ADMINISTRATIVE RULES REVIEW COMMITTEE Rules Digest -- May 1998 Scheduled for committee review - June 9, 1998 - Room #118 For further information, please contact Joe Royce, Legal Counsel, Administrative Rules Review Committee

SPECIAL NOTE

There is much interest in a recently proposed rule change by the Iowa Racing and Gaming Commission, relating to the licensing of tracks and riverboats and further relating to certain gaming operations. These rules have been submitted to the Governor and will be published as a Notice of Intended Action on June 17th, 1998. The legislatures' Administrative Rules Review Committee will conduct an initial review on either July 14th or 15th, 1998. The rules can be effective no sooner September 16th.

HIGHLIGHTS IN THIS ISSUE:

AGRICULTURE DEPARTMENT, Movement of infested bees , XIX IAB No. 23, ARC 7970A, emergency

DENTAL EXAMINER BOARD, Dental hygienists , XIX IAB No. 24, ARC 8015A, 8016A, 8017A, 8018A, 8019A, notice;

EDUCATION DEPARTMENT, Non-school athletics , XIX IAB No. 23, ARC7977A, notice

ENVIRONMENTAL PROTECTION DIVISION, Coal Landfill, IAB Vol. XX, No. 24, ARC 8026A, notice

ENVIRONMENTAL PROTECTION DIVISION, Property tax exemption for pollution control, 567 IAC Ch. 11, selective review

ETHICS AND CAMPAIGN DISCLOSURE BOARD, Corporate contribution , XX IAB No. 25, ARC 8047A, adopted

ETHICS AND CAMPAIGN DISCLOSURE BOARD, Independent expenditures, XIX IAB No. 19, ARC 8049A, adopted

HUMAN SERVICES DEPARTMENT, Iowa plan for behavioral health, IAB Vol. XX, No. 24, ARC 8008A, notice.

HUMAN SERVICES DEPARTMENT, Managed health care, IAB Vol. XX, No. 23, ARC 7973A, adopted

PHARMACY EXAMINERS BOARD, Impaired professionals, IAB Vol. XX, No 24, ARC 1812A,adopted

PUBLIC HEALTH DEPARTMENT, Standards for workplace drug testing, IAB Vol. XX, No. 23, ARC 7982A, emergency

SECRETARY OF STATE, Sales tax for schools, ARC 8023A, IAB Vol. XX, No.24, emergency

UTILITIES DIVISION, Energy efficiency plans, IAB Vol. XX, No. 23, ARC 7986A, notice

America's beekeepers have been devastated by the Varroa mite, which has severely damaged many hives. A pesticide has now been developed which controls these pests. This emergency filing is intended to prohibit honeybees from being transported into Iowa from the state of Florida, which is known to be infested with Varroa mites that are resistant to fluvalinate miticide, the only product registered for the control of the mites. This provision will definitely affect one beekeeper who traditionally moves bees into Iowa for the Summer, and it may impact several others. It does appear to be the only way to slow the spread of these treatment resistant mites.

The board takes action on a series of rules relating to the practice of dental hygiene. The rules begin by eliminating a current provision which prohibits a hygienist from injecting anesthetics. New rules require that a hygienist administering local anesthesia complete a course of training on anesthesia and obtain a permit from the board. The rules then require the direct supervision of a dentist while local anesthesia is being administered or while nitrous oxide is being monitored. Direct supervision means the dentist must present at all times. All other services provided by a hygienist do not require a dentist to be on premise.

ARC 8019A deals with expanded practice by dental assistants-persons employed to assist the dentist, but who are not licensed hygienists under Iowa Code §153.15. The scope-of-practice for these unlicensed personnel is being expanded to allow the assistant to perform tooth polishing and monitor the administration of nitrous oxide. In both cases the assistant must work under the direct supervision of the dentist and have specific training in those functions.

In essence the rules establish the same scope of authority for hygienists and assistants in monitoring nitrous oxide. Both must complete the same training and the dentist must be physically present while the gas is initiated, and must be in the general vicinity for the remainder of the procedure.

The department proposes the following new rule: "The local school board shall by policy determine whether or not participation in non-school athletic events during the same season is permitted and provide penalties for students who may be in violation of the board's policy." This provision will replace a current policy which simply prohibits a student from participating both in a "club" and a school athletic activity, unless the school board authorizes the activity.

The amendment will force Iowa's school districts to address this problem, instead of simply blaming a state rule for the restriction. This change may well provoke confrontations on the local district level. A number of athletic activities are sponsored by non-school affiliated clubs. In some cases, such as soccer, the club teams precede the school program and may even be better than the school program. This sets up a confrontation in many local districts involving conflicts in practices, games and tournaments for several sports. This proposed rule change ends this problem as a state issue, but the problem may continue on the local level for some time to come.

