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[Dome]Interim Calendar and Briefing

June 26, 1996

Contents:
Calendar of Scheduled Meetings
Agenda Information Regarding Scheduled Meetings
BRIEFINGS - Information Regarding Recent Meetings

Calendar of Scheduled Meetings

Tuesday, July 9, 1996
Administrative Rules Review Committee
10:00 a.m., Room 22
Wednesday, July 10, 1996
Administrative Rules Review Committee
9:00 a.m., Room 22
Tuesday, August, 1996
Administrative Rules Review Committee
10:00 a.m., Room 22
Wednesday, August 14, 1996
Administrative Rules Review Committee
9:00 a.m., Room 22

Agenda Information Regarding Scheduled Meetings

Administrative Rules Review Committee

Co-chairperson: Senator Berl E. Priebe
Co-chairperson: Representative Janet Metcalf

Administrative Rules Review Committee

Co-chairperson: Senator Berl E. Priebe
Co-chairperson: Representative Janet Metcalf

BRIEFINGS - Information Regarding Recent Meetings

ADMINISTRATIVE RULES REVIW COMMITTEE

June 11-12, 1996

Agriculture and Land Stewardship - Meat inspection in grocery stores.
The committee held an initial review concerning meat inspections in grocery stores. Iowa has adopted the federal regulations by reference and conducts inspections for the United States Department of Agriculture (USDA). At issue is a "mom and pop" grocery known for its fine meats. The store sells a portion of its product to local restaurants. Under the federal regulations, a retail establishment may sell only 25 percent of its product wholesale. When that level is exceeded, the facility must obtain a wholesalers license, remodeling the facility as required by the new level of licensure. The store needs the additional income to stay in business, but cannot afford the required remodeling. The store plans to shut down if a compromise cannot be found. The committee has decided to hold a full review of this issue in August, and the department has agreed to delay any additional action until that time.
Environmental Protection Commission - Air pollution operating permits for small sources.
Any business releasing particulates into the air must obtain a permit from the division. To ease this regulatory burden on small businesses the division will now allow business which are small sources of emissions {less than 50 percent of the major source threshold level} to in effect issue their own permits. Qualifying applicants may simply register with the department and certify that the small operation meets the standards set out in this rule. Small sources can release no more than 50 tons per year of each regulated pollutant and no more than 12.5 tons per year of hazardous air pollutants. The committee took testimony from the Citizens' Aide/Ombudsman. This marked the first occasion where the newly created position of assistant ombudsman for environmental affairs was active in the rules review process. The ombudsman noted that the application process is still quite complicated and requires information that is not required by the rule itself. It was also noted that the permits could expire in five years, with no guarantee they could be renewed. Commission representatives responded by accepting several of the ombudsman's suggestions and agreeing to meet further with all stakeholders in this program to ensure that the application process is as clear and user friendly as possible.
Human Services Department - "Emergency" rules implementing Senate File 2442.
In this Act, the General Assembly experimented with a new type of authorization for "emergency" rules. Traditionally, the department obtains statutory authorization to file rules without notice or an opportunity for public participation, in order to speedily implement new legislation. Under this traditional process, the Rules Review Committee would receive the rule after it has gone into effect, which means the committee cannot delay the rule's effective date if the rule is found objectionable.
Under the new process, the rule cannot become effective until it has been reviewed by the committee. To ensure this review took place, while still providing an opportunity for speedy implementation of the rules, the committee held its initial review before the rules were published in the Bulletin. Normally rules are reviewed only after publication, but in this case that action would postpone the rules until July. In this case a delay was undesirable because the filing provided for increases in certain provider reimbursement rates. Further review, with a full opportunity for public comment, will take place at the July meeting.
Board of Medical Examiners - Supervision of physician assistants.
In April the Administrative Rules Review Committee voted to delay the effective date of these rules for seventy days, in order to encourage the Board of Medical Examiners to draft amendments clarifying that no action could be taken against a physician without appropriate due process. The rules established standards to measure whether a physician is competent to supervise the practice of a physician's assistant. Representatives of the physician's assistants association were particularly concerned that the rules did not set out a hearing process prior to the revocation of the supervisory privilege. Concern was also expressed that the rules set out eligibility criteria instead of establishing ineligibility standards as required by statute. At the June meeting it was clear that significant controversy still surrounds this filing, in spite of proposed amendments recently circulated among the various interested parties.
The committee has now imposed a session delay on this filing, with the specific intent that the various parties meet to fully discuss all of the points of contention in this filing and attempt to reach a compromise. If no compromise can be reached, this issue will ultimately be forwarded to the appropriate standing committees of the Legislature for further study and action as those committees deem appropriate. If the Legislature does not take action to amend or rescind this filing, it will go into effect upon the adjournment of the 1997 Session of the General Assembly.
Racing and Gaming Commission - Phenylbutazone levels in race horses.
The commission emergency filed an administrative rule stating in part "[T]he tolerance level for phenylbutazone shall not exceed two point two micrograms per milliliter of blood." Although the filing was not yet published, the committee agreed to informally review the rule, to allow the commission representatives an opportunity to gauge the reaction and concerns of the committee members. This rule attempts to correct an error in the statutory language which sets the "bute" standard at two point two micrograms per millimeter of blood. A millimeter is a standard of length, not volume; it cannot be used to set a standard for bute, which is a liquid. A legislative attempt to address this problem in statute was unsuccessful.
Commission representatives maintain this rule is necessary because the statute itself is legally unenforceable; the representatives contend that without the rule, Iowa has no standard for "bute" at all. Some committee members supported the rule, arguing that it did nothing more than adopt the manifest legislative intent of the statute. Other members contended that the plain language of a statute could not be changed by administrative rule and that only legislative action can correct this problem. No committee action was taken; further review is likely when the rules are published in the Bulletin.

