Pages 1020 to 1102 include ARC 1223B to ARC 1284B

Filed, Iowa organic program, ch 47
ARC 1268B 1086

Schedule for rule making 1012

Publication procedures 1013

Administrative rules on CD–ROM 1013

Agency identification numbers 1018

CITATION OF ADMINISTRATIVE RULES 1017

Notice, Waivers and variances, 1.2(2), 1.2(3)
ARC 1274B 1020

Notice, Senior internship program (SIP),
amendments to chs 1, 5, 10 to 12
ARC 1273B 1022

Notice, Energy bank program, 6.1 to 6.8
ARC 1259B 1027

Notice Terminated, Permits or permits
by rule—hot mix asphalt facilities, concrete
batch plants and aggregate processing plants,
20.2, 20.3, 22.1(1), 22.8 ARC 1250B 1033

Notice, Water quality; effluent and pretreatment,
61.2, 61.3(3), 62.8(2) ARC 1245B 1033

Notice, Beverage container deposits,
107.1 to 107.17 ARC 1246B 1035

Notice, Financial assurance requirements
for municipal solid waste landfills, 111.3, 111.4,
111.6, 111.8, 111.9 ARC 1263B 1039

Notice, Financial responsibility for
underground storage tanks, 136.2, 136.18(1),
136.23(6) ARC 1262B 1042

Filed, Controlling pollution—Title V permits,
22.105(1), 22.113(4) ARC 1260B 1086

Filed, Preconstruction filing of manure
management plan, 65.11(1), 65.16
ARC 1249B 1086

Filed, Certification of groundwater professionals,
134.2(3), 134.3 ARC 1248B 1087

Filed, Underground storage tanks—notification
requirements, 135.3 ARC 1247B 1088

Notice, Service of notice of hearing in
a contested case, 7.5(3) ARC 1272B 1043

Notice, Inventory guidelines for state of Iowa
personal and real property, 10.2, 10.3,
10.6 ARC 1280B 1043

Notice, Procedures for rule making, petitions for
rule making, and declaratory orders,
3.3(2), 3.4 to 3.6, 3.11(1), 3.12(1), 4.1,
4.3, 5.1, 5.3(3), 5.5, 5.6(2), 5.8(1), 5.9(1)
ARC 1226B 1044

Notice, Collection of overpayments, 11.1
ARC 1227B 1047

Notice, SSA and Medicaid—annual
cost–of–living adjustments, 51.4(1), 51.7,
52.1, 75.5(3), 75.16(2) ARC 1233B 1047

Notice, Medicaid policy—dental services, 78.4,
78.28(2), 79.1(20) ARC 1228B 1048

Notice, Medicaid policy—optometric and
optical services, 78.6, 78.7, 78.28(3)
ARC 1229B 1050

Notice, Medicaid policy—submittal of
provider claims, 80.2(2), 80.4 ARC 1223B 1052

Notice, Policy—psychiatric institutions,
85.1, 85.2, 85.6(2), 85.7(1) ARC 1224B 1053

Notice, Policy—social services block grants,
153.1 to 153.3, 153.5, 153.7, 153.8
ARC 1225B 1054

Filed, FIP assistance, 41.30(2)“d” ARC 1232B 1088

Filed Emergency, SSA and Medicaid—annual
cost–of–living adjustments, 51.4(1), 51.7, 52.1,
75.5(3), 75.16(2) ARC 1234B 1081

HUMAN SERVICES DEPARTMENT[441] (Cont’d)

Filed, Medicaid—audiology and hearing aid
services, 77.13, 78.14, 78.28(4) ARC 1235B 1089

Filed, Screening centers—coverage for a dental
hygienist’s services and provider application,
77.16, 78.18(8) ARC 1236B 1090

Filed, Child welfare targeted case management
services, 77.29, 78.33, 80.2(2), ch 186
ARC 1237B 1090

Filed, Medicaid—payment for allogeneic
bone marrow transplants, 78.1(20)“a”(2)
ARC 1238B 1093

Filed Emergency After Notice, Medicaid—
payment for liver, heart–lung and pancreas
transplants, 78.1(20)“a”(4) to (7)
ARC 1239B 1082

Filed, Medicaid—rehabilitation agencies,
78.19(1) ARC 1240B 1093

Filed, Nursing facility occupancy rate—
change in implementation date, 81.6(16)
ARC 1241B 1094

Filed, Early and periodic screening, diagnosis,
and treatment (EPSDT) program, 84.1, 84.3,
84.4 ARC 1242B 1094

Filed, Iowa plan for behavioral health,
88.65(3), 88.67(8), 88.73 ARC 1243B 1095

Filed, Child care grants program, 168.1, 168.2,
168.3(2), 168.4, 168.9 ARC 1244B 1096

Filed, Definition—experience or expertise;
verification of capital contributions, 25.1,
25.4(5) ARC 1270B 1097

Filed, Overpayment recovery unit, 71.1, 71.5
ARC 1269B 1098

Notice of workers’ compensation rate filing 1056

Filed, Process for sealing and certifying
documents; national examination; renewal
process; fees, amendments to chs 1, 2
ARC 1267B 1099

Notice, Licensure fees, 8.4, 9.5(1), 9.11(3),
10.3 ARC 1265B 1056

Notice, Mandatory reporting—judgments or
settlements; order for mental or physical
examination or alcohol or drug screening,
12.1, 12.2(2), 12.3 ARC 1264B 1057

Notice, Procedures for physicians
dispensing via automated system, 13.6(1)
ARC 1266B 1058

Notice, Land acquisition projects eligible for
ATV grant awards, 28.1, 28.10(2)
ARC 1256B 1059

Notice Terminated, Certified Type V flotation
devices, 37.13 ARC 1284B 1059

Notice, Specifications for inflatable flotation
devices (PFDs); personal flotation—operators
and passengers of personal watercraft, 37.13
ARC 1261B 1059

Notice, Boating speed and distance zoning,
40.20, 40.44, 40.48 ARC 1251B 1060

Filed, State aids to navigation, 41.2(1)
ARC 1253B 1099

Filed, Motor sizes for artificial lakes and
marshes, 45.4, 45.5 ARC 1254B 1100

Filed Emergency After Notice, State parks
and recreation areas, 61.2, 61.4, 61.5
ARC 1252B 1083

Filed, Endangered, threatened and special
concern animal species, 77.2 ARC 1258B 1100

Filed Emergency, Wildlife importation and
transportation, ch 104 ARC 1257B 1084

Filed, Nuisance wildlife control, ch 114
ARC 1255B 1101

Notice, Funeral directors, ch 101; 102.6, 102.9,
102.10; chs 103, 104 ARC 1271B 1061

Summarized list 1014

Notice, Clarification, removal and correction of
existing rules, amendments to chs 52 to 55,
58, 59 ARC 1283B 1068

Filed, Tax exemption—delivery charges for
electricity or natural gas; state sales tax
phase–out on energies, 15.13, 17.38
ARC 1281B 1101

Filed, Clarification, updating and technical
correction of existing rules, amendments to
chs 71 to 75, 78, 80 to 82, 84, 122, 125
ARC 1282B 1102

Notice, Confidentiality for certain information,
1.9(5)“c,” 1.9(8)“b”(3) ARC 1275B 1072

Notice, Assessment allocation rules, 17.1 to 17.8
ARC 1279B 1074

Notice Terminated, Application of overpayments
to level payment accounts, 19.4(11), 20.4(12)
ARC 1276B 1076

Notice, Certification of rural and nonrural
telecommunication carriers, 22.2(7)
ARC 1277B 1076

Filed Emergency, Lifeline assistance rates,
39.3(2)“b” ARC 1278B 1085

Notice, Technical corrections, amendments to
chs 1, 3, 4, 6, 8 ARC 1231B 1077

Notice, Filing information—electronic data
interchange (EDI), 2.6, 3.1, 11.2, 11.3, 11.7
ARC 1230B 1079

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.

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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

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To All Agencies:

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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

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.

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

The following list will be updated as changes occur:

AGRICULTURE AND LAND STEWARDSHIP DEPARTMENT[21]

Agricultural Development Authority[25]

Soil Conservation Division[27]

ATTORNEY GENERAL[61]

AUDITOR OF STATE[81]

CITIZENS’ AIDE[141]

CIVIL RIGHTS COMMISSION[161]

COMMERCE DEPARTMENT[181]

Alcoholic Beverages Division[185]

Banking Division[187]

Credit Union Division[189]

Insurance Division[191]

Professional Licensing and Regulation Division[193]

Accountancy Examining Board[193A]

Architectural Examining Board[193B]

Engineering and Land Surveying Examining Board[193C]

Landscape Architectural Examining Board[193D]

Real Estate Commission[193E]

Real Estate Appraiser Examining Board[193F]

Savings and Loan Division[197]

Utilities Division[199]

CORRECTIONS DEPARTMENT[201]

Parole Board[205]

CULTURAL AFFAIRS DEPARTMENT[221]

Arts Division[222]

Historical Division[223]

ECONOMIC DEVELOPMENT, IOWA DEPARTMENT OF[261]

City Development Board[263]

Iowa Finance Authority[265]

EDUCATION DEPARTMENT[281]

Educational Examiners Board[282]

College Student Aid Commission[283]

Higher Education Loan Authority[284]

Iowa Advance Funding Authority[285]

Libraries and Information Services Division[286]

Public Broadcasting Division[288]

School Budget Review Committee[289]

ELDER AFFAIRS DEPARTMENT[321]

EXECUTIVE COUNCIL[361]

GENERAL SERVICES DEPARTMENT[401]

HUMAN RIGHTS DEPARTMENT[421]

Community Action Agencies Division[427]

Criminal and Juvenile Justice Planning Division[428]

Deaf Services Division[429]

Persons With Disabilities Division[431]

Latino Affairs Division[433]

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

Status of Women Division[435]

HUMAN SERVICES DEPARTMENT[441]

INFORMATION TECHNOLOGY DEPARTMENT[471]

INSPECTIONS AND APPEALS DEPARTMENT[481]

Employment Appeal Board[486]

Foster Care Review Board[489]

Racing and Gaming Commission[491]

State Public Defender[493]

LAW ENFORCEMENT ACADEMY[501]

MANAGEMENT DEPARTMENT[541]

Appeal Board, State[543]

City Finance Committee[545]

County Finance Committee[547]

NATURAL RESOURCES DEPARTMENT[561]

Energy and Geological Resources Division[565]

Environmental Protection Commission[567]

Natural Resource Commission[571]

Preserves, State Advisory Board for[575]

PERSONNEL DEPARTMENT[581]

PUBLIC DEFENSE DEPARTMENT[601]

Emergency Management Division[605]

Military Division[611]

PUBLIC EMPLOYMENT RELATIONS BOARD[621]

PUBLIC HEALTH DEPARTMENT[641]

Substance Abuse Commission[643]

Professional Licensure Division[645]

Dental Examiners Board[650]

Medical Examiners Board[653]

Nursing Board[655]

Pharmacy Examiners Board[657]

PUBLIC SAFETY DEPARTMENT[661]

REGENTS BOARD[681]

Archaeologist[685]

REVENUE AND FINANCE DEPARTMENT[701]

Lottery Division[705]

SECRETARY OF STATE[721]

TRANSPORTATION DEPARTMENT[761]

Railway Finance Authority[765]

TREASURER OF STATE[781]

WORKFORCE DEVELOPMENT DEPARTMENT[871]

Labor Services Division[875]

Workers’ Compensation Division[876]

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

Pursuant to the authority of Iowa Code sections 17A.3 and 231.14, the Department of Elder Affairs hereby gives Notice of Intended Action to amend Chapter 1, “Introduction,” Iowa Administrative Code.

These amendments propose a uniform process for the granting of waivers and variances of rules adopted by the Department. These amendments are proposed in response to Governor Vilsack’s Executive Order Number 11 and Iowa Code section 17A.9A.

Consideration will be given to all written suggestions or comments on the proposed amendments received on or before January 29, 2002. Comments should be addressed to Mary Ann Young, Administrative Rules Coordinator, Iowa Department of Elder Affairs, 200 Tenth Street, Suite 300, Des Moines, Iowa 50309–3609; fax (515)242–3300; telephone (515)242–3312.

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

The following amendments are proposed.

ITEM 1. Amend subrule 1.2(2) as follows:

1.2(2) Applicability to various groups. The rules set forth herein apply to all grants awarded to any recipient through the department. Compliance with these administrative rules shall be mandatory, unless an exception a waiver is granted in accordance with the procedure in subrule 1.2(3).

ITEM 2. Rescind subrule 1.2(3) and adopt the following new subrule in lieu thereof:

1.2(3) Waivers. Pursuant to Iowa Code chapter 17A, the Iowa administrative procedure Act, waivers to the department’s rules may be granted in individual cases upon the director’s own initiative or upon request.

a. Definition. For purposes of this subrule, “waiver or variance” means action by the director that 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.”

b. Scope. This subrule outlines generally applicable standards and a uniform process for the granting of individual waivers from rules adopted by the director 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 subrule with respect to any waiver from that rule.

c. Applicability. The director may grant a waiver from a rule only if the director has jurisdiction over the rule and the requested waiver is consistent with applicable statutes, constitutional provisions, or other provisions of law. The director may not waive requirements or duties imposed by statute.

d. Criteria for waiver or variance. In response to a petition completed pursuant to this subrule, the director may in the director’s sole discretion issue an order waiving in whole or in part the requirements of a rule if the director 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.

e. Filing of petition. A petition for a waiver must be submitted in writing to the director as follows:

(1) 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 director.

(2) Other. If the petition does not relate to a license application or a pending contested case, the petition may be submitted to the director.

f. 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 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 1.2(3)“d.” 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 director 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 hearing, or investigative reports relating to the regulated activity or license within the last five years.

(6) Any information known to the requester regarding the director’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 director with information relevant to the waiver.

g. Additional information. Prior to issuing an order granting or denying a waiver, the director 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 director may, on the director’s own motion or at the petitioner’s request, schedule a telephonic or in–person meeting.

h. Notice. The director shall acknowledge a petition upon its receipt in the director’s office. The director 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 director may give notice to other persons. To accomplish this notice provision, the director may require the petitioner to serve the notice on all persons to whom notice is required by a provision of law and provide a written statement to the director attesting that notice has been provided.

i. Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings shall apply only to a petition for a waiver filed within a contested case.

j. 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.

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

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

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

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

k. Conditions. The director may place any condition on a waiver that is desirable to protect the public health, safety, and welfare.

l. 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 director, a waiver may be renewed if the director finds that grounds for a waiver continue to exist.

m. Time for ruling. The director 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 director shall grant or deny the petition no later than the time at which the final decision in that contested case is issued.

n. When deemed denied. Failure of the director to grant or deny a petition within the required time period shall be deemed a denial of that petition. However, the director shall remain responsible for issuing an order denying a waiver.

o. Service of order. Within seven days of its issuance, any order issued under this subrule 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.

p. 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 director is authorized or required to keep confidential. The director may accordingly redact confidential information from petitions or orders prior to public inspection.

q. Summary reports. Semiannually, the director 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 director’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.

r. Cancellation of a waiver. A waiver issued by the director pursuant to this subrule may be withdrawn, canceled, or modified if, after appropriate notice and hearing, the director 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.

s. 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 subrule 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.

t. Defense. After the director 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.

u. Judicial review. Judicial review of the director’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 director pursuant to Iowa Code section 17A.19.

ITEM 3. Amend 321—Chapter 1, implementation clause, as follows:

These rules are intended to implement Iowa Code chapter 231 and section 17A.9A.

Pursuant to the authority of Iowa Code sections 231.51 and 231.52, the Department of Elder Affairs hereby gives Notice of Intended Action to amend Chapter 1, “Introduction,” Chapter 5, “Department Fiscal Policy,” and Chapter 10, “Senior Community Service Employment Program (SCSEP),” and to rescind Chapter 11, “Retired Iowans Community Employment Program (RICEP),” and Chapter 12, “Coordination with the Job Training Partnership Act (JTPA),” Iowa Administrative Code.

The proposed amendments are intended to merge the Senior Community Service Employment Program (SCSEP) and the Retired Iowans Community Employment Program (RICEP), to create the Senior Internship Program (SIP). The Senior Internship Program (SIP) will encourage and promote the meaningful employment of Iowans aged 55 or older. The Department will subcontract with subproject sponsors through a competitive bid process. Subproject sponsors will administer the Senior Internship Program as described in 321—Chapter 10.

Any interested person may make written suggestions or comments on the proposed amendments on or before January 29, 2002. Written comments should be directed to Mary Ann Young, Administrative Rules Coordinator, Department of Elder Affairs, 200 Tenth Street, Suite 300, Des Moines, Iowa 50309–3609; fax (515)242–3300; E–mail MaryAnn.Young@dea.state.ia.us. Persons who wish to convey their views orally should contact Mary Ann Young at (515) 242–3312 or at the Department of Elder Affairs, 200 Tenth Street, Suite 300, Des Moines, Iowa 50309–3609.

A public hearing will be held at 10 a.m. on Tuesday, January 29, 2002, in Room 316, Hotel Fort Des Moines, Tenth and Walnut, Des Moines, Iowa, at which time persons may present their views on the proposed amendments either orally or in writing. At the hearing, persons wishing to speak will be asked to give their names and addresses for the record and to confine their remarks to the subject of the proposed amendments.

Anyone who wishes to attend the hearing and has special requirements such as hearing, vision, or mobility impairments or other special needs should notify the Department of Elder Affairs no later than 4 p.m. on Monday, January 28, 2002. Notice may be in writing or by telephone to (515) 242–3323.

These amendments are intended to implement Iowa Code chapter 231.

The following amendments are proposed.

ITEM 1. Amend the following definitions in rule 321— 1.7(231) as follows:

“Applicant” (RICEP) (SIP) means an eligible person making a contact with the RICEP SIP program to seek employment.

“Authorized position” (SCSEP) (SIP) means an enrollment opportunity during a program year allocated by the department.

“Educational services” (RICEP) means adult education or training provided by community colleges and similar institutions.

“Eligible individual” (SCSEP) (SIP) means a person who is 55 years of age or older who meets income guidelines published by the United States Department of Labor.

“Employment service” (RICEP) means activities in the client’s behalf that may be, but are not limited to, an assessment of job skills, referrals for training in job search techniques, referrals to educational institutions, referrals to job interviews, or supportive services that will enable the person to find employment.

“Enrollee” (SCSEP) (SIP) means an eligible individual who receives services, and is paid wages for engaging in community service employment under a project.

“Equitable distribution” (SCSEP) (SIP) means the ratio of the total authorized positions operated by the department and national sponsors compared to the number of authorized positions established on the basis of the eligible population.

“Host agency” (SCSEP) (SIP) means a public agency or private nonprofit organization, or private sector employer, other than a political party, exempt from taxation under Section 501(c)(3) of the Internal Revenue Code, which provides a worksite and supervision for an enrollee.

“Low income” (SCSEP) (SIP) means any person or persons whose actual individual or family income is less than 125 percent of the poverty guidelines issued annually by the U.S. Department of Labor in accordance with Section 507(2) of the Older Americans Act.

“National sponsor” (SCSEP) (SIP) means the American Association of Retired Persons, Green Thumb, Inc., the National Council of Senior Citizens, National Senior Citizens’ Education and Research Center, Inc. or any other national organization which is allocated positions by the United States Department of Labor.

“Physical examination” (SCSEP) (SIP) means a medical examination performed by a physician or a medical professional under the supervision of a physician, to determine if the enrollee is capable of fulfilling the duties of a work assignment.

“Physical examination waiver” (SCSEP) (SIP) means a signed statement by an enrollee or applicant which verifies that the enrollee or applicant was offered the opportunity to take a physical examination, but refused to take it.

“Quarterly progress report” (SCSEP) (SIP) means the report on enrollee activity and characteristics submitted to the Department of Labor from information gathered from the subprojects at the end of every three–month period during the fiscal year.

“Subproject sponsor” (SCSEP) SIP means an organization which has entered into a subproject agreement or contract with a project sponsor.

“Temporary position” (SCSEP) (SIP) means the authorized positions which exceed the number allocated by the Department of Labor.

“Termination” (SCSEP) (SIP) means a separation from the program.

“Unsubsidized employment” (SCSEP) (SIP) means a position where wages, fringes and other expenses for a terminated enrollee are not paid with SCSEP SIP funds.

