ADMINISTRATIVE RULES REVIEW COMMITTEE Rules Digest -- January 1998 Scheduled for committee review February 9th, 1998, Room #22 For further information, please contact Joe Royce, Legal Counsel, Administrative Rules Review Committee

HIGHLIGHTS IN THIS ISSUE:

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

ENVIRONMENTAL PROTECTION COMMISSION, Drinking water revolving fund, IAB Vol. XX, No 15, ARC 7759A, adopted.

ENVIRONMENTAL PROTECTION COMMISSION, Sanitary landfills, IAB Vol. XX, No 15, ARC 7761A, notice.

ENVIRONMENTAL PROTECTION COMMISSION , Agricultural drainage wells, IAB Vol. XX, No 15, ARC 7760A, adopted

GENERAL SERVICES , Capitol complex parking, IAB Vol. XX, No 15, ARC 7754, notice

HUMAN SERVICES DEPARTMENT, Home health care, 441 IAC 78.9, selective review.

DEPARTMENT OF MANAGEMENT, Adoption of forms, selective review.

DEPARTMENT OF TRANSPORTATION, Insurance coverage cards, IAB Vol. XX, No 15, ARC 7753A, adopted.

UTILITIES DIVISION, Universal services , XX IAB No. 16, ARC 7782A, adopted.

The board adds a new endorsement procedure for mentors_experienced teachers who will provide aid and guidance to newly licensed teachers. The rules go on to create a mentor program in Iowa's schools. Similar programs are now in place in 47 states. 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.

The program has raised some question because of 1) cost, and 2) the boards authority for such a program. Some cost is involved because the mentor is paid for his or her services and because mentors and beginning teachers are to have no less than five "release" days to attend no less that ten meetings and workshops. The total cost is roughly $2000 per mentor, with half the cost coming from the district and half coming from a state appropriation. This program is voluntary; new teachers are not mandated to participate.

The second question is how a licensing board can establish a program requirement for schools. There is not mentor program established in Iowa statutes. Moreover, Chapter 272 deals with licensing practitioners and professional development programs, but the statute does not grant authority to mandate certain programs be provided in Iowa districts.

Iowa Code §272.2 specifically allows the board to "make recommendations to the state board of education concerning standards for the approval of professional development programs." Note this provision allows for "recommendations" not programs. This mentor program does seem more akin to a professional development program than a licensing standard, and for that reason discussion should center around the question whether this program should be moved to the Department of Education.

In 1996 the federal government enacted the Safe Drinking Water Act Amendments of 1996 (Pub. L. 104-182). Section 1452 of this Act authorizes the U.S. Environmental Protection Agency (EPA) to enact a State Revolving Loan Fund (SRF) for drinking water-related projects to help water systems finance the costs of infrastructure needs. Authorizing legislation to set up this drinking water facilities fund in Iowa (1997 Iowa Acts, chapter 4) was approved in March. These rules will enable and administer the infrastructure loan fund. They create a special revolving fund to help local communities finance drinking water systems. This assistance comes as a loan. Public water systems, community water supplies and non-profit water supplies are eligible applicants. The program will be administered by the EPC and the Iowa Finance Authority.

Each year the federal government will provide a varying amount of money each year as a set-aside for smaller communities. Two percent of the entire available funds can be used to provide technical assistance to communities with a population of less that 10000. 15 percent of the total can be used for water source and wellhead protection. 10 percent can be set-aside for supervision and management programs.

A point system will be used to rank eligible projects. The system will consider such factors as water quality and risk to public health, nature of the intended improvements, affordability, wellhead or source improvements and the size of the community.

Iowa Code §455B.301 et sec. provides extensive regulation of solid waste, and the commission now proposes a general update its rules which have long implemented that statutory provision. The regulations for municipal landfills are set out in 103.2, while the provisions for non-municipal landfills are set out in 103.3; these are generally on-site industry owned facilities. A new rule, 103.4, relates solely to the disposal of debris from demolition of a structure; and rule 103.5 is proposed for coal residue (largely fly ash).