LEGISLATIVE FISCAL COMMITTEE

June 13, 1996

The Legislative Fiscal Committee of the Legislative Council met on June 13, 1996. Highlights of the meeting were as follows:

Revenue Update.
Mr. Dennis Prouty, Director, Legislative Fiscal Bureau, discussed the ending General Fund balance prior to the cash reserve transfer for fiscal year 1997 which is estimated to be $147.6 million. He estimated that $60 million could be expected to be returned to the General Fund in fiscal year 1997 from cash reserve transfers and lower than anticipated tax refunds. He provided an overview of the Governor's item vetoes which totaled $25.3 million in general fund dollars.
Federal Update.
Mr. Jon Neiderbach, Legislative Fiscal Bureau, provided a comprehensive memorandum on the projected departmental impacts of federal funding changes for federal fiscal year 1996. He provided a listing of programs that will receive less federal funding and those that will receive increased federal funding and explained that while federal fiscal year 1996 shows a $25.6 million decrease compared to federal fiscal year 1995, $77.6 million is due to reduced flood-related funding.
Mr. Phil Smith and Ms. Nancy Payne of Iowa's State/Federal Office in Washington D.C., provided an update on Congressional activity and it's implications to the state. Mr. Smith explained that the three biggest issues to impact the state at the present time are welfare reform, Medicaid, and workforce development. Ms. Payne provided an update on the appropriations authorization bills for federal fiscal year 1997 and stated that of the 13 appropriations bills only the military construction, foreign operations, and agriculture bills have passed the House of Representatives.
ICN Update.
Ms. Mary Shipman, Legislative Fiscal Bureau, updated the committee on the financial status of the Iowa Communications Network and the progress made towards Part III implementation. She stated that as of April 30, 1996, the ICN had $125.3 million in assets, $115.1 million in total liabilities and a fund equity of $10.2 million. So, far the ICN has expended $15.7 million of a $18.54 million appropriation for fiscal year 1996. Mr. Harold M. Thompson, Chief Operating Officer for the Iowa Communications Network, expressed concern over the current ICN legislative budgeting process. He requested that the Committee change the ICN legislative budgeting process by formation of a new appropriations subcommittee, or by moving the ICN budget under the purview of the Education Appropriations subcommittee or the Transportation, Infrastructure, and Capitals Appropriation subcommittee.
Next Meeting.
The next meeting of the Legislative Fiscal Committee is tentatively scheduled for July 17, 1996.

CHILD ABUSE DETERMINATION

Supreme Court of Iowa
Hildreth v. Iowa Department of Human Services, No. 77/94-2034, (Iowa, June 19, 1996)

Background.
The Department of Human Services (DHS) performed an investigation and determined a noncustodial father was guilty of child abuse as a result of spanking his eight-year-old daughter with a wooden spoon in an incident which occurred in February 1993. The finding of child abuse was appealed before an administrative law judge and the district court which both upheld DHS's determination. A further appeal was entered in the Iowa Supreme Court, asserting that facts did not support a finding of child abuse under Iowa law and DHS administrative rules. The appeal also asserted the agency's action infringed upon the appellant's constitutional right to exercise his religious beliefs. The court did not rule on the constitutional question.
Law.
The Supreme Court reversed the agency determination and district court ruling. The decision was based on the statutory definition of child abuse and the DHS rule defining physical injury:
Agency Guideline.
The court stated that it could not accept the agency handbook's guideline for physical injury which concludes that any reddening of the skin lasting for 24 hours is a physical injury. Instead, the court stated, DHS should have applied the agency rule defining nonaccidental physical injury which provides that an injury would be the probable result of the caretaker's actions. In applying that definition, the court opinion stated the belief DHS should have concluded that the father could not have "reasonably foreseen that the rather limited striking of Amanda's buttocks would produce physical injury. The marginal nature of the alleged injury weighs heavily in that conclusion."
Dissent.
Three of the justices dissented from the majority ruling, indicating that the father's actions in disciplining the child were deliberate and the father should have expected an injury to occur from striking the child with a wooden spoon.
Recent Legislation.
Unrelated to this particular case, legislation was enacted in 1995 in which an assessment-based approach for investigating child abuse is being tested in five areas of the state. In the pilot project areas, the standard for a finding of child abuse is intended to identify only serious forms of abuse as child abuse. Legislation enacted in the 1996 Session provides for additional review of child abuse issues during this interim and a report on the pilot projects for consideration in the 1997 Session.

