Pages 1435 to 1493 include ARC 0543B to ARC 0573B

Administrative rules review committee 1426

Schedule for rule making 1424

Publication procedures 1425

Administrative rules on CD–ROM 1425

Agency identification numbers 1433

CITATION OF ADMINISTRATIVE RULES 1423

Notice 1435

Notice, Violator programs, 20.18
ARC 0551B 1435

Notice, Waivers or variances from administrative
rules, ch 13 ARC 0573B 1436

Notice, Title V periodic monitoring guidance;
compliance assurance monitoring (CAM),
22.108(3) ARC 0572B 1437

Notice, General permit—dewatering and process
water discharge from mining and quarrying,
60.2, 60.3(2), 64.3(4), 64.4(2), 64.6(1),
64.15(5), 64.16(3) ARC 0568B 1437

Notice, Manure applicators—certification
and related fees, 65.1, 65.2(3), 65.15, 65.19
ARC 0569B 1439

Notice, Manure management plan—extension
of time for removal and application of manure
from a manure storage structure, 65.16(3)
ARC 0570B 1441

Filed, Fee refund for storm water general permit
coverage—pilot project, 64.16(4)
ARC 0571B 1479

Notice, Food stamp program—claims,
65.21 ARC 0543B 1442

Notice Terminated, Medicaid—price–based
case–mix system, amendments to chs 78 to
81 ARC 0546B 1443

Notice, Medicaid—reimbursement for local
education agency services, 78.50
ARC 0544B 1443

Notice, Ill and handicapped waiver—
increase in cap for total monthly cost of
services, 83.2(2)“b” ARC 0545B 1443

Notice, Review—founded child abuse reports
and criminal convictions, 107.4(5), 108.8(1),
108.9(4), 109.6(6), 110.7(3), 110.31, 113.13,
157.3(1), 170.4(3), 200.4(1) ARC 0548B 1444

Filed Emergency, Food stamp program—
increase in standard utility allowance,
65.8(1) ARC 0547B 1473

Notice, Coordination of benefits, ch 38
ARC 0554B 1451

Filed Emergency, ARNP registration—
on–line renewal, 7.2(8)“c” ARC 0560B 1473

Notice, IPERS, amendments to ch 21
ARC 0555B 1458

Filed Emergency, IPERS, amendments
to ch 21 ARC 0556B 1474

Notice, Waivers and variances, ch 16
ARC 0561B 1459

Notice, Nursing home administrators, ch 141;
rescind ch 142; 143.6, 143.10(4); chs 144, 145
ARC 0567B 1461

Summarized list 1429

Filed, Fire safety for bed and breakfast inns,
5.800 to 5.810, 5.820 ARC 0566B 1479

Filed, Sex offender registry, 8.303(2),
8.304(1) ARC 0549B 1480

Filed, Firefighter certification, ch 54
ARC 0565B 1481

Filed, Volunteer emergency services provider
death benefits, ch 59 ARC 0564B 1483

Filed Emergency, Temporary exemption from
sales tax on certain utilities; local option sales
tax exemption—metered gas and fuels,
17.37, 107.9 ARC 0558B 1477

Filed, Corporate activities not creating
taxability, 52.1(2) ARC 0559B 1484

Notice, Definition—Iowan in transition, 5.1
ARC 0550B 1466

Notice, Waivers or variances from
administrative rules, 3.17, ch 10
ARC 0562B 1466

Filed, Regions for substance abuse prevention
and treatment, ch 9 ARC 0563B 1484

Notice—Public funds interest rates 1468

Notice, Estimation and proration of natural
gas bills, 19.3(8), 19.10(3) ARC 0552B 1469

Filed, Natural gas marketer certification, 2.2,
19.13(6), 19.14 to 19.16 ARC 0553B 1485

Notice, Waiver or variance of rules, ch 14
ARC 0557B 1470

CITATION of Administrative Rules

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

441 IAC 79 (Chapter)

441 IAC 79.1(249A) (Rule)

441 IAC 79.1(1) (Subrule)

441 IAC 79.1(1)“a” (Paragraph)

441 IAC 79.1(1)“a”(1) (Subparagraph)

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

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

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

__________________________________

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

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

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

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

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

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

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

Fax: (515)281–4424

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

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

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

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

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

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

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

(Subscription expires June 30, 2001)

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

Department of General Services

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

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

TO: Administrative Rules Coordinators and Text Processors of State Agencies

FROM: Kathleen K. Bates, Iowa Administrative Code Editor

SUBJECT: Publication of Rules in Iowa Administrative Bulletin

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

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

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

bcarr@legis.state.ia.us

kbates@legis.state.ia.us

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

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

Containing: Iowa Administrative Code (updated through December 2000)
Iowa Administrative Bulletins (July 2000 through December 2000)
Iowa Court Rules (updated through December 2000)

For free brochures and order forms contact:

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

The Administrative Rules Review Committee will hold a special meeting on Friday, April 6, 2001, at 8 a.m. in Room 116,
State Capitol, Des Moines, Iowa. The following rules will be reviewed:

To All Agencies:

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

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

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

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

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

The following list will be updated as changes occur:

AGRICULTURE AND LAND STEWARDSHIP DEPARTMENT[21]

Agricultural Development Authority[25]

Soil Conservation Division[27]

ATTORNEY GENERAL[61]

AUDITOR OF STATE[81]

CITIZENS’ AIDE[141]

CIVIL RIGHTS COMMISSION[161]

COMMERCE DEPARTMENT[181]

Alcoholic Beverages Division[185]

Banking Division[187]

Credit Union Division[189]

Insurance Division[191]

Professional Licensing and Regulation Division[193]

Accountancy Examining Board[193A]

Architectural Examining Board[193B]

Engineering and Land Surveying Examining Board[193C]

Landscape Architectural Examining Board[193D]

Real Estate Commission[193E]

Real Estate Appraiser Examining Board[193F]

Savings and Loan Division[197]

Utilities Division[199]

CORRECTIONS DEPARTMENT[201]

Parole Board[205]

CULTURAL AFFAIRS DEPARTMENT[221]

Arts Division[222]

Historical Division[223]

ECONOMIC DEVELOPMENT, IOWA DEPARTMENT OF[261]

City Development Board[263]

Iowa Finance Authority[265]

EDUCATION DEPARTMENT[281]

Educational Examiners Board[282]

College Student Aid Commission[283]

Higher Education Loan Authority[284]

Iowa Advance Funding Authority[285]

Libraries and Information Services Division[286]

Public Broadcasting Division[288]

School Budget Review Committee[289]

ELDER AFFAIRS DEPARTMENT[321]

EXECUTIVE COUNCIL[361]

GENERAL SERVICES DEPARTMENT[401]

HUMAN RIGHTS DEPARTMENT[421]

Community Action Agencies Division[427]

Criminal and Juvenile Justice Planning Division[428]

Deaf Services Division[429]

Persons With Disabilities Division[431]

Latino Affairs Division[433]

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

Status of Women Division[435]

HUMAN SERVICES DEPARTMENT[441]

INFORMATION TECHNOLOGY DEPARTMENT[471]

INSPECTIONS AND APPEALS DEPARTMENT[481]

Employment Appeal Board[486]

Foster Care Review Board[489]

Racing and Gaming Commission[491]

State Public Defender[493]

LAW ENFORCEMENT ACADEMY[501]

MANAGEMENT DEPARTMENT[541]

Appeal Board, State[543]

City Finance Committee[545]

County Finance Committee[547]

NATURAL RESOURCES DEPARTMENT[561]

Energy and Geological Resources Division[565]

Environmental Protection Commission[567]

Natural Resource Commission[571]

Preserves, State Advisory Board[575]

PERSONNEL DEPARTMENT[581]

PUBLIC DEFENSE DEPARTMENT[601]

Emergency Management Division[605]

Military Division[611]

PUBLIC EMPLOYMENT RELATIONS BOARD[621]

PUBLIC HEALTH DEPARTMENT[641]

Substance Abuse Commission[643]

Professional Licensure Division[645]

Dental Examiners Board[650]

Medical Examiners Board[653]

Nursing Board[655]

Pharmacy Examiners Board[657]

PUBLIC SAFETY DEPARTMENT[661]

REGENTS BOARD[681]

Archaeologist[685]

REVENUE AND FINANCE DEPARTMENT[701]

Lottery Division[705]

SECRETARY OF STATE[721]

TRANSPORTATION DEPARTMENT[761]

Railway Finance Authority[765]

TREASURER OF STATE[781]

WORKFORCE DEVELOPMENT DEPARTMENT[871]

Labor Services Division[875]

Workers’ Compensation Division[876]

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

Pursuant to Iowa Administrative Code 361—subrule 12.2(1), the Executive Council gives Notice that the Civil Reparations Trust Fund balance as of February 23, 2001,was $378,870.17. Money in the Civil Reparations Trust Fund is available for use for indigent civil litigation programs or insurance assistance programs. Application forms are available in the office of the State Treasurer by contacting GeorgAnna Madsen, Administrative Secretary, Room 114, State Capitol, Des Moines, Iowa 50319; telephone (515)281–5368. Applications must be filed on the thirtieth day after the date of publication of this Notice in the Iowa Administrative Bulletin, or on the thirtieth day after the date affixed to the Notice sent by first–class mail, whichever is later. Any person or company that would like to receive future notices should make a request in writing to the above–mentioned contact. Rules regarding the Civil Reparations Trust Fund can be found at 361 IAC Chapter 12.

Pursuant to the authority of Iowa Code section 904.207, the Department of Corrections hereby gives Notice of Intended Action to amend Chapter 20, “Institutions Administration,” Iowa Administrative Code.

This amendment expands the violator program to include up to 150 beds for male youthful offenders in the Redirecting Inmate Values, Energy, Relationships and Skills (RIVERS) program at the Fort Dodge Correctional Facility.

Any interested person may present written suggestions or comments on the proposed amendment on or before April 10, 2001. Such written materials should be sent to the Director of Policy and Legal Services, Corrections Department, 420 Watson Powell Jr. Way, Des Moines, Iowa 50309.

There will be a public hearing on April 10, 2001, from 11 a.m. to 1 p.m. in the Second Floor Conference Room, 420 Watson Powell Jr. Way, Des Moines, Iowa 50309, at which time persons may present their views either orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of the amendment.

Persons who intend to attend the public hearing and have special requirements should contact the Department of Corrections and advise of special needs.

This amendment is intended to implement Iowa Code section 904.207.

The following amendment is proposed.

Amend rule 201—20.18(904) as follows:

201—20.18(904) Violator programs. The department of corrections provides violator/shock probation programs at two three institutions: 30 female beds for females at the Iowa correctional institution for women (ICIW) at Mitchellville, and 80 male beds for males at the correctional release center (CRC) at Newton, and up to 150 beds for male youthful offenders in the RIVERS program at the Fort Dodge correctional facility (FDCF). These programs provide up to a six–month confinement intensive intervention for probation, parole, and work release offenders that have violated conditions of supervision and would otherwise have been returned to or sent to prison. Additionally, offenders sentenced to the custody of the department of corrections that have been identified as potential shock probation candidates are eligible for program participation.

20.18(1) The violator/shock probation programs provide up to a six–month intensive, highly structured treatment program designed to divert certain offenders from long–term incarceration.

20.18(2) Definitions.

“Violator” means probationer, parolee, or work releasee not having community status revoked but found to have violated conditions of supervision by the appropriate jurisdiction having statutory authority to revoke.

20.18(3) Offenders will be committed to a violator/shock probation program pursuant to Iowa Code section sections 904.207, 902.4 and 903.2.

20.18(4) All probation offenders committed to a violator/shock probation program shall be admitted to the Iowa medical and classification center (IMCC) reception unit. Upon admittance to IMCC, the transporting authority shall provide the receiving officer with a court order disposing of the violation (including commitment to the custody of the director and stating violator program participation is a condition of probation), mittimus, case origination documents, indictment or information documents, minutes of testimony, and judgment entry.

20.18(5) All parole or work release offenders committed to a violator/shock probation program shall enter the program through the IMCC reception unit.

The violator/shock probation program shall be a condition of release, and the offender will remain in the custody of the department of corrections under the terms of the offender’s original commitment.

20.18(6) Admission standards.

a. Reception process at IMCC, including medical intake screen, will normally be completed within seven days.

b. If further medical testing or treatment is necessary, transfer to the violator/shock probation program may be delayed until additional testing or treatment is completed and the offender’s health status permits transfer.

c. The department may deny admission to a violator/shock probation program if the offender is medically unable to complete the program or if an offender’s mental health status prohibits participation.

d. Offenders will not be allowed any personal property with the exception of clothing being worn at the time of admission to the IMCC reception unit. Other property will not be accepted by the IMCC receiving officer.

20.18(7) Release standards.

a. Upon successful completion of a violator/shock probation program, violator offenders will be referred to the sending or supervising judicial district department of correctional services.

b. An A violator offender that does not successfully complete the violator program will be referred returned to the sending or supervising judicial district department of correctional services for disposition, with the exception of parole or work release offenders as reviewed by the board of parole.

c. Shock probation offenders will be referred for sentence review to the sentencing court upon successful orunsuccessful completion of a violator/shock probationprogram. The department of corrections will submit a report to the court that provides a full accounting of the shock probation offender’s program participation, progress and recommended plan of action.

20.18(8) An offender placed in a violator/shock probation program will not be granted all the privileges and rights or may not be subject to certain requirements established in Iowa Administrative Code 201—Chapter 20. The following paragraphs establish which rules of Iowa Administrative Code 201—Chapter 20 that violators will or will not be subject to:

a. Rule 20.1(904)—Application of rules. Will not apply to violator/shock probation programs except as otherwise stated.

b. Rule 20.2(904)—Title II definitions. Will apply only where listed in the following applicable rules.

c. Rule 20.3(904)—Visits to inmates offenders. Offenders will not be allowed visits except individuals determined by staff and only in conjunction with participation in thefamily treatment component. Attorney and clergy visits must be scheduled in advance so as to not conflict withprogram schedules. Exceptions may be authorized by the warden/superintendent or designee.

d. Rule 20.4(904)—Mail. Offenders will be allowed mail privileges pursuant to rule 20.4(904) with the following exceptions:

(1) There will be no limit on the amount of incoming mail although program policy may limit the amount of mail that can be stored or maintained in the living area.

(2) Offenders will not receive an allowance and will not be allowed to receive outside source moneys. Therefore, offenders will be provided writing materials and postage for two letters per week.

(3) Packages and publications will not be allowed.

e. Rule 20.5(904)—Gifts to inmates Money orders/cashier’s checks for offenders. Offenders will not be granted any of the privileges of rule 20.5(904).

f. Rule 20.6(904)—Publications. Offenders will not be granted any of the privileges or rights of rule 20.6(904).

g. Rule 20.7(904)—Interviews and statements. This rule may apply only as stated “with prior consent of the warden, superintendent, or designee.”

h. Rule 20.8(904)—Guests of institution. This rule is not applicable since this rule has no impact on the violator/shock probation program.

i. Rule 20.9(904)—Donations. This rule is not applicable since this rule has no impact on the violator/shock probation program.

j. Rule 20.11(904,910)—Restitution. This rule will be temporarily suspended while offenders are in the program. Restitution plans will be maintained, and the plan of payment will be reinstated upon release from the program.

k. Rule 20.12(904)—Furloughs. This rule will only apply in family emergency situations in accordance with 20.12(5)“a” and 20.12(6)“a,” although the criteria for eligibility are waived, and these furloughs will only be granted at the discretion of the warden/superintendent or designee with approval of the regional deputy director.

l. Rule 20.13(904)—Board of parole interviews. This rule is not applicable since this rule has no impact on theviolator/shock probation program.

m. Rule 20.15(910A)—Victim notification. This rule will not apply to the violator/shock probation program.

n. Rule 20.17(904)—Institutional community placement. This rule will not apply to the violator/shock probation program.

20.18(9) Good conduct Earned time.

a. Iowa Code chapter 903A will not apply to probationers and parolees.

b. Iowa Code chapter 903A will apply to work releasees in accordance with work release policies and procedures.

20.18(10) Clothing, transportation, and release moneys. The provisions of Iowa Code section 906.9 will not apply to violator/shock probation programs.

20.18(11) Any exceptions to these rules must be specifically approved by the warden/superintendent or designee.

This rule is intended to implement Iowa Code section 904.207.

Pursuant to the authority of Iowa Code sections 17A.3 and 455A.6, the Environmental Protection Commission hereby gives Notice of Intended Action to adopt a new Chapter 13, “Waivers or Variances from Administrative Rules,” Iowa Administrative Code.

The purpose of this rule making is to adopt waiver rules to implement Iowa Code section 17A.9A and Executive Order Number 11, signed by Governor Vilsack on September 14, 1999. The proposed action is to adopt by reference the currently proposed new 561—Chapter 10, “Waivers or Variances from Administrative Rules.” Notice of Intended Action proposing 561—Chapter 10 was published in the Iowa Administrative Bulletin as ARC 0495B on February 21, 2001.

Any interested persons may make written suggestionsor comments regarding the proposed rules on or before April 10, 2001. Written comments should be directed to AnnePreziosi, Department of Natural Resources, Air Quality Bureau, 7900 Hickman Road, Urbandale, Iowa 50322; telephone (515)281–6243; fax (515)242–5094. Requests for a public hearing regarding this rule making must be submitted in writing to the above address by that date.

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

The following new chapter is proposed.

CHAPTER 13
WAIVERS OR VARIANCES
FROM ADMINISTRATIVE RULES

567—13.1(17A) Adoption by reference. The commission adopts by reference 561—Chapter 10, Iowa Administrative Code, provided that the word “commission” is substituted for “department” throughout.

567—13.2(17A) Report to commission. The director shall submit reports of decisions regarding requests for waivers or variances to the commission at its regular meetings.

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

Pursuant to the authority of Iowa Code section 455B.133, the Environmental Protection Commission hereby gives Notice of Intended Action to amend Chapter 22, “Controlling Pollution,” Iowa Administrative Code.

Item 1 incorporates the Department’s existing Title V Periodic Monitoring Guidance into the rule and allows the option for facilities to submit their own periodic monitoring plan. Periodic monitoring is required by 40 CFR Parts 70.6 and 71.6 where the applicable requirement does not require periodic testing or instrumental or noninstrumental monitoring.

Item 2 adopts by reference 40 CFR Part 64 Compliance Assurance Monitoring (CAM) for major stationary sources of air pollution that are required to obtain operating permits under Title V of the Clean Air Act. The fundamental requirements of CAM are to: (a) monitor compliance in a manner that is sufficient to yield data that provide a reasonable assurance of compliance and allow an owner or operator to make an informed certification of compliance; (b) take necessary corrective actions in response to the monitoring data; (c) report on the results of such monitoring; and (d) maintain records of such monitoring.

Any person may make written suggestions or comments on the proposed amendments on or before May 4, 2001. Written comments should be directed to Corey McCoid, Iowa Department of Natural Resources, Air Quality Bureau, 7900 Hickman Road, Suite 1, Urbandale, Iowa 50322, fax (515)242–5094, or by electronic mail to corey.mccoid@ dnr.state.ia.us. Copies of the Periodic Monitoring Guidance are available from the Bureau upon request or on the Department’s Web site http://www.state.ia.us/dnr/organiza/epd/airoper/aqoper.htm.

A public hearing will be held on April 27, 2001, at 1 p.m. in Conference Rooms 2 through 4 at DNR’s Air Quality Bureau office located at 7900 Hickman Road, Urbandale, Iowa, at which time comments may be submitted orally or in writing. All comments must be received no later than May 4, 2001.

Any persons who intend to attend the public hearing and have special requirements such as hearing or mobility impairments should contact Corey McCoid at (515)281–6061 to advise of any specific needs.

These amendments are intended to implement Iowa Code section 455B.133.

The following amendments are proposed.

ITEM 1. Amend paragraph 22.108(3)“b” as follows:

b. Where the applicable requirement does not require periodic testing or instrumental or noninstrumental monitoring (which may consist of record keeping designed to serve as monitoring), periodic monitoring sufficient to yield reliable data from the relevant time period that are representative of the source’s compliance with the permit, as reported pursuant to subrule 22.108(5). Such monitoring requirements shall be as specified in the “Periodic Monitoring Guidance” available from the department or a periodic monitoring plan may be submitted to the department for approval ensure use of terms, test methods, units, averaging periods, and other statistical conventions consistent with the applicable requirement. Record–keeping provisions may be sufficient to meet the requirements of this rule; and

ITEM 2. Amend subrule 22.108(3), paragraph “c” and add a new paragraph “d” as follows:

c. As necessary, requirements concerning the use, maintenance, and, where appropriate, installation of monitoring equipment or methods.; and

Pursuant to the authority of Iowa Code section 455B.173, the Environmental Protection Commission hereby gives Notice of Intended Action to amend Chapter 60, “Scope of Title—Definitions—Forms—Rules of Practice,” and Chapter 64, “Wastewater Construction and Operation Permits,” Iowa Administrative Code.

These amendments adopt by reference a new generalpermit for dewatering and process water discharge frommining and quarrying operations. Iowa Code subsection 455B.173(12) allows the Commission to adopt general permits that will cover numerous facilities to the extent they are representative of a class of facilities that can be identified and conditioned by a single permit. The primary water quality concerns with discharges from mining and quarrying operations relate to suspended solids and pH. Therefore, a general permit with limits for those parameters and associated monitoring/reporting requirements will be protective of water quality. Under the terms of the general permit rule, the Department of Natural Resources could require an individual discharge permit if it was determined that the general permit was not protective enough or would cause violations of state water quality standards.

The definition of “general permit” found in Chapter 60 is also being changed to conform with existing statute. In addition, some extraneous language is being eliminated and corrections are being made. Under present general permit rules, the information needed for a complete application is listed for each type of general permit. Inasmuch as the information required is clearly identified on the application forms, and the forms are rule–referenced documents, the item–by–item listing of the information is not needed. The public notice provisions for General Permits Nos. 1, 2, and 3 are also being consolidated and language relating to General Permit No. 3 is being added to Chapter 60.

Copies of the General Permit for Mining and Quarrying Operations may be obtained from the Administrative Rules Coordinator or through the Department’s records section.

Any interested party may make written comments on the proposed amendments on or before April 10, 2001. Written comments should be directed to Steve Williams, Iowa Department of Natural Resources, 502 E. 9th Street, Des Moines, Iowa 50319; fax (515)281–8895; telephone (515) 281–8884; E–mail steve.williams@dnr.state.ia.us.

A public hearing will be held on April 10, 2001, at 1 p.m. in the Wallace State Office Building Auditorium, 502 E. 9th Street, Des Moines, Iowa, to take oral testimony or accept written comments.

Anyone who plans to attend the public hearing and has special requirements such as hearing or mobility impairments should contact the Department at the address or telephone number listed above and advise of the special needs.

These amendments are intended to implement Iowa Code chapter 455B, division I.

The following amendments are proposed.

ITEM 1. Amend rule 567—60.2(455B), definition of “general permit,” as follows:

“General permit” means an NPDES permit issued to a class of facilities which could be conditioned and described by a single permit. DNR’s statutory authority for general permits is restricted to storm water discharges pursuant to Iowa Code section 455B.103A.

ITEM 2. Amend subrule 60.3(2), paragraph “i,” and adopt new paragraph “k” as follows:

i. Notice of Intent for Coverage Under Storm Water NPDES General Permit No. 1 “Storm Water Discharge Associated with Industrial Activity” or General Permit No. 2 “Storm Water Discharge Associated with Industrial Activity for Construction Activities” or General Permit No. 3 “Storm Water Discharge Associated with Industrial Activity from Asphalt Plants, Concrete Batch Plants, Rock Crushing Plants and Construction Sand and Gravel Facilities” 542–1415.

k. Notice of Intent for Coverage Under NPDES General Permit No. 5 “Discharge from Mining and Processing Facilities” 542–4006.

ITEM 3. Amend paragraph 64.3(4)“b” by adopting the following new subparagraph (6):

(6) For any discharge, except a storm water only discharge, from a mining or processing facility after the effective date of this rule.

ITEM 4. Amend paragraph 64.4(2)“a” by adopting the following new subparagraph (3):

(3) For any discharge, except a storm water only discharge, from a mining or processing facility.

ITEM 5. Amend subrule 64.6(1) as follows:

64.6(1) Contents of a complete Notice of Intent. An applicant proposing to conduct activities covered by a general permit shall file a complete Notice of Intent by submitting to the department materials required in paragraphs “a” to “c” of this subrule.

a. Notice of Intent Application Form. The following Notice of Intent forms must be completed for the corresponding general permit in full.

(1) General Permit No. 1 “Storm Water Discharge Associated with Industrial Activity,” Form 542–1415, containing the following information.

(2) General Permit No. 2 “Storm Water Discharge Associated with Industrial Activity for Construction Activities,” Form 542–1415, containing the information identified for General Permit No. 1 in subparagraph (1) of this paragraph.

(3) General Permit No. 3 “Storm Water Discharge Associated with Industrial Activity from Asphalt Plants, Concrete Batch Plants, Rock Crushing Plants and Construction Sand and Gravel Facilities,” Form 542–1415, containing the information identified for General Permit No. 1 in subparagraph (1) of this paragraph.

(4) General Permit No. 4 “Discharge from On–Site Wastewater Treatment and Disposal Systems,” Form 542–1541. , containing the following information:

b. General permit fee. The general permit fee according to the schedule in 64.16(455B) payable to the Department of Natural Resources.

c. Public notification. The following public notification requirements must be completed for the corresponding general permit.

(1) General Permit Permits No. 1, “Storm Water Discharge Associated with Industrial Activity.” No. 2 and No. 3. A demonstration that a public notice was published in at least two newspapers with the largest circulation in the area in which the facility is located or the activity will occur. If a facility or activity authorized by General Permit No. 3 is to be relocated to a site not included in the original notice, a public notice need be published in only one newspaper. The newspaper notices shall, at the minimum, contain the following information:

PUBLIC NOTICE OF STORM WATER DISCHARGE

The (applicant name) plans to submit a Notice of Intent to the Iowa Department of Natural Resources to be covered under NPDES General Permit (select the appropriate general permit—No. 1 “Storm Water Discharge Associated with Industrial Activity” or General Permit No. 2 “Storm Water Discharge Associated with Industrial Activity for Construction Activities”). The storm water discharge will be from (description of industrial activity) located in (¼ section, township, range, county). Storm water will be discharged from (number) point source(s) and will be discharged to the following streams: (stream name(s)).

Comments may be submitted to the Storm Water Discharge Coordinator, IOWA DEPARTMENT OF NATURAL RESOURCES, Environmental Protection Division, 900 E. Grand Avenue, Des Moines, IA 50319–0034. The public may review the Notice of Intent from 8 a.m. to 4:30 p.m., Monday through Friday, at the above address after it has been received by the department.

(4) (2) General Permit No. 4 “Discharge from On–Site Wastewater Treatment and Disposal Systems.”. There are no public notification requirements for this permit.

ITEM 6. Amend rule 567—64.15(455B) by adding the following new subrule which adopts a new general permit for mining and quarrying operations:

64.15(5) “Discharge from Mining and Processing Facilities,” NPDES General Permit No. 5, effective _________.

ITEM 7. Amend paragraph 64.16(3)“a” by adopting the following new subparagraph (5):

(5) “Discharge from Mining and Processing Facilities,” NPDES General Permit No. 5. No fees shall be assessed.

Pursuant to the authority of Iowa Code section 455B.200, the Environmental Protection Commission hereby gives Notice of Intended Action to amend Chapter 65, “Animal Feeding Operations,” Iowa Administrative Code.

The proposed amendments add several provisions pertaining to certification and related fees for manure applicators, including implementation of statutory provisions which exempt certain family members from payment of the confinement site manure applicator certification fee. The proposed amendments would also convert differential expiration dates for manure applicator certificates to a uniform date, add four lakes as major water sources and make editorial corrections.

The proposed amendments also change the definition of “freeboard” to allow for the gravity unloading of an aboveground manure storage tank provided the tank is equipped with redundant valves and barricades, and an emergency response plan is available on site.

These amendments have been reviewed by the Animal Agriculture Consulting Organization.

Any interested person may make written suggestions or comments on the proposed amendments on or before April 24, 2001. Written comments should be directed to Karen Grimes, Iowa Department of Natural Resources, Wallace State Office Building, 502 E. 9th Street, Des Moines, Iowa 50319–0034; fax (515)281–6794.

Also, there will be a public hearing on April 24, 2001, at 10 a.m. in the Fourth Floor Conference Room of the Wallace State Office Building at which time persons may present their views either orally or in writing. At the hearing people will be asked to give their names and addresses for the record and to confine their remarks to the subject of the amendments.

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

These amendments are intended to implement Iowa Code section 455B.203A.

The following amendments are proposed.

ITEM 1. Amend rule 567—65.1(455B) by inserting the following new definition in alphabetical order and amending the definition of “freeboard.”

“Freeboard” means the difference in elevation between the liquid level and the top of the lowest point of animal feeding operation structure’s berm or the lowest external outlet from a formed manure storage structure. However, for a formed manure storage structure meeting the requirements of 65.15(20), “freeboard” means the difference in elevation between the liquid level and the structure’s overflow level.

ITEM 2. Amend paragraph 65.2(3)“b” as follows:

b. Manure shall be removed from the control facilities as necessary to prevent overflow or discharge of manure from the facilities. Manure stored in earthen unformed manure storage structures (anaerobic lagoons, earthen manure storage basins, or earthen waste slurry storage basins) shall be removed from the structures as necessary to maintain a minimum of two feet of freeboard in the structure, unless a greater level of freeboard is required to maintain the structural integrity of the structure or prevent manure overflow. Manure stored in unroofed formed manure storage structures shall be removed from the structures as necessary to maintain a minimum of one foot of freeboard in the structure unless a greater level of freeboard is required to maintain the structural integrity of the structure or prevent manure overflow.

ITEM 3. Amend paragraph 65.15(13)“d” as follows:

d. Initial lagoon loading. Prior to the discharge of any manure to the anaerobic lagoon, the lagoon shall be filled to a minimum of 50 percent of its minimum design stabilization volume with fresh water.

ITEM 4. Amend subparagraphs 65.15(13)“e”(1) and (2) as follows:

(1) For single cell lagoons or multicell lagoons without a site–specific lagoon operation plan. The total volume of fresh water for dilution added to the lagoon annually shall equal one–half the minimum design stabilization volume. At all times, the amount of fresh water added to the lagoon shall equal or exceed the amount of manure discharged to the lagoon.

(2) For a two or three cell anaerobic lagoon. The manure and water content of the anaerobic lagoon may be managed in accordance with a site–specific lagoon operation plan approved by the department. The lagoon operation plan must describe in detail the operational procedures and monitoring program to be followed to ensure proper operation of the lagoon. Operational procedures shall include identifying the amounts and frequencies of planned additions of manure, fresh water and recycle water, and amount and frequencies of planned removal of solids and liquids. Monitoring information shall include locations and intervals of sampling, specific tests to be performed, and test parameter values used to indicate proper lagoon operation. As a minimum, annual sampling and testing of the first lagoon cell for electrical conductivity (EC) and either chemical oxygen demand (COD) or total ammonia (NH4–N) (NH3 + NH4) shall be required.

