Pages 620 to 687 include ARC 0188B to ARC 0225B

Administrative Rules Review Committee 610

Schedule for rule making 608

Publication procedures 609

Administrative rules on CD–ROM 609

Agency identification numbers 618

Notice, Examinations, ch 3 ARC 0200B 620

CITATION OF ADMINISTRATIVE RULES 607

Notice, Uniform rules for waivers, ch 7
ARC 0225B 620

Filed, Accelerated career education grant
program, ch 19 ARC 0223B 677

Filed, Approval of postsecondary schools,
ch 21 ARC 0224B 678

Filed, Offender telephone commissions,
20.20 ARC 0199B 678

Notice, Lead hazard reduction; housing
rehabilitation projects, 25.2, 25.4(1),
25.6(2), 25.7, 25.8 ARC 0196B 622

Notice, Assistive device tax credit, ch 66
ARC 0194B 623

Notice, Life science enterprises, ch 67
ARC 0195B 625

Filed, Rural resource coordination programs
for fire services, ch 42 ARC 0197B 679

Filed, VAAPFAP loan guarantee; loan or grant
funds, 57.2, 57.6 ARC 0193B 680

Notice, MTBE sampling, 135.19(3)
ARC 0217B 626

Filed, Water supplies, amendments to
chs 40 to 43, 83 ARC 0218B 681

Filed, Water quality, 61.2, 61.3
ARC 0215B 682

Filed Emergency, MTBE sampling, 135.19(3)
ARC 0216B 676

Notice, HAWK–I program, 86.1, 86.2(2),
86.3(8), 86.4(1), 86.5 to 86.9, 86.11
ARC 0191B 627

Notice, Organization and operation, ch 1
ARC 0205B 628

Notice, Fair information practices, ch 2
ARC 0206B 629

Notice, Petitions for rule making, ch 3
ARC 0208B 633

Notice, Agency procedure for rule making,
ch 4 ARC 0209B 634

Notice, Declaratory orders, ch 5
ARC 0207B 640

Notice, Use of credit history in underwriting and
making of rates for personal automobile and
homeowners policies, 20.12 ARC 0188B 642

Notice, Elevators, 71.1, 71.2, 71.5,
72.1 to 72.23, 73.1 to 73.3, 73.4(2),
73.8 to 73.10, 73.13 to 73.24, 74.1 to
74.3, 76.1, 76.6, 76.7, 77.7 ARC 0198B 643

Filed, Asbestos removal and encapsulation,
rescind chs 81, 82; adopt ch 155 ARC 0190B 682

Notice, Administrative and regulatory authority;
agency procedures, chs 1, 2, 10, 14, 17
ARC 0210B 647

Notice, Waivers and variances, ch 3, 11.9(3),
11.36, 12.4, 13.12, 14.4(6), 14.5(10),
14.11, 14.30 ARC 0212B 653

Notice, Resident physician license period;
fee for verification of licensure status,
11.6, 11.31(4) ARC 0214B 656

Filed, Selling of goods or services by members
of the board or impaired physician review
committee (IPRC), 10.11 ARC 0211B 684

Filed, Physician eligibility to supervise a
physician assistant, ch 21 ARC 0213B 685

Notice, Board’s meeting schedule,
1.3 ARC 0204B 657

Notice, Change of address, 1.4, 2.1,
2.3, 3.1, 3.3, 4.11(1) ARC 0203B 658

Notice, Liens on tank sites, 11.9 ARC 0201B 658

Notice, Fraud disqualification, 11.10
ARC 0202B 659

Notice, Waivers and variances, 1.3,
3.4, 4.6(1), 6.3, 6.4, 6.5(3), 7.3, 7.4,
15.2 to 15.4, 16.5, 16.6, 19.6, ch 34
ARC 0192B 660

Notice, Marital and family therapists and mental
health counselors—continuing education,
30.1, 30.3(2), 30.4(2), 30.5(10), 30.8 to
30.10, 31.1 to 31.6, 31.8 to 31.10, ch 32
ARC 0220B 663

Notice, Chiropractors—continuing education;
discipline, 40.1, 40.8 to 40.24, 40.36 to 40.41,
40.51, 40.52, 40.62 to 40.67, 40.69 to 40.73,
chs 43, 44 ARC 0219B 667

Notice, Athletic trainers—continuing
education, 350.13 to 350.21, 350.26,
350.31, ch 351 ARC 0221B 672

Filed, Nursing home administrators—
continuing education, 141.10, 141.12,
ch 143 ARC 0222B 686

Filed, Thoroughbred and quarter horse racing,
8.3(12), ch 10 ARC 0189B 687

Summarized list 614

Public Notice 675

Notice—Public funds interest rates 675

CITATION of Administrative Rules

The Iowa Administrative Code shall be cited as (agency identification number) IAC
(chapter, rule, subrule, lettered paragraph, or numbered subparagraph).

441 IAC 79 (Chapter)

441 IAC 79.1(249A) (Rule)

441 IAC 79.1(1) (Subrule)

441 IAC 79.1(1)“a” (Paragraph)

441 IAC 79.1(1)“a”(1) (Subparagraph)

The Iowa Administrative Bulletin shall be cited as IAB (volume), (number), (publication
date), (page number), (ARC number).

IAB Vol. XII, No. 23 (5/16/90) p. 2050, ARC 872A

PUBLISHED UNDER AUTHORITY OF IOWA CODE SECTIONS 2B.5 AND 17A.6

__________________________________

The Iowa Administrative Bulletin is published biweekly in pamphlet form pursuant to Iowa Code chapters 2B and 17A and contains Notices of Intended Action on rules, Filed and Filed Emergency rules by state agencies.

It also contains Proclamations and Executive Orders of the Governor which are general and permanent in nature; Economic Impact Statements to proposed rules and filed emergency rules; Objections filed by Administrative Rules Review Committee, Governor or the Attorney General; and Delay by the Committee of the effective date of filed rules; Regulatory Flexibility Analyses and Agenda for monthly Administrative Rules Review Committee meetings. Other “materials deemed fitting and proper by the Administrative Rules Review Committee” include summaries of Public Hearings, Attorney General Opinions and Supreme Court Decisions.

The Bulletin may also contain Public Funds Interest Rates [12C.6]; Workers’ Compensation Rate Filings [515A.6(7)]; Usury [535.2(3)“a”]; Agricultural Credit Corporation Maximum Loan Rates [535.12]; and Regional Banking—Notice of Application and Hearing [524.1905(2)].

PLEASE NOTE: Italics indicate new material added to existing rules; strike through letters indicate deleted material.

Subscriptions and Distribution Telephone: (515)242–5120
Fax: (515)242–5974

KATHLEEN K. BATES, Administrative Code Editor Telephone: (515)281–3355

STEPHANIE A. HOFF, Assistant Editor (515)281–8157

Fax: (515)281–4424

The Iowa Administrative Bulletin is sold as a separate publication and may be purchased by subscription or single copy. All subscriptions will expire on June 30 of each year. Subscriptions must be paid in advance and are prorated quarterly.

July 1, 2000, to June 30, 2001 $264.00 plus $15.84 sales tax

The Iowa Administrative Code and Supplements are sold in complete sets and subscription basis only. All subscriptions for the Supplement (replacement pages) must be for the complete year and will expire on June 30 of each year.

Prices for the Iowa Administrative Code and its Supplements are as follows:

Iowa Administrative Code - $1,210.31 plus $72.62 sales tax

(Price includes 22 volumes of rules and index, plus a one–year subscription to the Code Supplement and the Iowa Administrative Bulletin.)

Iowa Administrative Code Supplement - $425.61 plus $25.54 sales tax

(Subscription expires June 30, 2001)

All checks should be made payable to the Iowa State Printing Division. Send all inquiries and subscription orders to:

Department of General Services

Rules will not be accepted after 12 o’clock noon on the Friday filing deadline days unless prior approval has been received from the Administrative Rules Coordinator’s office.

If the filing deadline falls on a legal holiday, submissions made on the following Monday will be accepted.

TO: Administrative Rules Coordinators and Text Processors of State Agencies

FROM: Kathleen K. Bates, Iowa Administrative Code Editor

SUBJECT: Publication of Rules in Iowa Administrative Bulletin

The Administrative Code Division uses Interleaf 6 to publish the Iowa Administrative Bulletin and can import documents directly from most other word processing systems, including Microsoft Word, Word for Windows (Word 7 or earlier), and WordPerfect.

1. To facilitate the processing of rule–making documents, we request a 3.5” High Density (not Double Density) IBM PC–compatible diskette of the rule making. Please indicate on each diskette the following information: agency name, file name, format used for exporting, and chapter(s) amended. Diskettes may be delivered to the Administrative Code Division, First Floor South, Grimes State Office Building or included with the documents submitted to the Governor’s Administrative Rules Coordinator.

2. Alternatively, if you have Internet E–mail access, you may send your document as an attachment to an E–mail message, addressed to both of the following:

bcarr@legis.state.ia.us

kbates@legis.state.ia.us

Please note that changes made prior to publication of the rule–making documents are reflected on the hard copy returned to agencies by the Governor’s office, but not on the diskettes; diskettes are returned unchanged.

Your cooperation helps us print the Bulletin more quickly and cost–effectively than was previously possible and is greatly appreciated.

Containing: Iowa Administrative Code (updated through August 2000)
Iowa Administrative Bulletins (January 2000 through August 2000)
Iowa Court Rules (updated through August 2000)

For free brochures and order forms contact:

Legislative Service Bureau
Attn: Ms. Stephanie Cox
State Capitol
Des Moines, Iowa 50319
Telephone: (515)281–3566 Fax: (515)281–8027
lsbinfo@legis.state.ia.us

The Administrative Rules Review Committee will hold its regular, statutory meeting on Tuesday, November 14, 2000, at 9 a.m. in the Ronald Reagan Conference Room (G19), State Capitol, Des Moines, Iowa. The following rules will be reviewed:

To All Agencies:

The Administrative Rules Review Committee voted to request that Agencies comply with Iowa Code section 17A.4(1)“b” by allowing the opportunity for oral presentation (hearing) to be held at least twenty days after publication of Notice in the Iowa Administrative Bulletin.

Due to reorganization of state government by 1986 Iowa Acts, chapter 1245, it was necessary to revise the agency identification numbering system, i.e., the bracketed number following the agency name.

“Umbrella” agencies and elected officials are set out below at the left–hand margin in CAPITAL letters.

Divisions (boards, commissions, etc.) are indented and set out in lowercase type under their statutory “umbrellas.”

Other autonomous agencies which were not included in the original reorganization legislation as “umbrella” agencies are included alphabetically in small capitals at the left–hand margin, e.g., BEEF INDUSTRY COUNCIL, IOWA[101].

The following list will be updated as changes occur:

AGRICULTURE AND LAND STEWARDSHIP DEPARTMENT[21]

Agricultural Development Authority[25]

Soil Conservation Division[27]

ATTORNEY GENERAL[61]

AUDITOR OF STATE[81]

CITIZENS’ AIDE[141]

CIVIL RIGHTS COMMISSION[161]

COMMERCE DEPARTMENT[181]

Alcoholic Beverages Division[185]

Banking Division[187]

Credit Union Division[189]

Insurance Division[191]

Professional Licensing and Regulation Division[193]

Accountancy Examining Board[193A]

Architectural Examining Board[193B]

Engineering and Land Surveying Examining Board[193C]

Landscape Architectural Examining Board[193D]

Real Estate Commission[193E]

Real Estate Appraiser Examining Board[193F]

Savings and Loan Division[197]

Utilities Division[199]

CORRECTIONS DEPARTMENT[201]

Parole Board[205]

CULTURAL AFFAIRS DEPARTMENT[221]

Arts Division[222]

Historical Division[223]

ECONOMIC DEVELOPMENT, IOWA DEPARTMENT OF[261]

City Development Board[263]

Iowa Finance Authority[265]

EDUCATION DEPARTMENT[281]

Educational Examiners Board[282]

College Student Aid Commission[283]

Higher Education Loan Authority[284]

Iowa Advance Funding Authority[285]

Libraries and Information Services Division[286]

Public Broadcasting Division[288]

School Budget Review Committee[289]

ELDER AFFAIRS DEPARTMENT[321]

EXECUTIVE COUNCIL[361]

GENERAL SERVICES DEPARTMENT[401]

HUMAN RIGHTS DEPARTMENT[421]

Community Action Agencies Division[427]

Criminal and Juvenile Justice Planning Division[428]

Deaf Services Division[429]

Persons With Disabilities Division[431]

Latino Affairs Division[433]

Status of African–Americans, Division on the[434]

Status of Women Division[435]

HUMAN SERVICES DEPARTMENT[441]

INSPECTIONS AND APPEALS DEPARTMENT[481]

Employment Appeal Board[486]

Foster Care Review Board[489]

Racing and Gaming Commission[491]

State Public Defender[493]

LAW ENFORCEMENT ACADEMY[501]

MANAGEMENT DEPARTMENT[541]

Appeal Board, State[543]

City Finance Committee[545]

County Finance Committee[547]

NATURAL RESOURCES DEPARTMENT[561]

Energy and Geological Resources Division[565]

Environmental Protection Commission[567]

Natural Resource Commission[571]

Preserves, State Advisory Board[575]

PERSONNEL DEPARTMENT[581]

PUBLIC DEFENSE DEPARTMENT[601]

Emergency Management Division[605]

Military Division[611]

PUBLIC EMPLOYMENT RELATIONS BOARD[621]

PUBLIC HEALTH DEPARTMENT[641]

Substance Abuse Commission[643]

Professional Licensure Division[645]

Dental Examiners Board[650]

Medical Examiners Board[653]

Nursing Board[655]

Pharmacy Examiners Board[657]

PUBLIC SAFETY DEPARTMENT[661]

REGENTS BOARD[681]

Archaeologist[685]

REVENUE AND FINANCE DEPARTMENT[701]

Lottery Division[705]

SECRETARY OF STATE[721]

TRANSPORTATION DEPARTMENT[761]

Railway Finance Authority[765]

TREASURER OF STATE[781]

WORKFORCE DEVELOPMENT DEPARTMENT[871]

Labor Services Division[875]

Workers’ Compensation Division[876]

Workforce Development Board and
Workforce Development Center Administration Division[877]

Pursuant to the authority of Iowa Code sections 17A.3 and 524.213, the Banking Division of the Commerce Department hereby gives Notice of Intended Action to adopt Chapter 3, “Examinations,” Iowa Administrative Code.

The new chapter clarifies which examination reports may satisfy the statutory examination requirements for state chartered banks set forth in Iowa Code section 524.217(1)“a.”

Interested persons may make written comments on the proposed new chapter on or before November 7, 2000. Such written material should be directed to the Superintendent of Banking, Banking Division, Department of Commerce, 200 East Grand Avenue, Suite 300, Des Moines, Iowa 50309. Persons who want to convey their views orally should contact the Superintendent of Banking, Department of Commerce, at (515)281–4014 or at 200 East Grand Avenue, Suite 300.

Also, a public hearing will be held on Tuesday, November 7, 2000, at 10 a.m. in the Banking Division Conference Room at 200 East Grand Avenue. Persons may present their views at this public hearing either orally or in writing. Persons who wish to make oral presentations at the public hearing should contact the Superintendent of Banking at least one day prior to the date of the public hearing.

This amendment is intended to implement Iowa Code section 524.217.

The following new chapter is proposed.

CHAPTER 3
EXAMINATIONS

187—3.1(524) Satisfaction of examination requirements. The requirement for an examination of state chartered banks at least once during each two–year period set forth in Iowa Code section 524.217(1)“a” may be satisfied by an examination conducted by the Banking Division, the Federal Deposit Insurance Corporation, or the Federal Reserve System when such examinations address the statutory requirements of Iowa Code section 524.217(1)“a.”

Pursuant to the authority of Iowa Code sections 261.3 and 261.37(5), the College Student Aid Commission proposes to adopt new Chapter 7, “Uniform Rules for Waivers,” Iowa Administrative Code.

The new chapter provides uniform rules governing petitions for waiver from provisions in Commission rules as required by Executive Order Number 11. Executive Order Number 11 directs state rule–making authorities to adopt uniform rules governing waivers from published rules.

Interested persons may submit comments orally or in writing to the Executive Director, College Student Aid Commission, 200 Tenth Street, Fourth Floor, Des Moines, Iowa 50309, telephone (515)281–3501, by 4:30 p.m., November 7, 2000.

This amendment is intended to implement Executive Order Number 11 and 2000 Iowa Acts, House File 2206.

The following new chapter is proposed.

CHAPTER 7
UNIFORM RULES FOR WAIVERS

283—7.1(261,ExecOrd11,78GA,HF2206) Waiver proc–ess. This chapter outlines a uniform process for granting waivers from rules adopted by the commission.

7.1(1) Commission authority. A waiver from rules adopted by the commission may be granted in accordance with this chapter if:

a. The commission has exclusive rule–making authority to promulgate the rule from which a waiver is requested or has final decision–making authority over a contested case in which a waiver is requested; and

b. No statute or rule otherwise controls the granting of a waiver from the rule from which a waiver is requested.

7.1(2) Interpretive rules. These uniform waiver rules shall not apply to rules defining a statute or other provisions of law or precedent if the commission does not have delegated authority to bind the courts with its definition.

7.1(3) Compliance with statute. No waiver shall be granted from a requirement that is imposed by statute. Any waiver must be consistent with statute.

283—7.2(261,ExecOrd11,78GA,HF2206) Definition. For purposes of this chapter, a waiver means action by the commission which suspends in whole or in part the requirements or provisions of a rule as applied to an identified person on the basis of the particular circumstances of that person.

283—7.3(261,ExecOrd11,78GA,HF2206) Scope of chapter. This chapter outlines generally applicable standards and a uniform process for the granting of individual waivers from rules adopted by the commission in situations where no other more specific applicable law provides for waivers. To the extent another more specific provision of law governs the issuance of a waiver from a particular rule, the more specific provision shall supersede this chapter with respect to any waiver from that rule.

283—7.4(261,ExecOrd11,78GA,HF2206) Applicability of chapter. The commission may grant a waiver from a rule only if the commission has jurisdiction over the rule and the requested waiver is consistent with applicable statutes, constitutional provisions, or other provisions of law. The commission may not waive requirements created or duties imposed by statute.

283—7.5(261,ExecOrd11,78GA,HF2206) Criteria for waiver. The commission may issue an order, in response to a completed petition or on its own motion, granting a waiver from a rule adopted by the commission, in whole or in part, as applied to the circumstances of a specified person if the commission finds, based on clear and convincing evidence, that:

7.5(1) Application of the rule would impose an undue hardship or injustice on the person for whom the waiver is requested; and

7.5(2) A waiver of the rule on the basis of the particular circumstances relative to that specified person would be consistent with the public interest; and

7.5(3) A waiver of the rule in the specific case would not prejudice the substantial legal rights of any person.

283—7.6(261,ExecOrd11,78GA,HF2206) Mandatory waivers. In response to the timely filing of a completed petition requesting a waiver, the commission shall grant a waiver from a rule, in whole or in part, as applied to the particular circumstances of a specified person, if the commission finds that the application of all or a portion of the circumstances of that specified person would not, to any extent, advance or serve any of the purposes of the rule.

283—7.7(261,ExecOrd11,78GA,HF2206) Burden of persuasion. The petitioner shall assume the burden of persuasion to demonstrate clear and convincing evidence when a petition is filed for a waiver from a commission rule.

283—7.8(261,ExecOrd11,78GA,HF2206) Special waiver rule not precluded. This uniform waiver rule shall not preclude the commission from granting waivers in other contexts or on the basis of other standards if a statute or other commission rule authorizes the commission to do so and the commission deems it appropriate to do so.

283—7.9(261,ExecOrd11,78GA,HF2206) Administrative deadlines. When the rule from which a waiver is sought establishes administrative deadlines, the commission shall balance the special individual circumstances of the petitioner with the overall goal of uniform treatment of all persons participating in a particular program offered by the commission.

283—7.10(261,ExecOrd11,78GA,HF2206) Filing of petition. A petition for a waiver must be submitted in writing to the commission’s Executive Director, 200 Tenth Street, Fourth Floor, Des Moines, Iowa 50309.

283—7.11(261,ExecOrd11,78GA,HF2206) Contested case. If the petition relates to a pending contested case, the petition shall be filed in the contested case proceeding, using the caption of the contested case.

283—7.12(261,ExecOrd11,78GA,HF2206) Contents of petition. A petition for waiver shall include the following information where applicable and known to the petitioner:

7.12(1) The name, address, telephone number, and social security number of the person or entity for whom a waiver is being requested and the case number of any related contested case, whether pending or closed.

7.12(2) A description and citation of the specific rule from which a waiver is requested.

7.12(3) The specific waiver requested, including the precise scope and duration.

7.12(4) The relevant facts that the petitioner believes would justify a waiver. This statement shall include a signed statement from the petitioner attesting to the accuracy of the facts provided in the petition and a statement of reasons that the petitioner believes will justify a waiver.

7.12(5) A history of any prior contacts between the commission and the petitioner. The historical summary shall include:

a. A list of all of the programs, contracts, allocations, bond issues, loans, grants, or other activities in which the petitioner has participated or from which the petitioner has received a benefit and which are affected by the proposed waiver.

b. A description of each instance when the petitioner has participated in or benefited from any of the commission’s programs or contracts, including but not limited to allocations, grants, or loans held by the petitioner, any notices of noncompliance, other administrative events, whether federal or state, contested case hearings, or investigative reports relating to the program, allocation, grant, or loan.

7.12(6) Any information known to the petitioner about the commission’s treatment of similar cases.

7.12(7) The name, address, and telephone number of any person or entity, inside or outside state government, who would be adversely affected by the granting of a petition.

7.12(8) The name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver.

7.12(9) Signed releases of information authorizing persons with knowledge regarding the request to furnish the commission with information pertaining to the waiver.

283—7.13(261,ExecOrd11,78GA,HF2206) Additional information. If the petition for waiver is not filed in a contested case and prior to issuing an order granting or denying a waiver, the executive director may request additional information from the petitioner relative to the petition and circumstances relating to the request for waiver. The request may be in the form of written questions or oral interview. The executive director may interview or direct written questions to other persons in connection with the waiver requested. If the petition was not filed in a contested case, the commission, or its executive director, may, on its own motion or at the petitioner’s request, schedule a telephonic or in–person meeting between the petitioner and the commission’s executive director, a committee of the commission’s staff, or a quorum or committee of the commission’s board to consider the petition for waiver.

283—7.14(261,ExecOrd11,78GA,HF2206) Notice. The commission shall acknowledge a petition upon receipt. The commission shall ensure that notice of the pendency of the petition and a concise summary of its contents have been provided to all persons to whom notice is required by any provision of law within 30 days of the receipt of the petition. In addition, the commission may give notice to other persons. To accomplish this notice provision, the commission may require the petitioner to serve the notice on all persons to whom notice is required and provide a written statement that notice has been provided.

283—7.15(261,ExecOrd11,78GA,HF2206) Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings shall apply to any petition for a waiver filed within a contested case, and shall otherwise apply to commission proceedings for a waiver of a rule only when the commission so provides by rule or order or is required by statute to do so.

283—7.16(261,ExecOrd11,78GA,HF2206) Ruling. An order granting or denying a waiver shall be in writing and shall contain a reference to that particular person and rule or portion thereof to which the order pertains, a statement of the relevant facts and reasons upon which the action is based, and a description of the precise scope and operative period of the waiver if one is issued.

283—7.17(261,ExecOrd11,78GA,HF2206) Board discretion. The final decision on whether the circumstances justify the granting of a waiver shall be made at the sole discretion of the commission, upon consideration of all relevant factors. Each petition for a waiver shall be evaluated by the board based on the unique, individual circumstances set out in the petition.

283—7.18(261,ExecOrd11,78GA,HF2206) Narrowly tailored exception. A waiver, if granted, shall provide the narrowest exception possible to the provisions of a rule.

283—7.19(261,ExecOrd11,78GA,HF2206) Conditions. The commission may condition the granting of a waiver on such reasonable conditions as appropriate to achieve the objectives of the particular rule in question through alternative means.

283—7.20(261,ExecOrd11,78GA,HF2206) Time period of waiver. A waiver shall not be permanent unless the petitioner can show that a temporary waiver would be impracticable. If a temporary waiver is granted, there is no automatic right to renewal. At the sole discretion of the commission, a waiver may be renewed if the commission finds that grounds for a waiver continue to exist.

283—7.21(261,ExecOrd11,78GA,HF2206) Timing for ruling. The commission shall grant or deny a petition for a waiver as soon as practicable but, in any event, shall do so within 120 days of its receipt, unless the petitioner agrees to a later date. However, if a petition is filed in a contested case proceeding, the commission shall grant or deny the petition no later than the time at which the final decision in the contested case is issued.

283—7.22(261,ExecOrd11,78GA,HF2206) When deemed denied. Failure of the commission to grant or deny a petition within the required time period shall be deemed a denial of that petition by the commission. However, the commission shall remain responsible for issuing an order denying a waiver.

283—7.23(261,ExecOrd11,78GA,HF2206) Service of order. Within seven days of its issuance, any order issued under these uniform rules shall be transmitted to the petitioner or the person to whom the order pertains and to any other person entitled to such notice by any provision of law.

283—7.24(261,ExecOrd11,78GA,HF2206) Public availability. Subject to the provisions of Iowa Code section 17A.3(1)“e,” the commission shall maintain a record of all orders granting and denying waivers under these uniform rules. All records pertaining to waivers shall be indexed and available to members of the public at the commission’s office. Some petitions may contain information the commission is authorized or required to keep confidential. The commission may accordingly edit confidential information from petitions or orders prior to public inspection.

283—7.25(261,ExecOrd11,78GA,HF2206) Voiding or cancellation. A waiver is void if the material facts upon which the request is based are not true or if material facts have been withheld. The commission may, at any time, cancel a waiver upon appropriate notice and hearing if the commission finds that the facts as stated in the petition are not true, material facts have been withheld, the alternative means of compliance provided in the waiver have failed to achieve the objectives of the statute or rule, or the petitioner has failed to comply with the conditions of the order.

283—7.26(261,ExecOrd11,78GA,HF2206) Violations. Violation of conditions in a waiver shall be treated as a violation of the particular rule for which the waiver is granted and is subject to the same remedies or penalties.

283—7.27(261,ExecOrd11,78GA,HF2206) Defense. After the commission issues an order granting a waiver, the order is a defense within its terms and the specific facts indicated therein for the person to whom the order pertains in any proceeding in which the rule in question is sought to be invoked. The order is not assignable, and it shall not inure to the benefit of the heirs or successors in interest of the person first obtaining the waiver.

283—7.28(261,ExecOrd11,78GA,HF2206) Judicial review. Judicial review of a commission decision to grant or deny a waiver petition may be taken in accordance with Iowa Code chapter 17A.

These rules are intended to implement Iowa Code chapter 17A, Executive Order Number 11, and 2000 Iowa Acts, House File 2206.

Pursuant to the authority of Iowa Code sections 15.104 and 15.106, the Iowa Department of Economic Development hereby gives Notice of Intended Action to amend Chapter 25, “Housing Fund,” Iowa Administrative Code.

The proposed amendments add requirements related to lead hazard reduction and clarify program requirements related to housing rehabilitation projects.

Public comments concerning the proposed amendments will be accepted until 4:30 p.m. on November 8, 2000. Interested persons may submit written or oral comments by contacting Roselyn McKie Wazny, Division of Community and Rural Development, Iowa Department of Economic Development, 200 East Grand Avenue, Des Moines, Iowa 50309; telephone (515)242–4822.

A public hearing to receive comments about the proposed amendments will be held on November 8, 2000, at 1:30 p.m. at the above address in the Second Floor Northeast Conference Room. Individuals interested in providing comments at the hearing should contact Roselyn McKie Wazny by 4 p.m. on November 7, 2000, to be placed on the agenda.

These amendments are intended to implement Iowa Code section 15.108(1)“a.”

The following amendments are proposed.

