ADMINISTRATIVE RULES REVIEW COMMITTEE Rules Digest -- March 1998 Scheduled for committee review - April 13, 1998 - Room #22 For further information, please contact Joe Royce, Legal Counsel, Administrative Rules Review Committee

HIGHLIGHTS IN THIS ISSUE:

ETHICS AND CAMPAIGN DISCLOSURE BOARD, Corporate contribution, XIX IAB No. 19, ARC 7883A, notice.

ETHICS AND CAMPAIGN DISCLOSURE BOARD, Independent expenditures, XIX IAB No. 19, ARC 7882A, notice.

HUMAN SERVICES DEPARTMENT, Nonrehabilitative treatment , XIX IAB No. 19, ARC 7854A, Emergency.

INDUSTRIAL COMMISSIONER, Legal service liens, IAB Vol. XX, No 20, ARC 7887A, notice.

NATURAL RESOURCES DEPARTMENT, Deer seasons, IAB Vol. XX, No. 19, ARC 7879A, & 7880A, notice.

PHARMACY EXAMINERS BOARD, Impaired professionals, IAB Vol. XX, No 20, ARC 7896A, notice.

RACING & GAMING COMMISSION, Alcohol restrictions, IAB Vol. XX, No 20, ARC 7901A, adopted

SUBSTANCE ABUSE COMMISSION, OWI related programs, IAB Vol. XX, No 20, ARC 7903A, adopted

TRANSPORTATION DEPARTMENT, Motorcycle rider education, IAB Vol. XX, No. 19, ARC 7855A, adopted.

The board proposes a solution to the long-standing problem of corporate contributions. Iowa law prohibits corporate contributions, but there has always been an uncertain area relating to the use of corporate property by a candidate. These proposed changes are based on federal regulations dealing with federal elections.

The proposals set out circumstances where corporate entities may make property, goods and services available to candidates and political committees. Generally, the proposals would allow "occasional, isolated, or incidental" use of corporate facilities for campaign purposes. This would cover situations where a volunteer, who is at work, might make an individual copy or a single telephone call on behalf of a candidate, using corporate property.

The notice also sets out circumstances where campaigns can use corporate facilities, paying the fair market value for that use. In doing so the board recognizes that in many communities, the only feasible, temporary access to a number of telephones for use as a telephone bank is in a corporate facility.

Under the proposal candidates and committees would enjoy the convenience of using the corporate facilities, but could realize no identifiable financial benefit from the corporation to the candidate or committee. The corporation must be reimbursed the full fair market value of the property, good or service used by the candidate. Under this compromise the candidate has the convenience of the access to the corporate resource, but enjoys no financial benefit; thus there is no prohibited "contribution" of property or thing of value from the corporate entity. In recognition that a corporation enjoys free speech rights, the proposal stipulates that the corporation need not provide equal access to the same property, goods or services to other candidates or committees.

The proposal set out general standards to measure the value property, good or service being used. Copying costs should be based on commercial charges for like items. Telephone bank charges are set at $5 per telephone per hour, plus any long distance charges. Air transportation is set at the cost of a first class ticket or the cost of a charter. Other transportation is charged at the normal and usual rental charge.

Iowa Code section 56.13 relates to independent campaign contributions, providing in part that:

1. A contribution or expenditure on behalf of a candidate, if known and by the candidate is deemed action by the candidate and reported by the candidate's committee.
2. It is presumed that a candidate approves the action if the candidate had knowledge of it and failed to file a statement of disavowal with the commissioner or board and take corrective action within seventy-two hours of the action.
3. The person or group making the independent contribution must notify that candidate's committee in writing within twenty-four hours of taking the action.

The board proposes rules to detail the obligations imposed by this provision. The filing begins by establishing a definition for the phrase "express advocacy", providing examples of phrases and symbols which meet the definition. The filing also defines "independent expenditure" and provides much needed detail on the procedure for notifying the candidate of the expenditure and setting of the procedure for disavowal of that expenditure. Failure to file a disavowal within the specified time {72 hours for a candidate; 10 days for a ballot issue} results in a presumption that the expenditure is accepted and will be reported as an in-kind contribution; the presumption can only be rebutted upon presentation of clear and convincing evidence by the candidate or ballot issue committee that the candidate or committee had no intent at the time the expenditure was made to approve or accept the benefit of the expenditure.

