Pages 1152 to 1255 include ARC 0424B to ARC 0483B

Notice, Iowa farmers market/women infants
children program, 50.3 to 50.14 ARC 0464B 1152

Schedule for rule making 1144

Publication procedures 1145

Administrative rules on CD–ROM 1145

Agency identification numbers 1150

Opinions summarized 1256

Notice, Petitions for rule making, ch 4
ARC 0483B 1155

CITATION OF ADMINISTRATIVE RULES 1149

Notice, Accelerated career education grant
program, 19.1 ARC 0453B 1157

Filed, Uniform rules for waivers, ch 7
ARC 0454B 1220

Notice, Nitrous oxide inhalation analgesia—
equipment and use; CPR, 29.6 ARC 0456B 1157

Filed, Dental hygienists—administration of
nitrous oxide inhalation analgesia, 1.1,
10.3(1), 29.6 ARC 0457B 1220

Filed, Waivers, 7.4, 7.5, 15.5, 27.12, 30.4
ARC 0458B 1220

Filed, Special licenses, 13.1, 13.2 ARC 0459B 1221

Filed, Prescribing, administering and
dispensing drugs, 16.1 to 16.7 ARC 0460B 1221

Filed, Advertising, 26.1 ARC 0463B 1222

Filed, Oral and maxillofacial pathology;
accreditation, 28.1, 28.2(2), 28.3(2), 28.4,
28.5(2), 28.6(2), 28.7(2), 28.8(2), 28.9(2)
ARC 0462B 1222

Filed, Renewal dates for deep sedation/general
anesthesia and conscious sedation permits,
29.5(5), 29.10(2) ARC 0461B 1223

Notice, Emergency shelter grants program,
24.12(4) ARC 0466B 1158

Notice, Homeless shelter operation grants
program—transfer of funds, 29.11(4)
ARC 0467B 1158

Filed, New jobs and income program, 58.2,
58.4(3) ARC 0468B 1223

Filed, Enterprise zones, 59.2, 59.3, 59.6(3),
59.7(2) ARC 0469B 1224

Notice, Licenses and endorsements—
nonrefundable fees, 14.1, 14.32, 14.121
ARC 0479B 1159

Notice, Coaching authorization—
nonrefundable fees, 19.2, 19.5 ARC 0482B 1159

Notice, Behind–the–wheel driving instructor
authorization—nonrefundable fees, 21.2,
21.5 ARC 0481B 1160

Notice, Paraeducator certificate application—
nonrefundable fee, 22.5 ARC 0480B 1160

Filed, Waivers or variances from administrative
rules, ch 6 ARC 0478B 1224

Filed, Adding endorsements to licenses, 14.6
ARC 0476B 1224

Filed, Professional administrator’s license, 14.14
ARC 0477B 1225

Filed Emergency, Recency of units for renewal,
17.4 ARC 0474B 1215

Filed, Behind–the–wheel driving instructor
authorization, 21.1 to 21.6 ARC 0475B 1225

Filed, Local policy—health services, media
services programs and guidance programs,
12.3(11) ARC 0433B 1225

Filed, Iowa empowerment board, 1.2, 1.4 to 1.7,
1.10, 1.12, 1.13(2), 1.16, 1.19, 1.23, 1.25,
1.26(1), 1.28, 1.29, 1.31 ARC 0434B 1226

Filed Emergency After Notice, Licensure
by comity, 1.4 ARC 0437B 1215

Notice, Water quality standards, 61.2(2),
61.3 ARC 0470B 1161

Filed, Emissions, 22.1, 22.3, 22.4(1),
22.100, 22.106, 23.1, 23.3(2), 25.1(9)
ARC 0472B 1226

Filed, MTBE sampling, 135.19(3)
ARC 0471B 1230

Notice, State income tax credit for
rehabilitation, ch 48 ARC 0432B 1164

Filed Emergency, State income tax
credit for rehabilitation, ch 48 ARC 0431B 1216

Notice, Waiver rules, ch 7 ARC 0449B 1165

Notice, Medicaid—price–based case–mix
system, 78.1, 78.3, 78.6(1), 78.9(10), 78.10(4),
78.11, 78.19(1), 78.24, 78.28(9), 79.1, 81.1,
81.3(2), 81.6, 81.10, 81.20(1), 81.31
ARC 0441B 1167

Filed Emergency After Notice, HCBS physical
disability waivers, 83.102, 83.109(1)
ARC 0425B 1218

Filed, Rates for emergency foster care and
trainers in approved preservice training
programs, 156.11(2), 156.18(3) ARC 0426B 1231

Filed, Organization and operation, ch 1
ARC 0446B 1231

Filed, Fair information practices, ch 2
ARC 0448B 1231

Filed, Petitions for rule making, ch 3
ARC 0447B 1232

Filed, Agency procedure for rule making, ch 4
ARC 0442B 1232

Filed, Declaratory orders, ch 5 ARC 0443B 1233

Filed, Contested cases, ch 6 ARC 0445B 1233

Filed, Waivers, ch 7 ARC 0444B 1234

Notice, Birth centers, 52.3, 52.4(4), 52.5(1),
52.9, 52.10 ARC 0473B 1177

Notice, General industry safety and health,
10.20 ARC 0455B 1178

Notice, Standards of practice—surgery, 13.4
ARC 0465B 1179

Notice, Physician assistants, 325.1 to 325.7,
325.11(1) ARC 0450B 1179

Filed, Waivers or variances from administrative
rules, ch 18 ARC 0452B 1234

Filed, Physician assistants—continuing education,
325.4(1), 325.5, 325.19, ch 328 ARC 0451B 1234

Notice, Radiation, amendments to chs 38 to 42,
45, 46 ARC 0440B 1183

Filed, EMS—service program authorization,
132.1, 132.2 ARC 0439B 1235

Filed, Update of references—trauma care
facility categorization and verification; trauma,
triage and transfer protocols, 134.2, 135.2(1)
ARC 0438B 1235

Summarized list 1146

Notice, General, amendments to chs 4 to 7,
10 to 12 ARC 0428B 1190

Notice, Harness racing, ch 9 ARC 0427B 1195

Notice, Iowa scenic byway program, 132.1,
132.5 ARC 0424B 1213

Filed, Consent for sale of goods and services,
26.1, 26.4(2) ARC 0430B 1236

Filed, Special permits for operation and
movement of vehicles and loads of excess
size and weight, 511.1 to 511.16
ARC 0429B 1236

Notice 1214

Filed, Restoration of agricultural lands
during and after pipeline construction,
ch 9 ARC 0436B 1237

Filed, Foreign acquisitions, 32.2(4)
ARC 0435B 1254

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Pursuant to the authority of Iowa Code section 159.5(11), the Department of Agriculture and Land Stewardship gives Notice of Intended Action to amend Chapter 50, “Iowa Farmers Market/Women Infants Children Program,” Iowa Administrative Code.

These proposed amendments are intended to make clarifying and technical changes to the Women, Infants, and Children/Iowa Farmers Market Nutrition Program (WIC/IFMNP). These include clarifications to some of the definitions and other provisions of the program. In addition, there have been changes in identifying violations of the program and the standards and procedures used for suspending or disqualifying a participant in the program. The proposed amendments also provide for new language regarding the handling of discrimination complaints.

These amendments do not contain waiver provisions. The existing rules do not contain waiver provisions, and the Department believes that waivers are neither necessary nor desirable in this program.

Any interested person may make written suggestions or comments on the proposed amendments prior to 4:30 p.m. on February 27, 2001. Such written material should be directed to Margaret Long, Coordinator of the WIC/IFMNP, Department of Agriculture and Land Stewardship, Wallace State Office Building, Des Moines, Iowa 50319. Comments can also be submitted by fax to (515)242–5015 or by E–mail to Margaret.Long@idals.state.ia.us.

It is the intention of the Department that these rules be adopted emergency after the notice and comment period has passed. This is necessary in order for the Department to prepare and print the necessary forms, coupons, and other paperwork needed for distribution for the upcoming farmers market season for which the changes will be applicable.

These proposed amendments are intended to implement Iowa Code chapter 159.

The following amendments are proposed.

ITEM 1. Amend 21—Chapter 50, title, as follows:

CHAPTER 50
WOMEN, INFANTS, AND CHILDREN/IOWA FARMERS MARKET/WOMEN INFANTS CHILDREN NUTRITION PROGRAM

ITEM 2. Amend rule 21—50.3(159) as follows:

21—50.3(159) Program description and goals. The Iowa farmers market/women infants children program women, infants, and children/Iowa farmers market nutrition program is jointly funded by the state of Iowa and the United States Department of Agriculture—Food and Nutrition Service. The intent of the program is to supply locally grown fresh produce to recipients of the special supplemental food program through the distribution of vouchers that are redeemable only at designated farmers markets. The program is designed to provide both a supplemental source of fresh produce for the dietary needs of women, infants, and children who are judged to be at nutritional risk and to stimulate an increased demand for locally grown fresh produce at Iowa farmers markets.

ITEM 3. Amend the following definitions in rule 21— 50.4(159):

“Application” means a request made by an individual to the department for vendor certification in IFM/WIC WIC/IFMNP on a form provided by the agricultural diversification bureau of the department.

“Certified vendor” means an individual who has met all IFM/WIC WIC/IFMNP conditions as outlined by the department and who is guaranteed payment on all vouchers accepted, provided compliance is maintained by that individual regarding all IFM/WIC WIC/IFMNP rules and procedures as outlined in the vendor certification handbook.

“Certified vendor identification card” means adepartment–issued card that shall be presented by the certified vendor during each occurrence of voucher deposit in the financial institution of certified vendor choice. This card shall remain the sole property of the department with immediate forfeiture by the certified vendor to the department in the event of suspension disqualification.

“Certified vendor identification sign” means department–issued signage which shall be clearly displayed by the certified vendor at all times when accepting or intending to accept vouchers in an authorized farmers market. Signs shall remain the sole property of the department with immediate forfeiture by the certified vendor to the department in the event of suspension disqualification.

“Certified vendor number” means a personal a unique identification number issued for a given season designated period by the department and assigned to an individual whom the department has identified as a certified vendor. The certified vendor number shall be affixed to the certified vendor identification card and the certified vendor identification sign, and the certified vendor will enter the number on each voucher that is submitted for deposit. An individual shall be assigned no more than one certification number for any given season designated period.

“Certified vendor stall” means all of the area in an authorized farmers market that is dedicated to a certified vendor for the purpose of displaying and offering product for sale. The only exceptions permitted shall be:

1. If the certified vendor elects not to promote any of said area as IFM/WIC WIC/IFMNP for an entire farmers market day; or

2. If the certified vendor elects to exclude a portion of the space by maintaining a distance of separation from the certified vendor stall by a minimum of two farmers market vendors who are neither affiliated with nor related to the certified vendor and who are actively participating in the farmers market on the given day. An excluded area shall be operated independent of the certified vendor stall. Exceptions shall hold only if neither acceptance of nor intent to accept vouchers exists.

“Fresh produce” means fruits and vegetables that have not been processed in any manner. This term does not include such items as nuts, herbs, popcorn, vegetable plants/seedlings, dried beans/peas, seeds/grains, and flowers.

“IFM/WIC” “WIC/IFMNP” means the women, infants, and children/Iowa farmers market nutrition program, which is a supplemental food program for women, infants, and children as administered by the department.

“Posted hours and days” means the operational time frames stated in assurances submitted by a duly authorized representative of an authorized farmers market which include a beginning and an ending time and date for each year of operation.

“Recipient” means a client of WIC who is at least five six months of age, who possesses one of the WIC classification codes selected for inclusion by the department, and who is an active participant in a designated distribution clinic.

“Season” means a clearly delineated period of time during a given year that has a beginning date and ending date, asspecified by the department, which correlates with a major portion of the harvest period for locally grown fresh produce, and does not exceed four months in any given calendar year.

“Service area” means the geographic areas that encompass all of the designated distribution clinics and authorized farmers markets within Iowa for a given season designated period.

“Vendor certification handbook” means a publication by the department that is based on USDA–FNS mandates and guidelines, addresses all IFM/WIC WIC/IFMNP rules and procedures applicable to a certified vendor, and provides the basis for vendor training. A copy of the publication shall be issued to each individual prior to application after certification training. New editions supersede all previous editions.

ITEM 4. Amend subrule 50.5(2) as follows:

50.5(2) The department shall maintain all conditions as outlined in the farmers market nutrition agreement entered into with state plan submitted to USDA–FNS, as amended.

ITEM 5. Amend rule 21—50.6(159) as follows:

50.6(1) No change.

50.6(2) Local agencies shall distribute vouchers at designated distribution clinics to recipients in the manner specified by the department in the program and procedures guide for distribution clinic staff. Local agency services shall include, but not be limited to, ensuring:

a. No change.

b. Each recipient is issued five $2 vouchers during each distribution as authorized by the department, with no one recipient receiving a benefit value greater than $20 during a season.

c. No change.

d. Each voucher issued and the The distribution registry and voucher folder are properly signed by the recipient in the presence of local agency staff at the time of distribution.

e. A proxy is not allowed to act on behalf of a recipient, except in the case of a parent or legal guardian acting in behalf of a recipient child or infant, or in the case of a husband acting in behalf of his wife if the parent/guardian has extenuating circumstances which do not permit the recipient to pick up the vouchers.

f. No change.

g. All IFM/WIC WIC/IFMNP support materials are put into use as outlined by the department.

h. Accurate and complete records of all related IFM/WIC WIC/IFMNP activities in the possession of a local agency will be maintained and retained for a minimum of four three years following the date of submission of the final expenditure reports for the period to which the report pertains. In the event of litigation, negotiation, or audit findings, the records shall be retained until all issues arising from such actions have been resolved or until the end of the regular four–year prescribed retention period, whichever is later.

i. No change.

ITEM 6. Amend rule 21—50.7(159), numbered paragraphs “2” and “3,” as follows:

2. Properly countersigning and dating signing voucher(s) at time of use in the presence of the certified vendor who is accepting each in exchange for fresh produce.

3. Using vouchers only to purchase locally grown fresh produce from certified vendors who display IFM/WIC WIC/IFMNP signs at authorized farmers markets.

ITEM 7. Amend rule 21—50.8(159) as follows:

50.8(1) A farmers market shall be eligible for authorization provided such farmers market possesses a consistently good consistent track record of satisfactory operation known as evaluated by the department which shall be based in part upon the submission of assurances by a duly authorized representative of the farmers market. Farmers market assurances shall be submitted in a manner outlined by the department and shall provide evidence as to whether a farmers market possesses the capability to service the additional demands brought about by distribution of vouchers in the area without causing undue harm to the existing farmers market consumer base and indications of willingness by persons associated with the farmers market to meet all IFM/WIC WIC/IFMNP requirements. Information submitted by a farmers market shall include but not be limited to:

a. to d. No change.

50.8(2) The department shall give priority to a farmers market with previous involvement in IFM/WIC WIC/IFMNP, provided the farmers market possesses a good consistent track record for maintaining conditions outlined in its farmers market assurances, and does not have a high incidence of certified vendor noncompliance, or suspensions, and a voucher usage rate no less than 5 percent below the usage rate in the USDA–FNS agreement, as amended. or disqualifications.

50.8(3) A principal factor in determining farmers market authorization shall pertain to the number of eligible applications received by the department prior to the first of March fifteenth of April that indicate the intent to participate in the given farmers market. The standard for the authorization of a single or principal farmers market in a county shall be one eligible application for every 100 recipients who participate in the distribution clinic(s) in said county. A minimum standard of five eligible applications is required for a farmers market to receive authorization.

50.8(4) The number of farmers markets authorized for the season shall be determined by the department no later than the first day of March May prior to each season.

ITEM 8. Amend rule 21—50.9(159) as follows:

50.9(1) No change.

50.9(2) Vendor certification expires at the end of each year of issuance. Individuals must annually apply and receive vendor certification in order to participate in IFM/WIC WIC/IFMNP.

50.9(3) The department does not limit the number of vendors who may become certified under IFM/WIC WIC/IFMNP. A vendor certified to accept program vouchers may accept vouchers at any authorized market in the state upon approval by the department to participate in that particular market and acceptance by the particular market. A vendor who satisfies all the following criteria shall be certified to accept vouchers.

a. Agrees to maintain begin the market day with at least 20 percent of all products on display in a certified vendor stall as locally grown fresh produce.

b. Indicates an intent to participate in one or more authorized farmers markets.

c. Demonstrates participation in training on IFM/WIC WIC/IFMNP rules and procedures, either through attendance in an entire session of one of the scheduled training meetings conducted by department staff or successfully responding to 90 percent of the questions on a test pertaining to certified vendor obligations as required by the department.

e d. Submits a completed application to the department prior to the deadline.

f e. Submits completed and signed certified vendor agreements to the department.

ITEM 9. Amend rule 21—50.10(159), numbered paragraphs “3,” “5,” “10,” and “13,” as follows:

3. Provide locally grown fresh produce to recipients upon receipt of a valid and properly completed voucher, which is dated and countersigned with a matching signature signed at the time of sale.

5. Handle transactions with recipients in the same manner as transactions with all other customers, ensuring WIC/IFMNP clients are not exposed to discriminatory practices in any form.

10. Participate in training as the department deems necessary to carry out the intent of IFM/WIC WIC/IFMNP.

13. Comply with all procedures and rules as herein outlined and as delineated in the department–vendor agreement, the certified vendor handbook, and official written notices of clarification issued by the department to the vendor.

ITEM 10. Amend rule 21—50.11(159) as follows:

50.11(1) A voucher shall be returned to the certified vendor unpaid if the certified vendor identification number is not properly affixed to the face of the voucher, if the certified vendor does not endorse the voucher, or if either the recipient signature or the countersignature is missing on the face of the voucher, or if the two signatures do not match. A voucher may be resubmitted for payment in the event that the signature or vendor certification identification error can be properly and legally corrected by the certified vendor.

50.11(2) Violations of IFM/WIC WIC/IFMNP procedures and rules applicable to a certified vendor shall be identified as Class I violations, Class II violations, and Class III violations.