“Worksite” (SCSEP) (SIP) means the actual location where enrollees perform their duties.

ITEM 2. Amend rule 321—1.7(231) by adopting the following new definitions in alphabetical sequence:

“Assessment of job skills” (SIP) means a process by which the senior internship program coordinator develops a written history of the work experience and related qualities an individual possesses that would make the individual marketable as an employee.

“Individual development plan (IDP)” means the plan developed in partnership with the enrollee to reflect the needs of the enrollee as indicated by the assessment, as well as the expressed interests and desires of the enrollee.

“One–stop delivery system” (SIP) means a workforce system connecting employment, education, and training services into a coherent network of resources at the local, state, and national level.

“Senior internship program” (SIP). See 321—Chapter 10.

“Senior internship program coordinator” means a person employed by the subproject sponsor whose responsibility it is to develop jobs, advocate for the employment of eligible individuals and provide employment services for eligible individuals, including Title V enrollees.

“Workforce Investment Act of 1998”(SIP) means the law providing the framework for a national workforce preparation and employment system designed to meet both the needs of the nation’s businesses and the needs of job seekers and those who want to further their careers.

ITEM 3. Rescind and reserve paragraph 5.1(2)“d.”

ITEM 4. Adopt the following new subrule 5.1(3) and renumber subrules 5.1(3) to 5.1(5) as 5.1(4) to 5.1(6).

5.1(3) Title V funds and SIP state appropriations shall be allocated through a contractual agreement between the department and the subproject sponsor.

ITEM 5. Amend renumbered paragraph 5.1(5)“b” as follows:

b. The total cash budget shall include AOA Title III funds, USDA cash, Title V employment funds, state funds, program income, local public funds and other cash used as match.

ITEM 6. Amend renumbered paragraph 5.1(5)“e” as follows:

e. Neither Title V nor SIP funds shall not be carried over.

ITEM 7. Amend renumbered subrule 5.1(6) as follows:

5.1(6) Expenditures in rural areas. The department shall allot to rural areas at least 105 percent of the amounts these areas spent under Titles Title III and V of the Act during the fiscal year 1978.

ITEM 8. Amend paragraph 5.2(2)“b” as follows:

b. Title V. The department shall calculate Title V allotments to AAAs based on the existing distribution and the need for additional service in underserved areas. Title V funds and senior internship program (SIP) funds shall be allotted between the SIP subproject sponsors according to the number of Title V slots designated for their project. If two or more subproject sponsors combine resources, the subproject sponsors shall be treated as one agency for funding purposes.

ITEM 9. Rescind and reserve subrule 5.7(3).

ITEM 10. Amend rule 321—5.8(231) by adopting the following new subrule:

5.8(3) Unused Title V and senior internship program (SIP) funds. If the department determines prior to the end of the fiscal year that a subproject sponsor will have unused funds, the department may reallot the unused funds to one or more subproject sponsors in accordance with demonstrated utilization. The subproject sponsors receiving these reallotted funds shall obligate them by the end of the fiscal year in which they are reallotted.

ITEM 11. Amend rule 321—5.9(231) by adopting the following new subrule 5.9(5) and renumbering existing subrules 5.9(5) and 5.9(6) as 5.9(6) and 5.9(7).

5.9(5) Title V and SIP match requirements. Subproject sponsors must provide, or arrange through third parties, matching funds amounting to a percentage of the cost of the project as designated in the subproject sponsor contractual agreement with the department.

a. Subproject sponsor contributions may be cash or in–kind or a combination of both;

b. Projects may generate a fee for service or charge a host agency fee. In accordance with current Department of Labor administrative regulations and the terms and conditions of the grant award, program income shall be added to the federal funds committed to the project and shall be used to further eligible project or program objectives.

ITEM 12. Amend rule 321—5.13(231) by adopting the following new subrules:

5.13(1) Title V SIP reports. Subproject sponsors are required to submit all performance and fiscal reports following the procedures and requirements established by the department.

5.13(2) Reserved.

ITEM 13. Amend subrule 5.14(11) as follows:

5.14(11) Additional requirements under Title V and senior internship program (SIP). In the acquisition of property under Title V, senior employment, or SIP the AAA subproj–ect sponsor shall ensure that:

a. All contracting and similar arrangements for goods, equipment and services shall be in compliance with the standards contained in federal regulations, 29 CFR Part 97, March 11, 1988, unless a higher standard is elsewhere expressed by Iowa law.

b. All capital equipment purchases with grant funds of items with a unit acquisition cost of $500 or more shall be approved by the department prior to purchase.

c. The AAA subproject sponsor will pay 25 percent of the acquisition cost for excess property purchased with grant funds; and.

ITEM 14. Amend 321—Chapter 10 as follows:

CHAPTER 10
SENIOR COMMUNITY SERVICE EMPLOYMENT PROGRAM (SCSEP) SENIOR INTERNSHIP
PROGRAM (SIP)

10.1(1) Scope. All procedures and rules used to operate this program shall be in accordance with Title V of the Older Americans Act as amended November 13, 2000, 20 CFR 641, in 1984, and 20 CFR 674, and these rules, and the contractual agreement between the department and the subproj–ect sponsor.

10.1(2) Purpose. SIP is designed to encourage and promote the meaningful employment of Iowans aged 55 or older in both the public and private sectors. Available services may include, but are not limited to, job readiness training, counseling, skills assessment, job development, classroom and on–the–job training.

10.2(1) Individual’s eligibility. To be eligible for participation in the SCSEP SIP, an applicant shall:

a. Be aged 55 or older;

b. Be a current resident of the state of Iowa; and a citizen of the United States; and

c. Meet income guidelines established annually by the U.S. Department of Labor. Be unemployed or underemployed at the time of application.

a. Be aged 55 or older;

c. Meet income guidelines established annually by the U.S. Department of Labor relating to Title V eligibility.

10.2(2) 10.2(3) Priority eligibility. A person who is eligible and who has priority status as defined in subrule 10.3(1), paragraph “a,” 10.4(2), paragraph “c,” will be given first consideration for an SCSEP a Title V position.

10.4(1) Participating agencies. Public, private and not–for–profit organizations will be contacted to respond to a request for proposal (RFP). Agencies will be selected to operate SIP through the request for proposal process and those selected will become subproject sponsors as defined in paragraph 10.5(2)“a.”

10.3(1) 10.4(2) Subproject sponsor responsibilities. Each SCSEP subproject sponsor shall: Sponsor responsibilities for SIP shall include the following:

a. Ensure that priority in providing employment positions shall be given to eligible individuals who are aged 60 or over, are applying for reenrollment, are below the poverty level, or who have temporary positions; Implementation of recruitment methods that ensure that the maximum number of eligible individuals have access to and participate in employment opportunities and the Title V program; and

b. Meet performance goals based on Department of Labor guidelines and additional goals established in the multiyear area plan; Subproject sponsors shall designate a member of their staff as a senior internship program coordinator to ensure program performance;

c. Coordinate the SCSEP with the retired Iowans community employment program and the Job Training Partnership Act, older individuals program, to ensure opportunities for unsubsidized employment; For persons identified eligible for the Title V portion of the program, all procedures and rules shall be in accordance with Title V of the Older Americans Act as amended November 13, 2000, and 20 CFR 641. For Title V enrollees, subproject sponsors shall:

g. (9) Assist enrollees in attending accessing approved training sessions; sponsored by the department or other agencies or organizations;

o. (10) Provide enrollees and host agencies with orientation to program purposes, goals and requirements;

p. (11) Provide access to supportive services where needed by an enrollee for participation in the program;

q. (12) Provide written job descriptions to enrollees immediately after entry into the program;

s. (13) Provide each enrollee with a copy of the host agency grievance procedures and the subproject sponsor’s grievance procedures;

w. (16) Maintain the authorized enrollment level and provide for temporary positions with approval of the department when underspending occurs; unless approval has been received from the department to operate at a decreased level;

x. (17) Perform evaluations of each host agency at least annually;

y. (18) Coordinate and cooperate with national sponsors in the establishment of authorized positions in each county in accordance with equitable distribution requirements as appropriate; and

z. (19) Maintain records as required in these rules and reports required by the Department of Labor and the department of elder affairs;

10.4(3) Program coordination with one–stop delivery system.

10.3(2) 10.4(4) Department responsibilities. The department shall:

a. Issue instructions for application for SCSEP funds in the multiyear area plan; a request for proposal for application for senior internship funds;

b. Monitor subproject sponsors at least annually as required in 10.6(2);

c. Provide training and technical assistance to subproj–ect sponsors upon request or when monitoring indicates compliance violations or failure to meet performance goals;

d. Provide training workshops for enrollees, SCSEP SIP coordinators and other subproject sponsor employment staff, subject to availability of funding;

e. Coordinate the allocation of authorized positions with national sponsors according to equitable distribution requirements;

f. Report to the Department of Labor annually on the status of equitable distribution efforts;

g. Rescinded IAB 11/13/91, effective 12/18/91; Submit to the governor a state senior employment services coordination plan consistent with the provisions of Title V;

h. Report to the Department of Labor as required by Title V of the federal Act each quarter or as required on SCSEP activity and enrollee characteristics;

i. Coordinate the SCSEP SIP with the job service division of the department of employment services, workforce development, the department of education, the department of economic development and other agencies which provide employment services to elder Iowans; and

j. Maintain records as required by 321—subrule 5.13(1).

10.3(3) 10.4(5) Complaints procedures. The department shall resolve complaints of applicants, enrollees, subproject sponsors and host agencies following these procedures:

a. An applicant or enrollee shall report in writing to the subproject sponsor an alleged violation of law or perceived unfair treatment within 15 days of its occurrence. Any adverse action taken against an enrollee shall be issued to the enrollee in writing stating the reasons for the determination, the enrollee’s right to appeal, and the procedures to follow in the appeal process.

b. The subproject sponsor Subproject sponsors and the host agency shall develop complaint procedures and an appeal process to resolve any issue arising between the sponsor and an enrollee or applicant. Procedures shall provide the following as a minimum: which provide for resolution within 15 days of the official filing.

d c. The department shall immediately refer the complaint to the department of inspections and appeals for its consideration. The department of inspections and appeals shall render a decision within 15 days after receipt of the complaint from the department.

e d. Complaints alleging violation of law may be appealed to the Department of Labor if not resolved by the host agency, subproject sponsor or the department within 60 days of the original filing.

f e. Complaints alleging discrimination on the basis of race, color, sex, national origin, handicap or age, which are not resolved by the host agency, subproject sponsor or the department within 60 days, may be filed with the Director, Office of Civil Rights, U.S. Department of Labor, Washington, D.C. 20210. These complaints will be handled in accordance with the procedures in 29 CFR Parts 31 and 32 (July 1, 1990).

g f. Complaints not alleging discrimination or violation of statute may be appealed to the department, but are not subject to appeal to the Department of Labor.

10.4(1) 10.5(1) Application. Application for SCSEP SIP funds shall be made by proposals submitted to the department. annually by area agencies on aging as part of the multiyear area plan submitted to the department for approval and shall conform to the procedures and requirements established in the multiyear area plan outlined in rules 4.20(231) and 4.21(231).

10.4(2) 10.5(2) Award. Upon approval by the department, an award of funds shall be made to subproject sponsors each fiscal year subject to funding by the U.S. Department of Labor and the requirements for equitable distribution. The department shall select subproject sponsors in accordance with the following criteria:

c. Factors which may be considered include evaluations of the existing management and administrative capabilities of the organization;

10.4(3) 10.5(3) Denial of award. An application for SCSEP SIP funding by a subproject sponsor may be denied if the subproject sponsor does not perform according to the guidelines of these rules or fails to meet the goals of their multiyear area plan requirements of the Older Americans Act as amended on November 13, 2000. approved by the department.

10.4(4) 10.5(4) Appeal. An appeal to a decision made pursuant to these rules may be made according to the procedures outlined in subrule 10.3(2), paragraph “g,” 10.4(5) of these rules.

10.4(5) 10.5(5) Reallocation. Reallocation of SCSEP Title V funds may be made by the executive director according to the criteria defined in subrule 5.8(1), paragraph “b.”

10.5(1) 10.6(1) Subproject sponsor duties. The subproj–ect sponsor shall:

a. Submit performance, fiscal and program reports to the department according to instructions provided each year in the reporting manual in accordance with procedures established by the department;

b. Maintain files on each SCSEP Title V enrollee containing the following: Immigration and Naturalization Service I–9 (Proof of Citizenship), application, enrollment form, recertifications (if applicable), skills assessments, training record, terms of employment agreement, physical examination report (or properly executed waiver), individual development plan (IDP), job description, performance evaluations, disciplinary actions, payroll records, and termination forms (if applicable); and

c. Maintain files for each host agency or worksite, and each file shall include:

(1) The host agency or worksite agreement containing relevant program requirements;

(2) Evidence that the host agency or worksite enrollee supervisor has received orientation; and

(3) Host agency or worksite evaluation reports.

10.5(2) 10.6(2) Department duties. The department shall:

a. Conduct desk monitoring of the SCSEP SIP and may do on–site monitoring if circumstances require an inspection of subproject sponsor records;

b. Conduct an on–site assessment of each SCSEP SIP subproject at least annually. The subproject sponsor shall be informed in writing of findings and recommended corrective actions. Assessment reports and responses shall be kept on file at the department and shall be open to inspection by authorized state and federal officials;

c. Maintain files on SCSEP Title V enrollees that include applications, recertifications, physical examination records, physical examination waivers, and termination forms (if applicable); and

d. Maintain financial records as required by statute, regulation, administrative rule, or technical bulletin.

These rules are intended to implement Iowa Code chapter 231.

ITEM 15. Rescind 321—Chapters 11 and 12.

Pursuant to the authority of Iowa Code section 458A.4, the Director of the Department of Natural Resources gives Notice of Intended Action to amend Chapter 6, “Energy Bank Program,” Iowa Administrative Code.

The purpose of this rule making is to modify Chapter 6 to account for the provisions of 2001 Iowa Acts, Senate File 462, which enables authorization of financing for all cost–effective energy management improvements, and to clarify and streamline the practices and procedures of the Department’s Building Energy Management Programs.

Any person may make written suggestions or comments on the proposed amendment on or before January 29, 2002. Written comments should be directed to Bill Blum, Department of Natural Resources, Energy and Geological Resources Division, Wallace State Office Building, Des Moines, Iowa 50319–0034; fax (515)281–8895. Persons who wish to convey their views orally should contact Bill Blum at (515)281–6486 or at the Division offices on the fourth floor of the Wallace State Office Building, Des Moines, Iowa.

A public hearing will be held on January 29, 2002, at1 p.m. in the Fourth Floor East Conference Room of the Wallace State Office Building at which time persons may present their views on the proposed amendment either orally or in writing. At the hearing, persons who wish to comment orally will be asked to give their names and addresses for the record and to confine their comments to the subject of the proposed amendment.

Any persons who intend to attend the public hearing and have special needs such as those related to hearing or mobility impairments should contact the Department at (515) 281–4968 and advise of specific needs.

These rules are intended to implement Iowa Code sections 473.13A, 473.19 and 473.20 and 10 CFR 420 (1976).

The following amendment is proposed.

Amend 565—Chapter 6 as follows:

CHAPTER 6
ENERGY BANK PROGRAM BUILDING ENERGY MANAGEMENT PROGRAMS

565—6.1(473) General. The energy bank program is Building energy management programs are established for public school and private schools, merged area school schools, area education agency agencies, city cities, county counties and other political subdivision buildings and facilities subdivisions, hospitals, healthcare facilities, private colleges, nonprofit organizations, and the state and state agencies to reduce energy consumption and energy costs. This program is These programs are established under Iowa Code sections 473.13A, 473.19 and 473.20 and follows follow the guidelines of 10 CFR 420 (1976).

Public The state of Iowa and its agencies, public schools, merged area schools, area education agencies, cities, counties and other political subdivisions of the state are required to identify and implement through energy audits and comprehensive technical engineering analyses all cost–effective energy management improvements for which the building energy management programs make financing is made available to the entity. Private schools and colleges, hospitals, healthcare facilities, and nonprofit organizations are also authorized and encouraged to participate in building energy management programs.

The program will be These programs are administered by the energy and geological resources division of the Iowa department of natural resources.

The program will be These programs are carried out by:

1. Conducting energy audits as needed on buildings and facilities owned or leased by the local government; conducting energy audits as needed on buildings and facilities owned or leased by a school mandated and eligible institutions;

2. Implementing operation and maintenance procedures;

3. Conducting comprehensive technical engineering analyses as needed to identify energy management improvements;

4. Establishing an energy bank and energy loan program;

5. Funding or arranging financing for cost–effective energy management improvements;

6. Establishing energy accounting procedures; and

7. Providing for appeals and reporting measures.

6.1(1) Purpose and scope. This chapter establishes requirements for eligibility, and procedures for conducting an energy audit, conducting a comprehensive technical engineering analysis, establishing an energy bank, establishing a loan program, funding and arranging financing for cost–effective energy management improvements, and providing for possible appeals and enforcement measures.

6.1(2) Definitions. For the purpose of these rules:

“Analyst” means a registered licensed professional engineer or architect in the state of Iowa who has satisfied the requirements for being placed on the department’s list of qualified analysts as set out in the department’s technical engineering analysis guidelines.

“Average Aggregate simple payback period” means the total estimated cost of all studied and recommended energy management improvements in a building or facility, divided by the total estimated annual energy cost savings.

“Btu” means British thermal unit, a unit units, units of heat energy measurement.

“Building” means any structure that is heated, cooled, or lighted.

“Cost–effective” means that an energy management improvement or package of energy management improvements will, within the useful life of the improvement(s), generate savings sufficient to pay for the total costs of implementing the improvement(s). Under no circumstances is any improvement or package of improvements cost–effective if the time needed for the savings to pay for the improvement(s) exceeds the expected remaining useful life of the building or facility in which the improvement(s) is implemented.

“Department” means the department of natural resources.

“Energy accounting system” means a computerized or manual mechanism that allows schools and local governments facilities to track, at a minimum, their monthly energy consumption by unit and cost per square foot, and Btu’s Btu per square foot per degree day.

“Energy audit” means an energy survey of a building that is conducted by means of a walk–through during a visit to the building or facility in accordance with requirements of rule 6.3(473).

“Energy auditors” means paraprofessionals, approved by the department, trained and qualified in energy auditing and in identifying energy management improvements. This includes certified energy managers as designated by the association of energy engineers.

“Energy management improvement” means construction, rehabilitation, acquisition, or modification of an installation, of any of the fixtures, or of any of the equipment in a building or facility, which is intended to reduce energy consumption or energy source, and which may contain integral control and measurement devices.

“Facility” means any structure, system or processing site that consumes energy to carry out a function or service of the local government a mandated or eligible institution, including motor vehicles and other its installed energy–consuming machinery.

“Local government” means any city, county, municipality, or any other political subdivision of the state of Iowa.

“Mandated and eligible institutions” means (1) the state, state agencies, political subdivisions of the state, school districts, area education agencies, and community colleges that are required under Iowa Code section 473.13A to identify and implement, through energy audits and technical engineering analyses, all energy management improvements for which financing is made available by the department; and (2) private schools and colleges, hospitals, healthcare facilities, and other nonprofit organizations that are authorized and encouraged to also participate in building energy management programs.

“School” means any public school district, area education agency, or merged area school (public community colleges and vocational/technical schools) which is defined by the department of education administrative rules in 281—Chapter 1.

“Simple payback period” means the time required for the cumulative savings from an energy management improvement project to recover its initial investment cost and other accrued costs, without accounting for the time–value of money. It is calculated by dividing the estimated total cost costs of each measure acquiring the materials and installation for the implementation of an energy management improvement including, but not limited to, design, materials, and installation divided by the estimated annual savings for the measure energy management improvement. For renewable and coal conversions, savings are based on the fuel replaced.

“Square feet” means the total gross conditioned floor area of a building or facility.

“Technical engineering analysis” means the thorough examination of, and written report for, a building or facility, conducted in accordance with the current guidelines established by the department. A technical engineering analysis identifies energy management improvement opportunities, including operations and maintenance improvements, with estimated costs of the improvements broken down by materials and installation costs, estimated annual cost savings by fuel type, and calculated simple payback periods. The analysis report is signed and certified by an analyst who is employed by a firm on the list of qualified engineering/architectural firms that is maintained by the department and updated periodically according to the most current guidelines established by the department.