The most detailed standards are established for municipal landfills. Siting requirements require the landfill to be five feet above the water table unless it is unlikely to have an adverse affect on ground or surface water ensure the facilities cannot be near wells used for drinking water or habitable residences. Design criteria require both an upper and lower component, set out in specific detail; alternatives may be used if a registered engineer certifies the alternative will maintain contaminant levels within federal levels. Operation and development plans must be submitted for approval by the Department of Natural Resources, prior to beginning operations. Operating requirements include details on the proper compaction and coverage of garbage, monitoring requirements. The rule concludes with closure requirements.

A simplified version of these rules are used for the various types of non-municipal landfills. The rules note they are based on the assumption that a non-municipal landfill poses far less threat to the environment. Additional restrictions may be added on an ad hoc basis, based on the type of waste disposed. One difference should be noted; municipal landfills must submit a plan detailing "financial assurance"; in essence the ability to pay for any corrective work that might be needed, up to thirty years following the closure of the landfill. Such a plan is required by Iowa Code §455B.304(8). A similar requirement is not placed on the other types of landfills. The various types of non-municipal landfills are separately regulated because the solid waste poses a much reduced risk than the largely unidentified deposits in a municipal landfill. However, with no financial assurance requirement there is no protection, especially once the landfill is closed, for unexpected events and no guarantee that corrections would be made.

Senate File 473 mandated a number of changes regarding agricultural drainage wells. It mandates some well closures and creates new standards for existing wells; these include removing surface intakes and sealing cisterns. Under this filing all wells must be permitted by the department; both new and existing wells are subject to this mandate. Permits are based on three criteria:

• The application has been submitted on behalf of all persons having an ownership or use interest in all lands being drained by the well;
• Contamination potential can be minimized by closing surface intakes, fertilizer and pesticide control and other management practices;
• The are no economically and physically viable alternatives.

Approval can be further conditioned on site specific requirements; these include the closing or modification of cisterns to prevent direct entry of surface water, removal of intakes by 1999, regulation of the application of pesticides and animal waste and the property maintenance on the entire system to maintain efficiency. Renewal of these permits is conditioned on a finding that the applicant has been in compliance with these criteria. Note this means there is no automatic right of renewal.

These rules also mandate the closing of some existing drainage wells. No diversion permit will be granted if it is within a designated drainage well area. All existing wells within such an area must be closed by December 31, 1999. The closure must follow the same procedures established for the closure of water wells, set out in 567 IAC Chapter 39.

A perennial issue, the department proposes another update of its state complex parking rules. To a large extent the rules are identical to the current 1996 version. A violation of these rules carries a $5 fine with a $100 fine for handicapped violations. Under the rules each state employee is issued a parking decal which grants access to a particular lot or space. Repeated violations {six in six months} may result in a vehicle being impounded and parking privileges suspended.

These rules are supplemented by a brochure that in part summarizes the rules but also supplement them with additional provisions---specifically relating to legislative parking. The brochure provides that legislative employees use dash placards instead of permanently affixed decals_issued by the House or Senate.

The issue presented by the long-standing rule is the extent to which providers of home health care can provide incidental services not relating to health care. Rule 78.9 is specific:

A case review discovered, in a particular case, that the home health care provider was also providing some respite and chore service. The department stopped those additional services, although the primary care giver is provided funding for personal services, and two waivers have now been provided to maximize available service. It must be noted that confidentiality requirements prohibit the department from discussing the particulars of the case, thus discussion is limited to the general restrictions of the law.

The departments states that rule 78.9 cannot be waived to provide for personal service 1) because that would set a precedent allowing others to claim the same service and 2) The federal government would not pay for that service, thus requiring use of 100% state money. Proponents of the waiver claim the home health costs are far less than the cost of care facility placement and thus should be provided.

In essence the problem involves how many entities should provide the care_not whether the care is to be provided. The primary care giver wants a single provider to provide all services, while the department is willing to provide for additional services---but not to be provided by home health personnel. The solution is to ensure that personal service is provided through a chore service or other economical service provider, but saving the relatively expensive home health care for only health related needs.

