Iowa Legislature: Bulletin_7_4

Bulletin 07-04-2018

Front matter not included

ARC 3885CIowa Public Employees’ Retirement System[495]Notice of Intended Action

Proposing rule making related to bona fide retirement and providing an opportunity for public comment

The Iowa Public Employees’ Retirement System (IPERS) hereby proposes to amend Chapter 11, “Application for, Modification of, and Termination of Benefits,” Iowa Administrative Code.Legal Authority for Rule Making This rule making is proposed under the authority provided in Iowa Code sections 97B.4 and 97B.15.State or Federal Law Implemented This rule making implements, in whole or in part, Iowa Code section 97B.52A.Purpose and Summary Sentences concerning bona fide retirement for newly elected officials were inadvertently deleted from subrule 11.5(1) in IPERS’ most recent rule making (ARC 3684C, IAB 3/14/18). This proposed rule making restores sentences on this subject. Specifically, IPERS adds the following language as an unnumbered paragraph in 11.5(1): “The bona fide retirement period will be waived if the member has been elected to public office which term begins during the normal four-month bona fide retirement period. This includes elected officials who shall be covered under this chapter as defined in Iowa Code section 97B.1A. This waiver does not apply if the member was an elected official who was reelected to the same position for another term.”Fiscal Impact This rule making has no fiscal impact to the State of Iowa. Jobs Impact IPERS-covered retirees will be allowed to serve as newly elected officials before they have completed a bona fide retirement period.Waivers Any person who believes that the application of the discretionary provisions of this rule making would result in hardship or injustice to that person may petition IPERS for a waiver of the discretionary provisions, if any. Public Comment Any interested person may submit written comments concerning this proposed rule making. Written comments in response to this rule making must be received by IPERS no later than 4:30 p.m. on July 24, 2018. Comments should be directed to: Gregg Schochenmaier Iowa Public Employees’ Retirement System 7401 Register DriveP.O. Box 9117Des Moines, Iowa 50306–9117Email: gsch@ipers.orgPublic Hearing No public hearing is scheduled at this time. As provided in Iowa Code section 17A.4(1)“b,” an oral presentation regarding this rule making may be demanded by 25 interested persons, a governmental subdivision, the Administrative Rules Review Committee, an agency, or an association having 25 or more members. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rule making by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rule making at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rule-making action is proposed:

ITEM 1. Amend subrule 11.5(1) as follows: 11.5(1) Bona fide retirement—general. To receive retirement benefits, a member under the age of 70 must officially leave employment with all IPERS-covered employers, give up all rights as an employee, and complete a period of bona fide retirement. A period of bona fide retirement means four or more consecutive calendar months for which the member qualifies for monthly retirement benefit payments. The qualification period begins with the member’s first month of entitlement for retirement benefits as approved by IPERS. A member may not return to covered employment before filing a completed application for benefits. Notwithstanding the foregoing, the continuation of group insurance coverage at employee rates for the remainder of the school year for a school employee who retires following completion of services by that individual shall not cause that person to be in violation of IPERS’ bona fide retirement requirements.A member will not be considered to have a bona fide retirement if the member is a school or university employee and returns to work with the employer after the normal summer vacation. In other positions, temporary or seasonal interruption of service which does not terminate the period of employment does not constitute a bona fide retirement. A member also will not be considered to have a bona fide retirement if the member has, prior to or during the member’s first month of entitlement, entered into verbal or written arrangements with the employer to return to employment after the expiration of the four-month bona fide retirement period.Effective July 1, 1990, a school employee will not be considered terminated if, while performing the normal duties, the employee performs for the same employer additional duties which take the employee beyond the expected termination date for the normal duties. Only when all the employee’s compensated duties cease for that employer will that employee be considered terminated.The bona fide retirement period shall be waived for an elected official covered under Iowa Code section 97B.1A(8)“a”(1), and for a member of the general assembly covered under Iowa Code section 97B.1A(8)“a”(2), when the elected official or legislator notifies IPERS of the intent to terminate IPERS coverage for the elective office and, at the same time, terminates all other IPERS-covered employment prior to the issuance of the retirement benefit. Such an elected official or legislator may remain in the elective office and receive an IPERS retirement without violating IPERS’ bona fide retirement rules. If such elected official or legislator terminates coverage for the elective office and also terminates all other IPERS-covered employment but is then reemployed in covered employment, and has not received a retirement as of the date of hire, the retirement shall not be made. Furthermore, if such elected official or legislator is reemployed in covered employment, the election to revoke IPERS coverage for the elective position shall remain in effect, and the elected official or legislator shall not be eligible for new IPERS coverage for such elected position. The prior election to revoke IPERS coverage for the elected position shall also remain in effect if such elected official or legislator is reelected to the same position without an intervening term out of office. The bona fide retirement period will be waived if the member has been elected to public office which term begins during the normal four-month bona fide retirement period. This includes elected officials who shall be covered under this chapter as defined in Iowa Code section 97B.1A. This waiver does not apply if the member was an elected official who was reelected to the same position for another term.Effective July 1, 2000, a member does not have a bona fide retirement until all employment with covered employers, including employment which is not covered under this chapter, is terminated for at least one month, and the member does not return to covered employment for an additional three months. In order to receive retirement benefits, the member must file a completed application for benefits before returning to any employment with a covered employer.Effective July 1, 2018, a member will not have a bona fide retirement if the member enters into a verbal or written arrangement to perform duties for the member’s former employer(s) as an independent contractor prior to or during the member’s first month of entitlement or performs any duties for the member’s former employer(s) as an independent contractor prior to receiving four months of retirement benefits. ARC 3867CRegents Board[681]Notice of Intended Action

Proposing rule making related to regent admission index and providing an opportunity for public comment

The Board of Regents hereby proposes to amend Chapter 1, “Admission Rules Common to the Three State Universities,” Iowa Administrative Code.Legal Authority for Rule Making This rule making is proposed under the authority provided in Iowa Code section 262.9(3).State or Federal Law Implemented This rule making implements, in whole or in part, Iowa Code section 262.9(3).Purpose and Summary Currently, two formulas are utilized to calculate the Regent Admission Index (RAI). The RAI is used to determine whether a graduate of an Iowa high school will be automatically admitted to a Regent institution of higher education. The primary formula uses ACT score, high school class rank, GPA, and number of courses completed in core subject areas. The alternative formula uses ACT score, GPA, and number of courses completed in core subject areas. A growing number of high schools no longer assign a class rank. The Regents’ Inter-Institutional Admissions Study Team reviewed the two formulas for calculating the RAI and recommended that beginning with students applying for admission for the Summer 2020 term, the alternative formula (ACT, GPA, and core courses) be the only formula used to calculate the RAI. This amendment will eliminate the use of the primary formula effective with admissions for the Summer 2020 term.Fiscal Impact This rule making has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rule making, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rule making would result in hardship or injustice to that person may petition the Board for a waiver of the discretionary provisions, if any, pursuant to rule 681—19.18(17A). Public Comment Any interested person may submit written comments concerning this proposed rule making. Written comments in response to this rule making must be received by the Board no later than 4:30 p.m. on July 24, 2018. Comments should be directed to: Aimee Claeys Board of Regents 11260 Aurora AvenueUrbandale, Iowa 50322-7905Fax: 515.281.6420Public Hearing No public hearing is scheduled at this time. As provided in Iowa Code section 17A.4(1)“b,” an oral presentation regarding this rule making may be demanded by 25 interested persons, a governmental subdivision, the Administrative Rules Review Committee, an agency, or an association having 25 or more members. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rule making by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rule making at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rule-making action is proposed:

ITEM 1. Amend subrule 1.1(2) as follows: 1.1(2) Admission criteria. a. Effective for students who seek admission prior to fall 2009.Graduates of approved Iowa high schools who have the subject matter background required by each university and who rank in the upper one-half of their graduating class will be admitted to any regent university. Applicants who are not in the upper one-half of their graduating class may, after an individual review of their academic and test records, and at the discretion of the admissions officers: (1) Be admitted unconditionally, (2) Be admitted conditionally, (3) Be required to enroll for a tryout period during a preceding summer session, or (4) Be denied admission. b. a. Effective for students who seek admission in fall 2009 and thereafter.Effective for students who seek admission in fall 2009 and thereafter through spring 2020. (1) Decisions on admission to a regent university are based on the following four factors: performance on standardized tests (SAT Reasoning Test or ACT); high school grade point average (GPA); high school percentile rank in class (when available); and number of high school courses completed in the core subject areas. A primary regent admission index (RAI) will be calculated for each freshman applicant using the formula below when the high school has provided a class rank.For purposes of calculating the primary RAI, the ACT composite score has a top value of 36 (SAT scores will be converted to ACT composite equivalents), high school rank is expressed as a percentile with 99 percent as the top value, high school GPA is expressed on a four-point scale, and number of high school courses completed in the core subject areas is expressed in terms of years or fractions of years of study.RAI=(2 × ACT composite score)+(1 × high school rank expressed as a percentile)+(20 × high school grade point average)+(5 × number of high school courses completed in the core subject areas)Note: For purposes of calculating the primary regent admission index, the ACT composite score has a top value of 36 (SAT scores will be converted to ACT composite equivalents); high school rank is expressed as a percentile with 99 percent as the top value; high school GPA is expressed in a four-point scale; and number of high school courses completed in the core subject areas is expressed in terms of years or fractions of years of study. (2) Graduates of approved Iowa high schools who have the subject matter background required by each university and who meet the regent admission index of 245 required for automatic admission will be admitted to any regent university. Applicants who do not meet the regent admission index of 245 for automatic admission or for whom a regent admission index cannot be calculated may, after an individual review of their academic and test records, and at the discretion of the admissions officers:

Be admitted unconditionally,
Be admitted conditionally,
Be required to enroll for a tryout period during a preceding summer session, or
Be denied admission.

The regent universities recognize that the traditional measures of academic performance do not adequately describe some students’ potential for success. Therefore, the regent universities strongly encourage all interested students to apply for admission. Applicants who feel their academic record is not an accurate reflection of their potential for success are encouraged to provide supplemental information explaining their circumstances, in addition to the application, academic transcripts, and test scores.Note: For purposes of calculating the alternative regent admission index, the ACT composite score has a top value of 36 (SAT scores will be converted to ACT composite equivalents); high school GPA is expressed on a four-point scale; and number of high school courses completed in the core subject areas is expressed in terms of years or fractions of years of study. (2) An alternative RAI will be calculated for each freshman applicant using the equation identified in paragraph 1.1(2)“b” when the high school has not provided a class rank. b. Effective for students who seek admission in summer 2020 and thereafter.An alternative regent admission index (RAI)RAI will be calculated for each freshman applicant using the equation below when the high school has not provided a class rank.For purposes of calculating the RAI, the ACT composite score has a top value of 36 (SAT scores will be converted to ACT composite equivalents), high school GPA is expressed on a four-point scale, and number of high school courses completed in the core subject areas is expressed in terms of years or fractions of years of study.RAI=(3 × ACT composite score)+(30 × high school grade point average)+(5 × number of high school courses completed in the core subject areas) c. Freshman applicants from Iowa high schools who have an RAI of at least 245 and who meet the minimum number of high school courses required byrequirements of the regent universities will qualify for automatic admission to any of the three regent universities. Freshman applicants who have an RAI below 245 may also be admitted to a specific regent university; however, each regent university will review these applications on an individual basis, and admission decisions will be specific to each institution.ARC 3864CTransportation Department[761]Notice of Intended Action

Proposing rule making related to automated traffic enforcement and providing an opportunity for public comment

The Department of Transportation hereby proposes to rescind Chapter 144, “Automated Traffic Enforcement on the Primary Road System,” Iowa Administrative Code.Legal Authority for Rule Making This rule making is proposed under the authority provided in Iowa Code section 307.12.State or Federal Law Implemented This rule making does not implement a state or federal law but instead rescinds rules determined by the Iowa Supreme Court to be beyond the Department’s rule-making authority.Purpose and Summary On April 27, 2018, the Iowa Supreme Court, in Case No.17-0686, City of Des Moines, City of Muscatine and City of Cedar Rapids v. Iowa DOT, ruled that the Department did not have the statutory authority to adopt or enforce the rules set forth in Chapter 144. Consistent with this ruling, the Department proposes to rescind this chapter.Fiscal Impact The Department is unable to determine the fiscal impact of rescinding this chapter. Individual cities and counties will determine whether and to what extent they maintain existing automated traffic enforcement systems and locations or add new systems or locations. Jobs Impact After analysis and review of this rule making, no impact on jobs has been found.Waivers A waiver provision is not included in this rule making because the Department is rescinding the chapter. Public Comment Any interested person may submit written comments concerning this proposed rule making or may submit a written request to make an oral presentation at a public hearing. Written comments or requests to present oral comments in response to this rule making must be received by the Department no later than 4:30 p.m. on July 24, 2018. Comments should be directed to: Tracy George Department of Transportation DOT Rules Administrator, Strategic Communications and Policy800 Lincoln WayAmes, Iowa 50010 Email: tracy.george@iowadot.usPublic Hearing A public hearing to hear requested oral presentations will be held as follows: July 26, 2018 10 a.m.Department of Transportation Administration Building Third Floor Conference Room 800 Lincoln Way Ames, Iowa Persons who wish to make oral comments at the public hearing may be asked to state their names for the record and to confine their remarks to the subject of this proposed rule making. Any persons who intend to attend the public hearing and have special requirements, such as those related to hearing or mobility impairments, should contact Tracy George, the Department’s rules administrator, and advise of specific needs. The public hearing will be canceled without further notice if no oral presentation is requested. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rule making by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rule making at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rule-making action is proposed:

ITEM 1. Rescind and reserve 761—Chapter 144.ARC 3865CTransportation Department[761]Notice of Intended Action

Proposing rule making related to driver’s licenses and providing an opportunity for public comment

The Department of Transportation hereby proposes to amend Chapter 605, “License Issuance,” Iowa Administrative Code.Legal Authority for Rule Making This rule making is proposed under the authority provided in Iowa Code sections 307.12 and 321.196.State or Federal Law Implemented This rule making implements, in whole or in part, Iowa Code sections 321.182, 321.189 and 321.196.Purpose and Summary The Department is proposing to update Chapter 605 to incorporate amendments that align with existing legal authority and Department practice and to eliminate outdated or irrelevant requirements or options and accommodate modern electronic procedures. The proposed amendments update the physical description related to eye color to align with eye color selections that already exist in the electronic license issuance system and strike outdated language related to the fee for a replacement license issued when a person no longer needs a license marked “under 18” or “under 21.” Previously, Iowa Code section 321.189(6) set the replacement fee for this type of license at $1; however, the statute has since been amended to set the replacement fee at $10. The Department is proposing to simplify the address change process to clarify that an address change may be completed online at the Department’s website or at a driver’s license kiosk and to no longer require that a person renewing a driver’s license produce two forms of proof to notify the Department of a residential address change. The proposed amendments also allow the renewal of a person’s driver’s license within 180 days prior to the expiration date of the license, which provides more convenience and flexibility to the renewal process. Finally, the proposed amendments expand the list of who can take advantage of the online license renewal option by allowing a person with a “J” restriction that corresponds directly to a “7” (minor’s school license), “Y” (intermediate license) or “I” (ignition interlock required) restriction on the back of the person’s driver’s license to be able to renew the license online because these combinations of restrictions do not affect the person’s eligibility to renew the license online. Fiscal Impact This rule making has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rule making, no impact on jobs has been found.Waivers Any person who believes that the person’s circumstances meet the statutory criteria for a waiver may petition the Department for a waiver under 761—Chapter 11. Public Comment Any interested person may submit written comments concerning this proposed rule making or may submit a written request to make an oral presentation at a public hearing. Written comments or requests to present oral comments in response to this rule making must be received by the Department no later than 4:30 p.m. on July 24, 2018. Comments should be directed to: Tracy George Department of Transportation DOT Rules Administrator, Strategic Communications and Policy800 Lincoln WayAmes, Iowa 50010 Email: tracy.george@iowadot.usPublic Hearing A public hearing to hear requested oral presentations will be held as follows: July 26, 2018Department of Transportation1 p.m. Motor Vehicle Division6310 SE Convenience BoulevardAnkeny, Iowa Persons who wish to make oral comments at the public hearing may be asked to state their names for the record and to confine their remarks to the subject of this proposed rule making. Any persons who intend to attend the public hearing and have special requirements, such as those related to hearing or mobility impairments, should contact Tracy George, the Department’s rules administrator, and advise of specific needs. The public hearing will be canceled without further notice if no oral presentation is requested. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rule making by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rule making at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rule-making actions are proposed:

ITEM 1. Amend paragraph 605.2(3)"a" as follows: a. The licensee’s eye color using these abbreviations: Blk-black, Blu-blue, Bro-brown,Dic-dichromatic, Gry-gray, Grn-green, Haz-hazel, and Pnk-pinkand Unk-unknown.

ITEM 2. Amend paragraph 605.2(6)"b" as follows: b. Beginning January 15, 2013, aA driver’s license that is not issued as a REAL ID license as defined in 761—601.7(321) may be marked as required by 6 CFR 37.71 and any subsequent guidance issued by the U.S. Department of Homeland Security.

ITEM 3. Amend rule 761—605.4(321), implementation sentence, as follows: This rule is intended to implement Iowa Code sections 321.180 as amended by 2015 Iowa Acts, House File 635, section 50, and 321.189.

ITEM 4. Amend rule 761—605.5(321), implementation sentence, as follows: This rule is intended to implement Iowa Code chapter 321A and sections 321.178, 321.180 as amended by 2015 Iowa Acts, House File 635, section 50, 321.180A, 321.180B, 321.188 as amended by 2015 Iowa Acts, House File 635, section 53, 321.189, 321.193, 321.194, 321.215, 321J.4, and 321J.20.

ITEM 5. Amend subrule 605.11(3) as follows: 605.11(3) Fee. The fee to replace a license is $10. Anything in this rule, notwithstanding the fee for replacement of a license under paragraphs 605.11(2)“f” and 605.11(2)“g,” shall be as set forth in Iowa Code subsection 321.189(6).

ITEM 6. Amend subrule 605.12(1) as follows: 605.12(1) A licensee shall notify the department of a change in the licensee’s mailing address within 30 days of the change. Notice shall be given by: a. Submitting the address change in writing to the office of driver services,Driver and Identification Services, Iowa Department of Transportation, P.O. Box 9204, Des Moines, Iowa 50306-9204; or b. Completing the address change on the department’s website at www.iowadot.gov or at a driver’s license kiosk; or b. c. Appearing in person to change the mailing address at any driver’s license examination stationservice center.

ITEM 7. Amend subrule 605.15(2), introductory paragraph, as follows: 605.15(2) Procedure. The licensee shall apply for an extension by submitting Form 430027 to the department. The form may be obtained from and submitted to a driver’s license examination stationservice center. The licensee may also apply by letter to the address in 761—600.2(17A).paragraph 605.12(1)“a.”

ITEM 8. Amend subrule 605.16(2) as follows: 605.16(2) Request for retention of record. A person with a military extension may request that the department retain the record of license issuance for the duration of the extension or reenter the record if it has been removed from department records. The request may be made by letter or by using Form 430081. The letter or Form 430081 shall be signed by the person’s commanding officer to verify the military service and shall be submitted to the department at the address in 761—600.2(17A).paragraph 605.12(1)“a.”

ITEM 9. Amend rule 761—605.25(321) as follows:

761—605.25(321) License renewal. 605.25(1) A licensee who wishes to renew a driver’s license shall apply to the department and, if required, pass the appropriate examination. 605.25(2) A valid license may be renewed 30within 180 days before the expiration date. If this is impractical, the department for good cause may renew a license earlier. 605.25(3) A valid license may be renewed within 60 days after the expiration date, unless otherwise specified. 605.25(4) If the licensee’s current residential address, name, date of birth, or sex designation has changed since the previous license was issued, the licensee shall comply with the following: a. Current residential address.The licensee shall comply with the requirements of 761—subrule 601.5(3) to establish a change ofnotify the department to establish the current residential address. b. Name.The licensee shall comply with the requirements of 761—subrule 601.5(5) to establish a name change. c. Date of birth.The licensee shall comply with the requirements of 761—subrule 601.5(6) to establish a change of date of birth. d. Sex designation.The licensee shall comply with the requirements of 761—subrule 601.5(7) to establish a change of sex designation. 605.25(5) A licensee who has not previously been issued a license that may be accepted for federal identification purposes under 6 CFR Part 37 (a REAL ID license) and wishes to obtain a REAL ID license upon renewal must comply with the requirements of 761—601.5(321) to obtain a REAL ID license upon renewal. 605.25(6) A licensee who is a foreign national with temporary lawful status must provide documentation of lawful status as required by 761—subrule 601.5(4) at each renewal. 605.25(7) The department may determine means or methods for electronic renewal of a driver’s license. a. An applicant who meets the following criteria may apply for electronic renewal: (1) The applicant must be at least 18 years of age but not yet 70 years of age. (2) The applicant completed a satisfactory vision screen or submitted a satisfactory vision report under 761—subrules 604.10(1) to 604.10(3) and updated the applicant’s photo at the applicant’s last issuance or renewal. (3) The applicant’s driver’s license has not been expired for more than one year. (4) The department’s records show the applicant is a U.S. citizen. (5) The applicant’s driver’s license is not marked “valid without photo.” (6) The applicant is not seeking to change any of the following information as it appears on the applicant’s driver’s license:

Name.
Date of birth.
Sex.

(7) The applicant’s driver’s license is a Class C noncommercial driver’s license, a Class D noncommercial driver’s license (chauffeur), or Class M noncommercial driver’s license (motorcycle) that is not a special license or permit, a temporary restricted license, or a two-year license. (8) The applicant is not subject to a pending request for reexamination. (9) The applicant does not wish to change any of the following:

Class of license.
License endorsements.
License restrictions.

(10) The applicant is not subject to any of the following restrictions:G—No driving when headlights requiredJ—Restrictions on the back of cardT—Medical report required at renewal8—Special instruction permitQ—No interstate or freeway drivingR—Maximum speed of 35 mph b. Notwithstanding any other provision of this subrule to the contrary, the department may accept an electronic renewal application if the license contains a single “J” restriction accompanied by a “7,” “I” or “Y” restriction. b. c. The department reserves the right to deny electronic renewal and to require the applicant to personally apply for renewal at a driver’s license examination stationservice center if it appears to the department that the applicant may have a physical or mental condition that may impair the applicant’s ability to safely operate a motor vehicle, even if the applicant otherwise meets the criteria in 605.25(7)“a.” c. d. An applicant who has not previously been issued a driver’s license that is compliant with the REAL ID Act of 2005, 49 U.S.C. Section 30301 note, as further defined in 6 CFR Part 37 (a REAL ID license) may not request a REAL ID driver’s license by electronic renewal. This rule is intended to implement Iowa Code sections 321.186 and 321.196 as amended by 2013 Iowa Acts, House File 355, section 1, the REAL ID Act of 2005 (49 U.S.C. Section 30301 note), and 6 CFR Part 37.ARC 3866CTransportation Department[761]Notice of Intended Action

Proposing rule making related to undercover driver’s licenses and providing an opportunity for public comment

The Department of Transportation hereby proposes to amend Chapter 625, “Driver’s Licenses for Undercover Law Enforcement Officers,” Iowa Administrative Code.Legal Authority for Rule Making This rule making is proposed under the authority provided in Iowa Code sections 307.12 and 321.189A.State or Federal Law Implemented This rule making implements, in whole or in part, Iowa Code sections 80G.3 and 321.189A and 6 CFR Part 37.Purpose and Summary The Department is proposing to update Chapter 625 to incorporate amendments that align with existing legal authority and Department practice and to eliminate outdated or irrelevant requirements or options. The office name and address are corrected to accurately identify the Bureau of Investigation and Identity Protection as the office responsible for the review associated with the issuance of undercover licenses under this chapter, and the amendments clarify that an investigation of an application for an undercover driver’s license will consist of verification of the applicant’s employment with the sponsoring law enforcement agency and will no longer include a check of a fictitious social security number as those numbers are no longer being used. The process of issuing a driver’s license to an undercover law enforcement officer is amended to align the rule with the current practice of requiring an applicant to appear at the Motor Vehicle Division headquarters in Ankeny, Iowa, in order to be issued the initial undercover driver’s license; to clarify that the requirements of rule 761—601.5(321), related to proofs submitted with an application, are waived in conformance with the authority in the federal REAL ID regulations in 6 CFR Part 37 for issuance of credentials to undercover law enforcement officers; and to rescind rule 761—625.4(321), relating to renewal of an undercover driver’s license, and move the content of that rule to new subrule 625.3(3). An undercover driver’s license may not be renewed, but a new application may be submitted and, if accepted, the Department may issue a new undercover license for an individual who continues to meet the undercover license criteria. Finally, the proposed amendments add cross references to Iowa Code section 80G.3, which relates to the confidential treatment of undercover law enforcement records, and to 6 CFR Part 37, which relates to the documentation required for issuance of a credential to undercover law enforcement officers in accordance with the federal REAL ID regulations.Fiscal Impact This rule making has no fiscal impact to the State of Iowa.Jobs Impact After analysis and review of this rule making, no impact on jobs has been found.Waivers Any person who believes that the person’s circumstances meet the statutory criteria for a waiver may petition the Department for a waiver under 761—Chapter 11.Public Comment Any interested person may submit written comments concerning this proposed rule making or may submit a written request to make an oral presentation at a public hearing. Written comments or requests to present oral comments in response to this rule making must be received by the Department no later than 4:30 p.m. on July 24, 2018. Comments should be directed to: Tracy George Department of Transportation DOT Rules Administrator, Strategic Communications and Policy800 Lincoln WayAmes, Iowa 50010 Email: tracy.george@iowadot.usPublic Hearing A public hearing to hear requested oral presentations will be held as follows: July 26, 2018Department of Transportation2 p.m. Motor Vehicle Division6310 SE Convenience BoulevardAnkeny, Iowa Persons who wish to make oral comments at the public hearing may be asked to state their names for the record and to confine their remarks to the subject of this proposed rule making. Any persons who intend to attend the public hearing and have special requirements, such as those related to hearing or mobility impairments, should contact Tracy George, the Department’s rules administrator, and advise of specific needs. The public hearing will be canceled without further notice if no oral presentation is requested. Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rule making by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rule making at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6). The following rule-making actions are proposed:

ITEM 1. Amend paragraph 625.2(1)"e" as follows: e. Be submitted to the office of driver services at the address in rule 761—600.2(17A)Bureau of Investigation and Identity Protection, Iowa Department of Transportation, 6310 SE Convenience Blvd., Ankeny, Iowa 50021.

ITEM 2. Amend subrule 625.2(2) as follows: 625.2(2) All applications shall be investigated by the department. An investigation shall include, but not be limited to, a 50-state check of the fictitious name and, if provided, fictitious social security numberverification of the applicant’s employment with the sponsoring law enforcement agency.

ITEM 3. Amend rule 761—625.3(321) as follows:

761—625.3(321) Issuance. 625.3(1) To obtain an undercover license after the application is approved, the applicant must appear at a driver’s license examination station that has record capabilitiesthe Motor Vehicle Division offices, Iowa Department of Transportation, 6310 SE Convenience Blvd., Ankeny, Iowa, with all applicable documents necessary for the issuance of an undercover license. 625.3(2) A two-year license will be issued. The applicant must pay all fees and meet all requirements for the class of license applied for, except that 761—subrule 601.5(1)rule 761—601.5(321) is waivedin accordance with the provisions in 6 CFR Part 37. 625.3(3) An undercover license may not be renewed. The department may issue a subsequent new undercover license to an applicant who submits a new application and continues to meet the requirements of rule 761—625.2(321).

ITEM 4. Rescind and reserve rule 761—625.4(321).

ITEM 5. Amend subrule 625.6(1) as follows: 625.6(1) Applications, forms and other records of the department that establish the true identity of an applicant or licensee under this chapter are confidential public records under Iowa Code sections 22.7, 80G.3 and 321.189A. The fictitious license information itself is not confidential, except as provided in Iowa Code section 321.11.