Violations involving the use of multiple vouchers in a single sales transaction shall be considered as a single violation. Violations involving multiple sales transactions, regardless of time elapsed, shall be considered multiple violations at a standard of one violation per sales transaction.

a. Class I violations shall result in a warning letter written citation of noncompliance from the department to the violating certified vendor. The following shall constitute Class I violations:

(2) (1) Failure to appropriately display the certified vendor identification sign.

b. Class II violations shall result in an official a written citation of noncompliance from the department to the violating certified vendor. The following shall constitute Class II violations:

(1) Noncompliance with rules and procedures as outlined in the vendor certification handbook and in the department–vendor agreement, and which is not specifically identified as a Class I or Class III violation.

(3) (2) Refusal to accept valid vouchers for locally grown fresh produce.

(4) (3) Failure to permit or comply with procedures regarding inspection of evidence by the department when point of origin of fresh produce on display or offered for sale in a certified vendor stall is in question.

(5) (4) Abusive or discriminatory treatment of recipients or IFM/WIC WIC/IFMNP staff.

(6) (5) Failure to display and offer minimum required volumes of locally grown fresh produce while participating as a certified vendor.

(7) (6) Displaying or offering for sale non–locally grown fresh produce in a certified vendor stall.

(10) (7) Exchanging ineligible products or cash (other than non–locally grown fresh produce) for vouchers.

(11) (8) The second like instance of a Class I violation by a single certified vendor Accepting WIC/IFMNP checks at locations, times, or on dates other than those scheduled for authorized markets.

c. Class III violations shall result in the suspension of the a written citation of noncompliance and if substantiated or accepted a suspension and potential disqualification of the violating vendor from participation in IFM/WIC WIC/IFMNP. The following shall constitute Class III violations:

(1) The third like instance of a Class I violation by a single vendor; Accepting WIC/IFMNP vouchers for non–locally grown fresh produce.

(2) The second like instance of a Class II violation by a single vendor. Accepting WIC/IFMNP vouchers for cash.

50.11(3) Official notice Notice of noncompliance. A written official notice of noncompliance shall be issued to the certified vendor by the department within 72 hours of receipt of evidence involving an act of noncompliance. A written notice of noncompliance from the department shall be pending for 72 hours following receipt of the notice of noncompliance by the certified vendor. The certified vendor shall be granted the pending period for presenting sufficient evidence to the department to substantiate a reversal. Remedies undertaken in response to receipt of a written notice of a pending citation of noncompliance shall not constitute evidence in defense of such citation. Failure to present any evidence (oral or written) to the department within the specified period shall constitute acceptance of the citation of noncompliance by the certified vendor. Submission of insufficient evidence by the certified vendor for determination of reversal on the pending citation by the department shall result in a citation of noncompliance upon completion of the pending period.

50.11(4) Suspension. Suspension of a certified vendor from participation in IFM/WIC WIC/IFMNP shall remain in effect for the remainder of the season. An exception shall occur when suspension occurs within 30 days of the expiration date for voucher usage by recipients. In such case, suspension shall also include the entire season of the following calendar year. a maximum of 15 days and will be utilized to ensure the certified vendor has adequate time to appeal an official Class III violation notice. If the incident leading to a suspension status is substantiated, the certified vendor will be automatically disqualified at the conclusion of the suspension period. If the incident leading to the suspension is not substantiated, the suspension will be immediately lifted. During the suspension period, the cited vendor will refrain from participating in WIC/IFMNP.

50.11(5) Disqualification. Disqualification shall follow a suspension period if the Class III violation is substantiated. The disqualified vendor is required to return the vendor identification sign(s) and card to the department within 15 days of receipt of the disqualification notice. A certified vendor that has been disqualified at any point in the season will be disqualified from participation for the remainder of that season and the following season. In the event of a disqualification, the department shall have the right to reimbursement from the vendor of an amount equal in value to vouchers deposited after the official date of disqualification notification.

50.11(5) (6) Probationary status. Any vendor successfully recertified following a suspension disqualification will be on probationary status for one full WIC/IFMNP season.

Recurrence of a substantiated Class II or Class III violation during the probationary period and for which the certified vendor has been cited shall be sufficient grounds for immediate and automatic suspension disqualification.

ITEM 11. Rescind rule 21—50.12(159) and adopt the following new rule in lieu thereof:

21—50.12(159) Appeal. A certified vendor wishing to appeal a decision made by the department which resulted in a suspension or disqualification may make a written request for administrative appeal to the department’s WIC/IFMNP director. This appeal must be made within 15 days of receipt of decision notification by the certified vendor. The provisions of 21—Chapter 2 shall be applicable to an appeal except as otherwise provided in this chapter.

ITEM 12. Amend rule 21—50.13(159) as follows:

50.13(1) Submission of farmers market assurances. Assurances, on forms provided by the department, must be submitted no later than the last first day of February May in order for the farmers market to receive consideration of authorization for the upcoming season.

50.13(2) and 50.13(3) No change.

50.13(4) Certified vendor voucher reimbursement. All vouchers accepted by a certified vendor shall be deposited on or before 14 15 days following the date of expiration for voucher usage by recipients. Such date shall be clearly printed in the endorsement space on the back of the voucher. Any claim to voucher payment beyond the voucher reimbursement expiration date is not valid and shall be denied.

50.13(5) No change.

50.13(6) Operations report plans and reports to USDA–FNS. The department shall develop and submit a completed operations report in January plans and reports in a manner prescribed by USDA–FNS which summarizes the IFM/WIC operations for the previous year.

ITEM 13. Amend 21—Chapter 50 by adopting the following new rule:

21—50.14(159) Discrimination complaints. Women, infants, and children/Iowa farmers market nutrition program (WIC/IFMNP) is open to all eligible persons. Persons seeking to file discrimination complaints based on race, national origin, age, sex, or handicap may write to USDA, Director, Office of Civil Rights, Room 326–W, Whitten Building, 1400 Independence Avenue SW, Washington, D.C. 20250–9410.

Pursuant to the authority of Iowa Code sections 13.2 and 17A.7, the Attorney General hereby gives Notice of Intended Action to adopt Chapter 3, “Petitions for Rule Making,” Iowa Administrative Code.

The proposed new chapter broadens the availability of petitions for rule making in the Attorney General’s Office. Iowa Code chapter 17A requires state agencies to promulgate rules governing petitions for rule making. The Attorney General has had rules for petitioning for rule making under the Iowa Consumer Credit Code in the Consumer Protection Division, but has not had comparable rules available to petition for rule making in other divisions of the office. This is because the Attorney General usually functions as legal counsel and not as an “agency” in other divisions of the office. The Attorney General has decided to broaden the availability of this procedure to expand opportunities for public input in those areas in which the office does function similarly to state agencies. In order to balance expansion of the availability of this procedure with the need to preserve the ability of the Attorney General to provide legal counsel to the state without subjecting legal advice to judicial review, proposed rule 3.1(17A) explains the scope of the procedure and proposed rule 3.4(17A) explains the grounds on which a petition may be denied.

Public comments concerning the proposed new chapter will be accepted until 4:30 p.m. on February 27, 2001. Interested persons may submit written or oral comments by contacting Julie F. Pottorff, Deputy Attorney General, Hoover State Office Building, Second Floor, Des Moines, Iowa 50309; telephone (515)281–3349.

These rules are intended to implement Iowa Code sections 13.2 and 17A.7.

The following new chapter is proposed.

CHAPTER 3
PETITIONS FOR RULE MAKING

61—3.1(17A) Scope. The attorney general’s office serves primarily as legal counsel for the state of Iowa and in that capacity is not required to promulgate rules providing for petitions for rule making under the Iowa administrative procedure Act. At the same time, the attorney general’s office does perform some limited functions which are similar to the functions of state agencies. This chapter provides a mechanism for the public to petition for rule making in those matters in which the attorney general’s office functions similarly to state agencies. Under rule 3.4(17A), the attorney general preserves the right to deny any petition for rule making when the petition addresses matters in which the attorney general acts as legal counsel for the state of Iowa. Through these rules the attorney general intends to provide the public with a useful means to communicate on rule–making issues, but does not intend to subject decisions made in the capacity of legal counsel to judicial review.

61—3.2(17A) Availability. Any person or agency may file a petition for rule making with the Attorney General’s Office, Hoover State Office Building, Des Moines, Iowa 50319. A petition is deemed filed when it is received by that office.The attorney general must provide the petitioner with a file–stamped copy of the petition if the petitioner provides the agency an extra copy for this purpose. This procedure, as limited by rule 3.1(17A), is applicable to all rules of the attorney general’s office, except those rules of the Iowa consumer credit code administrator, which are governed by 61—Chapter 11.

3.3(1) The petition must be typewritten or legibly handwritten in ink and must contain:

a. A caption in the following form:

b. The following information:

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

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

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

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

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

3.3(2) Form. The petition must be dated and signed by the petitioner or the petitioner’s representative. It must also include the name, mailing address, and telephone number of the petitioner and petitioner’s representative, and a statement indicating the person to whom communications concerning the petition should be directed.

61—3.4(17A) Grounds for denial. The attorney general may deny a petition because it does not substantially conform to the required form, or does not disclose sufficient reasons to justify commencement of a rule–making proceeding, or pertains to a matter in which the attorney general acts as legal counsel for the state of Iowa and not as an agency, or for other good cause.

61—3.5(17A) Briefs. The petitioner may attach a brief to the petition in support of the action urged in the petition. The attorney general may request a brief from the petitioner or from any other person concerning the substance of the petition.

61—3.6(17A) Inquiries. Inquiries concerning the status of a petition for rule making may be made to Attorney General Thomas J. Miller, Hoover State Office Building, Des Moines, Iowa 50319.

61—3.7(17A) Disposition. Within 60 days after the filing of the petition, or within any longer period agreed to by the petitioner, the attorney general will, in writing, deny the petition and notify petitioner of action and the specific grounds for the denial, or grant the petition and notify petitioner that rule–making proceedings have been instituted on the subject of the petition. Petitioner shall be deemed notified of the denial or grant of the petition on the date the agency mails or delivers the required notification to petitioner.

These rules are intended to implement Iowa Code sections 13.2 and 17A.7.

Pursuant to the authority of Iowa Code sections 261.3, 261.22 and 261.37(5), the College Student Aid Commission proposes to amend Chapter 19, “Accelerated Career Education Grant Program,” Iowa Administrative Code.

The proposed changes more clearly define training that will be targeted for funding under the rule.

Interested persons may submit comments orally or in writing to the Executive Director, College Student Aid Commission, 200 Tenth Street, Fourth Floor, Des Moines, Iowa 50309; telephone (515)242–3344, by 4:30 p.m. on February 27, 2001.

These amendments are intended to implement Iowa Code section 261.22.

The following amendments are proposed.

ITEM 1. Amend 283—19.1(261), introductory paragraph, as follows:

283—19.1(261) ACE grants. Educational grants based on financial need may be awarded to Iowa residents enrolled in accelerated career education (ACE) programs, approved by filed with the Iowa department of economic development, at Iowa community colleges and serving targeted industries as designated by the Iowa department of economic development.

ITEM 2. Amend paragraph 19.1(2)“b” as follows:

b. A recipient must be enrolled in an accelerated career education program, approved by filed with the Iowa department of economic development, leading to a certificate, diploma, associate of science degree, or associate of applied science degree in accordance with the provisions of Iowa Code chapter 260G and serving targeted industries as designated by the Iowa department of economic development.

ITEM 3. Amend subrule 19.1(3) as follows:

19.1(3) Priority for grants. Industries Targeted industries and occupations with high levels of shortages of workers based on the level of statewide need for skills and occupations will be identified by the Iowa department of economic development and the workforce development department. The commission will award grants based on the level of need for the identified skills and occupations for which technical workers are in the highest demand targeted industries and occupations as defined by the Iowa department of economic development and the workforce development department.

Applicants who apply by the priority date specified in the application and who are enrolled in designated educational programs will be ranked in order of need, and awards will be granted to those who demonstrate need from highest need to lowest need, insofar as funds permit.

Pursuant to the authority of Iowa Code section 147.76, the Board of Dental Examiners hereby gives Notice of Intended Action to amend Chapter 29, “Deep Sedation/General Anesthesia, Conscious Sedation and Nitrous Oxide Inhalation Analgesia,” Iowa Administrative Code.

Item 1 of the amendments clarifies what is involved in routine maintenance of nitrous oxide equipment. Item 2 of the amendments clarifies that a dentist who utilizes nitrous oxide inhalation analgesia must be trained and capable of administering basic life support, as demonstrated by current certification in cardiopulmonary resuscitation. Item 2 also eliminates the requirement that a dentist who utilizes nitrous oxide inhalation analgesia must have auxiliary personnel trained in basic life support. Dental hygienists are already required to have current cardiopulmonary resuscitation (CPR) in order to receive and renew a license. In addition, dental assistants will also be required to have current CPR by the year 2003.

These amendments are not subject to waiver or variance as the rules establish minimum standards that must be followed in order to protect public health, safety, and welfare.

Any interested person may make written comments or suggestions on the proposed amendments on or before February 27, 2001. Such written comments should be directed to Jennifer Hart, Executive Officer, Board of Dental Examiners, 400 SW 8th Street, Suite D, Des Moines, Iowa 50309–4687. E–mail may also be sent to jhart@ bon.state.ia.us.

Also, there will be a public hearing on February 27, 2001, from 3 to 4 p.m. in the Conference Room, 400 SW 8th Street, Suite D, Des Moines, Iowa. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of the amendments. Any person who plans to attend the public hearing and who may have special requirements, such as hearing or mobility impairments, should contact the Board and advise of specific needs.

These amendments were approved at the January 18, 2001, regular meeting of the Board of Dental Examiners.

These amendments are intended to implement Iowa Code chapters 17A, 147 and 153.

The following amendments are proposed.

ITEM 1. Amend subrule 29.6(1), paragraph “d,” as follows:

d. Performs Has routine inspection, calibration, and maintenance on equipment performed every two years and maintains documentation of such maintenance, and provides such documentation to the board upon request.

ITEM 2. Amend subrule 29.6(2) as follows:

29.6(2) A dentist utilizing nitrous oxide inhalation analgesia and auxiliary personnel shall be trained and capable of administering basic life support, as demonstrated by current certification in a nationally recognized course in cardiopulmonary resuscitation.

Pursuant to the authority of Iowa Code sections 15.104 and 15.106, the Iowa Department of Economic Development hereby gives Notice of Intended Action to amend Chapter 24, “Emergency Shelter Grants Program,” Iowa Administrative Code.

The proposed amendment removes the sentence which allows the transfer of funds between line items in the budget up to 20 percent of the total grant amount. This change is necessary to comply with the recently adopted U.S. Department of Housing and Urban Development record–keeping and financial monitoring standards.

Public comments concerning the proposed amendment will be accepted until 4:30 p.m. on February 27, 2001. Interested persons may submit written or oral comments by contacting Roselyn McKie Wazny, Division of Community and Rural Development, Iowa Department of Economic Development, 200 East Grand Avenue, Des Moines, Iowa 50309; telephone (515)242–4822.

A public hearing to receive comments about the proposed amendment will be held on February 27, 2001, at 1:30 p.m.at the above address in the Northwest Conference Room on the second floor. Individuals interested in providing comments at the hearing should contact Roselyn McKie Wazny by 4 p.m. on February 26, 2001, to be placed on the hearing agenda.

This amendment is intended to implement Iowa Code section 15.108(1)“a” and PL 100–628.

The following amendment is proposed.

Amend subrule 24.12(4) as follows:

24.12(4) Amendments to contracts. Contracts will be amended on an individual basis in emergency situations. Any request to amend a contract must be submitted in writing by the chief elected official to IDED. IDED will determine if the request to amend is justified based on the material presented in the letter of request. No amendment will be valid until approved in writing by IDED. The IDED allows the transfer of funds between line items in the budget up to 20 percent of the total grant amount without a formal request for amendment.

Pursuant to the authority of Iowa Code sections 15.104 and 15.106, the Iowa Department of Economic Development hereby gives Notice of Intended Action to amend Chapter 29, “Homeless Shelter Operation Grants Program,” Iowa Administrative Code.

The proposed amendment removes the sentence that permits the transfer of funds between line items in the budget up to 20 percent of the total grant amount.

Public comments concerning the proposed amendment will be accepted until 4:30 p.m. on February 27, 2001. Interested persons may submit written or oral comments by contacting Roselyn McKie Wazny, Division of Community and Rural Development, Iowa Department of Economic Development, 200 East Grand Avenue, Des Moines, Iowa 50309; telephone (515)242-4822.

A public hearing to receive comments about the proposed amendment will be held on February 27, 2001, at 2 p.m. at the above address in the Northwest Conference Room on the second floor. Individuals interested in providing comments at the hearing should contact Roselyn McKie Wazny by4 p.m. on February 26, 2001, to be placed on the hearing agenda.

This amendment is intended to implement Iowa Code section 15.108(11).

The following amendment is proposed.

Amend subrule 29.11(4) as follows:

29.11(4) Amendments to contracts. Contracts will be amended on an individual basis in emergency situations. Any request to amend a contract must be submitted in writing to IDED by the chief elected official. IDED will determine if the request to amend is justified based on the material presented in the letter of request. No amendment will be valid until approved in writing by IDED. IDED allows the transfer of funds between line items in the budget up to 20 percent of the total grant amount without a request for amendment.

Pursuant to the authority of Iowa Code section 272.2, the Board of Educational Examiners hereby gives Notice of Intended Action to amend Chapter 14, “Issuance of Practitioner’s Licenses and Endorsements,” Iowa Administrative Code.

The proposed amendments clarify that the fees for the evaluation of the fingerprint packet mandated for licensure and the fee for the evaluation of the DCI background check are nonrefundable. These fees are for a service provided for each initial application for licensure. The application fees for various licenses and authorizations are also established as nonrefundable. The licensure staff processes each application whether the individual receives a license or not. If an applicant does not qualify for the license, the staff has taken time to evaluate the application. The nonrefundable fees pay for these evaluations.

There will be a public hearing on the proposed amendments at 1 p.m. on March 8, 2001, in Conference Room 3 South, Grimes State Office Building, East 14th and Grand Avenue, Des Moines, Iowa. Persons may present their views at the public hearing 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. Persons who wish to make oral presentations at the public hearing may contact the Executive Director, Board of Educational Examiners, Grimes State Office Building, East 14th and Grand Avenue, Des Moines, Iowa 50319–0147, or at (515)281–5849, prior to the date of the public hearing. Fax communication may be sent to (515) 281–7669.

Any interested person may make written comments or suggestions on the proposed amendments through 4:30 p.m. on March 9, 2001. Written comments and suggestions should be addressed to Dr. Anne E. Kruse, Executive Director, Board of Educational Examiners, at the above address.

