Pages 876 to 926 include ARC 1155B to ARC 1192B

Schedule for rule making 868

Publication procedures 869

Administrative rules on CD–ROM 869

Agency identification numbers 874

CITATION OF ADMINISTRATIVE RULES 867

Notice, Temporary permit, 14.101(3)
ARC 1181B 876

Filed, Extension—time for initiation of an
appeal or review on board’s motion,
11.28 ARC 1183B 902

Filed, Application denial and appeal;
denial of renewal application, 11.35, 11.36
ARC 1182B 902

Filed, Denial of license or discipline of
licensee, 12.2 ARC 1185B 903

Filed, Master educator license, 14.113
ARC 1184B 904

Notice, Assisted living program—persons
with dementia or cognitive impairment,
27.2(4), 27.3, 27.4(1), 27.5, 27.7(1)
ARC 1180B 876

Notice, Open burning variance; construction
permits; Title V permits; emission standards—
hazardous air pollutants, 20.3(2), 22.1(1),
22.3(3), 22.100, 22.101(1), 22.201(2),
22.300, 23.1, 25.1 ARC 1191B 878

Notice, Permits; special waste authorizations,
102.15, ch 109 ARC 1190B 882

Filed, Discarded appliance demanufacturing,
ch 118 ARC 1192B 904

Notice, Field operations structure—delivery
system and local offices, 1.4, 3.5(2)
ARC 1156B 884

Notice, FIP—hardship exemption eligibility,
41.24(2), 41.30(3), 46.21, 93.109,
93.111(1) ARC 1160B 886

Notice, Providers of service to state
payment program—4.3 percent reduction,
153.57(3)“b” ARC 1166B 887

Filed Emergency, Field operations structure—
delivery system and local offices, 1.4,
3.5(2) ARC 1155B 896

Filed, Appeals—county management plans,
25.13(2)“j” ARC 1157B 908

Filed, Risk pool funding, 25.61, 25.62(9),
25.63(1), 25.65(1) ARC 1158B 909

Filed Emergency, FIP—hardship exemption
eligibility, 41.24(2), 41.30(3), 46.21,
93.109, 93.111(1) ARC 1159B 898

Filed, Independent laboratories, 77.20, 78.20,
79.13 ARC 1161B 910

Filed, Lead inspection agency providers,
77.40 ARC 1162B 910

Filed, Prior authorization for certain drugs,
78.1(2), 78.28(1) ARC 1163B 911

Filed, Contracting for rehabilitative treatment
and supportive services, 152.2, 152.23(1)
ARC 1164B 913

Filed Emergency, Providers of service to state
payment program—4.3 percent reduction,
153.57(3)“b” ARC 1165B 900

Filed, Technical corrections—cross references
and agency identification numbers,
51.50, 51.51 ARC 1175B 913

Filed, Medicare supplement insurance minimum
standards, 37.7, 37.24 ARC 1188B 914

Filed, External review, 76.1 to 76.9
ARC 1189B 914

Filed, Technical and editorial changes;
publications available for review, 1.55(3),
10.7, 10.19(10), 26.1, 71.6, 155.2(2),
155.6, 215.1 ARC 1171B 916

Filed, Safety standards for steel erection,
26.1 ARC 1172B 917

Filed Emergency, Sick leave and vacation
incentive program—2002, 11.1(4)
ARC 1167B 900

Notice, Psychologists—training on mandatory
reporting for child abuse and dependent adult
abuse, 240.1, 240.11(2) ARC 1168B 887

Filed, Notification and surveillance of
reportable communicable and infectious
diseases, poisonings and conditions,
1.1, 1.3(1), 1.5(1), 1.9 ARC 1178B 917

Filed, Initiation of special study—additions to
list of reportable diseases, 1.3(1) ARC 1179B 919

Filed, Maternal deaths, 5.1 to 5.3 ARC 1176B 920

Filed, State medical examiner, 126.1,
126.2, 126.3(3) ARC 1174B 920

Filed, County medical examiners, ch 127
ARC 1177B 921

Filed, Update—director’s office address
and telephone number, 174.5 ARC 1173B 925

Summarized list 870

Notice, Exemptions from sales tax; inheritance
tax; hotel and motel tax; local option tax,
17.1, 17.11, 17.39, 18.52, 34.5(9),
86.2(1)“a,” 86.5(12), 105.2, 107.2(2),
107.9, 107.16, 107.17, 108.4 ARC 1170B 888

Notice, Sales of bundled services contracts,
26.81 ARC 1169B 894

Amended Notice, Rights and remedies
for gas and electric customers, 19.4,
20.4 ARC 1187B 895

Filed, Service of filings on office of consumer
advocate, 1.8(4)“c” ARC 1186B 926

CITATION of Administrative Rules

The Iowa Administrative Code shall be cited as (agency identification number) IAC
(chapter, rule, subrule, lettered paragraph, or numbered subparagraph).

441 IAC 79 (Chapter)

441 IAC 79.1(249A) (Rule)

441 IAC 79.1(1) (Subrule)

441 IAC 79.1(1)“a” (Paragraph)

441 IAC 79.1(1)“a”(1) (Subparagraph)

The Iowa Administrative Bulletin shall be cited as IAB (volume), (number), (publication
date), (page number), (ARC number).

IAB Vol. XII, No. 23 (5/16/90) p. 2050, ARC 872A

PUBLISHED UNDER AUTHORITY OF IOWA CODE SECTIONS 2B.5 AND 17A.6

__________________________________

The Iowa Administrative Bulletin is published biweekly in pamphlet form pursuant to Iowa Code chapters 2B and 17A and contains Notices of Intended Action on rules, Filed and Filed Emergency rules by state agencies.

It also contains Proclamations and Executive Orders of the Governor which are general and permanent in nature; Economic Impact Statements to proposed rules and filed emergency rules; Objections filed by Administrative Rules Review Committee, Governor or the Attorney General; and Delay by the Committee of the effective date of filed rules; Regulatory Flexibility Analyses and Agenda for monthly Administrative Rules Review Committee meetings. Other “materials deemed fitting and proper by the Administrative Rules Review Committee” include summaries of Public Hearings, Attorney General Opinions and Supreme Court Decisions.

The Bulletin may also contain Public Funds Interest Rates [12C.6]; Workers’ Compensation Rate Filings [515A.6(7)]; Usury [535.2(3)“a”]; Agricultural Credit Corporation Maximum Loan Rates [535.12]; and Regional Banking—Notice of Application and Hearing [524.1905(2)].

PLEASE NOTE: Italics indicate new material added to existing rules; strike through letters indicate deleted material.

Subscriptions and Distribution Telephone: (515)242–5120
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Rules will not be accepted after 12 o’clock noon on the Friday filing deadline days unless prior approval has been received from the Administrative Rules Coordinator’s office.

If the filing deadline falls on a legal holiday, submissions made on the following Monday will be accepted.

TO: Administrative Rules Coordinators and Text Processors of State Agencies

FROM: Kathleen K. Bates, Iowa Administrative Code Editor

SUBJECT: Publication of Rules in Iowa Administrative Bulletin

The Administrative Code Division uses Interleaf 6 to publish the Iowa Administrative Bulletin and can import documents directly from most other word processing systems, including Microsoft Word, Word for Windows (Word 7 or earlier), and WordPerfect.

1. To facilitate the publication of rule–making documents, we request that you send your document(s) as an attachment(s) to an E–mail message, addressed to both of the following:

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2. Alternatively, you may send a PC–compatible diskette of the rule making. Please indicate on each diskette the following information: agency name, file name, format used for exporting, and chapter(s) amended. Diskettes may be delivered to the Administrative Code Division, First Floor South, Grimes State Office Building, or included with the documents submitted to the Governor’s Administrative Rules Coordinator.

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Containing: Iowa Administrative Code (updated through June 2001)
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For free brochures and order forms contact:

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Attn: Ms. Stephanie Runde
State Capitol
Des Moines, Iowa 50319
Telephone: (515)281–3566 Fax: (515)281–8027
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To All Agencies:

The Administrative Rules Review Committee voted to request that Agencies comply with Iowa Code section 17A.4(1)“b” by allowing the opportunity for oral presentation (hearing) to be held at least twenty days after publication of Notice in the Iowa Administrative Bulletin.

Due to reorganization of state government by 1986 Iowa Acts, chapter 1245, it was necessary to revise the agency identification numbering system, i.e., the bracketed number following the agency name.

“Umbrella” agencies and elected officials are set out below at the left–hand margin in CAPITAL letters.

Divisions (boards, commissions, etc.) are indented and set out in lowercase type under their statutory “umbrellas.”

Other autonomous agencies which were not included in the original reorganization legislation as “umbrella” agencies are included alphabetically in small capitals at the left–hand margin, e.g., BEEF INDUSTRY COUNCIL, IOWA[101].

The following list will be updated as changes occur:

AGRICULTURE AND LAND STEWARDSHIP DEPARTMENT[21]

Agricultural Development Authority[25]

Soil Conservation Division[27]

ATTORNEY GENERAL[61]

AUDITOR OF STATE[81]

CITIZENS’ AIDE[141]

CIVIL RIGHTS COMMISSION[161]

COMMERCE DEPARTMENT[181]

Alcoholic Beverages Division[185]

Banking Division[187]

Credit Union Division[189]

Insurance Division[191]

Professional Licensing and Regulation Division[193]

Accountancy Examining Board[193A]

Architectural Examining Board[193B]

Engineering and Land Surveying Examining Board[193C]

Landscape Architectural Examining Board[193D]

Real Estate Commission[193E]

Real Estate Appraiser Examining Board[193F]

Savings and Loan Division[197]

Utilities Division[199]

CORRECTIONS DEPARTMENT[201]

Parole Board[205]

CULTURAL AFFAIRS DEPARTMENT[221]

Arts Division[222]

Historical Division[223]

ECONOMIC DEVELOPMENT, IOWA DEPARTMENT OF[261]

City Development Board[263]

Iowa Finance Authority[265]

EDUCATION DEPARTMENT[281]

Educational Examiners Board[282]

College Student Aid Commission[283]

Higher Education Loan Authority[284]

Iowa Advance Funding Authority[285]

Libraries and Information Services Division[286]

Public Broadcasting Division[288]

School Budget Review Committee[289]

ELDER AFFAIRS DEPARTMENT[321]

EXECUTIVE COUNCIL[361]

GENERAL SERVICES DEPARTMENT[401]

HUMAN RIGHTS DEPARTMENT[421]

Community Action Agencies Division[427]

Criminal and Juvenile Justice Planning Division[428]

Deaf Services Division[429]

Persons With Disabilities Division[431]

Latino Affairs Division[433]

Status of African–Americans, Division on the[434]

Status of Women Division[435]

HUMAN SERVICES DEPARTMENT[441]

INFORMATION TECHNOLOGY DEPARTMENT[471]

INSPECTIONS AND APPEALS DEPARTMENT[481]

Employment Appeal Board[486]

Foster Care Review Board[489]

Racing and Gaming Commission[491]

State Public Defender[493]

LAW ENFORCEMENT ACADEMY[501]

MANAGEMENT DEPARTMENT[541]

Appeal Board, State[543]

City Finance Committee[545]

County Finance Committee[547]

NATURAL RESOURCES DEPARTMENT[561]

Energy and Geological Resources Division[565]

Environmental Protection Commission[567]

Natural Resource Commission[571]

Preserves, State Advisory Board for[575]

PERSONNEL DEPARTMENT[581]

PUBLIC DEFENSE DEPARTMENT[601]

Emergency Management Division[605]

Military Division[611]

PUBLIC EMPLOYMENT RELATIONS BOARD[621]

PUBLIC HEALTH DEPARTMENT[641]

Substance Abuse Commission[643]

Professional Licensure Division[645]

Dental Examiners Board[650]

Medical Examiners Board[653]

Nursing Board[655]

Pharmacy Examiners Board[657]

PUBLIC SAFETY DEPARTMENT[661]

REGENTS BOARD[681]

Archaeologist[685]

REVENUE AND FINANCE DEPARTMENT[701]

Lottery Division[705]

SECRETARY OF STATE[721]

TRANSPORTATION DEPARTMENT[761]

Railway Finance Authority[765]

TREASURER OF STATE[781]

WORKFORCE DEVELOPMENT DEPARTMENT[871]

Labor Services Division[875]

Workers’ Compensation Division[876]

Workforce Development Board and
Workforce Development Center Administration Division[877]

Pursuant to the authority of Iowa Code section 272.2, the Board of Educational Examiners hereby gives Notice of Intended Action to amend Chapter 14, “Issuance of Practitioner’s Licenses and Endorsements,” Iowa Administrative Code.

The proposed amendment sets forth procedures for issuing a temporary permit to an applicant for any type of license, certification, or authorization issued by the Board, after receipt of a fully completed application, when the Board is awaiting the completion of the Praxis II examination verification and the national criminal history background check.

There is a substantial delay in the processing of national criminal history and fingerprint checks by the Federal Bureau of Investigation. A similar issue arises as a result of 2001 Iowa Acts, Senate File 476, which requires recent graduates to complete the Praxis II examination prior to the board’s issuing an initial license. A significant delay may occur between the time the examination is taken and the receipt of verification from the national testing service.

A waiver provision is not included. The Board has adopted a uniform waiver rule.

Any interested party or persons may present their views orally or in writing at the public hearing on Tuesday, January 8, 2002, at 1 p.m. in Room 3 North of the Grimes State Office Building, 400 East 14th Street, Des Moines, Iowa 50319.

At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of the proposed amendment. Persons who wish to make oral presentations at the public hearing may contact the Executive Director, Board of Educational Examiners, Grimes State Office Building, East 14th and Grand Avenue, Des Moines, Iowa 50319–0147, or at (515)281–5849, prior to the date of the public hearing.

Any person who intends to attend the public hearing and requires special accommodations for specific needs, such as a sign language interpreter, should contact the office of the Executive Director at (515)281–5849.

Any interested person may make written comments or suggestions on the proposed amendment before 4:30 p.m. on Wednesday, January 9, 2002. Written comments and suggestions should be addressed to Dr. Anne E. Kruse, Executive Director, Board of Educational Examiners, at the above address, or E–mailed to anne.kruse@ed.state.ia.us.

This amendment is intended to implement Iowa Code chapter 272.

The following amendment is proposed.

Amend rule 282—14.101(272) by adopting the following new subrule:

14.101(3) The executive director may issue a temporary permit to an applicant for any type of license, certification, or authorization issued by the board, after receipt of a fully completed application, including certification from the applicant of completion of the Praxis II examination, if required; determination that the applicant meets all applicable prerequisites for issuance of the license, certification, or authorization; and satisfactory evaluation of the Iowa criminal history background check. The temporary permit shall serve as evidence of the applicant’s authorization to hold a position in Iowa schools, pending the satisfactory completion of the national criminal history background check and the board’s receipt of verification of completion of the Praxis II examination. The temporary permit shall expire upon issuance of the requested license, certification, or authorization or 90 days from the date of issuance of the permit, whichever occurs first, unless the temporary permit is extended upon a finding of good cause by the executive director.

Pursuant to the authority of Iowa Code section 231C.3, the Department of Elder Affairs hereby gives Notice of Intended Action to amend Chapter 27, “Assisted Living Programs,” Iowa Administrative Code.

The proposed amendments are intended to add operational adjustments to be made to service plans, staffing levels and staffing skills when an assisted living program serves persons with dementia or cognitive impairment. Amendments to the occupancy criteria are intended to enhance informed decision making by consumers as well as to provide added protection for persons with dementia.

The proposed amendments to Chapter 27 will be subject to waiver.

Any interested person may make written suggestions or comments on the proposed amendments on or before January 3, 2002. Written comments should be directed to Mary Ann Young, Administrative Rules Coordinator, Department of Elder Affairs, 200 Tenth Street, Suite 300, Des Moines, Iowa 50309–3609.

Oral or written comments may be submitted at a public hearing on these amendments to be held at 10 a.m. on Thursday, January 3, 2002, in Room 316, Hotel Fort Des Moines, Tenth and Walnut, Des Moines, Iowa. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of these amendments.

Anyone who wishes to attend the hearing and has special requirements such as hearing, vision, or mobility impairments or other special needs should notify the Department of Elder Affairs no later than 4 p.m. on Thursday, December 29, 2001. Notice may be in writing or by telephone to (515) 242–3338.

These amendments are intended to implement Iowa Code chapter 231C.

The following amendments are proposed.

ITEM 1. Amend subrule 27.2(4) as follows:

27.2(4) Blueprint reviews for assisted living programs.

a. Blueprints must be reviewed prior to construction or remodeling of a building for use as an assisted living program.

b. The blueprint review fee must accompany the blueprints.

c. Blueprints must be wet–sealed by an Iowa–licensed architect or engineer and must include all supporting plumbing, electrical and mechanical system documentation. Other documentation that must be provided with the blueprints for review prior to construction or remodeling includes:

(1) The evacuation and emergency plan that covers all tenant use areas, including any secured outdoor areas;

(2) The product data and shop drawings for the fire alarm, smoke detection and sprinkler systems.

d. Blueprints, supporting documentation and the review fee are to be sent to Assisted Living Blueprint Review, Department of Elder Affairs, Clemens Building, Third Floor, 200 Tenth Street, Des Moines, Iowa 50309–3609.

ITEM 2. Amend rule 321—27.3(231C) as follows:

27.3(1)  Evaluation of tenant. Each assisted living program shall have written policies and procedures for the evaluation of each tenant’s functional and cognitive ability and health status and the determination of needed services prior to occupancy, within 30 days of occupancy, whenever significant changes in ability or health status occur and as needed, but not less than annually.

27.3(2) Signed agreement. Each tenant shall sign an occupancy agreement and managed risk statement prior to occupancy.

27.3(3) Occupancy and transfer criteria.

a. An assisted living program shall not knowingly admit or retain a tenant:

(1) Who requires more than part–time or intermittent health–related care, including, but not limited to, a person who requires:

4. Routine two–person assistance with positioning, transfer or evacuation; or

(2) Who is dangerous to self or others, including but not limited to, a tenant who:

2. Has a diagnosis of an active–stage contagious disease such as tuberculosis; or

(3) Who is medically unstable or in an acute stage of alcoholism, drug addiction, or mental illness;

(4) and (5) No change.

b. An assisted living program may have additional occupancy or transfer criteria if disclosed in writing prior to occupancy.

c. An assisted living program may request an exception to the provision of 27.3(3)“a”(1) in accordance with the requirements of 321—27.6(231C).

27.3(4) Transfer planning. The assisted living program shall assist a tenant who requires more services than the assisted living program is able to provide in making arrangements for care in an alternative setting.

ITEM 3. Amend subrule 27.4(1) as follows:

27.4(1) Service plan required.

a. An individualized service plan shall be developed for each tenant:

(1) In consultation with the tenant and, at the tenant’s request, with the family member(s) or designated responsible party;

(2) Prior to occupancy and updated at least annually or whenever changes in need are identified; and

(3) When the tenant needs personal care or health–related care, the service plan shall be developed in consultation with a multidisciplinary team, which consists of no less than three individuals, including a health care professional and a person with a bachelor’s degree in a human services–related field.

b. The service plan shall be individualized and shall indicate, at a minimum:

(1) The tenant’s identified needs and requests for assistance;

(2) Any services and care to be provided per agreement with tenant;

(3) The provider(s) if other than the assisted living program; and

(4) Transfer and referral arrangements for health care providers selected by each tenant. ; and

ITEM 4. Amend subrules 27.5(1) to 27.5(3) as follows:

27.5(1) Sufficient trained staff shall be available at all times to fully meet tenant’s identified needs. An assisted living program serving a person or persons with cognitive impairment or dementia shall have one or more staff persons awake and on duty 24 hours a day in the proximate area, who check on tenants as necessary to ensure their health and safety.

27.5(2) Each tenant shall have access to a 24–hour personal emergency response system that automatically identifies the tenant in distress and can be activated with one touch. An assisted living program that serves a tenant or tenants with cognitive impairment or dementia may have a system, program or staff procedure that responds to the emergency needs of a tenant or tenants with cognitive impairment or dementia in lieu of a personal emergency response system.

27.5(3) The owner or sponsor of the assisted living program is responsible for ensuring that both management and direct service employees receive training appropriate to the task assigned tasks. In an assisted living program that serves a person or persons with cognitive impairment or dementia, training for management and direct service employees shall include six hours of training on dementia prior to or within 60 days of employment. The training on dementia shall include, but not be limited to:

ITEM 5. Amend subrule 27.7(1) as follows:

27.7(1) Occupancy agreement.

a. The assisted living program shall enter into an occupancy agreement with each tenant for assisted living housing and services that clearly describes the rights and responsibilities of the tenant and of the provider.

b. The occupancy agreement shall also include, but not be limited to, the following:

(1) Description of all fees, charges and rates describing tenancy and basic services covered, any additional and optional services and related costs;

(2) Statement regarding the impact of the fee structure on third–party payments and whether third–party payments and resources will be accepted by the assisted living program;

(3) Procedure for nonpayment of fees;

(4) Identification of party responsible for payment of fees;

(5) Guarantee that the assisted living program will notify the tenant in writing at least 30 days in advance of any changes to the occupancy agreement and guarantee that all tenant information will be maintained in a confidential manner to the extent allowable under state and federal law;

(6) Occupancy and transfer criteria;

(7) Emergency response policy; and

(8) The staffing policy which identifies whether or not staff is available 24 hours a day, whether or not task delegation will be used, and how staffing will be adapted to changing tenant needs. ; and

Pursuant to the authority of Iowa Code section 455B.133, the Environmental Protection Commission hereby gives Notice of Intended Action to amend Chapter 20, “Scope of Title—Definitions—Forms—Rules of Practice,” Chapter 22, “Controlling Pollution,” Chapter 23, “Emission Standards for Contaminants,” and Chapter 25, “Measurement of Emissions,” Iowa Administrative Code.

Item 1 removes the reference to an application form for a variance to the Department’s open burning rules. The Department variance request form for an open burning variance is out of date and is no longer used. Deleting this reference does not prevent the use of the procedures for requesting a variance, specified in rule 21.2(455B).

In Item 2, subparagraph 22.1(1)“c”(4) is added which requires a notification to the Department for units where construction has started prior to the issuance of a construction permit. If a unit is built under paragraph 22.1(1)“c,” the owner or operator will not have a permit until after construction has already started or has been completed. The new subparagraph clarifies the notification requirement as to whether or not a permit is in the possession of an owner or operator taking advantage of constructing without an issued permit. The subparagraph requires a start construction notification within 30 days after starting construction, regardless of the permit issuance status.

Item 3 pertains to notifying the Department for intended startup and actual startup of permitted equipment. Item 3 establishes a more specific time at which the notification needs to be sent as well as what information needs to be provided to the Department. The change also makes the Department’s deadlines consistent with the deadlines in new source performance standards.

Item 4 is a corrective amendment. The Department’s staff has used the terms “total suspended particulate (TSP)” and “particulate matter (PM)” interchangeably in the rules. However, the two terms have different definitions as found in Chapter 20. According to Chapter 20, “particulate matter” means any material, except uncombined water, that exists in a finely divided form as a liquid or solid at standard condition. “Total suspended particulate” means particulate matter as measured by an EPA–approved reference method.

Item 5 clarifies that Title V fees are not required for particulate matter (excluding PM10). Particulate matter is not listed in the definition of “regulated air pollutant or contaminant (for fee calculation).” Without this listing in the definition, it is unclear which forms of particulate matter are subject to the Title V fees.

Item 6 is an administrative change. Subrule 22.101(1) discusses criteria that outline when Title V permits must be obtained. The subrule cites subrules 22.102(1) and 22.102(2) as exceptions to the need to apply for a Title V permit. Additional emission source categories that are exempt from having to obtain a Title V permit were added to rule 22.102(455B) in the past. However, the listing of these additional exemptions in subrule 22.101(1) had not been included to update the exemptions.

In addition to the source category exemptions to Title V permitting, any facility covered by a voluntary operating permit or an operating permit by rule for small sources is not required to apply for a Title V permit. These other permit options are recognized in the rule.

Item 7 clarifies whether a source subject to an NSPS or NESHAP must apply for a Title V permit. A literal interpretation of existing paragraph 22.201(2)“b” implies that once an NSPS or NESHAP is promulgated, that source is subject to Title V permit requirements even if the newly promulgated standard specifically exempts sources from Title V.

Item 8 pertains to exceptions to the eligibility requirements for the operating permit by rule for small sources. Subrule 22.300(3) identifies three cases when sources will be exempt from being able to obtain permit coverage under the operating permit by rule. Paragraph “a” addresses sources subject to acid rain requirements and solid waste incinerators; paragraph “b” addresses sources subject to new source performance standards (NSPS); and paragraph “c” addresses sources subject to national emission standards for hazardous air pollutants. The language in paragraphs “b” and “c” has been modified to clarify when sources would no longer be eligible for coverage by the operating permit by rule for small sources. Without this clarification, it could be assumed that as soon as EPA promulgates a NESHAP or NSPS for a particular source, that source would immediately not be eligible for coverage under the permit by rule for small sources.

Item 9 pertains to record–keeping requirements for an operating permit by rule for small sources. The proposed amendments to this paragraph are administrative. The changes correct a reference to the record keeping required for emission units and correct a reference to the required record keeping for emission control equipment. The proposed changes also address a problem in the use of inconsistent terms. The terms “emission control equipment” and “emission control unit” are being used interchangeably in paragraph 22.300(7)“c.” The amendments propose to change all of the references to “emission control units” to the term “emission control equipment” for consistency.

Item 10 provides an updated reference to standards of performance for new sources. Two new standards of performance for a new source (NSPS) have been incorporated into the proposed amendments in Item 11. These new NSPSs are for commercial and industrial solid waste incineration units and new small municipal waste combustion units.

Items 12 to 15 pertain to updating federally adopted emission standards for hazardous air pollutants. In Item 12, the reference date for adopting any amendments to the federal regulations over emission standards for hazardous air pollutants the Department has listed in subrule 23.1(4) has been updated to August 16, 2001, the most recent date for a new or modified NESHAP. Five new NESHAPs have been promulgated on the federal level since the last departmental rule update. Item 13 adopts by reference a NESHAP for chemical recovery combustion sources at kraft, soda, sulfite, and stand–alone semichemical pulp mills. Item 14 adopts by reference a NESHAP for secondary aluminum production. Three new NESHAPs are adopted in Item 15: emission standards for hazardous air pollutants for manufacturing of nutritional yeast; solvent extraction for vegetable oil production; and boat manufacturing.

Items 16, 17 and 18 allow the Department to update its references to federal regulations by incorporating changes made after the Department adopted the federal regulation by reference. The purpose of incorporating federal updates is to make the Department’s requirements consistent with current federal requirements.

Any person may make written suggestions or comments on the proposed amendments on or before January 25, 2002. Written comments should be directed to Monica Wnuk, Department of Natural Resources, Air Quality Bureau, 7900 Hickman Road, Suite 1, Urbandale, Iowa 50322; fax (515) 242–5094; or by electronic mail to Monica.Wnuk@dnr.state. ia.us.

A public hearing will be held on January 10, 2002, at 10:30 a.m. in Conference Rooms 3 and 4, Air Quality Bureau Office, 7900 Hickman Road, Urbandale, Iowa, at which time comments may be submitted orally or in writing. All comments must be received no later than January 25, 2002.

Any person who intends to attend the public hearing and has special requirements, such as those related to hearing or mobility, should contact Monica Wnuk at (515)281–7212 to advise of any specific needs.

These amendments are intended to implement Iowa Code section 455B.133.

The following amendments are proposed.

ITEM 1. Rescind and reserve subrule 20.3(2).

ITEM 2. Amend subrule 22.1(1), paragraph “c,” by adopting new subparagraph (4) as follows:

(4) The applicant must notify the department of the date that construction or reconstruction actually started. All notifications shall be submitted to the department in writing no later than 30 days after construction or reconstruction start–ed. All notifications shall include all of the information listed in 22.3(3)“b.”

ITEM 3. Amend subrule 22.3(3), paragraph “b,” as follows:

b. Each permit shall require list the requirements for notifying the department to be notified of the dates of intended startup, start of construction and at least ten days before the equipment or control equipment involved is placed in operation. The department shall also be notified in writing of the actual equipment startup. All notifications shall be in writing and include the following information:

ITEM 4. Amend rule 567—22.100(455B), definition of “regulated air pollutant,” numbered paragraph “6,” as follows:

6. With respect to Title V, total suspended particulate particulate matter, except for PM10, is not considered a regulated air pollutant for the purpose of determining whether a source is considered to be a major source.

ITEM 5. Amend rule 567—22.100(455B), definition of “regulated air pollutant or contaminant (for fee calculation),” as follows:

“Regulated air pollutant or contaminant (for fee calculation),” which is used only for purposes of rule 22.106(455B), means any “regulated air pollutant or contaminant” except the following:

1. Carbon monoxide;

2 3. Any pollutant that is a regulated air pollutant solely because it is a Class I or II substance subject to a standard promulgated under or established by Title VI of the Act;

3 4. Any pollutant that is a regulated pollutant solely because it is subject to a standard or regulation under Section 112(r) of the Act.

ITEM 6. Amend subrule 22.101(1), introductory paragraph, as follows:

22.101(1) Except as provided in subrules 22.102(1) and 22.102(2) rule 22.102(455B), any person who owns or operates any of the following sources shall obtain a Title V operating permit:

ITEM 7. Amend subrule 22.201(2), paragraph “b,” as follows:

b. Sources which are not major sources but subject to a standard or other requirement under 567—subrule 23.1(2) (standards of performance for new stationary sources) or Section 111 of the Act; or 567—subrule 23.1(3) (emissions standards for hazardous air pollutants), 567—subrule 23.1(4) (emissions standards for hazardous air pollutants for source categories) or Section 112 of the Act are eligible for a voluntary operating permit. These sources shall be required to obtain a Title V operating permit when the deferment period specified in 567—subrule 22.101(2) has expired or no longer applies, or a standard is promulgated under 40 CFR Part 60 or 63 to which the source is subject.

