ADMINISTRATIVE RULES REVIEW COMMITTEE Rules Digest -- June 1998 Scheduled for committee review - July 14-15, 1998 - Room #118 For further information, please contact Joe Royce, Legal Counsel, Administrative Rules Review Committee

HIGHLIGHTS IN THIS ISSUE:

AGRICULTURE DEPARTMENT Animal feeds

EDUCATION DEPARTMENT, Availability of student records

EDUCATIONAL BOARD OF EXAMINERS, Practitioners license

ETHICS AND CAMPAIGN DISCLOSURE BOARD, Use of public property for campaign purposes

HUMAN SERVICES DEPARTMENT, Empowerment areas

HUMAN SERVICES DEPARTMENT, Emergency filings

HUMAN SERVICES DEPARTMENT, Surety requirements for home health agencies

INSURANCE DIVISION, Internet advertising

NATURAL RESOURCES COMMISSION, Deer seasons

NATURAL RESOURCES COMMISSION, Use of motor vehicles by handicapped

NATURAL RESOURCES COMMISSION, Local recreation infrastructure grants

PUBLIC HEALTH DEPARTMENT, Healthy Families Iowa

PUBLIC HEALTH DEPARTMENT, Renal dialysis

RACING AND GAMING COMMISSION, Gambling limitations

TRANSPORTATION DEPARTMENT, Scenic byways designation

The Department proposes a general re-write of its regulations concerning feed and pet food; these provisions are similar to those currently in place. Particular detail is provided for animal feed standards.

Chapter 41 is basically a truth-in-advertising law for animal feed. The label must clearly indicate the intended use and set out the minimum guaranteed content for the nutrients contained in the product; all based on the type of animal being fed. The content must be expressed as a percentage, or, in the case of vitamins, antibiotics or other additives, expressed in the customary unit for that substance. Similar rules are proposed in Chapter 42 for pet foods.

This topic involves the limitation placed on school officials in sharing information about a particular student, without first getting parental consent or a court order; a common problem faced by education officials when dealing with disruptive or troubled students. At issue is the inability to share information with juvenile justice agencies, law enforcement agencies and the Human Services Department without first instituting some sort of legal action. As discussed in Iowa Association of School Boards, Policy Primer: A Guide to Current Policy Issues, Vol. 10 No. 7 (September 2, 1997), confidentiality is strictly regulated by federal law: The Family Educational Rights and Privacy Act (FERPA).

Without a court order or parental consent, school officials are largely unable to share student information, even when needed to provide needed counseling or other social services to that student. The practical problem is that most school officials would rather avoid the criminal or juvenile justice system in handling student problems; but unless the system is involved, it is extremely difficult to share information.

Iowa law mirrors the federal restrictions, Iowa Code §280.25 provides in part that schools must adopt a policy allowing the school to share information contained in a student's permanent [cumulative intended] record under agreement with agencies that are part of the juvenile justice system including:

• the juvenile court,
• the department of human services,
• and local law enforcement authorities.

The disclosure of information must be directly related to the juvenile justice system's ability to effectively serve, prior to adjudication, the student whose records are being released.

The board completes action on a February proposal which re-writes the rules relating to the general teaching license. This new chapter defines the basic framework for Iowa practitioner licensure setting out the basic requirements and procedures for the issuance of all practitioners' licenses. These requirements include the type of licenses to be issued, including new licenses, the basic requirements and terms for each license, the new professional education core requirements, the human relations requirement, and the fee for the issuance of each type of license. The rules are similar to those currently in place. Seven licenses are available:

• An initial license is valid for two years and is available to an applicant with a four year college degree from an approved institution;
• A continuing license is valid for five years and is available to a teacher who has two years experience or has completed an approved induction program;
• An advanced license is valid for eight years and is available to a teacher with seven years of experience and an advanced degree;
• An administrator's license is available to a person with five years experience as a teacher and the administrator's endorsement;
• A conditional license is valid for one or two year2 and is available to a person who has not yet completed all the necessary steps for a continuing license;

A substitute license is available to anyone holding a license or who held a license. This allows teaching up to ninety days per year.

Iowa Code section 56.12A prohibits the use of public funds for political purposes. This statutory language was enacted almost ten years ago, in response to a local option tax election where a unit of local government actively campaigned for the issue. Concerns were raised over the propriety of using tax dollars for political advocacy, and thus this provision was enacted into law. Over the years the board has, on a case-by-case basis, issued opinions interpreting the impact of this provision in various fact situations. These proposed rules set out those interpretations in rule form. The language of the rules themselves is in part modeled after portions of Washington state law and portions of the federal Hatch Act. Technically, the principles embodied in the proposal are in effect now, as agency "common law"; however, the rules will make these policies more available and give them the "force and effect of law".