ITEM 5. Amend rule 567—65.15(455B) by adopting the following new subrule:

65.15(20) Aboveground formed manure storage structures with external outlet or inlet below the liquid level. A formed manure storage structure which is constructed to allow the storage of manure wholly or partially above ground and which has an external outlet or inlet below the liquid level shall have all of the following:

a. Two or more shutoff valves on any external outlet or inlet below the liquid level. At least one shutoff valve shall be located inside the structure and be operable if the external valve becomes inoperable or broken off.

b. All external outlets or inlets below the liquid level shall be barricaded, encased in concrete, or otherwise protected to minimize accidental destruction.

c. Construction shall be in compliance with the manufacturer’s requirements.

d. An emergency response plan for retaining manure at the site and cleanup if the manure storage structure fails or there is any other type of accidental discharge. The plan shall consist of telephone numbers to comply with 65.2(9) and list of contractors, equipment, equipment technical support, and alternative manure storage or land application sites which can be used during inclement weather.

ITEM 6. Amend rule 567—65.19(455B) by adopting the following new subrule 65.19(2) and renumbering subrules 65.19(2) to 65.19(10) as 65.19(3) to 65.19(11):

65.19(2) Certification fees.

a. Commercial manure applicator. The fee for a new or renewed certification is $50. However, for the 2002 certification year only, the fee is $25 for a commercial manure applicator whose expiration or renewal date includes or is between January 1 and June 30.

b. Confinement site manure applicator. The fee for a new or renewed certification is $50. However, the fee is not required if all the following apply:

(1) The person indicates that the person is a family farm member as defined in this chapter by submitting a completed form provided by the department;

(2) The person is certified as a confinement site manure applicator within one year of the date another family farm member was certified or whose certification as a confinement site manure applicator was renewed;

(3) The other family farm member certified as a confinement site manure applicator has paid the certification fee.

c. Late fee. Renewal applications received after March 1 are required to pay an additional $12.50 before the certification is renewed. An application is considered to be received on the date it is postmarked.

d. Duplicate certificate. The fee for a duplicate certificate is $15.

ITEM 7. Rescind subrule 65.19(3) and adopt the following new subrule in lieu thereof:

65.19(3) Certification term, renewal and grace period.

a. Certification term. Certification for a commercial manure applicator shall be for a period of one year and shall expire on December 31 of each year. Certification for a confinement site manure applicator shall be for a period of three years and shall expire on December 31 of the third year. After June 30, 2001, the expiration dates of all certifications that currently expire on a date other than December 31 are automatically extended to December 31 of the year the certification expires.

b. Renewal. Application for renewal of a certification must be received by the department or postmarked no later than March 1 after the year the certification expires. Application shall be on forms provided by the department and shall include:

(1) Certification renewal fee.

(2) A passing grade on the certification examination or proof of attending the required hours of continuing instructional courses.

c. Grace period. Except as provided in this paragraph, a commercial manure applicator or a confinement site manure applicator may not continue to apply manure after expiration of a certificate. A commercial manure applicator or a confinement site manure applicator may continue to apply manure until March 1 following the year the certification expires, provided a complete renewal application, as provided in paragraph “b,” is postmarked or received by the department prior to March 1.

ITEM 8. Amend subrule 65.19(5) by rescinding paragraphs “c” and “d.”

ITEM 9. Amend subrule 65.19(6), paragraph “b,” subparagraph (1), as follows:

(1) A part–time employee or family member of a confinement site manure applicator and is acting under direct instruction and control of a certified confinement site manure applicator who is physically present at the manure application site by being in sight or hearing distance of the supervised person where the certified confinement site manure applicator can physically observe and communicate with the supervised person at all times.

ITEM 10. Amend Chapter 65, Appendix A, first unnumbered paragraph, as follows:

Introduction: Water pollution control requirements for animal feeding operations are given in Chapter 65 of the rulesof the Iowa department of natural resources. Under these rules, open feedlots meeting the operation permit application requirements of subrules 65.3(1) or 65.3(2) rule 567— 65.4(455B) must also comply with the minimum manure control requirements of subrule 65.2(2). Subrule 65.2(2) requires that all feedlot runoff and other manure flows resulting from precipitation events less than or equal to the 25–year, 24–hour rainfall event be collected and land applied.

ITEM 11. Amend Chapter 65, Appendix A, third unnumbered paragraph, as follows:

A feedlot operator who constructs and operates a manure control facility in accordance with the requirements of any of these five systems will not have additional manure control requirements imposed, unless manure discharges from the facility cause state water quality standards violations. In describing the five systems, the major features of each are first reviewed, followed by detailed information on the construction and operation requirements of the system. The system descriptions are presented in this appendix as follows:

System Pages

System 1: One Manure Application Period
Per Year 2–3 33–35

System 2: July and November Manure
Application 4–5 35–37

System 3: April, July, and November Manure
Application 6–7 37–39

System 4: Application After Each Significant
Precipitation Event 8–9 39–41

System 5: April/May and October/November
Manure Application 10–11 41–43

Figures 1–4 12–13 44–45

ITEM 12. Amend Chapter 65, Appendix A, System 1, Detailed System Requirements, paragraph 2A, as follows:

A. The volume determined by multiplying the paved unpaved feedlot area which drains into the control system by the appropriate runoff value from Figure 1.

ITEM 13. Amend Chapter 65, Appendix B, Table 1, Calhoun County, as follows:

ITEM 14. Amend Chapter 65, Appendix B, Table 2, Appanoose and Webster Counties, and add Muscatine County as follows:

ITEM 15. Amend Chapter 65, Appendix B, Tables 3 and 5, first column under “Swine” heading, by striking “Dry feed” and “Wet/dry feed” and inserting in lieu thereof “Dry feeders” and “Wet/dry feeders” respectively.

Pursuant to the authority of Iowa Code section 455B.200, the Environmental Protection Commission hereby gives Notice of Intended Action to amend Chapter 65, “Animal Feeding Operations,” Iowa Administrative Code.

This amendment would extend until July 1, 2002, the period during which the owner of a confinement feeding operation may remove and apply manure from a manure storage structure in accordance with a manure management plan that has been submitted to, but not yet approved by, the Department of Natural Resources. This amendment was Adopted and Filed Emergency in the December 13, 2000, Iowa Administrative Bulletin as ARC 0348B, but an objection by the Administrative Rules Review Committee on January 9, 2001, will result in a termination of that filing on July 8, 2001.

Any interested person may make written suggestions or comments on the proposed amendment on or before April 24, 2001. Written comments should be directed to Amy Rossow, Iowa Department of Natural Resources, Wallace State Office Building, 502 E. 9th Street, Des Moines, Iowa 50319–0034; fax (515)281–8895.

Also, there will be a public hearing on April 24, 2001, at 10 a.m. in the Fourth Floor Conference Room of the Wallace State Office Building at which time persons may present their views either orally or in writing. At the hearing people will be asked to give their names and addresses for the record and to confine their remarks to the subject of the amendment.

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

This amendment is intended to implement Iowa Code section 455B.203.

The following amendment is proposed.

Rescind subrule 65.16(3) and adopt in lieu thereof the following new subrule:

65.16(3) Manure shall not be removed from a manure storage structure, which is part of a confinement feeding operation required to submit a manure management plan, until the department has approved the plan. As an exception to this requirement, until July 1, 2002, the owner of a confinement feeding operation may remove and apply manure from a manure storage structure in accordance with a manure management plan which has been submitted to the department, but which has not been approved within the required 60–day period. Manure shall be applied in compliance with rule 65.2(455B).

Pursuant to the authority of Iowa Code section 234.6, the Department of Human Services proposes to amend Chapter 65, “Administration,” appearing in the Iowa Administrative Code.

The food stamp program is based on federal regulations and statute. The Department adopts administrative rules for the food stamp program only when the state is given an option in the regulations on how to administer the program or when regulations have not been finalized to implement statute.

These amendments implement final federal regulations issued July 6, 2000, to be effective August 1, 2001. Those regulations incorporate changes regarding food stamp recipient claims. Food stamp recipient claims are established and collected against households that receive more benefits than they are entitled to receive.

The regulations published July 6, 2000, include the following provisions which the Department had previously adopted and implemented using administrative rules. These rules will be rescinded as policy is now contained in the regulations. The regulations:

• Provide that the earned income deduction shall not be allowed when a claim is calculated to determine an overissuance caused by the failure of a household to timely report earned income (subrule 65.21(5)).

• Provide that all claims for overissued food stamps can be collected by allotment reduction. Individuals not participating in the food stamp program who are 180 days delinquent in repaying their overissuance will be subject to collection action through the treasury offset program (subrule 65.21(6)).

The July 6, 2000, regulations also make the following revisions to policy:

• Change the time frames for establishing claims. Claims shall be established before the last day of the quarter following the quarter in which the overissuance or trafficking incident was discovered.

• Establish the amount of the claim for trafficking–related overissuances. Claims will be established for the value of the trafficked benefits as determined by the individual’s admission, adjudication, or the documentation that forms the basis for the trafficking determination. Current policy does not include trafficking claims.

• Provide an additional source of collection. Claims can now also be collected from active, stale, or expunged electronic benefit transfer (EBT) benefits with the recipient’s permission.

• Require additional information be added to the demand letters that are sent to recipients for whom an overissuance or trafficking claim has been established. These regulations require information regarding the treasury offset program and calculation of the claim.

The Department is currently seeking a waiver to permit the Department to deviate from the requirement to include the calculation of the claim with the demand letters. In anticipation of Food and Nutrition Services approval of this waiver, the Department is proposing to include a statement on the first demand letter informing the household how to obtain a copy of the claim calculation.

These amendments do not provide for waiver in specified situations because federal food stamp law does not allow for any waivers.

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 April 11, 2001.

These amendments are intended to implement Iowa Code section 234.12.

The following amendments are proposed.

ITEM 1. Amend subrule 65.21(4) as follows:

65.21(4) Demand letters. Households which that have food stamp claims shall return the repayment agreement no later than 20 days after the date the demand letter is mailed. For agency error and inadvertent household error, households which that do not return the repayment agreement by the due date or do not timely request an appeal, allotment reduction shall occur with the first allotment issued after the expiration of the Notice of Adverse Action time period. For intentional program violation, households which that do not return the repayment agreement by the due date, allotment reduction shall occur with the next month’s allotment.

ITEM 2. Rescind and reserve subrules 65.21(5) and 65.21(6).

Pursuant to the authority of Iowa Code section 249A.4,the Department of Human Services hereby terminates rule–making proceedings under the provisions of Iowa Code section 17A.4(1)“b” for amendments to 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,” Iowa Administrative Code.

Notice of Intended Action was published in the Iowa Administrative Bulletin on February 7, 2001, as ARC 0441B.

The Notice proposed a price–based case–mix system for reimbursing non–state–owned nursing facilities for Medicaid recipients based on a uniform standard statewide price.

The Department is terminating rule making at this time at the direction of the General Assembly.

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,” appearing in the Iowa Administrative Code.

This proposed amendment changes the age at which Medicaid can reimburse the local education agencies for medical services for children from under the age of 23 to under the age of 21.

The Health Care Financing Administration has notified the Department that all school–based services must be placed in the State Plan under the provision of the Early and Periodic Screening, Diagnosis and Treatment Program. The Early and Periodic Screening, Diagnosis and Treatment Program limits eligibility to age 20 and under.

Local education agencies have been made aware of this limitation on Medicaid funding. The Individuals with Disabilities Education Act may require the local education agencies to continue to provide services to children at the local education agencies’ own expense until the children reach the age of 23.

This amendment does not provide for waivers in specified situations because it conforms the Medicaid program to federal requirements.

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 April 11, 2001.

This amendment is intended to implement Iowa Code section 249A.4.

The following amendment is proposed.

Amend rule 441—78.50(249A), introductory paragraph, as follows:

441—78.50(249A) Local education agency services. Subject to the following subrules, payment shall be made for medical services provided by local education agency services providers to Medicaid–eligible individuals under the age of 23 21.

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

This amendment increases the cap for the total monthly cost of services for persons needing the nursing level of care under the ill and handicapped waiver from $852 per month to $1,052 per month.

An additional $141,917 in state funding has been included in the Medicaid budget for the next fiscal year to implement this increase. This increase makes the cap for persons needing the nursing level of care on the ill and handicapped waiver match the cap for the same level of care on the elderly waiver.

This amendment does not provide for a waiver in this situation because this change is advantageous to the consumer. Individuals may request a waiver of the cap under the Department’s general rule on exceptions at rule 441—1.8(17A, 217).

Consideration will be given to all written data, views, and arguments thereto received by the Office of Policy Analysis, Department of Human Services, Hoover State Office Building, Des Moines, Iowa 50319–0114, on or before April 11, 2001.

This amendment is intended to implement Iowa Code section 249A.4.

The following amendment is proposed.

Amend subrule 83.2(2), paragraph “b,” as follows:

b. The total monthly cost of the ill and handicapped waiver services shall not exceed the established aggregate monthly cost for the level of care as follows:

Pursuant to the authority of Iowa Code sections 234.6, 237.3, 237A.12, 238.16, and 600.22, the Department of Human Services proposes to amend Chapter 107, “Certification of Adoption Investigators,” Chapter 108, “Licensing and Regulation of Child–Placing Agencies,” Chapter 109, “Child Care Centers,” Chapter 110, “Family and Group Child Care Homes,” Chapter 113, “Licensing and Regulation of Foster Family Homes,” Chapter 157, “Purchase of Adoption Services,” Chapter 170, “Child Care Services,” and Chapter 200, “Adoption Services,” appearing in the Iowa Administrative Code.

These amendments revise the procedures for reviewing founded child abuse reports and criminal convictions in reference to the following parties:

• Persons requesting to be certified as adoption investigators.

• Persons wanting to be licensed as foster family homes or to be approved as adoptive parents by the Department or by a child–placing agency.

• Agencies or individuals wanting to be licensed as child care centers.

• Persons wanting to be registered to provide family or group child care.

• Nonregistered family child care homes wanting to receive public funds for providing child care for clients of the Department.

Currently, Central Office is required to review all founded child abuse reports, aggravated misdemeanors and felony convictions, and all simple or serious misdemeanors less than five years old to determine if the abuse or crime warrants prohibition of approval of registration or license. This process may add up to 30 days to the evaluation process.

These changes allow the regional administrator or designee to make the final evaluation decisions for a person wanting to be licensed as a foster family home by the Department or a child–placing agency, an agency or individual wanting to be licensed as a child care center or registered as a family or group child care home, nonregistered family child care homes wanting to receive public funds for providing child care for clients of the Department, and persons wanting to be approved as adoptive parents for whom the Department conducts the home study.

The process continues to require Central Office to make the final evaluation decisions for persons wanting to be certified as adoption investigators and for persons wanting to be approved as adoptive parents for whom a child–placing agency conducts the home study.

Allowing final decisions to be made at the regional level will decrease the length of time an individual or agency must wait before receiving approval or denial of the certification or licensure process.

These amendments also require that sex offender registry checks be made on these persons and agencies, and correct form names and legal references.

These amendments do not provide for waivers in specified situations because these changes confer a benefit on persons wanting to be certified or licensed by decreasing the length of time and the number of steps required for completing and approving or denying a record check evaluation. It is not appropriate to provide a waiver for checking the sex offender registry.

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 April 11, 2001.

These amendments are intended to implement Iowa Code section 234.6(6) and Iowa Code chapters 237, 237A, 238, and 600.

The following amendments are proposed.

ITEM 1. Amend subrule 107.4(5) as follows:

107.4(5) Record checks. The department of inspections and appeals shall submit record checks for each new applicant and those applying for recertification to determine whether they have any founded child abuse reports or convictions or have been placed on the sex offender registry. The department of inspections and appeals shall use Form SS–1606–0 470–0643, Request for Child Abuse Information, and Form 595–1396, Request for Non–Law EnforcementRecord Check DHS Criminal History Record Check, Form B, shall be used for this purpose. The department of inspections and appeals shall not certify the applicant with a record of a founded child abuse, or a criminal conviction, or placement on the sex offender registry shall not be certified as an adoption investigator unless evaluation of the founded abuse or crime indicates approval for certification.

The applicant shall complete and return Form 470–2310, Record Check Evaluation, within ten calendar days of the date on the form to be used by the department to assist in the evaluation. Failure of the appellant applicant to complete and return Form 470–2310 within the specified time frame shall result in denial of certification.

The department of inspections and appeals shall evaluate the nature and seriousness of the founded abuse or crimes, the time elapsed since the commission of the founded abuse or crimes, the circumstances under which the founded abuse or crime was committed, the degree of rehabilitation, the likelihood that the person will commit the abuse or crime again, and the number of founded abuses or crimes committed by the applicant. The department of inspections and appeals shall notify the applicant of the results of the evaluation or when the applicant fails to complete the evaluation form, using Form 470–2386, Record Check Decision. The department of inspections and appeals shall also issue Form 470–2386 when the applicant fails to complete the evaluation form.

Investigators applying for recertification are subject to the same record checks as new applicants. The department of inspections and appeals shall evaluate only Only abuses, or convictions of crimes, and placement on the sex offender registry since the last record check shall be evaluated using the same process.

ITEM 2. Amend subrule 108.8(1), paragraph “c,” subparagraph (13), as follows:

(13) Evaluation of child abuse and criminal history rec– ord Record checks. The licensed child–placing agency shall submit record checks for each applicant and for any other adult anyone who is 14 years of age or older living in the home of the applicant to determine whether they have any founded child abuse reports or criminal convictions or have been placed on the sex offender registry. The licensed child–placing agency shall use Form 470–0643, Request for Child Abuse Information, and Form 595–1396, Request for Non–Law Enforcement Record Check DHS Criminal History Record Check, Form B, shall be used for this purpose.

If there is the applicant or anyone living in the home of the applicant has a record of founded child abuse, or a criminal conviction for the applicant, or any other adult living in the home of the applicant, or placement on the sex offender registry, the licensed child–placing agency shall not recommend the applicant shall not be licensed for licensure as a foster family, unless an evaluation determines that the abuse or criminal conviction does not warrant prohibition of license.

EXCEPTION: An The licensed child–placing agency shall not recommend that an individual applying to be a foster parent shall not be granted a license and the department shall not perform an evaluation shall not be performed if the applicant or any other adult anyone living in the home of the applicant has been convicted of a felony offense as set forth in Iowa Code section 237.8(2)“a.” The person making the investigation shall not approve a prospective applicant and the department shall not perform an evaluation if the applicant or any other adult anyone living in the home of the applicant has committed a crime in another state that would be a forcible felony if the crime would have been committed in Iowa, as set forth in Iowa Code section 237.8(2)“a.”

The evaluation shall consider the nature and seriousness of the abuse or crime, the time elapsed since the commission of the founded abuse or crime, the circumstances under which the abuse or crime was committed, the degree of rehabilitation, the likelihood that the person will commit the abuse or crime again, and the number of abuses or crimes committed by the person. The person with the criminal conviction or founded child abuse report shall complete and return Form 470–2310, Record Check Evaluation, within ten calendar days of the date on the form to be used to assist in the evaluation. Failure of the person to complete and return Form 470–2310 within the specified time frame shall result in denial of licensure.

The regional administrator or designee shall make the evaluation and decision. The Within 30 days of receipt of Form 470–2310, the regional administrator or designee shall mail the child–placing agency and foster family applicant Form 470–2386, Record Check Decision, when a that explains the decision is reached regarding the evaluation of an abuse or crime. , or The regional administrator or designee shall also issue Form 470–2386 when an applicant fails to complete the evaluation form within the ten–calendar–day time frame.

Foster parents applying for renewal of their license may be subject to the same record checks as new applicants when there is reason to believe that a founded abuse or conviction of a crime has occurred. Only The regional administrator or designee shall evaluate only abuses, or convictions of crimes, or placement on the sex offender registry since the last record check shall be evaluated, using the process set forth above.

ITEM 3. Amend subrule 108.9(4), paragraph “d,” as follows:

d. Record checks. The licensed child–placing agency shall submit record checks for each applicant, and for any other adult anyone who is 14 years of age or older living in the home of the applicant to determine whether they have any founded child abuse reports, or criminal convictions, or have been placed on the sex offender registry. The licensed child–placing agency shall use Form 470–0643, Request for Child Abuse Information, and Form 595–1396, Request for Non–Law Enforcement Record Check DHS Criminal History Record Check, Form B, shall be used for this purpose.

If there is a record of founded child abuse or a criminal conviction for the applicant, or any other adult anyone living in the home of the applicant, the licensed child–placing agency shall not approve the applicant shall not be approved as an adoptive family, unless an evaluation determines that the abuse or criminal conviction does not warrant prohibition of approval.

EXCEPTION: The person making the investigation shall not approve a prospective applicant and the department shall not perform an evaluation if the applicant or any other adultanyone living in the home of the applicant has been convicted of a felony offense as set forth in Iowa Code section 600.8(2)“b.” The person making the investigation shall not approve a prospective applicant and shall not perform an evaluation if the applicant or any other adult anyone living in the home of the applicant has committed a crime in another state that would be a forcible felony if the crime would have been committed in Iowa, as set forth in Iowa Code section 600.8(2)“b.”

The evaluation shall consider the nature and seriousness of the abuse or crime, the time elapsed since the commission of the founded abuse of or crime, the circumstances under which the abuse or crime was committed, the degree of rehabilitation, the likelihood that the person will commit the abuse or crime again, and the number of abuses or crimes committed by the person. The person with the criminal conviction or founded child abuse report shall complete and return Form 470–2310, Record Check Evaluation, within ten calendar days of the date on the form to be used to assist in the evaluation. Failure of the person to complete and return Form 470–2310 within the specified time frame shall result in denial of approval for adoption.

(1) If the applicant, or any other adult anyone living in the home of the applicant, has been convicted of a simple misdemeanor or a serious misdemeanor that occurred five or more years prior to application, the evaluation and decision may be made by the licensed child–placing agency. The licensed child–placing agency shall notify the applicant of the results of the evaluation.

(2) If the applicant, or any other adult anyone living in the home of the applicant, has a founded child abuse report, has been convicted of an aggravated misdemeanor or felony at any time, or has been convicted of a simple or serious misdemeanor that occurred within five years prior to application, the licensed child–placing agency shall initially conduct the evaluation shall be initially conducted by the licensed child–placing agency.

1. If the licensed child–placing agency determines that the abuse or crime does warrant prohibition of approval, the licensed child–placing agency shall notify the applicant of the results of the evaluation.

2. If the licensed child–placing agency believes that the applicant should be approved despite the abuse or criminal conviction, the licensed child–placing agency shall provide copies of Form 470–2310, Record Check Evaluation, and Form 470–2386, Record Check Decision, to the Department of Human Services, Administrator, Division of Adult, Children and Family Services, Hoover State Office Building 1305 East Walnut, Des Moines, Iowa 50319–0114. Within 30 days, the administrator shall determine whether the abuse or crime merits prohibition of approval, and shall notify the licensed child–placing agency in writing of that decision.

The licensed child–placing agency shall also notify the family shall also be notified by the agency in writing no later than 30 days after completion of the home study of the agency’s decision regarding approval for placement of a child. If the family is denied, the agency shall state the reasons for denial shall be stated. The agency worker and supervisor shall date and sign the adoptive home study shall be dated and signed by the agency worker and supervisor. A The agency shall provide a copy of the home study shall be provided to the family. An agency shall not place a child in an adoptive home before the family is approved, or before a placement agreement is signed by the family and the agency.

ITEM 4. Amend subrule 109.6(6) as follows:

109.6(6) Record checks and evaluations. The department shall submit record checks for each owner, director, or staff member with direct responsibility for child care or with access to a child when the child is alone, including staff who perform duties under a subcontract with the center, who will have access to a child, and anyone living in the child care facility who is 14 years of age or older to determine whether they have any founded child abuse reports or criminal convictions or have been placed on the sex offender registry. The department shall use Form SS–1606–0, 470–0643, Request for Child Abuse Information, and Form 595–1396, DHS Criminal History Record Check, Form B, shall be used for this purpose.

If there is the owner, director, staff member with direct responsibility for child care or with access to a child when the child is alone, including staff who perform duties under a subcontract with the center, who will have access to a child, or anyone living in the child care facility has a record of founded child abuse, or a criminal conviction, or placement on the sex offender registry for the owner, director, staff member with direct responsibility for child care or with access to a child when the child is alone, including staff who perform duties under a subcontract with the center, who will have access to a child, or anyone living in the child care facility, the department shall deny or revoke the license shall be denied or revoked, unless an evaluation of the abuse or crime determines that the founded abuse or criminal conviction does not warrant prohibition of licensure or denial of employment.

In an evaluation, the department and the employer of the person with the founded abuse or criminal conviction shall consider the nature and seriousness of the founded abuse or crime in relation to the position sought, the time elapsed since the commission of the founded abuse or crime, the circumstances under which the founded abuse or crime was committed, the degree of rehabilitation, the likelihood that the person will commit the abuse or crime again, and the number of founded abuses or crimes committed by the person. The person with the founded child abuse report or criminal conviction shall complete and return Form 470–2310,Record Check Evaluation, within ten calendar days of the date on the form to be used to assist in the evaluation. Failure of the person to complete and return the form within thespecified time frame shall result in denial or revocation of the license or denial of employment.

c b. The department may permit a person who is evaluated to own, direct, be a staff member with direct responsibility for child care or with access to a child when the child is alone, or to perform duties under subcontract with the center, if the person will have access to a child, or to live in the child care facility, if the person complies with the department’s conditions relating to the person’s licensure, employment, or residence, which may include completion of additional training. For an employee of a center, these conditional requirements shall be developed with the center director. The department has final authority in determining whether prohibition of the person’s licensure, employment, or residence is warranted and in developing any conditional requirements.

d c. The child abuse and criminal record checks shall be repeated a minimum of every five years or if the department or center becomes aware of any founded abuses, or convictions of crimes, or placement on the sex offender registry. Any The department shall evaluate any founded abuses or convictions of crimes since the last criminal record check or child abuse record check shall be evaluated using the same process.

e d. The department shall notify the parent, guardian, or legal custodian of each child for whom the person provides child care if there has been a substantiated founded child abuse case against an owner, director or staff of the child care center. The center shall cooperate with the department in providing the names and address of the parent, guardian, or legal custodian of each child for whom the facility provides child care.

ITEM 5. Amend subrule 110.7(3) as follows:

110.7(3) Record checks. The department shall submit record checks for each registrant, staff member, and anyone living in the home who is 14 years of age or older, and anyone having access to a child when the child is alone to determine whether they have any founded child abuse reports or criminal convictions or have been placed on the sex offender registry. The department shall use Form 470–0643, Request for Child Abuse Information, and Form 595–1396, DHS Criminal History Record Check, Form B, shall be used for this purpose.

a. If there is a record of founded child abuse, or a criminal conviction, or placement on the sex offender registry for the registrant, a staff member, or anyone living in the home, the department shall deny or revoke the registration shall be denied or revoked, unless an evaluation of the abuse or crime determines that the abuse or criminal conviction does not warrant prohibition of registration. In an evaluation, the department and the registrant for an employee of the registrant shall consider the nature and seriousness of the abuse or crime, the time elapsed since the commission of the abuse or crime, the circumstances under which the crime or abuse was committed, the degree of rehabilitation, the likelihood that the person will commit the abuse or crime again, and the number of crimes or abuses committed by the person.

The person with the criminal conviction or founded child abuse report shall complete and return Form 470–2310, Rec– ord Check Evaluation, within ten calendar days of the date on the form to be used to assist in the evaluation. Failure of the person to complete and return the form within the specified time frame shall result in denial or revocation of the license registration certificate.

b. The department may permit a person who is evaluated to be registered, employed, or to reside in, or to continue to be registered, employed, or to reside in, a registered facility, if the person complies with the department’s conditions relating to the person’s registration, employment, or residence, which may include completion of additional training. For an employee of a registrant, these conditional requirements shall be developed with the registrant. The department has final authority in determining whether prohibition of the person’s registration, employment, or residence is warranted and in developing any conditional requirements.

ITEM 6. Amend the implementation clause following 441—Chapter 110, Division I, as follows:

These rules are intended to implement Iowa Code section 234.6 and chapter 237A as amended by 1999 Iowa Acts, chapter 192, division I.

ITEM 7. Amend rule 441—110.31(237A) as follows:

441—110.31(237A) Record checks. The department shall submit record checks for each registrant, staff member, and anyone living in the home who is 14 years of age or older to determine whether the person has any founded child abuse reports, or criminal convictions, or has been placed on the sex offender registry. The department shall use Form 470–0643, Request for Child Abuse Information, and Form 595–1396, DHS Criminal History Record Check, Form B, shall be used for this purpose.

110.31(1) Evaluation of record. If there is the registrant, a staff member, or anyone living in the home has a record of founded child abuse, or a criminal conviction, or placement on the sex offender registry for the registrant, a staff member, or anyone living in the home, the department shall deny or revoke the registration shall be denied or revoked, unless an evaluation of the abuse or crime determines that the abuse or criminal conviction does not warrant prohibition of registration. In an evaluation, the department and the registrant for an employee of the registrant shall consider the nature and seriousness of the abuse or crime, the time elapsed since the commission of the abuse or crime, the circumstances under which the crime or abuse was committed, the degree of rehabilitation, the likelihood that the person will commit the abuse or crime again, and the number of crimes or abuses committed by the person.

The person with the criminal conviction or founded child abuse report shall complete and return Form 470–2310, Rec– ord Check Evaluation, within ten calendar days of the date on the form to be used to assist in the evaluation. Failure of the person to complete and return the form within the specified time frame shall result in denial or revocation of the certificate.

110.31(2) Conditional requirements. The department may permit a person who is evaluated to be registered, employed, or to reside in, or to continue to be registered, employed, or to reside in, a registered facility, if the person complies with the department’s conditions relating to the person’s registration, employment, or residence, which may include completion of additional training. For an employee of a registrant, the department shall develop these conditional requirements shall be developed with the registrant.

It is the responsibility of the registrant to ensure compliance with the conditional requirements. The department has final authority in determining whether prohibition of the person’s registration, employment, or residence is warranted and in developing any conditional requirements.

110.31(3) Evaluation process. The regional administrator or designee shall make the evaluation and decision. Within 30 days of receipt of the completed Form 470–2310, the regional administrator or designee shall mail to the individual on whom the evaluation was completed and to the registrant for an employee of the registrant Form 470–2386,Record Check Decision, that explains the decision reached regarding the evaluation of an abuse or a crime. The regional administrator shall also issue Form 470–2386 when an applicant fails to complete the evaluation form within the ten–calendar–day time frame.

ITEM 8. Amend the implementation clause following 441—Chapter 110, Division II, as follows:

These rules are intended to implement Iowa Code Supplement chapter 237A as amended by 1998 Iowa Acts, Senate File 2312.

ITEM 9. Amend rule 441—113.13(237) as follows:

441—113.13(237) Record checks. The department shall submit record checks for each applicant and for any other adult anyone who is 14 years of age or older living in the home of the applicant to determine whether they have any founded child abuse reports or criminal convictions or have been placed on the sex offender registry. The department shall use Form 470–0643, Request for Child Abuse Information, and Form 595–1396, Request for Non–Law Enforcement Record Check DHS Criminal History Record Check, Form B, shall be used for this purpose.

113.13(1) Evaluation of record. If there is the applicant or anyone living in the home has a record of founded child abuse, or a criminal conviction, or placement on the sex offender registry for the applicant or any other adult living in the home of the applicant, the department shall not license the applicant shall not be licensed as a foster family, unless an evaluation determines that the abuse or criminal conviction does not warrant prohibition of license.

