IOWA ADMINISTRATIVE BULLETIN - Iowa Legislature

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SUES (TTTJEE, c ~"IOWA ADMINISTRATIVE BULLETIN

Published Biweekly VOLUME XXIOctober 7,1998

NUMBER 8 Pages 677 to 788

CONTENTS IN THIS ISSUEPages 691 to 768 include ARC 8360A to ARC 8401A

AGRICULTURE AND LAND STEWARDSHIP DEPARTMENT^]Filed Emergency, Emergency storage space for

1998 com harvest, 90.31 ARC 8360A...................705

ALL AGENCIESSchedule for rule making ........................................... 680Publication procedures ............................................... 681Agency identification numbers...................................687

CITATION OF ADMINISTRATIVE RULES........ 679

ECONOMIC DEVELOPMENT, IOWA DEPARTMENT OF[261]Filed, Housing fund, 25.2, 25.5, 25.8

ARC 8387A..............................................................713Filed, Enterprise zones, 59.1 to 59.13

ARC 8386A..............................................................713

EDUCATION DEPARTMENT[281]Notice, Appeal procedures—rehearing, 6.1,

6.3(1), 6.13,6.14(1) ARC 8377A...........................691Notice, Driver education, 26.1, rescind 26.2(3)

ARC 8376A..............................................................691Notice, Certified school to career program

approval, ch 48 ARC 8374A ................................... 692Notice, Waiver of school breakfast program

requirement, ch 69 ARC 8378A.............................694Notice, Financial incentives for national board

certification, ch 84 ARC 8371A.............................695Filed, Instructional course for drinking drivers,

21.30 to 21.32 ARC 8375A ................................... 721Filed, State financial aid to community colleges,

21.45 ARC 8369A ................................................. 722Filed, School buses, ch 44 ARC 8373A ...................724Filed Emergency, Financial incentives for

national board certification, ch 84 ARC 8372A .. 705 Filed Emergency, Local option sales and services

tax for school infrastructure, ch 96 ARC 8370A .. 707

HISTORICAL DIVISION[223]CULTURAL AFFAIRS DEPARTMENT[221]“umbrella"

Notice, Historical resource development program,49.1 to 49.3,49.5 to 49.7 ARC 8390A.................695

HUMAN SERVICES DEPARTMENT[441]Notice, Quality of life drugs, 78.1(2), 78.28(1)

ARC 8362A............................................................696Notice, Elderly waiver program, 83.22(l)“b”

ARC 8383A............................................................697Filed, Commission on children, youth

and families, rescind 1.9 ARC 8363A ...................747Filed, Four-month work transition period for

Medicaid, 75.57(7) ARC 8364A............................. 748Filed, Hospice services, 78.36, 79.1(14)“f’

ARC 8365A..............................................................749Filed, Nurse aide training program, 81.1, 81.16

ARC 8366A..............................................................750

INSPECTIONS AND APPEALS DEPARTMENTS 1) Notice, Psychiatric medical institutions for

children (PMIC), 41.2 ARC 8380A....................... 697Notice, Administrator of intermediate care,

facility, 58.8 ARC 8381A........................................698

INSURANCE DIVISION[191]COMMERCE DEPARTMENT[181]“umbrella”

Filed, Organization of division, 1.1 to 1.3ARC 8368A..............................................................751

Filed, Capital gains earned in trust accounts; consumer price index, 19.2,19.60 ARC 8367A..............................................................751

NATURAL RESOURCE COMMISSION[571]NATURAL RESOURCES DEPARTMENT[561]“umbrella”

Notice, General license regulations, 15.2,15.3(4)ARC 8393A..............................................................698

Notice, Boat motor regulations, 45.4(2)ARC 8394A..............................................................700

Notice, Wild turkey spring hunting, 98.1(1),98.3, 98.14 ARC 8395A..........................................700

Filed Emergency After Notice, Controlled waterfowl hunting, 53.2 ARC 8396A..................... 708

NURSING BOARD [655]PUBLIC HEALTH DEPARTMENT[641I“umbrella”

Filed, LPN scope of practice, 6.2(5), 6.3,6.5,6.6 ARC 8382A ...................... 752

Continued on page 679

Published Under Authority of Iowa Code Sections 2B.5 and 17A.6

PREFACEThe Iowa Administrative Bulletin is published biweekly in pamphlet form pursuant to Iowa Code chapters 2B and 17Aand

contains Notices of Intended Action on rules, Filed and Filed Emergency rules by state agencies.It also contains Proclamations and Executive Orders of the Governor which are general and permanent in nature; Economic

Impact Statements to proposed rules and filed emergency rules; Objections filed by Administrative Rules Review Committee, Governor or the Attorney General; and Delay by the Committee of the effective date of filed rules; Regulatory Flexibility Analyses and Agenda for monthly Administrative Rules Review Committee meetings. Other “materials deemed fitting and proper by the Administrative Rules Review Committee” include summaries of Public Hearings, Attorney General Opinions and Supreme Court Decisions.

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

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

KATHLEEN K. BATES, Administrative Code Editor Telephone: (515)281-3355ROSEMARY DRAKE, Assistant Editor (515)281-7252

Fax: (515)281-4424

SUBSCRIPTION INFORMATION

Iowa Administrative BulletinThe Iowa Administrative Bulletin is sold as a separate publication and may be purchased by subscription or single copy. All

subscriptions will expire on June 30 of each year. Subscriptions must be paid in advance and are prorated quarterly as follows: First quarter July 1,1998, to June 30,1999 $244.10 plus $12.21 sales taxSecond quarter October 1,1998, to June 30,1999 $185.00 plus $9.25 sales taxThird quarter January 1,1999, to June 30,1999 $125.00 plus $6.25 sales taxFourth quarter April 1,1999, to June 30,1999 $ 65.00 plus $3.25 sales tax

Single copies may be purchased for $19.00 plus $0.95 tax. Back issues may be purchased if the issues are available.

Iowa Administrative CodeThe Iowa Administrative Code and Supplements are sold in complete sets and subscription basis only. All subscriptions for

the Supplement (replacement pages) must be for the complete year and will expire on June 30 of each year.Prices for the Iowa Administrative Code and its Supplements are as follows:

Iowa Administrative Code - $1,119.00 plus $55.95 sales tax(Price includes 22 volumes of rules and index, plus a one-year subscription to the Code Supplement and the Iowa Adminis

trative Bulletin. Additional or replacement binders can be purchased for $10.90 plus $0.55 tax.)

Iowa Administrative Code Supplement - $393.50 plus $19.68 sales tax (Subscription expires June 30,1999)All checks should be made payable to the Iowa State Printing Division. Send all inquiries and subscription orders to:

Customer Service Center Department of General Services Hoover State Office Building, Level A Des Moines, LA 50319 Telephone: (515)242-5120

IAB 10/7/98 CONTENTS 679

PERSONNEL DEPARTMENT[581]FUed, IPERS, 21.6(9), 21.11, 21.24(9)

ARC 8385A ......................................................... 753

PROFESSIONAL LICENSURE DIVISION[645]PUBLIC HEALTH DEPARTMENT^ If umbrella”

Filed, Athletic training examiners board, 350.1 to 350.7, 350.10(4), 350.11(7), 350.12, 350.14(2),350.15, 350.17 to 350.32, 355.1, 355.3, 356.1,356.3,357.3,357.5, 357.6, 357.11, 357.13,358.1 ARC 8379A ................................................. 754

PUBLIC FUNDS—AVAILABILITY Public Health Departmental]

Bicycle safety........................................................... 689Bucklebear............................................................... 690

PUBLIC HEALTH DEPARTMENT[641]Notices of Public Funds Availability...........................689Filed, HIV-related test for convicted or alleged

sexual-assault offenders and the victims,11.70 to 11.74 ARC 8397A.....................................754

Filed, Public health nursing, ch 79 ARC 8401A ... 757Filed, Home care aide, ch 80 ARC 8400A .............. 760Filed, Iowa senior health program, ch 83

ARC 8399A............................ 764Filed, Volunteer health care provider program,

88.1 to 88.3, 88.11 ARC 8398A............................767

RACING AND GAMING COMMISSION[491]INSPECTIONS AND APPEALS DEPAKTMENT[481]“umbrella”

Notice, Thoroughbred racing, 4.24, 4.25,10.5(17)ARC 8389A............................................................701

Filed, Recipients of nonprofit distributions,20.11(6) ARC 8388A..............................................768

REVENUE AND FINANCE DEPARTMENT[701] Notice, Eligible housing business incentives

for tax credit, 42.13, 52.15 ARC 8384A.................702

SUPREME COURTDecisions summarized..................................................769

TRANSPORTATION DEPARTMENT[761]Notice, Functional classification of highways,

rescind ch 100 ARC 8361A................................... 703

TREASURER OF STATE[781]Notice, Iowa educational savings plan trust,

ch 16 ARC 8391A....................................................703Filed Emergency, Iowa educational savings plan

trust, ch 16 ARC 8392A......................................... 708

USURYNotice .......................................................................... 704

PUBLIC HEARINGSSummarized list......................................................... 682

CITATION of Administrative Rules

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

441 IAC 79 (Chapter)

441 IAC 79.1(249A) (Rule)

441 IAC 79.1(1) (Subrule)

441 IAC 79.1(l)“a” (Paragraph)

441 IAC 79.1(l)“a”(l) (Subparagraph)

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

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

680 IAB 10/7/98

Schedule for Rule Making 1998

FIRSTHEARING POSSIBLE FIRST POSSIBLE

NOTICE NOTICE OR ADOPTION ADOPTED ADOPTED POSSIBLE EXPIRATIONSUBMISSION PUB. COMMENTS DATE HUNG PUB. EFFECTIVE OF NOTICEDEADLINE DATE 20 DAYS 35 DAYS DEADLINE DATE DATE 180 DAYS

Dec. 26 ’97 Jan. 14 ’98 Feb. 3 Feb. 18 Feb. 20 Mar. 11 Apr. 15 July 13Jan. 9 ’98 Jan. 28 Feb.17 Mar. 4 Mar. 6 Mar. 25 Apr. 29 July 27Jan. 23 Feb. 11 Mar. 3 Mar. 18 Mar. 20 Apr. 8 May 13 Aug. 10Feb. 6 Feb. 25 Mar. 17 Apr. 1 Apr. 3 Apr. 22 May 27 Aug. 24Feb. 20 Mar. 11 Mar. 31 Apr. 15 Apr. 17 May 6 June 10 Sept. 7Mar. 6 Mar. 25 Apr. 14 Apr. 29 May 1 May 20 June 24 Sept. 21Mar. 20 Apr. 8 Apr. 28 May 13 May 15 June 3 July 8 Oct. 5Apr. 3 Apr. 22 May 12 May 27 May 29 June 17 July 22 Oct. 19Apr. 17 May 6 May 26 June 10 June 12 July 1 Aug. 5 Nov. 2May 1 May 20 June 9 June 24 June 26 July 15 Aug. 19 Nov. 16May 15 June 3 June 23 July 8 July 10 July 29 Sept. 2 Nov. 30May 29 June 17 July 7 July 22 July 24 Aug. 12 Sept. 16 Dec. 14June 12 July 1 July 21 Aug. 5 Aug. 7 Aug. 26 Sept. 30 Dec. 28June 26 July 15 Aug. 4 Aug. 19 Aug. 21 Sept. 9 Oct. 14 Jan. 11 >99

July 10 July 29 Aug. 18 Sept. 2 Sept. 4 Sept. 23 Oct. 28 Jan. 25 >99

July 24 Aug. 12 Sept. 1 Sept. 16 Sept. 18 Oct. 7 Nov. 11 Feb. 8 >99

Aug. 7 Aug. 26 Sept. 15 Sept. 30 Oct. 2 Oct. 21 Nov. 25 Feb. 22 >99

Aug. 21 Sept. 9 Sept. 29 Oct. 14 Oct. 16 Nov. 4 Dec. 9 Mar. 8 >99

Sept. 4 Sept. 23 Oct. 13 Oct. 28 Oct. 30 Nov. 18 Dec. 23 Mar. 22 >99

Sept. 18 Oct. 7 Oct. 27 Nov. 11 Nov. 13 Dec. 2 Jan. 6 >99 Apr. 5 >99

Oct. 2 Oct. 21 Nov. 10 Nov. 25 Nov. 27 Dec. 16 Jan. 20 >99 Apr. 19 >99

Oct. 16 Nov. 4 Nov. 24 Dec. 9 Dec. 11 Dec. 30 Feb. 3 ’99 May 3 ’99Oct. 30 Nov. 18 Dec. 8 Dec. 23 Dec. 25 Jan. 13 ’99 Feb. 17 >99 May 17 ’99Nov. 13 Dec. 2 Dec. 22 Jan. 6 >99 Jan. 8 ’99 Jan. 27 ’99 Mar. 3 -99 May 31 ’99Nov. 27 Dec. 16 Jan. 5 ’99 Jan. 20 >99 Jan. 22 >99 Feb. 10 >99 Mar. 17 >99 June 14 ’99Dec. 11 Dec. 30 Jan. 19 ’99 Feb. 3 >99 Feb. 5 ’99 Feb. 24 >99 Mar. 31 >99 June 28 ’99Dec. 25 Jan. 13 ’99 Feb. 2 ’99 Feb. 17 >99 Feb. 19 >99 Mar. 10 >99 Apr. 14 >99 July 12 >99

Jan. 8 ’99 Jan. 27 ’99 Feb. 16 ’99 Mar. 3 >99 Mar. 5 >99 Mar. 24 >99 Apr. 28 >99 July 26 >99

ISSUE NUMBERPRINTING SCHEDULE FOR IAB

SUBMISSION DE ADI .INF. ISSUE DATE.

10 Friday, October 16,1998 November 4,1998

11 Friday, October 30,1998 November 18,1998

12 Friday, November 13,1998 December 2,1998

Please Note:Rules will not be accepted after 12 o’clock noon on the Friday filing deadline days unless prior approval has been received

from the Administrative Rules Coordinator’s office.If the filing deadline falls on a legal holiday, submissions made on the following Monday will be accepted.

LAB 10/7/98 681

PUBLICATION PROCEDURES

TO: Administrative Rules Coordinators and Text Processors of State AgenciesFROM: Kathleen K. Bates, Iowa Administrative Code EditorSUBJECT: Publication of Rules in Iowa Administrative Bulletin

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

1. To facilitate the processing of rule-making documents, we request a 3.5" High Density (not Double Density) IBM PC-compatible diskette of the rule making. Please indicate on each diskette the following information: agency name, file name, format used for exporting, and chapter(s) amended. Diskettes may be delivered to the Administrative Code Division, 4th Floor, Lucas State Office Building or included with the documents submitted to the Governor’s Administrative Rules Coordinator.

2. Alternatively, if you have Internet E-mail access, you may send your document as an attachment to an E-mail message, addressed to both of the following:

[email protected]@legis.state.ia.us

Please note that changes made prior to publication of the rule-making documents are reflected on the hard copy returned to agencies by the Governor’s office, but not on the diskettes; diskettes are returned unchanged.

Your cooperation helps us print the Bulletin more quickly and cost-effectively than was previously possible and is greatly appreciated.

Guide to Rule Making, June 1995 Edition, available upon request to the Iowa Administrative Code Division, Lucas State Office Building, Fourth Floor, Des Moines, Iowa 50319.

682 PUBLIC HEARINGS IAB 10/7/98

To All Agencies:The Administrative Rules Review Committee voted to request that Agencies comply with Iowa Code section 17A.4(l)“b”

by allowing the opportunity for oral presentation (hearing) to be held at least twenty days after publication of Notice in the Iowa Administrative Bulletin.AGENCY HEARING LOCATION DATE AND TIME OF HEARING

ECONOMIC DEVELOPMENT, IOWA DEPARTMENT OF[261]

Certified school to career program, Main Conference Room October 29,1998ch 11 200 E. Grand Ave. 2 p.m.IAB 9/9/98 ARC 8312A Des Moines, Iowa

EDUCATIONAL EXAMINERS BOARD[282]

Middle school endorsement,14.20(15)IAB 9/9/98 ARC 8315A

Conference Room 3 North—3rd Floor Grimes State Office Bldg.Des Moines, Iowa

October 8,199810 a.m.

Two-year administrator exchange license,14.25 to 14.33IAB 9/9/98 ARC 8314A

Conference Room 3 North—3rd Floor Grimes State Office Bldg.Des Moines, Iowa

October 8,19981 p.m.

EDUCATION DEPARTMENT[281]Certified school to career program

approval, ch 48IAB 10/7/98 ARC 8374A (ICN Network)

ICN RoomIDED200 E. Grand Ave.Des Moines, Iowa

October 29,19982 to 4 p.m.

■

ICN Classroom 4Kirkwood Community College6301 Kirkwood Blvd. S.W.Cedar Rapids, Iowa


Looft HallIowa Western Community College2700 College Rd.Council Bluffs, Iowa


Activity Center 106North Iowa Area Community College 500 College Dr.Mason City, Iowa


Advanced Technology Center, Rm. 108 Indian Hills Community College525 Grandview Ave.Ottumwa, Iowa


Room 209AWestern Hills AEA1520 Morningside Ave.Sioux City, Iowa


Waiver of school breakfast program requirement, ch 69IAB 10/7/98 ARC 8378A

State Board Room—2nd FloorGrimes State Office Bldg.Des Moines, Iowa

November 2,1998 1 p.m.

LAB 10/7/98 PUBLIC HEARINGS 683

EDUCATIONDEPARTMENT[281](Cont’d)

Financial incentives for national State Board Room—2nd Floor November 5,1998board certification, ch 84 Grimes State Office Bldg. 9 a.m.IAB 10/7/98 ARC 8371A(See also ARC 8372A herein)

Des Moines, Iowa

EMERGENCY MANAGEMENT DIVISION[605]

Enhanced 911 telephone systems, Conference Room—Level A October 15,1998ch 10 Hoover State Office Bldg. 10 a.m.IAB 9/23/98 ARC 8343A(See also ARC 8344A)

Des Moines, Iowa

EMPOWERMENT BOARD, IOWA[349]Iowa empowerment board, ICN Room—2nd Floor October 7,1998

ch 1 Grimes State Office Bldg. 9 a.m. to 12 noonIAB 8/26/98 ARC 8247A (ICN Network)

Des Moines, Iowa

(See also ARC 8248A)

Media Center October 7,1998Bettendorf High School3333 18th St.

9 a.m. to 12 noon

Bettendorf, Iowa

Louisa Room October 7,1998Mississippi Bend AEA 9729 21st St.Bettendorf, Iowa

9 a.m. to 12 noon

Room 108 October 7,1998Great River AEA 16 9 a.m. to 12 noon1200 UniversityBurlington, Iowa

AEA7 October 7,19983712 Cedar Heights Dr.Cedar Falls, Iowa

9 a.m. to 12 noon

Revere Room October 7,1998Grant Wood AEA 104401 6th St.Cedar Rapids, Iowa

9 a.m. to 12 noon

State Room October 7,1998Northern Trails AEA 29184B 265th St.Clear Lake, Iowa

9 a.m. to 12 noon

ICN Room October 7,1998Loess Hills AEA 1324997 Hwy. 92Council Bluffs, Iowa

9 a.m. to 12 noon

Turner Room October 7,1998Green Valley AEA 141405 N. LincolnCreston, Iowa

9 a.m. to 12 noon

684 PUBLIC HEARINGS LAB 10/7/98

EMPOWERMENT BOARD, IOWA[349](ICN Network)(Cont’d)

ICN ClassroomLakeland AEA 3Hwy. 18 and 2nd St.Cylinder, Iowa

October 7,1998 9 a.m. to 12 noon

ICN ClassroomKeystone AEA 12310 Chaney Rd.Dubuque, Iowa


ICN ClassroomKeystone AEA 11400 2nd St. S.W.Elkader, Iowa


Room 12Fort Dodge High School819 N. 25th St.Fort Dodge, Iowa


ICN ClassroomHeartland AEA 116500 Corporate Dr.Johnston, Iowa

October 7,19989 a.m. to 12 noon

IPTV - 2 (East)Iowa Public Television6450 Corporate Dr.Johnston, Iowa

October 7,19989 a.m. to 12 noon

Media CenterManson/Northwest Webster

High School1601 15th St.Manson, Iowa


ICN RoomAEA 6909 S. 12th St.Marshalltown, Iowa


ICN ClassroomSouthern Prairie AEA 152814 N. Court St.Ottumwa, Iowa


Room 103AEA41382 4th Ave.Sioux Center, Iowa


Room 209AWestern Hills AEA 121520 Momingside Ave.Sioux City, Iowa


HISTORICAL DIVISION[223]Historical resource development

program,49.1 to 49.3, 49.5 to 49.7LAB 10/7/98 ARC 8390A

Tone Board RoomState Historical Bldg.600 E. LocustDes Moines, Iowa

October 27,1998 10 a.m.

IAB 10/7/98 PUBLIC HEARINGS 685

INSPECTIONS AND APPEALS DEPARTMENT[481]Intermediate care facilities,

58.8IAB 10/7/98 ARC 8381A

Director’s Conference RoomSecond FloorLucas State Office Bldg.Des Moines, Iowa

October 27,1998 1 p.m.

LABOR SERVICES DIVISION[347]

Organizational structure, 1000 E. Grand Ave.Amend and transfer 347—chs 1,2 Des Moines, Iowato 875—chs 1,2 IAB 9/23/98 ARC 8355A

General industry safety and health, 1000 E. Grand Ave. 10.20 Des Moines, IowaIAB 9/23/98 ARC 8351A

Construction safety and health, 1000 E. Grand Ave.26.1 Des Moines, IowaIAB 9/23/98 ARC8352A

October 15,1998 9 a.m.(If requested)



NATURAL RESOURCE COMMISSION[571]General license regulations,

15.2,15.3(4)IAB 10/7/98 ARC 8393A

Boating speed on Avenue of the Saints Lake, 45.4(2)IAB 10/7/98 ARC 8394A

Wild turkey spring hunting, 98.1(1), 98.3, 98.14 IAB 10/7/98 ARC 8395A

Conference Room—5th Floor East Wallace State Office Bldg.Des Moines, IowaConference Room—4th Floor West Wallace State Office Bldg.Des Moines, IowaConference Room—4th Floor Wallace State Office Bldg.Des Moines, Iowa

October 29,1998 8:30 a.m.

October 27,1998 10 a.m.

October 28,1998 10 a.m.

PROFESSIONAL LICENSURE DIVISION[645]

Massage therapists,130.1,130.3 to 130.10,131.1 to 131.5,131.7 to 131.19 IAB 9/23/98 ARC 8347A

South Conference Room Level AHoover State Office Bldg. Des Moines, Iowa


PUBLIC HEALTH DEPARTMENT[641]

Reportable diseases,1.2(l)“a”IAB 9/23/98 ARC 8357A

Immunizations—hepatitis B; polio exemption, 7.4(6)IAB 9/23/98 ARC 8358A

Emergency medical services, 132.1,132.5(5), 132.8,132.9(6), 132.16(3), 139.6(2)IAB 9/23/98 ARC 8359A (ICN Network)

Conference Room—3rd Floor Side TwoLucas State Office Bldg.Des Moines, Iowa

Conference Room—4th Floor Lucas State Office Bldg.Des Moines, IowaICN Room—3rd Floor Lucas State Office Bldg.Des Moines, Iowa

October 14,1998 9:30 to 10 a.m.

October 14,1998 10 a.m.

October 15,1998 2 to 3 p.m.

686 PUBLIC HEARINGS IAB 10/7/98

PUBLIC HEALTH DEPARTMENT[641](ICN Network)(Cont’d)

National Guard Armory11 E. 23rd St.Spencer, Iowa


National Guard Armory1712 LaClark Rd.Carroll, Iowa


National Guard Armory1160 10th St. S.W.Mason City, Iowa


National Guard Armory195 Radford Rd.Dubuque, Iowa


National Guard Armory2858 N. Court Rd.Ottumwa, Iowa


RACING AND GAMING COMMISSION[491]Thoroughbred racing,

4.24, 4.25, 10.5(17)IAB 10/7/98 ARC 8389A

Suite B717 E. CourtDes Moines, Iowa

October 27,1998 9 a.m.

REAL ESTATE COMMISSION [193E]Advertising; noncompliance—

college student aid commission, 1.24(7), 2.4, 4.44, 5.18, 5.19IAB 9/23/98 ARC 8349A

Conference Room—2nd Floor1918 S.E. Hulsizer Rd.Ankeny, Iowa


TRANSPORTATION DEPARTMENT[761]Functional classification of highways,

rescind ch 100IAB 10/7/98 ARC 8361A

Conference Room800 Lincoln WayAmes, Iowa


Driver’s licenses, amendments to chs 600 to 602,604, 605,615, 620, 625, 630, 641IAB 9/23/98 ARC 8331A

Conference RoomPark Fair MallLower Level100 Euclid Ave.Des Moines, Iowa


TREASURER OF STATE [781]

Iowa educational savings plan trust, ch 16IAB 10/7/98 ARC 8391A(See also ARC 8392A herein)

Room 19Basement FloorState Capitol Bldg.Des Moines, Iowa


LAB 10/7/98 AGENCY IDENTIFICATION NUMBERS 687

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

“Umbrella” agencies and elected officials are set out below at the left-hand margin in CAPITAL letters. Divisions (boards, commissions, etc.) are indented and set out in lowercase type under their statutory “umbrellas.” Other autonomous agencies which were not included in the original reorganization legislation as “umbrella” agen

cies are included alphabetically in small capitals at the left-hand margin, e.g., BEEF industry council, iowa[101]. The following list will be updated as changes occur:

AGRICULTURE AND LAND STEWARDSHIP DEPARTMENT[21]Agricultural Development Authority[25]Soil Conservation Division[27]

ATTORNEY GENERAL[61]AUDITOR OF STATE[81]BEEF INDUSTRY COUNCIL, IOWA[101]BUND, DEPARTMENT FOR THE[111]CITIZENS’ AIDE[141]CIVIL RIGHTS COMMISSION[161]COMMERCE DEPARTMENT[181]

Alcoholic Beverages Division[185]Banking Division[187]Credit Union Division[189]Insurance Division[191]Professional Licensing and Regulation Division[193]

Accountancy Examining Board[193A]Architectural Examining Board[193B]Engineering and Land Surveying Examining Board[193C]Landscape Architectural Examining Board[193D]Real Estate Commission[193E]Real Estate Appraiser Examining Board[193F]

Savings and Loan Division[197]Utilities Division[199]

CORRECTIONS DEPARTMENT^!) 1]Parole Board[205]

CULTURAL AFFAIRS DEPARTMENT[221]Arts Division [222]Historical Division [223]

ECONOMIC DEVELOPMENT, IOWA DEPARTMENT OF[261]City Development Board[263]Iowa Finance Authority [265]

EDUCATION DEPARTMENT[281]Educational Examiners Board [282]College Student Aid Commission[283]Higher Education Loan Authority [284]Iowa Advance Funding Authority[285]Libraries and Information Services Division[286]Public Broadcasting Division[288]School Budget Review Committee [289]

EGG COUNCI L[301]ELDER AFFAIRS DEPARTMENT[321]EMPLOYMENT SERVICES DEPARTMENT^ 1]

Job Service Division[345]Labor Services Division[347]

EMPOWERMENT BOARD, IOWA[349]ETHICS AND CAMPAIGN DISCLOSURE BOARD, IOWA[351]EXECUTIVE COUNCIL[361]FAIR BOARD[371]GENERAL SERVICES DEPARTMENT[401]HUMAN INVESTMENT COUNCIL[417]HUMAN RIGHTS DEPARTMENT[421]

Community Action Agencies Division[427]Criminal and Juvenile Justice Planning Division[428]Deaf Services Division[429]Persons With Disabilities Division[431]Latino Affairs Division[433]Status of Blacks Division[434]Status of Women Division[435]

688 AGENCY IDENTIFICATION NUMBERS LAB 10/7/98

HUMAN SERVICES DEPARTMENT[441]INSPECTIONS AND APPEALS DEPARTMENT[481]

Employment Appeal Board[486]Foster Care Review Board[489]Racing and Gaming Commission[491]State Public Defender[493]

LAW ENFORCEMENT ACADEMY[501]LIVESTOCK HEALTH ADVISORY COUNCIL[521]MANAGEMENT DEPARTMENT[541]

Appeal Board, State[543]City Finance Committee[545]County Finance Committee[547]

NARCOTICS ENFORCEMENT ADVISORY COUNCIL[551]NATIONAL AND COMMUNITY SERVICE, IOWA COMMISSION ON[555]NATURAL RESOURCES DEPARTMENT[561]

Energy and Geological Resources Division [565]Environmental Protection Commission[567]Natural Resource Commission[571]Preserves, State Advisory Board[575]

PERSONNEL DEPARTMENT[581]PETROLEUM UNDERGROUND STORAGE TANK FUND

BOARD, IOWA COMPREHENSIVE[591]PREVENTION OF DISABILITIES POLICY COUNCIL[597]PUBLIC DEFENSE DEPARTMENT[601]

Emergency Management Division[605]Military Division[611]

PUBLIC EMPLOYMENT RELATIONS BOARD[621]PUBLIC HEALTH DEPARTMENT[641]

Substance Abuse Commission[643]Professional Licensure Division[645]Dental Examiners Board [650]Medical Examiners Board[653]Nursing Board[655]Pharmacy Examiners Board[657]

PUBLIC SAFETY DEPARTMENT[661]RECORDS COMMISSION[671]REGENTS BOARD[681]

Archaeologist[685]REVENUE AND FINANCE DEPARTMENT[701]

Lottery Division[705]SECRETARY OF STATE[721]SEED CAPITAL CORPORATION, IOWA[727]SHEEP AND WOOL PROMOTION BOARD, IOWA[741] TELECOMMUNICATIONS AND TECHNOLOGY COMMISSION, IOWA[751] TRANSPORTATION DEPARTMENT[761]

Railway Finance Authority[765]TREASURER OF STATE[781]UNIFORM STATE LAWS COMMISSION1791]VETERANS AFFAIRS COMMISSION[801]VETERINARY MEDICINE BOARD[811]VOTER REGISTRATION COMMISSION[821]WORKFORCE DEVELOPMENT DEPARTMENT[871]

Labor Services Division[875]Workers’ Compensation Division [876]Workforce Development Board and

Workforce Development Center Administration Division[877]

NOTICE — AVAILABILITY OF PUBLIC FUNDS

Agencv ProgramService Delivery Area Eligible Applicants Services

Application Due Date Contract Period

Public Health Bicycle Safety Statewide Not-for-Profit Bicycle Clubs and Other Local Coalitions Which Include a Bicycle Club Identifying Specific Need

Bicycle SafetyEducation for Children 5-14

11/20/98 1/1/99 through 9/30/99

Request application packet from : Mary Harlan, Bureau of Disability and Injury PreventionDivision of Substance Abuse and Health Promotion Iowa Department of Public Health Lucas Building; Des Moines, Iowa 50319-0075 Telephone: (515) 242-6336

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NOTICE — AVAILABILITY OF PUBLIC FUNDS

Aeencv ProeramServiceDelivery Area

EligibleADDlicants Services

Application Due Date

ContractPeriod

Public Health Bucklebear Woodbury County and selected portions ofPolk County based on injury information provided by the DOT, Governor’s Traffic Safety Bureau, and Public Health statistics.

Licensed day care centers and preschools in Woodbury County and selected portions of Polk County.

Child passenger safety education and toddler seat loaner program.

11/20/98 1/1/99 through 9/30/99

Request application packet from : Mary Harlan, Bureau of Disability and Injury PreventionDivision of Substance Abuse and Health Promotion Iowa Department of Public Health Lucas Building; Des Moines, Iowa 50319-0075 Telephone: (515)242-6336

PUBLIC FU

ND

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IAB 10/7/98

IAB 10/7/98 NOTICES 691

ARC 8377A

EDUCATION DEPARTMENT[281]Notice of Intended Action

Twenty-five Interested persons, a governmental subdivision, an agency or association of 25 or more persons may demand an oral presentation hereon as provided in Iowa Code section 17A4(l)“b."

Notice is also given to the public that the Administrative Rules Review Committee may, on its own motion or on written request by any individual or group, review this proposed action under section 17A-8(6) at a regular or special meeting where the public or interested persons may be beard.

Pursuant to the authority of Iowa Code section 256.7(5), the Iowa Department of Education hereby gives Notice of Intended Action to amend Chapter 6, “Appeal Procedures,” Iowa Administrative Code.

The proposed amendments in Chapter 6 eliminate the need for a hearing panel on routine hearings, allow the filing of appeals to be accomplished by facsimile, and allow the administrative law judge to grant rehearings to eliminate the present requirement that the State Board be convened in a special meeting to grant a rehearing.

No public hearing will be held. However, any interested person may make written suggestions or comments on these proposed amendments on or before October 27,1998. Any written materials should be directed to the Legal Consultant, Office of the Director, Department of Education, Grimes State Office Building, Des Moines, Iowa 50319-0146; fax (515)281-4122.

These amendments are intended to implement Iowa Code section 290.1.

The following amendments are proposed.

Item 1. Amend rule 281—6.1(256) by rescinding the definition of “Hearing panel” and inserting the following new definition in lieu thereof:

“Hearing panel,” as used in this chapter, shall refer to the director of education, or the director’s designee, sitting as the administrative law judge and two members of the department of education staff designated by the administrative law judge to hear the presentation of evidence or oral arguments concerning appeals which are unusual or which present issues of first impression.

Item 2. Amend subrule 6.3(1) as follows:63(1) An appeal shall be made in the form of an affidavit,

unless an affidavit is not required by the statute establishing the right of appeal, which shall set forth the facts, any error complained of, or the reasons for the appeal in a plain and concise manner, and which shall be signed by the appellant and delivered to the office of the director by United States Postal Service, facsimile (fax), or personal service. The affidavit shall be considered as filed with the agency on the date of the United States Postal Service postmark, the date of arrival of the facsimile, or the date personal service is made. Delivery of-the-affidavit or other request for appeal shall notbe made by facsimile (fax); Time shall be computed as provided in Iowa Code subsection 4.1(34).

Item 3. Amend rule 281—6.13(17A) as follows:

281—6.13(17A) Application for rehearing of final decision. Any party may file an application for rehearing with the administrative law judge stating the specific grounds therefor, and the relief sought, within 20 days after the issuance of any final decision by the board. A copy of the application shall be timely mailed by the department to all parties of record not joining therein. Such application for rehearing shall

be deemed to have been denied unless the board administrative law judge grants the application within 20 days of the filing. A rehearing shall not be granted unless it is necessary to correct a mistake of law or fact.

Item 4. Amend subrule 6.14(1) as follows:6.14(1) In the event the board directs a rehearing, the

hearing panel administrative law judge, in arriving at a subsequent decision, may either review the record and arguments or may proceed with either a full or partial hearing under the appeal hearing provisions of this chapter.

ARC 8376AEDUCATION DEPARTMENT[281]

Notice of Intended ActionTVenty-five interested persons, a governmental subdivision, an agency or association of 25 or more persons may demand an oral presentation hereon as provided in Iowa Code section 17A.4(1)“A."

Notice is also given to the public that the Administrative Rules Review Committee may, on its own motion or on written request by any individual or group, review this proposed action under section 17AJJ(6) at a regular or special meeting where the public or interested persons may be beard.

Pursuant to the authority of Iowa Code section 256.7(5), the Iowa Department of Education hereby gives Notice of Intended Action to amend Chapter 26, “Driver Education,” Iowa Administrative Code.

The proposed amendments establish new qualifications for a driver education instructor and eliminate the waiver provision of 180 minutes of behind-the-wheel street driving.

No public hearing will be held. However, any interested person may make written suggestions or comments on these proposed amendments on or before October 27,1998. Any written materials should be directed to the Bureau of Administration and School Improvement Services, Department of Education, Grimes State Office Building, Des Moines, Iowa 50319-0146; fax (515)281-7700.

These amendments are intended to implement 1998 Iowa Acts, House File 2528.


ITEM 1. Rescind rule 281—26.1(256) and adopt the following new rule in lieu thereof:

281—26.1(256) Licensure and approval. To be qualified as a classroom or laboratory driver education instructor, a person shall have satisfied the educational requirements for a teaching license at the elementary or secondary level and hold a valid license to teach driver education in the public schools of this state. Street or highway driving instruction may be provided by a person qualified as a classroom driver education instructor or a person certified by the department of transportation.

ITEM 2. Rescind subrule 26.2(3).

692 NOTICES IAB 10/7/98

ARC 8374A


Twenty-five interested persons, a governmental subdivision, an agency or association of 25 or more persons may demand an oral presentation hereon as provided in Iowa Code section 17A.4(I)W6.”

Notice is also given to the public that the Administrative Rules Review Committee may, on its own motion or on written request by any individual or group, review this proposed action under section 17A.8(6) at a regular or special meeting where the public or interested persons may be heard.

Pursuant to the authority of Iowa Code section 256.7(5), the Iowa Department of Education hereby gives Notice of Intended Action to adopt a new Chapter 48, “Certified School to Career Program Approval,” Iowa Administrative Code.

The proposed rules implement program approval rules for a new program authorized by 1998 Iowa Acts, Senate File 2296, sections 15 to 21. The Certified School to Career Program Approval is designed to provide an articulated sequential program of study, including secondary and postsecondary components, resulting in a diploma, associate’s degree, or other credential and utilizing paid work-site internships in partnership with an employer to prepare participants for specific employment. Additionally, the program assists participants in preparing for a career field and provides postsecondary education financing and employment opportunities in Iowa.

Public comments concerning the proposed new chapter will be accepted until 4 p.m. on October 29,1998. Interested persons may submit written or oral comments by contacting Jerda Garey, Chief, Bureau of Technical and Vocational Education, Department of Education, Grimes State Office Building, Des Moines, Iowa 50319; telephone number (515) 281-3542.

A public hearing to receive comments about the proposed new chapter will be held on October 29,1998, from 2 to 4 p.m. in the Department of Economic Development, ICN Room, 200 East Grand Avenue, Des Moines, Iowa.

ICN hearing sites will be at:Kirkwood Community College, ICN Classroom 4, 6301

Kirkwood Boulevard S.W., Cedar Rapids, Iowa;Iowa Western Community College, Looft Hall, 2700 Col

lege Road, Council Bluffs, Iowa;North Iowa Area Community College, Activity Center

106, 500 College Drive, Mason City, Iowa;Indian Hills Community College, Advanced Technology

Center, Room 108,525 Grandview Avenue, Ottumwa, Iowa;Western Hills Area Education Agency, Room 209A, 1520

Momingside Avenue, Sioux City, Iowa.These rules are intended to implement 1998 Iowa Acts,

Senate File 2296, sections 15 to 21.

The following new chapter is proposed:

CHAPTER 48CERTIFIED SCHOOL TO CAREER

PROGRAM APPROVAL

281—48.1(77GA,SF2296) Purpose. The purpose of the certified school to career program is to provide an articulated sequential program of study, including secondary and postsecondary components (with the option of registered apprenticeship) and paid internship, resulting in a diploma, associate’s degree, or other credential in partnership with an employer to prepare participants for a career field. Additionally,

the program provides the participant with postsecondary education financing and employment opportunities in Iowa.

281—48.2(77GA,SF2296) Definitions. For the purpose of this chapter, the following definitions apply:

“Apprenticeship program” means a program that is registered by the Bureau of Apprenticeship and Training, U.S. Department of Labor, and evidenced by a certificate of registration as meeting the standards of the Bureau of Apprenticeship and Training and includes a secondary school component. The apprenticeship program is one of the two eligible school to career programs.

“Approved program” means a program other than an apprenticeship program that has been reviewed and approved by the state board of education. A public or private secondary school or postsecondary institution, or both, is the entity responsible for submission of the program, coordination of the required parties, program development, and coordination of the training agreement(s).

“Articulation” means the process of mutually agreeing upon skills, knowledge, and performance levels transferable among approved apprenticeship programs, secondary schools and postsecondary institutions for advanced placement or credit in a school to career program.

“Articulation agreement” means the written document that includes the decisions agreed upon by the secondary school(s) and eligible postsecondary institution(s) and the process used by the institution or apprenticeship program to grant advanced placement or credit.

“Career field” means an occupational area.“Certified school to career program” or “certified pro

gram” means a sequenced and articulated secondary and postsecondary program registered as an apprenticeship program under 29 CFR. Subtitle A, Part 29, which is conducted pursuant to an agreement as provided in 1998 Iowa Acts, Senate File 2296, section 18, or a program approved by the state board of education, in conjunction with the department of economic development, as meeting the standards enumerated in 1998 Iowa Acts, Senate File 2296, section 17, that integrates a secondary school curriculum with private sector job training which places participants in job internships, and which is designed to continue into postsecondary education and that will result in teaching new skills and adding value to the wage-earning potential of participants and increase their long-term employability in the state and which is conducted pursuant to an agreement as provided in 1998 Iowa Acts, Senate File 2296, section 18.

“Department” means the Iowa department of education.“Individual training plan” means a written statement of

the training commitment from institutions involved including an outline of a definite plan of progressive experiences and learning activities and serves as a schedule or step-by- step plan for training to be used by the employer, school, postsecondary institution, and participant.

“Internship” means work-site learning in which a three- way partnership is established among the secondary school or postsecondary institution, employer, and participant for the purpose of providing experiences related to the participant’s career field. A signed agreement among all parties outlining a participant’s individual training plan is a necessary component of an internship.

“Mentor” means an employee(s) who possesses the skills and knowledge of the occupation to be mastered by a participant and who instructs and critiques the performance of the participant in accordance with industry standards.

“Minimum academic standards” means the set of standards and performance levels agreed to by the employer and

LAB 10/7/98 NOTICES 693

EDUCATION DEPARTMENT[281](cont’d)

participant that must be maintained throughout the program for the participant to be eligible for financial program benefits and the academic requirements established by the secondary school and postsecondary institutions.

“Participant” means an individual between the ages of 16 and 24 who is enrolled in a public or private secondary school or postsecondary institution and who initiated participation in a certified school to career program as part of the individual’s secondary school education.

“Postsecondary institution” means an institution of higher learning under the control of the state board of regents, a community college established under Iowa Code chapter 260C, or an accredited private institution as defined in Iowa Code section 261.9, subsection 1.

“Sponsor” means any person, association, committee, or organization operating a school to career program and in whose name the program is or will be registered or approved.

“Teacher” means the individual who holds an appropriate license and endorsement and who is responsible for the oversight of the participant’s preparation and participation, in school and in the work site, and for the development of the individual training plan.

281—48J(77GA,SF2296) Program requirements. A school to career program approved by the state board of education shall comply with the following minimum requirements:

1. An application completed on a form provided by the department of education.

2. Participation of a public or private secondary school, postsecondary institution, and one or more employers.

3. An agreement developed and agreed to by all entities participating in the program. The agreement shall identify the program sponsor and describe the roles and responsibilities of each of the entities and other administrative issues as required by Iowa Code chapter 28E.

4. Program’s standards and required performance levels of participants approved by the employer(s).

5. Specific career field content and related academic instruction during the junior and senior year of the secondary component.

6. One or more years of postsecondary education in the career field.

7. Equivalent of three paid summer internships supervised by a teacher for each participant beginning after completion of the junior year in high school.

8. Not less than a two-year work commitment provided for the participant following the participant’s completion of the program.

9. A mentor assigned by the employer in the career field of the participant.

10. Compliance with all state and federal laws pertaining to the workplace.

11. Instruction in health and safety related to the career field and industry the participant is preparing to enter.

12. A program evaluation component for gathering data that can be utilized to improve the program and report the impact of the program to members of the public.

13. Assessment services that are utilized to determine the supportive services (including remedial instruction) needed for each participant to successfully complete the program.

14. Recruitment strategies that encourage the full participation of all participants who desire to enter the career field that the program is preparing the participant to enter regardless of gender, race, ethnicity or disability.

15. An individual training plan developed for each participant and agreed to by the participant, public or private sec

ondary school, postsecondary institution and sponsoring employer. The plan shall include, but not be limited to, the following: identification of the parties involved; statement of program purposes; career field of the participant; duration of the training period; time schedule of work; classroom instruction, including internships; beginning wage; employer responsibilities; school and teacher responsibilities; participant responsibilities; parent/guardian responsibilities; name, date of birth, age, address, and telephone number of participant; signatures of participant, parent/guardian where applicable, employer, and teacher; accident and liability insurance provisions; rotation across all work processes of the career field; causes for imposition of penalties or other disciplinary action; nondiscrimination statement; schedule of special training sessions provided by employer; tasks to be learned and performed on the job; employer-established performance and academic standards; safety instruction; schedule of specific job-related and academic instruction; and assessment and evaluation process and timeline.

16. An approval process which requires an assurance that the individual plan will be developed and monitored.

281—48.4(77GA,SF2296) Approval process. The private or public secondary school or postsecondary institution submits a request for program approval to the state board of education. The department of education staff will review the application to determine its eligibility for approval and forward the recommendation to the state board of education. Upon state board action, the department will notify the program applicant and the department of economic development of the approval of the certified school to career program. Refer to Iowa Code chapter 11 and sections 15.104 and 15.106 for other procedures.

48.4(1) The department of education and state board of education shall utilize the following criteria in the review and approval of the certified school to career program plans. The plan shall include evidence of the following:

a. A sequential two-year secondary program which is articulated into a postsecondary program of one or more years in the career field and includes a listing of any other institutions with which the program is articulated.

b. Participation of a public or private secondary school, postsecondary institution, and one or more employers. Other sponsor(s) and their role(s) are identified.

c. An identified need for the program with appropriate labor market trend information and data.

d. A description of skills and knowledges needed for entry into the career field.

e. A description of the courses and their length designed to deliver proposed program with evidence that instruction includes competency-based specific career field content in the secondary and postsecondary components and that related academic instruction is also identified in the two-year secondary component.

f. A description of program evaluation component for gathering data that can be utilized to improve the program and report the impact of the program to members of the public.

g. Evidence of instruction in health and safety related to the career field and industry the participant is preparing to enter.

h. A description of the recruitment strategies that will encourage the full participation of all participants who desire to enter the program.

i. A description of the supportive services that will be provided to program participants to enable their successful participation in the program.

694 NOTICES LAB 10/7/98

EDUCATION DEPARTMENT[281 ](cont ’d)

48.4(2) The following assurances shall be provided:a. Participating employees) agrees to provide the

equivalent of three paid summer internships and two years of work experience following program completion.

b. Individual training plans will be developed and monitored for each participant.

c. Employer(s) will select a mentor for each student in the program career field, and the mentor will receive appropriate training.

d. Assessment services are utilized to determine the supportive services needed for each participant to successfully complete the program.

e. Program complies with all state and federal laws pertaining to the workplace.

f. Instructors teaching in this program will be appropriately licensed.

g. Program is jointly administered and appropriate contracts are in place.

h. Program complies with all federal and state laws which prohibit discrimination on the basis of race, color, national origin, gender, disability, religion, creed, age, or marital status in educational programs.

i. Services to students with disabilities are provided in the least restrictive environment that will meet their needs.

ARC 8378A


Twenty-five Interested persons, 8 governmental subdivision, an agency or association of 25 or more persons may demand an oral presentation hereon as provided in Iowa Code section 17A.4(1)“A."

Notice is also given to the public that the Administrative Rules Review Committee may, on its own motion or on written request by any individual or group, review this proposed action under section 17A^(6) at a regular or special meeting where the public or interested persons may be heard.

Pursuant to the authority of Iowa Code section 256.7(5), the Iowa State Board of Education hereby gives Notice of Intended Action to adopt Chapter 69, “Waiver of School Breakfast Program Requirement,” Iowa Administrative Code.

This new chapter allows for the application for waiver of the requirement that all school districts shall operate or provide for the operation of school breakfast programs at all public schools in each district. Waivers may be granted for a period of one year. The waiver must be approved by the Iowa State Board of Education.

A public hearing will be held November 2,1998, at 1 p.m. in the State Board Room, Second Floor, Grimes State Office Building, Des Moines, Iowa. Written or oral comments may be directed to Julia Thorius, Chief, Bureau of Food and Nutrition, Education Department, Grimes State Office Building, Des Moines, Iowa 50319; telephone (515) 281-5356, by November 2,1998.

These rules are intended to implement Iowa Code section 283A.2.