The commission proposes a new regulation dealing exclusively with coal residue landfills. Coal waste, mainly fly ash, presents a reduced risk to the environment and for that reason enjoys its own simplified regulatory category. Coal waste permits are issued for a ten year period and are renewable. Coal waste cannot be located on a wetland and must be five feet above the groundwater table. The waste cannot be located with 300 feet of an inhabited residence. Surface water must be diverted and the site must be fenced. Dust control measure must be in place, but daily covering of the waste is not required.. At least one monitoring well must be established with annual sampling.

Upon closure the site must be covered with two feet of compacted soil and one foot on uncompacted soil with a common grass covering; slope musts be at least 3% but not more than 25% The original condition of this covering must be maintained for not less than ten years.

The topic presented in this review is the growing use of a pollution control tax exemption by feedlots. As outlined below, Iowa statutes and rules make this property tax exemption widely available for most manure management equipment. Iowa Code section 427.1(19) creates a broad property tax exemption for pollution-control property, defined as "_personal property or improvements to real property, or any portion thereof, used primarily to control or abate pollution of any air or water of this state or used primarily to enhance the quality of any air or water of this state_" The Environmental Protection Commission has the responsibility of certifying the pollution control property. The commission has rule-making authority to establish the certification procedure, including evaluation of the equipment itself.

To comply with this mandate the division has adopted 567 IAC Chapter 11, which sets out certain standards for the exemption. Rule 11.6 states that property which has been installed and is used primarily to meet an effluent standard, a water quality standard, an emission standard or to control hydrocarbons, fugitive dust, odors or other air contaminants in a reasonably adequate manner is considered to be used primarily to control or abate pollution, while property which has been installed to meet a more stringent standard than that required by law considered to be used primarily to enhance the quality of the water or air. Each application is considered in the context of its particular circumstances.

Under these standards treatment facilities which neutralize or stabilize sewage, industrial waste or other waste, including the necessary pumping and transmitting facilities are eligible for the exemption. Additionally improvements to real property, such as lagoons, ponds and structures for the storage or treatment of sewage, industrial waste or other waste from a plant or other property qualify. A building also may qualify if it performs no function other than housing or sheltering other pollution control property.

This exemption is now being extensively used by feedlots, accounting for as much as 95% of the certifications granted for wastewater property tax certifications. The EPC will certify any real property or fixed equipment that stores, transports or otherwise handles manure; the commission makes no effort to calculate the actual value of the equipment, leaving that determination for the local assessor. There is even some uncertainty whether assessors are mandated to grant the exemption certified by the division or whether they have discretion to reject the claim.

The board adopts a clarification to the long-standing problem of corporate contributions in Iowa Campaigns. Iowa law prohibits corporate contributions, but there has always been an uncertain area relating to the use of corporate property by a candidate. Until the promulgation of these rules, any use of corporate property was at best questionable. A significant portion of the amendments closely parallel the federal rule (11 CFR §114.9) implementing the federal statute (2 U.S.C. 441b) prohibiting corporate activity with regard to federal candidate elections.

The rules set out circumstances where corporate entities may make property, goods and services available to candidates and political committees. Generally, they would allow "occasional, isolated, or incidental" use of corporate facilities for campaign purposes. Any such activity which does not exceed one hour per week or four hours per month, regardless of whether the activity is undertaken during or after normal working hours, shall be considered as occasional, isolated, or incidental use of the corporate facilities. 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 filing also sets out circumstances where campaigns can use corporate facilities, paying the fair market value for that use. This allows candidates and committees to enjoy the convenience of using the corporate facilities, while realizing 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. Since there is no financial benefit; 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 rules stipulates that the corporation need not provide equal access to the same property, goods or services to other candidates or committees.

There have been several concerns voiced over this filing, these include questions over:

• Applicability. The rules apply equally to all corporations, regardless of size. The comment has been made that large corporations could make a vast array of services available to a favored candidate; and that even the required reimbursement does not even out the disadvantage imposed on a candidate who does not have access to a large corporate facility.
• Use of corporate property by volunteers. The rule allow use of corporate facilities for individual volunteer activity by stockholders, administrative officers and employees for "occasional, isolated or incidental use." The comment has been made that volunteer efforts by employees may be suspect, since an employee is under the direction and control of the employer. To avoid the possibility of subtle coercion, the suggestion was made that the volunteer exception be limited to stockholders and officers.
• Occasional, isolated or incidental use of corporate property. The comment has been made that while "occasional, isolated or incidental use" of corporate property has now been authorized in the rule, their is no mechanism to report that use to the Commission or control abuse of that privilege.
• Costs and charges are unsubstantiated. The charges set out in the rule do not accurately reflect the actual cost to the corporation,
• Documentation. The rules call for the committee which receives goods or services to retain the necessary documents to show that the fair market value of the good or service was reimbursed. Committee reports filed with the commission will also identify the reimbursement. The comment has been made that since the corporation does not file with the commission, there is no double check to ensure the accuracy of the filings by the committee.

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 adopts 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.

These proposed rules create the Iowa Plan for Behavioral Health {Iowa Plan}, which is a managed care plan for the delivery of mental health and substance abuse services. The Iowa Plan will replace the Mental Health Access Plan and the Iowa Managed Substance Abuse Care Plan effective January 1, 1999. These two programs have been in place since 1995.