Under Iowa law state and local government cannot expend or permit the expenditure or use of public resources, including public moneys or public facilities, directly or indirectly, for political purposes, including supporting or opposing a ballot issue. As provided in the rules this prohibition includes "knowing acquiescence", defined as implied or express consent or acceptance by a supervisor of a public employee using public resources for political purposes. Things covered by this rule include:

• use of stationery, postage, machines, and equipment,
• use of public employees during working hours,
• vehicles, office space, publications of an agency,
• clientele lists of persons served by the agency,
• all public moneys.
• e rules also specify activities that a public employee or official must avoid. Generally a public employee or official cannot take an active part in political management, campaigns, or other political activities:
• While the public employee is on duty,
• in any room or building occupied in the discharge of official duties by an individual employed by or holding office in the state or a political subdivision of the state,
• while wearing a uniform or official insignia or seal identifying the office or position of the public employee or public official,
• by using the official insignia or seal identifying the office or position on political material. However, the official or employee may identify the office or position held,
• while using any vehicle owned or leased by the state or local government, unless the political purpose is incidental to the public purpose, and the state or political subdivision is promptly reimbursed for costs arising from the political purpose.

These proposals do not limit the freedom of speech of public employees or public officials concerning activities that do not involve the use of public resources; they do not prohibit the state or local government from expressing an opinion on a ballot issue by adopting a resolution or proclamation. Additionally, the rules do not apply to:

• a statement by a public official in support of or in opposition to any ballot issue or with regard to a candidate for elective office at an open press conference,
• a response to a specific verbal inquiry at an open press conference,
• incidental remarks concerning a ballot issue or candidacy in an official communication,
• comments on a ballot issue or candidacy without an actual, measurable expenditure of public funds,
• activities that are part of the normal, regular and official conduct of the office or agency,
• very minor use of public facilities by public officials or public employees,
• activities which take place in those portions of public facilities which are designated as the personal residence of a public official or public employee,
• use of those portions of public facilities which are available and accessible for similar activities by members of the general public,
• gathering, preparing, or distributing information concerning a pending ballot issue, where the information does not constitute express advocacy.

Rules should solve problems or clarify issues. The problem posed by this filing is the uncertainty posed by some of the provisions--in some cases these rules raise as many questions as they answer. For example: A government vehicle cannot be used for a political purpose, unless the political purpose was "incidental" to the lawful public purpose--what standard will measure what activity is merely incidental? What happens to government officials who are issued a car as part of their salary package {e.g.: school superintendents}--are they prohibited from driving that vehicle to a political rally? Another is the "de minimis" exception that applies to "incidental" activities that may relate to an official's or employee's constitutional or statutory duties_.what if those duties are not detailed in the constitution or statute? The rules ban "activities for political purposes" on government time and using government property. Iowa Code §56.2 defines "political purpose" as the support or opposition of a candidate or ballot issue. What happens if a government employee or official uses public information, gleaned from his or her work, for a political purpose on weekend--is this improper use of government property? The point of these examples is that many questions are answered by the rules, but many questions are generated as well. Additional detail and examples should be added when they are adopted in final form.

Senate File 2406 has created a new government agency and program. The Iowa Empowerment Board is a free standing agency which will oversee the operation of local empowerment areas. The self-stated purpose of the Act is to create a statewide system of community empowerment areas, with an initial emphasis to improve the well-being of families with young children. As part of this goal, the program aims to reduce duplicative bureaucratic requirements that are barriers to community efforts to improve the efficiency and effectiveness of local education, health, and human services programs.

The department now proposes rules to implement this mandate. These rules define and structure the Department's child care funding for these local areas; $3,800,000 has been appropriated for this purpose. The rules warn that:

"Total funding available in each state fiscal year shall be the amount set pursuant to enacted legislative appropriations, less any other obligations that the legislation creates. Funding shall be further subject to federal funding actions which reduce or eliminate the availability of this funding."

This language should be carefully reviewed. The issue is whether a cut in the federal TANF block grant automatically triggers a cut in this particular program of whether the Department has discretion in apportioning the effect of that cut.

Funds are provided to community empowerment areas receiving a school-ready children grant under the Act, in order to develop and improve local child care capacity to better enable low-income parents to obtain or retain employment. These rules establish conditions and procedures for the disbursement, use, and administration of funds. This grants program is administered by the Department in conjunction with the Iowa Empowerment Board.

Funds can be used only for enhancing quality child care capacity in support of parent capability to obtain or retain employment; with a primary emphasis on low-income families with children from birth to age five. Eligible activities include:

• Developing capacity for regular child care, sick child care, night shift child care, and emergency child care.
• Enhancing linkages between the Head Start program, the Early Head Start program, early childhood development programs, and child care assistance programs.
• Implementing other strategies that enhance access to child care.