ITEM 1. Amend rule 261—25.2(15) by adopting the following new definitions in alphabetical sequence:

“Lead–based paint” means paint or other surface coatings that contain lead equal to or in excess of 1.0 milligram per square centimeter or more than 0.5 percent by weight.

“Lead–based paint activities” means, in the case of target housing and child–occupied facilities, lead inspection, elevated blood lead (EBL) inspection, lead hazard screen, risk assessment, lead abatement, visual risk assessment, clearance testing conducted after lead abatement, and clearance testing conducted after interim controls, paint stabilization, standard treatments, ongoing lead–based paint maintenance, or rehabilitation pursuant to 24 CFR 35.1340.

“Lead–based paint hazard” means any condition that causes exposure to lead from lead–contaminated dust, lead–contaminated soil, or lead–based paint that is deteriorated or present in accessible surfaces, friction surfaces, and impact surfaces that would result in adverse human health effects.

“Lead hazard reduction” means the reduction or abatement of lead–based paint hazards which include deteriorated lead–based paint; lead–based paint on friction surfaces, impact surfaces and accessible surfaces; and dust and soil that are contaminated with lead above a specified standard.

“Lead professional” means a person who conducts lead abatement, lead inspections, elevated blood level (EBL) inspections, lead hazard screens, risk assessments, visual risk assessments, clearance testing after lead abatement, or clearance testing after interim controls, paint stabilization, standard treatments, ongoing lead–based paint maintenance, or rehabilitation pursuant to 24 CFR 35.1340.

ITEM 2. Amend paragraph 25.4(1)“c” as follows:

c. IDED reserves the right to establish rehabilitation standards for projects. All rehabilitation must be done in compliance with Iowa’s Minimum Housing Rehabilitation Standards (November 1999), and all applicable state and local codes, rehabilitation standards and ordinances, and shall, at a minimum, meet HUD Section 8 Housing Quality Standards, 24 CFR 882 (April 1, 1997). New units must be constructed pursuant to standards specified at 24 CFR 92.251(a)(1) (April 1, 1997).

ITEM 3. Amend subrule 25.6(2) as follows:

25.6(2) The application shall document the applicant’s capacity to administer the proposed activity. Such documentation may include evidence of successful administration of prior housing activities or a statement that the applicant intends to contract with another entity for administrative services. Documentation of the availability of certified lead professionals and contractors trained in safe work practices may also be required. IDED reserves the right to deny funding to an applicant that has failed to comply with federal and state requirements in the administration of a previous project funded by IDED.

ITEM 4. Amend paragraph 25.7(1)“a” as follows:

a. General criteria:

1. to 12. No change.

13. Rehabilitation standards to be used. Assurance of compliance with HUD lead–based paint hazard regulations.

14. Project time line. Compliance with Iowa’s Minimum Housing Rehabilitation Standards (November 1999) and standards, codes, and ordinances described in 25.4(1)“c.”

ITEM 5. Amend paragraph 25.7(2)“a” as follows:

a. General criteria.

1. Project objectives.

2. Area of benefit and reason for applicant selection.

3. Condition of infrastructure in the project area.

4. Form of assistance to homeowners (grants, loans, and amounts).

5. Homeowner contribution methodology.

6. Selection criteria for participants.

7. Method to determine that the property is the homeowner’s principle residence.

8. Proposed standards for rehabilitation. Compliance with Iowa’s Minimum Housing Rehabilitation Standards (November 1999).

9. Assurance of compliance with HUD lead–based paint hazard regulations.

9 10. Plan for properties infeasible to rehabilitate.

10 11. If relocation is included, estimate of available suitable replacement housing.

11 12. Documentation of local lender participation and lender’s underwriting criteria.

14 13. Use Intended use of program income.

15 14. Project time line.

ITEM 6. Amend paragraph 25.7(3)“a” as follows:

a. General criteria.

1. to 10. No change.

11. Rehabilitation standards or construction codes to be used. Assurance of compliance with HUD lead–based paint hazard regulations.

12. Project time line. Compliance with Iowa’s Minimum Housing Rehabilitation Standards (November 1999) and standards and ordinances described in paragraph 25.4(1)“c.”

ITEM 7. Amend subrule 25.8(9) as follows:

25.8(9) The maximum per unit housing fund subsidy for all project types is $24,999. Additional funds may be used to pay the direct administration carrying costs and the cost of lead hazard reduction.

ITEM 8. Amend subrule 25.8 (10) as follows:

25.8(10) Recipients shall justify administrative costs in the housing fund application. IDED reserves the right to negotiate the amount of funds provided for administration, but in no case shall the amount exceed 15 10 percent of the total housing fund award.

Pursuant to the authority of Iowa Code sections 15.104 and 15.106, the Iowa Department of Economic Development hereby gives Notice of Intended Action to adopt Chapter 66, “Assistive Device Tax Credit,” Iowa Administrative Code.

The proposed new rules implement the assistive device tax credit for small businesses as authorized by 2000 Iowa Acts, House File 2560, section 11. The rules establish program guidelines, criteria for eligibility, certification requirements, and application procedures for the issuance of Certificates of Entitlement for the assistive device tax credit.

Public comments concerning the proposed new chapter will be accepted until 4:30 p.m. on November 7, 2000. Interested persons may submit written or oral comments by contacting Brice Nelson, Business Development, Iowa Department of Economic Development, 200 East Grand Avenue, Des Moines, Iowa 50309; telephone (515)242–4874.

A public hearing to receive comments about the proposed new chapter will be held on November 7, 2000, at 1 p.m. at the above address in the IDED Northwest Conference Room on the second floor. Individuals interested in providing comments at the hearing should contact Brice Nelson by 4 p.m. November 6, 2000, to be placed on the hearing agenda.

These rules are intended to implement 2000 Iowa Acts, House File 2560, section 11.

The following chapter is proposed.

Adopt the following new chapter:

CHAPTER 66
ASSISTIVE DEVICE TAX CREDIT

261—66.1(78GA,HF2560) Purpose. The departments of economic development and revenue and finance administer the assistive device tax credit jointly to encourage small businesses to purchase, rent or modify assistive devices and to make workplace modifications for an individual with a disability who is employed or will be employed by the business. The Iowa department of economic development administers the assistive device tax credit certification process. The department of revenue and finance administers the distribution of tax credits to eligible small businesses that have been issued certificates of entitlement.

261—66.2(78GA,HF2560) Definitions. For the purpose of these rules, the following definitions apply:

“Assistive device” means any item, piece of equipment, or product system which is used to increase, maintain, or improve the functional capabilities of an individual with a disability in the workplace or on the job. “Assistive device” does not mean any medical device, surgical device, or organ implanted or transplanted into or attached directly to an individual. “Assistive device” does not include any device for which a certificate of title is issued by the state department of transportation, but does include any item, piece of equipment, or product system otherwise meeting the definition of “assistive device” that is incorporated, attached, or included as a modification in or to such a device issued a certificate of title.

“Department” or “IDED” means the Iowa department of economic development.

“Disability” means, with respect to an individual, a physical or mental impairment that substantially limits one or more of the major life activities of the individual, a record of physical or mental impairment that substantially limits one or more of the major life activities of the individual, or being regarded as an individual with a physical or mental impairment that substantially limits one or more of the major life activities of the individual. “Disability” does not include any of the following: homosexuality or bisexuality; transvestitism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; compulsive gambling, kleptomania, or pyromania; psychoactive substance abuse disorders resulting from current illegal use of drugs; alcoholism.

“Employee” or “employed” also includes and refers to an individual with a disability who is self–employed and whose business qualifies as a small business.

“Small business” means a business that either had gross receipts for its preceding tax year of $3 million or less or employed not more than 14 full–time employees during its preceding tax year.

“Workplace modifications” means physical alterations to the work environment.

261—66.3(78GA,HF2560) Eligibility criteria. In order to be eligible to receive the assistive device tax credit, a small business must:

1. Be located in the state of Iowa.

2. Employ not more than 14 full–time employees or have gross receipts of no more than $3 million during its preceding tax year.

3. Purchase, rent or modify an assistive device or make workplace modifications for an individual with a disability who is employed or will be employed by the business.

66.4(1) To receive a certificate of entitlement for the assistive device tax credit, the eligible small business must submit an application to the Iowa department of economic development. Applications and related materials shall be submitted on forms as prescribed by the department. Applications for certification must be submitted to the Assistive Device Tax Credit Program, Division of Business Development, Iowa Department of Economic Development, 200 East Grand Avenue, Des Moines, Iowa 50309.

66.4(2) Applicant businesses must provide the following information to the IDED:

a. Proof of disability status of disabled person(s) employed or to be employed by the small business. Proof may take the form of written verification from the department of education, division of vocational rehabilitation, orthe department for the blind, or a completed verification of disability/physician’s statement.

b. Business tax forms for the previous year or personal income tax forms if business tax forms are not available.

c. Written documentation verifying the existence, organizational structure, and good standing of the business. The IDED assistive device tax credit small business documentation list describes acceptable forms of proof.

66.5(1) Review. Applications will first be reviewed for completeness. If additional information is required, the program staff shall send the applicant notice to submit the additional needed information. The applicant shall submit the requested information within a reasonable time period in order to ensure further actions on the request. The applications will then be reviewed for content. The following items will be reviewed and evaluated:

a. Eligibility of the small business.

b. Nature, scope, purpose and cost of the assistive device or workplace modification and the manner in which it enables the employer to hire or retain the employee or prospective employee, or accommodate the disability of the employee or prospective employee.

66.5(2) Decision. The small business liaison for the Iowa department of economic development will make the final decision on all awards under the assistive device tax credit program. Within a reasonable period after the decision has been made, the department will transmit to the applicant a letter that either provides the basic reasons for denial, or provides the certificate of entitlement.

261—66.6(78GA,HF2560) Certification. The certificate of entitlement shall be numbered and shall contain the taxpayer’s name, address, tax identification number, the amount of credit, and tax year for which the certificate is claimed.

66.7(1) Monitoring. The IDED reserves the right to monitor the recipient’s records to ensure compliance with all program requirements. IDED staff will contact the recipient to arrange such visits at a mutually agreeable time.

66.7(2) Misuse of funds. Any person receiving tax credits under the assistive device tax credit program is subject to criminal penalties under Iowa Code section 15A.3 if it is determined that the person knowingly made false statements to procure tax credits from the state or if it is determined that funds were used for purposes other than those stated in the application.

66.8(1) In a single tax year, a small business is eligible to receive a tax credit equal to 50 percent of the total cost to purchase, rent or modify an assistive device(s) or make workplace modifications. The tax credit shall not exceed $2,500.

66.8(2) The taxpayer must file the certificate of entitlement with the taxpayer’s income tax return in order to claim the tax credit.

66.8(3) The tax year for which the assistive device tax credit may be allowed shall be determined by the date of project completion.

These rules are intended to implement 2000 Iowa Acts, House File 2560.

Pursuant to the authority of Iowa Code sections 15.104 and 15.106, the Iowa Department of Economic Development hereby gives Notice of Intended Action to adopt Chapter 67, “Life Science Enterprises,” Iowa Administrative Code.

The proposed chapter implements a new program authorized by 2000 Iowa Acts, House File 2491. The rules describe the purpose of the program, establish eligibility requirements, and describe the procedures by which life science enterprise plans are submitted and approved.

Public comments concerning the proposed new chapter will be accepted until 4:30 p.m. on November 7, 2000. Interested persons may submit written or oral comments by contacting Allen Williams, Division of Business Development, Iowa Department of Economic Development, 200 East Grand Avenue, Des Moines, Iowa 50309; telephone (515) 242–4771.

A public hearing to receive comments about the proposed new chapter will be held on November 7, 2000, at 2 p.m. at the above address in the Marketing South Conference Room on the first floor.

These rules are intended to implement 2000 Iowa Acts, House File 2491.

The following chapter is proposed.

Adopt the following new chapter:

CHAPTER 67
LIFE SCIENCE ENTERPRISES

261—67.1(78GA,HF2491) Purpose. The purpose of this program is to promote economic growth in this state during this period of revolutionary technological advancement in animal and human health sciences by providing for the development of industries unrelated to traditional farming, but devoted to the production of life science products derived from animals.

261—67.2(78GA,HF2491) Definitions. When used in this chapter, the following definitions apply unless the context otherwise requires:

“Actively engaged in farming” means the same as defined in Iowa Code section 10.1.

“Agricultural commodity” means the same as defined in Iowa Code section 190C.1.

“Agricultural land” means land suitable for use in farming as defined in Iowa Code section 9H.1.

“Animal” means a creature belonging to the bovine, cap–rine, equine, ovine, or porcine species.

“Corporation” means a domestic or foreign corporation subject to Iowa Code chapter 490, a nonprofit corporation, or a cooperative.

“Department” means the Iowa department of economic development as defined in Iowa Code chapter 15.

“Economic development board” or “board” means the economic development board established by Iowa Code section 15.103.

“Family farm entity” means the same as defined in Iowa Code section 10.1.

“Life science by–product” means a commodity, other than a life science product, if the commodity derives from the production of a life science product and the commodity is not intended or used for human consumption.

“Life science enterprise” or “enterprise” means a corporation or limited liability company organized for the purpose of using biotechnological systems or techniques for the production of life science products.

“Life science product” or “product” means a product derived from an animal by using biotechnological systems or techniques and which includes any of the following:

1. Embryos or oocytes for use in animal implantation.

2. Blood, milk, or urine for use in the manufacture of pharmaceuticals or nutriceuticals.

3. Cells, tissue, or organs for use in animal or human transplantation.

“Limited liability company” means a limited liability company as defined in Iowa Code section 490A.102.

“Person” means an individual, group of individuals, corporation or limited liability corporation.

“Successor enterprise” means a corporation, person or limited liability company that is the transferee or successor in interest of all or a part of a particular life science activity of a life science enterprise, acquired on or after July 1, 2004, through sale, lease, license or other transfer.

261—67.3(78GA,HF2491) Filing of notice of intent. Any corporation or limited liability company which intends to file a plan to qualify as a life science enterprise under 2000 Iowa Acts, House File 2491, shall first file a written notice of intent indicating its intent to file such a plan. The notice of intent shall be filed with the Iowa department of economic development no later than June 30, 2001. The notice of intent shall contain a short and concise statement that the corporation or limited liability company may file a plan no later than June 30, 2004, and shall contain the name of the principal officer, main office address and place of incorporation of the corporation or limited liability company.

67.4(1) Any corporation or limited liability company desiring to qualify as a life science enterprise under 2000 Iowa Acts, House File 2491, shall file with the department a written life science enterprise plan no later than June 30, 2004. Only those corporations or limited liability companies that have timely filed a notice of intent pursuant to these rules shall be eligible to file a life science enterprise plan.

67.4(2) A life science enterprise plan shall contain at least the following:

a. A description of the particular life science product or products to be developed by the enterprise.

b. The estimated time frame for the development of the life science product or products to be developed by the enterprise.

c. The estimated amount or range of capital investment required by the enterprise in order to develop the life science product or products.

d. The estimated number of acres of agricultural land required to produce the life science product or products.

e. The type and extent of anticipated participation in the life science enterprise or the production of life science products by persons who are individual or family farm entities. In the event the plan does not provide for minimal participation by such persons, the plan shall provide an explanation of the reasonable efforts made by the enterprise to provide for such participation.

f. The name and address of the life science enterprise, its officers and directors, its place of business and place of incorporation.

261—67.5(78GA,HF2491) Review by board. Upon receipt of a life science enterprise plan that is timely filed with the department with the appropriate number of copies, the director shall promptly provide a copy of the plan to the department of agriculture and land stewardship for review and comment. The board shall consider any comments of the department of agriculture and land stewardship, review and approve or disapprove the life science enterprise plan in a public meeting to be held no later than 90 days after the date of filing of the plan with the department. The board may invite the life science enterprise to make an oral presentation to the board.

261—67.6(78GA,HF2491) Life science enterprise land ownership exemption. A life science enterprise, upon approval of a life science enterprise plan by the board, may hold an ownership or leasehold interest in up to 320 acres of agricultural land. A life science enterprise is allowed, before a life science enterprise plan is approved by the board, to take out a purchase option or a lease option on land the life science enterprise intends to acquire or lease. The exercise of any purchase or lease option shall be contingent upon the board’s approval of the life science enterprise plan.

261—67.7(78GA,HF2491) Amendment of plan. A life science enterprise plan may be amended as allowed by 2000 Iowa Acts, House File 2491, by the filing of an amendment with the department in the same manner as the filing of a plan under these rules. Amendments shall be reviewed and approved or disapproved within the same time deadlines and under the same process as provided for a plan.

261—67.8(78GA,HF2491) Successor enterprise. A corporation, person or limited liability company, which is the successor or transferee of the interests in an approved life science enterprise, shall provide notice thereof to the board by filing such notice with the division of business development pursuant to rule 261—67.9(78GA,HF2491). The notice shall be filed within 30 days of the acquisition of the interest in a life science enterprise. A successor enterprise shall acquire or hold any agricultural land consistent with the terms of the approved life science enterprise plan, including any amendments to such plan, that is applicable to the particular life science activity.

261—67.9(78GA,HF2491) Filing. For the purposes of these rules and 2000 Iowa Acts, House File 2491, a notice of intent, life science enterprise plan, amendment or notice of succession shall be considered filed with the department when such plan is received, with three additional copies, by the department’s division of business development. Documents shall be filed with the Division of Business Development, Iowa Department of Economic Development, 200 East Grand Avenue, Des Moines, Iowa 50309, Attn: Life Science Enterprises.

These rules are intended to implement 2000 Iowa Acts, House File 2491.

Pursuant to the authority of Iowa Code section 455B.474, the Environmental Protection Commission proposes to amend Chapter 135, “Technical Standards and Corrective Action Requirements of Owners and Operators of Underground Storage Tanks,” Iowa Administrative Code.

Subrule 135.19(3) provides for when sampling for methyl tertiary–butyl ether (MTBE) is not required. This amendment adds new conditions under which owners and operators can stop analyzing for MTBE. MTBE analysis would no longer be required after it is not found in soil and groundwater samples during RBCA Tier 1, Tier 2 or Tier 3 assessments and ongoing monitoring.

The Department is providing an opportunity for public comment on the proposed amendment. Any interested person may submit written comments on the proposed amendment on or before November 7, 2000. Written comments should be sent to the Iowa Department of Natural Resources, Attn: Jim Humeston, Wallace State Office Building, Des Moines, Iowa 50319, fax (515)281-8895, or E-mailJim.Humeston@dnr.state.ia.us.

This amendment was also Adopted and Filed Emergency and is published herein as ARC 0216B. The content of that submission is incorporated by reference.

This amendment may have an impact on small businesses as provided in Iowa Code section 17A.4A.

This amendment is intended to implement Iowa Code section 455B.474.

Pursuant to the authority of Iowa Code section 514I.5(8), the Department of Human Services proposes to amend Chapter 86, “Healthy and Well Kids in Iowa (HAWK–I) Program,” appearing in the Iowa Administrative Code.

These amendments revise policy governing the HAWK–I program to:

• Remove a definition that is no longer used. The term “administrative contractor” has been replaced with “third–party administrator.”

• Clarify that terminated income is not used to project future income when establishing eligibility for the program. HAWK–I eligibility is based on projected income. If income received in the past 30 days is from a terminated source, it should not be used to project future income.

• Provide greater flexibility for verifying income. Since the Medicaid program verifies income to make an eligibility determination, policy is being amended so that income does not have to be reverified. The income used to make the Medicaid determination will be used to establish HAWK–I eligibility.

• Remove references to referrals to county Department offices. Applications are no longer referred to county Department offices since workers are now co–located with HAWK–I staff and applications are processed centrally.

• Clarify that eligible children can move between the Medicaid and the HAWK–I programs without a break in coverage. Current policy does not allow a child to move from Medicaid to HAWK–I without a break in coverage in some circumstances.

• Allow families to select a health plan verbally instead of only in writing. This will make the enrollment process faster.

• Eliminate retroactive cancellations of HAWK–I coverage. Under current policy, if a child is approved retroactively for Medicaid or is found to have other health insurance, the child is retroactively disenrolled from HAWK–I. This results in the recovery of the premium from the health plan and adjustments to provider payments. Under these amendments, health plans and providers can be assured of payment for children who are determined eligible for the HAWK–I program even if it is established at a later date that they were not eligible because of administrative error or misrepresentation on the part of the family. These amendments will require participating health plans to coordinate benefits with Medicaid or the other insurers.

• Specify that a family will not be assessed a premium for months of coverage prior to being notified of their eligibility in the program. Currently a family must pay premiums for all months in which eligibility is established. In some cases this means that the family must pay for past months of coverage for periods of time when they did not know they were eligible and may not have received services.

• Clarify the review process and notice requirements.

These amendments do not provide for waivers in specified situations because the amendments either confer a client benefit or add administrative simplicity to the program.

Consideration will be given to all written data, views, and arguments thereto received by the Office of Policy Analysis, Department of Human Services, Hoover State Office Building, Des Moines, Iowa 50319–0114, on or before November 8, 2000.

These amendments are intended to implement Iowa Code chapter 514I.

The following amendments are proposed.

ITEM 1. Amend rule 441—86.1(514I) by rescinding the definition of “administrative contractor.”

ITEM 2. Amend subrule 86.2(2) as follows:

Amend paragraph “b” by adopting the following new subparagraph (42):

(42) Income that has ended as of the date of application.

Amend paragraph “c” as follows:

c. Verification of income. Income shall be verified using the best information available. Earnings For example, earnings from the past 30 days prior to the date of application may be used to verify earned income if it is representative of the income expected in future months. Pay stubs, tip records, tax records and or employers’ statements are acceptable forms of verification of earned income. Unearned income shall be verified through data matches when possible, award letters, warrant copies, or other acceptable means of verification. Self–employment income shall be verified using business records or income tax returns from the previous year if they are representative of anticipated earnings. The third–party administrator may use the income calculation on the Medicaid notice of decision as verification of income for the HAWK–I program when a referral is made to HAWK–I from the Medicaid program.

ITEM 3. Amend subrule 86.3(8) as follows:

86.3(8) Time limit for decision. The third–party administrator shall make a decision regarding the applicant’s eligibility to participate in the HAWK–I program within ten working days from the date of receiving the completed application and all necessary information and verification unless the application cannot be processed within the period for a reason that is beyond the control of the third–party administrator.

EXCEPTION: When the application is referred to the county office of the department for a Medicaid eligibility determination and the application is denied, the third–party administrator shall determine HAWK–I eligibility no later than ten working days from the date of the notice of Medicaid denial.

ITEM 4. Amend subrule 86.4(1) as follows:

86.4(1) HAWK–I applicant appears eligible for Medicaid. At the time of initial application, if it appears the child may be eligible for Medicaid in accordance with the provisionsof rule 441—75.1(249A), with the exception of meetinga spenddown under the medically needy program at 441—subrule 75.1(35), a referral shall be made by the third–party administrator to the county department office for a determination of Medicaid eligibility as follows:

a. The original Healthy and Well Kids in Iowa (HAWK–I) Application, Form 470–3526, and copies of any accompanying information and verification shall be forwarded to the county department office within 24 hours, or the next working day, whichever is sooner. The third–party administrator shall maintain a copy of all documentation sent to the department and a log to track the disposition of all referrals.

b. The third–party administrator shall notify the family that the referral has been made. The notice of the referral to the family shall be accompanied by a Medicaid Supplement to the Healthy and Well Kids in Iowa (HAWK–I) Application, Form 470–3564, and the third–party administrator shall return to the family any original verification and information that was submitted with the application and retain a copy in the file record.

c. No change.

ITEM 5. Amend rule 441—86.5(514I) as follows:

86.5(1) Initial application. Coverage for children who are determined eligible for the HAWK–I program on the basis of an initial application for either HAWK–I or Medicaid shall be effective the first day of the month following the month in which the application is filed, regardless of the day of the month the application is filed, or when a plan becomes available in the applicant’s county of residence.

ITEM 6. Amend rule 441—86.6(514I), introductory paragraph, as follows:

441—86.6(514I) Selection of a plan. At the time of initial application, if there is more than one participating plan available in the child’s county of residence, the applicant shall select the plan in which the applicant wishes to enroll as part of the eligibility process. The enrollee may change plans only at the time of the annual review unless the provisions of subrule 86.7(1) apply. The applicant shall may designate the plan choice verbally or in writing. by completing Form 470–3574, Selection of Plan, may be used for this purpose but is not required.

ITEM 7. Amend subrules 86.7(5) and 86.7(6) as follows:

86.7(5) Eligible for Medicaid. The child shall be disenrolled from the plan and canceled from the program as of the first day of the month following the month in which the third–party administrator is notified of Medicaid eligibility is established. If there are months during which the child is covered by both the Medicaid and HAWK–I programs, the HAWK–I program shall be the primary payor and Medicaid shall be the payor of last resort.

86.7(6) Enrolled in other health insurance coverage. The child shall be disenrolled from the plan as of the first day of the month following the month in which the third–party administrator is notified that the child attained has other health insurance coverage. If there are months during which the child is covered by both another insurance plan and the HAWK–I program, the other insurance plan shall be the primary payor and HAWK–I shall be the payor of last resort.

ITEM 8. Amend subrule 86.8(3) as follows:

86.8(3) Due date. When the third–party administrator notifies the applicant that the applicant is eligible to participate in the program, the applicant shall pay any premiums due within ten working days for the initial month of coverage. No premiums shall be assessed for months of coverage prior to, and including, the month of decision. When the premium is received, the third–party administrator shall notify the plan of the enrollment. After the initial month of coverage, premiums shall be received no later than the last day of the month prior to the month of coverage. Failure to pay the premium by the last day of the month before the month of coverage shall result in disenrollment from the plan. At the request of the family, premiums may be paid in advance (e.g., on a quarterly or semiannual basis) rather than a monthly basis.

ITEM 9. Amend subrules 86.9(1) and 86.9(3) as follows:

86.9(1) Review form. The family third–party administrator shall complete send the family Form 470–3526, Healthy and Well Kids in Iowa (HAWK–I) Application, and on which the answers, except for income, have been completed based on the information on file. The family shall review the completed information for accuracy and fill in the income section of the form. The family shall be required to provide information and verification of current income and sign and date the form attesting to its accuracy as part of the review process.

86.9(3) Change in plan. At the time of the annual review of eligibility, if more than one plan is available, the family shall designate whether the child is to remain enrolled in the current plan or is to may be enrolled in another plan. The plan choice shall may be designated verbally or in writing. by completing Form 470–3574, Healthy and Well Kids in Iowa (HAWK–I) Selection of Plan, may be used for this purpose. The child shall remain enrolled in the current plan if the family does not notify the third–party administrator, either verbally or in writing, of a new plan choice by the end of the current 12–month enrollment period.

ITEM 10. Amend rule 441—86.11(514I) as follows:

441—86.11(514I) Notice requirements. The applicant or enrollee shall be notified in writing provided an adequate written notice of the decision of the third–party administrator regarding the applicant or enrollee’s applicant’s eligibility for the HAWK–I program. If the applicant or The enrollee has been determined to be ineligible, an explanation of the reason shall be provided notified in writing of any decision that adversely affects the enrollee’s eligibility or the amount of benefits. The notice shall be timely and adequate as provided in 441—subrule 7.7(1).

Pursuant to the authority of 2000 Iowa Acts, Senate File 2395, the Information Technology Department hereby gives Notice of Intended Action to adopt Chapter 1, “Organization and Operation,” Iowa Administrative Code.

This chapter sets forth a description of the Information Technology Department’s mission, general information, and administration.

Any interested person may make written or electronic suggestions or comments on the proposed rules on or before November 7, 2000. Such material should be directed to the Information Technology Department, Hoover State Office Building, Des Moines, Iowa 50319; fax (515)281–6137.

Also, there will be a public hearing on November 7, 2000, from 2 to 4 p.m. in the Director’s Conference Room, Information Technology Department, Level B, Hoover State Office Building, at which time persons may present their views either orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record, and to confine their remarks to the subject of the rules. Persons with special needs should contact the Information Technology Department prior to the hearing if accommodations need to be made.

These rules are intended to implement 2000 Iowa Acts, Senate File 2395, and Iowa Code section 17A.

