Pages 841 to 922 include ARC 0297B to ARC 0337B

Administrative Rules Review Committee 830

Schedule for rule making 828

Publication procedures 829

Administrative rules on CD–ROM 829

Agency identification numbers 839

Filed, Superintendent—appointment of
assistants, 1.3(1)“b” ARC 0304B 896

CITATION OF ADMINISTRATIVE RULES 827

Notice, Iowa empowerment board, 1.2,
1.4 to 1.7, 1.10, 1.12, 1.13(2), 1.16,
1.19, 1.23, 1.25, 1.26(1), 1.28, 1.29, 1.31
ARC 0331B 841

Notice, Licensure by comity, 1.4 ARC 0330B 844

Notice, Child care assistance overpayments,
7.1, 7.5(9), 11.1, 93.151, 170.1, 170.9
ARC 0310B 845

Notice Terminated, Increase in RCF
reimbursement rate, 52.1(3) ARC 0311B 848

Notice, HCBS physical disability waivers,
83.102, 83.109(1) ARC 0312B 848

Filed, Reimbursement rate—SSA residential
care facilities and in–home health related
care, 52.1(3), 177.4 ARC 0305B 896

Filed, Refugee cash assistance—date of entry
for asylees, 60.7 ARC 0306B 897

Filed, Eligibility for Medicaid—transfer of
assets, 75.23(8), 89.3, 89.10 ARC 0307B 898

Filed, Medicare and Medicaid reimbursements—
critical access hospitals, 79.1 ARC 0308B 899

Filed, Dependent adult abuse, 176.3(1), 176.6,
176.10, 176.13, 176.15(2) ARC 0309B 900

Notice, Contested cases, ch 6 ARC 0297B 849

Notice, Waivers, ch 7 ARC 0328B 857

Notice, Financial information regulation,
ch 90 ARC 0325B 859

Filed Emergency, Financial information
regulation, ch 90 ARC 0334B 886

Filed, Supervision of pharmacists who
administer adult immunizations, 13.3
ARC 0301B 902

Filed, State parks and recreation areas, ch 61
ARC 0337B 903

Filed, Fishing—method of take, 81.2(11)
ARC 0336B 914

Filed, Wild turkey spring hunting, 98.1(1),
98.3, 98.5, 98.14, 98.16 ARC 0335B 915

Filed Emergency, License renewal
application, 3.7(3), 5.2(3) ARC 0332B 893

Filed, Waiver and variance rules, ch 15
ARC 0333B 917

Notice, Controlled substances—registration
and reregistration fee, 10.3 ARC 0298B 859

Filed, Supervision of pharmacists who
administer adult immunizations, 8.33
ARC 0329B 917

Notice, Licensure of cosmetologists, electrologists,
estheticians, manicurists, nail technologists, and
instructors of cosmetology arts and sciences;
fees, chs 60, 62 ARC 0319B 860

Notice, Continuing education for cosmetology
arts and sciences, ch 64, 65.1, 65.12
ARC 0320B 864

Filed, Barber examiners, 20.12, 20.101 to 20.105,
20.107 to 20.113, 20.200, 20.212, 20.214, ch 23
ARC 0322B 918

Filed, Physical therapists and physical therapist
assistants, 200.3(1), 200.5(2), 200.9 to 200.15,
200.23, 200.24, 202.6(2), 202.7 to 202.15,
202.23, ch 303 ARC 0318B 919

Filed, Occupational therapists and occupational
therapy assistants, 201.1, 201.4, 201.5(1),
201.7(2), 201.8 to 201.17, 201.24, ch 207
ARC 0317B 919

Filed, Speech pathologists and audiologists,
300.8 to 300.11, 301.1 to 301.7, 301.112,
ch 303 ARC 0321B 919

Notice, EMS—service program authorization,
132.1, 132.2 ARC 0326B 868

Filed Emergency, Iowa fatality review committee,
ch 92 ARC 0327B 894

Summarized list 834

Filed, Fees for performance of plan reviews,
16.131(2) ARC 0314B 920

Filed, Elevator exemption—apartment
buildings less than four stories, 16.705(3)
ARC 0313B 921

Filed, Registration fees—certified general
and certified residential appraisers,
10.1 ARC 0323B 921

Notice, Individual and corporate income tax;
income tax withholding, 39.1, 39.12, 40.3,
40.47, 40.53(1), 40.55, 42.2(10), 42.14, 46.1(2),
52.7, 52.10(3), 52.14, 52.17 ARC 0315B 869

Filed, Sale or rental of information services,
17.36 ARC 0316B 922

Notice, Regions for substance abuse prevention
and treatment, ch 9 ARC 0324B 877

Notice, Consent for sale of goods and services,
26.1, 26.4(2) ARC 0300B 878

Notice, Special permits for operation and
movement of vehicles and loads of excess
size and weight, 511.1 to 511.15 ARC 0299B 878

Notice—Public funds interest rates 883

Notice, Foreign acquisitions, 32.2(4)
ARC 0302B 883

Notice, Negotiated interconnection
agreements, 38.7(4) ARC 0303B 884

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, December 12, 2000, at
9:30 a.m. in Room 118, 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 Supplement section 28.4(9), the Iowa Empowerment Board hereby gives Notice of Intended Action to amend Chapter 1, “Iowa Empowerment Board,” Iowa Administrative Code.

Item 1 amends the parenthetical implementation for each rule in Chapter 1.

Item 2 clarifies the purpose of community empowerment and sets forth desired results.

Item 3 defines “fiscal agent” to include community action agencies and rescinds a definition not needed for implementation.

Item 4 establishes an office of empowerment in the Department of Management.

Item 5 increases the citizen members of the Iowa Empowerment Board from 12 to 13 and adds the Director of the Department of Human Rights.

Item 6 clarifies reporting requirements on local indicators of performance.

Item 7 clarifies the process for establishing the process for reporting results.

Item 8 adds language regarding community empowerment areas acquiring necessary insurance coverage and developing a five– and ten–year Iowa Empowerment Board plan; directs Empowerment Board to make funding formula proposals; identifies grant award time lines; and describes funding formula for school ready dollars.

Item 9 clarifies which entities may serve as fiscal agents.

Item 10 directs that core functions be established for home visitation, parent support and preschool services.

Item 11 clarifies membership of community empowerment boards.

Item 12 defines community empowerment boards as units of local government for tort liability purposes.

Item 13 defines the terms of office for community empowerment boards.

Item 14 adds community action agencies as possible fiscal agents for community empowerment boards.

Item 15 describes the role of the decategorization board.

Item 16 describes the components of the empowerment grant program.

Item 17 describes appropriate use of school ready dollars.

Item 18 describes statewide indicators and performance to be described in the annual report.

Item 19 clarifies the funding of grant awards.

Item 20 describes eligibility for early childhood funds.

Item 21 describes school ready application period.

Item 22 describes Iowa empowerment fund and early childhood programs grant account.

Any interested person may make written suggestions or comments on these proposed amendments prior to January 10, 2001. Such written materials should be directed to the Office of Empowerment, Department of Management, Room 12, State Capitol Building, Des Moines, Iowa 50319; fax (515)281–4225; or E–mail Kris.Bell@idom.state.ia.us. Persons who wish to convey their views orally should contact the Office of Empowerment at (515)281–4537 or (515)281–4321 or at the Office of Empowerment in Room 12 at the State Capitol Building.

These amendments are intended to implement Iowa Code Supplement chapter 28 and 2000 Iowa Acts, chapter 1223.

The following amendments are proposed.

ITEM 1. Amend 349—Chapter 1 by changing the parenthetical implementation from “77GA,SF2406” to “28” wherever it appears.

ITEM 2. Amend rule 349—1.2(28) as follows:

349—1.2(28) Purpose. Pursuant to 1998 Iowa Acts, Senate File 2406, section 12, it is the intent of these rules to support families and to prepare children for school. Pursuant to Iowa Code Supplement section 28.2, it is the intent that these rules apply to the establishment of community empowerment areas for the purpose of empowering individuals and their communities to achieve desired results for improving the quality of life in the communities in this state. The role of the Iowa empowerment board, the state, and local governments is to support and facilitate growth of individual and community responsibility in place of the directive role that the public has come to expect of government. Toward this goal, these rules shall accomplish the following:

1. 1.2(1) Foster collaboration among state agencies which shall initially include the departments of human services, education, and public health and allow for the coordination of these agencies’ funding and other resources.

2. 1.2(2) Establish community empowerment areas with broad community representation with the goal of providing services collaboratively to families and children from birth through five years of age for the purpose of improving the quality of life for families with young children.

ITEM 3. Amend rule 349—1.4(28), definitions of “fiscal agent” and “five–year–old child,” as follows:

“Fiscal agent” means a public agency, as defined in Iowa Code section 28E.2, a community action agency as defined in Iowa Code section 216A.91, or a nonprofit corporation to be designated as the fiscal agent for a community empowerment area.

ITEM 4. Adopt new rule 349—1.5(28) as follows:

349—1.5(28) Community empowerment office established. A community empowerment office is established in accordance with Iowa Code Supplement section 28.3.

1.5(1) This office shall be established as a division of the department of management to provide a center for facilitation, communication and coordination for community empowerment activities and funding.

1.5(2) Staffing for this office shall be provided by a facilitator appointed by the governor, subject to confirmation by the senate, and who serves at the pleasure of the governor. A deputy and support staff may be designated, subject to appropriation made for this purpose.

1.5(3) The facilitator shall provide primary staffing to the board, coordinate state technical assistance activities and implementation of the technical assistance system, and other communication and coordination functions to move authority and decision–making responsibility from the state to communities and individuals.

1.5(4) From the moneys deposited in the school ready children grants account for the fiscal year beginning July 1, 2000, and ending June 30, 2001, not more than $200,000 shall be allocated for the community empowerment office and other technical assistance activities. It is the intent of the general assembly that regional technical assistance teams be established and include staff from various agencies, community colleges, and the Iowa state university of science and technology cooperative extension service in agriculture and home economics. The state empowerment board shall direct staff to work with the advisory council to inventory technical assistance needs. Funds allocated under this subrule may be used by the state empowerment board for the purpose of skills development and support for ongoing training of the regional technical assistance teams. However, funds shall not be used for additional staff or for the reimbursement of staff.

ITEM 5. Amend rule 349—1.6(28), introductory paragraph, as follows:

349—1.6(28) Iowa empowerment board created. An Iowa empowerment board is created in accordance with 1998 Iowa Acts, Senate File 2406, section 3 Iowa Code Supplement section 28.3. Initial appointments shall be made in accordance with 1998 Iowa Acts, Senate File 2406 chapter 1206, section 18. Additional member appointments to the board shall be made in accordance with Iowa Code Supplement section 28.3 and 2000 Iowa Acts, chapter 1223, section 17. The Iowa empowerment board shall consist of 17 voting members with 13 citizen members and 4 state agency members. The 4 state agency members shall be the directors of the following departments: education, human rights, human services, and public health. The 13 citizen members shall be appointed by the governor, subject to confirmation by the senate. The governor’s appointments of citizen members shall be made in a manner so that each of the state’s congressional districts is represented by 2 citizen members and so that all the appointments as a whole reflect the ethnic, cultural, social, and economic diversity of the state. The governor’s appointees shall be selected from individuals nominated by community empowerment boards. The nominations shall reflect the range of interests represented on the community boards so that the governor is able to appoint one or more members each for education, health, human services, business, faith, and public interests. At least 1 of the citizen members shall be a service consumer or the parent of a service consumer. Terms of office of all citizen members are three years. A vacancy on the board shall be filled in the same manner as the original appointments for the balance of the unexpired term.

ITEM 6. Amend subrule 1.7(1) as follows:

1.7(1) In the event that additional appropriations are made to the Iowa empowerment fund account for distribution to the community empowerment areas, continued receipt of those funds is contingent shall result upon showing evidence that the submission to and approval by the Iowa empowerment board of local community empowerment board reports identifying progress has been made toward achieving results as measured through the use of core indicators of performance.

ITEM 7. Amend subrule 1.7(6), paragraph “d,” as follows:

d. The board shall establish guidelines for reporting progress by local empowerment areas, including progress made toward achieving results.

ITEM 8. Adopt new subrules 1.7(7) to 1.7(11) as follows:

1.7(7) The board shall develop guidelines for recommended coverage and take other actions to assist community empowerment area boards in acquiring necessary insurance or other liability coverage at a reasonable cost.

1.7(8) The board shall, with extensive community input, develop and annually update a five–year plan for coordinating, blending, taking other actions to assist community empowerment and redistributing state–administered funding streams made available to community empowerment boards for children aged birth through five.

1.7(9) The board shall, with extensive community input, develop and annually update a ten–year plan for consolidating, blending, and redistributing state–administered funding streams made available to community empowerment areas for other age groups.

The focus for the early years of the ten–year plan shall be on the efforts of the board and affected state agencies to facilitate implementation of individual community empowerment area board requests for pooling, consolidating, blending, and redistributing state–administered funding streams for other age groups.

1.7(10) The board shall develop a distribution formula for allocation of school ready children grant funding to new applicants and to applicants for renewal following expiration of the original grants’ funding period. This formula shall be developed in accordance with 1999 Iowa Acts, chapter 190, section 18.

The board shall submit its recommended formula to the governor and general assembly by December 15, 1999, for enactment by July 1, 2001.

1.7(11) Beginning July 1, 1999, the duration of the second year of school ready children grants that were initially funded in the previous fiscal year shall be shortened to end on June 30, 2000, and the amount of the grant paid out in the fiscal year beginning July 1, 1999, shall be prorated accordingly.

a. Beginning July 1, 1999, the three partially funded empowerment areas shall receive full funding in accordance with 1999 Iowa Acts, chapter 190, section 18.

b. For the fiscal year beginning July 1, 2000, in awarding grants and establishing grant amounts for all designated community empowerment areas that have never been awarded a school ready children grant, the Iowa empowerment board shall use the following formula criteria and weightings for distribution of grant moneys: 0 to 5 population at 185 percent poverty (45 percent); 0 to 5 population (35 percent) and base (20 percent). This provision is not applicable to those designated community empowerment areas that were awarded a school ready children grant prior to the fiscal year beginning July 1, 2000, and those areas shall be held harmless from the provisions implemented by the Iowa empowerment board pursuant to this paragraph.

ITEM 9. Amend subrule 1.10(7) as follows:

1.10(7) Designation of a public agency to be the fiscal agent for the community empowerment area. of this state, as defined in Iowa Code section 28E.2, a community action agency, as defined in Iowa Code section 216A.91, or a nonprofit corporation, to be the fiscal agent for grant moneys and for other moneys administered by the community board.

ITEM 10. Adopt new subrule 1.10(9) as followsand renumber subrules 1.10(9) to 1.10(11) as 1.10(10) to 1.10(12):

1.10(9) Identification of core functions for home visitation, parent support and preschool services provided under a school ready children grant.

ITEM 11. Amend subrule 1.12(1) as follows:

1.12(1) A majority of the members of a community empowerment area board shall be private citizens and elected officials. At least one member shall be a service consumer or the parent of a service consumer. Additional membership shall include a community volunteer and at least one decision–making representative from each of the following agencies: education, public health and human services. Community empowerment area functions shall be performed under the authority of a community empowerment board. A majority of the members of a community board shall be elected officials and members of the public who are not employed by a provider of services to or for the community board. At least one member shall be a service consumer or the parent of a service consumer. Terms of office of community board members shall not be more than three years and the terms shall be staggered. The balance of the members may be individuals who are employees of or who receive compensation from any of the following:

ITEM 12. Adopt new subrule 1.12(3) as follows:

1.12(3) A community empowerment area board is a unit of local government for purposes of Iowa Code chapter 670, relating to tort liability of governmental subdivisions.

ITEM 13. Amend subrule 1.13(2) as follows:

1.13(2) The initial membership of the community board as identified in 1998 Iowa Acts, Senate File 2406, section 14, subsection 1, shall be established in the proposal submitted to the board. One–third of the members shall serve for a one–year term, one–third for a two–year term, and one–third for a three–year term. A majority of the members of a community board shall be elected officials and members of the public who are not employed by a provider of services to or for the community board. Terms of office of community board members shall be not more than three years and the terms shall be staggered.

ITEM 14. Amend subrule 1.16(1), paragraph “a,” as follows:

a. Designate a public agency of this state, as defined in Iowa Code section 28E.2, a community action agency, as defined in Iowa Code section 216A.91, or a nonprofit corporation to be the fiscal agent for grant moneys and for other moneys administered by the community board.

ITEM 15. Adopt new subrules 1.16(3) and 1.16(4) as follows:

1.16(3) A decategorization governance board shall coordinate the board’s planning and budgeting activities with the community empowerment area board for the community empowerment area within which the decategorization county is located.

1.16(4) Over time, a plan must be developed to incorporate the decategorization board into the community empowerment area board.

ITEM 16. Amend rule 349—1.19(28) as follows:

349—1.19(28) Grant components. The departments of education, human services, and public health shall jointly develop and promote an Iowa empowerment grant program which shall provide for all of the following components.

1.19(1) 1.19(2) Core indicators. Core indicators of performance that will measure the effectiveness of the programs and services as outlined in the Iowa empowerment grant plan to support families and children in advancing all aspects of their health and development. At a minimum, community empowerment boards shall develop core indicators that address the following and that will be used to measure progress with respect to the current status and the desired status:

1.19(2) 1.19(3) Additional indicators. Community empowerment areas may expand upon the indicators identified above. Technical assistance will be provided to community empowerment areas in developing the empowerment area–specific indicators to be used to meet the local goals.

ITEM 17. Adopt new subrules 1.23(5) and 1.23(6) as follows:

1.23(5) Beginning July 1, 1999, up to 3 percent, not to exceed $60,000, of the school ready children grant moneys may be used by the community board for administrative costs and other implementation expenses.

1.23(6) For the fiscal year beginning July 1, 1999, applicant community empowerment areas are encouraged to continue to meet the current practice of committing approximately 60 percent of any approved school ready children grant funding to home visitation and parent support services for families with newborns and infants, based upon local community needs assessments.

ITEM 18. Amend rule 349—1.25(28) as follows:

349—1.25(28) Annual report. The community board shall submit an annual report on the effectiveness of the program in addressing school readiness and children’s health and safety needs to the Iowa empowerment board and to the local governing bodies. The annual report shall indicate the effectiveness of the community board in achieving state and locally determined core indicators of performance. As a conditionof receiving funding, each local empowerment board shallreport to the state empowerment board progress on each of the following state indicators approved by the state board:

ITEM 19. Amend subrule 1.26(1) as follows:

1.26(1) A school ready children grant shall be awarded to a community board for a three–year period, with annual payments made to the community board. School ready children grant account funds shall be distributed through a grant application process. Grant awards shall be contingent upon the availability of funds.

ITEM 20. Amend rule 349—1.28(28), introductory paragraph, as follows:

349—1.28(28) Eligible for other funds. Community empowerment areas approved to receive Iowa empowerment funds to support a school ready children program are also eligible to receive moneys to support an early childhood program. Designated community empowerment areas are eligible to receive school ready children grant funding and early childhood program grants.

ITEM 21. Amend rule 349—1.29(28) as follows:

349—1.29(28) Application period. The initial school ready children grant application period begins July 1, 1998. The school ready children grant application period begins July 1 of the current fiscal year. The deadline for applications for school ready grants shall be on the last Friday of August, with grant awards to be made on the first Monday of October. Subsequent grant periods will be based upon availability of funding.

ITEM 22. Amend rule 349—1.31(28) as follows:

349—1.31(28) Iowa empowerment fund. An Iowa empowerment fund is created in the state treasury as specified in 1998 Iowa Acts, Senate File 2406, section 9 Iowa Code Supplement section 28.9. A school ready children program account is created in the Iowa empowerment fund under the authority of the Iowa empowerment board to be administered by the director of the department of education. Moneys credited to the account shall be distributed by the department of education to designated community empowerment areas pursuant to criteria established by the Iowa board in accordance with law. An early childhood programs grant account is created in the Iowa empowerment fund and shall be distributed by the department of human services in the form of grants to community empowerment areas pursuant to criteria established by the Iowa board in accordance with law. The criteria shall include but are not limited to a requirement that a community empowerment area must be designated by the Iowa board in accordance with Iowa Code Supplement section 28.5 in order to be eligible to receive an early childhood programs grant.

Pursuant to the authority of Iowa Code section 542B.6, the Engineering and Land Surveying Examining Board hereby gives Notice of Intended Action to amend Chapter 1, “Administration,” Iowa Administrative Code.

These amendments revise the requirements for licensure by comity for engineers who are licensed in another jurisdiction and are seeking licensure in Iowa.

Waiver of these rules can be sought pursuant to 193C— Chapter 7, “Waivers or Variances from Rules.”

Any interested person may make written or oral suggestions or comments on these proposed amendments on or before December 19, 2000. Comments should be directed to Gleean Coates, Executive Officer, Engineering and Land Surveying Examining Board, 1918 SE Hulsizer Road, Ankeny, Iowa 50021, or by telephone (515)281-7360.

These amendments are intended to implement Iowa Code section 542B.20.

The following amendments are proposed:

ITEM 1. Amend subrule 1.4(5) as follows:

1.4(5) Licensure by comity. Any person who has been licensed as a professional engineer in a foreign jurisdiction may be considered for licensure in Iowa without the need for further examination if the original license based on approved examination is in active status. Applications for licensure by comity will be evaluated on the following basis:

a. The applicant’s foreign licensure must have been granted only after satisfaction of requirements equal to or more stringent than those which would be required by Iowa Code section 542B.14, if the applicant’s original licensure was sought in Iowa; and

b. The applicant’s present record of education, references, practical experience, and successful completion of approved examinations currently satisfies the substantive requirements of Iowa Code section 542B.14.

c. A comity applicant for licensure in land surveying shall comply with subrule 1.4(5), paragraphs “a” and “b, ” above; be interviewed by the land surveyor member(s) of the board; complete successfully the Iowa State Specific Examination; and complete successfully other examinations as determined by the board.

d. In lieu of the detailed personal history requested on an application for licensing, an applicant for licensure by comity may submit educational and professional records as verified by that person’s NCEES Council Record.

e. A temporary permit to practice engineering in the state may be granted to a comity applicant upon approval of a professional engineer member of the board. The temporary permit shall expire at the next regularly scheduled meeting of the board. Temporary permits shall be granted only to applicants who meet all requirements and who are expected to qualify for approval by the full board at the next meeting.

