ADMINISTRATIVE RULES REVIEW COMMITTEE Rules Digest -- July 1998 Scheduled for committee review - August 11-12, 1998 - Room #19 For further information, please contact Joe Royce, Legal Counsel, Administrative Rules Review Committee

HIGHLIGHTS IN THIS ISSUE:

ATTORNEY GENERAL Forfeited property

CORRECTIONS DEPARTMENT Transportation of criminals

CORRECTIONS DEPARTMENTWednesday-9:45 Sex offender management & treatment

CRIMINAL AND JUVENILE JUSTICE PLANNING Crime prevention grants

ECONOMIC DEVELOPMENT DEPARTMENT CEBA non-entitlement program

EDUCATION DEPARTMENT Community college funding

EMPLOYMENT APPEAL BOARD General re-write

ENVIRONMENTAL PROTECTION DIVISION Waste tire user incentive program

HUMAN SERVICES DEPARTMENT Incentive & efficiency pool funding

HUMAN SERVICES DEPARTMENT HAWK-I board

PUBLIC HEALTH DEPARTMENT Healthy Families Iowa

PUBLIC HEALTH DEPARTMENT Renal dialysis

PUBLIC HEALTH DEPARTMENT Scope of practice review

PUBLIC HEALTH DEPARTMENT Mandatory aids testing

PUBLIC HEALTH DEPARTMENT Funding public health services

PUBLIC SAFETY DEPARTMENT Sex offender registry

PUBLIC SAFETY DEPARTMENT Mobile home hook-ups

DEPARTMENT OF PUBLIC SAFETY Weapons permits

WORKFORCE DEVELOPMENT BOARD Coordinating service provider

WORKFORCE DEVELOPMENT BOARD Welfare to work program

WORKFORCE DEVELOPMENT BOARD Strategic workforce development

Iowa Code Chapter 809A (1997), the Iowa Forfeiture Reform Act, provides for the forfeiture of property that is contraband, proceeds of criminal activity, or used to commit a criminal act. Property is forfeited as a means of removing the profit from crime and as a way of preventing the continued use of property in criminal activity.

Forfeitures are civil actions, separate from any criminal prosecution. Forfeitures may be pursued by the Attorney General or by county attorneys on behalf of the State. When the Iowa District Court orders forfeiture of property to the State, Iowa Code section 809A.17 specifies how the property is to be allocated.

Any person having custody of property forfeited to the State must inform the Attorney General. If the property is not needed as evidence, it is to be delivered to the Department of Justice unless the Attorney General authorizes another form of disposal. Forfeited property may be used by the department in the enforcement of the criminal law. The department may give, sell, or trade property to any other state agency or to any other law enforcement agency within the state if, in the opinion of the attorney general, it will enhance law enforcement within the state.

Iowa Code section 809A.25 requires the Attorney General to promulgate rules for the administration of the chapter. These administrative rules provide guidelines for the destruction, preservation, distribution, and use of property forfeited to the State. A notice of intended action was originally published in March 1997; as a result of public comment the rules were re-noticed in February, 1998 and a number of changes offered in response to that comment. First, subrule 33.2(3) is amended to provide law enforcement agencies greater flexibility in determining what steps are appropriate for the safeguarding of real property seized for forfeiture. Second, proposed subrule 33.5(2) is amended to provide that seizing agencies may retain 90 percent of forfeited cash for their use or for division among law enforcement agencies and prosecutors pursuant to agreement. Amounts over $400,000 will be divided 45% to the seizing agency; 45% to regional agencies and 10% to the department. Third, new rule 61--33.10 clarifies that mortgagees are included within the definition of lien holder, and that lien holders may be appointed to act as agents in disposing of forfeited property.

The rules are intended to insure the consistent use of good maintenance, storage, and record-keeping practices by seizing agencies, and to provide for use of forfeited property that will best enhance law enforcement efforts across the state. Because title to forfeited property vests in the state at the time of the illegal conduct that gives rise to forfeiture, there are significant safety and liability issues related to the handling of property seized for forfeiture. Since the decision to seize for forfeiture is generally made by a local agency, and since the majority of forfeited property is returned to those local agencies for law enforcement purposes, the local agencies assume responsibility for the safeguarding of the property subject to forfeiture.

