ADMINISTRATIVE RULES REVIEW COMMITTEE Rules Digest -- December 1998 Scheduled for committee review - January 5, 1999 - Room #116 For further information, please contact Joe Royce, Legal Counsel, Administrative Rules Review Committee

HIGHLIGHTS IN THIS ISSUE:

EMERGENCY MANAGEMENT DIVISION Enhanced 911 telephone systems

ECONOMIC DEVELOPMENT DEPARTMENT School to career

EDUCATION DEPARTMENT School to career

HUMAN SERVICES DEPARTMENT Food stamps for aliens

HUMAN SERVICES DEPARTMENT Medicaid payments for male impotence drugs

LABOR SERVICES DIVISION IOSH revisions

NATURAL RESOURCES DEPARTMENT {E.P.C.} Feedlot regulation

PROFESSIONAL LICENSING DIVISION Proof of legal presence

TRANSPORTATION DEPARTMENT Driver's education instructors

The Division is rescinding current rules and adopting a new chapter relating to enhanced 911 service, they implement Senate File 530, which provides for the establishment of an enhanced wireless 911 service and surcharge. An E911 surcharge will be added to each wireless service in this state, up to fifty cents per month. Income from this charge will be deposited with the State Treasurer, for use in meeting the costs of E911 wireless service.

Three issues arose from this filing, all presented by local E-911 service providers. The first issue involved the 50 cent per month surcharge for wireless E-911 service. Under this Act the wireless service providers had first access to the revenue to compensate them for the cost incurred under this program. Local providers feared no revenue would remain to meet their needs. Division representatives responded that until the system was actually function no funds would be disbursed to providers, meaning that until that time local E-911 providers could be reimbursed for costs incurred to prepare for wireless service. The second is was the use of automatic security service dialing machines which tie up E-911 lines. The division questioned whether it had authority to preclude the use of these devises, suggesting that perhaps the Utility Division should regulate in this area. The third issue was an allegation that the division might choose to take over management of the entire E-911 system. Division representatives responded that had neither the ability or intent to usurp local control.

Committee members requested that all concerned parties meet over the next thirty days and resolve these issues. Division representatives were confident that compromises could be reached by January.

This filing implements Senate File 2296; it was initially reviewed in October, without adverse comment. The Certified School to Career Program is designed to provide a workplace context for classroom training at the post-secondary level by bringing educators and employers together to design an educational program that includes classroom training that is reinforced with on-the-job training; resulting in a diploma, associate's degree, or other credential and utilizing paid work site internships in partnership with an employer to prepare students for specific employment. Additionally, the program assists participants in determining a career field, and financing post-secondary education.

The language describes eligibility requirements, sets minimum agreement terms, establishes procedures for accessing funds, and explains how participating businesses can claim the payroll expenditure refund, which is authorized by the statute.

Under this program the student, the educational institution and the employer enter into an agreement The employer provides a mentor for the student and agrees to pay a base wage. The employer also agrees to provide paid employment, at a base wage, for the participant during the summer months after the participant's junior and senior years in high school and after the participant's first year of post-secondary education. The participant and employer set minimum academic standards that must be maintained through the participant's secondary and postsecondary education.

The base wage paid to the participant for hours worked is at least the minimum wage prescribed by law. The program adds an additional sum to be held in trust and applied toward the student's education required for completion of the certified program. This sum must be sufficient to provide payment of tuition expenses toward completion of not more than two academic years of the required postsecondary education component of the certified program at an Iowa community college or an Iowa public or private college or university. The student must agree to work for the employer for at least two years following the completion of the participant's post-secondary education as required by the certified program.

These rules complement similar provisions adopted by the Department of Economic Development. This particular set deals with the approval process for the program itself. To be approved a district program must show:

• A two-year secondary program combined with a post-secondary program of at least one year in the career field.
• Participation of a public or private secondary school, post-secondary institution, and one or more employers.
• An identified need for the program.
• A description of skills and knowledge needed for entry into the career field.
• A description of the courses and their length.
• A description of program evaluation component.
• Evidence of instruction in health and safety related to the career field.
• A description of the recruitment strategies that will encourage full participation.
• A description of the supportive services offered.

The department completes action on a filing that was initially emergency-implemented in November. The amendment restores food stamps to certain aliens earlier denied coverage. Under this change eligibility is not time-limited for the following groups:

• Aliens lawfully residing in the United States who were members of a Hmong or Highland Lao tribe, or their families, assisting the United States during the Vietnam War.
• Canadian Indians who have treaty rights to cross the U.S. borders into Canada and Mexico.
• Legal immigrants who were 65 years of age or older on August 22, 1996, or are under 18 years of age, or are receiving payments or assistance for blindness or disability.

Eligibility for the following groups is extended from five to seven years:

• Refugees.
• Asylees.
• Aliens whose deportation has been withheld.

Lastly, eligibility is limited to seven years for the following groups:

• Aliens whose deportation has been withheld under Section 241(b)(3) of the INA.
• Cubans and Haitians.
• Amerasian immigrants.

Euphemistically referred to as "quality of life drugs" the department will provide Medicaid funding for so-called "male-impotence" drugs {e.g.: Viagra}. Prior approval will be required, based on a physicians documentation of a need for the drug. Following approval and the appropriate physician's diagnosis, payment will be allowed for four doses in a thirty day period.