These amendments are intended to implement Iowa Code chapter 272.

The following amendments are proposed.

ITEM 1. Amend subrule 14.1(1) as follows:

14.1(1) Effective October 1, 2000, an initial applicant will be required to submit a completed fingerprint packet that accompanies the application to facilitate a national criminal history background check. The nonrefundable fee for the evaluation of the fingerprint packet will be assessed to the applicant.

ITEM 2. Amend subrule 14.1(2) as follows:

14.1(2) Effective October 1, 2000, an Iowa division of criminal investigation background check will be conducted on initial applicants. The nonrefundable fee for the evaluation of the DCI background check will be assessed to the applicant.

ITEM 3. Amend rule 282—14.32(272), introductory paragraph, as follows:

282—14.32(272) Licensure and authorization application fee. All application fees and authorization fees are nonrefundable.

ITEM 4. Amend rule 282—14.121(272), introductory paragraph, as follows:

282—14.121(272) Licensure and authorization application fee. All application and authorization fees are nonrefundable.

Pursuant to the authority of Iowa Code section 272.2, the Board of Educational Examiners hereby gives Notice of Intended Action to amend Chapter 19, “Coaching Authorization,” Iowa Administrative Code.

The proposed amendments clarify that the fees for initial and renewed coaching authorization are nonrefundable. These fees are for a service provided for each initial application and renewal of the coaching authorization. The licensure staff processes each application whether the individual receives an authorization or not. Even if an applicant does not qualify for the authorization, the staff has taken time to evaluate the application. The nonrefundable fees pay for these evaluations.

There will be a public hearing on the proposed amendments at 1 p.m. on March 8, 2001, in Conference Room 3 South, Grimes State Office Building, East 14th and Grand Avenue, Des Moines, Iowa. Persons may present their views at the public hearing 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. Persons who wish to make oral presentations at the public hearing may contact the Executive Director, Board of Educational Examiners, Grimes State Office Building, East 14th and Grand Avenue, Des Moines, Iowa 50319–0147, or at (515)281–5849, prior to the date of the public hearing. Fax communication may be sent to (515) 281–7669.

Any interested person may make written comments or suggestions on the proposed amendments through 4:30 p.m. on March 9, 2001. Written comments and suggestions should be addressed to Dr. Anne E. Kruse, Executive Director, Board of Educational Examiners, at the above address.

These amendments are intended to implement Iowa Code chapter 272.

The following amendments are proposed.

ITEM 1. Amend rule 282—19.2(272) as follows:

282—19.2(272) Validity. All fees are nonrefundable. The coaching authorization shall be valid for five years, and it shall expire five years from the date of issuance. The fee for the issuance of the coaching authorization shall be $50.

ITEM 2. Amend rule 282—19.5(272) as follows:

282—19.5(272) Renewal. All fee are nonrefundable. The authorization may be renewed upon application, $50 renewal fee, and verification of successful completion of five planned renewal activities/courses related to athletic coaching approved in accordance with guidelines approved by the board of educational examiners. Beginning on or after July 1, 2000, each applicant for the renewal of a coaching authorization shall have completed one renewal activity/course relating to the knowledge and understanding of professional ethics and legal responsibilities of coaches. A one–year extension of the holder’s coaching authorization will be issued if all requirements for the renewal of the coaching authorization have not been met. This extension is not renewable. The cost of the one–year extension shall be $10.

Pursuant to the authority of Iowa Code section 272.2, the Board of Educational Examiners hereby gives Notice of Intended Action to amend Chapter 21, “Behind–the–Wheel Driving Instructor Authorization,” Iowa Administrative Code.

The proposed amendments clarify that the fees for initial and renewed authorization are nonrefundable. These fees are for a service provided for each initial application and renewal of the authorization. The licensure staff processes each application whether the individual receives an authorization or not. If an applicant does not qualify for the authorization, the staff has taken time to evaluate the application. The nonrefundable fees would pay for these evaluations.

There will be a public hearing on the proposed amendments at 1 p.m. on March 8, 2001, in Conference Room 3 South, Grimes State Office Building, East 14th and Grand Avenue, Des Moines, Iowa. Persons may present their views at the public hearing 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. Persons who wish to make oral presentation at the public hearing may contact the Executive Director, Board of Educational Examiners, Grimes State Office Building, East 14th and Grand Avenue, Des Moines, Iowa 50319–0147, or at (515)281–5849, prior to the date of the public hearing. Fax communication may be sent to (515) 281–7669.

Any interested person may make written comments or suggestions on the proposed amendments through 4:30 p.m. on March 9, 2001. Written comments and suggestions should be addressed to Dr. Anne E. Kruse, Executive Director, Board of Educational Examiners, at the above address.

These amendments are intended to implement Iowa Code chapter 272.

The following amendments are proposed.

ITEM 1. Amend rule 282—21.2(272,321) as follows:

282—21.2(272,321) Validity. All fees are nonrefundable. The behind–the–wheel driving instructor authorization shall be valid for one calendar year, and it shall expire one year after issue date. The fee for the issuance of the behind–the–wheel driving instructor authorization shall be $10.

ITEM 2. Amend rule 282—21.5(272,321) as follows:

282—21.5(272,321) Renewal. All fees are nonrefundable. The behind–the–wheel driving instructor authorization may be renewed upon application, $10 renewal fee and verification of successful completion of:

21.5(1) Providing behind–the–wheel instruction for a minimum of 12 clock hours during the previous school year; and

21.5(2) Successful participation in at least one department of transportation–sponsored or department of transportation–approved behind–the–wheel instructor refresher course.

Pursuant to the authority of Iowa Code section 272.2, the Board of Educational Examiners hereby gives Notice of Intended Action to amend Chapter 22, “Paraeducator Certificates,” Iowa Administrative Code.

The proposed amendment clarifies that the paraeducator certification application fee is nonrefundable. The licensure staff processes each application whether the individual receives a certificate or not. If an applicant does not qualify for the certificate, the staff has taken time to evaluate the application. The nonrefundable fees would pay for these evaluations.

There will be a public hearing on the proposed amendment at 1 p.m. on March 8, 2001, in Conference Room 3 South, Grimes State Office Building, East 14th and Grand Avenue, Des Moines, Iowa. Persons may present their views at the public hearing 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. Persons who wish to make oral presentation at the public hearing may contact the Executive Director, Board of Educational Examiners, Grimes State Office Building, East 14th and Grand Avenue, Des Moines, Iowa 50319–0147, or at (515)281–5849, prior to the date of the public hearing. Fax communication may be sent to (515)281–7669.

Any interested person may make written comments or suggestions on the proposed amendment through 4:30 p.m. on March 9, 2001. Written comments and suggestions should be addressed to Dr. Anne E. Kruse, Executive Director, Board of Educational Examiners, at the above address.

This amendment is intended to implement Iowa Code chapter 272.

The following amendment is proposed.

Amend rule 282—22.5(272) as follows:

22.5(1) and 22.5(2) No change.

Pursuant to the authority of Iowa Code sections 455B.105 and 455B.173, the Environmental Protection Commission hereby gives Notice of Intended Action to amend Chapter 61, “Water Quality Standards,” Iowa Administrative Code.

The proposed amendments address U.S. Environmental Protection Agency disapproval of various changes made to the water quality standards from July 1992 through January 1999 and are proposed to avoid federal (EPA) promulgation of water quality standards for Iowa.

A recent case (known as the Alaska case) resulted in a federal court ruling that, until such time as the EPA approves state–adopted water quality standards (WQS), the WQS are not effective for the purpose of carrying out the federal Clean Water Act. The ruling prompted the EPA to adopt new rules reflecting the court decision and to launch a nationwide effort to catch up on the backlog of state WQS submittals.

The Region VII EPA review of all post–1992 WQS changes adopted by the Commission resulted in the approval of most of the adopted standards but disapproval of some items. The disapproved items generally fall into the following broad categories: removal or “downgrades” of designated uses for water bodies without proper documentation; numeric water quality criteria not included or improperly calculated; and a provision of the antidegradation policy dealing with drainage ditches. Many of the disapproved items have already been addressed in previous rule making; this action is to address the remaining issues.

The amendments now being proposed will, if adopted, effect the following changes:

1. Class A (Primary Contact Recreation) use designations will be reestablished for eight water bodies or water body segments. Six stream segments and one lake that were designated as Class A water bodies in the pre–1990 WQS are currently not designated as Class A waters. The EPA feels these need to be designated as Class A waters unless a use attainability analysis is done to show they cannot be used for primary contact recreation. In addition, the Class A use was removed from one stream segment (Big Creek near Mt. Pleasant) by the Commission without the proper documentation (i.e., use attainability analysis).

2. A Class C (Drinking Water Supply) use designation will be reestablished for Mystic Reservoir (Appanoose County). Even though this lake is no longer being used for water supply, the use cannot be removed without a use attainability analysis (UAA) and it is doubtful EPA would approve such a use removal even if a UAA were completed.

3. Numerical criteria will be established for endosulfan, bromoform, chlorodibromomethane, chloroform, and di–chlorobromomethane. The existing WQS either do not have numeric values for these compounds or the EPA feels the established values are inconsistent with EPA guidance.

4. A provision in the antidegradation policy that exempts the repair and maintenance of a drainage district ditch from the policy will be removed. The EPA disapproved this provision (adopted by the Commission in October 1993) because the EPA feels it is inconsistent with the requirement that WQS, including antidegradation provisions, apply to all waters of the state.

Any person may submit written suggestions or comments on the proposed rule changes through March 19, 2001. Such written material should be submitted to Ralph Turkle, Iowa Department of Natural Resources, Wallace State Office Building, 900 East Grand, Des Moines, Iowa 50319–0034, by fax (515)281–8895 or by E–mail to ralph.turkle@dnr. state.ia.us. Persons who have questions may contact Ralph Turkle at (515)281–7025.

Persons are invited to present oral or written comments at public hearings which will be held:

February 28, 2001, 10 a.m. in the Cherokee Community Center, 530 W. Bluff St., Cherokee;

February 28, 2001, 7 p.m. in the Clear Lake Community Meeting Room, 15 N. Sixth St., Clear Lake;

March 5, 2001, 1 p.m. in the Municipal Utilities Conference Room, 15 W. Third St., Atlantic;

March 6, 2001, 10:30 a.m. in the Iowa City Public Library, Meeting Room A, 123 S. Linn St., Iowa City;

March 6, 2001, 7 p.m. in the Decorah City Hall Meeting Room, 400 Claiborne Drive, Decorah; and

March 8, 2001, 1 p.m. in the Wallace State Office Building, 5th Floor East Conference Room, 900 East Grand Avenue, Des Moines.

These amendments may have an impact upon small businesses.

Additional information on Iowa’s water quality standards can be found on the Department’s Web site at http://www. state.ia.us/epd/prgrmdsc/wtrqual/sum.html. Copies of Environmental Protection Commission rules may be obtained from Cecilia Nelson, Records Center, Iowa Department of Natural Resources, Wallace State Office Building, 900 East Grand, Des Moines, Iowa 50319–0034.

These amendments are intended to implement Iowa Code chapter 455B, division III, part 1.

The following amendments are proposed.

ITEM 1. Amend subrule 61.2(2), paragraph “h,” as follows:

h. This policy shall be applied in conjunction with water quality certification review pursuant to Section 401 of the Act. In the event that activities are specifically exempted from flood plain development permits or any other permits issued by this department in 567—Chapters 70, 71, and 72, the activity will be considered consistent with this policy. Other activities not otherwise exempted will be subject to 567—Chapters 70, 71, and 72 and this policy. The repair and maintenance of a drainage district ditch as defined in 567— 70.2(455B,481A) will not be considered a violation of the antidegradation policy for the purpose of implementing Title IV of these rules. United States Army Corps of Engineers (Corps) nationwide permits 3, 4, 5, 6, 7, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 27, 29, 30, 31, 32, 33, 34, 36, 37, 38, 39, 40, 41, 42, 43, and 44 as promulgated March 9, 2000, are certified pursuant to Section 401 of the Clean Water Act. Regional permit numbers 2, 7, 12, and 20 of the Rock Island District of the Corps are also certified. No specific Corps permit or 401 certification is required for activities covered by these permits unless required by the nationwide permit or the Corps, and the activities are allowed subject to the terms of the nationwide and regional permits.

ITEM 2. Amend subrule 61.3(3), Table 1, “Criteria For Chemical Constituents,” by amending the introductory paragraph, adding new entries for the following compounds and associated criteria in the proper alphabetical sequence, modifying the entry for “endosulfan,” and amending the footnotes as follows:

Table 1: Criteria For Chemical Constituents

(all values as micrograms per liter unless noted otherwise)

Human health criteria for carcinogenic parameters noted below were based on the prevention of an incremental cancer risk of 1 in 100,000. For parameters not having a noted human health criterion, the U.S. Environmental Protection Agency has not developed final national human health guideline values. For noncarcinogenic parameters the recommended EPA criterion was selected. For Class C waters, the EPA criteria for fish and water consumption were selected using the same considerations for carcinogenic and noncarcinogenic parameters as noted above. For Class C waters where no EPA human health criteria were available, the EPA MCL value was selected.

* units expressed as milligrams/liter

** to include the sum of known and suspected carcinogenic PAHs

† expressed as nanograms/liter

+ represents the noncarcinogenic human health parameters

++ The concentrations of 4,4–DDT or its metabolites; 4,4–DDE and 4,4–DDD, individually shall not exceed the human health criteria.

(a) units expressed as million fibers/liter (longer than 10 micrometers)

(c) total trihalomethanes includes the sum of bromodichloromethane, dibromochloromethane, tribromomethane (bromoform), and trichloromethane (chloroform)

(d) Class B numerical criteria for pentachlorophenol is a function of pH using the equation: Criterion (∝g/l)=e ^{[1.005(pH) – x]}, where e = 2.71828 and x varies according to the following table.

ITEM 3. Amend paragraph 61.3(5)“e” as follows:

Amend streams or stream segments by location and reference number as follows:

Amend the table of lakes by amending entries 9a and 254 as follows:

Pursuant to the authority of Iowa Code section 303.1A, the Historical Division of the Department of Cultural Affairs proposes to adopt Chapter 48, “State Income Tax Credit for Rehabilitation,” Iowa Administration Code.

The proposed rules set forth a statement of purpose, define terminology, project eligibility, application procedures, review standards, and review fee for the state rehabilitation tax credit program.

Any interested person or group may make written suggestions or comments on these proposed rules on or before February 27, 2001. Written comments should be directed to Director, Planning and Partnership Development, Department of Cultural Affairs, 600 E. Locust, Des Moines, Iowa 50319.

There will be a public hearing on February 27, 2001, at10 a.m. in the Tone Board Room, State Historical Building, 600 E. Locust, Des Moines, Iowa 50319. Persons may pre–sent their views at this hearing either orally or in writing.

These rules were also Adopted and Filed Emergency and are published herein as ARC 0431B. The content of that submission is incorporated by reference.

These rules are intended to implement Iowa Code chapters 303 and 404A.

Pursuant to the authority of Iowa Code section 17A.3, the Department of Human Rights hereby gives Notice of Intended Action to adopt Chapter 7, “Waiver Rules,” Iowa Administrative Code.

The Governor, through Executive Order Number 11 issued on September 14, 1999, requires each agency with the authority to adopt rules, as defined in Iowa Code section 17A.2, subsections 1 and 10, to initiate rule–making proceedings to adopt the uniform waiver rule that is outlined in Executive Order Number 11, which is published in its entirety in the October 6, 1999, Iowa Administrative Bulletin. Adoption of this new chapter will provide the agency with waiver rules.

Any interested person may make written suggestions or comments on these proposed rules on or before February 27, 2001. Such written materials should be directed to Director, Department of Human Rights, Lucas State Office Building, Second Floor, Des Moines, Iowa 50319; fax (515)242–6119.

Persons are also invited to present oral or written suggestions or comments at a public hearing which will be held on February 27, 2001, at 10 a.m. in the Director’s Office, Department of Human Rights, Lucas State Office Building, Des Moines, Iowa 50319. At the hearing, persons will be asked to confine their remarks to the subject of the rules.

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

These rules are intended to implement Executive Order Number 11 and Iowa Code section 17A.9A.

The following new chapter is proposed.

CHAPTER 7
WAIVER RULES

421—7.1(17A) Definition. The term “waiver” as used in this chapter means a prescribed waiver or variance from a specific rule or set of rules of this department applicable only to an identified person on the basis of the particular circumstances of that person.

421—7.2(17A) Scope of chapter. This chapter creates generally applicable standards and a generally applicable process for granting individual waivers from rules adopted by the department in situations when no other more specifically applicable law provides for waivers. To the extent another more specific provision of law purports to govern the issuance of a waiver from a particular rule, the more specific waiver provision shall supersede this chapter with respect to any waiver from that rule.

421—7.3(17A) Applicability of chapter. This chapter applies only to waivers of those departmental rules that are within the exclusive rule–making authority of the department. This chapter shall not apply to rules that merely define the meaning of a statute, or other provisions of law or precedent, if the department does not possess statutory authority to bind a court, to any extent, with its definition.

421—7.4(17A) Compliance with standing law. Thedepartment may not issue a waiver under this chapter unless (1) the legislature has delegated authority sufficient to justify the action; and (2) the waiver is consistent with statute and other provisions of law. No waiver may be granted under this chapter from any mandatory requirement imposed by statute.

421—7.5(17A) Criteria for a waiver. The department may issue an order, in response to a completed petition or on its own motion, granting a waiver from a rule adopted by the department, in whole or in part, as applied to the circumstances of a specified person, if the department finds that the waiver is consistent with rules 7.3(17A) and 7.4(17A) of this chapter, that the waiver would not prejudice the substantial legal rights of any person, and either that:

1. The application of the rule to the person at issue does not advance, to any extent, any of the purposes for the rule or set of rules; or

2. The following criteria have been met:

• The application of the rule or set of rules to the person at issue would result in an undue hardship or injustice to that person; and

• The waiver on the basis of the particular circumstances relative to the specified person would be consistent with the overall public interest.

In determining whether a waiver would be consistent with the public interest, the department shall consider whether, if a waiver is granted, the public health, safety, and welfare will be adequately protected by other means that will ensure a result that is substantially equivalent to full compliance with the rule.