An area's maximum eligible funding is the percentage of the total equal to the area's percentage of average monthly statewide family investment program cases in the preceding state fiscal year.

Each year the Department emergency implements a number of filings using a special grant of emergency rulemaking power; this issue contains eight such filings. These rules were informally reviewed by the committee at its June meeting, with no action taken at that time. These filings make a number of (hopefully) non-controversial changes:

• ARC 8123A amends the authorization process for Rehabilitative Treatment and Supportive Services. Although substantive, the changes appear non-controversial.
• ARC 8119A amends the Family Investment Program, food stamp, Medicaid, and child support provisions by expanding some benefits.
• ARC 8114A makes a number of changes to the Medicaid program mandated by legislature; these changes increase a number of provider rates.
• ARC 8111A removes the requirement that an individual must have previously resided in a nursing facility or an intermediate care facility for persons with mental retardation (ICF/MR) in order to receive supported employment services under the home- and community-based waivers for persons with mental retardation or a brain injury.
• ARC 8107A lowers the percentage withheld for a child support delinquency from 50 percent of the current support obligation to 20 percent.
• ARC 8103A raises financial eligibility for child day care services from 125 to 140 percent of the federal poverty guidelines and update income guidelines based on the federal poverty guidelines for 1998.
• ARC 8101A implements revisions in purchase of service reimbursement rates mandated by the legislature, increasing the maximum daily reimbursement rate for shelter care; adoption and independent living; and the rates for adult residential, sheltered work, and work activity.
• ARC 8099A implements several changes relating to foster care rates; budgets for group homes and the highly structured juvenile program; group care expenditures and court services.

The Department emergency implements federal requirements which mandate that home health agencies manintain a surety bond for either $50,000 or 15% of the agency's Medicaid payments. The bond must provide for payment to the Department, up to the face value of the bond, for any overpayment to the agency, including interest.

The division proposes restrictions on stock brokers who advertise via the internet. This is the division's second run at this issue; an earlier notice was published in September, 1997. The issue is to determine at what point a "cyber-broker" is actually transacting business in Iowa, thus requiring the broker to be registered in this state. This is a nation-wide problem with many states proposing similar regulations. For example, the following add was downloaded from the World Wide Web: (graphic not available)

Under the proposed rules such an advertisement would remain lawful if the ad contains a disclaimer noting that the broker-dealer can transact business in Iowa only when properly registered or exempted; and, the internet advertisement has a "firewall" or other procedure to ensure that an un-registered person cannot complete a transaction; and the ad itself simply provides information on products and services.

This provision should not be particularly troublesome. Many larger brokerage firms currently have similar procedures already in place; and many brokers, dealing only in securities listed with a market {Dow Jones, Nasdaq, etc.} are exempted from registration. Enforcement will be largely through complaint, but it is possible that department representatives may periodically scan the internet for compliance.

The Commission implements its annual update of Iowa's deer hunting seasons. The first of these two filings 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 8088A 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).

Generally motor vehicles are prohibited on state parks, recreation areas and preserves except on constructed and designated roads, lots and campgrounds. However, the Commission proposes that persons with physical disabilities may use certain motor vehicles on state parks, recreation areas and preserves, to accord them fair access to these areas. The rules define a disability as a: "paraplegic or quadriplegic, with paralysis or a physical condition of the lower half of the body with the involvement of both legs, usually due to disease or injury to the spinal cord; a person who is a single or double amputee of the legs; or a person with any other physical affliction which makes it impossible to ambulate successfully in park or recreation area natural surroundings without the use of a motorized conveyance."

This proposal does not include the use of automobiles; instead it authorizes the use of small-engined vehicles with a total dry weight of less than 1,450 pounds. Each person with a physical disability must have a permit issued by the director in order to use motor vehicles on state parks, recreation areas, and preserves. Such permits will be issued without charge. Applicants must submit certificates from their doctors stating that the applicants meet the criteria describing a person with physical disabilities. One nonhandicapped companion is permitted.

Each park ranger or technician will determine which areas or portions of areas will not be open to use by permittees, in order to protect the permittee from hazards or to protect certain natural resources of the area. The park ranger or technician may assist by arranging access to the areas within their jurisdiction and by designating specific sites or trails on the area where the motor vehicle may be used and where it may not be used. The park ranger or technician will provide a map of the park or recreation area showing sites where use is permitted.

The recreation infrastructure grants program provides state cost sharing to local governments and associations for the restoration or construction of recreational complexes or facilities. Grants are available to local political subdivisions of the state and to any other established organization or association which is responsible for construction, maintenance and operation of public recreation complexes and facilities.

