ADMINISTRATIVE RULES REVIEW COMMITTEE Rules Digest -- December 1997 January 6, 1998, Room #116 For further information, please contact Joe Royce, Legal Counsel, Administrative Rules Review Committee

HIGHLIGHTS IN THIS ISSUE:

CORRECTIONS DEPARTMENT, Inmate telephone commissions, IAB Vol. XX, No 14, ARC 7737, adopted.

EDUCATIONAL BOARD OF EXAMINERS, Beginning teacher support program, IAB Vol.XX, No 14, ARC 7330, notice.

ECONOMIC DEVELOPMENT DEPARTMENT, Housing Fund, IAB Vol. XX, No 13, ARC 7704A, adopted.

ENVIRONMENTAL PROTECTION COMMISSION, Animal feeding operations, IAB Vol. XX, No13, ARC 7713, adopted.

DEPARTMENT OF HUMAN SERVICES, Diversion & self sufficiency grants program, IAB Vol. XX, No. 14, ARC 7725A, adopted.

DEPARTMENT OF HUMAN SERVICES, SSI adjustments, IAB Vol. XX, No. 14, ARC 7727A, emergency.

INSURANCE DIVISION/PUBLIC HEALTH DEPARTMENT, "Gag" rule prohibitions, IAB Vol. XX, No 14, ARC 7739 & 7740, notice.

NATURAL RESOURCES DEPARTMENT, Limitation on clamming, IAB Vol. XX, No 14, ARC 7454, notice.

DEPARTMENT OF PUBLIC SAFETY, Weapons permits, IAB Vol. XX, No 13, ARC 7454, notice.

SECRETARY OF STATE, Waste tire haulers, IAB Vol. XX, No 14, ARC 7741A, notice.

SOIL CONSERVATION DIVISION, Financial assistance for ag. drainage wells, IAB Vol. XX, No. 14, ARC 7750A, adopted.

TRANSPORTATION DEPARTMENT, Motorcycle rider education, IAB Vol. XX, No. 14, ARC 7736A, notice.

UTILITIES DIVISION, Lifeline assistance, IAB Vol. XX, No. 14, ARC 7732A, adopted.

For security reasons, all calls to corrections inmates are toll calls, and the telephone company rebates a portion of the revenue from those calls back to the department, where the money is put into a fund "for the benefit of inmates". This became an issue in July, 1997 when the committee reviewed an earlier version of this filing. During that review committee members noted that due to recent contract changes this fund was likely to increase from $1,000,000 to $3,000,000; the members questioned whether this large a sum should be left entirely to the discretion of the director and the staff. Members also questioned whether a portion of the funds could lawfully be disbursed from the central office, noting that Iowa Code section 904.508A, which establishes a telephone fund in each institution, implying the telephone money is to be kept by each institution. Lastly, committee members were particularly concerned by the emergency filing of these changes. Members felt that changes of this significance should have been preceded by a notice and a full opportunity for public comment. A procedural objection was placed on that filing, relating to its implementation without notice and terminating the filing after 180 days.

The department now adopts an alternative version. Like the previous version, the warden has almost unfettered discretion to use the money as the warden deem fits. However, the proposal adds detail to the phrase "for the benefit of inmates", by noting this means educational, vocational or recreational programs. Although not mandated, institutions are encouraged to use the funds to promote the health and welfare of inmates.

Under the rule 25% of each institutions funds would be held in "reserve". This money would be disbursed by a committee made up of the director, the deputy director and a rotating member, who is to be the warden of one of the institutions; like the earlier version, a representative of the attorney general's office is eliminated from this group. This provision is a re-working of the existing provision, but it remains controversial. The earlier provision had half of this money transferred to the central office for distribution to any institution with the need for additional funds. In this version the money remains within the institution---but this reserve is placed under the jurisdiction of the central office. The basic question remains whether inmate telephone money can properly be transferred between institutions, as need arises, or is each institution entitled to keep and use the revenue it generates.