ITEM 8. Amend subrule 22.300(3), paragraphs “b” and “c,” as follows:

b. Sources which meet the registration criteria established in 22.300(2)“a” and meet all applicable requirements of rule 22.300(455B), and are subject to a standard or other requirement under 567—subrule 23.1(2) (standards of performance for new stationary sources) or Section 111 of the Act are eligible for an operating permit by rule for small sources. These sources shall be required to obtain a Title V operating permit when the deferment period specified in subrule 22.101(2) has expired or no longer applies. Sources subject to standards contained in Section 111 or 112 of the Act shall not be eligible to obtain a small source operating permit unless they are also exempted from Title V by rule 22.102(455B).

c. Sources which meet the registration criteria established in 22.300(2)“a” and meet all applicable requirements of rule 22.300(455B), and are subject to a standard or other requirement under 567—subrule 23.1(3) (emissions standards for hazardous air pollutants), 567—subrule 23.1(4) (emissions standards for hazardous air pollutants for source categories) or Section 112 of the Act are eligible for an operating permit by rule for small sources until the final promulgation of a federal standard under 40 CFR Part 60 or 40 CFR Part 63 to which the source is subject. These sources shall be required to obtain a Title V or voluntary operating permit when the deferment period specified in subrule 22.101(2) has expired or no longer applies.

ITEM 9. Amend subrule 22.300(7), paragraph “c,” as follows.

c. Record–keeping requirements for emission units and emission control equipment. Record–keeping requirements for emission units are specified below in 22.300(7)“c”(1) through 22.300(7)“c”(4). Record–keeping requirementsfor emission control equipment are specified in 22.300(7)“c”(5).

(1) Coating/solvent emission unit. The owner or operator of a stationary source subject to this rule that contains acoating/solvent emission unit not permitted under 22.8(1) (permit by rule for spray booths) or uses a coating, solvent, ink or adhesive shall keep and maintain the following rec–ords:

1. A current list of all coatings, solvents, inks and adhesives in use. This list shall include: material safety data sheets (MSDS), manufacturer’s product specifications, and material VOC content reports for each solvent (including solvents used in cleanup and surface preparation), coating, ink, and adhesive used showing at least the product manufacturer, product name and code, VOC and hazardous air pollutant content;

2. A description of any equipment used during and after coating/solvent application, including type, make and model; maximum design process rate or throughput; and control device(s) type and description (if any);

3. A monthly log of the consumption of each solvent (including solvents used in cleanup and surface preparation), coating, ink, and adhesive used; and

4. All purchase orders, invoices, and other documents to support information in the monthly log.

(2) Organic liquid storage unit. The owner or operator of a stationary source subject to this rule that contains an organic liquid storage unit shall keep and maintain the following records:

1. A monthly log identifying the liquid stored and monthly throughput; and

2. Information on the tank design and specifications including control equipment.

(3) Combustion emission unit. The owner or operator of a stationary source subject to this rule that contains a combustion emission unit shall keep and maintain the following records:

1. Information on equipment type, make and model, maximum design process rate or maximum power input/output, minimum operating temperature (for thermal oxidizers) and capacity and all source test information; and

2. A monthly log of fuel type, fuel usage, fuel heating value (for nonfossil fuels; in terms of Btu/lb or Btu/gal), and percent sulfur for fuel oil and coal.

(5) General emission unit. The owner or operator of a stationary source subject to this rule that contains an emission unit not included in subparagraph (1), (2), or (3) above shall keep and maintain the following records:

3. Purchase orders, invoices, or other documents to support information in the monthly log. Emission control equipment. The owner or operator of a stationary source subject to this rule that contains emission control equipment shall keep and maintain the following records:

ITEM 10. Amend subrule 23.1(2), introductory paragraph, as follows:

23.1(2) New source performance standards. The federal standards of performance for new stationary sources, as defined in 40 Code of Federal Regulations Part 60 as amended or corrected through November 24, 1998 August 14, 2001, and 40 CFR Part 503 as adopted on October 25, 1995 August 4, 1999, are adopted by reference, except § 60.530 through§ 60.539b (Part 60, Subpart AAA), and shall apply to the following affected facilities. The corresponding 40 CFR Part 60 subpart designation is in parentheses. Reference test methods (Appendix A), performance specifications (Appendix B), determination of emission rate change (Appendix C), quality assurance procedures (Appendix F) and the general provisions (Subpart A) of 40 CFR Part 60 also apply to the affected facilities.

ITEM 11. Amend subrule 23.1(2) by adopting the following new paragraphs “uuu” and “vvv”:

uuu. New small municipal waste combustion units. Unless exempted, this standard applies to a small municipal waste combustion unit that commenced construction after August 30, 1999, or small municipal waste combustion units that commenced reconstruction or modification after June 6, 2001. (Part 60, Subpart AAAA)

vvv. Commercial and industrial solid waste incineration. Unless exempted, this standard applies to units for which construction is commenced after November 30, 1999, or for which modification or reconstruction is commenced on or after June 1, 2001. (Part 60, Subpart CCCC)

ITEM 12. Amend subrule 23.1(4), introductory paragraph, as follows:

23.1(4) Emission standards for hazardous air pollutants for source categories. The federal standards for emissions of hazardous air pollutants for source categories, 40 Code of Federal Regulations Part 63 as amended through January 20, 2000 August 16, 2001, are adopted by reference, except those provisions which cannot be delegated to the states. The corresponding 40 CFR Part 63 subpart designation is in parentheses. 40 CFR Part 63 Subpart B incorporates the requirements of Clean Air Act Sections 112(g) and 112(j) and does not adopt standards for a specific affected facility. Test methods (Appendix A), sources defined for early reduction provisions (Appendix B), and determination of the fraction biodegraded (F_bio) in the biological treatment unit (Appendix C) of Part 63 also apply to the affected activities or facilities. For the purpose of this subrule, “hazardous air pollutant” has the same meaning found in 567—22.100(455B). For the purposes of this subrule, a “major source” means any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit, considering controls, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants, unless a lesser quantity is established, or in the case of radionuclides, where different criteria are employed. For the purpose of this subrule, an “area source” means any stationary source of hazardous air pollutants that is not a major stationary source as defined in this paragraph. Paragraph 23.1(4)“a,” general provisions (Subpart A) of Part 63, shall apply to owners or operators who are subject to subsequent subparts of 40 CFR Part 63 (except when otherwise specified in a particular subpart or in a relevant standard) as adopted by reference below.

ITEM 13. Amend subrule 23.1(4) by adopting new paragraph “am” as follows:

am. Emission standards for hazardous air pollutantsfor chemical recovery combustion sources at kraft, soda, sulfite, and stand–alone semichemical pulp mills. (Part 63, Subpart MM)

ITEM 14. Amend subrule 23.1(4) by adopting new paragraph “br” as follows:

br. Emission standards for hazardous air pollutants for secondary aluminum production. (Part 63, Subpart RRR)

ITEM 15. Amend subrule 23.1(4) by adopting new paragraphs “cc,” “cg” and “cv” as follows:

cc. Emission standards for hazardous air pollutants for the manufacturing of nutritional yeast. (Part 63, Subpart CCCC)

cg. Emission standards for hazardous air pollutants for solvent extraction for vegetable oil production. (Part 63, Subpart GGGG)

cv. Emission standards for hazardous air pollutants for boat manufacturing. (Part 63, Subpart VVVV)

ITEM 16. Amend subrule 23.1(5), introductory paragraph, as follows:

23.1(5) Emission guidelines. The emission guidelines and compliance times for existing sources, as defined in 40 Code of Federal Regulations Part 60 as amended through November 24, 1998 July 23, 2001, shall apply to the following affected facilities. The corresponding 40 CFR Part 60 subpart designation is in parentheses. The control of the designated pollutants will be in accordance with federal standards established in Sections 111 and 129 of the Act and 40 CFR Part 60, Subpart B (Adoption and Submittal of State Plans for Designated Facilities), and the applicable subpart(s) for the existing source. Reference test methods (Appendix A), performance specifications (Appendix B), determination of emission rate change (Appendix C), quality assurance procedures (Appendix F) and the general provisions (Subpart A) of 40 CFR Part 60 also apply to the affected facilities.

ITEM 17. Amend subrule 25.1(9) as follows:

25.1(9) Methods and procedures. Stack sampling and associated analytical methods used to evaluate compliance with emission limitations of 567—Chapter 23 or a permit condition are those specified in the “Compliance Sampling Manual*” adopted by the commission on May 19, 1977, as revised through March 14, 2001. Sampling methods, analytical determinations, minimum performance specifications and quality assurance procedures for performance evaluations of continuous monitoring systems are those found in Appendices A (as amended through March 12, 1996), B (as amended through December 15, 1994 September 30, 1999) and F (as amended through February 11, 1991) of 40 CFR Part 60, and Appendices A (as amended through May 22, 1996 July 12, 1999), B (as amended through May 17, 1995 July 12, 1999), and H (as amended through July 30, 1993 May 17, 1995) of 40 CFR Part 75.

*Available from department.

ITEM 18. Amend subrule 25.1(10), paragraph “a,” as follows:

a. An affected source is subject to a new source performance standard promulgated in 40 CFR Part 60 as amended through November 24, 1998 August 14, 2001.

Pursuant to the authority of Iowa Code section 455B.304, the Environmental Protection Commission hereby gives Notice of Intended Action to amend Chapter 102, “Permits,” and to adopt new Chapter 109, “Special Waste Authorizations,” Iowa Administrative Code.

The proposed amendments establish a separate chapter for special waste authorizations in order to make the rules more visible and easier to locate. The proposed amendments also require landfills that accept special waste to prepare special waste acceptance criteria (SWAC) which are submitted to the Department. The SWAC will identify the special handling practices that must be followed by the landfill operators at each specific landfill, by waste haulers and by generators of special waste. The existing rule requires Department staff to make decisions on how special waste should be handled. The proposed rules transfer that responsibility to the landfill managers and operators who are familiar with the landfill’s operation and more capable of making those decisions.

Any interested party may make written suggestions or comments about the proposed amendments on or before January 4, 2002. Such written comments should be directedto Jim Thayer, Waste Management Assistance Division,Department of Natural Resources, Wallace State Office Building, Des Moines, Iowa 50319–0034; fax (515)281– 8895; E–mail jim.thayer@dnr.state.ia.us. Persons who wish to convey their views orally should contact Jim Thayer at (515)281–3426 or at the Division offices on the fifth floor of the Wallace State Office Building, 502 East Ninth Street, Des Moines, Iowa.

A public hearing will be held on January 3, 2002, at 1 p.m. in the Fifth Floor Conference Room of the Wallace State Office Building at which time persons may present their views on the proposed amendments either orally or in writing. At the hearing, persons wishing to speak will be asked to give their names and addresses for the record and to confine their comments to the subject of the proposed amendments.

Any persons who intend to attend the public hearing and have special needs such as those related to hearing or mobility impairments should contact the Department of Natural Resources at (515)281–4968 and advise of specific needs.

These amendments are intended to implement Iowa Code section 455B.304.

The following amendments are proposed.

ITEM 1. Rescind and reserve rule 567—102.15(455B).

ITEM 2. Adopt the following new 567—Chapter 109:

CHAPTER 109
SPECIAL WASTE AUTHORIZATIONS

567—109.1(455B,455D) Purpose. The purpose of this chapter is to implement Iowa Code section 455B.304 and chapter 455D by providing rules for the disposal of special waste. The intent of these rules is to provide safe and proper management for disposal of special waste.

567—109.2(455B,455D) Special waste authorization required. No special wastes shall be delivered to or accepted by a municipal solid waste landfill unless disposal is authorized by a special waste authorization (SWA) issued by the department. Wastes for which an SWA has been issued shall be disposed of in accordance with the instructions, conditions, and limitations contained in the SWA.

“General special waste” means petroleum contaminated soil, asbestos containing waste and other wastes that are explicitly listed in a landfill’s permit and included in a landfill’s special waste acceptance criteria (SWAC).

“Industrial process waste” means waste that is generated as a result of manufacturing activities, product processing or commercial activities. It does not include office waste, cafeteria waste, or other types of waste that are not the direct result of production processes.

“Municipal solid waste landfill” or “MSWLF” means a discrete area of land or an excavation that receives household waste, and that is not a land application site, surface impoundment, injection well, or waste pile, as those termsare defined under 40 CFR Part 257.2. An MSWLF may also receive other types of the federal Resource Conservation and Recovery Act (RCRA) Subtitle D wastes, such as commercial solid waste, nonhazardous dry sludge, and industrial solid waste. An MSWLF may be publicly or privately owned. An MSWLF may be a new MSWLF site, an existing MSWLF site, or a lateral expansion.

“Pollution control waste” means any solid waste residue extracted by, or resulting from, the operation of pollution control processes.

“Solid waste” is defined in Iowa Code section 455B.301.

“Special handling” means a specific procedure required for handling certain waste to protect the health and safety of employees, the public and the environment.

“Special waste” means any industrial process waste, pollution control waste, or toxic waste which presents a threat to human health or the environment or a waste with inherent properties which make the disposal of the waste in a sanitary landfill difficult to manage. Special waste does not include domestic, office, commercial, medical, or industrial waste that does not require special handling or limitations on its disposal. Special waste does not include hazardous wastes which are regulated under the federal Resource Conservation and Recovery Act (RCRA), hazardous waste as defined in Iowa Code section 455B.411, subsection 3, or hazardous wastes included in the list compiled in accordance with Iowa Code section 455B.464.

“Toxic wastes” means materials containing poisons, biocides, acids, caustics, pathological wastes, and similar harmful wastes which may require special handling and disposal procedures to protect the environment and the persons involved in the storage, transport, and disposal of the wastes.

567—109.4(455B,455D) Types of special wastes. General special wastes are asbestos containing material, petroleum contaminated soil and other wastes that are explicitly listed in a landfill’s permit and included in the landfill’s SWAC but do not require an SWA.

Those specific wastes that are not listed in a landfill’s permit but are included in the landfill’s SWAC will be called special waste.

109.5(1) Generators of special waste shall make application for an SWA by submitting the form “Request for Special Waste Authorization” accompanied by supporting data as required by the department. Two copies shall be submitted to the department, and the department will forward one of the copies to the disposal site after the department review process is completed. The application shall include the following information:

a. Appropriate chemical analysis of the waste,

b. Physical form of the waste,

c. Weight or volume of the waste,

d. Material safety data sheet (MSDS),

e. Toxicity characteristic leachate procedure (TCLP) test results when appropriate, which show that none of the federal limits in 40 CFR Part 261 are exceeded, and

f. Any other information requested by the department.

109.5(2) Additional requirements.

a. The waste shall not contain free liquids as defined at 567—100.2(455B,455D). The point of compliance shall be the working face.

b. The waste shall not be a listed hazardous waste or meet the criteria for characteristic hazardous waste pursuant to the federal Resource Conservation and Recovery Act (RCRA) (40 CFR Part 261).

c. Wastes with PCB concentrations equal to or greater than 50 ppm shall not be authorized for disposal at a landfill.

d. Polynuclear aromatic hydrocarbon (PAH) (SW 846 Methods 8270 and 8310) contaminated soil will not be authorized for disposal at a landfill if the total PAH level exceeds 500 ppm for the following compounds: acenaphthene, acenaphthylene, anthracene, benzo(a)anthracene, benzo(a)pyrene, benzo(b)fluornathene, benzo(g,h,i)perylene, benzo(k)fluoranthene, chrysene, dibenzo(a,h)anthracene, fluoranthene, fluorine, indeno(1,2,3-cd)pyrene, naphalene, phenanthrene, and pyrene or if the total carcinogenic PAH level exceeds 200 ppm for the following compounds: benzo(a)anthracene, benzo(a)pyrene, benzo(b)fluoranthene, benzo(k)fluoranthene, chrysene, dibenzo(a,h)anthracene, and indeno(1,2,3-cd)pyrene or if the cyanide level exceeds 1,000 ppm.

e. Special waste authorizations may be issued for a period not to exceed three years.

109.6(1) The department may revoke an SWA for cause at any time. Such cause may include, but is not limited to, evidence that indicates the characteristics of the authorized quality of the waste vary from the authorized values, evidence that the continued disposal of the waste as authorized may pose a threat to the public health or the environment, or failure to comply with any condition in the SWA or the landfill’s special waste acceptance criteria (SWAC).

109.6(2) The holder of an SWA must apply for a renewal at least 30 days prior to the expiration of the SWA.

109.6(3) The issuance of an SWA does not obligate any waste disposal facility to accept the wastes nor does it preclude the facility from imposing conditions or restrictions other than those listed in the SWA.

109.6(4) The issuance of an SWA does not exempt the party disposing of the waste from any local, state, or federal laws or regulations.

109.7(1) Any public or private municipal solid waste landfill that refuses any particular solid waste type for management or disposal must identify another waste management facility for that waste within the planning area. In the case of special waste, if no other waste management facility for that waste type exists within the planning area, the city or county, in cooperation with the waste generator, must establish or arrange access to one.

109.7(2) All municipal solid waste landfills shall submit special waste acceptance criteria (SWAC) to the department. The SWAC shall list the different kinds of special waste that each landfill (facility specific) will accept and the instructions for disposal for each of those wastes. The SWAC shall be submitted within 90 days after the effective date of these rules. The SWAC shall be submitted on forms provided by the department.

109.7(3) Landfills are required to ensure that special wastes delivered to the facility conform to the SWAC on file with the department.

109.7(4) Each municipal solid waste landfill shall provide to the department, on a quarterly basis, a report of SWA activity including each SWA number and the quantities of waste disposed of during the reporting period. This information shall be submitted as part of the Quarterly Solid Waste Fee Schedule and Retained Fees Report, Form 542–3276.

567—109.8(455B,455D) Special waste generator responsibilities. Special waste generator responsibilities shall include, but are not limited to, the following:

109.8(1) Prior to submission of an SWA application, the generator shall adhere to the solid waste management hierarchy. Alternatives include volume reduction at the source; recycling and reuse, including composting and land application; and other approved techniques of solid waste management including, but not limited to, combustion with energy recovery and combustion for waste disposal. The generator shall include, as part of the SWA application, a description of the review of the alternatives to landfilling for each waste for which an SWA is requested. The description should detail to what extent the waste could be recycled, reduced or reused so that landfilling is not necessary.

109.8(2) The generator shall follow the guidelines for submission of an SWA application as given in 109.5(455B,455D).

109.8(3) The generator shall ensure that special waste coming into the landfill shall arrive as a separate load and not be commingled with any other waste.

109.8(4) The generator shall submit analytical results supporting an SWA at a frequency to be determined by the landfill.

109.8(5) After receiving an SWA, the generator must contact the designated landfill for instructions on delivering the waste and instructions for adhering to the landfill’s SWAC.

109.8(6) Prior to disposal of any special wastes, the generator shall notify the department and landfill of any change in the characteristics of the special wastes.

109.8(7) Generators shall notify the landfill in writing when a one–time disposal under an SWA has been completed. This requirement is for one–time disposals only.

These rules are intended to implement Iowa Code section 455B.304.

Pursuant to the authority of Iowa Code sections 17A.3(1)“a” and 217.6, the Department of Human Services proposes to amend Chapter 1, “Departmental Organization and Procedures,” and Chapter 3, “Department Procedures for Rule Making,” appearing in the Iowa Administrative Code.

These amendments describe the new field operations service delivery structure and revise the locations for oral proceedings regarding proposed rules directly affecting indigent clients to correspond to the new structure.

Executive Order Number 24 mandated an across–the–board cut of 4.3 percent in state funding for all appropriations. If the Department were to accomplish the necessary reductions under the existing structure, there would be a significant reduction to line staff. This new structure enables the Department to minimize the impact on line staff by reducing and streamlining the supervisory and support structure. Under the new structure:

• The five regional offices and the 38 existing county clusters will be replaced by eight service areas. The positions of the regional administrators and the human services area administrators will be eliminated. A Service Area Manager, who will report directly to the Deputy Director for Field Operations, will head the service areas. The Service Area Manager will have a core management team consisting of a social work supervisor, an income maintenance supervisor, a community liaison, a personnel and business management specialist, a quality assurance consultant, and a secretary.

The service area staff will be located in local offices within the service delivery area, with the main local offices being in the following locations: Ames, Marshalltown or Fort Dodge; Cedar Rapids; Council Bluffs; Davenport; Des Moines; Dubuque; Mason City or Waterloo; and Sioux City. The primary reason for selecting these locations is that they will likely have the larger concentration of staff. The service area staff will be expected to travel frequently to all of the offices in the service area to maintain strong contact with staff and community partners.

The Department is consulting with county boards of supervisors about service area boundaries and ways of ensuring client access to services. The Department may make some adaptations to the proposed service area boundaries provided that the adaptations do not create a significant impact on client service, staffing, or budget. The configuration of the service areas is a means by which the Department organizes and manages its staff and resources across the entire state. The boundaries of the service areas also enable the Department to define who will be responsible for relationships with county boards, decategorization boards, empowerment boards and other groups. A proposed map follows.

The Department reviewed many service area configurations including historical Department areas, other state agency areas, judicial boundaries and current county partnerships. Because common service areas do not exist, it is particularly difficult to determine that any single other boundary is relevant for the state’s human service delivery system. As an example, the Department coordinates and interfaces with many other systems (such as education, judiciary, workforce development, area aging agencies, correctional, mental health). The Department also took into account commerce patterns, historical county relationships, population, and the Department’s resources. The proposed service area boundaries maintain the majority of the Department’s existing county cluster boundaries (only 9 of the 38 county clusters are modified).

• An estimated additional 37 local county offices are projected to become less than full–time offices. Given the increasing high demands and reduced resources, the Department will no longer be able to maintain full–time offices in counties with less than five income maintenance and social work staff. The Department will consult with county boards of supervisors and other community partners to determine the best way to transition the 37 county offices to less than full–time offices and ensure client accessibility to the Department’s services.

Currently the Department’s supervisors, protective assessment workers, adoption workers and other staff drive to various offices. At times service and income maintenance staff drive to other offices to provide coverage when there is a critical need. Under this structure, clients may go to the location where the staff are based, or the income maintenance and service staff will travel to the less than full–time office. The amount of travel will be dependent upon the alternative strategies to ensure client accessibility and the number of days a week that the Department needs to be face to face with clients in the less than full–time offices.

There have been no easy decisions in dealing with the magnitude of the significant reduction in funding. The Department’s first priority is to maintain frontline workers, supervisors, and support staff. In addition, the Department had to address the emphasis on larger spans of control for managers and the need to provide basic training and consultation and other business functions such as child care licensing and purchase of service contracting.

The Department is proud of the leadership and support it has been able to provide in the development of community response to human service issues. The Department wants to stay as involved as it can, but it will no longer be able to provide the same level of time to this effort as it once did, not because it does not want to, but because it simply will not have the staff to do so. Delivery of services to clients must be the Department’s first priority.

It is to be understood that wherever the term “district office” or “regional office” appears in the Department’s rules, the term “service area” shall now apply. Wherever the term “regional administrator,” “district administrator,” “human services area administrator” or “area administrator” appears, the term “service area manager or designee” shall apply.

These amendments do not provide for waivers because the amendments do allow for flexibility in establishing the service areas and hours of operation of the less than full–time offices.

The substance of these amendments is also Adopted and Filed Emergency and is published herein as ARC 1155B. The purpose of this Notice is to solicit comment on that submission, the subject matter of which is incorporated by reference.

Consideration will be given to all written data, views, and arguments thereto received by the Office of Policy Analysis, Department of Human Services, Hoover State Office Building, 1305 East Walnut, Des Moines, Iowa 50319–0114, on or before January 2, 2002.

Oral presentations may be made by persons appearing at the following meetings. Written comments will also be accepted at these times.

Ames – January 3, 2002 10 a.m.

Story County Office

Second Floor Conference Room

126 South Kellogg Street

Ames, Iowa 50010

Cedar Rapids – January 3, 2002 10 a.m.

Iowa Building – Suite 600

Sixth Floor Conference Room

411 Third Street S.E.

Cedar Rapids, Iowa 52401

Council Bluffs – January 4, 2002 10 a.m.

Community Hall

205 South Main Street

Council Bluffs, Iowa 51501

Davenport – January 4, 2002 10 a.m.

Bicentennial Building

Fifth Floor Conference Room

428 Western Avenue

Davenport, Iowa 52801

Des Moines – January 3, 2002 10 a.m.

City View Plaza

Conference Room 104

1200 University

Des Moines, Iowa 50314

Dubuque – January 2, 2002 10 a.m.

Dubuque County DHS Office

Town Clock Plaza

Nesler Center, Suite 410 Conference Room

Dubuque, Iowa 52001

Fort Dodge – January 4, 2002 1:30 p.m.

Webster County DHS Office

330 1st Avenue North

Fort Dodge, Iowa 50501

Marshalltown – January 3, 2002 1:30 p.m.

Fisher Community Center

709 South Center Street

Marshalltown, Iowa 50158

Mason City – January 4, 2002 10 a.m.

Cerro Gordo County DHS Office

Mohawk Square, Liberty Room

22 North Georgia Avenue

Mason City, Iowa 50401

Sioux City – January 2, 2002 1:30 p.m.

Woodbury County DHS Office

Fourth Floor ICN Room

822 Douglas

Sioux City, Iowa 51101

Waterloo – January 3, 2002 10 a.m.

Black Hawk County Office

Pinecrest Office Building

Conference Room 201

1407 Independence Avenue

Waterloo, Iowa 50703

Any persons who intend to attend a public hearing and have special requirements such as hearing or vision impairments should contact the Office of Policy Analysis at (515)281–8440 and advise of special needs.

These amendments are intended to implement Iowa Code section 17A.3(1)“a” and section 217.42 as amended by 2001 Iowa Acts, House File 764, section 1.

Pursuant to the authority of Iowa Code subsection 239B.4(4), the Department of Human Services proposes to amend Chapter 41, “Granting Assistance,” Chapter 46, “Overpayment Recovery,” and Chapter 93, “PROMISE JOBS Program,” appearing in the Iowa Administrative Code.

On August 22, 1996, President Clinton signed into law Public Law 104–193, the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996. The new law replaced the Aid to Families with Dependent Children (AFDC) program with a new block grant program to states, called Temporary Assistance for Needy Families (TANF). TANF provides funding to states for a number of assistance programs, including Iowa’s Family Investment Program (FIP) and the PROMISE JOBS work and training program.

As a result of Public Law 104–193, all states must limit TANF–funded cash assistance to a 60–month lifetime limit beginning with the dates on which states implemented TANF. However, federal law and regulations allow states the option of extending TANF–funded assistance beyond 60 months for families with hardship circumstances.

Current rules for providing FIP beyond 60 months require that requests for hardship exemptions and resulting six–month family investment agreements (FIA) be handled by a family support team made up of income maintenance, services, PROMISE JOBS, and Family Development and Self–Sufficiency (FaDSS) staff when FaDSS is involved with the family. After receiving information from all specified case workers involved with the family, the family support team was to meet with the family, determine eligibility for the hardship exemption, develop with the family the six–month FIA, and determine the method for monitoring the family’s progress.

These amendments provide for hardship exemption eligibility to be determined by the local income maintenance staff and for the six–month FIA to be developed by the family and PROMISE JOBS staff, similar to the way that regular FIP eligibility is determined and FIAs are administered.

Specifically, these amendments:

• Add a cross reference to the FIP hardship exemption rules in 441—subrule 41.24(2) identifying persons exempt from referral to PROMISE JOBS.

• Remove the reference to a family support team’s, appointed by regional administrators or the director’s designees, determination of eligibility for a hardship exemption for FIP beyond 60 months. Under these amendments, eligibility for a hardship exemption for FIP beyond 60 months shall be determined by income maintenance based upon information asserting a hardship barrier and supporting evidence provided by the family.

• Remove the reference to the requirement that families requesting a hardship exemption to FIP beyond 60 months meet face to face with a family support team. Under these amendments, the family shall meet as described below or in the ordinary course of business for approval of an application or for a regularly scheduled face–to–face case review.

• Remove the reference that income maintenance shall determine a hardship exemption when the family support team is unable to reach consensus. Under these amendments, income maintenance shall make all hardship exemption determinations.

• Remove the reference to the family support team assisting the family to develop a six–month family investment agreement (FIA). Under these amendments, PROMISE JOBS shall assist the family in developing the six–month FIA.

• Remove references to the family support team determining the method for monitoring the six–month FIA and making periodic contacts with the family. Under these amendments, PROMISE JOBS shall determine the method for monitoring the six–month FIA and how periodic contacts shall be made.

• Amend the definition of “procedural error” to remove the reference to 441—subrule 41.30(3) regarding the required face–to–face meetings. The definition of “procedural error” is further amended to include failure to secure a properly signed hardship exemption request form.

• Add a cross reference to the FIP hardship exemption rules in 441—subrule 93.111(1) concerning PROMISE JOBS assessments and activities.

These amendments do not provide for waivers in specific situations. Eligibility for a hardship exemption is determined based on the individual family’s circumstances and the decision is appealable. The exemption is a waiver to the 60–month FIP limit.

The substance of these amendments is also Adopted and Filed Emergency and is published herein as ARC 1159B. The purpose of this Notice is to solicit comment on that submission, the subject matter of which is incorporated by reference.

Consideration will be given to all written data, views, and arguments thereto received by the Office of Policy Analysis, Department of Human Services, Hoover State Office Building, 1305 East Walnut, Des Moines, Iowa 50319–0114, on or before January 2, 2002.

These amendments are intended to implement Iowa Code chapter 239B.

Pursuant to the authority of Iowa Code section 234.6, the Department of Human Services proposes to amend Chapter 153, “Social Services Block Grant and Funding for Local Services,” appearing in the Iowa Administrative Code.

