation for the Kentucky Attorney General to initiate or participate in an investigation or prosecution of appellant in a certain county under KRS 15.200 , the Attorney General was without authority to initiate an investigation into controlled substance violations, which led to appellant’s grand jury indictment. Based on an incorrect interpretation of KRS 218A.240(1), it was error to deny appellant’s motion to dismiss his indictments. Johnson v. Commonwealth, 2012 Ky. App. LEXIS 10 (Ky. Ct. App., sub. op., 2012 Ky. App. Unpub. LEXIS 1005 (Ky. Ct. App. Jan. 20, 2012).

Detective, as an officer working under the auspices of a local prosecutor’s office and an agent of the attorney general’s office, was cloaked with the same immunity protections as a prosecutor, for purposes of KRS 218A.240(1), 15.020 . Williams v. Cline, 2012 Ky. App. LEXIS 68 (Ky. Ct. App. Apr. 20, 2012), review denied, ordered not published, 2012 Ky. LEXIS 467 (Ky. Dec. 12, 2012).

Where the Court of Appeals of Kentucky reversed a trial court’s denial of defendant’s motion to dismiss the indictment, KRS 218A.240(1) provided the Office of the Attorney General (OAG) with clear authority to make arrests regarding controlled substances, and the indictments were valid. KRS 15.020 had nothing to do with the investigative authority of the OAG, other than recognizing that which may have existed at common law, and KRS 15.200(1) was a limitation on the prosecutorial authority of the OAG. Commonwealth v. Johnson, 423 S.W.3d 718, 2014 Ky. LEXIS 87 ( Ky. 2014 ).

2.Cooperation.

Defendant’s argument that the deputies’ activities were extra-jurisdictional and unauthorized was legally wrong, leaving both his motion to suppress and his motion to dismiss without a factual or legal foundation, because the Boyle County deputies properly received verbal authorization from the Lincoln County Sheriff’s Department before proceeding with the controlled buy at a Lincoln County restaurant. Pope v. Commonwealth, 617 S.W.3d 364, 2021 Ky. LEXIS 17 ( Ky. 2021 ).

Opinions of Attorney General.

No one other than agents of the Cabinet for Human Resources (now Health and Family Services), agents of the Office of the Attorney General, and agents of the Board of Pharmacy may seize controlled substance records from a pharmacy without a warrant. OAG 86-13 .

Only those specifically authorized to conduct a warrantless inspection may seize evidence under this section; however, the police can search and seize records without a warrant when there is traditional probable cause to believe a criminal violation is occurring or has occurred and exigent circumstance exist. OAG 86-13 .

Records or evidence seized under subsections (2) and (3) of this section and subsection (2) of KRS 311.605 respectively by agents of the Cabinet for Human Resources (now Health and Family Services) and agents from the Office of the Attorney General from any place where drugs are legally kept, records or evidence seized by pharmacy inspectors from pharmacies, and records or evidence seized by investigators of the Board of Medical Licensure from licensed premises may be shared with the police, even though the police do not have sufficient cause to seize the items themselves. OAG 86-13 .

The basis for a warrantless administrative inspection conducted by agents of the Cabinet for Human Resources (now Health and Family Services) and inspectors of the Board of Pharmacy, and a warrantless criminal inspection conducted by agents of the Office of Attorney General with respect to controlled substance violations is set forth in subsection (1) of KRS 217.155 , subsection (1) of KRS 217.215 , and subsections (2) and (3) of this section; the standard for such an inspection is less than that which is required of police officers. OAG 86-13 .

This section requires in effect that all peace officers in Kentucky, State Police Officers, all employees of the Cabinet for Human Resources (now Health and Family Services), and all prosecutors enforce the laws against drug trafficking and cooperate with all governmental agencies. OAG 92-104 .

Since ordinances banning pain clinics are not the subject of an express power granted to local governmental units by the General Assembly, and infringe upon the legislative policy embodied in statutes regulating the practice of medicine and distribution of controlled substances, such ordinances are beyond the legitimate authority of a unit of local government. OAG 11-003 , 2011 Ky. AG LEXIS 54.

218A.245. Reciprocal agreements or contracts with other states, jurisdictions, counties, or political subdivisions, or with an administering organization to share prescription drug monitoring information.

  1. The secretary of the Cabinet for Health and Family Services may enter into reciprocal agreements or a contract, either directly with any other state or states of the United States or any jurisdiction, county, or political subdivision thereof, or with an organization administering the exchange of interstate data on behalf of the prescription monitoring program of one (1) or more states or jurisdictions, to share prescription drug monitoring information if the other prescription drug monitoring program or data exchange program is compatible with the program in Kentucky. If the secretary elects to evaluate the prescription drug monitoring program of another state, jurisdiction, or organization as authorized by this section, priority shall be given to a state or jurisdiction that is contiguous with the borders of the Commonwealth or an organization that offers connectivity with a contiguous state or jurisdiction.
  2. In determining compatibility, the secretary shall consider:
    1. The essential purposes of the program and the success of the program in fulfilling those purposes;
    2. The safeguards for privacy of patient records and its success in protecting patient privacy;
    3. The persons authorized to view the data collected by the program;
    4. The schedules of controlled substances monitored;
    5. The data required to be submitted on each prescription or dispensing;
    6. Any implementation criteria deemed essential for a thorough comparison; and
    7. The costs and benefits to the Commonwealth in mutually sharing particular information available in the Commonwealth’s database with the program under consideration.
  3. The secretary shall review any agreement on an annual basis to determine its continued compatibility with the Kentucky prescription drug monitoring program.
  4. Any agreement between the cabinet and another state, jurisdiction, or organization shall prohibit the sharing of information about a Kentucky resident, practitioner, pharmacist, or other prescriber or dispenser for any purpose not otherwise authorized by this section or KRS 218A.202 .

History. Enact. Acts 2004, ch. 107, § 3, effective July 13, 2004; 2005, ch. 99, § 547, effective June 20, 2005; 2012 (1st Ex. Sess.), ch. 1, § 6, effective July 20, 2012; 2018 ch. 30, § 1, effective July 14, 2018; 2020 ch. 20, § 2, effective July 15, 2020.

218A.250. Regulations — Hearings.

The Cabinet for Health and Family Services shall promulgate administrative regulations pursuant to KRS Chapter 13A for carrying out the provisions of this chapter. Administrative hearings on appeals filed pursuant to this chapter shall be conducted in accordance with KRS Chapter 13B.

History. Enact. Acts 1972, ch. 226, § 27; 1974, ch. 74, Art. VI, § 107(3); 1996, ch. 318, § 128, effective July 15, 1996; 1998, ch. 426, § 488, effective July 15, 1998; 2005, ch. 99, § 548, effective June 20, 2005.

218A.260. Controlled substances — Violation — Use of confidential informants. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 226, § 28; 1976 (Ex. Sess.), ch. 14, § 209, effective January 2, 1978) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law see Kentucky Rules of Evidence, Rule 508.

218A.270. Substances and property, subject to forfeiture — Procedure and exemptions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 226, § 29; 1978, ch. 124, § 1, effective June 17, 1978; 1982, ch. 419, § 3, effective July 15, 1982) was repealed by Acts 1984, ch. 101, § 8, effective July 13, 1984.

218A.274. Pregnant women to receive priority by state-funded substance abuse treatment or recovery service providers.

Substance abuse treatment or recovery service providers that receive state funding shall give pregnant women priority in accessing services and shall not refuse access to services solely due to pregnancy as long as the provider’s services are appropriate for pregnant women.

HISTORY: 2015 ch. 66, § 12, effective March 25, 2015; 2015 ch. 82, § 1, effective June 24, 2015.

Legislative Research Commission Note.

(3/25/2015). This statute was created with identical text in 2015 Ky. Acts chs. 66 and 82. These Acts have been codified together.

218A.275. Assessment and treatment program for first offenders of possession of controlled substance — Rescission of treatment order — Voiding of conviction — Sealing of records.

  1. A court may request the Division of Probation and Parole to perform a risk and needs assessment for any person found guilty of possession of a controlled substance pursuant to KRS 218A.1415 , 218A.1416 , or 218A.1417 . The assessor shall make a recommendation to the court as to whether treatment is indicated by the assessment, and, if so, the most appropriate treatment or recovery program environment. If treatment is indicated for the person, the court may order him or her to the appropriate treatment or recovery program that will effectively respond to the person’s level of risk, criminal risk factors, and individual characteristics as designated by the secretary of the Cabinet for Health and Family Services where a program of treatment or recovery not to exceed one (1) year in duration may be prescribed. The person ordered to the designated treatment or recovery program shall present himself or herself for registration and initiation of the treatment or recovery program within five (5) days of the date of sentencing. If, without good cause, the person fails to appear at the designated treatment or recovery program within the specified time, or if at any time during the program of treatment or recovery prescribed, the authorized director of the treatment or recovery program finds that the person is unwilling to participate in his or her treatment, the director shall notify the sentencing court. Upon receipt of notification, the court shall cause the person to be brought before it and may continue the order of treatment, or may rescind the treatment order and impose a sentence for the possession offense. Upon discharge of the person from the treatment or recovery program by the secretary of the Cabinet for Health and Family Services, or his or her designee, prior to the expiration of the one (1) year period or upon satisfactory completion of one (1) year of treatment, the person shall be deemed finally discharged from sentence. The secretary, or his or her designee, shall notify the sentencing court of the date of such discharge from the treatment or recovery program.
  2. The secretary of the Cabinet for Health and Family Services, or his or her designee, shall inform each court of the identity and location of the treatment or recovery program to which the person is sentenced.
  3. Transportation to an inpatient facility shall be provided by order of the court when the court finds the person unable to convey himself or herself to the facility within five (5) days of sentencing by reason of physical infirmity or financial incapability.
  4. The sentencing court shall immediately notify the designated treatment or recovery program of the sentence and its effective date.
  5. The secretary for health and family services, or his or her designee, may authorize transfer of the person from the initially designated treatment or recovery program to another treatment or recovery program for therapeutic purposes. The sentencing court shall be notified of termination of treatment by the terminating treatment or recovery program and shall be notified by the secretary of the new treatment or recovery program to which the person was transferred.
  6. Responsibility for payment for treatment services rendered to persons pursuant to this section shall be as under the statutes pertaining to payment of patients and others for services rendered by the Cabinet for Health and Family Services, unless the person and the treatment or recovery program shall arrange otherwise.
  7. None of the provisions of this section shall be deemed to preclude the court from exercising its usual discretion with regard to ordering probation or conditional discharge.
  8. Except as provided in subsection (12) of this section, in the case of any person who has been convicted for the first time of possession of controlled substances, the court may set aside and void the conviction upon satisfactory completion of treatment, probation, or other sentence, and issue to the person a certificate to that effect. A conviction voided under this subsection shall not be deemed a first offense for purposes of this chapter or deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. Voiding of a conviction under this subsection and dismissal may occur only once with respect to any person.
  9. If the court voids a conviction under this section, the court shall order the sealing of all records in the custody of the court and any records in the custody of any other agency or official, including law enforcement records, except as provided in KRS 27A.099 . The court shall order the sealing on a form provided by the Administrative Office of the Courts. Every agency with records relating to the arrest, charge, or other matters arising out of the arrest or charge that is ordered to seal records, shall certify to the court within sixty (60) days of the entry of the order that the required sealing action has been completed.
  10. After the sealing of the record, the proceedings in the matter shall not be used against the defendant except for the purposes of determining the person’s eligibility to have his or her conviction voided under subsection (8) of this section. The court and other agencies shall reply to any inquiry that no record exists on the matter. The person whose record has been sealed shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application.
  11. Inspection of the sealed records may thereafter be permitted by the court pursuant to KRS 27A.099 or upon a motion by the person who is the subject of the records and only to those persons named in the motion or upon a motion of the prosecutor to verify a defendant’s eligibility to have his or her conviction voided under subsection (8) of this section.
  12. A person who has previously had a charge of possession of controlled substances dismissed after completion of a deferred prosecution under KRS 218A.14151 shall not be eligible for voiding of conviction under this section.

History. Enact. Acts 1992, ch. 441, § 9, effective July 28, 1992; 1998, ch. 426, § 489, effective July 15, 1998; 2005, ch. 99, § 549, effective June 20, 2005; 2011, ch. 2, § 21, effective June 8, 2011; 2012, ch. 156, § 8, effective July 12, 2012.

NOTES TO DECISIONS

1.Applicability.

Trial court properly granted the motion to reconsider pursuant to CR 52.02 seeking to void the movant’s 1993 conviction for illegal possession of cocaine under KRS 218A.1415 ; the trial court properly found that, under KRS 218A.275(9), it had the authority to void the felony cocaine possession conviction upon the presentation of evidence that the movant completed a drug treatment program. Commonwealth v. Bowles, 107 S.W.3d 912, 2003 Ky. App. LEXIS 132 (Ky. Ct. App. 2003).

Reading KRS 218A.275(9) in accordance with KRS 446.080(1), the provisions of KRS 218A.275(9) apply to a first-time felony possession of cocaine offense under KRS 218A.1415 ; the limitations under KRS 218A.275(1), limiting the treatment program only to convictions under KRS 218A.1416 and 218A.1417 , are not applicable to KRS 218A.275(9). Commonwealth v. Bowles, 107 S.W.3d 912, 2003 Ky. App. LEXIS 132 (Ky. Ct. App. 2003).

2.Expungement.

Where the trial court only voided the movant’s convictions for illegal possession of cocaine and marijuana under the provisions for such a procedure under KRS 218A.275(9) and 218A.276(8), the trial court clerk erred in stating in the trial court’s order that the movant’s record was to be expunged, as there was nothing in the trial judge’s order to indicate that expungement was intended. Commonwealth v. Bowles, 107 S.W.3d 912, 2003 Ky. App. LEXIS 132 (Ky. Ct. App. 2003).

Because the trial court’s voiding and dismissing defendant’s conviction under KRS 218A.275(9) brought that offense within the parameters of KRS 431.076 , which permitted the expungement of a charge dismissed with prejudice, expungement of defendant’s felony conviction was proper. Commonwealth v. Jones, 2012 Ky. App. LEXIS 30 (Ky. Ct. App. Feb. 10, 2012), rev'd, 406 S.W.3d 857, 2013 Ky. LEXIS 377 ( Ky. 2013 ).

Where defendant pled guilty to illegal possession of a controlled substance in the first degree, a Class D felony, and successfully completed probation, the trial court lacked statutory authority to expunge the felony conviction. After the conviction was voided pursuant to KRS 218A.275 , the voided conviction was not tantamount to a charge dismissed with prejudice for purposes of the expungement statute, KRS 218A.275 . Commonwealth v. Jones, 406 S.W.3d 857, 2013 Ky. LEXIS 377 ( Ky. 2013 ).

218A.276. Assessment and treatment program for possessors of marijuana, synthetic drugs, or salvia — Rescission of treatment order — Voiding of conviction — Sealing of records.

  1. A court may request the Division of Probation and Parole to perform a risk and needs assessment for any person found guilty of possession of marijuana pursuant to KRS 218A.1422 , synthetic drugs pursuant to KRS 218A.1430 , or salvia pursuant to KRS 218A.1451 . The assessor shall make a recommendation to the court as to whether treatment is indicated by the assessment, and, if so, the most appropriate treatment or recovery program environment. If treatment is indicated for the person, the court may order him or her to the appropriate treatment or recovery program as indicated by the assessment that will effectively respond to the person’s level of risk, criminal risk factors, and individual characteristics as designated by the secretary of the Cabinet for Health and Family Services where a program of treatment or recovery not to exceed ninety (90) days in duration may be prescribed. The person ordered to the designated treatment or recovery program shall present himself or herself for registration and initiation of the treatment or recovery program within five (5) days of the date of sentencing. If, without good cause, the person fails to appear at the designated treatment or recovery program within the specified time, or if any time during the program of treatment or recovery prescribed, the authorized director of the treatment or recovery program finds that the person is unwilling to participate in his or her treatment, the director shall notify the sentencing court. Upon receipt of notification, the court shall cause the person to be brought before it and may continue the order of treatment, or may rescind the treatment order and impose a sentence for the possession offense. Upon discharge of the person from the treatment or recovery program by the secretary of the Cabinet for Health and Family Services, or his or her designee, prior to the expiration of the ninety (90) day period or upon satisfactory completion of ninety (90) days of treatment, the person shall be deemed finally discharged from sentence. The secretary, or his or her designee, shall notify the sentencing court of the date of such discharge from the treatment or recovery program.
  2. The secretary of the Cabinet for Health and Family Services, or his or her designee, shall inform each court of the identity and location of the treatment or recovery program to which a person sentenced by that court under this chapter shall be initially ordered.
  3. In the case of a person ordered to an inpatient facility for treatment pursuant to this chapter, transportation to the facility shall be provided by order of the court when the court finds the person unable to convey himself or herself to the facility within five (5) days of sentencing by reason of physical infirmity or financial incapability.
  4. The sentencing court shall immediately notify the designated treatment or recovery program of the sentence and its effective date.
  5. The secretary of the Cabinet for Health and Family Services, or his or her designee, may authorize transfer of the person from the initially designated treatment or recovery program to another treatment or recovery program for therapeutic purposes. The sentencing court shall be notified of termination of treatment by the terminating treatment or recovery program and shall be notified by the secretary or his or her designee of the new treatment or recovery program to which the person was transferred.
  6. Responsibility for payment for treatment services rendered to persons pursuant to this section shall be as under the statutes pertaining to payment by patients and others for services rendered by the Cabinet for Health and Family Services, unless the person and the treatment or recovery program shall arrange otherwise.
  7. None of the provisions of this section shall be deemed to preclude the court from exercising its usual discretion with regard to ordering probation, presumptive probation, or conditional discharge.
  8. In the case of any person who has been convicted of possession of marijuana, synthetic drugs, or salvia, the court may set aside and void the conviction upon satisfactory completion of treatment, probation, or other sentence, and issue to the person a certificate to that effect. A conviction voided under this subsection shall not be deemed a first offense for purposes of this chapter or deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.
  9. If the court voids a conviction under this section, the court shall order the sealing of all records in the custody of the court and any records in the custody of any other agency or official, including law enforcement records, except as provided in KRS 27A.099 . The court shall order the sealing on a form provided by the Administrative Office of the Courts. Every agency with records relating to the arrest, charge, or other matters arising out of the arrest or charge that is ordered to seal records, shall certify to the court within sixty (60) days of the entry of the order that the required sealing action has been completed.
  10. After the sealing of the record, the proceedings in the matter shall not be used against the defendant. The court and other agencies shall reply to any inquiry that no record exists on the matter. The person whose record is sealed shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application.
  11. Inspection of the sealed records may thereafter be permitted by the court or upon a motion by the person who is the subject of the records and only to those persons named in the motion.

History. Enact. Acts 1992, ch. 441, § 10, effective July 14, 1992; 1998, ch. 426, § 490, effective July 15, 1998; 2005, ch. 99, § 550, effective June 20, 2005; 2010, ch. 149, § 12, effective April 13, 2010; 2010, ch. 160, § 12, effective April 26, 2010; 2011, ch. 2, § 22, effective June 8, 2011; 2011, ch. 45, § 11, effective March 16, 2011; 2012, ch. 108, § 11, effective April 11, 2012.

Legislative Research Commission Note.

(12/14/2010). During codification, a reference to KRS 218A.1451 relating to the possession of salvia in subsection (1) of this statute was inadvertently omitted from the final text reflecting the merger of the amendments to this statute in 2010 Ky. Acts chs. 149 and 160. The Reviser of Statutes has corrected this manifest clerical or typographical error.

NOTES TO DECISIONS

1.Expungement.

Where the trial court only voided the movant’s convictions for illegal possession of cocaine and marijuana under the provisions for such a procedure under KRS 218A.275(9) and 218A.276(8), the trial court clerk erred in stating in the trial court’s order that the movant’s record was to be expunged, as there was nothing in the trial judge’s order to indicate that expungement was intended. Commonwealth v. Bowles, 107 S.W.3d 912, 2003 Ky. App. LEXIS 132 (Ky. Ct. App. 2003).

218A.278. Pilot program to analyze outcomes and effectiveness of substance abuse treatment programs.

  1. For the purposes of this section:
    1. “Analyze” means to apply scientific and mathematical measures to determine meaningful patterns and associations in data. “Analyze” includes descriptive analysis to examine historical data, predictive analysis to examine future probabilities and trends, and prescriptive analysis to examine how future decisions may impact the population and trends; and
    2. “Pilot program” means a program in a county or set of counties, or a subset or subsets of the population, as designated by the Cabinet for Health and Family Services and the Office of Drug Control Policy for analyzing the effectiveness of substance abuse treatment services in Kentucky.
  2. The general purpose of this section is to assist in the development of a pilot program to analyze the outcomes and effectiveness of substance abuse treatment programs in order to ensure that the Commonwealth is:
    1. Addressing appropriate risk and protective factors for substance abuse in a defined population;
    2. Using approaches that have been shown to be effective;
    3. Intervening early at important stages and transitions;
    4. Intervening in appropriate settings and domains; and
    5. Managing programs effectively.
  3. Sources of data for the pilot program shall include, at a minimum, claims under the Kentucky Department for Medicaid Services, the electronic monitoring system for controlled substances established under KRS 218A.202 , and the Department of Workers’ Claims within the Labor Cabinet.
  4. As funds are available, the Cabinet for Health and Family Services and the Office of Drug Control Policy shall initiate a pilot program to determine, collect, and analyze performance measurement data for substance abuse treatment services to determine practices that reduce frequency of relapse, provide better outcomes for patients, hold patients accountable, and control health costs related to substance abuse.
  5. By December 31, 2016, the Cabinet for Health and Family Services and the Office of Drug Control Policy shall issue a joint report to the Legislative Research Commission and the Office of the Governor that:
    1. Details the findings of the pilot program;
    2. Includes recommendations based on the pilot program’s results for optimizing substance abuse treatment services; and
    3. Includes recommendations for the continued application of analytics to further augment Kentucky’s approach to fighting substance abuse in the future.

HISTORY: 2015 ch. 66, § 9, effective March 25, 2015.

218A.280. Controlled substances — Communications with practitioner not privileged.

Information communicated to a practitioner in an effort unlawfully to procure a controlled substance, or unlawfully to procure the administration of any controlled substance, shall not be deemed a privileged communication.

History. Enact. Acts 1972, ch. 226, § 30.

NOTES TO DECISIONS

Cited:

Stidham v. Clark, 74 S.W.3d 719, 2002 Ky. LEXIS 99 ( Ky. 2002 ).

Research References and Practice Aids

Kentucky Law Journal.

Smith, Medical and Psychotherapy Privileges and Confidentiality: On Giving With One Hand and Removing With the Other, 75 Ky. L.J. 473 (1986-87).

218A.281. Applicability of definitions in KRS 516.010 to KRS 218A.282 and 218A.284.

For purposes of KRS 218A.282 and 218A.284 , the definitions found in KRS 516.010 apply.

History. Enact. Acts 1998, ch. 301, § 18, effective July 15, 1998.

218A.282. Forgery of a prescription.

  1. A person is guilty of forgery of a prescription when, with intent to defraud, deceive, or injure another, he falsely makes, completes, or alters a written instrument which is or purports to be or which is calculated to become or to represent a prescription for a controlled substance when completed.
  2. Forgery of a prescription is:
    1. For a first offense, a Class D felony.
    2. For a second or subsequent offense, a Class C felony.

History. Enact. Acts 1998, ch. 301, § 16, effective July 15, 1998.

218A.284. Criminal possession of a forged prescription.

  1. A person is guilty of criminal possession of a forged prescription when, with knowledge that it is forged and with intent to defraud, deceive, or injure another, he utters or possesses a forged prescription for a controlled substance.
  2. Criminal possession of a forged prescription is:
    1. For a first offense, a Class D felony.
    2. For a second or subsequent offense, a Class C felony.

History. Enact. Acts 1998, ch. 301, § 17, effective July 15, 1998.

218A.286. Theft, criminal possession, trafficking, or unlawful possession of a prescription or blank.

  1. A person is guilty of theft of a prescription blank when he unlawfully takes or exercises control over a prescription blank belonging to another.
  2. A person is guilty of criminal possession of a prescription blank when, with knowledge that he has no lawful authority to possess a prescription blank, he possesses a prescription blank with the intent to utter a forged prescription or sell or transfer the prescription blank to another person for that purpose.
  3. A person is guilty of trafficking in prescription blanks when he knowingly and unlawfully traffics in a prescription blank or a forged prescription for a controlled substance.
  4. The knowing, with intent to violate this chapter, possession of a prescription blank by a person other than a pharmacist, practitioner, or other person authorized by law to prescribe or dispense a controlled substance, a manufacturer, wholesaler, or distributor, or by a person lawfully printing or reproducing prescription blanks, shall be prima facie evidence that the prescription blank was possessed for the purpose of uttering a forged prescription or for sale or transfer to another person for that purpose.
  5. Any person who violates any subsection of this section shall be guilty of a Class D felony for the first offense and a Class C felony for a second or subsequent offense.

History. Enact. Acts 1998, ch. 301, § 19, effective July 15, 1998.

NOTES TO DECISIONS

1.Sufficient Evidence.

There was sufficient evidence to support convictions under this statute because defendant's nonparticipation in the act of forgery was immaterial, and the fact that a health care worker was given access to pre-signed prescription blanks did not mean that the prescriptions were not forged. The health care worker's apparent authority to prescribe controlled substances did not defend defendant from knowingly possessing forged prescriptions with the intent to sell them. Early v. Commonwealth, 470 S.W.3d 729, 2015 Ky. LEXIS 1871 ( Ky. 2015 ).

Defendant was not entitled to a directed verdict because a jury could reasonably infer his intent to sell one prescription from his sale of four additional Lortab prescriptions. That proved he possessed the prescription with the intent to sell it, which was sufficient for a trafficking conviction. Early v. Commonwealth, 470 S.W.3d 729, 2015 Ky. LEXIS 1871 ( Ky. 2015 ).

2.Double Jeopardy.

Five convictions under this statute did not violate double jeopardy because it clearly defined a trafficking offense as relating to a prescription, the Kentucky Legislature's use of the singular “a forged prescription” demonstrated its intention to punish the trafficking of each forged prescription as a separate and distinct trafficking offense, and the Legislature drafted criminal statutes to specify certain acts or quantities that might have been included in a singular crime when it intended to bar a continuing course of conduct. Early v. Commonwealth, 470 S.W.3d 729, 2015 Ky. LEXIS 1871 ( Ky. 2015 ).

218A.288. Seizure of unlawful prescription.

  1. A pharmacist, practitioner, or other person authorized by law to dispense controlled substances, or an employee of that person, may seize and retain any prescription which he has reasonable suspicion for believing is forged, altered, or deceitful in violation of KRS 218A.140 , 218A.282 , or 218A.284 .
  2. Seizure and retention shall be for a reasonable period of time to make reasonable inquiry as to whether the prescription is forged, altered, or deceitful.
  3. If after reasonable inquiry the pharmacist, practitioner, or other person determines that the prescription is forged, altered, or deceitful, he shall report the seizure to a law enforcement officer and shall surrender the prescription to the officer upon the request of the officer.

History. Enact. Acts 1998, ch. 301, § 20, effective July 15, 1998.

218A.290. Administrative fines.

Notwithstanding the existence or pursuit of any other remedy, civil or criminal, any state licensing board may impose a fine not to exceed $500 on any practitioner, pharmacist, manufacturer, or wholesaler whom it licenses for any violation of this chapter. All such fines shall be deposited to the credit of the respective licensing board concerned to be used by such board in carrying out the provisions of this chapter.

History. Enact. Acts 1972, ch. 226, § 32.

Opinions of Attorney General.

This chapter gives the administrative agency discretion to subject a practitioner who violates the chapter to either the criminal penalties in KRS 218A.990 (now repealed) or the administrative fines in this section and the proscribed conduct is defined as being those transactions by a practitioner which do not fall within the scope of professional practice or as the obtaining of possession of a controlled substance from an unauthorized source. OAG 76-599 .

218A.300. Election whether or not to be tried under this chapter or prior law.

The provisions of this chapter shall not apply to any offense committed prior to June 16, 1972, unless the defendant elects to be tried under the provisions of this chapter. Such an offense must be construed and punished according to the provisions of law existing at the time of the commission thereof in the same manner as if this chapter had not been enacted if he does not so elect.

History. Enact. Acts 1972, ch. 226, § 34.

218A.310. Title for chapter.

This chapter may be cited as the Kentucky Controlled Substances Act of 1972.

History. Enact. Acts 1972, ch. 226, § 1; 1992, ch. 441, § 23, effective July 14, 1992.

218A.320. Criminal possession of a medical record — Penalties.

  1. A person is guilty of criminal possession of a medical record when he or she possesses a medical record with the intent to unlawfully obtain a controlled substance by:
    1. Falsifying, altering, or creating a medical record; or
    2. Selling or unlawfully transferring the medical record to another person.
  2. Any person who violates any subsection of this section shall be guilty of a Class D felony for the first offense and a Class C felony for a second or subsequent offense.

History. Enact. Acts 2007, ch. 124, § 5, effective June 26, 2007.

218A.322. Theft of a medical record — Penalties.

  1. A person is guilty of theft of a medical record when he or she unlawfully takes or exercises control over a medical record belonging to another person with intent to violate this chapter.
  2. Any person who violates any subsection of this section shall be guilty of a Class D felony for the first offense and a Class C felony for a second or subsequent offense.

History. Enact. Acts 2007, ch. 124, § 6, effective June 26, 2007.

218A.324. Criminal falsification of a medical record — Penalties.

  1. A person is guilty of criminal falsification of a medical record when he or she knowingly and unlawfully falsifies, alters, or creates a medical record for the purpose of obtaining or attempting to obtain a controlled substance with intent to violate this chapter.
  2. Any person who violates any subsection of this section shall be guilty of a Class D felony for the first offense and a Class C felony for a second or subsequent offense.

History. Enact. Acts 2007, ch. 124, § 7, effective June 26, 2007.

218A.350. Prohibited practices concerning substances that simulate controlled substances — Penalties.

  1. No person shall sell or transfer any substance, other than a controlled substance, with the representation or upon creation of an impression that the substance which is sold or transferred is a controlled substance.
  2. No person shall possess for sale or transfer any substance designed in any manner, including but not limited to design of the item or its container, markings, or color, to simulate a controlled substance.
  3. No person shall possess for sale or transfer any substance, not covered by subsection (2) of this section which is not a controlled substance with the representation or upon the creation of an impression that the substance held for sale or transfer is a controlled substance.
  4. No person shall manufacture, package, repackage, advertise, or mark any substance, which is not a controlled substance, in such a manner as to resemble a controlled substance, for the purpose of creating the impression that the substance is a controlled substance.
  5. For the purpose of determining whether this section has been violated, the court or other authority shall include in its consideration the following:
    1. Whether the noncontrolled substance was packaged in a manner normally used for the illegal sale of controlled substances;
    2. Whether the sale or attempted sale included an exchange of or demand for money or other property as consideration, and whether the amount of the consideration was substantially greater than the reasonable value of the noncontrolled substance.
    3. Whether the physical appearance of the noncontrolled substance is substantially identical to that of a controlled substance.
  6. In any prosecution brought under this section, it is not a defense to a violation of this section that the defendant believed the noncontrolled substance to actually be a controlled substance.
    1. Any person who violates any of the provisions of this section shall be guilty of a Class A misdemeanor for the first offense and a Class D felony for subsequent offenses. (7) (a) Any person who violates any of the provisions of this section shall be guilty of a Class A misdemeanor for the first offense and a Class D felony for subsequent offenses.
    2. In lieu of the fine amounts otherwise allowed under KRS Chapter 534, for any offense under this subsection the court may impose a maximum fine of double the defendant’s gain from the commission of the offense, in which case any fine money collected shall be divided between the same parties, in the same ratio, and for the same purposes as established for forfeited property under KRS 218A.420 .
    3. It shall be an affirmative defense to an offense under this subsection that the defendant committed the offense during the course of the defendant’s employment as an employee of a retail store and that the defendant did not know and should not have known that the trafficked substance was a synthetic drug.

History. Enact. Acts 1982, ch. 419, § 1, effective July 15, 1982; 1992, ch. 441, § 7, effective July 14, 1992; 2012, ch. 108, § 12, effective April 11, 2012.

NOTES TO DECISIONS

1.Constitutionality.

This section was a legitimate exercise of legislature’s police power to deter drug trafficking and did not violate due process, even if the substance in question was in fact a simulated substance. Buford v. Commonwealth, 942 S.W.2d 909, 1997 Ky. App. LEXIS 32 (Ky. Ct. App. 1997).

Opinions of Attorney General.

Pursuant to KRS 158.150 , a school board may adopt a policy establishing, as a separate legal cause for suspension or expulsion those practices prohibited by this section concerning substances that simulate controlled substances. OAG 82-633 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part. 4 Miscellaneous KRS 218A Offenses, §§ 9.30A — 9.30C.

218A.390. Prescription Monitoring Program Compact.

The Prescription Monitoring Program compact is hereby enacted into law and entered into with all other jurisdictions legally joining therein in the form substantially as follows:

History. Enact. Acts 2012, ch. 1 (1st Ex. Sess.), § 12, effective July 20, 2012.

ARTICLE I PURPOSE

The purpose of this interstate compact is to provide a mechanism for state prescription monitoring programs to securely share prescription data to improve public health and safety. This interstate compact is intended to:

  1. Enhance the ability of state prescription monitoring programs, in accordance with state laws, to provide an efficient and comprehensive tool for:
    1. Practitioners to monitor patients and support treatment decisions;
    2. Law enforcement to conduct diversion investigations where authorized by state law;
    3. Regulatory agencies to conduct investigations or other appropriate reviews where authorized by state law; and
    4. Other uses of prescription drug data authorized by state law for purposes of curtailing drug abuse and diversion; and
  2. Provide a technology infrastructure to facilitate secure data transmission.

ARTICLE II DEFINITIONS

As used in this compact, unless the context clearly requires a different construction:

  1. “Authentication” means the process of verifying the identity and credentials of a person before authorizing access to prescription data;
  2. “Authorize” means the process by which a person is granted access privileges to prescription data;
  3. “Bylaws” means those bylaws established by the interstate commission pursuant to Article VIII for its governance, or for directing or controlling its actions and conduct;
  4. “Commissioner” means the voting representative appointed by each member state pursuant to Article VI of this compact;
  5. “Interstate commission” or “commission” means the interstate commission created pursuant to Article VI of this compact;
  6. “Member state” means any state that has adopted a prescription monitoring program and has enacted the enabling compact legislation;
  7. “Practitioner” means a person licensed, registered or otherwise permitted to prescribe or dispense a prescription drug;
  8. “Prescription data” means data transmitted by a prescription monitoring program that contains patient, prescriber, dispenser, and prescription drug information;
  9. “Prescription drug” means any drug required to be reported to a state prescription monitoring program and which includes but is not limited to substances listed in the federal Controlled Substances Act;
  10. “Prescription Monitoring Program” means a program that collects, manages, analyzes, and provides prescription data under the auspices of a state;
  11. “Requestor” means a person authorized by a member state who has initiated a request for prescription data;
  12. “Rule” means a written statement by the interstate commission promulgated pursuant to Article VII of this compact that is of general applicability, implements, interprets or prescribes a policy or provision of the compact, or an organizational, procedural, or practice requirement of the commission, and has the force and effect of statutory law in a member state, and includes the amendment, repeal, or suspension of an existing rule;
  13. “State” means any state, commonwealth, district, or territory of the United States;
  14. “Technology infrastructure” means the design, deployment, and use of both individual technology based components and the systems of such components to facilitate the transmission of information and prescription data among member states; and
  15. “Transmission” means the release, transfer, provision, or disclosure of information or prescription data among member states.

ARTICLE III AUTHORIZED USES AND RESTRICTIONS ON THE PRESCRIPTION DATA

  1. Under the Prescription Monitoring Program compact a member state:
    1. Retains its authority and autonomy over its prescription monitoring program and prescription data in accordance with its laws, regulations and policies;
    2. May provide, restrict or deny prescription data to a requestor of another state in accordance with its laws, regulations and policies;
    3. May provide, restrict or deny prescription data received from another state to a requestor within that state; and
    4. Has the authority to determine which requestors shall be authorized.
  2. Prescription data obtained by a member state pursuant to this compact shall have the following restrictions:
    1. Be used solely for purposes of providing the prescription data to a requestor; and
    2. Not be stored in the state’s prescription monitoring program database, except for stored images, nor in any other database.
  3. A state may limit the categories of requestors of another member state that will receive prescription data.
  4. The commission shall promulgate rules establishing standards for requestor authentication.
    1. Every member state shall authenticate requestors according to the rules established by the commission.
    2. A member state may authorize its requestors to request prescription data from another member state only after such requestor has been authenticated.
    3. A member state that becomes aware of a requestor who violated the laws or regulations governing the appropriate use of prescription data shall notify the state that transmitted the prescription data.

ARTICLE IV TECHNOLOGY AND SECURITY

  1. The commission shall establish security requirements through rules for the transmission of prescription data.
  2. The commission shall foster the adoption of open (vendor- and technology-neutral) standards for the technology infrastructure.
  3. The commission shall be responsible for acquisition and operation of the technology infrastructure.

ARTICLE V FUNDING

  1. The commission, through its member states, shall be responsible to provide for the payment of the reasonable expenses for establishing, organizing and administering the operations and activities of the interstate compact.
  2. The interstate commission may levy on and collect annual dues from each member state to cover the cost of operations and activities of the interstate commission and its staff which must be in a total amount sufficient to cover the interstate commission’s annual budget as approved each year. The aggregate annual dues amount shall be allocated in an equitable manner and may consist of a fixed fee component as well as a variable fee component based upon a formula to be determined by the interstate commission, which shall promulgate a rule binding upon all member states. Such a formula shall take into account factors including, but not limited to the total number of practitioners or licensees within a member state. Fees established by the commission may be recalculated and assessed on an annual basis.
  3. Notwithstanding the above or any other provision of law, the interstate commission may accept non-state funding, including grants, awards and contributions to offset, in whole or in part, the costs of the annual dues required under Article V, Section B.
  4. The interstate commission shall not incur obligations of any kind prior to securing the funds adequate to meet the same; nor shall the interstate commission pledge the credit of any of the member states, except by and with the authority of the member states.
  5. The interstate commission shall keep accurate accounts of all receipts and disbursements subject to the audit and accounting procedures established under its bylaws. All receipts and disbursements of funds handled by the interstate commission shall be audited annually by a certified or licensed public accountant and the report of the audit shall be included in and become part of the annual report of the interstate commission.

    The purpose of this interstate compact is to provide a mechanism for state prescription monitoring programs to securely share prescription data to improve public health and safety. This interstate compact is intended to:

ARTICLE VI INTERSTATE COMMISSION

The member states hereby create the Interstate Prescription Monitoring Program Commission. The Prescription Monitoring Program compact shall be governed by an interstate commission comprised of the member states and not by a third-party group or federal agency. The activities of the commission are the formation of public policy and are a discretionary state function.

  1. The commission shall be a body corporate and joint agency of the member states and shall have all the responsibilities, powers and duties set forth herein, and such additional powers as may be conferred upon it by a subsequent concurrent action of the respective legislatures of the member states in accordance with the terms of this compact.
  2. The commission shall consist of one (1) voting representative from each member state who shall be that state’s appointed compact commissioner and who is empowered to determine statewide policy related to matters governed by this compact. The compact commissioner shall be a policymaker within the agency that houses the state’s Prescription Monitoring Program.
  3. In addition to the state commissioner, the state shall appoint a non-voting advisor who shall be a representative of the state Prescription Monitoring Program.
  4. In addition to the voting representatives and non-voting advisor of each member state, the commission may include persons who are not voting representatives, but who are members of interested organizations as determined by the commission.
  5. Each member state represented at a meeting of the commission is entitled to one vote. A majority of the member states shall constitute a quorum for the transaction of business, unless a larger quorum is required by the bylaws of the commission. A representative shall not delegate a vote to another member state. In the event the compact commissioner is unable to attend a meeting of the commission, the appropriate appointing authority may delegate voting authority to another person from their state for a specified meeting. The bylaws may provide for meetings of the commission to be conducted by electronic communication.
  6. The commission shall meet at least once each calendar year. The chairperson may call additional meetings and, upon the request of a simple majority of the compacting states, shall call additional meetings.
  7. The commission shall establish an executive committee, which shall include officers, members, and others as determined by the bylaws. The executive committee shall have the power to act on behalf of the commission, with the exception of rulemaking. During periods when the commission is not in session the executive committee shall oversee the administration of the compact, including enforcement and compliance with the provisions of the compact, its bylaws and rules, and other such duties as deemed necessary.
  8. The commission shall maintain a robust committee structure for governance (i.e., policy, compliance, education, technology, etc.) and shall include specific opportunities for stakeholder input.
  9. The commission’s bylaws and rules shall establish conditions and procedures under which the commission shall make its information and official records available to the public for inspection or copying. The commission may exempt from disclosure information or official records that would adversely affect personal privacy rights or proprietary interests.
  10. The commission shall provide public notice of all meetings and all meetings shall be open to the public, except as set forth in the rules or as otherwise provided in the compact. The commission may close a meeting, or portion thereof, where it determines by a two-thirds (2/3) vote of the members present that an open meeting would be likely to:
    1. Relate solely to the commission’s internal personnel practices and procedures;
    2. Discuss matters specifically exempted from disclosure by federal and state statute;
    3. Discuss trade secrets or commercial or financial information which is privileged or confidential;
    4. Involve accusing a person of a crime, or formally censuring a person;
    5. Discuss information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;
    6. Discuss investigative records compiled for law enforcement purposes; or
    7. Specifically relate to the commission’s participation in a civil action or other legal proceeding.
  11. For a meeting, or portion of a meeting, closed pursuant to this provision, the commission’s legal counsel or designee shall certify that the meeting may be closed and shall reference each relevant exemptive provision. The commission shall keep minutes which shall fully and clearly describe all matters discussed in a meeting and shall provide a full and accurate summary of actions taken, and the reasons therefore, including a description of the views expressed and the record of a roll call vote. All documents considered in connection with an action shall be identified in such minutes. All minutes and documents of a closed meeting shall remain under seal, subject to release by a majority vote of the commission.

ARTICLE VII POWERS AND DUTIES OF THE INTERSTATE COMMISSION

The commission shall have the following powers and duties:

  1. To oversee and maintain the administration of the technology infrastructure;
  2. To promulgate rules and take all necessary actions to effect the goals, purposes and obligations as enumerated in this compact, provided that no member state shall be required to create an advisory committee. The rules shall have the force and effect of statutory law and shall be binding in the member states to the extent and in the manner provided in this compact;
  3. To establish a process for member states to notify the commission of changes to a state’s prescription monitoring program statutes, regulations, or policies. This applies only to changes that would affect the administration of the compact;
  4. To issue, upon request of a member state, advisory opinions concerning the meaning or interpretation of the interstate compact, its bylaws, rules and actions;
  5. To enforce compliance with the compact provisions, the rules promulgated by the interstate commission, and the bylaws, using all necessary and proper means, including but not limited to the use of judicial process;
  6. To establish and maintain one (1) or more offices;
  7. To purchase and maintain insurance and bonds;
  8. To borrow, accept, hire or contract for personnel or services;
  9. To establish and appoint committees including, but not limited to, an executive committee as required by Article VI, Section G, which shall have the power to act on behalf of the interstate commission in carrying out its powers and duties hereunder;
  10. To elect or appoint such officers, attorneys, employees, agents, or consultants, and to fix their compensation, define their duties and determine their qualifications; and to establish the interstate commission’s personnel policies and programs relating to conflicts of interest, rates of compensation, and qualifications of personnel;
  11. To seek and accept donations and grants of money, equipment, supplies, materials, and services, and to utilize or dispose of them;
  12. To lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve or use any property, real, personal, or mixed;
  13. To sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, real, personal or mixed;
  14. To establish a budget and make expenditures;
  15. To adopt a seal and bylaws governing the management and operation of the interstate commission;
  16. To report annually to the legislatures, Governors and Attorneys General of the member states concerning the activities of the interstate commission during the preceding year. Such reports shall also include any recommendations that may have been adopted by the interstate commission and shall be made publically available;
  17. To coordinate education, training and public awareness regarding the compact, its implementation and operation;
  18. To maintain books and records in accordance with the bylaws;
  19. To perform such functions as may be necessary or appropriate to achieve the purposes of this compact; and
  20. To provide for dispute resolution among member states.

ARTICLE VIII ORGANIZATION AND OPERATION OF THE INTERSTATE COMMISSION

  1. The interstate commission shall, by a majority of the members present and voting, within twelve (12) months after the first interstate commission meeting, adopt bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes of the compact, including but not limited to:
    1. Establishing the fiscal year of the interstate commission;
    2. Establishing an executive committee, and such other committees as may be necessary for governing any general or specific delegation of authority or function of the interstate commission;
    3. Providing procedures for calling and conducting meetings of the interstate commission, and ensuring reasonable notice of each such meeting;
    4. Establishing the titles and responsibilities of the officers and staff of the interstate commission; and
    5. Providing a mechanism for concluding the operations of the interstate commission and the return of surplus funds that may exist upon the termination of the compact after the payment and reserving of all of its debts and obligations.
  2. The interstate commission shall, by a majority of the members present, elect annually from among its members a chairperson, a vice-chairperson, and a treasurer, each of whom shall have such authority and duties as may be specified in the bylaws. The chairperson or, in the chairperson’s absence or disability, the vice-chairperson, shall preside at all meetings of the interstate commission. The officers so elected shall serve without compensation or remuneration from the interstate commission; provided that, subject to the availability of budgeted funds, the officers shall be reimbursed for ordinary and necessary costs and expenses incurred by them in the performance of their responsibilities as officers of the interstate commission.
  3. Executive Committee, Officers and Staff
    1. The executive committee shall have such authority and duties as may be set forth in the bylaws, including but not limited to:
      1. Managing the affairs of the interstate commission in a manner consistent with the bylaws and purposes of the interstate commission;
      2. Overseeing an organizational structure within, and appropriate procedures for the interstate commission to provide for the administration of the compact; and
      3. Planning, implementing, and coordinating communications and activities with other state, federal and local government organizations in order to advance the purpose of the interstate commission.
    2. The executive committee may, subject to the approval of the interstate commission, appoint or retain an executive director for such period, upon such terms and conditions and for such compensation, as the interstate commission may deem appropriate. The executive director shall serve as secretary to the interstate commission, but shall not be a member of the interstate commission. The executive director shall hire and supervise such other persons as may be authorized by the interstate commission.
  4. The interstate commission’s executive director and its employees shall be immune from suit and liability, either personally or in their official capacity, for a claim for damage to or loss of property or personal injury or other civil liability caused or arising out of or relating to an actual or alleged act, error, or omission that occurred, or that such person had a reasonable basis for believing occurred, within the scope of interstate commission employment, duties, or responsibilities; provided, that such person shall not be protected from suit or liability for damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of such person.
    1. The liability of the interstate commission’s executive director and employees or interstate commission representatives, acting within the scope of such person’s employment or duties for acts, errors, or omissions occurring within such person’s state may not exceed the limits of liability set forth under the constitution and laws of that state for state officials, employees, and agents. The interstate commission is considered to be an instrumentality of the states for the purposes of any such action. Nothing in this subsection shall be construed to protect such person from suit or liability for damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of such person.
    2. The interstate commission shall defend the executive director, its employees, and subject to the approval of the Attorney General or other appropriate legal counsel of the member state represented by an interstate commission representative, shall defend such interstate commission representative in any civil action seeking to impose liability arising out of an actual or alleged act, error or omission that occurred within the scope of interstate commission employment, duties or responsibilities, or that the defendant had a reasonable basis for believing occurred within the scope of interstate commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such person.
    3. To the extent not covered by the state involved, member state, or the interstate commission, the representatives or employees of the interstate commission shall be held harmless in the amount of a settlement or judgment, including attorney’s fees and costs, obtained against such persons arising out of an actual or alleged act, error, or omission that occurred within the scope of interstate commission employment, duties, or responsibilities, or that such persons had a reasonable basis for believing occurred within the scope of interstate commission employment, duties, or responsibilities, provided that the actual or alleged act, error, or omission did not result from intentional or willful and wanton misconduct on the part of such persons.

ARTICLE IX RULEMAKING FUNCTIONS OF THE INTERSTATE COMMISSION

  1. Rulemaking Authority - The interstate commission shall promulgate reasonable rules in order to effectively and efficiently achieve the purposes of this compact. Notwithstanding the foregoing, in the event the interstate commission exercises its rulemaking authority in a manner that is beyond the scope of the purposes of this compact, or the powers granted hereunder, then such an action by the interstate commission shall be invalid and have no force or effect. Any rules promulgated by the commission shall not override the state’s authority to govern prescription drugs or each state’s Prescription Monitoring Program.
  2. Rulemaking Procedure - Rules shall be made pursuant to a rulemaking process that substantially conforms to the “Model State Administrative Procedure Act,” of 1981 Act, Uniform Laws Annotated, Vol. 15, p.1 (2000) as amended, as may be appropriate to the operations of the interstate commission.
  3. Not later than thirty (30) days after a rule is promulgated, any person may file a petition for judicial review of the rule; provided, that the filing of such a petition shall not stay or otherwise prevent the rule from becoming effective unless the court finds that the petitioner has a substantial likelihood of success. The court shall give deference to the actions of the interstate commission consistent with applicable law and shall not find the rule to be unlawful if the rule represents a reasonable exercise of the interstate commission’s authority.

ARTICLE X OVERSIGHT, ENFORCEMENT, AND DISPUTE RESOLUTION

  1. Oversight
    1. The executive, legislative and judicial branches of state government in each member state shall enforce this compact and shall take all actions necessary and appropriate to effectuate the compact’s purposes and intent. The provisions of this compact and the rules promulgated hereunder shall have standing as statutory law but, shall not override the state’s authority to govern prescription drugs or the state’s Prescription Monitoring Program.
    2. All courts shall take judicial notice of the compact and the rules in any judicial or administrative proceeding in a member state pertaining to the subject matter of this compact which may affect the powers, responsibilities or actions of the interstate commission.
    3. The interstate commission shall be entitled to receive all service of process in any such proceeding, and shall have standing to intervene in the proceeding for all purposes. Failure to provide service of process to the interstate commission shall render a judgment or order void as to the interstate commission, this compact or promulgated rules.
  2. Default, Technical Assistance, Suspension and Termination - If the interstate commission determines that a member state has defaulted in the performance of its obligations or responsibilities under this compact, or the bylaws or promulgated rules, the interstate commission shall:
    1. Provide written notice to the defaulting state and other member states, of the nature of the default, the means of curing the default and any action taken by the interstate commission. The interstate commission shall specify the conditions by which the defaulting state must cure its default.
    2. Provide remedial training and specific technical assistance regarding the default.
    3. If the defaulting state fails to cure the default, the defaulting state shall be terminated from the compact upon an affirmative vote of a majority of the member states and all rights, privileges and benefits conferred by this compact shall be terminated from the effective date of termination. A cure of the default does not relieve the offending state of obligations or liabilities incurred during the period of the default.
    4. Suspension or termination of membership in the compact shall be imposed only after all other means of securing compliance have been exhausted. Notice of intent to suspend or terminate shall be given by the interstate commission to the Governor, the majority and minority leaders of the defaulting state’s legislature, and each of the member states.
    5. The state which has been suspended or terminated is responsible for all dues, obligations and liabilities incurred through the effective date of suspension or termination including obligations, the performance of which extends beyond the effective date of suspension or termination.
    6. The interstate commission shall not bear any costs relating to any state that has been found to be in default or which has been suspended or terminated from the compact, unless otherwise mutually agreed upon in writing between the interstate commission and the defaulting state.
    7. The defaulting state may appeal the action of the interstate commission by petitioning the United States District Court for the District of Columbia or the federal district where the interstate commission has its principal offices. The prevailing party shall be awarded all costs of such litigation including reasonable attorney’s fees.
  3. Dispute Resolution
    1. The interstate commission shall attempt, upon the request of a member state, to resolve disputes which are subject to the compact and which may arise among member states.
    2. The interstate commission shall promulgate a rule providing for both mediation and binding dispute resolution as appropriate.
  4. Enforcement
    1. The interstate commission, in the reasonable exercise of its discretion, shall enforce the provisions and rules of this compact.
    2. The interstate commission, may by majority vote of the members, initiate legal action in the United States District Court for the District of Columbia or, at the discretion of the interstate commission, in the federal district where the interstate commission has its principal offices, to enforce compliance with the provisions of the compact, its promulgated rules and bylaws, against a member state in default. The relief sought may include both injunctive relief and damages. In the event judicial enforcement is necessary the prevailing party shall be awarded all costs of such litigation including reasonable attorney’s fees.
    3. The remedies herein shall not be the exclusive remedies of the interstate commission. The interstate commission may avail itself of any other remedies available under state law or the regulation of a profession.

ARTICLE XI MEMBER STATES, EFFECTIVE DATE AND AMENDMENT

  1. Any state that has enacted Prescription Monitoring Program legislation through statute or regulation is eligible to become a member state of this compact.
  2. The compact shall become effective and binding upon legislative enactment of the compact into law by no less than six (6) of the states. Thereafter it shall become effective and binding on a state upon enactment of the compact into law by that state. The Governors of non-member states or their designees shall be invited to participate in the activities of the interstate commission on a non-voting basis prior to adoption of the compact by all states.
  3. The interstate commission may propose amendments to the compact for enactment by the member states. No amendment shall become effective and binding upon the interstate commission and the member states unless and until it is enacted into law by unanimous consent of the member states.

ARTICLE XII WITHDRAWAL AND DISSOLUTION

  1. Withdrawal
    1. Once effective, the compact shall continue in force and remain binding upon each and every member state; provided that a member state may withdraw from the compact by specifically repealing the statute which enacted the compact into law.
    2. Withdrawal from this compact shall be by the enactment of a statute repealing the same, but shall not take effect until one (1) year after the effective date of such statute and until written notice of the withdrawal has been given by the withdrawing state to the Governor of each other member state.
    3. The withdrawing state shall immediately notify the chairperson of the interstate commission in writing upon the introduction of legislation repealing this compact in the withdrawing state. The interstate commission shall notify the other member states of the withdrawing state’s intent to withdraw within sixty (60) days of its receipt thereof.
    4. The withdrawing state is responsible for all dues, obligations and liabilities incurred through the effective date of withdrawal, including obligations, the performance of which extend beyond the effective date of withdrawal.
    5. Reinstatement following withdrawal of a member state shall occur upon the withdrawing state reenacting the compact or upon such later date as determined by the interstate commission.
  2. Dissolution of the Compact
    1. This compact shall dissolve effective upon the date of the withdrawal or default of the member state which reduces the membership in the compact to one (1) member state.
    2. Upon the dissolution of this compact, the compact becomes null and void and shall be of no further force or effect, and the business and affairs of the interstate commission shall be concluded and surplus funds shall be distributed in accordance with the bylaws.

ARTICLE XIII SEVERABILITY AND CONSTRUCTION

  1. The provisions of this compact shall be severable, and if any phrase, clause, sentence or provision is deemed unenforceable, the remaining provisions of the  compact shall be enforceable.
  2. The provisions of this compact shall be liberally construed to effectuate its purposes.
  3. Nothing in this compact shall be construed to prohibit the applicability of other  interstate compacts to which the states are members.

ARTICLE XIV BINDING EFFECT OF COMPACT AND OTHER LAWS

  1. Other Laws
    1. Nothing herein prevents the enforcement of any other law of a member state that is not inconsistent with this compact.
  2. Binding Effect of the Compact
    1. All lawful actions of the interstate commission, including all rules and bylaws promulgated by the interstate commission, are binding upon the member states.
    2. All agreements between the interstate commission and the member states are binding in accordance with their terms.
    3. In the event any provision of this compact exceeds the constitutional limits imposed on the legislature of any member state, such provision shall be ineffective to the extent of the conflict with the constitutional provision in question in that member state.

Legislative Research Commission Note.

(7/20/2012). 2012 (1st Extra. Sess.) Ky. Acts ch. 1, sec. 12, Article XI, B. states that the compact contained in this statute “shall become effective and binding upon legislative enactment of the compact into law by no less than six states.” At the time of the codification of this statute, that threshold had not been met.

218A.391. Gubernatorial appointments to Prescription Monitoring Program Compact.

The Governor shall be the appointing authority for those appointments Kentucky is entitled to make under KRS 218A.390 , provided that all such appointments shall be subject to confirmation by the Senate.

History. Enact. Acts 2012 (1st Ex. Sess.), ch. 1, § 13, effective July 20, 2012.

Forfeited Property

218A.405. Definitions for KRS 218A.405 to 218A.460.

The following definitions apply in KRS 218A.405 to 218A.460 unless the context otherwise requires:

  1. “Interest in property” includes:
    1. The interest of a person as a beneficiary under a trust, in which the trustee of the trust holds legal or record title of the personal or real property;
    2. The interest of a person or a beneficiary under any other trust arrangement under which any other person holds legal or record title to personal or real property for the benefit of the person; or
    3. The interest of a person under any other form of express fiduciary arrangement under which any other person holds legal or record title to personal or real property for the benefit of the person.
    4. Real property or an interest in real property shall be deemed to be located where the real property is located. Personal property or an interest in personal property shall be deemed to be located where the trustee is located, the personal property is located, or the instrument evidencing the right is located.
  2. “Forfeiture lien notice” means the notice provided for in KRS 218A.450 .
  3. “Property” means everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal, easements, franchises, incorporeal hereditaments, or any interest therein.
  4. “Real property” means any real property located in the Commonwealth or any interest in real property, including any lease of, or mortgage upon, real property.
  5. “Trustee” includes:
    1. Any person acting as trustee under a trust in which the trustee holds legal or record title to personal or real property;
    2. Any person who holds legal or record title to personal or real property in which any other person has an interest; or
    3. Any successor trustee.

The term “trustee” shall not include an assignee or trustee for an insolvent debtor, a guardian under the Uniform Veterans’ Guardianship Act, or an executor, administrator, administrator with will annexed, testamentary trustee, curators, guardians, or committees, appointed by, or under control of, or accountable to a District Court.

History. Enact. Acts 1990, ch. 445, § 7, effective July 13, 1990.

NOTES TO DECISIONS

1.Double Jeopardy.

The forfeiture provisions, KRS 218A.405 et seq., while perhaps having certain punitive aspects, serve important nonpunitive goals, and while, in most cases, there is a close association between a criminal conviction and a forfeiture pursuant to KRS 218A.405 et seq., that did not mean that the forfeiture constituted an additional criminal punishment. Thus, there was no double jeopardy violation where the court ordered the forfeiture of defendant’s vehicle. Smith v. Commonwealth, 205 S.W.3d 217, 2006 Ky. App. LEXIS 39 (Ky. Ct. App. 2006).

2.Interest in Property.

The definition of “owner” in KRS 186.010 is not the correct definition to apply to vehicle forfeiture under the controlled substances chapter. While KRS ch. 218A does not specifically define “owner,” KRS 218A.405(1)(b) and (5)(b) define “interest in property” and “trustee.” Defining “owner” as one who has an interest in property when title is being held by another appropriately prevents a drug dealer from titling vehicles or other property in someone else’s name in order to use the property in illegal activity and escape forfeiture. Commonwealth v. Coffey, 247 S.W.3d 908, 2008 Ky. LEXIS 65 ( Ky. 2008 ).

When a sister held title to a vehicle in which her brother was caught selling drugs, but the sister did not use the vehicle, take responsibility for items found in it, or know why it was titled in her name, and the brother had exercised dominion and control over the vehicle, the brother had the real interest in the vehicle, which thus was subject to forfeiture under KRS 218A.405 and 218A.410 . Commonwealth v. Coffey, 247 S.W.3d 908, 2008 Ky. LEXIS 65 ( Ky. 2008 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Brandt, Kentucky Real Estate Law Survey: 1990 Through 1993, 21 N. Ky. L. Rev. 435 (1994).

218A.410. Property subject to forfeiture.

  1. The following are subject to forfeiture:
    1. Controlled substances listed in Schedule I that are possessed, transferred, sold, or offered for sale in violation of this chapter are contraband and shall be seized and summarily forfeited to the state;
    2. Controlled substances listed in Schedule I, which are seized or come into the possession of the state, the owners of which are unknown, are contraband and shall be summarily forfeited to the state;
    3. Species of plants from which controlled substances in Schedules I and II may be derived which have been planted or cultivated in violation of this chapter, or of which the owners or cultivators are unknown, or which are wild growths, may be seized and summarily destroyed or forfeited to the state. The failure, upon demand by the law enforcement agency or its authorized agent, of the person in occupancy or in control of land or premises upon which the species of plants are growing or being stored, to produce an appropriate registration, or proof that he or she is the holder thereof, constitutes authority for the seizure and forfeiture of the plants;
    4. All substances, machinery, or devices used for the manufacture, packaging, repackaging, or marking, and books, papers, and records, and all vehicles owned and used by the seller or distributor for the manufacture, distribution, sale, or transfer of substances in violation of KRS 218A.350 shall be seized and forfeited to the state. Substances manufactured, held, or distributed in violation of KRS 218A.350 shall be deemed contraband;
    5. All controlled substances which have been manufactured, distributed, dispensed, possessed, being held, or acquired in violation of this chapter;
    6. All raw materials, products, and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance in violation of this chapter;
    7. All property which is used, or intended for use, as a container for property described in paragraph (e) or (f) of this subsection;
    8. All conveyances, including aircraft, vehicles, or vessels, which are used, or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of property described in paragraph (e) or (f) of this subsection, but:
      1. No conveyance used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under this section unless it is proven beyond a reasonable doubt that the owner or other person in charge of the conveyance is a consenting party or privy to a violation of this chapter;
      2. No conveyance is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without his or her knowledge or consent;
      3. A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if he or she neither had knowledge of nor consented to the act or omission; and
      4. The forfeiture provisions of this paragraph shall not apply to any misdemeanor offense relating to marijuana or salvia;
    9. All books, records, and research products and materials, including formulas, microfilm, tapes, and data which are used, or intended for use, in violation of this chapter;
    10. Everything of value furnished, or intended to be furnished, in exchange for a controlled substance in violation of this chapter, all proceeds, including real and personal property, traceable to the exchange, and all moneys, negotiable instruments, and securities used, or intended to be used, to facilitate any violation of this chapter; except that no property shall be forfeited under this paragraph, to the extent of the interest of an owner, by reason of any act or omission established by him or her to have been committed or omitted without his or her knowledge or consent. It shall be a rebuttable presumption that all moneys, coin, and currency found in close proximity to controlled substances, to drug manufacturing or distributing paraphernalia, or to records of the importation, manufacture, or distribution of controlled substances, are presumed to be forfeitable under this paragraph. The burden of proof shall be upon claimants of personal property to rebut this presumption by clear and convincing evidence. The burden of proof shall be upon the law enforcement agency to prove by clear and convincing evidence that real property is forfeitable under this paragraph; and
    11. All real property, including any right, title, and interest in the whole of any lot or tract of land and any appurtenances or improvements, which is used or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this chapter excluding any misdemeanor offense relating to marijuana, synthetic drugs, or salvia, except that property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by the Commonwealth to have been committed or omitted with the knowledge or consent of the owner.
  2. Title to all property, including all interests in the property, forfeit under this section vests in the Commonwealth on the commission of the act or omission giving rise to forfeiture under this section together with the proceeds of the property after the time. Any property or proceeds subsequently transferred to any person shall be subject to forfeiture and thereafter shall be ordered forfeited, unless the transferee establishes in the forfeiture proceeding that he or she is a subsequent bona fide purchaser for value without actual or constructive notice of the act or omission giving rise to the forfeiture.
  3. If any of the property described in this section cannot be located; has been transferred to, sold to, or deposited with a third party; has been placed beyond the jurisdiction of the court; has been substantially diminished in value by any act or omission of the defendant; or, has been commingled with any property which cannot be divided without difficulty, the court shall order the forfeiture of any other property of the defendant up to the value of any property subject to forfeiture under this section.

History. Enact. Acts 1984, ch. 101, § 1, effective July 13, 1984; 1990, ch. 445, § 1, effective July 13, 1990; 2010, ch. 149, § 13, effective April 13, 2010; 2010, ch. 160, § 13, effective April 26, 2010; 2011, ch. 45, § 12, effective March 16, 2011; 2012, ch. 108, § 13, effective April 11, 2012.

NOTES TO DECISIONS

1.Applicability.

Nothing in the forfeiture statute requires criminal conviction of the person whose property is sought to be forfeited; it is sufficient under KRS 218A.410 (h) and (j) to show a nexus between the property sought to be forfeited and its use to facilitate violation of the Controlled Substances Act. The inquiry is whether the evidence and law, including statutory presumptions, permit a finding that the subject property was used to facilitate violation of the Act. Smith v. Commonwealth, 205 S.W.3d 217, 2006 Ky. App. LEXIS 39 (Ky. Ct. App. 2006).

Circuit court erred in denying defendant’s motion to return money seized during a search of his business because he entitled to a forfeiture hearing where the record made it clear that defendant was charged with crimes in connection with property seized from his residence, the record did not include any information regarding the search of defendant’s business when he entered his plea, and the record indicated the Commonwealth was unaware of the search until defendant filed his motion for the return of money seized from his business. Lee v. Commonwealth, 606 S.W.3d 95, 2020 Ky. App. LEXIS 91 (Ky. Ct. App. 2020).

2.Property Not Forfeited.

Where the defendant was found by the jury to be innocent of trafficking and guilty only of possession, the order of forfeiture of the cash found on his person under subdivision (j) of this section was erroneous. Smith v. Commonwealth, 707 S.W.2d 342, 1986 Ky. LEXIS 250 ( Ky. 1986 ), overruled, Kentucky Bar Ass'n v. White, 818 S.W.2d 263, 1991 Ky. LEXIS 24 ( Ky. 1991 ), overruled in part, Clay v. Commonwealth, 818 S.W.2d 264, 1991 Ky. LEXIS 158 ( Ky. 1991 ).

Commonwealth’s claim that a trial court abused its discretion in refusing to forfeit defendant’s vehicle under KRS 218A.410 was rejected as the Commonwealth did not identify how the trial court abused its discretion. Commonwealth v. Shirley, 140 S.W.3d 593, 2004 Ky. App. LEXIS 198 (Ky. Ct. App. 2004).

Although the evidence disclosed defendant’s involvement in a five-year scheme of drug trafficking, without evidence linking any of the firearms found at defendant’s home to narcotics, the trial court’s order of forfeiture of firearms under KRS 218A.410(1)(f) and (j) was improper and required reversal. Brewer v. Commonwealth, 206 S.W.3d 343, 2006 Ky. LEXIS 304 ( Ky. 2006 ).

3.Owner of Forfeited Property.

Nothing in the forfeiture statute requires criminal conviction of the person whose property is sought to be forfeited. It is sufficient under (h) and (j) of this section to show a nexus between the property sought to be forfeited and its use to facilitate violation of the Controlled Substances Act. Osborne v. Commonwealth, 839 S.W.2d 281, 1992 Ky. LEXIS 152 ( Ky. 1992 ).

When a sister held title to a vehicle in which her brother was caught selling drugs, but the sister did not use the vehicle, take responsibility for items found in it, or know why it was titled in her name, and the brother had exercised dominion and control over the vehicle, the brother had the real interest in the vehicle, which thus was subject to forfeiture under KRS 218A.405 and 218A.410 . Commonwealth v. Coffey, 247 S.W.3d 908, 2008 Ky. LEXIS 65 ( Ky. 2008 ).

4.Currency.
5.— Use in Drug Transaction.

In a forfeiture of currency case under the Controlled Substances Act, the Commonwealth must first produce some evidence that the currency or some portion of it had been used or was intended to be used in a drug transaction. Additional proof by the Commonwealth that the currency sought to be forfeited was found in close proximity is sufficient to make a prima facie case. Thereafter, the burden is on the claimant to convince the trier of fact that the currency was not being used in the drug trade. Osborne v. Commonwealth, 839 S.W.2d 281, 1992 Ky. LEXIS 152 ( Ky. 1992 ).

Trial court erred by ordering homeowner who was convicted of facilitating husband’s crime of cultivating marijuana to forfeit $55,000 in proceeds from a foreclosure sale without determining if the forfeiture was proportionate to the homeowner’s crime or considering the homeowner’s post-conviction contributions to the equity in the house. Hinkle v. Commonwealth, 104 S.W.3d 778, 2002 Ky. App. LEXIS 1848 (Ky. Ct. App. 2002).

Because defendant was not provided notice of forfeiture and an opportunity to be heard, he lacked the ability to rebut the presumption that his property was not forfeitable, and thus the order of forfeiture was reversed; further, the forfeiture order was reversed since the state failed to present sufficient evidence that the property seized was traceable to drug trafficking. Harbin v. Commonwealth, 121 S.W.3d 191, 2003 Ky. LEXIS 172 ( Ky. 2003 ).

Forfeiture of currency found on the defendant’s property was affirmed where, on a second search of the property, the police uncovered marijuana wrapped in cellophane, which was placed on the ground and covered by leaves, the currency was found in a makeup pouch not far from where the marijuana was uncovered, and the defendant and her husband had been convicted of eight (8) counts of trafficking in marijuana. Brewer v. Commonwealth, 206 S.W.3d 313, 2006 Ky. LEXIS 306 ( Ky. 2006 ).

Forfeiture of $1,527 found on the defendant was proper because the amount of money, coupled with the quantity of drugs found in defendant’s van, led to the reasonable conclusion that he had used or intended to use the currency in illegal drug transaction; defendant then failed to rebut the presumption that the money should be forfeited. Gray v. Commonwealth, 233 S.W.3d 715, 2007 Ky. LEXIS 190 ( Ky. 2007 ).

Forfeiture under KRS 218A.410(1)(j) was proper where there was evidence of traceability between drugs and money; the money was found in proximity to the drugs and defendant admitted to selling crack for money; defendant failed to rebut the presumption that the money was connected to the criminal activity. Hill v. Commonwealth, 308 S.W.3d 227, 2010 Ky. App. LEXIS 111 (Ky. Ct. App. 2010).

Forfeiture of currency found in defendant’s purse in proximity to illegal drugs was not justified because, once defendant convinced the court that the funds were not derived from drug trafficking activity, Commonwealth of Kentucky had to prove that defendant had some intent to use them in connection with trafficking. Defendant’s admission to possession of a syringe was too speculative to assume that the seizure of the currency in close proximity to a single item of drug paraphernalia established that the currency was used in a drug transaction. Doebler v. Commonwealth, 2019 Ky. App. LEXIS 194 (Ky. Ct. App. Nov. 1, 2019).

6.Trial Court Discretion.

Trial court has discretion to refuse to forfeit property “subject to forfeiture” under KRS 218A.410 ; KRS 218A.410 distinguishes property “subject to forfeiture” from property that “shall be forfeited.” Commonwealth v. Shirley, 140 S.W.3d 593, 2004 Ky. App. LEXIS 198 (Ky. Ct. App. 2004).

7.Harmless Error.

Trial court did not commit reversible error in refusing to forfeit defendant’s vehicle under KRS 218A.410 without a hearing as the Commonwealth did not identify any additional relevant evidence or any prejudice resulting from the failure to hold a hearing; thus, any error was harmless. Commonwealth v. Shirley, 140 S.W.3d 593, 2004 Ky. App. LEXIS 198 (Ky. Ct. App. 2004).

8.Use of Forfeited Property.

When, after defendant was convicted of first degree trafficking in a controlled substance, money seized from him at the time of his arrest was ordered forfeited, that money could not be applied to the costs of his representation by appointed counsel because, under KRS 218A.410(2), title to the forfeited property vested in the Commonwealth of Kentucky as of the commission of the act giving rise to the forfeiture; so, when defendant was being represented at Commonwealth’s expense, the forfeited funds were not his, causing him to lack the ability to contribute to the costs of his defense, so that there was no statutory authority, under KRS 31.211(1) or (5), to order reimbursement of the costs of his representation from the forfeited funds. Commonwealth v. Dep't of Public Advocacy, 2004 Ky. App. LEXIS 159 (Ky. Ct. App., sub. op., 2004 Ky. App. Unpub. LEXIS 928 (Ky. Ct. App. May 28, 2004).

9.Double Jeopardy.

The forfeiture provisions, KRS 218A.405 et seq., while perhaps having certain punitive aspects, serve important nonpunitive goals, and while, in most cases, there is a close association between a criminal conviction and a forfeiture pursuant to KRS 218A.405 et seq., that did not mean that the forfeiture constituted an additional criminal punishment. Thus, there was no double jeopardy violation where the court ordered the forfeiture of defendant’s vehicle. Smith v. Commonwealth, 205 S.W.3d 217, 2006 Ky. App. LEXIS 39 (Ky. Ct. App. 2006).

10.Forfeiture Upheld.

Forfeiture of an defendant’s real property was affirmed where the Commonwealth showed that the home served as the base of operations for the directing and financing of a drug syndicate’s activities and a subsequent search of the property resulted in the discovery of significant amounts of marijuana. Brewer v. Commonwealth, 206 S.W.3d 313, 2006 Ky. LEXIS 306 ( Ky. 2006 ).

Forfeiture of an defendant’s vehicle was affirmed where the evidence showed that the defendant’s husband and coconspirator used the vehicle to pick up and deliver the proceeds from the sale of marijuana. Brewer v. Commonwealth, 206 S.W.3d 313, 2006 Ky. LEXIS 306 ( Ky. 2006 ).

Trial court was within its discretion in determining that defendant had not rebutted the presumption that the cash found in the same room as the cocaine was forfeitable by clear and convincing evidence. Johnson v. Commonwealth, 277 S.W.3d 635, 2009 Ky. App. LEXIS 15 (Ky. Ct. App. 2009).

Forfeiture of $932 cash seized from defendant at the time he was arrested was proper under KRS 218A.410 where defendant failed to rebut evidence of traceability of the money to drug trafficking. The Commonwealth’s evidence showed that police officers recovered the cash from defendant’s pockets; that a search of defendant’s apartment revealed two digital scales, a scanner and documentation of police radio frequencies, multiple cell phones, a camera mounted for surveillance use, and the drugs which led to defendant’s conviction; and that the $ 932 was in various small denominations. Smith v. Commonwealth, 339 S.W.3d 485, 2010 Ky. App. LEXIS 166 (Ky. Ct. App. 2010).

10.5.Forfeiture Reversed.

Although the location of the truck's car keys and defendant's insurance policy tended to show that defendant was the truck's true owner and defendant was unemployed at that time, the evidence did not show that defendant, who had been receiving disability income from more than 10 years, bought the truck with illicit funds and thus, the forfeiture order was improper. Gritton v. Commonwealth, 477 S.W.3d 603, 2015 Ky. App. LEXIS 163 (Ky. Ct. App. 2015).

11.Perfection of Title.

When KRS 218A.410(2) is read in conjunction with KRS 218A.450(1) and 218A.460(2), it is clear that the Commonwealth’s title to property is not perfected until a final order of forfeiture is entered by the trial court. Prior to this occurrence, the Commonwealth merely holds a lien against the property which is subject to forfeiture. Commonwealth v. Maynard, 294 S.W.3d 43, 2009 Ky. App. LEXIS 128 (Ky. Ct. App. 2009).

12.Illustrative cases.

While the trial court found that appellant’s truck was used to arrive at the locations of the drug transactions, some of which took place inside the truck, and appellant testified that the trailer was purchased with the proceeds of drug transactions, forfeiture of the tools was not supported by the evidence because the record contained insufficient findings regard the traceability of many of the tools appellant claimed were inherited from his later father and brother and purchased with money made from construction work. Martin v. Commonwealth, 586 S.W.3d 252, 2019 Ky. App. LEXIS 149 (Ky. Ct. App. 2019).

Opinions of Attorney General.

In the event a forfeiture proceeding is properly commenced in federal court, KRS 218A.410 et seq., would be inapplicable, and such an action by the federal government commenced pursuant to the appropriate federal statutes would not contravene state law. OAG 89-82 .

Jurisdiction to order the return to defendant of personal property seized for forfeiture does not vest in any court until there has been a conviction. Until that time, property is not subject to replevin, but is deemed to be in the custody of the appropriate law enforcement agency. The Commonwealth may hold property which may be subject to forfeiture under the penal code until the underlying criminal charges have been resolved, and upon conviction subject the property to forfeiture. A district court order directing that personal property seized incident to an arrest or by execution of a search warrant be returned to the defendant is not a final action, so a direct appeal would not be available. Rather, review, if any, would be available through an original proceeding for relief in the nature of mandamus or prohibition in the circuit court pursuant to the authority of SCR 1.040(6), CR 81 and KRS 24A.010(2). OAG 91-67 .

Research References and Practice Aids

Northern Kentucky Law Review.

Brandt, Kentucky Real Estate Law Survey: 1990 Through 1993, 21 N. Ky. L. Rev. 435 (1994).

218A.415. Procedure for seizure of property.

  1. Personal property subject to forfeiture under this chapter may be seized by any law enforcement agency upon process issued by any judge that is empowered to issue a warrant of arrest or search warrant and in whose jurisdiction the property is located. Seizure of personal property without process may be made if:
    1. The seizure is incident to an arrest or a search under a search warrant;
    2. The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding based upon this chapter;
    3. The law enforcement agency has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or
    4. The law enforcement agency has probable cause to believe that the property is subject to forfeiture pursuant to this chapter.
  2. Property taken or detained under this section shall not be subject to replevin, but shall be deemed to be in the custody of the law enforcement agency subject only to the orders and decrees of the court having jurisdiction over the forfeiture proceedings. When property is seized under this chapter, the law enforcement agency may:
    1. Remove the property to a place designated by it; or
    2. Take custody of the property and remove it to an appropriate location for disposition in accordance with law.
  3. Real property subject to forfeiture may be seized only pursuant to final judgment and order of forfeiture or upon order of the court having jurisdiction over the property. The order may be obtained pursuant to this subsection upon application of the Commonwealth.
    1. Upon receipt of the application, the court shall immediately enter an order setting a date for hearing on the matter no fewer than five (5) days nor more than ten (10) days after the filing of the application. At the hearing:
      1. The court shall take evidence on the issues of whether the property named in the application is forfeit and seizure is necessary to preserve the property pending final judgment.
      2. The Commonwealth shall have the initial burden of showing the existence of probable cause for forfeiture of the property and the necessity of seizure. On the showing by the Commonwealth, the respondent shall have the burden of showing by a preponderance of the evidence that the property is not subject to forfeiture.
      3. Evidence at the seizure hearing may not be suppressed on the ground that its acquisition by search or seizure violated constitutional protections applicable in criminal cases relating to unreasonable searches or seizures.
      4. If the court makes a determination in favor of the Commonwealth, it shall enter an order authorizing the seizure of the property.
      5. The court may, in its discretion, permit the owner of the property to post security equal to the value of the property in lieu of seizure.
    2. A temporary seizure order pursuant to this section may be entered on application without notice or an opportunity for a hearing if the Commonwealth demonstrates that there is probable cause to believe that the property with respect to which the order is sought is subject to forfeiture and the need to preserve the availability of property through immediate seizure outweighs the hardship that an immediate seizure may cause the owner. The temporary order shall expire ten (10) days after the date on which it is entered or at the time of the hearing provided for in paragraph (a) of this subsection.

History. Enact. Acts 1984, ch. 101, § 2, effective July 13, 1984; 1990, ch. 445, § 2, effective July 13, 1990.

NOTES TO DECISIONS

Cited:

Bush v. Commonwealth, 893 S.W.2d 798, 1995 Ky. App. LEXIS 31 (Ky. Ct. App. 1995); Hinkle v. Commonwealth, 104 S.W.3d 778, 2002 Ky. App. LEXIS 1848 (Ky. Ct. App. 2002).

Opinions of Attorney General.

In the event a forfeiture proceeding is properly commenced in federal court, KRS 218A.410 et seq., would be inapplicable, and such an action by the federal government commenced pursuant to the appropriate federal statutes would not contravene state law. OAG 89-82 .

Jurisdiction to order the return to defendant of personal property seized for forfeiture does not vest in any court until there has been a conviction. Until that time, property is not subject to replevin, but is deemed to be in the custody of the appropriate law enforcement agency. The Commonwealth may hold property which may be subject to forfeiture under the penal code until the underlying criminal charges have been resolved, and upon conviction subject the property to forfeiture. A district court order directing that personal property seized incident to an arrest or by execution of a search warrant be returned to the defendant is not a final action, so a direct appeal would not be available. Rather, review, if any, would be available through an original proceeding for relief in the nature of mandamus or prohibition in the Circuit Court pursuant to the authority of SCR 1.040(6), CR 81 and KRS 24A.010(2). OAG 91-67 .

218A.420. Procedure for disposal of seized and forfeited property — Distribution of proceeds — Administrative regulations on use of funds — Adoption of policies for seizure of forfeitable assets — Asset-forfeiture training — Vehicles — Joint operations.

  1. All property which is subject to forfeiture under this chapter shall be disposed of in accordance with this section.
  2. All controlled substances which are seized and forfeited under this chapter shall be ordered destroyed by the order of the trial court unless there is a legal use for them, in which case they may be sold to a proper buyer as determined by the Cabinet for Health and Family Services by promulgated regulations. Property other than controlled substances may be destroyed on order of the trial court.
  3. When property other than controlled substances is forfeited under this chapter and not retained for official use, it may be sold for its cash value. Any sale shall be a public sale advertised pursuant to KRS Chapter 424.
  4. Coin, currency, or the proceeds from the sale of property forfeited shall be distributed as follows:
    1. Eighty-five percent (85%) shall be paid to the law enforcement agency or agencies which seized the property, to be used for direct law enforcement purposes; and
    2. Fifteen percent (15%) shall be paid to the Office of the Attorney General or, in the alternative, the fifteen percent (15%) shall be paid to the Prosecutors Advisory Council for deposit on behalf of the Commonwealth’s attorney or county attorney who has participated in the forfeiture proceeding, as determined by the court pursuant to subsection (9) of this section. Notwithstanding KRS Chapter 48, these funds shall be exempt from any state budget reduction acts.

      The moneys identified in this subsection are intended to supplement any funds otherwise appropriated to the recipient and shall not supplant other funding of any recipient.

  5. The Attorney General, after consultation with the Prosecutors Advisory Council, shall promulgate administrative regulations to establish the specific purposes for which these funds shall be expended.
  6. Each state and local law enforcement agency that seizes property for the purpose of forfeiture under KRS 218A.410 shall, prior to receiving any forfeited property, adopt policies relating to the seizure, maintenance, storage, and care of property pending forfeiture which are in compliance with or substantially comply with the model policy for seizure of forfeitable assets by law enforcement agencies published by the Department of Criminal Justice Training. However, a state or local law enforcement agency may adopt policies that are more restrictive on the agency than those contained in the model policy and that fairly and uniformly implement the provisions of this chapter.
  7. Each state or local law enforcement agency that seizes property for the purpose of forfeiture under KRS 218A.410 shall, prior to receiving forfeited property, have one (1) or more officers currently employed attend asset-forfeiture training approved by the Kentucky Law Enforcement Council, which shall approve a curriculum of study for asset-forfeiture training.
    1. Other provisions of this section notwithstanding and subject to the limitations of paragraph (b) of this subsection, any vehicle seized by a law enforcement agency which is forfeited pursuant to this chapter may be retained by the seizing agency for official use or sold within its discretion. Proceeds from the sale shall remain with the agency. The moneys shall be utilized for purposes consistent with KRS 218A.405 to 218A.460 . The seizing agency shall be required to pay any bona fide perfected security interest on any vehicle so forfeited. (8) (a) Other provisions of this section notwithstanding and subject to the limitations of paragraph (b) of this subsection, any vehicle seized by a law enforcement agency which is forfeited pursuant to this chapter may be retained by the seizing agency for official use or sold within its discretion. Proceeds from the sale shall remain with the agency. The moneys shall be utilized for purposes consistent with KRS 218A.405 to 218A.460 . The seizing agency shall be required to pay any bona fide perfected security interest on any vehicle so forfeited.
    2. Any vehicle seized by a law enforcement agency which is forfeited pursuant to this chapter and which has been determined by a state or local law enforcement agency to be contaminated with methamphetamine as defined by KRS 218A.1431 shall not be used, resold, or salvaged for parts, but instead shall be destroyed or salvaged only for scrap metal. Any vehicle which is forfeited pursuant to this chapter and has only transported prepackaged materials or products, precursors, or any other materials which have not been subjected to extraction either directly or indirectly from substances of natural origin or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis extraction, shall not be deemed contaminated with methamphetamine under this section.
  8. When money or property is seized in a joint operation involving more than one (1) law enforcement agency or prosecutorial office, the apportionment of funds to each pursuant to subsection (4) of this section shall be made among the agencies in a manner to reflect the degree of participation of each agency in the law enforcement effort resulting in the forfeiture, taking into account the total value of all property forfeited and the total law enforcement effort with respect to the violation of law on which the forfeiture is based. The trial court shall determine the proper division and include the determination in the final order of forfeiture.

HISTORY: Enact. Acts 1984, ch. 101, § 3, effective July 13, 1984; 1990, ch. 445, § 3, effective July 13, 1990; 1998, ch. 426, § 491, effective July 15, 1998; 2005, ch. 99, § 551, effective June 20, 2005; 2007, ch. 124, § 13, effective June 26, 2007; 2015 ch. 100, § 1, effective June 24, 2015.

218A.425. Valuation of property retained for official use.

When seized property is retained for official use by law enforcement agencies under this chapter the value of the property shall be determined as follows:

  1. Vehicles shall be valued at their tax value;
  2. All other property shall be valued at its fair cash value by the property valuation administrator;
  3. Property shall be valued as of the time of sale by the law enforcement agency.

History. Enact. Acts 1984, ch. 101, § 4, effective July 13, 1984.

218A.430. Maximum ceilings on proceeds. [Repealed.]

Compiler’s Notes.

This section (Enacts. Acts 1984, ch. 101, § 5, effective July 13, 1984) was repealed by Acts 1990, ch. 445, § 10, effective July 13, 1990.

218A.435. Asset forfeiture trust fund — Management — Distribution. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1984, ch. 101, § 6; 1990, ch. 445, § 6; 1992, ch. 211, § 80; 1998, ch. 426, § 492; 2005, ch. 99, § 552) was repealed by Acts 2007, ch. 124, § 17, effective June 26, 2007.

Legislative Research Commission Note.

(6/26/2007). Under KRS 446.260 , the repeal of this section in 2007 Ky. Acts ch. 124 prevails over its amendment in 2007 Ky. acts ch. 85.

NOTES TO DECISIONS

1.Use of Forfeited Funds.

When, after defendant was convicted of first degree trafficking in a controlled substance, money seized from him at the time of his arrest was ordered forfeited, that money could not be applied to the costs of his representation by appointed counsel because, under KRS 218A.410(2), title to the forfeited property vested in the Commonwealth of Kentucky as of the commission of the act giving rise to the forfeiture; so, when defendant was being represented at Commonwealth’s expense, the forfeited funds were not his, causing him to lack the ability to contribute to the costs of his defense, so that there was no statutory authority, under KRS 31.211(1) or (5), to order reimbursement of the costs of his representation from the forfeited funds, and KRS 218A.435(12) stated a mandatory process for distribution of the forfeited funds to law enforcement and the prosecuting attorney. Commonwealth v. Dep't of Public Advocacy, 2004 Ky. App. LEXIS 159 (Ky. Ct. App., sub. op., 2004 Ky. App. Unpub. LEXIS 928 (Ky. Ct. App. May 28, 2004).

218A.440. Statement filed listing property seized — Investigation of utilization of proceeds.

  1. Each law enforcement agency seizing money or property pursuant to KRS 218A.415 shall, at the close of each fiscal year, file a statement with the Auditor of Public Accounts, and with the secretary of justice and public safety containing, a detailed listing of all money and property seized in that fiscal year and the disposition thereof. The listing shall identify all property so seized.
  2. Any agency failing to report as required by this section shall be liable to the state for the full value of all property and money so seized. The Attorney General shall institute civil actions for recovery of money or property obtained or retained in violation of KRS 218A.405 to 218A.460 .
  3. The Auditor of Public Accounts, the secretary of justice and public safety or the Attorney General may at any time initiate an inquiry to determine that property is being forfeited as required by KRS 218A.405 to 218A.460 .

History. Enact. Acts 1984, ch. 101, § 7, effective July 13, 1984; 1990, ch. 445, § 5, effective July 13, 1990; 2007, ch. 85, § 255, effective June 26, 2007; 2007, ch. 124, § 15, effective June 26, 2007.

218A.450. Lien on forfeited property — Action by trustee — Release of lien.

  1. The Commonwealth shall have a lien on all property, real or personal, which is forfeit to the Commonwealth by virtue of KRS 218A.410 . This lien shall not be defeated by gift, devise, sale, alienation, or any means whatever except by sale to a subsequent bona fide purchaser for value without actual or constructive notice of the lien. The lien shall commence from the time the property becomes forfeit and shall have priority over any other obligation or liability following that time but shall be subordinate to any then existing perfected security interest on the property that is not itself subject to forfeiture.
  2. The Commonwealth may file on the official records of any one (1) or more counties a forfeiture lien notice of the lien created in subsection (1) of this section. No filing fee or other charge shall be required as a condition for filing the forfeiture lien notice, and the appropriate clerk shall, upon the presentation of a forfeiture lien notice, immediately record it in the official records.
  3. The forfeiture lien notice shall be signed by an attorney authorized to institute a forfeiture action on behalf of the Commonwealth. The notice shall set forth the following information:
    1. A description of the property which is subject to the lien;
    2. The name of the owner of record of the property subject to the lien if known;
    3. The date and place of seizure or location of any property not seized but subject to forfeiture;
    4. The violation of law alleged with respect to forfeiture of the property;
    5. A reference to any judicial proceeding pending against the property with reference to forfeiture, including the name of the county or counties where the proceeding has been brought, and, if known at the time of filing of the forfeiture lien notice, the case number of the proceeding, and the name of the defendant;
    6. The name and address of the attorney filing the forfeiture lien notice.
  4. The attorney filing the forfeiture lien notice shall, as soon as practicable after filing, furnish to any owner or lienholder of record either a copy of the recorded notice or a copy of the notice with annotation on it of the county or counties in which the notice has been recorded. Failure to provide a copy of the notice shall not invalidate or otherwise affect the lien.
  5. In conjunction with any forfeiture proceeding, an attorney representing the Commonwealth may file, without prior court order, in any county, a lis pendens under the provisions of KRS 382.440 , and any person acquiring an interest in the subject real property or interest in it, if the real property or interest is acquired subsequent to the filing of lis pendens, shall take the interest subject to any subsequent judgment of forfeiture.
    1. A trustee who acquires actual knowledge that a forfeiture lien notice or a forfeiture proceeding has been filed against any property to which he holds legal or record title, shall immediately furnish to the attorney representing the Commonwealth the following: (6) (a) A trustee who acquires actual knowledge that a forfeiture lien notice or a forfeiture proceeding has been filed against any property to which he holds legal or record title, shall immediately furnish to the attorney representing the Commonwealth the following:
      1. The name and address of the holder of the beneficial interest in the property, as known to the trustee;
      2. The name and address, as known to the trustee, of all other persons for whose benefit the trustee holds title to the personal or real property;
      3. If requested by the attorney representing the Commonwealth, a copy of the trust agreement or other instrument under which the trustee holds legal or record title to the personal or real property.
    2. Any trustee who knowingly fails to comply with the provisions of this section is guilty of a Class D felony.
  6. Any trustee who knowingly transfers or conveys title to personal or real property for which a forfeiture lien notice has been filed at the time of the transfer or conveyance in the county where the personal or real property is located shall be liable to the Commonwealth for the greater of:
    1. The amount of proceeds received directly from the property named in the forfeiture lien notice as a result of the transfer or conveyance;
    2. The amount of proceeds received by the trustee as a result of the transfer or conveyance and distributed to the holder of the beneficial interest in the property named in the forfeiture lien notice; or
    3. The fair market value of the interest of the property named in the forfeiture lien notice transferred or conveyed;

      but if the trustee transfers or conveys the personal or real property and holds the proceeds that would otherwise be paid or distributed to the beneficiary or at the discretion of the beneficiary or his designee, the trustee’s liability shall not exceed the amount of the proceeds held for so long as the proceeds are held by the trustee.

  7. The Commonwealth may bring a civil proceeding in any Circuit Court against the trustee to recover from the trustee the amounts set forth in subsection (7) of this section, and the Commonwealth shall also be entitled to recover investigative costs and attorney’s fees incurred.
    1. The provisions of this section shall not apply to any transfer or conveyance by a trustee under a court order, unless the court order is entered in an action between the trustee and the beneficiary. (9) (a) The provisions of this section shall not apply to any transfer or conveyance by a trustee under a court order, unless the court order is entered in an action between the trustee and the beneficiary.
    2. Unless the trustee has actual knowledge that property is named in a forfeiture lien notice, this section shall not apply to:
      1. Any conveyance by a trustee required under the terms of any trust agreement where the trust agreement is a matter of public record prior to the filing of any forfeiture lien notice; or
      2. Any transfer or conveyance by a trustee to all of the persons who own a beneficial interest in the trust.
  8. The term of a forfeiture lien notice shall be for a period of six (6) years from the date of filing unless a renewal forfeiture lien notice has been filed, and, in such case, the term of the renewal forfeiture lien notice shall be for a period of six (6) years from the date of its filing. The Commonwealth shall be entitled to only one (1) renewal of the forfeiture lien notice.
  9. The attorney who filed the forfeiture lien notice may release in whole or part any forfeiture lien notice or may release any personal or real property or interest in it from the forfeiture lien notice upon the terms and conditions he determines. Any executed release of a forfeiture lien notice shall be filed in the official records of any county. No charge or fee shall be imposed for the filing of any release of forfeiture lien notice.
  10. If no court proceeding to obtain an order of forfeiture is pending against the property named in a forfeiture lien notice at the time of its filing, for purposes only of contesting the notice, it shall be treated as a seizure pursuant to KRS 218A.415 .
  11. An agent of the Commonwealth shall have a continuing right to inspect property against which a forfeiture lien has been placed pursuant to this section and the Commonwealth shall have the authority to stay any civil foreclosure or repossession actions concerning property subject to the lien pending final order of forfeiture.

History. Enact. Acts 1990, ch. 445, § 8, effective July 13, 1990.

NOTES TO DECISIONS

1.Perfection of Title.

When KRS 218A.410(2) is read in conjunction with KRS 218A.450(1) and 218A.460(2), it is clear that the Commonwealth’s title to property is not perfected until a final order of forfeiture is entered by the trial court. Prior to this occurrence, the Commonwealth merely holds a lien against the property which is subject to forfeiture. Commonwealth v. Maynard, 294 S.W.3d 43, 2009 Ky. App. LEXIS 128 (Ky. Ct. App. 2009).

Research References and Practice Aids

Northern Kentucky Law Review.

Brandt, Kentucky Real Estate Law Survey: 1990 Through 1993, 21 N. Ky. L. Rev. 435 (1994).

218A.460. Jurisdiction — Ancillary hearing — Application of forfeiture procedures.

  1. Jurisdiction in all forfeiture proceedings shall vest in the court where the conviction occurred regardless of the value of property subject to forfeiture.
  2. Following conviction of a defendant for any violation of this chapter, the court shall conduct an ancillary hearing to forfeit property if requested by any party other than the defendant or Commonwealth. The Commonwealth’s attorney, or county attorney if the proceeding is in District Court, shall initiate the hearing by filing a motion requesting entry of a final order of forfeiture upon proof that the property was being used in violation of the provisions of this chapter. The final order of forfeiture by the court shall perfect in the Commonwealth or appropriate law enforcement agency, as provided in KRS 218A.420 , right, title, and interest in and to the property. The Commonwealth may transfer any real property so forfeited by deed of general warranty.
  3. If the property subject to forfeiture is of a type for which title or registration is required by law, or if the owner of the property is known in fact to the Commonwealth at the time of the hearing, or if the property is subject to a perfected security interest in accordance with the Uniform Commercial Code, KRS Chapter 355, the attorney representing the Commonwealth shall give notice of the ancillary hearing by registered mail, return receipt requested, to each person having such interest in the property, and shall publish notice of the forfeiture once each week for two (2) consecutive weeks in a newspaper of general circulation as defined in KRS Chapter 424 in the county where the forfeiture proceedings will occur. The notice shall be mailed and first published at least four (4) weeks prior to the ancillary hearing and shall describe the property; state the county, place, and date of seizure; state the name of the law enforcement agency holding the seized property; and state the name of the court in which the ancillary hearing will be held and the date of the hearing. However, the Commonwealth shall be obligated only to make a diligent search and inquiry as to the owner of subject property; and if, after diligent search and inquiry, the Commonwealth is unable to ascertain the owner, the actual notice requirements by mail shall not be applicable.
  4. Unless otherwise expressly provided in KRS 218A.410 , the burden shall be upon claimant to property to prove by preponderance of the evidence that it is not subject to forfeiture. Any claimant other than a person who holds title or registration to the property or who has a perfected security interest in the property shall be required to post a bond equivalent to ten percent (10%) of the appraised value of the property with the clerk of the court before being allowed to litigate the claim. The bond shall offset the costs of litigation incurred by the Commonwealth. A claimant may proceed in forma pauperis with leave of court upon sworn petition subject to the applicable rules and subject to the provisions of law concerning perjury.
  5. The procedures for forfeiture proceedings as established in KRS 218A.405 to 218A.460 shall apply to any property subject to forfeiture which is pending as of July 13, 1990.

History. Enact. Acts 1990, ch. 445, § 9, effective July 13, 1990; 2007, ch. 124, § 16, effective June 26, 2007.

NOTES TO DECISIONS

1.State’s Burden of Proof.

Order of forfeiture was reversed since the state failed to present sufficient evidence that the property seized was traceable to defendant’s acts of drug trafficking. Harbin v. Commonwealth, 121 S.W.3d 191, 2003 Ky. LEXIS 172 ( Ky. 2003 ).

Circuit court erred in denying defendant’s motion to return money seized during a search of his business because he entitled to a forfeiture hearing where the record made it clear that defendant was charged with crimes in connection with property seized from his residence, the record did not include any information regarding the search of defendant’s business when he entered his plea, and the record indicated the Commonwealth was unaware of the search until defendant filed his motion for the return of money seized from his business. Lee v. Commonwealth, 606 S.W.3d 95, 2020 Ky. App. LEXIS 91 (Ky. Ct. App. 2020).

2.Notice.

Where defendant was not provided notice of forfeiture and an opportunity to be heard, he lacked the ability to rebut the presumption that his property was not forfeitable, and thus the order of forfeiture was reversed. Harbin v. Commonwealth, 121 S.W.3d 191, 2003 Ky. LEXIS 172 ( Ky. 2003 ).

Since there was no evidence that the claimants to the scooter, defendant’s children, had received notice of the forfeiture under KRS 218A.460(3), it was error to order the forfeiture. Olden v. Commonwealth, 203 S.W.3d 672, 2006 Ky. LEXIS 255 ( Ky. 2006 ).

3.Perfection of Title.

When KRS 218A.410(2) is read in conjunction with KRS 218A.450(1) and 218A.460(2), it is clear that the Commonwealth’s title to property is not perfected until a final order of forfeiture is entered by the trial court. Prior to this occurrence, the Commonwealth merely holds a lien against the property which is subject to forfeiture. Commonwealth v. Maynard, 294 S.W.3d 43, 2009 Ky. App. LEXIS 128 (Ky. Ct. App. 2009).

4.Appeal.

Because the Commonwealth had failed to name a decedent’s heirs as parties in its notice of appeal from a forfeiture proceeding, dismissal of the appeal was required under CR 73.02. The heirs were indispensable parties to the appeal, as once the Commonwealth’s lien on the real property was extinguished, the heirs became its true and unencumbered owners, and any appeal could not be perfected unless the notice of appeal included as named parties any “owner of the property” under KRS 218A.460(3). Commonwealth v. Maynard, 294 S.W.3d 43, 2009 Ky. App. LEXIS 128 (Ky. Ct. App. 2009).

Opinions of Attorney General.

Jurisdiction to order the return to defendant of personal property seized for forfeiture does not vest in any court until there has been a conviction. Until that time, property is not subject to replevin, but is deemed to be in the custody of the appropriate law enforcement agency. The Commonwealth may hold property which may be subject to forfeiture under the penal code until the underlying criminal charges have been resolved, and upon conviction subject the property to forfeiture. A district court order directing that personal property seized incident to an arrest or by execution of a search warrant be returned to the defendant is not a final action, so a direct appeal would not be available. Rather, review, if any, would be available through an original proceeding for relief in the nature of mandamus or prohibition in the Circuit Court pursuant to the authority of SCR 1.040(6), CR 81 and KRS 24A.010(2). OAG 91-67 .

Research References and Practice Aids

Northern Kentucky Law Review.

Rouse, An Ounce of Prevention: The Kentucky Hotline System, 21 N. Ky. L. Rev. 425 (1994).

Brandt, Kentucky Real Estate Law Survey: 1990 Through 1993, 21 N. Ky. L. Rev. 435 (1994).

Drug Paraphernalia

218A.500. Definitions for KRS 218A.500 and 218A.510 — Unlawful practices — Substance abuse treatment outreach program — Informing peace officer about presence of needles or other sharp objects before search — Penalties.

As used in this section and KRS 218A.510 :

  1. “Drug paraphernalia” means all equipment, products and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter. It includes but is not limited to:
    1. Kits used, intended for use, or designed for use in planting, propagating, cultivating, growing, or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived;
    2. Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances;
    3. Isomerization devices used, intended for use, or designed for use in increasing the potency of any species of plant which is a controlled substance;
    4. Testing equipment used, intended for use, or designed for use in identifying, or in analyzing the strength, effectiveness or purity of controlled substances;
    5. Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances;
    6. Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used, intended for use, or designed for use in cutting controlled substances;
    7. Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining marijuana;
    8. Blenders, bowls, containers, spoons, and mixing devices used, intended for use, or designed for use in compounding controlled substances;
    9. Capsules, balloons, envelopes, and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances;
    10. Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances;
    11. Hypodermic syringes, needles, and other objects used, intended for use, or designed for use in parenterally injecting controlled substances into the human body; and
    12. Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body, such as: metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls; water pipes; carburetion tubes and devices; smoking and carburetion masks; roach clips which mean objects used to hold burning material, such as marijuana cigarettes, that have become too small or too short to be held in the hand; miniature cocaine spoons, and cocaine vials; chamber pipes; carburetor pipes; electric pipes; air-driven pipes; chillums; bongs; ice pipes or chillers.
  2. It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia for the purpose of planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packing, repacking, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter.
  3. It is unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter.
  4. It is unlawful for any person to place in any newspaper, magazine, handbill, or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia.
    1. This section shall not prohibit a local health department from operating a substance abuse treatment outreach program which allows participants to exchange hypodermic needles and syringes. (5) (a) This section shall not prohibit a local health department from operating a substance abuse treatment outreach program which allows participants to exchange hypodermic needles and syringes.
    2. To operate a substance abuse treatment outreach program under this subsection, the local health department shall have the consent, which may be revoked at any time, of the local board of health and:
      1. The legislative body of the first or home rule class city in which the program would operate if located in such a city; and
      2. The legislative body of the county, urban-county government, or consolidated local government in which the program would operate.
    3. Items exchanged at the program shall not be deemed drug paraphernalia under this section while located at the program.
    1. Prior to searching a person, a person’s premises, or a person’s vehicle, a peace officer may inquire as to the presence of needles or other sharp objects in the areas to be searched that may cut or puncture the officer and offer to not charge a person with possession of drug paraphernalia if the person declares to the officer the presence of the needle or other sharp object. If, in response to the offer, the person admits to the presence of the needle or other sharp object prior to the search, the person shall not be charged with or prosecuted for possession of drug paraphernalia for the needle or sharp object or for possession of a controlled substance for residual or trace drug amounts present on the needle or sharp object. (6) (a) Prior to searching a person, a person’s premises, or a person’s vehicle, a peace officer may inquire as to the presence of needles or other sharp objects in the areas to be searched that may cut or puncture the officer and offer to not charge a person with possession of drug paraphernalia if the person declares to the officer the presence of the needle or other sharp object. If, in response to the offer, the person admits to the presence of the needle or other sharp object prior to the search, the person shall not be charged with or prosecuted for possession of drug paraphernalia for the needle or sharp object or for possession of a controlled substance for residual or trace drug amounts present on the needle or sharp object.
    2. The exemption under this subsection shall not apply to any other drug paraphernalia that may be present and found during the search or to controlled substances present in other than residual or trace amounts.
  5. Any person who violates any provision of this section shall be guilty of a Class A misdemeanor.

History. Enact. Acts 1982, ch. 413, § 2, effective July 15, 1982; 1992, ch. 441, § 8, effective July 14, 1992; 2010, ch. 149, § 14, effective April 13, 2010; 2010, ch. 160, § 14, effective April 26, 2010; 2015 ch. 66, § 18, effective March 25, 2015.

NOTES TO DECISIONS

1.Double Jeopardy.

Where one conviction was for the present or past use of the paraphernalia to manufacture methamphetamine, KRS 218A.1432(1)(a), and the other conviction was for an intent to use the paraphernalia in the future to manufacture additional methamphetamine, KRS 218A.500(2), each offense required proof of an element that the other did not and no double jeopardy violation occurred. Fulcher v. Commonwealth, 149 S.W.3d 363, 2004 Ky. LEXIS 274 ( Ky. 2004 ), overruled in part, Ballinger v. Commonwealth, 459 S.W.3d 349, 2015 Ky. LEXIS 1611 ( Ky. 2015 ).

2.Drug Paraphernalia.

Defendant’s double jeopardy claim with respect to drug possession charges arising from seizure of a liquid that tested positive for methamphetamine failed because (1) the indictment did not charge defendant with the offense of possession of methamphetamine, KRS 218A.1415(1), and (2) the product of the manufacturing process, e.g., the methamphetamine that was actually manufactured, was not within the definition of “drug paraphernalia” under KRS 218A.500(1); thus defendant could not have been convicted of any crime except manufacturing methamphetamine premised upon his possession of the liquid that tested positive for methamphetamine; furthermore, because the trial court did not instruct the jury on the “to use” theory of KRS 218A.500(2), defendant could not have been convicted for possessing empty Prestone starting fluid cans seized on two (2) occasions when police searched his property. Fulcher v. Commonwealth, 149 S.W.3d 363, 2004 Ky. LEXIS 274 ( Ky. 2004 ), overruled in part, Ballinger v. Commonwealth, 459 S.W.3d 349, 2015 Ky. LEXIS 1611 ( Ky. 2015 ).

Less culpable of two (2) codefendants had convictions vacated because of insufficient evidence of manufacturing methamphetamine under KRS 218A.1432 , which was firearm enhanced under KRS 218A.992 , possession of anhydrous ammonia in an unapproved container with intent to manufacture methamphetamine under KRS 250.489(1), 250.991(2), and receiving stolen property valued at $300 or more, KRS 514.110(1), (3). That defendant, however, was to be retried for possession of drug paraphernalia, subsequent offense, under KRS 218A.500(2),(5). Hayes v. Commonwealth, 175 S.W.3d 574, 2005 Ky. LEXIS 332 ( Ky. 2005 ).

KRS 218A.500 and KRS 218A.510 were constitutional, as applied to defendant. The statutes were not overbroad, because the facts surrounding defendant’s arrest provided a context to support a citation for possession of drug paraphernalia; the statutes were not vague, as they clearly gave a person of common intelligence notice of what was unlawful under the statutes; and the statutes did not violate defendant’s equal protection rights under Ky. Const. §§ 1, 2, and 3, as nothing in either statute could be construed as treating like persons differently. Atkins v. Commonwealth, 2007 Ky. App. LEXIS 285 (Ky. Ct. App. Aug. 17, 2007), review denied, ordered not published, 2007 Ky. LEXIS 257 (Ky. Nov. 15, 2007).

Defendant’s defense to the charge of possession of drug paraphernalia was to deny knowledge and ownership of the crack pipe, and intent was not an issue and defendant did not present the lack thereof as a defense; hence, any error which may have occurred by omitting the “intent” element from the jury instructions on this count was harmless. Boyd v. Commonwealth, 357 S.W.3d 216, 2011 Ky. App. LEXIS 152 (Ky. Ct. App. 2011).

Jury instruction on possession of drug paraphernalia was proper where the evidence established, and the jury concluded, that defendant was guilty of possession of drug paraphernalia because three crack pipes with fresh residue were lying right behind him and a fresh Brillo pad and residue were found on a table next to him; the language of the jury instruction in question did not contain alternate theories of guilt and the inclusion of the language “and/or foil” in the instruction was not an alternative theory of guilt. Jackson v. Commonwealth, 343 S.W.3d 647, 2011 Ky. App. LEXIS 156 (Ky. Ct. App. 2011).

3.Lesser Included Offense.

In a prosecution for first-degree possession of a controlled substance, defendant was not entitled to a jury instruction on possession of drug paraphernalia, since such offense was not a lesser-included offense of possession of a controlled substance; and a finding of guilt regarding possession of drug paraphernalia would not have precluded a finding of guilt regarding possession of a controlled substance. Bethel v. Commonwealth, 2007 Ky. App. LEXIS 105 (Ky. Ct. App. Apr. 13, 2007).

Although there was sufficient evidence to convict defendant of possession of drug paraphernalia (second offense), a felony, because an essential element of the offense of possession of drug paraphernalia (second offense) requiring that defendant be convicted of a prior misdemeanor was missing from the penalty phase jury instructions given, defendant could have only been found guilty of possession of drug paraphernalia (first offense), a misdemeanor. Stewart v. Commonwealth, 306 S.W.3d 502, 2010 Ky. LEXIS 57 ( Ky. 2010 ).

4.Sufficiency of Evidence.

Evidence supported defendant’s conviction for complicity to use/possession of drug paraphernalia under KRS 218A.500 and 502.020 as: (1) defendant climbed out a window of a trailer and attempted to flee when officers arrived; (2) defendant was unseasonably dressed when defendant was apprehended; (3) there was a strong odor of ammonia on the clothes of defendant; (4) defendant and codefendant led the officers to believe the trailer was defendant’s home; and (5) the written consent form defendant signed allowing officers to search the trailer clearly indicated defendant was giving the officers consent to search the home of defendant. Cantrell v. Commonwealth, 288 S.W.3d 291, 2009 Ky. LEXIS 162 ( Ky. 2009 ).

5.Persistent Felony Offender.

Trial court’s jury instruction for first-degree persistent felony offender conviction was incorrect because KRS 532.080(8) was unambiguous that a conviction for possession of drug paraphernalia under KRS 218A.500 could not be used as a predicate for first-degree persistent felony offender status. Sanders v. Commonwealth, 301 S.W.3d 497, 2009 Ky. LEXIS 344 ( Ky. 2009 ).

6.Search and Seizure.

Though the search of defendant’s car incident to his arrest was illegal under Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485, 2009 U.S. LEXIS 3120, which was decided after the search, as the officers conducting the search reasonably relied on New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768, 1981 U.S. LEXIS 13, under which the search was legal, the exclusionary rule did not apply and defendant’s motion to suppress drugs and paraphernalia found during the search was properly denied. Valesquez v. Commonwealth, 362 S.W.3d 346, 2011 Ky. App. LEXIS 207 (Ky. Ct. App. 2011).

7.Amendments.

Trial court erred in voiding defendant’s pretrial diversion agreement and sentencing her under the prior law because, while the trial court had authority to void defendant’s plea agreement in its entirety, no judgment had been entered against her when she violated the terms of her pretrial diversion and faced sentencing, and the sentence recommended by the Commonwealth became inappropriate due to the 2010 change to the drug paraphernalia statute. Smith v. Commonwealth, 400 S.W.3d 742, 2013 Ky. LEXIS 296 ( Ky. 2013 ).

Cited:

Clay v. Commonwealth, 867 S.W.2d 200, 1993 Ky. App. LEXIS 109 (Ky. Ct. App. 1993); Coleman v. Commonwealth, 100 S.W.3d 745, 2002 Ky. LEXIS 247 ( Ky. 2002 ); Coleman v. Commonwealth, 100 S.W.3d 745, 2002 Ky. LEXIS 247 ( Ky. 2002 ), overruled in part, Bratcher v. Commonwealth, 424 S.W.3d 411, 2014 Ky. LEXIS 85 ( Ky. 2014 )Adkins v. Commonwealth, 96 S.W.3d 779, 2003 Ky. LEXIS 13 ( Ky. 2003 ); Mobley v. Commonwealth, — S.W.3d —, 2003 Ky. App. LEXIS 223 (Ky. Ct. App. 2003), rev'd, 160 S.W.3d 783, 2005 Ky. LEXIS 13 9 ( Ky. 2005 ); Hatcher v. Commonwealth, — S.W.3d —, 2004 Ky. App. LEXIS 49 (Ky. Ct. App. 2004), aff'd, 199 S.W.3d 124, 2006 Ky. LEXIS 131 ( Ky. 2006 ); Nash v. Commonwealth, — S.W.3d —, 2008 Ky. App. LEXIS 41 (Ky. Ct. App. 2008); Sanders v. Commonwealth, — S.W.3d —, 2009 Ky. LEXIS 142 ( Ky. 2009 ); Perdue v. Commonwealth, 411 S.W.3d 786, 2013 Ky. App. LEXIS 145 (Ky. Ct. App. 2013).; Doebler v. Commonwealth, 2019 Ky. App. LEXIS 194 (Ky. Ct. App. Nov. 1, 2019).

Opinions of Attorney General.

As urban-county health departments are not exempted from the prohibition of subsection (3) of this section, a needle exchange program of said department would violate subsection (3). OAG 92-93 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part. 4 Miscellaneous KRS 218A Offenses, §§ 9.34A — 9.34C.

218A.500. Definitions for KRS 218A.500 and 218A.510 — Unlawful practices — Substance abuse treatment outreach program — Informing peace officer about presence of needles or other sharp objects before search — Penalties.

As used in this section and KRS 218A.510 :

  1. “Drug paraphernalia” means all equipment, products and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter. It includes but is not limited to:
    1. Kits used, intended for use, or designed for use in planting, propagating, cultivating, growing, or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived;
    2. Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances;
    3. Isomerization devices used, intended for use, or designed for use in increasing the potency of any species of plant which is a controlled substance;
    4. Testing equipment used, intended for use, or designed for use in identifying, or in analyzing the strength, effectiveness or purity of controlled substances;
    5. Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances;
    6. Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used, intended for use, or designed for use in cutting controlled substances;
    7. Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining marijuana;
    8. Blenders, bowls, containers, spoons, and mixing devices used, intended for use, or designed for use in compounding controlled substances;
    9. Capsules, balloons, envelopes, and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances;
    10. Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances;
    11. Hypodermic syringes, needles, and other objects used, intended for use, or designed for use in parenterally injecting controlled substances into the human body; and
    12. Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body, such as: metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls; water pipes; carburetion tubes and devices; smoking and carburetion masks; roach clips which mean objects used to hold burning material, such as marijuana cigarettes, that have become too small or too short to be held in the hand; miniature cocaine spoons, and cocaine vials; chamber pipes; carburetor pipes; electric pipes; air-driven pipes; chillums; bongs; ice pipes or chillers.
  2. It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia for the purpose of planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packing, repacking, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter.
  3. It is unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter.
  4. It is unlawful for any person to place in any newspaper, magazine, handbill, or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia.
    1. This section shall not prohibit a local health department from operating a substance abuse treatment outreach program which allows participants to exchange hypodermic needles and syringes. (5) (a) This section shall not prohibit a local health department from operating a substance abuse treatment outreach program which allows participants to exchange hypodermic needles and syringes.
    2. To operate a substance abuse treatment outreach program under this subsection, the local health department shall have the consent, which may be revoked at any time, of the local board of health and:
      1. The legislative body of the first or home rule class city in which the program would operate if located in such a city; and
      2. The legislative body of the county, urban-county government, or consolidated local government in which the program would operate.
    3. Items exchanged at the program shall not be deemed drug paraphernalia under this section while located at the program.
    1. Prior to searching a person, a person’s premises, or a person’s vehicle, a peace officer may inquire as to the presence of needles or other sharp objects in the areas to be searched that may cut or puncture the officer and offer to not charge a person with possession of drug paraphernalia if the person declares to the officer the presence of the needle or other sharp object. If, in response to the offer, the person admits to the presence of the needle or other sharp object prior to the search, the person shall not be charged with or prosecuted for possession of drug paraphernalia for the needle or sharp object or for possession of a controlled substance for residual or trace drug amounts present on the needle or sharp object. (6) (a) Prior to searching a person, a person’s premises, or a person’s vehicle, a peace officer may inquire as to the presence of needles or other sharp objects in the areas to be searched that may cut or puncture the officer and offer to not charge a person with possession of drug paraphernalia if the person declares to the officer the presence of the needle or other sharp object. If, in response to the offer, the person admits to the presence of the needle or other sharp object prior to the search, the person shall not be charged with or prosecuted for possession of drug paraphernalia for the needle or sharp object or for possession of a controlled substance for residual or trace drug amounts present on the needle or sharp object.
    2. The exemption under this subsection shall not apply to any other drug paraphernalia that may be present and found during the search or to controlled substances present in other than residual or trace amounts.
    1. This section shall not prohibit the retail sale of hypodermic syringes and needles without a prescription in pharmacies. (7) (a) This section shall not prohibit the retail sale of hypodermic syringes and needles without a prescription in pharmacies.
    2. Hypodermic syringe and needle inventory of a pharmacy shall not be deemed drug paraphernalia under this section.
  5. Any person who violates any provision of this section shall be guilty of a Class A misdemeanor.

HISTORY: Enact. Acts 1982, ch. 413, § 2, effective July 15, 1982; 1992, ch. 441, § 8, effective July 14, 1992; 2010, ch. 149, § 14, effective April 13, 2010; 2010, ch. 160, § 14, effective April 26, 2010; 2015 ch. 66, § 18, effective March 25, 2015; 2021 ch. 56, § 2.

218A.510. Factors to be considered in determining whether object is drug paraphernalia.

In determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, the following:

  1. Statements by an owner or by anyone in control of the object concerning its use;
  2. Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance;
  3. The proximity of the object, in time and space, to a direct violation of KRS 218A.500(2), (3) or (4);
  4. The proximity of the object to controlled substances;
  5. The existence of any residue of controlled substances on the object;
  6. Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of KRS 218A.500(2), (3) or (4); the innocence of an owner, or of anyone in control of the object, as to a direct violation of KRS 218A.500(2), (3) or (4) shall not prevent a finding that the object is intended for use, or designed for use as drug paraphernalia;
  7. Instructions, oral or written, provided with the object concerning its use;
  8. Descriptive materials accompanying the object which explain or depict its use;
  9. National and local advertising concerning its use;
  10. The manner in which the object is displayed for sale;
  11. Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;
  12. Direct or circumstantial evidence of the ratio of sales of the object to the total sales of the business enterprise;
  13. The existence and scope of legitimate uses for the object in the community;
  14. Expert testimony concerning its use.

History. Enact. Acts 1982, ch. 413, § 3, effective July 15, 1982.

NOTES TO DECISIONS

1.Constitutionality.

Because there was evidence that the residue on the pipes found in defendant’s possession was cocaine, the motion for a directed verdict on the controlled-substance possession charge was properly denied. Hampton v. Commonwealth, 231 S.W.3d 740, 2007 Ky. LEXIS 162 ( Ky. 2007 ).

KRS 218A.500 and KRS 218A.510 were constitutional, as applied to defendant. The statutes were not overbroad, because the facts surrounding defendant’s arrest provided a context to support a citation for possession of drug paraphernalia; the statutes were not vague, as they clearly gave a person of common intelligence notice of what was unlawful under the statutes; and the statutes did not violate defendant’s equal protection rights under Ky. Const. §§ 1, 2, and 3, as nothing in either statute could be construed as treating like persons differently. Atkins v. Commonwealth, 2007 Ky. App. LEXIS 285 (Ky. Ct. App. Aug. 17, 2007), review denied, ordered not published, 2007 Ky. LEXIS 257 (Ky. Nov. 15, 2007).

Cited:

Hatcher v. Commonwealth, — S.W.3d —, 2004 Ky. App. LEXIS 49 (Ky. Ct. App. 2004), aff’d, 199 S.W.3d 124, 2006 Ky. LEXIS 131 ( Ky. 2006 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Penalties

218A.990. Penalties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 226, § 31; 1974, ch. 74, Art. VI, § 107(1); 1978, ch. 384, § 75, effective June 17, 1978; 1980, ch. 161, § 3, effective July 15, 1980; 1982, ch. 80, § 1, effective July 15, 1982; 1982, ch. 237, § 1, effective July 15, 1982; 1982, ch. 413, § 1, effective July 15, 1982; 1982, ch. 419, § 4, effective July 15, 1982; 1988, ch. 181, § 1, effective July 15, 1988; 1988, ch. 182, § 1, effective July 15, 1988; 1988, ch. 219, § 1, effective July 15, 1988; 1988, ch. 220, § 1, effective July 15, 1988; 1988, ch. 221, § 1, effective July 15, 1988; 1988, ch. 389, § 1, effective July 15, 1988; 1990, ch. 160, § 3, effective July 13, 1990; 1992, ch. 442, § 7) was repealed by Acts 1992, ch. 441, § 30, effective July 14, 1992.

Legislative Research Commission Note.

(7/14/92). This section was amended by the 1992 Regular Session of the General Assembly and also repealed. Pursuant to KRS 446.260 , the repeal prevails.

218A.991. Revocation or denial of operator’s license.

  1. Whenever a person who is seventeen (17) years of age or younger but not less than fourteen (14) years of age is convicted of a violation of any offense in this chapter or is adjudicated delinquent as a result of any act which would be an offense under this chapter, the court may, in addition to any other penalty:
    1. If the person has a motor vehicle or motorcycle operator’s license, recommend the revocation of the license for a period not to exceed one (1) year, if it is the person’s first offense;
    2. If the person has a motor vehicle or motorcycle operator’s license, recommend the revocation of the license for two (2) years, if it is a second or subsequent offense so long as the suggested period of revocation does not extend beyond the person’s eighteenth birthday; and
    3. If the person has no motor vehicle or motorcycle operator’s license, in the event of a first offense, recommend that no such license shall be issued to such person for the period described in paragraph (a) of this subsection and in the event of a second or subsequent offense, recommend that no license shall be issued to such person for the period described in paragraph (b) of this subsection.
  2. Each court recommending the revocation of a motor vehicle operator’s license or motorcycle operator’s license or recommending the denial of such license pursuant to this section shall notify the Transportation Cabinet of the violation and the terms of the suggested revocation or denial.
  3. Upon notice of such recommendation, the Transportation Cabinet shall forthwith revoke the license of that person, or deny to that person a license for the period recommended by the court. If through inadvertence the defendant should be issued a license, the cabinet shall forthwith cancel it.
  4. Licenses revoked pursuant to this section shall be retained by the Transportation Cabinet for the period of revocation and shall be returned to the person after the expiration of the revocation period upon payment of the reinstatement fees and satisfaction of other requirements for the reinstatement of revoked licenses as may be required by the Transportation Cabinet.
  5. Revocations of operator’s licenses and denials of licenses pursuant to this section shall be in addition to any other suspension, revocation, or denial of motor vehicle or motorcycle operator’s licenses authorized by law.

History. Enact. Acts 1984, ch. 115, § 1, effective July 13, 1984.

218A.992. Enhancement of penalty when in possession of a firearm at the time of commission of offense.

  1. Other provisions of law notwithstanding, any person who is convicted of any violation of this chapter who, at the time of the commission of the offense and in furtherance of the offense, was in possession of a firearm, shall:
    1. Be penalized one (1) class more severely than provided in the penalty provision pertaining to that offense if it is a felony; or
    2. Be penalized as a Class D felon if the offense would otherwise be a misdemeanor.
  2. The provisions of this section shall not apply to a violation of KRS 218A.210 , 218A.1450 , 218A.1451 , or 218A.1452 .

History. Enact. Acts 1994, ch. 396, § 5, effective July 15, 1994; 2005, ch. 150, § 12, effective June 20, 2005; 2010, ch. 149, § 15, effective April 13, 2010; 2010, ch. 160, § 15, effective April 26, 2010; 2011, ch. 45, § 13, effective March 16, 2011; 2012, ch. 108, § 14, effective April 11, 2012.

NOTES TO DECISIONS

Analysis

1.Constitutionality.

This section definitely warns those violating the provisions of Chapter 218A that they will be subject to an enhanced penalty if the violation occurs while they are in possession of a firearm and is therefore not unconstitutionally vague. Adams v. Commonwealth, 931 S.W.2d 465, 1996 Ky. App. LEXIS 157 (Ky. Ct. App. 1996), overruled in part, Mills v. Dep't of Corr. Offender Info. Servs., 438 S.W.3d 328, 2014 Ky. LEXIS 328 ( Ky. 2014 ).

This section, providing for enhanced penalty for violations of Chapter 218A while in possesssion of a firearm, is not unconstitutionally overbroad and does not violate Kentucky’s double jeopardy provision. Adams v. Commonwealth, 931 S.W.2d 465, 1996 Ky. App. LEXIS 157 (Ky. Ct. App. 1996), overruled in part, Mills v. Dep't of Corr. Offender Info. Servs., 438 S.W.3d 328, 2014 Ky. LEXIS 328 ( Ky. 2014 ).

2.Constructive Possession of Firearm.

A drug violation penalty may be enhanced under this section if the violator has constructive possession of a firearm. Houston v. Commonwealth, 975 S.W.2d 925, 1998 Ky. LEXIS 123 ( Ky. 1998 ), limited, Commonwealth v. Montaque, 23 S.W.3d 629, 2000 Ky. LEXIS 41 ( Ky. 2000 ).

Trial court did not err in allowing admission of evidence at the guilt phase of the trial, as opposed to the sentencing phase, that defendant possessed a handgun, as the evidence showed that defendant at least had constructive possession of the handgun and the issue of whether defendant possessed it involved a question of fact for the jury which was properly decided at the guilt phase of the trial. Kotila v. Commonwealth, 2002 Ky. LEXIS 241 (Ky. Dec. 19, 2002).

3.Nexus Shown.

Sufficient nexus was shown between defendant’s constructive possession of a firearm within defendant’s “immediate control” when arrested, and defendant’s constructive possession of drugs and drug paraphernalia, such that the Commonwealth did not have to prove any connection between the offense and the possession for the sentence enhancement, pursuant to KRS 218A.992 , to be applicable; when it could not be established that a defendant was in actual possession of a firearm or that a firearm was within the defendant’s immediate control upon arrest, then the Commonwealth had to prove more than mere possession, and the Commonwealth had to prove some connection between the firearm possession and the crime. Johnson v. Commonwealth, 105 S.W.3d 430, 2003 Ky. LEXIS 117 ( Ky. 2003 ).

Trial court did not err in denying defendant’s motions for a directed verdict of acquittal on a possession of marijuana while in possession of a firearm charge as the baggies of marijuana and digital scales were found under a coffee table in the living room, the partially burnt marijuana cigarettes were found in an ashtray on top of the coffee table and in a can located under the table, and the rifle was found leaning against a wall near a couch in the living room; the evidence was sufficient to allow a reasonable juror to infer that a nexus existed between the rifle seized from defendant’s residence and the drug offense for which he was convicted. Lunsford v. Commonwealth, 139 S.W.3d 926, 2004 Ky. App. LEXIS 204 (Ky. Ct. App. 2004).

4.Nexus Acquired.

The statute requires a nexus between the crime committed and the possession of a firearm; mere contemporaneous possession of a firearm is not sufficient to satisfy the nexus requirement. Commonwealth v. Montaque, 23 S.W.3d 629, 2000 Ky. LEXIS 41 ( Ky. 2000 ).

5.Sufficiency of Evidence.

Less culpable of two (2) codefendants had convictions vacated because of insufficient evidence of manufacturing methamphetamine under KRS 218A.1432 , which was firearm enhanced under KRS 218A.992 , possession of anhydrous ammonia in an unapproved container with intent to manufacture methamphetamine under KRS 250.489(1), 250.991(2), and receiving stolen property valued at $300 or more, KRS 514.110(1), (3). That defendant, however, was to be retried for possession of drug paraphernalia, subsequent offense, under KRS 218A.500(2),(5). Hayes v. Commonwealth, 175 S.W.3d 574, 2005 Ky. LEXIS 332 ( Ky. 2005 ).

Sufficient evidence existed for the jury to determine that defendant possessed a firearm in furtherance of firearm-enhanced charges because a loaded firearm was found under the front seat of the car that defendant was driving immediately before defendant’s arrest and defendant had hidden narcotics on defendant’s person and in the car. McCloud v. Commonwealth, 286 S.W.3d 780, 2009 Ky. LEXIS 152 ( Ky. 2009 ).

6.Jury Instructions.

The jury instructions as to the firearm enhancement were proper where: (i) the jury was properly instructed that it had to find the elements of the firearm enhancement provision beyond a reasonable doubt, (ii) the jury instructions explicitly asked whether the jury found defendant guilty of each drug offense and whether the jury believed from the evidence beyond a reasonable doubt that he was in possession of a firearm when he committed the offense and in furtherance of the offense, (iii) this “in furtherance” language properly tracked KRS 237.060 and, certainly, was more than adequate to fulfill the requirement that a nexus between the firearm possession and the drug offense be shown, and (iv) the jury was also instructed on the definition of a firearm with the exact language of KRS 237.060(2). Campbell v. Commonwealth, 260 S.W.3d 792, 2008 Ky. LEXIS 177 ( Ky. 2008 ).

7.Affirmative Defenses.

Because the operability of the firearm is not an element of the firearm enhancement, the inoperability of a firearm is an affirmative defense for which the defense has the burden of proof. Campbell v. Commonwealth, 260 S.W.3d 792, 2008 Ky. LEXIS 177 ( Ky. 2008 ).

8.Guilt Phase of Trial.

Trial court did not err by sentencing defendant to a twenty-year term of imprisonment for first-degree possession of a controlled substance, firearm enhanced, in violation of KRS 218A.1415 and KRS 218A.992 , because his right to due process was not denied by his parole officer’s testimony during the penalty phase of trial regarding the potential effect of parole and sentence credits on defendant’s sentence. The testimony comported with the aims of the truth-in-sentencing statute, KRS 532.055 , and was not unfair. Cox v. Commonwealth, 399 S.W.3d 431, 2013 Ky. LEXIS 228 ( Ky. 2013 ).

9.Level of Offense.

Firearm enhanced drug offense is actually charged at the higher level regardless of the procedural circumstances. Therefore, a circuit court properly acquired jurisdiction in a juvenile case because transfer order was facially valid where a district court found probable cause that appellant committed the offense of drug trafficking with a firearm enhancement; moreover, the trial court made two sets of findings, one concerning mandatory findings and one about the discretionary factors. Jackson v. Commonwealth, 363 S.W.3d 11, 2012 Ky. LEXIS 25 ( Ky. 2012 ).

Cited:

Coleman v. Commonwealth, 100 S.W.3d 745, 2002 Ky. LEXIS 247 ( Ky. 2002 ), overruled in part, Bratcher v. Commonwealth, 424 S.W.3d 411, 2014 Ky. LEXIS 85 ( Ky. 2014 )

Notes to Unpublished Decisions

Analysis

1.Constructive Possession of Firearm.

Unpublished decision: Where police found a handgun in a car in which defendant was a passenger, and defendant admitted he and the car’s driver had used the handgun for target practice earlier that same day and that he (defendant) had placed the gun in the car, the evidence was sufficient to support the jury’s verdict that defendant possessed the handgun during the commission of the offense. Kotila v. Commonwealth, 114 S.W.3d 226, 2003 Ky. LEXIS 127 ( Ky. 2003 ), cert. denied, 540 U.S. 1198, 124 S. Ct. 1456, 158 L. Ed. 2d 114, 2004 U.S. LEXIS 1334 (U.S. 2004), overruled in part, Mills v. Dep't of Corr. Offender Info. Servs., 438 S.W.3d 328, 2014 Ky. LEXIS 328 ( Ky. 2014 ).

2.Nexus Acquired.

Unpublished decision: Defendant’s constructive possession of a firearm within a vehicle at the time of arrest and the commission of the underlying offense satisfied the “nexus” requirement of KRS 218A.992 . Kotila v. Commonwealth, 114 S.W.3d 226, 2003 Ky. LEXIS 127 ( Ky. 2003 ), cert. denied, 540 U.S. 1198, 124 S. Ct. 1456, 158 L. Ed. 2d 114, 2004 U.S. LEXIS 1334 (U.S. 2004), overruled in part, Mills v. Dep't of Corr. Offender Info. Servs., 438 S.W.3d 328, 2014 Ky. LEXIS 328 ( Ky. 2014 ).

3.Guilt Phase of Trial.

Unpublished decision: In a prosecution under KRS 218A.1432(1)(b), no unfair prejudice resulted from resolving the firearm enhancement issue during the guilt phase of defendant’s trial, as the discovery of the firearm was relevant to the issue of whether defendant was using the vehicle for illegal controlled substance activity; if the evidence was admissible for substantive purposes, no additional prejudice occurred by resolving the possession issue during the guilt phase. Kotila v. Commonwealth, 114 S.W.3d 226, 2003 Ky. LEXIS 127 ( Ky. 2003 ), cert. denied, 540 U.S. 1198, 124 S. Ct. 1456, 158 L. Ed. 2d 114, 2004 U.S. LEXIS 1334 (U.S. 2004), overruled in part, Mills v. Dep't of Corr. Offender Info. Servs., 438 S.W.3d 328, 2014 Ky. LEXIS 328 ( Ky. 2014 ).

Research References and Practice Aids

Kentucky Law Journal.

Article: Drug Law Reform-Retreating from an Incarceration Addiction, 98 Ky. L.J. 201 (2009/2010).

Northern Kentucky Law Review.

Tapp and Tincher, Of Innocents and Offenders: A Survey of Children’s Law in Kentucky, 30 N. Ky. L. Rev. 131 (2003).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part. 4 Miscellaneous KRS 218A Offenses, §§ 9.35A — 9.35C.

218A.993. Penalty for chapter provisions without a specific penalty.

Any person who violates any provision of this chapter for which a specific penalty is not otherwise provided shall be guilty of a Class B misdemeanor.

History. Enact. Acts 1994, ch. 412, § 1, effective July 15, 1994.

218A.994. Applicability of penalties in KRS Chapter 506 to this chapter.

Unless this chapter provides a specific penalty for the same act, the provisions of KRS Chapter 506 shall apply to offenses under this chapter.

History. Enact. Acts 1998, ch. 301, § 21, effective July 15, 1998.

CHAPTER 219 Hotel, Food Service, and Mobile Home and Recreational Vehicle Park Regulations

Hotels and Food Service Establishments

219.010. Definitions for KRS 219.010 to 219.110. [Repealed.]

Compiler’s Notes.

This section (2059: amend. Acts 1970, ch. 233, § 1) was repealed by Acts 1972, ch. 337, § 10.

219.011. Definitions for KRS 219.011 to 219.081.

As used in KRS 219.011 to 219.081 :

  1. “Secretary” means the secretary of the Cabinet for Health and Family Services;
  2. “Cabinet” means the Cabinet for Health and Family Services or its designee;
  3. “Hotel” means every building or structure kept, used, maintained, advertised, or held out to the public as a place where sleeping accommodations are furnished to the public, and includes motels, tourist homes, and similar establishments, but excludes boarding houses and rooming houses;
  4. “Person” means an individual, or a firm, partnership, company, corporation, trustee, association, or any public or private entity owning or operating a hotel;
  5. “Bed and breakfast establishment” means a one (1) family dwelling unit, but which also has guest rooms or suites used, rented, or hired out for occupancy or which are occupied for sleeping purposes by persons not members of the single-family unit. The innkeeper shall reside on the premises or property adjacent to the premises during periods of occupancy. The building shall be known as either a bed and breakfast home or a bed and breakfast inn;
  6. “Bed and breakfast home” means a bed and breakfast establishment:
    1. Having five (5) or fewer guest rooms or suites for occupancy;
    2. In which breakfast and other meals may be served to guests; and
    3. Whose innkeeper resides on the premises or property adjacent to the premises during periods of occupancy;
  7. “Bed and breakfast inn” means a private inn or other unique residential facility:
    1. Having six (6) or more guest rooms or suites for occupancy;
    2. In which breakfast and other meals may be served to the guests; and
    3. Whose innkeeper resides on the premises or property adjacent to the premises during periods of occupancy; and
  8. “Farmstay” means a bed and breakfast establishment at a farm location whose focus includes agritourism as defined in KRS 247.801 .

HISTORY: Enact. Acts 1972, ch. 337, § 2; 1974, ch. 74, Art. VI, § 107(1), (10), (11), (22); 1982, ch. 247, § 14, effective July 15, 1982; 1990, ch. 458, § 9, effective July 13, 1990; 1998, ch. 426, § 493, effective July 15, 1998; 2005, ch. 99, § 553, effective June 20, 2005; 2012, ch. 57, § 1, effective July 12, 2012; 2017 ch. 185, § 3, effective June 29, 2017.

NOTES TO DECISIONS

1.Local Zoning Ordinances.

Kentucky statutes and regulatory provisions do not preclude a local zoning ordinance from allowing a hotel/motel, a bed and breakfast establishment, and a tourist home as separate conditional uses. Keogh v. Woodford County Bd. of Adjustments, 243 S.W.3d 369, 2007 Ky. App. LEXIS 371 (Ky. Ct. App. 2007).

Opinions of Attorney General.

County jailers are not required to secure a permit under KRS 219.021 in order to operate food service operations for county jail prisoners since construing the sections together it appears that the permit system was designed to place only hotels and other “commercial food establishments” under a permit and regulatory system. OAG 80-233 .

219.020. Division of hotel inspection to enforce chapter — Records. [Repealed.]

Compiler’s Notes.

This section (2059a-1) was repealed by Acts 1972, ch. 337, § 10.

219.021. Permits for hotels — Fee — Exemptions.

  1. No person shall operate a hotel without first having obtained a permit to operate from the cabinet. An application for a permit to operate any hotel shall be made to the cabinet upon forms provided by it and shall contain the information the cabinet requires.
  2. The cabinet shall promulgate administrative regulations to establish a fee not to exceed administrative costs of the program to the cabinet, that shall be paid with each application for an annual permit and permit renewal to operate a hotel.
  3. Upon receipt of an application for a permit to operate a hotel accompanied by the required fee, the cabinet shall issue a permit if the hotel meets the requirements of KRS 219.011 to 219.081 and administrative regulations promulgated by the cabinet. Hotels holding a valid and effective permit on January 1, 1973, even though not fully meeting the construction requirements of KRS 219.011 to 219.081 and the administrative regulations promulgated by the cabinet, may continue to be eligible for permit renewal if in good repair and capable of being maintained in a safe and sanitary manner and if there is no change in ownership of the establishment.
  4. Each annual permit to operate a hotel, unless previously suspended or revoked, shall expire on December 31 following its date of issuance, and be renewable annually upon application accompanied by the required fee, provided the hotel is in compliance with KRS 219.011 to 219.081 and administrative regulations promulgated by the cabinet.
  5. Each permit to operate a hotel shall be issued only for the premises and person named in the application and shall not be transferable. Permits issued shall be posted in a conspicuous place in the hotel.

History. Enact. Acts 1972, ch. 337, § 3; 1974, ch. 74, Art. VI, § 84; 1982, ch. 247, § 15, effective July 15, 1982; 1990, ch. 458, § 10, effective July 13, 1990; 2018 ch. 136, § 15, effective July 1, 2019.

Opinions of Attorney General.

County jailers are not required to secure a permit in order to operate food service operations for county jail prisoners since construing the sections together it appears that the permit system was designed to place only hotels and other “commercial food establishments” under a permit and regulatory system. OAG 80-233 .

219.025. Posting of choke-saving techniques. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 321, § 1, effective July 15, 1982) was repealed by Acts 1990, ch. 458, § 17, effective July 13, 1990. For present law see KRS 217.285 .

219.030. Hotel and restaurant certificates — Application — Fee. [Repealed.]

Compiler’s Notes.

This section (2059a-2) was repealed by Acts 1972, ch. 337, § 10.

219.031. Denial, suspension, or revocation of permit — Hearing — Cabinet and local health department employees authorized to enter premises.

  1. The cabinet or local health department concerned after notice to the applicant or holder of a permit to operate a hotel and after an opportunity for a hearing, to be conducted in accordance with KRS Chapter 13B, may deny, suspend, or revoke a permit to operate in any case where it finds that there has been a failure to comply with the requirements of KRS 219.011 to 219.081 and administrative regulations of the secretary.
  2. The cabinet may carry out the provisions of KRS 219.011 to 219.081 and administrative regulations relating to hotels through local health departments. Employees of the cabinet and local health departments may enter upon the premises of each hotel at any reasonable time for the purposes set forth in KRS 219.011 to 219.081 .

History. Enact. Acts 1972, ch. 337, § 4; 1974, ch. 74, Art. VI, § 107(22); 1990, ch. 458, § 11, effective July 13, 1990; 1996, ch. 318, § 131, effective July 15, 1996.

219.040. Certificates to be displayed. [Repealed.]

Compiler’s Notes.

This section (2059a-13) was repealed by Acts 1972, ch. 337, § 10.

219.041. Regulations — State hotel code.

  1. The secretary shall adopt regulations for the effective administration and enforcement of KRS 219.011 to 219.081 .
  2. The secretary shall adopt a state hotel code which shall include, among other things, requirements for the issuance, suspension, and revocation of permits to operate; submission of plans for construction and equipment layout; plumbing; lighting; ventilation; water supply; sewage disposal; sanitary standards for operation; and such other matters deemed necessary to insure a safe and sanitary operation of a hotel. Standards for construction, plumbing, lighting, and ventilation shall be effective only if they are approved by the Board of Housing, Buildings and Construction and are included in the Uniform State Building Code, or if they conform to the State Plumbing Code in the case of plumbing fixtures. Any review of plans for construction, plumbing, lighting, and ventilation required before construction of a hotel shall be conducted by the Department of Housing, Buildings and Construction.

History. Enact. Acts 1972, ch. 337, § 5; 1974, ch. 74, Art. VI, § 107(22); 1978, ch. 117, § 20, effective February 28, 1980; 1982, ch. 247, § 16, effective July 15, 1982; 1990, ch. 458, § 12, effective July 13, 1990; 2010, ch. 24, § 325, effective July 15, 2010.

219.050. Cancellation of certificate. [Repealed.]

Compiler’s Notes.

This section (2059a-12) was repealed by Acts 1972, ch. 337, § 10.

219.051. Enforcement of fire and safety regulations.

The state fire marshal or his duly authorized agents or representatives shall administer and enforce all state fire regulations, laws, standards of safety, and regulations adopted by the commissioner of housing, buildings and construction relating to hotels and food service establishments.

History. Enact. Acts 1972, ch. 337, § 6; 1974, ch. 74, Art. V, § 24(2); 1978, ch. 117, § 21, effective July 1, 1978; 1990, ch. 458, § 13, effective July 13, 1990; 2010, ch. 24, § 326, effective July 15, 2010.

219.060. State board of health to inspect hotels and restaurants — Enforcement of law — Abatement of unlawful conditions — Notices. [Repealed.]

Compiler’s Notes.

This section (2059a-3, 2059a-9, 2059a-11) was repealed by Acts 1972, ch. 337, § 10.

219.061. Appointment of advisory committee — Membership — Terms. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 337, § 7) was repealed by Acts 1974, ch. 74, Art. VI, § 108.

219.070. Sanitary conditions of hotels and restaurants — Sleeping rooms — Plumbing facilities. [Repealed.]

Compiler’s Notes.

This section (2059a-4) was repealed by Acts 1972, ch. 337, § 10.

219.071. Trust and agency fund — Expenditure of funds.

All fees collected by the cabinet under the provisions of KRS 219.011 to 219.081 shall be paid into the State Treasury and credited to a trust and agency fund to be used by the cabinet in defraying the costs and expenses of the cabinet in the administration of KRS 219.011 to 219.081 . Such funds may be expended for training of state and local sanitation personnel. The balance of this fund shall revert to the general funds of the Commonwealth at the end of each biennium.

History. Enact. Acts 1972, ch. 337, § 8; 1982, ch. 247, § 17, effective July 15, 1982.

219.080. Individual towels — Beds and bedding — Disinfection of rooms. [Repealed.]

Compiler’s Notes.

This section (2059a-8) was repealed by Acts 1972, ch. 337, § 10.

219.081. Short title.

KRS 219.011 to 219.081 may be cited as the Kentucky Hotel Act of 1972.

History. Enact. Acts 1972, ch. 337, § 1; 1990, ch. 458, § 14, effective July 13, 1990.

219.090. Fire extinguishing equipment in small hotels. [Repealed.]

Compiler’s Notes.

This section (2059a-5), was repealed by Acts 1972, ch. 337, § 10.

219.100. Fire extinguishing equipment and precautions in large hotels. [Repealed.]

Compiler’s Notes.

This section (2059a-6) was repealed by Acts 1972, ch. 337, § 10.

219.110. Fire escapes — Fireproof stairways. [Repealed.]

Compiler’s Notes.

This section (2059a-7) was repealed by Acts 1972, ch. 337, § 10.

219.111. Motels — Safety requirements.

All motels shall provide each door allowing access to a bedroom with a safety chain, lock, bolt or latch in addition to the regular door latch.

History. Enact. Acts 1976, ch. 196, § 1.

Trailer Parks

219.120. Definitions for KRS 219.120 to 219.250. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 207, § 1) was repealed by Acts 1972, ch. 281, § 13.

219.130. Permit required for operation of park — Application. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 207, § 2) was repealed by Acts 1972, ch. 281, § 13.

219.140. Issuance, duration, posting of permits — Exemption from fees — Permits not transferable. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 207, § 3) was repealed by Acts 1972, ch. 281, § 13.

219.150. Permit for construction or alteration of park — Information to be supplied with application — Permit fee. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 207, § 4) was repealed by Acts 1972, ch. 281, § 13.

219.160. Issuance of construction permit — Refusal of application — Resubmission — Changes in plan or facilities — Application of local building codes and zoning laws. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 207, § 5) was repealed by Acts 1972, ch. 281, § 13.

219.170. Procedure for suspension and revocation of operating permits. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 207, § 6) was repealed by Acts 1972, ch. 281, § 13.

219.180. Duties of permit holders. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 207, § 7) was repealed by Acts 1972, ch. 281, § 13.

219.190. Distribution of copies of permits. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 207, § 8) was repealed by Acts 1972, ch. 281, § 13.

219.200. Standards and requirements for parks — Rules and regulations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 207, § 9) was repealed by Acts 1972, ch. 281, § 13.

219.210. Exemption of quarters for farm labor. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 207, § 10) was repealed by Acts 1972, ch. 281, § 13.

219.220. Enforcement powers of department — Inspections — Right of entry to premises. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 207, § 11) was repealed by Acts 1972, ch. 281, § 13.

219.230. Regulations applicable to parks operated only during one season. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 207, § 12) was repealed by Acts 1972, ch. 281, § 13.

219.240. Appeals from decisions of department. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 207, § 13) was repealed by Acts 1972, ch. 281, § 13.

219.250. Disposition of permit fees. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1954, ch. 207, § 14) was repealed by Acts 1972, ch. 281, § 14.

Parks for Mobile Homes and Recreational Vehicles

219.310. Title.

KRS 219.310 to 219.410 may be cited as the Kentucky Manufactured Home, Mobile Home, and Recreational Vehicle Community Act of 2002.

History. Enact. Acts 1972, ch. 281, § 1; 2002, ch. 242, § 1, effective July 15, 2002.