The department adds a new endorsement procedure for mentors_experienced teachers who will provide aid and guidance to newly licensed teachers. Applicants for the mentor program must hold a teaching license and complete a 45 hour course covering nine areas. Generally these areas relate to skills needed to effectively teach. Once the initial course is completed the mentor must take 15 hours of renewal training every five years. Applicants must also have five years of practice, including at least one with the current district.

Each school district must appoint a "facilitator" and a district committee to administer the program. The committee is made up of local teachers and recommends eligible applicants for mentor positions. The facilitator generally administers the program.

A mentor is required to meet with the assigned beginning teacher at least weekly, and observe the teachers performance on at least eight occasions. The mentor is to help the teacher understand the school curriculum and to become familiar with the resources available to implement that curriculum. A mentor teaching full-time may have only one assigned teacher, while a mentor with a part-time load may have two.

Placement with a mentor is mandatory for all beginning teachers, and must occur no later than ten days after the teacher begins classroom work. When possible the mentor should work in the same building as the teacher. Mentors and teachers are to have no less than five "release" days to attend no less that ten meetings and workshops.

The department proposes to replace the old "HOME Investment Partnership Program" with a new program consolidating housing requirements, for low and moderate income housing, into a single chapter. This program funds "affordable" housing, which means for rentals, either the area fail market rent or 30% of 65% of the area median family income; and for home ownership the purchase price cannot exceed 95% of the median home price in the area. All rental units and home ownership assistance must go to households with incomes at or below 80% of the median income. Eligible activities under this program include rehabilitation of existing properties, rent assistance and new construction.

Senate File 473, relates generally to the regulation of drainage wells; it specifically prohibits the construction of an earthen animal waste storage within an agricultural drainage well area. The issue of drainage wells, manure management and storage is covered in these amendments to the commission's animal feeding regulations. Under the rules an agricultural drainage well area is that area which drains directly into a well or drains though a system into a well. Some of the more significant new provisions include:

• Groundwater table separation. There should be at least four feet separation from the top of the liner on an earthen structure and the groundwater. The top of the liner can never be below the groundwater table.
• Artificial lowering of the groundwater table. The groundwater table can be lowered only by a gravity-flow tile or some other permanent, non-mechanical system.

These rules were initially published on an emergency basis is October, no adverse comments were received. The filing implements 1997 legislation creating two pilot projects to 1) determine the effectiveness of alternatives to traditional assistance programs; 2) increase employment opportunities; and 3) avoid FIP dependence. A total of $500,000 is available, with $100,000 being earmarked for the pilot diversion program and $400,000 for the self-sufficiency grants program.

The Pilot Diversion Program provides a voluntary alternative to ongoing cash assistance to families from FIP. The purpose is to provide immediate, short-term assistance to meet a particular need or emergency as an alternative to full-blown FIP enrollment. Assistance hopefully will postpone or prevent the need to apply for FIP. The program consists of local pilot projects at county department offices; however, the county office may work in conjunction with other local entities. Initial pilot projects shall be implemented in the following counties: Cass at $20,000; Pottawattamie at $40,000 and Woodbury at $40,000.

The Pilot Family Self-Sufficiency Grants Program is statewide and provides payment to families as part of the Promise Jobs program. Grants are available for removing an identified barrier to self-sufficiency for a particular family when it can be reasonably anticipated that the assistance will enable participant families to retain employment or obtain employment in the two full calendar months following the date of authorization of payment.

Community self-sufficiency grants establish pilot projects to identify and remove systemic or community barriers to self-sufficiency, helping multiple Promise Jobs participant families to obtain or retain employment. County department offices and local Promise Jobs service delivery regions must apply jointly to receive a community self-sufficiency grant; both are encouraged to work in conjunction with other local resources. This pilot program gives local projects flexibility to better address community-wide barriers to self-sufficiency for FIP participants such as transportation needs, unusual child care needs, language barrier programs, etc.

These amendments were initially reviewed by the committee in December. The department had statutory authority for this emergency filing, but it could not go into effect until reviewed by the committee. For that reason the committee reviewed the initial, unpublished documents and now follow up with a full, public review. The amendments raise SSI payments by 2.1%, increase the personal need allowance for RCF residents and raise the amount of income and resources that may be retained by the community spouse of an institutionalized person.