565—6.2(473) Applicability. The requirements of this chapter apply to all buildings and facilities owned or leased by a school or local government mandated or eligible institutions.

6.2(1) Applicability for energy audit. An energy audit is required for all buildings and facilities that are a part of a school or local government mandated or eligible institutions and that meet the criteria identified in rule 6.3(473).

6.2(2) Applicability for comprehensive technical engineering analysis. A comprehensive technical engineering analysis is required for all buildings and facilities for which (a) an energy audit has been prepared, or (b) the department has recommended as having potential for installation of energy management improvements, and (c) the criteria identified in rule 6.4(473) have been met.

6.2(3) Applicability for energy bank building energy management programs. The energy bank is Building energy management programs are applicable to all buildings and facilities for which:

a. The school or local government A mandated or eligible institution provides a comprehensive technical engineering analysis and summary of recommended energy management improvements approved by the department, and a schedule for implementation of existing and new operation and maintenance procedures; or the school or local government mandated or eligible institution provides an energy audit, or small building energy audit, whichever the department authorizes as appropriate, and a summary or of recommended energy management improvements approved by the department for a building or facility not meeting the criteria identified in rule 6.4(473). ;

b. Energy management improvements have been recommended by the department. ; and

c. The school or local government mandated or eligible institution has no formal plan adopted by its own governing body, including any formal plans which are subject to the occurrence of any conditions precedent, to close or otherwise dispose of the building or facility within the average during the aggregate simple payback period for which funding is requested.

6.3(1) Objective. The purpose is to conduct an initial energy survey of a building buildings or facility facilities, as preapproved by the department, to identify operation and maintenance procedures and their scheduled implementation, and to identify potential energy management improvements, in accordance with the energy audit guidelines established and periodically updated by the department. and establish In addition, an energy audit may serve as a basis for proceeding with the comprehensive a technical engineering analysis if authorized by the department.

6.3(2) Qualified auditors. Energy audits shall be conducted by any of the following:

e. A person, firm, or certified energy manager as approved preapproved by the department.

6.3(3) Contents of an energy audit. The energy audit will be completed on forms prescribed or and approved by the department, and in accordance with the energy audit guidelines established and periodically updated by the department. and will include, but not be limited to, the following information:

6.4(1) Objective. The objective of the comprehensive technical engineering analysis is to perform a comprehensive examination and written report to identify and analyze opportunities for energy management improvements, and improved operation and maintenance procedures, with estimates of cost costs and annual cost savings and add additional operation and maintenance procedures.

6.4(2) Comprehensive Technical engineering analysis required conducted. Comprehensive Technical engineering analyses shall be required conducted for all buildings or facilities recommended by the department as follows in accordance with the following criteria:

a. Energy management improvements recommended by an energy audit for the building or facility which have an aggregate cost of $15,000 or more. Annual Btu consumption per square foot, compared with similar building or facility types as determined by the department on a periodic basis;

b. Energy management improvements recommended by an energy audit for the building or facility which have an aggregate cost of less than $15,000, which involve complex energy management improvements such as heating, ventilation and air conditioning. If applicable, the type or nature of energy audit findings;

6.4(3) Procedures.

a. To initiate the comprehensive engineering analysis, the school or local government shall Mandated and eligible institutions select and contract with an analyst qualified to perform the comprehensive technical engineering analysis analyses. Requests A request for proposal proposals shall be sent by the school or local government each participating mandated or eligible institution to all firms on the qualified analyst list maintained by the department. The department may modify requirements in the procurement of the firm consistent with applicable state and federal regulations. Following accepted practices, the school or local government mandated or eligible institution will select the qualified firm that best meets its needs and that has no conflicts of interest with the institution.

b. Schools and local governments In accordance with the department’s technical engineering analysis guidelines, each participating mandated or eligible institution shall identify the need needs the institution wants considered for a in its comprehensive technical engineering analysis.

c. Upon request of the school or local government mandated or eligible institution, the department may allow the school or local government to undertake the completion of comprehensive technical engineering analyses of all of its the institution’s buildings or facilities in phases or stages.

d. Upon completion and the mandated or eligible institution’s receipt by the school or local government of the comprehensive of the completed technical engineering analysis, a copy is to be submitted by the school or local government to the department.

The department will review the comprehensive technical engineering analysis and notify the school or local government mandated or eligible institution of any technical concerns that should need to be discussed and resolved by the school or local government and the analyst.

The department will approve or reject the comprehensive technical engineering analysis based on its compliance with the department’s Technical Engineering Analysis Guidelines, which is are periodically updated by the department.

6.4(4) Contents of a comprehensive technical engineering analysis.

a. The comprehensive technical engineering analysis shall include the information required in rule 565—8.2(473) and the current Technical Engineering Analysis Guidelines as adopted developed, maintained, and periodically updated by the department.

6.4(5) Exemptions. The required comprehensive technical engineering analysis may be waived by the department if the school or local government has a formal plan adopted by the governing body, including any plan which is not subject to the occurrence of any conditions precedent, to close or otherwise dispose of the building or facility within the simple average payback period for energy management improvements contained in the building’s or facility’s energy audit on a case–by–case basis as negotiated with the department.

6.4(6) Analyst firms retained. Qualified analyst firms Mandated and eligible institutions shall be retained retain qualified analyst firms that are free from conflicts of interest with the respective institutions by the school or local government to perform the professional services required for each comprehensive technical engineering analysis. Qualification standards and procedures for analyst firms have been adopted by the department and are available upon request.

6.5(1) Objective. Energy All cost–effective energy management improvements are to be installed in all the buildings and facilities for which the schools or local governments aggregate payback is six years of all mandated and eligible institutions.

6.5(2) Installation of cost–effective energy management improvements required. Installation of cost–effective energy management improvements shall be required for buildings and facilities as follows:

a. Energy management improvements, as recommended by the comprehensive technical engineering analysis, which have an aggregate simple payback of six years that meets the criteria detailed in the Guidelines for Cost–Effective Energy Management Improvement Projects as adopted and periodically updated by the department.

b. Upon request of the school or local government a mandated or eligible institution, the department may allow the school or local government to undertake approve the installation of energy management improvements in phases or stages. The school or local government mandated or eligible institution shall submit an implementation schedule for the department’s approval.

6.5(3) Procedures.

a. Plans and specifications shall be prepared for selected energy management improvements by a qualified engineer selected by the school or local government mandated or eligible institution, provided the engineer has no conflict of interest with the institution.

b. Bidding, award, and installation of energy management improvements shall be accomplished in accordance with applicable state law.

c. Installation of energy management improvements shall be completed in a building or facility within 24 months of the review of the comprehensive technical engineering analysis and approval of the recommended energy management improvements by the department.

d. Upon completion of the installation of each energy management improvement, the school or local government mandated or eligible institution shall submit to the department a certificate of completion that:

(1) A certificate of completion which describes Describes the improvement, and its location, and cost; , certifies that the installation was in accordance with recommendations of the comprehensive engineering analysis, and certifies that the improvement is operating properly.

(2) A copy of the final “as built” plans and specifications. Certifies that the installation was in accordance with recommendations of the technical engineering analysis (noting instances of substantial changes of final project scope from original recommendations); and

6.6(1) Objective. The energy bank is Building energy management programs are established to provide direct funding, grants, loans, leases, and alternative financing for conducting energy audits, comprehensive and technical engineering analyses and for implementing energy management improvements.

6.6(2) Funding and financing sources.

a. Funding for this program these programs may be from gifts, federal grants, state appropriations, and other sources.

b. Financing for the program these programs may be provided by private sources as arranged by the department.

c. Costs of the comprehensive a technical engineering analysis may be included in financing for the installation of energy management improvements.

6.6(3) Funding for energy audits and comprehensive technical engineering analysis.

a. Six–month Short–term, interest–free loans and grants, as funds are available, will be provided by the department to the school or local government mandated and eligible institutions upon request to pay the professional audit and engineering fees for the energy audits and comprehensive technical engineering analysis analyses and to pay for the deferred billing of administrative costs recovery provided under subrule 6.6(5). Design costs for energy management improvements are considered for inclusion in the overall financing provisions of the building energy management programs.

b. Costs of the energy audit audits and comprehensive technical engineering analysis analyses, and payment for the recovery of administrative costs as provided under subrule 6.6(5), may be included in financing for the installation of energy management improvements, provided that within a six–month period of six months after the approval of the energy audits or the comprehensive technical engineering analysis analyses, the school or local government proceeds participating mandated and eligible institutions proceed to implement energy management improvements.

c. The energy loan program is established in the office of the treasurer of the state to be administered by the energy and geological resources division, department of natural resources, for the purpose of making loans and grants to schools and local governments mandated and eligible institutions to complete comprehensive technical engineering analyses. Funding for this program may come from gifts, federal funds, state appropriations, and other sources.

6.6(4) Funding for cost–effective energy management improvements.

a. Financing is available for all cost–effective energy management improvements identified in energy audits and comprehensive technical engineering analyses.

b. Energy management improvement financing shall be supported by, but not limited to, payments from energy savings resulting from the energy management improvements.

6.6(5) Program service fee Recovery of the programs’ administrative costs. The school or local government Participating mandated and eligible institutions shall help pay for the a program service fee programs’ administrative costs. Payment to the department shall be made within six months of completion the approval of the submitted energy audit audits or comprehensive technical engineering analysis analyses, based upon a sliding scale related to the total square footage of each building in the program, the total annual cost of utilities of each water and wastewater treatment facility, or on a case–by–case basis as agreed upon in advance by the school or local government a mandated or eligible institution and the department, in accordance with the schedule schedules adopted and periodically updated by the department.

6.7(1) Objective. Energy accounting procedures are established, as funds are available, for the purpose of:

a. Developing information for comparative and management review of energy and dollar consumption for the school or local government mandated and eligible institutions, and on a statewide basis to assist the school or local government them and the department to accomplish the goals of the energy bank program building energy management programs.

b. Comparing school and local government mandated and eligible institutions’ energy consumption and energy cost costs before and after energy management improvements have been installed in buildings or facilities to confirm energy and cost savings.

6.7(2) Energy accounting system participation. The energy accounting system established by the school or local government mandated and eligible institutions shall be in accord with requirements established by the department.

6.7(3) Procedures.

a. The energy accounting system will be initiated by the department by notifying selected schools or local governments mandated and eligible institutions. Instructions and guidelines will be provided by the department for participation.

b. Copies of previous and future monthly utility bills and other related information will be provided by the school or local government mandated and eligible institutions, upon request of the department, to:

(1) Establish energy consumption levels and energy costs prior to the installation of energy management improvements;

(2) Establish the current and future level of savings in energy consumption and costs after the installation of energy management improvements.

c. Reports will be developed, printed, and distributed under the department’s direction on a periodic basis.

6.8(1) Scope and applicability.

a. This rule provides procedures governing appeals from administrative orders to school and local governments mandated and eligible institutions concerning requirements of the energy bank program building energy management programs.

b. Rules of Iowa Administrative Code 561—Chapter 7, “Rules of Practice in Contested Cases,” shall govern appeals to the department.

6.8(2) Procedures.

a. Appeal procedures shall be in accord with Iowa Administrative Code 561—Chapter 7, “Rules of Practice in Contested Cases,” governing appeal of administrative orders of the department of natural resources.

b. Any school or local government mandated or eligible institution appealing an action of the department shall file a written notice of appeal within 30 days of the receipt of the department’s action. Written notice of appeal shall contain information explaining why the appeal is being made.

These rules are intended to implement Iowa Code sections 473.13A, 473.19 and 473.20 and 10 CFR 420 (1976).

Pursuant to the authority of Iowa Code section 455B.133, the Environmental Protection Commission terminates the rule making initiated by its Notice of Intended Action published in the Iowa Administrative Bulletin on June 13, 2001, as ARC 0736B.

The Notice proposed to amend Chapter 20, “Scope of Title—Definitions—Forms—Rules of Practice,” and Chapter 22, “Controlling Pollution,” Iowa Administrative Code. Action to amend Chapters 20 and 22 was initiated with a petition for rule making submitted in a letter to the Department dated April 16, 2001, from the Asphalt Paving Association of Iowa and Cessford Construction Company. The Notice and the petition were for the addition of three new “permits by rule” to air quality construction permitting regulations. These permits were for a hot mix asphalt plant, a concrete batch plant and an aggregate processing facility.

The Environmental Protection Commission is terminating the rule making commenced as ARC 0736B for the following reasons. The regional office of the U.S. Environmental Protection Agency has raised concerns about the proposed rule making that remain unresolved. Their concerns are sufficient to block incorporating these rules into the state implementation plan, thus rendering the permits as not federally enforceable. Resolving the issues raised by the EPA will take additional time. By February 1, 2002, the Department plans to have in place an alternative to the permit–by–rule concept, using the flexibility available in the existing regulations. Cessford Construction and the Asphalt Paving Association of Iowa have agreed that an alternative mechanism for permitting through the existing construction permit process would be acceptable. The U.S. Environmental Protection Agency raised significant objection to using a permit–by–rule process, but agreed that the existing construction permit process likely provides sufficient flexibility to accomplish the same goals. In addition, the 180–day deadline for adopting the proposed rule making will be exceeded next month. According to the Iowa Administrative Procedure Act, the Commission must terminate the rule making initiated by ARC 0736B. Staff will continue to work in resolving the issues raised by the EPA and continue to work with industry in achieving an expedited permitting process for these classes of facilities.

Pursuant to the authority of Iowa Code sections 455B.105 and 455B.173, the Environmental Protection Commission hereby gives Notice of Intended Action to amend Chapter 61, “Water Quality Standards,” and Chapter 62, “Effluent and Pretreatment Standards: Other Effluent Limitations or Prohibitions,” Iowa Administrative Code.

The proposed amendments will:

1. Establish a new process for deriving water quality–based effluent limits for point sources such as municipal wastewater treatment plants;

2. Provide new or changed numerical criteria for bromoform, chlorodibromomethane, chloroform, dichlorobromomethane, endrin, and chlorobenzene and eliminate the criteria for monochlorobenzene (monocholorbenzene is the same compound as chlorobenzene); and

3. Provide Section 401 certification for Corps of Engineers’ Section 404 nationwide and regional permits.

Items 1 and 2 are part of an ongoing comprehensive review of the state’s water quality standards while Item 3 is required to address the Corps’ recent actions to reissue nationwide and regional Section 404 permits.

The proposed change in the standards–to–permit derivation procedure is the result of two consultants’ reviews of the existing procedure and the Iowa Water Pollution Control Association’s (IWPCA) concerns that the existing procedure produces overly conservative (i.e., too stringent) permit limits for some facilities. The consultants’ reviews showed that the existing process, although developed in consultation with EPA staff and a stakeholder group over a decade ago, is not consistent with more recent EPA guidance. The proposed procedure differs from EPA guidance but has been reviewed by EPA headquarters and regional staff and has general concurrence from EPA staff and the IWPCA. The derivation procedure is contained in a rule–referenced document, “Supporting Document for Iowa Water Quality Management Plans,” and this document will be modified and the amendments will reflect the date of the revised document. Such implementation procedures are not water quality standards, but the proposed changes are being made as part of the comprehensive standards review.

The changes to the numeric criteria are being proposed to address new information and to correct some values that the EPA did not approve in their 1998 review of Iowa’s standards.

The recertification of the Corps nationwide permits (NWPs) and one regional permit for Iowa is needed before these general permits are effective in Iowa. Section 404 of the Clean Water Act requires a Corps permit for the discharge of dredged or fill materials into waters of the United States. Before the Corps can issue a Section 404 permit, Section 401 of the Act requires that the state water quality agency certify that the proposed activity will not violate state water quality standards. The Corps is authorized to issue general permits on a state, regional or nationwide basis for categories of activities where such activities will have minimal adverse effects, and the Corps has used this permit authority to issue a number of general permits. General permits, including nationwide permits, can be issued for a period not exceeding five years.

The Corps issued a notice of intent to reissue the existing NWPs, with some changes to the permits’ general conditions and definitions, and is proposing to reissue a regional permit authorizing bridge and roadway work. The proposed NWPs and associated permit conditions and limitations were published in the Federal Register (Volume 66, Number 154, August 9, 2001). The primary reason for reissuance of all NWPs is to synchronize the reissuance cycle as the existing NWPs now expire at different times. A copy of the Federal Register with the proposed NWPs can be obtained from the Department of Natural Resources. The Corps has requested comments on the proposed NWPs and, therefore, the NWPs adopted by the Corps may differ from the proposals as contained in the August 9, 2001, Federal Register. The Commission will not take final action on this proposed amendment prior to the Corps’ publication of the adopted NWPs and will consider all comments provided during the public comment period before taking final action.

The revised regional permit (RP7) would authorize work associated with bridge and roadway construction across waters of the United States. The revisions to RP7 include allowing a maximum of one acre regulated wetland to be filled in conjunction with the road crossing project (previously five acres) and providing more options for mitigating impacts to waters of the United States (e.g., in–stream habitat, installation of filter strips along the channel, etc.). RP7 was originally issued in 1979, has been reissued many times since, and expired on December 31, 2000. No amendments are being proposed as the existing rule already provides certification, but the Department is seeking input on whether the reissued RP7 should be certified.

The amendments would provide Section 401 certification for the reissued NWPs and RP7.

Any person may submit written suggestions or comments on the proposed amendments through February 18, 2002. Written comments should be submitted to Ralph Turkle, Department of Natural Resources, Wallace State Office Building, 900 East Grand, Des Moines, Iowa 50319– 0034, by fax (515)281–8895 or by E–mail to ralph.turkle@ dnr.state.ia.us. Persons who have questions on Items 1 and 2 listed above should contact Ralph Turkle at (515)281–7025. Persons who have questions on Item 3 should contact Christine Schwake at (515)281–6615. Additional information on Iowa’s water quality standards can be found on the Department’s Web site at http://www.state.ia.us/epd/prgrmdsc/wtrqual/sum.html. Copies of the Environmental Protection Commission’s rules may be obtained from Cecilia Nelson, Records Center, Department of Natural Resources, Wallace State Office Building, 900 East Grand, Des Moines, Iowa 50319–0034 or can be found at the following Web site: http://www.legis.state.ia.us/IAC.html.

Persons are also invited to present oral or written comments at public hearings which will be held at the following locations and times:

January 29, 2002, 10:30 a.m., in the Iowa City Public Library, Meeting Room A, 123 S. Linn Street, Iowa City;

January 30, 2002, 11 a.m., in the Cherokee Community Center, 530 W. Bluff Street, Cherokee;

February 1, 2002, 1 p.m., in the Clear Lake Community Meeting Room, 15 N. Sixth Street, Clear Lake;

February 4, 2002, 1 p.m., in the Municipal Utilities Conference Room, 15 W. Third Street, Atlantic;

February 5, 2002, 1 p.m., in the Decorah City Hall Meeting Room, 400 Claiborne Drive, Decorah; and

February 6, 2002, 1 p.m., in the Wallace State Office Building, 5th Floor East Conference Room, 900 East Grand Avenue, Des Moines.

These amendments may have an impact upon small businesses.

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

The following amendments are proposed.

ITEM 1. Amend 567—Chapter 61, all references to the document “Supporting Document for Iowa Water Quality Management Plans,” as follows:

“Supporting Document for Iowa Water Quality Management Plans,” Chapter IV, July 1976, as revised on November 8, 2000 March [date to be inserted], 2002

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

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

ITEM 3. Amend subrule 61.2(4), paragraph “f,” subparagraph (3), as follows:

(3) The statewide average background values presented in Table IV–5 Table IV–2 of the “Supporting Document for Iowa Water Quality Management Plans,” Chapter IV, July 1976, as revised on November 8, 2000 March [date to be inserted], 2002.

ITEM 4. Amend the following parameters listed in subrule 61.3(3), Table 1, Criteria for Chemical Constituents:

TABLE 1: Criteria for Chemical Constituents

(all values as micrograms per liter unless noted otherwise)

ITEM 5. Amend subrule 62.8(2) as follows:

62.8(2) Effluent limitations necessary to meet water quality standards. No effluent, alone or in combination with the effluent of other sources, shall cause a violation of any applicable water quality standard. When it is found that a discharge that would comply with applicable effluent standards in 62.3(455B), 62.4(455B) or 62.5(455B) or effluent limitations in 62.6(455B) would cause violation of water quality standards, the discharge will be required to meet whatever effluent limitations are necessary to achieve water quality standards, including the nondegradation policy of 567—subrule 61.2(2). Any such effluent limitation shall be determined using a statistically based portion of the calculated waste load allocation, as described in “Supporting Document for Iowa Water Quality Management Plans,” (Iowa Department of Water, Air, and Waste Management, July 1976, Chapter IV, as revised on March 20, 1990 March [date to be inserted], 2002). (Copy available upon request to the Department of Natural Resources, Henry A. Wallace Building, 900 East Grand, Des Moines, Iowa 50319. Copy on file with the Iowa Administrative Rules Coordinator.)