The following new chapter is proposed.

CHAPTER 69WAIVER OF SCHOOL BREAKFAST

PROGRAM REQUIREMENT

281—69.1(283A) General statement Applications for waiver of the requirement that all school districts shall operate or provide for the operation of school breakfast programs at all public schools in each district effective July 1,1999, until July 1, 2000, are subject to approval by the Iowa state board of education as provided in Iowa Code section 283A.2(3).

281—69.2(283A) Definitions. For purposes of clarity, the following definitions are used throughout this chapter:

“Department” means the Iowa department of education.“Nutritionally adequate meal” means a lunch or breakfast

which meets the minimum criteria for eligibility for federal reimbursement under the federal National School Lunch Act of 1946 and the federal Child Nutrition Act of 1966.

“School” means a public school of high school grade or under.

“School board” means a board of school directors regularly elected by the registered voters of a school corporation or district of the state of Iowa.

“School breakfast or lunch program” means a program under which breakfasts or lunches are served by any public school in the state of Iowa on a nonprofit basis to children in attendance, including any such program under which a school receives assistance out of funds appropriated by the Congress of the United States.281—693(283A) Institutions impacted. Iowa Code section 283A.2 states that all public school districts shall operate or provide for the operation of school breakfast programs at all public schools in each district beginning with the July 1, 1999, school year unless the state board of education has granted a waiver. Under Iowa Code section 283A.2(3), waivers are only available for the 1999-2000 school year.

281—69.4(283A) Criteria for applying for a waiver. Each school or school district unable to meet the requirement to provide a school breakfast program may, not later than June 1,1999, for the school year beginning July 1,1999, file, on forms provided by the department, a written request to the state board of education for a waiver of the breakfast program requirement for the school or school district.

The written request for waiver shall be made by the school district for the entire district or for one or more schools within the district. The waiver request shall include the following components:

1. The name(s) of the school or school district applying for the waiver, agreement number, contact person, and telephone number.

2. The reason(s) for which the waiver is being requested and corresponding documentation.

3. The percentage of students in attendance at the school during the month of March 1999 who were eligible for free or reduced price meals.

4. Signatures of the president of the local school board, the school food authority, and the superintendent.

281—69.5(283A) Approval of waiver applications. The department shall receive all requests for waiver of the breakfast program requirement. The department will evaluate the requests and make recommendation for approval or denial based on the criteria established by the state board of education. The state board of education will approve or deny all waiver requests. The criteria for evaluating the waiver request shall include the following:

1. Required components including sufficient detail to justify the reason for the waiver request.


EDUCATION DEPARTMENT!281](cont’d)

2. Documentation that less than 35 percent of the students in attendance at the school during the month of March 1999 were eligible for free or reduced price meals under the federal National School Lunch Act of 1946 and the federal Child Nutrition Act of 1966.

3. A valid reason for requesting a waiver:• A breakfast program was implemented in this facility

during the 1997-98 or 1998-99 school year and participation was less than 15 percent of enrollment, or

• A survey was conducted of all households in the school’s attendance area within the past year and less than 25 percent expressed interest in participating in a breakfast program, or

• The district school food service program is operating with a negative balance, or

• A breakfast program is offered to all students in the district although a breakfast program is not available in all school buildings, or

• Any other circumstance as determined by the state board that warrants the granting of the waiver request.281—69.6(283A) Notification. The department will notify school districts if the request for waiver of the school breakfast program requirement for the school year beginning July 1,1999, has been approved or denied. The notification will be mailed within ten working days of the decision by the state board of education.

281—69.7(283A) Schools granted a waiver from the school breakfast program requirement. School districts granted a waiver for the school year beginning July 1,1999, shall be required to file a plan for implementing the required breakfast program for the following school year. The written plan shall be on file with the department no later than May 31, 2000.281—69.8(283A) Appeal of waiver denial. A decision by the state board to deny a waiver is final. Any applicant may appeal the denial of a properly submitted waiver application to district court under the provisions of Iowa Code chapter 17A.

These rules are intended to implement Iowa Code section 283A.2.

ARC 8371A


Twenty-five interested persons, a governmental subdivision, an agency or association of 25 or more persons may demand an oral presentation hereon as provided in Iowa Code section I7A.4(1)W6.”


Pursuant to the authority of Iowa Code section 256.7(5), the Iowa State Board of Education hereby gives Notice of Intended Action to adopt Chapter 84, “Financial Incentives for National Board Certification,” Iowa Administrative Code.

This new chapter creates two financial incentive programs for Iowa teachers receiving National Board Certification (NBC) and provides guidelines to administer both programs.

Public comments concerning the new chapter will be accepted until November 5,1998. Interested persons may submit written or oral comments by contacting Ann Molis, Of

fice of the Director, Department of Education, Grimes State Office Building, Des Moines, Iowa 50319; telephone (515)281-5296.

A public hearing will be held November 5,1998, at 9 a.m. in the State Board Room, Second Floor, Grimes State Office Building, Des Moines, Iowa.

These rules were also Adopted and Filed Emergency and are published herein as ARC 8372A. The content of that submission is incorporated by reference.

These rules are intended to implement 1998 Iowa Acts, Senate File 2366, section 5.

ARC 8390A

HISTORICAL DIVISION[223]Notice of Intended Action

Twenty-five interested persons, a governmental subdivision, an agency or association of 25 or more persons may demand an oral presentation hereon as provided in Iowa Code section 17A.4(1)“6.”


Pursuant to the authority of Iowa Code sections 17A.3 and 303.1A the Historical Division of the Department of Cultural Affairs hereby gives Notice of Intended Action to amend Chapter 49, “Historical Resource Development Program,” Iowa Administrative Code.

The proposed amendments will clarify existing rules governing the HRDP program, will streamline the review process, and will change the application deadline from May 1 to January 15.

Any interested person may make written suggestions or comments on the proposed amendments on or before October 27,1998. Such written material should be directed to the Administrator, State Historical Society of Iowa, 600 East Locust, Des Moines, Iowa 50319, or fax (515)242-6498. Persons who wish to convey their views orally shall contact the Administrator at (515)281-8837 or at the administrative offices on the third floor of the State Historical Building, 600 East Locust, Des Moines, Iowa.

A public hearing will be held on October 27, 1998, at 10 a.m. in the Tone Board Room of the State Historical Building, 600 East Locust, Des Moines, Iowa, at which time persons may present their views either orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record, and to confine their remarks to the subject of the amendments.

These amendments are intended to implement Iowa Code sections 303.1A 303.16, and 455A.15 to 455A.20.


Item 1. Amend rule 223—49.1(303) as follows:

223—49.1(303) Purpose. The Iowa historical resource development program provides grants and loans to preserve, conserve, interpret, educate the public about and enhance the historical resources of the state.

Item 2. Amend rule 223—49.2(303) as follows:Amend the following definitions:“Documentary collections” means collections of current

or historical materials that are or might become valuable in interpreting Iowa history including, but not limited to, government records, newspapers, photographic images, machine-readable data, manuscripts, and printed materials.


HISTORICAL DIVISION[223](cont’d)

“Historical resource” means any site that is listed or declared eligible by the state historic preservation officer for listing by the state historic preservation officer on the National Register of Historic Places or personal property which has inherent historical value due to its association with the history of Iowa or the heritage of its people.

Adopt the following new definitions in alphabetical order:

“Education” means a project that has some component of training as an activity. Any training must include “how to” and “why” preserve historical resources as a component.

“In-kind match” means donated material, services, or labor which is used for the grant project.

Item 3. Amend subrule 49-3(1), paragraph “a,” as follows:

a. Historic preservation. Project applications in this category may include, but are not limited to, acquisition, development or preservation of real property eligible for,-of listed onT the National Register of Historic Places until May 1,1997.-Effective May 1,1998, real property in this category must be listed on the National-Register of Historic Places. Projects in this category may also include acquisition, development, or preservation of archaeological property listed on or eligible for the National Register of Historic Places; survey of prehistoric and historic sites; nomination of properties to the National Register of Historic Places; interpretation, public education, staff training or consultation related to historic preservation; and the equipment and facilities necessary for any of the foregoing tasks.

Item 4. Amend subrule 49-3(2), paragraph “d,” as follows:

d. Museum or documentary collections. All proposed projects in the museum or documentary collections categories which propose work on real property listed on or determined eligible for the National Register of Historic Places shall adhere to the recommended approaches in the Secretary of the Interior’s Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings (Revised 1990), published by the National Park Service. Project applications which propose work on real property which is 50 years old or older but is not yet listed on or determined eligible for the National Register of Historic Places are strongly encouraged to adhere to the Secretary of the Interior’s Standards for Rehabilitation.

Item 5. Amend subrule 49.5(2), paragraph “d,” as follows:

d. Letter from National Park Service, or the state historic preservation officer, approving Certified Local Government status, if appropriate;

Item 6. Amend subrule 49.5(3) as follows:49.5(3) Annual deadlines.

—If an applicant wishes to have an application critiquedfor technical requirements and general eligibility; the draftapplication plus one copy must be postmarked by March 1.

b a. Applicants shall submit the original application and 44 six copies to the REAP/HRDP coordinator.

e b. Applications shall be postmarked by have a United States Postal Service postmark dated on or before January 15, or be delivered to the REAP/HRDP office during regular business hours no later than May-4 January 15.

Item 7. Amend subrule 49.6(1), paragraphs “c” and “d,” as follows:

c. The state historical society board of trustees shall review and make funding recommendations to the administrator of the society no later than October June 1 of each year.

d. The administrator shall award funding and provide notification to recipients no later than October June 15 of each year.

ITEM 8. Amend subrule 49.6(3), paragraph “e,” as follows:

e. Limitations. Emergency funding shall be limited to no more than $30,000 $15,000 per application and no more than $30,000 $15,000 per applicant in a 12-month period. This limitation shall not affect funds acquired by other than state appropriations.

Item 9. Amend subrule 49.7(1), paragraph “b,” as follows:

Amend subparagraph (7) as follows:(7) All contracts shall be completed within 24 30 months

from the date of the signature by the administrator of the society.

Adopt the following new subparagraph:(18) The cost of hiring professional consultants to pro

vide needed technical guidance during project implementation shall be included as a part of each grant application and contract.

Item 10. Rescind subrule 49.7(2), paragraph “f,” and adopt the following new paragraph in lieu thereof:

f. All grantees shall submit documentation of the issuance of funding acknowledgements to local legislators and press releases to local media, describing projects or programs funded with REAP/HRDP funds, specifically to include the following credit line: “This project was partially supported by a Resource Enhancement and Protection (REAP)/Historical Resource Development Program (HRDP) grant from the State Historical Society of Iowa.” Permanent sign-age will be provided by the state to each grantee. All signs shall be displayed in a public area for a time period of no less than 36 months.

ARC 8362A

HUMAN SERVICES DEPARTMENT[441]

Notice of Intended ActionTwenty-five interested persons, a governmental subdivision, an agency or association of 25 or more persons may demand an oral presentation hereon as provided in Iowa Code section I7A.4(1)M6.”


Pursuant to the authority of Iowa Code section 249A.4, the Department of Human Services proposes to amend Chapter 78, “Amount, Duration and Scope of Medical and Remedial Services,” appearing in the Iowa Administrative Code.

These amendments establish prior authorization requirements which must be met for Medicaid payment to be made for drugs used for treatment of male sexual dysfunction. Currently marketed drugs in this class are Viagra, Caveiject, Muse, and yohimbine. For prior authorization to be granted,


HUMAN SERVICES DEPARTMENT^ 1 ](cont’d)

the patient must be 21 years of age or older, have a confirmed diagnosis of impotence of organic origin or psychosexual dysfunction, and not be taking any medications which are contraindicated for concurrent use with the drug prescribed for treatment of male sexual dysfunction.

These drugs are not necessary to sustain life but are considered “quality of life” drugs. Most third-party payors have established limits on reimbursement for the drugs.

The Medicaid Drug Utilization Review Commission has recommended that the drugs, with the exception of yohimbine, be limited to four doses in a 30-day period, which is within the range of what other payors are allowing. These amendments establish that limit.

The 72-hour emergency supply rule does not apply for these drugs.

Consideration will be given to all written data, views, and arguments thereto received by the Bureau of Policy Analysis, Department of Human Services, Hoover State Office Building, Des Moines, Iowa 50319-0114, on or betore October 28,1998.

These amendments are intended to implement Iowa Code section 249A.4.


Item 1. Amend subrule 78.1(2), paragraph “a,” subparagraph (3), by adding the following new paragraphs immediately above the last two unnumbered paragraphs:

Prior authorization is required for drugs used for the treatment of male sexual dysfunction. For prior authorization to be granted, the patient must:

1. Be 21 years of age or older.2. Have a confirmed diagnosis of impotence of organic

origin or psychosexual dysfunction.3. Not be taking any medications which are contraindi

cated for concurrent use with the drug prescribed for treatment of male sexual dysfunction.

Approval for these drugs, with the exception of yohimbine, will be limited to four doses in a 30-day period.

The 72-hour emergency supply rule found below and at paragraph 78.28(l)“d” does not apply for drugs used for the treatment of male sexual dysfunction. (Cross-reference 78.28(l)“d”(13))

Item 2. Amend subrule 78.28(1), paragraph “d,” by adding the following new subparagraph (13):

(13) Prior authorization is required for drugs used for the treatment of male sexual dysfunction. For prior authorization to be granted, the patient must:

1. Be 21 years of age or older.2. Have a confirmed diagnosis of impotence of organic

origin or psychosexual dysfunction.3. Not be taking any medications which are contraindi

cated for concurrent use with the drug prescribed for treatment of male sexual dysfunction.

Approval for these drugs, with the exception of yohimbine, will be limited to four doses in a 30-day period.

The 72-hour emergency supply rule found above and at 78.1(2)“a”(3) does not apply for drugs used for the treatment of male sexual dysfunction. (Cross-reference 78.1(2)“a”(3))

ARC 8383A

HUMAN SERVICES DEPARTMENT [441]

Notice of Intended ActionTwenty-five interested persons, a governmental subdivision, an agency or association of 25 or more persons may demand an oral presentation hereon as provided in Iowa Code section I7A.4(1)**6.”

Notice is also given to the public that the Administrative Rules Review Committee may, on its own motion or on written request by any individual or group, review this proposed action under section 17A-8(6) at a regular or special meeting where the public or interested persons may be heard.

Pursuant to the authority of Iowa Code section 249A.4, the Department of Human Services proposes to amend Chapter 83, “Medicaid Waiver Services,” appearing in the Iowa Administrative Code.

This amendment adds five counties, Audubon, Henry, Shelby, Sioux, and Taylor, to the Elderly Waiver program effective April 1,1999. With this addition, all counties in the state have the Elderly Waiver program. Since all counties will now have the Elderly Waiver program, this amendment replaces the eligibility requirement for residence in the listed counties with a requirement of residence in the state.

Consideration will be given to all written data, views, and arguments thereto received by the Bureau of Policy Analysis, Department of Human Services, Hoover State Office Building, Des Moines, Iowa 50319-0114, on or before October 28,1998.

This amendment is intended to implement Iowa Code section 249A.4.

The following amendment is proposed.

Rescind subrule 83.22(1), paragraph “b,” and insert the following new paragraph in lieu thereof:

b. A resident of the state of Iowa.

ARC 8380A

INSPECTIONS AND APPEALS DEPARTMENT[481]

Notice of Intended ActionTwenty-five interested persons, a governmental subdivision, an agency or association of 25 or more persons may demand an oral presentation hereon as provided in Iowa Code section 17A.4(I)Mb.”


Pursuant to the authority of Iowa Code section 135H.10, the Department of Inspections and Appeals proposes to amend Chapter 41, “Psychiatric Medical Institutions for Children (PMIC),” Iowa Administrative Code.

This amendment updates references to reflect changes in Iowa Code chapters 135H and 237.

Interested persons may make written comments or suggestions on the proposed amendment on or before October 27, 1998. Written materials should be addressed to the Director, Department of Inspections and Appeals, Lucas State Office Building, Des Moines, Iowa 50319-0083; fax (515)242-6863.

This amendment is intended to implement Iowa Code section 135H.7.



INSPECTIONS AND APPEALS DEPARTMENT[481](cont’d)

Amend rule 481—41.2(135H) as follows:481—41.2(135H) Application for license. In order to obtain an initial license for a PMIC, the applicant must comply with Iowa Code Supplement chapter 135H and the rules in this chapter. Each applicant must submit the following documents to the department:

1. A completed Psychiatric Medical Institutions for Children application;

2. A copy of a department of human services license as a comprehensive residential care facility issued pursuant to Iowa Code section 237.3(2) “a, ” or a copy of a license granted by the department of public health pursuant to Iowa Code section 125.13, as a facility which provides substance abuse treatment;

3. A floor plan of each floor of the facility on 8V2" by 11" paper showing:

Room areas in proportion,Room dimensions,Numbers for all rooms including bathrooms,A designation of use for each room, and Window and door locations.4. A photograph of the front and side elevation of the fa

cility;5. The PMIC license fee; and6. Evidence of:Accreditation by the joint commission on accreditation of

health care organizations (JCAHOs);Department of public health certificate of need; Department of human services determination of approval;

andThree years under the direction of an agency which has

operated a facility:• Licensed under Iowa Code section 237.3(2)“a”(3), or• Providing services exclusively to children or adoles

cents and the facility meets or exceeds the requirements for licensure under Iowa Code section 237.3(2)“a”(3).

This rule is intended to implement Iowa Code Supplement sections 135H.4 and 135H.5.

ARC 8381A

INSPECTIONS AND APPEALS DEPARTMENT[481]

Notice of Intended ActionTwenty-five interested persons, a governmental subdivision, an agency or association of 25 or more persons may demand an oral presentation hereon as provided in Iowa Code section 17A.4(1)“6.”


Pursuant to the authority of Iowa Code section 135C.14, the Department of Inspections and Appeals proposes to amend Chapter 58, “Intermediate Care Facilities,” Iowa Administrative Code.

The amendment modifies the time period that an acting administrator can be appointed to assume administrative responsibilities for an intermediate care facility under specified circumstances. Under the current rule, an acting administrator can be appointed for consecutive 6-month periods. The amendment clarifies that the 6-month time period under which a facility may have an acting administrator must be limited to one appointment during any 12-month period.

Any interested person may make written comments or suggestions on the amendment on or before October 27, 1998. Written materials should be addressed to the Director, Department of Inspections and Appeals, Lucas State Office Building, Des Moines, Iowa 50319-0083; fax (515) 242-6863.

A public hearing will be held on October 27, 1998, at 1 p.m. in the Director’s Conference Room, Second Floor, Lucas State Office Building, East 12th and Grand Avenue, Des Moines, Iowa. Persons may present their views orally or in writing at the public hearing.

This amendment is intended to implement Iowa Code section 135C.14(8).

The following amendment is proposed.Amend subrules 58.8(1) and 58.8(4) as follows:58.8(1) Each intermediate care facility shall have one

person in charge, duly licensed as a nursing home administrator or acting in a provisional capacity in accordance with the laws of the state of Iowa and the rules of the Iowa boardof examiners for nursing home administrators. (Ill)

58.8(4) A provisional administrator may be appointed on a temporary basis by the intermediate care facility licensee to assume the administrative responsibilities for an intermediate care facility for a-period not to exceed six months duties when the facility, through no fault of its own, the home has lost its administrator and has net been able unable to replace the administrator provided that no facility licensed under Iowa Code chapter 135C shall be permitted to have a provisional administrator for more than 6 months in any 12-month period and further provided that:

a. The department has been notified prior to the date of the administrator’s appointment; (III)

b. The board of examiners for nursing home administrators has approved the administrator’s appointment and has confirmed such appointment in writing to the department. (Ill)

ARC 8393ANATURAL RESOURCE

COMMISSION [571]Notice of Intended Action

Twenty-five interested persons, a governmental subdivision, an agency or association of 25 or more persons may demand an oral presentation hereon as provided in Iowa Code section 17A.4(1)M6.”

Notice is also given to the public that the Administrative Rules Review Committee may, on its own motion or on written request by any individual or group, review this proposed action under section 17A8(6) at a regular or special meeting where the public or interested persons may be heard.

Pursuant to the authority of Iowa Code subsection 455A.5(6), the Natural Resource Commission hereby gives Notice of Intended Action to amend Chapter 15, “General License Regulations,” Iowa Administrative Code.

These amendments will enable the Department to establish the day of the month that depositary monthly reports are due. The amendments eliminate references to “stamps” which will not be sold beginning in the 1999 license year. The amendments also provide a loss value of $25 for blank generic license forms which have no fixed value.

Any interested person may make written suggestions or comments on the proposed amendments on or before October 29, 1998. Such written materials should be directed to the License Bureau, Department of Natural Resources,


NATURAL RESOURCE COMMISSION[571](cont’d)

Wallace State Office Building, Des Moines, Iowa 50319-0034; fax (515)281-8894. Persons who wish to convey their views orally should contact the license Bureau at (515)281-8688 or at the License Bureau offices on the fourth floor of the Wallace State Office Building.

There will be a public hearing on October 29, 1998, at 8:30 a.m. in the Fifth Floor East Conference Room of the Wallace State Office Building at which time persons may present their views either orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of the amendments.

Any persons who intend to attend a public hearing and have special requirements such as hearing or mobility impairments should contact the Department of Natural Resources and advise of specific needs.

These amendments are intended to implement Iowa Code sections 483A. 10 through 483A. 15.


Item 1. Amend subrule 15.2(1) as follows:15,2(1) Depositary designation. The director may desig

nate a retail business establishment, an office of a government entity, or a nonprofit corporation as a depositary for the sale of hunting and fishing licenses and stamps in accordance with the provisions of this rule.

Item 2. Amend subrule 15.2(3), paragraph “a,” as follows:

a. Condition of security. A surety bond shall generally provide that the applicant render a true account of, and turn over all moneys, license blanks, stamps^ and duplicates when requested to do so by the director or an authorized representative, and to comply with all applicable provisions of the application, the Iowa Administrative Code, and the Iowa Code.

Item 3. Amend subrule 15.2(4) as follows:15.2(4) Approval of application and security. The direc

tor will approve the application upon the receipt of a satisfactory bond, a collateral assignment of deposit, or a letter of credit and a determination that the credit references are satisfactory. However, the director reserves the right not to approve any application received from a party whose depositary agreement has previously been terminated by the department for cause. Upon approval by the director, the agency will provide the depositary with license blanks, stamps, reporting forms, and instructions.

Item 4. Amend subrule 15.2(5), paragraphs “a,” “b” and “c,” as follows:

a. Monthly reports. The monthly license sale report A full and complete monthly sales report, including duplicate copies of the licenses sold and a check or other monetary instrument in the amount due shall be remitted to the department by-the fifth of the following month on a prescheduled due date of the following month. A depositary which does not provide the monthly report to the department by the fifteenth of the following month within 10 days after the due date shall be considered seriously delinquent. However, if the office or business is operated on a seasonal basis, a monthly report is not required for any month that the office or business is not open to the public.

b. Annual report. The annual report for all sales for the calendar year and including the return of all unused license blanks and stamps shall be remitted to the department by January 31 of each year. An annual report shall also be submitted at the time a depositary is terminated for any reason during the calendar year. This report must be received within

15 days after the director receives the notice of termination. A depositary will be considered seriously delinquent if the annual report is not received by February 15.

c. Accountability. The depositary shall be fully accountable to the state for all proceeds collected from the sale of licenses and stamps. This accountability shall not be diminished by reason of bankruptcy, fire loss, theft loss, or other similar reason.

Item 5. Amend subrule 15.2(5), paragraph “e,” as follows:

e. Termination of depositary. A depositary may terminate the agreement at any time by notifying the director by certified mail, return receipt requested. The termination shall be effective 30 days after the receipt of the notice by the director, and after the depositary has fully accounted for all moneys and unused license blanks and stamps. The director may terminate the depositary agreement and require an immediate and full accounting of all moneys and unused license blanks and stamps under any of the following circumstances:

(1) The occurrence of a third serious delinquency during any consecutive six-month period.

(2) Not making an insufficient funds check good within 10 days after proper notice by the director.

(3) Failure to correct a serious delinquency within 15 calendar days.

(4) Knowingly placing a date, other than the correct date, on any license.

(5) Knowingly selling a resident license or stamp to a nonresident, or selling a senior citizen or disabled license to a person not qualified for such license.

(6) Charging more than the statutory writing fee.(7) Refusal to sell a license or stamp to any individual by

reason of race, creed, nationality, or religion.(8) Expiration, of bond coverage or cancellation of bond,

coverage by the surety certificate of deposit, or letter of credit.

(9) A depositary fails to make a full and complete monthly sales report and monthly remittance.

(10) A depositary, or employee of a depositary, knowingly makes a false entry on any license being sold, or knowingly issues any license to a person to whom issuance of that license is improper.

ITEM 6. Amend subrule 15.3(4) by adding the following new unnumbered paragraph at the end thereof:

The value assigned to a lost or destroyed blank license form shall be $25. This amount will be paid by the depositary to the department, except as relief from such payment is provided according to subrules 15.3(1) to 15.3(3).


ARC 8394A

NATURAL RESOURCE COMMISSION [571]

Notice of Intended ActionTwenty-five interested persons, a governmental subdivision, an agency or association of 25 or more persons may demand an oral presentation hereon as provided in Iowa Code section 17A-4(I)**6.”

Notice is also given to the public that the Administrative Rules Review Committee may, on its own motion or on written request by any individual or group, review this proposed action under section 17AJJ(6) at a regular or special meeting where the public or interested persons may be heard.

Pursuant to the authority of Iowa Code subsection 455A.5(6), the Natural Resource Commission hereby gives Notice of Intended Action to amend Chapter 45, “Boat Motor Regulations,” Iowa Administrative Code.

This amendment would establish the allowance for unrestricted horsepower for boats operated at a no-wake speed on Avenue of the Saints Lake in Bremer County. This is a 31-acre lake created during the recent construction of State Highway 218.

Any interested person may make written suggestions or comments on the proposed amendment on or before October 27, 1998. Such written materials should be directed to the Law Enforcement Bureau, Department of Natural Resources, Wallace State Office Building, Des Moines, Iowa 50319-0034; fax (515)281-6794. Persons who wish to convey their views orally should contact the Law Enforcement Bureau at (515)281-4515 or at the enforcement offices on the fourth floor of the Wallace State Office Building.

There will be a public hearing on October 27, 1998, at 10 a.m. in the Fourth Floor West Conference Room of the Wallace State Office Building at which time persons may present their views either orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record, and to confine their remarks to the subject of the amendment.

This amendment is intended to implement Iowa Code section 462A.31.


Amend subrule 45.4(2) by inserting the following new exception in alphabetical order:

Avenue of the Saints Lake, Bremer County—unrestricted horsepower at a no-wake speed.

ARC 8395ANATURAL RESOURCE


Twenty-five interested persons, a governmental subdivision, an agency or association of 25 or more persons may demand an oral presentation hereon as provided in Iowa Code section 17A.4(I)tt6.”

Notice is also given to the public that the Administrative Rules Review Committee may, on its own motion or on written request by any individual or group, review this proposed action under section 17A.8(6) at a regular or special meeting where the public or interested persons may be heard*

Pursuant to the authority of Iowa Code section 455A.5, the Natural Resource Commission hereby gives Notice of Intended Action to amend Chapter 98, “Wild Turkey Spring Hunting,” Iowa Administrative Code.

This chapter gives the regulations for hunting wild turkeys, including season dates, bag limits, method of take, license quotas and application procedures. These amendments increase the number of archery-only licenses that may be issued to one person and increase application fees.

Any interested person may make written suggestions or comments on the proposed amendments on or before October 28, 1998. Such written materials should be directed to the Wildlife Bureau Chief, Department of Natural Resources, Wallace State Office Building, Des Moines, Iowa 50319-0034; fax (515)281-6794. Persons who wish to convey their views orally should contact the Wildlife Bureau at (515)281-6156 or at the Wildlife Bureau offices on the fourth floor of the Wallace State Office Building.

Also, there will be a public hearing on October 28,1998, at 10 a.m. in the Fourth Floor Conference Room of the Wallace State Office Building at which time persons may present their views either orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of the amendments.

These amendments are intended to implement Iowa Code sections 481A.38, 481A.39, 481A.48 and 483A.7.


ITEM 1. Amend subrule 98.1(1), paragraph “b,” as follows:

b. Archery-only licenses will be valid statewide and shall be valid during the entire period open for spring turkey hunting. No person may apply for or obtain more than two archery-only licenses per year. Persons purchasing one or two archery-only license licenses shall be ineligible to purchase any other spring wild turkey hunting license.

ITEM 2. Amend rule 571—98.3(481A), introductory paragraph, as follows:

571—983(481A) Application procedure. All applications for spring wild turkey hunting licenses must be made on forms provided by the department of natural resources and returned to the office in Des Moines, Iowa, with a remittance of $22 $22.50 per license. Only one individual may apply on a single application form.


a. Combination shotgun-or-archery licenses. Applications for combination shotgun-or-archery licenses will be received and accepted from the second Monday in January through the first Friday in February or if the application bears a valid and legible U.S. Postal Service postmark applied during the same period. Incomplete or improperly completed applications, applications not meeting the above conditions, or applications received after the application period shall not be considered valid. Applications that are complete except for a zone designation shall be assigned to Zone 4. A person may submit up to two applications during the application period, provided that at least one application is for hunting period four in Zone 4 and that $22 $22.50 is submitted with each application. If applications have been received in excess of the license quota for any hunting zone or period, a drawing shall be conducted to determine which applicants shall receive licenses. If the quota for any hunting zone or period has not been filled, licenses shall be issued in the order in which applications are received beginning the second Monday in March and shall continue for five consecutive days or until the quota has been met, whichever first occurs.


NATURAL RESOURCE COMMISSION[571](cont’d)

Persons who have not previously applied for a license or were unsuccessful in the first drawing may apply for one or two licenses in any of the hunting periods for which licenses are still available. Persons who have already received one combination shotgun-or-archery license may apply for one additional license for any of the hunting periods in which licenses are still available.

Item 4. Amend rule 571—98.14(483A) as follows:

571—98.14(483A) Application procedure. All applications for nonresident spring wild turkey hunting licenses must be made on forms provided by the department of natural resources and returned to the Department of Natural Resources, Wallace State Office Building, Des Moines, Iowa 50319-0034.

Applications for any of the three spring wild turkey hunting periods shall be received and accepted from the second Monday in January through the last Friday in January. If applications are received in excess of the license quota for any hunting zone or period, a drawing shall be conducted to determine which applicants shall receive licenses. If licenses are still available for any hunting zone or period, licenses will be issued as applications are received until quotas are filled or the second Friday in March, whichever occurs first. Party applications with no more than four individuals will be accepted. No person shall submit more than one application. Incomplete or improperly completed applications, applications not meeting the above conditions, or applications received prior to or after the application period shall not be considered valid applications. The nonresident license fee shall be $55 $75.50.

ARC 8389ARACING AND GAMING


Twenty-five interested persons, a governmental subdivision, an agency or association of 25 or more persons may demand an oral presentation hereon as provided in Iowa Code section 17A.4(1)“A.”

Notice is also given to the public that the Administrative Rules Review Committee may, on its own motion or on written request by any individual or group, review this proposed action under section 17A-8(6) at a regular or special meeting where the public or interested persons may be heard.

Pursuant to the authority of Iowa Code sections 99D.7 and 99F.4, the Iowa Racing and Gaming Commission hereby gives Notice of Intended Action to amend Chapter 4, “Practice and Procedure Before the Racing and Gaming Commission,” and Chapter 10, “Thoroughbred Racing,” Iowa Administrative Code.

Items 1 and 2 distinguish between the Board hearings and Commission and administrative law judge hearings.

Item 3 more clearly defines who is eligible to claim a horse.

Item 4 more clearly defines the eligibility price of a claimed horse.

Any person may make written suggestions or comments on the proposed amendments on or before October 27,1998. Written material should be directed to the Racing and Gaming Commission, 717 E. Court, Suite B, Des Moines, Iowa 50309. Persons who wish to convey their views orally should contact the Commission office at (515)281-7352.

Also, there will be a public hearing on October 27,1998, at 9 a.m. in the office of the Racing and Gaming Commis

sion, 717 E. Court, Suite B, Des Moines, Iowa. Persons may present their views at the public hearing either orally or in writing.

These amendments are intended to implement Iowa Code chapters 99D and 99F.


Item 1. Amend rule 491—4.24(99D,99F) as follows:

491—4.24(99D,99F) Presentation of evidence and testimony. In any hearing before the commission or administrative law judge, each party shall have the right to present evidence and testimony of witnesses and to cross-examine any witness who testified on behalf of an adverse party. A person whose testimony has been submitted in written form, if available, shall also be subject to cross-examination by an adverse party. Opportunity shall be afforded each party for redirect examination and recross-examination and to present evidence and testimony as rebuttal to evidence presented by another party, except that unduly repetitious evidence shall be excluded.

Item 2. Amend rule 491—4.25(99D,99F) as follows:

491—4.25(99D,99F) Offer of proof. An offer of proof, before the commission or administrative law judge, may be made through the witness or by statement of counsel. The party objecting may cross-examine the witness without waiving any objection.

ITEM 3. Rescind subrule 10.5(17), paragraph “a,” subparagraph (1), numbered paragraphs “1” and “2,” and insert in lieu thereof the following new numbered paragraphs:

1. Is a licensed owner at the meeting who either has foal paper(s) registered with the racing secretary’s office or has started a horse at the meeting; or

2. Is a licensed authorized agent, authorized to claim for an owner eligible to claim; or

3. Has a valid open claim certificate. The following may request an open claim certificate from the commission:

• Any person not licensed as an owner, or a licensed authorized agent for the account of same; or

• A licensed owner not having foal paper(s) registered with the racing secretary’s office or who has not started a horse at the meeting.

ITEM 4. Rescind subrule 10.5(17), paragraph “g,” subparagraph (2), and insert in lieu thereof the following new subparagraph:

(2) Eligibility price. A claimed horse, declared the official winner of the race from which it was claimed, shall not make its first start back within 30 days in a claiming race (starter allowances and starter handicaps are not considered claiming races) for a claiming price less than that for which it was claimed. After the first start back or 30 days, whichever occurs first, the claimed horse may start in any race for which it is eligible. A horse that is not the official winner in the race in which it is claimed may start in any race. No right, title or interest for any claimed horse can be sold or transferred except in a claiming race for a period of 30 days following the date of claiming. The day claimed does not count, but the following calendar day shall be the first day. The horse shall be required to continue to race at the track where claimed for the balance of the current race meeting.


ARC 8384A

REVENUE AND FINANCE DEPARTMENT[701]

Notice of Intended ActionTWentyinterested persons, a governmental subdivision, an agency or association of 25 or more persons may demand an oral presentation hereon as provided in Iowa Code section I7A.4(l)**b.”


Pursuant to the authority of Iowa Code sections 421.17(19) and 422.68, the Iowa Department of Revenue and Finance hereby gives Notice of Intended Action to amend Chapter 42, “Adjustments to Computed Tax,” and Chapter 52, “Filing Returns, Payment of Tax and Penalty and Interest,” Iowa Administrative Code.

Item 1 amends Chapter 42 by adding new rule 42.13(15E) to implement 1998 Iowa Acts, House File 2538, which creates eligible housing business incentives which, for individual income tax purposes, is a tax credit for new investment directly related to the building or rehabilitating of housing in a designated enterprise zone.

Item 2 amends Chapter 52 by adding new rule 52.15(15E) to implement 1998 Iowa Acts, House File 2538, which creates eligible housing business incentives which, for corporate income tax purposes, is a tax credit for new investment directly related to the building or rehabilitating of housing in a designated enterprise zone.

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

The Department has determined that these proposed amendments may have an impact on small business. The Department has considered the factors listed in Iowa Code section 17A.31(4). The Department will issue a regulatory flexibility analysis as provided in Iowa Code sections 17A.31 to 17A.33 if a written request is filed by delivery or by mailing postmarked no later than October 27,1998, to the Policy Section, Compliance Division, Iowa Department of Revenue and Finance, Hoover State Office Building, P.O. Box 10457, Des Moines, Iowa 50306. The request may be made by the Administrative Rules Review Committee, the Governor, a political subdivision, at least 25 persons who qualify as a small business under Iowa Code sections 17A.31 to 17A.33, or an organization of small businesses representing at least 25 persons which is registered with this agency under Iowa Code sections 17A.31 to 17A.33.

Any interested person may make written suggestions or comments on these proposed amendments on or before November 6,1998. Such written comments should be directed to the Policy Section, Compliance Division, Iowa Department of Revenue and Finance, Hoover State Office Building, P.O. Box 10457, Des Moines, Iowa 50306.

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

Requests for a public hearing must be received by October 30,1998.

These amendments are intended to implement 1998 Iowa Acts, House File 2538.


Item 1. Amend 701—Chapter 42 by adding the following n£jv rule:701—42.13(15E) Eligible housing business tax credit An individual who qualifies as an eligible housing business may receive a tax credit of up to 10 percent of the new investment which is directly related to the building or rehabilitating of homes in an enterprise zone. The tax credit may be taken on the tax return for the tax year in which the home is ready for occupancy.

An eligible housing business is one which meets the criteria in 1998 Iowa Acts, House File 2538.

New investment which is directly related to the building or rehabilitating of homes includes but is not limited to the following costs: land, surveying, architectural services, building permits, inspections, interest on a construction loan, building materials, roofing, plumbing materials, electrical materials, amounts paid to subcontractors for labor and materials provided, concrete, labor, landscaping, appliances normally provided with a new home, heating and cooling equipment, millwork, drywall and drywall materials, nails, bolts, screws, and floor coverings.

New investment does not include the machinery, equipment, hand or power tools necessary to build or rehabilitate homes.

A taxpayer may claim on the taxpayer’s individual in- ' come tax return the pro-rata share of the Iowa eligible hous

ing business tax credit from a partnership, S corporation, limited liability company, estate, or trust. The portion of the credit claimed by the individual shall be in the same ratio as the individual’s pro-rata share of the earnings of the partnership, S corporation, limited liability company, or estate or trust.

Any Iowa eligible housing business tax credit in excess of the individual’s tax liability, less the credits authorized in Iowa Code sections 422.12 and 422.12B, may be carried forward for seven years or until it is used, whichever is the earlier.

If the eligible housing business fails to maintain the requirements of 1998 Iowa Acts, House File 2538, to be an eligible housing business, the taxpayer may be required to repay all or a part of the tax incentives the taxpayer received. Irrespective of the fact that the statute of limitations to assess the taxpayer for repayment of the income tax credit may have expired, the department may proceed to collect the tax incentives forfeited by failure to maintain the requirements of 1998 Iowa Acts, House File 2538. This is because it is a recovery of an incentive, rather than an adjustment to the taxpayer’s tax liability.

This rule is intended to implement 1998 Iowa Acts, House File 2538.

Item 2. Amend 701—Chapter 52 by adding the following new rule:701—52.15(15E) Eligible housing business tax credit A corporation which qualifies as an eligible housing business may receive a tax credit of up to 10 percent of the new investment which is directly related to the building or rehabilitating of homes in an enterprise zone. The tax credit may be taken on the tax return for the tax year in which the home is ready for occupancy.

An eligible housing business is one which meets the criteria in 1998 Iowa Acts, House File 2538.

New investment which is directly related to the building or rehabilitating of homes includes but is not limited to the following costs: land, surveying, architectural services,building permits, inspections, interest on a construction loan,


REVENUE AND FINANCE DEPARTMENT[701](cont’d)

building materials, roofing, plumbing materials, electrical materials, amounts paid to subcontractors for labor and materials provided, concrete, labor, landscaping, appliances normally provided with a new home, heating and cooling equipment, millwork, drywall and drywall materials, nails, bolts, screws, and floor coverings.

New investment does not include the machinery, equipment, hand or power tools necessary to build or rehabilitate homes.

A taxpayer may claim on the taxpayer’s corporation income tax return the pro-rata share of the Iowa eligible housing business tax credit from a partnership, limited liability company, estate, or trust. The portion of the credit claimed by the taxpayer shall be in the same ratio as the taxpayer’s pro-rata share of the earnings of the partnership, limited liability company, or estate or trust.

Any Iowa eligible housing business tax credit in excess of the corporation’s tax liability may be carried forward for seven years or until it is used, whichever is the earlier.

If the eligible housing business fails to maintain the requirements of 1998 Iowa Acts, House File 2538, to be an eligible housing business, the taxpayer may be required to repay all or a part of the tax incentives the business received. Irrespective of the fact that the statute of limitations to assess the taxpayer for repayment of the income tax credit may have expired, the department may proceed to collect the tax incentives forfeited by failure to maintain the requirements of 1998 Iowa Acts, House File 2538. This is because it is a recovery of an incentive, rather than an adjustment to the taxpayer’s tax liability.

This rule is intended to implement 1998 Iowa Acts, House File 2538.

ARC 8361A

TRANSPORTATIONDEPARTMENT[761]

Notice of Intended ActionNotice is also given to the public that the Administrative Rules ReviewCommittee may, on its own motion or on written request by any individualor group, review this proposed action under section 17A.8(6) at a regularor special meeting where the public or interested persons may be beard.

Pursuant to the authority of Iowa Code sections 307.10 and 307.12, the Department of Transportation hereby gives Notice of Intended Action to rescind Chapter 100, “Functional Classification of Highways,” Iowa Administrative Code.

1998 Iowa Acts, Senate File 2257, sections 1 to 17, eliminated state functional classification. Chapter 100, which implemented state functional classification, is therefore being rescinded.

While state functional classification has been eliminated, a federal functional classification system remains. The Act also creates a Farm-to-Market Review Board composed of members appointed by the Iowa County Engineers association. This board will make final administrative determinations regarding farm-to-market road system modifications.

Any person or agency may submit written comments concerning this rescission or may submit a written request to make an oral presentation. The comments or request shall:

1. Include the name, address, and telephone number of the person or agency authoring the comments or request.

2. Reference the number and title of this rule.

3. Indicate the general content of a requested oral presentation.

4. Be addressed to the Department of Transportation, Director’s Staff Division, 800 Lincoln Way, Ames, Iowa 50010; fax (515)239-1639; Internet E-mail address: [email protected].

5. Be received by the Director’s Staff Division no later than October 27, 1998.

A meeting to hear requested oral presentations is scheduled for Thursday, October 29,1998, at 10 a.m. in the Commission Conference Room of the Iowa Department of Transportation, 800 Lincoln Way, Ames.

The meeting will be canceled without further notice if no oral presentation is requested.

This rescission is intended to implement 1998 Iowa Acts, Senate File 2257, sections 1 to 17.

Proposed rule-making action:

Rescind and reserve 761—Chapter 100, “Functional Classification of Highways,” Iowa Administrative Code.

ARC 8391ATREASURER OF STATE[781]

Notice of Intended ActionTwenty-five interested persons, a governmental subdivision, an agency or association of 25 or more persons may demand an oral presentation hereon as provided in Iowa Code section 17A.4(1)M6.”

Notice is also given to the public that the Administrative Rules Review Committee may, on its own motion or on written request by any individual or group, review this proposed action under section I7A*8(6) at a regular or special meeting where the public or interested persons may be heard.

Pursuant to the authority of 1998 Iowa Acts, House File 2119, section 2, the Treasurer of State hereby gives Notice of Intended Action to adopt Chapter 16, “Iowa Educational Savings Plan Trust,” Iowa Administrative Code.

This new chapter establishes guidelines regarding eligibility and procedures for participants and beneficiaries in the new program to be known as “College Savings Iowa.”

Consideration will be given to all written suggestions or comments on the proposed chapter on or before October 30, 1998. Such written comments should be directed to Bret L. Mills, Deputy Treasurer, Room 114, State Capitol Building, Des Moines, Iowa 50319; fax (515)281-7562. Persons who wish to convey their views by telephone should also contact Bret L. Mills, Deputy Treasurer, at (515)281-8261.

A public hearing will be held on Friday, October 30,1998, at 9 a.m. in Room 19 located on the basement floor of the State Capitol Building, Des Moines, Iowa, at which time comments may be submitted either orally or in writing. At the hearing, persons will be asked to give their names and addresses for the record and to confine their remarks to the subject of the rules.

Any persons who plan to attend the public hearing and have special requirements such as hearing or mobility impairments should contact the Office of Treasurer of State and advise of specific needs.

These rules were also Adopted and Filed Emergency and are published herein as ARC 8392A. The content of that submission is incorporated by reference.

These rules are intended to implement 1998 Iowa Acts, House File 2119.


NOTICE—USURY

NOTICE—USURYIn accordance with the provisions of Iowa Code section

535.2, subsection 3, paragraph “a,” the Superintendent of Banking has determined that the maximum lawful rate of interest shall be:

September 1,1997 — September 30,1997 8.25%October 1, 1997 — October 31,1997 8.25%November 1,1997 — November 30,1997 8.25%December 1, 1997 — December 31,1997 8.00%

January 1,1998 — January 31,1998 8.00%February 1,1998 — February 28,1998 7.75%March 1,1998 — March 31,1998 7.50%April 1,1998 — April 30,1998 7.50%May 1,1998 — May 31, 1998 7.75%June 1,1998 — June 30,1998 7.75%July 1,1998 — July 31, 1998 7.75%August 1,1998 — August 31, 1998 7.50%September 1, 1998 — September 30,1998 7.50%October 1,1998 — October 31,1998 7.25%

1AB 10/7/98 FILED EMERGENCY 705

ARC 8360A

AGRICULTURE AND LAND STEWARDSHIP DEPARTMENT^]

Adopted and Filed Emergency

Pursuant to the authority of Iowa Code sections 159.5(11) and 203C.5, the Department of Agriculture and Land Stewardship hereby amends Chapter 90, “State Licensed Warehouses and Warehouse Operators,” Iowa Administrative Code.

The amendment allows warehouse operators to store com in a ground pile to accommodate the 1998 com harvest.

Current storage facilities are inadequate; therefore, emergency storage space will be required. This rule will allow the Department to approve and license emergency storage space under certain conditions.

The Department of Agriculture and Land Stewardship finds that notice and public participation are impracticable because the 1998 harvest is imminent, and there is not adequate time to implement the regular rule-making process to accommodate the record corn and soybean crop harvest. Therefore, this amendment is filed pursuant to Iowa Code section 17A.4(2).

The Department also finds, pursuant to Iowa Code section 17A.5(2)“b”(2), that the normal effective date of the amendment, 35 days after publication, should be waived and the amendment made effective on September 9,1998, upon filing with the Administrative Rules Coordinator. This amendment confers a benefit on the public and the grain industry by providing additional storage space for the 1998 com harvest. This rule shall terminate on March 1,1999.

This amendment is intended to implement Iowa Code chapter 203C.

This amendment became effective September 9,1998.The following amendment is adopted.

Rescind rule 21—90.31(203C) and adopt the following new rule in lieu thereof:21—90.31(203C) Emergency storage space. Emergency storage space (ground pile) may, in the discretion of the department, be approved and licensed on the following basis:

90.31(1) Licenses for emergency storage space shall only be effective for the storage of com from September 9,1998, to January 31,1999.

90.31(2) The warehouse operator shall either purchase the grain stored in the emergency storage space or remove the com from the emergency storage space prior to February 1, 1999. Any corn remaining in such space after this date will not be included in grain inventory measurements made by the department, and such com may not be used to cover storage obligations.

9031(3) Before any com can be placed in the emergency storage space, the department shall receive either an irrevocable letter of credit or a surety bond in the amount of $2 for each bushel to be placed in emergency storage space. The irrevocable letter of credit or surety bond will expire on March 1, 1999. The irrevocable letter of credit or surety bond filed with the department under this subrule shall not be canceled by the issuer on less than 45 days’ notice by certified mail to the department and the licensee. When the department receives notice from an issuer that it has canceled the irrevocable letter of credit or surety bond, the department shall automatically suspend the license if a replacement irrevocable letter of credit or surety bond is not received by the

department within 30 days of the issuance of the notice of cancellation. If a replacement irrevocable letter of credit or surety bond is not filed within another 10 days following the suspension, the grain dealer license shall be automatically revoked.