Both agencies maintain a general prohibition against health care insurers limiting the flow of information from the care provider to the patient. The insurance provisions regulate HMO's and preferred provider arrangements, while the Health Department has proposed rules relating to organized delivery systems.

The two sets of rules were similar in effect but were differently worded-a discrepancy no one wished to become permanent. In August, 1997 the Committee suggested the two agencies work together to find common language. With the adoption of a federal gag provision both agencies are now moving toward this language, which provides complete protection to the care provider to fully discuss treatment options with the patient.

The proposals are not identical-the Department of Public Health offers a protection not found in the rules proposed by the Insurance Division. It prohibits the insurer from penalizing a care provider who reports an act or practice of the insurer to a government regulator, when the provider believes that practice to be threatening to the patient's health or welfare. In short, the public health proposal contains "whistleblower" protection, while the insurance proposal does not deal with this issue.

In conjunction with Minnesota, Wisconsin Illinois and Missouri, Iowa proposes to close the harvest of washboard mussels effective April, 1988. The department notes that the reported Iowa harvest has dropped dramatically in ten years, from 770,000 pounds down to a low of under 11,000 in 1997. Some six years ago the department attempted to stem the decline by raising the size, to four inches, of the mussel which could be taken. The department contends that commercial taking is one of several factors for the current decline, but that is the one factor over which there is some control.

This proposal will impact commercial clammers and shell exporters, who strongly oppose this change, contending that the department's data is incorrect.

Iowa Code section 17A.3 requires that all agencies adopt a description of all forms used by the public in dealing with the agency. In compliance with this mandate the department proposes to update the description of forms relating to applications to purchase and carry firearms. Initially these forms were controversial because a previous requirement in those applications which required the applicant to agree to:

"_a review and full disclosure of all records concerning myself to any duly authorized agent of an Iowa sheriff or the Commissioner of the Iowa Department of Public Safety, whether the said records are of a public, private or confidential nature_[A]ny person(s) who may furnish such information concerning me shall not be held accountable for giving this information, and I do hereby release said person(s) from any and all liability which may be incurred as a result of furnishing such information. I further release the Iowa sheriff and the Iowa Department of Public Safety from any and all liability which may be incurred as a result of collecting such information."

The law relating to permits to carry and permits to purchase is found in Iowa Code sections 724.10 and 724.15. It must be noted that the criteria for these two types of permits are not identical. Moreover, granting a permit to carry appears to be largely discretionary with the issuing authority, regardless of whether the criteria have been met, while the granting of a permit to purchase appears to be largely automatic (or perhaps semi-automatic) once the criteria have been met. Even though the criteria for a permit to carry and a permit to purchase are only roughly similar, broadly speaking they require that the applicant:

• has not been convicted of a felony;
• is not a drug or alcohol addict;
• has not been adjudged mentally incompetent or had a history of mental illness;
• does not have a history of violence.

Clearly law enforcement officials need a mechanism to verify those facts. Even though Iowa Code Chapter 724 does not specifically grant the issuing authority the power to demand confidential information, such authority could be implied by the legitimate need to verify that the criteria have been met. However, just as clearly the applicant should be completely protected against unauthorized access to those records or any abuse of those records. For this reason the department has now eliminated the liability waivers, ensuring that anyone receiving confidential information may be held liable for its abuse.

Iowa Code chapter 9B requires that waste tire haulers register with the Secretary of State and empowers the secretary to impose a fine up to $10,000 for violation of the Chapter. In essence the statute requires that tire haulers maintain a $10,000 surety bond and obtain a certificate of registration from the secretary before hauling waste tires in this state. include a provision that waste tire haulers shall pay all amounts due to any individual or group of individuals when due for damages caused by improper disposal of waste tires by the waste tire hauler.

The rules set out a number of simplified criteria the secretary will use in determining the size of the fine. In essence they look at mitigating factors that might justify a reduction in the fine, including:

• The degree of intent or recklessness;
• The actual or potential threat to the public;
• The cost of injury or damage;
• The cost of enforcement;
• The remedial action taken by the hauler;
• The prior record of the hauler.