421—7.6(17A) Department discretion. The final decision to grant or deny a waiver shall be vested in the department director. This decision shall be made at the discretion of the department upon consideration of relevant facts.

421—7.7(17A) Burden of persuasion. The burden of persuasion shall be on the petitioner to demonstrate by clear and convincing evidence that the department should exercise its discretion to grant a waiver based upon the criteria contained in rule 7.5(17A) of this chapter.

421—7.8(17A) Contents of petition. A petition for a waiver shall include the following information where applicable and known to the requester:

1. The name, address, and telephone number of the person or entity for whom a waiver is requested, and the case number of any related contested case.

2. A description and citation of the specific rule or set of rules from which a waiver is requested.

3. The specific waiver requested, including a description of the precise scope and operative period for which the petitioner wants the waiver to extend.

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

5. A history of any prior contacts between the petitioner and the department relating to the activity affected by the proposed waiver, including any notices of violation, contested case hearings, or investigative reports relating to the activity within the past five years.

6. Any information known to the requester relating to the department’s treatment of similar cases.

7. The name, address, and telephone number of any public agency or political subdivision which also regulates the activity in question, or which might be affected by the grant of a waiver.

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

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

10. Signed releases of information authorizing persons with knowledge of the waiver request to furnish the department with information relevant to the waiver.

421—7.9(17A) Additional information. Prior to issuing an order granting or denying a waiver, the department may request additional information from the petitioner relative to the petition and surrounding circumstances. If the petition was not filed in a contested case, the department may, on its own motion or at the petitioner’s request, schedule a telephonic or in–person meeting between the petitioner and a representative from the department to discuss the petition and surrounding circumstances.

421—7.10(17A) Notice. The department shall acknowledge the petition upon receipt. The department shall ensure that notice of the pendency of the petition and a concise summary of its contents have been provided to all persons to whom notice is required by any provision of law within 30 days of the receipt of the petition. In addition, the department may give notice to other persons. To accomplish this notice provision, the department may require the petitioner to serve the notice on all persons to whom notice is required by any provision of law, and provide a written statement to the department attesting to the fact that notice has been provided.

421—7.11(17A) Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings shall apply to any petition for a waiver of a rule or set of rules filed within a contested case, and shall otherwise apply to department proceedings for a waiver only when the department so provides by rule or order or is required to do so by statute or other binding law.

421—7.12(17A) Ruling. An order granting or denying a waiver shall be in writing and shall contain a reference to the particular person and rule or portion thereof to which the order pertains, a statement of the relevant facts and reasons upon which the action is based, and a description of the precise scope and operative time period of a waiver if one is issued.

421—7.13(17A) Conditions. The department may condition the grant of the waiver on such conditions that the department deems to be reasonable and appropriate in order to achieve the objectives of the particular rule in question through alternative means.

421—7.14(17A) Time for ruling. The department shall grant or deny a petition for a waiver as soon as practicable but, in any event, shall do so within 120 days of its receipt, unless the petitioner agrees to a later date. However, if a petition is filed in a contested case, then the department may grant or deny the petition at the time the final decision in that contested case is issued.

421—7.15(17A) When deemed denied. Failure of the department to grant or deny a petition within the required time period shall be deemed a denial of that petition by the department. However, the department shall remain responsible for issuing an order denying a waiver as required by rule 7.12(17A).

421—7.16(17A) Service of orders. Within seven days of its issuance, any order issued under this chapter shall be transmitted to the petitioner or the person to whom the order pertains and to any other person entitled to such notice by any provision of the law.

421—7.17(17A) Record keeping of orders. Subject to the provisions of Iowa Code section 17A.3(1)“e,” the department shall maintain a record of all orders granting and denying waivers under this chapter. All final rulings in response to requests for waivers shall be indexed and copies distributed to members of the administrative rules review committee upon request. All final rulings shall also be available for inspection by the public at the department office during regular business hours.

421—7.18(17A) Cancellation of a waiver. A waiver issued by the department pursuant to this chapter may be withdrawn, canceled, or modified if, after appropriate notice and hearing, the department issues an order finding any of the following:

1. The person who was the subject of the waiver order withheld from the department, or knowingly misrepresented to the department, material facts relevant to the propriety or desirability of the waiver; or

2. The alternative means of ensuring that the public health, safety, and welfare will be adequately protected after issuance of the waiver order have been demonstrated to be insufficient, and no other means exists to protect the substantial legal rights of any person; or

3. The subject of the waiver order has failed to comply with all of the conditions contained in the order.

421—7.19(17A) Violations. A violation of a condition in a waiver order shall be treated as a violation of the particular rule for which the waiver was granted. As a result, the recipient of a waiver under this chapter who violates a condition of the waiver may be subject to the same remedies or penalties as a person who violates the rule at issue.

421—7.20(17A) Defense. After the department issues an order granting a waiver, the order shall constitute a defense, within the terms and the specific facts indicated therein, for the person to whom the order pertains in any proceeding in which the rule in question is sought to be invoked.

421—7.21(17A) Appeals. Appeals within the department from a decision granting or denying a waiver shall be in accordance with Iowa Code chapter 17A and department rules. These appeals shall be taken within 30 days of the issuance of the ruling granting or denying the waiver request, unless a different time is provided by rule or statute.

These rules are intended to implement Iowa Code section 17A.9A and Executive Order Number 11.

Pursuant to the authority of Iowa Code section 249A.4, the Department of Human Services proposes to amend Chapter 78, “Amount, Duration and Scope of Medical and Remedial Services,” Chapter 79, “Other Policies Relating to Providers of Medical and Remedial Care,” Chapter 80, “Procedure and Method of Payment,” and Chapter 81, “Nursing Facilities,” appearing in the Iowa Administrative Code.

These amendments propose a price–based case–mix system for reimbursing non–state–owned nursing facilities for Medicaid recipients based on a uniform standard statewide price. The case–mix system reflects the relative acuity or need for care of the Medicaid recipients in the nursing facility. Nursing facilities will submit cost reports to the Department on an annual, rather than semiannual, basis. The Department will make case–mix adjustments to the nursing facilities’ rates on a quarterly basis.

As mandated by the General Assembly, the Department began to phase in a case–mix system of reimbursement to nursing facilities on July 1, 2000. The purpose of the phase–in was to reduce the impact that a facility may experience from changing from the former system of reimbursement to the new system. During this first year, providers continued to receive, without reduction, 100 percent of their former system rate. Additionally, if a nursing facility had above average case mix, an additional payment was provided.

Over the next two years the price–based case–mix rates will continue to be gradually phased in, allowing nursing facilities additional time to adapt to the new reimbursement system. Beginning July 1, 2001, a portion of each facility’s total Medicaid rate will be based on a percent of the current system rate plus a percent of the price–based case–mix rate. The following table illustrates how the phase–in rates are calculated:

The current system rate to be used effective July 1, 2001, will be the nursing facility’s Medicaid rate effective on June 30, 2001, plus a 3 percent inflation factor. The current system rate to be used effective July 1, 2002, will be the nursing facility’s Medicaid rate effective on June 30, 2001, plus a 6 percent inflation factor.

Standard price. Medicaid payment for services provided to eligible nursing facility recipients will be based on a uniform statewide standard price. The standard price will be determined using actual costs taken from the cost reports submitted by the nursing facilities. These costs will be subject to several expense exclusions and limitations that exist within current policy (e.g., exclusion of advertising expenses and limits on owners and management compensation) as well as adjustments for inflation, utilization incentive, and normalization, as discussed below.

For each nursing facility, average per diem allowable costs will be calculated, arrayed from lowest to highest and weighted based on each facility’s total patient days. The per diem cost of the nursing facility that falls at the median of all patient days multiplied by a percentage becomes the basis for the standard price (i.e., the “weighted median”).

For purposes of determining the standard price applicable to Medicare–certified hospital–based facilities, a separate peer group of Medicare–certified hospital–based facilities will be used to calculate the standard statewide price.

The Medicaid rate paid to a nursing facility will be calculated using this standard price and will be adjusted, either up or down, to reflect the case mix of the Medicaid residents in the facility. If a nursing facility has a case mix greater than the industry average (indicating a higher than average patient need for care), the facility’s Medicaid rate will be increased. Conversely, a nursing facility with a lower than average case mix will have the standard price reduced.

A wage adjustment for nursing facilities located in Metropolitan Statistical Areas will also be applied to nursing salaries and benefits to account for wage differentials.

Medicaid rates will be updated annually with a new standard price, and quarterly thereafter, for changes in the case mix of the Medicaid residents in each facility. Current funding proposals by the Governor will result in a percentage of 100 percent of the median with an additional 3 percent of the price for accountability performance measures and 10 percent for a wage factor. This methodology provides cost coverage in the nursing facility aggregate at a rate of 98 percent of Medicaid costs, in comparison to the reimbursement system prior to case mix, in which 92 percent of Medicaid costs were covered. These rates will be adequate to allow for quality care and enlist sufficient providers to meet the need of Iowa Medicaid residents for nursing care.

Case mix. Case mix measures the relative resources required to care for a given population of nursing facility residents. Within and between nursing facilities, resident needs may vary widely, from residents requiring near full–time skilled nursing assistance to residents requiring only minimal assistance.

The Resource Utilization Groups, Version III (RUG–III) classification system will be used to classify residents and objectively determine a facility’s case mix. RUG–III was developed by the Health Care Financing Administration (HCFA) and is the basis for resident classification for the Medicare prospective payment system and numerous other states’ Medicaid systems. There are two basic RUG–III options for classification. Iowa will be using the 34–group version that collapses the special rehabilitation category into four groups. HCFA recommends this version for use with Medicaid nursing facility resident populations when, as with the Iowa system, only nursing salaries are case–mix adjusted.

HCFA has also developed standard case–mix indices based on time studies performed during the middle to late 1990s, and these indices will be the basis for calculating the average case–mix index, or score, for each nursing facility under Iowa’s new case–mix system. The Department will calculate a facility’s average case–mix index four times per year for residents in the facility on the last day of each calendar quarter. A separate calculation will be made to determine the average case–mix index for all residents and Medicaid residents only. The case–mix index for Medicaid residents will be used to adjust Medicaid rates beginning with the second calendar quarter following the quarter of assessment.

Inflation factor. The new payment system will use historical costs as a basis for determining the standard price, which will be increased to recognize an estimate of future cost inflation to develop a prospective standard price that is applied to each nursing facility. Historical costs will be adjusted for inflation using the HCFA/SNF index published by Data Resources Incorporated (DRI). The HCFA/SNF index measures and predicts price level changes occurring in Medicare skilled nursing facilities and is the best available predictor of nursing facility cost inflation.

Utilization incentive. As an ongoing incentive to encourage providers to use resources prudently, a utilization standard (or occupancy factor) of 80 percent of licensed bed capacity has been applied to all costs. In applying a utilization standard, per patient day cost is calculated using the greater of actual patient days or a percentage of licensed bed capacity. On July 1, 2000, this 80 percent factor was modified to apply only to non–direct patient care costs. A utilization standard of 85 percent of licensed bed capacity will be phased in over the first two years of the new reimbursement system. Beginning July 1, 2001, the standard for determining the price is 80 percent; and beginning July 1, 2002, and thereafter, the standard is 85 percent of licensed bed capacity. The utilization standard does not apply to hospital–based nursing facilities because Medicaid utilization is nominal.

Normalization. Cost normalization refers to the process of removing cost variations associated with different levels of resident case mix. Prior to determining the standard price, each provider’s average nursing costs will be recalculated so that, to the extent possible, cost variations that are caused by different levels of case mix are removed from the cost comparison. Cost normalization is accomplished simply by dividing a facility’s average allowable nursing costs by the facility’s average case–mix index score for use in determining the standard price.

Accountability measures. A portion of the Medicaid rates under the new case–mix system will be based on each facility’s achieving certain accountability measures that will link payment to quality of care. Rules governing the framework for these measures as well as the specific criteria that will be applied have yet to be developed. A subgroup of the task force that developed these amendments has been convened to begin developing the measures. The Department envisions these measures will include standard surveys and complaint investigations from the Department of Inspections and Appeals, direct patient care expenses, customer satisfaction, employee retention rates, cognitive loss and dementia care, hospitalization rates, pressure ulcer prevention, proportion of expenses relative to direct patient care versus administrative expenses, provision of outpatient services offered, accreditation status, and other objective measures of quality and accountability. Payments for achieving these measures would be made following the performance of the accountability measures by the nursing facility during each prior year. The measures developed will be evaluated for effectiveness.

The following is a hypothetical example of the steps used to calculate a facility’s Medicaid payment rate:

Step 1. Costs Used to Determine Statewide Standard Price

This step is performed for each Medicaid–certified nursing facility. The total per patient day cost for each facility from Step 1 is arrayed from low to high to determine the state–wide median. The standard price is then determined at a percentage of the statewide median. The percentage of the statewide median will depend upon funding appropriated by the General Assembly.

The standard price is then adjusted by the facility’s Med–icaid average case–mix index to determine the facility–specific price. As shown above, the standard price was established using each facility’s total allowable cost with only a portion of the cost case mix adjusted. In determining the facility–specific price, only a portion of the standard price should be adjusted by the facility’s Medicaid average case–mix index. The following step illustrates how the facility–specific price is determined based on the apportioning of the standard price between the case–mix–adjusted component of the price and the non–case–mix–adjusted component of the price.

Step 2. Facility–Specific Price

In developing these amendments, the current nursing facility reimbursement system was thoroughly reviewed and evaluated. This included a review of Iowa administrative rules, State Medicaid Plan documents, cost reports and instructions, and rate setting compilations and worksheets. In addition, several meetings were conducted with the Case– Mix Reimbursement Task Force in order to obtain input from the nursing facility industry, consumer advocates and others about the current reimbursement system. Written comments were received from some of the task force representatives, which included useful perspectives on the strengths and weaknesses of the current system for consideration by the Department.

Members of the task force included representatives from the Department of Human Services, the Medicaid case–mix consultant (Myers and Stauffer LC), the Iowa Hospital Association, the Advocacy Network for Aging Iowans, the Iowa Long–Term Care Ombudsman of the Department of Elder Affairs, the Iowa Legislative Fiscal Bureau, partisan and nonpartisan legislative staff, the American Association of Retired Persons, the Iowa Council of Health Care Centers, the Iowa Health Care Association, the Iowa Association of Homes and Services for the Aging, Iowans for Nursing Home Reform, the Department of Inspections and Appeals, the Medicaid fiscal consultant (Ryun Givens, Wenthe & Co.), the Medicaid fiscal agent (Consultec, Inc.), the Iowa Foundation for Medical Care, and the Department of Public Health.

The following summarizes the major findings from review of the current Medicaid payment system:

• System Incentives. A review of the current system shows a clear bias toward institutional settings for long–term care services, which is not congruent with the objectives of Iowa’s Senior Living Program which was mandated by the General Assembly in 2000 Iowa Acts, chapter 1004, and seeks to improve access to care, increase consumer choice, contain costs, balance institutional and noninstitutional alternatives for long–term care, and improve the quality of lives of Iowans.

• No Recognition of Case–Mix Differences. Facility direct care resource needs are influenced heavily by level of resident acuity and dependence. The current reimbursement system does not explicitly recognize variations in the level of acuity of nursing facility residents.

• Limited Linkage to Quality of Care. The current system has no direct linkage between the quality of care delivered by the nursing facility and the level of Medicaid funding.

• Cost Containment Incentives. In order to achieve the objectives and goals of the Senior Living Program, cost containment for all health care services is essential. Inefficient use of taxpayer resources in any program will result in fewer dollars available to expand noninstitutional long–term care alternatives. State expenditures for nursing facility services have increased more than 37 percent since 1996, which far exceeds the 10 percent increases experienced by other health care providers (i.e., hospitals, skilled nursing facilities and home health agencies) for the same period. This rate of growth in Medicaid expenditures comes at a time when occupancy in nursing facilities for the same period declined by over 6 percent. These patterns strongly suggest that cost containment for the Medicaid nursing facility reimbursement system must be addressed.

• Inflation. The current system contains an overall reimbursement limitation established at the 70th percentile of rates. This feature is a relatively weak cost containment incentive for providers, since every provider with costs below the 70th percentile limit is reimbursed by Medicaid for the costs incurred, plus an adjustment for inflation. Providers that exceed the 70th percentile limit are capped at that level and do not receive an inflation adjustment. This methodology is inherently inflationary since the majority of providers have little incentive to contain their costs.

• Low Occupancy. Occupancy levels in Iowa nursing facilities have declined significantly over the last several years and currently average approximately 85 percent. This level indicates that Iowa nursing facilities have approximately 5,000 empty beds. When a facility’s occupancy declines, Medicaid reimbursement tends to increase to cover the fixed costs of empty beds. Historically, the Iowa nursing facility reimbursement system has applied a cost factor when defining allowable costs that Medicaid would reimburse. Under this methodology, facilities with actual occupancy less than 80 percent would have their Medicaid rate established using a minimum of 80 percent occupancy and thereby reduce the cost to the state of less efficient nursing facilities. This provision encourages providers to maintain their occupancy level at 80 percent but no higher.

Based on the review of the current nursing facility reimbursement system, it is clear that there are inherent problems, discussed above, that need to be addressed by developing a new system in order for Iowa to move toward achieving the policy goals that have been enumerated by the General Assembly. In order to function in harmony with the Senior Living Program, the new nursing facility reimbursement system should reduce financial incentives for facilities to care for low–need, independent residents, and increase the financial incentives to care for high–need, dependent residents. The new system should link payment to quality of care and be cost–effective. Without these changes, it will be difficult, if not impossible, for the state to achieve the goals of the Senior Living Program.

The Department and the Case–Mix Reimbursement Task Force evaluated several different case–mix reimbursement system options, including cost–based and price–based systems. Based on extensive evaluation of all options, the Department has determined that a price–based system will introduce new and desirable incentives into Iowa’s long–term care marketplace. These incentives are necessary to recognize the changes in the long–term care marketplace, including the significant decline in demand for nursing facility services by Iowans. In order to achieve the goals of the Senior Living Program over a reasonable period of time, the Department is proposing a price–based case–mix system.

The alternative, a cost–based system, would link Medicaid reimbursement to actual costs incurred by facilities, while a price–based system establishes a standard price based on costs for a given level of nursing facility service. That is, each facility’s Medicaid reimbursement in a price–based system is independent of actual costs incurred. The standard price is adjusted based on each facility’s individual case–mix level, so that facilities that need higher resources to care for more acute and dependent residents will receive higher reimbursement.

