Pages 620 to 664 include ARC 1047B to ARC 1074B

Administrative rules review committee 610

Filed, Surety bonds, 4.23(4), 5.9
ARC 1066B 649

Schedule for rule making 608

Publication procedures 609

Administrative rules on CD–ROM 609

Agency identification numbers 618

CITATION OF ADMINISTRATIVE RULES 607

Notice, Nursing facilities—accountability measures,
81.6 ARC 1054B 620

Filed, Medicaid—application and eligibility
determination process, 50.2(3), 50.4, 75.1,
75.21(5), 75.22(1), 75.25, 76.1, 76.7, 76.10(5),
76.12(7), 76.13, 177.4(10) ARC 1048B 649

Filed, Increase—state supplementary assistance
(SSA) residential care facility (RCF) and in–home
health related care (IHHRC) reimbursement rates
and SSI cost–of–living adjustment, 52.1, 177.4
ARC 1049B 652

Filed Emergency After Notice, Rent subsidy
program, 53.1 to 53.8 ARC 1050B 647

Filed, Interim assistance reimbursement program,
57.1, 57.2, 57.6, 57.7 ARC 1051B 653

Filed, Graduate medical education and
disproportionate share fund payments,
79.1(5) ARC 1052B 655

Filed, Medicaid providers, 79.2(3), 79.6 to 79.8,
79.14 ARC 1053B 656

Filed, Adoption, independent living, and family
planning services; cost–of–living increase—
statewide average cost of shelter care, 150.3(5)
ARC 1055B 656

Notice, Acquisition of information technology
devices or services, ch 13 ARC 1056B 623

Notice, Code of administrative judicial conduct,
10.29 ARC 1060B 631

Filed, Bingo and raffle prize limits; net receipt
determination, 100.6, 100.34, 102.2(3)
ARC 1059B 657

Filed, Low–income housing tax credits, 12.1,
12.2 ARC 1074B 659

Notice, Certified Type V flotation devices,
37.13 ARC 1071B 632

Notice, State aids to navigation, 41.2(1)
ARC 1073B 633

Notice, Motor sizes for artificial lakes and
marshes, 45.4, 45.5 ARC 1072B 634

Notice, State parks and recreation areas, 61.2,
61.4, 61.5 ARC 1070B 635

Notice, Endangered, threatened and special
concern animal species, 77.2 ARC 1067B 636

Filed, Waivers or variances from administrative
rules, ch 11 ARC 1069B 660

Filed, Wild turkey spring hunting, 98.3, 98.6,
98.10(1), 98.12, 98.14 ARC 1068B 660

Notice, Materials for board review, 12.1
ARC 1058B 637

Notice, Podiatrists, chs 219, 220; 222.5, 222.9;
chs 224, 225 ARC 1057B 638

Summarized list 613

Filed, Waivers, variances, and exceptions,
5.1(5), 5.15, 10.1, 10.222 ARC 1047B 662

Notice, Interest rate—calendar year 2002,
10.2(21) ARC 1064B 644

Notice, Ethanol blended gasoline tax credit,
42.16, 52.19 ARC 1062B 644

Filed, Eligible housing business tax credit,
52.15, 58.8 ARC 1061B 662

Filed, Tax rates—motor fuel and undyed
special fuel, 67.1, 68.2, 68.5(1), 68.8(19)
ARC 1063B 662

Filed, Taxation—manufactured home
communities, property, and real estate transfer,
74.1, 74.5, 74.6, 75.3, 78.3, 78.4, 79.1, 80.1,
80.8(5), 80.9(2), 80.11, 80.12(2), 80.14(1),
80.16 to 80.18 ARC 1065B 663

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

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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.

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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:

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(Price includes 22 volumes of rules and index, plus a one–year subscription to the Code Supplement and the Iowa Administrative Bulletin. Additional binders may be purchased for $11.75 plus $.71 sales tax.)

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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 publication of rule–making documents, we request that you send your document(s) as an attachment(s) to an E–mail message, addressed to both of the following:

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2. Alternatively, you may send a 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.

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Containing: Iowa Administrative Code (updated through June 2001)
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For free brochures and order forms contact:

Legislative Service Bureau
Attn: Ms. Stephanie Runde
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 a two–day meeting on Tuesday, November 13, 2001, at 10 a.m. and
Wednesday, November 14, 2001, at 9 a.m. in Room 116, State Capitol, Des Moines, Iowa. The following rules will be reviewed:

HUMAN SERVICES DEPARTMENT[441] (Cont’d)

NURSING BOARD[655] (Cont’d)

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]

INFORMATION TECHNOLOGY DEPARTMENT[471]

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 for[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 section 249A.4, the Department of Human Services proposes to amend Chapter 81, “Nursing Facilities,” appearing in the Iowa Administrative Code.

Effective July 1, 2001, the Department at the direction of the General Assembly adopted a modified price–based case–mix system for reimbursing non–state–owned nursing facilities for Medicaid recipients. The system is based on recognition of the provider’s allowable costs for two components, a direct care component and a non–direct care component, plus a potential excess payment allowance. The case–mix system reflects the relative acuity or need for care of the Medicaid recipients in the nursing facility.

At the time the General Assembly directed the Department to implement the case–mix reimbursement methodology, it also directed the Department to initiate a system to measure a variety of elements to determine a nursing facility’s capacity to provide quality of life and appropriate access to Medicaid recipients in a cost–effective manner.

The Department is to implement a process to collect data for these measurements and to develop procedures to increase nursing facility reimbursements based upon a nursing facility’s achievement of multiple favorable outcomes as determined by these measurements. Any increased reimbursement shall not exceed 3 percent of the calculation of the modified price–based case–mix reimbursement median. The Department shall include the increased reimbursement in the calculation of the modified price–based payment rate beginning July 1, 2002.

This additional reimbursement is not to be included when calculating the rates for Medicare–certified hospital–based nursing facilities, state–operated nursing facilities, and special population nursing facilities.

These amendments implement the accountability measures for nursing facilities developed by the Department with input from the nursing facility associations and others interested in long–term care services. These measures are nursing facility characteristics that indicate the quality of care, efficiency, or commitment to care for certain resident populations. These characteristics are objective, measurable, and, when considered in combination with each other, deemed to have a correlation to a resident’s quality of life and care. While any single measure does not ensure the delivery of quality care, a nursing facility’s achievement of multiple measures suggests that quality is an essential element in the facility’s delivery of resident care.

In order for a nursing facility to qualify for additional Medicaid reimbursement for accountability measures, it must achieve a minimum score of 3 points. The maximum available points are 11. Additional Medicaid reimbursement will be available in the following amounts.

The ten measures and the maximum allowable points are as follows:

1. Deficiency–free survey—2 points.

2. Substantial compliance with survey—1 point (cannot receive points for both a deficiency–free survey and substantial compliance).

3. Nursing hours provided—2 points maximum.

4. Resident satisfaction—1 point.

5. Resident advocate committee resolution rate—1 point.

6. High employee retention rate—1 point.

7. High occupancy rate—1 point.

8. Low administrative costs and low use of contracted nursing—1 point.

9. Special licensure classification—1 point.

10. High Medicaid utilization—1 point.

The Department’s fiscal agent shall use Form 470–0030, Financial and Statistical Report, to calculate whether nursing facilities meet measures 3, 6, 7, 8, and 10 above. The Department shall request the Department of Inspections and Appeals to furnish a report to the Department to determine whether the nursing facilities meet measures 1, 2, and 9 above. The Department shall request the Office of the Long–term Care Ombudsman to furnish a report to the Department to determine whether the nursing facilities meet measure 5 above. Nursing facilities wishing to receive a point for measure 4 above must distribute Form 470–3890, Resident Opinion Survey, to their residents or their responsible parties and have an independent party collect the surveys and tabulate them on Form 470–3891, Resident Opinion Survey Transmittal Report.

These amendments do not provide for waiver to the Medicaid nursing facility reimbursement system because all facilities should be subject to the same system.

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, 1305 East Walnut, Des Moines, Iowa 50319–0114, on or before November 21, 2001.

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

Cedar Rapids—November 27, 2001 10:30 a.m.

Cedar Rapids Regional Office

Iowa Building, Seventh Floor Conference Room

411 Third Street S.E.

Cedar Rapids, Iowa 52401

Council Bluffs—November 27, 2001 9 a.m.

Council Bluffs Regional Office

Administrative Conference Room

417 E. Kanesville Boulevard

Council Bluffs, Iowa 51501

Davenport—November 28, 2001 10 a.m.

Davenport Area Office

Bicentennial Building, Fifth Floor Conference Room

428 Western

Davenport, Iowa 52801

Des Moines—November 28, 2001 10 a.m.

Des Moines Regional Office

City View Plaza, Conference Room 102

1200 University

Des Moines, Iowa 50314

Mason City—November 26, 2001 11 a.m.

Mason City Area Office

Mohawk Square, Liberty Room

22 North Georgia Avenue

Mason City, Iowa 50401

Ottumwa—November 28, 2001 10 a.m.

Ottumwa Area Office

Conference Room 3

120 East Main

Ottumwa, Iowa 52501

Sioux City—November 27, 2001 1:30 p.m.

Sioux City Regional Office

Fifth Floor

520 Nebraska Street

Sioux City, Iowa 51101

Waterloo—November 27, 2001 10 a.m.

Waterloo Area Office

Pinecrest Office Building, 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 section 249A.4 and 2001 Iowa Acts, House File 740, section 4, subsection 4.

The following amendments are proposed.

ITEM 1. Amend subrule 81.6(16), introductory paragraph, as follows:

81.6(16) Establishment of the direct care and non–direct care patient–day–weighted medians and modified price–based reimbursement rate. This subrule provides for the establishment of the modified price–based reimbursement rate. Paragraphs “a” through “f g” describe the calculations presented in sequential order. The first step (paragraph “a”) determines the per diem direct care and non–direct care component costs. The second step (paragraph “b”) normalizes the per diem direct care component costs to remove cost variations associated with different levels of resident case mix. The third step (paragraph “c”) calculates the patient–day–weighted medians for the direct care and non–direct care components that are used in subsequent steps to establish rate component limits and excess payment allowances if any. The fourth step (paragraph “d”) calculates the potential excess payment allowance. The fifth step (paragraph “e”) calculates the reimbursement rate that is further subjected to the rate component limits in step six (paragraph “f”). The seventh step (paragraph “g”) calculates the additional reimbursement based on accountability measures available beginning July 1, 2002.

ITEM 2. Rescind subrule 81.6(16), paragraph “g,” and adopt the following new paragraph “g” in lieu thereof:

g. Accountability measures. Additional reimbursement for non–state–owned facilities, based on accountability measures, is available beginning July 1, 2002, as provided in this paragraph. Accountability measures are nursing facility characteristics that indicate the quality of care, efficiency, or commitment to care for certain resident populations. These characteristics are objective, measurable, and, when considered in combination with each other, deemed to have a correlation to a resident’s quality of life and care. While any single measure does not ensure the delivery of quality care, a nursing facility’s achievement of multiple measures suggests that quality is an essential element in the facility’s delivery of resident care.

Additional reimbursement for accountability measures is not available to Medicare–certified hospital–based nursing facilities, state–operated nursing facilities, or special population nursing facilities. Therefore, data from these facility types shall not be used when determining eligibility for or amount of additional reimbursement based on accountability measures.

In order for a nursing facility to qualify for additional Medicaid reimbursement for accountability measures, it must achieve a minimum score of 3 points. The maximum available points are 11. Additional Medicaid reimbursement will be available in the following amounts.

The fiscal agent shall award points based on the following ten measures:

(1) Deficiency–free survey.

1. Standard. Facilities shall be deficiency–free on the latest annual state and federal licensing and certification survey and any subsequent surveys, complaint investigations, or revisit investigations. If a nursing facility’s only scope and severity deficiencies are an “A” level pursuant to 42 CFR, Part 483, Subparts B and C, as amended to July 30, 1999, the facility shall, for purposes of this measure, be deemed to have a deficiency–free survey. Surveys are considered complete when all appeal rights have been exhausted.

2. Measurement period. The measurement period shall be the latest annual survey completed on or before December 31 of each year and any subsequent surveys, complaint investigations, or revisit investigations completed between the annual survey date and December 31.

3. Value. 2 points.

4. Source. The department shall request that the department of inspections and appeals furnish by May 1 of each year a listing of nursing facilities that have met the standard.

(2) Substantial compliance with survey.

1. Standard. Facilities shall be in substantial compliance with state and federal licensing and certification surveys and any subsequent surveys, complaint investigations, or revisit investigations. Substantial compliance is defined as surveys, complaint investigations, or revisit investigations conducted within a calendar year that do not result in “F” level or greater deficiencies and that have no more than a combined total of three deficiencies at an “E” level or higher, pursuant to 42 CFR, Part 483, Subparts B and C, as amended to July 30, 1999.

2. Measurement period. The measurement period shall be the latest annual survey completed on or before December 31 of each year and any subsequent surveys, complaint investigations, or revisit investigations completed between the annual survey date and December 31.

3. Value. 1 point. (A nursing facility that achieves adeficiency–free survey according to subparagraph (1) cannot also receive a point value for this standard.)

4. Source. The department shall request that the department of inspections and appeals furnish by May 1 of each year a listing of nursing facilities that have met the standard.

(3) Nursing hours provided.

1. Standard. A nursing facility’s per resident day nursing hours are at or above the fiftieth percentile of per resident day nursing hours. Nursing hours include those of registered nurses, licensed practical nurses, certified nursing assistants, rehabilitation nurses and other contracted nursing services. Nursing hours shall be normalized to remove variations in staff hours associated with different levels of resident case mix. The case–mix index used to normalize nursing hours shall be the facility cost report period case–mix index.

2. Measurement period. The measurement period shall be calculated using the latest financial and statistical report with a fiscal year end of December 31 or earlier.

3. Value. 1 point for a nursing facility that falls between the fiftieth and seventy–fifth percentiles. 2 points for a nursing facility at or above the seventy–fifth percentile.

4. Source. The fiscal consultant shall calculate whether the nursing facility has met this measure from Form 470–0030, Financial and Statistical Report.

(4) Resident satisfaction.

1. Standard. A nursing facility shall be at or above the fiftieth percentile of resident satisfaction. Resident satisfaction shall be measured using Form 470–3890, Resident Opinion Survey. To be considered for this measure, a nursing facility must have a minimum survey response rate of 35 percent from its residents or their responsible parties.

2. Measurement period. For purposes of determining the July 1, 2002, rate, Form 470–3890, Resident Opinion Survey, must be completed by April 1, 2002, and Form 470–3891, Resident Opinion Survey Transmittal Report, must be submitted to the department by May 1, 2002. For purposes of determining rates for years on or after July 1, 2003, Form 470–3890, Resident Opinion Survey, may be completed anytime during the period September through December of the preceding year and the transmittal report submitted to the department by April 1 of the following year.

3. Value. 1 point.

4. Source. The nursing facility shall distribute Form 470–3890, Resident Opinion Survey, and instructions to all residents or their responsible parties. The nursing facility shall have an independent party collect and compile the results of the survey and communicate the results to the department by May 1 of 2002 and April 1 of each year thereafter on Form 470–3891, Resident Opinion Survey Transmittal Report. The department or its contractor shall calculate whether the nursing facility has met this measure.

(5) Resident advocate committee resolution rate.

1. Standard. A nursing facility shall have a resident advocate committee resolution rate of issues and grievances pursuant to 321—Chapter 9 at or above 60 percent.

2. Measurement period. For the purpose of determining the July 1, 2002, rates, the resolution rate shall be computed for the period October 1, 2001, through March 31, 2002. For the purpose of determining rates for July 1, 2003, and thereafter, the resident advocate committee resolution rate shall be computed using data from the immediately preceding calendar year.

3. Value. 1 point.

4. Source. The department shall request that the office of the long–term care ombudsman furnish by May 1 of each year a listing of nursing facilities that have met the standard.

(6) High employee retention rate.

1. Standard. A nursing facility shall have an employee retention rate at or above the fiftieth percentile.

2. Measurement period. The high employee retention rate shall be calculated using Schedule I of the latest Form 470–0030, Financial and Statistical Report, with a fiscal year end of December 31 or earlier.

3. Value. 1 point.

4. Source. The department’s fiscal consultant shall calculate whether the nursing facility has met this measure from Form 470–0030, Financial and Statistical Report, Schedule I.

(7) High occupancy rate.

1. Standard. A nursing facility shall have an occupancy rate at or above 95 percent. “Occupancy rate” is defined as the percentage derived when dividing total patient days based on census logs by total bed days available based on the number of authorized licensed beds within the facility.

2. Measurement period. The high occupancy rate shall be calculated using the latest Form 470–0030, Financial and Statistical Report, with a fiscal year end of December 31 or earlier.

3. Value. 1 point.

4. Source. The department’s fiscal consultant shall calculate whether the nursing facility has met this measure from Form 470–0030, Financial and Statistical Report.

(8) Low administrative costs and low utilization of contracted nursing.

1. Standard. A nursing facility’s per resident day administrative costs and per resident day contracted nursing hours shall each be at or below the fiftieth percentile. Contracted nursing hours shall be normalized to remove variations in staff hours associated with different levels of resident case mix. The case–mix index used to normalize contracted nursing hours shall be the facility cost report period case–mix index.

2. Measurement period. The low administrative costs and low utilization of contracted nursing shall be calculated using the latest Form 470–0030, Financial and Statistical Report, with a fiscal year end of December 31 or earlier.

3. Value. 1 point.

4. Source. The department’s fiscal consultant shall calculate whether the nursing facility has met this measure from Form 470–0030, Financial and Statistical Report.

(9) Special licensure classification.

1. Standard. Nursing facility units shall be licensed for the care of residents with chronic confusion or a dementing illness (CCDI units).

2. Measurement period. The measurement period shall be the facility’s status on December 31 of each year.

3. Value. 1 point.

4. Source. The department shall request that the department of inspections and appeals furnish the department by May 1 of each year a listing of nursing facilities that were licensed as CCDI units as of December 31.

(10) High Medicaid utilization.

1. Standard. A nursing facility shall have Medicaid utilization at or above the fiftieth percentile. Medicaid utilization is determined by dividing total nursing facility Medicaid days by total nursing facility patient days.

2. Measurement period. The Medicaid utilization rate shall be calculated using the latest Form 470–0030, Financial and Statistical Report, with a fiscal year end of December 31 or earlier.

3. Value. 1 point.

4. Source. The department’s fiscal consultant shall calculate whether the nursing facility has met this measure from Form 470–0030, Financial and Statistical Report.

Pursuant to the authority of Iowa Code section 14B.105, the Information Technology Council hereby gives Notice of Intended Action to adopt new Chapter 13, “Acquisition of Information Technology Devices or Services,” Iowa Administrative Code.

These proposed rules prescribe the methods the Department will use to acquire information technology devices or services. The rules generally prescribe the content that may be included in a bidding document and also provide for a vendor appeal process. The rules set forth the approval proc–ess for participating agencies making information technology purchases, the waiver process for Information Technology Council standards and the process to appeal a decision by the Department regarding the application of information technology standards.

Any interested person may make written or electronic suggestions or comments on the proposed rules on or before November 20, 2001. Such material should be directed to the Rules Administrator, Information Technology Department, Level B, Hoover State Office Building, Des Moines, Iowa 50319; fax (515)281–6137; E–mail jim.day@itd.state ia.us.

Also, there will be a public hearing on November 21, 2001, at 9:30 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 to confine their remarks to the subject of the rules. Persons with special needs should contact the Information Technology Department prior to the hearing if accommodations need to be made.

These rules are intended to implement Iowa Code chapter 14B.