An agency holding property seized for forfeiture must properly store it and pay any related storage or maintenance cost. Real property poses a special problem for the seizing agency. That agency must accept transfer of title from the department and bear all costs in making the transfer. The local agency must also agree to indemnify the state for all costs and liabilities that might occur during the time the State held title to the property. For example, if a forfeited property turns out to be contaminated with hazardous waste, clean-up becomes the responsibility of the seizing agency. Also, real property must be maintained up to state and local code, including yard maintenance and snow removal.

Automobiles also pose a problem; they must be "stored in a manner which will minimize deterioration." Since the forfeiture order transfers forfeited property to the State of Iowa, a new title first must be issued to the State. The Attorney General then transfers title to the seizing agency. Local agencies pay the department a $100 fee to cover the expenses from the two title transfers. The fee also insures that agencies will not forfeit vehicles with little or no value.

The department will review each item of forfeited property to determine whether it would be useful to the department in statewide law enforcement efforts; it may chose to retain ownership of the property. In the event of an unusually large forfeiture, where proceeds are disproportionate to the enforcement efforts or needs of the seizing agency, the department may reduce the percentage in that particular case. Traditionally, money has been split on a 9010 basis, with the department retaining 10 percent for law enforcement purposes; that tradition is now embodied in the rule. (Some forfeitures proceed through federal court, and seizing agencies generally retain less than 80% in those cases.) The rules also recognize that many local law enforcement agencies have entered into agreements for the sharing of forfeiture proceeds with task force agencies and county attorneys.

Under the rules, if the department does not want the forfeited property for use in the enforcement of the criminal law, the seizing agency must accept the property and either use it or dispose of it pursuant to the guidelines. These provisions are intended to prevent seizures for forfeiture of property that has high maintenance costs and little likelihood of enhancing law enforcement efforts.

In the aftermath of the escape of double murderer Joseph White and five other dangerous criminals, the legislature enacted Senate File 2331 to ensure that criminal transportation personnel employed by private companies are adequately trained. When in compliance with the Act and the rules promulgated by the department these private transportation companies will be exempted from the need to license as private security companies. Under the Act persons providing contractual transportation services cannot have been convicted of:

• A felony.
• A motor vehicle violation punishable as a serious misdemeanor or greater within the last three years.
• Domestic abuse assault.
• A crime involving alcohol or a controlled substance or other drug.

Any person or persons transporting the prisoners must be trained and proficient in the safe use of firearms, must be trained and proficient in appropriate transportation procedures and may only possess and use security and restraint equipment, including any firearms, which has been issued by the contracting entity.

Senate File 2292 requires the department to develop "risk assessment" procedures for sex offenders required to register with the sex offender registry. Senate File 2398 does on to require the department to develop a hormonal therapy program to control deviant sexual behavior. Under these rules the department will perform a risk assessment, developed by public safety, to categorize inmates as high or low risk to re-offend. This assessment must be forwarded to the registry program within 45 days of the anticipated release or placement of the offender.

Hormonal intervention therapy is mandated under some circumstances. Pursuant to Senate File 2398, section 1 anyone who has been convicted of a serious sex offense on a first conviction may be required to undergo hormonal treatment as part of any conditions of release imposed by the court or the board of parole. Upon a second or subsequent conviction, the court or the board of parole shall require the person to undergo the specified treatment.

When recommended the therapy will be instituted as soon as possible after sentencing. The hormonal treatment is part of an overall therapy program that also includes education, counseling and monitoring. The offender will be assessed a "reasonable fee" for the treatment.

The division emergency implements a number of changes mandated by Senate File 2280. A notice of intended action was published in May. The program itself is set out in Iowa Code 232.190 to provide partial funding for local crime prevention programs. The Act requires new matching fund levels that progressively increase as applicants receive a second or subsequent year of consecutive funding through the community grant fund. The rules set those levels at 25% match the first year, 35% the second and 50% for the third year. The division cannot accept an application for a fourth or subsequent consecutive year of funding, except that a number of currently participating cities and counties are grandfathered in through June 30th, 2000.

The non-entitlement program provides housing and job assistance to smaller counties and communities. The rules have been in place for years and are periodically updated. Maximum grants are $1000 per capita and vary from $250,000 for a community less that 1000 to $800,000 for a community under 50,000.

The funds are divided as follows:

• 25% for low & middle income housing;
• 20% for job creation & enhancement;
• Up to $100,000 as an emergency fund;
• 2% plus $100,000 for overhead;
• 1% for technical assistance;
• The remainder to water, sewer and community services.