9031(4) All emergency storage space shall have an asphalt base, concrete base, or a compacted limestone base which meets the following minimum specifications.

a. Base shall be of a depth and compaction to permit trucks or other equipment, used in loading or unloading the pad, to move around over the base without breaking through or unduly scuffing the surface.

b. Depth of limestone top shall be not less than four inches.

c. The slope from the center of the base shall not be less than one-fourth inch per linear foot to edge of base.

d. Adequate drainage away from the base shall be provided to prevent any water from standing or backing up under the grain.

9031(5) All emergency storage space shall be licensed before any com to be stored is placed in it.

9031(6) Emergency licensed storage space may not exceed 30 percent of permanent licensed storage capacity.

9031(7) A separate daily position record shall be maintained on all com placed in the emergency licensed storage space.

9031(8) Com containing more than 15 percent moisture shall not be stored in emergency storage space.

9031(9) Com which does not grade No. 2 or better using the Official Grade Standards shall not be stored in emergency storage space.

90.31(10) The bureau chief or examiner shall issue written notice to the licensed warehouse operator for any emergency storage space which no longer meets these requirements. Failure of the warehouse operator to place the emergency storage space in a suitable condition within a reasonable length of time shall result in the emergency storage space being eliminated from coverage from the warehouse license.

9031(11) This rale shall terminate on March 1,1999.This rule is intended to implement Iowa Code sections

203C.2, 203C.7, 203C.8, 203C.12, 203C.16, and 203C.18.

[Filed Emergency 9/9/98, effective 9/9/98] [Published 10/7/98]

Editor’s NOTE: For replacement pages for LAC, see IAC Supplement 10/7/98.

ARC 8372A

EDUCATION DEPARTMENT[281]Adopted and Filed Emergency

Pursuant to the authority of Iowa Code section 256.7(5), the Iowa State Board of Education hereby adopts Chapter 84, “Financial Incentives for National Board Certification,” Iowa Administrative Code.

This new chapter creates two financial incentive programs for Iowa teachers receiving National Board Certification (NBC)and provides guidelines to administer both programs.

In compliance with Iowa Code section 17A.4(2), the Department of Education finds that notice and public participa-

706 FILED EMERGENCY IAB 10/7/98


tion are impracticable because of the immediate need for rule change to implement provisions of the law.

The Department also finds, pursuant to Iowa Code section 17A.5(2)“b”(l), that the normal effective date of this chapter should be waived and this chapter should be made effective upon filing with the Administrative Rules Coordinator on September 16,1998, as it permits the Department to immediately implement the provisions of the law.

These rules are also published herein under Notice of Intended Action as ARC 8371A to allow for public comment.

These rules are intended to implement 1998 Iowa Acts, Senate File 2366, section 5.

These rules became effective on September 16, 1998.

The following new chapter is adopted.CHAPTER 84

FINANCIAL INCENTIVES FOR NATIONAL BOARD CERTIFICATION

281—84.1(77GA,SF2366) Purpose. National Board Certification (NBC) is available to teachers nationwide and requires candidates to demonstrate their teaching practice as measured against high and rigorous standards. NBC teachers enhance the educational experience of their students and motivate fellow teachers toward excellence in classroom teaching. These rules implement the two financial incentive programs enacted by the 1998 Iowa legislature to increase the number of NBC teachers in Iowa.281—84.2(77GA,SF2366) Definitions. For the purpose of these rules, the following definitions shall apply:

“Department” means the Iowa department of education.“Director” means the director of the Iowa department of

education.“Employed by a school district in Iowa” means a teacher

employed in a nonadministrative position in an Iowa school district pursuant to a contract issued by a board of directors of a school district under Iowa Code section 279.13 and any full-time permanent substitute teacher employed under individual contracts not included under Iowa Code section 279.13 but who is receiving retirement and health benefits as part of the substitute teacher’s contract.

“National Board Certification (NBC)” is a nationwide certification program administered by the National Board for Professional Teaching Standards. The certification program requires candidates to participate in a rigorous two-part assessment consisting of portfolio entries and assessment center exercises.

“National Board for Professional Teaching Standards (NBPTS)” is a private nonprofit organization whose goal is to develop professional standards for early childhood, elementary and secondary school teaching. NBPTS administers the NBC program.

“School district” means a public school district.“Teacher” means an Iowa-licensed teacher as defined in

Iowa Code section 272.1.

281—843(77GA,SF2366) Registration fee reimbursement program. If sufficient funds are appropriated by the Iowa legislature, the department shall administer a registration fee reimbursement program.

84.3(1) Eligibility. Teachers seeking reimbursement shall apply to the department within one year of registration with NBPTS. Teachers eligible for the registration fee reimbursement program shall meet all of the following qualifications:

a. The individual has all qualifications required by NBPTS for application for certification.

b. The individual is a teacher.c. The individual is employed by a school district in

Iowa.d. The individual completes the department’s applica

tion process, which includes submitting verification of NBC registration.

e. The individual has not received reimbursement from this program at any previous time.

84.3(2) Selection of teachers for registration fee reimbursement. If funds are available, all teachers who apply to the department shall receive registration fee reimbursement. If, however, in any fiscal year the number of eligible teachers that apply for the reimbursement exceeds the funds available, the department shall conduct a lottery selection process in proportion to the number of teachers in each area education agency.

843(3) Reimbursement. Teachers determined eligible shall receive reimbursement in the following manner:

a. Initial registration fee reimbursement. Each eligible teacher shall receive an initial reimbursement of one-half of the reimbursement fee charged by NBPTS upon submission to the department of the NBC registration confirmation form provided to each teacher by NBPTS.

b. Final registration fee reimbursement. The final registration fee reimbursement shall be awarded when the eligible teacher notifies the department of the teacher’s certification achievement and submits verification of certification. If an eligible teacher fails to receive certification, the teacher can receive the remaining reimbursement if the teacher achieves certification within three years of the initial NBC score notification.

843(4) Withdrawal from NBC process. A teacher who has received the initial registration fee reimbursement form from the department and withdraws from the NBC process shall reimburse the department the amount received from the department within 30 days of receiving any fee reimbursement form from NBPTS if the reimbursement from NBPTS is equal to or greater than the amount received from the department. If the reimbursement amount from NBPTS is less than the amount the teacher received from the department, the teacher shall reimburse the department any amount received from NBPTS.

281—84.4(77GA,SF2366) NBC annual award. If sufficient funds are appropriated by the legislature, each eligible NBC teacher can qualify for an NBC annual award consisting of a $10,000 award per year for a maximum, nonrenewable period of five years of certification.

84.4(1) Eligibility. Individuals eligible for the NBC annual award shall meet all of the following qualifications:

a. The individual is an NBC teacher.b. The individual is a teacher.c. The individual is employed by a school district in

Iowa.d. The individual completes the department’s applica

tion process, which includes submitting verification of certification.

e. The individual has not received an NBC award for more than five years.

f. The individual is applying for the award within one year of being eligible for the award.

84.4(2) Application. An NBC teacher shall submit an application verifying eligibility for an NBC award to the department by January 1 of each fiscal year the NBC teacher is

LAB 10/7/98 FILED EMERGENCY 707


eligible for the award. NBC awards shall be issued to eligible NBC teachers on or about January 15 of each fiscal year.

84.4(3) Taxes. The NBC award is not considered salary for purposes of Iowa Code chapter 97B. The eligible NBC teacher will be responsible to pay the appropriate state and federal taxes. The department will notify state and federal taxing authorities of the award and the NBC teacher will be issued an IRS Form 1099.

281—84.5(77GA,SF2366) Appeal of denial of a registration fee reimbursement award or an NBC annual award. Any applicant may appeal the denial of a registration fee reimbursement award or an NBC annual award to the director of the department. Appeals must be in writing and received within ten working days of the date of the notice of denial and must be based on a contention that the process was conducted outside statutory authority or violated state or federal law, regulation or rule. The hearing and appeal procedures found in 281—Chapter 6 that govern director’s decisions shall be applicable to any appeal of denial.

In the notice of appeal, the applicant shall give a short and plain statement of the reasons for the appeal.

The director shall issue a decision within a reasonable time, not to exceed 30 days from the date of the hearing.

These rules are intended to implement 1998 low? Acts, Senate File 2366, section 5.


EDITOR’S NOTE: For replacement pages for LAC, see IAC Supplement 10/7/98.

ARC 8370A

EDUCATION DEPARTMENT[281]Adopted and Filed Emergency

Pursuant to the authority of Iowa Code subsection 256.7(5), the Iowa State Board of Education hereby adopts a new Chapter 96, “Local Option Sales and Services Tax for School Infrastructure,” Iowa Administrative Code.

This new chapter defines the enrollment count that will be reported by school districts located in a county that adopts a local sales and services tax for school infrastructure.

In compliance with Iowa Code section 17A.4(2), the Department finds that notice and public participation are impracticable and contrary to public interest. These rules will impact the distribution of local option sales and services tax revenues. Notice of Intended Action was published, however, on September 9, 1998, as ARC 8284A to solicit public comment on these rules.

The Department finds, pursuant to Iowa Code section 17A.5(2)“b”(2), that the normal effective date of the rules should be waived and the rules made effective upon filing with the Administrative Rules Coordinator on September 16, 1998, because the rules confer a benefit on the public.

This chapter became effective September 16,1998.This chapter is intended to implement 1998 Iowa Acts,

House File 2282.The following chapter is adopted.

Adopt the following new chapter:

CHAPTER 96LOCAL OPTION SALES AND SERVICES TAX

FOR SCHOOL INFRASTRUCTURE

281—96.1(77GA,HF2282) Definitions. For purposes of these rules, the following definitions shall apply:

“Actual enrollment” means the number of students each school district certifies to the department by October 1 of each year in accordance with Iowa Code section 257.6, subsection 1.

“Base year” means the school year ending during the calendar year in which the budget is certified.

“Combined actual enrollment” means the sum of the students in each school district located in whole or in part in a county imposing a sales tax who are residents of that county as determined by rule 96.2(77GA,HF2282).

“Department” means the state department of education.“Nonresident student” means a student enrolled in a

school district who does not meet the requirements of a resident as defined in Iowa Code section 282.1.

“Resident student” means a student enrolled in a school district who meets the requirements of a resident as defined in Iowa Code section 282.1.

“Sales tax” means a local option sales and services tax for school infrastructure imposed in accordance with 1998 Iowa Acts, House File 2282.

“School district” means a public school district in Iowa accredited by the state department of education.

281—96.2(77GA?HF2282) Reports to the department Each school district located in whole or in part in a county where a sales tax has been imposed shall report the following to the department on forms and in the manner prescribed by the department.

96.2(1) First year of taxation. Within ten days after an election in a county where a sales tax has been adopted, each school district within the county shall report to the department the actual enrollment of the school district in the year prior to the base year. The department shall forward the actual enrollment to the department of management within 15 days of receipt.

96.2(2) Second and subsequent years of taxation. In the second and subsequent years of taxation, each school district shall, by October 1, annually report the school district’s actual enrollment by the student’s county of residency according to the following:

a. County of residency. The county of residency for each of the following students shall be the county of residency of the student’s parent or guardian:

(1) Resident students who were enrolled in the school district in grades kindergarten through 12 and including prekindergarten students enrolled in special education programs;

(2) Full-time equivalent resident students of high school age for whom the school district pays tuition to attend an Iowa community college;

(3) Shared-time and part-time students of school age enrolled in the school district;

(4) Eleventh and twelfth grade nonresident students who were residents of the school district during the preceding school year and are enrolled in the school district until the students graduate;

(5) Resident students receiving competent private instruction from a licensed practitioner provided through a public school district pursuant to Iowa Code chapter 299A; and

708 FILED EMERGENCY LAB 10/7/98


(6) Resident students receiving competent private instruction under dual enrollment pursuant to Iowa Code chapter 299A.

b. Emancipated minor. The county of residency for an emancipated minor attending the school district shall be the county in which the emancipated minor is living.

c. County of residency unknown. If a school district cannot determine an enrolled student’s county of residency, the county of residency shall be the county in which the school district certifies its budget.281—96.3(77GA,HF2282) Combined actual enrollment By March 1, annually, the department shall forward to the department of management the actual enrollment and the actual enrollment by the student’s county of residency for each school district located in whole or in part in a county where a sales tax has been imposed and the combined actual enrollment for that county.




ARC 8396A

NATURAL RESOURCE COMMISSION[571]

Adopted and Filed Emergency After Notice

Pursuant to the authority of Iowa Code subsection 455A.5(6), the Natural Resource Commission hereby amends Chapter 53, “Controlled Hunting Areas,” Iowa Administrative Code.

These rules give the regulations for controlled waterfowl hunting at certain public wildlife areas.

Notice of Intended Action was published in the July 1, 1998, Iowa Administrative Bulletin as ARC 8131A. A public hearing was held July 22, 1998. There have been no changes to the Notice of Intended Action.

The Department finds, pursuant to Iowa Code section 17A.5(2)“b”(2), that these amendments confer a benefit on a segment of the public by becoming effective immediately and that the usual effective date of these amendments would unnecessarily restrict the public by delaying the opportunity for hunting waterfowl on Forney Lake. Therefore, these amendments shall become effective upon filing with the Administrative Rules Coordinator on September 18,1998.

These amendments are intended to implement Iowa Code sections 481A.5, 481A.6, 481A.7 and 481A.48.

The following amendments are adopted.

Item 1. Amend subrule 53.2(1) by rescinding paragraphs “a” and “b.”


a. Blind reservations will be accepted by the department mail at the Riverton Unit Headquarters, Riverton, Iowa 51650, beginning on the second Monday of September each year. Reservations must be made for Fomoy Lake at Department of Natural Resources, Forney Lake, Thurmaivfeway and -for the Riverton Area at Department of Natural Re

sources, Riverton Area, Riverton, Iowa. Reservations will be issued on a first-come, first-served basis.

ITEM 3. Amend subrule 53.2(4) as follows:53.2(4) Permits. Daily permits, designating the blind as

signment, will be issued subject--to-the following: only to bona fide hunters, except nonhunters may be issued permits by paying the required fees when extra space is available. Nonhunters accompanying a permit holder will not be charged the registration fee.

a=—All hunters shall-exchange their hunting licenses atthe reservation station for a permit. Hunters must return tothe reservation station immediately upon leaving the blindand must present all bagged game for inspection before leav -ing the area. Licenses will be returned when hunters properly check- out of the area.

b:—Permits will be issued only to bona fide-hunters, except nonhunters may be issued permits by paying the required fees when extra space is available. Nonhunters ao companying a permit holder will not be charged the registra ■tion fee.

ITEM 4. Amend subrule 53.2(5) as follows:53.2(5) Ammunition. Nonhunters may not possess shells

or firearms on the areas. Hunters shall use or possess only nontoxic shotshells with steel shot not larger than size BB.

Item 5. Rescind subrule 53.2(6).

[Filed Emergency After Notice 9/18/98, effective 9/18/98] [Published 10/7/98]

EDITOR’S NOTE: For replacement pages for IAC, see IAC Supplement 10/7/98.

ARC 8392A

TREASURER OF STATE[781]Adopted and Filed Emergency

Pursuant to the authority of 1998 Iowa Acts, House File 2119, section 2, the Treasurer of State hereby adopts Chapter 16, “Iowa Educational Savings Plan Trust,” Iowa Administrative Code.

This new chapter establishes guidelines regarding eligibility and procedures for participants and beneficiaries in the new program to be known as College Savings Iowa.

In compliance with Iowa Code section 17A.4(2), the Treasurer of State finds that notice and public participation are impracticable because of the immediate need for rules to implement provisions of this law.

The Treasurer also finds, pursuant to Iowa Code section 17A.5(2)“b”(2), that the normal effective date of the rules should be waived and these rules should be made effective upon filing with the Administrative Rules Coordinator on September 18,1998, as they confer a benefit upon persons seeking to participate in the program.

The Treasurer of State adopted these rules on September 18,1998.

These rules are also published herein under Notice of Intended Action as ARC 8391A to allow for public comment. This emergency filing permits the Treasurer to implement the new provisions of this law.


These rules became effective September 18,1998.

LAB 10/7/98 FILED EMERGENCY 709

TREASURER OF STATE[781](cont’d)

The following mew chapter is adopted.

CHAPTER 16IOWA EDUCATIONAL SAVINGS PLAN TRUST

781—16.1(77GA,HF2119) Purpose. The purpose of these rules is to provide for the administration and operation of the Iowa educational savings plan trust.

781—16.2(77GA,HF2U9) Definitions. In addition to the terms defined in 1998 Iowa Acts, House File 2119, section 1, the following terms apply to this chapter:

“Academic period” means one semester or one quarter or such other equivalent period as may be defined by the qualified institution of higher education.

“Account” means the account in the program fund established and maintained under the trust for a beneficiary.

“Account balance” means the fair market value of an account as of an accounting date selected by the program administrator, which shall be not more than 60 days prior to the date on which the event occurs which gives rise to the determination of account balance.

“College savings Iowa” is the name and logo registered under Iowa law to represent the Iowa educational savings plan trust. It is synonymous with Iowa educational savings plan trust.

“Payments” means the money paid by the participant to the trust under the participation agreement.

“Penalty fee” means the fee charged by the trust on cancellation of a participation agreement.

“Program administrator” means the treasurer of state.“Qualified higher education costs” means tuition, fees,

and the costs of books, supplies and equipment required for the enrollment or attendance of the beneficiary at a qualified institution of higher education. Room and board shall be treated as qualified higher education costs for a beneficiary, subject to maximum annual dollar amounts determined by the program administrator, if they are incurred during an academic period during which the beneficiary is enrolled or accepted for enrollment in a degree, certificate or other program that leads to a recognized educational credential (such as a bachelor’s degree or associate’s degree) awarded by a qualified institution of higher education. In addition, the beneficiary must be enrolled at least half time.

“Qualified institution of higher education” means an institution described in Section 481 of the federal Higher Education Act of 1965, which is eligible to participate in the United States Department of Education’s student aid programs. State universities in Iowa and other states qualify, as do community colleges and private accredited four-year and two- year colleges. Some vocational and technical schools qualify as well.

781—163(77GA,HF2119) Forms and materials. The following material shall be used to administer the Iowa educational savings plan trust.

“College savings Iowa participation agreement” means the form that the participant submits to the program administrator of the trust to identify the participant, beneficiary, and other information as may be requested by the program administrator. It shall be signed and dated by the participant to verify that the participant agrees to the terms and conditions of the program.

“Prospectus” means the document provided by the program administrator to describe the investments selected by the program administrator and to explain the nature of risk inherent in the investments.

781—16.4(77GA,HF2119) Notices or requests. The following forms shall be used to administer the Iowa educational savings plan trust.

“Notice to suspend benefits” means the form that a participant submits to the program administrator to suspend benefits under a participation agreement.

“Notice to terminate agreement” means the form that a participant submits to the program administrator to terminate a participation agreement.

“Notice to transfer ownership of account” means the form that a participant submits to the program administrator to transfer ownership rights of a college savings Iowa account to another person pursuant to 1998 Iowa Acts, House File 2119, section 6, subsection 6.

“Notice to use benefits” means the form which a participant submits to the program administrator to notify the administrator of the date benefits are to begin and level of benefits to be paid.

“Request to substitute beneficiary” means the form which a participant submits to the program administrator of the trust to request the substitution of a beneficiary.

781—16.5(77GA,HF2H9) Participant eligibility. 1998 Iowa Acts, House File 2119, section 3, provides that the trust may enter into participation agreements with participants t" effectuate the purposes, objectives and provisions of the trust. This rule establishes the eligibility criteria for a participant.

16.5(1) A participant must be at least 18 years old and a resident of the United States.

16.5(2) A participant shall execute a participation agreement with the program administrator that specifies the terms and conditions under which the participant shall participate in the trust.

16.5(3) A participant shall, on signing a participation agreement, provide the program administrator with the participant’s social security number.781—16.6(77GA,HF2119) Beneficiary eligibility. 1998 Iowa Acts, House File 2119, section 3, subsection 2, provides that a beneficiary of a participation agreement may be designated from date of birth up to, but not including, the beneficiary’s seventeenth birthday. This rule establishes the eligibility criteria for a beneficiary.

16.6(1) A beneficiary may be a resident of any state, who, on the day the participation agreement is executed, is under 17 years of age.

16.6(2) A participant shall, on signing a participation agreement, provide the program administrator with proof of the beneficiary’s age, in the form of a birth certificate or such other form as the program administrator may require.

16.6(3) A participant shall, on signing a participation agreement, provide the program administrator a valid social security number for the beneficiary.

781—16.7(77GA,HF2119) Payments and payment schedules. 1998 Iowa Acts, House File 2119, section 1, states that participation agreements shall require participants to agree to invest a specific amount of money in the trust for a specific period of time for the benefit of a specific beneficiary, not to exceed $2000 per beneficiary per year, adjusted annually to reflect increases in the consumer price index. This rule provides for implementation of this provision.

16.7(1) A participant must agree to pay a minimum of $25 per month up to a maximum of $2000 annually per beneficiary per year. The program administrator will provide each participant a monthly statement. Participants are allowed to pay installments monthly or at other intervals during the calendar year provided that each installment payment

710 FILED EMERGENCY LAB 10/7/98


is made with the payment coupon included with the account statement provided to the participant and further, provided that each installment is at least $25. Installment payments of less than $25 may be returned to the participant. Payments received from a person who has not entered into a participation agreement shall be returned or held until a participation agreement is submitted and approved.

16.7(2) The program administrator shall actuarially determine an account balance limit applicable to all accounts of beneficiaries with the same expected year of enrollment. No additional payments may be made on behalf of a beneficiary if the account balances of all accounts held for the beneficiary exceed the applicable account balance limit.

16.7(3) Beginning in the fall of 1999 and each fall thereafter, the program administrator shall determine the maximum amount that a participant may contribute on behalf of a beneficiary for the succeeding calendar year by applying the applicable inflation adjustment. The adjusted annual maximum shall be communicated to participants in college savings Iowa and the public in any reasonable manner determined by the program administrator.

781—16.8(77GA,HF2119) Substitution or change of bemeffnciary. 1998 Iowa Acts, House File 2119, section 3, subsection 5, paragraph “a,” provides that beneficiaries may be changed subject to the rules and regulations of the treasurer of state. This rule establishes the criteria for substituting one beneficiary for another.

16.8(1) A participant may substitute a beneficiary at any time prior to the date of the beneficiary’s enrollment in an institution of higher education. At the time of the substitution, the substitute beneficiary must be an eligible beneficiary pursuant to rule 781—16.6(77GA,HF2119) and be a member of the family of the beneficiary being substituted as defined in subrule 16.8(3).

16.8(2) In the event a beneficiary admitted to an institution of higher education decides to permanently discontinue the beneficiary’s higher education and an account balance remains in college savings Iowa, the participant must, in order to avoid the imposition of the penalty and reporting to tax authorities, complete a new participation agreement for another eligible beneficiary who is a member of the prior beneficiary’s family and direct that the account balance of the first beneficiary’s account be “rolled over” to the new beneficiary’s account.

16.8(3) For purposes of determining who is a member of the family, a legally adopted child of an individual shall be treated as the child of such individual by blood. The terms “brother” and “sister” include a brother or sister by half blood. “Member of the family” means an individual who is related to the designated beneficiary described as follows:

a. Son or daughter, or a descendant of either;b. Stepson or stepdaughter;c. A brother, sister, stepbrother, or stepsister;d. The father or mother, or an ancestor of either;e. A stepfather or stepmother;f. A son or daughter of a brother or sister;g. A brother or sister of the father or mother;h. A son-in-law, daughter-in-law, father-in-law, mother-

in-law, brother-in-law, or sister-in-law; ori. The spouse of the designated beneficiary or the

spouse of any individual described in paragraphs “a” through “h” of this subrule.

16.8(4) A participant may request that a beneficiary be substituted by submitting to the program administrator the form entitled Request to Substitute Beneficiary. The request shall accompany evidence, as specified by the program ad

ministrator, that the proposed substitute beneficiary is a member of the family of the beneficiary.

781—16.9(77GA,HF2119) Change of participant or account owner. The participant is the initial owner of the account established under college savings Iowa and, as such, has the exclusive right to cancel the participation agreement or change the designated beneficiary.

16.9(1) A participant may transfer the participant’s current ownership rights in an account to another eligible individual or to a minor beneficiary. To do so, the participant shall file the form entitled Notice to Transfer Ownership of Account with the program administrator.

16.9(2) A participant may also designate on the participation agreement a survivor that shall succeed to the ownership of the account in the event of the death of the participant. A participant may change the designated survivor by filing a new Notice to Transfer Ownership of Account with the program administrator.

16.9(3) In the event a participant or other account owner dies and has not designated a survivor to the account, the following criteria will be used.

a. The designated beneficiary, if 18 years of age or older at the time of the participant’s death, shall become the owner of the college savings Iowa account as well as remaining the beneficiary.

b. If the designated beneficiary is under the age of 18, account ownership will be transferred to the beneficiary’s surviving parent or parents or other legal guardian.

781—16.10(77GA,HF2119) Payment of benefits and qualified distributions. 1998 Iowa Acts, House File 2119, section 3, subsection 3, provides that payment of benefits provided under participation agreements must begin not later than the first full academic quarter or semester at an institution of higher education following the beneficiary’s twenty- second birthday or high school graduation, whichever is later. This rule establishes the procedures for the payment of benefits.

16.10(1) The participant must initiate distributions for qualified costs. The participant must file the form entitled Notice to Use Benefits with the program administrator. The form is available from the program administrator and should be filed at least two months before the beneficiary’s first day of class in the institution. The form will allow the participant to select the maximum to pay each period of enrollment. This amount will be used until the benefits are exhausted or until otherwise directed by the participant, whichever occurs first.

16.10(2) Upon submission of the Notice to Use Benefits, the participant shall specify the level of benefits to be paid. The participant may elect distribution of an allotment of the account balance, calculated by dividing the account balance by the number of academic periods in the beneficiary’s program of study, or a higher amount, which shall not exceed the beneficiary’s qualified higher education costs for each academic period. The participant may adjust the level of benefits paid in any academic period by notifying the program administrator in writing.

16.10(3) Benefits will be paid in one of two ways once the Notice to Use Benefits is filed with the program administrator.

a. Benefits will be paid directly to the institution of higher education when an invoice from the institution is provided to the program administrator. Benefits will then be paid in accordance with the Notice to Use Benefits filed by

LAB 10/7/98 FILED EhlERGENCY 711


the participant to the extent the amount invoiced by the institution is for qualified expenses.

b. Upon receipt of complete and legible documentation regarding the purpose, date, and amount of the payment, the program administrator will reimburse the participant or beneficiary. Again, the amount of benefits that will be paid must be in accordance with the Notice to Use Benefits and to the extent the reimbursement is for qualified expenses. Failure on the part of the participant or beneficiary to provide documentation requested by the program administrator to verify the purpose, date, and amount of payment will result in the denial of the request for reimbursement.

16.10(4) Each distribution of benefits will be comprised partly of contributions and partly of earnings, based upon the same proportion that contributions and earnings make up the participant’s account.

16.10(5) If, following the submission of a Notice to Use Benefits, the beneficiary interrupts the beneficiary’s attendance at an institution of higher education, the participant must submit a form entitled Notice to Suspend Benefits.

a. Participants may suspend the distribution of trust benefits until the beneficiary’s twenty-seventh birthday. If the participant does not submit a Notice to Use Benefits on or before the beneficiary’s twenty-seventh birthday, the program administrator shall refund money held by the trust according to program rules.

b. Distribution of benefits shall begin after receipt by the program administrator of the form entitled Notice to Use Benefits and shall continue throughout the beneficiary’s period of enrollment at an institution of higher education or until the account balance has been exhausted, whichever occurs first.

16.10(6) If the beneficiary graduates from an institution of higher education and a balance remains in the beneficiary’s account, the program administrator shall refund to the participant the balance of the payments and the earnings from the investments in the program fund remaining in the account.

The program administrator shall make the payment from the program fund within 60 days from the date of the beneficiary’s graduation. The refund shall be made unless the beneficiary plans to continue at a higher education institution and the participant submits a completed Notice to Suspend Benefits or Notice to Use Benefits.

16.10(7) Funds that are refunded to a participant pursuant to this rule shall be reported to the appropriate taxing authorities for the tax year in which such refund is made.

16.10(8) An amount equal to the applicable penalty on the distribution shall be retained by the program administrator in the event the distribution is used for purposes other than qualified higher educational costs.

16.10(9) For federal income tax purposes, that portion of a qualifying distribution that constitutes earnings must be included in the beneficiary’s taxable income in the year in which it is distributed.

781—16.11(77GA,1H[F2119) Nonqualified disttributioins and penalties. Any account balance not used for the qualified higher education costs of a designated beneficiary or eligible substitute beneficiary, and not refunded to the account owner for reasons related to the death or disability of the beneficiary, or due to the beneficiary’s receiving a scholarship, shall be refunded to the participant.

The participant shall receive the account balance less a penalty fee equal to 10 percent of the net earnings credited to the account. Also, any undistributed endowment fund earnings credited or earmarked to the account revert back to the

endowment fund. For federal income tax purposes, that portion of a nonqualified distribution that constitutes earnings must be included in the participant’s taxable income in the year in which it is distributed.

A participant may, however, transfer any remaining balance in one account to an existing or new account for another designated beneficiary by completing a new participation agreement with the program administrator. If the new beneficiary is a member of the family of the former beneficiary, no penalty fee will be imposed.781—16.12(77GA,HF2119) Earmimgs inn endowment fiund. 1998 Iowa Acts, House File 2119, section 4, subsection 2, provides that each beneficiary for whom funds are saved under a participation agreement shall receive an interest in a portion of the investment income of the endowment fund of the trust. This rule provides for implementation of this provision.

16.12(1) Earnings from the endowment fund that are not transferred to the administrative fund shall be earmarked for use by the beneficiary of each participation agreement.

16.12(2) Annually, a pro-rata amount of endowment fund earnings shall be earmarked to each participant account. The pro-rata amount shall be based on the average daily balance of the account held on behalf of a beneficiary in the program fund compared to the average daily balance of the entire program fund during the year.

16.12(3) The earmarking of the endowment fund earnings for use by a beneficiary shall not constitute ownership of such interest on the part of any beneficiary or participant. Upon cancellation of a participation agreement for any reason, endowment fund earnings earmarked to an account shall revert back to the endowment fund.

16.12(4) Provided that donations have been made to the endowment fund, the annual statement provided to each participant shall disclose both the annual and cumulative amounts of endowment interest that have been earmarked for use by a beneficiary under a participation agreement.

16.12(5) When payment of benefits for the beneficiary begins under a participation agreement, earnings from the endowment fund that have been earmarked for use by the beneficiary shall be made available for higher education costs under the following procedure.

Endowment fund earnings, if any, shall be paid in the following manner. Once the Notice to Use Benefits is submitted to the program administrator, the total amount earmarked for the account, adjusted annually to allow for contributions when the beneficiary is in attendance, shall be distributed in equal installments over the remaining estimated number of enrollment periods that are customarily required by the institution of higher education to graduate in the beneficiary’s course of study.781—16.13(77GA,HF2119) CamceMatnomaimdl paymeimttoiF reffimds. 1998 Iowa Acts, House File 2119, section 5, provides that any participant may cancel a participation agreement at will. This rule establishes the criteria for canceling a participation agreement and providing a refund.

16.13(1) A participant may at any time cancel a participation agreement, without cause, by submitting to the program administrator the form entitled Notice to Terminate Agreement.

16.13(2) If the participation agreement is canceled, the participant is entitled to a refund. The refund shall be mailed or otherwise sent to the participant within 60 days after receipt by the program administrator of the form entitled No-

712 FILED EMERGENCY IAB 10/7/98


tice to Terminate Agreement. The amount of the refund shall be determined according to the following criteria.

a. If the participation agreement is in effect for less than two years, the participant shall receive the lesser of the account balance, or the aggregate payments made to the account less any distributions made from the account. Earnings, if any, credited to the account shall be forfeited to the administrative fund. Endowment fund interest, if any, earmarked to the account shall revert back to the endowment fund.

b. If the participation agreement is in effect for two or more years, the participant shall receive the account balance less a penalty fee equal to 10 percent of the net earnings credited to the account and less any endowment fund earnings earmarked to the account. The penalty fee shall be placed in the administrative fund. Any endowment fund earnings earmarked to the account shall revert back to the endowment fund.

16.13(3) If a participation agreement is canceled as a result of the death of the beneficiary or disability of the beneficiary, the participant shall receive the account balance with no imposition of the penalty fee.

a. Before a cancellation and refund due to the death of a beneficiary is made, a participant must provide the trust a copy of the beneficiary’s death certificate or other proof of death acceptable under state law.

b. Before a cancellation and refund due to the disability of a beneficiary is made, a participant must provide to the

program administrator written certification from a qualified and licensed physician that the beneficiary is disabled and, as a result of such disability, cannot reasonably attend school.

16.13(4) To the extent that a participation agreement is canceled as a result of the beneficiary’s being awarded a scholarship, as defined in Section 529 of the Internal Revenue Code, the participant shall receive the account balance, up to the amount of the scholarship, with no imposition of the penalty fee. To the extent that the refund exceeds the amount of the scholarship, the penalty fee shall be imposed on such excess.

Before a refund is made due to the beneficiary’s receiving a scholarship that can be used at a qualified institution of higher education, a participant must provide the program administrator written documentation that verifies and describes the scholarship award.

16.13(5) Funds that are refunded to a participant pursuant to this rule shall be reported to the appropriate taxing authorities for the tax year in which such refund is made.



EDITOR’S NOTE: For replacement pages for IAC, see LAC Supplement 10/7/98.

LAB 10/7/98 FILED 713

ARC 8387A


Adopted and Filed

Pursuant to the authority of Iowa Code sections 15.104 and 15.106, the Iowa Department of Economic Development amends Chapter 25, “Housing Fund,” Iowa Administrative Code.

Notice of Intended Action was published in the Iowa Administrative Bulletin as ARC 8222A on August 12, 1998. The IDED Board adopted the amendments on September 17, 1998.

The amendments (1) provide for an annual competition for HOME projects jointly funded with affordable housing tax credits; (2) provide for the potential use of a limited amount of Community Development Block Grant (CDBG) funds for homeless shelter rehabilitation activities; and (3) allow a limit to be set on the amount of funds expended for any single activity type.

A public hearing was held on September 1, 1998. No comments concerning the proposed amendments were received from the public. The adopted amendments are identical to those published under Notice of Intended Action.

These amendments are intended to implement Iowa Code section 15.108(l)“a.”

These amendments will become effective on November 11,1998.


Item 1. Amend rule 261—25.2(15) by adding the following new definitions in alphabetical order:

“AHTC” means affordable housing tax credits and federal tax incentives created through the Tax Reform Act of 1986 and allocated through the Iowa finance authority for affordable rental housing development.

“IFA” means the Iowa finance authority.

Item 2. Amend subrule 25.5(4) as follows:25.5(4) Housing fund applications which the staff con

tacts determine are ready for review by the last working day of a month shall be reviewed and responded to in the following month to the extent funds are available. Once funds have been expended, IDED reserves the right to hold applications for review until after the next allocation of funds from HUD.

Item 3. Amend rule 261—25.5(15) by adding the following new subrule:

25.5(5) Applications for rental housing activities proposed to be funded jointly through the housing fund and the affordable housing tax credit program shall be reviewed and award decisions made through an annual competition for funds reserved for this purpose under subrule 25.8(3). Applicants shall be required to submit a housing fund/affordable housing tax credit application supplement to IDED by the deadline established by IFA for the submission of AHTC applications. IDED shall distribute information about the application procedure to potential applicants with IFA’s annual AHTC program announcement.


261—25.8(15) Allocation of funds.25.8(1) IDED may retain a portion of the amount pro

vided for at 261—subrule 23.6(1) of the state’s annual CDBG allocation from HUD and up to 10 percent of the

state’s annual HOME allocation from HUD for administrative costs associated with program implementation and operation.

25.8(2) Not less than 15 percent of the state’s annual HOME allocation shall be reserved for eligible housing activities proposed by CHDOs.

25.8(3) Up to 75 percent of the state’s annual HOME allocation shall be reserved for rental housing activities jointly funded with HOME and affordable housing tax credits.

25.8(4) IDED reserves the right to allocate up to 5 percent of CDBG funds allocated to the housing fund for the emergency repair of homeless shelters. Recipients funded for this purpose shall not be required to follow the application procedure set forth in rule 261—25.5(15).

25.8(3X5) IDED will determine the appropriate source of funding, either CDBG or HOME, for each housing fund award based on factors including the availability of funds, the nature of the housing activity and the recipient type.

25.8(6) IDED reserves the right to limit the amount of funds that shall be awarded for any single activity type.

25.8(4)(7) Awards shall be limited to no more than $700,000.

25.8(5)(<?) The maximum per unit housing fund subsidy is $24,999.

25.8(6X9) Recipients shall justify administrative costs in the housing fund application. IDED reserves the right to negotiate the amount of funds provided for administration, but in no case shall the amount exceed 15 percent of a total housing fund award.

25.8(7X20) IDED reserves the right to negotiate the amount and terms of a housing fund award.

25.8(8)(7/) IDED reserves the right to make award decisions such that the state maintains the required level of local match to HOME funds.

25.8(9X72) IDED reserves the right to allocate a portion of funds to comprehensive areawide housing programs. Potential recipients shall be identified through a request for qualifications of entities interested in and capable of operating an areawide program. Areawide program proposals shall be evaluated on and awards negotiated on the targeted number of beneficiaries to be assisted across income levels, household types and unmet housing needs, rather than on specific activities.

[Filed 9/17/98, effective 11/11/98][Published 10/7/98]

EDITOR’S NOTE: For replacement pages for LAC, see LAC Supplement 10/7/98.

ARC 8386A


Adopted and Filed

Pursuant to the authority of Iowa Code sections 15.104 and 15.106, the Iowa Department of Economic Development hereby adopts amendments to Chapter 59, “Enterprise Zones,” Iowa Administrative Code.

Notice of Intended Action was published in the Iowa Administrative Bulletin as ARC 8223A on August 12, 1998. The IDED Board adopted these amendments on September 17,1998.

714 FILED LAB 10/7/98

ECONOMIC DEVELOPMENT, IOWA DEPARTMENT OF[261](cont’d)

Numerous statutory revisions affecting the Enterprise Zone program were enacted during the 1998 legislative session. The key changes include modifications of the composition of city enterprise zone commissions; the adoption of alternative criteria by which businesses located within 35 miles of an enterprise zone may qualify for benefits; and inclusion of new provisions that permit eligible housing businesses (housing developers or housing contractors) to qualify for Enterprise Zone program incentives. The amendments incorporate these statutory changes.

A public hearing to receive comments about the proposed amendments was held on September 1,1998. No comments were received at the public hearing. However, at the September Administrative Rules Review Committee meeting, concern was expressed by a Committee member about the Department’s interpretation of a statutory provision in the enterprise zone legislation. The statute prohibits businesses from closing or reducing operations in one area of the state and relocating substantially the same operation into an enterprise zone. The administrative rules incorporate this restriction. At issue is the interpretation of the phrase “one area of the state.” The Committee member’s argument is that this encompasses closures or relocations within a city, e.g., a business may not move from one area of a city, relocate into an enterprise zone within the same city and receive benefits associated with the zone.

The Department has interpreted the statute to prohibit a business from moving from one city to another city’s enterprise zone for the purpose of accessing enterprise zone benefits. The closure or relocation of jobs from one city to another results in the loss of jobs in one city; there is no net gain for the state if jobs and investment are merely shifted from one city to another. Expansion by a business within the same city to a targeted, distressed area where new jobs will be created and new capital investment made is consistent with the program’s objectives. Provided the local enterprise zone commission endorses the project, the Department supports projects that further the job creation and investment goals of the enterprise zone program. This interpretation of the phrase “area of the state” is consistent with precedent in other financial assistance programs administered by the agency and, the Department believes, with legislative intent. At the time the legislation was under consideration, the Department explained its interpretation of this phrase which is also used in other financial assistance programs (e.g., CEBA, NJIP), and no legislative amendments to the contrary to clarify that phrase were adopted.

The IDED Board reviewed the Committee member’s comments and concluded that no changes to the proposed amendments were required on this subject. The final amendments include the following revisions to Item 9, concerning requirements for businesses qualifying as an “Alternative Eligible Business”:

1. Paragraph 59.7(l)“a” was revised to eliminate references to operations “in the enterprise zone” because businesses qualifying under this rule are not required to be located in a zone. This paragraph was changed to reflect the statutory language dealing with alternative eligible businesses: operations “in a location which qualifies the business under this rule” rather than “in an enterprise zone.”

2. The reference to the commission in paragraph 59.7(l)“d” was deleted because commission approval is not required for businesses applying as an “alternative eligible business.” Therefore, the reference to the authority of the commission to extend the job creation time period for businesses in counties with a population of 10,000 or less or in a

city of2,000 or less is not appropriate for businesses qualifying under this rule. The reference to operations “in the enterprise zone” was removed since it is not a requirement that the business be located in the zone if qualifying under this rule.

3. In paragraph 59.7(l)“e,” the reference to the local enterprise commission was also deleted since, for alternative eligible businesses, a local enterprise zone commission would not be required to determine the fair market value of land and a vacant building suitable for industrial use. The revised amendment assigns the valuation authority to the city for businesses qualifying as an “alternative eligible business.”

These amendments are intended to implement Iowa Code Supplement sections 15E.191 through 15E.196 as amended by 1998 Iowa Acts, House File 2164, House File 2395, section 17, and House File 2538.



Item 1. Amend rule 261—59.1(15E) as follows:

261—59.1(15E) Purpose. The purpose of the establishment of an enterprise zone in a county or city is to promote new economic development in economically distressed areas. Eligible businesses (including eligible housing businesses) locating or located in an enterprise zone are authorized under this program to receive certain tax incentives and assistance. The intent of the program is to encourage communities to target resources in ways that attract productive private investment in economically distressed areas within a county or city.

Item 2. Amend the definitions of “Act” and “Commission” in rule 261—59.2(15E) as follows:

“Act” means Iowa Code Supplement sections 15E.191 through 15E.196 as amended by 1998 Iowa Acts, House Files 2164, 2395, section 17, and 2538.

“Commission” or “enterprise zone commission” means the enterprise zone commission established by a city or county within a designated enterprise--zone to review applications for incentives and assistance for businesses located within or requesting to locate within certified enterprise zones over which the enterprise zone commission has jurisdiction under the Act.

Item 3. Amend paragraph 593(l)“b” as follows:b. Zone parameters. Up to 1 percent of a county area

may be designated as an enterprise zone. A county may establish more than one enterprise zone. The total amount of land designated as enterprise zones under subrules 59.3(1) and 59.3(2) shall not exceed in the aggregate 1 percent of the total county area (excluding any area which qualifies as an urban or rural enterprise community under Title XIII of the federal Omnibus Budget Reconciliation Act of 1993). An eligible county containing a city whose boundaries extend into an adjacent county may establish an enterprise zone in an area of the city located in the adjacent county if the adjacent county’s board of supervisors adopts a resolution approving the establishment of the enterprise zone in the city and the two counties enter into an agreement pursuant to Iowa Code chapter 28E regarding the establishment of the enterprise zone.

Item 4. Amend paragraph 593(2)“c” as follows:c. Urban or rural enterprise community. Zone parame

ters. A city may establish more than one enterprise zone. Up to 1 percent of the county in which the city is located may be designated as enterprise zones. If there is an area in the city which meets the requirements for eligibility for an urban or

LAB 10/7/98 FILED 715


rural enterprise community under Title XIII of the federal Omnibus Budget Reconciliation Act of 1993, such area shall be designated by the state as an enterprise zone. (The area meeting the requirements for eligibility for an urban or rural enterprise community shall not be included for the purpose of determining the 1 percent aggregate area limitation for enterprise zones.)

ITEM 5. Amend subparagraphs 59_3(3)“a”(3) and (4) as follows:

(3) Certification that the enterprise zone to be designated is within the overall limitation that may not exceed in the aggregate 1 percent of the county area and that the boundaries of the area to be designated are under the jurisdiction of the city or county requesting the designation. If the proposed county enterprise zone contains a city whose boundaries extend into an adjacent county, documentation of the resolution of the board of supervisors of the adjacent county approving the establishment of the zone and a copy of an executed 28E agreement must be submitted to the department as part of the request for zone certification.

(4) Resolution of the city council or board of supervisors, as appropriate, requesting designation of the enterprise zone(s). Included within this resolution may be a statement of the schedule of value-added property tax exemptions that will be offered to all eligible businesses that may locate or expand within the proposed enterprise zone. If a property tax exemption is made applicable only to a portion of the property within the enterprise zone, the designation request submitted to the department must include a description of the uniform criteria which further some planning objective that has been established by the city or county enterprise zone commission and approved by the eligible city or county. Examples of acceptable “uniform criteria” that may be adopted include, but are not limited to, wage rates, capital investment levels, types and levels of employee benefits offered, job creation requirements, and specific targeted industries. “Planning objectives ” may include, but are not limited to, land use, rehabilitation of distressed property, or “brownfields” remediation.

This schedule of value-added property tax exemptions may be approved at the time of zone designation request, but must be approved by the city council or board of supervisors, as appropriate, before the establishment of the local enterprise zone commission. This schedule of value-added property tax exemptions may also include the other property tax exemptions or other property tax related incentives that may be used in conjunction with the enterprise zone such as property tax exemptions that may exist in Urban Revitalization Areas or Tax Increment Financing (TIF) districts that may exist within Urban Renewal Areas. Property tax exemptions authorized under Iowa Code chapter 427B may not be used, as stated in Iowa Code section 427B.6, in conjunction with property tax exemptions authorized by city council or county board of supervisors within the local enterprise zone. The city or county shall forward a copy of the official resolution listing the property tax exemption schedule(s) to the department and to the local assessor.

Item 6. Amend rule 261—59.4(15E) as follows:

261—59.4(15E) Enterprise zone commission. Following notice of enterprise zone certification by the board, the applicant city or county shall establish an enterprise zone commission. The commission shall review applications from eligible businesses and eligible housing businesses located in the zone and forward eligible approved applications to the department for final review and approval.

59.4(1) Commission composition.a. County enterprise zone commission. Whether an en

tire county-or a-city or cities within a-county are eligible for enterprise-zone-status, a A county shall have only one enterprise zone commission to review applications for incentives and assistance for businesses (including eligible housing businesses) located or requesting to locate within a certified enterprise zone. The enterprise zone commission shall consist of nine members. Five of these members shall be comprised of:

(1) One representative of the county board of supervisors,

(2) One member with economic development expertise selected by the department,

(3) One representative of the county zoning board,(4) One member of the local community college board of

directors, and(5) One representative of the local workforce develop

ment center selected by the Iowa workforce development department unless otherwise designated by a regional advisory board.

The five members identified above shall select the remaining four members. If the enterprise zone consists of an area meeting the requirements for eligibility for an urban or rural enterprise community under Title XIII of the federal Omnibus Budget Reconciliation Act of 1993, one of the remaining four members shall be a representative of that enterprise community zone. If the enterprise zone is located in a county that does not have a county zoning board, the representatives identified in 59.4(l)“a”(l), (2), (4), and (5) shall select an individual with zoning expertise to serve as a member of the commission.

b. City enterprise zone commission. If the-enterprise zone has qualified under the city-criteria, the commissionshall consist-ofthe five members-identified in-paragraph-a^above and the remaining four members shall be selected bythese five members. One of-the four members shall be a representative of an international labor organization. If the enterprise zone-consists of an area meeting the requirements for eligibility for-an urban or rural enterprise community-under Title XIII of the federal Omnibus-Budget Reconciliation Act of 1993, one of the remaining four members shall be arepresentative of that enterprise community zone. If an-en-terprise zone is located in any city, an enterprise zone commission may also include a representative, chosen by -the-city council, of each such city located in the zone. A city in which an eligible enterprise zone is certified shall have only one enterprise zone commission. A city with a population of24,000 or more which designates an enterprise zone pursuant to Iowa Code Supplement section 15E.194, subsection 2, and in which an eligible enterprise zone is certified shall establish an enterprise zone commission to review applications from qualified businesses located within or requesting to locate within an enterprise zone to receive incentives or assistance. The commission shall consist of nine members. Six of these members shall consist of:

(1) One representative of an international labor organization,

(2) One member with economic development expertise chosen by the department of economic development,

(3) One representative of the city council,(4) One member of the local community college board of

directors,(5) One member of the city planning and zoning commis

sion, and

/

716 FILED IAB 10/7/98


(6) One representative of the local workforce development center selected by the Iowa workforce development department unless otherwise designated by a regional advisory board.