ITEM 6. Amend 761—Chapter 625, implementation sentence, as follows: These rules are intended to implement Iowa Code sections 22.7, 80G.3 and 321.189A, and 6 CFR Part 37.ARC 3869CHuman Services Department[441]Filed Emergency After Notice

Rule making related to average cost of nursing facility services and average charges and maximum Medicaid rate for institutional care

The Human Services Department hereby amends Chapter 75, “Conditions of Eligibility,” Iowa Administrative Code. Legal Authority for Rule Making This rule making is adopted under the authority provided in Iowa Code section 249A.4.State or Federal Law Implemented This rule making implements, in whole or in part, Iowa Code section 249A.4.Purpose and Summary This rule making amends subrule 75.23(3) to increase the statewide average cost of nursing facility services to a private-pay person. The figure is being revised to reflect the increase in the cost of private-pay rates for nursing facility care in Iowa. The change is not related to rates paid by Medicaid for nursing facility care. The figure is used to determine the period of ineligibility when an applicant or recipient transfers assets for less than fair market value. When assets are transferred to attain or maintain Medicaid eligibility, the individual may be ineligible for Medicaid payment of long-term care services for a period of time. The period of ineligibility is determined by dividing the amount transferred by the statewide average cost of nursing facility services to a private-pay person. The Department conducted a survey of the freestanding nursing facilities, hospital-based skilled facilities, and special population facilities in Iowa to update the statewide average cost for nursing facilities. The average monthly private-pay cost of nursing facility services increased from $6,269.63 to $6,447.54. This rule making also amends subparagraphs 75.24(3)“b”(1), (2) and (4) to adjust the average charges for nursing facilities and psychiatric medical institutions for children (PMICs) and to update the maximum Medicaid rate for intermediate care facilities for persons with an intellectual disability (ICF/IDs). These figures are used to determine the disposition of the income of a medical assistance income trust (MAIT). Nursing facility amounts are not related to the rates paid by Medicaid for nursing facility care. For this purpose, the Department’s survey for statewide average private-pay charges at the nursing facility level of care included only the freestanding nursing facilities in Iowa. Hospital-based skilled facilities and special populations units were not included in the survey since recipients are allowed to use the average cost of the specialized care. The average charges for PMICs are based on the average statewide charge to a private-pay resident of a psychiatric medical institution for children. The increases in these amounts will allow additional individuals to qualify for medical assistance by decreasing the period of ineligibility for a transfer of assets and allowing additional individuals to qualify for medical assistance with MAITs because the income limit at which all income assigned to a MAIT is considered to be available for Medicaid eligibility purposes is increased. The average statewide charge to a resident of a mental health institute (MHI) is addressed in a separate rule making (see ARC 3870C, IAB 7/4/18).Public Comment and Changes to Rule Making Notice of Intended Action for this rule making was published in the Iowa Administrative Bulletin on April 25, 2018, as ARC 3760C. No public comments were received. No changes from the Notice have been made.Reason for Waiver of Normal Effective Date Pursuant to Iowa Code section 17A.5(2)“b”(1)(b), the Department also finds that the normal effective date of this rule making, 35 days after publication, should be waived and the rule making made effective on July 1, 2018, because the amendments confer a benefit on the public. The average costs, average charges, and maximum Medicaid rate are increased, allowing more individuals to be eligible by decreasing the period of ineligibility due to transfer of assets and allowing more individuals to be eligible with a MAIT.Adoption of Rule Making This rule making was adopted by the Council on Human Services on June 13, 2018.Fiscal Impact An increase in the statewide average cost used to determine the period of ineligibility for long-term care services due to a transfer of assets may increase Medicaid expenditures because the period of ineligibility for transfers will be shorter. Given the marginal nature of this change, coupled with the level of income required in order to be impacted, any fiscal impact would be minimal. The change in the average statewide charges and maximum Medicaid rate used for disposition of MAITs may increase Medicaid expenditures by allowing more individuals to become eligible by establishing a MAIT. Given the marginal nature of this change, coupled with the level of income required in order to be impacted, any fiscal impact would be minimal.Jobs Impact After analysis and review of this rule making, no impact on jobs has been found.Waivers These amendments do not contain waiver provisions because they confer a benefit. Everyone should be subject to the same amounts set by this rule making. Individuals may request an exception pursuant to the Department’s general rule on exceptions to policy at rule 441—1.8(17A,217).Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rule making by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rule making at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rule making became effective on July 1, 2018. The following rule-making actions are adopted:

ITEM 1. Amend subrule 75.23(3) as follows: 75.23(3) Period of ineligibility. The number of months of ineligibility shall be equal to the total cumulative uncompensated value of all assets transferred by the individual (or the individual’s spouse) on or after the look-back date specified in subrule 75.23(2), divided by the statewide average private-pay rate for nursing facility services at the time of application. The department shall determine the average statewide cost to a private-pay resident for nursing facilities and update the cost annually. For the period from July 1, 20172018, through June 30, 20182019, this average statewide cost shall be $6,269.63$6,447.54 per month or $206.24$212.09 per day.

ITEM 2. Amend paragraph 75.24(3)"b", introductory paragraph, as follows: b. A trust established for the benefit of an individual if the trust is composed only of pension, social security, and other income to the individual (and accumulated income of the trust), and the state will receive all amounts remaining in the trust upon the death of the individual up to the amount equal to the total medical assistance paid on behalf of the individual. For disposition of trust amounts pursuant to Iowa Code sections 633C.1 to 633C.5, the average statewide charges and Medicaid rates for the period from July 1, 20172018, to June 30, 20182019, shall be as follows:

ITEM 3. Amend subparagraphs 75.24(3)"b", 75.24(3)"b" and 75.24(3)"b" as follows: (1) The average statewide charge to a private-pay resident of a nursing facility is $5,829$6,005 per month. (2) The maximum statewide Medicaid rate for a resident of an intermediate care facility for persons with an intellectual disability is $29,240$31,529 per month. (4) The average statewide charge to a private-pay resident of a psychiatric medical institution for children is $7,999$9,088 per month. [Filed Emergency After Notice 6/13/18, effective 7/1/18][Published 7/4/18]Editor’s Note: For replacement pages for IAC, see IAC Supplement 7/4/18.ARC 3870CHuman Services Department[441]Filed Emergency After Notice

Rule making related to average charge for care in a mental health institute

ITEM 1. Amend subparagraph 75.24(3)"b" as follows: (3) The average statewide charge to a resident of a mental health institute is $29,312$27,667 per month. [Filed Emergency After Notice 6/13/18, effective 7/1/18][Published 7/4/18]Editor’s Note: For replacement pages for IAC, see IAC Supplement 7/4/18.ARC 3868CHomeland Security and Emergency Management Department[605]Adopted and Filed

Rule making related to the 911 network

The Department of Homeland Security and Emergency Management hereby amends Chapter 10, “911 Telephone Systems,” Iowa Administrative Code.Legal Authority for Rule Making This rule making is adopted under the authority provided in Iowa Code section 34A.22 and 2018 Iowa Acts, House File 2254, section 11.State or Federal Law Implemented This rule making implements, in whole or in part, Iowa Code chapter 34A as amended by 2018 Iowa Acts, House File 2254.Purpose and Summary The amendments implement 2018 Iowa Acts, House File 2254. The amendments provide for the elimination of the wireline 911 network and the merging of that associated 911 traffic onto the Next Generation 911 Network. Additionally, the amendments create a public safety answering point (PSAP) shared technology service for those answering points wishing to access 911 call processing equipment in a host remote environment. Thirdly, the amendments do not alter the surcharge funding streams related to the wireline surcharge and the emergency communications surcharge local PSAP pass-through percentage. Finally, the consolidation grants remain in place while also removing the spending limitation that had been in place on the Emergency Communications Service Fund.Public Comment and Changes to Rule Making Notice of Intended Action for this rule making was published in the Iowa Administrative Bulletin on May 9, 2018, as ARC 3778C. A public hearing was held on May 29, 2018, at 11 a.m. in the Cyclones Conference Room, Suite 500, 7900 Hickman Road, Windsor Heights, Iowa. No one attended the public hearing. No public comments were received. Two changes from the Notice have been made. In two instances in Item 5, the word “Network” was added to the phrase “NG911 Implementation and Operations Plan” for consistency. Adoption of Rule Making This rule making was adopted by the Department on June 13, 2018.Fiscal Impact This rule making has a fiscal impact to the State of Iowa. The Department is estimated to spend $10.6 million to merge networks and create the shared service environment. With 100 percent PSAP participation, this process will create an annual savings of $6.6 million in expenses for the local 911 service boards and PSAPs. Jobs Impact After analysis and review of this rule making, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rule making would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rule making by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rule making at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rule making will become effective on August 8, 2018. The following rule-making actions are adopted:

ITEM 1. Adopt the following new definitions in rule 605—10.2(34A): "911 call processing equipment" means equipment owned by the department that functions in a host remote environment, provides 911 call processing functionality to public safety answering points, and utilizes the next generation 911 network. “911 call processing equipment” includes but is not limited to computer aided dispatch, voice logging recorders, mapping, and emergency medical dispatch. "911 call processing equipment provider" means a vendor or vendors selected by the department to provide 911 call processing equipment. "911 call transport provider" means a vendor or vendors selected by the department to deliver aggregated wireline 911 call traffic to the next generation 911 network and from the next generation 911 network to public safety answering points. "Next generation 911 network service provider" means a vendor or vendors selected by the department to provide next generation 911 network functionality.

ITEM 2. Amend rule 605—10.2(34A), definitions of “911 service plan,” “Next generation 911 network,” and “Voice over internet protocol service” as follows: "911 service plan" means a plan, produced by a joint 911 service board, which includes the information required by Iowa Code subsection 34A.2(2) as enactedamended by 20172018 Iowa Acts, Senate File 500, section 3House File 2254, section 2. "Next generation 911 network" means an internet protocol-enabled system that enables the public to transmit digital information to public safety answering points andis responsible for the delivery of all 911 messages within the state. “Next generation 911 network” replaces enhanced 911 and that includesbut is not limited to 911 voice and nonvoice messages generated by originating service providers, ESInet, GIS, cybersecurity, and other system components. "Voice over internet protocol service" means a service to which all of the following apply:

The service provides real-time, two-way voice communications transmitted using internet protocol andor a successor protocol.
The service is offered to the public, or such classes of users as to be effectively available to the public.
The service has the capability to originate traffic to, and terminate traffic from, the public switched telephone network or a successor network.

ITEM 3. Amend subrule 10.4(2) as follows: 10.4(2) The 911 service plan shall, at a minimum, encompass the entire county, unless a waiver is granted by the director. Each plan shall include: a. The mailing address of the joint 911 service board. b. A list of voting members on the joint 911 service board. c. A list of nonvoting members on the joint 911 service board. d. The name of the chairperson and of the vice chairperson of the joint 911 service board. e. A geographical description of the 911 service area. f. A list of all public and private safety agencies within the 911 service area. g. The number of public safety answering points within the 911 service area. h. Identification of the agency responsible for management and supervision of the 911 emergency telephone communication system. i. h. A statement of recurring and nonrecurring costs to be incurred by the joint 911 service board. These costs shall be limited to costs directly attributable to the provision of 911 service. j. i. The total number of telephone access lines by a telephone company or companies having points of presence within the 911 service area and the number of this total that is exempt from surcharge collection as provided in rule 605—10.9(34A) and Iowa Code subsection 34A.7(3). k. j. If applicable, a schedule for implementation of the plan throughout the 911 service area. A joint 911 service board may decide not to implement 911 service. l. k. The total property valuation in the 911 service area. m. l. Maps of the 911 service area showing: (1) The jurisdictional boundaries of all law enforcement agencies serving the area. (2) The jurisdictional boundaries of all firefighting districts and companies serving the area. (3) The jurisdictional boundaries of all ambulance and emergency medical service providers operating in the area. (4) Telephone exchange boundaries and the location of telephone company central offices, including those located outside but serving the service area. (5) (4) The location of PSAP(s) within the service area. n. m. A block drawing for each telephone central office within the service area showing the method by which the 911 call will be delivered to the PSAP(s). o. n. A plan to migrate to an internet protocol-enabled next generation network.

ITEM 4. Amend rule 605—10.7(34A) as follows:

605—10.7(34A) Wireless NG911Network Implementation and Operations Plan. Each joint 911 service board, the department of public safety, the 911 communications council, and wireless communicationsoriginating service providers shall cooperate with the 911 program manager in preparing the Wireless NG911Network Implementation and Operations Plan for statewide implementation of wireless NG911 service. 10.7(1) Plan specifications. The Wireless NG911Network Implementation and Operations Plan shall include, at a minimum, the following information: 1a. Maps showing the geographic location within the county of each PSAP that receives wireless 911 telephoneemergency calls. 2b. A list of all public safety answering points within the state of Iowa. 3c. A set of guidelines for determining eligible cost as set forth in Iowa Code section 34A.7A. 4d. A schedule for the implementation and maintenance of the next generation 911 systems to provide enhanced wireless 911 phase I and phase II servicenetwork. e. A schedule for the implementation, maintenance and cost sharing of 911 call processing equipment. 10.7(2) Adoption by reference. The “Wireless NG911Network Implementation and Operations Plan,” effective August 30, 2015July 1, 2018, and available from the Homeland Security and Emergency Management Department, 7900 Hickman Road, Suite 500, Windsor Heights, Iowa, or at the Law Library in the Capitol Building, Des Moines, Iowa, is hereby adopted by reference effective December 30, 2015August 8, 2018.

ITEM 5. Amend rule 605—10.9(34A) as follows:

605—10.9(34A) 911 emergency communications fund. 10.9(1) Emergency communications service surcharge money, collected and remitted by originating service providers, shall be placed in a fund within the state treasury under the control of the director. 10.9(2) Iowa Code section 8.33 shall not apply to moneys in the fund. Moneys earned as income, including as interest, from the fund shall remain in the fund until expended as provided in this subrule. However, moneys in the fund may be combined with other moneys in the state treasury for purposes of investment. 10.9(3) Moneys in the fund shall be expended and distributed in the following manner and order of priority: a. An amount as appropriated by the general assembly to the department shall be allocated to the director and program manager for implementation, support, and maintenance of the functions of the director and program manager and to employ the auditor of state to perform an annual audit of the 911 emergency communications fund. b. The program manager shall allocate to each joint 911 service board and to the department of public safety a minimum of $1,000 per calendar quarter for each public safety answering point (PSAP)PSAP within the service area of the department of public safety or joint 911 service board that has submitted an annual written request to the program manager. The written request shall be made with the Request for Wireless 911 Funds form contained in the Wireless NG911 Implementation and Operations Plan. The request is due to the program manager by May 15, or the next business day, of each year. (1) The amount allocated under paragraph 10.9(3)“b” shall be 60 percent of the total amount of surcharge generated per calendar quarter. The minimum amount allocated to the department of public safety and the joint 911 board shall be $1,000 per PSAP operated by the respective authority. (2) Additional funds shall be allocated as follows:

Sixty-five percent of the total dollars available for allocation shall be allocated in proportion to the square miles of the 911 service area to the total square miles in this state.
Thirty-five percent of the total dollars available for allocation shall be allocated in proportion to the wireless 911 calls taken at the PSAP in the 911 service area to the total number of wireless 911 calls originating in this state.

(3) The funds allocated in paragraph 10.9(3)“b” shall be used by the PSAPs for costs related to the receipt and disposition of 911 calls. c. The program manager shall allocate 10 percent of the total amount of surcharge generated per calendar quarter to wireless carriers to recover their costs to deliver wireless E911 phase I services as defined in the Federal Communications Commission (FCC) Docket 94-102 and further defined in the FCC’s letter to King County, Washington, dated May 7, 2001. If this allocation is insufficient to reimburse all wireless carriers for the wireless service provider’s eligible expenses, the program manager shall allocate a prorated amount to each wireless carrier equal to the percentage of the provider’s eligible expenses as compared to the total eligible expenses for all wireless carriers for the calendar quarter during which expenses were submitted. When prorated expenses are paid, the remaining unpaid expenses shall no longer be eligible for payment under paragraph 10.9(3)“c.” This allocation is for the period beginning July 1, 2013, and ending June 30, 2026. d. The program manager shall reimburse communications service providers on a calendar quarter basis for carriers’ eligible expenses for transport costs between the wireless selective router and the PSAPs related to the delivery of wireless E911 phase 1 services and the integration of an internet protocol-enabled next generation 911 network as specified in the Wireless NG911 Implementation and Operations Plan. The program manager may also provide grants to the joint 911 service boards and the department of public safety for the purpose of developing and maintaining GIS data to be used in support of the next generation 911 network. The program manager shall provide a notice of availability of such grants and provide guidance and application forms on the department’s Web site, www.homelandsecurity.iowa.gov. e. d. 911 call delivery costs and GIS grants. (1) The program manager shall reimburse wireline carriersnext generation 911 network service providers, 911 call processing equipment providers, 911 call transport providers, and third-party 911 automatic location information database providers on a quarterly basis for the costs of maintaining and upgrading the next generation 911 components and functionalities beyond the input to the 911 selective router, including the 911 selective routernetwork functionality, 911 call processing equipment, 911 call transport from the next generation 911 network to public safety answering points and from the wireless originating service provider network to the next generation 911 network, and the automatic location information database. (2) The program manager may also provide grants to joint 911 service boards and the department of public safety for the purpose of developing and maintaining GIS data to be used in support of the next generation 911 network. The program manager shall provide guidelines, application forms, and notice of the availability of such grants on the department’s website, www.homelandsecurity.iowa.gov. f. e. The department may, in a reserve account established within the 911 emergency communications fund, credit each fiscal year an amount of up to 12½ percent of the annual emergency communications service surcharge collected pursuant to rule 605—10.8(34A) and the prepaid wireless 911 surcharge collected pursuant to rule 605—10.17(34A). However, the moneys contained in such reserve account shall not exceed 12½ percent of the total surcharges collected for each fiscal year. Moneys credited to the reserve account shall only be used by the department for the purpose of repairing or replacing equipment in the event of a catastrophic equipment failure, as determined by the director. g. f. If moneys remain in the fund after all obligations are fully paid under paragraphs 10.9(3)“a,” “b,” “c,” “d,” and“e,” and“f,” an amount of up to $7,000,000 shall, for the fiscal year beginning July 1, 2017, and ending June 30, 2018,remaining funds shall be expended and distributed in the following priority order: (1) The director, in consultation with the program manager and the 911 communications council, may provide grants for nonrecurring costs to the department of public safety or joint 911 service board operating a PSAP agreeing to consolidate. For purposes of this subparagraph, “consolidate” means the consolidation of all PSAP systems, functions, 911 service areas, and physical facilities of two or more PSAPs, resulting in responsibility by the consolidated PSAP for all call answering and dispatch functions for the combined 911 service area. Such a grant to a PSAP shall not exceed one-half of the projected cost of consolidation, or $200,000, whichever is less. The department of public safety or joint 911 service board wishing to apply for such funds shall complete anthe Intent to Consolidate Application form prior to December 1, 2017. The form can be found on the department’s Web sitewebsite, www.homelandsecurity.iowa.gov. Such applications shall provide a detailed consolidation plan and demonstrate that the proposed project shall be completed prior to June 30, 2018timeline. (2) The program manager, in consultation with the 911 communications council, shall allocate an amount, not to exceed $100,000 per fiscal year, for development of public awareness and educational programs related to the use of 911 by the public; for educational programs for personnel responsible for the maintenance, operation, and upgrading of local 911 systems; and for the expenses of members of the 911 communications council for travel, monthly meetings, and training, provided, however, that the members have not received reimbursement funds for such expenses from another source. (3) The program manager shall allocate an equal amount of moneys to each PSAP for the following costs:

Costs related to the receipt and disposition of 911 calls, including hardware and software for an Internet protocol-enabled next generation 911 network as specified in the Wireless NG911Network Implementation and Operations Plan.
Local costs related to access the statewide interoperable communications system pursuant to Iowa Code section 29C.23.

(4) Any moneys remaining in the fund at the end of each fiscal year shall not revert to the general fund of the state but shall remain available for the purposes of the fund. 10.9(4) Payments to local communications service providers and wireless service providersnext generation 911 network service providers, 911 call processing equipment providers, 911 call transport providers, and third-party 911 automatic location identification database providers shall be made quarterly, based on original, itemized claims or invoices presented within 20 days of the end of the calendar quarter. Claims or invoices not submitted within 20 days of the end of the calendar quarter are not eligible for reimbursement and may not be included in future claims and invoices. Payments to providers shall be made in accordance with these rules and the State Accounting Policy and Procedures Manual. 10.9(5) Local communications service providersNext generation 911 network service providers, 911 call processing equipment providers, 911 call transport providers, and third-party 911 automatic location identification database providers shall be reimbursed for only those items and services that are defined as eligible in the Wireless NG911Network Implementation and Operations Plan and when initiation of service has been ordered and authorized by the 911 program manager. 10.9(6) If it is found that an overpayment has been made to an entity, the 911 program manager shall attempt recovery of the debt from the entity by certified letter. Due diligence shall be documented and retained at the homeland security and emergency management department. If resolution of the debt does not occur and the debt is at least $50, the homeland security and emergency management department will then utilize the income offset program through the department of revenue. Until resolution of the debt has occurred, the homeland security and emergency management department may withhold future payments to the entity.

ITEM 6. Amend rule 605—10.13(34A) as follows:

605—10.13(34A) Limitations on use of funds. Surcharge moneys in the 911 service fund may be used to pay recurring and nonrecurring costs including, but not limited to, network equipment911 call processing equipment, internet and telephone access, software, database, addressing, initial training, and other start-up, capital, and ongoing expenditures. 911 surcharge moneys shall be used only to pay costs directly attributable to the provision of 911 telephone systems and services and may include costs directly attributable to the receipt and disposition of the 911 call. [Filed 6/13/18, effective 8/8/18][Published 7/4/18]Editor’s Note: For replacement pages for IAC, see IAC Supplement 7/4/18.ARC 3871CHuman Services Department[441]Adopted and Filed

Rule making related to filing and withdrawal of appeals

The Human Services Department hereby amends Chapter 7, “Appeals and Hearings,” Iowa Administrative Code.Legal Authority for Rule Making This rule making is adopted under the authority provided in Iowa Code section 217.6.State or Federal Law Implemented This rule making implements, in whole or in part, Iowa Code section 217.6.Purpose and Summary Federal regulations allow providers and authorized representatives to file an appeal on behalf of a Medicaid member for managed care appeals when the member has given the member’s express written consent. These amendments implement the use of Form 470-5526, Authorized Representative for Managed Care Appeals, to obtain the member’s consent. These amendments also allow child abuse and dependent adult abuse appeals to be withdrawn on the record before an administrative law judge or in writing and signed by the appellant or the appellant’s legal counsel. Previously, withdrawal requests could only be made in writing. This change provides better access to due process for the Department’s clients. Federal regulations allow assistance to continue for managed care organization health care services when certain criteria are met. Currently, rule 441—7.9(17A) indicates that assistance only continues if it is for the original period covered by the original authorization. The first use of the term “original” in the rule is a duplication, and it is being removed for clarification purposes.Public Comment and Changes to Rule Making Notice of Intended Action for this rule making was published in the Iowa Administrative Bulletin on May 9, 2018, as ARC 3783C. The Department received comments from one respondent during the public comment period. A summary of the comments and the Department’s response are as follows: Comments: The respondent argued that the proposed change regarding use of Form 470-5526 to obtain the written consent of the Medicaid member for an appeal appears to add barriers to due process and rights to an appeal. The respondent stated that if the form is not returned, then no state fair hearing is granted. The respondent argued that the requirement to use a specific form or no hearing is granted is overly restrictive and requested that the language be changed from “shall” to “may.” The respondent stated that by making this minor change, the concern of adding barriers to a Medicaid member’s due process rights would be alleviated. The respondent also suggested adding language to the proposed rule stating that the Department will notify the provider or authorized representative of any defect related to the absence of the form, provide Form 470-5526 to the provider or authorized representative and provide an opportunity to cure before denying a state fair hearing. The respondent did not have an issue with the use of the form, only with the requirement that Form 470-5526 shall be used, and that if the form is not used, the member’s rights to a state fair hearing will be denied. The respondent also argued that not all Medicaid providers will have access to Form 470-5526 or be aware of the requirement of its use, and that there is no information in the proposed rule regarding how the Department will communicate the required use of Form 470-5526 to Medicaid members or providers and legal representatives. The respondent expressed concern that there will be a sharp decline in Medicaid members proceeding to state fair hearings because of this requirement. Department response: Federal regulations at 42 CFR 438.402(c)(1)(ii) allow a provider or authorized representative to file an appeal on a member’s behalf “with written consent of the enrollee.” There is no requirement in the regulations of how that consent is presented other than to be “in writing,” and this gives each state the flexibility to determine how to obtain consent. Currently, there is no standard protocol for obtaining member consent. It quickly became evident that providers were not appropriately obtaining the member’s consent at the time of the appeal. Providers and authorized representatives have struggled with obtaining member consent. The managed care organizations developed their own form to obtain consent, but the provider or authorized representative often would complete the form and not obtain the member’s consent. Providers or authorized representatives have submitted standard releases, consents to treatment, or authorization to release medical records believing this would document the member’s consent. The Department has also been contacted by providers and authorized representatives requesting a document that can be used to obtain member consent. For these reasons the Department created Form 470-5526. The managed care organizations and the Department will utilize this form to obtain member consent in a consistent manner. Federal regulations have always required written consent from the member. The proposed regulations require the use of the form, which will be available on the Department website. Also, providers and the managed care organizations will be notified of the requirement through an informational provider letter. Because the managed care organization is required to obtain the member’s written consent on Form 470-5526 for the first-level appeal process with the managed care organization, the Department intends to obtain a copy of that consent form from the managed care organization when a state fair hearing request is filed. The respondent was concerned that the use of the form would decrease the number of appeals that were eligible for a state fair hearing. The Department disagrees with this concern. On multiple occasions, the managed care organizations and the Department have had to delay due process rights to members because the member’s consent was not adequately obtained. By adding the requirement that consent be obtained on Form 470-5526, the Department is ensuring the member is truly authorizing the provider or authorized representative to file an appeal on the member’s behalf. If there is an instance where member consent was not obtained by the managed care organization during the first-level appeal process and the provider or authorized representative was not previously given an opportunity to provide member consent, the Department will give the provider or authorized representative this opportunity before a state fair hearing request is denied. The Appeals Section already follows this process and will continue to do so in the future. As this is an internal process, it does not need to be identified in the rules. The Department will not amend the rule making as requested. No changes from the Notice have been made.Adoption of Rule Making This rule making was adopted by the Council on Human Services on June 13, 2018.Fiscal Impact This rule making has no fiscal impact to the State of Iowa. These rules will streamline existing processes and provide better access to due process for the Department’s clients. Jobs Impact After analysis and review of this rule making, no impact on jobs has been found.Waivers These amendments do not include waiver provisions because they confer benefits on those affected and are generally required by federal law that does not allow for waivers. Individuals may request a waiver under the Department’s general rule on exceptions at rule 441—1.8(17A,217).Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rule making by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rule making at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rule making will become effective on August 8, 2018. The following rule-making actions are adopted:

ITEM 1. Amend paragraph 7.2(5)"b" as follows: b. If a provideror authorized representative is acting on behalf of a member by filing this type of appeal, the member’s written consent to appeal must be submittedon Form 470-5526, Authorized Representative for Managed Care Appeals, with the appeal request.If the appeal is filed verbally, the managed care organization or agency is responsible for obtaining the member’s written consent for the provider or authorized representative.

ITEM 2. Amend paragraph 7.5(2)"a" as follows: a. One of the following issues is appealed: (1) The service is no longer available through the department. (2) Repayment of food assistance benefits as a result of trafficking has been requested on Form 470-4179, Notice of Food Assistance Trafficking Debt. (3) Payment for a medical claim has been made in accordance with the Medicaid payment schedule for the service billed. (4) Children have been removed from or placed in a specific foster care setting. (5) Children have not been placed with or have been removed from a preadoptive family. (6) A qualified provider or qualified entity has denied a person presumptive eligibility for Medicaid under 441—subrule 75.1(30), 75.1(40), or 75.1(44). (7) A qualified provider or qualified entity has determined a person to be presumptively eligible for Medicaid under 441—subrule 75.1(30), 75.1(40), or 75.1(44), but presumptive eligibility ends due to the person’s failure to file an application. (8) Notice has been issued from the treasury offset program for a food assistance overpayment. (9) A rate determination for foster group care services has been reviewed under rule 441—152.3(234). (10) The maximum provider rate ceiling has been contested for child care assistance under 441—subrule 170.4(7). (11) The risk pool board has accepted or rejected an application for assistance from the risk pool fund or the tobacco settlement fund risk pool fund in whole or in part under rules 441—25.66(426B) and 441—25.77(78GA,ch1221). (12) The appellant has a complaint about child support recovery matters other than those described in numbered paragraph “5” of the definition of an aggrieved person in rule 441—7.1(17A). This includes collection of an annual fee for child support services as specified in Iowa Code chapter 252B. (13) The appellant has a complaint about a local office employee (when this is the only issue of the appeal). (14) A request for an exception to policy under 441—subrule 1.8(1) has been denied. (15) A final decision from a previous hearing with a presiding officer has been implemented. (16) The issue appealed is not eligible for further hearing based on the doctrine of issue preclusion. (17) The appeal involves patient treatment interventions outlined in the patient handbook of the civil commitment unit for sexual offenders. (18) An MCOA provideror an authorized representative, for a managed care appeal, fails to submit a documentForm 470-5526, Authorized Representative for Managed Care Appeals, providing the member’s approval of the request for appeal. (19) Notice was issued by the exchange regarding determination of eligibility for enrollment in a qualified health plan or for advance payment of the premium tax credit or cost-sharing reductions. (20) Notice has been issued regarding the completion of a family assessment that indicates no determination of child abuse or neglect has been made and no information has been reported to the child abuse registry. (21) Notice has been issued regarding an MCO grievance request. (22) Notice has been issued by an MCO to a provider regarding a claims dispute issue.