The CEBA program administers a number of funds, each with its own criteria. The economic development set-aside fund provides in part:

• Only direct loans or forgivable loans to private businesses are provided, for the creation of new jobs or the retention of existing jobs that would otherwise be lost.
• The maximum grant award is $500,000 per application.
• The average starting wage of jobs to be created or retained by a proposed project must meet or exceed 75 percent of the average county wage scale or $7 an hour, unless evidence exists of a negative condition that has the potential to cause severe economic distress on the community.
• At least 51 percent of the permanent jobs must be taken by or first made to persons from low- and moderate-income families.
• Projects must maintain a minimum ratio of one permanent job created or retained for every $10,000 in CDBG funds awarded.
• State funds are necessary to make the proposed project feasible.

The public facilities set aside established similar standards, but goes on to require a 50% match from the applicant. The career link program assists the working poor and underemployed acquire new job skills. Training under this program cannot exceed 12 months--two years for the entire project. Jobs must pay $10 per hour.

The imminent threat fund is available only for unforeseen threats to the public health, safety or welfare. The flood recovery program is reserved to those communities suffering damage from the flood of 1993. It is a program of last resort, providing funding for immediate threats to the public health, safety or welfare, but only when no other source is available.

The Department of Education proposes a distribution plan, commencing July 1, 1999, for state aid funds appropriated to the community colleges. Distribution will be based on a three factor formula: The base year funding level, plus an annual adjustment for inflation, plus proportional share of enrollment. The inflation adjustment will be not less than two percent.

This rule also sets the maximum number of credit hours for an associate degree in either applied science or applied arts--both are set at 86 hours.

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.

In an abrupt turn, House File 2546 halts incentives to waste tire processors and begins incentives to waste tire end users. The fund is designed to provide a 50% match to end users who consume over 250,000 tires per year. A total of $300,000 is available. Funding allocations are made proportionately between eligible end-users in the event that funding requests exceed the total annual amount of moneys available. Moneys shall be available only for waste tires that have been generated from within the state and which are processed by and received from a tire processor located within the state. An end-user with a pending enforcement action is ineligible for consideration of reimbursement for any processed waste tire materials recycled, reused, or consumed for energy recovery while the enforcement action is pending. Recipients are encouraged to use this money to increase the purchase of processed tires.

Senate File 2545, §8 creates an incentive and efficiency fund as part of the states overall efforts to control property tax growth. The fund will make incentive payments to those counties which achieve the desired results and efficiently provide needed services. These "desired results" are established by the state-county management committee on an annual basis; with the goal being to transform the service system to best meet the needs of persons with mental illness, mental retardation, or developmental disabilities in a cost-effective manner. The committee must also identify objective performance measures for the desired results, including:

• rates of service provision among eligible populations,
• access to a range of services,
• movement toward less facility-based services,
• and medical loss ratio.

Moneys shall be distributed from the incentive and efficiency pool to eligible counties based upon a percentage score for the degree of a county's attainment of the desired results and performance measures. The maximum amount which may be distributed to an eligible county is the county's percentage share of the state's general population applied to the amount available for distribution from the pool. The amount actually paid to an eligible county shall be the product of the county's percentage score and the county's maximum amount.

Senate File 2517 created a special board to oversee the Health and Well Kids in Iowa Program. The "HAWK-I" program is designed to improve the health of children and to provide health insurance coverage to eligible children. Health insurance coverage under the program is provided by participating insurers and through qualified child health plans. The department of human services is designated to receive the state and federal funds appropriated or provided for the program, and to submit and maintain the state plan for the program. However, policymaking for the program is vested in this independent board.

Under the Act the board has the policymaking and rulemaking authority for this program, acting in consultation with the department. This authority extends to all aspects of the program, as specified in the Act, including: selection of the administrative contractor managing the program, defining the scope of service, program eligibility, selection of insurance providers, grounds for disqualification.

These adopted rules contain standards for providing services to families and children during the prenatal through preschool years. The filing was 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.

The Department completes action on a re-write of one of the oldest continuously operating assistance programs--renal disease financial assistance. This program is specifically established in Iowa Code §§135.45-.48, and is periodically updated to refine eligibility criteria and reflect changes in appropriations. 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 homestead 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 the June meeting of the Rules Review committee, members requested that the value of the homestead be more narrowly defined, to insure that assets could not be improperly hidden. At that time the filing had already been adopted, thus those changes do not appear in this filing. The requested changes will be adopted later this summer.

