The April meeting of the Administrative Regulation Review Subcommittee was held on Wednesday, April 12, 2000 at 10:00 AM, in Room 131 of the Capitol Annex. Representative John Arnold, Chair, called the meeting to order, and the secretary called the roll.

Present were:

Members: John Arnold, Chairman; Senators Marshall Long, Richard Roeding, and Joey Pendleton; Representatives Woody Allen, James Bruce and Jimmie Lee

Guests: Mark Brengelman, AOG's Office, Board of Dentistry and Board of Physical Therapy; Nathan Goldman, Board of Nursing; Nancy Brinly, Board of Physical Therapy; Jim Grawe, Danna Droz, Board of Podiatry; James E. Bickford, Katie Ashcraft, Mark York, Heather Frederick, Bruce Williams, Mark D. Mangeot, Barbara Foster, Brenda G. Lowe, Bob Ware, Jack Wilson, Jim Villines, Carl Campbell, Natural Resources and Environmental Protection Cabinet; Mark Farrow, Department of Agriculture; Steve Durham, Brenda Priestley, Keith Hardison, Tamela Biggs, Robert Powell, Department of Corrections; Charlie Harman, Transportation Cabinet; Judy Walden, Department of Housing, Buildings and Construction; Teresa Goodrich, Regina Oney, Carol Stange, Dionna Burchett, Martha B. Graves, Tonya Chang, Sharon Potter West, Stuart Owen, Trish Howard, Cabinet for Health Services; Rosanne Barkley, Cabinet for Families and Children; Morris Hill, Allen Chambers, Todd Wright, Tyson Foods; Charlene Powell; Anthony Pescatore; Dennis O. Liptrop; Carole Knoblett, Ronny Pryor, Kentucky Poultry Federation; Lynde Hughes; David G. Jurgens; Nancy Butler; Mike Ovesen, Kentucky's Pork Producers; Louis B. Lawson, Hardin County Jail; John Schickel, Boone County Jail; Gary Sewell, Jail Standards Commission; Jim Carloss, Kentucky Association of Realtors; Judith Villines; Roger Recktenwald, KIA; Rebeckah Freeman, Sam Crawford, Kentucky Farm Bureau; Mike Rodman, KAHCF.

LRC Staff: Dave Nicholas, Stephen Lynn, Edna Lowery, Susan Wunderlich, Angela Phillips, Ellen Benzing, Donna Valencia, Peter Jakubiak, Biff Baker.

Press:

The Subcommittee determined that the following administrative regulations, as amended by the promulgating agency and the Subcommittee, complied with statutory requirements:

Board of Dentistry

201 KAR 8:006. Advertising of dental services. Mark Brengelman, Assistant Attorney General, represented the Board.

In response to a question by Representative Bruce, Mr. Brengelman stated that: (1) the Board had some problems with false advertising by dentists; (2) dentists were expanding their services; and (3) the Board needed to amend this administrative regulation to firmly prevent false advertising.

This administrative regulation was amended as follows: (1) the RELATES TO paragraph was amended to correct statutory citations; (2) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220(3)(f); and (3) Sections 1, 2, 3, and 5 were amended to comply with the: (a) formatting requirements of KRS 13A.222(4); and (b) drafting requirements of KRS 13A.222(4).

201 KAR 8:130. X-rays by dental assistants. In response to a question by Chairman Arnold, Mr. Brengelman stated that: (1) the requirement that a technician wear a radiation detection badge was not a Board requirement, but may be an OSHA requirement; and (2) this administrative regulation mandated the training and experience that a technician needed to become qualified to take x-rays.

This administrative regulation was amended as follows: (1) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220(3)(f); and (2) Section 1 and 3 were amended to comply with the: (a) formatting requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4).

201 KAR 8:220. Clinical examination. This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to correct statutory citations; (2) Section 2(5) was amended to cross reference appellate rights established in KRS Chapter 13B; and (3) Sections 1 and 2 were amended to comply with the drafting requirements of KRS 13A.222(4).

201 KAR 8:277. Written and clinical application grade requirements. This administrative regulation was amended as follows: (1) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to clearly state the necessity for and function served by this administrative regulation, as required by KRS 13A.220(3)(f); and (2) Section 3 was amended to comply with the drafting requirements of KRS 13A.222(4).

201 KAR 8:390. General anesthesia, deep sedation, and conscious sedation by dentists. In response to a question by Chairman Arnold, Mr. Bringelman stated that the: (1) requested permit fee would increase from $15.00 to $50.00; and (2) fee had not been increased since 1987.

This administrative regulation was amended to change the edition dates of the material incorporated by reference.

Board of Nursing

201 KAR 20:370. Applications for licensure and registration. Nathan Goldman, General Counsel, represented the Board.

This administrative regulation was amended as follows: (1) Section 4 was amended to comply with the format requirements of KRS 13A.220(5); and (2) Section 5 was amended to comply with the format requirements of KRS 13A.2251(2).