EXCEPTION: An individual applying to be a foster parent shall not be granted a license and an evaluation shall not be performed if the applicant or any other adult anyone living in the home of the applicant has been convicted of a felony offense as set forth in Iowa Code section 237.8(2)“a.” The person making the investigation shall not approve a prospective applicant and shall not perform an evaluation if the applicant or any other adult anyone living in the home of the applicant has committed a crime in another state that would be a forcible felony if the crime would have been committed in Iowa, as set forth in Iowa Code section 237.8(2)“a.”

The evaluation shall consider the nature and seriousness of the founded child abuse or crime in relation to the position sought or held, the time elapsed since the circumstances under which the abuse or crime was committed, the degree of rehabilitation, the likelihood that the person will commit the abuse or crime again, and the number of abuses or crimes committed by the person.

The person with the founded child abuse or criminal conviction report shall complete and return Form 470–2310,Record Check Evaluation, within ten calendar days of the date on the form to be used to assist in the evaluation. Failure of the person to complete and return Form 470–2310 within the specified time frame shall result in denial of licensure.

113.13(2) Evaluation process. If the applicant or any other adult living in the home of the applicant has a founded child abuse report, has been convicted of an aggravated misdemeanor or felony at any time, or has been convicted of a simple or serious misdemeanor that occurred within five years prior to application, the evaluation shall be initially conducted by the regional administrator or designee. The regional administrator or designee shall make the evaluation and decision. Within 30 days of receipt of the completed Form 470–2310, the regional administrator or designee shall mail to the individual on whom the evaluation was completed and to the registrant for an employee of the registrant Form 470–2386, Record Check Decision, that explains the decision reached regarding the evaluation of an abuse or a crime. The regional administrator shall also issue Form 470–2386 when an applicant fails to complete the evaluation form within the ten–calendar–day time frame.

113.13(3) License renewal. Foster parents applying for renewal of a license may be subject to the same checks as new applicants when there is reason to believe that a founded abuse or conviction of a crime has occurred. Only The department shall evaluate only abuses and convictions of crimes since the last record check shall be evaluated using the same process.

ITEM 10. Amend subrule 157.3(1), paragraph “b,” as follows:

b. Record checks. The licensed child–placing agency shall submit record checks for each applicant and for any other adult anyone who is 14 years of age or older living in the home of the applicant to determine whether they have founded child abuse reports, or criminal convictions, or have been placed on the sex offender registry. The licensed child–placing agency shall use Form 470–0643, Request for Child Abuse Information, and Form 595–1396, Request for Non–Law Enforcement Record Check DHS Criminal History Record Check, Form B, shall be used for this purpose.

If there is the applicant or anyone living in the home of the applicant has a record of founded child abuse, or a criminal conviction, or placement on the sex offender registry for the applicant or any other adult living in the home of the applicant, the licensed child–placing agency shall not approve the applicant shall not be approved as an adoptive family unless an evaluation determines that the abuse or criminal conviction does not warrant prohibition of approval.

EXCEPTION: The person making the investigation shall not approve a prospective applicant and the department shall not perform an evaluation if the applicant or any other adult anyone living in the home of the applicant has been convicted of a felony offense as set forth in Iowa Code section 600.8(2)“b.” The person making the investigation shall not approve a prospective applicant and the department shall not perform an evaluation if the applicant or any other adult anyone living in the home of the applicant has committed a crime in another state that would be a forcible felony if the crime would have been committed in Iowa, as set forth in Iowa Code section 600.8(2)“b.”

The evaluation shall consider the nature and seriousness of the abuse or crime, the time elapsed since the commission of the founded abuse or crime, the circumstances under which the abuse or crime was committed, the degree of rehabilitation, the likelihood that the person will commit the abuse or crime again, and the number of abuses or crimes committed by the person.

The person with the founded child abuse or criminal conviction report shall complete and return Form 470–2310,Record Check Evaluation, within ten calendar days of the date on the form to be used to assist in the evaluation. Failure of the person to complete and return Form 470–2310 within the specified time frame shall result in denial of approval for adoption.

(1) If the applicant, or any other adult anyone living in the home of the applicant, has been convicted of a simple misdemeanor or a serious misdemeanor that occurred five or more years prior to application, the evaluation and decision may be made by the licensed child–placing agency. The licensed child–placing agency shall notify the applicant of the results of the evaluation using Form 470–2386, Record Check Decision.

(2) If the applicant, or any other adult anyone living in the home of the applicant, has a founded child abuse report, has been convicted of an aggravated misdemeanor or felony at any time, or has been convicted of a simple or serious misdemeanor that occurred within five years prior to application, the evaluation shall be initially conducted by the licensed child–placing agency.

1. If the licensed child–placing agency determines that the abuse or crime does warrant prohibition of approval, the licensed child–placing agency shall notify the applicant of the results of the evaluation using Form 470–2386, Record Check Decision.

2. If the licensed child–placing agency believes that the applicant should be approved despite the abuse or criminal conviction, the licensed child–placing agency shall provide copies of the child abuse report or criminal history record, Form 470–2310, Record Check Evaluation, and Form 470–2386, Record Check Decision, to the Department of Human Services, Administrator, Division of Adult, Children and Family Services, Hoover State Office Building, Des Moines, Iowa 50319–0114. Within 30 days the administrator shall determine whether the abuse or crime merits prohibition of approval and shall notify the licensed child–placing agency in writing of that decision.

The licensed child–placing agency shall notify the applicant of the results of the evaluation using Form 470–2386, Record Check Decision.

(3) The child abuse and criminal record checks shall be repeated and any founded abuses or convictions of crimes since the last record check shall be evaluated using the same process during the home study update required by Iowa Code section 600.8.

ITEM 11. Amend subrule 170.4(3), paragraph “h,” as follows:

h. Record checks for nonregistered family child care homes. If a nonregistered child care provider, including a relative, wishes to receive public funds as reimbursement for providing child care for eligible clients, the provider shall complete Form 470–0643, Request for Child Abuse Information, and Form 595–1489, State of Iowa Non–Law Enforcement Record Check Request, Form A, for the provider as though the provider either is being considered for registration or is registered to provide child care, for anyone having access to a child when the child is alone, and anyone living in the home. The county office worker or the PROMISE JOBS worker shall provide the individual with the necessary forms. The provider shall return the forms to the county office or PROMISE JOBS worker for submittal to the division of adult, children and family services.

If there is the nonregistered child care provider, anyone having access to a child when the child is alone, or anyone living in the home who is 14 years of age or older has a rec–ord of founded child abuse naming a nonregistered child care provider, anyone having access to a child when the child is alone, or any individual living in the home of the nonregistered child care provider as being a perpetrator of child abuse, or a criminal conviction, for any of the same individuals or placement on the sex offender registry, the division shall notify the regional office to perform an evaluation following the process defined at 441—subrule 110.7(3) or rule 441—110.31(237A). If any of the individuals would be prohibited from registration, employment, or residence, the person shall not provide child care and is not eligible to receive public funds to do so. The regional administrator or designee shall notify the applicant, and shall forward a copy of that notification shall be forwarded to the county attorney, the county office, and the PROMISE JOBS worker, if applicable. A person who continues to provide child care in violation of this law is subject to penalty and injunction under Iowa Code chapter 237A.

ITEM 12. Amend subrule 200.4(1), paragraphs “b” and “c,” as follows:

b. Record checks. The department shall submit record checks for each applicant and for any other adult anyone who is 14 years of age or older living in the home of the applicant to determine whether they have founded child abuse reports, or criminal convictions, or have been placed on the sex offender registry. The department shall use Form 470–0643, Request for Child Abuse Information, and Form 595–1396, Request for Non–Law Enforcement Record Check DHS Criminal History Record Check, Form B, shall be used for this purpose.

If there is the applicant, or anyone living in the home of the applicant, has a record of founded child abuse, or a criminal conviction, or placement on the sex offender registry for the applicant, or any other adult living in the home of the applicant, the department shall not approve the applicant shall not be approved as an adoptive family, unless an evaluation determines that the abuse or criminal conviction does not warrant prohibition of approval.

EXCEPTION: The person making the investigation shall not approve a prospective applicant and shall not perform an evaluation if the applicant or any other adult anyone living in the home of the applicant has been convicted of a felony offense as set forth in Iowa Code section 600.8(2)“b.” The person making the investigation shall not approve a prospective applicant and shall not perform an evaluation if the applicant or any other adult anyone living in the home of the applicant has committed a crime in another state that would be a forcible felony if the crime would have been committed in Iowa, as set forth in Iowa Code section 600.8(2)“b.”

The evaluation shall consider the nature and seriousness of the abuse or crime, the time elapsed since the commission of the founded or confirmed abuse or crime, the circumstances under which the abuse or crime was committed, the degree of rehabilitation, the likelihood that the person will commit the abuse or crime again, and the number of abuses or crimes committed by the person.

The person with the founded child abuse or criminal conviction report shall complete and return Form 470–2310,Record Check Evaluation, within ten calendar days of the date on the form to be used to assist in the evaluation. Failure of the person to complete and return Form 470–2310 within the specified time frame shall result in denial of approval for adoption.

(3) Fees The department shall assess fees associated with the record checks shall be assessed to the adoptive applicant unless the family is being studied to adopt a child with special needs.

c. Written report. The worker shall prepare a written report of the family assessment, known as the adoptive home study, using Form RC–0025, Home Study Format. The worker shall use the home study shall be used to approve or deny a prospective family as an appropriate placement for a child or children. The department adoption worker and supervisor shall date and sign the adoptive home study. The worker shall notify the family of the decision using Form SS–6104–0 470–0745, Adoption Notice of Decision, and, if the worker denies the placement, shall state the reasons for denial shall be stated on the notice. The worker shall provide the family a copy of the adoptive home study with the notification of approval or denial.

Pursuant to the authority of Iowa Code section 505.8, the Division of Insurance hereby gives Notice of Intended Action to rescind Chapter 38, “Coordination of Benefits,” Iowa Administrative Code, and to adopt new Chapter 38 with the same title.

The proposed rules set forth uniform procedures for the reduction of benefits to reduce the incidence of duplication of benefits.

Any person may make written comments on the proposed rules on or before April 10, 2001. Comments should be directed to Jerry J. Wickersham, Executive Officer II, Insurance Division, 330 Maple, Des Moines, Iowa 50319–0065. Comments may also be transmitted via E–mail to jerry.wickersham@comm6.state.ia.us or may be transmitted via facsimile to (515)281–3059.

A public hearing will be held at 10 a.m. on April 10, 2001, in the Division of Insurance Lobby Conference Room, 330 Maple, Des Moines, Iowa 50319. Persons wishing to provide oral comments at the hearing should contact Jerry J. Wickersham no later than April 9, 2001.

These rules are intended to implement Iowa Code chapters 509, 514 and 514B.

The following amendment is proposed.

Rescind 191—Chapter 38 and adopt the following new chapter in lieu thereof:

CHAPTER 38

COORDINATION OF BENEFITS

191—38.1(509,514,514B) Purpose and applicability. The purpose of this chapter is to:

1. Permit, but not require, plans to include a coordination of benefits (COB) provision unless prohibited by federal law;

2. Establish a uniform order of benefit determination under which plans pay claims;

3. Provide authority for the orderly transfer of necessary information and funds between plans;

4. Reduce duplication of benefits by permitting a reduction of the benefits to be paid by plans that, pursuant to rules established by this chapter, do not have to pay their benefits first;

5. Reduce claims payment delays; and

6. Require that COB provisions be consistent with this chapter.

191—38.2(509,514,514B) Definitions. As used in this chapter, these words and terms have the following meanings, unless the context clearly indicates otherwise:

“Allowable expense” means a health care service or expense including deductibles, coinsurance or copayments that is covered in full or in part by any of the plans covering the person, except as set forth below or where a statute requires a different definition. This means that an expense or service or a portion of an expense or service that is not covered by any of the plans is not an allowable expense.

a. The following are examples of expenses or services that are not an allowable expense:

(1) If a covered person is confined in a private hospital room, the difference between the cost of a semiprivate room in the hospital and the private room is not an allowable expense (unless the patient’s stay in the private hospital room is medically necessary in terms of generally accepted medical practice or one of the plans routinely provides coverage for private hospital rooms).

(2) If a person is covered by two or more plans that compute their benefit payments on the basis of usual and customary fees, any amount in excess of the highest of the usual and customary fee for a specified benefit is not an allowable expense.

(3) If a person is covered by two or more plans that provide benefits or services on the basis of negotiated fees, any amount in excess of the highest of the negotiated fees is not an allowable expense.

(4) If a person is covered by one plan that calculates its benefits or services on the basis of usual and customary fees and another plan that provides its benefits or services on the basis of negotiated fees, the primary plan’s payment arrangement shall be the allowable expense for all plans.

b. The definition of “allowable expense” may exclude certain types of coverage or benefits such as dental care, vision care, prescription drug or hearing aids. A plan that limits the application of COB to certain coverages or benefits may limit the definition of allowable expenses in its contract to services or expenses that are similar to the services or expenses that it provides. When COB is restricted to specific coverages or benefits in a contract, the definition of allowable expense shall include similar services or expenses to which COB applies.

c. When a plan provides benefits in the form of services, the reasonable cash value of each service will be considered an allowable expense and a benefit paid.

d. The amount of the reduction may be excluded from allowable expense when a covered person’s benefits are reduced under a primary plan:

(1) Because the covered person does not comply with the plan provisions concerning second surgical opinions or precertification of admissions or services; or

(2) Because the covered person has a lower benefit because the person did not use a preferred provider.

e. If the primary plan is a closed panel plan and the secondary plan is not a closed panel plan, the secondary plan shall pay or provide benefits as if it were primary when a covered person uses a non–panel provider, except for emergency services or authorized referrals that are paid or provided by the primary plan.

“Claim” means a request that benefits of a plan be provided or paid. The benefits claimed may be in the form of:

a. Services (including supplies);

b. Payment for all or a portion of the expenses incurred;

c. A combination of paragraphs “a” and “b” above; or

d. An indemnification.

“Claim determination period” means a period of not less than 12 consecutive months over which allowable expenses shall be compared with total benefits payable in the absence of COB to determine whether overinsurance exists and how much each plan will pay or provide.

a. The claim determination period is usually a calendar year, but a plan may use some other period of time that fits the coverage of the group contract. A person is covered by a plan during a portion of a claim determination period if that person’s coverage starts or ends during the claim determination period.

b. As each claim is submitted, each plan determines its liability and pays or provides benefits based upon allowable expenses incurred to that point in the claim determination period. That determination is subject to adjustment as later allowable expenses are incurred in the same claim determination period.

“Closed panel plan” means a health maintenance organization (HMO), preferred provider organization (PPO), exclusive provider organization (EPO), or other plan that provides health benefits to covered persons primarily in the form of services through a panel of providers that have contracted with or are employed by the plan, and that limits or excludes benefits for services provided by other providers, except in cases of emergency or referral by a panel member.

“Coordination of benefits” means a provision establishing an order in which plans pay their claims, and permitting secondary plans to reduce their benefits so that the combined benefits of all plans do not exceed total allowable expenses.

“Custodial parent” means the parent awarded custody of a child by a court decree. In the absence of a court decree, the custodial parent is the parent with whom the child resides more than one–half of the calendar year without regard to any temporary visitation.

“Hospital indemnity benefits” means benefits notrelated to expenses incurred. The term does not includereimbursement–type benefits even if they are designed or administered to give the insured the right to elect indemnity–type benefits at the time of claim.

“Plan” means a form of coverage with which coordination is allowed. The definition of plan in the group contract must state the types of coverage that will be considered in applying the COB provision of that contract. The right to include a type of coverage is limited by the remainder of this definition. Separate parts of a plan for members of a group that are provided through alternative contracts that are intended to be part of a coordinated package of benefits are considered one plan and there is no COB among the separate parts of the plan.

a. The definition shown in the model COB provision in Appendix A is an example but any definition that satisfies the requirements stated here may be used.

b. This chapter uses the term “plan.” However, a contract may use the term “program” or some other term.

c. “Plan” may include:

(1) Group insurance contracts and group subscriber contracts;

(2) Uninsured arrangements of group or group–type coverage;

(3) Group or group–type coverage through closed panel plans;

(4) Group–type contracts. Group–type contracts are contracts which are not available to the general public and can be obtained and maintained only because of membership in or connection with a particular organization or group, including franchise or blanket coverage. Individually underwritten and issued guaranteed renewable policies are not “group–type” even if purchased through payroll deduction at a premium savings to the insured since the insured would have the right to maintain or renew the policy independently of continued employment with the employer;

(5) The amount by which group or group–type hospital indemnity benefits exceed $200 per day;

(6) The medical care components of group long–term care contracts, such as skilled nursing care;

(7) The medical benefits coverage in group, group–type and individual automobile “no fault” and traditional automobile “fault” contracts; and

(8) Medicare or other governmental benefits, as permitted by law, except as provided in (9) of paragraph “d” below. That part of the definition of plan may be limited to the hospital, medical and surgical benefits of the governmental program.

d. “Plan” shall not include:

(1) Individual or family insurance contracts;

(2) Individual or family subscriber contracts;

(3) Individual or family coverage through closed panel plans;

(4) Individual or family coverage under other prepayment, group practice and individual practice plans;

(5) Group or group–type hospital indemnity benefits of $200 per day or less;

(6) School accident–type coverages. These contracts cover students for accidents only, including athletic injuries, either on a 24–hour basis or on a “to and from school” basis;

(7) Benefits provided in group long–term care insurance policies for nonmedical services, for example, personal care, adult day care, homemaker services, assistance with activities of daily living, respite care and custodial care or for contracts that pay a fixed daily benefit without regard to expenses incurred or the receipt of services;

(8) Medicare supplement policies;

(9) A state plan under Medicaid; or

(10) A governmental plan which, by law, provides benefits that are in excess of those of any private insurance plan or other nongovernmental plan.

“Primary plan” means a plan whose benefits for a person’s health care coverage must be determined without taking the existence of any other plan into consideration. A plan is a primary plan if either of the following is true:

a. The plan either has no order of benefit determination rules or its rules differ from those permitted by this chapter; or

b. All plans that cover the person use the order of benefit determination guidelines required by this chapter, and under those guidelines the plan determines its benefits first.

“Secondary plan” means a plan that is not a primary plan. If a person is covered by more than one secondary plan, the order of benefit determination guidelines of this chapter decide the order in which secondary plans’ benefits are determined in relation to each other. Each secondary plan shall take into consideration the benefits of the primary plan or plans and the benefits of any other plan which, under the order of benefit guidelines of this chapter, has its benefits determined before those of that secondary plan.

“This plan” means, in a COB provision, the part of the group contract providing the health care benefits to which the COB provision applies and which may be reduced because of the benefits of other plans. Any other part of the group contract providing health care benefits is separate from this plan. A group contract may apply one COB provision to certain of its benefits (such as dental benefits), coordinating only with similar benefits, and may apply another COB provision to coordinate with other benefits.

38.3(1) Appendix A contains a model COB provision for use in group contracts. That use is subject to the provisions of subrules 38.3(2) to 38.3(4) below and to the provisions of rule 38.4(509,514,514B).

38.3(2) Appendix B is a plain–language description of the COB process that explains to the covered person how insurers will implement coordination of benefits. It is not intended to replace or change the provisions that are set forth in the contract. Its purpose is to explain the process by which the two (or more) plans will pay for or provide benefits, how the benefit reserve is accrued and how the covered person may use the benefit reserve.

38.3(3) The COB provision and the plain–language explanation do not have to use the specific words and format shown in Appendix A or Appendix B. Changes may be made to fit the language and style of the rest of the group contract or to reflect differences among plans that provide services, that pay benefits for expenses incurred and that indemnify. No substantive changes are permitted.

38.3(4) A COB provision may not be used that permits a plan to reduce its benefits on the basis that:

a. Another plan exists and the covered person did not enroll in that plan;

b. A person is or could have been covered under another plan, except with respect to Part B of Medicare; or

c. A person has elected an option under another plan providing a lower level of benefits than another option that could have been elected.

38.3(5) No plan may contain a provision that its benefits are “always excess” or “always secondary” except in accordance with this chapter.

38.3(6) Under the terms of a closed panel plan, benefits are not payable if the covered person does not use the services of a closed panel provider. In most instances, COB does not occur if a covered person is enrolled in two or more closed panel plans and obtains services from a provider in one of the closed panel plans because the other closed panel plan (the one whose providers were not used) has no liability. However, COB may occur during the claim determination period when the covered person receives emergency services that would have been covered by both plans. Then the secondary plan must use the benefit reserve to pay any unpaid allowable expense.

191—38.4(509,514,514B) Rules for coordination of benefits. When a person is covered by two or more plans, the rules for determining the order of benefit payments are as follows:

38.4(1) The primary plan must pay or provide its benefits as if the secondary plan or plans did not exist.

38.4(2) A plan that does not contain a coordination of benefits provision that is consistent with this chapter is always primary. There is one exception: Coverage that is obtained by virtue of membership in a group and designed to supplement a part of a basic package of benefits may provide that the supplementary coverage shall be excess to any other parts of the plan provided by the contract holder. Examples of these types of situations are major medical coverages that are superimposed over base plan hospital and surgical benefits and insurance–type coverages that are written in connection with a closed panel plan to provide out–of–network benefits.

38.4(3) A plan may consider the benefits paid or provided by another plan only when it is secondary to that other plan.

38.4(4) Order of benefit determination. The first of the following rules that describes which plan pays its benefits before another plan is the rule to use:

a. Nondependent or dependent. The plan that covers the person other than as a dependent, for example, as an employee, member, subscriber or retiree, is primary, and the plan that covers the person as a dependent is secondary. However, if the person is a Medicare beneficiary and, as a result of the provisions of Title XVIII of the Social Security Act and implementing regulations, Medicare is:

(1) Secondary to the plan covering the person as a dependent; and

(2) Primary to the plan covering the person as other than a dependent (e.g., a retired employee), then the order of benefits is reversed so that the plan covering the person as an employee, member, subscriber or retiree is secondary and the other plan is primary.

b. Child covered under more than one plan.

(1) The primary plan is the plan of the parent whose birthday is earlier in the year if:

1. The parents are married;

2. The parents are not separated (whether or not they ever have been married); or

3. A court decree awards joint custody without specifying that one parent has the responsibility to provide health care coverage.

(2) If both parents have the same birthday, the plan that has covered either of the parents longer is primary.

(3) If the specific terms of a court decree state that one of the parents is responsible for the child’s health care expenses or health care coverage and the plan of that parent has actual knowledge of those terms, that plan is primary. If the parent with financial responsibility has no coverage for the child’s health care services or expenses but that parent’s spouse does, the spouse’s plan is primary. This subparagraph shall not apply with respect to any claim determination period or plan year during which benefits are paid or provided before the entity has actual knowledge.

(4) If the parents are not married or are separated (whether or not they ever were married) or are divorced, and there is no court decree allocating responsibility for the child’s health care services or expenses, the order of benefit determination among the plans of the parents and the parents’ spouses (if any) is:

1. The plan of the custodial parent;

2. The plan of the spouse of the custodial parent;

3. The plan of the noncustodial parent; and then

4. The plan of the spouse of the noncustodial parent.

c. Active or inactive employee. The plan that covers a person as an employee who is neither laid off nor retired (or as that employee’s dependent) is primary. If the other plan does not have this rule, and if, as a result, the plans do not agree on the order of benefits, this rule is ignored. Coverage provided an individual as a retired worker and as a dependent of that individual’s spouse as an active worker will be determined under 38.4(4)“a.”

d. Continuation coverage. If a person whose coverage is provided under a right of continuation pursuant to federal or state law also is covered under another plan, the plan covering the person as an employee, member, subscriber or retiree (or as that person’s dependent) is primary and the continuation coverage is secondary. If the other plan does not have this rule, and if, as a result, the plans do not agree on the order of benefits, this rule is ignored.

e. Longer or shorter length of coverage. If the preceding rules do not determine the order of benefits, the plan that has covered the person for the longer period of time is primary.

(1) To determine the length of time a person has been covered under a plan, two plans shall be treated as one if the covered person was eligible under the second within 24 hours after the first ended.

(2) The start of a new plan does not include:

1. A change in the amount of scope of a plan’s benefits;

2. A change in the entity that pays, provides or administers the plan’s benefits; or

3. A change from one type of plan to another (such as, from a single employer plan to a multiple employer plan).

(3) The person’s length of time covered under a plan is measured from the person’s first date of coverage under that plan. If that date is not readily available for a group plan, the date the person first became a member of the group shall be used as the date from which to determine the length of time the person’s coverage under the present plan has been in force.

f. If none of the preceding rules determines the primary plan, the allowable expenses shall be shared equally between the plans.

38.5(1) When a plan is secondary, it shall reduce its benefits so that the total benefits paid or provided by all plans during a claim determination period are not more than 100 percent of total allowable expenses. The secondary plan shall calculate its savings by subtracting the amount that it paid as a secondary plan from the amount it would have paid had it been primary. These savings shall be recorded as a benefit reserve for the covered person and shall be used by the secondary plan to pay any allowable expenses, not otherwise paid, that are incurred by the covered person during the claim determination period. As each claim is submitted, the secondary plan must:

a. Determine its obligation, pursuant to its contract;

b. Determine whether a benefit reserve has been recorded for the covered person; and

c. Determine whether there are any unpaid allowable expenses during that claims determination period.

If there is a benefit reserve, the secondary plan shall use the covered person’s recorded benefit reserve to pay up to 100 percent of total allowable expenses incurred during the claim determination period. At the end of the claim determination period the benefit reserve returns to zero. A new benefit reserve must be created for each new claim determination period.

38.5(2) The benefits of the secondary plan shall be reduced when the sum of the benefits that would be payable for the allowable expenses under the secondary plan in the absence of this COB provision and the benefits that would be payable for the allowable expenses under the other plans, in the absence of provisions with a purpose like that of this COB provision, whether or not a claim is made, exceeds the allowable expenses in a claim determination period. In that case, the benefits of the secondary plan shall be reduced so that they and the benefits payable under the other plans do not total more than the allowable expenses.

a. When the benefits of a plan are reduced as described above, each benefit is reduced in proportion. It is then charged against any applicable benefit limit of the plan.

b. The requirements of 38.5(2)“a” do not apply if the plan provides only one benefit, or may be altered to suit the coverage provided.

191—38.6(509,514,514B) Notice to covered persons. A plan shall, in its explanation of benefits provided to covered persons, include the following language: “If you are covered by more than one health benefit plan, you should file all your claims with each plan.”

38.7(1) Reasonable cash value of services. A secondary plan that provides benefits in the form of services may recover the reasonable cash value of the services from the primary plan to the extent that benefits for the services are covered by the primary plan and have not already been paid or provided by the primary plan. Nothing in this subrule shall be interpreted to require a plan to reimburse a covered person in cash for the value of services provided by a plan that provides benefits in the form of services.

38.7(2) Excess and other noncomplying plans.

a. A plan with order of benefit determination guidelines that comply with this chapter (complying plan) may coordinate its benefits with a plan that is “excess” or “always secondary” or that uses order of benefit determination guidelines that are inconsistent with those contained in this chapter (noncomplying plan) on the following bases:

(1) If the complying plan is the primary plan, it shall pay or provide its benefits first;

(2) If the complying plan is the secondary plan, it shall, nevertheless, pay or provide its benefits first, but the amount of the benefits payable shall be determined as if the complying plan were the secondary plan. In such a situation, the payment shall be the limit of the complying plan’s liability; and

(3) If the noncomplying plan does not provide the information needed by the complying plan to determine its benefits within a reasonable time after it is requested to do so, the complying plan shall assume that the benefits of the noncomplying plan are identical to its own and shall pay its benefits accordingly. If, within two years of payment, the complying plan receives information as to the actual benefits of the noncomplying plan, it shall adjust payments accordingly.

b. If the noncomplying plan reduces its benefits so that the covered person receives less in benefits than would have been received had the complying plan paid or provided its benefits as the primary plan and governing state law allows the right of subrogation set forth below, then the complying plan shall advance to or on behalf of the covered person an amount equal to the difference.

c. In no event shall the complying plan advance more than the complying plan would have paid had it been the primary plan less any amount it previously paid for the same expense or service. In consideration of the advance, the complying plan shall be subrogated to all rights of the covered person against the noncomplying plan. The advance by the complying plan shall also be without prejudice to any claim it may have against a noncomplying plan in the absence of subrogation.

38.7(3) Subrogation. COB differs from subrogation. Provisions for one may be included in health care benefits contracts without compelling the inclusion or exclusion of the other.

38.7(4) Inability to agree. If the plans cannot agree on the order of benefits within 30 calendar days after the plans have received all of the information needed to pay the claim, the plans shall immediately pay the claim in equal shares and determine their relative liabilities following payment, except that no plan shall be required to pay more than it would have paid had it been primary.

38.8(1) This chapter is applicable to every group contract that provides health care benefits and that is issued on or after the effective date of this chapter, which is [insert date].

38.8(2) A group contract that provides health care benefits and that was issued before the effective date of this chapter shall be brought into compliance with this chapter by the later of:

a. The next anniversary date or renewal date of the group contract; or

b. The expiration date of any applicable collectively bargained contract pursuant to which it was written.

APPENDIX A.

MODEL COB CONTRACT PROVISIONS

COORDINATION OF THIS GROUP CONTRACT’S BENEFITS WITH OTHER BENEFITS

This coordination of benefits (COB) provision applies when a person has health care coverage under more than one plan. “Plan” is defined below.

The order of benefit determination rules below determine which plan will pay as the primary plan. The primary plan that pays first pays without regard to the possibility that another plan may cover some expenses. A secondary plan pays after the primary plan and may reduce the benefits it pays so that payments from all group plans do not exceed 100 percent of the total allowable expense.

A. A “plan” is any of the following that provides benefits or services for medical or dental care or treatment. However, if separate contracts are used to provide coordinated coverage for members of a group, the separate contracts are considered parts of the same plan and there is no COB among those separate contracts.

(1) “Plan” includes: group insurance, closed panel or other forms of group or group–type coverage (whether insured or uninsured); hospital indemnity benefits in excess of $200 per day; medical care components of group long–term care contracts, such as skilled nursing care; medical benefits under group or individual automobile contracts; and Medicare or other governmental benefits, as permitted by law.

(2) “Plan” does not include: individual or family insurance; closed panel or other individual coverage (except for group–type coverage); amounts of hospital indemnity insurance of $200 or less per day; school accident–type coverage; benefits for nonmedical components of group long–term care policies; Medicare supplement policies; Medicaid policies and coverage under other governmental plans, unless permitted by law. Each contract for coverage under (1) or (2) is a separate plan. If a plan has two parts and COB rules apply only to one of the two, each of the parts is treated as a separate plan.

B. The order of benefit determination rules determine whether this plan is a “primary plan” or “secondary plan” when compared to another plan covering the person. When this plan is primary, its benefits are determined before those of any other plan and without considering any other plan’s benefits. When this plan is secondary, its benefits are determined after those of another plan and may be reduced because of the primary plan’s benefits.

C. “Allowable expense” means a health care service or expense, including deductibles and copayments, that is covered at least in part by any of the plans covering the person. When a plan provides benefits in the form of services (for example, an HMO), the reasonable cash value of each service will be considered an allowable expense and a benefit paid. An expense or service that is not covered by any of the plans is not an allowable expense. The following are examples of expenses or services that are not allowable expenses:

(1) If a covered person is confined in a private hospital room, the difference between the cost of a semiprivate room in the hospital and the private room is not an allowable expense (unless the patient’s stay in a private hospital room is medically necessary in terms of generally accepted medical practice or one of the plans routinely provides coverage for private hospital rooms).