ITEM 3. Amend subrule 7.6(2) as follows: 7.6(2) Authorized representation or responsible party. Persons may be represented for purposes of this chapter by an authorized representative or an individual,or organization, or provider recognized by the department as acting responsibly for an applicant or beneficiary pursuant to policy governing a particular program (hereinafter referred to as a “responsible party”), unless otherwise specified by statute or federal regulations. a. The designation of an authorized representative must be in writing and include the signature of the person designating the authorized representative.Medicaid members may appoint an authorized representative or provider to act on their behalf during the appeals process regarding an adverse benefit determination made by a managed care organization by signing Form 470-5526, Authorized Representative for Managed Care Appeals. Legal documentation of authority to act on behalf of a person, such as a court order establishing legal guardianship or a power of attorney, shall serve in place of a signed designation by the person. b. An authorized representative or responsible party must agree to maintain, or be legally bound to maintain, the confidentiality of any information regarding an applicant or beneficiary provided by the department. c. A provider or staff member or volunteer of an organization serving as an authorized representative or responsible party must sign an agreementaffirm that such provider, staff member or volunteer will adhere to the regulations in Part 431, Subpart F, of 42 CFR Chapter IV and in 45 CFR 155.260(f) (relating to confidentiality of information), § 447.10 of 42 CFR Chapter IV (relating to the prohibition against reassignment of provider claims as appropriate for a health facility or an organization acting on the facility’s behalf), as well as other relevant state and federal laws concerning conflict of interest and confidentiality of information. d. An authorized representative or responsible party may file an appeal on the appellant’s behalf, receive copies of appeal correspondence, and act on behalf of the appellant in all other matters regarding the appeal. e. The authorized representative or responsible party is responsible for fulfilling all responsibilities encompassed within the scope of the authorized representation to the same extent as the individual the authorized representative or responsible party represents. f. The power to act as an authorized representative is valid until the appellant modifies the authorization or notifies the department that the representative is no longer authorized to act on the appellant’s behalf, or the authorized representative informs the agency that the authorized representative is no longer acting in such capacity, or there is a change in the legal authority upon which the individual’s or organization’s authority was based. Such notice must be in writing and include the appellant’s, authorized representative’s or responsible party’s signature as appropriate. g. Designations of authorized representatives, legal documentation of authority to act on behalf of a person, and modifications or terminations of designations or legal authority may be submitted online via the department’s Web site, by mail, by electronic mail, by facsimile transmission or in person. h. For purposes of this rule, the department shall accept electronic, including telephonically recorded, signatures and handwritten signatures transmitted by facsimile or other electronic transmission. i. h. Designations of authorized representatives, legal documentation of authority to act on behalf of a person, and modifications or terminations of designations or legal authority previously submitted to the department that comply with the requirements of this rule will continue to apply for purposes of appeals, consistent with their terms.

ITEM 4. Amend paragraph 7.8(1)"e" as follows: e. A Medicaid provideror an authorized representative requesting a hearing on behalf of the memberregarding an adverse benefit determination made by a managed care organization must have the prior express written consent of the member or the member’s lawfully appointed guardian, except when appealing a medical assistance eligibility determinationon Form 470-5526, Authorized Representative for Managed Care Appeals.Legal documentation of authority to act on behalf of a person, such as a court order establishing legal guardianship or a power of attorney, shall serve in place of a signed designation by the person. No hearing will be granted unless the provider submits a document providing the member’s consent to the request for a hearing.

ITEM 5. Amend subrule 7.8(8) as follows: 7.8(8) Withdrawal. When the appellant desires to voluntarily withdraw an appeal, the worker, the presiding officer, or the appeals section shall accept a request from the appellant to withdraw the appeal by telephone, in writing or in person. A written request may be submitted in person, by mail or through an electronic delivery method, such as electronic mail, submission of an online form, or facsimile. The appellant may use Form 470-0492 or 470-0492(S), Request for Withdrawal of Appeal, for this purpose. For child abuse and dependent adult abuse appeals, the request to withdraw an appeal must be madeon the record before an administrative law judge or in writing and signed by the appellant or the appellant’s legal counsel.

ITEM 6. Amend subparagraph 7.9(5)"a" as follows: (4) The original period covered by the original authorization has not expired; and

ITEM 7. Amend paragraph 7.9(6)"d" as follows: d. The original period covered by the original authorization has expired; or [Filed 6/13/18, effective 8/8/18][Published 7/4/18]Editor’s Note: For replacement pages for IAC, see IAC Supplement 7/4/18.ARC 3872CHuman Services Department[441]Adopted and Filed

Rule making related to assessment levels for nursing facilities

The Human Services Department hereby amends Chapter 36, “Facility Assessments,” Iowa Administrative Code.Legal Authority for Rule Making This rule making is adopted under the authority provided in Iowa Code section 249A.4.State or Federal Law Implemented This rule making implements, in whole or in part, Iowa Code section 249A.4 and 2015 Iowa Acts, chapter 137 (Senate File 505).Purpose and Summary This rule making amends the assessment level for nursing facilities effective July 1, 2015. The assessment level was changed at the rebase of nursing facility costs on July 1, 2015. Providers were notified of the assessment level with Information Letter 1610 dated February 3, 2016. Providers have been remitting the amounts. This rule making ensures that the rules reflect current practice.Public Comment and Changes to Rule Making Notice of Intended Action for this rule making was published in the Iowa Administrative Bulletin on May 9, 2018, as ARC 3785C. The Department received no comments during the public comment period. No changes from the Notice have been made.Adoption of Rule Making This rule making was adopted by the Council on Human Services on June 13, 2018.Fiscal Impact This rule making has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rule making, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rule making would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to rule 441—1.8(17A,217).Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rule making by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rule making at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rule making will become effective on September 1, 2018. The following rule-making action is adopted:

ITEM 1. Amend subrule 36.6(2) as follows: 36.6(2) Assessment level. Effective July 1, 2012, the assessment level for each nursing facility shall be determined on an annual basis and shall be effective for the state fiscal year. a. Effective July 1, 20112015, nursing facilities with 46 or fewer licensed beds are required to pay a quality assurance assessment of $1$1.36 per non-Medicare patient day. Effective with assessment for the state fiscal year beginning July 1, 2012, the number of licensed beds on file with the department of inspections and appeals as of May 1 of each year shall be used to determine the assessment level for the following state fiscal year. b. NursingEffective July 1, 2015, nursing facilities designated as continuing care retirement centers (CCRCs) by the insurance division of the Iowa department of commerce are required to pay a quality assurance assessment of $1$1.36 per non-Medicare patient day. Effective with assessment for the state fiscal year beginning July 1, 2012, continuing care retirement center designations as of May 1 of each year shall be used to determine the assessment level for the following state fiscal year. c. NursingEffective July 1, 2015, nursing facilities with annual Iowa Medicaid patient days of 26,500 or more are required to pay a quality assurance assessment of $1$1.36 per non-Medicare patient day. Effective with assessment for the state fiscal year beginning July 1, 2012, the annual number of Iowa Medicaid patient days reported in the most current cost report submitted to the Iowa Medicaid enterprise as of May 1 of each year shall be used to determine the assessment level for the following state fiscal year. d. AllEffective July 1, 2015, all other nursing facilities are required to pay a quality assurance assessment of $5.26$7.13 per non-Medicare patient day. [Filed 6/13/18, effective 9/1/18][Published 7/4/18]Editor’s Note: For replacement pages for IAC, see IAC Supplement 7/4/18.ARC 3873CHuman Services Department[441]Adopted and Filed

Rule making related to Medicaid for employed people with disabilities

ITEM 1. Amend subparagraph 75.1(39)"b" as follows: (3) Premiums shall be assessed as follows: IF THE INCOME OF THE APPLICANT IS ABOVE: THE MONTHLYPREMIUM IS:150% of Federal Poverty Level $34165% of Federal Poverty Level $47180% of Federal Poverty Level $56200% of Federal Poverty Level $66225% of Federal Poverty Level $77250% of Federal Poverty Level $89300% of Federal Poverty Level $112350% of Federal Poverty Level $137400% of Federal Poverty Level $161450% of Federal Poverty Level $186550% of Federal Poverty Level $232650% of Federal Poverty Level $280750% of Federal Poverty Level $329850% of Federal Poverty Level $3891000% of Federal Poverty Level $4671150% of Federal Poverty Level $5471300% of Federal Poverty Level $6311480% of Federal Poverty Level $7291530% of Federal Poverty Level $7461550% of Federal Poverty Level$7681590% of Federal Poverty Level $7781660% of Federal Poverty Level$8121740% of Federal Poverty Level$852 [Filed 6/13/18, effective 8/8/18][Published 7/4/18]Editor’s Note: For replacement pages for IAC, see IAC Supplement 7/4/18.ARC 3874CHuman Services Department[441]Adopted and Filed

Rule making related to settings for home- and community-based services

The Human Services Department 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 83, “Medicaid Waiver Services,” Iowa Administrative Code.Legal Authority for Rule Making This rule making is adopted under the authority provided in Iowa Code section 249A.4.State or Federal Law Implemented This rule making implements, in whole or in part, Iowa Code section 249A.4, 42 CFR Section 441.301(c), and 42 CFR Section 441.710.Purpose and Summary The Centers for Medicare and Medicaid Services (CMS) has issued regulations that define the residential and nonresidential settings in which it is permissible for states to provide and pay for Medicaid home- and community-based services (HCBS). The purpose of the CMS regulations is to ensure that individuals receive Medicaid HCBS in settings that are integrated in and support full access to the greater community. These regulations also aim to ensure that individuals have a free choice of where they live and who provides services to them, as well as to ensure that individual rights are not restricted. While providing Medicaid HCBS in institutional settings has never been allowed, these new regulations clarify that HCBS may not be provided in settings that have the qualities of an institution. The federal regulations were effective March 17, 2014, with an initial five-year transition time period for all HCBS providers to be in full compliance with the regulations or lose federal HCBS funding for services provided in the setting. Due to the complexity of the changes required for full compliance, CMS extended the implementation time period by three years on May 9, 2017. The State has until March 17, 2022, to demonstrate full compliance with the HCBS settings regulations. As part of a statewide transition plan developed to transition HCBS services to meet the federal regulations, CMS required the State of Iowa to complete a full assessment of the administrative rules in the Iowa Administrative Code for compliance with the federal regulations. These amendments make changes to the Department’s administrative rules necessary for full compliance with federal regulations as cited above.Public Comment and Changes to Rule Making Notice of Intended Action for this rule making was published in the Iowa Administrative Bulletin on May 9, 2018, as ARC 3784C. The Department received comments from two respondents. A summary of the comments and the Department’s responses are as follows: Comment 1: The respondent stated that the proposed changes are based on 42 CFR Section 441.301(c) and 42 CFR Section 441.710 and that those sections both require that the following conditions be met in any HCBS setting that is a provider-owned or controlled residential setting: The unit or dwelling is a specific physical space that can be owned, rented, or occupied under a legally enforceable agreement by the individual receiving services, and the individual has, at a minimum, the same responsibilities and protections from eviction that tenants have under the landlord/tenant law of the state, county, city, or other designated entity. For the settings in which landlord tenant laws do not apply, the state must ensure that a lease, residency agreement or other form of written agreement will be in place for each HCBS participant and that the document provides protections that address eviction processes and appeals comparable to those provided under the jurisdiction’s landlord tenant law. The respondent stated that this language is not reflected in the Department’s proposed regulations and that these protections are important to individuals receiving HCBS waiver services in provider-owned or controlled residential settings because these settings do not afford protections against involuntary discharge in the way that nursing homes do, for example. The respondent requested that the language and concepts from these CFR regulations with regard to protections against eviction be reflected in the proposed regulation. Department response 1: The Department agrees with the respondent’s comment and has amended the definition of “Provider-owned or controlled setting” to be in compliance with the federal references. The following sentences have been added to this definition found in Item 2: “The unit or dwelling is a specific physical space that can be owned, rented, or occupied under a legally enforceable agreement by the member receiving services, and the member has, at a minimum, the same responsibilities and protections from eviction that tenants have under the landlord/tenant law of the state, county, city, or other designated entity. For the settings in which landlord tenant laws do not apply, the state must ensure that a lease, residency agreement or other form of written agreement will be in place for each HCBS member and that the document provides protections that address eviction processes and appeals comparable to those provided under the jurisdiction’s landlord tenant law.” Comment 2: The respondent identified issues with what the Department terms the “HCBS settings rule,” new subrule 77.25(5), found in Item 4. Implementation of the settings rule forbids HCBS settings from being institutional in nature or located in the same building, on the grounds of, or adjacent to entities that are institutional in nature, such as nursing facilities and hospitals. The respondent fears that the HCBS settings rule may restrict, instead of expand, certain HCBS programs. In addition, the respondent stated that the settings rule may have an impact on elderly waiver recipients’ ability to receive services. Finally, the respondent stated that the purchase of a new building or the buying of a new location for services to meet the settings rule is prohibitive. The respondent asked that further guidance be put into this rule making to give providers more clarity in the site-specific review process. Department response 2: The CMS states that the intent of the HCBS settings rule is to ensure that members accessing HCBS services are receiving those services in integrated community settings and not in institutional settings or settings presumed to be institutional in nature. Settings that are presumed to be institutional are not prohibited from providing HCBS services, but must take additional steps to ensure that the settings meet the intent of the settings rule. The Department believes that the HCBS settings rule in the rule making give all residential and nonresidential providers the criteria needed for compliance with the HCBS settings. Due to the diversity of settings where services from each of the seven HCBS waivers and state plan habilitation services are provided in the state, the rules in the Iowa Administrative Code cannot detail the specifics needed for compliance in individual provider settings. All settings where residential and nonresidential services are provided require oversight by the HCBS Quality Oversight Unit. The Quality Oversight Unit uses the Provider Self-Assessment as the foundation of HCBS settings compliance. The Self-Assessment is used by a provider and the assigned HCBS Specialist to look at the provider-specific setting(s) and review for compliance with the rules. The HCBS Specialist works with the provider on compliance within individual settings and is available to provide technical assistance as needed. As such, the Department has not made any changes to the HCBS settings rule based on the respondent’s comments and will continue to use the HCBS Self-Assessment and Quality Oversight review process to work with providers on individual setting compliance issues. The words “of access” were added to Items 12 and 16 for consistency throughout the rule making.Adoption of Rule Making This rule making was adopted by the Council on Human Services on June 13, 2018.Fiscal Impact This rule making’s fiscal impact to the State of Iowa cannot be determined. Issues with a specific provider setting or services that do not meet the settings guidelines would cause cost increases. These increases could be due to a member’s change in services, such as a switch to supported employment, and to changes in staffing ratios within the services. The settings rules will also require that more services be provided in community-based settings. There will be increased provider costs involving transportation and smaller staff-to-member ratios when providers take members into the community with some type of regularity. CMS did not offer any increase in rates for services in conjunction with the new settings requirements. It is also difficult to quantify the number of members affected or how soon cost increases will be realized. Therefore, the fiscal impact cannot be determined. Jobs Impact After analysis and review of this rule making, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rule making would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to rule 441—1.8(17A,217).Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rule making by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rule making at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rule making will become effective on August 8, 2018. The following rule-making actions are adopted:

ITEM 1. Amend rule 441—77.25(249A), introductory paragraph, as follows:

441—77.25(249A) Home- and community-based habilitation services. To be eligible to participate in the Medicaid program as an approved provider of home- and community-based habilitation services, a provider shall meet the general requirements in subrules 77.25(2), 77.25(3), and 77.25(4), and 77.25(5) and shall meet the requirements in the subrules applicable to the individual services being provided.

ITEM 2. Adopt the following new definition of “Provider-owned or controlled setting” in subrule 77.25(1): "Provider-owned or controlled setting" means a setting where the HCBS provider owns the property where the member resides, leases the property from a third party, or has a direct or indirect financial relationship with the property owner that impacts either the care provided to or the financial conditions applicable to the member. The unit or dwelling is a specific physical space that can be owned, rented, or occupied under a legally enforceable agreement by the member receiving services, and the member has, at a minimum, the same responsibilities and protections from eviction that tenants have under the landlord/tenant law of the state, county, city, or other designated entity. For the settings in which landlord tenant laws do not apply, the state must ensure that a lease, residency agreement or other form of written agreement will be in place for each HCBS member and that the document provides protections that address eviction processes and appeals comparable to those provided under the jurisdiction’s landlord tenant law.

ITEM 3. Renumber subrules 77.25(5) to 77.25(9) as 77.25(6) to 77.25(10).

ITEM 4. Adopt the following new subrule 77.25(5): 77.25(5) Residential and nonresidential settings. Effective March 17, 2022, all home- and community-based services (HCBS), whether residential or nonresidential, shall be provided in integrated, community-based settings that support full access of individuals receiving Medicaid HCBS to the greater community, including opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources, and receive services in the community, to the same degree of access as individuals not receiving Medicaid HCBS. Settings shall optimize individual initiative, autonomy, and independence in making life choices, including but not limited to daily activities, physical environment, and with whom to interact. a. Nursing facilities, institutions for mental diseases, intermediate care facilities for persons with an intellectual disability, and hospitals are not considered integrated, community-based settings. b. Any HCBS setting that is located in a building that is also a publicly or privately operated facility, identified in paragraph 77.25(5)“a,” that provides inpatient treatment or in a building on the grounds of, or immediately adjacent to, a public institution, identified in paragraph 77.25(5)“a,” or any setting that has the effect of isolating members receiving Medicaid HCBS from the broader community will be presumed to be a setting that has the qualities of an institution unless the department conducts a site-specific review and determines otherwise. c. Residential services may be provided in provider-owned or controlled settings. In provider-owned or controlled residential settings: (1) The member selects the setting from among setting options, including non-disability-specific settings and an option for a private unit in a residential setting. (2) The setting options are identified and documented in the person-centered service plan and are based on the member’s needs, preferences, and resources available for room and board. (3) Members have choices regarding services and supports received and who provides them. (4) Members are assured the rights of privacy, dignity, respect, and freedom from coercion and undue restraint. (5) Services and supports shall optimize, but not regiment, individual initiative, autonomy, and independence in making life choices, including but not limited to daily activities, physical environment, and with whom to interact. (6) Each member shall be afforded privacy in the member’s sleeping and living unit. Living unit entrance doors and bedroom doors may be locked by the member, and only appropriate staff shall have keys. Staff access to keys must be identified in the member’s person-centered plan. (7) Members shall have a choice of roommates in that setting. (8) Members shall have the freedom to furnish and decorate their sleeping or living areas as desired as permitted by any operative lease or other agreement. (9) Members shall have the freedom and support to control their own schedules and activities and shall have access to food at any time. (10) Members may have visitors of their choosing at any time. (11) The setting shall be physically accessible to the member.

ITEM 5. Amend rule 441—77.30(249A), introductory paragraph, as follows:

441—77.30(249A) HCBS health and disability waiver service providers. HCBS health and disability waiver services shall be rendered by a person who is at least 16 years old (except as otherwise provided in this rule) and is not the spouse of the member served or the parent or stepparent of a member aged 17 or under. People who are 16 or 17 years old must be employed and supervised by an enrolled HCBS provider unless they are employed to provide self-directed personal care services through the consumer choices option. A person hired for self-directed personal care services need not be supervised by an enrolled HCBS provider. A provider hired through the consumer choices option for independent support brokerage, self-directed personal care, individual-directed goods and services, or self-directed community support and employment is not required to enroll as a Medicaid provider. The following providers shall be eligible to participate in the Medicaid HCBS health and disability waiver program if they meet the standards in subrule 77.30(18)and the integrated, community-based settings standards in subrule 77.25(5) and also meet the standards set forth below for the service to be provided:

ITEM 6. Amend rule 441—77.33(249A), introductory paragraph, as follows:

441—77.33(249A) HCBS elderly waiver service providers. HCBS elderly waiver services shall be rendered by a person who is at least 16 years old (except as otherwise provided in this rule) and is not the spouse of the consumer served or the parent or stepparent of a consumer aged 17 or under. People who are 16 or 17 years old must be employed and supervised by an enrolled HCBS provider unless they are employed to provide self-directed personal care services through the consumer choices option. A person hired for self-directed personal care services need not be supervised by an enrolled HCBS provider. A person hired through the consumer choices option for independent support brokerage, self-directed personal care, individual-directed goods and services, or self-directed community support and employment is not required to enroll as a Medicaid provider. The following providers shall be eligible to participate in the Medicaid HCBS elderly waiver program if they meet the standards in subrule 77.33(22)and the integrated, community-based settings standards in subrule 77.25(5) and also meet the standards set forth below for the service to be provided:

ITEM 7. Amend rule 441—77.34(249A), introductory paragraph, as follows:

441—77.34(249A) HCBS AIDS/HIV waiver service providers. HCBS AIDS/HIV waiver services shall be rendered by a person who is at least 16 years old (except as otherwise provided in this rule) and is not the spouse of the consumer served or the parent or stepparent of a consumer aged 17 or under. People who are 16 or 17 years old must be employed and supervised by an enrolled HCBS provider unless they are employed to provide self-directed personal care services through the consumer choices option. A person hired for self-directed personal care services need not be supervised by an enrolled HCBS provider. A person hired through the consumer choices option for independent support brokerage, self-directed personal care, individual-directed goods and services, or self-directed community support and employment is not required to enroll as a Medicaid provider. The following providers shall be eligible to participate in the Medicaid HCBS AIDS/HIV waiver program if they meet the standards in subrule 77.34(14)and the integrated, community-based settings standards in subrule 77.25(5) and also meet the standards set forth below for the service to be provided:

ITEM 8. Amend rule 441—77.37(249A) as follows:

441—77.37(249A) Home- and community-based services intellectual disability waiver service providers. Providers shall be eligible to participate in the Medicaid HCBS intellectual disability waiver program if they meet the requirements in this rule and the subrules applicable to the individual service.The standards in subrule 77.37(1) apply only to providers of supported employment, respite providers certified according to subparagraph 77.37(15)“a”(8), and providers of supported community living services that are not residential-based. The standards and certification processes in subrules 77.37(2) through 77.37(7) and 77.37(9) through 77.37(12) apply only to supported employment providers and non-residential-based supported community living providers.The requirements in subrule 77.37(13) apply to all providers. Exception: A person hired through the consumer choices option for independent support brokerage, self-directed personal care, individual-directed goods and services, or self-directed community support and employment is not required to enroll as a Medicaid provider and is not subject to the review requirements in subrule 77.37(13). Also, services must be rendered by a person who is at least 16 years old (except as otherwise provided in this rule) and is not the spouse of the consumer served or the parent or stepparent of a consumer aged 17 or under. People who are 16 or 17 years old must be employed and supervised by an enrolled HCBS provider unless they are employed to provide self-directed personal care services through the consumer choices option. A person hired for self-directed personal care services need not be supervised by an enrolled HCBS provider. Consumer-directed attendant care and interim medical monitoring and treatment providers must be at least 18 years of age.The integrated, community-based settings standards in subrule 77.25(5) apply to all HCBS intellectual disability waiver service providers. 77.37(1) Organizational standards (Outcome 1). Organizational outcome-based standards for home- and community-based services intellectual disability providers are as follows: a. The organization demonstrates the provision and oversight of high-quality supports and services to consumers. b. The organization demonstrates a defined mission commensurate with consumer’s needs, desires, and abilities. c. The organization establishes and maintains fiscal accountability. d. The organization has qualified staff commensurate with the needs of the consumers they serve. These staff demonstrate competency in performing duties and in all interactions with clients. e. The organization provides needed training and supports to its staff. This training includes at a minimum: (1) Consumer rights. (2) Confidentiality. (3) Provision of consumer medication. (4) Identification and reporting of child and dependent adult abuse. (5) Individual consumer support needs. f. The organization has a systematic, organizationwide, planned approach to designing, measuring, evaluating, and improving the level of its performance. The organization: (1) Measures and assesses organizational activities and services annually. (2) Gathers information from consumers, family members, and staff. (3) Conducts an internal review of consumer service records, including all major and minor incident reports according to subrule 77.37(8). (4) Tracks incident data and analyzes trends annually to assess the health and safety of consumers served by the organization. (5) Identifies areas in need of improvement. (6) Develops a plan to address the areas in need of improvement. (7) Implements the plan and documents the results. g. Consumers and their legal representatives have the right to appeal the provider’s implementation of the 20 outcomes, or staff or contractual person’s action which affects the consumer. The provider shall distribute the policies for consumer appeals and procedures to consumers. h. The provider shall have written policies and procedures and a staff training program for the identification and reporting of child and dependent adult abuse to the department pursuant to 441—Chapters 175 and 176. i. The governing body has an active role in the administration of the agency. j. The governing body receives and uses input from a wide range of local community interests and consumer representation and provides oversight that ensures the provision of high-quality supports and services to consumers. 77.37(2) Rights and dignity. Outcome-based standards for rights and dignity are as follows: a. (Outcome 2) Consumers are valued. b. (Outcome 3) Consumers live in positive environments. c. (Outcome 4) Consumers work in positive environments. d. (Outcome 5) Consumers exercise their rights and responsibilities. e. (Outcome 6) Consumers have privacy. f. (Outcome 7) When there is a need, consumers have support to exercise and safeguard their rights. g. (Outcome 8) Consumers decide which personal information is shared and with whom. h. (Outcome 9) Consumers make informed choices about where they work. i. (Outcome 10) Consumers make informed choices on how they spend their free time. j. (Outcome 11) Consumers make informed choices about where and with whom they live. k. (Outcome 12) Consumers choose their daily routine. l. (Outcome 13) Consumers are a part of community life and perform varied social roles. m. (Outcome 14) Consumers have a social network and varied relationships. n. (Outcome 15) Consumers develop and accomplish personal goals. o. (Outcome 16) Management of consumers’ money is addressed on an individualized basis. p. (Outcome 17) Consumers maintain good health. q. (Outcome 18) The consumer’s living environment is reasonably safe in the consumer’s home and community. r. (Outcome 19) The consumer’s desire for intimacy is respected and supported. s. (Outcome 20) Consumers have an impact on the services they receive. 77.37(3) Contracts with consumers. The provider shall have written procedures which provide for the establishment of an agreement between the consumer and the provider. a. The agreement shall define the responsibilities of the provider and the consumer, the rights of the consumer, the services to be provided to the consumer by the provider, all room and board and copay fees to be charged to the consumer and the sources of payment. b. Contracts shall be reviewed at least annually. 77.37(4) The right to appeal. Consumers and their legal representatives have the right to appeal the provider’s application of policies or procedures, or any staff or contractual person’s action which affects the consumer. The provider shall distribute the policies for consumer appeals and procedures to consumers. 77.37(5) Storage and provision of medication. If the provider stores, handles, prescribes, dispenses or administers prescription or over-the-counter medications, the provider shall develop procedures for the storage, handling, prescribing, dispensing or administration of medication. For controlled substances, procedures shall be in accordance with department of inspections and appeals rule 481—63.18(135).If the provider has a physician on staff or under contract, the physician shall review and document the provider’s prescribed medication regime at least annually in accordance with current medical practice. 77.37(6) Research. If the provider conducts research involving human subjects, the provider shall have written policies and procedures for research which ensure the rights of consumers and staff. 77.37(7) Abuse reporting requirements. The provider shall have written policies and procedures and a staff training program for the identification and reporting of child and dependent adult abuse to the department pursuant to 441—Chapters 175 and 176. 77.37(8) Incident management and reporting. As a condition of participation in the medical assistance program, HCBS intellectual disability waiver service providers must comply with the requirements of Iowa Code sections 232.69 and 235B.3 regarding the reporting of child abuse and dependent adult abuse and with the incident management and reporting requirements in this subrule. Exception: The conditions in this subrule do not apply to providers of goods and services purchased under the consumer choices option or providers of home and vehicle modification, personal emergency response, and transportation. a. Definitions. "Major incident" means an occurrence involving a consumer during service provision that:

Results in a physical injury to or by the consumer that requires a physician’s treatment or admission to a hospital;
Results in the death of any person;
Requires emergency mental health treatment for the consumer;
Requires the intervention of law enforcement;
Requires a report of child abuse pursuant to Iowa Code section 232.69 or a report of dependent adult abuse pursuant to Iowa Code section 235B.3;
Constitutes a prescription medication error or a pattern of medication errors that leads to the outcome in paragraph “1,” “2,” or “3”; or
Involves a consumer’s location being unknown by provider staff who are assigned protective oversight.

"Minor incident" means an occurrence involving a consumer during service provision that is not a major incident and that:

Results in the application of basic first aid;
Results in bruising;
Results in seizure activity;
Results in injury to self, to others, or to property; or
Constitutes a prescription medication error.

b. Reporting procedure for minor incidents.Minor incidents may be reported in any format designated by the provider. When a minor incident occurs or a staff member becomes aware of a minor incident, the staff member involved shall submit the completed incident report to the staff member’s supervisor within 72 hours of the incident. The completed report shall be maintained in a centralized file with a notation in the consumer’s file. c. Reporting procedure for major incidents.When a major incident occurs or a staff member becomes aware of a major incident: (1) The staff member involved shall notify the following persons of the incident by the end of the next calendar day after the incident:

The staff consumer’s supervisor.
The consumer or the consumer’s legal guardian. Exception: Notification to the consumer is required only if the incident took place outside of the provider’s service provision. Notification to the guardian, if any, is always required.
The consumer’s case manager.

(2) By the end of the next calendar day after the incident, the staff member who observed or first became aware of the incident shall also report as much information as is known about the incident to the member’s managed care organization in the format defined by the managed care organization. If the member is not enrolled with a managed care organization, the staff member shall report the information to the department’s bureau of long-term care either:

By direct data entry into the Iowa Medicaid Provider Access System, or
By faxing or mailing Form 470-4698, Critical Incident Report, according to the directions on the form.

(3) The following information shall be reported:

The name of the consumer involved.
The date and time the incident occurred.
A description of the incident.
The names of all provider staff and others who were present at the time of the incident or who responded after becoming aware of the incident. The confidentiality of other waiver-eligible or non-waiver-eligible consumers who were present must be maintained by the use of initials or other means.
The action that the provider staff took to manage the incident.
The resolution of or follow-up to the incident.
The date the report is made and the handwritten or electronic signature of the person making the report.