The following new chapter is proposed.

CHAPTER 13
ACQUISITION OF INFORMATION TECHNOLOGY DEVICES OR SERVICES

471—13.1(14B) Statement of policy. It shall be the policy of the department to obtain the most productive and efficient information technology devices and services that meet or exceed standards established by the department and council. The purpose of the procurement process employed by the department is to ensure that, when the department uses a competitive bidding process, all vendors shall be given a fair and reasonable opportunity to offer their products to the department and that no vendor shall be given preferential treatment or special privileges.

13.2(1) Application. These rules shall apply to acquisitions of information technology devices and services by the department or the department on behalf of a participating agency. Iowa Code section 14B.109, Iowa Code chapter 18, related procurement rules, and interagency agreement(s) between the information technology department and the department of general services may cause certain provisions (i.e., bidding, award, vendor appeal, processes and procedures) of these rules to be implemented by the department of general services in accordance with general services’ purchasing statutes and regulations. When purchasing information technology devices or services, general services may use the acquisition methods described in these rules but reserve for itself its own appeal rules.

13.2(2) Purchases by the department. In the event there is no agreement between the department and the department of general services or the departments’ successors, or there has been a failure in the agreement between the department and the department of general services or the departments’ successors, upon approval by the department of management these rules shall apply to purchases by the department or purchases by the department on behalf of a participating agency.

13.2(3) Definitions. As used in this chapter unless the context otherwise requires:

“Acquisition” means the procurement, purchase, lease, lease/purchase, acceptance of, contracting for, obtaining title to, or use of information technology items.

“Agency” means a unit of state government, which is an authority, board, commission, committee, council, department, examining board, or independent agency as defined in Iowa Code section 7E.4, including but not limited to each principal central department enumerated in Iowa Code section 7E.5. “Agency” does not mean any of the following: the office of the governor or the office of an elective constitutional or statutory officer; the general assembly, or any office or unit under its administrative authority; the judicial branch, as provided in Iowa Code section 602.1102; or a political subdivision of the state or its offices or units, including but not limited to a county, city, or community college.

“Bid document” means a document issued by the department for the purpose of acquiring information technology devices and services. The department will issue formal bid documents and informal bid documents. These bid documents are described below:

1. Formal bid documents may include the following:

• Invitation to Bid (ITB), in which cost is the sole criterion for choice among responsive bidders. ITBs may be used when the requirements and specifications for acquisitions of information technology devices or services are generally known and available from competing vendors;

• Request for Proposals (RFP) and Requests forServices/Strategy (RFS), in which there are specifications, requirements, terms and conditions or criteria other than cost considered in the selection of the vendor;

• Invitation to Qualify (ITQ), which is a process to pre–qualify and authorize vendors to perform services or provide goods to the state;

• Reverse auctions.

2. Informal bid documents may be used in connection with an informal bidding process. Acquisitions are eligible for informal bidding depending on the value of the item to be purchased. The department may solicit bids using an informal process that includes but is not limited to the following:

• Reverse auction;

• Telephone bids when the department provides requirements orally and documents oral responses from competitive vendors to identical specifications;

• Facsimile bids when the department utilizes facsimile machines to provide requirements and specifications to vendors and to receive vendor responses;

• E–mail or the Internet.

The evaluation criteria may be limited to price and past performance or other relevant information deemed necessary by the department. Informal bid documents may include acquisitions of commercial items.

“Commercial acquisition” means an item procured by competitive bidding.

“Commercial item” means:

1. Any item, other than real property, that is of a type customarily used for nongovernmental purposes and that has been sold, leased or licensed to the general public, or has been offered for sale, lease or license to the general public.

2. Any item, other than real property, that evolved from an item described in this definition through advances in technology or performance and that is not yet available in the commercial marketplace in time to satisfy the delivery requirements of the department.

3. Any item, other than real property, that would satisfy a criterion expressed in paragraph “1” or “2” of this definition, but for:

• Modifications of a type customarily available in the commercial marketplace, or

• Minor modifications of a type not customarily available in the commercial marketplace made to meet the department’s requirements. “Minor modifications” means modifications that do not significantly alter the nongovernmental function or essential physical characteristics of an item or component or change the purpose of a process. Factors to be considered in determining whether a modification is minor include the value and size of the modification and the comparative value and size of the final product. Dollar values and percentages may be used as guideposts, but are not conclusive evidence that a modification is minor.

4. Any combination of items meeting the requirements of paragraph “1” or “2” of this definition that are of a type customarily combined and sold in combination to the general public.

5. Installation services, maintenance services, repair services, training services and other services if such services are procured for support of an item referred to in paragraph “1,” “2,” “3,” or “4” of this definition and if the source of such services offers such services to the general public and the department contemporaneously and under similar terms and conditions.

6. Services of a type offered and sold competitively in substantial quantities in the commercial marketplace based on established catalog or market prices for specific tasks performed under standard commercial terms and conditions. This does not include services that are sold based on hourly, daily or other periodic rates without an established catalog or market price for a specific service performed.

7. Any item or combination of items referred to in paragraphs “1” through “6,” notwithstanding the fact that the item or combination of items is transferred between or among separate divisions, subsidiaries or affiliates of a contractor.

8. A nondevelopmental item, if the department determines the item was developed exclusively at private expense and sold in substantial quantities on a competitive basis to other governmental entities.

9. Any item described in paragraph “1” of this definition that requires only minor modifications of a type customarily available in the commercial marketplace in order to meet the requirements of the procuring department or agency.

10. Any item of supply being produced that does not meet the criteria of paragraph “1” or “2” of this definition solely because the item is not yet in use.

“Competitive bidding process” means selecting information technology devices or services by means of evaluating vendor responses received resulting from the issuance of bid documents.

“Cooperative procurement agreement” means agreement with and cooperating with other governmental entities for the purpose of pooling funds or leveraging economies of scale.

“Department” means the information technology department.

“Disposition” means disposal of information technology devices.

“Emergency procurement” means an acquisition resulting from an emergency situation. An emergency situation means a condition:

1. That threatens public health, welfare or safety, or

2. In which the department must act to preserve critical services or programs, or

3. In which the situation is a result of events or circumstances not reasonably foreseeable. For example, and only by way of illustration and not limitation, the following events would constitute an emergency situation:

• Delays by contractors, or

• Delays in transportation, or

• An unanticipated volume of work.

Emergency procurement shall not be used as a solution for hardships resulting from neglect, poor planning or lack of organization by the department. The department shall use its best efforts to negotiate a fair and reasonable price, and thoroughly document the procurement action. The department shall also check vendors’ qualifications and verify insurance coverage (if applicable), information on warranty offered, and any other data pertinent to the procurement. An emergency procurement shall be limited in scope and duration to meet the emergency and to satisfy economic considerations for the department.

“General services” means the department of general services or its successor agency.

“Governmental entity” means any unit of government in the executive, legislative, or judicial branch of government; an agency or political subdivision; any unit of another state government, including its political subdivisions; and any unit of the United States government.

“Informal competition” means acquisition using an informal bid document or commercial acquisition.

“Information technology council” or “council” means the 17–member council, established by Iowa Code chapter 14B, that oversees the information technology department and the information technology activities of participating agencies.

“Information technology device” means equipment or associated software, including programs, languages, procedures, or associated documentation, used in operating the equipment which is designed for utilizing information stored in an electronic format. “Information technology device” includes but is not limited to computer systems, computer networks, and equipment used for input, output, processing, storage, display, scanning, and printing.

“Information technology services” means services designed to provide functions, maintenance, and support of information technology devices, or services including, but not limited to, any of the following:

1. Computer systems application development and maintenance.

2. Systems integration and interoperability.

3. Operating systems maintenance and design.

4. Computer systems programming.

5. Computer systems software support.

6. Planning and security relating to information technology devices.

7. Data management consultation.

8. Information technology education and consulting.

9. Information technology planning and standards.

10. Establishment of local area network and workstation management standards.

“Negotiated contract” means an agreement that meets the requirements of Iowa Code section 14B.109(4)“b.”

“Participating agency” means any agency other than: the state board of regents and institutions operated under its authority; the public broadcasting division of the department of education; the department of transportation’s mobile radio network; the department of public safety’s law enforcement communications systems; and the Iowa telecommunications and technology commission, with respect to information technology that is unique to the Iowa Communications Network.

“Procurement authority” means an agency authorized by its enabling statute to purchase goods and services.

“Procurement standards” means standards established by the council with respect to the procurement of information technology by all participating agencies.

“Proposed acquisition(s)” means any point of entry in the procurement process involving a decision by a participating agency to purchase an information technology device or service.

“Reverse auction” means a repetitive competitive bidding process, performed in a manner most convenient to the department including electronically, that allows vendors to submit one or more bids with each bid having a lower cost to the state than the previous bid. The award shall be made based upon the requirements of Iowa Code section 14B.109(4)“d.”

“Service” or “services” means information technology services as defined by Iowa Code section 14B.101. A contract for services exists when the predominant factor, the thrust, and the purpose of the contract as reasonably stated are for the rendition of services. When there is a mixed contract for goods and services, 2001 Iowa Acts, House File 687, applies when the predominant factor, the thrust and the purpose of the contract as reasonably stated are for the rendition of services with goods incidentally involved. See Bonebrake v. Cox, 499 F.2d 951 (8th Cir. 1974).

“Software” means an ordered set of instructions or statements that causes information technology devices to process data, and includes any program or set of programs, procedures, or routines used to employ and control capabilities of computer hardware. As used in these rules, software also includes but is not limited to an operating system, compiler, assembler, utility, library resource, maintenance routine, application, or computer networking program nonmechanized and nonphysical components, arrangements, algorithms, procedures, programs, services, sequences and routines utilized to support, guide, control, direct, or monitor information technology equipment or applications.

“Sole source procurement” means:

1. An acquisition that results from a single source or a single product that the department determines is the only one qualified or eligible or is quite obviously the most qualified, eligible or acceptable to supply the information technology device(s) or to perform a service.

2. The work to be performed is of such a specialized nature or related to a specific geographic location that only a single source, by virtue of experience, expertise, or proximity to the project, could most satisfactorily provide the information technology device or the service.

“Standards” means standards established according to Iowa Code section 14B.102 that include but are not limited to specifications, requirements, processes, or initiatives, which have been established by the department to foster compatibility, interoperability, connectivity, and use of information technology devices and services among agencies.

“Systems software” means software designed to support, guide, control, direct, or monitor information technology equipment, other system software, mechanical and physical components, arrangements, procedures, programs, services or routines.

“Upgrade” means additional hardware or software enhancements, extensions, features, options, or devices to support, enhance, or extend the life or increase the usefulness of previously procured information technology devices.

“Vendor” means a person, firm, corporation, partnership, business or other commercial entity legally doing business in the state and which offers for sale or lease information technology equipment, services or software.

13.3(1) Request for acquisition. Before a participating agency issues a request for proposal, invitation to bid, purchase order or any other purchasing document, or otherwise seeks to purchase information technology devices or services or both through the department or general services, or on its own purchase authority, the purchase of the information technology devices or services or both must be approved by the department as meeting the procurement standards of the council and the standards of the department, regardless of price. Otherwise the participating agency shall not purchase the information technology devices or services.

The proposed acquisition request shall include, as applicable:

a. Agency name.

b. Agency unit.

c. Agency unit address.

d. Contact person with phone number and E–mail address.

e. A description, functional specifications, or make or model of the device.

f. Intended purpose for which this device will be used and what function it will perform when operable.

g. Date needed.

h. Location and platform where the device(s) or service(s) will be used and what systems, program activity or processes it will support or affect.

i. A listing of vendors, or contracts, offering the device(s) or service(s), if known.

j. Any other pertinent information.

13.3(2) Requests to install and test equipment, software, or features to determine a product’s usefulness, efficiency, compatibility, connectivity, or other appropriate reason must be submitted to the information technology department for approval. Equipment, software, or features shall not be installed prior to the agency’s obtaining the department’s approval.

13.3(3) Review process for proposed acquisitions.

a. The department shall review a proposed acquisition submitted by a participating agency with or without procurement authority for compliance with standards of the council and the standards of the department regardless of the method of procurement proposed by the participating agency including, by way of example and not of limitation, a request for proposal, an invitation to bid, a reverse auction, a request for items from a prequalified vendor, a purchase from a negotiated contract, by auction, by some other procurement method or a purchase from some other government contract. Review is required at all of the following points of entry in the procurement process:

(1) Preparation of bid documents or purchasing documents;

(2) Issuance of bid documents or purchasing documents;

(3) The issuance of a notice of intent to award;

(4) A change in the scope of work provided the change is consistent with the bidding documents;

(5) Before the commencement of work on a project or for the purchase of a device or service;

(6) Before final payment is made for the project or the purchase of an item.

Once a contract is signed, ongoing approval from the department is not required provided the purchase(s) remains consistent with the approved scope of work included in the contract. If a participating agency amends its contract to materially change the scope of work originally contemplated by the bid documents, the participating agency shall be required to obtain department approval for the change.

b. The department shall also review the proposed acquisition to determine whether the proposed acquisition is fiscally responsible and will efficiently and effectively make use of resources across the enterprise of state government.

c. Final payment shall be withheld pending a review by the department of the work performed or the information technology device or service delivered. If the work or the device or service is not consistent with either the contract or department standards, the vendor shall not be paid. All contracts for information technology devices or services shall contain a clause indicating that payment is subject to the department’s approval that the work performed or the item purchased complies with department standards.

d. Approved requests will be forwarded to the agency contact person and appropriate procurement authority contacts, and the procurement may proceed as determined by the agency or the procurement authority. When requests are not approved, the agency contact will be notified of available options, which include modification and resubmission of the request or cancellation of the request, or the agency may request a waiver. If the participating agency seeks a waiver from the council’s procurement standards, the waiver is pursuant to Iowa Code section 14B.105.

e. The department shall provide pertinent advice to a procurement authority regarding the procurement of information technology, including opportunities for aggregation with other acquisitions.

f. In the interest of economy and efficiency, the department may acquire, as provided by these rules, any device or service requested by or on behalf of an agency and accordingly bill the agency through the department’s regular process for the devices or services or for the use of the devices or services.

g. Requests not complying with procurement standards or department standards shall be disapproved and devices or services shall not be procured unless a waiver is granted pursuant to Iowa Code section 14B.105. In the event a participating agency does not seek a waiver and disagrees with a decision of the council or the director regarding a proposed acquisition, the participating agency may appeal to the governor pursuant to Iowa Code section 679A.19.

h. Waiver requests for procurement standards.

(1) Waiver requests. In the event a participating agency is advised that its proposed acquisition is disapproved and the participating agency seeks a waiver of procurement standards, it must file its written waiver request with the department within 20 calendar days of the date of the disapproval. The waiver request shall describe in detail the reasons supporting the waiver request.

(2) Department to forward request to council. The department shall forward to all members of the council a copy of the waiver request along with a statement indicating the reasons why the proposed acquisition did not comply with procurement standards. The department’s statement of reasons must be filed with the council at least 15 days prior to the meeting at which the members of the council will consider the waiver request. The participating agency shall have an opportunity to respond to the written submission of the department. The response of the participating agency shall be filed with the council at least 3 days prior to the day of the meeting at which the members of the council will consider the waiver request.

(3) Hearing. The council may conduct a hearing with the department and the participating agency regarding the waiver request at its next scheduled meeting after the date the waiver request is received. Additional evidence may be offered at the time of the hearing. Oral proceedings shall be recorded either by mechanized means or by certified shorthand reporters. Parties requesting that the hearing be recorded by certified shorthand reporters shall bear the costs. Copies of tapes of oral proceedings or transcripts recorded by certified shorthand reporters shall be paid for by the requester.

(4) Burden of proof. The burden of proof is on the participating agency to show that good cause exists to grant a waiver to the participating agency to complete the proposed acquisition.

(5) The council may grant a waiver only of procurement standards. The council does not have authority to waive standards established by the department pursuant to Iowa Code section 14B.102. The council shall notify the participating agency in writing of its decision to grant or deny the waiver. In the event a waiver is denied, the participating agency may appeal to the governor pursuant to Iowa Code section 679A.19.

i. Requests not complying with department standards or requests that are not fiscally responsible shall be disapproved and the device or service shall not be procured. In the event a request is rejected because it is not fiscally responsible, the participating agency may appeal to the department of management. The department of management has authority pursuant to Iowa Code section 8.35 to make inquiries regarding the receipts, custody and application of state funds, existing organization, activities and methods of business of the departments and establishments, assignments of particular activities to particular services and regrouping of such services.

j. The approval and review process is illustratedat http://www.state.ia.us/government/its/Administrative% 20Rules/index.htm.

13.4(1) A number of acquisitions options exist for acquiring information technology devices and services. Among the options are: issuing bid documents, use of a cooperative procurement agreement previously established, use of a negotiated contract, use of a reverse auction, use of contracts let by other governmental entities, use of prequalified vendors, use of other competitive bidding tools including but not limited to commercial acquisition or other agreements as appropriate.

13.4(2) When the department purchases devices or services from contracts let by other governmental entities, the department may purchase devices or services provided that the vendor is in agreement and the terms and conditions of the purchase do not adversely impact the governmental entity which was the original signatory to the contract.

13.4(3) Commercial acquisition.

a. The department shall perform a requirements analysis by defining what the department, agency or procuring authority needs to acquire.

b. The department shall conduct market research with the extent of that research based on the dollar value, urgency, complexity, and type of device or service needed.

c. When a commercial item satisfies the requirements analysis and the market research, the department may elect in its sole discretion to purchase the item based on any of the following criteria, if applicable, or other criteria developed by the department:

(1) Price;

(2) Past performance;

(3) Quality;

(4) Service;

(5) Other criteria as determined by the department.

d. The department may allow bidders to propose more than one solution that will meet the needs of the department. Each solution will be evaluated as a separate offer.

e. The department shall post a notice in a public place and on the Internet for a period of at least ten days to advise bidders of the availability of the solicitation. The department shall comply with the targeted small business requirements. The department may also mail or E–mail the solicitation to selected bidders or bidders that have expressed an interest in receiving notice of bid documents issued by the department.

f. In response to the bid document, bidders may submit information, brochures, past performance information, pricing and other information requested by the department only in a format specified by the department in the bid documents.

g. Proposals will be evaluated using the evaluation criteria described in the bid documents.

h. Recommendations for contract award shall be made to the director. With the director’s approval, a notice of intent to award shall be issued to the successful vendor.

i. Commercial acquisition may be used to purchase information technology devices and services valued over the life of the contract including optional renewals in any amount up to $500,000.

13.4(4) Invitations to qualify vendors.

a. The department shall make available to participating agencies lists of vendors capable of delivering information technology devices or services who have been prequalified by the department. The purposes of using an invitation to qualify vendors to supply information technology devices or services include but are not limited to the following:

(1) Standardize state terms and conditions relating to all services provided by vendors, thereby avoiding repetition and duplication.

(2) Accomplish information technology consulting assignments in a manner consistent with standards developed and adopted by the department.

(3) Implement a pay–for–performance model directly linking payments to vendors and defined results thereby obtained as required by 2001 Iowa Acts, House File 687.

(4) Consolidate information technology and project rec–ords, including performance assessments, in one location for reference and review.