The following summarizes the characteristics of a price–based system and presents a rationale for its adoption by the Department:

• Strong Cost Containment Incentives and Less Inflationary System. Under a price–based system, the incentive for cost containment is greater than under a cost–based system. That is, facilities are encouraged to control costs to a great extent since any costs incurred above the price will not result in higher Medicaid reimbursement. In order to remain viable under a price–based system, nursing facilities must minimize their nursing costs in relation to their resident case mix, and they must also control their non–nursing costs in relation to the statewide median costs. Profits are made by facilities with costs below the established price, while losses are experienced by facilities whose costs are greater than the established price.

The standard price will be rebased, or updated using more current costs, beginning with implementation on July 1, 2001, again on July 1, 2002, and every third year thereafter. This rebasing schedule strikes a reasonable balance between recognizing current costs in the price, while creating a structure that should achieve the nursing facility cost containment objectives which are a necessary component of success for the Senior Living Program.

• Long–Term Care Market–Driven Changes and Other Funding Options. The Department has observed that some nursing facilities incur costs that are out of line with the acuity level of residents they serve. These facilities have high nursing costs coupled with low resident acuity. Under the price–based system, these facilities will be encouraged to modify their cost structures or resident mix during the final two–year phase–in period, and make efficiency–motivated operational changes that will lead to lower costs and higher case–mix and payment levels. Facilities will likely need to adapt their service mix to the changing marketplace.

The Department recognizes that some facilities will be better prepared than others to make these market–driven changes. Facilities that are not able to effectively adapt to these marketplace changes will be able to take advantage of other funding options such as the nursing facility conversion program. This program includes $20 million in state funding and represents the state’s commitment to facilitate, in the least disruptive manner possible, changes in long–term care delivery that are considered beneficial to Iowa’s elderly population.

The price–based system is expected to move the state toward achieving the objectives outlined by the Iowa General Assembly regarding a greater emphasis to be placed on alternatives to institutional long–term care services, cost containment, and access to appropriate consumer–driven long–term care services. It might not be possible to achieve these objectives using a cost–based reimbursement system, since there would be little incentive for facilities to adapt to marketplace changes if the Department continued to reimburse most facilities their full costs.

• Uniform Payments for the Same Level of Service. Under a price–based system, payment inequities that are typical in a cost–based system for similar levels of service are greatly reduced. It has been noted that management of some facilities is less prudent and efficient than others, which results in these facilities’ incurring higher costs for similar levels of service. Under a cost–based system, those facilities typically receive substantially higher Medicaid reimbursement than other facilities, while not providing more services or better quality of care. Under the price–based system, these sorts of payment inequities will be removed, and additional reimbursement will be available to facilities that demonstrate a commitment to quality of care as determined by achieving specified accountability measures.

Providers with rates far in excess of their costs will be able to increase salaries and benefits and other services that can lead to improved quality of care. However, these providers may choose not to spend their excess resources prudently. Careful monitoring by the state will be necessary to ensure that program objectives are met by rate increases being spent on improving the quality of care.

• The Price–Based System and Quality of Care. As the Department moves forward with changing the Medicaid nursing facility reimbursement system to better reflect the marketplace, it is very important for the state to monitor and evaluate the quality of care that is delivered in Iowa facilities. The Department fully appreciates the important role that the reimbursement system plays in ensuring high quality. It is important to note that a significant reimbursement feature of the new system provides for additional payments to facilities that achieve the quality–based accountability measures. Unlike a cost–based system that merely reimburses for costs incurred and offers little assurance of quality, the new price–based reimbursement system will reward facilities for actually delivering quality care.

However, despite having vastly improved incentives to ensure high quality services, as stated previously, the Department recognizes that some facilities may not be able to achieve the necessary operational objectives that the price–based reimbursement system requires. The Department will, therefore, work closely with the Iowa Department of Inspections and Appeals (DIA) to monitor quality of care issues that are identified through the survey process. In the event undesirable quality of care trends are detected, the Department intends to work with DIA and other state agencies and contractors to assess the underlying cause. This will involve new processes of resident, financial, survey, and consumer data analysis and coordination. The Department intends to work toward improving systems to locate alternative placements (e.g., home– and community–based services, assisted living, and other nursing facilities) if the quality of care provided in a nursing facility deteriorates to undesirable levels and improvements are not expected, or if a facility withdraws from the Medicaid program.

• Budget Forecasting. Since the standard price is the same for all facilities, budget forecasting by the state and nursing facilities can be done much more accurately since there are fewer unknown variables under a price–based methodology. Both facilities and the state agencies can benefit from this feature of the price–based system.

• Responsiveness to Changes in Inputs and Price Levels. It is administratively easier to incorporate into the standard price the financial effects of unanticipated facility operational changes, if or when it is deemed to be appropriate to do so. Examples of such operational changes would include higher staffing standards, or large increases in minimum wage levels.

The development and design of the case–mix system of reimbursement has been carried out openly and with input from industry association representatives, consumer advocates, legislative representatives and numerous other interested parties. Data representing all aspects of the process has also been freely available to all parties, including cost and financial information, case–mix data, and budget appropriation statistics. An interactive computer model was developed that allowed users to readily perform numerous “what if” scenarios and evaluate the financial impact. This model was also shared with all interested Task Force participants. The wealth of available information to all parties was helpful in keeping the focus of the Task Force on the key elements of the design of the case–mix system. It was also essential for the purpose of educating the Task Force on many complex reimbursement concepts and methods.

Even with the sharing of data and the openness with which concerns and ideas for the new system were shared, and agreement on many key aspects, it is not realistic to expect that one system can meet everyone’s needs. Nonetheless, the Department believes that the new case–mix system is in most respects supported by the majority of nursing facilities. Task Force members were encouraged to submit their positions on any remaining concerns with the new system.

The Department must seek a reasonable balance between providing adequate resources to Iowa nursing facilities to enable them to meet the needs of elderly Iowans entrusted to their care, the Department’s fiduciary responsibilities to prudently manage the state’s limited Medicaid budget resources, and lastly, to ensure that the intent of the General Assembly is accomplished through the development of sound public policies and programs. The Department strongly believes that the price–based case–mix system reimbursement provides this balance.

As with any new reimbursement system, it will be critical to the Department’s future success to closely monitor trends and other aspects, and it is likely that refinements will be necessary in the future. The Department feels strongly that the system presented in these amendments is an essential step forward toward meeting the goals outlined by the General Assembly.

These amendments do not provide for waivers to the Medicaid nursing facility reimbursement system as these amendments attempt to establish a standard price based on costs for a given level of nursing facility service.

Consideration will be given to all written data, views, and arguments thereto received by the Office of Policy Analysis, Department of Human Services, Hoover State Office Building, Des Moines, Iowa 50319–0114, on or before February 28, 2001.

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

Cedar Rapids – March 1, 2001 10 a.m.

Cedar Rapids Regional Office

Iowa Building – Seventh Floor Conference Room

411 Third St. S.E.

Cedar Rapids, Iowa 52401

Council Bluffs – February 28, 2001 10 a.m.

CPI Conference Room

Council Bluffs Regional Office

417 E. Kanesville Boulevard

Council Bluffs, Iowa 51501

Davenport – March 1, 2001 10 a.m.

Davenport Area Office

Bicentennial Building – Fifth Floor

Large Conference Room

428 Western

Davenport, Iowa 52801

Des Moines – February 28, 2001 10 a.m.

Des Moines Regional Office

City View Plaza

Conference Room 102

1200 University

Des Moines, Iowa 50314

Mason City – March 2, 2001 11 a.m.

Mason City Area Office

Mohawk Square, Liberty Room

22 North Georgia Avenue

Mason City, Iowa 50401

Ottumwa – March 2, 2001 10 a.m.

Ottumwa Area Office

Conference Room 3

120 East Main

Ottumwa, Iowa 52501

Sioux City – March 1, 2001 1:30 p.m.

Sioux City Regional Office

Fifth Floor

520 Nebraska St.

Sioux City, Iowa 51101

Waterloo – February 28, 2001 10 a.m.

Waterloo Regional Office

Pinecrest Office Building

Conference Room 420

1407 Independence Avenue

Waterloo, Iowa 50703

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

These amendments are intended to implement Iowa Code sections 249A.2(6), 249A.3(2)“a,” 249A.4, and 249A.16.

The following amendments are proposed.

ITEM 1. Amend subrule 78.1(2), paragraph “b,” as follows:

b. Medical and sickroom supplies are payable when ordered by a legally qualified practitioner for a specific rather than incidental use. No payment will be approved for medical and sickroom supplies for a recipient receiving care in a Medicare–certified skilled nursing facility. When a recipient is receiving care in a nursing facility or residential care facility which is not a Medicare–certified skilled nursing facility, payment will be approved only for the following supplies when prescribed by a legally qualified practitioner:

(1) to (7) No change.

ITEM 2. Amend subrules 78.3(13), 78.3(14), and 78.3(16) as follows:

78.3(13) Payment for patients in acute hospital beds who are determined by IFMC to require the skilled nursing care level of care shall be made at the average rate of all facilities participating in the skilled nursing program standard price for hospital–based Medicare–certified skilled nursing facilities with the rate price being adjusted January July 1 each year. This rate is effective (a) as of the date of notice by IFMC that the lower level of care is required or (b) for the days IFMC determines in an outlier review that the lower level of care was required.

78.3(14) Payment for patients in acute hospital beds who are determined by IFMC to require nursing facility level of care shall be made at the statewide average standard price for Medicaid nursing facility rate facilities with the rate being adjusted January July 1 each year. This rate is effective (a) as of the date of notice by IFMC that the lower level of care is required or (b) for the days IFMC determines in an outlier review that the lower level of care was required.

78.3(16) Payment will be made for medically necessary skilled nursing care when provided by a hospital participating in the swing bed program certified by the department of inspections and appeals and approved by the U.S. Department of Health and Human Services. Payment shall be at the average rate per patient day paid during the previous calendar year for routine skilled nursing services furnished by Iowa facilities participating in the Medicaid skilled payment program standard price for hospital–based Medicare–certified skilled nursing facilities with the rate being adjusted July 1 each year.

ITEM 3. Amend subrule 78.6(1), paragraphs “a” and “b,” as follows:

a. Eye examinations. The coverage of eye examinations depends on the purpose of the examination. Services are covered if the exam is the result of a complaint or symptom of an eye disease or injury. Routine eye examinations are covered once in a 12–month period. These services are rendered in the optometrist’s office or clinic, the home, a skilled nursing facility, an intermediate care facility, or other appropriate setting. Payment for mileage shall be subject to the same approval and payment criteria as those in effect for Medicare Part B. The following levels of service are recognized for optometric examinations:

(1) and (2) No change.

b. Medical services. Payment will be approved for medically necessary services and supplies within the scope of practice of the optometrist, including services rendered in the optometrist’s office or clinic, the home, a skilled nursing facility, an intermediate care facility or other appropriate setting. Payment for mileage shall be subject to the same approval and payment criteria as those in effect for Medicare Part B.

ITEM 4. Amend subrule 78.9(10), paragraph “a,” as follows:

Amend subparagraph (1), introductory paragraph, as follows:

(1) Private duty nursing services are those services which are provided by a registered nurse or a licensed practical nurse under the direction of the recipient’s physician to a recipient in the recipient’s place of residence or outside the recipient’s residence, when normal life activities take the recipient outside the place of residence. Place of residence does not include nursing facilities, skilled nursing facilities, intermediate care facilities for the mentally retarded, or hospitals.

Amend subparagraph (2), introductory paragraph, as follows:

(2) Personal care services are those services provided by a home health aide or certified nurse’s aide and which are delegated and supervised by a registered nurse under the direction of the recipient’s physician to a recipient in the recipient’s place of residence or outside the recipient’s residence, when normal life activities take the recipient outside the place of residence. Place of residence does not include nursing facilities, skilled nursing facilities, intermediate care facilities for the mentally retarded, or hospitals. Payment for personal care services for persons aged 20 and under that exceed intermittent guidelines may be approved if determined to be medically necessary as defined in subrule 78.9(7). These services shall be in accordance with the recipient’s plan of care and authorized by a physician. The home health agency is encouraged to collaborate with the recipient, or in the case of a child with the child’s caregiver, in the development and implementation of the plan of treatment.

ITEM 5. Amend subrule 78.10(4), paragraph “b,” introductory paragraph, as follows:

b. No payment will be made for sickroom supplies for a recipient receiving care in a skilled nursing facility. Only the following types of sickroom supplies will be approved for payment for recipients receiving care in an intermediate care a nursing facility or an intermediate care facility for the mentally retarded when prescribed by the physician, physician assistant, or advanced registered nurse practitioner:

ITEM 6. Amend rule 441—78.11(249A), introductory paragraph, as follows:

441—78.11(249A) Ambulance service. Payment will be approved for ambulance service if it is required by the recipient’s condition and the recipient is transported to the nearest hospital with appropriate facilities or to one in the same locality, from one hospital to another, to the patient’s home or to a skilled nursing home facility. Payment for ambulance service to the nearest hospital for outpatient service will be approved only for emergency treatment. Ambulance service must be medically necessary and not merely for the convenience of the patient.

ITEM 7. Amend subrule 78.19(1), paragraph “a,” subparagraph (1), as follows:

(1) Services are provided in the recipient’s home or in a care facility (other than a hospital) by a speech therapist, physical therapist, or occupational therapist employed by or contracted by the agency. Services provided a recipient residing in a skilled nursing facility, intermediate care facility, or residential care facility are payable when a statement is submitted signed by the facility that the facility does not have these services available. The statement need only be submitted at the start of care unless the situation changes. Payment will not be made to a rehabilitation agency for therapy provided to a recipient residing in an intermediate care facility for the mentally retarded since these facilities are responsible for providing or paying for services required by recipients.

ITEM 8. Amend rule 441—78.24(249A), introductory paragraph, as follows:

441—78.24(249A) Psychologists. Payment will be approved for services authorized by state law when they are provided by the psychologist in the psychologist’s office, a hospital, or intermediate nursing facility, or residential care facility.

ITEM 9. Amend subrule 78.28(9), paragraph “a,” as follows:

Amend subparagraph (1), introductory paragraph, as follows:

(1) Private duty nursing services are those services which are provided by a registered nurse or a licensed practical nurse under the direction of the recipient’s physician to a recipient in the recipient’s place of residence or outside the recipient’s residence, when normal life activities take the recipient outside the place of residence. Place of residence does not include nursing facilities, skilled nursing facilities, intermediate care facilities for the mentally retarded, or hospitals.

Amend subparagraph (2), introductory paragraph, as follows:

(2) Personal care services are those services provided by a home health aide or certified nurse’s aide and which are delegated and supervised by a registered nurse under the direction of the recipient’s physician to a recipient in the recipient’s place of residence or outside the recipient’s residence, when normal life activities take the recipient outside the place of residence. Place of residence does not include nursing facilities, skilled nursing facilities, intermediate care facilities for the mentally retarded, or hospitals. Payment for personal care services for persons aged 20 and under that exceed intermittent guidelines may be approved if determined to be medically necessary as defined in subrule 78.9(7). These services shall be in accordance with the recipient’s plan of care and authorized by a physician. The home health agency is encouraged to collaborate with the recipient, or in the case of a child with the child’s caregiver, in the development and implementation of the plan of treatment.

ITEM 10. Amend rule 441—79.1(249A) as follows:

Amend the introductory paragraph as follows:

441—79.1(249A) Principles governing reimbursement of providers of medical and health services. The basis of payment for services rendered by providers of services participating in the medical assistance program is either a system based on the provider’s allowable costs of operation or a fee schedule. Generally, institutional types of providers such as hospitals and intermediate care nursing facilities are reimbursed on a cost–related basis and practitioners such as physicians, dentists, optometrists, and similar providers are reimbursed on the basis of a fee schedule. Providers of service must accept reimbursement based upon the department’s methodology without making any additional charge to the recipient.

Amend subrule 79.1(2), basis of reimbursement provider category of “nursing facilities,” as follows:

Rescind and reserve subrule 79.1(9).

ITEM 11. Amend subrule 80.2(2) as follows:

Rescind and reserve paragraph 80.2(2)“u.”

Amend paragraph 80.2(2)“am” as follows:

am. Nursing facilities for persons with mental illness shall submit claims on Form UB–82–HCFA–1450 470–0039.

ITEM 12. Amend rule 441—81.1(249A) as follows:

Amend the definitions of “department’s accounting firm,” “department’s fiscal agent,” “facility,” “facility–based,” “minimum data set,” and “non–facility–based,” as follows:

“Department’s accounting firm” means the firm on contract with the department to calculate nursing facility rates and provide other accounting services as requested. The current accounting firm is Ryun, Givens, Wenthe & Company, 1601 48th Street, Suite 150, West Des Moines, Iowa 50266– 6756.

“Department’s fiscal agent” means the firm on contract with the department to enroll providers, process Medicaid claims, calculate skilled nursing facility rates, and perform other related functions. The current fiscal agent is Consultec, 7755 Office Park Drive, West Des Moines, Iowa 50266.

“Facility” means a licensed nursing facility certified in accordance with the provisions of 42 CFR Part 483, as amended to September 23, 1992, to provide health services and includes skilled hospital–based nursing facilities that are Medicare certified and provide only skilled level of care and swing–bed hospitals unless stated otherwise.

“Facility–based nurse aide training program” means a nurse aide training program which that is offered by a nursing facility and taught by facility employees or under the control of the licensee.

“Minimum data set” or “MDS” refers to a federally required resident assessment tool. Information from the MDS is used by the federal Health Care Financing Administration department to determine the facility’s case–mix index for purposes of the case–mix add–on applying an acuity adjustment to a portion of the standard price as provided by paragraph subrule 81.6(16)“f.”. MDS is described in subrule 81.13(9).

“Non–facility–based nurse aide training program” means a nurse aide training program which that is offered by an organization which that is not licensed to provide nursing facility services.

Rescind the definition of “case–mix add–on.”

Adopt the following new definitions in alphabetical order:

“Case mix” means a measure of the intensity of care and services used by similar residents in a facility.

“Case–mix index” means a numeric score within a specific range that identifies the relative resources used by similar residents and represents the average resource consumption across a population or sample.