(4) Submission of the initial report will generate a workflow in the Individualized Services Information System (ISIS) for follow-up by the case manager. When complete information about the incident is not available at the time of the initial report, the provider must submit follow-up reports until the case manager is satisfied with the incident resolution and follow-up. The completed report shall be maintained in a centralized file with a notation in the consumer’s file. d. Tracking and analysis.The provider shall track incident data and analyze trends to assess the health and safety of consumers served and determine if changes need to be made for service implementation or if staff training is needed to reduce the number or severity of incidents. 77.37(9) Intake, admission, service coordination, discharge, and referral. a. The provider shall have written policies and procedures according to state and federal laws for intake, admission, service coordination, discharge and referral. Service coordination means activities designed to help individuals and families locate, access, and coordinate a network of supports and services that will allow them to live a full life in the community. b. The provider shall ensure the rights of persons applying for services. 77.37(10) Certification process. Reviews of compliance with standards for initial certification and recertification shall be conducted by the department of human services’ bureau of long-term care quality assurance staff. Certification carries no assurance that the approved provider will receive funding. a. Rescinded IAB 9/1/04, effective 11/1/04. b. Rescinded IAB 9/1/04, effective 11/1/04. c. Rescinded IAB 9/1/04, effective 11/1/04. d. The department may request any information from the prospective service provider which is considered pertinent to arriving at a certification decision. This may include, but is not limited to: (1) Current accreditations, evaluations, inspections and reviews by regulatory and licensing agencies and associations. (2) Fiscal capacity of the prospective provider to initiate and operate the specified programs on an ongoing basis. 77.37(11) Initial certification. The department shall review the application and accompanying information to see if the provider has the necessary framework to provide services in accordance with all applicable requirements and standards. a. The department shall make a determination regarding initial certification within 60 days of receipt of the application and notify the provider in writing of the decision unless extended by mutual consent of the parties involved. Providers shall be responsible for notifying the appropriate county and the appropriate central point of coordination of the determination. b. The decision of the department on initial certification of the providers shall be based on all relevant information, including: (1) The application for status as an approved provider according to requirements of rules. (2) A determination of the financial position of the prospective provider in relation to its ability to meet the stated need. (3) The prospective provider’s coordination of service design, development, and application with the applicable region and other interested parties. (4) The prospective provider’s written agreement to work cooperatively with the state, counties and regions to be served by the provider. c. Providers applying for initial certification shall be offered technical assistance. 77.37(12) Period of certification. Provider certification shall become effective on the date identified on the certificate of approval and shall terminate in 270 calendar days, one year, or three calendar years from the month of issue. The renewal of certification shall be contingent upon demonstration of continued compliance with certification requirements. a. Initial certification. Providers eligible for initial certification by the department shall be issued an initial certification for 270 calendar days based on documentation provided. b. Recertification. After the initial certification, the level of certification shall be based on an on-site review unless the provider has been accredited for similar services by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), the Commission on Accreditation of Rehabilitation Facilities (CARF), the Council on Quality and Leadership in Supports for People with Disabilities (The Council), or the Council on Accreditation of Services for Families and Children (COA). The on-site reviews for supported community living and supported employment use interviews with consumers and significant people in the consumer’s life to determine whether or not the 20 individual value-based outcomes set forth in subrules 77.37(1) and 77.37(2) and corresponding processes are present for the consumer. Respite services are required to meet Outcome 1 and participate in satisfaction surveys.Once the outcomes and processes have been determined for all the consumers in the sample, a review team then determines which of the 20 outcomes and processes are present for the provider. A specific outcome is present for the provider when the specific outcome is determined to be present for 75 percent or more of the consumers interviewed. A specific process is present for the provider when the process is determined to be present for 75 percent or more of the consumers interviewed. Since the processes are in the control of the provider and the outcomes are more in the control of the consumer, length of certification will be based more heavily on whether or not the processes are in place to help consumers obtain desired outcomes.An exit conference shall be held with the organization to share preliminary findings of the certification review. A review report shall be written and sent to the provider within 30 calendar days unless the parties mutually agree to extend that time frame.Provider certification shall become effective on the date identified on the Certificate of Approval, Form 470-3410, and shall terminate in 270 calendar days, one year, or three calendar years from the month of issue. The renewal of certification shall be contingent upon demonstration of continued compliance with certification requirements. c. The department may issue four categories of recertification: (1) Three-year certification with excellence. An organization is eligible for certification with excellence if the number of processes present is 18 or higher and the number of outcomes and corresponding processes present together is 12 or higher. Both criteria need to be met to receive three-year certification with excellence. Corrective actions may be required which may be monitored through the assignment of follow-up monitoring either by written report, a plan of corrective actions and improvements, an on-site review, or the provision of technical assistance. (2) Three-year certification with follow-up monitoring. An organization is eligible for this type of certification if the number of processes present is 17 or higher and the number of outcomes and corresponding processes present together are 11 or higher. Both criteria need to be met to receive three-year certification. Corrective actions are required which may be monitored through the assignment of follow-up monitoring either by written report, a plan of corrective actions and improvements, an on-site review, or the provision of technical assistance. (3) One-year certification. An organization is eligible for this type of certification when the number of processes present is 14 or higher and the number of outcomes and processes together is 9 or higher. Both criteria need to be met to receive one-year certification. One-year certification may also be given in lieu of longer certification when previously required corrective actions have not been implemented or completed. Corrective actions are required which may be monitored through the assignment of follow-up monitoring either by written report, a plan of corrective actions and improvements, an on-site review, or the provision of technical assistance. (4) Probational certification. A probational certification may be issued to those providers who cannot meet requirements for a one-year certification. This time period shall be granted to the provider to establish and implement corrective actions and improvement activities. During this time period the department may require monitoring of the implementation of the corrective actions through on-site visits, written reports or technical assistance. Probational certification issued for 270 calendar days shall not be renewed or extended, and shall require a full on-site follow-up review to be completed. The provider shall be required to achieve at least a one-year certification status at the time of the follow-up review in order to maintain certification. d. During the course of the review, if a team member encounters a situation that places a member in immediate jeopardy, the team member shall immediately notify the provider, the department, and other team members. “Immediate jeopardy” refers to circumstances where the life, health, or safety of a member will be severely jeopardized if the circumstances are not immediately corrected. (1) The provider shall correct the situation within 24 to 48 hours. If the situation is not corrected within the prescribed time frame, that portion of the provider’s services that was the subject of the notification shall not be certified. The department shall be notified immediately to discontinue funding for that provider’s service. If a member is in immediate jeopardy, the case manager or department service worker shall notify the county or region in the event the county or region is funding a service that may assist the member in the situation. (2) If this action is appealed and the member, legal guardian, or attorney in fact under a durable power of attorney for health care wants to maintain the provider’s services, funding can be reinstated. At that time the provider shall take appropriate action to ensure the life, health, and safety of the members deemed to be at risk as a result of the provider’s inaction. e. As a mandatory reporter, each team member shall be required to follow appropriate procedure in all cases where a condition reportable to child and adult protective services is observed. f. The department may grant an extension to the period of approval for the following reasons: (1) A delay in the department’s approval decision which is beyond the control of the provider or department. (2) A request for an extension from a provider to permit the provider to prepare and obtain department approval of corrective actions. The department shall establish the length of extensions on a case-by-case basis. g. The department may revoke the provider’s approval at any time for any of the following reasons: (1) Findings of a site visit indicate that the provider has failed to implement the corrective actions submitted pursuant to paragraph 77.37(13)“e.” (2) The provider has failed to provide information requested pursuant to paragraph 77.37(13)“f.” (3) The provider refuses to allow the department to conduct a site visit pursuant to paragraph 77.37(13)“h.” (4) There are instances of noncompliance with the standards which were not identified from information submitted on the application. h. An approved provider shall immediately notify the department, applicable county, or region, the applicable mental health and developmental disabilities planning council, and other interested parties of a decision to withdraw from a home- and community-based services intellectual disability waiver service. i. Following certification, any provider may request technical assistance from the department to bring into conformity those areas found in noncompliance with HCBS requirements. If multiple deficiencies are noted during a review, the department may require that technical assistance be provided to a provider to assist in the implementation of the provider’s corrective actions. Providers may be given technical assistance as needed. j. Appeals. Any adverse action can be appealed by the provider under 441—Chapter 7. 77.37(13) Review of providers. Reviews of compliance with standards as indicated in this chapter shall be conducted by designated members of the HCBS staff. a. This review may include on-site case record audits; review of administrative procedures, clinical practices, personnel records, performance improvement systems and documentation; and interviews with staff, consumers, the board of directors, or others deemed appropriate, consistent with the confidentiality safeguards of state and federal laws. b. A review visit shall be scheduled with the provider with additional reviews conducted at the discretion of the department. c. The on-site review team will consist of designated members of the HCBS staff. d. Following a certification review, the certification review team leader shall submit a copy of the department’s written report of findings to the provider within 30 working days after completion of the certification review. e. The provider shall develop a plan of corrective action, if applicable, identifying completion time frames for each review recommendation. f. Providers required to make corrective actions and improvements shall submit the corrective action and improvement plan to the Bureau of Long-Term Care, 1305 East Walnut Street, Des Moines, Iowa 50319-0114, within 30 working days after the receipt of a report issued as a result of the review team’s visit. The corrective actions may include: specific problem areas cited, corrective actions to be implemented by the provider, dates by which each corrective measure will be completed, and quality assurance and improvement activities to measure and ensure continued compliance. g. The department may request the provider to supply subsequent reports on implementation of a corrective action plan submitted pursuant to 77.37(13)“e” and 77.37(13)“f.” h. The department may conduct a site visit to verify all or part of the information submitted. 77.37(14) Supported community living providers. a. The department will contract only with public or private agencies to provide the supported community living service. The department does not recognize individuals as service providers under the supported community living program. b. Providers of services meeting the definition of foster care shall also be licensed according to applicable 441—Chapters 108, 112, 114, 115, and 116. c. Providers of service may employ or contract with individuals meeting the definition of foster family homes to provide supported community living services. These individuals shall be licensed according to applicable 441—Chapters 112 and 113. d. All supported community living providers shall meet the following requirements: (1) The provider shall demonstrate how the provider will meet the outcomes and processes in rule 441—77.37(249A) for each of the consumers being served. The provider shall supply timelines showing how the provider will come into compliance with rules 441—77.37(249A), 441—78.41(249A), and 441—83.60(249A) to 441—83.70(249A) and 441—subrule 79.1(15) within one year of certification. These timelines shall include:

Implementation of necessary staff training and consumer input.
Implementation of provider system changes to allow for flexibility in staff duties, services based on what each individual needs, and removal of housing as part of the service.

(2) The provider shall demonstrate that systems are in place to measure outcomes and processes for individual consumers before certification can be given. e. The department shall approve living units designed to serve up to four persons except as necessary to prevent an overconcentration of supported community living units in a geographic area. f. The department shall approve a living unit designed to serve five persons if both of the following conditions are met: (1) Approval will not result in an overconcentration of supported community living units in a geographic area. (2) The county in which the living unit is located provides to the bureau of long-term care verification in writing that the approval is needed to address one or more of the following issues:

The quantity of services currently available in the county is insufficient to meet the need;
The quantity of affordable rental housing in the county is insufficient to meet the need; or
Approval will result in a reduction in the size or quantity of larger congregate settings.

77.37(15) Respite care providers. a. The following agencies may provide respite services: (1) Group living foster care facilities for children licensed by the department according to 441—Chapters 112 and 114 to 116 and child care centers licensed according to 441—Chapter 109. (2) Nursing facilities, intermediate care facilities for the mentally retarded, and hospitals enrolled as providers in the Iowa Medicaid program. (3) Residential care facilities for persons with mental retardation licensed by the department of inspections and appeals. (4) Home health agencies that are certified to participate in the Medicare program. (5) Camps certified by the American Camping Association. (6) Adult day care providers that meet the conditions of participation set forth in subrule 77.37(25). (7) Agencies authorized to provide similar services through a contract with the department of public health (IDPH) for local public health services. The agency must provide a current IDPH local public health services contract number. (8) Agencies certified by the department to provide respite services in the consumer’s home that meet the requirements of 77.37(1) and 77.37(3) through 77.37(9). (9) Assisted living programs certified by the department of inspections and appeals. b. Respite providers shall meet the following conditions: (1) Providers shall maintain the following information that shall be updated at least annually:

The consumer’s name, birth date, age, and address and the telephone number of each parent, guardian or primary caregiver.
An emergency medical care release.
Emergency contact telephone numbers such as the number of the consumer’s physician and the parents, guardian, or primary caregiver.
The consumer’s medical issues, including allergies.
The consumer’s daily schedule which includes the consumer’s preferences in activities or foods or any other special concerns.

(2) Procedures shall be developed for the dispensing, storage, authorization, and recording of all prescription and nonprescription medications administered. Home health agencies must follow Medicare regulations for medication dispensing.All medications shall be stored in their original containers, with the accompanying physician’s or pharmacist’s directions and label intact. Medications shall be stored so they are inaccessible to consumers and the public. Nonprescription medications shall be labeled with the consumer’s name.In the case of medications that are administered on an ongoing, long-term basis, authorization shall be obtained for a period not to exceed the duration of the prescription. (3) Policies shall be developed for:

Notifying the parent, guardian or primary caregiver of any injuries or illnesses that occur during respite provision. A parent’s, guardian’s or primary caregiver’s signature is required to verify receipt of notification.
Requiring the parent, guardian or primary caregiver to notify the respite provider of any injuries or illnesses that occurred prior to respite provision.
Documenting activities and times of respite. This documentation shall be made available to the parent, guardian or primary caregiver upon request.
Ensuring the safety and privacy of the individual. Policies shall at a minimum address threat of fire, tornado, or flood and bomb threats.

The agency must provide orientation training on the agency’s purpose, policies, and procedures within one month of hire or contracting for all employed and contracted treatment staff and must provide 24 hours of training during the first year of employment or contracting. The agency must also provide at least 12 hours of training per year after the first year of employment for all employed and contracted treatment staff. Annual training shall include, at a minimum, training on children’s mental retardation and developmental disabilities services and children’s mental health issues.Identification and reporting of child abuse shall be covered in training at least every five years, in accordance with Iowa Code section 232.69.
The agency must have standards for the rights and dignity of children that are age-appropriate. These standards shall include the following:
Children, their families, and their legal representatives decide what personal information is shared and with whom.
Children are a part of family and community life and perform varied social roles.
Children have family connections, a social network, and varied relationships.
Children develop and accomplish personal goals.
Children are valued.
Children live in positive environments.
Children exercise their rights and responsibilities.
Children make informed choices about how they spend their free time.
Children choose their daily routine.
The agency must use methods of self-evaluation by which:
Past performance is reviewed.
Current functioning is evaluated.
Plans are made for the future based on the review and evaluation.
The agency must have a governing body that receives and uses input from a wide range of local community interests and consumer representatives and provides oversight that ensures the provision of high-quality supports and services to children.
Children, their parents, and their legal representatives must have the right to appeal the service provider’s application of policies or procedures or any staff person’s action that affects the consumer. The service provider shall distribute the policies for consumer appeals and procedures to children, their parents, and their legal representatives.

c. As a condition of participation, all providers of residential-based supported community living services must have the following on file: (1) Current accreditations, evaluations, inspections, and reviews by applicable regulatory and licensing agencies and associations. (2) Documentation of the fiscal capacity of the provider to initiate and operate the specified programs on an ongoing basis. (3) The provider’s written agreement to work cooperatively with the department. d. As a condition of participation, all providers of residential-based supported community living services must develop, review, and revise service plans for each child, as follows: (1) The service plan shall be developed in collaboration with the social worker or case manager, child, family, and, if applicable, the foster parents, unless a treatment rationale for the lack of involvement of one of these parties is documented in the plan. The service provider shall document the dates and content of the collaboration on the service plan. The service provider shall provide a copy of the service plan to the family and the case manager, unless otherwise ordered by a court of competent jurisdiction. (2) Initial service plans shall be developed after services have been authorized and within 30 calendar days of initiating services. (3) The service plan shall identify the following:

Strengths and needs of the child.
Goals to be achieved to meet the needs of the child.
Objectives for each goal that are specific, measurable, and time-limited and include indicators of progress toward each goal.
Specific service activities to be provided to achieve the objectives.
The persons responsible for providing the services. When daily living and social skills development is provided in a group care setting, designation may be by job title.
Date of service initiation and date of individual service plan development.
Service goals describing how the child will be reunited with the child’s family and community.

(4) Individuals qualified to provide all services identified in the service plan shall review the services identified in the service plan to ensure that the services are necessary, appropriate, and consistent with the identified needs of the child, as listed on the Supports Intensity Scale® (SIS) assessment. (5) The service worker or case manager shall review all service plans to determine progress toward goals and objectives 90 calendar days from the initiation of services and every 90 calendar days thereafter for the duration of the services.At a minimum, the provider shall submit written reports to the service worker or case manager at six-month intervals and when changes to the service plan are needed. (6) The individual service plan shall be revised when any of the following occur:

Service goals or objectives have been achieved.
Progress toward goals and objectives is not being made.
Changes have occurred in the identified service needs of the child, as listed on the Supports Intensity Scale® (SIS) assessment.
The service plan is not consistent with the identified service needs of the child, as listed in the service plan.

(7) The service plan shall be signed and dated by qualified staff of each reviewing provider after each review and revision. (8) Any revisions of the service plan shall be made in collaboration with the child, family, case manager, and, if applicable, the foster parents and shall reflect the needs of the child. The service provider shall provide a copy of the revised service plan to the family and case manager, unless otherwise ordered by a court of competent jurisdiction. e. The residential-based supportive community living service provider shall also furnish residential-based living units for all recipients of the residential-based supported community living services. Except as provided herein, living units provided may be of no more than four beds. Service providers who receive approval from the bureau of long-term care may provide living units of up to eight beds. The bureau shall approve five- to eight-bed living units only if all of the following conditions are met: (1) Rescinded IAB 8/7/02, effective 10/1/02. (2) There is a need for the service to be provided in a five- to eight-person living unit instead of a smaller living unit, considering the location of the programs in an area. (3) The provider supplies the bureau of long-term care with a written plan acceptable to the department that addresses how the provider will reduce its living units to four-bed units within a two-year period of time. This written plan shall include the following:

How the transition will occur.
What physical change will need to take place in the living units.
How children and their families will be involved in the transitioning process.
How this transition will affect children’s social and educational environment.

f. Certification process and review of service providers. (1) The certification process for providers of residential-based supported community living services shall be pursuant to subrule 77.37(10). (2) The initial certification of residential-based supported community living services shall be pursuant to subrule 77.37(11). (3) Period and conditions of certification.

Initial certification. Providers eligible for initial certification by the department shall be issued an initial certification for 270 calendar days, effective on the date identified on the certificate of approval, based on documentation provided.
Recertification. After the initial certification, recertification shall be based on an on-site review and shall be contingent upon demonstration of compliance with certification requirements.An exit conference shall be held with the provider to share preliminary findings of the recertification review. A review report shall be written and sent to the provider within 30 calendar days unless the parties mutually agree to extend that time frame.Recertification shall become effective on the date identified on the Certificate of Approval, Form 470-3410, and shall terminate one year from the month of issuance.Corrective actions may be required in connection with recertification and may be monitored through the assignment of follow-up monitoring either by written report, a plan of corrective actions and improvements, an on-site review, or the provision of technical assistance.
Probational certification. Probational certification for 270 calendar days may be issued to a provider who cannot demonstrate compliance with all certification requirements on recertification review to give the provider time to establish and implement corrective actions and improvement activities.During the probational certification period, the department may require monitoring of the implementation of the corrective actions through on-site visits, written reports, or technical assistance.Probational certification shall not be renewed or extended and shall require a full on-site follow-up review to be completed. The provider must demonstrate compliance with all certification requirements at the time of the follow-up review in order to maintain certification.
Immediate jeopardy. If, during the course of any review, a review team member encounters a situation that places a member in immediate jeopardy, the team member shall immediately notify the provider, the department, and other team members. “Immediate jeopardy” refers to circumstances where the life, health, or safety of a member will be severely jeopardized if the circumstances are not immediately corrected.The provider shall correct the situation within 24 to 48 hours. If the situation is not corrected within the prescribed time frame, the provider shall not be certified. The department shall immediately discontinue funding for that provider’s service. If this action is appealed and the member or legal guardian wants to maintain the provider’s services, funding can be reinstated. At that time the provider shall take appropriate action to ensure the life, health, and safety of the members deemed to be at risk. The case manager or department service worker shall notify the county or region in the event the county or region is funding a service that may assist the member in the situation.
Abuse reporting. As a mandatory reporter, each review team member shall follow appropriate procedure in all cases where a condition reportable to child and adult protective services is observed.
Extensions. The department shall establish the length of extensions on a case-by-case basis. The department may grant an extension to the period of certification for the following reasons:
A delay in the department’s approval decision exists which is beyond the control of the provider or department.
A request for an extension is received from a provider to permit the provider to prepare and obtain department approval of corrective actions.
Revocation. The department may revoke the provider’s approval at any time for any of the following reasons:
The findings of a site visit indicate that the provider has failed to implement the corrective actions submitted pursuant to paragraph 77.37(13)“e” and numbered paragraph 77.37(23)“f”(3)“4.”
The provider has failed to provide information requested pursuant to paragraph 77.37(13)“f” and numbered paragraph 77.37(23)“f”(3)“4.”
The provider refuses to allow the department to conduct a site visit pursuant to paragraph 77.37(13)“h” and subparagraph 77.37(23)“f”(3).
There are instances of noncompliance with the standards that were not identified from information submitted on the application.
Notice of intent to withdraw. An approved provider shall immediately notify the department, applicable county, the applicable mental health and developmental disabilities planning council, and other interested parties of a decision to withdraw as a provider of residential-based supported community living services.
Technical assistance. Following certification, any provider may request technical assistance from the department regarding compliance with program requirements. The department may require that technical assistance be provided to a provider to assist in the implementation of any corrective action plan.
Appeals. The provider can appeal any adverse action under 441—Chapter 7.

(4) Providers of residential-based supported community living services shall be subject to reviews of compliance with program requirements pursuant to subrule 77.37(13). 77.37(24) Transportation service providers. The following providers may provide transportation: a. Accredited providers of home- and community-based services. b. Regional transit agencies as recognized by the Iowa department of transportation. c. Transportation providers that contract with county governments. d. Community action agencies as designated in Iowa Code section 216A.93. e. Nursing facilities licensed under Iowa Code chapter 135C. f. Area agencies on aging as designated in rule 17—4.4(231), subcontractors of area agencies on aging, or organizations with letters of approval from the area agencies on aging stating that the organization is qualified to provide transportation services. g. Transportation providers contracting with the nonemergency medical transportation contractor. 77.37(25) Adult day care providers. Adult day care providers shall be agencies that are certified by the department of inspections and appeals as being in compliance with the standards for adult day services programs at 481—Chapter 70. 77.37(26) Prevocational service providers. a. Providers of prevocational services must be accredited by one of the following: (1) The Commission on Accreditation of Rehabilitation Facilities as an organizational employment service provider or a community employment service provider. (2) The Council on Quality and Leadership accreditation in supports for people with disabilities. b. Providers responsible for the payroll of members shall have policies that ensure compliance with state and federal labor laws and regulations, which include, but are not limited to: (1) Subminimum wage laws and regulations, including the Workforce Investment Opportunity Act. (2) Member vacation, sick leave and holiday compensation. (3) Procedures for payment schedules and pay scale. (4) Procedures for provision of workers’ compensation insurance. (5) Procedures for the determination and review of commensurate wages. c. Direct support staff providing prevocational services shall meet the following minimum qualifications in addition to other requirements outlined in administrative rule: (1) A person providing direct support without line-of-sight supervision shall be at least 18 years of age and possess a high school diploma or equivalent. A person providing direct support with line-of-sight supervision shall be 16 years of age or older. (2) A person providing direct support shall not be an immediate family member of the member. (3) A person providing direct support shall, within 6 months of hire or within 6 months of May 4, 2016, complete at least 9.5 hours of employment services training as offered through DirectCourse or through the Association of Community Rehabilitation Educators (ACRE) certified training program. (4) Prevocational direct support staff shall complete 4 hours of continuing education in employment services annually. 77.37(27) Day habilitation providers. Day habilitation services may be provided by: a. Agencies accredited by the Commission on Accreditation of Rehabilitation Facilities to provide services that qualify as day habilitation under 441—subrule 78.41(14). b. Agencies accredited by the Commission on Accreditation of Rehabilitation Facilities to provide other services that began providing services that qualify as day habilitation under 441—subrule 78.41(14) since their last accreditation survey. The agency may provide day habilitation services until the current accreditation expires. When the current accreditation expires, the agency must qualify under paragraph “a” or “d.” c. Agencies not accredited by the Commission on Accreditation of Rehabilitation Facilities that have applied to the Commission within the last 12 months for accreditation to provide services that qualify as day habilitation under 441—subrule 78.41(14). An agency that has not received accreditation within 12 months after application to the Commission is no longer a qualified provider. d. Agencies accredited by the Council on Quality and Leadership. e. Agencies that have applied to the Council on Quality and Leadership for accreditation within the last 12 months. An agency that has not received accreditation within 12 months after application to the Council is no longer a qualified provider. 77.37(28) Financial management service. Consumers who elect the consumer choices option shall work with a financial institution that meets the qualifications in subrule 77.30(13). 77.37(29) Independent support brokerage. Consumers who elect the consumer choices option shall work with an independent support broker who meets the qualifications in subrule 77.30(14). 77.37(30) Self-directed personal care. Consumers who elect the consumer choices option may choose to purchase self-directed personal care services from an individual or business that meets the requirements in subrule 77.30(15). 77.37(31) Individual-directed goods and services. Consumers who elect the consumer choices option may choose to purchase individual-directed goods and services from an individual or business that meets the requirements in subrule 77.30(16). 77.37(32) Self-directed community supports and employment. Consumers who elect the consumer choices option may choose to purchase self-directed community supports and employment from an individual or business that meets the requirements in subrule 77.30(17). This rule is intended to implement Iowa Code section 249A.4.

ITEM 9. Amend rule 441—77.39(249A) as follows:

441—77.39(249A) HCBS brain injury waiver service providers. Providers shall be eligible to participate in the Medicaid brain injury waiver program if they meet the requirements in this rule and the subrules applicable to the individual service. Beginning January 1, 2015, providers initially enrolling to deliver BI waiver services and each of their staff members involved in direct consumer service must have completed the department’s brain injury training modules one and two within 60 days from the beginning date of service provision, with the exception of staff members who are certified through the Academy of Certified Brain Injury Specialists (ACBIS) as a certified brain injury specialist (CBIS) or certified brain injury specialist trainer (CBIST), providers of home and vehicle modification, specialized medical equipment, transportation, personal emergency response, financial management, independent support brokerage, self-directed personal care, individual-directed goods and services, and self-directed community supports and employment. Providers enrolled to provide BI waiver services and each of their staff members involved in direct consumer service on or before December 31, 2014, shall be deemed to have completed the required training.Services shall be rendered by a person who is at least 16 years old (except as otherwise provided in this rule) and is not the spouse of the consumer served or the parent or stepparent of a consumer aged 17 or under. People who are 16 or 17 years old must be employed and supervised by an enrolled HCBS provider unless they are employed to provide self-directed personal care services through the consumer choices option. A person hired for self-directed personal care services need not be supervised by an enrolled HCBS provider. A person hired through the consumer choices option for independent support brokerage, self-directed personal care, individual-directed goods and services, or self-directed community support and employment is not required to enroll as a Medicaid provider and is not subject to review under subrule 77.39(11). Consumer-directed attendant care and interim medical monitoring and treatment providers must be at least 18 years of age.In addition, behavioral programming, supported community living, and supported employment providers shall meet the outcome-based standards set forth below in subrules 77.39(1) and 77.39(2) evaluated according to subrules 77.39(8) to 77.39(10), and the requirements of subrules 77.39(3) to 77.39(7). Respite providers shall also meet the standards in subrule 77.39(1).The integrated, community-based settings standards in subrule 77.25(5) apply to all HCBS brain injury waiver service providers. 77.39(1) Organizational standards (Outcome 1). Organizational outcome-based standards for HCBS BI providers are as follows: a. The organization demonstrates the provision and oversight of high-quality supports and services to consumers. b. The organization demonstrates a defined mission commensurate with consumers’ needs, desires, and abilities. c. The organization establishes and maintains fiscal accountability. d. The organization has qualified staff commensurate with the needs of the consumers they serve. These staff demonstrate competency in performing duties and in all interactions with clients. e. The organization provides needed training and supports to its staff. This training includes at a minimum: (1) Consumer rights. (2) Confidentiality. (3) Provision of consumer medication. (4) Identification and reporting of child and dependent adult abuse. (5) Individual consumer support needs. f. The organization has a systematic, organizationwide, planned approach to designing, measuring, evaluating, and improving the level of its performance. The organization: (1) Measures and assesses organizational activities and services annually. (2) Gathers information from consumers, family members, and staff. (3) Conducts an internal review of consumer service records, including all major and minor incident reports according to subrule 77.37(8). (4) Tracks incident data and analyzes trends annually to assess the health and safety of consumers served by the organization. (5) Identifies areas in need of improvement. (6) Develops a plan to address the areas in need of improvement. (7) Implements the plan and documents the results. g. Consumers and their legal representatives have the right to appeal the provider’s implementation of the 20 outcomes, or staff or contractual person’s action which affects the consumer. The provider shall distribute the policies for consumer appeals and procedures to consumers. h. The provider shall have written policies and procedures and a staff training program for the identification and reporting of child and dependent adult abuse to the department pursuant to 441—Chapters 175 and 176. i. The governing body has an active role in the administration of the agency. j. The governing body receives and uses input from a wide range of local community interests and consumer representation and provides oversight that ensures the provision of high-quality supports and services to consumers. 77.39(2) Rights and dignity. Outcome-based standards for rights and dignity are as follows: a. (Outcome 2) Consumers are valued. b. (Outcome 3) Consumers live in positive environments. c. (Outcome 4) Consumers work in positive environments. d. (Outcome 5) Consumers exercise their rights and responsibilities. e. (Outcome 6) Consumers have privacy. f. (Outcome 7) When there is a need, consumers have support to exercise and safeguard their rights. g. (Outcome 8) Consumers decide which personal information is shared and with whom. h. (Outcome 9) Consumers make informed choices about where they work. i. (Outcome 10) Consumers make informed choices on how they spend their free time. j. (Outcome 11) Consumers make informed choices about where and with whom they live. k. (Outcome 12) Consumers choose their daily routine. l. (Outcome 13) Consumers are a part of community life and perform varied social roles. m. (Outcome 14) Consumers have a social network and varied relationships. n. (Outcome 15) Consumers develop and accomplish personal goals. o. (Outcome 16) Management of consumers’ money is addressed on an individualized basis. p. (Outcome 17) Consumers maintain good health. q. (Outcome 18) The consumer’s living environment is reasonably safe in the consumer’s home and community. r. (Outcome 19) The consumer’s desire for intimacy is respected and supported. s. (Outcome 20) Consumers have an impact on the services they receive. 77.39(3) The right to appeal. Consumers and their legal representatives have the right to appeal the provider’s application of policies or procedures, or any staff or contractual person’s action which affects the consumer. The provider shall distribute the policies for consumer appeals and procedures to consumers. 77.39(4) Storage and provision of medication. If the provider stores, handles, prescribes, dispenses or administers prescription or over-the-counter medications, the provider shall develop procedures for the storage, handling, prescribing, dispensing or administration of medication. For controlled substances, procedures shall be in accordance with department of inspections and appeals rule 481—63.18(135). 77.39(5) Research. If the provider conducts research involving consumers, the provider shall have written policies and procedures addressing the research. These policies and procedures shall ensure that consumers’ rights are protected. 77.39(6) Incident management and reporting. As a condition of participation in the medical assistance program, HCBS brain injury waiver service providers must comply with the requirements of Iowa Code sections 232.69 and 235B.3 regarding the reporting of child abuse and dependent adult abuse and with the incident management and reporting requirements in this subrule. Exception: The conditions in this subrule do not apply to providers of goods and services purchased under the consumer choices option or providers of home and vehicle modification, personal emergency response, and transportation. a. Definitions. "Major incident" means an occurrence involving a consumer during service provision that:

Results in a physical injury to or by the consumer that requires a physician’s treatment or admission to a hospital;
Results in the death of any person;
Requires emergency mental health treatment for the consumer;
Requires the intervention of law enforcement;
Requires a report of child abuse pursuant to Iowa Code section 232.69 or a report of dependent adult abuse pursuant to Iowa Code section 235B.3;
Constitutes a prescription medication error or a pattern of medication errors that leads to the outcome in paragraph “1,” “2,” or “3”; or
Involves a consumer’s location being unknown by provider staff who are assigned protective oversight.