Board of Physical Therapy

201 KAR 22:135. Fees. Nancy Brinly, Executive Director, represented the Board.

Ms. Brinly stated that: (1) the Federation of State Board of Physical Therapy owned the licensure examination; (2) the Federation was doing a new job analysis to update the examination; and (3) the fee increase reflected the costs that went to the company administering the examination.

This administrative regulation was amended as follows: (1) the NECESSITY, FUNCTION, AND CONFORMITY paragraph was amended to correct a statutory citation; and (2) Sections 1 and 2 were amended to comply with the format requirements of KRS 13A.220.

Board of Podiatry

201 KAR 25:031. Continuing education. Danna Droz and Jim Grawe, Assistant Attorney General, represented the Board.

This administrative regulation was amended as follows: (1) Section 4(2)(b) was amended to require that a request for a waiver of the continuing education requirement be accompanied by a letter from the applicant’s or immediate relative’s personal physician; (2) Section 5 was amended to: (a) specify that an application for inactive status be made by written letter to the board; (b) correct KRS 13A.222 drafting errors; (c) specify that an applicant for relicensure complete a License Renewal Form and pay the renewal fee of $150 and a reactivation fee of $100; and (d) specify that a licensee who has been on inactive status for more than five (5) years complete an Application for Examination; and (3) a new section was created to incorporate by reference the required material.

Natural Resources and Environmental Protection Cabinet: Department for Surface Mining Reclamation and Enforcement: Special Performance Standards

405 KAR 20:060. Steep slopes. Carl Campbell, Commissioner, and Jim Villines represented the Department.

In response to questions by Senator Roeding, Mr. Campbell stated that: (1) a steep slope was anything above a 20 degree angle; (2) this type of mining method was not like mountaintop removal; (3) this method of mining allowed a variance in putting the land back into approximate original contour; (4) the approximate contour was to get the post-mining consideration as close as possible to the pre-mining configuration of the land before it was mined; (5) this would allow for some variances for roads; (6) this administrative regulation was also being amended to update it to the federal requirements; and (7) this administrative regulation was different from mountaintop removal.

This administrative regulation was amended as follows: (1) the STATUTORY AUTHORITY and RELATES TO paragraphs were amended to insert a citation to KRS 817.107; and (2) Sections 1 through 3 were amended to make minor technical changes to comply with the formatting and drafting requirements of KRS 13A.222(4).

Transportation Cabinet: Department of Vehicle Regulation: Division of Motor Carriers

601 KAR 1:018. Special overweight or overdimensional permits. Charlie Harman represented the Cabinet.

In response to questions by Senator Roeding, Mr. Harman stated that: (1) this administrative regulation applied to anyone who hauled anything over 80,000 pounds on interstate highways; (2) a business that hauled that amount on a regular basis could obtain an annual permit; (3) if that amount was rarely hauled, a business could obtain a single trip permit; (4) a devisable load was a load that could be readily and easily divided; (5) recently, a company moved a piece of equipment from Ohio to Louisville, Kentucky that required a 77 foot trailer to move; (5) the item weighed 400 tons; (6) previously the Cabinet had eleven administrative regulations for different items being hauled; (7) all of these subjects had been incorporated into one administrative regulation; and (8) the permit fee was different based upon the item being hauled.

In response to questions by Representative Bruce, Mr. Harman stated that farmers: (1) were exempt from the hauling requirements in this administrative regulation; and (2) had a permit fee, but it was not addressed in this administrative regulation.

This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to correct statutory citations; and (2) Sections 1, 2, 5, 8, 10, 11, 13, 14, 17, 19, and 21 were amended to comply with the drafting requirements of KRS 13A.222(4).

Cabinet for Health Services: Department for Medicaid Services: Division of Long Term Care: Medicaid Services

907 KAR 1:023. Review and approval of selected therapies as ancillary services in nursing facilities. Martha Graves, Regina Elliott, and Trish Howard represented the Cabinet.

This administrative regulation was amended as follows: (1) the RELATES TO paragraph was amended to correct statutory citations; (2) Sections 1 through 6 were amended to comply with the: (a) format requirements of KRS 13A.220(4); and (b) drafting requirements of KRS 13A.222(4); (3) Section 6 was amended to change the edition date of the material incorporated by reference; and (4) the material incorporated by reference was amended to revise the oxygen therapy criteria for pediatrics to: (a) change the oxygen saturation level required for billing as an ancillary service from 90% to 93% while breathing room air; and (b) change the partial pressure of carbon dioxide required for billing as an ancillary service for a pediatric resident whose condition prohibits evaluation of arterial oxygen saturation without supplemental oxygen from 70 millimeters of mercury to 65 millimeters of mercury.