ITEM 2. Renumber subrule 1.4(6) as 1.4(7) and adopt new subrule 1.4(6) as follows:

1.4(6) Comity licensure for applicants who completed the professional examination before completing the experience requirement.

a. Purpose. Licensure requirements for professional engineers are generally consistent across jurisdictions, but occasionally the board receives an application for comity licensure from an applicant who was allowed to complete the professional engineering examination before completing the practical engineering experience required of Iowa applicants. This subrule is intended to provide a mechanism for comity applicants faced with this situation to become licensed in Iowa without retaking the professional examination.

b. Licensure conditions. If an applicant for comity licensure as a professional engineer satisfies all four of the licensing requirements set forth in Iowa Code section 542B.14(1) (i.e., education, fundamentals examination, four or more years of practical engineering experience of a character satisfactory to the board, and professional examination) at the time of application, but the applicant was permitted by the jurisdiction of initial licensure to complete the professional examination with a shortfall of the practical experience required of professional examination candidates in Iowa, the board may approve the applicant for comity licensure without further written examination pursuant to Iowa Code section 542B.20, if the applicant has had, since initial licensure, additional practical engineering experience of a character satisfactory to the board of at least twice the shortfall. Under no circumstances will the amount of additional experience required be less than six months.

Pursuant to the authority of Iowa Code section 234.6, the Department of Human Services proposes to amend Chapter 7, “Appeals and Hearings,” Chapter 11, “Overpayments,” Chapter 93, “PROMISE JOBS Program,” and Chapter 170, “Child Care Services,” appearing in the Iowa Administrative Code.

These proposed amendments implement recoupment procedures for the child care assistance program, including child care payments received through the PROMISE JOBS program.

Under these amendments, all child care assistance overpayments resulting from client or provider errors shall be subject to recoupment. Agency errors shall not be recouped from clients or providers.

The Department of Inspections and Appeals shall notify all clients and providers when the Department of Human Services determines that an overpayment exists. Notification shall include the amount, date and reason for the overpayment. The county office shall provide additional information regarding the computation of the overpayment upon the client’s or provider’s request. The client or provider may appeal the computation of the overpayment and any action to recover the overpayment.

Upon notification of the overpayment, the client or provider may choose to make a lump sum payment or make periodic installment payments when an agreement to do this is made with the Department of Inspections and Appeals. Failure by the client or provider to negotiate a repayment agreement or to make payment as agreed shall result in the withholding of all state payments to the client or provider, including income tax returns and state checks for wages or services rendered.

These amendments do not provide for waivers to the recoupment process because individuals may request a waiver of the recoupment provisions under the Department’s general rule on exceptions at rule 441—1.8(217).

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 December 20, 2000.

Oral presentations may be made by persons appearing at the following meetings. Written comments will also be accepted at these times.

Cedar Rapids—December 21, 2000 10 a.m.

Cedar Rapids Regional Office

Iowa Building – Suite 600

Seventh Floor Conference Room

411 Third St. S.E.

Cedar Rapids, Iowa 52401

Council Bluffs—December 21, 2000 8 a.m.

CPI Conference Room

Council Bluffs Regional Office

417 E. Kanesville Boulevard

Council Bluffs, Iowa 51501

Davenport—December 20, 2000 10 a.m.

Davenport Area Office

Bicentennial Building—Fifth Floor

Large Conference Room

428 Western

Davenport, Iowa 52801

Des Moines—December 20, 2000 10 a.m.

Des Moines Regional Office

City View Plaza

Conference Room 104

1200 University

Des Moines, Iowa 50314

Mason City—December 20, 2000 10 a.m.

Mason City Area Office

Mohawk Square, Liberty Room

22 North Georgia Avenue

Mason City, Iowa 50401

Ottumwa—December 20, 2000 1 p.m.

Ottumwa Area Office

Conference Room 3

120 East Main

Ottumwa, Iowa 52501

Sioux City—December 20, 2000 1:30 p.m.

Sioux City Regional Office

Fifth Floor

520 Nebraska St.

Sioux City, Iowa 51101

Waterloo—December 20, 2000 3 p.m.

Waterloo Regional Office

Pinecrest Office Building

Conference Room 420

1407 Independence Avenue

Waterloo, Iowa 50703

Any persons who intend to attend a public hearing and have special requirements such as hearing or vision impairments should contact the Office of Policy Analysis at (515)281–8440 and advise of special needs.

These amendments are intended to implement Iowa Code sections 234.6(6) and 239B.17 to 239B.22.

The following amendments are proposed.

ITEM 1. Amend rule 441—7.1(17A), definition of “aggrieved person,” by adopting the following new numbered paragraph “10.”

10. Who is contesting a child care provider or child care assistance client claim, as provided in rule 441—170.9(234).

ITEM 2. Amend rule 441—7.5(17A) by adopting the following new subrule:

7.5(9) Appeals of child care assistance benefit overissuances or overpayments. Subject to the time limitations described in subrule 7.5(4), a person’s right to appeal the existence, computation, and amount of a child care assistance benefit overissuance or overpayment begins when the person receives the first Form 470–3627, Demand Letter for Child Care Assistance Provider Error Overissuance, or Form 470–3628, Demand Letter for Child Care Assistance Client Error Benefit Overissuance, from the department of human services, informing the person of the child care assistance overpayment. A hearing shall not be held if an appeal is filed in response to a second or subsequent Demand Letter for Child Care Assistance Provider Error Overissuance or Demand Letter for Child Care Assistance Client Error Benefit Overissuance.

ITEM 3. Amend rule 441—11.1(217,421), definitions of “debtor,” “public assistance,” and “repayment agreement,” as follows:

“Debtor” shall mean a current or former recipient of public assistance (usually the head of the household) that has been determined by the department to be responsible for the repayment of a particular overpayment. For food stamps, “debtor” shall include all adult members of the food stamp household participating at the time the overpayment occurred. For child care assistance, “debtor” may include the current or former provider or current or former recipient of child care assistance.

“Public assistance” shall mean family investment program, food stamps, medical assistance, state supplemental assistance, PROMISE JOBS, transitional child care, child care assistance, and refugee cash assistance.

“Repayment agreement” shall mean an agreement entered into voluntarily between the department and the debtor for the repayment of overpayments.

Agreements shall be made on Form 470–0495, Repayment Contract, Form 470–0338, Demand Letter for Food Stamp Agency Error Overissuance, Form 470–3486, Demand Letter for Food Stamp Intentional Program Violation Overissuance, Form 470–3487, Demand Letter for Food Stamp Inadvertent Household Error Overissuance, Form 470–2616, Demand Letter for FIP/RCA Agency Error Overissuance, Form 470–3489, Demand Letter for FIP/RCA Intentional Program Violation Overissuance, Form 470–3490, Demand Letter for FIP/RCA Client Error Overissuance, and Form 470–2891, Demand Letter for Medicaid or State Supplementary Assistance Overpayment, Form 470–3627, Demand Letter for Child Care Assistance Provider Error Overissuance, or Form 470–3628, Demand Letter for Child Care Assistance Client Error Benefit Overissuance.

ITEM 4. Amend rule 441—93.151(239B), introductory paragraphs, as follows:

441—93.151(239B) Recovery of PROMISE JOBS expense allowances. When a participant or a provider receives an expense allowance for transportation or other supportive expenses which are greater than allowed under these rules or a duplicate payment of these expense allowances, an overpayment is considered to have occurred and recovery is required. There are two categories of PROMISE JOBS expense allowances subject to recovery: (1) transportation and (2) other supportive expense allowances excluding child care. The PROMISE JOBS worker shall notify the department of inspections and appeals (DIA) to record the overpayment in the overpayment recovery system at the same time that the client or provider is notified of the overpayment. The outstanding balance of any overpayments which occurred prior to July 1, 1990, shall be treated in the same manner. A PROMISE JOBS overpayment shall be recovered through repayment in part or in full, or through offsetting against future payments in the same category. Underpayments and overpayments may be offset against each other in correcting incorrect payments in the same category. Repayments received by the PROMISE JOBS unit and information about recoveries made through offsetting shall be transmitted to the Department of Human Services, Cashier’s Office.

Overpayments of PROMISE JOBS child care issued for months prior to July 1999 shall be subject to recovery rules of the PROMISE JOBS program. Overpayments of child care assistance issued for July 1999 and any month thereafter are subject to recovery rules of the child care assistance program set forth in rule 441—170.9(234).

ITEM 5. Amend rule 441—170.1(234) by adopting the following new definitions in alphabetical order:

“Agency error” means any error that is not a client or provider error.

“Client” means a current or former recipient of the child care assistance program.

“Client error” means and may result from:

• False or misleading statements, oral or written, regarding the client’s income, resources, or other circumstances which may affect eligibility or the amount of assistance received;

• Failure to timely report changes in income, resources, or other circumstances which may affect eligibility or the amount of assistance received;

• Failure to timely report the receipt of and, if applicable, to refund assistance in excess of the amount shown on the most recent notice of decision;

• Failure to comply with the need for service requirements.

“Overpayment” means any benefit or payment received in an amount greater than the amount the client or provider is entitled to receive.

“Parent” means the parent or the person who serves in the capacity of the parent of the child receiving child care assistance services.

“Provider” means the provider of the child care assistance.

“Provider error” means and may result from:

• Presentation for payment of any false or fraudulent claim for services or merchandise;

• Submittal of false information for the purpose of obtaining greater compensation than that to which the provider is legally entitled;

• Charging the department an amount for services rendered over and above what is charged private pay clients for the same services.

“Recoupment” means the repayment of an overpayment by a payment from the client or provider or both.

ITEM 6. Amend 441—Chapter 170 by adopting the following new rule.

441—170.9(234) Child care assistance overpayments. All client or provider child care assistance overpayments shall be subject to recoupment.

170.9(1) Notification and appeals. All clients or providers shall be notified by the department of inspections and appeals, as described at 441—subrule 7.5(9), when it is determined that an overpayment exists. Notification shall include the amount, date and reason for the overpayment. The county office shall provide additional information regarding the computation of the overpayment upon the client’s or provider’s request. The client or provider may appeal the computation of the overpayment and any action to recover the overpayment in accordance with 441—subrule 7.5(9).

170.9(2) Determination of overpayments. All overpayments due to client or provider error or due to benefits or payments issued pending an appeal decision shall be recouped. Overpayments shall be computed as if the information had been acted upon timely.

170.9(3) Benefits or payments issued pending appeal decision. Recoupment of overpayments resulting from benefits or payments issued pending a decision on an appeal hearing shall not occur until after a final appeal decision is issued affirming the department.

170.9(4) Failure to cooperate. Failure by the client to cooperate in the investigation of alleged overpayments shall result in ineligibility for the months in question and the overpayment shall be the total amount of assistance received during those months. Failure by the provider to cooperate in the investigation of alleged overpayments shall result in payments being recouped for the months in question.

170.9(5) Source of recoupment. The client or provider may choose to make a lump sum payment or make periodic installment payments as agreed to on Form 470–3627 or Form 470–3628. Failure to negotiate an approved payment agreement may result in further collection action as outlined in 441—Chapter 11.

170.9(6) Procedures for recoupment.

a. Referral. When the county office determines that an overpayment exists, the case shall be referred to the department of inspections and appeals for investigation, recoupment, or referral for possible prosecution.

b. When financial circumstances change, the department of inspections and appeals has the authority to revise the recoupment plan.

c. Recoupment for client error overpayments shall be made from the parent, or the person who serves in the capacity of the parent of the child, who received child care assistance at the time the overpayment occurred. When both parents were in the home at the time the overpayment occurred, both parents are equally responsible for repayment of the overpayment.

170.9(7) Suspension and waiver. Recoupment will be suspended on nonfraud overpayments when the amount of the overpayment is less than $35. Recoupment will be waived on nonfraud overpayments of less than $35 which have been held in suspense for three years.

Pursuant to the authority of Iowa Code section 249A.4,the Department of Human Services hereby terminates the rule making under the provisions of Iowa Code section 17A.4(1)“b” amending Chapter 52, “Payment,” Iowa Administrative Code.

Notice of Intended Action regarding subrule 52.1(3) was published in the Iowa Administrative Bulletin on November 1, 2000, as ARC 0251B.

The substance of ARC 0251B was also Adopted and Filed Emergency and published in the Iowa Administrative Bulletin on November 1, 2000, as ARC 0231B. The purpose of ARC 0251B was to solicit comment on that submission, the subject matter of which was incorporated by reference.

The Adopted and Filed Emergency amendment increased the maximum State Supplementary Assistance (SSA) residential care facility (RCF) reimbursement rate for the month of November 2000 only. ARC 0305B herein removes the one–month change under regular rule making effective February 1, 2001. ARC 0251B is now superfluous and is hereby terminated.

Pursuant to the authority of Iowa Code section 249A.4, the Department of Human Services proposes to amend Chapter 83, “Medicaid Waiver Services,” appearing in the Iowa Administrative Code.

These amendments eliminate the 30–day institutional stay requirement for the Home– and Community–Based (HCBS) Physical Disability waiver program and provide that all waiver slots are available on a first–come, first–served basis. The subrule regarding appeal to the county is rescinded because the county has no responsibility for management of or payment for these cases.

Under current policy, a person must be a resident of a medical institution and have been a resident for at least 30 consecutive days at the time of initial application for the physical disability waiver. The Legislature did provide an exception to that policy, allowing up to ten persons, two per Departmental region, who are in need of the skilled nursing facility or intermediate nursing and who are not residents of a medical institution at the time of application, to receive physical disability waiver services.

The Seventy–eighth General Assembly, in 2000 Iowa Acts, chapter 1228, section 8, subsection 6, did direct the Department to aggressively pursue options to expand the waiver to the limit of the number approved in the waiver by the Secretary of the United States Department of Health and Human Services (currently 120 persons). The General Assembly directed the openings to be available on a first–come, first–served basis.

At the current time less than one–fourth of the available slots are being accessed.

These amendments do not provide for waivers in specified situations because these changes are required by legislation and the changes confer a benefit on persons needing the services offered by the waiver who have not been institutionalized.

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 December 20, 2000.

These amendments are intended to implement Iowa Code section 249A.4.

The following amendments are proposed.

ITEM 1. Amend rule 441—83.102(249A) as follows:

Amend subrule 83.102(1) by rescinding and reserving paragraph “g.”

Amend subrule 83.102(3) as follows:

83.102(3) Slots. The total number of persons receiving HCBS physical disability waiver services in the state shall be limited to the number provided in the waiver approved by the Secretary of the U.S. Department of Health and Human Services. Of these, ten slots during any waiver year (two in each departmental region) shall be reserved for persons who were not residents of a medical institution at the time of initial application for the physical disability waiver as allowed by the exception under paragraph 83.102(1)“g.” These slots shall be available on a first–come, first–served basis.

Amend subrule 83.102(5), paragraph “b,” as follows:

b. On the third day after the receipt of the completed Form 470–0442 or 470–0660, if no slot is available, the division of medical services shall enter persons on the HCBS physical disabilities waiver state waiting list for institutionalized persons or on a regional waiting list for the slots reserved for persons who are not institutionalized according to the following:

(1) Persons not currently eligible for Medicaid shall be entered on the basis of the date a completed Form 470–0442, Application for Medical Assistance or State Supplementary Assistance, is submitted on or after April 1, 1999, and date–stamped in the county department office. Consumers currently eligible for Medicaid shall be added on the basis of the date the consumer requests HCBS physical disability program services as documented by the date of the consumer’s signature on Form 470–0660 submitted on or after April 1, 1999. In the event that more than one application is received on the same day, persons shall be entered on the waiting list on the basis of the day of the month of their birthday, the lowest number being first on the list. Any subsequent tie shall be decided by the month of birth, January being month one and the lowest number.

(2) Persons who do not fall within the available slots shall have their applications rejected but their names shall be maintained on the state waiting list for institutionalized persons or on a regional waiting list for the slots reserved for persons who are not institutionalized. As slots become available, persons shall be selected from the waiting lists list to maintain the number of approved persons on the program based on their order on the waiting lists list.

Amend subrule 83.102(7) as follows:

83.102(7) HCBS physical disability waiver waiting lists list. When services are denied because the statewide limit for institutionalized persons on the number of slots is reached, a notice of decision denying service based on the limit and stating that the person’s name shall be put on a statewide waiting list shall be sent to the person by the department.

ITEM 2. Rescind and reserve subrule 83.109(1).

Pursuant to the authority of 2000 Iowa Acts, chapter 1141, the Information Technology Department hereby gives Notice of Intended Action to adopt Chapter 6, “Contested Cases,” Iowa Administrative Code.

This proposed chapter applies to contested case proceedings conducted by the Information Technology Council. It allows for any person claiming an entitlement to a contested case proceeding to file for such a proceeding with the Information Technology Council.

The chapter details with specificity what procedures are to be followed by both the Council and any involved parties regarding contested case proceedings conducted by the Information Technology Council.

The chapter sets forth circumstances in which persons involved in a contested case proceeding shall withdraw from participation in the making of any proposed or final decisions. Also, the chapter allows for the consolidation or severance of contested case proceedings under particular circumstances.

The chapter includes policies regarding prohibited communications in a contested case proceeding, and it sets forth which communications are subject to such prohibition. In addition, the chapter creates a procedure regarding Emergency Adjudicative proceedings by which the Information Technology Department may take necessary emergency action to prevent or avoid immediate danger to the public health, safety, or welfare.

Any interested person may make written or electronic suggestions or comments on the proposed chapter on or before December 19, 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 December 19, 2000, from 9 to 10 a.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 andto 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, chapter 1141, and Iowa Code chapter 17A.

The following new chapter is proposed.

CHAPTER 6

CONTESTED CASES

471—6.1(17A) Scope and applicability. This chapter applies to contested case proceedings conducted by the information technology council.

471—6.2(17A) Definitions. Except where otherwise specifically defined by law:

“Contested case” means a proceeding defined by Iowa Code section 17A.2(5) and includes any matter defined as a no factual dispute contested case under Iowa Code section 17A.10A.

“Issuance” means the date of mailing of a decision or order or date of delivery if service is by other means unless another date is specified in the order.

“Party” means each person or agency named or admitted as a party or properly seeking and entitled as of right to be admitted as a party.

“Presiding officer” means the information technology council, one or more members of the council, or an administrative law judge assigned to the case.

“Proposed decision” means the presiding officer’s recommended findings of fact, conclusions of law, decision, andorder in a contested case in which the majority of the information technology council did not preside.

6.3(1) Time shall be computed as provided in Iowa Code subsection 4.1(34).

6.3(2) For good cause, the presiding officer may extend or shorten the time to take any action, except as precluded by statute or by rule. Except for good cause stated in the record, before extending or shortening the time to take any action, the presiding officer shall afford all parties an opportunity to be heard or to file written arguments.

471—6.4(17A) Requests for contested case proceeding. Any person claiming an entitlement to a contested case proceeding shall file a written request for such a proceeding within the time specified by the particular rules or statutes governing the subject matter or, in the absence of such law, the time specified in the agency action in question.

The request for a contested case proceeding should state the name and address of the requester, identify the specific agency action which is disputed, and where the requesteris represented by a lawyer identify the provisions of law or precedent requiring or authorizing the holding of a contested case proceeding in the particular circumstances involved, and include a short and plain statement of the issues of material fact in dispute.

6.5(1) Delivery. Delivery of the notice of hearing constitutes the commencement of the contested case proceeding. Delivery may be executed by:

a. Personal service as provided in the Iowa Rules of Civil Procedure; or

b. Certified mail, return receipt requested; or

c. First–class mail; or

d. Publication, as provided in the Iowa Rules of Civil Procedure.

6.5(2) Contents. The notice of hearing shall contain the following information:

a. A statement of the time, place, and nature of the hearing;

b. A statement of the legal authority and jurisdiction under which the hearing is to be held;

c. A reference to the particular sections of the statutes and rules involved;

d. A short and plain statement of the matters asserted. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, upon application, a more definite and detailed statement shall be furnished;

e. Identification of all parties including the name, address and telephone number of the person who will act as an advocate for the agency or the state and of parties’ counsel where known;

f. Reference to the procedural rules governing conduct of the contested case proceeding;

g. Reference to the procedural rules governing informal settlement;

h. Identification of the presiding officer, if known. If not known, a description of who will serve as presiding officer (e.g., the information technology council, members of the council, administrative law judge); and

i. Notification of the time period in which a party may request, pursuant to Iowa Code section 17A.11 and rule 6.6(17A), that the presiding officer be an administrative law judge.

6.6(1) Any party who wishes to request that the presiding officer assigned to render a proposed decision be an administrative law judge employed by the department of inspections and appeals must file a written request within 20 days after service of a notice of hearing which identifies or describes the presiding officer as the agency head or members of the agency.

6.6(2) The agency may deny the request only upon a finding that one or more of the following apply:

a. Neither the agency nor any officer of the agency under whose authority the contested case is to take place is a named party to the proceeding or a real party in interest to that proceeding.

b. There is a compelling need to expedite issuance of a final decision in order to protect the public health, safety, or welfare.

c. An administrative law judge with the qualifications identified in subrule 6.6(4) is unavailable to hear the case within a reasonable time.

d. The case involves significant policy issues of first impression that are inextricably intertwined with the factual issues presented.

e. The demeanor of the witnesses is likely to be dispositive in resolving the disputed factual issues.

f. Funds are unavailable to pay the costs of an administrative law judge and an interagency appeal.

g. The request was not timely filed.

h. The request is not consistent with a specified statute.

6.6(3) The agency shall issue a written ruling specifying the grounds for its decision within 20 days after a request for an administrative law judge is filed. If the ruling is contingent upon the availability of an administrative law judge with the qualifications identified in subrule 6.6(4), the parties shall be notified at least 10 days prior to the hearing if a qualified administrative law judge will not be available.

6.6(4) An administrative law judge assigned to act as presiding officer in any information technology department case shall have the following technical expertise unless waived by the information technology council: knowledge of contract law.

