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Rules Digest -- April 1998
Scheduled for committee review - May 12, 1998 - Room #22
For further information, please contact Joe Royce, Legal Counsel,
Administrative Rules Review Committee
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ADMINISTRATIVE RULES REVIEW COMMITTEE
Rules Digest -- April 1998 Scheduled for committee review - May 12, 1998 - Room #22 For further information, please contact Joe Royce, Legal Counsel, Administrative Rules Review Committee |
| EDUCATION DEPARTMENT 1:00, Reversion of funds , XIX IAB No. 21, ARC 7883A, notice. |
The department proposes a series of non-controversial amendments relating to child development councils. Item six, however, contains a provision that generates some additional interest. The proposed amendment to item six states: "Grantees who revert 3 percent or more of their program budget at the end of the 1998 budget year, and every budget year thereafter, will have that dollar amount permanently deducted from all subsequent grant awards."
This rather serious measure is an attempt to compel some of the councils to be more accurate in their budgetary process and limit their requests to the actual level of their expense. Some councils repeatedly reverted fund at the end of the fiscal year because they are unaware that their programs carried a surplus. This surplus could have been transferred to another program if it had been discovered before the reversion. Once funds have been reverted to the state they are lost to the program, even though other grantees need additional funding and could have received, and greatly benefited from those funds if the surplus had been discovered and returned to the program before the end of the fiscal year.
To encourage improved budgeting, this proposal proposes to permanently eliminate future reversions by those councils by reducing future awards to them by the amount of the reversion. This change should be effective, but it needs to be amended to protect against accidental reversions caused by unanticipated events. A provision should be added stating that the penalty will be waived if the reversion of funds was based on an unanticipated change in circumstances beyond the control of the local council.
| EDUCATION DEPARTMENT 1:00, Open enrollment transportation, XIX IAB No. 21, ARC 7944A, adopted. |
Subrule 17.9(1) sets out the duties of a parent or guardian concerning a student who is open enrolled in a district other than the district of residence. The subrule makes clear that the parent or guardian must transport the student, in most cases without reimbursement, to and from a point on the regular school bus route of the receiving district. The subrule details the current state of the law--that the receiving district may send a school bus into the sending district to pick up an open enrolled student only when both districts agree to this arrangement. These provisions accurately implement the specific limitation set out in Iowa Code 282.18(10).
There have been complaints over both the statute and the subrule, contending that local districts are not always fair in making these agreements. Neither the statute nor the rule has any standards to channel the discretion of a local school board, nor is there any legal requirement that boards develop general standards. The only applicable standard is the general principle of administrative law that a government entity cannot act arbitrarily or capriciously; in essence this means that a school board must have a rational basis for its decision and be consistent. The department has held that a district may properly refuse to have any transportation agreements at all.
| EMPLOYMENT APPEAL BOARD 1:10, General re-write , XIX IAB No. 21, ARC 7914A, notice. |
The Employment Appeal Board, housed within the Department of Inspections and Appeals, serves primarily as the final arbiter for unemployment claims. The board is a three member panel appointed by the Governor.
The primary role of the board is to review the decisions of the fourteen administrative law judges in Workforce Development; these ALJ's churn out some 15,000 decisions per year. Persons dissatisfied with those decisions appeal to the board, not to the Director of Workforce Development--a true independent review. The board hears a number of other appeals: elevator code appeals, peace office and capitol security dismissals, decisions by the Department of Personnel and OSHA citations.
Unemployment cases make up the bulk of the board's workload and have the most detailed rules. These cases are based on the evidence contained in the entire record before the administrative law judge, including the testimony of the hearing before the administrative law judge, together with any oral or written arguments presented to the board. If the appeal board orders additional evidence be admitted to the record, that evidence and briefs pertaining to that evidence is also considered. Generally new evidence or testimony is not taken at these appeal hearing, but exceptions can be made in special circumstances.
Separate chapters set out procedures for personnel, contractor or IPERS appeals. These rules are largely condensed versions of the unemployment rules. Both personnel and construction contractor appeals are actually contested case hearings--the board is not acting in an appellate capacity, it is responsible for conducting the initial evidentiary hearing itself; under these rules the board may delegate the hearing responsibility to an ALJ and then review that proposed decision on appeal.
| ENVIRONMENTAL PROTECTION DIVISION 11:00, Medical waste incinerators , XIX IAB No. 21, ARC 7930A, notice. |
The commission proposes highly technical regulations dealing, in part, with existing hospital, medical, and infectious waste incinerators; these rules are based on federal provisions. "Medical/infectious waste" means any waste generated in the diagnosis, treatment, or immunization of human beings or animals; including research or in the production or testing of biological materials. The term does not include hazardous waste; household waste, ash from incineration of medical/infectious waste; bodies that are intended for burial; and domestic sewage materials. "Hospital waste" includes any items discarded by a hospital.