“Direct care costs” means specified costs adjusted for acuity by the case–mix index. Costs subject to adjustment are the salaries and benefits of registered nurses, licensed practical nurses, certified nursing assistants, rehabilitation nurses, and contracted nursing services.

“Facility cost report period case–mix index” is the average of quarterly facilitywide average case–mix indices, carried to four decimal places. The quarters used in this average will be the quarters that most closely coincide with the financial and statistical reporting period. For example, a 01/01/2000 – 12/31/2000 financial and statistical reporting period would use the facilitywide average case–mix indices for quarters ending 03/31/00, 06/30/00, 09/30/00 and 12/31/00.

“Facilitywide average case–mix index” is a simple average, carried to four decimal places, of all resident case–mix indices based on the last day of each calendar quarter.

“Medicaid average case–mix index” is a simple average, carried to four decimal places, of all resident case–mix indices where Medicaid is known to be the per diem payor source on the last day of the calendar quarter.

“Normalization” or “cost normalization” refers to theprocess of removing cost variations associated with different levels of resident case mix. Normalized cost is determined by dividing a facility’s per diem allowable case–mix adjusted costs by the facility’s average case–mix index score.

“Patient–day weighted median cost” means the per diem cost of the nursing facility that falls at the median of all nursing facilities’ per diem costs based on the number of patient days provided by facilities with higher and lower costs.

“Special population nursing facility” refers to a nursing facility that serves the following populations:

1. 100 percent of the residents served are under the age of 21 and require the skilled level of care.

2. 70 percent of the residents served require the skilled level of care for neurological disorders.

ITEM 13. Rescind and reserve subrule 81.3(2).

ITEM 14. Amend rule 441—81.6(249A) as follows:

Amend the introductory paragraph as follows:

441—81.6(249A) Financial and statistical report anddetermination of payment rate. With the exception ofhospital–based nursing facilities that are Medicare–certified and provide only the skilled level of care, herein referred to as Medicare–certified hospital–based nursing facilities, All all facilities in Iowa wishing to participate in the program shall submit a Financial and Statistical Report, Form 470–0030, to the department’s accounting firm. All Medicare–certified hospital–based nursing facilities shall submit a copy of their Medicare cost report to the department’s accounting firm. Costs for patient care services shall be reported, divided into the subcategories of “Direct Patient Care Costs” and “Support Care Costs.” Costs associated with food and dietary wages shall be included in the “Support Care Costs” subcategory. An electronically submitted cost report shall be accepted if the format is approved by the accounting firm under contract with the department to audit nursing facility cost reports. The financial and statistical report shall be submitted in an electronic format approved by the department. These reports shall be based on the following rules.

Amend subrule 81.6(3) as follows:

81.6(3) Submission of reports. The report shall be submitted to the department’s accounting firm no later than three months after the close of each six months’ period of the facility’s established fiscal year. Failure to submit a report that meets the requirements of this rule within this time shall reduce payment to 75 percent of the current rate. The reduced rate shall be paid for no longer than three months, after which time no further payments will be made.

A facility may change its fiscal year one time in any two–year period. If the facility changes its fiscal year, the facility shall notify the department’s accounting firm 60 days prior to the first date of the change.

Rescind subrule 81.6(4) and adopt the following new subrule in lieu thereof:

81.6(4) Payment at new rate.

a. Except for state–operated nursing facilities and special population nursing facilities, payment rates shall be updated annually with a new standard price and adjusted quarterly thereafter by the average Medicaid case–mix index.

(1) The Medicaid payment rates for services rendered from July 1, 2001, through June 30, 2002, shall be 66.67 percent of the facility’s Medicaid rate effective June 30, 2001, plus a 3 percent inflation allowance and 33.33 percent of the July 1, 2001, standard price adjusted for case mix.

(2) Payment rates for services rendered from July 1, 2002, through June 30, 2003, shall be 33.33 percent of the facility’s Medicaid rate effective June 30, 2001, plus a 6 percent inflation allowance and 66.67 percent of the July 1, 2002, standard price adjusted for case mix.

(3) Payment rates for services rendered from July 1, 2003, and thereafter will be 100 percent of the standard price adjusted for case mix.

b. The Medicaid payment rate for special population nursing facilities shall be updated annually with no quarterly adjustment.

c. The Medicaid payment rate for state–operated nursing facilities shall be updated annually with no quarterly adjustment.

Amend subrule 81.6(5) as follows:

81.6(5) Accrual basis. Facilities not using the accrual basis of accounting shall adjust recorded amounts to the accrual basis. Expenses which pertain to an entire year shall be included in each six–month report in equal amounts. Records of cash receipts and disbursements shall be adjusted to reflect accruals of income and expense.

Amend subrule 81.6(9), paragraph “a,” as follows:

a. Census information shall be based on a patient’s status at midnight at the end of each day. A patient whose status changes from one class to another shall be shown as discharged from the previous status and admitted to the new status on the same day.

Amend subrule 81.6(11), paragraph “h,” subparagraph (4), as follows:

(4) The Effective July 1, 2001, the base maximum allowed compensation for an administrator who is involved in ownership of the facility or who is an immediate relative of an owner of the facility is $1,926 $3,296 per month plus $20.53 $35.16 per month per licensed bed capacity for each bed over 60, not to exceed $2,852 $4,884 per month. An administrator is considered to be involved in ownership of a facility when the administrator has ownership interest of 5 percent or more.

On a semiannual an annual basis, the maximum allowed compensation amounts for these administrators shall be increased or decreased by the inflation factor applied to facility rates as defined specified by subrule 81.6(16)“a.” 81.6(18).

Amend subrule 81.6(12), paragraph “e,” as follows:

e. A new owner or lessee wishing to claim a new rate of interest expense must submit documentation which verifies the amount of down payment made, the actual rate of interest, and the number of years required for repayment with the next semiannual annual cost report. In the absence of the necessary supportive documentation, interest and other property costs for all facilities which that have changed or will change ownership shall continue at the rate allowed the previous owner.

Rescind subrule 81.6(14) and adopt the following new subrule in lieu thereof:

81.6(14) Payment to new facility. The payment to a new facility shall be the standard price. After the first full calendar quarter of operation, the standard price shall be adjusted by the facility’s average Medicaid case–mix index for the facility’s first full calendar quarter of operation. A financial and statistical report shall be submitted from the beginning day of operation to the end of the fiscal year. Subsequent reports shall be submitted annually for a 12–month period ending with the facility’s fiscal year.

Amend subrule 81.6(15) as follows:

81.6(15) Payment to new owner. An existing facility with a new owner shall continue with the previous owner’s per diem rate until a new financial and statistical report has been submitted and a new rate established adjusted quarterly for case mix, not to exceed private pay charges. The facility may shall submit a report for the period from beginning of actual operation under new ownership to the end of the fiscal year or may submit two cost reports within the fiscal year provided the second report covers a period of six months ending on the last day of the fiscal year. Subsequent financial and statistical reports shall be submitted annually for a 12–month period ending with the facility’s fiscal year. The facility shall notify the department’s accounting firm of the date its fiscal year will end and of the reporting option selected.

Rescind subrule 81.6(16) and adopt the following new subrule in lieu thereof:

81.6(16) Establishment of standard prices and reimbursement rate. A standard price shall be established for boththe non–state–owned nursing facilities and the Medicare–certified hospital–based nursing facilities, hereinafter referred to as the non–state–owned nursing facility standard price and the Medicare–certified hospital–based nursing facility standard price.

For purposes of calculating the non–state–owned nursing facility standard price and the Medicare–certified hospital–based nursing facility standard price, the costs shall be divided into two components. One component contains the direct care costs defined in subrule 81.6(19). The second component contains all other allowable costs reported on the financial and statistical report, i.e., administrative, environmental, property, and support care costs that are not adjusted for case mix, hereinafter referred to as non–direct care costs.

The following calculations are performed in establishing the non–state–owned nursing facility standard price and the Medicare–certified hospital–based nursing facility standard price.

a. Calculation of per diem cost. Each nursing facility’s per diem direct care cost and non–direct care cost shall be established. The per diem cost shall be arrived at by dividing total reported expenses by total inpatient days as specified in subrule 81.6(7) during the reporting period. Total reported expenses shall be inflated using the inflation factor specified in subrule 81.6(18) from the midpoint of the cost report period to the midpoint of the rate period.

(1) Non–state–owned nursing facilities. Patient days for purposes of the computation of administrative, environmental, and property expenses shall be inpatient days as specified in subrule 81.6(7) or 80 percent of the licensed capacity of the facility, whichever is greater.

Beginning July 1, 2002, and thereafter, patient days for purposes of the computation of administrative, environmental, and property expenses shall be inpatient days as determined in subrule 81.6(7) or 85 percent of the licensed capacity of the facility, whichever is greater.

(2) Medicare–certified hospital–based nursing facilities. Patient days for purposes of the computation of all expenses shall be inpatient days as determined by subrule 81.6(7).

b. Normalization. The per diem direct care costs are normalized by dividing a facility’s per diem direct care costs by the facility’s cost report period case–mix index as defined in subrule 81.6(19).

c. Calculation of patient–day weighted median. The per diem normalized direct care cost plus the per diem non–direct care cost for each facility is arrayed from low to high to determine the patient–day weighted median cost based on the number of patient days provided by facilities with higher and lower costs. An array and patient–day weighted median is determined separately for both non–state–owned nursing facilities and the Medicare–certified hospital–based nursing facilities.

(1) Effective July 1, 2001, the non–state–owned nursing facility standard price and the Medicare–certified hospital–based nursing facility standard price shall be the patient–day weighted median as calculated using the latest financial and statistical report with a fiscal year end of December 31, 2000, or earlier, multiplied by a percentage of the median specified in 441—subrule 79.1(2).

(2) Effective July 1, 2002, the non–state–owned nursing facility standard price and the Medicare–certified hospital–based nursing facility standard price shall be the patient–day weighted median as calculated using the latest financial and statistical report with a fiscal year end of December 31, 2001, or earlier, multiplied by a percentage of the median as specified in 441—subrule 79.1(2).

(3) For rates effective July 1, 2003, and July 1, 2004, the non–state–owned nursing facility standard price and the Medicare–certified hospital–based nursing facility standard price shall be determined by inflating the July 1, 2002, standard prices forward using the percentage in 441—subrule 79.1(2) of the inflation factor in subrule 81.6(18) projected for the next 12 months.

(4) Effective July 1, 2005, and each third year thereafter, the non–state–owned nursing facility standard price and the Medicare–certified hospital–based nursing facility standard price shall be the patient–day weighted median as calculated using the latest completed Medicare cost report with a fiscal year end of the preceding December 31 or earlier multiplied by a percentage of the median as specified in 441—subrule 79.1(2).

(5) In years after 2005 the non–state–owned nursing facility standard price and the Medicare–certified hospital–based nursing facility standard price shall not be updated using actual cost data. The standard price shall be determined by inflating the prior year’s standard price forward using the inflation factor specified in 441—subrules 79.1(2) and 81.6(18).

d. Reimbursement rate. For non–state–owned nursing facilities and Medicare–certified hospital–based nursing facilities, the reimbursement rate shall be established by adjusting the applicable standard price by the facility’s Medicaid average case–mix index. For non–state–owned nursing facilities located in a Metropolitan Statistical Area, the standard price shall also be adjusted by a wage index.

For purposes of adjusting the standard price by the Medicaid average case–mix index and the wage index, the following calculations are performed.

(1) For each facility, the percentage of the per diem normalized direct care cost to total normalized direct care cost plus non–direct care cost shall be determined. The applicable standard price is multiplied by this percentage to determine the amount of the standard price that is subject to case–mix adjustment and wage adjustment. The non–case–mix–adjusted portion of the standard price is the standard price minus the amount of the standard price that is case–mix adjusted.

(2) The reimbursement rate for non–state–owned nursing facilities not located in a Metropolitan Statistical Area is determined as the sum of the case–mix–adjusted portion of the non–state–owned nursing facility standard price multiplied by the facility’s Medicaid average case–mix index plus the non–case–mix–adjusted portion of the non–state–owned nursing facility standard price.

(3) The reimbursement rate for non–state–owned nursing facilities located in a Metropolitan Statistical Area (MSA) is determined as the sum of the case–mix–adjusted portion of the non–state–owned nursing facility standard price multiplied by the wage index and by the facility’s Medicaid average case–mix index, plus the non–case–mix–adjusted portion of the non–state–owned nursing facility standard price.

The wage index factor shall be determined annually by calculating the average difference between the hospital–based rural wage index and all hospital–based MSA wage indices as published by the Health Care Financing Administration (HCFA) each July. The wage factor will be revised when the skilled nursing facility wage indices are released by HCFA.

(4) The reimbursement rate for Medicare–certifiedhospital–based nursing facilities is determined as the sumof the case–mix–adjusted portion of the Medicare–certified hospital–based nursing facility standard price multiplied by the facility’s Medicaid average case–mix index plus thenon–case–mix–adjusted portion of the Medicare–certified hospital–based nursing facility standard price.

(5) The reimbursement rate for state–operated nursing facilities and special population nursing facilities shall be the average allowable per diem costs, adjusted for inflation, based on the most current financial and statistical report.

Special population nursing facilities enrolled on or after June 1, 1993, shall have an upper limit on their rate equal to the standard price for Medicare–certified hospital–based nursing facilities.

e. Accountability measures. Additional reimbursement for non–state–owned nursing facilities, based on accountability measures, shall also be available in amounts up to 3 percent of the non–state–owned nursing facility standard price. These accountability measures may include areas such as standard surveys and complaint investigations from the department of inspections and appeals, customer satisfaction, employee retention rates, provision of cognitive loss and dementia care, hospitalization rates, pressure ulcer prevention, proportion of expenses relative to direct patient care versus administrative expenses, provision of outpatient services offered, accreditation status, and other objective measures of accountability and quality, with performance measured during the following state fiscal year following identification of specific standards.

Amend subrule 81.6(17), introductory paragraph, as follows:

81.6(17) Cost report documentation. All nursing facilities shall submit semiannual an annual cost reports report based on the closing date of the facility’s fiscal year and the midpoint of the facility’s fiscal year, that incorporate incorporates documentation as set forth below. The documentation incorporated in the cost reports shall include all of the following information:

Adopt the following new subrules:

81.6(18) Inflation factor. The department shall consider an inflation factor in determining the reimbursement rate. The inflation factor shall be based on the HCFA Total Skilled Nursing Facility Market Basket (HCFA/SNF) index published by Data Resources, Inc. The HCFA/SNF listed in the latest available quarterly publication prior to the July 1 rate setting shall be used to determine the inflation factor.

81.6(19) Case–mix index calculation.

a. The Resource Utilization Groups–III (RUG–III) Version 5.12b, 34 group, index maximizer model shall be used as the resident classification system to determine a facility’s case mix based on data from the minimum data set (MDS) submitted by each facility pursuant to subrule 81.13(9). Standard case–mix indices, developed by HCFA, shall be the basis for calculating the average case–mix index and shall be used to adjust the direct care costs in the determination of the standard price and the reimbursement rate.

b. Each resident in the facility on the last day of each calendar quarter with a completed assessment shall be assigned a RUG–III 34 group calculated on the resident’s most current assessment available on the last day of each calendar quarter. This RUG–III group shall be translated to the appropriate case–mix index. From the individual resident case–mix indices, two average case–mix indices for each Medicaid nursing facility shall be determined four times per year based on the last day of each calendar quarter.

The facilitywide average case–mix index is a simple average, carried to four decimal places, of all resident case–mix indices. The Medicaid–average case–mix index is a simple average, carried to four decimal places, of all residents where Medicaid is known to be the per diem payor source on the last day of the calendar quarter. Assessments that cannot be classified to a RUG–III group due to errors shall be excluded from both average case–mix index calculations.

ITEM 15. Amend rule 441—81.10(249A) as follows:

Amend subrules 81.10(1) and 81.10(2) as follows:

81.10(1) Method of payment. Facilities Except for Medicaid accountability measures payment established in par–agraph 81.16(6)“e,” which shall be paid promptly on a lump sum basis following the end of each state fiscal year, facili–ties shall be reimbursed under a cost–related price–based vendor payment program. A per diem rate shall be established based on information submitted according to rule 441—81.6(249A). The per diem rate shall be no greater than the maximum reasonable cost determined by the department.

81.10(2) Authorization of payment. The department shall authorize payment for care in a facility. The authorization shall be obtained prior to admission of the resident, whenever possible. For a nursing facility to be eligible for Medicaid payment for a resident, the facility must, when applicable, exhaust all Medicare benefits.

Amend subrule 81.10(4), paragraph “f,” as follows:

f. Payment for periods when residents are absent for visitation or hospitalization will shall be made at 75 percent of the allowable audited costs for those beds, not to exceed the maximum reimbursement nursing facility’s rate.

Further amend subrule 81.10(4) by adopting new paragraph “h,” as follows:

h. In–state nursing facilities serving Medicaid eligible patients who require a ventilator at least six hours every day, are inappropriate for home care, and have medical needs that require skilled care as determined by the peer review organization shall receive reimbursement for the care of these patients equal to the Medicare–certified hospital–based nursing facility standard price. Facilities may continue to receive reimbursement at this rate for 30 days for any person weaned from a respirator who continues to reside in the facility and continues to meet skilled criteria for those 30 days.

Amend subrule 81.10(7), paragraphs “a,” “b,” and “c,” as follows:

a. The nursing facility shall recompute the average per diem rate on a facilitywide, private pay basis twice yearly. This computation shall coincide with the preparation of the Financial and Statistical Report, Form 470–0030, which is submitted to the department’s accounting firm.

b. An individual private pay resident’s rate shall be computed by accumulating the six 12 months’ total charges for the individual and dividing the total charges by the total number of days in which the bed was occupied by or was being held for the resident. The total monthly charges will include the basic charge per day plus any standard charges for extra care and service.

c. To compute the facilitywide average private pay per diem rate, the facility shall accumulate total monthly charges for all private pay residents for the six 12–month period and divide by the total patient days for all private pay residents for the same period to arrive at the private pay average per diem rate for the entire facility.

ITEM 16. Rescind subrule 81.20(1) and adopt the following new subrule in lieu thereof:

81.20(1) Out–of–state providers. Except for Medicare–certified hospital–based nursing facilities and special population nursing facilities, out–of–state providers shall be reimbursed at the same nursing facility rate they would receive from the Medicaid program in their state of residence or the Iowa standard price, whichever is lower.

a. Medicare–certified hospital–based nursing facilities providing skilled care in other states shall be reimbursed at the Iowa standard price for Medicare–certified hospital–based nursing facilities if one of the following criteria is met:

(1) The placement is recommended because moving the resident back to Iowa would endanger the resident’s health, because services are not readily available in Iowa, or because the out–of–state placement is cost–effective.