219.320. Definitions for KRS 219.330 to 219.410.

As used in KRS 219.330 to 219.410 :

  1. “Secretary” means the secretary of the Cabinet for Health and Family Services;
  2. “Cabinet” means the Cabinet for Health and Family Services;
  3. “Manufactured home” means a single-family residential dwelling constructed in accordance with the National Manufactured Housing Construction in Safety Standards Act, manufactured after June 15, 1976, and designed to be used as a single-family residential dwelling with or without a permanent foundation when connected to the required utilities, and including plumbing, heating, air conditioning, and electrical systems. A manufactured home may also be used as a place of business, profession, or trade by the owner, the lessee, or the assigns of the owner or lessee and may comprise an integral unit or condominium structure. Buildings, the construction of which are not preempted by the National Manufactured Housing Construction in Safety Standards Act, are subject to the building code requirements of KRS Chapter 198B;
  4. “Mobile home” means a structure manufactured prior to June 15, 1976, that was not required to be constructed in accordance with the National Manufactured Housing Construction in Safety Standards Act, that is transportable in one (1) or more sections, that, in the traveling mode is eight (8) body feet or more in width and forty (40) body feet or more in length, or when erected on site, four hundred (400) or more square feet, and that is built on a permanent chassis and designed to be used as a dwelling on a temporary or permanent foundation, when connected with the permanent required utilities, including plumbing, heating, air conditioning, and electrical systems;
  5. “Manufactured or mobile home lot” means a parcel of land in a manufactured or mobile home community for the placement of a single manufactured or mobile home;
  6. “Manufactured or mobile home community” means a parcel of land, under single or multiple ownership and developed specifically for the purpose of leasing two (2) or more residential spaces for the location of manufactured or mobile home dwellings and which contain common facilities and utilities located on the premises as licensed by the cabinet;
  7. “Community” means a manufactured home, mobile home, and recreational vehicle community;
  8. “ANSI/NFPA” means the American National Standards Institute/National Fire Protection Association;
  9. “Underskirting” means a weather resistant material used to enclose the space from the bottom of a manufactured or mobile home to grade;
  10. “Person” means an individual, or a firm, partnership, company, corporation, trustee, association, or any public or private entity owning or operating a community;
  11. “Recreational vehicle” means any of the following:
    1. “Travel trailer” means a vehicular, portable structure built on a chassis, designed to be used as a temporary dwelling for travel, recreation, or vacation;
    2. “Pickup coach” means a structure designed to be mounted on a truck for use as a temporary dwelling for travel, recreation, or vacation;
    3. “Motorhome” means a portable, temporary dwelling to be used for travel, recreation, or vacation, constructed as an integral part of a self-propelled vehicle;
    4. “Camping trailer” means a canvas or other collapsible folding structure, mounted on wheels and designed for travel, recreation, or vacation use;
    5. “Dependent recreational vehicle” means a recreational vehicle which does not have toilet, lavatory, or bathing facilities; or
    6. “Self-contained recreational vehicle” means a recreational vehicle which can operate independent of connections to sewer, water, and electric systems. It contains a water-flushed toilet, lavatory, shower or bath, kitchen sink, all of which are connected to water storage and sewage holding tanks located within the recreational vehicle;
  12. “Recreational vehicle community” means a parcel of land available to the public in which two (2) or more recreational vehicle spaces are occupied or intended for occupancy by recreational vehicles for transient dwelling purposes and includes any service building, structure, enclosure, or other facility used as a part of the community;
  13. “Recreational vehicle space” means a parcel of land in a recreational vehicle community for the placement of a single recreational vehicle;
  14. “Sanitary station” means a facility used for receiving and disposing of wastes from recreational vehicle holding tanks;
  15. “Service building” means a building containing water closets, urinals, lavatories, and bathing facilities for use by persons using the community; and
  16. “Watering station” means a facility for filling the water storage tanks of recreational vehicles with potable water from an approved water system.

History. Enact. Acts 1972, ch. 281, § 2; 1974, ch. 74, Art. VI, § 107(1), (11), (22); 1998, ch. 426, § 494, effective July 15, 1998; 2002, ch. 242, § 2, effective July 15, 2002; 2005, ch. 99, § 554, effective June 20, 2005.

NOTES TO DECISIONS

1.Mobile Home Park.

Mobile home lots are “available to the public,” within the meaning of KRS 219.320(5), and therefore subject to regulation under this chapter, if two (2) or more lots are available for lease to non-family members. Commonwealth v. Frodge, 962 S.W.2d 864, 1998 Ky. LEXIS 30 ( Ky. 1998 ).

Cited:

Weaver v. Anderson County Fiscal Court, 648 F. Supp. 1575, 1986 U.S. Dist. LEXIS 16341 (E.D. Ky. 1986 ), rev’d, 838 F.2d 1216, 1988 U.S. App. LEXIS 1768 (6th Cir. Ky. 1988 ).

Opinions of Attorney General.

Whether lots are on one deed or several deeds is not material to the question of what constitutes a mobile home park, but the decisive factor is whether a contiguous group of mobile home lots is being controlled by a person as a unified mobile home community as far as spacing, utility service and sanitation are concerned. OAG 73-1 .

219.330. Permit for operation of community — Application.

No person shall operate a community without having first obtained a permit as provided for in KRS 219.310 to 219.410 . An application for a permit to operate a community shall be made to the cabinet upon forms provided by it and shall contain such information as the cabinet reasonably requires, which may include affirmative evidence of ability to comply with such reasonable standards and regulations as may be prescribed.

History. Enact. Acts 1972, ch. 281, § 3; 2002, ch. 242, § 3, effective July 15, 2002.

219.340. Issuance, duration, posting of permits — Fees — Permits not transferable.

  1. The cabinet shall promulgate administrative regulations to establish a schedule of fees not to exceed administrative costs of the program to the cabinet, that shall be paid for a permit to operate a manufactured or mobile home community. Upon receipt of an application for a permit to operate, accompanied by a permit fee, the cabinet shall issue a permit, provided the community meets the standards and requirements of KRS 219.310 to 219.410 and the administrative regulations promulgated by the cabinet.
  2. Each permit to operate, unless sooner suspended or revoked, shall expire on June 30 following its issuance, and be renewable annually, upon application and payment of a renewal fee established by the cabinet, provided the community is maintained and operated in compliance with KRS 219.310 to 219.410 and the administrative regulations promulgated by the cabinet.
  3. Each permit to operate shall be issued only for the person and premises, including number of spaces, named in the application and shall not be transferable.
  4. The person holding an operating permit shall post it conspicuously within the community or have it readily available for examination upon request by agents of the cabinet or prospective community occupants.

History. Enact. Acts 1972, ch. 281, § 4; 1974, ch. 74, Art. VI, § 107(22); 1982, ch. 247, § 18, effective July 15, 1982; 2002, ch. 242, § 4, effective July 15, 2002; 2006, ch. 136, § 1, effective July 12, 2006; 2018 ch. 136, § 16, effective July 1, 2019.

219.350. Permit for construction of community.

No community shall be constructed or altered without a permit as provided in KRS 219.310 to 219.410 . An application for a permit to construct or alter a community shall be made to the cabinet upon forms provided by it. The application shall include plans for construction or alteration of the community and shall contain such information in regard to the proposed community as the cabinet may reasonably require, which may include affirmative evidence of ability to comply with requirements of KRS 219.310 to 219.410 and regulations adopted by the secretary. All plans for the construction, installation, or alteration of buildings shall be forwarded by the cabinet to the Department of Housing, Buildings and Construction. Only the Department of Housing, Buildings and Construction shall review such plans for conformance with the Uniform State Building Code. The Department of Housing, Buildings and Construction shall expedite the review of such plans and return them to the Cabinet for Health and Family Services for completion of the application process. Each application for a permit to construct or alter a community shall be accompanied by a permit fee of forty-seven dollars ($47). The cabinet may, by administrative regulation, increase this fee by no more than five percent (5%) per year, not to exceed a maximum fee of seventy dollars ($70). Each permit to construct shall be issued only for the person and premises, including the number of spaces named in the application and shall not be transferable. Each permit to construct shall expire one (1) year from date of issuance.

History. Enact. Acts 1972, ch. 281, § 5; 1974, ch. 74, Art. VI, § 107(22); 1978, ch. 117, § 35, effective February 28, 1980; 1998, ch. 426, § 495, effective July 15, 1998; 2002, ch. 242, § 5, effective July 15, 2002; 2005, ch. 99, § 555, effective June 20, 2005; 2010, ch. 24, § 327, effective July 15, 2010.

219.360. Issuance of construction permit — Refusal of application — Resubmission — Changes in plan or facilities — Application of local building codes and zoning laws.

  1. The cabinet may issue a permit to construct upon receipt of an application for a permit to construct a new community or alter an existing community.
  2. If the application is refused, the cabinet shall give the reasons therefor in writing to the applicant; and if the objections can be corrected the applicant may resubmit his or her application for approval.
  3. Each person issued a permit to construct a new community or alter an existing community, upon completion and prior to occupancy, shall make application for a permit to operate.
  4. No change in sanitary facilities, including the water supply, sanitary sewer, waste disposal system, sanitary station, watering station, or service building, and no change in the plan of any existing community or in any proposed community for which a permit to construct has been issued, shall be made without having first obtained a construction permit therefor except that a change from a private water supply or private sewage disposal system to a public water supply or public sewage system shall not require a construction permit. The application shall be made in the manner prescribed for an original application. The change or changes shall comply with all applicable public health laws and regulations.
  5. A permit to construct, alter, or operate a community does not relieve the applicant from securing a local building permit if required, or from complying with any local zoning or other legal requirements.

History. Enact. Acts 1972, ch. 281, § 6; 2002, ch. 242, § 6, effective July 15, 2002.

219.370. Regulation of community operations.

The secretary shall promulgate administrative regulations for the effective administration and enforcement of KRS 219.310 to 219.410 , which may include but are not limited to, standards for community construction and layout, service buildings, watering stations, sanitary stations, sanitation, site planning, lot size, water supply, sewage disposal, lighting, refuse handling, insect and rodent control, inspections, hearings, issuance, suspension, and revocation of permits, and such other matters as may be necessary to insure a safe and sanitary community operation. All building construction regulations shall conform to the uniform state building code. The secretary is empowered to establish separate rules and regulations for manufactured home, mobile home, and recreational vehicle communities.

History. Enact. Acts 1972, ch. 281, § 7; 1974, ch. 74, Art. VI, § 107(22); 1978, ch. 117, § 36, effective February 28, 1980; 2002, ch. 242, § 7, effective July 15, 2002.

219.380. Powers of cabinet and local health departments — Duties of public prosecutors.

  1. The cabinet may administer the provisions of KRS 219.310 to 219.410 through the respective local health department concerned. Officials and employees of the cabinet and of local health departments are empowered to enter upon the premises of any community at any reasonable time for the purposes set forth in KRS 219.310 to 219.410 .
  2. The cabinet or local health department concerned, after notice to the applicant or holder of a permit to operate, construct, or alter a community, and after an opportunity for a hearing, is authorized to deny, suspend, or revoke a permit in any case where it finds that there has been a failure to comply with the requirements established under KRS 219.310 to 219.410 or the administrative regulations promulgated by the secretary. Hearings shall be in accordance with KRS Chapter 13B.
  3. It shall be the duty of each Commonwealth’s attorney, county attorney, city attorney, or Attorney General within their respective jurisdiction to whom the cabinet or local health department or its agents report any violation of KRS 219.310 to 219.410 , to enforce the provisions of KRS 219.310 to 219.410 .
  4. Nothing in KRS 219.310 to 219.410 shall be construed as requiring the cabinet or local health department to report for the institution of proceedings under KRS 219.310 to 219.410 , violations of KRS 219.310 to 219.410, whenever the cabinet or local health department concerned believes that the public interest will be adequately served in the circumstances by a suitable written order.
  5. Notwithstanding the existence or pursuit of any other civil or criminal remedy, the cabinet or local health department concerned may maintain, in its own name, an action to restrain or enjoin any violation of KRS 219.310 to 219.410 , irrespective of whether or not there exists an adequate remedy at law.

History. Enact. Acts 1972, ch. 281, § 8; 1974, ch. 74, Art. VI, § 107(22); 1996, ch. 318, § 132, effective July 15, 1996; 2002, ch. 242, § 8, effective July 15, 2002.

219.390. State Advisory Committee on Manufactured Home, Mobile Home, and Recreational Vehicle Communities — Membership — Terms — Compensation. [Repealed]

History. Enact. Acts 1972, ch. 281, § 9; 1974, ch. 74, Art. VI, § 107(1), (2); 1998, ch. 426, § 496, effective July 15, 1998; 2002, ch. 242, § 9, effective July 15, 2002; 2005, ch. 99, § 556, effective June 20, 2005; 2010, ch. 24, § 328, effective July 15, 2010; repealed by 2020 ch. 36, § 44, effective July 15, 2020.

219.400. Fees deposited in revolving fund to implement KRS 219.310 to 219.410.

All fees collected under the provisions of KRS 219.310 to 219.410 shall be deposited in the State Treasury in a revolving fund for the use of the cabinet in carrying out the provisions of KRS 219.310 to 219.410 and regulations adopted by the secretary. The balance of said account shall lapse to the general fund at the end of each biennium.

History. Enact. Acts 1972, ch. 281, § 10; 1974, ch. 74, Art. VI, § 107(22); 1982, ch. 247, § 19, effective July 15, 1982.

219.410. Units for personal or farm use excluded — Exclusions for parks, festivals, and publicly announced events lasting less than 30 days — Standards for installation.

  1. Nothing in KRS 219.310 to 219.410 shall be construed to include manufactured homes, mobile homes, or recreational vehicles maintained by any persons on their own premises and used exclusively to house their own farm labor.
    1. Nothing in KRS 219.310 to 219.410 shall be construed to apply to manufactured home parks, mobile home parks, or recreational vehicle parks owned and operated on a temporary or seasonal basis by a city, county, charter county, urban-county government, or consolidated local government or its agencies. (2) (a) Nothing in KRS 219.310 to 219.410 shall be construed to apply to manufactured home parks, mobile home parks, or recreational vehicle parks owned and operated on a temporary or seasonal basis by a city, county, charter county, urban-county government, or consolidated local government or its agencies.
    2. Nothing in KRS 219.310 to 219.410 shall be construed to apply to festivals lasting not more than thirty (30) days that are organized and operated by a city, county, charter county, urban-county government, or consolidated local government or its agencies.
    3. Nothing in KRS 219.310 to 219.410 shall be construed to apply to the temporary parking of recreational vehicles on public or private property, for not more than thirty (30) days, associated with festivals, fairs, sporting events, yard sales, or other publicly announced events.
  2. All installations of manufactured homes and mobile homes shall be performed by an installer certified under KRS 227.550 to 227.660 in accordance with the manufacturer’s instructions, if available, or the current ANSI or other generally accepted industry standard as adopted by the department by promulgation of an administrative regulation.

HISTORY: Enact. Acts 1972, ch. 281, § 11; 1974, ch. 74, Art. VI, § 107(22); 2002, ch. 242, § 10, effective July 15, 2002; 2006, ch. 111, § 1, effective July 12, 2006; 2012, ch. 56, § 2, effective July 12, 2012; 2017 ch. 169, § 63, effective June 29, 2017.

Legislative Research Commission Note.

(7/12/2012).The Reviser of Statutes has renumbered subsection (2)(d) of this statute as subsection (3) of this statute under the authority of KRS 7.136(1)(h).

NOTES TO DECISIONS

Cited:

Commonwealth v. Frodge, 962 S.W.2d 864, 1998 Ky. LEXIS 30 ( Ky. 1998 ).

219.990. Penalties. [Repealed.]

Compiler’s Notes.

Subsection (1) of this section (2059a-10) was repealed by Acts 1972, ch. 337, § 10, effective January 1, 1973, and subsection (2) (Enact. Acts 1954, ch. 207, § 16) was repealed by Acts 1972, ch. 281, § 13.

Penalties

219.991. Penalties.

  1. Any person who operates a hotel without a permit as provided in KRS 219.011 to 219.081 or who fails to comply with any other provisions of KRS 219.011 to 219.081 or any administrative regulation promulgated pursuant thereto shall be guilty of a misdemeanor and shall on conviction thereof be subject to a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500), or by imprisonment for not more than thirty (30) days, or both; but if the violation is committed after a conviction of the person under this section has become final, the person shall be subject to a fine of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000), or by imprisonment for not more than ninety (90) days, or both.
  2. Any person who operates, constructs, or alters a community without a permit as provided for in KRS 219.310 to 219.410 or who violates any other provision of KRS 219.310 to 219.410 or any administrative regulation promulgated by the secretary or order issued pursuant thereto shall be fined not less than twenty-five dollars ($25) nor more than one hundred dollars ($100). Each day of violation shall constitute a separate offense.

History. Enact. Acts 1972, ch. 281, § 12; 1972, ch. 337, § 9; 1974, ch. 74, Art. VI, § 107(22); 1990, ch. 458, § 15, effective July 13, 1990; 2002, ch. 242, § 11, effective July 15, 2002.

CHAPTER 220 Sanitation Districts

Sanitation Districts

220.010. Definitions for KRS 220.010 to 220.540.

As used in KRS 220.010 to 220.540 , unless the context otherwise requires:

  1. “Sanitary works,” “improvements,” “sanitary system” or “sanitary sewers,” means any works constructed by a sanitation district in accordance with the purposes of KRS 220.010 to 220.540 , as set forth in KRS 220.030 .
  2. “Person” means any person, firm, copartnership, association or corporation other than a public corporation.
  3. “Public corporation” means any county, city, school district, water district or drainage district, and any other governmental agency or political subdivision clothed with the power of levying general or special taxes or issuing bonds payable from special funds.
  4. “Land” or “property” means real property.
  5. “Board of directors,” “directors” or “board” means the governing body of a sanitation district.
  6. “Sanitation commissioner” or “commissioner” means the commissioner of sanitation districts, as provided for in KRS 220.020 .
  7. “District” means a sanitation district authorized by KRS 220.010 to 220.540 .
  8. “District area,” “within the district,” “corporate limits of the district” and similar terms mean that area established to be within the district in accordance with KRS 220.020 to 220.540 . No construction subdistrict shall be construed to be within the district area.
  9. “Construction subdistrict bonds and obligations” and like phrases mean any obligation whatsoever that has been incurred by the district because of some function or activity of a construction subdistrict. Such debts are not obligations of the district, and such debts may be paid only from moneys received by the district on account of the construction subdistrict, or from the funds, if any, in the construction subdistrict, or from the funds, if any, in the construction subdistrict reserve fund.
  10. “Construction subdistrict facilities” are all sewage facilities within a construction subdistrict, and all sewage facilities outside the district area which join together two (2) or more construction subdistricts or lead from a construction subdistrict to the district area or lead from a construction subdistrict to a disposal plant or a treatment plant outside the construction subdistrict and outside the district area, and which are not a part of a sewer system of a municipal corporation or a sewer system of a water district organized pursuant to KRS 74.010 to 74.415 .
  11. “District facilities” are all facilities of the district as provided for in KRS 220.020 to 220.540 .

History. 2062g-1: amend. Acts 1966, ch. 92, § 1; 1968, ch. 152, § 126; 2008, ch. 6, § 16, effective July 15, 2008.

NOTES TO DECISIONS

1.Constitutionality.

The sanitation district law does not deprive persons of their property without due process of law and is therefore constitutional. Somsen v. Sanitation Dist. of Jefferson County, 303 Ky. 284 , 197 S.W.2d 410, 1946 Ky. LEXIS 828 ( Ky. 1946 ).

2.Cost of Facilities.

KRS 220.010 to 220.540 contemplate that the cost of facilities of the district shall be borne by charges imposed by the district upon users. South Hills v. Sanitation Dist., 318 S.W.2d 873, 1958 Ky. LEXIS 156 ( Ky. 1958 ).

Cited:

Sanitation Dist. of Jefferson County v. Louisville & Jefferson County Metropolitan Sewer Dist., 307 Ky. 422 , 208 S.W.2d 751, 1948 Ky. LEXIS 616 ( Ky. 1948 ); Tierney v. Shamburger, 240 S.W.2d 836, 1951 Ky. LEXIS 1022 ( Ky. 1951 ); Stierle v. Sanitation Dist. of Jefferson County, 243 S.W.2d 678, 1951 Ky. LEXIS 1161 ( Ky. 1951 ); Jefferson County v. Sanitation Dist. of Jefferson County, 247 S.W.2d 365, 1952 Ky. LEXIS 688 ( Ky. 1952 ); Sanitation Dist. v. Campbell, 249 S.W.2d 767, 1952 Ky. LEXIS 860 ( Ky. 1952 ); Covington v. Sanitation Dist. of Campbell & Kenton Counties, 301 S.W.2d 885, 1957 Ky. LEXIS 488 ( Ky. 1957 ); Sanitation Dist. of Campbell & Kenton Counties v. Newport, 335 S.W.2d 908, 1960 Ky. LEXIS 291 ( Ky. 1960 ); Covington v. Sanitation Dist. No. 1, 459 S.W.2d 85, 1970 Ky. LEXIS 111 ( Ky. 1970 ).

Research References and Practice Aids

Cross-References.

Air pollution control, KRS Ch. 77.

City-county metropolitan sewer, sewer construction and sanitation districts, KRS Ch. 76.

Fish and wildlife resources, KRS Ch. 150.

Flood control and water usage, KRS Ch. 104.

Health programs, KRS Chs. 211 and 212.

Soil and water conservation, KRS Ch. 262.

Water districts, KRS Ch. 74.

Waterways and milldams, KRS Ch. 182.

220.020. Commissioner of sanitation districts — Power to establish districts.

The secretary of the Energy and Environment Cabinet shall, in addition to his other duties, act as commissioner of sanitation districts, and is vested with jurisdiction, power and authority, when the conditions set forth in KRS 220.010 to 220.520 and certified to by the county board of health are found to exist, to establish sanitation districts within any county of the Commonwealth.

History. 2062g-2: amend. Acts 1962, ch. 103; 1972 (1st Ex. Sess.), ch. 3, § 30; 1974, ch. 74, Art. III, § 13(2), (9); 2010, ch. 24, § 329, effective July 15, 2010.

220.030. Purposes for which sanitation district may be established.

Sanitation districts may be established for any of the following purposes:

  1. To prevent and correct the pollution of streams.
  2. To regulate the flow of streams for sanitary purposes.
  3. To clean and improve stream channels for sanitary purposes.
  4. To provide for the collection and disposal of sewage and other liquid wastes produced within the district; and incident to those purposes and to enable their accomplishment, to construct, with all appurtenances, laterals, trunk sewers, intercepting sewers, siphons, pumping stations, treatment and disposal works, to maintain, operate, and repair these, and do all other things necessary for the fulfillment of the purposes of KRS 220.010 to 220.520 .
  5. To provide for the management of onsite sewage disposal systems.
  6. To develop and implement plans for the collection and disposal of storm drainage.

History. 2062g-3: amend. Acts 1980, ch. 149, § 2, effective July 15, 1980; 1994, ch. 490, § 3, effective July 15, 1994; 1998, ch. 234, § 3, effective July 15, 1998.

NOTES TO DECISIONS

1.Water.

A sanitation district does not deal with water as a commodity, but merely uses water as an instrumentality for carrying out the sewage disposal function and KRS 278.010(3)(d) does not apply to it. Sanitation Dist. of Campbell & Kenton Counties v. Newport, 335 S.W.2d 908, 1960 Ky. LEXIS 291 ( Ky. 1960 ).

2.Storm Water Runoff.

Because KRS 220.110(1), 220.280(1), 220.030(6), 220.515 , and 220.510 clearly provided that the management, treatment, disposal, and financing of storm water runoff was a matter to be addressed by sanitation districts, the trial court properly granted summary judgment to a sanitation district and the cities and counties within its jurisdiction in the owners’ class action. Wessels Co., LLC v. Sanitation Dist. No. 1 of N. Ky., 238 S.W.3d 673, 2007 Ky. App. LEXIS 79 (Ky. Ct. App. 2007).

3.Sovereign Immunity.

Sanitation district was entitled to sovereign immunity on a contractor’s tort claims because its parent counties were immune and because it performed an integral state function under KRS 220.030 , 220.110(1). Coppage Constr. Co. v. Sanitation Dist. No. 1, 2013 Ky. App. Unpub. LEXIS 996 (Ky. Ct. App. Jan. 25, 2013), rev'd, 459 S.W.3d 855, 2015 Ky. LEXIS 1615 ( Ky. 2015 ).

Because a sanitation district provided integral state functions as set forth in KRS 220.110(1), 220.030 , 220.310 , 220.320 and was under the control of its parent counties as provided in KRS 220.035 , 220.140 , 220.170 , sovereign immunity barred a negligence claim brought by property owners against the district arising from sewage overflows. Sanitation Dist. No. 1 v. McCord, 2013 Ky. App. LEXIS 15 (Ky. Ct. App. Jan. 25, 2013), review denied, ordered not published, 2014 Ky. LEXIS 130 (Ky. Mar. 12, 2014).

Cited:

Sanitation Dist. v. Campbell, 249 S.W.2d 767, 1952 Ky. LEXIS 860 ( Ky. 1952 ); Sanitation Dist. No. 1 v. Weinel, 2020 Ky. App. LEXIS 111 (Ky. Ct. App. Oct. 2, 2020).

Opinions of Attorney General.

A sanitation district treatment plant located within a city within the district is not subject to the ad valorem real estate taxes of the city. OAG 60-1128 .

220.035. Powers of fiscal court to be stated in ordinance — Powers of county judges/executive in districts governed by KRS 220.135 — Service charges, rates, and user fees in districts with more than 10,000 customer accounts governed by KRS 220.542.

  1. A fiscal court may:
    1. Review and approve, amend, or disapprove proposed district land acquisitions;
    2. Review and approve, amend, or disapprove proposed district construction of capital improvements;
    3. Except as provided under KRS 220.542 , review and approve, amend, or disapprove proposed service charges or user fees not more than once in a twelve (12) month period; and
    4. Review and approve, amend, or disapprove the district’s proposed budget.
  2. In order to exercise any or all the powers enumerated in subsection (1) of this section, the fiscal court shall adopt a county ordinance explicitly stating which of the powers the fiscal court intends to exercise and setting forth the procedures by which the sanitation district shall submit plans and documentation for review and approval, amendment, or disapproval. The exercise of such powers shall become effective thirty (30) days following the effective date of the ordinance. In the case of districts lying in two (2) or more counties, no fiscal court shall exercise the powers enumerated in subsection (1) of this section until each fiscal court has adopted conforming ordinances stating the powers to be exercised.
  3. In the case of districts lying in two (2) or more counties, the votes of the respective fiscal courts shall be weighted in the same manner as appointments to the district board are apportioned pursuant to KRS 220.140 .
  4. In the case of districts governed by the provisions of KRS 220.135 , the county judges/executive shall exercise the powers listed in subsection (1) of this section. They shall meet jointly at least once each fiscal year to exercise these powers. Their votes shall be equally weighted. Service charges, rates, and user fees for districts with more than ten thousand (10,000) customer accounts shall be approved as set out in KRS 220.542 .
  5. Service charges, rates, and user fees in districts not governed by the provisions of KRS 220.135 or having more than ten thousand (10,000) customer accounts shall be approved as set out in KRS 220.542 .

History. Enact. Acts 1984, ch. 203, § 1, effective July 13, 1984; 1994, ch. 490, § 2, effective July 15, 1994; 1998, ch. 234, § 4, effective July 15, 1998; 2011, ch. 98, § 18, effective June 8, 2011.

NOTES TO DECISIONS

1.Constitutionality.

This section is constitutionally sound and does not purport to take authority away from the Natural Resources and Environmental Protection (now Energy and Environment) Cabinet, but merely allows fiscal courts to have concurrent oversight authority. Sanitation Dist. No. 1 v. Shelby County, 964 S.W.2d 434, 1998 Ky. App. LEXIS 23 (Ky. Ct. App. 1998).

The Sanitation District’s powers to review, approve, amend or disapprove its acquisition of realty, capital improvements and its budget result in a significant shift in authority between the Sanitation District and the Fiscal Court, but there is nothing in the state constitution that specifically safeguards the latter’s powers. Sanitation Dist. No. 1 v. Shelby County, 964 S.W.2d 434, 1998 Ky. App. LEXIS 23 (Ky. Ct. App. 1998).

2.Not Arbitrary.

A committee of judges designated to represent a sanitation district under KRS 220.035 did not act arbitrarily in violation of Ky. Const. § 2 when it approved the acquisition of land and raised a taxpayer’s rates because the committee heard extensive arguments from several interested parties prior to approving the acquisition of the property; thus, the evidence was overwhelming that the committee’s decision was based on a professional, impartial, and comprehensive analysis. Garriga v. Sanitation Dist. No. 1, 2003 Ky. App. LEXIS 305 (Ky. Ct. App. Dec. 5, 2003).

3.Standing.

By enacting KRS 220.035 , governing approval of condemnation proceedings, the Legislature sought to add an additional safeguard to the condemnation process so as to ensure that the rights of property owners are protected from arbitrary action; thus, property owners lacked standing to challenge the constitutionality of KRS 220.035 because although the property owners suffered a distinct and palpable injury as a result of a sanitation district’s decision to condemn their property, they failed to establish that the statute had any causal relationship to their injury. Garriga v. Sanitation Dist. No. 1, 2003 Ky. App. LEXIS 305 (Ky. Ct. App. Dec. 5, 2003).

Taxpayer’s complaint for declaratory judgment, KRS 418.045 , and injunctive relief was properly dismissed for failure to state a claim upon which relief could be granted because the taxpayer lacked standing to challenge the constitutionality of KRS 220.035 , which authorized the sanitation district to conduct condemnation proceedings, where she failed to demonstrate that she had been adversely affected by the statute. Garriga v. Sanitation Dist. No. 1, 2003 Ky. App. LEXIS 305 (Ky. Ct. App. Dec. 5, 2003).

4.Sovereign Immunity.

Because a sanitation district provided integral state functions as set forth in KRS 220.110(1), 220.030 , 220.310 , 220.320 and was under the control of its parent counties as provided in KRS 220.035 , 220.140 , 220.170 , sovereign immunity barred a negligence claim brought by property owners against the district arising from sewage overflows. Sanitation Dist. No. 1 v. McCord, 2013 Ky. App. LEXIS 15 (Ky. Ct. App. Jan. 25, 2013), review denied, ordered not published, 2014 Ky. LEXIS 130 (Ky. Mar. 12, 2014).

Opinions of Attorney General.

As the powers of a fiscal court in connection with a sanitation district have been expressly listed in this section, and as such powers do not include the power to restrict the taxing authority of a sanitation district board, a fiscal court does not have such authority. OAG 94-46 .

220.040. Petition necessary to establish district — Requisites.

  1. Before the commissioner of sanitation districts shall establish a district, a petition, approved as to propriety and necessity by the county board of health of each county affected, shall be filed with the commissioner, containing valid signatures of sixty percent (60%) of those in possession claiming as freeholders within the limits of the territory proposed to be organized into a district.
  2. In determining when sixty percent (60%) of the landowners have signed the petition, the commissioner shall consult with the landowners whose names appear upon the county tax duplicate, which for all purposes of KRS 220.010 to 220.520 shall be prima facie evidence of such ownership. The commissioner shall further require evidence to determine the fact that all signatures on the petition are genuine, and a notification by ordinary mail sent to the respective addresses shown on the petition shall be deemed satisfactory by the commissioner if the petitioner so notified fails to report in writing within ten (10) days that he did not sign the petition. When authorized by ordinance, such a petition may be signed by the governing body of any municipality lying wholly or partly within the proposed district. When so signed by such governing body a petition on the part of the governing body shall fill all requirements of representation upon the petition of the freeholders of the municipality as they appear upon the assessment roll of the municipality, and individuals within the municipality shall not sign the petition. Such a petition may also be filed by any municipality interested in some degree in the improvement, upon proper action by its governing body, except as provided in KRS 220.520 .

History. 2062g-4: amend. Acts 1960, ch. 195, § 1; 1982, ch. 217, § 5, effective July 15, 1982.

Opinions of Attorney General.

In order to be eligible to vote on the question of the dissolution pursuant to KRS 65.170 of a sanitation district located in a particular county, the voter must be a person: (1) who is a registered voter in that county; and in a precinct located within the sanitation district, and (2) who, as required by subsection (1) of this section is in possession of land claiming as a freeholder (i.e., a landowner) within the limits of the sanitation district located in the county which is sought to be dissolved. OAG 81-354 .

220.050. Contents of petition.

The petition shall contain:

  1. The proposed name of the district, which shall be “Sanitation District No.  . . . . . . . . . .  of  . . . . . . . . . . . . . . . . . . .  County (or Counties), Kentucky.”
  2. The necessity for the proposed work and that it will be conducive to the public health, safety, comfort, convenience or welfare.
  3. A general description of the purpose of the contemplated improvement, and of the territory to be included in the proposed district. The description need not be given by metes and bounds or by legal subdivision but it shall be sufficient if a reasonably accurate description is given of the territory to be organized as a district. The territory may include one (1) or more political subdivisions or portions thereof, and, except as otherwise provided by KRS 220.010 to 220.530 , shall not be included wholly within the limits of a single municipality. The territory need not be contiguous if it is so situated that the public health, safety, comfort, convenience and welfare will be promoted by its organization as a single district.
  4. A prayer for the organization of the district.

History. 2062g-5.

220.060. Defects in petition may be corrected — Joint petitions.

No petition with the requisite number of valid signatures shall be declared void on account of alleged defects, but the commissioner may at any time permit the petition to be amended in form and substance to conform to the facts, by correcting any errors in the description of the territory or in any other particular, but shall not add or deduct area except as provided in KRS 220.080 . Several similar petitions or duplicate copies of the same petition for the organization of the same district may be filed and shall together be regarded as one (1) petition. All such petitions filed shall be considered the same as though filed with the first petition placed on file.

History. 2062g-6.

220.070. Security for costs of establishment proceedings.

At the time of filing the petition, or at any time subsequent thereto and prior to the time of the giving of notice by the commissioner, as hereinafter provided, the petitioners shall either file bond with the commissioner with security approved by him, or deposit cash or securities with him in an amount sufficient to pay the costs in the proceedings thereafter involved. If the commissioner at any time during the proceedings is not satisfied that the bond or deposit is sufficient or that the surety on the bond is safe, he may require the execution of an additional bond or the giving of additional surety or an additional deposit within a time to be fixed not less than ten (10) days thereafter, and upon the failure of the petitioners to comply the commissioner may refuse to proceed further and may refuse to organize the district.

History. 2062g-7.

220.080. Boundary of proposed district — Investigation — Change — Inclusion of city property restricted.

  1. When the petition is filed with the commissioner, he shall investigate at once the boundary of the district proposed to be organized, and may, at the cost of the petitioners, cause to be made surveys necessary to establish with reasonable accuracy a boundary that will, in his judgment, accomplish the purpose sought by the creation of the district in a practicable and workable manner, and that will be sufficiently comprehensive to avoid confusion or interference with any other similar district then existing or that may be created. The boundary established by the commissioner need not follow the boundary proposed by the petitioners, but if the boundary established by the commissioner results in a material change from that proposed in the original petition the petitioners shall secure, in case of a larger or smaller area, the signatures of sixty percent (60%) of the freeholders or owners in the area as established by the commissioner.
  2. None of the provisions of KRS 220.010 to 220.520 shall be applicable within the corporate boundary of any city of the first class, nor shall they be binding upon such city or any part thereof, or any land or property within the boundary of such city. The governing body of any city of the first class shall determine by ordinance whether city property lying outside the corporate boundary shall be included in any sanitation district, and whether the city shall bind itself to pay the charges for the services of the district furnished to such land or property.
  3. Should it be found desirable to include in a sanitation district all or a portion of a city with a population equal to or greater than eight thousand (8,000) but less than one hundred thousand (100,000) based upon the most recent federal decennial census, the governing body of such city shall determine by ordinance whether the city or portion thereof shall be included in the district, or whether the city shall bind itself to pay the charges for the services of the district furnished in such area.

History. 2062g-8: amend. Acts 1960, ch. 195, § 2; 2014, ch. 92, § 277, effective January 1, 2015.

NOTES TO DECISIONS

1.Annexation.

The annexed area becomes part of the city for sewer service purposes and part also of the metropolitan sewer district, subject only to the necessities of continued operation by the sanitation district of its system within the area to the extent and for the period necessary to retire its bonds chargeable against the property in the annexed area. Louisville & Jefferson County Metropolitan Sewer Dist. v. Sanitation Dist., 353 S.W.2d 196, 1961 Ky. LEXIS 1 ( Ky. 1961 ).

2.Charges by Fifth or Sixth-Class City.

There is no authority in this section and KRS 220.536 for a city of the fifth or sixth class to charge the people of the city for facilities which will belong to the sanitation district and for the cost of which the district is authorized to impose charges. South Hills v. Sanitation Dist., 318 S.W.2d 873, 1958 Ky. LEXIS 156 ( Ky. 1958 ).

220.090. Publication of application to create district.

When sixty percent (60%) of those qualified within the boundary fixed by the commissioner are found to have petitioned for the establishment of a sanitation district, and the commissioner has established the boundaries thereof, the commissioner shall give notice of the application for the creation of the district, by publication pursuant to KRS Chapter 424.

History. 2062g-9: amend. Acts 1960, ch. 195, § 3; 1966, ch. 239, § 167.

220.100. Objection to establishment of district — How made — Trial — Appeal.

Any owner of real property in the proposed district who has not signed the original petition for the creation of the district and who wishes to object to the organization of the district shall, within sixty (60) days after the giving of notice by the commissioner, file his petition in the Circuit Court of the county in which the larger part of the proposed district is located, naming the commissioner defendant and setting out in the petition his objections to the organization of the district. The commissioner shall be represented in the Circuit Court by the county attorney and in the Court of Appeals by the Attorney General, and he also may require his defense to be made by the petitioners or some of them. The issues may be made up and the case may be docketed for hearing as in an action for a declaration of rights. The burden of proof shall be upon the plaintiff to show cause why the district should not be organized. If the court renders judgment against the commissioner, judgment shall point out the changes required for the establishment of a district, which, if met by the commissioner, shall authorize the creation of the district. If the changes are not met by the commissioner, the proposed district shall not be organized unless new proceedings are instituted for the creation of a district, but such new proceedings shall not be instituted for a period of six (6) months after the date of judgment. If the court gives judgment against the plaintiff, the commissioner shall organize the district. An appeal shall suspend the judgment until the case has been passed upon by the Court of Appeals and final judgment rendered. Either the plaintiff or the commissioner may appeal from the judgment of the Circuit Court to the Court of Appeals, but the commissioner shall not be required to make any appeal bond. Except as otherwise provided in this section, the pleading and practice shall be the same as in other suits in equity.

History. 2062g-10: amend. Acts 1952, ch. 84, § 57; 1976, ch. 62, § 104; 1976 (Ex. Sess.), ch. 14, § 210, effective January 2, 1978.

220.110. Declaration and certification of organization — Status and powers of district — Corporate name.

  1. If no suit is filed against the commissioner under KRS 220.100 , or if suit is filed and final judgment in the Circuit Court or an appeal is in favor of the commissioner, the commissioner shall forthwith declare the district organized into a sanitation district and give it a corporate name, as provided in KRS 220.050 , by which in all proceedings it shall thereafter be known. The commissioner shall certify his act to the county clerk of each county in which any part of the district is located, and to the Secretary of State, each of whom shall record the certificate as articles of incorporation. The commissioner shall also certify his act to the county judge/executive of each county in which any part of the district is located. The district shall then be a political subdivision, except as otherwise specifically provided in KRS 220.530 , with power to sue and be sued, contract and be contracted with, incur liabilities and obligations, exercise the right of eminent domain, assess, tax, and contract for rentals as herein provided, issue bonds, and do and perform all acts herein expressly authorized and all acts necessary and proper for the carrying out of the purpose for which the district was created, and for executing the powers with which it is invested.
  2. The board of directors of the district may amend the corporate name of the district, but the amendment shall not be effective until certified by the board to the commissioner, the county clerk and county judge/executive of each county in which any part of the district is located, and to the Secretary of State.

History. 2062g-11: amend. Acts 1978, ch. 384, § 356, effective June 17, 1978; 1988, ch. 330, § 5, effective July 15, 1988; 1998, ch. 37, § 2, effective July 15, 1998.

NOTES TO DECISIONS

1.Autonomous Political Subdivision.

Sanitation district did not lack authority to initiate condemnation proceedings on its own behalf under KRS 416.560(1) because it was not a department, instrumentality or agency of local government, but rather, an autonomous political subdivision under KRS 220.110(1) with full authority within its boundaries as to the construction and operation of sanitation improvements. Garriga v. Sanitation Dist. No. 1, 2003 Ky. App. LEXIS 305 (Ky. Ct. App. Dec. 5, 2003).

2.Storm Water Runoff.

Because KRS 220.110(1), 220.280(1), 220.030(6), 220.515 , and 220.510 clearly provided that the management, treatment, disposal, and financing of storm water runoff was a matter to be addressed by sanitation districts, the trial court properly granted summary judgment to a sanitation district and the cities and counties within its jurisdiction in the owners’ class action. Wessels Co., LLC v. Sanitation Dist. No. 1 of N. Ky., 238 S.W.3d 673, 2007 Ky. App. LEXIS 79 (Ky. Ct. App. 2007).

3.Sovereign Immunity.

Sanitation district was entitled to sovereign immunity on a contractor’s tort claims because its parent counties were immune and because it performed an integral state function under KRS 220.030 , 220.110(1). Coppage Constr. Co. v. Sanitation Dist. No. 1, 2013 Ky. App. Unpub. LEXIS 996 (Ky. Ct. App. Jan. 25, 2013), rev'd, 459 S.W.3d 855, 2015 Ky. LEXIS 1615 ( Ky. 2015 ).

Because a sanitation district provided integral state functions as set forth in KRS 220.110(1), 220.030 , 220.310 , 220.320 and was under the control of its parent counties as provided in KRS 220.035 , 220.140 , 220.170 , sovereign immunity barred a negligence claim brought by property owners against the district arising from sewage overflows. Sanitation Dist. No. 1 v. McCord, 2013 Ky. App. LEXIS 15 (Ky. Ct. App. Jan. 25, 2013), review denied, ordered not published, 2014 Ky. LEXIS 130 (Ky. Mar. 12, 2014).

Cited:

South Hills v. Sanitation Dist., 318 S.W.2d 873, 1958 Ky. LEXIS 156 ( Ky. 1958 ).

220.115. Fiscal court procedure for alteration or dissolution of district.

  1. Following a public hearing as provided in subsection (2) of this section, the fiscal court may alter the boundaries of a sanitation district by reducing its area or may dissolve a sanitation district if that sanitation district has for a period of two (2) consecutive years failed to provide the services for which it was established, or if all or a portion of its services can be or have been provided by some other entity. If the sanitation district is located in more than one (1) county, the fiscal court of each county containing a portion of the sanitation district shall vote to dissolve the sanitation district before the dissolution may take effect.
  2. The fiscal court shall schedule a public hearing on the issue of alteration or dissolution and advertise the hearing as provided in KRS 424.130 .
  3. At the hearing, the fiscal court shall consider testimony offered at the hearing and any other relevant information including, but not limited to, the following:
    1. Present and projected need for the service by the sanitation district;
    2. Population density of the sanitation district;
    3. Existence of alternate providers of services;
    4. Revenue base of the sanitation district, including but not limited to, assessed valuation, bonding capacity, and user fees; and
    5. Consequences of alteration of the sanitation district’s boundaries on the effectiveness and efficiency of the sanitation district.
    1. If the fiscal court determines to dissolve a sanitation district, it shall determine a method to satisfy any legal obligations of the sanitation district that might be affected. Upon satisfaction of its legal obligations, the sanitation district shall be legally dissolved. Any special ad valorem tax imposed by the sanitation district shall be removed from the tax rolls by the county clerk, and any assets of the sanitation district shall be assumed by the county or otherwise transferred by contract to another entity for the purpose of providing service within the area of the sanitation district before dissolution. (4) (a) If the fiscal court determines to dissolve a sanitation district, it shall determine a method to satisfy any legal obligations of the sanitation district that might be affected. Upon satisfaction of its legal obligations, the sanitation district shall be legally dissolved. Any special ad valorem tax imposed by the sanitation district shall be removed from the tax rolls by the county clerk, and any assets of the sanitation district shall be assumed by the county or otherwise transferred by contract to another entity for the purpose of providing service within the area of the sanitation district before dissolution.
    2. If the fiscal court determines to alter the boundaries of the sanitation district, it shall draw the new boundaries of the sanitation district and determine the proportional amount of existing legal obligations of the area that is to be excluded from the sanitation district. Upon satisfaction of the obligations, the new boundaries of the sanitation district shall be legally effective and the affected taxpayers shall be removed from the tax rolls of the sanitation district.
  4. The dissolution procedure described in this section shall provide a means of dissolution of a sanitation district in addition to the dissolution procedure contained in KRS 65.166 .

History. Enact. Acts 1998, ch. 37, § 1, effective July 15, 1998.

220.120. Conclusiveness of certificate.

The certificate establishing the district shall be deemed final and binding upon the real property in the district, and shall finally and conclusively establish the regular organization of the district against all persons except the state upon suit commenced by the Attorney General. The organization of the district shall not be directly or collaterally questioned in any action except as herein expressly authorized.

History. 2062g-14.

220.130. Office and records of district.

The commissioner shall designate in the certificate the place where the office of the district shall be located, which shall be within the corporate limits of the district if practicable. The place may be changed by the board of directors of the district from time to time, by the certification of the change to the county judge/executive and the notation thereof on the records of the court. The records of the district shall have “Sanitation District Records” printed, stamped or written thereon. They shall be kept at the office and shall be open to inspection as are the records of the fiscal court.

History. 2062g-1, 2062g-12: amend. Acts 1978, ch. 384, § 357, effective June 17, 1978.

220.135. Boundaries of multicounty districts — Assumption by district of city systems effective July 1, 1995 — City’s option not to be assumed — Dissolution of municipal subdistricts — Effects of assumptions and dissolutions — Uniformity of district rates.

  1. Notwithstanding the provisions of KRS 220.080 , the jurisdictional boundaries of a sanitation district organized or operating under KRS Chapter 220 shall be coextensive with the jurisdictional boundaries of the counties it was organized to serve if the district was organized to serve two (2) or more counties, and no other district has been organized to serve the counties. All cities of the home rule class located in a county which is part of a sanitation district as described in this section shall be included in the jurisdictional boundaries of the sanitation district.
    1. Effective July 1, 1995, the operational sewer and drainage system of each city located within the jurisdictional boundaries of the district, together with all assets, other than cash accounts, and liabilities of the system, as of January 1, 1994, including but not limited to, sewers, easements, manholes, pumping stations, force mains, and real property, shall become the property, personal and real, of the sanitation district. (2) (a) Effective July 1, 1995, the operational sewer and drainage system of each city located within the jurisdictional boundaries of the district, together with all assets, other than cash accounts, and liabilities of the system, as of January 1, 1994, including but not limited to, sewers, easements, manholes, pumping stations, force mains, and real property, shall become the property, personal and real, of the sanitation district.
    2. If funds in a cash account are in escrow or otherwise contractually connected to a certificate of indebtedness related to the sewer and drainage system, the funds shall become the property of the district. If funds in a cash account are derived from a sewer user fee or sanitation bill surcharge, the city may use them to reduce its obligation to the district created by subsection (5)(a) of this section, or the city may return the funds to the citizens. If the funds in a cash account were generated from a general fund source and are not in escrow or otherwise obligated, the city may retain the funds for its own purposes.
  2. Any city within the jurisdictional boundaries of the district may, before September 1, 1994, state by ordinance its intention not to become a part of the district. In this case, the provisions of subsection (2) of this section shall not apply, and the city shall retain ownership and control of and responsibility for its sewer and drainage system. The city shall be solely responsible for compliance with applicable regulations promulgated by the Energy and Environment Cabinet.
  3. Any municipal subdistrict established prior to July 15, 1994, shall be dissolved effective July 1, 1995, and the assets and liabilities of the subdistrict, as of January 1, 1994, shall become the property, personal and real, of the sanitation district, unless the city, no later than September 1, 1994, provides by ordinance that the municipal subdistrict shall revert to the city. If the city provides for the reversion of the subdistrict to the city, the assets and liabilities of the subdistrict shall become the property, personal and real, of the city. The city shall be solely responsible thereafter for compliance with applicable regulations promulgated by the Energy and Environment Cabinet.
    1. When a municipal subdistrict is dissolved pursuant to subsection (4) of this section, or a city sewer and drainage system is transferred pursuant to subsection (2) of this section, and its assets are transferred to the district, the city, or municipal subdistrict, shall pay the district fifty percent (50%) of the cost of necessary repairs to its facilities as identified through the district’s sanitary sewer inspection program. These costs shall be payable upon completion of the repairs identified by the district, and may be paid by lump sum or in installments over a period of time agreeable to the city or the municipal subdistrict and the district. (5) (a) When a municipal subdistrict is dissolved pursuant to subsection (4) of this section, or a city sewer and drainage system is transferred pursuant to subsection (2) of this section, and its assets are transferred to the district, the city, or municipal subdistrict, shall pay the district fifty percent (50%) of the cost of necessary repairs to its facilities as identified through the district’s sanitary sewer inspection program. These costs shall be payable upon completion of the repairs identified by the district, and may be paid by lump sum or in installments over a period of time agreeable to the city or the municipal subdistrict and the district.
    2. A city may continue its sewer maintenance surcharge until the accumulated principal plus interest thereon is sufficient to pay the charges levied by the district pursuant to paragraph (a) of this subsection.
    3. Any county that joins the district after July 15, 1994, may levy sewer surcharges or other fees, which shall be added to the customers’ district bill for the purpose of enabling the county to pay pre-existing obligations to the district.
    4. For a period of ten (10) years, the district may grant to each city or county a credit for each new residential customer added which shall not exceed three hundred dollars ($300) against the debt created by subsection (5)(a) of this section, or any other contractual liability pre-existing on June 30, 1994. The district may adopt a general policy establishing a credit of a different amount for each new nonresidential customer added.
    1. After July 15, 1994, no new package sewage treatment plant shall be constructed or begin operation within the jurisdictional boundaries of the district unless the district, after review of the plans for construction and operation of the plant, approves the plans. (6) (a) After July 15, 1994, no new package sewage treatment plant shall be constructed or begin operation within the jurisdictional boundaries of the district unless the district, after review of the plans for construction and operation of the plant, approves the plans.
    2. After January 1, 1995, no privately owned package sewage treatment plant shall operate within the jurisdictional boundaries of the district unless it has been issued a permit by the district or by the Energy and Environment Cabinet.
    3. On or before January 1, 2000, the district shall assume ownership of all publicly owned package sewage treatment plants within its jurisdictional boundaries, including all assets and liabilities as of January 1, 1994, and all property, real and personal.
    4. The district shall plan for, and when economically feasible, transfer the function of sewage treatment from package plants to central treatment facilities.
    1. Effective July 1, 1995, the district shall be responsible for the planning, construction, improvement, operation, and maintenance of all sewer and drainage facilities under its ownership, including combined sewer overflows, and for compliance with all applicable regulations promulgated by the Energy and Environment Cabinet. (7) (a) Effective July 1, 1995, the district shall be responsible for the planning, construction, improvement, operation, and maintenance of all sewer and drainage facilities under its ownership, including combined sewer overflows, and for compliance with all applicable regulations promulgated by the Energy and Environment Cabinet.
    2. The district shall establish uniform rates for its services throughout its jurisdiction, and district rates shall vary only on the basis of consumption.

History. Enact. Acts 1988, ch. 330, § 1, effective July 15, 1988; 1994, ch. 490, § 1, effective July 15, 1994; 2010, ch. 24, § 330, effective July 15, 2010; 2014, ch. 92, § 278, effective January 1, 2015.

220.140. Board of directors — Management of district — Qualifications — Appointment — Terms — Vacancies.

Within twenty (20) days after the commissioner certifies to the county clerk of each county in which the district is located that the district is incorporated, there shall be appointed a board of directors for the district, consisting of three (3) members, which shall control and manage the affairs of the district. If the district lies wholly within a single county, the county judge/executive of that county shall appoint all of the directors. If the district lies within two (2) counties, the county judge/executive of the county in which the greater portion of the population of the district resides may appoint two (2) directors and the county judge/executive of the other county shall appoint the third. If the district lies within more than two (2) counties, the county judges/executive of all the counties shall jointly select the directors, but each one so appointed must reside in a different county. Not less than two (2) of the directors shall be freeholders, and not more than two (2) of them shall belong to or be affiliated with the same political party. If the district is coextensive with the boundaries of two (2) or more counties, four (4) directors shall be appointed by the county judge/executive of the most populous county and two (2) shall be appointed by the county judge/executive of each remaining county. All appointments by county judges/executive shall be subject to the approval of the respective fiscal courts. In a district which is coextensive with the boundaries of two (2) or more counties, not less than two-thirds (2/3) of the directors shall be freeholders. No director shall be in any way associated or connected with the ownership, operation or control of any privately owned public utility operating within the district. The terms of office of the first board of directors shall be two (2), three (3), and four (4) years, respectively, from the date of their appointment, the length of the term of office of each member to be determined by lot at their first meeting, but the individual holding such office shall do so at the pleasure of the county judge/executive by whom he is appointed, and he may be removed without cause, with the approval of the respective fiscal court, by the county judge/executive by whom he was appointed and his unexpired term filled by another appointee of such county judge/executive. After the expiration of the respective terms of office of the first board, each director shall be appointed for a term of four (4) years, subject to the will of the county judge/executive making the appointment. Vacancies resulting from any cause other than expiration of term shall be filled only for the unexpired term. The county judge/executive of the county whose director has completed his term of office or whose office has otherwise been vacated shall fill the vacant office, except that when the district lies within more than three (3) counties, if each county is not represented, vacancies resulting from expiration of term shall be filled in rotation by the county judges/executive of those counties not represented by a director at the time a vacancy occurs. The directors shall at all times be residents of the district, and the office of any director who moves his residence outside the district shall automatically be vacated.

History. 2062g-13: amend. Acts 1956, ch. 39; 1988, ch. 330, § 2, effective July 15, 1988; 2000, ch. 150, § 1, effective July 14, 2000.

NOTES TO DECISIONS

1.Sovereign Immunity.

Because a sanitation district provided integral state functions as set forth in KRS 220.110(1), 220.030 , 220.310 , 220.320 and was under the control of its parent counties as provided in KRS 220.035 , 220.140 , 220.170 , sovereign immunity barred a negligence claim brought by property owners against the district arising from sewage overflows. Sanitation Dist. No. 1 v. McCord, 2013 Ky. App. LEXIS 15 (Ky. Ct. App. Jan. 25, 2013), review denied, ordered not published, 2014 Ky. LEXIS 130 (Ky. Mar. 12, 2014).

Opinions of Attorney General.

An individual who owns a small water system serving about one sixth (1/6) of a proposed sanitation district could not serve on the board of directors of the proposed district without violating the conflict of interest provisions of this section. OAG 73-507 .

Assuming a sanitation district lies wholly within a county, the county judge/executive shall appoint all of the directors, and such members of the board of directors hold office at the pleasure of the county judge/executive; thus the county judge/executive may remove any of them during his term. OAG 79-66 .

220.150. Oath and bond of directors.

  1. Each director, before entering upon his official duties, shall take and subscribe to an oath that he will honestly, faithfully and impartially perform the duties of his office, and that he will not be interested in any contract let for the purpose of carrying out any of the provisions of KRS 220.010 to 220.520 . The oath shall be filed with the county clerk.
  2. Each director shall give a good and sufficient bond, to be approved by the county judge/executive appointing him, for the faithful and honest performance of his duties and as security for all moneys coming into his hands or under his control. The cost of the bond shall be paid by the district.

History. 2062g-15: amend. Acts 1978, ch. 384, § 358, effective June 17, 1978.

220.160. Quorum — Action to be by resolution — Votes to be recorded.

A majority of the directors shall constitute a quorum, and concurrence of the majority in any matter within the duties of the board shall be sufficient for its determination. All actions taken by the directors shall be by resolution, and in each instance the name and vote of each director shall be recorded in the minutes.

History. 2062g-17.

NOTES TO DECISIONS

1.Actions by resolution.

Ky. Rev. Stat. Ann. § 220.160 was limited to those matters within the duties of the directors of the board, and did not require that all actions of sanitation districts be made by resolution. Keats v. Bullitt Cty. Sanitation Dist. (In re Bullitt Utils., Inc.)., 2018 Bankr. LEXIS 2961 (Bankr. W.D. Ky. Sept. 27, 2018).

220.170. Officers of board — Seal — Records — Powers — Compensation — Regulations — Resolution of complaints.

  1. The board of directors shall, upon taking oath, elect one (1) of their members as president of the board, and shall select some suitable person as secretary, who need not be a member of the board. The secretary shall serve as treasurer of the district, or the board may select a treasurer. The selection of the secretary and treasurer shall be evidenced on the minutes of the board, with their compensation. They shall serve at the pleasure of the board.
  2. The board shall adopt a seal, and shall keep in a well-bound book a record of all proceedings, minutes of meetings, certificates, contracts, bonds given by employees, and all corporate acts, which shall be open to the inspection of any owner of property in the district as well as all other interested persons.
  3. The board of directors shall be the governing body of the sanitation district and shall exercise all the powers and manage and control all the affairs and property of the district. If the board of a multicounty district governed by the provisions of KRS 220.135 has an executive committee, each county shall have a member on the committee.
  4. The board of directors may prescribe the duties and fix the compensation of all the officers of the district, subject to the limits fixed in this section. No member of the board of directors, except the president, shall receive more than thirty-six hundred dollars ($3,600) per annum. The president shall receive not more than six hundred dollars ($600) per annum in addition to his compensation as a director. The treasurer shall receive not more than nine hundred dollars ($900) and the secretary not more than three hundred dollars ($300) per annum.
  5. The board may adopt all necessary rules and regulations for the proper management and conduct of the business of the board and of the corporation, and for carrying into effect the other objects for which the district was formed. All such rules or regulations shall become effective only upon posting in at least ten (10) public places within the district.
  6. The board of directors of an established district shall develop a procedure to hear, review, and resolve customers’ complaints and grievances on any matter for which there is otherwise no requirement in this chapter for a hearing. Upon written request setting forth the basis of the complaint or grievance by the customer, mailed or delivered to the principal office of the district, the secretary of the board of directors shall schedule a hearing for the next regular board of directors’ meeting if the meeting is not held within fourteen (14) days of the date of receipt of the request, and shall give the customer at least ten (10) days’ written notice of the hearing by mail. If the receipt of the request is within fourteen (14) days of the next regularly scheduled meeting of the board of directors, the hearing shall be held at the regular meeting following the next scheduled meeting. The board of directors shall provide a written response to the customer concerning his complaint within seven (7) days after the conclusion of the hearing unless the customer waives his right to a written response or agrees to a delay.

History. 2062g-16, 2062g-18, 2062g-19, 2062g-20: amend. Acts 1956, ch. 211; 1994, ch. 307, § 1, effective July 15, 1994; 1994, ch. 490, § 6, effective July 15, 1994.

Legislative Research Commission Note.

(7/15/94). This section was amended by 1994 Ky. Acts chs. 307 and 490 which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1.Constitutionality.

Where, under statutory authority, sanitation district passed regulation requiring all abutting property to connect with public sewer system, even though they had private sewage facilities, regulation and statute were not unconstitutionally arbitrary or the taking of property without due process. Sanitation Dist. v. Campbell, 249 S.W.2d 767, 1952 Ky. LEXIS 860 ( Ky. 1952 ).

2.Construction.

The Legislature specifically authorized a sanitation district to require the use of its facilities and to adopt and enforce regulations to attain its objectives. Sanitation Dist. v. Campbell, 249 S.W.2d 767, 1952 Ky. LEXIS 860 ( Ky. 1952 ).

3.Sovereign Immunity.

Because a sanitation district provided integral state functions as set forth in KRS 220.110(1), 220.030 , 220.310 , 220.320 and was under the control of its parent counties as provided in KRS 220.035 , 220.140 , 220.170 , sovereign immunity barred a negligence claim brought by property owners against the district arising from sewage overflows. Sanitation Dist. No. 1 v. McCord, 2013 Ky. App. LEXIS 15 (Ky. Ct. App. Jan. 25, 2013), review denied, ordered not published, 2014 Ky. LEXIS 130 (Ky. Mar. 12, 2014).

Opinions of Attorney General.

This section and KRS 220.510 clearly indicate that the sanitation district can only function through its board of directors and not through a privately operated system. OAG 72-407 .

The board of directors of a sanitation district has the authority to establish by rules and regulations a schedule of meetings sufficient in number to carry on the necessary business of the sanitation district. OAG 78-84 .

Research References and Practice Aids

Cross-References.

Administrative regulations, KRS Chapter 13A.

220.180. Duties of secretary — Certified copies of records.

The secretary shall be the custodian of the seal, minutes and records of the district, and shall assist the board of directors in such particulars as the board directs in the performance of its duties. The secretary shall attest, under the seal of the district, such records as are required of him by the provisions of KRS 220.010 to 220.520 , or by any person ordering the same, and shall receive for such transcription the same compensation allowed county clerks for copying records. Any portion of the record so certified and attested shall prima facie import verity.

History. 2062g-18.

220.190. Duties of treasurer — Bond.

The treasurer shall keep an accurate account of all money received or disbursed by the district, make periodic accountings and reports thereof as directed by the board of directors, make regular semiannual accountings, assist any auditors employed by the board to check the financial records of the district, sign all checks or vouchers of the district, deposit all funds received in any bank selected by the board, and perform all other functions as chief financial officer of the district as directed by the board. No check or voucher shall be valid until countersigned by the president of the board. The treasurer shall give a good and sufficient bond to the board for the faithful and honest performance of his duties and as security for all money coming into his hands or under his control. The cost of the bond shall be paid by the district.

History. 2062g-19.

220.200. Employees of district — Supplies and equipment.

The board of directors may employ an attorney and a chief engineer for the district, who shall hold office at the pleasure of the board and who shall give such bond as is required by the board. The board may employ such other engineers, attorneys, agents and assistants as may be needed, and may prescribe the duties and fix the compensation of all the employees of the district. The board may maintain, furnish and equip an office or offices, and purchase such office supplies, equipment, apparatus, appliances, instruments and tools as are necessary, which, with all other necessary expenditures, shall be taken as a part of the cost of the improvement. The employment of the engineer, attorney and other personnel for the district shall be evidenced on the minutes of the board, with their compensation, and their term of employment shall be at the pleasure of the board.

History. 2062g-16, 2062g-20.

Opinions of Attorney General.

The board of directors of a sanitation district, within the general authority granted by this section to fix the compensation of employees of the district, may elect to apply for unemployment compensation coverage under KRS Chapter 341 and may make expenditures from funds of the district to cover employer contributions. OAG 67-386 .

220.205. Group insurance for employees may be provided.

  1. The board of directors of any sanitation district is authorized to form their employees into a group, or groups, for the purpose of obtaining the advantages of the group plan of life insurance.
  2. The premiums may be paid by the policyholder wholly from funds contributed by the insured employee, by payroll deduction or otherwise; or partly from each. No payment of premiums by the sanitation district shall constitute compensation to an insured employee for the purposes of any statute fixing or limiting the compensation of such an employee. Any premium or other expense incurred by the sanitation district shall be considered a proper cost of administration.
  3. The policy may also provide accidental death and dismemberment insurance and may contain such provisions with respect to the call or classes of employees covered, amounts of insurance for designated classes or groups of employees, terms of eligibility, continuation of insurance after retirement, and such other provisions as the board of directors may approve.
  4. The board of directors is authorized to perform all acts necessary or advisable for the purposes of contracting for and maintaining insurance under the provisions hereof.

History. Enact. Acts 1964, ch. 160, § 1.

220.210. Duties of chief engineer.

The chief engineer shall be superintendent of all the works and improvements, and shall make a full report to the board of directors each year, or more often if required. He shall make such suggestions and recommendations to the board as he deems proper, and shall advise the board concerning matters pertaining to engineering, design, construction and operation of the sanitation system and district. A copy of his reports shall also be filed with the commissioner of sanitation districts.

History. 2062g-20, 2062g-21: amend. Acts 1972 (1st Ex. Sess.), ch. 3, § 31.

Research References and Practice Aids

Cross-References.

Professional engineers, KRS Chapter 322.

220.220. Board to prepare plan for improvements.

The board of directors shall cause to be prepared a plan for the improvements for which the district was created. The plan shall include such maps, profiles, plans and other data and descriptions as are necessary to set forth properly the location and character of the work, with estimates of cost and of the property benefited, taken or damaged. In the preparation of the plan, the board may recognize the necessity of future extensions and enlargements that may result from enlargements of the area of the district, in order that the district improvements may be designed to meet properly such increased demands.

History. 2062g-22.

220.230. Other surveys may be used.

If the board of directors finds that any former survey made by any other district or in any other manner is useful for the purposes of the district, the board may take over the data secured for such survey, or such other proceedings as may be useful to it, and if required may pay the reasonable value thereof, which shall not exceed the cost of obtaining the information independently.

History. 2062g-23.

220.240. Plan must be approved by Energy and Environment Cabinet.

Upon the completion of the plan the board of directors shall submit it to the Energy and Environment Cabinet for approval. If the Energy and Environment Cabinet refers the plan back for amendment, the board of directors shall prepare and submit an amended plan. If the Energy and Environment Cabinet rejects the plan, the board of directors shall proceed as provided in KRS 220.220 to prepare another plan. If the Energy and Environment Cabinet approves the plan, a copy of the action of the Energy and Environment Cabinet shall be filed with the secretary of the board of directors and by him incorporated into the records of the district.

History. 2062g-24: amend. Acts 1972 (1st Ex. Sess.), ch. 3, § 32; 1974, ch. 74, Art. III, § 13(2); 2010, ch. 24, § 331, effective July 15, 2010.

220.250. Plan to be accepted and financing fixed by resolution — Alterations.

Upon the approval of the official plan by the Natural Resources and Environmental Protection Cabinet the board of directors shall pass a resolution accepting the official plan as final and fixing all financing, taxes and rentals as authorized by KRS 220.010 to 220.520 necessary for the construction, maintenance, and operation required to place the plan in effect. After final resolutions are passed fixing the rates and rentals, no alterations of the plan shall be made except as provided herein and as approved by the Natural Resources and Environmental Protection Cabinet.

History. 2062g-25: amend. Acts 1972 (1st Ex. Sess.), ch. 3, § 33; 1974, ch. 74, Art. III, § 13(2).

220.260. Other persons not to install sanitation improvements without approval — Violation is nuisance.

After the establishment of the district and the organization of the board of directors, no person or public corporation shall install within the district any laterals, trunk lines, interceptors for the collection or discharge of sewage or other liquid waste, treatment or disposal works, until the plans therefor have been submitted to and approved by the board of directors of the district and the Energy and Environment Cabinet. Any installation contrary to the provisions of this section shall constitute a nuisance and shall be abated by injunction upon proper application by anyone aggrieved, including the district, the commissioner, or the Energy and Environment Cabinet.

History. 2062g-26: amend. Acts 1972 (1st Ex. Sess.), ch. 3, § 34; 1974, ch. 74, Art. III, § 13(2); 2010, ch. 24, § 332, effective July 15, 2010.

NOTES TO DECISIONS

Cited:

South Hills v. Sanitation Dist., 318 S.W.2d 873, 1958 Ky. LEXIS 156 ( Ky. 1958 ).

220.270. Power to carry out plan by direct labor or contract.

The board of directors may devise, prepare for, execute, maintain and operate any or all works, or improvements necessary or desirable to complete, maintain, operate and protect the works provided for by the official plan. They may secure and use persons and equipment under the supervision of the chief engineer or other agents, or they may let contracts for such works, either as a whole or in part.

History. 2062g-27: amend. Acts 1974, ch. 386, § 48.

220.280. Powers of board limited — Private connections — Type of improvements authorized — Rights as to public corporations — Annual audit.

  1. The powers of the board of directors shall be limited to the construction, maintenance and operation of such works as are necessary to carry out the purposes of the district in improvement of sanitation, as set forth in KRS 220.030 . The board shall not permit house and users’ connections at the cost of the district, and every connection shall be made under the supervision of the district. No house or users’ connection shall be made unless and until the house or user is provided with an adequate water supply.
  2. In order to effect the proper collection and disposal of sewage and other liquid wastes produced within the district, to promote the public health, comfort, convenience and welfare, and to accomplish all other purposes of the district, the board may clean out, straighten, alter, deepen or otherwise improve any stream, watercourse or body of water receiving sewage or other liquid wastes and located in or out of the district; fill up any abandoned or altered stream, watercourse or body of water located in or out of the district; construct and maintain laterals, trunk sewers, intercepting sewers, siphons, pumping stations, treatment and disposal works and improvements deemed necessary to accomplish the purposes of the district and construct, preserve, operate or maintain such works in or out of the district; construct connections to the works of the district for the delivery thereto of sewage and other liquid wastes; incorporate with the works of the district or otherwise utilize any public sewers, drains or other sewerage improvements either without modifications or with repairs, modifications or changes deemed necessary; construct any and all of the works and improvements across or through any public or private property in or out of the district; hold, encumber, control, acquire by donation, purchase or condemnation, and construct, own, lease, use and sell, any real or personal property, or any easement necessary for rights-of-way or locations for the works and improvements of the district, or for any necessary purpose, or for obtaining or storing material to be used in constructing and maintaining the works and improvements.
  3. KRS 220.010 to 220.540 shall not limit or interfere with the right of public corporations to install, maintain and operate sewerage systems as otherwise permitted by law, but the board of directors shall have full power and authority in the construction and maintenance of improvements for the purposes of the district to serve the area included within the district, and the board of directors may require the use of the improvements of the district by persons and public corporations included within the district and for which the improvements were installed.
  4. The board of directors shall have an annual audit made by a certified public accountant, copies of which shall be filed with the Secretary of State and with the county judge/executive of the county or counties in which the sanitation district is located.

History. 2062g-28.

NOTES TO DECISIONS

1.Constitutionality.

The provision of subsection (3) of this section by which the district “may require the use of the improvements of the district by persons and public corporations included within the district and for which the improvements were installed” is valid and constitutional and not arbitrary action under Ky. Const., § 2 or the taking of property without due process. Sanitation Dist. v. Campbell, 249 S.W.2d 767, 1952 Ky. LEXIS 860 ( Ky. 1952 ).

2.Private Disposal Facility.

The statutes contain no provision authorizing a metropolitan sewer district unilaterally to discontinue the operation of a privately-operated sewage-disposal facility or to force its patrons to cease using it; to the contrary, the terms under which property-owners may be brought into the system must be reached by written agreement with them or, in the case of incorporated areas, with the respective municipalities in which the property is located, and only where the area has been annexed and does not yet have an adequate system may the owners be required to connect to the district’s system as it becomes available to them. Louisville & Jefferson County Metropolitan Sewer Dist. v. Douglass Hills Sanitation Facility, 592 S.W.2d 142, 1979 Ky. LEXIS 317 ( Ky. 1979 ).

3.Storm Water Runoff.

Because KRS 220.110(1), 220.280(1), 220.030(6), 220.515 , and 220.510 clearly provided that the management, treatment, disposal, and financing of storm water runoff was a matter to be addressed by sanitation districts, the trial court properly granted summary judgment to a sanitation district and the cities and counties within its jurisdiction in the owners’ class action. Wessels Co., LLC v. Sanitation Dist. No. 1 of N. Ky., 238 S.W.3d 673, 2007 Ky. App. LEXIS 79 (Ky. Ct. App. 2007).

Cited:

South Hills v. Sanitation Dist., 318 S.W.2d 873, 1958 Ky. LEXIS 156 ( Ky. 1958 ).

220.285. Power to provide sewer service outside district.

The board of directors of a sanitation district may make contracts or other arrangements to provide for the collection, disposal and treatment of sewage and other liquid wastes produced outside of the district, as the board of directors may determine; provided, however, that this does not authorize a sanitation district to provide sewer service within a city of the first class except with permission of the board of aldermen of such city.

History. Enact. Acts 1960, ch. 71, effective June 16, 1960.

220.290. Contracts for work, material and supplies — How let.

All contracts for work, material or supplies that may exceed one thousand dollars ($1,000) shall be advertised for bids by publication pursuant to KRS Chapter 424 within the district where the work is to be done or the materials or supplies used. The contract shall be let to the lowest and best bidder who shall give bond with approved and ample surety for the faithful performance of the contract. The notice shall specify the general nature of the bid sought, the time and date bids are to be received, and where and how more specific information can be obtained. The contract shall be in writing, in duplicate, and shall be accompanied by or refer to plans and specifications for the work to be done, prepared by the chief engineer. The plans and specifications shall be made and considered a part of the contract. The contract shall be adopted by the board and signed by its president and by the contractor, and shall become a part of the records of the district.

History. 2062g-30: amend. Acts 1966, ch. 239, § 168; 1968, ch. 152, § 127.

NOTES TO DECISIONS

1.Noncompliance.

Absent an express written contract complying with KRS 220.290 , sovereign immunity barred contract claims asserted against a sanitation district by a contractor that had been hired by a developer to perform sewer line work. An alleged implied contract could not defeat sovereign immunity. Coppage Constr. Co. v. Sanitation Dist. No. 1, 2013 Ky. App. Unpub. LEXIS 996 (Ky. Ct. App. Jan. 25, 2013), rev'd, 459 S.W.3d 855, 2015 Ky. LEXIS 1615 ( Ky. 2015 ).

Trial court properly, upon remand from the Kentucky Supreme Court, granted summary judgment to a sanitation district because the district was not statutorily responsible for the contractual relationship between a developer and a contractor, which foreclosed any possibility of recovery. Coppage Constr. Co. v. Sanitation Dist. No. 1, 2019 Ky. App. LEXIS 214 (Ky. Ct. App. Dec. 13, 2019), review denied, ordered not published, 2021 Ky. LEXIS 63 (Ky. Feb. 9, 2021).

220.300. Real property may be acquired by district.

The district may acquire by gift, devise, bequest, grant or purchase solely from the funds provided under the authority of KRS 220.010 to 220.520 , such real property and interests therein as are necessary to accomplish its purpose, upon terms, privies or considerations deemed reasonable by the board of directors and agreed upon by the board and the owner. Title to all property acquired by the board shall be taken in the corporate name of the district.

History. 2062g-31.

220.302. Agreements to jointly acquire real or personal property outside of district’s boundaries.

A sanitation district may enter into agreements with another entity or entities to acquire by purchase or lease, any real or personal property, or any interest, right, easement, or privilege therein, outside of the district’s jurisdictional boundaries, in connection with the acquisition, construction, operation, repair, or maintenance of any sewage, wastewater, or storm water facilities, notwithstanding any other provision of the Kentucky Revised Statutes restricting, qualifying, or limiting their authority to do so, except as set forth in KRS Chapter 278.

HISTORY: 2018 ch. 196, § 10, effective July 14, 2018.

220.310. Condemnation.

The board of directors may, by resolution reciting the need, order the condemnation for the district of any real property or interest therein that may, in the opinion of the board, be necessary for the proposed construction of any structure authorized by KRS 220.010 to 220.520 , and any property taken for a public use may again be taken by the district if necessary. Proceedings for condemnation shall be conducted in the manner prescribed in the Eminent Domain Act of Kentucky. No payment or award in any condemnation proceedings or for the cost or expense of such proceedings shall be made except from the funds provided under the authority of KRS 220.010 to 220.520 .

History. 2062g-32: amend. Acts 1976, ch. 140, § 93.

NOTES TO DECISIONS

1.Permit Exemptions.

Sanitation district derived its power to condemn from KRS 220.310 and, thus, was not governed by the KRS 224.73-100 requirements to obtain a permit from the Natural Resources and Environmental Protection (now Energy and Environment) Cabinet prior to initiating condemnation proceedings. Garriga v. Sanitation Dist. No. 1, 2003 Ky. App. LEXIS 305 (Ky. Ct. App. Dec. 5, 2003).

2.Sovereign Immunity.

Because a sanitation district provided integral state functions as set forth in KRS 220.110(1), 220.030 , 220.310 , 220.320 and was under the control of its parent counties as provided in KRS 220.035 , 220.140 , 220.170 , sovereign immunity barred a negligence claim brought by property owners against the district arising from sewage overflows. Sanitation Dist. No. 1 v. McCord, 2013 Ky. App. LEXIS 15 (Ky. Ct. App. Jan. 25, 2013), review denied, ordered not published, 2014 Ky. LEXIS 130 (Ky. Mar. 12, 2014).

Research References and Practice Aids

Cross-References.

Eminent Domain Act of Kentucky, KRS 416.540 et seq.

220.320. Regulations as to use and construction of works and improvements — Enforcement — Penalties and damages.

Where necessary in order to secure the best results from the construction, operation, and maintenance of the works and improvements of the district or construction subdistricts and to prevent their damage from misuse, the board of directors may make and enforce regulations pertaining to the use by persons and public corporations of the works and improvements of the district or construction subdistricts. Such regulations may prescribe the design, construction and use of sewers within the district or construction subdistricts and the manner in which connections to laterals, trunk sewers, intercepting sewers and to other works of the district or construction subdistricts shall be made, may prevent the unnecessary pollution of any watercourse or supply within the district or construction subdistricts and may prohibit the discharge into such sewers of any wastes deemed detrimental to the works and improvements of the district or construction subdistricts. Such regulations shall have no effect until approved by the Energy and Environment Cabinet. The board may recover by civil action from any person or public corporation violating such regulations, a sum not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each offense, together with costs. The directors may enforce by mandamus or otherwise all necessary and authorized regulations made by them, and may remove any improper construction or close any connections made improperly or in violation of the regulations. Any person or public corporation willfully failing to comply with the regulations shall be liable for damages caused by such failure and for the cost of renewing any construction damaged or destroyed.

History. 2062g-33: amend. Acts 1966, ch. 92, § 29; 1972 (1st Ex. Sess.), ch. 3, § 35; 1974, ch. 74, Art. III, § 13(2); 2010, ch. 24, § 333, effective July 15, 2010.

NOTES TO DECISIONS

1.Sovereign Immunity.

Because a sanitation district provided integral state functions as set forth in KRS 220.110(1), 220.030 , 220.310 , 220.320 and was under the control of its parent counties as provided in KRS 220.035 , 220.140 , 220.170 , sovereign immunity barred a negligence claim brought by property owners against the district arising from sewage overflows. Sanitation Dist. No. 1 v. McCord, 2013 Ky. App. LEXIS 15 (Ky. Ct. App. Jan. 25, 2013), review denied, ordered not published, 2014 Ky. LEXIS 130 (Ky. Mar. 12, 2014).

Cited:

Sanitation Dist. v. Campbell, 249 S.W.2d 767, 1952 Ky. LEXIS 860 ( Ky. 1952 ).

220.322. Disconnections, reconnections, and relocations of water inflows — Powers of board — Use of funds — Fees — Responsibility of property owner.

  1. Notwithstanding any other provision of this chapter, the board of directors of the district may adopt rules requiring owners of property within the district whose property is served by a connection of sewers maintained and operated by the district or whose sewers are connected to interceptor sewers maintained and operated by the district to:
    1. Disconnect storm water inflows to sanitary sewers maintained and operated by the district and not operated as a combined sewer, or to connections with these sewers;
    2. Disconnect nonstorm water inflows to storm water sewers to the extent the sewers are maintained and operated by the district and not operated as a combined sewer, or to connections with these sewers;
    3. Reconnect or relocate any disconnected inflows in compliance with rules and regulations of the district and applicable building codes, health codes, or other relevant law or administrative regulation.
  2. Any inflow required to be disconnected under a rule adopted pursuant to this chapter shall constitute a nuisance subject to injunctive relief and abatement pursuant to this chapter, or as otherwise permitted by law.
  3. The board of directors of a district may expend district funds, and other moneys from state or federal sources to the extent permitted by their terms, loans, or grants, for either of the following:
    1. The cost of disconnections, reconnections, or relocations required by rules adopted pursuant to this chapter, performed by district personnel or persons under contract with the district;
    2. Payments to the property owner or a contractor hired by the property owner pursuant to a competitive process for the cost of disconnections, reconnections, or relocations required by rules adopted pursuant to this chapter after the board of directors has approved the work to be performed and after the district has received from the property owner a statement releasing the district from all liability in connection with the disconnections, reconnections, or relocations.
  4. Except as provided in subsection (6) of this section, the board of directors of the district shall require in its rules regarding disconnections, reconnections, or relocations of sewers the reimbursement of moneys expended pursuant to subsection (3) of this section. This shall be done by the district assessing a charge to the property owner in the amount of the payment made pursuant to subsection (3) of this section for immediate payment or payments in installment with interest as determined by the board of directors not to exceed ten percent (10%). The payments may be billed as a separate item and in addition to any other fees charged to that owner for the usage of the sewers as may be required by the district. The board of directors may approve installment payments for a period of not more than fifteen (15) years. Charges not paid when due may cause the board of directors to compel payment in the manner authorized in this chapter and the rules and regulations of the district.
  5. The district may specify the maximum amount of the cost of any disconnection, reconnection, or relocation required pursuant to subsection (1) of this section that may be paid by the district for each affected parcel of property without requiring reimbursement. The board of directors shall determine the maximum amount for each qualifying parcel that does not need to be reimbursed.
  6. Disconnections, reconnections, or relocations required under this section performed by a contractor under contract with the property owner shall not be subject to competitive bidding laws of the Commonwealth of Kentucky.
  7. Property owners shall be responsible for maintaining any improvements made to private property to reconnect or relocate disconnected inflows pursuant to this section unless a recorded public easement, dated prior to January 1, 1994, exists requiring maintenance by a city, county or sanitation district.
  8. No provisions of this section shall apply to any municipal customer of the district which as of January 1, 1998, owns, operates, and maintains a separate storm sewer utility, provided the utility is adequately funded and performs at a level that is equal to or greater than the storm water facilities of the district capitalized. All these municipal customers shall only be responsible for the cost of that municipal facility.

History. Enact. Acts 1998, ch. 234, § 2, effective July 15, 1998.

220.330. Removal or adjustment of obstructions.

Any person or public corporation having buildings, structures, works, conduits, mains, pipes, tracks or other physical obstructions in, over or upon the public streets, lanes, alleys or highways that interfere with or impede the progress of construction, maintenance or repair of the works of the district shall, upon reasonable notice from the board of directors, promptly shift, adjust, accommodate or remove the obstruction to meet the exigencies occasioning such action. Upon failure of any person or public corporation to make such changes the board may do so. The reasonable cost and expense of such damage shall be met by the district.

History. 2062g-34.

220.340. Stream and rain gages — Surveys and scientific examinations.

The board of directors may establish and maintain stream gages and rain gages, and may make such surveys and examinations of rainfall, stream flow and other scientific and engineering subjects as are necessary and proper for the purpose of the district. The board may issue reports of its findings.

History. 2062g-35.

220.350. Contracts for assistance with governments, governmental agencies and others — Operations in adjoining states.

The board of directors may enter into contracts or other arrangements with the United States government or any department thereof, with persons and public corporations, with the government of this or any other state and with sewerage, drainage, conservation, conservancy or other improvement districts in this or any other state, for cooperation or assistance in constructing, maintaining, using and operating the works of the district or the waters thereof, or for making surveys and investigations or reports thereon. The board may purchase, lease or acquire land or other property in adjoining states in order to secure outlets or for other purposes of KRS 220.010 to 220.520 , and may let contracts or spend money for securing such outlets or other works in adjoining states.

History. 2062g-36.

220.360. Taxes for preliminary expense.

The board of directors, as soon as duly appointed and qualified, may levy one (1), two (2), or three (3) annual taxes, which taxes need not be in successive years, or not more than fifteen cents ($0.15) upon each one hundred dollars ($100) of assessed valuation of property within the district, to be used for the purpose of paying the expenses of organization, surveys and plans, and for other incidental expenses that may be necessary up to the time money is received from the sale of bonds. This tax shall be certified to the auditors of the various counties and by them to the respective treasurers of their counties. The tax shall be based upon the last preceding assessment for state and county purposes, its collection shall conform to the collection of taxes for counties, and the same provisions concerning the nonpayment of taxes shall apply. The tax shall be added by the county clerk to the next state and county tax bill following the levy of the tax by the board of directors, and shall be collected concurrently with the state and county taxes. Neither the property valuation administrator nor the county clerk shall be entitled to any additional compensation for the services rendered in connection with the listing of the property for taxation nor shall the sheriff receive any additional compensation for the collection of the tax.

History. 2062g-37: amend. Acts 1948, ch. 116; 1954, ch. 3, § 1; 1974, ch. 308, § 41; 1978, ch. 384, § 359, effective June 17, 1978.

NOTES TO DECISIONS

Cited:

Sanitation Dist. of Jefferson County v. Louisville, 308 Ky. 368 , 213 S.W.2d 995, 1948 Ky. LEXIS 879 ( Ky. 1948 ).

Opinions of Attorney General.

As the powers of a fiscal court in connection with a sanitation district have been expressly listed in KRS 220.035 , and as such powers do not include the power to restrict the taxing authority of a sanitation district board, a fiscal court does not have such authority. OAG 94-46 .

220.370. Borrowing money for preliminary expense.

To facilitate the preliminary work and payment of that work, the board of directors may borrow money for the district at a rate or rates or method of determining rates as they may determine, and may issue and sell, or deliver directly to its creditors, negotiable warrants signed for the district by the members of the board of directors. The board may pledge the preliminary tax authorized by KRS 220.360 , less a reasonable allowance for interest, after the tax has been levied, for the repayment of the warrants. If any warrant is presented for payment and is not paid for want of funds in the Treasury, that fact, with the date of refusal to pay, shall be indorsed on the back of the warrant, and the warrant shall then draw interest at the rate or rates or method of determining rates set out in this section until there is money on hand, derived from the tax levy, sufficient to pay the amount of the warrant with interest.

History. 2062g-38: amend. Acts 1996, ch. 274, § 53, effective July 15, 1996.

NOTES TO DECISIONS

Cited:

Sanitation Dist. of Jefferson County v. Louisville, 308 Ky. 368 , 213 S.W.2d 995, 1948 Ky. LEXIS 879 ( Ky. 1948 ).

Opinions of Attorney General.

By its express language, KRS 58.430 repealed the maximum rate found in this section and KRS 220.390 and 220.400 ; the purpose of KRS 58.430 was to permit bodies to meet prevailing interest rate competition. OAG 84-360 .

220.380. Bonds may be issued by district — Applicability of KRS 107.010 to 107.220.

  1. To defray the cost of organizing the district and the preliminary expense after organization, and for the purpose of acquiring any sanitary works authorized by KRS 220.010 to 220.520 , and any appurtenances or extensions thereto, either by purchase or construction, the district through its board of directors may borrow money and issue negotiable bonds, which shall be known as “Sanitation District Bonds” and shall be so engraved or printed on their face following the name of the issuing district. No such bonds shall be issued until authorized by resolution specifying the purpose for which the funds are to be used and the proposed undertaking, the amount of bonds to be issued and the maximum rate of interest the bonds are to bear. The resolution shall further provide that the sanitary works, appurtenances or extensions are to be acquired pursuant to the provisions of KRS 220.010 to 220.520 .
  2. The district may use the authority and procedures granted to incorporated municipalities by KRS 107.010 to 107.220 to accomplish its purposes pursuant to subsection (1) of this section. When applied to sanitation districts, terms used in KRS 107.010 to 107.220 shall be construed to mean the following: “city” means “district”; “ordinance” means “resolution”; “clerk” means “secretary” or “secretary-treasurer”; “governing body” means “board of directors”; and “mayor” means “president of the board of directors.” The provisions of this subsection shall not repeal or reduce any existing rights or duties of the district but shall constitute an additional method of financing.

History. 2062g-1, 2062g-39; 1994, ch. 490, § 4, effective July 15, 1994.

220.390. Interest rate on bonds — Time and place of payment.

Bonds authorized under the provisions of KRS 220.380 to 220.520 may be issued bearing interest determined by the procedures set forth in KRS 58.430 , and shall be executed in such manner and be payable at such time, not exceeding forty (40) years from the date thereof, and at such place or places, as the board of directors shall determine.

History. 2062g-40: amend. Acts 1968, ch. 110, § 23; 1994, ch. 490, § 5, effective July 15, 1994.

Opinions of Attorney General.

By its express language KRS 58.430 repealed the maximum rate found in this section and KRS 220.370 and 220.400 ; the purpose of KRS 58.430 was to permit public bodies to meet prevailing interest rate competition. OAG 84-360 .

220.400. Negotiability of bonds — Tax exemption — Signature — How sold — Not a debt.

Bonds issued under the provisions of KRS 220.380 to 220.520 shall be negotiable and shall not be subject to taxation. If any officer whose signature appears on the bonds or coupons ceases to be an officer before delivery of the bonds, his signature shall nevertheless be valid and sufficient for all purposes the same as if he had remained in office until delivery. The bonds shall be sold in a manner and upon terms as the board of directors deem for the best interest of the district. The bonds shall be payable solely from the revenue funds derived from the rentals from services rendered by the district to the inhabitants, as provided in KRS 220.510 , and shall not constitute an indebtedness of the district within the meaning of the Constitution. It shall be plainly stated on the face of each bond that it has been issued under the provisions of KRS 220.010 to 220.520 , and that it does not constitute an indebtedness of the district within the meaning of the Constitution.

History. 2062g-41: amend. Acts 1968, ch. 110, § 24; 1996, ch. 274, § 54, effective July 15, 1996.

NOTES TO DECISIONS

Cited:

Pulaski County v. Ben Hur Life Ass’n, 286 Ky. 119 , 149 S.W.2d 738, 1941 Ky. LEXIS 210 ( Ky. 1941 ); Sanitation Dist. of Jefferson County v. Louisville, 308 Ky. 368 , 213 S.W.2d 995, 1948 Ky. LEXIS 879 ( Ky. 1948 ).

Opinions of Attorney General.

By its express language KRS 58.430 repealed the maximum rate found in this section and KRS 220.370 and 220.390 ; the purpose of KRS 58.430 was to permit public bodies to meet prevailing interest rate competition. OAG 84-360 .

Research References and Practice Aids

Kentucky Law Journal.

Morrow, County Debt Difficulties in Kentucky, Legal Problems, 31 Ky. L.J. 242 (1943).

220.410. Use of proceeds of bonds.

All money received from any bonds issued pursuant to KRS 220.380 to 220.520 shall be applied solely for the purposes set forth in KRS 220.030 and 220.380 , except that the money may be used also to advance the payment of interest on the bonds during the first three (3) years following the date of the bonds.

History. 2062g-42.

220.420. Bondholders’ lien — Enforcement.

There shall be a statutory mortgage lien upon all property of the sanitation district in favor of the holders of the bonds and coupons, to secure payment of the bonds and coupons. The sanitary works constructed or acquired by the board of directors, together with any extensions and appurtenances thereto, shall remain subject to the lien until the payment in full of the principal and interest of the bonds. Any holder of the bonds or coupons may by proper proceedings protect and enforce the lien, and may by proper proceedings, including mandamus, compel the performance of all duties required by KRS 220.010 to 220.520 , including the making and collection of sufficient rates, the segregation of the income and revenue and the application thereof. The venue of such action shall be in the county in which the district or its largest area lies.

History. 2062g-42, 2062g-43.

NOTES TO DECISIONS

Cited:

Sanitation Dist. of Jefferson County v. Louisville, 308 Ky. 368 , 213 S.W.2d 995, 1948 Ky. LEXIS 879 ( Ky. 1948 ).

220.430. Receiver in case of default.

If there is any default in the payment of the principal or interest of any of the bonds, any court having general equity jurisdiction may appoint a receiver to administer the property of the district on behalf of the district, with power to charge and collect rates sufficient to provide for the payment of any of the bonds or obligations outstanding against the property and for the payment of the operating expenses, and to apply the income and revenue in conformity with KRS 220.010 to 220.520 and the resolution referred to in KRS 220.380 .

History. 2062g-44.

220.440. Sinking, operating and depreciation funds to be provided.

At or before the issuance of the bonds, the board of directors of the district shall, by resolution, set aside and pledge the revenue derived from services rendered by its sanitary works into a separate and special fund to be used and applied in the payment of the cost, maintenance, operation and depreciation of the works. The resolution shall definitely fix and determine the amount of revenue necessary to be set apart and applied to the payment of the principal and interest of the bonds, and the proportion of the balance of the revenue to be set aside as a proper and adequate depreciation fund. The remaining portion of the balance shall be set aside for reasonable and proper operation and maintenance of the works, except as provided in KRS 220.450 . The rates to be charged for the service from the works shall be fixed and revised from time to time, in accordance with the provisions of KRS 220.510 , so as to be sufficient to provide for the payment of interest upon all bonds and to create a sinking fund to pay the principal due, to provide for the operation and maintenance of the works, and to provide an adequate depreciation account.

History. 2062g-45.

NOTES TO DECISIONS

1.Judgment.

This section provides a method by which the county can collect such judgment as might be obtained in action against sanitation district to repair streets. Jefferson County v. Sanitation Dist. of Jefferson County, 247 S.W.2d 365, 1952 Ky. LEXIS 688 ( Ky. 1952 ).

220.450. Use of surplus in operating fund.

If a surplus is accumulated in the operation and maintenance fund equal to the cost of maintaining and operating the works of the district during the remainder of the calendar, operating or fiscal year, as may be provided by the resolution required by KRS 220.440 , and the cost of maintaining and operating the works during the succeeding like calendar, operating or fiscal year, any excess over that amount may be transferred at any time by the board of directors to the depreciation account to be used for improvements, extensions or additions to the works.

History. 2062g-46.

220.460. Use of depreciation fund — Investment.

The funds accumulated in the depreciation account shall be expended in balancing the depreciation in the works of the district or in making new construction, extensions or additions. Any such accumulations may be invested by the board of directors in the manner authorized by statute for other trust funds. The income from such investments shall be carried in the depreciation account.

History. 2062g-47.

Research References and Practice Aids

Cross-References.

Investment of trust funds, KRS Chapter 386.

220.470. Refunding bonds.

The district may issue new bonds for the purpose of providing funds for the payment of any outstanding bonds, in accordance with the procedure prescribed for the issuance of the original bonds. The refunding bonds shall be secured to the same extent and shall have the same source of payment as the bonds that are refunded.

History. 2062g-49.

220.480. Additional bonds to complete original project.

If the board of directors finds, prior to completion of the sanitary works already begun, that the bonds originally authorized will be insufficient to accomplish the purpose desired, additional bonds of like standing with the original issue may be authorized and issued subject to the same procedure.

History. 2062g-50.

220.490. Original issue may include bonds for additions and improvements.

Any sanitation district acquiring any works pursuant to the provisions of KRS 220.010 to 220.520 may, at the time of issuing the bonds for such acquisition, authorize the issuance of additional bonds for extensions and permanent improvements to be placed in escrow and to be negotiated from time to time as proceeds for that purpose are necessary. Such bonds, when so negotiated, shall have equal standing with the bonds of the same issue.

History. 2062g-51.

220.500. Subsequent issue of bonds for additions and improvements.

A sanitation district acquiring any sanitary works under the provisions of KRS 220.010 to 220.520 may provide for the extension, addition or improvement of the works by an additional issue or issues of bonds, in the same manner as for the original bonds. Such bonds shall be junior in standing to the bonds of the original issue, and shall constitute a second lien upon the revenues of the district, secured by a second statutory mortgage lien upon the property of the district, and an additional bond and interest payment fund shall be established by resolution at the time of the issuance of such second lien bonds. Any surplus of funds that would otherwise be placed in the depreciation account shall be placed in the bond and interest payment fund for the payment of the principal and interest of such second lien bonds. The rates for services charged to the users of the works of the district may be increased to provide the additional revenue necessary to amortize such second lien bonds.

History. 2062g-52.

220.510. Charges for sewer service — Collection by action — Cutting off water service if sewer service charges not paid — Contracts with large users — Administration of revenue.

  1. The board of directors shall, by resolution, determine the rates and compensation or rentals to be charged for the use of the sanitary works. The board of directors may provide for a sewer service charge to be imposed and collected, beginning at the time the plan for the improvement has been approved by the Energy and Environment Cabinet and work is begun on plans and specifications for the improvement. The rates shall at all times be reasonable, taking into account the cost of the works, the cost of operation and maintenance, and the amount necessary for the amortization of the bonds issued to finance the works. The same schedule of rates and charges shall apply to all users of the same class. The rates shall be binding upon all users of the system. The board may alter and revise the rates in its discretion. In case of failure of any user to pay for services rendered, the board may compel payment and may enjoin further use until the payment is made, or it may institute an action in any court having jurisdiction for the recovery of charges for services rendered, or the board may, by a notice in writing, signed by its chairman or any member of said board, notify the municipality, or person, firm, or corporation, which furnishes water to the user’s premises, to shut off the water service to said user’s premises, until such time as all delinquent charges, plus a reasonable charge for turning off and on the water service, against said user, are paid in full. Upon receipt of such notice in writing, the municipality, or the person, firm, or corporation, which furnishes water to the said user’s premises shall immediately shut off and discontinue the water service to the said user’s premises. Upon full payment of such account, plus a reasonable charge for turning off and on the water service, the chairman, or any member of said board, shall notify the said municipality, person, firm, or corporation, which furnishes water to said user, that the account is paid in full, including such reasonable charge for turning off and on the water service, and that the said water service can again be provided to said user’s premises. The board of directors shall promptly pay to such municipality, person, firm, or corporation, such fee or charge collected for turning off and on such water service. The board may enter into contracts with public corporations or other large users of sewer services. The board may provide by resolution any provisions and stipulations it deems necessary for the administration of the revenue of the district, and for the security of the bondholders.
  2. No moneys received on account of the existence or operation of construction subdistricts shall be used for the payment of district obligations, and no other moneys received by the district shall be used for the payment of construction subdistrict bonds or obligations. Except as provided in the preceding sentence the use of all moneys of the district received from any and all sources is hereby limited exclusively and shall be devoted solely to the payment of all obligations of the district and board created by KRS 220.010 to 220.540 , and no funds from any sources authorized by KRS 220.010 to 220.540 shall be diverted to any other purposes than those in KRS 220.010 to 220.540 set forth, except that the district shall pay from district area revenues an equitably allocable share of the cost of constructing and operating any nondistrict area facilities to which sewage from the district area is diverted in order to relieve district facilities from excessive sewage and costs described in KRS 220.561 but otherwise paid for.

History. 2062g-29, 2062g-53: amend. Acts 1948, ch. 117; 1954, ch. 3, § 2; 1966, ch. 92, § 2; 1972 (1st Ex. Sess.), ch. 3, § 36; 1974, ch. 74, Art. III, § 13(2); 2010, ch. 24, § 334, effective July 15, 2010.

NOTES TO DECISIONS

1.Constitutionality.

This section was enacted within the police power to protect the health of the citizens and does not violate the “contract clause” of the United States Constitution or the state constitution. Covington v. Sanitation Dist. of Campbell & Kenton Counties, 301 S.W.2d 885, 1957 Ky. LEXIS 488 ( Ky. 1957 ).

2.Persons Not Using Facilities.

This section does not give a sanitation district the power to collect charges from persons who are not using its facilities. Stierle v. Sanitation Dist. of Jefferson County, 243 S.W.2d 678, 1951 Ky. LEXIS 1161 ( Ky. 1951 ).

Where realty company contracted with metropolitan sewer district to provide sewer service to homes company had built which were within sanitation district, and sewer district entered into supplementary contract with sanitation district providing that sanitation district be permitted to charge regular service fees even though homeowners would also be charged sewer district’s fees, such contract was ultra vires, for KRS 76.110 and 76.170 expressly prohibit sewer district from making such contract and this section denies to sanitation district the power to make such contract since property owners were not using its sanitary works; thus sanitation district could not collect sewer service fee from property owners. Stierle v. Sanitation Dist. of Jefferson County, 243 S.W.2d 678, 1951 Ky. LEXIS 1161 ( Ky. 1951 ).

Sanitation district was authorized to impose stormwater drainage fees on an owner’s residential property because the owner’s property was a user of the sanitation district’s stormwater drainage plan, even though the owner’s property was not physically connected to a sewer system in that the owner’s property was served by a septic system, as the owner’s property clearly drained to a watershed within the sanitation district’s service area. Sanitation Dist. No. 1 v. Weinel, 2020 Ky. App. LEXIS 111 (Ky. Ct. App. Oct. 2, 2020).

3.Storm Water Runoff.

Because KRS 220.110(1), 220.280(1), 220.030(6), 220.515 , and 220.510 clearly provided that the management, treatment, disposal, and financing of storm water runoff was a matter to be addressed by sanitation districts, the trial court properly granted summary judgment to a sanitation district and the cities and counties within its jurisdiction in the owners’ class action. Wessels Co., LLC v. Sanitation Dist. No. 1 of N. Ky., 238 S.W.3d 673, 2007 Ky. App. LEXIS 79 (Ky. Ct. App. 2007).

Cited:

Sanitation Dist. of Jefferson County v. Louisville, 308 Ky. 368 , 213 S.W.2d 995, 1948 Ky. LEXIS 879 ( Ky. 1948 ).

Opinions of Attorney General.

Where nonresidents were connected to the city sewage system without their permission, they were subject to a fee for the service as long as they used it and their water service could be discontinued for failure to pay the sewage fee. OAG 66-574 .

A water district can legally shut off water service to a customer because that customer does not pay a bill owing to a separate sanitation district which is also a public corporation. OAG 68-510 .

This section and KRS 220.170 clearly indicate that the sanitation district can only function through its board of directors and not through a privately owned system. OAG 72-407 .

220.515. Charges to users for acquisition, construction, or establishment of facilities.

The district may establish a surcharge or other rate, fee, or charge to be made applicable to users in areas where facilities are to be acquired, constructed, or established, and to amortize part or all of the costs thereof, in addition to the charge authorized by KRS 220.510 . The surcharges, rates, fees, or charges shall be determined on the basis of one (1) or more of the factors stated in KRS 220.510 , and may include, at the discretion of the district, a finance charge not to exceed ten percent (10%). In carrying out any rate, fee, or charge classification, the district shall follow the procedures set forth in KRS 220.593(2).

History. Enact. Acts 1998, ch. 234, § 1, effective July 15, 1998.

NOTES TO DECISIONS

1.Storm Water Runoff.

Because KRS 220.110(1), 220.280(1), 220.030(6), 220.515 , and 220.510 clearly provided that the management, treatment, disposal, and financing of storm water runoff was a matter to be addressed by sanitation districts, the trial court properly granted summary judgment to a sanitation district and the cities and counties within its jurisdiction in the owners’ class action. Wessels Co., LLC v. Sanitation Dist. No. 1 of N. Ky., 238 S.W.3d 673, 2007 Ky. App. LEXIS 79 (Ky. Ct. App. 2007).

2.Stormwater Drainage Fees.

Sanitation district was authorized to impose stormwater drainage fees on an owner’s residential property because the owner’s property was a user of the sanitation district’s stormwater drainage plan, even though the owner’s property was not physically connected to a sewer system in that the owner’s property was served by a septic system, as the owner’s property clearly drained to a watershed within the sanitation district’s service area. Sanitation Dist. No. 1 v. Weinel, 2020 Ky. App. LEXIS 111 (Ky. Ct. App. Oct. 2, 2020).

220.520. Governmental units may be charged for service.

The reasonable cost and value of any services rendered to a city, county, school district or other municipal corporation by the district may be charged to the city, county, school district or other municipal corporation and shall be paid for monthly, as the service accrues, from current funds or the proceeds of taxes. The funds so paid shall be accounted for in the same manner as other revenues of the district.

History. 2062g-48.

220.530. Annexation of district or part of district by city.

Where a city having existing sewers constructed and maintained by general tax funds of the city annexes an entire sanitation district, the city shall be bound for all the debts and liabilities, and be the owner of all the property and rights, of the district, the users of sewers in the district shall be relieved from any further rentals and obligations, and the district shall thereupon be automatically dissolved. If only a portion of a sanitation district is annexed, the city shall be the owner of all the sewers within the annexed portion, the amount of the existing debts and liabilities for which the city shall be bound shall be in such proportion as the amount of rentals within the territory annexed bears to the amount of rentals in the entire district, the city shall in the same proportion contribute its proportionate share to the cost of the operation and maintenance of a sewer disposal plant or system as long as such plant or system is used by the property within the annexed area, and the users of sewers in the annexed portion shall be relieved from any further rentals or obligations to the district. Any city annexing a portion of a sanitation district may furnish sewage disposal for the portion of the district annexed and discontinue the use of the district’s sewage disposal plant or system, in which event the city shall be relieved from any further contribution towards the cost of operation or maintenance of the district’s plant or system.

History. 2062g-54.

Compiler’s Notes.

This section was amended by Acts 1948, ch. 118, however such amendment was repealed by Acts 1966, ch. 255, § 283, effective June 16, 1966.

NOTES TO DECISIONS

1.Constitutionality.

Acts 1948, ch. 118 (repealed by Acts 1966, ch. 255, § 283) amending this section and requiring a city of the first class, on annexation of sanitation district, to assume revenue bond obligations of the sanitation district, which bonds would be payable out of general funds of the city and which obligations would make city’s debt exceed limitation set out in Ky. Const., § 157, was unconstitutional as a violation of Ky. Const., §§ 2, 3 and 13. Sanitation Dist. of Jefferson County v. Louisville, 308 Ky. 368 , 213 S.W.2d 995, 1948 Ky. LEXIS 879 ( Ky. 1948 ).

2.Annexation.

In view of the fact that Acts 1948, ch. 118 (repealed by Acts 1966, ch. 255, § 283) which amended this section was declared unconstitutional, and in view of the fact that the original KRS 220.530 was impliedly repealed by the metropolitan sewer district act (KRS 76.010 to 76.210 ), the law now is that any revenue bonds still outstanding, issued by a sanitation district which has been annexed by a city of the first class, remain the valid obligation of the sanitation district, and the district is not dissolved until all obligations have been paid. Sanitation Dist. of Jefferson County v. Louisville, 308 Ky. 368 , 213 S.W.2d 995, 1948 Ky. LEXIS 879 ( Ky. 1948 ).

3.Implied Repeal.

Insofar as it concerns annexation by cities of the first class, where a city-county metropolitan sewer district has been created pursuant to KRS 76.010 to 76.210 , this section was impliedly repealed. Sanitation Dist. of Jefferson County v. Louisville & Jefferson County Metropolitan Sewer Dist., 307 Ky. 422 , 208 S.W.2d 751, 1948 Ky. LEXIS 616 ( Ky. 1948 ) (decision prior to repeal of Acts 1948, ch. 118 by § 283 of Acts 1966, ch. 255).

4.Interpretation.

The provisions of this section must be construed in the light of conditions at the time of its enactment. Sanitation Dist. of Jefferson County v. Louisville & Jefferson County Metropolitan Sewer Dist., 307 Ky. 422 , 208 S.W.2d 751, 1948 Ky. LEXIS 616 ( Ky. 1948 ) (decision prior to repeal of Acts 1948, ch. 118 by § 283 of Acts 1966, ch. 255).

Opinions of Attorney General.

Despite the fact that a municipal water and sewage system is not maintained by general tax funds, annexation of an area served by a separate sanitation district would automatically dissolve that district. OAG 72-407 .

There is nothing in KRS Chapter 278 that requires the prior permission of the state energy regulatory commission or utility commission in order for the provisions of this section to be activated upon the annexation of a sanitation district by a city, particularly in view of the provisions of KRS 220.540 detailing the effect of KRS 220.010 to 220.530 on other statutes. OAG 80-639 .

220.535. Petition for annexation of territory to district.

When the board of directors of a district in a county not containing a city of the first class desires to annex territory to the district, it shall cause to be filed with the commissioner a petition setting forth a reasonably accurate description of the territory proposed to be annexed, together with a statement of the reasons constituting the necessity for annexation of the territory. No such petition shall be declared void on account of alleged defects, but the commissioner may at any time permit amendments in form and substance to conform to the facts, by correcting any errors in the description of the territory or in any other particular.

History. Enact. Acts 1954, ch. 1, § 1.

Research References and Practice Aids

Cross-References.

Alternative method of annexation, KRS 76.405 , 76.410 .

220.536. Investigation and establishment of territorial boundaries — Inclusion of city — Notice to residents of territory — Annexation by multicounty district.

  1. When a petition for annexation of territory to a district is filed with the commissioner, he shall investigate at once the boundary of the territory proposed to be annexed, and may, at the cost of the district, cause to be made surveys necessary to establish with reasonable accuracy a boundary that will, in his judgment, accomplish the purpose sought by annexation of the territory in a practicable and workable manner, and that will be sufficiently comprehensive to avoid confusion or interference with any other similar district then existing or that may be created. The boundary established by the commissioner need not follow the boundary proposed by the district.
  2. Should it be found desirable to include in the territory to be annexed by a district all or a portion of a city of the home rule class, the governing body of such city shall determine by ordinance whether the city or portion thereof shall be included in the district, or whether the city shall bind itself to pay the charges for the services of the district furnished in such area.
  3. When the boundaries of the territory proposed to be annexed have been fixed by the commissioner as prescribed in subsection (1) of this section, he shall give notice of the application for annexation of the territory by publication pursuant to KRS Chapter 424.
  4. If a multicounty district proposes to annex the unincorporated territory of another contiguous county, and the fiscal court of the contiguous county expresses by resolution its approval of the annexation, then the commissioner shall accept the boundaries of the proposed annexation.

History. Enact. Acts 1954, ch. 1, § 2; 1966, ch. 239, § 169; 1988, ch. 330, § 3, effective July 15, 1988; 2014, ch. 92, § 279, effective January 1, 2015.

NOTES TO DECISIONS

1.Charges by Fifth or Sixth-Class Cities.

There is no authority in this section and KRS 220.080 for a city of the fifth or sixth class to charge the people of the city for facilities which will belong to the sanitation district and for the cost of which the district is authorized to impose charges. South Hills v. Sanitation Dist., 318 S.W.2d 873, 1958 Ky. LEXIS 156 ( Ky. 1958 ).

220.537. Procedure for protest against proposed annexation.

Owners of real property in the territory proposed to be annexed who wish to object to the annexation of the territory to the district shall, within thirty (30) days after the giving of notice by the commissioner, file a petition, signed by twenty-five percent (25%) of the freeholders in the territory proposed to be annexed, in the Circuit Court of the county in which the larger part of the territory proposed to be annexed is located, naming the commissioner, or in the case of annexation pursuant to KRS 220.536 (4) naming the district, as defendant and setting out in the petition their objections to the annexation of the territory. The commissioner or district shall be represented in the Circuit Court by the county attorney and in the Court of Appeals by the Attorney General, and he also may require his defense to be made by the district. The issues may be made up and the case may be docketed for hearing as in an action for a declaration of rights. The burden of proof shall be upon the plaintiffs to show cause why the territory, or any portion of it, should not be annexed to the district. If the court renders judgment against the commissioner or district, the judgment shall point out the changes required for annexation of the territory, which, if met by the commissioner or district, shall authorize annexation of the territory. If the proposed changes are not met by the commissioner or district, the territory shall not be annexed unless new proceedings are instituted in the manner prescribed by KRS 220.535 and 220.536 , but such new proceedings shall not be instituted for a period of six (6) months after the date of judgment. If the court gives judgment against the plaintiffs, the board of directors may annex the territory. An appeal shall suspend the judgment until the case has been passed upon by the Court of Appeals and final judgment rendered. Either the plaintiffs or the commissioner or district may appeal from the judgment of the Circuit Court to the Court of Appeals, but the commissioner or district shall not be required to make any appeal bond. Except as otherwise provided in this section, the pleading and practice shall be the same as in other suits in equity.

History. Enact. Acts 1954, ch. 1, § 3; 1976, ch. 62, § 105; 1976 (Ex. Sess.), ch. 14, § 211, effective January 2, 1978; 1988, ch. 330, § 4, effective July 15, 1988.

220.540. Effect of sanitation district law on other statutes.

No proceedings except as provided in KRS 220.010 to 220.530 shall be required for the acquisition of sanitary works or the issuance of bonds under those sections, notwithstanding any contrary provision in the general laws of the state or the charter of any city that may be included within a district organized under those sections, and to that extent those sections shall be construed to authorize an additional and alternate method of acquiring sanitary works and not as including, altering, amending or repealing any other statute.

History. 2062g-55.

220.542. Procedure for increase in service charge, rate, or user fee — Districts with fewer than 10,000 customer accounts exempted.

  1. If the rate increase in a service charge, rate, or user fee is greater than five percent (5%) of the previous charge, rate, or user fee, then the increase shall be subject to the provisions of subsections (2) and (3) of this section.
  2. In a district consisting of only one (1) county, before a proposed service charge, rate, or user fee may be adopted by the district board of directors of a district, it shall receive the approval of the fiscal court or legislative body of the county having jurisdiction over the district.
  3. In a district governed by the provisions of KRS 220.135 , or otherwise having jurisdiction in two (2) or more counties, before a proposed service charge, rate, or user fee may be adopted by the district board of directors, it shall receive the approval of a majority of the fiscal courts or legislative bodies of the counties having jurisdiction over a part of the district. Each approval of a fiscal court shall be equally weighted.
  4. A service charge, rate, or user fee shall not be increased more than once in a twelve (12) month period.
  5. The provisions of this section shall not apply to a district formed under this chapter with fewer than ten thousand (10,000) customer accounts.

History. Enact. Acts 2011, ch. 98, § 13, effective June 8, 2011.

220.544. Web site to provide public access to expenditure records of sanitation district — Monthly updates — Exemption — Registration with Department for Local Government — Application of KRS 65A.010 to 65A.090 for fiscal periods beginning on or after July 1, 2014.

  1. By January 1, 2012, each district board of directors of a district shall provide public access to records relating to expenditures of the district through display of the records on a Web site.
  2. The Web site shall be in a searchable format and shall provide financial information about expenditures not exempt under the provisions of state or federal law, including:
    1. The payee name;
    2. The category or type of expenditure;
    3. A description of the reason for the expenditure, if available;
    4. The expenditure amount;
    5. An electronic link to documents relating to the expenditure, if the documents are available electronically;
    6. The budget adopted by the district and subsequent amendments to that budget;
    7. The completed annual audit; and
    8. Any other information deemed relevant by the district.
  3. Information on the Web site shall be updated at least on a monthly basis and shall be maintained on the Web site for at least three (3) years.
  4. The provisions of this section shall not apply to sanitation districts with fewer than ten thousand (10,000) customer accounts.
    1. The district shall register with the Department for Local Government as required by KRS 65A.090 . (5) (a) The district shall register with the Department for Local Government as required by KRS 65A.090 .
    2. For fiscal periods beginning on and after July 1, 2014, the provisions of KRS 65A.010 to 65A.090 shall apply to districts. District board members shall work with the Department for Local Government to provide the information required by this section through the registry established by KRS 65A.020 .

History. Enact. Acts 2011, § 15, effective June 8, 2011; 2013, ch. 40, § 70, effective March 21, 2013.

220.550. Ohio River Valley Water Sanitation Compact. [Renumbered.]

Compiler’s Notes.

This section (4286 a-1) was recompiled as KRS 224.190 and was subsequently recompiled as KRS 224.18-760 , effective 1991.

220.551. Tennessee River Basin Water Pollution Control Compact. [Renumbered.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 44, § 1) was recompiled as 224.195 and was subsequently recompiled as KRS 224.18-780 , effective 1991.

220.552. Supplementary agreements with Tennessee. [Renumbered.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 44, § 4) was recompiled as KRS 224.200 and was subsequently recompiled as KRS 224.18-785 , effective 1991.

Construction Subdistricts

220.553. Construction subdistrict established — Petition — Procedure — Judicial review.

  1. The district may establish a construction subdistrict when twenty-five percent (25%) or more of the freeholders of land sought to be included in the construction subdistrict file their petition with the district. The petition shall describe the territory intended to be included in the construction subdistrict and the sewer and drainage conditions and facilities existing in this territory. The territory of the construction subdistrict may be noncontiguous to other territory of the district. Tenants in common, joint tenants with or without right of survivorship, and tenants by the entireties shall be deemed one (1) freeholder or property owner.
  2. When the petition is filed with the district, said district shall give notice of the filing by publication pursuant to KRS Chapter 424. Within thirty (30) days after the publication, any resident or freeholder of the proposed construction subdistrict may file objections and the district shall set the case for hearing within thirty (30) days. If the district finds that the establishment of the construction subdistrict is reasonably necessary for the public health, convenience and comfort of the residents of the subdistrict, it shall make an order establishing the construction subdistrict, and designating it by name and number.
  3. If the district finds that the construction subdistrict is not necessary, it may dismiss the petition. If the district finds that any part of the proposed territory will not be benefited, it may strike such part. If the district strikes a certain portion of the area, the signature of the freeholders of that portion shall not be counted in determining whether the necessary twenty-five percent (25%) have petitioned for the creation of the subdistrict. A copy of the order of the board establishing a construction subdistrict shall be published in accordance with KRS Chapter 424.
  4. An order of the district rejecting or dismissing the petition shall be deemed a final order of the district appealable to the Circuit Court under the procedure set forth in KRS 220.563 within sixty (60) days. Appeals to the Circuit Court from the order establishing a construction subdistrict or striking or refusing to strike any territory from a construction subdistrict shall be made only as provided in KRS 220.563 , and only after following the procedures required in KRS 220.563.

History. Enact. Acts 1966, ch. 92, § 3.

220.554. Construction subdistrict not to include nonconsenting city or district.

The construction subdistrict shall not include the whole or any part of any incorporated city, sanitation district, sewer construction district, or that part of a water district in which the water district has exercised its power to establish sanitary sewage facilities pursuant to KRS 74.407 to 74.415 except with the consent of the legislative or managing board of such city or district. With such consent, the property owners of such city or district will be considered as freeholders of the construction subdistrict.

History. Enact. Acts 1966, ch. 92, § 4; 2008, ch. 6, § 17, effective July 15, 2008.

220.555. Engineering survey of construction subdistrict — Assessment of benefits — Notice.

  1. The district board shall, before entering upon any construction work in any construction subdistrict or any contracts therefor, have an engineering survey made of the territory within the construction subdistrict and report to the district board as to plans for sewer or drainage construction or both and as to the estimated cost thereof, with recommendations as to whether or not such construction is technically and economically feasible.
  2. The district shall add to the engineering report a classification of benefit to property to permit assessment of real estate pursuant to KRS 220.571 , 220.575 , 220.583 and 220.585 if the district seeks to finance construction under one of those sections. The district shall cause notice of the proposed assessment to be mailed by first-class mail to every affected freeholder at his last known address prior to publication under subsection (1) of KRS 220.561 .

History. Enact. Acts 1966, ch. 92, § 5.

220.557. Engineering report filed, when.

The report described in KRS 220.555 shall be made and filed within one (1) year of an order made under KRS 220.553 which establishes the construction subdistrict or the order made under KRS 220.553 shall be deemed to have been one dismissing the petition and it shall be deemed to have been dismissed at the end of the one (1) year period.

History. Enact. Acts 1966, ch. 92, § 6; 1978, ch. 384, § 76, effective June 17, 1978.

220.560. Interstate water sanitation board. [Renumbered.]

Compiler’s Notes.

This section (4286 b-2) was recompiled as 224.205 and was subsequently recompiled as KRS 224.18-710 , effective 1991.

220.561. Notice of hearing — Publication — Order of construction and assessment.

  1. When the report described in KRS 220.555 is prepared, a copy shall be filed with the secretary-treasurer of the district who shall, within forty (40) days, cause notice of the filing of same and a notice of where the report is available for public inspection to be published pursuant to KRS Chapter 424. The notices shall state the time, date and place for a public hearing on the report. Any affected property owner may appear at the hearing. The district may appoint a hearing officer to conduct hearings, take testimony, and report the hearing to the district board.
  2. Following the hearing the district shall make and publish an order describing the construction plan in general, setting forth the assessment method adopted, if any, the parcels assessed, provision if any for application of KRS 107.140 (d), which relates to doing equity with respect to persons paying immediately and those who may be assessed later for extensions, and any other matters the district may see fit to include in the order.

History. Enact. Acts 1966, ch. 92, § 7.

220.563. Appeal from order of establishment or assessment — Procedure.

Within sixty (60) days after the final publication of an order made under KRS 220.553 , which dismisses a petition for creation of a construction subdistrict or within sixty (60) days after final publication of an order made under KRS 220.561 any person who would have been qualified to sign a petition described in KRS 220.553 may appeal such order of the district to the Circuit Court for the county in which the proposed construction subdistrict is located. All matters appealed from shall be tried de novo and as an equitable action. Decisions of the Circuit Court may be appealed to the Court of Appeals.

History. Enact. Acts 1966, ch. 92, § 8; 1976, ch. 62, § 106; 1978, ch. 384, § 77, effective June 17, 1978.

220.565. District may construct or contract for construction — No debts incurred until assessment final.

The district may carry out the plan itself or contract with others for construction of the sewerage facilities. The district shall incur no debts or obligations, aside from engineering study and administrative costs, on account of the construction subdistrict until an order made under KRS 220.561 is final and no longer appealable.

History. Enact. Acts 1966, ch. 92, § 9.

220.567. Combined methods of financing.

The district may adopt any combination of the financing methods for construction subdistricts authorized by KRS 220.571 , 220.575 , 220.577 , 220.583 , 220.585 and 220.587 , which are fair and equitable to the residents and freeholders of the construction subdistrict and which protect and preserve the rights of holders of subdistrict bonds and obligations already issued or to be issued with respect to the construction subdistrict. The method or methods adopted need not be uniform for all portions of the construction subdistrict, but may be based upon reasonable classification of the realty in the various portions.

History. Enact. Acts 1966, ch. 92, § 10.

220.570. Powers of commissions — Duties of state agencies. [Renumbered.]

Compiler’s Notes.

This section (4286b-3, 4286b-4) was recompiled 224.210 and was subsequently recompiled as KRS 224.18-715 , effective 1991.

220.571. Assessment of costs — Lien — Payment — Effect of nonpayment.

For facilities designed to serve the construction subdistrict the district may, pursuant to KRS 220.555 , adopt a method of assessment of benefited property on the basis of acreage or any other equitable basis set forth in the order and notify property owners affected by one (1) publication in a newspaper of general circulation in the county of the costs apportioned and the amounts assessed and levied on the various tracts of land liable for the payment. From that date the assessment shall constitute a lien against the property. The landowner may pay the assessment in full at any time within thirty (30) days after notice of assessment; provided, however, that if assessments are levied in accordance with KRS 107.010 to 107.220 the assessment cannot be paid in full within thirty (30) days. Every property owner not paying the full amount of his assessment within thirty (30) days shall be presumed to have consented to the issuing of sewer or drainage construction bonds. Liens may be recorded in any manner that any other statutory lien can be recorded.

History. Enact. Acts 1966, ch. 92, § 11.

220.573. Priority of construction subdistrict assessment liens — Enforcement.

  1. Assessment liens imposed by KRS 220.553 to 220.613 are prior to all other liens except liens for taxes and other assessment liens already attached.
  2. Assessment liens may be enforced pursuant to KRS 426.005 and 426.006 .

History. Enact. Acts 1966, ch. 92, § 12; 1978, ch. 384, § 78, effective June 17, 1978.

220.575. Bonds if assessments not paid — Term — Payment of assessments in installments.

  1. If all construction subdistrict assessments are not paid in full by thirty (30) days after notice of assessments, the district may issue bonds for the amount of the unpaid assessment, and shall give notice that it proposes to issue bonds, giving the amount of bonds to be issued, and the time they will become payable.
  2. At the expiration of thirty (30) days after the publication, the district may divide the unpaid assessments into not more than forty (40) annual installments, which shall draw interest at a rate or rates or method of determining rates as the district determines, payable at least annually, from thirty (30) days after the date of publication. The bonds shall mature in series to correspond with the installments into which the unpaid assessments are divided, and shall draw interest at the rate or rates or method of determining rates, payable at least annually, as the district determines, and be payable at some place to be designated by the district. The bonds shall be for the exclusive use and benefit of the construction and shall designate on the face the name of the construction subdistrict and the purpose for which they were issued.
  3. The district, in dividing the unpaid assessments into installments, shall fix the time of payment, and each landowner shall pay the installments, due on his land, with interest due on that installment and deferred installments, to the district on or before the time fixed by the district for the maturity of the installment.
  4. For purposes of KRS 220.595 assessments described in this section shall be deemed rates, rentals, or charges. Assessments may also be enforced by civil action.
  5. Bonds issued pursuant to this section are construction subdistrict bonds and obligations and are not obligations of the district.

History. Enact. Acts 1966, ch. 92, § 13; 1996, ch. 274, § 55, effective July 15, 1996.

220.577. Revenue bonds of construction subdistrict — Procedure — Contents.

  1. The district is authorized and empowered to issue negotiable, interest bearing, construction subdistrict bonds which shall not be an obligation of the district; construction subdistrict revenue bonds shall be secured solely by the revenues pledged by KRS 220.593 and by moneys, if any, in the construction subdistrict reserve fund authorized by KRS 220.593 . Construction subdistrict bonds can be issued to obtain funds for the building, installation, or acquisition of construction subdistrict facilities or for refunding construction subdistrict bonds of the same construction subdistrict. Notwithstanding the foregoing two (2) sentences construction subdistrict bonds can be served by assessments.
  2. Construction subdistrict bonds shall be authorized by resolution of the board, shall bear a date or dates, shall mature at a time or times, not exceeding forty (40) years from their respective dates, bear interest at a rate or rates or method of determining rates, be payable annually or more often, be in a form, wholly registered, registered as to principal with bearer coupon, or bearer with coupon, carry the registration privileges, be executed in a manner, be payable in a manner, be payable in a medium of payment at a place or places, and be subject to the terms of redemption, with or without premium, as the resolution or resolutions may require. Construction subdistrict bonds shall be sold at public sale for a price or prices as the board determines.
  3. Any resolution or resolutions authorizing any bonds pursuant to this section may contain provisions, which shall be a part of the contract with the holders of the bonds, concerning:
    1. A pledge of or a security interest in the revenue derived from the construction subdistrict;
    2. The amounts to be raised in each year by rates, rentals, and charges, and their use and disposition;
    3. The setting aside of reserves or sinking funds and their regulation and disposition;
    4. Limitations on the right of the district to restrict and regulate the use of the subdistrict facilities;
    5. Limitations on the purposes to which the proceeds of sale of any issue of bonds to be issued with respect to the same construction subdistrict may be applied;
    6. Limitations on the issuance of additional bonds for the same construction subdistrict; and
    7. The procedure, if any, by which the term of any contract with bondholders may be amended or be abrogated, and amount of the bonds the holders of which must give consent thereto, and the manner in which consent may be given.
  4. Construction subdistrict bonds shall not constitute an obligation or indebtedness of the district or of any city or county, and it shall be stated plainly on the face of each construction subdistrict bond that it has been issued under the provisions of KRS 220.553 to 220.613 and that it does not constitute an obligation or indebtedness of the district or any city or county. All construction subdistrict bonds issued may be issued without vote of the voters and without any other proceedings or happenings of any other condition or things than those proceedings, conditions, and things which are specified and required by KRS 220.553 to 220.613 . Construction subdistrict bonds shall be signed in the name of the district by the chairman or vice chairman of the board, attested by the signature of the secretary-treasurer, with corporate seal of the district attached. The bonds may also be executed pursuant to KRS 61.390 .

History. Enact. Acts 1966, ch. 92, § 14; 1978, ch. 384, § 79, effective June 17, 1978; 1996, ch. 274, § 56, effective July 15, 1996.

220.580. Definitions for KRS 220.580 to 220.650. [Renumbered and repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 69, § 3) was recompiled as KRS 224.010 and later repealed by Acts 1972, (1st Ex. Sess.), ch. 3, § 93.

220.581. Refunding of bonds secured by assessments.

If bonds have been issued for any construction subdistrict secured entirely or partially by the right to levy an assessment as provided by KRS 220.571 to 220.583 , 220.591 to 220.601 , and 220.607 to 220.613 and such bonds are redeemed prior to maturity, bonds to refund same may be issued secured solely by the revenue of said system in the manner provided in KRS 220.577 .

History. Enact. Acts 1966, ch. 92, § 15.

220.583. Financing may be arranged as in cities — Construction of terms from KRS Chapter 107.

  1. In the financing of a construction subdistrict the district may use the authority and procedure granted to incorporated municipalities by KRS 107.010 to 107.220 . When applied to construction subdistricts, terms used in KRS 107.010 to 107.220 shall be construed to mean the following: “city” means “sanitation district”; “ordinance” means “resolution”; “clerk” means “secretary-treasurer of district”; “governing body” means “sanitation district board”; and “mayor or chairman of board of directors” means “chairman of sanitation district board.” Bonds issued pursuant to this section are construction subdistrict bonds and obligations secured by assessments.
  2. The provisions of subsection (1), permitting financing subdistrict construction under the provisions of KRS 107.010 to 107.220 , shall not repeal or reduce any existing rights or duties of the district, but shall constitute an additional method of financing.

History. Enact. Acts 1966, ch. 92, § 16.

220.585. Financing by apportionment warrants.

After the creation of a construction district under the provisions of KRS 220.553 to 220.561 , the board may, if the board deems it feasible, instead of issuing bonds as provided in KRS 220.575 , issue apportionment warrants, using the procedures after assessment set out in KRS 184.150 to 184.250 , “road district” being read as “sanitation district,” “board of directors” being read as “sanitation district board” and the reference to roads being read as reference to sewers and treatment plants.

History. Enact. Acts 1966, ch. 92, § 17; 1978, ch. 384, § 80, effective June 17, 1978.

220.587. Financing methods temporarily inadequate — Procedure — Contracts.

  1. If the district finds as a fact that the methods of financing sewer facilities within a construction subdistrict provided for in KRS 220.553 to 220.613 will be inadequate, uneconomic, or unduly burdensome to the residents to be initially served, the district may contract with one (1) or more persons to construct or cause to be constructed a sewer system within the construction subdistrict or to advance or loan money to the district for the construction of a sewer system within the construction subdistrict. The sewer system constructed will be the property of the construction subdistrict and will be a construction subdistrict facility. When the district finds that one (1) or more financing methods for construction subdistricts established by KRS 220.553 to 220.613 , excluding this section, have become feasible, the district may adopt such method or methods to raise the money to pay for the construction of sewer facilities within the construction subdistrict or to pay the loan.
  2. The contract may be made prior to the making of an order establishing the construction subdistrict. The contract may require that one (1) or more persons agree to buy construction subdistrict bonds to be issued pursuant to KRS 220.577 in an amount specified, which shall be sufficient to finance the construction of the sewer system. The maximum price and yield of the bonds shall be stated in the contract. Such contract shall not prevent the district from selling the bonds to a lower bidder.
  3. All contracts made pursuant to this section shall be in writing and shall contain a covenant that this section shall prevail over any contrary feature of the contract.
  4. The General Assembly declares that the public policy of the Commonwealth will not be offended merely because a contract or loan made pursuant to this section is privately negotiated or because it is made without competitive bidding.
  5. Bonds sold to one (1) or more contracting parties pursuant to subsection (2) shall be endorsed to disclose the nature of the sale. Such bonds, no matter who the holder or owner, shall never be eligible to have any payment made on their account pursuant to KRS 220.593(6).

History. Enact. Acts 1966, ch. 92, § 18; 1978, ch. 384, § 81, effective June 17, 1978.

220.590. Policy and purposes. [Renumbered.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 69, §§ 1, 2) was recompiled as KRS 224.010 and was subsequently recompiled as KRS 224.70-100 , effective 1991.

220.591. Default on revenue bonds — Trustee appointed — Actions by trustee, receiver, powers.

  1. The holders in aggregate principal amount of twenty percent (20%) of any class of construction subdistrict bonds authorized by KRS 220.577 may ex parte move a judge of the Circuit Court of the county containing the construction subdistrict to appoint a trustee to represent all of the holders of the same class of bonds when the facts described in paragraph (b) of subsection (2) have occurred.
  2. The judge shall appoint a trustee (which may be corporate) upon a showing that:
    1. Movants in fact are holders of twenty percent (20%) or more of the aggregate principal amount of the affected class of the bonds;
    2. Movants claim that there has been a default exceeding thirty (30) days in the payment of interest or principal on the bonds, that the district has failed to comply with the provisions of KRS 220.553 to 220.613 relating to construction subdistrict bonds, or that the district has breached a contract with the holders of the bonds;
    3. Movants have filed in the office of the county clerk of the county containing the district an instrument in the nature of a notice of action against the district which instrument states that movants have applied to have a trustee appointed pursuant to this section and which names the affected construction subdistrict.
  3. The trustee may, or upon written request of any twenty percent (20%) in aggregate principal amount of his bondholder beneficiaries shall, file an action in his name against the district; the action shall seek all remedies, including but not limited to mandamus, prohibition, judgment against a special fund or funds injunction, and declaratory judgment, needed to preserve and enforce the rights of the bondholders. The action shall be filed in the Circuit Court of the county containing the district.
  4. The rights of bondholders include, but are not limited to, the right to:
    1. Require the district to collect from the construction subdistrict rates, rentals, and charges adequate to pay principal and interest on the bonds;
    2. Require the district to perform all lawful agreements with the bondholders;
    3. Require the district to account to the bondholders as if it were trustee of an express trust for their benefit;
    4. Have the district enjoined from doing any acts or things which may be unlawful or in violation of the rights of the bondholders;
    5. Have all bonds of the affected class declared due and payable.
  5. Any trustee, whether or not all bonds have been declared due and payable, shall be entitled as of right, upon application to the Circuit Court, to the appointment of a receiver, who may enter upon and take possession of the construction subdistrict facilities, or any part thereof, and operate and maintain the same, and collect and receive all rentals, rates, other charges and revenues of the construction subdistrict payable after commencement of the receivership. The receiver shall deposit such moneys in a separate account and apply them as the court directs. In any suit, action, or proceeding, by the trustee, the fees, counsel fees, and expenses of the trustee and of the receiver, if any, shall constitute disbursements taxable as cost. All costs and disbursements allowed by the court shall be a first charge on any revenue derived from the construction subdistrict facilities. Such trustee shall, in addition to the foregoing, have and possess all the powers necessary or appropriate for the exercise of any functions specifically set forth herein or incident to the general representation of the bondholders in the enforcement and protection of their rights.

History. Enact. Acts 1966, ch. 92, § 19; 1978, ch. 384, §§ 82, 360, effective June 17, 1978.

Legislative Research Commission Note.

This section was amended by two sections of ch. 384 of Acts 1978 which do not appear to be in conflict and have been compiled together.

220.593. Rate schedule for construction subdistrict — Notice — Objections — Purposes — Trust fund for revenue bonds.

  1. The district is authorized to establish a schedule of rates, rentals, and charges to be collected from all real property within a construction subdistrict served by construction subdistrict facilities. This schedule shall be in addition to the charge authorized by KRS 220.510 . This schedule shall be determined for each construction subdistrict on the basis of one (1) or more of the factors stated in KRS 220.510 .
  2. Before final adoption of such a schedule the district shall give notice of it pursuant to KRS Chapter 424. The first notice shall be dated as of the date of the first publication; that notice shall state that the proposed or revised schedule of rates, rentals, and charges will remain open for inspection in the office of the district for thirty (30) days from the date in the notice, and that any person claiming to be aggrieved by the proposed schedule may file written objections to it with the district. The district shall examine and hear any and all such objections, may modify the proposed schedule, and shall adopt and establish a final schedule within sixty (60) days after the date of the first notice.
  3. Such schedule shall be established and revised from time to time so as to produce revenues for the construction subdistrict sufficient:
    1. For the payment of all construction subdistrict bonds and obligations except those payable from assessments,
    2. For the payment of all costs and expenses of operating and maintaining the construction subdistrict which expenses shall include, but not be limited to, an equitable portion of the wages, salaries, and fees of officers and employees of the district,
    3. For the payment to the district of an amount which represents an equitable allocation of the cost of district facilities used, directly or indirectly, by the construction subdistrict if there is such a use,
    4. To meet all or part of reasonably foreseeable future need for trunk, main, connecting sewers and any other facilities necessary to link the construction subdistrict facilities to the district facilities, or, where such linkage is not feasible, to link the construction subdistrict facilities to and dispose of the sewage in a treatment plant serving at least one (1) other construction subdistrict,
    5. For the payment of an equitable portion, not to exceed twice the amount required by paragraph (b), of any amount necessary to establish and maintain a fund created by subsection (6), and
    6. For the payment of all cost of renewals and replacements of construction subdistrict facilities.
  4. Any and all portions of expenses, salaries, wages and fees necessary or incident to improvements for which bonds are issued may be paid from bond proceeds.
  5. The rates, rentals, and charges authorized by this section need not be the same for all real property within the construction subdistrict but may be based upon any reasonable classification.
  6. The district may create a fund which the district shall hold in trust to guarantee payment of construction subdistrict bonds authorized by KRS 220.577 . As trustee of such fund, the district, to the extent of any payment made from it, shall have all the rights of bondholders against the construction subdistrict revenues. Bondholders’ current rights shall prevail, however, over the fund’s rights. The fund shall not exceed ten percent (10%) of the principal amount of the bonds outstanding under KRS 220.577 . Payment from the fund shall not exceed fifteen percent (15%) of the unpaid principal amount of any bond in default. If the principal amount of the bonds outstanding becomes less than ten (10) times the amount in the fund, any excess in the fund (beyond the maximum amount authorized) shall be transferred to a separate special fund to be spent, when deemed advisable by the board, for construction, improvement, maintenance, or operation of sewerage or drainage facilities which will benefit the construction subdistricts which have contributed to the fund.

History. Enact. Acts 1966, ch. 92, § 20.

220.595. Cut off of water supply of user in construction subdistrict.

The district is granted the same authority relative to the cutting off of the water supply of its delinquent users within a construction subdistrict as is contained in KRS 220.510 relative to other territory under the jurisdiction of the district. Delinquents include persons or users who have failed to make timely payment of any assessment authorized by KRS 220.553 to 220.613 , or any payment required by KRS 220.591 .

History. Enact. Acts 1966, ch. 92, § 21; 1978, ch. 384, § 83, effective June 17, 1978.

220.597. Operating and maintenance costs of subdistrict system, how paid.

Sewers constructed by construction subdistricts shall be operated and maintained by the district and payment for the actual cost, including overhead and administrative costs, shall be paid by the district from funds of the construction subdistricts. Where sewer systems constructed by construction subdistricts are connected to the district facilities an equitable proportionate charge for treatment of sewage at the district sewage treatment plant or plants shall also be transferred from the accounts of the construction subdistrict to the district.

History. Enact. Acts 1966, ch. 92, § 22.

220.600. Water pollution control commission — Creation — Membership — Compensation — Organization — Meetings. [Renumbered and repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 69, § 4; 1952, ch. 127; 1958, ch. 148; 1966, ch. 21, § 1) was recompiled as KRS 224.030 and later repealed by Acts 1972 (1st Ex. Sess.) ch. 3, § 93.

220.601. Property of district, bonds and income therefrom exempt from tax.

The establishment, financing and operation of a construction subdistrict by the district are in all respects in the interest of public health and for a public purpose. In so doing the district performs a governmental function in the exercise of the powers conferred upon it, and it shall be required to pay no taxes or assessments upon any property owned or acquired by it, or upon its activities in the operation and maintenance of its subdistrict facilities. Construction subdistrict bonds and the income therefrom are exempt from taxation.

History. Enact. Acts 1966, ch. 92, § 23.

220.603. Procedure for annexation to subdistricts.

After the creation of a construction subdistrict under the provisions of KRS 220.553 to 220.613 , the board of the sanitation district may, if it deems it advisable, use the authority and procedures granted to sanitation districts by KRS 220.535 to 220.537 to annex territory to a subdistrict.

History. Enact. Acts 1966, ch. 92, § 24; 1978, ch. 384, § 84, effective June 17, 1978.

220.605. Sewage systems may become construction subdistricts, when — Incorporated in district, when.

A sewage system owned by any municipality, political subdivision, or any other entity, public or private, may be made a construction subdistrict or incorporated into the district area by the board under the conditions of this section.

  1. Any such system may be made a construction subdistrict only when:
    1. Express, written consent of all bondholders and secured creditors has been obtained;
    2. The governing body or owner of such district or system has consented in writing; and
    3. The board has determined that the policy of KRS 220.010 to 220.540 will best be served by making such district or system a construction subdistrict.
  2. When such district or system has been made a construction subdistrict under subsection (1), KRS 220.553 to 220.575 and KRS 220.583 to 220.587 shall not apply to it.
  3. Any such system may be incorporated by the board into the district areas only when:
    1. All debts of the system have been paid or an amount of either money or securities lawful as investments under KRS 386.020 has been laid aside to pay them by the governing body or owner of such district or system;
    2. The governing body or owner of such system has consented in writing;
    3. The board has determined that the policy of KRS 220.010 to 220.540 will best be served by incorporating such district or system into the district area.

History. Enact. Acts 1966, ch. 92, § 25; 1978, ch. 384, § 85, effective June 17, 1978.

220.607. Winding up of construction subdistrict affairs, when, effect.

The district shall wind up the affairs of a construction subdistrict and incorporate it into the district area only when:

  1. The board finds that such action would best serve the policy of KRS 220.010 to 220.540 .
  2. There is not outstanding any bonds issued pursuant to KRS 220.611(2) if the proceeds of such bond issue have been used, are being used, or will be used to construct trunk, main, or intercepting sewers which, directly or indirectly, connect the construction subdistrict to either the district facilities or to a treatment plant, disposal plant, or outlet sewer also serving, directly or indirectly, another construction subdistrict.
  3. The construction subdistrict has no outstanding obligations.
  4. The construction subdistrict has paid for its equitably allocable share of the capital costs of, and is connected to, directly or indirectly either:
    1. The district facilities; or
    2. A treatment plant, disposal plant, or outfall sewer and any trunk, main or intercepting sewers built to connect at least two (2) construction subdistricts to such treatment or disposal plant, or outfall sewer.

History. Enact. Acts 1966, ch. 92, § 26.

220.610. Powers and duties of commission. [Renumbered.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 69, § 5) was recompiled as KRS 224.040 and later repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93.

220.611. Bonds of several construction subdistricts — Purposes, effect.

  1. The district may issue for one (1) or more construction subdistricts bonds to finance construction of trunk, main, connecting sewers and any other facilities necessary to which, directly or indirectly, connect one (1) or more of such construction subdistricts to either the district facilities or to a treatment plant, disposal plant, or outfall sewer which also serves, directly or indirectly, at least one (1) other construction subdistrict. Such bonds may also be used to finance construction of a treatment plant, disposal plant, or outfall sewer of the type described in the preceding sentence.
  2. Bonds issued pursuant to subsection (1) shall be construction subdistrict obligations for all construction subdistricts for which they are issued.
  3. Except as provided in this section, bonds authorized by subsection (1) shall be governed by KRS 220.577 and 220.591 . Such bonds shall be construction subdistrict bonds within the meaning of paragraph (a) of subsection (3) of KRS 220.593 . They shall not be considered construction subdistrict bonds within the meaning of subsection (6) of KRS 220.593 .

History. Enact. Acts 1966, ch. 92, § 27.

220.613. Revenue bonds alternate method of financing.

The provisions of KRS 220.577 , 220.581 and 220.611 , providing for financing with revenue bonds, shall not repeal nor reduce any existing rights or duties of the district, but shall constitute an additional and alternate method of financing.

History. Enact. Acts 1962, ch. 92, § 28.

220.620. Commission is state agency for purposes of federal water pollution control act. [Renumbered and repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 69, § 6; 1966, ch. 21, § 2) was recompiled as KRS 224.050 and later repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93.

220.630. General prohibition against pollution and related acts — Permits. [Renumbered.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 69, § 7) was recompiled as KRS 224.060 , and was subsequently recompiled as KRS 224.70-110 effective 1991.

220.640. Hearings — Appeals from orders or rulings of commission. [Renumbered and repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 69, § 8; 1962, ch. 174; 1966, ch. 21, § 3) was recompiled as KRS 224.080 and later repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93.

220.650. Pollution control law supplements other laws. [Renumbered.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 69, § 10) was recompiled as KRS 224.100 , and was subsequently recompiled as KRS 224.01-060 effective 1991.

220.660. Sewerage treatment company may condemn right of way — Approval required — Objections. [Renumbered.]

Compiler’s Notes.

This section (Enact. Acts 1964, ch. 196, §§ 1 to 3) was recompiled as KRS 224.130 , and was subsequently recompiled as KRS 224.73-100 effective 1991.

Penalties

220.990. Penalties — Injunctions. [Renumbered and repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 69, § 9) was recompiled as KRS 224.990 and later repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93.

CHAPTER 221 Frozen Food Locker Plants

221.010. Definitions for chapter.

As used in this chapter unless the context requires otherwise:

  1. “Secretary” means the secretary of the Cabinet for Health and Family Services;
  2. “Cabinet” means the Cabinet for Health and Family Services;
  3. “Food” includes any article used by man for food, drink, confectionery, or condiment, or which enters into the composition of the same whether simple, blended, mixed, or compounded;
  4. “Frozen food locker plant” means a location or establishment in which space in individual lockers is rented to persons for storage of frozen food and which is equipped with a chill room, sharp-freezing facilities, and facilities for cutting, preparing, wrapping, and packaging meats and meat products, fruits, and vegetables;
  5. “Branch frozen food locker plant” means a location or establishment in which space in individual lockers is rented to persons for storage of frozen food after preparation for storage at a frozen food locker plant; and
  6. “Sharp-frozen” means the freezing of food in a room in which the temperature is zero (0) degrees Fahrenheit or lower.

History. Enact. Acts 1946, ch. 200, § 2; 1954, ch. 134, § 1; 1974, ch. 74, Art. VI, § 85; 1998, ch. 426, § 497, effective July 15, 1998; 2005, ch. 99, § 557, effective June 20, 2005.

221.020. Plants to be licensed — License fees — Expiration and renewal of licenses — Licenses nontransferable.

  1. Each frozen food locker plant or branch frozen food locker plant operated in this state shall be licensed under and subject to the provisions of KRS 221.010 to 221.100 .
  2. The cabinet shall promulgate administrative regulations to establish a fee not to exceed administrative costs of the program to the cabinet, that shall be paid with each application for a refrigerated locker license or for annual license renewal, and the funds therefrom shall be disbursed by the cabinet for the enforcement of KRS 221.010 to 221.100 .
  3. Each such license shall expire on December 31 following its date of issue, unless sooner revoked for cause. Renewal may be obtained annually by surrendering to the cabinet the old license certificate and paying the required annual license fee. The license fee shall not be transferable to any person nor be applicable to any location other than that for which originally issued.

History. Enact. Acts 1946, ch. 200, § 3; 1954, ch. 134, § 2; 1974, ch. 74, Art. VI, § 107(21); 2018 ch. 136, § 17, effective July 1, 2019.

Compiler’s Notes.

For this section as effective until July 1, 2019, see the bound volume.

221.030. Administration of chapter — Administrative regulations — Approval by Board of Housing, Buildings and Construction — Hearings.

  1. The cabinet, through its secretary or his or her authorized agents, shall have the authority of supervising and enforcing the provisions of KRS 221.010 to 221.100 .
  2. The secretary may promulgate and enforce administrative regulations deemed necessary to carry into effect the full intent and meaning of KRS 221.010 to 221.100 . Construction standards for buildings used as frozen food locker plants shall be effective only if approved by the Board of Housing, Buildings and Construction and included in the Uniform State Building Code. Any construction plan reviews for such buildings required prior to approval for construction shall be conducted by the Department of Housing, Buildings and Construction.
  3. In any administrative hearing conducted under KRS 221.010 to 221.100 , the provisions of KRS Chapter 13B shall be followed.

History. Enact. Acts 1946, ch. 200, §§ 7, 8, 11; 1954, ch. 134, § 3; 1974, ch. 74, Art. VI, § 107(21); 1978, ch. 117, § 22, effective February 28, 1980; 1996, ch. 318, § 133, effective July 15, 1996; 2010, ch. 24, § 335, effective July 15, 2010.

221.040. Revocation or suspension of licenses — Notice and hearing — Court review.

  1. The secretary may revoke or suspend a frozen food locker plant license if he finds on investigation that the licensee has violated any provisions of the law relating to frozen food locker plants or any law relating to the handling of human food, or has failed to comply with any administrative regulation promulgated pursuant to applicable laws; or that the premises or any equipment used in connection therewith is in an unsanitary condition.
  2. No license shall be revoked or suspended by the secretary without delivery to the licensee of a written statement of the charge involved and an opportunity to answer the charge in a hearing conducted in accordance with KRS Chapter 13B.
  3. Any final order made by the secretary suspending or revoking any license may be reviewed by the Circuit Court of the county in which the licensed premises are located in accordance with KRS Chapter 13B.

History. Enact. Acts 1946, ch. 200, § 4; 1954, ch. 134, § 4; 1974, ch. 74, Art. VI, § 107(21); 1996, ch. 318, § 134, effective July 15, 1996.

221.050. Health certificates for employes. [Repealed.]

Compiler’s Notes.

This section (Enact. 1946, ch. 200, § 5) was repealed by Acts 1954, ch. 134, § 6.