This proposal sets outs new source performance standards and emission guidelines to reduce air emissions from hospital/medical/infectious waste incinerators (called: HMIWI). The federal provisions which are the basis of these rules were adopted in 1997 and implement sections 111 and 129 of the Clean Air Act as amended in 1990. Regulated facilities are required to achieve emission levels set by the EPA, as detailed in two charts published with the rules. The proposals establish emission limits for particulate matter, opacity, and various other emissions. Some of the pollutants being regulated are considered to be carcinogens and at sufficient concentrations can cause toxic effects.
The rules also establish requirements for HMIWI operator training and qualification, mandating at least 24 hours of training in several mandated areas; waste management plans to minimize the volume of waste, and testing/monitoring of pollutants and operating parameters to ensure the effective operation of the equipment. Additionally, the rules for existing HMIWI contain equipment inspection requirements requiring a 17 point inspection on an annual basis.
| ENVIRONMENTAL PROTECTION DIVISION 11:00, Non-public water wells, IAB Vol. XX, No 21, ARC 7929A, adopted. |
For the first time since 1983 the division implements a major revision of the non-public water well registration program. The rules will be applicable to all non-public supplies used for domestic, agricultural, commercial and industrial consumption. Variances may be available if equal protection can be provided by another means.
The rules begin by establishing separation distances for various sources of potential contamination. It then sets out detailed standards for well construction. These standards include material standards and the weights and dimensions for casing pipes and couplings. Standards for the pump, pump equipment and the pump house are also set out. Similar provisions are currently in place for all these provisions, the proposal simple adds additional categories and detail.
| HUMAN SERVICES DEPARTMENT 9:30, Individual development accounts, IAB Vol. XX, No 21, ARC 7909A, notice. |
The Department proposes several minor updates to this program; the first changes since its inception in 1995. Individual development accounts {IDAs} are income-producing investment savings accounts established through an operating organization to help low-income Iowans accumulate assets and income for long-term goals. Any person whose family household income does not exceed 200 percent of the federal poverty level may have an IDA. Assets in accounts grow through deposits and matches contributed by individuals, charitable organizations, the operating organization, and the account holder. In addition, the state will provide annual formula-based savings matches on account holder deposits of up to $2,000 annually. Income earned on the account is tax-exempt.
| INSURANCE DIVISION 2:00, Disclosure of certain contractual arrangements, IAB Vol. XX, No 21, ARC 7939A, NOTICE. |
This notice of intended action requires health insurance carriers and health maintenance organizations to disclose to policyholders the existence of any drug formularies and the existence of any contractual arrangements which provide rebates or other incentives for drugs or medical devices. Formularies are in essence a list of drugs or medications which are covered under the policy.
| NATURAL RESOURCES COMMISSION 9:40, Ban on the harvest of Washboard Mussels, IAB Vol. XX, No 21, ARC 7935A, adopted. |
The states of Minnesota, Wisconsin Illinois and Missouri have now closed their portion of the Mississippi to Washboard mussel harvest; Iowa now follow suit with a rule to close the harvest effective May 13th, 1998, the day following the committee meeting. This action was taken in response to a 1996 report by the Upper Mississippi River Conservation Committee, which opined that the stocks of washboard mussels are overexploited and recommended that the harvest of this species be halted. The rule does not impact the harvest of the six remaining species open to harvest, although by far the washboard mussel is the most desirable shell.
The commission notes that the reported Iowa harvest has dropped dramatically in ten years, from 770,000 pounds down to a low of under 23,000 in 1997. Two studies, one from Wisconsin and a second from Illinois also indicate a drop in the number of mussels. Some six years ago the commission attempted to stem the decline by raising the size of the mussel which could be taken, to four inches. Also, the commission and other states are concerned about the apparent lack of reproduction by washboard mussels in the last 6 to 8 years. Data from the Shell Exporters study, Wisconsin DNR and Illinois Natural History Survey all show that in the last 6 to 8 years there has been limited to essentially no reproduction and recruitment of young washboard mussels. The commission concedes that commercial taking is one of several factors for the current decline, but the commission also notes that is the one factor over which the commission can exercise some control.