"Minor incident" means an occurrence involving a consumer during service provision that is not a major incident and that:

Results in the application of basic first aid;
Results in bruising;
Results in seizure activity;
Results in injury to self, to others, or to property; or
Constitutes a prescription medication error.

The staff member’s supervisor.
The consumer or the consumer’s legal guardian. Exception: Notification to the consumer is required only if the incident took place outside of the provider’s service provision. Notification to the guardian, if any, is always required.
The consumer’s case manager.

By direct data entry into the Iowa Medicaid Provider Access System, or
By faxing or mailing Form 470-4698, Critical Incident Report, according to the directions on the form.

(3) The following information shall be reported:

The name of the consumer involved.
The date and time the incident occurred.
A description of the incident.
The names of all provider staff and others who were present at the time of the incident or who responded after becoming aware of the incident. The confidentiality of other waiver-eligible or non-waiver-eligible consumers who were present must be maintained by the use of initials or other means.
The action that the provider staff took to manage the incident.
The resolution of or follow-up to the incident.
The date the report is made and the handwritten or electronic signature of the person making the report.

(4) Submission of the initial report will generate a workflow in the Individualized Services Information System (ISIS) for follow-up by the case manager. When complete information about the incident is not available at the time of the initial report, the provider must submit follow-up reports until the case manager is satisfied with the incident resolution and follow-up. The completed report shall be maintained in a centralized file with a notation in the consumer’s file. d. Tracking and analysis.The provider shall track incident data and analyze trends to assess the health and safety of consumers served and determine if changes need to be made for service implementation or if staff training is needed to reduce the number or severity of incidents. 77.39(7) Intake, admission, service coordination, discharge, and referral. a. The provider shall have written policies and procedures according to state and federal laws for intake, admission, service coordination, discharge and referral. b. The provider shall ensure the rights of persons applying for services. 77.39(8) Certification process. Reviews of compliance with standards for initial certification and recertification shall be conducted by the department of human services’ bureau of long-term care quality assurance staff. Certification carries no assurance that the approved provider will receive funding. a. Rescinded IAB 9/1/04, effective 11/1/04. b. Rescinded IAB 9/1/04, effective 11/1/04. c. Rescinded IAB 9/1/04, effective 11/1/04. d. The department may request any information from the prospective service provider which is considered pertinent to arriving at a certification decision. This may include, but is not limited to: (1) Current accreditations, evaluations, inspections and reviews by regulatory and licensing agencies and associations. (2) Fiscal capacity of the prospective provider to initiate and operate the specified programs on an ongoing basis. 77.39(9) Initial certification. The department shall review the application and accompanying information to see if the provider has the necessary framework to provide services in accordance with all applicable requirements and standards. a. The department shall make a determination regarding initial certification within 60 days of receipt of the application and notify the provider in writing of the decision unless extended by mutual consent of the parties involved. b. The decision of the department on initial certification of the providers shall be based on all relevant information, including: (1) The application for status as an approved provider according to requirements of rules. (2) A determination of the financial position of the prospective provider in relation to its ability to meet the stated need. c. Providers applying for initial certification shall be offered technical assistance. 77.39(10) Period of certification. Provider certification shall become effective on the date identified on the certificate of approval and shall terminate in 270 calendar days, one year, or three calendar years from the month of issue. The renewal of certification shall be contingent upon demonstration of continued compliance with certification requirements. a. Initial certification. Providers eligible for initial certification by the department shall be issued an initial certification for 270 calendar days based on documentation provided. b. Recertification. After the initial certification, the level of certification shall be based on an on-site review unless the provider has been accredited for similar services by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), the Commission on Accreditation of Rehabilitation Facilities (CARF), the Council on Quality and Leadership in Supports for People with Disabilities (The Council), or the Council on Accreditation of Services for Families and Children (COA). The on-site reviews for supported community living and supported employment use interviews with consumers and significant people in the consumer’s life to determine whether or not the 20 individual value-based outcomes set forth in subrules 77.39(1) and 77.39(2) and corresponding processes are present for the consumer. Respite services are required to meet Outcome 1 and participate in satisfaction surveys.Once the outcomes and processes have been determined for all the consumers in the sample, a review team then determines which of the 20 outcomes and processes are present for the provider. A specific outcome is present for the provider when the specific outcome is determined to be present for 75 percent or more of the consumers interviewed. A specific process is present for the provider when the process is determined to be present for 75 percent or more of the consumers interviewed. Since the processes are in the control of the provider and the outcomes are more in the control of the consumer, length of certification will be based more heavily on whether or not the processes are in place to help consumers obtain desired outcomes.An exit conference shall be held with the organization to share preliminary findings of the certification review. A review report shall be written and sent to the provider within 30 calendar days unless the parties mutually agree to extend that time frame.Provider certification shall become effective on the date identified on the Certificate of Approval, Form 470-3410, and shall terminate in 270 calendar days, one year, or three calendar years from the month of issue. The renewal of certification shall be contingent upon demonstration of continued compliance with certification requirements. c. The department may issue four categories of recertification: (1) Three-year certification with excellence. An organization is eligible for certification with excellence if the number of processes present is 18 or higher and the number of outcomes and corresponding processes present together is 12 or higher. Both criteria need to be met to receive three-year certification with excellence. Corrective actions may be required which may be monitored through the assignment of follow-up monitoring either by written report, a plan of corrective actions and improvements, an on-site review, or the provision of technical assistance. (2) Three-year certification with follow-up monitoring. An organization is eligible for this type of certification if the number of processes present is 17 or higher and the number of outcomes and corresponding processes present together is 11 or higher. Both criteria need to be met to receive three-year certification. Corrective actions are required which may be monitored through the assignment of follow-up monitoring either by written report, a plan of corrective actions and improvements, an on-site review, or the provision of technical assistance. (3) One-year certification. An organization is eligible for this type of certification when the number of processes present is 14 or higher and the number of outcomes and processes present together is 9 or higher. Both criteria need to be met to receive one-year certification. One-year certification may also be given in lieu of longer certification when previously required corrective actions have not been implemented or completed. Corrective actions are required which may be monitored through the assignment of follow-up monitoring either by written report, a plan of corrective actions and improvements, an on-site review, or the provision of technical assistance. (4) Probational certification. A probational certification may be issued to those providers who cannot meet requirements for a one-year certification. This time period shall be granted to the provider to establish and implement corrective actions and improvement activities. During this time period the department may require monitoring of the implementation of the corrective actions through on-site visits, written reports or technical assistance. Probational certification issued for 270 calendar days shall not be renewed or extended and shall require a full on-site follow-up review to be completed. The provider shall be required to achieve at least a one-year certification status at the time of the follow-up review in order to maintain certification. d. During the course of the review, if a team member encounters a situation that places a consumer in immediate jeopardy, the team member shall immediately notify the provider, the department, and other team members. “Immediate jeopardy” refers to circumstances where the life, health, or safety of a member will be severely jeopardized if the circumstances are not immediately corrected. (1) The provider shall correct the situation within 24 to 48 hours. If the situation is not corrected within the prescribed time frame, that portion of the provider’s services that was the subject of the notification shall not be certified. The department shall immediately discontinue funding for that provider’s service. (2) If this action is appealed and the member, legal guardian, or attorney in fact under a durable power of attorney for health care wants to maintain the provider’s services, funding can be reinstated. At that time the provider shall take appropriate action to ensure the life, health, and safety of the members deemed to be at risk as a result of the provider’s inaction. e. As a mandatory reporter, each team member shall be required to follow appropriate procedure in all cases where a condition reportable to child and adult protective services is observed. f. The department may grant an extension to the period of approval for the following reasons: (1) A delay in the department’s approval decision which is beyond the control of the provider or department. (2) A request for an extension from a provider to permit the provider to prepare and obtain department approval of corrective actions. The department shall establish the length of extensions on a case-by-case basis. g. The department may revoke the provider’s approval at any time for any of the following reasons: (1) Findings of a site visit indicate that the provider has failed to implement the corrective actions submitted pursuant to paragraph 77.39(11)“d.” (2) The provider has failed to provide information requested pursuant to paragraph 77.39(11)“e.” (3) The provider refuses to allow the department to conduct a site visit pursuant to paragraph 77.39(11)“f.” (4) There are instances of noncompliance with the standards which were not identified from information submitted on the application. h. An approved provider shall immediately notify the department, applicable county, or region, the applicable mental health and developmental disabilities planning council, and other interested parties of a decision to withdraw from an HCBS BI waiver service. i. Following certification, any provider may request technical assistance from the department to bring into conformity those areas found in noncompliance with HCBS requirements. If multiple deficiencies are noted during a review, the department may require that technical assistance be provided to a provider to assist in the implementation of the provider’s corrective actions. Providers may be given technical assistance as needed. j. Appeals. Any adverse action can be appealed by the provider under 441—Chapter 7. 77.39(11) Departmental reviews. Reviews of compliance with standards as indicated in this chapter shall be conducted by the division of mental health and developmental disabilities quality assurance review staff. This review may include on-site case record audits, administrative procedures, clinical practices, and interviews with staff, consumers, and board of directors consistent with the confidentiality safeguards of state and federal laws. a. Reviews shall be conducted annually with additional reviews conducted at the discretion of the department. b. Following a departmental review, the department shall submit a copy of the department’s determined survey report to the service provider, noting service deficiencies and strengths. c. The service provider shall develop a plan of corrective action identifying completion time frames for each survey deficiency. d. The corrective action plan shall be submitted to the Division of Mental Health and Developmental Disabilities, 5th Floor, Hoover State Office Building, Des Moines, Iowa 50319-0114, and include a statement dated and signed, if applicable, by the chief administrative officer and president or chairperson of the governing body that all information submitted to the department is accurate and complete. e. The department may request the provider to supply subsequent reports on implementation of a corrective action plan submitted pursuant to paragraphs 77.39(11)“c” and “d.” f. The department may conduct a site visit to verify all or part of the information submitted. 77.39(12) Case management service providers. Case management provider organizations are eligible to participate in the Medicaid HCBS brain injury waiver program provided that they meet the standards in 441—Chapter 24 and they are the department of human services, a county or consortium of counties, or a provider under subcontract to the department or a county or consortium of counties. 77.39(13) Supported community living providers. a. The department shall certify only public or private agencies to provide the supported community living service. The department does not recognize individuals as service providers under the supported community living program. b. Providers of services meeting the definition of foster care shall also be licensed according to applicable 441—Chapters 108, 112, 114, 115, and 116, which deal with foster care licensing. c. Providers of service may employ or contract with individuals meeting the definition of foster family homes to provide supported community living services. These individuals shall be licensed according to applicable 441—Chapters 112 and 113, which deal with foster care licensing. d. The department shall approve living units designed to serve four consumers if the geographic location of the program does not result in an overconcentration of programs in an area. (1) Rescinded IAB 8/7/02, effective 10/1/02. (2) Rescinded IAB 8/7/02, effective 10/1/02. e. The department shall approve living units designed to serve up to four persons except as necessary to prevent an overconcentration of supported community living units in a geographic area. f. The department shall approve a living unit designed to serve five persons if both of the following conditions are met: (1) Approval will not result in an overconcentration of supported community living units in a geographic area. (2) The county in which the living unit is located provides to the bureau of long-term care verification in writing that the approval is needed to address one or more of the following issues:

The quantity of services currently available in the county is insufficient to meet the need;
The quantity of affordable rental housing in the county is insufficient to meet the need; or
Approval will result in a reduction in the size or quantity of larger congregate settings.

77.39(14) Respite service providers. Respite providers are eligible to be providers of respite service in the HCBS brain injury waiver if they have documented training or experience with persons with a brain injury. a. The following agencies may provide respite services: (1) Respite providers certified under the HCBS intellectual disability waiver. (2) Adult day care providers that meet the conditions of participation set forth in subrule 77.39(20). (3) Group living foster care facilities for children licensed by the department according to 441—Chapters 112 and 114 to 116 and child care centers licensed according to 441—Chapter 109. (4) Camps certified by the American Camping Association. (5) Home care agencies that meet the conditions of participation set forth in subrule 77.30(1). (6) Nursing facilities, intermediate care facilities for the mentally retarded, and hospitals enrolled as providers in the Iowa Medicaid program. (7) Residential care facilities for persons with mental retardation licensed by the department of inspections and appeals. (8) Home health agencies that are certified to participate in the Medicare program. (9) Agencies certified by the department to provide respite services in the consumer’s home that meet the requirements of subrules 77.39(1) and 77.39(3) through 77.39(7). (10) Assisted living programs certified by the department of inspections and appeals. b. Respite providers shall meet the following conditions: (1) Providers shall maintain the following information that shall be updated at least annually:

The consumer’s name, birth date, age, and address and the telephone number of each parent, guardian or primary caregiver.
An emergency medical care release.
Emergency contact telephone numbers such as the number of the consumer’s physician and the parents, guardian, or primary caregiver.
The consumer’s medical issues, including allergies.
The consumer’s daily schedule which includes the consumer’s preferences in activities or foods or any other special concerns.

Notifying the parent, guardian or primary caregiver of any injuries or illnesses that occur during respite provision. A parent’s, guardian’s or primary caregiver’s signature is required to verify receipt of notification.
Requiring the parent, guardian or primary caregiver to notify the respite provider of any injuries or illnesses that occurred prior to respite provision.
Documenting activities and times of respite. This documentation shall be made available to the parent, guardian or primary caregiver upon request.
Ensuring the safety and privacy of the individual. Policies shall at a minimum address threat of fire, tornado, or flood and bomb threats.

c. A facility providing respite under this subrule shall not exceed the facility’s licensed capacity, and services shall be provided in locations consistent with licensure. d. Respite provided outside the consumer’s home or the facility covered by the licensure, certification, accreditation, or contract must be approved by the parent, guardian or primary caregiver and the interdisciplinary team and must be consistent with the way the location is used by the general public. Respite in these locations shall not exceed 72 continuous hours. 77.39(15) Supported employment providers. a. The following agencies may provide supported employment services: (1) An agency that is accredited by the Commission on Accreditation of Rehabilitation Facilities as an organizational employment service provider, a community employment service provider or a provider of a similar service. (2) An agency that is accredited by the Council on Accreditation for similar services. (3) An agency that is accredited by the Joint Commission for similar services. (4) An agency that is accredited by the Council on Quality and Leadership for similar services. (5) An agency that is accredited by the International Center for Clubhouse Development. b. Providers responsible for the payroll of members shall have policies that ensure compliance with state and federal labor laws and regulations, which include, but are not limited to: (1) Subminimum wage laws and regulations, including the Workforce Investment Opportunity Act. (2) Member vacation, sick leave and holiday compensation. (3) Procedures for payment schedules and pay scale. (4) Procedures for provision of workers’ compensation insurance. (5) Procedures for the determination and review of commensurate wages. c. Individuals may not provide supported employment services except when the services are purchased through the consumer choices option. d. Direct support staff providing individual or small-group supported employment or long-term job coaching services shall meet the following minimum qualifications in addition to other requirements outlined in administrative rule: (1) Individual supported employment: bachelor’s degree or commensurate experience, preferably in human services, sociology, psychology, education, human resources, marketing, sales or business. The person must also hold a nationally recognized certification (ACRE or College of Employment Services (CES) or similar) as an employment specialist or must earn this credential within 24 months of hire. (2) Long-term job coaching: associate degree, or high school diploma or equivalent and 6 months’ relevant experience. A person providing direct support shall, within 6 months of hire or within 6 months of May 4, 2016, complete at least 9.5 hours of employment services training as offered through DirectCourse or through the ACRE certified training program. The person must also hold or obtain, within 24 months of hire, nationally recognized certification in job training and coaching. (3) Small-group supported employment: associate degree, or high school diploma or equivalent and 6 months’ relevant experience. A person providing direct support shall, within 6 months of hire or within 6 months of May 4, 2016, complete at least 9.5 hours of employment services training as offered through DirectCourse or through the ACRE certified training program. The person must also hold or obtain, within 24 months of hire, nationally recognized certification in job training and coaching. (4) Supported employment direct support staff shall complete 4 hours of continuing education in employment services annually. 77.39(16) Home and vehicle modification providers. The following providers may provide home and vehicle modification: a. Providers eligible to participate as home and vehicle modification providers under the elderly or health and disability waiver, enrolled as home and vehicle modification providers under the physical disability waiver, or certified as home and vehicle modification providers under the physical disability waiver. b. Community businesses that have all necessary licenses and permits to operate in conformity with federal, state, and local laws and regulations and that submit verification of current liability and workers’ compensation insurance. 77.39(17) Personal emergency response system providers. Personal emergency response system providers shall be agencies which meet the conditions of participation set forth in subrule 77.33(2). a. Providers shall be certified annually. b. The service provider shall submit documentation to the department supporting continued compliance with the requirements set forth in subrule 77.33(2) 90 days before the expiration of the current certification. 77.39(18) Transportation service providers. This service is not to be provided at the same time as supported community service, which includes transportation. The following providers may provide transportation: a. Area agencies on aging as designated in rule 17—4.4(231) or with letters of approval from the area agencies on aging stating the organization is qualified to provide transportation services. b. Community action agencies as designated in Iowa Code section 216A.93. c. Regional transit agencies as recognized by the Iowa department of transportation. d. Providers with purchase of service contracts to provide transportation pursuant to 441—Chapter 150. e. Nursing facilities licensed pursuant to Iowa Code chapter 135C. f. Transportation providers contracting with the nonemergency medical transportation contractor. 77.39(19) Specialized medical equipment providers. The following providers may provide specialized medical equipment: a. Medical equipment and supply dealers participating as providers in the Medicaid program. b. Retail and wholesale businesses participating as providers in the Medicaid program which provide specialized medical equipment as defined in 441—subrule 78.43(8). 77.39(20) Adult day care providers. Adult day care providers shall be agencies that are certified by the department of inspections and appeals as being in compliance with the standards for adult day services programs at 481—Chapter 70. 77.39(21) Family counseling and training providers. Family counseling and training providers shall be one of the following: a. Providers certified under the community mental health center standards established by the mental health and developmental disabilities commission, set forth in 441—Chapter 24, Divisions I and III, and that employ staff to provide family counseling and training who meet the definition of qualified brain injury professional as set forth in rule 441—83.81(249A). b. Providers licensed as meeting the hospice standards and requirements set forth in department of inspections and appeals rules in 481—Chapter 53 or certified to meet the standards under the Medicare program for hospice programs, and that employ staff who meet the definition of qualified brain injury professional as set forth in rule 441—83.81(249A). c. Providers accredited under the mental health service provider standards established by the mental health and developmental and disabilities commission, set forth in 441—Chapter 24, Divisions I and IV, and that employ staff to provide family counseling and training who meet the definition of qualified brain injury professional as set forth in rule 441—83.81(249A). d. Individuals who meet the definition of qualified brain injury professional as set forth in rule 441—83.81(249A). e. Agencies certified as brain injury waiver providers pursuant to rule 441—77.39(249A) that employ staff to provide family counseling who meet the definition of a qualified brain injury professional as set forth in rule 441—83.81(249A). 77.39(22) Prevocational services providers. a. Providers of prevocational services must be accredited by one of the following: (1) The Commission on Accreditation of Rehabilitation Facilities as an organizational employment service provider or a community employment service provider. (2) The Council on Quality and Leadership accreditation in supports for people with disabilities. b. Providers responsible for the payroll of members shall have policies that ensure compliance with state and federal labor laws and regulations, which include, but are not limited to: (1) Subminimum wage laws and regulations, including the Workforce Investment Opportunity Act. (2) Member vacation, sick leave and holiday compensation. (3) Procedures for payment schedules and pay scale. (4) Procedures for provision of workers’ compensation insurance. (5) Procedures for the determination and review of commensurate wages. c. Direct support staff providing prevocational services shall meet the following minimum qualifications in addition to other requirements outlined in administrative rule: (1) A person providing direct support without line-of-sight supervision shall be at least 18 years of age and possess a high school diploma or equivalent. A person providing direct support with line-of-sight supervision shall be 16 years of age or older. (2) A person providing direct support shall not be an immediate family member of the member. (3) A person providing direct support shall, within 6 months of hire or within 6 months of May 4, 2016, complete at least 9.5 hours of employment services training as offered through DirectCourse or through the Association of Community Rehabilitation Educators (ACRE) certified training program. (4) Supported employment direct support staff shall complete 4 hours of continuing education in employment services annually. 77.39(23) Behavioral programming providers. Behavioral programming providers shall be required to have experience with or training regarding the special needs of persons with a brain injury. In addition, they must meet the following requirements. a. Behavior assessment, and development of an appropriate intervention plan, and periodic reassessment of the plan, and training of staff who shall implement the plan must be done by a qualified brain injury professional as defined in rule 441—83.81(249A). Formal assessment of the consumers’ intellectual and behavioral functioning must be done by a licensed psychologist or a psychiatrist who is certified by the American Board of Psychiatry. b. Implementation of the plan and training and supervision of caregivers, including family members, must be done by behavioral aides who have been trained by a qualified brain injury professional as defined in rule 441—83.81(249A) and who are employees of one of the following: (1) Agencies which are certified under the community mental health center standards established by the mental health and developmental disabilities commission, set forth in 441—Chapter 24, Divisions I and III. (2) Agencies which are licensed as meeting the hospice standards and requirements set forth in department of inspections and appeals rules 481—Chapter 53 or which are certified to meet the standards under the Medicare program for hospice programs. (3) Agencies which are accredited under the mental health service provider standards established by the mental health and disabilities commission, set forth in 441—Chapter 24, Divisions I and IV. (4) Home health aide providers meeting the standards set forth in subrule 77.33(3). Home health aide providers certified by Medicare shall be considered to have met these standards. (5) Brain injury waiver providers certified pursuant to rule 441—77.39(249A). 77.39(24) Consumer-directed attendant care providers. The following providers may provide consumer-directed attendant care service: a. An individual who contracts with the member to provide attendant care service and who is: (1) At least 18 years of age. (2) Qualified by training or experience to carry out the member’s plan of care pursuant to the department-approved case plan or individual comprehensive plan. (3) Not the spouse of the member or a parent or stepparent of a member aged 17 or under. (4) Not the recipient of respite services paid through home- and community-based services on behalf of a member who receives home- and community-based services. b. Agencies authorized to provide similar services through a contract with the department of public health (IDPH) for local public health services. The agency must provide a current IDPH local public health services contract number. c. Home health agencies which are certified to participate in the Medicare program. d. Chore providers subcontracting with area agencies on aging or with letters of approval from the area agencies on aging stating that the organization is qualified to provide chore services. e. Community action agencies as designated in Iowa Code section 216A.93. f. Providers certified under an HCBS waiver for supported community living. g. Assisted living programs that are certified by the department of inspections and appeals under 481—Chapter 69. h. Adult day service providers that are certified by the department of inspections and appeals under 481—Chapter 70. 77.39(25) Interim medical monitoring and treatment providers. a. The following providers may provide interim medical monitoring and treatment services: (1) Home health agencies certified to participate in the Medicare program. (2) Supported community living providers certified according to subrule 77.37(14) or 77.39(13). b. Staff requirements. Staff members providing interim medical monitoring and treatment services to members shall meet all of the following requirements: (1) Be at least 18 years of age. (2) Not be the spouse of the member or a parent or stepparent of the member if the member is aged 17 or under. (3) Not be a usual caregiver of the member. (4) Be qualified by training or experience to provide medical intervention or intervention in a medical emergency necessary to carry out the member’s plan of care. The training or experience required must be determined by the member’s usual caregivers and a licensed medical professional on the member’s interdisciplinary team and must be documented in the member’s service plan. c. Service documentation. Providers shall maintain clinical and fiscal records necessary to fully disclose the extent of services furnished to members. Records shall specify by service date the procedures performed, together with information concerning progress of treatment. 77.39(26) Financial management service. Consumers who elect the consumer choices option shall work with a financial institution that meets the qualifications in subrule 77.30(13). 77.39(27) Independent support brokerage. Consumers who elect the consumer choices option shall work with an independent support broker who meets the qualifications in subrule 77.30(14). 77.39(28) Self-directed personal care. Consumers who elect the consumer choices option may choose to purchase self-directed personal care services from an individual or business that meets the requirements in subrule 77.30(15). 77.39(29) Individual-directed goods and services. Consumers who elect the consumer choices option may choose to purchase individual-directed goods and services from an individual or business that meets the requirements in subrule 77.30(16). 77.39(30) Self-directed community supports and employment. Consumers who elect the consumer choices option may choose to purchase self-directed community supports and employment from an individual or business that meets the requirements in subrule 77.30(17). This rule is intended to implement Iowa Code section 249A.4.

ITEM 10. Amend rule 441—77.41(249A), introductory paragraph, as follows:

441—77.41(249A) HCBS physical disability waiver service providers. Providers shall be eligible to participate in the Medicaid physical disability waiver program if they meet the requirements in this rule and the subrules applicable to the individual service. Enrolled providers shall maintain the certification listed in the applicable subrules in order to remain eligible providers.The integrated, community-based settings standards in subrule 77.25(5) apply to all HCBS physical disability waiver service providers.

ITEM 11. Amend rule 441—77.46(249A), introductory paragraph, as follows:

441—77.46(249A) HCBS children’s mental health waiver service providers. HCBS children’s mental health waiver services shall be rendered by provider agencies that meet the general provider standards in subrule 77.46(1)and the integrated, community-based settings standards in subrule 77.25(5) and also meet the standards in subrules 77.46(2) to 77.46(5) that are specific to the waiver services provided. A provider that is approved for the same service under another HCBS Medicaid waiver shall be eligible to enroll for that service under the children’s mental health waiver.

ITEM 12. Amend rule 441—78.27(249A), introductory paragraph, as follows:

441—78.27(249A) Home- and community-based habilitation services. Payment for habilitation services will only be made to providers enrolled to provide habilitation through the Iowa Medicaid enterprise.Effective March 17, 2022, payment shall only be made for services provided to members in integrated, community-based settings that support full access of members receiving Medicaid HCBS to the greater community, including opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources, and receive services in the community, to the same degree of access as individuals not receiving Medicaid HCBS.

ITEM 13. Amend subrule 78.27(1), definition of “Comprehensive service plan,” as follows: "Comprehensive service plan" means an individualized,person-centered, and goal-oriented plan of services written in language understandable by the member using the service and developed collaboratively by the member and the case manager.