221.060. Inspection and rejection of food — Storage of tainted food or food for nonhuman consumption.

  1. The locker operator, or the secretary, or their authorized agents, may at any reasonable time inspect all foods, wares or merchandise before same is placed in the locker storage. The locker operator or the secretary, or their agents, may reject any foods, wares or merchandise and may refuse to place same for storage, if in the locker operator’s opinion said food, wares or merchandise is not in suitable or proper condition for storage.
  2. No tainted food shall be stored in a refrigerated locker, and food for nonhuman consumption shall be stored in a separate room.

History. Enact. Acts 1946, ch. 200, §§ 6, 13; 1974, ch. 74, Art. VI, § 107(21).

221.070. Inspection of establishments and vehicles.

The secretary shall cause to be made periodically a thorough inspection of each establishment licensed under KRS 221.010 to 221.100 to determine whether or not the premises are equipped and operated in accordance with the requirements of KRS 221.010 to 221.100 and of all other laws of this state applicable to the operation either of refrigerated lockers or of the handling of human food in connection therewith, and of all regulations effective under KRS 221.010 to 221.100 relative to such operation. Such inspection shall also be made of each vehicle used by the operator of refrigerated lockers or of an establishment, handling human food in connection therewith, when such vehicle is used in transporting or distributing human food products to or from refrigerated lockers within this state.

History. Enact. Acts 1946, ch. 200, § 9; 1974, ch. 74, Art. VI, § 107 (21); 1978, ch. 117, § 23, effective February 28, 1980.

Research References and Practice Aids

Cross-References.

Sanitation of food establishments, KRS 217.280 to 217.390 .

221.080. Refrigeration system — Required temperatures.

Every operator of a refrigerated locker plant shall provide a complete refrigeration system with adequate capacity and accurate and reliable controls for the maintenance of the following uniform temperatures of the various refrigerated rooms if provided, under extreme conditions of outside temperatures and under peak load conditions in the normal operation of the plant. The temperatures of the following rooms shall not exceed:

  1. Chill room, temperature within two (2) degrees Fahrenheit, plus or minus, of thirty-five (35) degrees Fahrenheit with a tolerance of ten (10) degrees Fahrenheit after fresh food is put in for chilling;
  2. Sharp freeze room, sharp freeze compartments, temperatures of minus ten (-10) degrees Fahrenheit or lower, or temperatures of zero (0) degrees Fahrenheit or lower when forced air circulation is employed, with a tolerance of ten (10) degrees Fahrenheit for either type of installation after fresh food is put in for freezing;
  3. Locker room temperature of zero (0) degrees Fahrenheit with a tolerance of twelve (12) degrees Fahrenheit plus.

History. Enact. Acts 1946, ch. 200, § 10.

221.090. Liability of operator for loss of goods — Status not that of warehouseman — Receipts.

  1. The liability of the owner or operator of refrigerated lockers for loss of goods in lockers or in operator’s care shall be limited to negligence of operation or of employees.
  2. Persons who own or operate refrigerated locker plants shall not be construed to be warehousemen, nor shall receipts or other instruments issued by such persons in the ordinary conduct of their business be construed to be negotiable warehouse receipts.

History. Enact. Acts 1946, ch. 200, §§ 12, 15.

221.100. Lien of operator for charges — Foreclosure — Disposition of proceeds of sale.

The owner of any frozen food locker plant shall have a lien on the contents of each locker, compartment or space for the payment of the locker rental thereon and any processing or other charges. Such lien may be foreclosed by giving a written notice by certified mail, return receipt requested to the renter of such locker, compartment or space, and, after ten (10) days from date of the notice, the owner may proceed to sell the contents of the locker, at either public or private sale, for the reasonable value of its contents. If the proceeds from the sale exceed the amount of the lien, the balance shall be duly paid to the renter. The place, time and kind of sale shall conform to the written notice to the renter.

History. Enact. Acts 1946, ch. 200, § 14; 1974, ch. 315, § 31; 1980, ch. 114, § 44, effective July 15, 1980.

221.110. Regulation of frozen food lockers is in public interest.

KRS 221.010 to 221.100 are in exercise of the police powers of the state for the protection of the safety, health and welfare of the people of the state. It is hereby found and declared that the public welfare requires control and regulation of the operation of refrigerated lockers and of the sale, handling and processing of articles of human food in connection therewith, and the control, inspection and regulation of persons engaged therein, in order to prevent or eliminate unsanitary, unhealthful, fraudulent, and unfair or uneconomic practices and conditions in connection with the refrigerated locker business, which practices and conditions endanger public health, defraud customers, jeopardize the public source of supply and storage facilities of essential food products, and adversely affect an important and growing industry. It is further found and declared that the regulation of the refrigerated locker business, as above outlined, is in the interest of the economic and social well-being and the health and safety of the state and all of its people.

History. Enact. Acts 1946, ch. 200, § 1.

Penalties

221.990. Penalties.

Any person violating any provision of KRS 221.010 to 221.100 shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not less than fifty dollars ($50) for the first offense, and not less than one hundred dollars ($100) for the second and for each and every subsequent offense, and each day that any violation continues shall constitute a separate offense.

History. Enact. Acts 1946, ch. 200, § 16.

CHAPTER 222 Kentucky Alcohol and Other Drug Abuse Prevention, Intervention, and Treatment Law

222.001. Chapter title. [Repealed]

History. Enact. Acts 1994, ch. 334, § 15, effective July 15, 1994; repealed by 2019 ch. 128, § 31, effective June 27, 2019.

222.003. Scope and application of chapter.

  1. The programs or activities of the voluntary self-help organizations known as Alcoholics Anonymous, Narcotics Anonymous, Al-Anon, and similar organizations in the area of substance use disorder rehabilitation shall not be restricted or regulated by the provisions of this chapter.
  2. The programs or activities of voluntary community groups and agencies, such as Students Against Drunk Driving, National Federation of Parents, Parent Resource Institute for Drug Education, and similar organizations in the area of substance use disorder prevention, shall not be restricted or regulated by the provisions of this chapter.
  3. Nothing contained in this chapter shall affect any laws, administrative regulations, ordinances, resolutions, or local regulations against driving under the influence of alcohol or other drugs, or other similar offenses that involve the operation of motor vehicles, machinery, or other hazardous equipment.

History. Enact. Acts 1994, ch. 334, § 6, effective July 15, 1994; 2019 ch. 128, § 9, effective June 27, 2019.

222.005. Definitions for chapter.

As used in this chapter, unless the context otherwise requires:

  1. “Administrator” means the person or the designee of the person, in charge of the operation of substance use disorder prevention, intervention, or treatment program;
  2. “Agency” means a legal entity operating hospital-based or nonhospital-based substance use disorder prevention, intervention, or treatment programs;
  3. “Cabinet” means the Cabinet for Health and Family Services;
  4. “Director” means the director of the Division of Behavioral Health of the Department for Behavioral Health, Developmental and Intellectual Disabilities;
  5. “Hospital” means an establishment with organized medical staff and permanent facilities with inpatient beds which provide medical services, including physician services and continuous nursing services for the diagnosis and treatment of patients who have a variety of medical conditions, both surgical and nonsurgical;
  6. “Intoxication” means being under the influence of alcohol or other drugs, or both, which significantly impairs a person’s ability to function;
  7. “Narcotic treatment program” means a substance use disorder program using approved controlled substances and offering a range of treatment procedures and services for the rehabilitation of persons dependent on opium, morphine, heroin, or any derivative or synthetic drug of that group;
  8. “Other drugs” means controlled substances as defined in KRS Chapter 218A and volatile substances as defined in KRS 217.900 ;
  9. “Patient” means any person admitted to a hospital or a licensed substance use disorder treatment program;
  10. “Program” means a set of services rendered directly to the public that is organized around a common goal of either preventing, intervening, or treating substance use disorder problems;
  11. “Secretary” means the secretary of the Cabinet for Health and Family Services;
  12. “Substance use disorder” means a cluster of cognitive, behavioral, and physiological symptoms indicating that the individual continues using the substance despite significant substance-related problems. Criteria for substance use disorder are in the most current edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.
  13. “Treatment” means services and programs for the care and rehabilitation of intoxicated persons and persons suffering from substance use disorder. “Treatment” includes those services provided by the cabinet in KRS 222.211 and, in KRS 222.430 to 222.437 , it specifically includes the services described in KRS 222.211 (1)(c) and (d); and
  14. “Qualified health professional” has the same meaning as qualified mental health professional in KRS 202A.011 , except that it also includes an alcohol and drug counselor licensed or certified under KRS Chapter 309.

History. Enact. Acts 1994, ch. 334, § 1, effective July 15, 1994; 1996, ch. 242, § 1, effective July 15, 1996; 1998, ch. 426, § 498, effective July 15, 1998; 2004, ch. 116, § 11, effective July 13, 2004; 2005, ch. 99, § 558, effective June 20, 2005; 2012, ch. 146, § 109, effective July 12, 2012; 2012, ch. 158, § 67, effective July 12, 2012; 2015 ch. 29, § 19, effective June 24, 2015; 2015 ch. 29, § 19, effective June 24, 2015; 2019 ch. 128, § 10, effective June 27, 2019.

NOTES TO DECISIONS

1.Applicability.

Exclusions in a group insurance plan for injuries resulting from participation in a crime or from “legal (alcohol) intoxication as defined by Kentucky law” did not apply to the appellee, injured while drag racing with blood alcohol level at .21% because, according to the insured’s definitions of the ambiguous contract terms, the Kentucky Penal Code defines drag racing as a traffic offense, not a crime (defined as a misdemeanor or felony) and because under the only statutory provision limited to alcohol intoxication, legal intoxication requires having been adjudicated guilty. Section 501.010 is not applicable because it includes other drugs, whereas the insurance contract made a distinction between alcohol and other drugs; this section did not apply because it was enacted after the accident. Healthwise of Kentucky v. Anglin, 956 S.W.2d 213, 1997 Ky. LEXIS 150 ( Ky. 1997 ).

Substantial evidence supported neglect finding because (1) it was no error to consider a father’s prior termination of parental rights in which abuse or neglect had to be found, which was relevant, and whether substance abuse incapacitated the father had to be considered, and (2) the evidence showed the father’s drug use and the earlier proceeding caused and exacerbated the father’s legal problems involving children, and the father’s incorrect prescription use showed continued dependency and a fear of withdrawal. Cabinet for Health & Family Servs. v. C.B., 556 S.W.3d 568, 2018 Ky. LEXIS 365 ( Ky. 2018 ).

2.Intoxication.

Where the insurer denied a death and dismemberment policy beneficiary’s claim under an exclusion in the policy for a death that occurred from intoxication based on the insurance company’s findings that the husband’s death certificate indicated that the cause of death was alcohol poisoning, the decedent’s blood alcohol content being 0.318 percent at the time of death, the denial of benefits was not arbitrary and capricious under 29 USCS § 1132. The ordinary and popular meaning of “intoxication” included alcohol poisoning, and the term was not ambiguous, as demonstrated by the definition for intoxication for the purposes of state law set forth in KRS 222.005(7). Brauer v. Prudential Ins. Co. of Am., 2006 U.S. Dist. LEXIS 348 (E.D. Ky. Jan. 4, 2006).

Cited:

Commonwealth v. G.C.W., 139 S.W.3d 172, 2004 Ky. App. LEXIS 215 (Ky. Ct. App. 2004).

222.010. Purpose of KRS 222.010 to 222.070. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1956, ch. 74, § 1) was repealed by Acts 1962, ch. 106, Art. XII, § 3.

222.011. Definitions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 166, § 5; 1972, ch. 266, § 3; 1974, ch. 74, Art. VI, § 86; 1974, ch. 308, § 42) was repealed by Acts 1994, ch. 334, § 19, effective July 15, 1994. For present law see KRS 222.005 .

222.015. Intoxication not an offense giving rise to criminal or civil penalty. [Repealed.]

Compiler’s Notes.

This section was originally enacted by Acts 1980, ch. 254, § 7 which was repealed by Acts 1982, ch. 312, § 15, before it became effective on July 1, 1982. Section 7 of Acts 1982, ch. 312 enacted a new section identical to the repealed version to become effective July 1, 1984 which date Acts 1984, ch. 205, § 1 attempted to change to July 15, 1986 but because of a technical error the effective date became July 1, 1986. Acts 1986, ch. 336 repealed Acts 1980, ch. 254, 1982, ch. 312 and 1984, ch. 205, effective July 1, 1986. Therefore this section never became effective and is repealed.

Legislative Research Commission Note.

Acts 1986, ch. 336, § 13 provides: “It is the intent of the General Assembly that the amendments and repealers of Acts 1980, Chapter 254 and Acts 1982, Chapter 312 not become effective and that the statutes affected thereby remain as not amended or not repealed, except as affected by this Act or by legislation other than Acts 1980, Chapter 254; Acts 1982, Chapter 312; and Acts 1984, Chapter 205, passed during 1980, 1982 and 1984.”

222.020. Kentucky commission on alcohol and drug problems — Members — Duties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1956, ch. 74, § 2; 1962, ch. 106, Art. XII, § 2; 1968, ch. 92, § 1; 1970, ch. 125, § 3; 1972, ch. 166, § 1) was repealed by Acts 1974, ch. 74, Art. VI, § 108.

222.021. Substance Abuse, Pregnancy, and Women of Childbearing Age Work Group — Membership — Duties — Expiration of section. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1992, ch. 442, § 2, effective July 14, 1992; 1998, ch. 310, § 1, effective July 15, 1998; 1998, ch. 426, § 499, effective July 15, 1998; 2000, ch. 14, § 49, effective July 14, 2000; 2000, ch. 536, § 28, effective July 14, 2000), was repealed by Acts 2004, ch. 116, § 20, effective July 13, 2004.

222.025. Expenses of commission members or representatives. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1960, ch. 235) was repealed by Acts 1962, ch. 106, Art. XII, § 3.

222.030. Appointment of executive director; term; removal; salary. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1956, ch. 74, § 3) was repealed by Acts 1962, ch. 106, Art. XII, § 3.

222.031. Planning and coordination of programs on alcoholism and drug abuse — Interagency councils. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1968, ch. 92, § 3; 1972, ch. 166, § 2; 1974, ch. 74, Art. VI, § 87; 1974, ch. 308, § 43; 1978, ch. 384, § 86, effective June 17, 1978; 1980, ch. 188, § 320, effective July 15, 1980) was repealed by Acts 1994, ch. 334, § 19, effective July 15, 1994. For present law see KRS 222.001 et seq.

222.033. Director of division. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 266, § 11) was repealed by Acts 1978, ch. 384, § 584, effective June 17, 1978.

222.035. Department of mental health to study alcoholism — Clinics — Treatment — Regulations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1962, ch. 106, Art. XII, § 1; 1968, ch. 92, § 2) was repealed by Acts 1972, ch. 266, § 14.

222.037. Pilot projects for services to prevent smoking and substance abuse during pregnancy — Funding. [Repealed]

History. Enact. Acts 1992, ch. 442, § 5, effective July 14, 1992; 1998, ch. 426, § 500, effective July 15, 1998; 2000, ch. 536, § 29, effective July 14, 2000; 2005, ch. 99, § 559, effective June 20, 2005; repealed by 2018 ch. 61, § 3, effective April 2, 2018.

222.040. Powers of commission; contracts not to constitute claim against Commonwealth; employment of medical, psychiatric, psychological, and secretarial assistance. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1956, ch. 74, § 4, effective May 18, 1956) was repealed by Acts 1962, ch. 106, Art. XII, § 3.

222.050. Commission empowered to accept gifts, bequests and contributions; money held in trust and agency fund. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1956, ch. 74, § 5, effective May 18, 1956) was repealed by Acts 1962, ch. 106, Art. XII, § 3.

222.060. Rules and regulations; fees. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1956, ch. 74, § 6) was repealed by Acts 1962, ch. 106, Art. XII, § 3.

222.070. Departments, agencies, commissions to furnish services, facilities, assistance to commissions without cost. [Repealed.]

Compiler’s Notes.

This section (Enact. Act 1956, ch. 74, § 7, effective May 18, 1956) was repealed by Acts 1962, ch. 106, Art. XII, § 3.

222.105. Purpose. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 165, § 1) was repealed by Acts 1972, ch. 266, § 14.

222.110. Definitions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 165, § 2; 1970, ch. 125, § 2) was repealed by Acts 1972, ch. 266, § 14.

222.120. Jurisdiction of proceedings involving alcoholics. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 165, § 3) was repealed by Acts 1970, ch. 125, § 4.

222.130. Petition for commitment. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 165, § 4) was repealed by Acts 1970, ch. 125, § 4.

222.140. Service of process. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 165, § 5) was repealed by Acts 1970, ch. 125, § 4.

222.150. Hearing — Commitment. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 165, § 6; 1960, ch. 131, § 1) was repealed by Acts 1970, ch. 125, § 4.

222.160. Conditions of commitment. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 165, § 7; 1960, ch. 131, § 2) was repealed by Acts 1970, ch. 125, § 4.

222.170. Transportation to institution. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 165, § 8; 1960, ch. 131, § 3) was repealed by Acts 1970, ch. 125, § 4.

222.180. Petition for commitment by alcoholic. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 165, § 9; 1962, ch. 215) was repealed by Acts 1970, ch. 125, § 4.

222.190. Support of patient. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 165, § 10) was repealed by Acts 1970, ch. 125, § 4.

222.195. Rights of patient — Confidential nature of records. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1958, ch. 165, § 11) was repealed by Acts 1970, ch. 125, § 4.

222.200. Procedure for involuntary hospitalization — Guarantee of rights — Records. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 125, § 1) was repealed by Acts 1972, ch. 266, § 14.

222.201. Definition.

As used in KRS 222.202 to 222.204 , 222.990(3) to (5), “public place” shall have the same meaning as it does in KRS 525.010 , provided that for violations of KRS 222.202 (2) the definition shall not include any public place where a license under KRS Chapter 243 to sell distilled spirits, wine or beer by the drink has been obtained.

History. Enact. Acts 1986, ch. 336, § 1, effective July 1, 1986.

222.202. Offenses of alcohol intoxication or drinking alcoholic beverages in a public place.

  1. A person is guilty of alcohol intoxication when he appears in a public place manifestly under the influence of alcohol to the degree that he may endanger himself or other persons or property, or unreasonably annoy persons in his vicinity.
  2. A person is guilty of drinking alcoholic beverages in a public place when he drinks an alcoholic beverage in a public place, or in or upon any passenger coach, or other vehicle commonly used for the transportation of passengers, or in or about any depot, platform, or waiting room.

History. Enact. Acts 1986, ch. 336, § 2, effective July 1, 1986.

NOTES TO DECISIONS

Analysis

1.Grounds for Further Investigation.

Where officers approached an automobile parked on the wrong side of the road, its occupants apparently arguing, whereupon defendant was seen with what appeared to be an open beer can in plain view between his legs, the officer was justified, based on these facts, in requesting defendant to exit the car; not only did the time, place, and the parties’ conduct indicate to the officers that criminal activity was afoot but defendant appeared to be committing a misdemeanor offense in the officers’ presence — KRS 222.202 prohibits the consumption of alcoholic beverages in a public place. Docksteader v. Commonwealth, 802 S.W.2d 149, 1991 Ky. App. LEXIS 4 (Ky. Ct. App. 1991).

2.Liability.

County was not held liable in a civil rights action which arose when an intoxicated arrestee was struck by an automobile after being released; the policy to release intoxicated persons was set by the Kentucky General Assembly and the Kentucky Supreme Court. Hill v. Franklin County Kentucky, 757 F. Supp. 29, 1991 U.S. Dist. LEXIS 2291 (E.D. Ky. 1991 ), aff'd, 948 F.2d 1289, 1991 U.S. App. LEXIS 33477 (6th Cir. Ky. 1991 ).

Exclusions in a group insurance plan for injuries resulting from participation in a crime or from “legal (alcohol) intoxication as defined by Kentucky law” did not apply to the appellee, injured while drag racing with blood alcohol level at .21% because, according to the insured’s definitions of the ambiguous contract terms, the Kentucky Penal Code defines drag racing as a traffic offense, not a crime (defined as a misdemeanor or felony) and because under the only statutory provision limited to alcohol intoxication, legal intoxication requires having been adjudicated guilty. KRS 501.010 is not applicable because it includes other drugs, whereas the insurance contract made a distinction between alcohol and other drugs; KRS 222.005 did not apply because it was enacted after the accident. Healthwise of Kentucky v. Anglin, 956 S.W.2d 213, 1997 Ky. LEXIS 150 ( Ky. 1997 ).

3.Lesser Included Offense.

Where defendant was convicted of operating a motor vehicle while under the influence of alcohol (DUI) under KRS 189A.010(1), he was not entitled to an instruction on the defense of intoxication because public intoxication under KRS 222.202 was not a lesser included offense of DUI since each offense required proof of at least one element that the one did not; public intoxication required intoxication to the degree that defendant or others might be endangered while DUI required operating a motor vehicle with an alcohol concentration of 0.08. Hudson v. Commonwealth, 202 S.W.3d 17, 2006 Ky. LEXIS 142 ( Ky. 2006 ).

4.Miscellaneous.

Defendant’s motion to suppress her statements given after her arrest was properly denied because there was probable cause to arrest her for alcohol intoxication in a public place as her actions inside the vehicle had public consequences by interfering with a valid traffic stop on a highway. Grimes v. Commonwealth, 2013 Ky. App. LEXIS 83 (Ky. Ct. App. June 7, 2013), review denied, ordered not published, 2014 Ky. LEXIS 286 (Ky. June 11, 2014).

Notes to Unpublished Decisions

1.Miscellaneous.

Unpublished decision: Since the decedent died as a result of a fall at home, neither of the intoxication definitions under KRS 189A.010(1)(a), 222.202(1), applied to deny accidental death benefits, and since plaintiff family had raised a number of reliability problems as to the toxicology report that was conducted, and defendant insurer ignored those issues and its own reviewing doctor suggested a toxicology expert’s opinion would help, but none was sought, thus, suggesting the claims denial process was not reasonable under 29 U.S.C.S. § 1133, denial of benefits was an abuse of discretion. Loan v. Prudential Ins. Co. of America, 370 Fed. Appx. 592, 2010 FED App. 0171N, 2010 U.S. App. LEXIS 5708 (6th Cir. Ky. 2010 ).

Unpublished decision: Under the implied consent law, the circuit court erred by holding an arresting officer had the option as to which test may be given in a DUI case—a blood test or a breathalyzer. The Court of Appeals of Kentucky held that the natural metabolization of alcohol in the bloodstream did not present a per se exigency that justified an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in drunk-driving cases. Duncan v. Commonwealth, 2013 Ky. App. Unpub. LEXIS 995 (Ky. Ct. App. July 19, 2013), rev'd, 483 S.W.3d 353, 2015 Ky. LEXIS 1614 ( Ky. 2015 ).

Unpublished decision: Officer was properly denied summary judgment based on qualified immunity as to an unlawful arrest claim because it was objectively unreasonable for an officer to believe the officer had probable cause to arrest the arrestee for alcohol intoxication under KRS 222.202(1) based on seeing the arrestee crouching down in bar parking lot after allegedly drinking two beers. Haley v. Elsmere Police Dep't, 452 Fed. Appx. 623, 2011 FED App. 0849N, 2011 U.S. App. LEXIS 25040 (6th Cir. Ky. 2011 ).

Opinions of Attorney General.

A dormitory room on a state university campus is not a “public place” within the definition found in subdivision (3) of KRS 525.010 ; consequently, a person of legal drinking age, twenty-one (21) years or older, cannot be held criminally liable under this section for drinking alcoholic beverages or being alcohol intoxicated in his or her dormitory room in a residence hall situated on a state university campus. OAG 87-11 .

There is no language in this section which clearly indicates that a paramount state concern will not tolerate further or additional local action, and therefore a proposed ordinance banning possession of alcohol in city parks is probably not precluded by preemption. OAG 90-76 .

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part. 2 Riot, Disorderly Conduct and Related Offenses, §§ 8.38A — 8.39B.

222.203. Arrest — Citation — Jail — Bail — Pretrial release.

  1. A peace officer may make an arrest for a violation of KRS 222.202 .
  2. Any peace officer who arrests a person for violation of KRS 222.202 shall take him to jail. A peace officer may issue a citation and may take the person to a facility authorized by county or city ordinance agreeing to care for the person. If the person is jailed, at the jail it shall be determined if the person has committed a previous offense under KRS 222.202 .
  3. A citation shall be issued to such person showing thereon the date of such person’s appearance in court and whether the offense is prepayable or not.
  4. Unless it has been determined that the defendant has had two (2) prior convictions for violation of KRS 222.202 within the previous twelve (12) months, the citation shall be marked as prepayable.
  5. If it is determined that this is a third or subsequent offense, then the provisions of KRS Chapter 431 with regard to bail and pretrial release shall apply.

History. Enact. Acts 1986, ch. 336, § 4, effective July 1, 1986; 1990, ch. 229, § 1, effective July 13, 1990.

NOTES TO DECISIONS

1.Liability.

County was not held liable in a civil rights action which arose when an intoxicated arrestee was struck by an automobile after being released; the policy to release intoxicated persons was set by the Kentucky General Assembly and the Kentucky Supreme Court. Hill v. Franklin County Kentucky, 757 F. Supp. 29, 1991 U.S. Dist. LEXIS 2291 (E.D. Ky. 1991 ), aff'd, 948 F.2d 1289, 1991 U.S. App. LEXIS 33477 (6th Cir. Ky. 1991 ).

222.204. Conditions of bail — Liability of facility releasing defendant.

  1. A person who has been arrested and placed in jail prior to trial for violation of KRS 222.202 and has not had two (2) prior convictions in the previous twelve (12) months for violation of KRS 222.202 shall be released as set forth by the Supreme Court Rule of Criminal Procedure uniform schedule of bail:
    1. To an adult who is willing to accept responsibility for the defendant through a signature verification on a form determined by the Administrative Office of the Courts;
    2. If he pays the requisite amount of bail on a bail schedule issued by the court;
    3. At such time as he is able to safely care for himself but in no event shall he be detained for more than eight (8) hours following his arrest;
    4. If he is ordered released by a court of competent jurisdiction; or
    5. Unless such person’s release is precluded by other provisions of law.
  2. The jail or facility authorized by county or city ordinance agreeing to care for the person releasing the defendant shall be considered as acting in good faith and shall not be liable for subsequent acts of the defendant upon release.

History. Enact. Acts 1986, ch. 336, § 5, effective July 1, 1986; 1990, ch. 229, § 2, effective July 13, 1990.

NOTES TO DECISIONS

1.Liability.

County was not held liable in a civil rights action which arose when an intoxicated arrestee was struck by an automobile after being released; the policy to release intoxicated persons was set by the Kentucky General Assembly and the Kentucky Supreme Court. Hill v. Franklin County Kentucky, 757 F. Supp. 29, 1991 U.S. Dist. LEXIS 2291 (E.D. Ky. 1991 ), aff'd, 948 F.2d 1289, 1991 U.S. App. LEXIS 33477 (6th Cir. Ky. 1991 ).

222.210. Cabinet’s functions as to alcoholism. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 266, § 4; 1992, ch. 211, § 81, effective July 14, 1992) was repealed by Acts 1994, ch. 334, § 19, effective July 15, 1994. For present law see KRS 222.211 .

222.211. Cabinet’s functions as to nicotine dependence and substance use disorder — Authority for administrative regulations — Required services.

  1. The cabinet shall, in conjunction with the Office of Drug Control Policy and KY-ASAP and in furtherance of the strategic plan developed in KRS 15A.342 , coordinate matters affecting nicotine dependence and substance use disorder in the Commonwealth and shall assure that there is the provision of prevention, intervention, and treatment services for individuals under age eighteen (18) years and adults to address the problems of nicotine dependence and substance use disorder within individuals, families, and communities; that the coordination of these matters shall be done in cooperation with public and private agencies, business, and industry; and that technical assistance, training, and consultation services shall be provided within budgetary limitations when required. The cabinet may promulgate administrative regulations under KRS Chapter 13A to carry out its powers and duties under this chapter. The cabinet shall utilize community mental health centers and existing facilities and services within the private sector when possible. The cabinet shall be responsible for assuring that the following services are available:
    1. Primary prevention services directed to the general population and identified target groups for the purposes of avoiding the onset of nicotine dependence and substance use disorder related problems and enhancing the general level of health of the target groups. The purpose of the services shall be to provide individuals with the information and skills necessary to make healthy decisions regarding the use or nonuse of tobacco and nicotine products, alcohol, and other drugs as well as to influence environmental factors, such as social policies and norms which will support healthy lifestyle;
    2. Intervention services for the purpose of identifying, motivating, and referring individuals in need of nicotine dependence and substance use disorder education or treatment services. Services may be provided in settings such as industry and business, schools, health, and social service agencies;
    3. Withdrawal management services on a twenty-four (24) hour basis in or near population centers which meet the immediate medical and physical needs of persons intoxicated from the use of alcohol or drugs, or both, including necessary diagnostic and referral services. The services shall be provided in either a hospital or a licensed substance use disorder program;
    4. Substance use disorder treatment services offered on an inpatient or outpatient basis for the purposes of treating an individual’s substance use disorder. The services shall be provided in a licensed substance use disorder program;
    5. Therapeutic services to family members and significant others of individuals with a substance use disorder for the purpose of reducing or eliminating dysfunctional behavior that may occur within individuals who are emotionally, socially, and sometimes physically dependent on an individual with a substance use disorder. The services shall be offered primarily on an outpatient basis;
    6. Inpatient psychiatric services for those individuals with a substance use disorder whose diagnosis reflects both serious mental illness as well as a substance use disorder;
    7. Training programs for personnel working in the field of prevention, intervention, and treatment of nicotine dependence and substance use disorders; and
    8. Driving under the influence services to include assessment, education, and treatment for persons convicted of operating a motor vehicle, while under the influence of alcohol or other substance which may impair driving ability, pursuant to KRS Chapter 189A.
  2. The cabinet shall comply with all policy recommendations of the Office of Drug Control Policy and KY-ASAP, and shall honor requests for information from the Office of Drug Control Policy created under KRS 15A.020 .

History. Enact. Acts 1994, ch. 334, § 2, effective July 15, 1994; 2000, ch. 536, § 30, effective July 14, 2000; 2007, ch. 85, § 256, effective June 26, 2007; 2019 ch. 128, § 11, effective June 27, 2019.

222.212. Continuing effectiveness of administrative regulations in existence on July 15, 1994. [Repealed]

History. Enact. Acts 1994, ch. 334, § 10, effective July 15, 1994; 1998, ch. 426, § 502, effective July 15, 1998; 2005, ch. 99, § 560, effective June 20, 2005; repealed by 2018 ch. 61, § 3, effective April 2, 2018.

222.215. Purpose — Administrative regulations to implement employer-facilitated substance use disorder treatment program — Duties of cabinet and Office of Drug Control Policy — Eligibility to participate in program — Employer’s permitted activities — Effect of employer’s compliance with program requirements — No private right of action granted — Affirmative defense.

  1. For the purposes of this section only:
    1. “Employee” means a person who has failed a drug screen related to employment; and
    2. “Employer” means an employer who elects to employ a person who has failed a drug screen related to employment.
  2. The purpose of this section is to foster economic opportunities for individuals with histories of substance use disorder and to encourage employer participation in substance use disorder treatment programs.
  3. The Cabinet for Health and Family Services shall, in conjunction with the Office of Drug Control Policy, promulgate any administrative regulations necessary to implement an employer-facilitated substance use disorder treatment program for employees who have failed an employment-related drug screen. The administrative regulations, at a minimum, shall include provisions:
    1. Enumerating elements necessary in an employer’s drug policy if the employer elects to participate in an employer-facilitated substance use disorder treatment program;
    2. Mandating an initial clinical assessment of the employee by a qualified health professional and creation of a written treatment plan;
    3. Containing referral information for clinical assessments of employees, education, and treatment options;
    4. Requiring the employee provide its employer with proof of the employee’s active participation in a licensed drug education and substance use disorder treatment program and demonstrated successful compliance with the recommendations of the initial clinical assessment; and
    5. Establishing follow-up drug testing for the employee.
  4. The Cabinet for Health and Family Services in conjunction with the Office of Drug Control Policy shall:
    1. Promote voluntary participation for all employers regardless of the number of employees; and
    2. Develop and deliver resources and training for employers including the following information:
      1. The definition of substance use disorder as defined in the current edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders;
      2. Signs and symptoms of a substance use disorder;
      3. A list of licensed treatment options for substance use disorder;
      4. Information about acceptable use of treatment records covered by the federal Health Insurance Portability and Accountability Act;
      5. Information about substance use disorder treatment, return to use, and supportive work environments for treatment and recovery; and
      6. A list of qualified health professionals that an employer may use to provide onsite drug abuse prevention education and substance use disorder treatment services for employees.
  5. To participate in a treatment program the employee shall:
    1. Provide the employer with a signed consent authorizing the employer to provide and receive documentation confirming the employee’s participation and completion of substance use treatment services;
    2. Comply with the employer’s drug policy; and
    3. Comply with the administrative regulations promulgated by the Cabinet for Health and Family Services in conjunction with the Office of Drug Control Policy.
  6. To participate in the program an employer shall:
    1. Develop and distribute to persons it employs a written drug policy, procedure, or protocol including, without limit, a test or series of tests to objectively measure substances that can create substance use disorders, that is in compliance with state and federal law;
    2. Require an employee to participate in recommended drug education and licensed substance use disorder treatment services as a condition of employment;
    3. Have the right to discipline or terminate an employee who does not comply with the agreed treatment services or the employer’s drug policy;
    4. Comply with the administrative regulations promulgated by the Cabinet for Health and Family Services, and the Office of Drug Control Policy; and
    5. Secure all records and information concerning an employee’s drug test results, treatment assessments, and treatment reports in a confidential manner and shall maintain this information separately from the employee’s personnel file. The employer shall share this information:
        1. Internally only with those in the employee’s chain-of-authority who need the information to perform responsibilities related to supervision or support of the employee; and 1. a. Internally only with those in the employee’s chain-of-authority who need the information to perform responsibilities related to supervision or support of the employee; and
        2. Externally only when the employee has provided specific written authorization to disclose specific facts to specific parties for a specific purpose; or
      1. As ordered by the court.
  7. An employer may:
    1. Pay for all or part of the employee’s substance use disorder education and treatment services; and
    2. Accept a voluntary wage assignment from the employee to pay for part of the employee’s substance use disorder treatment. The wage assignment shall not reduce the employee’s remaining net compensation below the federal minimum wage during any pay period.
  8. If an employer complies with the requirements of this section:
    1. The employer shall not be liable for a civil action alleging negligent hiring, negligent retention, or negligent supervision for a negligent act by the employee as a result of the employee’s substance use disorder unless it can be shown that the employer violated subsection (6) of this section, or knew or should have known that the employee had a recurrence of his or her substance use disorder and was acting under the influence of the substance at the time of the alleged negligent act;
    2. The employer’s participation or nonparticipation in a drug education and substance use disorder treatment program shall not be admissible as evidence in an action against the employer, the employer’s agent, or the employer’s employee except that it may be admitted as evidence of the participating employer’s liability limitation, mitigation of damages, or as evidence of a participating employer’s noncompliance with subsection (6) of this section; and
    3. Referral and treatment for drug education and substance use disorder treatment by the employer shall not be sufficient to constitute compliance with this section unless the employee has complied with all other requirements of this statute and associated administrative regulations.
  9. This section shall not form the basis of any individual private right of action and subsection (8)(a) of this section shall operate as an affirmative defense for which an employer bears the burden of proving compliance. However, nothing in this section shall bar a plaintiff from commencing a cause of action for any common law claim for any injury to person or property or for wrongful death in any civil action alleging negligent hiring, negligent retention, or negligent supervision, against an employer.

HISTORY: 2020 ch. 99, § 1, effective July 15, 2020.

222.220. Administrative powers of cabinet — Annual list of facilities and services. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 266, § 5) was repealed by Acts 1994, ch. 334, § 19, effective July 15, 1994. For present law see KRS 222.221 .

222.221. Administrative powers of cabinet.

The cabinet may:

  1. Make and enter into all contracts and agreements necessary or incidental to the performance of its duties and the execution of its powers under this chapter, including but not limited to contracts with government departments, public and private agencies and facilities, physicians, and other persons rendering services to individuals with a substance use disorder. All rates shall be established in accordance with administrative regulations promulgated by the cabinet under KRS Chapter 13A. Income and resources of individuals with a substance use disorder to pay for services shall be taken into consideration to the fullest extent possible, and the cabinet shall be subrogated to any public or private third-party payments which may be due;
  2. Establish and operate facilities if adequate public and private resources are not available;
  3. Solicit and accept for use in relation to the purposes of this chapter any gift or bequest of money or property and any grant or loans of money, services, or property from the federal government, the Commonwealth or any political subdivision thereof. Any money received under this paragraph shall be deposited in the State Treasury to be kept in a separate fund which is hereby created, for expenditure by the cabinet in accordance with the conditions of the gift, bequest, loan, or grant without specific appropriations; and
  4. Promulgate administrative regulations pursuant to KRS Chapter 13A setting standards for the admission of patients to its facilities and set fees for treatment. Except as otherwise provided by law, all provisions of KRS Chapter 210 relating to charges and collection for treatment of individuals with a mental illness shall apply to fees and collection of fees for treatment of individuals with a substance use disorder.

History. Enact. Acts 1994, ch. 334, § 3, effective July 15, 1994; 2019 ch. 128, § 12, effective June 27, 2019.

222.230. Licensing of treatment facilities. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 266, § 6) was repealed by Acts 1994, ch. 334, § 19, effective July 15, 1994. For present law see KRS 222.231 .

222.231. Licensing of treatment programs — Administrative regulations regarding standards — Revocation or suspension — Emergency order — Inspection by cabinet.

  1. The cabinet shall issue for a term of one (1) year, and may renew for like terms, a license, subject to revocation by it for cause, to any persons, other than a substance use disorder program that has been issued a license by the cabinet entitled “Chemical Dependency Treatment Services” pursuant to KRS 216B.042 or a department, agency, or institution of the federal government, deemed by it to be responsible and suitable to establish and maintain a program and to meet applicable licensure standards and requirements.
  2. The cabinet shall promulgate administrative regulations pursuant to KRS Chapter 13A establishing requirements and standards for licensing agencies and approving programs. The requirements and standards shall include:
    1. The health and safety standards to be met by a facility housing a program;
    2. Patient care standards and minimum operating, training, and maintenance of patient records standards;
    3. Licensing fees, application, renewal and revocation procedures, and the procedures for evaluation of the substance use disorder programs; and
    4. Classification of substance use disorder programs according to type, range of services, and level of care provided.
  3. The cabinet may establish different requirements and standards for different kinds of programs, and may impose stricter requirements and standards in contracts with agencies made pursuant to KRS 222.221 .
  4. Each agency shall be individually licensed or approved.
  5. Each agency shall file with the cabinet from time to time, the data, statistics, schedules, or information the cabinet may reasonably require for the purposes of this section.
    1. The cabinet shall have authority to deny, revoke, or modify a license in any case in which it finds that there has been a substantial failure to comply with the provisions of this chapter or the administrative regulations promulgated thereunder. The denial, revocation, or modification shall be effected by providing to the applicant or licensee, by certified mail or other method of delivery, which may include electronic service, a notice setting forth the particular reasons for the action. The denial, revocation, or modification shall become final and conclusive thirty (30) days after notice is given, unless the applicant or licensee, within this thirty (30) day period, files a request in writing for a hearing before the cabinet. (6) (a) The cabinet shall have authority to deny, revoke, or modify a license in any case in which it finds that there has been a substantial failure to comply with the provisions of this chapter or the administrative regulations promulgated thereunder. The denial, revocation, or modification shall be effected by providing to the applicant or licensee, by certified mail or other method of delivery, which may include electronic service, a notice setting forth the particular reasons for the action. The denial, revocation, or modification shall become final and conclusive thirty (30) days after notice is given, unless the applicant or licensee, within this thirty (30) day period, files a request in writing for a hearing before the cabinet.
    2. If the cabinet has probable cause to believe that there is an immediate threat to public health, safety, or welfare, the cabinet may issue an emergency order to suspend the license. The emergency order to suspend the license shall be provided to the licensee, by certified mail or other method delivery, which may include electronic service, a notice setting forth the particular reasons for the action.
  6. Any person required to comply with an emergency order issued under subsection (6) of this section may request an emergency hearing within five (5) calendar days of receipt of the notice to determine the propriety of the order. The cabinet shall conduct an emergency hearing within ten (10) working days of the request for a hearing. Within five (5) working days of completion of the hearing, the cabinet’s hearing officer shall render a written decision affirming, modifying, or revoking the emergency order. The emergency order shall be affirmed if there is substantial evidence of a violation of law that constitutes an immediate danger to public health, safety, or welfare. The decision rendered by the hearing officer shall be a final order of the cabinet on the matter, and any party aggrieved by the decision may appeal to the Franklin Circuit Court.
  7. If the cabinet issues an emergency order, the cabinet shall take action to revoke the facility’s license if:
    1. The facility fails to submit a written request for an emergency hearing within five (5) calendar days of receipt of the notice; or
    2. The decision rendered under subsection (7) of this section affirms that there is substantial evidence of an immediate danger to public health, safety, or welfare.
    1. The cabinet, after holding a hearing conducted by a hearing officer appointed by the secretary and conducted in accordance with KRS Chapter 13B, may refuse to grant, suspend, revoke, limit, or restrict the applicability of or refuse to renew any agency license or approval of programs for any failure to meet the requirements of its administrative regulations or standards concerning a licensed agency and its program. (9) (a) The cabinet, after holding a hearing conducted by a hearing officer appointed by the secretary and conducted in accordance with KRS Chapter 13B, may refuse to grant, suspend, revoke, limit, or restrict the applicability of or refuse to renew any agency license or approval of programs for any failure to meet the requirements of its administrative regulations or standards concerning a licensed agency and its program.
    2. Within five (5) working days of completion of a hearing on an emergency suspension or within thirty (30) calendar days from the conclusion of a hearing on the denial, revocation or modification of a license, the findings and recommendations of the hearing officer shall be transmitted to the cabinet, with a synopsis of the evidence contained in the record and a statement of the basis of the hearing officer’s findings.
    3. A petition for judicial review shall be made to the Franklin Circuit Court in accordance with KRS Chapter 13B.
  8. No person, excepting a substance use disorder program that has been issued a license by the cabinet entitled “Chemical Dependency Treatment Services” pursuant to KRS 216B.042 or a department, agency, or institution of the federal government, shall operate a program without a license pursuant to this section.
  9. Each program operated by a licensed agency shall be subject to visitation and inspection by the cabinet and the cabinet shall inspect each agency prior to granting a license. The cabinet shall inspect each nonaccredited agency at least annually thereafter. If an agency is fully accredited by the Joint Commission, Commission on Accreditation of Rehabilitation Facilities, Council on Accreditation, or other nationally recognized accrediting organization with comparable standards, the cabinet shall inspect the agency at least every two (2) years. The cabinet may examine the books and accounts of any program if it deems the examination necessary for the purposes of this section.
  10. The director may require agencies that contract with the Commonwealth pursuant to KRS 222.221 to admit as an inpatient or outpatient any person to be afforded treatment pursuant to this chapter, subject to service and bed availability and medical necessity.
  11. The cabinet shall promulgate administrative regulations pursuant to KRS Chapter 13A governing the extent to which programs may be required to treat any person on an inpatient or outpatient basis pursuant to this chapter, except that no licensed hospital with an emergency service shall refuse any person suffering from acute alcohol or other drug intoxication or severe withdrawal syndrome from emergency medical care.
  12. All narcotic treatment programs shall be licensed under this section prior to operation. The cabinet shall promulgate administrative regulations pursuant to KRS Chapter 13A to establish additional standards of operation for narcotic treatment programs. The administrative regulations shall include minimum requirements in the following areas:
    1. Compliance with relevant local ordinances and zoning requirements;
    2. Submission of a plan of operation;
    3. Criminal records checks for employees of the narcotic treatment program;
    4. Conditions under which clients are permitted to take home doses of medications;
    5. Drug screening requirements;
    6. Quality assurance procedures;
    7. Program director requirements;
    8. Qualifications for the medical director for a narcotic treatment program, who at a minimum shall:
      1. Be a board-eligible psychiatrist licensed to practice in Kentucky and have three (3) years’ documented experience in the provision of services to individuals with a substance use disorder; or
      2. Be a physician licensed to practice in Kentucky and be board certified as an addiction medicine specialist;
    9. Security and control of narcotics and medications;
    10. Program admissions standards;
    11. Treatment protocols;
    12. Treatment compliance requirements for program clients;
    13. Rights of clients; and
    14. Monitoring of narcotic treatment programs by the cabinet.

History. Enact. Acts 1994, ch. 334, § 4, effective July 15, 1994; 1996, ch. 242, § 2, effective July 15, 1996; 1996, ch. 318, § 135, effective July 15, 1996; 2004, ch. 116, § 12, effective July 13, 2004; 2012, ch. 146, § 110, effective July 12, 2012; 2019 ch. 128, § 13, effective June 27, 2019; 2020 ch. 36, § 38, effective July 15, 2020.

222.232. Voluntary application for treatment. [Repealed.]

Compiler’s Notes.

This section was originally enacted by Acts 1980, ch. 254, § 3 but was repealed by Acts 1982, ch. 312, § 15, before it became effective on July 1, 1982. Section 3 of Acts 1982, ch. 312 enacted a new section identical to the repealed version to become effective July 1, 1984 which date Acts 1984, ch. 205, § 1 attempted to change to July 15, 1986 but because of a technical error the effective date became July 1, 1986. Acts 1986, ch. 336, § 12 repealed Acts 1980, ch. 254, 1982, ch. 312, and 1984, ch. 254 effective July 1, 1986. Therefore, this section never became effective and is repealed.

Legislative Research Commission Note.

Acts 1986, ch. 336, § 13 provides: “It is the intent of the General Assembly that the amendments and repealers of Acts 1980, Chapter 254 and Acts 1982, Chapter 312 not become effective and that the statutes affected thereby remain as not amended or not repealed, except as affected by this Act or by legislation other than Acts 1980, Chapter 254; Acts 1982, Chapter 312; and Acts 1984, Chapter 205, passed during 1980, 1982 and 1984.”

222.234. Alternative methods of dealing with intoxicated person. [Repealed.]

Compiler’s Notes.

This section was originally enacted by Acts 1980, ch. 254, § 4 which was repealed by Acts 1982, ch. 312, § 15 before it became effective on July 1, 1982. Section 4 of Acts 1982, ch. 312 enacted a new section identical to the repealed version to become effective July 1, 1984 which date Acts 1984, ch. 205 attempted to change to July 15, 1986 but because of a technical error in the amendment the effective date became July 1, 1986. Acts 1986, ch. 336, § 12 repealed Acts 1980, ch. 254, 1982, ch. 312 and 1984 ch. 205, effective July 1, 1986. Therefore, this section never became effective and is repealed.

Legislative Research Commission Note.

Acts 1986, ch. 336, § 13 provides: “It is the intent of the General Assembly that the amendments and repealers of Acts 1980, Chapter 254 and Acts 1982, Chapter 312 not become effective and that the statutes affected thereby remain as not amended or not repealed, except as affected by this Act or by legislation other than Acts 1980, Chapter 254; Acts 1982, Chapter 312; and Acts 1984, Chapter 205, passed during 1980, 1982 and 1984.”

222.236. Emergency treatment. [Repealed.]

Compiler’s Notes.

This section was originally enacted by Acts 1980, ch. 254, § 5 which was repealed by Acts 1982, ch. 312, § 15 before it became effective on July 1, 1982. Section 5 of Acts 1982, ch. 312 enacted a new section identical to the repealed version to become effective July 1, 1984 which date Acts 1984, ch. 205 attempted to change to July 15, 1986 but because of a technical error in the amendment the effective date became July 1, 1986. Acts 1986, ch. 336, § 12 repealed Acts 1980, ch. 254, 1982, ch. 312 and 1984, ch. 205, effective July 1, 1986. Therefore, this section never became effective and is repealed.

Legislative Research Commission Note.

Acts 1986, ch. 336, § 13 provides: “It is the intent of the General Assembly that the amendments and repealers of Acts 1980, Chapter 254 and Acts 1982, Chapter 312 not become effective and that the statutes affected thereby remain as not amended or not repealed, except as affected by this Act or by legislation other than Acts 1980, Chapter 254; Acts 1982, Chapter 312; and Acts 1984, Chapter 205, passed during 1980, 1982 and 1984.”

222.237. Emergency service units. [Repealed.]

Compiler’s Notes.

This section was originally enacted by Acts 1980, ch. 254, § 6 which was repealed by Acts 1982, ch. 312, § 15 before it became effective on July 1, 1982. Section 6 of Acts 1982, ch. 312 enacted a new section identical to the repealed version to become effective July 1, 1984 which date Acts 1984, ch. 205 attempted to change to July 15, 1986 but because of a technical error in the amendment the effective date became July 1, 1986. Acts 1986, ch. 336, § 12 repealed Acts 1980, ch. 254, 1982, ch. 312 and 1984, ch. 205, effective July 1, 1986. Therefore, this section never became effective and is repealed.

Legislative Research Commission Note.

Acts 1986, ch. 336, § 13 provides: “It is the intent of the General Assembly that the amendments and repealers of Acts 1980, Chapter 254 and Acts 1982, Chapter 312 not become effective and that the statutes affected thereby remain as not amended or not repealed, except as affected by this Act or by legislation other than Acts 1980, Chapter 254; Acts 1982, Chapter 312; and Acts 1984, Chapter 205, passed during 1980, 1982 and 1984.”

222.240. Admission to treatment facility. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 266, § 7) was repealed by Acts 1994, ch. 344, § 19, effective July 15, 1994. For present law see KRS 222.421 .

222.250. Supervision of person receiving treatment. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 266, § 8; 1974, ch. 74, Art. VI, § 107 (1), (9)) was repealed by Acts 1994, ch. 344, § 19, effective July 15, 1994.

222.260. Provisions as to juvenile patients. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 266, § 9) was repealed by Acts 1994, ch. 344, § 19, effective July 15, 1994. For present law see KRS 222.441 .

222.270. Confidential record of treatment — Patient’s rights. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 266, § 10) was repealed by Acts 1994, ch. 344, § 19, effective July 15, 1994. For present law see KRS 222.271 .

222.271. Confidential record of treatment — Rights of patient.

  1. The administrator of each program shall keep a record of the treatment afforded each substance use disorder patient, which shall be confidential in accordance with administrative regulations promulgated by the cabinet.
  2. Any patient may have a physician retained by him examine him, consult privately with his attorney, receive visitors, and send and receive communications by mail, telephone, and telegraph. The communications shall not be censored or read without consent of the patient. The right of the administrator, subject to administrative regulations of the cabinet, to prescribe reasonable rules governing visitation rights, use of the mail, and telephone and telegraph facilities shall not be limited.

History. Enact. Acts 1994, ch. 334, § 5, effective July 15, 1994; 2019 ch. 128, § 14, effective June 27, 2019.

222.280. Accessibility of records to federal agencies.

The Secretary of the United States Department of Health and Human Services shall be afforded reasonable access to any reports or records kept by the cabinet pursuant to and in accordance with the provisions of this chapter. The comptroller general of the United States or his duly authorized representatives shall have access for the purpose of audit and examination to the same reports or records.

History. Enact. Acts 1972, ch. 266, § 12; 1974, ch. 74, Art. VI, § 107(1), (9); 1994, ch. 334, § 11, effective July 15, 1994.

222.290. Areas not affected by treatment and rehabilitation law. [Repealed.]

Compiler’s Notes.

These sections (Enact. Acts 1972, ch. 266, § 1) was repealed by Acts 1994, ch. 334, § 19, effective July 15, 1994. For present law see KRS 222.003 and 222.311 .

222.300. Citation of KRS 222.210 to 222.300. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 266, § 1) was repealed by Acts 1994, ch. 344, § 19, effective July 15, 1995. For present law see KRS 222.003 and 222.311 .

222.310. Hospitals required to treat alcoholism. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 166, § 7; 1974, ch. 308, § 44; 1980, ch. 135, § 29, effective July 15, 1980) was repealed by Acts 1994, ch. 334, § 19, effective July 15, 1994. For present law see KRS 222.003 and 222.311 .

222.311. Hospitals not to deny treatment on grounds of substance use disorder — Length of treatment.

  1. No hospital shall deny treatment to a person solely because of his or her substance use disorder.
  2. Any intoxicated person admitted to a licensed substance use disorder program or a hospital licensed to provide chemical dependency treatment or detoxification services, shall receive treatment at the program or hospital for as long as the person wishes to remain, or until benefits expire, or the administrator determines that treatment will no longer benefit the person.

History. Enact. Acts 1994, ch. 334, § 7, effective July 15, 1994; 2004, ch. 116, § 13, effective July 13, 2004; 2019 ch. 128, § 15, effective June 27, 2019.

222.410. Cabinet to study drug problems — Administrative powers — Providing treatment — Fees. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 166, § 3; 1974, ch. 74, Art. VI, § 107 (1), (9); 1976, ch. 332, § 28; 1982, ch. 141, § 39, effective July 1, 1982) was repealed by Acts 1994, ch. 334, § 19, effective July 15, 1994. For present law see KRS 222.221 , 222.231 , and 222.421 .

222.420. Treatment for drug problem on request — Statistical reports. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 166, § 4; 1974, ch. 74, Arts. V, § 24(1), VI, § 107 (1), (9), (21)) was repealed by Acts 1994, ch. 334, § 19, effective July 15, 1994. For present law see KRS 222.221 , 222.231 , and 222.421 .

222.421. Treatment for substance use disorder on request — Priority access to licensed treatment services — Statistical report.

  1. Any person may request treatment from a physician or substance use disorder program licensed or approved by the cabinet to provide substance use disorder treatment services. Persons infected with HIV, hepatitis B, or hepatitis C shall have priority access to any licensed treatment services.
  2. Every substance use disorder program that provides intervention or treatment services to a person with a substance use disorder or prevention programming to any persons in the community shall, upon request of the cabinet, make a statistical report to the secretary, in a form and manner the secretary shall prescribe, of persons provided prevention, intervention, and treatment services during a specified period of time. The name or address of any person to whom prevention, intervention, or treatment services were provided shall not be reported. The secretary shall provide compilations of the statistical information to other appropriate agencies upon request.

History. Enact. Acts 1994, ch. 334, § 8, effective July 15, 1994; 1998, ch. 426, § 501, effective July 15, 1998; 2000, ch. 432, § 9, effective July 14, 2000; 2004, ch. 116, § 14, effective July 13, 2004; 2019 ch. 128, § 16, effective June 27, 2019.

Involuntary Treatment for Alcohol and Other Drug Abuse

222.430. Involuntary treatment for substance use disorder — Rights of patient.

  1. Involuntary treatment ordered for a person suffering from substance use disorder shall follow the procedures set forth in KRS 222.430 to 222.437 .
  2. Except as otherwise provided for in KRS 222.430 to 222.437 , all rights guaranteed by KRS Chapters 202A and 210 to involuntarily hospitalized mentally ill persons shall be guaranteed to a person ordered to undergo treatment for substance use disorder.

History. Enact. Acts 1972, ch. 166, § 6; 1976, ch. 332, § 29; 1982, ch. 141, § 40, effective July 1, 1982; 1994, ch. 334, § 17, effective July 15, 1994; 2004, ch. 116, § 1, effective July 13, 2004; 2019 ch. 128, § 17, effective June 27, 2019.

Compiler’s Notes.

This section was amended by § 41 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

222.431. Criteria for involuntary treatment.

No person suffering from substance use disorder shall be ordered to undergo treatment unless that person:

  1. Suffers from substance use disorder;
  2. Presents an imminent threat of danger to self, family, or others as a result of a substance use disorder, or there exists a substantial likelihood of such a threat in the near future; and
  3. Can reasonably benefit from treatment.

History. Enact. Acts 2004, ch. 116, § 2, effective July 13, 2004; 2019 ch. 128, § 18, effective June 27, 2019.

222.432. Petition for 60-day and 360-day involuntary treatment — Contents — Guarantee for costs.

  1. Proceedings for sixty (60) days or three hundred sixty (360) days of treatment for an individual suffering from substance use disorder shall be initiated by the filing of a verified petition in District Court.
  2. The petition and all subsequent court documents shall be entitled: “In the interest of (name of respondent).”
  3. The petition shall be filed by a spouse, relative, friend, or guardian of the individual concerning whom the petition is filed.
  4. The petition shall set forth:
    1. Petitioner’s relationship to the respondent;
    2. Respondent’s name, residence, and current location, if known;
    3. The name and residence of respondent’s parents, if living and if known, or respondent’s legal guardian, if any and if known;
    4. The name and residence of respondent’s husband or wife, if any and if known;
    5. The name and residence of the person having custody of the respondent, if any, or if no such person is known, the name and residence of a near relative or that the person is unknown; and
    6. Petitioner’s belief, including the factual basis therefor, that the respondent is suffering from an alcohol and other drug abuse disorder and presents a danger or threat of danger to self, family, or others if not treated for substance use disorder.

Any petition filed pursuant to this subsection shall be accompanied by a guarantee, signed by the petitioner or other person authorized under subsection (3) of this section, obligating that person to pay all costs for treatment of the respondent for substance use disorder that is ordered by the court.

History. Enact. Acts 2004, ch. 116, § 3, effective July 13, 2004; 2019 ch. 128, § 19, effective June 27, 2019.

222.433. Proceedings for involuntary treatment — Duties of court — Disposition.

  1. Upon receipt of the petition, the court shall examine the petitioner under oath as to the contents of the petition.
  2. If, after reviewing the allegations contained in the petition and examining the petitioner under oath, it appears to the court that there is probable cause to believe the respondent should be ordered to undergo treatment, then the court shall:
    1. Set a date for a hearing within fourteen (14) days to determine if there is probable cause to believe the respondent should be ordered to undergo treatment for a substance use disorder;
    2. Notify the respondent, the legal guardian, if any and if known, and the spouse, parents, or nearest relative or friend of the respondent concerning the allegations and contents of the petition and the date and purpose of the hearing; and the name, address, and telephone number of the attorney appointed to represent the respondent; and
    3. Cause the respondent to be examined no later than twenty-four (24) hours before the hearing date by two (2) qualified health professionals, at least one (1) of whom is a physician. The qualified health professionals shall certify their findings to the court within twenty-four (24) hours of the examinations.
  3. If, upon completion of the hearing, the court finds the respondent should be ordered to undergo treatment, then the court shall order such treatment for a period not to exceed sixty (60) consecutive days from the date of the court order or a period not to exceed three hundred sixty (360) consecutive days from the date of the court order, whatever was the period of time that was requested in the petition or otherwise agreed to at the hearing. Failure of a respondent to undergo treatment ordered pursuant to this subsection may place the respondent in contempt of court.
  4. If, at any time after the petition is filed, the court finds that there is no probable cause to continue treatment or if the petitioner withdraws the petition, then the proceedings against the respondent shall be dismissed.

History. Enact. Acts 2004, ch. 116, § 4, effective July 13, 2004; 2019 ch. 128, § 20, effective June 27, 2019.

222.434. Seventy-two-hour emergency involuntary treatment.

  1. Following an examination by a qualified health professional and a certification by that professional that the person meets the criteria specified in KRS 222.431 , the court may order the person hospitalized for a period not to exceed seventy-two (72) hours if the court finds, by clear and convincing evidence, that the respondent presents an imminent threat of danger to self, family, or others as a result of a substance use disorder.
  2. Any person who has been admitted to a hospital under subsection (1) of this section shall be released from the hospital within seventy-two (72) hours of admittance.
  3. No respondent ordered hospitalized under this section shall be held in jail pending transportation to the hospital or evaluation unless the court has previously found the respondent to be in contempt of court for either failure to undergo treatment or failure to appear at the evaluation ordered pursuant to KRS 222.433 .

History. Enact. Acts 2004, ch. 116, § 5, effective July 13, 2004; 2019 ch. 128, § 21, effective June 27, 2019.

222.435. Failure to attend examination — Summons — Transportation to hospital or psychiatric facility.

When the court is authorized to issue an order that the respondent be transported to a hospital, the court may, or if the respondent fails to attend an examination scheduled before the hearing provided for in KRS 222.433 then the court shall, issue a summons. A summons so issued shall be directed to the respondent and shall command the respondent to appear at a time and place therein specified. If a respondent who has been summoned fails to appear at the hospital or the examination, then the court may order the sheriff or other peace officer to transport the respondent to a hospital or psychiatric facility designated by the cabinet for treatment under KRS 210.485 . The sheriff or other peace officer may, upon agreement of a person authorized by the peace officer, authorize the cabinet, a private agency on contract with the cabinet, or an ambulance service designated by the cabinet to transport the respondent to the hospital. The transportation costs of the sheriff, other peace officer, ambulance service, or other private agency on contract with the cabinet shall be included in the costs of treatment for a substance use disorder to be paid by the petitioner.

History. Enact. Acts 2004, ch. 116, § 6, effective July 13, 2004; 2019 ch. 128, § 22, effective June 27, 2019.

222.436. Application of KRS Chapter 202A.

The definitions in KRS 202A.011 and the procedures in KRS Chapter 202A apply to KRS 222.430 to 222.437 except where terms or procedures used therein are defined in KRS 222.005 or are otherwise provided for in KRS 222.430 to 222.437 , respectively.

History. Enact. Acts 2004, ch. 116, § 7, effective July 13, 2004.

222.437. Short title for KRS 222.430 to 222.437.

KRS 222.430 to 222.437 may be cited as the Matthew Casey Wethington Act for Substance Abuse Intervention.

History. Enact. Acts 2004, ch. 116, § 8, effective July 13, 2004.

222.440. Capacity of juvenile to consent to treatment — Petition to district court by minor hospitalized or treated involuntarily. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 166, § 8; 1988, ch. 317, § 1, effective July 15, 1988) was repealed by Acts 1994, ch. 334, § 19, effective July 15, 1994. For present law see KRS 222.441 .

222.441. Capacity of minor to consent to treatment — Petition to District Court by minor hospitalized or treated involuntarily.

  1. Notwithstanding any other law, a minor who suffers from a substance use disorder or emotional disturbance from the effects of a family member or legal guardian’s substance use disorder or the parent or guardian of the minor may give consent to the furnishing of medical care or counseling related to the assessment or treatment of the conditions. The consent of the minor shall be valid as if the minor had achieved majority. No person or facility shall incur liability by reason of having made a diagnostic examination or rendered treatment as provided in this section, but the immunity shall not apply to any negligent acts or omissions.
  2. A minor hospitalized or treated without the minor’s consent but with the consent of the parent or guardian may petition the District Court to determine whether the minor is suffering from a substance use disorder and whether the treatment is necessary for the health and welfare of the minor.

History. Enact. Acts 1994, ch. 334, § 9, effective July 15, 1994; 2019 ch. 128, § 23, effective June 27, 2019.

222.460. Licensed treatment services to participate in cabinet’s evaluation or client-outcome effectiveness study.

  1. As a requirement to receive state or federal funds, including Medicaid, a treatment center or program licensed as a chemical dependency treatment service pursuant to KRS 216B.042 or this chapter shall participate in an evaluation or client-outcome effectiveness study conducted by the cabinet.
  2. Information for the evaluation shall include but is not limited to the following:
    1. The total number of substance use disorder clients admitted to treatment;
    2. The total number of referrals from the District and Circuit Courts and the Department of Corrections;
    3. The client’s change in substance use patterns from admission to discharge from treatment;
    4. The client’s change in employment status from admission to discharge from treatment; and
    5. The client’s change in involvement with the criminal justice system from admission to discharge from treatment.
  3. All information collected pursuant to this chapter shall be held confidential with respect to the identity of individual clients. Access to information that identifies individual clients may be provided to qualified persons or organizations with a valid scientific interest, as determined by the secretary, who are engaged in research related to patterns of drug and alcohol use, the effectiveness of treatment, or similar studies and who agree in writing to maintain confidentiality.

History. Enact. Acts 1990, ch. 254, § 1, effective July 13, 1990; 1992, ch. 211, § 82, effective July 14, 1992; 1994, ch. 334, § 12, effective July 15, 1994; 1998, ch. 426, § 503, effective July 15, 1998; 2004, ch. 116, § 15, effective July 13, 2004; 2019 ch. 128, § 24, effective June 27, 2019.

222.462. Cabinet to review and improve substance use disorder treatment and recovery services and programs operating within the Commonwealth — Administrative regulations.

  1. The Cabinet for Health and Family Services shall conduct a comprehensive review of all current state licensure and quality standards that apply to substance use disorder treatment and recovery services and programs that operate within the Commonwealth of Kentucky.
  2. Based on the review conducted pursuant to subsection (1) of this section, the cabinet shall develop enhanced licensure and quality standards for substance use disorder treatment and recovery that include but are not limited to residential, outpatient, and medication-assisted treatment (MAT) services. The enhanced standards shall include, at a minimum, the following:
    1. A set of comprehensive quality standards and criteria for substance use disorder treatment and recovery services and programs that are based on nationally recognized and evidence-based standards;
    2. Standardized, nationally recognized outcome measures for substance use disorder treatment programs and a process for collection and review of results; and
    3. Conditions necessary for reimbursement with state funds for the provision of substance use disorder treatment and recovery services and programs.
  3. By January 1, 2019, the cabinet shall promulgate administrative regulations necessary for implementing the enhanced licensure and quality standards, including application fees for licenses, not to exceed the direct and actual cost incurred by the cabinet to perform the licensure for substance use disorder treatment and recovery services and programs.
  4. The provisions of this section are subject to available funding.

HISTORY: 2018 ch. 61, § 1, effective April 2, 2018.

222.465. Client-outcome study — Follow-up reports.

  1. All inpatient, residential, or outpatient treatment centers or programs licensed as a chemical dependency treatment service pursuant to KRS 216B.042 or this chapter and receiving state or federal funds, shall participate in a client-outcome study conducted by the cabinet. This scientifically conducted client-oriented evaluation study shall measure the relative change in a client as a result of the client’s participation in specific treatment modalities. The client-outcome study shall measure the client’s length of stay in each treatment modality and the client’s change in behavior one (1) year after being discharged from a treatment program.
  2. Follow-up reports on a scientifically-based sample of clients discharged from chemical dependency treatment programs shall be gathered by an independent organization qualified to conduct outcome evaluation and submitted to the cabinet in a format to be determined by administrative regulations of the cabinet. The follow-up report shall measure the client’s current substance use patterns, employment status, educational status, and involvement in the criminal justice system. Follow-up reports may be conducted through telephone or mail surveys of clients and the cost of reports shall be borne by the cabinet.
  3. Clients who refuse to participate in the follow-up report or who cannot reasonably be located shall be noted in the follow-up report.

History. Enact. Acts 1990, ch. 254, § 2, effective July 13, 1990; 1994, ch. 334, § 13, effective July 15, 1994; 2019 ch. 128, § 25, effective June 27, 2019.

222.470. Conditions requiring exclusion of consideration for state funds.

Chemical dependency treatment programs shall not be considered for receipt of state funds if they:

  1. Do not submit reports as required by KRS 222.460 ; or
  2. Do not cooperate in the submission of information that would allow the cabinet to conduct a scientific random sample survey of client-outcome indicators as required by KRS 222.465 .

History. Enact. Acts 1990, ch. 254, § 3, effective July 13, 1990; 1994, ch. 334, § 14, effective July 15, 1994.

222.475. Report to Governor and General Assembly from cabinet.

The cabinet shall annually submit to the Governor and the General Assembly a treatment-center evaluation report. The report shall include, but not be limited to, the following information:

  1. An inventory of all licensed chemical dependency treatment services in Kentucky;
  2. The information submitted by each treatment center or program pursuant to KRS 222.460 and 222.465 ; and
  3. The employment, educational, and criminal history of clients in each program that received state or federal funds.

History. Enact. Acts 1990, ch. 254, § 4, effective July 13, 1990; 1998, ch. 426, § 504, effective July 15, 1998; 2004, ch. 116, § 10, effective July 13, 2004.

Penalties

222.990. Penalties.

  1. Any licensee or other person operating a private facility who fails to furnish any such data, statistics, schedules or information as required, or who files fraudulent returns thereof shall be subject to a fine of not more than five hundred dollars ($500).
  2. Whoever knowingly establishes or maintains a private facility without a license granted pursuant to this section shall, for a first offense, be subject to a fine of not more than five hundred dollars ($500) and for each subsequent offense by a fine of not more than one thousand dollars ($1,000) or by imprisonment for not more than two (2) years, or both.
  3. A person guilty of alcohol intoxication, or drinking alcoholic beverages in a public place shall, for a first or second offense be fined not less than twenty-five dollars ($25).
  4. A person guilty of alcohol intoxication, or drinking alcoholic beverages in a public place, shall for a third or subsequent offense within a twelve (12) month period be fined not less than twenty-five dollars ($25) nor more than one hundred dollars ($100), or be imprisoned in the county jail for not less than five (5) nor more than ninety (90) days, or both. Subsequent offenses not within the twelve (12) month proscription of this section shall be dealt with under subsection (3) of this section.
  5. In addition to any other penalty prescribed by law for violation of subsections (1) and (2) of KRS 222.202 , the court may sentence the person to an alcohol or substance abuse treatment or education program subject to the following terms and conditions for a third or subsequent offender:
    1. The sentence shall be for a period of up to six (6) months and the program shall provide an assessment to the court of the defendant’s alcohol or other substance abuse problems.
    2. Each defendant shall pay the cost of the treatment or education program up to his ability to pay but no more than the actual cost of the treatment.
    3. A defendant may upon written recommendation to the court by the administrator of the program, be released by the court prior to the expiration of the six (6) month period.
    4. Failure to complete the treatment program or to pay the amount specified by the treatment program shall constitute contempt of court and the court may, in addition to any other remedy for contempt, reinstitute all penalties which were previously imposed but suspended or delayed pending the completion of treatment or education program.

History. Enact. Acts 1972, ch. 266, § 6, paras. (5), (7); 1986, ch. 336, §§ 2, 3, effective July 1, 1986.

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part. 2 Riot, Disorderly Conduct and Related Offenses, §§ 8.38A — 8.39B.

CHAPTER 223 Sanitarians, Water Plant Operators, And Water Well Construction Practices

Sanitarians

223.010. Definitions for KRS 223.020 to 223.080.

As used in KRS 223.020 to 223.080 , unless the context requires otherwise:

  1. “Cabinet” means the Cabinet for Health and Family Services;
  2. “Registered environmental health specialist or sanitarian” means a person trained in the field of environmental health who has qualified for registration in accordance with the provisions of this chapter;
  3. “Secretary” means the secretary of the Cabinet for Health and Family Services; and
  4. “Environmental health activity” means those program areas administered by the state and local health departments including, but not limited to, food protection, control of insect and rodents, radiation, private water supplies, on-site waste, and other environmental program areas. The term does not cover programs not administered by the cabinet.

History. Enact. Acts 1960, ch. 102, § 1; 1974, ch. 74, Art. VI, § 88; 1976, ch. 299, § 43; 1992, ch. 309, § 2, effective July 14, 1992; 1998, ch. 426, § 505, effective July 15, 1998; 2005, ch. 99, § 561, effective June 20, 2005.

223.020. Registered environmental health specialist or sanitarian examining committee.

  1. The secretary shall appoint a registered environmental health specialist or a sanitarian examining committee consisting of five (5) members. The secretary of the Cabinet for Health and Family Services shall be an ex officio member. The other four (4) members shall be environmental health specialists or sanitarians who are registered under this chapter. The appointed members shall serve for terms of two (2) years and until their successors are appointed and qualify, except that when initial appointments are made under the provisions of this chapter, two (2) members’ terms shall be for only one (1) year. Thereafter all appointments shall be for a period of two (2) years.
  2. The examining committee shall conduct, or cause to be conducted, examinations of applicants pursuant to minimum standards and qualifications established by the secretary. The examining committee shall act in an advisory capacity to the secretary in establishing such minimum standards and qualifications.

History. Enact. Acts 1960, ch. 102, § 2; 1974, ch. 74, Art. VI, §§ 89, 107(1); 1992, ch. 309, § 3, effective July 14, 1992; 1998, ch. 426, § 506, effective July 15, 1998; 2005, ch. 99, § 562, effective June 20, 2005.

Research References and Practice Aids

Cross-References.

Sanitation districts, KRS 220.010 et seq.

223.030. Qualifications for registration — Inactive status for previous registrants.

  1. An applicant for registration shall file with the cabinet a written application for registration and submit evidence that the applicant:
    1. Has completed at least an approved four (4) year high school or the equivalent; and
    2. Has completed a four (4) year degree from a college or university, with a minor or twenty-four (24) semester hours in environmental health, biological science, or physical science.
  2. An applicant shall be required to pass a written examination in those subjects that the cabinet prescribes. Written examinations may be supplemented by an oral examination. Upon successfully passing these examinations, the applicant shall be issued a registration as an environmental health specialist or sanitarian.
  3. Those persons previously registered by the cabinet and not engaged in environmental health practice in the Commonwealth of Kentucky, but desiring to maintain the privilege to use the designation of environmental health specialist or “E.H.S.” and sanitarian or “R.S.” may apply and be granted inactive status by the cabinet in accordance with administrative regulations of the cabinet. Inactive status shall be renewed at least every two (2) years, and those persons granted inactive status shall not be governed by continuing education provisions contained in this chapter. A registered environmental health specialist or sanitarian on inactive status may petition the cabinet for renewal of registration. In that case the registrant shall meet the requirements of this chapter before being reclassified to active status.

History. Enact. Acts 1960, ch. 102, § 3; 1974, ch. 74, Art. VI, § 107(1); 1992, ch. 309, § 4, effective July 14, 1992.

223.040. Registration without examination for certain persons — Limitation — Registration requirement for certain employment — Probationary employment.

  1. Persons on permanent status actively engaged in environmental health work for a recognized and approved public health agency in this state on July 1, 1993, shall, upon furnishing adequate proof thereof to the cabinet, be entitled to be registered as an environmental health specialist or sanitarian without examination.
  2. A request for a registration without examination must be submitted to the cabinet by October 31, 1993. After July 1, 1993, only persons registered as an environmental health specialist or sanitarian, unless otherwise exempted, shall be employed by the cabinet or local health agencies to perform environmental health specialist activities; the cabinet shall by administrative regulation provide for probationary employment not to exceed twelve (12) months for persons to qualify through examination when all other qualifications have been met.

History. Enact. Acts 1960, ch. 102, § 4; 1992, ch. 309, § 5, effective July 14, 1992.

223.050. Fees — Disposition of fees.

A fee established by administrative regulation promulgated by the cabinet pursuant to KRS Chapter 13A shall accompany the application for examination. All registration certificates issued under the provisions of this chapter shall expire on June 30 following the date of issue, unless renewed by the payment of an annual renewal fee established by administrative regulation promulgated by the cabinet pursuant to KRS Chapter 13A. All fees collected under the provisions of this chapter shall be paid into the State Treasury and credited to a trust and agency fund to be used by the cabinet in carrying out the provisions of this chapter. No part of this fund shall revert to the general fund of the Commonwealth.

History. Enact. Acts 1960, ch. 102, § 5; 1992, ch. 309, § 6, effective July 14, 1992.

223.055. Legislative findings on continuing education requirement for environmental health specialist.

  1. The General Assembly finds and declares that because of continuous introduction of new technology and changing concepts in environmental health, it is essential that an environmental health specialist undertake a program of continuing education to maintain professional competency.
  2. Effective July 1, 1993, no environmental health specialist’s registration will be renewed until the registrant has submitted proof that shows satisfactory completion, in the previous year, of a continuing education program acceptable to the cabinet. These continuing education requirements shall be determined by administrative regulation of the cabinet.
  3. The cabinet shall promulgate administrative regulations pursuant to KRS Chapter 13A to carry out the provisions of this section, including guidelines and methods for reviewing and approving continuing education.

History. Enact. Acts 1992, ch. 309, § 1, effective July 14, 1992.

223.060. Reciprocal registration agreements with other states.

The cabinet is authorized to enter into reciprocal agreements with other states having a registered environmental health specialist’s or sanitarian’s act or its equivalent, if the qualifications of that state are at least equal to the requirements of this chapter and the regulations promulgated hereunder.

History. Enact. Acts 1960, ch. 102, § 6; 1992, ch. 309, § 7, effective July 14, 1992.

223.070. Grounds for revocation of certificate — Hearings.

The cabinet shall have the power to revoke the certificate of registration of any registrant for unprofessional conduct or the practice of any fraud or deceit in obtaining registration, or any gross negligence, incompetency, or misconduct in the practice of environmental health sanitation. Administrative hearings conducted under authority of this section shall be conducted in accordance with KRS Chapter 13B.

History. Enact. Acts 1960, ch. 102, § 7; 1992, ch. 309, § 8, effective July 14, 1992; 1996, ch. 318, § 136, effective July 15, 1996.

223.080. Unregistered person not to hold himself out as registered environmental health specialist.

No person not registered under the provisions of this chapter shall hold himself out as a registered environmental health specialist nor append to his name the initials “E.H.S.” or “R.S.”.

History. Enact. Acts 1960, ch. 102, § 8; 1992, ch. 309, § 9, effective July 14, 1992.

Water Plant Operators

223.160. Operators of water treatment plant to have certificate of competency — Limited certificate of competency.

  1. It is the intent of KRS 223.160 to 223.220 and 223.991 that every operator in responsible charge of a water treatment plant or water distribution system be required to hold a valid and effective certificate of competency issued by the Energy and Environment Cabinet in a class equal to or higher than the class of the particular treatment plant or distribution system where he is currently employed in order to protect the public health. Operators other than those in responsible charge of such facilities shall also be eligible to apply for certification.
  2. An operator of a water treatment facility for a school and for a semipublic water supply shall be entitled to a limited certificate of competency for his particular facility provided he has demonstrated that he has the knowledge and experience required to operate properly the particular water treatment facility for which he is responsible. A limited certificate of competency so issued is not transferable to any other water treatment facility, nor is the period of operation under such a limited certificate eligible for consideration toward the experience requirements for a certificate of competency as provided in subsection (1) of this section.

History. Enact. Acts 1966, ch. 156, § 1; 1972 (1st Ex. Sess.), ch. 3, § 37; 1974, ch. 74, Art. VI, § 107(1), (11); 1976, ch. 299, § 44; 1984, ch. 387, § 2, effective July 13, 1984; 2010, ch. 24, § 336, effective July 15, 2010.

223.170. Certification of competency — Board of certification — Members — Compensation.

The Energy and Environment Cabinet shall certify persons as to their qualifications to supervise successfully the operation of water treatment plants or water distribution systems after considering the recommendations of a board of certification which shall be appointed by the secretary of the Energy and Environment Cabinet or his designee. The board shall consist of the following: two (2) members who are currently employed as waterworks operators holding valid certificates; one (1) member employed by a municipality who holds the position of either city manager, city engineer, director of public works, or the equivalent thereof; one (1) member who is a faculty member of a college, university, or professional school whose major field is related to water supply; and one (1) ex officio member representing the Energy and Environment Cabinet. Board members shall serve for a four (4) year term or until their successors are appointed and qualify. The Energy and Environment Cabinet representative shall serve as executive secretary and treasurer of the board and be responsible for maintaining records. The members of the board shall serve without compensation, but may be reimbursed for all actual and necessary expenses incurred while discharging their official duties.

History. Enact. Acts 1966, ch. 156, § 2; 1972 (1st Ex. Sess.), ch. 3, § 38; 1974, ch. 74, Art. VI, § 107(1), (2), (11); 1976, ch. 299, § 45; 2010, ch. 24, § 337, effective July 15, 2010.

223.180. Plants to be classified according to skills required for operation.

The Energy and Environment Cabinet shall classify all water treatment plants and water distribution systems with due regard to size, type, physical conditions affecting such treatment plants and distribution systems, and according to the skill, knowledge and experience that the operator must have to supervise successfully the operation of such water treatment plants and water distribution systems so as to protect the public health.

History. Enact. Acts 1966, ch. 156, § 3; 1972 (1st Ex. Sess.), ch. 3, § 39; 1974, ch. 74, Art. VI, § 107(1), (11); 1976, ch. 299, § 46; 2010, ch. 24, § 338, effective July 15, 2010.

223.190. Supervisors of plants to be certified as to competency.

All water treatment plants and water distribution systems, whether publicly or privately owned, shall be under the supervision of an operator whose competency is certified to by the Energy and Environment Cabinet in a grade corresponding to the classification of the water supply system to be supervised. All operators holding valid and effective certificates issued under existing regulations of the State Board of Health on June 16, 1966, may, within the discretion of the Energy and Environment Cabinet, be issued new certificates without examination for any appropriate new classifications that may be established by the regulations adopted hereunder or such certificates may be continued in effect.

History. Enact. Acts 1966, ch. 156, § 4; 1972 (1st Ex. Sess.), ch. 3, § 40; 1974, ch. 74, Art. VI, § 107(1), (10), (11); 1976, ch. 299, § 47; 2010, ch. 24, § 339, effective July 15, 2010.

Compiler’s Notes.

The state board of health, referred to in this section, was abolished by Acts 1974, ch. 74, Art. VI, § 29.

223.200. Rules and regulations as to certification of water treatment and water distribution plant operators.

The secretary of the Energy and Environment Cabinet, with the advice of the board of certification, shall adopt rules and regulations as are reasonably necessary to carry out the intent of KRS 223.160 to 223.220 and 223.991 . The rules and regulations may include, but are not limited to, provisions establishing standards for classification of water treatment plants and water distribution systems, provisions establishing qualifications of applicants and procedures for examination of candidates, membership, and duties of the board of certification, provisions relating to the renewal, cancellation or revocation of certificates, including the specifications of the grounds therefor, and such other provisions as are necessary for the administration of KRS 223.160 to 223.220 and 223.991 .

History. Enact. Acts 1966, ch. 156, § 5; 1972 (1st Ex. Sess.), ch. 3, § 41; 1974, ch. 74, Art. VI, § 107(10); 1976, ch. 299, § 48; 2010, ch. 24, § 340, effective July 15, 2010.

223.210. Operation of plant without certificate prohibited.

It shall be unlawful for any person, firm, or corporation (municipal or private) to operate a water treatment plant or water distribution system unless the competency of the operator who is in direct responsible charge is duly certified to by the Energy and Environment Cabinet under the provisions of KRS 223.160 to 223.220 and 223.991 . It shall be unlawful for any person to perform the duties of an operator, in direct responsible charge, without being duly certified under the provisions of KRS 223.160 to 223.220 and 223.991 . The Energy and Environment Cabinet may, however, issue provisional certificates for emergency situations.

History. Enact. Acts 1966, ch. 156, § 6; 1972 (1st Ex. Sess.), ch. 3, § 42; 1974, ch. 74, Art. VI, § 107(1), (11); 1976, ch. 299, § 49; 2010, ch. 24, § 341, effective July 15, 2010.

223.220. Fees for examinations and certificates.

The Energy and Environment Cabinet is authorized to fix a reasonable schedule of fees and charges by regulation to be paid by applicants for examinations, certificates, and renewal certificates. All such fees and charges and other moneys collected by the Energy and Environment Cabinet under the provisions of KRS 223.160 to 223.220 and 223.991 or the rules and regulations of the cabinet shall be paid into the State Treasury and credited to a trust and agency fund to be used by the Energy and Environment Cabinet in carrying out the provisions of KRS 223.160 to 223.220 and 223.991 .

History. Enact. Acts 1966, ch. 156, § 7; 1976, ch. 299, § 50; 2010, ch. 24, § 342, effective July 15, 2010.

Water Well Construction Practices

223.400. Definitions for KRS 223.405 to 223.460.

As used in KRS 223.405 to 223.460 , unless the context requires otherwise:

  1. “Alteration or repair of a water well” means any maintenance, addition, or change of well or pitless adapter, but does not include replacement or repair of a water pump or associated piping;
  2. “Board” means the Kentucky Water Well Certification Board;
  3. “Cabinet” means the Energy and Environment Cabinet;
  4. “Certificate” means a certificate of competency issued by the secretary stating that the water well driller has met all the requirements for the appropriate classification set forth in KRS 223.405 to 223.460 or by regulation;
  5. “Person” means an individual, corporation, partnership, association, municipality, state and federal government, or other public body or other legal entity, or any officer, employee, or agent of any of the foregoing;
  6. “Secretary” means the secretary of the Energy and Environment Cabinet;
  7. “Water well” or “well” means any excavation or opening in the surface of the earth that is drilled, cored, bored, washed, driven, jetted, or otherwise constructed when the actual or intended use in whole or part of an excavation is the removal of water for any purpose, including but not limited to culinary and household purposes, animal consumption, food manufacture, use of geothermal resources for domestic heating purposes and industrial, irrigation, and dewatering purposes, but not including wells to be used for watering stock or for general farmstead use if the wells do not provide water for human consumption;
  8. “Water well driller” means a person who is qualified to engage in the drilling, alteration, or repair of a water well as defined in this chapter; and
  9. “Water well driller’s assistant” means a person who is qualified to engage in the drilling, alteration, or repair of a water well under the supervision of a certified water well driller who provided the affidavit of supervision required under KRS 223.425(5)(g).

History. Enact. Acts 1984, ch. 215, § 1, effective July 13, 1984; 1992, ch. 212, § 1, effective July 14, 1992; 2010, ch. 24, § 343, effective July 15, 2010; 2019 ch. 4, § 1, effective June 27, 2019.

223.405. Necessity of certificate.

It is unlawful for any person as defined in KRS 223.400 , to construct, alter, or repair a water well without first having obtained a valid certificate as a water well driller or as a water well driller’s assistant as provided for in KRS 223.425 .

History. Enact. Acts 1984, ch. 215, § 2, effective July 13, 1984; 1992, ch. 212, § 2, effective July 14, 1992; 2019 ch. 4, § 2, effective June 27, 2019.

223.410. Kentucky Water Well Certification Board.

The Kentucky Water Well Certification Board is established. The board shall recommend to the secretary administrative regulations to govern examinations; hearings to suspend, revoke or deny a certificate; and any other duties prescribed by KRS 223.405 to 223.460 . The subject matter of such examinations shall include, in addition to any standardized section, testing for knowledge of local laws and regulations.

History. Enact. Acts 1984, ch. 215, § 3, effective July 13, 1984.

223.415. Appointments to board — Meetings — Payment of expenses.

  1. The board shall be appointed by the Governor upon the advice of the secretary after soliciting recommendations of interested parties. All members of the board shall be residents of the Commonwealth. The board shall be composed of the following:
    1. A driller who is an active member of both the National Water Well Association and the Kentucky Water Well Association and whose business is actively involved in drilling water wells. This member shall serve for an initial term of three (3) years;
    2. A member who is a representative of the cabinet who shall serve as the executive secretary and treasurer of the board and shall be responsible for maintaining records, to serve for an initial term of three (3) years;
    3. A member who is a hydrogeologist or hydrologist from the Kentucky Geological Survey to serve for an initial term of two (2) years;
    4. Three (3) members who are water well drillers and who are presently in the business of drilling wells, each representing a different geographic region within the Commonwealth, to serve for an initial term of two (2) years; and
    5. A member from the public at large, who shall not be in any way connected with a water well business, to serve for an initial term of two (2) years.
  2. Upon the expiration of the respective terms, each successor shall be appointed in the same manner as the predecessor for a term of three (3) years.
  3. At the first meeting of the board held in each calendar year, the board shall elect a chairperson who shall serve for one (1) year. A majority of members shall decide upon rules of procedure.
  4. The board shall hold as many meetings a year as are necessary to effectuate the purpose of KRS 223.405 to 223.460 , but the board must hold at least quarterly meetings. Notice of a meeting shall be sent to each member at least ten (10) days prior to the meeting. Five (5) members shall constitute a quorum. Rules of procedure adopted by the board may provide for such additional meetings as are necessary.
  5. The members of the board shall serve without compensation but may be reimbursed for all actual and necessary expenses incurred while discharging their official duties.

History. Enact. Acts 1984, ch. 215, § 4, effective July 13, 1984; 2006, ch. 26, § 2, effective July 12, 2006.

223.420. Duties of cabinet.

  1. The cabinet shall:
    1. Fix and announce dates for the examinations;
    2. Prepare and make available forms for application for a water well driller certificate;
    3. See that all examinations for certificates are graded;
    4. Prepare and issue certificates to those entitled thereto;
    5. Upon recommendation of the board, promulgate rules and regulations as are necessary to carry out the purposes of KRS 223.405 to 223.460 , including the conducting of examinations and the suspension and revocation of certificates;
    6. Inspect and investigate water wells to ensure compliance with the provisions of KRS 223.405 to 223.460 ;
    7. Maintain and publish annually a register showing the names and addresses of certified water well drillers and distribute a copy of same to each certified individual free of charge;
    8. Maintain under the control of the executive secretary and treasurer a record showing:
      1. The names and addresses of all certified individuals under KRS 223.425 ;
      2. The dates of issuance and renewal of all certificates;
      3. The date and substance of the charges set forth in any complaint for suspension or revocation of any certificate;
      4. The date and substance of all petitions for reinstatement of certificates; and
      5. The final order on such complaints and petitions.
  2. Upon written request the cabinet shall make the information set forth in paragraph (h) of subsection (1) of this section available to any person so requesting.
  3. The cabinet may conduct training to further the provisions of KRS 223.405 to 223.460 .

History. Enact. Acts 1984, ch. 215, § 5, effective July 13, 1984.

223.425. Application for certificate or renewal — Qualifications of water well driller — Limited exemption for users of divining rods — Term of certificate — Water well driller’s assistant card — Supervision of assistants — Administrative regulations.

  1. Application for a certificate, or for renewal thereof, shall be made to the cabinet in writing under oath or affirmation, upon forms prescribed and furnished by the cabinet. The applications shall include:
    1. The name and address of the applicant;
    2. Prior experience, if any, in the field for which the applicant is applying;
    3. Any other information that the cabinet deems necessary in order to carry out the provisions of KRS 223.405 to 223.460 ; and
    4. All past and current licenses held in this or any other state relating to the provisions of KRS 223.405 to 223.460 .
  2. The cabinet may issue a water well driller certificate to any applicant who meets all of the provisions of KRS 223.405 to 223.460 and:
    1. Is at least eighteen (18) years of age; and
    2. Is legally permitted to work in the United States; and
    3. Has worked for two (2) years under the supervision of a certified water well driller or has other suitable experience or education as determined by the cabinet. For those in business on July 13, 1984, the two (2) year experience requirement shall be deemed satisfied if the driller has engaged in water well drilling, over the two (2) previous years; and
    4. Has a passing grade on the examination as determined by the cabinet.
  3. Those persons who are water witchers, dowsers, diviners, and any others who use divining rods for the purpose of locating underground water resources shall be exempt from KRS 223.405 to 223.460 for the purpose of locating underground water resources, but are not exempt from the requirements of KRS 223.405 to 223.460 for the purpose of installing water wells.
  4. The term of each certificate shall be one (1) year. Each certificate shall carry with it the right to successive renewal upon application and payment of fee, unless the board finds that the certified individual has failed to comply satisfactorily with KRS 223.405 to 223.460 or the regulations promulgated pursuant to KRS 223.420 or 223.435 .
  5. Application for a certified water well driller’s assistant card shall be made on forms prescribed and furnished by the cabinet. Applications shall include the following information:
    1. Name and address of the applicant;
    2. Prior experience, if any, in the field for which the applicant is applying;
    3. Past and current licenses held in the Commonwealth or any other state that relates to KRS 223.405 to 223.460 ;
    4. Proof that the applicant is at least eighteen (18) years of age;
    5. Proof that the applicant is legally permitted to work in the United States;
    6. Proof that the applicant has a passing grade on examinations required by the cabinet;
    7. An affidavit of supervision signed by the certified water well driller, which shall include, at a minimum, the following information:
      1. The name and certification number of the certified water well driller;
      2. The name of the company under which the certified water well driller works;
      3. The name and address of the certified water well driller’s assistant to be supervised under the company identified in subparagraph 2. of this paragraph;
      4. The effective date when supervision is to begin, and a statement that supervision shall remain in effect until such time as the certified water well driller provides written notice to the Division of Water and the water well driller’s assistant of the termination of supervision;
      5. The types of duties or operations to be performed by the water well driller’s assistant while under supervision of the certified water well driller, and a statement that the work to be performed shall be in accordance with all applicable statutes and administrative regulations; and
      6. Notarized signatures of the certified water well driller and the certified water well driller’s assistants; and
    8. Any other information that the cabinet deems necessary in order to carry out KRS 223.405 to 223.460 .
  6. The water well driller’s assistant card shall be effective for one (1) year and shall be subject to successive renewal upon submission of application and payment of prescribed fee by the cabinet unless:
    1. The cabinet finds that the certified water well driller’s assistant has failed to comply with any of the provisions of KRS 223.405 to 223.460 or the administrative regulations promulgated thereunder; or
    2. The certified water well driller’s assistant has failed to maintain an annual minimum of eight (8) hours of continuing education credits.
  7. A certified water well driller is allowed to supervise a maximum of two (2) certified water well driller’s assistants at any given time.
  8. The water well driller’s assistant shall be under the certified water well driller’s direct supervision when constructing, modifying, abandoning, or testing a water well.
  9. The cabinet shall promulgate administrative regulations to establish the required forms, process, examination, fees, affidavit of supervision, requirements of direct supervision by the certified driller, and any other requirements necessary for the implementation of the water well driller’s assistant certification program.

History. Enact. Acts 1984, ch. 215, § 6, effective July 13, 1984; 1990, ch. 209, § 1, effective March 30, 1990; 1992, ch. 212, § 3, effective July 14, 1992; 2019 ch. 4, § 3, effective June 27, 2019.

223.430. Liability coverage — Surety bond.

  1. Each application for issuance or renewal of a certificate shall be accompanied by a proof of either split limits liability coverage for bodily injury of at least twenty-five thousand dollars ($25,000) per person with an aggregate of at least fifty thousand dollars ($50,000) and for property damage of at least fifty thousand dollars ($50,000) per accident with an aggregate of at least one hundred thousand dollars ($100,000), or single limits liability coverage of not less than one hundred thousand dollars ($100,000) for all damages whether arising out of bodily injury or damage to property as a result of any one (1) accident or occurrence. Notice shall be given by certified mail to the executive secretary and treasurer of the board by the insurer upon lapse of coverage by the insurance company for any reason, including nonpayment of premiums.
  2. Prior to the issuance of a driller certificate, proof of a surety bond must be filed along with the application for a certificate. The penal sum of this bond shall be five thousand dollars ($5,000), with the applicant designated as the principal obligor and the Commonwealth designated as the obligee. The surety may be called on by the secretary if the certified individual violates any design standards adopted as administrative regulations pursuant to KRS 223.420 or 223.435 or provision of KRS 223.405 to 223.460 . The surety bond shall be used for the express purposes of correcting the violations. Notice of lapse of coverage for any reason by the surety shall be given by certified mail to the executive secretary and treasurer of the board by the surety.
  3. A water well driller’s assistant shall work under the liability insurance and surety bond of the supervising certified water well driller, as required under subsections (1) and (2) of this section, unless the water well driller’s assistant provides the cabinet proof that he or she obtained liability insurance or a surety bond.

History. Enact. Acts 1984, ch. 215, § 7, effective July 13, 1984; 1986, ch. 249, § 1, effective April 3, 1986; 1992, ch. 212, § 4, effective July 14, 1992; 2019 ch. 4, § 4, effective June 27, 2019.

223.435. Regulations.

The secretary, upon recommendation of the board, shall promulgate administrative regulations establishing standards of practice for water well construction. The secretary shall utilize the manual of water well construction practices as the guidance document in the development of standards and regulations. These standards and regulations shall be proposed within one (1) year of July 13, 1984, and shall be included as a component of the certification program.

History. Enact. Acts 1984, ch. 215, § 8, effective July 13, 1984.

223.440. Records of water well drillers.

  1. A water well driller certified under KRS 223.425 shall keep a record of each water well that is constructed, altered, or sealed after July 13, 1984, and shall furnish a signed copy of such record to the cabinet within thirty (30) days after the completion of the construction or alteration. A copy of the record shall be furnished to the property owner by the driller within thirty (30) days of completion of the well. Each record required under this section shall be in a form prescribed by the cabinet and shall show:
    1. The name and address of the owner of the well and the persons constructing or altering the well;
    2. A sketch showing the distance from any road, intersection, septic tank drain fields and permanent structures;
    3. The dates of commencement and completion of the construction or alteration of the well;
    4. The depth, diameter, and type of casing;
    5. The kind of joint couplings;
    6. Information on screens and type of completion;
    7. The discharge in gallons per minute and the shut-in pressure in pounds per square inch of a flowing well;
    8. The static water level with reference to the land surface and estimation of well yield, and the drawdown with respect to the amount of water yielded per minute;
    9. The kind, nature, approximate thickness and water-bearing capacity of the material in each stratum penetrated that shows the presence of water, with at least one (1) entry for each change in rock types;
    10. The type and amount of disinfectant used and the date of disinfection; and
    11. A water well driller’s assistant shall not be authorized to certify records related to the construction, modification, abandonment, or testing of a water well.
  2. Where the well is for potable use the well driller shall be responsible for having the well tested for fecal coliform and the initial disinfection of the well. The driller shall provide the well owner and the cabinet with the written results of any and all testing and a written assurance that the well has been properly disinfected, within thirty (30) days of well completion.
  3. A copy of the record shall be furnished by the cabinet to the Kentucky Geological Survey.

History. Enact. Acts 1984, ch. 215, § 9, effective July 13, 1984; 2019 ch. 4, § 5, effective June 27, 2019.

223.445. Fees.

The secretary, upon recommendation of the board, shall establish by regulation a system of fees, provided that the fees shall not exceed reasonable costs of administering the certification, certificate renewal, testing, inspection, certificate suspension and revocation activities provided for in KRS 223.405 to 223.460 . All fees obtained under this program shall be deposited in a trust and agency account for the sole use of the board and the cabinet in administering the certification program, and shall not become part of the general fund.

History. Enact. Acts 1984, ch. 215, § 10, effective July 13, 1984.

223.447. Fees for certification and examination of water well drillers and assistants.

  1. An applicant for a water well driller certification or a water well driller’s assistant certification shall be subject to a fee by the cabinet of fifty dollars ($50).
  2. An applicant to take a water well driller’s certification examination or a water well driller’s assistant certification examination shall be subject to a fee by the cabinet of eighty dollars ($80).
  3. An applicant for a water well driller’s certification or a water well driller’s assistant certification, upon notification by the cabinet that all requirements have been met for certification, shall be subject to a certification fee by the cabinet of two hundred dollars ($200) for initial certification.
  4. An applicant for the renewal of a water well driller’s certificate or the renewal of a water well driller’s assistant certificate shall be subject to a renewal fee by the cabinet of two hundred dollars ($200).

History. Enact. Acts 1990, ch. 471, § 7, effective July 13, 1990; 2019 ch. 4, § 6, effective June 27, 2019.

223.450. Compliance with KRS 223.405 to 223.460 necessary to work in Kentucky.

All water well drillers and water well driller’s assistants, before doing any water well related work in Kentucky, must comply with KRS 223.405 to 223.460 notwithstanding comparable state provisions in states other than Kentucky.

History. Enact. Acts 1984, ch. 215, § 11, effective July 13, 1984; 2019 ch. 4, § 7, effective June 27, 2019.

223.455. Inspections by cabinet.

The cabinet may make such unannounced inspections as it deems necessary to determine compliance of certified individuals with the provisions of KRS 223.405 to 223.460 . The cabinet shall also have the right to enter consistent with due process upon any and all property for the purpose of obtaining information about water well construction, whether idle, in use or abandoned.

History. Enact. Acts 1984, ch. 215, § 12, effective July 13, 1984.

223.460. Action for damages for injury to person or property.

Any person who is injured in his person or property through the violation of any rule, regulation, order, or determination issued pursuant to KRS 223.405 to 223.460 may bring an action for damages, including reasonable attorney and expert witness fees, in the Circuit Court of the county in which the water well related activity complained of is located.

History. Enact. Acts 1984, ch. 215, § 13, effective July 13, 1984.

Penalties

223.990. Penalty.

Any person violating KRS 223.080 may be fined not more than one thousand dollars ($1,000) or imprisoned not more than six (6) months.

History. Enact. Acts 1960, ch. 102, § 8; 1992, ch. 309, § 10, effective July 14, 1992.

223.991. Penalties.

  1. Any person, firm or corporation (municipal or private) who violates any provisions of KRS 223.160 to 223.220 or the rules and regulations adopted thereunder shall be liable to a civil penalty not to exceed the sum of one thousand dollars ($1,000) for said violation and an additional civil penalty not to exceed one thousand dollars ($1,000) for each day of operation in violation of KRS 223.160 to 223.220 or of the rules and regulations adopted thereunder. In addition, the person, firm or corporation may be enjoined in the manner set forth in KRS Chapter 224 from continuing such violations.
  2. Any person who fails to comply with the certification provisions of KRS 223.425 shall be liable for a civil penalty of not less than two thousand five hundred dollars ($2,500) and not more than five thousand dollars ($5,000) per occurrence, and in addition may be concurrently enjoined from any such violations as hereinafter provided.
  3. Any person certified under the provisions of KRS 223.425 , who violates KRS 223.405 to 223.460 or fails to perform any duties imposed by these sections, or who violates any determination, rule, regulation or order or determination of the secretary promulgated pursuant thereto may be subject to proceedings for certificate suspension or revocation, or nonrenewal of a certificate.
  4. It shall be the duty of the cabinet to institute an action for the recovery of the penalties herein provided for, and to bring an action for an injunction against any person violating or threatening to violate the certification provisions of KRS 223.425 or violating or threatening to violate any order or determination of the cabinet promulgated pursuant thereto.
  5. Any person found guilty of violating the certification provisions of KRS 223.425 or the rules and regulations adopted thereunder shall be guilty of a misdemeanor and may be fined not less than one hundred dollars ($100) nor more than five hundred dollars ($500) for each violation or imprisoned not more than thirty (30) days or both. Each day the violation continues shall be considered a separate violation.
  6. Civil and criminal penalties shall not be deemed mutually exclusive.
  7. All enforcement proceedings shall be conducted pursuant to KRS Chapter 224, and all certificate revocation and enforcement actions shall be subject to the administrative and judicial procedures contained in KRS Chapter 224.

History. Enact. Acts 1966, ch. 156, § 8; 1976, ch. 250, § 1; 1984, ch. 215, § 14, effective July 13, 1984; 2006, ch. 26, § 1, effective July 12, 2006.

CHAPTER 224 Environmental Protection

224.005. [Renumbered as KRS 224.01-010.]

Compiler’s Notes.

This section was renumbered as KRS 224.01-010 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.010. Definitions. [Repealed]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 69, § 3) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

224.011. [Renumbered and repealed.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-010 in 1991 by the Reviser of Statutes under authority of KRS 7.136 and was subsequently repealed by Acts 1992, ch. 13, § 13, effective July 14, 1992.

224.012. [Renumbered as KRS 224.10-020.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-020 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.013. Office of general counsel. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 74, Art. III, § 3) was repealed by Acts 1990, ch. 399, § 8, effective July 13, 1990.

224.014. [Renumbered as KRS 224.10-050.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-050 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.015. [Renumbered as KRS 224.10-040.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-040 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.016. [Renumbered as KRS 224.10-190.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-190 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.017. Rules and regulations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 74, Art. III, §§ 8, 9) was repealed by Acts 1984, ch. 111, § 199, effective July 13, 1984.

224.018. [Renumbered as KRS 224.10-030.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-030 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.020. [Renumbered as KRS 224.70-100.]

Compiler’s Notes.

This section was renumbered as KRS 224.70-100 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.021. [Renumbered as KRS 224.10-192.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-192 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.022. [Renumbered as KRS 224.10-194.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-194 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.025. [Renumbered as KRS 224.10-055.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-055 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.030. Water pollution control commission — Creation — Membership — Compensation — Meetings — Officers and employes. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 69, § 4; 1952, ch. 127, § 1; 1958, ch. 148, § 1; 1966, ch. 21, § 1; 1970, ch. 230, § 1) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

224.031. Department of environmental protection — Commissioner — Employes. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 2) was repealed by Acts 1974, ch. 74, Art. III, § 14.

224.032. [Renumbered as KRS 224.10-110.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-110 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.0323. [Renumbered as KRS 224.10-060.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-060 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.033. [Renumbered as KRS 224.10-100.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-100 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.0332. [Renumbered as KRS 224.10-610.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-610 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.0334. [Renumbered as KRS 152.075.]

Compiler’s Notes.

This section was renumbered as KRS 152.075 , effective July 10, 1991 by the Reviser of Statutes under authority of KRS 7.136 , and was subsequently repealed, reenacted, and amended as KRS 154.12-212 , effective July 14,1992.

224.0335. [Renumbered as KRS 224.10-105.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-105 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.034. [Renumbered as KRS 224.16-050.]

Compiler’s Notes.

This section was renumbered as KRS 224.16-050 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.035. [Renumbered as KRS 224.10-210.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-210 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.036. [Renumbered as KRS 224.10-212.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-212 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.037. [Renumbered as KRS 224.16-060.]

Compiler’s Notes.

This section was renumbered as KRS 224.16-060 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.038. [Renumbered as KRS 224.10-630.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-630 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.040. Powers and duties of commission. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 69, § 5) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

224.041. [Renumbered as KRS 224.01-100.]

Compiler’s Notes.

This section was renumbered as KRS 224.01-100 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.043. [Renumbered as KRS 224.01-105.]

Compiler’s Notes.

This section was renumbered as KRS 224.01-105 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.045. [Renumbered as KRS 224.01-110.]

Compiler’s Notes.

This section was renumbered as KRS 224.01-110 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.050. Commission may cooperate with and accept funds from the United States and other sources for water pollution control. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 69, § 6; 1966, ch. 21, § 2) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

224.055. [Renumbered as KRS 224.01-115.]

Compiler’s Notes.

This section was renumbered as KRS 224.01-115 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.060. [Renumbered as KRS 224.70-110.]

Compiler’s Notes.

This section was renumbered as KRS 224.70-110 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.065. [Renumbered as KRS 224.30-050.]

Compiler’s Notes.

This section was renumbered as KRS 224.30-050 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.070. Emergency orders of the commission or director — Effect — Hearing. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 21, § 4) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

224.071. [Renumbered as KRS 224.10-410.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-410 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.073. [Renumbered as KRS 224.10-270.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-270 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.075. [Renumbered as KRS 224.10-275.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-275 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.080. Hearings — Appeals from orders or rulings of commission. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 69, § 8; 1962, ch. 174; 1966, ch. 21, § 3) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

224.081. [Renumbered as KRS 224.10-420.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-420 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.082. [Renumbered as KRS 224.10-430.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-430 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.083. [Renumbered as KRS 224.10-440.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-440 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.085. [Renumbered as KRS 224.10-470.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-470 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.087. [Renumbered as KRS 224.10-120.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-120 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.090. Jurisdiction of actions to enforce law. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 21, § 5) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

224.091. [Renumbered as KRS 224.01-050.]

Compiler’s Notes.

This section was renumbered as KRS 224.01-050 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.100. [Renumbered as KRS 224.01-060.]

Compiler’s Notes.

This section was renumbered as KRS 224.01-060 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.110. [Renumbered as KRS 224.01-070.]

Compiler’s Notes.

This section was renumbered as KRS 224.01-070 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.1151. [Renumbered as KRS 224.70-120.]

Compiler’s Notes.

This section was renumbered as KRS 224.70-120 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.1155. [Renumbered as KRS 224.46-012.]

Compiler’s Notes.

This section was renumbered as KRS 224.46-012 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.1157. [Renumbered as KRS 224.46-014.]

Compiler’s Notes.

This section was renumbered as KRS 224.46-014 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.1161. [Renumbered as KRS 224.46-016.]

Compiler’s Notes.

This section was renumbered as KRS 224.46-016 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.1165. [Renumbered as KRS 224.46-018.]

Compiler’s Notes.

This section was renumbered as KRS 224.46-018 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.1167. [Renumbered as KRS 224.20-050.]

Compiler’s Notes.

This section was renumbered as KRS 224.20-050 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.117. [Renumbered as KRS 224.10-230.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-230 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.120. [Renumbered as KRS 224.10-250.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-250 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.125. [Renumbered as KRS 224.70-130.]

Compiler’s Notes.

This section was renumbered as KRS 224.70-130 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.130. [Renumbered as KRS 224.73-100.]

Compiler’s Notes.

This section was renumbered as KRS 224.73-100 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.135. [Renumbered as KRS 224.73-110.]

Compiler’s Notes.

This section was renumbered as KRS 224.73-110 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.140. [Renumbered as KRS 224.73-120.]

Compiler’s Notes.

This section was renumbered as KRS 224.73-120 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.190. [Renumbered as KRS 224.18-760.]

Compiler’s Notes.

This section was renumbered as KRS 224.18-760 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.195. [Renumbered as KRS 224.18-780.]

Compiler’s Notes.

This section was renumbered as KRS 224.18-780 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.200. [Renumbered as KRS 224.18-785.]

Compiler’s Notes.

This section was renumbered as KRS 224.18-785 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.205. [Renumbered as KRS 224.18-710.]

Compiler’s Notes.

This section was renumbered as KRS 224.18-710 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.210. [Renumbered as KRS 224.18-715.]

Compiler’s Notes.

This section was renumbered as KRS 224.18-715 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.2113. [Renumbered as KRS 224.01-205.]

Compiler’s Notes.

This section was renumbered as KRS 224.01-205 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.2115. [Renumbered as KRS 224.01-210.]

Compiler’s Notes.

This section was renumbered as KRS 224.01-210 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.2117. [Renumbered as KRS 224.01-215.]

Compiler’s Notes.

This section was renumbered as KRS 224.01-215 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.2119. [Renumbered as KRS 224.01-220.]

Compiler’s Notes.

This section was renumbered as KRS 224.01-220 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.212. [Renumbered as KRS 224.896.]

Compiler’s Notes.

This section was renumbered as KRS 224.896 in 1982 and was subsequently renumbered as KRS 224.43-810 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.213. [Renumbered as KRS 224.897.]

Compiler’s Notes.

This section was renumbered as KRS 224.897 in 1982 and was subsequently renumbered as KRS 224.43-815 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.214. Limitations on liability. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 112, § 3, effective June 17, 1978) was repealed by Acts 1982, ch. 279, § 18, effective July 15, 1982.

224.215. Termination of projects. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 112, § 4, effective June 17, 1978; 1978, ch. 186, § 22, effective March 29, 1978) was repealed by Acts 1982, ch. 279, § 18, effective July 15, 1982.

This section was renumbered as KRS 224.73-120 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.216. Eligibility requirements. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 112, § 5, effective June 17, 1978; 1978, ch. 186, § 22, effective March 29, 1978; 1980, ch. 197, § 2, effective July 15, 1980) was repealed by Acts 1982, ch. 279, § 18, effective July 15, 1982.

224.217. [Renumbered as KRS 224.902.]

Compiler’s Notes.

This section was renumbered as KRS 224.902 in 1982 and was subsequently renumbered as KRS 224.10-650 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.218. [Renumbered as KRS 224.903.]

Compiler’s Notes.

This section was renumbered as KRS 224.903 in 1982 and was subsequently renumbered as KRS 224.46-590 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.220. Definitions. [Repealed.]

Compiler’s Notes.

This section (Acts 1968, ch. 82, § 1) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

224.2201. [Renumbered as KRS 224.46-810.]

Compiler’s Notes.

This section was renumbered as KRS 224.46-810 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.2203. [Renumbered as KRS 224.46-820.]

Compiler’s Notes.

This section was renumbered as KRS 224.46-820 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.2205. [Renumbered as KRS 224.46-825.]

Compiler’s Notes.

This section was renumbered as KRS 224.46-825 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.2207. [Renumbered as KRS 224.46-830.]

Compiler’s Notes.

This section was renumbered as KRS 224.46-830 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.2209. [Renumbered as KRS 224.46-840.]

Compiler’s Notes.

This section was renumbered as KRS 224.46-840 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.2211. [Renumbered as KRS 224.46-850.]

Compiler’s Notes.

This section was renumbered as KRS 224.46-850 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.2213. [Renumbered as KRS 224.46-860.]

Compiler’s Notes.

This section was renumbered as KRS 224.46-860 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.2215. [Renumbered as KRS 224.46-870.]

Compiler’s Notes.

This section was renumbered as KRS 224.46-870 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.223. [Renumbered as KRS 211.972.]

Compiler’s Notes.

This section was renumbered as KRS 211.972 by the Reviser of Statutes under authority of KRS 7.136 .

224.225. [Renumbered as KRS 211.974.]

Compiler’s Notes.

This section was renumbered as KRS 211.974 by the Reviser of Statutes under authority of KRS 7.136 .

224.227. [Renumbered as KRS 211.976.]

Compiler’s Notes.

This section was renumbered as KRS 211.976 by the Reviser of Statutes under authority of KRS 7.136 .

224.230. [Renumbered as KRS 211.978.]

Compiler’s Notes.

This section was renumbered as KRS 211.978 by the Reviser of Statutes under authority of KRS 7.136 .

224.233. [Renumbered as KRS 211.980.]

Compiler’s Notes.

This section was renumbered as KRS 211.980 by the Reviser of Statutes under authority of KRS 7.136 .

224.237. [Renumbered as KRS 211.982.]

Compiler’s Notes.

This section was renumbered as KRS 211.982 by the Reviser of Statutes under authority of KRS 7.136 .

224.250. [Renumbered as KRS 224.830.]

Compiler’s Notes.

This section was renumbered as KRS 224.830 in 1982 and was subsequently renumbered as KRS 224.43-010 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.2502. [Renumbered as KRS 224.50-410.]

Compiler’s Notes.

This section was renumbered as KRS 224.50-410 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.2505. [Renumbered as KRS 224.50-413.]

Compiler’s Notes.

This section was renumbered as KRS 224.50-413 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.251. [Renumbered as KRS 224.50-585.]

Compiler’s Notes.

This section was renumbered as KRS 224.50-585 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.252. Regulations restriction. [Repealed.]

Compiler’s Notes.

This section (Acts 1978, ch. 113, § 16, effective June 17, 1978) was repealed by Acts 1980, ch. 265, § 1, effective July 15, 1980.

224.255. [Renumbered as KRS 224.835.]

Compiler’s Notes.

This section was renumbered as KRS 224.835 in 1982 and was subsequently renumbered as KRS 224.40-100 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.260. Household waste excepted. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 14, effective January 1, 1973) was repealed by Acts 1982, ch. 74, § 27, effective July 15, 1982.

224.2611. [Renumbered as KRS 224.50-820.]

Compiler’s Notes.

This section was renumbered as KRS 224.50-820 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.2613. [Renumbered as KRS 224.50-822.]

Compiler’s Notes.

This section was renumbered as KRS 224.50-822 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.2615. [Renumbered as KRS 224.50-824.]

Compiler’s Notes.

This section was renumbered as KRS 224.50-824 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.2617. [Renumbered as KRS 224.50-826.]

Compiler’s Notes.

This section was renumbered as KRS 224.50-826 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.2619. [Renumbered as KRS 224.50-828.]

Compiler’s Notes.

This section was renumbered as KRS 224.50-828 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.2621. [Renumbered as KRS 224.50-830.]

Compiler’s Notes.

This section was renumbered as KRS 224.50-830 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.2623. [Renumbered as KRS 224.50-832.]

Compiler’s Notes.

This section was renumbered as KRS 224.50-832 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.2625. [Renumbered as KRS 224.50-834.]

Compiler’s Notes.

This section was renumbered as KRS 224.50-834 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.2627. [Renumbered as KRS 224.50-836.]

Compiler’s Notes.

This section was renumbered as KRS 224.50-836 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.2629. [Renumbered as KRS 224.50-838.]

Compiler’s Notes.

This section was renumbered as KRS 224.50-838 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.2631. [Renumbered as KRS 224.50-840.]

Compiler’s Notes.

This section was renumbered as KRS 224.50-840 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.2633. [Renumbered as KRS 224.50-842.]

Compiler’s Notes.

This section was renumbered as KRS 224.50-842 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.2635. [Renumbered as KRS 224.50-844.]

Compiler’s Notes.

This section was renumbered as KRS 224.50-844 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.2637. [Renumbered as KRS 224.50-846.]

Compiler’s Notes.

This section was renumbered as KRS 224.50-846 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.265. [Renumbered as KRS 224.840.]

Compiler’s Notes.

This section was renumbered as KRS 224.840 in 1982 and was subsequently renumbered as KRS 224.40-340 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.310. Definitions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 22, § 1) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

224.320. [Renumbered as KRS 224.20-100.]

Compiler’s Notes.

This section was renumbered as KRS 224.20-100 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.330. [Renumbered as KRS 224.20-110.]

Compiler’s Notes.

This section was renumbered as KRS 224.20-110 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.340. [Renumbered as KRS 224.20-120.]

Compiler’s Notes.

This section was renumbered as KRS 224.20-120 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.350. Registration of persons whose business contributes to pollution required, when. [Repealed.]

Compiler’s Notes.

This section (Acts 1966, ch. 22, § 7) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

224.360. Regulation of equipment to prevent pollution. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 22, § 8) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

224.370. Inspection of premises — Interference unlawful. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 22, § 9) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

224.380. Reports and records confidential — Limits on use. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 22, § 10) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

224.390. Orders for cessation of violation — Hearings. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 22, § 11) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

224.400. Emergency orders for abatement. [Repealed.]

Compiler’s Notes.

This section (Acts 1966, ch. 22, § 12) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

224.410. Exemption from regulations — Application — Granting — Limitations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 22, § 13) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

224.420. Air pollution control commission, members, terms, qualifications, compensation, officers, personnel meetings. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 22, § 2; 1970 Ky. Acts ch. 5, § 1) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

224.430. Powers generally. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 22, § 4) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

224.440. Cooperation with federal authorities — Acceptance of federal funds — Recommend projects — Administer loans and grants. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 22, § 3) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

224.450. [Renumbered as KRS 224.20-130.]

Compiler’s Notes.

This section was renumbered as KRS 224.20-130 by the Reviser of Statutes under authority of KRS 7.136 .

224.460. Hearings — Appeals, procedure. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 22, § 16) was repealed by Acts 1972 (1st Ex. Sess.), ch. 3, § 93, effective January 1, 1973.

224.462. [Renumbered as KRS 224.20-710.]

Compiler’s Notes.

This section was renumbered as KRS 224.20-710 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.464. [Renumbered as KRS 224.20-715.]

Compiler’s Notes.

This section was renumbered as KRS 224.20-715 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.466. [Renumbered as KRS 224.20-720.]

Compiler’s Notes.

This section was renumbered as KRS 224.20-720 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.468. [Renumbered as KRS 224.20-725.]

Compiler’s Notes.

This section was renumbered as KRS 224.20-725 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.470. [Renumbered as KRS 224.20-730.]

Compiler’s Notes.

This section was renumbered as KRS 224.20-730 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.472. [Renumbered as KRS 224.20-735.]

Compiler’s Notes.

This section was renumbered as KRS 224.20-735 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.474. [Renumbered as KRS 224.20-740.]

Compiler’s Notes.

This section was renumbered as KRS 224.20-740 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.476. [Renumbered as KRS 224.20-750.]

Compiler’s Notes.

This section was renumbered as KRS 224.20-750 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.478. [Renumbered as KRS 224.20-755.]

Compiler’s Notes.

This section was renumbered as KRS 224.20-755 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.480. [Renumbered as KRS 224.20-745.]

Compiler’s Notes.

This section was renumbered as KRS 224.20-745 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.482. [Renumbered as KRS 224.20-760.]

Compiler’s Notes.

This section was renumbered as KRS 224.20-760 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.484. [Renumbered as KRS 224.20-765.]

Compiler’s Notes.

This section was renumbered as KRS 224.20-765 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.510. [Renumbered as KRS 224.18-200.]

Compiler’s Notes.

This section was renumbered as KRS 224.18-200 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.515. [Renumbered as KRS 224.18-210.]

Compiler’s Notes.

This section was renumbered as KRS 224.18-210 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.520. [Renumbered as KRS 224.18-220.]

Compiler’s Notes.

This section was renumbered as KRS 224.18-220 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.550. [Renumbered as KRS 224.20-300.]

Compiler’s Notes.

This section was renumbered as KRS 224.20-300 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.560. [Renumbered as KRS 224.20-310.]

Compiler’s Notes.

This section was renumbered as KRS 224.20-310 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.570. [Renumbered as KRS 224.20-320.]

Compiler’s Notes.

This section was renumbered as KRS 224.20-320 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.610. [Renumbered as KRS 224.18-100.]

Compiler’s Notes.

This section was renumbered as KRS 224.18-100 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.620. [Renumbered as KRS 224.18-110.]

Compiler’s Notes.

This section was renumbered as KRS 224.18-110 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.710. [Renumbered as KRS 224.30-100.]

Compiler’s Notes.

This section was renumbered as KRS 224.30-100 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.715. [Renumbered as KRS 224.30-105.]

Compiler’s Notes.

This section was renumbered as KRS 224.30-105 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.720. [Renumbered as KRS 224.30-110.]

Compiler’s Notes.

This section was renumbered as KRS 224.30-110 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.725. [Renumbered as KRS 224.30-115.]

Compiler’s Notes.

This section was renumbered as KRS 224.30-115 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.730. [Renumbered as KRS 224.30-120.]

Compiler’s Notes.

This section was renumbered as KRS 224.30-120 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.735. [Renumbered as KRS 224.30-125.]

Compiler’s Notes.

This section was renumbered as KRS 224.30-125 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.740. [Renumbered as KRS 224.30-130.]

Compiler’s Notes.

This section was renumbered as KRS 224.30-130 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.745. [Renumbered as KRS 224.30-135.]

Compiler’s Notes.

This section was renumbered as KRS 224.30-135 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.750. [Renumbered as KRS 224.30-140.]

Compiler’s Notes.

This section was renumbered as KRS 224.30-140 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.755. [Renumbered as KRS 224.30-145.]

Compiler’s Notes.

This section was renumbered as KRS 224.30-145 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.760. [Renumbered as KRS 224.30-150.]

Compiler’s Notes.

This section was renumbered as KRS 224.30-150 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.765. [Renumbered as KRS 224.30-155.]

Compiler’s Notes.

This section was renumbered as KRS 224.30-155 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.770. [Renumbered as KRS 224.30-160.]

Compiler’s Notes.

This section was renumbered as KRS 224.30-160 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.775. [Renumbered as KRS 224.30-165.]

Compiler’s Notes.

This section was renumbered as KRS 224.30-165 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.780. [Renumbered as KRS 224.30-170.]

Compiler’s Notes.

This section was renumbered as KRS 224.30-170 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.785. [Renumbered as KRS 224.30-175.]

Compiler’s Notes.

This section was renumbered as KRS 224.30-175 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.790. [Renumbered as KRS 224.30-180.]

Compiler’s Notes.

This section was renumbered as KRS 224.30-180 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.795. [Renumbered as KRS 224.30-185.]

Compiler’s Notes.

This section was renumbered as KRS 224.30-185 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.800. [Renumbered as KRS 224.30-190.]

Compiler’s Notes.

This section was renumbered as KRS 224.30-190 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.805. [Renumbered as KRS 224.30-195.]

Compiler’s Notes.

This section was renumbered as KRS 224.30-195 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.810. [Renumbered as KRS 224.60-100.]

Compiler’s Notes.

This section was renumbered as KRS 224.60-100 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.814. [Renumbered as KRS 224.60-105.]

Compiler’s Notes.

This section was renumbered as KRS 224.60-105 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.815. [Renumbered as KRS 224.60-110.]

Compiler’s Notes.

This section was renumbered as KRS 224.60-110 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.816. [Renumbered as KRS 224.60-115.]

Compiler’s Notes.

This section was renumbered as KRS 224.60-115 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.817. [Renumbered as KRS 224.60-120.]

Compiler’s Notes.

This section was renumbered as KRS 224.60-120 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.818. [Renumbered as KRS 224.60-125.]

Compiler’s Notes.

This section was renumbered as KRS 224.60-125 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.819. [Renumbered as KRS 224.60-130.]

Compiler’s Notes.

This section was renumbered as KRS 224.60-130 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.820. [Renumbered as KRS 224.60-135.]

Compiler’s Notes.

This section was renumbered as KRS 224.60-135 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.821. [Renumbered as KRS 224.60-140.]

Compiler’s Notes.

This section was renumbered as KRS 224.60-140 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.822. [Renumbered as KRS 224.60-145.]

Compiler’s Notes.

This section was renumbered as KRS 224.60-145 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.823. [Renumbered as KRS 224.60-150.]

Compiler’s Notes.

This section was renumbered as KRS 224.60-150 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.824. [Renumbered as KRS 224.60-155.]

Compiler’s Notes.

This section was renumbered as KRS 224.60-155 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.825. [Renumbered as KRS 224.60-160.]

Compiler’s Notes.

This section was renumbered as KRS 224.60-160 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.830. [Renumbered as KRS 224.43-010.]

Compiler’s Notes.

This section was renumbered as KRS 224.43-010 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.832. [Renumbered as KRS 224.10-620.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-620 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.833. [Renumbered as KRS 224.43-330.]

Compiler’s Notes.

This section was renumbered as KRS 224.43-330 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.835. [Renumbered as KRS 224.40-100.]

Compiler’s Notes.

This section was renumbered as KRS 224.40-100 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.837. [Renumbered as KRS 224.43-315.]

Compiler’s Notes.

This section was renumbered as KRS 224.43-315 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.840. [Renumbered as KRS 224.40-340.]

Compiler’s Notes.

This section was renumbered as KRS 224.40-340 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.842. [Renumbered as KRS 224.40-305.]

Compiler’s Notes.

This section was renumbered as KRS 224.40-305 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.844. [Renumbered as KRS 224.40-605.]

Compiler’s Notes.

This section was renumbered as KRS 224.40-605 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.846. [Renumbered as KRS 224.40-650.]

Compiler’s Notes.

This section was renumbered as KRS 224.40-650 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.847. [Renumbered as KRS 224.43-610.]

Compiler’s Notes.

This section was renumbered as KRS 224.43-610 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.848. [Renumbered as KRS 224.43-614.]

Compiler’s Notes.

This section was renumbered as KRS 224.43-614 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.849. [Renumbered as KRS 224.43-335.]

Compiler’s Notes.

This section was renumbered as KRS 224.43-335 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.850. [Renumbered as KRS 224.01-300.]

Compiler’s Notes.

This section was renumbered as KRS 224.01-300 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.852. [Renumbered as KRS 224.01-310.]

Compiler’s Notes.

This section was renumbered as KRS 224.01-310 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.855. [Renumbered as KRS 224.40-310.]

Compiler’s Notes.

This section was renumbered as KRS 224.40-310 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.856. [Renumbered as KRS 224.40-315.]

Compiler’s Notes.

This section was renumbered as KRS 224.40-315 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.8565. [Renumbered as KRS 224.40-320.]

Compiler’s Notes.

This section was renumbered as KRS 224.40-320 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.857. [Renumbered as KRS 224.43-020.]

Compiler’s Notes.

This section was renumbered as KRS 224.43-020 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.860. [Renumbered as KRS 224.40-325.]

Compiler’s Notes.

This section was renumbered as KRS 224.40-325 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.861. [Renumbered as KRS 224.40-330.]

Compiler’s Notes.

This section was renumbered as KRS 224.40-330 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.862. [Renumbered as KRS 224.46-505.]

Compiler’s Notes.

This section was renumbered as KRS 224.46-505 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.864. [Renumbered as KRS 224.46-510.]

Compiler’s Notes.

This section was renumbered as KRS 224.46-510 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.865. [Renumbered as KRS 224.50-130.]

Compiler’s Notes.

This section was renumbered as KRS 224.50-130 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.866. [Renumbered as KRS 224.46-520.]

Compiler’s Notes.

This section was renumbered as KRS 224.46-520 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.867. [Renumbered as KRS 224.46-530.]

Compiler’s Notes.

This section was renumbered as KRS 224.46-530 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.868. [Renumbered as KRS 224.50-760.]

Compiler’s Notes.

This section was renumbered as KRS 224.50-760 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.869. [Renumbered as KRS 224.46-540.]

Compiler’s Notes.

This section was renumbered as KRS 224.46-540 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.870. Operational permit. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 55, § 3) was repealed by Acts 1978, ch. 113, § 15, effective June 17, 1978.

224.871. [Renumbered as KRS 224.46-550.]

Compiler’s Notes.

This section was renumbered as KRS 224.46-550 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.873. [Renumbered as KRS 224.46-560.]

Compiler’s Notes.

This section was renumbered as KRS 224.46-560 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.874. [Renumbered as KRS 224.46-570.]

Compiler’s Notes.

This section was renumbered as KRS 224.46-570 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.876. [Renumbered as KRS 224.46-580.]

Compiler’s Notes.

This section was renumbered as KRS 224.46-580 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.877. [Renumbered as KRS 224.01-400.]

Compiler’s Notes.

This section was renumbered as KRS 224.01-400 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.880. [Renumbered as KRS 224.842.]

Compiler’s Notes.

This section was renumbered as KRS 224.842 in 1982 and was subsequently renumbered as KRS 224.40-305 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.882. [Renumbered as KRS 224.844.]

Compiler’s Notes.

This section was renumbered as KRS 224.844 in 1982 and was subsequently renumbered as KRS 224.40-605 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.884. [Renumbered as KRS 224.846.]

Compiler’s Notes.

This section was renumbered as KRS 224.846 in 1982 and was subsequently renumbered as KRS 224.40-650 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.885. [Renumbered as KRS 224.43-070.]

Compiler’s Notes.

This section was renumbered as KRS 224.43-070 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.886. [Renumbered as KRS 224.43-310.]

Compiler’s Notes.

This section was renumbered as KRS 224.43-310 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.8863. [Renumbered as KRS 224.43-320.]

Compiler’s Notes.

This section was renumbered as KRS 224.43-320 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.8865. [Renumbered as KRS 224.18-900.]

Compiler’s Notes.

This section was renumbered as KRS 224.18-900 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.887. [Renumbered as KRS 224.43-340.]

Compiler’s Notes.

This section was renumbered as KRS 224.43-340 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.888. [Renumbered as KRS 224.43-345.]

Compiler’s Notes.

This section was renumbered as KRS 224.43-345 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.889. Implementation of approved plan. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 74, § 25, effective July 15, 1982) was repealed by Acts 1984, ch. 398, § 9, effective July 13, 1984.

224.8893. [Renumbered as KRS 224.43-350.]

Compiler’s Notes.

This section was renumbered as KRS 224.43-350 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.890. Permits for generation, storage, treatment, recycling or disposal of hazardous wastes — Bond. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 55, § 5; 1978, ch. 113, § 11, effective June 17, 1978) was repealed by Acts 1980, ch. 264, § 14, effective July 15, 1980. For present law, see KRS 224.46-510 .

224.8903. [Renumbered as KRS 224.43-360.]

Compiler’s Notes.

This section was renumbered as KRS 224.43-360 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.8905. [Renumbered as KRS 224.43-370.]

Compiler’s Notes.

This section was renumbered as KRS 224.43-370 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.8907. [Renumbered as KRS 143.023 and 143A.037.]

Compiler’s Notes.

This section was renumbered as KRS 143.023 and 143A.037 , effective July 10, 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.891. Injunctive relief. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 113, § 13, effective June 17, 1978) was repealed by Acts 1980, ch. 264, § 14 effective July 15, 1980. For present law see KRS 224.46-520 .

224.8913. [Renumbered as KRS 224.43-380.]

Compiler’s Notes.

This section was renumbered as KRS 224.43-380 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.892. [Renumbered as KRS 224.43-710.]

Compiler’s Notes.

This section was renumbered as KRS 224.43-710 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.893. [Renumbered as KRS 224.43-720.]

Compiler’s Notes.

This section was renumbered as KRS 224.43-720 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.894. [Renumbered as KRS 224.43-730.]

Compiler’s Notes.

This section was renumbered as KRS 224.43-730 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.895. [Renumbered as KRS 224.50-545.]

Compiler’s Notes.

This section was renumbered as KRS 224.50-545 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.896. [Renumbered as KRS 224.43-810.]

Compiler’s Notes.

This section was renumbered as KRS 224.43-810 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.897. [Renumbered as KRS 224.43-815.]

Compiler’s Notes.

This section was renumbered as KRS 224.43-815 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.900. Licensing of hauler. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 55, § 6; 1974, ch. 74, Art. III, §§ 1, 13) was repealed by Acts 1978, ch. 113, § 15, effective June 17, 1978.

224.902. [Renumbered as KRS 224.10-650.]

Compiler’s Notes.

This section was renumbered as KRS 224.10-650 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.903. [Renumbered as KRS 224.46-590.]

Compiler’s Notes.

This section was renumbered as KRS 224.46-590 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.905. Purpose. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 119, § 2, effective June 17, 1978) was repealed by Acts 1982, ch. 22, § 3, effective July 15, 1982.

224.910. Definitions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 119, § 3, effective June 17, 1978) was repealed by Acts 1982, ch. 22, § 3, effective July 15, 1982.

224.915. Department for natural resources and environmental protection to administer. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 119, § 4, effective June 17, 1978) was repealed by Acts 1982, ch. 22, § 3, effective July 15, 1982.

224.920. Duties of the department. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 119, § 5, effective June 17, 1978) was repealed by Acts 1982, ch. 22, § 3, effective July 15, 1982.

224.925. Advice by environmental commission. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 119, § 6, effective June 17, 1978) was repealed by Acts 1982, ch. 22, § 3, effective July 15, 1982.

224.930. Programs to be provided. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 119, § 7, effective June 17, 1978) was repealed by Acts 1982, ch. 22, § 3, effective July 15, 1982.

224.935. Litter receptacles. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 119, § 8, effective June 17, 1978) was repealed by Acts 1982, ch. 22, § 3, effective July 15, 1982.

224.940. Litter bags. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 119, § 9, effective June 17, 1978) was repealed by Acts 1982, ch. 22, § 3, effective July 15, 1982.

224.945. Anti-litter personnel. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 119, § 10, effective June 17, 1978) was repealed by Acts 1982, ch. 22, § 3, effective July 15, 1982.

224.950. Posting of penalties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 119, § 11, effective June 17, 1978) was repealed by Acts 1982, ch. 22, § 3, effective July 15, 1982.

224.955. Anti-litter assessment against seller of covered item — “Seller” and “covered item” defined. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 119, § 12, effective June 17, 1978) was repealed by Acts 1982, ch. 22, § 3, effective July 15, 1982.

224.960. Penalty assessments. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 119, § 15, effective June 17, 1978) was repealed by Acts 1982, ch. 22, § 3, effective July 15, 1982.

224.965. Resource conservation recovery and beautification fund. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 119, § 13, effective June 17, 1978) was repealed by Acts 1982, ch. 22, § 3, effective July 15, 1982.

224.970. Short title. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 119, § 1, effective June 17, 1978) was repealed by Acts 1982, ch. 22, § 3, effective July 15, 1982.

224.980. [Renumbered as KRS 224.46-310.]

Compiler’s Notes.

This section was renumbered as KRS 224.46-310 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.982. [Renumbered as KRS 224.46-315.]

Compiler’s Notes.

This section was renumbered as KRS 224.46-315 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.984. [Renumbered as KRS 224.46-320.]

Compiler’s Notes.

This section was renumbered as KRS 224.46-320 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.986. [Renumbered as KRS 224.46-325.]

Compiler’s Notes.

This section was renumbered as KRS 224.46-325 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.990. Penalties — Injunctions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1950, ch. 69, § 9) was repealed by Acts 1972 (1st Extra. Sess.) ch. 3, § 93, effective January 1, 1973.

224.993. Penalties. [Repealed.]

Compiler’s Notes.

This section (Acts 1972 (1st Ex. Sess.), ch. 3, § 92) was repealed by Acts 1974, ch. 355, § 12.

224.991. Penalties for violations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1966, ch. 22, § 17) was repealed by Acts 1972 (1st Extra. Sess.) ch. 3, § 93, effective January 1, 1973.

224.992. [Renumbered as KRS 211.995.]

Compiler’s Notes.

This section was renumbered as KRS 211.995 in 1982 by the Reviser of Statutes under authority of KRS 7.136 .

224.994. [Renumbered as KRS 224.99-010.]

Compiler’s Notes.

This section was renumbered as KRS 224.99-010 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.995. [Renumbered as KRS 224.99-020.]

Compiler’s Notes.

This section was renumbered as KRS 224.99-020 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

224.996. Penalties. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 99, § 18; 1976, ch. 289, § 2; 1978, ch. 113, § 13, effective June 17, 1978; 1980, ch. 196, § 1, effective July 15, 1980; 1980, ch. 264, § 13, effective July 15, 1980) was repealed by Acts 1982, ch. 74, § 27, effective July 15, 1982.

224.997. [Renumbered as KRS 224.99-030.]

Compiler’s Notes.

This section was renumbered as KRS 224.99-030 in 1991 by the Reviser of Statutes under authority of KRS 7.136 .

SUBCHAPTER 01. Generalities

224.01-010. Definitions for chapter. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-010 .

224.01-020. Agricultural warehousing sites cleanup fund. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-020 .

224.01-030. Brownfield redevelopment fund. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-030 .

224.01-040. Evidentiary privilege for environmental audit reports — Exceptions — Restriction on civil penalties. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-040 .

224.01-050. Failure to enforce law or regulations — Demands for enforcement. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-050 .

224.01-060. Pollution control law supplements other laws. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-060 .

224.01-070. Civil liability of persons polluting waters — State may sue. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-070 .

Environmental Quality Commission

224.01-100. Environmental Quality Commission: Membership, terms, compensation, officers, meetings. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-100 .

224.01-105. Eligibility limitations on commission membership. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-105 .

224.01-110. Powers and duties of commission. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-110 .

224.01-115. Recommendation of adoption or rejection of proposals — Adoption upon recommendation of rejection, statement of reason. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-115 .

Environmental Trust Fund

224.01-200. Environmental trust fund created. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-200 .

224.01-205. Uses for environmental trust fund. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-205 .

224.01-210. Environmental Board. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-210 .

224.01-215. Powers and duties of Environmental Board. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-215 .

224.01-220. Limitation on use of fund. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-220 .

Pollution Control

224.01-300. Pollution control facility — Definitions. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-300 .

224.01-310. Tax exemption certificate application, issuance, revocation, modification — Appeal. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-310 .

Environmental Emergencies

224.01-400. Reportable quantities and release notification requirements for hazardous substances, pollutants, or contaminants — Variation of requirements by administrative regulations — Emergency plan — Powers of cabinet — Remedial action to restore environment — Lien of cabinet for costs of cleanup — Liability of financial institution acquiring property or serving as fiduciary. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-400 .

224.01-405. Corrective action for release of petroleum or petroleum product from a source other than a petroleum storage tank. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-405 .

224.01-410. Legislative findings regarding methamphetamine contamination — Definitions — Decontamination standards — Procedures for assessment — Tiered response system — Certification by owner that property cleaned and standard met — Certification of decontamination contractors — Posting methamphetamine contamination notice — Written notice of property contamination to buyer or lessee — Integrated state effort — Federal funding to be pursued. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-410 .

224.01-415. Brownfield Redevelopment Program — Conditions under which property owner not liable for corrective action — Administrative regulations. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-415 .

No Further Remediation Letter

224.01-450. Legislative intent regarding issuance of letter. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-450 .

224.01-455. Definitions for KRS 224.1-450 to 224.1-465. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-455 .

224.01-460. Letter — Contents — Issuance. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-460 .

224.01-465. Effect of letter — Limitations — Contents — Application — Voidable circumstances — Recording. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-465 .

224.01-500. Kentucky Recycling Brokerage Authority — Powers — Duties — Brokerage fee — Reports. [Repealed].

Compiler’s Notes.

This section (Repealed, reenacted, and amend. Acts 1996, ch. 262, § 2, effective July 15, 1996) was repealed by Acts 1998, ch. 61, § 3, effective July 15, 1998.

Legislative Research Commission Note.

(7/15/98). Under KRS 446.260 , the repeal of this section in 1998 Ky. Acts ch. 61 prevails over its amendment in 1998 Ky. Acts chs. 67 and 69.

Voluntary Environmental Remediation

224.01-510. Legislative findings — Inapplicability to licensed radioactive materials facilities. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-510 .

224.01-512. Definitions for KRS 224.1-510 to 224.1-532. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-512 .

224.01-514. Voluntary Environmental Remediation Program — Application for entry. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-514 .

224.01-516. Action on application — Reapplication. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-516 .

224.01-518. Voluntary remediation agreed order. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-518 .

224.01-520. Site characterization report — Corrective action plan. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-520 .

224.01-522. Cabinet’s review and action on corrective action plan — Right of appeal of denial. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-522 .

224.01-524. Notification to local governments and public of proposed corrective action plan — Comment period — Public hearing. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-524 .

224.01-526. Corrective action plan completion report — Review by cabinet — Issuance and effect of covenant not to sue. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-526 .

224.01-528. Final actions by cabinet that are appealable. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-528 .

224.01-530. Screening levels relating to remediation — Tiered remediation management — Administrative regulations. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-530 .

224.01-532. Implementation of KRS 224.1-510 to 224.1-532 — Authority to promulgate administrative regulations. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 224.1-532 .

SUBCHAPTER 1. Generalities

224.1-010. Definitions for chapter.