Payment and Services

907 KAR 3:110 & E. Community mental health center substance abuse services. Carol Stange, Tonya Chang, and Dionna Burchett represented the Cabinet.

In response to questions by Senator Roeding, Ms. Chang stated that: (1) this administrative regulation paralleled the community mental health center benefit, whereby most outpatient mental health services were provided by: (a) community health centers; and (b) their subcontractors; (2) the administrative regulation went into great detail about who could be a subcontractor; (3) an individual provider affiliated with the community mental health center could be subcontractor; (4) people at the local health departments had to meet the requirements established in the administrative regulation; and (5) intensive outpatient and day rehabilitation service was covered under Section 4 of the administrative regulation.

In response to questions by Senator Roeding, Ms. Stange stated that: (1) intensive outpatient and day rehabilitation service were the same type of service as the intensive outpatient, only it was allowed to be provided in greater numbers of units because this is typically offered in a residential treatment setting of sixteen beds or less; (2) this provision made sure that persons received the same treatment if they were: (a) in residential treatment; and (b) getting intensive services; (3) a substance abuse prevention therapeutic risk reduction protocol general had an educational component; (4) this administrative regulation allowed a weekly summary note, rather than a progress note with every single patient contact; (5) the weekly summary note summarized: (a) the activities in which the patient had participated; (b) the clients overall reaction to the services; and (c) their progress in the treatment plan; and (6) this reduced the need to write 20-25 progress notes because of the intensity of the treatment.

In response to a question by Senator Roeding, Ms. Chang stated that the Department: (1) sent all of the providers a copy of this administrative regulation; (2) prepared a user-friendly handbook for the providers; and (3) did a statewide training program on how to meet the requirements of this administrative regulation.

This administrative regulation was amended as follows; (1) Sections 1 and 2 were amended to clarify the applicable time periods; (2) Section 3 was amended to correct a statutory citation; (3) Section 4 was amended to: (a) clarify that services shall be delivered as an individual or group service; and (b) increase the reimbursable number of hours for specified services; (4) Section 5 was amended to include psychologists in the list of providers of outpatient treatment; (5) Section 6 was amended to comply with the drafting requirements of KRS 13A.222(4); and (6) Section 7 was amended to change the list of qualified substance abuse professionals to parallel similar provisions in existing administrative regulations relating to substance abuse.

Cabinet for Families and Children: Department for Community Based Services: Division of Policy Development: K-Tap, Kentucky Works, Welfare to Work, State Supplementation

921 KAR 2:006 & E. Technical requirements for the Kentucky Transitional Assistance Program (K-TAP). Rosanne Barkley, Internal Policy Analyst, represented the Cabinet.

In response to a question by Representative Bruce, Ms. Barkley stated that she supervised other analysts who developed policy for: (1) K-TAP; (2) food stamps; (3) the family alternatives program; (4) the welfare to work program; and (5) different family support programs.

In response to questions by Senator Roeding, Ms. Barkley stated that: (1) the emergency under which this administrative regulation was filed occurred on October 1, 1999 when the federal regulations became effective; and (2) Kentucky: (a) implemented the federal requirements on October 1; and (b) would not lose any federal funds.

This administrative regulation was amended as follows: (1) the RELATES TO and STATUTORY AUTHORITY paragraphs were amended to correct statutory citations; and (2) minor typographical errors were corrected.

The Subcommittee determined that the following administrative regulations complied with statutory authority:

Board of Dentistry

Mark Brengelman, Assistant Attorney General, represented the Board.

201 KAR 8:286. Repeal of 201 KAR 8:285.

201 KAR 8:301. Repeal of 201 KAR 8:300.

201 KAR 8:381. Repeal of 201 KAR 8:380.

Natural Resources and Environmental Protection Cabinet: Department for Environmental Protection: Division of Water: Water Quality

401 KAR 5:011E. Repeal of 401 KAR 5:009. (Will Not Be Replaced By Ordinary) James Bickford, Director, Bob Logan, Commissioner, Department for Environmental Protection, and Bruce Scott, represented the Cabinet. Nancy Butler, farmer, and Rebecca Freeman, Kentucky Farm Bureau, appeared before the Subcommittee to speak in opposition to this administrative regulation and 401 KAR 5:072E.

Subcommittee staff stated that: (1) this was an emergency administrative regulation that repealed the Swine Feeding administrative regulation that the Subcommittee found deficient last year; and (2) after this administrative regulation expires, it would not be replaced with an ordinary administrative regulation.