This proposal will impact commercial clammers and shell exporters, who strongly oppose this change, contending that the commissions' data is incorrect. They note that the gradual increase in the legal harvest size of a mussel, from 3&1/2 to 3&3/4 to finally 4 inches automatically reduces the harvest and has already cut the number of Iowa divers from some 300 down to around 24. They also state that the commission harvest reports are inaccurately interpreted; the reporting form has been modified and the opponents state that much of the reported decline can be attributed to the difference in reporting the live weight of the animal under the old form to reporting the shell weight separately from the weight of the mussel flesh under the new form. The opponents also question the validity of both the Wisconsin and Illinois studies, contending they are too limited in scope to accurately measure the mussel population. Opponents also contend that commercial taking is one of several factors for the current decline, which include pollution, the lock and dam system, and barge traffic; they maintain that commercial taking of mussels does not significantly impact the population.
Initial review of this provision was held by the committee in January; with the department holding additional hearings of its own later that same month. At that January meeting the rules committee referred the issue to the General Assembly; The House Natural Resources Committee held two hearings during the 1998 session. Legislation to delay the rule and conduct additional studies was debated twice on the House floor; no legislative action was taken. A regulatory flexibility analysis was requested for this proposal; that report was published in February. In essence it set an annual value of the harvest at $56,000.
| PERSONNEL DEPARTMENT 2:30, Deferred compensation, IAB Vol. XX, No. 21, ARC 7940A, adopted. |
For the forth time the Committee meets to consider a revised deferred compensation program for state employees. This filing supplants an emergency filed version of this program, in effect since September, 1997. The text of this filing is essentially identical to the earlier emergency filing, but the program itself is significantly changed.
This filing also has the effect of terminating an objection imposed by the committee in November. The first portion of the objection is procedurally based, contending that the emergency filing and implementation of this program constituted an abuse of the "emergency" procedures set out in Iowa Code §§17A.4(2) and .5(2)"b". The second portion was a substantive objection, questioning the underlying statutory authority of the filing.
The genesis of this issue was the enactment of House File 540, which changed and expanded the choices available to state employees in the area of deferred compensation; it essence it required the department to make available to state the option of utilizing mutual funds as an investment alternative to the currently used annuity plans.
This initial filing did contain significant changes in policy that were not readily apparent in House File 540 itself. Under the previous program any company with 30 applicants could participate in the state's deferred compensation program, and some 38 providers offered annuities to state employees. After September 1st only Great West Life and Annuity could provide deferred compensation services, although the existing providers could continue to serve their existing clients. Because of the controversy surrounding these changes a formal mediation process was begun utilizing Peter Pashler of the Ahlers, Cooney law firm as the mediator. This process lasted several months, with the result that major modifications have been made in the program.
The need for any action at this point appears to be moot since a compromise has been reached between the various parties in interest. This filing does not reflect any of the new detail necessitated by the compromise; this filing merely ensures that rules remain "on the books" after the termination of the emergency filing. A new rule-making will begin later this Spring to make the necessary changes. The initial program had Great West Life & Annuity as the exclusive provider of deferred compensation, serving as the record-keeper for a number of mutual fund products selected by the state. Great West also provided for the necessary educational services for state employees. The pre-exiting annuity providers were frozen, serving only their existing clients.
That plan has now been changed to allow 10 insurance companies to offer deferred compensation products; they will be selected by bidding process, based on strength and the number of Iowa employees currently enrolled. A request for proposal is currently under way to select these additional providers. Thus at least a portion of the current providers will remain active under the compromise program. Great West will remain the record-keeper for the Iowa Stable Value fund, the core set of mutual funds (8-15), Great West's own series of funds and the self-directed brokerage option. For these services Great West will receive 6/10% of the fund balances, but will not retain exclusivity as the sole entity for education and marketing. The State of Iowa will assume the educational role of the plan, adding two FTE's for this function. No educational programs will be conducted on state time.
| DEPARTMENT OF PUBLIC HEALTH 3:00, Scope of practice review, IAB Vol. XX, No. 21, ARC 7948A, notice. |
House File 710 was enacted in 1997; in part the Act created a pilot project funding a scope of review process within the Department of Public Health. The project handles:
A scope of practice review committee must evaluate the above listed issues and make recommendations to the general assembly.
With almost a full year since the first implementation of the program the department now proposes a number of minor changes. These amendments limit the director's authority to direct the initiation of a scope of practice review, establish ex officio nonvoting members on review committees, and direct committees to encourage the involvement of outside interested parties in the review process. In essence they provide that the director will consult with members of the General Assembly and the rules committee before the director initiates a review.
| DEPARTMENT OF PUBLIC HEALTH 3:00, Pool & spa regulation, IAB Vol. XX, No. 21, ARC 7924A, adopted. |
The department completes action on a general update of its rules relating to spas and swimming pools. The rules describe:
These rules apply to swimming pools, spas, wading pools, water slides, wave pools, and bathhouses connected to swimming pools owned or operated by government, commercial or private entities including public or private school corporations, hotels, motels, camps, apartments, condominiums, health clubs and country clubs. The rules do not apply to a residential swimming pool or spa that is permanently installed in a single-family dwelling, to a decorative fountain or to a therapeutic swimming pool or spa which is under the direct supervision of qualified medical personnel. These provisions do not apply to a swimming pool or spa operated by a homeowners association representing 72 or fewer dwelling units if the association bylaws or any rental agreements:1) include an exemption from the requirements of this chapter, 2) provide for inspection of the swimming pool or spa by an entity other than the department or local board of health, and 3) assume any liability associated with operation of the swimming pool and spa.