As used in this chapter unless the context clearly indicates otherwise:

  1. “Air contaminant” includes smoke, dust, soot, grime, carbon, or any other particulate matter, radioactive matter, noxious acids, fumes, gases, odor, vapor, or any combination thereof;
  2. “Air contaminant source” means any and all sources of emission of air contaminants, whether privately or publicly owned or operated. Without limiting the generality of the foregoing, this term includes all types of business, commercial and industrial plants, works, shops, and stores, and heating and power plants and stations, buildings and other structures of all types, including single and multiple family residences, apartments, houses, office buildings, public buildings, hotels, restaurants, schools, hospitals, churches, and other institutional buildings, automobiles, trucks, tractors, buses and other motor vehicles, garages and vending and service locations and stations, railroad locomotives, ships, boats and other waterborne craft, portable fuel-burning equipment, incinerators of all types (indoor and outdoor), refuse dumps and piles, and all stack and other chimney outlets from any of the foregoing;
  3. “Air pollution” means the presence in the outdoor atmosphere of one (1) or more air contaminants in sufficient quantities and of such characteristics and duration as is or threatens to be injurious to human, plant, or animal life, or to property, or which unreasonably interferes with the comfortable enjoyment of life or property;
  4. “Closure” means the time at which a waste treatment, storage, or disposal facility permanently ceases to accept wastes, and includes those actions taken by the owner or operator of the facility to prepare the site for post-closure monitoring and maintenance or to make it suitable for other uses;
  5. “Compost” means solid waste which has undergone biological decomposition of organic matter, been disinfected using composting or similar technologies, been stabilized to a degree which is potentially beneficial to plant growth and which is approved for use or sale as a soil amendment, artificial topsoil, growing medium amendment, or other similar uses;
  6. “Composting” means the process by which biological decomposition of organic solid waste is carried out under controlled aerobic conditions, and which stabilizes the organic fraction into a material which can easily and safely be stored, handled, and used in an environmentally acceptable manner:
    1. “Composting” may include a process which creates an anaerobic zone within the composting material;
    2. “Composting” does not include simple exposure of solid waste under uncontrolled conditions resulting in natural decay;
  7. “Demonstration” means the initial exhibition of a new technology, process or practice or a significantly new combination or use of technologies, processes or practices, subsequent to the development stage, for the purpose of proving technological feasibility and cost effectiveness;
  8. “Cabinet” means the Energy and Environment Cabinet;
  9. “Disposal” means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any waste into or on any land or water so that such waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters;
  10. “District” means an air pollution control district as provided for in KRS Chapter 77;
  11. “Effluent limitations” means any restrictions or prohibitions established under state law which include, but are not limited to, effluent limitations, standards of performance for new sources, and toxic effluent standards on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged into waters;
  12. “Generator” means any person, by site, whose act or process produces waste;
  13. “Materials recovery facility” means a solid waste management facility that provides for the extraction from solid waste of recyclable materials, materials suitable for use as a fuel or soil amendment, or any combination of those materials;
  14. “Municipal solid waste disposal facility” means any type of waste site or facility where the final deposition of any amount of municipal solid waste occurs, whether or not mixed with or including other waste allowed under Subtitle D of the Federal Resource Conservation and Recovery Act of 1976, as amended, and includes, but is not limited to, incinerators and waste-to-energy facilities that burn municipal solid waste, and contained and residential landfills, but does not include a waste site or facility which is operated exclusively by a solid waste generator on property owned by the solid waste generator which accepts only industrial solid waste from the solid waste generator or industrial solid waste generated at another facility owned and operated by the generator or wholly-owned subsidiary, or a medical waste incinerator which is owned, operated, and located on the property of a hospital or university which is regulated by the cabinet and used for the purpose of treatment, prior to landfill, of medical waste received from the generator exclusively or in combination with medical waste generated by professionals or facilities licensed or regulated or operated by the Commonwealth;
  15. “Municipal solid waste reduction” means source reduction, waste minimization, reuse, recycling, composting, and materials recovery;
  16. “Person” means an individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, federal agency, state agency, city, commission, political subdivision of the Commonwealth, or any interstate body;
  17. “Post-closure monitoring and maintenance” means the routine care, maintenance, and monitoring of a solid waste or hazardous waste treatment, storage, or disposal facility following closure of the facility;
  18. “Publicly owned treatment works” means any device or system used in the treatment (including recycling and recovery) of municipal sewage or industrial wastes of a liquid nature which is owned by the Commonwealth or a political subdivision of the Commonwealth;
  19. “Recovered material” means those materials, including but not limited to compost, which have known current use, reuse, or recycling potential, which can be feasibly used, reused, or recycled, and which have been diverted or removed from the solid waste stream for sale, use, reuse, or recycling, whether or not requiring subsequent separation and processing, but does not include materials diverted or removed for purposes of energy recovery or combustion except refuse-derived fuel (RDF), which shall be credited as a recovered material in an amount equal to that percentage of the municipal solid waste received on a daily basis at the processing facility and processed into RDF; but not to exceed fifteen percent (15%) of the total amount of the municipal solid waste received at the processing facility on a daily basis. Notwithstanding any provision of law to the contrary, tire-derived fuel, as defined in subsection (53) of this section, shall be considered a recovered material;
  20. “Recovered material processing facility” means a facility engaged solely in the storage, processing, and resale or reuse of recovered material, but does not mean a solid waste management facility if solid waste generated by a recovered material processing facility is managed pursuant to this chapter and administrative regulations adopted by the cabinet;
  21. “Recycling” means any process by which materials which would otherwise become solid waste are collected, separated, or processed and reused or returned to use in the form of raw materials or products, including refuse-derived fuel when processed in accordance with administrative regulations established by the cabinet, but does not include the incineration or combustion of materials for the recovery of energy;
  22. “Refuse-derived fuel” means a sized, processed fuel product derived from the extensive separation of municipal solid waste, which includes the extraction of recoverable materials for recycling and the removal of nonprocessables such as dirt and gravel prior to processing the balance of the municipal solid waste into the refuse-derived fuel product;
  23. “Secretary” means the secretary of the Energy and Environment Cabinet;
  24. “Sewage system” means individually or collectively those constructions or devices used for collecting, pumping, treating, and disposing of liquid or waterborne sewage, industrial wastes, or other wastes;
  25. “Termination” means the final actions taken by the cabinet as to a solid waste or hazardous waste treatment, storage, or disposal facility when formal responsibilities for post-closure monitoring and maintenance cease;
  26. “Waste site or facility” means any place where waste is managed, processed, or disposed of by incineration, landfilling, or any other method, but does not include a container located on property where solid waste is generated and which is used solely for the purpose of collection and temporary storage of that solid waste prior to off-site disposal, or a recovered material processing facility, or the combustion of processed waste in a utility boiler;
  27. “Storage” means the containment of wastes, either on a temporary basis or for a period of years, in such a manner as not to constitute disposal of such wastes;
  28. “Transportation” means any off-site movement of waste by any mode, and any loading, unloading, or storage incidental thereto;
  29. “Treatment” means any method, technique, or process, including neutralization, designed to change the physical, chemical, or biological character or composition of any waste so as to neutralize such waste or so as to render such waste nonhazardous, safer for transport, amenable for recovery, amenable for storage, or reduced in volume. Such term includes any activity or processing designed to change the physical form or chemical composition of hazardous waste so as to render it nonhazardous;
  30. “Waste” means:
    1. “Solid waste” means any garbage, refuse, sludge, and other discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial, mining (excluding coal mining wastes, coal mining by-products, refuse, and overburden), agricultural operations, and from community activities, but does not include those materials including, but not limited to, sand, soil, rock, gravel, or bridge debris extracted as part of a public road construction project funded wholly or in part with state funds, recovered material, tire-derived fuel, special wastes as designated by KRS 224.50-760 , solid or dissolved material in domestic sewage, manure, crops, crop residue, or a combination thereof which are placed on the soil for return to the soil as fertilizers or soil conditioners, or solid or dissolved material in irrigation return flows or industrial discharges which are point sources subject to permits under Section 402 of the Federal Water Pollution Control Act, as amended (86 Stat. 880), or source, special nuclear, or by-product material as defined by the Atomic Energy Act of 1954, as amended (68 Stat. 923):
      1. “Household solid waste” means solid waste, including garbage and trash generated by single and multiple family residences, hotels, motels, bunkhouses, ranger stations, crew quarters, and recreational areas such as picnic areas, parks, and campgrounds, but it does not include tire- derived fuel;
      2. “Commercial solid waste” means all types of solid waste generated by stores, offices, restaurants, warehouses, and other service and nonmanufacturing activities, excluding tire-derived fuel and household and industrial solid waste;
      3. “Industrial solid waste” means solid waste generated by manufacturing or industrial processes that is not a hazardous waste or a special waste as designated by KRS 224.50-760 , including, but not limited to, waste resulting from the following manufacturing processes: electric power generation; fertilizer or agricultural chemicals; food and related products or by-products; inorganic chemicals; iron and steel manufacturing; leather and leather products; nonferrous metals manufacturing/foundries; organic chemicals; plastics and resins manufacturing; pulp and paper industry; rubber and miscellaneous plastic products, except tire-derived fuel; stone, glass, clay, and concrete products; textile manufacturing; transportation equipment; and water treatment; and
      4. “Municipal solid waste” means household solid waste and commercial solid waste; and
    2. “Hazardous waste” means any discarded material or material intended to be discarded or substance or combination of such substances intended to be discarded, in any form which because of its quantity, concentration or physical, chemical or infectious characteristics may cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness or pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed;
  31. “Waste management district” means any county or group of counties electing to form under the provisions of KRS Chapter 109 and operate in conformance with the provisions of KRS Chapter 109 and with Section 4006, Resource Conservation and Recovery Act of 1976, as amended (Public Law 94-580);
  32. “Water” or “waters of the Commonwealth” means and includes any and all rivers, streams, creeks, lakes, ponds, impounding reservoirs, springs, wells, marshes, and all other bodies of surface or underground water, natural or artificial, situated wholly or partly within or bordering upon the Commonwealth or within its jurisdiction;
  33. “Water pollution” means the alteration of the physical, thermal, chemical, biological, or radioactive properties of the waters of the Commonwealth in such a manner, condition, or quantity that will be detrimental to the public health or welfare, to animal or aquatic life or marine life, to the use of such waters as present or future sources of public water supply or to the use of such waters for recreational, commercial, industrial, agricultural, or other legitimate purposes;
  34. “Pollutant” means and includes dredged spoil, solid waste, incinerator residue, sewage, sewage sludge, garbage, chemical, biological or radioactive materials, heat, wrecked or discarded equipment, rock, sand, soil, industrial, municipal or agricultural waste, and any substance resulting from the development, processing, or recovery of any natural resource which may be discharged into water;
  35. “NPDES” means National Pollutant Discharge Elimination System;
  36. “Manifest” means the form used for identifying the quantity, composition, and the origin, routing, and destination of waste during its transportation from the point of generation to the point of disposal, treatment, or storage;
  37. “Open dump” means any facility or site for the disposal of solid waste which does not have a valid permit issued by the cabinet or does not meet the environmental performance standards established under regulations promulgated by the cabinet;
  38. “Solid waste management” means the administration of solid waste activities: collection, storage, transportation, transfer, processing, treatment, and disposal, which shall be in accordance with a cabinet-approved county or multicounty solid waste management plan;
  39. “Solid waste management area” or “area” means any geographical area established or designated by the cabinet in accordance with the provisions of this chapter;
  40. “Solid waste management facility” means any facility for collection, storage, transportation, transfer, processing, treatment, or disposal of solid waste, whether such facility is associated with facilities generating such wastes or otherwise, but does not include a container located on property where solid waste is generated and which is used solely for the purpose of collection and temporary storage of that solid waste prior to off-site disposal, or a recovered material processing facility which is subject to regulation pursuant to the chapter for control of environmental impacts and to prevent any public nuisance;
  41. “Hazardous constituent” shall conform to the requirements of the Resource Conservation and Recovery Act (RCRA), as amended;
  42. “Land disposal” includes but is not limited to any placement of hazardous waste in a landfill, surface impoundment, waste pile, injection well, land treatment facility, salt dome formation, salt bed formation, or underground mine or cave;
  43. “Key personnel” means an officer, partner, director, manager, or shareholder of five percent (5%) or more of stock or financial interest in a corporation, partnership, or association or parent, subsidiary, or affiliate corporation and its officers, directors, or shareholders of five percent (5%) or more of stock or financial interest;
  44. “Universal collection” means a municipal solid waste collection system which is established by ordinance and approved by the cabinet and requires access for each household or solid waste generator in a county. A commercial or industrial entity which transports or contracts for the transport of the municipal solid waste it generates or which operates a solid waste management facility for its exclusive use may be excluded from participation;
  45. “Governing body” means a county, a waste management district, an entity created pursuant to the Interlocal Cooperation Act, a taxing district created pursuant to the provisions of KRS 65.180 to 65.192 , a special district created pursuant to the provisions of KRS 65.160 to 65.176 , or counties acting under contract pursuant to KRS 109.082 ;
  46. “Convenience center” means a facility that is manned during operating hours for the collection and subsequent transportation of municipal solid wastes;
  47. “Transfer facility” means any transportation related facility including loading docks, parking areas, and other similar areas where shipments of solid waste are held or transferred during the normal course of transportation;
  48. “Collection box” means an unmanned receptacle utilized to collect municipal solid waste;
  49. “Newsprint” means that class or kind of paper chiefly used for printing newspapers and weighing more than twenty-four and one-half (24-1/2) pounds, but less than thirty-five (35) pounds for five hundred (500) sheets of paper two (2) feet by three (3) feet in size, on rolls that are not less than thirteen (13) inches wide and twenty-eight (28) inches in diameter and having a brightness of less than sixty (60);
  50. “Postconsumer waste paper” means discarded paper after it has served its intended use by a publisher;
  51. “Publisher” means a person engaged in the business of publishing newspapers, advertisement flyers, telephone books, and other printed material;
  52. “Recycled content” means the proportion of fiber in newsprint that is derived from postconsumer waste paper;
  53. “Tire-derived fuel” or “TDF” means a product made from waste tires to the exact specifications of a system designed to accept tire-derived fuel as a primary or supplemental fuel source, that have been reduced to particle sizes not greater than two (2) inches by two (2) inches and that is destined for transportation from the waste tire processor for use as a fuel. “Tire-derived fuel” shall not mean refuse-derived fuel; and
  54. “Industrial energy facility” means a facility that produces transportation fuels, synthetic natural gas, chemicals, or electricity through a gasification process using coal, coal waste, or biomass resources, and costing in excess of seven hundred fifty million dollars ($750,000,000) at the time of construction.

HISTORY: Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 1; 1974, ch. 74, Art. III, §§ 1, 13(2); 1974, ch. 355, § 1; 1978, ch. 113, § 1, effective June 17, 1978; 1978, ch. 257, § 4, effective June 17, 1978; 1980, ch. 264, § 3, effective July 15, 1980; 1980, ch. 284, § 1, effective July 15, 1980; 1982, ch. 74, § 18, effective July 15, 1982; 1984, ch. 111, § 182, effective July 13, 1984; 1986, ch. 172, § 1, effective July 15, 1986; 1986, ch. 237, § 1, effective July 15, 1986; 1991 (1st Ex. Sess.), ch. 12, § 1, effective February 26, 1991; 1994, ch. 500, § 1, effective July 15, 1994; 2007, ch. 30, § 1, effective June 26, 2007; 2007, ch. 73, § 1, effective June 26, 2007; 2010, ch. 24, § 344, effective July 15, 2010; 2017 ch. 117, § 19, effective June 29, 2017.

Compiler’s Notes.

KRS 224.01-010 formerly codified as KRS 224.005 .

This section was formerly compiled as KRS 224.01-010 .

The federal Atomic Energy Act of 1954, referred to in subdivision 31(a), is compiled as 42 USCS § 2011 et seq. Section 402 of the Federal Water Pollution Control Act (Clean Water Act), referred to in subdivision (31)(a), is compiled as 33 USCS § 1342. Section 4006 of the Resource Conservation and Recovery Act of 1976, referred to in subdivision (32), is compiled as 42 USCS § 6946. The Resource Conservation and Recovery Act, referred to generally in subsection (42), is compiled as 42 USCS §§ 6901 et seq.

Section 3 of Acts 1994, ch. 501, provides that the 1994 amendment to this section “shall be effective for tax periods beginning on or after August 1, 1994.”

Legislative Research Commission Notes.

(6/29/2017). Under the authority of KRS 7.136(1)(h), a reference to “subsection (54) of this section” in subsection (19) of this statute has been changed to “subsection (53)” by the Reviser of Statutes following the enactment of 2017 Ky. Acts ch. 117, sec. 19, which deleted a subsection in KRS 224.1-010 and renumbered the subsequent subsections, but overlooked the internal reference in the existing language.

NOTES TO DECISIONS

1.Electro-magnetic Field.

The electro-magnetic field emitted from electric transmission lines did not constitute a contaminant within the meaning of this section. Duerson v. East Kentucky Power Coop., Inc., 843 S.W.2d 340, 1992 Ky. App. LEXIS 238 (Ky. Ct. App. 1992).

2.Waste Site.

Pile of concrete waste to which additional solid waste items, including several appliances, rugs, and gravel, were added after a new owner purchased the property where the pile was located, constituted a “waste site” as defined in KRS 224.01-010 (27) and an “open dump” as defined in (38). Astro, Inc. v. Envtl. & Pub. Prot. Cabinet, 2007 Ky. App. LEXIS 175 (Ky. Ct. App. June 8, 2007).

Opinions of Attorney General.

This section and KRS 224.20-110 do not serve as specific waivers of the Commonwealth’s immunity, but rather refer to the duty of state agencies to comply with the state air pollution standards and regulations. OAG 75-513 .

The Northern Kentucky Solid Waste Management Area is a cooperative arrangement between three units of government created under KRS 65.210 - 65.300 ; it can incorporate and enter into contracts as a separate entity, if permitted by the interlocal agreement itself. OAG 93-67 .

Research References and Practice Aids

Kentucky Law Journal.

Woodroof, Pollution Control, Present and Potential: A Jurisprudential Evaluation of Cost Allocation as an Alternative, 61 Ky. L.J. 22 (1972).

Begley and Williams, Coal Mine Water Pollution: An Acid Problem with Murky Solutions, 64 Ky. L.J. 506 (1975-76).

Stephens, Commencing the Decade With Environmental Reform: The 1980 Kentucky General Assembly Implements the Resource Conservation and Recovery Act of 1976, 69 Ky. L.J. 227 (1980-81).

Cox, What May States Do About Out-of-State Waste in Light of Recent Supreme Court Decisions Applying the Dormant Commerce Clause? Kentucky As Case Study in the Waste Wars, 83 Ky. L.J. 551 (1994-95).

Northern Kentucky Law Review.

Comment, The Trouble with “Bubbles”: Ramifications of Agency Delay in Approving SIP Revisions, 17 N. Ky. L. Rev. 571 (1990).

Reynolds, Who’s Going to Regulate NORM?, 22 N. Ky. L. Rev. 5 (1995).

Sanders, Kentucky Adopts Risk Assessment for Closing Hazardous Waste Units, 22 N. Ky. L. Rev. 37 (1995).

224.1-020. Agricultural warehousing sites cleanup fund. [Repealed]

HISTORY: Enact. Acts 2001, ch. 128, § 16, effective June 21, 2001; repealed by 2018 ch. 199, § 37, effective July 14, 2018.

224.1-030. Brownfield redevelopment fund.

  1. The brownfield redevelopment fund shall be established in the State Treasury as an interest-bearing restricted fund and shall be administered by the cabinet.
  2. The fund shall be a dedicated fund, and all moneys in the fund shall be used solely to provide financial assistance to governmental agencies to perform brownfield assessments, corrective action, and demolition or other similar actions necessary to prepare the property for a beneficial use.
  3. The financial assistance which may be provided to governmental agencies from the fund shall be limited to the following forms:
    1. Grants; and
    2. Loans that are made at or below market interest rates, including interest-free loans, at terms not to exceed ten (10) years with all payments of principal and interest on all loans credited to the fund.
  4. The cabinet may promulgate administrative regulations setting forth procedures for providing financial assistance as set forth in subsection (3) of this section.
  5. The brownfield redevelopment fund shall be established, maintained, and credited with funds received from appropriations of the General Assembly, repayments of loans and interest thereon, interest derived from fund principal, grants or donations received, and payments made to the fund for any lawful purpose. Notwithstanding KRS 45.229 , any moneys remaining in the fund at the close of a fiscal year shall not lapse but shall be carried forward into the succeeding fiscal year to be used for the purposes set forth in this section.
  6. The cabinet may enter into any necessary or required agreement with federal or state agencies or persons to carry out the provision of this section. All state agencies shall cooperate with the cabinet and share information with the cabinet as appropriate.
  7. Any moneys in the fund are hereby appropriated for the purposes set forth in this section.

History. Enact. Acts 2009, ch. 30, § 1, effective June 25, 2009.

Compiler’s Notes.

This section was formerly compiled as KRS 224.01-030 .

224.1-040. Evidentiary privilege for environmental audit reports — Exceptions — Restriction on civil penalties.

  1. As used in this section:
    1. “Environmental audit” means a voluntary, internal, and comprehensive evaluation of one (1) or more facilities or an activity at one (1) or more facilities regulated under this chapter, or federal, regional, or local counterparts or extensions thereof, or of management systems related to that facility or activity, that is designed to identify and prevent noncompliance and to improve compliance with statutory or regulatory requirements. An environmental audit may be conducted by the owner or operator, by the owner’s or operator’s employees, or by independent contractors.
    2. “Environmental audit report” means a set of documents, each labeled “environmental audit report: privileged document” and prepared as a result of an environmental audit. An environmental audit report may include field notes and records of observations, findings, suggestions, conclusions, drafts, memoranda, drawings, photographs, computer-generated or electronically recorded information, maps, charts, graphs, and surveys, provided the supporting information is collected or developed for the primary purpose and in the course of an environmental audit. An environmental audit report, when completed, shall have three (3) components:
      1. An audit report prepared by an auditor, which shall include the scope and date of the audit and the information gained in the audit together with exhibits and appendices, and may include conclusions and recommendations;
      2. Memoranda and documents analyzing part or all of the audit report and discussing implementation issues; and
      3. An audit implementation plan that addresses correcting past noncompliance, improving current compliance, and preventing future noncompliance.
    3. “Voluntary disclosure” means the prompt reporting to the cabinet by the owner or operator of a facility of the voluntary discovery of a violation of this chapter or the administrative regulations promulgated pursuant thereto prior to:
      1. The commencement of a federal, state, or local agency inspection or investigation, or the issuance by that agency of an information request to the owner or operator of the facility;
      2. The filing of a notice of a citizen suit filed under federal or state law;
      3. The filing of a complaint by a third party;
      4. The reporting to a federal, state, or local agency of the violation by an employee who is not authorized to speak on behalf of the facility; or
      5. The imminent discovery of the violation by a regulatory agency.
    4. “Voluntary discovery” means the discovery of a violation of this chapter or the administrative regulations promulgated pursuant thereto by the owner or operator of a facility if:
      1. The violation was discovered by an environmental audit; and
      2. The violation was not identified through a legally mandated monitoring or sampling requirement prescribed by statute, administrative regulation, permit, judicial or administrative order, agreed order, consent decree, or plea bargain.
  2. In order to encourage owners and operators of facilities and persons conducting other activities regulated under this chapter, or its federal, regional, or local counterparts or extensions, both to conduct voluntary internal environmental audits of their compliance programs and management systems and to assess and improve compliance with statutory and regulatory requirements, an environmental audit privilege is created to protect the confidentiality of communications relating to voluntary internal environmental audits.
  3. An environmental audit report shall be privileged and shall not be admissible as evidence in any civil or administrative proceeding, except as provided in subsection (4) of this section.
  4. The privilege described in subsection (3) of this section does not apply to the extent that:
    1. It is waived expressly or waived by implication by the owner or operator of a facility or persons conducting an activity that prepared or caused to be prepared the environmental audit report;
    2. The owner or operator of a facility or person conducting an activity seeks to introduce an environmental audit report as evidence. Seeking to introduce any part of the report shall constitute waiver of the privilege described in subsection (3) of this section for the entire report;
    3. In a civil or administrative proceeding, a court of record, after a private review consistent with the Kentucky Rules of Civil Procedure, shall require disclosure of material for which the privilege described in subsection (3) of this section is asserted, if the court determines that:
      1. The privilege is asserted for a fraudulent purpose;
      2. The material is not subject to the privilege; or
      3. Even if subject to the privilege, the material shows evidence of noncompliance with this chapter, or with the federal, regional, or local counterparts or extensions thereof, and appropriate efforts to achieve compliance were not promptly initiated and pursued with reasonable diligence.
    4. A party asserting the environmental audit privilege in subsection (3) of this section has the burden of proving the privilege, including, if there is evidence of noncompliance with this chapter, or the federal, regional, or local counterparts or extensions thereof, proof that appropriate efforts to achieve compliance were promptly initiated and pursued with reasonable diligence. A party seeking disclosure under subsection (4)(c)1. of this section has the burden of proving that the privilege is asserted for a fraudulent purpose.
  5. The privilege described in subsection (3) of this section shall not extend to:
    1. Documents, communications, data, reports, or other information required to be collected, developed, maintained, reported, or made available to the public or a regulatory agency pursuant to this chapter, or administrative regulations promulgated pursuant thereto, or other federal, state, or local law, ordinance, regulation, permit, or order, and any information developed relating to any release subject to KRS 224.1-400 (19);
    2. Information obtained by observation, sampling, or monitoring by any regulatory agency;
    3. Information obtained from a source independent of the environmental audit; or
    4. Any criminal proceeding.
  6. Nothing in this section shall limit, waive, or abrogate the scope or nature of any statutory or common-law privilege, including the work-product doctrine and the attorney-client privilege.
  7. Nothing in this section shall limit, waive, or abrogate any reporting requirement in accordance with this chapter or permit conditions.
  8. The cabinet shall not seek a civil penalty against a facility for a violation of this chapter or the administrative regulations promulgated pursuant thereto if:
    1. The owner or operator has made voluntary disclosure to the cabinet of the voluntary discovery of the violation;
    2. The owner or operator has corrected the violation within sixty (60) days of voluntary discovery, unless a shorter period of time is necessary to protect human health, safety, or the environment, or the cabinet determines that a longer period of time is necessary to correct the violation and approves a longer period of time and the owner or operator is taking the steps necessary to correct the violation as soon as possible;
    3. The owner or operator has agreed in writing to take steps to prevent a recurrence of the violation;
    4. The specific violation, or closely related violation;
      1. Has not occurred within the past three (3) years at the facility;
      2. Is not part of a pattern of violations of federal, state, or local law occurring within the past five (5) years identified in a judicial or administrative order, consent agreement, or agreed order, complaint, notice of violation, conviction, or plea agreement; and
      3. Is not an act or omission for which the facility has received penalty mitigation from a federal, state, or local agency;
    5. The violation is not one which resulted in serious actual harm, or presented an imminent and substantial endangerment to human health or the environment, or violated the terms of a judicial or administrative order, consent decree or agreed order, or plea agreement;
    6. The violation is not one which resulted in significant economic benefit which gives to the violator a clear advantage over its business competitors; and
    7. The owner or operator of the facility cooperates as requested by the cabinet and provides information as necessary to determine the applicability of this section.
  9. The condition contained in subsection (8)(f) of this section shall not apply to voluntary disclosures made prior to June 21, 2001.
  10. Nothing in this section shall be construed to abridge the right of any person to recover actual damages resulting from any violation.

History. Enact. Acts 1994, ch. 430, § 1, effective July 15, 1994; 1996, ch. 176, § 1, effective July 15, 1996; 2001, ch. 44, § 1, effective June 21, 2001.

Compiler’s Notes.

This section was formerly compiled as KRS 224.01-040 .

Research References and Practice Aids

Northern Kentucky Law Review.

Elliot, Kentucky’s Environmental Self-Audit Privilege: State Protection Or Increased Federal Scrutiny?, 23 N. Ky. L. Rev. 1 (1995).

224.1-050. Failure to enforce law or regulations — Demands for enforcement.

Any citizen of this Commonwealth having knowledge that any of the provisions of this chapter or regulations adopted thereunder are willfully and deliberately not being enforced by any public officer or employee, whose duty it is to enforce such provisions of this chapter and regulations thereunder, may bring such failure to enforce the law to the attention of such public officer or employee. To provide against unreasonable and irresponsible demands being made, all such demands to enforce the law must be in writing, under oath, with facts set forth specifically stating the nature of the failure to enforce the law. The stating of false facts and charges in such affidavit shall constitute perjury and shall subject the affiant to penalties provided under the law of perjury. If such public officer or employee neglects or refuses for any unreasonable time after demand to enforce such provision, any such citizen shall have the right to bring an action of mandamus in the Circuit Court of the county in which the operation which relates to the alleged lack of enforcement is being conducted. The court, if satisfied that any provision of this chapter or regulation thereunder is not being enforced, may make an appropriate order compelling the public officer or employee, whose duty it is to enforce such provision, to perform his duties, and upon failure to do so such public officer or employee shall be held in contempt of court and shall be subject to the penalties provided by the laws of the Commonwealth in such cases.

History. Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 90.

Compiler’s Notes.

KRS 224.01-050 formerly codified as KRS 224.091 .

This section was formerly compiled as KRS 224.01-050 .

NOTES TO DECISIONS

1.Jurisdiction.

Federal District Court did not have jurisdiction over a pendent claim brought pursuant to KRS 224.20-110 against a welding wire manufacturer in an action brought under 42 USCS § 7604, the citizen suit provision of the Clean Air Act (CAA). KRS 224.01-050 gives exclusive jurisdiction to the Circuit Court of the county where the alleged violation occurred. Cornett v. Welding Alloys (USA), Inc., 2003 U.S. Dist. LEXIS 27259 (E.D. Ky. Nov. 26, 2003).

Research References and Practice Aids

Kentucky Law Journal.

Notes, Energy v. Environment: Who Wins in the Race for Coal in Kentucky, 64 Ky. L.J. 641 (1975-76).

224.1-060. Pollution control law supplements other laws.

KRS Chapter 224 and the provisions of 1972 (1st Extra. Sess.) Ky. Acts ch. 3 shall not be construed as repealing any of the laws of the Commonwealth relating to the pollution of the waters thereof or any conservation laws, but shall be held and construed as ancillary and supplementary thereto, except to the extent that the same may be in direct conflict with KRS Chapter 224 and the provisions of 1972 (1st Extra. Sess.) Ky. Acts ch. 3.

History. Enact. Acts 1950, ch. 69, § 10; 1972 (1st Ex. Sess.), ch. 3, § 43.

Compiler’s Notes.

KRS 224.01-060 formerly codified as KRS 220.650 , and subsequently renumbered as 224.100 .

This section was formerly compiled as KRS 224.01-060 .

NOTES TO DECISIONS

1.Construction.

This section does not abrogate the common-law nuisance remedy. Ohio River Sand Co. v. Commonwealth, 467 S.W.2d 347, 1971 Ky. LEXIS 368 (Ky. Ct. App. 1971).

Cited:

Johnson v. Louisville, 261 S.W.2d 429, 1953 Ky. LEXIS 1014 ( Ky. 1953 ); West Kentucky Coal Co. v. Rudd, 328 S.W.2d 156, 1959 Ky. LEXIS 98 ( Ky. 1959 ).

Research References and Practice Aids

Cross-References.

Contaminating water-course, KRS 438.060 .

Injurious substances and explosives in public waters, KRS 150.460 .

224.1-070. Civil liability of persons polluting waters — State may sue.

Where the injury, death, or destruction of fish or other wildlife results from pollution as defined in KRS 224.1-010 or from any violation of the orders, rules, regulations, or other determinations of the cabinet, the person responsible therefor shall be liable to the Commonwealth in an amount reasonably necessary to restock or replenish such fish or wildlife. The Commonwealth shall, in addition to the penalties provided for in KRS 224.99-010 , be empowered to seek the recovery of such damages in any court of competent jurisdiction in this Commonwealth in the event the person responsible fails or refuses to pay for the restocking or replenishing of such fish or wildlife in the water or area affected.

History. Enact. Acts 1966, ch. 21, § 6; 1972 (1st Ex. Sess.), ch. 3, § 44; 1978, ch. 384, § 88, effective June 17, 1978.

Compiler’s Notes.

KRS 224.01-070 formerly codified as KRS 224.110 .

This section was formerly compiled as KRS 224.01-070 .

Opinions of Attorney General.

If the legislature had intended that the violator would have an option, it would have been so easy to have stated that he may either pay damages or replenish or restock. OAG 73-450 .

Research References and Practice Aids

Cross-References.

Criminal liability for contaminating watercourse, KRS 438.060 .

Environmental Quality Commission

224.1-100. Environmental Quality Commission: Membership, terms, compensation, officers, meetings. [Repealed]

History. Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 4; 1978, ch. 154, § 20, effective June 17, 1978; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 4; 1978, ch. 154, § 20, effective June 17, 1978) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.1-105. Eligibility limitations on commission membership. [Repealed]

History. Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 7; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 3, § 7, effective January 1, 1973) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.1-110. Powers and duties of commission. [Repealed]

History. Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 5; 1974, ch. 74, Art. III, §§ 1, 13(2); 1974, ch. 99, § 21; 1978, ch. 113, § 5, effective June 17, 1978; 1984, ch. 111, § 184, effective July 13, 1984; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 5; 1974, ch. 74, Art. III, §§ 1, 13(2); 1974, ch. 99, § 21; 1978, ch. 113, § 5, effective June 17, 1978; 1984, ch. 111, § 184, effective July 13, 1984) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.1-115. Recommendation of adoption or rejection of proposals — Adoption upon recommendation of rejection, statement of reason. [Repealed]

History. Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 6; 1974, ch. 74, Art. III, §§ 1, 13(2); repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 6; 1974, ch. 74, Art. III, §§ 1, 13(2)) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

Environmental Trust Fund

224.1-200. Environmental trust fund created. [Repealed]

History. Enact. Acts 1990, ch. 129, § 1, effective July 13, 1990; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler's Notes.

This section (Enact. Acts 1990, ch. 129, § 1, effective July 13, 1990) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.1-205. Uses for environmental trust fund. [Repealed]

History. Enact. Acts 1990, ch. 129, § 2, effective July 13, 1990; 2010, ch. 24, § 345, effective July 15, 2010; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 129, § 2, effective July 13, 1990; 2010, ch. 24, § 345, effective July 15, 2010) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.1-210. Environmental Board. [Repealed]

History. Enact. Acts 1990, ch. 129, § 3, effective July 13, 1990; 1996, ch. 194, § 59, effective July 15, 1996; 2010, ch. 24, § 346, effective July 15, 2010; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 129, § 3, effective July 13, 1990; 1996, ch. 194, § 59, effective July 15, 1996; 2010, ch. 24, § 346, effective July 15, 2010) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.1-215. Powers and duties of Environmental Board. [Repealed]

History. Enact. Acts 1990, ch. 129, § 4, effective July 13, 1990; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 129, § 4, effective July 13, 1990) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.1-220. Limitation on use of fund. [Repealed]

History. Enact. Acts 1990, ch. 129, § 5, effective July 13, 1990; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 129, § 5, effective July 13, 1990) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

Pollution Control

224.1-300. Pollution control facility — Definitions.

  1. For purposes of KRS 224.1-300 and 224.1-310 only, “pollution control facility” shall mean and include:
    1. Any property designed, constructed, or installed as a component part of any commercial or industrial premises for the primary purpose of eliminating or reducing the emission of, or ground level concentration of, particulate matter, dust, fumes, gas, mist, smoke, vapor, or odorous substances, or any combination thereof which renders air harmful or inimical to the health of persons or to property within this Commonwealth;
    2. Any disposal system or any treatment works, pretreatment works, appliance, equipment, machinery, or installation constructed, used, or placed in operation primarily for the purpose of reducing, controlling, or eliminating thermal pollution or water pollution caused by industrial waste, or what would be industrial waste, if discharged into the waters of the Commonwealth;
    3. Any disposal system or any appliance, equipment, machinery or installation constructed, used or placed in operation primarily for disposing of waste, converting waste into an item of real economic value or converting hazardous waste to nonhazardous waste;
    4. Any property designed, constructed, or installed as a component part of any commercial or industrial premises for the primary purpose of eliminating or reducing the emission of sound which is harmful or inimical to the health of persons or to property, or materially reduces the quality of the environment in this Commonwealth;
    5. Any property designed, constructed, or installed for the primary purpose of removing substances from raw materials, which substances, if permitted to become a component part of the finished product, would have a deleterious effect on the environment when the finished product was utilized.
  2. “Industrial waste” means any liquid, gaseous, or solid waste substance resulting from any process of industry, manufacture, trade, or business, or from the development, processing, or recovery of any natural resource, together with such sewage as is present, which pollutes the waters of the Commonwealth.
  3. “Solid waste” means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial, mining (excluding coal mining waste), and agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under Section 402 of the Federal Water Pollution Control Act, as amended (86 Stat. 880), or source, special nuclear, or by-product material as defined by the Atomic Energy Act of 1954, as amended (68 Stat. 923).
  4. “Treatment works” means any plant, disposal field, lagoon, dam, pumping station, incinerator, or other works used for the purpose of treating, stabilizing, or holding sewage, industrial waste, or other wastes.
  5. “Water pollution” shall mean the placing of any noxious or deleterious substances in any waters of the Commonwealth which render such waters harmful or inimical to aquatic life, or to the use of such waters for domestic water supply, or industrial or agricultural purposes or for recreation.
  6. “Waters of the Commonwealth” means all streams, lakes, ponds, marshes, watercourses, waterways, wells, springs, irrigation systems, drainage systems, and all other bodies or accumulations of water, surface and underground, natural or artificial, which are situated wholly or partly within, or border upon, this Commonwealth, or are within its jurisdiction, except those private waters which do not combine or effect a junction with natural surface or underground waters.
  7. “Cabinet” shall mean the Kentucky Energy and Environment Cabinet.
  8. “Pollution control tax exemption certificate” shall mean that certificate issued by the cabinet pursuant to KRS 224.1-310 .

History. Enact. Acts 1974, ch. 137, § 1(1) to (8); 1978, ch. 113, § 8, effective June 17, 1978; 1980, ch. 284, § 4, effective July 15, 1980; 2010, ch. 24, § 347, effective July 15, 2010.

Compiler’s Notes.

KRS 224.01-300 formerly codified as KRS 224.850 .

The Atomic Energy Act of 1954, referred to in subsection (3), is compiled as 42 USCS § 2011 et seq. Section 402 of the Water Pollution Control Act (Clean Water Act), also referred to in subsection (3), is compiled as 33 USCS § 1342.

This section was formerly compiled as KRS 224.01-300 .

Opinions of Attorney General.

Trucks or other vehicles used by a refuse collectors’ association to haul solid waste are not exempt from sales tax. OAG 77-317 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Vasek and Bradley, Kentucky Taxation, 68 Ky. L.J. 777 (1979-1980).

224.1-310. Tax exemption certificate application, issuance, revocation, modification — Appeal. [Effective until June 29, 2021]

  1. Application for a pollution control tax exemption certificate shall be filed with the Department of Revenue in such manner and in such form as may be prescribed by regulations issued by the Department of Revenue and shall contain plans and specifications of the structure or structures including all materials incorporated and to be incorporated therein and a descriptive list of all equipment acquired or to be acquired by the applicant for the purpose of air, noise, waste or water pollution control and any additional information deemed necessary by the Department of Revenue for the proper administration of Acts 1974, Chapter 137. The cabinet shall provide technical assistance and factual information as requested in writing by the Department of Revenue. If the Department of Revenue finds that the facility qualifies as a pollution control facility as defined in KRS 224.1-300 (1), it shall enter a finding and issue a certificate to that effect. The effective date of said certificate shall be the date of the making of the application for such certificate.
  2. Before issuing a pollution control tax exemption certificate, the Department of Revenue shall give notice in writing by mail to the secretary of the cabinet, and shall afford to the applicant and to the secretary of the cabinet an opportunity for a hearing. On like notice and opportunity for a hearing, the Department of Revenue shall on its own initiative revoke such certificate whenever any of the following appears:
    1. The certificate was obtained by fraud or misrepresentation;
    2. The holder of the certificate has failed substantially to proceed with the construction, reconstruction, installation, or acquisition of the pollution control facilities; or
    3. The structure or equipment or both to which the certificate relates has ceased to be used for the primary purpose of pollution control and is being used for a different purpose.
  3. Provided, however, that where the circumstances so require, the Department of Revenue in lieu of revoking such certificate may modify the same.
  4. On the mailing of notice of the action of the Department of Revenue revoking or modifying a certificate as provided in subsection (5) of this section, such certificate shall cease to be in force or shall remain in force only as modified as the case may require.
  5. A pollution control tax exemption certificate, when issued, shall be sent by certified mail to the applicant and notice of such issuance in the form of certified copies thereof shall be sent to the secretary of the cabinet. Notice of an order of the Department of Revenue denying, revoking, or modifying a certificate in the form of certified copies thereof shall be sent by certified mail to the applicant or the holder thereof and shall be sent to the secretary of the cabinet. The applicant or holder and the secretary of the cabinet are deemed parties for the purpose of the review afforded by subsection (6) of this section.
  6. Any party aggrieved by the issuance, refusal to issue, revocation, or modification of a pollution control tax exemption certificate may appeal from the final ruling of the Department of Revenue to the Kentucky Claims Commission pursuant to KRS 49.220 .
  7. In the event of the sale, lease, or other transfer of a pollution control facility, not involving a different location or use, the holder of a pollution control tax exemption certificate for such facility may transfer the certificate by written instrument to the person who, except for the transfer of the certificate, would be obligated to pay taxes on such facility. The transferee shall become the holder of the certificate and shall have all rights pertaining thereto, effective as of the date of transfer of the facility or the date of transfer of the certificate, whichever is earlier. The transferee shall give written notice of the effective date of the transfer, together with a copy of the instrument of transfer to the cabinet and to the Department of Revenue.
  8. In the event a pollution control facility for which an exemption certificate is held ceases to be used for the primary purpose of pollution control or is used for a different purpose than that for which the exemption certificate was granted, the holder of the certificate shall give written notice by certified mail of such change to the cabinet and to the Department of Revenue.

History. Enact. Acts 1974, ch. 137, § 1(9) to (16); 1978, ch. 113, § 9, effective June 17, 1978; 1978, ch. 155, § 123, effective June 17, 1978; 2005, ch. 85, § 628, effective June 20, 2005; 2017 ch. 74, § 95, effective June 29, 2017.

Compiler’s Notes.

KRS 224.01-310 formerly codified as KRS 224.852 .

Acts 1974, ch. 137, referred to subsection (1) of this section, is compiled as KRS 132.200 , 136.070 , 139.480 , 141.120 , 224.01-300 , 224.01-310 and 224.99-030 .

This section was formerly compiled as KRS 224.01-310 .

224.1-310. Tax exemption certificate application, issuance, revocation, modification — Appeal. [Effective June 29, 2021]

  1. Application for a pollution control tax exemption certificate shall be filed with the Department of Revenue in such manner and in such form as may be prescribed by regulations issued by the Department of Revenue and shall contain plans and specifications of the structure or structures including all materials incorporated and to be incorporated therein and a descriptive list of all equipment acquired or to be acquired by the applicant for the purpose of air, noise, waste or water pollution control and any additional information deemed necessary by the Department of Revenue for the proper administration of Acts 1974, Chapter 137. The cabinet shall provide technical assistance and factual information as requested in writing by the Department of Revenue. If the Department of Revenue finds that the facility qualifies as a pollution control facility as defined in KRS 224.1-300 (1), it shall enter a finding and issue a certificate to that effect. The effective date of said certificate shall be the date of the making of the application for such certificate.
  2. Before issuing a pollution control tax exemption certificate, the Department of Revenue shall give notice in writing by mail to the secretary of the cabinet, and shall afford to the applicant and to the secretary of the cabinet an opportunity for a hearing. On like notice and opportunity for a hearing, the Department of Revenue shall on its own initiative revoke such certificate whenever any of the following appears:
    1. The certificate was obtained by fraud or misrepresentation;
    2. The holder of the certificate has failed substantially to proceed with the construction, reconstruction, installation, or acquisition of the pollution control facilities; or
    3. The structure or equipment or both to which the certificate relates has ceased to be used for the primary purpose of pollution control and is being used for a different purpose.
  3. Provided, however, that where the circumstances so require, the Department of Revenue in lieu of revoking such certificate may modify the same.
  4. On the mailing of notice of the action of the Department of Revenue revoking or modifying a certificate as provided in subsection (5) of this section, such certificate shall cease to be in force or shall remain in force only as modified as the case may require.
  5. A pollution control tax exemption certificate, when issued, shall be sent by certified mail to the applicant and notice of such issuance in the form of certified copies thereof shall be sent to the secretary of the cabinet. Notice of an order of the Department of Revenue denying, revoking, or modifying a certificate in the form of certified copies thereof shall be sent by certified mail to the applicant or the holder thereof and shall be sent to the secretary of the cabinet. The applicant or holder and the secretary of the cabinet are deemed parties for the purpose of the review afforded by subsection (6) of this section.
  6. Any party aggrieved by the issuance, refusal to issue, revocation, or modification of a pollution control tax exemption certificate may appeal from the final ruling of the Department of Revenue to the Board of Tax Appeals pursuant to KRS 49.220 .
  7. In the event of the sale, lease, or other transfer of a pollution control facility, not involving a different location or use, the holder of a pollution control tax exemption certificate for such facility may transfer the certificate by written instrument to the person who, except for the transfer of the certificate, would be obligated to pay taxes on such facility. The transferee shall become the holder of the certificate and shall have all rights pertaining thereto, effective as of the date of transfer of the facility or the date of transfer of the certificate, whichever is earlier. The transferee shall give written notice of the effective date of the transfer, together with a copy of the instrument of transfer to the cabinet and to the Department of Revenue.
  8. In the event a pollution control facility for which an exemption certificate is held ceases to be used for the primary purpose of pollution control or is used for a different purpose than that for which the exemption certificate was granted, the holder of the certificate shall give written notice by certified mail of such change to the cabinet and to the Department of Revenue.

HISTORY: Enact. Acts 1974, ch. 137, § 1(9) to (16); 1978, ch. 113, § 9, effective June 17, 1978; 1978, ch. 155, § 123, effective June 17, 1978; 2005, ch. 85, § 628, effective June 20, 2005; 2017 ch. 74, § 95, effective June 29, 2017; 2021 ch. 185, § 84, effective June 29, 2021.

Environmental Emergencies

224.1-400. Reportable quantities and release notification requirements for hazardous substances, pollutants, or contaminants — Variation of requirements by administrative regulations — Emergency plan — Powers of cabinet — Remedial action to restore environment — Lien of cabinet for costs of cleanup — Liability of financial institution acquiring property or serving as fiduciary.

  1. As used in this section:
    1. “Hazardous substance” means any substance or combination of substances including wastes of a solid, liquid, gaseous, or semi-solid form which, because of its quantity, concentration, or physical, chemical, or infectious characteristics may cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness, or pose a substantial present or potential hazard to human health or the environment. The substances may include but are not limited to those which are, according to criteria established by the cabinet, toxic, corrosive, ignitable, irritants, strong sensitizers, or explosive, except that the term “hazardous substance” shall not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under this section, and shall not include natural gas, natural gas liquids, liquified natural gas, or synthetic gas usable for fuel, or mixtures of natural gas and synthetic gas;
    2. “Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing hazardous substances, pollutants, or contaminants into the environment, including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance, pollutant, or contaminant, but excludes emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine; the release of source, by-product, or special nuclear material from a nuclear incident, as those terms are defined in the Atomic Energy Act of 1954, if the release is subject to requirements with respect to financial protection established by the Nuclear Regulatory Commission under Section 170 of the Act, or any release of source by-product, or special nuclear material from any processing site designated under Sections 102(a)(1) or 302(a) of the Uranium Mill Tailing Radiation Control Act of 1978; and the normal application of fertilizer;
    3. “Site” means any building, structure, installation, equipment, pipe, or pipeline, including any pipe into a sewer or publicly-owned treatment works, well, pit, pond, lagoon, impoundment, ditch, landfill, storage containers, motor vehicles, rolling stock, or aircraft, or any other place or area where a release or threatened release has occurred. The term shall not include any consumer product in consumer use;
    4. “Environmental emergency” means any release or threatened release of materials into the environment in such quantities or concentrations as cause or threaten to cause an imminent and substantial danger to human health or the environment; the term includes, but is not limited to, discharges of oil and hazardous substances prohibited by Section 311(b)(3) of the Federal Clean Water Act - (Public Law 92-500), as amended;
    5. “Threatened release” means a circumstance which presents a substantial threat of a release;
    6. “Pollutant or contaminant” shall include, but not be limited to, any element, substance, compound, or mixture, including disease-causing agents, which after release into the environment and upon exposure, ingestion, inhalation, or assimilation into any organism, either directly from the environment or indirectly by ingestion through food chains, will or may reasonably be anticipated to cause death, disease, behavioral abnormalities, cancer, genetic mutation, physiological malfunctions (including malfunctions in reproduction) or physical deformations, in such organisms or their offspring; except that the term “pollutant or contaminant” shall not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under this section and shall not include natural gas, liquified natural gas, or synthetic gas of pipeline quality (or mixtures of natural gas and such synthetic gas);
    7. “Environment” means the waters of the Commonwealth, land surface, surface, and subsurface soils and strata, or ambient air within the Commonwealth or under the jurisdiction of the Commonwealth;
    8. “Financial institution” means, for purposes of subsections (26) and (27) of this section, the following:
      1. A bank or trust company defined by Subtitle 3 of KRS Chapter 286;
      2. A savings and loan association defined by Subtitle 5 of KRS Chapter 286;
      3. A credit union defined by Subtitle 6 of KRS Chapter 286;
      4. A mortgage loan company or loan broker defined by Subtitle 8 of KRS Chapter 286;
      5. An insurer defined by KRS Chapter 304; and
      6. Any other financial institution engaged in the business of lending money, the lending operations of which are subject to state or federal regulation; and
    9. “Fiduciary” means, for purposes of subsections (26) and (27) of this section, a fiduciary as defined by KRS Chapter 386.
  2. The cabinet may promulgate administrative regulations in accordance with the provisions of KRS Chapter 13A designating individual hazardous substances, pollutants, or contaminants; establishing their respective reportable quantities; and establishing their respective release notification requirements, which differ from those designated or established in subsections (3) to (9) of this section, if necessary to:
    1. Protect human health and the environment;
    2. Maintain consistency with valid scientific development; or
    3. Maintain consistency with newly adopted federal regulations.
  3. The hazardous substances for which release notification is required shall be those hazardous substances designated in 40 C.F.R. Part 302 under the Federal Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended; those extremely hazardous substances designated in 40 C.F.R. Part 355 under Title III of the Superfund Amendments and Reauthorization Act of 1986; nerve and blister agents designated under KRS 224.50-130 (2); and any hazardous substances designated by the cabinet in administrative regulations promulgated pursuant to subsection (2) of this section.
  4. The reportable quantity for a release of a hazardous substance designated in 40 C.F.R. Part 302 under the Federal Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, shall be the quantity designated in 40 C.F.R. Part 302. The reportable quantity for a release of an extremely hazardous substance designated in 40 C.F.R. Part 355 under Title III of the Superfund Amendments and Reauthorization Act of 1986 shall be the quantity designated in 40 C.F.R. Part 355. The reportable quantity for a release of a nerve or blister agent designated under KRS 224.50-130 (2) shall be any quantity. The cabinet may establish reportable quantities for hazardous substances in administrative regulations promulgated pursuant to subsection (2) of this section which differ from those established in this subsection. The reportable quantity for any hazardous substance designated by the cabinet in administrative regulations promulgated pursuant to subsection (2) of this section shall be the reportable quantity established by the cabinet.
  5. The release notification requirements for a release of a hazardous substance designated in 40 C.F.R. Part 302 under the Federal Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, shall be the notification requirements established in 40 C.F.R. Part 302. The release notification requirements for a release of an extremely hazardous substance designated in 40 C.F.R. Part 355 under Title III of the Superfund Amendments and Reauthorization Act of 1986 shall be the notification requirements established in 40 C.F.R. Part 355. Whenever notification of a release or threatened release of a hazardous substance is required pursuant to this section, any person possessing or controlling the hazardous substance shall immediately notify the cabinet’s twenty-four (24) hour environmental response line. The cabinet may establish release notification requirements by administrative regulation promulgated pursuant to subsection (2) of this section which differ from those established in this subsection. The release notification requirements for any hazardous substance designated by the cabinet in administrative regulations promulgated pursuant to subsection (2) of this section shall be the release notification requirements established in the cabinet’s administrative regulations.
  6. Any person possessing or controlling a pollutant or contaminant for which a reportable quantity has been established by administrative regulation promulgated pursuant to subsection (2) of this section shall immediately notify the cabinet’s twenty-four (24) hour environmental response line, as soon as that person has knowledge of any release or threatened release, other than a permitted release or application of a pesticide in accordance with the manufacturer’s instructions, of a pollutant or contaminant to the environment in a quantity equal to or exceeding the reportable quantity. In the notice to be made to the cabinet, the person shall state, at a minimum, the location of the release or threatened release, the material released or threatened to be released, and the approximate quantity and concentration of the release or threatened release.
  7. Any person possessing or controlling a pollutant or contaminant shall, as soon as that person has knowledge of any release or threatened release of a pollutant or contaminant from a site to the environment in a quantity which may present an imminent or substantial danger to the public health or welfare, immediately notify the cabinet’s twenty-four (24) hour environmental response line. In the notice to be made to the cabinet, the person shall state, at a minimum, the location of the release or threatened release, the material released or threatened to be released, and the approximate quantity and concentration of the release or threatened release. If a person possessing or controlling a pollutant or contaminant for which a reportable quantity has not been established in administrative regulations promulgated pursuant to subsection (2) of the section fails to report a release or threatened release because of a good-faith belief that the release did not present an imminent or substantial danger to the public health or welfare, that person shall not be liable for a violation of the release notification requirements of this section. In determining whether a person has acted in good faith, the cabinet shall consider the circumstances surrounding the release, including whether the release was a permitted release or the application of a pesticide in accordance with the manufacturer’s instructions.
  8. The cabinet may require the person subject to the release notification requirements of subsections (5) to (9) of this section to provide a written report on the release or threatened release. This report shall be submitted to the environmental response section of the cabinet within seven (7) days of the cabinet’s demand for the report. The report shall identify the following:
    1. The precise location of the release or threatened release;
    2. The name, address, and phone number of the person possessing or controlling the material at the time of the release or threatened release;
    3. The name, address, and phone number of persons having actual knowledge of the facts surrounding the release or threatened release;
    4. The specific pollutant or contaminant or hazardous substance released or threatened to be released;
    5. The concentration and quantity of the pollutant or contaminant or hazardous substance in the release or threatened release;
    6. The circumstances and cause of the release or threatened release;
    7. Efforts taken by the person to control or mitigate the release or threatened release;
    8. To the extent known, the harmful effects of the release or threatened release;
    9. The transportation characteristics of the medium or matrix into which the material was released or threatened to be released;
    10. Any present or proposed remedial action by the person at the site of the release or threatened release;
    11. The name, address, and phone number of the person who can be contacted for additional information concerning the release or threatened release; and
    12. Any other information that may facilitate remediation of the site.
  9. A person possessing or controlling a hazardous substance, pollutant, or contaminant shall immediately notify the cabinet pursuant to subsection (5) of this section when release notification, including notification of a continuous release reported under the Federal Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, is provided to the United States Environmental Protection Agency. Within seven (7) days of providing any written notification to the United States Environmental Protection Agency, the person shall submit to the cabinet a copy of the release notification submitted to the United States Environmental Protection Agency. The cabinet shall not require additional information pursuant to subsection (5) of this section if the release notification is in compliance with this subsection, unless a written report is required under subsection (8) of this section or the release or threatened release constitutes an environmental emergency.
  10. Any person in charge of a vessel or site from which oil is discharged in a harmful quantity as defined by 40 C.F.R. Part 110 in contravention of Section 311 of the Federal Clean Water Act shall immediately notify the cabinet’s twenty-four (24) hour environmental response line. In the notice to be made to the cabinet, the person shall state, at a minimum, the location of the discharge, the material discharged, and the approximate quantity and concentration of the discharge.
  11. Any person possessing or controlling petroleum or a petroleum product as defined by KRS 224.60-115 (15) shall, as soon as that person has knowledge of any release or threatened release, other than a permitted release or application of a pesticide in accordance with the manufacturer’s instructions, in an amount of twenty-five (25) gallons or more in a twenty-four (24) hour period, except for diesel fuel for which the reportable quantity is seventy-five (75) gallons or more in a twenty-four (24) hour period, or in contravention of Section 311 of the Federal Clean Water Act, immediately notify the cabinet’s twenty-four (24) hour environmental response line. In the notice to be made to the cabinet, the person shall state, at a minimum, the location of the release or threatened release, the material released or threatened to be released, and the approximate quantity and concentration of the release or threatened release.
  12. The cabinet may require the person subject to subsections (10) and (11) of this section to provide a written report on the discharge or release. This report shall be submitted to the environmental response section of the cabinet within seven (7) days of the cabinet’s demand for the report. The report shall identify the following:
    1. The precise location of the discharge or release;
    2. The name, address, and phone number of the person possessing or controlling the material at the time of the discharge or release;
    3. The name, address, and phone number of persons having actual knowledge of the facts surrounding the discharge or release;
    4. The concentration and quantity of the discharge or release;
    5. The circumstances and cause of the discharge or release;
    6. Efforts taken by the person to control or mitigate the discharge or release;
    7. To the extent known, the harmful effects of the discharge or release;
    8. The transportation characteristics of the medium or matrix into which the material was discharged or released;
    9. Any present or proposed remedial action by the person at the site of the discharge or release;
    10. The name, address, and phone number of the person who can be contacted for additional information concerning the discharge or release; and
    11. Any other information that may facilitate an emergency spill response, or remediation of the site.
  13. Timely notification received under the release notification requirements of this section or information obtained in a notification received under the release notification requirements of this section may not be used against the person making the notification in any criminal proceeding, except in a prosecution for submitting a false or untimely notification to the cabinet. Notification received by the cabinet of a threatened release or discharge shall not be deemed a separate incident.
  14. The cabinet shall be the lead agency for hazardous substance, pollutant, or contaminant emergency spill response and, after consultation with other affected federal, state, and local agencies and private organizations, shall establish a contingency plan for undertaking emergency actions in response to the release of a hazardous substance, pollutant, or contaminant. The contingency plan shall:
    1. Provide for efficient, coordinated, and effective action to minimize damage to the air, land, and waters of the Commonwealth caused by the release or threatened release of hazardous substances, pollutants, or contaminants;
    2. Include containment, cleanup, and disposal procedures;
    3. Provide for remediation or restoration of the lands or waters affected consistent with this section;
    4. Assign duties and responsibilities among state cabinets and agencies in coordination with federal and local agencies;
    5. Provide for the identification, procurement, maintenance, and storage of necessary equipment and supplies;
    6. Provide for designation of persons trained, prepared, and available to provide the necessary services to carry out the plan; and
    7. Establish procedures and techniques for identifying, containing, removing, and disposing of hazardous substances released or being released.
  15. The cabinet shall have the authority, power, and duty to:
    1. Recover from persons liable therefor for the benefit of the hazardous waste management fund, the cabinet’s actual and necessary costs expended in response to a threatened release, an environmental emergency, or a release of a hazardous substance that is reportable under this section. Except as provided in paragraph (b) of this subsection, this section is intended solely to recognize the existence of a cause of action on behalf of the cabinet and is not intended to expand or contract the bases of liability, the elements of proof, or the amount of liability of any person;
    2. Notwithstanding paragraph (a) of this subsection, recover its costs incurred in the removal of oil or hazardous substances discharged in violation of Section 311(b)(3) of the Federal Clean Water Act from any person liable therefor under Section 311 of the Federal Clean Water Act subject to limitations of liability and defenses provided in the section. The limitations of liability shall apply to the total of state and federal expenses; and
    3. In every case where action required under this section is not being adequately taken or the identity of the person responsible for the release or threatened release is unknown, the cabinet or its agent may contain, remove, or dispose of the hazardous substance, pollutant, or contaminant or take any other action consistent with this section, including, but not limited to, issuance of an emergency order as provided in KRS 224.10-410 to the person possessing, controlling, or responsible for the release or threatened release as necessary for the protection of the environment and public health, safety, or welfare.
  16. Any duly authorized officer, employee, or agent of the cabinet may upon notice to the owner or occupant enter any property, premises, or place at any time for the purposes of this section, if the entry is necessary to prevent damage to the air, land, or waters of the Commonwealth. Notice to the owner or occupant shall not be required if the delay attendant upon providing it will result in imminent risk to public health or safety.
  17. The cabinet shall prepare and annually update an inventory of all sites in the Commonwealth at which there is or has been an environmental emergency or a release of a hazardous substance, pollutant, or contaminant. In preparing the inventory, the cabinet shall determine, based on information available to the cabinet, the impact of each site on public health and the environment and identify the relative priority for restoration or remedial action. Upon determining that no further restoration or remedial action is necessary, the cabinet shall so designate the site on the inventory. A separate designation of sites where a remedial action involving on-site containment or treatment has been performed and other sites where restoration of the environment has not been achieved shall be maintained. A review of environmental conditions at sites remediated by on-site containment or treatment and other sites where restoration or remediation of the environment is not achieved shall be conducted by the cabinet every five (5) years to determine whether additional action is necessary to protect human health or the environment.
  18. Any person possessing or controlling a hazardous substance, pollutant, or contaminant which is released to the environment, or any person who caused a release to the environment of a hazardous substance, pollutant, or contaminant, shall characterize the extent of the release as necessary to determine the effect of the release on the environment, and shall take actions necessary to correct the effect of the release on the environment. Any person required to take action under this subsection shall have the following options:
    1. Demonstrating that no action is necessary to protect human health, safety, and the environment;
    2. Managing the release in a manner that controls and minimizes the harmful effects of the release and protects human health, safety, and the environment, provided that the management may include any existing or proposed engineering or institutional controls and the maintenance of those controls;
    3. Restoring the environment through the removal of the hazardous substance, pollutant, or contaminant; or
    4. Any combination of paragraphs (a) to (c) of this subsection.
  19. Unless otherwise required by the cabinet, a person required to characterize the extent of a release and correct the effect of the release on the environment under subsection (18) of this section may take those actions without making the demonstrations to the cabinet required by subsections (18) to (21) of this section, if:
    1. The release is less than the reportable quantity of a hazardous substance, pollutant, or contaminant;
    2. The release is of a pollutant or contaminant for which a reportable quantity has not been established by administrative regulation promulgated pursuant to subsection (2) of this section, if the release does not present an imminent or substantial danger to the public health or welfare; or
    3. The release is authorized by a state or federal permit.
  20. If a person required to take action under subsection (18) of this section demonstrates to the cabinet that, pursuant to subsection (18)(a) of this section, no action is necessary to protect human health, safety, and the environment or, pursuant to subsection (18)(b) of this section, the release will be managed in a manner that controls and minimizes the harmful effects of the release and protects human health, safety, and the environment, the cabinet shall not require restoration of the environment through the removal of the hazardous substance, pollutant, or contaminant pursuant to subsection (18)(c) of this section.
  21. A person required to take action under subsection (18) of this section who does not restore the environment through removal of the hazardous substance, pollutant, or contaminant in accordance with subsection (18)(c) of this section shall demonstrate to the cabinet that the remedy is protective of human health, safety, and the environment, by considering the following factors:
    1. The characteristics of the substance, pollutant, or contaminant, including its toxicity, persistence, environmental fate and transport dynamics, bioaccumulation, biomagnification, and potential for synergistic interaction and with specific reference to the environment into which the substance, pollutant, or contaminant has been released;
    2. The hydrogeologic characteristics of the facility and the surrounding area;
    3. The proximity, quality, and current and future uses of surface water and groundwater;
    4. The potential effects of residual contamination of potentially impacted surface water and groundwater;
    5. The chronic and acute health effects and environmental consequences to terrestrial and aquatic life of exposure to the hazardous substance, pollutant, or contaminant through direct and indirect pathways;
    6. An exposure assessment; and
    7. All other available information.
  22. A person who submits a proposal to the cabinet pursuant to subsection (18) of this section may request in writing a final determination on the proposal no sooner than thirty (30) days after its submission. When a final determination on the proposal is requested, the cabinet shall make its final determination within sixty (60) working days from the date the request is received by the cabinet. After a final determination has been made, the person requesting the final determination may request a hearing pursuant to the provisions of KRS 224.10-420 . Nothing in this subsection shall relieve any person of any obligations imposed by law during an environmental emergency, nor shall it require the cabinet to approve a proposal which would violate this chapter or the administrative regulations promulgated pursuant thereto.
    1. The cabinet shall have a lien against the real and personal property of a person liable for the actual and necessary costs expended in response to a release or threatened release or an environmental emergency. The lien shall be filed with the county clerk of the county in which the property of the person is located. (23) (a) The cabinet shall have a lien against the real and personal property of a person liable for the actual and necessary costs expended in response to a release or threatened release or an environmental emergency. The lien shall be filed with the county clerk of the county in which the property of the person is located.
    2. If a financial institution exempted from liability by subsection (26) of this section conveys the site it has acquired, then the cabinet shall have a lien against the site for the actual and necessary costs expended in response to a release or threatened release or an environmental emergency. The lien shall be filed with the county clerk of the county in which the site is located.
  23. Nothing in this section shall replace the financial and technical assistance available to the Commonwealth pursuant to Section 311 of the Federal Clean Water Act (Public Law 92-500) as amended, but shall be used to provide the Commonwealth with a mechanism for additional response to releases and threatened releases of hazardous substances, pollutants, or contaminants.
  24. Defenses to liability, limitations to liability, and rights to contribution shall be determined in accordance with Sections 101(35), 101(40), 107(a) to (d), 107(q) and (r), and 113(f) of the Comprehensive Environmental Response Compensation and Liability Act, as amended, and the Federal Clean Water Act, as amended.
  25. In addition to the defenses and limitations provided in subsection (25) of this section, a financial institution that acquired a site by foreclosure, by receiving an assignment, by deed in lieu of foreclosure, or by otherwise becoming the owner as a result of the enforcement of a mortgage, lien, or other security interest held by the financial institution, shall not be liable under this section with respect to the site, if:
    1. The financial institution served only in an administrative, custodial, financial, or similar capacity with respect to the site before its acquisition;
    2. The financial institution did not control or direct the handling of the material causing the environmental emergency, or control or direct the handling of the hazardous substance, pollutant, or contaminants, at the site before its acquisition;
    3. The financial institution did not participate in the day-to-day management of the site before its acquisition;
    4. The financial institution, at the time it acquired the site, did not know and had no reason to know that a hazardous substance, pollutant, or contaminant was disposed at the site. For purposes of this paragraph, the financial institution shall have undertaken, at the time of acquisition, all appropriate inquiries into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability. What actions constitute all appropriate inquiries shall be determined by taking into account any specialized knowledge or experience on the part of the financial institution, the relationship of the market value of the site to the value of the site if uncontaminated, commonly known or reasonably ascertainable information about the site, the obviousness of the presence or likely presence of contamination at the site, the ability to detect the contamination by appropriate inspection, and any other relevant factor;
    5. The financial institution, when it undertakes actions to protect or preserve the value of the site, undertakes those actions in accordance with this chapter and the administrative regulations adopted pursuant thereto;
    6. The financial institution, its employees, agents, and contractors did not cause or contribute to an environmental emergency, or to a release or threatened release of a hazardous substance, pollutant, or contaminant; and
    7. The financial institution complies with the release notification requirements of subsection (9) of this section.
  26. In addition to the defenses and limitations provided in subsection (25) of this section, a financial institution serving as a fiduciary with respect to an estate or trust, the assets of which contain a site, shall not be liable under this section with respect to the site if:
    1. The financial institution served only in an administrative, custodial, financial, or similar capacity with respect to the site before it became a fiduciary;
    2. The financial institution did not control or direct the handling of the material causing the environmental emergency, or control or direct the handling of the hazardous substance, pollutant, or contaminants, at the site before it became a fiduciary;
    3. The financial institution did not participate in the day-to-day management of the site before it became a fiduciary;
    4. The financial institution, at the time it became a fiduciary, did not know and had no reason to know that a hazardous substance, pollutant, or contaminant was disposed at the site. For purposes of this paragraph, the financial institution shall have undertaken, at the time it became a fiduciary, all appropriate inquiries into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability. What actions constitute all appropriate inquiries shall be determined by taking into account any specialized knowledge or experience on the part of the financial institution, the relationship of the market value of the site to the value of the site if uncontaminated, commonly known or reasonably ascertainable information about the site, the obviousness of the presence or likely presence of contamination at the site, the ability to detect the contamination by appropriate inspection, and any other relevant factor;
    5. The financial institution, when it undertakes actions to protect or preserve the value of the site, undertakes those actions in accordance with this chapter and the administrative regulations adopted pursuant thereto;
    6. The financial institution, its employees, agents, and contractors did not cause or contribute to an environmental emergency, or to a release or threatened release of a hazardous substance, pollutant, or contaminant; and
    7. The financial institution complies with the release notification requirements of subsection (9) of this section.

History. Enact. Acts 1980, ch. 263, § 2, effective July 15, 1980; 1986, ch. 171, § 1, effective July 15, 1986; 1986, ch. 298, § 2, effective July 15, 1986; 1990, ch. 491, § 1, effective July 13, 1990; 1992, ch. 285, § 1, effective July 14, 1992; 1992, ch. 394, § 1, effective July 14, 1992; 1996, ch. 295, § 5, effective July 15, 1996; 1998, ch. 562, § 1, effective July 15, 1998; 2005, ch. 168, § 141, effective March 18, 2005.

Compiler’s Notes.

KRS 224.01-400 formerly codified as KRS 224.877 .

The Comprehensive Environmental Compensation and Liability of 1980 (Public Laws 96-510) referred to in this section, is compiled primarily as 42 USCS § 9601 et seq.

Section 311 of the federal Clean Water Act, referred to in this section, is compiled as 33 USCS § 1321.

The Atomic Energy Act of 1954, referred to in this section, is compiled primarily as 42 USCS § 2011 et seq.

The federal Clean Water Act, referred to in this section, is compiled as 33 USCS § 1251 et seq.

Title III of Superfund Amendments and Reauthorization Act of 1986, referred to in this section, is compiled in 42 USCS § 11001 et seq.

The Uranium Mill Tailing Radiation Control Act of 1978, referred to in this section, is compiled as 42 USCS § 7901 et seq.

This section was formerly compiled as KRS 224.01-400 .

Legislative Research Commission Notes.

(7/12/2006). 2006 Ky. Acts ch. 247 instructs the Reviser of Statutes to adjust KRS references throughout the statutes to conform with the 2006 renumbering of the Financial Services Code, KRS Chapter 286. Such an adjustment has been made in this statute.

(3/18/2005). Ky. Acts. ch. 168, § 165, provides that this section shall apply to tax years beginning on or after January 1, 2005.

(12/16/98). In codifying the 1998 change to this statute, the “(1)” following “113(f)” in subsection (25) has been deleted to correct an inadvertent omission in codifying 1992 Ky. Acts ch. 394, § 1.

NOTES TO DECISIONS

1.Violations.

Company found to be in violation of Kentucky environmental protection laws in this chapter and regulations of the Natural Resources and Environmental Protection Cabinet were enjoined to correct the violations and ordered to pay the Cabinet its actual and necessary costs expended in response to the violations. Rockwell Int'l Corp. v. Commonwealth, 16 S.W.3d 316, 1999 Ky. App. LEXIS 96 (Ky. Ct. App. 1999).

A real estate development group was liable for environmental contamination pursuant to KRS 224.01-400 when the group removed buildings from the site, which exposed the soil to contamination, and did not nothing to abate the problem once it learned of the contamination; the group was not entitled to claim an innocent purchaser defense under the Comprehensive Environmental Response Compensation Liability Act, 42 USCS § 9607(b), because regardless of whether the development group properly relied on an evaluation of the site performed prior to the purchase, it failed to take due care when it demolished a building on the site, and took no action to abate the problem once it knew of the contamination problems. 500 Assocs. v. Natural Res. & Envtl. Prot. Cabinet, 204 S.W.3d 121, 2006 Ky. App. LEXIS 290 (Ky. Ct. App. 2006).

Research References and Practice Aids

Journal of Natural Resources & Environmental Law.

Articles, Common Law Remedies Available for Petroleum Contamination of Soil and Groundwater in Kentucky, 13 J. Nat. Resources & Envtl. L. 1 (1998-99).

Northern Kentucky Law Review.

Natter, How Clean is Clean? Hazardous Waste/Hazardous Substance Cleanup Standards Under Kentucky Law, 18 N. Ky. L. Rev. 295 (1991).

Brandt, Kentucky Real Estate Law Survey: 1990 Through 1993, 21 N. Ky. L. Rev. 435 (1994).

Reynolds, Who’s Going to Regulate NORM?, 22 N. Ky. L. Rev. 5 (1995).

Sanders, Kentucky Adopts Risk Assessment for Closing Hazardous Waste Units, 22 N. Ky. L. Rev. 37 (1995).

Perkins, Petroleum Storage Regulation in Kentucky, 22 N. Ky. L. Rev. 59 (1995).

Elliot, Kentucky’s Environmental Self-Audit Privilege: State Protection Or Increased Federal Scrutiny?, 23 N. Ky. L. Rev. 1 (1995).

Articles, “Overview of Brownfield Redevelopment Initiatives”, see 30-32 for Ky. specific legislation, 25 N. Ky. L. Rev. 1 (1997).

224.1-401. Notice to local governments of declaration of environmental emergency.

Within seven (7) days of declaring that an environmental emergency exists that requires implementation of a contingency plan established in KRS 224.1-400 (14), the cabinet shall send a copy of the declaration of emergency to the county/judge executive of the county or the chief executive officer of the urban-county government within which the environmental emergency exists.

HISTORY: 2019 ch. 78, § 1, effective June 27, 2019.

224.1-405. Corrective action for release of petroleum or petroleum product from a source other than a petroleum storage tank.

  1. In the event of a release to the environment of petroleum or a petroleum product from a source other than a petroleum storage tank, any person who owns or operates the source from which the release occurred or any person who caused the release shall characterize the extent of the release as necessary to determine the effect of the release on the environment and shall perform corrective action. “Corrective action” means those actions necessary to protect human health, safety, and the environment in the event of a release of petroleum or petroleum product from a source other than a petroleum storage tank. “Corrective action” includes remedial actions to clean up contaminated groundwater, surface waters, sediments, and soil; actions to address residual effects after initial corrective action is taken; and actions taken to restore or replace potable water supplies. “Corrective action” also includes actions necessary to monitor, assess, and evaluate a release, as well as actions necessary to monitor, assess, and evaluate the effectiveness of remedial action after a release has occurred.
  2. The cabinet shall, by administrative regulation, establish standards and procedures for the performance of corrective action in the event of a release of petroleum or petroleum products from a source other than a petroleum storage tank. The standards shall adequately protect human health, safety, and the environment. The standards and procedures shall be consistent with the standards and procedures for corrective action in the event of a release from a petroleum storage tank, taking into account the differences in exposure due to the source of the release. The administrative regulations shall allow use of the options established in KRS 224.1-400 (18).
  3. Until the administrative regulations required by subsection (2) of this section are adopted, the cabinet shall allow a person required to take corrective action in the event of a release of petroleum or petroleum products from a source other than a petroleum storage tank to use the options and provisions established in KRS 224.1-400 (18) to (21). The cabinet shall approve use of the corrective action option after ensuring that implementation will adequately protect human health, safety, and the environment.

History. Enact. Acts 1994, ch. 429, § 2, effective July 15, 1994.

Compiler’s Notes.

This section was formerly compiled as KRS 224.01-405 .

Research References and Practice Aids

Journal of Natural Resources & Environmental Law.

Articles, Common Law Remedies Available for Petroleum Contamination of Soil and Groundwater in Kentucky, 13 J. Nat. Resources & Envtl. L. 1 (1998-99).

Northern Kentucky Law Review.

Reynolds, Who’s Going to Regulate NORM?, 22 N. Ky. L. Rev. 5 (1995).

Sanders, Kentucky Adopts Risk Assessment for Closing Hazardous Waste Units, 22 N. Ky. L. Rev. 37 (1995).

Perkins, Petroleum Storage Regulation in Kentucky, 22 N. Ky. L. Rev. 59 (1995).

Elliot, Kentucky’s Environmental Self-Audit Privilege: State Protection Or Increased Federal Scrutiny?, 23 N. Ky. L. Rev. 1 (1995).

224.1-410. Legislative findings regarding methamphetamine contamination — Definitions — Decontamination standards — Procedures for assessment — Tiered response system — Certification by owner that property cleaned and standard met — Certification of decontamination contractors — Posting methamphetamine contamination notice — Written notice of property contamination to buyer or lessee — Integrated state effort — Federal funding to be pursued.

  1. The General Assembly finds that properties contaminated with hazardous chemical residues created by the manufacture of methamphetamine endanger innocent members of the public due to exposure to these residues where properties are not properly decontaminated prior to the subsequent rental, sale, or use of the properties. Remediation of properties has been frustrated by a lack of comprehensive standards and procedures for decontamination of properties found to have been involved with methamphetamine production. The purpose of this section where law enforcement has found evidence of the manufacture of methamphetamine is to protect the public health, safety, and welfare by providing specific cleanup standards and procedures.
  2. As used in this section, the following definitions shall apply:
    1. “Clandestine methamphetamine lab” means any inhabitable property used for the manufacture of methamphetamine as defined by KRS 218A.1431 ;
    2. “Contaminated property” means any inhabitable property that has been used to manufacture methamphetamine and has been assessed as containing methamphetamine contamination;
    3. “Decontamination standards” means standards used to determine that a contaminated property has become decontaminated;
    4. “Inhabitable property” means any building or structure and any related curtilage, water, water system, or sewer system used as a clandestine methamphetamine drug lab that is intended to be primarily occupied by people, including a mobile home or an individual unit of a multifamily housing unit, that may be sold, leased, or rented for any length of time. “Inhabitable property” shall not include a hotel, as defined in KRS 219.011 ;
    5. “Surface material” means any porous or nonporous substance common to the interior of a building or structure, including but not limited to ceilings and walls, window coverings, floor and floor coverings, counters, furniture, heating and cooling duct work, and any other surface to which inhabitants of the building or structure may be exposed; and
    6. “Related hazardous material or hazardous waste” means any hazardous waste as defined in this chapter or hazardous material as defined in KRS 174.405 that is related to the clandestine production of methamphetamine.
    1. The cabinet shall promulgate administrative regulations providing for decontamination standards for contaminated property, including: (3) (a) The cabinet shall promulgate administrative regulations providing for decontamination standards for contaminated property, including:
      1. Decontamination standards for methamphetamine and methamphetamine precursors;
      2. Decontamination standards for materials used in methamphetamine production, including related hazardous material or hazardous waste; and
      3. Sampling and testing standards for contaminated properties with a tiered response system for decontamination services.
    2. Absent administrative regulations described in this subsection, the decontamination standard for methamphetamine inside inhabitable property is less than or equal to one-tenth of one (0.1) microgram of methamphetamine per one hundred (100) square centimeters of surface material.
  3. The Department of Kentucky State Police shall promulgate administrative regulations establishing assessment procedures for determining if an inhabitable property is a contaminated property.
  4. Upon a determination that an inhabitable property is a contaminated property under subsection (4) of this section, the state or local law enforcement agency shall notify the cabinet of its findings and results of assessment.
    1. The cabinet shall promulgate administrative regulations to establish a reasonable, appropriate, and protective tiered response system to address the level of decontamination services required for a contaminated property based upon the degree of methamphetamine production and the degree of potential contamination resulting from methamphetamine production as indicated by the results of assessment by responding state or local law enforcement. (6) (a) The cabinet shall promulgate administrative regulations to establish a reasonable, appropriate, and protective tiered response system to address the level of decontamination services required for a contaminated property based upon the degree of methamphetamine production and the degree of potential contamination resulting from methamphetamine production as indicated by the results of assessment by responding state or local law enforcement.
    2. Tier 1 shall be for a transient contaminated property where the manufacturing of methamphetamine with anhydrous ammonia was initiated but only limited amounts of reagents or precursors are present and open, and where minimal spill and staining may be observed.
    3. Tier 2 shall be for a transient contaminated property where the manufacturing of methamphetamine with moderate activity or the use of red phosphorous is evident but only limited amounts of methamphetamine, reagents, or precursors were produced over a relatively short period of time, and where spills and staining may be observed.
    4. Tier 3 shall be for an entrenched contaminated property where precursors and reagent production has occurred over an extended period of time, from many weeks to several months, and where spills, staining, and burn pits may be observed. This tier designation shall be considered as the default tier designation for homes and rental property with recurring methamphetamine production.
    5. Tier 4 shall be for a mass production contaminated property where large quantities, such as multiple pounds, of methamphetamine, reagents, or precursors are present, and where potentially severe environmental effects may be indicated because of the large quantities of drummed or buried waste is discovered. Due to the potential for significant releases of hazardous substances, pollutants, or contaminants, law enforcement agencies shall consult with the cabinet prior to making this tier recommendation.
  5. Any contaminated property, regardless of the initial level of methamphetamine contamination, shall meet the decontamination standard set forth in subsection (3) of this section and, regardless of the results of testing or assessment, shall require at least a Tier 1 cleanup response. A property owner shall certify to the cabinet that the property has been cleaned to the standard set forth in subsection (3) of this section.
    1. Only contractors certified by the cabinet shall be authorized to conduct the decontamination services for inhabitable properties following the protocols of the tiered response system. The cabinet shall maintain a list of vendors and contractors with current certification to provide decontamination services. In order to become a certified contractor, a contractor shall: (8) (a) Only contractors certified by the cabinet shall be authorized to conduct the decontamination services for inhabitable properties following the protocols of the tiered response system. The cabinet shall maintain a list of vendors and contractors with current certification to provide decontamination services. In order to become a certified contractor, a contractor shall:
      1. Register with the cabinet;
      2. Post a surety bond or obtain other financial assurance, which shall include but is not limited to a corporate guarantee, financial test-based self-insurance, irrevocable letter of credit, or any combination of assurances, in the amount of one hundred thousand dollars ($100,000) for a Tier 1, 2, or 3 cleanup and two hundred fifty thousand dollars ($250,000) for a Tier 4 cleanup, which may be aggregated;
      3. Provide a certificate issued by an insurance company licensed to do business in Kentucky, certifying that the contractor has a public liability insurance policy in an amount deemed sufficient by the cabinet for any personal or property damages that might occur to third parties arising from the performance of decontamination services for inhabitable properties by the contractor or his or her employees or agents;
      4. Certify that decontamination will be performed safely and in accordance with 803 KAR 2:403; and
      5. Certify that each cleanup conducted meets the decontamination standard required by subsection (3) of this section.
    2. Any contractor who is certified by the cabinet, and whose certification is in good standing, prior to July 15, 2008, shall retain that certification without having to be recertified.
    3. Upon registration, the cabinet shall either accept or deny the contractor’s certification. The cabinet may revoke the certification of any contractor for cause and may collect the forfeited financial assurance of any contractor found to be in violation of this section. Forfeited financial assurance may be used by the cabinet to decontaminate inhabitable properties.
    4. The cabinet shall promulgate administrative regulations to establish standards and procedures for contractor certification and to establish reasonable fees to implement this section.
  6. When a state or local law enforcement agency investigates an inhabitable property that it has reason to believe has been used as a clandestine methamphetamine drug lab, the state or local law enforcement agency shall, at the request of the state or local health department under its respective authority pursuant to KRS Chapter 211 or 212, post a methamphetamine contamination notice on each exterior door of the inhabitable property, except that in the case of a multifamily housing unit, it shall post the notice on each entrance door to the individual unit. The Department for Public Health shall promulgate administrative regulations establishing the notice requirements and the process for removing the notice from inhabitable properties. Any homeowner listed on the deed of the dwelling may request an administrative hearing pursuant to KRS Chapter 13B to determine whether the methamphetamine contamination notice is proper by filing a request for appeal with the Department for Public Health within thirty (30) days of the methamphetamine contamination notice having been posted on the property. The responding state or local law enforcement agency shall, within three (3) business days of when the notice is posted, report it by fax or e-mail to the local health department.
  7. Any owner of contaminated property who leases, rents, or sells contaminated property upon which a methamphetamine contamination notice has been posted under subsection (9) of this section shall disclose in writing to any potential lessee, tenant, or buyer that the property is contaminated with methamphetamine and has not been decontaminated pursuant to the requirements set forth in this section. If the property has been decontaminated and released by the cabinet from the need for further action, notice under this subsection shall not be required. The Department for Public Health shall promulgate administrative regulations setting forth the disclosure requirements.
  8. Once contaminated property has been decontaminated in accordance with standards set forth in subsection (3) of this section, the cabinet shall make available to owners of contaminated property who lease or rent the inhabitable property information about federal income tax deductions or credits available to compensate for damage done to the property in commission of a crime, including methamphetamine production done by someone other than the owner.
  9. To effect the provisions and promote the purposes of this section, the Energy and Environment Cabinet, the Cabinet for Health and Family Services, and the Justice and Public Safety Cabinet shall integrate their efforts with other state agencies to provide information and training to the public about the health hazards associated with methamphetamine laboratories.
  10. The Energy and Environment Cabinet, the Cabinet for Health and Family Services, and the Justice and Public Safety Cabinet shall pursue funds from the federal government, through grants or any other funding source, to help pay for the cost of assessment and decontamination of inhabitable properties.

History. Enact. Acts 2007, ch. 83, § 1, effective June 26, 2007; 2008, ch. 161, § 1, effective July 15, 2008; 2010, ch. 24, § 348, effective July 15, 2010.

Compiler’s Notes.

This section was formerly compiled as KRS 224.01-410 .

Legislative Research Commission Note.

(7/15/2008). The internal numbering of subsection (6) of this section has been altered from that of 2008 Ky. Acts ch. 161, sec. 1, under the authority of KRS 7.136 .

(7/15/2008). A manifest clerical or typographical error in subsection (10) of this section has been corrected by the reviser of Statutes under the authority of KRS 7.136 .

(6/26/2007). The numbering of subsections in this section has been altered from the numbering of 2007 Ky. Acts ch. 83, sec. 1, by the Reviser of Statutes under the authority of KRS 7.136 .

(6/26/2007). 2007 Ky. Acts ch. 85, relating to the creation and organization of the Justice and Public Safety Cabinet, instructs the Reviser of Statutes to correct statutory references to agencies and officers whose names have been changed in that Act. Such a correction has been made in this section.

(6/26/2007). A manifest clerical or typographical error in subsection (6) of this section has been corrected by the Reviser of Statutes under the authority of KRS 7.136 .

224.1-415. Brownfield Redevelopment Program — Conditions under which property owner not liable for corrective action — Administrative regulations.

  1. A Brownfield Redevelopment Program is established and shall be administered by the cabinet.
  2. In addition to any other defenses provided by law, a person that owns real property where a release of petroleum governed by KRS 224.1-405 or a release of a hazardous substance, pollutant, or contaminant governed by KRS 224.1-400 has occurred shall not be liable for performing characterization, correcting the effects of the release on the environment, or performing corrective action of the release if:
    1. The person certifies to the cabinet and the cabinet finds that:
      1. The release occurred prior to the property owner’s acquisition of the property;
      2. The property owner made all appropriate inquiries into previous ownership and uses of the property in accordance with generally accepted practices;
      3. The property owner or a responsible party has provided all legally required notices under this chapter with respect to hazardous substances, pollutants, contaminants, petroleum, or petroleum products found at the property;
      4. The property owner is in compliance with all land use restrictions and will not impede the effectiveness or integrity of any institutional control required for the property;
      5. The property owner complied with any information requests by the cabinet under this chapter;
      6. The property owner is not and has not been affiliated with any person who is potentially liable for the release of hazardous substances, pollutants, contaminants, petroleum, or petroleum products on the property pursuant to KRS 224.1-400 , 224.1-405 , or 224.60-135 through:
        1. Direct or indirect familial relationship;
        2. Any contractual, corporate, or financial relationship, excluding relationships created by instruments conveying or financing title or by contracts for sale of goods or services; or
        3. Reorganization of a business entity that was potentially liable; and
      7. The property owner has not caused or contributed to the release;
    2. The cabinet concurs in writing that the intended future use of the property will not interfere with remediation of the release as required by the cabinet, increase the impacts of the release on human health or the environment, or expose the public and environment to unacceptable harm; and
    3. The person provides any person conducting characterization, correcting of the effect of the release on the environment, or undertaking corrective or remedial action, as well as the cabinet, with access to the property so necessary remediation activities can be completed.
  3. The nonliability provided in this section shall not apply to any real property for which a false certification is made to the cabinet.
  4. The cabinet may, by administrative regulation, establish procedures for the implementation of this section and KRS 224.60-135 and 224.60-138 , which may include administrative forms, technical standards, and fees to cover the cost of the cabinet’s reviews.

History. Enact. Acts 2012, ch. 105, § 1, effective July 12, 2012.

Compiler’s Notes.

This section was formerly compiled as KRS 224.01-415 .

No Further Remediation Letter

224.1-450. Legislative intent regarding issuance of letter.

It is the intent of the General Assembly to encourage economic development by allowing the issuance of a No Further Remediation Letter to a public entity for a site when the remediation plan has been successfully completed.

History. Enact. Acts 1996, ch. 194, § 68, effective July 15, 1996.

Compiler’s Notes.

This section was formerly compiled as KRS 224.01-450 .

Research References and Practice Aids

Northern Kentucky Law Review.

Articles, “Overview of Brownfield Redevelopment Initiatives”, see 30-32 for Ky. specific legislation, 25 N. Ky. L. Rev. 1 (1997).

224.1-455. Definitions for KRS 224.1-450 to 224.1-465.

As used in KRS 224.1-450 to 224.1-465 , unless the context otherwise requires:

  1. “Property” means a parcel or parcels of real property owned by a public entity upon which a release of a hazardous substance, pollutant, or contaminant has occurred.
  2. “Public entity” means the Commonwealth of Kentucky, a county, city, urban-county government, charter county government, or any of their agencies, departments, or any KRS 58.180 nonprofit nonstock corporation.
  3. “Remediation plan” means a plan approved by the cabinet whereby the public entity will remediate hazardous substances, pollutants, or contaminants released upon the property.

History. Enact. Acts 1996, ch. 194, § 69, effective July 15, 1996.

Compiler’s Notes.

This section was formerly compiled as KRS 224.01-455 .

Research References and Practice Aids

Northern Kentucky Law Review.

Articles, “Overview of Brownfield Redevelopment Initiatives”, see 30-32 for Ky. specific legislation, 25 N. Ky. L. Rev. 1 (1997).

224.1-460. Letter — Contents — Issuance.

  1. Any public entity may apply to the cabinet to obtain a No Further Remediation Letter, created by KRS 224.1-465 , for a property. The application shall contain the following information:
    1. A legal description of the property;
    2. A copy of the deed for the property;
    3. An environmental site assessment of the site sufficient to characterize the extent of any contamination of the site;
    4. A proposed plan to remediate the environmental contamination upon the site; and
    5. The proposed use of the property intended by the public entity after obtaining the No Further Remediation Letter.
  2. Upon receipt of an application from a public entity for a No Further Remediation Letter, the cabinet may approve the application, and upon the expiration of a period for public comment on the application deny the application, or enter into negotiations with the public entity to modify the proposed remediation plan to make it acceptable to the cabinet. If the public entity and the cabinet negotiate an agreement on the proposed remediation plan, the cabinet shall approve the amended application.
  3. When the cabinet approves the remediation plan the public entity shall undertake or cause to be undertaken the actions required by the plan.
  4. Upon satisfactory completion of the approved remediation plan the cabinet shall issue the No Further Remediation Letter, which is created by KRS 224.1-465 , to the public entity.

History. Enact. Acts 1996, ch. 194, § 70, effective July 15, 1996.

Compiler’s Notes.

This section was formerly compiled as KRS 224.01-460 .

Research References and Practice Aids

Northern Kentucky Law Review.

Articles, “Overview of Brownfield Redevelopment Initiatives”, see 30-32 for Ky. specific legislation, 25 N. Ky. L. Rev. 1 (1997).

224.1-465. Effect of letter — Limitations — Contents — Application — Voidable circumstances — Recording.

  1. The cabinet’s issuance of a No Further Remediation Letter signifies a release from further responsibilities for a remediation plan approved under KRS 224.1-460 and any further responsibilities under KRS 224.1-400 to undertake any other remedial action on the site. The issuance of a No Further Remediation Letter shall be considered prima facie evidence that the site does not constitute a threat to human health and the environment and does not require additional remediation under KRS 224.1-400 , if the site is utilized in accordance with the terms of the No Further Remediation Letter.
  2. A No Further Remediation Letter issued pursuant to KRS 224.1-460 (4) shall be limited to and include all of the following:
    1. An acknowledgment that the requirements of the remediation plan were satisfied or are being satisfied;
    2. A description of the location of the property by reference to a legal description or a plat showing the property’s boundaries;
    3. The remediation objectives, specifying, as appropriate, any monitoring requirements or any land use limitation imposed as a result of the remediation efforts;
    4. A statement that the cabinet’s issuance of the No Further Remediation Letter signifies that the performance of the approved remediation plan has secured release from further responsibilities under KRS 224.1-400 and is considered prima facie evidence that the site does not constitute a threat to human health and the environment and does not require further remediation under KRS 224.1-400 , if the site is utilized in accordance with the terms of the No Further Remediation Letter;
    5. A prohibition against the use by the public entity of the property in a manner inconsistent with any land use limitation imposed as a result of the remediation efforts without additional appropriate remedial activities and a requirement that if the public entity conveys the property to a third party the deed contains binding land use limitations in accordance with the remediation plan; and
    6. A description of any preventive, engineering, and institutional controls required in the remediation plan and notification that failure to manage and maintain the controls in full compliance with the terms of the remediation plan may result in voidance of the No Further Remediation Letter.
  3. The No Further Remediation Letter shall apply to the property in favor of the following persons:
    1. The public entity to which the No Further Remediation Letter was issued;
    2. Any mortgagee or trustee, or their assignee, transferee, or any successor in interest, of a deed of trust of the public entity property;
    3. Any successor in interest of the public entity;
    4. Any transferee of the public entity whether the transfer was by sale, bankruptcy proceeding, partition, settlement, or adjudication of any civil action, charitable gift, or bequest; and
    5. Any financial institution, or their successor in interest, that after the date the No Further Remediation Letter was issued acquire the ownership, operation, management, or control of the property through foreclosure, or under the terms of a security interest held by the financial institution, or under the terms of an extension of credit made by the financial institution.
  4. The No Further Remediation Letter shall be voidable if the site is not managed in full compliance with KRS 224.1-460 and this section or the approved remediation plan upon which the issuance of the No Further Remediation Letter was based, or if the cabinet determines that any facts upon which the remediation plan was based, were unknown at the time the No Further Remediation Letter was issued, or were known but not disclosed or false.
  5. The public entity shall record the No Further Remediation Letter with the county clerk of the county in which the property is located.

History. Enact. Acts 1996, ch. 194, § 71, effective July 15, 1996.

Compiler’s Notes.

This section was formerly compiled as KRS 224.01-465 .

Research References and Practice Aids

Northern Kentucky Law Review.

Articles, “Overview of Brownfield Redevelopment Initiatives”, see 30-32 for Ky. specific legislation, 25 N. Ky. L. Rev. 1 (1997).

KRS 224.1-510 to 224.1-532 Voluntary Environmental Remediation

224.1-510. Legislative findings — Inapplicability to licensed radioactive materials facilities.

KRS 224.1-510 to 224.1-532 and KRS 154.26-120 , 154.28-130 , 224.1-020 , and 224A.013 are intended to establish an efficient and predictable process, within the context of KRS 224.1-400 and 224.1-405 , to promote voluntary cleanup and redevelopment of properties suspected of environmental contamination. This process will further the public purposes of protecting human health, safety, and the environment while stimulating economic development and job creation through the construction of new residential, commercial, and industrial facilities. KRS 224.1-510 to 224.1-532 and KRS 154.26-120 , 154.28-130 , 224.1-020 , and 224A.013 shall not apply to radioactive material facilities licensed under KRS 211.842 to 211.852 and the administrative regulations promulgated under these sections.

History. Enact. Acts 2001, ch. 128, § 1, effective June 21, 2001.

Compiler’s Notes.

Section 18 of Chapter 128 of the Acts of the 2001 Regular Session read:

“This Act may be cited as the Voluntary Environmental Remediation Act.”

This section was formerly compiled as KRS 224.01-510 .

224.1-512. Definitions for KRS 224.1-510 to 224.1-532.

As used in KRS 224.1-510 to 224.1-532 :

  1. “Hazardous substance” shall have the meaning in KRS 224.1-400 (1)(a) and also include any pollutant or contaminant, as those terms are defined in KRS 224.1-400 (1)(f), any hazardous substance, pollutant, or contaminant designated by the cabinet in accordance with KRS 224.1-400(2), and any hazardous substance included in KRS 224.1-400(3);
  2. “Petroleum” shall have the meaning set forth in KRS 224.60-115 (15);
  3. “Petroleum storage tank” shall have the meaning set forth in KRS 224.60-115 (16);
  4. “Property” means a tract of real property for which an application has been submitted under KRS 224.1-514 ;
  5. “Remediation” means the characterization of a release of a hazardous substance or petroleum, in accordance with KRS 224.1-400 for hazardous substances or KRS 224.1-405 for petroleum, and any administrative regulations promulgated under those statutes, and actions necessary to correct the effects of the release on the environment, as required by KRS 224.1-400 for hazardous substances, pollutants, or contaminants or KRS 224.1-405 for petroleum, and any administrative regulations promulgated under those statutes; and
  6. “Site” shall have the meaning in KRS 224.1-400 (1)(c), and shall also refer to any area undergoing remediation as defined in subsection (5) of this section.

HISTORY: Enact. Acts 2001, ch. 128, § 2, effective June 21, 2001; 2018 ch. 98, § 1, effective July 14, 2018.

Compiler’s Notes.

This section was formerly compiled as KRS 224.01-512 .

224.1-514. Voluntary Environmental Remediation Program — Application for entry.

  1. A Voluntary Environmental Remediation Program is established and shall be administered by the cabinet in accordance with KRS 224.1-510 to 224.1-532 .
  2. Any person may apply to enter a property in the program, unless:
    1. The property is part of or contains a site which is on the National Priorities List established by the United States Environmental Protection Agency;
    2. The property is part of or contains a hazardous waste treatment, storage, or disposal facility for which a permit has been issued, or the site is otherwise the subject of hazardous waste closure or corrective action pursuant to KRS 224.46-520 or KRS 224.46-530 ;
    3. The property or site is the subject of state or federal environmental enforcement action relating to the release, for which the application is submitted; or
    4. The property or site presents an environmental emergency, as defined in KRS 224.1-400 .
  3. To apply to enter the voluntary environmental remediation program, an applicant shall:
    1. Complete an application provided by the cabinet;
    2. Identify any hazardous substance and any petroleum released or believed to be released to the environment at the site and provide a site characterization plan for the releases or threatened releases adequate to comply with KRS 224.1-400 , 224.1-405 , 224.1-510 to 224.1-532 , and any administrative regulations promulgated pursuant thereto;
    3. Submit a five thousand dollar ($5,000) nonrefundable application fee; and
    4. Publish the notice of application in the newspaper of largest circulation in the county in which the site is located. The notice shall include a reference to the local public library where pertinent documents related to the application may be found and reviewed by the public.
  4. Fees collected under KRS 224.1-510 to 224.1-532 shall be deposited in the hazardous waste management fund set out in KRS 224.46-580 (13). The cabinet shall use the fees to administer the voluntary environmental remediation program.
  5. The cabinet shall notify the Department for Public Health when the cabinet receives an application with information pertaining to an actual or threatened release of a hazardous substance over which the Department for Public Health has regulatory authority.
  6. Copies of the following documents shall be transmitted by the applicant, as they become available, to the local public library:
    1. Characterization plan;
    2. Characterization report;
    3. Corrective action plan;
    4. Corrective action completion report;
    5. Any notices of deficiency and any responses thereto; and
    6. Corrective action liability agreement.

HISTORY: Enact. Acts 2001, ch. 128, § 3, effective June 21, 2001; 2018 ch. 98, § 2, effective July 14, 2018.

Compiler’s Notes.

This section was formerly compiled as KRS 224.01-514 .

224.1-516. Action on application — Reapplication.

  1. The cabinet shall notify an applicant for the voluntary environmental remediation program within thirty (30) working days of receipt of a new or revised application as to whether the application is complete. Within forty-five (45) working days of determining that an application is complete, the cabinet shall notify the applicant as to whether the application is accepted, deemed technically deficient, or denied.
  2. The cabinet shall deny an application if:
    1. The cabinet determines the property is ineligible to participate in the program under KRS 224.1-510 to 224.1-532 ; or
    2. The applicant fails to satisfy the requirements of KRS 224.1-510 to 224.1-532 .
  3. If the cabinet denies a new or revised application, the cabinet shall notify the applicant in writing, stating the reasons for the denial.
  4. If the cabinet determines that the application is technically deficient, the applicant may submit a revised application to address deficiencies identified by the cabinet without incurring an additional fee.

HISTORY: Enact. Acts 2001, ch. 128, § 4, effective June 21, 2001; 2018 ch. 98, § 3, effective July 14, 2018.

Legislative Research Commission Notes.

(7/14/2018). When this statute was amended in 2018 Ky. Acts ch. 98, sec. 3, it contained a reference to satisfying “the requirements of this Act….” The Reviser of Statutes has changed that language to read “the requirements of KRS 224.1-510 to 224.1-532 ” under the authority of KRS 7.136 .

Compiler's Notes.

This section was formerly compiled as KRS 224.01-516 .

224.1-518. Voluntary remediation agreed order. [Repealed]

HISTORY: Enact. Acts 2001, ch. 128, § 5, effective June 21, 2001; repealed by 2018 ch. 98, § 9, effective July 14, 2018.

224.1-520. Site characterization report — Corrective action plan.

  1. Once an application has been accepted by the cabinet, the applicant shall submit to the cabinet within the timeframe proposed in the site characterization plan, a site characterization report and a corrective action plan that meet the requirements of KRS 224.1-400 , 224.1-405 , and 224.1-510 to 224.1-532 and any administrative regulations promulgated under those statutes. The cabinet may grant reasonable extensions to the submittal timeframes specified in the site characterization plan if requested by the applicant.
  2. The corrective action plan for properties involving hazardous substances over which the Department for Public Health has regulatory authority shall, at the time of submittal to the cabinet, also be submitted to the commissioner of the Department for Public Health.

HISTORY: Enact. Acts 2001, ch. 128, § 6, effective June 21, 2001; 2018 ch. 98, § 4, effective July 14, 2018.

Compiler’s Notes.

This section was formerly compiled as KRS 224.01-520 .

224.1-522. Cabinet’s review and action on corrective action plan — Right of appeal of denial.

  1. Within one hundred twenty (120) working days of receipt of a corrective action plan and the completion of the public comment period required by KRS 224.1-524 , the cabinet shall:
    1. Review and evaluate the characterization and the corrective action plan for compliance with KRS 224.1-400 , 224.1-405 , and 224.1-510 to 224.1-532 and any administrative regulations promulgated under those statutes, and if necessary, inspect the property and any relevant conditions in the area surrounding the property; and
    2. Approve or deny the corrective action plan.
  2. If the cabinet approves a corrective action plan, the cabinet shall, in writing, notify the applicant and commenters.
  3. The cabinet shall deny a corrective action plan for failure to comply with KRS 224.1-400 , 224.1-405 , or 224.1-510 to 224.1-532 or any administrative regulations promulgated under those statutes. If the cabinet denies a corrective action plan, it shall notify, in writing, the applicant and commenters, specifying the reasons for the denial. The cabinet shall also inform the applicant of the right to appeal the decision in accordance with KRS 224.10-420 (2). Within thirty (30) days of receipt of the notice of denial, the applicant shall inform the cabinet if a revised corrective action plan or corrective action completion report will be submitted.

HISTORY: Enact. Acts 2001, ch. 128, § 7, effective June 21, 2001; 2018 ch. 98, § 5, effective July 14, 2018.

Compiler’s Notes.

This section was formerly compiled as KRS 224.01-522 .

224.1-524. Notification to local governments and public of proposed corrective action plan — Comment period — Public hearing.

  1. Within ten (10) days from the date the applicant submits a corrective action plan to the cabinet, the applicant shall:
    1. Submit for publication in a newspaper of general circulation in the county or counties where the property is located, a notice requesting public comment on the corrective action plan, and submit to the cabinet a copy of the notice as published, within ten (10) days of its publication. The public notice shall also contain a reference to the local public library where pertinent documents related to the corrective action plan may be found;
    2. Notify local government units affected by the remediation of the provisions of the corrective action plan; and
    3. Until the corrective action plan has been approved by the cabinet, post a sign on the property stating that a corrective action plan for remediation of the site is undergoing review by the cabinet and, if approved, remediation will be conducted in accordance with the approved plan. The sign shall also provide information on where and when the corrective action plan is available for public review and comment.
  2. A comment period of at least thirty (30) days shall follow publication of the notice. During the comment period, any person may submit written comments to the cabinet concerning the corrective action plan and may request a public hearing. The cabinet may hold a public hearing if the request is made.
  3. The cabinet may hold a public hearing in any geographical area affected by the remediation on the question of whether to approve or deny the corrective action plan.
  4. The cabinet shall consider all written comments and public testimony prior to taking any action.

HISTORY: Enact. Acts 2001, ch. 128, § 8, effective June 21, 2001; 2018 ch. 98, § 6, effective July 14, 2018.

Compiler’s Notes.

This section was formerly compiled as KRS 224.01-524 .

224.1-526. Corrective action plan completion report — Review by cabinet — Issuance and effect of corrective action liability — Agreement.

  1. Upon completion of those tasks outlined in an approved corrective action plan, the applicant shall submit for the cabinet’s review, within the timeframe proposed in the corrective action plan, a corrective action completion report, and shall certify therein that the applicant has successfully completed remediation in compliance with the approved corrective action plan.
  2. The cabinet shall review the corrective action completion report in the same manner as it reviewed the corrective action plan.
  3. The cabinet may conduct its own investigation including but not limited to its own characterization to verify that remediation has been completed in compliance with the approved corrective action plan.
  4. If the cabinet determines that no further remediation is required under the approved corrective action plan or any administrative regulations promulgated under KRS 224.1-400 , 224.1-405 , and 224.1-510 to 224.1-532 , the cabinet shall issue the applicant a corrective action liability agreement.
  5. With respect to the releases identified in the corrective action plan, the corrective action liability agreement shall preclude any suit or claim by the Commonwealth for the prosecution of civil or administrative enforcement action against the applicant for failure to perform remediation under KRS 224.1-400 , 224.1-405 , any administrative regulations promulgated under these statutes, or the Federal Comprehensive Environmental Response Compensation and Liability Act as amended, 42 U.S.C. sec. 9601 et seq., for injunctive relief, lien assertion, reimbursement of costs, or civil penalties imposed under KRS 224.99-010 for failure to perform remediation under KRS 224.1-400 or 224.1-405 and any administrative regulations promulgated under these statutes.
  6. The corrective action liability agreement shall be in recordable form, and shall be recorded by the applicant, along with all deed restrictions and institutional controls approved by the cabinet, among the real estate records in the office of the county clerk where the property is located, within thirty (30) days of issuance by the cabinet. The corrective action liability agreement and all deed restrictions, restrictive covenants, and institutional controls approved by the cabinet as part of the approved corrective action plan shall run with the land and inure to the benefit of, and be enforceable by the cabinet against the applicant and all subsequent landowners, assignees, transferees, or successors. The corrective action liability agreement shall not be effective until it is recorded and a certified copy of the record instrument is delivered to the cabinet.
  7. The corrective action liability agreement shall not apply to:
    1. Releases other than those expressly identified in the corrective action plan;
    2. Claims based on the failure of the applicant, or the failure of any successive landowner as applicable, to comply with a requirement of KRS 224.1-510 to 224.1-532 , the approved corrective action plan, or the approved corrective action completion report, including any required land use restrictions and engineering or institutional controls;
    3. Liability resulting from the applicant’s exacerbation of the releases identified in the corrective action plan;
    4. Criminal liability;
    5. Petroleum storage tanks;
    6. Claims or liability based on or resulting from misrepresentations or intentional omissions by the applicant;
    7. Liability for any conditions at the site that were not known to the cabinet when the cabinet approved the corrective action plan or the corrective action completion report, provided those conditions prevent the remediation from being protective of human health, safety, and the environment;
    8. Claims based on changes in the development of scientific knowledge, as reflected in published peer-reviewed health or environmental standards, that indicate that the remediation is no longer protective of human health, safety, and the environment;
    9. An environmental emergency as defined in KRS 224.1-400 ;
    10. Any cabinet action for damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release pursuant to the Federal Comprehensive Environmental Response Compensation and Liability Act as amended, 42 U.S.C. sec. 9601 et seq.; and
    11. Any administrative or civil action by the cabinet not expressly identified in subsection (5) of this section.
  8. Subject to subsection (7) of this section, the issuance of a corrective action liability agreement for a brownfield site, as defined in 42 U.S.C. sec. 9601(39) , shall preclude any suit or claim under state law to compel the performance of remediation in excess of that required in the approved corrective action plan.
  9. The issuance of a corrective action liability agreement shall not be construed to limit:
    1. Appeals of final cabinet orders and determinations as provided for in this chapter;
    2. Actions against the cabinet to compel compliance with the terms of the corrective action plan; or
    3. The availability of remedies to persons, other than the cabinet, for injury to property or person.

HISTORY: Enact. Acts 2001, ch. 128, § 9, effective June 21, 2001; 2006, ch. 125, § 2, effective July 12, 2006; 2018 ch. 98, § 7, effective July 14, 2018.

Compiler’s Notes.

This section was formerly compiled as KRS 224.01-526 .

224.1-528. Final actions by cabinet that are appealable.

The following actions of the cabinet shall be considered final determinations under KRS 224.1-510 to 224.1-532 that may be appealed in accordance with KRS 224.10-420 (2):

  1. Denial of an application to participate in the voluntary environmental remediation program;
  2. Denial or approval of a corrective action plan;
  3. Denial or approval of a corrective action completion report; and
  4. Issuance or denial of a corrective action liability agreement.

HISTORY: Enact. Acts 2001, ch. 128, § 10, effective June 21, 2001; 2018 ch. 98, § 8, effective July 14, 2018.

Compiler’s Notes.

This section was formerly compiled as KRS 224.01-528 .

224.1-530. Screening levels relating to remediation — Tiered remediation management — Administrative regulations.

  1. Notwithstanding any provision of law or administrative regulation to the contrary, the numerical values contained in the most current version of the document titled “Regional Screening Level (RSL) Table” published by the United States Environmental Protection Agency’s Region 3 as of June 8, 2011, are hereby established as screening levels and shall be used by the cabinet in conformance with the guidance set out in the Risk-Based Concentration Table User’s Guide. It is not the intent of this section to establish these levels as the cleanup standards for individual contaminants that may be present at any site.
  2. Within one (1) year from June 21, 2001, the cabinet shall promulgate regulations establishing standards under KRS 224.1-400 and 224.1-405 with respect to hazardous substances, pollutants, contaminants, petroleum, or petroleum products, that are protective of human health, safety, and the environment.
  3. Within one (1) year from June 21, 2001, the cabinet shall promulgate a regulation defining tiered remediation management options that account for the following:
    1. Current and proposed land use;
    2. Zoning, if applicable, of the property and surrounding properties; and
    3. The nature and extent of the contamination.
  4. The cabinet may promulgate administrative regulations that adopt and incorporate updated versions of the Regional Screening Level (RSL) Table to be used under this section.
  5. Nothing in this section shall affect or impair the ability of the cabinet to implement and enforce the provisions of KRS 224.1-400 and 224.1-405 .
  6. Nothing in this section shall be construed to limit the options available to the applicant under KRS 224.1-400 (18) to 224.1-400 (21).

History. Enact. Acts 2001, ch. 128, § 11, effective June 21, 2001; 2011, ch. 86, § 1, effective June 8, 2011.

Compiler’s Notes.

This section was formerly compiled as KRS 224.01-530 .

224.1-532. Implementation of KRS 224.1-510 to 224.1-532 — Authority to promulgate administrative regulations.

The cabinet shall implement KRS 224.1-510 to 224.1-532 from and after June 21, 2001. The cabinet shall publish forms by October 31, 2001, and may promulgate necessary administrative regulations, to implement KRS 224.1-510 to 224.1-532 .

History. Enact. Acts 2001, ch. 128, § 12, effective June 21, 2001.

Compiler’s Notes.

This section was formerly compiled as KRS 224.01-532 .

SUBCHAPTER 10. Energy and Environment Cabinet

Organization

224.10-010. Natural Resources and Environmental Protection Cabinet — Secretary. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 74, Art. III, § 1) was repealed by Acts 1992, ch. 13, § 13, effective July 14, 1992.

224.10-020. Departments within the cabinet — Offices and divisions within the departments — Appointments.

  1. There is established within the cabinet a Department for Natural Resources, a Department for Environmental Protection, an Office of Administrative Services, and an Office of Energy Policy. Each department shall be headed by a commissioner, and each office shall be headed by an executive director. Commissioners and executive directors shall be appointed by the secretary with the approval of the Governor as required by KRS 12.050 . Both commissioners and executive directors shall be directly responsible to the secretary and shall perform the functions, powers, and duties as provided by law and as prescribed by the secretary.
  2. There is established within the Department for Natural Resources a Division of Forestry, a Division of Conservation, a Division of Mine Reclamation and Enforcement, a Division of Mine Permits, a Division of Abandoned Mine Lands, a Division of Oil and Gas, a Division of Mine Safety, and an Office of the Reclamation Guaranty Fund. Each division shall be headed by a director, and each office shall be headed by an executive director. Directors and executive directors shall be appointed by the secretary with the approval of the Governor as required by KRS 12.050 , except for the director of the Division of Conservation, who shall be appointed in accordance with KRS 146.100 . Both directors and executive directors shall be directly responsible to the commissioner and shall perform the functions, powers, and duties as provided by law and as prescribed by the secretary.
  3. There is established within the Department for Environmental Protection a Division of Water, a Division for Air Quality, a Division of Waste Management, a Division of Enforcement, a Division of Compliance Assistance, and a Division of Environmental Program Support. Each division shall be headed by a director appointed by the secretary with the approval of the Governor as required by KRS 12.050 . Directors shall be directly responsible to the commissioner and shall perform the functions, powers, and duties as provided by law and as prescribed by the secretary.
  4. There is established within the Office of Energy Policy a Division of Energy Assistance. The division shall be headed by a director. The director shall be appointed by the secretary with the approval of the Governor as required by KRS 12.050 .
  5. There is established within the Office of Administrative Services a Division of Human Resources Management, a Division of Financial Management, and a Division of Information Services. Each division shall be headed by a director. Directors shall be appointed by the secretary with the approval of the Governor as required by KRS 12.050 .

HISTORY: Enact. Acts 1974, ch. 74, Art. III, § 2; 1976, ch. 290, § 1; 1978, ch. 155, § 122, effective June 17, 1978; 1990, ch. 399, § 1, effective July 13, 1990; 1996, ch. 360, § 1, effective July 15, 1996; 2005, ch. 123, § 21, effective June 20, 2005; 2010, ch. 24, § 349, effective July 15, 2010; 2015 ch. 87, § 4, effective June 24, 2015; 2018 ch. 29, § 61, effective July 14, 2018; 2018 ch. 31, § 3, effective July 14, 2018.

Compiler’s Notes.

This section was formerly compiled as KRS 224.012 .

Legislative Research Commission Notes.

(7/14/2018). This statute was amended by 2018 Ky. Acts chs. 29 and 31, which do not appear to be in conflict and have been codified together.

(6/20/2005). Although 2005 Ky. Acts ch. 123, sec. 21, contains a reference to “Section 64 of this Act” (KRS 353.510 ) in subsection (2) of this statute, that reference has been codified as KRS 353.530 (2005 Ky. Acts ch. 123, sec. 65) because a section was added to the introduced version of the bill in the Senate Committee Substitute, but the necessary adjustment to this internal reference was not made. This manifest typographical or clerical error and has been corrected in codification under KRS 7.136(1)(h).

NOTES TO DECISIONS

1.Regulatory Violations.

Where an inspector from Kentucky Division of Mine Reclamation and Enforcement issued a “notice of non-compliance” citing defendants for regulatory violations for failing to properly maintain a coal mine and an appropriate buffer zone surrounding plaintiff’s gas pipeline, defendants did not contest the allegations and they were deemed admitted. In a tort suit against defendants after a landslide damaged a gas pipeline, most of the elements of issue preclusion were met by the final order from the state regulators because the Cabinet Secretary was acting in a sufficiently judicial-like manner, and defendants had an adequate opportunity to litigate the issues before the Secretary. Columbia Gas Transmission, LLC v. Raven Co., 2014 U.S. Dist. LEXIS 80480 (E.D. Ky. June 13, 2014).

Research References and Practice Aids

Kentucky Law Journal.

Notes, Energy v. Environment: Who Wins in the Race for Coal in Kentucky, 64 Ky. L.J. 641 (1975-76).

Northern Kentucky Law Review.

Perkins, Petroleum Storage Regulation in Kentucky, 22 N. Ky. L. Rev. 59 (1995).

224.10-022. Office of the Secretary — Major organization units — Executive directors and general counsels — Appointments.

There is established in the Office of the Secretary an Office of Administrative Hearings, an Office of Communication, and an Office of Legislative and Intergovernmental Affairs. Each of these offices shall be headed by an executive director appointed by the secretary with the approval of the Governor as required by KRS 12.050 . There is also established in the Office of the Secretary an Office of Legal Services, headed by an executive director appointed by the secretary with the approval of the Governor in accordance with KRS 12.050 and 12.210 . The executive directors shall be directly responsible to the secretary and shall perform the functions, powers, and duties as provided by law and as prescribed by the secretary. There is established in the Office of Legal Services a Legal Division I and Legal Division II. Each of these divisions shall be headed by a general counsel appointed by the secretary with the approval of the Governor in accordance with KRS 12.050 and 12.210 . The general counsels shall be directly responsible to the executive director of the Office of Legal Services and shall perform the functions, powers, and duties as provided by law and as prescribed by the executive director. The Office of Kentucky Nature Preserves, which shall be headed by an executive director appointed by the secretary with the approval of the Governor in accordance with KRS 12.050, and the Mine Safety Review Commission, whose members shall be appointed by the Governor with the consent of the General Assembly, shall be attached to the Office of the Secretary. The Kentucky Public Service Commission, which shall be headed by an executive director appointed by the commission in accordance with KRS 278.100 , shall be attached to the Office of the Secretary for administrative purposes.

HISTORY: Enact. Acts 2005, ch. 123, § 4, effective June 20, 2005; 2010, ch. 24, § 350, effective July 15, 2010; 2017 ch. 117, § 18, effective June 29, 2017; 2018 ch. 29, § 62, effective July 14, 2018; 2019 ch. 50, § 1, effective June 27, 2019.

224.10-025. Office of Inspector General — Executive Director — Responsibilities — Secretary’s power to organize office. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 2000, ch. 3, § 1, effective July 14, 2000) was repealed by Acts 2010 ch. 24, § 1936, effective July 15, 2010.

224.10-030. Bodies attached for administrative purposes. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 74, Art. III, § 10) was repealed by Acts 2005, ch. 123, § 66, effective June 20, 2005.

224.10-040. Major assistants — Staff — Secretary may designate deputy to sign final orders.

  1. The secretary shall have any and all necessary power and authority, subject to appropriate provisions of the statutes, to create positions, to retain positions in effect prior to his or her appointment as secretary, and to employ the necessary personnel in such positions to enable the secretary to perform the functions of the cabinet. The secretary shall designate a person to act as deputy for him or her in the exercise of his duties in his absence.
  2. All appointments to positions not in the classified service shall be made pursuant to KRS 12.050 .
  3. The secretary may designate a deputy to sign any or all final orders of the cabinet, whether the orders are the result of hearing or agreement.

History. Enact. Acts 1974, ch. 74, Art. III, §§ 5, 6; 2005, ch. 123, § 22, effective June 20, 2005.

Compiler’s Notes.

This section was formerly compiled as KRS 224.015 .

224.10-050. Organization of cabinet.

The secretary shall establish the internal organization of the cabinet not established by statute or by executive order of the Governor, as ratified by the General Assembly, and shall divide the cabinet into such offices or divisions as the secretary may deem necessary to perform the functions, powers and duties of the cabinet, subject to the provisions of KRS Chapter 12. The secretary may retain or revise any offices or divisions in place prior to his or her appointment as secretary if retaining or revising the offices or divisions is not contrary to or in conflict with the organization of the cabinet established by statute or by executive order of the Governor, as ratified by the General Assembly.

History. Enact. Acts 1974, ch. 74, Art. III, § 4; 2005, ch. 123, § 23, effective June 20, 2005.

Compiler’s Notes.

This section was formerly compiled as KRS 224.014 .

224.10-052. Office of Occupations and Professions — Services for boards and commissions — Charges — Complaints — Acceptance of personal checks in payment of license renewal fees. [Renumbered]

History. Enact. Acts 1962, ch. 106, Art. V, § 7; 1974, ch. 74, Art. II, § 8; 1976, ch. 307, § 1; 1978, ch. 384, § 10, effective June 17, 1978; 1982, ch. 393, § 27, effective July 15, 1982; 1984, ch. 17, § 1, effective July 13, 1984; 1996, ch. 369, § 2, effective July 15, 1996; 2005, ch. 11, § 1, effective June 20, 2005; 2008, ch. 59, § 7, effective July 15, 2008; repealed and reenact., Acts 2009, ch. 12, § 16, effective June 25, 2009; 2010, ch. 15, § 2, effective July 15, 2010; 2010, ch. 24, § 351, effective July 15, 2010; 2012, ch. 76, § 23, effective July 12, 2012; 2014, ch. 90, § 17, effective July 15, 2014; renumbered 2017, ch. 178, § 5, effective April 11, 2017.

Compiler’s Notes.

This section was renumbered as KRS 324B.030 effective April 11, 2017.

224.10-053. Independent board or commission to use services of Office of Occupations and Professions — Exemptions — Report. [Renumbered]

History. Enact. Acts 2010, ch. 15, § 1, effective July 15, 2010; renumbered 2017, ch. 178, § 6, effective April 11, 2017.

Compiler’s Notes.

This section was renumbered as KRS 324B.040 effective April 11, 2017.

224.10-055. Powers and duties of Governor. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 91) was repealed by Acts 2005, ch. 123, § 66, effective June 20, 2005.

224.10-060. Prior energy regulations and actions in effect until modified. [Repealed.]

Compiler’s Notes.

This section (Repealed, reenact., and amend. Acts 1990, ch. 325, § 16, effective July 13, 1990) was repealed by Acts 2005, ch. 123, § 66, effective June 20, 2005.

Powers and Functions

224.10-100. Powers and duties of cabinet.

In addition to any other powers and duties vested in it by law, the cabinet shall have the authority, power, and duty to:

  1. Exercise general supervision of the administration and enforcement of this chapter, and all rules, regulations, and orders promulgated thereunder;
  2. Prepare and develop a comprehensive plan or plans related to the environment of the Commonwealth;
  3. Encourage industrial, commercial, residential, and community development which provides the best usage of land areas, maximizes environmental benefits, and minimizes the effects of less desirable environmental conditions;
  4. Develop and conduct a comprehensive program for the management of water, land, and air resources to assure their protection and balance utilization consistent with the environmental policy of the Commonwealth;
  5. Provide for the prevention, abatement, and control of all water, land, and air pollution, including but not limited to that related to particulates, pesticides, gases, dust, vapors, noise, radiation, odor, nutrients, heated liquid, or other contaminants;
  6. Provide for the control and regulation of surface coal mining and reclamation in a manner to accomplish the purposes of KRS Chapter 350;
  7. Secure necessary scientific, technical, administrative, and operational services, including laboratory facilities, by contract or otherwise;
  8. Collect and disseminate information and conduct educational and training programs relating to the protection of the environment;
  9. Appear and participate in proceedings before any federal regulatory agency involving or affecting the purposes of the cabinet;
  10. Enter and inspect any property or premises for the purpose of investigating either actual or suspected sources of pollution or contamination or for the purpose of ascertaining compliance or noncompliance with this chapter, or any regulation which may be promulgated thereunder;
  11. Conduct investigations and hold hearings and compel the attendance of witnesses and the production of accounts, books, and records by the issuance of subpoenas;
  12. Accept, receive, and administer grants or other funds or gifts from public and private agencies including the federal government for the purpose of carrying out any of the functions of the cabinet. The funds received by the cabinet shall be deposited in the State Treasury to the account of the cabinet;
  13. Request and receive the assistance of any state or municipal educational institution, experiment station, laboratory, or other agency when it is deemed necessary or beneficial by the cabinet in the performance of its duties;
  14. Advise, consult, and cooperate with other agencies of the Commonwealth, other states, the federal government, and interstate and interlocal agencies, and affected persons, groups, and industries;
  15. Formulate guides for measuring presently unidentified environmental values and relationships so they can be given appropriate consideration along with social, economic, and technical considerations in decision making;
  16. Monitor the environment to afford more effective and efficient control practices, to identify changes and conditions in ecological systems, and to warn of emergency conditions;
  17. Adopt, modify, or repeal with the recommendation of the commission any standard, regulation, or plan;
  18. Issue, after hearing, orders abating activities in violation of this chapter, or the provisions of this chapter, or the regulations promulgated pursuant thereto and requiring the adoption of the remedial measures the cabinet deems necessary;
  19. Issue, continue in effect, revoke, modify, suspend, or deny under such conditions as the cabinet may prescribe and require that applications be accompanied by plans, specifications, and other information the cabinet deems necessary for the following permits:
    1. Permits to discharge into any waters of the Commonwealth, and for the installation, alteration, expansion, or operation of any sewage system; however, the cabinet may refuse to issue the permits to any person, or any partnership, corporation, etc., of which the person owns more than ten percent (10%) interest, who has improperly constructed, operated, or maintained a sewage system willfully, through negligence, or because of lack of proper knowledge or qualifications until the time that person demonstrates proper qualifications to the cabinet and provides the cabinet with a performance bond;
    2. Permits for the installation, alteration, or use of any machine, equipment, device, or other article that may cause or contribute to air pollution or is intended primarily to prevent or control the emission of air pollution; or
    3. Permits for the establishment or construction and the operation or maintenance of waste disposal sites and facilities;
  20. May establish, by regulation, a fee or schedule of fees for the cost of processing applications for permits authorized by this chapter, and for the cost of processing applications for exemptions or partial exemptions which may include but not be limited to the administrative costs of a hearing held as a result of the exemption application, except that applicants for existing or proposed publicly owned facilities shall be exempt from any charge, other than emissions fees assessed pursuant to KRS 224.20-050 , and that certain nonprofit organizations shall be charged lower fees to process water discharge permits under KRS 224.16-050 (5);
  21. May require for persons discharging into the waters or onto the land of the Commonwealth, by regulation, order, or permit, technological levels of treatment and effluent limitations;
  22. Require, by regulation, that any person engaged in any operation regulated pursuant to this chapter install, maintain, and use at such locations and intervals as the cabinet may prescribe any equipment, device, or test and the methodologies and procedures for the use of the equipment, device, or test to monitor the nature and amount of any substance emitted or discharged into the ambient air or waters or land of the Commonwealth and to provide any information concerning the monitoring to the cabinet in accordance with the provisions of subsection (23) of this section;
  23. Require by regulation that any person engaged in any operation regulated pursuant to this chapter file with the cabinet reports containing information as to location, size, height, rate of emission or discharge, and composition of any substance discharged or emitted into the ambient air or into the waters or onto the land of the Commonwealth, and such other information the cabinet may require;
  24. Promulgate regulations, guidelines, and standards for waste planning and management activities, approve waste management facilities, develop and publish a comprehensive statewide plan for nonhazardous waste management which shall contain but not be limited to the provisions set forth in KRS 224.43-345 , and develop and publish a comprehensive statewide plan for hazardous waste management which shall contain but not be limited to the following:
    1. A description of current hazardous waste management practices and costs, including treatment and disposal, within the Commonwealth;
    2. An inventory and description of all existing facilities where hazardous waste is being generated, treated, recycled, stored, or disposed of, including an inventory of the deficiencies of present facilities in meeting current hazardous waste management needs and a statement of the ability of present hazardous waste management facilities to comply with state and federal laws relating to hazardous waste;
    3. A description of the sources of hazardous waste affecting the Commonwealth including the types and quantities of hazardous waste currently being generated and a projection of such activities as can be expected to continue for not less than twenty (20) years into the future; and
    4. An identification and continuing evaluation of those locations within the Commonwealth which are naturally or may be engineered to be suitable for the establishment of hazardous waste management facilities, and an identification of those general characteristics, values, and attributes which would render a particular location unsuitable, consistent with the policy of minimizing land disposal and encouraging the treatment and recycling of the wastes. The statewide waste management plans shall be developed consistent with state and federal laws relating to waste;
  25. Perform other acts necessary to carry out the duties and responsibilities described in this section;
  26. Preserve existing clean air resources while ensuring economic growth by issuing regulations, which shall be no more stringent than federal requirements, setting maximum allowable increases from stationary sources over baseline concentrations of air contaminants to prevent significant deterioration in areas meeting the state and national ambient air quality standards;
  27. Promulgate regulations concerning the bonding provisions of subsection (19)(a) of this section, setting forth bonding requirements, including but not limited to requirements for the amount, duration, release, and forfeiture of the bonds. All funds from the forfeiture of bonds required pursuant to this section shall be placed in the State Treasury and credited to a special trust and agency account which shall not lapse. The account shall be known as the “sewage treatment system rehabilitation fund” and all moneys placed in the fund shall be used for the elimination of nuisances and hazards created by sewage systems which were improperly built, operated, or maintained, and insofar as practicable be used to correct the problems at the same site for which the bond or other sureties were originally provided;
  28. Promulgate administrative regulations not inconsistent with the provisions of law administered by the cabinet; and
  29. Through the secretary or designee of the secretary, enter into, execute, and enforce reciprocal agreements with responsible officers of other states relating to compliance with the requirements of KRS Chapters 350, 351, and 352 and the administrative regulations promulgated under those chapters.

HISTORY: Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 3; 1974, ch. 355, § 2; 1978, ch. 113, § 3, effective June 17, 1978; 1978, ch. 266, § 2, effective June 17, 1978; 1980, ch. 264, § 2, effective July 15, 1980; 1980, ch. 377, § 10; 1984, ch. 111, § 109, effective July 13, 1984; 1986, ch. 455, § 1, effective July 15, 1986; 1990, ch. 325, § 15, effective July 13, 1990; 1990, ch. 412, § 1, effective July 13, 1990; 1994, ch. 162, § 3, effective July 15, 1994; 2007 (2nd Ex. Sess.), ch. 1, § 42, effective August 30, 2007; 2014, ch. 35, § 1, effective July 15, 2014; 2017 ch. 117, § 43, effective June 29, 2017.

Compiler’s Notes.

This section was formerly compiled as KRS 224.033 .

Legislative Research Commission Note.

(6/20/2005). 2005 Ky. Acts ch. 123, sec. 5, codified at KRS 224.10-103 , provides that the Division of Energy and all “personnel, functions, powers, and duties of the Division of Energy shall be transferred to the Tourism Development Cabinet.” The abolition of the Tourism Development Cabinet and creation of the Commerce Cabinet under Executive Order 2004-729 were confirmed by 2005 Ky. Acts ch. 95, in which the Office of Energy Policy is established and statutory references to the “Division of Energy” are changed to the “Office of Energy Policy.”

(9/28/93). The Division of Energy within the Department for Natural Resources of the Natural Resources and Environmental Protection Cabinet was made “responsible for subsections (28) and (29)” of this statute by 1990 Ky. Acts, ch. 325, sec. 14.

NOTES TO DECISIONS

1.Cooperation with Other Agencies.

Since there is nothing in this chapter that implies that the department should or could construe and apply laws governing another agency, the department properly yielded to the Utility Regulatory Commission’s interpretation of KRS 278.020 that a certificate of convenience and necessity is not required under subsection (3) of KRS 278.020 before a utility can seek preconstruction approval to build a power plant. Western Kraft Paper Group v. Department for Natural Resources Environmental Protection, 632 S.W.2d 454, 1981 Ky. App. LEXIS 323 (Ky. Ct. App. 1981).

2.Cleanup.

The Kentucky Natural Resources and Environmental Protection Cabinet has authority to enter a landfill to conduct a cleanup, pursuant to this section. Lykins v. Westinghouse Electric, 710 F. Supp. 1122, 1988 U.S. Dist. LEXIS 16630 (E.D. Ky. 1988 ).

3.Payment of Penalties.

The statutes which purport to enact a regulation requiring payment of any penalties imposed by a hearing officer prior to a formal hearing — viz., this section and KRS 350.020 , 350.028 , 350.465 and 350.610 — do not mention nor do they authorize prepayment of penalties as a condition precedent to a formal hearing. Franklin v. Natural Resources & Environmental Protection Cabinet, 799 S.W.2d 1, 1990 Ky. LEXIS 75 ( Ky. 1990 ).

4.Parallel Federal Regulations.

Where a federal act and its regulations provide for a procedure by which an accused strip miner is provided a formal hearing, with a full record, rights of examination, cross-examination, subpoenas, etc., and where from this full hearing there is an appeal to an administrative law judge and ultimately to the federal court system, by not providing a similar proceeding, the parallel Kentucky regulations are more stringent than the federal law and regulations, in violation of KRS 13A.120(1), thus making 405 KAR 7:090(4), which provides for a formal hearing only upon prepayment, null, void and unenforceable. Franklin v. Natural Resources & Environmental Protection Cabinet, 799 S.W.2d 1, 1990 Ky. LEXIS 75 ( Ky. 1990 ).

5.Illustrative Cases.

Since the ruling by the Kentucky Environmental and Public Protection Cabinet (now Energy and Environment Cabinet) in issuing a utility a permit to operate a coal steam generating plant, finding that environmental organizations did not establish that the plant’s sulfur dioxide emissions would impact vegetation in the area having a commercial or recreational significance, followed the plain language of KRS 224.10-100 (26), the trial court erred in remanding the order issuing the permit. Commonwealth v. Sierra Club, 2008 Ky. App. LEXIS 312 (Ky. Ct. App. Sept. 19, 2008).

Permits issues to farmers were no-discharge permits, and the energy and environment cabinet secretary’s ruling on the issue was supported by substantial evidence and otherwise proper; the trial court found that permits ran afoul of KRS 224.10-100 (5), (19), but the court could not agree with the trial court’s finding that the statutes at issue required permit conditions that related to pathogens, and as the cabinet decided not to exercise its special condition authority, the court found no reason to disturb this. Commonwealth v. Sharp, 2012 Ky. App. LEXIS 189 (Ky. Ct. App. May 25, 2012).

6.Valid Permits.

Kentucky Environmental and Public Protection Cabinet (now Energy and Environment Cabinet) properly issued a utility a permit to operate a coal steam generating plant, as the utility achieved a 98 percent reduction in sulfur dioxide emissions, and environmental organizations did not show that technology to achieve a 99 percent reduction was available. The Cabinet properly used present technology in determining that the utility met the pollutant level required by 401 KAR 51:001, § 25 as to best available control technology. Commonwealth v. Sierra Club, 2008 Ky. App. LEXIS 312 (Ky. Ct. App. Sept. 19, 2008).

7.Administrative Proceedings.

Public notice issued by the Kentucky Environmental and Public Protection Cabinet (now Energy and Environment Cabinet) concerning a hearing on a utility’s request for a permit to operate a coal steam generating plant complied with 401 KAR 52:100, § 5(10), as the areas that would be affected by the plant were able to participate. Commonwealth v. Sierra Club, 2008 Ky. App. LEXIS 312 (Ky. Ct. App. Sept. 19, 2008).

Trial court found that permits ran afoul of KRS 224.10-100 (5), (19), but the court could not agree with the conclusion that the statutes at issue required conditions relating to pathogens, and any authority to impose such controls was derived from the special conditional authority of the Kentucky Energy and Environment Cabinet Division of Water. Adams v. Sharp, 2012 Ky. App. Unpub. LEXIS 1058 (Ky. Ct. App. May 25, 2012), review denied, ordered not published, 2013 Ky. LEXIS 569 (Ky. Oct. 16, 2013).

Cited:

Bell Concrete Industries, Inc. v. Commonwealth, Natural Resources & Environmental Protection Cabinet, 764 S.W.2d 634, 1988 Ky. App. LEXIS 119 (Ky. Ct. App. 1988); Lisack v. Natural Resources & Environmental Protection Cabinet, 840 S.W.2d 835, 1992 Ky. App. LEXIS 223 (Ky. Ct. App. 1992).

Opinions of Attorney General.

The Department for Natural Resources and Environmental Protection (now Energy and Environment Cabinet) would have authority to periodically enter and inspect a public water supply system without the necessity of alleging or suspecting a violation of a statute or regulation. OAG 77-403 .

This section makes it clear that the Legislature has given the Department of Natural Resources and Environmental Protection (now Energy and Environment Cabinet) authority to deal with the transportation of hazardous waste. OAG 79-517 .

The Department for Natural Resources and Environmental Protection’s (now Energy and Environment Cabinet) authorization to enact regulations in subdivision (17) of this section requires that the environmental quality commission’s recommendation be obtained. OAG 80-24 .

The state has the authority to comply with the requirements of Title VI of the Water Quality Act of 1987, 33 USCS § 1251 et seq., and the Natural Resources (now Energy and Environment Cabinet) Cabinet may enter into a grant agreement with the Environmental Protection Agency which would bind the state to the terms and conditions of the capitalization grant. OAG 88-77 .

Research References and Practice Aids

Kentucky Law Journal.

Stephens, Commencing the Decade with Environmental Reform: The 1980 Kentucky General Assembly Implements the Resource Conservation and Recovery Act of 1976, 69 Ky. L.J. 227 (1980-81).

Kentucky Law Survey, Bratt and Brown, Environmental Law, 70 Ky. L.J. 455 (1981-82).

Northern Kentucky Law Review.

Natter, How Clean is Clean? Hazardous Waste/Hazardous Substance Cleanup Standards Under Kentucky Law, 18 N. Ky. L. Rev. 295 (1991).

Perkins, Petroleum Storage Regulation in Kentucky, 22 N. Ky. L. Rev. 59 (1995).

224.10-103. Powers and duties of Environmental and Public Protection Cabinet — Office of Energy Policy transferred to Commerce Cabinet. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 2005, ch. 123, § 5, effective June 20, 2005; 2007 (2nd Ex. Sess.), ch. 1, § 43, effective August 30, 2007) was repealed by Acts 2010 ch. 24, § 1936, effective July 15, 2010.

224.10-105. Additional powers of cabinet as to solid waste management.

In addition to its other powers, the cabinet shall have the following powers:

  1. In cooperation with waste management districts, area development districts, or counties, to determine what entities are required to submit a solid waste management plan;
  2. To review, approve, disapprove, develop upon failure to receive, and require amendment of solid waste management plans. A plan shall be approved if it meets requirements specified by KRS Chapters 109 and 224, and administrative regulations adopted by the cabinet, and if it is consistent with the statewide solid waste reduction and management plan;
  3. To issue, continue in effect, revoke, modify, suspend, deny, or condition permits for municipal solid waste management facilities as necessary to implement any provisions of KRS Chapter 224, administrative regulations adopted by the cabinet, the area solid waste management plan or the statewide solid waste reduction and management plan, or applicable zoning regulations adopted pursuant to KRS Chapter 100, or pending approval of the plans, to meet solid waste disposal capacity needs of the area and to assure disposal capacity for solid waste generated in Kentucky;
  4. To limit the amount, by weight or volume, of waste that may be accepted for disposal by municipal solid waste facilities in the Commonwealth, consistent with the requirements of KRS Chapter 224 and administrative regulations adopted by the cabinet, to implement provisions of the statewide solid waste reduction and management plan, or the area solid waste management plan, or as otherwise necessary to assure capacity for disposal of waste generated in the Commonwealth or to protect the environment and the health and welfare of the citizens of the Commonwealth. The cabinet may take into account such factors as:
    1. Operation of the facility in accordance with the most stringent standards adopted in administrative regulations pursuant to KRS Chapter 224;
    2. The nature of any groundwater or surface water problems associated with operation of the facility;
    3. The need for the facility to serve the solid waste management needs of the area in which the facility is located;
    4. The nature of any existing contracts for disposal held by the facility; and
    5. The compliance history of the facility;
  5. To take any actions consistent with KRS Chapter 224, administrative regulations adopted by the cabinet, the statewide solid waste reduction and management plan, and the area solid waste management plan as reasonably necessary to assure that there is sufficient capacity for disposal of waste generated in the Commonwealth and the solid waste management area, and to protect the environment and the health and welfare of the citizens of the Commonwealth; and
  6. To disapprove a grant or loan for a municipal solid waste management facility which is not consistent with the statewide waste reduction and management plan or the area solid waste management plan.

History. Enact. Acts 1991 (1st Ex. Sess.), ch. 12, § 14, effective February 26, 1991.

Compiler’s Notes.

This section was formerly compiled as KRS 224.0335 .

224.10-110. Enforcement of rules and regulations adopted by secretary — Policies — Plans — Programs.

The Energy and Environment Cabinet shall enforce the rules and regulations adopted by the secretary of the Energy and Environment Cabinet for the regulation and control of the matters set out below and shall formulate, promote, establish and execute policies, plans and programs relating to natural resources and environmental protection, including but not limited to the following matters:

  1. The proper disposal of waste;
  2. The purification of water for public and semipublic use;
  3. The proper construction and operation of public water distribution systems and water treatment systems in public water purification plants and swimming pools;
  4. The review, approval or disapproval of plans for construction, modification or extension of water purification and distribution systems and water treatment systems in swimming pools; and
  5. The certification of water and sewage plant operators.

History. Enact. Acts 1976, ch. 299, § 95; 1978, ch. 113, § 2, effective June 17, 1978; 1978, ch. 117, § 24, effective July 1, 1978; 2010, ch. 24, § 352, effective July 15, 2010.

Compiler’s Notes.

This section was formerly compiled as KRS 224.032 .

NOTES TO DECISIONS

Cited:

Louisville & Jefferson County Metropolitan Sewer Dist. v. Douglass Hills Sanitation Facility, 592 S.W.2d 142, 1979 Ky. LEXIS 317 ( Ky. 1979 ).

Opinions of Attorney General.

This section and 401 KAR 6:015 apply to facilities owned or controlled by the federal government, subject to any waiver under § 1447(b) of the Federal Safe Drinking Water Act. OAG 79-39 .

224.10-120. Conformance of legal advertisements to federal laws or regulations.

Notwithstanding the provisions of KRS 424.130 , the cabinet may publish advertisements in conformance with the requirements of an applicable federal law or federal regulation. However, if the federal law or regulation requires the cabinet to publish an advertisement more than sixty (60) days in advance of the occurrence of an act, opportunity or event specified in KRS 424.130 , the cabinet shall publish one (1) additional advertisement within the time period required by KRS 424.130.

History. Enact. Acts 1974, ch. 355, § 6.

Compiler’s Notes.

This section was formerly compiled as KRS 224.087 .

224.10-190. Transfer of assets and personnel from Natural Resources and Environmental Protection Cabinet.

All funds, credits, assets, appropriations, outstanding obligations, personnel, equipment and all resources or other tangible property and any business or other matter now undertaken or vested in the Natural Resources and Environmental Protection Cabinet are hereby transferred and vested in the cabinet.

History. Enact. Acts 1974, ch. 74, Art. III, § 7.

Compiler’s Notes.

This section was formerly compiled as KRS 224.016 .

224.10-192. Emission standards for carburetion systems — Functions transferred to cabinet.

There are hereby transferred to and vested in the secretary and cabinet all functions, powers and duties, funds, personnel, equipment and supplies relating to emission standards for carburetion systems under provisions of KRS 234.321, which said provisions of law have been conferred upon the Department of Health and upon the commissioner and other officers and offices of the Department of Health.

History. Enact. Acts 1974, ch. 74, Art. III, § 11.

Compiler’s Notes.

This section was formerly compiled as KRS 224.021 .

224.10-194. Septic tank servicing — Transfer of functions.

There are transferred to and vested in the commissioner and the Department for Public Health all functions, powers and duties, funds, personnel, equipment, and supplies relating to septic tank servicing under the provisions of KRS 211.972 to 211.982 , which said provisions of law have been conferred upon the Department of Environmental Protection and upon the secretary and other officers and offices of the Department of Environmental Protection.

History. Enact. Acts 1974, ch. 74, Art. III, § 12; 1986, ch. 331, § 37, effective July 15, 1986; 1998, ch. 426, § 507, effective July 15, 1998.

Compiler’s Notes.

This section was formerly compiled as KRS 224.022 .

Operational Procedures

224.10-210. Records open to public inspection — Confidential nature of certain data.

Any record or other information furnished to or obtained by the cabinet shall be open to reasonable public inspection except that any record or information, not relating to emission or effluent data, which constitutes a trade secret or confidential business information and is designated as such by the cabinet, upon a satisfactory showing by the owner or operator in accordance with the rules and regulations of the cabinet shall be confidential and for the use only of the cabinet and other departments, agencies, and officers of the Commonwealth in the performance of their duties. No record or information designated by the owner to be either a trade secret or confidential business information but not designated as such by the cabinet due to the failure of the owner to make a satisfactory showing of confidentiality shall be released to the public or to any other agency, department, or officer of the Commonwealth without providing the owner fifteen (15) days written notice. Nothing herein shall be construed to prevent the use of such records or information by any department, agency, or officer of the Commonwealth in compiling or publishing reports, analyses, or summaries relating to the general condition of the natural environment, nor shall anything herein prevent the disclosure of any record or other information to any agency or representative of the United States or to any subdivision of the Commonwealth for the purposes of administration or enforcement of any federal or local pollution control law. No such report, analysis, or summary shall, directly or indirectly, reveal information otherwise confidential under this section.

History. Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 20; 1978, ch. 257, § 6, effective June 17, 1978; 1992, ch. 302, § 1, effective July 14, 1992.

Compiler’s Notes.

This section was formerly compiled as KRS 224.035 .

Opinions of Attorney General.

The public agency’s denial of the request to inspect materials relative to the components and uses of a compound called TF-1, matters which have been designated as trade secrets under the public agency’s rules and regulations, was proper pursuant to subdivisions (1)(b), (c) and (j) of KRS 61.878 of the Open Records Act and under this section. OAG 86-1 .

Neither this section nor 33 USCS § 1318(b) remove the limitations to public inspection set forth in subsection (1) of KRS 61.878 . OAG 86-32 .

The enactment of regulations by the Natural Resources and Environmental Protection Cabinet (now Energy and Environment Cabinet) is a required part of the procedure pursuant to this section involving the designation of material as a trade secret; therefore, the Cabinet’s withholding of records from public inspection as trade secrets was improper where the Cabinet did not enact administrative regulations. OAG 86-41 .

Research References and Practice Aids

Northern Kentucky Law Review.

Elliot, Kentucky’s Environmental Self-Audit Privilege: State Protection Or Increased Federal Scrutiny?, 23 N. Ky. L. Rev. 1 (1995).

224.10-212. Hazardous waste records open to public inspection — Confidential nature of certain data.

  1. Any record or any other information furnished to or obtained by the cabinet relating to hazardous waste shall be open to reasonable public inspection, except that any record or information which constitutes a trade secret or confidential business information and is designated as such by the cabinet upon a satisfactory showing by the owner in accordance with the rules and regulations of the cabinet shall not be disclosed. Further, no record or information designated by the owner to be either a trade secret or confidential business information but not designated as such by the cabinet due to the failure of the owner to make a satisfactory showing of confidentiality shall be released to the public or to any other agency, department or officer of the Commonwealth without providing the owner fifteen (15) days written notice.
  2. Nothing herein shall be construed to prevent the use of such records or information by the cabinet in compiling or publishing reports, analyses or summaries relating to general conditions in the environment, nor shall anything herein prevent the use of any record or other information for the purposes of administration or enforcement of any federal, state or local pollution control law. However, no such report, analyses, summary or use shall directly or indirectly publicly reveal information otherwise confidential under this section.

History. Enact. Acts 1980, ch. 264, § 7, effective July 15, 1980; 1982, ch. 73, § 1, effective July 15, 1982.

Compiler’s Notes.

This section was formerly compiled as KRS 224.036 .

Research References and Practice Aids

Northern Kentucky Law Review.

Elliot, Kentucky’s Environmental Self-Audit Privilege: State Protection Or Increased Federal Scrutiny?, 23 N. Ky. L. Rev. 1 (1995).

224.10-220. Timetables for issuance of permits — Effects of failure to file timetables and inaction before established deadlines.

  1. The Energy and Environment Cabinet shall adopt administrative regulations establishing reasonable timetables for the issuance of all permits by the cabinet, except those permits for which a timetable is set out by statute. The timetables shall set specific time periods for actions to be taken in the consideration of permit applications.
  2. The timetables adopted pursuant to subsection (1) of this section shall be proposed for adoption and filed with the Legislative Research Commission no later than January 1, 1993. In the event that the timetables required by subsection (1) of this section are not proposed for adoption and filed with the Legislative Research Commission by the January 1, 1993 deadline, the Energy and Environment Cabinet shall cease the collection of permit fees for all permits for which timetables have not been established until the required timetables have been proposed for adoption.
  3. The cabinet shall waive the permit fee for any permit not acted upon, either favorably or unfavorably, in accordance with the established timetables. The approach of an impending deadline for action on a permit pursuant to the established timetables shall not be a reason for denial of a permit. However, nothing in this section shall require the cabinet to issue a permit which would violate this chapter or the administrative regulations adopted pursuant thereto.

History. Enact. Acts 1992, ch. 225, § 1, effective July 14, 1992; 2010, ch. 24, § 353, effective July 15, 2010.

Research References and Practice Aids

Kentucky Law Journal.

Cox, What May States Do About Out-of-State Waste in Light of Recent Supreme Court Decisions Applying the Dormant Commerce Clause? Kentucky As Case Study in the Waste Wars, 83 Ky. L.J. 551 (1994-95).

224.10-225. Facilitation of permits for coal-fired electric generation plants and industrial energy facilities.

  1. The secretary of the Energy and Environment Cabinet shall facilitate the permitting of coal-fired electric generation plants or industrial energy facilities in the Commonwealth by developing procedures for one (1) stop shopping for environmental permits.
  2. Upon request by an applicant for environmental permits for an industrial energy facility, the secretary, in consultation with the applicant, shall establish specific time periods for actions to be taken in the consideration of its permit applications. The time periods established shall not exceed those adopted by administrative regulations promulgated pursuant to KRS 224.10-220 .

History. Enact. Acts 2000, ch. 321, § 10, effective July 14, 2000; 2007, ch. 73, § 2, effective June 26, 2007; 2010, ch. 24, § 354, effective July 15, 2010.

224.10-230. Time and accounting system — Documentation of costs submitted to legislative committee — Promulgation of regulations.

  1. The cabinet shall implement a time and accounting system to reasonably and accurately document its actual costs.
  2. The cabinet shall submit documentation of its costs to the Interim Joint Appropriations and Revenue Committee prior to the cabinet’s submittal of its biennial budget request.
  3. The cabinet may promulgate regulations amending the fees set forth in KRS 224.20-050 , 224.46-012 to 224.46-018 , and 224.70-120 . The fees established in the promulgated regulations shall be based on the cabinet’s actual costs.

History. Enact. Acts 1990, ch. 471, § 8, effective July 13, 1990.

Compiler’s Notes.

This section was formerly compiled as KRS 224.117 .

224.10-250. Allocation of moneys collected as civil penalties.

The first one hundred fifty thousand dollars ($150,000) of civil penalties collected per fiscal year by the cabinet or the Attorney General on its behalf under the provisions of KRS 224.99-010 shall be paid to the State Treasury and credited to the Kentucky Environmental Education Council for the purposes set out in KRS 157.915 . All additional civil penalties collected by the cabinet, or the Attorney General on its behalf, under the provisions of KRS 224.99-010 shall be paid into the State Treasury and credited to the Kentucky Heritage Land Conservation Fund established by KRS 146.570 .

History. Enact. Acts 1966, ch. 21, § 7; 1972 (1st Ex. Sess.), ch. 3, § 45; 1994, ch. 328, § 5, effective July 15, 1994; 1998, ch. 67, § 4, effective July 15, 1998.

Compiler’s Notes.

This section was formerly compiled as KRS 224.120 .

224.10-270. Exemption or partial exemption — Application — Period of exemption — Renewal — Emergency provisions not limited.

  1. Any person subject to any rule or regulation governing the emission or discharge of contaminants into the ambient air or waters of the Commonwealth promulgated by the cabinet may apply for an exemption or partial exemption from such rule or regulation. The application shall be accompanied by such information and data as the cabinet may require. The cabinet may grant such an exemption or partial exemption if it finds that:
    1. The discharge occurring or proposed to occur does not or will not have a measurable impact on the quality of the ambient air or waters of the Commonwealth; and
    2. Compliance with the rules or regulations from which exemption is sought would produce serious hardship without equal or greater benefit to the public.
  2. Any person applying to the cabinet for an exemption shall publish notice of his application in accordance with the rules and regulations of the cabinet in at least one (1) newspaper of general circulation in the county in which the emission or discharge sought to be exempted is located. The cabinet shall promptly investigate the application, consider the relative interests of the applicant, other owners of property likely to be affected by the emission or discharge, and of the general public. If the cabinet, in its discretion, concludes that a hearing should be held, or if any person files an objection to the granting of such exemption within thirty (30) days from the date of the first publication of notice of the application, then a hearing shall be held in the manner prescribed by the rules and regulations of the cabinet and the burden of proof shall be on the applicant for the exemption.
  3. No exemption or partial exemption pursuant to this section shall be granted for a period to exceed one (1) year, but any such exemption or partial exemption may be renewed for like periods if no complaint is made to the cabinet on account thereof or if, such complaint having been made and duly considered at a hearing held by the cabinet in the manner provided in subsection (2) of this section, the cabinet finds that renewal is justified. No renewal shall be granted except on application therefor. Any such application shall be made at least thirty (30) days prior to the expiration of the exemption or partial exemption. Immediately prior to application for renewal the applicant shall give public notice of such application in accordance with rules and regulations of the cabinet. Any renewal pursuant to this subsection shall be on the same grounds and subject to the same limitations and requirements as provided in subsection (1) of this section.
  4. An exemption, partial exemption, or renewal thereof shall not be a right of the applicant or holder thereof but shall be in the discretion of the cabinet.
  5. Nothing in this section and no exemption, partial exemption, or renewal granted pursuant hereto shall be construed to prevent or limit the application of the emergency provisions and procedures of KRS 224.10-410 to any person or his property.
  6. In granting or denying an exemption, partial exemption, or renewal thereof, the secretary shall issue a written statement of the facts and reasons leading to the decision and make such statement a part of the record of the action on the application.

History. Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 22; 1974, ch. 74, Art. III, §§ 1, 13(2).

Compiler’s Notes.

This section was formerly compiled as KRS 224.073 .

224.10-272. Volkswagen settlement funds — Energy and Environment Cabinet to administer — Source and disposition of moneys.