The following new chapter is proposed.

CHAPTER 1
ORGANIZATION AND OPERATION

1.1(1) Mission. The information technology department is established by 2000 Iowa Acts, Senate File 2395. The mission of the department is to foster the development and application of information technology to improve the lives of Iowans.

1.1(2) Location. The information technology department is located in the Hoover State Office Building, Level B, Des Moines, Iowa 50319. The general office telephone number is (515)281–5503. Hours of operation are 8 a.m. to 4:30 p.m., Monday through Friday. The Department Web site is located at www.state.ia.us/government/its. Electronic mail regarding administrative rules may be submitted to ITD.Rules@ its.state.ia.us.

1.1(3) Information. Complaints, inquiries and requests for information (under Iowa Code chapter 22) may be submitted in writing, in person, by mail, or by electronic mail to the information technology department.

1.2(1) Director. The chief information officer for the state is the director of the information technology department and is appointed by the governor and subject to confirmation by two–thirds of the members of the senate. The director serves at the pleasure of the governor.

1.2(2) Information technology council. The information technology council is granted authority to oversee the department and information technology activities of participating agencies. The information technology council shall annually elect its own chairperson from among the voting members of the council. The director of the information technology department may not serve as chairperson.

1.2.(3) Divisions of the information technology department. The following divisions, created by 2000 Iowa Acts, Senate File 2395, make up the information technology department. Each division is managed by an administrator appointed by the governor and subject to confirmation by two–thirds of the members of the senate.

a. Policy and planning division. This division is responsible for the integration of information technology into all business aspects of state government.

b. Operations division. This division is responsible for providing server systems, including mainframe and other server operations, desktop support, and applications integration.

c. Customer liaison division. This division is responsible for support and promotion of departmental services and information technology; providing applications development, support, and training; and providing advice and assistance in developing and supporting business applications throughout state government.

d. Administration division. This division is responsible for the financial, personnel, and other administrative functions of the department. The administration division is also responsible for all information technology purchasing and contract administration for the information technology department.

1.2(4) Subunits of the information technology department.

a. Digital government bureau. The digital government bureau is responsible for initiating and supporting the development of electronic commerce, electronic government, and Internet applications across participating agencies and in cooperation with other governmental entities. The administrator of the digital government bureau is appointed by the governor and subject to confirmation by two–thirds of the members of the senate.

b. IOWAccess advisory council. The IOWAccess advisory council is established within the information technology department for the purpose of creating and providing a service to the citizens of this state that is the gateway for one–stop electronic access to government information and transactions, whether federal, state, or local.

These rules are intended to implement 2000 Iowa Acts, Senate File 2395.

Pursuant to the authority of 2000 Iowa Acts, Senate File 2395, the Information Technology Department hereby gives Notice of Intended Action to adopt Chapter 2, “Fair Information Practices,” Iowa Administrative Code.

This chapter facilitates both broad public access to open records and sound agency determinations regarding the handling of confidential records and the implementation of the Fair Information Practices Act. This chapter defines specific terms used by the Department regarding information practices, and it specifies which records are confidential and may be withheld from public inspection under Iowa law.

The chapter also lays out the manner in which open and confidential records held within the Department can be accessed, the approach taken in treating records as confidential, and the procedures by which additions, dissents, or objections may be entered into particular records. In addition, the chapter explains the procedure by which a person who is the subject of a confidential record can consent to the disclosure of such record and the procedure by which the Department shall notify suppliers of information as to the use of such information.

Any interested person may make written or electronic suggestions or comments on the proposed adoption on or before November 7, 2000. Such material should be directed to the Information Technology Department, Level B, Hoover State Office Building, Des Moines, Iowa 50319; fax (515) 281–6137.

Also, there will be a public hearing on November 7, 2000, from 2 to 4 p.m. in the Director’s Conference Room, Information Technology Department, Level B, Hoover State Office Building, at which time persons may present their views either orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of the rules. Persons with special needs may contact the Information Technology Department prior to the hearing if accommodations need to be made.

These rules are intended to implement 2000 Iowa Acts, Senate File 2395, and Iowa Code chapter 17A.

The following new chapter is proposed.

CHAPTER 2
FAIR INFORMATION PRACTICES

471—2.1(17A,22) Definitions. As used in this chapter:

“Agency” in these rules means the information technology department.

“Confidential record” means a record which is not available as a matter of right for examination and copying by members of the public under applicable provisions of law. Confidential records include records or information contained in records that the information technology department is prohibited by law from making available for examination by members of the public, and records or information contained in records that are specified as confidential by Iowa Code section 22.7, or other provision of law, but that may be disclosed upon order of a court, the lawful custodian of the record, or by another person duly authorized to release the record. Mere inclusion in a record of information declared confidential by an applicable provision of law does not necessarily make that entire record a confidential record.

“Custodian” means the agency, or a person lawfully delegated authority by the agency to act for the agency, in implementing Iowa Code chapter 22.

“Open record” means a record other than a confidential record.

“Personally identifiable information” means information about or pertaining to an individual in a record which identifies the individual and which is contained in a record system.

“Record” means the whole or a part of a “public record” as defined in Iowa Code section 22.1, that is owned by or in the physical possession of the information technology department.

“Record system” means any group of records under the control of the agency from which a record may be retrieved by a personal identifier such as the name of an individual, number, symbol, or other unique retriever assigned to an individual.

471—2.2(17A,22) Statement of policy. The purpose of this chapter is to facilitate broad public access to open records. It also seeks to facilitate sound agency determinations with respect to the handling of confidential records and the implementation of the fair information practices Act. This agency is committed to the policies set forth in Iowa Code chapter 22; agency staff shall cooperate with members of the public in implementing the provisions of that chapter.

2.3(1) Location of record. A request for access to a record should be directed to the chief information officer or the particular agency office where the record is kept. If the location of the record is not known by the requester, the request shall be directed to the Information Technology Department, Hoover State Office Building, Level B, Des Moines, Iowa 50319. If a request for access to a record is misdirected, agency personnel will promptly forward the request to the appropriate person within the agency.

2.3(2) Office hours. Open records shall be made available during all customary office hours, which are 8 a.m. to 4:30 p.m., Monday through Friday.

2.3(3) Requests for access. Requests for access to open records may be made in writing, in person, electronically, or by telephone. Requests shall identify the particular records sought by name or description in order to facilitate the location of the record. Mail, electronic, or telephone requests shall include the name, address, and telephone number of the person requesting the information. A person shall not be required to give a reason for requesting an open record.

2.3(4) Response to requests. Access to an open record shall be provided promptly upon request unless the size or nature of the request makes prompt access infeasible. If the size or nature of the request for access to an open record requires time for compliance, the custodian shall comply with the request as soon as feasible. Access to an open record may be delayed for one of the purposes authorized by Iowa Code section 22.8(4) or 22.10(4). The custodian shall promptly give notice to the requester of the reason for any delay in access to an open record and an estimate of the length of that delay and, upon request, shall promptly provide that notice to the requester in writing.

The custodian of a record may deny access to the record by members of the public only on the grounds that such a denial is warranted under Iowa Code sections 22.8(4) and 22.10(4), or that it is a confidential record, or that its disclosure is prohibited by a court order. Access by members of the public to a confidential record is limited by law and, therefore, may generally be provided only in accordance with the provisions of rule 2.4(17A,22) and other applicable provisions of law.

2.3(5) Security of record. No person may, without permission from the custodian, search or remove any record from agency files. Examination and copying of agency rec–ords shall be supervised by the custodian or a designee of the custodian. Records shall be protected from damage and disorganization.

2.3(6) Copying. A reasonable number of copies of an open record may be made in the agency’s office. If photo–copy equipment is not available in the agency office where an open record is kept, the custodian shall permit its examination in that office and shall arrange to have copies promptly made elsewhere.

2.3(7) Fees.

a. When charged. The agency may charge fees in connection with the examination or copying of records only if the fees are authorized by law. To the extent permitted by applicable provisions of law, the payment of fees may be waived when the imposition of fees is inequitable or when a waiver is in the public interest.

b. Copying and postage costs. Price schedules for published materials and for photocopies of records supplied by the agency shall be prominently posted in agency offices. Copies of records may be made by or for members of the public on agency photocopy machines or from electronic storage systems at cost as determined and posted in agency offices by the custodian. When the mailing of copies of rec–ords is requested, the actual costs of such mailing may also be charged to the requester.

c. Supervisory fee. An hourly fee may be charged for actual agency expenses in supervising the examination and copying of requested records when the supervision time required is in excess of one–half hour. The custodian shall prominently post in agency offices the hourly fees to be charged for supervision of records during examination and copying. That hourly fee shall not be in excess of the hourly wage of an agency clerical employee who ordinarily would be appropriate and suitable to perform this supervisory function.

d. Search fees. If the request requires research or if the record or records cannot reasonably be readily retrieved by the office, the requester will be advised of this fact. Reasonable search fees may be charged when appropriate. In addition, all costs for retrieval and copying of information stored in electronic storage systems may be charged to the requester.

e. Advance deposits.

(1) When the estimated total fee chargeable under this subrule exceeds $25, the custodian may require a requester to make an advance payment to cover all or a part of the estimated fee.

(2) When a requester has previously failed to pay a fee chargeable under this subrule, the custodian may require advance payment of the full amount of any estimated fee before the custodian processes a new request from that requester.

471—2.4(17A,22) Access to confidential records. Under Iowa Code section 22.7 or other applicable provisions of law, the lawful custodian may disclose certain confidential rec–ords to one or more members of the public. Other provisions of law authorize or require the custodian to release specified confidential records under certain circumstances or to particular persons. In requesting the custodian to permit the examination and copying of such a confidential record, the following procedures apply and are in addition to those specified for requests for access to records in rule 2.3(17A,22).

2.4(1) Proof of identity. A person requesting access to a confidential record may be required to provide proof of identity or authority to secure access to the record.

2.4(2) Requests. The custodian may require a request to examine and copy a confidential record to be in writing. A person requesting access to such a record may be required to sign a certified statement or affidavit enumerating the specific reasons justifying access to the confidential record and to provide any proof necessary to establish relevant facts.

2.4(3) Notice to subject of record and opportunity to obtain injunction. After the custodian receives a request for access to a confidential record, and before the custodian releases such a record, the custodian may make reasonable efforts to notify promptly any person who is a subject of that record, is identified in that record, and whose address or telephone number is contained in that record. To the extent such a delay is practicable and in the public interest, the custodian may give the subject of such a confidential record to whom notification is transmitted a reasonable opportunity to seek an injunction under Iowa Code section 22.8, and indicate to the subject of the record the specific period of time during which disclosure will be delayed for that purpose.

2.4(4) Request denied. When the custodian denies a request for access to a confidential record, the custodian shall promptly notify the requester. If the requester indicates to the custodian that a written notification of the denial is desired, the custodian shall promptly provide such a notification that is signed by the custodian and that includes:

a. The name and title or position of the custodian responsible for the denial; and

b. A citation to the provision of law vesting authority in the custodian to deny disclosure of the record and a brief statement of the reasons for the denial to this requester.

2.4(5) Request granted. When the custodian grants a request for access to a confidential record to a particular person, the custodian shall notify that person and indicate any lawful restrictions imposed by the custodian on that person’s examination and copying of the record.

471—2.5(17A,22) Requests for treatment of a record as a confidential record and its withholding from examination. The custodian may treat a record as a confidential record and withhold it from examination only to the extent that the custodian is authorized by Iowa Code section 22.7, another applicable provision of law, or a court order, to refuse to disclose that record to members of the public.

2.5(1) Persons who may request. Any person who would be aggrieved or adversely affected by disclosure of a record and who asserts that Iowa Code section 22.7, another applicable provision of law, or a court order, authorizes the custodian to treat the record as a confidential record, may request the custodian to treat that record as a confidential record and to withhold it from public inspection.

2.5(2) Request. A request that a record be treated as a confidential record and be withheld from public inspection shall be in writing and shall be filed with the custodian. The request must set forth the legal and factual basis justifying such confidential record treatment for that record, and the name, address, and telephone number of the person authorized to respond to any inquiry or action of the custodian concerning the request. A person requesting treatment of a record as a confidential record may also be required to sign a certified statement or affidavit enumerating the specific reasons justifying the treatment of that record as a confidential record and to provide any proof necessary to establish relevant facts. Requests for treatment of a record as such a confidential record for a limited time period shall also specify the precise period of time for which that treatment is requested.

A person filing such a request shall, if possible, accompany the request with a copy of the record in question in which portions for which such confidential record treatment has been requested have been deleted. If the original record is being submitted to the agency by the person requesting such confidential treatment at the time the request is filed, the person shall indicate conspicuously on the original record that all or portions of it are confidential.

2.5(3) Failure to request. Failure of a person to request confidential record treatment for a record does not preclude the custodian from treating it as a confidential record. How–ever, if a person who has submitted business information to the agency does not request that it be withheld from public inspection under Iowa Code sections 22.7(3) and 22.7(6), the custodian of records containing that information may proceed as if that person has no objection to its disclosure to members of the public.

2.5(4) Timing of decision. A decision by the custodian with respect to the disclosure of a record to members of the public may be made when a request for its treatment as a confidential record that is not available for public inspection is filed, or when the custodian receives a request for access to the record by a member of the public.

2.5(5) Request granted or deferred. If a request for such confidential record treatment is granted, or if action on such a request is deferred, a copy of the record in which the matter in question has been deleted and a copy of the decision to grant the request or to defer action upon the request will be made available for public inspection in lieu of the original record. If the custodian subsequently receives a request for access to the original record, the custodian will make reasonable and timely efforts to notify any person who has filed a request for its treatment as a confidential record that is not available for public inspection of the pendency of that subsequent request.

2.5(6) Request denied and opportunity to seek injunction. If a request that a record be treated as a confidential record and be withheld from public inspection is denied, the custodian shall notify the requester in writing of that determination and the reasons therefor. On application by the requester, the custodian may engage in good faith, reasonable delay in allowing examination of the record so that the requester may seek injunctive relief under the provisions of Iowa Code section 22.8, or other applicable provision of law. However, such a record shall not be withheld from public inspection for any period of time if the custodian determines that the requester had no reasonable grounds to justify the treatment of that record as a confidential record. The custodian shall notify the requester in writing of the time period allowed to seek injunctive relief or the reasons for the determination that no reasonable grounds exist to justify the treatment of that record as a confidential record. The custodian may extend the period of good faith, reasonable delay in allowing examination of the record so that the requester may seek injunctive relief only if no request for examination of that record has been received, or if a court directs the custodian to treat it as a confidential record, or to the extent permitted by another applicable provision of law, or with the consent of the person requesting access.

471—2.6(17A,22) Procedure by which additions, dissents, or objections may be entered into certain records. Except as otherwise provided by law, a person may file a request with the custodian to review, and to have a written statement of additions, dissents, or objections entered into, a record containing personally identifiable information pertaining to that person. However, this does not authorize a person who is a subject of such a record to alter the original copy of that record to expand the official record of any agency proceeding. Requester shall send the request to review such a record or the written statement of additions, dissents, or objections to the custodian or to the chief information officer. The request to review such a record or the written statement of such a record of additions, dissents, or objections must be dated and signed by requester, and shall include the current address and telephone number of the requester or the requester’s representative.

471—2.7(17A,22) Consent to disclosure by the subject of a confidential record. To the extent permitted by any applicable provision of law, a person who is the subject of a confidential record may have a copy of the portion of that record concerning the subject disclosed to a third party. A request for such a disclosure must be in writing and must identify the particular record or records that may be disclosed, and the particular person or class of persons to whom the record may be disclosed (and, where applicable, the time period during which the record may be disclosed). The person who is the subject of the record and, where applicable, the person to whom the record is to be disclosed, may be required to provide proof of identity. Additional requirements may be necessary for special classes of records. Appearance of counsel before the agency on behalf of a person who is the subject of a confidential record is deemed to constitute consent for the agency to disclose records about that person to the person’s attorney.

471—2.8(17A,22) Notice to suppliers of information. When the agency requests a person to supply information about that person, that agency shall notify the person of the use that will be made of the information, which persons outside the agency might routinely be provided this information, which parts of the requested information are required and which are optional, and the consequences of a failure to provide the information requested. This notice may be given in these rules, on the written form used to collect the information, on a separate fact sheet or letter, in brochures, in formal agreements, in contracts, in handbooks, in manuals, verbally, or by other appropriate means.

471—2.9(17A,22) Confidential records. The followingrecords may be withheld from public inspection under Iowa law.

1. Records which are exempt from disclosure under Iowa Code section 22.7.

2. Minutes of closed meetings of a government body. (See Iowa Code section 21.5(4).)

3. Records which constitute attorney work product,attorney–client communications, or which are otherwise privileged. (See Iowa Code section 22.7(4), 622.10 and 622.11.)

4. Reports to governmental agencies which, if released, would give an advantage to competitors and serve no public purpose. (See Iowa Code section 22.7.)

5. Personal information in confidential personnel rec–ords of public bodies including but not limited to cities, boards of supervisors, and school districts.

6. Communications not required by law, rule, or procedure that are made to a government body or to any of its employees by identified persons outside of government, to the extent that the government body receiving those communications from such persons outside of government could reasonably believe that those persons would be discouraged from making communications to that government body if the communications were available for general public examination. (See Iowa Code section 22.7.)

7. Information contained in records of the centralized employee registry created in Iowa Code chapter 252G, except to the extent that disclosure is authorized pursuant to Iowa Code chapter 252G. (See Iowa Code section 22.7.)

8. Data processing software, as defined in Iowa Code section 22.3A, which is developed by a government body.

9. Log–on identification passwords, Internet protocol addresses, private keys, or other records containing information which might lead to the disclosure of private keys used in a digital signature or other similar technologies as provided in Iowa Code chapter 554D.

10. Records which if disclosed might jeopardize the security of an electronic transaction pursuant to Iowa Code chapter 554D.

These rules are intended to implement Iowa Code chapter 17A and 2000 Iowa Acts, Senate File 2395.

Pursuant to the authority of 2000 Iowa Acts, Senate File 2395, the Information Technology Department hereby gives Notice of Intended Action to adopt Chapter 3, “Petitions for Rule Making,” Iowa Administrative Code.

This chapter creates a policy in which any person or agency may file a petition for rule making with the Information Technology Department. The chapter details how such a person or agency is to file the petition and what must be included in the submitted petition. The chapter explains how briefs in support of an action may be attached to the petition and how persons or agencies may inquire into the status of a submitted petition. In addition, the chapter specifies what considerations the Department must take into account regarding such submitted petitions.

Any interested person may make written or electronic suggestions or comments on the proposed adoption on or before November 7, 2000. Such material should be directed to the Information Technology Department, Level B, Hoover State Office Building, Des Moines, Iowa 50319; fax (515) 281–6137.

Also, there will be a public hearing on November 7, 2000, from 2 to 4 p.m. in the Director’s Conference Room, Information Technology Department, Level B, Hoover State Office Building, at which time persons may present their views either orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of the rules. Persons with special needs may contact the Information Technology Department prior to the hearing if accommodations need to be made.

These rules are intended to implement 2000 Iowa Acts, Senate File 2395, and Iowa Code section 17A.

The following new chapter is proposed.

CHAPTER 3
PETITIONS FOR RULE MAKING

471—3.1(17A) Petition for rule making. Any person or agency may file a petition for rule making with the Information Technology Department at Hoover State Office Building, Level B, Des Moines, Iowa 50319. A petition is deemed filed when it is received by the department. The department must provide the petitioner with a file–stamped copy of the petition if the petitioner provides the department an extra copy for this purpose. The petition must be typewritten or legibly handwritten in ink and must substantially conform to the following form:

The petition must provide the following information:

1. A statement of the specific rule–making action sought by the petitioner including the text or a summary of the contents of the proposed rule or amendment to a rule and, if it is a petition to amend or repeal a rule, a citation and the relevant language to the particular portion or portions of the rule proposed to be amended or repealed.

2. A citation to any law deemed relevant to the council’s authority to take the action urged or to the desirability of that action.

3. A brief summary of petitioner’s arguments in support of the action urged in the petition.

4. A brief summary of any data supporting the action urged in the petition.

5. The names and addresses of other persons, or a description of any class of persons, known by petitioner to be affected by or interested in, the proposed action which is the subject of the petition.

6. Any request by petitioner for a meeting provided for by rule 3.4(17A).

3.1(1) The petition must be dated and signed by the petitioner or the petitioner’s representative. It must also include the name, mailing address, and telephone number of the petitioner and petitioner’s representative, and a statement indicating the person to whom communications concerning the petition should be directed.

3.1(2) The council may deny a petition because it does not substantially conform to the required form.

471—3.2(17A) Briefs. The petitioner may attach a brief to the petition in support of the action urged in the petition. The council may request a brief from the petitioner or from any other person concerning the substance of the petition.

471—3.3(17A) Inquiries. Inquiries concerning the status of a petition for rule making may be made to the Chief Information Officer, Information Technology Department, Hoover State Office Building, Level B, Des Moines, Iowa 50319.

3.4(1) Within 14 days after the filing of a petition, the department must submit a copy of the petition and any accompanying brief to the administrative rules coordinator and to the administrative rules review committee. Upon request by petitioner in the petition, the department must schedule a brief and informal meeting between the petitioner and the council, a member of the council, or a member of the staff of the department or council, to discuss the petition. The department may request the petitioner to submit additional information or argument concerning the petition. Also, any person may submit comments on the substance of the petition to the department.

3.4(2) Within 60 days after the filing of the petition, or within any longer period agreed to by the petitioner, the council must, in writing, deny the petition, and notify petitioner of its action and the specific grounds for the denial, or grant the petition and notify petitioner that it has instituted rule–making proceedings on the subject of the petition. The petitioner shall be deemed notified of the denial or grant of the petition on the date when the required notification to petitioner is mailed or delivered.

3.4(3) Denial of a petition because it does not substantially conform to the required form does not preclude the filing of a new petition on the same subject that seeks to eliminate the grounds for the department’s rejection of the petition.

These rules are intended to implement Iowa Code chapter 17A and 2000 Iowa Acts, Senate File 2395.

Pursuant to the authority of 2000 Iowa Acts, Senate File 2395, the Information Technology Department hereby gives Notice of Intended Action to adopt Chapter 4, “Agency Procedure for Rule Making,” Iowa Administrative Code.

This chapter creates measures that the Information Technology Department is to follow when making rules. It provides that the Department shall give notice to the public and solicit comments from the public on a subject matter of possible rule making, and that the Department shall maintain a current public rule–making docket and explains what should be included in the docket. In addition, the chapter sets forth the procedures by which the public may participate in the department’s rule making.

The chapter explains the procedures by which the Department is to register small businesses or organizations on the Department’s small business impact list, and it supplies the Department with guidelines concerning the issuing of fiscal impact statements.

The chapter also describes policies concerning the time and manner of rule adoption, the variance between the adopted rule and the published notice of proposed rule adoption, the exemptions from the public rule–making procedures, and the contents, style, and form of rules.

The chapter gives details about the Department maintaining an official rule–making record for each rule it proposes, about the Department’s filing of rules, and about the effectiveness of rules prior to publication. In addition, the chapter provides for a general statement of policy and how the Department is to review rules.

Any interested person may make written or electronic suggestions or comments on the proposed rules on or before November 7, 2000. Such material should be directed to the Information Technology Department, Level B, Hoover State Office Building, Des Moines, Iowa 50319; fax (515) 281–6137.

Also, there will be a public hearing on November 7, 2000, from 2 to 4 p.m. in the Director’s Conference Room, Information Technology Department, Level B, Hoover State Office Building, at which time persons may present their views either orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record, and to confine their remarks to the subject of the rules. Persons with special needs should contact the Information Technology Department prior to the hearing if accommodations need to be made.

These rules are intended to implement 2000 Iowa Acts, Senate File 2395, and Iowa Code chapter 17A.

The following new chapter is proposed.

CHAPTER 4
AGENCY PROCEDURE FOR RULE MAKING

471—4.1(17A) Applicability. Except to the extent otherwise expressly provided by statute, all rules adopted by the department are subject to the provisions of Iowa Code chapter 17A, the Iowa administrative procedure Act, and the provisions of this chapter.

471—4.2(17A) Advice on possible rules before notice of proposed rule adoption. In addition to seeking information by other methods, the department may, before publication of a Notice of Intended Action under Iowa Code section 17A.4(1)“a,” solicit comments from the public on a subject matter of possible rule making by the council by causing notice to be published in the Iowa Administrative Bulletin of the subject matter and indicating where, when, and how persons may comment.

4.3(1) Docket maintained. The department shall maintain a current public rule–making docket.

4.3(2) Anticipated rule making. The rule–making docket shall list each anticipated rule–making proceeding. A rule–making proceeding is deemed “anticipated” from the time a draft of proposed rules is distributed for internal discussion within the department. For each anticipated rule–making proceeding the docket shall contain a listing of the precise subject matter which may be submitted for consideration by the council for subsequent proposal under the provisions of Iowa Code section 17A.4(1)“a,” the name and address of department personnel with whom persons may communicate with respect to the matter, and an indication of the present status within the agency of that possible rule. The department may also include in the docket other subjects upon which public comment is desired.

4.3(3) Pending rule–making proceedings. The rule–making docket shall list each pending rule–making proceeding. A rule–making proceeding is pending from the time it is commenced, by publication in the Iowa Administrative Bulletin of a Notice of Intended Action pursuant to Iowa Code section 17A.4(1)“a,” to the time it is terminated, by publication of a Notice of Termination in the Iowa Administrative Bulletin or the rule’s becoming effective. For each rule–making proceeding, the docket shall indicate:

a. The subject matter of the proposed rule;

b. A citation to all published notices relating to the proceeding;

c. Where written submissions on the proposed rule may be inspected;

d. The time during which written submissions may be made;

e. The names of persons who have made written requests for an opportunity to make oral presentations on the proposed rule, where those requests may be inspected, and where and when oral presentations may be made;

f. Whether a written request for the issuance of a regulatory analysis, or a concise statement of reasons, has been filed; whether such an analysis or statement or a fiscal impact statement has been issued; and where any such written request, analysis, or statement may be inspected;

g. The current status of the proposed rule and any council determination with respect thereto;

h. Any known timetable for council decisions or other action in the proceeding;

i. The date of the rule’s adoption;

j. The date of the rule’s filing, indexing, and publication;

k. The date on which the rule will become effective; and

l. Where the rule–making record may be inspected.

4.4(1) Contents. At least 35 days before the adoption of a rule the department shall cause a Notice of Intended Action to be published in the Iowa Administrative Bulletin. The Notice of Intended Action shall include:

a. A brief explanation of the purpose of the proposed rule;

b. The specific legal authority for the proposed rule;

c. Except to the extent impracticable, the text of the proposed rule;

d. Where, when, and how persons may present their views on the proposed rule; and

e. Where, when, and how persons may demand an oral proceeding on the proposed rule if the notice does not already provide for one.

Where inclusion of the complete text of a proposed rule in the Notice of Intended Action is impracticable, the department shall include in the notice a statement fully describing the specific subject matter of the omitted portion of the text of the proposed rule, the specific issues to be addressed by that omitted text of the proposed rule, and the range of possible choices being considered by the department for the resolution of each of those issues.

4.4(2) Incorporation by reference. A proposed rule may incorporate other materials by reference only if it complies with all of the requirements applicable to the incorporation by reference of other materials in an adopted rule that are contained in subrule 4.12(2) of this chapter.

4.4(3) Copies of notices. Persons desiring to receive copies of future Notices of Intended Action by subscription must file with the department a written request indicating the name and address to which such notices should be sent. Within seven days after submission of a Notice of Intended Action to the Administrative Rules Coordinator for publication in the Iowa Administrative Bulletin, the agency shall mail or electronically transmit a copy of that notice to subscribers who have filed a written request for either mailing or electronic transmittal with the agency for Notices of Intended Action. The written request shall be accompanied by payment of the subscription price which may cover the full cost of the subscription service, including its administrative overhead and the cost of copying and mailing the Notices of Intended Action for a period of one year. Inquiries regarding the subscription price should be directed to the administrative assistant to the chief information officer.