ITEM 14. Amend paragraph 78.27(4)"a" as follows: a. Development.A comprehensive service plan or treatment plan shall be developed for each member receiving home- and community-based habilitation services based on the member’s current assessment and shall be reviewed on an annual basis. (1) The case manager or the integrated health home care coordinator shall establish an interdisciplinary team foras selected by the memberor the member’s legal representative. The team shall include the case manager or integrated health home care coordinator and the member and, if applicable, the member’s legal representative, the member’s family, the member’s service providers, and others directly involvedwith the member. (2) Withassistance from the member and the interdisciplinary team, the case manager or integrated health home care coordinator shall identify the member’s services based on the member’s needs, the availability of services, and the member’s choice of services and providers. (3) The comprehensive service plan development shall be completed at the member’s home or at another location chosen by the member. (4) The interdisciplinary team meeting shall be conducted before the current comprehensive service plan expires. (5) The comprehensive service plan shall reflect desired individual outcomes. (6) Services defined in the comprehensive service plan shall be appropriate to the severity of the member’s problems and to the member’s specific needs or disabilities. (7) Activities identified in the comprehensive service plan shall encourage the ability and right of the member to make choices, to experience a sense of achievement, and to modify or continue participation in the treatment process. (8) For members receiving home-based habilitation in a licensed residential care facility of 16 or fewer beds, the service plan shall address the member’s opportunities for independence and community integration. (9) The initial comprehensive service plan or treatment plan and annual updates to the comprehensive service plan or treatment plan must be approved by the IME medical services unit in ISIS before services are implemented. Services provided before the approval date are not payable. The written comprehensive service plan or treatment plan must be completed, signed and dated by the case manager,or integrated health home care coordinator, or service worker within 30 calendar days after plan approval. (10) Any changes to the comprehensive service plan or treatment plan must be approved by the IME medical services unit for members not eligible to enroll in a managed care organization in ISIS before the implementation of services. Services provided before the approval date are not payable.

ITEM 15. Amend paragraph 78.27(8)"b" as follows: b. Setting.Day habilitation shall take place in acommunity-based, nonresidential settingsettings separate from the member’s residence. Services shall not be provided in the member’s home. When the member lives in a residential care facility of more than 16 beds, day habilitation services provided in the facility are not considered to be provided in the member’s home if the services are provided in an area apart from the member’s sleeping accommodations.

ITEM 16. Amend rule 441—78.34(249A), introductory paragraph, as follows:

441—78.34(249A) HCBS ill and handicapped waiver services. Payment will be approved for the following services to members eligible for HCBS ill and handicapped waiver services as established in 441—Chapter 83 and as identified in the member’s service plan.Effective March 17, 2022, payment shall only be made for services provided in integrated, community-based settings that support full access of members receiving Medicaid HCBS to the greater community, including opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources, and receive services in the community, to the same degree of access as individuals not receiving Medicaid HCBS.

ITEM 17. Amend subparagraph 78.34(8)"d" as follows: (4) Interim medical monitoring and treatment services shall be provided only inthe following settings that are approved by the department as integrated, community-based settings: the member’s home; in a registered child development home; in a licensed child care center, residential care facility, or adult day care facility; or during the time when the member is being transported to and from school.

ITEM 18. Reletter paragraphs 78.34(14)"c" and 78.34(14)"d" as 78.34(14)"d" and 78.34(14)"e".

ITEM 19. Adopt the following new paragraph 78.34(14)"c": c. All rights restrictions must be implemented in accordance with 441—subrule 77.25(4). The member service plan or treatment plan shall include documentation of: (1) Any restrictions on the member’s rights, including the rights of privacy, dignity, respect, and freedom from coercion and restraint. (2) The need for the restriction. (3) The less intrusive methods of meeting the need that have been tried but did not work. (4) Either a plan to restore those rights or written documentation that a plan is not necessary or appropriate. (5) Established time limits for periodic reviews to determine if the restriction is still necessary or can be terminated. (6) The informed consent of the member. (7) An assurance that the interventions and supports will cause no harm to the member. (8) A regular collection and review of data to measure the ongoing effectiveness of the restriction.

ITEM 20. Amend rule 441—78.37(249A), introductory paragraph, as follows:

441—78.37(249A) HCBS elderly waiver services. Payment will be approved for the following services to members eligible for the HCBS elderly waiver services as established in 441—Chapter 83 and as identified in the member’s service plan.Effective March 17, 2022, payment shall only be made for services provided in integrated, community-based settings that support full access of members receiving Medicaid HCBS to the greater community, including opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources, and receive services in the community, to the same degree of access as individuals not receiving Medicaid HCBS.

ITEM 21. Reletter paragraphs 78.37(19)"c" and 78.37(19)"d" as 78.37(19)"d" and 78.37(19)"e".

ITEM 22. Adopt the following new paragraph 78.37(19)"c": c. All rights restrictions must be implemented in accordance with 441—subrule 77.25(4). The member service plan or treatment plan shall include documentation of: (1) Any restrictions on the member’s rights, including the rights of privacy, dignity, respect, and freedom from coercion and restraint. (2) The need for the restriction. (3) The less intrusive methods of meeting the need that have been tried but did not work. (4) Either a plan to restore those rights or written documentation that a plan is not necessary or appropriate. (5) Established time limits for periodic reviews to determine if the restriction is still necessary or can be terminated. (6) The informed consent of the member. (7) An assurance that the interventions and supports will cause no harm to the member. (8) A regular collection and review of data to measure the ongoing effectiveness of the restriction.

ITEM 23. Amend rule 441—78.38(249A), introductory paragraph, as follows:

441—78.38(249A) HCBS AIDS/HIV waiver services. Payment will be approved for the following services to members eligible for the HCBS AIDS/HIV waiver services as established in 441—Chapter 83 and as identified in the member’s service plan.Effective March 17, 2022, payment shall only be made for services provided in integrated, community-based settings that support full access of members receiving Medicaid HCBS to the greater community, including opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources, and receive services in the community, to the same degree of access as individuals not receiving Medicaid HCBS.

ITEM 24. Reletter paragraphs 78.38(10)"c" and 78.38(10)"d" as 78.38(10)"d" and 78.38(10)"e".

ITEM 25. Adopt the following new paragraph 78.38(10)"c": c. All rights restrictions must be implemented in accordance with 441—subrule 77.25(4). The member service plan or treatment plan shall include documentation of: (1) Any restrictions on the member’s rights, including the rights of privacy, dignity, respect, and freedom from coercion and restraint. (2) The need for the restriction. (3) The less intrusive methods of meeting the need that have been tried but did not work. (4) Either a plan to restore those rights or written documentation that a plan is not necessary or appropriate. (5) Established time limits for periodic reviews to determine if the restriction is still necessary or can be terminated. (6) The informed consent of the member. (7) An assurance that the interventions and supports will cause no harm to the member. (8) A regular collection and review of data to measure the ongoing effectiveness of the restriction.

ITEM 26. Amend rule 441—78.41(249A), introductory paragraph, as follows:

441—78.41(249A) HCBS intellectual disability waiver services. Payment will be approved for the following services to members eligible for the HCBS intellectual disability waiver as established in 441—Chapter 83 and as identified in the member’s service plan.Effective March 17, 2022, payment shall only be made for services provided in integrated, community-based settings that support full access of members receiving Medicaid HCBS to the greater community, including opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources, and receive services in the community, to the same degree of access as individuals not receiving Medicaid HCBS.

ITEM 27. Amend subparagraph 78.41(9)"d" as follows: (4) Interim medical monitoring and treatment services shall be provided only inthe following settings that are approved by the department as integrated, community-based settings: the member’s home; in a registered child development home; in a licensed child care center, residential care facility, or adult day care facility; or during the time when the member is being transported to and from school.

ITEM 28. Reletter paragraphs 78.41(16)"c" and 78.41(16)"d" as 78.41(16)"d" and 78.41(16)"e".

ITEM 29. Adopt the following new paragraph 78.41(16)"c": c. All rights restrictions must be implemented in accordance with 441—subrule 77.25(4). The member service plan or treatment plan shall include documentation of: (1) Any restrictions on the member’s rights, including the rights of privacy, dignity, respect, and freedom from coercion and restraint. (2) The need for the restriction. (3) The less intrusive methods of meeting the need that have been tried but did not work. (4) Either a plan to restore those rights or written documentation that a plan is not necessary or appropriate. (5) Established time limits for periodic reviews to determine if the restriction is still necessary or can be terminated. (6) The informed consent of the member. (7) An assurance that the interventions and supports will cause no harm to the member. (8) A regular collection and review of data to measure the ongoing effectiveness of the restriction.

ITEM 30. Amend rule 441—78.43(249A), introductory paragraph, as follows:

441—78.43(249A) HCBS brain injury waiver services. Payment shall be approved for the following services to members eligible for the HCBS brain injury waiver services as established in 441—Chapter 83 and as identified in the member’s service plan.Effective March 17, 2022, payment shall only be made for services provided in integrated, community-based settings that support full access of members receiving Medicaid HCBS to the greater community, including opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources, and receive services in the community, to the same degree of access as individuals not receiving Medicaid HCBS.

ITEM 31. Amend subparagraph 78.43(14)"d" as follows: (4) Interim medical monitoring and treatment services shall be provided only inthe following settings that are approved by the department as integrated, community-based settings: the member’s home; in a registered child development home; in a licensed child care center, residential care facility, or adult day care facility; or during the time when the member is being transported to and from school.

ITEM 32. Reletter paragraphs 78.43(16)"c" and 78.43(16)"d" as 78.43(16)"d" and 78.43(16)"e".

ITEM 33. Adopt the following new paragraph 78.43(16)"c": c. All rights restrictions must be implemented in accordance with 441—subrule 77.25(4). The member service plan or treatment plan shall include documentation of: (1) Any restrictions on the member’s rights, including the rights of privacy, dignity, respect, and freedom from coercion and restraint. (2) The need for the restriction. (3) The less intrusive methods of meeting the need that have been tried but did not work. (4) Either a plan to restore those rights or written documentation that a plan is not necessary or appropriate. (5) Established time limits for periodic reviews to determine if the restriction is still necessary or can be terminated. (6) The informed consent of the member. (7) An assurance that the interventions and supports will cause no harm to the member. (8) A regular collection and review of data to measure the ongoing effectiveness of the restriction.

ITEM 34. Amend rule 441—78.46(249A), introductory paragraph, as follows:

441—78.46(249A) Physical disability waiver service. Payment shall be approved for the following services to members eligible for the HCBS physical disability waiver as established in 441—Chapter 83 and as identified in the member’s service plan.Effective March 17, 2022, payment shall only be made for services provided in integrated, community-based settings that support full access of members receiving Medicaid HCBS to the greater community, including opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources, and receive services in the community, to the same degree of access as individuals not receiving Medicaid HCBS.

ITEM 35. Reletter paragraphs 78.46(7)"c" and 78.46(7)"d" as 78.46(7)"d" and 78.46(7)"e".

ITEM 36. Adopt the following new paragraph 78.46(7)"c": c. All rights restrictions must be implemented in accordance with 441—subrule 77.25(4). The member service plan or treatment plan shall include documentation of: (1) Any restrictions on the member’s rights, including the rights of privacy, dignity, respect, and freedom from coercion and restraint. (2) The need for the restriction. (3) The less intrusive methods of meeting the need that have been tried but did not work. (4) Either a plan to restore those rights or written documentation that a plan is not necessary or appropriate. (5) Established time limits for periodic reviews to determine if the restriction is still necessary or can be terminated. (6) The informed consent of the member. (7) An assurance that the interventions and supports will cause no harm to the member. (8) A regular collection and review of data to measure the ongoing effectiveness of the restriction.

ITEM 37. Amend rule 441—78.52(249A), introductory paragraph, as follows:

441—78.52(249A) HCBS children’s mental health waiver services. Payment will be approved for the following services to members eligible for the HCBS children’s mental health waiver as established in 441—Chapter 83 and as identified in the member’s service plan.Effective March 17, 2022, payment shall only be made for services provided in integrated, community-based settings that support full access of members receiving Medicaid HCBS to the greater community, including opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources, and receive services in the community, to the same degree of access as individuals not receiving Medicaid HCBS.

ITEM 38. Reletter paragraphs 78.52(1)"c" and 78.52(1)"d" as 78.52(1)"d" and 78.52(1)"e".

ITEM 39. Adopt the following new paragraph 78.52(1)"c": c. All rights restrictions must be implemented in accordance with 441—subrule 77.25(4). The member service plan or treatment plan shall include documentation of: (1) Any restrictions on the member’s rights, including the rights of privacy, dignity, respect, and freedom from coercion and restraint. (2) The need for the restriction. (3) The less intrusive methods of meeting the need that have been tried but did not work. (4) Either a plan to restore those rights or written documentation that a plan is not necessary or appropriate. (5) Established time limits for periodic reviews to determine if the restriction is still necessary or can be terminated. (6) The informed consent of the member. (7) An assurance that the interventions and supports will cause no harm to the member. (8) A regular collection and review of data to measure the ongoing effectiveness of the restriction.

ITEM 40. Amend rule 441—83.1(249A), definition of “Service plan,” as follows: "Service plan" means a written consumer-centeredperson-centered, outcome-based plan of services developed using an interdisciplinary process,which is written by the member’s case manager with input and direction from the member and which addresses all relevant services and supports being provided. It may involve more than one provider.The service plan is developed by the interdisciplinary team, which includes the member and, if appropriate, the member’s legal representative, member’s family, service providers, and others directly involved with the member.

ITEM 41. Amend rule 441—83.21(249A), definition of “Service plan,” as follows: "Service plan" means a written consumer-centeredperson-centered, outcome-based plan of services developed using an interdisciplinary process,which is written by the member’s case manager with input and direction from the member and which addresses all relevant services and supports being provided. It may involve more than one provider.The service plan is developed by the interdisciplinary team, which includes the member and, if appropriate, the member’s legal representative, member’s family, service providers, and others directly involved with the member.

ITEM 42. Amend rule 441—83.41(249A), definition of “Service plan,” as follows: "Service plan" means a written consumer-centeredperson-centered, outcome-based plan of services developed using an interdisciplinary process,which is written by the member’s case manager with input and direction from the member and which addresses all relevant services and supports being provided. It may involve more than one provider.The service plan is developed by the interdisciplinary team, which includes the member and, if appropriate, the member’s legal representative, member’s family, service providers, and others directly involved with the member.

ITEM 43. Amend rule 441—83.60(249A), definition of “Service plan,” as follows: "Service plan" means a written consumer-centeredperson-centered, outcome-based plan of services developed using an interdisciplinary process,which is written by the member’s case manager with input and direction from the member and which addresses all relevant services and supports being provided. It may involve more than one provider.The service plan is developed by the interdisciplinary team, which includes the member and, if appropriate, the member’s legal representative, member’s family, service providers, and others directly involved with the member.

ITEM 44. Amend rule 441—83.81(249A), definition of “Service plan,” as follows: "Service plan" means a written consumer-centeredperson-centered, outcome-based plan of services developed using an interdisciplinary process,which is written by the member’s case manager with input and direction from the member and which addresses all relevant services and supports being provided. It may involve more than one provider.The service plan is developed by the interdisciplinary team, which includes the member and, if appropriate, the member’s legal representative, member’s family, service providers, and others directly involved with the member.

ITEM 45. Amend rule 441—83.101(249A), definition of “Service plan,” as follows: "Service plan" means a written consumer-centeredperson-centered, outcome-based plan of services developed using an interdisciplinary processwhich is written by the member’s case manager with input and direction from the member and which addresses all relevant services and supports being provided. It may involve more than one provider.The service plan is developed by the interdisciplinary team, which includes the member and, if appropriate, the member’s legal representative, member’s family, service providers, and others directly involved with the member.

ITEM 46. Amend rule 441—83.121(249A), definition of “Service plan,” as follows: "Service plan" means a written, consumer-centeredperson-centered, outcome-based plan of services developed by the consumer’s interdisciplinary teamthat is written by the member’s case manager with input and direction from the member and that addresses all relevant services and supports being provided. The service plan may involve more than one provider.The service plan is developed by the interdisciplinary team, which includes the member and, if appropriate, the member’s legal representative, member’s family, service providers, and others directly involved with the member. [Filed 6/13/18, effective 8/8/18][Published 7/4/18]Editor’s Note: For replacement pages for IAC, see IAC Supplement 7/4/18.ARC 3875CInspections and Appeals Department[481]Adopted and Filed

Rule making related to economic assistance fraud bureau

The Inspections and Appeals Department hereby rescinds Chapter 74, “Economic Assistance Fraud Bureau,” Iowa Administrative Code.Legal Authority for Rule Making This rule making is adopted under the authority provided in Iowa Code sections 10A.104 and 10A.401 to 10A.403.State or Federal Law Implemented This rule making implements, in whole or in part, Iowa Code sections 10A.104 and 10A.401 to 10A.403.Purpose and Summary This adopted rule making is the result of a comprehensive review of the Department’s Investigations Division rules. Another rule making (published as ARC 3792C, IAB 5/9/18) combines the content of current Chapter 74 with that of Chapter 72 to create a new chapter that more clearly and accurately describes the work of the Investigations Division’s Economic Fraud Control Bureau. Therefore, current Chapter 74 is obsolete and unnecessary.Public Comment and Changes to Rule Making Notice of Intended Action for this rule making was published in the Iowa Administrative Bulletin on May 9, 2018, as ARC 3779C. No public comments were received. No changes from the Notice have been made.Adoption of Rule Making This rule making was adopted by the Department on June 13, 2018.Fiscal Impact This rule making has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rule making, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rule making would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to 481—Chapter 6.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rule making by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rule making at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rule making will become effective on August 8, 2018. The following rule-making action is adopted:

ITEM 1. Rescind and reserve 481—Chapter 74. [Filed 6/13/18, effective 8/8/18][Published 7/4/18]Editor’s Note: For replacement pages for IAC, see IAC Supplement 7/4/18.ARC 3876CProfessional Licensure Division[645]Adopted and Filed

Rule making related to physical therapist and occupational therapist supervision

The Board of Physical and Occupational Therapy hereby amends Chapter 200, “Licensure of Physical Therapists and Physical Therapist Assistants,” Chapter 203, “Continuing Education for Physical Therapists and Physical Therapist Assistants,” and Chapter 206, “Licensure of Occupational Therapists and Occupational Therapy Assistants,” Iowa Administrative Code.Legal Authority for Rule Making This rule making is adopted under the authority provided in Iowa Code chapters 148A and 148B and Iowa Code sections 147.76 and 272C.3.State or Federal Law Implemented This rule making implements, in whole or in part, Iowa Code chapters 148A and 148B.Purpose and Summary The amendments revise the supervision requirements for physical therapy and occupational therapy, add requirements for physical therapy and occupational therapy supervision by telehealth, revise the limit on the number of physical therapist assistants who can be supervised by a physical therapist, remove the maximum of physical therapist delegation based on the patient’s health care residency or admission status, add new requirements for the minimum frequency of a physical therapist’s interaction with a client and revise the continuing education requirements for supervising physical therapy students for clinical education.Public Comment and Changes to Rule Making Notice of Intended Action for this rule making was published in the Iowa Administrative Bulletin on April 25, 2018, as ARC 3762C. A public hearing was held on May 15, 2018, at 8 a.m. in the Fifth Floor Board Conference Room 526, Lucas State Office Building, Des Moines, Iowa. Two individuals attended and were in support of the amendments. One comment was received in support of the amendments. No changes from the Notice have been made.Adoption of Rule Making This rule making was adopted by the Board on June 8, 2018.Fiscal Impact This rule making has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rule making, no impact on jobs has been found.Waivers A waiver provision is not included in this rule making because all administrative rules of the professional licensure boards in the Professional Licensure Division are subject to the waiver provisions accorded under 645—Chapter 18.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rule making by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rule making at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rule making will become effective on August 8, 2018. The following rule-making actions are adopted:

ITEM 1. Rescind rule 645—200.6(272C) and adopt the following new rule in lieu thereof:

645—200.6(147) Delegation by a supervising physical therapist. A supervising physical therapist may delegate the performance of physical therapy services to a physical therapist assistant only if done in accordance with the statutes and rules governing the practice of physical therapy. A physical therapist assistant may assist in the practice of physical therapy only to the extent allowed by the supervising physical therapist. The supervisory requirements stated in this rule are minimal. It is the professional responsibility and duty of the supervising physical therapist to provide the physical therapist assistant with more supervision if deemed necessary in the supervising physical therapist’s professional judgment. 200.6(1) Supervision requirements. A supervising physical therapist who delegates the performance of physical therapy services to a physical therapist assistant shall provide supervision to the physical therapist assistant at all times when the physical therapist assistant is providing delegated physical therapy services. Supervision means that the physical therapist shall be readily available on site or telephonically anytime the physical therapist assistant is providing physical therapy services so that the physical therapist assistant may contact the physical therapist for advice, assistance, or instruction. 200.6(2) Functions that cannot be delegated. The following are functions that only a physical therapist may provide and that cannot be delegated to a physical therapist assistant: a. Interpretation of referrals; b. Initial physical therapy evaluation and reevaluations; c. Identification, determination, or modification of patient problems, goals, and plans of care; d. Final discharge evaluation and establishment of a discharge plan; e. Delegation of and instruction in the physical therapy services to be rendered by a physical therapist assistant or unlicensed assistive personnel including, but not limited to, specific tasks or procedures, precautions, special problems, and contraindicated procedures; and f. Timely review of documentation, reexamination of the patient, and revision of the plan of care when indicated. 200.6(3) Physical therapist responsibilities. At all times, the supervising physical therapist shall be responsible for the physical therapy plan of care and for all physical therapy services provided, including all physical therapy services delegated to a physical therapist assistant. In addition, the supervising physical therapist shall: a. Be responsible for the evaluation and development of a plan of care for use by the physical therapist assistant; and b. Not delegate a physical therapy service that exceeds the competency or skill set of the physical therapist assistant; and c. Ensure that a physical therapist assistant holds an active physical therapist assistant license issued by the board; and d. Ensure that a physical therapist assistant is aware of how the supervising physical therapist can be contacted telephonically when the physical therapist is not providing on-site supervision; and e. Arrange for an alternate physical therapist to provide supervision when the physical therapist has scheduled or unscheduled absences during time periods in which a physical therapist assistant will be providing delegated physical therapy services; and f. Ensure that a physical therapist assistant is informed when a patient’s plan of care is transferred to a different supervising physical therapist; and g. Directly participate in physical therapy services upon the physical therapist assistant’s request for a reexamination, when a change in the plan of care is needed, prior to any planned discharge, and in response to a change in the patient’s medical status; and h. Hold regularly scheduled meetings with the physical therapist assistant to evaluate the physical therapist assistant’s performance, assess the progress of a patient, and make changes to the plan of care as needed. The frequency of meetings should be determined by the supervising physical therapist based on the needs of the patient, the supervisory needs of the physical therapist assistant, and any planned discharge. The supervising physical therapist shall provide direction and instruction to the physical therapist assistant that are adequate to ensure the safety and welfare of the patient. 200.6(4) Physical therapist assistant responsibilities. A physical therapist assistant shall only provide physical therapy services under the supervision of a physical therapist. In addition, the physical therapist assistant shall: a. Only provide physical therapy services that have been delegated by the supervising physical therapist; and b. Only provide physical therapy services that are within the competency and skill set of the physical therapist assistant; and c. Consult the supervising physical therapist if the physical therapist assistant believes that any procedure is not in the best interest of the patient; and d. Contact the supervising physical therapist regarding any change or lack of change in a patient’s condition that may require assessment by the supervising physical therapist; and e. Refer inquiries that require interpretation to the supervising physical therapist; and f. Ensure that the identification of the supervising physical therapist is included in the documentation for any visit when physical therapy services were provided by the physical therapist assistant; and g. Only sign a treatment record if the provision of physical therapy services was done in accordance with the statutes and rules governing the practice of a physical therapist assistant. 200.6(5) Ratio. A physical therapist shall determine the number of physical therapist assistants who can be supervised safely and competently and shall not exceed that number; but in no case shall a physical therapist supervise more than four physical therapist assistants per calendar day. A physical therapist assistant who performs any delegated physical therapy services on behalf of the supervising physical therapist on a particular day shall be counted in determining the maximum ratio, regardless of the location of the physical therapist assistant or the number of patients treated. 200.6(6) Minimum frequency of direct participation by a supervising physical therapist. A supervising physical therapist shall use professional judgment to determine how frequently the physical therapist needs to directly participate in physical therapy services when delegating to a physical therapist assistant, the frequency of which shall be based on the needs of the patient. Direct participation can occur through an in-person or telehealth visit. The supervising physical therapist shall ensure that the patient record clearly indicates which visits included direct participation by the supervising physical therapist. The following are the minimum standards, which are expected to be exceeded when dictated by the supervising physical therapist’s professional judgment, for the required frequency of direct participation by the supervising physical therapist when physical therapy services involve delegation to a physical therapist assistant: a. Hospital inpatient and skilled nursing.For hospital inpatients and skilled nursing patients, a supervising physical therapist must directly participate in physical therapy services a minimum of once per calendar week. A calendar week is defined as Sunday through Saturday. b. All other settings.In all other settings, a supervising physical therapist must directly participate in the provision of physical therapy services at least every eighth visit or every 30 calendar days, whichever comes first. 200.6(7) Unlicensed assistive personnel. A physical therapist is responsible for patient care provided by unlicensed assistive personnel under the physical therapist’s supervision. A physical therapist is responsible for ensuring the qualifications of any unlicensed assistive personnel and shall maintain written documentation of their education or training. Unlicensed assistive personnel may assist a physical therapist assistant in the delivery of physical therapy services only if the physical therapist assistant maintains in-sight supervision of the unlicensed assistive personnel and the physical therapist assistant is primarily and significantly involved in the patient’s care. Unlicensed assistive personnel shall not provide independent patient care unless each of the following standards is satisfied: a. The physical therapist has direct participation in the patient’s treatment or evaluation, or both, each treatment day; b. Unlicensed assistive personnel may provide independent patient care only while under the on-site supervision of the physical therapist; c. Documentation made in a physical therapy record by unlicensed assistive personnel shall be cosigned by the physical therapist; and d. The physical therapist provides periodic reevaluation of any unlicensed assistive personnel’s performance in relation to the patient.

ITEM 2. Amend subparagraph 203.3(2)"a" as follows: (4) Directly supervising students for clinical education if the physical therapist or physical therapist assistant who is supervising is an American Physical Therapy Association Advanced Credentialed Clinical Instructor and if the studentstudents being supervised isare from an accredited physical therapist or physical therapist assistant program and isare participating in a full-time clinical experience (defined as approximately 40 hours per week, ranging from 1 to 18 weeks). One hour will be awarded for every 160 contact hours of supervision. A maximum of 8 hours for a physical therapist and 4 hours for a physical therapist assistant may be awarded per biennium. The physical therapist or physical therapist assistant must have documentation from the accredited educational program indicating the number of hours spent supervising a student.

ITEM 3. Amend paragraphs 206.8(2)"a" and 206.8(2)"b" as follows: a. Provide supervision to a licensed OTA, OT limited permit holder and OTA limited permit holderanytime occupational therapy services are rendered. Supervision may be provided on site or through the use of telecommunication or other technology. b. Provide on-site supervision or supervision by telecommunication as long as the occupational therapy services are rendered in accordance with the provisions of subrule 206.8(5).Ensure that every licensed OTA, OT limited permit holder and OTA limited permit holder being supervised is aware of who the supervisor is and how the supervisor can be contacted anytime occupational therapy services are rendered.

ITEM 4. Amend subrule 206.8(5) as follows: 206.8(5) TheMinimum frequency of OT interaction. At a minimum, an OT mustdirectly participate in treatment including direct face-to-face patient contact, either in person or through a telehealth visit, every twelfth visit or 60 calendar days, whichever comes first, for all patients regardless of setting and must document each visit.The occupational therapist shall participate at a higher frequency when the standard of care dictates.

ITEM 5. Amend paragraph 206.8(6)"a" as follows: a. The occupational therapy assistant: (1) Shall provide only those services for which the OTA has the necessary skills and shall consult the supervising occupational therapist if the procedures are believed not to be in the best interest of the patient; (2) Shall gather data relating to the patient’s disability during screening, but shall not interpret the patient information as it pertains to the plan of care; (3) Shall communicate any change, or lack of change, which occurs in the patient’s condition and which may need the assessment of the OT; (4) Shall provide occupational therapy services only under the supervision of the occupational therapist; (5) Shall provide treatment only after evaluation and development of a treatment plan by the occupational therapist; (6) Shall refer inquiries that require interpretation of patient information to the occupational therapist; (7) Shall have on-site or immediate telecommunicative supervision as long as the occupational therapy services are rendered in accordance with the provisions of subrule 206.8(5)Shall be supervised by an occupational therapist, either on site or through the use of telecommunication or other technology, at all times when occupational therapy services are being rendered; (8) May receive supervision from any number of occupational therapists;and (9) Shall maintain documentation of supervision on a daily basis that shall be available for review upon request of the boardShall record on every patient chart the name of the OTA’s supervisor for each treatment session. [Filed 6/11/18, effective 8/8/18][Published 7/4/18]Editor’s Note: For replacement pages for IAC, see IAC Supplement 7/4/18.ARC 3877CRegents Board[681]Adopted and Filed

Rule making related to traffic and parking at universities

The Board of Regents hereby amends Chapter 4, “Traffic and Parking at Universities,” Iowa Administrative Code.Legal Authority for Rule Making This rule making is adopted under the authority provided in Iowa Code sections 262.9, 262.69 and 805.8A.State or Federal Law Implemented This rule making implements, in whole or in part, Iowa Code section 262.9.Purpose and Summary The amendment in Item 1 revises the definition of “bicycle” to include an electric/battery-powered bicycle with a motor of less than 750 watts. The amendment in Item 2 revises subrule 4.30(4) regarding parking privileges for persons with disabilities to clarify the requirements for obtaining a permit to park in facilities designated for use by persons with disabilities. The amendment in Item 3 revises subrule 4.31(2) regarding sanctions by increasing the monetary sanction imposed for certain violations of parking rules. Public Comment and Changes to Rule Making Notice of Intended Action for this rule making was published in the Iowa Administrative Bulletin on March 14, 2018, as ARC 3670C. No public comments were received. No changes from the Notice have been made.Adoption of Rule Making This rule making was adopted by the Board on June 7, 2018.Fiscal Impact This rule making has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rule making, no impact on jobs has been found.Waivers Any person who believes that the application of the discretionary provisions of this rule making would result in hardship or injustice to that person may petition the Board of Regents for a waiver of the discretionary provisions, if any, pursuant to rule 681—19.18(17A).Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rule making by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rule making at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rule making will become effective on August 8, 2018. The following rule-making actions are adopted:

ITEM 1. Amend rule 681—4.2(262), definition of “Bicycle,” as follows: "Bicycle" means any wheeled vehiclewhich has two or three wheels and fully operable pedals and which is not self-propelled and which isa traditional bicycle designedsolely to be pedaled by the rider.An electric/battery-powered bicycle designed not only to be pedaled by the rider but also propelled by an electric motor of less than 750 watts (one horsepower) may be treated as a bicycle and may be parked at bicycle racks.