The six members identified above shall select the remaining three members. If the enterprise zone consists of an area meeting the requirements for eligibility for an urban enterprise community under Title XIII of the federal Omnibus Budget Reconciliation Act of 1993, one of the remaining three members shall be a representative of that community. If a city contiguous to the city designating the enterprise zone is included in an enterprise zone, a representative of the contiguous city, chosen by the city council, shall be a member of the commission.

59.4(2) Department review of composition.a. Once a county or city has established an enterprise

zone commission, the county or city shall provide the department with the following information to verify that the commission is constituted in accordance with the Act and these rules:

(1) The name and address of each member.br (2) An identification of what group the member is rep

resenting on the commission.(3) Copies of the resolution or other necessary action

of a governing body, as appropriate, by which a member.was appointed to the commission.

4= (4) Any other information that the department may reasonably request in order to permit it to determine the validity of the commission’s composition.

b. If a city has established an enterprise zone commission prior to July 1,1998, the city may petition to the department of economic development to change the structure of the existing commission. A petition to amend the structure of an existing city enterprise zone commission shall include the following:

(1) The names and addresses of the members of the existing commission,

(2) The date the commission was approved by the department,

(3) The proposed changes the city is requesting in the composition of the commission,

(4) Copies of the resolution or other necessary action of a governing body, as appropriate, by which a member was appointed to the commission.

59.4(3) Commission policies and procedures. Each commission shall develop policies and procedures which shall, at a minimum, include:

a. Processes for receiving and evaluating applications from qualified businesses seeking to participate within the enterprise zone; and

b. Operational policies of the commission such as meetings; and

c. A process for the selection of commission officers and the filling of vacancies on the commission; and

d. The designation of staff to handle the day-to-day administration of commission activities.

e. Additional local eligibility requirements for businesses, if any, as discussed in subrule 59.6(1) 59.9(1).

Item 7. Amend rule 261—59.5(15E) as follows:261—59.5(15E) Eligible business. Eligibility. To participate in the enterprise zone program, a business must qualify under one of three categories: as an eligible business, an alternative eligible business, or an eligible housing business. Refer to rule261—59.6(15E) for a description of the eligibility requirements and benefits available to a qualified “eligi-

blebusiness. ” Refer to rule261—59.7(15E) for a description of the eligibility requirements and benefits available to a qualified “alternative eligible business. ” Refer to rule 261— 59.8(15E) for a description of the eligibility requirements and benefits available to a qualified “eligible housing business. ”261—59.6(15E) Eligible business.

59.5(1) 59.6(1) Requirements. A business which is or will be located in an enterprise zone is eligible to receive incentives and assistance under the Act if the business meets all of the following:

a. No closure or reduction. The business has not closed or reduced its operation in one area of the state and relocated substantially the same operation into the enterprise zone. This requirement does not prohibit a business from expanding its operation in an enterprise zone if existing operations of a similar nature in the state are not closed or substantially reduced.

b. No retail. The business is not a retail business or a business whose entrance is limited by a cover charge or membership requirement.

c. The-business pays at least 80 percent of the-eest of a standard medical and-dental insurance plan for all full-timeemployees working at-the facility in which-the new investment will occur. Employee benefits. The business provides all full-time employees with the option of choosing one of the following:

(1) The business pays 80 percent of both of the following:1. The cost of a standard medical insurance plan, and2. The cost of a standard dental insurance plan or an

equivalent plan.(2) The business provides the employee with a monetarily

equivalent plan to the plan provided for in subparagraph (1) above.

d. Wage levels. The business pays an average wage that is at or greater than 90 percent of the lesser of the average county wage or average regional wage, as determined by the department. However, in any circumstance, the wage paid by the business for the project jobs shall not be less than $7.50 per hour. The department will periodically calculate, revise and issue the “average county wage” and the “average regional wage” figures that will be used for determining business eligibility in the program. However, in any circumstance, a company will be deemed eligible for participation in the enterprise zone if it pays an hourly wage of $9.50 or greater. The local enterprise zone commission may establish higher company eligibility wage thresholds if it so desires.

e. Job creation. The business expansion or location must result in at least ten full-time project jobs and those project jobs must be maintained for at least ten years. The business shall create these jobs within three years of the effective date of the business’s agreement with the department and the city or county, as appropriate. For an existing business in counties with a population of 10,000 or less or in cities with a population of2,000 or less, the commission may adopt a provision that allows the business to create at least five initial jobs with the additional five jobs to be added within five years. The business shall include in its strategic plan the time line for job creation. If the existing business fails to meet the ten-job creation requirement within the five- year period, all incentives and assistance will cease immediately.

f. Capital investment. The business makes a capital investment of at least $500,000. If the business will be occupying a vacant building suitable for industrial use, the fair market value of the building and land, not to exceed

LAB 10/7/98 FILED 717


$250,000, as determined by the local enterprise zone commission, shall be counted toward the capital investment requirement. An existing business that has been operating in the enterprise zone for at least five years is exempt from the capital investment requirement of this paragraph of up to $250,000 of the fair market value, as established by an appraisal, of the building and land. The capital investment amount stated in the business’s application must be completed within three years of the effective date of the agreement described in rule 59.9(15E).

53?.5(2) 59.6(2) Additional information. In addition to meeting the requirements under subrule 59.5(1) 59.6(1), an eligible business shall provide the enterprise zone commission with all of the following:

a. The long-term strategic plan for the business, which shall include labor and infrastructure needs.

b. Information dealing with the benefits the business will bring to the area.

c. Examples of why the business should be considered or would be considered a good business enterprise.

d. The impact the business will have on other Iowa businesses in competition with it.

e. An affidavit that it has not, within the last five years, violated state or federal environmental and worker safety statutes, rules, and regulations or if such violation has occurred that there were mitigating circumstances or such violations did not seriously affect public health or safety or the environment.

59.6(3) Benefits. The following incentives and assistance are available to an eligible business within a certified enterprise zone only when the average wage of all the new project jobs meets the minimum wage requirements of 59.6(1)“d":

a. New jobs supplemental credit; alternative credit for housing assistance programs.

(1) An approved business shall receive a new jobs supplemental credit from withholding in an amount equal to IV2

percent of the gross wages paid by the business, as provided in Iowa Code section 15.331. The supplemental new jobs credit available under this program is in addition to and not in lieu of the program and withholding credit ofl V2 percent authorized under Iowa Code chapter 260E. Additional new jobs created by the project, beyond those that were agreed to in the original agreement as described in 261—59.12(15E), are eligible for the additional 1V2 percent withholding credit as long as those additional jobs meet the local enterprise zone wage eligibility criteria and are an integral part or a continuation of the new location or expansion. A pproval and administration of the supplemental new jobs credit shall follow existing procedures established under Iowa Code chapter 260E. Businesses eligible for the new jobs training program are those businesses engaged in interstate commerce or intrastate commerce for the purpose of manufacturing, processing, or assembling products, conducting research and development, or providing services in interstate commerce, but exclude retail, health or professional services.

(2) As an alternative to the credit described in subparagraph (1) above, a business may provide a housing assistance program in the form of down payment assistance or rental assistance for employees in new jobs, as defined in Iowa Code Supplement section 260E.2, who buy or rent housing located within any certified enterprise zone. A business establishing a housing assistance program shall fund this program through a credit from withholding based on the wages paid to the employees participating in the housing assistance program. An amount equal to V/2 percent of the gross wages paid by the employer to each employee partici

pating in the housing assistance program shall be credited from the payment made by an employer pursuant to Iowa Code section 422.16. If the amount of the withholding by the employer is less than 1V2 percent of the gross wages paid to the employees, then the employer shall receive a credit against other withholding taxes due by the employer. The employer shall deposit the amount of the credit quarterly into a housing assistance fund created by the business out of which the business shall provide employees enrolled in the housing assistance program with down payment assistance or rental assistance.

(3) A business may enter into an agreement with the county or city designating the enterprise zone pursuant to Iowa Code section 15E.194 to borrow initial moneys to fund a housing assistance program. The county or city may appropriate from the general fund of the county or city for the assistance program an amount not to exceed an amount estimated by the department of revenue and finance to be equal to the total amount of credit from withholding for employees determined by the business to be enrolled in the program during the first two years. The business shall pay the principal and interest on the loan out of moneys received from the credit from withholding provided for in subparagraph (1). The terms of the loan agreement shall include the principal amount, the interest rate, the terms of repayment, and the term of the loan. The agreement shall require that the down payment assistance or rental assistance provided for employees in new jobs be repaid, in whole or in part, in the event an employee is no longer employed by the business or defaults under the agreement between the business and an employee. The terms of the loan agreement shall not extend beyond the period during which the enterprise zone is certified. The employer shall certify to the department of revenue and finance that the credit from withholding is in accordance with an agreement and shall provide other information the department may require.

The business shall enter into an agreement with each employee receiving down payment or rental assistance. The agreements shall include terms and conditions of the receipt of the assistance and repayment provisions should the employee no longer work for the business or default under the terms of the agreement.

(4) An employee participating in the housing assistance program will receive full credit for the amount withheld as provided in Iowa Code section 422.16.

(5) The 1V2percent supplemental credit authorized under this rule may be apportioned between the 260E training programs described in subparagraph (1) and the down payment or rental assistance program described in subparagraph (2).

b. Value-added property tax exemption.(1) The county or city for which an eligible enterprise

zone is certified may exempt from all property taxation all or a portion of the value added to the property upon which an eligible business locates or expands in an enterprise zone and which is used in the operation of the eligible business. This exemption shall be authorized by the city or county that would have been entitled to receive the property taxes, but is electing to forego the tax revenue for an eligible business under this program. The amount of value addedfor purposes of Iowa Code Supplement section 15E. 196 shall be the amount of the increase in assessed valuation of the property following the location or expansion of the business in the enterprise zone.

(2) If an exemption is made applicable only to a portion of the property within an enterprise zone, there must be approved uniform criteria which further some planning objec-

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live established by the city or county zone commission. These uniform criteria must also be approved by the eligible city or county. Examples of acceptable “uniform criteria” that may be adopted include, but are not limited to, wage rates, capital investment levels, types and levels of employee benefits offered, job creation requirements, and specific targeted industries. “Planning objectives” may include, but are not limited to, land use, rehabilitation of distressed property, or “brownfields ” remediation.

(3) The exemption may be allowed for a period not to exceed ten years beginning the year the eligible business enters into an agreement with the county or city to locate or expand operations in an enterprise zone.

c. Investment tax credit. A business may claim an investment tax credit as provided in Iowa Code section 15.333. A corporate tax credit may be claimed of up to a maximum of 10 percent of the new investment which is directly related to new jobs created by the location or expansion of the business in the enterprise zone. If the business is a partnership, subchapter S corporation, limited liability company, or an estate or trust electing to have the income taxed directly to the individual, an individual may claim the tax credit allowed. Any credit in excess of tax liability for the tax year may be credited to the tax liability for the following seven years or until depleted, whichever occurs first. The business participating in the enterprise zone may not claim an investment tax credit for capital expenditures above the amount stated in the agreement described in 261—59.12(15E). An eligible business may instead seek to amend the contract, allowing the business to receive an investment tax credit for additional capital expenditures, or may elect to submit a new application within the enterprise zone. For purposes of this rule, the capital expenditures eligible for the investment tax credit under the enterprise zone program are the costs of machinery and equipment used in the operation of the eligible business and the cost of improvements to real property which is used in the operation of the business and which receives a partial property tax exemption for the value added as described in Iowa Code section 15.332.

d. Research activities credit. A business is eligible to claim a research activities credit as provided in Iowa Code section 15.335. This benefit is a corporate tax credit for increasing research activities in this state during the period the business is participating in the program. For purposes of claiming this credit, a business is considered to be “participating in the program ’’for a period often years from the date the business’s application was approved by the department. This credit equals 6Vz percent of the state’s apportioned share of the qualifying expenditures for increasing research activities. The state’s apportioned share of the qualifying expenditures for increasing research activities is a percent equal to the ratio of qualified research expenditures in this state to total qualified research expenditures. This credit is in addition to the credit authorized in Iowa Code section 422.33. If the business is a partnership, subchapter S corporation, limited liability company, or an estate or trust electing to have the income taxed directly to the individual, an individual may claim the tax credit allowed. Any tax credit in excess of the tax liability shall be refunded to the eligible business with interest computed under Iowa Code section 422.25. In lieu of claiming a refund, the eligible business may elect to have the overpayment credited to its tax liability for the following year.

e. Refund of sales, service and use taxes paid to contractors or subcontractors. A business is eligible for a refund of

sales, service and use taxes paid to contractors and subcontractors as authorized in Iowa Code section 15.331A.

(1) An eligible business may apply for a refund of the sales and use taxes paid under Iowa Code chapters 422 and 423 for gas, electricity, water or sewer utility services, goods, wares, or merchandise, or on services rendered, furnished, or performed to or for a contractor or subcontractor and used in the fulfillment of a written contract relating to the construction or equipping of a facility within the enterprise zone.

(2) Taxes attributable to intangible property and furniture and furnishings shall not be refunded. To receive a refund of the sales, service and use taxes paid to contractors or subcontractors, the eligible business must, within six months after project completion, make an application to DRF. For new manufacturing facilities, “project completion ” means the first date upon which the average annualized production of finished product for the preceding 90-day period at the manufacturing facility operated by the eligible business within the enterprise zone is at least 50 percent of the initial design capacity of the facility. For existing facilities, “project completion ” means the date of completion of all improvements included in the enterprise zone project.

59.6(4) Duration of benefits. An enterprise zone designation shall remain in effect for ten years following the date of certification. Any state or local incentives or assistance that may be conferred must be conferred before the designation expires. However, the benefits of the incentive or assistance may continue beyond the expiration of the zone designation.

59.6(5) Application review and submittal. Eligible businesses shall first submit applications for enterprise zone program benefits to the local enterprise zone commission. Commission-approved applications shall be forwarded to the department for final review and approval.

ITEM 8. Renumber rule 261—59.6(15E) as 261— 59.9(15E) and amend as follows:261—§9^6(4SE) 59.9(15E) Commission review of businesses’ applications.

59.9(1) Additional commission eligibility requirements. Under the Act, a commission is authorized to adopt additional eligibility requirements related to compensation and benefits that businesses within a zone must meet in order to qualify for benefits. Additional local requirements that may be considered could include, but are not limited to, the types of industries or businesses the commission wishes to receive enterprise zone benefits; requirements that preference in hiring be given to individuals who live within the enterprise zone; higher wage eligibility threshold requirements than would otherwise be required; higher job creation eligibility threshold requirements than would otherwise be required; the level of benefits required; local competition issues; or any other criteria the commission deems appropriate. If a commission elects to adopt more stringent requirements than those contained in the Act and these rules for a business to be eligible for incentives and assistance, these requirements shall be submitted to the department.

) 59.9(2) Application. The department will develop a standardized application that it will make available for use by businesses within a certified-entarprise zone a business applying for benefits and assistance as an eligible business, an alternative eligible business, or an eligible housing business. The commission may add any additional information to the application that it deems appropriate for a business to qualify as an eligible business or an eligible housing business. If the commission determines that a business qual-

1AB 10/7/98 FILED 719


ifies for inclusion in an enterprise zone and that it is eligible for benefits under the Act, the commission shall submit an application for incentives or assistance to the department.

Item 9. Renumber rule 261—59.7(15E) as 261— 59.11(15E) and adopt new rule 261—59.7(15E) as follows:

261—59.7(15E) Alternative eligible business.59.7(1) Requirements. A business which is not located in

an enterprise zone is eligible to receive incentives and assistance under the enterprise zone program if the business meets all of the following criteria:

a. No closure or reduction. The business has not closed or reduced its operation in one area of the state and relocated substantially the same operation in a location which qualifies the business under this rule. This requirement does not prohibit a business from expanding its operation in a location which qualifies the business under this rule if existing operations of a similar nature in the state are not closed or substantially reduced.

b. No retail. The business is not a retail business or a business whose entrance is limited by a cover charge or membership requirement.

c. Employee benefits. The business provides all fulltime employees with the option of choosing one of the following:

(1) The business pays 80 percent of both of the following:1. The cost of a standard medical insurance plan, and2. The cost of a standard dental insurance plan or an

equivalent plan.(2) The business provides the employee with a monetari

ly equivalent plan to the plan provided for in subparagraph (1) above.

d. Job creation. The business expansion or location must result in at least ten full-time project jobs and those project jobs must be maintained for at least ten years. The business shall create these jobs within three years of the effective date of the business’s agreement with the department and the city or county, as appropriate. The business shall include in its strategic plan the time line for job creation. If the existing business fails to meet the ten-job creation requirement within the five-year period, all incentives and assistance will cease immediately.

e. Capital investment. The business makes a capital investment of at least $500,000. If the business will be occupying a vacant building suitable for industrial use, the fair market value of the building and land, not to exceed $250,000, as determined by the city, shall be counted toward the capital investment requirement. An existing business that has been operating for at least five years is exempt from the capital investment requirement of this paragraph of up to $250,000 of the fair market value, as established by an appraisal, of the building and land. The capital investment amount stated in the business’s application must be completed within three years of the effective date of the agreement described in rule 59.12(15E).

f. City population limits. The business must be or plan to be located in a city with a population between 8,000 and 24,000 as determined by population estimates by the United States Bureau of the Census for the year 1995.

g. Proximity to enterprise zone. The business must currently be or plan to be located in a city which is not more than 35 miles from an existing enterprise zone in this state or an equivalent zone in an adjacent state.

h. NJIP (new jobs and income program) wage levels. The business shall comply with the wage requirements of Iowa Code section 15.329(l)“d.” This section of the Iowa

Code requires the business to agree to pay a median wage for new full-time hourly nonmanagement production jobs of at least $11 per hour indexed to 1993 dollars based on the gross national product implicit price deflator published by the Bureau of Economic Analysis of the United States Department of Commerce or 130 percent of the average wage in the county in which the community is located, whichever is higher.

i. Distress criteria. The business must currently be or plan to be located in an area that meets two of the criteria listed below:

(1) The area has a per capita income of $9,600 or less based on the 1990 census.

(2) The area has a family poverty rate of 12 percent or higher based on the 1990 census.

(3) Ten percent or more of the housing units in the area are vacant.

(4) The valuations of each class of property in the designated area are 75 percent or less of the citywide average for that classification based upon the most recent valuations for property tax purposes.

(5) The area is a blighted area, as defined in Iowa Code section 403.17.

j. City approval. The business must receive approval by ordinance or resolution from the city in which the project is located.

59.7(2) Benefits. A business that qualifies under the “alternative eligible business” category is eligible to receive the following benefits:

a. A new jobs supplemental credit as described in paragraph 59.6(3)“a.”

b. A value-added property tax exemption as described in paragraph 59.6(3)“b.”

c. An investment tax credit as detailed in paragraph 59.6(3)“c.”

d. A research activities credit as outlined in paragraph 59.6(3)“d.”

e. A sales, service, and use tax refund credit as described in paragraph 59.6(3)“e.”

The duration of these benefits shall be the same as set forth in subrule 59.6(4).

59.7(3) Application submittal and review. After approval of a project by ordinance or resolution, the city shall submit an application directly to the department.

Item 10. Rescind rule 261—59.8(15E) and adopt the following new rule in lieu thereof:

261—59.8(15E) Eligible housing business. An eligible housing business includes a housing developer or housing contractor.

59.8(1) Requirements. A housing business shall satisfy all of the following as conditions to receiving the benefits described in this rule.

a. The housing business must build or rehabilitate either:

(1) A minimum of four single-family homes with a value, after completion of the building or rehabilitation, not exceeding $120,000 for each home located in that part of a city or county in which there is a designated enterprise zone, or

(2) One multiple dwelling unit building containing three or more individual dwelling units with a total value per unit, after completion of the building or rehabilitation, not exceeding $120,000 located in that part of a city or county in which there is a designated enterprise zone.

•b. The single-family homes and dwelling units which are rehabilitated or constructed by the housing business shall be modest homes or units, but shall include the necessary

720 FILED IAB 10/7/98


amenities. When completed and made available for occupancy, the single-family homes and dwelling units shall meet the United States Department of Housing and Urban Development’s housing quality standards and local safety standards.

c. The eligible housing business shall complete its building or rehabilitation within two years from the time the business begins construction on the single-family homes and dwelling units. The failure to complete construction or rehabilitation within two years shall result in the eligible housing business becoming ineligible and subject to the repayment requirements and penalties in rule 261—59.13(15E).

d. An eligible housing business shall provide the enterprise zone commission with all of the following information:

(1) The long-term plan for the proposed housing development project, including labor and infrastructure needs.

(2) Information dealing with the benefits the proposed housing development project will bring to the area.

(3) Examples of why the proposed development project should be considered a good housing development project.

(4) An affidavit that it has not, within the last five years, violated state or federal environmental and worker safety statutes, rules, and regulations or if such violations have occurred that there were mitigating circumstances or such violations did not seriously affect public health or safety or the environment.

59.8(2) Benefits. A business that qualifies under the “eligible housing business” category is eligible to receive the following benefits for a period of ten years:

a. Income tax credit. An eligible housing business may claim an income tax credit up to a maximum of 10 percent of the new investment which is directly related to the building or rehabilitating of a minimum of four single-family homes located in that part of a city or county in which there is a designated enterprise zone or one multiple dwelling unit building containing three or more individual dwelling units located in that part of a city or county in which there is a designated enterprise zone. Any credit in excess of the tax liability for the tax year may be credited to the tax liability for the following seven years or until depleted, whichever occurs earlier. If the business is a partnership, subchapter S corporation, limited liability company, or estate or trust electing to have the income taxed directly to the individual, an individual may claim the tax credit allowed. The amount claimed by the individual shall be based upon the pro-rata share of the individual’s earnings of the partnership, subchapter S corporation, limited liability company, or estate or trust.

b. Sales, service, and use tax refund. An approved housing business shall receive a sales, service, and use tax refund as described in paragraph 59.6(3)“e.”

59.8(3) Application submittal and review. An eligible housing business shall first submit an application to the commission for approval. The commission shall forward applications that it has approved to receive benefits and assistance to the department for final review and approval.

Item 11. Renumber rule 261—59.9(15E) as 261— 59.12(15E).

ITEM 12. Renumber rule 261—59.10(15E) as 261— 59.13(15E) and adopt a new rule 261—59.10(15E) as follows:261—59.10(15E) Other commission responsibilities.

59.10(1) Commissions have the authority to adopt a requirement that preference in hiring be given to individuals who live within the enterprise zone. If it does so, the com

mission shall work with the local workforce development center to determine the labor availability in the area.

59.10(2) Commissions shall examine and evaluate building codes and zoning in enterprise zones and make recommendations to the appropriate governing body in an effort to promote more affordable housing development.

ITEM 13. Amend renumbered rule 261—59.11(15E) as follows:261—59.11(15E) Department action on eligible applications. The department may approve, deny, or defer applications from qualified businesses. In reviewing applications for incentives and assistance under the Act, the department will consider the following:

59.11(1) Compliance with the requirements of the Act and administrative rules. Each application will be reviewed to determine if it meets the requirements of Iowa Code Supplement section 15E.193 the Act and these rules. Specific criteria to be reviewed include, but are not limited to: medical and dental insurance coverage; wage levels; number of jobs to be created; and capital investment level.

59.11(2) Competition. The department shall consider the impact of the eligible business on other businesses in competition with it and compare the compensation package of businesses in competition with the business being considered for incentives and assistance under this program, to ensure an overall economic gain to the state.

59.11(3) Displacement of workers. The department will make a good-faith effort to determine the probability that the proposed incentives will displace employees of existing businesses. In determining the impact on businesses in competition with the business seeking incentives or assistance, jobs created as a result of other jobs being displaced elsewhere in the state shall not be considered direct jobs created.

59.11(4) Violations of law. The department will review each application to determine if the business has a record of violations of law. If the department finds that an eligible business, alternative eligible business, or an eligible housing business has a record of violations of the law including, but not limited to, environmental and worker safety statutes, rules, and regulations over a period of time that tends to show a consistent pattern, the eligible business shall not qualify for incentives or assistance under 1998 Iowa Acts, House Files 2164 and 2538 or Iowa Code Supplement sectionl5E.196, unless the department finds that the violations did not seriously affect public health or safety or the environment, or if they did that there were mitigating circumstances. If requested by the department, the business shall provide copies of materials documenting the type of violation, any fees or penalties assessed, court filings, final disposition of any findings and any other information which would assist the department in assessing the nature of any violation.

59.11(5) Commission’s recommendations and additional criteria. For each application from a business, the department will review the local analysis (including any additional local criteria) and recommendation of the enterprise zone commission in the zone where the business is located, or plans to locate.

59.11(6) Other relevant information. The department may also review an application using factors it reviews in other department-administered financial assistance programs which are intended to assess the quality of the jobs pledged.

ITEM 14. Amend renumbered rule 261—59.13(15E) as follows:

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261—59.13(15E) Compliance; repayment requirements; recovery of value of incentives.

59.13(1) Annual certification. A business that is approved to receive incentives or assistance shall, for the length of its designation as an enterprise zone business, certify annually to the county or city, as applicable, and the department its compliance with the requirements of Iowa Code section 15E.183 the Act and these rules.

59.13(2) Repayment. If a business has received incentives or assistance under lewa Code-section 15E.486 1998 Iowa Acts, House Files 2164 and 2538, or Iowa Code Supplement section 15E.196 and fails to meet and maintain any one of the requirements of Iowa Code section 15E.183 and 264—59.5(15) the Act or these rules to be an eligible business, the business is subject to repayment of all or a portion of the incentives and assistance that it has received.

59.13(3) Calculation of repayment due. If a business fails in any year to meet any one of the requirements of Iowa Code Supplement-section 15E. 193(1) and 261—59.5(15E) the Act or these rules to be an eligible business, it is subject to repayment of all or a portion of the amount of incentives received.

a. Failure to meet/maintain requirements. If a business fails in any year to meet or maintain any one of the requirements of Iowa Code Supplement sectk>n-15E:193(t^ the Act or these rules, except its job creation requirement which shall be calculated as outlined in paragraph “b” below, the business shall repay the value of the incentives received for each year during which it was not in compliance.

b. Job creation shortfall. If a business does not meet its job creation requirement, repayment shall be calculated as follows:

(1) If the business has met 50 percent or less of the requirement, the business shall pay the same percentage in benefits as the business failed to create in jobs.

(2) More than 50 percent, less than 75 percent. If the business has met more than 50 percent but not more than 75 percent of the requirement, the business shall pay one-half of the percentage in benefits as the business failed to create in jobs.

(3) More than 75 percent, less than 90 percent. If the business has met more than 75 percent but not more than 90 percent of the requirement, the business shall pay one- quarter of the percentage in benefits as the business failed to create in jobs.

59.13(4) DRF; county/city recovery. Once it has been established, through the business’s annual certification, monitoring, audit or otherwise, that the business is required to repay all or a portion of the incentives received, the department of revenue and finance and the city or county, as appropriate, shall collect the amount owed. The city or county, as applicable, shall have the authority to take action to recover the value of taxes not collected as a result of the exemption provided by the community to the business. The department of revenue and finance shall have the authority to recover the value of state taxes or incentives provided under 1998 Iowa Acts, House Files 2164 and2538, or Iowa Code Supplement section 15E.196. The value of state incentives provided under 1998 Iowa Acts, House Files 2164 and 2538, or Iowa Code Supplement section 15E.196 includes applicable interest and penalties.

Item 15. Amend 261—Chapter 59, implementation sentence, as follows:

These rules are intended to implement Iowa Code Supplement sections 15E.191 through 15E.196 as amended by

1998 Iowa Acts, House Files 2164, 2395, section 17, and 2538.



ARC 8375AEDUCATION DEPARTMENT [281]

Adopted and Filed

Pursuant to the authority of Iowa Code section 256.7(5), the Iowa Department of Education hereby adopts amendments to Chapter 21, “Community Colleges,” Iowa Administrative Code.

These amendments describe the instructional course for drinking drivers, including the approval of the instructional course and the setting of tuition and fees by the Department of Education.

Notice of Intended Action was published in the Iowa Administrative Bulletin July 15,1998, as ARC 8179A. These amendments are identical to those published under Notice of Intended Action. A public hearing was held on August 4, 1998, and no comments were received.

These amendments are intended to implement Iowa Code section 321J.22.



Item 1. Amend 281—Chapter 21, Division III, title, as follows:

INSTRUCTION INSTRUCTIONAL COURSE FOR DRINKING DRIVERS

Item 2. Amend 281—Chapter 21 by renumbering rules 281—2130(321.1) and 281—2131(321.1) as 281— 2131(32U) and 281—2132(321J) and adopting the following new rule:281—213Q(321J) Purpose. The purpose of the instructional course for drinking drivers is designed to inform the offender about drinking and driving and encourage the offender to assess the offender’s own drinking and driving behavior in order to select practical alternatives.

Item 3. Amend renumbered rule 281—21.31(321J) as follows:

281—2131(321J) Course. The instruction instructional course for drinking drivers shall be developed and approved by the state board of education for use by community colleges. Each course of instruction shall include establish the following:

1. Factual information about the physical effects-of alco- h©H An understanding that alcohol-related problems could happen to anyone and that a person’s drinking choices matter. The course illustrates common views of society that prevent people from taking drinking choices seriously. Research is presented to challenge common views with an understanding that alcohol problems are related to lifestyle choices.

722 FILED IAB 10/7/98


2. Assistance to each student with self assessment and an increased awareness of drinking and driving problems;An understanding that specific low-risk choices will help reduce the risk of experiencing alcohol-related problems at any point in life. The course presents research-based, low- risk guidelines.

3. An attempt te-motivate each student to select alternatives to drinking and driving; and Methods of providing support for making low-risk choices.

4. Assistance to students in establishing contact with service agencies within their communities. An accurate description of the progression of drinking to the development of alcoholism to help people weigh the risk involved with high- risk drinking and to see how high-risk choices may jeopardize their lives and the lives of others.

5. Opportunities to develop a specific plan of action to follow through with low-risk choices. A list of community resources is provided for ongoing support and treatment as needed.

Item 4. Amend renumbered rule 281—21.32(321J) as follows:

281—2U2(321J) Fee Tuition fee established.1. Each person enrolled in the instruction instructional

course for drinking drivers shall pay to the community college a tuition fee of $60 75 to-defray the expenses-of for the approved 12-hour course, plus a reasonable book fee or $175 for the approved 28-hour weekend course, plus a reasonable book fee. unless the person has been determined to be indigent. For the approved 28-hour weekend course, the community college shall set a reasonable fee for lodging, meals, and security.

2. A person shall not be denied enrollment in a course by reason of a person’s indigency. For court-ordered placement, the court shall determine a person’s indigency. In all other instances, the community college shall determine indigency upon application.

ITEM 5. Amend 281—Chapter 21, Division III, implementation sentence, as follows:

Rules 21.30(321J) and-21.31(321J) These rules are intended to implement Iowa Code section 321 J.22.


Editor’s NOTE: For replacement pages for LAC, see IAC Supplement 10/7/98.

ARC 8369AEDUCATION DEPARTMENT[281]

Adopted and Filed

Pursuant to the authority of Iowa Code section 256.7(5), the Iowa Department of Education hereby amends Chapter 21, “Community Colleges,” Iowa Administrative Code.

This amendment describes the plan for distribution of general state financial aid appropriated by the General Assembly to the Department of Education for community college programs.

Notice of Intended Action was published in Iowa Administrative Bulletin on July 15,1998, as ARC 8178A. A public hearing was held via ICN on August 4,1998. Due to the pub

lic comments received, the following changes were made to the Notice:

1. In 21.45(1), in the definition of “Eligible noncredit courses” in numbered paragraph “10,” the word “adult” has been added in two instances as follows: ABE/aduIt high school completion/ESL and adult High School Completion.

2. In 21.45(1), the definition of “Eligible student” now reflects public comment received prior to and during the public hearing. The word “eligible” has been added to “credit” and “noncredit courses.” The remainder of the original definition has been reworded in order to clarify and correct the language.

3. In 21.45(2), paragraphs “b” to “d” have been changed to clarify the manner and sequence of distribution for the reader. A new paragraph “e” was added to state that if the increase in the total state general aid exceeds the funds needed to meet the allocation requirements, the remaining amount shall be distributed based on each college’s most recent proportional share of total FTEE.

A sentence has also been added at the end of the subrule to state that if the total increase in total state general aid is equal to or less than 2 percent, the increase shall be distributed as inflation.

4. Subrule 21.45(8) has been added to require each community college to complete and submit an annual student enrollment audit to the Department of Education. Adjustments to community college state general aid allocations shall be made based on student enrollment audit outcomes.

This rule is intended to implement Iowa Code sections 260C.14(21) and 260C.49.

This rule will become effective on November 11, 1998.The following rule is adopted.

Rescind rule 281—21.45(260D) and adopt the following new rule:

281—21.45(260C) Purpose. A distribution plan for general state financial aid to Iowa’s community colleges is established for the fiscal year commencing July 1, 1999, and succeeding fiscal years. Funds appropriated by the general assembly to the department of education for general financial aid to community colleges shall be allocated to each community college in the manner defined in this chapter.

21.45(1) Definitions. For the purpose of this rule, the following definitions shall apply:

“Academic year” means a period of time which begins with the first day of the fall term for each community college and continues through the day preceding the start of the next fall term as indicated in the official college calendar.

“Base funding” means the amount of general state financial aid each community college received as an allocation from appropriations made from the state general fund in the base year.

“Base year” means the fiscal year ending during the calendar year in which a budget is certified.

“Contact hour” for a noncredit course equals 50 minutes of contact between an instructor and students in a scheduled course offering for which students are registered.

“Credit hour,” for purposes of community college funding distribution, shall be as defined in subrule 21.2(13).

“Eligible credit courses” means all credit courses that are eligible for general state financial aid and which must be part of an approved program of study. Developmental education courses that award credit hours are eligible for inclusion in the FTEE calculation. The department of education shall re-

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view and provide a determination should a question of eligibility occur.

“Eligible noncredit courses” means all noncredit courses eligible for general state financial aid that must fit one of the following ten eligible categories for noncredit courses:

1. Community resource development: courses that provide participants with information which may result in improved and enhanced community resources or community development programs.

2. State-mandated or state-approved: organized educational instruction designed to meet legislated or licensing requirements as defined in the Code of Iowa. The educational curriculum for such instruction is approved by the department of education, licensing boards, or state departments.

3. Legal and consumer rights: a group of instructional courses that provide the opportunity to become a better- informed and more thoughtful consumer and identify the consumer’s rights and obligations under a contract.

4. Health: courses designed to enhance understanding, attitudes, and practices relating to individual, family, and community health. Instruction is based on scientific facts that serve as a foundation for decision making and action to achieve health potentials.

5. Employment and business: learning activities that are designed to develop skills needed to obtain and enhance employment. The activities will provide an understanding of business principles and practices having applications in business and industry locally, regionally, nationally, and internationally.

6. Programs for individuals with restricted incomes: a group of instructional courses designed for individuals living on a restricted income. These individuals include the elderly, widows and widowers, unemployed or those receiving financial aid from federal and state welfare agencies and organizations. Each course offered in this classification must clearly indicate that it is offered for restricted-income individuals, and enrollment efforts must be directed to these individuals.

7. Environmental education: instructional courses designed to assist individuals to understand the effect upon one’s health and well-being of environmental factors such as water supply, pollution control, food contamination, air pollution, radiation exposure, and hazardous materials.

8. Consumer and homemaking adult education: instructional courses designed to include instruction on child development, care and guidance; clothing and textiles; consumer education; family/individual health; family living and parenthood; food and nutrition; home management (including resource management); and housing, home furnishing and equipment.

9. Adult vocational training/retraining education: individual vocational courses, each complete in itself and designed for the specific purposes of training persons for upgrading the skills of persons presently employed, and retraining persons for new employment.

10. ABE/adult high school completion/ESL: includes adult basic education, adult high school completion and English as a second language.The department of education shall review and provide a determination should a question of eligibility occur.

“Eligible student” means a student enrolled in eligible credit or eligible noncredit courses. Ineligible students include students enrolled in courses that deal with recreation, hobbies, casual culture, or self-enjoyment subjects; programs or contracts funded from 260E sources; students in high school completion programs registered with a commu

nity college on or before the third Friday in September, which are claimed for funding by a K-12 school district; students registered as a part of the department of corrections contracts through the state penal institutions; students served for the sole purpose of testing; or students who reside in nursing homes. The department of education shall review and provide a determination should a question of eligibility occur.

“Enrollment,” for the purposes of calculating the distribution of the proportional share of state general aid, means fulltime equivalent enrollment (FTEE).

“Fiscal year” means a year beginning July 1 of a given calendar year and ending June 30 of the next calendar year.

“Full-time equivalent enrollment (FTEE)” means that one FTEE equals 24 credit hours for credit courses or 600 contact hours for noncredit courses generated by all eligible students enrolled in eligible courses.

“Inflation rate” shall be calculated by determining the percent change in the consumer price index for all urban consumers (CPI-U) as a percent change from the value for the quarter ending June 30 twelve months prior to the beginning of the base year to the value for the quarter ending June 30 prior to the base year.

21.45(2) Moneys appropriated by the general assembly from the general fund to the department of education for community college purposes for general state financial aid for a fiscal year shall be allocated to each community college by the department of education based on each community college’s base funding, the inflation rate, and the college’s proportional share of the total FTEE. The appropriations shall be allocated in the following manner and sequence:

a. Base funding. The amount of general state financial aid each community college received as an allocation from appropriations made from the state general fund in the base year.

b. Inflation rate. After the base funding has been determined, a 2 percent inflation increase shall be multiplied by each college’s state aid allocation from the base year.

c. If the increase in the total state general aid exceeds 2 percent, an amount up to 1 percent shall be distributed based upon each college’s most recently determined proportional share of FTEE.

d. Additional inflation rate. If the inflation rate exceeds 2 percent and the increase in total state aid permits, each community college’s allocation shall be increased until the inflation rate is satisfied.

e. Additional proportional share of total FTEE. If the increase in the total state general aid exceeds the funds needed to meet the allocation requirements in paragraphs “a” through “d” above, the remaining amount shall be distributed based on each college’s most recent proportional share of total FTEE.If the total increase in total state general aid is equal to or less than 2 percent, the increase shall be distributed as inflation.

21.45(3) Program length for the associate of applied sciences (AAS) degree in vocational-technical subjects and for the associate of applied arts (AAA) degrees shall consist of an academic program being the equivalent of a maximum of four semesters and two summer sessions of instruction. AAS and AAA degree programs shall not exceed a maximum of 86 credit hours unless the department of education has granted a waiver pursuant to 21.45(5).

21.45(4) All credit-bearing courses required for program admittance or graduation, or both, must be included in the 86-credit-hour maximum, with the exception of developmental credit hours. Prerequisites that provide an option to

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EDUCATION DEPARTMENT^281](cont’d)

students for credit or noncredit shall be counted toward the program maximum of 86 credit hours. Noncredit prerequisites will not be counted toward the 86-credit-hour maximum.

21.45(5) AAS and AAA programs that receive accreditation from nationally recognized accrediting bodies may appeal maximum credit-hour-length requirements to the department of education for consideration of a waiver. All AAS and AAA degree programs over the 86-semester-hour maximum must have approved program-length waivers.

21.45(6) All credit certificate and diploma programs as defined in subrule 21.2(10) shall not exceed 48 credit hours.

21.45(7) Each community college shall provide information in the manner and form as determined by the department of education to implement this chapter. If the community college fails to provide the information as requested, the department shall estimate the FLEE of that college.

21.45(8) Each community college is required to complete and submit an annual student enrollment audit to the department of education. Adjustments to community college state general aid allocations shall be made based on student enrollment audit outcomes.

This rule is intended to implement Iowa Code sections 260C.14(21) and 260C.49.



ARC 8373A

EDUCATION DEPARTMENT [281]Adopted and Filed

Pursuant to the authority of Iowa Code section 256.7(5), the Iowa State Board of Education hereby rescinds Chapter 44, “Scho'pl Buses,” Iowa Administrative Code, and adopts a new Chapter 44 with the same title.

Notice of Intended Action was published in the Iowa Administrative Bulletin June 17,1998, as ARC 8073A. A public hearing was held on July 8,1998, followed immediately by a meeting of the Department of Education’s School Bus Construction Standards Advisory Committee. Due to the public comments received and recommendations of the advisory committee, the following changes were made in the chapter as published under Notice of Intended Action.

1. Subrule 44.3(2), paragraph “b,” is amended to require all alternators having a minimum output rating of 100 amperes to produce a minimum of 50 amperes at engine idle speed.

2. Subrule 44.3(5), paragraph “b,” is amended to clarify the applicability of the subrule to specific vehicle types.

3. Subrule 44.3(6), paragraph “g,” subparagraph (2), is amended to eliminate the reference to the term “standard seating plan” as today’s seating plan options vary so widely among manufacturers based on user needs that a standard seating plan reference is no longer relevant to the subrule.

4. Subrule 44.3(6), paragraph “h,” subparagraph (3), is a technical amendment clarifying application of the subrule to the mandatory installation of “automatic” slack adjusters at all wheel positions on air brake-equipped chassis.

5. Subrule 44.3(7), paragraph “d,” is amended to establish a maximum gross vehicle weight category below which a vehicle manufacturer may install its standard or original equipment bumper.

6. Subrule 44.3(7), paragraph “f,” is amended to require installation of tow hooks based on GVWR rather than vehicle type. This more clearly defines which chassis must be equipped with these devices.

7. Subrule 44.3(7), paragraph “h,” has been deleted in its entirety as its content is already referenced in subrule 44.3(11).

8. Subrule 44.3(11), paragraph “a,” is amended to delete the reference to wheel color. Wheel color is addressed in amended paragraph “b” of this subrule.

9. Subrule 44.3(11), paragraph “b,” is amended, as per public comment, to require specified wheel and rim colors on all school buses regardless of wheel, rim or vehicle type.

10. Subrule 44.3(16), paragraph “c,” is amended to correct an omission permitting the chassis tailpipe to exit the rear of the bus body in addition to exiting on the left side of the vehicle ahead of rear dual tires. The requirement that a tailpipe downspout shall be installed, on a left-side exhaust system, is eliminated and thereby made optional.

11. In subrule 44.3(16), a new paragraph “i” is added prohibiting the exhaust system of a school bus from exiting the vehicle beneath a fuel fill, lift door or emergency door.

12. Subrule 44.3(17), paragraph “e,” is amended to apply only to the maximum amount of force necessary to be applied by a driver to open the engine hood and to require that the hood design include features to secure the hood in an open position during engine inspection or maintenance.

13. Subrule 44.3(19), paragraph “e,” is amended to require the equipment and installation procedures used to power a motor vehicle engine with liquefied natural gas (LNG), to comply with National Fire Protection Association Standard 57, “Liquefied Natural Gas Vehicular-Fueled Systems.”

14. Subrule 44.3(19), paragraph “m,” is amended by adding a statement requiring discharge lines to be equipped with a flapper-valve or other device to prevent the line from becoming clogged with foreign matter.

15. In subrule 44.3(19), a new paragraph “p” is added which prohibits the installation of automatic engine shutdown systems on alternative fuel-equipped engines.

16. Subrule 44.3(21), paragraph “b,” is amended to delete the reference to the installation of a tachometer as this requirement is already referenced in revised subrule 44.3(25), paragraph “a,” subparagraph (11).

17. Subrule 44.3(25), paragraph “a,” subparagraph (11), is amended by removing the application of the subrule only to those chassis equipped with rear engines and instead requiring engine tachometers be provided as standard equipment by manufacturers of all school bus chassis greater than 14,500 pounds GVWR.

18. In subrule 44.3(25), paragraph “b,” the word “panel” is replaced with the word “display” wherever it occurs, a correction in terminology consistent within the automotive industry.

19. In subrule 44.3(25), paragraph “b,” subparagraph (3), the word “gauge” is replaced with the words “instrument display,” a correction in terminology consistent within the automotive industry.

20. Subrule 44.3(26), is amended to delete all references to oil filter capacity and instead defer to the manufacturer’s standard oil filter.

LAB 10/7/98 FILED 725


21. Subrule 44.3(31), paragraph “b,” clarifies that either a parabolic or taper-leaf-type spring system is acceptable on a school bus chassis.

22. In subrule 44.3(35), a new paragraph “i” is added which allows the installation and use of tire pressure equalizing systems on dual rear wheel chassis.

23. In subrule 44.3(35), a new paragraph “j” is added which permits the installation and use of hopper-sanding or automatic traction chain systems on school bus chassis.

24. Subrule 44.3(37), paragraph “c,” is deleted in its entirety as per public comment, and paragraph “d” becomes paragraph “c.” Standard warranty provisions applied to new transmissions at the time of purchase are now sufficient, and product reliability has improved significantly.

25. Subrule 44.3(42) is deleted in its entirety as the rule to which it refers is also being deleted as per public comment.

26. Subrule 44.4(3), paragraph “d,” is amended by deleting the words “or forward side” in the second sentence only. It is not necessary that a fastening device be included on a forward hinged battery box door.

27. Subrule 44.4(4), paragraph “b,” is amended to deletethe words “wheelbase minimums and maximums” from the first sentence and to replace them with the words “approximate wheelbases as,” and to change the table headings to the following: first column heading, “Manufacturer’s SeatRows; second column heading, “Rated Capacity”; and the third column heading, “Approximate Wheelbases.” These changes eliminate future design restrictions created when specific minimum and maximum wheelbase measurements are stated.

28. In subrule 44.4(8), the cross reference to “Chains, tire” is changed to subrule 44.3(35).

29. In subrule 44.4(9), the cross reference to “Color” is changed to subrule 44.3(11).

30. The language in subrule 44.4(10), paragraph “a,” seen as design restrictive, is deleted and is replaced by new language which eliminates reference to specific types of construction materials. The new language requires that construction materials be certified by the manufacturer to be durable under normal operating conditions and comply with all federal motor vehicle safety standards.

31. Subrule 44.4(13), paragraph “a,” subparagraph (10), is amended to eliminate design restrictive language and to clarify acceptable methods for attaching the school bus service entry door to the school bus body.

32. Subrule 44.4(14), paragraph “a,” is amended by deleting the word “suspension” from the phrase “suspension seat” in the first sentence. Public comments received recommended that this word be deleted, permitting the purchaser of the school bus to determine the type of driver’s seat to have installed. A suspension seat is typically a more costly option.

33. Subrule 44.4(14), paragraph “d,” is amended by eliminating design restrictive language relating to the location, left or right, of the driver’s document-pouch compartment on the barrier behind the driver.

34. In subrule 44.4(15), paragraph “e,” subparagraph (2), the first sentence is amended to clarify the application of the stated first-aid kit requirements to specified vehicle types rather than to vehicle capacity.

35. Subrule 44.4(15), paragraph “e,” subparagraph (3), is amended by restating the subrule’s applicability based on the school bus types defined in rule 281—44.2(285). In addition, the item “1 pair rounded-end scissors” is deleted from the list of items in a first-aid kit as this item is susceptible to

misplacement and vandalism and is considered to have little benefit in an emergency situation.

36. Subrule 44.4(18) has been amended by changing its catchwords from “Heaters” to “Heating and air conditioning.”

37. Subrule 44.4(18), paragraph “d,” subparagraph (3), is amended by deleting the design restrictive requirement that “right and left front” heaters be provided. The original language would have prohibited use of a single-heater heating system by manufacturers even though a single heater was capable of meeting established heater system performance criteria.

38. Subrule 44.4(18), paragraph “e,” is amended by adding a second sentence to the paragraph permitting Type A vehicles of less than 14,500 pounds GVWR to be equipped with a rear heater system of at least 35,000 BTUs rather than the 80,000-BTU requirement for larger vehicles.

39. Subrule 44.4(18) is amended by adding a new paragraph “o” with numbered subparagraphs (1) through (9) containing the language of paragraphs “a” through “i” of subrule 44.8(1) in the Notice. This places heating and air conditioning requirements within the same rule for ease of reference.

