CHAPTER 6
UNIFORM WAIVER RULES
481—6.1(10A,17A,ExecOrd11) Applicability. This chapter outlines a uniform process for the granting of waivers from rules adopted by the department. The intent of this chapter is to allow persons to seek exceptions to the application of rules issued by the department.
[ARC 5719C, IAB 6/16/21, effective 7/21/21]
481—6.2(10A,17A,ExecOrd11) Definitions.
“Attached units” means units attached to the department and includes the employment appeal board, child advocacy board, racing and gaming commission, and state public defender’s office.
“Department” means the department of inspections and appeals authorized by Iowa Code chapter 10A, which is comprised of the administrative division, administrative hearings division, audits division, health facilities division, inspections division and investigations division. Pursuant to Iowa Code section 7E.2(5), five attached units are included in the department.
“Director” means the director of the department of inspections and appeals or the director’s designee.
“Director/board” means the director, board, commission or state public defender depending on which one has the decision-making authority pursuant to Iowa Code chapter 10A or 7E.
“Person” means an individual, corporation, limited liability company, government or governmental subdivision or association, or any legal entity.
[ARC 5670C, IAB 6/2/21, effective 7/21/21; ARC 5719C, IAB 6/16/21, effective 7/21/21]
481—6.3(10A,17A,ExecOrd11) Interpretive rules. This chapter shall not apply to rules that merely define the meaning of a statute or other provision of law or precedent if the department does not possess delegated authority to bind the courts to any extent with its definition.
481—6.4(10A,17A,ExecOrd11) Compliance with statute. The department shall not grant a petition for waiver from a rule unless a statute or other provision of law has delegated authority to the department sufficient to justify that action and the waiver is consistent with the statute or other provision of law. No waiver may be granted from a requirement that is imposed by statute, unless the statute itself specifically authorizes that action. Any waiver must be consistent with statute.
[ARC 5719C, IAB 6/16/21, effective 7/21/21]
481—6.5(10A,17A,ExecOrd11) Criteria for waiver. At the sole discretion of the director/board, the director/board may issue an order, in response to a completed petition, granting a waiver from a rule adopted by the department, in whole or in part, as applied to the circumstances of a specified person or a specific and narrowly drawn class of persons if the director/board finds based on clear and convincing evidence that:
	1.	The application of the rule to the petitioner would pose an undue hardship on the person or class of persons for whom the waiver is requested;
	2.	The waiver from the requirements of a rule in the specific case would not prejudice the substantial legal rights of any person;
	3.	The provisions of a rule subject to a petition for a waiver are not specifically mandated by statute or another provision of law; and
	4.	Substantially equal protection of public health, safety, and welfare will be afforded by a means other than that prescribed in the particular rule for which the waiver is requested.
[ARC 5719C, IAB 6/16/21, effective 7/21/21]
481—6.6(10A,17A,ExecOrd11) Filing of petition. A petition for a waiver must be submitted in writing to the Department of Inspections and Appeals, Office of the Director, Lucas State Office Building, 321 East 12th Street, Des Moines, Iowa 50319. If the petition relates to a pending contested case, the petition shall also be filed in the contested case proceeding.
[ARC 5719C, IAB 6/16/21, effective 7/21/21]
481—6.7(10A,17A,ExecOrd11) Content of petition. A petition for waiver shall include the following information where applicable and known to the requester:
	1.	The name, address, and telephone number of the entity or person for whom a waiver is being requested and the case number of any related contested case.
	2.	A description and citation of the specific rule from which a waiver is requested.
	3.	The specific waiver requested, including the precise scope and operative period that the waiver will extend.
	4.	The relevant facts that the petitioner believes would justify a waiver. This statement shall include a signed statement from the petitioner attesting to the accuracy of the facts provided in the petition and a statement of reasons that the petitioner believes will justify a waiver.
	5.	A history of any prior contacts between the department and the petitioner relating to the regulated activity, license, appeal, hearing, audit, investigation, inspection, representation or other assigned function of the department that would be affected by the proposed waiver, including a description of each regulated activity, license, appeal, hearing, audit, investigation, inspection, representation or other assigned function of the department, any notices of violation, contested case hearings, or investigative reports relating to the regulated activity, license, appeal, hearing, audit, investigation, inspection, representation or other assigned function of the department within the last five years.
	6.	Any information known to the requester regarding the department’s treatment of similar cases.
	7.	The name, address, and telephone number of any public agency or political subdivision which also regulates the activity in question or which might be affected by the granting of a waiver.
	8.	The name, address, and telephone number of any person or entity that would be adversely affected by the granting of a petition.
	9.	The name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver.
	10.	Signed releases of information authorizing persons with knowledge regarding the request to furnish the department with information relevant to the waiver.