ITEM 2. Amend subrule 4.30(4) as follows: 4.30(4) Persons with disabilities. Persons with disabilities will be granted parking privileges in parking facilities designated for use by persons with disabilities. Persons with disabilities may apply for special parking privileges for up to six months upon issuance of a letter by the director of student health service, or the director’s designee; rehabilitation counselor, student counseling service; or by a personal physician, indicating the character, extent, probable duration of the disability, and certifying the need for special parking. After an initial six months, a faculty or staff member or a studentPersons must present a currently valid department of transportation parking permit for persons with disabilities to renewobtain the campus permit. Parking facilities designated for persons with disabilities shall be so regulated all hours of all days.

ITEM 3. Amend subrule 4.31(2) as follows: 4.31(2) Sanction. Reasonable monetary sanctions may be imposed for violation of these rules. The amount of the sanction approved by the board of regents, state of Iowa, is as follows: OffensesSanctions for Each Offense Altering, forging or counterfeiting any parking permit (4.30(5)) $150 Unauthorized possession and use of a parking permit (4.30(5)) $150 Failure to comply with signs regulating campus traffic flow (681—4.27(262)) $30 Driving on campus walks or lawns (4.27(6), 4.27(8)) $30 Driving on closed streets (4.27(3)) $30 Driving on bike paths (4.27(7)) $30 Access to restricted areas by means other than established gate openings (4.29(5)) $30 Moving or driving around a barricade (4.29(5)) $30 Improper use of gate card (681—4.29(262)) $20 Illegal parking (4.29(7)) $40$50 Improper parking (4.29(7)) $15$25 Overtime parking at meters (4.29(2)) $10$15 Parking without an appropriate permit in a reserved lot or space (681—4.29(262)) $30$50 Improper affixing or failure to display a permit (681—4.28(262)) $5 Failure to purchase a parking receipt (4.29(2)) $10$15 Improper parking in a space or stall designated for persons with disabilities (681—4.29(262), 4.30(4)) $200 Failure to display a current bicycle registration (4.28(4)) $5 Bicycle improperly parked (4.29(9)) $7.50 Improper use of roller skates, roller blades or skateboard (4.27(9)) $25 All other violations $15Violations that continue for more than one hour may receive additional sanctions.Sanctions may be assessed against the owner or operator of the vehicle involved in each violation or against any person in whose name the vehicle is registered or parking privileges have been granted and may be charged to the violator’s university account. Sanctions may be added to student tuition bills or may be deducted from student deposits or from the salaries or wages of employees or from other funds in the possession of the university. [Filed 6/7/18, effective 8/8/18][Published 7/4/18]Editor’s Note: For replacement pages for IAC, see IAC Supplement 7/4/18.ARC 3878CTransportation Department[761]Adopted and Filed

Rule making related to highway bridge program and surface transportation block grant program

The Department of Transportation hereby amends Chapter 161, “Federal-Aid Highway Bridge Program,” and Chapter 162, “Surface Transportation Block Grant Program,” Iowa Administrative Code.Legal Authority for Rule Making This rule making is adopted under the authority provided in Iowa Code sections 307.12 and 307A.2(4).State or Federal Law Implemented This rule making implements, in whole or in part, Iowa Code sections 307.44 and 313.4(1).Purpose and Summary The Department is amending Chapters 161 and 162 to add language stating that primary road funds may be swapped with Surface Transportation Block Grant (STBG) funds allocated to cities and counties for road and bridge construction projects. The highway bridge program is funded through STBG funds. These amendments are necessary to make the rules consistent with 2017 Iowa Acts, chapter 13, which amended Iowa Code section 313.4(1) and allows for the swap of STBG funds. The following list explains the additional amendments to Chapters 161 and 162:

Amend the title of Chapter 161 by striking “federal-aid” and adding “for cities and counties.” The change in the title is being made to clarify that the highway bridge program is for cities and counties and that with the addition of the swap language, the funds will no longer be federal aid.

Strike “federal-aid” within rule 761—161.1(307) for consistency.

Amend rules 761—161.2(307) and 761—162.2(307) to add references to the Department’s website where additional information may be found about the swap process.

Amend rule 761—161.3(307) to add the words “Block Grant” to the name of the Surface Transportation Program and to amend the wording of the federal citation for consistency.

Amend the implementation sentences within both chapters to add references to Iowa Code section 313.4(1). The implementation sentence for Chapter 162 is also amended to strike the reference to 2016 Iowa Acts, Senate File 2320, and to add a reference to Iowa Code section 307.44 for consistency.

Correct the parenthetical implementation statutes of existing rules within Chapter 162 to reference Iowa Code chapter 307 and to strike the reference to 2016 Iowa Acts, Senate File 2320.

Iowa Code section 313.4(1)“c” allows the Transportation Commission to allocate money from the primary road fund to be swapped. The Transportation Commission approved the amendments to Chapters 161 and 162 at its June 12, 2018, meeting. Public Comment and Changes to Rule Making Notice of Intended Action for this rule making was published in the Iowa Administrative Bulletin on May 9, 2018, as ARC 3777C. No public comments or requests for oral presentations were received. No changes from the Notice have been made.Adoption of Rule Making This rule making was adopted by the Department and the Transportation Commission on June 13, 2018.Fiscal Impact 2017 Iowa Acts, chapter 13, amended Iowa Code section 313.4(1)“c” to increase efficiency and reduce project costs. The Department is implementing this legislation, and because it is early in the implementation stage, swap projects have not yet been constructed. Therefore, a fiscal impact cannot be determined, but the Department believes the impact will be positive. Jobs Impact After analysis and review of this rule making, the Department has determined that these amendments may have a positive impact on private sector jobs and employment opportunities in Iowa. These amendments will result in cost savings that will in turn be reinvested into additional construction projects throughout the state. The additional projects should increase the number of jobs for the contracting and consulting industry. Waivers Any person who believes that the person’s circumstances meet the statutory criteria for a waiver may petition the Department for a waiver under 761—Chapter 11.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rule making by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rule making at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rule making will become effective on August 8, 2018. The following rule-making actions are adopted:

ITEM 1. Amend 761—Chapter 161, title, as follows:FEDERAL-AID HIGHWAY BRIDGE PROGRAMFOR CITIES AND COUNTIES

ITEM 2. Amend rule 761—161.1(307) as follows:

761—161.1(307) Purpose. The purpose of these rules is to establish requirements for the counties’ and cities’ federal-aid highway bridge program, in accordance with Iowa Code section 307.44.

ITEM 3. Amend rule 761—161.2(307) as follows:

761—161.2(307) Contact informationInformation. Questions regardingInformation relating to this chapter may be directed toobtained from the Office of Local Systems, Iowa Department of Transportation, 800 Lincoln Way, Ames, Iowa 50010; or on the department’s website at www.iowadot.gov.

ITEM 4. Amend rule 761—161.3(307) as follows:

761—161.3(307) Source of funds. The Surface TransportationBlock Grant Program established in Section 133 of Title 23 of the United States Code23 U.S.C. Section 133 provides for the use of federal funds to replace or rehabilitate public road bridges. The department, in consultation with county and city officials through their representative organizations, has dedicated a portion of these funds for replacement and rehabilitation of city and county bridges.

ITEM 5. Renumber rule 761—161.4(307) as 761—161.5(307).

ITEM 6. Adopt the following new rule 761—161.4(313):

761—161.4(313) Swapping of funds. Surface Transportation Block Grant funds allocated to city and county road or bridge construction projects may be swapped with primary road funds in accordance with Iowa Code section 313.4(1).

ITEM 7. Amend 761—Chapter 161, implementation sentence, as follows: These rules are intended to implement Iowa Code sectionsections307.44and 313.4(1).

ITEM 8. Amend rule 761—162.1(86GA,SF2320), parenthetical implementation statute, as follows:

761—162.1(86GA,SF2320307) Purpose.

ITEM 9. Amend rule 761—162.2(86GA,SF2320) as follows:

761—162.2(86GA,SF2320307) Contact informationInformation. Information relating to this chapter may be obtained from the Office of Program Management, Iowa Department of Transportation, 800 Lincoln Way, Ames, Iowa 50010; telephone (515)239-1661; or on the department’s website at www.iowadot.gov.

ITEM 10. Amend rule 761—162.3(86GA,SF2320), parenthetical implementation statute, as follows:

761—162.3(86GA,SF2320307) Source of funds.

ITEM 11. Amend rule 761—162.4(86GA,SF2320), parenthetical implementation statute, as follows:

761—162.4(86GA,SF2320307) Administration of funds.

ITEM 12. Renumber rule 761—162.4(307) as 761—162.5(307).

ITEM 13. Adopt the following new rule 761—162.4(313):

761—162.4(313) Swapping of funds. Surface Transportation Block Grant funds allocated to city and county road or bridge construction projects may be swapped with primary road funds in accordance with Iowa Code section 313.4(1).

ITEM 14. Amend 761—Chapter 162, implementation sentence, as follows: These rules are intended to implement 2016 Iowa Acts, Senate File 2320, section 4Iowa Code sections 307.44 and 313.4(1). [Filed 6/13/18, effective 8/8/18][Published 7/4/18]Editor’s Note: For replacement pages for IAC, see IAC Supplement 7/4/18.ARC 3879CTransportation Department[761]Adopted and Filed

Rule making related to reimbursable services and supplies

The Department of Transportation hereby amends Chapter 174, “Reimbursable Services and Supplies,” Iowa Administrative Code.Legal Authority for Rule Making This rule making is adopted under the authority provided in Iowa Code section 307.12.State or Federal Law Implemented This rule making implements, in whole or in part, Iowa Code section 307.12.Purpose and Summary This amendment concerns the list of the reimbursable services and supplies that counties and cities may request from the Department and pertains to structural analysis. The Department is clarifying paragraph 174.3(1)“a” because it was unclear as written.Public Comment and Changes to Rule Making Notice of Intended Action for this rule making was published in the Iowa Administrative Bulletin on May 9, 2018, as ARC 3776C. No public comments or requests for oral presentations were received. No changes from the Notice have been made.Adoption of Rule Making This rule making was adopted by the Department on June 13, 2018.Fiscal Impact This rule making has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rule making, no impact on jobs has been found.Waivers Any person who believes that the person’s circumstances meet the statutory criteria for a waiver may petition the Department for a waiver under 761—Chapter 11.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rule making by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rule making at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rule making will become effective on August 8, 2018. The following rule-making action is adopted:

ITEM 1. Amend paragraph 174.3(1)"a" as follows: a. Structural analysis: The department will provide standards,an initial load-rating analysis for standard bridge types issued by the department. The department will provide a detailed field inspection of an existing or proposed structure to determine condition or load-carrying capacity and advise on capacity calculations. [Filed 6/13/18, effective 8/8/18][Published 7/4/18]Editor’s Note: For replacement pages for IAC, see IAC Supplement 7/4/18.ARC 3880CTransportation Department[761]Adopted and Filed

Rule making related to aviation vertical infrastructure

The Department of Transportation hereby amends Chapter 700, “Aeronautics Administration,” Chapter 710, “Airport Improvement Program,” Chapter 715, “Air Service Development Program,” Chapter 716, “Commercial Service Vertical Infrastructure Program,” and Chapter 717, “General Aviation Vertical Infrastructure Program,” Iowa Administrative Code.Legal Authority for Rule Making This rule making is adopted under the authority provided in Iowa Code sections 307.12 and 328.12.State or Federal Law Implemented This rule making implements, in whole or in part, Iowa Code sections 8.57(5), 17A.3 and 328.12.Purpose and Summary The Department is correcting the spelling of “website” and the link to the Department’s website address in Chapters 700, 710, 715, 716, and 717. The Department is also amending Chapters 716 and 717 to correct citations to Iowa Code section 8.57(5) since this section was amended and renumbered. These corrections are included within the definition of “vertical infrastructure” in rules 761—716.2(328) and 761—717.2(328) and within both chapters’ implementation sentences.Public Comment and Changes to Rule Making Notice of Intended Action for this rule making was published in the Iowa Administrative Bulletin on April 25, 2018, as ARC 3755C. No public comments or requests for oral presentations were received. No changes from the Notice have been made.Adoption of Rule Making This rule making was adopted by the Department on June 12, 2018.Fiscal Impact This rule making has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rule making, no impact on jobs has been found.Waivers Any person who believes that the person’s circumstances meet the statutory criteria for a waiver may petition the Department for a waiver under 761—Chapter 11.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rule making by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rule making at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rule making will become effective on August 8, 2018. The following rule-making actions are adopted:

ITEM 1. Amend rule 761—700.2(17A) as follows:

761—700.2(17A) Information and forms. Program information, forms and application instructions are available on the department’s Web sitewebsite at www.iowadot.gov/aviationwww.iowadot.gov. Requests for such materials or assistance may also be made by calling the office of aviation at (515)239-1048. Submission of application materials shall be made according to the annual application instructions included in the application materials. The office of aviation mailing address is: Office of Aviation, Iowa Department of Transportation, 800 Lincoln Way, Ames, Iowa 50010. This rule is intended to implement Iowa Code section 17A.3.

ITEM 2. Amend rule 761—710.3(17A) as follows:

761—710.3(17A) Information and forms. Program information, forms and application instructions are available on the department’s Web sitewebsite at www.iowadot.gov/aviationwww.iowadot.gov. Requests for such materials or assistance may also be made by calling the office of aviation at (515)239-1048. Submission of application materials shall be made according to the annual application instructions included in the application materials. The office of aviation mailing address is: Office of Aviation, Iowa Department of Transportation, 800 Lincoln Way, Ames, Iowa 50010. This rule is intended to implement Iowa Code section 17A.3.

ITEM 3. Amend subrule 715.3(3) as follows: 715.3(3) Program information, instructions and application forms may be obtained from the department’s Web sitewebsite at www.iowadot.gov/aviationwww.iowadot.gov. Requests for such materials or assistance may also be made by calling the office of aviation at (515)239-1689. Submission of application materials shall be made according to the annual application instructions included in the application materials. The office of aviation mailing address is: Office of Aviation, Iowa Department of Transportation, 800 Lincoln Way, Ames, Iowa 50010.

ITEM 4. Amend rule 761—716.2(328), definition of “Vertical infrastructure,” as follows: "Vertical infrastructure" means the same as defined in Iowa Code section 8.57B8.57(5).

ITEM 5. Amend rule 761—716.3(328) as follows:

761—716.3(328) Information and forms. Program information, instructions, and forms are available on the department’s Web sitewebsite at www.iowadot.gov/aviationwww.iowadot.gov. Requests for such materials or assistance may also be made by calling the office of aviation at (515)239-1048. Submission of application materials shall be made according to the annual application instructions included in the application materials. The office of aviation mailing address is: Office of Aviation, Iowa Department of Transportation, 800 Lincoln Way, Ames, Iowa 50010.

ITEM 6. Amend 761—Chapter 716, implementation sentence, as follows: These rules are intended to implement Iowa Code sections 8.57B8.57(5) and 328.12.

ITEM 7. Amend rule 761—717.2(328), definition of “Vertical infrastructure,” as follows: "Vertical infrastructure" means the same as defined in Iowa Code section 8.57B8.57(5).

ITEM 8. Amend rule 761—717.3(328) as follows:

761—717.3(328) Information and forms. Program information, instructions, and application forms may be obtained from the department’s Web sitewebsite at www.iowadot.gov/aviationwww.iowadot.gov. Requests for such materials or assistance may also be made by calling the office of aviation at (515)239-1048. Submission of application materials shall be made according to the annual application instructions included in the application materials. The office of aviation mailing address is: Office of Aviation, Iowa Department of Transportation, 800 Lincoln Way, Ames, Iowa 50010.

ITEM 9. Amend 761—Chapter 717, implementation sentence, as follows: These rules are intended to implement Iowa Code sections 8.57B8.57(5) and 328.12. [Filed 6/12/18, effective 8/8/18][Published 7/4/18]Editor’s Note: For replacement pages for IAC, see IAC Supplement 7/4/18.ARC 3881CTransportation Department[761]Adopted and Filed

Rule making related to railroad transportation and safety

The Department of Transportation hereby amends Chapter 800, “Items of General Application for Railroads,” Chapter 810, “Railroad Safety Standards,” and Chapter 813, “Close-Clearance Warning Signs Along Railroad Tracks,” Iowa Administrative Code.Legal Authority for Rule Making This rule making is adopted under the authority provided in Iowa Code sections 307.12, 327F.13, 327F.39 and 327G.24.State or Federal Law Implemented This rule making implements, in whole or in part, Iowa Code sections 307.26, 321.449A, 327C.2, 327C.4, 327C.38, 327C.41, 327F.13, 327F.39 and 327G.24.Purpose and Summary The amendments to Chapter 800 correct a due date for annual reports, update the adoption date of a federal regulation, and provide a source for federal citations. The following list further explains the amendments to the chapter:

Item 1 changes the due date for railroad annual reports from “no later than March 31” to “on or before April 1,” which makes the deadline in subrules 800.4(1) and 800.4(2) consistent with the reporting deadline railroads must meet under 49 Code of Federal Regulations (CFR) Part 1241. This item also corrects the implementation sentence for rule 761—800.4(327C) by striking Iowa Code sections 327C.28 and 327C.43 because they are unnecessary.

Item 2 adopts the current CFR dated October 1, 2017, for 49 CFR Part 1152. Iowa Code section 327G.24 requires the Department to adopt rules consistent with the Surface Transportation Board’s Abandonment and Discontinuance of Rail Lines and Rail Transportation promulgated under United States Code, Title 49, and found in 49 CFR Part 1152.

Item 3 adds a new rule 761—800.21(327G) that provides sources where the federal citations may be found.

The amendments to Chapter 810 update the adoption date of a federal regulation, provide a source for the federal citation, add a new rule which concerns worker transportation rest periods and make changes for clarity and consistency. The following list further explains the amendments to the chapter:

Item 4 adopts the current CFR dated October 1, 2017, for 49 CFR Part 213. Iowa Code section 327C.4 requires the Department to inspect railroads’ track for safe operations. To accomplish this, the Department is a member of the Federal Railroad Administration (FRA) State Rail Safety Participation Program, which provides some benefits to states in training and technical proficiency in understanding and applying federal standards. The FRA’s track safety standards set out standards for track safety applicable to all railroads nationwide and are found in 49 CFR Part 213.

Item 4 also adds new subrule 810.1(2) to provide sources where the federal regulations may be found and updates the rule’s implementation sentence by striking Iowa Code section 327C.2 because it is unnecessary.

Item 5 amends rule 761—810.5(327F), which concerns heating systems within motor vehicles used to transport railroad workers. The amendments make the reporting procedure for a violation more consistent with new rule 761—810.6(327F) and revise the rule for clarity.

Item 6 adopts new rule 761—810.6(327F). This new rule implements Iowa Code section 327F.39, which sets out the enforcement for a violation of railroad worker transportation company drivers’ allowable hours of service. Certain railroads contract with railroad worker transportation companies to transport rail crews to and from work locations on a railroad, often to remote locations and at all hours. The railroad worker transportation companies normally use motor vehicles of a size smaller than those that fall under federal regulations for motor carriers. To cover this gap and ensure the safety of railroad workers being transported, Iowa Code section 321.449A establishes requirements for the allowable time that a railroad worker transportation company driver can be on duty and the driver’s required rest periods, similar to federal regulations for motor carriers, and Iowa Code section 327F.39 prohibits both railroad transportation companies and railroad companies from requiring a driver to violate Iowa Code section 321.449A and requires the Department to make, enter, and serve upon the owner of the motor vehicle an order as necessary to protect the safety of workers transported in the motor vehicle. To implement Iowa Code sections 321.449A and 327F.39, new rule 761—810.6(327F) states that violations of Iowa Code section 321.449A are to be reported to the Department and describes how the Department will handle that report and any possible violation, including issuance of a decision and any necessary orders.

Items 5 and 6 both provide that potential violations of motor vehicle requirements for the transportation of railroad workers may be investigated by the director of the Office of Rail Transportation or the director’s designee, which may include peace officers in the Office of Motor Vehicle Enforcement. These provisions are intended to ensure the prompt and effective investigation of potential violations by recognizing that the Office of Rail Transportation has limited staff to conduct investigations and that peace officers serving as motor vehicle enforcement officers are well-positioned and trained to conduct inspections regarding motor vehicle equipment requirements and driver hours of service requirements.

The amendment to Chapter 813 in Item 7 updates the Department’s website reference to be consistent with changes made in other chapters of the Department’s rules. The Department’s main website address is used instead of a more specific link that may change. Proposed federal regulations are published in the Federal Register (FR) to allow a period for public comment, and after adoption, the final regulations are published in the FR. To ensure the consistency required by statute, the Department adopts the specified parts of 49 CFR as adopted by the Surface Transportation Board and the FRA. The following list provides a specific description of the amendments to the federal regulations that have become final and effective from September 30, 2016, to October 1, 2017, and that affect 761—Chapters 800 and 813: Amendment to the Surface Transportation Board Abandonment Regulations Part 1152 (FR Vol. 82, No. 127, Pages 30997-31008, 07-05-2017) This final rule amends the Surface Transportation Board’s regulations to change its rules pertaining to offers of financial assistance to improve the process and protect it against abuse. The rule amendment requires a party making an offer of financial assistance (purchase or subsidy) during a railroad abandonment proceeding to formally express intent of an offer and prove itself preliminarily financially responsible. Effective date: July 29, 2017. Amendment to the FRA’s Track Safety Standards Part 213 (FR Vol. 82, No. 62, Pages 16127-16136, 04-03-2017 and FR Vol. 82, No. 70, Page 17765, 04-13-2017) Both final rules amend the civil penalties for a violation of a federal railroad safety law, FRA safety regulation or order as required by the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. Effective dates: April 3, 2017, and April 13, 2017.Public Comment and Changes to Rule Making Notice of Intended Action for this rule making was published in the Iowa Administrative Bulletin on April 25, 2018, as ARC 3756C. No public comments or requests for oral presentations were received. No changes from the Notice have been made.Adoption of Rule Making This rule making was adopted by the Department on June 12, 2018.Fiscal Impact The fiscal impact cannot be determined. The federal regulations adopted by this rule-making action were subject to fiscal impact review by either the FRA or the Surface Transportation Board when enacted and were determined not to be cost-prohibitive. Jobs Impact After analysis and review of this rule making, no impact on jobs has been found.Waivers Any person who believes that the person’s circumstances meet the statutory criteria for a waiver may petition the Department for a waiver under 761—Chapter 11.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rule making by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rule making at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rule making will become effective on August 8, 2018. The following rule-making actions are adopted:

ITEM 1. Amend rule 761—800.4(327C) as follows:

761—800.4(327C) Annual reports. 800.4(1) A railroad company submitting an annual report to the Surface Transportation Board under 49 CFR Part 1241 shall submit a copy of this report to the department no later than March 31on or before April 1 following the close of the calendar year. Included with this report shall be a “State Statistics” report which shall include the following: annual data on additions and deletions of mileage within the state; mileage operated within the state at the end of the year; railway operating revenues earned within the state; statistics on rail line operations within the state including locomotive unit-miles, car-miles and ton-miles; revenue freight carried within the state by commodity class; and a freight density map showing gross ton-miles for the railroad company’s system within the state. 800.4(2) A railroad company not required to submit an annual report to the Surface Transportation Board under 49 CFR Part 1241 shall submit an annual report to the department on Form 010030 no later than March 31on or before April 1 following the close of the calendar year. This rule is intended to implement Iowa Code sections 327C.28, 327C.38,and 327C.41 and 327C.43.

ITEM 2. Amend subrule 800.20(1) as follows: 800.20(1) 49 CFR Part 1152 contains the regulations governing the abandonment and discontinuance of railroad lines and rail transportation under 49 U.S.C. 10903 et seq. This part also contains the regulations and procedures for the acquisition or use of railroad rights-of-way proposed for abandonment for interim trail use and rail banking pursuant to 16 U.S.C. 1247(d).For the purpose of this rule, this part is adopted as of October 1, 20022017.

ITEM 3. Adopt the following new rule 761—800.21(327G):

761—800.21(327G) Federal citations. Copies of the federal code or regulations cited in this chapter are available from the state law library or online at www.gpo.gov. This rule is intended to implement Iowa Code section 327G.24.

ITEM 4. Amend rule 761—810.1(327C) as follows:

761—810.1(327C) Tracksafety standards. 810.1(1) Standards. The department adopts the railroad track safety standards contained in 49 CFR Part 213 (October 1, 20022017). 810.1(2) Obtaining copies of regulations. Copies of the federal regulations are available from the state law library or online at www.gpo.gov. This rule is intended to implement Iowa Code sections 307.26, 327C.2, and 327C.4.

ITEM 5. Amend rule 761—810.5(327F) as follows:

761—810.5(327F) Worker transportationmotor vehicle equipment. 810.5(1) Heater requirement. Pursuant to Iowa Code subsection 327F.39(4), a motor vehicle used to transport railroad workers shall be equipped with a heating system that maintains a reasonable comfort level in the vehicle spaces where the workers are required to ride. The heating system shall comply with the safety standards established in 49 CFR 393.77, as adopted in rule 761—520.1(321). 810.5(2) Report procedure. a. A person shall report an alleged violation in writing to the responsible railroad company at its corporate headquarters. b. If within 30 days the railroad company does not respond or if the response is unsatisfactory, the person may report the alleged violation to the department at the following address: Office of Rail Transportation, Iowa Department of Transportation, 800 Lincoln Way, Ames, Iowa 50010. b. c. The report shall be written and shall include the date, time, weather conditions and all facts pertinent to the alleged violation. The report shall also include a copy of the railroad’s response or, if the railroad failed to respond, proof of the date the report was submitted to the railroad. c. d. The departmentdirector of the office of rail transportation or the director’s designee may request additional information from the personsubmitting the report, the railroad worker transportation company or the railroad. e. The director of the office of rail transportation or the director’s designee, which may include peace officers in the office of motor vehicle enforcement, may investigate the alleged violation. f. The director of the office of rail transportation or the director’s designee shall issue a decision within 20 days after the report is received by the departmentof receipt of the report or20 days afterreceipt of therequested additional information is received. The decision may include any order as necessary to enforce the requirements of Iowa Code section 327F.39, as set forth in Iowa Code section 327F.39(6). g. The department shall notify the person and the railroad of the decision, which is the final decision of the department. h. The decision is final agency action. This rule is intended to implement Iowa Code section 327F.39.

ITEM 6. Adopt the following new rule 761—810.6(327F):

761—810.6(327F) Worker transportation rest periods. 810.6(1) Requirements. A railroad worker transportation company and railroad worker transportation company driver shall comply with the rest period requirements of Iowa Code sections 321.449A and 327F.39(5). 810.6(2) Report procedure. a. A person shall report an alleged violation in writing to the department at the following address: Office of Rail Transportation, Iowa Department of Transportation, 800 Lincoln Way, Ames, Iowa 50010. b. The report shall include the date, time, circumstances and any evidence of an alleged violation, and the name and contact information of the driver employed by the railroad worker transportation company or the railroad worker transportation company alleged to require a driver to violate the provisions of Iowa Code section 321.449A or 327F.39(5). c. The director of the office of rail transportation or the director’s designee may request additional information from the driver, railroad worker transportation company or railroad. d. The director of the office of rail transportation or the director’s designee, which may include peace officers in the office of motor vehicle enforcement, may investigate the alleged violation. e. The director of the office of rail transportation or the director’s designee shall issue a decision within 60 days of receipt of the report or 60 days after receipt of the requested additional information. The decision may include any order as necessary to enforce the requirements of Iowa Code section 327F.39, as set forth in Iowa Code section 327F.39(6). f. The department shall notify the driver and the railroad worker transportation company of the decision. g. The decision is final agency action. This rule is intended to implement Iowa Code sections 321.449A and 327F.39.

ITEM 7. Amend subrule 813.10(4) as follows: 813.10(4) Form 291303 is available on the department’s Internet Web sitewebsite at http://www.iowadot.gov/forms/index.htmwww.iowadot.gov or from the office of rail transportation. [Filed 6/13/18, effective 8/8/18][Published 7/4/18]Editor’s Note: For replacement pages for IAC, see IAC Supplement 7/4/18.ARC 3882CTransportation Department[761]Adopted and Filed

Rule making related to notification of railroad accidents and incidents

The Department of Transportation hereby amends Chapter 802, “Reporting of Railroad Accidents/Incidents,” Iowa Administrative Code.Legal Authority for Rule Making This rule making is adopted under the authority provided in Iowa Code section 307.12.State or Federal Law Implemented This rule making implements, in whole or in part, Iowa Code sections 327C.37 and 327C.41.Purpose and Summary This rule making clarifies and expands the notification to the Department for certain railroad accidents and incidents. Timely notification of certain railroad accidents and incidents allows the Department’s Office of Rail Transportation to respond to immediate public safety risks as well as to identify emerging safety issues or trends that may need attention. The following list further explains the amendments:

The title of Chapter 802, “Reporting of Railroad Accidents/Incidents,” is changed to “Notification of Railroad Accidents/Incidents.” The word “reporting” is replaced with “notification” and the word “report” is replaced with “notice” within rule 761—802.2(327C). These changes were made within this chapter to be more consistent with language in Iowa Code section 327C.37 and to clarify that the Department needs to be notified of an accident or incident.