Executive Order Number 24 mandated an across–the–board cut of 4.3 percent in state funding for all appropriations. The following amendment is intended to implement the mandated reduction in appropriation for state payment cases by reducing the spending obligations of the Department for state payment cases effective December 1, 2001, for the remainder of fiscal year 2002 and until changed. The state’s financial situation is not expected to improve in fiscal year 2003.

This amendment reduces payment to providers of service to State Payment Program clients by 4.3 percent. The State Payment Program received a 16 percent budget cut effective July 1, 2001. It is anticipated the program will recoup most of that cut through program members’ becoming eligible for the Medicaid Adult Rehabilitation Option funding and, thereby, eliminating or reducing their need for State Payment Program funding. An across–the–board cut to all State Payment Program provider rates is the most equitable and practical means of implementing the 4.3 percent budget cut. Other ways of dealing with the budget cuts were considered, such as restricting program eligibility or restricting the delivery of certain services, but were rejected due to inequity of treatment of counties and clients.

This percentage reduction will result in a total state savings of $355,000 for the remainder of state fiscal year 2002 ($130,000 from MR/DD service providers, $200,000 from Iowa Plan providers, and $25,000 from administrative fees paid to the Iowa Plan contractor).

This amendment does not provide for waivers in specified situations because of the underlying budget constraints. Needed savings would not be achieved if waivers were provided.

The substance of this amendment is also Adopted and Filed Emergency and is published herein as ARC 1165B. The purpose of this Notice is to solicit comment on that submission, the subject matter of which is incorporated by reference.

Consideration will be given to all written data, views, and arguments thereto received by the Office of Policy Analysis, Department of Human Services, Hoover State Office Building, 1305 East Walnut, Des Moines, Iowa 50319–0114, on or before January 2, 2002.

This amendment is intended to implement Iowa Code section 234.6(6).

Pursuant to the authority of Iowa Code sections 147.76 and 272C.3, the Board of Psychology Examiners hereby gives Notice of Intended Action to amend Chapter 240, “Licensure of Psychologists,” Iowa Administrative Code.

The proposed amendments pertain to training on mandatory reporting for child abuse and dependent adult abuse.

Any interested person may make written comments on the proposed amendments no later than January 2, 2002, addressed to Ella Mae Baird, Professional Licensure Division, Department of Public Health, Lucas State Office Building, Des Moines, Iowa 50319–0075.

A public hearing will be held on January 2, 2002, from9 to 11 a.m. in the Professional Licensure Conference Room, Lucas State Office Building, at which time persons may present their views either orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of the proposed amendments.

These amendments are intended to implement Iowa Code chapters 147 and 272C.

The following amendments are proposed.

ITEM 1. Amend rule 645—240.1(154B) by adopting the following new definition in alphabetical order:

“Mandatory training” means training on identifying and reporting child abuse or dependent adult abuse required of psychologists who are mandatory reporters. The full requirements on mandatory reporting of child abuse and the training requirements are found in Iowa Code section 232.69. The full requirements on mandatory reporting of dependent adult abuse and the training requirements are found in Iowa Code section 235B.16.

ITEM 2. Amend subrule 240.11(2) by relettering paragraphs “b” to “d” as “h” to “j” and adopting the following new paragraphs “b” to “g”:

b. A licensee who regularly examines, attends, counsels or treats children in Iowa shall indicate on the renewal application completion of two hours of training in child abuse identification and reporting in the previous five years or condition(s) for waiver of this requirement as identified in paragraph “f.”

c. A licensee who regularly examines, attends, counsels or treats adults in Iowa shall indicate on the renewal application completion of two hours of training in dependent adult abuse identification and reporting in the previous five years or condition(s) for waiver of this requirement as identified in paragraph “f.”

d. A licensee who regularly examines, attends, counsels or treats both adults and children in Iowa shall indicate on the renewal application completion of training in abuse identification and reporting in dependent adults and children in the previous five years or condition(s) for waiver of this requirement as identified in paragraph “f.”

Training may be completed through separate courses as identified in paragraphs “b” and “c” or in one combined two–hour course that includes curricula for identifying and reporting child abuse and dependent adult abuse.

e. The licensee shall maintain written documentation for five years after mandatory training as identified in paragraphs “b” to “d,” including program date(s), content, duration, and proof of participation.

f. The requirement for mandatory training for identifying and reporting child and dependent adult abuse shall be suspended if the board determines that suspension is in the public interest or that a person at the time of license renewal:

(1) Is engaged in active duty in the military service of this state or the United States.

(2) Holds a current waiver by the board based on evidence of significant hardship in complying with training requirements, including waiver of continuing education requirements or extension of time in which to fulfill requirements due to a physical or mental disability or illness as identified in 645—Chapter 241.

g. The board may select licensees for audit of compliance with the requirements in paragraphs “b” to “f.”

Pursuant to the authority of Iowa Code sections 421.17(19) and 422.68, the Department of Revenue andFinance hereby gives Notice of Intended Action to amend Chapter 17, “Exempt Sales,” Chapter 18, “Taxable and Exempt Sales Determined by Method of Transaction or Usage,” Chapter 34, “Vehicles Subject to Registration,” Chapter86, “Inheritance Tax,” Chapter 105, “Hotel and Motel—Imposition of Tax,” Chapter 107, “Local Option Sales and Service Tax,” and Chapter 108, “Local Option School Infrastructure Sales and Service Tax,” Iowa Administrative Code.

Item 1 amends rule 701—17.1(422,423) to implement 2001 Iowa Acts, House File 736, section 2, which provides a different standard for educational, religious and charitable activities to qualify for exemption from sales tax.

Item 2 amends rule 701—17.11(422,423) to implement 2001 Iowa Acts, House File 736, section 3, which provides a different exemption standard for private nonprofit educational institutions.

Item 3 amends 701—Chapter 17 to implement 2001 Iowa Acts, House File 736, section 4, which provides an exemption from sales tax for art centers.

Item 4 amends rule 701—18.52(422,423) by implementing 2001 Iowa Acts, House File 723, which expands the exemption from sales tax for the sale or rental of agricultural irrigation equipment.

Item 5 amends 701—subrule 34.5(9) by implementing 2001 Iowa Acts, House File 736, section 7, which expands the exemption of sales tax for certain business transfers of vehicles to include limited liability companies.

Item 6 amends 701—paragraph 86.2(1)“a” to implement 2001 Iowa Acts, Senate File 523, section 1, which increases the filing requirement for inheritance tax to $25,000.

Item 7 amends 701—paragraph 86.5(12)“b” by implementing 2001 Iowa Acts, House File 736, section 20, which expands the exemption from inheritance tax for lump–sum as well as installment payments from employee pensions or retirement plans.

Item 8 amends rule 701—105.2(422A) to implement 2001 Iowa Acts, House File 715, section 12, which provides for different notice requirements for hotel/motel tax.

Item 9 amends 701—paragraph 107.2(2)“a” to implement 2001 Iowa Acts, House File 715, section 14, to provide for a continuation provision for local option tax.

Item 10 amends rule 701—107.9(422B,422E) to implement 2001 Iowa Acts, House File 715, sections 13 and 16, to change the local option tax exemption on sales of motor fuels and special fuels.

Item 11 adopts rule 701—107.16(422B) to implement 2001 Iowa Acts, House File 715, section 15, to set forth a provision governing contractor refunds.

Items 12 and 13 adopt 701—107.17(422B) and amend 701—108.4(422E), respectively, to implement 2001 Iowa Acts, House File 739, regarding the application of revenues from local option taxes. Item 13 amends subrule 701— 108.4(422E) to incorporate additional rules in 701—Chapter 107 that apply to school infrastructure local option tax.

The proposed amendments may not necessitate additional expenditures by political subdivisions or agencies and entities which contract with political subdivisions. If additional expenditures by political subdivisions or agencies and entities become necessary, they would be de minimus.

Any person who believes that the application of the discretionary provisions of these amendments would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any.

The Department has determined that these proposed amendments may have an impact on small business. The Department has considered the factors listed in Iowa Code section 17A.4A. The Department will issue a regulatory analysis as provided in Iowa Code section 17A.4A if a written request is filed by delivery or by mailing postmarkedno later than January 14, 2002, to the Policy Section, Compliance Division, Department of Revenue and Finance,Hoover State Office Building, P.O. Box 10457, Des Moines, Iowa 50306. The request may be made by the Administrative Rules Review Committee, the Administrative Rules Coordinator, at least 25 persons signing that request who each qualify as a small business or an organization representing at least 25 such persons.

Any interested person may make written suggestions or comments on these proposed amendments on or before January 11, 2002. Such written comments should be directed to the Policy Section, Compliance Division, Department of Revenue and Finance, Hoover State Office Building, P.O. Box 10457, Des Moines, Iowa 50306.

Persons who want to convey their views orally should contact the Policy Section, Compliance Division, Department of Revenue and Finance, at (515)281–4250 or at the Department of Revenue and Finance offices on the fourth floor of the Hoover State Office Building.

Requests for a public hearing must be received by January 4, 2002.

These amendments are intended to implement Iowa Code chapter 15 and section 76.4 as amended by 2001 Iowa Acts, House File 739; sections 422.45(3) and 422.45(8) as amended by 2001 Iowa Acts, House File 736, sections 2 and 3; section 423.4(9) as amended by 2001 Iowa Acts, House File 736, section 7; and 450.4(5) as amended by 2001 Iowa Acts, House File 736, section 20; and 2001 Iowa Acts, House File 736, section 4.

The following amendments are proposed.

ITEM 1. Amend rule 701—17.1(422,423) as follows:

Amend the introductory paragraph as follows:

701—17.1(422,423) Gross receipts expended for educational, religious, and charitable purposes. Prior to July 1, 2001, Net net proceeds of an organization are exempt to the extent such proceeds are expended for educational, religious, or charitable purposes, except receipts from games of skill, games of chance, raffles, and bingo. Iowa Code section 422.45(3) requires that the activity from which the proceeds are derived must be from sales of educational, religious, or charitable activities and that the net proceeds be expended on these types of qualifying activities to be exempt from sales tax. For the purposes of determining if net proceeds are exempt from tax under this rule, subsequent to the sales event, the department analyzes the activities and the extent to which the net proceeds are expended on such activities. Net proceeds are exempt from sales tax to the extent that they are expended on educational, religious, or charitable activities.

Adopt the following new subrule:

17.1(6) Taxability of profits on or after July 1, 2001. Effective July 1, 2001, gross receipts from the sale or rental of tangible personal property or services in which the profits are used or donated to a qualifying nonprofit entity are exempt from Iowa sales or use tax. The profits must be expended on educational, religious, or charitable activities in order for the sales transactions to be exempt from sales tax. For the purposes of determining if sales transactions are exempt from tax under this rule, the department determines the extent to which the profits are expended. Sales transactions are exempt from sales tax to the extent that profits are expended on educational, religious, or charitable purposes.

This exemption does not apply to the gross receipts from games of skill, games of chance, raffles, and bingo games as defined in Iowa Code chapter 99B.

a. To qualify for exemption from tax, all of the following criteria must be met:

(1) The gross receipts and profits must be from a retail sale of tangible personal property or taxable services;

(2) The profits from the sale must be used by or donated to one of the following:

1. An entity that is exempt from federal income tax under Internal Revenue Code Section 501(c)(3);

2. A government entity; or

3. A private nonprofit educational institution;

(3) The exemption is allowed to the extent that the profits are expended for any of the following purposes:

1. Educational. For purposes of this rule, “educational” means any of the following:

• The acquisition of knowledge tending to develop and train the individual.

• An activity that has as its primary purpose to educate by teaching.

• An activity that has as its primary objective to give educational instruction.

• An activity for which the educational process is not merely incidental.

• An activity where the purpose is systematic instruction.

The term “educational purpose” is synonymous with “educational undertaking,” and, therefore, it can include recreational activities as well as an activity designed to offer culture to the public. Activities which are directly related to the educational process such as intramural sports and tests given to students or prospective students to measure intelligence, ability, or aptitude are considered educational for purposes of the exemption found in Iowa Code section 422.45(3). Municipal or civic science centers and libraries are also considered educational for purposes of the exemption.

EXAMPLE 1: Little Folks, a local nonprofit preschool that is exempt from federal tax under IRC Section 501(c)(3), has a chili supper to raise money for playground equipment, educational materials, and classroom furniture. The sales transactions from the supper are exempt from sales tax because the total amount of the profits from the chili supper will be used for educational purposes. In addition, purchases made by the preschool may be exempt from tax if the preschool can meet the qualifications to be classified as a private nonprofit educational institution. See 701—17.11(422,423) for additional information regarding this exemption.

EXAMPLE 2: A local nonprofit ballet company, which is exempt from federal income tax under IRC Section 501(c)(3), promotes the arts, provides classes and instruction on various types of dance, and sponsors and performs at numerous recitals that are free to the public. At its location, the ballet company has a gift shop in which patrons can purchase T–shirts, dance wear, and costumes. All profits are utilized by the ballet company to pay for its operational expenses and to perform the activities previously mentioned. The gross receipts from this gift shop are exempt from Iowa sales tax to the extent that the profits therefrom are utilized to pay for the stated educational activities.

2. Religious. The phrase “religious purpose” is analogous to “religious worship.” In the broadest of terms, it includes all forms of belief in the existence of superior beings or things capable of exercising power over the human race. It also includes the use of property by a religious society or by a body of persons as a place for public worship.

EXAMPLE 1: A local church, which is exempt from federal income tax under IRC Section 501(c)(3), has a bake sale. All of the bake sale profits are returned to the church for religious purposes. Bake sales are generally exempt from sales tax unless the product is sold for “on–premises consumption” (see 701—20.5(422,423)), but the bake sale profits are exempt from tax in any event because they are to be used for religious purposes. However, generally, any purchases made by the church that are not for resale are subject to sales tax. See 701—subrule 17.1(3).

EXAMPLE 2: Another local church, exempt from federal income tax under IRC Section 501(c)(3), conducts bingo games every Thursday. The profits from the bingo activities will be used for religious purposes. However, bingo and other gambling activities are subject to sales tax regardless of the manner in which the profits are going to be used. See 17.1(5)“t.”

3. Charitable. A charitable act is an act done out of goodwill, benevolence, and a desire to add to or improve the good of humankind in general or any class or portion of humankind, with no pecuniary profit inuring to the person performing the service or giving the gift. The term “charitable” may be applied to almost anything that tends to promote well–doing and well–being for public good or public welfare with no pecuniary profit inuring to the one performing the service or the giving of gifts by persons kindly disposed toward others, without obligation. An activity for the benefit of the public at large which includes relief of poverty, advancement of education or religion, promotion of health, providing a government or municipal service, and other activities, the purpose of which is to benefit the community, is considered charitable. Maintenance of public parks is a valid charitable purpose. Schools, the Red Cross, the Boy Scouts, and relief agencies are charitable. Profit–making organizations are not charitable, but may donate to a qualifying organization that is a charitable organization or that engages in charitable activities. An activity from which the profits go to the benefit of any private shareholder or individual sponsoring the activity is not charitable. However, the casual sale exemption may apply to this type of situation. See 701— 18.28(422,423) for information regarding the casual sale exemption.

EXAMPLE 1: A local, nonprofit animal shelter that is exempt from federal income tax under IRC Section 501(c)(3) provides shelter, medical care, socialization, and adoption services for homeless animals and, as a fundraiser, sells T–shirts and sweatshirts depicting rescued animals. All of the profits from the sales will go to and be used by the animal shelter to defray the costs it incurs. Sales of the T–shirts and sweatshirts would be exempt from sales tax since the profits from the sales would be expended on a charitable purpose. Items purchased by the shelter for resale would also be exempt from sales tax. Items purchased by the shelter that are not for resale, such as dog or cat food that will be used by the shelter, would be subject to sales tax.

EXAMPLE 2: A nonprofit hospital, which has received exemption from federal income tax under IRC Section 501(c)(3), operates a gift shop. All of the profits are used to defray costs of hospital care for indigent patients who are unable to pay for such care. Due to the fact that all of the profits from the gift shop are used for a charitable purpose, the gross receipts would be exempt from sales tax. In addition, effective July 1, 1998, purchases made by the nonprofit hospital would also be exempt from sales tax—see Iowa Code section 422.45(54).

b. Profits. Gross receipts are exempt from sales tax to the extent that the profits are used by or donated to a qualifying organization and used for a qualifying activity. Profits are the gross receipts minus qualifying expenditures. The test of what is a qualifying expenditure is whether all expenditures are so related to the activity so that the expenditure itself is for an educational, charitable, or religious purpose. The term “profits” is defined as those proceeds remaining after direct expenses have been deducted from the gross receipts derived from the activity or event. In addition to this definition, the expenses should be necessary and have an immediate bearing or relationship to the fulfillment of the activity. For example, the cost of food for a fundraising meal would be a direct expense. However, the cost of a victory celebration because the fundraising dinner was a success would not be a direct expense. Another example of when the direct expense rule would be violated is when an educational institution invested profits from an art show into income–producing property and used the remainder of the profits to purchase books for the library.

Examples of when the cost of items would be a valid direct expense include, but are not limited to: (1) cost of food, if for a fundraising meal or the selling of food items; (2) cost of tickets, if the receipts from the tickets are the principal receipts for the activity or event; or (3) cost of entertainment, if the entertainment is the principal source of proceeds for the activity or event, such as a fundraising dance.

At the time of the selling event, a presumption is made that sales tax will not be charged to and collected from the consumer on the property or service sold. This particular exemption is dependent upon how the profits from the sale are expended, which follows the selling event. If after the event a portion of the profits is expended for a noneducational, nonreligious, or noncharitable purpose, tax is due on that portion of the gross receipts in the quarterly period in which that portion was expended.

c. Purchases. Any organization that purchases tangible personal property or services for resale, the profits from the sales of which will be used by or donated to a qualifying organization, shall not pay tax on the property or services purchased for resale. Organizations that purchase tangible personal property or services for resale may give their suppliers a proper certificate of resale, indicating that the organizations are using the property for the exempt purpose as outlined and explaining that they do not hold a permit for the reason that their receipts from the sale of tangible personal property in connection with the activities are exempt from tax. Purchases by qualifying organizations which are not for resale cannot be purchased free of sales tax. Nonprofit private educational institutions should see rule 17.11(422,423) for taxable status of their purchases.

d. General information. The following is general information that is important to organizations involved in educational, religious, or charitable activities:

(1) There is no authority in the Iowa Code to grant a nonprofit corporation any type of blanket sales or use tax exemption on its purchases because the organization is exempted from federal or state income taxes.

(2) Nonprofit corporations and educational, religious, or charitable organizations are subject to audit and should keep for three years financial records which meet acceptable accounting procedures.

(3) Nonprofit corporations and educational, religious, or charitable organizations can be held responsible for the payment of sales and use taxes as would any other individual, retailer, or corporation.

(4) Nonprofit corporations and educational, religious, or charitable organizations are not required to obtain a sales tax permit or any type of registration number if they are not making taxable sales. There is no provision in the Iowa Code which requires that such organizations have a special sales tax number or registration number and none are issued by the department of revenue and finance. However, if such organizations are making sales that are subject to tax, then a sales tax permit must be obtained.

(5) There is no statutory authority to require an organization or an individual to acquire an exemption letter or special certificate in order to claim an exemption under Iowa Code section 422.45(3). However, the burden of proof that an organization is entitled to an exemption lies with the organization. If an organization or individual wishes to notify the department of revenue and finance of an upcoming event, or if an organization or individual wishes to inquire about the tax status of an activity, the department encourages contact with its main office in Des Moines, Iowa. Inquiries should be made in writing explaining in detail the event, how the profits therefrom are going to be used, and the time and place of the event. All inquiries should be made in advance of the event.

Under Iowa Code section 422.54, the department does have statutory authority to verify whether an individual or an organization which is making retail sales is required to file a return. Therefore, organizations or individuals may be asked to provide written information regarding the retail sales in a manner or form required by the department and return it to the nearest department of revenue and finance field office within 30 days from the date the information was requested by the department.

Failure to complete and remit the requested information as required may result in a formal audit of the records of the organization or individual.

Inquiries regarding an individual’s or an organization’s sales tax exemption status relating to its fundraising activities should be made to the department’s taxpayer services section in Des Moines. Any decisions reached by the department of revenue and finance are conditional pending an audit and verification of how the profits from the event were used.

(6) Even though an activity or an organization has been recognized as one which could avail itself to the exemption provided by Iowa Code section 422.45(3), it can still be held responsible for sales tax on gross receipts if the department finds, upon additional investigation, that the proceeds expended by the organization were not for educational, religious, or charitable purposes.

(7) The gross receipts from sales made by a nonprofit organization that engages in the sale of any tangible personal property or enumerated services will be presumed to be taxable, unless the taxpayer can present proof that the profits are expended for an educational, religious, or charitable purpose. For example, XYZ is a certified nonprofit organization by the Internal Revenue Service under Section 501(c)(3) of the Internal Revenue Code. XYZ has an ice–skating facility and charges all patrons to use the facility. Iowa does not presume that the gross receipts from sales by XYZ are exempt just because XYZ is a nonprofit organization. Instead, there is a presumption that the gross receipts received by XYZ from its patrons would be subject to tax, unless XYZ can show that the profits are expended for a qualifying educational, religious, or charitable purpose or that XYZ qualifies for another exemption as set forth in Iowa Code section 422.45.

e. Specific information. Listed below are some common situations in which the sales tax exemption provided by Iowa Code section 422.45(3) may or may not be applicable:

(1) Gross receipts from the sales of food and tangible personal property by individuals and organizations at bazaars, sporting events, fairs, carnivals, and centennial celebrations are exempt to the extent the profits are used by or donated to a qualifying organization and are expended for educational, religious, or charitable purposes.

(2) Gross receipts from sales by students are exempt to the extent the profits therefrom are donated to a qualifying organization and are expended for educational, religious, or charitable purposes.

(3) Gross receipts from the sales of food and tangible personal property by the Boy Scouts, Girl Scouts, YMCA, 4–H and their satellite organizations are exempt to the extent that the profits are expended for educational, religious, or charitable purposes.

(4) Gross receipts from tickets or admissions, except for gross receipts from tickets or admissions to athletic events of educational institutions, which are used or donated to a qualifying organization are exempt to the extent the profits therefrom are expended for educational, religious, or charitable purposes.

(5) Gross receipts from church–related functions, such as the ladies’ auxiliary, except gambling activities, are exempt to the extent the profits therefrom are donated to or used by a qualifying organization and are expended for educational, religious, or charitable purposes.

(6) Gross receipts from activities or events to the extent the profits therefrom are donated and expended to support governmental or municipal services are considered charitable and, therefore, are exempt. Also, profits from these activities, to the extent they are expended for civic projects, are exempt. An example would be profits from activities of the Junior Chamber of Commerce, Lions Club, or Kiwanis which are expended on a civic project.

(7) Sales to organization members, primarily for the purpose of the selling organization, are exempt if the selling organization is a qualifying organization to the extent the profits are expended for educational, religious, or charitable purposes. Examples are sales of uniforms, insignias, and equipment by Scout organizations to their members, sales of Bibles by a church to its members, and sales of choir robes by a church to its members.

(8) A summer camp or ranch is generally considered a form of amusement which provides recreation to those who attend. If it is operated for profit, it is a form of commercial recreation and the gross receipts therefrom would be subject to sales tax. If it is not operated for profit, has received exemption from federal income tax under IRC Section 501(c)(3), and the profits are expended for a qualifying purpose, such as to help underprivileged children or to educate a child in some manner, the sales tax exemption would apply.

(9) Admissions to athletic events of educational institutions (except athletic events of elementary and secondary educational institutions) are taxable under Iowa Code section 422.43 regardless of how the proceeds are expended. Educational institutions receiving proceeds from athletic events should obtain an Iowa sales tax permit. See 701—subrule 16.26(2).

(10) The gross receipts from admissions to and the sale of tangible personal property at centennial events are exempt from sales tax if the organization sponsoring the event is a qualifying organization or the profits are donated to a qualifying organization and to the extent the profits from such sales are expended for educational, religious, or charitable purposes. Whether a centennial is educational rather than a commercial amusement depends on the activities and events held at the centennial.

(11) A professional golf tournament or any similar event at which spectators view professional athletics is not an educational activity. However, if the profits from the golf tournament are donated to a qualifying organization and expended for educational, religious, or charitable purposes, the sales are exempt from tax.

(12) Generally, qualifying nonprofit organizations which produce plays and concerts are not conducting educational activities unless there is evidence that the organization has as its primary objective to give educational instruction to the members of its organization, and the plays and concerts are a means to practice what is learned through the organization. However, each situation is factual and must be evaluated on its own merits.

(13) The mere renting of facilities to be used by another person or organization for educational, religious, or charitable purposes is not an educational, religious, or charitable activity.

(14) When profits from an activity are used to reimburse individuals for the cost of transporting their automobiles to an antique car show, the profits are not considered to be expended for educational purposes, and the gross receipts from the car show are subject to tax.

(15) Activities to raise funds to send members of qualifying educational, religious, or charitable organizations to conventions and other similar events which are directly related to the purposes of the qualifying educational, religious, or charitable organization are within the exemption requirements provided in Iowa Code section 422.45(3).

(16) An organization whose function is to promote by advertising the use of a particular product which can be purchased at retail does not qualify for the exemption provided by Iowa Code section 422.45(3), even though promotion by advertising may educate the public.

(17) Sales of tangible personal property by civic and municipal art and science centers are of an educational value and the gross receipts therefrom are exempt to the extent the profits are expended for educational, religious, or charitable purposes.

(18) Organizations such as the Big Ten Conference, Big 12 Conference, and the Missouri Valley Conference are, themselves, educational institutions since they are made up of member schools which are educational institutions. Any other public body made up of educational institutions could be entitled to the exemptions found in Iowa Code sections 422.45(5) and 422.45(8).

(19) All proceeds from games of skill, games of chance, raffles, and bingo games as defined in Iowa Code chapter 99B are subject to sales tax regardless of who is operating the game and regardless of how the proceeds therefrom are expended, except that those games operated by a county or a city are exempt from collecting the sales tax. See rule 701— 18.39(422). When organizations operate such games, they are required to have a sales tax permit and a gambling license. See 481—Chapter 100.

Amend the implementation clause as follows:

This rule is intended to implement 2001 Iowa Acts, House File 736, section 2, and Iowa Code sections 422.45(3), 422.45(5), 422.45(8), and 423.1.

ITEM 2. Amend rule 701—17.11(422,423), introductory paragraph and implementation clause, as follows:

701—17.11(422,423) Purchases for sales by schools—sales tax Educational institution. Goods, wares or merchandise purchased by any private nonprofit educational institution in the state and used for educational purposes shall be exempt from sales tax. The gross receipts from the sale of textbooks and hot lunches to students shall be exempt from sales tax when the entire proceeds to the extent the profits from the sales are used for educational purposes. The sales of the yearbooks to schools which have executed contracts with yearbook companies to purchase yearbooks are considered sales for resale and are exempt from tax. The sales of yearbooks from the school to the students and others, are considered an educational activity, and when the entire proceeds are exempt to the extent the profits therefrom are expended for educational purposes, they are exempt from tax under Iowa Code section 422.45(3).

This rule is intended to implement Iowa Code sections 422.42, 422.43, 422.45(3), 422.45(7), 422.45(8) as amended by 2001 Iowa Acts, House File 736, section 3, 423.1, and 423.4.

ITEM 3. Amend 701—Chapter 17 by adopting the following new rule:

701—17.39(422,423) Art centers. Effective July 1, 2001, the gross receipts from sales of goods, wares, or merchandise or from services performed, rendered, or furnished to a private nonprofit art center located in Iowa which are used in the operation of the art center are exempt from sales and use tax.

To be eligible for this exemption all of the following criteria must apply:

17.39(1) The organization seeking to claim this exemption must be a private nonprofit art center. For the purpose of this rule, an “art center” is defined as a structure that displays aesthetic objects which are the product of the conscious use of skill and creative imagination. The structure housing the art must be open to the public with regular hours and with staff available to answer visitors’ questions. “Open to the public on a regular basis” means the facility is open for visitors periodically or at fixed intervals.

17.39(2) The art center must be located in Iowa.

17.39(3) Purchases of tangible personal property or services must be for the operation of the art center.

This rule is intended to implement 2001 Iowa Acts, House File 736, section 4.

ITEM 4. Amend rule 701—18.52(422,423) by adopting the following new unnumbered paragraphs and amending the implementation clause as follows:

This rule is intended to implement Iowa Code section 422.45 and 2001 Iowa Acts, House File 723.

ITEM 5. Amend rule 701—34.5(423) as follows:

Amend subrule 34.5(9) by adopting the following new unnumbered paragraph:

Effective July 1, 2001, this exemption is also applicable to transfers to and from limited liability companies. The rules regarding transfers to a “new” corporation are also applicable to a transfer to a limited liability company. In addition, for a limited liability company to claim the exemption, the creation of the limited liability company must be by the same person or persons who owned the transferor entity.

Amend the implementation clause as follows:

This rule is intended to implement Iowa Code sections 422.45(5), 423.4(4), and 423.4(9) as amended by 2001 Iowa Acts, House File 736, section 7, and Iowa Code section 423.4(16) as amended by 1996 Iowa Acts, chapter 1125.

ITEM 6. Amend rule 701—86.2(450) as follows:

Amend paragraph 86.2(1)“a” by adopting the following new unnumbered paragraph:

Effective July 1, 2001, an estate is required to file an Iowa inheritance tax return if the entire estate of the decedent exceeds the sum of $25,000 after deducting the liabilities of the estate.

Amend the implementation clause as follows:

This rule is intended to implement Iowa Code sections 421.14, 450.4 as amended by 2001 Iowa Acts, Senate File 523, section 1, 450.5, 450.6, and 450.9; section, 450.22, as amended by 1999 Iowa Acts, chapter 151, section 46; and Iowa Code sections 450.44, 450.46, 450.47, 450.51, 450.52, 450.53, 450.63, and 450.94.