[ARC 5719C, IAB 6/16/21, effective 7/21/21]
481—6.8(10A,17A,ExecOrd11) Additional information. Prior to issuing an order granting or denying a waiver, the department may request additional information from the petitioner relative to the petition and surrounding circumstances. If the petition was not filed in a contested case, the department may, on its own motion or at the petitioner’s request, schedule a telephonic or in-person meeting between the petitioner and the department or department’s designee.
[ARC 5719C, IAB 6/16/21, effective 7/21/21]
481—6.9(10A,17A,ExecOrd11) Notice. The department shall acknowledge a petition upon receipt. The department shall ensure that notice of the pendency of the petition and a concise summary of its contents have been provided to all persons to whom notice is required by any provision of law within 30 days of the receipt of the petition. In addition, the department may give notice to other persons. To accomplish this notice provision, the department may require the petitioner to serve the notice on all persons to whom notice is required by any provision of law and provide a written statement to the department attesting that notice has been provided.
481—6.10(10A,17A,ExecOrd11) Hearing procedures. The provisions of Iowa Code sections 17A.10 to 17A.18A regarding contested case hearings shall apply to any petition for a waiver of rule filed within a contested case and shall otherwise apply to agency proceedings for a waiver only when the department so provides by rule or order or is required to do so by statute.
[ARC 5719C, IAB 6/16/21, effective 7/21/21]
481—6.11(10A,17A,ExecOrd11) Ruling. An order granting or denying a waiver shall be in writing and shall contain a reference to the particular person and rule or portion thereof to which the order pertains, a statement of the relevant facts and reasons upon which the action is based, and a description of the precise scope and operative period of the waiver if one is issued.
	6.11(1) Director/board discretion. The decision on whether the circumstances justify the granting of a waiver shall be made at the discretion of the director upon consideration of all relevant factors, except for the below-listed programs, for which the applicable board, commission or state public defender shall make the decision, upon consideration of all relevant factors:
	a. 	Employment appeal board, 486—Chapter 1.
	b. 	Child advocacy board, 489—Chapter 1.
	c. 	Racing and gaming commission, 491—Chapter 1.
	d. 	State public defender’s office, 493—Chapter 1.
	6.11(2) Burden of persuasion. The petitioner has the burden of persuasion when a petition is filed for a waiver from a department rule. The standard of proof is clear and convincing evidence.
	6.11(3) Special waiver rules not precluded. This chapter shall not preclude the department from granting waivers in other contexts or on the basis of other standards if a statute authorizes the department to do so and the department deems it appropriate to do so.
	6.11(4) Administrative deadlines. When the rule from which a waiver is sought establishes administrative deadlines, the director/board shall balance the special individual circumstances of the petitioner with the overall goal of uniform treatment of all persons similarly situated.
	6.11(5) Conditions. The director/board may condition the granting of the waiver on such reasonable conditions as appropriate to achieve the objectives of the particular rule in question through alternative means and in compliance with the following provisions:
	a. 	Each petition for a waiver shall be evaluated by the department based on the unique, individual circumstances set out in the petition;
	b. 	A waiver, if granted, shall be drafted by the department so as to provide the narrowest exception possible to the provisions of the rule;
	c. 	The department may place on a waiver a condition that the department finds desirable to protect the public health, safety, and welfare;
	d. 	A waiver shall not be permanent, unless the petitioner can show that a temporary waiver would be impracticable; and
	e. 	If a temporary waiver is granted, there is no automatic right to renewal. At the sole discretion of the department, a waiver may be renewed if the department finds that all of the factors set out in rule 481—6.5(10A,17A,ExecOrd11) remain valid.
	6.11(6) Time for ruling. The director/board shall grant or deny a petition for a waiver as soon as practicable but, in any event, shall do so within 120 days of its receipt, unless the petitioner agrees to a later date. However, if a petition is filed in a contested case, the director/board has the discretion to wait until the contested case is resolved before entering an order on the petition for waiver.
	6.11(7) When deemed denied. Failure of the director/board to grant or deny a petition within the required time period shall be deemed a denial of that petition by the director/board.
	6.11(8) Service of order. Within seven days of its issuance, any order issued under this chapter shall be transmitted to the petitioner or the person to whom the order pertains and to any other person entitled to such notice by any provision of law.
[ARC 5719C, IAB 6/16/21, effective 7/21/21]
481—6.12(10A,17A,ExecOrd11) Public availability.
	6.12(1) Subject to the provisions of Iowa Code section 17A.3(1)“e,” the department shall maintain a record of all orders granting or denying waivers under this chapter. All final rulings in response to requests for waivers shall be indexed and available to members of the public at the director’s office.