Pursuant to the authority of Iowa Code section 455C.9, the Environmental Protection Commission hereby gives Notice of Intended Action to amend Chapter 107, “Beverage Container Deposits,” Iowa Administrative Code.

Rules to be amended implement the provisions of Iowa Code chapter 455C, Beverage Containers Control Act. The rules in Chapter 107 also contain interpretive rules that clarify or interpret the statute, or apply the statute to factual situations.

The proposed amendments clarify and update labeling requirements, clarify the requirements for approval of redemption centers and exempt dealers, remove references to state–owned liquor stores, add reporting requirements for distributors and redemption centers, and add a public education component to Chapter 107.

Any interested person may make written suggestions or comments on these proposed amendments on or before January 29, 2002. Such written materials should be directed to Theresa Stiner, Land Quality and Waste Management Assistance Division, Department of Natural Resources, 502 E. 9th Street, Des Moines, Iowa 50319–0034; fax (515)281–8895. Persons who wish to convey their views orally should contact Theresa Stiner at (515)281–8646 or at the Wallace State Office Building.

Also, there will be a public hearing on January 29, 2002, at 1 p.m. in the Fourth Floor East Conference Room of the Wallace State Office Building, at which time persons may present their views either orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of the rules.

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

These amendments are intended to implement Iowa Code chapter 455C.

The following amendments are proposed.

ITEM 1. Amend rule 567—107.1(455C) as follows:

567—107.1(455C) Scope. This chapter is intended to implement the provisions of Iowa Code chapter 455C. The Act requires that every alcoholic liquor container, beer, mineral water, soda water or carbonated soft drink container sold in Iowa for consumption off the premises of the dealer be subject to a deposit of 5 cents or more. Such container must have indicated on it that the container is subject to a minimum refund of 5 cents or must be exempt from the requirement of having the refund value indicated on it. An empty container on which a an Iowa deposit was made may be returned to any dealer in the state who sells the kind, brand and size of container or may be returned to a redemption center. The dealer or redemption center must accept the empty container and refund the deposit.

The Act also prohibits the sale at retail of any metal beverage container so designed and constructed that a part of the container is detachable in opening, the so–called “pop–top can.”

This chapter contains rules specifying the minimum size of type to be used for indicating the minimum refund value on beverage containers, rules relating to approval of redemption centers for beverage containers and rules relating to exemptions from labeling the refund value on beverage containers. This chapter also contains interpretive rules that clarify or interpret the statute, or apply the statute to specific factual situations.

ITEM 2. Amend rule 567—107.2(455C) by adopting the following new definitions in alphabetical order:

“Dealer agent” means a person who solicits or picks up empty beverage containers from a dealer for the purpose of returning the empty beverage containers to a distributor or manufacturer.

“Emboss” means to raise the surface in relief.

“Exempt dealer” means a dealer that has an approved agreement with a redemption center.

“High–contrasting color” in reference to labeling requirements means a clear differentiation in hue, value, and intensity with the background on which the redemption message appears, surrounding artwork, and other nearby printed information.

“Incise” means to scratch the surface to produce legible letters or characters at a precise width and depth.

“Indelibly” means that the refund value is permanently affixed on the beverage container and cannot be smeared or removed during regular use from the point of being offered for sale until the point of redemption.

ITEM 3. Amend rule 567—107.3(455C) as follows:

107.3(1) All beer, wine, alcoholic liquor, mineral water, soda water and similar carbonated soft drink containers (other than exempt containers) sold or offered for sale in Iowa by a dealer shall have the words “Iowa Refund 5¢” clearly or “IA 5¢” clearly, indelibly and legibly indicated on the container. If the refund value is more than 5 cents, the greater value may be indicated, e.g., “Iowa Refund 10¢. The words may be abbreviated if a request to use a specific abbreviation is 10¢” or “IA 10¢.” Any abbreviation of the words “Iowa Refund” other than as provided in this subrule shall be submitted to and approved by the director department.

107.3(2) The minimum size of the words “Iowa Refund 5¢” shall be 9 point type or “IA 5¢” and all approved abbreviations shall be a minimum of 9–point type (approximately .125 inch or 3 millimeters) if the words are embossed or incised and 18–point type (approximately .25 inch or 6 millimeters) if the words are otherwise affixed to the container. A stamp or label may have the words “Iowa Refund 5¢” or “IA 5¢” in less than 18–point type if the label is submitted to the director and the director department and the department determines that the high–contrasting color, or the characteristics of the stamp or label, make the stamp or label as easy to discern as a stamp or label with 18–point type.

107.3(3) The words “Iowa Refund 5¢” or “IA 5¢” shall be indicated by embossing (raised letters) or by a stamp, label, by incising, by printing in high–contrasting color, by a stamp or label of high–contrasting color, or other method approved by the department securely and permanently affixed to the container.

107.3(4) The print on a stamp, label or other method used to indicate the words “Iowa Refund 5¢” should be in a high contrast color. Reserved.

107.3(5) The words “Iowa Refund 5¢” or “IA 5¢” should shall be on the end top of a metal beverage container. The words “Iowa Refund 5¢” or “IA 5¢” should shall be on the conical portion of a glass or plastic beverage container so that the words are visible from above or shall be on the product label if on the side of the beverage container. Stamps shall be placed on the front of the beverage container so that the stamp is visible to the consumer as the bottle sits on the shelf. Refund information printed on the labels of beverage containers received by the alcoholic beverages division warehouse shall be printed on the front, primary label of the beverage container. The placement of refund information solely on the bottom of the beverage container is prohibited.

107.3(6) An exemplar example of the label or labeled container may, but need not, be submitted to the director department for informal approval.

107.3(7) An application for exemption from the requirement of having the words “Iowa Refund 5¢” or “IA 5¢” indicated on the container shall be on Form LQ 37 or on 8½– ? 11–inch paper and shall contain:

a. The name, address and phone telephone number of the applicant;

c b. The refund value of the container; and

d c. A statement of why the container can be readily and permanently identified by consumers as subject to a deposit.

107.3(8) An example of the container for which the exemption is being requested shall be sent to the department along with the application required in 107.3(7).

107.3(9) The director The department may exempt the container if the director department determines that the container is subject to a deposit of 5 or more cents and that consumers can readily and permanently identify the container as one subject to a deposit.

ITEM 4. Amend rule 567—107.4(455C) as follows:

107.4(1) Approved and unapproved redemption centers explained. The Act provides for both approved and unapproved redemption centers. Both approved and unapproved redemption centers perform the same activity, that is, redemption of redeem empty beverage containers;, and both are lawful. However, an approved redemption center relieves any dealer covered in the order approving the redemption center from the obligation of redeeming those empty beverage containers covered in the order under 107.4(4). Thus the difference between an Both approved and unapproved redemption center, is in the effect on the obligation of dealers to redeem certain empty beverage containers rather than in the activity performed by the redemption center centers shall return the full amount of the refund value to the consumer returning the empty beverage container.

107.4(2) Nothing in the Act or this chapter prevents a person from establishing a redemption center that has not been approved by the director. However, an unapproved redemption center does not relieve any dealer of the responsibility to refund the deposit to the consumer upon presentation of any empty beverage container department. Unapproved redemption centers shall provide the following to the department:

107.4(3) Contents of application for approval. An application for approval of a redemption center shall be on Form LQ 38 or on 8½– ? 11–inch paper that contains and shall contain the following information:

a. Name, address and phone telephone number of the person or persons responsible for the establishment and operation of the redemption center;

b. The address and phone telephone number, if in service, of the redemption center;

c. The kinds, sizes, and brand names of the beverage containers which that will be accepted at the redemption center;

d. The names and addresses of the dealers, if any, to be served by the redemption center and written consent of those dealers to be served by the redemption center;

f e. The names and addresses of the distributors whose beverage containers will be redeemed;

g f. The hours the redemption center is to be open;

h g. Whether metal, or glass or plastic beverage containers will be crushed or broken and, if so, the written consent of the distributor or manufacturer to the crushing or breaking;

i h. Reasons why the dealer and redemption center believe that the center will provide a convenient service to consumers.

107.4(5) A dealer served by an approved redemption center must An exempted dealer must prominently post on the premises of the dealer a sign provided at no cost by the department. The sign will include the location and hours of the redemption center.

ITEM 5. Amend rule 567—107.5(455C) as follows:

567—107.5(455C) Redeemed containers—use. Distributors are requested to inform the director department of the intended ultimate use or disposal of redeemed beverage containers. The commission encourages requires the reuse or recycling of empty beverage containers, and the department will assist distributors in finding and examining alternatives to burial of empty containers in sanitary landfills.

ITEM 6. Amend rule 567—107.6(455C) as follows:

ITEM 7. Amend rule 567—107.7(455C) as follows:

567—107.7(455C) Redeemed containers must be reasonably clean. Consumers should shall take care to return containers in a reasonably clean and intact condition. In order to be redeemed, an empty beverage container shall be free of materials, such as paper, sticks and cigarette butts, other dry and free of foreign materials other than the residue of the beverage.

ITEM 8. Amend rule 567—107.8(455C) as follows:

107.8(1) No change.

107.8(2) Beverage containers must be reasonably intact. In order to be redeemed, an empty beverage container must be returned reasonably intact. For a refillable beverage container, the container must hold liquid, be able to be resealed and be in its original shape. A nonrefillable glass container may be chipped, but it may not have the bottom broken out or the neck broken off. A nonrefillable metal container may be dented or partially crushed, but may not be crushed flat. A returned metal beverage container should be able to stand on its own base. (Reason: Section 2.2 of the Act provides in part: “A dealer or person operating a redemption center may compact empty metal beverage containers with the approval of the distributor required to accept such containers.” So far as metal beverage containers are concerned, such right of approval in the distributor would be meaningless if the dealer were required to accept and redeem crushed metal beverage containers from consumers. Since there appears to be no reason to treat distributors of nonrefillable glass beverage containers differently than distributors of metal beverage containers, there is presumably a corresponding right in the distributors of nonrefillable glass beverage containers to approve the destruction of the containers.) A nonrefillable plastic container may be dented or partially crushed. A returned nonrefillable plastic beverage container is not required to be able to stand on its own base. The intentional crushing of any beverage container to be redeemed by a consumer is prohibited unless approved by the dealer, redemption center and distributor required to accept the container. A dealer or person operating a redemption center may compact empty metal beverage containers with the approval of the distributor required to accept such containers.

107.8(3) Vending machines.

a. When a beverage container is dispensed from a vending machine in exchange for money, there is presumed to be a “sale of a beverage in a beverage container to a consumer” within the meaning of 107.2(13). Therefore some person must be the “dealer” who is responsible for collecting the deposit at the time of sale and for refunding the deposit upon return of when the empty beverage container is returned. Because of the variety of contractual relationships surrounding operation of a vending machine, the person who is the “dealer” might be the owner of the vending machine, the lessee of the vending machine, the owner of the premises on which the vending machine is located, or the person who stocks the vending machine. It is incumbent upon the parties involved in the operation of a vending machine to determine the person who is the “dealer” and to indicate prominently on the vending machine the name, location and normal operating hours of the dealer (or an approved redemption center) if the dealer does not have personnel on its premises.

b. No change.

107.8(4) No change.

ITEM 9. Amend 567—Chapter 107 by adopting the following new rules:

107.9(1) A distributor shall accept and pick up all containers from a dealer served by the distributor at least weekly, or when the distributor delivers the beverage product if deliveries are less frequent than weekly.

107.9(2) A distributor shall accept and pick up all containers from a dealer agent located in the distributor’s service area at least as often as the distributor delivers to the largest dealer served by the dealer agent, but may not be required to pick up the containers more than once per week.

107.9(3) A distributor shall accept and pick up all containers from a redemption center located in the distributor’s service area at least as often as the distributor delivers to the largest dealer within five miles of the redemption center, but may not be required to pick up the containers more than once per week.

107.9(4) A distributor shall notify each dealer, redemption center, or dealer agent serviced by that distributor of the intended frequency of pickup. This interval between minimum pickups shall be referred to as the “pickup period.”

107.9(5) A distributor who chooses to pick up containers more often than the minimum frequency required by law shall not be required to pick up all containers each time the distributor picks up containers, so long as additional times to pick up the remaining containers are scheduled within the required period.

567—107.10(455C) Dealer agent lists. A dealer agent shall provide to a distributor upon request a list of the dealers that the dealer agent is serving.

567—107.11(455C) Distributor registration. Each distributor shall provide the following information to the department:

1. Name, address and telephone number of the distributor;

2. Name and telephone number of a contact person;

3. Territory the distributor serves; and

4. The size, type and brand of each beverage container sold.

A distributor shall notify the department and redemption centers and dealer agents within the distributor’s geographic territory within one week of selling a new product.

567—107.12(455C) Refund value stated on containers—exceptions. Exceptions in Iowa Code section 455C.5(2) are limited to once in a 24–hour period.

567—107.13(455C) Record keeping. The distributor shall maintain a record of all deposits initiated and all deposits redeemed by material type (i.e., aluminum, PET (#1) plastic, HDPE (#2) plastic, glass) and by beverage type (i.e., beer, wine, alcoholic liquor, nonalcoholic beverage). Each distributor shall maintain and report annually this information on a department–provided form along with a description of the distributor’s service territory. Each approved and unapproved redemption center shall report annually to the department on a department–provided form the number of beverage containers redeemed by the redemption center excluding those containers collected by the redemption center while acting as a dealer agent. The following reporting deadline shall be met:

Reporting Period Report Due

January 1 – December 31 February 15

107.13(1) All information reported in accordance with this rule shall be considered confidential in accordance with Iowa Code section 22.6(7). Information received by the department in accordance with this rule shall be released in aggregate.

107.13(2) The department shall issue a report annually to the general assembly by April 1 providing a summary of the overall redemption rate including total deposits initiated and redeemed and the total amount of beverage containers redeemed.

567—107.14(455C) Education. Dealers who are not exempt dealers pursuant to 107.4(4) and redemption centers shall maintain and prominently display at the point of redemption easily readable signage using language developed by the department in cooperation with dealers and redemption centers. The signage shall provide information regarding prohibited practices, consumers’ responsibilities when returning containers, and the ability of dealers to limit the number of containers returned in accordance with 107.8(5). The department shall provide language for the signs on the department’s Web site.

567—107.15(455C) Refusing payment when a distributor discontinues a specific beverage product. A distributor, dealer or redemption center may refuse to pay the refund value and the handling fee in the following situations:

107.15(1) A distributor may refuse to pay the refund value if the distributor has given notice, in writing, to dealers to whom the distributor sold similar beverage containers and to the redemption centers served by the distributor and if at least four months have elapsed since the mailing of such notice. The notice shall state that the particular kind, size and brand of container offered for refund has been discontinued. This notice will be mailed not more than 30 days before the final delivery of the product.

107.15(2) A dealer or redemption center may refuse to pay the refund value of beverages discontinued by the distributor in accordance with subrule 107.15(1) no sooner than three months after the distributor has mailed the notice required by subrule 107.15(1). In no event shall a dealer or redemption center refuse to pay the refund value of discontinued beverages unless such dealer or redemption center shall have posted for at least 30 days a conspicuous notice advising consumers of the final date of acceptance.

567—107.16(455C) Payment of refund value. A distributor shall issue to a dealer payment of the refund value and handling fee within one week following pickup or when the dealer pays the distributor for the beverages, if less frequently than weekly.

A distributor shall issue to a redemption center or dealer agent payment of the refund value and handling fee within one week of pickup.

567—107.17(455C) Sales tax on deposit. The department of revenue and finance has determined that the payment of the deposit by a consumer is not a sale subject to the payment of additional sales tax.

Pursuant to the authority of Iowa Code section 455B.304(8), the Environmental Protection Commission hereby gives Notice of Intended Action to amend Chapter 111, “Financial Assurance Requirements for Municipal Solid Waste Landfills,” Iowa Administrative Code.

The proposed amendments establish specifications for the closure and postclosure accounts required for municipal solid waste landfills by Iowa Code section 455B.306(8)“b.” The amendments also correct some inconsistencies found in the new Chapter 111 that became effective August 15, 2001.

Any interested person may make written suggestions or comments on the proposed amendments on or before February 12, 2002. Written comments should be directed to Jon Tack, Department of Natural Resources, Wallace State Office Building, 900 East Grand Avenue, Des Moines, Iowa 50319–0034; fax (515)281–8895; E–mail Jon.Tack@dnr. state.ia.us.

A public hearing will be held on February 12, 2002, at 1:30 p.m. in the Fifth Floor Conference Room of the Wallace State Office Building at which time persons may present their views on the proposed amendments either orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of the amendments.

These amendments are intended to implement Iowa Code section 455B.304(8).

The following amendments are proposed.

ITEM 1. Amend subrule 111.3(1), paragraph “a,” as follows:

a. The cost estimate must equal the cost of closing the MSWLF at any time during the active permitted life of the facility when the extent and manner of its operation would make closure the most expensive.

ITEM 2. Amend subrule 111.3(2) as follows:

111.3(2) The owner or operator of an MSWLF must establish financial assurance for closure in accordance with the criteria in this chapter. The owner or operator must provide continuous coverage for closure until released from this requirement by demonstrating compliance with 567—subrules 103.2(13) and 102.12(10). A certification Proof of compliance pursuant to 111.3(3)“f” must be submitted by the owner or operator each year by April 1 and approved by the department.

ITEM 3. Amend subrule 111.3(3), paragraph “a,” as follows:

a. The owner or operator shall submit a complete copy of the financial assurance instrument or the documents that establish the financial assurance instrument each year by April 1. The documents submitted shall contain, but are not limited to, the amount of the financial assurance, the annual financial statement and financial plan required by Iowa Code sections 455B.306(8)“e” and 455B.306(6)“c,” and the current balances of the closure and postclosure accounts required by Iowa Code section 455B.306(8)“b.” Nothing in this requirement shall require the duplicative submission of information otherwise submitted in order to comply with the requirements of this chapter.

ITEM 4. Amend subrule 111.3(3), paragraph “c,” as follows:

c. The owner or operator shall submit a copy of the documents establishing a financial assurance instrument in an amount equal to or greater than the third–party estimate amount specified in 567—111.9(455B).

ITEM 5. Amend subrule 111.4(2) as follows:

111.4(2) The owner or operator of an MSWLF must establish financial assurance for the costs of postclosure care required by 567—subrules 103.2(14) and 102.12(10). The owner or operator must provide continuous coverage for postclosure care until released from this requirement by demonstrating compliance with the postclosure plan and the closure permit. A certification Proof of compliance pursuant to 111.4(3)“f” must be submitted by the owner or operator annually by April 1 and approved by the department.

ITEM 6. Amend subrule 111.4(3), paragraph “a,” as follows:

a. The documents submitted shall contain, but are not limited to, the amount of the financial assurance, the annual financial statement and financial plan required by Iowa Code sections 455B.306(8)“e” and 455B.306(6)“c,” and the current balances of the closure and postclosure accounts required by Iowa Code section 455B.306(8)“b.” Nothing in this requirement shall require the duplicative submission of information otherwise submitted in order to comply with the requirements of this chapter.

ITEM 7. Amend subrule 111.4(3), paragraph “c,” as follows:

c. The owner or operator shall submit a copy of the documents establishing a financial assurance instrument in an amount equal to or greater than the third–party cost estimate amount specified in 567—111.9(455B).

ITEM 8. Amend subrule 111.6(1), paragraph “c,” as follows:

c. For a trust fund used to demonstrate financial assurance for closure and postclosure care, the first payment into the fund must be at least equal to the current cost estimate amount specified in 567—111.9(455B) for closure or postclosure care divided by the number of years in the pay–in period as defined in 111.6(1)“b.” The amount of subsequent payments must be determined by the following formula:

where CE is the current cost estimate amount specified in 567—111.9(455B) for closure or postclosure date (updated for inflation or other changes), CV CB is the current value balance of the trust fund, and Y is the number of years remaining in the pay–in period.