(5) Reduce time required for solicitation of proposals from vendors for individual projects and staff augmentation.

b. The department shall develop the criteria for vendor qualification based upon its own expertise, information and research, the needs of participating agencies and these rules. The department shall develop evaluation criteria for each invitation to qualify. The department shall issue invitations to qualify on an as–needed basis. The invitations to qualify shall remain open bidding documents until the department elects to discontinue the invitation to qualify or until five, six or seven years from the date the initial invitation to qualify was issued by the department depending on the number of option years elected by the department for a particular vendor group. Vendors may apply for eligibility on a continuous basis.

c. Vendors seeking to qualify as vendors eligible to perform work for participating agencies shall be required to meet all the criteria established by the department for a particular type of work. The department shall continuously evaluate applications by vendors for placement on a qualified vendor list for a particular type of work. A vendor shall not be eligible to perform work for a participating agency unless it has a signed contract with the department and has been selected by the participating agency as part of a competitive process when appropriate. A vendor shall be eligible to receive orders from participating agencies for a period of five years with two one–year options. Thereafter, the vendor shall be required to requalify for eligibility for the vendor list.

d. Before a participating agency may purchase a device or service from a prequalified vendor, it must obtain all of the required approvals from the department consistent with paragraph 13.3(3)“a.” In the event the participating agency decides to purchase information technology devices or services from vendors that have been prequalified by the department, the participating agency or the department on behalf of the participating agency shall be required to issue a request for information technology devices or services directed to eligible vendors for a particular information technology device or service. All eligible vendors shall be notified by E–mail of the request for service. Vendors shall be responsible for obtaining a copy of the request for service from the department’s Web site or the Web site of the participating agency. A participating agency may also send a copy of the request for services to particular eligible vendors.

A participating agency or the department shall select vendors on the basis of criteria contained in the bid document. The request for information technology devices or services must be sufficiently detailed so that vendors can provide price and experience information. A participating agency may request a response from vendors in 24 hours or more from the time the request for information technology devices or services was issued. Responses may be received by facsimile or E–mail as directed by the participating agency or department.

Before a bid shall be awarded by the participating agency, the department shall approve the vendor selected to perform the work. All vendors submitting a bid shall be notified of the decision of the participating agency or the department regarding the selection of a vendor to perform the work described in the request for information technology services. Aggrieved vendors may appeal a decision to award a specific contract or to deny eligibility pursuant to these rules.

e. The process is illustrated at http://www.state.ia.us/government/its/Administrative%20Rules/index.htm.

13.5(1) Thresholds.

a. Information technology devices or services with a value over the life of the contract including optional renewals in amounts up to $10,000 are exempt from the bidding requirements described in this chapter. However, participating agencies and procurement authorities must obtain prior department approval for any information technology purchase regardless of the value of the device or service.

b. Reserved.

13.5(2) Bid requirements. The department shall use competitive bid procedures in the following circumstances:

a. Information technology devices with a value over the life of the contract including optional renewals in amounts between $10,000 and $100,000 are subject to informal competition or may be purchased using commercial acquisition.

b. Information technology devices with a value over the life of the contract including optional renewals in amounts in excess of $100,000 are subject to some form of procurement in which competition is an element of the process and includes but is not limited to the forms of competitive bidding described in these rules.

c. Information technology services with a value over the life of the contract including optional renewals in amounts between $10,000 and $24,999 are subject to informal competition or may be purchased using commercial acquisition.

d. Information technology services with a value over the life of the contract including optional renewals in amounts of $25,000 or more are subject to some form of procurement in which competition is an element of the process and includes but is not limited to the forms of competitive bidding described in these rules.

13.5(3) Notice.

a. When the department acquires information technology devices or services with a value of less than $100,000 over the life of the contract including optional renewals, the department shall simultaneously post a notice of its intent to procure in the following locations:

(1) On the department’s Web site for a period of not less than ten days;

(2) On the targeted small business Web site 48 hours prior to the time the notice is posted on the department’s Web site or posted in a public place; and

(3) In a public place.

The notice shall indicate that it is a notice to prospective bidders, contain the bid due date and time of opening, describe the devices or services to be purchased, and provide the name, address and telephone number of the person to be contacted to obtain official bidding documents.

b. When the department acquires information technology devices or services with a value of $100,000 or more over the life of the contract including optional renewals, the department shall simultaneously post or publish a notice of its intent to procure in the following locations:

(1) At least once in a newspaper of general circulation;

(2) At least once in an electronic source of general circulation;

(3) On its Web site for a period of at least ten days; and

(4) On the targeted small business Web site 48 hours prior to the time the notice is published in a paper of general circulation or on the department’s Web site.

The notice shall indicate that it is a notice to prospective bidders, contain the bid due date and time of opening, describe the devices or services to be purchased, and provide the name, address and telephone number of the person to be contacted to obtain official bidding documents.

c. When the department issues bid documents, the department may elect to conduct the entire procurement electronically. In such case, paper copies of the bidding documents will be available. In order for a vendor to receive a paper copy of the bid documents, the vendor shall make a public records request. The department shall provide a paper copy of the bid documents in accordance with Iowa Code chapter 22 or other applicable law governing public records requests.

13.5(4) In the event the department elects to conduct any acquisition electronically or otherwise, it may request that vendors submit a letter of intent to participate in the acquisition. In the event a vendor fails to submit a letter of intent when requested, the department may declare the vendor ineligible to bid on the particular acquisition.

13.5(5) The bid specifications shall be based upon the needs of the participating agency, appropriate standards, appropriate procurement standards, plans, policies, initiatives, enterprise resource use, aggregation of state resources and recommendations of the department.

13.5(6) When applicable, and in the best interest of the state, the department may trade in devices or services to offset the cost of new devices or services in a manner consistent with 401 IAC 7.17(18).

13.5(7) The department may distribute bid documents to bidders who have expressed an interest in receiving bid documents from the department and to others identified as offering the requested device(s) or service(s) in conformance with the notice requirements of these rules.

13.5(8) The department may consider cash discounts or other value–added services when considering a bid proposal.

13.5(9) The department may consider background information, financial information, or other information identified in the bid documents deemed relevant by the department when awarding contracts for information technology devices or services.

13.5(10) In no event shall proposals be made public until after proposals have been evaluated and a notice of intent to award a contract has been issued by the department or the department of general services.

13.5(11) The department shall resolve tied bid proposals that are equal in all respects and tied in price by drawing lots. Whenever practicable, the drawing shall be held in the presence of the vendors whose proposals are tied. If this is not possible, the drawing shall be made in front of at least three persons and the drawing will be documented in writing. Whenever a tie involves an Iowa firm and a firm outside the state of Iowa, the Iowa firm shall receive preference. Whenever a tie involves two or more Iowa firms and one or more firms outside the state of Iowa, the drawing shall be held among the Iowa firms only. The tied bid proposals involving Iowa–produced or Iowa–manufactured products and devices or services produced or manufactured outside the state of Iowa shall be resolved in favor of the Iowa product or service.

13.5(12) Time of submission. All formal bids and proposals shall be submitted by the vendor in sufficient time to actually reach the department prior to the date and time set for the opening of the bids or proposals. All informal bids shall be submitted by the vendor in time to reach the department prior to the time specified by the department. Bids and proposals shall be marked by the department with the date and time received by the department. Bids and proposals received after the date and time set for opening or for submission shall be returned to the vendor unopened. All vendors to whom bid documents are sent shall be notified of any changes of the time of submission. If an acquisition is canceled prior to the time set for opening the bids or proposals, any responses already received shall be returned unopened or the department in its discretion will destroy the proposals unopened.

13.5(13) Modification or withdrawal of bids. Bids orproposals may be modified or withdrawn prior to the time and date set for the bid or proposal opening. Modifications or withdrawals shall be in writing and delivered in a sealed envelope which properly identifies the correct bid or proposal to be modified or withdrawn. A bid or proposal may be withdrawn after opening only with the approval of the department if the department finds that an honest error was made by the vendor which will cause undue financial hardship to the vendor and which will not cause undue financial hardship or inconvenience to the department. The department’s contact person may contact a vendor to discuss the error in the vendor’s proposal. Nothing in this rule shall limit the department’s ability to amend its bid documents prior to the date bids or proposals are due.

13.5(14) Financial security. The department may require bid security, litigation security, fidelity security and performance security as designated in the bid documents. When required, security may be by certified check, cashier’s check, certificate of deposit, or irrevocable letter of credit made payable to the department.

13.5(15) Rejection of bids and proposals. The department reserves the right to reject any or all bids or proposals. Bids and proposals may be rejected because of faulty specifications, abandonment of the project, insufficient funds, evidence of unfair or flawed bidding procedures, failure of a vendor to meet the requirements described in the bid document, or for any other reason as determined by the department. The department shall not be required to provide a reason for the rejection of bids and proposals. Following the rejection of bids, new bids may be requested by the department at any time deemed convenient by the department.

13.5(16) Content of bid document. The bid document may contain the following information:

a. A description of or the purpose for which the information technology devices or services are to be used.

b. Requirements, specifications and standards or procurement standards to which the devices and services must conform. The document may include but is not limited to a description of the devices or services, make and model of the devices or services to be purchased, specifications and standards or procurement standards the devices or services must meet in order to be considered for the procurement.

c. The date, time and place of submittal.

d. A statement requiring an explanation of associated criteria including maintenance and service agreements, operating and environmental constraints such as temperature, power, software limitations, ownership, trademark or other operational restrictions.

e. A statement requiring the vendor’s name, primary place of business, and location of service and sales offices appropriate to the acquisition.

f. A statement providing that nonconforming devices or services may be considered if the vendor is able to meet required performance levels, reduce costs, or furnish evidence of other overriding considerations.

g. Requirements for bid, performance, fidelity, litigation or surety bonds and insurance coverage when necessary.

h. Delivery dates, installation time or modification requirements.

i. Warranty and service maintenance requirements.

j. The site at which the information technology devices or services are to be housed or provided.

k. When necessary, requirements for the demonstration of the devices or services as well as vendors’ conferences, including times and places.

l. A statement requiring the submittal of and explanation of full acquisition and operational costs associated with the devices or services.

m. Terms and conditions in conformance with 2001 Iowa Acts, House File 687, when the department purchases services.

n. Terms and conditions developed by the department when the department is purchasing information technology devices.

o. Any other relevant information.

13.5(17) Review of proposals.

a. Review of the proposals shall commence after the closing date for submittal of bids and shall be completed within the time limit set forth in the bid document. However, the department shall be permitted to vary the time by which the evaluation process shall be completed by notifying vendors either in the bid document or after the evaluation of proposals has commenced. In the event the procurement is for a participating agency, at least one member of the evaluation team shall be a representative from the participating agency.

b. After completion of the evaluation, a recommendation will be provided to the director of the information technology department with respect to which vendor(s) should be awarded the contract.

c. The director of the information technology department shall act upon the recommendations and approve or disapprove the award. In the event the department is purchasing information technology devices or services for a participating agency, and before a decision to issue a notice of intent to award is made, the director shall consult with the head of the participating agency making the purchase or the agency head’s designee regarding the recommendations to award a contract. After consultation, the department shall issue a notice of intent to award and notify all vendors that submitted bids or proposals. In the event the recommendation is not approved, the director may direct the evaluation team to reevaluate the proposals or cancel the acquisition and reject all bids.

13.5(18) The department may establish contracts for information technology devices and services that are advantageous to the state. When the bid documents provide that the department will purchase enhancements, extensions, new features and new devices, the contract created for the procurement may allow for the addition of enhancements, extensions, new features, and new devices to the contract during its term.

13.5(19) Contracts entered into and made available by other state procurement authorities or political subdivisions of the state or cooperative procurement agreements may be used to acquire information technology devices or services when appropriate. Contracts entered into by the department may be extended to, and for the use of, other state purchasing authorities, political subdivisions or their offices or units including but not limited to school corporations, nonpublic accredited schools, area education agencies or area agencies on aging, community colleges, judicial districts, community–based corrections or other like agencies at any level of government or purchasing agencies.

471—13.6(14B,18) Emergency acquisitions. The department may purchase devices or services without using competitive bidding procedures if the department can demonstrate and document that there is an emergency and the circumstances qualify for an emergency acquisition. Emergency purchases may be made in conformance with Iowa Code section 18.6(2) and 401 IAC 7.2(18).

471—13.7(14B,18) Sole source acquisitions. The department may purchase devices or services without using competitive bidding procedures if the department can demonstrate that the circumstances qualify for a sole source acquisition. Sole source purchases shall be made in conformance with Iowa Code section 18.6(2) and 401 IAC 7.2(18). Additionally, sole source acquisitions shall follow the procedures described below:

13.7(1) Sole source procurement shall be used only when allowed by applicable law.

13.7(2) In the event the department purchases maintenance services for information technology devices, these services shall be sole sourced if failure to purchase maintenance from a particular vendor may void a warranty or void the original equipment manufacturer’s warranty for the information technology device.

13.7(3) The department director shall sign all sole source contracts and amendments regardless of value or length of term. Use of a sole source procurement does not relieve the department from negotiating a fair and reasonable price and thoroughly documenting the procurement action.

13.7(4) The department shall verify a service provider’s qualifications, insurance coverage (if applicable), information on warranty offered, and any other data pertinent to the procurement.

471—13.8(14B) Vendor appeals. Any vendor whose bid or proposal has been timely filed and who is aggrieved by the decision of the director may appeal the decision by filing a written notice of appeal and request for contested case before the council, sent to Information Technology Department, Hoover State Office Building, Level B, Des Moines, Iowa 50319– 0141, within 30 calendar days of the date of award. A written notice of appeal may be filed by a fax transmission. The notice shall state the following:

1. The relief demanded and the facts and law relied upon for relief;

2. The particular provisions of the statutes and rules involved with specific reference to the grounds identified in Iowa Code section 17A.19(10);

3. On whose behalf the petition is filed; and

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

471—13.9(14B) Procedures for vendor appeal. The following procedures shall apply when the council considers a vendor appeal.

13.9(1) Upon receipt of a notice of vendor appeal, the council may in its discretion refer a vendor appeal to the department of inspections and appeals and request a hearing before a qualified administrative law judge. The ruling of an administrative law judge acting as the sole presiding officer shall constitute a proposed decision. Council review of a proposed decision shall be according to Iowa Code subsection 17A.15(2) and these rules. Nothing in this rule shall prevent the council from hearing a vendor appeal with the assistance of an administrative law judge. This rule merely authorizes an alternative procedure.

13.9(2) A written notice of the date, time and location of the appeal hearing shall be sent to the aggrieved vendor or vendors. A hearing shall be held on the vendor appeal within 20 days of the date the notice of appeal was received by the department. The hearing may be a consolidated hearing, at which all timely filed appeals by aggrieved vendors for a particular procurement are considered. The department shall not be required to file a motion to consolidate all appeals. It shall be sufficient for the department to request one hearing for all the appeals filed for a particular procurement. A copy of the transmittal form shall be made available to the aggrieved vendors.

13.9(3) Discovery. Any discovery requests shall be served simultaneously on the parties within seven days of the notice of appeal.

13.9(4) Witnesses and exhibits. Within three days following notice of appeal, the parties may contact each other regarding witnesses and exhibits. There is no requirement for witness and exhibit lists. The parties shall exchange exhibits at least seven days prior to the hearing. The department shall exchange exhibits only with aggrieved parties. In its discretion, the department may distribute exhibits upon request and subject to the provisions of Iowa Code chapter 22 to other members of the public.

13.9(5) Evidence for a telephone or network hearing. If the hearing is conducted by telephone or on the ICN, all exhibits must be delivered to the office of the presiding officer three days prior to the time the hearing is conducted. Any exhibits which have not been served on the opposing party should be served at least seven days prior to the hearing. Hearings are open to the public.

13.9(6) Record requirements. The record of the contested case shall include all materials specified in Iowa Code subsection 17A.12(6). The record shall also include any request for a contested case hearing and other relevant procedural documents regardless of their form.

a. Method of recording. Oral proceedings in connection with a vendor appeal shall be recorded either by mechanized means or by certified shorthand reporters. Parties requesting that the hearing be recorded by certified shorthand reporters shall bear the costs.

b. Transcription. Oral proceedings in connection with a hearing in a case or any portion of the oral proceedings shall be transcribed at the request of any party with the expense of the transcription charged to the requesting party.

c. Tapes. Copies of tapes of oral proceedings may be obtained from the presiding officer at the requester’s expense.

d. Retention time. The recording or stenographic notes of oral proceedings or the transcription shall be filed and maintained by the department for at least five years from the date of the proposed decision.

13.9(7) Contents of decision. The administrative law judge, or the council if an administrative law judge is not used, shall issue a proposed decision in writing that includes findings of fact and conclusions of law stated separately. The decision shall be based on the record of the contested case and shall conform with Iowa Code chapter 17A. The decision shall be sent to all parties by first–class mail. The proposed decision shall become the final decision of the council ten days after mailing of the proposed decision, unless prior to that time a party submits an appeal of the proposed decision or the council seeks review on its own motion.

13.9(8) Dismissal. A ruling dismissing all of a party’s claims or a voluntary dismissal is a proposed decision under Iowa Code section 17A.15.

13.10(1) Notice of an appeal for review of a proposed decision issued by an administrative law judge or notice of the council’s own review shall be mailed to all parties by the council’s chair or chair’s designee. Within ten days after mailing of the notice of appeal or the council’s review, any party may submit to the council exceptions to and a brief in support of or in opposition to the proposed decision, copies of which shall be mailed by the submitting party to all other parties to the proceeding. The council’s chair or chair’s designee shall notify the parties if oral argument will be heard and shall specify whether oral argument will be heard in person, by telephone or over the Iowa Communications Network. The council chair shall schedule the council’s review of the proposed decision not less than 30 days after mailing of the notice of appeal or the council’s own review.

13.10(2) Failure to appeal a proposed decision will preclude judicial review unless the council reviews the proposed decision on its own motion.

13.10(3) Review of a proposed decision shall be based on the record and limited to the issues raised in the hearing. The issues shall be specified in the notice of appeal of a proposed decision. The party requesting the review shall be responsible for transcribing any tape of the oral proceedings or arranging for a transcript of oral proceedings reported by a certified shorthand reporter.

13.10(4) Each party shall have the opportunity to file exceptions and present briefs. The council chair may set deadlines for the submission of exceptions or briefs. If oral argument will be held, the council chair shall notify all parties of the date, time and location at least ten days in advance.

13.10(5) The council shall not receive any additional evidence, unless it grants an application to present additional evidence. A party must file any such application no less than five business days in advance of oral argument. Additional evidence shall be allowed only upon a showing that it is material to the outcome and that there were good reasons for failure to present it at hearing. If an application to present additional evidence is granted, the council shall order the conditions under which it shall be presented.

13.10(6) Requests for rehearing shall be made to the director within ten days of issuing a final decision. A rehearing may be granted when new legal issues are raised, new evidence is available, an obvious mistake is corrected, or when the decision failed to include adequate findings or conclusions on all issues. A request for rehearing is not necessary to exhaust administrative remedies.

13.10(7) The council’s final decision shall be in writing and it may incorporate all or part of the proposed decision.

13.10(8) Judicial review of the council’s final decisions may be sought in accordance with Iowa Code section 17A.19.

13.11(1) Any party appealing the issuance of a notice of award may petition for stay of the award pending its review. The petition for stay shall be filed with the notice of appeal and shall state the reasons justifying a stay.

13.11(2) Any party adversely affected by a final decision and order may petition the department which issued the decision for a stay of that decision and order pending judicial review. The petition for stay shall be filed with the council within five days of receipt of the final decision and order and shall state the reasons justifying a stay.

13.11(3) When granted. The council, as appropriate, may grant a stay when the director concludes that the requirements of Iowa Code section 17A.19(5)“c” are satisfied.

13.11(4) Vacation. A stay may be vacated by the council upon application of the department or any other party.

471—13.12(14B,8) Service contracts. When the department purchases services, the provisions of 2001 Iowa Acts, House File 687, relating to service contracts shall apply. Additionally, any rules adopted by the department of general services containing uniform terms and conditions shall apply to all contracts for services.

