ADMINISTRATIVE RULES REVIEW COMMITTEE Rules Digest -- November 1999 Scheduled for committee review - November 9, 1999 - Room #1 For further information, please contact Joe Royce, Legal Counsel, Administrative Rules Review Committee

HIGHLIGHTS IN THIS ISSUE:

AGRICULTURE DEPARTMENT Organic standards

ATTORNEY GENERAL Condemnation: statement of rights

DEPARTMENT FOR THE BLIND Mediation procedures

ECONOMIC DEVELOPMENT DEPARTMENT Housing fund

ECONOMIC DEVELOPMENT DEPARTMENT Community planning & development fund

EDUCATION EXAMINERS BOARD Drivers instruction

EDUCATION DEPARTMENT Special education revisions

ELDER AFFAIRS DEPARTMENT Assisted living facilities: certification fees

EXECUTIVE COUNCIL Civil reparations trust fund

HISTORICAL DIVISION One room schoolhouse preservation

HUMAN SERVICES DEPARTMENT Child support payments

HUMAN SERVICES DEPARTMENT HAWK-I revisions

NATURAL RESOURCES DEPARTMENT Deer depredation permits

DEPARTMENT OF PUBLIC SAFETY Group homes in residential neighborhoods

UTILITIES DIVISION Pipeline standards

98 Acts chapter 1205 created an organic foods certification and standards process. A multi-member board had been set up within the Department of Agriculture with the power to govern the production, handling, processing, and selling of agricultural products designated as organically grown. The rules provide for standards, certification, inspections, testing, the assessment and collection of state fees, the maintenance of records, disciplinary action, and the issuance of stop sale orders.

In order to be certified by the department, the producer, handler, or processor must submit an organic plan which includes methods used to ensure that the agricultural products are produced, handled, and processed according to requirements established by the rules and statute. The plan contains the detail for management of an organic crop, livestock, wild harvest, processing or handling operation that has been agreed to by the operator and the department; it specifies the steps necessary for the operation to be in compliance with organic standards.

The department provides to the successful applicant an official certificate recognizing compliance with Iowa Code chapter 190C and the rules. The certificate may be used to indicate that products are certified as being produced, processed and handled in conformity with the organic standards. The certificate may not be used in any way that brings the department into disrepute or which is misleading or unauthorized. Intentional fraud or inadvertent violation of the statute or the rules may result in suspension of certification or decertification. If inadvertent violations are not corrected as required by the department, or in the case of fraud, the operation may be decertified.

As part of the condemnation process House file 476 requires that the acquiring agency provide the owner of the private property with a statement of their individual rights to be included with the notice of condemnation. The attorney general is required to adopt rules prescribing a statement of rights which may be used in substantial form by any person required to provide the statement by this section. This new chapter of rules enumerates twelve rights, gleaned from Constitution and statute; these include the right to:

• Just compensation;
• An offer not lower than the lowest appraised value;
• Receive a copy of the agency's appraisal;
• Accompany at least one of the agency appraisers;
• Participate in good faith negotiations prior to condemnation proceedings;
• A determination of just compensation by an impartial board and the right to appeal its decision into district court;
• A special review by the board if the land is agricultural and being condemned for industrial purposes;
• Payment of an agreed price or a deposit on the condemnation award before being required to surrender the property;
• Reimbursement for expenses incidental to the transfer of title;
• Reimbursement for certain litigation expenses if the ultimate award is significantly larger than the agency offer;
• At least ninety days written notice to vacate an occupied property;
• Relocation services and payments.

This list does not claim to be all-inclusive; it specifically notes that it is no substitute for the advise of an attorney.

The department replaces its existing rules for contested case hearings with a detailed procedure for mediation. Based on the requirements of the Vocational Rehabilitation Act, this process attempts to provide a speedy, low-cost alternative to a full-blown contested case process. Mediators are available from the Iowa Peace Institute, the Department of Education and the Iowa Extension service. Mediation is an attempt to informally resolve a dispute; to encourage open discussion nothing in the mediation process can later be used in evidence. Anyone dissatisfied with the mediation process may demand a full contested case.