Due process procedure are available to contest any proposed civil penalty. These contested care procedures are based on Iowa Code section 17A.10-.19. The decision of the secretary may be appealed into district court.

Senate File 473 requires the owner of land which is within a designated agricultural drainage well area to close each agricultural drainage well located on the land by December 31, 1999. Additionally, by December 31st, 1988 landowners in these drainage well areas must prevent surface water from draining into the agricultural drainage well. This includes:

• removing an intake if the land has a surface water intake emptying into an agricultural drainage well, including a surface water intake located in a road ditch;
• the construction of sidewalls if the land has a cistern connecting to an agricultural drainage well;
• preventing surface water from entering a drainage well;
• installing a locked cover over a agricultural drainage well or its cistern in order to prevent unauthorized access to the agricultural drainage well or its cistern.

This mandate applies to wells located in areas where there is located an anaerobic lagoon or earthen manure storage basin required to obtain a construction permit by the department of natural resources.

The owner must close the agricultural drainage well in a manner using materials and according to specifications established by the Department of Natural. To assist landowners the Act also requires the Soil Conservation Division to provide financial assistance to landowners in closing certain agricultural drainage wells and developing alternative drainage outlets.

$3,000,000 is available over the next two years; with these funds the division is to provide cost-share moneys to persons closing agricultural drainage wells located within designated agricultural drainage well areas, and alternative drainage systems which are part of a drainage district in accordance with the priority system. 75% of the cost may come from the fund, with the balance from the land owner. Eligible costs under the program include:

• Construction costs including such things as tile or channel mains, laterals and associated excavations.
• Cost of improvements including administrative, legal and publication costs, classification, engineering design, construction inspection and contract administration, financing costs and damages
• Costs of wetland mitigation required under federal law.
• Costs of connection lines from mains or laterals of the drainage district to the terminus of in-field drains at the existing wellheads of the agricultural drainage wells.
• Costs of closure and plugging of agricultural drainage wells.
• Costs for removal of agricultural drainage well cisterns in accordance with applicable requirements of the department of natural resources.

The amount of moneys allocated in cost-share payments to a person qualifying under the program cannot exceed seventy-five percent of the estimated cost of installing the alternative drainage system or seventy-five percent of the actual cost of installing the alternative drainage system, whichever is less.

The department proposes new standards for motorcycle education and the instructors for those courses. Any person seeking state funding for motorcycle education teach a course approved by the department. The course is based on a national standard requiring eight hours of on-cycle training and seven hours of classroom instruction, for a total of fifteen hours. Students must be at least 14 and hold a valid license. An instructor may have no more than 24 students in a class with only 12 on a motorcycle at any one time. A single instructor may give on-cycle instruction to only eight students at one time.

The instructor must be a high school graduate, possess a class "M" license and complete a nationally recognized instructors course. Even the physical course itself must meet specific standards. The minimum range is 60 feet by 185 feet, paved, with an additional 20 feet of runoff in all directions. This course can handle seven students at a time. A full sized range is 120 by 220 feet and can accommodate 12 students.

The rules go on to provide for the disbursement of funds from the motorcycle education fund; all funds are disbursed on a reimbursement basis. The funds may be used to purchase school equipment and supplies used exclusively for this program-including the purchase of motorcycles and the development of training sites. Funds are available to replace existing motorcycles on a 50/50 basis. Funds are additionally available to sponsor instructor education classes, along with periodic refresher courses.

The division moves the existing "link-up" program. Combining it with the new "lifeline" program. The linkup program basically provides a discount for connection charges, available to low-income Iowans. The new lifeline program is a rate reduction program designed to lower the monthly rate by providing roughly five dollars per month to offset the customer bill. Eligibility for either program is basically established by being currently enrolled in one of the current assistance programs such as Medicaid or food stamps.

In a related matter, the filing also eliminates a current provision which allows the collection of a deposit for long distance service as a condition for obtaining local service. In justifying this change the board noted that the goal of universal service was best served by not tying local service with long distance.

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