SERVICE COMMITTEE OF THE LEGISLATIVE COUNCIL

June 20, 1996; 3rd Meeting of the 1995-1996 Biennium

The Service Committee agreed to the following report which includes recommendations later approved by the Legislative Council:

Personnel Reports.
Personnel reports were received from the four nonpartisan central staff agencies which the Service Committee oversees. The agencies are the Legislative Service Bureau, Legislative Fiscal Bureau, Legislative Computer Support Bureau, and Office of Citizens' Aide/Ombudsman.
Staff Issues.
The Committee recommended approval of various staff promotions for the central staff agencies.
Agency Activity Updates.
The Committee received reports concerning the operation of the Computer User Policy Direction Committee (a committee composed of the management staff of all legislative agencies).
Environmental Ombudsman.
It was reported that the Department of Natural Resources' contract with the Citizens' Aide/Ombudsman would not be renewed. Pursuant to the Service Committee's recommendation, the Legislative Council directed that a letter be sent to the Department expressing concern about the Department's action.
Personnel Guidelines.
The Service Committee received a report from the Office of the Attorney General making recommendations for possible changes to the personnel guidelines of the central staff agencies. A subcommittee of four legislators, one from each caucus, was created to consider the possible changes.

ADMINISTRATION COMMITTEE OF THE LEGISLATIVE COUNCIL

June 20; 3rd Meeting of the 1995-1996 Biennium

The Administration Committee agreed to the following report which includes recommendations later approved by the Legislative Council. Reports were received concerning the following:

Computer Projects.
Updates were provided concerning the following projects:
Electronic Information Policy.
The Legislative Service Bureau is developing a draft policy for distribution and pricing of the electronic information, computer programs, and publications published in electronic format under authority of the Legislative Council. The proposed policy will be considered by the Computer User Policy Direction Committee prior to submission to the Legislative Council. The Council approved the Administration Committee's recommendation to continue current policies and practices until a new policy is adopted.

STUDIES COMMITTEE OF THE LEGISLATIVE COUNCIL

June 20, 1996; 3rd Meeting of the 1995-1996 Biennium

Interim Studies.
The Studies Committee made the recommendations for creation of legislative studies which were later approved by the Legislative Council. The Council acted to include a study of Hedge to Arrive Contracts to the list recommended by the Studies Committee. A copy of the approved studies indicating numbers of members and meeting days is attached.

LEGISLATIVE COUNCIL

June 20, 1996; 4th Meeting of the 1995-1996 Biennium

In addition to consideration of the reports and recommendations from its various committees which are noted in the briefings of those committees, the Legislative Council business included the following:

Legal Publication Prices.
The Council approved an increase of approximately one percent in the pricing for the following cited publications which are subject to sales tax:
International Relations Committee.
The Committee held meetings on October 10, 1995, and April 15, 1996. The Legislative Council approved recommendations developed on behalf of the committee by the committee's chairperson, Representative Churchill and Senator Szymoniak, which are summarized as follows:
Prefiling Rules.
The Legislative Council approved prefiling rules for preparation of bills on behalf of legislators, executive branch agencies, and the Office of the Governor. Key provisions of the approved rules include the following:
Legislative Funnel Dates.
The Legislative Service Bureau requested that the Legislative Council consider recommending changes in the individual and committee chair bill filing deadlines for the first year of a legislative biennium. Background information provided with the request noted that approximately 400 requests are submitted by legislators in the deadline week for individual requests which leaves just three weeks for the bills to be drafted, filed, and voted out of committee. The Legislative Council approved a general request for the Senate Rules and Administration Committee and House Administration and Rules Committee to review all filing dates in the legislative timetable known as the funnel.
Court Rules.
Proposed changes to the rules of evidence, civil procedure, and criminal procedure were submitted and the Legislative Council had no objections and took no action to delay the implementation date for the proposed rules.
East Parking Area.
Members commented on the deteriorating condition of the parking area adjacent to the Capitol where there are increasing numbers of potholes. The Council directed a letter be sent to the Department of General Services to express the Council's concern.
Fiscal Committee Reports.
The Legislative Council accepted the Legislative Fiscal Committee reports from the meetings on January 3, January 10, and June 13, 1996. The committee did not make recommendations to the Legislative Council.

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