The director or the director’s designee may authorize the negotiation of a contract without competitive bidding or solicitation of quotations or advertising for proposals if the service is to be provided by another governmental entity or educational institution or nonprofit corporation, or if the service sought qualifies as a sole source acquisition or an emergency acquisition.

These rules are intended to implement Iowa Code chapter 14B.

Pursuant to the authority of Iowa Code section 10A.104(5) and 10A.801(7), the Department of Inspections and Appeals gives Notice of Intended Action to amend Chapter 10, “Contested Case Hearings,” Iowa Administrative Code.

The proposed amendments make clarifications to the Code of Administrative Judicial Conduct as it relates to agency heads and boards that act as presiding officers in contested case hearings. Clarifications are being proposed at the suggestion of the Attorney General’s office.

Interested parties may make written comments or suggestions on the proposed amendments on or before November 20, 2001. Written materials should be addressed to theDirector, Department of Inspections and Appeals, Lucas State Office Building, East 12th and Grand Avenue, Des Moines, Iowa 50319–0083. Faxes may be sent to (515) 242–6863; E–mail may be sent to Jennifer.Fiihr@dia.state. ia.us.

These amendments are not subject to waiver because the canons are harmonized with the dictates of the administrative process as established by the legislature. The Department is specifically mandated by Iowa Code section 10A.801(7)“d” to establish the Code of Administrative Judicial Conduct.

These amendments are intended to implement Iowa Code chapters 10A and 17A.

The following amendments are proposed.

ITEM 1. Amend rule 481—10.29(10A), introductory paragraph, as follows:

481—10.29(10A) Code of administrative judicial conduct. The code of administrative judicial conduct is designed to govern the conduct, in relation to their adjudicative functions in contested cases, of all persons who act as presiding officers under the authority of Iowa Code section 17A.11(1) as amended by 1998 Iowa Acts, chapter 1202, section 15. The canons are rules of reason. The canons shall be applied consistent with constitutional requirements, statutes, administrative rules, and decisional law and in the context of all relevant circumstances. The canons must be harmonized with the dictates of the administrative process as established by the legislature. While Canons 1, 2, and 3 are generally applicable to both administrative law judges and agency heads or members of multimember agency heads when these persons act as presiding officers, these canons shall be applied to agency heads and members of multimember agency heads only as expressly mandated by statute and as reasonably practicable when taking into account the fact that agency heads and members of multimember agency heads, unlike administrative law judges, have multiple duties imposed upon them by law. The provisions of Canon 4 concerning the regulation of extra–judicial activities are not applicable to agency heads or members of multimember agency heads. This code is to be construed so as to promote the essential independence of presiding officers in making judicial decisions.

ITEM 2. Amend subparagraph 10.29(3)“a”(5) as follows:

(5) A presiding officer shall accord to all persons who are legally interested in a proceeding, or their representatives, full right to be heard according to law, and except as authorized by law, neither initiate nor consider ex parte communications as to substantive matters concerning a pending or impending proceeding prohibited by Iowa Code section 17A.17.

ITEM 3. Amend subparagraph 10.29(3)“a”(8) as follows:

(8) A presiding officer shall not disclose or use, for any purpose unrelated to adjudicative duties, nonpublic information acquired in an adjudicative capacity except as lawfully permissible in the performance of official duties by an agency head or member of a multimember agency head.

ITEM 4. Amend subrule 10.29(4) as follows:

10.29(4) Canon 4. A presiding officer An administrative law judge shall regulate extrajudicial activities to minimize the risk of conflict with judicial duties.

In general, a presiding officer an administrative law judge shall conduct all of the presiding officer’s administrative law judge’s extrajudicial activities so that they do the administrative law judge does not:

1. Cast reasonable doubt on the presiding officer’s administrative law judge’s capacity to act impartially as a judge;

2. Create the appearance of impropriety or demean the adjudicative office; or

3. Interfere with the proper performance of adjudicative duties.

Pursuant to the authority of Iowa Code subsection 455A.5(6), the Natural Resource Commission hereby gives Notice of Intended Action to amend Chapter 37, “Boating Safety Equipment,” Iowa Administrative Code.

These proposed amendments provide for additional specifications for certified Type V flotation devices (PFDs). These changes are necessary to maintain consistency with current changes in federal regulations by the United States Coast Guard.

Any interested person may make written suggestions or comments on the proposed amendments on or before November 21, 2001. Such written materials should be directed to the Law Enforcement Bureau, Department of Natural Resources, Wallace State Office Building, Des Moines, Iowa 50319–0034; fax (515)281–6794. Persons who wish to convey their views orally should contact the Law Enforcement Bureau at (515)281–4515 or at the Law Enforcement Bureau offices on the fourth floor of the Wallace State Office Building.

There will be a public hearing on November 21, 2001, at 9:30 a.m. in the Fourth Floor East Conference Room of the Wallace 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 amendments.

Any persons who intend to attend the public hearing and have special requirements such as those related to hearing or mobility impairments should contact the Department of Natural Resources and advise of specific needs.

These amendments are intended to implement Iowa Code sections 456A.24 and 462A.3.

The following amendments are proposed.

ITEM 1. Amend subrule 37.13(2) by adopting the following new paragraph “d”:

d. Type V PFD (see 37.13(6)“c”)

ITEM 2. Amend subrule 37.13(3) by adopting the following new paragraph “d”:

d. Type V PFD (see 37.13(6)“c”)

ITEM 3. Amend subrule 37.13(5), paragraph “e,” as follows:

e. Type V PFD is a work vest or special purpose personal flotation device, including the Aqua–Force Type V swimwear flotation device, and the inflatable devices, approved by the United States Coast Guard.

ITEM 4. Amend subrule 37.13(7) as follows:

37.13(7) Nonapproved devices. Any PFD which has a torn or missing strap, punctured flotation bag, waterlogged flotation material, rotted materials in straps or webbing or cover, missing laces, missing hardware, envelope torn or perforated, torn stitching or any other condition which impairs the operating efficiency, or any PFD on which the U.S. Coast Guard approval tag is no longer easily legible, or any Type V inflatable device which has a discharged or otherwise inoperable gas cartridge shall be deemed as not approved for use on board vessels as equipment required by law.

ITEM 5. Amend subrule 37.13(9) as follows:

37.13(9) Water skis and surfboards. Any person engaged in water skiing, surfboarding, or other similar activity, except for vessels known as windsurfers, shall wear a Type I, II, or III or any suit–type Type V personal flotation device approved by the U.S. Coast Guard. Inflatable Type V devices are not approved for tow–behind activities. Skiers participating in a tournament or exhibition may be exempted from the personal flotation device requirement if the skiers are wearing wet suits with built–in flotation and granted a specific exemption in the special events permit issued by the natural resource commission. A flotation wet suit may include a full suit (top and bottom) or a form–fitting top as long as the top will float the wearer when air is expelled from the wearer’s lungs. A special event may include practice sessions if all practice sessions for the season are listed on the special event application. In that case, the application shall include a specific location, date and time for each practice session.

Pursuant to the authority of Iowa Code subsection 455A.5(6), the Natural Resource Commission hereby gives

Notice of Intended Action to amend Chapter 41, “Boating Navigation Aids,” Iowa Administrative Code.

This proposed amendment provides for changes in the United States Coast Guard uniform marker buoy symbols. These changes are necessary to maintain consistency with current changes in federal regulations by the United States Coast Guard.

Any interested person may make written suggestions or comments on the proposed amendment on or before November 21, 2001. Such written materials should be directed to the Law Enforcement Bureau, Department of Natural Resources, Wallace State Office Building, Des Moines, Iowa 50319–0034; fax (515)281–6794. Persons who wish to convey their views orally should contact the Law Enforcement Bureau at (515)281–4515 or at the Law Enforcement Bureau offices on the fourth floor of the Wallace State Office Building.

There will be a public hearing on November 21, 2001, at 10 a.m. in the Fourth Floor East Conference Room of the Wallace 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 amendment.

Any persons who intend to attend the public hearing and have special requirements such as those related to hearing or mobility impairments should contact the Department of Natural Resources and advise of specific needs.

This amendment is intended to implement Iowa Code sections 456A.24 and 462A.3.

The following amendment is proposed.

Rescind subrule 41.2(1) and adopt the following new subrule in lieu thereof:

41.2(1) State aids to navigation.

a. A red–topped white buoy, red buoy or sign shall indicate that side of the channel to be kept to the right side of the vessel when entering the channel from the main water body or when proceeding upstream.

b. A green–topped white buoy, green buoy or sign shall indicate that side of the channel to be kept to the left of a vessel when entering the channel from the main water body or when proceeding upstream.

c. Buoys or signs described in “a” and “b” above shall normally be used in pairs and only for the purpose of marking a clearly defined channel.

d. State aids to navigation shall be numbered or lettered for identification. Red buoys and signs marking channels shall be identified with even numbers, and green buoys and signs marking channels shall be identified with odd numbers, the numbers increasing from the main water body or proceeding upstream. Buoys and signs indicating the center of a waterway will be identified by letters of the alphabet. All numbers and letters used to identify state aids to navigation shall be preceded by the letters “IA”.

e. Letters and numerals used with state aids to navigation shall be white, in block characters of good proportion, and spaced in a manner which will provide maximum legibility. Such letters and numerals shall be at least six inches in height.

f. The shapes of state aids to navigation shall be compatible with the shapes established by U.S. Coast Guard regulations for the equivalent U.S. Coast Guard aids to navigation.

g. Where reflectorized materials are used, a red reflector will be used on a red buoy, and a green reflector on a green buoy.

Pursuant to the authority of Iowa Code subsection 455A.5(6), the Natural Resource Commission hereby gives Notice of Intended Action to amend Chapter 45, “Boat Motor Regulations,” Iowa Administrative Code.

These amendments condense and eliminate extraneous language regarding motor size rules for artificial lakes and marshes.

Any interested person may make written suggestions or comments on the proposed amendments on or before November 21, 2001. Such written materials should be directed to the Law Enforcement Bureau, Department of Natural Resources, Wallace State Office Building, Des Moines, Iowa 50319–0034; fax (515)281–6794. Persons who wish to convey their views orally should contact the Law Enforcement Bureau at (515)281–4515 or at the Law Enforcement Bureau offices on the fourth floor of the Wallace State Office Building.

There will be a public hearing on November 21, 2001, at 10:30 a.m. in the Fourth Floor East Conference Room of the Wallace 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 amendments.

Any persons who intend to attend the public hearing and have special requirements such as those related to hearing or mobility impairments should contact the Department of Natural Resources and advise of specific needs.

These amendments are intended to implement Iowa Code sections 456A.24 and 462A.3.

The following amendments are proposed.

ITEM 1. Amend subrule 45.4(1) as follows:

45.4(1) General horsepower limitation. On artificial lakes of 100 acres or less, a boat vessel shall not only be operated with an electric motor larger than 1½ horsepower or with an outboard motor except where permitted by subrule 45.4(2). On artificial lakes larger than 100 acres, a boat shall not be operated with a motor larger than 10 horsepower except where permitted by subrule 45.4(3).

ITEM 2. Rescind subrule 45.4(3) and adopt the following new subrule in lieu thereof:

45.4(3) Horsepower limitations for artificial lakes of more than 100 acres in size. On artificial lakes of more than 100 acres, vessels may be operated with unrestricted horsepower at a no–wake speed except as otherwise permitted by subrule 45.4(2). The following artificial lakes have special horsepower restrictions:

a. Green Valley Lake, Union County—no inboard or racing–type craft are permitted. Vessels must be operated at a no–wake speed except in designated ski areas as established in 571—36.7(462A).

b. Lake Icaria, Adams County—motorboats of outboard or inboard/outdrive type with power not to exceed 300 horsepower. Vessels must be operated at a no–wake speed when within 50 feet of another vessel which is not underway or is operating at a no–wake speed. Additional speed and distance regulations apply as established in 571—40.20(462A).

c. Lake McBride, Johnson County—unrestricted horsepower operated at a no–wake speed only from September 8 through May 20 of each year. A motorboat with a power unit exceeding 10 horsepower shall not be permitted the remainder of the year.

d. Three Mile Lake, Union County—motorboats of outboard or inboard/outdrive type with power not to exceed 200 horsepower. Vessels must be operated at a no–wake speed when within 50 feet of another vessel which is not underway or is operating at a no–wake speed. Additional speed and distance regulations apply as established in 571—40.44(462A).

ITEM 3. Rescind rule 571—45.5(462A) and adopt the following new rule in lieu thereof:

571—45.5(462A) Artificial marshes. A motorboatequipped with any power unit mounted or carried aboard the vessel may be operated on the following listed artificial marshes under the jurisdiction of the department of natural resources at a no–wake speed between January 1 and August 31 and with no speed restrictions between September 1 and December 31.

Bays Branch, Guthrie County

Big Marsh, Butler County

Brown’s Slough, Lucas County

Cardinal Marsh, Winneshiek County

Dudgeon Lake, Benton County

Elk Creek Marsh, Worth County

Green Island, Jackson County

Hendrickson Marsh, Story County

Hooper Pond, Warren County

North Colyn, Lucas County

Otter Creek Marsh, Tama County

Princeton Area, Scott County

Riverton, Fremont County

Round Pond, Johnson County

South Colyn, Lucas County

Sweet Marsh, Bremer County

Walnut Creek Marsh, Ringgold County

Willow Slough, Mills County

Woodpecker Marsh, Wayne County

Nothing in this rule is to be construed as limiting motorboat horsepower on natural marshes under the jurisdiction of the department of natural resources.

Pursuant to the authority of Iowa Code subsection 455A.5(6), the Natural Resource Commission hereby gives Notice of Intended Action to amend Chapter 61, “State Parks and Recreation Areas,” Iowa Administrative Code.

These amendments accomplish the following:

1. Add a definition for “special event.”

2. Increase the rental fees for several cabins, yurts, lodges, shelters and group camps.

3. Decrease the rental fee for camping cabins.

4. Amend the wording regarding damage deposits for open shelters with kitchenettes.

5. Add Elk Rock State Park, Marion County, to the list of areas where rock climbing and free climbing are prohibited.

6. Add a new subrule regarding special event permits.

Any interested person may make written suggestions or comments on the proposed amendments on or before November 26, 2001. Such written materials should be directed to the Parks, Recreation and Preserves Division, Department of Natural Resources, Wallace State Office Building, Des Moines, Iowa 50319–0034; fax (515)281–6794. Persons who wish to convey their views orally should contact the Division at (515)281–3449 or TDD (515)242–5967 or at the Division offices on the fourth floor of the Wallace State Office Building.

There will be a public hearing on November 26, 2001, at9 a.m. in the Fifth Floor East Conference Room of the Wallace 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 amendments.

Any persons who intend to attend the public hearing and have special requirements such as hearing or mobility impairments should contact the Department of Natural Resources and advise of specific needs.

These amendments are intended to implement Iowa Code sections 455A.4, 461A.3, 461A.4, 461A.35, 461A.42, 461A.44, 461A.47, 461A.57, and 462.16.

The following amendments are proposed.

ITEM 1. Amend rule 571—61.2(461A) by adopting the following new definition in alphabetical order:

“Special event” means any planned event for which attendance is solicited through advertising, invitation, or other solicitation and that may interfere with the general public’s normal use of a state park or recreation area and its facilities.

ITEM 2. Amend subrule 61.4(1), paragraph “a,” as follows:

a. Cabin rental. This fee does not include tax. Tax will be calculated at time of final payment.

ITEM 3. Amend subrule 61.4(1), paragraph “b,” as follows:

b. Yurt rental. This fee does not include tax. Tax will be calculated at time of final payment.

ITEM 4. Amend subrule 61.4(1), paragraph “c,” as follows:

c. Lodge rental per reservation. This fee does not include tax. Tax will be calculated at time of payment.

**Do not contain kitchen facilities

ITEM 5. Amend subrule 61.4(1), paragraph “d,” as follows:

d. Open shelter reservation, $20 $25 plus applicable tax.

ITEM 6. Amend subrule 61.4(1), paragraph “e,” as follows:

e. Reservation for open shelter with kitchen, $50 $75 plus applicable tax.

ITEM 7. Amend subrule 61.4(1), paragraph “g,” subparagraph (1), as follows:

(1) Dolliver Memorial State Park, Webster County, and Springbrook State Park, Guthrie County. Rental includes use of restroom/shower facility at Dolliver Memorial State Park.

1. Chaperoned organized youth groups – $1.25 $2.00 per day per person with a minimum charge per day of $55 $60.

2. Other groups – $15 per day per cabin plus $25 $30 per day for the kitchen and dining facility.

ITEM 8. Amend subrule 61.4(6), paragraph “b,” subparagraph (3), as follows:

(3) Upon arrival for the lodge or open shelter with kitchenette rental period, renters shall pay in full a damage deposit of $50.

ITEM 9. Amend subrule 61.4(6), paragraph “b,” by rescinding subparagraph (4) and renumbering existing subparagraphs (5) to (8) as (4) to (7).

ITEM 10. Amend subrule 61.5(13) as follows:

61.5(13) Rock climbing or rappelling. The rock climbing practice known as free climbing and climbing or rappelling activities which utilize bolts, pitons, or similar permanent anchoring equipment or ropes, harnesses, or slings are prohibited in state parks and recreation areas, except by persons or groups registered with the park manager or technician in charge of the area. Individual members of a group must each sign a registration. Climbing or rappelling will not be permitted at Elk Rock State Park, Marion County; Ledges State Park, Boone County; Dolliver Memorial State Park, Webster County; Stone State Park, Woodbury and Plymouth Counties; Maquoketa Caves State Park, Jackson County; Wildcat Den State Park, Muscatine County; or Mines of Spain Recreation Area, Dubuque County. Other sites may be closed to climbing or rappelling if environmental damage or safety problems occur or if an endangered or threatened species is present.

ITEM 11. Amend rule 571—61.5(461A) by adopting the following new subrule:

61.5(16) Special event permits. Any person or group wishing to conduct a special event in any state park or recreation area shall notify the department of natural resources manager in charge of the area in advance and comply with the following procedures.

a. At least 30 days prior to the scheduled event, the sponsor shall submit an application to the park manager of the area where the proposed event is to take place. Application forms shall be furnished by the DNR. Submission of an application does not guarantee issuance of a permit by the DNR.

b. Applicants for special events shall provide proof of liability insurance naming the applicant and the DNR as additional insured.

c. If the area has a concessionaire on site, sales of food and other items shall be governed pursuant to 571—Chapter 14. If a concessionaire chooses not to provide these services during the event, the event sponsor may then bring in other concession operations as approved by the DNR.

d. Exclusive use. Issuance of a special event permit does not imply that the permittee has exclusive use of an area unless a facility has been reserved pursuant to 61.4(461A).

Pursuant to the authority of Iowa Code section 481B.3, the Natural Resource Commission hereby gives Notice of Intended Action to amend Chapter 77, “Endangered and Threatened Plant and Animal Species,” Iowa Administrative Code.

These rules list the threatened and endangered plant and animal species that are protected by law. The proposed changes in the list of endangered, threatened, and special concern animal species cover amphibians, reptiles, and mammals. The changes reflect new information, regional status (surrounding states), changes in distribution since 1930, and estimated habitat changes during the next ten years.

Information about individual species and groups of species may be reviewed at the Division’s offices in the Wallace State Office Building during normal work hours. Anyone wishing to review this information must schedule an appointment by calling (515)281–8524.