40. Subrule 44.4(19) is amended by changing the phrase “door hinges” to “passenger-door hinges” in both the first and second sentences. With the potential for multiple doors on a school bus, this addition clarifies the door to which the subrule applies.

41. Subrule 44.4(20), paragraph “c,” is amended by deleting the words “not more than six inches” and “on the beltline of the bus” in the first sentence. This change eliminates restrictive language as to the location of this lettering, particularly in cases where structural ribbing on each side of the bus would prohibit placement of the lettering within the area originally specified.

42. Subrule 44.4(20), paragraph “e,” subparagraph (3), is amended by changing the phrase “not less than 10 inches in height” to “not less than 24 inches in length” in the second sentence. This change corrects the minimum size required for bus numbers when placed on the roof of the school bus.

43. Subrule 44.4(20), paragraph “f,” is amended by replacing the phrase “l’/2-inch characters” with the phrase “2-inch characters.” Two-inch lettering is much easier to see and is a standard letter size.

44. Subrule 44.4(20), paragraph “i,” is amended by replacing the words “STOP WHEN YELLOW OR RED LIGHTS FLASH” with the words “UNLAWFUL TO PASS WHEN LIGHTS FLASH.” The replacement lettering more clearly represents the desired actions of motorists following a school bus.

45. Subrule 44.4(22), paragraph “b,” is amended to read, “Roof bows shall be insulated in accordance with 44.4(22)“a.” The original wording restricted insulation to a particular type of roof bow whereas the intent of the subrule is that any type of roof bow be insulated.

46. Subrule 44.4(24), paragraph “m,” subparagraph (3), is deleted and subparagraphs (4) and (5) are renumbered as (3) and (4). The change was recommended to permit, when specified, wiring the roof-mounted strobe lamp through the ignition switch.

47. Subrule 44.4(27), paragraph “b,” is amended as per public comment by deleting the words “on Type A-I, B, C, and D buses.” It is intended that insulation between the frame rail and body be required on all school buses; therefore, reference to vehicle types is unnecessary.

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48. Subrule 44.4(31) is amended by correcting the cross reference to read, “See paragraph 44.4(39).”

49. Subrule 44.4(32) is amended as follows: “A public address system permitting interior or exterior communication with passengers, or both types of communication, may be installed.” This will permit either internal or external public address systems to be installed instead of requiring a system having both internal and external features.

50. Subrule 44.4(34), paragraph “a,” subparagraph (1), is amended by deleting the words “requirements of FMVSS 571.131 Table 1” in the first sentence and inserting in their place “Retroreflective Sheeting Daytime Color Specification Proposal of Appendix B, 1995 National Standards for School Transportation, Central Missouri State University, Humphreys Suite 201, Warrensburg, Missouri 64093.” This is a reference correction.

51. Subrule 44.4(36), paragraph “b,” is amended by deleting the third and fourth sentences which read “The driver contact area of the cushion and seat back shall be made of soil- and wear-resistant cloth material, nylon or equivalent. The remainder of the seat may be of different material.” The change eliminates design restrictive language.

52. Subrule 44.4(36), paragraph “c,” is amended by changing the verb “shall be equipped” to “may be equipped” in the first sentence. As per public comment, this permits a driver’s air suspension seat on chassis equipped with air brakes rather than a required seating system.

53. Subrule 44.4(38) is amended by adding a new paragraph “j” which refers to the source of the industry’s performance standard criteria for fire-blocking upholstery material used on school bus seats and related installation procedures.

54. Subrule 44.4(39) is amended by changing the catchwords to read “Passenger securement seating system.”

55. Subrule 44.4(39), paragraph “b,” is amended by deleting the words “seat belt” wherever found and inserting in their place the words “passenger securement.” The new language is more industry appropriate and less design restrictive.

56. Subrule 44.4(39) is amended by adding new paragraph “d,” which reads as follows: “Children transported in child safety seats shall be secured to the school bus seat according to the child safety seat manufacturer’s instructions.” The new language is intended as instructional in nature and ensures proper securement of child safety seats on school buses.

57. Subrule 44.4(43) is amended by adding new paragraph “i” which permits the installation of a second stop signal arm at the left rear corner of a school bus and specifies placement of lights and markings on this sign.

58. Subrule 44.4(43) is amended by adding new paragraph “j” which permits replacement of the two double- faced, flashing lights in the stop arm with an LED display of lights spelling out the word “STOP.”

59. Subrule 44.4(44) is amended by deleting paragraph “c” in its entirety as this paragraph was a duplication of the information provided in paragraph “b.”

60. Subrule 44.4(46) is amended by deleting paragraphs “a” and “b” and adding the words “See subrule 44.3(16)” to the catchwords. The deleted language was a duplication of that found in subrule 44.3(16).

61. Subrule 44.4(47) is amended by deleting the text of the subrule and adding to the catchwords a cross reference: “See paragraph 44.3(7)“f.” The deleted language was a duplication of that found in subrule 44.3(7), paragraph “f.”

62. Subrule 44.4(49), paragraph “a,” subparagraph (1), is deleted and replaced with the following: “(1) Meet the requirements of FMVSS 302, Flammability of Interior Materi

als. This change corrects the reference to the applicable flammability standard relating to vehicle interior materials.

63. Subrule 44.4(49), paragraph “b,” is amended by adding language to the second sentence prohibiting the obstruction of on-board trash containers to include access to safety equipment.

64. Subrule 44.4(52), paragraph “a,” is amended by changing the verb from “shall be equipped” to “may be equipped” as per public comment. The change permits but does not require the installation of a vandal lock system on school buses.

65. Subrule 44.4(52), paragraph “b,” subparagraph (1), is amended by adding a sentence at the end which exempts application of this subparagraph to Type A vehicles with a leftside driver’s door. These vehicles are already equipped with a door locking mechanism by the manufacturer.

66. Subrule 44.4(53), paragraph “a,” is amended by adding to the first sentence the requirement that the school bus ventilation system include one static, nonclosing exhaust vent placed in the low-pressure area of the roof.

67. Subrule 44.4(53), paragraph “b,” subparagraph (2), is deleted and subparagraphs (3) through (5) are renumbered as (2) through (4). The content of subparagraph (2) was moved to subrule 44.4(53), paragraph “a,” to allow optional placement of static roof vent either in a roof location or as part of the ventilation/emergency escape hatch system.

68. Subrule 44.4(53), paragraph “c,” subparagraph (1), changes the reference to vehicle type from “A-II” to “A-I.”

69. Subrule 44.4(53), paragraph “c,” subparagraph (4), changes the reference to vehicle type from “A-I” to “A-II.”

70. Subrule 44.4(54), paragraph “b,” is amended by adding language that would permit the use of a material other than steel in the construction of school bus body wheelhousings so long as the component performs equally to that of steel when internal or external loading is applied.

71. Rule 281—44.5(285) as noticed has not been adopted, awaiting recently announced federal guidelines relating to the transportation of infants, toddlers, preschool children and children with disabilities. Former rule 281—44.4(285) is renumbered and adopted as new rule 281—14.5(285).

72. Rule 281—44.8(285) has not been adopted. As per public comment, the permissive language contained in this rule has been included in other related areas of the adopted rules.

73. Rule 281—44.9(285) has not been adopted. As per public comment, the permissive language contained in this rule has been included in other related areas of the adopted rules.

Except for the changes noted above, these rules are identical to those published under Notice of Intended Action.

These rules will become effective November 11,1998.This chapter is intended to implement Iowa Code section

285.8.The following chapter is adopted.

Rescind 281—Chapter 44 and adopt the following mew chapter:

CHAPTER 44 SCHOOL BUSES

281—44.1(285) Requirements for manufacturers. In order to protect both the boards of education and manufacturers of school transportation vehicles and equipment from misunderstanding and confusion, all manufacturers shall provide equipment meeting all Iowa vehicle construction require-

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EDUCATION DEPARTMENT281](cont’d)

ments described in this chapter as well as all applicable federal motor vehicle safety standards, which include but are not limited to the following:

101— Control location, identification, and illumination.102— Transmission shift lever sequence, starter interlock,

and transmission braking effect.103— Windshield defrosting and defogging systems.104— Windshield wiping and washing systems.105— Hydraulic braking systems.106— Brake hoses.107— Reflecting surfaces.108— Lamps, reflective devices, and associated equip

ment.109— New pneumatic tires.110— Tire selection and rims.111— Rearview mirrors.113—Hood latch systems.116—Motor vehicle brake fluids.119— New pneumatic tires for vehicles other than passen

ger cars.120— Tire selection and rims for motor vehicles other

than passenger cars.121— Air brake systems.124—Accelerator control systems.131—School bus pedestrian safety devices.205— Glazing materials.206— Door locks and door retention components.207— Seating systems.208— Occupant crash protection.209— Seat belt assemblies.210— Seat belt assembly anchorages.217—Bus window retention and release.219— Windshield zone intrusion for vehicles with a

GVWR of 10,000 pounds or less.220— School bus rollover protection.221— School bus body joint strength.222— School bus passenger seating and crash protection.301— Fuel system integrity.302— Flammability of interior materials.303— Fuel system integrity of compressed natural gas ve

hicles.304— Compressed natural gas fuel container integrity.

281—44.2(285) School bus—type classifications.44.2(1) Type A school bus is a conversion or body

constructed upon a van-type or cutaway front section vehicle with a left-side driver’s door, designed for carrying more than ten persons. This definition shall include two classifications: Type A-I, with a gross vehicle weight rating (GVWR) over 10,000 pounds; and Type A-II, with a GVWR of 10,000 pounds or less.

44.2(2) Type B school bus is a conversion or body constructed and installed upon a van or front-section vehicle chassis, or stripped chassis, with a gross vehicle weight rating of more than 10,000 pounds, designed for carrying more than ten persons. Part of the engine is beneath or behind the windshield and beside the driver’s seat. The entrance door is behind the front wheels.

44.2(3) Type C school bus is a body installed upon a flat- back cowl chassis with a gross vehicle weight rating of more than 10,000 pounds, designed for carrying more than ten persons. All of the engine is in front of the windshield, and the entrance door is behind the front wheels.

44.2(4) Type D school bus is a body installed upon a chassis with the engine mounted in the front, middle, or rear with a gross vehicle weight rating of more than 10,000 pounds, designed for carrying more than ten persons. The engine

may be behind the windshield and beside the driver’s seat; it may be at the rear of the bus, behind the rear wheels; or it may be midway between the front and rear axles. The entrance door is ahead of the front wheels.

281—44.3(285) School bus chassis.443(1) Air cleaner.a. The engine air intake cleaning system shall be fur

nished and properly installed by the chassis manufacturer to meet engine manufacturer’s specifications.

b. The intake air system for diesel engines shall have an air cleaner restriction indicator properly installed by the chassis manufacturer to meet engine specifications.

443(2) Alternator.a. All Type A buses and Type B buses up to 15,000

pounds GVWR shall have a minimum of a 60-ampere alternator.

b. Type A-I and Type B buses over 15,000 pounds GVWR and all Type C and Type D buses shall be equipped with a heavy-duty truck or bus-type alternator meeting SAE J 180, having a minimum output rating of 100 amperes and shall produce a minimum of 50 amperes output at engine idle speed.

c. All buses equipped with an electrical power lift shall have a minimum of a 100-ampere alternator.

d. Direct-drive alternator is permissible in lieu of belt drive. Belt drive shall be capable of handling the rated capacity of the alternator with no detrimental effect on other driven components. Refer to School Bus Manufacturers Technical Committee, School Bus Design Objectives, August 1996 edition, for estimating required alternator capacity.

443(3) Axles. The front and rear axle and suspension systems shall have gross axle weight rating (GAWR) at ground commensurate with the respective front and rear weight loads that will be imposed by the bus.

443(4) Backup warning alarm. A backup warning alarm shall be installed on every school bus. Responsibility for installation of the alarm shall rest with the school bus body manufacturer unless other arrangements have been made between the body and chassis manufacturers. See also subrule 44.4(2).

443(5) Battery system.a. A 12-volt battery system tested at 0 degrees Fahren

heit shall be provided which meets or exceeds the following capacity ratings:

(1) Gasoline engines (greater than 10,000 pounds GVWR): 150 minutes reserve and 500 cold cranking ampere capacity.

(2) Gasoline engines (10,000 pounds GVWR or less): 125 minutes reserve and 450 cold cranking ampere capacity.

(3) Diesel engines (all): 200 minutes reserve and 1,000 cold cranking ampere capacity, or a cold cranking ampere capacity not less than the engine manufacturer’s minimum requirements, whichever is greater.

b. Since all batteries are to be secured in a sliding tray in the body, chassis manufacturers shall temporarily mount the battery on the chassis frame. Type A or B van conversion or cutaway front-section chassis may have the battery located in the forward engine compartment beneath the hood or temporarily mounted for final mounting in the body skirt by the body manufacturer. In these cases, the final location of the battery and the appropriate cable lengths shall be according to the SBMTC School Bus Design Objectives, August 1996 edition, or as mutually agreed upon by the chassis and body manufacturers. In all cases, however, the battery cable pro-

728 FILED LAB 10/7/98


vided with the chassis shall have sufficient length to allow some slack.

443(6) Brakes.a. The braking system shall include the service brake, an

emergency brake that is part of the service brake system and controlled by the service brake pedal, and a parking brake meeting federal motor vehicle safety standards at date of manufacture.

b. Buses using air or vacuum in the operation of the brake system shall be equipped with warning signals readily audible and visible to the driver. The signal shall give a continuous warning when the air pressure available in the system for braking is 60 psi (pounds per square inch) or less or the vacuum in the system available for braking is eight inches of mercury or less. An illuminated gauge shall be provided that will indicate to the driver the air pressure in pounds per square inch or the inches of mercury vacuum available for the operation of the brakes.

c. Buses using a hydraulic-assist brake system shall be equipped with warning signals readily audible and visible to the driver. The warning signal shall provide continuous warning in the event of a loss of fluid flow from primary source and in the event of discontinuity in that portion of the vehicle electrical system that supplies power to the backup system.

d. Every brake system which employs air or vacuum shall include a reservoir of the following capacity, where applicable, for brake operation:

(1) Vacuum-assist brake systems shall have a reservoir used exclusively for brakes that shall adequately ensure a full stroke application so that loss in vacuum shall not exceed 30 percent with the engine off. Brake systems on gas-powered engines shall include suitable and convenient connections for the installation of a separate vacuum reservoir.

(2) Any brake system with a dry reservoir shall be equipped with a check valve or equivalent device to ensure that in the event of failure or leakage in its connection to the source of compressed air or vacuum, the stored dry air or vacuum shall not be depleted by the leakage or failure.

(3) Connection for auxiliary accessory reservoir. The brake system shall include a suitable and convenient connection for installation of an auxiliary air or vacuum reservoir by the body manufacturer.

e. All brake lines and booster assist lines shall be protected from excessive heat, corrosion and vibration and shall be installed to prevent chafing.

f. All brake systems shall be designed to permit visual inspection of brake lining wear without removal of any chassis components.

g. An air brake system is required on every chassis meeting one or more of the following:

(1) Wheelbase equal to or greater than 274 inches.(2) Designed seating capacity rating greater than 66 pas

sengers. Designed seating capacity, also known as manufacturer’s seating capacity, is the actual or theoretical passenger capacity of the vehicle if it were constructed with the maximum number of seating positions.

h. An air brake system shall comply with the following system and component designs:

(1) The system cannot be of wedge design.(2) The system shall include an air dryer system, ap

proved by the department of education, having design features equal to or exceeding the Bendix Westinghouse Model AD9. The system shall be self-purging and capable of removing oil, dirt, and moisture. The dryer system shall also be equipped with a heater to prevent the freezing of moisture

within the system. All plumbing from air compressor to input of air dryer or after-cooler shall provide soft flow bends not producing sumps in the air compressor line having direct entry into the dryer. An automatic moisture ejector or “spit- ter valve” does not meet the above requirement.

(3) Automatic slack adjusters are required to be installed at all wheel positions.

(4) The air compressor shall produce a minimum output of 12.0 cubic feet per minute (CFM).

i. Vehicles with 10,000 pounds GVWR or less shall be equipped with a hydraulic, dual-braking system of manufacturer’s standard, with power assist.

j. Antilock brake systems for either air or hydraulic brakes shall include control of all axles in compliance with Federal Motor Vehicle Safety Standard (FMVSS) 105 or 121.

443(7) Front bumper.a. All school buses shall be equipped with a front bump

er. The chassis manufacturer shall furnish the front bumper on all chassis unless there is a specific arrangement between the chassis manufacturer and body manufacturer that the body manufacturer will furnish the front bumper.

b. The bumper shall be not less than eight inches wide (high), except on Type D buses where the front bumper shall be a minimum of nine inches wide (high).

c. The front bumper shall be of pressed steel channel or equivalent material of sufficient structural and mounting strength to ensure that the front of the vehicle may be lifted by means of an air bumper-type jack, without permanent deformation of the bumper, bracketry, or chassis frame rail(s). The front bumper, except breakaway bumper ends, shall be of sufficient strength to permit pushing a vehicle of equal gross vehicle weight without permanent distortion to the bumper, chassis, or body.

d. On Type A vehicles less than 14,500 pounds GVWR, the front bumper may be of manufacturer’s standard construction.

e. The bumper shall extend beyond the forward-most part of the body, grille, hood, and fenders (flush-mounted bumpers are not acceptable) and shall extend to the outer edges of the fenders at the bumper’s top line. The bumper shall be curved, beveled, or have other design features at each end to prevent snagging or hooking and shall be bolted to the chassis frame so it can be conveniently removed for maintenance.

f. Tow eyes or hooks are required on chassis of 14,500 pounds GVWR or greater. All chassis shall be equipped with two tow eyes or hooks installed by the chassis manufacturer so as not to project beyond the front bumper. Tow eyes or hooks shall be attached to the chassis frame in accordance with the chassis manufacturer’s standards.

g. The bumper shall be designed or reinforced so that it will not deform when the bus is lifted by a chain that is passed under the bumper (or through the bumper if holes are provided for this purpose) and attached to both tow eyes. For the purpose of meeting this standard, the bus shall be empty and positioned on a level, hard surface and both tow eyes shall share the load equally.

443(8) Rear bumper. A rear bumper of manufacturer’s standard construction shall be provided by the chassis manufacturer on all Type A-II chassis unless there is a specific arrangement between the chassis manufacturer and body manufacturer that the body manufacturer will furnish the rear bumper. The rear bumper shall be painted glossy black.

LAB 10/7/98 FILED 729

EDUCATION DEPARTMENT! 281](cont’d)

443(9) Certification, chassis. The chassis manufacturer will, upon request, certify to the state agency having pupil transportation jurisdiction that the product(s) meets minimum standards on items not covered by certification issued under requirements of the National Traffic and Motor Vehicle Safety Act.

443(10) Clutch.a. Clutch torque capacity shall be equal to or greater

than the engine torque output.b. A starter interlock shall be installed to prevent actua

tion of the starter if the clutch is not depressed.443(11) Color.a. Chassis and front bumper shall be black. Body cowl,

hood, and fenders shall be national school bus yellow. The flat top surface of the hood may be nonreflective national school bus yellow; black is not acceptable.

b. Wheels and rims shall be gray or black as received from the wheel manufacturer.

c. The grille may be painted the manufacturer’s standard color unless otherwise specified.

d. On Type A-II chassis, wheels may be of the manufacturer’s standard color.

443(12) Daytime running lights (DRL). Exterior headlamps and parking lamps may be provided with a switch to operate automatically when the vehicle’s ignition is engaged. This switch, if furnished, shall not engage while the starter is engaged. If this switch is designed to provide reduced illumination under normal operating conditions, a means whereby the headlamps and parking lamps can be engaged at full power shall be provided.

443(13) Defroster. See subrules 44.3(22) and 44.4(18).443(14) Drive shaft. The drive shaft shall be protected

by a metal guard or guards around the circumference of the drive shaft to reduce the possibility of its whipping through the floor or dropping to the ground if broken.

443(15) Electrical system. See subrule 44.3(41).443(16) Exhaust system.a. The exhaust pipe, muffler and tailpipe shall be outside

the bus body compartment and attached to the chassis so as not to damage any other chassis component.

b. The tailpipe shall be constructed of a corrosion- resistant tubing material at least equal in strength and durability to 16-gauge steel tubing.

c. Chassis manufacturers shall furnish an exhaust system with tailpipe of sufficient length to extend at least 5 inches beyond the end of the chassis frame to the vertical line of the rear end of the body, but not beyond the rear bumper. The exhaust may exit at the left side or rear of the bus body provided that the exit is no more than 18 inches forward of the front edge of the rear wheelhouse opening. If designed to exit to the left side of the bus, the tailpipe shall extend at least 48.5 inches (51.5 inches if the body is to be 102 inches wide) outboard from the chassis centerline. Final positioning shall result in the exhaust system’s extending to, but not beyond, the body limits on the left side of the bus.

d. On Type A-I chassis greater than 15,000 pounds GVWR, Type C and Type D vehicles, the tailpipe shall not exit beneath a fuel fill or emergency door exit.

e. On Type A-II and Type B chassis of 15,000 pounds GVWR or less, the tailpipe may be furnished with the manufacturer’s standard tailpipe configuration.

f. The exhaust system on a chassis shall be adequately insulated from the fuel system.

g. The muffler shall be constructed of corrosion- resistant material.

h. The exhaust system on vehicles equipped with a power lift unit may be routed to the left of the right frame rail to allow for the installation of a power lift unit on the right side of the vehicle.

i. The tailpipe shall not exit beneath the fuel fill, lift door or emergency door.

443(17) Fenders, front and hood. This subrule does not apply to Type A-I, A-II or D vehicles.

a. The total spread of outer edges of front fenders, measured at the fender line, shall exceed the total spread of front tires when the front wheels are in the straight-ahead position.

b. Front fenders shall be properly braced and free from any body attachment.

c. Chassis sheet metal shall not extend beyond the rear face of the cowl.

d. Front fenders and hood may be of manufacturer’s standard material and construction.

e. The hood shall not require more than 20 pounds of force to open and shall include design features to secure the hood in an open position.

443(18) Frame.a. The frame or equivalent shall have design and

strength characteristics corresponding at least to standard practice for trucks of the same general load characteristics which are used for Ijjghway service.

b. Any secondary manufacturer that modifies the original chassis frame shall guarantee the performance of workmanship and materials resulting from such modification.

c. Extensions of frame lengths are permissible only when alterations are behind the rear hanger of the rear spring or in front of the front hanger of front spring and shall not be for the purpose of extending the wheelbase.

d. Holes in top or bottom flanges or side units of the frame and welding to the frame shall not be permitted except as provided or accepted by the chassis manufacturer.

e. Frame lengths shall be provided in accordance with SBMTC School Bus Design Objectives, August 1996 edition, except where body and chassis manufacturers are the same or have established mutual design criteria for the vehicle.

443(19) Fuels, alternative. An alternative fuel is defined as propane (LPG), compressed natural gas (CNG), liquefied natural gas (LNG), electricity, hydrogen, methanol, ethanol, clean diesel and reformulated gasoline. Vehicles that operate on an alternative fuel shall meet the following requirements:

a. Chassis shall meet all standards of this rule.b. Chassis shall meet all applicable FMVSS standards

including, but not limited to, the fuel system integrity standards of FMVSS 301 or FMVSS 303 and FMVSS 304.

c. Original equipment manufacturers (OEMs) and conversion systems using compressed natural gas (CNG) shall comply with NFPA Standard 52 “Compressed Natural Gas Vehicular Fuel Systems” in effect at the time of installation. Fuel systems using liquefied petroleum gas (LPG) shall comply with the NFPA Standard 58 “Liquefied Petroleum Gases Engine Fuel Systems” in effect at the time of installation.

d. All alternative fuel buses shall travel a loaded range of not less than 200 miles, except those powered by electricity which shall travel not less than 80 miles.

e. Liquefied natural gas (LNG)-powered buses shall comply with NFPA Standard 57, “Liquefied Natural Gas Vehicular-Fueled Systems” and be equipped with an interior/ exterior gas detection system. All natural gas-powered buses shall be equipped with a fire detection and suppression system.

730 FILED IAB 10/7/98

EDUCAHON DEPARTMENT^281](cont’d)

f. All materials and assemblies used to transfer or store alternative fuels shall be installed outside the passenger/ driver compartment.

g. All Type C and D buses using alternative fuel shall meet the same base requirements of this rule for power and grade ability, i.e., at least one published net horsepower per each 185 pounds of GVWR.

h. The total weight shall not exceed the GVWR when loaded to rated capacity.

i. The manufacturer supplying the alternative fuel equipment must provide the owner and operator with adequate training and certification in fueling procedures, scheduled maintenance, troubleshooting, and repair of alternative fuel equipment.

j. All fueling equipment shall be designed specifically for fueling motor vehicles and shall be certified by the manufacturer as meeting all applicable federal, state and industry standards.

k. All on-board fuel supply containers shall meet all appropriate requirements of the ASME code, the DOT regulations, or applicable FMVSS and NFPA standards.

l. All fuel supply containers shall be securely mounted to withstand a static force of eight times their weight in any direction.

m. All safety devices that may discharge to the atmosphere shall be vented to the outside of the vehicle. The discharge line from the safety relief valve on all school buses shall be located in a manner appropriate to the characteristics of the alternative fuel. Discharge lines shall not pass through the passenger compartment. Discharge lines shall be kept clear with flapper-valve or other device which will allow low-pressure discharge but prevent clogging by foreign matter or insects.

n. A positive, quick-acting (% turn), shut-off control valve shall be installed in the gaseous fuel supply lines as close to the fuel supply containers as possible. The controls for this valve shall be placed in a location easily operable from the exterior of the vehicle. The location of the valve control shall be clearly marked on the exterior surface of the bus.

o. A grounding system shall be required for grounding of the fuel system during maintenance-related venting.

p. Automatic engine shut-down systems are not permissible.

443(2®) Fuel system.a. All fuel tanks, including auxiliary fuel tanks, fuel tank

filler pipes, and fuel tank connections shall conform to all applicable federal motor vehicle safety standards at the date of manufacture and shall be installed in accordance with SBMTC School Bus Design Objectives, August 1996 edition.

b. On all Type B, C, and D vehicles, the fuel tank shall conform to Motor Carrier Safety Regulations, Section 393.67, paragraphs (c) through (f), with reference to material and method of construction, leak testing and certification. On Type A-I and A-II vehicles, the fuel tank may be of the manufacturer’s standard construction.

c. On chassis with a wheelbase greater than 170 inches, at least one fuel tank of 60-gallon capacity shall be provided and installed by the manufacturer. Chassis with a wheelbase of 170 inches or less shall be equipped with at least one fuel tank of 30-gallon minimum capacity, as provided and installed by the manufacturer.

d. Fuel tank(s) may be mounted between the chassis frame rails or outboard of the frame rails on either the left or right side of the vehicle by the manufacturer. Tanks shall be

mounted directly to the chassis frame, filled, and vented outside the body, in a location where accidental fuel spillage will not drip or drain on any part of the exhaust system.

e. Fuel filtration shall be accomplished by means of the following:

(1) Gasoline-powered systems—one in-line fuel filter shall be installed between the fuel tank and the engine.

(2) Diesel-powered systems—one engine-mounted fuel filter with water/fuel separator shall be supplied and installed by the engine manufacturer.

f. The actual draw capacity of each fuel tank shall be 83 percent of the tank capacity.

g. Unless specific agreement has been made between the body and chassis manufacturers, fuel tanks and filler spouts shall not be located in spaces restricted by SBMTC School Bus Design Objectives, 1996 edition.

44.3(21) Governor.a. An engine governor is permissible and, where used,

shall be set at the manufacturer’s recommended maximum engine speed. When it is desired to limit road speed, a road speed governor shall be installed.

b. When the engine is remotely located from driver, the governor shall be set to limit engine speed to the maximum revolutions per minute recommended by the engine manufacturer.

44.3(22) Heating system.a. The chassis engine shall have plugged openings for

the purpose of supplying hot water for the bus heating system. The openings shall be suitable for attaching %-inch pipe thread/hose connector.

b. The engine shall be capable of supplying water having a temperature of at least 170 degrees Fahrenheit at a flow rate of 50 pounds per minute at the return end of 30 feet of one-inch inside-diameter automotive hot water heater hose. Engine temperature performance shall be measured in accordance with the School Bus Manufacturer’s Technical Council Standard Number 001—Procedures for Testing and Rating Automotive Bus Hot Water Heating and Ventilating Equipment, July 1996.

c. For Type A-II vehicles with GVWR of 10,000 pounds or less, the chassis manufacturer shall provide a fresh-air front heater and defroster of recirculating hot water type. See also subrules 44.4(12) and 44.4(18).

443(23) Headlamps.a. Buses shall be equipped with a minimum of two head

lamps of proper intensity and fuses or circuit breakers.b. The headlamp switch shall be of adequate ampere ca

pacity to carry the load of the clearance and identification lamps in addition to the headlamps and tail lamps since these will be activated by the same switch.

c. There shall be a manually operated switch for selection of high- or low-beam distribution of the headlamps.

d. The headlight system must be wired separately from the body-controlled solenoid.

e. Daytime running lights (DRL) are permissible in accordance with subrule 44.3(12).

443(24) Horn. Chassis shall be equipped with dual horns of standard make. Each horn must be capable of producing a complex sound in a band of audio frequencies between approximately 250 and 2,000 cycles per second and shall be tested in accordance with Society of Automotive Engineers Standard J377.

443(25) Instruments and instrument panel.a. Chassis shall be equipped with an instrument panel

having, as a minimum, the following instrumentation: (Lights in lieu of gauges are not acceptable except as noted.)

IAB 10/7/98 FILED 731

EDUCATION DEPAKTMENT[281](cont’d)

(1) Speedometer.(2) Odometer with accrued mileage (to seven digits), in

cluding tenths of miles.(3) Voltmeter with graduated scale.(4) Oil pressure gauge.(5) Water temperature gauge.(6) Fuel gauge.(7) Upper-beam headlamp indicator.(8) Air pressure or vacuum gauge, where air or vacuum

brakes are used. A light indicator in lieu of a gauge is permitted on vehicles equipped with hydraulic-over-hydraulic brake system.

(9) Turn signal indicator.(10) Glow-plug indicator light, where appropriate.(11) Tachometer required on vehicles 14,500 pounds

GVWR and greater.b. Gauges shall be displayed as single-gauge installa

tions or as gauges contained in a multifunction instrument display. The multifunction instrument display shall comply, as a minimum, with the following design criteria:

(1) The driver must be able to manually select any dis- playable function of the gauge on a multifunction display whenever desired.

(2) Whenever an out-of-limits condition occurs, which would be displayed on one or more functions of a multifunction gauge, the multifunction gauge controller should automatically display this condition on the instrument cluster. This should be in the form of an illuminated warning light as well as having the multifunction gauge automatically display the out-of-limits indications. Should two or more functions displayed on the multifunction gauge go out of limits simultaneously, the multifunction gauge should automatically sequence between those functions continuously until the condition(s) is corrected.

(3) The use of a multifunction instrument display does not relieve the requirement of audible warning devices as required in this subrule.

c. All instruments shall be easily accessible for maintenance and repair.

d. Instruments and gauges shall be mounted on the instrument panel so each is clearly visible to the driver in a normal seated position in accordance with SBMTC School Bus Design Objectives, August 1996 edition.

e. The instrument panel shall have rheostatically controlled lamps of sufficient candlepower to illuminate all instruments, gauges, and the shift selector indicator for automatic transmission.

443(26) Oil filter. An oil filter with a replaceable element or cartridge shall be of manufacturer’s standard capacity and shall be connected by flexible oil lines if it is not of built-in or engine-mounted design.

443(27) Openings. All openings in the floorboard or fire wall between the chassis and passenger compartment, such as for gearshift selector and parking brake lever, shall be sealed.

443(28) Passenger load.a. Actual gross vehicle weight (GVW) is the sum of the

chassis weight, plus the body weight, plus the driver’s weight, plus the total seated pupil weight.

(1) For purposes of calculation, the driver’s weight is 150 pounds.

(2) For purposes of calculation, the pupil weight is 120 pounds per pupil.

b. Actual gross vehicle weight (GVW) shall not exceed the chassis manufacturer’s GVWR for the chassis, nor shall

the actual weight carried on any axle exceed the chassis manufacturer’s GVWR.

443(29) Power and gradeability. GVWR shall not exceed 185 pounds per published net horsepower of the engine at the manufacturer’s recommended maximum number of revolutions per minute.

443(30) Shock absorbers. Buses shall be equipped with double-action shock absorbers compatible with manufacturer’s rated axle capacity at each wheel location.

443(31) Springs.a. The capacity of springs or suspension assemblies

shall be commensurate with the chassis manufacturer’s GVWR rating.

b. Steel leaf rear springs shall be a progressive rate or multistage design. Front leaf springs shall have a stationary eye at one end and shall be protected by a wrapped.leaf in addition to the main leaf. Parabolic or taper-leaf springs are acceptable.

443(32) Steering gear.a. The steering gear shall be approved by the chassis

manufacturer and designed to ensure safe and accurate performance when the vehicle is operated with maximum load and at maximum speed.

b. If external adjustments are required, the steering mechanism shall be accessible.

c. No changes shall be made in the steering apparatus including addition of spinners or knobs which are not approved by the chassis manufacturer.

d. There shall be a clearance of at least two inches between the steering wheel and cowl, instrument panel, windshield, or any other surface.

e. Power steering is required and shall be of the integral type with integral valves.

f. The steering system shall be designed to provide a means for lubrication of all wear points, if wear points are not permanently lubricated.

g. Tilting and telescopic steering wheels are acceptable.443(33) Sun shield. See subrule 44.4(45).443(34) Throttle.a. The force required to operate the throttle shall not ex

ceed 16 pounds throughout the full range of accelerator pedal travel.

b. A driver-operated, mechanical or electronic variable- speed hand throttle, or a fast idle switch shall be provided on all Type C and D vehicles.

443(35) Tires and rims.a. Tires and rims of the proper size and tires with a load

rating commensurate with the chassis manufacturer’s gross vehicle weight rating shall be provided.

b. Tires shall be of tubeless, steel-belted, radial (standard or low-profile) construction.

c. Multipiece rims are prohibited.d. Dual tires shall be provided on Type A-I, Type B,

Type C, Type D vehicles and on Type A-II school buses exceeding 80 inches in exterior body width.

e. All tires on a vehicle shall be of the same size, and the load range of the tires shall meet or exceed the GVWR as required by FMVSS 120.

f. Spare tires are not required; however, if specified, the spare tire shall be located outside the passenger compartment. The spare tire may not be attached to any part of the rear portion of the body including the emergency door, bumper or roof. If a tire carrier is required, it shall be suitably mounted in an accessible location outside the passenger compartment.

732 FILED LAB 10/7/98


g. Recapped tires are permissible as replacements on equipment now in operation for use on rear wheels only, providing tires are guaranteed by the seller. Recapped tires are not permissible where single rear wheels are used.

h. Tires, when measured on any two or more adjacent tread grooves, shall have a tread groove pattern depth of at least 4/32 of an inch on the front wheels and 2/32 of an inch on the rear wheels. No measurement shall be made where tire bars, humps, or fillets are located. On Type A-I and Type A-II buses with single front and rear wheels, the tread groove pattern depth shall be at least 4/32 of an inch. Where specific measurement points are provided by the tire manufacturer, they shall be utilized in determining tires approved for service. This requirement also applies to buses now in service.

i. Tire pressure equalizing systems for dual rear wheels are acceptable.

j. Traction-assisting devices including hopper-sanders or automatic traction chains may be installed.

443(36) Tow hooks. See subrule 44.3(7).443(37) Transmission.a. Automatic transmissions shall provide for not less

than three forward speeds and one reverse speed. The shift lever, if applicable, shall provide a detent between each gear position when the gear selector quadrant and shift lever are not steering column-mounted.

b. An electronic control or similar device shall be installed to ensure that the automatic transmission cannot accidentally be moved out of the neutral or park gear position.

c. In manual transmissions, second gear and higher shall be synchronized except when incompatible with engine power. A minimum of three forward speeds and one reverse speed shall be provided.

443(38) Turning radius.a. A chassis with a wheelbase of 264 inches or less shall

have a right and left turning radius of not more than 42Vfe feet, curb-to-curb measurement.

b. A chassis with a wheelbase of 265 inches or more shall have a right and left turning radius of not more than 44V2 feet, curb-to-curb measurement.

443(39) Undercoating. Chassis manufacturers or their agents shall coat the undersides of steel or metallic- constructed front fenders with a rustproofing compound for which compound manufacturers have issued notarized certification of compliance to the chassis builder that the compound meets or exceeds all performance and qualitative requirements of Paragraph 3.4 of Federal Specification TT- C-520B, using modified tests.

443(40) Windshield washer/wiper system.a. On Type A-I vehicles, wet-arm-type windshield wip

ers and washer system shall be provided by the chassis manufacturer. On Type A-II vehicles, the windshield wiper/ washer system shall be of the manufacturer’s standards.

b. Windshield wipers shall be controlled by singlespeed, two-speed or variable-speed electric motor(s) meeting federal requirements at the date of manufacture.

c. Wiper control(s) shall be located within easy reach of the driver and shall be designed to move the blades from the driver’s direct view when the wiper control is in the “off’ position.

d. Wiper blades and arms shall be heavy duty and of manufacturer’s standard length for the vehicle.

443(41) Wiring.a. All wiring shall conform to current, applicable SAE-

recommended practices.b. All wiring shall use a standard color or number coding

system or a combination of color and number. Each chassis

shall be delivered with a wiring diagram that illustrates the wiring of the chassis.

c. The chassis manufacturer shall install a readily accessible terminal strip or plug on the body side of the cowl, or in an accessible location in the engine compartment of vehicles designed without a cowl, that shall contain the following terminals for the body connections:

(1) Main 100-amp body circuit.(2) Tail lamps.(3) Right turn signal.(4) Left turn signal.(5) Stop lamps.(6) Backup lamps.(7) Instrument panel lights (rheostat controlled by head

lamp switch).d. Circuits.(1) An appropriate identifying diagram (coded by color

or number or both) for electrical circuits shall be provided to the body manufacturer for distribution to the end user.

(2) The headlight system must be wired separately from the body-controlled solenoid.281—44.4(285) School bus body.

44.4(1) Aisle.a. All emergency doors shall be accessible by a 12-inch

minimum aisle. Aisles shall be unobstructed at all times by any type of barrier, seat, wheelchair or tiedown, unless a flip seat is installed and occupied. A flip seat in the unoccupied (up) position shall not obstruct the 12-inch minimum aisle to any side emergency door.

b. The seat backs shall be slanted sufficiently to give aisle clearance of 15 inches at the top of the seat backs.

44.4(2) Backup warning alarm. An automatic audible alarm shall be installed behind the rear axle and shall comply with the published Backup Alarm Standards (SAE 994), providing a minimum of 97 dBA for rubber-tired vehicles.

44.4(3) Battery compartment.a. Battery(ies) shall be furnished by the chassis

manufacturer unless the body manufacturer agrees to provide battery(ies).

b. Battery(ies) shall be mounted in the body skirt of the vehicle and shall be accessible for convenient servicing from outside the bus. When the battery is mounted as described in 281—44.3(285), the body manufacturer shall securely attach the battery(ies) on a slide-out or swing-out tray with a safety stop to prevent the battery(ies) from dropping to the ground at the outermost extremity of tray travel.

c. The battery compartment shall have minimum dimensions of 25 inches wide, 14 inches deep, and 10 inches high.

d. The battery compartment door or cover shall be hinged at the top, bottom or forward side of the door. When hinged at the top, a fastening device shall be provided which will secure the door in an open position. The door or cover over the compartment opening shall completely cover and, as completely as practical, seal the opening and shall be secured by an adequate and conveniently operated latch or other type fastener to prevent free leakage of the battery contents into the passenger compartment should the vehicle overturn.

e. The top surface area of the inside of the battery compartment (the area likely to come into contact with battery electrical terminals as the result of a blow to, and upward collapse of, the bottom of the battery box in the event of an accident or other event) shall be covered with a rubber matting or other impact-resistant nonconductive material. The matting shall be a minimum of 1/8-inch thick and cover the

IAB 10/7/98 FILED 733


entire top inside surface of the battery box. The matting shall be securely installed to maintain its position at all times.

f. The word “BATTERY” in 2-inch black letters shall be placed on the door covering the battery opening.

44.4(4) Body sizes.a. Type A vehicles may be purchased with manufactur

er’s standard seating capacities when the chassis is manufactured with right- and left-side rear dual tires.

b. Bodies for conventional body-on-chassis vehicles shall be limited to approximate wheelbases as shown in the table for corresponding chassis. All measurements are in inches. Measurements in the table do not apply to forward control, transit or metropolitan vehicles and vehicles rated at 10,000 pounds GVWR or less.

Manufacturer’s Seat Rows Rated Capacity

ApproximateWheelbase

5 29-30 1496 35-36 1497 41-42 1898 47-48 1899 53-54 21710 59-60 23511 65-66 25412 71-72 27413 77-78 274

44.4(5) Front bumper.a. On a Type D school bus, if the chassis manufacturer

does not provide a bumper, it shall be provided by the body manufacturer. The bumper will conform to the standards of 281—44.3(285).

b. An optional energy-absorbing front bumper may be used, provided its design incorporates a self-restoring, energy-absorbing system of sufficient strength to:

(1) Push another vehicle of similar GVWR without permanent distortion to the bumper, chassis, or body; and

(2) Withstand repeated impacts without damage to the bumper, chassis, or body according to the following performance standards:

• 7.5 mph fixed-barrier impact (FMVSS cart and barrier test).

• 4.0 mph comer impact at 30 degrees (Part 581, CFR Title 49).

• 20.0 mph into parked passenger car (Type B, C, and D buses of 18,000 lb GVWR or more).

(3.) The manufacturer of the energy-absorbing system shall provide evidence of conformance to the above standards from an approved test facility capable of performing the above FMVSS tests.

44.4(6) Rear bumper.a. The rear bumper shall be pressed steel channel or

equivalent material, at least 3/16-inch thick, and shall be a minimum of 8 inches wide (high) on Type A-II vehicles and a minimum of 9Vz inches wide (high) on Type A-I, B, C and D buses and shall be of sufficient strength to permit being pushed by another vehicle without permanent distortion. Type A-II vehicles with an overall body width of 80 inches or less may be equipped with the manufacturer’s standard rear bumper.

b. The rear bumper shall be wrapped around the back corners of the bus. It shall extend forward at least 12 inches, measured from the rear-most point of the body at the floor line, and shall be flush-mounted to the body side or protected with an end panel.

c. The rear bumper shall be attached to the chassis frame in such a manner that it may be easily removed. It shall be braced so as to withstand impact from a rear or side impact. It shall be attached so as to discourage hitching of rides.

d. The bumper shall extend at least one inch beyond the rear-most part of body surface measured at the floor line.

e. Additions or alterations to the rear bumper, including the installation of trailer hitches, are prohibited.

f. An optional energy-absorbing rear bumper may be used, provided a self-restoring, energy-absorbing bumper system attached to prevent the hitching of rides is of sufficient strength to:

(1) Permit pushing by another vehicle without permanent distortion to the bumper, chassis, or body.

(2) Withstand repeated impacts without damage to the bumper, chassis, or body according to the following FMVSS performance standards:

• 2.0 mph fixed barrier impact (FMVSS cart and barrier test).

• 4.0 mph comer impact at 30 degrees (Part 581, CFR Title 49).

• 5.0 mph center impact (Part 581, CFR Title 49).(3) The manufacturer of the energy-absorbing system

shall provide evidence of conformance to the above standards from an approved test facility capable of performing the above FMVSS test.

44.4(7) Certification. The body manufacturer shall, upon request, certify to the department of education that the manufacturer’s product(s) meets Iowa standards on items not covered by certification issued under requirements of the National Traffic and Motor Vehicle Safety Act.

44.4(8) Chains, tire. See subrule 44.3(35).44.4(9) Color. See also subrule 44.3(11).a. The school bus body shall be painted national school

bus yellow. (See color standard, Appendix B, 1995 National Standards for School Transportation, available from Missouri Safety Center, Central Missouri State University, Humphreys Suite 201, Warrensburg, Missouri 64093.)

b. The body exterior trim shall be painted glossy black, including the rear bumper, exterior lettering, numbering, body trim, lamp hoods (if any), and emergency door arrow. As an alternative, the rear bumper may be covered with a black retroreflective material as described in subrule 44.4(34). When the bus number is placed on the front or rear bumper, the number shall be yellow.

c. As an option, the roof of the bus may be painted white extending down to within 6 inches above the drip rails on the sides of the body, except that front and rear roof caps shall remain yellow.

44.4(10) Construction.a. The school bus body shall be constructed of materials

certified to be durable under normal operating conditions and shall meet all applicable federal motor vehicle safety standards at the date of manufacture as certified by the bus body manufacturer.

b. Construction shall be reasonably dustproof and watertight.

c. Body joints present in that portion of the Type A-II school bus body furnished exclusively by the body manufacturer shall conform to the performance requirements of FMVSS 221. This does not include the body joints created when body components are attached to components furnished by the chassis manufacturer.

d. A flat floor system featuring no wheelwells and no step-up at the rear of the passenger compartment may be used in accordance with the following:

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(1) The inside height of the body shall remain at least 72 inches, when measured in accordance with subrule 44.4(21) when this option is installed.

(2) If this option utilizes a raised floor that is stepped up behind the driver’s area, the forward edge of the aisle shall have a white stripe and be labeled “Step Up” visible to passengers upon entering the aisle; and a label “Step Down” shall be visible to passengers as they exit the aisle. Minimum headroom of 72 inches shall be maintained at all times.

(3) A flat floor design shall provide for the additional option for a track-mounted seating system using button-type (L track) and a wheelchair securement system meeting Iowa specifications but mounting into the track of the trackseating system. Aisle clearances shall be maintained in accordance with these rules.

44.4(11) Crossing control arms.a. Type A-I, B, and C school buses shall be equipped

with a crossing control arm mounted on the right side of the front bumper, which shall not open more than 90 degrees. This requirement does not apply to Type A-II or Type D vehicles having transit-style design features.

b. The crossing control arm shall incorporate a system of quick-disconnect connectors (electrical, vacuum, or air) at the crossing control arm base unit and shall be of sufficient length for connection to the control panel in the driver’s compartment or shall be easily removed to allow for towing of the bus.

c. The crossing control arm shall meet or exceed SAE Standard J1133.

d. The crossing control arm shall be constructed of non- corrosive or nonferrous material or treated in accordance with the body sheet metal standard. See subrule 44.4(25).

e. There shall be no sharp edges or projections that could cause hazard or injury to students.

f. The crossing control arm shall extend 72 inches from the front bumper when in the extended position.

g. The crossing control arm shall extend simultaneously with the stop arm(s) by means of the stop arm controls.

h. The crossing control arm system shall be designed to operate in extreme weather conditions including freezing rain, snow and temperatures below 0 degrees Fahrenheit without malfunctioning. The crossing control arm itself shall be constructed of a material that will prevent the arm from prematurely extending or from failing to retract due to sustained wind or wind gusts of up to 40 miles per hour.

i. The chassis bumper mounting bracket must be designed for the specific model chassis on which it will be mounted to ensure that the unit mounts flush and operates properly.

j. A pressure-sensitive reverse switch, or slip clutch, or similar device in the base unit must be included to stop the cycle in the event the arm comes in contact with an object or person.

k. A single, cycle-interrupt switch with automatic reset shall be installed in the driver’s compartment and shall be accessible to the driver from the driver’s seat.

44.4(12) Defrosters.a. Defrosting and defogging equipment shall direct a

sufficient flow of heated air onto the windshield, the window to the left of the driver, and the glass in the viewing area directly to the right of the driver to eliminate frost, fog and snow.

b. The defrosting system shall conform to SAE Standards J381 and J382.

c. The defroster and defogging system shall be capable of furnishing heated outside ambient air; however, the part of

the system furnishing additional air to the windshield, entrance door and step well may be of the recirculating air type.

d. Auxiliary fans are required; however, they are not considered defrosting or defogging systems. See also subrule 44.4(53).

e. Portable heaters shall not be used.44.4(13) Doors and exits.a. Service door.(1) The service door shall be heavy-duty power or manu

ally operated under the control of the driver and shall be designed to afford easy release and prevent accidental opening. When a hand lever is used, no parts shall come together to shear or crush fingers. Manual door controls shall not require more than 25 pounds of force to operate at any point throughout the range of operation. A power-operated door must provide for manual operation in case of power failure.