6.6(5) Except as provided otherwise by another provision of law, all rulings by an administrative law judge acting as presiding officer are subject to appeal to the council. A party must seek any available intra–agency appeal in order to exhaust adequate administrative remedies.

6.6(6) Unless otherwise provided by law, agency head and members of multimembered agency heads, when reviewing a proposed decision upon intra–agency appeal, shall have the powers of and shall comply with the provisions of this chapter which apply to presiding officers.

471—6.7(17A) Waiver of procedures. Unless otherwise precluded by law, the parties in a contested case proceeding may waive any provision of this chapter. However, the agency in its discretion may refuse to give effect to such a waiver when it deems the waiver to be inconsistent with the public interest.

471—6.8(17A) Telephone or video proceedings. The presiding officer may resolve preliminary procedural motions by telephone conference in which all parties have an opportunity to participate. Other telephone proceedings or interactive video proceedings may be held with the consent of all parties. The presiding officer will determine the location of the parties and witnesses for telephone or video hearings. The convenience of the witnesses or parties, as well as the nature of the case, will be considered when location is chosen. The cost of the telephone hearing or an interactive video hearing may be assessed equally to each party.

6.9(1) A presiding officer or other person shall withdraw from participation in the making of any proposed or final decision in a contested case if that person:

a. Has a personal bias or prejudice concerning a party or a representative of a party;

b. Has personally investigated, prosecuted or advocated in connection with that case, the specific controversy underlying that case, another pending factually related contested case, or a pending factually related controversy that may culminate in a contested case involving the same parties;

c. Is subject to the authority, direction or discretion of any person who has personally investigated, prosecuted or advocated in connection with that contested case, the specific controversy underlying that contested case, or a pending factually related contested case or controversy involving the same parties;

d. Has acted as counsel to any person who is a private party to that proceeding within the past two years;

e. Has a personal financial interest in the outcome of the case or any other significant personal interest that could be substantially affected by the outcome of the case;

f. Has a spouse or relative within the third degree of relationship that: (1) is a party to the case, or an officer, director or trustee of a party; (2) is a lawyer in the case; (3) is known to have an interest that could be substantially affected by the outcome of the case; or (4) is likely to be a material witness in the case; or

g. Has any other legally sufficient cause to withdraw from participation in the decision making in that case.

6.9(2) The term “personally investigated” means taking affirmative steps to interview witnesses directly or to obtain documents or other information directly. The term “personally investigated” does not include general direction and supervision of assigned investigators, unsolicited receipt of information which is relayed to assigned investigators, review of another person’s investigative work product in the course of determining whether there is probable cause to initiate a proceeding, or exposure to factual information while performing other agency functions, including fact gathering for purposes other than investigation of the matter which culminates in a contested case. Factual information relevant to the merits of a contested case received by a person who later serves as presiding officer in that case shall be disclosed if required by Iowa Code section 17A.17(3) and subrules 6.9(3) and 6.23(9).

6.9(3) In a situation where a presiding officer or other person knows of information which might reasonably be deemed to be a basis for disqualification and decides voluntary withdrawal is unnecessary, that person shall submit the relevant information for the record by affidavit and shall provide for the record a statement of the reasons for the determination that withdrawal is unnecessary.

6.9(4) If a party asserts disqualification on any appropriate ground, including those listed in subrule 6.9(1), the party shall file a motion supported by an affidavit pursuant to Iowa Code section 17A.17(7). The motion must be filed as soon as practicable after the reason alleged in the motion becomes known to the party.

If, during the course of the hearing, a party first becomes aware of evidence of bias or other grounds for disqualification, the party may move for disqualification but must es–tablish the grounds by the introduction of evidence into the record.

If the presiding officer determines that disqualification is appropriate, the presiding officer or other person shall withdraw. If the presiding officer determines that withdrawal is not required, the presiding officer shall enter an order to that effect. A party asserting disqualification may seek an interlocutory appeal under rule 6.25(17A) and seek a stay under rule 6.30(17A).

6.10(1) Consolidation. The presiding officer may consolidate any or all matters at issue in two or more contested case proceedings where: (a) the matters at issue involve common parties or common questions of fact or law; (b) consolidation would expedite and simplify consideration of the issues involved; and (c) consolidation would not adversely affect the rights of any of the parties to those proceedings.

6.10(2) Severance. The presiding officer may, for good cause shown, order any contested case proceedings or portions thereof severed.

471—6.11(17A) Pleadings.

6.11(1) Pleadings may be required by rule, by the notice of hearing, or by order of the presiding officer.

6.11(2) Petition.

a. Any petition required in a contested case proceeding shall be filed within 20 days of delivery of the notice of hearing or subsequent order of the presiding officer, unless otherwise ordered.

b. A petition shall state in separately numbered paragraphs the following:

(1) The persons or entities on whose behalf the petition is filed;

(2) The particular provisions of statutes and rules involved;

(3) The relief demanded and the facts and law relied upon for such relief; and

(4) The name, address and telephone number of the petitioner and the petitioner’s attorney, if any.

6.11(3) Answer. An answer shall be filed within 20 days of service of the petition unless otherwise ordered. A party may move to dismiss or apply for a more definite and detailed statement when appropriate.

An answer shall show on whose behalf it is filed and specifically admit, deny, or otherwise answer all material allegations of the pleading to which it responds. It shall state any facts deemed to show an affirmative defense and contain as many additional defenses as the pleader may claim.

An answer shall state the name, address and telephone number of the person filing the answer, the person or entity on whose behalf it is filed, and the attorney representing that person, if any.

Any allegation in the petition not denied in the answer is considered admitted. The presiding officer may refuse to consider any defense not raised in the answer which could have been raised on the basis of facts known when the answer was filed if any party would be prejudiced.

6.11(4) Amendment. Any notice of hearing, petition, or other charging document may be amended before a responsive pleading has been filed. Amendments to pleadings after a responsive pleading has been filed and to an answer may be allowed with the consent of the other parties or in the discretion of the presiding officer who may impose terms or grant a continuance.

6.12(1) When service required. Except where otherwise provided by law, every pleading, motion, document, or other paper filed in a contested case proceeding and every paper relating to discovery in such a proceeding shall be served upon each of the parties of record to the proceeding, including the person designated as advocate or prosecutor for the state or the agency, simultaneously with their filing. Except for the original notice of hearing and an application for rehearing as provided in Iowa Code section 17A.16(2), the party filing a document is responsible for service on all parties.

6.12(2) Service—how made. Service upon a party represented by an attorney shall be made upon the attorney unless otherwise ordered. Service is made by delivery or by mailing a copy to the person’s last–known address. Service by mail is complete upon mailing, except where otherwise specifically provided by statute, rule, or order.

6.12(3) Filing—when required. After the notice of hearing, all pleadings, motions, documents or other papers in a contested case proceeding shall be filed with the Information Technology Department, Hoover State Office Building, Level B, Des Moines, Iowa 50319. All pleadings, motions, documents or other papers that are required to be served upon a party shall be filed simultaneously with the information technology department.

6.12(4) Filing—when made. Except where otherwise provided by law, a document is deemed filed at the time it is delivered to the Information Technology Department, Hoover State Office Building, Level B, Des Moines, Iowa 50319, delivered to an established courier service for immediate delivery to that office, or mailed by first–class mail or state interoffice mail to that office, so long as there is proof of mailing.

6.12(5) Proof of mailing. Proof of mailing includes either: a legible United States Postal Service postmark on the envelope, a certificate of service, a notarized affidavit, or a certification in substantial conformity with the following form:

I certify under penalty of perjury and pursuant to the laws of Iowa that, on (date of mailing), I mailed copies of (describe document) addressed to the Information Technology Department, Hoover State Office Building, Level B, Des Moines, Iowa 50319 and to the names and addresses of the parties listed below by depositing the same in (a United States post office mailbox with correct postage properly affixed or state interoffice mail).

(Date) (Signature)

6.13(1) Discovery procedures applicable in civil actions are applicable in contested cases. Unless lengthened or shortened by these rules or by order of the presiding officer, time periods for compliance with discovery shall be as provided in the Iowa Rules of Civil Procedure.

6.13(2) Any motion relating to discovery shall allege that the moving party has previously made a good–faith attempt to resolve the discovery issues involved with the opposing party. Motions in regard to discovery shall be ruled upon by the presiding officer. Opposing parties shall be afforded the opportunity to respond within ten days of the filing of the motion unless the time is shortened as provided in subrule 6.12(1). The presiding officer may rule on the basis of the written motion and any response, or may order argument on the motion.

6.13(3) Evidence obtained in discovery may be used in the contested case proceeding if that evidence would otherwise be admissible in that proceeding.

6.14(1) Issuance.

a. An agency subpoena shall be issued to a party on request. Such a request must be in writing. In the absence of good cause for permitting later action, a request for a subpoena must be received at least three days before the scheduled hearing. The request shall include the name, address, and telephone number of the requesting party.

b. Except to the extent otherwise provided by law, parties are responsible for service of their own subpoenas and payment of witness fees and mileage expenses.

6.14(2) Motion to quash or modify. The presiding officer may quash or modify a subpoena for a lawful reason upon motion in accordance with the Iowa Rules of Civil Procedure. A motion to quash or modify a subpoena shall be set for argument promptly.

6.15(1) No technical form for motions is required. However, prehearing motions must be in writing, state the grounds for relief, and state the relief sought.

6.15(2) Any party may file a written response to a motion within ten days after the motion is served, unless the time period is extended or shortened by rules of the agency or the presiding officer. The presiding officer may consider a failure to respond within the required time period in ruling on a motion.

6.15(3) The presiding officer may schedule oral argument on any motion.

6.15(4) Motions pertaining to the hearing, except motions for summary judgment, must be filed and served at least ten days prior to the date of hearing unless there is good cause for permitting later action or the time for such action is lengthened or shortened by rule of the agency or an order of the presiding officer.

6.15(5) Motions for summary judgment. Motions for summary judgment shall comply with the requirements of Iowa Rule of Civil Procedure 237 and shall be subject to disposition according to the requirements of that rule to the extent such requirements are not inconsistent with the provision of this rule or any other provision of law governing the procedure in contested cases.

Motions for summary judgment must be filed and served at least 45 days prior to the scheduled hearing date, or other time period determined by the presiding officer. Any party resisting the motion shall file and serve a resistance within 15 days, unless otherwise ordered by the presiding officer, from the date a copy of the motion was served. The time fixed for hearing or nonoral submission shall be not less than 20 days after the filing of the motion, unless a shorter time is ordered by the presiding officer. A summary judgment order rendered on all issues in a contested case is subject to rehearing pursuant to 6.29(17A) and appeal pursuant to 6.28(17A).

6.16(1) Any party may request a prehearing conference. A written request for prehearing conference or an order for prehearing conference on the presiding officer’s own motion shall be filed not less than seven days prior to the hearing date. A prehearing conference shall be scheduled not less than three business days prior to the hearing date.

Written notice of the prehearing conference shall be given by the information technology department to all parties. For good cause the presiding officer may permit variances from this rule.

6.16(2) Each party shall bring to the prehearing conference:

a. A final list of the witnesses whom the party anticipates will testify at hearing. Witnesses not listed may be excluded from testifying unless there was good cause for the failure to include their names; and

b. A final list of exhibits which the party anticipates will be introduced at hearing. Exhibits other than rebuttal exhibits that are not listed may be excluded from admission into evidence unless there was good cause for the failure to include them.

c. Witness or exhibit lists may be amended subsequent to the prehearing conference within the time limits established by the presiding officer at the prehearing conference. Any such amendments must be served on all parties.

6.16(3) In addition to the requirements of subrule 6.16(2), the parties at a prehearing conference may:

a. Enter into stipulations of law or fact;

b. Enter into stipulations on the admissibility of exhibits;

c. Identify matters which the parties intend to request be officially noticed;

d. Enter into stipulations for waiver of any provision of law; and

e. Consider any additional matters which will expedite the hearing.

6.16(4) Prehearing conferences shall be conducted by telephone unless otherwise ordered. Parties shall exchange and receive witness and exhibit lists in advance of a telephone or video prehearing conference.

471—6.17(17A) Continuances. Unless otherwise provided, applications for continuances shall be made to the presiding officer.

6.17(1) A written application for a continuance shall:

a. Be made at the earliest possible time and no less than seven days before the hearing except in case of unanticipated emergencies;

b. State the specific reasons for the request; and

c. Be signed by the requesting party or the party’s representative. An oral application for a continuance may be made if the presiding officer waives the requirement for a written motion. However, a party making such an oral application for a continuance must confirm that request by written application within five days after the oral request unless that requirement is waived by the presiding officer. No application for continuance shall be made or granted without notice to all parties except in an emergency where notice is not feasible. The agency may waive notice of such requests for a particular case or an entire class of cases.

6.17(2) In determining whether to grant a continuance, the presiding officer may consider:

a. Prior continuances;

b. The interests of all parties;

c. The likelihood of informal settlement;

d. The existence of an emergency;

e. Any objection;

f. Any applicable time requirements;

g. The existence of a conflict in the schedules of counsel, parties, or witnesses;

h. The timeliness of the request; and

i. Other relevant factors.

The presiding officer may require documentation of any grounds for continuance.

471—6.18(17A) Withdrawals. A party requesting a contested case proceeding may withdraw that request prior to the hearing only in accordance with agency rules. Unless otherwise provided, a withdrawal shall be with prejudice.

6.19(1) Motion. A motion for leave to intervene in a contested case proceeding shall state the ground for the proposed intervention, the position and interest of the proposed intervenor, and the possible impact of intervention on the proceeding. A proposed answer or petition in intervention shall be attached to the motion. Any party may file a response within 14 days of service of the motion to intervene unless the time period is extended or shortened by the presiding officer.

6.19(2) When filed. Motion for leave to intervene shall be filed as early in the proceeding as possible to avoid adverse impact on existing parties or the conduct of the proceeding. Unless otherwise ordered, a motion for leave to intervene shall be filed before the prehearing conference, if any, or at least 20 days before the date scheduled for hearing. Any later motion must contain a statement of good cause for the failure to file in a timely manner. Unless inequitable or unjust, an intervenor shall be bound by any agreement, arrangement, or other matter previously raised in the case. Requests by untimely intervenors for continuances which would delay the proceeding will ordinarily be denied.

6.19(3) Grounds for intervention. The movant shall demonstrate that: (a) intervention would not unduly prolong the proceedings or otherwise prejudice the rights of existing parties; (b) the movant is likely to be aggrieved or adversely affected by a final order in the proceeding; and (c) the interests of the movant are not adequately represented by existing parties.

6.19(4) Effect of intervention. If appropriate, the presiding officer may order consolidation of the petitions and briefs of different parties whose interests are aligned with each other and limit the number of representatives allowed to participate actively in the proceedings. A person granted leave to intervene is a party to the proceeding. The order granting intervention may restrict the issues that may be raised by the intervenor or otherwise condition the intervenor’s participation in the proceeding.

6.20(1) The presiding officer presides at the hearing, and may rule on motions, require briefs, issue a proposed decision, and issue such orders and rulings as will ensure the orderly conduct of the proceedings.

6.20(2) All objections shall be timely made and stated on the record.

6.20(3) Parties have the right to participate or to be represented in all hearings or prehearing conferences related to their case. Partnerships, corporations, or associations may be represented by any member, officer, director, or duly authorized agent. Any party may be represented by an attorney or another person authorized by law.

6.20(4) Subject to terms and conditions prescribed by the presiding officer, parties have the right to introduce evidence on issues of material fact, cross–examine witnesses present at the hearing as necessary for a full and true disclosure of the facts, present evidence in rebuttal, and submit briefs and engage in oral argument.

6.20(5) The presiding officer shall maintain the decorum of the hearing and may refuse to admit or may expel anyone whose conduct is disorderly.

6.20(6) Witnesses may be sequestered during the hearing.

6.20(7) The presiding officer shall conduct the hearing in the following manner:

a. The presiding officer shall give an opening statement briefly describing the nature of the proceedings;

b. The parties shall be given an opportunity to present opening statements;

c. Parties shall present their cases in the sequence determined by the presiding officer;

d. Each witness shall be sworn or affirmed by the presiding officer or the court reporter, and be subject to examination and cross–examination. The presiding officer may limit questioning in a manner consistent with law;

e. When all parties and witnesses have been heard, parties may be given the opportunity to present final arguments.

6.21(1) The presiding officer shall rule on admissibility of evidence and may, where appropriate, take official notice of facts in accordance with all applicable requirements of law.

6.21(2) Stipulation of facts is encouraged. The presiding officer may make a decision based on stipulated facts.

6.21(3) Evidence in the proceeding shall be confined to the issues as to which the parties received notice prior to the hearing unless the parties waive their right to such notice or the presiding officer determines that good cause justifies expansion of the issues. If the presiding officer decides to admit evidence on issues outside the scope of the notice over the objection of a party who did not have actual notice of those issues, that party, upon timely request, shall receive a continuance sufficient to amend pleadings and to prepare on the additional issue.

6.21(4) The party seeking admission of an exhibit must provide opposing parties with an opportunity to examine the exhibit prior to the ruling on its admissibility. Copies of documents should normally be provided to opposing parties.

All exhibits admitted into evidence shall be appropriately marked and be made part of the record.

6.21(5) Any party may object to specific evidence or may request limits on the scope of any examination or cross–examination. Such an objection shall be accompanied by a brief statement of the grounds upon which it is based. The objection, the ruling on the objection, and the reasons for the ruling shall be noted in the record. The presiding officer may rule on the objection at the time it is made or may reserve a ruling until the written decision.

6.21(6) Whenever evidence is ruled inadmissible, the party offering that evidence may submit an offer of proof on the record. The party making the offer of proof for excluded oral testimony shall briefly summarize the testimony or, with permission of the presiding officer, present the testimony. If the excluded evidence consists of a document or exhibit, it shall be marked as part of an offer of proof and inserted in the record.

6.22(1) If a party fails to appear or participate in a contested case proceeding after proper service of notice, the presiding officer may, if no adjournment is granted, enter a default decision or proceed with the hearing and render a decision in the absence of the party.

6.22(2) Where appropriate and not contrary to law, any party may move for default against a party who has requested the contested case proceeding and has failed to file a required pleading or has failed to appear after proper service.

6.22(3) Default decisions or decisions rendered on the merits after a party has failed to appear or participate in a contested case proceeding become final agency action unless, within 15 days (unless another period of time is specifically specified by statute or rule) after the date of notification or mailing of the decision, a motion to vacate is filed and served on all parties or an appeal of a decision on the merits is timely initiated within the time provided by rule 6.28(17A). A motion to vacate must state all facts relied upon by the moving party which establish that good cause existed for that party’s failure to appear or participate at the contested case proceeding. Each fact so stated must be substantiated by at least one sworn affidavit of a person with personal knowledge of each such fact, which must be attached to the motion.

6.22(4) The time for further appeal of a decision for which a timely motion to vacate has been filed is stayed pending a decision on the motion to vacate.

6.22(5) Properly substantiated and timely filed motions to vacate shall be granted only for good cause shown. The burden of proof as to good cause is on the moving party. Adverse parties shall have ten days to respond to a motion to vacate. Adverse parties shall be allowed to conduct discovery as to the issue of good cause and to present evidence on the issue prior to a decision on the motion, if a request to do so is included in that party’s response.

6.22(6) “Good cause” for purposes of this rule shall have the same meaning as “good cause” for setting aside a default judgment under Iowa Rule of Civil Procedure 236.

6.22(7) A decision denying a motion to vacate is subject to further appeal within the time limit allowed for further appeal of a decision on the merits in the contested case proceeding. A decision granting a motion to vacate is subject to interlocutory appeal by the adverse party pursuant to rule 6.25(17A).

6.22(8) If a motion to vacate is granted and no timely interlocutory appeal has been taken, the presiding officer shall issue another notice of hearing and the contested case shall proceed accordingly.

6.22(9) A default decision may award any relief consistent with the request for relief made in the petition and embraced in its issues, but unless the defaulting party has appeared, it cannot exceed the relief demanded.

6.22(10) A default decision may provide either that the default decision is to be stayed pending a timely motion to vacate or that the default decision is to take effect immediately, subject to a request for stay under rule 6.30(17A).

6.23(1) Prohibited communications. Unless required for the disposition of ex parte matters specifically authorized by statute, following issuance of the notice of hearing, there shall be no communication, directly or indirectly, between the presiding officer and any party or representative of any party or any other person with a direct or indirect interest in such case in connection with any issue of fact or law in the case except upon notice and opportunity for all parties to participate. This does not prohibit persons jointly assigned such tasks from communicating with each other. Nothing in this provision is intended to preclude the presiding officer from communicating with members of the agency or seeking the advice or help of persons other than those with a personal interest in, or those engaged in personally investigating as defined in subrule 6.9(2), prosecuting, or advocating in, either the case under consideration or a pending factually related case involving the same parties as long as those persons do not directly or indirectly communicate to the presiding officer any ex parte communications they have received of a type that the presiding officer would be prohibited from receiving or that furnish, augment, diminish, or modify the evidence in the record.

6.23(2) Prohibitions on ex parte communications commence with the issuance of the notice of hearing in a contested case and continue for as long as the case is pending.

6.23(3) Written, oral or other forms of communication are “ex parte” if made without notice and opportunity for all parties to participate.

6.23(4) To avoid prohibited ex parte communications, notice must be given in a manner reasonably calculated to give all parties a fair opportunity to participate. Notice of written communications shall be provided in compliance with rule 6.12(17A) and may be supplemented by telephone, facsimile, electronic mail or other means of notification. Where permitted, oral communications may be initiated through conference telephone call including all parties or their representatives.

6.23(5) Persons who jointly act as presiding officer in a pending contested case may communicate with each other without notice or opportunity for parties to participate.

6.23(6) The executive director or other persons may be present in deliberations or otherwise advise the presiding officer without notice or opportunity for parties to participate as long as they are not disqualified from participating in the making of a proposed or final decision under any provision of law and they comply with subrule 6.23(1).

6.23(7) Communications with the presiding officer involving uncontested scheduling or procedural matters do not require notice or opportunity for parties to participate. Parties should notify other parties prior to initiating such contact with the presiding officer when feasible, and shall notify other parties when seeking to continue hearings or other deadlines pursuant to rule 6.17(17A).