  1. There is hereby established  in the State Treasury a trust and agency account to be known as the  Volkswagen settlement fund. The fund shall consist of moneys designated  to the Commonwealth from that settlement.
  2. The fund shall be administered  by the Energy and Environment Cabinet.
  3. Notwithstanding KRS 45.229 , fund amounts not expended at the close of the fiscal  year shall not lapse but shall be carried forward into the next fiscal  year.
  4. Any interest earned from moneys deposited  in the fund shall become a part of the fund and shall not lapse.

HISTORY: 2018 ch. 171, § 1, effective April 14, 2018; 2018 ch. 207, § 1, effective April 27, 2018.

Legislative Research Commission Notes.

(4/27/2018). This statute was created by 2018 Ky. Acts ch. 171, sec. 1 and ch. 207, sec. 1, which are identical and have been codified together.

224.10-275. Conditions of exemption — Progress reports.

  1. In granting an exemption the cabinet may impose such conditions as this chapter may require. If the hardship complained of consists solely of the need for a reasonable delay in which to correct a violation of this chapter or of the cabinet regulations, the cabinet shall condition the grant of such exemption upon the posting of sufficient performance bond or other security to assure the correction of such violation within the time prescribed.
  2. Any exemption granted pursuant to the provisions of this section shall be granted for such period of time, not exceeding one (1) year, as shall be specified by the cabinet at the time of the grant of such exemption, and upon the condition that the person who receives such exemption shall make such periodic progress reports as the cabinet shall specify. Such exemption may be extended from year to year by the cabinet, but only if satisfactory progress has been shown.

History. Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 23; 1984, ch. 111, § 185, effective July 13, 1984.

Compiler’s Notes.

This section was formerly compiled as KRS 224.075 .

224.10-280. Cumulative environmental assessment and fee required before construction of facility for generating electricity — Conditions imposed by cabinet — Administrative regulations.

  1. Except for a person that commenced construction of a facility prior to April 15, 2002, or that has received a certificate of public convenience and necessity from the Public Service Commission prior to April 15, 2002, no person shall commence to construct a facility to be used for the generation of electricity unless the person:
    1. Submits a cumulative environmental assessment to the cabinet with the permit application; and
    2. Remits a fee set pursuant to KRS 224.10-100 (20) by the cabinet to defray the cost of processing the cumulative environmental assessment.
  2. The person may submit and the cabinet may accept documentation of compliance with the National Environmental Policy Act (NEPA) as satisfying the requirements to file a cumulative environmental assessment under subsection (1) of this section.
  3. The cumulative environmental assessment shall contain a description, with appropriate analytical support, of:
    1. For air pollutants:
      1. Types and quantities of air pollutants that will be emitted from the facility; and
      2. A description of the methods to be used to control those emissions;
    2. For water pollutants:
      1. Types and quantities of water pollutants that will be discharged from the facility into the waters of the Commonwealth; and
      2. A description of the methods to be used to control those discharges;
    3. For wastes:
      1. Types and quantities of wastes that will be generated by the facility; and
      2. A description of the methods to be used to manage and dispose of such wastes; and
    4. For water withdrawal:
      1. Identification of the source and volume of anticipated water withdrawal needed to support facility construction and operations; and
      2. A description of the methods to be used for managing water usage and withdrawal.
  4. The cabinet may impose such conditions regarding the timing, volume, duration, or type of pollutants on a permit, registration, general permit, or permit-by-rule for a facility subject to this section as are necessary to comply with applicable standards.
  5. The cabinet may promulgate administrative regulations to implement the provisions of this section.

History. Enact. Acts 2002, ch. 365, § 10, effective April 24, 2002.

Hearing Procedures

224.10-410. Order for discontinuance, abatement, or alleviation of condition or activity without hearing — Subsequent hearing.

Notwithstanding any inconsistent provisions of law, whenever the secretary finds, after investigation, that any person or combination of persons is causing, engaging in or maintaining a condition or activity which, in his judgment, presents a danger to the health or welfare of the people of the state or results in or is likely to result in damage to natural resources, and relates to the prevention and abatement powers of the secretary and it therefore appears to be prejudicial to the interests of the people of the state to delay action until an opportunity for a hearing can be provided, the secretary may, without prior hearing, order such person or combination of persons by notice, in writing wherever practicable or in such other form as in the secretary’s judgment will reasonably notify such person or combination of persons whose practices are intended to be proscribed, to discontinue, abate or alleviate such condition or activity, and thereupon such person or combination of persons shall immediately discontinue, abate or alleviate such condition or activity. As soon as possible thereafter, not to exceed ten (10) days, the secretary shall provide the person or combination of persons an opportunity to be heard and to present proof that such condition or activity does not violate the provisions of this section. The secretary shall adopt any other appropriate rules and regulations prescribing the procedure to be followed in the issuance of such orders. The secretary shall immediately notify the Governor of any order issued pursuant to this section.

History. Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 21; 1974, ch. 74, Art. III, §§ 1, 13(2); 1974, ch. 355, § 5.

Compiler’s Notes.

This section was formerly compiled as KRS 224.071 .

NOTES TO DECISIONS

Cited:

Louisville & Jefferson County Metropolitan Sewer Dist. v. Douglass Hills Sanitation Facility, 592 S.W.2d 142, 1979 Ky. LEXIS 317 ( Ky. 1979 ); Commonwealth, Natural Resources & Environmental Protection Cabinet v. Stearns Coal & Lumber Co., 678 S.W.2d 378, 1984 Ky. LEXIS 204 ( Ky. 1984 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Glover, Digesting the Federal Strip Mine Act, Vol. 42, No. 1, Jan. 1978 Ky. Bench & B. 25.

Kentucky Law Journal.

Stephens, Commencing the Decade With Environmental Reform: The 1980 Kentucky General Assembly Implements the Resource Conservation and Recovery Act of 1976, 69 Ky. L.J. 227 (1980-81).

224.10-420. Notice of complaint — Answer to charges — Petition by aggrieved party — Hearing.

  1. Whenever the cabinet has reason to believe that a violation of any of the provisions of this chapter or any administrative regulation promulgated pursuant thereto has occurred, it shall issue and serve upon the person complained against a written notice of the provision of this chapter or the administrative regulation alleged to have been violated and the facts alleged to constitute the violation thereof and shall require the person so complained against to answer the charges set out in the notice at a hearing before the cabinet at a time not less than twenty-one (21) days after the date of notice, except as provided in KRS 224.10-410 or unless the person complained against waives in writing the twenty-one (21) day period.
  2. Any person not previously heard in connection with the issuance of any order or the making of any final determination arising under this chapter by which he considers himself aggrieved may file with the cabinet a petition alleging that the order or final determination is contrary to law or fact and is injurious to him, alleging the grounds and reasons therefor, and demand a hearing. An order or final determination includes, but is not limited to, the issuance, denial, modification, or revocation of a permit, but does not include the issuance of a letter identifying deficiencies in an application for a permit, a registration or a certification, or other nonfinal determinations. This subsection does not abrogate the right to a hearing on a draft permit afforded by KRS 224.40-310 . Unless the cabinet considers that the petition is frivolous, it shall serve written notice of the petition on each person named therein and shall schedule a hearing before the cabinet not less than twenty-one (21) days after the date of such notice, except as provided in KRS 224.10-410 or unless the person complained against waives in writing the twenty-one (21) day period. The right to demand a hearing pursuant to this section shall be limited to a period of thirty (30) days after the petitioner has had actual notice of the order or final determination complained of, or could reasonably have had such notice.

History. Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 24; 1978, ch. 207, § 1, effective June 17, 1978; 1992, ch. 215, § 1, effective July 14, 1992.

Compiler’s Notes.

This section was formerly compiled as KRS 224.081 .

NOTES TO DECISIONS

1.In General.

Burford counseled abstention with respect to the private plaintiffs’ “prevention of significant deterioration” (PSD) claims against defendant because federal review would have disrupted Kentucky’s efforts to establish a coherent policy, including administrative and judicial review pursuant to KRS 224.10-420 (2) and 224.10-470 , with respect to PSD permitting of emitting facilities. Such review also would have been disruptive because it would have required the District Court to revisit certain earlier decisions made by the Kentucky Division of Air Quality. Ellis v. Gallatin Steel Co., 390 F.3d 461, 2004 U.S. App. LEXIS 22252 (6th Cir. Ky. 2004 ).

Where department suspended reservation of prevention of significant deterioration increment until the requirements of KRS 278.020(3) were met or until it could be established that it did not apply, and less than 30 days later the suspension was withdrawn and its issuance voided upon a determination that the construction of a utility plant did not require a certificate of convenience and necessity prior to application for state and federal environmental authorizations, the department in reversing its prior decision acted within its authority as it had properly retained jurisdiction over the subject matter. Western Kraft Paper Group v. Department for Natural Resources Environmental Protection, 632 S.W.2d 454, 1981 Ky. App. LEXIS 323 (Ky. Ct. App. 1981).

In citizens’ suit under 33 U.S.C.S. § 1365 of the Clean Water Act (CWA), plaintiffs were denied summary judgment because the Environmental Protection Agency’s approval of Kentucky’s Tier II Antidegradation Rules was not arbitrary and capricious under 5 U.S.C.S. § 706, since the rules met the requirements of 40 CFR § 131.12(a)(2), any potential discharge was de minimis, and the rules contained adequate implementation procedures under 401 KAR 5:030, § 1(3)(b)(5) and adequate review provisions under KRS 224.10-420 (2). Ky. Waterways Alliance v. Johnson, 426 F. Supp. 2d 612, 2006 U.S. Dist. LEXIS 15689 (W.D. Ky. 2006 ), aff'd in part and rev'd in part, 540 F.3d 466, 2008 FED App. 0333P, 2008 U.S. App. LEXIS 18802 (6th Cir. Ky. 2008 ).

2.Reversal of Decision.

The department is specifically authorized to reverse its own decisions by subsection (2) of this section. Western Kraft Paper Group v. Department for Natural Resources Environmental Protection, 632 S.W.2d 454, 1981 Ky. App. LEXIS 323 (Ky. Ct. App. 1981).

Cited:

Department for Natural Resources & Environmental Protection v. Blackhawk Mining Co., 612 S.W.2d 745, 1980 Ky. App. LEXIS 422 (Ky. Ct. App. 1980); Smith v. Natural Resources & Environmental Protection Cabinet, 712 S.W.2d 951, 1986 Ky. App. LEXIS 1113 (Ky. Ct. App. 1986).

Research References and Practice Aids

Kentucky Bench & Bar.

Glover, Digesting the Federal Strip Mine Act, Vol. 42, No. 1, Jan. 1978 Ky. Bench & B. 25.

Early, Not All Biofuels Are Green, Vol. 74, No. 2, March 2010, Ky. Bench & Bar 8.

Kentucky Law Journal.

Notes, Energy v. Environment: Who Wins in the Race for Coal in Kentucky, 64 Ky. L.J. 641 (1975-76).

Stephens, Commencing the Decade With Environmental Reform: The 1980 Kentucky General Assembly Implements the Resource Conservation and Recovery Act of 1976, 69 Ky. L.J. 227 (1980-81).

Kentucky Law Survey, Bratt and Brown, Environmental Law, 70 Ky. L.J. 455 (1981-82).

224.10-430. Court order upon failure to obey cabinet subpoena.

In case of refusal to obey a subpoena issued to any person, any Circuit Court of competent jurisdiction, upon application by any party, may issue to that person an order requiring him to appear before the cabinet, there to produce documentary evidence if so ordered or to give evidence touching the matter under investigation or in question; and any failure to obey the order of the court may be punished by the court as a contempt of court.

History. Enact. Acts 1974, ch. 355, § 11; 1982, ch. 192, § 1, effective July 15, 1982.

Compiler’s Notes.

This section was formerly compiled as KRS 224.082 .

224.10-440. Hearings — Reports, recommended orders, exceptions, decisions — Rights of parties — Records — Hearings to be public — Administrative regulations.

  1. All hearings under this chapter shall be held before a qualified hearing officer, who may be a full-time employee of the cabinet, serve by contract, or be paid on a per diem basis in the discretion of the cabinet. After the conclusion of the hearing, the hearing officer shall make to the secretary a report and recommended order which shall contain a finding of fact and a conclusion of law. The hearing officer shall serve a copy of his report and recommended order upon all parties of record to the proceeding, and they shall be granted the right to file within fourteen (14) days of receipt exceptions thereto. The secretary shall consider the report, exceptions, and recommended order and decide the case within ninety (90) days. The secretary, for good cause, may take no more than an additional forty-five (45) days provided the secretary gives the parties written notice stating the good cause within the original ninety (90) day period. The secretary’s decision shall be served by mail upon all parties and shall be a final order of the cabinet.
  2. Any party to a hearing under this subsection may be represented by counsel, may make oral or written argument, offer testimony, cross-examine witnesses, or take any combination of these actions. The secretary may promulgate administrative regulations to require that direct testimony be filed in writing prior to the hearing, either for all or some categories of cases. The record of the hearing shall be open to public inspection, and copies thereof shall be made available to any person upon payment of the actual cost of reproducing the original except as provided in KRS 224.10-210 .
  3. Unless all parties to the case agree in writing otherwise, the hearing officer shall conduct the hearing, complete the report and recommended order, and transmit the report and recommended order to the secretary no later than one hundred eighty (180) days after service of the written notice described in KRS 224.10-420 (1) upon all named parties or service of the petition and demand for hearing pursuant to KRS 224.10-420 (2) upon all named parties, whichever is applicable. Upon written request of the hearing officer or any party to the hearing, the secretary or secretary’s designee, for good cause shown, may extend this deadline for a period not to exceed ninety (90) days. The secretary shall grant no more than two (2) ninety (90) day extensions under this subsection, unless the secretary and all parties to the case agree to the contrary in writing.
  4. The secretary may promulgate administrative regulations to establish procedures and deadlines for submitting a written request for an extension pursuant to subsection (3) of this section. The secretary shall require that any written request for extension include a proposed date certain by which the hearing or report and recommended order, or both, will be completed.
  5. Upon the failure of the hearing officer to make a report and recommended order to the secretary within the deadline set forth in subsection (3) of this section, including any extensions granted by the secretary pursuant to subsections (3) and (4) of this section, the secretary shall remove the case from the hearing officer. The secretary shall then:
    1. Decide the case within ninety (90) days after allowing the parties to supplement the record, if necessary; or
    2. Transfer the case to another qualified hearing officer for completion of the hearing or report and recommended order, or both, by a new deadline set by the secretary. The secretary shall make no more than one (1) transfer pursuant to this subsection.
  6. All hearings conducted pursuant to this chapter shall be open to the public except as provided in KRS 224.10-210 .

History. Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 25; 1974, ch. 74, Art. III, §§ 1, 13(2); 1978, ch. 207, § 2, effective June 17, 1978; 1990, ch. 295, § 1, effective July 13, 1990; 2006, ch. 128, § 1, effective April 4, 2006.

Compiler’s Notes.

This section was formerly compiled as KRS 224.083 .

NOTES TO DECISIONS

1.Delay in Filing Report.

The hearing officer’s delay in filing his report until more than six (6) months after the hearing concluded was harmless error, where the defendant surface mining permittee did not request or demand the hearing officer to file his report, and the parties’ rights were not impaired by the delay. American Druggists Ins. Co. v. Commonwealth Dep't for Natural Resources & Environmental Protection, 670 S.W.2d 485, 1983 Ky. App. LEXIS 374 (Ky. Ct. App. 1983).

2.Parties to be Served.

Under subsection (1) of this section, the parties must be served, not the attorney for the parties. Natural Resources & Environmental Protection Cabinet v. Pinnacle Coal Corp., 729 S.W.2d 438, 1987 Ky. LEXIS 199 ( Ky. 1987 ).

3.Failure to File Exceptions.

Defendant, cited for violations of the surface mining laws, waived his right to complain about notice of formal hearings and the cabinet’s order where, although defendant received the hearing officer’s report, defendant still failed to file exceptions thereto in accordance with this section. Natural Resources & Environmental Protection Cabinet v. Cook, 812 S.W.2d 507, 1991 Ky. App. LEXIS 76 (Ky. Ct. App. 1991).

Cited:

Department for Natural Resources & Environmental Protection v. Blackhawk Mining Co., 612 S.W.2d 745, 1980 Ky. App. LEXIS 422 (Ky. Ct. App. 1980).

Research References and Practice Aids

Kentucky Law Journal.

Notes, Energy v. Environment: Who Wins in the Race for Coal in Kentucky, 64 Ky. L.J. 641 (1975-76).

Bratt, Surface Mining in Kentucky, 71 Ky. L.J. 7 (1982-83).

224.10-470. Appeals from final orders of the cabinet.

  1. Appeals may be taken from all final orders of the Energy and Environment Cabinet. Except as provided in subsection (3) of this section, the appeal shall be taken to the Franklin Circuit Court within thirty (30) days from entry of the final order. The party or parties affected by the final order shall file in the Circuit Court a petition which states fully the grounds upon which a review is sought and assign all errors relied on. The cabinet shall be named respondent, and service shall be had on the secretary. Summons shall issue upon the petition directing the cabinet to send its entire record, properly bound, to the clerk of the Circuit Court after certifying that such record is its entire original record or a true copy thereof, which shall be filed by the clerk of the Circuit Court and such record shall then become official and be considered by the Circuit Court on the review. After the case has been properly docketed in the Circuit Court, any party directly affected by the issues on appeal, may, upon notice to the parties and upon proper showing and in the discretion of the court be permitted to intervene. Upon hearing of the appeal the findings of the cabinet shall be prima facie evidence of the facts found therein. The court shall review the entire record and the findings and final order of the cabinet.
  2. Appeals to the Court of Appeals from orders of the Circuit Court, shall be taken in the manner provided in the Kentucky Rules of Civil Procedure.
  3. Final orders of the cabinet regarding environmental permits for an industrial energy facility as defined in KRS 224.1-010 shall be subject to expedited review by the Circuit Court located in the county where the industrial energy facility is proposed to be located.

History. Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 26; 1974, ch. 74, Art. III, §§ 1, 13(2); 1984, ch. 111, § 110, effective July 13, 1984; 1992, ch. 215, § 2, effective July 14, 1992; 2007, ch. 73, § 3, effective June 26, 2007; 2010, ch. 24, § 355, effective July 15, 2010.

Compiler’s Notes.

This section was formerly compiled as KRS 224.085 .

This section is set out above to reflect a correction to the section reference appearing in subsection (3) from 224.01-010 to 224.1-010 due to renumbering by the state reviser effective in 2013.

NOTES TO DECISIONS

1.In General.

Burford counseled abstention with respect to the private plaintiffs’ “prevention of significant deterioration” (PSD) claims against defendant because federal review would have disrupted Kentucky’s efforts to establish a coherent policy, including administrative and judicial review pursuant to KRS 224.10-420 (2) and 224.10-470 , with respect to PSD permitting of emitting facilities. Such review also would have been disruptive because it would have required the District Court to revisit certain earlier decisions made by the Kentucky Division of Air Quality. Ellis v. Gallatin Steel Co., 390 F.3d 461, 2004 U.S. App. LEXIS 22252 (6th Cir. Ky. 2004 ).

2.Jurisdiction.

The Pike Circuit Court lacked jurisdiction to entertain any action, including an injunction, involving a pending administrative proceeding before the Department for Natural Resources and Environmental Protection (now Natural Resources and Environmental Protection Cabinet), since under this section the only Circuit Court entitled to review an order of that agency is the Franklin Circuit Court; thus, a temporary injunction preventing the department from hearing an action in Frankfort was dissolved under CR 65.07. Department for Natural Resources & Environmental Protection v. Blackhawk Mining Co., 612 S.W.2d 745, 1980 Ky. App. LEXIS 422 (Ky. Ct. App. 1980).

Violations of KRS Chapters 223 and 224 are to be appealed to the Franklin Circuit Court, while violations of KRS Chapter 151 are to be appealed to the Circuit Court where the structure or activity which is the subject of the order is located. Shewmaker v. Commonwealth, 30 S.W.3d 807, 2000 Ky. App. LEXIS 104 (Ky. Ct. App. 2000).

3.Venue.

In an appeal from a judgment dismissing a petition for review of a final order of the Natural Resources and Environmental Protection Cabinet for lack of venue, where petitioner sought partial release of a performance bond covering an interim surface mining permit, KRS 350.032 was held to deal more specifically with surface mining than this section and, since it was more recent than this section, was held to control venue in the appeal. Black Energy Mining, Inc. v. Natural Resources & Environmental Protection Cabinet, 767 S.W.2d 334, 1989 Ky. App. LEXIS 2 (Ky. Ct. App. 1989).

Trimble Circuit Court had properly transferred an action challenging the Kentucky Energy and Environment Cabinet's issuance of a wastewater discharge permit to the Franklin Circuit Court where the statute identifying the place for appeal, Ky. Rev. Stat. Ann. § 224.10-470 (1), concerned venue, not subject matter jurisdiction, and under Ky. Rev. Stat. Ann. § 452.105 , a transfer was the proper remedy. Louisville Gas & Elec. Co. v. Ky. Waterways Alliance, 2015 Ky. App. LEXIS 78 (Ky. Ct. App. May 29, 2015), rev'd, 517 S.W.3d 479, 2017 Ky. LEXIS 201 ( Ky. 2017 ).

4.Time Limit.

Operators of nine (9) oil leases failed to avail themselves of their right to appeal within thirty (30) days of the Circuit Court’s decision to award a summary judgment to the Natural Resources and Environmental Protection Cabinet (NREPC) ordering the operators to rectify 58 violations of the environmental protection provisions of KRS Chapter 224, and therefore the operators were estopped from collaterally raising the issue of the validity of the NRECP’s resolutions in the Court of Appeals. Ward v. Natural Resources & Envtl. Protection Cabinet, 814 S.W.2d 589, 1991 Ky. App. LEXIS 94 (Ky. Ct. App. 1991).

Research References and Practice Aids

Kentucky Bench & Bar.

Early, Not All Biofuels Are Green, Vol. 74, No. 2, March 2010, Ky. Bench & Bar 8.

Kentucky Law Journal.

Notes, Energy v. Environment: Who Wins in the Race for Coal in Kentucky, 64 Ky. L.J. 641 (1975-76).

Northern Kentucky Law Review.

A Survey of Kentucky Environmental Law, 29 N. Ky. L. Rev. 1 (2002).

Programs

224.10-610. Acceptance and disposal of surplus agricultural chemicals and containers — Assistance to household waste educational and collection programs.

  1. The cabinet shall implement a program to provide technical assistance to counties, cities, and urban-county governments that seek to develop programs to accept and dispose of nonindustrial surplus agricultural chemicals and containers. The technical assistance shall include, but not be limited to, availability of on-site analysis of chemicals and containers, availability of regulated transporters and recycling or disposal facilities, and methods of increasing public participation.
  2. The cabinet shall implement a program to provide technical assistance to local governments wishing to establish household hazardous waste educational or collection programs. In addition to providing technical assistance, the cabinet may coordinate local governments’ collection, transportation, and disposal systems for household hazardous waste.

History. Enact. Acts 1990, ch. 307, § 4, effective July 13, 1990; 1991 (1st Ex. Sess.), ch. 12, § 52, effective February 26, 1991.

Compiler’s Notes.

This section was formerly compiled as KRS 224.0332 .

Research References and Practice Aids

Kentucky Law Journal.

Cox, What May States Do About Out-of-State Waste in Light of Recent Supreme Court Decisions Applying the Dormant Commerce Clause? Kentucky As Case Study in the Waste Wars, 83 Ky. L.J. 551 (1994-95).

224.10-620. Public education program on reducing and managing waste.

The Kentucky Environmental Education Council, the Energy and Environment Cabinet, and the Department of Education shall establish a program to educate the citizens of the Commonwealth of the importance of reducing and managing waste effectively, the need for individual action to reduce the amount and toxicity of solid waste being disposed, the need for alternative disposal methods to landfilling for toxic materials commonly used in or around households such as cleaners, solvents, pesticides, and automotive and paint products, and the necessity of implementing environmentally protective management and disposal mechanisms for the solid waste that is generated. In helping develop the educational programs, the Department of Education shall identify and adopt mechanisms to inform students throughout the Commonwealth of the importance of reducing and managing solid waste effectively.

History. Enact. Acts 1991 (1st Ex. Sess.), ch. 12, § 15, effective February 26, 1991; 1998, ch. 67, § 5, effective July 15, 1998; 2010, ch. 24, § 356, effective July 15, 2010.

Compiler’s Notes.

This section was formerly compiled as KRS 224.832 .

224.10-630. Technical assistance to state agencies on composting — Identification of state property for composting.

The cabinet shall provide technical assistance to state agencies directed to undertake composting activities under the provisions set out in KRS 56.005 . By January 21, 1992, the cabinet shall have identified state property in every county where yard waste may be taken by state agencies or other entities for composting purposes as space permits.

History. Enact. Acts 1991 (1st Ex. Sess.), ch. 12, § 59, effective February 26, 1991.

Compiler’s Notes.

This section was formerly compiled as KRS 224.038 .

224.10-650. Source separation and collection program for waste materials — Use of funds received — Resource conservation and recovery fund.

  1. The secretary of the Energy and Environment Cabinet shall assume the primary responsibility in state government for implementing a source separation and collection program for waste materials generated as a result of state agency operations, including, at a minimum, aluminum, high grade office paper, and corrugated paper.
  2. The cabinet shall establish procedures for collection and storage of recovered material and contractual or other arrangements for transportation and purchase of recovered materials. Every state agency of the executive, legislative, and judicial branches of state government and all state-supported institutions of higher education, in cooperation with the cabinet, shall develop a plan to conduct source separation and collection activities for recovered materials.
  3. A state agency or institution may elect to operate its own source separation program upon review and approval by the cabinet.
  4. The secretary of the Energy and Environment Cabinet shall take or cause to be taken such actions as may be necessary to:
    1. Identify the geographical location of existing or potential markets for recovered materials and energy generated;
    2. Identify the economic and technical barriers to the use of recovered materials and energy generated;
    3. Identify sound technologies, techniques, and processes for resource recovery and energy generated applicable to both urban and rural areas of Kentucky;
    4. Encourage the development of new uses for recovered materials; and
    5. Encourage and promote the development of new markets for recovered materials.
  5. Funds received by the Energy and Environment Cabinet from the source separation and collection program as described in this section shall be utilized by the cabinet to defray the cost of conducting the activities outlined in this section. Funds received by any other state agency or institution from an approved source separation collection program may be used to offset costs of the program. Any moneys generated by the cabinet or other state agencies or institutions in excess of the amounts needed to conduct these activities shall be placed in the resource conservation and recovery fund and be used for other litter abatement activities.
  6. There is created within the State Treasury a trust and agency fund, which shall not lapse, to be known as the resource conservation and recovery fund. Any appropriations, gifts, grants or program revenues received by the cabinet relating to resource recovery and litter abatement shall be deposited in the fund. Moneys in the fund shall be used for resource recovery and litter abatement activities.

History. Enact. Acts 1978, ch. 112, § 6, effective June 17, 1978; 1978, ch. 186, § 22, effective March 29, 1978; 1980, ch. 284, § 2, effective July 15, 1980; 1982, ch. 22, § 1, effective July 15, 1982; 1991 (1st Ex. Sess.), ch. 12, § 61, effective February 26, 1991; 2010, ch. 24, § 357, effective July 15, 2010.

Compiler’s Notes.

This section was originally compiled as KRS 224.217 and was renumbered as KRS 224.902 prior to being renumbered as this section.

Research References and Practice Aids

Kentucky Law Journal.

Cox, What May States Do About Out-of-State Waste in Light of Recent Supreme Court Decisions Applying the Dormant Commerce Clause? Kentucky As Case Study in the Waste Wars, 83 Ky. L.J. 551 (1994-95).

224.10-660. Kentucky Recycling and Marketing Assistance Program — Advisory committee — Report. [Repealed]

History. Enact. Acts 1998, ch. 61, § 1, effective July 15, 1998; 2010, ch. 24, § 358, effective July 15, 2010; 2010, ch. 135, § 3, effective July 15, 2010; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1998, ch. 61, § 1, effective July 15, 1998; 2010, ch. 24, § 358, effective July 15, 2010; 2010, ch. 135, § 3, effective July 15, 2010) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.10-670. Administrative regulations — Standards and certification program for analysis of wastewater pollution — Data submitted by uncertified laboratory invalid.

  1. The cabinet may promulgate administrative regulations pursuant to KRS Chapter 13A establishing:
    1. Standards for the operation of laboratories relating to analyses and laboratory tests for wastewater pollution, on behalf of activities subject to 33 U.S.C. sec. 1342 , fees for certification and competency evaluations of those laboratories, and issuance of certificates of competency to persons and laboratories meeting the standards established by the agency; and
    2. A certification program for laboratories that submit environmental data as it relates to analyses and laboratory tests for activities subject to 33 U.S.C. sec. 1342 . In developing the certification program, the cabinet shall consider, among other things, nationally recognized certification programs and those tailored for individual states.
  2. After one (1) year from the effective date of the administrative regulations described in subsection (1)(a) and (b) of this section, all environmental samples collected pursuant to an approved permit under 33 U.S.C. sec. 1342 shall be submitted to a laboratory that is certified by the cabinet. After that date, any data submitted on behalf of activities subject to 33 U.S.C. sec. 1342 to any agencies of the cabinet, that are generated by an uncertified laboratory, shall be deemed invalid.

History. Enact. Acts 2011, ch. 102, § 2, effective June 8, 2011.

SUBCHAPTER 16. State-Federal Relations

224.16-040. Factors to be considered when issuing federal permits, requiring long-term control plans, or enforcing Federal Water Pollution Control Act.

When issuing permits under KRS 224.16-050 for discharges consisting of combined sewer overflows, requiring and approving long-term control plans for wet weather discharges from combined or separate sanitary sewer systems, or enforcing provisions of the federal Water Pollution Control Act, 33 U.S.C. secs. 1251 et seq., the cabinet shall consider the following, to the extent allowable under this chapter and the federal Water Pollution Control Act:

  1. Limitations on a community’s financial capabilities and ability to raise or secure necessary funding;
  2. Affordability of control options;
  3. An evaluation of the effectiveness and affordability of control technologies;
  4. Promotion of green infrastructure;
  5. Reducing economic impacts on regulated entities, other state and local governmental entities, and residents of the Commonwealth;
  6. Allowing for reasonable accommodations for regulated entities and other state and local governmental entities when inflexible standards and fines would impose a disproportionate financial hardship in light of the environmental benefits to be gained;
  7. Giving preference, where proposed by a permittee, to control options that meet presumption approach performance criteria and demonstrate significant pollution reduction rather than mandating specific designs;
  8. Allowing adequate time and flexibility for implementation schedules when justified by a clear environmental benefit, a community’s ability to raise or secure adequate funds, an analysis concluding that the costs of a shorter implementation schedule outweigh the benefits of faster implementation, or other factors; and
  9. Factors set forth in the United States Environmental Protection Agency’s “Combined Sewer Overflow Control Policy” that may ease the cost burdens of implementing long-term control plans, including but not limited to small system considerations, the attainability of water quality standards, and the development of wet weather standards.

History. Enact. Acts 2010, ch. 143, § 1, effective July 15, 2010.

224.16-050. Issuance of federal permits by cabinet — Activities not requiring permit — Wetlands delineation — Application fee.

  1. The cabinet may issue federal permits pursuant to 33 U.S.C. sec. 1342(b) of the Federal Water Pollution Control Act (33 U.S.C. secs. 1251 et seq.) subject to the conditions imposed in 33 U.S.C. secs. 1342(b) and 1342(d). The cabinet may issue federal permits pursuant to 33 U.S.C. sec. 1344(e) and (g) of the Federal Water Pollution Control Act, 33 U.S.C. secs. 1251 et seq., subject to the conditions imposed in 33 U.S.C. sec. 1344(h) , (i), and (j). Any exemptions granted in the issuance of NPDES permits shall be pursuant to 33 U.S.C. secs. 1311 , 1312, and 1326(a). The cabinet shall report to the standing committees of jurisdiction over environmental protection, and appropriations and revenue, no later than January 1, 2006, on the costs, personnel requirements, and any statutory or regulatory changes needed to support state assumption of the permitting program under 33 U.S.C. 1344(e) and (g), and the anticipated benefits in permit streamlining and environmental quality from state administration of the program.
  2. The cabinet may certify pursuant to 33 U.S.C. sec. 1341 that applicants for a federal permit for the construction or operation of facilities which may result in a discharge into the waters of the Commonwealth will comply with the applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. secs. 1251 et seq.).
  3. The cabinet shall not undertake either of the actions authorized in subsections (1) or (2) of this section unless the Governor of the Commonwealth has determined that such activity will be in the best interests of the environment and the people of the Commonwealth.
  4. The cabinet shall not impose under any permit issued pursuant to this section any effluent limitation, monitoring requirement, or other condition which is more stringent than the effluent limitation, monitoring requirement, or other condition which would have been applicable under federal regulation if the permit were issued by the federal government.
  5. Nonprofit organizations which have been qualified under Section 501(c)(3) of the Internal Revenue Code and which operate their own treatment facilities and which are designated for capacities less than ten thousand (10,000) gallons per day shall be charged a fee no greater than fifty dollars ($50) by the cabinet to process a construction permit, nor a fee greater than twenty dollars ($20) per year for an operating permit for one (1) facility. These fees shall in no case be higher than the fees charged by the cabinet to process permit applications for comparable privately owned facilities. This subsection shall not apply to any school or waterworks owned by a water district, water association, or municipality and established pursuant to KRS Chapters 74 or 106.
  6. The following activities do not require a permit issued under 33 U.S.C. sec. 1344 . The discharge of dredged or fill material:
    1. From normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor draining, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices;
    2. For the purpose of maintenance, including emergency reconstruction of recently damaged parts of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, bridge abutments or approaches, and transportation structures;
    3. For the purpose of construction or maintenance of farm or stock ponds, irrigation ditches, or the maintenance of drainage ditches;
    4. For the purpose of construction of temporary sedimentation basins on a construction site which does not include placement of fill material into the navigable waters; or
    5. For the purpose of construction or maintenance of farm roads, forest roads, or temporary roads for moving mining equipment, where the roads are constructed and maintained, in accordance with best management practices, to ensure that flow and circulation patterns and chemical and biological characteristics of the navigable waters are not impaired, that the reach of the navigable waters is not reduced, and that any adverse effect on the aquatic environment will be minimized.
  7. Prior to assuming delegated authority from the United States Environmental Protection Agency to administer 33 U.S.C. sec. 1344(e) and (g), the cabinet shall enter into a memorandum of agreement with the United States Department of Agriculture (USDA) regarding wetlands delineation on agricultural lands or lands owned or operated by a USDA program participant. The cabinet shall give the same deference to wetlands delineations made by USDA as would have been given by a federal agency administering 33 U.S.C. sec. 1344(e) and (g).
  8. The cabinet may establish by regulation a fee for processing permit applications under 33 U.S.C. sec. 1344 .

History. Enact. Acts 1974, ch. 355, § 3; 1978, ch. 257, § 2, effective June 17, 1978; 1990, ch. 412, § 2, effective July 13, 1990; 2005, ch. 174, § 1, effective June 20, 2005.

Compiler’s Notes.

This section was formerly compiled as KRS 224.034 .

Section 501(c)(3) of the Internal Revenue Code, referenced in this section, is compiled at 26 USCS § 501(c)(3).

NOTES TO DECISIONS

1.In General.

Since Kentucky has a procedure to issue § 401 certifications for permits under the Clean Water Act, which comes from the Corps of Engineers under CWA § 404, KRS 224.16-050 (2), and Kentucky’s antidegradation policy provides that Kentucky must maintain quality of its waters when granting CWA § 401 certifications, 401 KAR 5:029, even though Kentucky chose to focus their implementation procedures on KPDES permits, the Kentucky regulations still apply to water quality certifications as required under the CWA, and the EPA acted reasonably when it approved these procedures. Ky. Waterways Alliance v. Johnson, 426 F. Supp. 2d 612, 2006 U.S. Dist. LEXIS 15689 (W.D. Ky. 2006 ), aff'd in part and rev'd in part, 540 F.3d 466, 2008 FED App. 0333P, 2008 U.S. App. LEXIS 18802 (6th Cir. Ky. 2008 ).

2.Construction

While KRS 224.70-110 is very general in nature, KRS 224.16-050 (4) is unquestionably specific in its mandate, providing that no Kentucky Pollution Discharge Elimination System (KPDES) permit shall impose limitations, requirements or other conditions more stringent than would have been imposed under a federally issued National Pollutant Discharge Elimination System (NPDES) permit; the KPDES program is, in fact, expressly constrained by the federal NPDES permit program and, thus, cannot be implemented in a manner that is more stringent than federal law, case law clearly provides that an operation only needs a NPDES permit if that operation is a point source discharge, and it seems axiomatic that, where no federal NPDES permit would be required, any KPDES permit would necessarily be more stringent, and thus in conflict with KRS 224.16-050 (4). Commonwealth v. Sharp, 2012 Ky. App. LEXIS 189 (Ky. Ct. App. May 25, 2012).

Trial court did not address 401 Ky. Admin. Regs. 5:055, § 4 or KRS 224.16-050 (4), which provisions the court found to be directly applicable to the issues in this case; the Kentucky Pollution Discharge Elimination System permit program implements federal law and, therefore, by Kentucky statute, is confined to the scope of its federal counterpart, and thus the federal regulatory definition of a confined animal feeding operation is controlling. Commonwealth v. Sharp, 2012 Ky. App. LEXIS 189 (Ky. Ct. App. May 25, 2012).

While KRS 224.70-110 is very general in nature, KRS 224.16-050 (4) is unquestionably specific in its mandate, providing that no Kentucky Pollution Discharge Elimination System (KPDES) permit shall impose limitations, requirements or other conditions more stringent than would have been imposed under a federally issued National Pollutant Discharge Elimination System (NPDES) permit; the KPDES program is, in fact, expressly constrained by the federal NPDES permit program and, thus, cannot be implemented in a manner that is more stringent than federal law, and case law clearly provides that an operation only needs a NPDES permit if that operation is a point source discharge. It seems axiomatic that, where no federal NPDES permit would be required, any KPDES permit would necessarily be more stringent, and thus in conflict with KRS 224.16-050 (4). Adams v. Sharp, 2012 Ky. App. Unpub. LEXIS 1058 (Ky. Ct. App. May 25, 2012), review denied, ordered not published, 2013 Ky. LEXIS 569 (Ky. Oct. 16, 2013).

Trial court did not address 401 Ky. Admin. Regs. 5:055, § 4 or KRS 224.16-050 (4), which provisions were directly applicable in this case; the Kentucky Pollution Discharge Elimination System permit program implements federal law and, therefore, by Kentucky statute, is confined to the scope of its federal counterpart, and thus the federal regulatory definition of a confined animal feeding operations is controlling. Adams v. Sharp, 2012 Ky. App. Unpub. LEXIS 1058 (Ky. Ct. App. May 25, 2012), review denied, ordered not published, 2013 Ky. LEXIS 569 (Ky. Oct. 16, 2013).

Research References and Practice Aids

Kentucky Law Journal.

Plater, Coal Law from the Old World: A Perspective on Land Use and Environmental Regulation in the Coal Industries of the United States, Great Britain, and West Germany, 64 Ky. L.J. 473 (1975-76).

Northern Kentucky Law Review.

Perkins, Petroleum Storage Regulation in Kentucky, 22 N. Ky. L. Rev. 59 (1995).

224.16-060. Cabinet as agency for securing benefits of federal acts.

The cabinet is hereby designated as the water pollution agency for this state and for any city, county, or district, or authority within this state for all purposes of the Water Pollution Control Act (Public Law 80-845 approved June 30, 1948), as amended, as air pollution agency for this state for all purposes of the Federal Air Quality Act (Public Law 90-148, approved November 21, 1948), as amended, and as solid waste agency for this state for all purposes of the Federal Solid Waste Disposal Act (Public Law 89-272, approved October 20, 1965), as amended, and as management agency for solid waste and hazardous waste for purposes of the Resource Conservation and Recovery Act of 1976, as amended, (PL 94-580), and as the surface mining agency for this state for all purposes of the Federal Surface Mining Control and Reclamation Act (Public Law 95-87, approved August 3, 1977), as amended. The cabinet may take all action necessary or appropriate to secure to this state and all cities, counties, districts, and authorities within this state the benefits of such federal acts.

History. Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 8; 1978, ch. 113, § 4, effective June 17, 1978; 1978, ch. 330, § 25, effective May 3, 1978; 1984, ch. 111, § 183, effective July 13, 1984.

Compiler’s Notes.

This section was formerly compiled as KRS 224.037 .

The Water Pollution Control Act, the Federal Air Quality Act, and the Federal Surface Mining Control and Reclamation Act, referred to in this section, are compiled as 33 USCS § 1251 et seq., 42 USCS § 7401 et seq., and 30 USCS § 1201 et seq., respectively. The federal Solid Waste Disposal Act and the Resource Conservation and Recovery Act, referred to in this section, are compiled as 42 USCS § 3251 et seq. (these sections were omitted in the general amendment of the Solid Waste Disposal Act by Act Oct. 21, 1976, P.L. 94-580, § 2; similar provisions are now found at 42 USCS § 6901 et seq.) and 42 USCS § 6901 et seq., respectively.

224.16-070. Water quality certifications for surface coal mining operations for applicants eligible for Nationwide Permit 21 or 26.

  1. This section shall apply to the cabinet’s issuance, waiver, or denial of water quality certifications for surface coal mining operations, as defined in KRS 350.010 , if:
    1. The applicant for the water quality certification has applied to the cabinet for a permit in accordance with KRS Chapter 350 and the administrative regulations promulgated pursuant thereto;
    2. The applicant for the water quality certification is eligible for Nationwide Permit 21 or 26 issued in accordance with 33 U.S.C. sec. 1344 and 33 C.F.R. Part 330, Appendix A;
    3. The applicant’s surface coal mining operation will not impact waters of the Commonwealth designated by the cabinet in its water quality standards as outstanding state or national resource waters or as cold water aquatic habitat; and
    4. The applicant’s surface coal mining operation will not impact waters of the Commonwealth which are wetlands one (1) acre or more in size.
  2. If the watershed above the toe of the farthest downstream permanent structure authorized pursuant to Nationwide Permit 21 or 26 is less than four hundred eighty (480) acres for the surface coal mining operation meeting the criteria of subsection (1) of this section, the cabinet shall issue a water quality certification containing only the standard conditions set out in paragraphs (a) to (e) of this subsection.
    1. All earthwork operations shall be carried out so that sediment runoff and soil erosion to waters of the Commonwealth are controlled and minimized. Best management practices for water pollution control shall be used by the surface coal mining operation.
    2. Heavy equipment, such as bulldozers, backhoes, and draglines, shall not be used or operated within waters of the Commonwealth outside of the boundaries of a permanent structure, unless that use cannot be avoided. If use of heavy equipment within waters of the Commonwealth outside the boundaries of a permanent structure is unavoidable, then the work shall be performed so as to minimize resuspension of sediments and disturbance to substrates, banks, or riparian vegetation.
    3. Measures shall be taken to prevent and to control spills of fuels, lubricants, and other materials from entering waters of the Commonwealth.
    4. Any fill or riprap shall be of a composition that shall not cause violations of water quality standards by adversely affecting the biological, chemical, or physical properties of waters of the Commonwealth. If riprap is used, it shall be of a weight and size that bank stress or slump conditions shall not occur.
    5. Removal of riparian vegetation outside the boundaries of a permanent structure shall be minimized.
    1. If the watershed above the toe of the farthest downstream permanent structure authorized pursuant to Nationwide Permit 21 or 26 is greater than or equal to four hundred eighty (480) acres for the surface coal mining operation meeting the criteria of subsection (1) of this section, the cabinet may require a water quality certification containing conditions in addition to those standard conditions identified in subsection (2) of this section for the purpose of protecting water quality. (3) (a) If the watershed above the toe of the farthest downstream permanent structure authorized pursuant to Nationwide Permit 21 or 26 is greater than or equal to four hundred eighty (480) acres for the surface coal mining operation meeting the criteria of subsection (1) of this section, the cabinet may require a water quality certification containing conditions in addition to those standard conditions identified in subsection (2) of this section for the purpose of protecting water quality.
    2. The water quality certification may require mitigation at a maximum ratio of one (1) acre of mitigation area for every one (1) acre of permanent loss of waters of the Commonwealth on the permitted area, except for waters of the Commonwealth isolated as a result of the permanent structure.
    3. For waters of the Commonwealth isolated as a result of a permanent structure, the maximum mitigation ratio shall be five-tenths (0.5) acre of mitigation area for every one (1) acre of those isolated waters.
    4. The cabinet shall accept mitigation on the permitted area, mitigation off the permitted area, mitigation banking of waters of the Commonwealth, or any combination thereof, or any other mitigation measure acceptable to the cabinet.
    5. Upon completion of all mitigation work required by the water quality certification required by this subsection, the surface coal mining operation shall obtain a certification from a registered professional engineer that all mitigation work has been completed in accordance with the conditions of the water quality certification. The surface coal mining operation shall promptly submit the professional engineer’s certification to the cabinet. The cabinet shall promptly review the certification and provide to the surface coal mining operation written notice that all mitigation work has been successfully completed, or that further mitigation work is necessary to meet the conditions imposed by the water quality certification.
  3. The cabinet shall not require a water quality certification for a road crossing on the permitted area impacting less than two hundred (200) linear feet of waters of the Commonwealth.
  4. The cabinet shall confer with representatives of the surface coal mining industry and representatives of environmental organizations with an interest in water quality in developing a manual of approvable options for mitigation on permitted areas, mitigation off permitted areas, mitigation involving banking of waters of the Commonwealth, and removal of temporary sediment structures at surface coal mining operations as a mitigation option.
    1. The cabinet shall have ten (10) working days to make a determination that an application for a water quality certification is administratively complete or to notify the applicant of specific deficiencies. (6) (a) The cabinet shall have ten (10) working days to make a determination that an application for a water quality certification is administratively complete or to notify the applicant of specific deficiencies.
    2. The cabinet shall have forty (40) working days to review an administratively complete application for a water quality certification, to issue or waive that certification, or to deny that certification with specific deficiencies identified, and to notify the applicant of the final determination. If the cabinet has not notified the applicant of its final determination within forty (40) days of receiving an administratively complete application, the water quality certification shall be deemed waived.
  5. Nothing in this section shall be construed as abrogating the cabinet’s ability to require water quality certifications for surface coal mining operations that do not meet the criteria of subsection (1) of this section.

History. Enact. Acts 1994, ch. 365, § 1, effective July 15, 1994.

SUBCHAPTER 18. Interstate Relations

Interstate Environmental Compact

224.18-100. Interstate Environmental Compact — Kentucky as party — Substance.

The Kentucky General Assembly recognizes that the purity and lifegiving qualities of our environment are of great concern to the people of the Commonwealth and to all Americans, that the ultimate responsibility for the quality of Kentucky’s environment rests upon the government of the Commonwealth, and that ecological systems and environmental problems cross state boundaries. Therefore, the Kentucky General Assembly recognizes that the discharge of this responsibility can be enhanced by acting in concert and cooperation with our sister states and with the national government, insofar as such cooperative governmental efforts are consistent with the laws of the Commonwealth of Kentucky. The “Interstate Environmental Compact” is hereby ratified, enacted into law, and entered into by the Commonwealth of Kentucky as a party thereto with all other jurisdictions legally joining herein, as follows:

INTERSTATE ENVIRONMENTAL COMPACT

History. Enact. Acts 1972, ch. 105, § 1, effective June 16, 1972.

The Contracting Jurisdictions Solemnly Agree That:

ARTICLE I

  1. Signatory states hereby find and declare:
    1. The environment of every state is affected with local, state, regional and national interest and its protection under appropriate arrangements for intergovernmental cooperation, are public purposes of the respective signatories.
    2. Certain environmental pollution problems transcend state boundaries and thereby become common to adjacent states requiring cooperative efforts.
    3. The environment of each state is subject to the effective control of the signatories, and coordinated, cooperative or joint exercise of control measures is in their common interests.
  2. The purposes of the signatories in enacting this Compact are:
    1. To assist and participate in the national environment protection programs as set forth in federal legislation; to promote intergovernmental cooperation for multistate action relating to environmental protection through interstate agreements and to encourage cooperative and coordinated environmental protection by the signatories and the Federal Government;
    2. To preserve and utilize the functions, powers and duties of existing state agencies of government to the maximum extent possible consistent with the purposes of the Compact.
    1. Nothing contained in this Compact shall impair, affect or extend the constitutional authority of the United States. (3) (a) Nothing contained in this Compact shall impair, affect or extend the constitutional authority of the United States.
    2. The signatories hereby recognize the power and right to the Congress of the United States at any time by any statute expressly enacted for the purpose to revise the terms and conditions of its consent.
  3. Nothing contained in this Compact shall impair or extend the constitutional authority of any signatory state, nor shall the police powers of any signatory state be affected except as expressly provided in a supplementary agreement under Article 4.

ARTICLE II

  1. This Compact shall be known and may be cited as the Interstate Environmental Compact.
  2. For the purpose of this Compact and of any supplemental or concurring legislation enacted pursuant or in relation hereto, except as may be otherwise required by the context:
    1. “State” shall mean any one of the fifty states of the United States of America, the Commonwealth of Puerto Rico and the Territory of the Virgin Islands, but shall not include the District of Columbia.
    2. “Interstate environment pollution” shall mean any pollution of a stream or body of water crossing or marking a state boundary, interstate air quality control region designated by an appropriate federal agency or solid waste collection and disposal district or program involving the jurisdiction of territories of more than one state.
    3. “Government” shall mean the governments of the United States and the signatory states.
    4. “Federal Government” shall mean the government of the United States of America and any appropriate department, instrumentality, agency, commission, bureau, division, branch or other unit thereof, as the case may be, but shall not include the District of Columbia.
    5. “Signator” shall mean any state which enters into this Compact and is a party thereto.

ARTICLE III

Agreements with the Federal Government and other Agencies. Signatory states are hereby authorized jointly to participate in cooperative or joint undertakings for the protection of the interstate environment with the Federal Government or with any intergovernmental or interstate agencies.

ARTICLE IV

  1. Signatories may enter into agreements for the purpose of controlling interstate environmental problems in accordance with applicable federal legislation and under terms and conditions as deemed appropriate by the agreeing states under Paragraph (6) and Paragraph (8) of this Article.
  2. Recognition of Existing Nonenvironmental Intergovernmental Arrangements.  The signatories agree that existing federal-state, interstate or intergovernmental arrangements which are not primarily directed to environmental protection purposes as defined herein are not affected by this Compact.
  3. Recognition of Existing Intergovernmental Agreements Directed to Environmental Objectives.  All existing interstate Compacts directly relating to environmental protection are hereby expressly recognized and nothing in the Compact shall be construed to diminish or supersede the powers and functions of such existing intergovernmental agreements and the organizations created by them.
  4. Modification of Existing Commissions and Compacts.  Recognition herein of multistate commissions and compacts shall not be construed to limit directly or indirectly the creation of additional multistate organizations or interstate compacts, nor to prevent termination, modification, extension, or supplementation of such multistate organizations and interstate compacts recognized herein by the Federal Government or states party thereto.
  5. Recognition of Future Multistate Commissions and Interstate Compacts.  Nothing in this Compact shall be construed to prevent signatories from entering into multistate organizations or other interstate compacts which do not conflict with their obligations under this Compact.
  6. Supplementary Agreements.  Any two or more signatories may enter into supplementary agreements for joint, coordinated or mutual environmental management activities relating to interstate pollution problems common to the territories of such states and for the establishment of common or joint regulation, management, services, agencies or facilities for such purposes or may designate an appropriate agency to act as their joint agency in regard thereto. No supplementary agreement shall be valid to the extent that it conflicts with the purposes of this Compact and the creation of a joint agency by supplementary agreement shall not affect the privileges, powers, responsibilities or duties under this Compact of signatories participating therein as embodied in this Compact.
  7. Execution of Supplementary Agreements and Effective Date.  The Governor is authorized to enter into supplementary agreements for the state and his official signature shall render the agreement immediately binding upon the state;

    Provided that:

    1. The legislature of any signatory entering into such a supplementary agreement shall at its next legislative session by concurrent resolution bring the supplementary agreement before it and by appropriate legislative action approve, reverse, modify or condition the agreement of that state.
    2. Nothing in this agreement shall be construed to limit the right of Congress by act of law expressly enacted for that purpose to disapprove or condition such a supplementary agreement.
  8. Special Supplementary Agreements.  Signatories may enter into special supplementary agreements with the District of Columbia or foreign nations for the same purposes and with the same powers as under Paragraph (6), Article 4, upon the condition that such nonsignatory party accept the general obligations of signatories under this Compact. Provided, that such special supplementary agreements shall become effective only after being consented to by the Congress.
  9. Jurisdiction of Signatories Reserved.  Nothing in this Compact or in any supplementary agreement thereunder shall be construed to restrict, relinquish, or be in derogation of, any power or authority constitutionally possessed by any signatory within its jurisdiction, except as specifically limited by this Compact or by supplementary agreement.
  10. Complementary Legislation by Signatories.  Signatories may enact such additional legislation as may be deemed appropriate to enable its officers and governmental agencies to accomplish effectively the purposes of this Compact and supplementary agreements recognized or entered into under the terms of this Article.
  11. Legal Rights of Signatories.  Nothing in this Compact shall impair the exercise by any signatory of its legal rights or remedies established by the United States Constitution or any other laws of this Nation.

ARTICLE V

Construction, Amendment and Effective Date.

  1. It is the intent of the signatories that no provision of this Compact or supplementary agreement entered into hereunder shall be construed as invalidating any provision of law of any signatory and that nothing in this Compact shall be construed to modify or qualify the authority of any signatory to enact or enforce environmental protection legislation within its jurisdiction and not inconsistent with any provision of this Compact or a supplementary agreement entered into pursuant hereto.
  2. The provisions of this Compact or of agreements hereunder shall be severable and if any phrase, clause, sentence or provision of this Compact, or such an agreement is declared to be contrary to the Constitution of any signatory or of the United States or is held invalid, the constitutionality of the remainder of this Compact or of any agreement and the applicability thereof to any participating jurisdiction, agency, person or circumstance shall not be affected thereby and shall remain in full force and effect as to the remaining participating jurisdictions and in full force and effect as to the signatory affected as to all severable matters. It is the intent of the signatories that the provisions of this Compact shall be reasonably and liberally construed in the context of its purposes.
  3. Amendments to this Compact may be initiated by legislative action of any signatory and become effective when concurred in by all signatories and approved by Congress.
  4. This Compact shall become binding on a state when enacted by it into law and such state shall thereafter become a signatory and party hereto with any and all states legally joining herein.
  5. A state may withdraw from this Compact by authority of an act of its legislature one year after it notifies all signatories in writing of an intention to withdraw from the Compact. Provided, withdrawal from the Compact affects obligations of a signatory imposed on it by supplementary agreements to which it may be a party only to the extent and in accordance with the terms of such supplementary agreements.

Compiler’s Notes.

This section was formerly compiled as KRS 224.610 .

224.18-110. Supplementary agreements — Appropriation of funds by General Assembly — Exceptions.

Any supplementary agreement entered into pursuant to Article IV of the Compact and requiring the expenditure of funds or the assumption of an obligation to expend funds shall not become effective as to this state prior to the making of an appropriation therefor by the General Assembly, with the following exceptions:

  1. The Governor may use special appropriations as are made available for emergency purposes;
  2. The Governor may use any such funds as are made available to him by the federal government or any other source specifically for the creation and implementation of supplemental agreements under KRS 224.18-100 to 224.18-110 ; and
  3. Where an agency of the state can better carry out the purpose for which it was created by the Legislature by cooperative actions with other states under the terms of this Compact, such agency may, with the consent of the Governor, expend funds appropriated to it for such purpose.

History. Enact. Acts 1972, ch. 105, § 2, effective June 16, 1972.

Compiler’s Notes.

This section was formerly compiled as KRS 224.620 .

Air Pollution

224.18-200. Interstate Compact on Air Pollution.

The Interstate Compact on Air Pollution is enacted into law and entered into with all other jurisdictions legally joining therein in the form substantially as follows:

History. Enact. Acts 1968, ch. 141, § 1, effective June 13, 1968.

INTERSTATE COMPACT ON AIR POLLUTION

ARTICLE I

The party states to this compact hereby provide for the control of the interstate movement of air pollutants through the establishment of an interstate agency with powers to prevent, abate, and control interstate air pollution.

Each of the party states pledges to the other faithful cooperation in the control of air pollution which originates in one state and is injurious to human health or welfare, animal or plant life, or property, or which interferes with the enjoyment of life or property, in the other state.

The party states recognize that no single standard for outdoor atmosphere is applicable to all areas within the two party states due to such variables as population densities, topographic and climatic characteristics, and existing or projected land use and economic development. The guiding principle of this compact is that air pollution originating within a party state shall not be injurious to human health or welfare, animal or plant life, or property, or interfere with the enjoyment of life or property in the other party state.

ARTICLE II

As used in this compact “air pollution” means the discharge into the air by the act of man of substances (liquid, solid, gaseous, organic or inorganic) in a locality, manner and amount as to be injurious to human health or welfare, animal or plant life, or property, or which would interfere with the enjoyment of life or property.

ARTICLE III

The party states hereby create the Interstate Air Pollution Control Commission, hereafter called “the commission.”

The commission shall consist of five commissioners from each party state, each of whom shall be a citizen of the state he represents, and one commissioner representing the United States Government who shall be appointed by the President of the United States, or in such other manner as may be provided by the Congress. The commissioners from each party state shall be chosen by the governor of such state in accordance with the laws of such state, as follows:

Two of the members from each state shall be chosen from appropriate state agencies, one of whom is the officer responsible for air pollution control, and one of whom is the director of state health department. Three other members shall be chosen, one of whom is experienced in the field of municipal government, one of whom is experienced in the field of industrial activities, and one of whom represents the public.

Except for the commissioner representing the United States Government and commissioners who shall be appointed by virtue of the offices which they hold and who may be commissioners during their continuance in office, the term of each commissioner shall be four years. However, the commissioner experienced in the field of municipal government, the commissioner experienced in the field of industrial activities, and the commissioner appointed to represent the public shall be appointed, one for an initial term of one year, one for an initial term of two years, and one for an initial term of three years. As the term of each such initial appointee expires, the successor to fill the vacancy created by such expired term shall be appointed for a term of four years.

Vacancies on the commission shall be filled for the unexpired term in the same manner as appointments to full terms.

Each commissioner shall be entitled to one vote in the commission. No action of the commission shall be binding unless taken at a meeting in which a majority of the commissioners from each party state are present and unless a majority of those present at the meeting from each party state concur, but any action not binding for such a reason may be ratified within thirty days by the concurrence of a majority of the commissioners of each party state. In the absence of any commissioner, his vote may be cast by another commissioner of his state if such commissioner casting the vote shall have a written proxy in such form as may be required by the commission.

The commission may sue and be sued, and shall have a seal.

The commission shall elect annually, from among its members, a chairman and vice chairman. The commission shall appoint an executive director who shall act as secretary, and who, together with such other commission personnel as the commission may determine, shall be bonded in such amount or amounts as the commission may require.

Notwithstanding the civil service, personnel, or other merit systems laws of any of the party states, the commission shall appoint, remove or discharge, and fix the compensation of personnel necessary for the performance of the commission’s functions. To the extent practicable, terms and conditions of employment for members of the staff of the commission shall be similar to those pertaining to comparable employees of the individual party states.

The commission may establish and maintain, independently or in conjunction with one or more of the party states, a suitable retirement system for its employees. Employees of the commission shall be eligible for social security coverage in respect to old-age and survivors insurance, if the commission takes the steps necessary pursuant to federal law to participate in such program of insurance as a governmental agency or unit. The commission may establish and maintain or participate in additional programs of employee benefits appropriate to afford employees of the commission terms and conditions of employment similar to those enjoyed by employees of the party states generally.

The commission may accept, or contract for the services of personnel and other services or materials from any state, the United States or any subdivision or agency of either, from any interstate agency, or from any institution, person, firm, or corporation.

The commission may accept for any of its purposes and functions under this compact any and all donations, and grants of money, equipment, supplies, materials, and services conditional or otherwise, from the United States, or any agency thereof, from any state or any subdivision or agency thereof, or from any institution, person, firm, or corporation, and may receive, utilize, and dispose of the same. The identity of any donor, the amount and character of any assistance, and the conditions, if any, attached thereto shall be set forth in the annual report of the commission.

The commission may establish and maintain the facilities necessary for the transacting of its business. The commission may acquire, hold, and convey real and personal property and any interest therein.

The commission may formulate and adopt rules and regulations and perform any act which it finds necessary to carry out the provisions of this compact, and may amend such rules and regulations. All such rules and regulations shall be filed in the office of the commission for public inspection and copies of such rules and regulations shall be filed in the office in each party state in which rules and regulations of state agencies are filed and shall thereafter be made available to interested persons upon request.

The commission annually shall make to the governor and legislature of each party state a report covering the activities of the commission for the preceding year, and embodying recommendations adopted by the commission. The commission may issue such additional reports as it may deem desirable. These reports shall be available for public examination.

The commission shall have the authority to collect and disseminate information relating to its functions under, and the purpose of, this compact.

ARTICLE IV

The commission, may, whenever it finds air pollution which originates in one of the party states and has an adverse effect in the other party state, make a report recommending measures for the prevention, abatement, or control of the air pollution. Copies of the report shall be furnished to all existing state and local air pollution control agencies with jurisdiction over the sources of air pollution identified in the report. In preparing any report, the commission may confer with any appropriate national, regional, or local planning body, and any governmental agency authorized to deal with matters relating to air pollution problems and may conduct such hearings and investigations as it may deem appropriate. The commission may consult with and advise the states and local governments, corporations, persons, or other entities with regard to the adoption of programs and the installation of equipment and works for the prevention, abatement, or control of air pollution. For the enforcement of this compact the commission may also establish standards consistent with the provisions of this compact and any standards which may be adopted by the party states.

Before any report of the commission which specifically identifies a particular industrial or other installation, structure, or facility as a source of air pollution becomes final, the commission shall give the owner or operator of the installation, structure, or facility notice by certified mail of the anticipated adoption of such report and shall afford the owner or operator of the installation, structure, or facility not less than ten days after the mailing of such notice to file with the commission its written objections thereto. If no such objections are filed with the commission within such specified period, the report shall become final. If the objections are filed with the commission within the specified period, the commission shall afford the owner or operator not less than ten days from its receipt of objections to discuss with the commission the findings, conclusions, and recommendations of the report before it is finally adopted by the commission.

Within a reasonable time after the commission furnishes a report to the appropriate existing state and local air pollution control agencies pursuant to this article and, if the recommendations made in such report for the prevention, abatement, or control of air pollution from a specific source or sources have not been implemented, or if the appropriate state or local air pollution control agencies have not taken sufficient action to prevent, abate, or control the air pollution, the commission may, after a duly conducted and constituted hearing, on due notice, issue an order upon any municipality, corporation, person, or other entity causing or contributing to interstate air pollution. At any such hearing evidence may be received and a finding made on whether, in fact, interstate air pollution exists and on the sources of such pollution. Any order may prescribe a timetable for the abatement of control of the air pollution involved. Any such order shall become final and binding unless a petition for review of the same shall be filed and prosecuted pursuant to the provisions of Article V of this compact.

In a party state, any court of general jurisdiction in any county in which the air pollution originates or any United States district court for the district in which the pollution originates shall entertain and determine any action or proceeding brought by the commission to enforce an order against any municipality, corporation, person, or other entity domiciled or located within such state and whose discharge of air pollution takes place within or adjoining such state, or against any employee, department, or subdivision of such municipality, corporation, person or other entity, and shall entertain and determine any petition for review pursuant to the provisions of Article V of this compact.

ARTICLE V

All hearings held by the commission shall be open to the public. At any hearing held pursuant to Article IV of this compact the party states, any agencies thereof, and any affected person, corporation, municipality, or other entity shall be entitled to appear in person or by representative, with or without counsel, and may make oral or written argument, offer testimony, or take any combination of such actions. All testimony taken before the commission shall be under oath and recorded in a written transcript. The transcript so recorded shall be made available to any member of the public or to any participant in such hearing upon payment of reasonable charges as fixed by the commission. No information relating to secret processes or methods of manufacture or production shall be disclosed at any public hearing or otherwise and all such information shall be kept confidential.

All hearings shall be had before one or more members of the commission, or before an officer or employee of the commission expressly designated to act as a hearing officer.

Any party state or person aggrieved by any order made by the commission shall be entitled to a judicial review thereof. Such review may be had by filing a verified petition in any of the appropriate courts referred to in Article IV, setting out such order and alleging specifically that said order is:

  1. Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; or
  2. Contrary to constitutional right, power, privilege, or immunity; or
  3. In excess of authority or jurisdiction conferred by this compact or statutes in implementation hereof; or
  4. Without observance of procedure required by law; or
  5. Not within the purposes of this compact; or
  6. Unsupported by the weight of the evidence.

    The petition for a review shall be filed within thirty-five days after receipt of written notice that the order has been issued. Written notice of the filing of a petition for review and a copy of said petition shall be personally served upon the commission. Any party or person filing a petition for review shall, within fifteen days thereafter, secure from the commission a certified copy of the transcript of any hearing held in connection with the issuance of the order, review of which is sought, and shall file the same with the clerk of the court in which the action or proceeding for review is pending. An extension of time in which to file a transcript shall be granted by said court in which such action or proceeding for review is pending for good cause shown. Inability to obtain a transcript within the specified time shall be good cause. Failure to file a transcript within the period of fifteen days, or to secure an extension of time therefor, shall be cause for the dismissal of the petition for review by the court or on petition of any party of record to the original action or proceeding. Where more than one person may be aggrieved by the order, only one proceeding for review may be had and the court in which a petition for review is first properly filed shall have jurisdiction.

    The court may, for good cause shown, admit and consider additional evidence bearing upon the issue or issues before it.

    No review of a commission order shall be had except in accordance with the provisions of this compact.

ARTICLE VI

The commission may establish one or more advisory and technical committees composed of such as the following: private citizens, expert and lay personnel, representatives of industry, labor, commerce, agriculture, civic associations, and officials of local, state, and federal government, as it may determine, and may cooperate with and use the services of any such committee and the organizations which they represent in furthering any of its activities under this compact.

ARTICLE VII

Nothing in this compact shall be construed to:

  1. Limit or otherwise affect the powers of either party state or any of their subdivisions to enact and enforce laws or ordinances for the prevention, abatement, or control of air pollution within their respective borders.
  2. Prevent or restrict either party state or any subdivision thereof in requiring or prescribing measures of air pollution prevention, abatement, or control in addition to those which may be required by either party state or the commission acting pursuant to this compact.

ARTICLE VIII

The commission shall submit to the governor or designated officer or officers of each party state a budget of its estimated expenditures for such period as may be required by the laws of that state for presentation to the legislature thereof.

Each of the commission’s budgets of estimated expenditures shall contain specific recommendations of the amount or amounts to be appropriated by each of the party states. Aside from such support as may be available to the commission pursuant to Article III, the cost of operating and maintaining the commission shall be borne equally by the party states.

The commission may meet any of its obligations in whole or in part with funds available to it under Article III of this compact, provided that the commission takes specific action setting aside such funds prior to the incurring of any obligation to be met in whole or in part in this manner. Except where the commission makes use of funds available to it under Article III, the commission shall not incur any obligations prior to the allotment of funds by the party states adequate to meet the same.

The expenses and any other costs for each member of the commission shall be met by the commission in accordance with such standards and procedures as it may establish in its rules and regulations.

The commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the commission shall be subject to the audit and accounting procedures established under its rules and regulations. However, all receipts and disbursements of funds handled by the commission shall be audited yearly by a certified or licensed public accountant and the report of the audit shall be included in and become a part of the annual report of the commission.

The accounts of the commission shall be open at any reasonable time for inspection by duly constituted officers of the party states and by any persons authorized by the commission.

Nothing contained herein shall be construed to prevent commission compliance with laws relating to audit or inspection of accounts by or on behalf of any government contributing to the support of the commission.

ARTICLE IX

  1. This compact shall become effective when enacted into law by any state in addition to the Commonwealth of Kentucky. Thereafter, this compact shall become effective as to any other state upon its enactment thereby.
  2. Any party state may withdraw from this compact by enacting a statute repealing same, but no withdrawal shall take effect until one year after the governor of the withdrawing state has given notice in writing of the withdrawal to the governor of all other party states. No withdrawal shall affect any liability already incurred by or chargeable to a party state prior to the time of the withdrawal.
  3. Any order of the commission issued prior to the termination of this compact shall be enforceable thereafter by either party state in the same manner as though this compact were still in force except that any appropriate office or agency of the enforcing party state may act in the place and stead of the commission.

ARTICLE X

The provisions of this compact shall be reasonably and liberally construed. The provisions of this compact shall be severable and if any phrase, clause, sentence, or provision is declared to be contrary to the constitution of either state or of the United States, or the applicability thereof to any government agency, person, or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person, or circumstance shall not be affected.

Compiler’s Notes.

This section was formerly compiled as KRS 224.510 .

224.18-210. Interstate commissioners — Appointment — Duties.

Pursuant to Article III of the compact set forth in KRS 224.18-200 , the Governor shall appoint four (4) commissioners in addition to the secretary of the Energy and Environment Cabinet as members of the Interstate Air Pollution Control Commission. The commissioners shall promulgate rules and regulations to carry out more effectively the terms of the compact. The commissioners shall cooperate with all cabinets, agencies, and officers of and in the government of this state and its subdivisions in facilitating the proper administration of the compact and all such cabinets, agencies, and officers shall cooperate with the commissioners.

History. Enact. Acts 1968, ch. 141, § 2, effective June 13, 1968; 1972 (1st Ex. Sess.), ch. 3, § 50, effective January 1, 1973; 1974, ch. 74, Art. III, §§ 1, 13(2), effective June 21, 1974; 2010, ch. 24, § 359, effective July 15, 2010.

Compiler’s Notes.

This section was formerly compiled as KRS 224.515 .

224.18-220. Payments under compact — How made.

Any payments necessary to discharge any financial obligations imposed upon the State of Kentucky by the compact, as provided in KRS 224.18-200 , shall be made from the general fund appropriations to the Interstate Air Pollution Control Commission upon presentation to the Finance and Administration Cabinet of itemized vouchers signed by the secretary of the Energy and Environment Cabinet.

History. Enact. Acts 1968, ch. 141, § 3; 1972 (1st Ex. Sess.), ch. 3, § 51; 1974, ch. 74, Art. II, § 9(1), Art. III, §§ 1, 13(2), effective June 21, 1974; 2010, ch. 24, § 360, effective July 15, 2010.

Compiler’s Notes.

This section was formerly compiled as KRS 224.520 .

River Basins

224.18-710. Interstate Water Sanitation Board.

  1. A three (3) member Interstate Water Sanitation Board is established. The members of the board shall serve as Kentucky’s members of interstate water sanitation control commissions created by compacts to which Kentucky is a party, which compacts are composed of states forming a river basin, and which compacts require a three (3) member representation from each state. The Governor shall appoint one (1) of the board members, who shall be a resident and citizen of this state. The member shall be appointed for a term of four (4) years, and shall hold office until his successor is appointed and qualified, subject to removal at the pleasure of the Governor. The Lieutenant Governor and the secretary of the Energy and Environment Cabinet shall, ex officio, be the second and third members of the board. Except as otherwise provided by the respective compacts, an ex officio member may delegate to any deputy or other subordinate in his cabinet the power to be present and participate, including the right to vote, as his representative or substitute at any meeting, hearing or other proceeding of the commissions.
  2. The membership of the first Interstate Water Sanitation Board shall be composed of the membership of the Ohio River Valley Water Sanitation Commission existing on June 19, 1958, and the terms of the appointed members shall be effective from the date of their appointment to the Ohio River Valley Water Sanitation Commission.

History. 4286b-2: amend. Acts 1958, ch. 44, § 2, effective June 19, 1958; 1972 (1st Ex. Sess.), ch. 3, § 47, effective January 1, 1973; 1974, ch. 74, Art. III, §§ 1, 13(2), effective June 21, 1974; 1980, ch. 141, § 12, effective July 15, 1980; 2010, ch. 24, § 361, effective July 15, 2010.

Compiler’s Notes.

This section was formerly compiled as KRS 220.560 and 224.205 .

224.18-715. Powers of commissions — Duties of state agencies.

The interstate water sanitation control commissions created by compacts to which Kentucky is a party, which compacts are composed of states forming a river basin, shall have all the powers provided for in the respective compacts, and all the powers necessary or incidental to the carrying out of the compacts in every particular. All officers of this state shall do all things falling within their respective provinces and jurisdictions necessary or incidental to the carrying out of the compacts in every particular, it being the policy of this state to perform and carry out the compacts and to accomplish the purposes thereof. All officers, departments, cabinets and persons of and in the state government or administration of this state shall at convenient times and upon request of the respective commissions furnish the commissions with information and data possessed by them and aid the commissions by loan of personnel or other means lying within their legal powers respectively. The courts of general jurisdiction of this state shall have the jurisdiction specified in the enforcement articles of the compacts, and the Attorney General or any other law-enforcing officer of this state shall have the power to institute any action for the enforcement of the orders of the commissions. Any powers granted to the commissions by this section shall be regarded as in aid of and supplemental to and not as a limitation upon any of the powers vested in the commissions by other laws of this state or by the laws of any of the states party to any of the compacts, or by Congress, or by the terms of the compacts.

History. 4286b-3, 4286b-4: amend. Acts 1958, ch. 44, § 3, effective June 19, 1958.

Compiler’s Notes.

This section was formerly compiled as KRS 220.570 and 224.210 .

NOTES TO DECISIONS

Cited:

Johnson v. Louisville, 261 S.W.2d 429, 1953 Ky. LEXIS 1014 ( Ky. 1953 ).

224.18-760. Ohio River Valley Water Sanitation Compact.

History. 4286b-1.

The following Ohio River Valley Water Sanitation Compact, which has been negotiated by representatives of the states of Illinois, Indiana, Kentucky, New York, Ohio, Pennsylvania, Tennessee and West Virginia, is approved, ratified, adopted, enacted into law, and entered into by the Commonwealth of Kentucky as a party thereto and signatory state, namely:

OHIO RIVER VALLEY WATER SANITATION COMPACT

Between the States of Illinois, Indiana, Kentucky, New York, Ohio, Pennsylvania, Tennessee and West Virginia

Pursuant to authority granted by an Act of the 74th Congress of the United States, Public Resolution 104, approved June 8, 1936, conferences of delegates appointed to draft the compact were held at Cincinnati, Ohio, on November 20, 1936; January 17, 1938; May 24, 1938; June 13, 1938; October 11, 1938.

Whereas, A substantial part of the territory of each of the signatory states is situated within the drainage basin of the Ohio River; and

Whereas, The rapid increase in the population of the various metropolitan areas situated within the Ohio drainage basin, and the growth in industrial activity within that area, have resulted in recent years in an increasingly serious pollution of the waters and streams within the said drainage basin, constituting a grave menace to the health, welfare, and recreational facilities of the people living in such basin, and occasioning great economic loss; and

Whereas, The control of future pollution and the abatement of existing pollution in the waters of said basin are of prime importance to the people thereof, and can best be accomplished through the cooperation of the States situated therein, by and through a joint or common agency;

Now, Therefore, The States of Illinois, Indiana, Kentucky, New York, Ohio, Pennsylvania, Tennessee and West Virginia do hereby covenant and agree as follows:

ARTICLE I

Each of the signatory States pledges to each of the other signatory States faithful cooperation in the control of future pollution in and abatement of existing pollution from the rivers, streams and waters in the Ohio River basin which flow through, into or border upon any of such signatory States, and in order to effect such object, agrees to enact any necessary legislation to enable each such State to place and maintain the waters of said basin in a satisfactory sanitary condition, available for safe and satisfactory use as public and industrial water supplies after reasonable treatment, suitable for recreational usage, capable of maintaining fish and other aquatic life, free from unsightly or malodorous nuisances due to floating solids or sludge deposits, and adaptable to such other uses as may be legitimate.

ARTICLE II

The signatory States hereby create a district to be known as the “Ohio River Valley Water Sanitation District,” hereinafter called the District, which shall embrace all territory within the signatory States, the water in which flows ultimately into the Ohio River, or its tributaries.

ARTICLE III

The signatory States hereby create the “Ohio River Valley Water Sanitation Commission,” hereinafter called the Commission, which shall be a body corporate, with the powers and duties set forth herein, and such additional powers as may be conferred upon it by subsequent action of the respective legislatures of the signatory States or by act or acts of the Congress of the United States.

ARTICLE IV

The Commission shall consist of three commissioners from each State, each of whom shall be a citizen of the State from which he is appointed, and three commissioners representing the United States Government. The commissioners from each State shall be chosen in the manner and for the terms provided by the laws of the States from which they shall be appointed, and any commissioner may be removed or suspended from office as provided by the law of the State from which he shall be appointed. The commissioners representing the United States shall be appointed by the President of the United States, or in such other manner as may be provided by Congress. The commissioners shall serve without compensation, but shall be paid their actual expenses incurred in and incident to the performance of their duties; but nothing herein shall prevent the appointment of an officer or employee of any State or of the United States Government.

ARTICLE V

The Commission shall elect from its number a chairman and vice chairman, and shall appoint, and at its pleasure remove or discharge, such officers and legal, clerical, expert and other assistants as may be required to carry the provisions of this compact into effect, and shall fix and determine their duties, qualifications and compensation. It shall adopt a seal and suitable bylaws, and shall adopt and promulgate rules and regulations for its management and control. It may establish and maintain one or more offices within the District for the transaction of its business, and may meet at any time or place. One or more commissioners from a majority of the member States shall constitute a quorum for the transaction of business.

The Commission shall submit to the Governor of each State, at such time as he may request, a budget of its estimated expenditures for such period as may be required by the laws of such State for presentation to the legislature thereof.

The Commission shall keep accurate books of account, showing in full its receipts and disbursements, and said books of account shall be open at any reasonable time to the inspection of such representatives of the respective signatory States as may be duly constituted for that purpose.

On or before the first day of December of each year, the Commission shall submit to the respective governors of the signatory States a full and complete report of its activities for the preceding year.

The Commission shall not incur any obligations of any kind prior to the making of appropriations adequate to meet the same; nor shall the Commission pledge the credit of any of the signatory States, except by and with the authority of the legislature thereof.

ARTICLE VI

It is recognized by the signatory States that no single standard for the treatment of sewage or industrial wastes is applicable in all parts of the District due to such variable factors as size, flow, location, character, self-purification, and usage of waters within the District. The guiding principle of this compact shall be that pollution by sewage or industrial wastes originating within a signatory State shall not injuriously affect the various uses of the interstate waters as hereinbefore defined.

All sewage from municipalities or other political subdivisions, public or private institutions, or corporations, discharged or permitted to flow into these portions of the Ohio River and its tributary waters which form boundaries between, or are contiguous to, two or more signatory States, or which flow from one signatory State into another signatory State, shall be so treated, within a time reasonable for the construction of the necessary works, as to provide for substantially complete removal of settleable solids, and the removal of not less than forty-five percent (45%) of the total suspended solids; provided that in order to protect the public health or to preserve the waters for other legitimate purposes, including those specified in Article I, in specific instances such higher degree of treatment shall be used as may be determined to be necessary by the Commission after investigation, due notice and hearing.

All industrial wastes discharged or permitted to flow into the aforesaid waters shall be modified or treated, within a time reasonable for the construction of the necessary works, in order to protect the public health or to preserve the waters for other legitimate purposes, including those specified in Article I, to such degree as may be determined to be necessary by the Commission after investigation, due notice and hearing.

All sewage or industrial wastes discharged or permitted to flow into tributaries of the aforesaid waters situated wholly within one State shall be treated to that extent, if any, which may be necessary to maintain such waters in a sanitary and satisfactory condition at least equal to the condition of the waters of the interstate stream immediately above the confluence.

The Commission is hereby authorized to adopt, prescribe and promulgate rules, regulations and standards for administering and enforcing the provisions of this article.

ARTICLE VII

Nothing in this compact shall be construed to limit the powers of any signatory State, or to repeal or prevent the enactment of any legislation or the enforcement of any requirement by any signatory State, imposing additional conditions and restrictions to further lessen or prevent the pollution of waters within its jurisdiction.

ARTICLE VIII

The Commission shall conduct a survey of the territory included within the District, shall study the pollution problems of the District, and shall make a comprehensive report for the prevention or reduction of stream pollution therein. In preparing such report, the Commission shall confer with any national or regional planning body which may be established, and any department of the Federal Government authorized to deal with matters relating to the pollution problems of the District. The Commission shall draft and recommend to the governors of the various signatory States uniform legislation dealing with the pollution of rivers, streams and waters and other pollution problems within the District. The Commission shall consult with and advise the various States, communities, municipalities, corporations, persons or other entities with regard to particular problems connected with the pollution of waters, particularly with regard to the construction of plants for the disposal of sewage, industrial and other waste. The Commission shall, more than one month prior to any regular meeting of the legislature of any State which is a party thereto, present to the governor of the State its recommendations relating to enactments to be made by any legislature in furthering the intents and purposes of this compact.

ARTICLE IX

The Commission may from time to time, after investigation and after a hearing, issue an order or orders upon any municipality, corporation, person, or other entity discharging sewage or industrial waste into the Ohio River or any other river, stream or water, any part of which constitutes any part of the boundary line between any two or more of the signatory States or into any stream any part of which flows from any portion of one signatory State through any portion of another signatory State. Any such order or orders may prescribe the date on or before which such discharge shall be wholly or partially discontinued, modified or treated or otherwise disposed of. The Commission shall give reasonable notice of the time and place of the hearing to the municipality, corporation or other entity against which such order is proposed. No such order shall go into effect unless and until it receives the assent of at least a majority of the commissioners from each of not less than a majority of the signatory states; and no such order upon a municipality, corporation, person or entity in any State shall go into effect unless and until it receives the assent of not less than a majority of the commissioners from such State.

It shall be the duty of the municipality, corporation, person or other entity to comply with any such order issued against it or him by the Commission, and any court of general jurisdiction or any United States district court in any of the signatory States shall have the jurisdiction, by mandamus, injunction, specific performance or other form of remedy, to enforce any such order against any municipality, corporation or other entity domiciled or located within such State or whose discharge of the waste takes place within or adjoining such State, or against any employee, department or subdivision of such municipality, corporation, person or other entity; provided, however, such court may review the order and affirm, reverse or modify the same upon any of the grounds customarily applicable in proceedings for court review of administrative decisions. The Commission or, at its request, the Attorney-General or other law enforcing official, shall have power to institute in such court any action for the enforcement of such order.

ARTICLE X

The signatory States agree to appropriate for the salaries, office and other administrative expenses, their proper proportion of the annual budget as determined by the Commission and approved by the Governors of the signatory States, one-half of such amount to be prorated among the several States in proportion to their population within the District at the last preceding federal census, the other half to be prorated in proportion to their land area within the District.

ARTICLE XI

This compact shall become effective upon ratification by the legislatures of a majority of the States located within the District and upon approval by the Congress of the United States; and shall become effective as to any additional States signing thereafter at the time of such signing.

The Commonwealth of Kentucky consents that the State of Virginia may become a party to and a signatory state of the aforesaid compact as fully as if it had been expressly named therein.

Compiler’s Notes.

This section was formerly compiled as KRS 220.550 and 224.190 .

NOTES TO DECISIONS

1.Protection of Public Health.

City could, by the issuance of general obligation bonds if the voters approved, lawfully make an additional capital investment in sewer system for the purpose of the protection of the public health of its citizens, using proceeds for construction of a plant and facilities for treatment and disposal of sewage before its discharge into the Ohio River, since legal title to the sewer system had remained in the city and its power to finance its improvement had been left unimpaired and, though the disposal plant would serve property beyond city’s boundaries, the entire system served the health of its citizens. Johnson v. Louisville, 261 S.W.2d 429, 1953 Ky. LEXIS 1014 ( Ky. 1953 ).

224.18-780. Tennessee River Basin Water Pollution Control Compact.

The Tennessee River Basin Water Pollution Control Compact is enacted and entered into by the Commonwealth of Kentucky as a party and is of full force and effect as between the Commonwealth of Kentucky and any other state of the Tennessee River Basin Water Pollution Control District that has entered into the compact. The compact is as follows:

History. Enact. Acts 1958, ch. 44, § 1.

ARTICLE I

The purpose of this Compact is to promote effective control and reduction of pollution in the waters of the Tennessee River Basin through increased cooperation of the states of the Basin, coordination of pollution control activities and programs in the Basin, and the establishment of a joint interstate commission to assist in these efforts.

ARTICLE II

The party states hereby create the “Tennessee River Basin Water Pollution Control Commission,” hereinafter referred to as the “Commission,” which shall be an agency of each party state with the powers and duties set forth herein, and such others as shall be conferred upon it by the party states or by the Congress of the United States concurred in by the party states.

ARTICLE III

  1. The party states hereby create the “Tennessee River Basin Water Pollution Control District,” hereinafter called the “District,” which consists of the area drained by the Tennessee River and its tributaries.
  2. From time to time the Commission may conduct surveys of the Basin, study the pollution problems of the Basin, and make comprehensive reports concerning the prevention or reduction of water pollution therein. The Commission may draft and recommend to the parties hereto suggested legislation dealing with the pollution of waters within the Basin or any portion thereof. Upon request of a state water pollution control agency, and in a manner agreed upon by such agency and the Commission, the Commission shall render advice concerning the various governments, communities, municipalities, persons, corporations or other entities with regard to particular problems connected with the pollution of waters. The Commission shall present to the appropriate officials of any government or agency thereof its recommendations relating to enactments to be made by any legislature in furthering the intents and purposes of this Article. The Commission, upon request of a member state or upon its own instance may, after proper study, and after conducting public hearings, recommend minimum standards of water quality to be followed in the several areas of the District.

ARTICLE IV

The Commission shall consist of three Commissioners from each state, each of whom shall be a resident voter of such state. The Commissioners shall be chosen in the manner and for the terms provided by the laws of the state from which they are appointed, and each Commissioner may be removed or suspended from office as provided by the law of the state from which he is appointed.

ARTICLE V

  1. The Commission shall elect annually from its members a Chairman and a Vice Chairman to serve at its pleasure. It shall adopt a seal and suitable bylaws for its management and control. The Commission is hereby authorized to adopt, prescribe and promulgate rules and regulations for administering and enforcing all provisions of this Compact. It may maintain one or more offices for the transaction of its business. Meetings shall be held at least once each year. It may determine duties, qualifications and compensation for and appoint such employees and consultants as may be necessary and remove or replace them.
  2. The Commission shall not compensate the Commissioners for their services but shall pay their actual expenses incurred in and incidental to the performance of their duties.
  3. The Commission may acquire, by gift or otherwise, and may hold and dispose of such real and personal property as may be appropriate to the performance of its functions. In the event of sale of real property, proceeds may be distributed among the several party states, each state’s share being computed in a ratio to its contributions; and in the event of dissolution of the Commission, the property and assets shall be disposed of and proceeds distributed in a like manner.
  4. Each Commissioner shall have one vote. One or more Commissioners from a majority of the party states shall constitute a quorum for the transaction of business, but no action of the Commission imposing any obligation on any party state or any municipality, person, corporation or other entity therein shall be binding unless a majority of all of the members from such party state shall have voted in favor thereof. The Commission shall keep accurate accounts of all receipts and disbursements, and shall submit to the Governor and the legislature of each party state an annual report concerning its activities, and shall make recommendations for any legislative, executive or administrative action deemed advisable.
  5. The Commission shall at the proper time submit to the Governor of each party state for his approval an estimate of its proposed expenditures. The Commission shall subsequently adopt a budget and submit appropriation requests to the party states in accordance with the laws and procedures of such states.
  6. The Commission shall not pledge the credit of any of the party states. The Commission may meet any of its obligations in whole or in part with funds available to it, from gifts, grants, appropriations or otherwise, provided that the Commission takes specific action setting aside such funds prior to the incurring of any obligation to be met in whole or in part in this manner. Except where the Commission makes use of funds already available to it, the Commission shall not incur any obligations prior to the making of appropriations adequate to meet the same.
  7. The accounts of the Commission shall be open at any reasonable time to the inspection of such representatives of the respective party states as may be duly constituted for that purpose. All receipts and disbursements of funds handled by the Commission shall be audited yearly by a qualified public accountant, and the report of the audit shall be included in and become a part of the annual report of the Commission. The Commission shall appoint an Executive Director. The Commission shall also appoint a Treasurer who may be a member of the Commission. The Executive Director shall be custodian of the records of the Commission with authority to attest to and certify such records and copies thereof under the seal of the Commission. The Commission shall require bonds of its Executive Director and Treasurer in the amount of at least twenty-five percent (25%) of the annual budget of the Commission.

ARTICLE VI

Each of the Commission’s budgets of estimated expenditures shall contain specific recommendations of the amount or amounts to be appropriated by each of the party states. In determining these amounts, the Commission shall prorate one-half (1/2) of its budget among the several states in proportion to their land area within the District, and shall prorate the other half among the several states in proportion to their population within the District at the last preceding Federal census.

ARTICLE VII

  1. It is recognized, owing to such variable factors as location, size, character and flow and the many varied uses of the waters subject to the terms of this Compact, that no single standard of sewage and waste treatment and no single standard of quality of receiving waters is practical and that the degree of treatment of sewage and industrial wastes should take into account the classification of the receiving waters according to present and proposed highest use, such as for drinking water supply, industrial and agricultural uses, bathing and other recreational purposes, maintenance and propagation of fish life, navigation and disposal of wastes.
  2. The Commission may establish reasonable physical, chemical and bacteriological standards of water quality satisfactory for various classifications of use. It is agreed that each of the signatory states through appropriate agencies will prepare a classification of its interstate waters in the District in entirety or by portions according to present and proposed highest use, and for this purpose technical experts employed by appropriate state water pollution control agencies are authorized to confer on questions relating to classification of interstate waters affecting two (2) or more states. Each signatory state agrees to submit its classification of its interstate waters to the Commission for approval. It is agreed that after such approval, all signatory states through their appropriate state water pollution control agencies will work to establish programs of treatment of sewage and industrial wastes which will meet standards established by the Commission for classified waters. The Commission may from time to time make such changes in definitions of classifications and in standards as may be required by changed conditions or as may be necessary for uniformity and in a manner similar to that in which these standards and classifications were originally established.

ARTICLE VIII

  1. A state pollution control agency of any party state may certify to the Commission an alleged violation of the Commission’s standards of quality of water entering said state. Upon such certification the Commission may call a hearing at which the appropriate state pollution agencies shall be represented. If the Commission finds a violation has occurred, is occurring or is likely to recur, it shall make recommendations as to the manner of abatement of the pollution to the appropriate water pollution control agency of the party state within which the violation has occurred, is occurring or is likely to recur. In the event that Commission recommendations made pursuant to the preceding provisions of this Article do not result in compliance within a reasonable time, the Commission may, after such further investigation if any as is deemed necessary and proper and after a hearing held in the state where a violation occurs or has occurred, issue an order or orders upon any municipality, person, corporation or other entity within said party state violating provisions of this Compact by discharging sewerage or industrial wastes into the waters of the District which flow through, into or border upon any party state. Such order or orders may prescribe the date on or before which such discharge shall be wholly or partially discontinued, modified or treated or otherwise disposed of. The Commission shall give reasonable and proper notice in writing of the time and place of the hearing to the municipality, person, corporation or other entity against which such order is proposed except that when the Commission shall find that a public health emergency exists, it may issue such an order pending hearing. In all such instances, the hearing shall be promptly held and the order shall be withdrawn, modified or made permanent within thirty days after hearing. No order prescribing the date on or before which such discharge shall be wholly or partially discontinued, modified or treated or otherwise disposed of shall go into effect upon a municipality, person, corporation or other entity in any state unless and until it receives the approval of a majority of the Commissioners from each of not less than a majority of the party states, provided that such order receives the assent of not less than a majority of the Commissioners from such state.
  2. It shall be the duty of the municipality, person, corporation or other entity within a party state to comply with any such order against it or him by the Commission, and any court of competent jurisdiction in any of the party states shall have jurisdiction, by mandamus, injunction, specific performance or other form of remedy, to enforce any such order against any municipality, person, corporation or other entity domiciled, located or doing business within such state; provided, however, such court may review the order and affirm, reverse or modify the same in any appropriate proceeding brought and upon any of the grounds customarily applicable in proceedings for court review of administrative decisions. The Commission or, at its request, the Attorney General or other law enforcing official of the appropriate state shall have power to institute in such court any action for the enforcement of such order.

ARTICLE IX

Nothing in this Compact shall be construed to limit the powers of any party state, or to repeal or prevent the enactment of any legislation, or the enforcement of any requirement by any party state, imposing any additional conditions and restrictions to further reduce or prevent the pollution of waters within its jurisdiction.

ARTICLE X

  1. Nothing contained in this Compact shall be construed so as to conflict with any provision of the Ohio River Valley Water Sanitation Compact or to impose obligations on any state inconsistent with those which it has undertaken or may undertake by virtue of its membership in said Compact; provided that nothing contained in this Article shall be deemed to limit the Commission’s power to set higher standards for the waters of the Tennessee River Basin Water Pollution Control District or any portion thereof than those required for the Ohio River Valley Water Sanitation District.
  2. Nothing contained in this Compact shall be deemed to give the Commission any regulatory power or jurisdiction over any aspect of pollution abatement or control within the District unless existing or future pollution of such waters does or is likely to affect adversely the quality of water flowing among, between, into or through the territory of more than one party state.

ARTICLE XI

Any two (2) or more of the party states by legislative action may enter into supplementary agreements for further regulation and abatement of water pollution in other areas within the party states and for the establishment of common or joint services or facilities for such purpose and designate the Commission to act as their joint agency in regard thereto. Except in those cases where all member states join in such supplementary agreement and designation, the representatives in the Commission of any group of such designating states shall constitute a separate section of the Commission for the performance of the function or functions so designated and with such voting rights for these purposes as may be stipulated in such agreement; provided that, if any additional expense is involved, the member states so acting shall appropriate the necessary funds for this purpose. No supplementary agreement shall be valid to the extent that it conflicts with the purposes of this Compact and the creation of such a section as a joint agency shall not affect the privileges, powers, responsibilities or duties of the member states participating therein as embodied in the other articles of this Compact.

ARTICLE XII

This Compact shall enter into force and become effective and binding when it has been enacted by the legislature of Tennessee and by the legislatures of any one or more of the states of Alabama, Georgia, Kentucky, Mississippi, North Carolina and Virginia and upon approval by the Congress of the United States and thereafter shall enter into force and become effective and binding as to any other of said states when enacted by the legislature thereof.

ARTICLE XIII

This Compact shall continue in force and remain binding upon each party state until renounced by act of the legislature of such state, in such form and manner as it may choose; provided that such renunciation shall not become effective until six (6) months after the effective date of the action taken by the legislature. Notice of such renunciation shall be given to the other party states by the Secretary of State of the party state so renouncing upon passage of the act.

ARTICLE XIV

The provisions of this Compact or of agreements thereunder shall be severable and if any phrase, clause, sentence or provision of this Compact, or such agreement, is declared to be contrary to the Constitution of any participating state or of the United States or the applicability thereof to any state, agency, person or circumstance is held invalid, the constitutionality of the remainder of this Compact or of any agreement thereunder and the applicability thereof to any state, agency, person or circumstance shall not be affected thereby, provided further that if this Compact or any agreement thereunder shall be held contrary to the Constitution of the United States or of any state participating therein, the Compact or any agreement thereunder shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters. It is the legislative intent that the provisions of this Compact shall be reasonably and liberally construed.

Compiler’s Notes.

This section was formerly compiled as KRS 220.551 and 224.195 .

224.18-785. Supplementary agreements with Tennessee.

The Governor is authorized to enter into supplementary agreements with the State of Tennessee for the regulation and abatement of water pollution in areas and river basins common to the Commonwealth of Kentucky and the State of Tennessee, and may take such supplementary action as may be necessary to make any such supplementary agreement effective as between the Commonwealth of Kentucky and the State of Tennessee.

History. Enact. Acts 1958, ch. 44, § 4.

Compiler’s Notes.

This section was formerly compiled as KRS 220.552 and 224.200 .

Waste

224.18-900. Interstate compacts on solid waste management.

The Governor is authorized to negotiate and enter into compacts with other states relating to the management of solid waste including reduction, collection, transportation, and disposal. Such compacts must be ratified by the General Assembly.

History. Enact. Acts 1991 (lst Ex. Sess.), ch. 12, § 19, effective February 26, 1991.

Compiler’s Notes.

This section was formerly compiled as KRS 224.8865 .

SUBCHAPTER 20. Air Quality

224.20-050. Fee for administration of air quality program.

  1. The cabinet, or an air pollution control district created pursuant to KRS Chapters 77 and 224, may promulgate regulations adopting fees for the cost of administering the air quality program authorized by this chapter, as mandated under the Clean Air Act Amendments of 1990 (Public Law 101-549, as amended). Any person who fails to pay a fee as required by the administrative regulations adopted pursuant to this section shall pay an additional fee equal to fifty percent (50%) of the fee amount, plus interest on the fee amount computed in accordance with Section 6621(a)(2) of the Internal Revenue Code of 1986 (Public Law 99-499, as amended, relating to computation of interest on underpayment of federal taxes).
  2. The cabinet may use the fee structure implemented by administrative regulations to generate funds to finance the cabinet’s air quality program. The cabinet’s fee structure shall not generate moneys in excess of the amount authorized in the enacted budget bill.
  3. The emissions fees shall be assessed on each permitted source of regulated air pollutants emitted in the preceding year.
  4. Moneys generated by a fee structure shall be deposited into a separate and distinct interest-bearing account and invested in accordance with administrative regulations promulgated by the State Investment Commission pursuant to KRS 42.525 . Moneys not expended at the end of a fiscal year shall be carried forward to the next fiscal year. Any available balance shall be credited against the emissions fee required in the succeeding fiscal year, and shall be credited to each source according to the proportion of the total of all emission fees which were paid by that source in a timely manner.

History. Enact. Acts 1990, ch. 471, § 6, effective July 13, 1990; 1994, ch. 162, § 1, effective July 15, 1994; 2019 ch. 14, § 1, effective June 27, 2019.

Compiler’s Notes.

This section was formerly compiled as KRS 224.1167 .

Title V of the Clean Air Act Amendments of 1990 (Public Law 101-549, as amended) and Section 6621(a)(2) of the Internal Revenue Code of 1986 (Public Law 99-499 as amended), referred to in this section, are compiled as 42 USCS § 7661 et seq. and 26 USCS § 6621(a)(2), respectively.

NOTES TO DECISIONS

Cited:

Kentucky River Auth. v. City of Danville, 932 S.W.2d 374, 1996 Ky. App. LEXIS 112 (Ky. Ct. App. 1996), cert. denied, 520 U.S. 1186, 117 S. Ct. 1469, 137 L. Ed. 2d 682, 1997 U.S. LEXIS 2550, 65 U.S.L.W. 3711 (1997).

Research References and Practice Aids

Northern Kentucky Law Review.

Perkins, Petroleum Storage Regulation in Kentucky, 22 N. Ky. L. Rev. 59 (1995).

Air Pollution Control

224.20-100. Finding as to necessity for act.

The Kentucky General Assembly hereby finds that it is necessary to the health and welfare of the citizens of Kentucky that there be maintained at all times both now and in the future a reasonable degree of purity of the air resources of this Commonwealth consistent with maximum employment and full industrial development necessary for the protection of the public health, the general welfare, and the property and people in this Commonwealth; and foster the comfort and convenience of its inhabitants and facilitate the enjoyment of the natural attractions of the state.

History. Enact. Acts 1966, ch. 22, § 1A, effective June 16, 1966.

Compiler’s Notes.

This section was formerly compiled as KRS 224.320 .

Research References and Practice Aids

Kentucky Bench & Bar.

Stockum, The Impact and Regulation of Air Toxics in Kentucky, Volume 75, No. 6, November 2011, Ky. Bench & Bar 7.

224.20-110. Air pollution in violation of standards and rules prohibited — Cabinet to promulgate administrative regulations to implement federal statute relating to alternative emission limitations.

  1. No person shall, directly or indirectly, emit into or discharge into the air under the jurisdiction of the Commonwealth, or cause, permit, or allow to be emitted or discharged into such air any contaminants as provided for in subsection (1) of KRS 224.1-010 that shall cause or contribute to the pollution of the air of the Commonwealth in contravention of the emission standards or the ambient air standards adopted by the cabinet, or in contravention of any of the rules, regulations, or orders of the cabinet, or in contravention of any of the provisions of this chapter.
  2. For the purpose of fostering willing compliance with the emission standards and the ambient air standards adopted by the cabinet, the cabinet shall promulgate and implement administrative regulations which give effect to Section 7412(i)(5) of Title 42, United States Code, relating to alternative emission limitations allowed for early reduction of emissions. The program established by this subsection shall be conducted strictly in accordance with the federal law.

History. Enact. Acts 1966, ch. 22, § 5, effective June 16, 1966; 1972 (1st Ex. Sess.), ch. 3, § 9, effective January 1, 1973; 1992, ch. 131, § 2, effective July 14, 1992.

Compiler’s Notes.

This section was formerly compiled as KRS 224.330 .

This section is set out above to reflect a correction to the section reference appearing in subsection (1) from 224.01-010 to 224.1-010 due to renumbering by the state reviser effective in 2013.

NOTES TO DECISIONS

1.Jurisdiction.

Federal District Court did not have jurisdiction over a pendent claim brought pursuant to KRS 224.20-110 against a welding wire manufacturer in an action brought under 42 USCS § 7604, the citizen suit provision of the Clean Air Act (CAA). KRS 224.01-050 gives exclusive jurisdiction to the Circuit Court of the county where the alleged violation occurred. Cornett v. Welding Alloys (USA), Inc., 2003 U.S. Dist. LEXIS 27259 (E.D. Ky. Nov. 26, 2003).

Opinions of Attorney General.

KRS 224.01-010 [renumbered as KRS 224.1-010 ] and this section do not serve as specific waivers of the Commonwealth’s immunity, but rather refer to the duty of state agencies to comply with the state air pollution standards and regulations. OAG 75-513 .

Research References and Practice Aids

Kentucky Law Journal.

Woodroof, Pollution Control, Present and Potential: A Jurisprudential Evaluation of Cost Allocation as an Alternative, 61 Ky. L.J. 22 (1972).

Kentucky Law Survey, Bratt and Brown, Environmental Law, 70 Ky. L.J. 455 (1981-82).

224.20-120. Considerations in fixing standards.

In exercising the power conferred upon it by this chapter the Energy and Environment Cabinet shall give due recognition to the policy as heretofore expressed in KRS 224.20-100 . The cabinet, in fixing standards, shall require the use of all available, practical, and reasonable methods to prevent and control air pollution in the Commonwealth of Kentucky. It shall give due recognition to the quantity of characteristics of air contaminants or the duration of their presence in the atmosphere. It shall take into consideration in this connection such factors, among others, found by it to be proper and just, existing physical conditions, public benefit, that the degree of conformance therewith that may be proper as to an essentially residential area of the state may not be proper as to a highly industrial area of the state, and, further, the relationship between the intensity and composition of air pollution and the health of the public and damage to or interference with enjoyment of property. It shall give reasonable consideration to the interests of all parties concerned.

History. Enact. Acts 1966, ch. 22, § 6, effective June 16, 1966; 1970, ch. 92, § 75, effective June 18, 1970; 1972 (1st Ex. Sess.), ch. 3, § 48; 1974, ch. 74, Art. III, § 13(2), effective June 21, 1974; 2010, ch. 24, § 362, effective July 15, 2010.

Compiler’s Notes.

This section was formerly compiled as KRS 224.340 .

Research References and Practice Aids

Kentucky Bench & Bar.

Stockum, The Impact and Regulation of Air Toxics in Kentucky, Volume 75, No. 6, November 2011, Ky. Bench & Bar 7.

Kentucky Law Journal.

Kentucky Law Survey, Bratt and Brown, Environmental Law, 70 Ky. L.J. 455 (1981-82).

224.20-125. Prohibition against promulgating administrative regulations or imposing permit conditions based on Kyoto Protocol without state or federal legislation.

  1. The cabinet shall not promulgate administrative regulations or impose permit conditions on the emission of carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, or sulfur hexafluoride pursuant to the Kyoto Protocol for the purpose of reducing global warming until authorized by the General Assembly or by federal statute. The cabinet may promulgate administrative regulations or impose permit conditions on the emission of carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, or sulfur hexafluoride for any other reason authorized by this chapter or required under federal statute or administrative regulation as long as the administrative regulations or permit conditions are not promulgated or imposed pursuant to the Kyoto Protocol.
  2. Nothing in this section shall be construed to limit or to impede state, local, or private participation in voluntary initiatives to reduce emissions of greenhouse gases, such as the United States Environmental Protection Agency’s Green Lights program and the United States Department of Energy’s climate change program.

History. Enact. Acts 1998, ch. 470, § 1, effective July 15, 1998.

224.20-130. Concurrent jurisdiction with local district — Effect.

  1. Each county which pursuant to the provisions of KRS Chapter 77 has established or will establish a local air pollution control program, shall submit a synopsis of said program together with such standards and procedures as are enacted by regulations to the cabinet for approval within a period of ninety (90) days from the enactment hereof, or a period of ninety (90) days of the establishment of said local program.
  2. If, after review by the cabinet, and a public hearing held in the county activating a district, the cabinet determines that the air pollution control district has adopted standards and procedures and has the necessary staff to implement the program in a manner consistent with the objectives of this chapter, concurrent jurisdiction may be granted the air pollution control district for the administration and enforcement of the aforesaid statutes. Except for the limit on authority established by KRS 77.115(3), the air pollution control district shall adopt no regulation or standard less stringent than a regulation or standard adopted by the cabinet, and shall submit prepared regulations and standards to the cabinet for prior concurrence. Periodic reports shall be made to the cabinet and to the commission as shall be provided for by regulation. If the cabinet shall determine, after hearing with notice, that a district program is not being administered in accordance with the statutes and regulations of the cabinet or the district, the grant of authority may be suspended, revoked, or modified by order of the cabinet. The enactment or enforcement of a regulation by an air pollution control district that finds the need for and requires the implementation of a vehicle exhaust testing program, if the program is not limited to prohibiting the emissions of, regulating, or controlling only mobile sources of air pollutants regulated under the state program established in accordance with KRS 224.20-710 to 224.20-765 , shall cause an automatic revocation of an existing grant of authority or an automatic denial of a requested grant of authority.
  3. This provision shall in no way diminish the authority of the cabinet to administer and enforce the provisions of this chapter.
  4. The cabinet shall be empowered to enforce any and all regulations or standards in any district when concurrent jurisdiction is granted.
  5. When enforcement actions are taken by the district, the local Commonwealth’s, county, and city prosecuting attorneys, instead of the Attorney General shall prosecute such actions.

History. Enact. Acts 1966, ch. 22, § 14, effective June 16, 1966; 1970, ch. 153, § 1, effective June 18, 1970; 1972 (1st Ex. Sess.), ch. 3, § 49, effective January 1, 1973; 2000, ch. 136, § 3, effective July 14, 2000.

Compiler’s Notes.

This section was formerly compiled as KRS 224.450 .

Legislative Research Commission Note.

(7/14/2000). The reference to KRS 77.115(3) in subsection (2) of this statute appeared in 2000 Ky. Acts ch. 136, sec. 3, as “subsection (1) of Section 3 of this Act.” The drafter’s version had this reference as “Section 1(3) of this Act,” but this was inadvertently transposed in the review process to “subsection (1) of Section 3 of this Act.” It is manifestly clear from the text of Acts Chapter 136 that the reference intended was to “subsection (3) of Section 1” of the Act, which the drafter’s version confirms. For that reason, under KRS 7.136(1)(h), the reference has been codified as “KRS 77.115(3)” rather than as “subsection (3) of this section.”

Opinions of Attorney General.

The ambient air standards adopted by the Louisville-Jefferson County Air Pollution Control District were adopted pursuant to ceded jurisdiction under this section, and the 1970 amendment to this section in no way invalidated those actions properly taken by them in adopting these standards. OAG 70-610 .

The State Air Pollution Control Commission (now Energy and Environment Cabinet) does not have “veto power” over a district’s properly adopted program that is more stringent in its application and requirements than the State Air Pollution Control Commission standards and regulations. OAG 70-610 .

The term “prior concurrence,” as used in subsection (2) of this section, means that any ambient air standards, implementation plans, or emission regulations that are adopted by a district after the amendment to subsection (2) must be submitted to the State Air Pollution Control Commission (now Energy and Environment Cabinet) for a determination of whether such standards, regulations, etc., meet the “floor standards” which have been adopted by the State Air Pollution Control Commission (now Energy and Environment Cabinet). OAG 70-610 .

Under subsection (2) of this section, although a public hearing is not absolutely necessary, there is no prohibition against having such a hearing. OAG 70-610 .

There is no requirement in the statutes that prior to the Department of Environmental Protection (now Energy and Environment Cabinet) taking action in a district the district’s concurrent jurisdiction be first withdrawn. OAG 72-779 .

This section contemplates that before a local air pollution control district shall have concurrent jurisdiction to enforce regulations adopted by the Department for Natural Resources and Environmental Protection (now Energy and Environment Cabinet) pursuant to this section it shall have incorporated a similar regulation into its own program. OAG 74-573 .

Generally a local air pollution control district cannot enforce its own regulations against state agencies, but if the Department for Natural Resources and Environmental Protection (now Energy and Environment Cabinet) grants concurrent jurisdiction to a local air pollution control district pursuant to this section for the enforcement of the department’s (now cabinet) regulations then the local district has been empowered to enforce the state law. OAG 74-573 .

Once concurrent jurisdiction has been granted to a local district, there is no question that a hearing with notice is necessary before that district’s jurisdiction is suspended, revoked or modified and the Department for Natural Resources and Environmental Protection (now Energy and Environment Cabinet) is to determine at that hearing that the district program is not being administered in accordance with the statutes and regulations of the department or the district before the district’s jurisdictional status can be changed. OAG 75-513 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Bratt and Brown, Environmental Law, 70 Ky. L.J. 455 (1981-82).

224.20-140. Legislative findings and declarations concerning the adoption of carbon dioxide emission reduction performance standards for electric generating units.

The Kentucky General Assembly hereby finds and declares that:

  1. The United States Environmental Protection Agency intends to adopt guidelines to reduce carbon dioxide emissions from existing fossil fuel-fired electric generating units under 42 U.S.C. sec. 7411(d) ;
  2. The United States Congress charges states, rather than the United States Environmental Protection Agency, with establishing standards of performance under 42 U.S.C. sec. 7411(d) for existing stationary sources, including fossil fuel-fired electric generating units, as a means of furthering the scheme of cooperative federalism under the federal Clean Air Act and with ensuring that the states have the primary role in managing their own economic and environmental resources; and
  3. Providing reliable and affordable electricity through using various energy feedstocks for electric generation, including coal, natural gas, nuclear, and renewable resources, as well as using energy efficiently will provide economic and environmental benefits for the citizens of the Commonwealth of Kentucky.

History. Enact. Acts 2014, ch. 18, § 1, effective July 15, 2014.

224.20-141. Establishment of separate performance standards for existing coal-fired and natural gas-fired electric generating units.

  1. In developing and implementing any plan to control emissions of carbon dioxide, the cabinet shall establish separate standards of performance for carbon dioxide emissions in accordance with:
    1. KRS 224.20-142 for existing coal-fired electric generating units; and
    2. KRS 224.20-143 for existing natural gas-fired electric generating units.
  2. Performance standards shall be adjusted on a case-by-case basis in accordance with KRS 224.20-144 and shall be implemented in accordance with KRS 224.20-146 .

History. Enact. Acts 2014, ch. 18, § 2, effective July 15, 2014.

224.20-142. Basis for carbon dioxide emission reduction performance standards for existing coal-fired electric generating units.

Except for adjustments of the performance standard on a case-by-case basis under KRS 224.20-144 , the performance standard that shall be established for existing coal-fired electric generating units shall be based on the following:

  1. The best system of emission reduction which has been adequately demonstrated for coal-fired electric generating units subject to the performance standard. Best system of emission reduction shall take into account the cost of:
    1. Achieving the emission reduction;
    2. Impacting non-air-quality health and the environment; and
    3. Maintaining energy requirements needed to serve the load on the electric generating unit;
  2. Reductions in emissions of carbon dioxide that can reasonably be achieved through measures undertaken at each coal-fired electric generating unit; and
  3. Efficiency and other measures that can be undertaken at each coal-fired electric generating unit to reduce its carbon dioxide emissions without doing the following:
    1. Switching from coal to other fuels;
    2. Co-firing other fuels with coal; or
    3. Limiting the utilization of the electric generating unit.

History. Enact. Acts 2014, ch. 18, § 3, effective July 15, 2014.

224.20-143. Bases for carbon dioxide emission reduction performance standards for existing natural gas-fired electric generating units.

Except for adjustments of the performance standard on a case-by-case basis under KRS 224.20-144 , the performance standard that shall be established for existing gas-fired electric generating units shall be based on the following:

  1. The best system of emission reduction which has been adequately demonstrated for gas-fired electric generating units subject to the performance standard. Best system of emission reduction shall take into account the cost of:
    1. Achieving the emission reduction;
    2. Impacting non-air-quality health and the environment; and
    3. Maintaining energy requirements needed to serve the load of the electric generating unit;
  2. Reductions in emissions of carbon dioxide that can reasonably be achieved through measures undertaken at each gas-fired electric generating unit; and
  3. Efficiency and other measures that can be undertaken at the unit to reduce carbon dioxide emissions from the unit without switching from natural gas to other fuels that emit less carbon dioxide than natural gas or by limiting the utilization of the electric generating unit.

History. Enact. Acts 2014, ch. 18, § 4, effective July 15, 2014.

224.20-144. Bases for carbon dioxide emission reduction performance standards for existing fossil fuel-fired electric generating units.

In establishing a performance standard for any existing fossil fuel-fired electric generating unit, the cabinet shall consider, in all cases, whether to adopt less stringent performance standards or longer compliance schedules for those units than are established in applicable federal rules or guidelines. The decision to adopt a less stringent performance standard or longer compliance schedules shall be based on the following:

  1. Consumer impacts, including any disproportionate energy price increases on lower-income populations;
  2. Unreasonable costs of reducing emissions of carbon dioxide resulting from the age, location, or basic process design of the electric generating unit;
  3. Physical difficulties with or the impossibility of implementing emission reduction measures for carbon dioxide;
  4. The absolute cost of applying the performance standard to the electric generating unit;
  5. The expected remaining useful life of the electric generating unit;
  6. The economic impacts of closing the electric generating unit, including expected job losses, if the unit is unable to comply with the performance standard; and
  7. Any other factors specific to the electric generating unit that make application of a less stringent performance standard or longer compliance schedule more reasonable.

History. Enact. Acts 2014, ch. 18, § 5, effective July 15, 2014.

224.20-145. Conditions under which cabinet may propose or submit a plan establishing carbon dioxide emission reduction performance standards for existing fossil fuel-fired electric, generating units — Administrative regulations — Conditions under which performance standards plan is legal nullity.

  1. The cabinet shall not propose or submit to the United States Environmental Protection Agency any plan establishing performance standards for existing fossil fuel-fired electric generating units unless the plan is:
    1. Consistent with KRS 224.20-140 to 224.20-146 ; and
    2. Prepared in consultation with the Kentucky Public Service Commission to ensure that the plan:
      1. Minimizes the impacts on current and future industrial, commercial, and residential consumers; and
      2. Does not threaten the affordability of Kentucky’s rates or the reliability of electricity service.
  2. The cabinet shall promulgate administrative regulations for the establishment and implementation of any state plan to regulate emissions of carbon dioxide emissions from existing fossil fuel-fired electric generating units under 42 U.S.C. sec. 7411(d) .
  3. Any state plan established by the cabinet to regulate emissions of carbon dioxide pursuant to KRS 224.20-140 to 224.20-146 shall have no legal effect if:
    1. The United States Environmental Protection Agency:
      1. Fails to issue federal rules or guidelines for reducing carbon dioxide emissions from existing fossil fuel-fired electric generating units under 42 U.S.C. sec. 7411(d) ; or
      2. Withdraws its federal rules or guidelines for reducing carbon dioxide emissions from existing fossil fuel-fired electric generating units; or
    2. A court of competent jurisdiction invalidates the United States Environmental Protection Agency’s federal rules or guidelines issued to regulate emissions of carbon dioxide from existing fossil fuel-fired electric generating units.

History. Enact. Acts 2014, ch. 18, § 7, effective July 15, 2014.

224.20-146. Cabinet may permit flexibility in compliance with performance standards.

To the maximum extent permissible, the cabinet may develop a method for electric generating units to implement the performance standards that gives the electric generating units flexibility to comply with the performance standards.

History. Enact. Acts 2014, ch. 18, § 6, effective July 15, 2014.

224.20-150. Permits for air contaminant sources that treat certain soils — Fiscal court approval.

  1. Any air contaminant source that thermally treats soils that have been contaminated by releases of petroleum from underground tanks at commercial or industrial facilities where the soils are not otherwise regulated as hazardous waste shall be subject to this section, unless it accepts only those soils it has contaminated or those soils contaminated by its wholly-owned subsidiary. Any mobile unit for thermal treatment of petroleum contaminated soils where the unit processes the soils at, or in the immediate proximity, of the site of the soil contamination and which does not receive soils from other contaminated sites or facilities shall not be subject to this section.
  2. The cabinet shall not issue a permit to construct or operate a new air contaminant source subject to this section unless the fiscal court in which that source will be located approves, after public notice and a public hearing, its construction or operation. The cabinet, upon request, shall conduct a public hearing at the same time the fiscal court conducts its public hearing. The cabinet and fiscal court public hearings shall be held simultaneously. A fiscal court shall not disapprove operation of a source if it has previously approved its construction. The fiscal court shall consider the social and economic impacts of that source on the affected county, including changes in property values, community perception, and other psychic costs; costs and availability of public service facilities and improvements required to support the source and to protect the public health, safety, and the environment; and the relationship of the source to local planning and existing development.
  3. After a preliminary determination has been made concerning the issuance or denial of a permit authorizing the construction or reconstruction of an air contaminant source subject to this section or the modification of a permit for an air contaminant source subject to this section, when modification will cause an increase in the potential to emit one hundred (100) tons per year or more of any pollutant or any significant increase in emissions of a toxic air pollutant, the applicant shall notify the public by prominent advertisement in newspapers of general circulation in the locality in which the source will be located or modified of the application and preliminary determination with respect to the application. The cabinet shall send notice of its preliminary determination to the applicant, local governmental, land use bodies and local air pollution agencies, and persons on a mailing list that shall be maintained of interested persons requesting to receive the notices.
  4. The cabinet shall provide a thirty (30) day comment period for receipt of comments pertaining to the preliminary determination with respect to applications to construct, reconstruct, or modify an air contaminant source subject to this section, and shall provide a detailed response to all significant comments when the final agency determination is made with respect to an application.

History. Enact. Acts 1992, ch. 223, § 1, effective April 6, 1992.

Asbestos Control

224.20-300. Purpose.

For the purpose of adopting the Asbestos Hazard Emergency Response Act, called AHERA, Public Law (99-519), as amended, the cabinet may develop, adopt, and maintain a comprehensive statewide asbestos assessment and response program and an accreditation program that shall replicate the federal environmental protection agency model plan issued April 30, 1987 and the provisions of Title 40 of the Code of Federal Regulations, Part 763, Subpart E. The programs shall include but not be limited to:

  1. Identifying and controlling asbestos hazards in public and private schools, grades K-12;
  2. Providing for accreditation of asbestos inspectors, management planners, abatement project designers, abatement contractors, supervisors, and abatement workers;
  3. Reviewing training courses to determine if they are approvable under the criteria established in the April 30, 1987 model plan and any other criteria adopted by the cabinet; and
  4. Reviewing school asbestos management plans and inspecting school buildings for compliance with this section.

History. Enact. Acts 1988, ch. 413, § 1, effective April 8, 1988; 1992, ch. 204, § 1, effective July 14, 1992; 2006, ch. 125, § 1, effective July 12, 2006.

Compiler’s Notes.

This section was formerly compiled as KRS 224.550 .

The Asbestos Hazard Emergency Response Act (P.L. 99-519), referred to in the introductory paragraph of this section, is compiled primarily as 15 USCS § 2641 et seq.

224.20-310. Fee.

The cabinet may charge a fee necessary to recover all costs incurred by the implementation and operation of the asbestos programs required under KRS 224.20-300 .

History. Enact. Acts 1988, ch. 413, § 2, effective April 8, 1988; 1992, ch. 204, § 2, effective July 14, 1992.

Compiler’s Notes.

This section was formerly compiled as KRS 224.560 .

224.20-320. Standards for asbestos abatement or removal.

Notwithstanding any statute or regulation to the contrary, the facilities of those entities defined in KRS 278.010(3) shall be required to comply solely with the National Emission Standards for Asbestos, of the United States Environmental Protection Agency and applicable rules and regulations of the United States Occupational Safety and Health Administration, and the Kentucky Occupational Safety and Health Standards Board, for purposes of asbestos abatement or removal.

History. Enact. Acts 1988, ch. 413, § 4, effective April 8, 1988.

Compiler’s Notes.

This section was formerly compiled as KRS 224.570 .

Small Business Stationary Sources

224.20-500. Legislative finding.

The General Assembly hereby declares that assisting small businesses in complying with the requirements of the 1990 Federal Clean Air Act amendments is a top priority due to the pervasive technical nature of these requirements. The General Assembly also finds that assisting small businesses in complying with other environmental protection regulatory programs would complement this assistance. It is therefore in the best interest of Kentucky small businesses, as well as the citizens of Kentucky, to establish a program whose purpose is to advise small businesses on all environmental protection regulatory programs as well as the requirements of the 1990 Federal Clean Air Act permitting program and to assist these small businesses in complying with these requirements.

History. Enact. Acts 1992, ch. 245, § 1, effective July 14, 1992; 1998, ch. 73, § 2, effective July 15, 1998.

Compiler’s Notes.

The 1990 federal Clean Air Act amendments, referred to in this section, is Pub. L. No. 101-549 and is compiled as 42 USCS § 7407 et seq.

224.20-505. Authorization to establish Small Business Stationary Source Technical and Environmental Compliance Assistance Program — Functions.

The cabinet is hereby authorized to establish the Small Business Stationary Source Technical and Environmental Compliance Assistance Program, referred to hereafter as “the program.” The program shall perform the functions designated for it in the 1990 Federal Clean Air Act amendments and assist the small business stationary source compliance advisory panel in the development and dissemination of the panel’s reports and advisory opinions. The cabinet may also, as funding allows, offer assistance in complying with other environmental protection regulatory programs. For the purposes of providing the assistance to small business stationary sources, “small business” shall have the meaning given it in the 1990 Federal Clean Air Act amendments. For the purposes of providing assistance with other environmental protection regulatory programs, “small business” shall also include entities owned or operated by a person that employs one hundred (100) or fewer individuals, is a small business concern as defined in the Small Business Act (15 U.S.C. secs. 631 et seq.), but which need not have air emissions subject to regulatory control.

History. Enact. Acts 1992, ch. 245, § 2, effective July 14, 1992; 1998, ch. 73, § 3, effective July 15, 1998.

Compiler’s Notes.

The 1990 federal Clean Air Act amendments, referred to in this section, is Pub. L. No. 101-549 and is compiled as 42 USCS § 7407 et seq.

224.20-510. Small Business Stationary Source Advisory Panel — Membership — Compensation.

  1. There is hereby established the Small Business Stationary Source Compliance Advisory Panel, referred to hereafter as “the panel,” to determine the overall effectiveness of Kentucky’s Small Business Stationary Source Technical and Environmental Compliance Assistance Program. The panel shall be attached to the Energy and Environment Cabinet for administrative purposes.
  2. The eleven (11) member panel shall be appointed as follows:
    1. Two (2) members, who are not owners, or representatives of owners, of small business stationary sources, shall be selected by the Governor to represent the general public;
    2. Two (2) members, who are owners, or representatives of owners, of small business stationary sources, shall be selected by the Governor to represent small business stationary sources;
    3. Two (2) members shall be selected by the secretary of the Energy and Environment Cabinet to represent that agency;
    4. One (1) member shall be selected by the secretary of the Cabinet for Economic Development; and
    5. Four (4) members who are owners, or representatives of owners of small business stationary sources, shall be selected by the Kentucky General Assembly as follows:
      1. One (1) member selected by the minority leadership and one (1) member selected by the majority leadership of the Senate, and
      2. One (1) member selected by the minority leadership and one (1) member selected by the majority leadership of the House of Representatives.
  3. Members who were appointed before July 15, 1998, shall continue in office until October 30, 1998. The Governor shall then designate the members who have been appointed in accordance with subsection (2) of this section to serve initial terms as follows:
    1. Three (3) members shall serve in office for four (4) years;
    2. Three (3) members shall serve in office for three (3) years;
    3. Three (3) members shall serve in office for two (2) years; and
    4. Two (2) members shall serve in office for one (1) year.

      When those initial terms expire, members shall serve in office for four (4) year terms.

  4. Any vacancy in an unexpired term shall be filled for the unexpired portion of the term in the same manner as the original appointment to that term.
  5. Members of the panel shall receive no compensation, but shall be reimbursed for actual expenses incurred in accordance with Kentucky statutes and administrative regulations while performing official duties.
  6. The panel shall select one (1) of its members as chair and another as vice chair.
  7. Staff services for the panel shall be performed, insofar as practicable, by personnel of the cabinet.

History. Enact. Acts 1992, ch. 245, § 3, effective July 14, 1992; 1998, ch. 73, § 1, effective July 15, 1998; 2010, ch. 24, § 363, effective July 15, 2010.

224.20-515. Duties of panel.

The panel shall:

  1. Render advisory opinions to the cabinet on the effectiveness of the Small Business Stationary Source Technical and Environmental Compliance Assistance Program.
  2. Prepare periodic reports to the United States Environmental Protection Agency on the program’s compliance with the Federal Paperwork Reduction, Regulatory Flexibility, and Equal Access to Justice Acts.
  3. Review information for small businesses subject to the 1990 Federal Clean Air Act amendments to assure the information is understandable to the layperson.
  4. Disseminate reports, reviews, and advisory opinions.

History. Enact. Acts 1992, ch. 245, § 4, effective July 14, 1992.

Compiler’s Notes.

The Equal Access to Justice Act, referred to in this section, is compiled as 5 USCS § 504 nt.; 28 USCS § 2412 nt.

The Regulatory Flexibility Act, referred to in this section, is compiled as 5 USCS § 601 et seq.

The federal Paperwork Reduction Act, referred to in this section, is compiled primarily as 44 USCS § 3501 et seq.

The 1990 federal Clean Air Act amendments, referred to in this section, is Pub. L. No. 101-549 and is compiled as 42 USCS § 7407 et seq.

Vehicle Emission Control

224.20-710. Definitions for KRS 224.20-710 to 224.20-765.

As used in KRS 224.20-710 to 224.20-765 , unless the context clearly indicates otherwise:

  1. “Compliance certificate” means an official emission inspection certificate issued by the cabinet or a county, air pollution control district, contractor, or fleet operator authorized by the cabinet, indicating that a vehicle has been tested in accordance with KRS 224.20-710 to 224.20-765 and complies with all applicable emission standards;
  2. “Independent contractor” means any person, business firm, partnership, or corporation with whom the cabinet or a fiscal court may negotiate an agreement providing for construction, equipment, maintenance, personnel, management, and operation of an official emission inspection station;
  3. “Control system” means equipment designed for installation or installed on a motor vehicle for the purpose of reducing the air contaminants emitted from the vehicle or a system or engine adjustment or modification which causes a reduction of air contaminants emitted from the vehicle;
  4. “Exemption certificate” means an official exemption certificate issued by the cabinet or a county, contractor, or fleet operator authorized by the cabinet, indicating that a vehicle is exempt from certain requirements of KRS 224.20-710 to 224.20-765 ;
  5. “Inspection station” means an official vehicle emission inspection facility whether placed in a permanent structure or in a mobile unit for conveyance among various locations within this Commonwealth, to conduct emission inspections of vehicles required to be inspected pursuant to KRS 224.20-710 to 224.20-765 ;
  6. “Reciprocal certificate” means an official certificate issued by the cabinet or a county, air pollution control district, contractor, or fleet operator authorized by the cabinet, honoring an out-of-state certificate that indicates the vehicle was tested and either successfully passed the inspection or was exempt from the inspection in a state that is required to conduct vehicle emission testing by the Federal Environmental Protection Agency. A reciprocal certificate shall be valid for one (1) year from the date it is issued;
  7. “Vehicle” means any automobile or truck registered in this Commonwealth having a combined manufacturer’s weight of vehicle and maximum load to be carried of up to eighteen thousand (18,000) pounds, which is equivalent to eight thousand one hundred eighty-two (8,182) kilograms, or less and used upon the public highways of the Commonwealth for the purpose of transporting persons or property. The term “vehicle” shall not include a motorcycle, as defined in KRS 189.285(6); and
  8. “Vehicle emission control program” means a program developed by the cabinet pursuant to KRS 224.20-710 to 224.20-765 which provides for the control of vehicle emissions of any air contaminant.

History. Enact. Acts 1990, ch. 467, § 1, effective July 13, 1990; 2000, ch. 66, § 1, effective July 14, 2000; 2000, ch. 226, § 1, effective July 14, 2000.

Compiler’s Notes.

This section was formerly compiled as KRS 224.462 .

Section 4 of Acts 2000, ch. 66, effective July 14, 2000, read:

“All counties and air pollution control districts that have authority to operate a vehicle emission control program under the provisions of KRS 224.20-710 to 224.20-765 shall be prohibited from inspecting motorcycles as defined in KRS 189.285(6) upon the effective date of this Act. Any county, city, special district, or other unit of local government, including an air pollution control district, that currently has an ordinance requiring the inspection of motorcycles under a locally administered vehicle emission control program, shall repeal the ordinance within thiry (30) days of the effective date of this Act. Any local government that fails to repeal an ordinance requiring the inspection of motorcycles in violation of this section, shall have the local government’s authority to administer a vehicle emission control program immediately suspended until the offending ordinance is repealed.”

Section 8 of Acts 2000, ch. 226, effective July 14, 2000, read:

“All counties and air pollution control districts that have authority to operate a vehicle emission control program under the provisions of KRS 224.20-710 to 224.20-765 shall be required to begin issuing reciprocal certificates upon the effective date of this Act. Any county, city, special district, or other unit of local government, including an air pollution control district, that currently has an ordinance requiring the inspection of motor vehicles under a locally administered vehicle emission control program, shall amend the ordinance within thirty (30) days of the effective date of this Act to require the issuance of reciprocal certificates. Any local government that fails to amend an ordinance to issue reciprocal certificates in violation of this section shall have the local government’s authority to administer a vehicle emission control program immediately suspended until the offending ordinance is amended.”

Legislative Research Commission Note.

(7/14/2000). This section was amended by 2000 Ky. Acts chs. 66 and 226, which do not appear to be in conflict and have been codified together.

224.20-715. Comprehensive vehicle emission control program.

  1. The cabinet shall administer or provide for a comprehensive vehicle emission control program which may require the annual inspection of vehicles in counties designated by Federal Environmental Protection Agency regulation to be nonattainment for ozone, carbon monoxide, or nitrogen dioxide if a program is necessary or prudent to meet federal air quality standards and if no Federal Environmental Protection Agency approved program is being operated by an air pollution control district, county fiscal court, or combination of county fiscal courts. Provided, however, that a county legislative body not currently operating such a program has affirmatively authorized such a program to be operated either under its own or the cabinet’s jurisdiction.
  2. The cabinet shall adopt emission standards which may vary by model year, class of vehicle, engine type or size, and may provide for the exemption of certain classes of vehicles from the requirements of KRS 224.20-710 to 224.20-765 .
  3. The cabinet shall adopt conditions for compliance certificates and exemption certificates.
  4. The cabinet may administer or provide for a program to train and certify mechanics in the maintenance of control systems and techniques of engine maintenance which affect vehicle emissions, and may charge a fee for the program.
  5. The cabinet may administer or provide for the issuance and revocation of certificates to qualified mechanics and may charge a fee for the certificates.
  6. The cabinet shall adopt procedures, including inspection schedules necessary to implement the comprehensive vehicle emission control program.
  7. The cabinet may promulgate administrative regulations necessary to administer KRS 224.20-710 to 224.20-765 .

History. Enact. Acts 1990, ch. 467, § 2, effective July 13, 1990.

Compiler’s Notes.

This section was formerly compiled as KRS 224.464 .

224.20-717. Reciprocal certificate of vehicle emission testing.

  1. A person registering a motor vehicle in a county required to conduct vehicle emission testing under this chapter, who is transferring the registration of the vehicle from another state that is also required to conduct vehicle emission testing by the Federal Environmental Protection Agency, shall be issued a reciprocal certificate upon presenting to the cabinet or a county, air pollution control district, contractor, or fleet operator authorized by the cabinet, a valid certificate issued by the other state indicating the vehicle was tested and either successfully passed the inspection or was exempt from the inspection.
  2. An out-of-state certificate shall be deemed to be valid in the Commonwealth for a period not to exceed one (1) year from the date it was issued and shall be presented to the cabinet or a county, air pollution control district, contractor, or fleet operator authorized by the cabinet, to conduct vehicle emission testing under this chapter.
  3. A person issued a reciprocal certificate shall not be required to have the vehicle inspected under the provisions of this chapter until the reciprocal certificate expires.

History. Enact. Acts 2000, ch. 226, § 2, effective July 14, 2000.

224.20-720. Issuance of compliance or exemption certificates — Certificate required for registration renewal — Exception — Inspection of state vehicles.

  1. A compliance certificate shall be issued for each vehicle which meets and passes the annual inspection requirements. An exemption certificate may be issued under conditions adopted by the issuing authority, except that vehicles registered to military personnel on active duty whose duty station is outside of a county where a vehicle exhaust testing program is implemented shall receive an exemption certificate. A certificate shall be issued to a vehicle only at an official emissions inspection station established and operated under a valid permit issued by the cabinet. All certificates shall be serially numbered or otherwise identified. Certificates shall be strictly accounted for by the issuing authority.
  2. No vehicle registered in counties required by the cabinet to have a vehicle emission control program shall have its registration renewed pursuant to KRS Chapter 186 without a valid compliance certificate or exemption certificate issued pursuant to KRS 224.20-710 to 224.20-765 . Vehicles with state or official registration routinely operating in these counties shall be inspected at the same frequency as privately owned registered vehicles.

History. Enact. Acts 1990, ch. 467, § 3, effective July 13, 1990; 2000, ch. 226, § 5, effective July 14, 2000; 2003, ch. 10, § 1, effective June 24, 2003.

Compiler’s Notes.

This section was formerly compiled as KRS 224.466 .

224.20-725. Emission inspection fee.

  1. The cabinet shall establish the fee required to be paid for an emission inspection. The fee may cover all costs of implementing KRS 224.20-710 to 224.20-765 .
  2. The fee charged for issuance of a compliance certificate or an exemption certificate shall be collected with the motor vehicle registration renewal fee by the county clerk at the time and place of motor vehicle registration pursuant to KRS Chapter 186, unless an independent contractor is authorized pursuant to KRS 224.20-740 to collect inspection fees.
  3. Except as provided by KRS 224.20-740 and 224.20-750 :
    1. The clerk of each county shall collect the emission inspection fee; and
    2. All money received from inspection fees by the county clerk shall be remitted quarterly to the cabinet, except for a sum of no more than twenty-five cents ($0.25) per vehicle which the county clerk may retain.
  4. The cabinet shall promptly transmit all money collected pursuant to KRS 224.20-710 to 224.20-765 to the State Treasurer who shall deposit it in the vehicle emission control fund account.

History. Enact. Acts 1990, ch. 467, § 4, effective July 13, 1990.

Compiler’s Notes.

This section was formerly compiled as KRS 224.468 .

224.20-730. Vehicle emission control fund.

  1. There is hereby created within the State Treasury a trust and agency fund which shall not lapse to be known as the “Vehicle Emission Control Fund,” which shall consist of:
    1. Money appropriated by the General Assembly;
    2. All money remitted by county clerks which is collected for vehicle emissions inspections:
    3. All money remitted by county fiscal courts which have been delegated authority to implement a vehicle emission control program;
    4. Money received from private grants or donations; and
    5. Money received from the United States by grant or otherwise to assist the Commonwealth in any vehicle emission control program.
    6. Money received from independent contractors as required in subsection (3)(c) of KRS 224.20-740 .
  2. The cabinet shall administer the vehicle emission control fund to achieve the purposes of KRS 224.20-710 to 224.20-765 .
  3. Money in the vehicle emission control fund shall not revert to the general fund and shall be exempt from the provisions of KRS 45.229 relating to lapsing of appropriations.
  4. All purchases, capital outlay, and operating costs relating to the vehicle emission control program conducted pursuant to KRS 224.20-710 to 224.20-765 shall be charged against the vehicle emission control fund.

History. Enact. Acts 1990, ch. 467, § 5, effective July 13, 1990.

Compiler’s Notes.

This section was formerly compiled as KRS 224.470 .

224.20-735. Matters subject to administrative regulation.

  1. The cabinet may prescribe, by administrative regulation, for vehicle emission control, standards for use of a fuel or fuel additive in a vehicle or vehicle engine the use of which fuel would damage or render ineffective a control system installed on the vehicle.
  2. The cabinet may prohibit, by administrative regulation, any person from removing, altering, or causing the removal or alteration of a control system to diminish its effectiveness.
  3. This section shall not apply to motor vehicles that are used exclusively for competition and are not operated on the public streets and highways.

History. Enact. Acts 1990, ch. 467, § 6, effective July 13, 1990.

Compiler’s Notes.

This section was formerly compiled as KRS 224.472 .

224.20-740. Vehicle emission inspection stations.

  1. The cabinet may enter into an agreement with one (1) or more independent contractors, subject to public bidding, to provide for the construction, equipment, establishment, maintenance, and operation of official vehicle emission inspection stations in the numbers and locations required to provide vehicle owners reasonably convenient access to inspection facilities.
  2. The cabinet shall be prohibited from entering into an agreement with any independent contractor who is engaged in the business of manufacturing, selling, maintaining or repairing vehicles and vehicle replacement or repair parts in the Commonwealth, except that the independent contractor shall not be precluded from maintaining or repairing any vehicle owned or operated by the independent contractor.
  3. The agreement authorized by this section shall contain provisions relating to the following:
    1. That the Commonwealth shall not be required to purchase any asset or assume any liability if the agreement is not renewed;
    2. That the contractor is authorized to collect the inspection fee for a test in the amount fixed by the cabinet;
    3. That the Commonwealth shall be reimbursed by the contractor for not less than ten percent (10%) of the inspection fee, except for programs operated by air pollution control districts;
    4. That reports and documentation shall be submitted to the cabinet if required concerning the operation of the official vehicle emission inspection stations; and
    5. That the cabinet has discretion to investigate the operation of the official vehicle emission inspection stations as the conditions and circumstances of the operation may indicate, and that the cabinet may revoke the contract if it finds that the stations are not operated in accordance with KRS 224.20-710 to 224.20-765 or that the contractor has failed or refused to submit records or documentation required by KRS 224.20-710 to 224.20-765 .
  4. The agreement may contain any provisions deemed necessary by the cabinet for the administration or enforcement of KRS 224.20-710 to 224.20-765 .

History. Enact. Acts 1990, ch. 467, § 7, effective July 13, 1990.

Compiler’s Notes.

This section was formerly compiled as KRS 224.474 .

224.20-745. Acquisition of special equipment, tools, materials, or facilities.

The cabinet may acquire in the name of the Commonwealth by purchase, donation, dedication, or other lawful means any special equipment, tools, materials, or facilities needed to adequately administer, investigate, or enforce KRS 224.20-710 to 224.20-765 .

History. Enact. Acts 1990, ch. 467, § 10, effective July 13, 1990.

Compiler’s Notes.

This section was formerly compiled as KRS 224.480 .

224.20-750. Fleet inspection station.

  1. Any registered owner or lessee of a fleet of vehicles may apply to the cabinet for a permit to establish at his own expense a fleet inspection station. The cabinet shall not issue any fleet inspection station permit until it has found that the applicant:
    1. Maintains an established place of business or facility for the repair and maintenance of the applicant’s fleet of vehicles;
    2. Has obtained machinery, tools, and equipment approved by the cabinet and adequate to conduct the required emissions inspections;
    3. Employs properly trained personnel with whom to perform the necessary labor; and
    4. Will keep complete records of all inspections performed and repairs made and will provide the information or data to the cabinet.
  2. An operator of a fleet inspection station holding a valid permit shall, upon filing an application in the manner and form prescribed by the cabinet, receive a sufficient number of certificate forms for each vehicle in the applicant’s fleet. No inspection certificate shall be issued to any fleet vehicle until it has been inspected and found to comply with all the standards that the vehicle would be required to meet at any inspection station.
  3. No holder of a fleet inspection station permit shall inspect or certify any vehicle for which the permittee is not the registered owner or lessee.
  4. Vehicles owned by a licensed vehicle dealer and which are held for resale as a part of the dealer’s business inventory shall be deemed a part of the dealer’s vehicle fleet for purposes of this section.
  5. The cabinet shall investigate the operation of each fleet inspection station as the conditions and circumstances of the operation may indicate. The cabinet may require the holder of any fleet permit to submit documentation concerning the operation of the inspection station. The cabinet may revoke and require the surrender and forfeiture of any fleet inspection station permit and inspection certificate forms held by a permittee if it finds that the station is not operated in accordance with KRS 224.20-710 to 224.20-765 or that the holder of the permit has failed or refused to submit records or documentation required by KRS 224.20-710 to 224.20-765 .
  6. The holder of a fleet inspection station permit shall pay to the cabinet a fee in an amount to be established by regulation.

History. Enact. Acts 1990, ch. 467, § 8, effective July 13, 1990.

Compiler’s Notes.

This section was formerly compiled as KRS 224.476 .

224.20-755. Operation of vehicle emission control program by county.

  1. A county fiscal court may apply to the cabinet for authority to operate a vehicle emission control program. The cabinet may delegate authority when it has found that the applicant:
    1. Has obtained approved machinery, tools, and equipment approved by the cabinet and adequate to conduct the required emission inspections;
    2. Has provided for a sufficient number of facilities to ensure minimum waiting time for vehicles to be inspected;
    3. Employs properly trained personnel with whom to perform the necessary inspections;
    4. Has adopted minimum emission standards for vehicles at least as stringent as those adopted by the cabinet; and
    5. Agrees to provide information prescribed by the cabinet concerning the implementation, administration, and operation of the vehicle emission control program.
  2. Any county that has received authority to operate a vehicle emission control program shall be prohibited from inspecting motorcycles as defined in KRS 189.285(6). The provisions of this subsection shall supersede any existing local ordinance involving the inspection of motorcycles under a vehicle emission control program administered by a county. All counties, cities, special districts, and other units of local government shall be prohibited from enacting an ordinance contrary to the provisions of this subsection.
  3. Any county that has received authority to operate a vehicle emission control program shall honor and issue reciprocal certificates as required under KRS 224.20-717 . The provisions of this subsection shall supersede any existing local ordinance involving the inspection of motor vehicles under a vehicle emission control program administered by a county. All counties, cities, special districts, and other units of local government shall be prohibited from enacting an ordinance contrary to the provisions of this subsection.
  4. Any county which has received authority to operate a vehicle emission control program may charge an inspection fee. There shall be established an emission inspection account in the county. Unless an independent contractor is authorized pursuant to KRS 224.20-740 to collect inspection fees, the county clerk shall collect the fee at the time of registration renewal in the manner provided for cabinet programs. The inspection fees collected by the county clerk shall be immediately transferred to the county emission inspection account, except for a sum of no more than twenty-five cents ($0.25) per vehicle which the county clerk may retain.
  5. A county which has received authority to operate a vehicle emission control program shall transmit to the cabinet’s vehicle emission control fund two percent (2%) of the funds received from inspection fees or from the independent contractor authorized pursuant to KRS 224.20-740 .
  6. The county may use the county’s emission inspection fund to acquire any special equipment, tools, employees, material, or facilities needed to adequately administer, investigate, or enforce the provisions of KRS 224.20-710 to 224.20-765 .
  7. The county may enter into a contract with the cabinet and receive state funds charged to the cabinet’s vehicle emission control fund to start a vehicle emission control program.
  8. A county applying for delegation pursuant to this section may enter into a contract with one (1) or more independent contractors subject to the provisions of KRS 224.20-740 to provide for construction, equipment, establishment, maintenance and operation of inspection stations for the purpose of obtaining delegation pursuant to KRS 224.20-710 to 224.20-765 .
  9. If the cabinet determines, after a hearing with notice, that a delegated vehicle emission control program is not being administered in accordance with KRS 224.20-710 to 224.20-765 , the delegation of authority may be revoked by order of the cabinet and all unexpended money, equipment and facilities acquired by the county with funds granted by the cabinet shall be transferred to the cabinet.

History. Enact. Acts 1990, ch. 467, § 9, effective July 13, 1990; 2000, ch. 66, § 2, effective July 14, 2000; 2000, ch. 226, § 3, effective July 14, 2000.

Compiler’s Notes.

This section was formerly compiled as KRS 224.478 .

Legislative Research Commission Note.

(7/14/2000). This section was amended by 2000 Ky. Acts chs. 66 and 226, which do not appear to be in conflict and have been codified together.

224.20-760. Effect of KRS 224.20-710 to 224.20-765 on KRS Chapters 77 and 224 provisions — Prohibition against inspection of motorcycles — Reciprocal certificates.

  1. Except as provided in subsections (2), (3), and (4) of this section, the provisions of KRS 224.20-710 to 224.20-765 shall not detract from the authority provided air pollution control districts in KRS Chapters 77 and 224.
  2. Any air pollution control district that has received authority to operate a vehicle emission control program shall be prohibited from inspecting motorcycles as defined in KRS 189.285(6). The provisions of this subsection shall supersede any existing local ordinance involving the inspection of motorcycles under a vehicle emission control program administered by an air pollution control district. All counties, cities, special districts, and other units of local government, including an air pollution control district, shall be prohibited from enacting an ordinance contrary to the provisions of this subsection.
  3. Any air pollution control district that has received authority to operate a vehicle emission control program shall honor and issue reciprocal certificates as required under KRS 224.20-717 . The provisions of this subsection shall supersede any existing local ordinance involving the inspection of motor vehicles under a vehicle emission control program administered by an air pollution control district. All counties, cities, special districts, and other units of local government shall be prohibited from enacting an ordinance contrary to the provisions of this subsection.
  4. The authority in KRS 224.20-720 is provided to air pollution control districts provided:
    1. The air pollution control district may function and exercise its powers pursuant to resolution or ordinance as provided in this section, KRS 186.180 , 186.290 , 186.990 , and 224.20-765 , and KRS Chapter 77; and
    2. The air pollution control district has been granted concurrent jurisdiction by the cabinet pursuant to KRS 224.20-130 .
  5. Actions taken by an air pollution control district for violations of KRS 224.20-710 to 224.20-765 shall be enforced in accordance with the provisions of KRS 224.20-130 (5).

History. Enact. Acts 1990, ch. 467, § 11, effective July 13, 1990; 2000, ch. 66, § 3, effective July 14, 2000; 2000, ch. 226, § 4, effective July 14, 2000; 2000, ch. 441, § 4, effective July 14, 2000.

Compiler’s Notes.

This section was formerly compiled as KRS 224.482 .

Legislative Research Commission Note.

(7/14/2000). This section was amended by 2000 Ky. Acts chs. 66, 226, and 441 which do not appear to be in conflict and have been codified together.

224.20-765. Penalties for vehicle emission control violations.

  1. A person shall not be guilty of a criminal offense for failure to obtain a valid compliance or exemption certificate.
  2. A person convicted of knowingly violating any statutory provision of, or administrative regulation promulgated under KRS Chapter 13A to implement, KRS 224.20-710 to 224.20-765 , other than KRS 224.20-720 , shall be guilty of a Class B misdemeanor.
  3. A person who is convicted of knowingly demanding or collecting a fee for the inspection of a vehicle other than the fees established pursuant to KRS 224.20-710 to 224.20-765 shall be guilty of a Class A misdemeanor.
  4. A person convicted of knowingly making or issuing any imitation of a compliance certificate or exemption certificate shall be guilty of a Class D felony.
  5. A person convicted of willful improper issuance or use of an inspection certificate shall be guilty of a Class A misdemeanor.