ITEM 7. Amend rule 701—86.5(450) as follows:

Amend subrule 86.5(12) by adopting a new unnumbered paragraph as the last paragraph of the subrule as follows:

Effective July 1, 2001, the value of a portion of any lump–sum or installment payment received by a beneficiary under an annuity which was purchased under an employee’s pension or retirement plan, which is to be included as net income under Iowa Code section 422.7, is exempt from Iowa inheritance tax.

Amend the implementation clause as follows:

This rule is intended to implement Iowa Code sections 422.7(4), 450.2, 450.3, 450.4(5) as amended by 2001 Iowa Acts, House File 736, section 20, 450.8, 450.12, 450.37, 450.91, 633.699, and 633.703A as amended by 1997 Iowa Acts, House File 266.

ITEM 8. Amend rule 701—105.2(422A) as follows:

701—105.2(422A) Tax rate. The hotel and motel tax rate cannot exceed 7 percent and must be imposed in increments of one or more full percentage points. Effective July 1, 2001, if a jurisdiction seeks to impose, repeal or change the tax rate, the jurisdiction must hold an election. Within ten days of an election favoring the imposition of the tax, repeal of the tax or change in the tax rate, the county auditor must notify the director in writing of the favorable vote by sending a copy of the abstract of votes from the favorable election to the director.

This rule is intended to implement Iowa Code section 422A.1 as amended by 2001 Iowa Acts, House File 715, section 12.

ITEM 9. Amend rule 701—107.2(422B) as follows:

Amend paragraph 107.2(2)“a” by adopting a new unnumbered paragraph as follows:

A jurisdiction that has a local option tax that is set to expire may vote to impose another local option tax. However, due to the required imposition dates previously set forth, there may be a lapse in the tax because of an expiration of the former local option tax and the required imposition dates for imposition of a local option tax. Effective July 1, 2001, a local option jurisdiction may avoid a lapse in local option tax. To avoid a lapse in the tax, a jurisdiction may place on the ballot that the new local option tax will continue without repeal of the prior tax. If the required vote is in favor of imposition of the local option tax, the continued local option tax can be imposed so there is no lapse in the tax.

Amend the implementation clause:

This rule is intended to implement Iowa Code section sections 422B.1 as amended by 2000 Iowa Acts, House File 2136, section 36, Iowa Code Supplement section and 422B.8 and Iowa Code section 422B.9 as amended by 1999 2001 Iowa Acts, chapter 156 House File 715, section 14.

ITEM 10. Amend rule 701—107.9(422B) as follows:

Amend the introductory paragraph as follows:

701—107.9(422B,422E) Sales not subject to local option tax, including transactions subject to Iowa use tax. The local option sales and service tax is imposed upon the same basis as the Iowa state sales and service tax, with ten exceptions:

Amend numbered paragraph “2” as follows:

2. Prior to June 30, 2001, All all gross receipts from the sale of motor fuel and special fuel as defined in Iowa Code chapter 452A. Effective July 1, 2001, the gross receipts from the sale of or service of providing motor fuel or special fuel as defined under Iowa Code chapter 452A are subject to local option tax. However, the gross receipts from the sale or service of these types of fuels are exempt from local option tax if all of the following criteria are met:

Amend the implementation clause as follows:

This rule is intended to implement Iowa Code section 422B.8 as amended by 2001 Iowa Acts, House File 715, section 13, section 422E.3 as amended by 2001 Iowa Acts, House File 715, section 16, and section 422.45 as amended by 2001 Iowa Acts, House File 1.

ITEM 11. Rescind rule 701—107.16(422B) and adopt the following new rule in lieu thereof:

701—107.16(422B) Construction contractor refunds. Construction contractors may apply to the department for a refund of local option tax paid on goods, wares, or merchandise based on certain conditions.

107.16(1) Conditions for refund. All of the following conditions must be met before a contractor is eligible to claim a local option tax refund:

a. The goods, wares or merchandise is incorporated into an improvement to real estate in fulfillment of a written contract fully executed prior to the date of the imposition or increase in rate of the local option tax. The refund shall not apply to equipment transferred in fulfillment of a mixed contract.

b. The contractor has paid to the department or to a retailer the full amount of the state and local option tax.

c. Prior to July 1, 2001, the claim must be filed on forms provided by the department and must be filed within six months of the date the tax is paid. Effective July 1, 2001, the claim for refund must be filed with the department within one year from the date the tax is paid.

107.16(2) The refund must be paid by the department from the appropriate city or county account in the local option tax fund.

107.16(3) Erroneous and false refund claims. A contractor who makes an application for refund that is in error is liable for payment of the excess refund paid plus interest as set forth in Iowa Code section 421.7.

For collection of payments under this rule, see Iowa Code section 422B.11.

This rule is intended to implement Iowa Code section 422B.11 as amended by 2001 Iowa Acts, House File 715, section 15.

ITEM 12. Amend 701—Chapter 107 by adopting the following new rule:

701—107.17(422B,422E) Discretionary application of local option tax revenues. Effective July 1, 2001, the governing authority of the local option jurisdiction or school board has the discretion to determine whether revenues received from local option tax are to be applied to bond obligations as provided in Iowa Code section 76.4 as amended by 2001 Iowa Acts, House File 739.

This rule is intended to implement Iowa Code section 76.4 as amended by 2001 Iowa Acts, House File 739.

ITEM 13. Amend rule 701—108.4(422E) as follows:

701—108.4(422E) Similarities to the local option sales and service tax imposed in Iowa Code chapter 422B and 701—Chapter 107. The administration of the tax imposed under this chapter is similar to the local option tax imposed under Iowa Code chapter 422B and 701—Chapter 107. As a result, a few of the rules set forth in 701—Chapter 107 are also applicable and govern the local option sales and service school infrastructure tax as well. Accordingly, the following rules are incorporated by reference into this chapter and will govern their respective topics in relation to the local option sales and service school infrastructure tax:

1. 701—paragraph 107.2(2)“a” Continuation of local option tax.

2. 701—107.7(422B) Special rules regarding utility payments.

2 3. 701—107.8(422B) Contacts with county necessary to impose collection obligation upon a retailer.

3 5. 701—107.12(422B) Computation of local option tax due from mixed sales on excursion boats.

4 6. 701—107.13(421,422B) Officers and partners, personal liability for unpaid tax.

5 7. 701—107.15(422B) Application of payments.

This rule is intended to implement Iowa Code section sections 76.4 as amended by 2001 Iowa Acts, House File 739, and 422E.3 as amended by 2001 Iowa Acts, House File 715, section 16 and 2000 Iowa Acts, House File 2545, section 28.

Pursuant to the authority of Iowa Code sections 421.17(19) and 422.68, the Department of Revenue and Finance hereby gives Notice of Intended Action to amend Chapter 26, “Sales and Use Tax on Services,” Iowa Administrative Code.

The 2001 session of the Iowa Legislature clarified the law by stating specifically that sales of “bundled services contracts” are subject to Iowa tax. The Legislature also changed Iowa law by giving the Director the authority to enter into agreements with retailers, groups of retailers, and organizations representing retailers to apportion gross receipts from bundled services contracts. The proposed new rule has been drafted to explain this clarification and change in the law.

The proposed rule will not necessitate additional expenditures by political subdivisions or agencies and entities which contract with political subdivisions.

Any person who believes that the application of the discretionary provisions of this rule would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any.

The Department has determined that this proposed rule may have an impact on small business. The Department has considered the factors listed in Iowa Code section 17A.4A. The Department will issue a regulatory analysis as provided in Iowa Code section 17A.4A if a written request is filed by delivery or by mailing postmarked no later than January 14, 2002, to the Policy Section, Compliance Division, Department of Revenue and Finance, Hoover State Office Building, P.O. Box 10457, Des Moines, Iowa 50306. The request may be made by the Administrative Rules Review Committee, the Administrative Rules Coordinator, at least 25 persons signing that request who each qualify as a small business or an organization representing at least 25 such persons.

Any interested person may make written suggestions or comments on this proposed rule on or before January 11, 2002. Such written comments should be directed to the Policy Section, Compliance Division, Department of Revenue and Finance, Hoover State Office Building, P.O. Box 10457, Des Moines, Iowa 50306.

Persons who want to convey their views orally should contact the Policy Section, Compliance Division, Department of Revenue and Finance, at (515)281–4250 or at the Department of Revenue and Finance offices on the fourth floor of the Hoover State Office Building.

Requests for a public hearing must be received by January 4, 2002.

This rule is intended to implement Iowa Code section 422.43 as amended by 2001 Iowa Acts, House File 736, section 1.

The following amendment is proposed.

Amend 701—Chapter 26 by adopting the following new rule:

701—26.81(422) Sales of bundled services contracts. The gross receipts from sales of bundled services contracts are subject to Iowa sales tax. For purposes of this rule, a “bundled services contract” means an agreement providing for a retailer’s performance of services, one or more of which is a taxable service enumerated in Iowa Code section 422.43 and one or more of which is nontaxable or exempt, in return for a consumer’s or user’s single payment for the performance of the services, with no separate statement to the consumer or user of what portion of that payment is attributable to any one service which is a part of the contract. If that portion of a consumer’s payment for a bundled services contract which is attributable to the performance of a taxable service or services can be segregated by contract or otherwise from that portion of the payment which is attributable to the performance of a service or services which are not taxable, then only that portion of the payment which is attributable to the performance of a taxable service or services is subject to tax.

EXAMPLE 1: Company A provides a bundled services contract which provides the following services to consumers: Internet access, interstate long distance service, intrastate long distance service, local telephone service, cable television service, and computer rental. Gross receipts from the performance of Internet access and interstate long distance services are not taxed under Iowa law. Gross receipts from the performance of the other four services are taxable. Company A offers, in six separate contracts, each service individually to customers for the price of $25 per month. Company A’s monthly charge for its bundled services contract is $150. Fifty dollars of the monthly charge for the bundled services contract, that portion which represents Internet access and interstate long distance services, is excluded from tax. One hundred dollars, that portion of the monthly charge representing the taxable services of intrastate and local telephone service, cable television and computer rental, is taxable.

EXAMPLE 2: Company B offers a contract for the bundled services of long distance telephone service (interstate and intrastate), local telephone service, and Internet access service. Its monthly charge for these bundled services is $80. The bundled services contract is the only service contract which Company B offers, and there is nothing else in Company B’s notice to the customer to indicate how much of the monthly service charge is attributable to taxable services and how much is attributable to services which are not taxable. Under these circumstances, the entire amount of $80 is subject to tax.

As of July 1, 2001, for purposes of the administration of the tax on bundled services contracts, the director of the department may enter into agreements of limited duration with individual retailers, groups of retailers, or organizations representing retailers of bundled services contracts. Once approved, such an agreement shall impose the tax rate only upon that portion of the gross receipts from a bundled services contract which is attributable to taxable services provided under the contract.

This rule is intended to implement Iowa Code section 422.43 as amended by 2001 Iowa Acts, House File 736, section 1.

Pursuant to Iowa Code sections 17A.4, 476.1, 476.1A, 476.1B, 476.2, and 476.20 (2001), the Utilities Board (Board) gives notice that a public hearing to receive oralor written comments is scheduled for January 23, 2002, at10 a.m., in the Board’s hearing room located at 350 Maple Street, Des Moines, Iowa. The public hearing isbeing scheduled to allow interested persons to commenton the proposed amendments to 199 IAC 19.4(10)“c,” 19.4(10)“d,” 19.4(15)“h”(3), 20.4(11)“c,” 20.4(11)“d,” and 20.4(15)“h”(3). The proposed amendments are designedto clarify the rights and remedies for natural gas and electric customers. The proposed amendments were published inthe Iowa Administrative Bulletin on October 3, 2001, as ARC 0991B.

Pursuant to the authority of Iowa Code sections 17A.3(1)“a” and 217.6, the Department of Human Services hereby amends Chapter 1, “Departmental Organization and Procedures,” and Chapter 3, “Department Procedures for Rule Making,” appearing in the Iowa Administrative Code.

These amendments describe the new field operations service delivery structure and revise the locations for oral proceedings regarding proposed rules directly affecting indigent clients to correspond to the new structure.

Executive Order Number 24 mandated an across–the–board cut of 4.3 percent in state funding for all appropriations. If the Department were to accomplish the necessary reductions under the existing structure, there would be a significant reduction to line staff. This new structure enables the Department to minimize the impact on line staff by reducing and streamlining the supervisory and support structure. Under the new structure:

• The five regional offices and the 38 existing county clusters will be replaced by eight service areas. The positions of the regional administrators and the human services area administrators will be eliminated. A Service Area Manager, who will report directly to the Deputy Director for Field Operations, will head the service areas. The Service Area Manager will have a core management team consisting of a social work supervisor, an income maintenance supervisor, a community liaison, a personnel and business management specialist, a quality assurance consultant, and a secretary.

The service area staff will be located in local offices within the service delivery area, with the main local offices being in the following locations: Ames, Marshalltown or Fort Dodge; Cedar Rapids; Council Bluffs; Davenport; Des Moines; Dubuque; Mason City or Waterloo; and Sioux City. The primary reason for selecting these locations is that they will likely have the larger concentration of staff. The service area staff will be expected to travel frequently to all of the offices in the service area to maintain strong contact with staff and community partners.

The Department is consulting with county boards of supervisors about service area boundaries and ways of ensuring client access to services. The Department may make some adaptations to the proposed service area boundaries provided that the adaptations do not create a significant impact on client service, staffing, or budget. The configuration of the service areas is a means by which the Department organizes and manages its staff and resources across the entire state. The boundaries of the service areas also enable the Department to define who will be responsible for relationships with county boards, decategorization boards, empowerment boards and other groups. A proposed map follows.

The Department reviewed many service area configurations including historical Department areas, other state agency areas, judicial boundaries and current county partnerships. Because common service areas do not exist, it is particularly difficult to determine that any single other boundary is relevant for the state’s human service delivery system. As an example, the Department coordinates and interfaces with many other systems (such as education, judiciary, workforce development, area aging agencies, correctional, mental health). The Department also took into account commerce patterns, historical county relationships, population, and the Department’s resources. The proposed service area boundaries maintain the majority of the Department’s existing county cluster boundaries (only 9 of the 38 county clusters are modified).

• An estimated additional 37 local county offices are projected to become less than full–time offices. Given the increasing high demands and reduced resources, the Department will no longer be able to maintain full–time offices in counties with less than five income maintenance and social work staff. The Department will consult with county boards of supervisors and other community partners to determine the best way to transition the 37 county offices to less than full–time offices and ensure client accessibility to the Department’s services.

Currently the Department’s supervisors, protective assessment workers, adoption workers and other staff drive to various offices. At times service and income maintenance staff drive to other offices to provide coverage when there is a critical need. Under this structure, clients may go to the location where the staff are based, or the income maintenance and service staff will travel to the less than full–time office. The amount of travel will be dependent upon the alternative strategies to ensure client accessibility and the number of days a week that the Department needs to be face to face with clients in the less than full–time offices.

There have been no easy decisions in dealing with the magnitude of the significant reduction in funding. The Department’s first priority is to maintain frontline workers, supervisors, and support staff. In addition, the Department had to address the emphasis on larger spans of control for managers and the need to provide basic training and consultation and other business functions such as child care licensing and purchase of service contracting.

The Department is proud of the leadership and support it has been able to provide in the development of community response to human service issues. The Department wants to stay as involved as it can, but it will no longer be able to provide the same level of time to this effort as it once did, not because it does not want to, but because it simply will not have the staff to do so. Delivery of services to clients must be the Department’s first priority.

It is to be understood that wherever the term “district office” or “regional office” appears in the Department’s rules, the term “service area” shall now apply. Wherever the term “regional administrator,” “district administrator,” “human services area administrator” or “area administrator” appears, the term “service area manager or designee” shall apply.

These amendments do not provide for waivers because the amendments do allow for flexibility in establishing the service areas and hours of operation of the less than full–time offices.

The Department finds that notice and public participation are impracticable and contrary to the public interest at this time. The Department is statutorily and constitutionally required to reduce spending obligations to the level of constitutionally authorized appropriations. Deeper staff layoffs than those proposed would be required if the Department were to delay taking action to allow for notice and public participation. Therefore, these amendments are filed pursuant to Iowa Code section 17A.4(2).

In addition and in accordance with Iowa Code section 17A.5(2)“b”(1) to (3), these amendments took effect November 14, 2001. The Department finds that the constitutional and statutory prohibitions on deficit expenditures necessitate the immediate efficacy of these amendments. In addition, the Department finds that this November 14, 2001, effective date confers a public benefit and is necessary because of the presently existing constitutional peril to the public welfare, caused by spending obligations which, without immediate and effective rule amendments, do now and will continue to exceed available revenues. To avert this constitutional crisis, there is no time to implement the regular rule–making process. Any further delay would result in even steeper staff layoffs at a later date. To the maximum extent possible, all reasonable efforts have been made to give actual and timely notice to persons affected of the content of these rules.

These amendments are also published herein under Notice of Intended Action, ARC 1156B, to allow for public comment.

The Council on Human Services adopted these amendments November 14, 2001.

These amendments are intended to implement Iowa Code section 17A.3(1)“a” and section 217.42 as amended by 2001 Iowa Acts, House File 764, section 1.

These amendments became effective November 14, 2001.

The following amendments are adopted.

ITEM 1. Rescind rule 441—1.4(17A) and adopt the following new rule in lieu thereof:

1.4(1) Delivery system. The department’s community service delivery system is based on service areas with offices in each county that are strategically located for purposes of client accessibility. Each service area is headed by a service area manager who is responsible for the following within the service area: effective management of the delivery of social services within the area, management of the department offices, directing all personnel, implementation of departmental policies and procedures, support for the development of social service resources within the community, and resolution of service delivery complaints. The services delivered in a service area include income maintenance and social service programs, child protection and other specialized services.

1.4(2) Local offices. There shall be at least one local office in each county. These local offices may be full–time or less than full–time. Full–time offices will provide income maintenance and social service program delivery and will serve as a base for the less than full–time office staff. Additional services offered in local offices may include child protection and other specialized services. Less than full–time offices will be operated on a reduced number of days per week based on county need and will provide income maintenance and social services.

This rule is intended to implement Iowa Code section 17A.3(1)“a.”

ITEM 2. Amend subrule 3.5(2), second unnumbered paragraph, as follows:

Oral proceedings scheduled by the department regarding rules directly affecting indigent clients shall be held in each of the five regions service areas defined in rule 441— 1.4(17A) and in the Mason City, Davenport, and Ottumwa area offices.

[Filed Emergency 11/14/01, effective 11/14/01]
[Published 12/12/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 12/12/01.

Pursuant to the authority of Iowa Code subsection 239B.4(4), the Department of Human Services hereby amends Chapter 41, “Granting Assistance,” Chapter 46, “Overpayment Recovery,” and Chapter 93, “PROMISE JOBS Program,” appearing in the Iowa Administrative Code.

On August 22, 1996, President Clinton signed into law Public Law 104–193, the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996. The new law replaced the Aid to Families with Dependent Children (AFDC) program with a new block grant program to states, called Temporary Assistance for Needy Families (TANF). TANF provides funding to states for a number of assistance programs, including Iowa’s Family Investment Program (FIP) and the PROMISE JOBS work and training program.

As a result of Public Law 104–193, all states must limit TANF–funded cash assistance to a 60–month lifetime limit beginning with the dates on which states implemented TANF. However, federal law and regulations allow states the option of extending TANF–funded assistance beyond 60 months for families with hardship circumstances.

Current rules for providing FIP beyond 60 months require that requests for hardship exemptions and resulting six–month family investment agreements (FIA) be handled by a family support team made up of income maintenance, services, PROMISE JOBS, and Family Development and Self–Sufficiency (FaDSS) staff when FaDSS is involved with the family. After receiving information from all specified case workers involved with the family, the family support team was to meet with the family, determine eligibility for the hardship exemption, develop with the family the six–month FIA, and determine the method for monitoring the family’s progress.

These amendments provide for hardship exemption eligibility to be determined by the local income maintenance staff and for the six–month FIA to be developed by the family and PROMISE JOBS staff, similar to the way that regular FIP eligibility is determined and FIAs are administered.

Specifically, these amendments:

• Add a cross reference to the FIP hardship exemption rules in 441—subrule 41.24(2) identifying persons exempt from referral to PROMISE JOBS.

• Remove the reference to a family support team appointed by regional administrators or the director’s designees determining eligibility for a hardship exemption for FIP beyond 60 months. Under these amendments, eligibility for a hardship exemption for FIP beyond 60 months shall be determined by income maintenance based upon information asserting a hardship barrier and supporting evidence provided by the family.

• Remove the reference to the requirement that families requesting a hardship exemption to FIP beyond 60 months meet face to face with a family support team. Under these amendments, the family shall meet as described below or in the ordinary course of business for approval of an application or for a regularly scheduled face–to–face case review.

• Remove the reference that income maintenance shall determine a hardship exemption when the family support team is unable to reach consensus. Under these amendments, income maintenance shall make all hardship exemption determinations.

• Remove the reference to the family support team assisting the family to develop a six–month family investment agreement (FIA). Under these amendments, PROMISE JOBS shall assist the family in developing the six–month FIA.

• Remove references to the family support team determining the method for monitoring the six–month FIA and making periodic contacts with the family. Under these amendments, PROMISE JOBS shall determine the method for monitoring the six–month FIA and how periodic contacts shall be made.

• Amend the definition of “procedural error” to remove the reference to 441—subrule 41.30(3) regarding the required face–to–face meetings. The definition of “procedural error” is further amended to include failure to secure a properly signed hardship exemption request form.

• Add a cross reference to the FIP hardship exemption rules in 441—subrule 93.111(1) concerning PROMISE JOBS assessments and activities.

These amendments do not provide for waivers in specific situations. Eligibility for a hardship exemption is determined based on the individual family’s circumstances and the decision is appealable. The exemption is a waiver to the 60–month FIP limit.

In accordance with Iowa Code subsection 17A.4(2), the Department finds that notice and public participation are impracticable and contrary to the public interest for the following reasons:

• Unforeseen increases in FIP caseloads and cost per case have created shortfalls in financial and staff resources available to serve needy families. Decreasing state revenues are expected to increase the shortfall and make vital resources even more limited. Eliminating the use of family support teams will decrease the number of persons involved in determining a hardship exemption from potentially four case workers plus four family support team members, to a total of two local office staff. This will significantly reduce the overall state resources, staff time and, consequently, public funds required in the process.

• The first families to reach the 60–month limit will do so effective January 1, 2002. Consequently, families will begin requesting FIP hardship exemptions in November 2001, with hardship eligibility determinations required within 30 days. Requirements for regular rule making do not allow the Department to complete these changes before the time hardship determinations must be made.

• Delaying implementation of these rules would require using family support teams as described in the current rules until the rules can be changed following regular rule–making procedures. It is in the public interest to implement these rules as soon as possible to reduce the costs to the state associated with making hardship determinations.

• Delaying implementation of these rules would further increase the strain on limited resources which could result in delays in processing requests for hardship exemptions as well as negatively affect the Department’s ability to provide timely eligibility determination and issue correct benefits for assistance programs and services provided by the Department to needy individuals and families.

In accordance with Iowa Code subsection 17A.5(2)“b”(2), the Department further finds that these rules confer a benefit on both the general public and FIP participants subject to the 60–month limit in particular as follows:

• These changes simplify the FIP hardship exemption process for families requesting exemption while retaining the families’ right to appeal an unfavorable decision in front of an impartial administrative law judge.

• These changes represent a cost savings to the public as described above.

• These changes will better enable the Department to make timely determinations for hardship exemption eligibility as well as make timely and accurate determinations of eligibility and benefits of other programs and services provided by the Department.

These amendments are also published herein under Notice of Intended Action as ARC 1160B to allow for public comment.

The Council on Human Services adopted these amendments November 14, 2001.

These amendments are intended to implement Iowa Code chapter 239B.

These amendments became effective November 14, 2001.

The following amendments are adopted.

ITEM 1. Amend subrule 41.24(2), introductory paragraph, as follows:

41.24(2) Exemptions. The Except as specified at sub–rule 41.30(3), the following persons are exempt from referral:

ITEM 2. Amend subrule 41.30(3) as follows:

Amend paragraph “d” as follows:

Amend subparagraph (3) as follows:

(3) A family support team appointed by the regional administrators or the director’s designees Income maintenance shall determine eligibility for a hardship exemption. The members of the family support team shall be constant and shall consist of income maintenance, PROMISE JOBS, and service staff. At local option, FaDSS staff may also be a part of the team. When the family is participating in the FaDSS program, then FaDSS staff shall be part of the team.

Rescind and reserve subparagraphs (7) and (8).

Amend subparagraphs (9) and (10) as follows:

(9) Recipients whose FIP assistance is canceled at the end of the sixtieth month shall be eligible for reinstatement as described at 441—subrule 40.22(5) when Form 470–3826 and all supporting evidence are is received before the effective date of cancellation even if eligibility for a hardship exemption is not determined until on or after the effective date of cancellation.

(10) When Form 470–3826 and all supporting evidence are is not received before the effective date of the FIP cancellation and a Public Assistance Application is required for the family to regain FIP eligibility, the effective date of assistance shall be no earlier than seven days from the date of application as described at rule 441—40.26(239B).

Amend paragraph “e,” introductory paragraph and subparagraph (1), as follows:

e. Six–month family investment agreement (FIA). With the help of the family support team, families Families who request a hardship exemption shall develop and sign a six–month family investment agreement (FIA) as defined at rule 441—93.109(239B) to address the circumstances that are creating the barrier. Whenever possible, the FIA shall be developed at the time of the required face–to–face meeting described at subparagraph 41.30(3)“d”(7). All adults as defined in subrule 41.30(1) shall sign the six–month FIA. The six–month FIA shall contain specific steps to enable the family to make incremental progress toward overcoming the barrier. Each subsequent hardship exemption shall require a new six–month FIA. Failure to develop or sign a six–month FIA shall result in denial of the family’s hardship exemption request.

(1) PROMISE JOBS staff shall provide necessary supportive services as described in 441—Chapter 93 and shall monitor the six–month FIA. The family support team shall determine the methodology of monitoring the incremental steps towards progress. Periodic contacts by a member of the team shall be made with the family at least once a month. These contacts need not be in person. Time and attendance reports shall be required as specified at rule 441— 93.135(239B).

ITEM 3. Amend rule 441—46.21(239B), definition of “procedural error,” as follows:

“Procedural error” means a technical error that does not in and of itself result in an overpayment. Procedural errors include:

Failure to secure a properly signed application at the time of initial application or reapplication.

Failure of the county office to conduct the face–to–face interviews described in 441—subrules 40.24(2), and 40.27(1), and 41.30(3).

Failure to request a Public Assistance Eligibility Report or a Review/Recertification Eligibility Document at the time of a monthly, semiannual, or annual review.

Failure of county office staff to cancel the family investment program when the client submits a Public Assistance Eligibility Report or a Review/Recertification Eligibility Document which is not complete as defined in 441—paragraph 40.27(4)“b.” However, overpayments of grants as defined above based on incomplete reports are subject to recoupment.

ITEM 4. Amend rule 441—93.109(239B), introductory paragraph, as follows:

441—93.109(239B) The family investment agreement (FIA). Families and individuals eligible for FIP shall, through any persons referred to PROMISE JOBS, enter into and carry out the activities of the FIA. Those who choose not to enter into the FIA or who choose not to continue its activities after signing the FIA shall enter into the limited benefit plan (LBP) as described at 441—subrule 41.24(8).

ITEM 5. Amend subrule 93.111(1), paragraph “e,” as follows:

e. Family Except for families who have filed Form 470–3826, Request for FIP Beyond 60 Months, family development and self–sufficiency (FaDSS) program participants attend orientation but are not referred to assessment until the FaDSS grantee approves the assignment of the FaDSS participant to other PROMISE JOBS activities. FaDSS participants who have completed assessment in the past may be required to complete assessment again when the FaDSS grantee approves assignment to other PROMISE JOBS activities if the PROMISE JOBS worker believes that extended assessment is necessary to reassess the participant’s abilities and circumstances.

[Filed Emergency 11/14/01, effective 11/14/01]

[Published 12/12/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 12/12/01.

Pursuant to the authority of Iowa Code section 234.6, the Department of Human Services hereby amends Chapter 153, “Social Services Block Grant and Funding for Local Services,” appearing in the Iowa Administrative Code.

Executive Order Number 24 mandated an across–the–board cut of 4.3 percent in state funding for all appropriations. The following amendment is intended to implement the mandated reduction in appropriation for state payment cases by reducing the spending obligations of the Department for state payment cases effective December 1, 2001, for the remainder of fiscal year 2002 and until changed. The state’s financial situation is not expected to improve in fiscal year 2003.

This amendment reduces payment to providers of service to State Payment Program clients by 4.3 percent. The State Payment Program received a 16 percent budget cut effective July 1, 2001. It is anticipated the program will recoup most of that cut through program members’ becoming eligible for the Medicaid Adult Rehabilitation Option funding and, thereby, eliminating or reducing their need for State Payment Program funding. An across–the–board cut to all State Payment Program provider rates is the most equitable and practical means of implementing the 4.3 percent budget cut. Other ways of dealing with the budget cuts were considered, such as restricting program eligibility or restricting the delivery of certain services, but were rejected due to inequity of treatment of counties and clients.

This percentage reduction will result in a total state savings of $355,000 for the remainder of state fiscal year 2002 ($130,000 from MR/DD service providers, $200,000 from Iowa Plan providers, and $25,000 from administrative fees paid to the Iowa Plan contractor).

This amendment does not provide for waivers in specified situations because of the underlying budget constraints. Needed savings would not be achieved if waivers were provided.

The Department of Human Services finds that notice and public participation are impracticable and contrary to the public interest at this time. The Department is statutorilyand constitutionally required to reduce spending obligations to the level of constitutionally authorized appropriations. Deeper cuts than those adopted would be required if the Department were to delay taking action to allow for notice and public participation. Therefore, this amendment is filed pursuant to Iowa Code section 17A.4(2).