	6.12(2) Within 60 days of granting or denying a waiver, the department must make a submission on the Internet site established pursuant to Iowa Code section 17A.9A for the submission of waiver information.
	a. 	The submission shall:
	(1)	Identify the rules for which a waiver has been granted or denied;
	(2)	Identify the number of times a waiver was granted or denied for each rule;
	(3)	Include a citation to the statutory provisions implemented by these rules; and
	(4)	Include a general summary of the reasons justifying the department’s actions.
	b. 	To the extent practicable, the department shall include information detailing the extent to which the granting of a waiver has established a precedent for additional waivers and the extent to which the granting of a waiver has affected the general applicability of the rule itself.
[ARC 5719C, IAB 6/16/21, effective 7/21/21]
481—6.13(10A,17A,ExecOrd11) Voiding or cancellation. A waiver is void if the material facts upon which the request is based are not true or if material facts have been withheld. The director/board may at any time cancel a waiver upon appropriate notice and hearing if the director/board finds that the facts as stated in the request are not true, material facts have been withheld, the alternative means of compliance provided in the waiver have failed to achieve the objectives of the statute, or the requester has failed to comply with the conditions of the order.
[ARC 5719C, IAB 6/16/21, effective 7/21/21]
481—6.14(10A,17A,ExecOrd11) Violations. Violation of conditions in the waiver approval is the equivalent of violation of the particular rule for which the waiver is granted and is subject to the same remedies or penalties.
[ARC 5719C, IAB 6/16/21, effective 7/21/21]
481—6.15(10A,17A,ExecOrd11) Defense. After the director/board issues an order granting a waiver, the order is a defense within its terms and the specific facts indicated therein for the person to whom the order pertains in any proceeding in which the rule in question is sought to be invoked.
[ARC 5719C, IAB 6/16/21, effective 7/21/21]
481—6.16(10A,17A,ExecOrd11) Appeals. Any request for an appeal from a decision granting or denying a waiver shall be in accordance with the procedures provided in Iowa Code chapter 17A and rules adopted by the department. An appeal shall be taken within 30 days of the issuance of the ruling in response to the request unless a contrary time is provided by rule or statute.
[ARC 5719C, IAB 6/16/21, effective 7/21/21]
481—6.17(10A,17A,ExecOrd11) Sample petition for waiver.

BEFORE THE DEPARTMENT OF INSPECTIONS AND APPEALS	
Petition by (insert the name of petitioner)
for the waiver of (insert rule citation)
relating to (insert the subject matter).	}	PETITION FOR WAIVER	
Include the following information in the petition for waiver where applicable and known:
	1.	Provide the petitioner’s (the person that is asking for the waiver) name, address and telephone number.
	2.	Describe and cite the specific rule from which a waiver is requested.
	3.	Describe the specific waiver requested. Include the exact scope and time period that the waiver will extend.
	4.	Explain the important facts that the petitioner believes justify the waiver. Include in your explanation (a) why application of the rule would pose an undue hardship to the petitioner; (b) why granting the waiver would not prejudice the substantial legal rights of any person; (c) state whether the provisions of a rule subject to this petition are specifically mandated by statute or another provision of law; and (d) state whether public health, safety and welfare will be affected if the requested waiver is granted.
	5.	Provide history of prior contacts between the department and the petitioner relating to the regulated activity, license, audit, investigation, inspection or representation that would be affected by the waiver. In that history, include a description of each affected regulated activity, license, appeal, hearing, audit, investigation, inspection, representation or other assigned function of the department, any notices of violation, contested case hearings, or investigative reports relating to the regulated activity, license, appeal, hearing, audit, investigation, inspection, representation or other assigned function of the department within the last five years.
	6.	Provide information known to the petitioner regarding the department’s treatment of similar cases.
	7.	Provide the name, address and telephone number of any public agency or political subdivision which also regulates the activity in question or which might be affected by the granting of a waiver.
	8.	Provide the name, address and telephone number of any person or entity that would be adversely affected or disadvantaged by the granting of the waiver.
	9.	Provide signed releases of information authorizing persons with knowledge regarding the request to furnish the department with information relevant to the waiver.
I hereby attest to the accuracy and truthfulness of the above information.

Petitioner’s signature	 	Date	
[ARC 5719C, IAB 6/16/21, effective 7/21/21]
These rules are intended to implement Iowa Code section 17A.9A and Executive Order Number 11.
[Filed 4/12/01, Notice 1/24/01—published 5/2/01, effective 6/6/01]
[Filed ARC 5670C (Notice ARC 5551C, IAB 4/7/21), IAB 6/2/21, effective 7/21/21]
[Filed ARC 5719C (Notice ARC 5560C, IAB 4/21/21), IAB 6/16/21, effective 7/21/21]