Iowa Code section 327C.37 requires corporations operating railroads to immediately notify the Department of an injury or death. For clarity on what is meant by “immediately,” rule 761—802.2(327C) is amended to state that a railroad accident or incident must be reported to the Department within four hours of the accident or incident. Iowa Code section 327C.41 requires all common carriers subject to Iowa Code chapter 327D to notify the Department when the Department determines the notification is necessary and reasonable. The following are the notification changes that the Department determined are necessary and reasonable: ○ Written reports no longer need to be submitted for railroad employee injuries because employee safety is outside the realm of the Department’s responsibility. A Federal Railroad Administration form (FRA F 6180.55 — Railroad Injury and Illness Summary) that was used for this notification is stricken from subrule 802.1(2). ○ The criteria for notification of railroad accidents and incidents to the Department are expanded to include information beyond just injuries and fatalities. The added criteria include: ◊ Information on derailments of ten or more cars or a derailment in which any number of cars or locomotives are not upright. This information may prompt the Department’s track inspectors to take a closer look at the safety of the track structure where these incidents occur, often before cleanup is completed. ◊ Notification of derailment or other incident involving railroad passenger trains. This information may also trigger an investigation and is included due to the added risk to passengers in the event of an accident or incident and the associated media attention. ◊ Any release or potential release of hazardous materials will trigger a railroad or local response to the hazard, and the Department should be made aware of this incident and response as a part of the Department’s safety oversight. ◊ Damage to any public or private transportation infrastructure not owned by the railroad. This criterion was added as the result of a past rail incident that damaged a highway bridge. The railroad had difficulty knowing whom to notify and how to notify the appropriate highway officials about the damage after normal business hours. Notifications are now made to the Department’s Traffic Management Center, which is staffed year-round, 24 hours a day, including legal holidays. The Traffic Management Center has extensive contacts with highway officials and can facilitate any notifications of nonrailroad infrastructure damage as a result of a rail accident or incident.

The specific information included in the notification has also been clarified to provide a clearer picture of the accident or incident to Department personnel. This rule making will provide the Department with more complete and useful information to meet the Department’s objective of protecting public safety and ensuring a safe rail infrastructure. The Office of Rail Transportation will have timely information on the nature and severity of an accident or incident and be able to act or prepare accordingly. Reporting rail accidents and incidents to the Department’s Traffic Management Center allows personnel to determine whether there are primary highway impacts that should be included on www.511ia.org, the Department’s notification to the public of highway incidents or delays, or if local highway officials should be notified. The notification also allows Department personnel to prepare for possible media inquiries that may occur as a result of an accident or incident. Depending upon the type or severity of an accident or incident, the notification will also allow Department personnel to notify other agencies or officials that may need to be aware of or respond to the accident or incident.Public Comment and Changes to Rule Making Notice of Intended Action for this rule making was published in the Iowa Administrative Bulletin on April 25, 2018, as ARC 3757C. No public comments or requests for oral presentations were received. No changes from the Notice have been made.Adoption of Rule Making This rule making was adopted by the Transportation Department on June 12, 2018.Fiscal Impact This rule making has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rule making, no impact on jobs has been found.Waivers Any person who believes that the person’s circumstances meet the statutory criteria for a waiver may petition the Department for a waiver under 761—Chapter 11.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rule making by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rule making at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rule making will become effective on August 8, 2018. The following rule-making actions are adopted:

ITEM 1. Amend 761—Chapter 802, title, as follows:REPORTINGNOTIFICATION OF RAILROAD ACCIDENTS/INCIDENTS

ITEM 2. Amend subrule 802.1(2) as follows: 802.1(2) Forms. This rule applies to the following Federal Railroad Administration forms:FRA F 6180.54 — Rail Equipment Accident/Incident ReportFRA F 6180.55 — Railroad Injury and Illness SummaryFRA F 6180.57 — Rail-Highway Grade Crossing Accident/Incident Report

ITEM 3. Amend rule 761—802.2(327C) as follows:

761—802.2(327C) Immediate reportingNotification of personal injury or deathrailroad accidents/incidents. 802.2(1) Accidents or incidents requiring notification. Any accident/incident involving train movement which results in personal injury requiring hospitalization or in deathany of the following shall be reported immediatelywithin four hours of the accident/incident to the department.: a. Fatality. b. Personal injury requiring hospitalization. c. Derailment of ten or more rail cars and locomotives. d. Derailment of any number of cars or locomotives when one or more are not upright. e. Derailment or other incident involving a railroad passenger train. f. Release or potential release of hazardous materials that presents a risk or potential risk to public safety including injury, fatality, evacuation or shelter-in-place of persons. g. Damage to public or private transportation infrastructure not owned by the involved railroad. 802.(1) 802.2(2) Content of immediate reportnotice. The immediate reportnotice of an accident/incident shall provide the date and time it occurred, the nearest city, the location as accurately as possible, the number of fatalities or injuries, the train(s) involved, the nature and cause insofar as known, the name of the individual filing the report, and the name of the railroad involved., at a minimum, the following information: a. Name of the railroad involved. b. Name and contact information of the individual calling to file the notice. c. Date and time the accident/incident occurred. d. Location of the accident/incident, described as accurately as possible, including the nearest city and the U.S. DOT crossing identification number or railroad milepost. e. Description of the accident/incident. f. Impact on motor vehicle travel, if known. g. Number of injuries and fatalities. h. Hazardous materials involved in the incident and actions taken in the event of a release. i. Number of rail cars derailed. 802.(2) 802.2(3) Method of immediate reportingnotification. During normal business hours the immediate reportThe notice shall be filed with the office of rail transportationmade to the department’s traffic management center by telephone at (515)239-1140(515)237-3300 (open year-round, 24 hours a day, including legal holidays). At other times, the report shall be filed with the office of motor carrier services of the motor vehicle division of the department by telephone at (515)243-2478. This rule is intended to implement Iowa Code sectionsections 327C.37and 327C.41. [Filed 6/13/18, effective 8/8/18][Published 7/4/18]Editor’s Note: For replacement pages for IAC, see IAC Supplement 7/4/18.ARC 3883CTransportation Department[761]Adopted and Filed

Rule making related to railroad revolving loan and grant fund program

The Department of Transportation hereby amends Chapter 822, “Railroad Revolving Loan and Grant Fund Program,” Iowa Administrative Code.Legal Authority for Rule Making This rule making is adopted under the authority provided in Iowa Code section 307.12.State or Federal Law Implemented This rule making implements, in whole or in part, Iowa Code section 327H.20A.Purpose and Summary Chapter 822 provides the guidelines under which the Railroad Revolving Loan and Grant Funds are awarded and administered. This rule making reflects changes that have been identified to improve the process to provide fiscally sound financial assistance for rail projects, speed project completion and increase accountability. Some of the specific drivers of the changes include:

In 2011, a portion of the appropriation for the Railroad Revolving Loan and Grant Fund Program was made available for rail port planning studies. The Department found that feasibility and planning studies increased the quality of projects that were later submitted by ensuring that there were demand and cost justification for the projects to move forward and, in some cases, not to move forward. Planning grants, especially for more speculative rail port projects, help future potential applicants have a more realistic understanding of the potential benefits and risks of an infrastructure project and result in better quality projects for applicants and a better use of limited state funding if or when an applicant is awarded a grant or loan for an infrastructure project.

The Federal Railroad Administration approached the Department about developing an agreement to assist railroads in accessing available federal loans, which require certain out-of-pocket expenses. States are encouraged to participate in these expenses. Eligibility of loan development costs, whether through a private or federal source for otherwise qualifying projects, will be another way to leverage limited state funds while meeting the objective of encouraging rail development and improvements.

Adding an allowance for an advance eligibility exemption to maintain the eligibility of costs if funding is later awarded allows applicants, with approval, to complete certain preliminary project activities (such as clearing and grading). Allowing these preparatory activities before an agreement is reached prevents the possible loss of a construction season in project completion. Faster project completion benefits the awardee and the Department, and the terms of the exemption protect the Department from risk.

The Department has had a number of projects which have been stalled or delayed, leaving funds obligated but unused. Adding time frames for each step of the process following an award is expected to mitigate delays in utilizing funding. This change will result in more timely completion of projects and, particularly in the case of loans, establish a repayment schedule more rapidly, making better use of limited state funds to support rail development.

Some applications pledge that the project will create or retain a certain number of jobs and are scored on that criterion. This rule making formalizes the process for verification of those claims and defines acceptable performance. If an applicant fails to meet acceptable performance in the creation of jobs, a repayment of the funds will be requested. This requirement builds in accountability for the recipients of awards and protects the state’s investment by ensuring that development associated with the award occurs.

The following list explains each amendment: Item 1 amends rule 761—822.1(327H) to include the purpose of the program so that the introduction and purpose are included in the same rule. Item 4 rescinds rule 761—822.4(327H), the current rule which describes the purpose of the program. Item 1 also updates the citation to Iowa Code section 327H.20A to remove an unnecessary reference to 2009 Iowa Acts. Item 2 amends rule 761—822.2(327H) regarding definitions. The definition of “rail facilities” is amended to include transload yards, railroad bridges, railroad scales and other railroad infrastructure to address common questions received from potential applicants on what is included as a “rail facility.” A new definition of “rail port” is added. In 2011, a special appropriation was made to assist in the development of rail ports. Grants under this appropriation were administered by the program manager under revised guidelines. The amendment formalizes the definition of a rail port for later inclusion as an eligible project for this program (Item 7). Item 3 amends rule 761—822.3(327H) to state that program information and application forms are available on the Department’s website and that completed applications shall be submitted as directed in the application materials. The telephone number for the Office of Rail Transportation is also corrected. The applications on the Department’s website are designed to be computer fillable and include an email link for submitting applications to the program manager. This process benefits both the applicant and the program manager in storing, retrieving, and archiving digital files. Items 4 and 5 rescind and reserve rules 761—822.4(327H) and 761—822.6(327H). As stated above, part of rule 761—822.4(327H) is revised and incorporated into rule 761—822.1(327H) to include both the introduction and the purpose of the rule. Rule 761—822.6(327H) concerning project criteria is rescinded, and the information is clarified and incorporated into rule 761—822.8(327H) in order to make program cost eligibility clearer to applicants. Item 6 amends rule 761—822.7(327H) to clarify the responsibility of eligible applicants. A sole applicant or one of the applicants in a joint application must be fiscally responsible for any awarded grants or loans. Joint applications are encouraged. However, if a joint application is the recipient of an award, the designated party shall be the fiscal agent working with the Department. This would include fiscal responsibility throughout the project: agreements, project administration, and loan or default payments. Other arrangements for cost sharing or financial responsibility would need to be worked out between the joint applicants and not the Department. Similarly, the Department cannot transfer or assign fiscal responsibility to a party other than the applicant. Some past applicants have not clearly understood the financial responsibilities associated with an award. The amendment clarifies that complex multiparty agreements or the transfer of fiscal responsibility to a third party is not acceptable under this program. Item 7 amends rule 761—822.8(327H), which explains eligible and ineligible project costs. The list of activities or items that are eligible for funding is expanded to include feasibility or planning studies. Studies have been found to be particularly beneficial for proposed developments of complex, speculative or rail port projects and are now an eligible cost. A legislative “set-aside” in 2011 allocated a portion of the Railroad Revolving Loan and Grant Fund Program appropriation for studies. Since that time, it has proven valuable to fund certain studies which can verify or refute the potential success and benefits of a proposed project, which can ultimately lead to better developments or discourage investments that are less likely to succeed. In addition, loan development costs that a Class II or III railroad may have in obtaining a loan for a project that would have otherwise qualified under this chapter are added to the list as a way to further leverage federal or private funding, as explained previously. The list of ineligible costs is amended to address questions frequently received from applicants about which costs are or are not eligible. Item 7 strikes feasibility studies from the list since they are now added as an eligible cost. Since the program is focused on economic development and improvement of the freight transportation system, other rail costs are clearly stated as ineligible, including facilities solely used for historical or tourist railroad activities; capital or operating costs associated with passenger rail, commuter rail or public transit; and acquisition or capital costs associated with recreational trails, which are often built upon abandoned railroad rights-of-way. Environmental studies and design and engineering costs are ineligible as stand-alone projects but are eligible as a part of a construction award under this program so that investments are targeted to completed infrastructure and not preparatory-only activities. Surface repair or replacement and crossing protection are ineligible as stand-alone projects because there are independent funding sources for those stand-alone improvements but are eligible if the improvement is a necessary part of a larger construction project. Item 7 also adds new subrule 822.8(3) pertaining to an advance eligibility exemption. An applicant may request a written advance eligibility exemption from the Department for specified costs incurred prior to an award or agreement, such as land acquisition, advance design costs, clearing and grubbing, i.e., activities preparatory to the installation of the rail infrastructure. If granted, the exemption will permit the specified eligible expenditure(s) by the applicant without jeopardizing the project’s eligibility for future funding approval. Granting an exemption shall not imply or guarantee that the Department will fund a subsequent application. An advance eligibility exemption must be requested and approved prior to the expenditure; any cost incurred before a written exemption is granted will be ineligible for reimbursement. Allowing these preparatory activities prevents the possible loss of a construction season in project completion. Faster project completion benefits both the awardee, who can derive the benefit from the improvement, and the Department in managing the fund balances and making the best use of limited funding. Item 8 amends rule 761—822.10(327H) concerning project applications. Item 8 provides that applications may be submitted at any time and the Office of Rail Transportation will hold the applications until the next evaluation cycle, and that when sufficient funds are available, a notice of funding availability is published on the Department’s website. An email is sent to past applicants, railroads in Iowa, economic development professionals, cities, counties, municipal planning organizations, regional planning affiliations and others who have inquired about the program. The email announces the notice of funding availability and directs recipients to the website for complete information. The notice will include a deadline for applications and the approximate amount of funding available. Applications may be electronically submitted to the Department or sent to the Office of Rail Transportation. This item also requires a location map and a project plan or drawing to be submitted with the application. Item 8 also amends the justification needed for the project to require specific information which demonstrates the benefits the project will provide and a cost estimate for project construction or feasibility planning studies. If a loan is requested, the proposed loan term and interest rate are not needed on the application because loan terms are now determined by the Department and included in the program guidelines for an evaluation cycle. If the project is for a new or expanded development, a letter from the serving railroad(s) indicating the railroad(s) that will serve the planned development is required as part of the application to ensure that coordination with the railroad about the design and extent of the development has occurred and that the railroad’s standards have been met in order to serve the facility. Item 9 amends rule 761—822.11(327H) to clarify that the Department will request additional application information if necessary to understand the project. This item also states that projects involving job creation which do not meet 100 percent of the annual laborshed wage rate for their area will not be considered in order to ensure that any jobs created are “high-quality jobs” for the area of the project. Item 9 also changes the word “preserved” to “retained” to clarify that the Transportation Commission may review the number of new and retained jobs when deciding which projects will receive funding awards. Item 10 renumbers rule 761—822.12(327H) as 761—822.13(327H). Item 11 adopts new rule 761—822.12(327H) concerning award acceptance to formalize a recent addition to the process. In some cases, the Transportation Commission approves an award for less than the requested amount, and the 45-day award acceptance process allows an awardee the time to arrange additional funding or opt out of the award if additional funding to complete the project is unavailable. In other cases, hurdles to the project which threaten completion may have developed since the application process began. The addition of the award acceptance process within a specified period of time helps ensure that projects are ready to move forward without unnecessary delay. Item 12 amends renumbered rule 761—822.13(327H) to provide additional information that must be included in the agreement. The agreement will specify the approved process for any consultant selection related to the project to ensure the selection meets the Department’s standards. Loan repayment terms have always been a part of an agreement but were not previously stipulated in the rule. A requirement that the agreement be executed within 180 days following acceptance of the award was recently added to the agreements in order to move the project forward toward construction. Similarly, a project completion date has been added to minimize delays. Both the agreement and completion timelines can be extended for good cause. Since the program functions as a revolving fund, these timelines minimize the obligated but unused funds in the account and ensure that any loan repayments begin in a timely manner, making the best use of limited funding. Extended delays in agreement negotiations and delayed construction have been relatively common in the past, and the added timelines provide a tool to minimize these delays. This item also amends renumbered subrule 822.13(4), which spells out the remedies that can be taken for an unfulfilled project agreement. This amendment clarifies that the Commission (and not the Department) may revoke a funding commitment, require repayment or do both when an award recipient has not fulfilled the terms of the agreement. This amendment also provides the Commission recourse if a project does not meet requirements and increases accountability. Item 13 amends the chapter’s implementation sentence to remove an unnecessary reference to 2009 Iowa Acts.Public Comment and Changes to Rule Making Notice of Intended Action for this rule making was published in the Iowa Administrative Bulletin on April 25, 2018, as ARC 3759C. No public comments or requests for oral presentations were received. No changes from the Notice have been made.Adoption of Rule Making This rule making was adopted by the Department on June 12, 2018.Fiscal Impact This rule making has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rule making, no impact on jobs has been found.Waivers Any person who believes that the person’s circumstances meet the statutory criteria for a waiver may petition the Department for a waiver under 761—Chapter 11.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rule making by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rule making at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rule making will become effective on August 8, 2018. The following rule-making actions are adopted:

ITEM 1. Amend rule 761—822.1(327H) as follows:

761—822.1(327H) Introductionand purpose. The railroad revolving loan and grant fund program provides funding in the form of loans and grants for railroad-related improvement projects that. The purpose of the program is to spur economic development and job growthand provide benefits to Iowa through economic benefits derived from railroad transportation system or service improvements. The railroad revolving loan and grant fund is established in Iowa Code section 327H.20A as amended by 2009 Iowa Acts, Senate File 151, section 11, and is under the control of the department.

ITEM 2. Amend rule 761—822.2(327H) as follows:

761—822.2(327H) Definitions. "Rail facilities" includes railroad main lines, branch lines, switching yards, sidings, rail connections,transload yards, intermodal yards,and highway grade separations, railroad bridges, railroad scales and other railroad infrastructure. "Rail port" means a commercial or industrial development that has the potential to provide rail service to multiple users through shared rail infrastructure, including transload or intermodal yards.

ITEM 3. Amend rule 761—822.3(327H) as follows:

761—822.3(327H) Information. InformationProgram information and application forms are available on the department’s website at www.iowadot.gov. Completed applications shall be submitted as directed in the application materials. Assistance may be obtained at the following address: Office of Rail Transportation, Iowa Department of Transportation, 800 Lincoln Way, Ames, Iowa 50010; telephone (515)239-1140(515)239-1066. Completed applications shall be submitted to this address.

ITEM 4. Rescind and reserve rule 761—822.4(327H).

ITEM 5. Rescind and reserve rule 761—822.6(327H).

ITEM 6. Amend rule 761—822.7(327H) as follows:

761—822.7(327H) Applicant eligibility. A railroad company, railroad user, city, county, metropolitan planning organization, regional planning affiliation, or any other entity with an interest in a rail transportation improvement is eligible to apply for funding.The applicant shall be fiscally responsible for any awarded loans or grants. Joint applications are allowed and encouraged, but the applicants shall designate one contact personjoint applications shall designate one entity that shall be fiscally responsible for any awarded loans or grants.

ITEM 7. Amend rule 761—822.8(327H) as follows:

761—822.8(327H) Eligible and ineligible project costs. 822.8(1) Eligible costs. Activities or items eligible for funding include, but are not limited to, the following: a. Modernization, upgrading or reconstruction of existing rail facilitiesor rail ports. b. Construction of new rail facilitiesor rail ports. c. Railroad bridge and culvert modernization, replacement or removal. d. Right-of-way acquisition costs. e. Feasibility studies or planning studies for proposed projects that are otherwise eligible. f. Loan development costs that a Class II or III railroad may have in obtaining a loan for a project that would have otherwise qualified under this chapter. 822.8(2) Ineligible costs. a. The following activities or items are ineligible for funding: a. (1) Contract administration. b. (2) Freight car or locomotive lease, purchase or repair. c. Feasibility studies, environmental studies or major investment studies related to a railroad improvement project. d. (3) Refinancing of a completed project that would have otherwise qualified under this chapter. (4) Facilities solely used for historical or tourist railroad activities. (5) Capital or operating costs associated with passenger rail, commuter rail or public transit. (6) Acquisition or capital costs associated with recreational trails. b. The following costs are ineligible unless the costs are part of a larger construction award under this program: (1) Design and engineering. (2) Environmental studies. (3) At-grade crossing surface repair or replacement. (4) Signals, gates or other crossing protection. 822.8(3) Advance eligibility exemption. No part of a project may be under construction prior to a signed and executed agreement. Certain preliminary costs may be eligible for an advance eligibility exemption, if the exemption is requested in writing and granted by the department in writing. If granted, an exemption will permit a specified expenditure by the applicant without jeopardizing the project’s eligibility for future funding approval. Granting an exemption shall not imply or guarantee that the department will fund a subsequent application. An advance eligibility exemption must be requested and approved prior to the expenditure; any cost incurred before a written exemption is granted will be ineligible for reimbursement.

ITEM 8. Amend rule 761—822.10(327H) as follows:

761—822.10(327H) Project application. 822.10(1) Submission. Applications may be submitted at any timeand will be held until the next evaluation cycle. a. The applicant shall submit an original and two copies of a project application to the address in rule 761—822.3(327H).A notice of funding availability will be published on the department’s website when funding is available. The notice will include the approximate amount of funding available and a deadline for consideration of applications. b. An applicant shall submit the appropriate application on the prescribed forms either electronically to the email address included in the application or to the address in rule 761—822.3(327H). b. c. If an application is incomplete, department staff shall return the application to the applicant to be resubmitted when it is complete. c. d. An application may be withdrawn at any time after submission. 822.10(2) Contents of application. Each application shall contain the following: a. The applicant’s name, address, telephone number, facsimile number and E-mail address (if available) and the name of a designated contact person for the project. b. A detailed description of the project proposed for funding, including alocation map or sketchand a project planor drawing. c. The justification for the project, including the following information: (1) The need for and purpose of the project. (2) How the project will impact the local and state economies, including the number of new jobs to be created, the number of potential jobs that may be created and the number of jobs to be retained as a result of the project.Specific information demonstrating that the proposed project will provide benefits to Iowa in terms of direct economic development and job growth or retention or through economic transportation or other benefits derived from railroad transportation system or service improvements. Benefits are to be quantified whenever possible. (3) The long-term growth and development potential of the area or industry to be supported and the direct and indirect economic, transportation, and environmental impacts of the project. d. An itemized estimate of all projector planning study costs and the proposed match or cost sharing based on the requested funding. A detailed financial plan to explain the funding for the entire project should be included, along with any associated development costs. e. A time schedule for the completion of the project. f. The total amount of loan and grant funds requested. g. If loan funds are requested, the proposed loan term and interest rate and a detailed description of the applicant’s ability to repay the loan. Department staff may require the applicant to provide audited financial statements for the past two years plus a current balance sheet and profit/loss statement for the entity that is to repay the loan. If the entity that is to repay the loan is a new entity, the applicant shall, instead, provide a pro forma balance sheet and pro forma profit/loss statement. h. If requested by department staff, endorsement of the project by a local government(s) that will be affected by the project and a description of how the project will impact the local government’s transportation and economic development plans. i. If the project is a new or expanded development, a letter from the serving railroad(s) indicating that the railroad(s) will serve the planned development.

ITEM 9. Amend rule 761—822.11(327H) as follows:

761—822.11(327H) Project evaluation and approval. 822.11(1) Staff review. Department staff shall review the contents of each application for completenessand request any additional information necessary to understand the scope and benefits of a project. Projects involving job creation which do not meet 100 percent of the annual laborshed wage rate for their area will not be considered. Department staff may visit the project site and may require the applicant to verify the information in the application. After department staff determines that the application is complete, the staff shall develop a funding recommendation and shall schedule the project for submission to the transportation commission for approval. 822.11(2) Commission evaluation. The transportation commission shall be responsible for selecting and determining the funding for each project, subject to the availability of railroad revolving loan and grant funds. The transportation commission may fund all or part of a project and may make funding dependent upon the applicant’s adherence to a time schedule or fulfillment of specified conditions, including job creation commitments. 822.11(3) Commission approval. In making its decision to fund a project, the transportation commission may consider the railroad transportation service benefits of the project, the economic development benefits of the project, the applicant’s total capital investment, the number of direct and indirect jobs to be created or preservedretained by the project, the financing requested, an analysis of public benefits versus public costs, and other potential impacts or benefits of the project.

ITEM 10. Renumber rule 761—822.12(327H) as 761—822.13(327H).

ITEM 11. Adopt the following new rule 761—822.12(327H):

761—822.12(327H) Award acceptance. After the transportation commission approves the project, department staff shall notify the applicant of the amount of the award. The applicant shall either accept or reject the award in writing within 45 days.

ITEM 12. Amend renumbered rule 761—822.13(327H) as follows:

761—822.13(327H) Project agreement and administration. 822.13(1) Agreement. After the transportation commission has approved fundingapplicant has accepted the award for a project, department staff shall negotiate and execute an agreement with the applicant. Department staff shall administer the agreement. a. The agreement shall specify the scope of the project, the approved funding level, and other conditions for project funding. b. As applicable, the agreement shall address responsibilities forconsultant selection, project design, right-of-way acquisition, contracting, construction and materials inspection; documentation required for reimbursement of project costs;loan repayment terms; audit requirements; and maintenance of the completed project. c. The applicant shall execute the agreement within 180 days following the acceptance of the award. The applicant may request an extension, and department staff may approve an extension for good cause. Failure to execute an agreement within the specified time may result in forfeiture of the award. 822.13(2) Reimbursement. The applicant will be reimbursed for eligible project costs in accordance with the agreement. 822.13(3) Audits. a. Prior to execution of the agreement, department staff may perform a preaudit evaluation of the applicant or others as defined in the agreement. A preaudit evaluation typically includes an examination of accounting methods to determine the applicant’s ability to segregate and accumulate costs to be charged against the project, and an analysis of costs factors to ensure their propriety and allowability. b. Department staff may conduct a final audit of all project costs. 822.13(4) DefaultRemedies for noncompliance with project agreement. Department staffThe commission may revoke a funding commitment, seekrequire repayment of funds loaned or granted or take both actions ifwhen the applicant fails to fulfillhas not fulfilled the terms of theproject agreement.

ITEM 13. Amend 761—Chapter 822, implementation sentence, as follows: These rules are intended to implement Iowa Code section 327H.20A as amended by 2009 Iowa Acts, Senate File 151, section 11. [Filed 6/13/18, effective 8/8/18][Published 7/4/18]Editor’s Note: For replacement pages for IAC, see IAC Supplement 7/4/18.ARC 3884CWorkers’ Compensation Division[876]Adopted and Filed

Rule making related to payroll tax tables

The Workers’ Compensation Commissioner hereby amends Chapter 8, “Substantive and Interpretive Rules,” Iowa Administrative Code.Legal Authority for Rule Making This rule making is adopted under the authority provided in Iowa Code section 86.8.State or Federal Law Implemented This rule making implements, in whole or in part, Iowa Code section 85.61(6).Purpose and Summary This amendment updates references to the tables which determine payroll taxes, as required by Iowa Code section 85.61(6).Public Comment and Changes to Rule Making Notice of Intended Action for this rule making was published in the Iowa Administrative Bulletin on May 9, 2018, as ARC 3775C. The rule was on the agenda for the Administrative Rules Review Committee meeting on June 12, 2018, and no questions or comments were received during the meeting. No public comments were received. No changes from the Notice have been made.Adoption of Rule Making This rule making was adopted by the Workers’ Compensation Division on June 13, 2018.Fiscal Impact This rule making has no fiscal impact to the State of Iowa. Jobs Impact After analysis and review of this rule making, no impact on jobs has been found. This amendment will have no impact on small business within the meaning of Iowa Code section 17A.4A.Waivers This amendment does not include a waiver provision because rule 876—12.4(17A) provides the specified situations for waiver of Workers’ Compensation Division rules.Review by Administrative Rules Review Committee The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rule making by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rule making at its regular monthly meeting or at a special meeting. The Committee’s meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).Effective Date This rule making will become effective on August 8, 2018. The following rule-making action is adopted:

ITEM 1. Amend rule 876—8.8(85,17A) as follows:

876—8.8(85,17A) Payroll tax tables. Tables for determining payroll taxes to be used for the period July 1, 20172018, through June 30, 20182019, are the tables in effect on July 1, 20172018, for computation of:

Federal income tax withholding according to the percentage method of withholding for weekly payroll period. (Internal Revenue Service, Employer’s Supplemental Tax Guide, Publication 15-A [20162018].)
Iowa Withholding Tax Guide. (Iowa Department of Revenue Iowa Withholding Tax Rate Tables [Effective April 1, 2006].)
Social Security and Medicare withholding (FICA) at the rate of 7.65 percent. (Internal Revenue Service, Circular E, Employer’s Tax Guide, Publication 15 [20162018].)

This rule is intended to implement Iowa Code section 85.61(6). [Filed 6/13/18, effective 8/8/18][Published 7/4/18]Editor’s Note: For replacement pages for IAC, see IAC Supplement 7/4/18.

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