401 KAR 5:072E. Concentrated animal feeding operations. Subcommittee staff stated that: (1) this emergency administrative regulation established new standards for concentrated animal feeding operations; (2) the Cabinet was in the public hearing process; (3) an ordinary administrative regulation should be filed in a month or two; (4) the emergency administrative regulation would expire August 18; (5) a regulation that was found deficient would expire at the adjournment of the next regular session of the General Assembly; (6) this administrative regulation: (a) was substantially different from 401 KAR 5:009; and (b) addressed swine, beef, and poultry; (7) 401 KAR 5:011E repealed 401 KAR 5:009; and (8) the Subcommittee could not: (a) amend an emergency administrative regulation; or (b) find an emergency administrative regulation deficient.

In response to questions by Representative Bruce, Secretary Bickford stated that: (1) currently, there were no cattle operations that would be effected by this administrative regulation; and (2) the Cabinet had met with: (a) the cattleman’s association; and (b) Representative McKee.

In response to questions by Senator Pendleton, Secretary Bickford stated that: (1) there were certain requirements by the EPA; (2) a tobacco settlement funded environmental cleanup program to which local entities could apply, would help; (3) he did not know the details of the proposed program; (4) he could not say for certain that these administrative regulations would not be needed; (5) the ordinary administrative regulation was going through the public hearing process; (6) the Cabinet: (a) was accepting comments on the administrative regulation at this time; and (b) would take those comments into consideration in effecting the ordinary administrative regulation; (7) this emergency administrative regulation was: (a) only temporary; and (b) already in effect; (8) the ordinary administrative regulation had to be in effect when the emergency administrative regulation expired on August 18; (9) the Cabinet would take under consideration all comments from both sides of the issue; and (10) the ordinary administrative regulation may be very different from the emergency administrative regulation.

Senator Pendleton stated that: (1) he thought the Cabinet’s consideration of comments would send a message that Kentucky is: (a) agriculture friendly; and (b) trying to protect the environment; (2) he thought it would be good to use part of the tobacco settlement money to establish a possible cleanup fund; and (3) he was not aware of major environmental problems in the past that had gone unaddressed.

Secretary Bickford stated that he would be glad to meet with members of the Subcommittee to address the issues.

In response to questions by Senator Roeding, Secretary Bickford stated that: (1) during the Fall and early Winter of 1999, the Cabinet had received complaints regarding waste problems occurring because of confined animal feeding operations; (2) the Cabinet: (a) looked at the problems; (b) saw tons of manure piled in fields running into the water system; (c) saw the damage being done to water quality; and (d) thought that was a serious concern; (3) the past week, the Cabinet received a complaint from a Hopkins County magistrate reporting an infestation of mice and rats coming from chicken houses that were being cleaned; (4) the mice and rats were entering into homes; (5) an estimated 30,000 mice and rats were in the one area; (6) several children were reported as ill; (7) Cabinet health service personnel were investigating; (8) the Cabinet considered this a serious problem; (9) Kentucky was not the only state to impose "integrator liability"; (10) the EPA expected all NPDS states to use integrator liability authority; (11) the Cabinet met with other states in EPA Region 4; (12) all of the states in that region were told that they would be required to have integrator liability; (13) the Cabinet believed that statutes permitted it to impose integrator liability; (14) he could provide copies of the statutes; (15) he did not think that these administrative regulations: (a) were more stringent than current federal requirements; and (b) put Kentucky farmers at an economic disadvantage; (16) the EPA would require integrator liability; (17) all states would have to comply with EPA requirements; (18) the EPA: (a) felt that they were authorized to require integrator liability based upon existing Federal regulations; and (b) quoted federal regulations that required integrator liability; (19) there were requirements for air quality in this administrative regulation; (20) they were studying the setbacks for the ordinary administrative regulation; (21) every setback, except one, came from the Agriculture and Water Quality Act; (22) the residential setback requirement was the only one that differed from the Agriculture and Water Quality recommendations; (23) the Cabinet would consider all comments in promulgating the ordinary administrative regulation; (24) the requirement of integrator liability would be applied to existing contracts; (25) Federal law required a contract renewal period of five years; and (26) none of the cattle operations currently in Kentucky were large enough to qualify under the criteria of this administrative regulation.

In response to a question by Senator Roeding, Subcommittee staff stated that: (1) the Subcommittee could not find an emergency administrative regulation deficient; and (2) the only thing that the Subcommittee could do was recommend that the Governor revoke the emergency.

In response to questions by Chairman Arnold, Secretary Bickford stated that: (1) the Cabinet did not think that this administrative regulation exceeded federal requirements; (2) the EPA guidance manual was based upon existing law; (3) the manual implemented existing federal law; and (4) the Cabinet had not exceeded the guidelines of the EPA.

Chairman Arnold stated that: (1) he thought that the Cabinet exceeded federal regulations; (2) he agreed with Senator Pendleton that Kentucky should be farm-friendly to help feed the nation and world; and (3) if administrative regulations made it difficult for a family to make a living, the Cabinet exceeded its authority.