6.23(8) Disclosure of prohibited communications. A presiding officer who receives a prohibited ex parte communication during the pendency of a contested case must initially determine if the effect of the communication is so prejudicial that the presiding officer should be disqualified. If the presiding officer determines that disqualification is warranted, a copy of any prohibited written communication, all written responses to the communication, a written summary stating the substance of any prohibited oral or other communication not available in written form for disclosure, all responses made, and the identity of each person from whom the presiding officer received a prohibited ex parte communication shall be submitted for inclusion in the record under seal by protective order. If the presiding officer determines that disqualification is not warranted, such documents shall be submitted for inclusion in the record and served on all parties. Any party desiring to rebut the prohibited communication must be allowed the opportunity to do so upon written request filed within ten days after notice of the communication.

6.23(9) Promptly after being assigned to serve as presiding officer at any stage in a contested case proceeding, a presiding officer shall disclose to all parties material factual information received through ex parte communication prior to such assignment unless the factual information has already been or shortly will be disclosed pursuant to Iowa Code section 17A.13(2) or through discovery. Factual information contained in an investigative report or similar document need not be separately disclosed by the presiding officer as long as such documents have been or will shortly be provided to the parties.

6.23(10) The presiding officer may render a proposed or final decision imposing appropriate sanctions for violations of this rule including default, a decision against the offending party, censure, or suspension or revocation of the privilege to practice before the agency. Violation of ex parte communication prohibitions by agency personnel shall be reported to the chief information officer for possible sanctions including censure, suspension, dismissal, or other disciplinary action.

471—6.24(17A) Recording costs. Upon request, the information technology department shall provide a copy of the whole or any portion of the record at cost. The cost of preparing a copy of the record or of transcribing the hearing record shall be paid by the requesting party.

Parties who request that a hearing be recorded by certified shorthand reporters rather than by electronic means shall bear the cost of that recordation, unless otherwise provided by law.

471—6.25(17A) Interlocutory appeals. Upon written request of a party or on its own motion, the council may review an interlocutory order. In determining whether to do so, the council shall weigh the extent to which its granting the interlocutory appeal would expedite final resolution of the case and the extent to which review of that interlocutory order by the agency at the time it reviews the proposed decision of the presiding officer would provide an adequate remedy. Any request for interlocutory review must be filed within 14 days of issuance of the challenged order, but no later than the time for compliance with the order or the date of hearing, whichever is first.

471—6.26(17A) Posthearing procedures. The presiding officer may ask the parties to submit proposed findings and conclusions of law and proposed order or briefs. Copies of the submission shall be served on all parties. The submission schedule, including waiver or briefs, shall be determined at the close of the hearing.

6.27(1) When a quorum of the entire information technology council presides over the reception of evidence at the hearing, its decision is a final decision.

6.27(2) In a contested case in which the hearing is held before an administrative law judge or a panel of the council’s board members constituting less than a quorum of the council, the presiding officer or panel shall render a proposed decision. The proposed decision shall be in writing and shall include findings of fact and conclusions of law in conformance with Iowa Code chapter 17A. The proposed decision becomes the final decision of the council without further proceedings unless there is an appeal to, or review on motion of, the authority within 30 days.

6.27(3) The proposed or final decision or order shall:

a. Be in writing or stated in the record.

b. Include findings of fact. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of underlying facts supporting the findings. If a party submitted proposed findings of fact in accordance with rule 6.26(17A), the decision or order shall include a ruling upon each proposed finding.

c. Include conclusions of law, supported by cited authority or a reasoned opinion.

d. Be delivered to the parties either by personal service or by certified mail, return receipt requested.

6.28(1) Appeal by party. Any adversely affected party may appeal a proposed decision to the council within 30 days after issuance of the proposed decision.

6.28(2) Review. The information technology council may initiate review of a proposed decision on its own motion at any time within 30 days following the issuance of such a decision.

6.28(3) Notice of appeal. An appeal of a proposed decision is initiated by filing a timely notice of appeal with the information technology department. The notice of appeal must be signed by the appealing party or a representative of that party and contain a certificate of service. The notice shall specify:

a. The parties initiating the appeal;

b. The proposed decision or order appealed from;

c. The specific findings or conclusions to which exception is taken and any other exceptions to the decision or order;

d. The relief sought;

e. The grounds for relief.

6.28(4) Requests to present additional evidence. A party may request the taking of additional evidence only by establishing that the evidence is material, that good cause existed for the failure to present the evidence at the hearing, and that the party has not waived the right to present the evidence. A written request to present additional evidence must be filed with the notice of appeal or, by a nonappealing party, within 14 days of service of the notice of appeal. The council may remand a case to the presiding officer for further hearing or may itself preside at the taking of additional evidence.

6.28(5) Scheduling. The information technology department shall issue a schedule for consideration of the appeal.

6.28(6) Briefs and arguments. Unless otherwise ordered, within 20 days of the notice of appeal or order for review, each appealing party may file exceptions and briefs. Within 20 days thereafter, any party may file a responsive brief. Briefs shall cite any applicable legal authority and specify relevant portions of the record in that proceeding. Written requests to present oral argument shall be filed with the briefs.

The information technology council may resolve the appeal on the briefs or provide an opportunity for oral argument. The council may shorten or extend the briefing period as appropriate.

6.29(1) By whom filed. Any party to a contested caseproceeding may file an application for rehearing from a final order.

6.29(2) Content of application. The application for rehearing shall state on whose behalf it is filed, the specific grounds for rehearing, and the relief sought. In addition, the application shall state whether the applicant desires reconsideration of all or part of the agency decision on the existing record and whether, on the basis of the grounds enumerated in subrule 6.28(4), the applicant requests an opportunity to submit additional evidence.

6.29(3) Time of filing. The application shall be filed with the information technology department within 20 days after issuance of the final decision.

6.29(4) Notice to other parties. A copy of the application shall be timely mailed by the applicant to all parties of record not joining therein. If the application does not contain a certificate of service, the information technology department shall serve copies on all parties.

6.29(5) Disposition. Any application for a rehearing shall be deemed denied unless the agency grants the application within 20 days after its filing.

6.30(1) When available.

a. Any party to a contested case proceeding may petition the information technology council for a stay or other temporary remedies, pending review by the agency. The petition shall be filed with the notice of appeal and shall state the reasons justifying a stay or other temporary remedy. The council may rule on the stay or authorize the presiding officer to do so.

b. Any party to a contested case proceeding may petition the information technology council for a stay or other temporary remedies pending judicial review of all or part of that proceeding. The petition shall state the reasons justifying a stay or other temporary remedy.

6.30(2) When granted. In determining whether to grant a stay, the presiding officer shall consider the factors listed in Iowa Code section 17A.19(5)“c.”

6.30(3) Vacation. A stay may be vacated by the issuing authority upon application of the information technology department or any other party.

471—6.31(17A) No factual dispute contested cases. If the parties agree that no dispute of material fact exists as to a matter that would be a contested case if such a dispute of fact existed, the parties may present all relevant admissible evidence either by stipulation or otherwise as agreed by the parties, without necessity for the production of evidence at an evidentiary hearing. If such agreement is reached, a jointly submitted schedule detailing the method and timetable for submission of the record, briefs and oral argument should be submitted to the presiding officer for approval as soon as practicable. If the parties cannot agree, any party may file and serve a motion for summary judgment pursuant to the rules governing such motions.

6.32(1) Necessary emergency action. To the extent necessary to prevent or avoid immediate danger to the public health, safety, or welfare and, consistent with the Constitution and other provisions of law, the agency may issue a written order in compliance with Iowa Code section 17A.18 to suspend a license in whole or in part, order the cessation of any continuing activity, order affirmative action, or take other action within the jurisdiction of the agency by emergency adjudicative order. Before issuing an emergency adjudicative order the agency shall consider factors including, but not limited to, the following:

a. Whether there has been a sufficient factual investigation to ensure that the agency is proceeding on the basis of reliable information;

b. Whether the specific circumstances which pose immediate danger to the public health, safety or welfare have been identified and determined to be continuing;

c. Whether the person required to comply with the emergency adjudicative order may continue to engage in other activities without posing immediate danger to the public health, safety or welfare;

d. Whether imposition of monitoring requirements or other interim safeguards would be sufficient to protect the public health, safety or welfare; and

e. Whether the specific action contemplated by the agency is necessary to avoid the immediate danger.

6.32(2) Issuance of order.

a. An emergency adjudicative order shall contain findings of fact, conclusions of law, and policy reasons to justify the determination of an immediate danger in the agency’s decision to take immediate action.

b. The written emergency adjudicative order shall be immediately delivered to persons who are required to comply with the order by utilizing one or more of the following procedures:

(1) Personal delivery;

(2) Certified mail, return receipt requested, to the last address on file with the agency;

(3) Certified mail to the last address on file with the agency;

(4) First–class mail to the last address on file with the agency; or

(5) Fax. Fax may be used as the sole method of delivery if the person required to comply with the order has filed a written request that agency orders be sent by fax and has provided a fax number for the purpose.

c. To the degree practicable, the agency shall select the procedure for providing written notice that best ensures prompt, reliable delivery.

6.32(3) Oral notice. Unless the written emergency adjudicative order is provided by personal delivery on the same day that the order issues, the agency shall make reasonable immediate efforts to contact by telephone the persons who are required to comply with the order.

6.32(4) Completion of proceedings. After the issuance of an emergency adjudicative order, the agency shall proceed as quickly as feasible to complete any proceedings that would be required if the matter did not involve an immediate danger.

Issuance of a written emergency adjudicative order shall include notification of the date on which agency proceedings are scheduled for completion. After issuance of an emergency adjudicative order, continuance of further agency proceedings to a later date will be granted only in compelling circumstances upon application in writing.

These rules are intended to implement Iowa Code chapter 17A and 2000 Iowa Acts, chapter 1141.

Pursuant to the authority of 2000 Iowa Acts, chapters 1141 and 1176, the Information Technology Department hereby gives Notice of Intended Action to adopt Chapter 7, “Waivers,” Iowa Administrative Code.

This chapter creates a policy in which the Information Technology Council may grant waivers from rules adopted by the Information Technology Council. It establishes applicable standards and a uniform procedure for granting such waivers to individuals.

The chapter describes the manner in which a petition must be presented to the Council and what information shall be included in the petition when submitted. In addition, the chapter allows for the Council to request any additional information from the individual relative to the petition.

The chapter includes policies regarding the notice of the petition for waiver and the Council’s ruling on a particular petition. It also provides that all orders granting or denying waiver petitions shall be made available for public inspection as provided in Iowa Code section 17A.3.

The chapter sets forth circumstances in which the Information Technology Council may withdraw, cancel, or modify a waiver previously issued. In addition, the chapter includes policies for violations of a condition in a waiver, for treatment of the waiver as a defense, and for judicial review.

Any interested person may make written or electronic suggestions or comments on the proposed adoption on or before December 19, 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. Electronic mail regarding administrative rules may be submitted to ITD.Rules@its.state.ia.us.

Also, there will be a public hearing on December 19, 2000, from 9 to 10 a.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 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, chapter 1176, and Iowa Code chapter 17A.

The following new chapter is proposed.

CHAPTER 7
WAIVERS

471—7.1(17A,78GA,ch1176) Definition. For purposes of this chapter, “a waiver or variance” means action by the information technology council which suspends in whole or in part the requirements or provisions of a rule as applied to an identified person or entity on the basis of the particular circumstances of that person or entity. For simplicity, the term “waiver” shall include both a “waiver” and a “variance.”

471—7.2(17A,78GA,ch1176) Scope. This chapter outlines generally applicable standards and a uniform process for the granting of individual waivers from rules adopted by the council 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.

471—7.3(17A,78GA,ch1176) Applicability. The council may only grant a waiver from a rule if the council has jurisdiction over the rule and the requested waiver is consistent with applicable statutes, constitutional provisions, or other provisions of law. The council may not waive requirements created or duties imposed by statute.

471—7.4(17A,78GA,ch1176) Criteria for waiver or variance. In response to a petition completed pursuant to rule 7.6(17A,78GA,ch1176), the council may issue an order waiving in whole or in part the requirements of a rule if the council finds, based on clear and convincing evidence, all of the following:

1. Application of the rule would impose an undue hardship on the person for whom the waiver is requested;

2. 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.

471—7.5(17A,78GA,ch1176) Filing of petition for waiver. A petition for a waiver must be submitted in writing to the council as follows:

7.5(1) 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.

7.5(2) Other. If the petition does not relate to a pending contested case, the petition may be submitted to the executive assistant to the director to the information technology department.

471—7.6(17A,78GA,ch1176) Content of petition for waiver. A petition for waiver shall include the following information where applicable and when known by 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 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 7.4(17A,78GA,ch1176). 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 council and the petitioner relating to the regulated activity affected by the proposed waiver, including a description of contested case hearings relating to the activity within the past five years.

6. Any information known to the requester regarding the council’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 grant of the waiver.

8. The name, address, and telephone number of any person or entity who would be adversely affected by the grant of a waiver.

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 council with information relevant to the waiver.

471—7.7(17A,78GA,ch1176) Additional information. Prior to issuing an order granting or denying a waiver, the council 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 council may, on its own motion or at the petitioner’s request, schedule a telephonic, ICN, or in–person meeting between the petitioner and the chairperson of the council, a committee of the council, or a quorum of the council.

471—7.8(17A,78GA,ch1176) Notice. The council shall acknowledge a petition upon receipt. The council 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 council may give notice to other persons. To accomplish this notice provision, the council 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 council attesting that notice has been provided.

471—7.9(17A,78GA,ch1176) 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, and shall otherwise apply to agency proceedings for a waiver only when the council so provides by rule or order or is required to do so by statute.

471—7.10(17A,78GA,ch1176) 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.

7.10(1) Council discretion. The final decision on whether the circumstances justify the granting of a waiver shall be made at the sole discretion of the council, upon consideration of all relevant factors. Each petition for a waiver shall be evaluated by the council based on the unique, individual circumstances set out in the petition.

7.10(2) Burden of persuasion. The burden of persuasion rests with the petitioner to demonstrate by clear and convincing evidence that the council should exercise its discretion to grant a waiver from a department rule.

7.10(3) Narrowly tailored exception. A waiver, if granted, shall provide the narrowest exception possible to the provisions of a rule.

7.10(4) Administrative deadlines. When the rule from which a waiver is sought establishes administrative deadlines, the council shall balance the special individual circumstances of the petitioner with the overall goal of uniform treatment of all similarly situated persons.

7.10(5) Conditions. The council may place any condition on a waiver that the council finds desirable to protect the public health, safety, and welfare.

7.10(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 council, a waiver may be renewed if the council finds that grounds for a waiver continue to exist.

7.10(7) Time for ruling. The council 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 council shall grant or deny the petition no later than the time at which the final decision in that contested case is issued.

7.10(8) When deemed denied. Failure of the council to grant or deny a petition within the required time period shall be deemed a denial of that petition by the council. However, the council shall remain responsible for issuing an order denying a waiver.

7.10(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.

471—7.11(17A,78GA,ch1176) 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 council is authorized or required to keep confidential. The council may accordingly edit confidential information from petitions or orders prior to public inspection.

471—7.12(17A,78GA,ch1176) Summary reports. Semi–annually, the information technology department 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 each rule, and a general summary of the reasons justifying the council’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 at the Information Technology Department, Level B, Hoover State Office Building, Des Moines, Iowa 50319. Copies of this report shall be provided semiannually to the administrative rules coordinator and the administrative rules review committee.

471—7.13(17A,78GA,ch1176) Cancellation of a waiver. A waiver issued by the council pursuant to this chapter may be withdrawn, canceled, or modified if, after appropriate notice and hearing, the council 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.

471—7.14(17A,78GA,ch1176) 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 order may be subject to the same remedies or penalties as a person who violates the rule at issue.

471—7.15(17A,78GA,ch1176) Defense. After the council 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.

471—7.16(17A,78GA,ch1176) Judicial review. Judicial review of a council decision to grant or deny a waiver petition may be taken in accordance with Iowa Code chapter 17A.

These rules are intended to implement 2000 Iowa Acts, chapter 1176, and Iowa Code chapter 17A.

Pursuant to the authority of 2000 Iowa Acts, chapter 1023, section 5, and Iowa Code chapter 17A, the Insurance Division hereby proposes to adopt new Chapter 90, “Financial Information Regulation,” Iowa Administrative Code.

The purpose of these rules is to comply with the federal Gramm–Leach–Bliley Act, Pub. L. No. 106–102, which regulates the privacy of information held by an insurer or a producer. Federal law requires that states adopt rules by November 13, 2000, to carry out Title V of the Act. These rules require insurers and producers to develop privacy policies, to develop systems for implementing these policies and protecting personal information of consumers and customers and to provide notices to all customers and consumers prior to either the effective date or a later compliance date established by the Division. These rules also establish a compliance date of July 1, 2001, for entities regulated by the Division. This date is consistent with the compliance date established by federal regulators responsible for enforcing the Act as it applies to federally regulated financial institutions.

Any person may make written comments on the proposed rules on or before December 19, 2000. Comments should be directed to Susan E. Voss, Deputy Commissioner, Insurance Division, 330 Maple, Des Moines, Iowa 50319. Comments may also be transmitted by E–mail to susan.voss @comm6.state.ia.us or may be transmitted via facsimile to (515)281–5692.

A public hearing will be held at 10 a.m. on December 19, 2000, in the office of the Insurance Division, 330 Maple, Des Moines, Iowa 50319. Persons wishing to provide oral comments should contact Susan Voss no later than December 18, 2000, to be placed on the agenda.

These rules were also Adopted and Filed Emergency and are published herein as ARC 0334B. The content of that submission is incorporated by reference.

These rules are intended to implement 2000 Iowa Acts, chapter 1023, section 5, and P.L. 106–102.

Pursuant to the authority of Iowa Code section 124.301, the Board of Pharmacy Examiners hereby gives Notice of Intended Action to amend Chapter 10, “Controlled Substances (Drugs),” Iowa Administrative Code.

The proposed amendments were approved at the October 10, 2000, regular meeting of the Board of Pharmacy Examiners.

The amendments increase the fee for registration and registration renewal under the Iowa Controlled Substances Act and increase the penalty for late registration or registration renewal. These fees have not been adjusted since 1985. This proposal would increase the annualized registration fee by $10 and is needed to cover increasing program costs.

Any interested person may present written comments, data, views, and arguments on the proposed amendments not later than 4:30 p.m. on December 19, 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, or by E–mail to lloyd.jessen@ibpe.state.ia.us.

These amendments are intended to implement Iowa Code section 124.301.

The following amendments are proposed.

ITEM 1. Amend rule 657—10.3(124), introductory paragraph, as follows:

657—10.3(124) Registration and reregistration fee. For each registration or reregistration to manufacture, distribute, dispense, conduct research or instructional activities and conduct chemical analysis with controlled substances listed in Schedules I through V of Iowa Code chapter 124, registrants shall pay a biennial fee of $50 $70.

ITEM 2. Amend subrule 10.3(2) as follows:

10.3(2) Late application. Persons required to register or reregister under the provisions of Iowa Code chapter 124, division III, who file late application, shall pay an additional $50 $70 late payment fee.

Pursuant to the authority of Iowa Code section 157.14, the Board of Cosmetology Arts and Sciences Examiners hereby gives Notice of Intended Action to rescind Chapter 60, “Licensure of Cosmetologists, Electrologists, Estheticians, Manicurists, Nail Technologists, and Instructors of Cosmetology Arts and Sciences,” and adopt a new Chapter 60 with the same title, and to rescind Chapter 62, “Fees,” Iowa Administrative Code, and adopt a new Chapter 62 with the same title.

The proposed amendments rescind the current rules regarding licensing and fees and adopt a new chapter for licensure and a new chapter for fees.

Any interested person may make written comments on the proposed amendments no later than December 20, 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 ten letters to the public for comment and three 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 December 20, 2000, from 9 to 11 a.m. in the Fifth Floor Board 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 157.14 and chapter 272C.

The following amendments are proposed.

ITEM 1. Rescind 645—Chapter 60 and adopt in lieu thereof the following new chapter:

CHAPTER 60
LICENSURE OF COSMETOLOGISTS, ELECTROLOGISTS, ESTHETICIANS, MANICURISTS, NAIL TECHNOLOGISTS, AND INSTRUCTORS OF COSMETOLOGY ARTS AND SCIENCES

645—60.1(157) Definitions. For purposes of these rules,the following definitions shall apply:

“Board” means the Iowa board of cosmetology arts and sciences examiners.

“Core curriculum” means the basic core life sciences curriculum that is required for completion of any course of study of the cosmetology arts and sciences excepting manicuring.

“Cosmetology arts and sciences” means any or all of the following practices, performed with or without compensation by a licensee: cosmetology, electrology, esthetics, and nail technology.

“Lapsed license” means a license that a person has failed to renew as required, or the license of a person who has failed to meet stated obligations for renewal within 30 days of the renewal date.

“Licensee” means any person or entity holding a license pursuant to Iowa Code chapter 157 and 645—Chapters 60 to 65, Iowa Administrative Code.

“Mentor” means a licensee providing guidance in a mentoring program.

“Mentoring” means a program allowing students to experience cosmetology arts and sciences in a licensed salon under the guidance of a mentor.

“Practice discipline” means the practice of electrology, esthetics, nail technology, manicuring or cosmetology as recognized by the board of cosmetology arts and sciences examiners.

“Testing service” means Experior Testing Service, 1360 Energy Park Drive, Saint Paul, Minnesota 55108–5252.

“Trainee” means any person who completes the requirements for licensure in the cosmetology arts and sciences listed in Iowa Code section 157.3, except for the examination, and who has a temporary permit.