ITEM 9. Amend subrule 111.6(2), paragraph “b,” as follows:

b. The penal sum of the bond must be in an amount at least equal to the current the amount specified in 567— 111.9(455B) for closure and postclosure or corrective action cost estimate, whichever is applicable.

ITEM 10. Amend 111.6(3), paragraph “c,” as follows:

c. The letter of credit must be irrevocable and issued for a period of at least one year in an amount at least equal to the current cost estimate amount specified in 567—111.9(455B) for closure, postclosure care or corrective action, whichever is applicable. The letter of credit must provide that the expiration date will be automatically extended for a period of at least one year unless the issuing institution has canceled the letter of credit by sending notice of cancellation by certified mail to the owner and operator and to the department 120 days in advance of cancellation. When such notice is provided, the owner or operator shall, within 60 days, provide to the department adequate proof of alternate financial assurance, notice of withdrawal of cancellation, or proof of a deposit of a sum equal to the amount of the letter of credit into the closure and postclosure account established pursuant to Iowa Code section 455B.306(8)“b.” If the owner or operator has not complied with this subrule within the 60–day time period, the issuer of the letter of credit shall deposit a sum equal to the amount of the letter of credit into the closure and postclosure accounts established by the owner or operator pursuant to Iowa Code section 455B.306(8)“b.” The provision of funds by the issuer of the letter of credit shall be considered an issuance of a loan to the owner and operator, and the terms of that loan shall be governed by the letter of credit or subsequent agreement between those parties. The state shall not be considered a party to this credit transaction.

ITEM 11. Amend subrule 111.6(4), paragraph “c,” as follows:

c. The insurance policy must be issued for a face amount at least equal to the current cost estimate amount specified in 567—111.9(455B) for closure, or postclosure care, or corrective action, whichever is applicable. The term “face amount” means the total amount the insurer is obligated to pay under the policy. Actual payments by the insurer will not change the face amount, although the insurer’s future liability will be lowered by the amount of the payments.

ITEM 12. Amend subrule 111.6(9), paragraph “c,” as follows:

c. Payments into the dedicated fund must be made annually by the owner or operator for ten years or over the remaining permitted life of the MSWLF, whichever is shorter, in the case of a dedicated fund for closure or postclosure care, or over one–half of the estimated length of an approved corrective action program in the case of a response to a known release. This is referred to as the “pay–in period.” The initial payment into the dedicated fund must be made before the initial receipt of waste in the case of closure and postclosure care or no later than 120 days after the corrective action plan has been approved by the department.

ITEM 13. Amend subrule 111.6(9), paragraph “d,” as follows:

d. For a dedicated fund used to demonstrate financial assurance for closure and postclosure care, the first payment into the fund must be at least equal to the current cost estimate amount specified in 567—111.9(455B), divided by the number of years in the pay–in period as defined in this sub–rule. The amount of subsequent payments must be determined by the following formula:

where TF CE is the total required financial assurance for the owner or operator, CF CB is the current amount in balance of the fund, and Y is the number of years remaining in the pay–in period.

ITEM 14. Amend 567—Chapter 111 by adopting the following new rules:

567—111.8(455B) Closure and postclosure accounts. The holder of a permit for a municipal solid waste landfill shall maintain a separate closure account and postclosure account as required by Iowa Code section 455B.306(8)“b.” The accounts shall be specific to a particular facility.

111.8(1) Definitions. For the purpose of this rule, the following definitions shall apply:

“Account” means a formal separate set of records.

“Current balance” means cash in an account established pursuant to this rule plus the current value of investments of money collected pursuant to 567—111.8(455B) and used to purchase one or more of the investments listed at Iowa Code section 12B.10(5).

“Current cost estimate” means the closure cost estimate prepared and submitted to the department pursuant to 567— 111.3(455B) and the postclosure cost estimate prepared and submitted pursuant to 567—111.4(455B).

111.8(2) Money in the accounts shall not be assigned for the benefit of creditors except the state of Iowa.

111.8(3) Money in an account shall not be used to pay any final judgment against a permit holder arising out of the ownership or operation of the site during its active life or after closure.

111.8(4) Withdrawal of funds. Except as provided in 111.8(5), money in the accounts may be withdrawn without departmental approval only for the purpose of funding closure, including partial closure, or postclosure activities that are in conformance with a closure/postclosure plan which has been submitted pursuant to 567— subrule 102.12(10). Withdrawals for activities not in conformance with aclosure/postclosure plan must receive prior written approval from the department. Permit holders using a trust fund established pursuant to 111.6(1) to satisfy the requirements of this rule must comply with the requirements of 111.6(1)“f” prior to withdrawal.

111.8(5) Excess funds. If the balance of a closure or postclosure account exceeds the current cost estimate for closure or postclosure at any time, the permit holder may withdraw the excess funds so long as the withdrawal does not cause the balance to be reduced below the amount of the current cost estimate.

111.8(6) Initial proof of establishment of account. A permit holder shall submit a statement of account, signed by the permit holder, to the department by July 1, 2002, that indicates that accounts have been established pursuant to this rule. Permit holders for new municipal solid waste landfills permitted after July 1, 2002, shall submit a statement of account, signed by the permit holder, to the department prior to the landfill’s initial receipt of waste.

111.8(7) An account established pursuant to 111.6(1) for trust funds or 111.6(9) for local government dedicated funds also satisfies the requirements of this rule, and the permit holder shall not be required to establish closure and postclosure accounts in addition to said financial assurance accounts. Accounts established pursuant to 111.6(1) or 111.6(9), which are intended to satisfy the requirements of this subrule, must comply with Iowa Code section 455B.306(8)“b.”

111.8(8) Yearly deposits. Deposits into the closure and postclosure accounts shall be made at least yearly in the amounts specified in this subrule beginning with the close of the first fiscal year that starts following the effective date of this rule. The deposits shall be made within 30 days of the close of the fiscal year. The minimum yearly deposit to the closure and postclosure accounts shall be determined using the following formula:

“CE” means the current cost estimate of closure and postclosure costs.

“CB” means the current balance of the closure or postclosure accounts.

“RPC” means the remaining permitted capacity, in tons, of the landfill as of the start of the permit holder’s fiscal year.

“TR” is the number of tons of solid waste disposed at the facility in the prior year.

111.8(9) Closure and postclosure accounts may be commingled with other accounts so long as the amounts credited to each account balance are reported separately pursuant to 111.3(3)“a” and 111.4(3)“a.”

111.8(10) The department shall have full rights of access to all funds existing in a facility’s closure or postclosure account, at the sole discretion of the department, if the permit holder fails to undertake closure or postclosure activities after being directed to do so by a final agency action of the department. These funds shall be used only for the purposes of funding closure and postclosure activities at the site.

567—111.9(455B) Amount of required financial assurance. A financial assurance mechanism established pursuant to 567—111.6(455B) shall be in the amount of the third–party cost estimates required by rules 567—111.3(455B), 111.4(455B), and 111.5(455B) except as follows:

The amount of the financial assurance instrument may be reduced by the sum of the cash balance in an account established pursuant to rule 111.8 if the account is established as a trust fund or dedicated fund plus the current value of investments held by such a trust fund or dedicated fund if invested in one or more of the investments listed at Iowa Code section 12B.10(5).

Pursuant to the authority of Iowa Code section 455B.474, the Environmental Protection Commission hereby proposes to amend Chapter 136, “Financial Responsibility for Underground Storage Tanks,” Iowa Administrative Code.

These amendments rescind rule 136.2(455B) and subrule 136.23(6) and amend subrule 136.18(1). Rule 136.2(455B) provides the compliance dates owners and operators had to meet for providing financial responsibility for their underground storage tanks. These dates have passed and the provision is no longer necessary. Subrule 136.23(6) refers to state assurance funds which do not apply in Iowa because Iowa’s insurance fund has been privatized.

The amendment to subrule 136.18(1) adds a requirement for providers of financial responsibility to copy the Department when notice of termination of coverage is sent to tank owners or operators. Currently, there is no requirement for financial responsibility providers to give notice to the Department when a notice of termination of coverage is sent to owners and operators. The existing rules do require that any Department–approved mechanism provide a grace period prior to termination of coverage: 60 days for insurance mechanisms and 120 days for other mechanisms such as surety bonds, guarantees, and letters of credit. These grace periods are only effective beginning on the date of receipt by the owner or operator of a cancellation notice, and termination is not effective without receipt. Currently, the owner or operator is required to notify the Department within 60 days after receiving notice of termination if alternative coverage is not obtained. Reliance on the owner or operator to give the Department notice of termination of coverage has not proven to be sufficiently effective to monitor and enforce the requirement to maintain financial responsibility coverage while a tank system is in operation and until a tank system is permanently closed. Requiring the provider of financial responsibility to give notice to the Department will allow the Department the opportunity to notify and encourage these owners to keep financial responsibility coverage in order to stay in operation and avoid administrative penalties for operating without coverage. For those sites ceasing operation, the notice will help the Department ensure that owners and operators maintain coverage until the tank system is permanently closed and checked for contamination. Under this amendment, the failure of a provider to notify or provide timely notice to the Department is not made a condition of termination and will not be interpreted to affect the substantive terms of the termination of coverage by the provider.

Iowa Code section 455B.474(7) states that rules adopted by the Commission shall be consistent with and shall not exceed the requirements of federal regulations. The Department has reviewed the history of federal regulations dealing with financial responsibility in 40 CFR 280. Although the amendment to subrule 136.18(1) modifies the cancellation procedure established in 40 CFR 280.105 by adding a requirement regarding notice to the Department, the Department believes this amendment is consistent with the purposes of the federal regulations and does not substantially exceed the federal requirements. The Department does not believe this amendment creates any substantial burden on financial responsibility providers and may very well be in their business interest.

Any interested person may submit written comments on the proposed amendments on or before February 1, 2002. Written comments should be sent to the Department of Natural Resources, Attn: Paul Nelson, Wallace State Office Building, Des Moines, Iowa 50319; fax (515)281–8895; E–mail paul.nelson@dnr.state.ia.us.

Also, a public hearing will be held January 29, 2002, at1 p.m. in the Fifth Floor West Conference Room of the Wallace State Office Building, at which time persons may pre–sent their views on the proposed amendments either orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of the amendments.

These amendments are intended to implement Iowa Code section 455B.474.

The following amendments are proposed.

ITEM 1. Rescind and reserve rule 567—136.2(455B).

ITEM 2. Amend subrule 136.18(1), introductory paragraph, as follows:

136.18(1) Except as otherwise provided, a provider of financial assurance may cancel or fail to renew an assurance mechanism by sending a notice of termination by certified mail to the owner or operator. The provider of the financial assurance must also provide a copy of the notice of termination to the underground storage tank section of the department of natural resources. Failure to notify or timely provide a copy to the department will not invalidate a provider’s action to terminate coverage or deny renewal of coverage.

ITEM 3. Amend rule 567—136.23(455B) by rescinding subrule 136.23(6).

Pursuant to the authority of Iowa Code section 68B.32A, the Iowa Ethics and Campaign Disclosure Board proposes to amend Chapter 7, “Contested Case Procedures,” Iowa Administrative Code.

The proposed amendment shortens the amount of time that a notice of hearing in a contested case must be served prior to the hearing date. The current rule requires notice to be served 45 days prior to the hearing; this amendment would require notice to be served 30 days prior to the hearing. The amendment is not a discretionary rule and the Board’s counsel would not be permitted to request a waiver or variance to serve the notice of hearing less than 30 days prior to the hearing date. If the party being served needs additional time to prepare, the rules permit the filing of a motion for continuance.

Any person may submit written comments concerning this amendment on or before January 29, 2002. Written comments should be directed to Charlie Smithson, Iowa Ethics and Campaign Disclosure Board, 514 E. Locust, Suite 104, Des Moines, Iowa 50309; fax (515)281–3701. Persons who wish to comment orally should contact Charlie Smithson at (515)281–3489.

This amendment is intended to implement Iowa Code chapters 17A and 68B.

The following amendment is proposed.

Amend subrule 7.5(3) as follows:

7.5(3) Time. The notice of hearing shall be served upon all parties at least 45 30 days before the scheduled hearing date.

Pursuant to the authority of Iowa Code sections 7A.30 and 18.4, the Department of General Services hereby gives Notice of Intended Action to amend Chapter 10, “Inventory Guidelines for State of Iowa Personal and Real Property,” Iowa Administrative Code.

These amendments incorporate standards set by the federal Office of Management and Budget (OMB) Circular A87, Attachment B, 19a(2). Agencies will be required to report fewer fixed assets for the statewide Comprehensive Annual Financial Report (CAFR). Fixed assets valued at less than $5000 will not have to be reported. The former limit was $2000. Agreement on this change was reached by the Governmental Accounting Standards Board Statement 34 (GASB34) implementation committee, which includes other agencies and the State Auditor. GASB34 requires that capitalized assets be depreciated. When the OMB Circular changes in the future, the Department will work with the Department of Revenue and Finance to initiate a review of this policy. Agencies may choose to report fixed assets at a more restrictive level. The rule change also requires that the straight–line depreciation method be used.

Public comments concerning the proposed amendments will be accepted until 4:30 p.m. on January 31, 2002. Interested persons may submit written, oral or electronic comments by contacting Carol Stratemeyer, Department of General Services, Hoover State Office Building, Level A, Des Moines, Iowa 50319–0104; telephone (515)281–6134; fax (515)242–5974; E–mail Carol.Stratemeyer@dgs.state.ia.us.

Also, there will be a public hearing on January 31, 2002, from 1 to 2 p.m. in the Design and Construction Conference Room, Department of General Services, Hoover State Office Building, Level A, at which time persons may present their views either orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record and confine their remarks to the subject of the amendments. Persons with special needs may contact the Department of General Services prior to the hearing if accommodations need to be made.

These amendments are intended to implement Iowa Code section 7A.30.

The following amendments are proposed.

ITEM 1. Amend subrules 10.2(1) and 10.2(2) as follows:

10.2(1) Personal property. For purposes of this chapter, personal property is any item or equipment that has an acquisition value of $2000 $5000 or more and has an anticipated useful life of one year or more. Computer software is to be excluded from this definition. If the minimum level for capitalization set by the federal Office of Management and Budget Circular A87 is changed, there will be a coordinated effort between the department of general services and the department of revenue and finance to determine if the amount should be adjusted for the state of Iowa.

10.2(2) Accounting in aggregate. Accounting in aggregate is the process of accounting for certain types of items in a lump sum rather than individually. Items accounted for in aggregate are added for the combined value with one entry to the fixed asset listing. Items that may be accounted for in aggregate are defined below as:

a. One item that is made up of two or more component parts, or and the

b. Two or more like items whose individual values are less than $2000 $5000, but the combined value is can be $2000 $5000 or more,.

ITEM 2. Amend rule 401—10.3(7A) as follows:

401—10.3(7A) Accounting for items in aggregate. Personal property may be accounted for in aggregate. Items accounted for in aggregate shall be tagged as follows:

1. If accounting in aggregate as defined in 10.2(2)“a” or 10.2(2)“c,” 10.2(2)“a,” one item or component of the item shall be tagged with a prenumbered tag and all other items or components marked with an unnumbered tag or other identifiable markings.

To ensure proper accountability for these items, each department will prepare written policies and procedures for tracking and recording items accounted for in aggregate.

ITEM 3. Amend rule 401—10.6(7A) as follows:

401—10.6(7A) Inventory listing. Personal property should be accounted for on an inventory listing. As applicable, the following minimum information must be presented on the inventory listing for each record of personal property:

1. Department.

2. Tag number.

3. Description.

4. Acquisition value.

5. Location(s).

6. Acquisition date.

7. Disposition date (not applicable until disposal of property).

8. The only depreciation method allowed shall be the straight–line method.

8 9. If the department depreciates personal property, the information will must also include the depreciation method used, life expectancy and net book value useful life of the asset.

Departments shall develop adequate internal control procedures that (1) identify individual(s) authorized to update and change the inventory records and (2) provide for an adequate segregation of duties between the recording and custody of property.

Pursuant to the authority of Iowa Code section 17A.3(1)“b,” the Department of Human Services proposes to amend Chapter 3, “Department Procedure for Rule Making,” Chapter 4, “Petitions for Rule Making,” and Chapter 5, “Declaratory Orders,” appearing in the Iowa Administrative Code.

These amendments revise the Department’s rules governing procedures for rule making, petitions for rule making, and declaratory orders as follows. The amendments:

• Remove the provision for receiving notices electronically. Prior to developing its Web site, the Department would send electronic copies of its notices to persons who wrote the Department requesting the same. With the advent of the Department’s Web site with its subscription feature, and the subsequent availability of all of the Department’s noticed and adopted rules to anyone with Internet access, this provision was no longer necessary.

Persons subscribing to the Department’s Web site receive a weekly memo via E–mail listing new rules under Notice by the Department. To subscribe, persons can go to the Department’s Web site at http://www.dhs.state.ia.us/policyanalysis/ or E–mail the Department’s rules administrator atpolicyanalysis@dhs.state.ia.us indicating the E–mail address to which the memo shall be sent. This service is available without charge. Persons without Internet access can still request that copies of individual rules be sent to them.

• Update organizational references and addresses.

• Update Iowa Code references.

These needed corrections were identified by the Department while completing the rule assessment mandated by Executive Order Number 8.

These amendments do not provide for waivers in specified situations because these amendments are merely technical in nature.

Consideration will be given to all written data, views, and arguments thereto received by the Office of Policy Analysis, Department of Human Services, Hoover State Office Building, 1305 East Walnut, Des Moines, Iowa 50319–0114, on or before January 30, 2002.

These amendments are intended to implement Iowa Code chapter 17A.

The following amendments are proposed.

ITEM 1. Amend subrule 3.3(2) as follows:

3.3(2) Anticipated rule making. The rule–making docket shall list each anticipated rule–making proceeding. A rule–making proceeding is deemed “anticipated” from the time a draft of proposed rules is distributed by the department’s bureau office of policy analysis for internal discussion within the department. For each anticipated rule–making proceeding the docket shall contain a listing of the precise subject matter which may be submitted for consideration by the council on human services, mental health and developmental disabilities commission, or the HAWK–I board for subsequent proposal under the provisions of Iowa Code section 17A.4(1)“a,” the name and address of department personnel with whom persons may communicate with respect to the matter, and an indication of the present status within the department of that possible rule. The department may also include in the docket other subjects upon which public comment is desired.

ITEM 2. Amend rule 441—3.4(17A) as follows:

Amend subrule 3.4(2) as follows:

3.4(2) Copies of notices by mail. Persons desiring to receive copies of future Notices of Intended Action by subscription shall complete Form 470–2250, Notice Subscription, which is available from the Bureau Office of Policy Analysis, Department of Human Services, 1305 East Walnut, Hoover State Office Building, Des Moines, Iowa 50319– 0114, indicating the name and address to which the notices shall be sent. Persons may subscribe to all notices of the department, or only to notices pertaining to the service, income maintenance, or medical programs. Within seven days after submission of a Notice of Intended Action to the administrative rules coordinator for publication in the Iowa Administrative Bulletin, the department shall mail a copy of the notice to subscribers who have completed Form 470–2250 and paid the subscription price. The subscription price includes the cost of labor and supplies for copying and mailing of the notices. At the end of each calendar year, subscribers will be sent Form 470–2250 to complete if they wish to continue on the mailing list.

Rescind subrule 3.4(3) and adopt the following new subrule in lieu thereof:

3.4(3) Subscription to Web site. Persons desiring toreceive a weekly memo via E–mail listing new rules under proposal by the department shall go to the department’sWeb site at http://www.dhs.state.ia.us/policyanalysis/ to subscribe or E–mail the department’s rules administrator at policyanalysis@dhs.state.ia.us indicating the E–mail address to which the memo shall be sent. This service shall be available without charge.

ITEM 3. Amend rule 441—3.5(17A) as follows:

Amend subrule 3.5(1) as follows:

3.5(1) Written comments. For at least 20 days after publication of the Notice of Intended Action, persons may submit argument, data, and views, in writing or via electronic transmission, on the proposed rule. These submissions should identify the proposed rule to which they relate and should be submitted to the Bureau Office of Policy Analysis, Department of Human Services, 1305 East Walnut, Hoover State Office Building, Des Moines, Iowa 50319–0114, or to the department’s rules coordinator administrator at dhsrules @dhs.state.ia.us policyanalysis@dhs.state.ia.us.