4.5(1) Written comments. For at least 20 days after publication of the Notice of Intended Action, persons may submit argument, data, and views, in writing, on the proposed rule. Such written submissions should identify the proposed rule to which they relate and should be submitted to the Information Technology Department, Level B, Hoover State Office Building, Des Moines, Iowa 50319, or to the person designated in the Notice of Intended Action.

4.5(2) Oral proceedings. The department may, at any time, schedule an oral proceeding on a proposed rule. The department shall schedule an oral proceeding on a proposed rule if, within 20 days after the published Notice of Intended Action, a written request for an opportunity to make oral presentations is submitted to the department by the administrative rules review committee, a governmental subdivision, an agency, an association having not less than 25 members, or at least 25 persons. That request must also contain the following additional information:

1. A request by at least 25 persons must be signed by each of them and include the address and telephone number of each person making the request.

2. A request by an association must be signed by an officer or designee of the association and must contain a statement that the association has at least 25 members and the address and telephone number of the person signing that request.

3. A request by an agency or governmental subdivision must be signed by an official having authority to act on behalf of the entity and must contain the address and telephone number of the person signing that request.

4.5(3) Conduct of oral proceedings.

a. Applicability. This subrule applies only to those oral rule–making proceedings in which an opportunity to make oral presentations is authorized or required by Iowa Code section 17A.4(1)“b” or this chapter.

b. Scheduling and notice. An oral proceeding on a proposed rule may be held in one or more locations and shall not be held earlier than 20 days after notice of its location and time is published in the Iowa Administrative Bulletin. That notice shall also identify the proposed rule by ARC number and citation to the Iowa Administrative Bulletin.

c. Presiding officer. The council, a member of the council, legal counsel to the council, or another person designated by the council who will be familiar with the substance of the proposed rule, shall preside at the oral proceeding on a proposed rule. If the council does not preside, the presiding officer shall prepare a memorandum for consideration by the council summarizing the contents of the presentations made at the oral proceeding unless the council determines that such a memorandum is unnecessary because the council will personally listen to or read the entire transcript of the oral proceeding.

d. Conduct of proceeding. At an oral proceeding on a proposed rule, persons may make oral statements and make documentary and physical submissions, which may include data, views, comments or arguments concerning the proposed rule. Persons wishing to make oral presentations at such a proceeding are encouraged to notify the council at least one business day prior to the proceeding and indicate the general subject of their presentations. At the proceeding, those who participate shall indicate their names and addresses, identify any persons or organizations they may represent, and provide any other information relating to their participation deemed appropriate by the presiding officer. Oral proceedings shall be open to the public and shall be recorded by stenographic or electronic means.

(1) At the beginning of the oral proceeding, the presiding officer shall give a brief synopsis of the proposed rule, a statement of the statutory authority for the proposed rule, and the reasons for the agency decision to propose the rule. The presiding officer may place time limitations on individual oral presentations when necessary to ensure the orderly and expeditious conduct of the oral proceeding. To encourage joint oral presentations and to avoid repetition, additional time may be provided for persons whose presentations represent the views of other individuals as well as their own views.

(2) Persons making oral presentations are encouraged to avoid restating matters which have already been submitted in writing.

(3) To facilitate the exchange of information, the presiding officer may, where time permits, open the floor to questions or general discussion.

(4) The presiding officer shall have the authority to take any reasonable action necessary for the orderly conduct of the meeting.

(5) Physical and documentary submissions presented by participants in the oral proceeding shall be submitted to the presiding officer. Such submissions become the property of the department.

(6) The oral proceeding may be continued by the presiding officer to a later time without notice other than by announcement at the hearing.

(7) Participants in an oral proceeding shall not be required to take an oath or submit to cross–examination. However, the presiding officer in an oral proceeding may question participants and permit the questioning of participants by other participants about any matter relating to that rule–making proceeding, including any prior written submissions made by those participants in that proceeding; but no participant shall be required to answer any question.

(8) The presiding officer in an oral proceeding may permit rebuttal statements and request the filing of written statements subsequent to the adjournment of the oral presentations.

4.5(4) Additional information. In addition to receiving written comments and oral presentations on a proposed rule according to the provisions of this rule, the department may obtain information concerning a proposed rule through any other lawful means deemed appropriate under the circumstances.

4.5(5) Accessibility. The department shall schedule oral proceedings in rooms accessible to and functional for persons with physical disabilities. Persons who have special requirements should contact the information technology department at (515)281–5503 in advance to arrange access or other needed services.

4.6(1) Definition of small business. A “small business” is defined in Iowa Code section 17A.4A(7).

4.6(2) Mailing list. Small businesses or organizations of small businesses may be registered on the department’s small business impact list by making a written application addressed to the rules administrator. The application for registration shall state:

a. The name of the small business or organization of small businesses;

b. Its address;

c. The name of a person authorized to transact business for the applicant;

d. A description of the applicant’s business or organization. An organization representing 25 or more persons who qualify as a small business shall indicate that fact.

e. Whether the registrant desires copies of Notices of Intended Action at cost, or desires advance notice of the subject of all or some specific category of proposed rule making affecting small business.

The department may at any time request additional information from the applicant to determine whether the applicant is qualified as a small business or as an organization of 25 or more small businesses. The department may periodically send a letter to each registered small business or organization of small businesses asking whether that business or organization wishes to remain on the registration list. The name of a small business or organization of small businesses will be removed from the list if a negative response is received, or if no response is received within 30 days after the letter is sent.

4.6(3) Time of mailing. Within seven days after submission of a Notice of Intended Action to the administrative rules coordinator for publication in the Iowa Administrative Bulletin, the department shall mail to all registered small businesses or organizations of small businesses, in accordance with their request, either a copy of the Notice of Intended Action or notice of the subject of that proposed rule making. In the case of a rule that may have an impact on small business adopted in reliance upon Iowa Code section 17A.4(2), the department shall mail notice of the adopted rule to registered businesses or organizations prior to the time the adopted rule is published in the Iowa Administrative Bulletin.

4.6(4) Qualified requesters for regulatory analysis—economic impact. The department shall issue a regulatory analysis of a proposed rule that conforms to the requirements of Iowa Code section 17A.4A(2)“a” after a proper request from:

a. The administrative rules coordinator;

b. The administrative rules review committee.

4.6(5) Qualified requesters for regulatory analysis—business impact. The agency shall issue a regulatory analysis of a proposed rule that conforms to the requirements of Iowa Code section 17A.4A(2)“b” after a proper request from:

a. The administrative rules coordinator;

b. The administrative rules review committee;

c. At least 25 or more persons who sign the request provided that each represents a different small business;

d. An organization representing at least 25 small businesses. That organization shall list the name, address and telephone number of not less than 25 small businesses it represents.

4.6(6) Time period for analysis. Upon receipt of a timely request for a regulatory analysis the department shall adhere to the time lines described in Iowa Code section 17A.4A(4).

4.6(7) Contents of request. A request for a regulatory analysis is made when it is mailed or delivered to the agency. The request shall be in writing and satisfy the requirements of Iowa Code section 17A.4A(1).

4.6(8) Contents of concise summary. The contents of the concise summary shall conform to the requirements of Iowa Code section 17A.4A(4) and (5).

4.6(9) Publication of a concise summary. The department shall make available, to the maximum extent feasible, copies of the published summary in conformance with Iowa Code section 17A.4A(5).

4.6(10) Regulatory analysis contents—rules review committee or rules coordinator. When a regulatory analysis is issued in response to a written request from the administrative rules review committee, or the administrative rules coordinator, the regulatory analysis shall conform to the requirements of Iowa Code section 17A.4A(2)“a,” unless a written request expressly waives one or more of the items listed in the section.

4.6(11) Regulatory analysis contents—substantial impact on small business. When a regulatory analysis is issued in response to a written request from the administrative rules review committee, the administrative rules coordinator, at least 25 persons signing that request who each qualify as a small business or by an organization representing at least 25 small businesses, the regulatory analysis shall conform to the requirements of Iowa Code section 17A.4A(2)“b.”

4.7(1) A proposed rule that mandates additional combined expenditures exceeding $100,000 by all affected political subdivisions or agencies and entities which contract with political subdivisions to provide services must be accompanied by a fiscal impact statement outlining the costs associated with the rule. A fiscal impact statement must satisfy the requirements of Iowa Code section 25B.6.

4.7(2) If the council determines at the time it adopts a rule that the fiscal impact statement upon which the rule is based contains errors, the council shall, at the same time, issue a corrected fiscal impact statement and publish the corrected fiscal impact statement in the Iowa Administrative Bulletin.

4.8(1) Time of adoption. The council shall not adopt a rule until the period for making written submissions and oral presentations has expired. Within 180 days after the later of the publication of the Notice of Intended Action, or the end of oral proceedings thereon, the council shall adopt a rule pursuant to the rule–making proceeding or terminate the proceeding by publication of a notice to that effect in the Iowa Administrative Bulletin.

4.8(2) Consideration of public comment. Before the adoption of a rule, the council shall consider fully all of the written submissions and oral submissions received in that rule–making proceeding or any memorandum summarizing such oral submissions, and any regulatory analysis or fiscal impact statement issued in that rule–making proceeding.

4.8(3) Reliance on agency expertise. Except as otherwise provided by law, the council may use its own experience, technical competence, specialized knowledge, and judgment in the adoption of a rule.

4.9(1) The council shall not adopt a rule that differs from the rule proposed in the Notice of Intended Action on which the rule is based unless:

a. The differences are within the scope of the subject matter announced in the Notice of Intended Action and are in character with the issues raised in that notice; and

b. The differences are a logical outgrowth of the contents of that Notice of Intended Action and the comments submitted in response thereto; and

c. The Notice of Intended Action provided fair warning that the outcome of that rule–making proceeding could be the rule in question.

4.9(2) In determining whether the Notice of IntendedAction provided fair warning that the outcome of that rule–making proceeding could be the rule in question, the council shall consider the following factors:

a. The extent to which persons who will be affected by the rule should have understood that the rule–making proceeding on which it is based could affect their interests;

b. The extent to which the subject matter of the rule or the issues determined by the rule are different from the subject matter or issues contained in the Notice of Intended Action.

4.9(3) The council shall commence a rule–making proceeding within 60 days of its receipt of a petition for rule making seeking the amendment or repeal of a rule that differs from the proposed rule contained in the Notice of Intended Action upon which the rule is based, unless the council finds that the differences between the adopted rule and the proposed rule are so insubstantial as to make such a rule–making proceeding wholly unnecessary. A copy of any such finding and the petition to which it responds shall be sent to the petitioner, the administrative rules coordinator, and the administrative rules review committee, within three days of its issuance.

4.9(4) Concurrent rule–making proceedings. Nothing in this rule disturbs the discretion of the council to initiate, concurrently, several different rule–making proceedings on the same subject with several different published Notices of Intended Action.

4.10(1) Omission of notice and comment. To the extent the council for good cause finds that public notice and participation are unnecessary, impracticable, or contrary to the public interest in the process of adopting a particular rule, the council may adopt that rule without publishing advance Notice of Intended Action in the Iowa Administrative Bulletin and without providing for written or oral public submissions prior to its adoption. The council shall incorporate the required finding and a brief statement of its supporting reasons in each rule adopted in reliance upon this subrule.

4.10(2) Categories exempt. The following narrowly tailored categories of rules are exempted from the usual public notice and participation requirements because those requirements are unnecessary, impracticable, or contrary to the public interest with respect to each and every member of the defined class: rules mandated by either state or federal law.

4.10(3) Public proceedings on rules adopted without them. The council may, at any time, commence a standard rule–making proceeding for the adoption of a rule that is identical or similar to a rule it adopts in reliance upon subrule 4.10(1). Upon written petition by a governmental subdivision, the administrative rules review committee, an agency, the administrative rules coordinator, an association having not less than 25 members, or at least 25 persons, the department shall commence a standard rule–making proceeding for any rule specified in the petition that was adopted in reliance upon subrule 4.10(1). Such a petition must be filed within one year of the publication of the specified rule in the Iowa Administrative Bulletin as an adopted rule. The rule–making proceeding on that rule must be commenced within 60days of the receipt of such a petition. After a standard rule–making proceeding commenced pursuant to this subrule, the council may either readopt the rule it adopted without benefit of all usual procedures on the basis of subrule 4.10(1), or may take any other lawful action, including the amendment or repeal of the rule in question, with whatever further proceedings are appropriate.

4.11(1) General. When requested by a person, either prior to the adoption of a rule or within 30 days after its publication in the Iowa Administrative Bulletin as an adopted rule, the council shall issue a concise statement of reasons for the rule. Requests for such a statement must be in writing and be delivered to the Rules Coordinator, Information Technology Department, Level B, Hoover State Office Building, Des Moines, Iowa 50319. The request should indicate whether the statement is sought for all or only a specified part of the rule. Requests will be considered made on the date received.

4.11(2) Contents. The concise statement of reasons shall contain:

a. The reasons for adopting the rule;

b. An indication of any change between the text of the proposed rule contained in the published Notice of Intended Action and the text of the rule as finally adopted, with the reasons for any such change;

c. The principal reasons urged in the rule–making proceeding for and against the rule, and the council’s reasons for overruling the arguments made against the rule.

4.11(3) Time of issuance. After a proper request, the council shall issue a concise statement of reasons by the later of the time the rule is adopted or 35 days after receipt of the request.

4.12(1) Contents. Each rule adopted by the council shall contain the text of the rule and, in addition:

a. The date the council adopted the rule;

b. A brief explanation of the principal reasons for the rule–making action if such reasons are required by Iowa Code section 17A.4(1)“b,” or the council in its discretion decides to include such reasons;

c. A reference to all rules repealed, amended, or suspended by the rule;

d. A reference to the specific statutory or other authority authorizing adopting of the rule;

e. Any findings required by any provision of law as a prerequisite to adoption or effectiveness of the rule;

f. A brief explanation of the principal reasons for the failure to provide for waivers to the rule if no waiver provision is included and a brief explanation of any waiver or special exceptions provided in the rule if such reasons are required by Iowa Code section 17A.4(1)“b,” or the council in its discretion decides to include such reasons; and

g. The effective date of the rule.

4.12(2) Incorporation by reference. The council may incorporate by reference in a proposed or adopted rule, and without causing publication of the incorporated matter in full, all or any part of a code, standard, rule, or other matter if the council finds that the incorporation of its text in the council proposed or adopted rule would be unduly cumbersome, expensive, or otherwise inexpedient. The reference in the council proposed or adopted rule shall fully and precisely identify the incorporated matter by location, title, citation, date, and edition, if any; shall briefly indicate the precise subject and the general contents of the incorporated matter; and shall state that the proposed or adopted rule does not include any later amendments or editions of the incorporated matter. The council may incorporate such matter by reference in a proposed or adopted rule only if the council makes copies of it readily available to the public. The rule shall state how and where copies of the incorporated matter may be obtained at cost from the information technology department, and how and where copies may be obtained from the agency of the United States, this state, another state, or the organization, association, or persons, originally issuing that matter. The council shall retain permanently a copy of any materials incorporated by reference in a rule of the information technology department.

If the council adopts standards by reference to another publication, it shall provide a copy of the publication containing the standards to the administrative rules coordinator for deposit in the state law library and may make the standards available electronically.

4.12(3) References to materials not published in full. When the administrative code editor decides to omit the full text of a proposed or adopted rule because publication of the full text would be unduly cumbersome, expensive, or otherwise inexpedient, the council shall prepare and submit to the administrative code editor for inclusion in the Iowa Administrative Bulletin and Iowa Administrative Code a summary statement describing the specific subject matter of the omitted material. This summary statement shall include the title and a brief description sufficient to inform the public of the specific nature and subject matter of the proposed or adopted rules, and of significant issues involved in these rules. The summary statement shall also describe how a copy of the full text of the proposed or adopted rule, including any unpublished matter and any matter incorporated by reference, may be obtained from the information technology department. The information technology department will provide a copy of that full text (at actual cost) upon request and shall make copies of the full text available for review at the state law library and may make the standards available electronically.

At the request of the administrative code editor, the council shall provide a proposed statement explaining why publication of the full text would be unduly cumbersome, expensive, or otherwise inexpedient.

4.12(4) Style and form. In preparing its rules, the council shall follow the uniform numbering system, form, and style prescribed by the administrative rules coordinator.

4.13(1) Requirement. The department shall maintain an official rule–making record for each rule it proposes or adopts by publication in the Iowa Administrative Bulletin of a Notice of Intended Action. The rule–making record and materials incorporated by reference must be available for public inspection.

4.13(2) Contents. The agency rule–making record shall contain:

a. Copies of all publications in the Iowa Administrative Bulletin with respect to the rule or the proceeding upon which the rule is based and any file–stamped copies of submissions to the administrative rules coordinator concerning that rule or the proceeding upon which it is based;

b. Copies of any portions of the department’s public rule–making docket containing entries relating to the rule or the proceeding upon which the rule is based;

c. All written petitions, requests, and submissions received by the department, and all other written materials of a factual nature and distinguished from opinion that are relevant to the merits of the rule and that were created or compiled by the department and considered by the chief information officer, in connection with the formulation, proposal, or adoption of the rule or the proceeding upon which the rule is based, except to the extent the department is authorized by law to keep them confidential; provided, however, that when any such materials are deleted because they are authorized by law to be kept confidential, the department shall identify in the record the particular materials deleted and state the reasons for that deletion;

d. Any official transcript of oral presentations made in the proceeding upon which the rule is based or, if not transcribed, the stenographic record or electronic recording of those presentations, and any memorandum prepared by a presiding officer summarizing the contents of those presentations;

e. A copy of any regulatory analysis or fiscal impact statement prepared for the proceeding upon which the rule is based;

f. A copy of the rule and any concise statement of reasons prepared for that rule;

g. All petitions for amendment or repeal or suspension of the rule;

h. A copy of any objection to the issuance of that rule without public notice and participation that was filed pursuant to Iowa Code section 17A.4(2) by the administrative rules review committee, the governor, or the attorney general;

i. A copy of any objection to the rule filed by the administrative rules review committee, the governor, or the attorney general pursuant to Iowa Code section 17A.4(4), and any department response to that objection;

j. A copy of any significant written criticism of the rule, including a summary of any petitions for waiver of the rule; and

k. A copy of any executive order concerning the rule.

4.13(3) Effect of record. Except as otherwise required by a provision of law, the department rule–making record required by this rule need not constitute the exclusive basis for department action on that rule.

4.13(4) Maintenance of record. The department shall maintain the rule–making record for a period of not less than five years from the later of the date the rule to which it pertains became effective, the date of the Notice of Intended Action, or the date of any written criticism as described in 4.13(2)“g,” “h,” “i,” or “j.”

471—4.14(17A) Filing of rules. The council shall file each rule it adopts in the office of the administrative rules coordinator. The filing must be executed as soon after adoption of the rule as is practicable. At the time of filing, each rule must have attached to it any fiscal impact statement and any concise statement of reasons that was issued with respect to that rule. If a fiscal impact statement or statement of reasons for that rule was not issued until a time subsequent to the filing of that rule, the note or statement must be attached to the filed rule within five working days after the note or statement is issued. In filing a rule, the council shall use the standard form prescribed by the administrative rules coordinator.

4.15(1) Grounds. The council may make a rule effective after its filing at any stated time prior to 35 days after its indexing and publication in the Iowa Administrative Bulletin if it finds that a statute so provides, the rule confers a benefit or removes a restriction on some segment of the public, or that the effective date of the rule is necessary to avoid imminent peril to the public health, safety, or welfare. The council shall incorporate the required finding and a brief statement of its supporting reasons in each rule adopted in reliance upon this subrule.

4.15(2) Special notice. When the council makes a rule effective prior to its indexing and publication in reliance upon the provisions of Iowa Code section 17A.5(2)“b”(3), the department shall employ all reasonable efforts to make its contents known to the persons who may be affected by that rule prior to the rule’s indexing and publication. The term “all reasonable efforts” requires the department to employ the most effective and prompt means of notice rationally calculated to inform potentially affected parties of the effectiveness of the rule that are justified and practical under the circumstances considering the various alternatives available for this purpose, the comparative costs to the department of utilizing each of those alternatives, and the harm suffered by affected persons from any lack of notice concerning the contents of the rule prior to its indexing and publication. The means that may be used for providing notice of such rules prior to their indexing and publication include, but are not limited to, any one or more of the following means: radio, newspaper, television, signs, mail, telephone, personal notices or electronic means.

A rule made effective prior to its indexing and publication in reliance upon the provisions of Iowa Code section 17A.5(2)“b”(3) shall include in that rule a statement describing the reasonable efforts that will be used to comply with the requirements of subrule 4.15(2).

4.16(1) Compilation, indexing, public inspection. The department shall maintain an official, current, and dated compilation that is indexed by subject, containing all of its general statements of policy within the scope of Iowa Code section 17A.2(11)“a,” “c,” “f,” “g,” “h,” “k.” Each addition to, change in, or deletion from the official compilation must also be dated, indexed, and a record thereof kept. Except for those portions containing rules governed by Iowa Code section 17A.2(11)“f,” or otherwise authorized by law to be kept confidential, the compilation must be made available for public inspection and copying.

4.16(2) Enforcement of requirements. A general statement of policy subject to the requirements of this subsection shall not be relied on by the department to the detriment of any person who does not have actual, timely knowledge of the contents of the statement until the requirements of subrule 4.16(1) are satisfied. This provision is inapplicable to the extent necessary to avoid imminent peril to the public health, safety, or welfare.

4.17(1) Any interested person, association, agency, or political subdivision may submit a written request to the administrative rules coordinator requesting the council to conduct a formal review of a specified rule. Upon approval of that request by the administrative rules coordinator, the council shall conduct a formal review of a specified rule to determine whether a new rule should be adopted instead or whether the rule should be amended or repealed. The council may refuse to conduct a review if it has conducted such a review of the specified rule within five years prior to the filing of the written request.

4.17(2) In conducting the formal review, the council shall prepare within a reasonable time a written report summarizing its findings, its supporting reasons, and any proposed course of action. The report must include a concise statement of the council’s findings regarding the rule’s effectiveness in achieving its objectives, including a summary of any available supporting data. The report shall also concisely describe significant written criticisms of the rule received during the previous five years, including a summary of any petitions for waiver of the rule received by the council or granted by the council. The report shall describe alternative solutions to resolve the criticisms of the rule, the reasons any were rejected, and any changes made in the rule in response to the criticisms as well as the reasons for the changes. A copy of the council’s report shall be sent to the administrative rules review committee and the administrative rules coordinator. The report must also be available for public inspection.

These rules are intended to implement Iowa Code chapter 17A and 2000 Iowa Acts, Senate File 2395.

Pursuant to the authority of 2000 Iowa Acts, Senate File 2395, the Information Technology Department hereby gives Notice of Intended Action to adopt Chapter 5, “Declaratory Orders,” Iowa Administrative Code.

This chapter creates a policy in which any person may file a petition with the Information Technology Department for declaratory orders. The chapter details how such a person is to file the petition and what must be included in the submitted petition. In addition, the chapter specifies what considerations the department must take regarding such submitted petitions.

The chapter creates a policy in which qualified persons shall be allowed to intervene in a proceeding for a declaratory order. The chapter details how such a person is to file the petition and what must be included in the submitted petition.

The chapter allows for either the petitioner or any intervenor to file a brief in support of the position urged, and it allows for inquiries to be made concerning the status of a declaratory order proceeding. The chapter also explains the procedures for the service and filing of petitions and other papers.

The chapter sets forth procedures by which the department is to consider the petitions filed, act on petitions, and refuse declaratory orders. In addition, the chapter explains the policies to be followed by the Department regarding the contents of declaratory orders, copies of orders, and the effects of declaratory orders.

Any interested person may make written or electronic suggestions or comments on the proposed adoption on or before November 7, 2000. Such material should be directed to the Information Technology Department, Level B, Hoover State Office Building, Des Moines, Iowa 50319; fax (515) 281–6137.

Also, there will be a public hearing on November 7, 2000, from 2 to 4 p.m. in the Director’s Conference Room, Information Technology Department, Level B, Hoover State Office Building, at which time persons may present their views either orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of the rules. Persons with special needs may contact the Information Technology Department prior to the hearing if accommodations need to be made.

These rules are intended to implement 2000 Iowa Acts, Senate File 2395, and Iowa Code chapter 17A.

The following new chapter is proposed.

CHAPTER 5
DECLARATORY ORDERS

471—5.1(17A) Petition for declaratory order. Any person may file a petition with the information technology department for a declaratory order as to the applicability to specified circumstances of a statute, rule, or order within the primary jurisdiction of the Information Technology Department, Hoover State Office Building, Level B, Des Moines, Iowa 50319, Attn: Legal Counsel. A petition is deemed filed when it is received by that office. The information technology department shall provide the petitioner with a file–stamped copy of the petition if the petitioner provides the agency an extra copy for this purpose. The petition must be typewritten or legibly handwritten in ink and must substantially conform to the following form:

The petition must provide the following information:

1. A clear and concise statement of all relevant facts on which the order is requested.

2. A citation and the relevant language of the specific statutes, rules, policies, decisions, or orders, whose applicability is questioned, and any other relevant law.

3. The questions petitioner wants answered, stated clearly and concisely.

4. The answers to the questions desired by the petitioner and a summary of the reasons urged by the petitioner in support of those answers.

5. The reasons for requesting the declaratory order and disclosure of the petitioner’s interest in the outcome.

6. A statement indicating whether the petitioner is currently a party to another proceeding involving the questions at issue and whether, to the petitioner’s knowledge, those questions have been decided by, are pending determination by, or are under investigation by, any governmental entity.

7. The names and addresses of other persons, or a description of any class of persons, known by petitioner to be affected by, or interested in, the questions presented in the petition.

8. Any request by petitioner for a meeting provided for by 5.7(17A).

The petition must be dated and signed by the petitioner or the petitioner’s representative. It must also include the name, mailing address, and telephone number of the petitioner and petitioner’s representative and a statement indicating the person to whom communications concerning the petition should be directed.

471—5.2(17A) Notice of petition. Within seven business days after receipt of a petition for a declaratory order, the information technology department shall give notice of the petition to all persons not served by the petitioner pursuant to 5.6(17A) to whom notice is required by any provision of law. The information technology department may also give notice to any other persons deemed appropriate.

5.3(1) Persons who qualify under any applicable provision of law as an intervenor and who file a petition for intervention within 20 working days of the filing of a petition for declaratory order and before the 30–day time for department action under rule 5.8(17A) shall be allowed to intervene in a proceeding for a declaratory order.

5.3(2) Any person who files a petition for intervention at any time prior to the issuance of an order may be allowed to intervene in a proceeding for a declaratory order at the discretion of the information technology department.

5.3(3) A petition for intervention shall be filed with the office of the information technology department. Such a petition is deemed filed when received by the department. The information technology department will provide the petitioner with a file–stamped copy of the petition for intervention if the petitioner provides an extra copy for this purpose. A petition for intervention must be typewritten or legibly handwritten in ink and must substantially conform to the following form:

The petition for intervention must provide the following information:

1. Facts supporting the intervenor’s standing and qualifications for intervention.

2. The answers urged by the intervenor to the question or questions presented and a summary of the reasons urged in support of those answers.

3. Reasons for requesting intervention and disclosure of the intervenor’s interest in the outcome.

4. A statement indicating whether the intervenor is currently a party to any proceeding involving the questions at issue and whether, to the intervenor’s knowledge, those questions have been decided by, are pending determination by, or are under investigation by, any governmental entity.

5. The names and addresses of any additional persons, or a description of any additional class of persons, known by the intervenor to be affected by, or interested in, the questions presented.

6. Whether the intervenor consents to be bound by the determination of the matters presented in the declaratory order proceeding.

The petition must be dated and signed by the intervenor or the intervenor’s representative. It must also include the name, mailing address, and telephone number of the intervenor and intervenor’s representative, and a statement indicating the person to whom communications should be directed.

471—5.4(17A) Briefs. The petitioner or any intervenor may file a brief in support of the position urged. The information technology department may request a brief from the petitioner, any intervenor, or any other person concerning the questions raised.