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:

• Requests from practitioners seeking to become newly licensed health professionals or to establish their own licensure boards.
• Request from health professionals seeking to expand or narrow the scope of practice of a health profession.
• Unresolved administrative rulemaking disputes between licensure boards.

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 implements a number of 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.

In response to legislation the department re-writes the procedures used to force rapists to be tested for AIDS; obtaining the test requires a court order. House File 2369 has expanded mandatory testing to include alleged rapists as well as convicted ones. Under the Act if the accused has not yet been convicted, the county attorney, if requested by the victim, must make application to the court for the issuance of a search warrant to require the person to submit to an HIV-related test. In support of this application the victim must state that "sufficient contact" occured shown that a significant exposure exists. In addition it must be show that the accused refused to voluntarily provide the sample.

Senate File 2280 provides $11,683,924 for grants to counties for public health nursing, home care aide/chore, and senior health programs. The local board of health and local board of supervisors shall jointly determine which one shall be a contractor for these funds in a single contract beginning July 1, 1998.

A public health nurse is an R.N. who is licensed by the Iowa board of nursing and who has a baccalaureate degree in nursing or related health or human service area (plus a course in community health nursing) or has completed a community health nursing course from a baccalaureate program in an accredited college or university. The primary functions of the public health nurse are to provide "core public health functions":

• Assessment: regular collection, analysis, interpretation, and communication of information about health conditions, risks, and assets in a community.
• Policy: development, implementation, and evaluation of plans and policies, for public health in general and priority health needs in particular, in a manner that incorporates scientific information and community values and in accordance with state public health policy.
• Assurance: ensuring by encouragement, regulation, or direct action that programs and interventions that maintain and improve health are carried out.

One-fourth of the total funds for public health nursing will be divided so that an equal amount is available for use in each county in the state. Three-fourths of the total amount to be allocated will be divided so that the share available for use in each county is proportionate to the number of elderly and low-income persons living in that county in relation to the total number of elderly and low-income persons living in the state.

The home health aide provides a range of housekeeping and personal care services; the rules set out a number of courses the aide must complete prior to service. The appropriation to each county is determined by the following formula. Fifteen percent of the total allocation is divided equally among the counties. Of the remaining 85%: 60% according to the number of elderly persons living in the county, 20% according to the number of persons below the poverty level living in the county, and 20% according to the number of substantiated cases of child abuse in the county.

The senior health program provides health assessments, screenings and education to Older Iowans. The appropriation to each county is determined by the following formula. Each county electing to participate will receive the same base amount. Seventy-five percent of the remaining funds will be allocated based on the percent of the county's population aged 55 and older and the remaining 25 percent based on the percent of county population that is low-income. A local match is required, either in cash or in kind.

Senate File 2292 makes a number of changes in the sex offender registry and the public notification program. Under the Act local criminal or juvenile justice agencies may provide public notification for offenders who have been classified as "at-risk" pursuant to a department assessment. The department or a criminal or juvenile justice agency may also release the offender's name, a photograph, locations frequented by the offender, and relevant Iowa criminal history information from the registry to public and private schools, child day care centers, family day care providers, businesses, and organizations that serve primarily children, women, or vulnerable adults, and neighbors and community groups, or to the public at large. The extent of public disclosure of the information must be rationally related to the following to the risk posed by the individual and the needs of the community.

Iowa Code section 17A.3 requires that all agencies adopt a description of all forms used by the public in dealing with the agency; note this provision does not require the forms themselves to be adopted as administrative rules. In compliance with this mandate the department now updates the description of forms relating to applications to purchase and carry firearms. The forms are controversial because: 1) they require the applicant to agree that the issuing agency may check both the medical and mental history of the applicant. Opponents strongly contend that a person's physical condition has no bearing on this issue and therefore medical records should not be open to inspection. 2) The forms require that the applicant hold harmless from liability the entity who provides those records. Opponents again note that if the custodian of the records properly handles them, no liability can result; but if the custodian improperly releases information, that entity should be held liable for that action.

The law relating to permits to carry and permits to purchase is found in Iowa Code sections 724.10 and 724.15. It must be noted that the criteria for these two types of permits are not identical. Moreover, granting a permit to carry appears to be largely discretionary with the issuing authority, regardless of whether the criteria have been met, while the granting of a permit to purchase appears to be largely automatic once the criteria have been met--Iowa is not a "right to carry" state. Even though the criteria for a permit to carry and a permit to purchase are only roughly similar, broadly speaking they require that the applicant:

• has not been convicted of a felony;
• is not a drug or alcohol addict;
• has not been adjudged mentally incompetent or had a history of mental illness;
• does not have a history of violence.