The filing concludes with a penalty provision detailing the actual costs that may be imposed. A flat late penalty of $25 is assessed for each late-filed notice arising from the first expenditure for which the committee is delinquent in filing notices in a 12-month period. A flat late penalty shall be $50 for each late-filed notice arising from additional expenditures by the same committee in the succeeding 12-month period. However, if the independent expenditure notice is not filed within ten days after notice of the delinquency is sent to the committee by the board, the amount of the late-filing penalty shall increase to $100 per notice for a first-time delinquency, or to $200 per notice for a repeat delinquency by the same committee within the 12-month period. An independent expenditure notice which is not filed within 45 days after the delinquency notice is sent by the board shall be referred to as an extreme delinquency and shall be subject to additional penalties.

This emergency rule-making illustrates how the use of waivers can identify policies which have become outdated or ineffective. These amendments revise policy to allow delivery of family-centered nonrehabilitative treatment services to children who require services due to protective concerns but who do not have a rehabilitative treatment need that meets federal criteria for Medicaid funding. Children and families are currently receiving nonrehabilitative treatment services and parenting education interventions through the exception to policy process {waivers}. These amendments will allow social workers to approve family-centered treatment services for children with protective treatment needs, such as abuse, neglect, or risk of placement, after the Clinical Assessment and Consultation Team (CACT) has determined there is no rehabilitative treatment need.

The Department of Human Services has put these changes into emergency effect because in essence this policy is already in effect, on a case-by-case basis. Under current policy, staff request these family-centered nonrehabilitative treatment services through a exception to policy. Over 750 exceptions were approved in calendar year 1997. The frequent exception requests indicate there is a need to correct a flaw in the current policy.

Iowa Code §86.39 in part provides that an attorney in a workers compensation action may obtain a lien on any award as approved by the commissioner. Such liens have been approved for years but now the commissioner codifies a procedures for automatically establishing a lien under narrow circumstances. The attorney must file a client statement showing assent to the lien. The lien must be for reasonable legal service, not exceeding one third of the amount payable. Any lien for a higher amount must be approved by the commissioner.

The department proposes its annual update of Iowa's deer hunting seasons. The first of these two notices relate to deer management areas. These are not traditional "hunting" rules; instead they deal with taking deer in certain problem areas---most under the jurisdiction of the department, such as state parks and management areas, but provisions are set out allowing for the creation of urban deer management units. Licenses cost $25 and are good only in that specified deer management area on the established dates.

ARC 7880A is the annual update to Iowa's deer season. Generally speaking, the rules significantly raise the antlerless quotas. Paid antlerless licenses will be issued by quota established for each county in the special antlerless zone {most of Southern Iowa}. The most significant change is the addition of a special late season. In addition to the variety of regular season licenses, hunters may apply for one additional license for the special late season. A drawing will be held for each county where the number of applications exceeds the quota. Applications will be accepted on a first-come, first-served basis after September 1 if any county quotas do not fill. The maximum number of antlerless permits for an individual is four: two for the bow or second regular gun or late muzzleloader season and two for the special late season (if second licenses are available).

Iowa Code Supplement §155A.39 authorizes programs to assist impaired pharmacists and other board licensees. The Act encourages individuals or organizations to report to the board suspected chemical abuse, chemical dependence, or mental or physical illness, or which might endanger the public health and safety. As long as the report is made in good faith the individual or organization making the report is free from liability. The initial review is strictly confidential and if the allegation is without merit the record is to be expunged. All records and proceedings are privileged and confidential.

The board may contract with professional pharmaceutical associations or societies to provide a treatment program for licensees impaired by chemical abuse, chemical dependence, or mental or physical illness. The programs include education, intervention, and monitoring. Participating licensees must sign and comply with a recovery contract that identified the length of program treatment; any restrictions placed on the licensees practice during that period; and provisions for ongoing monitoring and aftercare. The board may add a surcharge up to ten percent of the applicable license or registration fee to fund programs to aid impaired pharmacists, pharmacist-interns, or pharmacy technicians.

For many years the committee has maintained an objection on 491 IAC 13.11, relating to alcohol consumption at Iowa's tracks; the objection states:

At its April 8, 1991, meeting the Administrative Rules Review Committee voted to object to the provisions of 491 IAC 4.27(99D), on the grounds this rule is unreasonable. In essence, the rule prohibits licensees or employees of a horse or dog track from having an alcohol level of .05, or in some cases .10. The committee's first concern is that it is unnecessary to limit consumption by licensees who are not actually working at the track; such as an owner who is present in a restricted area simply as an observer. Secondly, the committee believes that the level is unreasonably low for licensees who are not actually working. A .05 level can be achieved with as little as three beers; such a blood level would still allow the person to operate a motor vehicle, but the rule would prohibit that person from being in an unrestricted area of the track. The third problem is the accuracy of the test. The rule provides for the use of the "Breathalyzer." This device is used by police officers to get an initial reading, used only as justification to seek the more accurate blood or urine specimen. The Breathalyzer itself is not accurate enough to provide a reliable alcohol level.