In response to questions by Chairman Arnold, Secretary Bickford stated that: (1) the Cabinet was not interested in preventing concentrated feeding operations; (2) there was a problem with the huge amount of waste product that: (a) was produced; and (b) got into water sources; and (3) four chicken houses produced 600 tons of manure per year.

Representative Bruce stated that: (1) he thought: (a) the law required that there be no similar administrative regulation, if an administrative regulation was found deficient and expired; and (b) this was an attempt to get around the intent of the law; (2) members of leadership on the Subcommittee should consider correcting this problem during the next session; and (3) he wanted to see: (a) more proof of the requirements of the federal regulations; and (b) the problems with these administrative regulations worked out.

Secretary Bickford stated that he would be glad to provide more information on the federal requirements.

Ms. Butler stated that: (1) she was a McLean County farmer who co-owned and managed two poultry houses and a 180 acre family farm; (2) they raised corn, beans, dark tobacco, and burley tobacco; (3) she did not consider herself a "factory farmer" or "corporate farmer"; (4) she had never had anything to threaten her job, home, and future like these emergency administrative regulations; (5) they researched the poultry industry for over a year; (6) they could foresee the end of tobacco and considered poultry a good alternative; (7) in poultry, they saw an opportunity to produce something that would: (a) not be affected by weather; and (b) give a guaranteed, consistent income; (8) after four years and a sizable investment, the proposed administrative regulation changed everything; (9) the size of her operation did not require her to obtain a permit; (10) if she wanted to expand the operation, she would be affected; (11) this requirement would inhibit growth and expansion of small farms; (12) if she sold her operation, the value of the farm would be less if the proposed buyer could not expand, due to regulation; (13) she feared that these administrative regulations would affect animal agriculture much like the health-care reform affected insurance in Kentucky; (14) on March 13, the Agriculture and Small Business Committee heard testimony on House Bill 940; (15) before voting, one Representative reflected that no matter what regulations were in place, there would be people who failed to abide by them; (16) the Representative felt that: (a) stricter administrative regulations were not the answer; and (b) stricter enforcement was needed; (17) she agreed with that statement; (18) the proposed administrative regulations were more stringent than federal regulations; (19) Kentucky’s proposal reflected a 1,500 foot setback; (20) this would make it impossible for most farmers to build a litter storage shed, much less expand; (21) a litter storage shed for a two house poultry farm would cost about $18,000-20,000; (22) if the $1,200 permit charge every five years was added, the profit margin decreased; (23) with these and other criteria, Kentucky farmers were at an unfair disadvantage to other states; (24) there was no protection for the farmer to prevent someone else from moving to within: (a) 1,500 feet of her poultry houses; or (b) 75 feet of where she spread the litter; (25) she spoke to her agriculture-farm lender regarding the proposed administrative regulations; (26) the lender explained that the bank would have to reaccess the profit potential of poultry before loaning money for expansion; (27) with the permitting requirement every five years, there could be no guaranteed long-term loans past the permit period; (28) the income potential for the operation was affected from the lender’s point of view; (29) this lowered the equity of your borrowing power; (30) nobody could repay the full cost of starting up a poultry operation within five years; (31) the poultry specialties at the University of Kentucky, local agriculture extension agent, and executive director of the Kentucky Poultry Federation helped the farmers realize that the agriculture water quality plan would help: (a) them be better farm managers; and (b) help the environment; (32) most poultry farmers were already implementing best management practices, except for the mandatory litter storage shed; (33) at a cost of $18,000-20,000 for a shed, it was tough to comply; (34) it was obvious that this plan had little input from the farmer and environmentalists; (35) they could : (a) live with and implement the plan with a little help on the litter storage building; and (b) not live with the permits and regulations; (36) they needed guidance, and not punishment with permits and regulations; (37) the Cabinet should: (a) give the requirements that are already in place a chance to work; and (b) be able to implement the 1994 regulations before more administrative regulations were imposed; (38) with the 1,500 and 75 feet setbacks, she calculated that she could use poultry litter on 40 acres of her 180 acres; (39) when they entered the business, they looked at the value of litter along with what they would make from poultry; (40) using the litter for fertilizer saved the small farmer a lot of money; (41) they did not get a price break when they bought fertilizer, like those received by the larger farmers who bought in quantity; (42) it was obvious that these administrative regulations were written without input from farmers; (43) she did not feel that she had proper representation from her legislators, due to the emergency proceedings; (44) she was just trying to make a living as a farmer; (45) it would be nice to make a profit, which usually went back into expanding and upgrading her farm; (46) she hired two women who help her part-time on the farm because her husband and brother are employed full-time off the farm; (47) if it were not for poultry farming, she would have to drive about 50 miles roundtrip per day for employment; (48) she had two sons, aging parents, and a handicapped sister who lived on the farm with her; and (49) if something was not done now about agriculture, they might never have the opportunity again.