Grants under this program are directed toward "vertical infrastructure"; defined in Iowa Code §8.57(5c) as including only land acquisition and construction, major renovation and major repair of buildings, all adjacent structures, utilities, site developments, and recreational trails. Grants to any individual project must be at least $2500 and cannot exceed $100,000, with a 2:1 local match. Up to 50 percent of the local share may be a "soft match" in the form of donated labor, materials or land value.

The review and rating committee will apply specified criteria, with a weight factor; each criterion is given a score from 1 to 10, which is then multiplied by the weight factor. The criteria and weight include:

1. Public demand or need--2.
2. Quality of site or project--3.
3. Urgency of proposed project--2.
4. Multiple benefits provided--2.
5. Relationship to statewide plans/priorities--2.
6. Conformance with local/regional plans--2.
7. Economic benefits to local economies--1.
8. Geographic distribution--1.

These rules propose standards for providing services to families and children during the prenatal through preschool years. The proposed amendment has been prompted by Iowa Code Supplement section 135.106, which mandates the following goals for this program:

• Promote optimal child health and development.
• Improve family coping skills and functioning.
• Promote positive parenting skills and intrafamilial interaction.
• Prevent child abuse and neglect and infant mortality and morbidity.

The program is developed by the Department and is implemented by contracting with a nonprofit child abuse prevention organization, local nonprofit certified home health program or other local nonprofit organizations. Under the proposed rules persons residing in an approved service area in Iowa who are pregnant or who have a child under the age of 60 days, and who are determined to be at risk according to program guidelines, are eligible to be participants in the project. It should be noted these "program guidelines" do not appear in the rules at this point. These guidelines should be added to this filing before completion of this rulemaking.

The Department proposes a re-write of one of the oldest continuously operating assistance programs--renal disease financial assistance. This is one of the few programs not exclusively targeted at the poor. It attempts to prevent poverty by helping Iowans of moderate means meet the high cost of renal dialysis. This program is a payor of last resort---available only when other resources are exhausted. In addition to dialysis and transplants, the program will pay for:

• Pharmaceuticals. Take-home prescription and nonprescription drugs and other related medical supplies ordered by a physician: generic drug only, except as specifically ordered by the physician.
• Travel. To and from a Medicare-approved facility for outpatient dialysis, three months of home dialysis training, transplantation and the three months of post-transplant care following the date of discharge. Cost is calculated at 10 cents per mile.
• Health insurance and Medicare. Premiums for health insurance policies and enrollment fees for health maintenance organization contracts.

Eligibility is based on the income and resources of the applicant. The value of a home and a car, plus the $100,000 of the value of a farm or business are excluded from resources. A client whose income and resources are within 200% of the federal poverty guideline is eligible for the maximum reimbursement rate. An applicant in excess of that amount up to 250% of the poverty level is eligible for 50% of the maximum rate.

At its May meeting the Racing and Gaming Commission gave initial approval to three proposed rules changes.

• The first change would prohibit the location of automatic teller machines on a gambling boat or within a racetrack enclosure.
• The second change would limit gambling licenses to one horse track license in Polk County, one dog track license in Pottawattamie County, one dog track license in Dubuque County and no more than ten excursion boat licenses, restricted to the counties where boats were operational on May 1st, 1998.
• The third change would freeze any expansion of slot machines. These provisions are in essence extracted from Senate File 2320, legislation that was passed by the House and Senate, but vetoed by the Governor.

This notice of intended action is the beginning of a process that will last until at least September. The Commission will be holding a hearing on this proposal on July 7th. The Administrative Rules Review Committee will conduct the first of two reviews on either July 14th. The Commission may adopt this rule in final form no earlier than July 22nd, with the earliest effective date being September 16th, 1988, if every deadline is met. More likely would be a September 30th or October 14th date.

The issue presented in this notice is whether the commission has statutory authority for these limitations. The authority of the Commission to regulate gambling more generally is set out in Iowa Code §99F.4; where twenty-one sections delegate a variety of specific powers to the Commission. The Commission is also empowered to impose a variety of terms and conditions on each individual license pursuant to Iowa Code §99F.7.

The issue is complicated by the fact these limitations were part of proposed legislation--Senate File 2320, which was vetoed by the Governor In May. Shortly following, the Commission gave initial approval to this notice, which contains portions of that failed legislation.

The purpose of the Iowa Scenic Byway Program is to designate qualifying Iowa roads as scenic byways. Under the program, proposed routes are identified via an application process. An application must be supported by each city and county through which a route passes. The Department inventories and evaluates the proposed routes while an advisory council selects the routes to be designated. The Department designates the routes as scenic byways and provides identifying signs. Routes include primary and secondary roads, along with city streets. Routes can be either naturally scenic or have historical significance. Scenic routes should be at least 20 miles long.

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