(2) The placement is temporary until services are available to the resident in Iowa or until the program of treatment is completed.

b. Special population nursing facilities shall be reimbursed at the same nursing facility rate they would receive from Medicaid in their state of residence or the Iowa standard price if one of the following criteria is met:

(1) The placement is recommended because moving the resident back to Iowa would endanger the resident’s health, because services are not readily available in Iowa, or because the out–of–state placement is cost–effective.

(2) The placement is temporary until services are available to the resident in Iowa or until the program of treatment is completed.

ITEM 17. Amend rule 441—81.31(249A), definition of “deficiency,” as follows:

“Deficiency” means a skilled nursing facility’s or nursing facility’s failure to meet a participation requirement.

Pursuant to the authority of Iowa Code section 135G.7, the Department of Inspections and Appeals hereby gives Notice of Intended Action to amend Chapter 52, “Birth Centers,” Iowa Administrative Code.

The proposed amendments remove unnecessary regulation related to birth center governing bodies, health records maintained by birth centers and staff requirements. Item 1 removes regulation pertaining to the director of the birth center and the director of medical affairs. Item 2 removes regulation pertaining to annual medical evaluations for staff and amends the rule to require medical evaluations at the commencement of employment and at least every four years thereafter. Item 3 adds HIV status to the list of complications that shall require the midwife to call and confer with the client’s consulting physician to determine if the pregnancy continues to be low risk. Item 4 removes employment agreements from the list of required personnel policies to be maintained by a birth center. Item 5 removes language requiring a consulting physician to review and sign a client’s health record after delivery. Item 6 extends the individuals to be informed of the policies and procedures of the birth center beyond client and family to other individuals if identified by the client. Item 7 corrects the erroneous use of the word “and” by replacing it with the word “or” in the listing of symptoms associated with gastrointestinal distress.

These amendments do not provide for waivers because the amendments remove regulations and requirements to the licensees’ benefit.

Any interested person may make written comments or suggestions on the proposed amendments on or before February 27, 2001. Written materials should be addressed to the Director, 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 intended to implement Iowa Code chapter 135G.

The following amendments are proposed.

ITEM 1. Amend rule 481—52.3(135G) as follows:

481—52.3(135G) Direction. Each birth center, whether organized as a proprietary or voluntary service under sole ownership or corporate group, shall have a governing body with full authority and responsibility for overall policy and fiscal management of the facility and services. The governing body shall:

1. Develop and make available to the department a table of organization which shows the position of each staff member.

2. Be responsible for the appointment of the director of the birth center and a director of medical affairs.

3. Adopt bylaws which include criteria for staff and consultation appointments, delineation of clinical privileges and organization of staff.

ITEM 2. Amend subrule 52.4(4) as follows:

52.4(4) All staff shall have an annual medical evaluation by a physician with a valid license to practice medicine and surgery, osteopathic medicine and surgery or osteopathy certifying that the staff member is physically and emotionally capable of performing assigned tasks. Health examinations for all personnel shall be required at the commencement of employment and at least every four years thereafter. The examination shall include, at a minimum, the health and tuberculosis status of the employee.

ITEM 3. Adopt new paragraph 52.5(1)“n” as follows:

n. HIV status.

ITEM 4. Amend subrule 52.9(2) as follows:

52.9(2) Personnel policies. Personnel policies shall include job descriptions for all personnel, employment agreements, description of required orientation, training and educational preparation. These policies shall be available on site.

ITEM 5. Rescind paragraph 52.9(4)“h” as follows:

ITEM 6. Amend rule 481—52.10(135G), introductory paragraph and numbered paragraphs “1” to “7,” as follows:

481—52.10(135G) Services. Each client, and family or those otherwise identified by the client shall be fully informed of the policies and procedures of the licensed birth center, including, but not limited to:

1. The selection of clients,

2. The expectation for prenatal care and self–help involving the client and family,

3. The qualifications of the clinical staff,

4. Conditions which may result in a transfer to physician management or a hospital,

5. The philosophy of childbirth care practiced by the staff,

6. Services available, and

7. The customary length of stay after delivery.

ITEM 7. Amend subparagraph 52.10(4)“b”(10) as follows:

(10) Gastrointestinal distress as exemplified by bilious vomiting, continuous vomiting, abdominal distention, and or bloody diarrhea,

Pursuant to the authority of Iowa Code section 88.5, the Labor Commissioner hereby gives Notice of Intended Action to amend Chapter 10, “General Industry Safety and Health Rules,” Iowa Administrative Code.

The proposed amendment adopts the new federal ergonomics standard. The purpose of the standard is to reduce the number and severity of musculoskeletal disorders (MSDs) caused by exposure to risk factors in general industry workplaces. The standard contains an action trigger, which identifies jobs with risk factors of sufficient magnitude, duration, or intensity to warrant further examination by the employer. These risk factors include repetition, awkward posture, force, vibration, and contact stress. If an employee reports an MSD incident and the risk factors of that employee’s job meet the action trigger, the employer must establish an ergonomics program for that job.

Adoption of this new standard is mandated pursuant to 29 Code of Federal Regulations 1953.23(a)(2) and Iowa Code section 88.5(1)(a).

The anticipated effective date for the new standard is May 9, 2001, but enforcement will not begin until October 14, 2001. In the interim, the Iowa Occupational Safety and Health Administration will continue to address ergonomics hazards in the workplace through education, outreach, and, when appropriate, enforcement using the general duty clause.

A public hearing will be held on March 1, 2001, at 10 a.m. in the Stanley Room, Workforce Development Department, 1000 East Grand Avenue, Des Moines, Iowa. Any interested person will be given the opportunity to make an oral statement and submit documents. The facility for the oral presentations is accessible to and functional for persons with physical disabilities. Persons who have special requirements should telephone (515)242-5869 in advance to arrange access or other needed services.

Written data or arguments to be considered in adoption may be submitted no later than March 1, 2001, to the Deputy Labor Commissioner, Division of Labor Services, 1000 East Grand Avenue, Des Moines, Iowa 50319-0209, or faxed to (515)281-7995. E-mail may be sent to kathleen.uehling@ iwd.state.ia.us.

This amendment will necessitate additional annual expenditures exceeding $100,000 by all political subdivisions or agencies and entities that contract with political subdivisions to provide services. Based on statistics supplied by the U.S. Department of Labor, Occupational Safety and Health Administration (OSHA), the estimated annual cost for state and local governments in Iowa is $13,146,198. Federal OSHA estimates the standard will prevent approximately 4,410 MSDs annually among government employees in Iowa. The annual savings for state and local governments are estimated at $18 million. None of the costs to political subdivisions will be paid by the state.

The Division will issue a regulatory analysis as provided in Iowa Code section 17A.4A if an appropriate written request is filed by delivery or by mailing postmarked no later than March 12, 2001, to the Deputy Labor Commissioner, Division of Labor Services, 1000 East Grand Avenue, Des Moines, Iowa 50319. Appropriate requests are described in Iowa Code section 17A.4A.

This amendment is intended to implement Iowa Code section 88.5.

The following amendment is proposed.

Amend rule 875—10.20(88) by inserting at the end thereof:

65 Fed. Reg. 68846 (November 14, 2000)

Pursuant to the authority of Iowa Code sections 147.76 and 272C.3, the Board of Medical Examiners hereby gives Notice of Intended Action to amend Chapter 13, “Standards of Practice and Professional Ethics,” Iowa Administrative Code.

The Board of Medical Examiners approved the amendment during a meeting held on January 11, 2001.

The proposed amendment defines surgery and defines the use of lasers as surgery. It restricts the use of laser surgery to individuals licensed to practice medicine and surgery and osteopathic medicine and surgery or to those categories of practitioners currently licensed in Iowa to perform surgery. It requires physicians who use lasers to use only those approved by the U.S. Food and Drug Administration (FDA) unless functioning under protocols approved by an institutional review board. Lasers are employed in certain procedures for the removal of human tissue, e.g., hair, wrinkles, tattoos, where various devices manipulate or pulse light causing it to penetrate human tissue and are classified as “prescription” by the FDA. A physician may delegate the use of such technology for these procedures only to an Iowa–licensed practitioner with appropriate medical training who is under the supervision of and on the premises with an Iowa–licensed physician who bears responsibility for those procedures.

Any interested person may present written comments, data, views, and arguments on the proposed amendment not later than 4 p.m. on February 27, 2001. Such written materials should be sent to Ann E. Mowery, Executive Director, Board of Medical Examiners, 400 S.W. Eighth Street, Suite C, Des Moines, Iowa 50309–4686.

There will be a public hearing held in the Board’s conference room on February 28, 2001, at 3 p.m. at 400 S.W. Eighth Street, Suite C, Des Moines, Iowa. Interested persons may present their views either orally or in writing.

This amendment is intended to implement Iowa Code sections 147.55 and 148.6.

The following new rule is proposed.

653—13.4(147,148,150) Standards of practice—surgery. Surgery involves the revision, destruction, incision, or structural alteration of human tissue and is performed using a variety of methods and instruments. Surgery is a discipline that includes the operative and nonoperative care of individuals in need of such intervention, and demands preoperative assessment, judgment, technical skills, postoperative management, and follow up.

13.4(1) Laser surgery. The revision, destruction, incision, or other structural alteration of human tissue using laser technology is surgery.

a. Laser surgery shall be performed only by individuals licensed to practice medicine and surgery and osteopathic medicine and surgery or by those categories of practitioners currently licensed in Iowa to perform surgery.

b. Physicians shall use devices approved by the U.S. Food and Drug Administration (FDA) unless functioning under protocols approved by institutional review boards.

c. Lasers are employed in certain procedures for the removal of human tissue, e.g., hair, wrinkles, tattoos, where various devices manipulate or pulse light causing it to penetrate human tissue and are classified as “prescription” by the FDA. A physician may delegate the use of such technology for these procedures only to an Iowa–licensed practitioner with appropriate medical training who is under the supervision of and on the premises with an Iowa–licensed physician who bears responsibility for those procedures.

13.4(2) Reserved.

This rule is intended to implement Iowa Code chapters 147, 148, and 150.

Pursuant to the authority of Iowa Code section 147.76, the Board of Physician Assistant Examiners hereby gives Notice of Intended Action to amend Chapter 325, “Physician Assistants,” Iowa Administrative Code.

The proposed amendments remove unnecessary approval processes in the licensure and registration of physician assistants; amend language referring to remote medical clinics; and update free clinic language.

Any interested person may make written comments on the proposed amendments no later than February 28, 2001, addressed to Rosalie Steele, Professional Licensure Division, Department of Public Health, Lucas State Office Building, Des Moines, Iowa 50319–0075.

The Division revised these rules in accordance with Executive Order Number 8. The Division sent letters to the public for comment, and two letters were received in return. Division staff also had input on these amendments. The comments received were discussed by the Board, and decisions were made based on need, clarity, intent and statutory authority, cost and fairness.

A public hearing will be held on February 28, 2001, from9 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 were reviewed by the combined rules committee of the Board of Medical Examiners and the Board of Physician Assistant Examiners as required in Iowa Code section 148C.7. The committee agreed to the changes in the rules.

These amendments are intended to implement Iowa Code section 147.76 and chapters 148C and 272C.

The following amendments are proposed.

ITEM 1. Amend rule 645—325.1(148C) by adopting the following new subrules:

325.1(1) The physician assistant shall notify the board of any change in permanent address within 30 days of its occurrence.

325.1(2) A physician assistant registered or licensed under Iowa Code chapter 148C may use the words “physician assistant” after the person’s name or signify the same by the use of the letters “P.A.”

325.1(3) The physician assistant shall maintain documentation of currently approved supervising physicians that shall be made available to the physician assistant board upon request.

ITEM 2. Amend rule 645—325.2(148C) as follows:

Adopt the following new definitions in alphabetical order:

“NCCPA” means the National Commission on Certification of Physician Assistants.

“Registration” means the act of an individual who has fulfilled all requirements for licensure but is not under the supervision of an Iowa licensed physician and shall not practice the profession of physician assistant.

Amend the definition of “remote clinic” as follows:

“Remote clinic site” means a medical clinic for ambulatory patients which is away from the main practice location of a supervising physician and in which a supervising physician is present less than 50 percent of the time the clinic site is open. The remote clinic site definition will not be applied to nursing homes, patient homes, hospital outpatient departments or at any location at which medical care is incidentally provided (e.g., diet center, free clinic, site for athletic physicals, jail facility).

ITEM 3. Rescind rules 645—325.3(148C) to 645— 325.5(148C) and adopt the following new rules 645— 325.3(148C) to 645—325.5(148C) in lieu thereof:

645—325.3(148C) Registration and licensure. Registration and licensure may be completed simultaneously.

325.3(1) Registration. Initial registration shall be valid for at least one year and shall expire on September 30 following the first anniversary of the initial registration. The applicant shall:

a. Apply to the board on an application provided by the board;

b. Submit a notarized copy of the certificate or diploma from an approved program for physician assistants;

c. Submit the registration fee;

d. Submit a notarized copy of the examination scores from the NCCPA initial certification examination or successor examination; and

e. Submit a notarized copy of the current NCCPA or successor agency certificate.

325.3(2) Temporary registration. A temporary registration is issued for applicants who have not taken the NCCPA initial certification examination or successor agency examination. The temporary registration shall be valid for one year from the date of issuance.

a. The applicant shall:

(1) Apply to the board on an application provided by the board;

(2) Submit a notarized copy of the certificate or diploma from an approved program for physician assistants; and

(3) Submit the temporary registration fee.

b. The temporary registration shall be renewed only upon a showing that through no fault of the physician assistant the applicant was unable to take the certifying examination recognized by the board. Proof of inability to take the certifying examination shall be required.

c. The temporary registrant shall surrender the temporary registration and licensure within 24 hours if the physician assistant fails the certifying examination.

There is no additional fee for converting temporary registration to registration.

325.3(3) Registration by endorsement. An applicant who has been registered under the laws and jurisdiction of another state or district shall file with the board office an application for registration by endorsement. The applicant shall:

a. Apply to the board on an application provided by the board;

b. Submit the registration fee;

c. Submit a notarized copy of the certificate or diploma from an approved program for physician assistants;

d. Submit a notarized copy of one of the following:

(1) Current NCCPA or successor agency certificate; or

(2) Proof of completion of 100 CME hours for the past two years; and

e. Submit registration verification(s) from all states where the applicant is currently licensed or was formerly licensed.

325.3(4) Initial licensure. An initial license shall be valid for at least one year and shall expire on September 30 following the first anniversary of initial licensure. The applicant shall:

a. Apply to the board on an application provided by the board, which includes:

(1) The supervising physician’s background and specialty;

(2) The scope of practice of the physician assistant; and

(3) The plan for supervision of the physician assistant which includes ongoing communication with the supervising physician including telecommunication, chart review, coverage arrangements, a quality assurance program and a description of how the physician assistant is to function within the scope of practice as referenced in subrules 325.7(3) and 325.7(4);

b. Submit a notarized copy of the certificate or diploma from an approved program for physician assistants;

c. Submit the license fee;

d. Submit the registration fee;

e. Submit a notarized copy of the examination scores from the NCCPA initial certification examination or successor examination;

f. Submit a notarized copy of the current NCCPA or successor agency certificate; and

g. Submit evidence for each supervising physician that the physician is eligible to supervise a physician assistant. Pursuant to 653—subrule 21.3(2), submission of the following is proof of eligibility:

(1) A copy of the supervising physician’s current license or renewal card; and

(2) A signed attestation from the supervising physician that:

1. The physician is actively practicing medicine in Iowa; and

2. The physician is not subject to a disciplinary order of the board of medical examiners restricting the physician from supervising a physician assistant.

Determination of physician eligibility or ineligibility to supervise a physician assistant is made by the board of medical examiners. Nothing in these rules should be read as implying that the board of physician assistant examiners will be making determinations of physician eligibility or ineligibility.

325.3(5) Temporary licensure. A temporary license shall be valid for one year from date of issuance and is issued to applicants who have graduated from an approved program and have not taken the NCCPA initial certification or successor agency examination.

a. The applicant shall:

(1) Apply to the board on an application provided by the board, which includes:

1. The supervising physician’s background and specialty;

2. The scope of practice of the physician assistant; and

3. The plan for supervision of the physician assistant which includes ongoing communication with the supervising physician including telecommunication, chart review, coverage arrangements, a quality assurance program and a description of how the physician assistant is to function within the scope of practice as referenced in subrules 325.7(3) and 325.7(4);

(2) Submit a notarized copy of the certificate or diploma from an approved program for physician assistants;

(3) Submit the temporary license fee;

(4) Submit the temporary registration fee; and

(5) Submit a copy of all renewal cards or proof of current licensure for all supervising physicians as evidence that the physician is eligible to supervise.

b. There is no additional fee for conversion to permanent licensure.

c. During the temporary licensure period, if the temporarily licensed physician assistant fails the certifying examination, the temporarily licensed physician assistant must cease practicing as a physician assistant immediately and surrender the temporary license.

325.3(6) Licensure by endorsement. An applicant who has been licensed under the laws and jurisdiction of another state or district shall file with the board office an application for licensure by endorsement. The applicant shall:

a. Apply to the board on an application provided by the board, which includes:

(1) The supervising physician’s background and specialty;

(2) The scope of practice of the physician assistant; and

(3) The plan for supervision of the physician assistant which includes ongoing communication with the supervising physician including telecommunication, chart review, coverage arrangements, a quality assurance program and a description of how the physician assistant is to function within the scope of practice as referenced in subrules 325.7(3) and 325.7(4);

b. Submit the licensure fee;

c. Submit the registration fee;

d. Submit a notarized copy of the certificate or diploma from an approved program for physician assistants;

e. Submit a notarized copy of the examination scores from the NCCPA initial certification examination or successor examination;

f. Submit a notarized copy of one of the following:

(1) Current NCCPA or successor agency certificate; or

(2) Proof of completion of 100 CME hours in the past two years;

g. Submit license verification(s) from all states where the applicant is currently or has been licensed; and

h. Submit a notarized copy of the supervising physician’s renewal card or proof of current licensure.