House File 726, section 12 provides that the department must establish forms for public hearing notices on local government budget matters. The form is controversial because it requires local governments to note budget increases which exceed the rate of inflation. This requirement was not part of the Act. Because of this addition to the form local governments have protested that a description of this form has not been adopted through the rule-making process, thus denying them any meaningful opportunity to contest the addition of this requirement.

Iowa Code §17A.3 mandates that all agencies:

This provision was part of the initial 1975 legislation and requires that agencies at least identify the forms by title and number; the provision has never required that the actual text of the form go through the rulemaking process.

Local government representatives contend the forms should not be used until the requirements of §17A.3 have been met. They contend that a rulemaking process is necessary to provide an opportunity to protest the new requirements set out in the form. The opponents also contend the forms should not be used until the rulemaking requirements have been met. In response, department representatives note that the requirement applies only to forms "used by the public", suggesting this term does not include government entities. In support of this, the definition of rule, set out in Iowa Code §17A.2(10) excludes from rulemaking "An intergovernmental, interagency, or intra-agency memorandum, directive, manual, or other communication which does not substantially affect the legal rights of, or procedures available to, the public or any segment thereof."

In my opinion, a description of the form should be adopted through the rulemaking process. I feel the rulemaking mandate in §17A.3 is a requirement that stands independent of the exemption set out in §17A.2(10) The rule-making process is to be construed broadly to effectuate its purposes, which include {see: Iowa Code sections 17A.1(2) and 17A.23}:

• Providing legislative oversight of the powers and duties delegated to administrative agencies;
• Increasing the public accountability of administrative agencies;
• Simplifying government by assuring a uniform minimum procedure to which all agencies will be held in the conduct of their most important functions;
• Increasing public access to governmental information;
• Increasing public participation in the formation of administrative rules.

Broadly construing these five goals means that the terms used in Chapter 17A should be broadly construed, to ensure the largest segment of policy is made through the rule-making process. Thus the term public should mean more than just private citizens on entities, it should include the constituency of the agency -- in this case, city and county government.

This leaves the question whether the forms can be used pending rulemaking -- that particular issue has never before been rigorously pressed. §17A.4(3) specifically states that no "rule" is valid unless the rulemaking procedures have been followed; this section implies the form cannot be used until the process is complete. That conclusion is not absolute. Note that §17A.3 does not state that the form itself must be adopted as a rule, only a description must be adopted, which raises the argument that the prohibition of §17A.4(3) does not apply to the form itself, since the form itself is not a rule.

House File 514 provides a person shall not drive a motor vehicle unless financial liability coverage is in effect for the motor vehicle and unless the driver has in the motor vehicle the proof of financial liability coverage card issued for the motor vehicle. Liability coverage may be in the form of insurance, bond, certificate of deposit or by self-insurance. This requirement went into effect on December 1st.

These rules were initially published in September, filed on an emergency basis. The federal Telecommunications Act of 1996 {47 USC sec. 254} provides that every telecommunications carrier that provides interstate telecommunications services shall institute mechanisms established by the FCC to preserve and advance universal service.. The principle of universal service includes:

• Quality and rates.--Quality services should be available at just, reasonable, and affordable rates.
• Access to advanced services.--Access to advanced telecommunications and information services should be provided.
• Access in rural and high cost areas.--Consumers in all regions, including low-income consumers and those in rural, insular, and high cost areas, should have access to telecommunications and information services, including interexchange services and advanced telecommunications and information services, that are reasonably comparable to those services provided in urban areas and that are available at rates that are reasonably comparable to rates charged for similar services in urban areas.
• Equitable and nondiscriminatory contributions. -- All providers of telecommunications services should make an equitable and nondiscriminatory contribution to the and advancement of universal service.
• Specific and predictable support mechanisms.--There should be specific, predictable and sufficient Federal and State mechanisms to preserve and advance universal service.
• Access to advanced telecommunications services for schools, health care, and libraries.--Elementary and secondary schools and classrooms, health care providers, and libraries should have access to advanced telecommunications services.

A federal fund has been established to subsidize providers who work toward these goals. The rules were written to conform with federal policy in order to assure eligibility for this funding. To be eligible the provider must show that the provider meets the program requirements, provider the services supported by the fund, advertises the availability of the services, and offers the service throughout the provider area.

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