In addition and in accordance with Iowa Code section 17A.5(2)“b”(1) to (3), this amendment took effect December 1, 2001. The Department finds that the constitutional and statutory prohibitions on deficit expenditures necessitate the immediate efficacy of this amendment. In addition, the Department finds that this December 1, 2001, effective date confers a public benefit and is necessary because of the presently existing constitutional peril to the public welfare, caused by spending obligations which, without immediate and effective rule amendments, do now and will continue to exceed available revenues. To avert this constitutional crisis, there is no time to implement the regular rule–making process. Any further delay would result in even steeper cuts to providers at a later date. To the maximum extent possible, all reasonable efforts have been made to give actual and timely notice to persons affected of the content of these rules.

This amendment is also published herein under Notice of Intended Action as ARC 1166B to allow for public comment.

The Council on Human Services adopted this amendment November 14, 2001.

This amendment is intended to implement Iowa Code section 234.6(6).

This amendment became effective December 1, 2001.

The following amendment is adopted.

Amend subrule 153.57(3), paragraph “b,” as follows:

b. Payment to a provider with a special mental health, mental retardation county contract agreement for services provided to a member shall be the purchase of service rate less 4.3 percent or, if there is no purchase of service contract, the unit rate paid on November 1, 2001, by the county in which the provider is located, less 4.3 percent. Payment to a provider for services to a member whose case is being overseen by the department’s service worker and the Iowa Plan shall be at the rate established by the Iowa Plan contractor as of November 1, 2001, less 4.3 percent.

[Filed Emergency 11/14/01, effective 12/1/01]

[Published 12/12/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 12/12/01.

Pursuant to the authority of Iowa Code sections 19A.9 and 70A.1, the Department of Personnel hereby amends Chapter 11, “Separations, Disciplinary Actions and Reduction in Force,” Iowa Administrative Code.

The purpose of this amendment is to comply with 2001 Iowa Acts, Senate File 551, enacted by the Seventy–ninth General Assembly during the Second Extraordinary Session and signed by the Governor on November 19, 2001. 2001 Iowa Acts, Senate File 551, establishes a sick leave and vacation incentive program for eligible executive branch employees, requires the adoption of administrative rules, and provides that such rules may be adopted on an emergency basis pursuant to Iowa Code section 17A.5, subsection 2, paragraph “b.”

In compliance with Iowa Code section 17A.4(2), the Department finds that notice and public participation are impracticable due to the immediate need for rule making to administer the aspects of the program approved by the legislature.

The Department also finds, pursuant to Iowa Code section 17A.5(2)“b”(2), that the normal effective date of the amendment should be waived and the amendment should be made effective upon filing with the Administrative Rules Coordinator on November 20, 2001, as it confers a benefit upon the executive branch agencies and its employees.

The Department adopted this amendment on November 20, 2001.

This amendment is intended to implement 2001 Iowa Acts, Senate File 551.

This amendment became effective on November 20, 2001.

The following amendment is adopted.

Adopt new subrule 11.1(4) as follows:

11.1(4) Sick leave and vacation incentive program— 2002.

a. This termination incentive program is provided for in 2001 Iowa Acts, Senate File 551. To be eligible to participate in this program an employee’s length of credited service and the employee’s age as of December 31, 2002, but for participation in this program, must equal or exceed 75 years, including buy–back or buy–in service in the Iowa public employees’ retirement system (IPERS) or in the public safety peace officers’ retirement, accident, and disability system (POR). Employees on the payroll who meet these criteria and who are receiving workers’ compensation on and after November 20, 2001, are also eligible to participate.

(1) Age shall be determined in years and quarters of a year.

1. The birth year is subtracted from 2002 to obtain the total years.

2. To calculate quarters:

• If the birth month is January, February, or March, one year shall be added to the total years calculated in 11.1(4)“a”(1)“1”;

• If the birth month is April, May, or June, .75 of a year shall be added to the total years calculated in 11.1(4)“a”(1)“1”;

• If the birth month is July, August, or September, .50 of a year shall be added to the total years calculated in 11.1(4)“a”(1)“1”;

• If the birth month is October, November, or December, .25 of a year shall be added to the total years calculated in 11.1(4)“a”(1)“1.”

(2) Length of credited service shall be calculated by IPERS or POR service credit, pursuant to each system’s respective rules and regulations.

b. To become a program participant, an employee must complete and file a program application form on or before January 31, 2002, and must terminate employment on or before February 1, 2002.

c. For purposes of this program, the following definitions shall apply:

“Employee” means an employee of the executive branch of the state who is not covered by a collective bargaining agreement, including an employee of a judicial district of the department of correctional services if the district elects to participate in the program, an employee of the state board of regents if the board elects to participate in the program, and an employee of the department of justice. However, “employee” does not mean an elected official.

“Participating employee” means an eligible employee who, on or before January 31, 2002, submits an election to participate in the sick leave and vacation incentive program and terminates state employment on or before February 1, 2002. For the purposes of this program, a person remains a participating employee after payments made hereunder cease.

“Regular annual salary” means the employee’s regular biweekly salary on the date of termination multiplied by 26.

d. A participating employee will receive the cash value of the employee’s accumulated sick leave, not to exceed 100 percent of the employee’s regular annual salary, and annual leave accrued balances. The state shall pay to the participating employee a portion of the combined dollar value of the accrued sick leave and annual leave balances each fiscal year, for a period of five years on the following schedule:

(1) Upon termination, in the first fiscal year of the program, the employee shall receive 10 percent of the total cash value of the aforementioned calculation for sick leave and annual leave.

(2) In August of the second through the fourth fiscal years of the program, the employee shall receive 20 percent of the total cash value of the aforementioned calculation for sick leave and annual leave.

(3) In August of the fifth fiscal year of the program, the employee shall receive the remaining 30 percent of the total cash value of the aforementioned calculation for sick leave and annual leave.

e. A participating employee, as a condition of participation in this program, shall waive any and all rights to receive payment of a sick leave balance pursuant to Iowa Code section 70A.23 and payment for accrued vacation pursuant to Iowa Code section 91A.4 and shall waive all rights to file suit against the state of Iowa, including all of its departments, agencies, and other subdivisions, based on state or federal claims arising out of the employment relationship.

f. The administrative head, manager, supervisor, or any employee of a department, agency, board, or commission of the state of Iowa shall not coerce or otherwise influence any state employee to participate or not participate in this program.

g. In the event a program participant dies prior to receiving the total cash value of the incentive addressed in paragraph 11.4(1)“d,” the participant’s designated beneficiary or beneficiaries shall receive the remaining payments on the schedule developed for such payments.

h. An employee who elects participation in this program, from the date of termination from employment, is not eligible to accept any further permanent employment with the state of Iowa. This prohibition does not apply to a program participant who is later elected to public office.

[Filed Emergency 11/20/01, effective 11/20/01]

[Published 12/12/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 12/12/01.

Pursuant to the authority of Iowa Code section 272.2, the Board of Educational Examiners hereby amends Chapter 11, “Complaints, Investigations, Contested Case Hearings,” Iowa Administrative Code.

These amendments extend the period of time for initiation of an appeal or review on motion of the Board from 30 days to 60 days. This extension will help ensure that the Board has an opportunity to consider each proposed decision at a regular meeting prior to the expiration of the time for initiation of review on motion of the Board.

Notice of Intended Action was published in the Iowa Administrative Bulletin as ARC 0875B on August 8, 2001. A public hearing was held August 29, 2001. No one attended the public hearing, and no written comments were received. These amendments are identical to those published under Notice of Intended Action.

These amendments will become effective January 16, 2002.

These amendments are intended to implement Iowa Code chapter 272.

The following amendments are adopted.

ITEM 1. Amend subrule 11.28(1) as follows:

11.28(1) Appeal by party. Any adversely affected party may appeal a proposed decision to the board within 30 60 days after issuance of the proposed decision.

ITEM 2. Amend subrule 11.28(2) as follows:

11.28(2) Review. The board may initiate review of a proposed decision on its own motion at any time within 30 60 days following the issuance of such a decision.

[Filed 11/21/01, effective 1/16/02]

[Published 12/12/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 12/12/01.

Pursuant to the authority of Iowa Code section 272.2, the Board of Educational Examiners hereby amends Chapter 11, “Complaints, Investigations, Contested Case Hearings,” Iowa Administrative Code.

The new rules set forth procedures for initial or renewal application denials and appeals. The Board’s enabling statute, Iowa Code chapter 272, allows the Executive Director to make decisions concerning initial licenses and renewal applications. The Board’s contested case rules are applied to licensure appeals. However, no rules are in place to provide guidance to practitioners regarding the application review and appeal process.

Notice of Intended Action was published in the Iowa Administrative Bulletin as ARC 0874B on August 8, 2001. A public hearing was held on August 29, 2001. No one attended the scheduled public hearing, and no written comments were received. These amendments are identical to those published under Notice of Intended Action.

These amendments are intended to become effective January 16, 2002.

These amendments are intended to implement Iowa Code chapter 272.

The following new rules are adopted.

282—11.35(272) Application denial and appeal. The executive director is authorized by Iowa Code section 272.7 to grant or deny applications for licensure. If the executive director denies an application for an initial or exchange license, certificate, or authorization, the executive director shall send to the applicant by regular first–class mail written notice identifying the factual and legal basis for denying the application. If the executive director denies an application to renew an existing license, certificate, or authorization, the provisions of rule 11.36(272) shall apply.

11.35(1) Grounds for license denial. The executive director may deny an application based on the grounds set forth in Iowa Code sections 272.2(14) and 272.6.

11.35(2) Conviction of a crime and founded child abuse. When determining whether a person should be denied licensure based on the conviction of a crime, including a felony, or a founded report of child abuse, the executive director and the board shall consider the following:

a. The nature and seriousness of the crime or founded abuse in relation to the position sought;

b. The time elapsed since the crime or founded abuse was committed;

c. The degree of rehabilitation which has taken place since the crime or founded abuse was committed;

d. The likelihood that the person will commit the same crime or abuse again;

e. The number of criminal convictions or founded abuses committed; and

f. Such additional factors as may in a particular case demonstrate mitigating circumstances or heightened risk to public safety.

11.35(3) Fraudulent applications. An application shall be considered fraudulent pursuant to Iowa Code section 272.6(4) if it contains any false representation of a material fact or any omission of a material fact which should have been disclosed at the time of application for licensure or is submitted with a false or forged diploma, certificate, affidavit, identification, or other document material to the applicant’s qualification for licensure or material to any of the grounds for denial set forth in Iowa Code sections 272.2(14) and 272.6.

11.35(4) Appeal procedure.

a. An applicant who is aggrieved by the denial of an application for licensure and who desires to challenge the decision of the executive director must appeal the decision and request a hearing before the board within 30 calendar days of the date the notice of license denial is mailed. An appeal and request for hearing must be in writing and is deemed made on the date of the United States Postal Service nonmetered postmark or the date of personal service to the board office. The request for hearing shall specify the factual or legal errors the applicant contends were made by the executive director, must identify any factual disputes upon which the applicant desires an evidentiary hearing, and may provide additional written information or documents in support of licensure. If a request for hearing is timely made, the executive director shall promptly issue a notice of contested case hearing on the grounds asserted by the applicant.

b. The board, in its discretion, may act as presiding officer at the contested case hearing, may hold the hearing before a panel of three board members, or may request that an administrative law judge act as presiding officer. The applicant may request that an administrative law judge act as presiding officer and render a proposed decision pursuant to rule 11.8(17A,272). A proposed decision by a panel of board members or an administrative law judge is subject to appeal or review by the board pursuant to rule 11.28(17A,272).

c. Hearings concerning licensure denial shall be conducted according to the contested case procedural rules in this chapter. Evidence supporting the denial of the license may be presented by an assistant attorney general. While each party shall have the burden of establishing the affirmative of matters asserted, the applicant shall have the ultimate burden of persuasion as to the applicant’s qualification for licensure.

d. On appeal, the board may grant or deny the application for licensure. If the application for licensure is denied, the board shall state the reason or reasons for the denial and may state conditions under which the application could be granted, if applicable.

11.35(5) Judicial review. Judicial review of a final order of the board denying licensure may be sought in accordance with the provisions of Iowa Code section 17A.19 which are applicable to judicial review of an agency’s final decision in a contested case. In order to exhaust administrative remedies, an applicant aggrieved by the executive director’s denial of an application for licensure must timely appeal the adverse decision to the board.

282—11.36(272) Denial of renewal application. If the executive director denies an application to renew a license, certificate or authorization, a notice of hearing shall be issued to commence a contested case proceeding. The executive director may deny a renewal application on the same grounds as those that apply to an application for initial or exchange licensure described in subrules 11.35(1) to 11.35(3).

11.36(1) Hearing procedure. Hearings on denial of an application to renew a license shall be conducted according to the contested case procedural rules in this chapter. Evidence supporting the denial of the license may be presented by an assistant attorney general. The provisions of subrules 11.35(4) and 11.35(5) shall apply.

11.36(2) Judicial review. Judicial review of a final order of the board denying renewal of licensure may be sought in accordance with the provisions of Iowa Code section 17A.19 which are applicable to judicial review of an agency’s final decision in a contested case.

11.36(3) Impact of denial of renewal application. Pursuant to Iowa Code section 17A.18(2), if the licensee has made timely and sufficient application for renewal, an existing license shall not expire until the last day for seeking judicial review of the board’s final order denying the application or a later date fixed by order of the board or reviewing court.

11.36(4) Timeliness of renewal application. Within the meaning of Iowa Code section 17A.18(2), a timely and sufficient renewal application shall be:

a. Received by the board on or before the date the license is set to expire or lapse;

b. Signed by the licensee if submitted in paper form or certified as accurate if submitted electronically;

c. Fully completed; and

d. Accompanied by the proper fee. The fee shall be deemed improper if the amount is incorrect, the fee was not included with the application, or the licensee’s check is unsigned or returned for insufficient funds.

[Filed 11/21/01, effective 1/16/02]

[Published 12/12/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 12/12/01.

Pursuant to the authority of Iowa Code section 272.2, the Board of Educational Examiners hereby amends Chapter 12, “Criteria of Professional Practices,” Iowa Administrative Code.

These amendments are intended to comply with Iowa Code section 272.2(14) which requires the Board to state in rules what the Board considers in determining whether a person should be denied a license or whether a licensee should be disciplined based upon a criminal conviction or founded report of physical or sexual abuse of a child.

Notice of Intended Action was published in the Iowa Administrative Bulletin as ARC 0910B on September 5, 2001. A public hearing was held on September 25, 2001. No one attended the public hearing, and no written comments were received. These amendments are identical to those published under Notice.

These amendments will become effective January 16, 2002.

These amendments are intended to implement Iowa Code section 272.2(14).

The following amendments are adopted.

ITEM 1. Amend subrule 12.2(1) by adopting the following new paragraph:

e. Physical or sexual abuse of a child as evidenced by a founded abuse report against the person.

ITEM 2. Adopt the following new subrule:

12.2(2) In determining whether a person should be denied a license or whether a licensee should be disciplined based upon a criminal conviction or founded report of physical or sexual abuse of a child, the board shall consider:

a. The nature and seriousness of the founded abuse or crime in relation to the position sought;

b. The time elapsed since the founded abuse or crime was committed;

c. The degree of rehabilitation which has taken place since the incidence of founded abuse or the commission of the crime;

d. The likelihood that the person will commit the same abuse or crime again; and

e. The number of founded abuses committed or criminal convictions by the person involved.

[Filed 11/21/01, effective 1/16/02]

[Published 12/12/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 12/12/01.

Pursuant to the authority of Iowa Code section 272.2, the Board of Educational Examiners hereby amends Chapter 14, “Issuance of Practitioner’s License and Endorsements,” Iowa Administrative Code.

This amendment modifies the master educator license which became effective on August 31, 2001. The amendment reduces the term of the new license, reduces the number of years of teaching experience for the license, and eliminates one of the options due to potential conflict with other options established for the license.

Notice of Intended Action was published in the Iowa Administrative Bulletin as ARC 0911B on September 5, 2001. In addition, this amendment was simultaneously Adopted and Filed Emergency as ARC 0925B. A public hearing was held on September 25, 2001. No one attended the public hearing, and no written comments were received.

This amendment will become effective January 16, 2002.

This amendment is intended to implement Iowa Code section 272.2(14).

The following amendment is adopted.

Amend rule 282—14.113(272) as follows:

282—14.113(272) Requirements for a master educator’s license. A master educator’s license valid for eight five years may be issued to an applicant who:

1. Is the holder of or eligible for a standard license.

2. Verifies seven five years of successful teaching experience, or six years if the applicant has completed an approved induction program.

3. Completes one of the following options:

• Master’s degree in a recognized endorsement area, or

• Master’s degree in curriculum, effective teaching, or a similar degree program which has a focus on school curriculum or instruction, or .

Renewal requirements for this license are set out in 282— Chapter 17.

[Filed 11/21/01, effective 1/16/02]

[Published 12/12/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 12/12/01.

Pursuant to the authority of Iowa Code section 455B.474, the Environmental Protection Commission hereby rescinds Chapter 118, “Removal and Disposal of Polychlorinated Biphenyls (PCBs) from White Goods Prior to Processing,” and adopts new Chapter 118, “Discarded Appliance Demanufacturing,” Iowa Administrative Code.

The existing rules require that only PCB capacitors be removed from discarded appliances and anyone removing capacitors must be registered with the Department. The requirements of the registration program are minimal and are difficult to enforce. Also, the present rules do not protect the environment from releases of refrigerants or mercury during the recycling and shredding of discarded appliances.

The adopted rules establish a permit program requiring anyone wanting to engage in the demanufacture of discarded appliances to obtain a permit prior to starting operation. The adopted rules require that all electrical parts containing PCBs, components containing mercury, and refrigerants be removed prior to being recycled or disposed of. Materials removed from discarded appliances must be properly stored and recycled or disposed of properly.

Notice of Intended Action was published in the Iowa Administrative Bulletin on May 16, 2001, as ARC 0668B. The adopted rules have been modified from those published under Notice of Intended Action based on public comments received. The intent and application of the rules have been clarified. The specific changes made in response to the comments received are detailed in the responsiveness summary which is available from the Department upon request to Lavoy Haage, Supervisor, Solid Waste Section, at (515)281–4968.

A regulatory analysis, requested by the Administrative Rules Review Committee pursuant to Iowa Code section 17A.4A, was published in the October 17, 2001, Iowa Administrative Bulletin. No comments were received in regard to the regulatory analysis.

These rules are intended to implement Iowa Code sections 455B.304 and 455D.6(6).

These rules shall become effective January 16, 2002.

The following amendment is adopted.

Rescind 567—Chapter 118 and adopt the following new chapter in lieu thereof:

CHAPTER 118
DISCARDED APPLIANCE DEMANUFACTURING

567—118.1(455B,455D) Purpose. The purpose of this chapter is to implement Iowa Code chapter 455B, division IV, part 1, and section 455D.6(6) to ensure the proper removal and disposal of electrical parts containing polychlorinated biphenyls (PCBs), components containing mercury, and refrigerants (CFCs and HCFCs) from discarded appliances.

All appliances must be demanufactured before being recycled or disposed of. This chapter does not prevent the reuse or rebuilding of discarded appliances or components for their original purpose. This chapter does not apply to appliance service and repair shops unless they are in the business of demanufacturing discarded appliances. These rules do not apply to the removal of capacitors, refrigerants or components containing mercury during the maintenance or service of equipment containing such items.

118.2(1) No person that is now or plans to be involved in the demanufacturing of appliances is allowed to conduct any demanufacturing activities until an Appliance Demanufacturing Permit (ADP) has been obtained from the department of natural resources (DNR). The permit shall be issued for up to three years and is to be renewed every three years. The renewal application must be submitted to the solid waste section in the DNR central office in Des Moines a minimum of 30 days before permit expiration. This chapter does not apply to the removal of capacitors, refrigerants or components containing mercury during the maintenance or service of equipment containing such items.

118.2(2) Exceptions.

a. Any person engaged in the demanufacture of discarded appliances and registered with the department for removal and disposal of PCBs from appliances as of January 16, 2002, may continue such activity while applying for a permit provided:

(1) The department is notified within 30 days after January 16, 2002, of the person’s intent to file a permit application; and

(2) A permit application is submitted within 90 days after January 16, 2002.

(3) If an appliance demanufacturing permit has not been obtained within one year of January 16, 2002, the appliance demanufacturer must cease appliance demanufacturing activities because of a lack of a permit.

b. Any person engaged in the demanufacture of appliances as of January 16, 2002, but not required to register because the pounds of capacitors removed is less than 200 pounds in a month or 500 pounds in a year, may continue such activity while applying for a permit provided:

(1) The department is notified within 30 days after January 16, 2002, of the person’s intent to file a permit application; and

(2) A permit application is submitted within 90 days after January 16, 2002.

(3) If an appliance demanufacturing permit has not been obtained within one year of January 16, 2002, the appliance demanufacturer must cease appliance demanufacturing activities because of a lack of a permit.

118.2(3) Any person engaged in demanufacturing must be in compliance with all federal and state laws relating to the management and disposition of all hazardous wastes, hazardous materials and refrigerants.

“Appliances” means devices such as refrigerators, freezers, kitchen ranges, air–conditioning units, dehumidifiers, water heaters, furnaces, thermostats, clothes washers, clothes dryers, dishwashers, microwave ovens and commercial coolers containing capacitors, refrigerants, or components containing mercury that are discarded from all sources.

“Ballast” means an electrical device containing capacitors for the purpose of triggering high–level electrical components. A ballast provides electrical balance within the high–level electrical component circuitry.

“Capacitor” means a device for accumulating and holding a charge of electricity that consists of conducting surfaces separated by a dielectric.

“CFC” means chlorofluorocarbons, including any of several compounds used as refrigerants.

“CFR” means Code of Federal Regulations as amended through July 1, 2001.

“Demanufacturing” means the removal of components from discarded appliances including, but not limited to, capacitors, ballasts, mercury–containing components, fluorescent tubes, and refrigerants.

“Discarded” means no longer to be used for the original intended purpose.

“DOT–approved container” means those containers approved by the U.S. Department of Transportation, the agency responsible for shipping regulations for hazardous materials in the United States.

“Facility” means any landfill, transfer station, material recovery facility, salvage business, appliance service or repair shop, appliance demanufacturer, shredder operation or other party which may accept appliances for demanufacturing.

“Fixed facility” means a permitted appliance demanufacturer operating at a permanent location.

“Fluff” means the residual waste from the shredding operation after metals recovery.

“Hazardous condition” means any situation involving the actual, imminent or probable spillage, leakage, or release of a hazardous substance onto the land, into a water of the state or into the atmosphere which, because of the quantity, strength and toxicity of the hazardous substance, its mobility in the environment and its persistence, creates an immediate or potential danger to the public health or safety or to the environment.

“HCFC” means hydrochlorofluorocarbons, including any of several compounds used as refrigerants.

“Mercury–containing components” means devices containing mercury. Examples include, but are not limited to, thermostats, thermocouples, mercury switches and fluorescent tubes.

“Mobile operation” means a permitted appliance demanufacturer having equipment capable of operating in an area away from a fixed permitted location.

“PCB” or “PCBs” means polychlorinated biphenyl, which is a chemical substance that is limited to the biphenyl molecule that has been chlorinated to varying degrees, or any combination of such substances.

“Reclaim” means to reprocess refrigerant to an EPA ARI–700–88 standard.

“Recovery” means to remove all refrigerants to EPA standards.

118.4(1) Any person collecting and storing discarded appliances must store them so as to prevent electrical capacitors, refrigerant lines and compressors, and components containing mercury from being damaged and allowing a release into the environment.

118.4(2) No method of handling discarded appliances may be used which in any way damages, cuts or breaksrefrigerant lines or crushes compressors, capacitors, ormercury–containing components that may cause a release of refrigerant, PCBs or mercury into the environment.

118.4(3) No more than 1000 discarded appliances may be stored at a location prior to demanufacturing.

118.4(4) No discarded appliances may be stored for more than 180 days without demanufacturing.

567—118.5(455B,455D) Fixed facility and mobile operations. The following removal and disposal requirements must be met by both fixed and mobile facilities:

118.5(1) Demanufacturing of appliances must take place on an impervious floor (including but not limited to concrete, ceramic tile, or metal, but not wood). Any spills must be contained and picked up with proper equipment and procedures and properly disposed of.

118.5(2) The demanufacturing facility must be located 50 feet or more from a well and any water of the state. A permanent facility must meet local zoning requirements.

118.5(3) An applicant must establish a unique marking system, to be submitted with the permit application forDNR approval, signifying that all refrigerants, PCBs, and mercury–containing components have been removed. The unique marking system must be a minimum of nine inches square and must be applied to the appliances after demanufacturing.

567—118.6(455B,455D) Training. Beginning January 1, 2003, at least one owner or full–time employee of an appliance demanufacturing facility must have completed a DNR–approved training course covering, at a minimum, the following topics. A trained person must be on site at all times when discarded appliances are being demanufactured.

1. Regulations and procedures for the removal of refrigerant (CFCs, HCFCs, and ammonia) from appliances.

2. Regulations and procedures for the removal of PCB capacitors from appliances.

3. Regulations and procedures for the removal ofmercury–containing components from appliances.

4. Regulations for the identification and removal of asbestos from ammonia–gas–operated refrigerators and air conditioners.

5. Safety issues.

6. Spill prevention and appliance cleanup procedures appropriate for appliance demanufacturing.

7. Proper storage, transportation, and disposal requirements for all recovered wastes from the appliance demanufacturing process.

8. The proper methods of loading and unloading discarded appliances.

9. Hands–on training in the demanufacturing process.

118.7(1) The permit application for appliance demanufacturing must contain the following information to be submitted on Form 542–8005.

a. Facility name.

b. Office address.

c. Location of demanufacturing facility if different from office address.

d. Contact person or official responsible for the operation of the facility.

e. Type, source and expected number or weight of appliances to be handled per year.

f. Schematic site plans of a fixed facility including the schematic floor plans of any buildings showing where activities will take place and where waste is stored.

g. For mobile operations, provide schematic plans, or a description and photographs, of the mobile van or trailer.

h. A copy of the EPA Refrigerant Recovery or Recy–cling Device Acquisition Certification certifying that the equipment meets EPA requirements.

i. Operation plan: a detailed summary of the activities that will be performed on each type of appliance that will be considered for demanufacturing. This summary must include step–by–step activities of the demanufacturing process.

j. A contingency plan detailing specific procedures to be used in case of equipment breakdown or fire, including methods to be used to remove or dispose of accumulated waste.

k. A copy of the Authorization to Discharge (Stormwater) Permit number where applicable.

l. A copy of EPA notification of PCB activity. Facilities with a PCB storage area must register with Form 7710–53. This form may be obtained by contacting Fibers and Organics Branch, Office of Pollution Prevention and Toxics, United States Environmental Protection Agency, Ariel Rios Building (7404), 1200 Pennsylvania Avenue NW, Washington, DC 20460.

m. Submittal of documentation showing compliance with rule 118.6(455B,455D).

n. A copy of the unique marking system to be applied to each discarded appliance after demanufacturing.

118.7(2) Applications for permit renewal must address any changes to the information previously submitted pursuant to subrule 118.7(1). If there has been no change in an item, the applicant shall indicate such on the application form.

118.7(3) An application for permit amendment must be submitted and the amendment issued by the DNR before significant changes may be made by the permit holder to the process or facility.

118.8(1) Existing registered facilities and existing facilities that were previously exempt from registration will be inspected by DNR prior to issuance of the initial demanufacturing permit. The permit will not be issued until the initial inspection report shows that the facility is in compliance with the proposed permit and these rules.

118.8(2) New facilities (facilities not in operation on January 16, 2002) will be inspected by DNR prior to start–up. The initial inspection will be completed within 30 days of receipt of notice from the permit holder stating that the facility is ready for inspection. The facility may not start operation until the permit holder is notified by DNR that the initial inspection shows the facility is in compliance with the permit and these rules.

118.8(3) Appliance demanufacturing facilities will be inspected regularly by DNR.

118.9(1) All owners of refrigerant recovery and recycling equipment must provide certification to EPA that they have acquired and are using EPA–approved equipment.

118.9(2) Refrigerants in appliances must be recovered to EPA standards using equipment meeting EPA requirements (40 CFR Part 82.162), or the person certified to remove refrigerants must verify that the refrigerant has been removed from the appliance before the appliance is removed for recycling or disposal.

118.9(3) The removal of refrigerants from refrigeration appliances must take place in an area where the temperature of the surrounding air and of the appliance being demanufactured is 45 degrees Fahrenheit or greater.

118.9(4) Facilities that are not EPA–certified refrigerant reclaimers must ship recovered refrigerant to an EPA–certified reclamation facility or properly dispose of the refrigerant at an EPA–permitted facility. Reclamation may only take place on site if the appliance demanufacturing facility is certified as a reclaimer by the EPA. Any refrigerants that cannot be reclaimed or recycled must be properly disposed of by incineration or other acceptable means.

118.9(5) Compressor oil.

a. Compressor oil from refrigeration unit compressors may be removed during the demanufacturing process, and any oil removed must be stored in accordance with 567— 119.5(455D,455B).

b. Compressor oils are not hazardous and may be burned in used–oil–fired space heaters provided the heaters have a capacity of 0.5 BTUs (British thermal units) per hour or more.

c. Compressor oils may be sold to a marketer of used oil.