(2) If a person is covered by two or more plans that compute their benefit payments on the basis of usual and customary fees, any amount in excess of the highest of the usual and customary fees for a specific benefit is not an allowable expense.

(3) If a person is covered by two or more plans that provide benefits or services on the basis of negotiated fees, an amount in excess of the highest of the negotiated fees is not an allowable expense.

(4) If a person is covered by one plan that calculates its benefits or services on the basis of usual and customary fees and another plan that provides its benefits or services on the basis of negotiated fees, the primary plan’s payment arrangements shall be the allowable expense for all plans.

(5) The amount a benefit is reduced by the primary plan because a covered person does not comply with the plan provisions is not an allowable expense. Examples of these provisions are second surgical opinions, precertification of admissions, and preferred provider arrangements.

D. “Claim determination period” means a calendar year. However, it does not include any part of a year during which a person has no coverage under this plan, or before the date this COB provision or a similar provision takes effect.

E. “Closed panel plan” is a plan that provides health benefits to covered persons primarily in the form of services through a panel of providers that have contracted with or are employed by the plan, and that limits or excludes benefits for services provided by other providers, except in cases of emergency or referral by a panel member.

F. “Custodial parent” means a parent awarded custody by a court decree. In the absence of a court decree, it is the parent with whom the child resides more than one–half of the calendar year without regard to any temporary visitation.

When two or more plans pay benefits, the rules for determining the order of payment are as follows:

A. The primary plan pays or provides its benefits as if the secondary plan or plans did not exist.

B. A plan that does not contain a coordination of benefits provision that is consistent with this regulation is always primary. There is one exception: Coverage that is obtained by virtue of membership in a group that is designed to supplement a part of a basic package of benefits may provide that the supplementary coverage shall be excess to any other parts of the plan provided by the contract holder. Examples of these types of situations are major medical coverages that are superimposed over base plan hospital and surgical benefits and insurance–type coverages that are written in connection with a closed panel plan to provide out–of–network benefits.

C. A plan may consider the benefits paid or provided by another plan in determining its benefits only when it is secondary to that other plan.

D. The first of the following rules that describes which plan pays its benefits before another plan is the rule to use.

(1) Nondependent or dependent. The plan that covers the person other than as a dependent, for example, as an employee, member, subscriber or retiree, is primary and the plan that covers the person as a dependent is secondary. However, if the person is a Medicare beneficiary and, as a result of federal law, Medicare is secondary to the plan covering the person as a dependent and primary to the plan covering the person as other than a dependent (e.g., a retired employee), then the order of benefits between the two plans is reversed so that the plan covering the person as an employee, member, subscriber or retiree is secondary and the other plan is primary.

(2) Child covered under more than one plan. The order of benefits when a child is covered by more than one plan is:

(a) The primary plan is the plan of the parent whose birthday is earlier in the year if:

• The parents are married;

• The parents are not separated (whether or not they ever have been married); or

• A court decree awards joint custody without specifying that one party has the responsibility to provide health care coverage.

If both parents have the same birthday, the plan that covered either of the parents longer is primary.

(b) If the specific terms of a court decree state that one of the parents is responsible for the child’s health care expenses or health care coverage and the plan of that parent has actual knowledge of those terms, that plan is primary. This rule applies to claim determination periods or plan years commencing after the plan is given notice of the court decree.

(c) If the parents are not married or are separated (whether or not they ever have been married) or are divorced, the order of benefits is:

• The plan of the custodial parent;

• The plan of the spouse of the custodial parent;

• The plan of the noncustodial parent; and then

• The plan of the spouse of the noncustodial parent.

(3) Active or inactive employee. The plan that covers a person as an employee who is neither laid off nor retired is primary. The same would hold true if a person is a dependent of a person covered as a retiree and an employee. If the other plan does not have this rule and if, as a result, the plans do not agree on the order of benefits, this rule is ignored. Coverage provided an individual as a retired worker and as a dependent of an actively working spouse will be determined under the rule labeled D(1).

(4) Continuation coverage. If a person whose coverage is provided under a right of continuation provided by federal or state law is also covered under another plan, the plan covering the person as an employee, member, subscriber or retiree (or as that person’s dependent) is primary and the continuation coverage is secondary. If the other plan does not have this rule and if, as a result, the plans do not agree on the order of benefits, this rule is ignored.

(5) Longer or shorter length of coverage. The plan that covered the person as an employee, member, subscriber or retiree longer is primary.

(6) If the preceding rules do not determine the primary plan, the allowable expenses shall be shared equally between the plans meeting the definition of plan under this regulation. In addition, this plan will not pay more than it would have paid had it been primary.

A. When this plan is secondary, it may reduce its benefits so that the total benefits paid or provided by all plans during a claim determination period are not more than 100 percent of total allowable expenses. The difference between the benefit payments that this plan would have paid had it been the primary plan and the benefit payments that it actually paid or provided shall be recorded as a benefit reserve for the covered person and used by this plan to pay any allowable expenses not otherwise paid during the claim determination period. As each claim is submitted, this plan will:

(1) Determine its obligation to pay or provide benefits under its contract;

(2) Determine whether a benefit reserve has been recorded for the covered person; and

(3) Determine whether there are any unpaid allowable expenses during that claims determination period. If there is a benefit reserve, the secondary plan will use the covered person’s benefit reserve to pay up to 100 percent of total allowable expenses incurred during the claim determination period. At the end of the claims determination period, the benefit reserve returns to zero. A new benefit reserve must be created for each new claim determination period.

B. If a covered person is enrolled in two or more closed panel plans and if, for any reason, including the provision of service by a non–panel provider, benefits are not payable by one closed panel plan, COB shall not apply between that plan and other closed panel plans.

Certain facts about health care coverage and services are needed to apply these COB rules and to determine benefits payable under this plan and other plans. [Organization responsible for COB administration] may get the facts it needs from or give them to other organizations or persons for the purpose of applying these rules and determining benefits payable under this plan and other plans covering the person claiming benefits. [Organization responsible for COB administration] need not tell, or get the consent of, any person to do this. Each person claiming benefits under this plan must give [Organization responsible for COB administration] any facts it needs to apply those rules and determine benefits payable.

A payment made under another plan may include an amount that should have been paid under this plan. If it does, [Organization responsible for COB administration] may pay that amount to the organization that made that payment. That amount will then be treated as though it were a benefit paid under this plan. [Organization responsible for COB administration] will not have to pay that amount again. The term “payment made” includes providing benefits in the form of services, in which case “payment made” means reasonable cash value of the benefits provided in the form of services.

If the amount of the payments made by [Organization responsible for COB administration] is more than it should have paid under this COB provision, it may recover the excess from one or more of the persons it has paid or for whom it has paid; or any other person or organization that may be responsible for the benefits or services provided for the covered person. The “amount of the payments made” includes the reasonable cash value of any benefits provided in the form of services.

APPENDIX B.

CONSUMER EXPLANATORY BOOKLET

COORDINATION OF BENEFITS

It is common for family members to be covered by more than one health care plan. This happens, for example, when a husband and wife both work and choose to have family coverage through both employers.

When you are covered by more than one group health plan, state law permits your insurers to follow a procedure called “coordination of benefits” to determine how much each should pay when you have a claim. The aim is to make sure that the combined payments of all plans do not add up to more than your covered health care expenses.

Coordination of benefits (COB) is complicated and covers a wide variety of circumstances. This is only an outline of some of the most common ones. If your situation is not described, read your evidence of coverage or contact your state insurance department.

You will be asked to identify all the plans that cover family members. We need this information to determine whether we are “primary” or “secondary.” The primary plan always pays first.

Any plan which does not contain your state’s coordination of benefits rules will always be primary.

If you or a family member are covered under another plan in addition to this one, we will be primary when:

• The claim is for your own health care expenses, unless you are covered by Medicare and both you and your spouse are retired.

• The claim is for your spouse, who is covered by Medicare, and you are not both retired.

• The claim is for the health care expenses of a child covered by this plan and

• Your birthday is earlier in the year than your spouse’s. This is known as the “birthday rule”;

or

• You are not married and you have informed us of a court decree that makes you responsible for the child’s health care expenses;

or

• There is no court decree, but you have custody of the child.

We will be primary when any other provisions of state or federal law require us to be.

When we are the primary plan, we will pay the bene–fits provided by your contract, just as if you had no other coverage.

We will be secondary whenever the rules do not require us to be primary.

When we are the secondary plan, we do not pay until after the primary plan has paid its benefits. We will then pay part or all of the allowable expenses left unpaid. An “allowable expense” is a health care service or expense covered by one of the plans, including copayments and deductibles.

• If there is a difference between the amount the plans allow, we will base our payment on the higher amount. However, if the primary plan has a contract with the provider, our combined payments will not be more than the contract calls for. Health maintenance organizations (HMO) and preferred provider organizations (PPO) usually have contracts with their providers.

• We will determine our payment by subtracting the amount the primary plan paid from the amount we would have paid if we had been primary. We will use any savings to pay the balance of any unpaid allowable expenses covered by either plan.

• If the primary plan covers similar kinds of health care but allows expenses that we do not cover, we will pay for those items as long as there is a balance in your benefit reserve, as explained below.

• We will not pay an amount the primary plan did not cover because you did not follow its rules and procedures. For example, if your plan has reduced its benefit because you did not obtain precertification, we will not pay the amount of the reduction because it is not an allowable expense.

When we are secondary we often will pay less than we would have paid if we had been primary. Each time we “save” by paying less, we will put that savings into a benefit reserve. Each family member covered by this plan has a separate benefit reserve.

• We use the benefit reserve to pay allowable expenses that are covered only partially by both plans. To obtain a reimbursement, you must show us what the primary plan has paid so we can calculate the savings.

• To make sure you receive the full benefit or coordination, you should submit all claims to each of your plans.

• Savings can build up in your reserve for one year. At the end of the year any balance is erased, and a fresh benefit reserve begins for each person the next year as soon as there are savings on claims.

These rules are intended to implement Iowa Code chapters 509, 514 and 514B.

Pursuant to the authority of Iowa Code section 97B.15, the Department of Personnel hereby gives Notice of Intended Action to amend Chapter 21, “Iowa Public Employees’ Retirement System,” Iowa Administrative Code.

These amendments include the following:

1. A new subrule 21.1(6) is proposed. IPERS incurs various fees and costs in the management of the retirement system’s investment portfolio. IPERS reports its investment returns net of all third–party investment management fees and costs in its annual financial report, and has predominantly utilized performance–based fee arrangements in contracting with investment management firms. Iowa Code section 97B.7(2)“b” places a limit on investment management expenses of 0.40 percent of the market value of the retirement system’s assets. The proposed new subrule delineates standards for calculating IPERS’ compliance with this statutory expense limitation.

2. Subparagraph 21.5(1)“a”(19) is amended to clarify the scope of the prior change to this subparagraph. IPERS did not intend to bring high school students and students in lower grades into coverage with the prior change.

3. A new subparagraph 21.6(9)“d”(6) is proposed to implement current IPERS’ procedure for recording service credit when the Legislature changes a class of employees from regular to a special service classification.

4. Subrule 21.8(9) is amended to clarify the effect ofreemployment/reinstatement following employment–related litigation when a former employee takes a refund and gets reinstated before four months have passed. IPERS believes that situation is outside the scope of Iowa Code section 97B.53(4), which requires refunds to be repaid if a member is reemployed less than four months after taking a refund. The primary reason for IPERS’ requesting the four–month rule in the first place was to prevent refund manipulation, not this type of situation.

5. Subrule 21.11(6) is amended to clarify that benefits under the transition age 70 session law (2000 Iowa Acts, chapter 1077, section 74) cannot begin before the date the bill was signed into law.

6. Paragraph 21.13(10)“d” is amended to clarify IPERS’ procedures for members who apply for benefits calculated under Iowa Code section 97B.49D, the hybrid benefit formula. IPERS believes it would be beneficial and fairer to members if the system uses all years of service in determining the amount of the age reduction for the regular service component of the hybrid formula.

7. Subrule 21.22(2) is amended and new subrule 21.22(3) is adopted to clarify how to suspend and recalculate benefits when a disabled member (under Iowa Code section 97B.50(2)) returns to covered employment.

8. A new subrule 21.24(17) is adopted to reflect IPERS’ procedure for determining service purchase costs when a member is purchasing service that may or may not be of the same occupational class code as that upon which the retirement is calculated. This procedure ensures that the system is adequately compensated for the future payment liabilities related to the service being purchased.

9. Subparagraph 21.29(2)“a”(1) is rescinded and a new subparagraph is adopted to reflect the Iowa Supreme Court’s directive that social security numbers are not to be included in court orders, such as IPERS’ qualified domestic relations orders.

10. Subrule 21.30(3) is amended to clarify that the favorable experience dividend (FED) is not decreased for retired reemployed persons who choose to suspend their monthly retirement allowances to avoid having to repay excess IPERS benefits to the system.

11. Subrule 21.31(1), introductory paragraph; subrule 21.31(4), third unnumbered paragraph; and subrules 21.31(8), 21.31(12), and 21.31(13) are amended primarily to help facilitate the administration of the new special service members disability program and make it consistent with Iowa Code section 97B.50A.

12. IPERS requests that the Administrative Code Editor amend all citations to the provisions of 2000 Iowa Acts, chapter 1077, that have now been codified in the 2001 Iowa Code. Text of those changes is not included in this filing, except for the citations that occur in the text of the amendments herein.

There are no waiver provisions included in the proposed amendments because these are interpretive rules, or are rules that confer benefits or remove limitations.

Any interested person may make written suggestions or comments on these proposed amendments on or before April 10, 2001. Such written suggestions or comments should be directed to the IPERS Administrative Rules Coordinator, IPERS, P.O. Box 9117, Des Moines, Iowa 50306–9117. Persons who wish to present their comments orally may contact the IPERS Administrative Rules Coordinator at (515) 281–0089. Comments may also be submitted by fax to (515) 281–0045, or by E–mail to info@ipers.state.ia.us.

There will be a public hearing on April 10, 2001, at 9 a.m. at IPERS, 7401 Register Drive, Des Moines, Iowa, at which time persons may present their views either orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject matter of the proposed amendments.

These amendments are intended to implement Iowa Code chapter 97B.

These amendments were also Adopted and Filed Emergency and are published herein as ARC 0556B. The content of that submission is incorporated by reference.

Pursuant to the authority of Iowa Code section 455G.4(3), the Iowa Comprehensive Petroleum Underground Storage Tank Fund Board hereby gives Notice of Intended Action to adopt new Chapter 16, “Waivers and Variances,” Iowa Administrative Code.

Chapter 16 is intended to provide guidelines under which the Board will consider waivers and variances to its rules, as allowed in the Iowa Administrative Procedure Act and mandated by the Governor’s Executive Order Number 11.

Public comments concerning the proposed amendment will be accepted until 4 p.m. on April 10, 2001. Interested persons may submit written or oral comments by contacting Office of the Deputy Commissioner of Insurance, Division of Insurance, 330 Maple Street, Des Moines, Iowa 50319; telephone (515)281–5705.

These rules do not mandate additional combined expenditures exceeding $100,000 by all affected political subdivisions or agencies and entities which contract with political subdivisions to provide services.

These rules are intended to implement Iowa Code section 17A.9A.

The following new chapter is proposed.

CHAPTER 16
WAIVERS AND VARIANCES

591—16.1(17A) Definition. The term “waiver” as used in this chapter means a described waiver or variance from a specific rule or set of rules of this board applicable only to an identified person on the basis of the particular circumstances of that person.

591—16.2(17A) Scope of chapter. This chapter creates standards and a process for granting individual waivers from rules adopted by the board in situations where no other more specifically applicable law provides for waivers. To the extent another more specific provision of law 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.

591—16.3(17A) Applicability. This chapter applies only to waivers of those board rules that are within the exclusive rule–making authority of the board.

591—16.4(17A) Compliance with law. The board may not issue a waiver under this chapter unless 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.

591—16.5(17A) Criteria for a waiver. The board may issue an order, in response to a completed petition, or on its own motion, granting a waiver from a rule adopted by the board, in whole or in part, as applied to the circumstances of a specified person, if the board finds that the granting of such a waiver would not exceed the authority for granting waivers contained in Iowa Code section 17A.9A, 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. All of 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; and

• The waiver, if related to administrative deadlines, would not jeopardize the overall goals of the deadline as established.

In determining whether a waiver would be consistent with the public interest, the board 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.

591—16.6(17A) Board discretion. The final decision to grant or deny a waiver shall be vested in the board. This decision shall be made at the discretion of the board upon consideration of relevant facts.

591—16.7(17A) Burden of persuasion. The burden of persuasion shall be on the petitioner to demonstrate by clear and convincing evidence that the board should exercise its discretion to grant the petitioner a waiver based upon the criteria contained in this chapter.

591—16.8(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 entity or person for whom a waiver is being requested. To the extent applicable, the petition should also include the site registration number(s) and LUST number(s) 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 being requested.

3. The specific waiver requested, including a description of the precise scope and operative period to 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 board relating to the activity affected by the proposed waiver or variance, including any notices of violation, contested case hearings, or investigative reports relating to the activity within the last five years.

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

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

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

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

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

11. If there is a contested case concerning the person, site or matter for which the petition for waiver is being made, such petition must include a signed statement consenting to ex parte communications between the board and its counsel concerning the facts and issues of the petition. If there is a contested case filed subsequent to this petition for waiver, such a statement must be provided at that time.

591—16.9(17A) Additional information. Prior to issuing an order granting or denying a waiver, the board may request additional information from the petitioner relative to the petition and surrounding circumstances. If the petition was not filed in a contested case, the board may, on its own motion or at the petitioner’s request, schedule a telephonic or in–person meeting between the petitioner and a representative from the board to discuss the petition and surrounding circumstances.

591—16.10(17A) Notice. The board shall acknowledge the petition upon receipt. The petitioner 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. The petitioner shall provide to the board a written statement attesting to the fact that proper notice has been provided and to whom that notice has been provided. In addition, the board may give notice to other persons.

591—16.11(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 board proceedings for a waiver only when the board so provides by rule or order or is required to do so by statute or other binding law.

591—16.12(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.

591—16.13(17A) Conditions. The board may condition the granting of the waiver on such conditions that the board deems to be reasonable and appropriate in order to achieve the objectives of the particular rule in question through alternative means.

591—16.14(17A) Time for ruling. The board shall grant or deny a petition for a waiver as soon as practicable but, in any event, shall do so within 120 days of its receipt unless the petitioner agrees to a later date. However, if a petition is filed in a contested case, then the board may grant or deny the petition at the time the final decision in that contested case is issued.

591—16.15(17A) When deemed denied. Failure of the board to grant or deny a petition within the required time period shall be deemed a denial of that petition by the board. However, the board shall remain responsible for issuing an order denying a waiver as required by this rule.

591—16.16(17A) Service of orders. Within 30 days of its issuance, any order issued under this chapter shall be transmitted to the petitioner or the person to whom the order pertains and to any other person entitled to such notice by any provision of law. The petitioner shall ensure that notice of the order 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 order. The petitioner shall provide a written statement attesting to the fact that proper notice has been provided and to whom that notice has been provided. In addition, the board may give notice to other persons.

591—16.17(17A) Record keeping. Subject to the provisions of Iowa Code section 17A.3(1)“e,” the board 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 address identified in 591—1.4(455G) during regular business hours.

591—16.18(17A) Term and renewals of waivers. Waivers issued pursuant to this chapter will not be on a permanent basis, unless specified as permanent. If a waiver is issued without either a specified time frame or a statement clearly identifying the specified waiver as permanent, the waiver will be deemed to be for a duration of 120 days. A waiver will automatically expire if no action is taken by the board to renew the waiver. Any action to renew the waiver must be in writing and specify terms and conditions of the renewal.

591—16.19(17A) Cancellation of a waiver. A waiver issued by the board pursuant to this chapter may be withdrawn, canceled, or modified if, after appropriate notice and hearing, the board issues an order finding any of the following:

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

2. The alternative means for ensuring that the public health, safety, and welfare will be adequately protected after issuance of the waiver order has 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.

591—16.20(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.

591—16.21(17A) Defense. After the board 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.

591—16.22(17A) Appeals. Appeals within the board from a decision granting or denying a waiver shall be in accordance with Iowa Code chapter 17A and board rules. These appeals shall be taken within ten 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.

Pursuant to the authority of Iowa Code section 147.76, the Board of Examiners for Nursing Home Administrators hereby gives Notice of Intended Action to rescind Chapter 141, “Licensure of Nursing Home Administrators,” and adopt new Chapter 141 with the same title; rescind Chapter 142, “Nursing Home Administration Education Programs”; amend Chapter 143, “Continuing Education for Nursing Home Administration”; adopt new Chapter 144, “Discipline for Nursing Home Administrators”; and adopt new Chapter 145, “Fees,” Iowa Administrative Code.

The proposed amendments adopt a new chapter for licensure, adopt a new chapter for discipline, change the word “penalty” to “late” in the rule regarding reinstatement of a lapsed license, amend criteria for completion of continuing education and adopt a new chapter for fees.

The Division revised these rules according to Executive Order Number 8. The Division sent 13 letters to the public for comment and 6 letters were received in return. Division staff also had input on these rules. The comments received were discussed by the Board and decisions were based on need, clarity, intent and statutory authority, cost and fairness.

Any interested person may make written comments on the proposed amendments no later than April 11, 2001, addressed to Rosalie Steele, Professional Licensure Division, Department of Public Health, Lucas State Office Building, Des Moines, Iowa 50319–0075.

A public hearing will be held on April 11, 2001, from 9 to 11 a.m. in the Fifth Floor Board Conference Room, Lucas State Office Building, at which time persons may present their views either orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of the proposed amendments.

These amendments are intended to implement Iowa Code chapters 17A, 147, 155 and 272C.

The following amendments are proposed.

ITEM 1. Rescind 645—Chapter 141 and adopt in lieu thereof the following new chapter:

CHAPTER 141
LICENSURE OF NURSING HOME ADMINISTRATORS

645—141.1(155) Definitions. For purposes of these rules, the following definitions shall apply:

“Administrator” means a licensed nursing home administrator.

“Board” means the board of examiners for nursing home administrators.

“CNHA” means a certified nursing home administrator.

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

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

“License expiration date” means December 31 of odd–numbered years.

“NAB” means National Association of Boards of Examiners of Long Term Care Administrators.

141.2(1) The following criteria shall apply to licensure:

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

b. An applicant shall complete the application form according to the instructions contained in the application. If the application is not completed according to the instructions, the application will not be reviewed by the board;

c. Each application shall be accompanied by the appropriate fees payable by check or money order to the Board of Examiners for Nursing Home Administrators. The fees are nonrefundable;

d. The applicant shall have official copies of academic transcripts sent directly from the school(s) to the board;

e. The applicant shall provide satisfactory evidence of the completion of the long–term care practicum;

f. An applicant shall successfully pass the approved national examination;

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

h. Incomplete applications that have been on file in the board office for more than two years shall be:

(1) Considered invalid and shall be destroyed; or

(2) Maintained upon request of the applicant. The applicant is responsible for requesting that the file be maintained.

i. Notification of eligibility for licensure shall be sent to the licensee by the board.

141.2(2) The following criteria shall apply to the written examination:

a. In order to be eligible to take the written examination, the supporting data and documentation required by the board shall be completed and on file at the board office.

b. The supporting data and documentation must be received at least 30 days prior to the date the applicant desires board eligibility determination for the examination.

c. Notification shall be sent by the board office to the examination service of an applicant’s eligibility for the examination.

d. Each applicant who fails the national examination may apply to the board for reexamination. The applicant shall not take the national examination more than three times. If the applicant fails a third national examination, education in areas established by the board must be obtained before another examination will be allowed or a license is issued.

645—141.3(155) Educational qualifications. An applicant for licensure as a nursing home administrator shall fulfill the educational requirements of one of the following:

141.3(1) Applicants with degrees in health care administration, health services administration, nursing home administration or long–term care administration. An applicant for licensure to practice as a nursing home administrator shall possess a baccalaureate or postbaccalaureate degree in health care administration, health services administration, nursing home administration or long–term care administration from a college or university currently accredited by one of the following: a regional accrediting agency, an organization affiliated with the National Commission on Accrediting (Council of Post–secondary Accreditation), or the National Association of Boards of Examiners of Long Term Care Administrators. The practicum requirements are as follows:

a. The applicant shall complete 12 semester hours of long–term health care practicum (720 clock hours). There are nine areas of practicum requiring 80 clock hours each: social services; dietary; legal aspects and government organizations; nursing; environmental services; activities/community resources; business administration; administrative organization; and human resource management; or

b. The designated faculty of the academic program may verify completion of the required clock hours of practicum in writing to the board if the practicum is not a 12–semester–hour practicum; or

c. The school may waive up to 320 clock hours of practicum based on prior academic coursework or experience. The designated faculty shall provide written verification of completion of a minimum of 400 clock hours of practicum and that each of the nine required areas of practicum has been satisfied; or

d. Substitution of one year of long–term health care administration experience supervised by a licensed administrator may be allowed at the discretion of the board. Attestation of the supervised experience shall be supplied in writing by the supervising licensed administrator. The attestation shall verify the equivalent of the required 80 clock hours in each of the nine required areas of practicum; or

141.3(2) Applicants with degrees in other disciplines. An applicant shall possess a baccalaureate degree in any other discipline from a college or university currently accredited by a regional accrediting agency or organization affiliated with the National Commission on Accrediting (Council of Post–secondary Accreditation). The applicant’s coursework shall show satisfactory completion of the following:

a. Ten semester hours of business management, accounting or business law or any combination thereof;

b. Six semester hours of gerontology or aging–related coursework in disciplines including but not limited to the sciences and humanities;

c. Twelve semester hours in health care administration including but not limited to the areas of organizational management, regulatory management, human resources management, resident care management, environmental services management, and financial management; and

d. Practicum. The applicant shall complete a practicum as follows:

(1) The applicant shall complete 12 semester hours of long–term health care practicum (720 clock hours). There are nine areas of practicum requiring 80 clock hours each: social services; dietary; legal aspects and government organizations; nursing; environmental services; activities/community resources; business administration; administrative organization; and human resource management; or

(2) The designated faculty of the academic program may verify completion of the required clock hours of practicum in writing to the board if the practicum is not a 12–semester–hour practicum; or

(3) The school may waive up to 320 clock hours of practicum based on prior academic coursework or experience. The designated faculty shall provide written verification of completion of a minimum of 400 clock hours of practicum and that each of the nine required areas of practicum has been satisfied; or

(4) Substitution of one year of long–term health care administration experience supervised by a licensed administrator may be allowed at the discretion of the board. Attestation of the supervised experience shall be supplied in writing by the supervising licensed administrator. The attestation shall verify the equivalent of the required 80 clock hours in each of the nine required areas of practicum.

141.3(3) Foreign–trained applicants. Foreign–trained nursing home administrators shall:

a. Provide an equivalency evaluation of their educational credentials by International Educational Research Foundations, Inc., Credentials Evaluation Service, P.O. Box 3665, Culver City, California 90231–3665, telephone (310) 258–9451, Web site www.ierf.org, or E–mail at info@ierf. org. The professional curriculum must be equivalent to that stated in these rules. A candidate shall bear the expense of the curriculum evaluation.

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

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

141.4(1) The practicum experience shall be performed under the supervision of a preceptor in a licensed nursing home in accordance with the following:

a. The facility must have a licensed capacity of no fewer than 25 beds.

b. The facility cannot be owned or operated by a parent, spouse or sibling of the student.

c. The student may not be a provisional administrator of any facility during the time of the practicum.

d. The practicum experience shall be outside of designated work hours if the practicum student is also employed by the facility.

e. The practicum student may be compensated while completing the practicum experience.

f. The preceptor:

(1) Shall hold a current license in good standing as a nursing home administrator;

(2) Shall have at least two years’ experience as a licensed nursing home administrator;

(3) Shall be present in the facility during at least 75 percent of the student’s practicum; and

(4) Cannot be related to the student as a parent, spouse or sibling.

141.4(2) The board may grant waivers of the total practicum requirement based on previous life experience. Substitution of no less than one year of long–term health care administration experience may be allowed at the discretion of the board. Applications for waiver of the practicum may be obtained from the board office and shall be accompanied by supporting documentation, verified by both the applicant and the applicant’s employer.

645—141.5(155) Provisional license. Under certain limited circumstances, and only upon the filing of an application requesting approval, a provisional administrator may be appointed to serve as the administrator of a nursing home. A provisional administrator is considered a temporary appointment, and the person appointed may serve as an administrator for a period of time not to exceed six months. The six–month appointment runs from the date approved by the board, and the months in service do not need to be consecutive. Effective January 1, 1999, the person serving as a provisional administrator shall not be permitted to serve more than a total of six months in an entire career.

141.5(1) The limited circumstances under which the request for a provisional appointment shall be granted include the inability of the licensed administrator to perform the administrator’s duties, the death of the licensed administrator or circumstances which prevent the immediate transfer of the licensed administrator’s duties to another licensed administrator.

141.5(2) Applications for a provisional appointment shall be in writing on a form prescribed by the board. Applicants shall meet the following minimum qualifications:

a. Be at least 18 years of age.

b. Be employed on a full–time basis of no less than 32 hours per week to perform the duties of the nursing home administrator.

c. Be knowledgeable of the nursing home administrator’s domains of practice including resident care management, human resources management, financial management, environmental management, regulatory management and organizational management.

d. Be without a history of unprofessional conduct ordenial or disciplinary action against a license to practice nursing home administration or any other profession by any lawful licensing authority for reasons outlined in 645—Chapter 144.

141.5(3) The board expressly reserves the right to withdraw approval of a provisional appointment. Withdrawal of approval shall be based on information or circumstances warranting such action. The provisional administrator shall be notified in writing by certified mail.

645—141.6(155) Licensure by endorsement. An applicant who has been a licensed nursing home administrator under the laws of another jurisdiction shall file an application for licensure by endorsement with the board office. The board may receive by endorsement any applicant from the District of Columbia or another state, territory, province or foreign country who:

1. Submits to the board a completed application;

2. Pays the licensure fee;

3. Provides official copies of the academic transcripts sent directly from the school to the board office;

4. Shows evidence of licensure requirements similar to those required in Iowa pursuant to subrules 141.3(1) and 141.3(2);

5. Provides verifications of licenses from other states that have been sent directly from those states to the board office; and

6. Provides one of the following:

• The official NAB examination score sent directly from NAB to the board or from the state in which the applicant was first licensed; or

• Evidence of certification as a nursing home administrator (CNHA) in good standing with the American College of Health Care Administrators.

645—141.7(155) Licensure by reciprocal agreement. The board may enter into a reciprocal agreement with the District of Columbia or any state, territory, province or foreign country with equal or similar requirements for licensure of nursing home administrator applicants.

141.8(1) The biennial license renewal period for a license to practice nursing home administration shall begin on January 1 of each even–numbered year and end on December 31 of the next odd–numbered year. All licensees shall renew on a biennial basis.

141.8(2) A renewal of license application and continuing education report form to practice as a nursing home administrator licensee shall be mailed to the licensee at least 60 days prior to the expiration of the license. Failure to receive the renewal application shall not relieve the license holder of the obligation to pay the biennial renewal fee(s) on or before the renewal date.

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

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

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

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

141.8(3) Late renewal. If the renewal fee(s), continuing education report and renewal application are received within 30 days after the license expiration date, the late fee for failure to renew before expiration shall be charged.