471—5.5(17A) Inquiries. Inquiries concerning the status of a declaratory order proceeding may be made to the legal counsel for the Information Technology Department, Hoover State Office Building, Level B, Des Moines, Iowa 50319.

5.6(1) When service required. Except where otherwise provided by law, every petition for declaratory order, petition for intervention, brief, or other paper filed in a proceeding for a declaratory order shall be served upon each of the parties of record to the proceeding, and on all other persons identified in the petition for declaratory order or petition for intervention as affected by or interested in the questions presented, simultaneously with their filing. The party filing a document is responsible for service on all parties and other affected or interested persons.

5.6(2) Filing—when required. All petitions for declaratory orders, petitions for intervention, briefs, or other papers in a proceeding for a declaratory order shall be filed with the Director’s Office, Information Technology Department, Hoover State Office Building, Level B, Des Moines, Iowa 50319. All petitions, briefs, or other papers that are required to be served upon a party shall be filed simultaneously with the information technology department.

5.6(3) Method of service, time of filing, and proof of mailing. Method of service, time of filing, and proof of mailing shall be as provided by 471—6.12(17A).

471—5.7(17A) Consideration. Upon request by petitioner, the information technology department shall schedule a brief and informal meeting between the original petitioner, all intervenors, and the information technology department or a member of the information technology department to discuss the questions raised. The information technology department may solicit comments from any person on the questions raised. Also, comments on the questions raised may be submitted to the information technology department by any person.

5.8(1) Within the time allowed by Iowa Code section 17A.9(5), after receipt of a petition for a declaratory order, the chief information officer or designee shall take action on the petition as required by Iowa Code section 17A.9(5).

5.8(2) The date of issuance of an order or of a refusal to issue an order is as defined in 471—6.2(17A).

5.9(1) The information technology department shall not issue a declaratory order where prohibited by Iowa Code section 17A.9(1), and may refuse to issue a declaratory order on some or all questions raised for the following reasons:

1. The petition does not substantially comply with the required form.

2. The petition does not contain facts sufficient to demonstrate that the petitioner will be aggrieved or adversely affected by the failure of the information technology department to issue an order.

3. The information technology department does not have jurisdiction over the questions presented in the petition.

4. The questions presented by the petition are also presented in a current rule making, contested case, or other agency or judicial proceeding, that may definitively resolve them.

5. The questions presented by the petition would more properly be resolved in a different type of proceeding or by another body with jurisdiction over the matter.

6. The facts or questions presented in the petition are unclear, overbroad, insufficient, or otherwise inappropriate as a basis upon which to issue an order.

7. There is no need to issue an order because the questions raised in the petition have been settled due to a change in circumstances.

8. The petition is not based upon facts calculated to aid in the planning of future conduct but is, instead, based solely upon prior conduct in an effort to establish the effect of that conduct or to challenge an agency decision already made.

9. The petition requests a declaratory order that would necessarily determine the legal rights, duties, or responsibilities of other persons who have not joined in the petition, intervened separately, or filed a similar petition and whose position on the question presented may fairly be presumed to be adverse to that of petitioner.

10. The petitioner requests the information technology department to determine whether a statute is unconstitutional on its face.

5.9(2) A refusal to issue a declaratory order must indicate the specific grounds for the refusal and constitutes final agency action on the petition.

5.9(3) Refusal to issue a declaratory order pursuant to this provision does not preclude the filing of a new petition that seeks to eliminate the grounds for the refusal to issue an order.

471—5.10(17A) Contents of declaratory order—effective date. In addition to the order itself, a declaratory order must contain the date of its issuance, the name of petitioner and all intervenors, the specific statutes, rules, policies, decisions, or orders involved, the particular facts upon which it is based, and the reasons for its conclusion.

A declaratory order is effective on the date of the issuance.

471—5.11(17A) Copies of orders. A copy of all orders issued in response to a petition for a declaratory order shall be mailed promptly to the original petitioner and all intervenors.

471—5.12(17A) Effect of a declaratory order. A declaratory order has the same status and binding effect as a final order issued in a contested case proceeding. It is binding on the information technology department, the petitioner, and any intervenors and is applicable only in circumstances where the relevant facts and the law involved are indistinguishable from those on which the order was based. As to all other persons, a declaratory order serves only as precedent and is not binding on the information technology department. The issuance of a declaratory order constitutes final agency action on the petition.

These rules are intended to implement Iowa Code chapter 17A and 2000 Iowa Acts, Senate File 2395.

Pursuant to the authority of Iowa Code section 515F.5, the Insurance Division hereby gives Notice of Intended Action to amend Chapter 20, “Property and Casualty Insurance Rate and Form Filing Procedures,” Iowa Administrative Code.

The proposed rule sets forth requirements for insurers using credit reports or credit scores for underwriting or tier placement, with respect to personal automobile and homeowners insurance, to provide the Insurance Commissioner with the necessary information to ensure that the use of credit reports or credit scores is in accordance with Iowa statutes and regulations.

Any person may make written comments on the proposed rule on or before November 8, 2000. Comments should be directed to Angela Burke Boston, Assistant Commissioner, Iowa Insurance Division, 330 Maple, Des Moines, Iowa 50319. Comments may also be transmitted by E–mail toangela.burke.boston@comm6.state.ia.us or may be transmitted via facsimile to (515)281–3059.

A public hearing will be held at 10 a.m. on November 8, 2000, in the Utilities Division Hearing Room, 330 Maple, Des Moines, Iowa 50319. Persons wishing to provide oral comments should contact Angela Burke Boston no later than November 7, 2000, to be placed on the agenda.

This rule is intended to implement Iowa Code chapters 515 and 515F.

The following rule is proposed.

Adopt the following new rule:

20.12(1) Purpose. The purpose of this rule is to require insurers that use credit reports or credit scores for underwriting or rate–making purposes, with respect to the lines of personal automobile and homeowners insurance, to provide the insurance commissioner with the underlying information needed to ensure that the insurers use the credit reports or credit scores in accordance with Iowa statutes and regulations.

20.12(2) Definitions.

“Credit report” means any written, oral, or other communication of any information by a consumer reporting agency that:

1. Bears on a consumer’s credit worthiness, credit standing, or credit capacity; and

2. Is used or collected or expected to be used or collected wholly or partly to serve as a factor in establishing the consumer’s eligibility or pricing for personal lines of automobile and homeowners insurance.

“Credit score” means a score that is derived by utilizing data from a person’s credit report in an algorithm, computer program, model or other process that reduces the data to a number or rating.

“Insurance” means personal lines of property and casualty insurance.

“Insurers” means property and casualty insurers using credit reports or credit scores for:

1. Underwriting purposes, including declinations and placement with a particular insurer within a group of affiliated insurers; and

2. Tier placement within an insurer or applying surcharges or discounts.

“Tier” means a category within a single insurer into which insureds with similar risk characteristics are placed for purposes of determining a premium rate.

20.12(3) Notice to the consumer of the use of credit history in an insurance transaction.

a. Disclosure. The insurer shall disclose on its insurance application that it may or will gather credit information.

b. Notification. The insurer shall notify the consumer when adverse action is taken following the requirements of the Federal Credit Reporting Act 624(b).

20.12(4) Prohibited uses. The decision to obtain a credit report or credit score must be reasonably related to the insurer’s economic and business purposes. An insurer shall not:

a. Cancel a policy, refuse to renew a policy, or reject an application based solely on information contained in a credit report.

b. Cancel a policy, refuse to renew a policy, or reject an application based on information contained in a credit report that the insurer or qualified agent knows is inaccurate or incomplete.

c. Obtain a credit report or credit score for any arbitrary, capricious, or unfairly discriminatory reason.

d. Use credit criteria or credit scoring based wholly or partly on age, residence, sex, race, color, creed or occupation of an applicant or insured.

20.12(5) Filing information with the commissioner.

a. An insurer shall have specific, written criteria on how credit information affects underwriting and rate making. At the request of the commissioner, an insurer shall file with the commissioner:

(1) The characteristics or factors from a credit report that are used as credit criteria or used in determining a credit score; and

(2) In the case of credit scoring, the algorithm, computer program, model, or other process that is used in determining a credit score, along with the underlying support, including statistical validation, for the development of the algorithm, computer program, model, or other process that is used in determining a credit score; and

(3) Any underwriting guidelines relating to the use of the credit criteria or credit scores, along with all appropriate supporting material for the use of the guidelines.

b. At the request of the commissioner, an interested party such as a scoring modeler shall file or discuss under confidentiality protection, with the commissioner: the algorithm, computer program, model, or other process that is used in determining a credit score, along with the underlying support, including statistical validation, for the development of the algorithm, computer program, model, or other process that is used in determining a credit score. Such documentation or discussion can be referenced by an insurer in the insurer’s filings.

c. Information filed with the commissioner pursuant to paragraphs “a” and “b” of this subrule shall be considered a confidential record and recognized and protected as a trade secret in accordance with Iowa Code section 22.7(3) and Iowa Administrative Code 191—paragraph 1.3(11)“a.”

Pursuant to the authority of Iowa Code section 89A.3, the Labor Commissioner hereby gives Notice of Intended Action to amend Chapter 71, “Administration,” Chapter 72, “New Installations,” Chapter 73, “Existing Facilities,” Chapter 76, “Permits,” and Chapter 77, “Variances,” and to rescind Chapter 74, “Existing Escalators, Moving Walks and Dumbwaiters,” Iowa Administrative Code.

The proposed amendments relate to changing the safety standards reference dates to match updated and current standards; clarifying the subrule relating to safety testing; requiring dormant facilities to meet safety standards of new installations; clarifying procedures and policies tested for special inspector license; disallowing special inspectors to perform initial inspections; adopting rules for the installation oflimited–use/limited application elevators, rack and pinion elevators, inclined elevators, screw columns elevators, and permanent elevators used for construction; rescinding rules relating to new installations of handicapped restricted use elevators and adopting rules for existing handicapped restricted use elevators; requiring all existing facilities to maintain conformance to safety standards applicable when installed; updating standards for maintenance, repair, and alterations; rescinding Chapter 74 relating to existing escalators, moving walks, and dumbwaiters and moving those rules into Chapter 73; reiterating that owners are responsible for payment of fees; restricting temporary permits to those for elevators for construction purposes; clarifying safety standards for existing facilities and modifications of existing facilities; adopting appeal procedure and deadline for variances; and minor clarifying and technical corrections.

If requested no later than October 25, 2000, by 25 interested persons, a governmental subdivision, the Administrative Rules Review Committee, an agency, or an association having not less than 25 members, a public hearing will be held on November 7, 2000, at 1:30 p.m. at 1000 East Grand Avenue, Des Moines, Iowa. Interested persons will be given the opportunity to make oral statements and file documents concerning the proposed amendments. The facility for the oral presentations is accessible to and functional for persons with physical disabilities. Persons who have special requirements should call (515)242–5869 in advance to arrange access or other needed services.

Written data, views, or arguments to be considered in adoption shall be submitted by interested persons no later than November 7, 2000, to Division of Labor Services, 1000 East Grand Avenue, Des Moines, Iowa 50319–0209.

The Division of Labor Services will issue a regulatory analysis as provided by Iowa Code section 17A.4A if a written request is submitted no later than November 20, 2000, to Division of Labor Services, 1000 East Grand Avenue, Des Moines, Iowa 50319. The request may be made by the Administrative Rules Review Committee, the Administrative Rules Coordinator, at least 25 persons who each qualify as a small business, or an organization representing at least 25 small businesses. The organization shall list the names, addresses and telephone numbers of not less than 25 small businesses it represents.

These amendments will not necessitate combined expenditures exceeding $100,000 by all political subdivisions or agencies and entities that contract with political subdivisions to provide services.

These amendments are intended to implement Iowa Code section 89A.3.

The following amendments are proposed.

ITEM 1. Amend rule 875—71.1(89A), introductory paragraph and definition of “working pressure,” as follows:

875—71.1(89A) Definitions. The definitions contained in this rule shall apply to chapters 875—Chapters 72, 73, and 74 75, 76 and 77, except as otherwise expressly provided and used in these chapters.

“Working pressure.” The pressure measured at the cylinder of a hydraulic elevator when lifting the car and its rated load at rated speed, or with class C2 loading when leveling up with maximum static load.

ITEM 2. Amend 71.2(1) as follows:

Amend paragraph “a” as follows:

a. All new registered facilities will shall be inspected before being placed in service.

Rescind the last unnumbered paragraph.

ITEM 3. Amend subrule 71.2(2) as follows:

71.2(2) Safety tests.

c. Safety tests shall be performed by a qualified person who is employed by a recognized elevator company or persons certified by the commissioner for the purpose of performing safety tests on their own facilities. All tests shall be in accordance with ANSI A17.1 1981 ASME A17.1 1999, part X, except for rules 1001.1a, 1001.1c and 1001.6a 1000.1, 1000.1a, 1000.1b, and all of rule 1001. Forms Safety test forms shall be provided in a format approved by the commissioner. The firm or person conducting the tests shall:

a. (1) Submit to the commissioner on approved forms provided a statement certifying the results of conducted tests.

b. (2) On cable elevators, Attach attach to the safety–releasing carrier a tag marked to show the date of the test, and the name of the firm or person conducting the test, and whether it is a five–year or annual test.

(3) On hydraulic elevators, attach to the disconnect or the controller a tag marked to show the date of the test and the name of the firm or person conducting the test.

ITEM 4. Rescind and reserve subrule 71.2(3).

ITEM 5. Amend subrule 71.2(6) as follows:

71.2(6) All dormant facilities shall be inspected and meet requirements of 875—Chapter 72 before being placed in service,. The inspection shall and conform to ANSI ASME A17.1, 1981, rule 1001.8 1000.3.

ITEM 6. Amend subrule 71.2(7) as follows:

71.2(7) The commissioner shall assign identification numbers to all facilities which shall be on a metal tag permanently attached to the controller or electrical disconnect in the machine room.

ITEM 7. Amend subrule 71.5(2), unnumbered paragraph, as follows:

Proof of passage will be satisfied by submission of the examination card by any one of the above organizations. Additionally, each applicant shall satisfactorily pass a division of labor services examination on Iowa procedures and policies including Iowa Code chapter 89A, 875—Chapters 71 to 77, and the ASME A17.1 codes.

ITEM 8. Amend subrule 71.5(5) as follows:

71.5(5) Permitted inspections. While a special inspector may conduct various types of inspections, the commissioner will shall only accept special inspector reports for initial inspections, annual inspections and recheck inspections. The commissioner will shall not accept special inspector reports for initial inspections, acceptance inspections or accident investigation reports.

ITEM 9. Amend rule 875—72.1(89A) as follows:

875—72.1(89A) Purpose and scope. This chapter contains rules of safety standards covering the design, construction, installation, operation, inspection, testing, maintenance, alteration and repair of facilities.

72.1(1) As used in this chapter, ANSI A17.1 and ANSI C1 shall mean ANSI A17.1 (1971) and ANSI C1–1975 for all facilities installed from January 1, 1975, through December 31, 1982, and ANSI A17.1 (1981) and ANSI C1–1981 for all facilities installed from January 1, 1983, through December 31, 1992, and ANSI ASME A17.1 (1990) and ANSI/NFPA 70 (1990) for all facilities installed after January 1, 1993.

72.1(5) Any installation which is in compliance with the latest supplements to ANSI ASME A17.1 shall be considered to be in compliance with this chapter. As used in this rule, the word “installed” refers to the date of written contractual agreement to install a facility.

ITEM 10. Amend rule 875—72.2(89A) as follows:

875—72.2(89A) Definitions. The definitions and interpretations contained in section 3 of the introduction and subsequent interpretations of the American National Standard Safety Code for Elevators, Dumbwaiters, Escalators and Moving Walks, ANSI A17.1 ASME A17.1 and ANSI/NFPA 70, article 100, shall be applicable as used in this chapter to the extent that they do not conflict with the definitions contained in Iowa Code chapter 89A.

ITEM 11. Amend rule 875—72.3(89A) as follows:

875—72.3(89A) Hoistways, hoistway enclosures and related construction for electric elevators. The provisions contained in American National Standard Safety Code for Elevators, Dumbwaiters, Escalators and Moving Walks, ANSI ASME A17.1, part I, sections 100–112, are adopted by reference. When ANSI C1 (NFPA 70) is used in part 11 it shall be changed to the ANSI C1 (NFPA 70) required by rule 875— 72.1(89A).

ITEM 12. Amend rule 875—72.4(89A) as follows:

875—72.4(89A) Machinery and equipment for electric elevators. The provisions contained in American National Standard Safety Code for Elevators, Dumbwaiters, Escalators and Moving Walks, ANSI ASME A17.1, part II, sections 200–212, are adopted by reference. When ANSI C1 (NFPA 70) is used in part II it shall be changed to the ANSI C1 (NFPA 70) required by rule 875—72.1(89A).

ITEM 13. Amend rule 875—72.5(89A) as follows:

875—72.5(89A) Hydraulic elevators. The provisions contained in American National Standard Safety Code for Elevators, Dumbwaiters, Escalators and Moving Walks, ANSI ASME A17.1, part III, sections 300–307, are adopted by reference. On hydraulic elevator installations, a scavenger pump or other acceptable means shall be provided, designed to carry excess oil from the cylinder packing gland back to the oil storage tank of the elevator. When ANSI C1 (NFPA 70) is used in part III it shall be changed to the ANSI C1 (NFPA 70) required by rule 875—72.1(89A).

ITEM 14. Amend rule 875—72.6(89A) as follows:

875—72.6(89A) Power sidewalk elevators. The provisions contained in American National Standard Safety Code for Elevators, Dumbwaiters, Escalators and Moving Walks, ANSI ASME A17.1, part IV, sections 400–402, are adopted by reference. When ANSI C1 (NFPA 70) is used in part IV it shall be changed to the ANSI C1 (NFPA 70) required by rule 875—72.1(89A).

ITEM 15. Rescind and reserve rule 875—72.7(89A).

ITEM 16. Amend rule 875—72.8(89A) as follows:

875—72.8(89A) Hand and power dumbwaiters. The provisions contained in American National Standard Safety Code for Elevators, Dumbwaiters, Escalators and Moving Walks, ANSI ASME A17.1, part VII, sections 700–709, are adopted by reference. When ANSI C1 (NFPA 70) is used in part VII it shall be changed to the ANSI C1 (NFPA 70) required by rule 875—72.1(89A).

ITEM 17. Amend rule 875—72.9(89A) as follows:

875—72.9(89A) Elevators. Escalators. The provisions contained in American National Standard Safety Code for Elevators, Dumbwaiters, Escalators and Moving Walks, ANSI ASME A17.1, part VIII, sections 800–806, are adopted by reference. When ANSI C1 (NFPA 70) is used in part VIII it shall be changed to the ANSI C1 (NFPA 70) required by rule 875—72.1(89A).

ITEM 18. Amend rule 875—72.10(89A) as follows:

875—72.10(89A) Moving walks. The provisions contained in American National Standard Safety Code for Elevators, Dumbwaiters, Escalators and Moving Walks, ANSI ASME A17.1, part IX, sections 900–903, are adopted by reference. When ANSI C1 (NFPA 70) is used in part IX it shall be changed to the ANSI C1 (NFPA 70) required by rule 875— 72.1(89A).

ITEM 19. Amend rule 875—72.11(89A) as follows:

875—72.11(89A) Acceptance and periodic tests and inspections of elevators, dumbwaiters, escalators and moving walks. The provisions contained in the American National Standard Safety Code for Elevators, Dumbwaiters, Escalators and Moving Walks, ANSI ASME A17.1, part X, sections 1000–1002 except rules 1000.1, 1000.1a, 1000.1b, and all of rule 1001, are adopted by reference.

ITEM 20. Amend rule 875—72.12(89A) as follows:

875—72.12(89A) Engineering and type tests. The provisions contained in American National Standard Safety Code for Elevators, Dumbwaiters, Escalators and Moving Walks, ANSI ASME A17.1, part XI, sections 1100–1103, are adopted by reference.

ITEM 21. Amend rule 875—72.13(89A) as follows:

875—72.13(89A) Alterations, repairs, and replacements and maintenance. The provisions contained in American National Standard Safety Code for Elevators, Dumbwaiters, Escalators and Moving Walks, ANSI ASME A17.1, part XII, sections 1200–1202, thereto are adopted by reference.

ITEM 22. Amend rule 875—72.14(89A) as follows:

875—72.14(89A) Design data and formulas. The provisions contained in American National Standard Safety Code for Elevators, Dumbwaiters, Escalators and Moving Walks, ANSI ASME A17.1, part XIII, sections 1300–1308, are adopted by reference.

ITEM 23. Amend rule 875—72.15(89A) as follows:

875—72.15(89A) Power–operated special purpose elevators. The provisions contained in American National Standard Safety Code for Elevators, Dumbwaiters, Escalators and Moving Walks, ANSI ASME A17.1, (1981), part XV, sections 1500–1502, are adopted by reference for all power–operated special purpose elevators installed after January 1, 1983.

ITEM 24. Amend rule 875—72.16(89A) as follows:

875—72.16(89A) Inclined and vertical wheelchair lifts. The provisions contained in American National Standard Safety Code for Inclined Stairway Chair Lifts and Inclined and Vertical Wheelchair Lifts, ANSI A17.1 (1990), part XX, sections 2000 and 2001 and ANSI/NFPA 70 (1990), ASME Safety Standard for Platform Lifts and Stairway Chairlifts A18.1, sections 1, 2, 3, 8, 9, and 10, are adopted by reference for all inclined and vertical wheelchair lifts installed after January 1, 1993.

ITEM 25. Amend rule 875—72.17(89A) as follows:

875—72.17(89A) Hand–powered special purpose elevators. Hand–powered special purpose elevators shall not be installed after January 1, 1983.

ITEM 26. Amend rule 875—72.18(89A) as follows:

875—72.18(89A) Handicapped applications Accommodating the physically disabled. All passenger elevators installed between January 1, 1975, and December 31, 1982, which are available and intended for public use shall be usable by the physically handicapped disabled. All passenger elevators shall have control buttons with identifying features for the benefit of the blind and shall allow for wheelchair traffic. All passenger elevators installed on or after January 1, 1983, which are accessible to the general public shall comply with Accessible and Usable Buildings and Facilities ANSI A117.1.–1980, section sections 4.10.1–4.10.14.

ITEM 27. Rescind rule 875—72.19(89A).

ITEM 28. Amend 875—Chapter 72 by adopting the following new rules:

875—72.19(89A) Limited–use/limited application elevators. The provisions contained in ASME A17.1, part XXV, are adopted by reference.

875—72.20(89A) Rack and pinion elevators. The provisions contained in ASME A17.1, part XVI, are adopted by reference.

875—72.21(89A) Inclined elevators. The provisions contained in ASME A17.1, part XVII, are adopted by reference.

875—72.22(89A) Screw columns elevators. The provisions contained in ASME A17.1, part XVIII, are adopted by reference.

875—72.23(89A) Elevators used for construction. The provisions contained in ASME A17.1, part XIX, are adopted by reference only as they pertain to elevators utilizing permanent equipment in a permanent location.

ITEM 29. Amend rule 875—73.1(89A) as follows:

875—73.1(89A) Purpose and scope. This chapter establishes minimum safety standards for all existing elevators, dumbwaiters, escalators, moving walks and inclined and vertical wheelchair lifts (facilities not covered by 875—Chapter 72). This chapter shall apply to all facilities unless specifically stated otherwise.

73.1(2) Any facility which is in compliance with the latest applicable supplements to ANSI ASME A17.1, ASME A18.1, ANSI A117.1 or 875—Chapter 72 shall be considered to be in compliance with this chapter.

ITEM 30. Amend subrule 73.2(10) as follows:

73.2(10) Emergency keys for hoistway doors and service keys shall be kept readily accessible to authorized persons and elevator safety inspectors.

ITEM 31. Amend subrule 73.3(3) as follows:

73.3(3) Passenger car enclosure tops shall have an emergency exit with cover. Opening size shall be as set forth in ANSI A17.1, 1971, rule 204.IE, or later editions of the ASME A17.1 code. EXCEPTION: Hydraulic elevators provided with a manual lowering valve.

ITEM 32. Amend subrule 73.3(4) as follows:

73.3(4) Each passenger car shall have a door or gate at each entrance. Doors or gates shall be of the horizontally sliding type. Doors shall be of solid construction. Gates shall be of the collapsible type. Gates and doors shall conform to ANSI A17.1, 1971, rule 204.4, or later editions of the ASME A17.1 code.

ITEM 33. Amend subrule 73.4(2) as follows:

73.4(2) Each freight car enclosure shall have doors or gates at each entrance and shall be not less than 6 feet high. Each door or gate shall be constructed in accordance with ANSI A17.1, 1971, rule 204.4, or later editions of the ASME A17.1 code.

ITEM 34. Amend rule 875—73.8(89A) as follows:

73.8(1) All maintenance, repair, and alterations shall comply with ANSI A17.1, 1971, section 1002 ASME A17.1 1999 code, part XII.

73.8(2) All maintenance, repairs and alterations to devices covered by ANSI A117.1 shall comply with ANSI A17.1, 1971, section 12 A117.1 (1998).

ITEM 35. Amend subrule 73.9(7) as follows:

73.9(7) All electrical equipment in the machine room shall be grounded which and shall conform to ANSI C1–1975 (NFPA 70–1975), or later editions of the NFPA 70 code.

ITEM 36. Amend subrule 73.10(4) as follows:

73.10(4) Buffers shall be installed where elevator pits are not provided with buffers and where the pit depth will permit. Buffers shall comply with ANSI A17.1, 1971, section 201, or later editions of the ASME A17.1 code.

ITEM 37. Amend subrule 73.13(2) as follows:

73.13(2) Wire ropes on drum–type machines shall be resocketed in compliance with ANSI A17.1, 1971, rule 1002.3 ASME A17.1, 1999, code.

ITEM 38. Amend subrule 73.13(12) as follows:

73.13(12) Rope (cable) replacement. Hoisting, governor and tiller ropes shall be replaced when the American National Standards Practice for the Inspection of Elevators, Escalators and Moving Walks, Section A17.2–1979, Division 103, Item 103.4 ASME Inspection Manual for Electric Elevators A17.2.1 (1993), adopted here by reference, or later editions of the ASME A17.2.1 code, dictates they shall be changed.

ITEM 39. Amend subrule 73.14(4) as follows:

73.14(4) All safeties shall be adjusted so that clearances from the rail shall be in accordance with ANSI A17.1, 1971, rule 1001.2, or later editions of the ASME A17.1 code.

ITEM 40. Amend rule 875—73.15(89A) as follows:

73.15(1) All guide rails and brackets whether of wood or steel shall be firmly and securely anchored or bolted in place. Where T rail is used all fish–plate bolts shall be tight. This shall comply with ANSI A17.1, 1981, section 200, or later editions of the ASME A17.1 code.

73.15(2) Where guide rails which are worn to such a point that proper clearance of safety jaws cannot be maintained, the worn sections shall be replaced to achieve clearances as specified in ANSI A17.1, 1971, rule 1001.2, or later editions of the ASME A17.1 code.

ITEM 41. Rescind subrule 73.16(5).

ITEM 42. Amend subrules 73.17(1) and 73.17(8) as follows:

73.17(1) Hoistways shall be permanently enclosed. The enclosures shall conform to ANSI A17.1, 1971, rule 401.1, or later editions of the ASME A17.1 code.

73.17(8) Operating devices and control equipment shall comply with ANSI A17.1, 1971, rule 402.4, or later editions of the ASME A17.1 code.

ITEM 43. Rescind subrule 73.17(13).

ITEM 44. Rescind subrule 73.18(7).

ITEM 45. Amend subrules 73.19(4) to 73.19(7) and 73.19(10) to 73.19(13) as follows:

73.19(4) Wiring shall comply with the requirements of the National Electrical Code, ANSI C1–1975 (NFPA 70–1975) or newer NFPA 70 codes.

73.19(5) Counterweights shall comply with rule 875— 73.11(89A), or later editions of the ASME A17.1 code.