60.2(1) Requirements for a license. An applicant for a license shall:

a. Complete a board–approved application form. Application forms may be obtained from the board Web site (www.state.ia.us/idph_pl) or directly from Experior Assessment, LLC, 1360 Energy Park Drive, Saint Paul, Minnesota 55108–5252. All applications shall be sent to Experior Assessment.

b. Complete the application form according to the instructions contained in the application. If the application is not completed according to the instructions, the application will not be reviewed by the testing service. Applications shall be complete before the candidate is eligible to sit for the examination.

c. Provide the appropriate fees with application to the testing service.

d. Present proof of graduation from high school or its equivalent to the testing service. If educated outside the United States, the applicant must attach an original evaluation of the applicant’s education for Word Evaluation Services (WES) or any other accredited evaluation service. An applicant may obtain an application for evaluation by contacting WES at (212)966–6311 or by writing to WES, P.O. Box 745, Old Chelsea Station, New York, NY 10113–0745. An applicant may also provide documentation by attaching a copy of acceptable GED points/diploma or TABE scores.

e. Present a diploma or an official transcript of grades in the practice discipline for which the applicant is requesting licensure. This shall be sent to the testing service with the application, showing completion of training at a school approved by the Iowa board of cosmetology arts and sciences examiners.

f. Pass the theory examination for the particular practice discipline with a score of 75 percent or greater.

g. Pass the state law and rules examination with a score of 75 percent or greater.

60.2(2) Requirements for an instructor’s license. An applicant for an instructor’s license shall:

a. Submit completed application and fees to the testing service;

b. Be a graduate of an accredited high school or the equivalent thereof;

c. Be licensed in the state of Iowa in the specific practice discipline to be taught or be licensed as a cosmetologist who possesses the skill and knowledge required to instruct in that practice discipline;

d. Have completed 1,000 hours of instructor’s training with curriculum contents to be determined by the board or two years’ active practice in the field of cosmetology within six years prior to application proven by documentation;

e. Submit proof of attendance at an advanced instructor’s institute prescribed by the board;

f. Pass an instructor’s and Iowa law examination; and

g. Submit proof of 60 hours of practical experience, excluding school hours, in the area of electrolysis prior to application for an instructor of electrology license.

60.2(3) Conditions. The following conditions apply for all cosmetology arts and sciences licenses.

a. Candidates eligible for testing may contact Experior Testing Service, 1360 Energy Park Drive, Saint Paul, Minnesota 55108–5252 or www.experioronline.com (in the subject area specify “IA Cos”) and arrange a testing time.

b. No application shall be considered until the requested supporting documents and fee have been received by the testing service.

c. Incomplete applications that have been on file in the board office for more than two years shall be considered invalid and shall be destroyed.

d. The licensure fee is nonrefundable.

e. Licensees who were issued their initial licenses within six months prior to the renewal beginning date shall not be required to renew their licenses until the renewal month two years later.

645—60.3(157) Course of study requirements. No school of cosmetology arts and sciences will be approved by the board of cosmetology arts and sciences examiners unless it complies with the course of study requirements as provided below.

60.3(1) Requirements for hours.

60.3(2) Curriculum requirements.

a. Theory instruction shall be taught from a standard approved textbook.

b. Theory instruction may be supplemented from other related textbooks.

c. A student shall be under supervision of a licensed instructor at all times.

d. The mentoring option may not exceed 5 percent of the total course hours of any practice discipline course of study.

e. The instructor shall be licensed in the state of Iowa in the specific practice discipline to be taught or be licensed as a cosmetologist who possesses the skill and knowledge required to instruct in that practice discipline.

f. Course subjects taught in the school curriculum including skills and business management shall relate to the specific course practice discipline.

g. The student shall not begin the mentoring program until completing a minimum of 50 percent of the total course hours and other requirements of the mentoring program established by the school.

h. Required hours for theory and applied practical hours do not have to be obtained from one school.

i. Only hours from accredited or state board–approved school programs will be accepted.

60.3(3) Qualifiers for licensure in specific practice disciplines.

a. A cosmetology license is not a requirement for an electrology, esthetics, nail technology or manicurist license.

b. Core life sciences curriculum of 150 hours shall be transferable in its entirety from one practice discipline to another practice discipline.

c. Theory hours earned in each practice discipline of cosmetology arts and sciences may be used in applying for a cosmetology license.

60.3(4) Core life sciences curriculum. The core life sciences curriculum shall contain the following instruction:

a. Human anatomy and physiology:

Cell, metabolism and body systems,

Human anatomy;

b. Bacteriology;

c. Infection control practices:

Universal precautions,

Sanitation,

Sterilization,

Disinfection;

d. Basic chemistry;

e. Matter;

f. Elements:

Compounds and mixtures;

g. Basic electricity;

h. Electrical measurements:

Reproduction of light rays,

Infrared rays,

Ultraviolet rays,

Visible rays/spectrum;

i. Safety;

j. Hygiene and grooming:

Personal and professional health;

k. Professional ethics;

l. Public relations; and

m. State, federal law, administrative rules and standards.

645—60.4(157) Licensure by endorsement. The board may receive by endorsement any applicant from another state, territory, District of Columbia, province or foreign country who:

1. Submits to the testing service a completed application and appropriate fee;

2. Obtains verification from any state, territory, District of Columbia, province or foreign country or provinces where the applicant is licensed. Verifications of current licensure in the practice discipline in another state for at least 12 months in the 24–month period preceding the submission of the application must be mailed from that state, territory, District of Columbia, provinces or foreign countries directly to Experior Testing. The testing service will not accept verifications received from the applicant;

3. Submits a notarized copy of the passing score on the examinations of Experior Testing Service, NIC (National Interstate Council) or pass the current Iowa theory examination recognized by the board; and

4. Passes the state law and administrative rule examination with a passing score of 75 or greater.

645—60.5(157) Licensure by reciprocal agreement. The board may enter into a reciprocal agreement with any state, territory, District of Columbia, province or foreign country with equal or similar requirements for licensure of cosmetology arts and sciences applicants.

645—60.6(157) Temporary permits to practice cosmetology arts and sciences. An applicant who is applying for initial licensure and is not licensed in another state and who has met the requirements for licensure except for the written examinations may apply for a temporary permit to practice cosmetology arts and sciences. The temporary permit is valid from the date the application is completed until passage of the examination in the practice discipline for which the applicant is seeking licensure. The temporary permit shall be valid for a maximum of 90 days from the date of issuance. The temporary permit holder shall practice under direct supervision of a licensee. After 90 days the temporary permit is invalid and the person may not practice in the cosmetology arts and sciences.

The temporary permit of an applicant who does not pass the second examination shall be revoked. The applicant shall submit the temporary permit to the testing service before sitting for another examination.

645—60.7(157) Demonstrator’s permit. The board may issue a demonstrator’s permit for the purpose of demonstrating cosmetology arts and sciences to the consuming public.

1. A demonstrator’s permit shall be valid for a salon, person or an event. The location, purpose and duration shall be stated on the permit.

2. A demonstrator’s permit shall be valid for no more than ten days.

3. A completed application shall be submitted on a form provided by the board at least 30 days in advance of the intended use dates.

4. An application fee shall be submitted as set forth in these rules.

5. No more than four permits shall be issued to any applicant during a calendar year.

60.8(1) The biennial license renewal period for a license to practice cosmetology arts and sciences shall begin on April 1 of one year and end on March 31 two years later. All licensees shall renew on a biennial basis.

60.8(2) A renewal of license application and continuing education report form to practice as a cosmetology arts and sciences licensee shall be mailed to the licensee at least 60 days prior to the expiration of the license. Failure to receive the renewal application shall not relieve the license holder of the obligation to pay the biennial renewal fees on or before the renewal date.

a. The licensee shall submit the completed application and continuing education report form with the renewal fee to the board office before the license expiration date.

b. Individuals who were issued their initial license within six months of the license renewal beginning date will not be required to renew their license until the next renewal two years later.

c. Those persons licensed for the first time shall not be required to complete continuing education as a prerequisite for the first renewal of their licenses.

d. Persons licensed to practice as cosmetology arts and sciences licensees shall keep their renewal licenses displayed in a conspicuous public place at the primary site of practice.

60.8(3) Late renewal. If the renewal fees, continuing education report and renewal application are received within 30 days after the license renewal expiration date, the late fee for failure to renew before expiration shall be charged.

60.8(4) When all requirements for license renewal are met, the licensee shall be sent a license renewal card by regular mail.

60.9(1) A licensee who is not engaged in practice in the state of Iowa and who is residing within or without the state of Iowa may be granted a waiver of compliance and obtain a certificate of exemption upon written application to the board. The application shall contain a statement that the applicant will not engage in practice in the state of Iowa without first complying with all regulations governing reinstatement after exemption. The application for a certificate of exemption shall be submitted upon the form provided by the board. A licensee must hold a current license in order to apply for exempt status.

60.9(2) Reinstatement of exempted, inactive practitioners. Inactive practitioners who have requested and been granted a waiver of compliance with the renewal requirements and who have obtained a certificate of exemption shall, prior to engaging in the practice of the profession in Iowa, satisfy the requirements for reinstatement as outlined in 645—64.10(157,272C).

60.9(3) Reinstatement of inactive license after exemption. The following chart illustrates the requirements for reinstatement based on the length of time a license has been considered inactive.

60.10(1) If the renewal fees and continuing education report are received more than 30 days after the license renewal expiration date, the license shall be considered lapsed. An application for reinstatement must be filed with the board and be accompanied by the reinstatement fee, the renewal fee for each biennium the license is lapsed and the late fee for failure to renew before expiration. The licensee may be subject to an audit of the licensee’s continuing education report.

60.10(2) Licensees who have not fulfilled the requirements for license renewal or for an exemption in the required time frame will have a lapsed license and shall not engage in the practice of cosmetology arts and sciences. Practicing without a license may be cause for disciplinary action.

60.10(3) To reinstate, licensees shall comply with all requirements for reinstatement as outlined in 645—64.6(157).

60.10(4) Reinstatement of a lapsed license. The following chart illustrates the requirements for reinstatement based on the length of time a license has lapsed.

60.10(5) Reinstatement of a lapsed instructor’s license. The following chart illustrates the requirements for reinstatement based on the length of time a license has lapsed.

60.11(1) An applicant who has been denied licensure by the board may appeal the denial and request a hearing on the issues related to the licensure denial by serving a notice of appeal and request for hearing upon the board not more than 30 days following the date of mailing of the notification of licensure denial to the applicant. The request for hearing as outlined in these rules shall specifically describe the facts to be contested and determined at the hearing.

60.11(2) If an applicant who has been denied licensure by the board appeals the licensure denial and requests a hearing pursuant to this rule, the hearing and subsequent procedures shall be held pursuant to the process outlined in Iowa Code chapter 272C.

These rules are intended to implement Iowa Code chapter 272C and Iowa Code chapter 157.

ITEM 2. Rescind 645—Chapter 62 and adopt in lieu thereof the following new chapter:

CHAPTER 62
FEES

645—62.1(147,157) License fees. All fees are nonrefundable.

62.1(1) Licensure fee for license to practice cosmetology arts and sciences, licensure by endorsement, licensure by reciprocity, or an instructor’s license shall be $50.

62.1(2) Biennial license renewal fee for each license for each biennium shall be $50.

62.1(3) Late fee for failure to renew before expiration shall be $50.

62.1(4) Reinstatement fee for a lapsed license or an inactive license shall be $50.

62.1(5) Duplicate license fee shall be $10.

62.1(6) Verification of license fee shall be $10.

62.1(7) Returned check fee shall be $15.

62.1(8) Disciplinary hearing fee shall be a minimum of $75.

62.1(9) Temporary permit fee shall be $10.

62.1(10) Theory examination fee shall be $70.

62.1(11) Fee for retaking the theory examination shall be $70.

62.1(12) Iowa law (jurisprudence) examination fee shall be $30.

62.1(13) Fee for retaking the Iowa law (jurisprudence) examination shall be $30.

62.1(14) Fee for license to conduct a school teaching cosmetology arts and sciences shall be $500.

62.1(15) Fee for renewal of a license or change of location of a school teaching cosmetology arts and sciences shall be $225 annually.

62.1(16) Salon license fee shall be $35.

62.1(17) Renewal of a salon license fee shall be $70 biennially.

62.1(18) Fee for change of location for a salon shall be $35.

62.1(19) Salon name change fee shall be $15.

62.1(20) Demonstrators temporary permit fee shall be $35 for the first day and $10 for each day thereafter that the permit is valid.

62.1(21) Biennial license renewal fee for an instructor for each biennium shall be $50.

This rule is intended to implement Iowa Code section 147.80 and Iowa Code chapter 157.

Pursuant to the authority of Iowa Code section 157.14, the Board of Cosmetology Arts and Sciences Examiners hereby gives Notice of Intended Action to rescind Chapter 64, “Cosmetology Arts and Sciences Continuing Education,” and adopt new Chapter 64, “Continuing Education for Cosmetology Arts and Sciences,” and amend Chapter 65, “Disciplinary Procedures for Cosmetology Arts and Sciences Licensees,” Iowa Administrative Code.

The proposed amendments rescind the current continuing education rules, adopt a new chapter for continuing education, and renumber the rules regarding discipline.

Any interested person may make written comments on the proposed amendments no later than December 20, 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 December 20, 2000, from 9 to 11 a.m. in the Fifth Floor Board Conference Room,Lucas State Office Building, at which time persons may pre–sent 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 157.14 and chapter 272C.

The following amendments are proposed.

ITEM 1. Rescind 645—Chapter 64 and adopt the following new chapter in lieu thereof:

CHAPTER 64
CONTINUING EDUCATION FOR
COSMETOLOGY ARTS AND SCIENCES

645—64.1(157) Definitions. For the purpose of these rules, the following definitions shall apply:

“Active license” means the license of a person who is acting, functioning, and working in compliance with license requirements.

“Administrator” means the administrator of the board of cosmetology arts and sciences 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 cosmetology arts and sciences examiners.

“Continuing education” means planned, organized learning acts acquired during licensure 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 an approved continuing education activity.

“Inactive license” means the license of a person who is not engaged 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 has failed to meet stated obligations for renewal within a stated time.

“License” means license to practice.

“Licensee” means any person or entity licensed to practice pursuant to Iowa Code chapter 157 and 645—Chapters 60 to 65, Iowa Administrative Code.

“Prescribed practice” means an area of specialty within the scope of cosmetology arts and sciences.

“Self–study course” means a form of systematic learning performed at a licensee’s residence, office, or other private location including, but not limited to, viewing of videotapes, participating in studies electronically transmitted from another location, or participating in self–assessment testing (open book tests that are completed by the licensee, submitted to the provider, graded, and returned to the licensee with correct answers).

64.2(1) The biennial continuing education compliance period shall extend for a period that begins on April 1 of one year and ends on March 31 two years later. All licenses shall be renewed on a biennial basis. Each biennium, each person who is licensed to practice as a licensee in this state shall be required to complete a minimum of eight hours of continuing education approved by the board.

a. One–half of the cosmetology arts and sciences li–censees shall renew for the period of April 1 of an even–numbered year to March 31 of the next even–numbered year.

b. One–half of the cosmetology arts and sciences licensees shall renew for the period of April 1 of an odd–numbered year to March 31 of the next odd–numbered year.

c. Requirements of licensees holding two or more licenses within the scope of cosmetology arts and sciences:

(1) The licensee shall obtain eight hours of continuing education in the area of cosmetology arts and sciences.

(2) For each additional license, the licensee shall obtain an additional four hours of continuing education in the prescribed practice discipline.

(3) Licensees that are instructors of cosmetology arts and sciences shall obtain an additional eight hours of continuing education in teaching technology.

d. Licensees currently licensed in Iowa but practicing exclusively in another state may comply with Iowa continuing education requirements for license renewal by meeting the continuing education requirements of the state or states where the licensee practices. Those licensees living and practicing in a state which has no continuing education requirement for renewal of a license shall not be required to meet Iowa’s continuing education requirement but shall pay all renewal fees when due.

64.2(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 licenses. 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 eight hours of continuing education per biennium for each subsequent license renewal.

64.2(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 and be approved by the board pursuant to statutory provisions and the rules that implement them.

64.2(4) No hours of continuing education shall be carried over into the next biennium.

64.2(5) It is the responsibility of each licensee to finance the cost of continuing education.

64.3(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, location, course title, presenter(s);

(2) Numbers of program contact hours (One contact hour equals one hour of continuing education credit); and

(3) Official signature or verification by program sponsor.

64.3(2) Specific criteria.

a. Continuing education hours of credit may be obtained by attending continuing education activities of an approved sponsor.

b. The licensee may attend programs on product knowledge, methods, and systems. No direct selling of products is allowed as part of a continuing education offering.

c. The licensee may participate in continuing education courses/programs that are approved by the board of cosmetology arts and sciences examiners providing criteria in these rules are met.

d. The licensee may participate in self–study courses as defined in 645—64.1(157).

e. In addition to fulfilling the requirements in 64.2(1), those persons holding an instructor’s license must complete a minimum of eight hours of continuing education approved by the board in the area of teaching technology.

f. The licensee shall obtain at least four hours in each area of prescribed practice for each cosmetology license held.

64.4(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 the following:

(1) Date(s), location, course title(s) offered and program description;

(2) Total hours of instruction presented;

(3) Names and qualifications of instructors including résumés or vitae; and

(4) Evaluation form(s).

b. Records shall be retained by the sponsor for four years.

c. Attendance record report. The person or organization sponsoring an approved continuing education activity shall provide a certificate of attendance or verification to the licensee providing the following information:

(1) Program date(s);

(2) Course title and presenter;

(3) Location;

(4) Number of clock hours attended and continuing education hours earned;

(5) Name of sponsor and sponsor number;

(6) Licensee’s name; and

(7) Method of presentation.

d. All approved sponsors shall maintain a copy of the following:

(1) The continuing education activity;

(2) List of enrolled licensees’ names and license numbers; and

(3) Number of continuing education clock hours awarded for a minimum of four years from the date of the continuing education activity.

e. The sponsor shall submit a report of all continuing education programs conducted in the previous year during the assigned month for reporting designated by the board. The report shall include:

(1) Date(s), location, course title(s) offered and outline of content;

(2) Total hours of instruction presented;

(3) Names and qualifications of instructors including résumés or vitae;

(4) Evaluation form(s); and

(5) A summary of the evaluations completed by the licensees.

64.4(2) Prior approval of programs/activities. An organization or person other than an approved sponsor that desires prior approval of a course, program or other educational activity or that desires to establish approval of such activity prior to attendance shall apply for approval to the board on a form provided by the board at least 60 days in advance of the commencement of the activity. The board shall approve or deny such application in writing within 30 days of receipt of such application. The application shall state:

a. The date(s);

b. Course(s) offered;

c. Program description;

d. Total hours of instruction; and

e. Names and qualifications of speakers and other pertinent information.

The organization or person shall be notified of approval or denial by ordinary mail.

64.4(3) Review of programs. Continuing educationprograms/activities shall be reported every year at the designated time assigned by the board. The board may at any time reevaluate an approved sponsor or program. If, after reevaluation, the board finds there is cause for revocation of the approval of an approved sponsor, the board shall give notice of the revocation to that sponsor by certified mail. The sponsor shall have the right to hearing regarding the revocation. The request for hearing must be sent within 20 days after the receipt of the notice of revocation. The hearing shall be held within 90 days after the receipt of the request for hearing. The board shall give notice by certified mail to the sponsor of the date set for the hearing at least 30 days prior to the hearing. The board shall conduct the hearing in compliance with rule 645—11.9(17A).

64.4(4) Postapproval of activities. A licensee seeking credit for attendance and participation in an educational activity which was not conducted by an approved sponsor or otherwise approved shall submit to the board, within 60 days after completion of such activity, the following:

a. The date(s);

b. Course(s) offered;

c. Program description;

d. Total hours of instruction and credit hours requested;

e. Names and qualifications of speakers and other pertinent information;

f. Request for credit which includes a brief summary of the activity; and

g. Certificate of attendance or verification.

Within 90 days after receipt of such application, the board shall advise the licensee in writing by ordinary mail whether the activity is approved and the number of hours allowed. A licensee not complying with the requirements of this subrule may be denied credit for such activity.

64.4(5) Voluntary relinquishment. The approved sponsor may voluntarily relinquish sponsorship by notifying the board office in writing.

645—64.5(157) Reporting continuing education by licensee. At the time of license renewal, each licensee shall be required to submit a report on continuing education to the board on a board–approved form.

64.5(1) The information on the form shall include:

a. Title of continuing education activity;

b. Date(s);

c. Sponsor of the activity;

d. Board–approved sponsor number;

e. Number of continuing education hours earned; and

f. Teaching method used.

64.5(2) Audit of continuing education report. After each educational biennium, the board will audit a percentage of the continuing education reports before granting the renewal of licenses to those being audited.

a. The board will select licensees to be audited.

b. The licensee shall make available to the board for auditing purposes a copy of the certificate of attendance or verification for all reported activities that includes the following information:

(1) Date, location, course title, schedule (brochure, pamphlet, program, presenter(s)), and method of presentation;

(2) Number of contact hours for program attended; and

(3) Indication of the successful completion of the course.

c. For auditing purposes, the licensee must retain the above information for two years after the biennium has end– ed.

d. Submission of a false report of continuing education or failure to meet continuing education requirements may cause the license to lapse and may result in formal disciplinary action.

e. All renewal license applications that are submitted late (after the end of the compliance period) may be subject to audit of the continuing education report.

f. Failure to receive the renewal application shall not relieve the licensee of responsibility of meeting continuing education requirements and submitting the renewal fee by the end of the compliance period.

645—64.6(157) Reinstatement of lapsed license. Failure of the licensee to renew within 30 days after expiration date shall cause the license to lapse. A person who allows the license to lapse cannot engage in practice in Iowa without first complying with all regulations governing reinstatement as outlined in the board rules. A person who allows the license to lapse may apply to the board for reinstatement of the license. Reinstatement of the lapsed license may be granted by the board if the applicant:

1. Submits a written application for reinstatement to the board;

2. Pays all of the renewal fees then due to a maximum of two bienniums;

3. Pays the reinstatement fee;

4. Pays all late fees which have been assessed by the board for failure to renew;

5. Provides evidence of satisfactory completion of continuing education requirements during the period since the license lapsed. The total number of continuing education hours required for license reinstatement is computed by multiplying 8 by the number of bienniums since the license lapsed to a maximum of four bienniums or 32 continuing education hours.

