ADMINISTRATIVE RULES REVIEW COMMITTEE Rules Digest -- February 1999 Scheduled for committee review - March 8, 1999 - Room #22 For further information, please contact Joe Royce, Legal Counsel, Administrative Rules Review Committee

HIGHLIGHTS IN THIS ISSUE:

CHIROPRACTIC BOARD Definitions of Chiropractic terms

COSMETOLOGY BOARD Elimination of practical examination

DEPARTMENT OF ECONOMIC DEVELOPMENT Use of Social Security numbers

DEPARTMENT OF GENERAL SERVICES Newspaper publication

HUMAN SERVICES DEPARTMENT Physical disability waiver

HUMAN SERVICES DEPARTMENT Personal assistance program

PUBLIC HEALTH DEPARTMENT Perinatal health care

PUBLIC HEALTH DEPARTMENT Trauma education

LABOR SERVICES DIVISION IOSH revisions

DEPARTMENT OF REVENUE Property tax on condominiums

The board proposes to define in rule several aspects of the chiropractic profession. These terms include "adjustment/manipulation", "chiropractic physiotherapy" and "differential diagnosis". These terms are set out in the chiropractic licensing provisions {see: Iowa Code 151.1}, but no statutory definition has been provided for those terms. The filing also makes minor changes to the licensing procedures and requirements of the board. The definition for physiotherapy is controversial because it is similar to the statutory definition of the licensed practice of physical therapy, as set out in 148A.1. The lack of a statutory definition for chiropractic physiotherapy clearly implies the authority to define the term by rule, but the issue is whether this definition encroaches on the practice of physical therapy.

The board proposes to eliminate that portion of the cosmetology examination that actually involves a demonstration of skills. While the statute authorizes both a written and a practical examination, the board has the authority to decide what type of exam it will offer. This proposal means that applicants for licensure must pass, by 75%, a written test on theory and on Iowa law. Opponents are concerned this change will allow the licensure of applicants who are knowledgeable in theory, but inept in actual practice. Additionally, concern has been expressed this change could be the first step to the de-licensure of the profession. The board responds that passage of the practical exam has always been a virtual certainty, thus the test serves little real purpose in determining the actual competence of the applicant.

These new rules describe the information DED is required to submit to Workforce Development for its accountability system. DED is required to compile information concerning individuals trained under various programs. The rules provide for the use of social security numbers to access the required information. A question has arisen concerning the legality of using this information. Section 7 of the federal Privacy Act of 1974 states in part:

It shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit or privilege provided by law because of such individual's refusal to disclose his social security account number.
* * * (b) Any Federal, State or local government agency which requests an individual to disclose his social security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited and what uses will be made of it.

The department promises that efforts will be taken to ensure that the confidentiality of individual social security numbers is safeguarded and that aggregate information will be used for reporting purposes whenever possible rather than using individual social security numbers.

Iowa Code section 618.11 requires the superintendent of printing to annually review the allowable fees for newspapers publishing official publications. Earlier, in an emergency filed rule the superintendent set the 1999 rate at 31 cents per line for the first publication, 21 cents for subsequent publications. For 2000 the rate is set at 33 cents and 31 cents respectively.

The department now completes a "normal" rulemaking to supplant that initial emergency filing. An economic impact statement was requested in September, in lieu of the analysis otherwise required under the State Mandates Act, §25B.6. Representatives from Iowa's school districts and counties have contended that a twelve percent increase over two years was excessive. In that impact statement the department noted that while there is a fiscal impact on local governments the established fees provided a significant discount to local government from publication rates charged private entities.

This waiver is available to persons with a physical disability who currently reside in a medical institution and who have been residents of a medical institution for a minimum of 30 days. To be eligible the applicant must:

• Have a physical disability;
• Be blind or disabled;
• Be ineligible for the HCBS MR waiver;Have the ability to hire, supervise, and fire the provider as determined by the service worker and be willing to do so or have a guardian;
• Be eligible for Medicaid; and be aged 18 years to 64 years;
• Use a minimum of one unit of consumer-directed attendant care service or personal emergency response system service each quarter.

Services available on this waiver include consumer-directed attendant care, home and vehicle modification, personal emergency response system, specialized medical equipment, and transportation.The total cost of physical disability waiver services provided to a recipient shall not exceed $1,150 per month. Services range from non-skilled personal care and hygiene services up to some medical care provided under the supervision of a health care professional.

Some equipment needs are met by the program. This includes the modification of a home or auto for accessibility and some in-home medical equipment.

These rules continue a pilot project first instituted in 1996 in three Iowa counties. Under this pilot disabled clients may hire personal assistance services: non-medical housekeeping and personal hygiene services not traditionally part of the human services program. The client is responsible for hiring and instructing the care provider. Persons with a mental or physical disability are eligible if that disability limits their ability to perform these types of activities; the income level is set at $40,000.

Payments under the program range from $200 to $1,000 per month, depending on the level of care needed by the person. Specific tasks are listed under the broad categories of personal care, household maintenance, and community living support. Personal care tasks are given twice the weight of household maintenance and community living tasks. Each task is also given a weight of 1, 2, or 3, depending on whether the support needed for the task is minimal, moderate, or intensive. The total score determines the payment level the applicant is eligible to receive as follows:

In 1998 the Legislature has appropriated some $364,000 for this program, serving some 47 people in three counties.