Senator Roeding stated that: (1) the Cabinet should: (a) look at the setbacks; and (b) help the farmer; and (2) it appeared that Kentucky was the only state to have corporate integrator liability.

Ms. Butler stated that: (1) she did not want or need a company to tell her how to: (a) spread litter; and (b) run her farm operation; (2) the chicken companies assisted her in managing the raising of the chickens that she raised for them; (3) the remainder of the farm was hers; (4) she did not want: (a) the chicken companies involved in the rest of her farm; and (b) to be told when and how to spread the litter; and (5) she had been: (a) doing that for a long time; and (b) doing it well.

Representative Bruce stated that: (1) he did not think that the Cabinet had the authority to impose liability; (2) only the General Assembly had the authority to impose legal liability; and (3) the Cabinet should check into whether they had that authority.

Senator Roeding stated that: (1) the requirement to build a permanent poultry litter storage building was an unfunded mandate to the farmers; (2) there were viable alternative storage measures approved by the EPA; and (3) the cost of a permanent storage building for the average farm would be: (a) a hardship on Kentucky farmers; and (b) cost in excess of $30,000.

In response to a question by Senator Roeding, Secretary Bickford stated that they had held four public hearings.

Senator Roeding requested that when the public hearings were held that the Cabinet send notice to Farm Bureau and others so that the public could make comment and have input on the administrative regulations.

Senator Pendleton stated that: (1) because of the cost of the litter sheds, they had discussed putting $18,000,000 of the tobacco settlement money into a cost share pool to help in construction of the sheds; (2) while they had the opportunity, they needed to take advantage of the settlement to try to help agriculture; and (3) the money would be going straight to the Cabinet so that they: (a) could have access immediately; and (b) would not have to wait for someone to pass judgment on a request for assistance.

Ms. Butler stated that: (1) she would appreciate the cost sharing pool; (2) because of the setbacks, she had no place to build a litter shed; and (3) the setbacks were a problem for many farmers.

Senator Pendleton stated that: (1) he hoped that the Cabinet would use common sense in promulgating these administrative regulations; (2) a litter shed should be located next to the poultry houses; and (3) he hoped that they would: (a) study this; and (b) not just require a setback because a building was there.

Representative Lee requested that when the Cabinet provided the requested information, that they also provide information on states which currently had administrative regulations requiring integrator liability.

Ms. Freeman stated that she would be willing to meet with Senator Roeding to answer some of the questions that he had raised.

The Subcommittee approved a motion to send a letter to the Governor requesting that these emergency administrative regulations be revoked.

Transportation Cabinet: Department of Vehicle Regulation: Division of Motor Carriers

601 KAR 1:017. Repeal of 601 KAR 1:015 and 601 KAR 1:016. Charlie Harman represented the Cabinet.

Department of Highways: Preconstruction

603 KAR 2:015. Prequalification for construction: certificate of eligibility and contract claims dispute. In response to a question by Representative Bruce, Mr. Harman stated that: (1) prequalification was required for engineering design firms that built roads for the state; (2) they had to follow a process to show that they were qualified by: (a) education; (b) experience; and (c) financial stability; and (3) a firm had to be prequalified to do state work.

Traffic

603 KAR 5:076. Repeal of 603 KAR 5:075 and 603 KAR 5:100, 603 KAR 5:105, 603 KAR 5:110, 603 KAR 5:112, 603 KAR 5:260, 603 KAR 5:270, 603 KAR 5:330.

Department of Housings, Buildings and Construction: Division of Building Codes Enforcement: Kentucky Building Code

815 KAR 7:105. Kentucky Building Code/1997. Judith Walden, General Counsel, represented the Department.

Heating, Ventilation, and Air Conditioning Licensing Requirements

815 KAR 8:010. Master heating, ventilation, and air conditioning (HVAC) contractor licensing requirements.

815 KAR 8:020. Journeyman heating, ventilation, and air conditioning (HVAC) mechanic licensing requirements.

Cabinet for Families and Children: Department for Community Based Services: Division of Policy Development: K-Tap, Kentucky Works, Welfare to Work, State Supplementation

921 KAR 2:500. Family alternative diversion (FAD). In response to questions by Senator Roeding, Ms. Barkley stated that: (1) this administrative regulation increased the eligibility period from three months to twelve months after a person stopped receiving welfare benefits; (2) employment retention assistance was a benefit to: (a) try to keep people working; and (b) prevent them from getting back on welfare; and (3) the assistance was for a twelve month period after they go off K-TAP.