6. If the license has lapsed for four bienniums or more, the person shall complete the national board examination.

7. For a lapsed instructor license, the licensee shall pay the past renewal and late fees to a maximum of two bienniums, take a teaching technology course, and pass the instructor and Iowa law examinations within six months of date of reinstatement.

645—64.7(157,272C) Continuing education waiver for active practitioners. A licensee licensed to practice as outlined in 645—Chapter 60 shall be deemed to have complied with the continuing education requirements of this state during the period that the licensee serves honorably on active duty in the military services or as a government employee outside the United States as a practicing licensee under 645— Chapter 60.

645—64.8(157,272C) Continuing education exemption for inactive practitioners. A licensee who is not engaged in practice in the state of Iowa may be granted an exemption of continuing education compliance and obtain a certificate of exemption upon written application to the board. The application shall contain a statement that the applicant will not engage in practice in Iowa without first complying with all regulations governing reinstatement after exemption. The application for a certificate of exemption shall be submitted upon forms provided by the board. The licensee shall have completed the required continuing education at the time of reinstatement.

645—64.9(157,272C) Continuing education waiver for disability or illness. The board may, in individual cases involving disability or illness, grant waivers of the minimum education requirements or extension of time within which to fulfill the same or make the required reports. No waiver or extension of time shall be granted unless written application therefor is made on forms provided by the board and signed by the licensee and appropriate licensed health care practitioners. The board may grant waiver of the minimum educational requirements for any period of time not to exceed one calendar year from the onset of disability or illness. In the event that the disability or illness upon which a waiver has been granted continues beyond the period of waiver, the licensee must reapply for an extension of the waiver. The board may, as a condition of any waiver granted, require the applicant to make up a certain portion or all of the minimum educational requirements waived by such methods as may be prescribed by the board.

645—64.10(157,272C) Reinstatement of inactive practitioners. Inactive practitioners who have been granted a waiver of compliance with these rules and obtained a certificate of waiver shall, prior to engaging in practice in the state of Iowa, satisfy the following requirements for reinstatement.

64.10(1) Submit a written application for reinstatement to the board upon forms provided by the board;

64.10(2) Submit the reinstatement fee;

64.10(3) Pay all of the renewal fees then due to a maximum of two bienniums; and

64.10(4) Furnish in the application evidence of one of the following:

a. Satisfactory completion of continuing education requirements during the period since the license became inactive. The total number of continuing education hours required for license reinstatement is computed by multiplying 8 by the number of bienniums since the license lapsed to a maximum of four bienniums or 32 continuing education hours.

b. If the license has lapsed for four bienniums or more, the person shall complete the national board examination.

645—64.11(272C) Hearings. In the event of denial, in whole or part, of any application for approval of a continuing education program or credit for continuing education activity, the applicant, licensee or program provider shall have the right within 20 days after the sending of the notification of denial by ordinary mail to request a hearing which shall be held within 90 days after receipt of the request for hearing. The hearing shall be conducted by the board or an administrative law judge designated by the board, in substantial compliance with the hearing procedure set forth in rule 645—11.9(17A).

These rules are intended to implement Iowa Code section 272C.2 and chapter 157.

ITEM 2. Renumber rule 645—65.12(272C) as 645— 65.1(272C).

Pursuant to the authority of Iowa Code section 147A.4,the Department of Public Health hereby gives Notice of Intended Action to amend Chapter 132, “Emergency Medical Services—Service Program Authorization,” Iowa Administrative Code.

The proposed amendments are intended to implement 2000 Iowa Acts, chapter 1009, by allowing EMS providers to function in a hospital or other entity in which health care is ordinarily provided.

The Department has provided specific provisions for a waiver or variance from rules in Chapter 132. A party seeking a waiver or variance from the rules should do so pursuant to the waiver provisions contained in subrule 132.8(11).

The Department’s Emergency Medical Services Advisory Council unanimously adopted the proposed changes at the October 11, 2000, meeting.

The Department of Public Health will hold a public hearing over the Iowa Communications Network (ICN) on Tuesday, December 19, 2000, from 1 to 2 p.m. Sites participating in the ICN broadcast include the following:

Spencer Public Library, 21 East Third, Spencer

National Guard Armory, 1712 LaClark Road, Carroll

National Guard Armory, 315 12th Avenue NW, Hampton

Department of Public Health, ICN Room, Sixth Floor, Lucas State Office Building, 321 East 12th Street, Des Moines

National Guard Armory, 195 Radford Road, Dubuque

National Guard Armory, 501 Highway 1 South, Washington

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 amendments. Any person who plans to attend the public hearing and who may have special requirements, such as hearing or mobility impairments, should contact the Department of Public Health and advise of specific needs.

Any oral or written comments must be received on or before December 19, 2000. Comments should be addressed to Gary Ireland, EMS Bureau Chief, Department of Public Health, 401 SW 7th Street, Suite D, Des Moines, Iowa 50309.

These amendments are intended to implement Iowa Code chapter 147A.

The following amendments are proposed.

ITEM 1. Amend rule 641—132.1(147A) as follows:

Amend the following definitions:

“Ambulance” means any privately or publicly owned rotorcraft or ground vehicle specifically designed, modified, constructed, equipped, staffed and used regularly to transport the sick, injured or otherwise incapacitated. who are in need of out–of–hospital emergency medical care or whose condition requires treatment or continuous observation while being transported.

“Ambulance service” means any privately or publicly owned service program which utilizes ambulances in order to provide patient transportation and emergency medical services. care at the scene of an emergency or while en route to a hospital or during transfer from one medical care facility to another or to a private home. An ambulance service may use first response or rescue vehicles (nontransport) to supplement ambulance vehicles.

“Current course completion card” means written recognition given for training and successful course completion of CPR or ACLS with an expiration date or a recommended renewal date that exceeds the current date.

“Mutual aid” means an agreement, preferably in writing, between two or more services that addresses how and under what circumstances each service will respond to a request for assistance in situations that exhaust available resources.

“Off–line medical direction” means the monitoring of EMS providers through retroactive retrospective field assessments and treatment documentation review, critiques of selected cases with the EMS personnel, and statistical review of the system.

“On–line medical direction” means immediate medical advice via radio or phone communications between the EMS provider and direction provided directly to service program EMS providers, in accordance with written parameters and protocols, by the medical director, supervising physician or physician designee either on–scene or by any telecommunications system.

“Physician designee” means any registered nurse licensed under Iowa Code chapter 152, or any physician assistant licensed under Iowa Code chapter 148C and approved by the board of physician assistant examiners, who holds a current course completion card in ACLS. The physician designee may act acts as an intermediary for a supervising physician in accordance with written policies and protocols in directing the actions of emergency medical care personnel in accordance with written policies and protocols providing emergency medical services.

“Service program” or “service” means any 24–hour emergency medical care ambulance service or nontransport service that has received authorization by the department.

Adopt the following new definitions in alphabetical order:

“Critical care transport (CCT)” means specialty care patient transportation when medically necessary for a critically ill or injured patient, between medical care facilities, and provided by an authorized ambulance service that is endorsed by the department to provide critical care transportation and staffed by one or more critical care paramedics or other health care professional in an appropriate specialty area.

“Direct supervision” means services provided by an EMS provider in a hospital setting or other health care entity in which health care is ordinarily performed when in the personal presence of a physician or under the direction of a physician who is immediately available or under the direction of a physician assistant or registered nurse who is immediately available and is acting consistent with adopted policies and protocols of a hospital or other health care entity.

“Patient care report” means the out–of–hospital medical record documenting the evaluation and management of the patient.

“Tiered response” means a rendezvous of service programs to allow the transfer of patient care.

ITEM 2. Amend rule 641—132.2(147A) as follows:

132.2(2) An emergency medical care provider may:

a. Render via on–line medical direction emergency and nonemergency medical care in those areas for which the emergency medical care provider is certified, as part of an authorized service program:

(1) At the scene of an emergency;

(2) During transportation to a hospital;

(3) While in the hospital emergency department;

(4) Until patient care is directly assumed by a physician or by authorized hospital personnel; and

(5) During transfer from one medical care facility to another or to a private home.

b. Function in any hospital or any other entity in which health care is ordinarily provided only when under the direct supervision of a physician when:

(1) Enrolled as a student or participating as a preceptor in a training program approved by the department;

(2) Fulfilling continuing education requirements;

(3) Employed by or assigned to a hospital or other entity in which health care is ordinarily provided only when under the direct supervision of a physician as a member of an authorized service program, or in an individual capacity, by rendering lifesaving services in the facility in which employed or assigned pursuant to the emergency medical care provider’s certification and under direct supervision of a physician, physician assistant, or registered nurse. An emergency medical care provider shall not routinely function without the direct supervision of a physician, physician assistant, or registered nurse. However, when the physician, physician assistant, or registered nurse cannot directly assume emergency care of the patient, the emergency medical care personnel may perform, without direct supervision, emergency medical care procedures for which certified, if the life of the patient is in immediate danger and such care is required to preserve the patient’s life;

(4) Employed by or assigned to a hospital or other entity in which health care is ordinarily provided only when under the direct supervision of a physician as a member of an authorized service program, or in an individual capacity, to perform nonlifesaving procedures for which trained and designated in a written job description. Such procedures may be performed after the patient is observed by and when the emergency medical care provider is under the supervision of the physician, physician assistant, or registered nurse, including when the registered nurse is not acting in the capacity of a physician designee, and where the procedure may be immediately abandoned without risk to the patient.

132.2(3) to 132.2(6) No change.

Pursuant to the authority of Iowa Code sections 421.17(19) and 422.68, the Department of Revenue and Finance hereby gives Notice of Intended Action to amend Chapter 39, “Filing Return and Payment of Tax,” Chapter 40, “Determination of Net Income,” Chapter 41, “Determination of Taxable Income,” Chapter 42, “Adjustments to Computed Tax,” Chapter 43, “Assessments and Refunds,” Chapter 46, “Withholding,” and Chapter 52, “Filing Returns, Payment of Tax and Penalty and Interest,” Iowa Administrative Code.

A number of changes in the individual income tax, corporate income tax, and income tax withholding laws were made by 2000 Iowa Acts, chapters 1078, 1058, 1072, 1103, 1163, 1194, 1209, 1146 and 1174. Most of the changes are retroactively applicable to January 1, 2000, for tax years beginning on or after that date. However, two of the changes are effective on January 1, 2001, for tax years beginning on or after that date.

Item 1, which amends subrule 39.1(2), provides that nonresidents of Iowa are required to file Iowa income tax returns if they are subject to Iowa alternative minimum tax even if the nonresidents have Iowa net incomes of less than $1,000.

Item 2, which amends subrule 39.1(3), provides that part–year residents of Iowa are required to file Iowa returns if they are subject to Iowa alternative minimum tax even if the part–year residents have Iowa net income of less than $1,000. This item also includes revision of the implementation clause for rule 39.1(422).

Item 3, amending rule 39.12(422), provides that persons who serve in an area designated as a qualified hazardous duty area are eligible for the same tax benefits as persons serving in a combat zone. This item also describes the tax benefits that are available to individuals serving in a hazardous duty area as well as persons serving in support of persons in the hazardous duty area. This item also includes revision of the implementation clause.

Item 4, which amends rule 40.3(422), provides that interest from notes issued by rural water districts is exempt from state income tax as well as interest from bonds issued by water districts.

Item 5 amends rule 40.3(422) by adding two new paragraphs regarding bonds issued by the Iowa higher education loan authority and bonds issued for the Vision Iowa Program which are state tax–exempt. This item also includes amendment of the implementation clause for rule 40.3(422).

Item 6, which amends rule 40.47(422), describes an additional increase in the partial pension/retirement income exclusion for certain taxpayers, which is effective for tax years beginning on or after January 1, 2001. The item also amends the implementation clause for this rule.

Item 7, amending rule 40.53(422), revises the rule for the deduction of contributions made to the educational savings plan trust to provide that a participant can make a greater contribution on behalf of a respective beneficiary in a tax year than under prior law. In addition, the item provides that the amount that is deductible on the participant’s state income tax return for the 2000 tax year has been increased or indexed for inflation. The implementation clause for this rule is also revised in this item.

Item 8, adopting new rule 40.55(422), provides an income tax exemption for income payments received by victims of the holocaust for labor performed in the World War II era and for assets stolen from or lost by these victims. In cases in which the holocaust victims are deceased, heirs of the victims are eligible for the income tax exemption of the income payments.

Item 9 amends the implementation clause for rule 42.1(257,422) to show that 2000 legislation repealed a provision for a specific surtax for the removal of asbestos in public schools which did not affect the surtax rule. References are added in this implementation clause to school district surtax provisions which should have been previously cited.

Item 10, adopting new subrule 42.2(10), provides for the computation of the research activities credit as under the prior statute. The rule also includes a provision for making an election for computing the research credit in a manner that is consistent with the alternative incremental credit described in federal income tax law. Finally, the new rule provides that taxpayers can choose the method used to compute the research credit for state income tax purposes without considering the method used to compute the credit on the federal return. The implementation clause for rule 42.2(422) is also amended in this item.

Item 11 adopts new rule 42.14(422), which describes the provisions of the assistive device credit for individual income tax purposes. This is a credit for payments made by small businesses to acquire assistive devices for disabled employees or to make workplace modifications for the employees.

Item 12 amends the implementation clause for rule 43.8(422) to show that the provision for the cow/calf refund was revised in 2000 Iowa Acts, House File 2136 [chapter 1058], although the actual rule did not require revision.

Item 13 amends subrule 46.1(2) by adopting a new paragraph that describes the withholding of state income tax from distributions from pensions and other retirement incomes to the extent the distributions are made on or after January 1, 2001. This item also amends the implementation clause for rule 46.1(422).

Item 14 adopts three new subrules for research activity credits. The first research activities credit is for corporate income tax purposes and includes a provision for computing the credit as under the prior law. This subrule also includes a provision for an election for computing the research activities credit using the alternative incremental credit method provided in federal income tax law. Finally, this subrule provides that taxpayers can choose the method used to compute the research activities credit for state income tax purposes without considering the method used to compute the credit on the federal return. The second subrule includes a provision for an additional research activities credit for a taxpayer that meets the qualifications of an eligible business. This research credit is an additional research credit to the initial research credit for individual or corporate purposes and is calculated like the initial research credit. The third subrule is a research activities credit for increasing research activities within an area designated as a quality jobs enterprise zone and is in lieu of the other research credits.

Item 15 amends subrule 52.10(3) to make references in that subrule to the new subrule 52.7(3) for the research activities credit and to new subrule 52.7(4) for the research activities credit for an eligible business.

Item 16 amends subrule 52.14(3) to make a reference in that subrule to subrule 52.7(5) which is the new subrule for the research credit for increasing research activities within a quality jobs enterprise zone.

Item 17 adopts new rule 52.17(422), which describes all the provisions for the assistive device credit for corporate taxpayers. This is a credit for amounts paid by small businesses for acquiring assistive devices for disabled employees or for making workplace modifications for these employees.

The proposed amendments will not necessitate additional expenditures by political subdivisions or agencies and entities that contract with political subdivisions.

There are no waiver provisions reflected in these rules because the Department lacks the statutory authority to grant waivers of rules that are mainly an interpretation of statutes.

The Department has determined that these proposed amendments may have an impact on small business. The Department has considered the factors listed in Iowa Code section 17A.4A (1998 Iowa Acts, chapter 1202, section 10). The Department will issue a regulatory analysis as provided in Iowa Code section 17A.4A (1998 Iowa Acts, chapter 1202, section 10) if a written request is filed by delivery or by mailing postmarked no later than January 2, 2001, to the Policy Section, Compliance Division, Department of Revenue and Finance, Hoover State Office Building, P.O. Box 10457, Des Moines, Iowa 50306. The request may be made by the Administrative Rules Review Committee, the Administrative Rules Coordinator, at least 25 persons signing that request who qualify as a small business, or an organization representing at least 25 such persons.

Any interested person may make written suggestions or comments on these proposed amendments on or before December 29, 2000. Such written comments should be directed to the Policy Section, Compliance Division, Department of Revenue and Finance, Hoover State Office Building, P.O. Box 10457, Des Moines, Iowa 50306. Persons who want to orally convey their views should contact the Policy Section, Compliance Division, Department of Revenue and Finance, at (515)281–4250 or at the Department of Revenue and Finance offices on the fourth floor of the Hoover State Office Building.

Requests for a public hearing must be received by December 22, 2000.

These amendments are intended to implement Iowa Code sections 12.71, 15.335, 15A.9, 217.39, 261A.27, 279.52, 357A.15, 422.3, 422.7, 422.10, 422.11E, 422.12B, 422.13, 422.21, 422.33 and 422.121 as amended by 2000 Iowa Acts, chapters 1078, 1058, 1072, 1103, 1163, 1194, 1209, 1146 and 1174.

The following amendments are proposed.

ITEM 1. Amend subrule 39.1(2) by adopting the following new paragraph “d.”

d. Nonresidents with net incomes of less than $1,000 that are subject to Iowa alternative minimum tax. For tax years beginning on or after January 1, 2000, every nonresident of Iowa who has a net income from Iowa sources of less than $1,000 must make, sign, and file a return if the nonresident is subject to Iowa alternative minimum tax.

ITEM 2. Amend subrule 39.1(3) by adopting the following new paragraph “d” and amend the implementation clause for rule 701—39.1(422) as follows:

d. Part–year residents with net incomes of less than $1,000 that are subject to Iowa alternative minimum tax. For tax years beginning on or after January 1, 2000, every part–year resident of Iowa who has a net income from Iowa sources of less than $1,000 must make, sign and file a return if the part–year resident is subject to Iowa alternative minimum tax.

This rule is intended to implement Iowa Code Supplement sections 422.5 and 422.13 as amended by 1993 2000 Iowa Acts, chapter 123 1146.

ITEM 3. Amend rule 701—39.12(422) as follows:

701—39.12(422) Tax benefits for persons serving in the operation desert shield a combat zone or a qualified hazardous duty area. For tax years ending after August 2, 1990, a number of state tax benefits are authorized for persons who served serve in the an area designated by the President and the Congress in 1991 as a combat zone. Similar state tax benefits are also authorized for persons who serve in an area designated by the President and the Congress as a qualified hazardous duty area for tax years beginning on or after January 1, 1999. Those persons who were in the combat zone serving in support of the armed forces personnel in a combat zone or those persons who were serving in support of armed forces personnel in a qualified hazardous duty area are also eligible for the state tax benefits. The eligible individuals are given the same additional time period to file state income tax returns and perform other acts related to the department of revenue and finance as would constitute timely filing of returns or timely performance of other acts as described in Section 7508(a) of the Internal Revenue Code. “Other acts related to the department” includes filing claims for refund for any type of tax administered by the department, making tax payments other than withholding payments, filing appeals on tax matters, filing returns for taxes other than income tax, and performing other acts such as making timely contributions to individual retirement accounts. The additional time period for filing returns and performing other acts applies to the spouse of the person who was in the combat zone or the qualified hazardous duty area or the spouse of a person who was serving in support of persons in the combat zone or the hazardous duty area to the extent the spouse files jointly or separately on the combined return with the person who was in the combat zone or the hazardous duty area, or when the spouse is a party with the person who was serving in support of persons in the combat zone or hazardous duty area to any tax matter with the department for which the additional time period is allowed. For purposes of the tax benefits provided to persons in the combat zone, the Internal Revenue Code is to include the provisions in Public Law No. 102–2 which was enacted in January 1991. The additional time period for filing state returns and performing other acts is 180 days after the person leaves the combat zone or hazardous duty area which is the same time period as allowed in federal income tax law. However, a person who was hospitalized because of illness or injury in the combat zone or the hazardous duty area has up to five years to file returns or perform certain acts with this department after leaving the combat zone or hazardous duty area.

For tax years beginning on or after January 1, 1995, certain persons performing peacekeeping duties in a location designated by Congress as a qualified hazardous duty zone or other individuals performing military duties overseas in support of the persons in the hazardous duty area are eligible for the tax benefits described above. See rule 39.14(422) for additional information on the Bosnia–Herzegovina hazardous duty area.

This rule is intended to implement Iowa Code Supplement sections 422.3 and 422.21 as amended by 1996 2000 Iowa Acts, Senate File 2168 chapter 1146.

ITEM 4. Amend rule 701—40.3(422), numbered paragraph “6,” as follows:

6. Rural water districts: Bonds and notes issued under Iowa Code section 357A.15.

ITEM 5. Amend rule 701—40.3(422) by adopting the following new numbered paragraphs “22” and “23” and amending the implementation clause as follows:

22. Iowa higher education loan authority: Obligations issued by the authority on or after July 1, 2000, pursuant to either division of Iowa Code chapter 261A as authorized in section 261A.27.

23. Vision Iowa program: Bonds issued on or after July 1, 2000, upon request of the vision Iowa board pursuant to subsection 8 of Iowa Code section 12.71.

This rule is intended to implement 2000 Iowa Acts, chapter 1174, section 15, and Iowa Code section sections 261A.27 as amended by 2000 Iowa Acts, chapter 1209, 357A.15 as amended by 2000 Iowa Acts, chapter 1078, and 422.7.

ITEM 6. Amend rule 701—40.47(422), introductory paragraph and implementation clause, as follows:

701—40.47(422) Partial exclusion of pensions and other retirement benefits for disabled individuals, individuals who are 55 years of age or older, surviving spouses, and survivors. For tax years beginning on or after January 1, 1995, an individual who is disabled, is 55 years of age or older, is a surviving spouse, or is a survivor with an insurable interest in an individual who would have qualified for the exclusion is eligible for a partial exclusion of retirement benefits received in the tax year. For tax years beginning on or after January 1, 2001, the partial exclusion of retirement benefits received in the tax year is increased up to a maximum of $6,000 for a person other than a husband or wife who files a separate state return and up to a maximum of $12,000 for a husband and wife who file a joint Iowa return. For tax years beginning on or after January 1, 1998, the partial exclusion of retirement benefits received in the tax year is was increased to up to a maximum of $5,000 for a person other than a husband or wife who files a separate state income tax return, and up to a maximum of $10,000 for a husband and wife who file a joint state income tax return. A husband and wife filing separate state income tax returns or separately on a combined state return are allowed a combined exclusion of retirement benefits of up to a maximum of $10,000 for tax years beginning in 1998, 1999 and 2000 and a combined exclusion of up to a maximum of $12,000 for tax years beginning on or after January 1, 2001. The $10,000 or $12,000 exclusion may be allocated to the husband and wife in the proportion that each spouse’s respective pension and retirement benefits received bear to the total combined pension and retirement benefits received by both spouses.