In essence the committees' concern revolved around horse owners being held to the same alcohol standard as track employees or officials. Although horse owners are licensed by the commission, the committee members felt that horse or dog owners should be regulated more like patrons or guests of the track, rather than employees. In response the commission has offered a compromise. This amendment excludes the "winners circle" from the definition of restricted areas, thus allowing a horse owner or trainer to join the winning animal in the winners circle, even if the individual exceeded the stated alcohol level; alcohol limitations would still be in force in the testing areas, paddocks and the racetrack itself. It should be noted that the general public is allowed in none of these areas.

When this filing appeared under notice the committee questioned the commissions authority to impose an alcohol standard. Commission representatives consider this restriction important to maintain the integrity of the racing and gaming industry. Under Iowa Code §99D.7 the commission has virtually plenipotentiary powers over the operation of a track, as seen by these excerpts from that section: "The commission shall have full jurisdiction over and shall supervise all race meetings governed by this chapter." That section goes on to empower the commission to adopt standards for licensing the various occupations and to "adopt standards under which all race meetings shall be held and standards for the facilities within which the race meetings shall be held." This broad grant of regulatory authority is clearly sufficient to support alcohol restrictions on licensees and track employees. Moreover, Iowa Code sections 99D.8A(5) and 99F.6(8) provides that all licensees consent to searches by the DCI and Racing and Gaming employees, including searches of the person without a warrant.. The rule simply outlines how the commission intends to conduct searches to determine alcohol levels. The commission has chosen a means that is minimally intrusive on the rights of the individual.

This change appears to be a fair compromise. The State of Iowa has a zero alcohol tolerance for employees on the job, yet the rule is more lenient, setting a .05 standard for all licensees and employees, but licensees are exempted from even this limitation as long as they do not enter a restricted area. These restricted areas are inherently dangerous and the state has a public safety interest to ensure that alcohol-impaired individuals do not have access.

The commission finalizes detailed standards for substance abuse programs treating offenders under Iowa's OWI law. When the DOT revokes a license under Iowa Code chapter 321J, it also must order the person to submit to substance abuse evaluation and, if recommended by the facility, treatment or rehabilitation services. A provider of substance abuse evaluation and treatment or rehabilitation programs shall be licensed by the division of substance abuse or may be granted may be granted provisional authority by the Iowa department of public health to conduct a substance abuse evaluation required under Iowa Code chapter 321J. To obtain provisional authority, the provider must apply for a license to the Iowa department of public health accompanied by a recommendation from the district court having jurisdiction for the offense. Provisional authority will expire on July 1, 1998.

Persons convicted of operating a motor vehicle while intoxicated or whose driver's license or nonresident operating privileges are revoked under Iowa Code chapter 321J must undergo a substance abuse evaluation and, if recommended, treatment.

The initial screening must follow a nationally recognized standard. The screening must also include any available information on:

• blood alcohol content at time of arrest; history of other alcohol or drug-related arrests;
• history of alcohol/drug treatment; history of mental health problems and treatment;
• any OWI arrest that included personal injury or additional charge(s);
• family history of substance abuse shall be collected.

If the initial screening shows a potential for chemical dependency, further evaluations will be completed. The additional work consists of further development of six assessment dimensions outlined in a nationally recognized standard.

Treatment consists of a broad range of planned and continuing, inpatient, outpatient, residential care services, including ongoing diagnostic evaluation, counseling, medical, psychiatric, psychological, and social service care geared toward influencing the behavior of such individuals to achieve a state of rehabilitation. Individuals will be placed in the appropriate level of care in accordance with the American Society of Addiction Medicine, Patient Placement Criteria for the Treatment of Substance-Related Disorders, Second Edition.

The cost of screening and evaluation shall be no more than $100 and the individual shall be responsible for the costs of the screening and evaluation. A person admitted to the program who cannot meet the costs of the treatment in whole or in part will be considered a state patient and eligible for state-funded treatment as provided in Iowa Code section 125.44. Programs should utilize the department's statewide sliding fee schedule to determine cost of treatment. There is no prohibition on any individual from paying in whole the cost of treatment. Programs may seek reimbursement of cost of screening, evaluation and treatment through an individual's insurance company, firm or corporation bound to pay, Medicaid for individual eligible or enrolled, or other forms of funding.

The department implements 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.

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