Clearly law enforcement officials need a mechanism to verify those facts. Even though Iowa Code Chapter 724 does not specifically grant the issuing authority the power to demand confidential information, such authority could be implied by the legitimate need to verify that the criteria have been met.

There does seem to be a fairly easy solution to the remaining concerns: 1) Eliminate all waivers of liability. The custodian of a record should properly be held responsible for the negligent release of information. 2) Allow access only to mental health records and records pertaining to alcohol or substance abuse--eliminate general access to medical records.

Workforce development divides Iowa into a number of regions roughly corresponding to community college areas. A coordinating service provider will be established in each region to manage the workforce development centers, design products and services, and oversee the performance of the workforce development system in that region.

The regional advisory board in each region initiates the formation of the coordinating service provider by convening a meeting of all workforce development service providers and other interested parties. Any interested public and private workforce development organization in the can be members of the coordinating service provider. The coordinating service provider is formed through a 28E agreement, in a format provided by the department. The 28E agreement must be approved by the regional advisory board and the state workforce development board before final execution. Each participating provider must:

• Be an Iowa corporation;
• Have sufficient funds to participate in the coordinating service provider and to satisfy potential liabilities arising from its participation in the agreement;
• Integrate products and services agreed to be offered through the region's workforce development system;
• Use and share customer information through the department's integrated customer service system;
• Accept financial responsibility and liability for its actions related to financial and audit matters, personal injury, property damage, performance outcomes, employment matters, and all other matters arising out of its respective performance in the agreement; and
• Actively participate in the management of the delivery of workforce development services.

The major responsibility for each provider is the workforce development center in each region. The centers provide a one-stop career center within each region, delivering an integrated network of information resources and workforce development services to job seekers, businesses, employees, students, schools and colleges, and the public at large. Each center must provide the following core services:

• Individual career and employment consulting.
• Employment readiness training.
• Occupational skill development.
• Basic skills development.
• Individual income and support services.
• Business employment consulting.
• Employment networking and placement.
• Labor market information services.
• Special assistance with plant closings and layoffs.
• Community workforce consulting.

The department of workforce development was designated by the governor as the department responsible for activities and services under the Welfare-to-Work Program authorized by the Balanced Budget Act of 1997 (P.L. 105-33). Its purpose is to provide temporary assistance which moves welfare recipients into unsubsidized employment providing good career potential for achieving economic self-sufficiency.

In each workforce region, the private industry council and regional advisory board must jointly approve a welfare-to-work proposal designating a local program operator to serve as the grantee to receive and expend welfare-to-work funds. Each operator must provide an "appropriate" match either in cash or in kind. In addition to proposal approval, the private industry council and regional advisory board are jointly responsible for the local oversight of the implementation of the welfare-to-work program. 85% of the funds are allocated based on the following formula:

• the percentage of persons in poverty above 7.5 percent in an area;
• the number of adult recipients of public assistance for 30 months or more in an area;
• and the number of unemployed persons in an area.

The formula must base at least 50 percent of the allocation on the number of persons in poverty. The remaining 15 percent is retained by the department for various projects, as specified in the rules. If an area receives less than $100,000 under the formula, the board may allocate 15 percent of the funds to increase an area's allocation to the $100,000 threshold or deny funds to the area and use the funds allocated to the area for activities authorized for the 15 percent pool.

Eligible activities must be designed with the idea of moving welfare recipients into work first, then providing employment-based activities to allow them to secure and retain unsubsidized employment. These activities include:

• Job readiness activities provided by the program operator or financed through job vouchers or through contracts with public or private providers;
• Training for individuals starting their own businesses;
• Employment activities such as community service programs, work experience programs, job creation through public or private sector employment wage subsidies, on-the-job training, and job placement services;
• Postemployment services including basic educational skills training, occupational skills training, English as a second language, and mentoring;
• Job retention services and support services include transportation, substance abuse treatment, child care assistance, and emergency or short-term housing.

Senate File 2296 appropriated $1.5 for the development and maintenance of a workforce sufficient in size and skill to meet the occupational demands of each workforce development area, and for workforce development programs; each region is required to provide an equal amount of matching funds from local sources. The department must expend over $900,000 on youth workforce programs. Youth conservation corps program moneys is allocated among the regions which have developed a youth conservation corps program. Allocation of funds to each workforce region is based on the population of each region as compared to the state's total population.

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