141.8(4) When all requirements for license renewal are met, the licensee shall be sent a license renewal card by regular mail.

141.9(1) A licensee who is not engaged in practice in the state of Iowa may be granted a waiver of compliance and obtain a certificate of exemption upon written application to the board. The application shall contain a statement that the applicant will not engage in practice in the state of Iowa without first complying with all regulations governing reinstatement after exemption. The application for a certificate of exemption shall be submitted upon the form provided by the board. A licensee must hold a current license in order to apply for exempt status. The licensee shall apply for inactive status before the license expiration date.

141.9(2) Reinstatement of exempted, inactive practitioners. Inactive practitioners who have requested and been granted a waiver of compliance with the renewal requirements and who have obtained a certificate of exemption shall, prior to engaging in the practice of the profession in Iowa, satisfy the requirements for reinstatement as outlined in 645—143.10(272C).

141.9(3) Verifications of license(s) are required from any state in which the licensee has practiced since the Iowa license became inactive.

141.9(4) Inactive licensees may be required to meet with the board and, if through the interview process the board finds reasonable doubt that the licensee displays knowledge of the domains of practice, the board may require the applicant to successfully complete any or all of the minimum qualifications, which may include additional education or training for licensure prior to license reinstatement.

141.9(5) Licensees who were issued their initial licenses within six months prior to the renewal date shall not be required to renew their licenses until the renewal date two years later.

141.9(6) Reinstatement of inactive license after exemption. The following chart illustrates the requirements for reinstatement based on the length of time a license has been inactive.

141.10(1) If the renewal fee(s) and continuing education report are received more than 30 days after the license expiration date, the license is lapsed. An application for reinstatement must be filed with the board accompanied by the reinstatement fee, the renewal fee(s) for each biennium the license is lapsed and the late fee for failure to renew before expiration. The licensee may be subject to an audit of the licensee’s continuing education report.

141.10(2) Licensees who have not fulfilled the requirements for license renewal or for an exemption in the required time frame will have a lapsed license and shall not engage in the practice of nursing home administration. Practicing without a license may be cause for disciplinary action.

141.10(3) In order to reinstate lapsed licenses, licensees shall comply with all requirements for reinstatement as outlined in 645—143.6(272C).

141.10(4) Following reinstatement of a lapsed license, the license shall be renewed at the next scheduled renewal cycle.

141.10(5) Verifications of license(s) are required from any state in which the licensee has practiced since the Iowa license lapsed.

141.10(6) Any administrator who fails to renew a license within 90 days following the license expiration date may be required to meet with the board and, if through the interview process the board finds reasonable doubt that the licensee displays knowledge of the domains of practice, the board may require the applicant to successfully complete any or all of the minimum qualifications for licensure prior to license reinstatement.

141.10(7) Reinstatement of a lapsed license. The following chart illustrates the requirements for reinstatement based on the length of time a license has lapsed.

141.11(1) An applicant who has been denied licensure by the board may appeal the denial and request a hearing on the issues related to the licensure denial by serving a notice of appeal and request for hearing upon the board not more than 30 days following the date of mailing of the notification of licensure denial to the applicant. The request for hearing as outlined in these rules shall specifically describe the facts to be contested and determined at the hearing.

141.11(2) If an applicant who has been denied licensure by the board appeals the licensure denial and requests a hearing pursuant to this rule, the hearing and subsequent procedures shall be held pursuant to the process outlined in Iowa Code chapters 17A and 272C.

These rules are intended to implement Iowa Code chapters 17A, 147, 155, and 272C.

ITEM 2. Rescind and reserve 645—Chapter 142.

ITEM 3. Amend rule 645—143.6(272C), numbered paragraphs “3” and “5,” as follows:

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

5. Provides evidence of satisfactory completion of continuing education requirements during the period since the license lapsed completed within the two most recent bienniums prior to the date of application for reinstatement. The total number of continuing education hours required for license reinstatement is 40.

ITEM 4. Amend paragraph 143.10(4)“b” as follows:

b. Completion of 40 hours of approved continuing education. The continuing education hours shall be completed within the two most recent bienniums prior to the date of application for reinstatement.

ITEM 5. Adopt new 645—Chapter 144 as follows:

CHAPTER 144
DISCIPLINE FOR NURSING
HOME ADMINISTRATORS

645—144.1(147,155,272C) Grounds for discipline. The board may impose any of the disciplinary sanctions set forth in rule 645—13.1(272C), including civil penalties in an amount not to exceed $1,000, when the board determines that a licensee is guilty of any of the following acts or offenses:

144.1(1) Obtaining or attempting to obtain a license by fraud or deceit;

144.1(2) Professional incompetence;

144.1(3) Knowingly making misleading, deceptive, untrue or fraudulent representations in the practice of nursing home administration or engaging in unethical conduct or practice harmful or detrimental to the public. Proof of actual injury need not be established;

144.1(4) Habitual intoxication or addiction to the use of drugs;

144.1(5) Conviction of a felony that is substantially related to the qualifications, functions or duties of a nursing home administrator and is evidence of unfitness to perform as a nursing home administrator in a manner consistent with protecting the public health, safety and welfare, in the courts of this state or any other state, territory, country or of the United States. As used in this paragraph, “conviction of a felony” shall include a conviction of an offense which if committed in this state would be deemed a felony under either state or federal law, without regard to its designation elsewhere. A copy of the record of conviction or plea of guilty shall be conclusive as evidence;

144.1(6) Revocation, suspension or annulment of a license to practice nursing home administration or another profession by any lawful licensing authority; or other disciplinary action taken against the license by any lawful licensing authority; or denial of a license or refusal of the renewal of a license by any lawful licensing authority pursuant to disciplinary proceedings;

144.1(7) Willful or repeated violations of any statute, rule or regulation pertaining to a nursing home;

144.1(8) Knowingly aiding, assisting, procuring, or advising any person to practice nursing home administration contrary to this chapter or to the rules and regulations of the board; or knowingly performing any act which in any way aids, assists, procures, advises, or encourages any unlicensed person or entity to practice nursing home administration;

144.1(9) Failure to report to the board every adverse judgment in a professional or occupational malpractice action to which the licensee is a party and every settlement of a claim against the licensee alleging malpractice;

144.1(10) Use of untrue or improbable statements in advertisements;

144.1(11) Failure to report to the board in writing a change of name or address within 60 days after the change occurs;

144.1(12) Any falsification or misrepresentation contained in any report or document attesting to the facts, conditions and activities of the internship or work experience and submitted by the applicant, administrator/preceptor or other participants may be grounds for denial of license or for suspension or revocation of the nursing home administrator license in addition to fines and any other penalties provided by law.

This rule is intended to implement Iowa Code chapters 147, 155, and 272C.

ITEM 6. Adopt new 645—Chapter 145 as follows:

CHAPTER 145

FEES

645—145.1(147,155) License fees. All fees are nonrefundable.

145.1(1) Licensure fee for license to practice nursing home administration is $100.

145.1(2) Biennial license renewal fee for each license for each biennium is $50.

145.1(3) Late fee for failure to renew before expiration is $50.

145.1(4) Reinstatement fee for a lapsed license or an inactive license is $50.

145.1(5) Duplicate license fee is $10.

145.1(6) Verification of license fee is $10.

145.1(7) Returned check fee is $15.

145.1(8) Disciplinary hearing fee is a minimum of $75.

145.1(9) Provisional license fee is $100.

This rule is intended to implement Iowa Code section 147.80 and Iowa Code chapter 155.

Pursuant to the authority of Iowa Code sections 17A.3 and 216A.54, the Division on the Status of Women hereby gives Notice of Intended Action to amend Chapter 5, “Iowans in Transition,” Iowa Administrative Code.

The adoption of a new definition of “Iowan in transition” will provide the opportunity for programs to also serve single parents along with displaced homemakers and female offenders effective in the next grant cycle beginning July 1, 2001, for fiscal year 2002.

Any interested person may make written suggestions or comments on this proposed amendment on or before April 10, 2001. Such written materials should be directed to the Administrator, Department of Human Rights, Division on the Status of Women, 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 April 10, 2001, at 10 a.m. in the Administrator’s Office, Division on the Status of Women, 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 amendment.

Any persons who intend to attend the public hearing and have special requirements such as hearing or mobility impairments should contact the Division on the Status of Women in advance of the hearing and advise of specific needs.

This amendment is intended to implement Iowa Code section 216A.57.

The following amendment is proposed.

Rescind 435—5.1(216A), definition of “Iowan in transition,” and adopt the following new definition in lieu thereof:

“Iowan in transition” means an individual who is unemployed or underemployed, and who has had, or would apparently have, difficulty finding appropriate paid employment; and

1. Is a displaced homemaker who has worked principally in the home providing unpaid household services for family members, and is or has been

• Dependent on the income of another family member but is no longer supported by that income, or

• Dependent on government assistance, or

• Supported as the parent of a minor; or

2. Is a single parent; or

3. Is a female offender, or a female who has a record of criminal offense.

Pursuant to the authority of Iowa Code subsection 125.7(4), the Substance Abuse Commission hereby gives Notice of Intended Action to amend Chapter 3, “Licensure Standards for Substance Abuse Treatment Programs,” and adopt a new Chapter 10, “Waivers or Variances from Administrative Rules,” Iowa Administrative Code.

The proposed new chapter is intended to implement Executive Order Number 11 executed and signed by the Governor on September 14, 1999. The Executive Order directs state rule–making authorities to adopt uniform rules regarding waivers from administrative rules. This new chapter is in response to that order. The chapter is also intended to implement Iowa Code section 17A.9A, which establishes additional terms and conditions concerning the issuance of waivers.

Any interested person may make written comments or suggestions on the proposed amendments on or before April 11, 2001. Such written materials should be directed to Janet Zwick, Director, Division of Health Promotion, Prevention, and Addictive Behaviors, Department of Public Health, Lucas State Office Building, 321 E. 12th Street, Des Moines, Iowa 50319–0075.

A public hearing on the proposed amendments will be held on April 11, 2001, at 1 p.m. in Room 417, Lucas State Office Building, 321 E. 12th Street, Des Moines, Iowa.

These amendments are intended to implement Iowa Code section 17A.9A and Iowa Code chapter 125.

The following amendments are proposed.

ITEM 1. Rescind and reserve rule 643—3.17(125).

ITEM 2. Adopt the following new chapter:

CHAPTER 10

WAIVERS OR VARIANCES FROM

ADMINISTRATIVE RULES

643—10.1(17A,125) Definitions. For purposes of this chapter:

“Commission” means the commission on substance abuse.

“Division director” means the director of the division of health promotion, prevention, and addictive behaviors of the department of public health.

“Waiver” or “variance” means action by the commission which suspends in whole or in part the requirements or provisions of a rule as applied to an identified person on the basis of the particular circumstances of that person. For simplicity, the term “waiver” shall include both a “waiver” and a “variance.”

643—10.2(17A,125) Scope of chapter. This chapter outlines generally applicable standards and a uniform process for the granting of individual waivers from rules adopted by the commission in situations when no other more specifically applicable law provides for waivers. To the extent another more specific provision of law governs the issuance of a waiver from a particular rule, the more specific provision shall supersede this chapter with respect to any waiver from that rule.

643—10.3(17A,125) Applicability. The commission may grant a waiver from a rule only if the commission has jurisdiction over the rule and the requested waiver is consistent with applicable statutes, constitutional provisions, or other provisions of law. The commission may not waive requirements created or duties imposed by statute.

643—10.4(17A,125) Criteria for waiver or variance. In response to a petition completed pursuant to rule 643— 10.6(17A,125), the commission may in its sole discretion issue an order waiving in whole or in part the requirements of a rule if the commission finds, based on clear and convincing evidence, all of the following:

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

2. The waiver from the requirements of the rule in the specific case would not prejudice the substantial legal rights of any person;

3. The provisions of the rule subject to the petition for a waiver are not specifically mandated by statute or another provision of law; and

4. Substantially equal protection of public health, safety, and welfare will be afforded by a means other than that prescribed in the particular rule for which the waiver is requested.

643—10.5(17A,125) Filing of petition. A petition for a waiver must be submitted in writing to the commission as follows:

10.5(1) Application for licensure. If the petition relates to a licensure application, the petition shall be made in accordance with the filing requirements for the license in question and submitted to the division director.

10.5(2) Contested cases. If the petition relates to a pending contested case, the petition shall be filed in the contested case proceeding, using the caption of the contested case, and submitted to the division director.

10.5(3) Other. If the petition does not relate to an application for licensure or a pending contested case, the petition may be submitted to the division director.

643—10.6(17A,125) Content of petition. A petition for waiver shall include the following information where applicable and known to the requester:

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

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

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

4. The relevant facts that the petitioner believes would justify a waiver under each of the four criteria described in 643—10.4(17A,125). This statement shall include a signed statement from the petitioner attesting to the accuracy of the facts provided in the petition and a statement of reasons that the petitioner believes will justify a waiver.

5. A history of any prior contacts between the commission and the petitioner relating to the regulated activity or license affected by the proposed waiver, including a description of each affected license held by the requester, any notices of violation, contested case hearings, or investigative reports relating to the regulated activity or license within the last five years.

6. Any information known to the requester regarding the commission’s treatment of similar cases.

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

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

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

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

643—10.7(17A,125) Additional information. Prior to issuing an order granting or denying a waiver, the commission 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 commission may, on its own motion or at the petitioner’s request, schedule a telephonic meeting, videoconference, or in–person meeting between the petitioner and the division director, a committee of the commission, or a quorum of the commission.

643—10.8(17A,125) Notice. The commission shall acknowledge a petition upon its receipt in the division director’s office. The commission shall ensure that, within 30 days of the receipt of the petition, notice of the pending petition and a concise summary of its contents have been provided to all persons to whom notice is required by any provision of law. In addition, the commission may give notice to other persons. To accomplish this notice provision, the commission may require the petitioner to serve the notice on all persons to whom notice is required by any provision of law and provide a written statement to the commission attesting that notice has been provided.

643—10.9(17A,125) Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings shall apply to any petition for a waiver filed within a contested case, and shall otherwise apply to agency proceedings for a waiver only when the commission so provides by rule or order or is required to do so by statute.

643—10.10(17A,125) Ruling. An order granting or denying a waiver shall be in writing and shall contain a reference to the particular person and rule or portion thereof to which the order pertains, a statement of the relevant facts and reasons upon which the action is based, and a description of the precise scope and duration of the waiver if one is issued.

10.10(1) Commission discretion. The final decision on whether the circumstances justify the granting of a waiver shall be made at the sole discretion of the commission upon consideration of all relevant factors. Each petition for a waiver shall be evaluated by the commission based on the unique, individual circumstances set out in the petition.

10.10(2) Burden of persuasion. The burden of persuasion rests with the petitioner to demonstrate by clear and convincing evidence that the commission should exercise its discretion to grant a waiver from a commission rule.

10.10(3) Narrowly tailored. A waiver, if granted, shall provide the narrowest exception possible to the provisions of a rule.

10.10(4) Administrative deadlines. When the rule from which a waiver is sought establishes administrative deadlines, the commission shall balance the special individual circumstances of the petitioner with the overall goal of uniform treatment of all similarly situated persons.

10.10(5) Conditions. The commission may place any condition on a waiver that the commission finds desirable to protect the public health, safety, and welfare.

10.10(6) Time period of waiver. A waiver shall not be permanent unless the petitioner can show that a temporary waiver would be impracticable. If a temporary waiver is granted, there is no automatic right to renewal. At the sole discretion of the commission, a waiver may be renewed if the commission finds that grounds for a waiver continue to exist.

10.10(7) Time for ruling. The commission shall grant or deny a petition for a waiver as soon as practicable but, in any event, shall do so within 120 days of its receipt, unless the petitioner agrees to a later date. However, if a petition is filed in a contested case, the commission shall grant or deny the petition no later than the time at which the final decision in that contested case is issued.

10.10(8) When deemed denied. Failure of the commission to grant or deny a petition within the required time period shall be deemed a denial of that petition by the commission. However, the commission shall remain responsible for issuing an order denying a waiver.

10.10(9) Service of order. Within seven days of its issuance, any order issued under this chapter shall be transmitted to the petitioner or the person to whom the order pertains, and to any other person entitled to such notice by any provision of law.

643—10.11(17A,125) Public availability. All orders granting or denying a waiver petition shall be indexed, filed, and available for public inspection as provided in Iowa Code section 17A.3. Petitions for a waiver and orders granting or denying waiver petitions are public records under Iowa Code chapter 22. Some petitions or orders may contain information the commission is authorized or required to keep confidential. The commission may accordingly redact confidential information from petitions or orders prior to public inspection.

643—10.12(17A,125) Summary reports. Semiannually, the commission shall prepare a summary report identifying the rules for which a waiver has been granted or denied, the number of times a waiver was granted or denied for each rule, a citation to the statutory provisions implemented by these rules, and a general summary of the reasons justifying the commission’s actions on waiver requests. If practicable, the report shall detail the extent to which the granting of a waiver has affected the general applicability of the rule itself. Copies of this report shall be available for public inspection and shall be provided semiannually to the administrative rules coordinator and the administrative rules review committee.

643—10.13(17A,125) Cancellation of a waiver. A waiver issued by the commission pursuant to this chapter may be withdrawn, canceled, or modified if, after appropriate notice and hearing, the commission issues an order finding any of the following:

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

2. The alternative means for ensuring that the public health, safety, and welfare will be adequately protected after issuance of the waiver order have been demonstrated to be insufficient; or

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

643—10.14(17A,125) Violations. Violation of a condition in a waiver order shall be treated as a violation of the particular rule for which the waiver was granted. As a result, the recipient of a waiver under this chapter who violates a condition of the waiver may be subject to the same remedies or penalties as a person who violates the rule at issue.

643—10.15(17A,125) Defense. After the commission issues an order granting a waiver, the order is a defense within its terms and the specific facts indicated therein for the person to whom the order pertains in any proceeding in which the rule in question is sought to be invoked.

643—10.16(17A,125) Judicial review. Judicial review of a commission’s decision to grant or deny a waiver petition may be taken in accordance with Iowa Code chapter 17A. Any appeal to district court shall be taken within 30 days from the date of issuance of the decision by the commission pursuant to Iowa Code section 17A.19.

These rules are intended to implement Iowa Code section 17A.9A and chapter 125.

In compliance with Iowa Code chapter 74A and section 12C.6, the committee composed of Treasurer of StateMichael L. Fitzgerald, Superintendent of Credit Unions James E. Forney, Superintendent of Banking Holmes Foster, and Auditor of State Richard D. Johnson have established today the following rates of interest for public obligations and special assessments. The usury rate for March is 7.25%.

INTEREST RATES FOR PUBLIC

OBLIGATIONS AND ASSESSMENTS

74A.2 Unpaid Warrants . . . . Maximum 6.0%

74A.4 Special Assessments . . . Maximum 9.0%

RECOMMENDED for 74A.3 and 74A.7: A rate equal to 75% of the Federal Reserve monthly published indices for U.S. Government securities of comparable maturities.

The rate of interest has been determined by a committee of the state of Iowa to be the minimum interest rate that shall be paid on public funds deposited in approved financial institutions. To be eligible to accept deposits of public funds of the state of Iowa, a financial institution shall demonstrate a commitment to serve the needs of the local community in which it is chartered to do business. These needs include credit services as well as deposit services. All such financial institutions are required to provide the committee with a written description of their commitment to provide credit services in the community. This statement is available for examination by citizens.

New official state interest rates, effective March 9, 2001, setting the minimums that may be paid by Iowa depositories on public funds are listed below.

TIME DEPOSITS

7–31 days Minimum 4.70%

32–89 days Minimum 4.60%

90–179 days Minimum 4.40%

180–364 days Minimum 4.40%

One year to 397 days Minimum 4.40%

More than 397 days Minimum 4.40%

These are minimum rates only. The one year and less are four–tenths of a percent below average rates. Public body treasurers and their depositories may negotiate a higher rate according to money market rates and conditions.

Inquiries may be sent to Michael L. Fitzgerald, Treasurer of State, State Capitol, Des Moines, Iowa 50319.

Pursuant to Iowa Code sections 17A.4, 476.1, 476.2, and 476.6 (2001), the Utilities Board (Board) gives notice that on February 21, 2001, the Board issued an order in Docket No. RMU–01–1, In re: Estimation and Proration of Natural Gas Bills.

The Board is proposing to amend 199 IAC 19.3(8) to require that natural gas bills that are based upon estimated consumption, rather than actual meter readings, include actual degree day and customer premises consumption history data in the calculation of the estimate and to allow customers to provide meter readings by telephone, electronic mail, or U.S. mail. The Board is also proposing to require rate–regulated public utilities to submit their procedures for calculating estimated bills and to notify the Board if those procedures are changed. The Board also proposes to strike the last two paragraphs of the subrule since they repeat the language in earlier paragraphs.

The Board is also proposing to amend 199 IAC 19.10(3) to require that periodic changes in a rate–regulated utility’s purchased gas adjustment (PGA) rate factors be prorated to become effective with usage on or after the date of change.

During the 2000–2001 heating season, many complaints have come to the Board concerning the calculation of customers’ natural gas bills. The extreme weather and the high market price of natural gas have focused attention on the Board’s rules and utility companies’ billing procedures. The primary focus of the complaints has been the methods used by the utility companies to estimate bills and the choice of some companies not to prorate customers’ bills based upon the PGA factor in effect when the gas was used.

The monthly billing periods of December 2000 and January 2001 were characterized by significant shifts in heating degree day levels. Certain natural gas utilities have estimated customer bills during these months using billing determinants from a prior period, without regard to whether the billing determinants are representative of the current billing period. Requiring that utilities compare current degree day data and customer premises consumption history should make the bill estimation procedures more equitable.

Under current practices of estimation, a customer’s bill may not reflect the actual degree days that existed during the billing period and the price of gas may depend more on the date the bill is prepared rather than on the price of gas on the date gas is consumed. The Board has received fewer complaints from customers of companies that prorate customer usage between PGA factors than from customers of those companies that do not. The Board has determined that these two proposed amendments will require that customer bills more equitably reflect the price of gas and the actual usage during the period of consumption, thus positively influencing customer perceptions of billing procedures.

Pursuant to Iowa Code section 17A.4(1)“a” and “b,” any interested person may file a written statement of position pertaining to the proposed amendments. The statement must be filed on or before April 12, 2001, by filing an original and ten copies in a form substantially complying with 199 IAC 2.2(2). All written statements should clearly state the author’s name and address and should make specific reference to this docket. All communications should be directed to the Executive Secretary, Iowa Utilities Board, 350 Maple Street, Des Moines, Iowa 50319–0069.

No oral presentation is scheduled at this time. Pursuant to Iowa Code section 17A.4(1)“b,” an oral presentation may be requested or the Board on its own motion after reviewing the statements may determine that an oral presentation should be scheduled.

These amendments are intended to implement Iowa Code sections 17A.4, 476.1, 476.2, and 476.6.

The following amendments are proposed.

ITEM 1. Amend subrule 19.3(8) as follows:

19.3(8) Readings and estimates. When a customer is connected or disconnected or the meter reading date causes a given billing period to deviate by more than 10 percent (counting only business days) from the normal meter reading period, such bill shall be prorated on a daily basis.

The utility may leave a meter reading form with the customer when access to meters cannot be gained. When access to meters cannot be gained, the utility may leave with the customer a meter reading form. The customer may provide the meter reading by telephone, electronic mail (if it is allowed by the utility), or by mail. If the form is not returned in time for the billing operation, an estimated bill may be rendered. If an actual meter reading cannot be obtained, the utility may render an estimated bill without reading the meter or supplying a meter reading form to the customer. Only in unusual cases or when approval is obtained from the customer shall more than three consecutive estimated bills be rendered.

ITEM 2. Amend subrule 19.10(3) as follows:

19.10(3) Periodic changes to purchased gas adjustment clause. Periodic purchased gas adjustment filings shall be based on the purchased gas adjustment customer classifications and groupings previously approved by the board. Changes in the customer classification and grouping on file are not automatic and require prior approval by the board.

Periodic filings shall include all worksheets and detailed supporting data used to determine the amount of the adjustment.

Changes in factors S or C may not be made in periodic purchased gas filings except to recognize changes between pipeline and nonpipeline purchases. A change in factors D, N, or Z may be made in periodic filings and will be deemed approved if it conforms to the annual purchased gas filing or if it conforms to the principles set out in 19.10(5) and 19.10(6).

The utility shall implement automatically all purchased gas adjustment changes which result from changes Rc, Rd, Rn, or Rz equal to or greater than .5 cents per ccf or therm immediately with concurrent board notification with adequate information to calculate and support the change. Purchased gas adjustment changes of less than .5 cents per ccf or therm shall be required with concurrent board notification if the last purchased gas adjustment occurred 30 days or more prior to the change. The purchased gas adjustment shall be calculated separately for each customer classification or grouping.

Unless otherwise ordered by the board, a rate–regulated utility’s purchased gas adjustment rate factors shall be adjusted as purchased gas costs change and shall recover from the customers only the actual costs of purchased gas and other currently incurred charges associated with the delivery, inventory or reservation of natural gas. Such periodic changes shall become effective with usage on or after the date of change.

If a supplier’s entitlement charge is zero, the same percentage of current demand charges shall be allocated to each customer class or grouping as the average of demand charges allocated during the last 12–month period for which entitlement rates were not zero. “Current demand charges” means the amount (D ? Rd) used in computing the formula set out in 19.10(1).

Pursuant to the authority of Iowa Code sections 17A.3 and 169.5(8), the Board of Veterinary Medicine gives Notice of Intended Action to adopt new Chapter 14, “Waiver or Variance of Rules,” Iowa Administrative Code.

These proposed rules are intended to comply with Executive Order Number 11 and with Iowa Code section 17A.9A, which provides for waivers or variances of administrative rules. These rules are based on the Attorney General’s uniform waiver rules.

Any interested person may make written suggestions or comments on the proposed rules prior to 4:30 p.m. on April 10, 2001. Such written material should be directed to Dr. John Schiltz, DVM, Secretary, Board of Veterinary Medicine, Wallace State Office Building, Des Moines, Iowa 50319. Comments may also be submitted by fax to (515) 281–4282 or by E–mail to John.Schiltz@idals.state.ia.us.

These rules are intended to implement Iowa Code section 17A.9A and chapter 169.

The following new chapter is proposed.

CHAPTER 14
WAIVER OR VARIANCE OF RULES

811—14.1(17A,169) Definition. For purposes of this chapter, “a waiver or variance” means action by the board which suspends in whole or in part the requirements or provisions of a rule as applied to an identified person on the basis of the particular circumstances of that person. For simplicity, the term “waiver” shall include both a “waiver” and a “variance.”

811—14.2(17A,169) Scope of chapter. This chapter outlines generally applicable standards and a uniform process for the granting of individual waivers from rules adopted by the board in situations where no other more specifically applicable law provides for waivers. To the extent another more specific provision of law governs the issuance of a waiver from a particular rule, the more specific provision shall supersede this chapter with respect to any waiver from that rule.

811—14.3(17A,169) Applicability. The board may grant a waiver from a rule only if the board has jurisdiction over the rule and the requested waiver is consistent with applicable statutes, constitutional provisions, or other provisions of law. The board may not waive requirements created or duties imposed by statute.

811—14.4(17A,169) Criteria for waiver or variance. In response to a petition completed pursuant to rule 811— 14.6(17A,169), the board may in its sole discretion issue an order waiving in whole or in part the requirements of a rule if the board finds, based on clear and convincing evidence, all of the following:

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

2. The waiver from the requirements of the rule in the specific case would not prejudice the substantial legal rights of any person.

3. The provisions of the rule subject to the petition for a waiver are not specifically mandated by statute or another provision of law.

4. Substantially equal protection of public health, safety, and welfare will be afforded by a means other than that prescribed in the particular rule for which the waiver is requested.

811—14.5(17A,169) Filing of petition. A petition for a waiver must be submitted in writing to the board as follows:

14.5(1) License application. If the petition relates to a license application, the petition shall be made in accordance with the filing requirements for the license in question.

14.5(2) Contested cases. If the petition relates to a pending contested case, the petition shall be filed in the contested case proceeding, using the caption of the contested case.

14.5(3) Other. If the petition does not relate to a license application or a pending contested case, the petition may be submitted to the board’s executive secretary.

811—14.6(17A,169) Content of petition. A petition for waiver shall include the following information where applicable and known to the requester:

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

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

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

4. The relevant facts that the petitioner believes would justify a waiver under each of the four criteria described in rule 811—14.4(17A,169). This statement shall include a signed statement from the petitioner attesting to the accuracy of the facts provided in the petition and a statement of reasons that the petitioner believes will justify a waiver.

5. A history of any prior contacts between the board and the petitioner relating to the regulated activity or license affected by the proposed waiver, including a description of each affected license held by the requester, any notices of violation, contested case hearings, or investigative reports relating to the regulated activity or license within the last five years.

6. Any information known to the requester regarding the board’s treatment of similar cases.

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

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

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

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

811—14.7(17A,169) Additional information. Prior to issuing an order granting or denying a waiver, the board may request additional information from the petitioner relative to the petition and surrounding circumstances. If the petition was not filed in a contested case, the board may, on its own motion or at the petitioner’s request, schedule a telephonic or in–person meeting between the petitioner and the board’s executive secretary, a committee of the board, or a quorum of the board.

811—14.8(17A,169) Notice. The board shall acknowledge a petition upon receipt. The board shall ensure that, within 30 days of the receipt of the petition, 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. In addition, the board may give notice to other persons. To accomplish this notice provision, the board may require the petitioner to serve the notice on all persons to whom notice is required by any provision of law and provide a written statement to the board attesting that notice has been provided.

811—14.9(17A,169) Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings shall apply to any petition for a waiver filed within a contested case and shall otherwise apply to agency proceedings for a waiver only when the board so provides by rule or order or is required to do so by statute.

811—14.10(17A,169) Ruling. An order granting or denying a waiver shall be in writing and shall contain a reference to the particular person and rule or portion thereof to which the order pertains, a statement of the relevant facts and reasons upon which the action is based, and a description of the precise scope and duration of the waiver if one is issued.

14.10(1) Board discretion. The final decision on whether the circumstances justify the granting of a waiver shall be made at the sole discretion of the board upon consideration of all relevant factors. Each petition for a waiver shall be evaluated by the board based on the unique, individual circumstances set out in the petition.

14.10(2) Burden of persuasion. The burden of persuasion rests with the petitioner to demonstrate by clear and convincing evidence that the board should exercise its discretion to grant a waiver from a board rule.

14.10(3) Narrowly tailored exception. A waiver, if granted, shall provide the narrowest exception possible to the provisions of a rule.

14.10(4) Administrative deadlines. When the rule from which a waiver is sought establishes administrative deadlines, the board shall balance the special individual circumstances of the petitioner with the overall goal of uniform treatment of all similarly situated persons.

14.10(5) Conditions. The board may place any condition on a waiver that the board finds desirable to protect the public health, safety, and welfare.

14.10(6) Time period of waiver. A waiver shall not be permanent unless the petitioner can show that a temporary waiver would be impracticable. If a temporary waiver is granted, there is no automatic right to renewal. At the sole discretion of the board, a waiver may be renewed if the board finds that grounds for a waiver continue to exist.

14.10(7) Time for ruling. The board shall grant or deny a petition for a waiver as soon as practicable but, in any event, shall do so within 120 days of its receipt unless the petitioner agrees to a later date. However, if a petition is filed in a contested case, the board shall grant or deny the petition no later than the time at which the final decision in that contested case is issued.