The department updates its home fund rules. This program often I used to complement the tax credit program administered by the Iowa Housing Finance authority Early in 1988 these rules replaced the old "HOME Investment Partnership Program" with a new program consolidating housing requirements, for low and moderate income housing, combined into a single chapter. This program funds "affordable" housing, which means for rentals, either the area fair market rent or 30% of 65% of the area median family income; and for home ownership the purchase price cannot exceed 95% of the median home price in the area. For home ownership, assistance must be less than $25,000 All rental units and home ownership assistance must go to households with incomes at or below 80% of the median income. Additionally, for rental assistance 90% of the families served must have an income lower than 60% of the area median. Eligible activities under this program include rehabilitation of existing properties, rent assistance and new construction.

The department combines several existing rural assisting programs into a single chapter. House File 745 has appropriated over $1,000,000 for these various projects. The community planning & development fund is available to local government and economic development groups. Awards may be up to $50,000 over a three year period. Applicants must provide a 25% match. The program is not designed to fund that actual project itself, the program trains participants to develop projects. Funding is available:

• To hire staff or consulting services for community development or for new systems of delivering governmental services;
• To conduct feasibility studies concerning development activities;
• To conduct marketing studies;
• To purchase educational or training material for economic/community development;
• To fund pilot studies for economic/community development;
• For strategic planning.

Application are evaluated according to a point system which has a maximum 700 points; with a minimum of 400 points to be considered for funding. Expenses related to a particular project are not eligible under this program.

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.

Pursuant to the federal Individuals with Disabilities Act of 1997 the department proposes a series of amendments to Iowa's special education program. At the core of the special education program is the obligation to provide special education and related services at public expense, under public supervision and direction, and at no cost to the parents. Special education must meet the standards established by the federal government. In essence the requirement is that each school provides educational opportunity to children requiring special education. Full educational opportunity includes the variety of educational programs and services and nonacademic and extracurricular services and activities that are available to individuals who do not require special education, including art, music, industrial arts, consumer and homemaking education, and vocational education. Also included are non-academic and extracurricular activities such as counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the school, referrals to agencies that provide assistance to individuals with disabilities, and employment of students. Note that a school may ask, but not require the parents of disabled children to use public or private insurance proceeds to pay for services if they would not incur a financial cost as described in the rules. Under the federal revision the provision of a free appropriate public education also applies to special education children who have been suspended or expelled from school.

Several of the important changes are summarized below:

One significant addition under the federal Act is the requirement that all children with disabilities, including those attending private schools, regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.

Another new requirement is "transitional services". As part of special education schools must provide activities designed to help the student move from the school environment into post secondary education, employment or independent living. These services are detailed as part of the individualized education program.

The federal Act revises and expands the individualized education program (IEP). The IEP is the written record of the students special education and related services, as developed in accord with these rules. It records the decisions reached at the staff meeting and details the commitment of resources necessary to enable the student to receive needed special education and related services appropriate to the individual's special learning needs.

Disciplinary procedures are also changed under this proposal. For disciplinary purposes a special education student can be treated like any other student if the special education student is removed from his or her current placement for not more than ten consecutive school days for any violation of school rules. Additional removals of not more than ten consecutive school days in that same school year for separate incidents of misconduct are also allowed. However, after a special education student has been removed from his or her current placement for more than ten school days in the same school year, during any subsequent days of removal the public agency must provide an appropriate education. A special education student who has been removed from the current educational placement may be kept in an interim alternative no longer than 45 days.

Iowa Code Chapter 231C was enacted in 1996 to foster the development of home-like facilities where six or more tenants could live while receiving health-related care, personal care, and assistance with daily living activities such as shopping, cooking, housekeeping, chores, and local traveling. The department is required to establish by rule a program for certification and monitoring of these programs. Certification is voluntary and programs may opt instead for voluntary accreditation. The department maintain a list of organizations recognized for the purposes of voluntary accreditation of assisted living programs.