(2) The service door shall be located on the right side of the bus opposite the driver and within the driver’s direct view.

(3) The service door shall have a minimum horizontal opening of 24 inches and a minimum vertical opening of 68 inches. Type A-II vehicles shall have a minimum opening of 1,200 square inches.

(4) The service door shall be of split, sedan, or jackknife type. (Split door includes any sectioned door which divides and opens inward or outward.) If one section of the split door opens inward and the other opens outward, the front section shall open outward.

(5) Lower as well as upper panels shall be of approved safety glass. The bottom of each lower glass panel shall not be more than 10 inches from the top surface of the bottom step. The top of each upper glass panel shall not be more than 3 inches from the top of the door. Type A vehicles shall have an upper panel (windows) of safety glass with an area of at least 350 square inches.

(6) The upper window panels of the service door shall be of insulated double glass. This standard applies to all vehicles equipped with a service door as described in 44.4(13)“a.”

(7) Vertical closing edges on split or folding entrance doors shall be equipped with flexible material to protect children’s fingers. Type A-II vehicles may be equipped with the chassis manufacturer’s standard entrance door.

(8) There shall be no door to the left of the driver on Type B, C or D vehicles. All Type A vehicles may be equipped with the chassis manufacturer’s standard door.

(9) All doors shall be equipped with padding at the top edge of each door opening. Padding shall be at least 3 inches wide and 1 inch thick and shall extend horizontally the full width of the door opening.

(10) Door hinges shall be secured to the body without the use of metal screws.

(11) There shall be no grab handle installed on the exterior of the service door.

(12) A door-locking mechanism may be installed in accordance with subrule 44.4(52).

b. Emergency doors.(1) Emergency door(s) and other emergency exits shall

comply with the requirements of FMVSS 217 and any of the requirements of these rules that exceed FMVSS 217.

(2) The upper portion of the emergency door shall be equipped with approved safety glazing, the exposed area of which shall be at least 400 square inches. The lower portion of the rear emergency doors on Type A-I, B, C and D vehicles shall be equipped with a minimum of 350 square inches of approved safety glazing.

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EDUCATION DEPAKTMENT[281](cont’d)

(3) There shall be no steps leading to an emergency door.(4) The words “EMERGENCY DOOR,” in letters at

least 2 inches high, shall be placed at the top of or directly above the emergency door, or on the door in the metal panel above the top glass, both inside and outside the bus. Pressure-sensitive markings or vinyl material is acceptable for this lettering.

(5) The emergency door(s) shall be equipped with padding at the top edge of each door opening. Padding shall be at least 3 inches wide and 1 inch thick and shall extend the full width of the door opening.

(6) The side emergency door, if installed, must meet the requirements as set forth in FMVSS 217, regardless of its use with any other combination of emergency exits.

(7) There shall be no obstruction higher than 'A inch across the bottom of any emergency door opening.

(8) Vandal lock system may be installed in accordance with subrule 44.4(52).

c. Emergency exit requirements.(1) An emergency exit may include either an emergency

door or emergency exit-type windows. Where emergency exit-type windows are used, they shall be installed in pairs, one on each side of the bus. Type A, B, C, and D vehicles shall be equipped with a total number of emergency exits as follows for tne indicated capacities of vehicles:

• 0 to 42 passenger = 1 emergency exit per side and 1 roof hatch.

• 43 to 78 passenger = 2 emergency exits per side and 2 roof hatches.

• 79 to 90 passenger = 3 emergency exits per side and 2 roof hatches.

These emergency exits are in addition to the rear emergency door or rear pushout window/side emergency door combination required by FMVSS 217. Additional emergency exits installed to meet the capacity-based requirements of FMVSS 217 may be included to comprise the total number of exits specified. All roof hatches shall have design features as specified in subrule 44.4(53).

(2) Side and rear emergency doors and each emergency window exit shall be equipped with an audible warning device.

(3) Roof hatches may be equipped with an audible warning device.

44.4(14) Driver’s compartment.a. The driver’s seat supplied by the body company shall

be a high-back seat with a minimum seat back adjustment of 15 degrees, not requiring the use of tools, and with a head restraint to accommodate a 95th percentile adult male, as defined in FMVSS 208. The driver’s seat shall be secured with nuts, bolts, and washers or flange-headed nuts.

b. The driver’s seat positioning and range of adjustments shall be designed to accommodate comfortable actuation of the foot control pedals by 95 percent of the male and female adult population.

c. See also subrule 44.4(37).d. A driver’s document compartment or pouch shall be

provided. The document compartment or pouch shall measure at least 17 inches by 12 inches by 4 inches. If a document pouch, rather than a covered compartment, is provided, it shall be located on the barrier behind the driver. It shall be constructed of a material of equal durability to that of the covering on the barrier and shall have a lid or cover with a latching device to hold the cover or lid closed.

44.4(15) Emergency equipment.a. All emergency equipment including first-aid kit, fire

extinguisher and triangular warning devices shall be located within the driver’s compartment.

b. Whenever the emergency equipment is mounted within an enclosed compartment, the compartment shall be plainly labeled to indicate the location of equipment.

c. All emergency equipment shall be securely mounted so that in the event the bus is overturned, this equipment is held in place.

d. Fire extinguishers shall meet the following requirements:

(1) The bus shall be equipped with at least one five-pound capacity, UL-approved, pressurized dry chemical fire extinguisher complete with hose. The extinguisher shall be located in the driver’s compartment readily accessible to the driver and passengers and shall be mounted in a heavy-duty automotive bracket so as to prevent accidental release in case of a crash or in the event the bus overturns.

(2) A calibrated or marked gauge shall be mounted on the extinguisher to indicate the amount of pressure in the extinguisher and shall be easily read without moving the extinguisher from its mounted position. Plastic discharge heads and related parts are not acceptable.

(3) The fire extinguisher shall have a total rating of 2A-10BC or greater. The operating mechanism shall be sealed with a type of seal which will not interfere with the use of the fire extinguisher.

(4) All fire extinguishers shall be inspected and maintained in accordance with the National Fire Protection Association.

(5) Each extinguisher shall have a tag or label securely attached that indicates the month and year the extinguisher received its last maintenance and the identity of the person performing the service.

e. First-aid kit.(1) The bus shall have a removable moistureproof and

dustproof first-aid kit in an accessible place in the driver’s compartment. It shall be properly mounted and identified as a first-aid kit. The location for the first-aid kit shall be marked.

(2) Multipurpose and passenger-type vehicles used as school buses shall be equipped with a ten-unit first-aid kit containing the following items:

1 1-inch adhesive compress.1 2-inch bandage compress.1 4-inch bandage compress.1 3-inch x 3-inch plain gauze pad.1 gauze roller bandage (4-inch X 5 yards).1 plain absorbent gauze compress (2 piece, 18-inch X

36-inch).1 plain absorbent gauze compress (24-inch X 72-inch).2 triangular bandages.1 wire splint (instant splints may be substituted).(3) A first-aid kit containing the following items is re

quired on all Type A, B, C and D school buses:2 1-inch x 2'/2-yard adhesive tape rolls.24 3-inch x 3-inch sterile gauze pads.100 3/4-inch x 3-inch adhesive bandages.12 2-inch bandage compresses.12 3-inch bandage compresses.2 2-inch x 6-foot sterile gauze roller bandages.2 40-inch x 36-inch x 54-inch nonsterile triangular ban

dages with two safety pins.3 36-inch X 36-inch sterile gauze pads.3 sterile eye pads.1 pair latex gloves.1 mouth-to-mouth airway.

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f. Body fluid cleanup kit. Each bus shall be equipped with a disposable, sealed body fluid cleanup kit in a disposable container which includes the following items:

(1) An EPA-registered liquid germicide (tuberculocidal) disinfectant;

(2) A fully disposable wiping cloth;(3) A water-resistant spatula;(4) Step-by-step directions;(5) Absorbent material with odor counteractant;(6) Two pairs of gloves (latex);(7) One package towelettes;(8) A discard bag (nonlabeled paper bag with a plastic

liner and a twist tie). This bag shall be approximately 4 inches by 6 inches by 14 inches, and shall be of a nonsafety color (i.e., the bag shall not be red, orange, or yellow). The kit shall be mounted by a method that will retain it in place during normal school bus operation and shall be removable without the use of tools. The kit container shall be sealed with a breakable, nonreusable seal and must be accessible to the driver.

g. Triangular warning devices. Each school bus shall contain at least three reflectorized triangle road warning devices mounted in an accessible place. These devices must meet requirements in FMVSS 125.

n. Emergency equipment may be mounted in an enclosed compartment provided the compartment is labeled in not less than one-inch letters, stating the piece(s) of equipment contained therein.

44.4(16) Floor insulation and covering.a. The floor structure of Type A-I, B, C and D school

buses shall be covered with an insulating layer of either a 5-ply nominal 5/8-inch-thick plywood, or a material of equal or greater strength and insulation R-value, having properties equal to or exceeding exterior-type softwood plywood, C-D grade as specified in standards issued by the United States Department of Commerce. All edges shall be sealed.

b. Type A-II buses may be equipped with nominal V^-inch-thick plywood meeting the above requirements.

c. The floor in the under-seat area, including tops of wheelhousing, driver’s compartment and toetoard, shall be covered with rubber floor covering or the equivalent, having a minimum overall thickness of 0.125 inch. The floor covering of the driver’s area on all Type A buses may be the manufacturer’s standard flooring and floor covering.

d. The floor covering in aisles shall be of aisle-type rubber or equivalent and shall be wear-resistant and ribbed. Minimum overall thickness shall be 0.187 inch measured from tops of ribs.

e. Floor covering must be permanently bonded to the floor and must not crack when subjected to sudden changes in temperature. Bonding or adhesive material shall be waterproof and shall be of a type recommended by the manufacturer of the floor-covering material. All seams must be sealed with waterproof sealer.

f. On Type A-I, B, C and D buses, access to the fuel tank sending unit shall be provided. Any access opening in the body shall be capable of being sealed with a screw-down plate from within the body.

g. Cove molding shall be used along the sidewalls and rear comers. All joints or seams in the floor covering shall be covered with nonferrous metal stripping or stripping constructed of material exhibiting equal durability and sealing qualities.

44.4(17) Fuel fill opening and cover. Where an opening in the school bus body skirt is needed for access to the fuel fill cap, the opening shall be large enough to permit filling

the fuel tank without the need for special fuel nozzle adapters, a funnel, or other device. The opening shall be equipped with a forward hinged cover held closed by a spring or other conveniently operated device.

44.4(18) Heating and air conditioning.a. Each heater shall be hot-water or combustion type.b. If only one heater is used, it shall be a fresh-air or

combination fresh-air and recirculation type.c. If more than one heater is used, additional heaters

may be recirculating air type.d. Front heaters are required based on the following ve

hicle types:(1) Type A vehicles shall be equipped with front heaters

of manufacturer’s standard design.(2) Type B and C vehicles shall be equipped with one left

front heater of fresh-air or combination fresh-air and recirculating type and one right front heater of recirculating type.

(3) Type D vehicles shall be equipped with a front heating system having a rating of at least 90,000 BTUs capable of heating the right and left sides of the driver compartment forward of the passenger seating area.

e. At least one heater, or a combination of heaters with a combined rating of 80,000 BTUs, shall be of the recirculating type and shall be located rear of the wheel well. Type A vehicles less than 14,500 pounds GVWR shall be equipped with a minimum combined heater rating of 35,000 BTUs.

f. The heating system shall be capable of maintaining bus interior temperatures as specified in SAE test procedure J2233.

g. Auxiliary fuel-fired heating systems are permitted, provided they comply with the following:

(1) The auxiliary heating system shall utilize the same type of fuel as specified for the vehicle engine.

(2) Heater(s) may be direct hot air or connected to the engine’s coolant system.

(3) An auxiliary heating system, when connected to the engine’s coolant system, may be used to preheat the engine coolant or preheat and add supplementary heat to the bus’s heating system.

(4) Auxiliary heating systems must be installed pursuant to the manufacturer’s recommendations and shall not direct exhaust in a manner that will endanger bus passengers.

(5) Auxiliary heating systems which operate on diesel fuel shall be capable of operating on #1, #2 or blended diesel fuel without the need for system adjustment.

(6) The auxiliary heating system shall be low voltage.(7) Auxiliary heating systems shall comply with all appli

cable federal motor vehicle safety standards including FMVSS 301 as well as SAE test procedures.

h. All heaters installed by body manufacturers shall bear a nameplate that indicates the heater rating in accordance with the School Bus Manufacturers Technical Committee’s “SBMTC-001 Procedure for Testing and Rating Automotive Bus Hot Water Heating and Ventilating Equipment, July 1996,” National Association of State Directors of Pupil Transportation Services, 116 Howe Drive, Dover, Delaware 19901. The plate shall be affixed by the heater manufacturer and shall constitute certification that the heater performance is as shown on the plate.

i. Heater hoses shall be adequately supported to guard against excessive wear due to vibration. The hoses shall not dangle or rub against the chassis or any sharp edges and shall not interfere with or restrict the operation of any engine function. Heater hoses shall conform to SAE Standard J20c. Heater lines on the interior of the bus shall be shielded to prevent scalding of the driver or passengers.

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EDUCATION DEPARTMENT[281 ](cont’d)

j. Each hot water system installed by a body manufacturer shall include one shut-off valve in the pressure line and one shut-off valve in the return line with both valves at the engine in an accessible location, except that on all Type A and B buses, the valves may be installed in another accessible location.

k. There shall be a water flow regulating valve installed in the pressure line for convenient operation by the driver while seated.

l. All combustion heaters shall be in compliance with federal motor carrier safety regulations.

m. Accessible bleeder valves shall be installed in an appropriate place in the return lines of body company-installed heaters to remove air from the heater lines.

n. Access panels shall be provided to make heater motors, cores, and fans readily accessible for service. An outside access panel may be provided for the driver’s heater.

o. Air-conditioning systems may be installed in accordance with the following:

(1) Evaporator cases, lines and ducting (as equipped) shall be designed so that all condensation is effectively drained to the exterior of the bus below floor level under all conditions of vehicle movement without leakage on any interior portion of the bus.

(2) Any evaporator or ducting system shall be designed and installed so as to be free of injury-producing projections or sharp edges. Installation shall not reduce compliance with any federal motor vehicle safety standard applicable to the school bus. Ductwork shall be installed so that exposed edges face the front of the bus and do not present sharp edges.

(3) Any evaporators used must be copper-cored (aluminum or copper fins acceptable), except that the front evaporator, if provided by a Type A chassis manufacturer, may be aluminum-cored.

(4) Air intake for any evaporator assembly(ies) except for the front evaporator of a Type A bus shall be equipped with replaceable air filter(s) accessible without disassembly of the evaporator case.

(5) On buses equipped for the transportation of persons with disabilities, the evaporator and ducting shall be placed high enough so that they will not obstruct existing or potential occupant securement shoulder strap upper attachment points. This clearance shall be provided along the entire length of the passenger area on both sides of the bus interior to allow for potential retrofitting of new wheelchair positions and occupant securement devices throughout the bus.

(6) The total system shall be warranted, including parts and labor, for at least two years and shall include, but not be limited to, compressor mounting bracketry and hardware and any belts which, directly or indirectly, drive the compressors). Air-conditioning compressor applications must be approved in writing by the chassis engine manufacturer, stating that the installations will not void or reduce the engine manufacturer’s warranty or extended service coverage liabilities in any way.

(7) All components requiring periodic servicing must be readily accessible for servicing.

(8) Parts and service manuals shall be provided for the entire system including, but not limited to, compressor(s), wiring (includes wiring diagram), evaporators, condensers, controls, hoses and lines.

(9) Electrical requirements for the air-conditioning system shall be provided to the customer prior to vehicle purchase or, in the case of an after-purchase installation, prior to installing the air-conditioning system to ensure that adequate

electrical demands imposed by the air-conditioning system are capable of being met.

44.4(19) Hinges. All exposed metal passenger-door hinges subject to corrosion shall be designed to allow lubrication. All passenger-door hinges shall be securely bolted to the bus body. Metal screws are not acceptable.

44.4(20) Identification.a. The body shall bear the words “SCHOOL BUS” in

black letters at least eight inches high on both front and rear of the body or on attached signs. The lettering shall be placed as high as possible without impairment of its visibility. The lettering shall conform to Series B of Standard Alphabets of Highway Signs. “SCHOOL BUS” lettering shall have a reflective background or, as an option, may be illuminated by backlighting.

b. The bus, whether school-owned or privately owned, shall have displayed at the beltline on each side of the vehicle the official name of the school in black standard unshaded letters at least five inches, but not more than seven inches high.

Examples:(1) Blank community school district.(2) Blank independent school district.(3) Blank consolidated school district.If there is insufficient space due to the length of the name

of the school district, the words community, independent, consolidated, and district may be abbreviated. If, after these abbreviations, there is still insufficient space available, the words “community school district” may be replaced by the uppercase letters “CSD” upon prior approval by the school transportation consultant of the Iowa department of education.

c. The incorporated names of cities located within an officially reorganized school district may be placed on either side of the bus in a single line situated beneath the official school district name. The lettering shall not exceed two inches in height and shall be black. This paragraph shall apply only when the names of the cities are not included in the official school district name on the beltline.

d. The words “RATED CAPACITY,” along with the appropriate number indicating the rated pupil seating capacity of the bus, shall be printed to the left of the entrance door, at least six inches below the name of the school district and on the bulkhead of the bus above the right windshield. The letters shall be black in color and at least two inches in height. The word “CAPACITY” may be abbreviated and shown as “CAP.” where necessary.

e. The number of the bus shall be printed in not less than 5-inch or more than 8-inch black letters, except as otherwise noted in this subrule, and shall be displayed on both sides, the front and the rear of the bus. The location of the bus number is at the discretion of the vehicle owner except that the number:

(1) Shall be located to the rear of the service door not more than 36 inches from the ground on the right side of the bus and at the same respective position on the left side of the bus.

(2) Shall be yellow if located on either the front or rear bumper.

(3) May be placed on the roof of the bus at a position representing the approximate lateral and longitudinal midpoint of the bus. The bus number shall be black and shall measure not less than 24 inches in length.

(4) Shall not be located on the same line as the name of the school district on either side of the bus, on the emergency

738 FILED IAB 10/7/98


door, or in a location that will interfere with the words “SCHOOL BUS.”

f. Buses privately owned by individuals or a company shall also bear the name of the owner, followed by the word “OWNER” in not more than 2-inch characters printed approximately six inches below the bus capacity on the right side of the bus.

g. Symbols, characters or letters, for the purpose of vehicle or route identification by students, may be displayed in the lower, split-sash, glass portion of the third passenger window from the front on the service entrance side of the bus. Such symbols, characters or lettering, if used, shall not exceed 36 square inches. This requirement applies to all school buses regardless of date of purchase.

h. Symbols identifying the bus as equipped for or transporting students with special needs may be displayed. See subrule 44.5(7).

i. The words “UNLAWFUL TO PASS WHEN LIGHTS FLASH” shall be displayed on the rear emergency door of the bus between the upper and lower window glass sections. The letters shall be black and not less than six inches in height. If there is not sufficient space on the emergency door, letter size may be reduced upon approval of the department of education.

j. Pressure-sensitive markings of vinyl material may be used for the above lettering in lieu of painting.

k. Any lettering, including the name of the school’s athletic team(s), numbers, drawings, bumper stickers or characters other than the bus manufacturer’s registered trademarks or those specifically noted in paragraphs “a” through “j” above are prohibited.

44.4(21) Inside height. Inside body height shall be 72 inches or more, measured metal to metal, at any point on the longitudinal centerline from the front vertical bow to the rear vertical bow. Inside body height of Type A-II buses shall be 62 inches or more.

44.4(22) Insulation.a. Thermal insulation in the ceiling and walls shall be

fire-resistant, UL-approved, and approximately 1’/2-inch thick with a minimum R-value of 5.5. Insulation shall be installed to prevent sagging.

b. Roof bows shall be insulated in accordance with 44.4(22)“a.”

44.4(23) Interior.a. The interior of the bus shall be free of all unnecessary

projections, including luggage racks and attendant handrails, to minimize the potential for injury. This standard requires inner lining on ceilings and walls. If the ceiling is constructed to contain lapped joints, the forward panel shall be lapped by the rear panel and exposed edges shall be beaded, hemmed, flanged, or otherwise treated to minimize sharp edges. Buses may be equipped with a storage compartment for tools, tire chains, and tow chains. See also subrule 44.4(44).

b. Radio speakers are permitted in the passenger compartment area only. No radio speaker, other than that which is necessary for use with two-way communication equipment, shall be located within the driver’s compartment area. All radio speakers shall be flush-mounted with the roof or side panels and shall be free of sharp edges which could cause injury to a child.

c. The driver’s area forward of the foremost padded barriers shall permit the mounting of required safety equipment and vehicle operation equipment.

d. Every school bus shall be constructed so that the noise level taken at the ear of the occupant nearest to the primary

vehicle noise source shall not exceed 85 dBA when tested according to the procedure found in Appendix B, National Standards for School Buses and School Bus Operations, 1995 Revised Edition, Missouri Safety Center, Central Missouri State University, Humphreys Suite 201, Warrensburg, Missouri 64093.

e. An access panel must be provided, front and rear, so lights and wiring for the 8-light warning system may be repaired or serviced without removing ceiling panels.

f. Ceiling material designed to reduce noise within the driver compartment or passenger compartment may be installed by the manufacturer.

44.4(24) Lamps and signals.a. All lamps and lamp components shall meet or exceed

applicable standards established by the Society of Automotive Engineers (SAE) and the American Association of Motor Vehicle Administrators (AAMVA).

b. Clearance lamps. The body shall be equipped with two amber lamps at the front and two red clearance lamps at the rear mounted at the highest and widest portion of the body.

c. Identification lamps. The bus shall be equipped with three amber identification lamps on the front and three red identification lamps on the rear. Each group shall be evenly spaced not less than 6 or more than 12 inches apart along a horizontal line near the top of the vehicle.

d. Intermediate side marker lamps. On all buses over 30 feet long, one amber side lamp is required on each side, located midway between the front and rear clearance lamps.

e. Stop/tail (brake) lamps. Buses shall be equipped with four combination, red, stop/tail lamps meeting SAE specifications. Each lamp shall have double filament lamp bulbs that are connected to the headlamp and brake-operated stop lamp circuits. These should be positioned as follows:

(1) Two combination lamps with a minimum diameter of 7 inches or, if a shape other than round, a minimum of 38 square inches of illuminated area shall be mounted on the rear of the bus just to the inside of the turn signal lamps.

(2) Two combination lamps with a minimum diameter of 4 inches or, if a shape other than round, a minimum of 12 square inches of illuminated area shall be placed on the rear of the body between the beltline and the floor line. The rear license plate lamp may be combined with one lower tail lamp. Stop lamps shall be activated by the service brakes and shall emit a steady light when illuminated. Type A-II buses with bodies supplied by the chassis manufacturer may have the manufacturer’s standard stop and tail lamps.

f. Items described in paragraphs “b,” “c,” “d,” and “e” shall be connected to the headlamp switch.

g. Backup lamps. The bus body shall be equipped with two white rear backup lamps. Type A vehicles shall be equipped with lamps at least 4 inches in diameter or, if a shape other than round, a minimum of 13 square inches of illuminated area. Type B, C and D vehicles shall be equipped with lamps of at least 7-inch diameter or of equal surface area if a shape other than round. All lamps shall have a white or clear lens and shall meet SAE specifications. If backup lamps are placed on the same line as the brake lamps and turn signal lamps, they shall be to the inside.

h. Interior lamps. Interior lamps shall be provided which adequately illuminate the interior aisle and the step well. Step well lights shall be illuminated by a service door- operated switch, to illuminate only when headlights and clearance lights are on and the service door is open. In addition, the following interior lamps shall be provided:

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(1) Supervisor’s light. The rearmost ceiling light or a separate light may be used as a supervisor’s light and shall be activated by a separate switch controlled by the driver.

(2) Driver’s area dome light. This light shall have a separate switch controlled by the driver and shall illuminate the driver’s compartment area.

(3) Body instrument panel lights shall be controlled by an independent rheostat switch.

(4) On buses equipped with a monitor for the front and rear lamps of the school bus, the monitor shall be mounted in full view of the driver. If the full circuit current passes through the monitor, each circuit shall be protected by a fuse or circuit breaker against any short circuit or intermittent shorts.

i. License plate lamp. The bus shall be equipped with a rear license plate illuminator. This lamp may be combined with one of the tail lamps.

j. Reflectors. Reflectors shall be securely attached to the body with sheet metal screws or other method having equivalent securement properties and installed in accordance with the requirements of FMVSS 108; however, the vehicle shall, as a minimum, be equipped with the following:

(1) Two amber reflectors, one on each side at the lower front and comer of the body approximately at floor level and back of the door on the right side, and at a similar location on the left side. For all buses over 30 feet long, an additional amber reflector is required on each side at or near the midpoint between the front and rear side reflectors.

(2) Four red reflectors, one at each side at or near the rear and two on the rear, one at each side.

(3) Reflectors are to be mounted at a height not more than 42 inches or less than 30 inches above the ground on which the vehicle stands.

k. Warning signal lamps.(1) Buses shall be equipped with two red lamps at the rear

of the vehicle and two red lamps at the front of the vehicle.(2) In addition to the four red lamps described above, four

amber lamps shall be installed so that one amber lamp is located near each red signal lamp, at the same level, but closer to the vertical centerline of the bus. The system of red and amber signal lamps shall be wired so that amber lamps are energized manually and the red lamps are automatically energized, with amber lamps being automatically deenergized, when the stop signal arm is extended or when the bus service door is opened. An amber pilot light and a red pilot light shall be installed adjacent to the driver controls for the flashing signal lamp to indicate to the driver which lamp system is activated.

(3) The area around the lens of each alternately flashing signal lamp and extending outward approximately 3 inches shall be black. In installations where there is no flat vertical portion of body immediately surrounding the entire lens of the lamp, there shall be a circular or square band of black approximately 3 inches wide, immediately below and to both sides of the lens, on the body or roof area against which the signal lamp is seen from a distance of 500 feet along the axis of the vehicle. Black visors or hoods, with a minimum depth of 4 inches, may be provided.

(4) Red lamps shall flash at any time the stop signal arm is extended.

(5) All flashers for alternately flashing red and amber signal lamps shall be enclosed in the body in a readily accessible location.

(6) Strobe lights are permissible.l. Turn signal lamps.

(1) The bus body shall be equipped with amber rear turn signal lamps that meet SAE specifications and are at least 7 inches in diameter or, if a shape other than round, a minimum of 38 square inches of illuminated area. These signal lamps must be connected to the chassis hazard warning switch to cause simultaneous flashing of turning signal lamps when needed as a vehicular traffic hazard warning. Turn signal lamps are to be placed as far apart as practical and their centerline shall be approximately 8 inches below the rear window. Type A-II conversion vehicle lamps must be at least 21 square inches in lens area and in the manufacturer’s standard color.

(2) Buses shall be equipped with amber side-mounted turn signal lights. The turn signal lamp on the left side shall be mounted rearward of the stop signal arm and the turn signal lamp on the right side shall be mounted rearward of the service door.

m. A white flashing strobe light rated for outdoor use and weather-sealed shall be installed on the roof of the bus not less than one foot or more than ten feet from the rear center of the bus. The strobe light shall be located to the rear of the rearmost emergency roof hatch to prevent the roof hatch from diminishing the effectiveness of the strobe light. In addition:

(1) The strobe light shall have a single clear lens emitting light 360 degrees around its vertical axis and may not extend above the roof more than the maximum legal height.

(2) The strobe light must be controlled by a separate switch with an indicator light which when lit will indicate that the strobe light is turned on.

(3) The light shall be used only in fog, rain, snow, or at times when visibility is restricted.

(4) Each model strobe shall be approved by the motor vehicle division, Iowa department of transportation.

44.4(25) Metal treatment.a. All metal used in construction of the bus body shall be

zinc-coated or aluminum-coated or be treated by an equivalent process before the bus is constructed. Included are such items as structural members, inside and outside panels, door panels and floor sills. Excluded are such items as door handles, grab handles, interior decorative parts and other interior plated parts.

b. All metal parts that will be painted shall be, in addition to above requirements, chemically cleaned, etched, zinc-phosphate coated and zinc-chromate or epoxy primed or conditioned by an equivalent process.

c. In providing for these requirements, particular attention shall be given lapped surfaces, welded connections of structural members, cut edges, punched or drilled hole areas in sheet metal, closed or box sections, unvented or undrained areas, and surfaces subjected to abrasion during vehicle operation.

d. As evidence that the above requirements have been met, samples of materials and sections used in construction of the bus body subjected to a 1,000-hour salt spray test as provided for in the latest revision of ASTM Standard B-117 shall not lose more than 10 percent of material by weight.

44.4(26) Mirrors.a. The interior mirror shall be either clear view lami

nated glass or clear view glass bonded to a backing that retains the glass in the event of breakage. The mirror shall have rounded corners and protected edges. All Type A buses shall have a minimum of a 6-inch x 16-inch mirror; and Type B, C, and D buses shall have a minimum of a 6-inch x 30-inch mirror.

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EDUCAHON DEPARTMENT[281](cont’d)

b. Each school bus shall be equipped with exterior mirrors meeting the requirements of FMVSS 111. Mirrors shall be easily adjustable, but shall be rigidly braced so as to reduce vibration.

c. Heated right- and left-side rearview mirrors shall be provided.

d. Systems offering a design feature permitting the driver to remotely adjust mirrors from the driver’s compartment may be utilized.

44.4(27) Mounting.a. The chassis frame shall support the rear body cross

member. Except where chassis components interfere, the bus body shall be attached to the chassis frame at each main floor sill in such manner as to prevent shifting or separation of the body from the chassis under severe operating conditions.

b. Insulation material shall be placed at all contact points between the body and chassis frame and shall be attached to the chassis frame or body so that it will not move under severe operating conditions.

c. The body front shall be attached and sealed to the chassis cowl to prevent entry of water, dust, and fumes through the joint between the chassis cowl and body.

d. The refurbishing or reconditioning of a body-on- chassis school bus is restricted to the repair and replacement of school bus body or chassis components. The original body and chassis, as certified by the original equipment manufacturers, shall be retained as a unit upon completion of repairs. It is not permissible to exchange or interchange school bus bodies and chassis. The refurbisher or reconditioner shall certify that the vehicle meets all state and federal construction standards in effect as of the date of manufacture and shall provide suitable warranty on all work performed. See also subrule 44.7(1).

44.4(28) Mud flaps.a. Mud flaps or guards are required and shall be pro

vided and installed by the body manufacturer or manufacturer’s representative for both front and rear wheels.

b. Front mud flaps or guards shall be of adequate size to protect body areas vulnerable to road debris from wheels and shall be mounted so as to be free of wheel movement at all times.

c. Rear mud flaps or guards shall be comparable in size to the width of the rear wheelhousing and shall reach within approximately nine inches of the ground when the bus is empty. They shall be mounted at a distance from the wheels to permit free access to spring hangers for lubrication and maintenance and to prevent their being pulled off while the vehicle is in reverse motion or damaged by tire chains.

44.4(29) Overall length. Overall length of the bus shall not exceed the maximum allowed by the Iowa department of transportation.

44.4(30) Overall width. Overall width of the bus shall not exceed the maximum allowed by the Iowa department of transportation.

44.4(31) Passenger securement. See subrule 44.4(39).44.4(32) Public address system. A public address system

permitting interior or exterior communication with passengers, or both types of communication, may be installed.

44.4(33) Radio system. In the interest of safety for the children transported and the effective management of the school transportation program, a two-way radio communication system is highly recommended.

44.4(34) Retroreflective material.a. Retroreflective material shall be provided in accor

dance with the following:

(1) The rear of the bus body shall be marked with strips of reflective NSBY material to outline the perimeter of the back of the bus using material which conforms with the “Retroreflective Sheeting Daytime Color Specification Proposal” of Appendix B, 1995 National Standards for School Transportation, Central Missouri State University, Humphreys Suite 201, Warrensburg, Missouri 64093. TTie perimeter marking of rear emergency exits in accordance with FMVSS 217 and the use of reflective “SCHOOL BUS” signs partially accomplish the objective of this requirement. To complete the perimeter marking of the back of the bus, strips of at least l3/4-inch reflective NSBY material shall be applied horizontally above the rear windows and above the rear bumper, extending from the rear emergency exit perimeter marking outward to the left and right rear comers of the bus; and vertical strips shall be applied at the comers connecting these horizontal strips.

(2) “SCHOOL BUS” signs, if not of lighted design, shall be marked with reflective NSBY material comprising background for lettering of the front and rear “SCHOOL BUS” signs.

(3) Sides of the bus body shall be marked with reflective NSBY material at least 1% inches in width, extending the length of the bus body and located within six inches above or below the floor line or on the beltline.

b. Front and rear bumpers may be marked diagonally 45 degrees down to centerline of pavement with 2-inch +/- Vi inch wide strips of noncontrasting reflective material. This material shall appear black during daylight hours; however, it will be seen as a reflective material during periods of reduced light conditions when a direct light source strikes the material.

44.4(35) Rub rails.a. One mb rail located on each side of the bus approxi

mately at seat level shall extend from the rear side of the entrance door completely around the bus body (except for emergency door or any maintenance access door) to the point of curvature near the outside cowl on the left side.

b. One mb rail located approximately at floor line shall cover the same longitudinal area as the upper mb rail, except at wheelhousings, and shall extend only to radii of the right and left rear comers.

c. Both mb rails shall be attached at each body post and all other upright stmctural members.

d. Both mb rails shall be four inches or more in width in their finished form, shall be of 16-gauge steel or suitable material of equivalent strength, and shall be constructed in corrugated or ribbed fashion.

e. Both mb rails shall be applied to outside body or outside body posts. Pressed-in or snap-on mb rails do not satisfy this requirement. For Type A-II vehicles using the chassis manufacturer’s body, or for Type A-I, B, C and D buses using rear luggage or rear engine compartment, mb rails need not extend around rear corners.

f. There shall be a mb rail or equivalent bracing located horizontally at the bottom edge of the body side skirts.

44.4(36) Driver’s seat.a. Type A school buses shall be equipped with a driver’s

seat of manufacturer’s standard design meeting federal motor vehicle safety standards.

b. All Type B, C, and D school buses shall have a driver’s seat equipped with a one-piece high back designed to minimize the potential for head and neck injuries in rear impacts, providing minimum obstruction to the driver’s view of passengers and meeting applicable requirements of Federal Motor Vehicle Safety Standard 222. The height of the seat

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EDUCATION DEPAKTMENT[281 ](cont’d)

back shall be sufficient to provide the specified protection for up to a 95th percentile adult male, as defined in FMVSS 208. The seat shall be centered behind the steering wheel with a backrest a minimum distance of 11 inches behind the steering wheel. The seat shall be securely mounted to the floor of the bus with Grade 5 or better bolts and shall be secured with locking nuts or lock washers and nuts.

c. All air brake-equipped school buses may be equipped with an air suspension driver’s seat meeting the following additional requirements:

(1) The air control for height adjustment shall be within easy reach of the driver in the seated position.

(2) The seat cushion shall be a minimum of 19'/2 inches wide, shall be fully contoured for maximum comfort, and shall have a minimum of four adjustment positions to allow changes in seat bottom angle.

(3) The backrest shall include adjustable lumbar support.(4) The seat shall have a minimum of 7 inches of forward

and rearward travel, adjustable with the driver in the seated position. This requirement applies to the seat mechanism. Reduction of this requirement to no less than 4 inches due to barrier placement on 89-passenger capacity buses will be acceptable.

(5) The seat shall have a minimum of 4 inches of up and down travel.

(6) Seat back shall include adjustability of tilt angle.(7) All adjustments shall be by fingertip controls without

the use of tools.(8) The seat shall comply with all applicable federal mo

tor vehicle safety standards.44.4(37) Driver’s seat belt/shoulder harness system.

Buses shall be equipped with a Type 2 lap belt/shoulder harness seat belt assembly for the driver. The design shall incorporate a fixed female push-button type latch on the right side at seat level, and a male locking bar tongue on the left retracting side. The assembly shall be equipped with a single, dualsensitive emergency locking retractor (ELR) for the lap and shoulder belt. This system shall be designed to minimize “cinching down” on air sprung and standard seats. The lap portion of the belt shall be anchored or guided at the seat frame by a metal loop or other such device attached to the right side of the seat to prevent the driver from sliding sideways out of the seat. There shall be a minimum of 7 inches of adjustment of the “D” loop of the driver’s shoulder harness. Shoulder belt tension shall be no greater than is necessary to provide reliable retraction of the belt and removal of excess slack. The seat belt assembly and anchorage shall meet applicable federal motor vehicle safety standards.

44.4(38) Seats and crash barriers.a. All seats, component parts, and seat anchorage shall

comply with applicable federal requirements as of the date of their manufacture.

b. All seats shall have a minimum depth of 15 inches.c. In determining the rated seating capacity of the bus,

allowable average rump width shall be:(1) Thirteen inches where a three-three seating plan is

used.(2) Fifteen inches where a three-two seating plan is used.d. The following knee room requirements shall apply to

all school bus bodies:(1) Knee room shall meet the requirements of FMVSS

222 and shall be measured, on Type A-I, B, C and D school buses, at the center of the transverse line of the seat and at seat cushion height. The distance from the front of a seat back (cushion) to the back surface of the cushion on the preceding seat shall be not less than 24 inches. The seat uphol

stery may be placed against the seat cushion padding, but without compressing the padding, before the measurement is taken.

(2) On Type A-II school buses, seat spacing shall be of the manufacturer’s standard spacing.

e. All seats shall be forward-facing with seat frames attached to the seat rail with two bolts, washers and nuts or flange-headed nuts. Each seat leg shall be secured to the floor by a minimum of two bolts, washers, and nuts. Flange- head nuts may be used in lieu of nuts and washers, or seats may be track-mounted in conformance with FMVSS 222. This information shall be on a label permanently affixed to the bus.

f. Jump seats or portable seats are prohibited; however, use of a flip seat at any side emergency door location in conformance with FMVSS 222, including required aisle width to side door, is acceptable. Any flip seat shall be free of sharp projections on the underside of the seat bottom. The underside of the flip-up seat bottoms shall be padded or contoured to reduce the possibility of snagged clothing or injury during use. Flip seats shall be constructed to prevent passenger limbs from becoming entrapped between the seat back and the seat cushion when in an upright position. The seat cushion shall be designed to rise to a vertical position automatically when not occupied.

g. Seats, seat back cushions, and restraining barriers shall be covered with a material having 42-ounce finished weight, 54-inch width, and finished vinyl coating of 1.06 broken twill or other material with equal tensile strength, tear strength, seam strength, adhesion strength, and resistance to abrasion, cold and flex separation.

h. All fabric seams shall be chain- or lock-stitch sewn with two threads, each equal to or exceeding the tensile strength of “F’-rated nylon thread.

i. Crash barriers shall be installed conforming to FMVSS 222; however, all Type A-II school bus bodies shall be equipped with padded crash barriers, one located immediately to the rear of the driver’s seat and one at the service door entrance immediately to the rear of the step well.

j. Crash barriers and passenger seats may be constructed with materials that enable them to meet the criteria contained in the school bus seat upholstery fire block test specified in the manual, 1995 National Standards for School Transportation, Missouri Safety Center, Central Missouri State University, Warrensburg, Missouri 64093. Fire block material, when used, shall include the covering of seat bottoms.

44.4(39) Passenger securement seating system.a. Type A-II vehicles shall conform to all federal motor

vehicle safety standards at date of manufacture.b. Unless otherwise required by federal motor vehicle

safety standard, school bus seats may be equipped with passenger securement systems for passengers with disabilities in accordance with 281—Chapter 41 when it is determined by the child’s individual education program staffing team that special seating and positioning are necessary during transportation. When the staffing team determines that a passenger securement system is necessary to safely transport a student with a disability, the need shall be documented in the student’s individual education plan (IEP).

c. When a child securement system is required in 44.4(39)“b,” the seat, including seat frame, seat cushion, belt attachment points, belts and hardware shall comply with all applicable federal motor vehicle safety standards at the time of manufacture. When it is determined that the securement system is no longer necessary to provide seating assistance to

742 FILED LAB 10/7/98


a child with a disability, the securement system shall be removed from the seat frame.

d. Children transported in child safety seats shall be secured to the school bus seat according to the child safety seat manufacturer’s instructions.

44.4(40) Steps.a. The first step at the service door shall be not less than

10 inches and not more than 14 inches from the ground when measured from the top surface of the step to the ground, based on standard chassis specifications, except that on Type D vehicles, the first step at the service door shall be 11 inches to 16 inches from the ground. A step well guard/skid plate shall be installed by the manufacturer on all Type D vehicles.

b. Step risers shall not exceed a height of 10 inches. When plywood is used on a steel floor or step, the riser height may be increased by the thickness of the plywood.

c. Steps shall be enclosed to prevent accumulation of ice and snow.

d. Steps shall not protrude beyond the side body line.e. A suitable device(s) shall be installed within the ser

vice entrance door area to assist passengers during entry or egress from the bus. The device(s) shall be designed so as to prevent injury or fatality to passengers from being dragged by the bus after becoming entangled in the device(s).

44.4(41) Step treads.a. All steps, including floor line platform area, shall be

covered with 3/16-inch rubber floor covering or other materials equal in wear and abrasion resistance to top-grade rubber.

b. Metal back of tread, minimum 24-gauge cold roll steel, shall be permanently bonded to ribbed rubber. Grooved design shall be such that grooves run at a 90-degree angle to the long dimension of the step tread.

c. Three-sixteenth-inch ribbed step tread shall have a l1/2-inch white nosing as an integral piece without any joint.

d. The rubber portion of step treads shall have the following characteristics:

(1) Special compounding for good abrasion resistance and high coefficient of friction.

(2) Flexibility so it can be bent around a Vi-inch mandrel at both 130 degrees Fahrenheit and 20 degrees Fahrenheit without breaking, cracking, or crazing.

(3) Durometer hardness of 85 to 95.e. A three-inch white rubber step edge at floor level,

flush with the floor covering, shall be provided.44.4(42) Stirrup steps.a. Unless the windshield and lamps are not easily acces

sible from the ground, there may be at least one folding stirrup step or recessed foothold and suitably located handles on each side of the front of the body for easy accessibility for cleaning. Handles on the service door are prohibited.

b. Steps or cutouts are permitted in the front bumper only, in lieu of the stirrup steps, if the windshield and lamps are easily accessible for cleaning from that position.

44.4(43) Stop signal arm.a. The stop signal arm shall be a flat 18-inch octagon ex

clusive of brackets for mounting. All lamps and lamp components shall comply with the requirements of FMVSS 131.

b. Both surfaces of the sign shall be covered with reflectorized material having a reflective capability equal to or exceeding that of 3M Corporation high-intensity sheeting.

c. The application of the reflective sheeting material shall be in accordance with the sheeting manufacturer’s suggested application process. All copy shall be sharply defined and clean cut.

d. The stop arm blade shall be mounted in the area below the driver’s window on the left side of the bus.

e. Each stop arm blade shall be automatically extended upon activation of the red warning signal lamp system and remain extended until the red signal lamps are deactivated. In addition, each stop arm blade shall be equipped with two double-faced, four-inch, alternately flashing red lights. The use of strobe lamps in the stop arm blade is acceptable.

f. A wind guard shall be installed which prevents air currents from circulating behind the blade.

g. The stop arm shall be vacuum-, electric-, or air- operated; and the system must positively hold the sign in extended or retracted position to prevent whipping in the wind.

h. If the air for an air-operated stop arm comes from the regular air brake system, the body manufacturer shall provide the necessary check valve and pressure reduction valve to safeguard the air supply for brake application.

i. A second stop signal arm, meeting the above requirements, may be installed and located on the left side at or near the left rear comer of the school bus except that the forward side of the rear stop arm shall have no lights or markings.

j. The two double-faced, four-inch flashing lights may be replaced with an LED illuminated, high-visibility display, spelling out the word “STOP” visible to the front and rear. This lighting system shall comply with applicable federal motor vehicle safety standards prior to installation.

44.4(44) Storage compartments.a. An enclosed space shall be provided in the driver’s

compartment for storing manuals and bus driver records.b. A storage container for tools, tire chains, and tow

chains may be located either inside or outside the passenger compartment; but, if inside, it shall have a cover (seat cushion may not serve this purpose) capable of being securely latched and fastened to the floor, convenient to either the service or emergency door.

44.4(45) Sun shield.a. For Type B, C, and D vehicles, an interior adjustable

transparent sun shield not less than 6 inches by 30 inches with a finished edge shall be installed in a position convenient for use by the driver.

b. On all Type A buses the sun shield shall be the manufacturer’s standard.

44.4(4(5) Tailpipe. See subrule 44.3(16).44.4(47) Front tow hooks. See paragraph 44.3(7)“f.”44.4(48) Rear tow hooks. Two rear tow hooks are re

quired on all school buses. Rear tow hooks shall be attached to the chassis frame and located under the rear bumper so the hook portion is under the body.

44.4(49) Trash container and holding device.a. When a trash container is placed on the school bus, it

shall comply with the following:(1) Meet the requirements of FMVSS 302, Flammability

of Interior Materials.(2) Be no greater than 14-quart capacity.(3) Be secured by a holding device that is designed to pre

vent movement and to allow easy removal and replacement.b. The container shall be placed in an accessible location

in the driver’s compartment of the school bus subject to department of education approval. The container shall not obstruct the aisle of the bus, access to safety equipment or passenger use of the service entrance door.

44.4(50) Undercoating.a. The entire underside of the bus body, including floor

sections, cross member and below floor line side panels, shall be coated with rustproofing compound for which the compound manufacturer has issued notarized certification of

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compliance to the bus body builder that the compound meets or exceeds all performance and qualitative requirements of paragraph 3.4 of Federal Specification TT-C-520b using modified test procedures* for the following requirements:

(1) Salt spray resistance—pass test modified to 5 percent salt and 1000 hours.

(2) Abrasion resistance—pass.(3) Fire resistance—pass.*Test panels to be prepared in accordance with paragraph

4.6.12 of TT-C-520b with modified procedure requiring that test be made on a 48-hour air cured film at thickness recommended by compound manufacturer.

b. Undercoating compound shall be applied with suitable airless or conventional spray equipment to recommended film thickness and shall show no evidence of voids in cured film.

44.4(51) Vacuum check valve. A vacuum check valve shall be provided and installed on the chassis by the school bus body manufacturer for connecting vacuum accessory items.

44.4(52) Vandal lock.a. The school bus may be equipped with a vandal lock

ing system for securing the service entrance and emergency door(s).

b. The vandal locking system shall include the following design features:

(1) The entrance door is to be locked by an exterior key with a dead bolt, a remote control (cable) device or an electric device. The system must prevent the door from being accidentally locked by any motion the bus may encounter during its normal operation. This does not apply to Type A vehicles with a left-side driver’s door.

(2) When the bus is equipped with a rear-mounted engine, the emergency door and rear emergency exit window are to be locked by an interior slide bolt which shall activate a buzzer when the door or emergency exit window is locked and the ignition of the bus is turned on. The locking mechanism must be capable of being locked or unlocked without the use of a separate key or other similar device.

(3) The engine starting system of the bus shall not operate if the rear or side emergency door or rear emergency exit window over the rear engine compartment is locked from either the inside or outside of the bus.

(4) Hasp-type devices may not be attached to the bus for the purpose of securing any door or window.