Any interested person may make written comments on these proposed amendments on or before November 20, 2001. Such written material should be directed to the Division of Parks, Recreation, and Preserves, Department of Natural Resources, Wallace State Office Building, Des Moines, Iowa 50319–0034; fax (515)281–6794. Persons who wish to convey their views orally should contact the Endangered Species Program at (515)281–8524 or at the program offices on the fourth floor of the Wallace State Office Building on or before the above date.

Also, there will be a public hearing on November 20, 2001, at 10 a.m. in the Fourth Floor East Conference Room of the Wallace State Office Building in Des Moines 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 amendments.

These amendments are intended to implement Iowa Code chapter 481B.

The following amendments are proposed.

ITEM 1. Amend subrule 77.2(1), “Mammals,” “Reptiles,” and “Amphibians” categories, as follows:

Mammals

Reptiles

Amphibians

ITEM 2. Amend subrule 77.2(2), “Mammals,” “Reptiles,” and “Amphibians” categories, as follows:

Mammals

Reptiles

Amphibians

ITEM 3. Amend subrule 77.2(3) as follows:

Amend “Mammals” category as follows:

Mammals

Adopt a new “Reptiles” category as follows:

Reptiles

Pursuant to the authority of Iowa Code section 147.53, the Professional Licensure Division hereby gives Notice of Intended Action to amend Chapter 17, “Materials for Board Review,” Iowa Administrative Code.

The proposed amendment increases the time frame for items to be placed on the board agenda.

Any interested person may make written comments on the proposed amendment no later than November 21, 2001, addressed to Ella Mae Baird, Professional Licensure Division, Department of Public Health, Lucas State Office Building, Des Moines, Iowa 50319–0075.

A public hearing will be held on November 21, 2001, 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 amendment.

This amendment is intended to implement Iowa Code section 147.53.

The following amendment is proposed.

Amend rule 645—12.1(147) as follows:

645—12.1(147) Materials for board review. Materials received at least one week two weeks before a regularly scheduled meeting shall be placed on the agenda for board review. Materials from emergency or unusual circumstances may be added to the agenda with the chairperson’s approval. All other materials received after this deadline will be reviewed at the next scheduled meeting of the board.

This rule is intended to implement Iowa Code chapter 147.

Pursuant to the authority of Iowa Code section 147.76, the Board of Podiatry Examiners hereby gives Notice of Intended Action to adopt new Chapter 219, “Board of Podiatry Examiners”; rescind Chapter 220, “Podiatry Examiners,” and adopt new Chapter 220, “Licensure of Podiatrists”; amend Chapter 222, “Continuing Education for Podiatrists”; and adopt new Chapter 224, “Discipline for Podiatrists,” and new Chapter 225, “Fees,” Iowa Administrative Code.

The proposed amendments rescind the current licensing rules and fees and adopt new chapters for licensure, disci–pline and fees.

The Division revised these rules according to Executive Order Number 8. The Division sent six letters to the public for comment and one letter was 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.

Any interested person may make written comments on the proposed amendments no later than November 20, 2001, addressed to Ella Mae Baird, Professional Licensure Division, Department of Public Health, Lucas State Office Building, Des Moines, Iowa 50319–0075.

A public hearing will be held on November 20, 2001, 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 147.76 and chapters 17A, 139A, 149, 272C and 514F.

The following amendments are proposed.

ITEM 1. Adopt new 645—Chapter 219 as follows:

CHAPTER 219
BOARD OF PODIATRY EXAMINERS

“Board” means the board of podiatry examiners.

219.2(1) All information regarding rules, forms, time and place of meetings, minutes of meetings, record of hearings, and examination results are available to the public between the hours of 8 a.m. and 4:30 p.m., Monday through Friday, except holidays.

219.2(2) Information may be obtained by writing to the Board of Podiatry Examiners, Department of Public Health, Lucas State Office Building, Des Moines, Iowa 50319–0075. All official correspondence shall be in writing and directed to the board at this address.

219.3(1) The board shall establish U.C.C.R. (Utilization and Cost Control Review) committee(s). The name(s) of the committee(s) shall be on file with the board and available to the public. The designation of the committee(s) shall be reviewed annually.

219.3(2) Members of the U.C.C.R. committee shall:

a. Hold a current license.

b. Have practiced podiatry in the state of Iowa for a minimum of five years.

c. Be actively involved in a podiatric practice during the term of appointment as a U.C.C.R. committee member.

d. Not assist in the review or adjudication of claims in which the committee member may reasonably be presumed to have a conflict of interest.

219.3(3) Procedures for utilization and cost control re–view. A request for review may be made to the board by any person governed by the various chapters of Title XX of the Iowa Code, self–insurers for health care benefits to employees, other third–party payers, podiatry patients or licensees.

a. The maximum fee for service shall not exceed $100 per case, which will be made payable by the patient directly to the U.C.C.R. committee. The committee shall make a yearly accounting to the board.

b. A request for service shall be submitted to the executive director of the U.C.C.R. committee on an approved submission form and shall be accompanied by four copies of all information. All references to identification and location of patient and doctor shall be deleted and prepared for blind review by the executive director of the U.C.C.R. committee. The information shall be forwarded to the U.C.C.R. committee.

c. The U.C.C.R. committee shall respond in writing to the parties involved with its findings and recommendations within 90 days. The committee shall review the appropriateness of levels of treatment and give an opinion as to the reasonableness of charges for diagnostic or treatment services rendered as requested. The U.C.C.R. committee shall submit a yearly report of its activities to the board.

219.3(4) Types of cases reviewed shall include:

a. Utilization.

(1) Frequency of treatment.

(2) Amount of treatment.

(3) Necessity of service.

(4) Appropriateness of treatment.

b. Usual and customary service.

219.3(5) Criteria for review may include, but are not limited to:

a. Was diagnosis compatible and consistent with information?

b. Were X–ray and other examination procedures adequate, or were they insufficient or unrelated to history or diagnosis?

c. Were clinical records adequate, complete, and of sufficient frequency?

d. Was treatment consistent with diagnosis?

e. Was treatment program consistent with scientific knowledge and academic and clinical training in accredited podiatric colleges?

f. Were charges reasonable and customary for the service?

219.3(6) Members of the U.C.C.R. committee shall observe the requirements of confidentiality imposed by Iowa Code chapter 22.

219.3(7) Action of the U.C.C.R. committee does not constitute an action of the board.

645—219.4(139A) Preventing HIV and HBV transmission. Any licensed podiatrist shall comply with the recommendations for preventing transmission of human immunodeficiency virus and hepatitis B virus to patients duringexposure–prone invasive procedures issued by the Centers for Disease Control and Prevention of the United States Department of Health and Human Services, or with the recommendations of the expert review panel established pursuant to Iowa Code section 139A.22(3) and applicable hospital protocols established pursuant to Iowa Code section 139A.22(1). Failure to comply will be grounds for disciplinary action.

These rules are intended to implement Iowa Code chapters 21, 139A, 147, 149, and 514F.

ITEM 2. Rescind 645—Chapter 220 and adopt the following new chapter in lieu thereof:

CHAPTER 220
LICENSURE OF PODIATRISTS

645—220.1(149) Definitions. For purposes of these rules, the following definitions shall apply:

“Board” means the board of podiatry examiners.

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

“Licensee” means any person licensed to practice as a podiatrist in the state of Iowa.

“License expiration date” means June 30 of even–numbered years.

“NBPME” means National Board of Podiatric Medical Examiners.

645—220.2(149) Requirements for licensure. The following criteria shall apply to licensure:

220.2(1) An applicant shall complete a board–approved application packet. Application forms may be obtained from the board’s Web site (http://www.idph.state.ia.us/licensure) or directly from the board office. All applications shall be sent to the Board of Podiatry Examiners, Professional Licensure Division, Fifth Floor, Lucas State Office Building, Des Moines, Iowa 50319–0075.

220.2(2) An applicant shall 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 board.

220.2(3) Each application shall be accompanied by the appropriate fees payable by check or money order to the Board of Podiatry Examiners. The fees are nonrefundable.

220.2(4) No application will be considered complete until official copies of academic transcripts sent directly to the board of podiatry examiners from a college of podiatric medicine approved by the Council on Podiatric Medical Education (CPME) of the American Podiatric Medical Association are received by the board.

220.2(5) The candidate shall take the Part III PMLexis written examination required by the board pursuant to these rules.

220.2(6) Licensees who were issued their licenses within six months prior to the renewal date shall not be required to renew their licenses until the renewal date two years later.

220.2(7) Incomplete applications that have been on file in the board office for more than two years shall be considered invalid and shall be destroyed.

220.2(8) Applications shall be complete before the licensee sits for the examination.

220.2(9) Any applicant who graduates from a podiatric college on or after January 1, 1995, shall present documentation of successful completion of a minimum of one–year residency approved by the American Podiatric Medical Association’s Council on Podiatric Medical Education.

220.2(10) Passing score reports for Part I and Part II of the NBPME examination shall be sent directly from the examination service to the board of podiatry examiners.

645—220.3(149) Written examinations. The following criteria shall apply to the written examination:

220.3(1) Registration materials for the examination shall be sent to the applicant after the application packet, transcript sent directly from the school to the board of podiatry examiners, licensure fee and score report are received by the board.

220.3(2) The licensee shall submit the appropriate examination fee, if taking the NBPME Part III Examination (PMLexis) in Iowa, directly to the National Board of Podiatric Medical Examiners.

220.3(3) A senior student expecting to graduate from an accredited podiatric college at the end of the spring term may be admitted to the state examination held in June upon a presentation of a certificate from the dean of the college stating that the applicant has completed all the college requirements and will be granted a diploma at commencement. The examination papers will not be rated until the diploma has been received and verified by the board of podiatry examiners.

220.3(4) A passing score as recommended by the administrators of the NBPME Part III Examination (PMLexis) will be required.

220.3(5) The board of podiatry examiners shall mail examination results to the candidates.

220.4(1) A new applicant for licensure to practice as a podiatrist shall present an official transcript verifying graduation from a college of podiatric medicine approved by the American Podiatric Medical Association’s Council on Podiatric Medical Education.

220.4(2) Foreign–trained podiatrists shall:

a. Provide an equivalency evaluation of their educational credentials by one of the following: International Educational Research Foundations, Inc., Credentials Evaluation Service, P.O. Box 3665, Culver City, CA 90231–3665, telephone (310)258–9451, Web site www.ierf.org, or E–mail at info@ierf.org; or International Credentialing Associates, Inc., 7245 Bryan Dairy Road, Bryan Dairy Business Park II, Largo, FL 33777, telephone (727)549–8555. The professional curriculum must be equivalent to that stated in these rules. The candidate shall bear the expense of the curriculum evaluation.

b. Provide a notarized copy of the certificate or diploma awarded to the applicant from a podiatry program in the country in which the applicant was educated.

c. Receive a final determination from the board regarding the application for licensure.

645—220.5(149) Title designations. A podiatrist may use the prefix “Doctor” but shall add after the person’s name the word “Podiatrist” or “DPM.”

220.6(1) A temporary license may be issued for one year and, at the discretion of the board, may be annually renewed not to exceed two additional years.

220.6(2) Each applicant shall:

a. Submit a completed 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 board;

b. Submit the appropriate fees payable by check or money order to the Board of Podiatry Examiners. The fees are nonrefundable;

c. Have official copies of academic transcripts sent directly to the board of podiatry examiners from a college of podiatric medicine approved by the Council on Podiatric Medical Education (CPME) of the American Podiatric Medical Association;

d. Request that passing score reports of the NBPME examination, Part I and Part II, be sent directly to the board of podiatry examiners from the National Board of Podiatric Medical Examiners;

e. Furnish an affidavit by a licensed podiatrist, institution director, or dean of an approved podiatric college from this state, setting forth the facts supporting the need for issuance of said license, of which the following reasons shall qualify:

(1) Acceptance in a residency program approved by the Council on Podiatric Medical Education (CPME) of the American Podiatric Medical Association;

(2) Aiding a licensed podiatrist, in the state of Iowa, because of the licensee’s disability; or

(3) Participating as a faculty member of a podiatric college in Iowa;

f. Request verification of licensure be sent directly to the board of podiatry examiners from each state where the applicant was licensed.

220.6(3) An applicant who graduated from a podiatric college in 1961 or earlier, is currently licensed in another state and has practiced for the 24 months immediately prior to application may be exempted from the application requirement listed in Part I and Part II of the NBPME examination based on the applicant’s credentials and the discretion of the board.

220.6(4) The ultimate decision to issue a temporary license resides with the board, and a temporary license shall be surrendered if the reason for issuance ceases to exist.

645—220.7(149) Licensure by endorsement. An applicant who has been a licensed podiatrist under the laws of another jurisdiction shall file an application for licensure by endorsement with the board office. The board may receive by endorsement any applicant from the District of Columbia, another state, territory, province or foreign country who:

1. Submits to the board a completed application;

2. Pays the licensure fee;

3. Shows evidence of licensure requirements that are similar to those required in Iowa;

4. Provides to the board official copies of academic transcripts verifying graduation from a college of podiatric medicine approved by the Council on Podiatric Medical Education (CPME) of the American Podiatric Medical Association;

5. For any applicant who graduates from a podiatric college on or after January 1, 1995, presents documentation of successful completion of, at a minimum, a one–year residency approved by the American Podiatric Medical Association’s Council on Podiatric Medical Education; and

6. Provides verification of licenses from all other states that have been sent directly from those states to the board office.

7. Applicants who passed the Part III NBPME Examination (PMLexis) more than three years prior to the date of application in Iowa must submit verification of proof of podiatry practice for one of the last three years.

645—220.8(147) Licensure by reciprocal agreement. The board may enter into a reciprocal agreement with the District of Columbia, any state, territory, province or foreign country with equal or similar requirements for licensure in podiatry.

220.9(1) The biennial license renewal period for a license to practice podiatry shall begin on July 1 of even–numbered years and end on June 30 of the next even–numbered year. All licensees shall renew on a biennial basis.

220.9(2) A renewal of license application and continuing education report form to practice podiatry 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 fee 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 licenses within six months of the license renewal date will not be required to renew their licenses 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. Continuing education hours acquired anytime from the initial licensing until the second license renewal may be used. The new licensee will be required to complete a minimum of 40 hours of continuing education per biennium for each subsequent license renewal.

d. Persons licensed to practice podiatry shall keep their renewal licenses displayed in a conspicuous public place at the primary site of practice.

220.9(3) Late renewal. If the renewal fee(s), continuing education report and renewal application are received within 30 days after the license expiration date, the late fee for failure to renew before expiration shall be charged.

220.9(4) When all requirements for license renewal are met, the licensee shall be sent a license renewal card by regular mail.

220.10(1) A licensee who is not engaged in practice in 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 good standing in order to apply for exempt, inactive status and must apply prior to the license expiration date.

220.10(2) Reinstatement of exempted, inactive practitioners. An inactive practitioner who has requested and been granted a waiver of compliance with the renewal requirements and who has 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—222.9(272C).

220.10(3) A licensee shall renew at the next scheduled renewal time. A licensee whose license was reinstated within six months prior to the renewal date shall not be required to renew the license until the renewal date two years later.

220.10(4) A new licensee who is on inactive status during the initial license renewal time period and reinstates before the first license expiration date will not be required to complete continuing education for that first license renewal time period only. Forty hours of continuing education will be required for every renewal thereafter.

220.10(5) Verifications of license(s) are required from any state in which the licensee has practiced since the Iowa license became inactive.

220.10(6) 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.

220.11(1) If the renewal fee(s) and continuing education report are received more than 30 days after the license expiration date, the license shall be considered lapsed. An application for reinstatement must be filed with the board accompanied by the reinstatement fee, the renewal fee(s) 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.

220.11(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 podiatry. Practicing without a license may be cause for disciplinary action.

220.11(3) In order to reinstate a lapsed license, a licensee shall comply with all requirements for reinstatement of a lapsed license as outlined in 645—222.5(272C).

220.11(4) After the reinstatement of a lapsed license, the licensee shall renew at the next scheduled renewal cycle and complete the continuing education required for the biennium.

220.11(5) Verifications of license(s) are required from any state in which the licensee has practiced since the Iowa license lapsed.

220.11(6) Reinstatement of a lapsed license. The following chart illustrates the requirements for reinstatement based on the length of time a license has lapsed.

220.12(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.

220.12(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 chapters 17A and 272C.

These rules are intended to implement Iowa Code chapters 17A, 147, 149, and 272C.

ITEM 3. Amend subrules 222.5(1) and 222.5(2) as follows:

222.5(1) Reinstatement of the lapsed license may be granted by the board if the applicant:

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

b. Pays all of the renewal fees then due, to a maximum of five bienniums;

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

d. Pays the reinstatement fees fee; and

e. Provides evidence of:

(1) Satisfactory satisfactory completion of Iowa 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 40 by the number of bienniums since the license lapsed.; or

222.5(2) If the license has lapsed for more than five bienniums or more, the applicant shall:

a. Complete 200 hours of approved continuing education; or

b. Present verification of full–time practice in another state of the United States or the District of Columbia and completion of continuing education for each biennium that the license has lapsed substantially equivalent in the opinion of the board to that required under these rules; or and

c. Successfully complete any or all parts of the national license examination as deemed necessary by the board within one year immediately prior to the submission of such application for reinstatement.

ITEM 4. Amend rule 645—222.9(149,272C) as follows:

645—222.9(149,272C) Reinstatement of inactive practitioners. Inactive practitioners who have been granted a waiver of compliance with these rules and obtained a certificate of exemption shall, prior to engaging in the practice of podiatry in the state of Iowa, satisfy the following requirements for reinstatement.:

222.9(1) Submit written application for reinstatement to the board upon forms provided by the board with the reinstatement fee.;

222.9(2 4) Furnish in the application evidence of one of the following:

a. through c. No change.

ITEM 5. Adopt new 645—Chapter 224 as follows:

CHAPTER 224
DISCIPLINE FOR PODIATRISTS

645—224.1(272C) Discipline. For all acts and offenses listed in this rule, the board may impose any of the disciplinary methods outlined in Iowa Code section 272C.3(2)“a” to “f” including the imposition of a civil penalty which shall not exceed $1000. The board may discipline a licensee for any of the following reasons:

224.1(1) All grounds listed in Iowa Code section 147.55 which are:

a. Fraud in procuring a license.

b. Professional incompetence.

c. Knowingly making misleading, deceptive, untrue or fraudulent representations in the practice of the profession or engaging in unethical conduct or practice harmful or detrimental to the public. Proof of actual injury need not be established.

d. Habitual intoxication or addiction to the use of drugs.

e. Conviction of a felony related to the profession of the licensee or the conviction of any felony that would affect the licensee’s ability to practice within the profession. A copy of the record of conviction or a plea of guilty shall be conclusive evidence.

f. Fraud in representations as to skill or ability.

g. Use of untruthful or improbable statements in advertisements.

h. Willful or repeated violations of the provisions of Iowa Code chapter 147.

224.1(2) Violation of the rules promulgated by the board.

224.1(3) Inability to practice podiatry with reasonable skill and safety by reason of illness, excessive use of alcohol, drugs, narcotics, chemicals, or other type of material or as a result of a mental or physical condition.

224.1(4) Practicing the profession while the license is suspended.

224.1(5) Suspension or revocation of license by another state.

224.1(6) Negligence by the licensee in the practice of the profession, which is a failure to exercise due care including negligent delegation to or supervision of employees or other individuals, whether or not injury results; or any conduct, practice or conditions which impair the ability to safely and skillfully practice the profession.

224.1(7) Prohibited acts consisting of the following:

a. Permitting an unlicensed employee or person under the licensee’s control to perform activities requiring a license.

b. Permitting another person to use the licensee’s license for any purpose.

c. Practicing outside the scope of a license.

d. Obtaining, possessing, or attempting to obtain or possess a controlled substance without lawful authority; or sell–ing, prescribing, giving away, or administering controlled substances for other than lawful therapeutic purposes.

e. Verbally or physically abusing patients.