14.10(8) When deemed denied. Failure of the board to grant or deny a petition within the required time period shall be deemed a denial of that petition by the board. However, the board shall remain responsible for issuing an order denying a waiver.

14.10(9) Service of order. Within seven days of its issuance, any order issued under this chapter shall be transmitted to the petitioner or the person to whom the order pertains and to any other person entitled to such notice by any provision of law.

811—14.11(17A,169) Public availability. All orders granting or denying a waiver petition shall be indexed, filed, and available for public inspection as provided in Iowa Code section 17A.3. Petitions for a waiver and orders granting or denying a waiver petition are public records under Iowa Code chapter 22. Some petitions or orders may contain information the board is authorized or required to keep confidential. The board may accordingly redact confidential information from petitions or orders prior to public inspection.

811—14.12(17A,169) Summary reports. Semiannually, the board shall prepare a summary report identifying the rules for which a waiver has been granted or denied, the number of times a waiver was granted or denied for each rule, a citation to the statutory provisions implemented by these rules, and a general summary of the reasons justifying the board’s actions on waiver requests. If practicable, the report shall detail the extent to which the granting of a waiver has affected the general applicability of the rule itself. Copies of this report shall be available for public inspection and shall be provided semiannually to the administrative rules coordinator and the administrative rules review committee.

811—14.13(17A,169) Cancellation of a waiver. A waiver issued by the board pursuant to this chapter may be withdrawn, canceled, or modified if, after appropriate notice and hearing, the board issues an order finding any of the following:

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

2. The alternative means for ensuring that the public health, safety, and welfare will be adequately protected after issuance of the waiver order have been demonstrated to be insufficient; or

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

811—14.14(17A,169) Violations. Violation of a condition in a waiver order shall be treated as a violation of the particular rule for which the waiver was granted. As a result, the recipient of a waiver under this chapter who violates a condition of the waiver may be subject to the same remedies or penalties as a person who violates the rule at issue.

811—14.15(17A,169) Defense. After the board issues an order granting a waiver, the order is a defense within its terms and the specific facts indicated therein for the person to whom the order pertains in any proceeding in which the rule in question is sought to be invoked.

811—14.16(17A,169) Judicial review. Judicial review of a board’s decision to grant or deny a waiver petition may be taken in accordance with Iowa Code chapter 17A.

These rules are intended to implement Iowa Code section 17A.9A and chapter 169.

Pursuant to the authority of Iowa Code section 234.6, the Department of Human Services hereby amends Chapter 65, “Administration,” appearing in the Iowa Administrative Code.

The Department of Human Rights, Division of Community Action Agencies, Bureau of Energy, administers the Low–Income Home Energy Assistance Program (LIHEAP) in Iowa. The Division enlisted the services of a firm located in Belmont, Massachusetts, to examine the impact of the unprecedented rapid increase in heating costs this winter. This firm examined prices charged for residential heating fuels in Iowa to determine what impact recent changes in those prices would have on low–income utility costs in Iowa. Based on this study and the significant increases in heating fuel costs, the Division of Community Action Agencies recommended that the heating and cooling standard used in the food stamp program should increase from $235 to $268.

Therefore, this amendment increases the standard utility allowance for food stamp households with heating or cooling expenses from $235 to $268 for the period beginning with food stamp issuances for April 2001 and ending with food stamp issuances for September 2002.

This amendment will help some of the food stamp households who have experienced an increase in heating costs and who are either under the shelter cap for food stamps or who are not subject to the shelter cap. The shelter cap does not apply to households with an elderly or disabled member. Some households with relatively high income and few expenses other than utility costs may not be eligible for any increase in benefits under the federally required formula for determining the amount of benefits.

This amendment does not provide for waiver in specified situations because this change confers a benefit on food stamp households and federal food stamp law does not allow for any waivers.

The Department of Human Services finds that notice and public participation are impracticable because the Department is attempting to provide immediate relief to families who are experiencing unprecedented increases in heating costs. Allowing notice and public participation would delay adoption of these rules another two months. Therefore, this amendment is filed pursuant to Iowa Code section 17A.4(2).

The Department finds that this amendment confers a benefit on food stamp households by responding to the rapid increase in the cost of heating that households are experiencing this winter. Therefore, this amendment is filed pursuant to Iowa Code section 17A.5(2)“b”(2).

The Council on Human Services adopted this amendment February 21, 2001.

This amendment is intended to implement Iowa Code section 234.12.

This amendment shall become effective April 1, 2001.

The following amendment is adopted.

Amend subrule 65.8(1) as follows:

65.8(1) Standard allowance for households with heating or air–conditioning expenses. When a household is receiving heating or air–conditioning service for which it is required to pay or receives assistance under the Low–Income Home Energy Assistance Act (LIHEAA) of 1981, the heating or air–conditioning standard shall be allowed. The standard allowance for utilities which include heating or air–conditioning costs is a single utility standard. This standard is $202 effective August 1, 1991. Beginning October 1, 1992, this allowance shall change annually effective each October 1 using the percent increase reported in the consumer price index monthly periodical for January for fuels and other utilities for the average percent increases for the prior year for all urban consumers United States city average. Any numeral after the second digit following the decimal point will be dropped in this calculation. Any decimal amount of .49 or under will be rounded down. Any decimal of .50 or more will be rounded up to the nearest dollar. The cent amount will be included when calculating the next year’s increase.

[Filed Emergency 2/21/01, effective 4/1/01]

[Published 3/21/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 3/21/01.

Pursuant to the authority of Iowa Code sections 17A.3 and 147.76, the Board of Nursing hereby adopts an amendment to Chapter 7, “Advanced Registered Nurse Practitioners,” Iowa Administrative Code.

This amendment permits advanced registered nurse practitioners to renew their ARNP registrations on line.

In compliance with Iowa Code section 17A.4(2), the Board finds that notice and public participation are unnecessary because the amendment conveys a public good by facilitating on–line ARNP registration.

The Board also finds, pursuant to Iowa Code section 17A.5(2)“b”(2), that the normal effective date of the amendment should be waived and this amendment should be made effective upon filing on March 2, 2001, as it confers a benefit on the working procedures of the Board.

The Board of Nursing adopted this amendment on March 1, 2001.

This amendment became effective on March 2, 2001.

This amendment is intended to implement Iowa Code chapters 17A, 147, 152 and 272C.

The following amendment is adopted.

Amend subrule 7.2(8), paragraph “c,” to read as follows:

c. Copy Documentation of current time–dated, advanced level certification by appropriate national certifying body.

[Filed Emergency 3/2/01, effective 3/2/01]

[Published 3/21/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 3/21/01.

Pursuant to the authority of Iowa Code section 97B.15, the Department of Personnel hereby amends Chapter 21, “Iowa Public Employees’ Retirement System,” Iowa Administrative Code.

The following amendments are adopted:

1. A new subrule 21.1(6) is adopted. IPERS incurs various fees and costs in the management of the retirement system’s investment portfolio. IPERS reports its investment returns net of all third–party investment management fees and costs in its annual financial report, and has predominantly utilized performance–based fee arrangements in contracting with investment management firms. Iowa Code section 97B.7(2)“b” places a limit on investment management expenses of 0.40 percent of the market value of the retirement system’s assets. The new subrule delineates standards for calculating IPERS’ compliance with this statutory expense limitation.

2. Subparagraph 21.5(1)“a”(19) is amended to clarify the scope of the prior change to this subparagraph. IPERS did not intend to bring high school students and students in lower grades into coverage with the prior change.

3. A new subparagraph 21.6(9)“d”(6) is adopted to implement current IPERS’ procedure for recording service credit when the Legislature changes a class of employees from regular to a special service classification.

4. Subrule 21.8(9) is amended to clarify the effect ofreemployment/reinstatement following employment–related litigation when a former employee takes a refund and gets reinstated before four months have passed. IPERS believes that situation is outside the scope of Iowa Code section 97B.53(4), which requires refunds to be repaid if a member is reemployed less than four months after taking a refund. The primary reason for IPERS’ requesting the four–month rule in the first place was to prevent refund manipulation, not this type of situation.

5. Subrule 21.11(6) is amended to clarify that benefits under the transition age 70 session law (2000 Iowa Acts, chapter 1077, section 74) cannot begin before the date the bill was signed into law.

6. Paragraph 21.13(10)“d” is amended to clarify IPERS’ procedures for members who apply for benefits calculated under Iowa Code section 97B.49D, the hybrid benefit formula. IPERS believes it would be beneficial and fairer to members if the system uses all years of service in determining the amount of the age reduction for the regular service component of the hybrid formula.

7. Subrule 21.22(2) is amended and new subrule 21.22(3) is adopted to clarify how to suspend and recalculate benefits when a disabled member (under Iowa Code section 97B.50(2)) returns to covered employment.

8. A new subrule 21.24(17) is adopted to reflect IPERS’ procedure for determining service purchase costs when a member is purchasing service that may or may not be of the same occupational class code as that upon which the retirement is calculated. This procedure ensures that the system is adequately compensated for the future payment liabilities related to the service being purchased.

9. Subparagraph 21.29(2)“a”(1) is rescinded and a new subparagraph is adopted to reflect the Iowa Supreme Court’s directive that social security numbers are not to be included in court orders, such as IPERS’ qualified domestic relations orders.

10. Subrule 21.30(3) is amended to clarify that the favorable experience dividend (FED) is not decreased for retired reemployed persons who choose to suspend their monthly retirement allowances to avoid having to repay excess IPERS benefits to the system.

11. Subrule 21.31(1), introductory paragraph; subrule 21.31(4), third unnumbered paragraph; and subrules 21.31(8), 21.31(12), and 21.31(13) are amended primarily to help facilitate the administration of the new special service members disability program and make it consistent with Iowa Code section 97B.50A.

12. IPERS requests that the Administrative Code Editor amend all citations to the provisions of 2000 Iowa Acts, chapter 1077, that have now been codified in the 2001 Iowa Code. Text of those changes is not included in this filing, except for the citations that occur in the text of the adopted amendments herein.

In compliance with Iowa Code section 17A.4(2), the Department finds that because these amendments are beneficial to members or implement important principles used in the current and ongoing administration of the system, notice and public participation prior to implementation are impracticable, unnecessary, and contrary to the public interest, and that these rules should be implemented immediately.

The Department also finds, pursuant to Iowa Code section 17A.5(2)“b,” that the normal effective date of the amendments should be waived and the amendments be made effective upon filing with the Administrative Rules Coordinator on March 2, 2001, because they confer benefits and remove restrictions, or are required to implement the system’s governing statutes. In conjunction with the Notice of Intended Action also published herein, this filing will give interested persons adequate notice of the changes and an opportunity to respond.

There are no waiver provisions included in these amendments because these are interpretive rules, or are rules that confer benefits or remove limitations.

The Department adopted these amendments on March 1, 2001.

These amendments are also published herein under Notice of Intended Action as ARC 0555B to allow public comment.

These amendments are intended to implement Iowa Code chapter 97B.

These amendments became effective March 2, 2001.

The following amendments are adopted.

ITEM 1. Adopt new subrule 21.1(6) as follows:

21.1(6) Calculation of investment management expenses limit. For purposes of determining that IPERS’ investment management expenses do not exceed four–tenths of one percent (0.40%) of the market value of the retirement fund, the amount appropriated under Iowa Code section 97B.7(2)“b,” market value and investment management expenses shall be determined as follows.

a. Determination of market value. The calculation of market value as of any single date shall be performed by IPERS’ investment staff using generally accepted accounting principles. For purposes of this subrule, market value shall be defined as the average of the quarterly ending market values for the fiscal year.

b. Investment management expenses shall include:

(1) Fees paid to advisory, management and consulting firms for the purpose of planning and executing the investment of the assets of the retirement fund;

(2) Fees and costs for the safekeeping of fund assets;

(3) Costs of monitoring:

1. The performance and compliance of retirement fund investments, and

2. The performance and compliance of advisory, management or consulting firms hired for the purpose of planning and executing the investment of the assets of the retirement fund;

(4) Costs of board meetings;

(5) Costs of board members’ travel and education;

(6) Costs of IPERS’ investment staff salaries, benefits, travel and education;

(7) Costs of any additional external legal, accounting or professional services authorized by the chief investment officer for the purpose of carrying out the requirements of Iowa Code section 97B.7; and

(8) Such other fees or costs as may be determined by the chief investment officer to be appropriately included by industry practice in the calculation of investment expenses.

c. Investment management expenses shall not include:

(1) Fees or costs that are capitalized in the cost of an investment including, but not limited to, fees paid to general partners in limited partnership investments, acquisition and closing fees for real estate investments, and brokerage commissions paid in purchasing and selling investment assets.

(2) Fees or costs that are netted against the income of commingled investment vehicles.

(3) Attorney fees, court costs, judgments, settlements, fines, penalties and similar costs of litigation or regulatory action relating to the investment of the assets of the retirement fund.

(4) Such other fees or costs as may be determined by the chief investment officer to be appropriately excluded by industry practice from the calculation of investment expenses.

ITEM 2. Amend subparagraph 21.5(1)“a”(19) as follows:

(19) Persons who are enrolled as students and whose primary occupations are as students are not covered. Full–time and part–time students who are employed part–time by the educational institutions where they are enrolled as students are not covered. Full–time and part–time students who are employed full–time or part–time by a covered employer other than the educational institution where they are enrolled are covered. Full–time employees who are enrolled as part–time students in the educational institution where they are employed are covered. Full–time and part–time student status is as defined by the individual educational institutions. Full–time and part–time employment status is as defined by the individual employers.

ITEM 3. Adopt new subparagraph 21.6(9)“d”(6) as follows:

(6) Except as otherwise directed in the implementing legislation or these rules, for incumbents of regular service positions reclassified as special service positions, all prior continuous service shall be treated as special service without requiring additional contributions.

ITEM 4. Amend subrule 21.8(9) as follows:

21.8(9) Reinstatement following an employment dispute. If an involuntarily terminated employee is reinstated in covered employment as a remedy for an employment dispute, the member may restore membership service credit for the period covered by the refund by repaying the amount of the refund plus interest within 90 days after the date of the order or agreement requiring reinstatement. A reinstatement following an employment dispute shall not constitute a violation of Iowa Code section 97B.53(4), even if the reinstatement occurs less than four months after the last wages for employment are paid. Accordingly, the restoration described above or, if later, a buy–back, shall be permitted but is not required. However, if the employee is retroactively reinstated and the previously reported termination is expunged, the reemployment shall be treated as falling within the scope of Iowa Code section 97B.53(4) and a previously paid refund shall be repaid with interest.

ITEM 5. Amend subrule 21.11(6) by adopting a new concluding unnumbered paragraph:

For members aged 70 or older who choose to retire while actively employed, and fall within the scope of 2000 Iowa Acts, chapter 1077, section 74, retroactive payments shall not be payable prior to May 2000.

ITEM 6. Amend paragraph 21.13(10)“d” as follows:

d. Age reduction. The portion of the member’s benefit calculated under this subrule that is based on the member’s regular service shall be subject to a reduction for early retirement in the same manner as is provided for regular service retirements. In calculating the age reduction to be applied to the portion of the member’s benefit based on the member’s regular service, the system shall use all quarters of service credit, including both regular and special service quarters.

ITEM 7. Amend subrule 21.22(2) and adopt new subrule 21.22(3) as follows:

21.22(2) If a member returns to covered employment after achieving a bona fide retirement, the benefits beingprovided to a the member under Iowa Code section 97B.50(2)“a” or “b” shall be suspended or reduced as follows. If the member has not attained the age of 55 upon reemployment, benefit payments shall be suspended in their entirety until the member subsequently terminates employment, applies for, and is approved to receive benefits under the provisions of Iowa Code chapter 97B. If the member is aged 55 or older upon reemployment, the member shall continue to receive the monthly benefit benefits adjusted as follows. payable to the member on the member’s initial retirement date based on the member’s age at the initial retirement date, years of membership service not to exceed 30, and benefit option, and subject to the applicable reductions for early retirement in place at the time of the initial retirement. Monthly benefits shall be calculated under the same benefit option that was first selected, based on the member’s age, years of service, and the applicable reductions for early retirement as of the month that the member returns to covered employment. The member’s benefit shall also be subject to the applicable provisions of Iowa Code section 97B.48A pertaining to reemployed retirees.

21.22(3) Upon terminating a reemployment that resulted in the suspension of all or a portion of the member’s disability retirement allowance, the member’s benefits shall be recomputed under Iowa Code section 97B.48A and 581— 21.19(97B). To requalify for a monthly retirement allowance under Iowa Code section 97B.50(2), the member must furnish a new or updated social security disability award letter, or other acceptable documentation from the Social Security Administration indicating that the member is currently eligible for social security disability benefits.

ITEM 8. Adopt new subrule 21.24(17) as follows:

21.24(17) If a member is attempting to purchase service credit under this rule, or any other rule relating to the purchase of service credit, the determination of the actuarial cost of the service purchase shall include assumptions based on the regular retirement formula, special service retirement formula, or hybrid retirement formula under which the member will actually retire.

ITEM 9. Rescind subparagraph 21.29(2)“a”(1) and adopt the following new subparagraph in lieu thereof:

(1) Clearly specifies the member’s name and last–known mailing address and the names and last–known mailing addresses of alternate payees, and requires that the social security numbers of the member and alternate payees be provided to IPERS in a cover letter or a court’s Confidential Information Form;

ITEM 10. Amend subrule 21.30(3) as follows:

21.30(3) Calculation of FED for individual members and beneficiaries. A member must be retired for one full year to qualify for a favorable experience dividend. In determining whether a member has been retired one full year, the department shall count the member’s first month of entitlement as the first month of the one–year period. The month in which the favorable experience dividend is payable shall be included in determining whether a member meets the eligibility requirements.

An eligible member’s favorable experience dividend shall be calculated by multiplying the retirement allowance payable to the retiree, beneficiary, or contingent annuitant for the previous December, or such other month as determined by the department, by 12, and then multiplying that amount by the number of complete years the member has been retired or would have been retired if living on the date the dividend is payable, and by the applicable percentage set by the department. The number of complete years the member has been retired shall be determined by rounding down to the nearest whole year.

ITEM 11. Amend subrule 21.31(1), introductory paragraph, as follows:

21.31(1) Initiation of disability claim. The disability claim process shall originate as an application to the system by the member. The application shall be forwarded to the system’s designated retirement benefits officer. An application shall be sent upon request to members who qualify pursuant to Iowa Code section 97B.50A(13). The application consists of the following sections which must be completed and returned to the system’s designated retirement benefits officer:

ITEM 12. Amend subrule 21.31(4), third unnumbered paragraph, as follows:

The medical board shall furnish its determination, test results, and supporting notes to the system no later than ten working days after the date of the examination. The medical board may use electronic signatures in fulfilling its reporting obligations under this rule.

ITEM 13. Amend subrule 21.31(8) as follows:

21.31(8) General benefits provisions. If an initial disability determination is favorable, benefits shall begin as of the date of the initial disability determination or, if earlier, the member’s last day on the payroll, but no more than six months of retroactive benefits are payable, subject to July 1, 2000, enactment date and the terms and conditions of Iowa Code section 97B.50A(13). “Last day on the payroll” shall include any form of authorized leave time, whether paid or unpaid. If a member receives short–term disability benefits from the employer while awaiting a disability determination hereunder, disability benefits will accrue from the date the members short–term disability payments are discontinued. If an initial favorable determination is appealed, the member shall continue to receive payments pending the outcome of the appeal.

Any member who is awarded disability benefits under 2000 Iowa Acts, Senate File 2411, section 51, Iowa Code section 97B.50A and this rule shall be eligible to elect any of the benefit options available under Iowa Code section 97B.51 as amended by 2000 Iowa Acts, Senate File 2411, section 52. All such options shall be the actuarial equivalent of the lifetime monthly benefit provided in 2000 Iowa Acts, Senate File 2411, section 51, subsections 2 and 3 Iowa Code section 97B.50A(2) and (3).

The disability benefits established under this subrule shall be eligible for the favorable experience dividends payable under Iowa Code section 97B.49F(2).

If the award of disability benefits is overturned upon appeal, the member may be required to repay the amount already received or, upon retirement, have payments suspended or reduced until the appropriate amount is recovered.

ITEM 14. Amend subrule 21.31(12) as follows:

21.31(12) Qualification for social security or railroad retirement disability benefits. Upon qualifying for social security or railroad retirement disability benefits, a member may contact the system to have the member’s disability benefits calculated under Iowa Code section 97B.50(2) as amended by 2000 Iowa Acts, Senate File 2411, section 49. The election to stop having benefits calculated under 2000 Iowa Acts, Senate File 2411, section 51, Iowa Code section 97B.50A and to start having benefits calculated under Iowa Code section 97B.50(2) as amended by 2000 Iowa Acts, Senate File 2411, section 49, must be in writing on forms developed or approved by the system, is irrevocable, and must be made within 60 days after the member receives written notification of eligibility for disability benefits from social security or railroad retirement and has commenced receiving such payments.

ITEM 15. Amend subrule 21.31(13) as follows:

21.31(13) Reemployment/income monitoring. A member who retires under 2000 Iowa Acts, Senate File 2411, section 51, Iowa Code section 97B.50A and this rule shall be required to supply a copy of a complete set of the member’s state and federal income tax returns, including all supporting schedules, by June 30 of each calendar year. IPERS may suspend the benefits of any such member if such records are not timely provided.

Only wages and self–employment income shall be counted in determining a member’s reemployment comparison amount, as adjusted for health care coverage for the member and the member’s dependents.

For purposes of calculating the income offsets required under 2000 Iowa Acts, Senate File 2411, section 51 Iowa Code section 97B.50A, IPERS shall convert any lump sum workers’ compensation award or similar lump sum awards for the same illnesses or injuries to an actuarial equivalent, as determined by IPERS’ actuary.

ITEM 16. Amend 581—Chapter 21 by converting the citations to 2000 Iowa Acts, chapter 1077, to the appropriate Iowa Code sections wherever they appear.

[Filed Emergency 3/2/01, effective 3/2/01]

[Published 3/21/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 3/21/01.

Pursuant to the authority of Iowa Code section 422.68, the Department of Revenue and Finance hereby amends Chapter 17, “Exempt Sales,” and Chapter 107, “Local Option Sales and Service Tax,” Iowa Administrative Code.

Item 1 amends Chapter 17 to provide a new rule, 701— 17.37(422,423), which exempts from sales tax the gross receipts from the sale of metered gas to residential customers which is billed during March and April of 2001, as set forth in Iowa Code section 422.45 as amended by 2001 Iowa Acts, House File 1. This new rule also sets forth an exemption from sales tax on the gross receipts from the sale of propane, heating oils and kerosene used for heating purposes, which are delivered beginning February 5, 2001, through March 31, 2001.

Item 2 amends 701—107.9(422B) by adding new numbered paragraphs “9” and “10” to reflect that local option taxes will not be imposed on the qualifying sales of metered gas and fuels during the specified exemption periods.

In compliance with Iowa Code section 17A.4(2), the Department finds that notice and public participation cannot be part of this rule–making process due to the narrow exemption provisions of this rule expiring March 31, 2001.

The Department also finds, pursuant to Iowa Code section 17A.5(2)“b”(2), that the normal effective date of the amendments should be waived and these amendments should be made effective upon filing due to the narrow exemption provisions of this rule and the authority to utilize emergency rule–making procedures conferred by 2001 Iowa Acts, House File 1, section 3.

The requirements contained in this filing are not subject to waiver and, therefore, the waiver provisions in Iowa Code section 17A.9A are not applicable.

The Department adopted these amendments on March 2, 2001.

These amendments became effective March 2, 2001.

These amendments are intended to implement Iowa Code section 422.45 as amended by 2001 Iowa Acts, House File 1.

The following amendments are adopted.

ITEM 1. Amend 701—Chapter 17 by adopting the following new rule:

701—17.37(422,423) Temporary exemption from sales tax on certain utilities. Effective February 5, 2001, the sales of specific energy sources are exempt from Iowa sales tax. Specified sales of energy are exempt from local option taxes as well; see rule 701—107.9(422B).

This exemption is not applicable to electricity, regardless of whether the electricity is used for heat. Electricity charges on utility bills will continue to be subject to Iowa sales and local option taxes. This exemption does not impact franchise fees. Franchise fees will continue to be imposed where applicable.

17.37(1) Definitions. The following definitions are applicable to this rule:

“Fuel” means a liquid source of energy for a residential dwelling, individual apartment unit, or condominium. “Fuel” includes propane, heating fuel, and kerosene. However, “fuel” does not include blended kerosene used as motor fuel or special fuel.

“Heat” means to increase or maintain the temperature of a residential dwelling, apartment unit, or condominium. Due to metered gases and fuels being used for other purposes in the dwelling, such as clothes dryers, gas stoves, and hot water heaters, this temporary exemption for metered gas used for heating purposes will also be extended to metered gases and fuels used for appliances in the residential dwelling, individually metered apartment unit, or individually metered condominium.

“Metered gas” means natural gas that is billed based on metered usage to provide energy to a residential dwelling, individually metered apartment unit, or individually metered condominium.

“Residential dwelling” means a structure used exclusively for human occupancy. This does not include commercial or agricultural structures, nor does it include nonresidential buildings attached to or detached from a residential dwelling, such as a detached garage or outbuilding. However, a garage attached to the residential dwelling that is used strictly for residential purposes will fall within the exemption. Also excluded from this exemption are classified commercial facilities. Classified commercial facilities include, but are not limited to, nursing homes, adult living facilities, assisted living facilities, halfway houses, charitable residential facilities, YMCA residential facilities, YWCA residential facilities, apartment units not individually metered, and group homes.

17.37(2) Metered gas exemption. Effective February 5, 2001, the gross receipts from the sale, furnishing or service of metered gas for residential customers which is used to provide energy to residential dwellings, individually metered apartment units, and individually metered condominiums, and that has a billing date of March 2001 or April 2001, are exempt from sales tax.

a. Billing date determinative. The determining factor for exemption for metered gas is the billing date for the metered gas. The exemption applies only to bills for metered gas which are dated in March 2001 or April 2001.

If a billing for the same usage period needs to be billed more than once due to loss of the original bill or some other error, the billing date of the original bill controls qualification for exemption of metered gas. For example, a utility company issues a billing for metered gas on January 8, 2001, and customer A loses the billing. Customer A calls the utility company in late February and requests that a new billing be issued. The utility company issues a replacement billing to customer A and the replacement bill has a date of March 3, 2001. The date of the original billing issued to customer A is determinative for the purpose of qualifying for the exemption. The fact that a previously taxable billing was reissued during an exemption period does not qualify the reissued billing for the exemption.

b. Qualifying usage. All metered gas billed to a residential customer during March 2001 and April 2001, which will be used as energy for a residential dwelling, individually metered apartment unit, or individually metered condominium as defined in this rule, qualifies for exemption. This exemption includes metered gas used to operate heating units, appliances, and hot water heaters.

c. Qualifying structures. Structures that include both residential and commercial usage on the same meter are subject to a proration formula to obtain the qualifying portion eligible for exemption. To qualify for proration, the structure must be used for both commercial and residential purposes. The purchaser must furnish an exemption certificate to the supplier with respect to that percentage of metered gas that is eligible for exemption. See 701—subrule 15.3(2). The exemption certificate must be in writing and detail how the percentages of exempt residential usage and taxable nonresidential usage were developed. For example, a gift shop, Miss Barb’s Bangles and Baubles, is located on the town square of Indianola, Iowa. Above the gift shop is an apartment. The gas usage of the apartment and the gift shop are monitored by one gas meter. The metered gas usage for the apartment is exempt, but usage for the gift shop is not. As a result, a proration formula must be established to separately reflect the metered gas usage of the apartment and the gift shop. In addition, the occupant of the apartment must provide an exemption certificate to the metered gas utility company to request the exemption. Approved exemption certificates are available upon request from the department.

It is important to note that the exemption for metered gas is limited to metered gas provided to residential customers. Consequently, a building containing apartment units is not considered to be residential. Instead, if it is classified as commercial property for property tax or any other purpose it is not eligible for exemption unless each apartment has a separate meter to monitor usage.

d. Credit. A utility company that sells, furnishes or services metered gas to residential customers may bill customers sales tax even if the customer qualifies for the exemption from sales tax under this subrule in March and April 2001 if the utility company cannot adjust its billing process in time to accommodate this exemption. Subsequently, the utility company must provide a credit for tax collected from a qualifying utility customer during the exemption period and the credit is to appear on the first possible billing date after March 31, 2001.

17.37(3) Fuel exemption. Effective February 5, 2001, through March 31, 2001, the gross receipts from the sale, furnishing, or service of fuel used to heat a residential dwelling, apartment unit, or condominium is exempt from sales tax.

a. Qualifying fuel. Any fuel which is used to provide heat for a residential dwelling, apartment unit, or condominium, as defined for the purposes of this rule, is exempt from tax. The fuel must be used to heat the residential dwelling, apartment unit, or condominium.

b. Delivery date determinative. The determining factor for exemption from sales tax is the delivery date of the fuel. Payment date, billing date, or date of execution of the contract for fuel is not a factor. Prices established by contracts executed to establish a fixed price for fuel are not impacted by this exemption. The exemption for fuel applies to the furnishing of the fuel and the delivery service. Only fuel delivered in the time frame beginning February 5, 2001, through March 31, 2001, is exempt.

Consequently, contracts executed to establish a fixed price for fuel, which may also include total or partial prepayment for the fuel under the contract, are exempt only for the amount of fuel delivered beginning February 5, 2001, through March 31, 2001. For example, in September 2000, customer A executed a contract with a propane retailer for fuel which will be delivered in January, February, March and April of 2001. Customer A pays $1,000 of the contract price to the retailer. Customer A cannot claim exemption for the entire $1,000 previously paid. Instead, customer A may only receive exemption on the $525 in gross receipts in fuel delivered under the contract from February 5, 2001, through March 31, 2001.

This rule is intended to implement Iowa Code section 422.45 as amended by 2001 Iowa Acts, House File 1.

ITEM 2. Amend rule 701—107.9(422B) as follows:

Amend the introductory paragraph as follows:

701—107.9(422B) Sales not subject to local option tax, including transactions subject to Iowa use tax. The local option sales and service tax is imposed upon the same basis as the Iowa state sales and service tax, with eight ten exceptions:

Adopt new numbered paragraphs “9” and “10” as follows:

9. Effective February 5, 2001, the gross receipts from the sale of metered gas to residential customers for energy for a residential dwelling, individually metered apartment unit, or individually metered condominium, with a billing date of March 2001 or April 2001, are exempt from local option taxes. For more detail regarding this exemption see 701—17.37(422,423).

10. Effective February 5, 2001, the gross receipts from the sale of propane, heating fuel and kerosene for the purpose of heating a residential dwelling, apartment unit or condominium, which is delivered to the customer beginning February 5, 2001, through March 31, 2001, are exempt from local option taxes. For more detail regarding this exemption see 701—17.37(422,423).

Amend the implementation clause as follows:

This rule is intended to implement Iowa Code section 422B.8 as amended by 1999 Iowa Acts, chapter 151 and section 422.45 as amended by 2001 Iowa Acts, House File 1.

[Filed Emergency 3/2/01, effective 3/2/01]

[Published 3/21/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 3/21/01.

Pursuant to the authority of Iowa Code section 455B.103A, the Environmental Protection Commission hereby amends Chapter 64, “Wastewater Construction and Operation Permits,” Iowa Administrative Code.