118.9(6) Ammonia–gas–operated refrigerators and air conditioners.

a. Ammonia gas must be vented into water.

b. Sodium chromate must be removed from refrigeration equipment containing sodium chromate.

c. Sodium chromate liquid is a hazardous waste and must be disposed of at an EPA–permitted facility.

d. Removal of sodium chromate liquid must take place on an impervious surface. In case of a spill, the spilled liquid and the material used as absorbent must be handled as a hazardous waste and disposed of as a hazardous waste.

e. Sodium chromate must be stored in a DOT–approved container that shows no sign of damage. The container must be labeled with a proper EPA–approved chromium label stating “chromium” or “hazardous waste” (40 CFR Part 262.32 and 49 CFR Part 172.304) in both English and the predominant language of any non–English–reading workers.

f. Prior to shipment, sodium chromate must be packaged to prevent leakage, and all containers must be sealed.

g. Persons generating sodium chromate waste must obtain an EPA identification number and maintain records to determine if they are small– or large–quantity hazardous waste generators based on a yearly accumulation.

h. Asbestos insulation found on refrigerant lines must be removed. Proper protective equipment must be used and proper procedures must be followed when removing asbestos. Safety requirements shall comply with Occupational Safety and Health Administration (OSHA) regulations.

i. Asbestos must be moistened and double bagged, in accordance with 40 CFR Part 61.150, prior to disposal at the approved landfill for the person’s area. A person who needs to dispose of asbestos must contact the landfill and make arrangements for the disposal and further packaging and handling procedures.

118.10(1) All components containing mercury shall be removed from appliances. Precautions shall be taken to prevent breakage of the mercury–containing components and the release of mercury.

118.10(2) All mercury–containing component storage containers must be labeled with the proper EPA–approved mercury label stating “mercury” or “hazardous waste”(49 CFR Part 262.34(a)(2)) in both English and the predominant language of any non–English–reading workers. In addition to the label, the date when the first mercury–containing component was placed in the container must be affixed on the container (40 CFR Part 162). Storage of mercury is limited to one year after which it must be transported to an EPA–approved recycler.

118.10(3) All mercury containers must be sealed prior to shipment.

118.10(4) All components containing mercury must be disposed of at an EPA–approved mercury recycling/recovery facility.

118.10(5) Fluorescent tubes, lamps, bulbs, and similar items must be placed in a container and packaged to prevent breakage for shipment to an EPA–approved recycler or proc–essed in a manner in compliance with state and federal regulations.

118.11(1) All capacitors must be removed from discarded appliances.

118.11(2) All capacitors are assumed to contain PCBs unless proven otherwise by an approved laboratory, unless the words “No PCBs” have been imprinted on the body of the capacitor by the manufacturer, or unless the manufacturer certifies in writing that no PCBs were used in the manufacture of the appliance or capacitor.

118.11(3) All PCB capacitors must be disposed of in accordance with subrule 118.11(5).

118.11(4) Capacitors that are proven not to contain PCBs may be disposed of or recycled as any other nonhazardous solid waste.

118.11(5) Containers for storage and disposal of PCB items. PCB capacitors must be stored and transported according to the Toxic Substances Control Act (TSCA) (40 CFR Part 761) and disposed of at a TSCA–permitted disposal facility. Facilities used for the storage of PCB items designated for disposal must meet the following storage requirements:

a. PCB items must be stored in a manner that provides adequate protection from the elements and adequate secondary containment. This storage must take place on an impervious material.

b. The site must be located above the 100–year flood water elevation.

c. All capacitors containing or suspected of containing PCBs must be placed in a DOT–approved container that shows no signs of damage. The bottom of the container must be filled to a depth of two inches with absorbent material such as sand, oil–dry, or kitty litter.

d. All DOT–approved containers must be affixed with an EPA–approved 6“ x 6“ yellow label stating “PCBs” (40 CFR Part 761.45) in both English and the predominant language of any non–English–reading workers.

e. The date when the first capacitor was placed in the container must also be placed on the container.

f. Nonleaking small PCB capacitors may be stored for up to 30 days from the date of removal in an area that does not comply with the requirements in 118.11(5)“a” to “e” provided a notation is placed on the PCB item indicating the date the item was removed from the appliance.

g. All containers must be sealed prior to shipment.

h. Capacitors may be stored for no more than 270 days.

118.11(6) Transportation. The labeled and dated container must be transported by an EPA–approved PCB transporter using an EPA Uniform Hazardous Waste form. From the first date entered on the container, the demanufacturer has one year to have the contents buried at a TSCA landfill or incinerated at a TSCA disposal facility (40 CFR Part 761.65). This burial or incineration must be documented and this rec– ord kept by the demanufacturer for three years from the date the PCB waste was accepted by the initial transporter.

118.12(1) Any spills from leaking or cracked capacitors must be handled by placing the capacitor and any contaminated rags, clothing, and soil into a container for shipment to an EPA–approved waste disposal facility. Spills of liquid PCBs which occur outside a DOT–approved container must be cleaned and the cleanup verified by sampling as described at 40 CFR Part 761.130. Detailed records of such cleanups and sampling must be maintained as described at 40 CFR Part 761.180.

118.12(2) Mercury spill kits (with a mercury absorbent in the kits) must be on hand and used in the event of a mercury spill. Any waste from the cleanup of a mercury spill must be disposed of as a hazardous waste.

118.12(3) In the event a spill results in a hazardous condition, the facility must notify the department of natural resources at (515)281–8694 and the local police department or the sheriff’s office of the affected county of the occurrence of a hazardous condition as soon as possible, but no later than six hours after the onset or discovery of a spill.

118.13(1) A permitted appliance demanufacturing facility shall keep the following records on a calendar–year basis:

a. The name of the facility or facilities to which deman– ufactured appliances were shipped, the date of each shipment, the weight of appliances in each shipment and the name and address of the transporter.

b. The name of the facility to which components containing mercury were shipped, including fluorescent tubes, the date of each shipment, the number of components and number of tubes shipped and the name and address of the transporter.

c. The name of the facility to which sodium chromate was shipped for disposal, the date of each shipment, the amount shipped and the name and address of the transporter.

d. The name of the facility to which refrigerants were shipped to be reclaimed, the date of each shipment, the amount shipped and the name and address of the transporter.

e. The name of the facility to which refrigerants were shipped to be disposed of, the date of each shipment, the amount shipped and the name and address of the transporter.

f. The name of the facility to which PCB capacitors and ballasts were shipped, the date of each shipment, the weight of capacitors shipped and the name and address of the transporter.

118.13(2) Annual reports with the information required in subrule 118.13(1) are:

a. To be sent to the solid waste section in the DNR central office in Des Moines, and a copy to the appropriate field office;

b. Due January 31 each year for the activities of the previous calendar year;

c. To be submitted on forms provided by the department, which may be submitted electronically when the electronic format is completed; and

d. To be retained by the permit holder for at least three years.

118.14(1) Fluff from the shredding of demanufactured appliances must be sampled quarterly, at a minimum, and analyzed according to Test Methods for Evaluation of Solid Waste, Physical–Chemical Methods SW 846, USEPA, Third Edition 1986, for the presence of PCBs, and according to the toxicity characteristic leaching procedure (TCLP) for lead and mercury. The waste shall be sampled once a day for seven consecutive working days to make a composite sample. If the total PCB amount is less than 50 ppm and if the TCLP results for mercury and lead are below 0.20 ppm and 5.0 ppm, respectively, the fluff may be landfilled.

118.14(2) No person or facility in the state may shred, crush, or bale any appliances that have not been demanufactured.

These rules are intended to implement Iowa Code sections 455B.304 and 455D.6(6).

[Filed 11/21/01, effective 1/16/02]

[Published 12/12/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 12/12/01.

Pursuant to the authority of Iowa Code subsection 331.439(1)“d,” the Department of Human Services hereby amends Chapter 25, “Disability Services Management,” appearing in the Iowa Administrative Code.

The Council on Human Services adopted these amendments November 14, 2001. Notice of Intended Action regarding these amendments was published in the Iowa Administrative Bulletin on September 19, 2001, as ARC 0933B.

These amendments remove the County Board of Supervisors as the final appeal body for appeals under County Management Plans. A recent court decision, Salcido v. Woodbury County, et al., determined that an appeal of denial of services under the County Management Plan must be to an impartial decision maker. The court determined that the Board of Supervisors is not impartial.

The State County Management Committee recommended this change to the Department for adoption by the Council on Human Services. The county must submit the appeal system change selected as an amendment to the county plan to be approved by the Director of the Department.

The Committee considered recommending listing appeal system options, but chose to state only what could not be done and to leave the final design of each county’s appeal system to the county.

Various options that the county might select include contracting with the Department of Inspections and Appeals, establishing a multicounty appeal board, or establishing a consumer appeal board.

These amendments do not provide for waivers to the appeal process. A person who is denied funding from a county for services covered under the County Management Plan has a constitutionally protected right to a hearing on that denial.

These amendments are identical to those published under Notice of Intended Action.

These amendments are intended to implement Iowa Code section 331.439.

These amendments shall become effective February 1, 2002.

The following amendments are adopted.

ITEM 1. Amend subrule 25.13(2), paragraph “j,” as follows:

j. Appeals. The county shall develop and implement a process for appealing the decisions of the county or its agent. This appeal process shall be based on objective criteria, specify time frames, provide for notification in accessible formats of the decisions to all parties, and provide some assistance to consumers in using the process. Responsibility for the final administrative decision on an appeal shall not rest with the county board of supervisors. If the appellant has state case status, responsibility for the final administrative decision on an appeal shall rest with the department, following the procedures established in 441—Chapter 7.

ITEM 2. Amend the implementation clause following 441—Chapter 25, Division II, as follows:

These rules are intended to implement Iowa Code sections 331.424A, 331.439 as amended by 1999 Iowa Acts, chapter 160, and 331.440.

[Filed 11/14/01, effective 2/1/02]

[Published 12/12/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 12/12/01.

Pursuant to the authority of Iowa Code section 217.6, the Department of Human Services hereby amends Chapter 25, “Disability Services Management,” appearing in the Iowa Administrative Code.

The Council on Human Services adopted these amendments November 14, 2001. Notice of Intended Actionregarding these amendments was published in the IowaAdministrative Bulletin on September 19, 2001, as ARC 0934B.

These amendments make changes to rules governing risk pool funding to implement changes mandated by the General Assembly in 2001 Iowa Acts, House File 727, sections 6, 7, and 8, as follows:

• Definitions are added for “net expenditure amount” and “services fund” and the definition of “aggregate application” is modified to use the term “net expenditures” rather than other cost or budget references.

• A report on the status of risk pool funds from the Department to the Risk Pool Board is required on or before March 1 and September 1 of each fiscal year.

• The application process is changed to use net expenditures rather than other expenditure or budgeting measures. An additional qualification criterion for application to the risk pool fund is added to allow a county that starts a year with a fund balance that is less than 10 percent of a county’s gross expenditures and with a projected need that is greater than 101 percent of the budgeted net expenditures to qualify to apply.

• Repayment provisions are changed to require a county that must repay risk pool loan funds to pay at least 50 percent in the first succeeding fiscal year and the remainder in the second succeeding fiscal year.

These amendments do not provide for waivers because these changes were required by the General Assembly with no provision for exceptions.

These amendments are identical to those published under Notice of Intended Action.

These amendments are intended to implement Iowa Code section 426B.5, subsection 3, as amended by 2001 Iowa Acts, House File 727, sections 6, 7, and 8.

These amendments shall become effective February 1, 2002.

The following amendments are adopted.

ITEM 1. Amend rule 441—25.61(426B) as follows:

Amend the definition of “aggregate application” as follows:

“Aggregate application” means the request for funding when a county has an unanticipated cost net expenditure amount for mental health, mental retardation, and developmental disabilities services fund expenditures that would result in the county’s current fiscal year budget budgeted net expenditure amount exceeding the sum of 105 percent of the county’s current fiscal year budget budgeted net expenditure amount and the county’s prior fiscal year accrual ending fund balance exceeding 25 percent of the prior fiscal year gross services fund expenditures year’s net expenditure amount.

Adopt the following new definitions in alphabetical order:

“Net expenditure amount” means a county’s gross expenditures from the services fund for a fiscal year as adjusted by subtracting all services fund revenues for that fiscal year that are received from a source other than property taxes, as calculated on a modified accrual basis.

“Services fund” means a county’s mental health, mental retardation, and developmental disabilities services fund created in Iowa Code section 331.424A.

ITEM 2. Amend rule 441—25.62(426B) by adopting the following new subrule 25.62(9):

25.62(9) Report. On or before March 1 and September 1 of each fiscal year, the department of human services shall provide the risk pool board with a report of the financial condition of each funding source administered by the board. The report shall include, but is not limited to, an itemization of the funding source’s balances, types and amount of revenues credited and payees and payment amounts for the expenditures made from the funding source during the reporting period.

ITEM 3. Amend subrule 25.63(1) as follows:

25.63(1) Applicants. A county may make an aggregate or individual application at any time on or before April 1 of any given year for the current fiscal year budget whenever the projected need net expenditure amount exceeds the sum of 105 percent of the county’s current fiscal year budget budgeted net expenditure amount and the county’s prior fiscal year accrual ending fund balance exceeds 25 percent of the prior fiscal year gross services fund expenditures year’s net expenditure. However, if a county’s services fund ending balance in the previous fiscal year was less than 10 percent of the amount of the county’s gross expenditures from the services fund for that fiscal year and the county has a projected net expenditure amount for the current fiscal year that is in excess of 101 percent of the budgeted net expenditure amount for the current fiscal year, the county shall be considered to have met the basic eligibility requirement and is qualified for risk pool assistance.

The purpose of the mental health risk pool is to assist counties whose expenditures in the mental health, mental retardation, and developmental disabilities services fund exceed budgeted costs due to unanticipated expenses for new individuals or other unexpected factors. The mental health risk pool is not intended for multiyear usage or as a source of planned revenue.

ITEM 4. Amend subrule 25.65(1), paragraph “a,” as follows:

a. A loan was granted to the county because the county did not levy the maximum amount allowed for the county’s mental health, mental retardation, and developmental disabilities services fund under Iowa Code section 331.424A. The county shall be required to repay the risk pool loan funds during the two succeeding fiscal years, with at least 50 percent due in the first succeeding fiscal year and the remainder due in the second succeeding fiscal year. The repayment amount shall be limited to the amount by which the actual amount levied was less than the maximum amount allowed.

[Filed 11/14/01, effective 2/1/02]

[Published 12/12/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 12/12/01.

Pursuant to the authority of Iowa Code section 249A.4, the Department of Human Services hereby amends Chapter 77, “Conditions of Participation for Providers of Medical and Remedial Care,” Chapter 78, “Amount, Duration and Scope of Medical and Remedial Services,” and Chapter 79, “Other Policies Relating to Providers of Medical and Remedial Care,” appearing in the Iowa Administrative Code.

The Council on Human Services adopted these amendments November 14, 2001. Notice of Intended Action regarding these amendments was published in the Iowa Administrative Bulletin on October 3, 2001, as ARC 0961B.

These amendments revise rules governing conditions of participation, coverage, and payment for independent laboratories in response to an assessment of the rules completed under the rules review process mandated by Executive Order Number 8. These revisions:

• Define an “independent laboratory.” The Department of Inspections and Appeals noted that Medicare no longer has a certification program for independent laboratories although the Medicare carrier uses the term from a reimbursement perspective. An independent laboratory is defined as a laboratory that is independent of attending and consulting physicians’ offices, hospitals, and critical access hospitals.

• Update a Code of Federal Regulations reference.

These amendments do not provide for waivers because the amendments only add a definition for clarification and correct a reference.

Rules 441—77.20(249A) and 441—78.20(249A) were revised in response to public comment to delete the term “emergency hospital” and to add “critical access hospitals” in the definition of “independent laboratory.”

These amendments are intended to implement Iowa Code section 249A.4.

These amendments shall become effective February 1, 2002.

The following amendments are adopted.

ITEM 1. Amend rule 441—77.20(249A) as follows:

441—77.20(249A) Independent laboratories. Independent laboratories are eligible to participate providing they are certified to participate as a laboratory in the Medicare program (Title XVIII of the Social Security Act). An independent laboratory is a laboratory that is independent of attending and consulting physicians’ offices, hospitals, and critical access hospitals.

This rule is intended to implement Iowa Code section 249A.4.

ITEM 2. Amend rule 441—78.20(249A) as follows:

441—78.20(249A) Independent laboratories. Payment will be made for medically necessary laboratory services provided by independent laboratories that are independent of attending and consulting physicians’ offices, hospitals, and critical access hospitals and that are certified to participate in the Medicare program.

This rule is intended to implement Iowa Code section 249A.4.

ITEM 3. Amend rule 441—79.13(249A) as follows:

441—79.13(249A) Requirements for enrolled Medicaid providers supplying laboratory services. Medicaid enrolled entities providing laboratory services are subject to the provisions of the Clinical Laboratory Improvement Amendments of 1988 (CLIA), Public Law 100–578, and implementing federal regulations published at 42 CFR Part 493 as amended to February 28, 1992 December 29, 2000. Medi–caid payment shall not be afforded for services provided by an enrolled Medicaid provider supplying laboratory services that fails to meet these requirements. For the purposes of this rule, laboratory services are defined as services to examine human specimens for the diagnosis, prevention or treatment of any disease or impairment of, or assessment of, the health of human beings.

This rule is intended to implement Iowa Code section 249A.4.

[Filed 11/14/01, effective 2/1/02]

[Published 12/12/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 12/12/01.

Pursuant to the authority of Iowa Code section 249A.4, the Department of Human Services hereby amends Chapter 77, “Conditions of Participation for Providers of Medical and Remedial Care,” appearing in the Iowa Administrative Code.

The Council on Human Services adopted this amendment November 14, 2001. Notice of Intended Action regarding this amendment was published in the Iowa Administrative Bulletin on October 3, 2001, as ARC 0962B.

This amendment corrects a reference related to provider enrollment of lead inspection agencies. This incorrect cross reference was identified while the Department was completing the rule assessment mandated by Executive Order Number 8.

This amendment does not provide for waivers because the amendment only corrects a cross reference.

This amendment is identical to that published under Notice of Intended Action.

This amendment is intended to implement Iowa Code section 249A.4.

This amendment shall become effective February 1, 2002.

The following amendment is adopted.

Amend rule 441—77.40(249A) as follows:

441—77.40(249A) Lead inspection agency providers. Lead inspection agency providers are eligible to participate in the Medicaid program if they are certified pursuant to 641—subrule 70.5(4) 70.5(5), department of public health.

This rule is intended to implement Iowa Code section 249A.4.

[Filed 11/14/01, effective 2/1/02]

[Published 12/12/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 12/12/01.

Pursuant to the authority of Iowa Code section 249A.4, the Department of Human Services hereby amends Chapter 78, “Amount, Duration and Scope of Medical and Remedial Services,” appearing in the Iowa Administrative Code.

The Council on Human Services adopted these amendments November 14, 2001. Notice of Intended Actionregarding these amendments was published in the IowaAdministrative Bulletin on September 19, 2001, as ARC 0935B.

These amendments update the prior authorization criteria for psychostimulant drugs, erythropoietin, and granulocyte colony stimulating factor. The amendments remove the drug dipryidamole from the list of drugs requiring prior authorization and add prior authorization for the drug palivizumab.

These changes update drug prior authorization criteria to reflect current medical practice.

These amendments allow the fiscal agent to make exceptions to the stated prior authorization criteria following review of submitted documentation regarding necessity for psychostimulant drugs, for continuation of erythropoietin therapy for treatment of anemia based on a hematocrit level of over 36 percent, for therapy with granulocyte colony stimulating factor, and for therapy with palivizumab.

There is no provision for further waivers, as the prior approval requirements should apply equally to all other Medi–caid recipients. Individuals may request a waiver of the prior authorization requirements under the Department’s general rule on exceptions at rule 441—1.8(17A,217).

Eight public hearings were held around the state. No one attended the hearings. One written comment was received requesting that changes be made to the criteria for prior authorization for the drug erythropoietin.

Subrule 78.1(2), paragraph “a,” subparagraph (3), twenty–sixth unnumbered paragraph, numbered paragraph “2,” and subrule 78.28(1), paragraph “d,” subparagraph (10), numbered paragraph “2,” were revised by adding the phrase “or equal to” in two places in the criteria for prior authorization for the drug erythropoietin in response to the public comment.

These amendments are intended to implement Iowa Code section 249A.4.

These amendments shall become effective February 1, 2002.

The following amendments are adopted.

ITEM 1. Amend subrule 78.1(2), paragraph “a,” subparagraph (3), as follows:

Amend the first unnumbered paragraph as follows:

Payment for amphetamines and combinations of amphetamines with other therapeutic agents and amphetamine–like sympathomimetic compounds used for obesity control, including any combination of these compounds with other therapeutic agents, will be provided when there is a diagnosis of narcolepsy, hyperkinesis in children, or senile depression but not for obesity control. Prior authorization is required for psychostimulants for recipients 21 years of age or older. Prior approval shall be granted if there is documentation of one of the following:

The fiscal agent shall consider other conditions on an individual basis after review of documentation submitted regarding the need for psychostimulants. Psychostimulantsinclude the following medications: dextroamphetamine,amphetamine mixtures, methampethamine, methylphenidate, pemoline (Cylert), and modafinil (Provigil). (Cross–reference 78.28(1)“a”)

Amend the twenty–fourth unnumbered paragraph as follows:

Amend the twenty–sixth unnumbered paragraph as follows:

Prior authorization is required for epoetin erythropoietin prescribed for outpatients for the treatment of anemia. Patients who meet all of the following criteria may receive prior authorization for the use of epoetin erythropoietin:

1. Hematocrit less than 30 percent. If renewal of prior authorization is being requested, hematocrit over 36 percent will require dosage reduction or discontinuation. The fiscal agent may consider continuing therapy for higher hematocrit values on an individual basis after review of the evidence provided regarding need for continued therapy. Hematocrit laboratory values must be dated within six weeks of the prior authorization request.

2. Transferrin saturation greater than or equal to 20 percent (transferrin saturation is calculated by dividing serum iron by the total iron binding capacity), or ferritin levels greater than or equal to 100 mg/ml, or on concurrent therapeutic iron therapy. Transferrin saturation or ferritin levels must be dated within three months of the prior authorization request.

3. Laboratory values must be current to within three months of the prior authorization request. For HIV–infected patients, the endogenous serum erythropoietin level must be less than or equal to 500 mU/ml to initiate therapy.

4. For AZT–treated patients, endogenous serum erythropoetin level needs to be greater than 500 mU/ml. No evidence of untreated GI bleeding, hemolysis, or Vitamin B–12, iron or folate deficiency.

6. Exceptions may be made if the patient does not meet criteria “2,” but is on aggressive oral iron therapy (i.e., twice or three times per day dosing). The prior authorization for this exception would be for a limited time. (Cross–reference 78.28(1)“d”(10))

Amend the twenty–seventh unnumbered paragraph as follows:

Prior authorization is required for filgrastim prescribedfor outpatients whose conditions meet the following indications for use: therapy with granulocyte colony stimulating factor. Laboratory values for complete blood and platelet count must be contained as directed by the manufacturer’s instructions. The fiscal agent may require dose reduction and discontinuation of therapy based on the manufacturer’s guidelines. Payment shall be authorized for one of the following uses:

1. Decrease the incidence of infection due to severeneutropenia caused by myelosuppressive anticancer therapy. For this indication, the following criteria apply: Filgrastim therapy can continue until the postnadir, absolute neutrophil count is greater than 10,000 cells per cubic millimeter and routine CBC and platelet counts are required twice per week. Prevention or treatment of febrile neutropenia in patients with malignancies who are receiving myelosuppressive anticancer therapy.

2. Decrease the incidence of infection due to severe neutropenia in AIDS patients on zidovudine. For this indication, the following criteria apply: Evidence of neutropenic infection exists or absolute neutrophil count is below 750 cells per cubic millimeter, filgrastim is adjusted to maintain absolute neutrophil count of approximately 1000 cells per cubic millimeter, and routine CBC and platelet counts are required once per week. Treatment of neutropenia in patients with malignancies undergoing myeloablative chemotherapy followed by bone marrow transplant.

The fiscal agent may consider other uses on an individual basis after review of the evidence provided regarding the need for therapy with granulocyte colony stimulating factor. (Cross–reference 78.28(1)“d”(11))

Adopt the following new paragraph at the end of subparagraph (3):

Prior authorization is required for therapy with palivizumab. Payment for palivizumab shall be authorized for patients who meet one of the following criteria:

1. Patient is less than 24 months of age at start of therapy and has chronic lung disease requiring medication or oxygen within the last six months.

2. Patient is less than 12 months of age at start of therapy with a gestational age of less than or equal to 28 weeks.

3. Patient is less than 6 months of age at start of therapy with a gestational age between 28 weeks and 31 weeks.

4. Patient is less than 6 months of age at start of therapy with a gestational age of 32 weeks to 35 weeks and has at least one additional risk factor.

The fiscal agent will consider other conditions on an individual basis after review of submitted documentation. (Cross–reference 78.28(1)“d”(21))

ITEM 2. Amend subrule 78.28(1) as follows:

Amend paragraph “a” as follows:

a. Prior approval is required for amphetamines and combinations of amphetamines with other therapeutic agents and amphetamine–like sympathomimetic compounds used for obesity control, including any combination of these compounds with other therapeutic agents. Payment for these medications will be provided when there is a diagnosis of narcolepsy, hyperkinesis in children, or senile depression and not for obesity control. Prior authorization is required for psychostimulants for recipients 21 years of age or older. Prior approval shall be granted if there is documentation of one of the following:

The fiscal agent shall consider other conditions on an individual basis after review of documentation submitted regarding the need for psychostimulants. Psychostimulantsinclude the following medications: dextroamphetamine,amphetamine mixtures, methampethamine, methylphenidate, pemoline (Cylert), and modafinil (Provigil). (Cross–reference 78.1(2)“a”(3))

Rescind and reserve paragraph “d,” subparagraph (8).

Amend paragraph “d,” subparagraphs (10) and (11), as follows:

(10) Prior authorization is required for epoetin erythropoietin prescribed for outpatients for the treatment of anemia. Patients who meet all of the following criteria may receive prior authorization for the use of epoetin erythropoietin:

1. Hematocrit less than 30 percent. If renewal of prior authorization is being requested, hematocrit over 36 percent will require dosage reduction or discontinuation. The fiscal agent may consider continuing therapy for higher hematocrit values on an individual basis after review of the evidence provided regarding the need for continuing therapy. Hemat–ocrit laboratory values must be dated within six weeks of the prior authorization request.

2. Transferrin saturation greater than or equal to 20 percent (transferrin saturation is calculated by dividing serum iron by the total iron binding capacity), or ferritin levels greater than or equal to 100 mg/ml, or on concurrent therapeutic iron therapy. Transferrin saturation or ferritin levels must be dated within three months of the prior authorization request.

3. Laboratory values must be current to within three months of the prior authorization request. For HIV–infected patients, the endogenous serum erythropoietin level must be less than or equal to 500 mU/ml to initiate therapy.

4. For AZT treated patients endogenous serum erythropoetin level needs to be greater than 500 mU/ml. No evidence of untreated GI bleeding, hemolysis, or Vitamin B–12, iron or folate deficiency.

(11) Prior authorization is required for filgrastim prescribed for outpatients whose conditions meet the following indications for use: therapy with granulocyte colony stimulating factor. Laboratory values for complete blood and platelet count must be contained as directed by the manufacturer’s instructions. The fiscal agent may require dose reduction and discontinuation of therapy based on the manufacturer’s guidelines. Payment shall be authorized for one of the following uses:

1. Decrease the incidence of infection due to severeneutropenia caused by myelosuppressive anticancer therapy. For this indication, the following criteria apply: Filgrastim therapy can continue until the postnadir, absolute neutrophil count is greater than 10,000 cells per cubic millimeter and routine CBC and platelet counts are required twice per week. Prevention or treatment of febrile neutropenia in patients with malignancies who are receiving myelosuppressive anticancer therapy.

2. Decrease the incidence of infection due to severe neutropenia in AIDS patients on zidovudine. For this indication, the following criteria apply: Evidence of neutropenic infection exists or absolute neutrophil count is below 750 cells per cubic millimeter, filgrastim is adjusted to maintain absolute neutrophil count of approximately 1000 cells per cubic millimeter, and routine CBC and platelet counts are required once per week. Treatment of neutropenia in patients with malignancies undergoing myeloablative chemotherapy followed by bone marrow transplant.

Amend paragraph “d” by adopting the following new subparagraph (21):

(21) Prior authorization is required for therapy with palivizumab. Payment for palivizumab shall be authorized for patients who meet one of the following criteria:

1. Patient is less than 24 months of age at start of therapy and has chronic lung disease requiring medication or oxygen within the last six months.

2. Patient is less than 12 months of age at start of therapy with a gestational age of less than or equal to 28 weeks.

3. Patient is less than 6 months of age at start of therapy with a gestational age between 28 weeks and 31 weeks.

4. Patient is less than 6 months of age at start of therapy with a gestational age of 32 weeks to 35 weeks and has at least one additional risk factor.

The fiscal agent will consider other conditions on an individual basis after review of submitted documentation.

[Filed 11/14/01, effective 2/1/02]

[Published 12/12/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 12/12/01.

Pursuant to the authority of Iowa Code section 234.6, the Department of Human Services hereby amends Chapter 152, “Contracting,” appearing in the Iowa Administrative Code.

The Council on Human Services adopted these amendments November 14, 2001. Notice of Intended Action was published in the Iowa Administrative Bulletin on October 3, 2001, as ARC 0969B.

These amendments revise the Department’s policy governing contracting for rehabilitative treatment and supportive services as follows. The amendments:

• Eliminate references to a specified number of provider employees when determining the applicability of civil rights laws to a given provider. Contracts will now conform to changes already made in federal regulations with regard to the conditions that providers must meet. Civil rights laws now apply regardless of the number of people a provider employs.

• Correct an insurance term.

• Change the frequency of on–site visits required of the project manager. The project manager will be required to make at least one on–site visit to each provider of rehabilitative treatment or supportive services during the term of the contract, rather than one per year. This change is consistent with a previously adopted change to extend contract length from one year to two years.