224.1(8) Unethical business practices, consisting of any of the following:

a. False or misleading advertising.

b. Betrayal of a professional confidence.

c. Falsifying patients’ records.

224.1(9) Failure to report a change of name or address within 30 days after it occurs.

224.1(10) Submission of a false report of continuing education or failure to submit the biennial report of continuing education.

224.1(11) Failure to notify the board within 30 days after occurrence of any judgment or settlement of a malpractice claim or action.

224.1(12) Failure to comply with a subpoena issued by the board.

224.1(13) Failure to report to the board as provided in these rules any violation by another licensee of the reasons for disciplinary action as listed in this rule.

224.1(14) Failure to comply with these rules for preventing HIV and HBV transmission.

224.1(15) Failure to comply with an order of the board requiring a physician to submit to evaluation under Iowa Code section 272C.9(1).

224.1(16) Indiscriminately or promiscuously prescribing, administering or dispensing any drug for other than lawful purpose.

a. Self–prescribing or self–dispensing controlled substances.

b. Prescribing or dispensing controlled substances to members of the licensee’s immediate family for an extended period of time.

(1) Prescribing or dispensing controlled substances to members of the licensee’s immediate family is allowable for an acute condition or on an emergency basis when the physician conducts an examination, establishes a medical record, and maintains proper documentation.

(2) Immediate family includes spouse or life partner, natural or adopted children, grandparent, parent, sibling, or grandchild of the physician; and natural or adopted children, grandparent, parent, sibling, or grandchild of the physician’s spouse or life partner.

c. Prescribing or dispensing controlled substances outside the scope of the practice of podiatry.

This rule is intended to implement Iowa Code chapters 147, 149, and 272C.

ITEM 6. Adopt new 645—Chapter 225 as follows:

CHAPTER 225
FEES

645—225.1(147,149) License fees. All fees are nonrefundable.

225.1(1) Licensure fee for license to practice podiatry, licensure by endorsement, licensure by reciprocity or temporary license is $100.

225.1(2) Biennial license renewal fee is $140 for each biennium.

225.1(3) Late fee for failure to renew before expiration is $50.

225.1(4) Reinstatement fee for a lapsed license or an inactive license is $50.

225.1(5) Duplicate license fee is $10.

225.1(6) Verification of license fee is $10.

225.1(7) Returned check fee is $15.

225.1(8) Disciplinary hearing fee is a maximum of $75.

225.1(9) Temporary license renewal fee is $70 per year.

This rule is intended to implement Iowa Code section 147.8 and Iowa Code chapters 17A, 149 and 272C.

Pursuant to the authority of Iowa Code section 421.14, the Department of Revenue and Finance hereby gives Notice of Intended Action to amend Chapter 10, “Interest, Penalty, Exceptions to Penalty, and Jeopardy Assessments,” Iowa Administrative Code.

Iowa Code section 421.7 requires the Director of the Department of Revenue and Finance to determine the interest rate for each calendar year. The Director has determined that the rate of interest on interest–bearing taxes arising under Title XVI shall be 10 percent for the calendar year 2002 (0.8% per month). The Department will also pay interest at the 10 percent rate on refunds.

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

Any person who believes that the application of the discretionary provisions of this amendment would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any.

The Department has determined that this proposed amendment may have an impact on small business. The Department has considered the factors listed in Iowa Code section 17A.4A. The Department will issue a regulatory analysis as provided in Iowa Code section 17A.4A if a written request is filed by delivery or by mailing postmarked no later than December 3, 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 each qualify as a small business or an organization representing at least 25 such persons.

Any interested person may make written suggestions or comments on this proposed amendment on or before November 30, 2001. 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 convey their views orally 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 November 21, 2001.

This amendment is intended to implement Iowa Code section 421.7.

The following amendment is proposed.

Amend rule 701—10.2(421) by adopting the following new subrule:

10.2(21) Calendar year 2002. The interest rate upon all unpaid taxes which are due as of January 1, 2002, will be 10 percent per annum (0.8% per month). This interest rate will accrue on taxes which are due and unpaid as of, or after, January 1, 2002. In addition, this interest will accrue on tax refunds which by law accrue interest, regardless of whether the tax to be refunded is due before or after January 1, 2002. This interest rate of 10 percent per annum, whether for unpaid taxes or tax refunds, will commence to accrue in 2002.

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 42, “Adjustments to Computed Tax,” and Chapter 52, “Filing Returns, Payment of Tax and Penalty and Interest,” Iowa Administrative Code.

Item 1 adopts new rule 42.16(422), which describes the ethanol blended gasoline tax credit and how that credit is computed. The ethanol blended gasoline tax credit is a new individual income tax credit available to retail dealers of gasoline when more than 60 percent of their sales of gasoline involve ethanol blended gasoline.

Item 2 adopts new rule 52.19(422) for the ethanol blended gasoline tax credit for corporation income tax purposes. This rule is similar to the rule in Item 1.

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

Any person who believes that the application of the discretionary provisions of these amendments would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any.

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. The Department will issue a regulatory analysis as provided in Iowa Code section 17A.4A if a written request is filed by delivery or by mailing postmarked no later than December 3, 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 each 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 November 30, 2001. 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 convey their views orally 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 21, 2001.

These amendments are intended to implement Iowa Code chapter 422 as amended by 2001 Iowa Acts, House File 716.

The following amendments are proposed.

ITEM 1. Amend 701—Chapter 42 by adopting the following new rule:

701—42.16(422) Ethanol blended gasoline tax credit. Effective for tax years beginning on or after January 1, 2002, a retail gasoline dealer may claim an ethanol blended gasoline tax credit against that individual’s individual income tax liability. The taxpayer must operate at least one service station at which more than 60 percent of the total gallons of gasoline sold and dispensed through one or more metered pumps by the taxpayer in the tax year is ethanol blended gasoline. The tax credit shall be calculated separately for each service station site operated by the taxpayer. The amount of the credit for each eligible service station is two and one–half cents multiplied by the total number of gallons of ethanol blended gasoline sold and dispensed through all metered pumps located at that service station during the tax year in excess of 60 percent of all gasoline sold and dispensed through metered pumps at that service station during the tax year.

EXAMPLE: A taxpayer sold 100,000 gallons of gasoline at the taxpayer’s service station site during the tax year, 70,000 gallons of which were ethanol blended gasoline. The taxpayer is eligible for the credit since more than 60 percent of the total gallons sold were ethanol blended gasoline. The number of gallons in excess of 60 percent of all gasoline sold is 70,000 less 60,000, or 10,000 gallons. Two and one–half cents multiplied by 10,000 equals a $250 credit available.

The credit may be calculated on Form IA6478. The credit must be calculated separately for each service station operated by the taxpayer. Therefore, if the taxpayer operates more than one service station site, it is possible that one station may be eligible for the credit while another station may not. The credit can be taken only for those service station sites for which more than 60 percent of gasoline sales involve ethanol blended gasoline.

Any credit in excess of the taxpayer’s tax liability is refundable. In lieu of claiming the refund, the taxpayer may elect to have the overpayment credited to the tax liability for the following tax year.

42.16(1) Definitions. The following definitions are applicable to this rule:

“Ethanol blended gasoline” means the same as defined in Iowa Code section 452A.2.

“Gasoline” means gasoline that meets the specifications required by the department of agriculture and land stewardship pursuant to Iowa Code section 214A.2 that is dispensed through a metered pump.

“Metered pump” means a motor vehicle fuel pump licensed by the department of agriculture and land stewardship pursuant to Iowa Code chapter 214.

“Retail dealer” means a retail dealer as defined in Iowa Code section 214A.1 who operates a metered pump at a service station.

“Sell” means to sell on a retail basis.

“Service station” means each geographic location in this state where a retail dealer sells and dispenses gasoline on a retail basis.

42.16(2) Allocation of credit to owners of a business entity. If the taxpayer that was entitled to the ethanol blended gasoline tax credit is a partnership, limited liability company, S corporation, estate, or trust, the business entity shall 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 ethanol blended gasoline tax credit of $3,000 and one partner of the partnership receives 25 percent of the earnings of the partnership, that partner would receive an ethanol blended gasoline tax credit for the tax year of $750 or 25 percent of the total ethanol blended gasoline tax credit of the partnership.

This rule is intended to implement 2001 Iowa Acts, House File 716, section 2.

ITEM 2. Amend 701—Chapter 52 by adopting the following new rule:

701—52.19(422) Ethanol blended gasoline tax credit. Effective for tax years beginning on or after January 1, 2002, an ethanol blended gasoline tax credit may be claimed against a taxpayer’s corporation income tax liability for retail dealers of gasoline. The taxpayer must operate at least one service station at which more than 60 percent of the total gallons of gasoline sold and dispensed through one or more metered pumps by the taxpayer in the tax year is ethanol blended gasoline. The tax credit shall be calculated separately for each service station site operated by the taxpayer. The amount of the credit for each eligible service station is two and one–half cents multiplied by the total number of gallons of ethanol blended gasoline sold and dispensed through all metered pumps located at that service station during the tax year in excess of 60 percent of all gasoline sold and dispensed through metered pumps at that service station during the tax year.

EXAMPLE: A taxpayer sold 100,000 gallons of gasoline at the taxpayer’s service station site during the tax year, 70,000 gallons of which were ethanol blended gasoline. The taxpayer is eligible for the credit since more than 60 percent of the total gallons sold were ethanol blended gasoline. The number of gallons in excess of 60 percent of all gasoline sold is 70,000 less 60,000, or 10,000 gallons. Two and one–half cents multiplied by 10,000 equals a $250 credit available.

The credit may be calculated on Form IA6478. The credit must be calculated separately for each service station operated by the taxpayer. Therefore, if the taxpayer operates more than one service station site, it is possible that one station may be eligible for the credit while another station may not. The credit can be taken only for those service station sites for which more than 60 percent of gasoline sales involve ethanol blended gasoline.

Any credit in excess of the taxpayer’s tax liability is refundable. In lieu of claiming the refund, the taxpayer may elect to have the overpayment credited to the tax liability for the following tax year.

52.19(1) Definitions. The following definitions are applicable to this rule:

“Ethanol blended gasoline” means the same as defined in Iowa Code section 452A.2.

“Gasoline” means gasoline that meets the specifications required by the department of agriculture and land stewardship pursuant to Iowa Code section 214A.2 that is dispensed through a metered pump.

“Metered pump” means a motor vehicle fuel pump licensed by the department of agriculture and land stewardship pursuant to Iowa Code chapter 214.

“Retail dealer” means a retail dealer as defined in Iowa Code section 214A.1 who operates a metered pump at a service station.

“Sell” means to sell on a retail basis.

“Service station” means each geographic location in this state where a retail dealer sells and dispenses gasoline on a retail basis.

52.19(2) Allocation of credit to owners of a business entity. If the taxpayer that was entitled to the ethanol blended gasoline tax credit is a partnership, limited liability company, S corporation, estate, or trust, the business entity shall 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 ethanol blended gasoline tax credit of $3,000 and one partner of the partnership receives 25 percent of the earnings of the partnership, that partner would receive an ethanol blended gasoline tax credit for the tax year of $750 or 25 percent of the total ethanol blended gasoline tax credit of the partnership.

This rule is intended to implement Iowa Code section 422.33 as amended by 2001 Iowa Acts, House File 716, section 3.

Pursuant to the authority of Iowa Code section 217.6, the Department of Human Services hereby amends Chapter 53, “Rent Subsidy Program,” appearing in the Iowa Administrative Code.

The Council on Human Services adopted these amendments October 10, 2001. Notice of Intended Action regarding these amendments was published in the Iowa Administrative Bulletin on August 22, 2001, as ARC 0882B.

These amendments revise eligibility requirements for the Rent Subsidy Program to add children receiving residential–based supported community living services under the HCBS Mental Retardation waiver program. The Seventy–ninth General Assembly directed that the Department may make subsidy funds available to children receiving services under an HCBS waiver for individuals with mental retardation in residential–based supported community living within available funding.

These amendments also correct departmental addresses.

These amendments do not provide for waivers in specified situations because these amendments confer a benefit by increasing eligibility for the Rent Subsidy Program.

These amendments are identical to those published under Notice of Intended Action.

The Department finds that these amendments confer a benefit on children receiving the residential–based supported community living services by making the children eligible for the Rent Subsidy Program. Therefore, these amendments are filed pursuant to Iowa Code section 17A.5(2)“b”(2).

These amendments are intended to implement Iowa Code section 217.6 and 2001 Iowa Acts, House File 732, section 11, subsection 3, paragraph “b.”

These amendments shall become effective November 1, 2001.

The following amendments are adopted.

ITEM 1. Amend 441—Chapter 53 by amending the parenthetical implementation as follows:

(78GA,ch203 79GA,HF732)

ITEM 2. Amend 441—Chapter 53, Preamble, as follows:

PREAMBLE

This chapter defines and structures the rent subsidyprogram for persons who participate in a home– andcommunity–based service (HCBS) waiver program and who were:

1. Discharged Were discharged from a medical institution in which they have resided,

2. At Are at risk of institutional placement, or

3. Able Were able to leave a medical institution by use of services provided under an HCBS waiver upon turning 18 years of age during the last year of their institutional stay. , or

This program is designed to provide rent assistance to these persons to help them live successfully in their own home and community. An eligible person may receive assistance in meeting rental expense and, in the initial two months of eligibility, in purchasing necessary household furnishings and supplies.

ITEM 3. Amend rule 441—53.1(79GA,HF732) by adopting the following new definitions in alphabetical order:

“Child” or “children” means a person or persons under 18 years of age.

“Residential–based supported community living services” means residential–based supported community living services as defined in 441—subrule 78.41(10).

ITEM 4. Amend rule 441—53.2(79GA,HF732) as follows:

Amend subrules 53.2(1) through 53.2(3) as follows:

53.2(1) HCBS recipient. The person shall be an adult recipient of one of the home– and community–based services waiver programs or a child receiving residential–based supported community living services under the mental retardation home– and community–based services waiver program.

53.2(2) Discharged from a medical institution. Exceptas provided in subrules 53.2(4) and 53.2(5), and except for children receiving residential–based supported communityliving services under the mental retardation home– andcommunity–based services waiver program, the person shall have been discharged from a medical institution on or after July 1, 1995, and immediately prior to receiving HCBS services.

53.2(3) Demonstrated need. To demonstrate need, adult applicants must provide evidence that they are responsible for paying more than 30 percent of their income for rent and that they are not receiving and are ineligible for other rental assistance. In the case of children receiving residential–based supported community living services under the mental retardation home– and community–based services waiver program, they or their families or guardians must provide evidence that the children are not receiving and are ineligible for other rental assistance and that more than 30 percent of the children’s income is obligated for rent.

This program may not be used to substitute for any other subsidy that a person had been receiving at the time of or prior to the time of application to this program. Persons receiving rental assistance at the time of or prior to the time of application to this program shall not be eligible.

Amend subrule 53.2(4), introductory paragraph, as follows:

53.2(4) Risk of institutional placement. Up to 100 persons adults who can avoid placement in a medical institution by accessing this rent subsidy program and by use of services provided under an HCBS waiver shall be eligible for rental assistance. Applicants must meet all eligibility criteria of this program, except the requirements of subrule 53.2(2), and be able to demonstrate both of the following:

Amend subrule 53.2(7) as follows:

53.2(7) Responsible for rent. The person Adult program participants shall be financially responsible for rent or housing costs. In the case of children receiving residential–based supported community living services under the mental retardation home– and community–based services waiver program, they or their families must demonstrate this financial responsibility.

ITEM 5. Amend rule 441—53.3(79GA,HF732), intro–ductory paragraph, as follows:

441—53.3(79GA,HF732) Application. Applications for the rent subsidy program may be obtained at any county office of the department. Applications shall be submitted to the Department of Human Services, Division of Mental Health and Developmental Disabilities, 1305 East Walnut, Hoover State Office Building, Des Moines, Iowa 50319–0114.

ITEM 6. Amend subrule 53.5(2) as follows:

53.5(2) Review packet. The division shall send a review packet, which shall include instructions and necessary forms for verification of continuing eligibility, to all recipients of subsidy payments at least 60 calendar days prior to the deadline date for annual redetermination of eligibility. The completed Form 470–3302, Application for HCBS Rent Subsidy and Household Assistance, and required verification materials shall be submitted annually to the Department of Human Services, Division of Mental Health and Developmental Disabilities, 1305 East Walnut, Hoover State Office Building, Des Moines, Iowa 50319–0114. If the signed application and verification of continuing eligibility are not received by the division by the thirtieth day following the date the review packet is sent, the person’s subsidy shall be terminated.

ITEM 7. Amend the implementation clause following 441—Chapter 53 as follows:

These rules are intended to implement Iowa Code section 217.6 and 1999 Iowa Acts, chapter 203, section 11, subsection 3. 2001 Iowa Acts, House File 732, section 11, subsection 3, paragraph “b.”

[Filed Emergency After Notice 10/10/01, effective 11/1/01]

[Published 10/31/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 10/31/01.

Pursuant to the authority of Iowa Code section 123.21, the Alcoholic Beverages Division of the Department of Commerce hereby amends Chapter 4, “Liquor Licenses—Beer Permits—Wine Permits,” and Chapter 5, “License and Permit Division,” Iowa Administrative Code.

Subrule 4.23(4) is amended to correct a technical error.

Rule 5.9(123) is amended to bring it into compliance with Iowa Code chapter 123 and to correct a technical error.

Notice of Intended Action was published in the Iowa Administrative Bulletin as ARC 0855B on August 8, 2001. Public comments concerning the amendments were accepted until the close of business on August 28, 2001. No public comments were received. These amendments are identical to those published under Notice of Intended Action.

These amendments are intended to implement IowaCode sections 123.95, 123.30(1)“c,” 123.43, 123.127(3) and 123.175(3).

These amendments will become effective December 5, 2001.

The following amendments are adopted.

ITEM 1. Amend subrule 4.23(4), paragraph “f,” as follows:

f. One where no admission fees or other kinds of entrance fees, fare, ticket, donation or charges are made or are required of the invited guests to enter the location.

ITEM 2. Amend rule 185—5.9(123) as follows:

185—5.9(123) Surety bond requirements. A $5,000 penal bond must be filed with the division with each application for a Class “A” wine permit, Class “A” beer permit, special Class “A” beer permit and manufacturer’s liquor control license. A $500 $5,000, $10,000 or $15,000 penal bond must be filed with the division for a retail beer permit with each application for a Class “E” liquor control license. A Class “E” liquor control licensee may determine the amount of the bond to be posted with the division, and may increase or decrease the face amount of the bond in increments of $5,000 on one occasion during the licensee’s first year of business. Thereafter, a licensee may increase or decrease the face amount of the bond in increments of $5,000 only when the liquor control license is renewed. Each penal bond must meet the following requirements.

5.9(1) Certificate of authority. It must be issued by a company holding a current certificate of authority from the commissioner of insurance authorizing the company to issue bonds in Iowa.

5.9(2) Forfeiture of beer or liquor bond. It must contain a provision for the principal and surety to consent to the forfeiture of principal sum of the bond in the event of revocation of the license or permit by the violation of any Iowa Code provision which requires forfeiture of the bond.