Amend subrule 3.5(3), paragraph “a,” as follows:

a. Applicability. This subrule applies only to those oral rule–making proceedings in which an opportunity to make oral presentations is authorized or required by Iowa Code section 17A.4(1)“b” as amended by 1998 Iowa Acts, chapter 1202, section 8, or subrule 3.5(2).

Amend subrule 3.5(5) as follows:

3.5(5) Accessibility. The department shall schedule oral proceedings in rooms accessible to and functional for persons with physical disabilities. Persons who have special requirements should contact the bureau office of policy analysis at (515)281–8440 in advance to arrange access or other needed services.

ITEM 4. Amend rule 441—3.6(17A) as follows:

3.6(1) Definition of small business. A “small business” is defined in 1998 Iowa Acts, chapter 1202, section 10, subsection 7 Iowa Code section 17A.4A(7).

3.6(2) Distribution list. Small businesses or organizations of small businesses may be registered on the department’s small business impact list by making a written application addressed to the Bureau Office of Policy Analysis, Department of Human Services, 1305 East Walnut, Hoover State Office Building, Des Moines, Iowa 50319–0114. The application for registration shall state:

a. to d. No change.

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

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

3.6(3) Time of distribution. Within seven days after submission of a Notice of Intended Action to the administrative rules coordinator for publication in the Iowa Administrative Bulletin, the department shall mail or electronically transmit to all registered small businesses or organizations of small businesses, in accordance with their request, either a copy of the Notice of Intended Action or notice of the subject of that proposed rule making. In the case of a rule that may have an impact on small business adopted in reliance upon Iowa Code section 17A.4(2), the department shall mail notice of the adopted rule to registered businesses or organizations prior to the time the adopted rule is published in the Iowa Administrative Bulletin.

3.6(4) Qualified requestors for regulatory analysis—economic impact. The department shall issue a regulatory analysis of a proposed rule that conforms to the requirements of 1998 Iowa Acts, chapter 1202, section 10, subsection 2, paragraph “a,” Iowa Code section 17A.4A(2)“a” after a proper request from:

a. and b. No change.

3.6(5) Qualified requestors for regulatory analysis—business impact. The department shall issue a regulatory analysis of a proposed rule that conforms to the requirements of 1998 Iowa Acts, chapter 1202, section 10, subsection 2, paragraph “b,” Iowa Code section 17A.4A(2)“b” after a proper request from:

a. to d. No change.

3.6(6) Time period for analysis. Upon receipt of a timely request for a regulatory analysis, the agency shall adhere to the time lines described in 1998 Iowa Acts, chapter 1202, section 10, subsection 4 Iowa Code section 17A.4A(4).

3.6(7) Contents of request. A request for a regulatory analysis is made when it is mailed or delivered to the department. The request shall be in writing and satisfy the requirements of 1998 Iowa Acts, chapter 1202, section 10, subsection 1 Iowa Code section 17A.4A(1).

3.6(8) Contents of concise summary. The contents of the concise summary shall conform to the requirements of 1998 Iowa Acts, chapter 1202, section 10, subsections 4 and 5 Iowa Code sections 17A.4A(4) and (5).

3.6(9) Publication of a concise summary. The department shall make available to the maximum extent feasible, copies of the published summary in conformance with 1998 Iowa Acts, chapter 1202, section 10, subsection 5 Iowa Code section 17A.4A(5).

3.6(10) Regulatory analysis contents—rules review committee or rules coordinator. When a regulatory analysis is issued in response to a written request from the administrative rules review committee or the administrative rules coordinator, the regulatory analysis shall conform to the requirements of 1998 Iowa Acts, chapter 1202, section 10, subsection 2, paragraph “a,” Iowa Code section 17A.4A(2)“a,” unless a written request expressly waives one or more of the items listed therein.

3.6(11) Regulatory analysis contents—substantial impact on small business. When a regulatory analysis is issued in response to a written request from the administrative rules review committee, the administrative rules coordinator, at least 25 persons signing that request who each qualify as a small business or by an organization representing at least 25 small businesses, the regulatory analysis shall conform to the requirements of 1998 Iowa Acts, chapter 1202, section 10, subsection 2, paragraph “b.” Iowa Code section 17A.4A(2)“b.”

ITEM 5. Amend subrule 3.11(1) as follows:

3.11(1) General. When requested by a person, either prior to the adoption of a rule or within 30 days after its publication in the Iowa Administrative Bulletin as an adopted rule, the department shall issue a concise statement of reasons for the rule. Requests for such a statement must be in writing and be delivered to the Bureau Office of Policy Analysis, Department of Human Services, 1305 East Walnut, Hoover State Office Building, Des Moines, Iowa 50319–0114. The request should indicate whether the statement is sought for all or only a specified part of the rule. Requests shall be considered made on the date received.

ITEM 6. Amend subrule 3.12(1), paragraphs “b” and “f,” as follows:

b. A brief explanation of the principal reasons for the rule–making action if the reasons are required by 1998Iowa Acts, chapter 1202, section 8, Iowa Code section 17A.4(1)“b,” or the department in its discretion decides to include the reasons;

f. A brief explanation of the principal reasons for the failure to provide for waivers to the rule if no waiver provision is included and a brief explanation of any waiver or special exceptions provided in the rule if the reasons are required by 1998 Iowa Acts, chapter 1202, section 8, Iowa Code section 17A.4(1)“b,” or the department in its discretion decides to include the reasons; and

ITEM 7. Amend the implementation clause following 441—Chapter 3 as follows:

These rules are intended to implement Iowa Code chapter 17A as amended by 1998 Iowa Acts, chapter 1202, and Iowa Code section 25B.6.

ITEM 8. Amend rule 441—4.1(17A), introductory paragraph, as follows:

441—4.1(17A) Petition for rule making. Any person or state agency may file a petition for rule making with the department at the Bureau Office of Policy Analysis, Department of Human Services, 1305 East Walnut, Hoover State Office Building, Des Moines, Iowa 50319–0114. A petition is deemed filed when it is received by that office. The department must provide the petitioner with a file–stamped copy of the petition if the petitioner provides the department an extra copy for this purpose. The petition must be typewritten or legibly handwritten in ink and must substantially conform to the following form:

ITEM 9. Amend rule 441—4.3(17A) as follows:

441—4.3(17A) Inquiries. Inquiries concerning the status of a petition for rule making may be made to Rules Coordinator Administrator, Bureau Office of Policy Analysis, Department of Human Services, 1305 East Walnut, Hoover State Office Building, Des Moines, Iowa 50319–0114.

ITEM 10. Amend the implementation clause following 441—Chapter 4 as follows:

These rules are intended to implement Iowa Code section 17A.7 as amended by 1998 Iowa Acts, chapter 1202, section 11.

ITEM 11. Amend rule 441—5.1(17A), introductory paragraph, as follows:

441—5.1(17A) Petition for declaratory order. Any person may file a petition with the department for a declaratory order as to the applicability to specified circumstances of a statute, rule, or order within the primary jurisdiction of the department at the Bureau Office of Policy Analysis, Department of Human Services, 1305 East Walnut, Hoover State Office Building, Des Moines, Iowa 50319–0114. A petition is deemed filed when it is received by that office. The department shall provide the petitioner with a file–stamped copy of the petition if the petitioner provides the department an extra copy for this purpose. The petition must be typewritten or legibly handwritten in ink and should substantially conform to the following form:

ITEM 12. Amend subrule 5.3(3), introductory paragraph, as follows:

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

ITEM 13. Amend rule 441—5.5(17A) as follows:

441—5.5(17A) Inquiries. Inquiries concerning the status of a declaratory order proceeding may be made to the Rules Coordinator Administrator, Bureau Office of Policy Analysis, Department of Human Services, 1305 East Walnut, Hoover State Office Building, Des Moines, Iowa 50319–0114.

ITEM 14. Amend subrule 5.6(2) as follows:

5.6(2) Filing. All petitions for declaratory orders, petitions for intervention, briefs, or other papers in a proceeding for a declaratory order shall be filed with the Bureau Office of Policy Analysis, Department of Human Services, 1305 East Walnut, Hoover State Office Building, Des Moines, Iowa 50319–0114. All documents are considered filed upon receipt.

ITEM 15. Amend subrule 5.8(1) as follows:

5.8(1) Time frames for action. Within 30 days after receipt of a petition for a declaratory order, the director or the director’s designee shall take action on the petition as required by 1998 Iowa Acts, chapter 1202, section 13, subsection 5 Iowa Code section 17A.9(5).

ITEM 16. Amend subrule 5.9(1), introductory paragraph, as follows:

5.9(1) Reasons for refusal to issue order. The department shall not issue a declaratory order where prohibited by 1998 Iowa Acts, chapter 1202, section 13, subsection 1, Iowa Code section 17A.9(1) and may refuse to issue a declaratory order on some or all questions raised for the following reasons:

ITEM 17. Amend the implementation clause following 441—Chapter 5 as follows:

These rules are intended to implement 1998 Iowa Acts, chapter 1202, section 13 Iowa Code section 17A.9.

Pursuant to the authority of Iowa Code section 217.6, the Department of Human Services proposes to amend Chapter 11, “Overpayments,” appearing in the Iowa Administrative Code.

These amendments add a preamble explaining the purpose of 441—Chapter 11 regarding the collection of overpayments. The Department is adopting this preamble in response to comments received from Legal Services Corporation of Iowa during the rules review process mandated by Executive Order Number 8. In addition, a reference to the Transitional Child Care program is removed, as the program no longer exists.

These amendments do not provide for waivers because the amendments are merely technical in nature.

Consideration will be given to all written data, views, and arguments thereto received by the Office of Policy Analysis, Department of Human Services, Hoover State Office Building, 1305 East Walnut, Des Moines, Iowa 50319–0114, on or before January 30, 2002.

These amendments are intended to implement Iowa Code sections 217.34 and 421.17(21).

The following amendments are proposed.

ITEM 1. Amend 441—Chapter 11 by adopting the following new Preamble:

PREAMBLE

These rules define the department’s policies regarding the collection of overpayments. These rules outline what information must be maintained for each claim for an overpayment and how the payments are to be applied. These rules also outline the criteria for withholding part or all of federal or state refunds or other state payments owed to the debtor and how they are applied to the debtor’s claim for the overpayment.

ITEM 2. Amend rule 441—11.1(217,421), definition of “public assistance,” as follows:

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

Pursuant to the authority of Iowa Code sections 217.6 and 249A.4 and 2001 Iowa Acts, House File 732, section 11, subsection 1, and section 49, the Department of Human Services proposes to amend Chapter 51, “Eligibility,” Chapter 52, “Payment,” and Chapter 75, “Conditions of Eligibility,” appearing in the Iowa Administrative Code.

These amendments make adjustments to the State Supplementary Assistance and Medicaid programs based on annual cost–of–living adjustments. Specifically, these amendments make the following changes:

• The limit on the income of a dependent relative for purposes of a dependent relative allowance under the State Supplementary Assistance program is increased by 2.6 percent from $266 per month to $273 per month. This increase is based on the January 1, 2002, Supplemental Security Income (SSI) program cost–of–living adjustment. The Department of Human Services has received confirmation from the U.S. Department of Health and Human Services that the SSI cost–of–living adjustment effective January 1, 2002, will be 2.6 percent.

• The amount deducted to cover costs in determining earned income from furnishing room and board or providing family life home care for State Supplementary Assistance purposes is also increased by 2.6 percent, from $266 per month to $273 per month, based on the January 1, 2002, SSI cost–of–living adjustment.

• The assistance standards for State Supplementary Assistance for persons living in a protective living arrangement are increased from a total of $613.20 per month ($538.20 care allowance and $75 personal allowance) to $627.20 per month ($550.20 care allowance and $77 personal allowance). The total assistance standard is equal to the SSI maximum benefit rate plus a maximum state payment of $82.20. The maximum SSI benefit rate will be increased by 2.6 percent from $531 to $545, and the maximum state payment is not changed, resulting in the new total of $627.20. The personal assistance portion of this total is based on an allowance for personal expenses and average Medicaid copayment expenses. The allowance for personal expenses is increased by 2.6 percent from $69 to $70, based on the SSI cost–of–living adjustment, and the average Medicaid copayment is increased from $6 to $7, based on average Medicaid copayment expenditures in state fiscal year 2001, resulting in a total increase in the personal allowance from $75 to $77. The new care allowance of $550.20 is the difference between the new total ($627.20) and the new personal allowance ($77).

• The assistance standards for State Supplementary Assistance for dependent relative allowances are increased as follows:

These amounts are based on the SSI benefit rate for an individual or couple, plus an allowance for the needs for the dependent, plus a blind allowance for a blind client and a blind spouse. The SSI benefit rates are being increased by 2.6 percent, from $531 for an individual and $796 for a couple to $545 for an individual and $817 for a couple. The allowance for a dependent is also being increased by 2.6 percent from $266 to $273. However, the blind allowance remains unchanged at $22.

• The deduction from income for personal expenses and Medicaid copayments for purposes of determining the amount of payments for residential care under the State Supplementary Assistance program is increased from $75 to $77. The current amount is based on $69 for personal expenses and $6 for Medicaid copayments. The Seventy-ninth General Assembly in 2001 Iowa Acts, House File 732, section 11, subsection 1, directed the department to increase the personal expense portion of this deduction by the same percentage and at the same time as federal SSI and social security benefits are increased due to cost–of–living adjustments. Thus, the $69 for personal expenses is increased by 2.6 percent, from $69 to $70. The $6 for Medicaid copayments is increased to $7, based on average Medicaid copayment expenses in state fiscal year 2001.

• For purposes of determining the Medicaid eligibility of an institutionalized spouse, the maximum amount of resources to be attributed to the community spouse is increased from $87,000 to $89,280, and the maintenance needs allowance for the community spouse is increased from $2175 per month to $2232 per month. These amounts are indexed annually by the consumer price index, and the department has received notice of these increases from the U.S. Department of Health and Human Services.

The substance of these amendments is also Adopted and Filed Emergency and is published herein as ARC 1234B. The purpose of this Notice is to solicit comment on that submission, the subject matter of which is incorporated by reference.

Consideration will be given to all written data, views, and arguments thereto received by the Office of Policy Analysis, Department of Human Services, Hoover State Office Building, 1305 East Walnut, Des Moines, Iowa 50319-0114, on or before January 30, 2002.

These amendments are intended to implement Iowa Code sections 249.3, 249.4, and 249A.4 and 2001 Iowa Acts, House File 732, section 11, subsection 1.

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,” and Chapter 79, “Other Policies Relating to Providers of Medical and Remedial Care,” appearing in the Iowa Administrative Code.

These amendments make the following changes to Medicaid policy governing dental services. The changes:

• Remove the requirement to submit with a claim documentation supporting the need for oral prophylaxis performed more than once in a six–month period. The dentist must maintain the documentation. It is more cost–effective to review documentation of necessity through the utilization review process than through review of every claim.

• Allow an exception to the six–month limit for topical application of fluoride and for coverage for sealants for persons with a physical or mental disability. Exceptions to policy for persons with a physical or mental disability are routinely approved.

• Increase coverage for sealants for children from 15 years of age to 18 years of age. The clinical consensus is that there are frequently situations where first and second permanent molars do not develop until after age 15.

• Remove the restriction on coverage for sealants to one application per tooth in a child’s lifetime. Exceptions to policy for children are routinely approved.

• Allow a comprehensive oral evaluation once per patient per dentist every three years instead of once in a lifetime. The Dental Advisory Group and the dental consultant advised that a more extensive evaluation is medically necessary and cost–effective after an extended absence from seeing the same dentist.

• Remove and revise outdated terminology and misspelled words identified during the rules review process.

• Allow for the payment of more than two laboratory–fabricated crowns using nonprecious materials other than stainless steel per 12–month period with prior authorization. Exceptions to policy have routinely been approved. The prior authorization process is a more efficient method of review for additional porcelain crowns.

• Allow payment for noble metals such as gold when recipients are allergic to all other restorative materials.

• Remove coverage for Class III restorations as they are no longer performed.

• Clarify billing for periodontal procedures in response to an appeal hearing.

• Remove the 24–month limit on payment for periodontal scaling and root planing. It is cost–effective to approve this more frequently.

• Remove the requirement to submit a treatment plan, periodontal probe chart, and radiographs for prior approval for pedicle soft tissue grafts and free soft tissue grafts. The Department’s dental consultant has advised that written narrative is sufficient to determine medical necessity for these procedures.

• Clarify that resorption is not a criteria for replacement of dentures in less than five years. The Department of Inspections and Appeals requested this clarification.

• Identify the definitions in the most recent edition of the Dentist’s Current Dental Terminology as the basis for the fee schedule for dentists.

These amendments do not provide for waivers in specified situations because they either confer benefits or merely clarify and update the rules. Individuals may request a waiver of requirements for payment for dental services 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, 1305 East Walnut, Des Moines, Iowa 50319–0114, on or before January 30, 2002.

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

The following amendments are proposed.

ITEM 1. Amend rule 441—78.4(249A) as follows:

Amend subrule 78.4(1), paragraphs “a,” “b,” and “c,” as follows:

a. Oral prophylaxis, including necessary scaling and polishing, is payable only once in a six–month period except for persons who, because of physical or mental disability, need more frequent care. Documentation supporting the need for oral prophylaxis performed more than once in a six–month period must accompany the claim be maintained.

b. Topical application of fluoride is payable once in a six–month period except for persons who, because of physical or mental disability, need more frequent applications, and only when preceded by an oral prophylaxis. (This does not include the use of fluoride prophylaxis paste as fluoride treatment.)

c. Pit and fissure sealants are payable for placement on first and second permanent molars only. Reimbursement for sealants is restricted to work performed on children through 15 18 years of age for first and second permanent molars and on persons who have a physical or mental disability that impairs their ability to maintain adequate oral hygiene. Payment will be approved for only one application per tooth in a child’s lifetime.

Amend subrule 78.4(2), paragraphs “a” and “h,” as follows:

a. An initial oral examination A comprehensive oral evaluation is payable once per patient per dentist in a three–year period.

h. Posteroanterior Posterior–anterior and lateral skull and facial bone radiograph, survey film.

Amend subrule 78.4(3) as follows:

Amend paragraphs “b,” “c,” and “d” as follows:

b. Amalgam alloy, silicate, acrylic or and compositeresin–type filling materials are payable benefits of the program.

c. Composite resin– or plastic–type fillings on posterior teeth are payable benefits only as Class V restorations, i.e., facial (buccal) surfaces and, as Class I restorations, i.e., occlusal surfaces. Class I restorations are reimbursable only once for the same caries in a two–year period.

d. Two laboratory–fabricated crowns utilizing using nonprecious materials, other than stainless steel, are payable per patient in a 12–month period. Additional laboratory–fabricated crowns using nonprecious materials, other than stainless steel, are payable when prior authorization has been obtained. Two gold crowns are payable in a 12–month period when patients are allergic to all other restoration material. Noble metals are payable for crowns when recipients are allergic to all other restorative materials. Stainless steel crowns may be are payable when a more conservative pro–cedure would not be serviceable. (Cross–reference 78.28(2)“e”)

Amend paragraph “f” by rescinding and reserving subparagraph (4).