These amendments do not provide for waivers because compliance with civil rights laws is required by federal regulations. Individuals may request a waiver of Department policy under the Department’s general rule on exceptions at rule 441—1.8(17A,217).

These amendments are identical to those published under Notice of Intended Action.

These amendments are intended to implement Iowa Code section 234.6.

These amendments shall become effective February 1, 2002.

EDITOR’S NOTE: Pursuant to recommendation ofthe Administrative Rules Review Committee publishedin the Iowa Administrative Bulletin, September 10,1986, the text of these amendments [152.2(4) to152.2(7), 152.2(9), 152.2(21)“b,” 152.23(1)] is beingomitted. These amendments are identical to thosepublished under Notice as ARC 0969B, IAB 10/3/01.

[Filed 11/14/01, effective 2/1/02]
[Published 12/12/01]

[For replacement pages for IAC, see IAC Supplement 12/12/01.]

Pursuant to the authority of Iowa Code section 135B.7, the Department of Inspections and Appeals hereby amends Chapter 51, “Hospitals,” Iowa Administrative Code.

The Hospital Licensing Board approved adoption of these amendments on October 24, 2001, and the Board of Health approved adoption on November 14, 2001.

Notice of Intended Action was published in the Iowa Administrative Bulletin on August 8, 2001, as ARC 0870B. Written comments concerning these amendments were received from the Department of Natural Resources and the Department of Workforce Development.

These adopted amendments update cross references to the administrative rules of the Department of Natural Resources and of the Labor Services Division of the Department of Workforce Development. Items 1 and 2 update cross references to the Labor Services Division. The Division’s agency number and chapters were erroneously referenced.

These amendments have been modified since their publication under Notice in response to public comment received from the Department of Natural Resources and the Department of Workforce Development. In Items 1 and 2, the chapters referenced have been updated in addition to the agency identification number previously amended. Items 3 and 6 were modified because the incorrect paragraph was cross referenced in the Notice; therefore, paragraph “tt” has been replaced with paragraph “ttt.” The more up–to–date term “pressure vessel” has been added to the descriptions in Items 2 and 5. The term “pressure vessel” was suggested by the Department of Workforce Development because the term is more inclusive and can be used to describe hot water heaters, boilers or anything under pressure.

The variance provisions outlined in subrules 51.50(1) and 51.51(1) are applicable to the rules being amended.

These amendments are intended to implement Iowa Code chapter 135B.

These amendments will become effective January 16, 2002.

The following amendments are adopted.

ITEM 1. Amend paragraph 51.50(4)“b” as follows:

b. Elevators shall comply with division of labor services rules as promulgated under Iowa Code chapter 89A and 347 875 IAC Chapters 71 to 78 77.

ITEM 2. Amend subrule 51.50(6) as follows:

51.50(6) Mechanical requirements. Steam Pressure vessels, steam and hot water heating and domestic water heating systems shall comply with division of labor services rules promulgated under Iowa Code chapter 89 and 347 875 IAC Chapters 41 200 to 49 209.

ITEM 3. Amend subrule 51.50(9) as follows:

51.50(9) Waste processing services—storage and disposal. In lieu of the waste processing service requirements in the “Guidelines for Construction and Equipment of Hospital and Medical Facilities” in paragraph 51.50(2)“a,” space and facilities shall be provided for the sanitary storage and disposal of waste by incineration, mechanical destruction, compaction, containerization, removal or a combination of these techniques. These techniques must comply with the following environmental protection commission rules: 567 IAC rules 64.2(455B) and 64.3(455B); solid waste requirements of 567 IAC rules 101.1(455B,455D), 102.1(455B), 104.1(455B), and Chapters 106, 118 and 119; and air quality requirements of 567 IAC subrules 22.1(1) and 23.4(12) and paragraphs 23.1(2)“ttt” and 23.1(5)“b.”

ITEM 4. Amend paragraph 51.51(4)“b” as follows:

b. Elevators shall comply with division of labor services rules as promulgated under Iowa Code chapter 89A and 347 875—Chapters 71 to 77.

ITEM 5. Amend subrule 51.51(6) as follows:

51.51(6) Mechanical requirements. Steam Pressure vessels, steam and hot water heating and domestic water heating systems shall comply with division of labor services rules promulgated under Iowa Code chapter 89 and 347 875— Chapters 204 to 209.

ITEM 6. Amend subrule 51.51(9) as follows:

51.51(9) Waste processing services—storage and disposal. In lieu of the waste processing service requirements in the “Guidelines for Construction and Equipment of Hospital and Healthcare Facilities” in paragraph 51.51(2)“a,” space and facilities shall be provided for the sanitary storage and disposal of waste by incineration, mechanical destruction, compaction, containerization, removal or a combination of these techniques. These techniques must comply with the following environmental protection commission rules: rules 567— 64.2(455B) and 64.3(455B); solid waste requirements of rules 567—101.1(455B,455D), 102.1(455B), 104.1(455B), and 567—Chapters 106, 118 and 119; and air quality requirements of 567—subrules 22.1(1) and 23.4(12). and paragraphs 23.1(2)“ttt” and 23.1(5)“b.”

[Filed 11/16/01, effective 1/16/02]

[Published 12/12/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 12/12/01.

Pursuant to the authority of Iowa Code section 514D.3, the Insurance Division hereby amends Chapter 37, “Medicare Supplement Insurance Minimum Standards,” Iowa Administrative Code.

The purpose of these amendments is to conform the Iowa rules to recent changes in the federal Social Security Act as amended by the Medicare, Medicaid, and SCHIP Improvement and Protection Act of 2000. The federal amendments became effective in December 2000.

Notice of Intended Action was published in the IowaAdministrative Bulletin on October 17, 2001, as ARC 1040B. A public hearing was held on November 7, 2001. The Division received one letter suggesting several technical corrections.

These amendments are identical to those published under Notice.

These amendments are intended to implement Iowa Code chapter 514D.

These amendments will become effective January 16, 2002.

EDITOR’S NOTE: Pursuant to recommendation of the Administrative Rules Review Committee published in the Iowa Administrative Bulletin, September 10, 1986, the text of these amendments [37.7, 37.24] is being omitted. These amendments are identical to those published under Notice as ARC 1040B, IAB 10/17/01.

[Filed 11/21/01, effective 1/16/02]
[Published 12/12/01]

[For replacement pages for IAC, see IAC Supplement 12/12/01.]

Pursuant to the authority of Iowa Code section 514J.14, the Insurance Division hereby amends Chapter 76, “External Review,” Iowa Administrative Code.

The amendments incorporate into Chapter 76 changes in the external review procedure in Iowa Code chapter 514J as amended by 2001 Iowa Acts, Senate File 500. The amendments also clarify the scope of the rules and clarify procedures.

Notice of Intended Action was published in the Iowa Administrative Bulletin on October 17, 2001, as ARC 1043B. A public hearing was held on November 7, 2001. One comment was received, and as a result the following changes from the Notice have been made: An additional reference to organized delivery systems was added to rule 76.1(514J), and a new paragraph was added to subrule 76.8(2) to clarify filing requirements.

These amendments will become effective January 16, 2002.

These amendments are intended to implement Iowa Code chapter 514J as amended by 2001 Iowa Acts, Senate File 500.

The following amendments are adopted.

ITEM 1. Amend rule 191—76.1(78GA,SF276) as follows:

191—76.1(78GA,SF276 514J) Purpose. This chapter is intended to implement 1999 Iowa Acts, Senate File 276, Iowa Code chapter 514J to provide a uniform process for enrollees of carriers and organized delivery systems providing health insurance coverage to request an external review of a coverage decision based upon medical necessity. Carriers defined in 1999 Iowa Acts, Senate File 276, section 8(1), Iowa Code section 514J.2(1) and organized delivery systems as defined in Iowa Code section 514J.2(6) are subject to these rules.

ITEM 2. Amend rule 191—76.2(78GA,SF276) as follows:

191—76.2(78GA,SF276 514J) Applicable law. The rules contained in this chapter and 1999 Iowa Acts, Senate File 276, shall apply to any sickness or accident plan and any plan of health insurance policies, health care benefits or health care services delivered or issued for delivery in this state by an insurance company, a health maintenance organization, or a nonprofit health service corporation, and any plan established pursuant to Iowa Code chapter 509A plans delivered or issued for delivery in this state.

ITEM 3. Amend rule 191—76.3(78GA,SF276) as follows:

191—76.3(78GA,SF276 514J) Notice of coverage decision and content. The notice required under 1999 Iowa Acts, Senate File 276, Iowa Code chapter 514J shall contain the following information:

1. to 4. No change.

ITEM 4. Amend rule 191—76.4(78GA,SF276) as follows:

76.4(1) The enrollee shall send a copy of the carrier’s or organized delivery system’s written notice containing the coverage decision with the enrollee’s request for an external review to the insurance commissioner within 60 days of the receipt of the coverage decision. The notice shall be sent to the commissioner at the Insurance Division, 330 Maple Street, Des Moines, Iowa 50319.

76.4(2) No change.

ITEM 5. Rescind rule 191—76.5(78GA,SF276) and adopt in lieu thereof the following new rule:

76.5(1) The commissioner shall fax the certification decision to the carrier or organized delivery system and the enrollee or the enrollee’s treating health care provider acting on behalf of the enrollee within the two–day period specified in Iowa Code section 514J.5(1).

76.5(2) The commissioner has two business days to rule on a carrier’s or organized delivery system’s contest of the commissioner’s certification decision. The commissioner shall provide a written notice of the determination by fax within the two–day period to the carrier or organized delivery system and the enrollee or the enrollee’s treating health care provider acting on behalf of the enrollee.

ITEM 6. Amend rule 191—76.6(78GA,SF276) as follows:

76.6(1) The enrollee’s treating health care provider shall directly contact the carrier or organized delivery system for an expedited review if the enrollee’s treating health care provider states that delay would pose an imminent or serious threat to the enrollee.

76.6(2) The enrollee’s treating health care provider and the carrier or organized delivery system shall select within 72 hours an independent review entity to conduct the external review within 72 hours. In the event that the enrollee’s treating health care provider and the carrier or organized delivery system cannot reach an agreement upon the selection of an independent review entity, the enrollee’s treating health care provider shall notify the commissioner who shall select an independent review entity.

76.6(3) The carrier or organized delivery system and the enrollee’s treating health care provider shall provide any additional medical information to the review entity.

76.6(4) No change.

76.6(5) In the event the carrier or organized delivery system does not find that a delay would pose an imminent or serious threat to the enrollee, the enrollee’s treating health care provider may ask the commissioner to immediately review the request for certification as an expedited review.

76.6(6) No change.

ITEM 7. Amend rule 191—76.7(78GA,SF276) as follows:

191—76.7(78GA,SF276 514J) Decision notification. The independent review entity shall immediately notify the carrier or organized delivery system, enrollee or enrollee’s treating health care provider, and insurance division of the external appeal decision. The initial notification shall be delivered by telephone or fax transmission and a hard copy of the notice may be delivered by regular mail.

ITEM 8. Amend rule 191—76.8(78GA,SF276) as follows:

76.8(1) Each carrier or organized delivery system shall provide to the commissioner the name or title, telephone and fax numbers and E–mail address of an individual who shall be the carrier’s or organized delivery system’s contact person for external review procedures. Any changes in personnel or communication numbers shall be immediately sent to the commissioner.

76.8(2) Each carrier or organized delivery system shall provide to the commissioner a detailed description of the process the carrier or organized delivery system has in place to ensure compliance with the requirements found in this chapter and in Iowa Code chapter 514J. The description shall include:

ITEM 9. Amend rule 191—76.9(78GA,SF276) as follows:

76.9(1) No change.

76.9(2) The independent review entity shall develop written policies and procedures governing all aspects of the external review process including, at a minimum, the following:

a. Procedures to ensure that external reviews are conducted within the time frames specified in 1999 Iowa Acts, Senate File 276, this chapter and Iowa Code chapter 514J and that any required notices are provided in a timely manner.

b. No change.

c. Procedures to ensure that the enrollee, or the enrollee’s treating health care provider acting on behalf of the enrollee, is notified in writing of the enrollee’s right to object to the independent review entity selected by the carrier or organized delivery system or the person selected as the reviewer by the independent review entity by notifying the commissioner at the Insurance Division, 330 Maple Street, Des Moines, Iowa 50319, within ten days of the mailing of the notice by the independent review entity.

c d. Procedures to ensure the confidentiality of medical and health treatment records and review materials.

d e. Procedures to ensure adherence to the requirements of 1999 Iowa Acts, Senate File 276, this chapter and Iowa Code chapter 514J by any contractor, subcontractor, subvendor, agent or employee affiliated with the certified independent review entity.

76.9(3) No change.

76.9(4) The independent review entity shall establish a toll–free telephone service to receive information relating to external reviews pursuant to 1999 Iowa Acts, Senate File 276 this chapter and Iowa Code chapter 514J. The system shall develop include a procedure to ensure the capability of accepting, recording, or providing instruction to incoming telephone calls during other than normal business hours. The independent review entity shall also establish a facsimile and electronic mail service.

76.9(5) No change.

76.9(6) The independent review entity shall provide the commissioner such data, information, and reports as the commissioner determines necessary to evaluate the external review process established under 1999 Iowa Acts, Senate File 276 Iowa Code chapter 514J.

76.9(7) No change.

ITEM 10. Adopt the following new implementation sentence at the end of 191—Chapter 76:

These rules are intended to implement Iowa Code chapter 514J as amended by 2001 Iowa Acts, Senate File 500.

[Filed 11/21/01, effective 1/16/02]

[Published 12/12/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 12/12/01.

Pursuant to the authority of Iowa Code sections 88.5, 88B.3, 89A.3, 91.6, and 91D.1, the Labor Commissioner adopts amendments to Chapter 1, “Description of Organization and Procedures Before the Division,” Chapter 10, “General Industry Safety and Health Rules,” Chapter 26, “Construction Safety and Health Rules,” Chapter 71, “Administration,” Chapter 155, “Asbestos Removal and Encapsulation,” and Chapter 215, “Minimum Wage Scope and Coverage,” Iowa Administrative Code.

These amendments make technical and editorial changes; notify the public that publications adopted by reference relating to elevators, escalators and similar equipment are available for review in the office of the Division of Labor Services; and make the rules more consistent with current forms, law, and federal regulations. No waiver or variance provision is included in these rules because Iowa Code chapter 88 and 875 IAC 1.101(17A,91) to 1.109(17A,91) contain variance provisions.

The primary reasons for adoption of these amendments are to implement legislative intent and to protect the health, safety, and economic security of workers in Iowa.

Notice of Intended Action was published in the Iowa Administrative Bulletin on June 13, 2001, as ARC 0741B. In compliance with Iowa Code section 88.5(1)“b,” a public hearing was scheduled for July 6, 2001. No comments were received. These amendments are identical to those published under Notice of Intended Action.

These amendments are intended to implement Iowa Code chapters 88, 88B, 89A, 91, and 91D.

These amendments will become effective January 16, 2002.

EDITOR’S NOTE: Pursuant to recommendation of the Administrative Rules Review Committee published in the Iowa Administrative Bulletin, September 10, 1986, the text of these amendments [amendments to Chs 1, 10, 26, 71, 155, 215] is being omitted. These amendments are identical to those published under Notice as ARC 0741B, IAB 6/13/01.

[Filed 11/20/01, effective 1/16/02]
[Published 12/12/01]

[For replacement pages for IAC, see IAC Supplement 12/12/01.]

Pursuant to the authority of Iowa Code sections 88.5 and 17A.3(1), the Labor Commissioner adopts an amendment to Chapter 26, “Construction Safety and Health Rules,” Iowa Administrative Code.

This rule making adopts by reference amendments to the federal standards for steel erection. No waiver or variance provision is included in these rules because Iowa Code chapter 88 contains a variance provision.

Adoption of this amendment is required by 29 Code of Federal Regulations 1953.23(a)(2) and Iowa Code section 88.5(1)“a.” These rules are intended to implement legislative intent and protect the safety and health of workers.

Notice of Intended Action was published in the IowaAdministrative Bulletin on October 17, 2001, as ARC 1003B. A public hearing was scheduled for November 7, 2001. No comments were received. This amendment is identical to that published under Notice of Intended Action.

This amendment is intended to implement Iowa Code section 88.5.

This amendment will become effective January 16, 2002.

The following amendment is adopted.

Amend rule 875—26.1(88) by inserting at the end thereof:

66 Fed. Reg. 5265 (January 18, 2001)

66 Fed. Reg. 37137 (July 17, 2001)

[Filed 11/21/01, effective 1/16/02]

[Published 12/12/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 12/12/01.

Pursuant to the authority of Iowa Code section 139A.3, the Department of Public Health hereby amends Chapter 1, “Notification and Surveillance of Reportable Diseases,” Iowa Administrative Code.

The rules in Chapter 1 describe diseases and conditions that are reportable. These amendments clarify the defi–nition of “communicable diseases,” increase the surveil–lance and reporting of potential biological–, chemical– and radiological–terrorism events and initiate reporting of carbon monoxide poisoning.

Notice of Intended Action was published in the Iowa Administrative Bulletin on October 3, 2001, as ARC 0998B. A public hearing was held on October 31, 2001, in the ICN Room, Lucas State Office Building and three additional ICN sites across the state.

One written comment was received from the Iowa Medical Society which stated that the reporting language was too vague. As a result, a change from the Notice of Intended Action was made. The words “when the provider reasonably believes or suspects that the agent or toxin” were added to the new listings in paragraphs 1.3(1)“a” and “b.”

Also, new paragraph 1.3(1)“j” has been added based on staff review.

The Board of Health adopted these amendments November 14, 2001.

These amendments will become effective January 16, 2002.

These amendments are intended to implement Iowa Code sections 135.100 to 135.103, 139A.3, 139A.21, 139A.31, 139A.37, 141A.1, 141A.2 and 141A.5.

The following amendments are adopted.

ITEM 1. Amend 641—Chapter 1, title, as follows:

NOTIFICATION AND SURVEILLANCE OF REPORTABLE COMMUNICABLE AND INFECTIOUS DISEASES, POISONINGS AND CONDITIONS

ITEM 2. Amend rule 641—1.1(139A) by adopting the following new definition in alphabetical order:

“Communicable disease” means any disease spread from person to person or animal to person.

ITEM 3. Amend subrule 1.3(1) as follows:

1.3(1) List of reportable diseases or conditions.

a. Specific infectious communicable diseases.

(1) No change.

(2) Rare diseases:

Anthrax

*Botulism

Brucellosis

*Cholera

Cyclospora

*Diphtheria

Hansen’s disease (Leprosy)

Hantavirus syndromes

~Listeria monocytogenes invasive disease

Malaria

Mumps

*Plague

*Poliomyelitis

Psittacosis

Rocky Mountain spotted fever

Rubella (including congenital)

Tetanus

Toxic shock syndrome

Trichinosis

*Yellow fever

~*Vancomycin–resistant Staphylococcus aureus

*Outbreaks of any kind, unusual syndromes, or uncommon diseases

b. Specific noninfectious noncommunicable diseases.

Acute or chronic respiratory conditions due to fumes or vapors or dusts

Asbestosis

Birth defect or genetic disease***

Cancer***

Coal workers pneumoconiosis

Heavy metal poisoning

Hepatitis, toxic

Hypersensitivity pneumonitis (including farmers lung and toxic organic dust syndrome)

Methemoglobinemia

Pesticide poisoning (including pesticide–related contact dermatitis)

Silicosis

Silo fillers disease

c. to h. No change.

i. Noninfectious Noncommunicable respiratory illnesses. Any biopsy of lung tissue indicating prolonged exposure or overexposure to asbestos, silica, silicates, aluminum, graphite, bauxite, beryllium, cotton dust or other textile material, or coal dust.

ITEM 4. Amend subrule 1.5(1) as follows:

1.5(1) Cases of reportable diseases, poisonings and conditions, other than sexually transmitted disease/infection, shall be submitted in a format specified by the department.

ITEM 5. Amend subrule 1.9(1) as follows:

1.9(1) A person with an infectious a communicable disease requiring isolation or quarantine, as demonstrated by the diagnosis of a licensed health care professional or positive laboratory results, or quarantine shall be confined to an appropriate facility unless the person is attended by a licensed physician and complies with the written orders of the local health department.

ITEM 6. Amend subrule 1.9(2) as follows:

1.9(2) A physician who attends a person with a suspected or active infectious communicable disease requiring isola–tion or quarantine of a type described above, or a clinic giving outpatient treatment to such a person, shall report to the local health department at such times that the local health department requires. The report shall state whether the person is still under treatment, the address of the person, the stage of the disease process, clinical status, and treatment of the disease and the dates and results of laboratory tests or any other

___________

*Diseases which are noted with an asterisk should be reported IMMEDIATELY by telephone 1–800–362–2736.

**Numbers of staphylococcal isolates should be reported to the Department of Public Health on a quarterly basis.

~Isolates of organisms from diseases so noted should be sent to the University of Iowa Hygienic Laboratory.

†Sexually transmitted disease.

***NOTE: For these particular diseases, physicians and other health practitioners should not send a report to the department. The State Health Registry of Iowa has been delegated the responsibility for collecting this data through review of records from hospitals, radiation treatment centers, outpatient surgical facilities, oncology clinics, pathology laboratories, and physician offices. Prior to collecting the data from an office or facility, the State Health Registry of Iowa shall work with the office or facility to develop a proc–ess for abstracting records which is agreeable to the office or facility.

information required by the local health department. The physician who attends the person, or the person in charge of a hospital or clinic giving outpatient care to such a person, shall report promptly to the local health department when the person ceases to receive treatment and the reason for the cessation of treatment.

a. and b. No change.

ITEM 7. Amend subrule 1.9(3) as follows:

1.9(3) A person with a suspected or active disease that is infectious communicable shall be excluded from attendance at the workplace or school until the person receives the approval of the local health department to attend school or to engage in an occupation or employment. Such person may also be excluded from such premises or facilities as the local health department determines cannot be maintained in a manner adequate to protect others against the spread of the disease.

ITEM 8. Amend subrule 1.9(4), paragraph “d,” as follows:

d. An order for the removal to, detention in, or both removal to and detention in a hospital or other facility of a person who has an active disease that is infectious communicable or who presents a substantial likelihood of having an active disease that is infectious communicable, based upon epidemiologic evidence, clinical evidence, or laboratory test results; and when the local health department finds, based on recognized infection control principles, that, because of inadequate separation from others, there is a substantial likelihood such person may transmit the disease to others; and

ITEM 9. Amend subrule 1.9(5), paragraph “a,” as follows:

a. Within 72 hours after a person’s being confined in or transferred to an appropriate facility, a hearing shall be held to determine whether probable cause exists to believe the detained person is at risk of spreading an infectious a communicable disease. The hearing may be waived by the respondent. The hearing may be continued upon the request of either party and a showing of good cause, or by the court on its own motion in the due administration of justice, if the respondent is not substantially prejudiced. At the probable cause hearing, the detained person shall have the following rights:

(1) to (7) No change.

ITEM 10. Amend subrule 1.9(5), paragraph “c,” as follows:

c. At the conclusion of the hearing, the court shall enter an order which does both of the following:

(1) Verifies the respondent’s identity.

(2) Determines whether probable cause exists to believe that the respondent is at risk of transmitting an infectious a communicable disease.

ITEM 11. Amend subrule 1.9(5), paragraph “d,” as follows:

d. If the court determines that probable cause does exist, the court shall direct that the respondent be transferred to an appropriate facility for an evaluation as to whether the respondent is at risk of transmitting an infectious a communicable disease. The evaluation shall be conducted by a person deemed to be professionally qualified to conduct such an examination.

ITEM 12. Amend subrule 1.9(7) as follows:

1.9(7) Notwithstanding any inconsistent provision of this rule:

a. A person who is detained solely pursuant to paragraph 1.9(4)“d” shall not continue to be detained beyond the minimum period of time required, with the exercise of all due diligence, to make a medical determination of whether a person who is suspected of having a disease has an active disease or whether a person who has an active disease which is infectious communicable. Further detention of such person shall be authorized only upon the issuance of a court order pursuant to the above procedures.

b. A person who is detained pursuant to these rules shall not continue to be detained after the person person’s disease ceases to be infectious communicable or after the local health department ascertains that changed circumstances exist that permit the person to be adequately separated from others so as to prevent transmission of disease after the person’s release from detention.

c. A person who is detained pursuant to these rules shall not continue to be detained after the person person’s disease is no longer infectious communicable and the person has agreed to comply with prescribed medical care.

ITEM 13. Amend subrule 1.9(10) as follows:

1.9(10) For the purposes of these rules, a person has an active disease when (1) a laboratory test is positive for the disease and the person has not completed an appropriate prescribed course of medication for the disease, or (2) physical examination by a licensed health care provider has resulted in a diagnosis of an active disease. A person who has an active disease shall be considered infectious capable of transmitting this disease until the person is determined by a licensed health care professional to be determines that the disease is no longer infectious communicable.

[Filed 11/19/01, effective 1/16/02]

[Published 12/12/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 12/12/01.

Pursuant to the authority of Iowa Code section 139A.3, the Department of Public Health hereby amends Chapter 1, “Notification and Surveillance of Reportable Diseases,” Iowa Administrative Code.

The rules in Chapter 1 describe diseases and conditions that are reportable. This amendment initiates reporting of Aeromonas, Yersinia, Norwalk–like virus, and enterohem–orrhagic Escherichia coli (non–O157:H7) by the University of Iowa Hygienic Laboratory for purposes of special study through the end of 2002 by adding such to the list of reportable diseases.

For the above–listed diseases, staff of the Center for Acute Epidemiology will contact the physician of the patient to obtain consent for contacting the patient. Telephone contact will be made with the patient to obtain information that will be used to study the impact of these diseases in Iowa. Information on these diseases will be made available to all interested parties through the Internet (the Department’s Web site) and through the Center for Acute Epidemiology’s Friday Update, an electronic mailing that is sent out weekly to over 600 health care personnel.

Notice of Intended Action was published in the Iowa Administrative Bulletin on October 3, 2001, as ARC 0997B. A public hearing was held October 31, 2001, in the ICN Room, Lucas State Office Building, and three additional ICN sites across the state. No public comment was received on this amendment. In addition, this amendment was simultaneously Adopted and Filed Emergency and published as ARC 0999B. This amendment is identical to that published under Notice of Intended Action and Adopted and Filed Emergency.

The Board of Health adopted this amendment on November 14, 2001.

This amendment shall become effective on January 16, 2002, at which time the Adopted and Filed Emergency amendment is hereby rescinded.

This amendment is intended to implement Iowa Code section 139A.3.

The following amendment is adopted.

Amend subrule 1.3(1) as follows:

1.3(1) List of reportable diseases or conditions.

a. Specific infectious diseases.

(1) Common diseases:

†Acquired immune deficiency syndrome (AIDS) and AIDS–defining conditions

Campylobacteriosis

†Chlamydia

Cryptosporidiosis

Encephalitis, arboviral

~Enterococcus invasive disease

~Escherichia coli O157:H7 related diseases (includes HUS)

Giardiasis

†Gonorrhea

~Group A Streptococcus invasive disease

~*Haemophilus influenza type B invasive disease

Hepatitis, types A, †B, C, D, and E

†Human immunodeficiency virus (HIV) infection, including HIV–exposed newborn infant (i.e., newborn infant whose mother is infected with HIV)

Legionellosis

Lyme disease

*Measles (rubeola)

~*Meningococcal invasive disease

~Methicillin–resistant Staphylococcus aureus invasive disease

Pertussis

Rabies (animal and *human)

~Salmonellosis (including Typhoid fever)

~Shigellosis

**Staphylococcus aureus invasive disease

~Streptococcus pneumoniae invasive disease

†Syphilis

Tuberculosis

(2) Rare diseases:

Anthrax

*Botulism

Brucellosis

*Cholera

Cyclospora

*Diphtheria

Hansen’s disease (Leprosy)

Hantavirus syndromes

~Listeria monocytogenes invasive disease

Malaria

Mumps

*Plague

*Poliomyelitis

Psittacosis

Rocky Mountain spotted fever

Rubella (including congenital)

Tetanus

Toxic shock syndrome

Trichinosis

*Yellow fever

~*Vancomycin–resistant Staphylococcus aureus

*Outbreaks of any kind, unusual syndromes, or uncommon diseases

b. to i. No change.

[Filed 11/19/01, effective 1/16/02]

[Published 12/12/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 12/12/01.

Pursuant to the authority of Iowa Code sections 135.40 to 135.42, the Department of Public Health hereby amends Chapter 5, “Maternal Deaths,” Iowa Administrative Code.

These amendments modify the definition of “a maternal death” to conform with existing national definition, change the reporting responsibilities of physicians in the event of a maternal death, ensure the availability of clinical records in order to allow a maternal death review to occur, and delineate the responsibilities of the Department of Public Health regarding ascertainment and review of maternal deaths in Iowa.

Notice of Intended Action was published in the October 3, 2001, Iowa Administrative Bulletin as ARC 0996B. One change from the Notice of Intended Action is in rule 641— 5.1(135). The phrase “within one year of delivery” was changed to “within one year after delivery.”

The State Board of Health adopted these amendments on November 14, 2001.

These amendments will become effective on January 16, 2002.

These amendments are intended to implement Iowa Code section 135.40.

The following amendments are adopted.

__________

*Diseases that are noted with an asterisk should be reported IMMEDIATELY by telephone 1–800–362–2736.

**Numbers of staphylococcal isolates should be reported to the Department of Public Health on a quarterly basis.

~Isolates of organisms from diseases so noted should be sent to the University of Iowa Hygienic Laboratory.

†Sexually transmitted disease.