The Subcommittee and promulgating administrative bodies agreed to defer consideration of the following administrative regulations to the May 9, 2000 meeting of the Subcommittee:

Personnel Cabinet: Classified

101 KAR 2:102E. Classified leave administrative regulations.

Unclassified

101 KAR 3:015E. Leave administrative regulations for the unclassified service.

Board of Pharmacy

201 KAR 2:045. Technicians.

201 KAR 2:230. Special limited pharmacy - central refill pharmacy.

Finance and Administration Cabinet: Commercial Mobile Radio Service Emergency Telecommunications Board

202 KAR 6:010E. Definitions for 202 KAR Chapter 6.

202 KAR 6:020E. CMRS carrier cost recovery.

202 KAR 6:030E. Confidential and proprietary information.

202 KAR 6:040E. Dispute resolution.

202 KAR 6:050E. PSAP certification.

202 KAR 6:060E. PSAP Pro Rata Fund disbursement.

Tourism Development Cabinet: Department of Fish and Wildlife Resources: Game

301 KAR 2:221E. Waterfowl seasons and limits.

301 KAR 2:222E. Waterfowl hunting requirements.

301 KAR 2:226E. Youth waterfowl hunting season.

Justice Cabinet: Department of Corrections: Jail Standards for Full-Service Facilities

Keith Hardison, Assistant General Counsel, Department of Corrections and Member, Jail Standards Commission, and Robert Powell, Director of Local Facilities, Department of Corrections, and Member, Jail Standards Commission, represented the Cabinet.

In response to comments by Senator Roeding and a question by Chairman Arnold, Subcommittee staff stated that: (1) amendments to the administrative regulations were largely formatting and drafting changes; (2) there were also substantive amendments which had been worked out with the Jail Standards Commission and its advisory committee; (3) the administrative regulations before the Subcommittee members were the administrative regulations as filed in June, 1999; (4) during the interim between filing and presentation at the Subcommittee meeting, proposed amendments were exchanged many times during negotiations between Subcommittee staff and the promulgating agency; (5) amendments are not incorporated into the administrative regulations until the Subcommittee passes the administrative regulations as amended; and (6) everything in the suggested amendments had been agreed upon by the Jailers' Association.

In response to a question by Senator Roeding, Subcommittee staff stated that the term "resident" was no longer in administrative regulations for Chapter 7.

In response to a question by Senator Long, Subcommittee staff stated that: (1) the administrative regulations as amended were as close to meeting the federal court requirements as could be achieved, considering all the parties involved; and (2) the amendment dealing with documentation of certain strip searches had been recently agreed upon, but a procedural problem remained.

Senator Roeding stated that jailers were in the audience who wished to address all of the administrative regulations.

Representative Lee stated that he was concerned about an administrative burden on big jails, like that in Hardin County, where a large number of prisoners were going back and forth to court all the time. He stated that the federal guidelines require that when prisoners are outside of the secure area, such as when they are going to court, some sort of search must be done when they are brought back, and documenting those searches would be an administrative nightmare. Mr. Powell responded that he agreed with that statement. Mr. Hardison responded that: (1) the proposed amendments for documentation were taken to the full Jail Standards Commission, which is made up of 50% county officials (jailers, magistrates, county judges) and 50% state officials (Corrections, legislature); (2) the Commission decided that Subcommittee the staff proposal would be too restrictive, for the reasons Representative Lee indicated, and it was rejected at that time; (3) yesterday afternoon, Jailer Harold Taylor, President of the Jailer's Association, came to an agreement with Subcommittee staff to add an amendment requiring documentation in very limited circumstances; (4) it was impossible to get the Commission's approval of the documentation requirement because of the 24-hour notice and agenda requirements of the Kentucky Open Meetings Act; and (5) he was thus unable to speak for the Commission because they had no opportunity to discuss the new language.

Boone Jailer John Schikel stated that it was his opinion that the full Commission needed to discuss the documentation requirements.

In response to a request from Senator Roeding, Mr. Hardison: (1) agreed to share the Department's internal, unofficial version of the administrative regulation, as tentatively amended, on an ongoing basis, at any time it was requested; (2) stated that he had sent the most recent version to Jailer Schikel; and (3) stated that charges are sometimes made right up to the last minute.

In response to a motion to defer from Representative Bruce, Mr. Hardison stated that it was his understanding that there was concern only about 501 KAR 3:120, 501 KAR 7:120, and 501 KAR 10:120. In response to comments from Senator Roeding and Chairman Arnold that concern was being expressed about all the administrative regulations, Mr. Hardison agreed to deferral of all the Title 501, Chapters 3, 7, and 10 administrative regulations under consideration. The Subcommittee voted unanimously to defer the administrative regulations until the meeting of May, 2000.