This filing implements 1998 Iowa Acts, Chapter 1221 by creating a voluntary regionalized system of perinatal health care. The system is intended to help practitioners in rural Iowa rapidly access specialty services for their patients even though such services may not exist in the local, rural community. Hospitals within the state may choose to participate in Iowa's perinatal health care system and select their level of participation in the regionalized system. The primary purpose of designation is to ensure Iowa perinatal patients appropriate care as close to their homes as possible.

A hospital wishing to participate in the regionalized system must comply with the rules appropriate to the level of participation selected by the hospital. The rules describe the levels of care among Iowa perinatal hospitals. The levels: Level I hospital, Level II hospital, Level II regional center, and Level III center. The rules are designed to encourage and support the presence of a Level II regional center in areas not populous enough to support a Level III center.

The primary purpose of these designations is to provide Iowa perinatal patients appropriate care as close to their homes as possible. Also these rules ensure that when a hospital markets itself at a particular level of perinatal care, it is capable of providing that care. The rules provide the framework to be used in defining and evaluating the level of perinatal services being offered. The various levels provide the following functions:

Level I hospitals provide basic inpatient care for pregnant women and newborns without complications; manage perinatal emergencies, including neonatal resuscitation and c-sections; provide early risk identification; seek consultation or referral for high-risk patients; and provide public and professional education.

Level II hospitals provide the same care and services as Level I hospitals plus they provide management of certain high-risk pregnancies and services for newborns with selected complications. These hospitals deliver approximately 500 or more babies annually and have an obstetrician and pediatrician on staff. The perinatal unit is under the co-direction of a pediatrician and an obstetrician.

Level II regional centers have a developed neonatal intensive care unit (NICU). The obstetric service in a Level II regional center provides services for maternity patients at higher risk than those in Level II hospitals because of the presence of an NICU.

Level III centers provide the same care and services as Level II regional centers, plus they manage most high-risk pregnancies and neonates under 34 weeks gestation. The Level III center is an extension of the Level II regional center and serves the same regional functions. The difference is additional professional staff and more extensive physical facilities. There may be multiple Level III centers in the same city. Level III centers have the same physical facilities as Level II regional centers; however, they have more equipment and serve a more complicated patient population.

The department proposes a detailed series of regulations for physicians, physician assistants, nurses and EMT's who wish to be trauma team members. The initial training period is followed up with period continuing education. Iowa Code §147A.22 creates a state-wide trauma care system; the goal is to coordinate the medical needs of the injured with an integrated system of quality, cost-effective trauma care. The intended result is to reduce the incidences of inadequate trauma care and preventable deaths, minimize human suffering, and decrease the costs associated with preventable mortality and morbidity.

This system as a whole includes the categorization of all hospitals and emergency care facilities as to their capacity to provide trauma care services, based on self-reported information. This is not a guarantee of quality of care. The system also includes a certificate of verification of all categorized facilities from the department at the level selected by each facility. The standards and verification process are established by rule. Verifications are valid for a period of three years and are renewable. The department may conduct periodic on-site reviews of the services and facilities.

The division completes action on 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 fire-fighting 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.

With the completion of an economic impact statement the department has now adopted in final form amendments which detail whether condominiums are to be taxed as residential or commercial real estate. It must be noted that while the rule is now adopted, it is being reviewed, by committee request, in advance of its March 10th publication date. The rule is scheduled to go into effect on April 14th, 1999. Final review of this provision is anticipated for the committee's April meeting.

Under Iowa law apartment buildings are taxed as commercial property, while condominiums are taxed as residential property. The distinction was not particularly important until a residential property tax "rollback" resulted in a commercial rate roughly double that of residential. Developers and apartment owners have recently begun to designate structures as condominiums, while in fact renting the dwelling units with no intention of sale. The rule would end this practice by declaring that a condominium is to be valued as commercial property if over half the units are not sold or being offered for sale. The department estimated that the current number of conversions resulted in a tax shift of some $1.7 million and extrapolated a possible impact of some $53 million if all apartments converted to residential condominiums.

At issue is whether the tax should be determined on a per unit basis or per building. The rule states in part "property should be classified as residential real estate if a majority of the condominiums are or will be used for residential purposes and have been sold, are available for sale or are being rented, but the primary intent of the owner is to sell the units."

Opponents of the rule note that Iowa Code §499B.11(1) specifically states that "All real property taxes and special assessments shall be levied on each apartment and its respective appurtenant fractional share or percentage of the land, general common elements and limited common elements where applicable as such apartments and appurtenances are separately owned, and not on the entire horizontal property regime." Opponents contend this language mandates that the tax be assessed against each individual unit, thus allowing a mixture of residentially and commercially taxed units within one structure. Opponents contend that a condominium is like a subdivision, with each unit being a separate parcel of property. Under this analogy each parcel is assessed according to its use.

The department and assessors contend that the tax is levied against each apartment, but the initial determination whether that tax is residential or commercial is made on a per building basis, with the entire structure classified as commercial or residential. Opponents respond that such a system is arbitrary because it allows a particular parcels designation as residential or commercial property to be determined by neighboring uses.

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Last update: TUE Aug 31 1999
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