When first implement in 1996 the department did not adopted rules setting out fees for the certification process; at that time department staff was unsure what level of fee was appropriate to cover the cost of administration. The department now proposes to codify fees for certification, renewals and blueprint review, based on the cost of providing the service.

The fees are significant not only because of the expense to the facilities, but also because their continued collection will require a statutory change. The department maintains that it has neither the staff nor the budget to provide a detailed review or evaluation of the facilities without this fee structure. The problem is that Iowa Code Chapter 231C does not make any provision for the imposition of a fee. While this does not necessarily make the imposition of a fee unlawful, the problem is compounded by the fact the department actually uses the fees to administer the program. Iowa code 12.10 states that "[A]ll * * * departments shall, within ten days succeeding the collection, deposit with the treasurer of state, or to the credit of the treasurer of state in any depository designated by the treasurer of state, ninety percent of all fees, commissions, and moneys collected or received." The question is whether the department can assess the fee and whether the department can expend the revenue generated by the fee.

The basic problem is that Chapter 231C creates a regulatory program of some significance but makes no provision for funding that program. The committee should consider a general referral of both these rules and chapter 231C to the legislature along with the recommendation that the funding scheme for this program be integrated into the statute either through a regular appropriation or through a statutory fee structure.

Iowa Code Chapter 668A relates to punitive or exemplary damages awarded pursuant to a court action. Such damages are sometimes awarded in addition to compensatory damages when "_the conduct of the defendant from which the claim arose constituted willful and wanton disregard for the rights or safety of another." In some situations 75% of a punitive damage award is paid over to the state; such funds are placed in the civil reparations trust. These funds are under the control and supervision of the executive council, and shall be disbursed only for purposes of indigent civil litigation programs or insurance assistance programs.

The council has developed a simple application process to make awards under this program. The fund balance will be published in the IAB twice each year, thus giving the public notice that funds are available; applications will be accepted up to 30 days after the date of this publication. These rules serve as a rather nice model for small grant programs.

Once a common sight throughout rural Iowa, a special preservation program is now underway to restore those few one/two room schools still standing. As provided by Senate File 464 up to $25,000 is available annually for restoration projects. No applicant can receive more than $5,000 in a single year.

At issue in this filing is rule 95.3. Previously, support payments were credited when withheld from the obligors check. The problem is that some employers who deduct child support do not immediately forward that money to the center or do not note the date of the deduction. Under the new rule payments are credited for the month in which the money is received by the collection services center. At the October rules meeting members voted a session delay on this provision, feeling that at the moment the obligor lost control of the funds that individual had fulfilled his or her legal responsibilities.

The issue has now been complicated by the fact that Iowa law does not require employers to report the date that withholding occurs. Iowa Code §252D.17(6) states in part that: "Whether combined or separate, payments shall be identified by the name of the obligor, account number, amount, and, until October 1, 1999, the date withheld." Under this provision, as of October 1st employers cannot be required to report the date a payment is withheld. However, it should be noted that §252D.17 requires the payor to send the withheld amounts within seven business days of the date the support obligor is paid. This means that when necessary the withholding date can at least be estimated to within 8-9 days.

This filing contains a series of amendments to the Hawk-I program. The Hawk-I program provides health insurance for children whose families might not other wise be eligible for assistance. The department implements changes in effect raise eligibility to about 200% of the poverty guidelines. It also provides that a child who is voluntarily excluded from the household {under the Medicaid program} due to the child's excess income [e.g.: child support]or resources can participate in the HAWK-I program if otherwise eligible.

Under the previous rules eligibility was based on 185 percent of the poverty guideline, using gross income. The amendment in effect raises this limit by allowing a standard 20% deduction to gross income. This 20% figure is commonly used as an alternative to calculating all deductions on a case-by-case basis.