501 KAR 3:010. Definitions.

501 KAR 3:040. Personnel.

501 KAR 3:060. Security; control.

501 KAR 3:070. Safety; emergency procedures.

501 KAR 3:110. Classification.

501 KAR 3:120. Admission; release.

501 KAR 3:140. Inmate rights.

Restricted Custody Center

501 KAR 7:010. Definitions.

501 KAR 7:020. Administration; management.

501 KAR 7:040. Personnel.

501 KAR 7:050. Physical plant.

501 KAR 7:060. Security; control.

501 KAR 7:080. Sanitation; hygiene.

501 KAR 7:120. Admission; release.

501 KAR 7:140. Inmate rights.

Direct Supervision for Full-Service Jails

501 KAR 10:010. Definitions.

501 KAR 10:040. Personnel.

501 KAR 10:060. Security; control.

501 KAR 10:070. Safety; emergency procedures.

501 KAR 10:110. Classification.

501 KAR 10:120. Admission; release.

501 KAR 10:140. Inmate rights.

Department of Juvenile Justice: Child Welfare

505 KAR 1:090E. Supervised placement revocation.

Workforce Development Cabinet: Department for Adult and Technical Education: Personnel System for Certified and Equivalent Employees

780 KAR 3:065E. Certified and equivalent service administrative regulations.

780 KAR 3:071E. Repeal of 780 KAR 3:070.

780 KAR 3:072E. Attendance, compensatory time, and leave for certified and equivalent service.

780 KAR 3:075E. Sick leave sharing procedures for certified and equivalent service.

780 KAR 3:100E. Employee actions.

Unclassified Personnel Administrative Regulations

780 KAR 6:005E. Unclassified service administrative regulations.

780 KAR 6:061E. Repeal of 780 KAR 6:060.

780 KAR 6:062E. Attendance, compensatory time and leave for unclassified service.

780 KAR 6:065E. Sick leave sharing procedures for unclassified service.

Department of Mines and Minerals: Miner Training, Education and Certification

805 KAR 7:030. Annual retraining.

Kentucky Racing Commission: Thoroughbred Racing

810 KAR 1:060. Chemical dependency.

Cabinet for Health Services: Department for Medicaid Services: Division of Long Term Care: Medicaid Services

907 KAR 1:025E. Payment for services provided by a cost-based nursing facility, a nursing facility with an all inclusive rate unit, and a hospital with federally-defined swing beds.

907 KAR 1:044E. Mental health center services.

907 KAR 1:065E. Payments for price-based nursing facility services.

907 KAR 1:070E. Homecare waiver services.

907 KAR 1:072E. Payments for homecare waiver services.

907 KAR 1:090E. Personal care assistance waiver services.

907 KAR 1:092E. Payments for personal care assistance waiver services.

Kentucky Children's Health Insurance Program

907 KAR 4:030E. Kentucky Children's Health Insurance Program Phase III Title XXI of the Social Security Act.

Cabinet for Families and Children: Department for Community Based Services: Division of Policy Development: K-Tap, Kentucky Works, Welfare to Work, State Supplementation

921 KAR 2:015E. Supplemental programs for persons who are aged, blind, or have a disability.

Department for Social Insurance: Division of Management & Development: Food Stamp Program

921 KAR 3:020E. Financial requirements.

921 KAR 3:030E. Application process.

Justice Cabinet: Department of Corrections: Office of the Secretary

501 KAR 6:190 & E. Certification procedures for mental health professionals performing sex offender risk assessments. Steve Durham and Tamela Biggs represented the Department.

Subcommittee staff stated that: (1) at its May 11, 1999 meeting, the Subcommittee found this administrative regulation and 501 KAR 6:200 deficient because they excluded marriage and family therapists from those counselors able to perform sex offender assessments; (2) Senate Bill 263, enacted during the 2000 Regular Session, amended the statute to included marriage and family therapists in the definitions of counselors able to perform these assessments; and (3) if the finding of deficiency was removed, the Department would file emergency administrative regulations to immediately permit marriage and family therapists to administer sex offender risk assessments.

In response to a question by Representative Bruce, Mr. Durham stated that: (1) the administrative regulations originally required a "mental health professional" to conduct the assessment; (2) the Board used the statutory definition of "qualified mental health professional"; and (3) the definition of "qualified mental health professional" did not include the marriage and family therapists.

The Subcommittee approved a motion to remove the finding of deficiency from this administrative regulation and 501 KAR 6:200.

501 KAR 6:200 & E. Sex offender risk assessment procedure.

Transportation Cabinet: Department of Highways: Division of Traffic: Mass Transportation

603 KAR 7:080. Human service transportation delivery. Charlie Harman represented the Cabinet.

Representative Lee stated that: (1) this administrative regulation was found deficient at the Subcommittee's May, 1999 meeting because of numerous problems with non-emergency medical transportation delivery systems; and (2) House Bill 488, enacted during the 2000 Regular Session, would address most of the problems with delivery of the transportation system.

The Subcommittee approved a motion by Representative Lee to remove the finding of deficiency on 603 KAR 7:080.

The Subcommittee adjourned at 11:45 p.m. until May 9, 2000, at 10 a.m. in Room 149 of the Capitol Annex.