44.4(53) Ventilation.a. The body ventilation system on Type A, B, C and D

buses shall include one static, nonclosing exhaust vent in the low-pressure area of the roof and one or more combination roof ventilation/emergency escape hatches in accordance with 44.4(13)“b.” The ventilation system shall be capable of being controlled and shall have sufficient capacity to maintain a proper quantity of air under operating conditions without the opening of windows except in extremely warm weather.

b. Each combination roof ventilation/emergency escape hatch shall be installed by the school bus body manufacturer or the body manufacturer’s approved representative and shall have the following design and installation features:

(1) Multiposition fresh air ventilation.(2) Release handle(s) permitting operation as an emer

gency exit(s), accessible inside and outside the vehicle.(3) An audible warning system which sounds an alarm in

the driver’s compartment area when the emergency roof hatch is unlatched may be installed as a design feature by the manufacturer.

(4) When more than one ventilation/emergency roof hatch is required, one shall be installed forward of the intersection of the horizontal and longitudinal midpoints of the bus in a low-pressure area of the roof. The second unit shall be installed on the roof in a location behind the rear axle. When only one ventilation/emergency roof hatch is required, it shall be installed in a low-pressure area of the roof at or near the longitudinal midpoint of the bus.

c. Auxiliary fans shall be installed and shall meet the following requirements:

(1) Two adjustable fans shall be installed on Type A-I, B, C and D buses. Fans for left and right sides shall be placed in a location where they can be adjusted for maximum effectiveness and do not obstruct vision to any mirror.

(2) Fans shall be a nominal 6-inch diameter except where noted below.

(3) Fan blades shall be covered with a protective cage. Each fan shall be controlled by a separate switch capable of two-speed operation.

(4) Type A-II buses shall have at least one fan having a nominal diameter of at least 4 inches meeting the above requirements.

44.4(54) Wheelhousings.a. The wheelhousing opening shall allow for easy tire

removal and service.b. The wheelhousing shall be attached to the floor sheets

in such a manner as to prevent any dust, water or fumes from entering the body. Wheelhousings shall be constructed of at least 16-gauge steel or other material capable of withstanding passenger or other expected loads applied internally or externally without deformation.

c. The inside height of the wheelhousing above the floor line shall not exceed 12 inches.

d. The wheelhousing shall provide clearance for installation and use of tire chains on single and dual (if so equipped) power-driving wheels.

e. No part of a raised wheelhousing shall extend into the emergency door opening.

44.4(55) Windshield and windows.a. All glass in windshield, windows, and doors shall be

of approved safety glass consistent with American National Standard, Safety Code for Safety Glazing Materials for Glazing Motor Vehicles Operating on Land Highways, Z-26.1, mounted so the permanent mark is visible, and of sufficient quality to prevent distortion of view in any direction.

b. Glass in windshields may be heat-absorbing and may contain a shaded band across the top. Location of “fade out” shall be above the upper limit for maximum visibility.

c. Each full side window, other than emergency exits designated to comply with FMVSS 217, shall be split-sash type and shall provide an unobstructed emergency opening of at least 9 inches but not more than 13 inches high and 22 inches wide, obtained by lowering the window. When the driver’s window consists of two sections, both sections shall be capable of being moved or opened. All exposed edges of glass shall be banded.

d. Insulated double glass is required in both sections of the left-side driver’s window and in the upper glass portion^) of the service entrance door.

e. Window glass forward of the service door and in the driver’s direct line of sight for observing exterior rearview mirrors and traffic shall be of insulated double glass. The door glass in Type A-II vehicles equipped with a manufacturer’s standard van-type, right-side service door may be of the manufacturer’s standard design.

744 FILED LAB 10/7/98


f. The school bus body manufacturer may design and install a protective device over the inside, lower window glass of a rear emergency door to protect it from being damaged or broken during normal operation. The protective device shall be securely mounted by the manufacturer, shall be free of projections which might harm passengers, and shall permit visibility through the device to the area outside and to the rear of the bus.

g. Tinted glazing capable of reducing the amount of light passing through a window may be installed consistent with rules established by the Iowa department of public safety relating to automotive window transparency standards, except that the following windows shall be of AS-II clear glass rating:

(1) Both sections of the window to the immediate left of the driver.

(2) All glass forward of and including the left-side driver’s window.

(3) The entire windshield area shall be of AS-I rating.(4) All glass in the service entrance door.44.4(56) Windshield washers. Buses shall be equipped

with electric wet-arm windshield washers which conform to the body manufacturer’s recommendation as to type and size for the bus on which they are to be used. The windshield washer system on Type A vehicles may be of the manufacturer’s standard design.

44.4(57) Windshield wipers.a. For Type A vehicles, windshield wipers shall be sup

plied by the chassis manufacturer and shall be of the manufacturer’s standard design.

b. Type B, C and D buses shall be equipped with two positive-action, two-speed or variable-speed electric or air windshield wipers. Windshield wipers shall have an intermittent wiping feature.

c. The wipers shall be operated by one or more air or electric motors of sufficient power to operate wipers. If one motor is used, the wipers shall work in tandem to give a full sweep of the windshield.

d. All wiper controls shall be located within easy reach of the driver and shall be designed to move the blades from the driver’s view when the wiper control is in the “off’ position.

44.4(58) Wiring.a. All wiring shall conform to current SAE standards.b. Circuits:(1) Wiring shall be arranged in circuits, as required, with

each circuit protected by a fuse or circuit breaker. All wiring shall use a standard color or number coding system or a combination of color and number coding. Each chassis shall be delivered with a wiring diagram that illustrates the wiring of the chassis.

(2) A master wiring diagram shall be supplied for each vehicle provided by the body manufacturer. Chassis wiring diagrams, including any changes to wiring made by the body manufacturer, shall also be supplied to the end user.

(3) The following body interconnecting circuits shall becolor-coded as noted:

FUNCTION COLORLeft Rear Directional Light YellowRight Rear Directional Light Dark GreenStoplights RedBackup Lights BlueTaillights BrownGround WhiteIgnition Feed, Primary Feed BlackThe color of cables shall correspond to SAE J 1128.

c. Wiring shall be arranged in at least six regular circuits as follows:

(1) Head, tail, stop (brake) and instrument panel lamps.(2) Clearance and step well lamps which shall be actuated

when the service door is opened.(3) Dome lamp.(4) Ignition and emergency door signal.(5) Turn signal lamps.(6) Alternately flashing signal lamps.d. Any of the above combination circuits may be subdi

vided into additional independent circuits.e. Whenever heaters and defrosters are used, at least one

additional circuit shall be installed.f. Whenever possible, all other electrical functions,

such as sanders and electric-type windshield wipers, shall be provided with independent and properly protected circuits.

g. Each body circuit shall be coded by number or letter on a diagram of circuits which shall be attached to the body in a readily accessible location.

h. The entire electrical system of the body shall be designed for the same voltage as the chassis on which the body is mounted.

i. All wiring shall have an amperage capacity exceeding the design load by at least 25 percent. All wiring splices are to be made at an accessible location and noted as splices on wiring diagram.

j. A body wiring diagram, of a size which can be easily read, shall be furnished with each bus body or affixed in an area convenient to the electrical accessory control panel.

k. The body power wire shall be attached to a special terminal on the chassis.

l. All wires passing through metal openings shall be protected by a grommet.

m. Wires not enclosed within the body shall be fastened securely at intervals of not more than 18 inches. All joints shall be soldered or joined by equally effective connectors, which shall be water-resistant and corrosion-resistant.

281—44.5(285) Construction of vehicles for children with mobility problems. The following shall apply to vehicles constructed for the transportation of children with mobility problems of such severity that the children are prohibited from utilizingthe regular service doorentrance. Vehicles constructed for transporting these children shall meet all federal motor vehicle safety standards relating to school bus construction and Iowa school bus construction requirements as described in rules 281—44.1(285) and 281—44.4(285). The following standards shall also apply:

44.5(1) General requirements.a. Certification of these vehicles as multipurpose pas

senger vehicles due to capacity rating shall not relieve the manufacturer of the responsibility to provide a completed vehicle meeting all federal motor vehicle safety standards for school buses as well as rules 281—44.1(285) to 281— 44.4(285) relating to the construction of a school bus.

b. Alteration of the interior of the vehicle is permissible if all seats and barriers, component parts, anchorages, wheelchair securement devices, and placement of seats and barriers and wheelchair securement devices comply with federal requirements as of date of manufacture. All equipment must be supplied by the original manufacturer and installed per the original manufacturer’s specification. Alteration which would return the vehicle to conventional passenger seating shall include removal of all wheelchair securement devices, removal of the power lift, and rendering the special service door inoperable.

LAB 10/7/98 FILED 745


c. Any school bus that is used for the transportation of children who are confined to a wheelchair or other restraining devices which prohibit use of the regular service entrance shall be equipped with a power lift located on the right side of the bus body and forward of the rear wheels. (See paragraph 44.5(2)“f.”)

d. The actual rated seating capacity following modification of a vehicle shall be placed at locations indicated in paragraph 44.4(20)“d.”

e. Ramps are not permitted.44.5(2) Specific requirements.a. Aisle.(1) Aisles leading from wheelchair placement(s) to the

special service door and the service door shall at all times be wide enough to permit passage of a wheelchair.

(2) Aisles leading to the emergency door from wheelchair placement(s) shall at all times be at least 20 inches in width.

b. Barriers.(1) Barriers shall comply with and be installed as re

quired by federal standards as of date of manufacture.(2) A heavy-duty padded barrier or stanchion shall be

provided immediately to the rear of the step well opening extending from the side wall of the bus to approximately the aisle to prevent a person from accidentally falling into the step well opening from floor level. A barrier or stanchion as mentioned above shall also be placed directly behind the driver.

(3) The power lift mechanism shall be padded and adequately protected to prevent a child from accidentally getting any part of the child’s body caught in the power lift mechanism or special service door at any time.

(4) In the event that an elevator (body floor section serving as lift platform) lift is used, both the forward and rear side of the platform shall be protected with heavy-duty padded barriers extending from the wall of the body toward the aisle. A covered chain shall be fastened to the rear barrier adjacent to the lift platform, extend across the platform opening, and attach with hook and eye to the forward barrier adjacent to the lift platform.

c. Glazing. Tinted glazing may be installed in all doors, windows, and windshield.

d. Heaters. An additional heater(s) may be installed in the rear portion of the bus on or behind wheel wells.

e. Identification. Buses with wheelchair lifts used for transporting physically handicapped children may display universal handicapped symbols located on the front and rear of the vehicle below the window line. Emblems shall be white on blue, shall not exceed 12 square inches in size, and may be reflectorized.

f. Power lift.(1) The lifting mechanism shall be able to lift a minimum

payload of 800 pounds.(2) The power lift shall be located on the right side of the

body and in no way be attached to the exterior sides of the bus, but should be confined within the perimeter of the school bus body when not extended. The power lift shall be located forward of the rear wheels of the vehicle.

(3) When the platform is in the fully “up” position, it shall be locked in position mechanically by means other than a support or lug in the door.

(4) All lift controls shall be portable and conveniently located on the inside of the bus near the top of the special service door opening. Controls shall be easily operable from inside or outside the bus by either a platform standee or person

seated in a wheelchair when the lift is in any position. A master cut-off switch shall be located in the driver’s compartment. There shall be a means of preventing the lift platform from falling while in operation due to a power failure.

(5) Power lifts shall be equipped so they may be manually raised or lowered in the event of power failure of the power lift mechanism.

(6) The platform shall accommodate a wheelchair which is 30 inches wide. The platform shall be not less than 44 inches long, including guard panels or rails.

(7) The power lift platform shall be covered with skid- resistant material or be designed to prevent slipping.

(8) The lift platform shall be constructed to permit vision through that portion of the platform covering the window of the special service door when the platform is in the “up” position.

(9) All edges of the platform shall be designed to restrain a wheelchair and to prevent the operator’s feet from being entangled during the raising and lowering process.

(10) The platform shall be fitted on both sides with full width shields which extend above the floor line of the lift platform.

(11) An inward operating safety barrier shall be affixed to the outer edge (curb end) of the platform that will prohibit the wheelchair from rolling off the platform when the lift is in any position other than fully extended to ground level. The barrier shall not be capable of being manually operated.

(12) A self-adjusting, skid-resistant plate shall be installed on the outer edge of the platform to minimize the incline from the lift platform to the ground level. This plate, if so designed, may also suffice as the restraining device described in subparagraph (11) above.

(13) The power lift shall be designed so the lift will not operate unless the special service door(s) is opened and the lift platform is in the “down” or horizontal position.

(14) The lift travel shall allow the lift platform to rest securely on the ground.

(15) A circuit breaker or fuse shall be installed between the power source and the lift motor if electrical power is used.

(16) When hydraulic pressure is used in the lifting process, the system shall be equipped with adjustable limit switches or bypass valves to prevent excessive pressure from building in the hydraulic system when the platform reaches the full “up” position or full “down” position.

(17) All exposed parts of the power lift which are in direct line with the forward or rearward travel of a wheelchair student or attendant shall be padded with energy-absorbing material.

g. Ramps. Ramps are not permitted.h. Regular service entrance. An additional fold-out or

slide-out step may be provided which will provide for the step level to be no more than 6 inches from the ground level to assist persons with handicapping conditions that prohibit the use of the standard entrance step. This step, when stored and not in use, shall not impede or in any way block the normal use of the entrance.

i. Seating and seating arrangements.(1) All seat spacing, seats, and related components shall

comply with applicable federal standards as of date of manufacture.

(2) All seats shall be forward facing. Side-facing seats are prohibited.

746 FILED LAB 10/7/98


(3) Seat frames may be equipped by the school bus body manufacturer with rings or other devices to which passenger restraint systems may be attached.

j. Special light. Light(s) shall be placed inside the bus to sufficiently illuminate the lift area and shall be activated from the door area.

k. Special service opening.(1) There shall be an enclosed service opening located on

the right side (curb side) of the body forward of the rear wheels to accommodate a wheelchair lift.

(2) The opening shall be at least 52 inches high and 40 inches wide and with doors open shall be of sufficient width to allow for the installation of various power lifts and related accessories as well as a lifting platform at least 32 inches wide.

(3) The opening shall be positioned far enough to the rear of the regular service door opening to prevent interference of the special service door(s) opening with the regular service doors.

(4) The opening may extend below the floor through the bottom of the body skirt. If an opening is used, reinforcements shall be installed at the front and rear of the floor opening to support the floor and shall give the same strength as other floor openings.

(5) A drip molding shall be installed above the opening to effectively divert water from the entrance.

(6) Doorposts, headers, and all floor sections around this special opening shall be reinforced to provide strength and support equivalent to adjacent side wall and floor construction of an unaltered model.

(7) A header pad at least 3 inches wide, extending the width of special service door, shall be placed above the opening on the inside of the bus.

l. Special service door(s).(1) A single door may be used if the width of the door

opening does not exceed 42 inches. Two doors shall be used where the door opening exceeds 42 inches.

(2) All doors shall open outwardly.(3) All doors shall have positive fastening devices to hold

doors in the open position.(4) All doors shall be equipped with heavy-duty hinges

and shall be hinged to the side of the bus.(5) All doors shall be weather sealed; and on buses with

double doors, each door shall be of the same size and constructed so a flange on the forward door overlaps the edge of the rear door when closed.

(6) If optional power doors are installed, the design shall permit release of the doors for opening and closing by the attendant from the platform inside the bus.

(7) When manually operated dual doors are provided, the rear door shall have at least a one-point fastening device to the header. The forward-mounted door shall have at least three-point fastening devices: One shall be to the header, one shall be to the floor line of the body, and the other shall be into the rear door. These locking devices shall afford maximum safety when the doors are in the closed position. The door and hinge mechanism shall be of a strength that will provide the same type of use as that of a standard entrance door.

(8) If the door is made of one-piece construction, the door shall be equipped with a slidebar, cam-operated locking device.

(9) Each door shall have installed a safety glass window, set in rubber, and aligned with the lower line of adjacent sash and as nearly as practical to the same size as other bus windows.

(10) Door materials, panels, and structural strength shall be equivalent to the conventional service and emergency doors. Color, rub rail extensions, lettering, and other exterior features shall match adjacent sections of the body.

(11) The door(s) shall be equipped with a device(s) that will actuate a flashing visible signal located in the driver’s compartment when the door(s) is not securely closed. (An audible signal is not permitted.)

m. Special student restraining devices.(1) Wheelchairs shall be equipped with an appropriate

passenger restraint system.(2) Special restraining devices such as shoulder har

nesses, lap belts, and chest restraint systems may be installed to the seats providing that the devices do not require the alteration in any form of the school bus seat, seat cushion, framework, or related seat components. These restraints must be for the sole purpose of restraining handicapped students.

n. Wheelchair securement systems.(1) Securement systems for wheelchairs shall be those

approved by the bureau of school administration and accreditation, Iowa department of education.

(2) All wheelchair securement systems or devices shall be placed in the vehicle so that, when secured, both wheelchair and occupant are facing toward the front of the vehicle. Fastening devices resulting in a side-facing wheelchair and occupant are not permissible.

(3) Wheelchair securement systems or devices shall be provided and attached to the floor of the vehicle with Grade “5” or better bolts and self-locking nuts or lock washers and nuts. The devices must be of the type that require human intervention to unlatch or disengage.

(4) The securement system must be designed to withstand forces up to 2,000 pounds per tiedown leg or clamping mechanism or 4,000 pounds total for each wheelchair, whichever is the lesser of the two.

(5) Straps or seat-belt devices running through the wheels of the wheelchair or around the student seated in the wheelchair for the purpose of securing the wheelchair to the floor are not acceptable.

(6) When the wheelchair securement system(s) is located in a school bus so that when a wheelchair is not secured in place the device(s) may create a tripping hazard for school bus drivers, passengers, or attendants, the fastening device^) shall not extend above the floor level more than Vz inch.281—44.6(285) Family-type or multipurpose passenger vehicles.

44.6(1) General information. These vehicles may be used as a school bus in accordance with the following general requirements:

a. The vehicle shall be an original equipment manufacturer’s (OEM) product and manufactured as a family-type or multipurpose passenger vehicle (MPV).

b. The manufacturer’s rated capacity of this vehicle, which shall be determined only by the original equipment manufacturer (OEM) on the date of manufacture, shall not exceed nine persons including the driver. The capacity rating may not be changed or modified except by the original equipment manufacturer. Secondary stage or vehicle conversion manufacturers shall not establish vehicle capacity.

c. Alteration of this vehicle, following manufacture by the OEM, is prohibited. This includes, but is not limited to, the addition or removal of seats, ramps, wheelchair securement devices and power lifts.

LAB 10/7/98 FILED 747


EXCEPTION: OEM options or other manufacturer’s accessories not in violation of these standards may be installed.

d. The vehicle shall not carry more passengers than there are seat belts as installed by the manufacturer.

e. The vehicle shall not be painted the color known as national school bus glossy yellow.

f. The vehicle shall not be equipped with a stop arm or flashing warning signal lamps.

g. This vehicle must load and unload students off the traveled portion of the roadway.

44.6(2) Special equipment.a. Interior liner. An interior liner that covers all exposed

ceiling girders, sidewall posts, or other structural projections must be provided and installed by the manufacturer.

b. The vehicle, while transporting students to and from school, shall display a sign, visible to the rear, with the words “SCHOOL BUS.” The sign shall be painted national school bus glossy yellow with black letters 6 inches high. The sign shall be a type that can be removed, dismounted, or covered when the vehicle is not transporting pupils to and from school.

c. A sign with the words “THIS VEHICLE STOPS AT ALL RAILROAD CROSSINGS,” visible to the rear, may be used where appropriate and not in conflict with current statutes. If used, the words shall be painted in black letters on a yellow background. The sign shall be of a type that can be dismounted, turned down, or covered when the vehicle is not transporting pupils to and from school.

d. Special brake lamps. The vehicle may be equipped with two roof-mounted lights not greater than 4 inches in diameter and positioned horizontally on the roof at least 36 inches apart. The lights shall be connected to the brake lamp circuit of the vehicle’s electrical system and shall operate only when the brakes are applied. When lit, the lamps shall be red and shall be visible only to the rear.

e. First-aid kit. The vehicle shall carry a ten-unit first- aid kit. See 44.4(15)“e”(2).

f. Fire extinguisher. The vehicle shall carry a dry chemical fire extinguisher of at least 21/2-pound capacity with a rating of 2A-10BC. The extinguisher shall be equipped with a calibrated or marked gauge. Plastic discharge heads and related parts are not acceptable.

44.6(3) Applicability of standards. The above standards apply to all new vehicles of this type and those currently in service used to transport students to and from school.

281—44.7(285) Repair, replacement of school bus body and chassis components following original equipment manufacture.

44.7(1) Body and chassis repair following an accident.a. A school bus that has been involved in an accident in

which there is damage to the body or chassis components may be repaired to the extent that such repair is possible and that the damaged component can be returned to the original equipment manufacturer’s specification and function.

b. The individual or company making the repairs shall certify to the vehicle’s owner that all repairs have been made in accordance with the original vehicle or component manufacturer’s recommendations using original equipment manufacturer’s materials and parts, or their guaranteed equal.

c. Repairs shall not cause the vehicle to no longer comply with any federal motor vehicle safety standard(s) in effect and applicable at the time the vehicle or component was manufactured.

44.7(2) New technology and equipment approval procedure. It is the intent of these rules to accommodate new technologies and equipment which will better facilitate the transportation of students to and from school and related activities. A new technology, piece of equipment or component that meets the following criteria may be adopted under the following conditions pending formal rule adoption:

a. The technology, equipment or component shall not compromise the effectiveness or integrity of any major safety system, unless it completely replaces the system.

b. It shall not diminish the safe environment of the interior of the bus.

c. It shall not create additional risk to students who are boarding or exiting the bus or are in or near the school bus loading zone.

d. It shall not create undue additional activity or responsibility for the driver.

e. It shall not generally decrease the safety or efficiency of the bus.

f. It shall generally provide for a safer or more pleasant experience for the occupants and pedestrians in the vicinity of the bus or generally assist the driver or make the driver’s many tasks easier to perform.

g. A pilot test for the purpose of evaluating the performance of the new technology, product or vehicle component may be conducted at the direction of the school transportation consultant with the approval of the director of the department of education. The pilot test shall include a minimum of five, but not more than ten, applications of the technology, product or component at locations and over a period of time to be mutually agreed upon by the department and the manufacturer of the product.

h. The cost of the technology, product or vehicle component and its installation shall be the responsibility of the manufacturer unless other arrangements are made prior to testing or evaluation.

i. An evaluation of the product’s performance shall be conducted by department staff, and if the product is determined to meet the criteria listed in 44.7(2)“a” to “f,” measures shall be taken as soon as practicable to formally approve the product.

j. A technology, product or component not recommended for approval by the department shall immediately be removed from vehicles upon which pilot tests were being conducted; and its use shall be discontinued by schools or individuals serving as pilot test sites, upon receipt of written notice from the department of education.

These rules are intended to implement Iowa Code sections 285.8 and 321.373.



ARC 8363A


Adopted and Filed

Pursuant to the authority of Iowa Code section 217.6, the Department of Human Services hereby amends Chapter 1,

748 FILED IAB 10/7/98

HUMAN SERVICES DEPARTMENT[441](cont’d)

“Departmental Organization and Procedures,” appearing in the Iowa Administrative Code.

The Council on Human Services adopted this amendment September 15, 1998. Notice of Intended Action regarding this amendment was published in the Iowa Administrative Bulletin on July 15, 1998, as ARC 8147A.

1998 Iowa Acts, Senate File 2406, section 19, repealed Iowa Code section 217.9A, which established the Commission on Children, Youth and Families. This amendment removes the Commission from the Department’s rules on organization and procedures.

This amendment is identical to that published under Notice of Intended Action.

This amendment is intended to implement Iowa Code section 17A.3(1).

This amendment shall become effective December 1, 1998.

The following amendment is adopted.

Rescind and reserve rule 441—1.9(17A).



ARC 8364A

HUMAN SERVICES DEPARTMENT [441]

Adopted and Filed

Pursuant to the authority of Iowa Code section 249A.4 and 1998 Iowa Acts, Senate File 2410, section 7, subsection 12, and section 80, the Department of Human Services hereby amends Chapter 75, “Conditions of Eligibility,” appearing in the Iowa Administrative Code.

This amendment reinstates the four-month work transition period for Medicaid.

The work transition period (WTP) is a four-month disregard of earnings for certain people who begin new employment. The WTP was originally established as a welfare reform waiver policy in the Family Investment Program (FIP) that was designed to be an incentive for welfare participants to begin new employment. The Medicaid and Food Stamp programs also adopted the WTP policy. During an evaluation of the welfare reform policies, it was recommended by the Welfare Reform Advisory Council that this disregard be discontinued because it was not meeting the goal for which it was intended and was very complex to administer. The General Assembly supported the recommendation and on April 18,1997, Governor Branstad signed 1997 Iowa Acts, chapter 41, section 35, which directed the Department to eliminate the WTP as of October 1,1997, for the FIP, Food Stamp, and Medicaid programs.

In the meantime, the Balanced Budget Act (BBA) of 1997 was signed into law on August 5, 1997. The BBA added Title 21 to the Social Security Act and appropriated $39.6 billion to enable states to develop health care programs for uninsured children. Section 2105 of the BBA contains a maintenance of effort provision which prohibits states from adopting more restrictive income and resources methodologies than those that were in place as of June 1,1997.

The Department proceeded to eliminate the WTP effective October 1,1997, and submitted a State Plan amendment to the Health Care Financing Administration (HCFA) in December of 1997. HCFA has advised the state that even though the Iowa General Assembly passed legislation to eliminate the WTP prior to the passage of the BBA and the maintenance of effort date, if Iowa does not withdraw the State Plan amendment, Iowa will lose approximately $32 million annually in federal child health care funding.

The 1998 Iowa General Assembly passed legislation authorizing the Department to reinstate the WTP for Medicaid only if the disregard must be reinstated to ensure federal funding. The Department is working with the Iowa Congressional Delegation to find a legislative remedy.

The Council on Human Services adopted this amendment September 15,1998.

This amendment was previously Adopted and Filed Emergency and published in the July 15,1998, Iowa Administrative Bulletin as ARC 8151A. Notice of Intended Action to solicit comments on that submission was published in the July 15,1998, Iowa Administrative Bulletin as ARC 8150A.

This amendment is identical to that published under Notice of Intended Action.

This amendment is intended to implement Iowa Code section 249A.4 and 1998 Iowa Acts, Senate File 2410, section 7, subsection 12.

This amendment shall become effective December 1, 1998, at which time the Adopted and Filed Emergency amendment is hereby rescinded.


Amend subrule 75.57(7) by adding the following new paragraph:

af. Earnings from new employment of any person whose income is considered when determining eligibility during the first four calendar months of the new employment. The date the new employment or self-employment begins shall be verified before approval of the exemption. This four- month period shall be referred to as the work transition period (WTP).

(1) The exempt period starts the first day of the month in which the client receives the first pay from the new employment and continues through the next three benefit months, regardless if the job ends during the four-month period.

(2) To qualify for this disregard, the person shall not have earned more than $1,200 in the 12 calendar months prior to the month in which the new job begins, the income must be reported timely in accordance with rule 441—76.10(249A), and the new job must have started after the date the application is filed. For purposes of this policy, the $1,200 earnings limit applies to the gross amount of income without any allowance for exemptions, disregards, work deductions, diversions, or the costs of doing business used in determining net profit from any income test in rule 441—75.57(249A).

(3) If another new job or self-employment enterprise starts while a WTP is in progress, the exemption shall also be applied to earnings from the new source that are received during the original 4-month period, provided that the earnings were less than $1,200 in the 12-month period before the month the other new job or self-employment enterprise begins.

(4) An individual is allowed the 4-month exemption period only once in a 12-month period. An additional 4-month exemption shall not be granted until the month after the previous 12-month period has expired.

LAB 10/7/98 FILED 749

HUMAN SERVICES DEPARTMENT[441 ] (con t ’ d)

(5) If a person whose income is considered enters the household, the new job must start after the date the person enters the home or after the person is reported in the home, whichever is later, in order for that person to qualify for the exemption.

(6) When a person living in the home whose income is not considered subsequently becomes an assistance unit member whose income is considered, the new job must start after the date of the change that causes the person’s income to be considered in order for that person to qualify for the exemption.

(7) A person who begins new employment or self- employment that is intermittent in nature may qualify for the WTP. “Intermittent” includes, but is not limited to, working for a temporary agency that places the person in different job assignments on an as-needed or on-call basis, or self- employment from providing child care for one or more families. However, a person is not considered as starting new employment or self-employment each time intermittent employment restarts or changes such as when the same temporary agency places the person in a new assignment or a child care provider acquires another child care client.


EDITOR’S NOTE: For replacement pages for IAC, see LAC Supplement 10/7/98.

ARC 836SA

HUMAN SERVICES BEFARTMENT[441]

Adopted and Filed

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

The Council on Human Services adopted these amendments September 15,1998. Notice of Intended Action regarding these amendments was published in the Iowa Administrative Bulletin on July 15,1998, as ARC 8I52A.

These amendments revise Medicaid policy governing payment for hospice services. The amendments allow an unlimited number of 60-day certification periods following two 90-day periods, relieve the hospice of the responsibility for hiring a physician directly, and refine the definition of terminal illness. Patients are now eligible for hospice if their prognosis is for a life expectancy of six months or less “if the terminal illness runs its normal course.” This change recognizes that patients sometimes outlive their prognoses, resulting in longer hospice usage than originally contemplated.

State hospice policy mirrors federal policy. These amendments reflect changes in federal hospice rules as a result of passage of the Balanced Budget Act of 1997.

These changes confer a benefit on clients by allowing a person to elect hospice benefits with a more flexible methodology or benefit period. Additionally, providers are given more flexibility in how they operate their hospice, which will be a benefit to providers who live in rural areas or who have difficulty recruiting medical personnel.

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


These amendments shall become effective December 1, 1998.


Item 1. Amend rule 441—78.36(249A) as follows:Amend subrule 7836(1), paragraph “a,” as follows:Amend subparagraph (8) as follows:(8) Physical therapy, occupational therapy and speech-

language pathology unless this provision has been waived under the Medicare program for a specific provider.

Adopt the following new subparagraph (9):(9) Other items or services specified in the resident’s plan

that would otherwise be paid under the Medicaid program.Amend the last paragraph as follows:Nursing care, medical social services, physician-services

and counseling are core hospice services and must routinely be provided directly by hospice employees. The hospice may contract with other providers to provide the remaining services. Bereavement counseling, consisting of counseling services provided after the individual’s death to the individual’s family or other persons caring for the individual, is a required hospice service but is not reimbursable.

Further amend subrule 7836(1), paragraph “lb,” subparagraph (2), as follows:

(2) Administrative duties performed by the medical director, any hospice-employed physician, or any consulting physician are included in the normal hospice rates. Patient care provided by the medical director, hospice-employed physician, attending physician, or consulting physician is separately reimbursable. Payment to the attending or consulting physician includes other partners in practice.

Amend subrule 78.36(4), introductory paragraph and paragraph “a,” as follows:

7836(4) Approval for hospice benefits. Payment will be approved for hospice services to individuals who are certified as terminally ill, that is, the individuals have a medical prognosis that their life expectancy is six months or less if the illness runs its normal course, and who elect hospice care rather than active treatment for the illness.

a. Physician certification process. The hospice must obtain certification that an individual is terminally ill in accordance with the following procedures:

(1) The hospice may obtain verbal orders to initiate hospice service from the medical director of the hospice or the physician member of the hospice interdisciplinary group and by the individual’s attending physician (if the individual has an attending physician). The verbal order shall be noted in the patient’s record. The verbal order must be given within two days of the start of care and be followed up in writing no later than eight calendar days after hospice care is initiated. The certification must include the statement that the individual’s medical prognosis is that the individual’s life expectancy is six months or less if the illness runs its normal course.

(2) When verbal orders are not secured, the hospice must obtain, no later than two calendar days after hospice care is initiated, written certification signed by the medical director of the hospice or the physician member of the hospice interdisciplinary group and by the individual’s attending physician (if the individual has an attending physician). The certification must include the statement that the individual’s medical prognosis is that the individual’s life expectancy is six months or less, if the illness runs its normal course.

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HUMAN SERVICES DEPARTMENT[441](cont’d)

(3) When the individual remains in the-eare of the hospice at the end of six months^ another certification is required.The procedures and time frames in subparagraphs (1) and (2)above are to be-folio wedr Hospice care benefit periods consist of up to two periods of 90 days each and an unlimited number of subsequent 60-day periods as elected by the individual. The medical director or a physician must recertify at the beginning of each benefit period that the individual is terminally ill.

Item 2. Amend subrule 79.1(14) by adopting the following new paragraph “f”:

f. Location of services. Claims must identify the geographic location where the service is provided (as distinct from the location of the hospice).



ARC 8366A


Adopted and Filed

Pursuant to the authority of Iowa Code section 249A.4, the Department of Human Services hereby amends Chapter 81, “Nursing Facilities,” appearing in the Iowa Administrative Code.

The Council on Human Services adopted these amendments September 15, 1998. Notice of Intended Action regarding these amendments was published in the Iowa Administrative Bulletin on July 29, 1998, as ARC 8216A.

Current policy provides that a nursing facility that is assessed a penalty under the Medicare or Medicaid program may not have a nurse aide training program in its facility for two years. This is sometimes a hardship for the facility in training new nurse aides.

These amendments establish the terms for the Department of Inspections and Appeals to grant an exception to a facility to allow the facility to have the 75-hour nurse aide training course provided in the facility. The training must not be conducted by the facility. The conditions are as follows:

• The facility has submitted Form 470-3494, Nurse Aide Education Program Waiver Request, to the DLA to request a waiver for each 75-hour nurse aide training course to be offered in (but not by) the facility.

• The 75-hour nurse aide training is offered in a facility by an approved nurse aide training and competency evaluation program (NATCEP).

• No other NATCEP program is offered within 30 minutes’ travel from the facility, unless the facility can demonstrate the distance or program would create a hardship for program participants.

• The facility is in substantial compliance with the federal requirements related to nursing care and services.

• The facility is not a poor performing facility.• Employees of the facility do not function as instruc

tors for the program unless specifically approved by DLA.• The NATCEP sponsoring the 75-hour nursing aide

training course is responsible for program administration and for ensuring that program requirements are met.

• The NATCEP has submitted an evaluation to the DLA indicating that an adequate teaching and learning environment exists for conducting the course.

• The NATCEP has developed policies for communicating and resolving problems encountered during the course, including notice by the facility to the program instructor and students on how to contact the DLA to register any concerns encountered during the course.

• The NATCEP shall require the program instructor and students to complete an evaluation of the course. The instructor shall return the completed evaluations to the NATCEP which shall return the evaluations to DLA.

Based on comments from the Department of Inspections and Appeals, the following revisions were made to the Notice of Intended Action:

The revision to subrule 81.16(2), paragraph “b,” subparagraph (3), was not adopted, and the entire subparagraph (3) was rescinded as the provision contained in the subparagraph is no longer used.

A revision to subrule 81.16(2), paragraph “b,” subparagraph (2), was added to reflect the change in policy regarding provision of training.


These amendments shall become effective December 1, 1998.


Item 1. Amend rule 441—81.1(249A) by adopting the following new definitions in alphabetical order:

“Nurse aide training and competency evaluation programs (NATCEP)” are educational programs approved by the department of inspections and appeals for nurse aide training as designated in subrule 81.16(3).

“Poor performing facility (PPF)” is a facility designated by the department of inspections and appeals as a poor performing facility (PPF) based on surveys conducted by the department of inspections and appeals pursuant to subrule 81.13(1). A facility shall be designated a PPF if it has been cited for substandard quality of care on the current standard survey and it:

1. Has been cited for substandard quality of care or immediate jeopardy on at least one of the previous two standard surveys;

2. Has a history of substantiated complaints during the last two years;

3. Has a current deficiency for not having a quality assurance program; or

4. Does not have an effective quality assurance program as defined in paragraph 81.13(19)“o.”

Item 2. Amend subrule 81.16(2) as follows:Amend subrule 81.16(2), paragraph “b,” subparagraph

(2), introductory paragraph, as follows:(2) The Except as provided by paragraph 81.16(2)“f ”

the department of inspections and appeals shall not approve a nurse aide training and competency evaluation program or competency evaluation program offered by or in a facility which, in the previous two years:

Rescind and reserve subrule 81.16(2), paragraph “b,” subparagraph (3).

Adopt the following new paragraph “f”:f. An exception to subparagraph 81.16(2)“b”(2) may be

granted by the department of inspections and appeals (DLA) for 75-hour nurse aide training courses offered in (but not by) a facility under the following conditions:

IAB 10/7/98 FILED 751

HUMAN SERVICES DEPARTMENT^441 ](cont’d)

(1) The facility has submitted Form 470-3494, Nurse Aide Education Program Waiver Request, to the DIA to request a waiver for each 75-hour nurse aide training course to be offered in (but not by) the facility.

(2) The 75-hour nurse aide training is offered in a facility by an approved nurse aide training and competency evaluation program (NATCEP).

(3) No other NATCEP program is offered within 30 minutes’ travel from the facility, unless the facility can demonstrate the distance or program would create a hardship for program participants.

(4) The facility is in substantial compliance with the federal requirements related to nursing care and services.

(5) The facility is not a poor performing facility.(6) Employees of the facility do not function as instruc

tors for the program unless specifically approved by DIA.(7) The NATCEP sponsoring the 75-hour nursing aide

training course is responsible for program administration and for ensuring that program requirements are met.

(8) The NATCEP has submitted an evaluation to the DIA indicating that an adequate teaching and learning environment exists for conducting the course.

(9) The NATCEP has developed policies for communicating and resolving problems encountered during the course, including notice by the facility to the program instructor and students on how to contact the DIA to register any concerns encountered during the course.

(10) The NATCEP shall require the program instructor and students to complete an evaluation of the course. The instructor shall return the completed evaluations to the NATCEP which shall return the evaluations to DIA.


EDITOR’S Note: For replacement pages for IAC, see IAC Supplement 10/7/98.

ARC 8368A

INSURANCE DIVISION[191]Adopted and Filed

Pursuant to the authority of Iowa Code sections 502.607 and 505.8, the Iowa Insurance Division amends Chapter 1, “Organization of Division,” Iowa Administrative Code.

The Division has relocated its offices from the Lucas State Office Building to a building located in the 300 block of East Maple in Des Moines, Iowa. The amendments insert the Division’s new address. Also, the Division is now able to provide a dedicated public access room. The amendments establish procedures for that public access room and related public access issues. Information about the Division’s operations is also being updated.

Notice of Intended Action was published in the April 8, 1998, Iowa Administrative Bulletin as ARC 7910A. No comments were received, and these amendments are identical to those published under the Notice of Intended Action.

These amendments will become effective November 11, 1998.

These amendments are intended to implement Iowa Code sections 502.607 and 505.8.

EDITOR’S NOTE: Pursuant to recommendation of the Administrative Rules Review Committee published in the Iowa Administrative Bulletin, September 10,1986, the text

of these rules [1.1 to 1.3] is being omitted. These rules are identical to those published under Notice as ARC 7910A IAB 4/8/98.


[For replacement pages for IAC, see IAC Supplement 10/7/98.]

ARC 8367AINSURANCE DIVISION[191]

Adopted and Filed

Pursuant to the authority of Iowa Code sections 523A.16 and 523E.16, the Iowa Insurance Division amends Chapter 19, “Prearranged Funeral Contracts,” Iowa Administrative Code.

The amendments address an industry request for clarification on the appropriate way to treat capital gains earned in trust accounts. Also, the amendments update the consumer price index adjustments and add a six-month time frame to withdraw interest.

Notice of Intended Action was published in the April 8, 1998, Iowa Administrative Bulletin as ARC 791IA. No comments were received, and these amendments are identical to those published under Notice of Intended Action.


These amendments are intended to implement Iowa Code sections 523A.1, 523A.16,523E.1, and 523E.16.

The following amendments are adopted.Item 1. Amend rule 191—19.2(523A,523E) by adding

the following new definition in alphabetical order:“Interest” or “income” means, for purposes of Iowa Code

sections 523A. 1 and 523E.l, unrealized net appreciation or loss in the fair value of the trust’s assets for which a market value may be determined with reasonable certainty plus the return in money or property derived from the use of trust principal or income, net of investment losses, taxes and expenses incurred in the sale of trust assets, any cost of the operation of the trust and any annual audit fee, including returns received as:

1. Rent of real or personal property, including sums received for cancellations or renewal of a lease and any royalties;

2. Interest on money lent, including sums received as consideration for privilege of prepayment of principal;

3. Cash dividends paid on corporate stock;4. Interest paid on deposit funds or debt obligations; and5. Gain realized from the sale of trust assets.Item 2. Amend rule 191—19.60(523A) as follows:

191—19.60(523A) Consumer price index adjustment Pursuant to Iowa Code Supplement section 523A.1, the administrator sets the following amounts inflation adjustment factors for the purpose of calculating the amount of interest or income earned on amounts deposited in trust that must remain trust funds as an adjustment for inflation:

1997..........................................................................1.7%1996..........................................................................3.3%1995 ......................................................................... 2.5%1994 ......................................................................... 2.7%1993 ......................................................................... 2.7%

752 FILED IAB 10/7/98

INSURANCE DiyiSION[191](cont’d)

1992 ................................................................................ 2.9%1991................................................................................ 3.1%1990 ................................................................................ 6.1%1989 ................................................................................ 4.6%1988 ................................................................................ 4.4%1987 ................................................................................ 4.4%Within 180 days after each calendar year, the seller shall

calculate the amount of the consumer price index adjustment by multiplying the inflation adjustment factor for the preceding calendar year by the trust’s market value on January 1 of the preceding year (minus any contracts which have matured or been canceled during the preceding year).

Within 180 days after each calendar year, the seller may withdraw from the trust an amount equal to the aggregate interest and income credited to the trust during the preceding calendar year, less the greater of:

1. One-half of the aggregate interest and income credited to the trust during the preceding calendar year, or

2. An amount equal to the consumer price index adjustment for the preceding year. Income distributions withdrawn from the trust shall be allocated to those purchasers’ accounts remaining in the trust at the end of the month in which the distribution was made and on the basis that each such account ’s income balance for that month bears to the aggregate income balances of all such accounts. Within 240 days after each calendar year, any income not withdrawn pursuant to this rule shall be allocated to purchasers’ accounts remaining in the trust at the end of the month in which the allocation was made.



ARC 8382A

NURSING BOARD [655]Adopted and Filed

Pursuant to the authority of Iowa Code sections 17A.3 and 147.76, the Iowa Board of Nursing hereby adopts amendments to Chapter 6, “Nursing Practice for Registered Nurses/ Licensed Practical Nurses,” Iowa Administrative Code.

These amendments expand the LPN scope of practice related to intravenous therapy and modify the LPN scope of practice in the school setting.

These amendments were published in the Iowa Administrative Bulletin on July 15,1998, as ARC 8145A. There was a public hearing held on September 2,1998. These amendments are identical to those published under Notice of Intended Action.


These amendments are intended to implement Iowa Code section 152.1.


Item 1. Amend subrule 6.2(5) by adopting the following new paragraph “c” and relettering paragraphs “c” and “d” as “d” and “e”:

c. Using professional judgment in assigning and delegating activities and functions to unlicensed assistive per

sonnel. Activities and functions which are beyond the scope of practice of the licensed practical nurse may not be delegated to unlicensed assistive personnel.

ITEM 2. Amend subrule 6.3(2) as follows:6.3(2) The licensed practical nurse shall participate in the

nursing process, consistent with accepted and prevailing practice, by assisting the registered nurse or physician. A The licensed practical nurse may assist the registered nurse in monitoring, observing and reporting reactions to therapy. The licensed practical nurse may- add intravenous solutionswithout medications to established intravenous sites, regulate the-rate of nonmedicated intravenous solutions and discontinue intravenous-therapy. The licensed practical nurseshall- not perform any procedufe/treatment requiring theknowledge and skill ascribed to the registered nurse, includmg;

a;—The initiation-of intravenous solutions, intravenousmedications and blood components.

k—The administration of medicated intravenous solu-tions;-intravenous medications and blood components.

ft—The-initiation or administration of medications requiring the knowledge or skill level currently ascribed to the registered nurse.

Item 3. Amend rule 655—6.3(152) by adopting the following new subrules 6.3(3) and 6.3(4) and renumbering subrules 6-3(3) to 63(7) as 63(5) to 63(9).

63(3) The licensed practical nurse shall not perform any activity requiring the knowledge and skill ascribed to the registered nurse, including:

a. The initiation of or assessment related to procedures/ therapies requiring the knowledge or skill level ascribed to the registered nurse.

b. The initiation of intravenous solutions, intravenous medications and blood components.

c. The administration of medicated intravenous solutions, intravenous medications and blood components.

d. The initiation or administration of medications requiring the knowledge or skill level currently ascribed to the registered nurse.

63(4) A licensed practical nurse, under the supervision of a registered nurse, may engage in the limited scope of practice of intravenous therapy. In providing the limited scope of therapy, the licensed practical nurse may add intravenous solutions without medications to established peripheral intravenous sites, regulate the rate of nonmedicated intravenous solutions, administer maintenance doses of analgesics via the patient-controlled analgesic pump set at a lock-out interval, and discontinue intravenous therapy. Nursing tasks which may be delegated in a certified end-stage renal dialysis unit by the registered nurse to the licensed practical nurse with documented training include:

a. Initiation and discontinuation of the hemodialysis treatment utilizing an established vascular access.

b. The administration of local anesthetic prior to can- nulation of the peripheral vascular access site.

c. Administration of prescribed dosages of heparin solution or saline solution utilized in the initiation and discontinuation of hemodialysis.

Item 4. Amend renumbered subrule 63(6), paragraphs “a” and “b,” as follows:

a. Community health. (Subrules 6.6(1) and 6.6(3) 6.6(4) are exceptions to the “proximate area” requirement.)

LAB 10/7/98 FILED 753

NURSING BOARD[655](cont’d)

b. School nursing. (Subrule Subrules 6.6(2) and 6.6(3) is an exception are exceptions to the “proximate area” requirement.)

Item 5. Amend rule 655—6.5(152) by adopting the following new subrules 6.5(3), 6.5(4) and 6.5(5):

6.5(3) A licensed practical nurse who has completed a board-approved intravenous therapy certification course offered by a board-approved provider of continuing education shall be permitted to perform, in addition to the functions set forth in subrule 6.3(4), procedures related to the expanded scope of administration of intravenous therapy in a licensed hospital, licensed skilled nursing facility and a certified end- stage renal dialysis unit. The board-approved course shall incorporate the responsibilities of the nurse when providing intravenous therapy to children, adults and elderly adults. When providing intravenous therapy, the licensed practical nurse shall be under the supervision of the registered nurse. Procedures which may be assumed if delegated by the registered nurse are as follows:

a. Initiation of a peripheral intravenous line for continuous or intermittent therapy using an intermittent infusion device or a therapy cannula not to exceed three inches in length.

b. Administration via peripheral lines, after the first dose has been administered by the registered nurse, of premixed electrolyte solutions or premixed vitamin solutions. The solutions must be prepackaged by the manufacturer or premixed and labeled by a registered pharmacist or registered nurse.

c. Administration via peripheral lines, after the first dose has been administered by the registered nurse, of solutions containing potassium chloride that do not exceed 40 meq per liter and at a rate that does not exceed 10 meq per hour. The solutions must be prepackaged by the manufacturer or premixed and labeled by a registered pharmacist or registered nurse.

d. Administration via peripheral lines, after the first dose has been administered by the registered nurse, of intravenous antibiotic solutions prepackaged by the manufacturer or premixed and labeled by a registered pharmacist or registered nurse.

e. Maintenance of the patency of peripheral intravenous lines with heparin irrigation solution or normal saline irrigation solution.

6.5(4) Acts which may not be delegated by the registered nurse to the licensed practical nurse are as follows:

a. Administration of medication by bolus or IV push except maintenance doses of analgesics via a patient-controlled analgesia pump set at a lock-out interval.

b. Administration of blood and blood products; vasodilators, vasopressors, oxytoxics, chemotherapy, colloid therapy, total parenteral nutrition, hypertonic solutions, anticoagulants, antiarrhythmics, and thrombolytics.

c. Initiation of infusion pumps.d. Provision of intravenous therapy to a client under the

age of 12 or any client weighing less than 80 pounds, with the exception of those activities authorized in the limited scope of practice found in subrule 6.3(4).

e. Provision of intravenous therapy in any setting except licensed hospitals, licensed skilled nursing facilities and certified end-stage renal dialysis units with the exception of those activities authorized in the limited scope of practice found in subrule 6.3(4).