73.19(6) Hoistway doors shall comply with subrules 73.2(1), 73.2(7) and 73.2(11), or later editions of the ASME A17.1 code.

73.19(7) Cars shall be solidly constructed in accordance with subrules 73.12(1) and 73.12(2), or later editions of the ASME A17.1 code.

73.19(10) Guiderails Guide rails shall comply with rule 875—73.15(89A), or later editions of the ASME A17.1 code.

73.19(11) The means and methods of suspension shall comply with subrules 73.13(1), 73.13(2), 73.13(3), 73.13(7), 73.13(8), 73.13(9), 73.13(10), 73.13(11), 73.13(12) and 73.13(13), or later editions of the ASME A17.1 code.

73.19(12) Electrical switches shall comply with subrules 73.7(2) and 73.7(9), or later editions of NFPA 70.

73.19(13) Brakes shall comply with rule 875— 73.5(89A), or later editions of the ASME A17.1 code.

ITEM 46. Amend rule 875—73.20(89A) as follows:

875—73.20(89A) Inclined and vertical wheelchair lifts. All vertical and inclined wheelchair lifts shall conform to ANSI A17.1 (1983) (1981), part XX, sections 2000 and 2001.

ITEM 47. Amend 875—Chapter 73 by adopting the following new rule:

875—73.21(89A) Handicapped restricted use elevators. All handicapped restricted use elevators must meet ANSI A17.1 (1981), part V, or later editions of the ASME code. Permits will be reissued only for locations where other elevators do not exist and where the absence of the elevator would deprive a known group of physically disabled individuals use of the building. Additionally, the elevators shall comply with the following limitations:

1. The elevator shall be used only by a maximum of one disabled person and one attendant at a time. Where a disabled individual cannot operate the elevator in a manner which will ensure access to all operating controls and safety features, an attendant shall accompany the disabled individual.

2. The elevator shall be key–operated and shall not be capable of being called by buttons or switches but may be called by a key operator.

3. Keys to operate the elevator shall be in the control of the disabled person, the attendant or persons in positions of responsibility at the location.

4. A list shall be maintained at the location indicating the persons holding keys for the operation of the elevator.

5. Each landing and the elevator car shall be posted to indicate that the elevator is only for the use of disabled persons.

6. The travel distance of the elevator shall not exceed 50 feet.

ITEM 48. Renumber rule 875—74.1(89A) as 875— 73.22(89A).

ITEM 49. Renumber rule 875—74.2(89A) as 875— 73.23(89A).

ITEM 50. Rescind renumbered subrule 73.23(12).

ITEM 51. Renumber rule 875—74.3(89A) as 875— 73.24(89A) and reserve 875—Chapter 74.

ITEM 52. Amend rule 875—76.1(89A) as follows:

875—76.1(89A) Owner’s responsibility. The procuring of new installation, major alteration permits, and operating permits, and the payment of all fees shall be the responsibility of the owner. No installation or alteration shall begin until approved and the permit has been issued.

ITEM 53. Amend rule 875—76.6(89A) as follows:

76.6(1) The commissioner may permit the temporary use of any facility elevator for passenger or freight service during installation, alteration or during the construction period, only for materials and those persons performing construction work on the elevator or building being constructed, by issuing a temporary construction permit for each class of service upon the application of the owner. Elevators used for construction shall not be accessible to the general public unless the elevators comply with ASME A17.1, parts I, II, and III, and are issued an operating permit.

76.6(2) In the case of elevators, such Such temporary construction permits shall not be issued until the elevator has been tested under rated load, and the car safety and terminal stopping equipment have been tested, in order to determine the safety of the equipment for construction purposes, and until permanent or temporary guards or enclosures are placed on the car and around the hoistway at the landing entrance on each floor.

76.6(3) Landing entrance guards shall be provided with locks which can be released from the hoistway side only.

76.6(4) Automatic or continuous pressure elevators shall not be placed in temporary operation from the landing push buttons unless door–locking devices or interlocks required by ANSI A17.1, 1981, ASME A17.1 are installed and operative.

76.6(5) Where a temporary construction permit is issued, a notice bearing the information that the equipment has not been finally approved shall be conspicuously posted on, near, or visible from each entrance to such elevator, dumbwaiter, escalator or moving walk.

76.6(6) Such permits shall be issued for a period of 90 days and may be extended upon application to the commissioner.

ITEM 54. Amend rule 875—76.7(89A) as follows:

875—76.7(89A) Alterations. When any combination of alterations or changes is made constituting more than 50 percent of the elevator or hoistway construction as determined by the commissioner, the entire facility shall be brought into compliance with ANSI A17.1, 1981, ASME A17.1 (1999) and shall be deemed a new facility.

ITEM 55. Amend 875—Chapter 77 by adopting the following new rule:

875—77.7(89A) Appeals. Appeal from a decision granting or denying a variance shall be in accordance with the procedures provided in Iowa Code chapter 17A. An appeal shall be taken within 30 days of the ruling of the labor commissioner.

Pursuant to the authority of Iowa Code sections 147.76, 148.13, 148E.7 and 272C.3, the Board of Medical Examiners hereby gives Notice of Intended Action to amend Chapter 1, “Public Records and Fair Information Practices”; Chapter 2, “Impaired Physician Review Committee”; Chapter 10, “Medical Examiners—Administrative Regulatory Authority”; and Chapter 14, “Licensure of Acupuncturists,” Iowa Administrative Code.

The Board approved these amendments to Chapters 1, 2, 10, and 14 during its regularly held meeting on September 21, 2000. The proposed amendments renumber current Chapter 1, “Public Records and Fair Information Practices,” as Chapter 2; current Chapter 2, “Impaired Physician Review Committee,” as Chapter 14; current Chapter 10, “Medical Examiners—Administrative Regulatory Authority,” as Chapter 1, “Administrative and Regulatory Authority”; and current Chapter 14, “Licensure of Acupuncturists,” as Chapter 17.

Amendments to proposed Chapter 1 include the following:

• The title is changed to reflect the content of the chapter.

• The chapter shows compliance with more current laws, e.g., statutes that address student loan default, default on child support payment, acupuncture practice, and the sale of goods and services by board members and members of the Impaired Physician Review Committee.

• Registered peer review now includes a peer review consultant as well as a peer review committee.

• Unnecessary repetition of the law is eliminated.

• Committee work is described in terms of committees’ current duties.

• Robert’s Rules of Order, Revised, does not govern the Board’s proceedings and is no longer recognized for doing so.

• The Board’s address is updated.

• References are updated.

• The chairperson, rather than the Board, may appoint a presiding officer at public hearings.

Any interested person may present written comments on these proposed amendments not later than 4 p.m. on November 8, 2000. Such written materials should be sent to Ann E. Mowery, Executive Director, Board of Medical Examiners, 400 S.W. 8th Street, Suite C, Des Moines, Iowa 50309–4686.

There will be a public hearing on November 8, 2000, at2 p.m. in the Board office, at which time persons may present their views either orally or in writing. The Board of Medical Examiners office is located at 400 S.W. 8th Street, Suite C, Des Moines, Iowa.

These amendments are intended to implement Iowa Code sections 147.76, 148.13, 148E.7 and 272C.3.

The following amendments are proposed.

ITEM 1. Renumber 653—Chapter 1 as 653—Chapter 2; 653—Chapter 2 as 653—Chapter 14; and 653— Chapter 14 as 653—Chapter 17.

ITEM 2. Amend and renumber 653—Chapter 10 as follows:

CHAPTER 10 1
MEDICAL EXAMINERS—
ADMINISTRATIVE AND REGULATORY AUTHORITY

653—10.1 1.1(17A,147) Definitions. The following definitions shall be applicable to the rules of the Iowa state board of medical examiners:

“Board” shall mean the board of medical examiners of the state of Iowa.

“Department” shall mean the Iowa department of public health.

“Director” shall mean the director of public health the department.

“Disciplinary proceeding” shall mean any proceeding under the authority of the board pursuant to which licensee discipline may be imposed.

“License” shall mean a certificate issued to a person licensed to practice medicine and surgery, osteopathic medicine and surgery or osteopathy or certified as a paramedic or advanced emergency medical technician acupuncture under the laws of the state of Iowa.

“Licensee” shall mean a person licensed to practice medicine and surgery, osteopathic medicine and surgery or osteopathy, or acupuncture under the laws of the state of Iowa.

“Licensee discipline” or “discipline” shall mean any sanction the board may impose upon its licensees for conduct which threatens or denies citizens of this state a high standard of professional care.

“Malpractice” shall mean any error or omission, unreasonable lack of skill, or failure to maintain a reasonable standard of care by a physician in the practice of the physician’s profession.

“Medical practice Acts” shall refer to Iowa Code chapters 147, 148, 150 and 150A.

“Order” shall mean a requirement, procedure or standard of specific or limited application adopted by the board relating to any matter the board is authorized to act upon, including the professional conduct of licensees and the examination for licensure and licensure of any person under the laws of this state.

“Peer review” shall mean evaluation of professional services rendered by a professional practitioner.

“Peer review committee reviewer(s)” shall mean one or more persons acting in a peer review capacity who have been appointed by the board for such purpose.

“Physician” shall mean a person licensed to practice medicine and surgery, osteopathic medicine and surgery or osteopathy under the laws of this state.

“Practice of acupuncture” means the insertion of acupuncture needles and the application of moxibustion to specific areas of the human body based upon oriental medical diagnosis as a primary mode of therapy. Adjunctive therapies within the scope of acupuncture may include manual, mechanical, thermal, electrical, and electromagnetic treatment, and the recommendation of dietary guidelines and therapeutic exercise based on traditional oriental medical concepts.

“The practice of medicine and surgery” shall mean holding one’s self out as being able to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical or mental condition and who shall either offer or undertake, by any means or methods, to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical or mental condition. This rule shall not apply to licensed podiatrists, chiropractors, physical therapists, nurses, dentists, optometrists, acupuncturists, and pharmacists, and other licensed health professionals who are exclusively engaged in the practice of their respective professions.

“Prescription drugs” means drugs, medicine and controlled substances which by law can only be prescribed for human use by persons authorized by law.

“Profession” shall mean medicine and surgery, osteopathic medicine and surgery or osteopathy, or acupuncture.

“Respondent” shall mean a licensee charged by the board in a complaint and statement of charges with violations of statutes or rules relating to the practice of medicine and surgery, osteopathic medicine and surgery or osteopathy, paramedics or advanced emergency medical technicians or acupuncture.

“Rule” shall mean a regulation, requirement, procedure, or standard of general application prescribed by the board relating to either the administration or enforcement of Iowa Code chapters 147, 147A, 148, 148C, 148E, 150 and 150A.

653—10.2 1.2(17A) Description Purpose of board. The purpose of the board of medical examiners is to administer and enforce the provisions of Iowa Code chapters 68B, 147, 148, 148E, 150, and 150A, 252J, 261 and 272C with regard to the practice of medicine and surgery, osteopathic medicine and surgery, osteopathy, and acupuncture, including, but not limited to, the examination of applicants; determining the eligibility of applicants for licensure by examination or endorsement; the granting of permanent, temporary, resident or special licenses to physicians; determining the ineligibility of physicians to provide supervision to physician assistants; the registration of nonphysician acupuncturists; the investigation of violations or alleged violations of statutes and rules relating to the practice of medicine and surgery, osteopathic medicine and surgery, osteopathy, and acupuncture, and the standard of care provided by advanced emergency medical care providers; and the imposition of discipline upon licensees and registrants as provided by statute or rule.

653—10.3 1.3(17A) Organization of board. The board is comprised of a total of ten members. Five members are persons licensed to practice medicine and surgery; two are persons licensed to practice osteopathic medicine and surgery; and three from the general public, who are not licensed to practice medicine and surgery or osteopathic medicine and surgery. All board members are appointed by the governor and confirmed by the Iowa senate. A board member’s term of office is three years and a member may not serve more than three terms or nine years. The board:

10.3(1) 1.3(1) Makes policy relative to matters involving medical and acupuncture education, licensure, practice, and discipline.

10.3(2) 1.3(2) Conducts business according to established board–approved policy as approved by the members.

10.3(3) 1.3(3) Organizes annually and elects Elects a chairperson, vice–chairperson and a secretary from its membership at the last regular board meeting prior to May 1.

10.3(4) 1.3(4) Governs its proceedings by Robert’s Rules of Order, Revised. A majority of the members of the board shall constitute a quorum. Official action requires a majority vote of members present.

10.3(5) 1.3(5) Has the authority to:

a. Administer the statutes and rules relating to the practice of medicine and surgery, osteopathic medicine and surgery, osteopathy, and the practice of acupuncture by registrants acupuncturists.

b. Review or investigate, upon receipt of a complaint or upon its own initiation, based upon information or evidence received, alleged violations of statutes or rules which relate to the practice of medicine and surgery, osteopathic medicine and surgery, osteopathy, and the practice of acupuncture by registrants licensed acupuncturists.

c. Determine in any case whether an investigation or a disciplinary action is warranted.

d. Initiate and prosecute disciplinary proceedings.

e. Impose licensee discipline.

f. Request that the attorney general file appropriate court action for enforcement of the board’s authority relating to licensees or other persons who are charged with violating statutes or rules the board administers or enforces.

g. Establish and register peer review committees reviewers.

h. Refer to a one or more registered peer review committee reviewers for investigation, review, and report to the board any complaint or other evidence of an act or omission which the board has reasonable grounds to believe may constitute cause for licensee discipline. However, the referral of any matter shall not relieve the board of any of its duties and shall not divest the board of any authority or jurisdiction.

i. Determine and administer the renewal of licenses.

j. Establish and administer rules for continuing education requirements as a condition of license renewal.

k. Establish fees for examination, fees for the issuance of licenses and fees for other services provided by the board.

l. Establish committees of the board, the members of which, except for the executive committee, shall be appointed by the board chairperson and shall not constitute a quorum of the board. The board chairperson shall appoint committee chairpersons. Committees of the board may include, but not be limited to:

(1) Executive committee. The membership shall be composed of the elected officers of the board and an at–large member appointed by the chairperson. Its duties may include, but are not limited to:

• Guidance and supervision of the executive director.

• Budgetary review and recommendations to the board.

• Review and recommendations to the board on rules and legislative proposals.

(2) Disciplinary committee committees. The membership shall be composed of board members appointed by the chairperson. Its Their duties may include, but not be limited to:

• Consider Considering complaints in which preliminary investigation has shown further review or investigation is needed.

• Conduct Conducting interviews as needed with licensees under investigation or who are on disciplinary or consent agreement probation with licensees with restricted licenses, except for final appearances.

• Refer Referring matters requiring peer review to the appropriate a peer review consultant or committee.

• Recommend Reviewing cases and recommending appropriate action to the board for appropriate action.

(3) Intake and screening committee. The membership shall be composed of board members appointed by the chairperson. Its duties may include, but are not limited to:

(4) License and examination committee. The membership shall be composed of board members appointed by the chairperson. Its duties may include, but are not limited to:

• The recommendation for Recommending appropriate action on completed applications for licensure.

• Conduct Conducting interviews with applicants when appropriate.

• Review Reviewing licensure examination matters.

• To review and recommend Reviewing and recommending to the board appropriate changes in licensure application forms.

(6 5) Allied health and monitoring committee. The committee oversees all matters relating to the allied health professions under the board’s jurisdiction and to the monitoring of physicians with board orders. The committee’s responsibilities include but are not limited to:

• Serve Serving as a liaison between the board and the board of physician assistant examiners where appropriate.

• Review Reviewing and make making recommendations to the full board on all matters relating to the registration of acupuncturists.

10.3(6) 1.3(6) Appoints a full–time executive director, who:

a. Is not a member of the board.

b. Under the guidance or direction of the board performs administrative duties of the board including, but not limited to: staff supervision and delegation; the administration and enforcement of the statutes and rules relating to the practice of medicine and surgery, osteopathic medicine and surgery, osteopathy, and registered acupuncturists and the practice of acupuncture; issuance of subpoenas on behalf of the board or a committee of the board during the investigation of possible violations; enunciate enunciation of policy on behalf of the board; and in addition, performs all other duties as provided by statute or rule or as delegated by the board.

653—10.4 1.4(17A) Official communications. All official communications, including submissions and requests, should be addressed to the Executive Director, Iowa State Board of Medical Examiners, Executive Hills West, Capitol Complex 400 S.W. 8th Street, Suite C, Des Moines, Iowa 50319–0180 50309–4686.

653—10.5 1.5(17A) Office hours. The office of the board is open for public business from 8 a.m. to 4:30 p.m., Monday to Friday of each week, except holidays.

653—10.6 1.6(17A) Meetings and examinations. The board shall meet at least six times per year. Dates and location of board meetings may be obtained from the board’s office.

Except as otherwise provided by statute, all board meetings shall be open and the public shall be permitted to attend the meetings.

10.8(1) 1.7(1) An interested person or other legal entity may petition the board requesting the promulgation, amendment or repeal of a rule.

10.8(2) 1.7(2) The petition shall be in writing, signed by or on behalf of the petitioner and contain a detailed statement of:

a. The rule that the petitioner is requesting the board to promulgate, amend or repeal. Where amendment of an existing rule is sought, the rule shall be set forth in full with the matter proposed to be deleted therefrom enclosed in brackets and proposed additions thereto shown by underlining or boldface. The petitioner shall indicate deletions to the current rule with brackets and additions to the current rule with underlining.

b. Facts in sufficient detail to show the reasons for the proposed action.

c. All propositions of law to be asserted by petitioner.

10.8(3) 1.7(3) The petition shall be in typewritten or printed form, captioned BEFORE THE IOWA STATE BOARD OF MEDICAL EXAMINERS and shall be deemed filed when received by the executive director.

10.8(4) 1.7(4) Upon receipt of the petition the executive director shall:

a. Within ten days mail a copy of the petition to any parties named therein. Mail within ten days a copy of the petition to any parties named in it. Such The petition shall be deemed served on the date of mailing to the last–known address of the party being served.

b. Shall advise Advise petitioner that petitioner has 30 days within which to submit written views.

c. May schedule Schedule oral presentation of petitioner’s view if the board so directs.

d. Shall, within Within 60 days after date of submission of the petition, either deny the petition or initiate rule–making proceedings in accordance with Iowa Code chapter 17A.

10.8(5) 1.7(5) In the case of a denial of a petition to promulgate, amend or repeal a rule, the board or its executive director shall issue an order setting forth the reasons in detail for denial of the petition. The order shall be mailed to the petitioner and all other persons upon whom a copy of the petition was served.

653—10.9 1.8(17A) Public hearings prior to the adoption, amendment or repeal of any rule. Prior to adoption, amendment or repeal of any rule, the board shall give notice of intended action by causing said notice to be published in the Iowa Administrative Code. Written comments relating to the proposed action by the board may be submitted to the board at its official address no later than 20 days after the notice has been published. The administrative rules review committee may, under the provisions of Iowa Code section 17A.8(6), on its own motion or on written request by any individual or group, review this proposed action at a regular or special meeting where the public or interested persons may be heard. A public hearing shall be scheduled prior to the adoption, amendment or repeal of any rule(s) provided the request for hearing is in writing, received no later than 20 days after the notice has been published and the request for hearing is made by: 25 interested persons, a governmental subdivision, an agency, an association of 25 persons, or upon the discretion of the board.

1.8(1) Scheduling a public hearing. The board may at its discretion hold a public hearing, or it shall hold a public hearing upon the written request of at least 25 interested persons, a governmental subdivision, an agency, or an association of 25 persons.

10.9(1) 1.8(2) Proceedings at the public hearing. The chairperson of the board or a presiding officer appointed by the board shall preside over the public hearing shall serve as the presiding officer or appoint a presiding officer over the public hearing.

b a. Any individual(s) may present either written or oral comments pertinent to the rule(s) for which the public hearing has been scheduled.

(1) Any individual(s) desiring to make written comments in advance of the hearing shall submit these comments to the presiding officer executive director prior to the hearing date. The presiding officer shall accept written comment at the hearing.

(2) Any individual(s) desiring to make an oral presentation shall be present at the hearing and ask to speak submit a written request to the board prior to the hearing date.

c b. The authority of the chairperson of the board or presiding hearing officer during the public hearing includes:

(1) Setting a ten–minute time limit on oral presentations if necessary.

(2) Excluding any individual(s) who may be either disruptive or obstructive to the hearing; and

(3) Ruling that the oral presentation or discussion is not pertinent to the hearing. ; and

d c. The conduct of the chairperson of the board or presiding officer during the public hearing shall include but need not be limited to:

(1) Open the hearing and receive appearances.

(2) Enter the notice of hearing into the public record.

(3) Review rule(s) under adoption, amendment or repeal and provide rationale for the proposed action by the board.

(4) Receive written and oral presentations.

(5) Read into the official public record written comments which have been submitted.

(6) Inform those individuals present that within 30 days of the date of hearing, the board shall issue a written statement of the principal reasons for and against the rule it adopted, incorporating therein the reasons either for accepting or overruling considerations urged against the rule.

(7) Adjourn the hearing.

10.10(1) 1.9(1) Petition for declaratory order. Any person may file a petition with the board of medical examiners for a declaratory order as to the applicability to specified circumstances of a statute, rule, or order within the primary jurisdiction of the Board of Medical Examiners, at 1209 East Court, Executive Hills West, Des Moines, Iowa 50319 board. A petition is deemed filed when it is received by that the board office. The board of medical examiners shall provide the petitioner with a file–stamped copy of the petition if the petitioner provides the agency board office with an extra copy for this purpose. The petition must be typewritten or legibly handwritten in ink and must substantially conform to the following form:

The petition must provide the following information:

1. A clear and concise statement of all relevant facts on which the order is requested.

2. A citation and the relevant language of the specific statutes, rules, policies, decisions, or orders, whose applicability is questioned, and any other relevant law.

3. The questions petitioner wants answered, stated clearly and concisely.

4. The answers to the questions desired by the petitioner and a summary of the reasons urged by the petitioner in support of those answers.

5. The reasons for requesting the declaratory order and disclosure of the petitioner’s interest in the outcome.

6. A statement indicating whether the petitioner is currently a party to another proceeding involving the questions at issue and whether, to the petitioner’s knowledge, those questions have been decided by, are pending determination by, or are under investigation by, any governmental entity.

7. The names and addresses of other persons, or a description of any class of persons, known by petitioner to be affected by, or interested in, the questions presented in the petition.

8. Any request by petitioner for a meeting provided for by 10.10(7) 1.9(7).

The petition must be dated and signed by the petitioner or the petitioner’s representative. It must also include the name, mailing address, and telephone number of the petitioner and petitioner’s representative, and a statement indicating the person to whom communications concerning the petition should be directed.

10.10(2) 1.9(2) Notice of petition. Within 15 days after receipt of a petition for a declaratory order, the board of medical examiners shall give notice of the petition to all persons not served by the petitioner pursuant to 10.10(6)“c” 1.9(6)“c” to whom notice is required by any provision of law. The board of medical examiners may also give notice to any other persons.

10.10(3) 1.9(3) Intervention.

a. Persons who qualify under any applicable provision of law as an intervenor and who file a petition for intervention within 20 days of the filing of a petition for declaratory order shall be allowed to intervene in a proceeding for a declaratory order.

b. Any person who files a petition for intervention at any time prior to the issuance of an order may be allowed to intervene in a proceeding for a declaratory order at the discretion of the board of medical examiners.

c. A petition for intervention shall be filed with the executive director at the board office at 1209 East Court Avenue, Executive Hills West, Des Moines, Iowa 50319. Such a petition is deemed filed when it is received by that office. The board of medical examiners will provide the petitioner with a file–stamped copy of the petition for intervention if the petitioner provides an extra copy for this purpose. A petition for intervention must be typewritten or legibly handwritten in ink and must substantially conform to the following form:

The petition for intervention must provide the following information:

1. Facts supporting the intervenor’s standing and qualifications for intervention.

2. The answers urged by the intervenor to the question or questions presented and a summary of the reasons urged in support of those answers.

3. Reasons for requesting intervention and disclosure of the intervenor’s interest in the outcome.

4. A statement indicating whether the intervenor is currently a party to any proceeding involving the questions at issue and whether, to the intervenor’s knowledge, those questions have been decided by, are pending determination by, or are under investigation by, any governmental entity.

5. The names and addresses of any additional persons, or a description of any additional class of persons, known by the intervenor to be affected by, or interested in, the questions presented.

6. Whether the intervenor consents to be bound by the determination of the matters presented in the declaratory order proceeding.

The petition must be dated and signed by the intervenor or the intervenor’s representative. It must also include the name, mailing address, and telephone number of the intervenor and intervenor’s representative, and a statement indicating the person to whom communications should be directed.

10.10(4) 1.9(4) Briefs. The petitioner or any intervenor may file a brief in support of the position urged. The board of medical examiners may request a brief from the petitioner, any intervenor, or any other person concerning the questions raised.

10.10(5) 1.9(5) Inquiries. Inquiries concerning the status of a declaratory order proceeding may be made to the Executive Director, Board of Medical Examiners, 1209 East Court, Executive Hills West, Des Moines, Iowa 50319 executive director at the board office.

10.10(6) 1.9(6) Service and filing of petitions and other papers.

a. When service required. Except where otherwise provided by law, every petition for declaratory order, petition for intervention, brief, or other paper filed in a proceeding for a declaratory order shall be served upon each of the parties of record to the proceeding, and on all other persons identified in the petition for declaratory order or petition for intervention as affected by or interested in the questions presented, simultaneously with their filing. The party filing a document is responsible for service on all parties and other affected or interested persons.

b. Filing—when required. All petitions for declaratory orders, petitions for intervention, briefs, or other papers in a proceeding for a declaratory order shall be filed with the Board of Medical Examiners, 1209 East Court, Executive Hills West, Des Moines, Iowa 50319 executive director at the board office. All petitions, briefs, or other papers that are required to be served upon a party shall be filed simultaneously with the board of medical examiners.

c. Method of service, time of filing, and proof of mailing. Method of service, time of filing, and proof of mailing shall be as provided by 653—12.19(17A).

10.10(7) 1.9(7) Consideration. Upon request by petitioner, the board of medical examiners must schedule a brief and informal meeting between the original petitioner, all intervenors, and the board of medical examiners, a member of the board, or a member of the staff of the board, to discuss the questions raised. The board may solicit comments from any person on the questions raised. Also, comments on the questions raised may be submitted to the board by any person.

10.10(8) 1.9(8) Action on petition.

a. Within the time allowed by 1998 Iowa Acts, chapter 1202, section 13(5) Iowa Code section 17A.9(5), after receipt of a petition for a declaratory order, the board of medical examiners or designee shall take action on the petition as required by 1998 Iowa Acts, chapter 1202, section 13(5) Iowa Code section 17A.9(5).

b. The date of issuance of an order or of a refusal to issue an order is as defined in 653—subrule 12.11(1).

10.10(9) 1.9(9) Refusal to issue order.

a. The board of medical examiners shall not issue a declaratory order where prohibited by 1998 Iowa Acts, chapter 1202, section 13(1), Iowa Code section 17A.9(1) and mayrefuse to issue a declaratory order on some or all questions raised for the following reasons:

(1) The petition does not substantially comply with the required form.

(2) The petition does not contain facts sufficient to demonstrate that the petitioner will be aggrieved or adversely affected by the failure of the board to issue an order.

(3) The board does not have jurisdiction over the questions presented in the petition.

(4) The questions presented by the petition are also presented in a current rule making, contested case, or other agency or judicial proceeding, that may definitively resolve them.

(5) The questions presented by the petition would more properly be resolved in a different type of proceeding or by another body with jurisdiction over the matter.

(6) The facts or questions presented in the petition are unclear, overbroad, insufficient, or otherwise inappropriate as a basis upon which to issue an order.

(7) There is no need to issue an order because the questions raised in the petition have been settled due to a change in circumstances.

(8) The petition is not based upon facts calculated to aid in the planning of future conduct but is, instead, based solely upon prior conduct in an effort to establish the effect of that conduct or to challenge an agency decision already made.

(9) The petition requests a declaratory order that would necessarily determine the legal rights, duties, or responsibilities of other persons who have not joined in the petition, intervened separately, or filed a similar petition and whose position on the questions presented may fairly be presumed to be adverse to that of petitioner.