Amend subrule 78.4(4) as follows:

Amend paragraphs “a,” “b,” and “c” as follows:

a. Periodontal scaling performed in the presence of gingival inflammation (gross debridement) Full mouth debridement to enable comprehensive periodontal evaluation and diagnosis is payable once every 24 months. This procedure is not payable on the same date of service when other prophylaxis or periodontal services are performed.

b. Periodontal scaling and root planing is payable once in a 24–month period and when prior approval has been received. A request for approval must be accompanied by a plan for treatment, a completed copy of a periodontic probe chart which that exhibits pocket depths, history and radiograph(s). Payment for periodontal scaling and root planing will be approved when interproximal and subgingival calculus is evident in X–rays or when justified and documented that curettage, scaling or root planing is required in addition to routine prophylaxis. (Cross–reference 78.28(2)“c a”(1))

c. Periodontal surgical procedures which include gingivoplasty, osseous surgery, and osseous allograft, pedicle soft tissue graft, and free soft tissue graft are payable services when prior approval has been received. A request for approval must be accompanied by a plan for treatment, a completed copy of a periodontal probe chart which that exhibits pocket depths, history and radiograph(s). Payment for these surgical procedures will be approved after periodontal scaling and root planing have been provided, a reevaluation examination has been completed, and the patient has demonstrated reasonable oral hygiene, unless the patient is unable to demonstrate reasonable oral hygiene because of physical or mental disability or in cases which demonstrate gingival hyperplasia resulting from drug therapy. (Cross–reference 78.28(2)“c a”(2))

Reletter paragraphs “d” and “e” as “e” and “f,” respectively, and adopt the following new paragraph “d”:

d. Pedicle soft tissue graft and free soft tissue graftare payable services with prior approval based on a written narrative describing medical necessity. (Cross–reference 78.28(2)“c”(3))

Amend relettered paragraph “e,” parenthetical cross–reference, as follows:

(Cross–reference 78.28(2)“a”(3 4))

Amend subrule 78.4(7), paragraphs “a,” “b,” and “c,” as follows:

a. An immediate denture and a first–time complete denture including six months’ postdelivery care. An immediate denture and a first–time complete denture are payable when the denture is provided to establish masticatory function. An immediate denture or a first–time complete denture is payable only once following the removal of teeth it replaces. A complete denture is payable only once in a five–year period except when the denture is broken beyond repair, lost or stolen, or no longer fits due to growth or changes in jaw structure and is required to prevent significant dental problems. Replacement of complete dentures due to resorption in less than a five–year period is not payable.

b. A removable partial denture replacing anterior teeth, including six months’ postdelivery care. A removable partial denture replacing anterior teeth is only payable only once in a five–year period unless the removable partial denture is broken beyond repair, lost or stolen, or no longer fits due to growth or changes in jaw structure and is required to prevent significant dental problems. Replacement of a removable partial denture replacing anterior teeth due to resorption in less than a five–year period is not payable.

c. A removable partial denture replacing posterior teeth including six months’ postdelivery care when prior approval has been received. A removable partial denture replacing posterior teeth shall be approved when the recipient has fewer than eight posterior teeth in occlusion or the recipient has a full denture in one arch, and a partial denture replacing posterior teeth is required in the opposing arch to balance occlusion. When one removable partial denture brings eight posterior teeth in occlusion, no additional removable partial denture will be approved. A removable partial denture replacing posterior teeth is payable only once in a five–year period unless the removable partial denture is broken beyond repair, lost or stolen, or no longer fits due to growth or changes in jaw structure and is required to prevent significant dental problems. Replacement of a removable partial denture replacing posterior teeth due to resorption in less than a five–year period is not payable. (Cross–reference 78.28(2)“c”(1))

ITEM 2. Amend subrule 78.28(2) as follows:

Amend paragraph “a” as follows:

Amend subparagraph (2) as follows:

(2) Payment for pedicle soft tissue graft and free soft tissue graft will be approved when the written narrative describes medical necessity. Payment for other periodontal surgical procedures will be approved after periodontal scaling and root planing has have been provided, a reevaluation examination has been completed, and the patient has demonstrated reasonable oral hygiene, unless the patient is unable to demonstrate reasonable oral hygiene because of physical or mental disability or in cases which demonstrate gingival hyperplasia resulting from drug therapy. (Cross–reference 78.4(4)“c”)

Renumber subparagraph (3) as subparagraph (4) and adopt the following new subparagraph (3):

(3) Payment for pedicle soft tissue graft and free soft tissue graft will be approved when the written narrative describes medical necessity. (Cross–reference 78.4(4)“d”)

Amend renumbered subparagraph (4), parenthetical cross–reference, as follows:

(Cross–reference 78.4(4)“d e”)

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

(1) A removable partial denture replacing posterior teeth will be approved when the recipient has fewer than eight posterior teeth in occlusion or the recipient has a full denture in one arch, and a partial denture replacing posterior teeth is required in the opposing arch to balance occlusion. When one removable partial denture brings eight posterior teeth in occlusion, no additional removable partial denture will be approved. A removable partial denture replacing posterior teeth is payable only once in a five–year period unless the removable partial denture is broken beyond repair, lost or stolen, or no longer fits due to growth or changes in jaw structure, and is required to prevent significant dental problems. Replacement of a removable partial denture replacing posterior teeth due to resorption in less than a five–year period is not payable. (Cross–reference 78.4(7)“c”)

Adopt the following new paragraph “e”:

e. More than two laboratory–fabricated crowns will be approved in a 12–month period for anterior teeth that cannot be restored with a composite or amalgam restoration and for posterior teeth that cannot be restored with a composite or amalgam restoration or stainless steel crown. (Cross–reference 78.4(3)“d”)

ITEM 3. Amend rule 441—79.1(249A) by adopting the following new subrule:

79.1(20) Dentists. The dental fee schedule is based on the definitions of dental and surgical procedures given in the Current Dental Terminology Third Edition (CDT–3).

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.

These amendments make the following changes to Medicaid policy governing optometric and optical services. The changes:

• Delete an unnecessary reference to billing codes in the provider manual.

• Combine single lens and multifocal lens services under one paragraph.

• Establish limits for lenses and frames.

• New lenses are subject to the following limitations:

1. Up to three times for children up to one year of age.

2. Up to four times per year for children one through three years of age.

3. Once every 12 months for children four through seven years of age.

4. Once every 24 months after eight years of age when there is a change in the prescription.

• New frames are subject to the following limitations:

1. One frame every six months is allowed for children through three years of age.

2. One frame every 12 months is allowed for children four through six years of age.

3. When there is a prescribed lens change and the new lenses cannot be accommodated by the current frame.

Exceptions to policy are routinely approved for new frames for children who more quickly outgrow frames. It is cost–effective to provide new frames when the current frame cannot accommodate the new lenses.

• Clarify and expand coverage for protective lenses and allow safety frames for some recipients.

• Protective lenses are allowed for:

1. Children through seven years of age.

2. Recipients with vision in only one eye.

3. Recipients with a diagnosis–related illness or disability where regular lenses would pose a safety risk.

Exceptions to policy are routinely approved for protective lenses for small children and recipients with a diagnosis–related illness or disability where regular lenses would pose a safety risk. Protective lenses were previously allowed for recipients with vision in only one eye.

• Safety frames are allowed for:

1. Children through seven years of age.

2. Recipients with a diagnosis–related disability or illness where regular frames would pose a safety risk.

Exceptions to policy are routinely approved for safety frames for small children and persons with a diagnosis–related disability or illness where regular frames would pose a safety risk.

• Provide that payment shall be made for replacement of glasses when the original glasses have been lost or damaged beyond repair. Replacement of lost or damaged glasses for adults aged 21 and over is limited to once every 12 months. The service utilization review process revealed abuse of replacement glasses. It is cost–effective to establish limits.

• Clarify that contact lenses are allowed for recipients with aphakia. Up to eight pairs of contact lenses are allowed for children up to one year of age with aphakia. Up to four pairs of contact lenses per year are allowed for children one to three years of age with aphakia. Small children with aphakia require more frequent lens correction.

• Require prior approval for a second lens correction within a 24–month period only for recipients eight years of age and older. Exceptions to policy are routinely approved for additional lens corrections for children. Accurate vision is critical during early childhood development through age seven.

• Clarify that safety frames are reimbursed by invoice. No fee schedule amount has been established for safety frames.

• Clarify that visual therapy is not covered when provided by opticians.

• Provide a cross–reference to the optometrist rules regarding payment and procedure for obtaining services and supplies in the optician rules rather than repeating the rules. The optician rules were outdated and inconsistent with covered optometric services. Opticians provide the same lens and frames services as optometrists. It is redundant to restate the coverage in a separate rule section.

• Correct cross–references to the prior authorization rule.

These amendments do not provide for waivers in specified situations because individuals may request a waiver of requirements for payment for optometric and optical services 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, 1305 East Walnut, Des Moines, Iowa 50319–0114, on or before January 30, 2002.

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

The following amendments are proposed.

ITEM 1. Amend rule 441—78.6(249A) as follows:

Amend the introductory paragraph as follows:

441—78.6(249A) Optometrists. Payment will be approved for medically necessary services and supplies provided by the optometrist within the scope of practice of optometry and the limitations of state law, subject to the following limitations and exclusions. Covered optometric services include a professional component and materials. The specific codes to be used in billing for covered services are described in the Optometric Services Manual.

Amend subrule 78.6(1) as follows:

Amend paragraph “d” as follows:

d. Single vision and multifocal lens service, verification and subsequent service.

(1) When lenses are necessary, the following enumerated professional and technical optometric services are to be provided:

(1) 1. Ordering of corrective lenses.

(2) 2. Verification of lenses after fabrication.

(3) 3. Adjustment and alignment of completed lens order.

4. Once every 24 months after eight years of age when there is a change in the prescription.

Rescind and reserve paragraph “e.”

Amend paragraph “f” as follows:

f. Frame service.

(1) When a new frame is necessary, the following enumerated professional and technical optometric services are to be provided:

(1) 1. Selection and styling.

(2) 2. Sizing and measurements.

(3) 3. Fitting and adjustment.

(4) 4. Readjustment and servicing.

Rescind and reserve paragraph “g.”

Amend paragraphs “h” and “i” as follows:

h. Repairs or replacement of frames, lenses or component parts. Payment shall be made for service in addition to materials. The service fee shall not exceed the dispensing fee for a replacement frame. Payment shall be made for replacement of glasses when the original glasses have been lost or damaged beyond repair. Replacement of lost or damaged glasses for adults aged 21 and over is limited to once every 12 months.

i. Fitting of contact lenses when required following cataract surgery, or documented keratoconus, aphakia, or for treatment of acute or chronic eye disease. Up to eight pairs of contact lenses are allowed for children up to one year of age with aphakia. Up to four pairs of contact lenses per year are allowed for children one to three years of age with aphakia.

Amend subrule 78.6(3) as follows:

Amend the introductory paragraph as follows:

78.6(3) Reimbursement. The reimbursement for allowed ophthalmic material is subject to a fee schedule established by the department or to actual laboratory cost as evidenced by an attached invoice. All fees shall be reviewed annually by the department.

Amend paragraph “b,” subparagraph (4), as follows:

(4) Protective lenses for a person with only one eye even if a corrective lens is not required and safety frames.

Amend subrule 78.6(4), paragraphs “a” and “b,” as follows:

a. A second lens correction within a 24–month period for recipients eight years of age and older. Approval shall be given when the recipient’s vision has at least a five–tenths diopter of change in sphere or cylinder or ten–degree change in axis in either eye. (Cross–reference 78.28(3))

b. Visual therapy may be authorized when warranted by case history or diagnosis for a period of time not greater than 90 days. Should continued therapy be warranted, the prior approval process shall be reaccomplished, accompanied by a report showing satisfactory progress. Approved diagnoses are convergence insufficiency and amblyopia. Visual therapy is not covered when provided by opticians.

Adopt the following new parenthetical cross–reference at the end of the subrule:

(Cross–reference 78.28(3))

Amend subrule 78.6(5), paragraph “e,” as follows:

e. Contact lenses if vision is correctable with noncontact lenses. except as found at paragraph 78.6(1)“i.”

ITEM 2. Amend rule 441—78.7(249A) as follows:

Amend the introductory paragraph as follows:

441—78.7(249A) Opticians. Payment will be approved only for certain services and supplies provided by opticians when prescribed by a physician (MD or DO) or an optometrist. Payment and procedure for obtaining services and supplies shall be the same as described in rule 441—78.6(249A). (Cross–reference 78.28(3))

Rescind and reserve subrules 78.7(1) through 78.7(3).

ITEM 3. Amend subrule 78.28(3) as follows:

Amend paragraphs “a” and “b” as follows:

a. A second lens correction within a 24–month period for recipients eight years of age and older. Payment will shall be approved made when the recipient’s vision has at leasta five–tenths diopter of change in sphere or cylinder or ten–degree change in axis in either eye.

b. Visual therapy may be authorized when warranted by case history or diagnosis for a period of time not greater than 90 days. Should continued therapy be warranted, the prior approval process should be reaccomplished, accompanied by a report showing satisfactory progress. Approved diagnoses are convergence insufficiency and amblyopia. Visual therapy is not covered when provided by opticians.

Amend the first unnumbered paragraph as follows:

For all of the above, the optometrist shall furnish sufficient information to clearly establish that these procedures are necessary in terms of the visual condition of the patient. (Cross–references 78.6(2 4), 441—78.7(249A), and 78.1(18))

Pursuant to the authority of Iowa Code section 249A.4, the Department of Human Services proposes to amend Chapter 80, “Procedure and Method of Payment,” appearing in the Iowa Administrative Code.

These amendments revise Medicaid policy governing submittal of provider claims as follows. The revisions:

• Correct form names and numbers and terminology.

• Allow ambulance services to bill electronically when the procedures performed are identified by codes that Medicare recognizes as emergency services and the codes support medical necessity without a review by the fiscal agent.

• Require pharmacies to use the format prescribed by the National Council for Prescription Drug Programs (NCPDP) when filing electronic claims.

• Require Medicare–certified hospital–based nursing facilities, nursing facilities for the mentally ill, special population nursing facilities, out–of–state nursing facilities, and skilled nursing facilities to submit claims on Form UB–92 HCFA–1450. All other nursing facilities and intermediate care facilities for the mentally retarded shall file claims on Form 470–0039.

• Clarify that only rehabilitative treatment providers serving persons under the age of 21 submit claims on Form 470–0020, Purchase of Service Provider Invoice.

• Add a provision that claims submitted electronically after implementation of the Health Insurance Portability and Accountability Act of 1996 shall be filed on the ASC X12N 837, Health Care Claim. Hospitals and nursing homes shall use the institutional version. Dentists shall use the dental version. All other providers, except pharmacists providing drugs and injections, shall use the professional version. Pharmacists when providing drugs and injections shall use the format prescribed by the National Council for Prescription Drug Programs (NCPDP). The department shall send all providers written notice when the Act is implemented.

These amendments do not provide for waivers for provider billing because the state could not meet the federal requirement for payment of 90 percent of “clean claims” within 30 days without standard formats for filing claims.

Consideration will be given to all written data, views, and arguments thereto received by the Office of Policy Analysis, Department of Human Services, Hoover State Office Building, 1305 East Walnut, Des Moines, Iowa 50319–0114, on or before January 30, 2002.

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

The following amendments are proposed.

ITEM 1. Amend subrule 80.2(2) as follows:

Amend the introductory paragraph and paragraphs “a,” “b,” “h,” “i,” “o,” “s,” “u,” “ac,” “ag,” and “an” as follows:

80.2(2) Claims for payment for services provided to recipients who are not Medicare beneficiaries shall be submitted on the following forms except for the exceptions noted below:

a. Ambulance services shall submit claims on Form XIX AMB–1 HCFA–1500, Ambulance Claim Health Insurance Claim Form, and may bill electronically when the procedures performed are identified by codes that Medicare recognizes as emergency services and the codes support medical necessity without a review by the fiscal agent.

b. Audiologists and hearing aid dealers providers shall submit claims on HCFA–1500, Health Insurance Claim Form.

h. Home health agencies shall submit claims on Form UB–82– 92 HCFA–1450.

i. Hospitals providing inpatient care or outpatient services, including inpatient psychiatric hospitals, shall submit claims on Form UB–82– 92 HCFA–1450.

o. Pharmacies shall submit claims on the Universal Pharmacy Claim Form when filing paper claims. When filing electronic claims, the pharmacy shall use the format prescribed by the National Council for Prescription Drug Programs (NCPDP).

s. Rehabilitation agencies shall submit claims on Form UB–82– 92 HCFA–1450.

u. Medicare–certified hospital–based nursing facilities, nursing facilities for the mentally ill, special population nursing facilities as defined in rule 441—81.6(249A), out–of–state nursing facilities, and skilled nursing facilities shall submit claims on Form UB–82– 92 HCFA–1450. All other nursing facilities and intermediate care facilities for the mentally retarded shall file claims on Form 470–0039.

ac. Psychiatric medical institutions for children shall submit claims on Form UB–82– 92 HCFA–1450.

ag. Hospice providers shall submit claims on Form UB–82– 92 HCFA–1450.

an. Rehabilitative treatment service providers serving persons under the age of 21 shall submit claims on Form AA–2241–0 470–0020, Purchase of Service Provider Invoice, pursuant to rule 441—185.121(234).

Rescind and reserve paragraph “am.”

Adopt the following new paragraphs at the end of subrule 80.2(2):

EXCEPTION: Providers who send an Explanation of Medicare Benefits or a crossover claim for Medicare beneficiaries to the fiscal agent are exempt from filing these forms for those beneficiaries.

EXCEPTION: Claims submitted electronically after implementation of the Health Insurance Portability and Accountability Act of 1996 shall be filed on the ASC X12N 837, Health Care Claim. Hospitals and nursing homes shall use the institutional version. Dentists shall use the dental version. All other providers, except pharmacists providing drugs and injections, shall use the professional version. Pharmacists providing drugs and injections shall use the format prescribed by the National Council for Prescription Drug Programs (NCPDP). The department shall send all providers written notice when the Act is implemented.

ITEM 2. Amend rule 441—80.4(249A) as follows:

80.4(1) Submission of claims. Payment will not be made on any claim where the amount of time that has elapsed between the date the service was rendered and the date the initial claim is received by the fiscal agent exceeds 365 days. except that payment for The department shall consider claims submitted beyond the 365–day limit shall be considered for payment only if retroactive eligibility on newly approved cases is made which that exceeds 365 days or if attempts to collect from a third–party payer delay the submission of a claim.

EXCEPTION: Rehabilitative treatment service providers serving persons under the age of 21 shall submit claims pursuant to rule 441—185.121(234).

80.4(2) Claim adjustments. A provider’s request for an adjustment to a paid claim must be received by the fiscal agent within one year from the date the claim was paid in order to have the adjustment considered.

EXCEPTION: Rehabilitative treatment service providers serving persons under the age of 21 shall have claim adjustments processed pursuant to rule 441—185.121(234).

This rule is intended to implement Iowa Code sections 249A.3, 249A.4 and 249A.12.

Pursuant to the authority of Iowa Code section 249A.4, the Department of Human Services proposes to amend Chapter 85, “Services in Psychiatric Institutions,” appearing in the Iowa Administrative Code.

These amendments revise policy governing psychiatric institutions to:

• Allow facilities to be accredited by the Joint Commission on the Accreditation of Health Care Organizations or by any other federally recognized accrediting organization that has comparable standards or surveys and is approved by the Department of Inspections and Appeals.

• Match payment policy to revised hospital payment policy.

• Update legal and organizational references and a form number.

These needed corrections were identified while the Department was completing the rule assessment mandated by Executive Order Number 8.

These amendments do not provide for waivers because the amendments are merely technical in nature.

Consideration will be given to all written data, views, and arguments thereto received by the Office of Policy Analysis, Department of Human Services, Hoover State Office Building, 1305 East Walnut, Des Moines, Iowa 50319–0114, on or before January 30, 2002.

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

The following amendments are proposed.

ITEM 1. Amend rule 441—85.1(249A) as follows:

Amend subrule 85.1(1), introductory paragraph and paragraph “a,” subparagraphs (3) and (5), as follows:

85.1(1) Psychiatric hospitals serving persons aged 65 and older. A psychiatric hospital serving persons aged 65 and older shall meet the federal criteria for an institution for mental disease and shall be licensed pursuant to department ofinspections and appeals rule 481—51.33(135B) 481— 51.36(135B). An out–of–state facility shall be licensed as a psychiatric hospital, shall meet the federal criteria for an institution for mental disease, and shall be certified to participate in the Medicare program. An institution is an institution for mental disease only if its overall character is that of a facility established and maintained primarily for the care and treatment of persons with mental diseases. The following guidelines are used by the department in evaluating the overall character of a facility. These guidelines are all useful in identifying institutions for mental disease; however, no single guideline is necessarily determinative in any given case.

(3) Is accredited as a psychiatric facility by the joint commission on the accreditation of health care organizations or by any other federally recognized accrediting organization that has comparable standards or surveys and is approved by the department of inspections and appeals.

(5) Is under the jurisdiction of the division of mental health, mental retardation, or developmental disabilities behavioral, developmental, and protective services for families, adults, and children of the department.

