ADMINISTRATIVE RULES REVIEW COMMITTEE Rules Digest -- December 1999 Scheduled for committee review - January 4, 2000 - Room #116 For further information, please contact Joe Royce, Legal Counsel, Administrative Rules Review Committee

HIGHLIGHTS IN THIS ISSUE:

DEPARTMENT FOR THE BLIND Mediation procedures

DENTAL BOARD OF EXAMINERS Nitrous oxide

EDUCATION DEPARTMENT Access to a school breakfast program

EDUCATION DEPARTMENT Special education revisions

ELDER AFFAIRS DEPARTMENT Assisted living facilities: certification fees

HISTORICAL DIVISION One room schoolhouse preservation

INSURANCE DIVISION Aftermarket auto parts

DEPARTMENT OF TRANSPORTATION Aviation infrastructure

UNDERGROUND STORAGE FUND TANK BOARD Fund privitazation

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.

In 1998 the board initially adopted rules allowing both dental hygienists and assistants to monitor the use of nitrous oxide; that rule was withdrawn amid complaints that dental assistants were neither licensed nor trained for such work. In June, 1999 the board proposed rules providing that dental hygienists could monitor nitrous oxide under the supervision of a dentist.

At the July ARRC meeting this new proposal was attacked as too restrictive and an unfair burden on a common practice within the profession. It was argued by hygienists and some dentists that for many years hygienists have safely induced and deduced nitrous oxide, and that practice is now routine within the profession. In support of this contention they noted that three of the four community colleges training dental hygienists provided nitrous oxide education.

Board representative responded that Iowa Code section 153.20 specifically delegates to the dentist the right to administer anesthesia--the representative argued this specific statutory delegation precluded administration of anesthesia by a hygienist. Committee members concluded that the administration of nitrous oxide by hygienists was apparently a widespread practice; absent any evidence that this practice presented a threat to the public health the members felt that further review was needed before that practice was curtailed by rule.

The board now attempts to resolve this dispute by withdrawing those rules delayed by the committee--except for subrule 29.6(6). That provision was part of the rulemaking package, but was not itself controversial. The committee should consider removing the delay on this remaining provision, allowing it to go into effect.

Iowa Code Chapter 283A currently requires, effective July 1, 1999, that all school districts provide for school breakfast programs at all public schools in each district. The programs must provide students with nutritionally adequate meals and shall be operated in compliance with the rules of the department and federal law and regulation. A school or district unable to meet the requirement to provide a school breakfast program may file a written request to the department of education that the department waive the requirement for that school or school district. 1999 Iowa Acts Chapter 147 now amends that requirement by allowing schools to provide the breakfast at an alternative site, without requesting a waiver from the department. The school board must annually certify to the department that the plan:

• Provides safe travel routes to and from the site.
• Minimizes travel time between the student's attendance center and the alternative breakfast site.
• Provides reasonable time for breakfast and allot time to travel to the school site..
• Provides an alternative breakfast site facility adequate for the number of students.

The school board must notify the parent, guardian, or legal or actual custodian of a child of the district's intention to develop and implement a plan to provide school breakfast programs only in certain attendance centers. Any substantive change to an existing plan must also be preceded with a similar notice.

Pursuant to the federal Individuals with Disabilities Act of 1997 the department implements several important amendments to Iowa's special education program. It is the obligation of state and local 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 "full 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 maintains 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 establishes 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 requires all funds to be deposited in the general fund. 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.

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.

Under this filing 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.

When this proposal was initially reviewed in July, there was a lively debate between the insurance industry, which opposes the rule, and those who support public notification. The insurance industry was concerned that wording of the notice implied that aftermarket crash parts were inferior and that voided original warranties; the industry contended both were incorrect. More generally the industry contended that aftermarket parts provide cost competition to the higher cost manufacturers part, and thus are essential to bring cost-competitiveness to the repair industry. Insurance representatives noted the work of the Certified Automotive Parts Association {CEBA}, which sets standards for aftermarket parts and does some testing. It was noted that most insurers insist only on parts certified by this association. In response to industry concerns the rule has been amended to state that any warranties applicable to aftermarket parts are provided only by the aftermarket part manufacturer.

Proponents of the rule insist that public notification is essential, contending that aftermarket parts are often inferior to original manufacturers equipment in both materials and workmanship. Proponents of the rule noted that only a third of the aftermarket parts are actually certified by CEBA, and that CEBA itself did only limited testing.

The department proposes a new airport program complementing several existing programs which fund general improvements and commercial air marketing. 1999 Iowa Acts Chapter 204 has appropriated $500,000 for "vertical infrastructure" at Iowa's 103 general aviation airports. A "general aviation airport" is a public airport, owned by a governmental subdivision, which does not have scheduled commercial air service. Vertical infrastructure includes only land acquisition, construction, major renovation and major repair of buildings, all appurtenant structures, utilities, site development. It does not include routine, recurring maintenance or operational expenses or leasing of a building (Iowa Code §8.57).

Eligible project activities include:

• Hangar renovation or construction including associated design, land acquisition, grading, foundation work, floor slabs and utilities.
• Fuel facilities including associated design, land acquisition, grading, foundation work, floor slabs and utilities.
• Terminal building renovation or construction including associated design, land acquisition, grading, foundation work, floor slabs and utilities.

Ineligible project activities include:

• Runway, taxiway, or apron paving. This includes any apron paving directly adjacent to terminal buildings or hangars.
• Automobile parking lot grading, paving, or lighting.
• Routine maintenance of pavements or buildings.

The funding for all projects is a 70 state\30 local match, with a state maximum of $50,000. A point system is set out to set funding priorities, with emphasis placed on revenue-producing projects and for rehabilitation of existing infrastructure.

Effective March 1, 2000, the underground storage tank insurance board becomes the "Petroleum Marketers Mutual Insurance Company", a mutual insurance company which is privately owned and operated by its insureds. This action is mandated by 1998 Iowa Acts, Chapter 1068. The action is contingent upon the new company receiving certification from the insurance division. The initial make up of the board is set out in statute; subsequent changes will be made by insureds themselves. The current rulemaking obligations and authority remains intact. Leading to the curious anomaly that a private insurance company will be adopting rules through a government policymaking process

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Last update: WED Jan 5 2000
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