(10) The petitioner requests the board to determine whether a statute is unconstitutional on its face.

b. A refusal to issue a declaratory order must indicate the specific grounds for the refusal and constitutes final agency action on the petition.

c. Refusal to issue a declaratory order pursuant to this provision does not preclude the filing of a new petition that seeks to eliminate the grounds for the refusal to issue an order.

10.10(10) 1.9(10) Contents of declaratory order—effective date. In addition to the order itself, a declaratory order must contain the date of its issuance, the name of petitioner and all intervenors, the specific statutes, rules, policies, decisions, or orders involved, the particular facts upon which it is based, and the reasons for its conclusion. A declaratory order is effective on the date of issuance.

10.10(11) 1.9(11) Copies of orders. A copy of all orders issued in response to a petition for a declaratory order shall be mailed promptly to the original petitioner and all intervenors.

10.10(12) 1.9(12) Effect of a declaratory order. A declaratory order has the same status and binding effect as a final order issued in a contested case proceeding. It is binding on the board of medical examiners, the petitioner, and any intervenors who consent to be bound and is applicable only in circumstances where the relevant facts and the law involved are indistinguishable from those on which the order was based. As to all other persons, a declaratory order serves only as precedent and is not binding on the board of medical examiners. The issuance of a declaratory order constitutes final agency action on the petition.

Pursuant to the authority of Iowa Code sections 147.76 and 272C.3, the Board of Medical Examiners hereby gives Notice of Intended Action to adopt Chapter 3, “Waivers and Variances,” and to amend Chapter 11, “Licensure Requirements”; Chapter 12, “Mandatory Reporting and Grounds for Discipline”; Chapter 13, “Standards of Practice and Professional Ethics”; and Chapter 14*, “Licensure of Acupunctur–ists,” Iowa Administrative Code.

The Board proposes to rescind a subrule regarding waivers that apply only to licensure applications. This subrule will be replaced by the proposed new chapter on waivers and variances.

Proposed Chapter 3 adopts uniform rules regarding petitions for waiver or variance from provisions of Board rules. Executive Order Number 11 directs state rule–making authorities to adopt uniform rules regarding waivers and variances from rules of the authority.

The Board proposes not to allow waivers or variances of the grounds for discipline for physicians; the grounds for discipline for acupuncturists; the standards of professional practice and ethics for physicians; fees; and eligibility and application requirements for acupuncturists.

The Board approved the proposed changes at its regular meeting on September 21, 2000.

Any interested person may present written comments, data, views, and arguments on the proposed amendments not later than 4 p.m. on November 8, 2000. Such written materials should be sent to Ann E. Mowery, Executive Director, Board of Medical Examiners, 400 S.W. 8th Street, Suite C, Des Moines, Iowa 50309–4686.

There will be a public hearing on November 8, 2000, at3 p.m. in the Board office, at which time persons may present their views either orally or in writing. The Board of Medical Examiners office is located at 400 S.W. 8th Street, Suite C, Des Moines, Iowa.

These amendments are intended to implement Iowa Code sections 17A.22, 147.76, 272C.3, and 272C.4.

The following amendments are proposed.

ITEM 1. Adopt the following new chapter:

CHAPTER 3
WAIVERS AND VARIANCES

653—3.1(17A,147,148,150,150A) Definition. For purposes of this chapter, a “waiver or variance” means an action by the board which suspends, in whole or in part, the requirements or provisions of a rule as applied to an identified person on the basis of the particular circumstances of that person. For simplicity, the term “waiver” shall include both a “waiver” and a “variance.”

__________

*To be renumbered as Chapter 17 pursuant to Notice ARC 0210B, page 647 herein.

653—3.2(17A,147,148,150,150A) Scope of chapter. This chapter outlines generally applicable standards and a uniform process for the granting of individual waivers from rules adopted by the board in situations where no other more specifically applicable law provides for waivers. To the extent another more specific provision of law governs the issuance of a waiver from a particular rule, the more specific provision shall supersede this chapter with respect to any waiver from that rule.

653—3.3(17A,147,148,150,150A) Applicability of chapter. The board may grant a waiver from a rule only if the board has jurisdiction over the rule and the requested waiver is consistent with applicable statutes, constitutional provisions, or other provisions of law. The board may not waive requirements created or duties imposed by statute.

653—3.4(17A,147,148,150,150A) Criteria for waiver or variance. In response to a petition completed pursuant to rule 3.6(17A,147,148,150,150A), the board may, in its sole discretion, issue an order waiving, in whole or in part, the requirements of a rule if the board finds, based on clear and convincing evidence, all of the following:

1. The application of the rule would impose an undue hardship on the person for whom the waiver is requested;

2. The waiver from the requirements of the rule in the specific case would not prejudice the substantial legal rights of any person;

3. The provisions of the rule subject to the petition for a waiver are not specifically mandated by statute or another provision of law; and

4. Substantially equal protection of public health, safety, and welfare will be afforded by a means other than that prescribed in the particular rule for which the waiver is requested.

653—3.5(17A,147,148,150,150A) Filing of petition. A petition for a waiver must be submitted in writing to the board, as follows:

3.5(1) License application. If the petition relates to a license application, the petition shall be made in accordance with the filing requirements for the license in question.

3.5(2) Contested cases. If the petition relates to a pending contested case, the petition shall be filed in the contested case proceeding, using the caption of the contested case.

3.5(3) Other. If the petition does not relate to a license application or a pending contested case, the petition may be submitted to the board’s executive director.

3.5(4) File petition. A petition is deemed filed when it is received in the board office. A petition should be sent to the Iowa Board of Medical Examiners, 400 S.W. 8th Street, Suite C, Des Moines, Iowa 50309–4686. The petition must conform to the form specified in rule 3.17(17A,147,148,150, 150A).

653—3.6(17A,147,148,150,150A) Content of petition. A petition for waiver shall include the following information where applicable and known to the requester:

1. The name, address, and telephone number of the person or entity for whom a waiver is being requested, and the case number of or other reference to any related contested case; and the name, address, and telephone number of the petitioner’s legal representative, if any.

2. A description and citation of the specific rule from which a waiver is requested.

3. The specific waiver requested, including the precise scope and duration.

4. The relevant facts that the petitioner believes would justify a waiver under each of the four criteria described in rule 3.4(17A,147,148,150,150A). This statement shall include a signed statement from the petitioner attesting to the accuracy of the facts provided in the petition, and a statement of reasons that the petitioner believes will justify a waiver.

5. A history of any prior contacts between the board and the petitioner relating to the regulated activity or license affected by the proposed waiver, including a description of each affected license held by the requester, any formal charges filed, notices of violation, contested case hearings, or investigations relating to the regulated activity or license within the last five years.

6. Any information known to the requester regarding the board’s action in similar cases.

7. The name, address, and telephone number of any public agency or political subdivision which also regulates the activity in question, or which might be affected by the grant of a waiver.

8. The name, address and telephone number of any person or entity who would be adversely affected by the grant of a petition.

9. The name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver.

10. Signed releases of information authorizing persons with knowledge regarding the request to furnish the board with information relevant to the waiver.

653—3.7(17A,147,148,150,150A) Additional information. Prior to issuing an order granting or denying a waiver, the board may request additional information from the petitioner relative to the petition and surrounding circumstances. If the petition was not filed in a contested case, the board may, on its own motion or at the petitioner’s request, schedule a telephonic or in–person meeting between the petitioner and the board’s executive director, a committee of the board, or a quorum of the board.

653—3.8(17A,147,148,150,150A) Notice. The board shall acknowledge a petition upon receipt. The board shall ensure that all persons to whom notice is required by any provision of law, including the petitioner, receive notice within 30 days of the receipt of the petition, that the petition is pending and a concise summary of its contents. In addition, the board may give notice to other persons. To accomplish this notice provision, the board may require the petitioner to serve the notice on all persons to whom notice is required by any provision of law, and provide a written statement to the board attesting that notice has been provided.

653—3.9(17A,147,148,150,150A) Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings shall apply to any petition for a waiver filed within a contested case, and shall otherwise apply to agency proceedings for a waiver only when the board so provides by rule or order or is required to do so by statute.

653—3.10(17A,147,148,150,150A) Ruling. An order granting or denying a waiver shall be in writing and shall contain a reference to the particular person and rule or portion thereof to which the order pertains, a statement of the relevant facts and reasons upon which the action is based, and a description of the precise scope and duration of the waiver if one is issued.

3.10(1) Board discretion. The final decision on whether the circumstances justify the granting of a waiver shall be made at the sole discretion of the board, upon consideration of all relevant factors. Each petition for a waiver shall be evaluated by the board based on the unique, individual circumstances set out in the petition.

3.10(2) Burden of persuasion. The burden of persuasion rests with the petitioner to demonstrate by clear and convincing evidence that the board should exercise its discretion to grant a waiver from a board rule.

3.10(3) Narrowly tailored. A waiver, if granted, shall provide the narrowest exception possible to the provisions of a rule.

3.10(4) Administrative deadlines. When the rule from which a waiver is sought establishes administrative deadlines, the board shall balance the special individual circumstances of the petitioner with the overall goal of uniform treatment of all similarly situated persons.

3.10(5) Conditions. The board may place on a waiver any condition that the board finds desirable to protect the public health, safety, and welfare.

3.10(6) Time period of waiver. A waiver shall not be permanent unless the petitioner can show that a temporary waiver would be impracticable. If a temporary waiver is granted, there is no automatic right to renewal. At the sole discretion of the board, a waiver may be renewed if the board finds that grounds for a waiver continue to exist.

3.10(7) Time for ruling. The board shall grant or deny a petition for a waiver as soon as practicable but, in any event, shall do so within 120 days of its receipt, unless the petitioner agrees to a later date. However, if a petition is filed in a contested case, the board shall grant or deny the petition no later than the time at which the final decision in that contested case is issued.

3.10(8) When deemed denied. Failure of the board to grant or deny a petition within the required time period shall be deemed a denial of that petition by the board. However, the board shall remain responsible for issuing an order denying a waiver.

3.10(9) Service of order. Within seven days of its issuance, any order issued under this chapter shall be transmitted to the petitioner or the person to whom the order pertains, and to any other person entitled to such notice by any provision of law.

653—3.11(17A,147,148,150,150A) Public availability. All orders granting or denying a waiver petition shall be indexed, filed, and available for public inspection as provided in Iowa Code section 17A.3. Petitions for a waiver and orders granting or denying a waiver petition are public records under Iowa Code chapter 22. Some petitions or orders may contain information the board is authorized or required to keep confidential. The board may accordingly redact confidential information from petitions or orders prior to public inspection.

653—3.12(17A,147,148,150,150A) Summary reports. Semiannually, the board shall prepare a summary report identifying the rules for which a waiver has been granted or denied, the number of times a waiver was granted or denied for each rule, a citation to the statutory provisions implemented by these rules, and a general summary of the reasons justifying the board’s actions on waiver requests. If practicable, the report shall detail the extent to which the granting of a waiver has affected the general applicability of the rule itself. Copies of this report shall be available for public inspection and shall be provided semiannually to the administrative rules coordinator and the administrative rules review committee.

653—3.13(17A,147,148,150,150A) Cancellation of a waiver. A waiver issued by a division board pursuant to this chapter may be withdrawn, canceled, or modified if, after appropriate notice and hearing, the board issues an order finding any of the following:

1. The petitioner or the person who was the subject of the waiver order withheld or misrepresented material facts relevant to the propriety or desirability of the waiver; or

2. The alternative means for ensuring that the public health, safety and welfare will be adequately protected after issuance of the waiver order have been demonstrated to be insufficient; or

3. The subject of the waiver order has failed to comply with all conditions contained in the order.

653—3.14(17A,147,148,150,150A) Violations. Violation of a condition in a waiver order shall be treated as a violation of the particular rule for which the waiver was granted. As a result, the recipient of a waiver under this chapter who violates a condition of the waiver may be subject to the same remedies or penalties as a person who violates the rule at issue.

653—3.15(17A,147,148,150,150A) Defense. After the board issues an order granting a waiver, the order is a defense within its terms and the specific facts indicated therein only for the person to whom the order pertains in any proceeding in which the rule in question is sought to be invoked.

653—3.16(17A,147,148,150,150A) Judicial review. Judicial review of a board’s decision to grant or deny a waiver petition may be taken in accordance with Iowa Code chapter 17A.

653—3.17(17A,147,148,150,150A) Sample petition for waiver. A petition for waiver filed in accordance with this chapter must meet the requirements specified herein and must substantially conform to the following form:

1. Provide the name, address, and telephone number of the petitioner (person asking for a waiver or variance). Also, the name, address, and telephone number of the petitioner’s legal representative, if applicable, and a statement indicating the person to whom communications concerning the petition should be directed.

2. Describe and cite the specific rule from which a waiver is requested.

3. Describe the specific waiver requested, including the precise scope and time period for which the waiver will extend.

4. Explain the relevant facts and reasons that the petitioner believes justify a waiver. Include in your answer all of the following:

a. Why applying the rule would result in undue hardship to the petitioner;

b. Why waiving the rule would not prejudice the substantial legal rights of any person;

c. Whether the provisions of the rule subject to the waiver are specifically mandated by statute or another provision of law; and

d. How substantially equal protection of public health, safety, and welfare will be afforded by a means other than that prescribed in the particular rule for which the waiver is requested.

5. Provide a history of any prior contacts between the board and petitioner relating to the regulated activity or license that would be affected by the waiver. Include a description of each affected license held by the petitioner, any formal charges filed, any notices of violation, any contested case hearings held, or any investigations related to the regulated activity, license, registration, certification, or permit.

6. Provide information known to the petitioner regarding the board’s action in similar cases.

7. Provide the name, address, and telephone number of any public agency or political subdivision that also regulates the activity in question, or that might be affected by the grant of the petition.

8. Provide the name, address, and telephone number of any person or entity that would be adversely affected by the grant of the waiver or variance.

9. Provide the name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver.

10. Provide signed releases of information authorizing persons with knowledge regarding the request to furnish the board with information relevant to the waiver.

I hereby attest to the accuracy and truthfulness of the above information.

___________________________________ __________

Petitioner’s signature Date x

These rules are intended to implement Iowa Code chapter 17A as amended by 2000 Iowa Acts, House File 2206, and Iowa Code chapters 147, 148, 150, and 150A.

ITEM 2. Rescind subrule 11.9(3).

ITEM 3. Adopt the following new rule:

653—11.36(17A,147,148,272C) Waiver or variance prohibited. Rules in this chapter are not subject to waiver or variance pursuant to IAC 653—Chapter 3 or any other provision of law.

ITEM 4. Amend 653—12.4(272C), introductory paragraph, as follows:

653—12.4(272C) Additional grounds for discipline. The board has authority to impose discipline for any violation of Iowa Code chapter 147, 148, or 272C or the rules promulgated thereunder. The board may impose any of the disciplinary sanctions set forth in rule 12.33(272C), including civil penalties in an amount not to exceed $10,000, when the board determines that the licensee is guilty of any of the following acts or offenses. This rule is not subject to waiver or variance pursuant to IAC 653—Chapter 3 or any other provision of law.

ITEM 5. Adopt the following new rule:

653—13.12(17A,147,148,272C) Waiver or variance prohibited. Rules in this chapter are not subject to waiver or variance pursuant to IAC 653—Chapter 3 or any other provision of law.

ITEM 6. Adopt the following new subrule:

14.4(6) Waiver or variance prohibited. Provisions of this rule are not subject to waiver or variance pursuant to IAC 653—Chapter 3 or any other provision of law.

ITEM 7. Adopt the following new subrule:

14.5(10) Waiver or variance prohibited. Provisions of this rule are not subject to waiver or variance pursuant to IAC 653—Chapter 3 or any other provision of law.

ITEM 8. Amend 653—14.11(147,148E,272C), introductory paragraph, as follows:

653—14.11(147,148E,272C) General disciplinary provisions. The board is authorized to take disciplinary action against any licensee who violates the provisions set forth in state law and administrative rules pertaining to the safe and healthful practice of acupuncture. This rule is not subject to waiver or variance pursuant to IAC 653—Chapter 3 or any other provision of law.

ITEM 9. Adopt the following new rule:

653—14.30(147,148E,272C) Waiver or variance prohibited. Fees in this chapter are not subject to waiver or variance pursuant to IAC 653—Chapter 3 or any other provision of law.

Pursuant to the authority of Iowa Code sections 147.76 and 272C.3, the Board of Medical Examiners hereby gives Notice of Intended Action to amend Chapter 11, “Licensure Requirements,” Iowa Administrative Code.

The Board approved amendments to Chapter 11 during its regularly held meeting on September 21, 2000. The proposed amendments revise the current Chapter 11 as follows:

• In accordance with Iowa Code section 148.5 as amended by 2000 Iowa Acts, Senate File 2302, section 32, the period of a resident license is being changed from one year to an initial license period of two years followed by annual renewals for those who do not get a permanent license. Renewal will require completion of an application, payment of a fee, and a statement from the residency program. The rule is also being revised to add a statement that the board may take disciplinary action on a resident’s license for the same reasons it may take action against a permanent license.

• A subscriber to a password–protected Web site will be able to receive verification of licensure status by payment of an individual verification charge of $3 or an annual subscription of $2,000 for unlimited verifications in 12 months.

Any interested person may present written comments on the proposed amendments not later than 4 p.m. on November 8, 2000. Such written materials should be sent to Ann E. Mowery, Executive Director, Board of Medical Examiners, 400 S.W. 8th Street, Suite C, Des Moines, Iowa 50309–4686.

There will be a public hearing on November 8, 2000, at 2:30 p.m. in the Board office, at which time persons may present their views either orally or in writing. The Board of Medical Examiners office is located at 400 S.W. 8th Street, Suite C, Des Moines, Iowa.

These amendments are intended to implement Iowa Code sections 147.55, 147.76, 148.13, 148E.7 and 272C.3.

The following amendments are proposed.

ITEM 1. Amend 653—11.6(148) as follows:

11.6(1) General provisions. The license shall be designated “Resident Physician License” and shall authorize the licensee to practice as a resident physician, while under the supervision of a licensed practitioner of medicine and surgery or osteopathic medicine and surgery, in an institution or program approved for this purpose by the board. A resident physician license shall expire one year two years following the date of issuance and may be annually renewed thereafter at the discretion of the medical examiners at a fee of $25.

11.6(2) Requirements for the initial resident physician license. Each applicant shall:

a. Submit a completed application form accompanied by a fee of $50 $75.

b. Present a notarized photocopy of a diploma issued by a school or college of medicine and surgery or a school or college of osteopathic medicine and surgery approved by the board, or present other evidence of equivalent medical education approved by the board. The board may accept, in lieu of a diploma from a school or college of medicine approved by it, all of the following:

(1) A notarized photocopy of a diploma issued by a school or college of medicine which has been neither approved or disapproved by the board.

(2) The standard certificate issued by the Educational Commission for Foreign Medical Graduates or the completion of a fifth pathway program in accordance with criteria established by the American Medical Association.

11.6(3) c. Candidates may be required to satisfactorily complete an examination prescribed by the medical examiners board.

a. (1) The board may require written, oral or practical examination.

b. (2) The candidate may be required to appear for a personal interview before the board or a committee of the board.

d. The board may refuse to grant renewal of the license pursuant to Iowa Code section 147.4, upon any of the grounds for which licensure may be revoked or suspended as specified in Iowa Code section 147.55.

11.6(3) Requirements for renewal of a resident physician license.

11.6(4) Discipline of a resident license. The board may discipline a license for any of the grounds for which licensure may be revoked or suspended as specified in Iowa Code section 147.55 or 148.6 or Iowa Code chapter 272C.

ITEM 2. Amend subparagraph 11.31(4)“a”(3) as follows:

(3) For an unlimited number of verifications verification of licensure status from a password–protected Web site in a 12–month period, the board shall charge a subscriber $3 per verification or an annual subscription fee of $2,000 for an unlimited number of verifications in 12 months.

Pursuant to the authority of Iowa Code section 455G.4(3), the Iowa Comprehensive Petroleum Underground Storage Tank Fund Board hereby gives Notice of Intended Action to amend Chapter 1, “General,” Iowa Administrative Code.

These proposed amendments are intended to update the Board’s meeting schedule.

Public comments concerning the proposed amendments will be accepted until 4 p.m. on November 7, 2000. Interested persons may submit written or oral comments by contacting the Office of the Deputy Commissioner of Insurance, Division of Insurance, 330 Maple Street, Des Moines, Iowa 50319; telephone (515)281–5705.

These amendments do not mandate additional combined expenditures exceeding $100,000 by all affected political subdivisions or agencies and entities which contract with political subdivisions to provide services.

These amendments are intended to implement Iowa Code section 455G.

The following amendments are proposed.

Amend rule 591—1.3(455G) as follows:

591—1.3(455G) General course and method of operations. Regular meetings of the board shall be held monthly on the second and fourth Thursday of each month at 11 10 a.m. in Room 116, Iowa State Capitol Building the Office of the Insurance Commissioner, 330 E. Maple, Des Moines, Iowa, unless another time and place of meetings are designated by the board. The board may also hold special meetings as it deems appropriate. If the meeting date coincides with a legal holiday, it shall be held on the next succeeding business day. The purposes of such meetings shall be to review progress in implementation and administration of board programs, to consider and act upon proposals, to establish policy as needed, and to take actions as necessary and appropriate.

Pursuant to the authority of Iowa Code section 455G.4(3), the Iowa Comprehensive Petroleum Underground Storage Tank Fund Board hereby gives Notice of Intended Action to amend Chapters 1 to 4, Iowa Administrative Code.

These proposed amendments are intended to change the contact address in Chapters 1 to 4.

Public comments concerning the proposed amendments will be accepted until 4 p.m. November 7, 2000. Interested persons may submit written or oral comments by contacting the Office of the Deputy Commissioner of Insurance, Division of Insurance, 330 Maple Street, Des Moines, Iowa 50319; telephone (515)281–5705.

These amendments do not mandate additional combined expenditures exceeding $100,000 by all affected political subdivisions or agencies and entities which contract with political subdivisions to provide services.

These amendments are intended to implement Iowa Code section 455G.

The following amendments are proposed.

ITEM 1. Amend rule 591—1.4(455G) as follows:

591—1.4(455G) Location where public may submit requests for assistance or information. Requests for assistance or information should be directed to Administrator, Iowa Comprehensive Petroleum Underground Storage Tank Fund Board, c/o the Iowa Division of Insurance, 6th Floor, Lucas State Office Building, Des Moines, Iowa 50319 2700 Westown Parkway, Suite 320, West Des Moines, Iowa 50255, telephone number (515)281–5569 225–9263. Requests may be made personally, by telephone, mail or any other medium available, between the hours of 8:30 a.m. and 4:30 p.m., Monday through Friday. Special arrangements for accessibility of the board at other times will be provided as needed.

ITEM 2. Amend rules 591—2.1(17A) and 591— 2.3(17A) as follows:

591—2.1(17A) Petition for rule making. In lieu of the word “agency”, insert the word “board”; in lieu of the words “(designated office)”, insert the words “Office of the Deputy Commissioner of Insurance, Division of Insurance, 6th Floor, Lucas State Office Building, Des Moines, Iowa 50319 Administrator, Iowa Comprehensive Petroleum Underground Storage Tank Fund Board, 2700 Westown Parkway, Suite 320, West Des Moines, Iowa 50266”; in lieu of the word “agency’s”, insert the word “board’s”; and in lieu of the words “(AGENCY NAME)”, insert the words “IOWA COMPREHENSIVE PETROLEUM UNDERGROUND STORAGE TANK FUND BOARD”.

591—2.3(17A) Inquiries. In lieu of the words “(designate official by full title and address)”, insert the words “Office of the Deputy Commissioner of Insurance, Division of Insurance, 6th Floor, Lucas State Office Building, Des Moines, Iowa 50319 Administrator, Iowa Comprehensive Petroleum Underground Storage Tank Fund Board, 2700 Westown Parkway, Suite 320, West Des Moines, Iowa 50266”.

ITEM 3. Amend rules 591—3.1(17A) and 591— 3.3(17A) as follows:

591—3.1(17A) Petition for declaratory ruling. In lieu of the word “agency”, insert the word “board” except for the first time the word “agency” appears in the first sentence of rule 591—3.1(17A); in lieu of the words “(designate office)”, insert the words “Office of the Deputy Commissioner of Insurance, Division of Insurance, 6th Floor, Lucas State Office Building, Des Moines, Iowa 50319 Administrator, Iowa Comprehensive Petroleum Underground Storage Tank Fund Board, 2700 Westown Parkway, Suite 320, West Des Moines, Iowa 50266”; and in lieu of the words “(AGENCY NAME)”, insert the words “IOWA COMPREHENSIVE PETROLEUM UNDERGROUND STORAGE TANK FUND BOARD”.

591—3.3(17A) Inquiries. In lieu of the words “(designate official by full title and address)”, insert the words “Office of the Deputy Commissioner of Insurance, Division of Insurance, 6th Floor, Lucas State Office Building, Des Moines, Iowa 50319 Administrator, Iowa Comprehensive Petroleum Underground Storage Tank Fund Board, 2700 Westown Parkway, Suite 320, West Des Moines, Iowa 50266”.

ITEM 4. Amend subrule 4.11(1) as follows:

4.11(1) Written comments. In lieu of the words “(specify office and address)”, insert “Office of the Deputy Commissioner of Insurance, Division of Insurance, 6th Floor, Lucas State Office Building, Des Moines, Iowa 50319 Administrator, Iowa Comprehensive Petroleum Underground Storage Tank Fund Board, 2700 Westown Parkway, Suite 320, West Des Moines, Iowa 50266”.

Pursuant to the authority of Iowa Code section 455G.4(3), the Iowa Comprehensive Petroleum Underground Storage Tank Fund Board hereby gives Notice of Intended Action to amend Chapter 11, “Remedial Claims,” Iowa Administrative Code.

Chapter 11 describes the guidelines for remedial account claims. This amendment proposes new rule 11.9(455G) which will provide the criteria under which a lien shall attach and be perfected upon real property where an underground storage tank was or is situated and the UST Fund (Fund) has incurred expenses related to the property.

Public comments concerning the proposed amendment will be accepted until 4 p.m. November 7, 2000. Interested persons may submit written or oral comments by contacting the Office of the Deputy Commissioner of Insurance, Division of Insurance, 330 Maple Street, Des Moines, Iowa 50319; telephone (515)281–5705.

This rule does not mandate additional combined expenditures exceeding $100,000 by all affected political subdivisions or agencies and entities which contract with political subdivisions to provide services.

This rule is intended to implement Iowa Code section 455G.13.

The following amendment is proposed.

Amend Chapter 11 by adopting the following new rule:

11.9(1) The board shall have a lien upon real property where an underground storage tank was or is situated and the fund has incurred expenses related to the property.

11.9(2) The board’s lien shall be in the amount the owner or operator of the underground storage tank is liable to the fund.

11.9(3) The liability of an owner or operator shall be no less than the full and total costs of corrective action and bodily injury or property damage to third parties, as specified in Iowa Code section 455G.13(1), if the owner or operator has not complied with the financial responsibility or other underground storage tank rules of the department of natural resources, the fund, or with Iowa Code chapter 455G.

11.9(4) The liability of an owner or operator eligible for assistance under the remedial account shall be no less than the amount of any unpaid portion of the deductible or copayment.

11.9(5) A lien shall attach at the later of the following: the date the fund incurs an expense related to the property, or the date the board mails a certified letter, return receipt requested, to the last–known address of the owner or operator demanding payment for fund expenses.

11.9(6) Liens under this rule shall continue for ten years from the time the lien attaches unless sooner released or otherwise discharged. The lien may be extended, within ten years from the date the lien attaches, by filing for record a notice with the appropriate county official of the appropriate county and from the time of such filing, the lien shall be extended to the property in such county for ten years, unless sooner released or otherwise discharged, with no limit on the number of extensions.