This chapter sets out minimum safety and water quality requirements for the operation of swimming pools and spas; standards for construction; procedures for registration; qualifications for swimming pool and spa inspectors; qualifications for swimming pool and spa operators and lifeguards; and procedures for health departments to provide for the inspection of swimming pools and spas and enforcement of these rules. Swimming pools and spas which are in compliance with these rules must also comply with the requirements of any other applicable federal, state or local laws, rules or ordinances.
| DEPARTMENT OF PUBLIC HEALTH 3:00, Waivers for administrative rules , XX IAB No. 21, ARC 7921A, adopted. |
House file 667 revises portions of the Iowa Administrative Procedures Act; A portion of that legislation calls upon agencies to explain in their proposed rulemaking why waiver provisions are not made a part of that particular regulation. The legislative message is that while waivers are not mandatory, agencies should at least think about adding these provisions to new programs. While it is clear that an agency cannot be forced to grant a waiver, it should be noted that the federal and Iowa constitutions both require that all persons be treated equally under the law. For waivers this means that a waiver, once granted, sets a precedent for anyone else in that same fact circumstance.
The concept embodied in waivers is that the general provisions of a rule may not be flexible enough to avoid unfairness or injustice in a particular case, and thus a simple process should exist to allow individual to request that a rule be waived or modified, based on the unique fact situation of that individual. The rule of thumb is that an agency has the power to waive a rule as long as that rule is not specifically required by statute or the waiver itself would not contravene a statute. The Department of Human Services has for many years implemented a waiver policy and now the Department of Public Health implements a similar regulation. This filing, simple and yet complete, could well serve as a model for any agency wishing to establish a waiver process
These rules were initially noticed in June and, following a re-draft, were re-noticed in January, 1998. They set out a petition process which is similar to the process used to obtain a declaratory ruling. The granting of a waiver is completely discretionary with the director, although an individual denied a waiver can demand a contested case proceeding. A waiver or variance under this chapter may be granted only upon a showing that:
Even if a waiver is granted, the form or substance may differ from that requested. The director may impose additional terms or conditions and establish a time period limited the effectiveness of the waiver or variance. It must also be noted that a waiver or variance is only as reliable as the facts that support it, thus a waiver or variance is void if the material facts upon which the request is based are not true or if material facts have been withheld. The department may at any time cancel a waiver or variance, after an opportunity for a contested case, if the director finds that the facts as stated in the request are not true, material facts have been withheld, the alternative means of compliance provided in the waiver or variance has failed to achieve the objectives of the statute, or the petitioner has failed to comply with conditions set forth in the waiver or variance approval.
| SECRETARY OF STATE 11:40, Sales tax for schools, H.F. 2282, selective. |
House File 2282 provides for a local option sales tax for school improvement. Moneys received by a county for school infrastructure under the Act can be utilized solely for school needs. This includes activities for which a school district is authorized to contract indebtedness and issue general obligation bonds except those activities related to a teacher's or superintendent's home. This also includes:
An election may be called by either a public petition, the county board of supervisors, or a school board or boards whose area represents over half the population. The ballot proposition shall specify the rate of tax, the date the tax will be imposed and repealed, and shall contain a statement as to the specific purpose or purposes for which the revenues shall be expended. The rate of tax shall not be more than one percent as set by the county board of supervisors. The state commissioner of elections is to establish by rule a uniform, state-wide form for the ballot proposition which form shall be uniform throughout the state.
Because of the pressure for speedy implementation the commission of elections proposes to emergency implement a skeletal procedure sufficient to allow elections this coming Summer. Later this filing might be supplemented with more detailed provisions dealing with the multitude of questions not answered in the statute. Such questions include the level of detail that must be set out on the ballot. Representatives from the Secretary of State would like to meet with committee members prior to the emergency implementation and discuss the various options and alternatives that exist.
| SECRETARY OF STATE no rep, Waste tire haulers, IAB Vol. XX, No 21, ARC 7913A, adopted. |
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:
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.
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