The board completes action on a January Notice of Intended Action eliminating that portion of the cosmetology examination that actually involves a demonstration of skills; the rule substitutes a test on written theory for the current practical examination. 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. The board maintains the practical examination is not necessary to evaluate applicants, noting that only one or two fail the practical examination while 15-20 {out of 150} fail the written examination. The board also notes that the new computerized test will allow applicants to be tested at more convenient locations.

Opponents are concerned this change will allow the licensure of applicants who are knowledgeable in theory, but inept in actual practice; they maintain that actual skill to be integral to the licensing process and should continue to be tested.

In 1998 the General Assembly adopted House File 2528. Portions of that legislation were in conflict. One portion stated That drivers education teachers needed a teaching certificate, while another portion stated that "street or highway" instruction could be provided by a person certified by the DOT. In January the ARRC pointed out this disparity to the legislature, which enacted Senate File 203. §11 provides that the board must "authorize" the behind-the-wheel instructors certified by the department -- the rule proposed by the board call for a teacher or administrator license as well as completing the course specified by the DOT.

Essentially this means that classroom instruction must be provided by an educator qualified in drivers instruction, while the behind-the-wheel portion of the drivers education course can be provided by a teacher or administrator who has completed the DOT's 36 hour course.

The department proposes new rules relating to teacher preparation at Iowa's colleges and universities. All such programs are approved by the state board of education. These rules will be effective in August, 2001.

Compliance with these standards will be by self-evaluation of the participating institutions. Applicants for approval will be visited by a team of department employees. Approval is for five years. Once approved, graduates of these institutions will be issued the appropriate license and endorsements.

The proposal contains a fairly detailed set of standards for the evaluation of these programs. The standards fall under a number of specific categories:

• taff support and resources;
• Racial, ethnic and gender diversity;
• Racial, ethnic and cultural diversity in both faculty and student body;
• Faculty performance and ongoing development;
• Clinical practice;
• Student performance standards;

These six categories embrace some 50 individual standards. None appear to be controversial but some are overly vague. For example, rule 79.10-11-12 contains a number of statements but they are not phrased as requirements. Additionally, a number of requirements use inconclusive phrases such as "is expected" or "is valued"_Simply put, requirements must be more definitive.

The division centralizes the rules relating to composting into one central provision. Composting is defined as "the controlled biological decomposition of organic matter under aerobic conditions resulting in a stable, innocuous final product." Composting facilities may include vermicomposting, turned windrows, aerated static piles, aerated in-vessel systems, or other methods approved by the department. A composting facility includes all related receiving, processing, production, curing, and storage areas.

Under Iowa law yard waste may not be buried in a sanitary landfill; thus yard waste is a common product at composting facilities. Some facilities also process solid waste, but these require a separate permit from the department. Facilities must meet the following conditions:

• The facility must be 500 feet from any existing habitable.
• Access must be restricted and the gate must be locked when an attendant is not on duty.
• Emergency access and fire lanes shall be maintained to provide access for fire fighting equipment.
• A permanent sign posted at the entrance must state:
  1. Name of operation,
  2. Operating hours,
  3. Name and telephone number of the responsible official,
  4. Materials which are accepted, and
  5. Name and telephone number of emergency contact person.
• Solid waste shall be unloaded at the composting facility only when an operator is on duty.
• Solid waste which cannot be composted or which is removed during processing shall be disposed of in accordance with Iowa law.
• Measures must be taken to prevent water from running onto the facility from adjacent land and to prevent water from running off the composting facility.
• Facilities shall be designed, constructed, and maintained so as to avoid or minimize ponding.
• The operating area must be surrounded with barriers to prevent litter from blowing.
• Solid waste materials shall be managed through the entire process in accordance with best management practices.
• Storage of finished compost is limited to 12 months.
• If finished compost is offered for sale as a soil conditioner or fertilizer, the compost must be registered the Iowa fertilizer law.
• The composting facility shall obtain an NPDES permit.

As provided in 1999 legislation the department "emergency" adopts prior approval for certain prescription drugs. For the first time, legislation relating to prior authorization required emergency rulemaking for implementation. These rules were informally reviewed by the committee in June.

In House File 760 the General Assembly decided to save $1 million in Medicaid funds through the use of prior authorization for certain specified Medicaid prescriptions. The rules implementing these provisions were submitted to the Committee in document form, before they were adopted by the Department or published in the Iowa Administrative Bulletin. Opponents of prior authorization opposed the use of this procedure. First they protested that copies of the rulemaking document were obtained only days before the Committee meeting, thus denying any real opportunity to contest this filing; second they contended that while the Act did mandate "emergency" rulemaking, it did not mandate a July 1st effective date. The opponents noted that a July 15th effective date would have allowed the rules to be published in the IAB and reviewed in a timely manner at the Committees' July meeting---thus providing a meaningful opportunity for public input. Lastly, some opponents suggested that a clinical review was needed before the use of these drugs was restricted, to ensure that the well-being of the patient was not endangered. Department representatives responded that the intent of House File 760 was to speedily implement this provision -- by July 1st. The representatives emphasized the legislatures intention of saving $1 million; they further emphasized that an "emergency" filing was mandated in the legislation. They concluded by observing that the rules are also to be published as a notice of intended action, allowing a full opportunity for public review and discussion.