Under the plan the department will contract with one or several entities to provide mental health services. Contractors will be paid a capitated rate based on the number of enrollees. Contractors must provide services at least as accessible as those provided under the old plan. Clients may choose their particular care provider from among those participating in the program. They must provide a broad range of services, which in part include:

• Ambulance services for psychiatric conditions.
• Emergency room services for psychiatric conditions available 24 hours per day, 365 days per year.
• Inpatient hospital care for psychiatric conditions.
• Outpatient hospital care for psychiatric conditions including intensive outpatient services.
• Day treatment.
• Psychiatric physician services including consultations requested for enrollees receiving treatment for other medical conditions.
• Services of a licensed psychologist for testing, evaluation and treatment of mental illness.

The contractor must establish written procedures by which clients providers may request a clinical decision review. The clinical decision review, when requested, shall be conducted by staff other than the those making the original clinical care decision. All policies related to clinical decision review shall be approved by the department prior to implementation. It should be noted this neatly sidesteps the rule-making process. The department controls the contractor policy, but does not create it, thus these important decisions are not published or reviewed as administrative rules.

Clients may appeal clinical care decisions in accordance with the appeal process available to all persons receiving Medicaid-funded services as set forth in 441--Chapter 7 if the enrollee or member is not satisfied with the final decision rendered by the contractor through the contractor's clinical decision review process.

The department completes action on a number of changes to its managed care program; this program in essence enrolls Medicaid recipients into HMO's where those organizations are available. The proposal ads significant detail to the definition of emergency care -- now entitled "emergent care". This definition is important recipients do not need prior authorization to seek this care. The definition is required by federal law. "Emergent medical condition" means:

  "a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent layperson, who possesses an average knowledge of health and medicine, could reasonably expect it to result in:
  1. Placing the health of the person (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,
  2. Serious impairment to bodily functions, or
  3. Serious dysfunction of any bodily organ or part.

The determination of this condition exists is decided by a medical professional, based on the patient's medical condition, including presenting symptoms and medical history prior to treatment. A similar definition is used for less serious "urgent" medical care. In these cases prior authorization is required, but care must be provided in 24 hours.

The changes also drop a current provision prohibiting an HMO from have more than 75% Medicaid clients, and restricting providers ability to market their services.

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.

House File 299 changed the scope of workplace drug testing, including the standards for the labs performing that testing, stating in part: "All confirmatory drug testing shall be conducted at a laboratory certified by the United States department of health and human services' substance abuse and mental health services administration or approved under rules adopted by the Iowa department of public health."

Under the emergency rules all supervisory personnel in the lab must meet stringent educational and experience standards. Approved laboratories must have written procedures for performing alcohol or drug testing including procedures for: sample acquisition; chain of custody; sample and report security; test performance; reporting of results; and confidentiality. Performance in these areas will be reviewed annually.

Complete chain of custody documentation must be maintained for each sample from the time of collection from the individual to the time the sample is discarded. Each time the sample is handled or transferred, the name of the individual receiving the sample, the time and date of transfer, and the recipient or destination of the sample shall be documented.) If the first portion of the sample yielded a confirmed positive test result, the laboratory shall store the second portion of that sample until receipt of a confirmed negative test result or for a period of at least 45 calendar days following the completion of the initial confirmatory testing. Documentation of the confirmation process must be kept two years.

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. 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.

Representatives from the Secretary of State's office met with committee members at its May meeting to discuss some of the ambiguities inherent in this legislation. These include such issues as:

• Who decides the period of imposition?
• Who determines the text of the proposition?
• How specifically should the purposes of the tax be detailed in the text?
• How should the costs of the election be apportioned?

Of these issues the most pressing is the apportionment of costs. Under the Act costs are apportioned according to the number of voters in the school district in relation to the voters in the county. However, school districts are not tied to county boundaries; thus a district may be saddled with a high percentage of an election cost even though it may have only a small area within the taxing county. General committee discussion revolved around the extent to which these issues could be addressed by rule, and which required legislative solutions. It was the general consensus that temporarily these problems could be addressed locally on a case-by-case basis for the elections this Summer and Fall. At this point the Committee might consider a general referral of these rules to the legislature in order to encourage dealing with these issues through legislation.

These proposed amendments implement the provisions Iowa Code section 476.6(19)"b" requiring the division to develop specific capacity and energy savings standards for each utility. In these amendments to existing Chapter 35, the division proposes the review of assessments and development of capacity and energy savings standards be conducted approximately every four years in a contested case proceeding in conjunction with the review of the utilities' energy efficiency plans. The details of these plans are set out in subrules 35.8(1) and (2). The proposal mandates two highly detailed studies from each Iowa utility. Under these provisions each utility must file an assessment of potential energy and capacity savings available from actual and projected customer usage by applying commercially available technology and improved operating practices to energy-using equipment and buildings. The utility must also file an energy efficiency plan listing all proposed new, modified, and existing energy efficiency programs. This particular requirement is similar to a provision currently in place.

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