History. Enact. Acts 1990, ch. 467, § 12, effective July 13, 1990; 2000, ch. 441, § 5, effective July 14, 2000.

Compiler’s Notes.

This section was formerly compiled as KRS 224.484 .

Research References and Practice Aids

Cross-References.

Designation of offenses; penalties, see KRS 532.020 .

SUBCHAPTER 30. Noise Control

224.30-050. Noise emission prohibitions. [Repealed]

History. Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 19; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 19) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.30-100. Findings and policy. [Repealed]

History. Enact. Acts 1974, ch. 99, § 2, effective June 21, 1974; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 99, § 2, effective June 21, 1974) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.30-105. Definitions for KRS 224.30-100 to 224.30-190. [Repealed]

History. Enact. Acts 1974, ch. 99, § 3, effective June 21, 1974; 1974, ch. 74, Art. III, §§ 1, 13, effective June 21, 1974; 2010, ch. 24, § 364, effective July 15, 2010; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 99, § 3, effective June 21, 1974; 1974, ch. 74, Art. III, §§ 1, 13, effective June 21, 1974; 2010, ch. 24, § 364, effective July 15, 2010) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.30-110. Agency cooperation and compliance with control requirements — Review of standards or regulations — Report to secretary. [Repealed]

History. Enact. Acts 1974, ch. 99, § 4, effective June 21, 1974; 1974, ch. 74, Art. III, §§ 1, 13, effective June 21, 1974; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 99, § 4, effective June 21, 1974; 1974, ch. 74, Art. III, §§ 1, 13, effective June 21, 1974) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.30-115. Development and maintenance of comprehensive state-wide program of noise regulation. [Repealed]

History. Enact. Acts 1974, ch. 99, § 5, effective June 21, 1974; 1974, ch. 74, Art. III, §§ 1, 13, effective June 21, 1974; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 99, § 5, effective June 21, 1974; 1974, ch. 74, Art. III, §§ 1, 13, effective June 21, 1974) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.30-120. Powers of secretary. [Repealed]

History. Enact. Acts 1974, ch. 99, § 6, effective June 21, 1974; 1974, ch. 74, Art. III, §§ 1, 13, effective June 21, 1974; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler's Notes.

This section (Enact. Acts 1974, ch. 99, § 6, effective June 21, 1974; 1974, ch. 74, Art. III, §§ 1, 13, effective June 21, 1974) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.30-125. Certification of products — Purchase or lease for state government — Periodic testing — Procedure when level exceeds that on which certification is based. [Repealed]

History. Enact. Acts 1974, ch. 99, § 7, effective June 21, 1974; 1974, ch. 74, Art. II, § 9(3), Art. III, §§ 1, 13, effective June 21, 1974; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 99, § 7, effective June 21, 1974; 1974, ch. 74, Art. II, § 9(3), Art. III, §§ 1, 13, effective June 21, 1974) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.30-130. Variances. [Repealed]

History. Enact. Acts 1974, ch. 99, § 8, effective June 21, 1974; 1974, ch. 74, Art. III, §§ 1, 13, effective June 21, 1974; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 99, § 8, effective June 21, 1974; 1974, ch. 74, Art. III, §§ 1, 13, effective June 21, 1974) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.30-135. Conditions imposed on granting variances — Time limit — Extension. [Repealed]

History. Enact. Acts 1974, ch. 99, § 9, effective June 21, 1974; 1974, ch. 74, Art. III, §§ 1, 13, effective June 21, 1974; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler's Notes.

This section (Enact. Acts 1974, ch. 99, § 9, effective June 21, 1974; 1974, ch. 74, Art. III, §§ 1, 13, effective June 21, 1974) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.30-140. Variance petition — Notice — Hearing. [Repealed]

History. Enact. Acts 1974, ch. 99, § 10, effective June 21, 1974; 1974, ch. 74, Art. III, §§ 1, 13, effective June 21, 1974; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 99, § 10, effective June 21, 1974; 1974, ch. 74, Art. III, §§ 1, 13, effective June 21, 1974) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.30-145. Annual report. [Repealed]

History. Enact. Acts 1974, ch. 99, § 11, effective June 21, 1974; 1974, ch. 74, Art. III, §§ 1, 13, effective June 21, 1974; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 99, § 11, effective June 21, 1974; 1974, ch. 74, Art. III, §§ 1, 13, effective June 21, 1974) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.30-150. Standards — Enforcement jurisdiction. [Repealed]

History. Enact. Acts 1974, ch. 99, § 19, effective June 21, 1974; 1974, ch. 74, Art. III, §§ 1, 13, effective June 21, 1974; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 99, § 19, effective June 21, 1974; 1974, ch. 74, Art. III, §§ 1, 13, effective June 21, 1974) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.30-155. Applicability of KRS 224.10-420, 224.10-440 and 224.10-470. [Repealed]

History. Enact. Acts 1974, ch. 99, § 16, effective June 21, 1974; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 99, § 16, effective June 21, 1974) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.30-160. Remedies additional to those available at law. [Repealed]

History. Enact. Acts 1974, ch. 99, § 17, effective June 21, 1974; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler's Notes.

This section (Enact. Acts 1974, ch. 99, § 17, effective June 21, 1974) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.30-165. Prohibitions. [Repealed]

History. Enact. Acts 1974, ch. 99, § 15, effective June 21, 1974; 1974, ch. 74, Art. III, §§ 1, 13, effective June 21, 1974; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 99, § 15, effective June 21, 1974; 1974, ch. 74, Art. III, §§ 1, 13, effective June 21, 1974) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.30-170. Exceptions. [Repealed]

History. Enact. Acts 1974, ch. 99, § 23, effective June 21, 1974; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler's Notes.

This section (Enact. Acts 1974, ch. 99, § 23, effective June 21, 1974) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.30-175. Local comprehensive noise regulation program.

All local governments may develop, adopt, and maintain a comprehensive program of noise regulation. A program may include a study of the noise problems resulting from uses and activities within its jurisdiction and the development and adoption of a noise control plan.

HISTORY: Enact. Acts 1974, ch. 99, § 12, effective June 21, 1974; 2017 ch. 117, § 45, effective June 29, 2017.

Compiler’s Notes.

This section was formerly compiled as KRS 224.785 .

Opinions of Attorney General.

The authority to regulate noise pollution found in KRS Chapter 224 is sufficient, even though it is not found in the county home rule statute. OAG 79-599 .

224.30-180. Noise control plan — Contents. [Repealed]

History. Enact. Acts 1974, ch. 99, § 13, effective June 21, 1974; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 99, § 13, effective June 21, 1974) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.30-185. Adoption and enforcement of ordinances to implement plan. [Repealed]

History. Enact. Acts 1974, ch. 99, § 14, effective June 21, 1974; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 99, § 14, effective June 21, 1974) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.30-190. Modification of motor vehicle exhaust system to increase noise prohibited.

No person shall modify the exhaust system of a motor vehicle in a manner which will amplify or increase the noise emitted by the motor of such vehicle, above that emitted by the muffler originally installed on the vehicle and the original muffler shall comply with all of the requirements of this chapter. No person shall operate a motor vehicle with an exhaust system so modified.

History. Enact. Acts 1974, ch. 99, § 20, effective June 21, 1974.

Compiler’s Notes.

This section was formerly compiled as KRS 224.800 .

224.30-195. Citation of KRS 224.30-100 to 224.30-190. [Repealed]

History. Enact. Acts 1974, ch. 99, § 1, effective June 21, 1974; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 99, § 1, effective June 21, 1974) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

SUBCHAPTER 40. Waste — Generalities

General Provisions

224.40-100. Disposal at other than permitted site or facility prohibited — Open dump prohibited — Exception — Compliance with regulations required — Damages for noncompliance.

  1. No person shall transport to or dispose of waste at any site or facility other than a site or facility for which a permit for waste disposal has been issued by the cabinet. Upon request, any transporter of waste shall receive from the cabinet a current list of permitted waste disposal sites or facilities and shall be subsequently notified of any new permits or changes in the status of permits for waste disposal sites and facilities in the Commonwealth.
  2. The use of open dumps is prohibited except in the case of an open dump which is under a timetable or schedule for compliance approved by the cabinet. The cabinet may enjoin the operation of any open dump which does not have a timetable or schedule of compliance approved by the cabinet.
  3. The cabinet may require any person who violates this section or KRS 224.40-305 to take appropriate response actions to close and reclaim or upgrade open dumps to comply with applicable administrative regulations adopted by the cabinet. If a demand for response action is not implemented within a time period specified in a demand or timetable or schedule for compliance issued or approved by the cabinet, the cabinet may enjoin the operation of the open dump and restore the site.
  4. Except as provided in KRS 224.43-020 , the cabinet may assess any person who violates this section by failing to take appropriate actions to close and reclaim or upgrade open dumps, damages in an amount equal to the cost of closure as estimated by the cabinet. The money collected shall be placed in the agency account established under KRS 224.40-650 (4) to be used for the site closure and restoration. Any money remaining after site closure and restoration from the amount assessed shall be returned to the person against whom any assessment was made.

History. Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 13, effective January 1, 1973; 1978, ch. 113, § 7, effective June 17, 1978; 1980, ch. 284, § 3, effective July 15, 1980; 1986, ch. 172, § 2, effective July 15, 1986; 1991 (1st Ex. Sess.), ch. 12, § 35, effective February 26, 1991.

Compiler’s Notes.

This section was originally compiled as KRS 224.255 and was renumbered as KRS 224.835 prior to being renumbered as this section.

NOTES TO DECISIONS

1.Jurisdiction.
2.— Concurrent.

Concurrent criminal jurisdiction provided by KRS 224.99-010 (9) is violative of Ky. Const., § 11 in situations where there is no valid connection between the criminal activity and Franklin County; judgments asserting defendant’s entitlement to venue in county where dumping violations of subsection (2) of this section and KRS 224.40-305 occurred were affirmed. Commonwealth v. Crider & Rogers, 929 S.W.2d 179, 1996 Ky. LEXIS 77 ( Ky. 1996 ).

Research References and Practice Aids

Journal of Natural Resources & Environmental Law.

Articles, Common Law Remedies Available for Petroleum Contamination of Soil and Groundwater in Kentucky, 13 J. Nat. Resources & Envtl. L. 1 (1998-99).

Kentucky Law Journal.

Stephens, Commencing the Decade With Environmental Reform: The 1980 Kentucky General Assembly Implements the Resource Conservation and Recovery Act of 1976, 69 Ky. L.J. 227 (1980-81).

Northern Kentucky Law Review.

Natter, How Clean is Clean? Hazardous Waste/Hazardous Substance Cleanup Standards Under Kentucky Law, 18 N. Ky. L. Rev. 295 (1991).

224.40-100. Disposal at other than permitted site or facility prohibited — Open dump prohibited — Exception — Compliance with regulations required — Damages for noncompliance.

  1. No person shall transport to or dispose of waste at any site or facility other than a site or facility for which a permit for waste disposal has been issued by the cabinet. Upon request, any transporter of waste shall receive from the cabinet a current list of permitted waste disposal sites or facilities and shall be subsequently notified of any new permits or changes in the status of permits for waste disposal sites and facilities in the Commonwealth.
  2. The use of open dumps is prohibited except in the case of an open dump which is under a timetable or schedule for compliance approved by the cabinet. The cabinet may enjoin the operation of any open dump which does not have a timetable or schedule of compliance approved by the cabinet.
  3. The cabinet may require any person who violates this section or KRS 224.40-305 to take appropriate response actions to close and reclaim or upgrade open dumps to comply with applicable administrative regulations adopted by the cabinet. If a demand for response action is not implemented within a time period specified in a demand or timetable or schedule for compliance issued or approved by the cabinet, the cabinet may enjoin the operation of the open dump and restore the site.
  4. Except as provided in KRS 224.43-020 , the cabinet may assess any person who violates this section by failing to take appropriate actions to close and reclaim or upgrade open dumps, damages in an amount equal to the cost of closure as estimated by the cabinet. The money collected shall be placed in the agency account established under KRS 224.40-650 (4) to be used for the site closure and restoration. Any money remaining after site closure and restoration from the amount assessed shall be returned to the person against whom any assessment was made.
  5. A legislative body of a local government, as defined in KRS 65.8805 , that has not adopted the procedures provided for in KRS 65.8801 to 65.8840 may adopt ordinances against open dumping and impose a civil fine of not less than two hundred fifty dollars ($250) and not more than five hundred dollars ($500) on any person who violates subsection (1) of this section. Penalties shall be imposed by District Court in the county where the offense occurred and shall be collected by the Circuit Court clerk and transferred to the treasurer in the county where the offense occurred for the abatement, cleanup, and restoration of the open dump site. Nothing contained in this subsection shall limit the cabinet’s authority to:
    1. Regulate the transport, permitting, or disposal of solid waste; or
    2. Prohibit open dumping, impose fines and penalties, or impose any other requirements on solid waste disposal.
  6. The District Court shall not enforce any provision of this section relating to improper disposal of solid waste against an owner, occupant, or person having control or management of any land if the owner, occupant, or person is:
    1. Not the generator of the solid waste or is not disposing or knowingly allowing the disposal of solid waste and has made reasonable efforts to prevent the disposal of solid waste by other persons onto the property; or
    2. A solid waste management facility operating in compliance with its solid waste management permit.

HISTORY: Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 13, effective January 1, 1973; 1978, ch. 113, § 7, effective June 17, 1978; 1980, ch. 284, § 3, effective July 15, 1980; 1986, ch. 172, § 2, effective July 15, 1986; 1991 (1st Ex. Sess.), ch. 12, § 35, effective February 26, 1991; 2021 ch. 137, § 3.

224.40-110. Acceptance of federal mechanisms for financial assurance for closure of solid waste disposal facilities — Administrative regulations.

  1. The cabinet may accept the mechanisms for financial assurance for closure, post-closure care, and corrective action for solid waste disposal facilities allowed under federal administrative regulations promulgated to implement Subtitle D of the Resource Conservation and Recovery Act, as amended.
  2. The cabinet shall promulgate administrative regulations to implement this section. However, the cabinet may accept the mechanisms allowed under subsection (1) of this section prior to the time its administrative regulations are promulgated.

History. Enact. Acts 1992, ch. 455, § 1, effective April 13, 1992.

Compiler’s Notes.

The Resource Conservation and Recovery Act, referred to in subsection (1), is compiled as 42 USCS § 6901 et seq.

224.40-120. Requirements for allowing off-site disposal of construction or demolition waste at sites of less than one acre.

  1. The cabinet shall not permit the off-site disposal of construction or demolition waste at a site less than one (1) acre unless, as a minimum, the following conditions are imposed:
    1. The applicant shall provide a written certification that a copy of the application has been delivered to the governing body of the solid waste management area and that disposal of construction and demolition waste at the proposed site will not violate local land use regulations;
    2. Disposal shall only occur during daylight hours in accordance with a posted schedule that will allow inspection by local or state officials;
    3. The applicant shall erect on the site a sign clearly indicating that the site is permitted for disposal of construction and demolition debris only, and the operating hours shall appear on the sign along with the applicant’s permit number;
    4. The cabinet shall establish a schedule for closing and covering the site, including provisions for intermediate cover when flammable waste is involved;
    5. Notwithstanding any other provision of law, the applicant shall not allow the disposal of tires in a waste disposal facility regulated by this section; and
    6. The cabinet shall require the applicant to post a bond in the amount of ten thousand dollars ($10,000) to insure compliance with the conditions of the permit.
  2. The cabinet may waive the requirement of subsection (1)(b) of this section, that the hours of operation shall be posted, and the requirements of subsection (1)(c) and (d) of this section, if the cabinet determines that the area of land to be affected, the limited duration of the disposal operation, or the materials to be disposed of do not require imposition of these standards to assure the safety of the public.
  3. This section shall not apply to beneficial reuse of industrial solid waste.

History. Enact. Acts 1992, ch. 292, § 1, effective April 9, 1992.

Waste Permits and Licensing

224.40-305. Necessity of permit.

No person shall establish, construct, operate, maintain, or permit the use of a waste site or facility without first having obtained a permit from the cabinet pursuant to this chapter and administrative regulations adopted by the cabinet.

History. Enact. Acts 1974, ch. 55, § 4; 1980, ch. 284, § 6, effective July 15, 1980; 1982, ch. 279, § 15, effective July 15, 1982; 1984, ch. 111, § 186, effective July 13, 1984; 1986, ch. 172, § 3, effective July 15, 1986; 1991 (1st Ex. Sess.), ch. 12, § 23, effective February 26, 1991.

Compiler’s Notes.

This section was originally compiled as KRS 224.880 and was renumbered as 224.842 prior to being renumbered as this section.

NOTES TO DECISIONS

1.Jurisdiction.
2.— Concurrent.

Concurrent criminal jurisdiction provided by KRS 224.99-010 (9) is violative of Ky. Const., § 11 in situations where there is no valid connection between the criminal activity and Franklin County; judgments asserting defendant’s entitlement to venue in county where dumping violations of KRS 224.40-100 (2) and this section occurred were affirmed. Commonwealth v. Crider & Rogers, 929 S.W.2d 179, 1996 Ky. LEXIS 77 ( Ky. 1996 ).

3.Construction.

In the context of KRS 224.40-305 , “maintain” is properly construed to mean as keeping in an existing state or to preserve or retain; thus, although a pile of concrete waste was present on a property when a new owner purchased it, the owner was properly found to be maintaining an unpermitted waste site where the owner added additional waste items to the pile and did nothing to prevent others from doing so. Astro, Inc. v. Envtl. & Pub. Prot. Cabinet, 2007 Ky. App. LEXIS 175 (Ky. Ct. App. June 8, 2007).

Research References and Practice Aids

Journal of Natural Resources & Environmental Law.

Notes and Comments, Kentucky’s Efforts to Protect Its Groundwater: Uniqueness and Uniformity Among States, 10 J. Nat. Resources & Envtl. L. 371 (1994-95).

Kentucky Law Journal.

Stephens, Commencing the Decade With Environmental Reform: The 1980 Kentucky General Assembly Implements the Resource Conservation and Recovery Act of 1976, 69 Ky. L.J. 227 (1980-81).

Cox, What May States Do About Out-of-State Waste in Light of Recent Supreme Court Decisions Applying the Dormant Commerce Clause? Kentucky As Case Study in the Waste Wars, 83 Ky. L.J. 551 (1994-95).

224.40-310. Definition of “waste disposal facility” — Requisites for issuance of permits — Necessity of approval of hazardous waste facilities by local units of government — Exceptions — Procedures for applications to construct solid waste landfills.

  1. For purposes of this section, “waste disposal facility” means a contained landfill; construction/demolition debris landfill except for a landfill for the disposal of sand, soil, rock, gravel, bridge debris, and other materials extracted as part of a public road construction project funded wholly or in part with state funds; residual landfill; solid waste incinerator; waste-to-energy facility; or a hazardous waste incinerator, landfill, or other site or facility for the land disposal of hazardous waste.
  2. No permit to construct or expand, when the expansion results in substantial additional capacity, a waste disposal facility shall be issued until a complete application has been submitted to and approved by the cabinet and notice of the application has been published, as provided for in subsections (4) and (5) of this section, at the expense of the applicant in a manner reasonably calculated to inform that portion of the public which is most likely to be affected by the operation of the proposed waste disposal facility. The publication shall take place after the cabinet has determined the application to be technically complete and issued a draft permit.
  3. For a permit application to construct a solid waste landfill or a permit application to expand, when the expansion results in substantial additional capacity, an existing solid waste landfill, the cabinet shall, upon first receiving the applications require immediately the general public notice provided for in subsections (4) and (5)(a) to (d) of this section and upon determining that the application is administratively complete and at the time technical review begins, give special notice of the application to the county judge/executive or mayor of an urban-county government and members of the fiscal court or urban-county council of the county or urban-county government in which the landfill is or will be located. The special notice shall be in the form of an executive summary of the application. Also, at the time technical review begins, the cabinet shall again require the general public notice provided for in subsections (4) and (5)(a) to (d) of this section with the additional information that the executive summary shall be available from the office of the county judge/executive or mayor of an urban-county government. Upon request by a county judge/executive, mayor of an urban-county government, or a member of fiscal court or an urban-county council, the cabinet shall explain the application in a manner that is complete and expeditious. The cabinet shall notify the county judge/executive or mayor of an urban-county government if there will not be a public hearing on the applications. If there will be a public hearing, the cabinet shall notify the county judge/executive or mayor of an urban-county government fifteen (15) days prior to the hearing date.
  4. At a minimum, publication shall be made at least once by advertisement in a daily or weekly newspaper of general circulation in the locality where the proposed waste disposal facility is to be located.
  5. The contents of the public notice of an application shall include the following:
    1. The name and address of the applicant;
    2. A brief description of the activity for which a permit is being sought;
    3. A description of the proposed location including a description of the primary access routes;
    4. The name and address of this cabinet; and
    5. The following statement: “Any person who may be aggrieved by the issuance of a permit for this proposed waste disposal facility may file with the cabinet a petition which sets forth the grounds of the objection and demand a hearing pursuant to KRS 224.10-420 (2).” Such hearing shall be held within the county where the waste disposal facility is proposed.
  6. No permit to construct or expand, when the expansion results in substantial additional capacity, a waste disposal facility shall be issued until at least thirty (30) days have expired following publication of the application. The applicant for a permit shall establish the date of publication by a verified affidavit from the newspaper which publishes the advertisement. If a hearing is requested, no permit to construct or expand, when the expansion results in substantial additional capacity, a waste disposal facility shall be issued prior to a final order of the secretary. In the case of hazardous waste incinerators, landfills, and other sites or facilities for the land disposal of hazardous waste, no permit shall be approved or issued prior to notification of the cabinet by the local unit of government of its actions pursuant to subsection (7) of this section.
  7. The fiscal court of the county, urban-county government, or governing body of an incorporated municipality wherein a hazardous waste incinerator, landfill, or other site or facility for the land disposal of hazardous waste is proposed, shall conduct a public hearing after public notice has been given in accordance with KRS Chapter 424 and shall vote to approve or disapprove the hazardous waste incinerator, landfill, or other site or facility for the land disposal of hazardous waste within thirty (30) days after the hearing described in subsections (5) and (6) of this section. If no hearing is requested under the provisions of subsections (5) and (6) of this section, the fiscal court, urban-county government, or governing body of an incorporated municipality, shall conduct a public hearing and vote to approve or disapprove the hazardous waste incinerator, landfill, or other site or facility for the land disposal of hazardous waste within sixty (60) days following publication of the application. In making a determination the fiscal court, urban-county government, or governing body of an incorporated municipality shall consider the social and economic impacts of the proposed hazardous waste incinerator, landfill, or other site or facility for the land disposal of hazardous waste on the affected community, including changes in property values, community perception, and other psychic costs; costs and availability of public services, facilities, and improvements required to support the incinerator, landfill, or other site or facility and protect public health, safety, and the environment; and the relationship of the proposed hazardous waste incinerator, landfill, or other site or facility for the land disposal of hazardous waste to local planning and existing development. After a fiscal court, urban-county government, or governing body of an incorporated municipality has voted to approve or disapprove a hazardous waste incinerator, landfill, or other site or facility for the land disposal of hazardous waste, the court, urban-county government, or governing body of an incorporated municipality shall so notify the cabinet in writing within ten (10) days. If a hazardous waste incinerator, landfill, or other site or facility for the land disposal of hazardous waste is disapproved by the court, urban-county government, or governing body of an incorporated municipality, the reasons for disapproval shall be set forth clearly and concisely, and recorded in the minutes. No permit shall be issued by the cabinet if a fiscal court, urban-county government, or governing body of an incorporated municipality disapproves the hazardous waste incinerator, landfill, or other site or facility for the land disposal of hazardous waste in the manner prescribed herein.
  8. Upon first receiving a permit application to modify a solid waste landfill by reducing or eliminating any term or condition pertaining to the liner system, the cabinet shall require immediately the general public notice provided for in subsections (4) and (5) of this section.
  9. The provisions of subsection (7) of this section shall not apply to:
    1. A proposed regional integrated waste treatment and disposal demonstration facility and any on-site remedial action facility authorized pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended;
    2. An existing hazardous waste incinerator having all required permits or authorizations as of March 4, 1988, but subsection (7) of this section shall apply to any incinerator unit proposed for construction at an existing facility for which construction commenced after March 4, 1988, and to proposed hazardous waste incinerators for which a permit application has been filed but has not been issued as of March 4, 1988; and
    3. On-site incineration of hazardous waste by the generator of the waste at the site of the waste generation including waste generated at another facility owned and operated by that generator or wholly-owned subsidiary.
  10. An application to construct a solid waste landfill shall consist of three (3) parts: a notice of intent to apply for a solid waste permit; an administrative application; and a technical application. Nothing in this section shall prohibit an applicant from submitting more than one (1) part at one (1) time.
    1. An applicant proposing to construct a solid waste landfill shall submit to the cabinet a notice of intent to apply for a solid waste permit. The notice of intent shall contain information specified by the cabinet. The cabinet shall within thirty (30) working days of receipt notify the applicant by certified mail, return receipt requested, of the approval or disapproval of the applicant’s notice of intent. If the notice of intent is not complete, the cabinet shall state in writing the information necessary to complete the notice of intent and the thirty (30) day time period shall be tolled until such time as the applicant responds. The cabinet shall notify the applicant of the approval or disapproval of the applicant’s notice of intent by certified mail, return receipt requested. If the cabinet disapproves a notice of intent to apply for a solid waste permit, it shall state in writing its reasons for the disapproval.
    2. The applicant shall submit an administrative application for a solid waste landfill consistent with the notice of intent to apply for a solid waste permit. The administrative application shall contain information specified by the cabinet. The cabinet shall within sixty (60) working days of receipt notify the applicant by certified mail, return receipt requested, of the approval or disapproval of the applicant’s administrative application. If the administrative application is not complete, the cabinet shall state in writing the information necessary to complete the administrative application and the sixty (60) day time period shall be tolled until such time as the applicant responds. The cabinet shall notify the applicant of the approval or disapproval of the applicant’s administrative application by certified mail, return receipt requested. If the cabinet disapproves an administrative application to apply for a solid waste permit, it shall state in writing its reasons for the disapproval.
    3. The applicant shall submit a technical application for a solid waste landfill consistent with the administrative application. The technical application shall contain information specified by the cabinet. The cabinet shall within ninety (90) working days of receipt notify the applicant by certified mail, return receipt requested, of the approval or disapproval of the applicant’s technical application. If the technical application is not complete, the cabinet shall state in writing the information necessary to complete the technical application and the ninety (90) day time period shall be tolled until such time as the applicant responds. The cabinet shall notify the applicant of the approval or disapproval of the applicant’s technical application by certified mail, returned receipt requested. If the cabinet disapproves a technical application to apply for a solid waste permit, it shall state in writing its reasons for the disapproval.
    4. The permit review process, from the date of receipt of the notice of intent to the date the cabinet issues a draft permit to construct a solid waste landfill, or denies the application, shall not exceed three hundred sixty-five (365) calendar days, unless the cabinet and applicant agree otherwise. Failure of the cabinet to either issue a draft permit, or deny the application, within three hundred sixty-five (365) calendar days shall be deemed an order appealable pursuant to the provisions of KRS 224.10-420 .
    5. If the cabinet does not request additional information or notify the applicant of the disapproval of the notice of intent or administrative application for a solid waste landfill within the time periods specified in this subsection, that portion of the application under review shall be deemed complete and approved, unless the cabinet and applicant agree otherwise.
  11. During construction of a liner system in a solid waste landfill, the cabinet shall periodically conduct inspections to verify that construction is being made in accordance with administrative regulations adopted by the cabinet and conditions contained in the permit. Except as otherwise provided in this section, the permittee shall not commence installation of any synthetic liner prior to a final inspection of any soil liner. The cabinet shall respond to any request for an inspection within two (2) working days of the request. If the cabinet fails to inspect within two (2) working days, the permittee may proceed to the next phase of construction, including installation of a synthetic liner, after submitting certification from a registered professional engineer that construction has been completed in accordance with applicable regulations and permit conditions. All inspections conducted for the cabinet shall be performed by a professional engineer registered in Kentucky.
  12. An applicant who is issued a permit to construct or expand, when the expansion results in substantial additional capacity, a solid waste landfill shall be issued a permit to operate in the areas included under the construction permit without further action when:
    1. The applicant submits a certification by an engineer registered in Kentucky that the liner system and facilities are constructed in accordance with the approved plans and specifications;
    2. A registered professional engineer for the cabinet inspects the facility and verifies in writing within ten (10) days of the submission of the engineer certification that the facility has been developed according to plans and that necessary equipment is available to operate the facility; and
    3. The required financial responsibility for closure has been established using any of the mechanisms required by KRS 224.40-650 in an amount determined by an approved closure plan and cost estimate.
  13. A permit issued pursuant to this section shall carry with it the right of successive renewal upon expiration with respect to areas within the boundaries of the existing permit. The permittee may request renewal and such renewal shall be issued unless it is established and written findings are made by the cabinet that:
    1. The terms and conditions of the existing permit, this chapter, or applicable administrative regulations adopted by the cabinet are not being satisfactorily met;
    2. The permittee has not provided evidence that any performance bond in effect will continue in full force and effect for any renewal requested as well as any additional bond the cabinet might require;
    3. Any additional revised or updated information required by the cabinet has not been provided.
  14. Any permit renewal shall be for a term not to exceed the period of original permit. Application for permit renewal shall be made at least one hundred eighty (180) days prior to the expiration of the existing permit. At the time of filing an application for permit renewal, the cabinet shall publish a notice in a daily or weekly newspaper of the largest circulation in the county where the solid waste landfill is located. The notice shall include the following:
    1. The name and address of the applicant;
    2. Identification of the permit for which the renewal is sought; and
    3. A statement informing the public of a thirty (30) day period in which public comments may be submitted to the cabinet on whether the renewal of the permit should be approved pursuant to subsection (13) of this section.
  15. The cabinet shall not adopt any regulation or standard or allow any exemption which applies to privately-owned solid waste management facilities more stringently than it applies to publicly- or municipally-owned solid waste management facilities.

History. Enact. Acts 1974, ch. 55, § 1, effective June 21, 1974; 1978, ch. 113, § 10, effective June 17, 1978; 1980, ch. 188, § 129, effective July 15, 1980; 1980, ch. 264, § 11, effective July 15, 1980; 1980, ch. 284, § 5, effective July 15, 1980; 1982, ch. 279, § 12, effective July 15, 1982; 1984, ch. 111, § 188, effective July 13, 1984; 1988, ch. 26, § 1, effective March 4, 1988; 1988, ch. 44, § 1, effective July 15, 1988; 1991 (1st Ex. Sess.), ch. 12, § 37, effective February 26, 1991.

Compiler’s Notes.

This section was formerly compiled as KRS 224.855 .

The Comprehensive Environmental Compensation and Liability Act of 1980 (Public Law 96-510), referred to in this section, is compiled as 42 USCS § 9601 et seq.

Opinions of Attorney General.

A county fiscal court can, without a planning and zoning commission, pass an ordinance to prohibit chemical plants, hazardous waste incinerators and disposal plants, and sludge landfills for hazardous and nonhazardous materials or to require a permit from the fiscal court, even though the proposals meet all state requirements, since subsection (5) of this section permits the fiscal court to hold public hearings on such proposals and to deny a permit, thus preventing the state from licensing such a facility. OAG 81-189 .

Research References and Practice Aids

Kentucky Law Journal.

Stephens, Commencing the Decade With Environmental Reform: The 1980 Kentucky General Assembly Implements the Resource Conservation and Recovery Act of 1976, 69 Ky. L.J. 227 (1980-81).

Cox, What May States Do About Out-of-State Waste in Light of Recent Supreme Court Decisions Applying the Dormant Commerce Clause? Kentucky As Case Study in the Waste Wars, 83 Ky. L.J. 551 (1994-95).

224.40-315. Requirements for acceptance and approval of permits to construct or expand municipal solid waste disposal facility.

  1. No permit to construct or expand a municipal solid waste disposal facility shall be accepted for processing by the cabinet unless the application contains a determination from the governing body for the solid waste management area in which the facility is or will be located concerning the consistency of the application with the area solid waste management plan submitted under KRS 224.43-345 (1)(a) to (d) and (l) until January 1, 1993, and the entire plan after January 1, 1993. The governing body for the area shall, within sixty (60) days of receipt of a written request, make the determination after public notice and opportunity for public comment and public hearing. For applications with a notice of intent filed prior to February 26, 1991, the cabinet shall continue to process the application but no permit shall be approved until the governing body for the solid waste management area in which the facility is or will be located has made a determination in accordance with this section.
  2. No permit to construct or expand a municipal solid waste disposal facility shall be approved unless the applicant affirmatively demonstrates and the cabinet makes a written finding in the preliminary determination made pursuant to KRS 224.40-310 (2) that the application conforms to and is consistent with all of the following:
    1. The capacity needs identified in the area solid waste management plan;
    2. Other elements of the area solid waste management plan, for permit applications filed after approval of those elements;
    3. The statewide solid waste reduction and management plan, for permit applications filed after completion of the plan; and
    4. Applicable zoning regulations adopted pursuant to KRS Chapter 100.
  3. If the cabinet approves a permit to construct or expand a municipal solid waste management facility after the governing body for the area has determined the application to be inconsistent with the area solid waste management plan, as part of the written finding the cabinet shall state in detail the reasons why it did not accept the determination of the governing body for the area.
  4. For the purposes of this section, the term municipal solid waste disposal facility includes, in addition to those facilities defined in KRS 224.1-010 (14), any residual or contained landfill or incinerator disposing of industrial solid waste for a fee, but does not include a waste site or facility which is operated exclusively by a solid waste generator on property owned by the solid waste generator which accepts only industrial solid waste from the solid waste generator or industrial solid waste generated at another facility owned and operated by the generator or wholly-owned subsidiary.

HISTORY: Enact. Acts 1991 (1st Ex. Sess.), ch. 12, § 17, effective February 26, 1991; 2017 ch. 117, § 22, effective June 29, 2017.

Compiler’s Notes.

This section was formerly compiled as KRS 224.856 .

Legislative Research Commission Note.

(10/4/91). The reference to KRS 224.40-310 (1) (formerly KRS 224.855 (1)) contained in subsection (2) of this statute has been changed by the Reviser of Statutes to KRS 224.40-310 (2), pursuant to KRS 7.136 . The text of the subsection (1) of the former 224.855 became (2) by 1991 (First Extra. Sess.) Ky. Acts ch. 12, sec. 37.

NOTES TO DECISIONS

1.Franchise.

Contract between the county fiscal court and private company for disposal of solid waste in a privately-owned landfill was a grant of a privilege or franchise granted in violation of the advertisement and public bidding requirements of Ky. Const., § 164. KRS Chapters 67, 109 and 224 establish that the General Assembly has placed in the counties primary responsibility and authority for the exclusive management of solid waste. County fiscal court was exercising its governmental, rather than proprietary, function in contracting with a private company for the construction and operation of the proposed landfill. Solid waste disposal requires a franchise whether it is performed by private parties or on private property. Eastern Ky. Resources v. Arnett, 934 S.W.2d 270, 1996 Ky. LEXIS 118 ( Ky. 1996 ).

2.Requirements Not Met.

Fiscal court had the responsibility for the management and disposal of solid waste within its jurisdiction under KRS 67.083(3), KRS 109.041(1), and KRS 224.40-315 (1), so the argument that its contract granting a solid waste company the right to expand its landfill did not grant a franchise because a franchise could not be granted for the sale of a commercial product that was not the product of a government, but was a business which was open to all, was without merit. BFI Waste Sys. of N. Am., Inc. v. Huntington Woods Neighborhood Ass'n, 134 S.W.3d 624, 2003 Ky. App. LEXIS 295 (Ky. Ct. App. 2003).

Cited:

Eastern Ky. Resources v. Fiscal Court, 127 F.3d 532, 1997 U.S. App. LEXIS 28528 (6th Cir. 1997), cert. denied, 523 U.S. 1072, 118 S. Ct. 1512, 140 L. Ed. 2d 666, 1998 U.S. LEXIS 2530, 66 U.S.L.W. 3686, 47 Env’t Rep. Cas. (BNA) 1064 (1998).

Opinions of Attorney General.

Since the four subsections of this section are internally inconsistent, Senate Bill No. 2, Acts 1991 (Ex. Sess.) ch. 12, did not give a local solid waste management area’s governing body the authority to determine whether management facilities (which are not disposal facilities) are consistent with the local solid waste management plan. OAG 93-67 .

Research References and Practice Aids

Kentucky Law Journal.

Cox, What May States Do About Out-of-State Waste in Light of Recent Supreme Court Decisions Applying the Dormant Commerce Clause? Kentucky As Case Study in the Waste Wars, 83 Ky. L.J. 551 (1994-95).

224.40-320. Processing of permit applications — Time frame to be established — Burden of proof — Requirement for specific findings.

  1. The cabinet shall establish by administrative regulation a time frame for the review and issuance or denial of applications for a solid waste management facility permit or modification.
  2. The applicant shall have the burden of establishing that the application complies with all requirements of KRS Chapter 224 and the administrative regulations adopted by the cabinet. The cabinet shall make specific findings with respect to the compliance of the application with this chapter and the regulations of the cabinet.

History. Enact. Acts 1991 (1st Ex. Sess.), ch. 12, § 25, effective February 26, 1991.

Compiler’s Notes.

This section was formerly compiled as KRS 224.8565 .

224.40-325. Grounds for denial of permit.

Failure on the part of any applicant to demonstrate financial responsibility to construct and operate the waste site or facility in accordance with the administrative regulations promulgated by the cabinet shall be the grounds for denial of a permit.

History. Enact. Acts 1974, ch. 55, § 2, effective June 21, 1974; 1991 (1st Ex. Sess.), ch. 12, § 39, effective February 26, 1991.

Compiler’s Notes.

This section was formerly compiled as KRS 224.860 .

224.40-330. Disclosure of background information — Effect on permit — Exemptions — Cabinet’s authority to establish other grounds.

  1. The cabinet may revoke, modify, suspend, or deny a permit for a waste site or facility if the applicant, or any of its key personnel, has:
    1. Intentionally misrepresented or concealed any material fact in the application;
    2. Obtained or attempted to obtain the permit by misrepresentation or concealment;
    3. Been convicted by final judgment of any felony within five (5) years preceding the filing of the application;
    4. Been adjudged by an administrative agency or a court to have violated the environmental protection laws or administrative regulations of the United States, the Commonwealth, or any other state, and the cabinet determines that the conviction or adjudication is sufficiently probative of the applicant’s inability or unwillingness to operate the facility in a lawful manner as to warrant revocation, modification, suspension, or denial of the permit. In making the determination, the cabinet shall consider:
      1. The nature and details of the acts attributed to key personnel;
      2. The degree of culpability of the applicant, if any;
      3. The applicant’s policy or history of discipline of key personnel for such activities;
      4. Whether the applicant has substantially complied with all rules, administrative regulations, permits, orders, and statutes applicable to the applicant’s activities in Kentucky;
      5. Whether the applicant has implemented formal management controls to minimize and prevent the occurrence of these violations; and
      6. Mitigation based upon demonstration of good behavior by the applicant, including prompt payment of damages, cooperation with investigations, termination of employment or other relationship with key personnel or other persons responsible for the violations, or other demonstrations of good behavior by the applicant that the cabinet finds relevant to its decision.
    1. Before an application for the issuance, renewal, or transfer of a permit for a solid waste management facility may be granted or before there is a change in key personnel of the applicant, the applicant and each person who is a key personnel of the applicant shall submit to the cabinet a disclosure statement that meets the requirements set forth in subsection (2)(b) of this section and is executed under subsection (2)(c) of this section. (2) (a) Before an application for the issuance, renewal, or transfer of a permit for a solid waste management facility may be granted or before there is a change in key personnel of the applicant, the applicant and each person who is a key personnel of the applicant shall submit to the cabinet a disclosure statement that meets the requirements set forth in subsection (2)(b) of this section and is executed under subsection (2)(c) of this section.
    2. In a disclosure statement required under this section, the applicant shall set forth the following information:
      1. The name, business address, and Social Security number of the applicant and its key personnel;
      2. A description of the applicant’s and its key personnel’s experience in managing solid and hazardous waste including any past or present permits or licenses held by the applicant or its key personnel within the previous five (5) years;
      3. A description of all civil and administrative complaints against the applicant and its key personnel for the violation of any state or federal environmental protection law that:
        1. Have resulted in a fine or penalty of more than one thousand dollars ($1,000) within five (5) years before the date of the submission of the application; or
        2. Allege an act or omission that constitutes a violation of a state or federal environmental protection law and that presented a substantial endangerment to the public health or the environment;
      4. A description of all pending criminal complaints alleging the violation of any state or federal environmental protection law that have been filed against the applicant and its key personnel within five (5) years before the date of submission of the application;
      5. A description of all judgments of criminal conviction entered against the applicant and its key personnel within five (5) years before the date of submission of the application for the violation of any state or federal environmental protection law;
      6. A description of all judgments of criminal conviction of a felony under the laws of any state or the United States that are entered against the applicant and its key personnel within five (5) years before the date of submission of the application; and
      7. The identification and location of all waste sites or facilities and solid waste management facilities in which the applicant or any of its key personnel has a financial or equitable interest, or is an officer, director, or manager;
    3. A disclosure statement submitted under subsection (2)(a) of this section shall be executed under oath or affirmation and shall be subject to the penalty for perjury under KRS Chapter 523;
    4. The cabinet shall investigate to verify the accuracy of the information set forth in a statement required under this section.
  2. No permit shall be issued to an applicant where the disclosure statement or other information available to the cabinet indicates that any waste site or facility owned or controlled by the applicant or its key personnel is currently in violation of this chapter or any law, rule, or regulation of the United States or of any department or agency in the United States pertaining to environmental protection, until the applicant submits proof that the violation has been corrected or is in the process of being corrected to the satisfaction of the regulatory authority, department, or agency which has jurisdiction over the violation, or that the violation is under appeal.
  3. The provisions of subsection (2) of this section shall not apply to an industrial solid waste disposal facility operated exclusively by the industrial solid waste generator on property owned by the industrial solid waste generator and which accepts only industrial solid waste exclusively from the industrial solid waste generator or wholly-owned subsidiary.
  4. This section shall not apply to a waste site or facility which is operated exclusively by a solid waste generator on property owned by the solid waste generator for the purpose of accepting industrial solid waste exclusively from the solid waste generator.
  5. This section shall not apply to a medical waste incinerator which is owned, operated, and located on the property of a hospital or university which is regulated by the cabinet and used for the purpose of treatment, prior to landfill, of medical waste received from the generator exclusively or in combination with medical waste generated by professionals or facilities licensed or regulated or operated by the Commonwealth.
  6. The provisions of this section shall not prohibit the cabinet from establishing by administrative regulation other grounds for the revocation, modification, suspension, or denial of a permit for a waste site or facility.
  7. The provisions of subsection (2) of this section shall not apply to renewals of permits for the treatment or storage of hazardous waste if the hazardous waste is generated at the same waste site or facility for which the treatment or storage permit has been issued.

History. Enact. Acts 1991 (1st Ex. Sess.), ch. 12, § 24, effective February 26, 1991; 1996, ch. 360, § 2, effective July 15, 1996.

Compiler’s Notes.

This section was formerly compiled as KRS 224.861 .

224.40-340. Permits to operators using incinerators.

The Energy and Environment Cabinet shall not revoke, refuse to issue or refuse to renew permits to operators of solid waste disposal sites or facilities solely because the operator uses an incinerator for disposing of solid waste material. Provided, however, that the cabinet shall be empowered to revoke, refuse to issue or refuse to renew solid waste disposal permits if the operator has not complied with its regulations relating to permits to use incinerators, refuse burners and open burning. This section shall not prevent the cabinet from revoking, refusing to issue or refusing to renew solid waste disposal permits due to the use of incinerators, refuse burning and open burning which it has not authorized.

History. Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 15, effective January 1, 1973; 1974, ch. 74, Art. III, § 13(2); 2010, ch. 24, § 365, effective July 15, 2010.

Compiler’s Notes.

This section was originally compiled as KRS 224.265 and was renumbered as KRS 224.840 prior to being renumbered as this section.

Legislative Research Commission Note.

(1988). A technical correction has been made in this section by the Reviser of Statutes pursuant to KRS 7.136 .

Operating Requirements

224.40-605. Training and certification of persons operating waste site.

  1. The cabinet shall promulgate regulations which establish standards for the operator of any waste site or facility or portion thereof, whether publicly or privately owned, requiring such operators to do the following:
    1. Attend a training session concerning the operation of the appropriate type of waste facility conducted by the Energy and Environment Cabinet;
    2. Indicate sufficient skill and competency for proper operation of the waste site by adequate performance on an examination prescribed by the Energy and Environment Cabinet;
    3. Pay a reasonable fee related to the cost of conducting training and certification sessions to be utilized to defray the cost of conducting the sessions; and
    4. Renew the certificates of competence at reasonable intervals.
  2. No person shall authorize or allow any person who does not hold a certificate issued pursuant to subsection (1) of this section to have primary responsibility for the operation of any waste site or facility or portion thereof.

History. Enact. Acts 1980, ch. 284, § 7, effective July 15, 1980; 1984, ch. 111, § 187, effective July 13, 1984; 2010, ch. 24, § 366, effective July 15, 2010.

Compiler’s Notes.

This section was originally compiled as KRS 224.882 and was renumbered as KRS 224.844 prior to being renumbered as this section.

Research References and Practice Aids

Kentucky Law Journal.

Stephens, Commencing the Decade With Environmental Reform: The 1980 Kentucky General Assembly Implements the Resource Conservation and Recovery Act of 1976, 69 Ky. L.J. 227 (1980-81).

Cox, What May States Do About Out-of-State Waste in Light of Recent Supreme Court Decisions Applying the Dormant Commerce Clause? Kentucky As Case Study in the Waste Wars, 83 Ky. L.J. 551 (1994-95).

224.40-650. Bond of operator — Release — Forfeiture to solid waste disposal site restoration fund — Amendment of permit — Successor operator — Reclamation by intergovernmental cooperation.

  1. Before the cabinet may issue a permit to operate a solid waste disposal facility, the operator shall file with the cabinet a bond payable to the Commonwealth of Kentucky with surety satisfactory to the cabinet in a sum to be determined by the cabinet on the recommendation of the secretary of each acre or fraction thereof of the area of land affected, with a minimum bond of ten thousand dollars ($10,000) per site, conditioned upon the faithful performance of the requirements in this chapter and of the rules and administrative regulations of the cabinet to insure satisfactory closure of the facility. The cabinet may accept liquid or semi-liquid assets deposited in an escrow account for the operating life of the landfill plus not less than two (2) additional years as an alternative guarantee of adequate financial responsibility for closure of the facility. The cabinet may accept other satisfactory financial assurance as adequate financial responsibility for a waste site or facility which is generated exclusively by a solid waste generator on property owned by the solid waste generator for the purpose of accepting industrial solid waste exclusively from the solid waste generator.
  2. An operator may at any time during the term of the permit apply to the cabinet for an amendment of the permit so as to increase or reduce the acreage affected by it. The operator shall file an application and map in the same form and with the same content as required for an original application under this chapter and shall pay a basic fee set by administrative regulation bearing a reasonable relationship to the cost of processing the permit application and shall file with the cabinet a supplemental bond for each acre or fraction of an acre of the increase approved. If the cabinet approved a reduction in the acreage covered by the original or supplemental permit, it shall release the bond for each acre reduced but in no case shall the bond for the site be reduced below ten thousand dollars ($10,000).
  3. When the facility has been filled, covered, graded, seeded, and revegetated according to regulations promulgated by the cabinet and approved by the cabinet the secretary shall release the bond or other guarantee of financial responsibility that has been provided to the cabinet. However, the bond or other guarantee of financial responsibility shall not be released earlier than two (2) years from the date of the last placement of waste at the facility. If such closure requirements are not accomplished by the operator of the facility, the cabinet shall forfeit the bond or demand release of the moneys held to guarantee financial responsibility.
  4. All funds from the forfeiture of bonds or other sureties required pursuant to this section shall be placed in the State Treasury and credited to a special trust and agency account which shall not lapse. Such account shall be known as the “Solid Waste Disposal Site Restoration Fund” and moneys placed in the fund shall be used for the proper closure of solid waste disposal facilities and insofar as practicable be used to correct the problems at the same site for which the bond or other sureties were originally provided.
  5. No operator or person shall be eligible to receive another permit to operate a solid waste management facility who has forfeited any bond or other surety provided pursuant to this section, unless the land for which the bond or other surety was forfeited has been reclaimed without cost to the state, or the operator or person has paid such sum as the cabinet finds is adequate to reclaim such lands.
  6. Where one (1) operator succeeds another at any solid waste disposal facility prior to final closure, either by sale, assignment, lease, or otherwise, the cabinet may release the first operator from all liability under this section, provided that the successor operator meets the requirements of this section and assumes, as part of his obligation under this chapter, all liability for the reclamation and final closure of the area of land affected by the former operation.
  7. In the reclamation of land affected by incomplete or improper closure of a solid waste disposal facility for which it has the funds available, the cabinet may avail itself of any services which may be provided by other state agencies or by agencies of the federal government, and may compensate them for such services. The cabinet may cause the reclamation work to be done by its own employees, by employees of other governmental agencies, or through contracts with qualified persons.
  8. The cabinet may also receive any federal funds, state funds or any other funds for the closure of solid waste disposal facilities.
  9. The cabinet, any other agency, and any person under a contract with the cabinet pursuant to this section shall have the right of access to the land affected to carry out such reclamation.
  10. No city, county, urban-county government or agency of a city, county, or urban-county government, or taxing district, or other political subdivision of the Commonwealth shall be required to file any surety bond with the cabinet pursuant to this section for the operation of a solid waste disposal facility by such city, county, urban-county government, or agency thereof, or taxing district, or any other political subdivision of the Commonwealth.

History. Enact. Acts 1980, ch. 284, § 8, effective July 15, 1980; 1986, ch. 199, § 1, effective July 15, 1986; 1991 (1st Ex. Sess.), ch. 12, § 36, effective February 26, 1991.

Compiler’s Notes.

This section was originally compiled as KRS 224.884 and was renumbered as KRS 224.846 prior to being renumbered as this section.

Research References and Practice Aids

Kentucky Law Journal.

Stephens, Commencing the Decade With Environmental Reform: The 1980 Kentucky General Assembly Implements the Resource Conservation and Recovery Act of 1976, 69 Ky. L.J. 227 (1980-81).

SUBCHAPTER 43. Solid Waste

General Provisions

224.43-010. Policy and purpose — Priorities for solid waste management practices — Findings relating to solid waste management plans.

  1. It is hereby declared to be the policy of this Commonwealth and the purpose of this chapter to provide for the management of solid waste, including reduction, collection, transportation, and disposal in a manner that will protect the public health and welfare, prevent the spread of disease and creation of nuisances, conserve our natural resources, and enhance the beauty and quality of our environment.
  2. It is the policy of the Commonwealth to limit and reduce the amount of solid waste disposed in municipal solid waste disposal facilities in the Commonwealth through reduction in the amount of waste generated, reuse of solid waste, waste recycling or yard waste composting, and resource recovery, and to encourage a regional approach to solid waste management.
  3. It is the policy of the Commonwealth that municipal solid waste disposal facilities that ceased accepting waste before July 1, 1992, undergo proper closure, characterization, and corrective action.
  4. It is the policy of the Commonwealth that a comprehensive and integrated waste management system to handle solid waste is to be fostered. State policies and funding assistance shall reflect a preference for projects and practices consistent with the policies and goals established by this section and the following:
    1. Education of the citizens of the Commonwealth regarding proper disposal of waste;
    2. Collection and proper disposal of all of solid waste for proper management;
    3. Elimination of illegal dumps throughout the Commonwealth; and
    4. Abatement of litter on state and county rights-of-way.
  5. It is the policy of the Commonwealth that existing illegal open dumps be eliminated and that new open dumps be prevented.
  6. The General Assembly finds that counties and waste management districts, when enabled by complete and accurate information relating to the municipal solid waste collection and management practices within the solid waste management area, are in the best position to make plans for municipal solid waste collection services for its citizens. The General Assembly also finds that assistance from the cabinet, combined with state financial incentives, can aid counties and waste management districts with implementing solid waste management plans.
  7. The General Assembly finds that the goal of reducing the amount of solid waste disposed of in municipal solid waste disposal facilities cannot be achieved without first identifying the amount of municipal solid waste generated statewide per capita, including the waste now disposed of in open dumps, and providing incentives for the elimination of existing open dumps and the prevention of new open dumps.

History. Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 12, effective January 1, 1973; 1978, ch. 113, § 6, effective June 17, 1978; 1991 (1st Ex. Sess.), ch. 12, § 2, effective February 26, 1991; 2002, ch. 342, § 1, effective July 15, 2002.

Compiler’s Notes.

This section was originally compiled as KRS 224.250 and was renumbered as KRS 224.830 prior to being renumbered as this section.

Legislative Research Commission Note.

(7/15/2002). A reference to “July 12, 1992” in subsection (3) of this statute as amended by 2002 Ky. Acts ch. 342, sec. 1, has been changed in codification to read “July 1, 1992,” to correct a manifest clerical or typographical error under KRS 7.136(1)(h).

NOTES TO DECISIONS

Cited:

Astro, Inc. v. Envtl. & Pub. Prot. Cabinet, 2007 Ky. App. LEXIS 175 (Ky. Ct. App. 2007).

Research References and Practice Aids

Kentucky Law Journal.

Cox, What May States Do About Out-of-State Waste in Light of Recent Supreme Court Decisions Applying the Dormant Commerce Clause? Kentucky As Case Study in the Waste Wars, 83 Ky. L.J. 551 (1994-95).

Northern Kentucky Law Review.

Natter, How Clean is Clean? Hazardous Waste/Hazardous Substance Cleanup Standards Under Kentucky Law, 18 N. Ky. L. Rev. 295 (1991).

224.43-020. Persons against whom provisions relating to improper disposal shall not be enforced.

The cabinet shall not enforce any provision of this chapter relating to improper disposal of solid waste against an owner, occupant, or person having control or management of any land if the owner, occupant, or person is not the generator of the solid waste or is not disposing or knowingly allowing the disposal of solid waste and has made reasonable efforts to prevent the disposal of solid waste by other persons onto the property.

History. Enact. Acts 1982, ch. 145, § 4, effective July 15, 1982; 1991 (1st Ex. Sess.), ch. 12, § 38, effective February 26, 1991.

Compiler’s Notes.

This section was formerly compiled as KRS 224.857 .

NOTES TO DECISIONS

1.Applicability.

Although a concrete waste pile was present when a new owner purchased a property, the owner was deemed to be maintaining an unpermitted waste site as both the owner and outsiders added additional solid waste to the pile. Because the owner failed to take measures to prevent additional solid waste from being added to the pile, the owner could not take advantage of the defense in KRS 224.43-020 . Astro, Inc. v. Envtl. & Pub. Prot. Cabinet, 2007 Ky. App. LEXIS 175 (Ky. Ct. App. June 8, 2007).

224.43-070. Solid Waste Management Legislative Task Force — Composition — Duties. [Repealed]

History. Enact. Acts 1991 (1st Ex. Sess.), ch. 12, § 43, effective February 26, 1991; 1994, ch. 486, § 30, effective July 15, 1994; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1991 (1st Ex. Sess.), ch. 12, § 43, effective February 26, 1991; 1994, ch. 486, § 30, effective July 15, 1994) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.43-080. Newsprint Recycling Task Force — Composition — Duties. [Repealed]

History. Enact. Acts 1994, ch. 500, § 2, effective July 15, 1994; 1998, ch. 61, § 2, effective July 15, 1998; 2010, ch. 24, § 367, effective July 15, 2010; 2010, ch. 135, § 4, effective July 15, 2010; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1994, ch. 500, § 2, effective July 15, 1994; 1998, ch. 61, § 2, effective July 15, 1998; 2010, ch. 24, § 367, effective July 15, 2010; 2010, ch. 135, § 4, effective July 15, 2010) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.43-090. Venue for appeal of agency action.

Exclusive venue for any appeal of a violation, determination, finding of noncompliance, or any other action of the Finance and Administration Cabinet, Energy and Environment Cabinet, or other state agency relating to any county, urban-county, charter county, consolidated local government, city, special district, or other governmental unit specified in this subchapter and KRS 30A.190 , 109.011 , 109.041 , 109.0415 , 224A.011 , 224A.100 , 431.100 , 433.753 , 433.757 , and 512.070 shall be in the court of competent jurisdiction of the county which is the subject of the action by the state agency.

History. Enact. Acts 2002, ch. 342, § 17, effective July 15, 2002; 2010, ch. 24, § 368, effective July 15, 2010.

Planning and Management

224.43-310. Cabinet designated solid waste official planning and management agency — Statewide solid waste reduction and management plan — Annual reports.

  1. The Energy and Environment Cabinet of the Commonwealth of Kentucky is designated as the official planning and management agency of the Commonwealth of Kentucky in the field of solid waste. The cabinet shall have primary responsibility for coordinating the solid waste planning and management activities of waste management districts, counties, cities, area development districts, and any combination thereof and for the approval of solid waste management facilities. In doing so it shall be the goal of the cabinet to reduce the amount of solid waste disposed in municipal solid waste disposal facilities within the Commonwealth and to encourage regional management of solid waste.
  2. The cabinet shall have the primary responsibility to develop, review, report on, and triennially update a statewide solid waste reduction and management plan. A draft plan shall be prepared and made available for public inspection by December 1, 1991; a proposed final plan shall be submitted to the General Assembly by February 1, 1992; and a final plan shall be submitted to the General Assembly by March 1, 1992. The plan shall be designed to address the following:
    1. Coordination of area plans and provision of support for area planning efforts;
    2. Elimination of existing open dumps and prevention of new open dumps;
    3. Proper closure, characterization, and corrective action for municipal solid waste disposal facilities that ceased accepting waste before July 1, 1992;
    4. Reductions in solid waste disposed in municipal solid waste disposal facilities within the Commonwealth by actively promoting reuse and reduction consistent with the policies and goals established by KRS 224.43-010 ;
    5. Adequate capacity exists for recycling or disposal of solid waste generated within the Commonwealth for five (5), ten (10), and twenty (20) year planning periods;
    6. Maintenance of disposal capacity for solid waste generated in the Commonwealth if the cabinet acts to close a solid waste management facility;
    7. Encouragement of regional alternatives for waste reduction and management in the planning process;
    8. Priority in grants and loans for projects and practices consistent with the policies and goals established by KRS 224.43-010 ;
    9. Minimum standards and procedures for solid waste management plans as established by the cabinet in administrative regulations;
    10. A description of the status of solid waste reduction and management efforts in Kentucky;
    11. Identification of state actions and responsibilities necessary to implement this chapter; and
    12. Identification of problems impeding the attainment of the policies and goals of this chapter.
  3. The statewide solid waste reduction and management plan shall not establish maximum disposal capacity limitations for the Commonwealth.
  4. The cabinet, beginning July 1, 1992, shall report annually to the Governor and to the General Assembly on the status of solid waste management in the Commonwealth. The report filed July 1, 1992, shall present the current status of solid waste planning and management in the Commonwealth. Subsequent annual reports shall include but not be limited to:
    1. The status of solid waste planning and management;
    2. The number and types of recycling and solid waste management facilities in the Commonwealth;
    3. The status of actions taken to:
      1. Eliminate existing open dumps and prevent new open dumps; and
      2. Undertake proper closure, characterization, and corrective action for municipal solid waste disposal facilities that ceased accepting waste before July 1, 1992;
    4. The remaining permitted capacity of each permitted solid waste management facility;
    5. The number and types of solid waste grants or loans made to cities, counties, waste management districts, and area development districts;
    6. A compilation and analysis of solid waste reduction and management data provided to the cabinet;
    7. A statement of progress achieved in meeting the policies and goals established by KRS 224.43-010 ;
    8. A statement of progress achieved in solid waste management education;
    9. A statement of progress achieved in establishing regional solid waste management approaches;
    10. Any revisions in the statewide solid waste reduction and management plan; and
    11. Recommendations for improving the reduction and management of solid waste in the Commonwealth.
  5. On March 1 of each year, each governing body shall report annually to the cabinet on the status of solid waste management in its area. The annual report shall include but not be limited to:
    1. The amount of in-area and out-of-area municipal solid waste disposed in municipal solid waste disposal facilities in the area;
    2. The total cumulative progress made toward meeting the policies and goals established by KRS 224.43-010 ;
    3. The remaining permitted capacity of disposal facilities;
    4. Recycling and composting activities in existence;
    5. Public information and education activities during the reporting period including public campaigns urging participation in a municipal solid waste collection system and public campaigns promoting anti-litter and anti-dumping behavior with an accounting by the governing body of funds spent, labor expended, volunteer time and money expended, and an estimation of the campaign’s effect;
    6. The number of households within the area served by the governing body and the methods of public or private municipal solid waste collection available to them, the cost to the households using the collection system, the percentage of households using each method of municipal solid waste collection available to them, the cost to the governing body of providing a municipal solid waste collection system, how the cost is paid for by the governing body, and the percentage of the cost that is recovered through service fees, including a complete accounting for collected fees, uncollected fees, and success in recovering uncollected fees;
    7. Progress made since the last report on cleaning up illegal open dumps, including the number of open dumps eliminated since the last report or the last solid waste management plan revision, the total and average cost per open dump elimination, and identification of new open dumps or cleaned up open dumps that have been used again for illegal dumping;
    8. Fees for solid waste management assessed and collected;
    9. Costs of any projects undertaken pursuant to the solid waste management plan; and
    10. Any other pertinent information as may be required by the cabinet.

History. Enact. Acts 1978, ch. 115, § 3, effective June 17, 1978; 1982, ch. 74, § 22, effective July 15, 1982; 1991 (1st Ex. Sess.), ch. 12, § 4, effective February 26, 1991; 1994, ch. 486, § 31, effective July 15, 1994; 2002, ch. 342, § 4, effective July 15, 2002; 2010, ch. 24, § 369, effective July 15, 2010.

Compiler’s Notes.

This section was formerly compiled as KRS 109.021 and was amended and reenacted as KRS 224.886 by Acts 1982, ch. 74, § 22 and was renumbered as this section by the Reviser of Statutes under authority of KRS 7.136 and 7.140 and confirmed by the Legislative Research Commission on July 10, 1991.

NOTES TO DECISIONS

1.Regulation of Facilities.

Subchapter 224.43 contains provisions whereby local governing bodies are authorized to regulate solid waste disposal. KRS 224.43-340 directs each county or solid waste management district to prepare a solid waste management plan for approval by the cabinet. Local government bodies are not preempted from regulating solid waste management facilities. Carpenter v. Commonwealth, 831 S.W.2d 188, 1992 Ky. App. LEXIS 88 (Ky. Ct. App. 1992).

Research References and Practice Aids

Kentucky Law Journal.

Cox, What May States Do About Out-of-State Waste in Light of Recent Supreme Court Decisions Applying the Dormant Commerce Clause? Kentucky As Case Study in the Waste Wars, 83 Ky. L.J. 551 (1994-95).

224.43-315. Requirement for county universal municipal solid waste collection program — Options — Registration and report of persons providing collection services — Annual report — Performance contract — Effect of failure to comply — Exclusion.

  1. Each county shall provide a universal collection program by October 1, 2003, for all municipal solid waste generated within the county. Collection programs may include one (1) or more of the following options:
    1. Door-to-door household collection: Collection service may be provided by the county, by contract, or franchise;
    2. Direct haul to staffed convenience centers or staffed transfer facilities within the county: The county may allow residents to haul their waste directly to cabinet-approved staffed convenience centers or staffed transfer facilities within the county. The number of convenience centers and transfer facilities shall be adequate to assure reasonable convenience; and
    3. Other alternatives proposed by counties: Counties may propose other alternatives including subscription service and unstaffed convenience centers, and the cabinet shall approve same as long as the county can demonstrate that all of its citizens are being given access to the solid waste collection system which is proposed.
  2. Beginning October 1, 2003, all persons providing collection service, including collection for the purpose of recycling, shall register annually with the counties in which they provide the service.
  3. Beginning March 1, 2004, all persons providing collection service, including collection for the purpose of recycling, shall report annually to the counties in which they provide the service. The reports shall include:
    1. The number of households, businesses, and industries from which municipal solid waste was being collected on October 1 of the previous year;
    2. The amount of municipal solid waste collected for disposal during the previous calendar year;
    3. The amount of municipal solid waste collected for recycling, by volume, weight, or number of items during the previous calendar year; and
    4. The types of items collected for recycling.
  4. The county shall submit an annual report to the cabinet and to any waste management district of which it is a member detailing its solid waste collection activities in accordance with this section and any requirements established by the cabinet by administrative regulation.
  5. The county may enter into agreements with any person for the performance of the responsibilities described in this section, including cities within its geographic boundaries, but the county shall be responsible for providing the universal collection program described in this section, except:
    1. Any designated city having sole responsibility for developing its portion of the solid waste plan shall be responsible for providing the universal collection within its jurisdiction; or
    2. Any city contracting for the collection of its solid waste on February 26, 1991, may continue to contract for the collection of its solid waste if the contract provides for disposal in accordance with the area solid waste management plan.
  6. Any agreement that the county enters into after June 29, 2017, for the collection of solid waste in a city that is not a designated city as defined in subsection (9) of this section within the solid waste management area shall include both the county and the city.
  7. If a county or city fails to comply with the provisions of this section, the Commonwealth shall not endorse projects that generate solid waste under the Kentucky intergovernmental review process for the county or city.
  8. A commercial or industrial entity which transports or contracts for the transport of the municipal solid waste it generates or which operates an industrial solid waste management facility for its exclusive use may be excluded from participation in the universal collection program, if the commercial or industrial entity demonstrates to the county that the solid waste generated is disposed of in accordance with applicable statutes and administrative regulations.
    1. As used in this section, “designated city” means a city of the first class or a city on the registry maintained by the Department for Local Government under paragraph (b) of this subsection. (9) (a) As used in this section, “designated city” means a city of the first class or a city on the registry maintained by the Department for Local Government under paragraph (b) of this subsection.
    2. On or before January 1, 2015, the Department for Local Government shall create and maintain a registry of cities that, as of August 1, 2014, were classified as cities of the second class. The Department for Local Government shall make the information included on the registry available to the public by publishing it on its Web site.

HISTORY: Enact. Acts 1991 (1st Ex. Sess.), ch. 12, § 16, effective February 26, 1991; 2017 ch. 48, § 3, effective June 29, 2017.

NOTES TO DECISIONS

1.Authority to Regulate.

Because a City did not continue to contract for the collection of solid waste after the effective date of KRS 224.43-315 , the County had the exclusive authority to regulate the collection under KRS 67.083(3)(o), (7)(b), and KRS 109.011 ; therefore, the trial court properly granted summary judgment to the County. City of Salyersville v. Magoffin County, 178 S.W.3d 539, 2005 Ky. App. LEXIS 242 (Ky. Ct. App. 2005).

Research References and Practice Aids

Kentucky Law Journal.

Cox, What May States Do About Out-of-State Waste in Light of Recent Supreme Court Decisions Applying the Dormant Commerce Clause? Kentucky As Case Study in the Waste Wars, 83 Ky. L.J. 551 (1994-95).

224.43-320. Inspectors for municipal solid waste landfills — Exception. [Repealed]

History. Enact. Acts 1991 (1st Ex. Sess.), ch. 12, § 41, effective February 26, 1991; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1991 (1st Ex. Sess.), ch. 12, § 41, effective February 26, 1991) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.43-330. Records and reporting requirements.

  1. It shall be the responsibility of the owner or operator of each municipal solid waste disposal facility to keep an accurate written record of all amounts of solid waste measured in tons received at the facility. Measurement in tons of solid waste received shall be accomplished by the provision of stationary or portable scales at the disposal facility for weighing incoming waste.
  2. The owner or operator of each municipal solid waste disposal facility shall report quarterly to the cabinet, the county in which the facility is located, and the waste management district in which the facility is located the amount of household, commercial, and industrial solid waste measured in tons received at the facility and the geographical source of the waste.
  3. Persons operating solid waste management facilities or engaged in the collection or transportation of solid waste shall provide upon request of the cabinet information on fees charged for the collection, transportation, or disposal of solid waste. Information on fees collected by the cabinet shall be included in the annual report to the Governor and the General Assembly required by KRS 224.43-310 (4).

History. Enact. Acts 1991 (1st Ex. Sess.), ch. 12, § 3, effective February 26, 1991.

Compiler’s Notes.

This section was formerly compiled as KRS 224.833 .

Research References and Practice Aids

Kentucky Law Journal.

Cox, What May States Do About Out-of-State Waste in Light of Recent Supreme Court Decisions Applying the Dormant Commerce Clause? Kentucky As Case Study in the Waste Wars, 83 Ky. L.J. 551 (1994-95).

224.43-335. Requirement of creation of manifest system — Contents of manifest — Reporting — Necessity of manifest for acceptance of waste.

In order to assist in solid waste planning and management, to further the goals of waste reduction and recycling, and to assist in identification of parties in the event of environmental problems arising from the transport or disposal of the waste, the cabinet shall adopt administrative regulations creating a manifest system which shall require that each shipment of waste received at a municipal solid waste disposal facility or transfer facility be accompanied by written documentation in a form determined by the cabinet. The manifest shall identify the geographic source or sources of the waste, by county, city, and state; contain a description of the types of waste contained in the shipment; list the names and addresses of each transporter of the waste; and list the names and addresses of each solid waste management facility which handled the waste; and each broker who arranged or contracted for the transportation or disposal of the waste. Each municipal solid waste disposal facility shall indicate on the manifest the amount of waste by weight received from each transporter, and each transfer facility shall indicate on the manifest the amount of waste by weight received from each transporter and the amount of waste shipped from the facility for handling or disposal in Kentucky. The manifest shall provide a certification by each person named in the manifest that while the waste was in his custody or control no waste regulated by the cabinet as hazardous waste or infectious waste was knowingly introduced into the waste. A copy of each manifest shall be maintained at the municipal solid waste disposal facility and any transfer facility handling the waste, and shall be open to inspection by representatives of the cabinet, shall be transmitted to the cabinet on a quarterly basis, and shall be considered nonexempt records available for public inspection. Ninety (90) days after the effective date of the initial administrative regulations adopted by the cabinet to effectuate this section, no municipal solid waste disposal facility or transfer facility shall accept waste unless it is accompanied by a manifest.

History. Enact. Acts 1988, ch. 44, § 2, effective July 15, 1988; 1991 (1st Ex. Sess.), ch. 12, § 28, effective February 26, 1991.

Compiler’s Notes.

This section was formerly compiled as KRS 224.849 .

Research References and Practice Aids

Kentucky Law Journal.

Cox, What May States Do About Out-of-State Waste in Light of Recent Supreme Court Decisions Applying the Dormant Commerce Clause? Kentucky As Case Study in the Waste Wars, 83 Ky. L.J. 551 (1994-95).

224.43-340. Regulations — Solid waste management plan — Designation of solid waste management areas — Enforcement representatives.

  1. The cabinet shall promulgate administrative regulations pursuant to KRS Chapter 224 for the reduction and management of solid waste, consistent with the statewide solid waste reduction and management plan, the goals established by KRS 224.43-010 , and the provisions of KRS Chapter 109.
  2. Waste management districts, counties, or any combination thereof, shall confer and determine which shall submit to the cabinet a solid waste management plan. The plan shall address municipal solid waste management needs for the area. Each county shall be responsible for implementing the plan, except that any city that develops the portion of the area plan applicable to its jurisdiction under KRS 224.43-315 shall be responsible for implementing the portion of the plan prepared by the city. However, if a county participates in a regional solid waste management area, then the governing body of the solid waste management area shall be responsible for implementing those components of the plan it is assuming on behalf of the county. In counties containing a consolidated local government, all municipalities therein shall be deemed to be participating in the solid waste management plan adopted by the waste management district unless a municipality shall, by ordinance, specifically opt out of the plan, in which event the municipality shall comply with all requirements of KRS Chapter 224 and administrative regulations promulgated pursuant thereto. However, the cabinet shall not disapprove a solid waste management plan for a single county or municipality within a consolidated local government if the plan complies with the requirements of KRS Chapter 224 and administrative regulations adopted by the cabinet. Plans shall be updated once every five (5) years. Plans may be amended and such amendments shall be submitted to the cabinet for review and approval. The review and approval of the cabinet shall be limited to a determination of whether the proposed amendments are in conformity with KRS 224.43-345 and the statewide solid waste reduction and management plan and KRS Chapter 224 and administrative regulations adopted by the cabinet.
  3. A county may delegate responsibility for preparing all or portions of the plan to one (1) or more cities within the county. Such delegation of responsibility shall be made only with the mutual agreement of the city and county. Each city and county shall be included in a solid waste management plan.
  4. Cities authorized under KRS 224.43-315 shall have the sole responsibility for developing and preparing the portion of the solid waste management plan applicable to the jurisdiction of the city, unless the city elects to have the county prepare the plan. If the city prepares the solid waste management plan for its jurisdiction, the city plan shall be incorporated within the area plan prior to its submission to the cabinet. The plan developed by the city, to the extent practicable, shall be reasonably consistent with the plan developed by the county. The cabinet, as a part of the area plan approval process, shall determine whether the city portion of the area plan is reasonably consistent with the overall area plan so as to effectuate the purposes of this chapter.
  5. Cities, other than those authorized under KRS 224.43-315 , operating solid waste management facilities or services, or who contracted with a person to provide such services on or before July 13, 1984, and pay a pro rata share of the cost of plan development may assume joint responsibility with a county for plan development. Where joint responsibility for plan development is assumed, both the county fiscal court and city legislative body must adopt the plan before it is submitted to the cabinet for approval.
  6. Counties, waste management districts, or any combination thereof preparing the solid waste management plan shall apply for and be designated as a solid waste management area. The application shall be submitted by June 1, 1991. The application shall include but not be limited to:
    1. A brief description of existing disposal capacity and of the capability of the proposed area to effectively manage solid waste;
    2. Resolution of the fiscal courts of all counties in the proposed area approving the application for designation;
    3. Resolution of those city legislative bodies in the proposed area that are currently operating solid waste management facilities or services and will participate in and provide financial assistance in plan development;
    4. Any agreement or contract necessary to establish the proposed area; and
    5. Resolution of the boards of any existing waste management districts located within the proposed area approving the application for designation.
  7. The jurisdiction of the solid waste management area shall be limited to the geographical area established or designated by the cabinet in accordance with the provisions of this chapter unless the preparer submits justification for any deviation therefrom acceptable to the cabinet.
  8. Upon receipt of such application, the cabinet shall, within thirty (30) days either approve the creation of a proposed solid waste management area or shall disapprove such application, and in the event of disapproval shall state in writing the reasons for such disapproval. Any changes in the application contents shall be submitted to the cabinet.
  9. Solid waste management areas shall be designated for five (5) year periods. At the end of five (5) years, the plan shall be updated and reapproved by the cabinet.
  10. If the cabinet does not receive on behalf of a county a solid waste management plan and the application for a solid waste management area in which the county will participate required by this section and KRS 224.43-345 , the cabinet may develop a solid waste management plan for that county or may place that county in a designated solid waste management area.
  11. If the solid waste management plan for a county is not implemented, the Commonwealth shall not endorse projects that generate solid waste under the Kentucky intergovernmental review process for that county.
  12. The governing body of a solid waste management area may employ an enforcement representative to ensure compliance with applicable regulations of the cabinet relating to construction and operation of municipal solid waste management facilities. The enforcement representative shall possess at least minimum qualifications required of representatives of the cabinet performing similar functions.

HISTORY: Enact. Acts 1978, ch. 115, § 4, effective June 17, 1978; 2017 ch. 105, § 4, effective March 21, 2017.

NOTES TO DECISIONS

1.Regulation of Facilities.

Subchapter 224.43 contains provisions whereby local governing bodies are authorized to regulate solid waste disposal. This section directs each county or solid waste management district to prepare a solid waste management plan for approval by the cabinet. Local government bodies are not preempted from regulating solid waste management facilities. Carpenter v. Commonwealth, 831 S.W.2d 188, 1992 Ky. App. LEXIS 88 (Ky. Ct. App. 1992).

2.Assessment of License Fees.

Since counties may regulate solid waste facilities, it follows that KRS 68.178 , which allows counties to assess license fees for solid waste landfills, is not inconsistent with Subchapter 43 of Chapter 224. This conclusion is bolstered by a recent amendment to KRS 224.43-310 , which directs each governing body, beginning January 1, 1993, to report annually to the cabinet regarding, among other concerns, the fees assessed and collected for solid waste management. Carpenter v. Commonwealth, 831 S.W.2d 188, 1992 Ky. App. LEXIS 88 (Ky. Ct. App. 1992).

Research References and Practice Aids

Kentucky Law Journal.

Cox, What May States Do About Out-of-State Waste in Light of Recent Supreme Court Decisions Applying the Dormant Commerce Clause? Kentucky As Case Study in the Waste Wars, 83 Ky. L.J. 551 (1994-95).

224.43-345. Contents of area solid waste management plan — Approval by cabinet.

  1. Each area solid waste management plan shall be prepared in accordance with any administrative regulations of the cabinet and shall be required to include the following:
    1. Identification of the area that will be included in the plan;
    2. A demographic study of the planning area of current and projected populations five (5), ten (10) and twenty (20) years in the future. A projection of the amount and source of solid waste generated, collected, and requiring disposal at municipal solid waste disposal facilities for each of these time periods shall be provided;
    3. An inventory and description of all existing solid waste management facilities and activities. The description shall include their identity, location, life expectancies, ownership, cost to the users, and level of compliance with state and federal laws. The description is not required to include any solid waste management facility which is operated exclusively by a solid waste generator on property owned by the solid waste generator for the purpose of accepting solid waste from the solid waste generator or waste generated at another facility owned and operated by the generator or wholly owned subsidiary. After commencement of operation by a solid waste generator of a solid waste disposal facility which is permitted but not included in a solid waste management plan, an amendment to a solid waste management plan shall be required for any solid waste which is to be no longer disposed by the solid waste generator in its own solid waste disposal facility;
    4. An estimate of the area’s long-range needs for solid waste management and facilities for five (5), ten (10), and twenty (20) years into the future;
    5. Identification and assessment of current and future solid waste management problems faced by the area. List any deficiencies with existing solid waste management facilities in meeting current and future area needs, and identify opportunities for improvement;
    6. Outline short-term, mid-term, and long-term goals and objectives of the solid waste management area. The goals and objectives shall be consistent with the policies and goals set out in KRS 224.43-010 ;
    7. Based on the problems, needs, goals, and objectives previously identified, identify alternative approaches to solid waste management and select the optimal alternatives. Solid waste management activities and facilities to be addressed include:
      1. Identification of those regulations and ordinances which provide for proper, safe, and sanitary management of solid waste;
      2. A description of proposed improvements to existing solid waste collection and transportation systems necessary to achieve universal collection;
      3. Establishment of a siting procedure and development program to assure the orderly location, development, and financing of new or expanded municipal solid waste management facilities. The plan shall demonstrate how all persons in the planning area will within the near future have reasonable opportunity to dispose of their waste in a manner that complies with state and federal laws;
      4. Identification of planned programs for the control and cleanup of litter and open dumps. The programs shall include: identification of an approved schedule for the cleanup of open dumps in existence as of October 1, 2002; an annual survey of the planning area to discover new open dumps which shall then be scheduled for cleanup within one (1) year unless the cabinet approves a longer schedule; measures to prevent the recurrence of dumping at sites which are cleaned up; cleanup of litter along public roads three (3) times per year; and cleanup of litter along city streets two (2) times per year. In these public road cleanups and also open dump cleanups, nonviolent misdemeanant and Class D felon inmate laborers may be used. A county that does not receive in any year an allocation from the Kentucky pride fund sufficient to complete the number of road cleanups provided for in this section shall not be deemed out of compliance;
      5. An assessment of opportunities to reduce the need for land disposal by banning grass clippings, leaves, and other yard wastes from municipal solid waste disposal facilities and the institution of composting operations for grass clippings, leaves, and other yard wastes;
      6. Establishment of a plan to reduce the need for land disposal through waste reduction and recycling, materials recovery, and energy recovery and the provision of opportunities for recycling that may include, but are not limited to, drop-off centers or door-to-door collection. Where recycling or material recovery is not deemed feasible, specific factual analysis shall be provided to support the conclusion; and
      7. A description of any proposed recycling, materials recovery, or energy recovery plan or facility;
    8. A five (5) year schedule and description of activities to be undertaken to implement the proposed plan;
    9. A description of short-term costs of the plan including capital and operational costs for each element of the plan, and the identification of the means of financing plan implementation;
    10. Designation of the governing body for implementation of the solid waste management plan or components of the plan. A description of its responsibilities and authority shall be provided;
    11. A description of proposed surveillance and enforcement procedures to assure that solid waste in the planning area is properly managed. Identification of modifications to local laws and regulations necessary to implement the area plan;
    12. Specific provisions to assure that adequate capacity for a ten (10) year period shall be available for municipal solid waste generated in the solid waste management area, and identification of any additional capacity authorized for disposal of out-of-area municipal solid waste;
    13. Contractual agreements for use of waste disposal capacity at any municipal solid waste disposal facility inside or outside the waste management area identified and relied upon in the plan;
    14. Provisions to assure achievement of the policies and goals of KRS 224.43-010 ;
    15. Establishment of a public information and participation process including the following components:
      1. Formation of an advisory committee composed of local residents; business and industry representatives; and, with respect to collection of solid waste, representatives of any city that is located within the solid waste management area, is not a designated city as defined in KRS 224.43-315 (9), and is not located within a county containing a consolidated local government;
      2. Preparation of a draft plan for public notice and comment;
      3. Convening of a public hearing upon request; and
      4. Publication of a response to public comments.
  2. A solid waste management plan complying with subsection (1) of this section shall be submitted to the cabinet by October 1, 2002, and updated every five (5) years thereafter. The cabinet shall make its determination approving or disapproving a plan within one hundred twenty (120) days of receipt. A plan on which the cabinet has not yet made a determination shall remain in effect until the determination is made.

HISTORY: Enact. Acts 1978, ch. 115, § 5, effective June 17, 1978; 1982, ch. 74, § 24, effective July 15, 1982; 1984, ch. 398, § 5, effective July 13, 1984; 1991 (1st Ex. Sess.), ch. 12, § 6, effective February 26, 1991; 2002, ch. 342, § 6, effective July 15, 2002; 2017 ch. 48, § 4, effective June 29, 2017.

Compiler’s Notes.

This section was formerly compiled as KRS 109.031 and was amended and reenacted as KRS 224.888 by Acts 1982, ch. 74, § 24 and was renumbered as this section by the Reviser of Statutes under authority of KRS 7.136 and 7.140 and confirmed by the Legislative Research Commission on July 10, 1991.

NOTES TO DECISIONS

Cited:

Eastern Ky. Resources v. Fiscal Court, 127 F.3d 532, 1997 U.S. App. LEXIS 28528 (6th Cir. 1997), cert. denied, 523 U.S. 1072, 118 S. Ct. 1512, 140 L. Ed. 2d 666, 1998 U.S. LEXIS 2530, 66 U.S.L.W. 3686, 47 Env’t Rep. Cas. (BNA) 1064 (1998).

Research References and Practice Aids

Kentucky Law Journal.

Cox, What May States Do About Out-of-State Waste in Light of Recent Supreme Court Decisions Applying the Dormant Commerce Clause? Kentucky As Case Study in the Waste Wars, 83 Ky. L.J. 551 (1994-95).

224.43-350. Suspension of authority to accept waste.

  1. In addition to its other powers, the cabinet may suspend the authority of a municipal solid waste management facility to accept waste streams upon any of the following grounds:
    1. The cabinet finds that any shipment of waste contains waste excluded by law from municipal solid waste disposal facilities in the Commonwealth;
    2. Any part of the waste streams in question are being transported by transporters who are not registered or certified in the Commonwealth in accordance with KRS 174.450 .
  2. The suspension described in subsection (1) of this section shall terminate upon the cabinet’s determination that the basis for the suspension has been corrected.

History. Enact. Acts 1991 (1st Ex. Sess.), ch. 12, § 20, effective February 26, 1991.

Compiler’s Notes.

This section was formerly compiled as KRS 224.8893 .

224.43-352. Notice to local governments of solid waste disposal facility’s violation of permit.

Within seven (7) days of issuing a notice of violation to a contained landfill operating as a municipal solid waste disposal facility as defined in KRS 224.1-010 for noncompliance with a condition of its permit issued by the Division of Waste Management where the noncompliance has off-site impacts, the cabinet shall send a copy of the notice of violation to the county/judge executive of the county or the chief executive officer of the urban-county government within which the contained landfill is located.

HISTORY: 2019 ch. 78, § 2, effective June 27, 2019.

224.43-360. Limitation on increases in amount of waste accepted — Exceptions — Revision of limitation by cabinet.

  1. Consistent with requirements of KRS Chapter 224, increases in the amount of waste from any geographic source permitted to be accepted by any municipal solid waste disposal facility shall not exceed more than five percent (5%) of the average volume of waste accepted during the twelve (12) month period January 1990 through December 1990 unless:
    1. The facility has been constructed in accordance with the most stringent containment standards effective January 1, 1991; or
    2. The facility meets a design standard of at least twelve (12) inches of soil with a maximum permeability of one (1) times ten (10) to the minus seven (7) power centimeters per second or its equivalent, has a leachate collection system installed in a manner approved by the cabinet, and has a groundwater monitoring system approved by the cabinet.

      A municipal solid waste disposal facility meeting the requirements of subsection (1)(b) of this section shall not accept waste for disposal after July 1, 1995, unless it meets the most stringent containment standards effective January 1, 1991.

  2. The cabinet shall revise upward or downward the limitation contained in subsection (1) of this section if it determines that the revision is necessary to be consistent with the statewide solid waste reduction and management plan or the area solid waste management plan; to assure capacity for disposal of solid waste generated in Kentucky; to assure capacity for disposal of industrial solid waste generated in Kentucky as the result of economic development; to protect against risks to health, welfare, or the environment; or to allow a solid waste disposal facility to accept those wastes it is required to accept by a contract executed before October 1, 1990.
  3. The provisions of this section shall be incorporated in the permits of solid waste disposal facilities to which it applies not designed in accordance with the most stringent containment standards adopted by the cabinet for these facilities.

History. Enact. Acts 1991 (1st Ex. Sess.), ch. 12, § 18, effective February 26, 1991.

Compiler’s Notes.

This section was formerly compiled as KRS 224.8903 .

Research References and Practice Aids

Kentucky Law Journal.

Cox, What May States Do About Out-of-State Waste in Light of Recent Supreme Court Decisions Applying the Dormant Commerce Clause? Kentucky As Case Study in the Waste Wars, 83 Ky. L.J. 551 (1994-95).

224.43-370. Invalidity of contracts for solid waste management when in conflict with chapter.

Each contract or renewal of existing contract for solid waste management in the Commonwealth shall be void to the extent that it conflicts with any provisions of this chapter.

History. Enact. Acts 1991 (1st Ex. Sess.), ch. 12, § 48, effective February 26, 1991.

Compiler’s Notes.

This section was formerly compiled as KRS 224.8905 .

Research References and Practice Aids

Kentucky Law Journal.

Cox, What May States Do About Out-of-State Waste in Light of Recent Supreme Court Decisions Applying the Dormant Commerce Clause? Kentucky As Case Study in the Waste Wars, 83 Ky. L.J. 551 (1994-95).

224.43-380. Consent to service of transporters of out-of-state waste — Documentation — Filing — Effect.

  1. No person shall transport or cause to be transported from outside the Commonwealth to a municipal solid waste management facility in the Commonwealth any waste unless each of the following persons, if not a resident of the Commonwealth at the time the waste is transported, has first irrevocably consented in writing to the jurisdiction of the courts of the Commonwealth and service of process in the Commonwealth, including summons and subpoenas, for any civil or criminal proceeding arising out of or relating to the waste that is shipped to a facility in this state:
    1. Any person who actually transports the waste;
    2. The employer of the person who actually transports the waste;
    3. Any person acting as a broker or otherwise arranging or contracting for the transportation of the waste, with the exception of persons initially generating municipal solid waste; and
    4. Any person who has contracted with the owner or operator of the facility for management of the waste at that facility.
  2. The original of the consent-to-service document shall be filed with the cabinet. A copy shall be filed with the owner or operator of each municipal solid waste management facility to which the waste is transported. The original and each copy shall be sent by certified mail, return receipt requested, at least seven (7) days before the first shipment of waste to a waste site or facility in the Commonwealth in the year for which the document is filed. The document shall be updated to reflect any changes in circumstances and refiled.
  3. A person who enters the Commonwealth pursuant to a summons, subpoena, or other form of process authorized by this section is not subject to service of process in connection with nonrelated matters that arise before his entrance into the Commonwealth.
  4. No owner, operator, or employee of a municipal solid waste management facility shall accept for treatment, transfer, storage, or disposal at the facility any waste from outside the boundaries of the Commonwealth unless a copy of the consent-to-service document required by this section and applicable to the waste is on file at the facility.
  5. The owner or operator of a municipal solid waste management facility shall keep the consent-to-service documents filed with him under this section at the facility in such a location and manner that they are readily accessible to the cabinet.

History. Enact. Acts 1991 (1st Ex. Sess.), ch. 12, § 21, effective May 28, 1991.

Compiler’s Notes.

This section was formerly compiled as KRS 224.8913 .

Research References and Practice Aids

Kentucky Law Journal.

Cox, What May States Do About Out-of-State Waste in Light of Recent Supreme Court Decisions Applying the Dormant Commerce Clause? Kentucky As Case Study in the Waste Wars, 83 Ky. L.J. 551 (1994-95).

Kentucky Pride Fund

224.43-500. Environmental remediation fee to be paid by generators of waste — Conversion formula — Report.

  1. As used in this section:
    1. “Environmental remediation fee” means a one dollar and seventy-five cents ($1.75) fee paid per ton of waste by generators of waste and collected at transfer stations and waste disposal facilities that is in addition to all other applicable fees and taxes assessed prior to January 1, 2003;
    2. “Transfer station” means a facility permitted by the cabinet where waste is transferred from one (1) vehicle to another for transportation to a municipal solid waste disposal facility; and
    3. “Public road” means any city, county, state, federal, or limited access street, highway, or turnpike, including bridges and bridge approaches.
  2. The environmental remediation fee levied under this section is in addition to all other applicable fees and taxes assessed prior to January 1, 2003. Notwithstanding any law, franchise, or contract to the contrary, the owner or operator of a transfer station or municipal solid waste disposal facility, or the person who collects waste and delivers such waste to a transfer station or municipal solid waste disposal facility may pass through and obtain from the generator any environmental remediation fee required under this section.
  3. The environmental remediation fee shall be paid by generators of waste to be disposed of at a municipal solid waste disposal facility and collected by waste transfer stations or municipal solid waste disposal facilities in the Commonwealth. No environmental remediation fee shall be collected at a municipal solid waste disposal facility on waste for which the fee has been paid at a transfer station to the disposal facility. The cabinet shall, by administrative regulation, adopt a conversion formula to allow assessment of the fee by transfer stations that do not have scales. For loads of waste weighing less than one (1) ton, the environmental remediation fee shall be one dollar and seventy-five cents ($1.75).
  4. Not later than thirty (30) days following the last day of each calendar quarter, every owner or operator of a transfer station or municipal solid waste disposal facility shall remit to the cabinet the environmental remediation fee collected during the prior quarter, with a report stating the number of tons of waste for which the environmental remediation fee was collected.

History. Enact. Acts 2002, ch. 342, § 2, effective July 15, 2002; 2006, ch. 21, § 1, effective July 12, 2006.

224.43-505. Kentucky pride fund — Distribution — Grants to eliminate illegal open dumps — Recycling and household hazardous waste grants program — Incentives and rewards — Implementation costs.

  1. A trust fund known as the Kentucky pride fund is hereby established in the State Treasury to receive money collected from environmental remediation fees established in KRS 224.43-500 . The fund shall be used to accomplish the purposes established in this section. Any money accruing to the fund in any fiscal year shall not lapse but shall be carried forward to the next fiscal year. The fund may also receive state appropriations, gifts, grants, and federal funds. All interest earned on money in the fund shall be credited to the fund.
  2. The cabinet shall administer the Kentucky pride fund as provided by this section and any administrative regulations promulgated pursuant thereto. Money from the fund received by the cabinet shall be distributed as follows:
    1. Five million dollars ($5,000,000) of the money deposited into the fund each year shall be retained by the cabinet, subject to the following conditions:
      1. The cabinet may use up to two and one-half million dollars ($2,500,000) of the money deposited into the fund as necessary for direct costs associated with site identification, characterization, and corrective action assessments of solid waste disposal sites and facilities that have ceased accepting waste before July 1, 1992, including former permitted municipal solid waste disposal facilities or abandoned solid waste disposal sites or facilities. The cabinet shall prioritize the sites and facilities based on risks to human health, safety, and the environment, and develop an implementation plan for closure and remediation of those sites and facilities. Funds may be utilized to begin design and implementation of proper closure and corrective action for those sites and facilities with unabated pending violations.
      2. The cabinet shall suspend until July, 2006, enforcement activity regarding landfill closure and remediation obligations against formerly permitted municipal solid waste disposal facilities owned by a city or county that ceased accepting waste prior to July 1, 1992, except as necessary to abate an environmental emergency.
      3. Two and one-half million dollars ($2,500,000) per year shall be used to pay debt service on bonds sold by the Kentucky Infrastructure Authority in the amount of at least twenty-five million dollars ($25,000,000), the proceeds from which were deposited into the Kentucky pride fund established in this section and utilized for undertaking closure and corrective action at formerly permitted solid waste disposal facilities or abandoned solid waste sites or facilities that ceased accepting waste prior to July 1, 1992, which pose the most significant environmental or human health risk. Moneys not appropriated for the identification and characterization of orphaned or abandoned landfills, or debt service, may be used for the elimination of illegal open dumps, direct costs associated with the closure of orphaned landfills, recycling grants, household hazardous waste grants, or additional debt service.
    2. The interest on all moneys deposited into the fund, including unused debt services, shall be distributed annually in an amount not to exceed one million dollars ($1,000,000) to the Kentucky Environmental Education Council for implementation of the environmental education center component of the Environmental Education Master Plan.
    3. The remaining balance of the funds from the environmental remediation fee established in KRS 224.43-500 , plus any unspent interest revenues, shall be utilized by the cabinet for grants to counties for the elimination of illegal open dumps and to establish a recycling and household hazardous waste grants program. Any county, waste management district, city, urban-county government, or other political subdivision of the state shall be eligible to apply for recycling and household hazardous waste grants under this program.
    4. Two and one-half million dollars ($2,500,000) shall be transferred in each of the fiscal years 2002-03 and 2003-04 and annually thereafter from the road fund established in KRS 48.010(15)(g) and two and one-half million dollars ($2,500,000) shall be transferred in each of the fiscal years 2002-03 and 2003-04 and annually thereafter from the highway construction contingency fund to the Kentucky pride fund established in this section, to be reserved and distributed annually for anti-litter control programs with distributions to be made as follows:
      1. Thirty-three and one-third percent (33-1/3%) of the money shall be distributed annually based on each county’s miles of public roads as a percentage of the total miles of public roads in the Commonwealth at the time of distribution;
      2. Thirty-three and one-third percent (33-1/3%) of the money shall be distributed annually based on the county’s rural population as a percentage of the total rural population of the Commonwealth at the time of distribution. “Rural population” means the population residing outside a city, town, or urban area with a population of two thousand five hundred (2,500) persons or more;
      3. Thirty-three and one-third percent (33-1/3%) of the money shall be distributed annually based on the county’s population as a percentage of the total population of the Commonwealth at the time of distribution;
      4. Of the moneys apportioned to counties on the basis of miles of public roads and population as provided for in subparagraphs 1. and 3. of this paragraph, the cabinet shall provide to the participating incorporated cities within the jurisdiction of each respective county which, by ordinance or other means, provides municipal solid waste collection service, an amount of funds equal to the ratio of that city’s total miles of public roads in the county and the ratio of that city’s population to the population of the county, to be used for the purpose of litter cleanup on public roads within city boundaries;
      5. Moneys received by counties and cities pursuant to this paragraph shall be applied for by November 1 of the year preceding the grant distribution and shall be used to meet obligations with respect to the litter cleanup of public roads required by the provisions of KRS 224.43-345 ; and
      6. Litter abatement funding rejected or otherwise returned from the grant recipients shall be applied to the following year’s allotment for litter abatement grants.
  3. Any county may apply for a grant for the elimination of illegal open dumps subject to the following provisions:
    1. The cabinet first shall prioritize expenditures from this fund among those counties with approved solid waste management plans in order to address those illegal open dumps posing the most significant public health and environmental risks; and
    2. The cabinet shall provide grants to counties for eliminating illegal open dumps. To be eligible for grant funding, the applicant shall:
      1. Establish an effective universal municipal solid waste collection service that is available to all county residences and businesses;
      2. Employ a solid waste coordinator with enforcement powers;
      3. Remain in compliance with an approved solid waste management plan under this chapter;
      4. Enter into agreement with the cabinet to provide a twenty-five percent (25%) match which may be in kind to the grant amount and comply with the grant criteria, except that the grant match may be waived for illegal dump cleanups projected to cost more than fifty thousand dollars ($50,000);
      5. Agree to use all legal methods at their disposal to collect delinquent solid waste collection fees; and
      6. Establish a committee to be designated as the clean county committee, composed of representatives from business, schools, agriculture, homemakers, and other concerned citizens, to increase awareness and develop education and enforcement strategies to keep the county free of litter and illegal open dumps.
  4. The cabinet shall impose the following requirements for recycling and household hazardous waste management grants to counties, waste management districts, cities, urban-county governments, or other political subdivisions of the state:
    1. Each grantee shall provide a twenty-five percent (25%) match to the grant amount which may be in kind and shall comply with the grant criteria;
    2. Each grantee shall demonstrate that the proposed project will remain financially viable after grant funds have been expended;
    3. The grantee shall demonstrate that the service added by the project is needed and would otherwise be unavailable within the proposed service area; and
    4. Projects that create opportunities for regional recycling or regional household hazardous waste management shall be given priority.
  5. Counties that meet the requirements set out above in subsection (3) of this section shall be provided the following incentives and rewards by the cabinet:
    1. Extra points when applying for Land and Water Conservation Fund grants, National Recreation Trails Funds grants, and funding from the state-funded Community Rivers and Streams Program; and
    2. Priority consideration for funds from the Division of Conservation State Cost Share Program for dumps on farmland and the Waste Tire Trust Fund for tire dumps.
  6. The cabinet shall be reimbursed for reasonable costs related to the implementation of the provisions of this section, not to exceed seven hundred fifty thousand dollars ($750,000) annually.

History. Enact. Acts 2002, ch. 342, § 3, effective July 15, 2002; 2006, ch. 21, § 2, effective July 12, 2006; 2009, ch. 78, § 41, effective June 25, 2009.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. I, D, 5, (1) at 873.See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. V, C, 1 at 940.See Transportation Cabinet Budget, 2020 Ky. Acts ch. 93, Pt. I, A, 4, (4) at 950.

Limited Quantity Hazardous Waste

224.43-610. Legislative findings and purposes.

The General Assembly of the Commonwealth of Kentucky hereby finds, determines, and declares, as follows:

  1. That Congress enacted the Hazardous and Solid Waste Amendments of 1984 establishing a clear bias against the disposal of hazardous waste in or on the land, and prohibits land disposal of a hazardous waste unless the Environmental Protection Agency determines that the prohibition is not necessary to protect human health and the environment and further recognized the environmental hazards of disposing of limited quantities of hazardous waste into solid waste landfills absent adequate design considerations.
  2. That in 1983 the United States Office of Technology Assessment published a comprehensive report which concluded that current land disposal technologies cannot guarantee the containment of hazardous wastes and protection of groundwater supplies.
  3. That a majority of Kentucky is underlaid by geology which is permeable and of little protection to groundwater resources from the contaminates, including hazardous waste, which can leach from a landfill disposal site.
  4. That Congress and the United States EPA have expressed the intention, in regards to environmental protection, that each state should be able to regulate to protect the environment in ways that are specific to the needs of each state and that each state does regulate the disposal of small amounts of hazardous waste differently.
  5. That waste flowing into solid waste landfills contains limited quantities of hazardous waste commingled with nonhazardous waste which produces a waste stream that is impossible to separate the hazardous components from nonhazardous contents.
  6. It is therefore the purpose of KRS 224.43-614 to require all waste streams disposed in Kentucky to be free of limited quantity hazardous waste components or that such waste streams be regulated by being required to dispose of the waste in a landfill meeting strict design standards for groundwater protection.

History. Enact. Acts 1988, ch. 46, § 1, effective July 15, 1988; 1991 (1st Ex. Sess.), ch. 12, § 26, effective February 26, 1991.

Compiler’s Notes.

This section was formerly compiled as KRS 224.847 .

The Hazardous and Solid Waste Amendments of 1984, referred to in this section, is Pub. L. No. 98-616 and is compiled as 42 USCS § 6901 et seq.

Research References and Practice Aids

Northern Kentucky Law Review.

Sanders, Kentucky Adopts Risk Assessment for Closing Hazardous Waste Units, 22 N. Ky. L. Rev. 37 (1995).

224.43-614. Requirements for new solid waste disposal facilities and horizontal expansions of existing facilities — Exemption — Implementing procedures.

  1. All new solid waste disposal facilities and horizontal expansions of existing solid waste disposal facilities, with the exception of construction/demolition or residual landfills, shall meet the design, operating, monitoring, and recordkeeping requirements for contained landfills as defined in accordance with administrative regulations adopted by the cabinet. Special waste, as defined in KRS 224.50-760 , except for waste from sanitary wastewater treatment facilities, shall be exempt from this section.
  2. Limited quantity generator hazardous waste as defined by the cabinet and its administrative regulations shall not be disposed in a solid waste disposal facility unless the facility meets the recordkeeping, groundwater monitoring, leachate collection and control systems, and liner system requirements of the administrative regulations adopted by the cabinet for contained landfills.
  3. The cabinet shall implement procedures to assist limited quantity hazardous waste generators to dispose of such waste in compliance with the requirements of this section. Such procedures shall include assistance in the development of limited quantity waste collection and disposal programs, and maintenance of a list of waste sites or facilities which meet the requirements of this section.

History. Enact. Acts 1988, ch. 46, § 2, effective July 15, 1988; 1991 (1st Ex. Sess.), ch. 12, § 27, effective February 26, 1991.

Compiler’s Notes.

This section was formerly compiled a KRS 224.848 .

Assistance Programs

224.43-710. Technical and financial assistance for developing plans. [Repealed]

History. Enact. Acts 1984, ch. 398, § 6, effective July 13, 1984; 1991 (1st Ex. Sess.), ch. 12, § 8, effective February 26, 1991; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1984, ch. 398, § 6, effective July 13, 1984; 1991 (1st Ex. Sess.), ch. 12, § 8, effective February 26, 1991) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.43-720. Amount of assistance. [Repealed]

History. Enact. Acts 1984, ch. 398, § 7, effective July 13, 1984; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1984, ch. 398, § 7, effective July 13, 1984) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.43-730. Applications for assistance. [Repealed]

History. Enact. Acts 1984, ch. 398, § 8, effective July 13, 1984; 1991 (1st Ex. Sess.), ch. 12, § 9, effective February 26, 1991; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1984, ch. 398, § 8, effective July 13, 1984; 1991 (1st Ex. Sess.), ch. 12, § 9, effective February 26, 1991) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

Demonstration Projects

224.43-810. Policy declaration.

  1. It shall be the policy of the Commonwealth of Kentucky to encourage and promote the establishment of a regional integrated waste treatment and disposal demonstration facility which utilizes efficient, environmentally acceptable and commercially feasible technologies, techniques, and processes for maximizing resource recovery and energy generation from the treatment and disposal of hazardous waste in Kentucky and minimizing land disposal.
  2. This policy may be implemented by contracts and agreements with the federal government and its agencies and with other organizations, including private industry, and through organizations that may be formed jointly by the state, the federal government or its agencies, and private industry to establish a regional integrated waste treatment and disposal demonstration facility in such organizational form or legal entity deemed appropriate by the participants.
  3. This policy may be implemented by the expenditure of state funds for the preliminary engineering and planning, design, construction and operation of a regional integrated waste treatment and disposal demonstration facility project in Kentucky, and for the acquisition and improvement of land, construction of roads, and provision of other public facilities incidental and necessary to the accomplishment of this project in Kentucky.
  4. This policy may be implemented by the sale of state property to organizations engaged in a regional integrated waste treatment and disposal demonstration facility project in Kentucky, either for a fair and reasonable consideration or solely or partly as all or a portion of the state’s participation in this project.
  5. This policy may be implemented by acquisition, by purchase, or by option to purchase the fee simple title to, or any acceptable lesser interest in such rights-of-way, franchises, or easements, including submerged lands and riparian rights that are necessary for the construction, use or operation of any authorized regional integrated waste treatment and disposal demonstration facility project and for the construction and operation of a line of railroad, truck road, overhead conveyor, or other transportation facilities together with the necessary rights of ingress and egress to construct, examine, alter, repair, maintain, operate, or remove such transportation facilities.
  6. This policy may be implemented by contracts and agreements for the Commonwealth to purchase all or a portion of the usable output of this project, either for a fair and reasonable consideration or solely or partly as all or a portion of the state’s participation in the project, and to dispose of this output by use in state facilities or by resale at fair market value.

History. Enact. Acts 1978, ch. 112, § 1, effective June 17, 1978; 1980, ch. 197, § 1, effective July 15, 1980; 1982, ch. 279, § 8, effective July 15, 1982.

Compiler’s Notes.

This section was originally compiled as KRS 224.212 and was renumbered as KRS 224.896 prior to being renumbered as this section.

Legislative Research Commission Note.

(1988). A technical correction has been made in this section by the Reviser of Statutes pursuant to KRS 7.136 .

224.43-815. Execution of contracts.

The secretary of the Cabinet for Economic Development and the special assistant to the Governor for coal and energy policy, with the approval of the Governor and the Legislative Research Commission, may execute contracts pursuant to KRS 224.43-810 .

HISTORY: Enact. Acts 1978, ch. 112, § 2, effective June 17, 1978; 1978, ch. 186, § 22, effective March 29, 1978; 1982, ch. 279, § 9, effective July 15, 1982; 1990, ch. 325, § 28, effective July 13, 1990; 2017 ch. 117, § 46, effective June 29, 2017.

Compiler’s Notes.

This section was originally compiled as KRS 224.213 and was renumbered as KRS 224.897 prior to being renumbered as this section.

Legislative Research Commission Note.

(1988). A technical correction has been made in this section by the Reviser of Statutes pursuant to KRS 7.136 .

SUBCHAPTER 46. Hazardous Waste

224.46-012. Registration fee for generator of hazardous waste.

  1. A generator of hazardous waste required by KRS Chapter 224 to register with the cabinet shall be subject to an annual registration fee by the cabinet and the fee shall be equal to the cost of review but shall not exceed the following amounts:
    1. For one (1) to five (5) waste streams: three hundred dollars ($300);
    2. For six (6) to ten (10) waste streams: three hundred fifty dollars ($350);
    3. For eleven (11) to fifteen (15) waste streams: four hundred dollars ($400);
    4. For sixteen (16) to twenty (20) waste streams: four hundred fifty dollars ($450);
    5. For twenty-one (21) to twenty-five (25) waste streams: five hundred dollars ($500);
    6. For twenty-six (26) to thirty (30) waste streams: five hundred fifty dollars ($550); and
    7. For thirty-one (31) or more waste streams: six hundred dollars ($600).
  2. If a generator of hazardous waste submits to the cabinet a registration to modify waste streams, the following fees shall be imposed:
    1. For one (1) to five (5) waste streams: fifty dollars ($50);
    2. For six (6) to ten (10) waste streams: one hundred dollars ($100);
    3. For eleven (11) to fifteen (15) waste streams: one hundred fifty dollars ($150);
    4. For sixteen (16) to twenty (20) waste streams: two hundred dollars ($200);
    5. For twenty-one (21) to twenty-five (25) waste streams: two hundred fifty dollars ($250);
    6. For twenty-six (26) to thirty (30) waste streams: three hundred dollars ($300); and
    7. For thirty-one (31) or more waste streams: three hundred fifty dollars ($350).
  3. If a generator of hazardous waste submits to the cabinet a registration to modify any information other than its waste streams, it shall be subject to a fee by the cabinet of fifty dollars ($50).
  4. The cabinet shall not impose a fee if a generator of hazardous waste modifies a registration by making a name change.

History. Enact. Acts 1990, ch. 471, § 2, effective July 13, 1990.

Compiler’s Notes.

This section was formerly compiled as KRS 224.1155 .

Research References and Practice Aids

Northern Kentucky Law Review.

Perkins, Petroleum Storage Regulation in Kentucky, 22 N. Ky. L. Rev. 59 (1995).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint in U.S. District Court for Polluting Sewer, Form 350.03.

224.46-014. Fee to delist hazardous waste — Fee to exempt a hazardous constituent or establish an alternate concentration limit.

  1. A petition to delist hazardous waste shall be subject to and accompanied by payment to the cabinet of a two thousand five hundred dollar ($2,500) fee for each hazardous waste petitioned.
  2. An applicant seeking to exempt a hazardous constituent or to establish an alternate concentration limit in a hazardous waste treatment, storage, or disposal facility permit shall be subject to a fee by the cabinet equal to the cost of review, after receiving the cabinet’s determination that the exemption or alternative will be granted.

History. Enact. Acts 1990, ch. 471, § 3, effective July 13, 1990.

Compiler’s Notes.

This section was formerly compiled as KRS 224.1157 .

224.46-016. Fees for permit to construct or operate hazardous waste treatment, storage, or disposal facility.

  1. An applicant for a permit to construct or operate a hazardous waste treatment, storage, or disposal facility shall be subject to a filing fee by the cabinet in the amount of twenty percent (20%) of the permit review fee.
  2. An applicant for a permit to construct or operate a treatment, storage, or disposal facility shall be subject by the cabinet to a review fee equal to the sum of the unit fees charged for each type of hazardous waste management unit at the facility. The incinerator unit fee shall apply once for each different type of incinerator unit at the facility. The types of incinerator units shall include liquid injection, rotary kiln, fluidized bed, and multiple hearth. The tank unit fee shall apply once for each different tank design. Tank design criteria shall include: differences in materials of construction, pressure vessels, nonpressure vessels, shape, and ancillary equipment. The container unit fee shall apply once for each different container type. Container types shall include: drums, tote bins, bottles, and roll-off boxes. The unit fees shall be:
    1. Incinerator: nineteen thousand four hundred dollars ($19,400);
    2. Waste pile: twelve thousand two hundred dollars ($12,200);
    3. Surface impoundment: fourteen thousand dollars ($14,000);
    4. A tank with a total capacity of seven thousand five hundred (7,500) or more gallons: seven thousand four hundred dollars ($7,400);
    5. A tank with a total capacity less than seven thousand five hundred (7,500) gallons: three thousand seven hundred dollars ($3,700);
    6. Additional tanks of similar design with a combined capacity greater than seven thousand five hundred (7,500) gallons: four thousand four hundred dollars ($4,400);
    7. Additional tanks of similar design with a combined capacity less than seven thousand five hundred (7,500) gallons: one thousand eight hundred fifty dollars ($1,850);
    8. A container with a total capacity of five thousand (5,000) or more gallons: six thousand dollars ($6,000);
    9. A container with a total capacity less than five thousand (5,000) gallons: three thousand dollars ($3,000);
    10. Additional container of similar design with a combined capacity greater than five thousand (5,000) gallons: three thousand dollars ($3,000);
    11. Additional container of similar design with a combined capacity less than five thousand (5,000) gallons: one thousand five hundred dollars ($1,500);
    12. Land treatment: fifteen thousand eight hundred dollars ($15,800); and
    13. Landfill: fifteen thousand dollars ($15,000).
  3. The cabinet may subject an applicant seeking a permit to construct or operate a treatment, storage, or disposal facility to a facility assessment fee as follows:
    1. One hundred (100) or more solid waste management units: eleven thousand five hundred dollars ($11,500);
    2. Sixty (60) to ninety-nine (99) solid waste management units: nine thousand dollars ($9,000);
    3. Twenty (20) to fifty-nine (59) solid waste management units: six thousand five hundred dollars ($6,500); or
    4. Fewer than twenty (20) solid waste management units: four thousand dollars ($4,000).
  4. The cabinet may require an applicant seeking a permit to construct or operate a treatment, storage, or disposal facility to submit an investigation fee or corrective action fee, or both, if the facility includes a facility investigation or corrective action study or plan. The facility investigation fee shall be equal to the cost of the review, but shall not exceed fourteen thousand five hundred dollars ($14,500). The corrective action fee shall be equal to the cost of the review, but shall not exceed twenty-nine thousand dollars ($29,000).

History. Enact. Acts 1990, ch. 471, § 4, effective July 13, 1990.

Compiler’s Notes.

This section was formerly compiled as KRS 224.1161 .

224.46-018. Fee for modification of permit to construct or operate hazardous waste treatment, storage, or disposal facility.

  1. An applicant seeking to modify a permit to construct or operate a hazardous waste treatment, storage, or disposal facility shall be subject to a fee by the cabinet of three hundred dollars ($300) if the cabinet determines that the modification is minor.
  2. An applicant seeking to modify a hazardous waste treatment, storage, or disposal facility permit to add one (1) or more waste streams, and a waste stream with the same characteristic is already permitted, shall be subject to a review fee of three hundred dollars ($300) per waste stream proposed to be added. All other applicants to add one (1) or more waste streams shall be subject by the cabinet to a review fee equal to:
    1. Tank: three thousand four hundred dollars ($3,400);
    2. Surface impoundment: five thousand dollars ($5,000);
    3. Waste pile: four thousand five hundred dollars ($4,500);
    4. Incinerator: six thousand five hundred dollars ($6,500);
    5. Container: two thousand seven hundred dollars ($2,700);
    6. Land treatment: five thousand five hundred dollars ($5,500); and
    7. Landfill: five thousand five hundred dollars ($5,500).
  3. An applicant seeking to modify a permit to construct or operate a hazardous waste treatment, storage, or disposal facility shall be subject to a fee by the cabinet in the following amounts, for the addition or substantial modification of a treatment, storage, or disposal unit:
    1. A tank with a total capacity of seven thousand five hundred (7,500) or more gallons: seven thousand four hundred dollars ($7,400);
    2. A tank with a total capacity less than seven thousand five hundred (7,500) gallons: three thousand seven hundred dollars ($3,700);
    3. A container with a total capacity of five thousand (5,000) or more gallons: six thousand dollars ($6,000);
    4. A container with a total capacity less than five thousand (5,000) gallons: three thousand dollars ($3,000);
    5. Incinerator: nineteen thousand four hundred dollars ($19,400);
    6. Landfill: fifteen thousand dollars ($15,000);
    7. Land treatment: fifteen thousand eight hundred dollars ($15,800);
    8. Waste pile: twelve thousand two hundred dollars ($12,200); and
    9. Surface impoundment: fourteen thousand dollars ($14,000).
  4. The incinerator fee provided in subsections (2) and (3) of this section shall apply once for each different type of incinerator unit at the facility. The types of incinerator units shall include: liquid injection, rotary kiln, fluidized bed, and multiple hearth. The tank fee provided in subsections (2) and (3) of this section shall apply once for each different tank design. Tank design criteria shall include: differences in materials of construction, pressure vessels, nonpressure vessels, shape, and ancillary equipment. The container fee provided in subsections (2) and (3) of this section shall apply once for each different container type. Container types shall include: drums, tote bins, bottles, and roll-off boxes.
  5. An applicant seeking to modify a facility investigation or corrective action plan for a solid waste management unit at a hazardous waste treatment, storage, or disposal facility shall be subject to a fee by the cabinet, which shall be equal to the cost of review but shall not exceed the following amounts for the specified instance:
    1. Facility investigation: fourteen thousand five hundred dollars ($14,500); and
    2. Corrective action: twenty-nine thousand dollars ($29,000).
  6. An applicant seeking to modify a detection, compliance or corrective action program at a regulated unit of a hazardous waste treatment, storage, or disposal facility shall be subject to a fee by the cabinet, which shall not exceed the following amounts for each specified instance:
    1. Change from detection to compliance monitoring: six thousand dollars ($6,000);
    2. Change from compliance to corrective action: eight thousand dollars ($8,000); and
    3. Modification of detection, compliance, or corrective action program: five thousand dollars ($5,000).

History. Enact. Acts 1990, ch. 471, § 5, effective July 13, 1990.

Compiler’s Notes.

This section was formerly compiled as KRS 224.1165 .

Center for Pollution Prevention

224.46-305. Legislative findings and goals on pollution prevention.

In the interest of protecting public health and the environment, the General Assembly of the Commonwealth of Kentucky hereby finds that it is the policy of the Commonwealth to encourage environmental leadership in pollution prevention by source reduction when technically feasible and economically practicable, without shifting risks from one part of a process or environmental medium to another. It shall be the goal of the Commonwealth to reduce the amount by weight of hazardous waste and of toxic chemicals regulated under Title III, Section 313 of the Superfund Amendments and Reauthorization Act of 1986 generated by each Kentucky facility in 1987 by twenty-five percent (25%) by January 1, 1997, and by fifty percent (50%) by January 1, 2002. It shall also be the goal of the Commonwealth to reduce the amount by weight of hazardous waste, and of toxic chemicals regulated under Title III, Section 313 of the Superfund Amendments and Reauthorization Act of 1986 generated by each Kentucky facility which began operating after December 31, 1987, by twenty-five percent (25%) within ten (10) years after beginning the operation, and by fifty percent (50%) within fifteen (15) years after beginning the operation. The General Assembly finds that the best means to achieve environmental leadership through pollution prevention are by:

  1. Providing facilities generating hazardous waste or releasing toxic chemicals with technical assistance to reduce the release of toxic chemicals and the generation of hazardous waste;
  2. Encouraging facilities generating hazardous waste or releasing toxic chemicals to adopt policies to prevent pollution, to prepare comprehensive plans and to develop measurable performance goals;
  3. Providing economic incentives to reduce the amount of hazardous waste generated and toxic chemicals released in the Commonwealth; and
  4. Using cabinet incentives to acknowledge the environmental leadership of facilities meeting the pollution prevention goal.

History. Enact. Acts 1994, ch. 460, § 1, effective July 15, 1994.

Compiler’s Notes.

Title III, Section 313 of the Superfund Amendments and Reauthorization Act of 1986, referred to in the introductory paragraph of this section, is compiled as 42 USCS § 11023.

224.46-310. “Pollution prevention” defined.

As used in KRS 224.46-315 to 224.46-325 , “pollution prevention,” shall mean in-plant practices, including, but not limited to, process modifications, feedstock substitutions, product reformulation management practices or housekeeping alterations, recycling within industrial processes, or equipment replacement or modifications, that reduce, avoid, or eliminate the generation of hazardous waste or the release of toxic chemicals at their source, rather than controlling, treating, or managing hazardous waste or toxic chemicals after their generation or release, to reduce the risks to employees, public health, and the environment. Pollution prevention shall not include actions taken at locations away from the pollution-generating activity, including recycling or treatment, or concentrating the hazardous content of a waste, or the toxic content of a toxic chemical, to reduce volume, or diluting to reduce the degree of hazard or toxicity.

History. Enact. Acts 1988, ch. 166, § 1, effective July 15, 1988; 1994, ch. 460, § 2, effective July 15, 1994.

Compiler’s Notes.

This section was formerly compiled as KRS 224.980 .

224.46-315. Center for Pollution Prevention — Board of directors — Powers and duties of board.

  1. There shall be established a Center for Pollution Prevention, which shall be a technical information and assistance office to be located at a state-owned university, which shall facilitate and promote the commercial implementation of pollution prevention technologies and procedures by providing technical and financial assistance, as available, to business and industry. The center shall be governed by a board of directors representing the following organizations:
    1. The secretary of the Energy and Environment Cabinet or a designee of the secretary;
    2. The dean of the University of Louisville School of Engineering or a designee of the dean;
    3. The dean of the University of Kentucky School of Engineering or a designee of the dean;
    4. A representative of the industrial community appointed by the Governor;
    5. A representative of the environmental protection community appointed by the Governor;
    6. A representative of local government appointed by the Governor;
    7. An environmental engineer appointed by the Governor;
    8. An at-large member appointed by the Governor representing an industrial facility;
    9. An at-large member appointed by the Governor representing an agricultural producer; and
    10. An at-large member appointed by the Governor representing the public.
  2. Board members may designate proxies who shall have voting privileges at board meetings. The members identified in subsection (1)(a) to (1)(d) of this section shall serve as permanent members of the board. Of the six (6) members identified in subsections (1)(e) to (j) of this section, two (2) shall continue in office for two (2) years, two (2) shall continue in office for three (3) years, and two (2) shall continue in office for four (4) years, as the Governor designates. At the expiration of the original terms and for all succeeding terms, the Governor shall appoint a successor to the board for three (3) years. Members may be reappointed. The Governor shall appoint a chairperson for the board.
  3. Meetings of the board shall be held at least quarterly, but may be held more frequently if necessary. The chair or a majority of members may call a special meeting. Five (5) members of the board shall constitute a quorum for doing business. Each member shall have one (1) vote and a majority vote of the members present shall control on all questions. No member shall receive a salary, fee, or other remuneration for services as a member of the board, but each member shall be reimbursed for ordinary travel expenses, including meals and lodging, incurred in the performance of the member’s duties.
  4. The board shall:
    1. Formulate policies and procedures necessary to carry out the purposes stated in KRS 224.46-305 ;
    2. Promulgate administrative regulations solely to carry out the purposes of KRS 224.46-320 to assure the proper distribution of funds available to the center;
    3. Review and authorize pollution prevention projects and programs to be undertaken and financed pursuant to KRS 224.46-305 , 224.46-320 , 224.46-330 , and 224.46-580 ;
    4. Review and approve all progress and final research reports on projects authorized by KRS 224.46-305 and 224.46-320;
    5. Assure that funds available to the center are not diverted to any uses inconsistent with KRS 224.46-305 to 224.46-335 and KRS 224.46-580 , and that all authorized projects are directed toward improvement of the environment, specifically toward pollution prevention and toward preserving and strengthening industry in Kentucky;
    6. Provide to the Governor and the General Assembly an annual report showing the status of funds appropriated for the purposes of KRS 224.46-305 to 224.46-335 and KRS 224.46-580 for pollution prevention and progress of the board in terms of its research and pollution prevention technology implementation efforts;
    7. Advise the Governor and the General Assembly each year of the need for continuation of the center and its board through levy of the hazardous waste assessment fund for the purpose of financing pollution prevention programs;
    8. Approve and release public statements relating to the progress and results of pollution prevention programs and research;
    9. Hire a technical advisor if deemed necessary; and
    10. Approve the budget and expenditures of the center.

History. Enact. Acts 1988, ch. 166, § 2, effective July 15, 1988; 1994, ch. 460, § 3, effective July 15, 1994; 1996, ch. 194, § 60, July 15, 1996; 2010, ch. 24, § 370, effective July 15, 2010.

Compiler’s Notes.

This section was formerly compiled as KRS 224.982 .

224.46-320. Powers and duties of center.

The center shall:

  1. Compile, organize, and make available for distribution information on pollution prevention technologies and procedures;
  2. Compile, and make available for distribution to business and industry, a list of expert private consultants on pollution prevention technologies and procedures, and a list of researchers at state universities that could provide assistance in waste reduction activities;
  3. Sponsor and conduct conferences and individualized workshops on pollution prevention for specific classes of business or industry;
  4. Conduct feasibility analyses for innovative pollution prevention technologies and procedures;
  5. Facilitate and promote the transfer of pollution prevention technologies and procedures between businesses and industries;
  6. Develop, where appropriate, and distribute for voluntary implementation, pollution prevention plans for the major classes of business or industry that generate hazardous waste or release toxic chemicals in the state;
  7. Develop, and make available for distribution, recommended environmental audit procedures or protocols for utilization by business and industry in conducting internal environmental audits;
  8. Administer loan, loan guarantee, interest subsidy, or grant programs which may be established pursuant to law for the purpose of providing moneys to a business or industry to subsidize the costs of conducting environmental audits or source reduction studies, or developing or purchasing, and implementing, source reduction technologies and procedures, or for other similar purposes;
  9. Provide moneys, from such funds as may be appropriated or otherwise made available, to academic institutions, businesses or industries, government agencies or private organizations located in the state to conduct demonstration or pilot programs utilizing innovative pollution prevention technologies or procedures for specific categories of industry or business;
  10. Provide moneys, from such funds as may be appropriated or otherwise made available, to academic institutions or private organizations located in the state for basic or applied research on pollution prevention;
  11. Compile, and make available for distribution, information on available tax benefits for the implementation of pollution prevention technologies and procedures by an industry or business;
  12. Identify governmental and nongovernmental impediments to pollution prevention;
  13. Develop the necessary information base and data collection programs to assist in establishing program priorities and evaluating the progress of reducing pollution;
  14. Develop training programs and materials for state and local regulatory personnel and private industry, designed to inform about pollution prevention practices and their applicability to industry;
  15. Participate in existing state, federal and industrial networks of individuals and groups actively involved in pollution prevention activities; and
  16. Prepare a proposed pollution prevention research and program budget request for each fiscal year, based on revenue projections and providing for the expenses of the board, the board’s technical advisor, and recommendations of the university, and present it to the board for review and approval.

History. Enact. Acts 1988, ch. 166, § 3, effective July 15, 1988; 1994, ch. 460, § 4, effective July 15, 1994.

Compiler’s Notes.

This section was formerly compiled as KRS 224.984 .

224.46-325. Data to be furnished to center.

  1. The cabinet shall provide to the center copies of all annual waste reduction reports submitted under the Federal Resource Conservation and Recovery Act, as amended, and state solid and hazardous waste management administrative regulations.
  2. The Department of Military Affairs shall provide upon request, to the center, and to the cabinet, the data submitted to the Kentucky Emergency Planning Commission as required by Section 313 of the Federal Superfund Amendments and Reauthorization Act of 1986.
  3. This section shall not be construed to limit the legal protections of the confidentiality of trade secrets or business information.

History. Enact. Acts 1988, ch. 166, § 4, effective July 15, 1988; 1994, ch. 460, § 5, effective July 15, 1994.

Compiler’s Notes.

This section was formerly compiled as KRS 224.986 .

The federal Resource Conservation and Recovery Act, referred to in subsection (1) of this section, is compiled as 42 USCS § 6901 et seq.

Section 313 of the Superfund Amendments and Reauthorization Act of 1986, referred to in subsection (2) of this section, is compiled as 42 USCS § 11023 et seq.

224.46-330. Pollution prevention fund.

  1. There is established the pollution prevention fund, to be administered by the center under the direction of the board. The fund shall consist of money received from the hazardous waste management fund created by KRS 224.46-580 and any state or federal appropriations, donations, or agency receipts.
  2. The fund shall be used to finance the pollution prevention programs authorized and approved by the board or to match federal funds for the limited purposes of providing energy efficiency technical assistance.
  3. Funds unexpended at the close of a fiscal year shall not lapse but shall be carried forward to the next fiscal year or biennium. Those funds shall be included in the budget reviewed and approved by the board.
  4. The university shall execute the budget approved by the board and expend funds accordingly. The Finance and Administration Cabinet shall issue warrants upon request of the university.

History. Enact. Acts 1994, ch. 460, § 6, effective July 15, 1994; 2014, ch. 131, § 1, effective July 15, 2014.

224.46-335. Environmental leadership program.

  1. The cabinet shall establish by administrative regulation an environmental leadership program for those facilities meeting the pollution prevention goal established in KRS 224.46-305 . The program shall provide incentives to acknowledge the environmental leadership of those facilities. The program may include provisions to address:
    1. Public recognition of a facility for meeting “state of the art” standards for environmental leadership;
    2. Accelerated review of a facility’s applications for permits, permit renewals, and permit modifications;
    3. “Green product” labeling for products produced by a facility;
    4. Compliance credit given in later enforcement action taken against a facility;
    5. Reduced frequency of monitoring or reporting by a facility;
    6. Consolidation of requirements into one (1) permit;
    7. Reduction or elimination of fees paid to the cabinet for permits, releases of toxic chemicals, or generation of hazardous waste;
    8. Access to the cabinet ombudsman who will assist in cutting red tape; and
    9. Offset of voluntary actions against future regulatory requirements.
  2. The administrative regulations shall not violate a statutory or regulatory requirement or impair the cabinet’s ability to administer a federally-delegated or federally-funded program.

History. Enact. Acts 1994, ch. 460, § 7, effective July 15, 1994.

Planning and Management

224.46-505. Legislative findings and statement of policy.

The General Assembly of the Commonwealth of Kentucky hereby finds, determines, and declares as follows:

  1. That technological progress and increases in the amounts of manufacturing are continuing to result in increasing quantities of hazardous waste being generated and prohibiting the generation of hazardous waste would result in a competitive economic disadvantage for the Commonwealth;
  2. That the Commonwealth is the site of much improper and inadequately regulated handling, treatment, transportation, storage, and disposal of hazardous waste which presents a threat to the public health, safety, and welfare and the environment;
  3. That by the enactment by the Congress of the United States of the Resource Conservation and Recovery Act of 1976, as amended (PL 94-580), the generation, transportation, treatment, storage, recycling, and disposal of hazardous waste has been determined to be a matter of national importance, recognizing that hazardous waste presents, in addition to the problems generally associated with nonhazardous waste, special dangers to health and requires a greater degree of regulation than does nonhazardous waste;
  4. That the primary responsibility for proper hazardous waste management rests with the generators, transporters, treaters, storers, recyclers, and disposers of hazardous waste, subject to rules, regulations, guidelines, and standards promulgated by the Energy and Environment Cabinet and also subject to registration or permitting by the cabinet for the purpose of effectuating safe and proper management at all steps in the hazardous waste cycle;
  5. That the participation of the private sector and the interested public in any aspect of hazardous waste management not expressly reserved as state or federal authority as set forth in KRS 224.46-510 to 224.46-570 or other statutes is encouraged, moreover, it is preferable for hazardous waste management functions to be performed by the private sector when such is in the best interest of the public and conforms with the policies and provisions set forth in KRS 224.46-510 to 224.46-570 ;
  6. That as a matter of policy the prevention of pollution or reduction of waste at its source is the preferred management option. Pollutants that cannot be prevented should be recycled in an environmentally-safe manner whenever feasible. Pollution that cannot be prevented or recycled should be treated; and, disposal or other release into the environment should only be employed when no other feasible option is available; and
  7. That as a result of the conditions described in the foregoing findings, the problems of hazardous waste generation, transportation, treatment, storage, recycling, and disposal have become a matter of extreme state concern necessitating action by the General Assembly to protect the public health, safety, and welfare and the environment of the Commonwealth.

History. Enact. Acts 1980, ch. 264, § 1, effective July 15, 1980; 1984, ch. 111, § 189, effective July 13, 1984; 1994, ch. 460, § 9, effective July 15, 1994; 2010, ch. 24, § 371, effective July 15, 2010.

Compiler’s Notes.

This section was formerly compiled as KRS 224.862 .

The Resource Conservation and Recovery Act of 1976, referred to in subdivision (3), is compiled as 42 USCS § 6901 et seq.

Research References and Practice Aids

Kentucky Law Journal.

Stephens, Commencing the Decade With Environmental Reform: The 1980 Kentucky General Assembly Implements the Resource Conservation and Recovery Act of 1976, 69 Ky. L.J. 227 (1980-81).

224.46-510. Generation of hazardous waste, standards — Report by cabinet to county government — Criteria for determining whether waste is hazardous and list of hazardous wastes to be set by regulation.

  1. The cabinet shall promulgate regulations which establish standards for the generators of hazardous waste by amount of waste generated requiring such generators to do any or all of the following:
    1. Compile and maintain such information and record keeping regarding the quantities of hazardous waste generated, characteristics and composition of such waste and disposition of hazardous waste generated;
    2. Utilize proper labeling and containerization of hazardous waste as required by the cabinet;
    3. Utilize a manifest for each shipment of hazardous waste and assure that the facility to which the waste is designated is a permitted facility;
    4. Provide information on the general chemical composition of the hazardous waste to persons transporting, treating, storing or disposing of hazardous waste;
    5. Keep all records and copies of manifest readily available for review and inspection by the designated representative of the cabinet;
    6. Retain all records and manifest copies for a minimum of three (3) years or as required by the cabinet;
    7. Compile a periodic report of hazardous waste generated, stored, transferred, treated, disposed or transported for treatment, storage, or disposal as required by the cabinet;
    8. Provide the report required in paragraph (g) of this subsection to the county judge/executive of the county or chief executive officer of an urban-county government within which the waste site or facility which will receive waste from the generator is located and to the county judge/executive of the county or chief executive officer of an urban-county government within which the generator is located in order that the county judge/executive or chief executive officer may make the report available to the county law enforcement and emergency services for emergency planning purposes.
  2. Any person who generates waste in this state shall make a determination as to whether or not such waste is hazardous pursuant to criteria promulgated by the cabinet, and any generator of hazardous waste shall certify that all information required in notices or reports to the cabinet or information provided on the manifest document is factual.
  3. The cabinet shall promulgate regulations specifying the criteria by which wastes may be determined to be hazardous and based on use of these criteria maintain and update a list of wastes identified as hazardous wastes which shall be subject to the hazardous waste management provisions of KRS 224.46-505 to 224.46-570 . The criteria and lists promulgated by the cabinet shall be identical to any such criteria and lists proposed or promulgated by the United States Environmental Protection Agency pursuant to the Resource Conservation and Recovery Act of 1976, as amended (Public Law 94-580). In providing for the management of hazardous waste, the cabinet shall establish classes or categories of hazardous waste reflecting the relative degree of hazard consistent with the Resource Conservation and Recovery Act of 1976, as amended (Public Law 94-580), and regulations issued pursuant thereto. Any person generating any substance which either meets the criteria or is identified as hazardous waste shall within ninety (90) days of promulgation of the regulation so notify the cabinet.

History. Enact. Acts 1980, ch. 264, § 4, effective July 15, 1980; 1984, ch. 111, § 190, effective July 13, 1984; 1986, ch. 237, § 2, effective July 15, 1986; 1986, ch. 298, § 3, effective July 15, 1986.

Compiler’s Notes.

This section was formerly compiled as KRS 224.864 .

The Resource Conservation and Recovery Act, Public Law 94-580, referred to in subsection (3), is compiled as 42 USCS § 6901 et seq.

Legislative Research Commission Note.

Acts 1986, ch. 237, § 9, provides: “The regulations promulgated under the introductory paragraph of subsection (1) of KRS 224.864 and under KRS 224.873 , pursuant to the authority granted by sections 2 and 4 of this Act shall be no more stringent than the federal requirements.”

This section was amended by two 1986 Acts which do not appear to be in conflict and have been compiled together.

NOTES TO DECISIONS

Cited:

Lisack v. Natural Resources & Environmental Protection Cabinet, 840 S.W.2d 835, 1992 Ky. App. LEXIS 223 (Ky. Ct. App. 1992).

Research References and Practice Aids

Kentucky Law Journal.

Stephens, Commencing the Decade With Environmental Reform: The 1980 Kentucky General Assembly Implements the Resource Conservation and Recovery Act of 1976, 69 Ky. L.J. 227 (1980-81).

Northern Kentucky Law Review.

Reynolds, Who’s Going to Regulate NORM?, 22 N. Ky. L. Rev. 5 (1995).

224.46-520. Prerequisites to issuance of permit for storage, treatment, recycling, or disposal of hazardous waste — Standards for closure — Monitoring, maintenance, and remedial measures — Financial responsibility — Closure for noncompliance.

  1. No person shall engage in the storage, treatment, recycling, or disposal of hazardous waste without first notifying the cabinet and obtaining construction and operation permits from the cabinet. The cabinet shall promulgate regulations establishing standards for such permits but in no case shall a permit to construct or operate a hazardous waste site or facility or a regional integrated waste treatment and disposal demonstration facility be issued unless it can be demonstrated that the proposed facility can be integrated into the surroundings in an environmentally compatible manner, including but not limited to, insuring that hydrologic, seismologic, geologic, and soil considerations have been adequately addressed in the permit application and in an operational plan. In no case shall a permit to construct a hazardous waste incinerator, landfill, or other site or facility for the land disposal of hazardous waste be approved or issued prior to notification of the cabinet by the local unit of government of its actions pursuant to KRS 224.40-310 (6). The cabinet shall not issue a construction permit to a regional integrated waste treatment and disposal demonstration facility until it has been issued a certificate of environmental safety and public necessity. A person desiring a construction permit shall file an application on forms supplied by the cabinet which shall contain such information as the cabinet deems necessary and provide evidence that the hazardous waste shall be treated, stored or disposed of in the manner prescribed by the cabinet. The applicant shall not initiate construction at the proposed site of a new facility for the storage, treatment, or disposal of hazardous waste until notice has been given to that portion of the public most likely to be affected by the operation of the proposed facility pursuant to KRS 224.40-310 (1) to (5) and until a construction permit for said facility has been issued by the cabinet. The cabinet may consider past performance in this or related fields by the applicant. The cabinet, in making a determination to issue, deny, or condition a construction permit, shall consider the following:
    1. An evaluation of alternatives, to include other locations and other treatment, storage, and disposal approaches, different from those proposed, available to the applicant;
    2. An evaluation of the public health, safety, and environmental aspects of the proposals;
    3. An evaluation of the social and economic impacts of the proposed action on the affected community, to include, at a minimum, changes in property values, community perception and other psychic costs, and the costs and availability of public services, facilities and improvements required to support the facility and protect public health, safety, and the environment;
    4. An evaluation of mitigation measures to alleviate problems identified in paragraphs (b) and (c) of this subsection; and
    5. The relationship of the proposal to local planning and existing development. Except that in the case of hazardous waste incinerators, landfills, or other sites or facilities for the land disposal of hazardous waste, the provisions of paragraphs (c) and (e) of this subsection shall be determined by the local unit of government pursuant to KRS 224.40-310(6).
  2. The cabinet may prohibit the land disposal of any hazardous wastes. The criteria and list of hazardous waste to be prohibited by the cabinet from land disposal shall be identical to any such criteria and list promulgated by the United States Environmental Protection Agency pursuant to the Resource Conservation and Recovery Act of 1976, as amended, (Public Law 94-580). The land disposal of hazardous waste may be permitted for methods determined by the cabinet to be protective of human health and the environment for as long as the waste remains hazardous.
  3. In conjunction with the application for permits under this section, the applicant shall establish adequate financial responsibility as follows:
    1. The applicant shall file as part of his application for a permit to construct the facility an estimate of the cost of closing the facility after its capacity is reached or operations have otherwise ceased and an estimate of the cost of post-closure care. In the case of storage facilities, the cost of closing shall include the cost of properly disposing of the hazardous waste stored. The cabinet shall evaluate this cost estimate and either accept the estimate as made or shall revise it in accordance with acceptable guidelines, using, where available, actual data on closure costs associated with similar existing facilities. Before a permit to operate can be issued, the applicant for any hazardous waste permit shall assure that the funds needed to close the facility are available by establishing assurance through one (1) or more of the following mechanisms: cash, certificates of deposit, irrevocable credit, or other sureties satisfactory to the cabinet and the mechanism shall be established by agreement with the cabinet. The agreement shall provide that disbursement is permissible only upon written approval of the cabinet and whenever, on the basis of any information, the cabinet determines that the owner or operator is in violation of any of the closure requirements for the facility, that the cabinet shall have the right to use part or all of the closure fund to carry out the closure requirements. The financial institution, surety company, or escrow agent shall release these funds upon receiving a forfeiture order of the cabinet issued pursuant to an appropriate administrative hearing considering one (1) or more closure violations. Upon determination that closure has been satisfactorily accomplished, the cabinet shall release the applicant from further financial responsibility for closure;
    2. Any applicant for a hazardous waste disposal permit shall file with the cabinet as part of his application an estimate of the annual cost of post-closure monitoring and routine maintenance at the site. The cabinet shall evaluate the cost estimate, and, after such modification as may be necessary in light of its evaluation, shall give notice of acceptance of the cost estimate. This cost estimate which will be referred to as the annual post-closure operating cost shall then be used to determine the amount of the post-closure monitoring and maintenance fund to be used for monitoring and maintenance for a period of a minimum of thirty (30) years after facility closure. The post-closure monitoring and maintenance fund shall be cash, irrevocable credit, or other sureties satisfactory to the cabinet and shall be established by an agreement with the cabinet. The agreement shall provide that whenever, on the basis of any information, the cabinet determines that the owner or operator of the facility is in violation of any of the post-closure monitoring and maintenance requirements, the cabinet shall have the right to use part or all of the funds to carry out the post-closure monitoring and maintenance for the facility. The funds shall be released upon receipt of a forfeiture order of the cabinet issued pursuant to an appropriate administrative hearing considering one (1) or more post-closure monitoring and maintenance violations. One (1) year after closure, and annually thereafter for a period of thirty (30) years, the applicant who has carried out all necessary post-closure maintenance and monitoring requirements may upon application to the cabinet be reimbursed out of the post-closure monitoring and maintenance fund an amount equal to the estimated costs for monitoring and routine maintenance for that year. Request for release of funds for reimbursement shall be accompanied by an itemized list of costs incurred. Upon determination that the expenditures incurred are in accordance with the approved plan, or otherwise justified, the cabinet may authorize the release of the funds to the applicant in writing. Any funds remaining in the account following a termination hearing in which the applicant is released of further responsibility shall likewise be released to the applicant; and
    3. All applicants for any hazardous waste permit shall provide evidence of financial responsibility in an amount and for a time period specified by the cabinet for the purpose of corrective action on and off-site and satisfying claims arising out of injury to persons or property resulting from the release or escape of hazardous waste into the environment. Such financial responsibility may be established by one (1) or a combination of evidence of liability insurance, self-insurance, or other evidence of financial responsibility acceptable to the cabinet. The level of self-insurance shall not exceed ten percent (10%) of equity, and financial responsibility shall be maintained during the entire operation of the facility and until termination. The minimum liability coverage for sudden occurrences, exclusive of legal defense costs, for a storage, treatment, or disposal facility shall be one million dollars ($1,000,000) per occurrence with an annual aggregate of two million dollars ($2,000,000). The minimum liability coverage for nonsudden occurrences, exclusive of legal defense costs, for a hazardous waste facility involving land disposal shall be three million dollars ($3,000,000) per occurrence with an annual aggregate of six million dollars ($6,000,000). Combined coverage for sudden and nonsudden occurrences shall be no less than the combined totals herein set forth for separate coverage. The cabinet shall accept a demonstration of financial responsibility during the post-closure period of a facility for a lesser amount for sudden or non-sudden occurrences where it is shown that a lesser amount of financial responsibility will be adequate to provide compensation for third-party injury or property damage and corrective action, considering site and facility conditions and other site-specific factors. Financial responsibility in post-closure for sudden and non-sudden occurrences and corrective action may be demonstrated through a letter of credit, surety or other bond, corporate guarantee, trust fund, liability insurance, self-insurance, or combination of these or other methods as approved by the cabinet.
  4. The cabinet shall promulgate regulations establishing minimal standards for closure, post-closure monitoring and maintenance, and termination of sites for the disposal of hazardous waste. Any person who obtains a disposal permit for hazardous waste shall be responsible for the post-closure monitoring and maintenance of the permitted facility for a minimum of thirty (30) years after closure of the facility. The permittee may apply to the cabinet for termination of the responsibility for post-closure monitoring and maintenance at any time during the thirty (30) year post-closure monitoring and maintenance period. Upon receipt of such application, the cabinet shall provide notice to the public and to the owner or operator and an opportunity for a hearing on the termination of the site. In this proceeding, the burden shall be on the applicant to prove by clear and convincing evidence that additional post-closure monitoring and maintenance is not necessary for adequate protection of public health or the environment. The cabinet shall determine either that post-closure monitoring and maintenance of the site is no longer required, in which case the applicant shall be relieved of such responsibility; or that additional post-closure monitoring and maintenance of the site as specified in a plan of operation is still required, in which case the cabinet may order appropriate remedial measures, impose restrictive covenants as to future use of the property involved, or otherwise condition termination as may be necessary for adequate protection of public health and the environment. The cabinet may require additional monitoring, site maintenance, or remedial measures consistent with KRS Chapter 224 any time after termination of the post-closure monitoring and maintenance of the permitted facility in the event that the cabinet determines such actions are necessary for the protection of human health and the environment.
  5. In any case where the owner or operator is in bankruptcy, reorganization, or arrangement pursuant to the Federal Bankruptcy Code or where jurisdiction cannot be obtained with reasonable diligence in any state court or any federal court over an owner or operator likely to be insolvent at the time of judgment, any claim arising from conduct for which evidence of financial responsibility shall be provided under this section may be asserted directly against the guarantor providing such evidence of financial responsibility. In the case of any action pursuant to this subsection, such guarantor shall be entitled to invoke all rights and defenses which would have been available to the owner or operator if any action had been brought against the owner or operator by the claimant and which would have been available to the guarantor if an action had been brought against the guarantor by the owner or operator.
  6. The total liability of any guarantor shall be limited to the aggregate amount which the guarantor has provided as evidence of financial responsibility to the owner or operator under this section. Nothing in this subsection shall be construed to limit any other federal statutory, contractual or common law liability of a guarantor to its owner or operator including, but not limited to, the liability of such guarantor for bad faith either in negotiating or in failing to negotiate the settlement of any claim. Nothing in this subsection shall be construed to diminish the liability of any person under Section 107 or 111 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 or other applicable law.
  7. For the purpose of this subsection, the term guarantor means any person, other than the owner or operator, who provides evidence of financial responsibility for an owner or operator under this section.
  8. Any hazardous waste treatment, storage, or disposal facility shall close in accordance with the permit and this chapter, if the site or facility has not been maintained in operational condition in conformance with this chapter, for any period of six (6) months or longer. The permittee shall be afforded an opportunity to be heard on the proposed termination of authorization to operate, and termination under this section shall not be required where the permittee demonstrates that steps have been taken to bring the facility, within a reasonable time not to exceed ninety (90) days, into full operational status in accordance with this chapter and applicable regulations. Within ninety (90) days, the cabinet shall review existing hazardous waste treatment, storage, or disposal permits to determine compliance with this section.

HISTORY: Enact. Acts 1980, ch. 264, § 5, effective July 15, 1980; 1982, ch. 279, § 13, effective July 15, 1982; 1982, ch. 299, § 1, effective July 15, 1982; 1986, ch. 237, § 3, effective July 15, 1986; 1986, ch. 298, § 5, effective July 15, 1986; 1988, ch. 26, § 2, effective March 4, 1988; 1988, ch. 44, § 3, effective July 15, 1988; 1990, ch. 424, § 1, effective April 10, 1990; 1990, ch. 454, § 1, effective July 13, 1990; 2006, ch. 22, § 1, effective July 12, 2006; 2017 ch. 117, § 47, effective June 29, 2017.

Compiler’s Notes.

The Resource Conservation and Recovery Act of 1976, referred to in subsection (2) of this section, is compiled as 42 USCS § 6901 et seq.

Sections 107 and 111 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, referred to in subsection (6) of this section, are compiled as 42 USCS §§ 9607 and 9611, respectively.

This section was formerly compiled as KRS 224.866 .

Legislative Research Commission Note.

Subsection 8 of this section became effective on April 10, 1990, because of the emergency clause contained in 1990 House Bill 807, Ky. Acts ch. 424, § 2.

Research References and Practice Aids

Journal of Natural Resources & Environmental Law.

Notes and Comments, Kentucky’s Efforts to Protect Its Groundwater: Uniqueness and Uniformity Among States, 10 J. Nat. Resources & Envtl. L. 371 (1994-95).

Kentucky Law Journal.

Stephens, Commencing the Decade With Environmental Reform: The 1980 Kentucky General Assembly Implements the Resource Conservation and Recovery Act of 1976, 69 Ky. L.J. 227 (1980-81).

Northern Kentucky Law Review.

Natter, How Clean is Clean? Hazardous Waste/Hazardous Substance Cleanup Standards Under Kentucky Law, 18 N. Ky. L. Rev. 295 (1991).