ITEM 1. Amend rule 641—5.1(135) as follows:

641—5.1(135) Reporting of maternal deaths. All maternal deaths shall be reported to the maternal and child health bureau, Iowa department of public health, within 48 hours by the attending physician. A maternal death is any death occurring while a woman is pregnant or of a woman within six months of one year after delivery. This includes but is not limited to deaths resulting from abortions, ectopic pregnancies and all deaths during pregnancy, childbirth, puerperium or deaths from complications of childbirth. In the event of a maternal death, the certifying physician shall indicate that circumstance on the certificate of death.

ITEM 2. Amend 641—Chapter 5 by adopting the following new rules:

641—5.2(135) Ascertainment of maternal deaths. The department of public health annually shall systematically ascertain maternal deaths using birth and death vital records.

641—5.3(135) Reviewing of maternal deaths. Hospitals, physicians, and other licensed health care professionals shall provide to the department of public health clinical records pertinent to the review of individual maternal deaths. The release of these materials is a confidential and privileged communication, and no liability shall be attached to the release. Neither the released information nor reports generated from that information shall be allowed in any legal proceedings, pursuant to Iowa Code section 135.42. The department of public health shall ensure a timely, confidential review of all maternal deaths by experts in obstetric medicine and maternal mortality for the purpose of reducing morbidity and mortality. At least every three years, the department shall issue occasional reports on the causes and contributing factors of maternal deaths and recommendations of possible preventive strategies based on those reviews.

ITEM 3. Amend 641—Chapter 5, implementation clause, as follows:

This rule is These rules are intended to implement Iowa Code section 135.40.

[Filed 11/19/01, effective 1/16/02]

[Published 12/12/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 12/12/01.

Pursuant to the authority of Iowa Code section 691.6, the Department of Public Health amends Chapter 126, “State Medical Examiner,” Iowa Administrative Code.

These amendments rescind the first two rules in Chapter 126. The contents of those rules are now found in new Chapter 127. The amendments to subrule 126.3(3) restrict the availability of the State Medical Examiner to act as a county medical examiner.

Notice of Intended Action was published in the Iowa Administrative Bulletin on October 3, 2001, as ARC 0985B. No public comment was received. These amendments are identical to those published under Notice of Intended Action.

The Board of Health adopted these amendments on November 14, 2001.

These amendments shall become effective January 16, 2002.

These amendments are intended to implement Iowa Code section 691.5.

The following amendments are adopted.

ITEM 1. Rescind and reserve rule 641—126.1(691).

ITEM 2. Rescind and reserve rule 641—126.2(691).

ITEM 3. Amend subrule 126.3(3) as follows:

126.3(3) State medical examiner acting as county medical examiner. When the state medical examiner acts in the capacity of county medical examiner, the fee for each individual deceased person for whom a county medical examiner report is prepared shall be $100, payable by the county in which the death occurred the state medical examiner shall receive from the county of appointment a fee of $100 per hour, with a one–hour minimum, for each report prepared plus the state medical examiner’s actual expenses. Counties may not depend on the state medical examiner for full–time coverage.

[Filed 11/19/01, effective 1/16/02]

[Published 12/12/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 12/12/01.

Pursuant to the authority of Iowa Code section 691.6, the Department of Public Health rescinds Chapter 127, “County Medical Examiners,” Iowa Administrative Code, and adopts a new chapter with the same title.

These rules (1) provide guidance as to the duties and responsibilities of county medical examiners and county medical examiner personnel; (2) suggest when an autopsy should be performed; and (3) provide reimbursement guidance.

Notice of Intended Action was published in the Iowa Administrative Bulletin on October 3, 2001, as ARC 0983B.

Comments were received, and changes from the Notice were made as follows:

Concern was expressed about the fetus weight of 500 grams indicated in numbered paragraph “6” of the definition of “death affecting the public interest.” The fetus weight indicated conflicted with the weight specified in Iowa Code section 144.29. As a result, the weight of fetus was changed to 350 grams, in order to be consistent with the Iowa Code and to meet national standards.

The Division of Criminal Investigation, Department of Public Safety, asked that snowmobiles be added to paragraph 127.3(2)“f.” Snowmobiles are now listed.

The Iowa Medical Society and a county medical examiner expressed concerns about subrule 127.7(2), qualifications of a county medical examiner investigator. As Noticed, the subrule would basically eliminate the possibility of utilizing anyone who lacks medical care provider experience or five years of experience as a county medical examiner investigator. As a result of these comments, paragraph 127.7(2)“d” was added. This new paragraph outlines the criterion which allows a county medical examiner to request a waiver of paragraphs 127.7(2)“a,” “b”, and “c” in the event a qualified and willing individual cannot be identified. Also as a result of these comments, a definition for “medical care provider” was added to rule 127.1(144,331,691).

The Board of Health adopted this amendment on November 14, 2001.

These rules shall become effective January 16, 2002.

These rules are intended to implement Iowa Code chapters 331 and 691.

The following amendment is adopted.

Rescind 641—Chapter 127 and adopt the following new chapter in lieu thereof:

CHAPTER 127
COUNTY MEDICAL EXAMINERS

“Autopsy” means the external and internal postmortem examination of a deceased person.

“Cause of death” means the disease or injury which sets in motion the chain of events which eventually result in the death of a person. The physician shall consider “but for” this injury or disease the person would still be living.

“County medical examiner” or “CME” means a medical or osteopathic physician or surgeon licensed in the state of Iowa and appointed by the board of supervisors to serve in this capacity.

“County medical examiner investigator” or “CME–I” means an individual appointed by a county medical examiner, with approval by the board of supervisors and the state medical examiner, to serve under the supervision of a county medical examiner to assist in death investigations.

“County of appointment” means the county which requests a medical examiner to conduct an investigation, perform or order an autopsy, or prepare a report(s) in a death investigation case. The request may be authorized by the county attorney or the county medical examiner. The county of appointment shall be the county in which the death occurred.

“Cremation” means the technical process, using heat and flame, that reduces human remains to bone fragments.

“Day” means calendar day.

“Death” means the condition as described in Iowa Code section 702.8.

“Death affecting the public interest” means any death of a human being in which the circumstances are sudden, unexpected, violent, suspicious, or unattended, including but not limited to those deaths listed at Iowa Code section 331.802(3) and described as follows:

1. Violent death. Violent death includes homicide, suicide, or accidental death resulting from physical, mechanical, thermal, chemical, electrical, or radiation injury. A medical examiner’s investigation and report are required irrespective of the period of survival following injury.

2. Death caused by criminal abortion, including self–induced.

3. Death related to disease thought to be virulent or contagious which may constitute a public hazard. Any such case investigated by a medical examiner shall be reported to the department and to the local health authority.

4. Death that has occurred unexpectedly or from an unexplained cause. This term includes the following situations:

• Death without prior medical conditions accounting for the death.

• Apparently instantaneous death without obvious cause.

• Death during or following an unexplained syncope or coma.

• Death during an unexplained, acute, or rapidly fatal illness.

5. Death of a person confined in a prison, jail, or correctional institution.

6. Death of a person when unattended by a physician during the period of 36 hours immediately preceding death.

• This term includes the following situations:

— Persons found dead without obvious or probable cause.

— Death when the person was unattended by a physician during a terminal illness.

— Fetal death unattended by a physician. A fetal death is a fetus born dead within its twentieth week of gestation or a fetus which weighs 350 grams or more (Iowa Code section 144.29).

• This term does not include a prediagnosed terminal or bedfast case in which a physician has been in attendance within 30 days preceding the death.

• This term does not include a terminally ill patient who was admitted to and received services from a hospice program as defined in Iowa Code section 135J.1, if a physician or registered nurse employed by the program was in attendance within 30 days preceding the death.

7. Death of a person if the body is not claimed by a relative or friend.

8. Death of a person if the identity of the deceased is unknown.

9. Death of a child under the age of two years if death results from an unknown cause or if the circumstances surrounding the death indicate that sudden infant death syndrome may be the cause of death.

“Department” means the Iowa department of public health.

“Deputy county medical examiner” or “DCME” means an individual appointed by a county medical examiner, with approval by the board of supervisors and the state medical examiner, to assist the county medical examiner in the performance of the county medical examiner’s duties.

“External examination” means a close inspection of the exterior of a deceased human body for the purpose of locating, describing, and delineating any and all injuries or other abnormalities. External examination of a body does not constitute an autopsy, even if toxicology samples are obtained.

“Fee” means an amount to be paid to a county medical examiner’s office as determined by the board of supervisors of the county of appointment for completion of an investigation, autopsy, or report(s). Fees for services provided by the state medical examiner’s office are established at 641— 126.3(691).

“Form ME–1” means the Preliminary Report of Investigation by Medical Examiner form.

“Form ME–2” means the Medical Examiner Embalming Certificate form.

“Form ME–3” means the Permit by Medical Examiner for Autopsy form.

“Form ME–4” means the Preliminary Report of Child/Infant Death Scene Investigation form.

“Form ME–5” means the Cremation Permit by Medical Examiner form.

“Form ME–6” means the Iowa State Medical Examiner’s Office Personal Effects form.

“Form ME–7” means the Medication List form.

“Form ME–8” means the Body Identification Record form.

“Manner of death” means the circumstances under which the cause of death occurred and may be specified as follows: natural, accident, suicide, homicide, undetermined, or pending.

“Medical care provider” means an individual licensed or certified in any medical profession, including but not limited to a physician, physician assistant, nurse, emergency medical care provider, certified nurse’s aide, pharmacist, physical therapist, and medical technologist.

“Medical examiner” means the state medical examiner, deputy state medical examiner, county medical examiner, or deputy county medical examiner.

127.2(1) Jurisdiction. Upon receiving notification of a death which affects the public interest, a medical examiner shall notify any appropriate law enforcement agency not otherwise notified and shall take charge of the body of the decedent. The body shall not be disturbed or removed from the position in which it was found without authorization from the medical examiner except for the purpose of preserving the body from loss or destruction or permitting the passage of traffic on a highway, railroad, or airport, or unless the failure to remove the body might endanger life, safety, or health.

127.2(2) Investigation. A county medical examiner shall conduct a preliminary investigation of the cause and manner of death and shall utilize the investigative protocol outlined in the most current edition of the County Medical Examiner’s Handbook, available from the state medical examiner’s office. A medical examiner may perform or authorize performance of any scientific study to assist in identifying the cause, circumstances, and manner of death. A medical examiner shall cooperate with other investigating officials and agencies involved and shall share reports, information, and conclusions with these officials and agencies.

127.2(3) Report—Form ME–1.

a. Preparation and filing. A county medical examiner shall prepare a written report of the examiner’s findings on the Preliminary Report of Investigation by Medical Examiner, Form ME–1. A county medical examiner shall file the original Form ME–1 with the state medical examiner’s office within 14 days of the date of death and shall file a copy of the Form ME–1 with the county attorney within 14 days of the date of the death and shall retain a copy for the medical examiner’s records.

b. Content. Form ME–1 shall be completed as fully as possible in light of all available information and may be signed by either a county medical examiner or a county medical examiner investigator acting under the supervision of a county medical examiner. If the cause or manner of death, identity of the decedent, or other information is unknown or pending at the time of filing, “unknown” or “pending” may be written in the appropriate area of the form. If additional information becomes available, this information shall be forwarded to the state medical examiner in written form at such time as it becomes available to be added as a supplement to the file.

127.2(4) Disposition of body. After an investigation, including an autopsy if one was performed, the body of the decedent shall be made available to the funeral home designated by a relative or friend of the decedent for burial or appropriate disposition. A medical examiner shall not use influence in favor of a particular funeral director or funeral home. If no one claims a body, it shall be disposed of as provided in Iowa Code chapter 142.

127.2(5) Coverage.

a. When an individual is required to report a death to a medical examiner and the county medical examiner cannot be located or is not available, the individual shall contact a county medical examiner from any adjacent Iowa county to perform those duties outlined in this chapter. The responding medical examiner shall have full authority to conduct any procedures necessary to the investigation of the cause and manner of death. If an adjacent county medical examiner is not available, the state medical examiner shall be contacted and may act in the capacity of a county medical examiner.

b. The responding county medical examiner shall be reimbursed by the county for which the service is provided for all fees and expenses at the rate which is customarily paid by the county for which the service is provided or at a rate agreed upon by the medical examiner and the board of supervisors of the county for which the service is provided.

127.3(1) Autopsy required. A county medical examiner shall perform an autopsy or order that an autopsy be performed in the following cases:

a. All cases of homicide or suspected homicide, irrespective of the period of survival following injury.

b. All cases in which the manner of death is undetermined.

c. All cases involving unidentified bodies.

d. All deaths of children under the age of two when there is not a clear cause of death, including suspected cases of sudden infant death syndrome. A summary of the findings of the autopsy shall be transmitted by the physician who performed the autopsy to the county medical examiner within two days of completion of the report. Autopsies performed on children under the age of two when the circumstances surrounding the death indicate that sudden infant death syndrome may be the cause of death or the cause of death is not clearly explained by known medical history shall conform to Form ME–4.

127.3(2) Autopsy recommended. A county medical examiner should perform an autopsy or order that an autopsy be performed in the following cases:

a. Deaths of adolescents less than 18 years of age when there is not a natural cause of death.

b. All cases which involve a motor vehicle crash, unless it is a single motor vehicle accident with no potential for litigation and there is an obvious cause of death or the injuries have been clearly documented by hospitalization.

c. Drowning deaths.

d. Deaths in a prison, jail, correctional institution, or mental health institute, or under police custody, where there is not a natural disease process which accounts for the death.

e. Deaths from suicide.

f. All pedestrian, bicyclist, motorcycle, snowmobile, three–wheeler or all–terrain vehicle fatalities.

g. Deaths due to failure of a consumer product.

h. Deaths due to a possible public health hazard.

i. Deaths due to drug or alcohol abuse or overdose.

j. Deaths due to poisoning.

k. Deaths of airplane pilots who die as a result of an airplane crash. The National Transportation Safety Board and the Federal Aviation Administration should be contacted prior to the autopsy to request specimen collection kit(s).

l. Electrical– and lightning–related deaths.

m. Deaths from burns or smoke or soot inhalation.

n. Deaths due to a natural disaster, including tornadoes and floods.

o. All farm– and work–related deaths unless there is an obvious natural cause of death.

p. All deaths related to exposure, such as hypothermia and hyperthermia.

q. All sport–related deaths, including deaths from auto racing and deaths resulting from injuries sustained in football, basketball, soccer, or other games or sports.

127.3(3) Other deaths. For those deaths not listed in subrule 127.3(1) or 127.3(2), a county medical examiner shall determine whether the public interest requires an autopsy and may perform an autopsy or order that an autopsy be performed. A county medical examiner may consult with the state medical examiner to assist in determining the need for an autopsy.

127.3(4) Performance of autopsy.

a. Who may authorize. Autopsies may be authorized by the state medical examiner, the county medical examiner for the county in which the death occurred or the county where any injury contributing to or causing the death was sustained, or the county attorney who would have jurisdiction in any criminal proceeding related to the death.

b. Who may perform. An autopsy shall be performed by a pathologist trained or with experience in forensic pathology, licensed to practice medicine and surgery or osteopathic medicine and surgery in the state of Iowa and board–certified by the American Board of Pathology, or under the direct supervision of a physician with these qualifications. If an autopsy is performed by a physician who does not satisfy these criteria and who is not performing under the direct supervision of a physician who satisfies these criteria, the physician shall submit a supplemental report with the Permit by Medical Examiner for Autopsy, Form ME–3, which details the specific training, education, and experience which qualify the physician to perform an autopsy.

c. Permit required—Form ME–3. A medical examiner shall complete the Permit by Medical Examiner for Autopsy, Form ME–3. All reasonable efforts shall be made to complete the Form ME–3 prior to the performance of an autopsy and to submit the form with the body of the decedent or to submit the form via facsimile to the state medical examiner.

127.3(5) Autopsy report. A complete record of the findings of the autopsy shall be submitted to the state medical examiner’s office, the county attorney of the county where the death occurred and the county attorney of the county where the injury contributing to or causing the death was sustained within 90 days following the date of death, unless unusual circumstances requiring further investigation or testing exist. The report filed shall include all diagrams, transcriptions of the autopsy observations and opinions, and toxicology reports.

127.3(6) Out–of–state autopsy. The body of a decedent may be sent out of state for an autopsy or postmortem examination only if the county medical examiner certifies in writing that the out–of–state autopsy or examination is necessary for any of the following reasons:

a. A forensic pathologist practicing in the state of Iowa is unavailable;

b. Requiring an in–state autopsy would cause financial hardship; or

c. Requiring an in–state autopsy would delay the funeral or burial more than three days.

127.4(1) Payment of fee and expenses.

a. A medical examiner shall receive from the county of appointment a fee for each preliminary investigation and report submitted in a case in which a death affects the public interest. A county medical examiner shall also receive from the county of appointment the examiner’s actual expenses.

b. A pathologist or other physician who performs an autopsy under medical examiner authorization shall be paid for the services by the county of appointment.

127.4(2) Reimbursement.

a. County of residence different from county ofappointment—Iowa resident. The county of the decedent’s residence shall reimburse the county of appointment for the fee and expenses paid by the county of appointment.

b. Death caused by criminal defendant. If the person’s death is caused by a criminal defendant who has been convicted and sentenced for murder, voluntary manslaughter, involuntary manslaughter, or homicide by vehicle, the county of the person’s residence may recover from the defendant the fee and expenses.

c. Out–of–state resident—law enforcement involvement. The fee and expenses of a county medical examiner who performs an investigation or autopsy of a person who dies after being brought into the state for emergency medical treatment by or at the direction of an out–of–state law enforcement officer or public authority shall be paid by the state. A claim for payment shall be filed with the department.

d. Out–of–state resident—no law enforcement involvement. The fee and expenses of a county medical examiner who performs an investigation or autopsy of an out–of–state resident shall be paid by the county of appointment.

e. Child under the age of two. If the death of a child under the age of two results from an unknown cause or if the circumstances surrounding the death indicate that sudden infant death syndrome may be the cause of death, the department shall reimburse the county of appointment up to $400 toward the expense of the autopsy. A county auditor may submit a copy of the bill and the autopsy report to Iowa SIDS Program, Department of Public Health, Lucas State Office Building, Des Moines, Iowa 50319. A request for reimbursement shall be submitted within one year after the date of death.

127.5(1) Completion. The funeral director to whom the body is released shall complete the personal data on the death certificate. The medical examiner shall complete the manner of death and cause of death sections of the death certificate within 24 hours after taking charge of the case. If an autopsy is performed by the state medical examiner, the death certificate shall be submitted to the state medical examiner’s office for completion. All information included on the certificate shall be typewritten.

127.5(2) Filing. The funeral director shall file the certificate with the county registrar in the county in which the death occurred. A death certificate shall be filed prior to the issuance of a burial transit permit and prior to disposal of the body.

127.5(3) Extension of time. If a medical examiner is unable to complete the manner of death and cause of death sections of the death certificate within the 24–hour time period, the funeral director shall file a death certificate form completed with all available information. Such certificate shall be authority for the issuance of a burial transit permit. Within 15 days, a supplemental report shall be filed with the local registrar which provides the information missing from the original certificate.

127.5(4) Additional standards. Additional rules relative to death certificates may be found at 641—Chapter 101.

127.6(1) Permit obtained prior to cremation—Form ME–5. A permit for cremation shall be obtained from a county medical examiner prior to cremation of a body of a decedent. For purposes of this requirement, a facsimile or electronic copy of the cremation permit has the same legal effect as the original. Cremation permits shall be issued on the Cremation Permit by Medical Examiner, Form ME–5.

127.6(2) Requirements for issuance of permit. A county medical examiner shall direct an inquiry into the cause and manner of death and shall determine whether the death is one which affects the public interest prior to issuing a cremation permit.

a. Death which affects the public interest. If the death occurred in a manner specified in Iowa Code section 331.802(3) or if reasonable suspicion that the death occurred in such a manner exists, a medical examiner shall view the body, make a personal inquiry into the cause and manner of death, and complete or cause to be completed all necessary autopsy or postmortem examinations prior to issuing a cremation permit.

b. Death which does not affect the public interest. If, following an inquiry into the cause and manner of death, the county medical examiner determines that the death did not occur in a manner specified in Iowa Code section 331.802(3), a medical examiner is not required to view the body prior to issuing a cremation permit. A county medical examiner shall certify on the Cremation Permit by Medical Examiner, Form ME–5, that the medical examiner’s inquiry into the cause and manner of death did not disclose evidence that the death occurred in a manner specified in Iowa Code section 331.802(3).

127.6(3) Fee. A fee for the Cremation Permit by Medical Examiner, Form ME–5, shall be paid by the family, next of kin, guardian of the decedent, or other person authorized to act on behalf of the decedent.

127.7(1) Appointment. A county medical examiner may appoint one or more county medical examiner investigators upon approval by the board of supervisors and the state medical examiner.

127.7(2) Qualifications.

a. Prior to appointment, a CME–I shall possess a minimum of two years of experience as a licensed or certified nurse or medical care provider; and

b. Prior to or within three years of appointment, a CME–I shall satisfy the following criteria:

(1) Attend the St. Louis School of Medicine Medicolegal, Basic and Master’s Death Investigation Course or its state medical examiner–approved equivalent; and

(2) Obtain and maintain certification as a death investigator by the National Association of Medical Examiners.

c. A CME–I is not required to meet the requirements of paragraph “a” or “b” if the individual has functioned in the capacity of a CME–I for a period of five years as of January 1, 2002.

d. If a CME is unable to appoint a CME–I who possesses the qualifications required by paragraph “a,” “b,” or “c,” the CME may request a waiver. Waiver requests shall be submitted in writing to the state medical examiner and shall include the efforts undertaken by the CME to locate a CME–I who meets the above qualifications; the qualifications of the individual willing to serve in the capacity of CME–I; and the period of time for which the waiver is requested, not to exceed two years. The state medical examiner has sole discretion to waive the requirements of this rule and may withdraw or modify a waiver request upon a finding that the CME–I has failed to adequately perform the duties of the position or for other good cause.

127.7(3) Duties. A CME–I shall assist in death investigations. A CME–I acting under the supervision of a county medical examiner may sign the Form ME–1. A CME–I shall not sign a certificate of death or a Form ME–5.

127.7(4) Supervision. A CME–I shall serve under the supervision of a county medical examiner. A CME–I may provide services only when in the personal presence of a county medical examiner or under the direction of a county medical examiner who is available in person or under the direction of a county medical examiner when the county medical examiner or the state medical examiner’s office is available by telephonic communication. A CME–I shall at all times perform services in a manner which is consistent with the protocol outlined in the most current edition of the County Medical Examiner’s Handbook and any policies or protocols of the supervising county medical examiner.

127.7(5) Fees. Fees for the services provided by a CME–I shall be paid by the county of appointment.

127.8(1) Appointment. A county medical examiner may appoint one or more deputy county medical examiners upon approval by the board of supervisors and the state medical examiner.

127.8(2) Qualifications. A DCME shall be licensed in the state of Iowa as a medical or osteopathic physician or surgeon.

127.8(3) Duties. A DCME shall serve at the direction of the county medical examiner and may perform any duty of a county medical examiner which is delegated by the county medical examiner to the DCME.

127.8(4) Fees. Fees for the services provided by a DCME shall be paid by the county of appointment.

641—127.9(331,691) Failure to comply with rules. If a county medical examiner, deputy county medical examiner, county medical examiner investigator, pathologist, or other physician fails to comply with these rules, the state medical examiner may provide written notice of the failure to comply to that individual, the appropriate county medical examiner, and the appropriate county board of supervisors. Within 30 days of the date of the notice, the individual to whom the notice was provided shall submit a written response to the state medical examiner, outlining a proposed corrective action plan. If no response is received within the 30 days or if the proposed corrective action plan is unacceptable, the state medical examiner shall forward copies of the notice and all pertinent correspondence and information to the board of supervisors for the county which appointed the individual, notifying the board of the individual’s failure to comply with these rules.

641—127.10(331,691,22) Confidentiality. Records and reports of a medical examiner may be confidential records pursuant to Iowa Code sections 22.7(2), 22.7(5), and 22.7(41) and other provisions of Iowa law. Prior to releasing a medical examiner record or report to a member of the public, a county medical examiner may inform the appropriate law enforcement agency, the county attorney, and the state medical examiner to determine whether release is authorized under Iowa law.

641—127.11(331,691,670) Indemnification. A board of supervisors shall defend, hold harmless, and indemnify a county medical examiner and any properly appointed staff members to the extent provided in Iowa Code chapter 670.

These rules are intended to implement Iowa Code chapters 331 and 691.

[Filed 11/19/01, effective 1/16/02]

[Published 12/12/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 12/12/01.

Pursuant to the authority of Iowa Code section 17A.3, the Department of Public Health hereby amends Chapter 174, “Agency Procedure for Rule Making,” Iowa Administrative Code.

This amendment updates the Department’s mailing address for sending written comments concerning rules and updates the title and telephone number for the Director’s office.

Notice of Intended Action was published in the Iowa Administrative Bulletin on August 22, 2001, as ARC 0893B. No comments were received during the public comment period, and no changes were made from the Notice of Intended Action.

The State Board of Health adopted this amendment on November 14, 2001.

This amendment is intended to implement Iowa Code chapter 17A.

This amendment will become effective on January 16, 2002.

The following amendment is adopted.

Amend rule 641—174.5(17A) as follows:

174.5(1) Written comments. Strike In lieu of the words “(identify office and address) or” insert “Director’s Office, Iowa Department of Public Health, Lucas State Office Building, 321 E. 12th Street, Des Moines, Iowa 50319”.

174.5(5) Accessibility. In lieu of the words “(designate office and telephone number)” insert “Director’s Office, Iowa Department of Public Health, (515)281–7689”.

[Filed 11/19/01, effective 1/16/02]

[Published 12/12/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 12/12/01.

Pursuant to Iowa Code sections 17A.4, 474.5 and 476.2, the Utilities Board (Board) gives notice that on November 21, 2001, the Board issued an order in Docket No. RMU–01–4, In re: Service of Filings on Office of Consumer Advocate, “Order Adopting Rule Making.”

The amendment to 199 IAC 1.8(4)“c” clarifies the scope of documents to be served on Consumer Advocate by each party and eliminates the requirement that a separate copy of each filing must be served on the Board’s general counsel.

The proposed rule making was published in IAB Vol. XXIII, No. 24 (5/30/01) pp. 1841–42, as ARC 0679B. Mid– American Energy Company (MidAmerican) filed substantive comments supporting the amendment as noticed. Alliant Energy Corporation (Alliant) and the Consumer Advocate filed comments expressing their support for the proposed amendment. No oral presentation was scheduled or requested.

Consumer Advocate is charged by statute with severalduties, including the duty of representing the public inall proceedings before the Board. See Iowa Code section 475A.2(2). In order to fulfill that obligation, Consumer Advocate is entitled to service of all documents required by statute or rule to be served on parties in proceedings before the Board and of all notices, petitions, applications, complaints, answers, motions, and other pleadings filed pursuant to statute or rule with the Board. See Iowa Code section 475A.5. The Board’s rules, specifically 199 IAC 1.8(4)“c,” expand on the statutory requirement by requiring that three copies of all notices, motions, or pleadings filed with the Board must be served on Consumer Advocate, either by separate mailing or by separate envelope, if personally delivered.

Despite these provisions, Consumer Advocate informed the Board that a significant percentage of all filings with the Board were not served upon Consumer Advocate as required by statute and rule. Consumer Advocate noted that the existing rule does not explicitly require service of all documents; instead, the rule applies only to “notices, motions, or pleadings.” Second, the rule does not explicitly state that the obligation to serve Consumer Advocate is the obligation of the party, rather than the Board.

The adopted amendment revises paragraph 1.8(4)“c” to expand the scope of the rule to all documents or other materials filed with the Board. Further, the amended rule clearly states that it is the obligation of each party rather than the Board, to serve Consumer Advocate. The amendment also eliminates the requirement that a separate copy of each filing be served on the Board’s general counsel, as it has proven to be unnecessary.

In its comments, MidAmerican asked for clarification to the rule with regard to the required number of copies to be filed. The Board agrees with MidAmerican that the rule is intended to require that three copies of all documents formally filed with the Board must also be filed with Consumer Advocate and the proposed amendment was modified to clarify that requirement. MidAmerican also asked for clarification in defining the term “formally filed” as it is used in the rule. The Board agrees that a definition of “formal filings” would be helpful, and the amendment includes a brief definition of the term. MidAmerican also suggested that a conflict exists between the proposed amendment and other Board rules regarding the requirement of the number of copies to be filed with the Board. The Board agrees with MidAmerican in so far as the same number of copies required for Board purposes should be served upon Consumer Advocate, and the amendment adopts MidAmerican’s proposal to clarify this issue. Finally, MidAmerican requested that the Board consider a requirement that all materials be filed in an electronic format. The Board believes that a general electronic filing requirement is beyond the scope of this rule–making proceeding. MidAmerican’s proposal can be considered in another docket at an appropriate time.

This amendment will become effective on January 16, 2002.

This amendment is intended to implement Iowa Code sections 474.5, 475A.5, and 476.2.

The following amendment is adopted.

Amend paragraph 1.8(4)“c” as follows:

c. Parties entitled to service. All parties A party or other person filing a notice, motion, or pleading in any proceeding shall serve the notice, motion, or pleading on all other parties, including the general counsel and the consumer advocate, shall be served with all notices, motions, or pleadings filed or issued in the proceeding. Consumer advocate shall be served three copies, either by separate mailing addressed to the Unless a different requirement is specified in these rules, a party formally filing any such document or any other material with the board shall serve three copies of the document or material on the consumer advocate at the same time as the filing is made with the board and by the same delivery method used for filing with the board. “Formal filings” include, but are not limited to, all documents that are filed in a docketed proceeding, or that request initiation of a docketed proceeding. The address of the consumer advocate is Office of Consumer Advocate, 310 Maple Street, Des Moines, Iowa 50319–0063, or by separate envelope delivered to the office of the consumer advocate.

[Filed 11/21/01, effective 1/16/02]

[Published 12/12/01]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 12/12/01.