For the first time in six years the commission re-writes the procedural rules relating to discrimination in housing; the are loosely based on the Iowa Rules of Civil Procedure. New rule 9.6 creates an entire "discovery" procedure -- a formal process to be used to gather testimony and evidence during the investigation of a complaint. When investigating a complaint of alleged discriminatory housing or real estate practices, the commission may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission.

The commission may obtain discovery on any matter, not privileged, which is relevant to the subject matter involved in the pending investigation, whether it relates to the claim or defense of any party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.

In a previous 1998 rulemaking proposal a hygienist could monitor the condition of patients under nitrous oxide, but only when the dentist was in the "immediate vicinity". Hygienists protested this was unworkable and unfair. They noted that the whole point of allowing auxiliary personnel to monitor was to allow the dentist to work elsewhere; they further contended that hygienists, being highly trained, should have greater latitude. In this new version the board requires the dentist to induce the anesthesia but allow the hygienist to monitor and adjust the medication. The dentist must be available for "consultation or treatment".

1998 Iowa Act Chapter 1176 provides that the department adopt rules by July 1, 1999, incorporating accountability for student achievement into the standards and accreditation process. The rules also set out a comprehensive school improvement and accreditation process. Phase I includes monitoring by the department to determine whether the goals of the plan and the accreditation standards are being met. This includes an annual desk audit and a comprehensive site visit, once every five years. Phase II is an investigatory and remedial process which occurs when a district is not taking necessary actions to meet the accreditation standards, or when petitions have been signed by 20% of the district voters or 20% of the families having enrolled students.

Committee members expressed concern over the cost of compliance to the local districts. Department representatives responded that no additional costs would be incurred. They maintained that the required information is already kept, in different form, due to existing federal and state requirements; and that local districts need only reorganize their existing material. Other issues brought to the committee included the elimination of two standards from the exiting rules. These standards required guidance counselors and health programs. In both cases department representatives cited the lack of statutory authority to include these two standards; however, they noted that the lack of an accreditation standard did not preclude these programs if the local district chose to provide them. Two members requested that the Department of Education prepare an informal economic impact statement concerning the costs associated with compliance to the proposed accreditation standards. This informal request meant that the formal publication of the statement is waived. This action was taken to avoid compromising the mandatory July 1st adoption deadline. Members did request that the department postpone its intended adoption of the final rule until after the committees June meeting.

As provided in 1999 legislation the department "emergency" adopts eight filings to ensure speedy implementation. The first filing implements House File 761; under these provisions all child care assistance will be provided through the Child Care Assistance Program. The second filing amends chapter 75 and 76, relating to Medicaid for children. Resources are disregarded and face-to-face interviews are eliminated when considering child eligibility. The third relates to prior approval for prescription drugs. The forth filing raises various reimbursement rates, between 2 and 5%. The fifth filing amends chapters 130 and 150 by centralizing all child care into a single program. The sixth filing contains new purchase-of-services rates for various programs. The seventh filing is a rate increase for foster family homes and adoptive homes. The last filing relates to child care in empowerment areas.

The collection services center has responsibility for the receipt, recording and disbursement of specified support payments within the state of Iowa. The rules in this revised chapter describe the process of transferring support cases or information from the clerks of district court to the collection services center and the policies and procedures used to receive, monitor, and distribute support payments.

The department proposes a complete re-write of the collection process; may of the changes are based on task force recommendations. Under the rules support will be deemed paid when received by the collection center; this will eliminate the need for clerks of court and employers to report the date that support was withheld, saving time and paperwork.

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.

Previous rules required winners to accept annuity payments for larger prizes. Under federal IRS tax law if the recipient had any discretion to choose between an annuity and a lump-sum settlement the IRS would deem the entire prize under the constructive control of the winner and thus impose income tax based on the entire amount. That federal law has now been changed allowing the winner to elect either an annuity or a lump sum settlement. This amendment will allow a prize winner to accept an annuity or to request a discounted cash settlement from the commission or obtain a settlement from a commercial firm if a more lucrative offer is made.

This proposal was controversial with private annuity vendors who previously offered cash pay-outs to lottery winners.

The issue presented by this filing is whether new construction requires a smoke alarm that is hard wired. The Fire Marshals rule provides:

5.807(6) Power source.
a. In new buildings and additions constructed after July 1, 1991, required smoke detectors shall receive their primary power from the building wiring when such wiring is served from a commercial source. Wiring shall be permanent and without a disconnecting switch other than those required for overcurrent protection. Smoke detectors may be solely battery operated when installed in existing buildings, or in buildings without commercial power, or in buildings which undergo alterations, repairs or additions regulated by subrule 5.807(2).

The statute itself defines a smoke detector as

"_a device which detects visible or invisible particles of combustion and which incorporates control equipment and an alarm-sounding unit operated from a power supply either in the unit or obtained at the point of installation_The state fire marshal shall adopt rules under chapter 17A as necessary to enforce this section including rules concerning the placement of smoke detectors and the use of acceptable smoke detectors. The smoke detectors shall display a label or other identification issued by an approved testing agency or another label specifically approved by the state fire marshal". [ § 100.18]

Opponents of this rule noted that the Code of Iowa specifically recognizes both battery and wired smoke detectors, while the rule in essence requires wired detectors. § 100.18 is a lengthy section dealing solely with smoke detectors. Note that the grant of rulemaking power to the Fire Marshal includes "the use of acceptable smoke detectors". The question is whether this grant of rulemaking power supercedes the specific statutory definition. The effect of the rule is essentially to required the use of wired detectors in most new construction. In a letter dated May 10th The assistant Attorney General advising the fire marshal noted the general rulemaking authority set out in Iowa Code § 100.1(5), which states in part:

"Wherever by any statute the fire marshal or the department of public safety is authorized or required to promulgate, proclaim, or amend rules and minimum standards regarding fire hazards or fire safety or protection in any establishment, building or structure, the rules and standards shall promote and enforce fire safety, fire protection and the elimination of fire hazards"

The assistant Attorney General concluded that the department's rule concerning the power source of a smoke detector is designed to set standards for the use of "acceptable smoke detectors", based on the higher level of reliability for wired smoke detectors.

Iowa is one of the few states that makes a serious effort to curtail advertising along its highways. The only commercial signs available are small "logo" signs, advertising gas, food, lodging and camping services. The department adopts a fifth category, tourist attractions. This new logo must replace of one the signs already in place-no new slots will be available.

The rules also provide for "trailblazing" signs. These signs will direct the motorist to the advertised service once they have left the highway itself.

Pursuant to the requirements of the Workforce Investment Act of 1998 Workforce Development is changing the rules of organization and operation of the regional boards. The new rules require "periodic, regular and meaningful" input from the disabled, older workers, local economic groups and the regions one-stop operator. The rule suggests these groups be represented by ex-officio, non-voting members.

Nominations for members representing business, labor or education are made by members of those particular groups. Following review by the department and the Governor, the final appointment is made by the local elected officials.

The local boards themselves are "certified" by the Governor every two years. The criteria are the extent to which the boards' composition complies with that mandated by the rules and the extent to which the local boards' action have furthered the local performance measures. The Governor may also decertify a board for fraud, abuse of the failure to meet performance measures for two consecutive years.

One point for discussion: a certification, once granted, is a property interest protected by the Due Process Clause of the state and federal Constitution. Does this mean that the Governor is in a similar position to that of a licensing board and must give the local board an opportunity for a contested case hearing before the de-certification becomes final?

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Last update: TUE Aug 31 1999
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