224.46-525. Application of KRS 224.1-400(18) to (21) to hazardous waste regulated unit closure plans.

The cabinet shall consider hazardous waste regulated unit closure plans in a manner consistent with KRS 224.1-400 (18) to (21) to the extent these proposals do not conflict with state hazardous waste statutes or administrative regulations, federal statutes, or federal regulations and are otherwise protective of human health and the environment.

History. Enact. Acts 1994, ch. 429, § 1, effective July 15, 1994.

Compiler’s Notes.

This section is set out above to reflect a correction to the section reference appearing in section from “224.01-400(18) to (21)” to “224.1-400(18) to (21)” due to renumbering by the state reviser effective in 2013.

Research References and Practice Aids

Northern Kentucky Law Review.

Sanders, Kentucky Adopts Risk Assessment for Closing Hazardous Waste Units, 22 N. Ky. L. Rev. 37 (1995).

Perkins, Petroleum Storage Regulation in Kentucky, 22 N. Ky. L. Rev. 59 (1995).

224.46-530. Specific authority of cabinet over management of hazardous wastes.

  1. In addition to any other authority or power, the cabinet shall have the authority and power:
    1. To prohibit the placement of bulk or noncontainerized liquid hazardous wastes or free liquids contained in hazardous wastes (whether or not absorbents have been added) in any landfill;
    2. To minimize the disposal of containerized liquid hazardous wastes in landfills and minimize the presence of free liquids in containerized hazardous wastes to be disposed in landfills;
    3. To prohibit the disposal in landfills of any liquids including those that have been absorbed in materials that biodegrade or that release liquids when compressed as might occur during routine landfill operations;
    4. To regulate the production, burning and transporting of any fuel derived from any hazardous waste, any mixture of a material and hazardous waste or from used oil and any other material; and the distribution and marketing of any fuel produced from hazardous wastes, a mixture of hazardous waste and any material or from used oil or any other material or which otherwise contains used oil or any hazardous waste. In regulating any persons and facilities pursuant to this paragraph the cabinet may include but not be limited to establishing requirements for notification, labeling, record keeping, incineration, and any other requirement deemed necessary by the cabinet to protect human health and the environment;
    5. To require corrective action prior to issuing, renewing, or amending a permit for all releases of hazardous wastes or constituents from any waste management unit at a treatment, storage or disposal facility, regardless of when the wastes were placed in such unit. Permits issued, renewed, or amended shall contain schedules of compliance for corrective action and assurances of financial responsibility for completing the corrective action whenever the corrective action cannot be completed prior to a final decision on the permit;
    6. To require or order, at facilities for the treatment, storage or disposal of hazardous wastes, that corrective action be taken beyond the facility boundary where necessary to protect human health and the environment unless the owner or operator of the facility demonstrates that after using best efforts the necessary permission to undertake such action could not be obtained. This requirement applies to all facilities operating under permits issued pursuant to KRS 224.40-310 to 224.40-330 , 224.43-020 , 224.46-505 to 224.46-530 , 224.50-130 , and 224.50-760 and all landfills, surface impoundments, and waste pile units (including any new units, replacement of existing units or lateral expansions of existing units) which receive hazardous wastes after July 26, 1982;
    7. To condition and issue permits that contain terms and conditions that are necessary to protect human health and the environment;
    8. To require any landfill, surface impoundment, land treatment unit or waste pile unit permitted to operate which receives hazardous waste after July 26, 1982, to comply with the standards concerning groundwater monitoring, unsaturated zone monitoring, and corrective action which are applicable to new landfills, surface impoundments, land treatment units, and waste pile units required to be permitted under this chapter;
    9. To impose such requirements as may be necessary to protect human health and the environment at any existing landfills, surface impoundments or class of surface impoundments from which the cabinet determines hazardous constituents are likely to migrate into groundwater. Such requirements may include those which would apply if such facility was new;
    10. To regulate the generation, transportation, and use of used oil which is recycled as necessary to protect human health and the environment;
    11. To regulate hazardous waste that is radioactive except to the extent that such waste is source, special nuclear or by-product material as defined by the Atomic Energy Act of 1954, as amended, (68 Stat. 923);
    12. To prohibit the use of waste or used oil or other material which is contaminated or mixed with dioxin or any other hazardous waste, other than a waste identified solely on the basis of ignitability, for dust suppression or road treatment;
    13. To regulate, monitor, and control air emissions at hazardous waste treatment, storage, and disposal facilities including but not limited to open tanks, surface impoundments, and landfills as may be necessary to protect human health and the environment; and
    14. To exclude a waste generated at a particular facility from being regulated as a hazardous waste.
  2. The cabinet shall have the authority to promulgate any regulations necessary to carry out the provisions of this section.

History. Enact. Acts 1986, ch. 237, § 5, effective July 15, 1986.

Compiler’s Notes.

This section was formerly compiled as KRS 224.867 .

The Atomic Energy Act of 1954 (68 Stat. 923), referred to in this section, is compiled as 42 USCS § 2011 et seq.

Research References and Practice Aids

Northern Kentucky Law Review.

Natter, How Clean is Clean? Hazardous Waste/Hazardous Substance Cleanup Standards Under Kentucky Law, 18 N. Ky. L. Rev. 295 (1991).

224.46-540. Exemption of agricultural wastes — Producer of hazardous waste in amounts not deemed harmful not considered as generator of hazardous waste.

  1. No hazardous waste management provision of this chapter shall be construed to apply to any agricultural wastes, including manures and crop residues which are returned to the soil as fertilizers or soil conditioners. A farmer disposing of waste pesticides, herbicides or fertilizers from his own use which are hazardous wastes is not required to comply with the hazardous waste management provisions of this chapter for those wastes, provided he triple rinses each emptied container and disposes of the waste residues on his own farm in a manner consistent with the disposal instructions on the container label.
  2. Any person who produces hazardous waste in amounts not determined to be harmful to public health or the environment by regulation of the cabinet consistent with the Federal Resource Conservation and Recovery Act, as amended, and regulations issued pursuant thereto shall not be a generator of hazardous waste or considered to be engaged in the generation of hazardous waste for purposes of this chapter.

History. Enact. Acts 1982, ch. 74, § 21, effective July 15, 1982; 1986, ch. 331, § 38, effective July 15, 1986.

Compiler’s Notes.

This section was formerly compiled as KRS 224.869 .

The federal Resource Conservation and Recovery Act, referred to in this section, is compiled as 42 USCS § 6901 et seq.

224.46-550. Fees for registration certificates and permits.

The cabinet shall promulgate regulations requiring, in connection with the application, review and issuance of generator registration certificates showing compliance with KRS 224.46-510 or hazardous waste permits issued pursuant to KRS 224.46-520 , the payment of a reasonable fee. The fee shall be reasonably related to the administrative cost of verifying data submitted pursuant to obtaining the certificates or permits and making reasonable inspections necessary for processing such applications.

History. Enact. Acts 1980, ch. 264, § 6, effective July 15, 1980.

Compiler’s Notes.

This section was formerly compiled as KRS 224.871 .

224.46-560. Standards relating to transporters — Agency cooperation.

The cabinet shall promulgate administrative regulations establishing standards applicable to transporters of hazardous waste regarding record keeping, notification and compliance with the manifest system. The Transportation Cabinet and the Justice and Public Safety Cabinet shall cooperate with and assist the cabinet in implementing and enforcing the transportation provisions of any state hazardous waste regulations promulgated pursuant to this chapter. The specific nature and details of the assistance effort shall be established by a formal cooperative agreement acceptable to the cabinets.

History. Enact. Acts 1980, ch. 264, § 10, effective July 15, 1980; 1986, ch. 237, § 4, effective July 15, 1986; 2007, ch. 85, § 257, effective June 26, 2007.

Compiler’s Notes.

This section was formerly compiled as KRS 224.873 .

Legislative Research Commission Note.

Acts 1986, ch. 237, § 9, provides: “The regulations promulgated under the introductory paragraph of subsection (1) of KRS 224.46-510 and under KRS 224.46-560 , pursuant to the authority granted by sections 2 and 4 of this Act shall be no more stringent than the federal requirements.”

Research References and Practice Aids

Kentucky Law Journal.

Stephens, Commencing the Decade With Environmental Reform: The 1980 Kentucky General Assembly Implements the Resource Conservation and Recovery Act of 1976, 69 Ky. L.J. 227 (1980-81).

224.46-570. Manifest system.

The cabinet shall require the use of a manifest system for the orderly tracking of hazardous wastes from the generation site to the site of treatment, storage, and disposal except for coal mining wastes pursuant to KRS 224.50-760 (1)(c). The system shall, at a minimum, require the designation of the generator, each transporter, the disposal facility, and the type and quantity of waste involved. The cabinet may establish additional criteria to accommodate the manifest system to internal record keeping and to facilitate the monitoring of hazardous waste activity within the Commonwealth.

History. Enact. Acts 1980, ch. 264, § 9, effective July 15, 1980.

Compiler’s Notes.

This section was formerly compiled as KRS 224.874 .

224.46-580. Development of statewide programs — Responsibilities of cabinet — Hazardous waste assessment — Waiver — Hazardous waste management fund — Pollution prevention fund — Response actions to release of waste — Post-closure site integrity.

  1. The General Assembly declares that it is the purpose of this section to promote the development of statewide programs, under the responsibility of a single agency, which are intended to protect the health of the citizens and the environment of the Commonwealth from present and future threats associated with the management of hazardous wastes and the release of toxic chemicals regulated under Title III, Section 313 of the Superfund Amendments and Reauthorization Act of 1986, including disposal, treatment, recycling, storage, and transportation. The intent of the General Assembly is to add to and coordinate, and not replace, existing efforts and responsibilities in the areas of hazardous waste management, toxic chemical manufacture, processing, or other use, and to leave the primary burden and responsibility for hazardous waste and toxic chemical reduction on private industry; and further to finance assistance and coordination by imposing assessments on the generation of hazardous waste. The assessments are intended to produce a reduction in waste generated; to promote the use of new techniques in recycling, treatment, and alternatives other than land disposal; and to place the burden of financing additional hazardous waste management activities necessarily undertaken by state agencies on the users of those products associated with the generation of hazardous waste. The General Assembly further finds that Kentucky’s industries need assistance in developing and implementing pollution prevention goals and that a fund should be established to provide technical and financial assistance to those industries.
  2. The Energy and Environment Cabinet is given the authority to administer the provisions and programs of this section and the responsibility to achieve the purposes of this section.
  3. In addition to all specific responsibilities contained elsewhere in this chapter, the cabinet shall:
    1. Respond effectively and in a timely manner to emergencies created by the release of hazardous substances, as defined in KRS 224.1-400 , into the environment. The cabinet shall provide for adequate containment and removal of the hazardous substances in order that the threat of a release or actual release of the substance may be abated and resultant harm to the environment minimized. The provisions of KRS 45A.695 to 45A.725 may be suspended by the cabinet if necessary to respond to an environmental emergency.
    2. Provide for post-closure monitoring and maintenance of hazardous waste disposal sites upon termination of post-closure monitoring and maintenance responsibilities by persons permitted to operate the facility pursuant to this chapter.
    3. Identify, investigate, classify, contain, or clean up any release, threatened release, or disposal of a hazardous substance where responsible parties are economically or otherwise unavailable to properly address the problem and the problem represents an imminent danger to the health of the citizens and the environment of the Commonwealth.
  4. The cabinet shall have the authority to finance the nonfederal share of the cost for clean up of sites under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (Pub. L. 96-510).
  5. The cabinet shall recover, when possible, actual and necessary expenditures incurred in carrying out the duties under this section. Any expenditures recovered shall be placed in the hazardous waste management fund.
  6. It is the expressed purpose of this section to accomplish effective hazardous waste and toxic chemical management that results in a reduction of the generation of hazardous wastes and the release of toxic chemicals within the Commonwealth; further, it is a purpose of this chapter to allocate a portion of the cost of administering necessary governmental programs related to hazardous waste and toxic chemical management to those industries whose products are reasonably related to the generation of hazardous waste.
  7. There is hereby imposed upon every person engaged within this state in the generation of hazardous waste an annual hazardous waste assessment to be determined pursuant to this section according to the quantity by weight of hazardous waste generated, except that no assessment shall be levied against generators for any quantity of “special wastes,” waste oil, or spent material from air pollution control devices controlling emissions from coke manufacturing facilities. The assessment shall not be imposed upon any person for any quantities of hazardous waste generated by others for which that person is a secondary handler that stores, processes, or reclaims the waste. The assessment shall be reported and paid to the Energy and Environment Cabinet for the generation of hazardous waste on an annual basis on January 1 of each year. The payment shall be accompanied by a report or return in a form that the cabinet may prescribe. If a federal law is enacted which accomplishes or purports to accomplish the purposes set forth in this section and which levies an assessment or tax upon any business assessed pursuant to this section, the amount of the assessment to be levied upon the business under this section shall be reduced by the amount of the federal assessment or tax upon the business. The reduction shall only be authorized when funds raised by the federal assessment or tax are made available to the state for any of the activities to be funded under this section. If federal moneys are available to carry out the duties imposed by subsection (3) of this section, the assessment shall cease to be levied and collected until such time as federal moneys are no longer available to the Commonwealth for these purposes. The assessment shall be charged against generators of hazardous waste until June 30, 2024 . After this date, no further hazardous waste management assessment shall be charged against generators. The hazardous waste assessment shall be waived for any generator owing less than fifty dollars ($50) for the year. However, a return must be filed by generators to whom a payment waiver applies.
  8. The assessment on generators shall be one and two-tenths cents ($0.012) per pound if the waste is liquid, or two-tenths of a cent ($0.002) per pound if the waste is solid.
    1. Hazardous waste that is injected into a permitted underground injection well shall be assessed on a dry weight basis;
    2. Hazardous waste treated, detoxified, solidified, neutralized, recycled, incinerated, or disposed of on-site shall be assessed at one-half (1/2) of the appropriate rate, except for recycled waste used in the steel manufacturing process which shall be exempt;
    3. Waste that is subject to regulation under Section 402 or 307B of the Federal Clean Water Act shall be exempt;
    4. Emission control dust and sludge from the primary production of steel that is recycled by high temperature metals recovery or managed by stabilization of metals shall be exempt; and
    5. Waste that is delivered from the generator to an on-site or off-site industrial boiler or furnace and burned for energy recovery in accordance with state and federal laws and regulations shall be assessed at one-half (1/2) of the appropriate rate.
  9. Except for waste brought into the state by a company to an affiliated manufacturing facility of the company receiving the waste, any person who transports hazardous waste into the state for land disposal or treatment which is generated outside of the state shall pay an assessment to the hazardous waste facility which first receives the waste for storage, treatment, or land disposal. The assessment rate shall be identical to the rate described in subsection (8) of this section. The facility shall remit the assessment to the cabinet on an annual basis on January 1 of each year. The payment shall be accompanied by a return the cabinet shall prescribe.
  10. If any generator or hazardous waste facility subject to the provisions of subsection (8) or (9) of this section fails or refuses to file a return or furnish any information requested in writing by the cabinet, the cabinet may, from any information in its possession, make an estimate and issue an assessment against the generator or hazardous waste facility and add a penalty of ten percent (10%) of the amount of the assessment so determined. This penalty shall be in addition to all other applicable penalties in this chapter.
  11. If any generator or hazardous waste facility subject to the provisions of subsection (8) or (9) of this section fails to make and file a return required by this chapter on or before the due date of the return or the due date as extended by the cabinet, unless it is shown to the satisfaction of the cabinet, that the failure is due to reasonable cause, five percent (5%) of the assessment found to be due by the cabinet shall be added to the assessment for each thirty (30) days or fraction thereof elapsing between the due date of the return and the date on which it is filed, but the total penalty shall not exceed twenty-five percent (25%) of the assessment.
  12. If the assessment imposed by this chapter, whether assessed by the cabinet, or the generator, or any installment or portion of the assessment is not paid on or before the date prescribed for its payment, there shall be collected, as a part of the assessment, interest upon the unpaid amount at the rate of eight percent (8%) per annum from the date prescribed for its payment until payment is actually made to the cabinet.
    1. There is hereby created within the State Treasury a trust and agency fund which shall not lapse to be known as the hazardous waste management fund. The fund shall be deposited in an interest-bearing account. The cabinet shall be responsible for collecting and receiving funds as provided in this section, and all such assessments collected or received by the State Treasury shall be deposited in the hazardous waste management fund. All interest earned on the money deposited in the fund shall be deposited to the fund. When the State Treasurer certifies to the cabinet that the uncommitted balance of the hazardous waste management fund exceeds six million dollars ($6,000,000), assessments shall not be collected until the State Treasurer certifies to the cabinet that the balance in the hazardous waste management fund is less than three million dollars ($3,000,000). The implementation of the cap on the fund shall be suspended from July 13, 1990, until July 1, 1991. In addition, for assessments paid after July 1, 1991, the cabinet shall refund or grant a credit against the next assessment to come due, on a pro-rated basis, any money collected in one (1) year in excess of the cap. (13) (a) There is hereby created within the State Treasury a trust and agency fund which shall not lapse to be known as the hazardous waste management fund. The fund shall be deposited in an interest-bearing account. The cabinet shall be responsible for collecting and receiving funds as provided in this section, and all such assessments collected or received by the State Treasury shall be deposited in the hazardous waste management fund. All interest earned on the money deposited in the fund shall be deposited to the fund. When the State Treasurer certifies to the cabinet that the uncommitted balance of the hazardous waste management fund exceeds six million dollars ($6,000,000), assessments shall not be collected until the State Treasurer certifies to the cabinet that the balance in the hazardous waste management fund is less than three million dollars ($3,000,000). The implementation of the cap on the fund shall be suspended from July 13, 1990, until July 1, 1991. In addition, for assessments paid after July 1, 1991, the cabinet shall refund or grant a credit against the next assessment to come due, on a pro-rated basis, any money collected in one (1) year in excess of the cap.
    2. In any fiscal year in which the fees assessed under this section total less than one million eight hundred thousand dollars ($1,800,000) in fiscal year 2007-2008 dollars, adjusted annually to reflect any increase in the cost-of-living index, the difference between the fee receipts and the adjusted minimum balance shall be transferred from funds collected pursuant to KRS 224.60-130 .
    3. The cabinet shall file with the Legislative Research Commission a biennial report, beginning two (2) years after July 15, 2008, on the revenues and expenditures of the fund.
  13. There is hereby created within the State Treasury a trust and agency account which shall not lapse to be known as the pollution prevention fund. The fund shall be placed in an interest-bearing account. The fund shall be administered by the Center for Pollution Prevention. The cabinet shall remit to the fund each fiscal year twenty percent (20%) of the funds received by the hazardous waste management fund subject to the enacted budget bill.
  14. Upon request of the secretary, moneys accumulated in the hazardous waste management fund shall be released in amounts necessary to accomplish the performance of the duties imposed by subsection (3) of this section. However, moneys from the fund shall not be used when federal moneys are available to carry out these duties, except when immediate action is required to protect public health or the environment, in which case the cabinet shall actively pursue reimbursement of the fund by any available federal moneys.
  15. If any person responsible for a release or threatened release of a hazardous substance fails to take response actions or to make reasonable progress in completing response actions ordered by the cabinet, the cabinet may bring an action to compel performance or may take appropriate response actions and order the responsible person to reimburse the cabinet for the actual costs incurred by the cabinet.
  16. If disposal activities have occurred at a hazardous waste site, the cabinet shall record in the office of the county clerk in the county in which a waste site is situated a notice containing a legal description of the property that discloses to any potential transferee that the land was used to dispose hazardous waste and that further information on the hazardous waste site may be obtained from the cabinet.
  17. No person shall affect the integrity of the final cover, liners, or any other components of any containment system after closure of a hazardous waste site on or in which hazardous waste remains without prior written approval of the cabinet.

HISTORY: Enact. Acts 1980, ch. 263, § 1, effective July 15, 1980; 1984, ch. 363, § 1, effective July 13, 1984; 1986, ch. 237, § 8, effective July 15, 1986; 1986, ch. 298, § 1, effective July 15, 1986; 1988, ch. 159, § 1, effective July 15, 1988; 1990, ch. 432, § 1, effective July 13, 1990; 1990, ch. 496, § 57, effective July 13, 1990; 1994, ch. 460, § 8, effective July 15, 1994; 2000, ch. 351, § 1, effective July 14, 2000; 2002, ch. 54, § 1, effective July 15, 2002; 2004, ch. 44, § 1, effective July 13, 2004; 2006, ch. 36, § 1, effective July 12, 2006; 2008, ch. 104, § 1, effective July 15, 2008; 2010, ch. 24, § 372, effective July 15, 2010; 2015 ch. 77, § 1, effective June 24, 2015.

Compiler’s Notes.

This section was formerly compiled as KRS 224.876 .

The Comprehensive Environmental Compensation and Liability Act of 1980 (Public Law 96-510), referred to in this section, is compiled as 42 USCS § 9601 et seq.

Title III, Section 313 of the Superfund Amendments and Reauthorization Act of 1986, referred to in subsection (1) of this section, is compiled as 42 USCS § 11023.

The federal Clean Water Act, referred to in this section, is compiled as 33 USCS § 1251 et seq.

This section is set out above to reflect a correction to the section reference appearing in subsection (3)(a) from 224.01-400 to 224.1-400 due to renumbering by the state reviser effective in 2013.

Legislative Research Commission Note.

(7/15/2008). The numbering of subsections in this section has been altered by the Reviser of Statutes from the numbering in 2008 Ky. Acts ch. 104, sec. 1, under the authority of KRS 7.136 .

See definition of “special wastes” in KRS 224.50-760 (1).

Research References and Practice Aids

Kentucky Law Journal.

Stephens, Commencing the Decade With Environmental Reform: The 1980 Kentucky General Assembly Implements the Resource Conservation and Recovery Act of 1976, 69 Ky. L.J. 227 (1980-81).

224.46-590. Feasibility study of hazardous waste treatment-industrial park complex plan. [Expired]

The secretary of the Cabinet for Economic Development shall cooperate with the special assistant to the Governor for coal and energy policy in examining the feasibility of a hazardous waste treatment-industrial park complex approach to the siting of hazardous waste management facilities and the promotion of industrial development. Consistent with the state policy of encouraging reuse and treatment of hazardous waste and of minimizing land disposal, the study shall be based on development of integrated facilities consisting of a variety of treatment and disposal systems at a given site associated with industrial plants. The study shall at a minimum:

  1. Survey the attitudes of various industries towards this approach;
  2. Survey public attitudes and perceptions towards this approach;
  3. Identify the advantages and disadvantages to industry, the Commonwealth, and local communities;
  4. Survey the degree to which the availability of hazardous waste management facilities has a bearing on the location of new industry;
  5. Develop a list of industry types with compatible waste streams for exchange, neutralization, or incineration;
  6. Identify economic or technical barriers to this approach; and
  7. Report its findings and recommendations to the 1982 General Assembly.

History. Enact. Acts 1980, ch. 197, § 3, effective July 15, 1980; 1982, ch. 396, § 50, effective July 15, 1982; 1990, ch. 325, § 29, effective July 13, 1990.

Compiler’s Notes.

This section was originally compiled as KRS 224.218 and was renumbered as KRS 224.903 prior to being renumbered as this section.

Integrated Waste Treatment and Disposal Facilities

224.46-810. Definitions. [Repealed]

History. Enact. Acts 1982, ch. 279, § 1, effective July 15, 1982; 2010, ch. 24, § 373, effective July 15, 2010; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 279, § 1, effective July 15, 1982; 2010, ch. 24, § 373, effective July 15, 2010) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.46-820. Kentucky Regional Integrated Waste Treatment and Disposal Facility Siting Board. [Repealed]

History. Enact. Acts 1982, ch. 279, § 2, effective July 15, 1982; 1990, ch. 496, § 56, effective July 13, 1990; 1998, ch. 426, § 508, effective July 15, 1998; 2005, ch. 99, § 563, effective June 20, 2005; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 279, § 2, effective July 15, 1982; 1990, ch. 496, § 56, effective July 13, 1990; 1998, ch. 426, § 508, effective July 15, 1998; 2005, ch. 99, § 563, effective June 20, 2005) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.46-825. Powers and duties of board. [Repealed]

History. Enact. Acts 1982, ch. 279, § 3, effective July 15, 1982; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 279, § 3, effective July 15, 1982) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.46-830. Certificate of environmental safety and public necessity — Application — Factors considered — Presentation of findings — Appeals. [Repealed]

History. Enact. Acts 1982, ch. 279, § 4, effective July 15, 1982; 1984, ch. 111, § 111, effective July 13, 1984; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 279, § 4, effective July 15, 1982; 1984, ch. 111, § 111, effective July 13, 1984) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.46-840. Site requirements — Qualified hazardous waste. [Repealed]

History. Enact. Acts 1982, ch. 279, § 5, effective July 15, 1982; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 279, § 5, effective July 15, 1982) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.46-850. Establishment of plan for industrial park component of site. [Repealed]

History. Enact. Acts 1982, ch. 279, § 6, effective July 15, 1982; 1990, ch. 325, § 30, effective July 13, 1990; 1994, ch. 277, § 6, effective July 15, 1994; 1996, ch. 113, § 9, effective July 15, 1996; 2000, ch. 2, § 7, effective July 14, 2000; 2006, ch. 152, § 8, effective July 12, 2006; 2010, ch. 24, § 374, effective July 15, 2010; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler's Notes.

This section (Enact. Acts 1982, ch. 279, § 6, effective July 15, 1982; 1990, ch. 325, § 30, effective July 13, 1990; 1994, ch. 277, § 6, effective July 15, 1994; 1996, ch. 113, § 9, effective July 15, 1996; 2000, ch. 2, § 7, effective July 14, 2000; 2006, ch. 152, § 8, effective July 12, 2006; 2010, ch. 24, § 374, effective July 15, 2010) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.46-860. Operational report. [Repealed]

History. Enact. Acts 1982, ch. 279, § 7, effective July 15, 1982; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler's Notes.

This section (Enact. Acts 1982, ch. 279, § 7, effective July 15, 1982) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

224.46-870. Planning for future needs. [Repealed]

History. Enact. Acts 1982, ch. 279, § 10, effective July 15, 1982; 1990, ch. 325, § 31, effective July 13, 1990; 1994, ch. 277, § 7, effective July 15, 1994; 1996, ch. 113, § 10, July 15, 1996; 2000, ch. 2, § 8, effective July 14, 2000; 2006, ch. 152, § 9, effective July 12, 2006; 2010, ch. 24, § 375, effective July 15, 2010; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 279, § 10, effective July 15, 1982; 1990, ch. 325, § 31, effective July 13, 1990; 1994, ch. 277, § 7, effective July 15, 1994; 1996, ch. 113, § 10, July 15, 1996; 2000, ch. 2, § 8, effective July 14, 2000; 2006, ch. 152, § 9, effective July 12, 2006; 2010, ch. 24, § 375, effective July 15, 2010) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

SUBCHAPTER 50. Other Specific Types of Waste

Agricultural Chemicals

224.50-020. Advisory committee for agricultural chemical and chemical container disposal program. [Repealed]

History. Enact. Acts 1992, ch. 312, § 1, effective July 14, 1992; repealed by 2017 ch. 117, § 49, effective June 29, 2017.

Compiler’s Notes.

This section (Enact. Acts 1992, ch. 312, § 1, effective July 14, 1992) was repealed by Acts 2017, ch. 117, § 49, effective June 29, 2017.

Chemical Munitions

224.50-130. Legislative findings — Chemical munitions waste treatment or disposal — Requirements for treatment or disposal permits — Restrictions governing permits — Reclassification of residues of demilitarization process.

  1. The General Assembly of Kentucky finds that:
    1. The compounds listed in subsection (2) of this section were designed and configured to be utilized for warfare, with the purpose of incapacitating or inducing lethality in persons who come in contact with the compounds, and that the compounds have no legitimate civilian use;
    2. The Commonwealth of Kentucky owes to its residents a duty of utmost care to assure that no person will be exposed to these compounds or the degradation by-products of these compounds through purposeful or accidental release of the compounds into the air, land, or water of the Commonwealth, and also owes a duty to utilize the police powers of the Commonwealth to guarantee the safe demilitarization, decommissioning, dismantling, and disposal of weapons containing these compounds and to eliminate potential risks of exposure from the treatment and disposal of the compounds;
    3. Section 6929 of Title 42 of the United States Code, specifically recognizes and reserves to the Commonwealth the authority to impose reasonable restrictions directly relating to public health and safety with respect to the management of hazardous wastes beyond the minimum standards established under federal law; and
    4. The acute and chronic health effects and environmental consequences of exposure to the compounds and the degradation by-products of the compounds listed in subsection (2) of this section, given the high acute toxicity of the compounds relative to other regulated hazardous wastes, justify the imposition of standards correlative to the uncertainties and severity of risks potentially posed by the treatment or disposal of the compounds.
  2. Notwithstanding any other provision of this chapter, within thirty (30) days after July 15, 1988, the cabinet shall list the following compounds as hazardous wastes for the purposes of regulation of the treatment, storage, and disposal of the wastes under the delegated authority of the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq.: GB (isopropyl methyl phosphonoflouridate); VX (O-ethyl-S-(2-diisopropylaminoethyl) methyl phosphonothiolate); and H (bis(2-chloroethyl) sulfide) and related compounds.
  3. In addition to the requirements of KRS 224.46-520 (1), the cabinet shall consider the criteria set forth in this subsection in making a determination to issue, deny, or condition a permit for any person desiring a permit to construct or operate a hazardous-waste site or facility for treatment or disposal of any of the compounds identified in subsection (2) of this section. The applicant shall affirmatively demonstrate, and the cabinet shall find prior to issuance, conditional issuance, or denial of the permit or draft permit, that:
    1. The proposed treatment or destruction technology has been fully proven in an operational facility of scale, configuration, and throughput comparable to the proposed facility, or has been demonstrated as effective, within the chemical weapons disposal programs as directed in Pub. L. 104-208 and other applicable federal laws, sufficient to provide assurance of destruction or neutralization and removal efficiency of ninety-nine and nine thousand, nine hundred, and ninety-nine ten thousandths percent (99.9999%) for each compound listed in subsection (2) of this section that is proposed to be treated or destroyed, with the efficiency to be demonstrated as achievable under all operating conditions. During the occurrence of malfunctions, upsets, or unplanned shutdowns, all quantities of any compound listed in subsection (2) of this section shall be contained, reprocessed or otherwise controlled so as to ensure that the required efficiency is attained prior to any release to the environment;
    2. Monitoring data from an operational facility or alternative disposal program as described in paragraph (a) of this subsection reflects that the emissions from treatment and destruction facilities or fugitive sources, including, but not limited to, the emissions of the compounds identified in subsection (2) of this section and products of combustion, incomplete combustion, and other processes alone or in combination present no more than a minimal risk of acute or chronic human health effect, as demonstrated by sufficient and applicable toxicological data, or adverse environmental effect; and
    3. An emergency response plan has been submitted to the cabinet and approved, after public notice and an opportunity to be heard, providing for sufficient training, coordination, and equipment for state and local emergency response personnel, including health, police, fire, and other responders, to assure the ability of the community to respond to releases from such a facility. The plan shall demonstrate the capability of evacuating prior to exposure, or otherwise mitigating exposure for all individuals that might be exposed to releases from the facility during a credible worst-case release. In determining the population and area of potential exposure during a worst-case release, all possible climatic conditions and population distributions shall be assumed for the largest area where any exposure to the release could induce acute or chronic health consequences or environmental impact. If such a plan has not been fully implemented at the time of permit approval, the Division of Emergency Management shall advise the cabinet of critical shortcomings. Any permit issued shall include, as conditions, the resolution of critical shortcomings in the implementation of the plan, and shall not allow actual destruction of any of the compounds identified in subsection (2) of this section to begin until those permit conditions have been met to the satisfaction of the Division of Emergency Management. No later than January 1, 2001, the Division of Emergency Management shall complete an assessment of a draft plan previously submitted by the applicant and the respective counties and, after public notice and an opportunity to be heard, shall approve or reject the draft plan. The cabinet shall conduct no technical review of a permit application for treatment or disposal of these compounds until notified in writing by the Division of Emergency Management that the draft plan has been approved.
  4. In considering any application for a permit subject to this section, and supporting information which shall be provided by the applicant on request by the cabinet, the cabinet shall not issue a permit unless, as part of the alternatives analysis of KRS 224.46-520 (1), the cabinet makes an affirmative finding after public notice and an opportunity to be heard, that no alternative method of treatment or disposal exists in an operational facility or alternative disposal program as described in subsection (3)(a) of this section that create less risk of release, or acute or chronic health effect, or adverse environmental effect.
  5. In addition to the definition of the term as defined in this chapter, the term “treatment,” as used in this section, shall include the manual or mechanical handling of the chemical compounds listed in subsection (2) of this section and of any munitions containing the compounds during the processing of munitions to remove the compounds, to separate munitions components, and to otherwise prepare the components and compounds for destruction, neutralization, dismantling, or decommissioning. The term “treatment” shall not include the handling, movement, or overpacking of containers or munitions containing a compound listed in subsection (2) of this section within the fenced boundaries of an area used for the storage of those munitions if:
    1. A plan for the handling, movement, or overpacking is submitted and approved by the cabinet, after public notice and opportunity to be heard, before the handling, movement, or overpacking occurs; or
    2. An emergency has occurred and the handling, movement, or overpacking is necessary to protect human health, safety, or the environment, if a report describing the handling, movement, or overpacking is submitted to the cabinet as soon as possible after the emergency is abated.
  6. No site or facility for treatment or disposal of any of the substances identified in subsection (2) of this section shall be issued a permit to treat or destroy a live chemical agent as a research, development, or demonstration permit except for a pilot scale operation.
  7. After the compounds listed in subsection (2) of this section have been treated to the treatment or destruction values identified in subsection (3)(a) of this section, or to comparable destruction or treatment values established by the cabinet where those values identified in subsection (3)(a) of this section are inapplicable, the cabinet shall reclassify any residues of the demilitarization process (secondary wastes) to ensure proper management and disposal consistent with the toxicity and hazard potential of those residual waste streams.
  8. In addition to other requirements of KRS 224.46-520 (1) and subsections (1) to (6) of this section, the cabinet shall not issue a permit or authorization to construct or operate a hazardous waste site or facility for treatment or disposal of any of the compounds identified in subsection (2) of this section unless the applicant provides written documentation from the host county certifying that:
    1. All infrastructure improvements identified in the final emergency response plan required in subsection (3)(c) of this section as being reasonably necessary to assure the ability of the community to effectively respond to releases from the facility in order to protect public health and the environment under the emergency response plan, have been or will be completed by the applicant prior to operation of the facility; and
    2. The applicant has provided to the host county sufficient funding for reasonable direct and indirect costs of the creation and maintenance of the position of host community liaison. The host community liaison will be determined by the host county and will act as the single point of contact for community relations, emergency planning, and community oversight of the construction, operation, closure, and emergency response of the facility.

History. Enact. Acts 1988, ch. 86, § 1, effective July 15, 1988; 1992, ch. 174, § 1, effective July 14, 1992; 2000, ch. 482, § 1, effective July 14, 2000; 2003, ch. 149, § 1, effective June 24, 2003; 2016 ch. 44, § 1, effective April 6, 2016.

Compiler’s Notes.

This section was formerly compiled as KRS 224.865 .

224.50-135. Review requirement for proposed change in use of permitted site or facility.

If a hazardous waste site or facility that has been permitted under KRS 224.50-130 for treatment, storage, or disposal of any of the substances identified in KRS 224.50-130 (2) proposes to utilize the facility for the treatment, storage, or disposal of other waste, the proposed change shall be subject to review under KRS 224.46-520 (1) and KRS 224.50-130.

History. Enact. Acts 1994, ch. 157, § 1, effective July 15, 1994.

Lead Acid Batteries

224.50-410. Disposal of lead acid batteries.

  1. No person shall knowingly:
    1. Dispose of lead acid batteries by placing them in mixed solid waste;
    2. Accept lead acid batteries for disposal in a landfill or an incinerator; or
    3. Discard or abandon a lead acid battery in any manner except as allowed by subsection (2) of this section.
  2. Proper disposal of lead acid batteries shall mean delivery to:
    1. A retail seller of new lead acid batteries;
    2. A person who sells lead acid batteries at wholesale;
    3. A permitted secondary lead smelter;
    4. A facility which will recycle the batteries by extracting the lead and chemical components for reuse; or
    5. A collection center which delivers to a smelter or a recycling facility.

History. Enact. Acts 1990, ch. 84, § 1, effective July 13, 1990.

Compiler’s Notes.

This section was formerly compiled as KRS 224.2502 .

224.50-413. Duties of retail sellers of new lead acid batteries.

  1. Retail sellers of new lead acid batteries shall:
    1. Accept, if offered, used lead acid batteries, but the seller shall be required to accept only one (1) used battery for each new battery sold; and
    2. Post notice at the place of retail sales that they are required to accept, if offered, a used lead acid battery for each new battery sold.
  2. Wholesale sellers of new lead acid batteries shall:
    1. Accept used lead acid batteries of the same type as the new batteries sold and in a quantity equal to the number of new batteries sold; and
    2. Remove used lead acid batteries from the retailer’s place of business no later than ninety (90) days after the retailer notifies the wholesaler that there are used lead acid batteries ready for recycling.

History. Enact. Acts 1990, ch. 84, § 2, effective July 13, 1990.

Compiler’s Notes.

This section was formerly compiled as KRS 224.2505 .

Oil

224.50-545. Findings — Definitions — Prohibitions — Policy to encourage reuse — Posting notice of collection sites — Representation of used oil as new oil — Registration of used oil collectors and recyclers.

  1. It is the finding of the General Assembly that almost nineteen (19) million gallons of used automotive and industrial oil are generated each year in the state; that used oil is a valuable petroleum resource which can be recycled; and that, in spite of this potential for recycling, significant quantities of used oil are wastefully disposed of or improperly used by means which pollute the water, land, and air and endanger the public health and welfare; and that the inflationary impact of increased oil costs and an accompanying shortage of lubrication oil necessitate that waste oil be recycled.
  2. As used in this section:
    1. “Used oil” means a petroleum based or synthetic oil such as an engine lubricant, engine oil, motor oil, or lubricating oil for use in an internal combustion engine, or a lubricant for motor transmissions, gears, or axles which through use, storage or handling has become unsuitable for its original purpose due to the presence of impurities or loss of original properties.
    2. “Recycle” means to prepare used oil as a petroleum product or petroleum product substitute by refining, rerefining, reclaiming, reprocessing, or other means or to use used oil in a manner that substitutes for a petroleum product or petroleum product substitute made from new oil, provided that the preparation or use is operationally safe, environmentally sound, and complies with all laws and regulations.
    3. “Rerefined oil” means used oil which is rerefined to remove the physical and chemical contaminants acquired through use which by itself or when blended with new oil or additives, is substantially identical or superior to new oil intended for the same purposes, as specified by rules prescribed by the Federal Trade Commission under Section 383(d)(1) of the Energy Policy and Conservation Act (P.L. 94-163).
  3. No person shall collect, transport, transfer, store, recycle, use, or dispose of used oil in any manner which endangers the public health or welfare or violates any law or regulation.
  4. No person shall dispose of used oil by discharge into sewers, drainage systems, surface or groundwaters, or incineration other than for energy generating purposes.
  5. The General Assembly declares that used oil shall be collected and recycled to the maximum extent possible by means which are economically feasible and environmentally sound in order to conserve irreplaceable petroleum resources, preserve and enhance the quality of natural and human environments, and protect public health and welfare.
  6. All officials of this state and any of its agencies or political subdivisions shall encourage and, to the extent possible, require the procurement and purchase of recycled oil products represented as substantially equivalent to products made from new oil in accordance with this section whenever such products are available at prices competitive with those of new oil produced for the same purposes.
  7. The cabinet shall encourage the establishment of voluntary used oil collection and recycling programs and provide technical assistance to persons organizing such programs.
  8. The cabinet shall establish a list of used oil collectors and the specific counties or areas within the Commonwealth in which each collector has by written agreement or contract with the cabinet agreed to serve. The cabinet shall make arrangements with each waste oil collector for routing schedules to assure that collection tanks are regularly served by a used oil collector.
  9. The cabinet shall notify all persons who sell automotive or industrial oils to consumers in an amount in excess of five hundred (500) gallons per year of the used oil collector or collectors who have agreed to serve that area and the proposed collection and routing schedules.
  10. Upon notification that arrangements have been made to collect waste oil in that area, any person who sells automotive or industrial oils to consumers in an amount in excess of five hundred (500) gallons per year shall post at the point of purchase durable and legible signs not less than eight and one-half (81/2) by eleven (11) inches in size detailing the locations of conveniently located collection facilities.
  11. A person may represent any product made in whole or in part from used oil to be substantially equivalent to a product made from new oil for a particular end use if the product conforms fully with the specifications applicable to that product made from new oil or if substantial equivalency has been determined in accordance with rules prescribed by the Federal Trade Commission under Section 383(d)(1) of the Energy Policy and Conservation Act (P.L. 94-163). Otherwise, the product must be represented as made from previously used oil.
  12. The cabinet shall encourage the use of labeling for oil containers to inform the user of the importance of proper collection and disposal of used oil.
  13. No person, except a person collecting solely from sources owned and operated by that person, shall transport more than five hundred (500) gallons of used oil annually over public highways or maintain any storage facility that receives more than ten thousand (10,000) gallons of used oil annually without first registering as a used oil collector with the cabinet. A registered used oil collector shall:
    1. Transfer used oil only to another registered used oil collector, a recycler registered with the cabinet, or a person outside the state;
    2. Provide a receipt to any person to whom used oil is transferred; maintain a complete record of all such transactions, documented by reproducible receipts, for two (2) years; and make available to the cabinet, upon request, all records and copies of receipts for the purpose of review and audit;
    3. Submit an annual report to the cabinet on its activities during the calendar year based on the records kept in accordance with this section. The report shall state the quantities of used oil possessed at the beginning and end of the reporting period, the total amount collected, and the amounts transferred during the reporting period. The amounts transferred shall be itemized as to used oil collectors, used oil recyclers, and by the state or foreign country for those persons outside the state.
  14. No person, except a person recycling solely from sources owned and operated by that person, shall recycle more than five thousand (5,000) gallons of used oil annually without first registering as a used oil recycler with the cabinet. A registered used oil recycler shall:
    1. Provide a receipt to any person from whom used oil is received; maintain a complete record of all such transactions, documented by reproducible receipts, for two (2) years; maintain records on the quantities of used oil recycled; and make available to the cabinet, upon request, all records and copies of receipts for the purpose of review and audit;
    2. Submit an annual report to the cabinet on its activities during the calendar year based upon the records kept in accordance with this section. The report shall state the quantities of used oil possessed at the beginning and end of the reporting period, the total amount received, and the amounts recycled during the reporting period. The amounts recycled shall be itemized as follows: prepared for reuse as a petroleum product; consumed in the process of preparing for reuse, including wastes generated; and other uses specifying each type of use.

History. Enact. Acts 1980, ch. 366, § 1, effective July 15, 1980.

Compiler’s Notes.

This section was formerly compiled as KRS 224.895 .

Section 383 of the Energy Policy and Conservation Act, referred to in subdivision (2)(c) and subsection (11), is compiled as 42 USCS § 6363.

Plastic Containers

224.50-585. Plastic resin code labeling.

  1. As used in this section:
    1. “Rigid plastic container” means any formed or molded article comprised predominantly of plastic resin and having a relatively inflexible finite shape or form intended primarily as a single service container with a capacity of eight (8) ounces or more and less than five (5) gallons;
    2. “Rigid plastic bottle” means any rigid plastic container with a neck that is smaller than the container body with a capacity of sixteen (16) ounces or more and less than five (5) gallons; and
    3. “Label” means a code label described in this section molded into the bottom of the plastic product.
  2. All rigid plastic bottles and rigid plastic containers sold in Kentucky on and after January 1, 1992, shall be labeled with a code which indicates the resin used to produce the rigid plastic bottle or rigid plastic container. The code shall consist of a number placed inside a triangle and letters placed below the triangle. The triangle shall be equilateral, formed by three (3) arrows with the apex of each point of the triangle at the midpoint of each arrow, rounded with a short radius. The pointer or arrowhead of each arrow shall be at the midpoint of each side of the triangle with a short gap separating the pointer from the base of the adjacent arrow. The triangle, formed by the three (3) arrows curved at their midpoints, shall depict a clockwise path around the code number. The numbers and letters used shall be as follows:

    1 = PETE (polyethylene terephthalate)

    2 = HDPE (high density polyethylene)

    3 = V (vinyl)

    4 = LDPE (low density polyethylene)

    5 = PP (polypropylene)

    6 = PS (polystyrene)

    7 = OTHER (represents all other resins, including layered plastics of a combination of materials).

  3. A rigid plastic bottle or rigid plastic container constructed with a layer of resin or other plastic component made of material different from that constituting the primary resin may be labeled with the code for the primary resin constituting the bottle or container if the manufacturer of the container or bottle provides documentation satisfactory to the cabinet that the manufacturer has successfully demonstrated and has received a letter from the Association of Postconsumer Plastic Recyclers (APR) confirming that the bottle meets or exceeds the APR Critical Guidance Document and APR General Guidance Document Bottle-to-Bottle protocol. After receipt and review of satisfactory documentation, the cabinet shall provide a letter of approval and designation of the resin code that may be used.

History. Enact. Acts 1991 (1st Ex. Sess.), ch. 12, § 62, effective February 26, 1991; 2008, ch. 19, § 1, effective July 15, 2008.

Compiler’s Notes.

This section was formerly compiled as KRS 224.251 .

Special Wastes

224.50-760. Special wastes — Exemptions from KRS 224.46-510 and 224.46-520 — Permit — Notice — Hearing.

    1. For purposes of this section and KRS 224.46-580 (7), special wastes are those wastes of high volume and low hazard which include but are not limited to mining wastes, utility wastes (fly ash, bottom ash, scrubber sludge), wastes from coal gasification facilities (vitrified coarse solid residues, prilled or blocked sulfur) approved by the cabinet based on submittal of appropriate testing demonstrating that the wastes are of low hazard, sludge from water treatment facilities and wastewater treatment facilities, cement kiln dust, gas and oil drilling muds, and oil production brines. Other wastes may be designated special wastes by the cabinet; (1) (a) For purposes of this section and KRS 224.46-580 (7), special wastes are those wastes of high volume and low hazard which include but are not limited to mining wastes, utility wastes (fly ash, bottom ash, scrubber sludge), wastes from coal gasification facilities (vitrified coarse solid residues, prilled or blocked sulfur) approved by the cabinet based on submittal of appropriate testing demonstrating that the wastes are of low hazard, sludge from water treatment facilities and wastewater treatment facilities, cement kiln dust, gas and oil drilling muds, and oil production brines. Other wastes may be designated special wastes by the cabinet;
    2. Disposal sites or facilities for special wastes shall be exempt from the provisions of KRS 224.46-520 and the provisions of KRS 224.43-810 and 224.43-815 but may be regulated by the cabinet consistent with the Resource Conservation and Recovery Act of 1976, as amended (Pub. L. 94-580), and regulations issued pursuant thereto, unless the special waste received is listed or meets the criteria of a hazardous waste in regulations pursuant to KRS 224.46-510 (3). If the special waste is a hazardous waste as specified in regulations pursuant to KRS 224.46-510 (3), the site or facility shall be required by the cabinet to comply with the provisions of KRS 224.46-520 but shall not be subject to the requirements of KRS 224.40-310 (6);
    3. Generators of special wastes shall register with the cabinet and be subject to the provisions of KRS 224.46-510, except for generators of coal mining wastes which shall be regulated pursuant to the provisions of KRS Chapter 350;
    4. The cabinet shall, when promulgating regulations affecting special waste, recognize special waste as a separate and distinct indivisible category and shall recognize the distinct differences between the category of special wastes and other hazardous wastes and solid wastes as defined in KRS 224.1-010 (31)(a) and 109.012(12) due to the fact that special wastes have large volume but low hazardousness. The cabinet’s regulations for the generation, transport, recordkeeping, reporting, treatment, storage, and disposal shall reflect those distinct differences. The cabinet’s regulations shall recognize and incorporate, where appropriate, and if consistent with the policies of KRS 224.46-510 to 224.46-570 , any deadline extensions, studies, and specialized requirements for specific kinds of special wastes that are or may be undertaken at the federal or other levels of government; and
    5. It is the intent of the General Assembly that the processing of sludge from water treatment facilities and wastewater treatment facilities by composting shall be considered an industrial process. The cabinet shall, when promulgating administrative regulations affecting sludge from water treatment facilities and wastewater treatment facilities, consider the treatment of this sludge by composting as an industrial process. The provisions of this paragraph and subsection (3) of this section shall not apply to a city, county, urban-county government, charter county government, or special district as defined in KRS Chapter 65, or to a public or private college or university that processes its own water treatment or wastewater treatment sludge by composting on property owned or leased by the city, county, urban-county government, charter county government, special district, or public or private college or university.
  1. Generators of waste oil shall be exempt from the provisions of KRS 224.46-510 and 224.46-520 so long as waste oil is not specified as a hazardous waste in regulations pursuant to KRS 224.46-510 (3) but may be regulated by the cabinet consistent with the Resource Conservation and Recovery Act of 1976, as amended (Pub. L. 94-580), and regulations issued pursuant thereto.
  2. A permit application to establish, operate, or modify a composting site or composting facility for the processing of water treatment sludge or wastewater treatment sludge, shall require immediately the general public notice provided for in KRS 224.40-310 (4) and (5). If a hearing is requested, no permit to establish, operate, or modify a composting site or facility shall be issued prior to the public hearing. The hearing shall be held within the county where the composting site or facility is located or proposed. Composting of this sludge shall be considered an industrial process.

HISTORY: Enact. Acts 1980, ch. 263, § 3, effective July 15, 1980; 1980, ch. 264, § 8, effective July 15, 1980; 1982, ch. 74, § 26, effective July 15, 1982; 1982, ch. 279, § 14, effective July 15, 1982; 1984, ch. 111, § 191, effective July 13, 1984; 1986, ch. 298, § 4, effective July 15, 1986; 1988, ch. 44, § 4, effective July 15, 1988; 1990, ch. 283, § 1, effective July 13, 1990; 1991 (1st Ex. Sess.), ch. 12, § 40, effective February 26, 1991; 1998, ch. 570, § 3, effective July 15, 1998; 2000, ch. 499, § 1, effective July 14, 2000; 2008, ch. 57, § 1, effective July 15, 2008; 2017 ch. 48, § 5, effective June 29, 2017; 2017 ch. 117, § 23, effective June 29, 2017.

Compiler’s Notes.

This section was formerly compiled as KRS 224.868 .

The Resource Conservation and Recovery Act, Public Law 94-580, referred to in subdivision (1)(b) and subsection (2), is compiled as 42 USCS § 6901 et seq.

Legislative Research Commission Notes.

(6/29/2017). This statute was amended by 2017 Ky. Acts chs. 48 and 117, which do not appear to be in conflict and have been codified together.

Research References and Practice Aids

Kentucky Law Journal.

Stephens, Commencing the Decade With Environmental Reform: The 1980 Kentucky General Assembly Implements the Resource Conservation and Recovery Act of 1976, 69 Ky. L.J. 227 (1980-81).

Cox, What May States Do About Out-of-State Waste in Light of Recent Supreme Court Decisions Applying the Dormant Commerce Clause? Kentucky As Case Study in the Waste Wars, 83 Ky. L.J. 551 (1994-95).

Northern Kentucky Law Review.

Reynolds, Who’s Going to Regulate NORM?, 22 N. Ky. L. Rev. 5 (1995).

Tires

224.50-820. Waste tire trust fund. [Repealed].

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 368, § 1, effective January 16, 1991) was repealed by Acts 1998, ch. 529, § 17, effective July 15, 1998.

224.50-822. Fee to be paid on each new motor vehicle tire sold — Monthly payment and report — Deposit of money in trust fund. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 368, § 2, effective January 16, 1991; 1994, ch. 54, § 5, effective July 15, 1994) was repealed by Acts 1998, ch. 529, § 17, effective July 15, 1998.

224.50-823. Monthly report on number of new motor vehicle tires sold. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1994, ch. 415, § 3, effective July 15, 1994) was repealed by Acts 1998, ch. 529, § 17, effective July 15, 1998.

224.50-824. Waste Tire Removal and Control Program — Purpose of program. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 368, § 3, effective January 16, 1991) was repealed by Acts 1998, ch. 529, § 17, effective July 15, 1998.

224.50-826. Requirements applicable to existing waste tire piles. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 368, § 4, effective January 16, 1991) was repealed by Acts 1998, ch. 529, § 17, effective July 15, 1998.

224.50-828. Agreements with private parties and local governments to clean up waste tire piles. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 368, § 5, effective January 16, 1991) was repealed by Acts 1998, ch. 529, § 17, effective July 15, 1998.

224.50-829. Requirement of financial assurances from waste tire processors and recyclers. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1996, ch. 47, § 1, effective July 15, 1996) was repealed by Acts 1998, ch. 529, § 17, effective July 15, 1998.

224.50-830. Prohibitions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 368, § 6, effective January 16, 1991; 1994, ch. 415, § 1, effective July 15, 1994) was repealed by Acts 1998, ch. 529, § 17, effective July 15, 1998.

224.50-832. Registration of accumulations — Information required — Standards for controlling accumulations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 368, § 7, effective January 16, 1991) was repealed by Acts 1998, ch. 529, § 17, effective July 15, 1998.

224.50-834. Loan program. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 368, § 8, effective January 16, 1991) was repealed by Acts 1998, ch. 529, § 17, effective July 15, 1998.

224.50-836. Agreement with Cabinet for Human Resources for enforcement purposes. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 368, § 9, effective January 16, 1991) was repealed by Acts 1998, ch. 529, § 17, effective July 15, 1998.

Legislative Research Commission Note.

(7/15/98). Under KRS 446.260 , the repeal of this section in 1998 Ky. Acts ch. 529 prevails over its amendment in 1998 Ky. Acts ch. 426.

224.50-838. Exemptions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 368, § 10, effective January 16, 1991) was repealed by Acts 1998, ch. 529, § 17, effective July 15, 1998.

224.50-840. Conditions under which accumulations of waste tires presently in use as an integral part of a business allowed. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 368, § 11, effective January 16, 1991) was repealed by Acts 1998, ch. 529, § 17, effective July 15, 1998.

224.50-842. Accumulations for agricultural purposes. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 368, § 12, effective January 16, 1991) was repealed by Acts 1998, ch. 529, § 17, effective July 15, 1998.

224.50-844. Exemption for contractor for lawful disposal of waste tires. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 368, § 13, effective January 16, 1991; 1994, ch. 415, § 2, effective July 15, 1994) was repealed by Acts 1998, ch. 529, § 17, effective July 15, 1998.

224.50-846. Effective date. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 368, § 14, effective January 16, 1991) was repealed by Acts 1998, ch. 529, § 17, effective July 15, 1998.

224.50-850. Legislative findings.

The General Assembly finds that waste tires are a threat to human health, safety, and the environment when they are not properly managed. The General Assembly further finds that waste tires can be used in civil engineering applications, as tire-derived fuel, and may be recycled, but that markets for these uses have not been adequately developed. Therefore, a waste tire program should be established to manage waste tires in a way that protects human health, safety, and the environment, and which encourages the development of markets for waste tires.

History. Enact. Acts 1998, ch. 529, § 1, effective July 15, 1998.

224.50-852. Waste tire program — Administrative regulations.

  1. A waste tire program is created to manage waste tires which for the purposes of KRS 224.50-850 to 224.50-880 shall include:
    1. Tires not used for their original, intended purpose due to wear or damage;
    2. Used tires stored for resale; and
    3. Processed waste tire material.
  2. The cabinet may promulgate administrative regulations to implement the waste tire program.

History. Enact. Acts 1998, ch. 529, § 2, effective July 15, 1998.

224.50-854. Exemptions.

The waste tire program shall not apply to:

  1. A person who accumulates waste tires for an agricultural purpose;
  2. A person who stores waste tires for resale, if the storage of the waste tires complies with environmental performance standards established by the cabinet for waste sites or facilities and follows common business practices of storing new motor vehicle tires on racks and moving the waste tires indoors at the close of the business day;
  3. A person who accumulated up to seven hundred and fifty (750) waste tires before January 16, 1991, and who meets the following conditions:
    1. The waste tires are used as an integral part of a business, including safety barriers but excluding storage or disposal;
    2. The number of waste tires has not increased since January 16, 1991; and
    3. The person certifies to the cabinet within thirty (30) days of July 15, 1998, that actions have been taken to prevent fires and the spread of illness through disease vectors.

History. Enact. Acts 1998, ch. 529, § 3, effective July 15, 1998.

224.50-855. Waste Tire Working Group — Members — Meetings — Duties.

  1. The Waste Tire Working Group is hereby established and shall be attached to the cabinet for administrative purposes and staff support.
  2. The Waste Tire Working Group shall have the following eight (8) members:
    1. The director of the Division of Waste Management or his or her designee who shall be an ex officio member and also serve as chair;
    2. The manager of the Recycling and Local Assistance Branch within the Division of Waste Management or his or her designee who shall be an ex officio member;
    3. One (1) representative of the Kentucky Department of Agriculture, to be selected by the Commissioner of Agriculture and appointed by the Governor for an initial term of two (2) years and who may be reappointed;
    4. Two (2) representatives of the Solid Waste Coordinators of Kentucky selected by the Solid Waste Coordinators of Kentucky and appointed by the Governor for an initial term of three (3) years and who may be reappointed;
    5. One (1) county judge/executive appointed by the Governor from a list of three (3) nominees submitted by the Kentucky County Judge/Executive Association for an initial term of three (3) years and who may be reappointed;
    6. One (1) mayor of a Kentucky city appointed by the Governor from a list of three (3) nominees submitted by the Kentucky League of Cities; and
    7. One (1) representative of private industry engaged in the business of retail tire sales appointed by the Governor for an initial term of three (3) years and who may be reappointed.
  3. The members of the Waste Tire Working Group identified in paragraphs (c), (d), (e), (f), and (g) of subsection (2) of this section shall receive travel-related expenses but no salary as compensation.
  4. The first meeting of the Waste Tire Working Group shall be no later than August 15, 2011. The working group shall meet at least twice a year or more frequently at the call of the chair.
  5. The Waste Tire Working Group shall:
    1. Provide advice and input to the cabinet regarding:
      1. The administration and implementation of alternative methods for controlling the local accumulation of waste tires;
      2. Developing the concept of a core fee for waste tires;
      3. Improving the manifest system that tracks tires from point of sale to point of disposal;
      4. Developing ways to assist local governments with direct grants for waste tire disposal; and
      5. Developing an informational fact sheet on proper waste tire disposal under KRS 224.50-868 (3) and (8) to be made available on the cabinet’s Web site and available in print upon request;
    2. Serve as an advisory body to the cabinet in the development of a formula that the cabinet will use to apportion the money in the waste tire trust fund established by KRS 224.50-880 for crumb rubber grants, tire amnesties, and tire-derived fuel, and to return a portion of the waste tire funds to local governments during Commonwealth Cleanup Week for waste tire disposal; and
    3. Provide advice and input to the cabinet on the data development and preparation of the waste tire report mandated under KRS 224.50-872 .

History. Enact. Acts 2011, ch. 34, § 1, effective June 8, 2011; 2012, ch. 114, § 1, effective July 12, 2012; 2020 ch. 91, § 30, effective April 15, 2020.

224.50-856. Disposal of waste tires — Exceptions — Use of tire-derived fuel — Accumulation of waste tires — Transportation.

  1. No person shall engage in disposal of waste tires in Kentucky except by transfer to a permitted solid waste disposal facility and except as follows:
      1. If transferred to a contained landfill, the waste tires shall be processed to prevent the entrapment of air or water; (a) 1. If transferred to a contained landfill, the waste tires shall be processed to prevent the entrapment of air or water;
      2. If transferred to a residual landfill, the waste tires shall be rendered suitable for disposal in a landfill and the landfill shall accept only waste tires for disposal; or
      3. If transferred to an incinerator or to any facility for use as a fuel, the incinerator or other facility shall be permitted in accordance with KRS 224.20-110 and 224.40-310 to allow the burning of waste tires and shall have received a local determination related to the waste tires in accordance with KRS 224.40-315 (1); and
    1. Facilities proposing to use tire-derived fuel, as that term is defined in KRS 224.1-010 (53), as a fuel or for other energy recovery, shall not be required to receive a local determination related to the tire-derived fuel use under KRS 224.40-315 (1). The Division of Air Quality shall provide for public notice and an opportunity for comment on any application seeking approval for use of tire-derived fuel.
  2. No person shall accumulate more than twenty-five (25) waste tires in Kentucky at a time for processing, by baling, chopping, recycling, shredding, or other means of changing their shape, size, or chemical content without meeting the requirements of the waste tire program. For processing which had been approved by the cabinet before July 15, 1998, the person who had received the approval shall register within forty-five (45) days of July 15, 1998.
  3. No person shall transport more than fifty (50) waste tires in Kentucky at a time, either in one (1) vehicle or more than one (1) vehicle managed by or operated under contract with that person, without meeting the requirements of the waste tire program, unless transported in accordance with subsection (5) of this section.
  4. No person shall accumulate more than one hundred (100) waste tires in Kentucky at a time without meeting the requirements of the waste tire program, unless exempted by KRS 224.50-854 or accumulated in accordance with subsection (5) or (6) of this section. For accumulations of more than one hundred (100) tires not accumulated in accordance with subsection (5) or (6) of this section and existing on July 15, 1998, the person who has accumulated the tires shall register within forty-five (45) days of July 15, 1998.
  5. A person making retail sales of new motor vehicle tires in Kentucky may accumulate up to one thousand (1,000) waste tires at the place where retail sales are made without registering as an accumulator as required by KRS 224.50-858 , if the waste tires are stored in accordance with the requirements of KRS 224.50-860 (3), (5), (6), (7), and (8), and stored on-site in a building, in an adjacent covered area, or closed container where public access is prohibited after business hours. The retailer may transport the waste tires it accumulates at the place where retail sales are made without registering as a transporter as required by KRS 224.50-858 if the waste tires will remain in the retailer’s possession until they reach their destination.
  6. An automotive recycling dealer in Kentucky who is licensed by the Transportation Cabinet pursuant to KRS 190.010 to 190.080 may accumulate up to one thousand (1,000) waste tires at the place where automotive recycling is done without registering as an accumulator as required by KRS 224.50-858 if the waste tires are stored in accordance with KRS 224.50-860 (2) to (11) and stored on-site in a building, in an adjacent covered area, or closed container where public access is prohibited after business hours.

HISTORY: Enact. Acts 1998, ch. 529, § 4, effective July 15, 1998; 2007, ch. 30, § 2, effective June 26, 2007; 2017 ch. 117, § 24, effective June 29, 2017.

224.50-858. Registration — Letter of approval.

  1. Unless exempted by KRS 224.50-854 or as authorized by KRS 224.50-856 (4) and (5), no person shall accumulate more than twenty-five (25) waste tires at a time for processing, transport more than fifty (50) waste tires at a time, or accumulate more than one hundred (100) waste tires at a time without first registering and receiving a letter of approval from the cabinet.
  2. To register, the following shall be submitted:
    1. The person’s name and address;
    2. The address where the waste tires are to be accumulated or transferred;
    3. A statement of the purpose for accumulating, transporting, or processing the waste tires;
    4. A statement of the maximum number of waste tires to be accumulated, transported, or processed, and their passenger tire equivalents, as calculated under KRS 224.50-862 ;
    5. The rate at which waste tires are to be accumulated, transported, or processed;
    6. A certification stating that the person has read and understood the requirements of the waste tire program and will comply with those requirements;
    7. Financial assurance to pay for closure and corrective action as required by KRS 224.50-864 and 224.50-866 ; and
    8. A disclosure statement required by KRS 224.40-330 (2).
  3. The cabinet shall approve the registration when the registration requirements have been met.

History. Enact. Acts 1998, ch. 529, § 5, effective July 15, 1998.

224.50-860. Requirements for person registered as an accumulator, transporter, or processor.

A person required to register as an accumulator, transporter, or processor of waste tires shall:

  1. Manage the waste tires in accordance with the registration approved by the cabinet;
  2. Manage the waste tires in accordance with environmental performance standards established by the cabinet for waste sites or facilities;
  3. Store waste tires in a manner that allows fire fighting equipment access to the waste tires;
  4. Establish fire breaks to prevent the spread of fire;
  5. Prevent mosquito infestations and entrapment of water in the waste tires;
  6. Store waste tires stored outdoors in closed containers, in adjacent covered areas, or in windrows no greater than twenty-five (25) feet wide, ten (10) feet high, and seventy-five (75) feet long, with at least fifty (50) feet of open, unoccupied ground between windrows;
  7. Unless the waste tires are stored in buildings, in adjacent covered areas, or closed containers, store them no closer than:
    1. Thirty (30) feet from a utility easement, property line, or highway right-of-way;
    2. Two hundred fifty (250) feet from a residence; or
    3. Two hundred fifty (250) feet from a karst feature, surface water of the Commonwealth, or unplugged water well;
  8. Store waste tires on a surface with a grade of five percent (5%) or less which is free of vegetation and other flammable materials;
  9. Display a permanent sign legible at one hundred (100) feet which identifies the name, address, and emergency telephone number of the person with the registration, the hours of operation, and the cabinet’s emergency telephone number;
  10. Comply with the recordkeeping system established by KRS 224.50-874 ; and
  11. Transfer waste tires only to a person who presents a letter from the cabinet approving a registration issued under KRS 224.50-858 or a copy of a solid waste disposal facility permit issued by the cabinet.

History. Enact. Acts 1998, ch. 529, § 6, effective July 15, 1998.

224.50-862. Financial assurance — Calculation — Forfeiture.

  1. A person required to register as an accumulator, transporter, or processor of waste tires shall provide the cabinet with financial assurance to pay for closure and corrective action as required by KRS 224.50-864 and 224.50-866 .
  2. The amount of the financial assurance shall be based on the maximum quantity of waste tires, calculated as passenger tire equivalents, that are accumulated, processed, or transported. Passenger tire equivalents shall be determined by using the most appropriate following calculation:
    1. One (1) whole waste tire with an inside bead diameter less than nineteen (19) inches shall equal one (1) passenger tire equivalent;
    2. One (1) whole waste tire with an inside bead diameter equal to or greater than nineteen (19) inches shall equal five (5) passenger tire equivalents;
    3. Twenty (20) pounds of waste tires shall equal one (1) passenger tire equivalent;
    4. One (1) cubic yard of loose, whole waste tires shall equal ten (10) passenger tire equivalents;
    5. One (1) cubic yard of laced or stacked whole waste tires shall equal fifteen (15) passenger tire equivalents; or
    6. One (1) cubic yard of processed waste tire material shall equal fifty (50) passenger tire equivalents.
  3. The amount of financial assurance to be provided shall be one dollar ($1) per passenger tire equivalent, with a minimum amount of ten thousand dollars ($10,000).
  4. The cabinet may approve an alternative method of determining the number of passenger tire equivalents if the alternative method ensures that adequate funds are available to meet closure and corrective action requirements.
  5. The financial assurance shall be issued in favor of the cabinet and may consist of one (1) or more of the following mechanisms: surety bonds, corporate guarantees, irrevocable letters of credit, insurance, or trust funds. The financial assurance shall be submitted to the cabinet on a form or in a format approved by the cabinet. In approving a financial assurance mechanism, the cabinet shall follow the administrative regulations promulgated by the United States Environmental Protection Agency under Subtitle D of the Solid Waste Disposal Act, 42 U.S.C. secs. 6901 et seq., for solid waste disposal facilities, unless the cabinet promulgates administrative regulations setting different standards.
  6. The cabinet shall forfeit the financial assurance when necessary to pay for closure or corrective action. Any money remaining after completion of closure and corrective action shall be returned to the person who posted the financial assurance.

History. Enact. Acts 1998, ch. 529, § 7, effective July 15, 1998.

224.50-864. Closure — Release of financial assurance.

  1. A person required to register as an accumulator, transporter, or processor of waste tires shall conduct closure by:
    1. Notifying its customers and the cabinet with a schedule of when waste tires will no longer be accepted and closure will begin;
    2. Removing all waste tires in accordance with the schedule;
    3. Conducting any corrective action required by KRS 224.50-866 ; and
    4. Certifying to the cabinet that all waste tires have been removed, that no additional waste tires will be accepted, and that any necessary corrective action has been completed.
  2. The cabinet shall determine that closure has been completed before releasing the financial assurance.

History. Enact. Acts 1998, ch. 529, § 8, effective July 15, 1998.

224.50-866. Corrective action.

A person required to register as an accumulator, transporter, or processor of waste tires shall conduct corrective action as necessary to protect human health, safety, and the environment. For a release or a threatened release of a hazardous substance, a pollutant or contaminant, or a petroleum or petroleum product, corrective action shall be conducted in accordance with KRS 224.1-400 and KRS 224.1-405 . The person registered shall certify to the cabinet that corrective action has been completed in accordance with this section. The cabinet shall determine that corrective action has been completed before releasing the financial assurance.

History. Enact. Acts 1998, ch. 529, § 9, effective July 15, 1998.

Compiler’s Notes.

This section is set out above to reflect a correction to the section reference appearing in section from 224.01-400 to 224.1-400 and 224.01-405 to 224.1-405 due to renumbering by the state reviser effective in 2013.

224.50-868. New tire fee — Definitions — Disposal of replaced tire — Report to cabinet — Retailer requirements.

  1. As used in this section:
    1. “Motor vehicle” means every vehicle intended primarily for use and operation on the public highways that is self-propelled, including a low- speed motor vehicle as defined in KRS 186.010 ;
    2. “Semitrailer” means any vehicle:
      1. Designed:
        1. As temporary living quarters for recreation, camping, or travel; or
        2. For carrying persons or property;
      2. Designed for being drawn by a motor vehicle; and
      3. Constructed that:
        1. Some part of its weight; or
        2. Some part of its load; rests upon or is carried by another vehicle; and
    3. “Trailer” means any vehicle:
      1. Designed:
        1. As temporary living quarters for recreation, camping, or travel; or
        2. For carrying persons or property;
      2. Designed for being drawn by a motor vehicle; and
      3. Constructed that:
        1. No part of its weight; and
        2. No part of its load; rests upon or is carried by another vehicle.
      1. Prior to July 1, 2018, a person purchasing a new motor vehicle tire in Kentucky shall pay to the retailer a one dollar ($1) fee at the time of the purchase of that tire. The fee shall not be subject to the Kentucky sales tax. (2) (a) 1. Prior to July 1, 2018, a person purchasing a new motor vehicle tire in Kentucky shall pay to the retailer a one dollar ($1) fee at the time of the purchase of that tire. The fee shall not be subject to the Kentucky sales tax.
      2. Beginning July 1, 2018, but prior to July 1, 2020, a fee is hereby imposed upon a retailer at the rate of two dollars ($2) for each new motor vehicle tire sold in Kentucky. The fee shall be subject to the Kentucky sales tax.
      3. Beginning July 1, 2020, but prior to July 1, 2024, a fee is hereby imposed upon a retailer at the rate of two dollars ($2) for each new motor vehicle, trailer, or semitrailer tire sold in Kentucky. The fee shall be subject to the Kentucky sales tax.
      4. A retailer may pass the fee imposed by this paragraph on to the purchaser of the new tire.
      1. A new tire is a tire that has never been placed on a motor vehicle, trailer, or semitrailer wheel rim. (b) 1. A new tire is a tire that has never been placed on a motor vehicle, trailer, or semitrailer wheel rim.
      2. A new tire is not a tire placed on a motor vehicle, trailer, or semitrailer prior to its original retail sale or a recapped tire.
  2. When a retailer sells a new motor vehicle tire in Kentucky to replace another tire, the tire that is replaced becomes a waste tire subject to the waste tire program. The retailer shall encourage the purchaser of the new tire to leave the waste tire with the retailer or meet the following requirements:
    1. Dispose of the waste tire in accordance with KRS 224.50-856 (1);
    2. Deliver the waste tire to a person registered in accordance with the waste tire program; or
    3. Reuse the waste tire for its original intended purpose or an agricultural purpose.
    1. A retailer shall report to the Department of Revenue on or before the twentieth day of each month the number of new motor vehicle tires sold during the preceding month and the number of waste tires received from customers that month. (4) (a) A retailer shall report to the Department of Revenue on or before the twentieth day of each month the number of new motor vehicle tires sold during the preceding month and the number of waste tires received from customers that month.
    2. The report shall be filed on forms and contain information as the Department of Revenue may require.
    3. The retailer shall be allowed to retain an amount equal to five percent (5%) of the fees due, provided the amount due is not delinquent at the time of payment.
  3. A retailer shall:
    1. Accept from the purchaser of a new tire, if offered, for each new motor vehicle tire sold, a waste tire of similar size and type; and
    2. Post notice at the place where retail sales are made that state law requires:
      1. The retailer to accept, if offered, a waste tire for each new motor vehicle tire sold and that a person purchasing a new motor vehicle tire to replace another tire shall comply with subsection (3) of this section; and
      2. The two dollar ($2) new tire fee is used by the state to oversee the management of waste tires, including cleaning up abandoned waste tire piles and preventing illegal dumping of waste tires.
  4. A retailer shall comply with the requirements of the recordkeeping system for waste tires established by KRS 224.50-874 .
  5. A retailer shall transfer waste tires only to a person who presents a letter from the cabinet approving the registration issued under KRS 224.50-858 or a copy of a solid waste disposal facility permit issued by the cabinet, unless the retailer is delivering the waste tires to a destination outside Kentucky and the waste tires will remain in the retailer’s possession until they reach that destination.
  6. The cabinet shall, in conjunction with the Waste Tire Working Group, develop the informational fact sheet to be made publicly available on the cabinet’s Web site and available in print upon request. The fact sheet shall identify ways to properly dispose of the waste tire and present information on the problems caused by improper waste tire disposal.

HISTORY: Enact. Acts 1998, ch. 529, § 10, effective July 15, 1998; 2002, ch. 46, § 1, effective July 15, 2002; 2005, ch. 85, § 629, effective June 20, 2005; 2006, ch. 165, § 1, effective July 12, 2006; 2011, ch. 34, § 2, effective June 8, 2011; 2012, ch. 110, § 10, effective April 11, 2012; 2014, ch. 102, § 1, effective July 15, 2014; 2016 ch. 138, § 7, effective April 27, 2016; 2018 ch. 171, § 2, effective April 14, 2018; 2018 ch. 207, § 2, effective April 27, 2018; 2020 ch. 91, § 29, effective April 15, 2020.

224.50-870. Deposit of money in waste tire trust fund.

The Department of Revenue shall transfer monthly fees collected pursuant to KRS 224.50-868 to the State Treasury, for deposit into the waste tire trust fund established by KRS 224.50-880 . All assessment and collection powers conveyed to the Department of Revenue for the assessment and collection of taxes shall apply to the assessment and collection of the fees. The Department of Revenue shall be reimbursed from the waste tire trust fund for its costs incurred in assessing and collecting the fees, with the reimbursement not to exceed fifty thousand dollars ($50,000) per year.

History. Enact. Acts 1998, ch. 529, § 11, effective July 15, 1998; 2005, ch. 85, § 630, effective June 20, 2005.

224.50-872. Report to the General Assembly.

The cabinet shall report to the General Assembly no later than January 15 each year on the effectiveness of the waste tire program in developing markets for waste tires, the amount of revenue generated and the effectiveness of the fee established in KRS 224.50-868 in funding the cabinet’s implementation of the waste tire program, to include any waste tire amnesty program established by the cabinet as provided for in KRS 224.50-880 (1)(b), whether the fee should be extended, comparative data on the number of waste tires generated each year, the number disposed of, the number of orphan tire piles, and the cost of tire disposal by counties in the Commonwealth.

History. Enact. Acts 1998, ch. 529, § 12, effective July 15, 1998; 2002, ch. 46, § 2, effective July 15, 2002; 2006, ch. 165, § 2, effective July 12, 2006; 2011, ch. 34, § 3, effective June 8, 2011.

224.50-874. Recordkeeping system — Receipt.

  1. A recordkeeping system shall be implemented for a waste tire from the time it becomes a waste tire to the time it is disposed, recycled, or used as tire-derived fuel.
  2. A retailer, an automotive recycling dealer, and a person required to register as an accumulator, transporter, or processor who transfers waste tires to another person shall obtain a receipt for the waste tires. The final processor or a transporter who arranges for disposal or recycling out-of-state shall return a copy of the receipt for disposal or recycling to the retailer within thirty (30) days of receiving the waste tires. If the retailer does not receive the receipt from the final processor or transporter showing proof of who took final custody of the waste tires and disposed of the tires in accordance with KRS 224.50-856 (1) and (2), the retailer shall notify the Division of Waste Management.
  3. A person filling out a receipt shall provide the following information:
    1. That person’s name, address, company and signature;
    2. The number of waste tires or their passenger tire equivalents accepted;
    3. The date the waste tires were transferred; and
    4. The name and address of the person transferring the waste tires.
  4. A person who fills out a receipt shall keep a copy for three (3) years.

History. Enact. Acts 1998, ch. 529, § 13, effective July 15, 1998; 2011, ch. 34, § 4, effective June 8, 2011.

224.50-876. Contracts with persons relating to various aspects of disposal — Memorandum of agreement — Agreements with local governments.

  1. The cabinet may enter into an agreement with a person to collect, transport, process, recycle, make tire-derived fuel, dispose of waste tires, or develop markets for waste tires. A person awarded a contract shall comply with the requirements of the waste tire program.
  2. The cabinet may enter into a memorandum of agreement with a federal, state, or local agency to aid in implementing the waste tire program. The cabinet may reimburse the federal, state, or local agency for their expenses incurred to aid the implementation of the waste tire program if money is available in the waste tire trust fund established by KRS 224.50-880 .
  3. The cabinet may enter into an agreement with a local government for the removal of waste tires, including waste tires collected by the local government through a local community-sponsored program. If income is derived from the disposal of the waste tires collected through the local community-sponsored program, the income may be used to reimburse the local government for the cost of sponsoring the program.

History. Enact. Acts 1998, ch. 529, § 14, effective July 15, 1998.

224.50-878. Grant for project that manages tires — Application — Prioritization — Revocation.

  1. If money in the waste tire trust fund established by KRS 224.50-880 is not otherwise obligated, the cabinet may award a grant to a person for a project that will manage waste tires in accordance with the purposes of the waste tire program as appropriate to protect human health, safety, and the environment, or to develop markets for waste tires.
  2. An applicant for a grant shall meet the following criteria:
    1. Have the legal authority to construct and operate the project;
    2. Have the ability to construct and operate the project in compliance with this chapter and the grant conditions; and
    3. The applicant and the persons who will be managing the project shall not have received a final judgment or conviction of a state or federal environmental statute or regulation in the five (5) years before submitting the application and shall not have any outstanding violations of state or federal environmental statutes or regulations.
  3. The cabinet shall prioritize the applications based on the following factors:
    1. The project’s consistency with the purposes of the waste tire program;
    2. The project’s costs and forecasted benefits;
    3. The applicant’s credit history; and
    4. The applicant’s and key personnel’s environmental compliance record.
  4. A person awarded a grant shall:
    1. Construct and operate the project in compliance with this chapter and the grant conditions;
    2. Remain responsible for complying with this chapter and the grant conditions, even if the project is managed by someone else;
    3. Retain ownership of all real and personal property purchased with grant funds unless the cabinet approves their transfer;
    4. Submit to the cabinet monthly an itemized list of expenditures, with copies of invoices or similar documentation;
    5. Submit to the cabinet periodic progress reports; and
    6. Not change the project without the cabinet’s approval.
  5. The cabinet may revoke a grant and seek recovery of any grant funds dispersed if the person awarded the grant does not comply with this chapter or the grant conditions.

History. Enact. Acts 1998, ch. 529, § 15, effective July 15, 1998.

224.50-880. Waste tire trust fund.

  1. A waste tire trust fund is established in the state treasury. The fund shall be used by the cabinet for the following purposes:
    1. Properly managing waste tires;
    2. Paying the costs associated with any waste tire amnesty program established by the cabinet that permits waste tires to be turned in without incurring fees, charges, or penalties;
    3. Paying the Department of Revenue’s costs of assessing and collecting the fee established by KRS 224.50-868 ;
    4. Entering into the agreements described in KRS 224.50-876 ; and
    5. Awarding the grants described in KRS 224.50-878 . The cabinet shall utilize no more than twenty-five percent (25%) of the funds for the administrative costs related to implementing the waste tire program. All remaining funds shall be utilized, in accordance with KRS 224.50-850 to 224.50-880 , for waste tire amnesty programs, crumb rubber grants, tire-derived fuel programs, and other projects that will manage waste tires as appropriate to protect human health, safety, and the environment, or to develop markets for waste tires.
  2. All interest earned on money in the fund shall be credited to the fund.
  3. Money unexpended at the end of a fiscal year shall not lapse to the general fund.
  4. Any money remaining in the waste tire trust fund established by KRS 224.50-820 shall be transferred to the fund established by this section.

History. Enact. Acts 1998, ch. 529, § 16, effective July 15, 1998; 2002, ch. 46, § 3, effective July 15, 2002; 2005, ch. 85, § 631, effective June 20, 2005; 2011, ch. 34, § 5, effective June 8, 2011.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. V, C, 2 at 940.

SUBCHAPTER 60. Underground Storage Facilities

224.60-100. Underground storage tanks and regulated substances defined.

As used in KRS 224.60-105 :

  1. “Underground storage tank” means any one (1) or combination of tanks (including underground pipes connected thereto) used to contain an accumulation of regulated substances, and the volume of which (including the volume of the underground pipes connected thereto) is ten percent (10%) or more beneath the surface of the ground. Such term does not include any:
    1. Farm or residential tank of one thousand one hundred (1,100) gallons or less capacity used for storing motor fuel for noncommercial purposes;
    2. Tank used for storing heating oil for consumptive use on the premises where stored;
    3. Septic tank;
    4. Pipeline facility (including gathering lines) regulated under the Natural Gas Pipeline Safety Act of 1968, (49 U.S.C. App. secs. 1671 et seq.), the Hazardous Liquid Pipeline Safety Act of 1979 (49 U.S.C. App. secs. 2001 et seq.), or which is an intrastate pipeline facility regulated under state laws comparable to the provisions of the Natural Gas Pipeline Safety Act of 1968 or the Hazardous Liquid Pipeline Safety Act of 1979;
    5. Surface impoundment pit, pond, or lagoon;
    6. Storm water or waste water collection system;
    7. Flow-through process tank;
    8. Liquid trap or associated gathering lines directly related to oil or gas production and gathering operations; or
    9. Storage tank situated in an underground area (such as a basement, cellar, mineworking, drift, shaft, or tunnel) if the storage tank is situated upon or above the surface of the floor.
  2. “Regulated substance” means any substance defined in Section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, but not including any substance regulated as a hazardous waste under Subtitle C, and petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute).

History. Enact. Act 1986, ch. 237, § 6, effective July 15, 1986.

Compiler’s Notes.

This section was formerly compiled as KRS 224.810 .

Section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 referenced in this section is compiled at 42 USCS § 9601(14).

224.60-105. Registration of underground storage tanks — Program to regulate tanks.

  1. Owners of any underground storage tank, currently existing, or taken out of operation after January 1, 1974, shall notify the cabinet of the existence of such tanks and a description of the tank and its use in accordance with regulations promulgated by the cabinet.
  2. The cabinet shall regulate underground storage tanks by requiring minimum construction and performance standards, leak detection, record keeping, reporting releases, corrective actions, closure, financial responsibility, and any other requirement deemed necessary by the cabinet to protect the public health and environment. In promulgating regulations to carry out this section the cabinet may distinguish between types, classes, and ages of underground storage tanks.
  3. It is the intent of the General Assembly that the cabinet shall establish a program to regulate underground storage tanks which implements federal regulatory requirements for underground storage tanks. The cabinet shall develop and implement a program and promulgate administrative regulations for underground storage tanks which shall be submitted for approval to the United States Environmental Protection Agency pursuant to federal regulations.
  4. KRS 224.60-105 to 224.60-160 and administrative regulations promulgated under authority of KRS 224.60-105 to 224.60-160 shall supersede and preempt all local laws, ordinances, and regulations pertaining to petroleum underground storage tanks, except:
    1. Any applicable state fire marshal regulations or local building permit procedures for petroleum storage tank installations;
    2. Any local law, ordinance, or regulation promulgated before July 15, 1990; or
    3. Any local restrictions or conditions imposed pursuant to KRS Chapter 100.

History. Enact. Act 1986, ch. 237, § 7, effective July 15, 1986; 1990, ch. 370, § 3, effective April 9, 1990; 2010, ch. 24, § 376, effective July 15, 2010.

Compiler’s Notes.

This section was formerly compiled as KRS 224.814 .

Research References and Practice Aids

Northern Kentucky Law Review.

Note, Leaking Underground Storage Tanks: The Scope of Regulatory Burdens and Potential Remedies Under RCRA and CERCLA, 21 N. Ky. L. Rev. 205 (1994).

Perkins, Petroleum Storage Regulation in Kentucky, 22 N. Ky. L. Rev. 59 (1995).

224.60-110. Legislative findings and intent.

The General Assembly of the Commonwealth of Kentucky finds and declares that:

  1. Significant quantities of petroleum and petroleum products are being stored in petroleum storage tanks in the state to meet the needs of its citizens and to foster economic growth and development and the overall quality of life in the state;
  2. Spills, leaks, discharges, and other releases into the environment from petroleum storage tanks, however, have occurred, are occurring, or will occur, and such releases may pose a threat to public health and safety and the environment;
  3. Adequate financial resources must be readily available to provide a means for investigation and cleanup of contamination without delay;
  4. In recent years, petroleum storage tank owners or operators have been unable to obtain affordable pollution liability insurance coverage to pay for corrective action measures;
  5. It is in the best interests of the state to protect public health and safety and the environment by creating a fund for corrective action measures for releases into the environment from petroleum storage tanks;
  6. Commercial insurers may increase the availability and affordability of pollution liability insurance coverage for petroleum storage tanks if a comprehensive and efficient financial responsibility program for tanks is established;
  7. An efficient program of financial responsibility should include corrective action requirements that encourage petroleum storage tank owners or operators to take corrective action measures in the first instance;
  8. An efficient program of financial responsibility for petroleum storage tanks should minimize disputes over the causation of and responsibility for releases into the environment from petroleum storage tanks;
  9. An efficient program of financial responsibility should protect petroleum storage tank owners and operators from fraudulent claims against the fund to insure the fund’s financial viability and should authorize the vigorous pursuit of fraudulent claims;
  10. It is necessary and essential that the state use all practical means to control or eliminate pollution hazards posed by leaking petroleum storage tanks; and
  11. It is the intent of the General Assembly that a state fund be created to assist petroleum storage tank owners or operators in complying with the federal financial responsibility requirements promulgated under federal regulations and to assist petroleum storage tank owners or operators in cleaning up contamination caused by a release.

History. Enact. Acts 1990, ch. 370, § 1, effective April 9, 1990; 1998, ch. 498, § 1, effective July 15, 1998.

Compiler’s Notes.

The section was formerly compiled as KRS 224.815 .

224.60-115. Definitions for KRS 224.60-120 to 224.60-150.

As used in KRS 224.60-120 to 224.60-150 , unless the context otherwise requires:

  1. “Bodily injury and property damage” means only those actual economic losses to an individual or the individual’s property resulting from bodily injuries and damages to property caused by a release into the environment from a petroleum storage tank. In this context, property damage includes damage to natural resources;
  2. “Cabinet” means the Energy and Environment Cabinet;
  3. “Claim” means any demand in writing for a certain sum;
  4. “Corrective action” means those actions necessary to protect human health and the environment in the event of a release from a petroleum storage tank. Corrective action includes initial responses taken pursuant to KRS 224.60-135 , remedial actions to clean up contaminated groundwater, surface waters, or soil, actions to address residual effects after initial corrective action is taken, and actions taken to restore or replace potable water supplies. Corrective action also includes actions necessary to monitor, assess, and evaluate a release, as well as actions necessary to monitor, assess, and evaluate the effectiveness of remedial action after a release has occurred;
  5. “Dealer” has the same meaning as in KRS 138.210 ;
  6. “Division” means the Division of Waste Management;
  7. “Facility” means, with respect to any owner or operator, all petroleum storage tanks which are owned or operated by an owner or operator and are located on a single parcel of property or on any contiguous or adjacent property;
  8. “Federal regulations” means regulations for underground petroleum storage tanks promulgated by the United States Environmental Protection Agency pursuant to Subtitle I of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act;
  9. “Free product” means a regulated substance that is present as a non-aqueous phase liquid;
  10. “Fund” means the petroleum storage tank environmental assurance fund and its subaccounts, the financial responsibility account and the petroleum storage tank account established pursuant to KRS 224.60-140 ;
  11. “Gasoline” has the same meaning as in KRS 138.210 ;
  12. “Motor fuel” means petroleum or a petroleum-based substance that is motor gasoline, aviation gasoline, No. 1 or No. 2 diesel fuel, or any grade of gasohol, that is typically used in the operation of a motor engine, jet fuel, and any petroleum or petroleum-based substance typically used in the operation of a motor vehicle, including used motor vehicle lubricants and oils;
  13. “Occurrence” means a release, or releases, of an accidental nature, requiring corrective action, from a petroleum storage tank or tanks located at the same facility, due to continuous or repeated exposure to conditions. An additional release or releases at the same facility in which the area requiring remedial action is separate from a previous remediation area or areas shall be considered a separate occurrence;
  14. “Person” means an individual, trust, firm, joint stock company, federal agency, corporation, the state, a municipality, commission, or political subdivision of the state. The term includes a consortium, a joint venture, the United States government, or a commercial entity;
  15. “Petroleum” and “petroleum products” means crude oil, or any fraction thereof, which is liquid at standard conditions of temperature and pressure, which means at sixty (60) degrees Fahrenheit and 14.7 pounds per square inch absolute. The term includes motor gasoline, gasohol, other alcohol-blended fuels, diesel fuel, heating oil, special fuels, lubricants, and used oil;
  16. “Petroleum storage tank” means an underground storage tank, as defined by KRS 224.60-100 , which contains petroleum or petroleum products but, for the purpose of participation or eligibility for the fund, shall only include tanks containing motor fuels and shall not include petroleum storage tanks used exclusively for storage of fuel used in the operation of a commercial ship or vessel or tanks used exclusively for storage of fuel used for the purposes of powering locomotives or tanks owned by a federal agency or the United States government;
  17. “Petroleum storage tank operator” means any person in control of, or having responsibility for, the daily operation of a petroleum storage tank;
  18. “Petroleum storage tank owner” means the person who owns a petroleum storage tank, except that petroleum storage tank owner does not include any person who, without participation in the management of a petroleum storage tank, holds indicia of ownership primarily to protect a security interest in the tank;
  19. “Received” has the same meaning as in KRS 138.210 ;
  20. “Release” means any spilling, leaking, emitting, discharging, escaping, leaching, or disposing from a petroleum storage tank into groundwater, surface water, or surface or subsurface soils. The term shall not include releases that are permitted or authorized by the state or federal law;
  21. “Special fuels” has the same meaning as in KRS 138.210 ; and
  22. “Third party” means a person other than the owner or operator of a facility, or the agents or employees of the owner or operator, who sustains bodily injury or property damage as a result of a release from that facility.

History. Enact. Acts 1990, ch. 370, § 2, effective April 9, 1990; 1992, ch. 450, § 1, effective April 13, 1992; 1994, ch. 419, § 1, effective April 11, 1994; 1996, ch. 295, § 1, effective July 15, 1996; 1998, ch. 284, § 1, effective July 15, 1998; 1998, ch. 498, § 2, effective July 15, 1998; 2002, ch. 361, § 1, effective July 15, 2002; 2005, ch. 123, § 24, effective June 20, 2005; 2010, ch. 24, § 377, effective July 15, 2010; 2015 ch. 67, § 20, effective March 25, 2015.

Compiler’s Notes.

This section was formerly compiled as KRS 224.816 .

Subtitle I of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, referred to in subdivision (8) of this section, is compiled as 42 USCS § 6901 et seq.

Legislative Research Commission Note.

(2/9/93). When this statute was created in 1990, the introductory phrase “As used in KRS 224.60-120 to 224.60-150 , unless the context otherwise requires:” appeared before subsection (1) of the statute. See 1990 Ky. Acts ch. 370, sec. 2. The 1992 amendment to this statute, however, did not include this language. See 1992 Ky. Acts ch. 450, sec. 1. This erroneous omission has been corrected by restoring the language in question as required by KRS 446.280 .

Research References and Practice Aids

Northern Kentucky Law Review.

Sanders, Kentucky Adopts Risk Assessment for Closing Hazardous Waste Units, 22 N. Ky. L. Rev. 37 (1995).

224.60-120. Financial responsibility of petroleum storage tank owner or operator — Administrative regulations.

  1. Each petroleum storage tank owner or operator shall establish and maintain evidence of financial responsibility, as provided for in this section, for taking corrective action and for compensating third parties for bodily injury and property damage.
    1. For petroleum storage tank owners or operators of eleven (11) or more tanks, the level of financial responsibility to be established and maintained shall be twelve thousand five hundred dollars ($12,500) per occurrence for taking corrective action and twelve thousand five hundred dollars ($12,500) per occurrence for compensating third parties for bodily injury and property damage.
    2. For petroleum storage tank owners or operators of six (6) to ten (10) tanks who have not been issued a closure letter from the cabinet, the level of financial responsibility to be established and maintained shall be two thousand five hundred dollars ($2,500) per occurrence for taking corrective action and two thousand five hundred dollars ($2,500) per occurrence for compensating third parties for bodily injury and property damage.
    3. For petroleum storage tank owners or operators of five (5) or less tanks who have not been issued a closure letter from the cabinet, the level of financial responsibility to be established and maintained shall be five hundred dollars ($500) per occurrence for taking corrective action and for compensating third parties for bodily injury and property damage.
  2. Evidence of financial responsibility may be established by any combination of the following:
    1. Commercial or private insurance, including risk retention groups;
    2. Qualification as a self-insurer;
    3. A guarantee, surety bond, or letter of credit; or
    4. Any other reasonable and economically practicable means in a form acceptable to the division.
  3. To qualify as a self-insurer, the petroleum storage tank owner or operator shall demonstrate a net worth in excess of the amounts specified in subsection (1) of this section. “Net worth” shall mean the monetary value of assets that remain after deducting liabilities. “Assets” shall mean all existing and all probable future economic benefits obtained or controlled by a particular entity as a result of past transactions.
  4. The total liability of any guarantor under KRS 224.60-105 to 224.60-160 is limited to the aggregate amount which the guarantor has provided as evidence of financial responsibility to the petroleum storage tank owner or operator pursuant to this section. This subsection does not limit any other state or federal statutory, contractual, or common law liability of a guarantor to a petroleum storage tank owner or operator, including, but not limited to, the liability of the guarantor for bad faith either in negotiating or in failing to negotiate the settlement of any claim. “Guarantor” shall mean any person, other than the petroleum storage tank owner or operator, who provides evidence of financial responsibility for a petroleum storage tank owner or operator pursuant to this section.
  5. It is the intent of the General Assembly that the fund established pursuant to KRS 224.60-140 , combined with the financial responsibility required by this section, may be used by petroleum storage tank owners or operators to demonstrate their compliance with any financial responsibility requirements promulgated under federal regulations.
  6. The Department for Environmental Protection, Division of Waste Management, shall promulgate administrative regulations to implement this section. In promulgating administrative regulations, the division shall not restrain or limit the use of any of the means of establishing financial responsibility specified in this section. The administrative regulations may allow a twenty-five percent (25%) reduction in the level of financial responsibility set in subsection (1) of this section for the timely completion of corrective action.

History. Enact. Acts 1990, ch. 370, § 4, effective April 9, 1990; 1992, ch. 450, § 2, effective April 13, 1992; 1994, ch. 421, § 4, effective July 15, 1994; 1998, ch. 284, § 4, effective July 15, 1998; 1998, ch. 498, § 3, effective July 15, 1998; 2005, ch. 123, § 25, effective June 20, 2005.

Compiler’s Notes.

This section was formerly compiled as KRS 224.817 .

Research References and Practice Aids

Northern Kentucky Law Review.

Perkins, Petroleum Storage Regulation in Kentucky, 22 N. Ky. L. Rev. 59 (1995).

224.60-125. Petroleum Storage Tank Environmental Assurance Fund Commission. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 370, § 5, effective April 9, 1990; 1994, ch. 421, § 1, effective July 15, 1994) was repealed by Acts 1998, ch. 284, § 8, effective July 15, 1998 and Acts 1998, ch. 498, § 10, effective July 15, 1998.

Legislative Research Commission Note.

(7/15/98). This section was repealed by 1998 Ky. Acts chs. 284 and 498.

224.60-130. Petroleum storage tank environmental assurance fund — Duties of Division of Waste Management — Deadline for reimbursement of corrective action projects.

  1. The Energy and Environment Cabinet, Department for Environmental Protection, Division of Waste Management, shall:
    1. Establish by administrative regulation the policy, guidelines, and procedures to administer the financial responsibility and petroleum storage tank accounts of the petroleum storage tank environmental assurance fund. In adopting administrative regulations to carry out this section, the division may distinguish between types, classes, and ages of petroleum storage tanks. The division may establish a range of amounts to be paid from the fund, or may base payments on methods such as pay for performance, task order, or firm fixed pricing, which are designed to provide incentives for contractors to more tightly control corrective action costs, and shall establish criteria to be met by persons who contract to perform corrective action to be eligible for reimbursement from the fund. The criteria may include the certification of individuals, partnerships, and companies. Criteria shall be established to certify laboratories that contract to perform analytical testing related to the underground storage tank program. Owners and operators shall have all required analytical testing performed by a certified laboratory to be eligible for fund participation. Persons who contract with petroleum storage tank owners or operators shall not be paid more than the amount authorized by the division for reimbursement from the fund for the performance of corrective action. At a minimum, the division shall promulgate administrative regulations that will insure an unobligated balance in the fund adequate to meet financial assurance requirements and corrective action requirements of KRS 224.60-135 (2) and (4). If the unobligated balance in the fund is not adequate to meet the requirements of this paragraph, the division shall obligate funds necessary to meet these requirements;
    2. Establish by administrative regulation the criteria to be met to be eligible to participate in the financial responsibility and petroleum storage tank accounts and to receive reimbursement from these accounts. The division may establish eligibility criteria for the petroleum storage tank account based upon the financial ability of the petroleum storage tank owner or operator. Owners or operators seeking coverage under the petroleum storage tank account shall file for eligibility and for financial assistance with the division. To ensure cost effectiveness, the division shall promulgate administrative regulations specifying the circumstances under which prior approval of corrective action costs shall be required for those costs to be eligible for reimbursement from the fund. In promulgating administrative regulations to carry out this section, the division may distinguish between types, classes, and ages of petroleum storage tanks and the degree of compliance of the facility with any administrative regulations of the cabinet promulgated pursuant to KRS 224.60-105 or applicable federal regulations;
    3. Establish a financial responsibility account within the fund which may be used by petroleum storage tank owners and operators to demonstrate financial responsibility as required by administrative regulations of the cabinet or the federal regulations applicable to petroleum storage tanks, consistent with the intent of the General Assembly as set forth in KRS 224.60-120 (5). The account shall receive four-tenths of one cent ($0.004) from the one and four-tenths cent ($0.014) paid on each gallon of gasoline and special fuels received in this state pursuant to KRS 224.60-145 . To be eligible to use this account to demonstrate compliance with financial responsibility requirements of the cabinet or federal regulations, or to receive reimbursement from this account for taking corrective action and for compensating third parties for bodily injury and property damage, the petroleum storage tank owner or operator shall meet the eligibility requirements established by administrative regulation promulgated by the division;
    4. Establish a small operator assistance account within the fund which may be used by the division to make or participate in the making of loans, to purchase or participate in the purchase of the loans, which purchase may be from eligible lenders, or to insure loans made by eligible lenders;
    5. Establish a petroleum storage tank account within the fund to be used to pay the costs of corrective action due to a release from a petroleum storage tank not eligible for reimbursement from the financial responsibility account. Reimbursements of corrective action projects performed under the petroleum storage tank account shall be carried out on or before July 15, 2028. Any corrective action costs incurred after this date shall not be eligible for reimbursement under the petroleum storage tank account. The account shall receive one cent ($0.01) from the one and four-tenths cent ($0.014) paid on each gallon of gasoline and special fuels received in this state pursuant to KRS 224.60-145 . This account shall not be used to compensate third parties for bodily injury and property damage. Within three (3) months after July 15, 2004, the division shall develop a plan to address the payment of claims and completion of corrective action at facilities eligible for reimbursement from this account. The division shall establish a ranking system to be used for the distribution of amounts from this account for the purpose of corrective action. In promulgating administrative regulations to carry out this section, the division shall consider the financial ability of the petroleum storage tank owner or operator to perform corrective action and the extent of damage caused by a release into the environment from a petroleum storage tank;
    6. Hear complaints brought before the division regarding the payment of claims from the fund in accordance with KRS 224.10-410 to 224.10-470 ;
    7. Establish and maintain necessary offices within this state, appoint employees and agents as necessary, and prescribe their duties and compensation;
    8. Employ, in accordance with the procedures found in KRS 45A.690 to 45A.725 for awarding personal service contracts, a qualified actuary to perform actuarial studies, as directed by the division, for determining an appropriate reserve in the financial responsibility account and the petroleum storage tank account sufficient to satisfy the obligations in each account for all eligible facilities and to satisfy future liabilities and expenses necessary to operate each account. The division shall, by administrative regulation, set the entry level for participation in the fund;
    9. Authorize expenditures from the fund to carry out the purpose of KRS 224.60-105 to 224.60-160 , including reasonable costs of administering the fund, the procurement of legal services, and the procurement of analytical testing services when necessary to confirm the accuracy of analytical testing results obtained by a petroleum storage tank owner or operator. The expenditures shall be paid from the appropriate account;
    10. Establish a small operators’ tank removal account within the fund to reimburse the reasonable cost of tank system removal for small owners and operators. The account shall not be used when an owner or operator is removing the tank with the intention of replacing or upgrading the tank. In promulgating administrative regulations to carry out this paragraph, the division may distinguish among owners and operators based on income and types and classes of tanks. The division shall not place a limit on the number of tanks that an owner or operator has in order to be eligible to participate in the program and receive reimbursement under this paragraph;
    11. Establish by administrative regulation the policy, guidelines, and procedures to perform financial audits of any petroleum storage tank owner or operator receiving reimbursement from the fund or any entity contracting or subcontracting to provide corrective action services for facilities eligible for fund reimbursement. Financial audits shall be limited to those files, records, computer records, receipts, and other documents related to corrective action performed at a facility where the costs of corrective action have been reimbursed by the fund. Files, records, computer records, receipts, and other documents related to corrective action reimbursed by the fund shall be subject to a financial audit for a period of three (3) years after the date of final reimbursement from the fund. Results of the audits shall be protected from disclosure as allowed by KRS 61.878(1)(c). Financial auditing services may be contracted for or personnel may be employed as needed to implement the requirements of this paragraph;
    12. Be authorized to enter and inspect any facility intending to seek reimbursement for the cost of corrective action to determine the reasonableness and necessity of the cost of corrective action. The division may collect soil or water samples or require storage tank owners or operators to split samples with the division for analytical testing. Refusal to allow entry and inspection of a facility or refusal to allow the division to collect or split samples shall make the facility ineligible for fund participation;
    13. Have inspectors on site at all tank system removals. Failure to comply with this provision shall make the facility ineligible for fund participation. A petroleum storage tank owner or operator may request through certified mail that the division schedule an inspector to be present at an upcoming tank removal. If the request is made at least two (2) weeks before the time for the removal and an inspector fails to be present at the time scheduled, the tank removal may proceed without making the facility ineligible for fund participation unless the owner is notified by the division no later than ten (10) days prior to the proposed date that an inspector is not available on the proposed date, in which event a representative of the division shall contact the operator and schedule a new date. If no inspector is present at the rescheduled date, the removal may then proceed without penalty; and
    14. Establish that the deadline for submission of final reimbursement requests under the petroleum storage tank account is two (2) years after receipt of a no further action letter.
  2. The division may advise the cabinet on the promulgation of administrative regulations concerning petroleum storage tanks.
  3. The division may sue and be sued in its own name.
  4. The division may transfer funds from the petroleum storage tank account to the small operator tank removal account as needed to satisfy the obligations, future liabilities, and expenses necessary to operate that account. The division may transfer funds to the financial responsibility account as needed to maintain within that account sufficient funds to demonstrate financial responsibility and to ensure payment of claims as provided in subsection (1)(c) of this section.

History. Enact. Acts 1990, ch. 370, § 6, effective April 9, 1990; 1992, ch. 450, § 3, effective April 13, 1992; 1996, ch. 295, § 2, effective July 15, 1996; 1996, ch. 318, § 137, effective July 15, 1996; 1998, ch. 284, § 3, effective July 15, 1998; 1998, ch. 498, § 4, effective July 15, 1998; 2002, ch. 361, § 2, effective July 15, 2002; 2004, ch. 26, § 1, effective July 13, 2004; 2005, ch. 123, § 26, effective June 20, 2005; 2007, ch. 78, § 2, effective March 23, 2007; 2010, ch. 24, § 378, effective July 15, 2010; 2010, ch. 47, § 2, effective July 15, 2010; 2010, ch. 59, § 1, effective July 15, 2010; 2013, ch. 47, § 2, effective June 25, 2013; 2016 ch. 9, § 2, effective July 15, 2016; 2020 ch. 91, § 31, effective April 15, 2020.

Compiler’s Notes.

This section was formerly compiled as KRS 224.819 .

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. V, C, 3 at 940.

224.60-135. Corrective action for a release into the environment from a petroleum storage tank.

  1. As required under administrative regulations of the cabinet, a petroleum storage tank owner or operator shall commence, or contract for, corrective action for a release into the environment from a petroleum storage tank. A property owner who is not also the petroleum storage tank owner or operator shall have no obligation to perform corrective action for a release into the environment from a petroleum storage tank.
  2. If a petroleum storage tank owner or operator fails or refuses to take corrective action, the cabinet may draw funds from the unobligated balance of the fund to initiate, or contract for, corrective action pursuant to KRS 224.60-105 to 224.60-160 in accordance with subsection (3) of the section.
  3. Except as provided in subsection (4) of this section, before initiating, or contracting for, corrective action, the cabinet shall make a reasonable effort to notify and provide to the petroleum storage tank owner or operator an opportunity to comply with the requirements of this section.
  4. The cabinet may draw funds from the unobligated balance of the fund to undertake, or contract for, corrective action necessary to prevent or remedy an emergency situation threatening public health, safety, or the environment, resulting from a release into the environment from a petroleum storage tank, unless a petroleum storage tank owner or operator is taking appropriate action to abate emergency situations in accordance with administrative regulations of the cabinet.
  5. Within six (6) months from April 9, 1990, the state fire marshal shall promulgate administrative regulations which require any person or organization who installs, repairs, closes, or removes an underground storage tank for a petroleum storage tank owner or operator to demonstrate financial capability, including the maintenance of pollution liability insurance, and technical competency and proficiency.

History. Enact. Acts 1990, ch. 370, § 7, effective April 9, 1990; repealed, reenact., and amend. Acts 1994, ch. 279, § 4, effective July 15, 1994; 2012, ch. 105, § 2, effective July 12, 2012.

Compiler’s Notes.

This section was formerly compiled as KRS 224.820 .

The history of this section prior to the 1994 repeal and reenactment was “Enact. Acts 1990, ch. 370, § 7, effective April 9, 1990.”

Acts 1994, ch. 279, § 7 provides, “In enacting Sections 1 to 4 of this Act, the General Assembly ratifies and confirms any prior actions on statutes contained in those sections by the Reviser of Statutes acting pursuant to the authority established by KRS 7.140 and 7.136 . Nothing in Sections 1 to 6 of this Act shall be construed under KRS 7.123(4) as appearing to effect any substantive law in the statute law of Kentucky, and the repeal and reenactments contained in Sections 1 to 5 of this Act shall not operate under KRS 446.260 to defeat any amendments in other Acts of this session to the statutes contained in those sections.”

224.60-137. Standards for corrective action for release from petroleum storage tank — Inventory of facilities eligible for reimbursement.

  1. It is the intent of the General Assembly, when funds are available, that the University of Kentucky update the study completed in July 1995, and recommend amendments to standards for levels of petroleum contamination, including lead and other additives, requiring corrective action to adequately protect human health, safety, and the environment established in administrative regulations promulgated by the cabinet, based on new information or changes in federal law.
  2. The division shall contract with the University of Kentucky when funds are available.
  3. The cabinet shall, by administrative regulation, adopt standards for corrective action for a release into the environment from a petroleum storage tank. The administrative regulations shall adequately protect human health, safety, and the environment, and may consider the study and any revisions or amendments to it performed for the division, except as necessary to comply with federal law.
  4. Within ninety (90) days of July 15, 2002, the cabinet shall develop an inventory of facilities eligible for reimbursement from the financial responsibility account and the petroleum storage tank account and information on the current status of each facility within the corrective action process. The cabinet shall update the inventory and the status of the facilities and submit the information quarterly to the Legislative Research Commission.

History. Enact. Acts 1992, ch. 450, § 8, effective April 13, 1992; 1994, ch. 419, § 2, effective April 11, 1994; 1998, ch. 284, § 5, effective July 15, 1998; 1998, ch. 498, § 7, effective July 15, 1998; 2002, ch. 361, § 3, effective July 15, 2002.

Research References and Practice Aids

Northern Kentucky Law Review.

Sanders, Kentucky Adopts Risk Assessment for Closing Hazardous Waste Units, 22 N. Ky. L. Rev. 37 (1995).

224.60-138. Reduction of contamination levels by corrective action or closure — Request for final determination — Hearing — Effect.

  1. If corrective action for a release from or closure of a petroleum storage tank reduces levels of contamination to less than the standards established pursuant to the administrative regulations adopted under KRS 224.60-137 , then the cabinet shall approve the corrective action or closure and issue a notice to the owner or operator that no further action is required to address the petroleum contamination. This notice shall indicate that the property is not subject to any additional actions under KRS 224.1-400 or 224.1-405 .
  2. A person who submits a corrective action proposal to the cabinet may request in writing a final determination on the proposal no sooner than thirty (30) days after its submission. When a final determination on the proposal is requested, the cabinet shall make its final determination within sixty (60) working days from the date the request is received by the cabinet. After a final determination has been made, the person requesting the final determination may request a hearing pursuant to the provisions of KRS 224.10-420 . Nothing in this subsection shall relieve any person of any obligations imposed by law during an environmental emergency, nor shall it require the cabinet to approve a proposal which would violate this chapter or the administrative regulations promulgated pursuant thereto.

History. Enact. Acts 1994, ch. 419, § 3, effective April 11, 1994; 2012, ch. 105, § 3, effective July 12, 2012.

Compiler’s Notes.

This section is set out above to reflect a correction to the section reference appearing in subsection (1) from “224.01-400 or 224.01-405 ” to “224.1-400 or 224.1-405 ” due to renumbering by the state reviser effective in 2013.

Research References and Practice Aids

Northern Kentucky Law Review.

Sanders, Kentucky Adopts Risk Assessment for Closing Hazardous Waste Units, 22 N. Ky. L. Rev. 37 (1995).

224.60-140. Petroleum storage tank environmental assurance fund — Claims for reimbursement.

  1. There is hereby created the petroleum storage tank environmental assurance fund. The fund shall consist of a financial responsibility account and a petroleum storage tank account. Each account shall be maintained as a separate and distinct interest-bearing account. Interest credited to an account shall be retained in that account. All of the following amounts shall be deposited in the fund:
    1. Four-tenths of one cent ($0.004) from the one and four-tenths cent ($0.014) paid on each gallon of gasoline and special fuels received in this state pursuant to KRS 224.60-145 to the financial responsibility account;
    2. One cent ($0.01) from the one and four-tenths cent ($0.014) paid on each gallon of gasoline and special fuels received in this state pursuant to KRS 224.60-145 to the petroleum storage tank account;
    3. Money appropriated by the General Assembly for deposit in each account;
    4. Any money recovered by the fund pursuant to this section shall be deposited in the appropriate account; and
    5. Any money collected in the form of penalties levied pursuant to KRS 224.60-155 shall be deposited to the appropriate account.
  2. Money in the fund, financial responsibility account, and the petroleum storage tank account shall be used by the division for the following purposes:
    1. To reimburse petroleum storage tank owners or operators for the costs, expenses, and other obligations incurred for corrective action required by the cabinet to be undertaken as the result of a release into the environment from a petroleum storage tank. Reimbursement shall be limited to only those costs, expenses, and other obligations incurred to comply with corrective action requirements established in law or administrative regulation by the cabinet. Additional costs related to compliance with a local program operating under KRS 224.60-105 (4) shall be neither reimbursable by the fund nor imposed on the owner or operator. Reimbursement shall not include the costs related to the removal, or actions incidental to the removal, of a tank system except as authorized under KRS 224.60-130 (1)(j);
    2. For payment of or reimbursement for third-party claims for bodily injury and property damage, related to a facility eligible for participation in the financial responsibility account, which are asserted against a petroleum storage tank owner or operator as a result of a release into the environment from a petroleum storage tank;
    3. To pay the reasonable, prorated costs incurred by the division in administering each account; and
    4. The cost to operate the small operators’ assistance account pursuant to KRS 224.60-130 (1)(d), the small operators’ tank removal account pursuant to KRS 224.60-130(1)(j), to perform or contract for the performance of financial audits conducted under KRS 224.60-130(1)(k), and to employ sufficient inspectors to carry out the provisions of KRS 224.60-130 and to set forth their duties. These costs shall be prorated to each account.
  3. The use of the fund shall not exceed one million dollars ($1,000,000) per occurrence for corrective action and one million dollars ($1,000,000) per occurrence for compensating third parties for bodily injury and property damage.
  4. Money in the fund may be used by the cabinet for costs incurred by the cabinet for corrective action taken pursuant to KRS 224.60-135 (2) and (4).
  5. The fund shall be used to guarantee payment of reasonable costs and expenses to a contractor performing corrective action under contract with a petroleum storage tank owner or operator subject to entry level amounts payable by the petroleum storage tank owner or operator. Money in the fund shall be obligated to secure the guarantee.
  6. A petroleum storage tank owner or operator may apply to the division for reimbursement from the fund of costs to perform corrective action, except that the petroleum storage tank owner or operator shall be responsible for and shall not be reimbursed for an amount equal to the entry level into the fund as set pursuant to administrative regulation of the division.
  7. The division or its designated agent shall issue all decisions made on claims filed pursuant to this section in writing, with notification to all appropriate parties, within ninety (90) days after submission of the claim, unless all parties to the claim agree in writing to an extension of time. The division shall by phone or facsimile transmission immediately notify the claim applicant and its consultant, if applicable, when the claim is determined to be deficient. The notification shall provide sufficient information to allow the applicant and its consultant, if applicable, to begin to correct the deficiency. The division shall then notify the applicant and its consultant, if applicable, by certified mail of the deficiency. The notice shall indicate how many days remain in the ninety (90) day review period from the time of mailing. The review period shall be tolled pending submittal of information responding to the deficiency, but not to exceed thirty (30) days. When the division receives information that corrects the deficiency, or at the end of the thirty (30) day period, the division shall complete the review of the claim within the time remaining in the ninety (90) day review period. Nothing in this section shall be construed as preventing the fund from making partial reimbursement as appropriate.
  8. Except as provided in subsection (9), any costs incurred and payable from the fund for corrective action taken pursuant to KRS 224.60-135 (2) shall be recovered by the division from the petroleum storage tank owner or operator which released the petroleum or petroleum products into the environment.
  9. The liability of a petroleum storage tank owner or operator subject to a cost recovery under this section shall not exceed an amount equal to the entry level into the fund, the division’s cost incurred in the cost recovery, and any penalties applied in accordance with KRS 224.60-155 . This amount shall include any expenditures made by the petroleum storage tank owner or operator for the release into the environment from the petroleum storage tank that is the subject of the cost of recovery.
  10. The amount of costs determined pursuant to subsections (8) and (19) of this section shall be recoverable in a civil action. This subsection does not deprive a party of any defense the party may have.
  11. Money recovered by the division pursuant to this section shall be deposited in the appropriate account.
  12. Upon motion and sufficient showing by any party, the court shall join to the action any person who may be liable for costs or expenditures recoverable pursuant to this section.
    1. Any party found liable for any costs or expenditures recoverable under this section who establishes that only a portion of those costs or expenditures are attributable to their actions, shall pay only for that portion. (13) (a) Any party found liable for any costs or expenditures recoverable under this section who establishes that only a portion of those costs or expenditures are attributable to their actions, shall pay only for that portion.
    2. If the trier of fact finds the evidence insufficient to establish each party’s portion of costs or expenditures pursuant to subsection (12) of this section, the court shall apportion those costs or expenditures, to the extent practicable according to equitable principles among the defendants.
    3. The appropriate account shall pay any portion of the judgment in excess of the aggregate amount of costs or expenditures apportioned under paragraphs (a) and (b) of this subsection.
    1. No indemnification, hold harmless, conveyance, or similar agreement shall be effective to transfer any liability for costs recoverable under this section. This subsection shall not bar any agreement to insure, hold harmless, or indemnify a party to the agreement for any costs under KRS 224.60-105 to 224.60-160 . (14) (a) No indemnification, hold harmless, conveyance, or similar agreement shall be effective to transfer any liability for costs recoverable under this section. This subsection shall not bar any agreement to insure, hold harmless, or indemnify a party to the agreement for any costs under KRS 224.60-105 to 224.60-160 .
    2. The entry of judgment against any party to the action shall not bar any future action by the fund against any other person who is later discovered to be potentially liable for costs paid from the fund.
    3. Payment of any claim by the fund pursuant to KRS 224.60-105 to 224.60-160 shall be subject to the state acquiring by subrogation the rights of the claimant to recover those costs of corrective action for which it has compensated the claimant from the person responsible or liable for the release.
  13. This section shall not be construed as authorizing recovery for costs of corrective action resulting from any release authorized or permitted pursuant to state or federal law.
  14. The cabinet shall attempt, to the maximum extent practicable, to secure or obtain funds that may be available for corrective actions under federal laws. However, nothing in this subsection shall prevent the cabinet from expending any funds available under KRS 224.60-105 to 224.60-160 if such federal funds are determined to be unavailable.
  15. The fund shall not be used for corrective action, reimbursement, or third-party liability resulting from releases from petroleum storage tanks used exclusively for storage of fuel used in the operation of a commercial ship or vessel oil tanks used exclusively for storage of fuel used for the purposes of powering locomotives.
    1. Any person filing a claim for reimbursement from the division shall, prior to filing the claim for reimbursement, ensure full payment of the claims of all vendors and subcontractors who have performed work or supplied materials related to corrective action at an underground storage tank facility, where labor or materials supplied by a vendor or subcontractor form a basis for at least part of the claim for reimbursement. (18) (a) Any person filing a claim for reimbursement from the division shall, prior to filing the claim for reimbursement, ensure full payment of the claims of all vendors and subcontractors who have performed work or supplied materials related to corrective action at an underground storage tank facility, where labor or materials supplied by a vendor or subcontractor form a basis for at least part of the claim for reimbursement.
    2. A vendor or subcontractor may waive, in writing, his right to receive full payment before the person files the claim for reimbursement. Any vendor or subcontractor who waives, in writing, his right to full payment shall also waive, in writing, his right to take legal recourse against the division and the underground storage tank facility owner or operator for nonpayment from a prime contractor for work performed or materials supplied to the prime contractor during corrective action at an underground storage tank facility. Any vendor or subcontractor who waives, in writing, his right to full payment prior to the filing of the claim for reimbursement shall acknowledge in the written waiver that his, his heirs’ , successors’ , and assigns’ sole recourse for the nonpayment of work performed or materials supplied to a prime contractor during corrective action at an underground storage tank facility is to proceed against the prime contractor for whom he performed the work or supplied materials. Any vendor or subcontractor who waives, in writing, his right to full payment prior to the filing of the claim for reimbursement shall release and discharge any liens filed as a result of work performed or materials provided at the underground storage tank facility. Subcontractor and vendor waivers must be made on standard forms furnished by the division. Their signatures must be notarized.
    3. Unless the provisions of paragraph (b) of this subsection apply, any person filing a claim for reimbursement from the division shall certify, by affidavit, on standard forms furnished by the division, that all vendors and subcontractors who have performed work or supplied materials related to corrective action at an underground storage tank facility, where labor and materials supplied by a vendor or subcontractor form a basis for at least part of the claim for reimbursement, have been paid in full as of the date of submission of the claim for reimbursement. A single affidavit may be made for each claim for reimbursement, provided, however, that the representations made in the affidavit shall be applied to each vendor or subcontractor individually, and, where false, shall be treated, as to each vendor or subcontractor, as a separate violation for the purpose of applying any criminal statute.
    4. Any person with responsibility for administering the division who believes, or has information, that an affidavit submitted pursuant to this subsection contains false or misleading information, or any person with responsibility for administering the division who believes or has information that an application for financial assistance or a claim for reimbursement contains false or misleading information, shall provide that information to the Commonwealth’s attorney whose jurisdiction includes the county where the majority of the subject underground storage tank facility is located. That person may additionally provide the information to any other interested prosecutor with jurisdiction to prosecute crimes pertaining to an application for financial assistance or the claim for reimbursement.
  16. Any person who knowingly makes a false statement, representation, or certification in an application for reimbursement from the fund, or in any supporting documentation attached thereto, shall be responsible for and shall not be reimbursed for any amounts incurred based upon the false statement, representation, or certification. Any costs incurred and paid from the fund which are based on a false statement, representation, or certification in an application for reimbursement from the fund, or in any supporting documentation attached thereto, shall be recovered by the fund administrators from the person who asserted the false statement, representation, or certification.

History. Enact. Acts 1990, ch. 370, § 8, effective April 9, 1990; 1992, ch. 450, § 4, effective April 13, 1992; 1996, ch. 295, § 3, effective July 15, 1996; 1998, ch. 284, § 6, effective July 15, 1998; 1998, ch. 498, § 5, effective July 15, 1998; 2000, ch. 409, § 1, effective July 14, 2000; 2002, ch. 361, § 4, effective July 15, 2002; 2005, ch. 123, § 27, effective June 20, 2005.

Compiler’s Notes.

This section was formerly compiled as KRS 224.821 .

NOTES TO DECISIONS

1.Administrative Action.

Chapter 11 debtors-in-possession in a bankruptcy action claimed that the enactment of the 415 KAR 1:080E, relating to KRS 224.60-140 and storage tanks: (1) retroactively deprived them of their property; (2) impaired their contracts; and (3) destroyed their businesses and bankruptcy estates; the court agreed with the debtors and found violations of the Constitution and the Bankruptcy Code. Techs. Intl Holdings, Inc. v. Commonwealth (In re Techs. Int'l Holdings, Inc.), 2003 Bankr. LEXIS 1541 (Bankr. E.D. Ky. Nov. 24, 2003).

Opinions of Attorney General.

Attorney fees are reimbursable by the Petroleum Storage Tank Environmental Assurance Commission where the fee represents a reasonable cost for actual work performed, as indicated by complete and comprehensive invoicing from the attorney, and where the work performed is reasonably and necessarily required for assessment or remediation efforts of a specific site or sites. The Commission is not authorized to pay for general advice or other matters which are not specifically required for the cleanup effort. OAG 93-34 .

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. V, C, 3 at 940.

224.60-142. Registration for participation in fund — Time deadlines.

  1. To be eligible to participate in the fund, the owner of any petroleum storage tank containing motor fuels installed and placed in operation after July 15, 2004, shall register the petroleum storage tank with the cabinet as required by KRS 224.60-105 prior to applying for participation in the financial responsibility account.
  2. The owner of any petroleum storage tank containing motor fuels currently existing, or removed from the ground after January 1, 1974, shall register the petroleum storage tank containing motor fuels with the cabinet prior to applying to the fund, and shall register the petroleum storage tank containing motor fuels by July 15, 2025. Owners or operators may submit affidavits and applications relevant to current petroleum storage tank accounts through July 15, 2025.

History. Enact. Acts 1992, ch. 450, § 5, effective April 13, 1992; 1994, ch. 421, § 2, effective July 15, 1994; 1996, ch. 295, § 4, effective July 15, 1996; 1998, ch. 498, § 6, effective July 15, 1998; 2000, ch. 409, § 2, effective July 14, 2000; 2002, ch. 361, § 5, effective July 15, 2002; 2004, ch. 26, § 2, effective July 13, 2004; 2007, ch. 78, § 1, effective March 23, 2007; 2010, ch. 47, § 1, effective July 15, 2010; 2013, ch. 47, § 1, effective June 25, 2013; 2016 ch. 9, § 1, effective July 15, 2016; 2020 ch. 91, § 32, effective April 15, 2020; 2021 ch. 156, § 11, effective March 29, 2021.

224.60-145. Petroleum environmental assurance fee — Deposit of fee — Surplus in accounts — Administration by Department of Revenue — Sunsetting of account claims activity.

  1. Except as provided in subsection (2) of this section, there is established a petroleum environmental assurance fee to be paid by dealers on each gallon of gasoline and special fuels received in this state.
  2. All deductions detailed in KRS 138.240(2) and all credits detailed in KRS 138.358 are exempt from the fee. If a dealer has on file, pursuant to KRS Chapter 138, a statement supporting a claimed exemption, an additional statement shall not be required for claiming exemption from the fee.
  3. The fee shall be reported and paid to the Department of Revenue at the same time and in the same manner as is required for the reporting and payment of the gasoline and special fuels taxes as provided by law.
  4. The petroleum environmental assurance fee shall be set at one and four-tenths cent ($0.014) for each gallon. Four-tenths of a cent ($0.004) per gallon shall be deposited in the financial responsibility account and one cent ($0.01) shall be deposited in the petroleum storage tank account.
  5. Within thirty (30) days of the close of fiscal year 2001-2002 and each fiscal year thereafter, the state budget director shall review the balance of each account to determine if a surplus exists. “Surplus” means funds in excess of the amounts necessary to satisfy the obligations in each account for all eligible facilities, to satisfy future liabilities and expenses necessary to operate each account, and to maintain an appropriate reserve in the financial responsibility account to demonstrate financial responsibility and compensate for third-party claims. The state budget director shall report the determination to the Interim Joint Committee on Appropriations and Revenue. After a determination that a surplus exists, the surplus shall be transferred to a restricted account and retained until appropriated by the General Assembly.
  6. All provisions of law related to the Department of Revenue’s administration and enforcement of the gasoline and special fuels tax and all other powers generally conveyed to the Department of Revenue by the Kentucky Revised Statutes for the assessment and collection of taxes shall apply with regard to the fee levied by KRS 224.60-105 to 224.60-160 .
  7. The Department of Revenue shall refund the fee imposed by KRS 224.60-145 (1) to any person who paid the fee provided they are entitled to a refund of motor fuel tax under KRS 138.344 to KRS 138.355 and to any person who paid the fee on transactions exempted under KRS 224.60-145 (2).
  8. Notwithstanding any other provisions of KRS 65.180 , 65.182 , 68.600 to 68.606 , 139.470 , 183.165 , 224.60-115 , 224.60-130 , 224.60-137 , 224.60-140 , 224.60-142 , and this section to the contrary, the small operator assistance account and small operator tank removal account established under KRS 224.60-130 shall continue in effect until July 15, 2025, and thereafter until all eligible claims related to tanks registered by that date are resolved, and sufficient money shall be allocated to and maintained in that account to assure prompt payment of all eligible claims, and to provide for removal of tanks for eligible owners and operators as directed by this chapter.

History. Enact. Acts 1990, ch. 370, § 9, effective April 9, 1990; 1992, ch. 450, § 6, effective April 13, 1992; 1994, ch. 421, § 3, effective July 15, 1994; 1998, ch. 284, § 7, effective July 15, 1998; 1998, ch. 498, § 8, effective July 15, 1998; 2002, ch. 361, § 6, effective July 15, 2002; 2004, ch. 26, § 3, effective July 13, 2004; 2005, ch. 85, § 632, effective June 20, 2005; 2005, ch. 134, § 2, effective June 20, 2005; 2007, ch. 78, § 3, effective March 23, 2007; 2010, ch. 47, § 3, effective July 15, 2010; 2013, ch. 47, § 3, effective June 25, 2013; 2016 ch. 9, § 3, effective July 15, 2016; 2020 ch. 91, § 33, effective April 15, 2020.

Compiler’s Notes.

This section was formerly compiled as KRS 224.822 .

NOTES TO DECISIONS

1.Constitutionality.

Trial court erred in finding that Kentucky's refund scheme for special fuel taxes and petroleum environmental assurance fees violated the Due Process Clause where those taxes and fees were properly applied to any and all people or companies purchasing the relevant products, and the pre-purchase refund permit process was a valid procedural requirement that gave taxpayers an opportunity to challenge the taxes and fees owed on special fuels so long as they met statutory requirements. Dep't of Revenue, Fin. & Admin. Cabinet v. Revelation Energy, LLC, 544 S.W.3d 170, 2018 Ky. App. LEXIS 98 (Ky. Ct. App. 2018).

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. V, C, 3 at 940.

Northern Kentucky Law Review.

Perkins, Petroleum Storage Regulation in Kentucky, 22 N. Ky. L. Rev. 59 (1995).

224.60-150. Funding for administration of underground storage tank program.

  1. The cabinet shall levy and collect annual fees in the amount of thirty dollars ($30) per tank from the owners or operators of underground storage tanks containing regulated substances for the purpose of funding the administration of the underground storage tank program. The fees shall be deposited into an interest-bearing account in the State Treasury. Money unexpended at the close of a fiscal year shall not lapse, but shall be carried forward to the next fiscal year or biennium for future use.
  2. The cabinet shall recover actual and necessary expenditures incurred in the administration of the underground storage tank program including expenditures for corrective action. Any expenditures recovered shall be placed in the account established by this section.

History. Enact. Acts 1990, ch. 370, § 10, effective April 9, 1990; 1992, ch. 450, § 7, effective April 13, 1992.

Compiler’s Notes.

This section was formerly compiled as KRS 224.823 .

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. V, C, 3 at 940.

224.60-155. Penalty.

  1. Any underground storage tank owner or operator who fails to comply with KRS 224.60-105 or regulations promulgated thereto shall be subject to a civil penalty not to exceed five thousand dollars ($5,000) for each day of violation.
  2. In determining the civil penalty to be imposed pursuant to this section, the cabinet or court shall consider all relevant circumstances including, but not limited to, the extent of harm or potential harm caused by the violation, the nature and duration of the violation, the number of past violations, and any corrective action taken by the underground tank owner or operator.
  3. No civil penalty may be imposed under this section if the underground storage tank owner or operator already has been penalized for the same violation under federal regulations.
  4. The United States Environmental Protection Agency, for purposes of collecting civil penalties, is not a third-party claimant under any of the provisions of KRS 224.60-105 to 224.60-160 .

History. Enact. Acts 1990, ch. 370, § 11, effective April 9, 1990.

Compiler’s Notes.

This section was formerly compiled as KRS 224.824 .

Research References and Practice Aids

Journal of Natural Resources & Environmental Law.

Articles, Common Law Remedies Available for Petroleum Contamination of Soil and Groundwater in Kentucky, 13 J. Nat. Resources & Envtl. L. 1 (1998-99).

224.60-160. Severability.

If any of the provisions of KRS 224.60-105 to 224.60-160 are invalidated by any court of competent jurisdiction, the remainder of the provisions shall not be affected.

History. Enact. Acts 1990, ch. 370, § 12, effective April 9, 1990.

Compiler’s Notes.

This section was formerly compiled as KRS 224.825 .

SUBCHAPTER 70. Water Quality

224.70-100. Policy and purpose as to water quality.

  1. It is hereby declared to be the policy of this Commonwealth to conserve the waters of the Commonwealth for public water supplies, for the propagation of fish and aquatic life, for fowl, animal wildlife and arboreous growth, and for agricultural, industrial, recreational and other legitimate uses; to provide a comprehensive program in the public interest for the prevention, abatement and control of pollution; to provide effective means for the execution and enforcement of such program; and to provide for cooperation with agencies of other states or of the federal government in carrying out these objectives.
  2. The following are among the purposes of KRS Chapter 224: to safeguard from pollution the uncontaminated waters of the Commonwealth; to prevent the creation of any new pollution of the waters of the Commonwealth; and to abate any existing pollution.

History. Enact. Acts 1950, ch. 69, §§ 1, 2; 1978, ch. 384, § 87, effective June 17, 1978.

Compiler’s Notes.

This section was originally compiled as KRS 220.590 and was renumbered as KRS 224.020 prior to being renumbered as this section.

NOTES TO DECISIONS

Cited:

Morgan v. Natural Resources & Envtl. Protection Cabinet, 6 S.W.3d 833, 1999 Ky. App. LEXIS 157 (Ky. Ct. App. 1999).

Opinions of Attorney General.

The proposed administrative regulation WP-6-2 entitled “Effluent Limitations and Compliance,” presented to the environmental quality commission on April 23, 1973, is illegal and in contravention of the laws of the Commonwealth relating to control, prevention and abatement of water pollution and therefore this regulation cannot be validly adopted by the Department for Natural Resources and Environmental Protection (now Natural Resources and Environmental Protection Cabinet). OAG 73-395 .

Research References and Practice Aids

Cross-References.

Fish and wildlife resources, KRS Ch. 150.

Forestry, KRS Ch. 149.

Kentucky Bench & Bar.

Gorton, Waters of the United States: “Federal Jurisdiction Over Activities On My Property?”, Volume 75, No. 6, November 2011, Ky. Bench & Bar 22.

Kentucky Law Journal.

Begley and Williams, Coal Mine Water Pollution: An Acid Problem with Murky Solutions, 64 Ky. L.J. 506 (1975-76).

Northern Kentucky Law Review.

Perkins, Petroleum Storage Regulation in Kentucky, 22 N. Ky. L. Rev. 59 (1995).

224.70-110. General prohibition against water pollution.

No person shall, directly or indirectly, throw, drain, run or otherwise discharge into any of the waters of the Commonwealth, or cause, permit or suffer to be thrown, drained, run or otherwise discharged into such waters any pollutant, or any substance that shall cause or contribute to the pollution of the waters of the Commonwealth in contravention of the standards adopted by the cabinet or in contravention of any of the rules, regulations, permits, or orders of the cabinet or in contravention of any of the provisions of this chapter.

History. Enact. Acts 1950, ch. 69, § 7; 1972 (1st Ex. Sess.), ch. 3, § 10; 1974, ch. 355, § 4; 1978, ch. 257, § 1, effective June 17, 1978.

Compiler’s Notes.

This section was originally compiled as KRS 220.630 and was renumbered as KRS 224.060 prior to being renumbered as this section.

NOTES TO DECISIONS

1.Consent Decree.

Metropolitan sewer district was not entitled to employ the dispute resolution provision of a consent decree arising from an action under 33 USCS § 1319 of the Clean Water Act and KRS 224.99-010 and 224.70-110 , because the U.S. Environmental Protection Agency’s request for information under 33 USCS § 1318 did not generate a dispute arising under or with respect to the consent decree. Kentucky v. Louisville & Jefferson County Metro. Sewer Dist., 542 F. Supp. 2d 668, 2008 U.S. Dist. LEXIS 11319 (W.D. Ky. 2008 ).

2.Construction.

Circuit court is correct in its description of KRS 224.70-110 as being broader in scope than its counterpart of the Clean Water Act, and it is, nevertheless, important to note that this statute, while broad, is also very general, and indeed, it is the opinion of the court that this statute is prohibitive and not regulatory in nature, that is, it serves only to generally prohibit activities which are in violation of other specific statutory or regulatory requirements; thus, the court simply cannot agree with the trial court’s accompanying conclusion that the requirements of KRS 224.70-110 can only be satisfied by the issuance of Kentucky Pollution Discharge Elimination System permits, and in truth, KRS 224.70-110 does not in any way address the manner in which the Commonwealth of Kentucky, Energy and Environment Cabinet is to impose regulatory requirements on activities that are subject to its jurisdiction. Commonwealth v. Sharp, 2012 Ky. App. LEXIS 189 (Ky. Ct. App. May 25, 2012).

While KRS 224.70-110 is very general in nature, KRS 224.16-050 (4) is unquestionably specific in its mandate, providing that no Kentucky Pollution Discharge Elimination System (KPDES) permit shall impose limitations, requirements or other conditions more stringent than would have been imposed under a federally issued National Pollutant Discharge Elimination System (NPDES) permit; the KPDES program is, in fact, expressly constrained by the federal NPDES permit program and, thus, cannot be implemented in a manner that is more stringent than federal law, case law clearly provides that an operation only needs a NPDES permit if that operation is a point source discharge, and it seems axiomatic that, where no federal NPDES permit would be required, any KPDES permit would necessarily be more stringent, and thus in conflict with KRS 224.16-050 (4). Commonwealth v. Sharp, 2012 Ky. App. LEXIS 189 (Ky. Ct. App. May 25, 2012).

Circuit court is correct in its description of KRS 224.70-110 as being broader in scope than Section 402 of the Clean Water Act, but it is, nevertheless, important to note that this statute, while broad, is also very general, and indeed, it is the opinion of the court that this statute is prohibitive and not regulatory in nature, that is, it serves only to generally prohibit activities which are in violation of other specific statutory or regulatory requirements; thus, the court simply cannot agree with the court’s accompanying conclusion that the requirements of KRS 224.70-110 can only be satisfied by the issuance of Kentucky Pollution Discharge Elimination System permits, and in truth, KRS 224.70-110 does not in any way address the manner in which the Kentucky Energy and Environment Cabinet Division of Water is to impose regulatory requirements on activities that are subject to its jurisdiction. Adams v. Sharp, 2012 Ky. App. Unpub. LEXIS 1058 (Ky. Ct. App. May 25, 2012), review denied, ordered not published, 2013 Ky. LEXIS 569 (Ky. Oct. 16, 2013).

While KRS 224.70-110 is very general in nature, KRS 224.16-050 (4) is unquestionably specific in its mandate, providing that no Kentucky Pollution Discharge Elimination System (KPDES) permit shall impose limitations, requirements or other conditions more stringent than would have been imposed under a federally issued National Pollutant Discharge Elimination System (NPDES) permit; the KPDES program is, in fact, expressly constrained by the federal NPDES permit program and, thus, cannot be implemented in a manner that is more stringent than federal law, and case law clearly provides that an operation only needs a NPDES permit if that operation is a point source discharge. It seems axiomatic that, where no federal NPDES permit would be required, any KPDES permit would necessarily be more stringent, and thus in conflict with KRS 224.16-050 (4). Adams v. Sharp, 2012 Ky. App. Unpub. LEXIS 1058 (Ky. Ct. App. May 25, 2012), review denied, ordered not published, 2013 Ky. LEXIS 569 (Ky. Oct. 16, 2013).

Opinions of Attorney General.

When a utility discontinues sewer service due to financial insolvency of its owners, the customers have the responsibility for obtaining resumption of services by an action in circuit court against the owners to require sale of plant to purchaser who will operate it. OAG 76-22 .

Research References and Practice Aids

Kentucky Law Journal.

Woodroof, Pollution Control, Present and Potential: A Jurisprudential Evaluation of Cost Allocation as an Alternative, 61 Ky. L.J. 22 (1972).

Northern Kentucky Law Review.

Natter, How Clean is Clean? Hazardous Waste/Hazardous Substance Cleanup Standards Under Kentucky Law, 18 N. Ky. L. Rev. 295 (1991).

A Survey of Kentucky Environmental Law, 29 N. Ky. L. Rev. 1 (2002).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint in U.S. District Court for Polluting Sewer, Form 350.03.

224.70-120. Permit to discharge pollutants into waters — Fees.

  1. As used in this section, “cabinet” shall mean the Energy and Environment Cabinet.
  2. An applicant for a permit to discharge pollutants into waters of the Commonwealth shall be subject to a permit fee by the cabinet.
  3. The permit fee shall be equal to the cost of review but shall not exceed the following amounts:
    1. Major industry: three thousand two hundred dollars ($3,200);
    2. Minor industry: two thousand one hundred dollars ($2,100);
    3. Nonprocess industry: one thousand dollars ($1,000);
    4. Large, non-publicly-owned treatment works: one thousand seven hundred dollars ($1,700);
    5. Intermediate, non-publicly-owned treatment works: one thousand five hundred dollars ($1,500);
    6. Small, non-publicly-owned treatment works: one thousand dollars ($1,000);
    7. Agriculture: one thousand two hundred dollars ($1,200); and
    8. Surface mining operation: one thousand two hundred dollars ($1,200).
  4. The cabinet may impose the maximum permit fee if a discharge falls into multiple categories.

HISTORY: Enact. Acts 1990, ch. 471, § 1, effective July 13, 1990; 2010, ch. 24, § 379, effective July 15, 2010; 2017 ch. 117, § 20, effective June 29, 2017.

Compiler’s Notes.

This section was formerly compiled as KRS 224.1151 .

224.70-130. Imposition of charges on publicly owned treatment works.

  1. The cabinet may require that any applicant for a grant under Title II of The Federal Water Pollution Control Act (33 U.S.C. secs. 1251 et seq.) shall adopt and maintain a system of charges in keeping with Section 1284(b) and to establish a special account as set forth in Section 1284(b)(3) of the Act.
  2. If an applicant for a Title II grant lacks statutory authority to conform with subsection (1) of this section, this section provides such statutory authority.
  3. If the system of charges required, under Section 1284(b) of the Act, creates a significant incentive for industries discharging into publicly owned treatment works applying for a Title II grant to relocate in other areas of the Commonwealth, or if the system of charges required under Section 1284(b) discourages publicly owned treatment works from seeking Title II grants, then the cabinet may require that all publicly owned treatment works in the Commonwealth adopt and maintain a system of charges comparable to those required by Section 1284(b) of the Act.

History. Enact. Acts 1974, ch. 355, § 7.

Compiler’s Notes.

This section was formerly compiled as KRS 224.125 .

224.70-140. Consistency of permits with Kentucky River Authority’s administrative regulations and plans.

Permits issued by the cabinet pursuant to the provisions of KRS Chapters 151, 146, or 224 shall be consistent with the administrative regulations promulgated by the Kentucky River Authority, and the long-range water resource plan and drought response plans developed by the authority.

History. Enact. Acts 1992, ch. 453, § 3, effective July 14, 1992.

224.70-150. Cabinet to maintain on its Web site a listing of waters defined as impaired by federal law — Requirement for notice and opportunity for hearing to interested persons before submission to the Environmental Protection Agency of an impaired water designation for any new waters — Cabinet’s duty to provide notice and opportunity for public review and input in addition to federal notice requirements — Cabinet’s duty to remove from impaired listing waters which now meet water quality standards.

    1. Beginning on July 1, 2014, the cabinet shall maintain on its Web site a listing of: (1) (a) Beginning on July 1, 2014, the cabinet shall maintain on its Web site a listing of:
      1. All waters or portion thereof in the Commonwealth identified pursuant to 33 U.S.C. sec. 1313(d) ;
      2. Total maximum daily loads established after June 25, 2013; and
      3. All waters or portion thereof in the Commonwealth for which notice is provided pursuant to subsection (2) of this section.
    2. The listing required by this subsection shall include:
      1. A detailed summary, in plain and unambiguous words that are easily understood by laymen, of the basis for the listing. The summary shall identify the location of all available data, in reasonably accessible form, utilized in the cabinet’s identification of the waters or portion thereof and establishment of the total maximum daily load; and
      2. Sources of information utilized, sources and methods of data collection and analysis, and the age of the data utilized.
    3. The cabinet shall maintain on its Web site a listing of local, state, and federal resources, along with contact information, available to communities in efforts to enhance compliance with applicable water quality standards.
  1. No later than ninety (90) days prior to submitting to the United States Environmental Protection Agency a new water or portion thereof to be included in the list of waters or portion thereof identified pursuant to 33 U.S.C. secs. 1313(d)(1) (A) and 1313(d)(1)(B), the cabinet shall provide notice in accordance with subsection (4) of this section that water quality data may indicate that the water or portion thereof does not meet water quality standards applicable to that water or portion thereof and shall offer the opportunity for review and public comment of no less than sixty (60) days on the listing decision and the data and justification therefor.
  2. In addition to any other requirement imposed by federal law, prior to developing a total maximum daily load pursuant to 33 U.S.C. sec. 1313 after June 25, 2013, the cabinet shall provide notice in accordance with subsection (4) of this section and shall offer the opportunity for public review and input throughout the total maximum daily load development process.
  3. Notice provided pursuant to subsections (2) and (3) of this section may be provided electronically and shall:
    1. Include a reference to the location where additional information may be found, including the county or counties in which the water or portion thereof is located; and
    2. Be provided to all persons who have requested to be notified of new waters added to the listing or total maximum daily load development.
  4. If any water or portion thereof that has previously been listed or a total maximum daily load established pursuant to 33 U.S.C. sec. 1313(d) meets water quality standards, the cabinet shall take all necessary measures pursuant to applicable laws and regulations to remove the listing and any requirements as a result of the establishment of the total maximum daily load, except as necessary to otherwise comply with applicable laws and regulations.

History. Enact. Acts 2013, ch. 98, § 1, effective June 25, 2013.

SUBCHAPTER 71. Agriculture Water Quality

224.71-100. Definitions for KRS 224.71-100 to 224.71-140.

As used in KRS 224.71-100 to 224.71-140 , unless the context requires otherwise:

  1. “Agriculture operation” means any farm operation on a tract of land, including all income-producing improvements and farm dwellings, together with other farm buildings and structures incident to the operation and maintenance of the farm, situated on ten (10) contiguous acres or more of land used for the production of livestock, livestock products, poultry, poultry products, milk, milk products, or silviculture products, or for the growing of crops such as, but not limited to, tobacco, corn, soybeans, small grains, fruit and vegetables; or devoted to and meeting the requirements and qualifications for payments to agriculture programs under an agreement with the state or federal government;
  2. “Bad actor” means any person engaged in agriculture operations, who receives written notification of documented water pollution and of the agriculture water quality plan needed to prevent water pollution, and is provided technical assistance, and financial assistance when possible, to implement the agriculture water quality plan, but still refuses or fails to comply with the requirements of the agriculture water quality plan;
  3. “Best management practices” means, for agriculture operations, the most effective, practical, and economical means of reducing and preventing water pollution provided by the United States Department of Agriculture Natural Resources Conservation Service and the Soil and Water Conservation Commission. Best management practices shall establish a minimum level of acceptable quality for planning, siting, designing, installing, operating, and maintaining these practices;
  4. “Conservation plan” means a plan, provided by the United States Department of Agriculture Natural Resources Conservation Service and the Soil and Water Conservation Commission, describing best land management practices, including an installation schedule and maintenance program, which when completely implemented, will improve and maintain soil, water, and related plant and animal resources of the land;
  5. “Compliance plan” means a conservation plan containing best management practices developed for persons engaged in agriculture operations by the United States Department of Agriculture Natural Resources Conservation Services, in conjunction with local conservation districts as required for eligibility under the Federal Food Security Act;
  6. “Forest stewardship management plan” means a plan developed by the cabinet’s Division of Forestry, the cabinet’s Division of Conservation, the Department of Fish and Wildlife Resources, and the United States Department of Agriculture Natural Resources Conservation Service which establishes practices for a person engaged in agriculture operations to manage forest lands in accordance with sound silvicultural principles;
  7. “Conservation district” means a subdivision of state government organized pursuant to KRS Chapter 262 for the specific purpose of assisting persons engaged in agriculture operations and land users in solving soil and water resources problems, setting priorities for conservation work to be accomplished, and coordinating the federal, state, and local resources to carry out these programs;
  8. “Groundwater” means subsurface water occurring in the zone of saturation beneath the water table and any perched water zones below the B soil horizon;
  9. “Water priority protection region” means an area specifically delineated where water pollution from agriculture operations has been scientifically documented;
  10. “Agriculture water quality plan” means a document incorporating the conservation plan, compliance plan, or forest stewardship management plan as necessary to prevent groundwater and surface water pollution from an agriculture operation;
  11. “Surface water” means those waters having well-defined banks and beds, either constantly or intermittently flowing; lakes and impounded waters, marshes and wetlands; and any subterranean waters flowing in well-defined channels and having a demonstrable hydrologic connection with the surface. Effluent ditches and lagoons used for waste treatment which are situated on property owned, leased, or under valid easement by a permitted discharger shall not be considered to be surface waters of the Commonwealth;
  12. “Soil and Water Conservation Commission” means the commission created in KRS 146.090 for the purpose of administering the organization of conservation districts; and
  13. “Livestock” means cattle, sheep, swine, goats, horses, alpacas, llamas, buffaloes, or any other animals of the bovine, ovine, porcine, caprine, equine, or camelid species.