This rule is intended to implement Iowa Code sections 422.5 and 422.7 as amended by 1998 2000 Iowa Acts, House File 2513 chapter 1194.

ITEM 7. Amend rule 701—40.53(422) as follows:

Amend subrule 40.53(1), introductory paragraph, as follows:

40.53(1) Deduction from net income for contributions made to the Iowa educational savings plan trust on behalf of beneficiaries. Effective with contributions made on or after July 1, 1998, an individual referred to as a “participant” can claim a deduction on the Iowa individual income tax return for contributions made by that individual to the Iowa educational savings plan trust on behalf of a beneficiary. The deduction on the 1998 Iowa return cannot exceed $2,000 per beneficiary for contributions made in 1998 or the adjusted maximum annual amount for contributions made after 1998. Note that the maximum annual amount that can be deducted per beneficiary is to be may be adjusted or increased to an amount greater than $2,000 for inflation on an annual basis. Starting with tax years beginning in the 2000 calendar year, a participant may contribute an amount on behalf of a beneficiary that is greater than $2,000, but may claim a deduction on the Iowa individual return, of the lesser of the amount given or $2,000 as adjusted by inflation. For example, if a taxpayer made a $5,000 contribution on behalf of a beneficiary to the educational savings plan in 2000, the taxpayer may claim a deduction on the IA 1040 return for 2000 in the amount of $2,054, as this amount is $2,000 as adjusted for inflation in effect for 2000.

Amend the implementation clause as follows:

This rule is intended to implement Iowa Code section 422.7 as amended by 1998 2000 Iowa Acts, House File 2119 chapter 1163.

ITEM 8. Amend 701—Chapter 40 by adopting the following new rule:

701—40.55(422) Exemption of income payments for victims of the holocaust and heirs of victims. For tax years beginning on or after January 1, 2000, income payments received by individuals because they were victims of the holocaust or income payments received by individuals who are heirs of victims of the holocaust are excluded in the computation of net incomes, to the extent the payments were included in the individuals’ federal adjusted gross incomes. Victims of the holocaust were victims of persecution in the World War II era for racial, ethnic or religious reasons by Nazi Germany or other Axis regime.

Holocaust victims may receive income payments for slave labor performed in the World War II era. Income payments may also be received by holocaust victims as reparation for assets stolen from, hidden from, or otherwise lost in the World War II era, including proceeds from insurance policies of the victims. The World War II era includes the time of the war and the time immediately before and immediately after the war. However, income from assets acquired with the income payments or from the sale of those assets shall not be excluded from the computation of net income. The exemption of income payments shall only apply to the first recipient of the income payments who was either a victim of persecution by Nazi Germany or any other Axis regime or a person who is an heir of the victim of persecution.

This rule is intended to implement Iowa Code sections 217.39 and 422.7 as amended by 2000 Iowa Acts, chapter 1103.

ITEM 9. Amend rule 701—42.1(422), implementation clause, as follows:

This rule is intended to implement Iowa Code sections 257.21, 257.29, 279.54, 298.2, 442.15, and 422.16 and 442.17.

ITEM 10. Amend rule 701—42.2(422) by adopting the following new subrule and amending the implementation clause as follows:

42.2(10) Research activities credit. Effective for tax years beginning on or after January 1, 2000, the taxes imposed for individual income tax purposes will be reduced by a tax credit for increasing research activities in this state. See subrule 42.2(6) for the research activities credit that was applicable for individual income tax purposes for tax years beginning on or after January 1, 1985, but prior to January 1, 2000.

a. The credit equals the sum of the following:

(1) Six and one–half percent of the excess of qualified research expenses during the tax year over the base amount for the tax year based upon the state’s apportioned share of the qualifying expenditures for increasing research activities.

(2) Six and one–half percent of the basic research payments determined under Section 41(e)(1)(A) of the Internal Revenue Code during the tax year based upon the state’s apportioned share of the qualifying expenditures for increasing research activities. The state’s apportioned share of the qualifying expenditures for increasing research activities is a percent equal to the ratio of qualified research expenditures in this state to total qualified research activities.

b. In lieu of the credit computed under paragraph “a” of this subrule, a taxpayer may elect to compute the credit amount for qualified research expenses incurred in this state in a manner consistent with the alternative incremental credit described in Section 41(c)(4) of the Internal Revenue Code. The taxpayer may make this election regardless of the method used by the taxpayer on the taxpayer’s federal income tax return. The election made under this paragraph is for the tax year and the taxpayer may use another method or this same method for any subsequent tax year. For purposes of this alternative research credit computation, the credit percentages applicable to qualified research expenses described in clauses (i), (ii), and (iii) of Section 41(c)(4)(A) of the Internal Revenue Code are 1.65 percent, 2.20 percent, and 2.75 percent, respectively.

For purposes of this subrule, the terms “base amount,” “basic research payment,” and “qualified research expense” mean the same as defined for the federal credit for increasing research activities under Section 41 of the Internal Revenue Code, except that for purposes of the alternative incremental credit described in paragraph “b” of this subrule, such amounts are limited to research activities conducted within this state. For purposes of this subrule, “Internal Revenue Code” means the Internal Revenue Code in effect on January 1, 2000.

c. An individual may claim a research activities credit incurred by a partnership, S corporation, limited liability company, estate, or trust electing to have the income of the business entity taxed to the individual. The amount claimed by an individual from the business entity is to be based upon the pro–rata share of the individual’s earnings from a partnership, S corporation, estate or trust. Any research credit in excess of the individual’s tax liability, less the credits authorized in Iowa Code sections 422.11A, 422.12 and 422.12B may be refunded to the individual or may be credited to the individual’s tax liability for the following tax year.

This rule is intended to implement Iowa Code Supplement sections 15.333 and 422.10 as amended by 2000 Iowa Acts, chapters 1194 and 1146, and Iowa Code sections 422.11A, 422.12 and 422.12B as amended by 2000 Iowa Acts, chapter 1146.

ITEM 11. Amend 701—Chapter 42 by adopting the following new rule:

701—42.14(422) Assistive device tax credit. Effective for tax years beginning on or after January 1, 2000, a taxpayer, who is a small business that purchases, rents, or modifies an assistive device or makes workplace modifications for an individual with a disability who is employed or will be employed by the taxpayer, may qualify for an assistive device tax credit, subject to the availability of the credit. The assistive device credit is equal to 50 percent of the first $5,000 paid during the tax year by the small business for the purchase, rental, or modification of an assistive device or for making workplace modifications. Any credit in excess of the tax liability may be refunded or applied to the taxpayer’s tax liability for the following tax year. If the taxpayer elects to take the assistive device tax credit, the taxpayer is not to deduct for Iowa income tax purposes any amount of the cost of an assistive device or workplace modification that is deductible for federal income tax purposes. A small business will not be eligible for the assistive device credit if the device is provided for an owner of the small business unless the owner is a bona fide employee of the small business.

42.14(1) Submitting applications for the credit. A small business wanting to receive the assistive device tax credit must submit an application for the credit to the Iowa department of economic development and provide other information and documents requested by the Iowa department of economic development. If the taxpayer meets the criteria for qualification for the credit, the Iowa department of economic development will issue the taxpayer a certificate of entitlement for the credit. However, the aggregate amount of assistive device tax credits that may be granted by the Iowa department of economic development to all small businesses during a fiscal year cannot exceed $500,000. The certificate for entitlement of the assistive device credit is to include the taxpayer’s name, the taxpayer’s address, the taxpayer’s tax identification number, the estimated amount of the tax credit, the date on which the taxpayer’s application was approved, the date when it is anticipated that the assistive device project will be completed and a space on the application where the taxpayer is to enter the date that the assistive device project was completed. The certificate for entitlement will not be considered to be valid for purposes of claiming the assistive device credit on the taxpayer’s Iowa income tax return until the taxpayer has completed the assistive device project and has entered the completion date on the certificate of entitlement form. The tax year of the small business in which the assistive device project is completed is the tax year for which the assistive device credit may be claimed. For example, in a case where taxpayer A received a certificate of entitlement for an assistive device credit on September 15, 2000, and completed the assistive device workplace modification project on January 15, 2001, taxpayer A could claim the assistive device credit on taxpayer A’s 2001 Iowa return, assuming that taxpayer A is filing returns on a calendar–year basis.

The department of revenue and finance will not allow the assistive device credit on a taxpayer’s return if the certificate of entitlement or a legible copy of the certificate is not attached to the taxpayer’s income tax return. If the taxpayer has been granted a certificate of entitlement and the taxpayer is a partnership, limited liability company, S corporation, estate, or trust, where the income of the taxpayer is taxed to the individual owner(s) of the business entity, the taxpayer must provide a copy of the certificate to each of the owners with a statement showing how the credit is to be allocated among the individual owners of the business entity. An individual owner is to attach a copy of the certificate of entitlement and the statement of allocation of the assistive device credit to the individual’s state income tax return.

42.14(2) Definitions. The following definitions are applicable to this rule:

“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.

“Business entity” means partnership, limited liability company, S corporation, estate, or trust, where the income of the business is taxed to each of the individual owners of the business, whether the individual owner is a partner, member, shareholder, or beneficiary.

“Disability” means the same as defined in Iowa Code section 225C.46. Therefore, “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:

1. Homosexuality or bisexuality;

2. Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders, or other sexual behavior disorders;

3. Compulsive gambling, kleptomania, or pyromania;

4. Psychoactive substance abuse disorders resulting from current illegal use of drugs;

5. Alcoholism.

“Employee” means an individual who is employed by the small business who meets the criteria in Treasury Regulation § 31.3401(c)–1(b), which is the definition of an employee for federal income tax withholding purposes. An individual who receives self–employment income from the small business is not to be considered an employee of the small business for purposes of this rule.

“Small business” means that the business either had gross receipts in the tax year before the current tax year of $3 million or less or employed not more than 14 full–time employees during the tax year prior to the current tax year.

“Workplace modifications” means physical alterations to the office, factory, or other work environment where the disabled employee is working or is to work.

42.14(3) Allocation of credit to owners of a business entity. If the taxpayer that was entitled to an assistive device credit is a business entity, the business entity is to allocate the allowable credit to each of the individual owners of the entity on the basis of each owner’s pro–rata share of the earnings of the entity to the total earnings of the entity. Therefore, if a partnership has an assistive device credit for a tax year of $2.500 and one partner of the partnership receives 25 percent of the earnings of the partnership, that partner would receive an assistive device credit for the tax year of $625 or 25 percent of the total assistive device credit of the partnership.

This rule is intended to implement 2000 Iowa Acts, chapter 1194, section 11.

ITEM 12. Amend the implementation clause for rule 701—43.8(422) as follows:

This rule is intended to implement Iowa Code sections 422.120 and 422.122 and Iowa Code Supplement section 422.121 as amended by 2000 Iowa Acts, chapter 1058.

ITEM 13. Amend rule 701—46.1(422) as follows:

Amend subrule 46.1(2) by adopting the following new paragraph “i”:

i. Withholding from distributions made on or after January 1, 2001, from pensions, annuities, individual retirement accounts, deferred compensation plans, and other retirement plans. Effective for distributions made on or after January 1, 2001, from pension plans, annuities, individual retirement accounts, deferred compensation plans, and other retirement plans, state income tax is generally required to be withheld from the distributions when federal income tax is being withheld from the distributions, unless one of the exceptions for withholding in this paragraph applies. For purposes of this paragraph, the term “pensions and other retirement plans” includes all distributions of retirement benefits covered by the partial exemption described in rule 701—40.47(422).

State income tax is not required to be withheld from a distribution from a pension or other retirement plan if the distribution is an income which is not subject to Iowa income tax, such as a distribution of railroad retirement benefits. State income tax is also not required to be withheld from a pension plan or other retirement plan if the amount of the distribution is $500 per month or less or if the taxable amount is $500 or less and the person receiving the distribution is eligible for the partial exemption of retirement benefits described in rule 701—40.47(422), if the state taxable amount can be determined by the payee of the distribution. There is also no requirement for withholding state income tax from a pension or other retirement plan if the distribution is $1,000 per month or less or if the taxable amount is $1,000 or less and the person receiving the distribution is eligible for the partial exemption of retirement benefits described in rule 701— 40.47(422) and that person has indicated an intention to file a joint state income tax return for the year in which the distribution is made. In instances where the distribution amount or the taxable amount is more than $500 per month but less than $6,000 for the year, no state income tax will be required to be withheld, if the person receiving the distribution is eligible for the partial exemption of retirement benefits.

Finally, there is no requirement for withholding from a lump–sum payment from a qualified retirement plan if the lump–sum payment is $6,000 or less, the recipient is eligible for the partial exemption of distributions from pensions and other retirement plans, and the lump–sum payment is the only distribution from the retirement plan in the year.

Amend the implementation clause as follows:

This rule is intended to implement Iowa Code sections 96.3, 99B.21, 99D.16, 99E.19, and 99F.18, 422.5 and 422.16 and Iowa Code sections section 422.7, 422.15, and 422.16 as amended by 1998 2000 Iowa Acts, House File 2513 chapter 1194.

ITEM 14. Amend rule 701—52.7(422) by adopting the following new subrules and amending the implementation clause as follows:

52.7(3) Research activities credit for tax years beginning in 2000. Effective for tax years beginning on or after January 1, 2000, the taxes imposed for corporate income tax purposes will be reduced by a tax credit for increasing research activities.

a. The credit equals the sum of the following:

(1) Six and one–half percent of the excess of qualified research expenses during the tax year over the base amount for the tax year based upon the state’s apportioned share of the qualifying expenditures for increasing research activities.

(2) Six and one–half percent of the basic research payments determined under Section 41(e)(1)(A) of the Internal Revenue Code during the tax year based upon the state’s apportioned share of the qualifying expenditures for increasing research activities.

The state’s apportioned share of the qualifying expenditures for increasing research activities is a percent equal to the ratio of qualified research expenditures in this state to total qualified research expenditures.

b. In lieu of the credit computed under paragraph “a” of this subrule, a taxpayer may elect to compute the credit amount for qualified research expenses incurred in this state in a manner consistent with the alternative incremental credit described in Section 41(c)(4) of the Internal Revenue Code. The taxpayer may make this election regardless of the method used by the taxpayer on the taxpayer’s federal income tax return. The election made under this paragraph is for the tax year and the taxpayer may use another method or this same method for any subsequent tax year.

For purposes of this alternative research credit computation, the credit percentages applicable to qualified research expenses described in clauses (i), (ii), and (iii) of Section 41(c)(4)(A) of the Internal Revenue Code are 1.65 percent, 2.20 percent, and 2.75 percent, respectively.

c. For purposes of this subrule, the terms “base amount,” “basic research payment,” and “qualified research expense” mean the same as defined for the federal credit for increasing research activities under Section 41 of the Internal Revenue Code, except that for purposes of the alternative incremental credit described in paragraph “b” of this subrule, such amounts are limited to research activities conducted within this state. For purposes of this rule, “Internal Revenue Code” means the Internal Revenue Code in effect on January 1, 2000.

d. A shareholder in an S corporation may claim the pro–rata share of the Iowa credit for increasing research activities on the shareholder’s individual return. The S corporation must provide each shareholder with a schedule showing the computation of the corporation’s Iowa credit for increasing research activities and the shareholder’s pro–rata share. The shareholder’s pro–rata share of the Iowa credit for increasing research activities must be in the same ratio as the shareholder’s pro–rata share in the earnings of the S corporation.

Any research credit in excess of the corporation’s tax liability less the credits authorized in Iowa Code sections 422.33, 422.91 and 422.111 may be refunded to the taxpayer or credited to the estimated tax of the corporation for the following year.

52.7(4) Research activities credit for an eligible business. Effective for tax years beginning on or after January 1, 2000, an eligible business may claim a tax credit for increasing research activities in this state during the period the eligible business is participating in the new jobs and income program with the Iowa department of economic development. An eligible business must meet all the conditions listed under Iowa Code section 15.329, which include requirements to make an investment of $10 million as indexed for inflation and the creation of a minimum of 50 full–time positions. The research credit authorized in this subrule is in addition to the research activities credit described in subrule 42.2(10) or the research credit described in subrule 52.7(3).

a. The additional research activities credit for an eligible business is computed under the criteria for computing the research activities credit under subrule 42.2(10) or under subrule 52.7(3), depending on which of those subrules the initial research credit was computed. The same qualified research expenses and basic research expenses apply in computation of the research credit for an eligible business as were applicable in computing the credit in subrule 42.2(10) or 52.7(3). In addition, if the alternative incremental credit method was used to compute the initial research credit under subrule 42.2(10) or 52.7(3), that method would be used to compute the research credit for an eligible business. Therefore, if a taxpayer that met the qualifications of an eligible business had a research activities credit of $200,000 as computed under subrule 52.7(3), the research activities credit for the eligible business would result in an additional credit for the taxpayer of $200,000.

b. If the eligible business is a partnership, S corporation, limited liability company, estate or trust where the income from the eligible business is taxed to the individual owners of the business, these individual owners may claim the additional research activities credit allowed to the eligible business. The research credit is allocated to each of the individual owners of the eligible business on the basis of the pro–rata share of that individual’s earnings from the eligible business.

52.7(5) Corporate tax research credit for increasing research activities within a quality jobs enterprise zone. Effective for tax years beginning on or after January 1, 2000, the taxes imposed for corporate income tax purposes will be reduced by a tax credit for increasing research activities within an area designated as a quality jobs enterprise zone. This credit for increasing research activities is in lieu of the research activities credit described in subrule 42.2(10) or the research activities credit described in subrule 52.7(3).

a. The credit equals the sum of the following:

(1) Thirteen percent of the excess of qualified research expenses during the tax year over the base amount for the tax year based upon the state’s apportioned share of the qualifying expenditures for research activities.

(2) Thirteen percent of the basic research payments determined under Section 41(e)(1)(A) of the Internal Revenue Code during the tax year based upon the state’s apportioned share of the qualifying expenditures for increasing research activities. The state’s apportioned share of the qualifying expenditures for increasing research activities is a percent equal to the ratio of qualified research expenditures in the quality jobs enterprise zone to total qualified research expenditures.

b. In lieu of the credit computed under paragraph “a” of this subrule, a taxpayer may elect to compute the credit amount for qualified research expenses incurred in the quality jobs enterprise zone in a manner consistent with the alternative incremental credit described in section 41(c)(4) of the Internal Revenue Code. The taxpayer may make this election regardless of the method used by the taxpayer on the taxpayer’s federal income tax return. The election made under this paragraph is for the tax year and the taxpayer may use another method or this same method for any subsequent tax year. For purposes of this alternative research credit computation, the credit percentages applicable to qualified research expenses described in clauses (i), (ii), and (iii) of Section 41(c)(4)(A) of the Internal Revenue Code are 3.30 percent, 4.40 percent, and 5.50 percent, respectively.

c. For purposes of this rule, the terms “base amount,” “basic research payment,” and “qualified research expense” mean the same as defined for the federal credit for increasing research activities under Section 41 of the Internal Revenue Code, except that for purposes of the alternative incremental credit described in subrule 52.7(3) of this rule, such amounts are limited to research activities conducted within the quality jobs enterprise zone. For purposes of this rule, “Internal Revenue Code” means the Internal Revenue Code in effect on January 1, 2000.

d. Any research credit in excess of the corporation’s tax liability for the taxable year may be refunded to the taxpayer or credited to the corporation’s tax liability for the following year.

This rule is intended to implement Iowa Code Supplement section 422.33 as amended by 1998 2000 Iowa Acts, Senate File 2537 chapter 1194.

ITEM 15. Amend subrule 52.10(3) to read as follows:

52.10(3) Research activities credit. An additional research credit of 6½ percent of the state’s apportioned share of “qualifying expenditures” is available to an eligible business. The credit is available for qualifying expenditures incurred after May 1, 1994. The additional research activities credit is in addition to the credit set forth in Iowa Code section 422.33(5).

See rule 701—52.7(422) for the computation of the research activities credit.

Any credit in excess of the tax liability for the tax year may be carried forward seven years or until used, whichever is the earlier. This is in contrast to the research activities credit in Iowa Code section 422.33(5) where any credit in excess of the tax liability for the tax year may be carried forward until used or refunded. For tax years ending on or after July 1, 1996, the additional research activities credit may at the option of the taxpayer be refunded.

If the business is a partnership, S corporation, limited liability company, or an estate or trust electing to have the income taxed directly to an individual, an individual may claim the credit. The amount claimed by an individual must be based on the individual’s pro–rata share of the individual’s earnings of the partnership, S corporation, limited liability company, or estate or trust.

This rule is intended to implement Iowa Code Supplement section 15.333 as amended by 1999 Iowa Acts, chapter 172 and section 15.335 as amended by 2000 Iowa Acts, chapter 1194.

ITEM 16. Amend rule 701—52.14(422), numbered paragraph “3” and the implementation clause, as follows:

3. Research activities credit as provided in Iowa Code section 15.335 (see rule 701—52.10(15)) for tax years ending after May 1, 1994, but prior to tax years beginning on or after January 1, 2000) and subrule 52.7(5) for the research credit for increasing research activities within a quality jobs enterprise zone for tax years beginning on or after January 1, 2001.

This rule is intended to implement Iowa Code section 15E.186 and Iowa Code Supplement section 15A.9(8) creat–ed as amended by 1997 2000 Iowa Acts, House File 724 chapter 1194.