When reviewed by the ARRC in September, members did not object to this increase, but it was noted that the General Assembly declined to enact a similar increase. Members did comment on the lack of consistency between income deductions allowed for tax purposes and the deductions allowed by various assistance programs. Members noted that capital depreciation was not allowed as a deduction for assistance programs even though such deductions are allowed under federal and state tax law. A deduction for capital depreciation is now being considered by the department and rule-making in this area is possible.

The commission revises its regulations concerning the reduction of deer populations in areas where the animals cause excessive crop damage. The previous rules only provided depredation permits for horticultural losses, along with special licenses issued during the regular season to protect agricultural crops. This proposal makes depredation permits available to grain farmers as well as to nurseries or truck gardeners. The impact of this change is to allow grain farmers the possibility of shooting marauding deer regardless of the season A second change establishes a damage threshold of only $1000 for a permit.

With limited exceptions, a depredation management plan must be developed before a permit will be issued. Commission representatives will inspect the area and develop the plan along with the landowner. Plans will normally be for a three year period, combining depredation permits along with other long-term preventative measures {e.g.: fencing} to reduce or eliminate the deer damage.

This issue involves a long standing dispute between the fire marshal's office and the City of Windsor Heights. Local authorities vigorously contended that houses converted into group homes for Alzheimer's victims should have a sprinkler system. State rules did not provide for such a requirement. Iowa Code §135C.2, subsection (5) states that local governments cannot have a fire code more restrictive than the code established by the state fire marshal for certain specialized licensed facilities. Specifically, "facilities which serve persons with mental retardation, chronic mental illness, a developmental disability, or brain injury, _ and which contain five or fewer residents." The Fire Marshal's authority to regulate in this area was also restricted by a statutory provision that in essence prohibited requiring sprinklers in these facilities. That restriction was eliminated by H.F. 497.

The Fire Marshal now proposes a sprinkler requirement for those homes which have a locked door system preventing free exit {Alzheimer's facilities}. Such sprinkler systems can cost as much as $40,000. The requirement will be applied to existing homes, with a two-year compliance grace period.

Senate File 160 amended Iowa statutes to focus the Utility Board's authority on establishing standards for the restoration of agricultural lands during and after pipeline construction. The previous statutes dealt more with general construction standards. The Act mandates rulemaking in a number of soil conservation areas, these items are fully detailed in the rules. They include:

• Topsoil separation and replacement.
• Temporary and permanent repair to drain tile.
• Removal of rocks and debris from the right-of-way.
• Restoration of areas of soil compaction.
• Restoration of terraces, waterways, and other erosion control structures.
• Revegetation of untilled land.
• Future installation of drain tile or soil conservation structures.
• Restoration of land slope and contour.
• Restoration of areas used for field entrances and temporary roads.
• Construction in wet conditions.
• Designation of a pipeline company point of contact for landowner inquiries or claims.

The Act provides the county boards of supervisors' with authority to inspect projects and gives the county boards of supervisors the authority to file a complaint with the Board in order to seek civil penalties for noncompliance with various requirements.

The Act also requires a procedure for review of land restoration plans. The proposed rules describe the contents of a land restoration plan and then set out detailed requirements for land restoration. Land restoration plans must be prepared for pipeline construction projects. A land restoration plan must include the following:

• A brief description of the purpose and nature of the pipeline construction project.
• A description of the sequence of events that will occur during pipeline construction.
• A description of how compliance with the statutory conservation requirements will be accomplished.

The Utilities Board may by waiver accept variations from the rules in such plans if the pipeline company can show good cause and if the alternative methods would restore the land to as good as or better condition than provided for in this chapter. Any interested person may file an objection to the plan. The board will approve or docket the plan for further investigation within 30 days from the date the plan is filed. If there are material questions of fact, the board will set the plan for hearing.

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Last update: MON Nov 8 1999
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