325.3(7) In the event that the physician assistant has no relationship agreement with any physician, the physician assistant automatically reverts to registration status and shall notify the board office in writing within ten days.

325.3(8) Once the physician is approved by the board of medical examiners, the board of physician assistant examiners will consider the physician eligible to supervise a physician assistant until the board receives written notification from the board of medical examiners stating otherwise.

325.3(9) No more than two physician assistants shall be supervised by any one physician at a time. A physician assistant may provide medical services under the supervision of one or more physicians for whom the physician assistant has been licensed.

325.3(10) If a physician assistant with a valid license discontinues working with one physician or group of physicians and chooses to work with a different physician or group of physicians, the licensee shall submit an updated Physician Supervision Form and a copy of the supervising physician’s current renewal card or proof of current licensure as issued by the Iowa board of medical examiners. There will be no additional fee to revise the physician assistant supervisor checklist.

325.3(11) In the event the license of a supervising physician has been restricted by the Iowa board of medical examiners in a disciplinary order affecting the physician’s ability to supervise a physician assistant, the practice of the physician assistant shall conform to the disciplined physician’s practice when supervised by that physician only.

645—325.4(148C) Registration and license renewal. An application and continuing education report form for renewal of registration or license to practice shall be mailed to the registrant or licensee at least 60 days prior to the expiration of the registration or license. Failure to receive the renewal application shall not relieve the registration/license holder of the obligation to pay biennial renewal fees on or before the renewal date.

325.4(1) Registration and license renewal.

a. Registration renewal.

(1) The initial registration renewal period for a registered physician assistant shall begin on October 1 and end on September 30 of each year.

(2) Each subsequent renewal shall be valid for a period of two years and shall expire on September 30 two years following the date of registration.

(3) Registrants who wish to have their registrations renewed shall:

1. Complete the board–approved renewal form;

2. Submit the renewal fee;

3. Submit a notarized copy of proof of completion of 100 CME hours for the past two years or NCCPA or successor agency certification;

4. Return the report to Board of Physician Assistant Examiners, Professional Licensure Division, Fifth Floor, Lucas State Office Building, Des Moines, Iowa 50319–0075.

(4) Individuals who fail to renew within 30 days after expiration of the registration shall have a lapsed registration. A new application, application fee, renewal form, renewal fee, late registration fee, and continuing education hours as required by the board shall be submitted. The following chart illustrates the requirements for renewal of a lapsed registration:

b. License renewal.

(1) The initial license renewal period for a licensed physician assistant shall begin on October 1 and end on September 30 of each year.

(2) Each subsequent renewal shall be valid for a period of two years and shall expire on September 30 two years following the date of licensure.

(3) Licensees who wish to have their licenses renewed shall:

1. Complete the board–approved renewal form;

2. Submit the renewal fee for license and registration;

3. Submit a notarized copy of proof of completion of 100 CME hours every two years or NCCPA or successor agency certification;

4. Return the report to Board of Physician Assistant Examiners, Professional Licensure Division, Fifth Floor, Lucas State Office Building, Des Moines, Iowa 50319–0075.

(4) Individuals who fail to renew within 30 days after expiration of the license shall have a lapsed license. A new application, application fee, renewal form, renewal fee, late license fee, and continuing education hours as required by the board shall be submitted. The physician assistant shall not practice until the lapsed license is renewed. The following chart illustrates the requirements for renewal of a lapsed license:

325.4(2) Temporary renewals.

a. Temporary registration renewal.

(1) The temporary registration may be renewed if the applicant was unable to take the certifying examination recognized by the board.

(2) The applicant shall pay the renewal fee for registration.

(3) The applicant shall be required to show proof of inability to take the certifying examination.

(4) The temporary registration shall be renewed only one time.

b. Temporary license renewal.

(1) The temporary license shall be renewed only if the licensee was unable to take the certifying examination recognized by the board.

(2) The licensee shall pay the renewal fee for licensure.

(3) The licensee shall be required to show proof of inability to take the certifying examination.

(4) The temporary license shall be renewed only one time.

645—325.5(148C) Fees. All fees are nonrefundable.

325.5(1) Application fee for a license to practice is $100.

325.5(2) Application fee for registration is $50.

325.5(3) Renewal of license and registration fee is $100.

325.5(4) Renewal of registration fee only is $5.

325.5(5) Late fee for a lapsed license and registration is $100.

325.5(6) Late fee for a lapsed registration is $45.

325.5(7) Fee for a temporary license is $100.

325.5(8) Fee for temporary registration is $50.

325.5(9) Duplicate license fee is $10.

325.5(10) Fee for verification of license or registration is $10.

325.5(11) Returned check fee is $15.

325.5(12) License by endorsement fee is $100.

ITEM 4. Amend subrule 325.6(3) as follows:

325.6(3) A licensed physician assistant shall make application on the forms approved by the board to work in a free medical clinic. This application shall include the following: No application or prior approval is required for work in a free clinic. All requirements for licensees in 645— 325.3(148C) and 645—325.4(148C) apply to free medical clinics.

ITEM 5. Rescind subrule 325.6(4).

ITEM 6. Rescind paragraph 325.7(1)“x” and adopt new paragraph 325.7(1)“x” as follows:

x. Perform duties under the supervision of a physician who has sufficient training or experience in the area of medical practice in which a physician assistant is to be utilized.

ITEM 7. Amend subrule 325.7(4) as follows:

325.7(4) Remote medical clinic site.

a. A physician assistant may provide medical services in a remote medical clinic site if:

(1) The physician assistant has a permanent license and at least one year of practice as a physician assistant. The board may waive the requirement for one year of practice experience for a physician assistant if all of the following conditions are met:

1. The physician assistant has a permanent license and at least six months of practice as a physician assistant;

2. The supervising physician and physician assistant worked together at the same location for a period of at least three months prior to the date the physician assistant is to begin practicing in the remote clinic site; and

3. Patient care provided by the physician assistant is reviewed by the supervising physician at least weekly and the supervising physician signs all charts on patient care rendered without documented direct consultation with the physician during the first year of the physician assistant’s practice.

(2) The physician assistant and supervising physician comply with the supervision requirements outlined in 325.7(3).

(3) A supervising physician must visit a remote clinic site to provide additional medical direction, medical services and consultation at least every two weeks or less frequently as specified in special circumstances. When visits are less frequent than every two weeks in unusual or emergency circumstances, the board shall be notified in writing of these circumstances.

b. When a physician assistant supplies medications as delegated by a supervising physician in a remote clinic site, the physician assistant shall secure the regular advice and consultation of a pharmacist regarding the distribution, storage and appropriate use of prescription drugs, controlled substances, and medical devices.

ITEM 8. Adopt new subrule 325.11(1) as follows:

325.11(1) A physician assistant who receives any disciplinary action from the board shall notify all supervising physicians.

Pursuant to the authority of Iowa Code section 136C.3, the Department of Public Health hereby gives Notice of Intended Action to amend Chapter 38, “General Provisions for Radiation Machines and Radioactive Materials”; Chapter 39, “Registration of Radiation Machine Facilities, Licensure of Radioactive Materials and Transportation of Radioactive Materials”; Chapter 40, “Standards for Protection Against Radiation”; Chapter 41, “Safety Requirements for the Use of Radiation Machines and Certain Uses of Radioactive Materials”; Chapter 42, “Minimum Certification Standards for Diagnostic Radiographers, Nuclear Medicine Technologists, and Radiation Therapists”; Chapter 45, “Radiation Safety Requirements for Industrial Radiographic Operations”; and Chapter 46, “Minimum Requirements for Tanning Facilities,” Iowa Administrative Code.

The following itemize the proposed changes.

Items 1, 7, 10, 16, 44, and 48 amend the rules to reflect current federal regulations.

Item 2 changes a definition to include all sources of radiation possibly administered to humans. It adds a definition inadvertently deleted when the definition of “misadministration” was changed. It adds two definitions inadvertently deleted in a past rule change.

Item 3 changes the fee structure to allow deviation from the federal fee schedule. The agency can adjust fees based on the actual cost.

Items 4, 5, and 41 add or increase late fees to deter late submissions and to help decrease staff workload. The second paragraph is also updated to cover all areas in the agency’s radiation rules where a fee is charged.

Item 6 adds a subrule to allow for help to recover costs involved in training staff and monitoring shipments.

Items 8 and 9 strike language regarding out–of–state requirements from one subparagraph and add language regarding in–state requirements to another subrule since the requirement is for in–state licensees only.

Items 11, 12, 13, 14, 15, 22, and 23 correct inaccurate references.

Item 17 rescinds a definition that was moved to Chapter 38.

Items 18 and 39 change wording to indicate that shielding plans meet certain standards. The agency does not approve shielding plans.

Item 19 places a requirement in written procedures for the operator to follow good health protection practices. Inspections showed that even though the facility met the protective barrier requirement, the operator was not following good health protection practices.

Item 20 restricts moveable X–ray systems from being moved from a shielded room to a nonshielded room, allowing unnecessary radiation exposure.

Item 21 exempts veterinary systems from meeting requirements that are not necessary for veterinary systems.

Items 24, 25, 26, and 27 amend rules to include items inadvertently omitted when the definition of “misadministration” was changed. (The definition of “reportable medical event” was added in Item 2.)

Item 28 changes the requirement to include all settings frequently used so that more accurate checks are performed.

Items 29 and 30 allow use of sources not specifically listed further in the rule. This means the agency does not have to amend the rule for every new source marketed.

Item 31 adds training requirements for new areas of use for authorized users of radioactive material.

Items 32, 33, 34, 35, 36, 37, and 38 change wording to clarify the difference between mammography units used for diagnostic purposes and biopsy units which are used for tissue removal.

Item 40 changes the way the Department assigns approval to limited diagnostic radiographers. This should make the designation easier to understand. It also prohibits views normally used in mobile chest radiography since many limited diagnostic radiographers are now being employed by hospitals where mobile chest units are common. Mobile chest radiography is considered beyond the scope of practice for limited diagnostic radiographers.

The definitions involving simulation radiography have been changed to prohibit simulation therapists from using isotopes because simulation therapists are not trained to use isotopes.

Item 42 allows a nuclear pharmacist to oversee certain training of nuclear medicine technologists. This is standard practice in training institutions.

Item 43 changes the definition to include X–ray systems since both sealed source and X–ray systems are used for industrial radiography and regulated in these rules.

Items 45 and 46 allow an individual approved for industrial radiography by another certifying entity to work in Iowa under reciprocity. Since many individuals work in Iowa for companies not based in Iowa, this change ensures that these individuals meet the same qualifications as individuals certified by Iowa.

Item 47 deletes duplicate wording that is included in the definition.

Item 49 adds a fee for regaining a suspended or revoked permit in order to recover fees incurred in the suspension or revocation process. Some individuals allow suspension or revocation in order to avoid additional penalties and then reinstate at a later date.

Item 50 allows for the counties who contract to perform tanning inspections to regain costs incurred in order to get facilities to correct violations in a timely manner.

Item 51 is changed to prevent two individuals from being in the tanning room at the same time. When two individuals are in the room at the same time, the operator does not have control over the exposure times of the individuals.

Item 52 prohibits “unlimited” tanning so that the facility must meet the exposure schedules recommended by the manufacturer.

These rules are subject to waiver pursuant to the Department’s exemption provision contained at 641-38.3(136C). For this reason, the Department has not provided a specific provision for waiver of these particular rules.

Any interested person may make written suggestions or comments on these proposed amendments prior to the close of business on February 27, 2001. Such written materials should be directed to Donald A. Flater, Chief, Bureau of Radiological Health, Department of Public Health, 401 S.W. 7th Street, Suite D, Des Moines, Iowa 50309; fax: (515) 725–0318; or E–mail: dflater@idph.state.ia.us.

A public hearing will be held on February 27, 2001, at 8:30 a.m. in the Conference Room, Iowa Department of Public Health, 401 S.W. 7th Street, Suite D, Des Moines, Iowa, at which time persons may present their views 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 person who plans to attend a public hearing and has special requirements such as hearing or mobility impairments should contact the Department of Public Health to advise of specific needs.

These amendments are intended to implement Iowa Code chapter 136C.

The following amendments are proposed.

ITEM 1. Amend subrule 38.1(2) as follows:

38.1(2) All references to Code of Federal Regulations (CFR) in this chapter are those in effect as of May 10, 2000 May 9, 2001.

ITEM 2. Amend rule 641-38.2(136C) as follows:

Rescind the definition of “healing arts.”

Adopt the following new definitions in alphabetical order:

“Healing arts screening” means the testing of human beings using radiation for the detection or evaluation of health indications when such tests are not specifically and individually ordered by an individual authorized under 641—subparagraph 41.1(3)“a”(7) or listed as an authorized user on an Iowa, U.S. Nuclear Regulatory Commission, or agreement state radioactive materials license.

“Reportable medical event” means the administration of radioactive material for diagnostic medical use that results in the patient’s or human research subject’s receiving:

1. Greater or less than 20 percent of a prescribed dose;

2. A dose intended for another individual; or

3. A dose that was not prescribed by an authorized user.

“Type A quantity” means a quantity of radioactive material, the aggregate radioactivity of which does not exceed A₁ for special form radioactive material, or A₂, for normal form radioactive material.

“Type B quantity” means a quantity of radioactive material greater than a Type A quantity.

ITEM 3. Amend subparagraph 38.8(2)“a”(1) as follows:

(1) Fees associated with licensing of the possession and use of radioactive materials in Iowa are identical to those shall not exceed those specified in 10 CFR 170.31 entitled “Schedule of Fees for Materials Licenses and Other Regulatory Services.”.

ITEM 4. Amend subrule 38.8(6) by adopting new paragraph “d” as follows:

d. Continuing education late fee. Any individual who will not complete the required continuing education before the continuing education due date and wishes to submit a plan of correction as set forth in 641-subparagraph 42.2(3)“g”(2) shall submit a fee of $25 along with the written plan of correction.

ITEM 5. Amend subrule 38.8(7), paragraphs “a” and “b,” as follows:

a. $15 $25 for each payment received by the agency in accordance with these rules, for which insufficient funds are available to fulfill the obligation of such payment to the agency.

b. $25 for each month for failure to pay annual radiation machine registration or diagnostic radiation operator fee any fee administered by this agency starting the first day of the month after the expiration of the facility’s registration or operator’s permit to practice 30 days after the due date of the original notice. This fee is added to the unpaid annual fee.

ITEM 6. Adopt new subrule 38.8(11) as follows:

38.8(11) Radioactive waste transportation.

a. All shippers of waste containing radioactive materials transporting waste across Iowa shall pay the following fee(s) unless the agency is able to obtain appropriate funding from another source (i.e., federal agency).

(1) $1750 per truck for each truck shipment of spent nuclear fuel, high–level radioactive waste or transuranic waste traversing the state or any portion thereof. Single cask truck shipments are subject to a surcharge of $15 per mile for every mile over 250 miles for the first truck in each shipment.

(2) $250 per truck for transport of low–level radioactive waste.

(3) $1250 for the first cask and $100 for each additional cask for each rail shipment of spent nuclear fuel, high–level radioactive waste or transuranic waste traversing the state or any portion thereof.

(4) $250 for the first rail car and $50 for each additional rail car in the train for transport of low–level radioactive waste.

b. All fees must be received by the agency prior to shipment. The agency will provide each shipper with a Certificate of Payment of Fees. The certificate must accompany the shipment when it enters Iowa and be available for inspection by the agency or a representative of the motor carrier safety division of the Iowa department of transportation.

ITEM 7. Amend subrule 39.1(3) as follows:

39.1(3) All references to any Code of Federal Regulations (CFR) in this chapter are those in effect as of May 10, 2000 May 9, 2001.

ITEM 8. Amend subrule 39.4(1) as follows:

a. In addition to the requirements of this chapter, all licensees are subject to the requirements of 641-Chapters 38, 40 and 41. Furthermore, licensees engaged in industrial/nonmedical radiographic operations are subject to the requirements of 641-Chapter 45; licensees using radionuclides in the healing arts are subject to the requirements of 641-41.2(136C) and 641-Chapter 42; and licensees engaged in land disposal of radioactive material are subject to the requirements of 641-Chapter 40.

ITEM 9. Amend subparagraph 39.4(90)“a”(1) as follows:

(1) Subject to 641-Chapter 39, any person who holds a specific license from the U.S. Nuclear Regulatory Commission or an agreement state, and issued by the agency having jurisdiction where the licensee maintains an office for directing the licensed activity and at which radiation safety records are normally maintained, is hereby granted a general license to conduct the activities authorized in such licensing document within this state for a period not in excess of 180 days in a one–year period. The one–year period starts on the day the licensee’s reciprocity fee, as specified in 641-subrule 38.8(8), is received by the agency and ends exactly 365 days later. Licensees are responsible for ensuring they do not exceed the 180–day limit within the one–year period and must apply for renewal 30 days prior to the expiration date of the one–year reciprocal recognition period. Out–of–state persons wishing to operate in the state in excess of 180 calendar days must obtain an Iowa radioactive materials license, which requires that the person have a permanent office in Iowa where records are maintained pertaining to licensed activities and where material can be stored, and must have at least one full–time employee and a telephone.

ITEM 10. Amend subrule 40.1(5) as follows:

40.1(5) All references to Code of Federal Regulations (CFR) in this chapter are those in effect on or before May 10, 2000 May 9, 2001.

ITEM 11. Amend paragraph 40.26(3)“a” as follows:

a. Demonstration of the need for and the expected duration of operations in excess of the limit in 40.13(1) 40.26(1); and

ITEM 12. Amend subrule 40.65(1), introductory paragraph, as follows:

40.65(1) Each licensee who expects to receive a package containing quantities of radioactive material in excess of a Type A quantity, as defined in 641-subrule 39.5(2) and Appendix E of 641-Chapter 39, shall make arrangements to receive:

ITEM 13. Amend paragraph 40.65(2)“b” as follows:

b. Monitor the external surfaces of a labeled³ package for radiation levels unless the package contains quantities of radioactive material that are less than or equal to the Type A quantity, as defined in 641-subrule 39.5(2) and Appendix E to 641-Chapter 39; and

ITEM 14. Amend paragraph 40.65(4)“b” as follows:

b. External radiation levels exceed the limits of 641- paragraph 39.5(15)“i” and 641-paragraph 39.5(15)“j.” 10 CFR 71.47 as set forth in rule 641-39.5(136C).