The division proposes an assortment of additions to the state administration of the OSHA program. One proposal sets out the process the division will use to verify that cited hazards have been abated. Within 10 days of the date set out in the initial citation the employer must certify that the hazard has been abated. If the violation is serious or deliberate the certification must also include proof that abatement has occurred. If abatement requires more than 90 days to complete a plan outlining the necessary steps must be filed and progress reports must be submitted.

The amendments also create a special policy for rescue activities. This had been an issue since the Terra Chemical explosion, when a volunteer firefighting unit was cited for violations during the initial response effort. The new policy limits the issuance of citations in rescue efforts where an individual is in imminent danger, as long as the employer has provided the appropriate training and equipment.

House File 2494 has established new requirements for livestock operations, necessitating a number of changes in the EPC's rules set out in chapter 65. In drafting these rules the division worked with the Animal Agriculture Consulting Organization {AACO}. The division and AACO did not fully agree on new language, thus the notice at times sets out alternative language. The 1998 legislation has made numerous changes in the permitting process:

• A county is prohibited from regulating feeding operations unless the regulation is expressly authorized by state law. County legislation adopted in violation of this section is void.
• Habitual violators may not receive permits and existing permits may be revoked as warranted. The restrictions apply for five years.
• Complaints may be filed either with the division or the county board of supervisors. This provision is implemented in rule 65.10. The AACO recommendation differs significantly in the area of county investigations, suggesting a more limited role for the county and different investigation procedures in general. The most significant difference is that the ACCO version would require access by inspectors only after the agency obtains a judicial search warrant.
• Greater separation distances are created for new construction.
• The commission is required to adopt rules relating to the construction, including expansion, or operation of feeding operations and structures. The requirements include minimum manure control, the issuance of permits, and departmental investigations, inspections, and testing. The division and ACCO versions differ somewhat on the issue of revocations and refusals to renew. The division would simply determine whether the operation constitutes a clear, present and impending danger to the public, while the ACCO version would tie these disciplinary actions more closely to situations where the permit holder is a habitual violator in addition to the public danger.
• The county board of supervisors is entitled to comment on any permit application and may contest the division decision. It should be noted this action is not a contested case, either under the statute or the rules--that determination is left to the EPC. This means that the EPC does not have to support its decision by evidence "on the record"; nor is there any right to an unbiased decision-maker.
• The division is required to approve all manure management plans prior to implementation.
• The division is required to adopt requirements for manure applicator certification, including educational program requirements. These new requirements appear in 65.19. An examination must be passed and a $50 certification fee paid, which will be good for three years. Farmers and their employees are generally exempted from this requirement.
• The division is required to adopt rules establishing certification standards for the handling, application, and storage of manure, the potential effects of manure upon surface water and groundwater, and procedures to remediate the potential effects on surface water or groundwater.
• The division is required to adopt rules governing the application of manure. The rules shall establish application rates and practices to minimize groundwater or surface water pollution resulting from application. The rules shall establish different application rates and practices based on the water holding capacity of the soil. The rules implementing this provision appear in 65.16 and .17. With the exception of small feeding operations, all operations must file such a plan with the department.
• The division must adopt engineering standards for the construction of manure storage structures.

Pursuant to federal law 8 USC §1621 an illegal alien is not eligible for any state or local public "benefit". This term includes any grant, contract, loan, professional license, or commercial license provided by an agency of a state or local government or by appropriated funds of a state or local government. For this reason the division has developed "boilerplate" language applicable to all the commercial boards under the division's jurisdiction. Similar language should be developed by other state entities that great professional or occupational licenses. In essence the rules require applicants to submit proof of citizenship or lawful residence.

At issue in this filing are qualification standards adopted by the department for "behind-the-wheel" instructors, providing instruction for only that segment of drivers education consisting of actual on-street driving. The issue involves a conflict within House File 2528. Section two of the Act defines "laboratory" as including street or highway driving; that section goes on to state that:

"To be qualified as a classroom or laboratory driver education instructor, a person shall have satisfied the educational requirements for a teaching license at the elementary or secondary level and hold a valid license to teach driver education in the public schools of this state."

Further down, section two of the Act ALSO states:

"Street or highway driving instruction may be provided by a person qualified as a classroom driver education instructor or a person certified by the department of transportation. The department of transportation shall adopt rules pursuant to chapter 17A to provide for certification of persons qualified to provide street or highway driving instruction and for administering requested field tests."

Pursuant to this second provision, the Department of Transportation has adopted standards for behind-the-wheel instructors far less rigorous than those imposed by the Department of Education. Certified drivers education teachers vigorously oppose this rule, contending it violates the statutory requirements set out in section two of the Act. Transportation representatives vigorously defend their program stating the program is specifically authorized by section two of the Act, by approving teaching assistants for handling only on-road instruction.

The committee voted a seventy day delay on this specific provision requesting the parties to meet privately and attempt to resolve this statutory inconsistency. Unfortunately no private resolution to this issue exists. Section two of the Act is in direct conflict with itself, making a compromise impossible--the statute reads one way or the other, there is no intermediate interpretation. For this reason the Committee might consider a General Referral to the legislature `with a recommendation that the statute be clarified.

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