11.9(7) In order to preserve a lien against subsequent mortgagees, purchasers, or judgment creditors, for value and without notice of the lien, on any property situated in a county, the board shall file with the recorder of the county in which the property is located a notice of the lien. The county recorder of each county shall record such liens in the “index of income tax liens.” The recorder shall endorse on each notice of lien the day, hour, and minute when received and preserve the notice, and shall immediately index the notice in the index book and record the lien in the manner provided for recording real estate mortgages, and the lien shall be effective from the time of indexing.

11.9(8) The board shall pay a recording fee as provided in Iowa Code section 331.604 for the recording of the lien, or for its satisfaction.

11.9(9) Upon the payment of the lien as to which the board has filed notice with a county recorder, the board shall file with the recorder a satisfaction of the lien and the recorder shall enter said satisfaction on the notice on file in the recorder’s office and indicate that fact on the index.

Pursuant to the authority of Iowa Code section 455G.4(3), the Iowa Comprehensive Petroleum Underground Storage Tank Fund Board hereby gives Notice of Intended Action to amend Chapter 11, “Remedial Claims,” Iowa Administrative Code.

Chapter 11 describes the guidelines for remedial account claims. This amendment proposes new rule 11.10(455G) which will address actions the Board may take when it becomes aware of certain types of misconduct by contractors or subcontractors.

Public comments concerning the proposed amendment will be accepted until 4 p.m. November 7, 2000. Interested persons may submit written or oral comments by contacting the Office of the Deputy Commissioner of Insurance, Division of Insurance, 330 Maple Street, Des Moines, Iowa 50319; telephone (515)281–5705.

This rule does not mandate additional combined expenditures exceeding $100,000 by all affected political subdivisions or agencies and entities which contract with political subdivisions to provide services.

This rule is intended to implement Iowa Code sections 455G.12A, 455G.3 and 455G.6.

The following amendment is proposed.

Amend Chapter 11 by adopting the following new rule:

11.10(1) Disqualification of contractors. No contractor or subcontractor shall be eligible for payment with UST program funds, nor shall any owner or operator be reimbursed for payments to any contractor or subcontractor, nor shall any contract between an owner or operator and a contractor or subcontractor be approved, if the administrator determines that such contractor or subcontractor or any of its predecessors, affiliates, directors, officers, general partners, or beneficial owners of 10 percent or more of such contractor or subcontractor:

a. Has, within the preceding five years, pleaded guilty to, been convicted of, or received a suspended or deferred judgment for theft, fraud, or any other felony or misdemeanor involving deceit, attempted deceit, or falsification or alteration of documents;

b. Is subject to an order, judgment, or decree of a court of competent jurisdiction (including probation) or an administrative order of any state or federal administrative agency entered within the previous five years, which order, judgment, decree, or administrative order temporarily, preliminarily, or permanently enjoins or restrains him, her, or it from engaging in or continuing the performance of any services relating to underground storage tanks or the assessment or remediation of petroleum contamination as a consequence of his, her, or its own misconduct, negligence, or misfeasance; or

c. Has, within the previous five years, obtained, or attempted to obtain, UST fund benefits:

(1) By means of any intentional or reckless misrepresentation;

(2) By means of any falsified or altered document;

(3) For services which were not performed; or

(4) By other improper means.

11.10(2) Waiver or modification of disqualification. The administrator may, at the administrator’s discretion, to avoid undue hardship to tank owners or operators, to the UST program, or to contractors or subcontractors, waive any disqualification under this rule as to work performed or to be performed for any or for specified owners or operators. The administrator may also condition or qualify the eligibility of a person or entity that is subject to disqualification hereunder to be paid with UST program funds upon such terms and conditions as the administrator shall, in the administrator’s discretion, deem necessary to protect the integrity of the UST program. A disqualification under this rule shall cease to exist if:

a. The basis for the disqualification has been removed by the legislative body, court, or administrative agency creating it;

b. The court or administrative agency with primary jurisdiction over the disqualifying event issues a written waiver of the disqualification;

c. The court or administrative agency with primary jurisdiction over the disqualifying event declines in writing to enforce the disqualification; or

d. More than five years have elapsed since the occurrence of the disqualifying event.

11.10(3) Notice of disqualification; reinstatement. Following a determination that a contractor or subcontractor is disqualified pursuant to this rule, the administrator shall notify the contractor or subcontractor in writing that it is no longer eligible to be compensated with fund moneys. The administrator shall also, unless the disqualification has been waived as to existing clients of the contractor or subcontractor, notify all known clients of the disqualified contractor or subcontractor who are participating in UST Fund programs in writing of the disqualification. A disqualified contractor or subcontractor may apply to the administrator for reinstatement of eligibility. If the disqualification has ceased to exist, the administrator, upon receiving such an application, shall reinstate the eligibility of the contractor or subcontractor to be compensated with fund moneys. If the disqualification has not ceased to exist, the administrator may, in the administrator’s discretion, reinstate the eligibility of the contractor or subcontractor. The administrator shall notify the contractor or subcontractor who has applied for reinstatement of the administrator’s decision within 45 days. The administrator may condition or qualify the reinstatement of a contractor’s or subcontractor’s eligibility to be compensated with UST fund moneys upon such terms and conditions as the administrator shall, in the administrator’s discretion, deem necessary to protect the integrity of the UST program.

11.10(4) Verification of eligibility. For purposes of implementing this rule, the administrator may require that, prior to the approval by the board of any contract or budget for assessment or remedial work, the contractor specified in such contract or budget, and all subcontractors to perform work thereunder, certify that they are not subject to disqualification for any of the reasons specified in subrule 11.10(1). The administrator may develop, and revise as necessary, a form by which contractors and subcontractors may make such certification.

11.10(5) Definitions. For purposes of this rule, the following terms shall have the meanings set forth below:

“Affiliate” means a person who, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the person specified. Entities which have one or more officers or directors in common, whether simultaneously or otherwise, shall be rebuttably presumed to be affiliates.

“Control” (including the terms “controlling,” “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies or day–to–day activities of a person, whether through ownership, by contract, or otherwise.

“Predecessor” means a person, the major portion of whose business and assets another person acquired in a single succession or in a series of related successions in which the acquiring person acquired the major portion of the business and assets of the acquired person.

Pursuant to the authority of Iowa Code sections 17A.10, 17A.22, 124.301, 147.76, and 272C.3, the Board of Phar–macy Examiners hereby gives Notice of Intended Actionto amend Chapter 1, “Purpose and Organization,” Chapter 3, “License Fees, Renewal Dates, Fees for DuplicateLicenses and Certification of Examination Scores,” Chapter 4, “Pharmacist–Intern Registration and Minimum Standards for Evaluating Practical Experience,” Chapter 6, “General Pharmacy Licenses,” Chapter 7, “Hospital Pharmacy Licenses,” Chapter 15, “Correctional Facility Pharmacy Licenses,” Chapter 16, “Nuclear Pharmacy,” and Chapter 19, “Nonresident Pharmacy Licenses,” and to adopt new Chapter 34, “Rules for Waivers and Variances,” Iowa Administrative Code.

The amendments were approved at the September 12, 2000, regular meeting of the Board of Pharmacy Examiners.

The amendments rescind the Board’s current rule regarding procedures for petitions for waiver or variance from rules, adopt new rules regarding petitions for waiver or variance from provisions of Board rules, and change references directing persons to the appropriate rules. Executive Order Number 11 directs state rule–making authorities to adopt rules regarding waivers and variances from rules of the authority and 2000 Iowa Acts, House File 2206, includes requirements imposed on rule–making authorities regarding the grant of such waivers and variances. These proposed amendments implement the requirements of the Executive Order and the new legislation.

Any interested person may present written comments, data, views, and arguments on the proposed amendmentsnot later than 4:30 p.m. on November 7, 2000. Such writtenmaterials should be sent to Lloyd K. Jessen, ExecutiveSecretary/Director, Board of Pharmacy Examiners, 400 S.W. Eighth Street, Suite E, Des Moines, Iowa 50309–4688, orby E–mail to lloyd.jessen@ibpe.state.ia.us.

These amendments are intended to implement Iowa Code sections 17A.22, 22.2, 124.301, 126.17, 147.76, 155A.2, 205.11, 205.13, 272C.3, and 272C.4, and 2000 Iowa Acts, House File 2206.

The following amendments are proposed.

ITEM 1. Rescind rule 657—1.3(17A,124,126,147,155A, 205,272C).

ITEM 2. Amend rule 657—3.4(155A), introductory paragraph; subrule 4.6(1); rule 657—6.3(155A), introductory paragraph; rule 657—6.4(155A); subrule 6.5(3); rule 657—7.3(155A), introductory paragraph; rule 657— 7.4(155A); rule 657—15.2(124,126,155A); rule 657— 15.3(124,126,155A), introductory paragraph; rule 657— 15.4(124,126,155A); rule 657—16.5(155A), introductory paragraph; rule 657—16.6(155A), introductory paragraph; and rule 657—19.6(155A), introductory paragraph, by striking references to “rule 657—1.3(17A,124,126,147, 155A,205,272C)” and inserting in lieu thereof “657— Chapter 34.”

ITEM 3. Adopt new 657—Chapter 34 as follows:

CHAPTER 34
RULES FOR WAIVERS AND VARIANCES

657—34.1(17A) Definition. For purposes of this chapter, a “waiver” or “variance” means action by the board which suspends, in whole or in part, the requirements or provisions of a rule as applied to an identified person or business on the basis of the particular circumstances of that person or business. For simplicity, the term “waiver” shall include both a waiver and a variance and the term “person” shall include both a person and a business.

657—34.2(17A,124,126,147,155A,205,272C) Scope of chapter. This chapter outlines generally applicable standards and a uniform process for the granting of individual waivers from rules adopted by the board in situations when no other more specifically applicable law provides for waivers. To the extent another more specific provision of law governs the issuance of a waiver from a particular rule, the more specific provision shall supersede this chapter with respect to any waiver from that rule.

657—34.3(17A,124,126,147,155A,205,272C) Applicability of chapter. The board may grant a waiver from a rule only if the board has jurisdiction over the rule and the requested waiver is consistent with applicable statutes, constitutional provisions, or other provisions of law. The board may not waive requirements created or duties imposed by statute.

657—34.4(17A) Criteria for waiver or variance. In response to a petition completed pursuant to rule 34.6(17A), the board may in its sole discretion issue an order waiving in whole or in part the requirements of a rule if the board finds, based on clear and convincing evidence, all of the following:

1. The application of the rule would impose an undue hardship on the person for whom the waiver is requested;

2. The waiver from the requirements of the rule in the specific case would not prejudice the substantial legal rights of any person;

3. The provisions of the rule subject to the petition for a waiver are not specifically mandated by statute or another provision of law; and

4. Substantially equal protection of public health, safety, and welfare will be afforded by a means other than that prescribed in the particular rule for which the waiver is requested.

657—34.5(17A,124,126,147,155A,205,272C) Filing of petition. A petition for a waiver shall be submitted in writing to the board as follows:

34.5(1) License, registration, or permit application. If the petition relates to a license, registration, or permit application, the petition shall be made in accordance with the application requirements for the license, registration, or permit in question.

34.5(2) Contested cases. If the petition relates to a pending contested case, the petition shall be filed in the contested case proceeding, using the caption of the contested case.

34.5(3) Other. If the petition does not relate to a license, registration, or permit application or to a pending contested case, the petition may be submitted to the board’s executive secretary/director.

657—34.6(17A) Content of petition. A petition for waiver shall include the following information where applicable and known to the petitioner:

1. The name, address, and telephone number of the person for whom a waiver is being requested and the case number of any related contested case.

2. A description and citation of the specific rule from which a waiver is requested.

3. The specific waiver requested, including the precise scope and duration.

4. The relevant facts that the petitioner believes would justify a waiver under each of the four criteria described in rule 34.4(17A). This shall include a signed statement from the petitioner attesting to the accuracy of the facts provided in the petition and a statement of reasons that the petitioner believes will justify a waiver.

5. A history of any prior contacts between the board and the petitioner relating to the regulated activity, license, registration, or permit affected by the proposed waiver. This history shall include a description of each affected license, registration, or permit held by the petitioner and any notices of violation, contested case hearings, or investigative reports relating to the regulated activity, license, registration, or permit within the last five years.

6. Any information known to the petitioner regarding the board’s treatment of similar cases.

7. The name, address, and telephone number of any public agency or political subdivision which also regulates the activity in question or which might be affected by the granting of the waiver.

8. The name, address, and telephone number of any person who would be adversely affected by the grant of a petition for waiver.

9. The name, address, and telephone number of any person with knowledge of facts relevant to the proposed waiver.

10. Signed releases authorizing persons with knowledge regarding the request to furnish the board with information relevant to the proposed waiver.

657—34.7(17A) Additional information. Prior to issuing an order granting or denying a waiver, the board may request additional information from the petitioner relative to the petition and surrounding circumstances. If the petition was not filed in a contested case, the board may, on its own motion or at the petitioner’s request, schedule a telephonic or in–person meeting between the petitioner and the board’s executivesecretary/director, a committee of the board, or a quorum of the board.

657—34.8(17A) Notice. The board shall acknowledge a petition upon receipt. The board shall ensure that notice of the pendency of the petition and a concise summary of its contents have been provided to all persons to whom notice is required by any provision of law within 30 days of the receipt of the petition. In addition, the board may give notice to other persons. To accomplish this notice provision, the board may require the petitioner to serve the notice on all persons to whom notice is required by any provision of law and provide a written statement to the board attesting that notice has been provided.

657—34.9(17A) Hearing procedures. The provisions of Iowa Code sections 17A.10 through 17A.18A regarding contested case hearings shall apply to any petition for a waiver filed within a contested case. Those provisions shall otherwise apply to agency proceedings for a waiver only when the board so provides by rule or order or is required to do so by statute.

657—34.10(17A) Ruling. An order granting or denying a waiver shall be in writing and shall contain a reference to the particular person and rule or portion thereof to which the order pertains. The order shall include a statement of the relevant facts and reasons upon which the action is based and a description of the precise scope and duration of the waiver if one is issued.

34.10(1) Board discretion. The final decision on whether the circumstances justify the granting of a waiver shall be made at the sole discretion of the board upon consideration of all relevant factors. The board shall evaluate each petition for a waiver based on the unique, individual circumstances set out in the petition.

34.10(2) Burden of persuasion. The burden of persuasion rests with the petitioner to demonstrate by clear and convincing evidence that the board should exercise its discretion to grant a waiver from a board rule.

34.10(3) Narrowly tailored exception. A waiver, if granted, shall provide the narrowest exception possible to the provisions of a rule.

34.10(4) Administrative deadlines. When the rule from which a waiver is sought establishes administrative deadlines, the board shall balance the special individual circumstances of the petitioner with the overall goal of uniform treatment of all similarly situated persons.

34.10(5) Conditions. The board may place any condition on a waiver that the board finds desirable to protect the public health, safety, and welfare.

34.10(6) Time period of waiver. A waiver shall not be permanent unless the petitioner can show that a temporary waiver would be impracticable. If a temporary waiver is granted, there is no automatic right to renewal. At the sole discretion of the board, a waiver may be renewed if the board finds that grounds for the waiver continue to exist.

34.10(7) Time for ruling. The board shall grant or deny a petition for a waiver as soon as practicable but, in any event, shall do so within 120 days of its receipt, unless the petitioner agrees to a later date. However, if a petition is filed in a contested case, the board shall grant or deny the petition no later than the time at which the final decision in that contested case is issued.

34.10(8) When deemed denied. Failure of the board to grant or deny a petition within the required time period shall be deemed a denial of that petition by the board. However, the board shall remain responsible for issuing an order denying a waiver.

34.10(9) Service of order. Within seven days of its issuance, any order issued under these rules shall be transmitted to the petitioner or the person to whom the order pertains and to any other person entitled to such notice by any provision of law.

657—34.11(17A,22) Public availability. All orders granting or denying a waiver petition shall be indexed, filed, and made available for public inspection as provided in Iowa Code section 17A.3. Petitions for waiver and orders granting or denying waiver petitions are public records under Iowa Code chapter 22. Some petitions or orders may contain information the board is authorized or required to keep confidential. The board may accordingly redact confidential information from petitions or orders prior to public inspection.

657—34.12(17A) Summary reports. The board shall semiannually prepare a summary report identifying the rules for which a waiver has been granted or denied, the number of times a waiver was granted or denied for each rule, and a citation to the statutory provisions implemented by these rules. The report shall include a general summary of the reasons justifying the board’s actions on waiver requests and, if practicable, shall detail the extent to which the granting of a waiver has affected the general applicability of the rule itself. Copies of this report shall be available for public inspection and shall be provided semiannually to the administrative rules coordinator and the administrative rules review committee.

657—34.13(17A) Cancellation of a waiver. A waiver issued by the board pursuant to this chapter may be withdrawn, canceled, or modified if, after appropriate notice and hearing, the board issues an order finding any of the following:

1. That the petitioner or the person who was the subject of the waiver order withheld or misrepresented material facts relevant to the propriety or desirability of the waiver; or

2. That the alternative means for ensuring adequate protection of the public health, safety and welfare after issuance of the waiver order have been demonstrated to be insufficient; or

3. That the subject of the waiver order has failed to comply with all conditions contained in the order.

657—34.14(17A,124,126,147,155A,205,272C) Violations. Violation of a condition in a waiver order shall be treated as a violation of the particular rule for which the waiver was granted. As a result, the recipient of a waiver under this chapter who violates a condition of the waiver may be subject to the same remedies or penalties as a person who violates the rule at issue.

657—34.15(17A,124,126,147,155A,205,272C) Defense. After the board issues an order granting a waiver, the order is a defense for the person to whom the order pertains, within the terms and the specific facts indicated therein, in any proceeding in which the rule in question is sought to be invoked.

657—34.16(17A) Judicial review. Judicial review of a board’s decision to grant or deny a waiver petition may be taken in accordance with Iowa Code chapter 17A.

These rules are intended to implement Iowa Code sections 17A.22, 22.2, 124.301, 126.17, 147.76, 155A.2, 205.11, 205.13, 272C.3, and 272C.4, and 2000 Iowa Acts, House File 2206.

Pursuant to the authority of Iowa Code section 147.76, the Board of Behavioral Science Examiners hereby gives Notice of Intended Action to amend Chapter 30, “Licensure of Marital and Family Therapists and Mental Health Counselors,” and Chapter 31, “Continuing Education and Disciplinary Process,” and adopt new Chapter 32, “Continuing Education for Marital and Family Therapists and Mental Health Counselors,” Iowa Administrative Code.

The proposed amendments rescind the current continuing education rules; adopt a new chapter for continuing education; renumber the rule regarding grounds for discipline; and amend cross references to rules.

Any interested person may make written comments on the proposed amendments no later than November 9, 2000, addressed to Rosalie Steele, Professional Licensure Division, Department of Public Health, Lucas State Office Building, Des Moines, Iowa 50319–0075.

The Division revised these rules according to Executive Order Number 8. The Division sent letters to the public for comment and two letters were received in return. Division staff also had input on these rules. The comments received were discussed by the Board and decisions were based on need, clarity, intent and statutory authority, cost and fairness.

A public hearing will be held on November 9, 2000, from 9 to 11 a.m. in Fifth Floor Conference Room, Lucas State Office Building, at which time persons may present their views either orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of the proposed amendments.

These amendments are intended to implement Iowa Code section 147.76 and chapter 272C.

The following amendments are proposed.

ITEM 1. Amend rule 645—30.1(147,154D) by rescinding the definition of “hour of continuing education.”

ITEM 2. Amend paragraph 30.3(2)“d” as follows:

d. All supervision beginning on or after January 1, 2001 2003, shall be provided by a person licensed as a marital and family therapist.

ITEM 3. Amend paragraph 30.4(2)“e” as follows:

e. All supervision beginning on or after January 1, 2001 2003, must shall be provided by a person licensed as a mental health counselor.

ITEM 4. Adopt new subrule 30.5(10) as follows:

30.5(10) Licensees who obtain licenses through interstate endorsement shall obtain 40 hours of continuing education credit for renewal of the license if obtained in the first year of the continuing education biennium and 20 hours if the license is obtained in the second year of the continuing education biennium.

ITEM 5. Rescind rule 645—30.8(147,154D) and renumber 645—30.10(147,154D) as 645—30.8(147,154D).

ITEM 6. Rescind rule 645—30.9(147,154D).

ITEM 7. Amend 645—Chapter 31, title, as follows:

CHAPTER 31
CONTINUING EDUCATION AND
DISCIPLINARY PROCESS PROCEDURES

ITEM 8. Rescind rules 645—31.1(272C) to 645— 31.3(272C) and renumber rules 645—31.8(147,154D, 272C) to 645—31.10(147,154D,272C) as 645—31.1(147, 154D,272C) to 645—31.3(147,154D,272C).

ITEM 9. Amend renumbered subrule 31.2(2), paragraph “b,” as follows:

b. Marital and family therapists use client or clinical materials in teaching, writing, and public presentations only if a written waiver has been obtained in accordance with 31.9(2)“a”(4) 31.2(2)“a”(4), or when appropriate steps have been taken to protect client identity and confidentiality.

ITEM 10. Rescind and reserve rules 645—31.4(272C) to 645—31.6(272C).

ITEM 11. Adopt new 645—Chapter 32 as follows:

CHAPTER 32
CONTINUING EDUCATION FOR
MARITAL AND FAMILY THERAPISTS
AND MENTAL HEALTH COUNSELORS

645—32.1(272C) Definitions. For the purpose of these rules, the following definitions shall apply:

“Active license” means the license of a person who is acting, practicing, functioning, and working in compliance with license requirements.

“Administrator” means the administrator of the board of behavioral science examiners.

“Approved program/activity” means a continuing education program/activity meeting the standards set forth in these rules, which has received advance approval by the board pursuant to these rules.

“Approved sponsor” means a person or an organization sponsoring continuing education activities, that has been approved by the board as a sponsor pursuant to these rules. During the time an organization, educational institution, or person is an approved sponsor, all continuing education activities of such organization, educational institution, or person may be deemed automatically approved.

“Audit” means the selection of licensees for verification of satisfactory completion of continuing education requirements during a specified time period or the selection of providers for verification of adherence to continuing education provider requirements during a specified time period.

“Board” means the board of behavioral science examiners.

“Continuing education” means planned, organized learning acts designed to maintain, improve, or expand a licensee’s knowledge and skills in order for the licensee to develop new knowledge and skills relevant to the enhancement of practice, education, or theory development to improve the safety and welfare of the public.

“Hour of continuing education” means a clock hour spent by a licensee in actual attendance at and completion of approved continuing education activity.

“Inactive license” means the license of a person who is not in practice in the state of Iowa.

“Lapsed license” means a license that a person has failed to renew as required, or the license of a person who failed to meet stated obligations for renewal within a stated time.

“License” means license to practice.

“Licensee” means any person licensed to practice marital and family therapy or mental health counseling in the state of Iowa.

32.2(1) The biennial continuing education compliance period shall extend for a two–year period beginning on October 1 of the even–numbered year and ending on September 30 of the next even–numbered year. Each biennium, each person who is licensed to practice as a licensee in this state shall be required to complete a minimum of 40 hours of continuing education approved by the board.

32.2(2) Requirements of new licensees. Those persons licensed for the first time shall not be required to complete continuing education as a prerequisite for the first renewal of their license. Continuing education hours acquired anytime from the initial licensing until the second license renewal may be used. The new licensee will be required to complete a minimum of 40 hours of continuing education per biennium for each subsequent license renewal.

32.2(3) Hours of continuing education credit may be obtained by attending and participating in a continuing education activity. These hours must be approved by the board or otherwise meet the requirements herein pursuant to statutory provisions and the rules that implement them.

32.2(4) No hours of continuing education shall be carried over into the next biennium except as stated for the second renewal.

32.2(5) It is the responsibility of each licensee to finance the cost of continuing education.

32.3(1) General criteria. A continuing education activity which meets all of the following criteria is appropriate for continuing education credit if it is determined by the board that the continuing education activity:

a. Constitutes an organized program of learning which contributes directly to the professional competency of the licensee;

b. Pertains to subject matters which integrally relate to the practice of the profession;

c. Is conducted by individuals who have specialized education, training and experience by reason of which said individuals should be considered qualified concerning the subject matter of the program. The application must be accompanied by a paper, manual or outline which substantively pertains to the subject matter of the program and reflects program schedule, goals and objectives. The board may request the qualifications of presenters.

d. Fulfills stated program goals, objectives, or both; and

e. Provides proof of attendance to licensees in attendance including:

(1) Date(s), location, course title, presenter(s);

(2) Number of program contact hours (One contact hour usually equals one hour of continuing education credit.); and

(3) Official signature or verification by program sponsor.

32.3(2) Specific criteria. Continuing education hours of credit may be obtained by completing the following:

a. Attendance at sponsor–approved workshops, conferences, symposiums and academic courses. Official transcripts indicating successful completion of academic courses which apply to the field of mental health counseling or marital and family therapy, as appropriate, will be necessary in order to receive the following continuing education credits:

1 academic semester hour = 15 continuing education hours

1 academic quarter hour = 10 continuing education hours

b. A sponsor–approved activity/program approved by the board of social work examiners or the board of psychology examiners.

c. A maximum of 20 hours of continuing education credit may be granted for any of the following activities not to exceed a combined total of 20 hours:

(1) Presenting professional programs which meet the criteria in 645—32.3(272C). Two hours of credit will be awarded for each hour of presentation. A course schedule or brochure must be maintained for audit. Presentation at a professional program does not include teaching class at an institution of higher learning at which the applicant is regularly and primarily employed. Presentations to lay public are excluded.

(2) Scholarly research or other activities, the results of which are published in a recognized professional publication such as a refereed journal, monograph or conference proceedings. The scholarly research must be integrally related to the practice of the professions.

(3) Publication in a refereed journal. The article in a refereed journal for which the licensee is seeking continuing education credit must be integrally related to the practice of the professions.

(4) Distance learning conferences or courses will be allowed if the following criteria are met:

1. The program is offered through electronic transmission such as the Iowa Communications Network (ICN).

2. The program allows for interaction between the presenter and the participants.

3. The program issues the participants an official transcript, certificate of attendance or verification of successful completion of the course which applies to the field of mental health counseling or marital and family therapy.

(5) Home study courses will be allowed if the following criteria are met:

1. The program is recognized by the National Board for Certified Counselors (NBCC), Commission on Rehabilitation Counselor Certification (CRCC), American Association of Marriage and Family Therapy(AAMFT) or meets all of the criteria in 645—32.3(272C).

2. An official transcript, verification or certificate of completion is presented after successful completion of the course.

(6) Viewing multimedia presentations will be allowed if the following criteria are met:

1. There is a sponsoring group or agency.

2. There is a facilitator or program official present.

3. The program official may not be the only attendee.

4. The program meets all of the criteria in 645— 32.3(272C).

(7) Computer–assisted instructional courses or programs pertaining to the practice of mental health counseling or marital and family therapy will be allowed if the following criteria are met:

1. The courses and programs are approved by the National Board for Certified Counselors (NBCC), Commission on Rehabilitation Counselor Certification (CRCC), American Association of Marriage and Family Therapy (AAMFT) or their affiliates or meet all of the criteria in 645— 32.3(272C).

2. An official transcript, certificate of completion, or verification that includes the following information is presented after successful completion of the course:

• Date course/program was completed.

• Title of the course/program.

• Number of course/program continuing education hours.

• Official signature or verification of the course/program sponsor.

(8) Teaching in an approved college, university, or graduate school. The licensee may receive credit on a one–time basis for the first offering of the course.

(9) Authoring papers, publications, and books. The licensee shall receive five hours of credit per page with a maximum of 20 hours of credit.

32.4(1) Approval of sponsors. An applicant who desires approval as a sponsor of courses, programs, or other continuing education activities shall, unless exempted elsewhere in these rules, apply for approval to the board on the form designated by the board stating the applicant’s educational history for the preceding two years or proposed plan for the next two years.

a. The form shall include:

(1) Date(s), location, course title(s) offered and outline of content;

(2) Total hours of instruction to be presented;

(3) Names and qualifications of instructors including résumés or vitae; and