5.9(3) Cancellation. An insurance A surety company or an insured a principal may cancel a liability policy bond by giving a minimum of 30 days’ prior written notice to this division of the party’s intent to cancel the liability policy bond. The 30–day period shall begin commence on the date that this division receives the notice of cancellation. The party seeking to cancel a liability policy bond shall mail written notice of such cancellation to the division in Ankeny, Iowa, by certified mail, and further shall mail a copy of the notice of cancellation to the other party, at that party’s post office address. The notice of cancellation shall contain: the name of the party to whom the copy of the notice of cancellation was mailed, the address to which the copy of the notice of cancellation was sent, the date on which the notice of cancellation was mailed, the date the liability policy bond is being canceled, and the liquor control license or permit number of the licensee or permittee to be affected by such cancellation.

5.9(4) Proof of bond. A licensee or permittee shall be deemed to have furnished a surety bond when it the licensee or permittee has filed with the division at its offices in Ankeny, Iowa, a form described by 185—subrule 12.2(7).

5.9(5) Alternate for surety bond. Rescinded IAB 5/15/91, effective 6/19/91.

5.9(6) Two bonds. Rescinded IAB 5/15/91, effective 6/19/91.

This rule is intended to implement Iowa Code sections 123.21, 123.30, 123.128 and 123.129.

[Filed 10/12/01, effective 12/5/01]

[Published 10/31/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 10/31/01.

Pursuant to the authority of Iowa Code section 249A.4, the Department of Human Services hereby amends Chapter 50, “Application for Assistance,” Chapter 75, “Conditions of Eligibility,” Chapter 76, “Application and Investigation,” and Chapter 177, “In–Home Health Related Care,” appearing in the Iowa Administrative Code.

The Council on Human Services adopted these amendments October 10, 2001. Notice of Intended Action regarding these amendments was published in the Iowa Administrative Bulletin on August 22, 2001, as ARC 0881B.

These amendments make technical changes to the application and eligibility determination process to the Medicaid program as follows. The amendments:

• Replace various application and review forms with a simplified and shortened Health Services Application and provide that the simplified and shortened application form will also be used for the Medically Needy recertification. The General Assembly directed the Department in 2001 Iowa Acts, House File 732, section 7, subsection 14, to simplify the Medically Needy recertification process. The use of the revised Health Services Application for recertification reduces the paperwork for recertification.

• Delete obsolete references to the X–PERT system and to forms used by the X–PERT system.

• Delete references to retrospective budgeting. The Medicaid program now uses prospective budgeting for determining eligibility and benefits.

• Update some form numbers and cross references to the Medically Needy program.

• Replace obsolete references to the Family Investment Program with the Family Medical Assistance Program.

These amendments do not provide for waivers in specified situations because they are technical in nature and confer a benefit on the applicants. Applicants may apply for a waiver under the Department’s general rule on exceptions at rule 441—1.8(17A,217).

The following revisions were made to the Notice of Intended Action:

• A form number was corrected in subrule 75.1(23), paragraph “f,” and subrule 177.4(10) which were not included in the Notice.

• Rule 441—76.7(249A) was revised and the proposed change in the review process for foster children and children in subsidized adoption is not incorporated. The entire foster care review process is under review and the decision was made not to make any changes at the present time.

These amendments are intended to implement Iowa Code sections 249.4 and 249A.4.

These amendments shall become effective January 1, 2002.

The following amendments are adopted.

ITEM 1. Amend subrule 50.2(3) as follows:

50.2(3) Any person applying for payment for residential care shall make application at a local or area office of the department of human services or at the residential care facility where the person resides. Any person applying for a dependent person allowance shall make application at a local or area office of the department. Any person applying for payment for a protective living arrangement or in–home, health–related care shall make application at a local or area office of the department. An application may also be filed directly with an income maintenance worker at any departmental satellite office or in any disproportionate share hospital, federally qualified health center or other facility in which outstationing activities are provided.

The application shall be made on the Application forMedical Assistance or State Supplementary Assistance, PA–1107–0, or the Application for Assistance, Part 1, Form 470–3112, or Form 470–3122 (Spanish) Health Services Application, Form 470–2927. The application shall be signed by the applicant or the authorized representative. Someone acting responsibly for an incapacitated, incompetent, or deceased person may sign the application on the person’s behalf. Applicants whose cases are selected for the X–PERT system but whose eligibility cannot be determined through X–PERT may be requested to complete Form PA–1107–0. For cases selected for the X–PERT system, Part 2 of theapplication is the Summary of Facts, Form 470–3114, produced at the interview. The Summary of Facts, Form 470– 3114, is attached to the Summary Signature Page, Form 470–3113 or Form 470–3123 (Spanish). Eligibility does not exist until the Summary Signature Page, Form 470–3113 or Form 470–3123 (Spanish) is signed by the applicant, guardian, conservator or representative and returned to the local or area office within five working days.

a. to d. No change.

ITEM 2. Amend rule 441—50.4(249) as follows:

Amend subrule 50.4(3) as follows:

50.4(3) For purposes of an annual review to be per–formed by the department, Form 470–3118, Medically Needy Recertification/State Supplementary and Medicaid Review 470–2927, Health Services Application, shall be completed.

Rescind and reserve subrule 50.4(4).

ITEM 3. Amend rule 441—75.1(249A) as follows:

Amend subrule 75.1(23), paragraph “f,” as follows:

f. Submit an application prior to July 1, 1988, on Form PA–1107 470–0442, Application for Medical Assistance or State Supplementary Assistance.

Amend subrule 75.1(35) as follows:

Amend paragraph “i” as follows:

i. Reviews. Reviews of eligibility shall be made for SSI–related, CMAP–related, and FMAP–related medically needy recipients with a zero spenddown as often as circumstances indicate but in no instance shall the period of time between reviews exceed 12 months.

SSI–related, CMAP–related, and FMAP–related medically needy persons shall complete Form 470–3118, Medically Needy Recertification/State Supplementary and Medicaid Review 470–2927, Health Services Application, as part of the review process when requested to do so by the county office.

Amend paragraph “j,” subparagraph (1), as follows:

(1) The Medically Needy Recertification/State Supplementary and Medicaid Review Health Services Application, Form 470–3118 470–2927, shall be used to determine eligibility for SSI–related medically needy when an SSI recipient has been determined to be ineligible for SSI due to excess income or resources in one or more of the months after the effective date of the SSI eligibility decision.

Amend paragraph “k” as follows:

k. Recertifications. A new application shall be made when the certification period has expired and there has been a break in assistance as defined at rule 441—75.25(249A). When the certification period has expired and there has not been a break in assistance, the person shall use the Medically Needy Recertification/State Supplementary and Medicaid Review Health Services Application, Form 470–3118 470– 2927, to be recertified. This form shall be treated as an application. For cases on the X–PERT system, if an interview is required as specified at subparagraph 75.1(35)“j”(2), the applicant may complete Form 470–3112 or 470–3122 (Spanish). When the applicant completes Form 470–3112 or Form 470–3122 (Spanish), the Summary of Facts, Form 470–3114, shall be completed and attached to the Summary Signature Page, Form 470–3113 or Form 470–3123 (Spanish), which has been signed and returned to the local or area office.

ITEM 4. Amend subrule 75.21(5), paragraph “d,” as follows:

d. The premium is used to meet a spenddown obligation under the medically needy program, as provided in 441— Chapter 86 subrule 75.1(35), when all persons in the household are eligible or potentially eligible only under the medically needy program. When some of the household members are eligible for full Medicaid benefits under coverage groups other than medically needy, the premium shall be paid if it is determined to be cost–effective when considering only the persons receiving full Medicaid coverage. In those cases, the premium shall not be allowed as a deduction to meet the spenddown obligation for those persons in the household participating in the medically needy program.

ITEM 5. Amend subrule 75.22(1), paragraph “c,” as follows:

c. The person shall not be eligible for Medicaid. The person shall be required to apply for Medicaid benefits when it appears Medicaid eligibility may exist. Persons who are required to meet a spenddown obligation under the medically needy program, as provided in 441—Chapter 86 subrule 75.1(35), are not considered Medicaid–eligible for the purpose of establishing eligibility under these provisions.

When Medicaid eligibility is attained, premium payments shall be made under the provisions of rule 441— 75.21(249A) if all criteria of that rule are met.

ITEM 6. Amend rule 441—75.25(249A) by rescinding the definition of “X–PERT.”

ITEM 7. Amend rule 441—76.1(249A), introductory paragraphs, as follows:

441—76.1(249A) Application. An application for family medical assistance–related Medicaid programs shall be submitted on the Public Assistance Application, Form PA–2207–0 470–0462 or Form PA–2230–0 470–0466 (Spanish), the Health Services Application, Form 470–2927, the Application for Assistance, Part 1, Form 470–3112 or Form 470–3122 (Spanish), or the Healthy and Well Kids in Iowa (HAWK–I) Application, Form 470–3526, and the Supplement to the Healthy and Well Kids in Iowa (HAWK–I) Application, Form 470–3564. The Medically Needy Recertification/State Supplementary and Medicaid Review Health Services Application, Form 470–3118 470–2927, shall be used instead of Form 470–3112 or 470–3122 (Spanish) for persons applying for assistance under the medically needy program as provided at 441—subrule 75.1(35) if an interview is not required.

An application for SSI–related Medicaid shall besubmitted on the Application for Medical Assistance orState Supplementary Assistance, Form PA–1107–0, or Application for Assistance, Part 1, Form 470–3112 or Form 470–3122 (Spanish) Health Services Application, Form 470–2927. The Medically Needy Recertification/State Supplementary and Medicaid Review, Form 470–3118, The Health Services Application, Form 470–2927, shall be used instead of Form 470–3112 or 470–3122 (Spanish) for persons applying for assistance under the medically needy program as provided at 441—subrule 75.1(35) if an interview is not required.

A person who is a recipient of supplemental security income (SSI) benefits shall not be required to complete a separate Medicaid application. If the county office does not have all information necessary to establish that an SSI recipient meets all Medicaid eligibility requirements, the SSI recipient may be required to complete Form 470–2304 or 470–0364, Medicaid Information Questionnaire for SSI Persons, and may be required to attend an interview to clarify information on this form.

An application for Medicaid for persons in foster care shall be submitted on Form 470–2779, Foster Care Medicaid Application Form 470–2927, Health Services Application.

ITEM 8. Amend subrule 76.1(2) as follows:

76.1(2) Date and method of filing application. An application is considered filed on the date an identifiable application, Form 470–0442, 470–0462, 470–0466 (Spanish), or 470–2927, or Form 470–3112 or 470–3122 (Spanish), is received and date–stamped: (1) in any local or area office of the department, or (2) by an income maintenance worker in any satellite office of the department, or (3) by a designated worker in a disproportionate share hospital, federally qualified health center, or other facility in which outstationing activities are provided, or (4) by the third–party administrator who has contracted with the department to administer the healthy and well kids in Iowa (HAWK–I) program as provided at 441—Chapter 86. An identifiable application, Form 470–2927, which is filed to apply for FMAP or FMAP–related Medicaid at a WIC office, well child health clinic, maternal health clinic, or the office of a qualified provider for presumptive eligibility for pregnant women shall be considered filed on the date received and date–stamped in one of these offices. An application so received shall be forwarded within two working days to the department office responsible for completion of the eligibility determination. When a Healthy and Well Kids in Iowa (HAWK–I) Application, Form 470– 3526, is filed with the third–party administrator and subsequently referred to the department for a Medicaid eligibility determination, the date the application is received and date–stamped by the third–party administrator shall be the filing date. A faxed application is considered filed on the date the faxed application is received in one of the places described above, if the fax is received during normal business hours. If the fax is received after normal business hours, such as evenings, weekends or holidays, the faxed application shall be considered received on the next normal business day. Before the faxed application can be approved, the original application with the applicant’s original signature must be received by the department.

An identifiable application is an application containing a legible name, address and signature. If an authorized representative signed the application on behalf of an applicant, the original signature of the applicant or the responsible person must be on the application before the application can be approved. For FMAP and FMAP–related Medicaid, the original signature of each and every parent or stepparent in the home must be on the application before the application can be approved.

ITEM 9. Amend rule 441—76.7(249A) as follows:

441—76.7(249A) Reinvestigation. Reinvestigation shall be made as often as circumstances indicate but in no instance shall the period of time between reinvestigations exceed 12 months.

The recipient shall supply, insofar as the recipient is able, additional information needed to establish eligibility within five working days from the date a written request is issued. The recipient shall give written permission for the release of information when the recipient is unable to furnish information needed to establish eligibility. Failure to supply the information or refusal to authorize the county office to secure information from other sources shall serve as a basis for cancellation of Medicaid.

Eligibility criteria for persons whose eligibility for Medicaid is related to the family medical assistance program shall be reviewed according to policies found in rule 441— 75.52(249A).

Persons whose eligibility for Medicaid is related to supplemental security income shall complete Form 470–3118, Medically Needy Recertification/State Supplementary and Medicaid Review, as part of the reinvestigation process when requested to do so by the county office.

The review for foster children or children in subsidized adoption shall be completed on Form 470–2914, Foster Care and Subsidized Adoption Medicaid Review, according to the time schedule of the family medical assistance program or supplemental security income program for disabled children, as applicable.

ITEM 10. Amend subrule 76.10(5) by rescinding paragraph “c.”

ITEM 11. Amend subrule 76.12(7), paragraph “b,” subparagraph (2), as follows:

(2) Creation of an undue hardship for the person seeking a waiver of estate recovery. Undue hardship exists when total household income is less than 200 percent of the poverty level for a household of the same size, total household resources do not exceed $10,000, and application of estate recovery would result in deprivation of food, clothing, shelter, or medical care such that life or health would be endangered as determined by the department on a case–by–case basis. For this purpose, income and resources shall be defined as under the family investment program family medical assistance program.

ITEM 12. Rescind and reserve rule 441—76.13(249A).

ITEM 13. Amend subrule 177.4(10), introductory paragraph, as follows:

177.4(10) Application. Application for in–home health related care shall be made on Form 470–0442 470–2927, Application for Medical Assistance or State Supplementary Assistance Health Services Application. An eligibility determination shall be completed within 30 days from the date of

the application, unless one or more of the following conditions exist:

[Filed 10/10/01, effective 1/1/02]

[Published 10/31/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 10/31/01.

Pursuant to the authority of Iowa Code section 217.6 and 2000 Iowa Acts, chapter 1228, section 13, subsection 2, paragraph “a,” and section 44, and 2001 Iowa Acts, House File 732, section 11, subsection 2, and section 49, the Department of Human Services hereby amends Chapter 52, “Payment,” and Chapter 177, “In–Home Health Related Care,” appearing in the Iowa Administrative Code.

These amendments increase the maximum and flat State Supplementary Assistance (SSA) residential care facility (RCF) and in–home health related care (IHHRC) reimbursement rates and pass along an August 1, 2001, Supplemental Security Income (SSI) cost–of–living adjustment increase in several State Supplementary Assistance (SSA) categories.

The maximum and flat SSA RCF reimbursement rates will be increased retroactively effective June 1, 2001. The maximum RCF reimbursement rate will be increased from $25.14 per day to $33.06 per day for one month effective June 1, 2001, and to $25.92 per day effective August 1, 2001, and ongoing. The flat RCF reimbursement rate will be increased from $17.96 per day to $23.62 per day for one month effective June 1, 2001, and to $18.52 per day effective August 1, 2001, and ongoing. The monthly IHHRC reimbursement rate will be increased from $483.31 per month to $498.29 effective August 1, 2001, and ongoing.

The Seventy–eighth and Seventy–ninth General Assemblies directed that the Department may take actions to meet the federal pass–along requirement mandated by Title XVI of the Social Security Act, Section 1618, if necessary. These rate increases are necessary to meet the federal pass–along requirements for calendar year 2001.

In order to comply with the federal pass–along requirement of $19,575,651 in calendar year 2001 and to make up a shortfall in meeting the federal pass–along requirement of $221,200 in calendar year 2000, Iowa’s total SSA expenditures must be at least $19,796,851. Based on current projections, the Department projects that calendar year 2001 may be short of this required spending level by $851,048. This spending shortfall is attributable to a decline in in–home health–related care and residential care facility usage. Current projections indicate that a 31.50 percent increase in the RCF rates for June 2001, and an ongoing increase of 3.1 percent in the RCF and IHHRC reimbursement rates are necessary to ensure compliance with the pass–along requirement in calendar year 2001. The large retroactive payment in June for RCFs is being adopted to use a state surplus for state fiscal year 2001.

Effective August 1, 2001, the SSI benefit increased to adjust for an error in the January 2000 cost–of–living percentage increase. This change will pass along a $1 increase per month in benefits to clients with a dependent relative and to clients in family life homes.

These amendments do not provide for waiver in specified situations because they confer a benefit on clients in RCFs and IHHRC and clients with a dependent relative and in family life homes and are required to meet the federal pass–along requirement, as mandated by the legislature. Individuals may request a waiver of the monthly IHHRC reimbursement under the Department’s general rule on exceptions at rule 441—1.8(17A,217).

These amendments were previously Adopted and Filed Emergency and published in the August 8, 2001, Iowa Administrative Bulletin as ARC 0839B. Notice of Intended Action to solicit comments on that submission was published in the August 8, 2001, Iowa Administrative Bulletin as ARC 0840B.

These amendments are identical to those published under Notice of Intended Action.

The Council on Human Services adopted these amendments October 10, 2001.

These amendments are intended to implement Iowa Code sections 249.3(2) and 249.4 and 2000 Iowa Acts, chapter 1228, section 13, subsection 2, paragraph “a,” and 2001 Iowa Acts, House File 732, section 11, subsection 2.

These amendments shall become effective January 1, 2002, at which time the Adopted and Filed Emergency amendments are hereby rescinded.

The following amendments are adopted.

ITEM 1. Amend rule 441—52.1(249) as follows:

Amend subrule 52.1(1) as follows:

52.1(1) Protective living arrangement. The following assistance standards have been established for state supplementary assistance for persons living in a protective living arrangement:

Family life home certified under rules in 441—Chapter 111.

Amend subrule 52.1(2), paragraphs “a” and “c,” as follows:

Amend subrule 52.1(3), introductory paragraph, as follows:

52.1(3) Residential care. Payment to a recipient in a residential care facility shall be made on a flat per diem rate of $17.96 $23.62 for the month of June 2001, $17.96 for the month of July 2001, and $18.52 for the month of August 2001 and ongoing, or on a cost–related reimbursement system with a maximum reimbursement per diem rate of $25.14 $33.06 for the month of June 2001, $25.14 for the month of July 2001, and $25.92 for the month of August 2001 and ongoing. A cost–related per diem rate shall be established for each facility choosing this method of payment according to rule 441—54.3(249).

ITEM 2. Amend rule 441—177.4(249) as follows:

Amend subrule 177.4(3) as follows:

177.4(3) Maximum costs. The maximum cost of service shall be $483.31 $498.29. The provider shall accept the payment made and shall make no additional charges to the recipient or others.

Amend subrule 177.4(7), introductory paragraph, as follows:

177.4(7) Income for adults. The gross income of the individual and spouse, living in the home, shall be limited to $483.31 $498.29 per month if one needs care or $966.62 $996.58 if both need care, with the following disregards:

Amend subrule 177.4(8), paragraph “b,” introductory paragraph, as follows:

b. The income of the child shall be limited to $483.31 $498.29 per month with the following disregards:

[Filed 10/10/01, effective 1/1/02]

[Published 10/31/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 10/31/01.

Pursuant to the authority of Iowa Code section 217.6, the Department of Human Services hereby amends Chapter 57, “Interim Assistance Reimbursement,” appearing in the Iowa Administrative Code.

The Council on Human Services adopted these amendments October 10, 2001. Notice of Intended Action regarding these amendments was published in the Iowa Administrative Bulletin on August 22, 2001, as ARC 0883B.

These amendments update policy governing the Interim Assistance Reimbursement program to reflect changes in federal law and general procedures.

The Federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (P.L. 104–193) changed the initial date that federal Supplemental Security Income (SSI) payments begin for eligible clients. This change affects the interim period eligible for reimbursement under the Interim Assistance Reimbursement program. P.L. 104–193 also changed the way past due monthly benefits are paid to SSI eligibles, which affects how county agencies receive their interim assistance reimbursement check from the Social Security Administration. If past due monthly benefits equal or exceed 12 times the maximum monthly benefits payable to an SSI eligible, the payments are made to the individual in installments. These changes bring rules into conformance with current policy.

These amendments do not provide for waivers in specified situations because the changes are required by the Federal Personal Responsibility and Work Opportunity Reconciliation Act with no provision for waivers.

These amendments are identical to those published under Notice of Intended Action.

These amendments are intended to implement Iowa Code chapter 249 and 1984 Iowa Acts, chapter 1310, section 9.

These amendments shall become effective January 1, 2002.

The following amendments are adopted.

ITEM 1. Amend rule 441—57.1(249) as follows:

Amend the definitions of “county agency,” “initial payment,” “initial posteligibility payment,” “interim period,” and “SSI,” as follows:

“County agency” means a county relief or veteran affairs agency or county subdivision under the jurisdiction of the county board of supervisors which furnishes relief in the form of cash or vendor payments to or in behalf of needy individuals in accordance with established standards under the provisions of Iowa Code chapter 250 35B or 252.

“Initial payment” is means the amount of benefits determined by the Secretary Commissioner to be payable to an eligible individual (including any retroactive amounts) at the time the individual is first determined to be eligible under Title XVI of the Act. It does not include any emergency advance payment payments, any presumptive disability or blindness payments, or any immediate payments authorized under Section 1631 of the Act.

“Initial posteligibility payment” means the amount of benefits determined by the Secretary Commissioner to be payable to an eligible individual (including any retroactive amounts) at the time the individual is first determined eligible under Title XVI of the Act following a period of suspension or termination. This term does not include any emergency advance payments, any presumptive disability or blindness payments, or any immediate payments authorized under Section 1631 of the Act.

“Interim period” is the time span beginning with (1) the day on which the individual filed an application for benefits, and was found eligible, and ending with (and including) the month the individual’s benefits began, and (2) during the period, beginning with the day the individual’s benefits were reinstated after a period of suspension or termination, and ending with (and including) the month the individual’s benefits were reinstated means the period (1) beginning with the month following the month in which the individual filed an application for SSI benefits, for which the individual was found to be eligible, and ending with (and including) the month the individual’s benefits began, or (2) beginning the day the person’s SSI benefits were reinstated after a period of suspension or termination, and ending with (and including) the month the individual’s SSI benefits were resumed. The interim period does not include any periods during which the individual is underpaid by the Social Security Administration due to that agency’s failure to make a timely modification of the individual’s SSI benefit or for any other reason.

“SSI” means supplemental security income for the aged, blind, and disabled which is a federal cash assistance program under Title XVI of the Social Security Act.

Rescind the definition of “secretary.”

Adopt the following new definition in alphabetical order:

“Commissioner” means the Commissioner of the Social Security Administration or the Commissioner’s delegate.

ITEM 2. Amend rule 441—57.2(249) as follows:

Amend the introductory paragraph as follows:

441—57.2(249) Requirements for reimbursement. The county agency must have a written agreement with the department of human services in order to receive reimbursement for interim assistance payments. The agreement must be on Form PA–6110 470–1948, Interim Assistance Reimbursement Agreement, or Form 470–3857, Interim Assistance Reimbursement Agreement (Veterans Affairs). This agreement will provide that:

Amend subrules 57.2(1), 57.2(4), 57.2(5), and 57.2(8) as follows:

57.2(1) The county agency will secure written authorization from the individual for the Secretary Commissioner to withhold the individual’s initial payment or initial posteligibility payment and make these payments payable to the county agency using Form 470–1950, Initial Interim Assistance Reimbursement Authorization, or Form 470–2551, Posteligibility Interim Assistance Reimbursement Authorization. These forms shall also be used by the The individual shall also use these forms to indicate an intent to apply for SSI benefits. The county agencies are designated by the Secretary Commissioner to accept these forms which protect the individual’s filing date for SSI benefits.

57.2(4) The county agency will provide the individual with a written explanation of the apportionment on Form PA–6108 470–1949, Interim Assistance Notice of Apportionment, showing the amount of the payment received by the county agency from the Social Security Administration, the amount retained by the county agency for reimbursement and the excess amount, if any, due the individual and provide the individual with the right to a hearing before the county board of supervisors or the county commission of veterans affairs on disputes arising from the apportionment of the payment.

57.2(5) The county agency shall maintain a file for each individual who has received interim assistance and maintain adequate records of all transactions made relating to interim assistance and the apportionment of the individual’s initial payment. The following records shall be maintained for each individual:

a. Identification. Name, social security number, address, telephone number.

b. Assistance furnished. Date paid, amount of payment, to whom paid, needs covered by the payment, county warrant number.

c. Reimbursement check. Date received from the Social Security Administration, amount of the check, amount withheld as reimbursement, amount paid to the individual, county warrant number, date paid to the individual.

d. Disputes. Date received, issue, action taken, resolution.

e. Documentation. Original Copy of authorization form executed by the individual, apportionment document received by the Social Security Administration, notice of apportionment forwarded to the individual, all pertinent correspondence to and from the individual, copy of SSI award notice, a copy of correspondence related to vendor payments made.

Records shall be maintained for a period of five years subsequent to the date of receipt by the county agency of interim assistance reimbursement and shall be available to the department of human services or the Social Security Administration on request.

57.2(8) The county agency or the department of human services may terminate the agreement at any time upon 30 days’ written notice to the other party. If the agreement is terminated by either party, the department of human services and the county agency agree that all cases for which the county agency has obtained Form PA–6109 470–1950, Initial Interim Assistance Reimbursement Authorization, or Form 470–2551, Posteligibility Interim Assistance Reimbursement Authorization, shall be processed by the county agency in accordance with the agreement.

ITEM 3. Amend rule 441—57.6(249) as follows:

441—57.6(249) Notice of interim assistance reimbursement eligibility and accountability. The Social Security Administration will forward to the county Form SSA–8125, SSI Supplemental Security Income Notice of Interim Assistance Reimbursement Eligibility and Accountability Report, indicating the disposition of the individual’s SSI claim (i.e., denial or allowance). This form also provides the county agency with a method of accounting on an individual case basis for the disposition of interim assistance reimbursement funds received from the Social Security Administration. The county agency will receive Form SSA–8125 on every case where the individual has signed an interim assistance authorization and the authorization is processed by the Social Security Administration prior to a final determination on SSI eligibility.

ITEM 4. Amend rule 441—57.7(249A) as follows:

441—57.7(249A 249) Certification Certificate of authority. The county agency shall submit the name, title, and signature of each official of the county agency authorized to sign the Supplemental Security Income Notice of Interim Assistance Eligibility Reimbursement, Form SSA–8125, on the Certificate of Authority, Form PA–6111 470–1947, to the regional office of the department. Form PA–6111 470–1947 shall be submitted prior to the date the agency first participates in the program and subsequently when changes in authorized officials occur.

[Filed 10/10/01, effective 1/1/02]

[Published 10/31/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 10/31/01.

Pursuant to the authority of Iowa Code section 249A.4, the Department of Human Services hereby amends Chapter 79, “Other Policies Relating to Providers of Medical and Remedial Care,” appearing in the Iowa Administrative Code.

The Council on Human Services adopted these amendments October 10, 2001. Notice of Intended Action regarding these amendments was published in the Iowa Administrative Bulletin on August 22, 2001, as ARC 0884B.

These amendments establish policy regarding disproportionate share payments from the Graduate Medical Education and Disproportionate Share Fund (fund) when a hospital no longer qualifies for disproportionate share payments.

The amount that would have been paid to a hospital that no longer qualifies will be removed from the fund.

The paragraph regarding automatic additions to or subtractions from the Graduate Medical Education and Disproportionate Share Fund when the average monthly Medicaid population deviates from the previous year’s averages by greater than 5 percent is rescinded.

In place of the automatic increases, increases in utilization are added to inflation as a reason that adjustments may be made, subject to legislative appropriations. The Department cannot automatically increase the amount allocated based on increased utilization if funds for such an increase have not been appropriated.

These amendments do not provide for waivers in specified situations because all hospitals should be subject to the same formula for fund payments.

These amendments are identical to those published under Notice of Intended Action.

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

These amendments shall become effective January 1, 2002.

The following amendments are adopted.

ITEM 1. Amend subrule 79.1(5), paragraph “y,” subparagraphs (2), (5), (8) and (9), as follows:

(2) Allocation to fund for direct medical education. Except as reduced pursuant to subparagraph 79.1(5)“y”(3), the total amount of funding that is allocated to the graduate medical education and disproportionate share fund for direct medical education related to inpatient services for July 1, 2000, through June 30, 2001, is $8,314,810. Adjustments may be made to this amount for inflation or utilization increases, subject to legislative appropriations. , and for utilization increases as established in paragraph 79.1(5)“z.”

(5) Allocation to fund for indirect medical education. Except as reduced pursuant to subparagraph 79.1(5)“y”(6), the total amount of funding that is allocated to the graduate medical education and disproportionate share fund for indirect medical education for July 1, 2000, through June 30, 2001, is $14,599,413. Adjustments may be made to this amount for inflation or utilization increases, subject to legislative appropriations. , and for utilization increases as established in paragraph 79.1(5)“z.”

(8) Allocation to fund for disproportionate share. The total amount of funding that is allocated to the graduate medical education and disproportionate share fund for disproportionate share payments for July 1, 2000, through June 30, 2001, is $6,978,925. Adjustments may be made to this amount for inflation or utilization increases, subject to legislative appropriations. , and for utilization increases as established in paragraph 79.1(5)“z.”

(9) Distribution to qualifying hospitals for disproportionate share. Distribution of the amount in the fund for disproportionate share shall be on a monthly basis. To determine the amount to be distributed to each qualifying hospital for disproportionate share, the following formula is used: Multiply the total of all DRG weights for claims paid July 1, 1999, through June 30, 2000, for each qualifying hospital qualifying during the fiscal year used to determine the hospital’s low–income utilization rate and the Medicaid utilization rate by each hospital’s disproportionate share rate to obtain a dollar value. The dollar values for each hospital are summed, then each hospital’s dollar value is divided by the total dollar value, resulting in a percentage. Each hospital’s percentage is multiplied by the amount allocated for disproportionate share to determine the payment to each hospital. Effective for payments from the fund for July 2003, the state fiscal year used as the source of DRG weights shall be updated to July 1, 2002, through June 30, 2003. Thereafter, the state fiscal year used as the source of DRG weights shall be updated by a three–year period effective for payments from the fund for July of every third year. In compliance with Medicaid Voluntary Contribution and Provider Specific Tax Amendments (Public Law 102–234) and 1992 Iowa Acts, chapter 1246, section 13, the total of disproportionate share payments from the fund and supplemental disproportionate share payments pursuant to paragraph 79.1(5)“ab” cannot exceed the amount of the federal cap under Public Law 102–234. If a hospital fails to qualify for disproportionate share payments from the fund due to closure or for any other reason, the amount of money that would have been paid to that hospital shall be removed from the fund.

ITEM 2. Rescind and reserve subrule 79.1(5), paragraph “z.”

[Filed 10/10/01, effective 1/1/02]

[Published 10/31/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 10/31/01.

Pursuant to the authority of Iowa Code section 249A.4, the Department of Human Services hereby amends Chapter 79, “Other Policies Relating to Providers of Medical and Remedial Care,” appearing in the Iowa Administrative Code.

The Council on Human Services adopted these amendments October 10, 2001. Notice of Intended Action regarding these amendments was published in the Iowa Administrative Bulletin on August 22, 2001, as ARC 0885B.

The amendments clarify policy regarding requests for prior authorization and make technical changes to the general policy that governs Medicaid providers as follows:

• Form names and numbers used by Medicaid providers are revised.

• References are updated, and outdated nomenclature is corrected.

These amendments do not provide for waivers because they only change form names and numbers, update references, and make technical corrections to outdated nomenclature.

These amendments are identical to those published under Notice of Intended Action.

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

These amendments shall become effective January 1, 2002.

The following amendments are adopted.

ITEM 1. Amend subrule 79.2(3), paragraph “g,” as follows:

g. One hundred percent review of the provider’s claim claims prior to payment.

ITEM 2. Amend rule 441—79.6(249A), introductory paragraph, as follows:

441—79.6(249A) Provider participation agreement. Providers of medical and health care wishing to participate in the program shall execute an agreement with the department on Form XIX (PA–1) 470–2965, Agreement Between Provider of Medical and Health Services and the Iowa Department of Human Services re Regarding Participation in the Medical Assistance Program.

ITEM 3. Amend rule 441—79.7(249A) as follows:

Amend subrule 79.7(4), introductory paragraph, as follows:

79.7(4) Meetings. The council shall meet at least four times each year. At least two of these meetings shall be with the department of human services. Additional meetings may be called by the chairperson, upon written request of at least 50 percent of the members, or by the commissioner director of the department of human services.

Amend subrule 79.7(7), paragraph “e,” as follows:

e. The department shall present the biennial annual budget for the medical assistance program for review and comment.

ITEM 4. Amend subrules 79.8(1) and 79.8(9) as follows:

79.8(1) Requests for prior approval for any items or procedures other than prescription drugs shall be made using Form XIX P Auth 470–0829, Request for Prior Authorization. For prior authorization of prescription drugs, requests Requests not related to prior authorization for dental procedures may be made submitted by telephone, facsimile (fax) or mail. Requests for prior authorization made by fax or by mail shall be made using Form XIX Drug P Auth, Request for Drug Prior Authorization for drugs may also be made by telephone.

Requests for prior approval shall be sent to Consultec, Inc., P.O. Box 14422, Des Moines, Iowa 50306–3422. The request should include the relevant criteria applicable to the particular service, medication or equipment, for which prior approval is sought, according to the criteria outlined in rule 441—78.28(249A). Copies of history and examination results may be attached to rather than incorporated in the letter.

79.8(9) Unless the prior authorization request is made for prescription drugs, recipients shall receive a notice of decision upon a denial of request for prior approval pursuant to 441—Chapter 7. The fiscal agent shall mail the notice of decision to the recipient, Form MA–3028, shall be mailed within five working days of the date the prior approval form is returned to the provider. In the case of prior authorization for drugs, no the fiscal agent shall not issue a notice of denial will be issued to recipients.

ITEM 5. Amend rule 441—79.14(249A) as follows:

Amend subrule 79.14(1), paragraph “a,” subparagraph (9), as follows:

(9) Inpatient and outpatient general hospitals. Inpatient and outpatient general hospitals shall also complete Form 2977, Supplemental Hospital Information Enrollment Form.

Amend subrule 79.14(6) as follows:

79.14(6) Providers approved for certification as a Medicaid provider shall complete Form 470–2965, Medicaid Provider Agreement Agreement Between Provider of Medical and Health Services and Iowa Department of Human Services Regarding Participation in Medical Assistance Program.

[Filed 10/10/01, effective 1/1/02]

[Published 10/31/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 10/31/01.

Pursuant to the authority of Iowa Code section 234.6 and 2001 Iowa Acts, House File 732, section 31, subsection 6, and section 49, the Department of Human Services hereby amends Chapter 150, “Purchase of Service,” appearing in the Iowa Administrative Code.

These amendments were previously Adopted and Filed Emergency and published in the July 11, 2001, Iowa Administrative Bulletin as ARC 0791B and in the August 8, 2001, Iowa Administrative Bulletin as ARC 0844B. Notices of Intended Action to solicit comments on those submissions were published in the July 11, 2001, Iowa Administrative Bulletin as ARC 0790B and in the August 8, 2001, Iowa Administrative Bulletin as ARC 0843B, respectively.

The amendments noticed as ARC 0790B update fiscal year changes and freeze the rates for adoption, independent living, and family planning services purchased by the Department under a purchase of social services contract at the level in effect on June 30, 2001.

These amendments do not provide for a waiver to the rate freeze because the changes were mandated by the General Assembly. All adoption, independent living, and family planning service providers should be reimbursed on the same basis.

The amendments noticed as ARC 0843B continue a cost–of–living increase to the statewide average cost of shelter care which was inadvertently omitted when promulgating the rule to implement the provisions of 2001 Iowa Acts, House File 732, section 31, subsection 6. The General Assembly required the continuation of current rates for shelter care in 2001 Iowa Acts, Senate File 537, section 1, subsection 1, paragraph “d,” in accordance with the provisions of 2000 Iowa Acts, chapter 1221, section 1, subsection 1, paragraph “d.”

Providers will continue to receive the total increase provided for in fiscal year 2001 when combining the per diem paid by the state and the claim to the counties for the difference between the state payment and the statewide actual and allowable cost.

These amendments do not provide for a waiver because the change was mandated by the General Assembly. All shelter care providers should be reimbursed on the same basis.

The following revisions were made to the amendments noticed as ARC 0790B:

• Subrule 150.3(5), paragraph “p,” subparagraph (2), was revised to rescind numbered paragraph “4” and adopt a new numbered paragraph “4” to continue the cost–of–living increase to the statewide average cost of shelter care that was inadvertently omitted.

• Item 2 was revised to modify the implementation clause to include the language mandating continuance of the cost–of–living increase, 2001 Iowa Acts, Senate file 537, section 1, subsection 1, paragraph “d.”

The Council on Human Services adopted these amendments October 10, 2001.

These amendments are intended to implement Iowa Code section 234.6 and 2001 Iowa Acts, House File 732, section 31, subsection 6, and Senate File 537, section 1, subsection 1, paragraph “d.”

These amendments shall become effective January 1, 2002, at which time the Adopted and Filed Emergency amendments are hereby rescinded.

The following amendments are adopted.

ITEM 1. Amend subrule 150.3(5), paragraph “p,” subparagraph (2), as follows:

Amend the introductory paragraph and numbered paragraph “1,” introductory paragraph, as follows:

(2) For the fiscal year beginning July 1, 2000 2001, the maximum reimbursement rates for services provided under a purchase of social service agency contract (adoption; , shelter care; , family planning; , and independent living) shall be the same as the rates in effect on June 30, 2000 2001, except under any of the following circumstances:

1. If a new service was added after June 30, 2000 2001, the initial reimbursement rate for the service shall be based upon actual and allowable costs. A new service does not include a new building or location or other changes in method of service delivery for a service currently provided under the contract.

Amend numbered paragraph “3,” as follows:

3. For the fiscal year beginning July 1, 2000 2001, the combined service and maintenance reimbursement rate paid to a shelter care provider shall be based on the financial and statistical report submitted to the department. The maximum reimbursement rate shall be $83.69 per day. If the department reimburses the provider at less than the maximum rate, but the provider’s cost report justifies a rate of at least $83.69, the department shall readjust the provider’s reimbursement rate to the actual and allowable cost plus the inflation factor or $83.69, whichever is less.

Rescind numbered paragraph “4” and adopt the following new numbered paragraph “4”:

4. For the fiscal year beginning July 1, 2001, the purchase of service reimbursement rate for a shelter care provider’s actual and allowable cost plus inflation shall be increased by $3.99. For state fiscal year 2002 beginning July 1, 2001, the established statewide average actual and allowable cost shall be increased by $3.99.

ITEM 2. Amend the implementation clause following 441—Chapter 150, Division I, as follows:

These rules are intended to implement Iowa Code section 234.6 and 2001 Iowa Acts, House File 732, section 31, subsection 6,. and Senate File 537, section 1, subsection 1, paragraph “d.”