This amendment establishes the pilot project authorized by 2000 Iowa Acts, Senate File 2430, section 18. This legislation authorizes the Department of Natural Resources to establish a pilot project to refund fees paid to the Department for issuance of authorizations to discharge storm water under general permits if the authorization is not sent to the applicant within a time period customary for such authorizations.

Notice of Intended Action was published in the Iowa Administrative Bulletin on August 9, 2000, as ARC 0052B. No comments were received during the comment period or at the public hearing. There are no changes from the Notice of Intended Action. This amendment was Adopted and Filed Emergency and was published in the Iowa Administrative Bulletin on August 9, 2000, as ARC 0051B.

This amendment is intended to implement Iowa Code chapter 455B, division I.

This amendment shall become effective April 25, 2001, at which time the Adopted and Filed Emergency amendment is hereby rescinded.

The following amendment is adopted.

Amend rule 567—64.16(455B) by adding the following new subrule:

64.16(4) Fee refunds for storm water general permitcoverage—pilot project.

a. If, upon submittal of a complete Notice of Intent to discharge under a storm water general permit as required in 64.6(1), an applicant is not sent a written notice of general permit coverage by the department within 30 days of receipt by the department of a correctly completed Notice of Intent, the permit fee paid by the applicant shall be refunded to the applicant. The department shall determine if the criteria for submitting a correctly completed Notice of Intent have been met and shall notify an applicant within 30 days of receipt regarding deficiencies of the Notice of Intent. Fees for the renewal of prior authorizations under storm water general permits shall be refunded in the same manner and using the same criteria as for initial applications.

b. The decision of the department not to issue a refund under this subrule is final and not subject to further agency review.

c. This subrule expires June 30, 2001.

[Filed 3/2/01, effective 4/25/01]

[Published 3/21/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 3/21/01.

Pursuant to the authority of Iowa Code section 100.35, the Department of Public Safety hereby amends Chapter 5, “Fire Marshal,” Iowa Administrative Code.

Items 1 through 9 contain amendments to existing rules for residential occupancies to coordinate with the new rule for bed and breakfast inns and to clarify the application of rules for “existing” and “new” residential occupancies according to the dates on which they were first occupied. Iowa Code section 137C.35 exempts bed and breakfast inns from the fire safety regulations which apply generally to hotels and requires the Fire Marshal to adopt regulations which apply specifically to bed and breakfast inns. Item 10 of these amendments contains the fire safety regulations for bed and breakfast inns (new rule 661—5.820(100)).

The amendments were published under Notice of Intended Action in the Iowa Administrative Bulletin on July 12, 2000, as ARC 9970A.

A public hearing on these proposed amendments was held on September 8, 2000. While no comments were received at the public hearing, written comments were received from a representative of the tourism industry suggesting that the requirement in the proposed fire safety rules for bed and breakfast inns that the inns must have interconnected fire alarm systems would be unfair by treating these facilities differently from other lodging facilities such as apartments, dormitories, hotels, or bed and breakfast homes. The Department finds that the requirement for interconnected smoke detectors, while indeed different from requirements placed on the other sorts of occupancies mentioned, is warranted. With the exception of bed and breakfast homes, the other occupancies listed are subject to more stringent fire safety requirements than bed and breakfast inns under these rules, including requirements for separation of stairways and floors that would often be impractical for bed and breakfast inns. The smoke detector requirement included here is a reasonable approach to ensure adequate fire safety in these facilities. With regard to bed and breakfast homes, the statutory language is quite clear in stating specific requirements for bed and breakfast homes and assigning responsibility to the Fire Marshal to specify by rule fire safety requirements for bed and breakfast inns. The intent of the statutory language seems clearly to be that fire safety requirements for bed and breakfast inns may be more stringent than those specified in the statute for bed and breakfast homes.

These amendments are identical to those published under Notice.

These amendments will become effective on May 1, 2001.

These amendments are intended to implement Iowa Code chapter 100 and Iowa Code section 137C.35.

EDITOR’S NOTE: Pursuant to recommendation of the Administrative Rules Review Committee published in the Iowa Administrative Bulletin, September 10, 1986, the text of these rules [5.800 to 5.810, 5.820] is being omitted. These

rules are identical to those published under Notice as ARC 9970A, IAB 7/12/00.

[Filed 3/2/01, effective 5/1/01]

[Published 3/21/01]

[For replacement pages for IAC, see IAC Supplement 3/21/01.]

Pursuant to the authority of Iowa Code section 692A.10, the Department of Public Safety hereby amends Chapter 8, “Criminal Justice Information,” Iowa Administrative Code.

The Sex Offender Registry was established by the adoption of Iowa Code chapter 692A by the Iowa General Assembly in 1995. The Registry is intended to facilitate the tracking of sex offenders by criminal and juvenile justice agencies in order to accomplish two related purposes: (1) enhance the capability of criminal and juvenile justice agencies to obtain information about convicted sex offenders useful in investigation of offenses, apprehension of suspects, and prosecution of crimes, especially sex offenses, and (2) enable members of the public to obtain information about convicted sex offenders that may assist them in protecting themselves.

Iowa Code chapter 692A was amended during the 2000 session of the Iowa General Assembly by 2000 Iowa Acts, Senate File 2031, in which the time limit for registrants to report changes of address, telephone number, or name was reduced from ten days to five days. These amendments incorporate this change. In addition, completion of risk assessments by juvenile court officers, which was previously inadvertently omitted from the rules, is added, and one existing element of the rules is removed. The requirement which is removed is that the forms displaying information about registrants for purposes of affirmative public notification contain the signature of the chief executive of the agency undertaking affirmative public notification. Also, an element of the rules which was removed earlier when these amendments were Adopted and Filed Emergency is being restored. This requirement provides that registrants receive a completed copy of the risk assessment form when they receive notice of possible affirmative public notification.

Notice of Intended Action was published in the Iowa Administrative Bulletin on July 26, 2000, as ARC 9986A. These amendments were simultaneously Adopted and Filed Emergency and published as ARC 9988A. The amendments became effective July 1, 2000.

A public hearing regarding these amendments was held on September 8, 2000. Comments were received at the public hearing regarding two issues. The validity of the risk assessment techniques used to rate registrants as “low risk” or “at risk” was questioned. The comments provided at the public hearing regarding the validity of risk assessments appear to relate more directly to the assessment procedure used in relation to civil commitment of sexually violent predators, rather than to the procedure used in risk assessment of Sex Offender Registry registrants. Nevertheless, the Department agrees that validation of the assessment techniques is important and research to do so is being undertaken. Also questioned at the public hearing was the fairness of not including a copy of the risk assessment document in the material provided to the registrant when notification of the results of risk assessment is made. As indicated earlier, the requirement that a registrant receive a copy of the completed risk assessment when the registrant is notified of the outcome of the risk assessment is restored herein. Other than restoring the requirement for registrants to receive a copy of the completed risk assessment when they are notified of the result of the assessment, the language of the amendments adopted herein is the same as that published in the Notice of Intended Action and Adopted and Filed Emergency.

These amendments are intended to implement Iowa Code chapter 692A.

These amendments will become effective May 1, 2001.

The following amendments are adopted.

ITEM 1. Rescind subrule 8.303(2), paragraph “b,” introductory paragraph, and adopt in lieu thereof the following new paragraph:

b. Form DCI–145 shall also be used to report changes of residence, telephone number, or name of registrants. A completed copy of Form DCI–145 shall be submitted by the registrant to the sheriff of the county of residence each time the registrant’s place of residence, telephone number, or name changes within five days of the change of residence, telephone number, or name, whether within or outside the state of Iowa. The original of each completed Form DCI–145 shall be forwarded to the division of criminal investigation by the registering agency within three days of receiving the completed form.

ITEM 2. Amend subrule 8.304(1) as follows:

Rescind the introductory paragraph and adopt in lieu thereof the following new paragraph:

8.304(1) Affirmative public notification for public protection. A criminal or juvenile justice agency may initiate affirmative public notification regarding the identity and location of a specific registrant subsequent to the completion of a risk assessment of the registrant by the division of criminal investigation, the department of corrections, or the department of human services, or a juvenile court officer which has resulted in a finding that the registrant is “at risk.” A request for confirmation that a risk assessment resulting in classifying the registrant as “at risk” has been completed may be sent to the division of criminal investigation by mail, electronic mail via the Internet to isor@dps.state.ia.us, facsimile transmission or via the Iowa on–line warrants and articles (IOWA) system.

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

(1) When a risk assessment has been completed by the division of criminal investigation, the department of corrections, or the department of human services, the agency which conducted the risk assessment shall notify, or cause to be notified, the registrant of the initial finding, by providing to the registrant a completed copy of Form DCI–152 and of the risk assessment. Procedures for notifying a registrant of the results of a risk assessment and providing for appeals thereof shall be subject to the rules of the agency conducting the risk assessment. Copies of the risk assessment and related documents, including any appeals and documentation of the results of appeals, shall be provided to the division of criminal investigation. When a risk assessment has been completed by a juvenile court officer, the juvenile court officer shall notify the division of criminal investigation of the results of the risk assessment and provide a copy of the risk assessment to the division of criminal investigation.

When a risk assessment has been completed by the division of criminal investigation or the division of criminal investigation has received a completed risk assessment from a juvenile court officer, notice shall be given by the division of criminal investigation to the registrant by personal service or by certified mail, return receipt requested, 14 days prior to the commencement of any affirmative public notification, unless it is impracticable to give timely notice. No additional notice is required. Notice is deemed provided if the registrant refuses delivery of certified mail or if certified mail is undeliverable because the registrant has not complied with registry requirements to provide a current address. The notice shall contain the following information:

1. The result A copy of the completed risk assessment;

2. A description of the scope of affirmative public notification which may result from the risk assessment;

3. That unless application is made for a hearing on or before the date mentioned in the notice, affirmative public notification may take place at any time thereafter while the person remains a registrant;

4. That the offender may make application for a hearing by filing a written request for a hearing and mailing or serving it on the department at an address prescribed on the notice so it is received on or by the date mentioned in the notice;

5. That if application is made and received by the department by 4:30 p.m. on or by the date mentioned in the notice, there will be no affirmative public notification until and unless the result of the risk assessment is affirmed, or is modified, through the hearing process.

Rescind paragraph “e” and adopt in lieu thereof the following new paragraph:

e. Affirmative public notification initiated by other criminal or juvenile justice agency. A criminal or juvenile justice agency may initiate affirmative public notification with regard to a registrant subsequent to the completion by the division of criminal investigation, the department of corrections, the department of human services, or a juvenile court officer of a risk assessment finding that the registrant is “at risk.” Prior to initiating affirmative public notification, the agency initiating it shall provide notice to the registrant of the agency’s decision to initiate affirmative public notification, of the intended scope and manner of affirmative public notification, and of the registrant’s right to contest the decision. A copy of the notice shall be submitted to the division of criminal investigation at the same time as it is transmitted to the registrant. The notice shall contain instructions to the registrant as to the procedures for contesting the decision and the time allowed to do so. Affirmative public notification shall not proceed until the time allowed for contesting the decision has expired or, if the decision is contested, until the decision has been upheld. Any written or published form of affirmative public notification shall prominently display the identity of the agency initiating the notification.

Any criminal or juvenile justice agency initiating affirmative public notification regarding any registrant is authorized to request assistance in carrying out affirmative public notification from other law enforcement agencies with jurisdiction in areas in the vicinity of the registrant’s residence, place

of employment or school, or other places which the registrant is known to frequent.

[Filed 2/22/01, effective 5/1/01]

[Published 3/21/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 3/21/01.

Pursuant to the authority of Iowa Code section 100B.10 [2000 Iowa Acts, House File 2492, section 17], the Department of Public Safety hereby adopts Chapter 54, “Firefighter Certification,” Iowa Administrative Code.

Effective July 1, 2000, the Fire Service Institute of the Iowa State University Extension Service was replaced by the new Fire Service Training Bureau of the Fire Marshal Division of the Iowa Department of Public Safety. One of the programs carried over from the Fire Service Institute is the certification of firefighters in the state of Iowa. There are several different levels of certification, each based upon standards promulgated by the National Fire Protection Association. While certification is voluntary under state law, that is, state law does not require certification in order to work either for pay or as a volunteer in the fire service, some fire departments within the state of Iowa require certification of their members as a condition of employment. These rules provide administrative procedures for the operation of the certification program, the standards for certification at various levels, and fees related to the certification program to be collected by the Fire Service Training Bureau.

These rules were published under Notice of Intended Action in the Iowa Administrative Bulletin on July 12, 2000, as ARC 9965A, and were simultaneously Adopted and Filed Emergency and published in the Iowa Administrative Bulletin on July 12, 2000, as ARC 9969A, effective July 1, 2000.

A public hearing was held regarding the proposed rules on September 8, 2000. No comments were received regarding the proposed rules at the hearing or otherwise. Several changes from the language in the Notice and the Adopted and Filed Emergency rules have been made. There were several exceptions to the certification standards provided in the original language. To accommodate persons who had partially completed certification procedures, the exceptions provided that persons be allowed to complete their certification using standards in place at the time they commenced working on certification. Since all persons in these transitional groups have completed the certification process, these exceptions are no longer needed and have been eliminated. In addition, a table showing the fee schedule has been replaced by reference to a publication containing current fees, which will be available on request from the Fire Service Training Bureau. Several other nonsubstantive editorial changes have also been made.

These rules are intended to implement Iowa Code chapter 100B.

These rules will become effective May 1, 2001, at which time the Adopted and Filed Emergency rules are hereby rescinded.

The following new chapter is adopted.

CHAPTER 54
FIREFIGHTER CERTIFICATION

661—54.1(100B) Firefighter certification program. There is established within the fire service training bureau of the fire marshal division a firefighter certification program for the state of Iowa, which shall be known as the Iowa fire service certification system. The Iowa fire service certification system is accredited by the International Fire Service Accreditation Congress to certify fire service personnel to accepted national standards. All certifications issued by the Iowa fire service certification system shall be based upon nationally accepted standards. Participation in the Iowa fire service certification system is voluntary in that state law does not require certification to work or volunteer as a firefighter in Iowa. However, some fire departments within the state require certification for continued employment or promotion.

Inquiries and requests regarding the Iowa fire service certification system should be directed to Iowa Fire ServiceCertification System, Fire Service Training Bureau, 3100 Fire Service Road, Ames, Iowa 50010–3100. The bureaucan be contacted by telephone at (888)469–2374 (toll free)or at (515)294–6817, by fax at (800)722–7350 (toll free)or (515)294–2156, or by electronic mail at fstbinfo@ dps.state.ia.us. Further information can be found on the Web site for the fire service training bureau at www.state.ia.us/government/dps/fm/fstb.

54.1(1) Eligibility. Any person seeking certification through the Iowa fire service certification system shall be a current member of a fire, emergency, or rescue organization within the state of Iowa and shall be at least 18 years of age.

EXCEPTION: Persons not meeting the requirement of membership in a fire, emergency, or rescue organization may be granted exceptions to this requirement on an individual basis. Individuals seeking such exceptions shall address these requests to the fire service training bureau.

54.1(2) Application. Application forms for each levelof firefighter certification may be obtained from the fireservice training bureau, or on the bureau’s Web site at http://www.state.ia.us/government/dps/fm/fstb. In order to enter the certification program, an applicant shall submit a completed application, accompanied by the required fee, to the fire service training bureau. The fee must accompany the application form, although a purchase order from a public agency or private organization may be accepted in lieu of prior payment. The application and fee shall be submitted no less than two weeks prior to the date of any examination in which the applicant wishes to participate.

661—54.2(100B) Certification standards. Standards for Iowa firefighter certification are based upon nationally recognized standards established by the National Fire Protection Association (NFPA), 1 Batterymarch Park, P.O. Box 9101, Quincy, Massachusetts 02269–9101. Certification at each level in the Iowa fire service certification system results in national certification as well.

54.2(1) Firefighter I. Certification as a firefighter I is based upon the requirements for firefighter I certification established in NFPA 1001, “Standard for Fire Fighter Professional Qualifications,” 1997 edition, chapter 3, published by the National Fire Protection Association.

54.2(2) Firefighter II. Certification as a firefighter II is based upon the requirements for firefighter II certification established in NFPA 1001, “Standard for Fire Fighter Professional Qualifications,” 1997 edition, chapter 4, published by the National Fire Protection Association.

54.2(3) Driver operator (pumper). Certification as a driver operator (pumper) is based upon the requirements for fire department vehicle driver/operator certification established in NFPA 1002, “Standard for Fire Vehicle Driver/Operator Professional Qualifications,” 1998 edition, published by the National Fire Protection Association.

54.2(4) Fire officer I. Certification as a fire officer I is based upon the requirements for fire officer certification established in NFPA 1021, “Standard for Fire Officer Professional Qualifications,” 1997 edition, published by the National Fire Protection Association.

54.2(5) Fire service instructor I. Certification as a fire service instructor I is based upon the requirements for certification as a fire service instructor I established in NFPA 1041, “Standard for Fire Service Instructor Professional Qualifications,” 1996 edition, chapter 2, published by the National Fire Protection Association.

661—54.3(100B) Fees. Current certification application fees and any other fees related to participation in the certification process shall be listed in the publication Certification Procedures Guide for each level of certification, published by the fire service training bureau and available on request from the fire service training bureau. The information in each guide shall be effective upon publication until superseded by publication of a later edition. Prospective candidates who are considering application for a particular level of certification should contact the fire service training bureau for the latest date of publication of the Certification Procedures Guide.

Fees may be paid by personal check made payable to Iowa Department of Public Safety—Fire Service Training Bureau, credit card, purchase order from a public agency or private organization, check or draft from a public agency or private organization, or money order. The check, credit card information, purchase order, money order or draft shall be submitted with the application.

54.4(1) Certification. Upon completion of the requirements for certification, the applicant’s name shall be entered into the Iowa certification database maintained by the fire service training bureau for the respective level of certification and into the National Certification Data Base maintained by the International Fire Service Accreditation Congress. Individuals who successfully complete the certification requirements shall also receive an individualized certificate awarding national certification from the fire service training bureau, which will bear a numbered seal from the International Fire Service Accreditation Congress, and additional insignia from the fire service training bureau.

54.4(2) Denial of certification. Certification shall be denied to any applicant who fails to meet all of the requirements for the type of certification, who knowingly submits false information to the fire service training bureau, or who engages in fraudulent activity during the certification proc–ess.

54.4(3) Revocation. The fire marshal may revoke the certification of any individual who is found to have knowingly provided false information to the fire service training bureau during the certification process or to have engaged in fraudulent activity during the certification process.

54.4(4) Appeals. Any person who is denied certification or whose certification is revoked may appeal the denial orrevocation. Appeals of denials or revocations of certification shall be made to the commissioner of public safety within 30 days of the issuance of the denial or revocation using the contested case procedures specified in 661—Chapter 10.

These rules are intended to implement Iowa Code chapter 100B.

[Filed 3/2/01, effective 5/1/01]

[Published 3/21/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 3/21/01.

Pursuant to the authority of Iowa Code section 17A.3, the Department of Public Safety hereby adopts Chapter 59, “Volunteer Emergency Services Provider Death Benefits,” Iowa Administrative Code.

Iowa Code section 100B.11, which took effect July 1, 2000, provides that the beneficiary of a volunteer emergency services provider who dies in the line of duty will be eligible for payment of a $100,000 death benefit from the State of Iowa, subject to certain restrictions. These rules establish the death benefits program, including eligibility criteria in accordance with statutory provisions included in Iowa Code section 100B.11, administrative procedures for the program, a definition of “beneficiary” for the purposes of the program, and a procedure for appeals of decisions made by the Department in administration of the program.

Language in Iowa Code section 100B.11, provides that the lump–sum death benefit is to be paid to the beneficiary of the deceased volunteer emergency services provider once eligibility has been established. The term “beneficiary” is not defined in this statute. In order to provide clear direction for the payment of benefits when eligibility has been established, the term “beneficiary” is defined in these rules in terms parallel to the provisions of the similar death benefit program for paid emergency services providers, which is established in Iowa Code section 97A.6.

These rules were published under Notice of Intended Action in the Iowa Administrative Bulletin on July 12, 2000, as ARC 9966A. The rules were also Adopted and Filed Emergency and were published in the Iowa Administrative Bulletin on July 12, 2000, as ARC 9967A.

A public hearing regarding the proposed rules was held on September 8, 2000. No comments were received at the hearing or otherwise. These rules are identical to those published under Notice of Intended Action and Adopted and Filed Emergency.

These rules shall become effective May 1, 2001, at which time the Adopted and Filed Emergency rules are hereby rescinded.

These rules are intended to implement Iowa Code section 100B.11.

The following new chapter is adopted.

CHAPTER 59

VOLUNTEER EMERGENCY SERVICES PROVIDER DEATH BENEFITS

661—59.1(100B) Volunteer emergency services provider death benefit program. There is established within the fire marshal division a volunteer emergency services provider death benefit program with responsibility for administering the payment of death benefits to beneficiaries of volunteer emergency services providers who die in the line of duty, as provided in Iowa Code section 100B.11.

Information about the program may be obtained by mail from the Volunteer Emergency Services Provider Death Benefit Program, Fire Marshal Division, Department ofPublic Safety, 621 East 2^nd Street, Des Moines, Iowa 50309–1831, by telephone at (515)281–5821, or by electronic mail at fminfo@dps.state.ia.us.

661—59.2(100B) Eligibility. The beneficiary of a volunteer emergency services provider who is killed in the line of duty is eligible for a lump–sum payment of $100,000 from the volunteer emergency services provider death benefit program, provided that application is made to the program in accordance with requirements established in this chapter and all eligibility criteria are satisfied.

59.2(1) Application. Application forms for the volunteer emergency services provider death benefit program may be obtained on request from the fire marshal division. The fire marshal may accept a legible copy of a completed application for the federal public safety officer benefits program as an application for payment of benefits from the volunteer emergency services provider death benefit program. Completed application forms shall be mailed or delivered to the Volunteer Emergency Services Provider Death Benefit Program, Fire Marshal Division, Department of Public Safety, 621 East 2^nd Street, Des Moines, Iowa 50309–1831. A completed application form shall be accompanied by a letter from the chief or other responsible supervisory official of the department in which the volunteer emergency services provider was serving at the time of the line–of–duty death, certifying that the death of the volunteer was the direct and proximate result of a traumatic personal injury incurred in the line of duty as a volunteer. Any evidence or proof available to the chief or responsible supervisory official to support the claim shall accompany the letter.

59.2(2) Definitions. The following definitions apply to the volunteer emergency services provider death benefit program.

“Beneficiary” means the surviving spouse of the volunteer emergency services provider who died in the line of duty. If there is no surviving spouse, and there is a surviving child or surviving children of the volunteer emergency services provider, then “beneficiary” means the surviving child of the member. If there is more than one surviving child, the children are cobeneficiaries who shall share equally in the lump–sum payment of the death benefit. If there is no surviving spouse or child of the volunteer emergency services provider, “beneficiary” means the surviving father or mother of the volunteer emergency services provider if either or both survives at the time of the line–of–duty death of the volunteer emergency services provider. If both the mother and father of the volunteer emergency services provider survive at the time of the line–of–duty death of the volunteer emergency services provider, then the father and mother are cobeneficiaries who shall share equally in the lump–sum payment. If there is no surviving spouse, child, or parent at the time of the line–of–duty death of the volunteer emergency services provider, then “beneficiary” means the estate of the deceased volunteer emergency services provider.

“Line–of–duty death” means the death of a volunteer emergency services provider which was the direct and proximate result of a traumatic personal injury incurred in the line of duty as a volunteer. The death is not a line–of–duty death if any of the following apply:

1. The death resulted from stress, strain, occupational illness, or a chronic, progressive, or congenital illness including, but not limited to, a disease of the heart, lungs, or respiratory system, unless a traumatic personal injury was a substantial contributing factor to the volunteer emergency services provider’s death.

2. The death was caused by the intentional misconduct of the volunteer emergency services provider or by such provider’s intent to cause the provider’s own death.

3. The volunteer emergency services provider was voluntarily intoxicated at the time of death.

4. The volunteer emergency services provider was performing the provider’s duties in a grossly negligent manner at the time of death.

5. A beneficiary who would otherwise be entitled to a benefit under this chapter was, through the beneficiary’s actions, a substantial contributing factor to the volunteer emergency services provider’s death.

661—59.3(100B) Determination. After receiving an application for benefits from the volunteer emergency services provider death benefit program, the fire marshal shall make a determination as to whether or not the application meets the requirements for payment of benefits. The fire marshal may require the beneficiary or the chief or responsible supervisory official who has certified that the death is a line–of–duty death to submit any additional information that the fire marshal deems material to making the determination. If the determination is that the requirements for payment of benefits have been met, the fire marshal shall so notify the beneficiary or cobeneficiaries and shall request that the department of revenue and finance issue a warrant payable to the beneficiary in the amount of the lump–sum payment provided or, if there are cobeneficiaries, that the department of revenue and finance issue warrants in equal shares of the lump–sum amount payable to each of the cobeneficiaries.

59.3(1) Denial and notification. If the fire marshal determines that the eligibility criteria have not been met, the fire marshal shall notify in writing the beneficiary or cobeneficiaries and the chief or responsible supervisory official who certified that the death occurred in the line of duty of the determination and of the reason or reasons for the denial.

59.3(2) Appeals. If an application for payment from the volunteer emergency services provider program is denied, the beneficiary or any cobeneficiary may appeal that decision to the commissioner of public safety by filing an appeal in writing to the commissioner of public safety within 30 days of the date of the denial of the application by the fire marshal. Appeals shall be processed in accordance with contested case procedures specified in 661—Chapter 10.

These rules are intended to implement Iowa Code section 100B.11.

[Filed 3/2/01, effective 5/1/01]

[Published 3/21/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 3/21/01.

Pursuant to the authority of Iowa Code sections 421.17(19), 422.33, 422.34A, and 422.68, the Department of Revenue and Finance hereby amends Chapter 52, “Filing Returns, Payment of Tax and Penalty and Interest,” Iowa Administrative Code.

Notice of Intended Action was published in IAB Volume XXIII, Number 15, page 1119, on January 24, 2001, as ARC 0420B.

Subrule 52.1(2) is amended to clarify that the protection of Public Law 86–272 cannot be claimed by brokers and manufacturers’ representatives.

This amendment is identical to the one published under Notice of Intended Action.

This amendment will become effective April 25, 2001, after filing with the Administrative Rules Coordinator and publication in the Iowa Administrative Bulletin.

This amendment is intended to implement Iowa Code sections 422.33 and 422.34A.

The following amendment is adopted.

Amend subrule 52.1(2), introductory paragraph, as follows:

52.1(2) Corporate activities not creating taxability. Public Law 86–272, 15 U.S.C.A., Sections 381–385, in general prohibits any state from imposing an income tax on income derived within the state from interstate commerce if the only business activity within the state consists of the solicitation of orders of tangible personal property by or on behalf of a corporation by its employees or representatives. Such orders must be sent outside the state for approval or rejection and, if approved, must be filled by shipment or delivery from a point outside the state to be within the purview of Public Law 86–272. Public Law 86–272 does not extend to those corporations which sell services, real estate, or intangibles in more than one state or to domestic corporations. For example, Public Law 86–272 does not extend to brokers or manufacturers’ representatives or other persons or entities selling products for another person or entity.

[Filed 3/2/01, effective 4/25/01]

[Published 3/21/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 3/21/01.

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

The purpose of this rule making is to establish rules for substance abuse prevention and treatment regions, particularly to establish a process for changes in service areas. Iowa Code section 125.12 outlines the comprehensive program for substance abuse treatment and requires the division of the state into regions. The Director, with the review of theCommission, established regions many years ago. No provision was made at that time for responding to requests for changes in the service areas of the regions. These rules provide a process for that action.

Notice of Intended Action was published in the Iowa Administrative Bulletin on November 29, 2000, as ARC 0324B. A public hearing was held on January 4, 2001. No comments were received on the published Notice. There were public comments at the February 21, 2001, meeting of the Substance Abuse Commission. Before approving the chapter, the Commission added language to rule 9.7(125) to clarify the timing of the effective date of any changes in regions if changes were approved. No other changes were made from those published under Notice.

The Substance Abuse Commission adopted these rules on February 21, 2001.

These rules are intended to implement Iowa Code section 125.12.

These rules will become effective April 25, 2001.

The following new chapter is adopted.

CHAPTER 9
REGIONS FOR SUBSTANCE
ABUSE PREVENTION AND TREATMENT

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

643—9.2(125) Request for a change in service areas. Any existing service provider may file an application with the director to change an existing service area.

643—9.3(125) Application. The application shall include the following:

1. The name, address, and description of the applicant;

2. A description of the proposed change;

3. The applicant’s rationale in support of the change in service area;

4. The number of clients the applicant proposes to serve and the proposed increase in quality or quantity of services to these clients;

5. A description of community support for the change; and

6. The names and addresses of all affected parties, including existing service providers.

643—9.4(125) Notification of affected parties. Within ten calendar days of receipt of a completed application, the director shall provide written notification to any affected parties identified in the application and shall allow any affected parties so notified 30 calendar days to submit written information in support of, or in opposition to, the application.

643—9.5(125) Public hearing. The director may hold a public hearing at which the applicant and any affected parties may provide an oral presentation with respect to their positions. The director shall give notice to the applicant and all affected parties ten calendar days prior to holding the hearing. The hearing shall not be a contested case hearing as that term is defined in Iowa Code chapter 17A.

643—9.6(125) Proposed decision. The director shall issue a written proposed decision which includes findings of fact and either approves or rejects the application. In issuing this decision, the director shall consider the proposed application, other information received from the applicant, information received from affected parties, the terms of any relevant contract, city and county lines, population concentrations, and existing substance abuse treatment and prevention services.

643—9.7(125) Change during term of contract. The director shall not approve an application which would change a service area during the term of an existing contract or after the release of a request for proposal for a new contract. Applications submitted after issuance of a request for proposal will, if granted, not become effective until after the expiration of the contract awarded pursuant to said request for proposal.

643—9.8(125) Commission review. The director’s proposed decision shall be reviewed by the commission at its next regularly scheduled meeting. The commission shall review all of the materials considered by the director, as described in rule 9.6(125), and the proposed decision and vote to approve or reject the director’s proposed decision.

643—9.9(125) Commission decision. The commission’s decision shall be issued in writing and shall be final agency action for the purposes of Iowa Code chapter 17A.

These rules are intended to implement Iowa Code section 125.12.

[Filed 3/2/01, effective 4/25/01]

[Published 3/21/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 3/21/01.

Pursuant to Iowa Code sections 17A.4, 476.1, 476.2, 476.86, and 476.87 (2001), the Utilities Board (Board) gives notice that on February 19, 2001, the Board issued an order in Docket No. RMU–00–7, In re: Natural Gas Marketer Certification, “Order Adopting Rules.”

The amendments to 199 IAC 2.2(17A,474), 19.13(6), and 19.14(476) establish procedures for certification of competitive natural gas providers (CNGPs).

Notice of Intended Action was published in IAB Vol. XXIII, No. 1 (7/12/00), p. 55, as ARC 9976A.

In 1999 the Legislature adopted Iowa Code sections 476.86 and 476.87, which authorize the Board to certify natural gas marketers and aggregators in Iowa as CNGPs. This legislation directed the Board to adopt rules establishing the criteria for certification of CNGPs. The amendments adopted complete this process. The Board has found that these amendments should apply to both marketers and aggregators equally and so has included marketers and aggregators under the definition of “CNGP” in adopted subrule 19.14(1).