History. Enact. Acts 1994, ch. 182, § 1, effective July 15, 1994; 2017 ch. 129, § 14, effective June 29, 2017; 2019 ch. 50, § 2, effective June 27, 2019.

224.71-110. Agriculture Water Quality Authority — Membership — Responsibilities.

  1. The Agriculture Water Quality Authority is created and administratively attached to the cabinet. The authority shall be a multidiscipline peer group that shall evaluate, develop, and improve best-management practices in conservation plans, compliance plans, and forest stewardship management plans; establish statewide and regional agriculture water quality plans; and otherwise promote soil and water conservation activities that protect waters of the Commonwealth from the adverse impacts of agriculture operations within the Commonwealth. The cabinet shall provide staff to the authority.
  2. Within six (6) months of July 15, 1994, the Soil and Water Conservation Commission shall submit to the Governor for appointment to the Agriculture Water Quality Authority a list of three (3) persons recommended by each of the following state agencies and organizations:
    1. Kentucky Association of Conservation Districts;
    2. Kentucky Department of Agriculture;
    3. University of Kentucky College of Agriculture Cooperative Extension Service;
    4. Kentucky Farm Bureau Federation, Inc.;
    5. Division of Conservation, Energy and Environment Cabinet;
    6. Division of Forestry, Energy and Environment Cabinet;
    7. Kentucky Geological Survey; and
    8. Environmental organizations.

      The membership of the Agriculture Water Quality Authority appointed by the Governor shall consist of one (1) representative from each of the groups identified in paragraphs (a) to (h) of this subsection and three (3) members at large from agriculture operations. The Soil and Water Conservation Commission shall solicit nominations from Kentucky agriculture operations organizations and submit those names to the Governor for selection of the three (3) members at large from agriculture operations. The Governor shall select four (4) members to serve two (2) year initial terms, four (4) members to serve three (3) year initial terms, and three (3) members to serve four (4) year initial terms. All succeeding terms shall be four (4) year terms. A representative from the Natural Resources Conservation Service and a representative from the United States Department of Agriculture Farm Service Agency may also be appointed by the Governor to serve on the authority. One (1) representative each from the Division of Water, Energy and Environment Cabinet and the Department for Public Health, Cabinet for Health and Family Services shall serve as ex officio members.

  3. It shall be the responsibility of the Agriculture Water Quality Authority to establish, at a minimum, the following four (4) committees for agriculture operations, with membership outside the Agriculture Water Quality Authority:
    1. Livestock and poultry;
    2. Crops, including but not limited to tobacco, corn, soybeans, small grains, fruits and vegetables, pasture and timber;
    3. Pesticides, fertilizers, and other agricultural chemicals; and
    4. Farmstead issues.
  4. The Agriculture Water Quality Authority shall have the following responsibilities:
    1. Review water quality data as available;
    2. Review university research on water quality and alternative best-management practices research;
    3. Evaluate the adoption and effectiveness of best-management practices, and modify best-management practice design standards to improve water quality protection practices;
    4. Develop by July 1, 1996, statewide agriculture water quality plans to address identifiable water pollution problems from agriculture operations, and continue to evaluate and modify the agriculture water quality plans, as necessary to prevent water pollution from agriculture operations;
    5. Assist with the review of state-funded and other water quality monitoring data and with the establishment of agriculture water priority protection regions;
    6. Provide technical assistance to persons engaged in agriculture operations and to the Soil and Water Conservation Commission in its efforts to coordinate water quality protection as related to agriculture operations;
    7. Work with the Natural Resources Conservation Service, United States Department of Agriculture Farm Service Agency, and conservation districts to disseminate to agriculture operations the best-management practices, conservation plans, compliance plans, forest stewardship management plans, and agriculture water quality plans which address the protection of groundwater and surface water;
    8. Provide the Governor and the Legislative Research Commission with biennial reports of the progress of the Agriculture Water Quality Authority program; and
    9. Establish procedures for modifications to be incorporated into statewide or regional agriculture water quality plans.
  5. The cabinet’s Division of Water shall approve or disapprove any statewide and regional water quality plan within thirty (30) days of receiving the plan from the Agriculture Water Quality Authority. All provisions of a statewide or regional water quality plan not found deficient shall be approved. If the Division of Water finds any provision of the statewide or regional agriculture water quality plan deficient, the Division of Water shall give written notice to the authority of those provisions found to be deficient. Within the thirty (30) days following the notice of deficiency, the authority shall deliver to the Division of Water a written response setting forth proposed solutions to the deficiencies. Any deficiencies which remain unresolved shall be resolved in a manner agreed to jointly by the Division of Water and the authority within sixty (60) days unless the Division of Water and authority jointly agree to an extension or alternate dispute resolution. The Division of Water shall approve or disapprove all modifications to the statewide and regional plans as set forth at KRS 224.71-120 (8).

History. Enact. Acts 1994, ch. 182, § 2, effective July 15, 1994; 1998, ch. 426, § 510, effective July 15, 1998; 2005, ch. 99, § 564, effective June 20, 2005; 2010, ch. 24, § 380, effective July 15, 2010; 2017 ch. 129, § 15, effective June 29, 2017; 2017 ch. 129, § 15, effective June 29, 2017; 2019 ch. 50, § 3, effective June 27, 2019.

224.71-120. Agriculture water quality plans — Monitoring — Water priority protection regions — Plan modifications.

Each agriculture operation shall establish an agriculture water quality plan as follows:

  1. In the case of an agriculture operation which already has in place a conservation plan, compliance plan, or forest stewardship management plan, the agriculture water quality plan for that agriculture operation shall be the conservation plan, compliance plan, or forest stewardship management plan until the time the statewide agriculture water quality plan for agriculture is developed, approved, and incorporated into the existing plan.
  2. All persons engaged in agriculture operations are encouraged to follow the best management practices provided by the Soil and Water Conservation Commission in the “Agriculture Best Management Practices Manual” until the statewide agriculture water quality plan is developed and approved.
  3. The approved statewide agriculture water quality plan shall establish the applicable requirements to be used by the technical agencies in assisting persons engaged in agriculture operations in the revision and modification of their conservation plans, compliance plans, or forest stewardship management plans. Within five (5) years of the approval of the statewide agriculture water quality plan, persons engaged in agriculture operations across the state shall implement the applicable requirements of the statewide plan. A person engaging in agriculture operations where water pollution has been documented by the cabinet shall be presumed to be in compliance with KRS 224.71-100 to 224.71-140 if that person has timely and properly implemented the applicable requirements of the statewide agriculture water quality plan. If it is determined that the plan does not prevent the documented water pollution, it shall be the responsibility of the Agriculture Water Quality Authority, not the agriculture operations, to identify the necessary modifications to the plan to prevent the documented pollution. The Commonwealth of Kentucky, through the conservation districts, shall assure that technical assistance is made available to assist persons engaged in agriculture operations with the implementation of the statewide plan requirements. The Commonwealth of Kentucky recognizes the public benefit of providing the financial resources necessary to protect groundwater and surface water and may make available cost share dollars to assist persons engaged in agriculture operations with the implementation of their plans as resources become available. The time for compliance with an agriculture water quality plan may be extended based on the availability of technical and financial assistance.
  4. To ensure the success of agriculture’s plan to protect groundwater and surface water, available statewide monitoring data shall be used to identify trends in water quality across the state and to complement the groundwater assessment program of KRS 247.088 . This data shall help identify water protection priority regions, develop a scientific water quality database, and develop sensitivity map information. As priority areas are identified on a regional or local basis, efforts shall be made to conduct an intensive monitoring program by the Division of Water, in cooperation with Kentucky Geological Survey, and the Agriculture Water Quality Authority, to investigate known or suspected instances of groundwater pollution.
  5. The cabinet’s Division of Water shall notify in writing the local conservation districts, the Soil and Water Conservation Commission, and the Agriculture Water Quality Authority that water pollution from agriculture operations within a region has been documented through data collected from monitoring efforts. The Division of Water, working with the Agriculture Water Quality Authority, shall designate water priority protection regions where it is documented that agriculture is contributing to water quality pollution problems. If the cabinet’s Division of Water identifies water pollution in a region, the authority shall reevaluate the effectiveness of the best management practices, and the applicable provisions of the statewide agriculture water quality plan in effect for agriculture operations in that region. Working with the Soil and Water Conservation Commission and the conservation district, the Agriculture Water Quality Authority shall develop a regional agriculture water quality plan and assist persons engaged in agriculture operations in the identified region in taking the appropriate steps to modify their agriculture water quality plan.
  6. Upon notice from the cabinet’s Division of Water that water pollution from agriculture operations has been documented in a water priority protection region of the state, the Soil and Water Conservation Commission and local conservation districts shall provide notice to persons engaging in agriculture operations within the region of the availability of any technical and financial assistance. The notice shall also state that, in order to qualify for any available assistance, the person engaging in agriculture operations shall comply with the regional water quality plan. The notice shall be in a form which shall not limit the ability of a person engaged in agriculture operations to participate in state and federal assistance programs. The Division of Water and the conservation districts, in consultation with the Agriculture Water Quality Authority, shall set the time for implementation of the regional water quality plan.
  7. A person engaging in agriculture operations in an agriculture water priority protection region shall implement the regional plan with assistance from the commission, the conservation districts, and the Division of Water.
  8. Persons engaged in agriculture operations may obtain modifications of any statewide or regional agriculture water quality plan by submitting the proposed modification for review to the appropriate conservation district in accordance with the procedure established in the statewide agriculture water quality plan. The conservation district shall review proposed modifications and make a recommendation to the Agriculture Water Quality Authority for consideration. If the authority recommends approval of the modification, the cabinet’s Division of Water shall approve or disapprove the modification on at least a quarterly basis, unless otherwise provided in the statewide agriculture water quality plan.
  9. A person engaging in agriculture operations who is in a water priority protection region where water pollution has been documented by the cabinet shall be presumed to be in compliance with KRS 224.71-100 to 224.71-140 if that person has timely and properly implemented the practices required by the portions of the regional agriculture water quality plan which apply to that person’s activities.
  10. Where there is documented evidence of a violation of water pollution laws or administrative regulations traceable to a specific agriculture operation, the provisions of KRS 224.71-130 shall govern the resolution of the violation.

History. Enact. Acts 1994, ch. 182, § 3, effective July 15, 1994.

224.71-130. Noncompliance with agriculture water quality plan.

  1. For purposes of KRS 224.71-100 to 224.71-140 , if the cabinet’s Division of Water documents that a person engaged in agriculture operations is conducting or allowing the conduct of any agriculture operation in a manner which results in water pollution or if the person fails to implement the provisions of the applicable agriculture water quality plan, the Division of Water shall notify the person in writing, with a copy of the notice to the appropriate conservation district, of the following:
    1. The facts alleged to constitute the water pollution or failure to comply with applicable laws or requirements of the agriculture water quality plan alleged to constitute the noncompliance;
    2. Availability of any technical and financial assistance from state or federal sources through the conservation districts; and
    3. Set forth a reasonable period for compliance or, the person engaged in agriculture operations may submit a compliance plan which may include a compliance schedule with corrective measures designed to correct the failure to conform with the applicable provisions of the agriculture water quality plan subject to approval by the Division of Water. A compliance schedule may incorporate corrective measures and time schedules recommended by the appropriate conservation district, if requested by persons engaged in agriculture operations.
  2. If any person engaged in agriculture operations fails or refuses to comply or respond to the written notice, unless excused or extended by the Division of Water, the person shall be deemed a “bad actor” and shall be subject to enforcement action for violations of KRS 224.71-100 to 224.71-140 as well as loss of eligibility for further financial assistance.
  3. In any violation issued under this section, the cabinet shall consider the compliance of a person with the state and any regional agriculture water quality plan as a mitigating factor in determining whether to impose civil penalties.

History. Enact. Acts 1994, ch. 182, § 4, effective July 15, 1994.

224.71-135. Confidentiality of documents relating to plans submitted by agriculture operations.

For purposes of KRS 224.71-100 to 224.71-140 , any documents relating to agriculture operations’ agriculture water quality plans, conservation plans, or forest stewardship management plans, submitted to a local conservation district office or a state agency shall be confidential, and their disclosure to anyone other than a state or federal official is prohibited. The privilege of confidentiality given under this section does not apply to an agriculture operation’s application for financial assistance from the soil erosion and water quality cost share program. The confidentiality given under this section shall not preclude disclosure of an agriculture operation’s agriculture water quality plan to the Agriculture Water Quality Authority pursuant to a request by the authority for the purpose of the authority carrying out its statutory duties. In a civil or administrative proceeding, after a private review consistent with the Kentucky Rules of Civil Procedure, all documents claimed confidential under this section shall be disclosed if the court or hearing officer determines that the documents claimed confidential show evidence of noncompliance with this chapter or with applicable federal, state, or local law. The party asserting the privilege of confidentiality shall have the burden of showing that the privilege is properly asserted. If any person engaged in an agriculture operation is deemed a “bad actor” under KRS 224.71-130 (2), the privilege of confidentiality given under this section to documents relating to the bad actor’s agriculture operation shall be lost. The confidentiality granted by this section shall not prohibit disclosure of statistical information not descriptive of any identifiable agriculture operation or person. Nothing in this section shall prohibit disclosure of agency reports, monitoring or sampling data, and other information contained in state or local conservation district files relating to water quality compliance and investigations or notices under KRS 224.71-130 .

History. Enact. Acts 2002, ch. 191, § 1, effective July 15, 2002.

224.71-140. Construction of KRS 224.71-100 to 224.71-140.

Nothing in KRS 224.71-100 to 224.71-140 shall be construed as affecting the obligation of any person concerning any permit, certification, or authorization required under state or federal law. Nothing in KRS 224.71-100 to 224.71-140 shall be construed to require the cabinet to give prior written notice in the case of any violation of a permit, certification, or authorization required under state or federal law or in the case of any violation requiring emergency action for violations of KRS 224.10-410 , 224.1-400 , and 151.297 or enforcement of any administrative or judicial order to protect human health or the environment.

History. Enact. Acts 1994, ch. 182, § 5, effective July 15, 1994.

Compiler’s Notes.

This section is set out above to reflect a correction to the section reference appearing in section from 224.01-400 to 224.1-400 due to renumbering by the state reviser effective in 2013.

224.71-145. Person implementing practice or plan under Clean Water Act nationwide permit to be deemed as having received state certification — Effect.

  1. Notwithstanding the provisions of KRS 224.71-140 , if any person conducting an agriculture, silviculture, or other similar best management or technically-assisted practice or plan as defined in KRS 224.71-100 (3), (4), (5), (6), or (10) is required to obtain a Clean Water Act Nationwide Permit No. 12, 13, 14, 26, 27, 33, or 37 and is, in good faith, implementing the practice or plan pursuant to KRS 224.71-120 , then the practice shall be deemed to have received the certification from the Commonwealth of Kentucky required pursuant to 33 U.S.C. sec. 1341(a) .
  2. If a person is deemed to have a certification pursuant to subsection (1) of this section, then the cabinet shall not require the person to apply for the certification or impose any other conditions on the activity pursuant to state law or the federal Clean Water Act, 33 U.S.C. secs. 1251 et seq., as amended.
  3. If a person has not been finally adjudged to be in violation of an approved agriculture water quality plan, or agriculture, silviculture, or other similar best management or technically-assisted plan or practice, then the person shall be deemed to be implementing the plan or practice in good faith for purposes of subsection (1) of this section.

History. Enact. Acts 1996, ch. 181, § 1, effective July 15, 1996.

SUBCHAPTER 73. Sewage Treatment

224.73-100. Sewage treatment company may condemn rights-of-way — Approval required — Objections.

Any corporation authorized to do business in this state and organized for the purpose of constructing, maintaining and operating sewer lines and sewage treatment facilities may, if it is unable to contract or agree with the owner after a good faith effort to do so, condemn rights-of-way necessary for constructing, maintaining and operating its pipelines and, if necessary, pumping stations; and the necessary ingress and egress to examine, alter, repair and maintain such pipelines. The condemnation proceedings shall be conducted in the manner provided in the Eminent Domain Act of Kentucky. Provided, however, that before any corporation shall be authorized to use the provisions of this section, it shall have presented plans and specifications to the Energy and Environment Cabinet and received from said cabinet a permit to operate and maintain said sewage treatment facilities together with an approval of the discharge of the treated effluent from said facilities to a specific point of the waters of this Commonwealth. Provided, further, that any person wishing to object to a pipeline or plant location subject to the provisions of this section shall have the right to have his objections heard by said cabinet pursuant to the provisions of KRS 224.10-440 .

History. Enact. Acts 1964, ch. 196, §§ 1 to 3; 1972 (1st Ex. Sess.), ch. 3, § 46; 1974, ch. 74, Art. III, § 13(2); 1976, ch. 140, § 94; 2010, ch. 24, § 381, effective July 15, 2010.

Compiler’s Notes.

This section was originally compiled as KRS 220.660 and was renumbered as KRS 224.130 prior to being renumbered as this section.

NOTES TO DECISIONS

1.Exemptions.

Sanitation district derived its power to condemn from KRS 220.310 and, thus, was not governed by the KRS 224.73-100 requirements to obtain a permit from the Cabinet prior to initiating condemnation proceedings. Garriga v. Sanitation Dist. No. 1, 2003 Ky. App. LEXIS 305 (Ky. Ct. App. Dec. 5, 2003).

Research References and Practice Aids

Cross-References.

Eminent Domain Act of Kentucky, KRS 416.540 et seq.

224.73-110. Board of certification of wastewater system operators — Duties — Examination and certification of operator — Classification of systems — Fees — Training required for certificate renewal — Waiver.

  1. The Kentucky Board of Certification of Wastewater System Operators is established. The board shall recommend qualified applicants to the cabinet for certification and perform other acts as may be necessary to carry out the purposes of this section. Members of the board shall be appointed by the Governor. The board shall consist of eight (8) members who may have professional backgrounds as follows: one (1) employee of a municipality who holds the position of either city manager, city engineer, director of public works, or the equivalent thereof; one (1) member who is a faculty member of a college, university, or professional school whose major field is related to wastewater treatment; one (1) nonvoting ex officio member representing the cabinet; and five (5) members currently employed as operators holding valid certificates where one (1) of these five (5) shall be an operator of an industrial wastewater system. Board members shall serve for a four (4) year term, except for the first board to which two (2) of the operators will be appointed for four (4) years and three (3) for two (2) years. The first college faculty member will be appointed for two (2) years and the remaining board members will be appointed for four (4) years. The cabinet’s representative shall serve as executive secretary and treasurer and be responsible for maintaining records. The members of the board shall serve without compensation but may be reimbursed for all actual and necessary expenses incurred while discharging their official duties. At least four (4) existing members of the board shall constitute a quorum.
  2. No person shall have primary responsibility for the operation of any sewage system or portion thereof whether publicly or privately owned unless:
    1. The person has passed an examination prescribed by the Energy and Environment Cabinet and board which shall determine the person’s skill and competency for the operation and has been issued a certificate to that effect by the cabinet; or
    2. The person is operating a sewage system located at the residence where the person lives and the sewage system serves only one (1) residence.
  3. No person shall authorize or allow any person who does not hold a certificate issued pursuant to subsection (2) of this section to have primary responsibility for the operation of any sewage system or portion thereof.
  4. The cabinet, with the advice of the board of certification, may classify all sewage systems and portions thereof in the manner provided by the rules and regulations of the cabinet with regard to size, type, physical conditions affecting such systems or portions thereof, and the skill, knowledge and experience required for the operation of the system or portion thereof and restrict the application of any certificate issued pursuant to subsection (2) of this section to the operation of a sewage system or portion thereof of a specific class.
  5. Any person who has primary responsibility for the operation of a sewage system for a school shall be entitled to a limited certificate of competency for his particular system, provided he has demonstrated that he has the knowledge and experience required to operate properly the particular sewage system for which he is responsible. A limited certificate of competency so issued is not transferable to any other sewage system, nor is the period of operation under such a limited certificate eligible for consideration toward the experience requirements for a certificate of competency as provided in subsection (2) of this section.
  6. All applicants for the examination and certification for the operation of any sewage system or portion thereof, whether publicly or privately owned, shall pay a reasonable schedule of fees and charges fixed by regulation. The fees required under this section shall be payable to the cabinet.
  7. Operators shall have accumulated a minimum number of hours of appropriate board approved training set by regulation for certificate renewal. Such training shall include, but may not be limited to, correspondence courses, short courses, trade association meetings, and on-the-job training. Training hours accumulated in any given year in excess of the minimum requirement necessary for renewal may be carried forward for a period not to exceed two (2) years.
  8. The board may waive any or all of the requirements of subsection (7) of this section for all or portions of an established class of operators.

HISTORY: Enact. Acts 1972 (1st Ex. Sess.), ch. 3, § 11; 1974, ch. 74, Art. III, § 13(2); 1976, ch. 249, § 1; 1984, ch. 299, § 1, effective July 13, 1984; 1984, ch. 387, § 3, effective July 13, 1984; 2010, ch. 24, § 382, effective July 15, 2010; 2017 ch. 117, § 25, effective June 29, 2017.

Compiler’s Notes.

This section was formerly compiled as KRS 224.135 .

Research References and Practice Aids

Kentucky Law Journal.

Woodroof, Pollution Control, Present and Potential: A Jurisprudential Evaluation of Cost Allocation as an Alternative, 61 Ky. L.J. 22 (1972).

224.73-120. Users of publicly owned treatment works required to monitor and report on introduction of incompatible pollutants into the works.

The cabinet is authorized to apply and to enforce against users of publicly owned treatment works the requirements of monitoring, record keeping and reporting, effluent limitations and pretreatment standards for the introduction into such treatment works of pollutants which interfere with, pass through, or otherwise are incompatible with such treatment works. The cabinet may promulgate such rules and regulations as are necessary to implement this section.

History. Enact. Acts 1978, ch. 257, § 5, effective June 17, 1978.

Compiler’s Notes.

This section was formerly compiled as KRS 224.140 .

224.73-130. Definitions for KRS 224.73-130 to 224.73-150.

As used in KRS 224.73-130 to 224.73-150 :

  1. “Privately owned small wastewater treatment plant” or “plant” means all or any part of a sewage treatment facility, including the collection system that:
    1. Is designed to intercept, transport, and treat sewage before discharging it into the environment;
    2. Is not operated by a local government, special district, or governmental entity, including but not limited to a city, county, charter county, urban-county government, consolidated local government, unified local government, or board or commission operating under KRS Chapters 65, 67, 74, 76, or 220;
    3. Is not an industrial wastewater treatment plant;
    4. Is not a system designed to serve an individual household;
    5. Is not an agricultural operation; and
    6. Serves a localized customer base such as neighborhoods, developments, apartment or condominium complexes, businesses, or manufactured housing or mobile home parks; and
  2. “Sewage” means the water-carried human or animal wastes from residences, buildings, or other places, together with industrial wastes or underground, surface, storm or other water as may be present.

HISTORY: 2018 ch. 196, § 1, effective July 14, 2018.

224.73-140. Administrative regulations regarding renewal of discharge permit to owner of privately owned small wastewater treatment plant.

The cabinet shall promulgate administrative regulations in accordance with KRS Chapter 13A regarding the issuance or the renewal of a discharge permit under KRS 224.10-100 to an owner of a privately owned small wastewater treatment plant that require a plant’s owner to:

  1. Obtain and maintain a contract for insurance, or a financial instrument such as a letter of credit, for:
    1. Fire and extended coverage in an amount deemed sufficient by the cabinet to fully replace the plant or otherwise restore service to the customers served by the plant in the event the plant becomes nonfunctional due to risks such as fire or other natural disasters; and
    2. Commercial general liability coverage and products and completed operations coverage in an amount deemed sufficient by the cabinet to address potential general liabilities or products and completed operations liabilities;
  2. Implement an asset management plan, the requirements of which shall be developed by the cabinet using nationally known or recognized best practices, methodologies, and guidelines;
  3. Maintain adequate revenue to ensure continuity of service and the ability of the owner to:
    1. Operate and maintain the plant in a manner to meet all applicable state and federal laws during operation; and
    2. Implement the asset management plan designated for the plant; and
  4. Conduct a structural analysis of the plant, as necessary.

HISTORY: 2018 ch. 196, § 2, effective July 14, 2018.

224.73-150. Conditions for appointment of receiver to manage and operate privately owned small wastewater treatment plan — Attachment and control of plant’s assets — Hearings, permitted actions, and orders.

  1. The cabinet may seek to have a receiver appointed to assume the management and operation of a privately owned small wastewater treatment plant if the plant:
    1. Presents a threat or likely threat to the public health or the environment;
    2. Is in substantial and recurring noncompliance with its discharge permit as issued by the cabinet; or
    3. The owner is unable or unwilling to operate or to provide for the proper operation of the plant.
  2. If the cabinet, after following the procedures and conducting a hearing in accordance with KRS 224.10-410 or 224.10-420 and the administrative regulations promulgated thereunder, enters an order in which it finds that a plant meets any of the conditions of subsection (1) of this section, and after notification to the Public Service Commission if the plant is a utility as defined in KRS 278.010(3)(f), the cabinet may bring an action in the Franklin Circuit Court for an order attaching the assets of the plant and placing those assets under the sole control and responsibility of a receiver.
  3. Within twenty (20) days after commencing an action in Franklin Circuit Court, the cabinet shall file a certified copy of the record of the administrative proceeding in which the secretary of the cabinet entered his or her findings.
  4. During the pendency of any receivership, the receiver may bring or defend any cause of action on behalf of the owner of the plant as the court may authorize, including an action to raise rates or institute surcharges as necessary to properly operate, maintain, restore, and rehabilitate the plant and to pay the costs, fees, and expenses of the receiver.
  5. The receiver shall control and manage the assets and operations of the plant until the Franklin Circuit Court, after reasonable notice and hearing, orders the receiver to return control of those assets to the plant’s owner or to liquidate and transfer those assets as provided by law.
    1. Notwithstanding subsection (2) of this section, the cabinet, after notification to the Public Service Commission if the plant is a utility as defined in KRS 278.010(3)(f), may petition the Franklin Circuit Court to appoint a temporary receiver to operate and manage the assets of the plant meeting the conditions set out in subsection (1) of this section. (6) (a) Notwithstanding subsection (2) of this section, the cabinet, after notification to the Public Service Commission if the plant is a utility as defined in KRS 278.010(3)(f), may petition the Franklin Circuit Court to appoint a temporary receiver to operate and manage the assets of the plant meeting the conditions set out in subsection (1) of this section.
    2. After notice to the owner of the plant, and after notification to the Public Service Commission if the plant is a utility as defined in KRS 278.010(3)(f), the court may grant a petition for the appointment of a temporary receiver, on terms and conditions as it deems appropriate, upon a showing by a preponderance of the evidence:
      1. That the plant is an immediate threat to the public health, safety, or the environment;
      2. There is an immediate threat to the continued availability of service to the customers served by the plant; and
      3. That the delay required for the cabinet to follow the procedures and conduct a hearing in accordance with subsection (2) of this section would place the public health or safety, the environment, or continued wastewater treatment service at unnecessary risk.

HISTORY: 2018 ch. 196, § 3, effective July 14, 2018.

SUBCHAPTER 80. Environmental Covenants

224.80-100. Definitions for subchapter.

As used in this subchapter:

  1. “Activity and use limitations” means restrictions or obligations created under KRS 224.80-100 to 224.80-210 .
  2. “Applicant” means a person applying to the cabinet for approval of an environmental covenant.
  3. “Cabinet” means the Energy and Environment Cabinet.
  4. “Common interest community” means a condominium, cooperative, or other real property owned by a person as part of a parcel of real property for which there is an obligation to pay property taxes, insurance premiums, or maintenance, or to make improvements to the real property as described and established in a recorded environmental covenant.
  5. “Environmental covenant” means a servitude arising under an environmental response project that imposes activity and use limitations.
  6. “Environmental response project” means a plan or work performed for the environmental remediation of real property conducted:
    1. Under a federal or state program governing environmental remediation of real property including programs established pursuant to KRS 224.1-400 , 224.1-405 , 224.46-530 , and 224.1-450 to 224.1-465 ;
    2. Incident to closure of a solid or hazardous waste management unit, if the closure is conducted with approval of the cabinet; or
    3. Under a Commonwealth voluntary cleanup program authorized under KRS 224.1-510 to 224.1-532 .
  7. “Holder” means the grantee of an environmental covenant.
  8. “Indexing” means the practice or method kept by a county clerk’s office to record legal property transactions.
  9. “Interest” means all or part of a legal equitable claim to a right in real property which shall include both possessory and nonpossessory interests.
  10. “Owner” means a person that owns a fee simple interest or any other interest in real property that is subject to an environmental covenant.
  11. “Person” shall have the meaning specified in KRS 224.1-010 (16).
  12. “Public notice” means the publication of required information in a daily or weekly newspaper of major circulation located in the county or counties where the property subject to the proposed environmental covenant is located. If there is no daily or weekly newspaper of major circulation in the county or counties where the property is located, public notice shall mean publication of required information in a daily or weekly newspaper of major circulation in a county adjacent to the county or counties where the property is located.
  13. “Subordination agreement” means an agreement affecting priority of interests in a real property that is subject to an environmental covenant.
  14. “Servitude” means a right, burden, or restriction on the use of real property that passes from the current owner or tenant to any owners or tenants in succession.

HISTORY: Enact. Acts 2005, ch. 92, § 1, effective June 20, 2005; 2010, ch. 24, § 383, effective July 15, 2010; 2017 ch. 117, § 26, effective June 29, 2017.

Compiler’s Notes.

This section is set out above to reflect a correction to the section reference appearing in subsection (6) from 224.01-400 to 224.1-400 , 224.01-405 to 224.1-405 , “224.01-450 to 224.01-465 ” to “224.1-450 to 224.1-465 ” and “224.01-510 to 224.01-532 ” to “224.1-510 to 224.1-532 ” due to renumbering by the state reviser effective in 2013.

224.80-110. Environmental covenants and corrective action plans — Powers of cabinet to review, approve, or deny — Existing rights, duties, and protections not affected by environmental covenants — Definition of “holder” — When covenant deemed created.

  1. Any person that owns an interest in a real property subject to an environmental response project as defined in KRS 224.80-100 (6) as of July 1, 2005, may utilize an environmental covenant as part of a corrective action plan submitted to the cabinet for review and approval.
  2. The cabinet shall review and shall approve or deny the environmental covenant, or request additional information as part of its review of a corrective action plan submitted pursuant to KRS 224.1-400 , 224.1-405 , 224.46-530 and 224.1-450 to 224.1-465 . The cabinet shall review the environmental covenant and determine whether:
    1. The real property is eligible for an environmental covenant under KRS 224.80-100 to 224.80-210 ;
    2. The environmental covenant is complete;
    3. The environmental covenant is protective of human health, safety, and the environment under KRS 224.1-400 , 224.1-405 , 224.1-510 to 224.1-532 , 224.46-530 , and 224.1-450 to 224.1-465 ; and
    4. The person proposing the environmental covenant has published, through public notice, a notification identifying by legal description and address the property that is being considered for an environmental covenant, the intent to place an environmental covenant on the property, and a list of interest holders of record.
  3. In addition to other conditions for the approval of an environmental covenant, the cabinet may require those persons specified by the cabinet who have an interest in the real property to sign the covenant.
  4. The cabinet may deny an environmental covenant for reasonable grounds, including a determination that the covenant does not protect human health or the environment. The cabinet shall specify in writing, the grounds for denying the environmental covenant.
  5. Any person, including the cabinet, that signs an environmental covenant or amendment thereto shall be required to fulfill the obligations and responsibilities prescribed to him or her in the environmental covenant or amendment. The cabinet’s act of signing the environmental covenant shall be deemed an approval of an environmental covenant. Nothing contained in this subsection shall modify or deny any existing duties, rights, or protections granted under law, except as explicitly and legally provided for in the environmental covenant.
  6. If the environmental covenant is approved and signed in accordance with this subchapter, those parties meeting the requirements in subsection (7) of this section shall be deemed holders. The environmental covenant shall be deemed created.
  7. A holder may be:
    1. Any person, including a person that owns an interest in the real property; or
    2. A governmental body empowered to hold an interest in real property under the laws of this state or of the United States.

History. Enact. Acts 2005, ch. 92, § 2, effective June 20, 2005.

Compiler’s Notes.

This section is set out above to reflect a correction to the section reference appearing in subsection (2) from 224.01-400 to 224.1-400 , 224.01-405 to 224.1-405 , “224.01-450 to 224.01-465 ” to “224.1-450 to 224.1-465 ” and “224.01-510 to 224.01-532 ” to “224.1-510 to 224.1-532 ” due to renumbering by the state reviser effective in 2013.

224.80-120. Identification of holders under covenant — Obligations of holders and of cabinet — Priority of interests in real property existing at the time of creation of an environmental covenant — Subordination agreements.

  1. An environmental covenant may identify more than one (1) holder, and the interest of a holder is an interest in real property.
  2. A right of the cabinet pursuant to KRS 224.80-100 to 224.80-210 or under an environmental covenant shall not be deemed an interest in real property. The obligations imposed on a property and holders of a property subject to an environmental covenant shall be considered as ongoing obligations in furtherance of protection of public health and the environment and are not intended to be obligations that are reducible to a monetary claim or dischargeable under bankruptcy law.
  3. The following rules apply to persons with interests in real property in existence at the time an environmental covenant is created or modified:
    1. A person with an interest that has priority under other law shall not be affected by an environmental covenant, except when the owner of the interest is a party to the covenant or subordinates his or her interest to the environmental covenant in a subordination agreement.
    2. Nothing contained in KRS 224.80-100 to 224.80-210 shall require a person that owns a prior interest to subordinate that interest to an environmental covenant or to agree to be bound by an environmental covenant.
    3. The cabinet shall have the authority to disapprove an environmental covenant if all prior interests to the real property are not subordinated to the environmental covenant.
    4. A subordination agreement may be contained in the environmental covenant covering real property or in a separate record. If the environmental covenant covers commonly owned property in a common interest community, the record may be signed by any person authorized by the governing board of the owners’ association.
    5. A person’s act of subordinating his or her prior interest in a real property to an environmental covenant shall affect the priority of that person’s interest. The act of subordinating a prior interest in a real property subject to an environmental covenant shall not be presumed to impose any affirmative obligation on the person with respect to the environmental covenant.

History. Enact. Acts 2005, ch. 92, § 3, effective June 20, 2005.

224.80-130. Information, restrictions, and requirements to be included in environmental covenant.

  1. An environmental covenant shall:
    1. State that the instrument is an environmental covenant executed pursuant to KRS 224.80-100 to 224.80-210 ;
    2. Contain a legal description of the real property and a metes and bounds description of the portion of the real property;
    3. Describe the activity and use limitations imposed on the real property;
    4. Identify every holder;
    5. Be signed by the cabinet, by every holder, and, unless waived by the cabinet, by every owner of an interest in the real property subject to the environmental covenant; and
    6. Identify the name and location of any administrative record for the environmental response project.
  2. In addition to the information required under subsection (1) of this section, an environmental covenant may contain other information, restrictions, and requirements agreed to by the persons who signed it, including:
    1. Requirements for notice following transfer of a specified interest in, or concerning proposed changes in use of, application for building permits for, or proposals for any site work affecting the contamination on, the property subject to the covenant;
    2. Requirements for periodic reporting describing compliance with the covenant;
    3. Rights of access to the property granted in connection with implementation or enforcement of the covenant;
    4. A brief narrative description of the contamination and remedy, including the contaminants of concern, the pathways of exposure, limits on exposure, and the location and extent of the contamination;
    5. Limitation on amendment or termination of the covenant in addition to those contained in KRS 224.80-180 and 224.80-190 ; and
    6. Rights of the holder in addition to the holder’s right to enforce the covenant pursuant to KRS 224.80-200 .

History. Enact. Acts 2005, ch. 92, § 4, effective June 20, 2005.

224.80-140. Environmental covenant to run with the land — When covenants to be deemed valid and enforceable — Validity of instruments recorded before June 20, 2005.

  1. An environmental covenant in compliance with the provisions of KRS 224.80-100 to 224.80-210 shall run with the land.
  2. An environmental covenant that is otherwise effective shall be deemed valid and shall be enforceable even if:
    1. The environmental covenant is not appurtenant to an interest in real property;
    2. The environmental covenant can be or has been assigned to a person other than the original holder;
    3. The environmental covenant is not of a character that has been recognized traditionally in common law;
    4. The environmental covenant imposes a negative burden;
    5. The environmental covenant imposes an affirmative obligation on a person having an interest in the real property or on the holder;
    6. The benefit or burden does not touch or concern real property;
    7. There is no privity of estate or contract;
    8. The holder dies, ceases to exist, resigns, or is replaced; or
    9. The owner of an interest subject to the environmental covenant and the holder are the same person.
  3. An instrument that creates restrictions or obligations with respect to real property that would qualify as activity and use limitations except for the fact that the instrument was recorded before June 20, 2005, shall not be invalidated or deemed unenforceable due to:
    1. Any of the limitations on enforcement of interests described in paragraphs (a) to (i) of subsection (2) of this section; or
    2. The identification of the instrument as an easement, servitude, deed restriction, or other interest.
  4. KRS 224.80-100 to 224.80-210 shall not invalidate or render unenforceable any interest, whether designated as an environmental covenant or other interest, that is otherwise enforceable under the law.

History. Enact. Acts 2005, ch. 92, § 5, effective June 20, 2005.

224.80-150. Environmental covenant not to authorize use of real property otherwise prohibited by zoning, prior recorded instruments, or other applicable law — Permissible restriction on uses of real property.

KRS 224.80-100 to 224.80-210 shall not be construed to authorize a use of real property that is otherwise prohibited by zoning, by law other than is prescribed for the regulating of real property in KRS 224.80-100 to 224.80-210 , or by a recorded instrument that has priority over the environmental covenant. An environmental covenant may prohibit or restrict uses of real property authorized by zoning or by law that are not prescribed in KRS 224.80-100 to 224.80-210.

History. Enact. Acts 2005, ch. 92, § 6, effective June 20, 2005.

224.80-160. Persons to receive copy of environmental covenant.

  1. A copy of the environmental covenant shall be provided to the following persons in a manner prescribed by the cabinet:
    1. Each person signing the environmental covenant;
    2. Each person holding a recorded interest in the real property subject to the environmental covenant;
    3. Each person in possession of the real property subject to the environmental covenant;
    4. Each municipality or other unit of local government in which real property subject to the environmental covenant is located; and
    5. Any other person that the cabinet requires.
  2. An environmental covenant shall not be deemed invalid due to a failure to provide a copy of the environmental covenant to a person as required in subsection (1) of this section.

History. Enact. Acts 2005, ch. 92, § 7, effective June 20, 2005.

224.80-170. Recording of covenant, amendment, or termination.

  1. An environmental covenant and any amendment to or termination of that environmental covenant shall be recorded in the county clerk’s office in each county that contains any portion of the real property subject to the environmental covenant. For the purposes of indexing, a holder shall be treated as a grantee.
  2. Except as otherwise provided in KRS 224.80-180 (3), an environmental covenant shall be subject to the laws of the Commonwealth governing the recording and priority of interests in real property.

History. Enact. Acts 2005, ch. 92, § 8, effective June 20, 2005.

224.80-180. Covenant to exist in perpetuity except under certain circumstances — Petition to court to terminate or reduce burden of environmental covenant.

  1. An environmental covenant shall be perpetual except under the following circumstances:
    1. By its terms, the environmental covenant is limited to a specific duration or is terminated by the occurrence of a specific event;
    2. The environmental covenant is terminated pursuant to KRS 224.80-190 ;
    3. The environmental covenant is terminated by foreclosure of an interest that has priority over the environmental covenant; or
    4. The environmental covenant is terminated or modified in an eminent domain proceeding and the following conditions exist:
      1. The cabinet is a party to the eminent domain proceeding;
      2. All persons identified in KRS 224.80-190 (1) and (2) are given notice of the pendency of the eminent domain proceeding; and
      3. A court of competent jurisdiction determines, after hearing, that the termination or modification of the environmental covenant will not adversely affect human health or the environment.
  2. If the cabinet or if any holder determines that the intended benefits of an environmental covenant can no longer be realized, Franklin Circuit Court, under the doctrine of changed circumstances, in an action in which all persons identified in KRS 224.80-190 (1) and (2) have been given notice, may terminate the environmental covenant or reduce its burden on the real property subject to the environmental covenant.
  3. Except as otherwise provided in subsections (1) and (2) of this section, an environmental covenant may not be extinguished, limited, or impaired through the issuance of a tax deed, foreclosure of a tax lien, or application of the doctrine of adverse possession, prescription, abandonment, waiver, lack of enforcement, acquiescence, or a similar doctrine.

History. Enact. Acts 2005, ch. 92, § 9, effective June 20, 2005.

224.80-190. Amendment or termination of environmental covenant by consent of the parties — Assignment of holder’s rights.

  1. An environmental covenant may be amended or terminated by consent only if the amendment or termination is requested as a modification to the corrective action plan approved by the cabinet, and only if the amendment or termination is signed by:
    1. The cabinet;
    2. The current owner of the fee simple of the real property subject to the covenant;
    3. Each person that originally signed the environmental covenant or that person’s heirs, assigns, or transferees unless:
      1. The person or the person’s heirs, assigns, or transferees waived in a signed document the right to consent; or
      2. A court finds that the person no longer exists or cannot be located or identified with the exercise of reasonable diligence; and
    4. The holder, except as otherwise provided in subsection (4)(b) of this section.
  2. If an interest in real property is subject to an environmental covenant, the interest shall not be affected by an amendment of the environmental covenant unless:
    1. The current owner of the interest consents to the amendment; or
    2. The current owner of the interest has waived in a signed record the right to consent to the amendments.
  3. Except for an assignment undertaken pursuant to a governmental reorganization, assignment of an environmental covenant to a new holder shall be deemed an amendment of the environmental covenant.
  4. Except as otherwise provided in an environmental covenant:
    1. A holder may not assign its interest without consent of the other parties to the environmental covenant specified in subsection (1) of this section; and
    2. A holder may be removed and replaced by agreement of the other parties specified in subsection (1) of this section.
  5. A court of competent jurisdiction may fill a vacancy in the position of the holder.

History. Enact. Acts 2005, ch. 92, § 10, effective June 20, 2005.

224.80-200. Civil action for injunctive or other equitable relief.

  1. A civil action for injunctive or other equitable relief for violation of an environmental covenant may be brought by:
    1. A party to the environmental covenant;
    2. The cabinet;
    3. Any person to whom the environmental covenant expressly grants power to enforce;
    4. A person whose interest in the real property or whose collateral or liability may be affected by the alleged violation of the environmental covenant; or
    5. A municipality or other unit of local government in which the real property subject to the environmental covenant is located.
  2. KRS 224.80-100 to 224.80-210 shall not limit the cabinet’s exercise of regulatory authority under law with respect to an environmental response project unless the environmental covenant expressly prohibits the cabinet from undertaking specified actions.
  3. A person shall not be responsible for or subject to liability for environmental remediation solely because the person has the right to enforce an environmental covenant.

History. Enact. Acts 2005, ch. 92, § 11, effective June 20, 2005.

224.80-210. Registry of environmental covenants — Contents — Registry deemed public record.

The cabinet shall establish and maintain a registry that contains all environmental covenants and any amendments to or terminations of those environmental covenants. The registry also may contain any other information concerning environmental covenants and the real property subject to those environmental covenants that the cabinet deems appropriate. The registry shall be deemed a public record under KRS 61.872 to 61.884 .

History. Enact. Acts 2005, ch. 92, § 12, effective June 20, 2005.

SUBCHAPTER 99. Penalties

224.99-010. Penalties.

  1. Any person who violates KRS 224.10-110 (2) or (3), 224.70-110 , 224.73-120 , 224.20-050 , 224.20-110 , 224.46-580 , 224.1-400 , or who fails to perform any duties imposed by these sections, or who violates any determination, permit, administrative regulation, or order of the cabinet promulgated pursuant thereto shall be liable for a civil penalty not to exceed the sum of twenty-five thousand dollars ($25,000) for each day during which such violation continues, and in addition, may be concurrently enjoined from any violations as hereinafter provided in this section and KRS 224.99-020 .
  2. Any person who violates KRS 224.10-110 (4) or (5), or KRS 224.40-100 , 224.40-305 , or any provision of this chapter relating to noise, or who fails to perform any determination, permit, administrative regulation, or order of the cabinet promulgated pursuant thereto shall be liable for a civil penalty not to exceed the sum of five thousand dollars ($5,000) for said violation and an additional civil penalty not to exceed five thousand dollars ($5,000) for each day during which such violation continues, and in addition, may be concurrently enjoined from any violations as hereinafter provided in this section and KRS 224.99-020 .
    1. Any person who shall knowingly violate any of the provisions of this chapter relating to noise or any determination or order of the cabinet promulgated pursuant to those sections which have become final shall be guilty of a Class A misdemeanor. Each day upon which the violation occurs shall constitute a separate violation. (3) (a) Any person who shall knowingly violate any of the provisions of this chapter relating to noise or any determination or order of the cabinet promulgated pursuant to those sections which have become final shall be guilty of a Class A misdemeanor. Each day upon which the violation occurs shall constitute a separate violation.
    2. For offenses by motor vehicles, a person shall be guilty of a violation.
  3. Any person who knowingly violates KRS 224.70-110 , 224.73-120 , 224.40-100 , 224.20-110 , 224.20-050 , 224.40-305 , or 224.10-110 (2) or (3), or any determination, permit, administrative regulation, or order of the cabinet promulgated pursuant to those sections which have become final, or who knowingly provides false information in any document filed or required to be maintained under this chapter, or who knowingly renders inaccurate any monitoring device or method, or who tampers with a water supply, water purification plant, or water distribution system so as to knowingly endanger human life, shall be guilty of a Class D felony, and upon conviction thereof, shall be punished by a fine not to exceed twenty-five thousand dollars ($25,000), or by imprisonment for a term of not less than one (1) year and not more than five (5) years, or by both fine and imprisonment, for each separate violation. Each day upon which a violation occurs shall constitute a separate violation.
  4. If any person engages in generation, treatment, storage, transportation, or disposal of hazardous waste in violation of the hazardous waste management provisions of this chapter or contrary to a permit, order, or rule issued or promulgated under this chapter, or fails to provide information or to meet reporting requirements required by terms and conditions of a permit or administrative regulations promulgated pursuant to this chapter, the secretary may issue an order requiring compliance within a specified time period or may commence a civil action in a court of appropriate jurisdiction. The violator shall be liable for a civil penalty not to exceed the sum of twenty-five thousand dollars ($25,000) for each day during which the violation continues, and in addition, may be enjoined from any violations in a court of appropriate jurisdiction.
  5. Any person who knowingly is engaged in generation, treatment, storage, transportation, or disposal of hazardous waste in violation of this chapter or contrary to a permit, order, or administrative regulation issued or promulgated under this chapter, or knowingly makes a false statement, representation, or certification in an application for or form pertaining to a permit or in a notice or report required by the terms and conditions of an issued permit, shall be guilty of a Class D felony, and upon conviction thereof, shall be punished by a fine not to exceed twenty-five thousand dollars ($25,000) for each day of violation, or by imprisonment for a term of not less than one (1) year and not more than five (5) years, or by both fine and imprisonment, for each separate violation. Each day upon which a violation occurs shall constitute a separate violation.
  6. Nothing contained in subsections (4) or (5) of this section shall abridge the right of any person to recover actual compensatory damages resulting from any violation.
  7. Any person who violates any provision of this chapter to which no express penalty provision applies, except as provided in KRS 211.995 , or who fails to perform any duties imposed by those sections, or who violates any determination or order of the cabinet promulgated pursuant thereto shall be liable for a civil penalty not to exceed the sum of one thousand dollars ($1,000) for said violation and an additional civil penalty not to exceed one thousand dollars ($1,000) for each day during which the violation continues, and in addition, may be concurrently enjoined from any violations as hereinafter provided in this section and KRS 224.99-020 .
  8. The Franklin Circuit Court shall hold concurrent jurisdiction and venue of all civil, criminal, and injunctive actions instituted by the cabinet or by the Attorney General on its behalf for the enforcement of the provisions of this chapter or the orders and administrative regulations of the cabinet promulgated pursuant thereto.
  9. Any person who deposits leaves, clippings, prunings, garden refuse, or household waste materials in any litter receptacle, except with permission of the owner of the receptacle, or who places litter into a receptacle in such a manner that the litter may be carried away or deposited by the elements upon any property or water not owned by him is guilty of a Class B misdemeanor.
  10. In addition to or in lieu of the penalties set forth in this section or in KRS Chapters 532 and 534, any person found guilty of a second or subsequent offense related to littering may be ordered by the court to pick up litter for not less than four (4) hours.
  11. Any person who violates KRS 224.20-300 , 224.20-310 , any other provision of this chapter, or any determination, permit, administrative regulation, or order of the cabinet relating to the Asbestos Hazard Emergency Response Act of 1986 (AHERA), Public Law 99-519, as amended, shall be liable to the Commonwealth of Kentucky for a civil penalty in an amount not to exceed twenty-five thousand dollars ($25,000) for each violation. Each day a violation continues shall, for purposes of this subsection, constitute a separate violation of provisions of this chapter relating to AHERA.
  12. A violation of KRS 224.50-413 shall be subject to a fifty dollar ($50) fine for each day the violation continues.
  13. Any person who removes a methamphetamine contamination notice posted under  KRS 224.1-410 (9) contrary to the administrative regulations governing methamphetamine contamination notice removal shall be guilty of a Class A misdemeanor.
  14. Any person who leases, rents, or sells a property that has been determined to be contaminated property under KRS 224.1-410 (4) to a lessee, renter, or buyer without giving written notice that the property is a contaminated property pursuant to KRS 224.1-410 (10) shall be guilty of a Class D felony.

History. Enact. Acts 1974, ch. 355, §§ 8, 10; 1978, ch. 113, § 12, effective June 17, 1978; 1978, ch. 119, § 14, effective June 17, 1978; 1978, ch. 257, § 3, effective June 17, 1978; 1980, ch. 264, § 12, effective July 15, 1980; 1982, ch. 22, § 2, effective July 15, 1982; 1982, ch. 74, § 19, effective July 15, 1982; 1982, ch. 145, § 2, effective July 15, 1982; 1984, ch. 369, § 1, effective July 13, 1984; 1986, ch. 331, § 39, effective July 15, 1986; 1988, ch. 413, § 3, effective April 8, 1988; 1990, ch. 84, § 3, effective July 13, 1990; 1990, ch. 434, § 1, effective July 13, 1990; 1992, ch. 204, § 3, effective July 14, 1992; 1992, ch. 463, § 25, effective July 14, 1992; 1994, ch. 162, § 2, effective July 15, 1994; 1994, ch. 403, § 2, effective July 15, 1994; 2008, ch. 161, § 2, effective July 15, 2008.

Compiler’s Notes.

The Asbestos Hazard Emergency Response Act of 1986, referred to in subsection (12) of this section, is compiled primarily as 15 USCS § 2641 et seq.

This section was formerly compiled as KRS 224.994 .

This section is set out above to reflect a correction to the section reference appearing in subsection (1) from 224.01-400 to 224.1-400 , subsection (14) from 224.01-410 (9) to 224.1-410 (9), and subsection (15) from 224.01-410 (4) to 224.1-410 (4) and 224.01-410(10) to 224.1-410(10) due to renumbering by the state reviser effective in 2013.

NOTES TO DECISIONS

1.Constitutionality.
2.— Concurrent Jurisdiction.

Concurrent criminal jurisdiction provided by subsection (9) of this section is violative of Ky. Const., § 11 in situations where there is no valid connection between the criminal activity and Franklin County; judgments asserting defendant’s entitlement to venue in county where dumping violations of KRS 224.40-100 (2) and 224.40-305 occurred were affirmed. Commonwealth v. Crider & Rogers, 929 S.W.2d 179, 1996 Ky. LEXIS 77 ( Ky. 1996 ).

3.Consent Decree.

Metropolitan sewer district was not entitled to employ the dispute resolution provision of a consent decree arising from an action under 33 USCS § 1319 of the Clean Water Act and KRS 224.99-010 and 224.70-110 , because the U.S. Environmental Protection Agency’s request for information under 33 USCS § 1318 did not generate a dispute arising under or with respect to the consent decree. Kentucky v. Louisville & Jefferson County Metro. Sewer Dist., 542 F. Supp. 2d 668, 2008 U.S. Dist. LEXIS 11319 (W.D. Ky. 2008 ).

Research References and Practice Aids

Cross-References.

Designation of offenses; penalties, see KRS 532.020 .

Northern Kentucky Law Review.

Elliot, Kentucky’s Environmental Self-Audit Privilege: State Protection Or Increased Federal Scrutiny?, 23 N. Ky. L. Rev. 1 (1995).

224.99-010. Penalties.

  1. Any person who violates KRS 224.10-110 (2) or (3), 224.70-110 , 224.73-120 , 224.20-050 , 224.20-110 , 224.46-580 , 224.1-400 , or who fails to perform any duties imposed by these sections, or who violates any determination, permit, administrative regulation, or order of the cabinet promulgated pursuant thereto shall be liable for a civil penalty not to exceed the sum of twenty-five thousand dollars ($25,000) for each day during which such violation continues, and in addition, may be concurrently enjoined from any violations as hereinafter provided in this section and KRS 224.99-020 .
  2. Any person who violates KRS 224.10-110 (4) or (5), or KRS 224.40-100 , 224.40- 305, or any provision of this chapter relating to noise, or who fails to perform any determination, permit, administrative regulation, or order of the cabinet promulgated pursuant thereto shall be liable for a civil penalty not to exceed the sum of five thousand dollars ($5,000) for said violation and an additional civil penalty not to exceed five thousand dollars ($5,000) for each day during which such violation continues, and in addition, may be concurrently enjoined from any violations as hereinafter provided in this section and KRS 224.99-020 .
    1. Any person who shall knowingly violate any of the provisions of this chapter relating to noise or any determination or order of the cabinet promulgated pursuant to those sections which have become final shall be guilty of a Class A misdemeanor. Each day upon which the violation occurs shall constitute a separate violation. (3) (a) Any person who shall knowingly violate any of the provisions of this chapter relating to noise or any determination or order of the cabinet promulgated pursuant to those sections which have become final shall be guilty of a Class A misdemeanor. Each day upon which the violation occurs shall constitute a separate violation.
    2. For offenses by motor vehicles, a person shall be guilty of a violation.
  3. Any person who knowingly violates KRS 224.70-110 , 224.73-120 , 224.40-100 , 224.20-110 , 224.20-050 , 224.40-305 , or 224.10-110 (2) or (3), or any determination, permit, administrative regulation, or order of the cabinet promulgated pursuant to those sections which have become final, or who knowingly provides false information in any document filed or required to be maintained under this chapter, or who knowingly renders inaccurate any monitoring device or method, or who tampers with a water supply, water purification plant, or water distribution system so as to knowingly endanger human life, shall be guilty of a Class D felony, and upon conviction thereof, shall be punished by a fine not to exceed twenty-five thousand dollars ($25,000), or by imprisonment for a term of not less than one (1) year and not more than five (5) years, or by both fine and imprisonment, for each separate violation. Each day upon which a violation occurs shall constitute a separate violation.
  4. If any person engages in generation, treatment, storage, transportation, or disposal of hazardous waste in violation of the hazardous waste management provisions of this chapter or contrary to a permit, order, or rule issued or promulgated under this chapter, or fails to provide information or to meet reporting requirements required by terms and conditions of a permit or administrative regulations promulgated pursuant to this chapter, the secretary may issue an order requiring compliance within a specified time period or may commence a civil action in a court of appropriate jurisdiction. The violator shall be liable for a civil penalty not to exceed the sum of twenty-five thousand dollars ($25,000) for each day during which the violation continues, and in addition, may be enjoined from any violations in a court of appropriate jurisdiction.
  5. Any person who knowingly is engaged in generation, treatment, storage, transportation, or disposal of hazardous waste in violation of this chapter or contrary to a permit, order, or administrative regulation issued or promulgated under this chapter, or knowingly makes a false statement, representation, or certification in an application for or form pertaining to a permit or in a notice or report required by the terms and conditions of an issued permit, shall be guilty of a Class D felony, and upon conviction thereof, shall be punished by a fine not to exceed twenty-five thousand dollars ($25,000) for each day of violation, or by imprisonment for a term of not less than one (1) year and not more than five (5) years, or by both fine and imprisonment, for each separate violation. Each day upon which a violation occurs shall constitute a separate violation.
  6. Nothing contained in subsections (4) or (5) of this section shall abridge the right of any person to recover actual compensatory damages resulting from any violation.
  7. Any person who violates any provision of this chapter to which no express penalty provision applies, except as provided in KRS 211.995 , or who fails to perform any duties imposed by those sections, or who violates any determination or order of the cabinet promulgated pursuant thereto shall be liable for a civil penalty not to exceed the sum of one thousand dollars ($1,000) for said violation and an additional civil penalty not to exceed one thousand dollars ($1,000) for each day during which the violation continues, and in addition, may be concurrently enjoined from any violations as hereinafter provided in this section and KRS 224.99-020 .
  8. The Franklin Circuit Court shall hold concurrent jurisdiction and venue of all civil, criminal, and injunctive actions instituted by the cabinet or by the Attorney General on its behalf for the enforcement of the provisions of this chapter or the orders and administrative regulations of the cabinet promulgated pursuant thereto.
  9. Any person who deposits leaves, clippings, prunings, garden refuse, or household waste materials in any litter receptacle, except with permission of the owner of the receptacle, or who places litter into a receptacle in such a manner that the litter may be carried away or deposited by the elements upon any property or water not owned by him is guilty of a Class B misdemeanor. Penalties imposed under this subsection shall be, when collected, transferred to the county treasurer where the offense occurred and placed into a fund for solid waste cleanup. This subsection shall not be construed to divert any other fines assessed and collected by the cabinet or funds available to the cabinet for the purpose of remediation of open dumps.
  10. In addition to or in lieu of the penalties set forth in this section or in KRS Chapters 532 and 534, any person found guilty of a second or subsequent offense related to littering may be ordered by the court to pick up litter for not less than four (4) hours.
  11. Any person who violates KRS 224.20-300 , 224.20-310 , any other provision of this chapter, or any determination, permit, administrative regulation, or order of the cabinet relating to the Asbestos Hazard Emergency Response Act of 1986 (AHERA), Public Law 99-519, as amended, shall be liable to the Commonwealth of Kentucky for a civil penalty in an amount not to exceed twenty-five thousand dollars ($25,000) for each violation. Each day a violation continues shall, for purposes of this subsection, constitute a separate violation of provisions of this chapter relating to AHERA.
  12. A violation of KRS 224.50-413 shall be subject to a fifty dollar ($50) fine for each day the violation continues.
  13. Any person who removes a methamphetamine contamination notice posted under KRS 224.1-410 (9) contrary to the administrative regulations governing methamphetamine contamination notice removal shall be guilty of a Class A misdemeanor.
  14. Any person who leases, rents, or sells a property that has been determined to be contaminated property under KRS 224.1-410 (4) to a lessee, renter, or buyer without giving written notice that the property is a contaminated property pursuant to KRS 224.1-410 (10) shall be guilty of a Class D felony.

HISTORY: Enact. Acts 1974, ch. 355, §§ 8, 10; 1978, ch. 113, § 12, effective June 17, 1978; 1978, ch. 119, § 14, effective June 17, 1978; 1978, ch. 257, § 3, effective June 17, 1978; 1980, ch. 264, § 12, effective July 15, 1980; 1982, ch. 22, § 2, effective July 15, 1982; 1982, ch. 74, § 19, effective July 15, 1982; 1982, ch. 145, § 2, effective July 15, 1982; 1984, ch. 369, § 1, effective July 13, 1984; 1986, ch. 331, § 39, effective July 15, 1986; 1988, ch. 413, § 3, effective April 8, 1988; 1990, ch. 84, § 3, effective July 13, 1990; 1990, ch. 434, § 1, effective July 13, 1990; 1992, ch. 204, § 3, effective July 14, 1992; 1992, ch. 463, § 25, effective July 14, 1992; 1994, ch. 162, § 2, effective July 15, 1994; 1994, ch. 403, § 2, effective July 15, 1994; 2008, ch. 161, § 2, effective July 15, 2008; 2021 ch. 137, § 4.

224.99-020. Action to recover penalties and costs — Injunctive relief.

  1. It shall be the duty of the cabinet’s Office of Legal Services, or upon the secretary’s request, of the Attorney General, to institute an action for the recovery of any penalties and costs otherwise authorized in this chapter, and to bring an action for an injunction against any person violating or threatening to violate any provision of this chapter, or any administrative regulation, order, or determination of the cabinet promulgated pursuant thereto. In any such action any findings of the cabinet shall be prima facie evidence of the fact or facts found therein.
  2. Nothing contained in this chapter shall abridge the right of any person to recover actual compensatory damages resulting from any violation of this chapter.

History. Enact. Acts 1974, ch. 355, § 9; 1982, ch. 74, § 20, effective July 15, 1982; 1992, ch. 215, § 6, effective July 14, 1992; 1996, ch. 360, § 3, effective July 15, 1996.

Compiler’s Notes.

This section was formerly compiled as KRS 224.995 .

224.99-030. Civil penalty.

Any applicant or certificate holder who fails to provide the information required in KRS 224.01-310 or falsifies such information shall be liable for a civil penalty of not to exceed the sum of one thousand dollars ($1,000). The penalty shall be recoverable in an action brought in the name of the Commonwealth of Kentucky by the cabinet, or upon the secretary’s request, by the Attorney General.

History. Enact. Acts 1974, ch. 137, § 6; 1976, ch. 289, § 3; 1990, ch. 399, § 6, effective July 13, 1990; 1996, ch. 360, § 4, effective July 15, 1996; 2010, ch. 24, § 384, effective July 15, 2010.

Compiler’s Notes.

This section was formerly compiled as KRS 224.997 .

CHAPTER 224A Kentucky Infrastructure Authority

224A.010. Definitions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 329, § 1; 1974, ch. 336, § 1; 1984, ch. 216, § 9, effective July 13, 1984) was repealed by Acts 1988, ch. 124, § 17, effective March 31, 1988.

224A.011. Definitions for chapter.

As used in this chapter, unless the context requires otherwise:

  1. “Administrative fee” means a fee assessed and collected by the authority from borrowers and applicants under assistance agreements, to be used for operational expenses of the authority;
  2. “Applicable interest rate” means the rate of interest which shall be used as part of the repayment criteria for an assistance agreement between a governmental agency and the authority, and shall be determined by the authority pertinent to the source of funds from which the assistance agreement is funded;
  3. “Applicant” means a governmental agency or private sector entity that has submitted an application to the authority for a grant from the broadband deployment fund;
  4. “Application” means an application submitted by an applicant for a grant from the broadband deployment fund;
  5. “Assistance agreement” means the agreement to be made and entered into by and between a governmental agency or a private entity and the authority, as authorized by this chapter, providing for a lease, loan, services, or grant to a governmental agency or a private entity or for the purchase of obligations issued by the governmental agency, and for the repayment thereof to the authority by the governmental agency or a private entity;
  6. “Authority” means the Kentucky Infrastructure Authority, which is created by this chapter;
  7. “Authority revenues” means the totality of all:
    1. Service charges;
    2. Utility tax receipts, to the extent not otherwise committed and budgeted by the authority during any fiscal period of the authority;
    3. Any gifts, grants, or loans received, to the extent not otherwise required to be applied;
    4. Any and all appropriations made to the authority by the General Assembly of the Commonwealth of Kentucky, to the extent not otherwise required to be applied;
    5. All moneys received in repayment of and for interest on any loans made by the authority to a governmental agency, except as provided in KRS 224A.111 , 224A.1115 , and 224A.112 , or as principal of and interest on any obligations issued by a governmental agency and purchased by the authority, or as receipts under any assistance agreement;
    6. The proceeds of bonds or long-term debt obligations of governmental agencies pledged to the payment of bond anticipation notes issued by the authority on behalf of the said governmental agency to provide interim construction financing; and
    7. Payments under agreements with any agencies of the state and federal government;
  8. “Borrower or borrowing entity” means any agency of the state or its political subdivisions, any city, or any special district created under the laws of the state acting individually or jointly under interagency or interlocal cooperative agreements to enter into assistance agreements with the authority;
  9. “Broadband” means any wireline or fixed terrestrial technology having a capacity to transmit data from or to the Internet with a minimum speed of twenty-five (25) megabits per second downstream and three (3) megabits per second upstream as defined by the Federal Communications Commission or the United States Department of Agriculture and any amendments to those definitions. If the agencies use different speed definitions, the faster speed definition shall apply to KRS 224A.110 , 224A.112 , and 224A.1121 ;
  10. “Broadband deployment fund” means a fund to assist with the construction, development, or improvement of broadband infrastructure, broadband services, or technologies that constitute a part of, or are related to, broadband infrastructure or broadband services, to provide for broadband service in underserved or unserved areas of the Commonwealth;
  11. “Broadband deployment project” means a proposed deployment of broadband service infrastructure set forth in an application for grant funding under KRS 224A.112 ;
  12. “Broadband deployment project area” means a geographic area determined by census block or shapefile geospatial data for which grant funding has been authorized under this section and KRS 224A.110 , 224A.112 , and 224A.1121 ;
  13. “Census block” means the smallest geographic unit used by the United States Census Bureau that is reported on the Federal Communications Commission (FCC) Form 477 relating to fixed broadband deployment data;
  14. “Community flood damage abatement project” means any structural or nonstructural study, plan, design, construction, development, improvement, or other activity to provide for flood control;
  15. “Construction” means and includes but is not limited to:
    1. Preliminary planning to determine the economic and engineering feasibility of infrastructure projects, the engineering, architectural, legal, fiscal, and economic investigations, and studies necessary thereto, and surveys, designs, plans, working drawings, specifications, procedures, and other actions necessary to the construction of infrastructure or solid waste projects;
    2. The erection, building, acquisition, alteration, remodeling, improvement, or extension of infrastructure or solid waste projects; and
    3. The inspection and supervision of the construction of infrastructure or solid waste projects and all costs incidental to the acquisition and financing of same. This term shall also relate to and mean any other physical devices or appurtenances in connection with, or reasonably attendant to, infrastructure or solid waste projects;
  16. “Dams” means any artificial barrier, including appurtenant works, which does or can impound or divert water, and which either:
    1. Is or will be twenty-five (25) feet or more in height from the natural bed of the stream or watercourse at the downstream toe of the barrier, as determined by the Energy and Environment Cabinet; or
    2. Has or will have an impounding capacity at maximum water storage elevation of fifty (50) acre feet or more;
  17. “Distribution facilities” means all or any part of any facilities, devices, and systems used and useful in obtaining, pumping, storing, treating, and distributing water for agricultural, industrial, commercial, recreational, public, and domestic use;
  18. “Energy and Environment Cabinet” means the Kentucky Energy and Environment Cabinet, or its successor, said term being meant to relate specifically to the state agency which is designated as the water pollution agency for the Commonwealth of Kentucky, for purposes of the federal act;
  19. “Federal act” means the Federal Clean Water Act (33 U.S.C. secs. 1251 et seq.) as said federal act may be amended from time to time in the future, or any other enactment of the United States Congress providing funds that may assist in carrying out the purposes of the authority;
  20. “Federally assisted wastewater revolving fund” means that fund which will receive federal and state funds or the proceeds from the sale of revenue bonds of the authority for the purpose of providing loans to finance construction of publicly owned treatment works as defined in Section 212 of the federal act and for the implementation of a management program established under Section 319 of the federal act and for the development and implementation of a conservation and management plan under Section 320 of the federal act;
  21. “Governmental agency” means any incorporated city or municipal corporation, or other agency, or unit of government within or a department or a cabinet of the Commonwealth of Kentucky, now having or hereafter granted, the authority and power to finance, acquire, construct, or operate infrastructure or solid waste projects. This definition shall specifically apply but not by way of limitation to incorporated cities; counties, including any counties containing a metropolitan sewer district; sanitation districts; water districts; water associations if these associations are permitted to issue interest-bearing obligations which interest would be excludable from gross income under Section 103 of the Internal Revenue Code of 1986 as amended; sewer construction districts; metropolitan sewer districts; sanitation taxing districts; a regional wastewater commission established under KRS 65.8901 to 65.8923 ; and any other agencies, commissions, districts, or authorities (either acting alone, or in combination with one another in accordance with any regional or area compact, or intergovernmental cooperative agreements), now or hereafter established in accordance with the laws of the Commonwealth of Kentucky having and possessing the described powers described in this subsection;
  22. “Industrial waste” means any liquid, gaseous, or solid waste substances resulting from any process of industry, manufacture, trade, or business, or from the mining or taking, development, processing, or recovery of any natural resources, including heat and radioactivity, together with any sewage as is present therein, which pollutes the waters of the state, and specifically, but not by way of limitation, means heat or thermal differentials created in the waters of the state by any industrial processing, generating, or manufacturing processes;
  23. “Infrastructure project” means any construction or acquisition of treatment works, facilities related to the collection, transportation, and treatment of wastewater as defined in KRS 65.8903 , distribution facilities, or water resources projects instituted by a governmental agency or an investor-owned water utility which is approved by the authority and, if required, by the Energy and Environment Cabinet, Public Service Commission, or other agency; solid waste projects; dams; storm water control and treatment systems; gas or electric utility; broadband deployment project; or any other public utility or public service project which the authority finds would assist in carrying out the purposes set out in KRS 224A.300 ;
  24. “Infrastructure revolving fund” means that fund which will receive state funds, the proceeds from the sale of revenue bonds of the authority or other moneys earmarked for that fund for the purpose of providing loans or grants to finance construction or acquisition of infrastructure projects as defined in this section;
  25. “Loan or grant” means moneys to be made available to governmental agencies by the authority for the purpose of defraying all or any part of the total costs incidental to construction or acquisition of any infrastructure project;
  26. “Market interest rate” means the interest rate determined by the authority under existing market conditions at the time the authority shall provide financial assistance to a governmental agency;
  27. “Obligation of a governmental agency” means a revenue bond, bond anticipation note, revenue anticipation note, lease, or other obligation issued by a governmental agency under KRS 58.010 et seq. or other applicable statutes;
  28. “Person” means any individual, firm, partnership, association, corporation, or governmental agency;
  29. “Pollution” means the placing of any noxious or deleterious substances (“pollutants”), including sewage and industrial wastes, in any waters of the state or affecting the properties of any waters of the state in a manner which renders the waters harmful or inimical to the public health or to animal or aquatic life, or to the use, present or future, of these waters for domestic water supply, industrial or agricultural purposes, or recreational purposes;
  30. “Prioritization schedules” means the list of wastewater treatment works, distribution facilities and water resources projects which the Energy and Environment Cabinet has evaluated and determined to be of priority for receiving financial assistance from the federally assisted wastewater revolving fund and the federally assisted drinking water revolving fund, or the list of infrastructure projects which the authority has evaluated and determined to be of priority for receiving financial aid from the infrastructure revolving fund. The evaluation by the authority of infrastructure projects for water systems shall be undertaken with input from the appropriate area development district;
  31. “Recovered material” means those materials which have known current use, reuse, or recycling potential, which can be feasibly used, reused, or recycled, and which have been diverted or removed from the solid waste stream for sale, use, reuse, or recycling, whether or not requiring subsequent separation and processing but does not include materials diverted or removed for purposes of energy recovery or combustion except refuse-derived fuel (RDF), which shall be credited as a recovered material in an amount equal to that percentage of the municipal solid waste received on a daily basis at the processing facility and processed into RDF; but not to exceed fifteen percent (15%) of the total amount of the municipal solid waste received at the processing facility on a daily basis;
  32. “Recovered material processing facility” means a facility engaged solely in the storage, processing, and resale or reuse of recovered material but does not mean a solid waste facility if solid waste generated by a recovered material processing facility is managed in accordance with KRS Chapter 224 and administrative regulations adopted by the cabinet;
  33. “Revenue bonds” means special obligation bonds issued by the authority as provided by the provisions of this chapter, which are not direct or general obligations of the state, and which are payable only from a pledge of, and lien upon, authority revenues as provided in the resolution authorizing the issuance of the bonds, and shall include revenue bond anticipation notes;
  34. “Service charge” means any monthly, quarterly, semiannual, or annual charge to be imposed by a governmental agency, or by the authority, for any infrastructure project financed by the authority, which service charge arises by reason of the existence of, and requirements of, any assistance agreement;
  35. “Sewage” means any of the waste products or excrements, or other discharges from the bodies of human beings or animals, which pollute the waters of the state;
  36. “Shapefile” means a file format for storing, depicting, and analyzing geospatial data showing broadband coverage;
  37. “Solid waste” means “solid waste” as defined by KRS 224.1-010 (30)(a);
  38. “Solid waste facility” means any facility for collection, handling, storage, transportation, transfer, processing, treatment, or disposal of solid waste, whether the facility is associated with facilities generating the waste or otherwise, but does not include a container located on property where the waste is generated and which is used solely for the purpose of collection and temporary storage of that solid waste prior to off-site disposal, or a recovered material processing facility;
  39. “Solid waste project” means construction, renovation, or acquisition of a solid waste facility which shall be instituted and owned by a governmental agency;
  40. “Solid waste revolving fund” means that fund which shall receive state funds, the proceeds from the sale of revenue bonds of the authority, or other moneys earmarked for the purpose of providing loans or grants to finance solid waste projects defined in this section;
  41. “State” means the Commonwealth of Kentucky;
  42. “System” means the system owned and operated by a governmental agency with respect to solid waste projects, treatment works, or infrastructure projects financed as provided by the assistance agreement between the governmental agency and the authority;
  43. “Treatment works” or “wastewater treatment works” means all or any part of any facilities, devices, and systems used and useful in the storage, treatment, recycling, and reclamation of wastewater or the abatement of pollution, including facilities for the treatment, neutralization, disposal of, stabilization, collecting, segregating, or holding of wastewater, including without limiting the generality of the foregoing, intercepting sewers, outfall sewers, pumping power stations, and other equipment and their appurtenances; extensions, improvements, remodeling, additions, and alterations thereof, and any wastewater treatment works, including site acquisition of the land that will be an integral part of the wastewater treatment process, or is used for ultimate disposal of residues resulting from wastewater treatment, together with any other facilities which are deemed to be treatment works in accordance with the federal act;
  44. “Underserved area” means any project area where fixed, terrestrial broadband service with a minimum twenty-five (25) megabits per second downstream and three (3) megabits per second upstream is not available;
  45. “Unserved area” means any project area where fixed, terrestrial broadband service with a minimum ten (10) megabits per second downstream and one (1) megabit per second upstream is not available;
  46. “Utility tax” means the tax which may be imposed by the authority on every purchase of water or sewer service in the Commonwealth of Kentucky;
  47. “Variable rate revenue bonds” means revenue bonds the rate of interest on which fluctuates either automatically by reference to a predetermined formula or index or in accordance with the standards set forth in KRS 224A.120 ;
  48. “Wastewater” means any water or liquid substance containing sewage, industrial waste, or other pollutants or contaminants derived from the prior use of these waters;
  49. “Water resources” means all waters of the state occurring on the surface, in natural or artificial channels, lakes, reservoirs, or impoundments, and in subsurface aquifers, which are available, or which may be made available to agricultural, industrial, commercial, recreational, public, and domestic users;
  50. “Water resources project” means any structural or nonstructural study, plan, design, construction, development, improvement, or any other activity including programs for management, intended to conserve and develop the water resources of the state and shall include all aspects of water supply, facilities to collect, transport, and treat wastewater as defined in KRS 65.8903 , flood damage abatement, navigation, water-related recreation, and land conservation facilities and measures; and
  51. “Waters of the state” means all streams, lakes, watercourses, waterways, ponds, marshes, wells, springs, irrigation systems, drainage systems, and all other bodies or accumulations of water, surface and underground, natural or artificial, which are situated wholly or partly within, or border upon, this state, or are within its jurisdiction, except those private waters which do not combine or effect a junction with natural, surface, or underground waters.

History. Enact. Acts 1988, ch. 124, § 1, effective March 31, 1988; 1990, ch. 217, § 1, effective July 13, 1990; 1990, ch. 477, § 2, effective July 13, 1990; 1991 (1st Ex. Sess.), ch. 12, § 42, effective February 26, 1991; 1994, ch. 373, § 1, effective July 15, 1994; 1998, ch. 69, § 73, effective July 15, 1998; 2000, ch. 529, § 15, effective July 14, 2000; 2002, ch. 342, § 15, effective July 15, 2002; 2006, ch. 134, § 1, effective July 12, 2006; 2010, ch. 24, § 385, effective July 15, 2010; 2011, ch. 98, § 19, effective June 8, 2011; 2017 ch. 117, § 27, effective June 29, 2017; 2020 ch. 72, § 1, effective July 15, 2020.

Research References and Practice Aids

Kentucky Bench & Bar.

Herrington, Executive Branch Ethics Commission Advisory Opinion 94-4 and Lobbying Registration Requirements Applicable to Attorneys, Vol. 59, No. 1, Winter 1995, Ky. Bench & Bar 22.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Procedural Context for Environmental Protection, § 350.00.

224A.013. Remediation of property as qualified infrastructure project.

Remediation of a property owned by a governmental agency in accordance with KRS 224.1-510 to 224.1-532 shall qualify as an infrastructure project for the purposes of this chapter.

History. Enact. Acts 2001, ch. 128, § 15, effective June 21, 2001.

Compiler’s Notes.

This section is set out above to reflect a correction to the section reference appearing in section from “224.01-510 to 224.01-532 ” to “224.1-510 to 224.1-532 ” due to renumbering by the state reviser effective in 2013.

224A.020. Legislative finding as to infrastructure projects.

The General Assembly of the Commonwealth of Kentucky finds as a fact that the polluting and befouling of the waters of the state has harmed, and is presently harming and injuring, the state’s abundant water resources, and, if unabated, will continue to harm such state water resources, and will endanger the health, safety, welfare and well-being of the general public, and the ability of the state to provide essential governmental services for the benefit of the public, and that such situation, if allowed to continue unchecked, will destroy the natural chemical, physical, and biological integrity of the waters of the state. Further, the conservation, development and proper use of the water resources of the state are of vital importance as a result of population expansion and concentration, industrial growth and technological advances. It is hereby found and determined to be essential to the preservation of the natural water resources, economic potential, and general well-being of the state that, to the maximum and greatest extent possible, the state should and must actively engage in a program of assistance to governmental agencies whereby infrastructure projects may be more economically provided so as to better serve the general public of the state.

History. Enact. Acts 1972, ch. 329, § 2; 1974, ch. 336, § 2; 1988, ch. 124, § 2, effective March 31, 1988.

224A.030. Creation of Kentucky Infrastructure Authority — Membership.

  1. There is hereby created the Kentucky Infrastructure Authority, which authority shall be a body corporate and politic, constituting a public corporation and a governmental agency and instrumentality of the state. The affairs of the authority shall be managed and carried out by a board consisting of eleven (11) members. The secretaries of the Economic Development, Finance and Administration, and Energy and Environment Cabinets; the executive director of the Public Service Commission; and the commissioner of the Department for Local Government shall serve as ex officio members of the authority. The secretaries, the executive director, and the commissioner may designate alternates. The Governor shall additionally appoint six (6) at-large members. One (1) member shall be selected from a list of three (3) nominees submitted by the Kentucky Association of Counties, one (1) member selected from a list of three (3) nominees submitted by the Kentucky League of Cities, one (1) member selected from a list of three (3) nominees submitted by the Kentucky Rural Water Association, one (1) member representing for-profit private water companies, one (1) member selected from a list of three (3) nominees submitted by the Kentucky section of the American Water Works Association, and one (1) member selected from a list of three (3) nominees submitted by the Kentucky Municipal Utilities Association. As the terms of the at-large members expire, the Governor shall appoint successors for terms of four (4) years and until their successors are appointed. The members shall constitute the Kentucky Infrastructure Authority, with power in that name to contract and be contracted with, sue and be sued, have and use a corporate seal, and exercise, in addition to the powers and functions specifically stated in this chapter, all of the usual powers of private corporations to the extent that the powers are not inconsistent with specifically enumerated powers of the authority. In the carrying out of its purposes and the exercise by it of the powers conferred by this chapter, the authority is deemed and declared to be performing essential governmental functions and public purposes of the state.
  2. The members of the authority shall receive no compensation for their services in their official capacity but shall be entitled to reimbursement for all reasonable expenses necessarily incurred in connection with performance of their duties and functions as authority members.
  3. Six (6) members of the authority shall constitute a quorum for the transaction of business, and in the absence of a quorum, one (1) or more members may adjourn from time to time until a quorum is convened. The members of the authority shall choose from their ranks a chair and a vice chair. The authority shall elect a secretary and a treasurer who shall not be members of the authority, each of whom shall serve at the pleasure of the authority and shall receive compensation as may be determined by the authority.
    1. The authority shall, for administrative purposes, be attached to the Department for Local Government, which shall provide any office space required by the authority. (4) (a) The authority shall, for administrative purposes, be attached to the Department for Local Government, which shall provide any office space required by the authority.
    2. The secretary of the authority shall at all times maintain therein complete records of all of the authority’s actions and proceedings which shall constitute public records open to inspection at all reasonable times.

History. Enact. Acts 1972, ch. 329, § 3; 1982, ch. 396, § 51, effective July 15, 1982; 1984, ch. 216, § 10, effective July 13, 1984; 1988, ch. 124, § 3, effective March 31, 1988; 1990, ch. 477, § 5, effective July 13, 1990; 1992, ch. 105, § 73, effective July 14, 1992; 1994, ch. 373, § 2, effective July 15, 1994; 1998, ch. 69, § 74, effective July 15, 1998; 2000, ch. 529, § 16, effective July 14, 2000; 2007, ch. 47, § 89, effective June 26, 2007; 2009, ch. 12, § 49, effective June 25, 2009; 2009, ch. 29, § 1, effective June 25, 2009; 2010, ch. 24, § 386, effective July 15, 2010; 2010, ch. 117, § 85, effective July 15, 2010.

Legislative Research Commission Note.

(7/15/2010). This section was amended by 2010 Ky. Acts chs. 24 and 117, which do not appear to be in conflict and have been codified together.

224A.035. Purpose — Status.

The Kentucky Infrastructure Authority is created solely to perform essential governmental functions and to serve the public purpose of engaging in a program of assistance to governmental agencies in the state with respect to the construction and acquisition of infrastructure projects. In accomplishing such purposes, the Kentucky Infrastructure Authority shall be and constitute a de jure municipal corporation and political subdivision of the state.

History. Enact. Acts 1976, ch. 204, § 1; 1984, ch. 216, § 11, effective July 13, 1984; 1988, ch. 124, § 4, effective March 31, 1988.

224A.040. Financing infrastructure projects.

The authority may, pursuant to the terms, conditions, restrictions and requirements of this chapter, lease an infrastructure project or make loans or grants as funds are available, to any governmental agency, or purchase obligations of a governmental agency, to assist the governmental agency to carry out the construction or acquisition of infrastructure projects.

History. Enact. Acts 1972, ch. 329, § 4; 1974, ch. 336, § 3; 1988, ch. 124, § 5, effective March 31, 1988.

224A.050. Use of funds.

It is hereby found and declared as a legislative finding of fact that in performing its duties and responsibilities, the authority is performing and carrying out essential governmental functions. The authority may, from time to time, receive and accept any and all appropriations to the authority which may be made by the General Assembly of the state, and the appropriations may be made to the authority. The authority may, from time to time, receive and accept from the state, its agencies, and any federal agency, grants for, or in aid of, any infrastructure project, and grants for, or in aid of, research or management studies or training projects related to the purposes for which the authority is created, the grants or contributions to be held, used, and applied only for the purposes for which the grants and contributions are made and received.

History. Enact. Acts 1972, ch. 329, § 5; 1988, ch. 124, § 6, effective March 31, 1988.

224A.055. Funding consideration of infrastructure projects. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1992, ch. 105, § 74, effective July 14, 1992) was repealed by Acts 2000, ch. 529, § 21, effective July 14, 2000.

224A.060. Authority is taxing district — Power to levy taxes.

The authority is hereby declared to constitute an independent taxing district within the meaning of the Constitution of the Commonwealth of Kentucky, which authority, as an independent taxing district, shall encompass the entire geographical area of the Commonwealth of Kentucky. The General Assembly finds and determines as a legislative finding of fact that the use of water in any manner tending to contaminate it creates a pollutant, and that the public health, safety, and welfare of the citizens of Kentucky will best be served by the proper disposition thereof according to the highest public health standards. The carrying out of such objectives serves a statewide public purpose, not related to any specific area or locality of the state, but affecting the welfare and health of all Kentucky citizens and the future of the state, both functionally and economically. The authority, upon resolution duly adopted by its governing body, as an independent taxing district within the Commonwealth of Kentucky, may levy and collect a tax upon every purchase of water service or sewer service in the Commonwealth of Kentucky, such tax to be equal to not more than two percent (2%) of the gross amount of each such purchase of water service or sewer service. All of such utility tax receipts shall, upon receipt, be and constitute authority revenues, and may be used, treated and applied by the authority in common with other authority revenues, to carry out the purposes for which the authority is created, including payment of principal and interest on authority revenue bonds; provided, however, that in connection with the issuance of authority revenue bonds, the authority may pledge such utility tax receipts for bond amortization purposes only to the extent same may be actually levied, collected, and received by the authority, and to the extent same are not otherwise committed or budgeted by the authority during any fiscal period of the authority, and no covenant shall be made by the authority for the continuation of such utility tax in futuro, without the requisite vote required by the provisions of the Constitution of the Commonwealth of Kentucky.

History. Enact. Acts 1972, ch. 329, § 6; 1994, ch. 373, § 3, effective July 15, 1994.

224A.070. Powers.

The authority may carry out and perform the following essential governmental functions of statewide import and concern:

  1. To promulgate administrative regulations and adopt bylaws for the regulation of its affairs and the conduct of its business, which shall define with specificity conditions precedent under which applications for loans or grants may be made and the order of priority upon which applications shall be acted upon;
  2. To retain an executive director, who shall be experienced and knowledgeable in the fields in which the authority may act, together with other employees, including for example only, engineers, accountants, and attorneys, necessary and appropriate to enable the authority to fulfill its duties, functions, and responsibilities;
  3. To adopt a corporate seal;
  4. To sue and be sued in its own name and to have the right, power, and authority to enforce its obligations and covenants made pursuant to the provisions of this chapter;
  5. To levy a tax on every purchase of water service and sewer service in the state, such tax to be equal to not more than two percent (2%) of the gross amount of the bill for water services rendered;
  6. To approve or reject applications made to the authority for loans or grants;
  7. To lease an infrastructure project or make loans or grants to or purchase or refinance obligations of any governmental agency for the purpose of assisting the governmental agency in the construction of an infrastructure project. A lease, loan, or grant shall be in accordance with the terms and conditions of an assistance agreement by and between the authority and the governmental agency, which shall include the provisions and conditions specified in KRS 224A.100 , and such other reasonable terms and conditions as the authority shall determine;
  8. Without reference to the provisions of KRS Chapter 56, to acquire and hold in the name of the authority, by the exercise of the power of eminent domain pursuant to the Eminent Domain Act of Kentucky, the real property or rights therein, including rights-of-way, easements and licenses, and the personal property reasonably deemed necessary to effectuate the development, implementation, financing, and construction or acquisition of any infrastructure project, and to make the properties available to a governmental agency in connection with an infrastructure project;
  9. To receive service charges from governmental agencies which have entered into assistance agreements with the authority, in accordance with the terms and conditions of the assistance agreements, and to use and employ the service charges in accordance with the provisions of this chapter, the service charges to constitute authority revenues;
  10. To enter into and enforce assistance agreements made and entered into with governmental agencies by suit, action, mandamus or other proceedings, including the obtaining by judicial decree of the appointment of a receiver to administer infrastructure projects financed by leases, loans or grants which have been undertaken by governmental agencies;
  11. To enter into any necessary or required agreement with federal or state agencies or persons to carry out the provisions of this chapter;
  12. To bid at a competitive public sale of obligations of a governmental agency or negotiate the purchase or sale of obligations of a governmental agency, notwithstanding any other law to the contrary;
  13. To borrow money and issue negotiable bonds and notes pursuant to this chapter;
  14. To lend money to governmental agencies or to advance moneys from the infrastructure revolving fund to the federally assisted wastewater revolving fund in order to match federal moneys that may become available;
  15. To contract with the federal government as to any infrastructure project;
  16. To participate with the federal government or any of its agencies, the state government or any of its agencies or political subdivisions, or any other person in the construction or repair of any infrastructure project; and
  17. To have, possess, and exercise all other powers reasonably incident to the carrying out of the duties and responsibilities of the authority.

History. Enact. Acts 1972, ch. 329, § 7; 1976, ch. 140, § 95; 1984, ch. 216, § 12, effective July 13, 1984; 1988, ch. 124, § 7, effective March 31, 1988; 1994, ch. 373, § 4, effective July 15, 1994; 2000, ch. 529, § 17, effective July 14, 2000.

Research References and Practice Aids

Cross-References.

Eminent Domain Act of Kentucky, KRS 416.540 et seq.

224A.075. Financing of solid waste management facilities. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1982, ch. 103, § 1, effective July 15, 1982) was repealed by Acts 1988, ch. 124, § 17, effective March 31, 1988.

224A.080. Correlative powers of other governmental agencies.

All governmental agencies shall have and possess, in addition to all other powers now or hereafter vested in them, the following powers:

  1. To undertake infrastructure projects;
  2. To make application for, and to receive, federal grants or loans in aid of infrastructure projects in accordance with the provisions of any federal laws now in effect, or in effect in the future;
  3. To make application for, and to receive, grants or loans in accordance with the terms and provisions of this chapter;
  4. To comply with rules, administrative regulations, and bylaws promulgated by the authority;
  5. To enter into assistance agreements with the authority;
  6. To comply with all terms, conditions and requirements of any assistance agreement. An assistance agreement to which a governmental agency is a party may provide for the making of financing payments by the governmental agency from appropriations made to or by the governmental agency as, if and when received. No such obligation shall be binding on the governmental agency for a period extending beyond the legislative term during which it is incurred, but it may be renewed during successive legislative terms;
  7. To covenant with the authority to, and to impose, service charges upon all persons to whom services are provided by infrastructure projects. The service charges shall, as appropriate in the individual cases and circumstances, be in addition to all other rates, rentals, and charges of a similar nature now or hereafter authorized by law and now or hereafter being levied and collected by the governmental agencies. Counties and urban-county governments, including counties containing metropolitan sewer districts, shall have the right to covenant with the authority to pay to the authority on an annual, automatically renewable basis, the moneys and funds pursuant to an assistance agreement as shall enable the authority to amortize revenue bonds issued to provide infrastructure projects to the counties and urban-county governments, subject to constitutional provisions;
  8. To covenant with the authority to mandatorily require the use of sanitary sewers by all persons owning, renting, or occupying premises generating pollution, where sewer service is reasonably available to such premises, and to exhaust all remedies for the collection of service charges, including termination of water service to delinquent sewer customers; and to promptly remit all service charges collected to the authority in accordance with the terms, conditions, and requirements of assistance agreements.
  9. To covenant with the authority for the payment of state revenues, tax sharing or other state aid, with the exception of funds in aid to education and funds derived from motor fuel taxes or vehicle license taxes pursuant to Section 230 of the Constitution of Kentucky, as the governmental agency may thereafter become entitled to receive from the state, to the authority or to a trustee until the time all delinquent payments by the governmental agency have been paid. If the authority and a governmental agency enter into an agreement, the State Treasurer shall pay the pledged money in accordance with the provisions of the agreement.

History. Enact. Acts 1972, ch. 329, § 8; 1974, ch. 336, § 4; 1984, ch. 216, § 13, effective July 13, 1984; 1988, ch. 124, § 8, effective March 31, 1988; 1994, ch. 373, § 5, effective July 15, 1994.

224A.085. Interim financing.

The authority may enter into interim financing agreements with governmental agencies, and governmental agencies may enter into interim financing agreements with the authority in connection with eligible projects. Each such interim financing agreement may be subject to the approval by the State Water Pollution Agency, or the State Public Service Commission, if applicable, may contain and include such provisions as may be agreed upon by the parties thereto, and shall include and prescribe the following provisions:

  1. An estimate of the reasonable cost of the eligible project, as determined by the authority;
  2. The amount of state or federal grants or loans to be made to the governmental agency;
  3. The time or times at which such state or federal grants or loans shall become payable to the governmental agency;
  4. The specific purpose or purposes for which the proceeds of state or federal grants or loans made to the governmental agency shall be expended;
  5. The conditions under which state or federal grants or loans may be expended on account of the eligible project by the governmental agency;
  6. An agreement by the governmental agency:
    1. To proceed expeditiously with and promptly complete the eligible project or cause same to be completed in accordance with the plans and specifications approved by federal and state agencies;
    2. To commence or cause to be commenced operation of the eligible project on completion of construction and not to discontinue operations or dispose of such eligible project without the approval of the authority, and the State Water Pollution Agency or State Public Service Commission, if applicable;
    3. To operate and maintain or cause to be operated and maintained the eligible project in accordance with applicable provisions of federal and state law and the terms and conditions of the loan documents implementing federal or state grants or loans to the governmental agency;
    4. To provide for the payment of the governmental agency’s share of the cost of the eligible project through the issuance of the governmental agency long term debt obligations in the appropriate manner and at the appropriate time in order that sufficient funds will be available to repay and retire bond anticipation notes issued by the authority on behalf of said governmental agency.

History. Enact. Acts 1984, ch. 216, § 14, effective July 13, 1984.

224A.090. Payment of study expenses from revenue bond proceeds.

With the approval and the consent of the authority’s governing body, and in cooperation and coordination with the State Water Pollution Agency, the executive director of the authority shall cause to be expended out of any funds available for said purposes such moneys as are necessary for the study of any proposed eligible project, to determine as to whether a state grant shall be awarded in connection with any eligible project. All such expenses incurred prior to the issuance of any revenue bonds by the authority shall be charged and allocated to the appropriate eligible project, and upon the sale of authority revenue bonds or notes to provide funds for eligible projects, the funds so expended in connection with the study of such individual eligible projects shall be reimbursed from the proceeds of such bonds or notes.

History. Enact. Acts 1972, ch. 329, § 9.

224A.100. Assistance agreements — Contents — Review by legislative committee.

The authority may enter into assistance agreements with governmental agencies, and governmental agencies may enter into assistance agreements with the authority in connection with infrastructure projects. Each assistance agreement shall be subject to review by the Capital Projects and Bond Oversight Committee of the Legislative Research Commission and may contain and include such provisions as may be agreed upon by the parties thereto, and shall include and prescribe the following provisions:

  1. An estimate of the reasonable cost of the infrastructure project, as determined by the authority;
  2. The amount of the total rentals under any lease of an infrastructure project, loans or grants to be made to the governmental agency, financing payments, or obligations of the governmental agency to be purchased by the authority;
  3. The time or times at which the rentals, loans or grants, financing payments, or the purchase price of a governmental agency shall become payable by or to the governmental agency;
  4. The specific purpose or purposes for which the leased infrastructure project will be used or the proceeds of the purchase of obligations of the governmental agency or loan or grant made pursuant to the assistance agreement shall be expended;
  5. The conditions under which the leased infrastructure project will be used or the proceeds of the purchase of obligations of the governmental agency or loan or grant may be expended on account of the infrastructure project by the governmental agency;
  6. An agreement by the governmental agency:
    1. To proceed expeditiously with and promptly complete the infrastructure project or cause same to be completed in accordance with plans and specifications approved by federal and state regulatory agencies;
    2. To commence or cause to be commenced operation of the infrastructure project on completion of construction, and not to discontinue operations or dispose of such infrastructure project without the approval of the authority;
    3. To operate and maintain or cause to be operated and maintained the infrastructure project in accordance with the applicable provisions of federal and state law;
    4. To disclose fully to the authority all applications for or award of grants or loans for financial assistance, if any;
    5. To provide for the payment of the governmental agency’s share of the cost of the infrastructure project, if the entire infrastructure project is not financed by assistance from the authority and describe with specificity the manner in which the governmental agency proposes to finance its share of such cost, if any;
  7. A provision that, if assistance which was not included in the calculation of the loan or grant payable pursuant to subsection (2) of this section becomes available to the governmental agency, the amount of the assistance from the authority shall be recalculated with the inclusion of the additional assistance, and the governmental agency shall pay to the authority the amount, if any, by which the loan or grant actually made, exceeds the loan or grant as determined by the recalculation;
  8. The extent to which the assistance from the authority shall be repaid to the authority, which shall not be less than the sum of the following, except as provided under KRS 224A.111 , 224A.112 , and 224A.1115 :
    1. The aggregate principal amount of the loan; and
    2. Interest on the aggregate balance of the principal amount of the loan from time to time remaining unpaid, computed at the applicable interest rate, plus not to exceed one-quarter of one percent (0.25%), except as provided for in KRS 224A.111 , 224A.112 , and 224A.1115 ;
  9. The time or times and amounts when the repayments required by subsection (8) of this section shall be made by the governmental agency to the authority;
  10. The extent to which a service charge shall be imposed by the governmental agency. Any service charge shall be calculated to produce amounts sufficient to meet the repayment schedule prescribed by subsection (8) of this section; and
  11. An agreement between the governmental agency and the authority that upon any failure of the governmental agency to make payment to the authority in accordance with the time schedule and repayment schedule fixed by the assistance agreement of the amounts prescribed by said schedules, that in such event the authority may, without further action, require the State Treasurer to pay to the authority such amount of other state revenues, tax sharing, or other state aid, with the exception of funds in aid to education and funds derived from motor fuel taxes or vehicle license taxes pursuant to Section 230 of the Constitution of Kentucky, as the governmental agency may thereafter become entitled to receive from the state, until all delinquent payments pursuant to the repayment schedule, plus interest thereon, from the date of each delinquency at the applicable interest rate per annum, shall have been paid.

History. Enact. Acts 1972, ch. 329, § 10; 1974, ch. 336, § 5; 1988, ch. 124, § 9, effective March 31, 1988; 1992, ch. 105, § 56, effective July 14, 1992; 1994, ch. 373, § 6, effective July 15, 1994; 2000, ch. 529, § 18, effective July 14, 2000; 2002, ch. 342, § 16, effective July 15, 2002.

224A.110. Deposit of moneys — Use of revenues.

  1. All moneys derived by the authority pursuant to assistance agreements other than those assistance agreements funded under KRS 224A.111 , 224A.112 , and 224A.112 1 shall be received by the authority as constituting authority revenues, and shall, in common with other authority revenues, be immediately deposited into such funds or accounts as the authority shall designate.
  2. Moneys derived by the authority pursuant to assistance agreements funded under KRS 224A.111 and all federal and state money or proceeds from the sale of revenue bonds of the authority received in support of assistance agreements funded under KRS 224A.111 shall be deposited into an account designated as the “federally assisted wastewater revolving fund.”
  3. Moneys derived by the authority pursuant to assistance agreements funded under KRS 224A.112 and all state money or proceeds from the sale of revenue bonds of the authority received in support of KRS 224A.112 shall be deposited into either the infrastructure revolving fund or the broadband deployment fund.
  4. All authority revenues shall, before being expended for any other purposes of the authority, first be applied to the payment of the principal of and interest on authority revenue bonds in accordance with the resolution authorizing their issuance, as, and when the same become due and payable.

History. Enact. Acts 1972, ch. 329, § 11; 1988, ch. 124, § 10, effective March 31, 1988; 2020 ch. 72, § 2, effective July 15, 2020.

224A.111. Creation of federally assisted wastewater revolving fund — Purpose — Duties of authority.

  1. The federally assisted wastewater revolving fund shall be established in the State Treasury and shall be administered by the authority under an agreement with the Energy and Environment Cabinet to assure compliance with the federal act.
  2. The fund shall be a dedicated fund and all moneys in the fund shall be dedicated solely to securing the payment of the principal of, interest on, and premium, if any, of revenue bonds issued by the authority under subsection (5) of this section which are to be secured solely by loan payments made by governmental agencies that have been deposited in the fund, making transfers to the federally assisted water supply revolving fund, and providing financial assistance to government agencies for the construction of publicly owned treatment works as defined in Section 212 of the federal act and for the implementation of a management program established under Section 319 of the federal act and for the development and implementation of a conservation and management plan under Section 320 of the federal act.
  3. The authority may enter into grant agreements with the administrator of the United States Environmental Protection Agency and accept capitalization grants for the revolving fund in accordance with payment schedules established with the administrator.
  4. All payments from the administrator pursuant to subsection (3) of this section shall be deposited in the dedicated revolving fund.
  5. The authority may issue its revenue bonds or seek appropriations for deposit into the revolving fund, including the amounts required to match the capitalization grants from the administrator. An amount not exceeding the amount permitted by the federal act may be used for the reasonable costs of administering the fund, for reviewing and regulating project construction and for other reasonable costs of complying with the federal act.
  6. The financial assistance which may be provided to governmental agencies by the revolving fund shall be limited to:
    1. Making loans, on the condition that the loans are made at or below market interest rates, including interest free loans; that annual principal and interest payments will commence no later than when project construction is completed or one (1) year after initiation of operations, and all loans will be fully amortized not later than thirty (30) years after project construction is completed; that the recipient of a loan will establish a dedicated source of revenue for repayment of loans; and that the fund will be credited with all payments of principal and interest on all loans;
    2. Guaranteeing, or purchasing insurance for obligations of the fund where the action would improve credit market access or reduce interest rates;
    3. Providing moneys with which to carry out the requirements of assistance agreements; and
    4. Providing a source of revenue or security for the payment of principal and interest on bonds or notes issued by the authority or agencies of the state if the proceeds of the sale of the bonds will be deposited in the fund.
  7. The revolving fund shall be established, maintained and credited with repayments and the fund balance shall be available in perpetuity solely for its stated purposes.
  8. The authority shall obligate all payments from the administrator of the United States Environmental Protection Agency as well as the required state match, within one (1) year after the receipt of the payments.
  9. Financial assistance may be provided from the fund only for those infrastructure projects which the Finance and Administration Cabinet has approved from the prioritization schedule prepared by the Energy and Environment Cabinet.
  10. The authority may make and condition loans from the fund as required by state or federal law.
  11. The authority shall establish fiscal controls and accounting procedures sufficient to assure proper accounting during appropriate accounting periods for payments and disbursements received and made by the revolving fund and for fund balances at the beginning and end of the accounting period.
  12. The authority or the Energy and Environment Cabinet may make or prepare any necessary or required plan or report.
  13. The authority or the Energy and Environment Cabinet or the loan recipient shall make available to the administrator of the United States Environmental Protection Agency records which the administrator reasonably requires to review in order to determine compliance with any applicable provision of law.
  14. The authority may enter into any necessary or required agreement and give or make any necessary or required assurance or certification with any person to receive payments or grants or to make or provide any financial assistance.
  15. The authority may enter into any necessary or required agreement with federal or state agencies or persons to carry out the provisions of this section.
  16. If a loan is made from the federally assisted wastewater revolving fund which will finance the cost of facility planning and the preparation of plans, specifications, and estimates for construction of publicly owned treatment works, the state shall ensure that if the recipient of the loan receives a grant under section 201(g) of the federal act for construction of such treatment works and an allowance under section 201(1)(l) of the federal act for nonfederal funds expended for the planning and preparation, the recipient shall promptly repay the loan to the extent of the allowance.
  17. Financial assistance may be provided from the federally assisted wastewater revolving fund only with respect to a project which is consistent with plans, if any, developed under Sections 205(j), 208, 303(e), 319, and 320 of the federal act, as amended.
  18. The authority shall require as a condition of making a loan or providing other assistance, as described in KRS 224A.100(6), from the fund that the recipient of the assistance shall maintain project accounts in accordance with generally accepted governmental accounting standards.
  19. Assistance may be provided from the fund, other than under subsection (6)(a) of this section, to a governmental agency with respect to the nonfederal share of the costs of a treatment works project for which the governmental agency is receiving assistance from the administrator of the United States Environmental Protection Agency under any other authority only if the assistance, as determined by the Finance and Administration Cabinet, is necessary to allow the project to proceed.

HISTORY: Enact. Acts 1988, ch. 124, § 11, effective March 31, 1988; 1994, ch. 373, § 7, effective July 15, 1994; 2003, ch. 38, § 1, effective June 24, 2003; 2010, ch. 24, § 387, effective July 15, 2010; 2015 ch. 73, § 1, effective June 24, 2015.

Opinions of Attorney General.

The state has the authority to comply with the requirements of Title VI of the Water Quality Act of 1987, 33 USCS § 1251 et seq., and the Cabinet may enter into a grant agreement with the Environmental Protection Agency which would bind the state to the terms and conditions of the capitalization grant. OAG 88-77 .

224A.1115. Creation of federally assisted water supply revolving fund — Purpose — Duties of authority.

  1. The federally-assisted water supply revolving fund shall be established in the State Treasury and shall be administered by the authority under an agreement with the Energy and Environment Cabinet to assure compliance with the federal act.
  2. The fund shall be a dedicated fund and all moneys in the fund shall be dedicated solely to securing the payment of the principal of, interest on, and premium, if any, of revenue bonds issued by the authority under subsection (5) of this section which are to be secured solely by loan payments made by governmental agencies that have been deposited in the fund, making transfers to the federally-assisted water supply revolving fund, and providing financial assistance to government agencies for the construction of publicly-owned water supply projects.
  3. The authority may enter into grant agreements with the administrator of the United States Environmental Protection Agency and accept capitalization grants for the revolving fund in accordance with payment schedules established with the administrator of the United States Environmental Protection Agency.
  4. All payments from the administrator of the United States Environmental Protection Agency pursuant to subsection (3) of this section shall be deposited in the dedicated revolving fund.
  5. The authority may issue its revenue bonds or seek appropriations for deposit into the revolving fund, including the amounts required to match the capitalization grants from the administrator of the United States Environmental Protection Agency. An amount not exceeding the amount permitted by the federal act may be used for the reasonable costs of administering the fund, for reviewing and regulating project construction and for other reasonable costs of complying with the federal act.
  6. The authority shall make any loan from the revolving fund subject to those conditions established by state or federal law.
  7. The revolving fund shall be established, maintained, and credited with repayments and the fund balance shall be available in perpetuity solely for its stated purposes.
  8. Financial assistance may be provided from the fund only for those infrastructure projects which the Finance and Administration Cabinet has approved from the prioritization schedule prepared by the Energy and Environment Cabinet.
  9. The authority shall establish fiscal controls and accounting procedures sufficient to assure proper accounting during appropriate accounting periods for payments and disbursements received and made by the revolving fund and for fund balances at the beginning and end of the accounting period.
  10. The authority or the Energy and Environment Cabinet may make or prepare any necessary or required plan or report.
  11. The authority or the Energy and Environment Cabinet or the loan recipient shall make available to the administrator of the United States Environmental Protection Agency records which the administrator reasonably requires to review in order to determine compliance with any applicable provision of law.
  12. The authority may enter into any necessary or required agreement and give or make any necessary or required assurance or certification with any person to receive payments or grants or to make or provide any financial assistance.
  13. The authority may enter into any necessary or required agreement with federal or state agencies or persons to carry out the provisions of this section.
  14. If the loan is made from the federally-assisted water supply revolving fund which will finance the cost of facility planning and the preparation of plans, specifications, and estimates for construction of publicly-owned water supply projects, the state shall ensure that if the recipient of the loan receives a grant under the federal act for construction of those water supply projects and an allowance under the federal act for nonfederal funds expended for the planning and preparation, the recipient shall promptly repay the loan to the extent of the allowance.
  15. Financial assistance may be provided from the federally-assisted water supply revolving fund only with respect to a project which is consistent with plans, if any, developed under the federal act, as amended.
  16. The authority shall require as a condition of making a loan or providing other assistance, as described in KRS 224A.100(6), from the fund that the recipient of the assistance shall maintain project accounts in accordance with generally-accepted governmental accounting standards.
  17. Assistance may be provided from the fund to a governmental agency with respect to the nonfederal share of the costs of a water supply system project for which the governmental agency is receiving assistance from the administrator of the United States Environmental Protection Agency under any other authority only if the assistance is necessary to allow the project to proceed, as determined by the Finance and Administration Cabinet.

History. Enact. Acts 1994, ch. 373, § 8, effective July 15, 1994; 2003, ch. 38, § 2, effective June 24, 2003; 2010, ch. 24, § 388, effective July 15, 2010.

224A.112. Creation of infrastructure revolving fund and broadband deployment fund — Purpose — Use of moneys.

  1. The infrastructure revolving fund shall be established in the State Treasury and shall be administered by the authority. The fund shall be a dedicated fund, and all moneys in the fund shall be allocated and dedicated solely to providing financial assistance to governmental agencies, and investor-owned water systems as provided for in KRS 96.540 , 224A.306 , 224A.308 , and 224A.310 , for the construction or acquisition of infrastructure projects through an account designated as the 2020 water service account.
  2. The broadband deployment fund shall be established in the State Treasury and shall be administered by the authority. The fund shall be a dedicated fund, and all moneys in the fund shall be allocated and dedicated solely to providing grant funds to governmental agencies and private sector entities to construct infrastructure for the deployment of broadband service to households and businesses in underserved or unserved areas of the Commonwealth through an account designated as the broadband deployment fund.
  3. Funds in subsections (1) and (2) of this section shall not be commingled and shall be used only for the stated purposes in subsections (1) and (2) of this section.
  4. The financial assistance which may be provided by the revolving fund shall be limited to:
    1. Making loans, on the condition that the loans are made at or below market interest rates, including interest free loans, at terms not to exceed thirty (30) years and that the fund will be credited with all payments of principal and interest on all loans;
    2. Purchasing or guaranteeing, or purchasing insurance for, local or state obligations when the action would improve credit market access or reduce interest rates;
    3. Providing a source of revenue or security for the payment of principal and interest on bonds or notes issued by the authority or other agencies of the state if the proceeds of the sale of the bonds will be deposited in the fund;
    4. Providing moneys with which to carry out the requirements of assistance agreements; and
    5. Making grants as funds specifically appropriated for grants or proceeds from the sale of the authority’s revenue bonds are available.
  5. The revolving fund shall be established, maintained, and credited with repayments and the fund balance shall be available in perpetuity for its stated purposes.
  6. The authority may provide financial assistance from the fund to supplement assistance provided from the federally assisted wastewater revolving fund as created in KRS 224A.111 .
  7. The authority shall advise governmental agencies of the availability of the infrastructure revolving fund and how moneys may be obtained from the fund.
  8. The authority may enter into any necessary or required agreement with federal or state agencies or persons to carry out the provisions of this section. All state agencies shall cooperate with the authority and share information with the authority as appropriate to accomplish the purposes set out in KRS 224A.300 .
  9. Moneys in the fund are hereby appropriated for the purposes set forth in this section and KRS 224A.1121 .
  10. Notwithstanding KRS 45.229 , any moneys remaining in the fund at the close of the fiscal year shall not lapse but shall be carried forward into the succeeding fiscal year to be used for the purposes set forth in this section and KRS 224A.1121 .
  11. Interest earned on moneys in the broadband deployment fund shall stay in the fund.

History. Enact. Acts 1988, ch. 124, § 12, effective March 31, 1988; 1992, ch. 105, § 57, effective July 14, 1992; 1998, ch. 69, § 75, effective July 15, 1998; 2000, ch. 529, § 19, effective July 14, 2000; 2006, ch. 134, § 2, effective July 12, 2006; 2020 ch. 72, § 3, effective July 15, 2020.

224A.1121. Purpose of broadband deployment account — Grant program — Funding criteria and prioritization schedules — Guidelines and standards for grants — Applications available to public — Challenge — Partial funding — Administrative regulations.

  1. The purpose of the broadband deployment fund set forth in KRS 224A.112 shall be to assist governmental agencies and private sector entities to construct infrastructure for the deployment of broadband service to underserved or unserved areas of the Commonwealth. The authority shall manage the fund and may accept and receive appropriations from the General Assembly or other funds or gifts from both public and private sources, including but not limited to local governments and federal agencies.
  2. The authority shall establish a grant program that allocates funds from the broadband deployment fund in accordance with this section. Grant funds may be used by government or private sector entities for broadband deployment projects.
  3. The grant program shall be developed to give highest funding priority to those projects which most effectively provide broadband service to the greatest number of underserved and unserved Kentucky citizens and at the lowest cost. Funding shall not be used to duplicate broadband service to citizens, households, and businesses in a broadband deployment project area where fixed, terrestrial broadband service meets or exceeds twenty-five (25) megabits per second downstream and three (3) megabits per second upstream.
  4. The authority shall develop funding criteria and prioritization schedules for broadband deployment projects in a technology-neutral manner in accordance with this section.
  5. The authority shall establish guidelines and standards for applying for and approving grants from the broadband deployment fund. An eligible applicant shall submit an application to the authority. An application for a grant shall contain any information the authority requires, including but not limited to:
    1. A geographic description of the broadband deployment project area, including whether the area is partially served;
    2. A description of the broadband deployment project, including facilities, equipment, total cost, timeframe for completion, and network capabilities, including minimum speed thresholds;
    3. Documentation of the applicant’s technical, financial, and managerial resources and experience to build, operate, and manage broadband serving citizens, households, and businesses in Kentucky;
    4. Documentation of the economic and commercial feasibility of the proposed broadband deployment project;
    5. The number of citizens, households, or businesses that would have new access to broadband as a result of the grant;
    6. The amount of matching funds the eligible applicant will contribute and a certification that no portion of the matching funds is derived from any state or federal grant received for the purpose of funding broadband infrastructure within the project area; and
    7. A certification that none of the funds provided by the program for the project in the application will be used to extend or deploy facilities to any currently served citizens, households, or businesses.
  6. The authority shall make the applications available to the public within five (5) business days of the deadline for submission of applications, provided the information contained within an application is not exempt from disclosure under the provisions of the Open Records Act, KRS 61.870 to 61.884 . The description of the geographic scope of the broadband deployment project area shall not be exempt under the Open Records Act, KRS 61.870 to 61.884 , and shall be made available to the public within five (5) days after submission of the application.
  7. As part of the grant application process, pursuant to subsection (3) of this section, the authority shall include an opportunity for a broadband service provider to challenge the application. As part of the dispute process, the authority may consider any relevant geospatial data available from a broadband service provider or grant applicant. Geospatial data may include but is not limited to shapefiles detailing broadband coverage, the most current Federal Communications Commission Form 477 fixed broadband deployment data reporting, or other documentation of broadband deployment infrastructure in the project area to show that a challenged project area is underserved or unserved. A challenging provider may provide the authority with proof, including but not limited to:
    1. The broadband deployment project area is currently served or is under construction for provision of broadband service within twelve (12) months of the challenge; or
    2. The applicant has received funds from another state or federally funded grant program designed to encourage broadband deployment in the area.
  8. Upon a determination that an application meets the funding criteria, but the proposed project area is found to be partially served, the authority may amend the application and grant partial funding based on the partial service provided in order to ensure that grant funds are used to only provide broadband service to citizens, households, or businesses deemed underserved or unserved.
  9. No funds shall be used to support any broadband deployment project involving the upgrade of an existing facility or for non-capital expenses, non-broadband services, marketing, or advertising. The broadband deployment project area shall be described by census block including the specific addresses to be serviced or by shapefile geospatial data.
  10. Grant applicants shall pay a minimum of fifty percent (50%) of the project cost which shall not include any matching funds received from federal or state government grants for broadband deployment in the project area.
  11. Moneys in this fund shall not be used by or transferred to the Kentucky Communications Network Authority.
  12. To carry out the purposes of this section, the authority shall promulgate administration regulations in accordance with KRS Chapter 13A. Within one hundred eighty (180) days of July 15, 2020, the authority shall promulgate regulations to implement the provisions of this section and KRS 224A.011 , 224A.110 , and 224A.112 and govern the submission, review, and approval of applications and the administration of broadband deployment projects. The authority shall not promulgate any regulations that place obligations on the applicants that are more restrictive than applicable federal or state law. Except as otherwise provided in this section, all of the authority’s records relating to the broadband deployment fund shall be deemed confidential unless disclosure is required under the provisions of the Open Records Act, KRS 61.870 to 61.884 .

History. Enact. Acts 2006, ch. 134, § 3, effective July 12, 2006; 2020 ch. 72, § 4, effective July 15, 2020.

224A.113. Power to promulgate administrative regulations.

The authority may promulgate administrative regulations to implement KRS 224A.111 , 224A.1115 , and 224A.112 .

History. Enact. Acts 1988, ch. 124, § 15, effective March 31, 1988; 1994, ch. 373, § 9, effective July 15, 1994; 1998, ch. 69, § 76, effective July 15, 1998; 2000, ch. 529, § 20, effective July 14, 2000.

224A.120. Authority may issue revenue bonds.

  1. The authority may provide, at one (1) time or from time to time, for the issuance of its Kentucky Infrastructure Authority revenue bonds, for the purpose of providing funds and moneys to the authority to enable it to enter into assistance agreements with governmental agencies, acquire and lease infrastructure projects, to governmental agencies, purchase or refinance obligations of governmental agencies issued for infrastructure projects and make loans or grants for infrastructure projects, and to enable the authority generally to carry out and effectuate its proper corporate purposes. In anticipation of the issuance of the revenue bonds, the authority may provide for the issuance at one (1) time, or from time to time, of revenue bond anticipation notes pursuant to the general laws of the state. The principal of and the interest on the revenue bonds or notes shall be payable solely from authority revenues. Any such notes may be made payable from the proceeds of bonds or renewal notes, or in the event bond or renewal note proceeds are not available, or should the authority deem it financially practicable to pay the notes directly from authority revenues, the notes may be paid from any available authority revenues. Prior to the issuance of the bonds or notes, the authority shall submit any proposed issue to the Capital Projects and Bond Oversight Committee for its review and determination in accordance with the provisions of KRS 45.810 .
  2. The revenue bonds or notes of the authority shall be dated and may be redeemable prior to maturity at the option of the authority at prices and under terms and conditions determined by the authority. Any bonds or notes shall bear interest at the rate or rates, shall be payable annually or at shorter intervals, and may bear conversion privileges determined by the authority. Notes shall mature at the time or times not exceeding five (5) years from their date or dates, and revenue bonds shall mature at the time or times not exceeding forty (40) years from their date or dates as may be determined by the authority. The authority shall determine the form and manner of execution of the bonds or notes, and shall fix the denomination or denominations and the place or places of payment of principal and interest, which may be any bank or trust company within or without the state. In case any officer of the authority whose signature or facsimile of whose signature shall appear on any revenue bonds or notes, shall cease to be such officer before the delivery thereof, the signature or the facsimile shall be valid and sufficient for all purposes, the same as if the officer had remained in office until the delivery. At the time of issuance of variable rate revenue bonds, the authority may designate individuals or institutions which, in the sole judgment of the authority, have financial market expertise to serve as agent for the authority for establishing and changing from time to time, while the variable rate revenue bonds remain outstanding, the rate of interest to be borne by and the price to be paid for the revenue bonds. The rate-setting procedures and authority of each agent shall be set forth in writing, and may include a formula or an index or indices based upon market factors, and shall be established by the authority at the time of issuance of the revenue bonds. At the time of the issuance of the revenue bonds, the authority shall establish the maximum interest rate to be borne by the revenue bonds. The authority shall retain the right to remove or replace any agent at any time and for any reason. The authority may provide that said bonds or notes may be executed only with the facsimile signatures of its officers, but said bonds or notes shall be executed with the manual signature of a bank or trust company designated by the authority as registrar and paying agent.
  3. All revenue bonds or notes issued under the provisions of this chapter shall have and are hereby declared to possess all of the qualities and incidents of negotiable instruments under the laws of the state. The authority may sell the revenue bonds or notes in the manner, either at public or private negotiated sale, and for the price, as it may determine will best effect the purpose of this chapter. If revenue bonds are sold at public, competitive sale, the revenue bonds shall be sold after newspaper advertising conforming to the requirements of KRS Chapter 424 and competitive bids for the sale of the revenue bonds shall be opened and read publicly by the authority at a designated place, day and hour, all of which shall be announced in the advertising made relative thereto.
  4. In its proceedings authorizing the issuance of revenue bonds or notes, the authority shall fix and determine contractual provisions with the bondholders relating to the receipt, allocation, pledging, and disbursement of authority revenues, and may enact and determine terms, conditions, and restrictions pursuant to which additional revenue bonds of the authority may be authorized and issued from time to time. The proceedings, determinations and enactments of the authority shall specify that the payment of principal of and interest on such authority revenue bonds and notes shall constitute a first charge and lien against some or all authority revenues before any authority revenues are used, applied, and disbursed for any other valid purposes of the authority, including the payment of operation and maintenance costs incident to the operation of the authority.
  5. The proceeds of all revenue bonds or notes shall be used solely for the purpose of enabling the authority to enter into assistance agreements with governmental agencies, to acquire and lease infrastructure projects to governmental agencies, to purchase or refinance obligations of governmental agencies issued for infrastructure projects, to make loans or grants to the governmental agencies for infrastructure projects, or for any purpose authorized in this chapter. Interest coming due on the revenue bonds or notes, for not to exceed three (3) years, together with a debt service reserve equal to two (2) times the maximum principal and interest requirements to come due during any fiscal year ending June 30, in connection with the revenue bonds or notes, may be capitalized from bond proceeds, it being determined and recognized that infrastructure projects, for which loans or grants are made, may in some cases not become fully revenue-producing for a period of time coincident with the construction period of the infrastructure projects. Revenue bond or note proceeds may also be utilized, used and applied for the payment of ordinary and necessary expenses in connection with issuance of the revenue bonds or notes, including, but not by way of limitation, a sum equal to any discount in the sale of revenue bonds or notes, if discount bids are authorized and permitted by the authority; administrative expenses, including the preparation of revenue bonds or notes, publication of notices, printing, and other costs; attorneys’ fees; and other ordinary and necessary costs of financing, including the payment of fees to fiscal agents for advice and assistance in the preparation and marketing of revenue bonds or notes.
  6. Prior to the preparation of definitive revenue bonds or notes, the authority may, under like restrictions, issue interim receipts or temporary bonds, exchangeable for definitive revenue bonds or notes when the revenue bonds or notes shall have been executed, and are available for delivery. The authority may also provide for the replacement of any revenue bonds or notes that shall have become mutilated or shall have been destroyed or lost. Revenue bonds or notes may be issued under the provisions of this chapter directly by the authority without obtaining the consent or acquiescence of any cabinet, division, commission, board, department, or agency of the state other than the Finance and Administration Cabinet, and without any other proceedings or the happening of any other conditions or things except as specifically required by this chapter and the provisions of the resolution or resolutions of the authority authorizing the issuance of the revenue bonds or notes.

History. Enact. Acts 1972, ch. 329, § 12; 1984, ch. 216, § 15, effective July 13, 1984; 1988, ch. 124, § 13, effective March 31, 1988; 1990, ch. 477, § 6, effective July 13, 1990; 1994, ch. 373, § 10, effective July 15, 1994.

224A.130. Trust indentures.

  1. In the discretion of the authority, any revenue bonds or notes issued under the provisions of this chapter may be secured by a trust indenture by and between the authority and a corporate trustee which may be any trust company or bank having the powers of a trust company within or without the State of Kentucky. Such trust indenture, or the resolution of the authority providing for the issuance of such revenue bonds or notes, may pledge or assign for the security of such revenue bonds or notes, all or any part of the totality of authority revenues received and to be received. Such trust indenture or resolution of the authority may contain such provisions for protecting and enforcing the rights and remedies of the bondholders as may be reasonable and proper, and not in violation of law, including, inter alia, covenants and provisions setting forth the duties of the authority in relation to the purposes to which revenue bond and note proceeds may be applied; the disposition or pledging of assets and authority revenues; and the custody, safeguarding, and application of all authority revenues. It shall be lawful for any bank or trust company incorporated under the laws of the state which may act as depository of the proceeds of revenue bonds, notes or of authority revenues, to furnish such indemnifying bonds, or to pledge such securities as may be required by such trust indenture or resolution of the authority. Any such trust indenture or authority resolution may set forth the rights and remedies of the bondholders and of the trustee, and may restrict the individual right of action by bondholders, where a trust indenture has been entered into. In addition to the foregoing, any such trust indenture or authority resolution may contain such other provisions as the authority may determine to be reasonable and proper for the further security of the holders of any revenue bonds or notes. All expenses incurred in carrying out the provisions of such trust indenture or bond proceedings may be treated as a part of the cost of operating the authority, and may be paid from authority revenues pledged or assigned to the payment of the principal of and the interest on revenue bonds or notes, or from any other funds properly available to the authority.
  2. Notwithstanding any other provision to the contrary, any such trust indenture or authority resolution shall provide that, except to the extent the rights afforded to bondholders by this section shall be enforceable and enforced by a trustee under a trust indenture rather than by the bondholders, any holder of revenue bonds or notes issued by the authority or any of the coupons appurtenant thereto, may, either at law or in equity, by suit, action, mandamus, or other proceedings, protect and enforce any and all rights generally arising under the laws of the state, or granted under this chapter, or under such trust indenture, or by the resolution of the authority authorizing the issuance of such revenue bonds or notes, and may specifically enforce and compel by mandamus the performance of all duties required by this chapter, or by such trust indenture, or such authority resolution, to be performed by the authority or by any officer or employee thereof, including, inter alia, the prompt and full enforcement of the terms and conditions of all assistance agreements, to which the authority is a party.

History. Enact. Acts 1972, ch. 329, § 13; 1994, ch. 373, § 11, effective July 15, 1994.

224A.140. Refunding bonds.

  1. The authority is hereby authorized to provide for the issuance of refunding revenue bonds or notes for the purpose of refunding any revenue bonds or notes then outstanding which shall have been issued under the provisions of this chapter, including the payment of any redemption premium thereon and any interest accrued or to accrue to the date of redemption of such revenue bonds or notes. The issuance and sale of such refunding revenue bonds or notes, the maturities and other details thereof, the rights of the holders thereof, and the rights, duties, and obligations of the authority in respect of the same, shall be governed by the provisions of this chapter which relate to the issuance of revenue bonds or notes, insofar as such provisions may be applicable.
  2. Refunding revenue bonds or notes may be sold or exchanged directly for outstanding revenue bonds or notes of the authority, and if sold, the proceeds thereof shall be applied, in addition to any other authorized purposes, to the purchase, redemption, or payment of such outstanding revenue bonds or notes. Pending the application of the proceeds of any such refunding revenue bonds, with any other available funds, to the payment of the principal, accrued interest, and any redemption premium on the revenue bonds or notes being refunded (and if so provided or permitted in the authority resolution authorizing the issuance of such refunding revenue bonds or notes, or in the trust indenture securing the same, to the payment of any interest on such refunding revenue bonds or notes and any expenses in connection with such refunding), such proceeds may be invested in direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by the United States of America which shall mature or which shall be subject to redemption by the holders thereof at the option of such holders not later than the respective dates when the proceeds, together with the interest accruing thereon, will be required for the purposes intended.

History. Enact. Acts 1972, ch. 329, § 14; 1990, ch. 477, § 7, effective July 13, 1990.

224A.150. Authority’s bonds are permissible investments.

Revenue bonds and notes issued by the authority under the provisions of this chapter are hereby declared and deemed to be securities in which all public officers and public bodies of the Commonwealth and its political subdivisions, all insurance companies, trust companies, banking associations, investment companies, executors, administrators, trustees, and other fiduciaries may properly and legally invest funds, including capital in their control or belonging to them. Such obligations of the authority are hereby declared and determined to be securities which may properly and legally be deposited with and received by any state or municipal officer or any agency or political subdivision of the state, for the purpose for which the deposit of bonds, notes, or obligations of the state is now, or may hereafter be, authorized by law.

History. Enact. Acts 1972, ch. 329, § 15.

224A.160. Authority’s bonds payable from revenue only.

Revenue bonds or notes issued by the authority under the provisions of this chapter shall not be deemed to constitute a debt of the Commonwealth or of any political subdivision thereof, or a pledge of the faith and credit of the Commonwealth or of any political subdivision thereof; but such bonds shall be payable as to principal and interest solely from authority revenues provided therefor under the provisions of this chapter. All such revenue bonds or notes shall contain on the face thereof a statement to the effect that neither the Commonwealth nor the authority shall be obligated to pay the same, or the interest thereon, except from authority revenues, as defined in this chapter; and that neither the faith and credit, nor the taxing power of the Commonwealth or any political subdivision thereof is pledged to the payment of the principal of and interest on such revenue bonds or notes.

History. Enact. Acts 1972, ch. 329, § 16.

224A.165. Reserve funds or replacement funds — Maintaining required level — Approval of General Assembly required for certain bond or note issuances.

  1. The authority may, in connection with the issuance of its revenue bonds and notes for the accomplishment of its public purposes pursuant to this chapter, establish in respect of the revenue bonds and notes reserve funds or replacement funds required in the sound discretion of the board of the authority in order to enable the authority to effectuate its proper public purposes, and to issue revenue bonds and notes in the most advantageous manner. If any reserve fund or replacement fund created by the authority in connection with any revenue bond issue or note issue should, in violation of any contract made by the authority with any bond holder or note holder, be monetarily deficient in any respect as of any date of accounting stipulated by the authority, the authority shall immediately make formal request in writing to the secretary of the Finance and Administration Cabinet, and to the Governor of Kentucky, that sums adequate to restore the reserve fund or replacement fund to its contractually required level and to pay any overdue principal and interest on any outstanding revenue bonds and notes of the authority be included in the next succeeding executive budget, and that the budget request be presented to the General Assembly of Kentucky with recommendation for approval by the General Assembly for payment to the authority for the use and benefit of the reserve fund or replacement fund.
  2. If the provisions of KRS 56.870(3) are determined to apply to a revenue bond or note, and if the proceeds of the bond or note are made available to a governmental agency or private entity, and if the debt is not fully guaranteed by the United States government or secured by a nationally recognized entity authorized to issue guarantees and rated in the highest rating category by at least one (1) of the nationally recognized rating services, the authority shall obtain approval from the General Assembly in accordance with the provisions of KRS 56.870(1) prior to the issuance of the bonds or notes. Notwithstanding the foregoing, no such approval shall be required for the following issues of bonds or notes:
    1. Refunding bonds or notes which are issued for the purpose of achieving debt service savings and which do not extend the term of the refunded bonds;
    2. Bonds or notes if the aggregate principal amount of the bonds or notes outstanding under any trust indenture or bond resolution does not exceed the sum of five hundred million dollars ($500,000,000).

The incremental amount of principal debt incurred by issuing refunding bonds or notes which are issued for the purpose of achieving debt service savings and which do not extend the term of the refunded bond or note shall not be subject to the limits defined in paragraph (b).

History. Enact. Acts 1974, ch. 336, § 6; 1990, ch. 477, § 8, effective July 13, 1990; 1994, ch. 53, § 5, effective July 15, 1994; 2003, ch. 38, § 3, effective June 24, 2003.

224A.170. Authority’s money deemed to be trust fund.

Notwithstanding any other provisions of law to the contrary, all moneys, funds, properties, and assets acquired by the authority, pursuant to this chapter, whether as proceeds from the sale of authority revenue bonds or notes, or as authority revenues, or otherwise, shall be deemed to be trust funds, to be held and applied solely as provided by this chapter; and same shall be held by the authority in trust for the purposes of carrying out its powers and duties and for the payment of the authority’s revenue bonds or notes, both as to principal and interest, and shall be used and reused as provided in this chapter and shall at no time be deemed to be public funds of the Commonwealth, or of any agency or department thereof. The resolutions of the authority authorizing any revenue bonds or notes, or any trust indenture securing the same, may provide that any such moneys, funds, properties, and assets may be temporarily invested pending the disbursement thereof, and shall provide that any officer with whom, or any bank or trust company with which, any moneys shall be deposited, shall act as trustee of such assets and shall hold and apply the same for the purposes of this chapter, subject to such conditions, restrictions, requirements, limitations, and mandatory investment procedures and requirements as this chapter, and such authorizing resolutions of the authority, or trust indenture, may provide. Any such moneys, funds, properties, and assets or any other moneys of the authority may be invested as provided by KRS 386.020 , in addition to such provisions for investment as may be enacted by resolution of the authority.

History. Enact. Acts 1972, ch. 329, § 17.

224A.180. Enforcement powers of authority in the event of default.

  1. In order to protect the public health, safety, and welfare, and in order to assure the prompt and necessary payment to the authority of all monetary requirements arising from assistance agreements entered into by and between the authority and the governmental agencies, and thereby assure the financial integrity of the authority, and the prompt payment of principal of and interest on revenue bonds and notes issued by the authority, the authority is specifically authorized, if any governmental agency which is a party to an assistance agreement fails to promptly and duly perform all of the terms and conditions of the assistance agreement, to directly impose, in the authority’s name and for the authority’s benefit, service charges upon all users of the eligible project constructed pursuant to such assistance agreement, and to proceed to directly enforce and collect such service charges, together with all necessary costs of the enforcement and collection, in the name of the authority and for the benefit of the authority.
  2. In addition to the powers conferred by subsection (1) of this section, the authority may, upon the occurrence of any event of default by such governmental agencies, mandatorily require the owner, tenant, or occupant of each and every lot or parcel of land which abuts upon a street or other public way containing a sanitary sewer or drinking water facility, and upon which lot or parcel of land an improvement exists for residential, commercial, or industrial use, or where a sanitary sewer or drinking water facility is reasonably available to serve such improved lot or parcel of land, to forthwith connect such improvement to the sanitary sewer or drinking water facility and to cease to use any other means for the disposal of sewage, sewage waste, or other pollutants.
  3. In the implementation of its enforcement authority, the authority shall have and possess all of the powers of incorporated municipalities which are granted by KRS 96.930 to 96.943 , providing for the termination of water services to any premises where the bill for sewer services is delinquent.
  4. The authority is further expressly authorized and empowered by suit, action, mandamus, or other proceedings, to compel performance by governmental agencies of all of the terms and conditions of assistance agreements, including, inter alia, the adjustment and increase of service charges as required to meet the needs of any assistance agreement, and the enforcement and collection of such service charges.
  5. In addition to the powers conferred by subsection (1) of this section, the authority may upon the occurrence of any event of default by such governmental agency, and without the consent of the governmental agency, place a system in receivership.

History. Enact. Acts 1972, ch. 329, § 18; 1988, ch. 124, § 14, effective March 31, 1988; 1994, ch. 373, § 12, effective July 15, 1994.

224A.190. Imposition of service charges by local governmental agencies.

  1. Each governmental agency which has entered into an assistance agreement with the authority whereby such governmental agency has covenanted to impose service charges and remit same to the authority, shall, as provided in such assistance agreement, at the due time impose such service charges, use and employ all of such governmental agency’s power and authority to enforce and collect such service charges, including requiring termination of water service to any delinquent user, and promptly remit the amounts collected as representing service charges from its users directly to the authority. All such service charges shall be remitted to the authority with a report showing collections and any delinquencies, such report to be made on or before the twentieth day of the month following the payment of such service charges.
  2. All sums received by the authority as representing service charges generated by assistance agreements shall constitute authority revenues and shall be used, treated, and employed by the authority in accordance with the provisions of this chapter.
  3. In the event, for any reason, the schedule of service charges levied by the governmental agency in accordance with an assistance agreement shall prove to be insufficient to afford repayment to the authority of the minimum sums stipulated in KRS 224A.100 , in accordance with the agreed repayment schedule, the authority shall forthwith advise the governmental agency, and the governmental agency shall promptly adjust such service charges so as to provide funds sufficient for such payments to the authority in accordance with the terms and conditions of the assistance agreement. As provided in this chapter, the authority may compel any such governmental agency to adjust such service charges to meet the requirements of any assistance agreement, or may proceed to adjust, levy, and collect such service charges itself, in the name of the authority, and for the benefit of the authority, such direct levies and collections to additionally provide sums sufficient for the costs of levying, billing, and collecting such service charges.

History. Enact. Acts 1972, ch. 329, § 19.

224A.200. Assistance agreements may contain provision for reduction of payments to authority.

The authority, as provided in KRS 224A.060 , is created and constituted as an independent taxing district and taxing authority with the right to levy in its own name and for its proper public and essential governmental purposes a water utility tax on every purchase of water service in the Commonwealth of Kentucky in an amount equal to not more than two percent (2%) of the gross amount of each such water bill. Any assistance agreements entered into by and between the authority and governmental agencies may provide by their terms that service charges levied by governmental agencies for payment to the authority in accordance with this chapter, may be reduced, diminished or extinguished to the extent that the authority has, during any fiscal period of the authority, levied and collected water utility taxes pursuant to this chapter, or to the extent that other authority revenues have been received by the authority, or to maximize federal grant participation in the state, such reduction, diminution or extinguishment of service charges to be based upon formulas, procedures, and other rules and regulations which shall be prescribed by the authority from time to time pursuant to its power to make, promulgate, and enact rules, regulations and bylaws; provided, however, that such adjustment agreement shall not void, abate or render nugatory any other provisions of any assistance agreements.

History. Enact. Acts 1972, ch. 329, § 20.

224A.210. Tax-exempt nature of authority property and bonds.

  1. The exercise by the authority of the powers, duties, and responsibilities granted and created by this chapter will be in all respects for the benefit of the citizens of the state, for the preservation, improvement, and enhancement of their health, safety, convenience, and welfare, for the enhancement of their residential, agricultural, recreational, economic, commercial, and industrial opportunities, and for the preservation of the natural resources of the state, and will thereby constitute the performance of essential public purposes and governmental functions by the authority.
  2. As the authority will in all respects be performing essential governmental and public functions, said authority shall not be required to pay any taxes or assessments upon any of its property, real, personal, or mixed, nor upon the income therefrom, and revenue bonds or notes issued under this chapter, the income thereon, and the transfer thereof, including any profit made on the sale thereof, shall at all times be exempt from taxation or assessment of any type by the state, its agencies and cabinets, and by all political subdivisions within the state.

History. Enact. Acts 1972, ch. 329, § 21.

224A.220. General obligation bond issue for authority. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1972, ch. 329, § 22) was repealed by Acts 1990, ch. 477, § 9, effective July 13, 1990.

224A.230. Immunity of authority member or officer.

No member or other officer of the authority shall be subject to any personal liability or accountability by reason of his execution of any revenue bonds or notes, or the issuance thereof.

History. Enact. Acts 1972, ch. 329, § 23.

224A.240. Self-dealing prohibited.

No member, officer, or employee of the authority shall be financially interested, directly or indirectly, in any contract of any person with the authority, or have an ownership interest in any firm or corporation interested directly or indirectly in any contract with the authority.

History. Enact. Acts 1972, ch. 329, § 24.

224A.250. Public nature of meetings and records — Exception for trade secrets.

All meetings of the authority shall be public, and the records of the authority shall be open to public inspection at all reasonable times except as otherwise provided in this section. All final actions of the authority shall be journalized, and such journal shall also be open to the inspection of the public at all reasonable times. Any records or information relating to secret processes or secret methods of manufacture or production which may be obtained by the authority, acting in its public and governmental capacity, shall be confidential and shall not be disclosed.

History. Enact. Acts 1972, ch. 329, § 25.

224A.260. Authority may finance pollution control facilities.

  1. The Kentucky Infrastructure Authority may finance pollution control facilities in the manner provided by KRS 103.246 . For such purposes, the terms “city” and “county” as used in KRS 103.246 shall also mean and refer to the Kentucky Infrastructure Authority.
  2. The authority may enter into the agreements with the United States Small Business Administration as shall be necessary in connection with the financing of pollution control facilities in order to provide for the guarantee of bonds or notes of the Kentucky Infrastructure Authority by the United States Small Business Administration.
  3. The authority granted to the Kentucky Infrastructure Authority by this section shall not include the power to acquire property, rights-of-way or easements by condemnation.
  4. Neither the Kentucky Infrastructure Authority nor the state or any political subdivision of the state shall be pecuniarily responsible or liable in any manner for the payment of principal of and interest on bonds or notes issued by the authority under this section. The bonds or notes shall be payable solely from revenues, receipts and payments derived from the lease, sale or vesting of the pollution control facilities in and to industrial concerns and utility companies with whom the authority contracts.

History. Enact. Acts 1978, ch. 97, § 1, effective June 17, 1978; 1984, ch. 216, § 16, effective July 13, 1984; 1988, ch. 124, § 16, effective March 31, 1988.

Opinions of Attorney General.

The provisions of KRS 56.873 do not apply to pollution control and industrial development issues of the Kentucky pollution abatement authority and the Kentucky development finance authority, in cases where the bonds do not constitute a financial obligation, either direct or indirect, of such authorities, but are payable solely and only from private sources and where, consequently, no appropriation of state funds will or can ever be required. OAG 80-591 .

224A.270. Solid waste revolving fund — Uses. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 477, § 3, effective July 13, 1990; 1991 (1st Ex. Sess.), ch. 12, § 11, effective February 26, 1991; 1994, ch. 138, § 1, effective July 15, 1994) was repealed by Acts 2002, ch. 342, § 18, effective July 15, 2002. For present law, see KRS 224.43-505 .

224A.280. Solid waste grant program. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 477, § 4, effective July 13, 1990; 1991 (1st Ex. Sess.), ch. 12, § 12, effective February 26, 1991; 1994, ch. 138, § 2, effective July 15, 1994) was repealed by Acts 2002, ch. 342, § 18, effective July 15, 2002.

224A.290. Short title. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 477, § 1, effective July 13, 1990) was repealed by Acts 2002, ch. 342, § 18, effective July 15, 2002. For present law, see KRS 224.43-505 .

224A.300. Findings and goals of General Assembly regarding provision of water services in the Commonwealth — Transfer of responsibility — Administrative regulations.

  1. The General Assembly finds that it is necessary to encourage regionalization, consolidation, and partnerships among governmental agencies, and private parties when appropriate, with the goal of making potable water and wastewater treatment available to all Kentuckians through the maximization of financial resources and the conservation of natural resources of the Commonwealth. Based on these findings, the General Assembly declares that the Kentucky Infrastructure Authority shall implement a program for the provision of water services as authorized in the budget and directed by the General Assembly.
  2. The authority shall be responsible for the management and operation of the Water Resource Information System. The authority shall maintain and, at least annually, update the information contained in this system to ensure its accuracy.
  3. The authority may request all branches of state and local government, including special districts and water districts, to provide information relating to the status of existing plants, the financial condition of existing systems, and the existing regulatory authority held by agencies of government regarding the issue of water resource development and management. All branches of state and local government shall, to the extent reasonable and appropriate, comply with such requests for information.
  4. The authority shall promulgate administrative regulations that require a water supply and distribution system receiving or seeking funding to provide current information regarding the financial, managerial, and technical aspects of its system and, thereafter, to furnish updates to the information so provided.

History. Enact. Acts 2000, ch. 529, § 1, effective July 14, 2000; 2007, ch. 47, § 90, effective June 26, 2007.

224A.302. Establishment of 2020 water management areas by area development districts.

Within twelve (12) months of July 14, 2000, each area development district shall establish 2020 water management areas. The entire area within the area development district shall be included in one (1) or more 2020 water management areas. The area development district may determine the boundaries of water management areas by considering geographical or topographical conditions and the potential integration of existing water systems. Where water management areas may lie within more than one (1) area development district, the area development districts shall share planning and plan implementation responsibilities. The area development districts shall develop maps of uniform scale to show, accurately and clearly, the boundaries of the 2020 water management areas.

History. Enact. Acts 2000, ch. 529, § 2, effective July 14, 2000.

224A.304. Establishment of water service account within infrastructure revolving fund.

A 2020 water service account is established within the infrastructure revolving fund. The purpose of the account shall be to assist in making potable water available to all Kentuckians by the year 2020. The authority shall manage the account as funding is authorized by the General Assembly and in a manner to achieve the purposes set out in KRS 224A.300 .

History. Enact. Acts 2000, ch. 529, § 7, effective July 14, 2000.

224A.306. Conditions for receiving assistance from fund for water-related infrastructure projects.

  1. The authority shall require the following as conditions for receiving assistance from any fund administered by the authority for infrastructure projects related to water service:
    1. Establishment and use of a financial accounting system that accounts for the operations of water treatment and distribution separately from all other operations of the applicant;
    2. Establishment of service rates based upon the cost of providing the service; and
    3. An agreement that the authority may require an audit to be conducted of the applicant at least once every two (2) years.
  2. The authority shall require all applicants within a class to use the same accounting system. The authority may accept present accounting systems in use and applied uniformly to all applicants within a class, for example, the uniform system of accounts established by the National Association of Regulatory Utility Commissioners.
  3. The authority may assist water providers to establish accounting systems that meet the requirements of this section. The authority may provide assistance by paying for third-party private contractors or assistance from the Kentucky Auditor of Public Accounts.
  4. The authority may pay for costs related to establishing a new uniform accounting system for the use of governmental agencies that merge or consolidate their water services if:
    1. The merging or consolidating entities use different accounting systems;
    2. The merger or consolidation is consistent with a 2020 water management planning council plan as reviewed and prioritized under KRS 151.607 ; and
    3. At least one (1) governmental agency water system is a partner in the merger or consolidation.
  5. The authority may fund the requirements of this section from the 2020 water service account.

History. Enact. Acts 2000, ch. 529, § 8, effective July 14, 2000.

224A.308. Establishment of program to detect water loss from distribution lines — Loans forgiven — Funding.

  1. The authority shall establish a program to assist governmental agencies in detecting water loss from distribution lines. The program may include contracting with third parties to conduct water loss audits and leak detection. The program may include giving low interest loans, on a priority basis established by the authority consistent with the findings and purposes set out in KRS 224A.300 , for the repair or replacement of distribution facilities, deemed reasonable by the authority, undertaken as a result of the water loss audit.
  2. The authority may forgive any amount of a distribution facility repair or replacement loan from the authority remaining unpaid if:
    1. Within five (5) years of entering into the loan agreement the governmental agency merges with or consolidates with at least one (1) other public or private water supplier; and
    2. The merger or consolidation is consistent with a 2020 water management planning council plan as reviewed and prioritized under KRS 151.607 .
  3. The authority may fund the requirements of this section from the 2020 water service account.

History. Enact. Acts 2000, ch. 529, § 9, effective July 14, 2000.

224A.310. Establishment of incentive programs to encourage consolidation of water systems and elimination of duplication.

  1. The authority shall establish an incentive program that allocates funds from the 2020 water service account in a manner that encourages the regionalization, merger, and consolidation of water systems and elimination of structural and administrative duplication. The incentive funds may be used by government owned and private systems.
  2. The incentive program shall target water systems that have high debt, inadequate operational and maintenance resources, high maintenance costs, old and inadequately maintained treatment works, a history of violations of the Division of Water’s statutes and administrative regulations due to inadequate operational and maintenance resources, or insufficient financial resources to extend system service to unserved or underserved areas.
  3. In developing the incentives to encourage governmental agencies to merge, regionalize, consolidate, and partner with target systems, the authority shall give the highest funding priority to those projects which have been identified in a 2020 water management planning council plan prioritized under KRS 151.607 and meet the funding priorities established by the authority.

History. Enact. Acts 2000, ch. 529, § 12, effective July 14, 2000.

224A.312. Incentive program encouraging infrastructure projects that provide and improve water service to needy areas — Funding priorities.

  1. The authority shall develop an incentive program that allocates funds from the 2020 water service account to encourage new infrastructure projects to provide service to unserved areas and improve service to underserved areas of the state. The incentives may be used by government owned and private systems.
  2. The incentives shall be developed to give the highest funding priority to those projects that have been identified in a 2020 water management planning council plan prioritized under KRS 151.607 and meet the funding priorities established by the authority.

History. Enact. Acts 2000, ch. 529, § 13, effective July 14, 2000.

224A.314. Study of water resource potential of underground coal mines and high yield water wells — Funding for study.

The authority may enter into a contract with the Kentucky Geological Survey for the purpose of continuing and expanding the identification and study of the water resource potential of underground coal mines and high yield water wells. The authority may fund the study from the 2020 water service account.

History. Enact. Acts 2000, ch. 529, § 14, effective July 14, 2000.