ITEM 17. Amend 701—Chapter 52 by adopting the following new rule:

701—52.17(422) Assistive device tax credit. Effective for tax years beginning on or after January 1, 2000, a taxpayer who is a small business that purchases, rents, or modifies an assistive device or makes workplace modifications for an individual with a disability who is employed or will be employed by the taxpayer may qualify for an assistive device tax credit, subject to the availability of the credit. The assistive device credit is equal to 50 percent of the first $5,000 paid during the tax year by the small business for the purchase, rental, or modification of an assistive device or for making workplace modifications. Any credit in excess of the tax liability may be refunded or applied to the taxpayer’s tax liability for the following tax year. If the taxpayer elects to take the assistive device tax credit, the taxpayer is not to deduct for Iowa income tax purposes any amount of the cost of the assistive device or workplace modification that is deductible for federal income tax purposes. A small business will not be eligible for the assistive device credit if the device is provided for an owner of the small business unless the owner is a bona fide employee of the small business.

52.17(1) Submitting applications for the credit. A small business wanting to receive the assistive device tax credit must submit an application for the credit to the Iowa department of economic development and provide other information and documents requested by the Iowa department of economic development. If the taxpayer meets the criteria for qualification for the credit, the Iowa department of economic development will issue the taxpayer a certificate of entitlement for the credit. However, the aggregate amount of assistive device tax credits that may be granted by the Iowa department of economic development to all small businesses during a fiscal year cannot exceed $500,000. The certificate for entitlement of the assistive device credit is to include the taxpayer’s name, the taxpayer’s address, the taxpayer’s tax identification number, the estimated amount of the tax credit, the date on which the taxpayer’s application was approved and the date when it is anticipated that the assistive device project will be completed and a space on the application where the taxpayer is to enter the date that the assistive device project was completed. The certificate for entitlement will not be considered to be valid for purposes of claiming the assistive device credit on the taxpayer’s Iowa income tax return until the taxpayer has completed the assistive device project and has entered the completion date on the certificate of entitlement form. The tax year of the small business in which the assistive device project is completed is the tax year for which the assistive device credit may be claimed. For example, in a case where taxpayer A received a certificate of entitlement for an assistive device credit on September 15, 2000, and completed the assistive device workplace modification project on January 15, 2001, taxpayer A could claim the assistive device credit on taxpayer A’s 2001 Iowa return assuming that taxpayer A is filing returns on a calendar–year basis.

The department of revenue and finance will not allow the assistive device credit on a taxpayer’s return if the certificate of entitlement or a legible copy of the certificate is not attached to the taxpayer’s income tax return. If the taxpayer has been granted a certificate of entitlement and the taxpayer is an S corporation, where the income of the taxpayer is taxed to the individual owner(s) of the business entity, the taxpayer must provide a copy of the certificate to each of the shareholders with a statement showing how the credit is to be allocated among the individual owners of the S corporation. An individual owner is to attach a copy of the certificate of entitlement and the statement of allocation of the assistive device credit to the individual’s state income tax return.

52.17(2) Definitions. The following definitions are applicable to this subrule:

“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.

“Business entity” means partnership, limited liability company, S corporation, estate or trust, where the income of the business is taxed to the individual owners of the business, whether the individual owner is a partner, member, shareholder, or beneficiary.

“Disability” means the same as defined in Iowa Code section 225C.46. Therefore, “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:

1. Homosexuality or bisexuality;

2. Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders, or other sexual behavior disorders;

3. Compulsive gambling, kleptomania, or pyromania;

4. Psychoactive substance abuse disorders resulting from current illegal use of drugs;

5. Alcoholism.

“Employee” means an individual who is employed by the small business who meets the criteria in Treasury Regulation § 31.3401 (c)–1(b), which is the definition of an employee for federal income tax withholding purposes. An individual who receives self–employment income from the small business is not to be considered to be an employee of the small business for purposes of this rule.

“Small business” means that the business either had gross receipts in the tax year before the current tax year of $3 million or less or employed not more than 14 full–time employees during the tax year prior to the current tax year.

“Workplace modifications” means physical alterations to the office, factory, or other work environment where the disabled employee is working or is to work.

52.17(3) Allocation of credit to owners of a business entity. If the taxpayer that was entitled to an assistive device credit is a business entity, the business entity is to allocate the allowable credit to each of the individual owners of the entity on the basis of each owner’s pro–rata share of the earnings of the entity to the total earnings of the entity. Therefore, if an S corporation has an assistive device credit for a tax year of $2,500 and one shareholder of the S corporation receives 25 percent of the earnings of the corporation, that shareholder would receive an assistive device credit for the tax year of $625 or 25 percent of the total assistive device credit of the S corporation.

This rule is intended to implement Iowa Code Supplement section 422.33 as amended by 2000 Iowa Acts, chapter 1194.

Pursuant to the authority of Iowa Code subsection 125.7(4), the Substance Abuse Commission proposes to adopt a new Chapter 9, “Regions for Substance Abuse Prevention and Treatment,” Iowa Administrative Code.

This new chapter proposes to establish rules for substance abuse prevention and treatment regions, particularly to establish a process for changes in service areas. Iowa Code section 125.12 outlines the comprehensive program for substance abuse treatment and requires the division of the state into regions. The Director, with the review of the Commission, established regions many years ago. No provision was made at that time for responding to requests for changes in the service areas of the regions. These rules propose a process for that action.

Any interested person may make written comments or suggestions on or before January 4, 2001. Such written materials should be directed to Janet Zwick, Director, Division of Health Promotion, Prevention, and Addictive Behaviors, Department of Public Health, Lucas State Office Building, 321 E. 12th Street, Des Moines, Iowa 50319–0075.

A public hearing on these proposed rules will be held on January 4, 2001, at 1 p.m. in Room 417, Lucas State Office Building, 321 E. 12th Street, Des Moines, Iowa.

These rules are intended to implement Iowa Code section 125.12.

The following new chapter is proposed.

CHAPTER 9
REGIONS FOR SUBSTANCE ABUSE PREVENTION AND TREATMENT

643—9.1(125) Service areas established. The department of public health, with the consent of the commission on substance abuse, has established regions for substance abuse prevention and treatment service areas. Substance abuse assessment, prevention and education, and outpatient and follow–up treatment and rehabilitation shall be available in each service area. Emergency treatment provided by a facility affiliated with or part of the medical service of a general hospital, inpatient treatment, residential treatment, and halfway house treatment shall be available within reasonable driving distance of the service area.

643—9.2(125) Request for a change in service areas. Any existing service provider may file an application with the director to change an existing service area.

643—9.3(125) Application. The application shall include the following:

1. The name, address, and description of the applicant;

2. A description of the proposed change;

3. The applicant’s rationale in support of the change in service area;

4. The number of clients the applicant proposes to serve and the proposed increase in quality or quantity of services to these clients;

5. A description of community support for the change; and

6. The names and addresses of all affected parties, including existing service providers.

643—9.4(125) Notification of affected parties. Within ten calendar days of receipt of a complete application, the director shall provide written notification to any affected parties identified in the application and shall allow any affected parties so notified 30 calendar days to submit written information in support of, or in opposition to, the application.

643—9.5(125) Public hearing. The director may hold a public hearing at which the applicant and any affected parties may provide an oral presentation with respect to their positions. The director shall give notice to the applicant and all affected parties ten calendar days prior to holding the hearing. The hearing shall not be a contested case hearing as that term is defined in Iowa Code chapter 17A.

643—9.6(125) Proposed decision. The director shall issue a written proposed decision which includes findings of fact and either approves or rejects the application. In issuing this decision, the director shall consider the proposed application, other information received from the applicant, information received from affected parties, the terms of any relevant contract, city and county lines, population concentrations, and existing substance abuse treatment and prevention services.

643—9.7(125) Change during term of contract. The director shall not approve an application which would change a service area during the term of an existing contract.

643—9.8(125) Commission review. The director’s proposed decision shall be reviewed by the commission at its next regularly scheduled meeting. The commission shall review all of the materials considered by the director, as described in rule 9.6(125), and the proposed decision and vote to approve or reject the director’s proposed decision.

643—9.9(125) Commission decision. The commission’s decision shall be issued in writing and shall be final agency action for the purposes of Iowa Code chapter 17A.

These rules are intended to implement Iowa Code section 125.12.

Pursuant to the authority of Iowa Code sections 68B.4, 307.10 and 307.12, the Department of Transportation hereby gives Notice of Intended Action to amend Chapter 26, “Consent for the Sale of Goods and Services,” Iowa Administrative Code.

Iowa Code section 68B.4 requires the Department of Transportation to adopt rules specifying the method by which officials may obtain agency consent for the sale of goods and services. The following proposed amendments are made to update this chapter. The definition of “official” is expanded to include division directors and reflects the current definition in Iowa Code chapter 68B. The Director of Transportation is authorized to grant consent to sales by the division directors. The person who grants the consent to sales by the Director of Transportation is changed from the Deputy Director of Transportation to the Division Director of the Director’s Staff Division. The Department of Transportation no longer has a Deputy Director of Transportation.

The Department does not intend to grant waivers for this requirement because the requirement is statutory and cannot be waived.

Any person or agency may submit written comments concerning these proposed amendments or may submit a written request to make an oral presentation. The comments or request shall:

1. Include the name, address, and telephone number of the person or agency authoring the comments or request.

2. Reference the number and title of the proposed rule, as given in this Notice, that is the subject of the comments or request.

3. Indicate the general content of a requested oral presentation.

4. Be addressed to the Department of Transportation,Director’s Staff Division, 800 Lincoln Way, Ames, Iowa50010; fax (515)239–1639; Internet E–mail addresstracy.george@dot.state.ia.us.

5. Be received by the Director’s Staff Division no later than December 19, 2000.

A meeting to hear requested oral presentations is scheduled for Thursday, December 21, 2000, at 1 p.m. in the Small Materials Conference Room of the Department of Transportation, 800 Lincoln Way, Ames, Iowa.

The meeting will be canceled without further notice if no oral presentation is requested.

These amendments are intended to implement Iowa Code chapter 68B.

Proposed rule–making actions:

ITEM 1. Amend rule 761—26.1(68B), definition of “official,” as follows:

“Official” means the director of transportation, or a member of the transportation commission, or a division director.

ITEM 2. Amend subrule 26.4(2) as follows:

26.4(2) Who may consent. The deputy director of transportation director of the director’s staff division is authorized to consent to sales by the director of transportation. The director of transportation is authorized to consent to sales by a member of the transportation commission or a division director.

Pursuant to the authority of Iowa Code sections 307.10, 307.12, and 321E.15, the Department of Transportation hereby gives Notice of Intended Action to amend Chapter 511, “Special Permits for Operation and Movement of Vehicles and Loads of Excess Size and Weight,” Iowa Administrative Code.

Chapter 511 is being amended to comply with current law as follows:

Items 7, 8 and 9 implement 1997 Iowa Acts, chapter 104, section 28 (Iowa Code section 321E.11). These proposed amendments permit movement 30 minutes prior to sunrise to 30 minutes following sunset.

Item 17 implements 1997 Iowa Acts, chapter 100, section 11 (Iowa Code section 321E.14). This proposed amendment adds a fee for an annual oversize/overweight permit. The fee amount for an all–systems permit is also added.

Items 25 and 26 implement 1999 Iowa Acts, chapter 13, section 20 (Iowa Code Supplement section 321E.8). These proposed amendments increase the maximum length and height limits allowed for an indivisible vehicle or indivisible load when moved on a highway under an annual permit.

Item 30 implements 1997 Iowa Acts, chapter 100, section 8 (Iowa Code section 321E.8) and 1999 Iowa Acts, chapter 13, section 20 (Iowa Code Supplement section 321E.8). This proposed amendment adds a new rule concerning the issuance of annual oversize/overweight permits.

Items 34 and 35 implement 1999 Iowa Acts, chapter 13, section 20 (Iowa Code Supplement section 321E.8). These proposed amendments increase the maximum length and height limits allowed for an indivisible vehicle or indivisible load when moved on a highway under an all–systems permit.

Item 48 implements 1997 Iowa Acts, chapter 100, sections 7, 8 and 9 (Iowa Code sections 321E.7, 321E.8 and 321E.9) and 1999 Iowa Acts, chapter 13, section 20 (Iowa Code Supplement section 321E.8). This proposed amendment allows a crane to have a maximum of 24,000 pounds per axle for movement under a single–trip permit and also adds the maximum axle weights and maximum gross weights for vehicles and loads moved under an annualoversize/overweight permit. These amendments also add information concerning the maximum gross weights for vehicles and loads moved under an all–systems permit.

Other amendments are made to Chapter 511 to add or amend definitions, add references to the annual oversize/overweight permit where needed, rewrite some introductory sentences to explain the various types of permits, add or amend implementation clauses, eliminate obsolete language, provide clarification, edit language for consistency, correct form numbers and reflect the renumbering of rules to allow for the addition of the annual oversize/overweight permit rule.

Waiver provisions are not included because Iowa Code chapter 321E and this chapter already provide for exceptions to be made in special or emergency situations.

Any person or agency may submit written comments concerning these proposed amendments or may submit a written request to make an oral presentation. The comments or request shall:

1. Include the name, address, and telephone number of the person or agency authoring the comments or request.

2. Reference the number and title of the proposed rule, as given in this Notice, that is the subject of the comments or request.

3. Indicate the general content of a requested oral presentation.

4. Be addressed to the Department of Transportation, Director’s Staff Division, 800 Lincoln Way, Ames, Iowa 50010; fax (515)239–1639; Internet E–mail address tracy. george@dot.state.ia.us.

5. Be received by the Director’s Staff Division no later than December 19, 2000.

A meeting to hear requested oral presentations is scheduled for Thursday, December 21, 2000, at 10 a.m. in the DOT Conference Room at Park Fair Mall, 100 Euclid Avenue, Des Moines, Iowa.

The meeting will be canceled without further notice if no oral presentation is requested.

These amendments are intended to implement Iowa Code chapters 321 and 321E.

Proposed rule–making actions:

ITEM 1. Amend rule 761—511.1(321E) by adopting the following new definition in alphabetical order:

“Primary roads” or “primary road system” is defined in Iowa Code section 306.3. The primary road system includes the interstate road system.

ITEM 2. Amend rule 761—511.1(321E) by rescinding the definition of “special or emergency situation” and by adopting the following new definition in alphabetical order:

“Special or emergency situation” means one or more of the following:

1. Circumstances where the movement is necessary to cooperate with cities, counties, other state agencies or other states in response to a national or other disaster.

2. Circumstances where the movement is necessary to cooperate with national defense officials.

3. Circumstances where the movement is necessary to cooperate with public or private utilities in order to maintain their public services.

4. Circumstances where the movement is essential to ensure safety and protection of any person or property due to an event such as, but not limited to, pollution of natural resources, a potential fire or an explosion.

5. Circumstances where weather or transportation problems create an undue hardship for citizens of the state of Iowa.

6. Circumstances where the movement involvesemergency–type vehicles.

7. Uncommon or extraordinary circumstances where the movement is essential to the existence of an Iowa business and the move may be accomplished without causing undue hazards to the safety of the traveling public or undue damage to private or public property.

8. Other unique circumstances that warrant the issuance of a permit as determined by the permit–issuing authority.

ITEM 3. Amend rule 761—511.1(321E) by adopting the following new implementation clause:

This rule is intended to implement Iowa Code sections 321E.9, 321E.15, 321E.27, 321E.29 and 321E.34.

ITEM 4. Amend subrule 511.2(1) as follows:

511.2(1) Applications, forms, instructions and restrictions are available by mail from the Office of Motor Carrier Services, Iowa Department of Transportation, P.O. Box 10382, Des Moines, Iowa 50306–0382; or in person at its location in Park Fair Mall, 100 Euclid Avenue, Des Moines, Iowa; by telephone at (515)237–3264; or by facsimile at (515)237–3257. Permits may be obtained electronically upon making application to the office of motor carrier services.

ITEM 5. Rescind and reserve subrule 511.2(3).

ITEM 6. Amend subrule 511.2(4), introductory paragraph, as follows:

511.2(4) Except as provided in subrule 511.7(5) 511.7(6) and rule 511.12 511.13(321,321E), permits may be issued only for the transporting of a single article which exceeds statutory size or weight limits or both, and which cannot reasonably be divided or reduced to statutory size and weight limits. However, permits may be issued for the transporting of property consisting of more than one article when:

ITEM 7. Amend subrule 511.3(3) as follows:

511.3(3) Movement shall be permitted only during the hours from one–half hour before sunrise to one–half hour after sunset unless it is established by the permit–issuing authority that the movement can be better accomplished at another period of time because of traffic volume conditions.

ITEM 8. Amend subrule 511.3(4) as follows:

511.3(4) Except as provided in Iowa Code section 321.457, no movement shall be permitted on the holidays of Memorial Day, Independence Day and Labor Day, after 12 noon on days preceding these holidays and holiday weekends, during holiday weekends, or during special events when abnormally high traffic volumes can be expected. A holiday weekend occurs when the holiday falls on Friday, Saturday, Sunday or Monday. No movement shall be permitted until one–half hour before sunrise on the day after the holiday or holiday weekend.

ITEM 9. Amend subrule 511.3(7), introductory paragraph, as follows:

511.3(7) Continuous moves. Vehicles and loads may travel by permit between one–half hour after sunset and one–half hour before sunrise if, in addition to the general provisions and general requirements specified by the permit, the following conditions are met.

ITEM 10. Amend rule 761—511.3(321E) by adopting the following new implementation clause:

This rule is intended to implement Iowa Code sections 321E.1 and 321E.11.

ITEM 11. Amend rule 761—511.4(321E), introductory paragraph, as follows:

761—511.4(321E) Permits. Permits issued shall be in writing and may be either single–trip permits, multitrip permits, or annual permits, annual oversize/overweight or all–systems permits.

ITEM 12. Amend paragraph 511.4(1)“a” as follows:

a. Annual, multitrip and single–trip permits Permits for movement on the primary road system may be obtained in person, by telephone, facsimile, wire service, electronic communication, or by mail from the office of motor carrier services at the address in subrule 511.2(1).

ITEM 13. Amend paragraph 511.4(2)“a” as follows:

a. Applications for permits for movement on the primary road system shall be made and permits shall be issued on departmental Forms 442009, 442047, 442058 and 442051, 442058 and 442059.

ITEM 14. Amend paragraph 511.4(2)“b” as follows:

b. Any applications to other permit–issuing authorities made upon Forms 442009, 442047, 442058 and 442051, 442058 and 442059 shall be sufficient and accepted as properly made by these authorities.

ITEM 15. Amend paragraph 511.4(3)“a” as follows:

a. An annual Annual, annual oversize/overweight, and all–systems permit permits shall expire on the last day of the month one year from the date of issuance.

ITEM 16. Amend rule 761—511.5(321E), parenthetical implementation, as follows:

ITEM 17. Amend rule 761—511.5(321,321E) by renumbering subrules 511.5(2) to 511.5(7) as 511.5(4) to 511.5(9), respectively, and by adopting new subrules 511.5(2) and 511.5(3) as follows:

511.5(2) Annual oversize/overweight permit. A fee of $300 shall be charged for each annual oversize/overweight permit, payable prior to the issuance of the permit.

511.5(3) All–systems permit. A fee of $120 shall be charged for each annual all–systems permit, payable prior to the issuance of the permit.

ITEM 18. Amend renumbered subparagraph 511.5(9)“b”(4) as follows:

(4) Account privileges may be permanently canceled after written notice to the account holder when the requirements listed in paragraph 511.5(7)“b” 511.5(9)“b” are not met.

ITEM 19. Amend rule 761—511.5(321,321E) by adopting the following new implementation clause:

This rule is intended to implement Iowa Code sections 321.12, 321.122, 321E.14, 321E.29 and 321E.29A.

ITEM 20. Amend paragraph 511.6(1)“a” as follows:

a. Public liability insurance in the amounts of $100,000 bodily injury each person, $200,000 bodily injury each occurrence, and $50,000 property damage with an expiration date to cover the tenure of the annual, annual oversize/overweight, all–systems, multitrip or single–trip permit shall be required. In lieu of filing with the permit–issuing authority, a copy of the current certificate of public liability insurance in these amounts shall be carried in the vehicle for which the permit has been issued.

ITEM 21. Amend rule 761—511.6(321E) by adopting the following new implementation clause:

This rule is intended to implement Iowa Code section 321E.13.

ITEM 22. Amend rule 761—511.7(321,321E), introductory paragraph, as follows:

761—511.7(321,321E) Issuance of annual Annual permits. Annual permits for travel on state highways may be are issued for the following: indivisible vehicles or indivisible loads for travel when the dimensions of the vehicle or load exceed statutory limits but the weight is within statutory limits. Routing is subject to embargoed bridges and roads and posted speed limits. Annual permits are issued for the following:

ITEM 23. Amend paragraph 511.7(1)“b” as follows:

b. Length. 75 feet 0 inches overall. Front–end projection may, at the discretion of the permit–issuing authority, exceed 15 feet.

ITEM 24. Amend paragraphs 511.7(1)“d,” 511.7(4)“d,” 511.7(5)“d” and 511.7(6)“d” by striking the words “See rule 511.11(321,321E)” and inserting in lieu thereof the words “See rule 511.12(321,321E).”

ITEM 25. Amend subrule 511.7(2) as follows:

511.7(2) Vehicles with indivisible loads, including con–struction machinery, mobile homes and factory–built structures, provided the following are not exceeded:

a. Width. 14 feet 6 inches.

b. Length. 100 120 feet 0 inches overall. Front–end projection may, at the discretion of the permit–issuing authority, exceed 15 feet.

c. Height. Statutory: 13 15 feet 6 5 inches.

d. Weight. See rule 511.11 511.12(321,321E).

e. Distance. Movement is restricted to 50 miles unless trip routes are obtained from the office of motor carrier services. Trip routes are valid for five days.

ITEM 26. Amend subrule 511.7(3) as follows:

511.7(3) Vehicles with indivisible loads, including con–struction machinery, mobile homes and factory–built structures, provided the following are not exceeded:

a. Width. 16 feet 0 inches.

b. Length. 100 120 feet 0 inches.

c. Height. 13 15 feet 6 5 inches.

d. Weight. See rule 761—511.11 511.12(321,321E).

e. Distance. Trip routes must be obtained from the office of motor carrier services.

ITEM 27. Amend paragraph 511.7(4)“b” as follows:

b. Length. 100 feet 0 inches overall. Front–end projection may, at the discretion of the permit–issuing authority, exceed 15 feet.

ITEM 28. Rescind paragraph 511.7(5)“e.”