Under this proposal any automobile insurance policy delivered in Iowa that limits benefits based on the cost of aftermarket crash parts or that requires the insured to pay the difference between the cost of original equipment manufacturer parts and the cost of aftermarket crash parts must include a notice which contains a specific notice detailing that limitation. Pursuant to Iowa Code section 507B.3 the commissioner has the power to examine and investigate the affairs of every person engaged in the business of insurance in this state in order to determine whether the person has been s engaged in any unfair method of competition or in any unfair or deceptive act or practice.

1998 Iowa Acts, chapter 1219, section 17 establishes a special fund to provide assistance to private conservation organizations in the acquisition and protection of significant blufflands along the Iowa side of the Mississippi River and Missouri River. These proposed rules establish policies and procedures for the administration of the blufflands protection revolving loan fund program. "Blufflands" means a cliff, headland, or hill with a broad, steep face along the channel or floodplain of the Missouri River or Mississippi River and their tributaries.

50 percent of available funds shall be allocated to projects on the Missouri River blufflands and 50 percent to projects on the Mississippi River blufflands. Any non-profit conservation organization can apply for loans to purchase blufflands. Rule 24.6 provides that loans will be evaluated according to criteria set out in the "land acquisition priority plan". Pursuant to the newly effective provisions of Iowa Code §17A.3, these criteria must be set out as administrative rules.

These provisions implement 1999 Iowa Acts, Senate File 451; that legislation revises the procedures regarding contracts and claims for indigent defense legal services and adjusts the eligibility guidelines for the appointment of counsel to indigent clients in specific cases. The Act provides that the public defender will establish fee limitations for particular categories of cases, reviewed at least every three years. The public defender must also establish a procedure for the submission of all claims for payment of indigent defense costs, including the submission of interim claims.

Any Iowa attorney is eligible to contract with the public defender to provide indigent defense; however, the public defender is not obligated to offer a contract to any specific applicant. The rates are $60 per hour for class "A" felonies; $55 per hour for Class "B"; and $50 per hour for all other work. Caps are also established for various categories. In evaluating applicants the public defender may confer with judges, attorneys and others concerning competence, effectiveness, trustworthiness of the applicant. The public defender may meet with, or obtain information from the applicant to determine the applicants qualifications and ability and to establish the types of cases the applicant will handle and the geographic area. An applicant who is not offered a contract may appeal that decision through the contested case process.

The rules also establish eligibility criteria for legal services. As provided in Iowa Code §815.9 a person is entitled to an appointed attorney if the person has an income level at or below one hundred twenty-five percent of the United States poverty level, unless the court determines that the person is able to pay for the cost of an attorney. Up to 200% of the guideline the court may authorize payment if the cost would create a substantial hardship. The applicant must provide an "Affidavit of Financial Status/Application for Appointment of Counsel and Order" form, which provides:

• That the information is provided under penalty of perjury.
• That the information accurately represents the number of family members who are supported by or live with the applicant.
• That the information accurately represents the total gross income received or reasonably anticipated to be received by the applicant.
• That the information accurately represents the gross income of the household in which the applicant lives.
• That the information accurately represents the total assets owned, in whole or in part, by the applicant.
• That the information accurately represents the total monthly debts and expenses for which the applicant is responsible.
• That the information, in criminal cases contains a statement of the charge against the defendant. In juvenile or civil cases, a statement of the nature of the proceedings shall be included.

With the adjournment of the 1998 session of the General Assembly three commission rules, which had been delayed by the ARRC pending legislative review, became effective. In August 1998 the commission adopted rules which banned from gaming facilities machines which extend credit to the patrons and froze the number of track casinos and gambling boats at current levels. This provision was offered as a compromise from the initial notice of intended action, which would have banned all automatic teller machines {ATMs} generally. The committee imposed a session delay on 491 IAC 1.6(4), relating to credit machines. Provisions which froze the number of licenses at current levels were not delayed or referred and went into effect.

Another rulemaking proceeding was published in November, containing two distinct provisions. The first required that automatic teller machines {ATMs} be moved away from the casino floor; the second established specific criteria the commission would use when evaluating applications for additional slot machines. No action was taken on the provision relating to ATMs, which then went into effect. The committee imposed a session delay on 491 IAC 5.1(5) and 20.22 -- the two provisions relating to the criteria for additional slots.

Those rules became effective upon adjournment of the General Assembly. Both the Governor and the Racing and Gaming Commission have declined to take action to rescind any of these provisions. Thus 491 IAC 1.6(4) mandates (with the force and effect of law) that credit machines be removed from gaming facilities.

The gaming facilities and the credit providers have filed suit in Polk County District Court seeking to overturn this rule. In a significant development, the court has granted plaintiffs motion for a temporary injunction -- suspending enforcement pending a full judicial disposition. A temporary injunction is granted only when {among other factors} the court feels that the plaintiff is likely to succeed on the merits of the case. In reaching this initial conclusion the court noted concern that the ban was not within the authority of the commission :

"A literal reading of the above statute makes it impermissible for a licensee to accept credit_The licensee, i.e. Prairie Meadows, is not the one who accepts the credit card. Rather, it is Game or global who accepts a credit card and issues a check.
The Rule as promulgated by the agency, therefore, is in direct conflict with a literal reading of Iowa Code §99F.9(6)."

A final decision of the District Court may be expected this Summer. An appeal to the Iowa Supreme Court would then be a possibility.

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Last update: TUE Aug 31 1999
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