Amend subrule 85.1(2) as follows:

85.1(2) Psychiatric hospitals serving persons under the age of 21. A psychiatric hospital serving persons under the age of 21 shall be licensed pursuant to department of inspections and appeals rule 481—51.33(135B) 481—51.36(135B) or shall be licensed in another state as a hospital, shall be accredited by the joint commission on the accreditation of health care organizations or by any other federally recognized accrediting organization that has comparable standards or surveys and is approved by the department of inspections and appeals, and shall meet federal service requirements.

ITEM 2. Amend rule 441—85.2(249A) as follows:

441—85.2(249A) Out–of–state placement. Placement in an out–of–state psychiatric hospital for acute care requires prior approval by the division of medical services bureau of managed care and clinical services and shall be approved only if special services are not available in Iowa facilities as determined by the division of mental health, mental retardation, and developmental disabilities behavioral, developmental, and protective services for families, adults, and children.

ITEM 3. Amend subrule 85.6(2), paragraph “a,” as follows:

a. A Case Activity Report, Form AA–4166–0 470–0042, shall be submitted to the department whenever a Medicaid applicant or recipient enters the facility, changes level of care, is hospitalized in a general hospital, leaves for visitation, or is discharged from the facility.

ITEM 4. Amend subrule 85.7(1) by amending paragraphs “b,” “e,” and “f,” as follows and rescinding and reserving paragraph “g”:

b. Allowable costs are those defined as allowable in 42 CFR, Subpart A, Sections 413.5, and 413.9, and 413.30, as amended to December 2, 1996, and 42 CFR 447.250 as amended to October 1, 1991 September 23, 1992. Only those costs are considered in calculating the Medicaid inpatient reimbursement.

e. Each participating Medicaid provider shall file a HCFA 2552 Medicare Cost Report or a substitute accepted by the Health Care Financing Administration Centers for Medicare and Medicaid Services. In addition, supplemental information sheets are furnished to all Medicaid providers to be filed with the annual cost report. This report must be filed with the fiscal agent for Iowa within 90 150 days after the close of the hospital’s fiscal year.

f. Compensation for a disproportionate share of indigent patients is added to the facility’s computed per diem rate if the facility qualifies for the disproportionate payment determined as described in 441—subrule 79.1(5). A hospital qualifies for disproportionate–share payment when the hospital’s inpatient Medicaid utilization rate, defined as the number of Medicaid days plus indigent care inpatient days divided by the total number of inpatient days, exceeds one standard deviation above the Iowa average Medicaid utilization rate for psychiatric hospitals or the hospital’s low–income utilization rate as defined at 441—paragraph 79.1(5)“e” is 25 percent or greater.

Pursuant to the authority of Iowa Code section 234.6, the Department of Human Services proposes to amend Chapter 153, “Social Services Block Grant and Funding for Local Services,” appearing in the Iowa Administrative Code.

These amendments revise policy governing social services block grants to:

• Correct the allocation methodology for volunteer services. Administrative support dollars which are used for volunteer services are allocated among the five regions based on a four–part formula: 25 percent of the total volunteer budget divided equally among the five regions, 25 percent divided among regions based on their poverty population percentage, 25 percent based on the general population percentage, and 25 percent based on the historical volunteer service performance (number of volunteer hours generated in the previous two–year period).

• Remove obsolete policy regarding advisory committees and federal flood relief funds.

• Correct rule and organizational references and mailing addresses.

• Update terminology and implementation clauses.

These needed corrections were identified while the Department was completing the rule assessment mandated by Executive Order Number 8.

These amendments do not provide for waivers because the amendments are merely technical in nature.

Consideration will be given to all written data, views, and arguments thereto received by the Office of Policy Analysis, Department of Human Services, Hoover State Office Building, 1305 East Walnut, Des Moines, Iowa 50319–0114, on or before January 30, 2002.

These amendments are intended to implement Iowa Code section 234.6.

The following amendments are proposed.

ITEM 1. Amend 441—Chapter 153, Division I, Preamble, as follows:

PREAMBLE

This division sets forth the requirements for reporting required for receipt of federal social services block grant (SSBG) funds and service availability and allocation methodology related to those funds. Also specified is information on advisory committees established by the department to assist in decision making on the use of SSBG funds.

ITEM 2. Amend rule 441—153.1(234) as follows:

Amend the definition of “county administrative costs” as follows:

“County administrative costs” include the rent, utilities, and other related costs the county must pay to maintain a county social human services office. These costs are funded from state, federal and county sources.

Rescind the definition of “regional offices.”

ITEM 3. Amend rule 441—153.2(234) as follows:

153.2(1) The department of human services shall develop the social services block grant preexpenditure report on an annual basis. The report shall be developed in accordance with the Code of Federal Regulations, Title 45, Part 96, Subpart G, as amended to July 6, 1982 July 20, 2000. The report shall describe the services to be funded, in what areas services are available and the amount of funding available. The plan shall also indicate the source of funding.

153.2(2) The department shall issue a proposed preexpenditure report prior to publication of the final report. The proposed report shall be available for public review and comment in each district local office where the service area manager is based of the Iowa department of human services during regular business hours for a two–week period.

153.2(3) The time and scope of public review will be announced each year. The announcement will indicate the time the proposed report can be viewed. The department shall make this information available to the media, post signs in each district and local human services office and may publish ads in each district service area listing the time of review.

153.2(4) The department shall accept comments about the preexpenditure report during the specified public review and comment period. The advisory committees, individuals Individuals or groups may submit written comments to the region service area manager or to the Bureau of Purchased Purchase of Services, Iowa Department of Human Services, Hoover State Office Building, 1305 E. Walnut Street, Des Moines, Iowa 50319–0114. Public hearings may be arranged by the regional administrator service area manager at which time testimony will be accepted.

153.2(5) No change.

153.2(6) A copy of the final preexpenditure report will be available in each district local office where the service area manager is based.

ITEM 4. Amend subrules 153.3(2) and 153.3(3) as follows:

153.3(2) An amendment in the preexpenditure report will be posted in the district and local offices affected by the amendment at least 30 days prior to the effective date of the change. However, in the event funding for the service has been exhausted, an amendment shall be posted immediately notifying the public that the service will no longer be available. The district administrator service area manager will, whenever possible, give advance notice of a service termination made necessary because funds have been exhausted. When a service is added or extended, an amendment may be posted immediately and a 30–day posting period is not required.

153.3(3) The advisory committees, individuals Individuals or groups may submit written comments to the region service area manager or to the Bureau of Purchased Purchase of Services, Iowa Department of Human Services, Hoover State Office Building, 1305 E. Walnut Street, Des Moines, Iowa 50319–0114.

ITEM 5. Amend rule 441—153.5(234) as follows:

153.5(1) The amount of social services block grant dollars allocated to direct services shall be determined by estimating the cost of performing each direct service function. These estimates shall consider costs for direct staff salaries, administrative salaries and support costs, including data processing costs, rent, utilities, and similar items. The department will shall follow a cost allocation plan for determining the appropriate costs of the department’s central office to be funded with block grant money.

153.5(2) The amount of funding allocated to state purchase services shall be allocated to each region as follows:

a. The available family planning dollars shall be distributed among the regions eight service areas at 75 percent of the funds on the basis of poverty population and 25 percent of the funds on the basis of population of females aged 12 to 44 as reported in the 1990 census most current available census information for the state of Iowa.

b. The available foster care dollars shall be allocated among the regions eight service areas according to rules set forth in 441—Chapter 156. paragraph 156.20(1)“b.”

c. Administrative support dollars which are used for volunteer services shall be distributed allocated among the five regions eight service areas based on historical expenditures a four–part formula: 25 percent of the total volunteer budget divided equally among the eight service areas, 25 percent divided among the eight service areas based on their poverty population percentage, 25 percent based on the general population percentage, and 25 percent based on the historical volunteer service performance (number of volunteer hours generated in the previous two–year period).

This rule is intended to implement Iowa Code section 234.6 and 1992 Iowa Acts, Senate File 2355, section 7, subsection 6, and sections 24 and 25.

ITEM 6. Rescind and reserve rules 441—153.7(234) and 441—153.8(234).

Pursuant to the provisions of Iowa Code chapter 515A, the National Council on Compensation Insurance, Inc. (NCCI) submitted a rate filing on November 9, 2001. Notice of the filing was published in the Iowa Administrative Bulletin on November 28, 2001. No request for a hearing on the rate filing was received.

The rate filing proposes that sole proprietors and partners that elect workers’ compensation coverage have the availability of selecting a payroll base within the minimum and maximum payroll base that applies to executive officers. Effective January 1, 2002, the minimum payroll will be $273 per week and the maximum is $2,200 per week for executive officers. This rule change would allow a sole proprietor or partner to select a payroll amount at or in between these limits based on what the sole proprietor or partner believes is more responsive to the benefit level needs or actual wage levels. Premium would be charged based on the amount selected.

Based on an independent review of the NCCI proposal, the Commissioner finds the proposed manual rates as amended not to be excessive, inadequate, or unfairly discriminatory.

It is ordered that the November 9, 2001, rate filing is approved to be effective January 1, 2002.

Pursuant to the authority of Iowa Code sections 147.76 and 272C.3, the Board of Medical Examiners hereby amends Chapter 8, “Fees,” Chapter 9, “Permanent Physician Licensure,” and Chapter 10, “Resident, Special and Temporary Physician Licensure,” Iowa Administrative Code.

The Board approved the proposed amendments to Chapters 8 to 10 during its regularly held meeting on December 13, 2001.

The proposed amendments will raise the licensure fees for the following physician licenses: initial and renewed permanent licenses and initial and renewed resident physician licenses. The renewed permanent licensure fee will be different for those who apply on line and those who apply on a paper application.

Any interested person may present written comments on these proposed amendments not later than 4 p.m. on January 29, 2002. Such written materials should be sent to Ann E. Mowery, Executive Director, Board of Medical Examiners, 400 S.W. 8th Street, Suite C, Des Moines, Iowa 50309–4686 or E–mail ann.mowery@ibme.state.ia.us.

There will be a public hearing on January 29, 2002, at 9 a.m. in the Board office, at which time persons may present their views either orally or in writing. The Board of Medical Examiners office is located at 400 S.W. 8th Street, Suite C, Des Moines, Iowa.

These amendments are intended to implement Iowa Code sections 147.80, 147.103A, and 148.5.

The following amendments are proposed.

ITEM 1. Amend subrules 8.4(1) and 8.4(2) as follows:

8.4(1) Fees for permanent licensure. For provisions for permanent licensure, see 653—Chapter 9, “Permanent Physician Licensure.” The following fees shall apply to permanent licensure.

a. Initial licensure, $400 425.

b. Reactivation of application for licensure, $150.

c. Renewal of an active license to practice via a paper application, $325 375 per biennial period or a prorated portion thereof if the current license was issued for a period of less than 24 months.

d e. Penalty for failure to renew before expiration, $50 per calendar month after the expiration date of the license up to $100. For example, if the license expired on January 1, a penalty of $50 shall be charged for January and an additional $50, or a total of $100, shall be charged for renewal in February.

e f. There is no fee for placing a license on inactive status or allowing a license to become inactive.

f g. Reinstatement of a license to practice, $400.

8.4(2) Fees for resident physician licensure. For provisions for resident physician licensure, see 653—Chapter 10, “Resident, Special and Temporary Physician Licensure.” The following fees apply to resident physician licensure.

a. Application for a resident physician license, $75 100.

b. Renewal of a resident physician license, $25 50.

c. Late fee for a resident physician license, $25, to be paid in addition to the renewal fee.

ITEM 2. Amend subrule 9.5(1) as follows:

9.5(1) Requirements. To apply for permanent licensure an applicant shall:

a. Pay a nonrefundable initial application fee of $400 425; and

b. Complete and submit forms provided by the board, including required credentials, documents and a sworn statement by the applicant attesting to the truth of all information provided by the applicant.

ITEM 3. Amend subrule 9.11(3) as follows:

9.11(3) Renewal application requirements. A licensee seeking renewal shall submit a completed renewal application, including information on continuing education and mandatory training on identifying and reporting abuse, and the required fee, not later than the expiration date on the current license.

a. Renewal of an active license to practice via a paper application, $325 375 per biennial period or a prorated portion thereof if the current license was issued for a period of less than 24 months.

b c. The requirements for continuing education and mandatory training on identifying and reporting abuse are found in 653—Chapter 11.

c d. The first renewal fee shall be prorated on a monthly basis according to the date of issuance and the physician’s month and year of birth, if the original permanent license was issued for a period of less than 24 months.

ITEM 4. Amend subrule 10.3(3), paragraph “a,” as follows:

a. Requirements. To apply for resident physician licensure, an applicant shall:

(1) Pay a nonrefundable application fee of $75 100; and

(2) Complete and submit forms provided by the board, including required credentials, documents and a sworn statement by the applicant attesting to the truth of all information provided by the applicant.

ITEM 5. Amend subrule 10.3(6) as follows:

10.3(6) Renewal of a resident physician license.

a. No change.

b. The resident physician shall apply for renewal for one year by submitting the following:

(1) A completed renewal application that documents why the individual has not obtained a permanent license;

(2) The renewal fee of $25 50; and

(3) A statement from the director of the residency program about the individual’s progress in the program and whether any warnings have been issued, investigations conducted or disciplinary actions taken, whether by voluntary agreement or formal action.

No documentation of continuing medical education or mandatory training on identifying and reporting abuse is required since a resident is in training.

c. No change.

d. To renew an inactive resident license, an applicant shall submit the following:

(1) The renewal application that documents why the individual has not obtained a permanent license;

(2) The renewal fee of $25 50;

(3) A $25 late fee; and

(4) A statement from the director of the residency program about the individual’s progress in the program and whether any warnings have been issued, investigations conducted or disciplinary actions taken, whether by voluntary agreement or formal action.

Pursuant to the authority of Iowa Code sections 147.76, 272C.3, 272C.4, and 272C.5, the Board of Medical Examiners hereby gives Notice of Intended Action to amend Chapter 12, “Mandatory Reporting and Grounds for Discipline,” Iowa Administrative Code.

The Board approved the proposed amendments during its regularly held meeting on December 13, 2001.

In Items 1 and 2, rule 653—12.1(272C) and subrule 12.2(2) are amended by adding language stating that a failure to report within the required 30–day period shall constitute a basis for the board to take disciplinary action. This change eliminates the need for the current rule 653—12.3(272C). Thus, in Item 3, rule 653—12.3(272C) is rescinded and new rule 12.3(148,272C) is adopted to define an order for mental or physical examination.

Any interested person may present written comments on the proposed chapter not later than 4 p.m. on January 29, 2002. Such written materials should be sent to Ann E. Mowery, Executive Director, Board of Medical Examiners, 400 S.W. 8th Street, Suite C, Des Moines, Iowa 50309–4686 or ann.mowery@ibme.state.ia.us.

There will be a public hearing on January 29, 2002, at 9:30 a.m. in the Board office, at which time persons may present their views either orally or in writing. The Board of Medical Examiners office is located at 400 S.W. 8th Street, Suite C, Des Moines, Iowa.

These amendments are intended to implement Iowa Code sections 148.6 and 272C.9.

The following amendments are proposed.

ITEM 1. Amend rule 653—12.1(272C) as follows:

653—12.1(272C) Mandatory reporting—judgments or settlements. Each licensee, including licensees holding lapsed licenses, shall report to the board every adverse judgment in a malpractice action to which the licensee is a party and every settlement of claim against the licensee alleging malpractice. The report together with a copy of the judgment or settlement must be filed with the board within 30 days from the date of said judgment or settlement. Failure to report judgments or settlements in accordance with this rule within the required 30–day period shall constitute a basis for disciplinary action against the licensee who failed to report.

ITEM 2. Amend subrule 12.2(2) as follows:

12.2(2) Reporting requirement. A report shall be filed with the board when a licensee has knowledge as defined in this rule that another person licensed by the board may have engaged in reportable conduct.

a. The report shall be filed with the board no later than 30 days from the date the licensee acquires knowledge of the reportable conduct.

b. The report shall contain the name and address of the licensee who may have engaged in the reportable conduct, the date, time, place and circumstances in which the conduct occurred, and a statement explaining how knowledge of the reportable conduct was acquired.

c. The final determination of whether or not wrongful acts or omissions have occurred is the responsibility of the board.

d. No licensee is required to report information deemed to be a confidential communication as a result of a physician–patient relationship or which is prohibited by state or federal statute.

ITEM 3. Rescind rule 653—12.3(272C) and adopt the following new rule in lieu thereof:

653—12.3(148,272C) Order for mental or physical examination or alcohol or drug screening. A physician who is licensed by the board is, as a condition of licensure, under a duty to submit to a mental or physical examination, including alcohol or drug screening, within a time specified by order of the board. Such examination may be ordered upon a showing of probable cause and shall be at the physician’s expense.

12.3(1) Content of order. A board order for mental or physical examination shall include the following items:

a. A description of the type of examination to which the physician must submit.

b. The name and address of the examiner or evaluation or treatment facility that the board has identified to perform the examination on the physician.

c. The time period in which the physician must schedule the required examination.

d. The amount of time in which the physician has to complete the examination.

e. A requirement that the physician sign necessary releases for the board to communicate with the examiner or the evaluation or treatment facility.

f. A requirement that the physician cause a report of the examination results to be provided to the board within a specified period of time.

g. A requirement that the physician communicate with the board regarding the status of the examination.

12.3(2) Alternatives. Following issuance of the evaluation order, the physician may request additional time to schedule or complete the examination or to request the board to approve an alternative examiner or treatment facility. The board in its sole discretion shall determine whether to grant such a request.

12.3(3) Objection to order. A licensee who is the subject of a board order and who objects to the order may file a request for hearing. The request for hearing shall specifically identify the factual and legal issues upon which the licensee bases the objection. The hearing shall be considered a contested case proceeding and shall be governed by the provisions of rules 12.11(17A) to 12.43(272C). A contested case involving an objection to an examination order will be captioned in the name of Jane Doe or John Doe in order to maintain the licensee’s confidentiality.

12.3(4) Closed hearing. Any hearing on an objection to the board order shall be closed pursuant to Iowa Code section 272C.6(4).

12.3(5) Order and reports confidential. An examination order, and any subsequent examination reports issued in the course of a board investigation, are confidential investigative information pursuant to Iowa Code section 272C.6(4).

12.3(6) Admissibility. In the event the physician submits to evaluation and subsequent proceedings are held before the board, all objections shall be waived as to the admissibility of the evaluating physicians’ testimony or examination reports on the grounds that they constitute privileged communication. The medical testimony or examination reports shall not be used against the physician in any proceeding other than one relating to licensee discipline by the board.

12.3(7) Failure to submit. Failure of a physician to submit to a board–ordered mental or physical examination or to submit to alcohol or drug screening constitutes a violation of the rules of the board and is grounds for disciplinary action.

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

The proposed amendment was approved at the December 13, 2001, regular meeting of the Board of Medical Examiners.

The proposed amendment requires physicians who utilize an automated dispensing system to provide the procedures utilized to ensure that patients receive (appropriate) counseling regarding the prescription drugs being dispensed via the dispensing system as part of the required internal quality control assurance plan.

Any interested person may present written comments on the proposed amendment not later than January 29, 2002, at 4 p.m. Such written materials should be sent to Ann E. Mowery, Executive Director, Board of Medical Examiners, 400 S.W. 8th Street, Suite C, Des Moines, Iowa 50309–4686 or ann.mowery@ibme.state.ia.us.

There will be a public hearing on January 29, 2002, at 10 a.m. in the Board office, at which time persons may present their views either orally or in writing. The Board of Medical Examiners office is located at 400 S.W. 8th Street, Suite C, Des Moines, Iowa.

This amendment is intended to implement Iowa Code section 147.107 and 2001 Iowa Acts, House File 726, section 5, subsection 10, paragraph “i.”

The following amendment is proposed.

Amend subrule 13.6(1) as follows:

13.6(1) An internal quality control assurance plan shall include the following elements:

a. The name of the physician responsible for the internal quality assurance plan and testing;

b. Methods that the dispensing system employs, e.g., barcoding, to ensure the accuracy of the patient’s name and medication, dosage, directions and amount of medication prescribed;

c. Standards that the physician expects to be met to ensure the accuracy of the dispensing system and the training and qualifications of the staff members assigned to dispense via the dispensing system;

d e. Staff training and qualifications for dispensing via the dispensing system;

e f. A list of staff members who meet the qualifications who are assigned to dispense via the dispensing system;