In the March 3, 2000, “Order Terminating Small Volume Gas Dockets and Discussing Tariff Filing Requirements,” Docket No. NOI–98–3, the Board decided to pursue the tariff approach for implementation of small volume gas transportation. The March 2000, “Report of the Board Inquiry into Small Volume Gas Transportation” in Docket No. NOI–98–3 discussed minimal “transition–like” CNGP certification rules under the tariff approach. The adopted amendments are consistent with that discussion.

Adopted 199 IAC 19.14(476) establishes standards for transportation service to small and large volume customers. CNGPs have been serving large volume customers for many years. CNGPs proposing to serve small volume customers will be required to provide significantly more information than those serving only large volume customers. Because small volume customers do not have the resources to research and evaluate a CNGP’s operational ability and business practices or the bargaining position or sophistication to demand certain rights, the Board believes it is appropriate to include more protections for small volume customers in the adopted amendments.

The amendments provide that any CNGP providing service to an Iowa retail end user after the effective date of the rule, April 25, 2001, must have a certificate in order to provide service to Iowa retail end users. The form of the application for a certificate is adopted in 199 IAC 2.2(18). The statute and these adopted amendments provide exemptions from certification to rate–regulated public utilities and municipalities serving within their corporate limits or municipal natural gas competitive service areas as described in Iowa Code section 437A.3(21)“a”(1). The Board believes that a municipal gas utility must obtain a certificate as a CNGP if it serves outside the municipal corporate limits or its competitive service area. The Board believes that rural electric cooperatives that provide natural gas service to customers over their own distribution lines are exempt from obtaining a certificate as rate–regulated public utilities under the provisions of Iowa Code section 476.1C (2001).

Written statements of position on the proposed amendments were to be filed no later than August 1, 2000. Written statements were filed by Iowa Association of School Boards (IASB), Iowa Association of Electric Cooperatives (IAEC), Iowa Association of Municipal Utilities (IAMU), IES Utilities, Inc., Interstate Power Company and Alliant Energy Resources (Alliant), Marshall County Rural Electric Cooperative, d/b/a Consumer Energy (Consumer Energy), Mid–American Energy Company (MidAmerican), National Energy Marketers Association (NEM), Office of Consumer Advocate (Consumer Advocate), Peoples Natural Gas Company, Division of UtiliCorp United, Inc. (Peoples), and Public Alliance for Community Energy (PACE).

The Board held an oral presentation on August 23, 2000. Oral statements were made by IAMU, Alliant, MidAmerican, Consumer Advocate, Peoples, and PACE. The Board on August 25, 2000, issued an order allowing interested parties an opportunity to file additional comments. Additional comments were filed by MidAmerican, Consumer Advocate, and Peoples.

The Board has made some revisions to the proposed amendments published on July 12, 2000, in IAB XXIII, No. 1, p. 55, as ARC 9976A. Statements and comments concerning the amendments and the revisions adopted are addressed below.

Comments were received concerning subrule 2.2(18). Consumer Advocate proposed that a CNGP be required to identify all states and jurisdictions where the CNGP has voluntarily withdrawn from providing service due to financial or operational reasons. Consumer Advocate also proposed that a provision be added that requires the CNGP to file with its application a copy of its standard form contract and the disclosure statement required by 19.14(6)“c.” Consumer Advocate stated that it agrees with IAEC that the phrase “in the United States” should be removed, but stated that it disagrees with IAEC’s proposal to exempt aggregators from the requirements of numbered paragraph “6” of the application. Consumer Advocate stated that the objective of this rule does not depend on the applicant taking title to the natural gas and that aggregators will likely engage in the marketing and recruitment of customers and should be responsible for providing natural gas to customers.

Consumer Advocate disagreed with NEM regarding the need for more specific requirements for filing financial and operational information and stated that the subrule provides the Board flexibility and should be retained. Consumer Advocate suggested that the Board clarify its right to suspend, modify, or revoke a CNGP’s certificate for failure to comply with the conditions of certification.

IAEC stated that the CNGP should provide international jurisdictions where it has had complaints, not just those in the United States. IAEC also suggested that in numbered paragraph “5” of the application the phrase “provision of competitive natural gas services” should be used instead of “supply energy services” and suggested that a paragraph be added to require the CNGP to pay or collect all replacement taxes due. IAEC suggested that public utilities should not be required to file the information in numbered paragraph “6” of the application, nor should aggregators, since the aggregators do not take title to the gas.

NEM stated that the requirements for filing financial and operational information need to be more specific about the information required to be filed and how the criteria will be evaluated for approval.

Alliant proposed that the CNGP be able to file the financial and operational information as confidential.

The Board considered the comments concerning the application and adopted several of them. To ensure the Board obtains complete information concerning an applicant’s CNGP background, the Board shall require that information about jurisdictions where the CNGP has withdrawn from providing service be provided. The Board shall require the filing of the standard form contracts and disclosure statements by each CNGP. The Board added a sentence indicating confidential treatment can be requested and changed the words “energy services” to “competitive natural gas services.” The Board also adopted the recommendation to remove the reference to the United States.

Regarding IAEC’s suggestion requiring the CNGP to pay or collect all replacement taxes due, the Board does not believe it is necessary to include this provision in Board rules. Replacement taxes are currently recovered through the distribution function and paid by the public utility pursuant to Iowa Code chapter 437A. If these taxes apply to CNGP service, it will be the CNGP’s responsibility to ensure they are paid.

The Board adopted subrule 2.2(18) with the revisions discussed above.

There were no comments filed concerning the proposed amendment to subrule 19.13(6). The Board adopted the subrule as proposed.

Comments were received concerning subrule 19.14(1). Peoples suggested that the definition of “CNGP” not include nonregulated services performed by the CNGP and stated that the threshold definition and proposed usage levels for small and large volume gas users are overly restrictive. Peoples requested that the Board change its proposed definitions of small and large volume users to correspond to language currently approved in the individual tariffs of distribution companies. Peoples proposed to stylistically change the phrase “means natural gas sold at retail in this state” to “refers to the retail sale of natural gas in this state” and to replace “excluding natural gas sold” with “excluding the sale of natural gas.”

MidAmerican recommended that “small volume user” be defined as any end user whose usage does not exceed 2,500 therms in any month or 10,000 therms in any consecutive 12–month period and “large volume user” be defined as any end user whose usage exceeds 2,500 therms in any monthor 10,000 therms in any consecutive 12–month period. Mid–American indicated that its proposed demarcation point will place virtually all MidAmerican residential customers and about 90 percent of commercial and industrial customers in the small volume category. MidAmerican stated that the demarcation it proposes is supported by its customer data and should be adopted, although MidAmerican stated at the oral presentation that from the perspective of having a program that works, it is preferable to have the small volume demarcation point higher rather than lower.

Alliant stated that it generally agreed with MidAmerican concerning revision of the demarcation point between large and small volume customers.

IAEC requested more information about how the proposed demarcation point was determined to be appropriate.

PACE suggested that the volumes associated with the small volume user definitions would actually include many medium and large volume users. PACE agrees that erring on the high side has some benefit.

Consumer Advocate urged the Board to retain its proposed usage limits. It stated that for consumer protection it would be preferable to have usage limitations that are possibly overinclusive rather than underinclusive. Consumer Advocate stated that it does not oppose further clarification of definitions included in this proceeding as raised by Peoples.

The Board has considered the comments concerning the demarcation point between small and large volume customers. MidAmerican recommended that the demarcation be lowered to 2,500 therms in any month. MidAmerican provided the number of residential customers that would be included at 2,500 therms. MidAmerican’s numbers show that 28 residential customers would not meet the 2,500–therm criteria. The Board believes that the definition of “small volume users” should be broader and that an overlap between a company’s existing transportation service and its small volume CNGP service will provide a choice for those customers. The Board believes that the use of the 25,000–therm demarcation point as originally proposed will include all residential customers and some business customers. The Board believes this is preferable rather than having lower limits that might exclude some residential customers. If a public utility does not believe the demarcation point between small volume and large volume customers can reasonably be applied on its system, it may file for a waiver of this requirement.

The Board does not believe that Peoples’ recommendation to remove nonregulated services from the definition of CNGP is reasonable. Rule 19.14(476) relates to the gas service provided by CNGPs, and the Board has jurisdiction over that gas service. The Board agreed with some of the stylistic changes proposed by Peoples and made those changes.

The Board believes that rural electric cooperatives that provide natural gas service come within the statutory description of a rate–regulated natural gas public utility. Rural electric cooperatives will very likely be serving fewer than 2,000 gas customers and are therefore subject to minimal levels of rate regulation pursuant to Iowa Code section 476.1C. In its role as a rate–regulated natural gas public utility, a rural electric cooperative comes within the exception of Iowa Code section 476.86 and is therefore not required to obtain a certificate as a CNGP as required by Iowa Code section 476.87.

The Board considered adding language to subrule 19.14(1) concerning municipally owned utilities to state that a municipally owned utility shall obtain a certificate prior to providing natural gas service outside its incorporated area or outside the municipal natural gas competitive service area, as defined in Iowa Code section 437A.3(21)“a”(1), in which the municipally owned utility is located. The Board did not include the language in the adopted subrule since it had not proposed the language originally. The Board believes that this is the correct interpretation of the statute on this question.

Comments were received concerning subrule 19.14(2). Peoples proposed that the word “service,” which is undefined, should be replaced with the already defined phrase “competitive natural gas services” in order to avoid unnecessary ambiguity.

The Board adopted Peoples’ recommendation.

Comments were received concerning subrule 19.14(3). PACE recommended that the hourly rate cost requirement for filing an application for a certificate be more structured so CNGPs can determine the cost of applying.

MidAmerican recommended that the fee be cost–based and a flat rate rather than the $125 plus hourly costs. The final application fee should be carefully reviewed so as to include all costs associated with routine review of an application, including the costs of Consumer Advocate and Board review. MidAmerican suggested that the fee could be adjusted annually.

NEM recommended that a flat fee be used (that could be adjusted at a later date) so CNGPs can determine the cost of applying.

Consumer Advocate stated that the Board’s proposed fixed application fee plus actual costs of Board review will encourage greater compliance with certification requirements and should be retained.

The Board structured the application fee in an attempt to be consistent with the authority granted the Board by Iowa Code section 476.87(3). The basis for the fee structure is that the $125 is calculated to be the administrative cost for processing a filing (not for technical and legal review). The variable portion of this fee structure is intended to provide an incentive for applicants to file complete applications. The adopted fee structure will allow the Board to assign costs to those applicants whose applications require some additional investigation or review rather than to average the costs over all applicants. This structure also will assess costs to those application proceedings where interested parties object to the application. The Board has done some preliminary inquiry concerning the hourly costs and has found that those costs would be approximately $55 an hour for review. With an estimation of a minimum of five hours to process an uncontested application, a total fee would be approximately $400. The Board adopted the proposed subrule on this basis.

Comments were received concerning subrule 19.14(4). IAEC recommended that the Board should respond, in writing, within 30 days of filing if an application does not meet the requirements of this rule and stated that there is no explanation of the circumstances under which the Board may extend the certification process for an additional 60 days nor is provision made for notifying the applicant of this extension.

NEM indicated that the time frame for Board review of certification applications is too long and that it could unnecessarily limit the ability of marketers to enter the Iowa gas markets.

Consumer Advocate disagreed with NEM concerning the time period for review. Consumer Advocate indicated that the proposed length of time for review of a certification application is appropriate and should be retained.

The Board proposed the time frame of 90 days plus an additional 60 days to be consistent with the time period for review established by statute. The Board anticipates that it will not take the full 90 days or be necessary to extend the period for the additional 60 days unless there are problems in analyzing and verifying the applicant’s information. This would also be true if there is opposition to the application. The statutory times are reasonable, but should not be necessary unless applicants fail to provide information that complies with the rule. Additionally, the applicant should be notified once the 90–day period starts, and the Board modified the rule to include that provision.

A comment was received from Alliant concerning subrule 19.14(5). Alliant recommended that, for clarification purposes, the statement “failure to comply with the conditions of certification may constitute grounds for certificate revocation” should be added to subrule 19.14(5).

The Board has required in numbered paragraph “7” of 199 IAC 2.2(18) that an applicant acknowledge that failure to comply with all the applicable conditions of certification may result in the revocation of the CNGP’s certificate. The Board agrees that modifying this subrule to include the statement that the applicant must continue to comply with the certification requirements or risk having the certification revoked is important to ensure that applicants are fully aware of this requirement and that they must continue to comply with rule 19.14(476). The Board included the additional language in the adopted subrule.

Comments were received concerning paragraph 19.14(5)“a.” Peoples suggested that in paragraph “a” the terms “competitive natural gas services” and “natural gas equipment” are not adequately defined, are overly broad, and should be more specific about what services and what equipment are contemplated. Also, if specific services are to be included in paragraph “a,” they should be specifically included in the definition of “competitive natural gas services” in subrule 19.14(1).

Consumer Advocate indicated that paragraph “a” seems to target deceptive marketing practices and slamming. Consumer Advocate recommended that the Board consider adopting specific provisions prohibiting slamming and cramming practices and establishing appropriate remedies and penalties for such misconduct. Consumer Advocate maintained that it would be preferable to have such rules in place to prevent slamming from becoming a problem.

PACE stated that it has not had any significant incidences of slamming and cramming in Nebraska.

The Board modified the adopted paragraph so that it is clear that the equipment used in furnishing competitive natural gas services is covered by this rule. The Board does not believe that a specific list of services and equipment would be beneficial since the list may not be inclusive and the paragraph is intended to cover all charges for all services and equipment related to the furnishing of gas by a CNGP.

The Board has considered whether extensive slamming and cramming rules should be included in this rule making. The Board does not believe that an extensive modification of these rules to include prohibitions against slamming and cramming is within the scope of the proposed rules. The Board believes Consumer Advocate’s comments on deceptive marketing practices and slamming may have merit but are beyond the scope of this rule making. The Board will review this information and will decide whether to propose a separate rule making for slamming and cramming related to natural gas customers in the future.

Comments were received concerning paragraph 19.14(5)“b.” IASB stated that it is unclear from the language of the paragraph whether the emergency telephone number for the public utility should be given to the customer during the emergency or whether it is to be printed on the bill.

Adopted subparagraph 19.14(6)“b”(9) requires that a toll–free telephone number be printed on the customer bill for the end user to notify the public utility of an emergency regarding delivery service. Paragraph 19.14(5)“b” requires the CNGP to provide the customer with the emergency telephone number of the public utility upon receipt of information from an end user of the existence of an emergency situation with respect to delivery service. The Board believes that both of these requirements are appropriate to ensure that the public utility is notified when there is an emergency situation. The Board adopted paragraph 19.14(5)“b” as proposed.

Comments were received concerning paragraph 19.14(5)“c.” NEM questioned whether the information requested on an annual basis in paragraph 19.14(5)“c” is necessary. NEM stated that the information may be proprietary and that the filing may be burdensome and suggested using the incumbent utility as an information source for switching and throughput statistics associated with transportation customers.

PACE questioned how allowing applicants to file the information required by paragraph 19.14(5)“c” as confidential protects consumers. PACE maintained that it will file the information as public if required.

Consumer Advocate stated that it does not believe that the reporting requirements concern proprietary information. Consumer Advocate also stated that the CNGP may request confidentiality and that the CNGP is the appropriate source for this information. Consumer Advocate proposed that the CNGPs be required to file monthly price information which they would compile into a comparative format. Consumer Advocate stated that it supports the filing of cost information by CNGPs.

The Board plans to use the information contained in the reports to monitor the development of the small volume gas market specifically and the market activity of all transportation customers in general. In addition to other purposes, the revenue data could be used if the CNGPs are allocated a portion of the remainder assessment charges. The Board also believes the reporting information is not voluminous and should be readily available to the CNGPs. As the rule indicates, the information can be filed with a request for confidential treatment. The paragraph will be adopted as proposed.

Considering the high gas prices and the current public interest in the price of gas, the Board finds that requiring each CNGP to provide the rates shown on the monthly bill as required in paragraph 19.14(6)“b” is in the public interest. These rates are filed for informational purposes only, and the Board does not approve the rates. The Board adopted a new paragraph 19.14(5)“d” requiring the CNGPs to file the information.

Iowa Code section 476.86 has specific exemptions for rate–regulated public utilities and municipal utilities. These adopted rules require CNGPs to provide the data in these paragraphs. Since rate–regulated public utilities are exempt from CNGP status, these rules cannot require that exempt utilities provide the information required of CNGPs. Nonetheless, the purpose of this information is to keep the Board up to date on market development. Therefore, the Board will consider whether it should propose additional rule changes to require that similar information be filed by rate–regulated public utilities.

No comments were received concerning the introductory paragraph of subrule 19.14(6). However, the Board added the word “when” to the introductory paragraph to ensure that it is understood that the additional conditions in the subrule are mandatory for all service to those customers who meet the criteria as small volume customers. This applies whether the CNGP has one small volume customer or many.

Comments were received concerning paragraph 19.14(6)“a.” NEM recommended that the Board not place public utility–like requirements on the CNGPs.

PACE suggested that there is no need for a customer deposit requirement for CNGPs since the public utility already has one. PACE stated that there is no need for two deposits and the CNGP usually does not bill for the public utility.

Under current tariffs the customer deposit that the public utility collects from transportation customers is based on delivery service, not energy charges. The Board believes the collection of a deposit should be at the CNGP’s option, and the CNGP will be subject to the conditions contained in Board rules. The Board also believes that the deposit requirements should apply only to the smaller customers in this new competitive environment. The Board believes that the larger customers will be able to protect themselves and do not need the protection of a customer deposit rule. The Board used the demarcation point proposed by MidAmerican for small volume customers to designate to which customers the deposit requirement will apply. The Board adopted paragraph 19.14(6)“a” with this modification.

Comments were received concerning paragraph 19.14(6)“b.” Consumer Advocate recommended that the Board’s toll–free number be added to the bills. Consumer Advocate stated that it is unclear what MidAmerican’s concerns are with regard to including the information concerning rates required by subparagraph 14(6)“b”(10). Consumer Advocate stated that it supports the inclusion of all the information if the customer chooses the single–bill option from the CNGP and stated that the Board can waive any provision that is found confusing.

IASB suggested that subparagraphs “5” and “6” are inconsistent and need to be reconciled. Also, IASB questioned whether all the information in subparagraphs (1) through (10) is necessary and recommended eliminating those requirements that are not essential. IASB recommended review of subparagraph (10) to ensure the language is not too limiting on the Board.

IAEC questioned whether paragraph 19.14(6)“b” would allow for electronic billing and questioned why the requirements of subparagraph (10) are imposed on CNGPs to the extent that CNGPs do not purchase the delivery service.

MidAmerican stated that there should be few standardrequirements placed on CNGP bills to customers. Theproposed rule did not include the option of electronic billing or a requirement that a utility offer a combined distribution company/CNGP bill or two separate bills. MidAmerican stated that both electronic billing and billing options provide flexibility for the utility, customer, and marketer and should be retained and clarified. MidAmerican stated that it assumes, if a CNGP charges a flat fee, the CNGP would meet this requirement by indicating that the flat fee includes “all charges” imposed upon the customer. MidAmerican asked for clarification of this requirement. If this requirement is intended to require CNGP bills to include all the information that is presently required to be on the distribution bill, Mid–American believes that it is unnecessary. If from time to time the Board may order CNGPs to include specific information, i.e., public utility refunds on bills, MidAmerican has no objection. MidAmerican asked the Board to clarify whether this is an occasional or ongoing requirement. If it is an ongoing requirement, MidAmerican proposed that the definitions on the back of the bill be deleted because they may be confusing to customers who may be billed flat fees instead of on a per–unit basis. MidAmerican questioned whether there can be electronic billing or a combined bill under this paragraph. In subparagraph (2), MidAmerican suggested that if a flat fee is charged then the items do not have to be itemized. Mid–American stated that the CNGP bill does not need to include all the information required on public utility bills, as required by subparagraph (10), and recommended that subparagraph (10) not be adopted.

PACE stated that it did not understand the purpose for subparagraph (10) and would like some clarification.

The Board has considered the comments made by Mid–American, IAEC, and PACE seeking clarification of the purpose of subparagraph (10) and agrees that this provision needs to be more specific. The intent of the provision is to provide customers with a specific breakdown of charges so customers can distinguish transportation charges from the public utility versus the nonregulated charges of the CNGP. The Board revised subparagraph (10) to specifically require the inclusion of the tariffed transportation charge on the bill and to include any supplier refunds. This requirement will only be necessary where there is a combined bill sent to the customer. It would be duplicative where there are separate bills.

The Board agrees with MidAmerican that adaptable billing options are beneficial. The rule does not mandate combined or separate bills. The Board also agrees that a flat rate charge satisfies the requirement for itemization.

Additionally, the Board finds that the CNGP should be allowed to offer electronic billing, at the option of the customer. This is already being done by waiver for some regulated utilities. This alternative has the potential of providing cost savings that may then be passed on to customers. Electronic bills should include all of the information required on paper bills. The Board adopted paragraph 19.14(6)“b” with the modifications discussed above.

Comments were received concerning paragraph 19.14(6)“c.” MidAmerican suggested that disclosure be allowed by electronic mail.

Consumer Advocate stated that it does not oppose Mid–American’s request to have the option to deliver electronically the disclosure required under 19.14(6)“c” if the customer is able to receive such notifications and specifically elects that method of communication. Consumer Advocate pointed out that this option should not extend to notification of disconnection.

The Board finds that the CNGP should be given the flexibility to provide disclosure information electronically, at the option of the customer. The Board revised the paragraph to include this provision.

Comments were received concerning paragraph 19.14(6)“d.” Alliant recommended either defining the term “LDC” or replacing it with the term “public utility.”

MidAmerican suggested that notice of termination should be sent to the public utility at the same time as it is sent to the customer, and if the termination is rescinded, then notice of the rescission should be sent to the public utility. Additionally, MidAmerican proposed that utilities have the option of delivering the required notification of service termination, as well as other customer communications, electronically. The last sentence of paragraph “d” concerning physical disconnection should be amended for consistency as follows: “CNGPs are prohibited from physically disconnecting the end user or threatening physical disconnection for any reason.”

Consumer Advocate stated that notice of disconnection should always be delivered by U.S. mail due to the seriousness of the information.

The Board agrees with Alliant’s recommendation and removed the reference to “LDC” and replaced it with “public utility.” The Board finds that the paragraph as proposed requires 12 days’ notice to the end user and the regulated utility before service can be terminated. The Board agrees withMidAmerican that the public utility should also be given notice if the “Notice of Termination” is rescinded. The Board also agrees with MidAmerican’s proposal concerning clarification of the physical disconnection prohibition. The Board believes that service termination notices are of such importance that they should still be sent by U.S. mail rather than sent electronically. The Board adopted the paragraph with the revisions discussed above.

Comments were received concerning paragraph 19.14(6)“e.” Consumer Advocate suggested that in subparagraph (4) the end user could choose to change to the public natural gas utility or another CNGP within the penalty–free 30–day time period. Consumer Advocate stated that it disagrees with IAEC’s position that the requirements for the transfer of a customer’s account are unduly burdensome. Consumer Advocate stated that it is important that a customer not be transferred without the customer’s consent. Consumer Advocate during the oral presentation recommended that the Board adopt specific slamming rules to prevent the unauthorized transfer of customers. Consumer Advocate stated that the rule should allow for the transferring of customers from the CNGP to a public utility or a municipal utility, especially considering that there may not be another marketer willing and able to take those customers.

MidAmerican suggested that the CNGP be required to notify the public utility of the transfer of account with the addition of the following language: “The affected LDC is notified of the transfer and the affected end users prior to the transfer.”

IAEC suggested that proposed subparagraph (4) of this provision was an absolute prohibition against transfers to be serviced by rate–regulated utilities and municipally owned utilities.

The Board agrees with Consumer Advocate’s comment concerning subparagraph (4). The Board revised the language in subparagraph (4) to allow a customer 30 days to change to another supplier (including the public utility) without penalty. The Board agrees with MidAmerican’s proposed language concerning notice to the public utility of the transfer. Notice should be made as a part of the transfer to ensure service is not interrupted. The Board adopted the paragraph with the revisions discussed above.

Comments were received concerning paragraph 19.14(6)“f.” IAEC suggested that a bond should not be required of a public utility. Likewise the bond requirement should not be applicable to aggregators since they do not take title to natural gas.

MidAmerican suggested that the public utility be authorized to impose reasonable financial requirements on the CNGP, in addition to the bond requirement. MidAmerican stated that public utilities are better able to assess the creditworthiness of a CNGP due to the day–to–day relationships they have with the marketers. MidAmerican stated that the companies should be authorized to have tariffs containing credit requirements that are reasonable and nondiscriminatory. Also, MidAmerican suggested that paragraph “f” be modified to require an emergency demonstration of financial capability upon written request by the Board with five days’ notice.

NEM stated that companies with certain S&P or Moody ratings should already meet reasonable standards. Others should be able to meet the financial standard with a reasonable bonding requirement. NEM stated that excessive bonding requirements will increase the costs associated with energy delivery and limit competition.

Consumer Energy suggested that the bond requirement does not apply to a public utility and should not apply to an aggregator since the aggregator does not take title to the gas. If a bond requirement is necessary, it recommends $250,000 maximum.

Consumer Advocate supported retaining the bonding requirement, rather than allowing the utility company to establish its own financial security requirements. Consumer Advocate stated that there might be a conflict of interest if the utility was creating financial requirements for an affiliate CNGP.

Peoples supported MidAmerican’s proposal for maintaining financial reliability.

PACE stated that in Nebraska suppliers provide a letter of credit. However, PACE stated that it preferred a performance bond instead of a letter of credit.

In regard to Consumer Energy’s comment, the Board notes that since public utilities subject to rate regulation are not subject to certification, Consumer Energy would not be subject to the potential bonding requirement. However, the public utility’s nonregulated marketing affiliates would be subject to certification. This paragraph provides that the Board “may” require that applicants file a bond or other demonstration of financial capability. The Board finds that the requirement should be retained to provide the Board with the authority to protect customers. The Board does not intend for the adopted rule to preclude public utilities from proposing reasonable creditworthiness criteria in their tariffs. The Board believes that the Board will have the authority to require additional financial security where it finds it appropriate. The language of the paragraph is not mandatory but permissive.

The Board believes that an emergency demonstration of financial capability is included in the requirements in the adopted paragraph and the requirement that a CNGP maintain the conditions of the application. The paragraph was adopted as proposed.

Comments were received concerning paragraph 19.14(6)“g.” NEM stated that this type of penalty should be a tariff associated with balancing each utility’s system. NEM considers the 300 percent penalty to be unreasonably high. It stated that an argument may be made for cost–based penalties in the event a particular nondelivery causes system reliability issues. Arguments can also be made for utilities to develop reasonable “no notice” service for marketers to use to ensure peak day deliveries. However, NEM stated that non–cost–based penalties should be avoided whenever possible.

Alliant suggested that it is impossible to enforce the provisions of this paragraph and recommended that the utilities handle balancing through tariffs.

IASB suggested that the penalty of three times the replacement cost is high, since the Iowa Joint Utility Management Program (IJUMP) has not had a failure of delivery in three years.

Peoples questioned how the penalty for underdelivery will be enforced. Peoples recommended that the penalty not be adopted and the Board allow the public utility to use appropriate methods in tariffs to ensure that the CNGP maintains system integrity and protects the small volume customer. The companies could adopt imbalance scheduling penalties to protect system integrity. Peoples disagreed with PACE’s comments concerning PACE’s Nebraska experience and contends that PACE’s comments are irrelevant to this rule making.

MidAmerican recommended establishment of uniform provisions for underdelivery to the small volume end user. MidAmerican questioned how the 90 percent was determined, how the “24–hour period” is defined, how the “failure to deliver” is measured (by nomination or actual delivery levels), and the meaning of “open market.” MidAmerican questioned when the underdelivery is to be determined, since it will not be known until the end of the billing period. Mid–American stated that it would be reasonable to let the public utility ensure that CNGPs maintain system integrity through tariff provisions for balancing and the penalties should be left to the public utility. MidAmerican stated that this is an area which is appropriate for public utility–specific provisions. Each LDC has different mixes for gas supply with different requirements. MidAmerican proposed the following language regarding provisions for supply failure and imbalance: “The public utility tariff shall include provisions that require a CNGP to deliver and receive volumes of natural gas equivalent to the volumes used by the small volume end users served by the CNGP. Such provisions shall be designed to maintain distribution system integrity, while at the same time preventing CNGPs from using a public utility’s distribution system resources as a supply source or a supply market. These provisions may be in the nature of balancing charges or penalties.”

PACE stated that because real–time metering is typically not in place for most of these customers, there would not be any way to tell what percentage of gas was delivered until the customer has gone through the monthly billing cycle. PACE stated that the penalties do not address overscheduling.

IAEC questioned how the penalty of three times the replacement cost was determined and suggested the term should be defined and asked how the replacement costs are to be reflected on the books of the receiving utility. IAEC questioned whether there is another mechanism to credit the payment of replacement costs other than the purchased gas adjustment (PGA).

Consumer Advocate stated that MidAmerican and Alliant raised some valid concerns, but the low and cost–based penalties proposed by NEM actually encourage arbitrage and make it easier for a CNGP to choose between providing promised service and paying penalties upon economic criteria. It would be more reasonable to have a uniform penalty provision rather than utility–specific provisions.

The Board proposed the penalty structure for supply failure to protect residential and other small volume customers who continue to take regulated service from the public utility. Without adequate penalties, marketers could attempt to short the public utility’s system when prices surge by selling their gas to an alternative higher priced market. The public utility could then be forced to purchase high priced gas to cover the amount not put in by the marketer.

In the case of critical short day penalties during 2000– 2001, pipelines have increased their penalty structures to very high levels. For instance, Northern Natural Gas increased its penalty to up to $11.30 per therm and Natural Gas Pipeline Company’s penalty ratchets up to as much as $20 per therm. Public utilities need to be able to have penalty structures that ensure that their supply cost failure penalty is not the least cost for a transporter to short against.

The Board agrees with the comments allowing the individual utilities the authority to establish replacement cost for supply failure in their tariffs. The Board’s agreement is based upon a recognition of the added flexibility that individual public utility tariffs would provide versus a rule establishing supply–failure penalty structures.

The Board revised this paragraph to allow the individual utility to set penalty provisions in its tariffs. The revision will allow the Board to review these provisions for reasonableness in the tariff filings. Also, this incorporates more flexibility for future changes to these provisions since they would be set by tariff provision rather than rule. The Board agrees that it is difficult to develop a single rule that would take into account the characteristics of each regulated utility. Nonetheless, the Board feels it is likely that any proposed tariff–based penalty structures for transporters to small volume customers are likely to be constructed to be complementary to the similar penalty structures for transporters to large volume end users.

Although the Board removed the language regarding rule–based penalty structures that specifies a CNGP will pay the utility three times the actual replacement cost for the natural gas, the removal of the language should not be taken to mean that the Board would oppose tariff–based penalty structures that might be at similar levels.

These amendments are intended to implement Iowa Code sections 476.86 and 476.87.

These amendments will become effective April 25, 2001.

The following amendments are adopted.

ITEM 1. Amend rule 199—2.2(17A,474) by adopting new subrule 2.2(18) as follows:

2.2(18) Application for certification of competitive natural gas provider (CNGP).