6.5(5) To be eligible for intravenous therapy certification, the licensee shall hold a current unrestricted Iowa license and documentation of 2080 hours of practice as a licensed practical nurse.

ITEM 6. Amend rule 655—6.6(152) by adopting the following new subrule 6.6(2) and renumbering subrules 6.6(2) and 6.6(3) as 6.6(3) and 6.6(4):

6.6(2) The licensed practical nurse shall be permitted to provide supportive and restorative care to a specific student in the school setting in accordance with the student’s health plan when under the supervision of and as delegated by the registered nurse employed by the school district.



ARC S385A

PERSONNEL DEPARTMENT[S§1]Adopted and Filed

Pursuant to the authority of Iowa Code section 97B.15, the Iowa Department of Personnel hereby amends Chapter 21, “Iowa Public Employees’ Retirement System,” Iowa Administrative Code.

Notice of Intended Action was published in the Iowa Administrative Bulletin on July 1,1998, as ARC 8126A. No public comment was received on the proposed amendments. In addition, the proposed amendments were simultaneously Adopted and Filed Emergency as ARC 8127A. The following amendments are identical to those published under the Notice of Intended Action and Adopted and Filed Emergency.

1. Subrule 21.6(9) is amended by adopting new contribution rates for the special service groups covered under IPERS; by terminating protection occupation coverage of parole officer III and probation officer III classes as of June 30,1998 (required by 1998 Iowa Acts, House File 2496); by striking references to previous contribution rates; and by changing the state tax treatment of employee contributions from posttax to pretax effective January 1, 1999 (also required by 1998 Iowa Acts, House File 2496).

2. Subrule 21.11(6) is amended to clarify IPERS’ practices regarding the effective date when determining eligibility for retroactive payments.

3. Subrule 21.11(7) is amended to eliminate prorating the final month of benefits payable to a member who dies. The amendment provides that the entire final month is payable to the member and that monthly benefits payable to beneficiaries begin with the next month.

4. Subrule 21.11(9), third unnumbered paragraph, is amended to clarify that a member may be elected to a public office, retire from a different covered position, and assume the public office during the four-month period following retirement without violating the system’s bona fide retirement rules.

5. New subrule 21.24(9) is adopted in order for IPERS to comply with federal legal requirements relating to the purchase of additional service credit.

These amendments become shall become effective November 11,1998, at which time the Adopted and Filed Emergency amendments are hereby rescinded.

These amendments are intended to implement Iowa Code chapter 97B.

EDITOR’S NOTE: Pursuant to recommendation of the Administrative Rules Review Committee published in the

754 FILED LAB 10/7/98

PERSONNEL DEPARTMENT[581](cont’d)

Iowa Administrative Bulletin, September 10,1986, the text of these rules [21.6(9), 21.11, 21.24(9)] is being omitted. These rules are identical to those published under Notice as ARC 8126A, IAB 7/1/98.


[For replacement pages for LAC, see LAC Supplement 10/7/98.]

ARC 8379A

PROFESSIONAL LICENSURE DIVISION [645]

BOARD OF ATHLETIC TRAINING EXAMINERS

Adopted and Filed

Pursuant to the authority of Iowa Code section 147.76, the Iowa Board of Athletic Training Examiners amends Chapter 350, “Athletic Trainer,” Chapter 355, “Petitions for Rule Making,” Chapter 356, “Declaratory Rulings,” Chapter 357, “Agency Procedure for Rule Making,” and Chapter 358, “Public Records and Fair Information Practices,” Iowa Administrative Code.

The amendments provide language converting the existing advisory board for athletic training into full regulatory examining board status.

Notice of Intended Action was published in the July 15, 1998, Iowa Administrative Bulletin as ARC 8153A. A public hearing was held on August 5,1998, from 1 to 3 p.m. in the Fourth Floor Conference Room, Side 1, Lucas State Office Building, Des Moines, Iowa. No written or verbal comments were received. These amendments are identical to the ones published under Notice of Intended Action.

The Board has determined that the amendments will have no impact on small business within the meaning of Iowa Code section 17A.31C.

These amendments were adopted by the Board on September 15,1998.


These amendments are intended to implement Iowa Code chapter 147 as amended by 1998 Iowa Acts, Senate File 2269, and chapters 152D and 272C.

EDITOR’S NOTE: Pursuant to recommendation of the Administrative Rules Review Committee published in the Iowa Administrative Bulletin, September 10, 1986, the text of these amendments [amendments to Chs 350,355 to 358] is being omitted. These amendments are identical to those published under Notice as ARC 8153A, LAB 7/15/98.


[For replacement pages for IAC, see IAC Supplement 10/7/98.]

ARC 8397A


Adopted and Filed

Pursuant to the authority of Iowa Code Supplement section 135.11, subsection 24, as amended by 1998 Iowa Acts, House File 2369, section 1, and 1998 Iowa Acts, House File 2527, section 60, the Iowa Department of Public Health hereby amends Chapter 11, “Acquired Immune Deficiency Syndrome (AIDS),” Iowa Administrative Code.

This action is necessary as a consequence of amendments to Iowa Code Supplement section 135.11, subsection 24, made by 1998 Iowa Acts, House File 2369, and 1998 Iowa Acts, House File 2527.

These new rules describe the procedures to follow for testing a convicted offender for the human immunodeficiency virus pursuant to Iowa Code chapter 709B and the procedures to follow for testing an alleged offender for the human immunodeficiency virus pursuant to Iowa Code chapter 709B. The rules describe procedures for the provision of counseling, health care, and support services to the victim.

Notice of Intended Action was published in the Iowa Administrative Bulletin on July 15, 1998, as ARC 8168A. A public hearing was held August 4, 1998, at 10 a.m. in the Lucas State Office Building. At this hearing there were no individuals who appeared to comment on the proposed rules. These rules are identical to those that were published under Notice of Intended Action.

These rules were adopted by the Board of Health on September 9,1998.

These rules will become effective November 11,1998.These rules are intended to implement 1998 Iowa Acts,

House File 2369, and 1998 Iowa Acts, House File 2527.

Rescind the segment entitled “HIV-Related Tests for Convicted Sexual Assault Offenders and the Victims” which includes rules 641—11.70(7098) through 641—11.73(709B) and adopt the following new segment in lieu thereof:

HIV-RELATED TEST FOR CONVICTED OR ALLEGED SEXUAL-ASSAULT OFFENDERS AND THE VICTIMS

641—11.70(709B) Purpose. The purpose of these rules is to describe procedures to follow for testing of a convicted or alleged offender for the human immunodeficiency virus pursuant to 1998 Iowa Acts, House File 2369, and 1998 Iowa Acts, House File 2527, and to establish procedures to follow to provide for counseling, health care, and support services to the victim.

641—11.71(709B) Definitions. For the purpose of these rules, the following definitions shall apply:

“AIDS” means acquired immune deficiency syndrome as defined by the Centers for Disease Control and Prevention of the United States Department of Health and Human Services.

“Alleged offender” means a person who has been charged with the commission of a sexual assault or a juvenile who has been charged in juvenile court with being a delinquent as a result of actions that would constitute a sexual assault.

“Authorized representative” means an individual authorized by the victim to request an HIV test of a convicted or alleged offender who is any of the following:

LAB 10/7/98 FILED 755

PUBLIC HEALTH DEPARTMENT[641](cont’d)

1. The parent, guardian, or custodian of the victim if the victim is a minor.

2. The physician of the victim.3. The victim counselor or person requested by the vic

tim who is authorized to provide the counseling required pursuant to Iowa Code section 141.22.

4. The victim’s spouse.5. The victim’s legal counsel.“Convicted offender” means a person convicted of a sexu

al assault or a juvenile who has been adjudicated delinquent for an act of sexual assault.

“Department” means the Iowa department of public health.

“Division” means the crime victims assistance division of the office of the attorney general.

“HIV” means the human immunodeficiency virus identified as the causative agent of AIDS.

“HIV test” means a positive result for the HIV antibody, a positive result for HIV nucleic acid, a positive result for p24 antigen, or a positive result for HTV virus isolation.

“Petitioner” means a person who is the victim of a sexual assault which resulted in alleged significant exposure, or the parent, guardian, or custodian of a victim if the victim is a minor, for whom the county attorney files a petition with the district court to require the convicted offender to undergo an HIV test.

“Sexual assault” means sexual abuse as defined in Iowa Code section 709.1, or any other sexual offense by which a victim has allegedly had sufficient contact with a convicted or an alleged offender to be deemed a significant exposure.

“Significant exposure” means contact of the victim’s ruptured or broken skin or mucous membranes with the blood or body fluids, other than tears, saliva, or perspiration, of the convicted or alleged offender. “Significant exposure” is presumed to have occurred when there is a showing that there was penetration of the convicted or alleged offender’s penis into the victim’s vagina or anus, contact between the mouth and genitalia, or contact between the genitalia of the convicted or alleged offender and the genitalia or anus of the victim.

“Victim” means a petitioner or a person who is the victim of a sexual assault which resulted in significant exposure,(Or the parent, guardian, or custodian of such a victim if the victim is a minor, for whom the victim or the peace officer files an application for a search warrant to require the alleged offender to undergo an HIV test. “Victim” includes an alleged victim.

“Victim counselor” means a person who is engaged in a crime victim center as defined in Iowa Code section 236A.1, who is certified as a counselor by the crime victim center, and who has completed at least 20 hours of training provided by the Iowa coalition against sexual assault or a similar agency.

641—11.72(709B) HIV test—convicted or alleged sexual assault offender.

11.72(1) Unless a petitioner chooses to be represented by private counsel, the county attorney shall represent the victim’s interest in all proceedings under Iowa Code chapter 709B.

11.72(2) If a person is convicted of sexual assault or adjudicated delinquent for an act of sexual assault, the county attorney, if requested by the petitioner, shall petition the court for an order requiring the convicted offender to submit to an HIV test, provided that all of the following conditions are met:

a. The sexual assault for which the offender was convicted or adjudicated delinquent included sufficient contact between the victim and the convicted offender to be deemed a significant exposure pursuant to 641—11.71(709B).

b. The authorized representative of the petitioner, the county attorney, or the court sought to obtain written informed consent to the testing from the convicted offender.

c. Written informed consent was not provided by the convicted offender.

11.72(3) If a person is an alleged offender, the county attorney, if requested by the victim, shall make application to the court for the issuance of a search warrant, in accordance with Iowa Code chapter 808, for the purpose of requiring the alleged offender to submit to an HIV test, if all of the following conditions are met:

a. The applicant states that the victim believes that the sexual assault for which the alleged offender is charged included sufficient contact between the victim and the alleged offender to be deemed a significant exposure pursuant to 641—11.71(709B) and states the factual basis for the belief that a significant exposure exists.

b. The authorized representative of the victim, the county attorney, or the court sought to obtain written informed consent to the testing from the alleged offender.

c. Written informed consent was not provided by the alleged offender.

11.72(4) Upon receipt of the petition or application, the court shall:

a. Prior to the scheduling of a hearing, refer the victim for counseling by a victim counselor or a person requested by the victim who is authorized to provide the counseling required pursuant to Iowa Code section 141.22, regarding the nature, reliability and significance of the HIV test and of any test results of the convicted offender. The counselor shall have a certificate of attendance from the department of public health-sponsored workshop on HIV serologic test counseling.

b. Schedule a hearing to be held as soon as is practicable.c. Cause written notice to be served on the convicted or

alleged offender who is the subject of the proceeding, in accordance with the Iowa Rules of Civil Procedure relating to the service of original notice, or if the convicted or alleged offender is represented by legal counsel, provide written notice to the convicted or alleged offender and the convicted or alleged offender’s legal counsel.

d. Provide for the appointment of legal counsel for a convicted or alleged offender if the convicted or alleged offender desires but is financially unable to employ counsel.

e. Furnish legal counsel with copies of the petition or application, written informed consent, if obtained, and copies of all other documents related to the petition or application, including, but not limited to, the charges and orders.

11.72(5) A hearing under these rules shall be conducted in an informal manner consistent with orderly procedure and in accordance with the Iowa Rules of Evidence.

a. The hearing shall be limited in scope to the review of questions of fact only as to the issue of whether the sexual assault for which the offender was convicted or adjudicated delinquent or for which the alleged offender was charged provided sufficient contact between the victim and the convicted or alleged offender to be deemed a significant exposure, and to questions of law.

b. In determining whether the contact should be deemed a significant exposure for a convicted offender, the court shall base the determination on the testimony presented during the proceedings on the sexual assault charge, the minutes

756 FILED LAB 10/7/98


of the testimony or other evidence included in the court record, or if a plea of guilty was entered, based upon the complaint or upon testimony provided during the hearing. In determining whether the contact should be deemed a significant exposure for an alleged offender, the court shall base the determination on the application and the factual basis provided in the application for the belief of the applicant that a significant exposure exists.

c. The victim may testify at the hearing, but shall not be compelled to testify. The court shall not consider the refusal of a victim to testify at the hearing as material to the court’s decision regarding issuance of an order or search warrant requiring testing.

d. The hearing shall be in camera unless the convicted or alleged offender and the petitioner or victim agree to a hearing in open court and the court approves. The report of the hearing proceedings shall be sealed and no report of the proceeding shall be released to the public, except with the permission of all parties and the approval of the court.

e. Stenographic notes or electronic or mechanical recording shall be taken of all court hearings unless waived by the parties.

11.72(6) Following the hearing, the court shall require a convicted or alleged offender to undergo an HIV test only if the petitioner or victim proves all of the following by a preponderance of evidence.

a. The sexual assault constituted a significant exposure.b. An authorized representative of the petitioner, the

county attorney, or the court sought to obtain written informed consent from the convicted or alleged offender.

c. Written informed consent was not provided by the convicted or alleged offender.

11.72(7) A convicted offender who is required to undergo an HIV test may appeal to the court for review of questions of law only, but may appeal questions of fact if the findings of fact are clearly erroneous.641—11.73(709®) Medical examination costs. The cost of a medical examination for the purpose of gathering evidence and the cost of treatment for the purpose of preventing venereal disease shall be paid from the victim compensation fund as established in Iowa Code chapter 709B, and 1998 Iowa Acts, House File 2527, section 55. Information is available from the department of justice, crime victim assistance program, telephone (515)281-5044.641—11.74(7®9B) Testing, reporting, and counseling— penalties.

11.74(1) The physician or other practitioner who orders the test of a convicted or alleged offender for HIV under Iowa Code chapter 709B shall disclose the results of the test to the convicted or alleged offender, and to the victim counselor or a person requested by the victim who is authorized to provide the counseling required pursuant to Iowa Code section 141.22, who shall disclose the results to the petitioner.

11.74(2) All testing under this chapter shall be accompanied by pretest and posttest counseling as required under Iowa Code section 141.22. The department of public health may be contacted for brochures that may assist in meeting the requirements of Iowa Code section 141.22.

11.74(3) Subsequent testing arising out of the same incident of exposure shall be conducted in accordance with the procedural and confidentiality requirements of 641— 11.70(709B) to 641—11.74(709B).

11.74(4) Results of a test performed under 641— 11.70(709B) to 641—11.74(709B), except as provided in subrule 11.74(6), shall be disclosed only to the physician or

other practitioner who orders the test of the convicted or alleged offender, the convicted or alleged offender, the victim, the victim counselor or person requested by the victim who is authorized to provide the counseling required pursuant to Iowa Code section 141.22, the physician of the victim if requested by the victim, the parent, guardian, or custodian of the victim, if the victim is a minor, and the county attorney who filed the petition for the HIV testing under 641— 11.70(709B) to 641—11.74(709B), who may use the results to file charges of criminal transmission of HIV. Results of a test performed under these rules shall not be disclosed to any other person without the written, informed consent of the convicted or alleged offender. A person to whom the results of a test have been disclosed under 641— 11.70(709B) to 641—11.74(709B) is subject to the confidentiality provision of Iowa Code section 141.23, and shall not disclose the results to another person except as authorized by Iowa Code section 141.23, subsection 1.

11.74(5) If HIV testing is ordered under 641— 11.70(709B) to 641—11.74(709B), the court shall also order periodic testing of the convicted offender during the period of incarceration, probation, or parole or of the alleged offender during a period of six months following the initial test if the physician or other practitioner who ordered the initial test of the convicted or alleged offender certifies that, based upon prevailing scientific opinion regarding the maximum period during which the results of an HIV test may be negative for a person after being HIV-infected, additional testing is necessary to determine whether the convicted or alleged offender was HIV-infected at the time the sexual assault or alleged sexual assault was perpetrated. The results of the test conducted pursuant to subrule 11.74(6) shall be released only to the physician or other practitioner who orders the test of the convicted or alleged offender, the convicted or alleged offender, the victim counselor or person requested by the victim who is authorized to provide the counseling required pursuant to Iowa Code section 141.22, who shall disclose the results to the petitioner, the physician of the victim if requested by the victim and the county attorney who may use the results as evidence in the prosecution of the sexual assault or in the prosecution of the offense of criminal transmission of HIV.

11.74(6) The court shall not consider the disclosure of an alleged offender’s serostatus to an alleged victim, prior to conviction, as a basis for a reduced plea or reduced sentence.

11.74(7) The fact that an HIV test was performed under 641—11.70(709B) to 641—11.74(709B) and the results of the tests shall not be included in the convicted offender’s medical or criminal record unless otherwise included in department of corrections records.

11.74(8) The fact that an HIV test was performed under 641—11.70(709B) to 641—11.74(709B) and the results of the test shall not be used as a basis for further prosecution of a convicted offender in relation to the incident which is the subject of the testing, to enhance punishments, or to influence sentencing.

11.74(9) If the serologic status of a convicted offender, which is conveyed to the victim, is based upon an HIV test other than a test which is authorized as a result of the procedures established in 641—11.70(709B) to 641— 11.74(709B), legal protections which attach to such testing shall be the same as those which attach to an initial test under 641—11.70(709B) to 641—11.74(709B), and the rights to a predisclosure hearing and to appeal provided under 1998 Iowa Acts, House File 2527, section 35, shall apply.

LAB 10/7/98 FILED 757


11.74(10) HIV testing required under 641—11.70(709B) to 641—11.74(709B) shall be conducted by the state hygienic laboratory.

11.74(11) Notwithstanding the provision of these rules requiring initial testing, if a petition is filed with the court under 1998 Iowa Acts, House File 2527, section 35, requesting an order for testing and the order is granted, and if a test has previously been performed on the convicted offender while under the control of the department of corrections, the test results shall be provided in lieu of the performance of an initial test of the convicted offender, in accordance with 641— 11.70(709B) to 641—11.74(709B).

11.74(12) Test results shall not be disclosed to a convicted offender who elects against disclosure.

11.74(13) In addition to the counseling received by a victim, referral to appropriate health care and support services shall be provided. Referral information is available at state alternate test sites. Alternate test site information is available from the Iowa department of public health, STD/HTV prevention program, telephone (515)281-4936.

11.74(14) In addition to persons to whom disclosure of the results of a convicted or alleged offender’s HTV test results is authorized under these rules, the victim may also disclose the results to the victim’s spouse, persons with whom tne victim has engaged in vaginal, anal, or oral intercourse subsequent to the sexual assault, or members of the victim’s family within the third degree of consanguinity.

11.74(15) A person to whom disclosure of a convicted offender’s HIV test results is authorized under these rules shall not disclose the results to any other person for whom disclosure is not authorized under these rules. A person who intentionally or recklessly makes an unauthorized disclosure in violation of this subrule is subject to a civil penalty of $1000. The attorney general or the attorney general’s designee may maintain a civil action to enforce these rules. Proceedings maintained under this subrule shall provide for the anonymity of the test subject, and all documentation shall be maintained in a confidential manner.

These rules are intended to implement 1998 Iowa Acts, House File 2527, and 1998 Iowa Acts, House File 2369.



ARC 8401A


Adopted and Filed

Pursuant to the authority of Iowa Code section 135.11(13) and 1998 Iowa Acts, Senate File 2280, section 5(4)“c,” the Iowa Department of Public Health hereby rescinds Chapter 79, “Public Health Nursing,” and adopts a new Chapter 79 with the same title.

These rules describe the standards to be used in the provision of services to low-income and elderly persons to avoid inappropriate institutionalization and to prevent illness and promote health and wellness in communities. These rules meet the requirements of 1998 Iowa Acts, Senate File 2280, sections 5(4)“c”(l) and (4).

Notice of Intended Action was published in the July 15, 1998, Iowa Administrative Bulletin as ARC 8171A. A public hearing was conducted on August 4,1998, using the Iowa Communications Network, with 14 in attendance at seven of ten available sites. Written and oral comments were received from eight people representing public health nursing contractor agencies. Many comments received supported the rules as written; however, the following changes were made in response to comments received:

In the definition of “Public health nurse,” the Department deleted “(in which a course in community health nursing must be completed)” to respond partially to requests to reduce the noticed standard for a public health nurse. Elevated education for public health nurse is supported by the Department as a standard for the high level of independent functioning required for population-based and public health services.

A definition for “Population-based services” was added at the request of contractors.

In 79.9(4) the words “for home care services” were deleted to allow state funds as last resort to apply to any and all public health nursing activities provided.

These rules will become effective on November 11,1998.These rules are intended to implement Iowa Code section

135.11.The following amendment is adopted.

Rescind 641—Chapter 79 and insert the following new chapter in lieu thereof:

CHAPTER 79PUBLIC HEALTH NURSING

641—79.1(135) Program purpose. The purposes of the public health nursing program are the prevention of illness, the promotion of health and wellness in the community and the prevention or reduction of inappropriate institutionalization of low-income and elderly persons.

Public health nursing synthesizes the body of knowledge from the public health sciences and professional nursing theories for the purpose of impro ving the health of the entire community. The dominant responsibility is the population as a whole. Therefore, nursing directed holistically to individuals, families, or groups contributes to the health of the total population. This goal lies at the heart of primary prevention, health promotion and protection, and is the foundation for public health nursing practice.

641—79.2(135) Definitions. For the purpose of these rules, unless otherwise defined, the following definitions apply:

“Administrative expense” means general overall administrative expenses not specific to the program. No more than 5 percent of the state funds received shall be used for administrative expenses.

“Board of health” means a county, city or district board of health as defined in Iowa Code section 137.2.

“Contractor” means a board of health or board of supervisors as agreed upon by the county board of supervisors and any local boards of health in the county.

“Core public health functions” means the functions of community health assessment, policy development, and assurance.

1. Assessment: regular collection, analysis, interpretation, and communication of information about health conditions, risks, and assets in a community.

2. Policy development: development, implementation, and evaluation of plans and policies, for public health in general and priority health needs in particular, in a manner that

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incorporates scientific information and community values and in accordance with state public health policy.

3. Assurance: ensuring, by encouragement, regulation, or direct action, that programs and interventions that maintain and improve health are carried out.


“Disease and disability client” means a person who is receiving nursing intervention under a specified medical diagnosis^) and who has a plan of care from a licensed physician.

“Elderly” means persons 60 years of age and over.“Essential public health services” means those activities

carried out by public health entities that fulfill the core functions.

“Health and wellness” means a state of well-being, which includes soundness of mind, body, and spirit, and the presence of a positive capacity to develop one’s potential and to lead an energetic, fulfilling, and productive life.

“Health promotion” means teaching or nursing intervention that emphasizes self and environmental awareness and promotes a life-style change that will result in optimal health and wellness.

“Income” means all sources of revenue for the client, spouse and dependent members of the household.

“Low income” means a person whose income is not greater than the current federal Supplemental Security Income guidelines and whose resources are not greater than $10,000.

“Nonprofit” means an entity that meets the requirements for tax-exempt status under the United States Internal Revenue Code.

“Population-based services” means activities provided by public health nursing, for problems defined and solutions proposed as concerned with the status of population groups and their environment, as opposed to individuals.

“Public health nurse” means a registered nurse who is licensed by the Iowa board of nursing and who has a baccalaureate degree in nursing or related health or human service area or has completed a community health nursing course from a baccalaureate program in an accredited college or university. The public health nurse has knowledge of prevention, health promotion and community health nursing and public health concepts.

“Quality assurance” means a method of review using the following process to ensure that quality care is being delivered:

1. Comparison of practice against written criteria;2. Identification of strengths, deficiencies, and opportu

nities for improvement; and3. Introduction of changes in the system based on infor

mation identified.“Resources” means assets owned by a person that the per

son is not legally restricted from using and that could be converted to cash to be used for support and maintenance.

“Skilled nursing care” means services that require the skills of a licensed registered nurse according to 655— Chapter 6, Iowa Administrative Code.

“Sliding fee scale” means a scale of client fee responsibility based on the person’s ability to pay all or a portion of the cost of service.

641—79.3(135) Public health nursing responsibility.Public health nurses are responsible for providing leadership to safeguard the health and wellness of the community. This responsibility is met through participation in the implementation of the core public health functions: assessment,

policy development and assurance and the essential public health services.

641—79.4(135) Appropriation.79.4(1) Formula. The appropriation to each county is de

termined by the following formula. One-fourth of the total amount to be allocated shall be divided so that an equal amount is available for use in each county in the state. Three-fourths of the total amount to be allocated shall be divided so that the share available for use in each county is proportionate to the number of elderly and low-income persons living in that county in relation to the total number of elderly and low-income persons living in the state.

79.4(2) Reallocation process. Annually, by June 1, the department will determine the amount of unused funds from contracts with counties. If the unallocated pool is $50,000 or more, it shall be reallocated to the counties in substantially the same manner as the original allocations. If the unallocated pool is less than $50,000 for the fiscal year, the department may allocate the moneys to counties with demonstrated special needs for public health nursing.

641—79.5(135) Utilization of appropriation. The contractor may choose to utilize the funds directly or through subcontracts with governmental or nonprofit agencies. When the services are not provided directly by the contractor, the assignment of responsibilities to each agency must be clearly documented in a contract. All such subcontracts must be approved in advance by the department. When the services are provided by more than one agency, the contractor shall evaluate the degree to which the combination of the services meets the identified public health needs of the community. No more than 5 percent of the state funds received shall be used for administrative expenses.

79.5(1) Priorities. Utilization of state funds shall be based on the identified needs and assets of the target populations. Emphasis shall be placed on core public health functions and essential services. Priorities of service are communicable disease control, risk reduction and health promotion, and assurance of care for clients with disease or disability.

79.5(2) Alternate plan. A county may submit to the department a plan for an alternate utilization of the funding which provides for ensuring the delivery of existing services and the essential public health services based on an assessment of community needs and targeted populations to be served under the alternate plan. The department may establish demonstration projects which provide for an alternate allocation of funds based upon the proposed plan to provide essential public health services as determined by the community health assessment and targeted populations to be served. The request for an alternate plan and demonstration project shall be included in the grant application.

641—79.6(135) Client eligibility. Every Iowan shall be eligible for nursing service when assessment identifies the need for such service and adequate resources exist to provide the service. Each contractor shall have policies for admission and discharge of clients.

641—79.7(135) Contractor requirements. In order to receive these state funds, the contractor shall meet the following requirements:

1. Operate in conformity with federal, state, and local laws and regulations.

2. Employ an administrator to whom authority and responsibility for overall administration are delegated.

3. Ensure a personnel management system.

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PUBLIC HEALTH DEPARTMENT641](cont’d)

4. Ensure that skilled nursing care to disease and disability clients is provided by a home health agency certified by the health insurance benefits program (Medicare).

5. Maintain administrative and fiscal accountability through contractor records which include, at a minimum, policies, board minutes and reports, service statistics, and accounting records which indicate all accrued revenue, income and expenses. The contractor shall submit statistical reports identified in the contract from the department.

6. Maintain clinical records appropriate to the level of service for each client who receives public health nursing service. The contractor shall provide for appropriate safety and security of the clinical records.

7. Provide authorized representatives of the department access to all administrative, fiscal, personnel, and client records. The clinical record is considered confidential and the department representatives will respect that confidentiality.

8. Ensure program standards which include outcomes, objectives and priorities for all services.

9. Ensure that population-based services are supervised by a public health nurse within two years of the effective date of these rules.

10. Provide services based on identified assets and priority needs of the community.641—79.8(135) Quality assurance program. Each contractor shall have a written plan for quality assurance for the program. Quality assurance shall include but is not limited to provider qualification and performance, program evaluation, and plan for quality improvement.641—79.9(135) Billing services to state grant These grant funds shall be billed at the lower of the cost or usual charge as approved in the grant contract. Clients whose services are not covered by third-party reimbursement shall be billed according to the contractor’s sliding fee scale. The state may be billed the portion not covered by the client’s fee up to the approved contract rate. The specific process for expenditure and billing of state funds shall be described in the contract. Services charged to and paid or credited by another third- party payer shall not be vouched to state funds.

79.9(1) Cost analysis. Each contractor shall complete, at least annually, a cost analysis using a cost methodology approved by the department. Reimbursement by the department to the contractor for the fiscal year shall be based on the state-approved rate and contractual conditions.

79.9(2) Sliding fee scale. A full fee and a sliding fee scale based on contractor charge shall be established and used for those persons able to pay all or a part of the cost of service. Income and resources shall be considered in the application of the sliding fee scale. A client whose income is at or above 185 percent of the federal poverty level shall be charged a fee.

Additional circumstances beyond basic living expenses may be taken into account according to contractor policy when determining the client fee. The placement on the sliding fee scale shall be determined before service begins and shall be reviewed at least annually. Payments received from clients based on sliding fee scales and donations shall be used to support nursing services.

79.9(3) No fee service. A low-income person as defined in these rules shall be provided the service at no fee. For each additional member of the household, the annual income shall be increased according to current social security income guidelines.

79.9(4) Funder of last resort. The state shall not be billed for services eligible for third-party reimbursement, e.g., Medicare, Medicaid, or insurance, or for the contractor cost

above the allowed reimbursement from the third-party payer. Contractors shall review all funding options available before utilizing state grant funding.

641—79.10(135) State responsibilities. Technical assistance and consultation will be provided to the contractor by the regional community health consultants of the community services bureau of the Iowa department of public health. Additional technical assistance and consultation will be available from the chief of the community services bureau, other bureaus of the family and community health division and other divisions of the department.

641—79.11(135) Right to appeal.79.11(1) Local appeal. All contractors shall have a writ

ten local procedure to hear appeals. Whenever a contractor denies, reduces or terminates services eligible to be funded by the state grant against the wishes of a participant, the contractor shall notify the participant of the action, of the reason for the action, and of the participant’s right to appeal. Service need not be provided during the appeal process. The local procedure shall at a minimum include the method of notification of the right to appeal, the procedure for conducting the appeal, the time frame limits for each step, and the method of notification of the outcome of the local appeal and notification of the participant’s right to appeal to the state. Notifications of the outcome of the local appeal shall include the facts used to reach a decision and the conclusions drawn from the facts to support the local contractor decision. The written appeals procedure and the record of appeals filed (including the record and disposition of each) shall be available for inspection by authorized Iowa department of public health representatives.

79.11(2) Appeal to department. If a participant is dissatisfied with the decision of the local appeal, the participant may appeal to the state. The appeal shall be made in writing by certified mail, return receipt requested, to the Division Director, Division of Family and Community Health, Iowa Department of Public Health, Lucas State Office Building, Des Moines, Iowa 50319-0075, within 15 days following the local contractor’s appeal decision.

79.11(3) Department review. The department shall evaluate the appeal based upon the merits of the local appeal documentation. A decision affirming, reversing, or modifying the local appeal decision will be issued by the department within ten days of the receipt of the appeal. The decision shall be in writing and shall be sent by certified mail, return receipt requested, to the participant and the contractor.

79.11(4) Further appeal. The department’s decision may be appealed by submitting an appeal, within ten days of the receipt of the department decision, to the Division Director, Division of Family and Community Health, Iowa Department of Public Health, Lucas State Office Building, Des Moines, Iowa 50319-0075. Upon receipt of an appeal that meets contested case status, the department shall forward the appeal within five working days to the department of inspections and appeals pursuant to the rules adopted by that agency regarding the transmission of contested cases. The continued process for appeal shall be governed by 641—Chapter 173, Iowa Administrative Code.

These rules are intended to implement Iowa Code section 135.11(13).



760 FILED IAB 10/7/98

ARC 8400A


Adopted and Filed

Pursuant to the authority of Iowa Code sections 10A.202(l)“g,” 10A.402(4), and 135.11(13) and 1998 Iowa Acts, Senate File 2280, section 5, subsection 4, paragraph “c,” the Iowa Department of Public Health hereby rescinds Chapter 80, “Home Care Aide,” Iowa Administrative Code, and adopts a new chapter with the same title.

These rules describe the standards to be used in the provision of services to low-income persons and the elderly to avoid inappropriate institutionalization and to families to preserve the family. The rules meet the requirements of 1998 Iowa Acts, Senate File 2280, section 5(4)“c”(2) and (4).

Notice of Intended Action was published in the July 15, 1998, Iowa Administrative Bulletin as ARC 8170A. A public hearing was conducted on August 4,1998, using the Iowa Communications Network, with 14 persons attending at seven of ten available sites. Written and oral comments were received from nine people representing home care aide contractor agencies and a county board of supervisors. Most of the comments received were supportive of the rules as written. In addition, a request for clarification of eligibility implications was made and a concern regarding a reduction of the educational requirements for the paraprofessional was shared. Since local contractors can define eligibility and can establish higher educational requirements for their parapro- fessionals, no changes were made to the rules in response to this concern. These rules are identical to those published under Notice of Intended Action.

These rules were approved during the regular meeting of the State Board of Health on September 9, 1998.

These rules will become effective on November 11,1998.These rules are intended to implement Iowa Code sections

10A.202(l)“g,” 10A.402(4), and 135.11(15) and 1998 Iowa Acts, Senate File 2280, section 5, subsection 4, paragraph “c.”


Rescind 641—Chapter 80 and adopt the following new chapter in lieu thereof:

CHAPTER 80 HOME CARE AIDE

641—80.1(135) Program purpose. The purposes of home care aide service are to avoid inappropriate institutionalization of individuals and to preserve families through the provision of supportive services by trained and supervised para- professionals. The requirements and criteria for home care aide service in this chapter also apply to chore service except where separate requirements are specified.

641—80.2(135) Definitions. For the purpose of these rules, unless otherwise defined, the following definitions apply:

“Administration” means the activities required to operate and manage an organization. These activities include but are not limited to community and program planning, financial management, office management, personnel management, and quality assurance activities.


“Case management” means assessment of the client’s need for service, development of the plan of care, written assignment of home care aide duties which includes the frequency of task performance and the frequency and length of visits, assignment of the home care aide to the case, supervision of the home care aide’s performance on the case, review of the home care aide’s progress notes, appropriate referrals, and appropriate reassessment activities.

“Chore program” means services provided to individuals or families who, due to incapacity or illness, are unable to perform certain home maintenance functions. The services include but are not limited to yard work such as mowing lawns, raking leaves, and shoveling walks; window and door maintenance such as hanging screens, windows and doors, replacing windowpanes, and washing windows, and doing minor repairs to walls, floors, stairs, railings and handles. It also includes heavy housecleaning which includes cleaning attics or basements to remove fire hazards, moving heavy furniture, extensive wall washing, floor care, painting, and trash removal.

“Client” means an individual or family receiving home care aide service which is supported wholly or in part by the state home care aide appropriation.


“Core public health functions” means the functions of community health assessment, policy development, and assurance.


2. Policy development: development, implementation, and evaluation of plans and policies, for public health in general and priority health needs in particular, in a manner that incorporates scientific information and community values and in accordance with state public health policy.

3. Assurance: ensuring by encouragement, regulation, or direct action that programs and interventions that maintain and improve health are carried out.

“Court-ordered services” means those child protective services which have been ordered by the juvenile court.


“Direct service time” means the time spent by the home care aide in carrying out assigned tasks in the client’s place of residence or specific client-related services outside the place of residence in accordance with the plan of care; or for child protective services, for time spent in court when the home care aide has been subpoenaed to testify and up to one-half hour for up to three times per admission when the client misses a scheduled home care aide appointment as long as department procedure is followed; and may include the time spent by the home care aide documenting service provided.

“Elderly” means persons 60 years of age and over.“Essential public health services” means those activities

carried out by public health entities that fulfill the core functions.

“Home care aide” means a trained and supervised paraprofessional who provides services which range from basic housekeeping to complex personal care in accordance with these rules.

“Home care aide program” means services intended to enhance the capacity of household members to attain or maintain the independence of the household members and provided by trained and supervised workers to individuals or families who, due to the absence, incapacity or limitations of

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PUBLIC HEALTH DEPAKTMENT[641](cont’d)

the usual homemaker, are experiencing stress or crisis. The services include but are not limited to family preservation, personal care, providing information and assistance, household management, meal preparation, housekeeping, family management, child care, money management, consumer education, essential shopping, transportation and respite care.

“Home helper” means a person who assists self-directing clients with environmental services such as simple housekeeping and errands in order to preserve a safe, sanitary home. The home helper shall not provide any personal care, physical assistance, or meal preparation.

“Income” means all sources of revenue for the client, spouse and dependent members of the household.

“Low income” means a person whose income is not greater than the current federal Supplemental Security Income guidelines and whose resources are not greater than $10,000.

“Nonprofit” means an entity that meets the requirements for tax-exempt status under the United States Internal Revenue Code.

“Protective services” means those home care aide services intended to stabilize a child’s or adult’s residential environment and relationships with relatives, caretakers and other persons and household members in order to alleviate a situation involving abuse or neglect or to otherwise protect the child or adult from a threat of abuse or neglect. It also includes services intended to prevent situations which could lead to abuse or neglect of a child or adult when a definite potential for abuse or neglect exists.




mation identified.“Resources” means assets owned by a person that the per

son is not legally restricted from using and that could be converted to cash to be used for support and maintenance.

“Service administration” means administrative supervision of the home care aide, which includes recruitment and hiring, scheduling, evaluation, discipline, and developing in- service training; completion of reports; and interagency and intra-agency coordination.

“Sliding fee scale” means a scale of client fee responsibility based on the person’s ability to pay all or a portion of the cost of service.

641—80.3(135) Home care aide program responsibility. Home care aide program staff are responsible for participating in activities to safeguard the health and wellness of the community. This responsibility is met through participation in the implementation of the core public health functions: assessment, policy development and assurance and the essential public health services.

641—80.4(135) Appropriation.80.4(1) Formula. The appropriation to each county is de

termined by the following formula. Fifteen percent of the total allocation shall be divided so that an equal amount is available for use in each county in the state. The following percentages of the remaining amount shall be allocated to each county according to that county’s proportion of state residents with the following demographic characteristics:

1. Sixty percent according to the number of elderly persons living in the county,

2. Twenty percent according to the number of persons below the poverty level living in the county, and

3. Twenty percent according to the number of substantiated cases of child abuse in the county during the three most recent years for which data is available.

The amount appropriated for court-ordered home care aide services is part of the 20 percent allocated based on the number of substantiated cases of child abuse. Funding for services ordered by juvenile court is allocated based on the substantiated child abuse portion of the formula, past utilization and the availability of funds. The department reserves the right to reallocate court-ordered funds at any time during the contract year.

A maximum of 15 percent of the county’s allocation may be used to provide chore services when identified as part of the proposal.

80.4(2) Reallocation process. Annually, by February 15, the department will determine the amount of excess funds from contracts with counties. The department shall also review the first ten months’ expenditures for each county in May of the fiscal year to determine if any counties possess contracted funds which they do not anticipate spending. If such funds are identified and the county agrees to release the funds, the released funds will be considered a new reallocation pool. Annually, by June 1, the department may reallocate funds from this new reallocation pool to those counties that have experienced a high utilization of protective service hours for children and dependent adults.

641—80.5(135) Utilization of appropriation. The contractor may choose to utilize the funds directly or through subcontracts with governmental or nonprofit agencies. When the services are not provided directly by the contractor, the assignment of responsibilities to each agency must be clearly documented in a contract. All such subcontracts must be approved in advance by the department. When the services are provided by more than one agency, the contractor shall evaluate the degree to which the combination of the services meets the identified public health needs of the community.

80.5(1) Priorities. Utilization of state funds shall be based on the identified needs and assets of the target populations. Emphasis shall be placed on the core public health functions and the essential public health services. Service priorities include child and adult protective services (preventative and court-ordered), and home care aide services, which reduce, delay or prevent institutionalization.


641—80.6(135) Client eligibility. Every Iowan shall be eligible for home care aide service when assessment identifies the need for such service and adequate contractor resources exist to provide the service. Each contractor shall have written criteria for accepting and discharging home care aide service clients. Criteria shall ensure the provision of this service to children or adults and their families whenever this service

762 FILED LAB 10/7/98


is ordered by the court and may involve such factors as geographic area, social, health and environmental needs, hours of service, crisis or emergency services, safety of the home environment and others.641—80.7(135) Contractor requirements. In order to receive these state funds, a contractor shall meet the following requirements:



3. Ensure a personnel management system.4. Maintain administrative and fiscal accountability

through contractor records which include, at a minimum, policies, board minutes and reports, service statistics, and accounting records which indicate all accrued revenue, income and expenses. The contractor shall submit statistical reports identified by annual contract from the department.

5. Maintain client records appropriate to the level of service for each client or family who is provided home care aide or chore service. The contractor shall provide for appropriate safety and security of the records.

6. Provide authorized representatives of the department access to all administrative, fiscal, personnel, and client records. The client record is considered confidential and department representatives will respect that confidentiality.


8. Provide services based on identified assets and priority needs of the community.

9. Pay the employer’s contribution of social security and provide workers’ compensation coverage for persons providing direct home care aide service and meet any other applicable legal requirements of an employer-employee relationship.641—80.8(135) Training and competency. The contractor shall ensure that each home helper/home care aide has completed adequate training and demonstrated competency for each task assigned. The required training shall fit one of the patterns set out in 80.8(1) to 80.8(3). Training shall be equivalent in content and depth to the most recent edition of “A Model Curriculum and Teaching Guide for the Instruction of the Homemaker-Home Health Aide,” available from the Foundation for Hospice and Homecare, 513 C Street N.E., Washington, D.C. 20002.

80.8(1) Home helper. All of the following training units shall be completed before any home helper assignment is made:

Orientation to home care services 4.0 hoursCommunication 2.0 hoursUnderstanding basic human needs 2.0 hoursMaintaining a clean, safe

and healthy environment 2.0 hoursInfection control in the home 2.0 hoursEmergency procedures 1.0 hour

Total 13.0 hours80.8(2) Home care aide. The home care aide training re

quirements may be met by:a. Completion of the 60-hour training according to the

“Model Curriculum,” orb. Completion of a certified nursing assistant course and

12 to 13 hours of training to include the following:Role of the home care aide 4.0 hoursOrganization policy and procedures 4.0 hoursInfection control 2.0 hours

Dependent adult abuse Child abuse if working with

families with children Total

2.0 hours

1.0 hour 13.0 hours

orc. Completion of training as set forth in the national

training standards for HCA I, II, or III as recommended by the National Association for Home Care.

80.8(3) Protective service home care aide. A home care aide, who provides only protective services to children and their families and who has not completed home care aide training, shall complete a specialized training program equivalent in content and depth to the following units before any protective assignment is made.

Protective Service Overview: 4.0 hoursLegal definitionsDependent adult/child abuse reporter training Types of servicesTeam approach to protective services

Developing Relations with the Family: 5.0 hoursIdentify ways to meet family needs Communication skills/roadblocks Teaching others

Family Dynamics: 12.0 hoursDynamics conducive to abuse/neglect Basic human needs Mental health/mental illness Working with disabilities

Developing Parenting Skills: 17.0 hoursCommunity Resources: 2.0 hours

Total 40.0 hours80.8(4) Professional staff as providers of home care aide

services. An individual who is in the process of receiving or has completed the training required for an LPN or RN, or who has received an associate’s degree or greater in social work, sociology, home economics or other health or human service field may be assigned to provide home care aide service if the following conditions are met:

a. Placement is appropriate to prior training.b. Orientation to home care is conducted, which in

cludes adaptation of the individual’s knowledge and skills from prior education to the home setting and to the role of the home care aide.

A person qualified to be a case manager/supervisor of home care aide services may provide services as appropriate without additional training providing that criteria in 80.9(2) are met.

80.8(5) In-service training. In-service training relevant to appropriate clients and assignments shall be provided. Hours of in-service shall be prorated for individuals who do not work a complete calendar year as described for each level.

a. A home helper shall complete three hours of in- service training per calendar year, prorated as one hour of in- service for each four complete calendar months of employment.

b. A home care aide, a protective service home care aide, or licensed professional working as a home care aide shall complete 12 hours of in-service training per calendar year, prorated as 1 hour of in-service for each complete calendar month of employment.

80.8(6) Chore provider training and supervision. The contractor shall ensure that each chore provider has adequate skill for each assignment. The contractor shall also provide sufficient supervision to ensure the tasks are completed correctly and efficiently.

LAB 10/7/98 FILED 763


641—80.9(135) Case management and service administration. Case management/supervision of service as defined in this chapter shall be provided in every case by a qualified case manager or a related professional person.

80.9(1) The contractor shall establish policies and procedures for case management and supervision of client service.

80.9(2) Education, experience and special qualifications for individuals performing case management and service administration are as follows:

a. A case manager and service administrator shall possess a bachelor’s degree in social work, sociology, home economics, education or other health or human service field or a license as a registered nurse or social worker.

b. A licensed practical nurse may provide case management and service administration if all the conditions of nursing board 655—subrule 6.6(1), Iowa Administrative Code, are met.

c. An individual who has provided home care aide case management or service administration prior to September 7, 1994, shall be considered qualified to continue in that position.

d. Case management and service administration activities may be delegated to an individual who is trained as a home care aide and has an equivalent of two years’ full-time experience as long as a qualified person retains responsibility for supervising this individual.

e. The specific component in service administration of scheduling may be delegated to an individual not possessing these qualifications as long as the qualified person retains responsibility for supervising this individual.

641—80.10(135) Quality assurance program. Each contractor shall have a written plan for quality assurance for the program. Quality assurance shall include but is not limited to provider qualification and performance, program evaluation, and plan for quality improvement.

641—80.11(135) Court-ordered services.80.11(1) Home care aide protective services ordered by a

juvenile court shall be billed to the state home care aide grant whenever these services are not eligible for reimbursement by other funding sources and, to the extent that funding from the department is available, when there is appropriate documentation that services meet the following criteria:

a. Home care aide service is named in the court order, or the court orders services as determined by the department of human services case plan. The department of human services case plan shall identify home care aide service.

b. Services are limited to the following:(1) Teaching parents about:1. Child behavior management including methods of

discipline.2. Child development and nurturing.3. Child nutrition, meal planning, shopping and meal

preparation.4. Skill development.5. Maintenance of a clean and safe home environment

including laundry.6. Money management (excluding protective payee as

the only service).7. Basic physical care and hygiene of children.8. Obtaining routine and emergency medical care.9. Child safety and supervision.10. Daily schedule/routines.(2) Supervising visits with parent, guardian or prospec

tive custodian for skilled observation, documentation, and

reporting when accompanied by teaching, coaching, and intervening as needed.

(3) Transportation secondary to teaching parents or supervising visits. Transportation shall not be the only service provided.

c. A conference on each case is held at least once every six months between the case manager and the local department of human services or the juvenile court officer to consider the manner in which home care aide protective service is meeting the goals of the court order or case permanency plan and is coordinated with other involved service providers.

80.11(2) Mediation of disputes. If a local department of human services worker or district or juvenile court requests service for a child or adult protective service client, and the contractor assessment is that the service is not needed or less service is needed than was requested, the local entities shall attempt to resolve the difference. If that is not possible, the disagreement shall be reported by telephone to the Iowa department of public health, division of family and community health.

Division staff shall provide technical assistance to attempt to resolve the difference by working with the district or juvenile court and, if appropriate, the department of human services.

641—80.12(135) Billing services to state grant. These grant funds shall be billed at the lower of the cost or usual charge as approved in the grant contract. Clients whose services are not covered by third-party reimbursement shall be billed according to the local contractor’s sliding fee scale. The state may be billed the portion not covered by the client’s fee up to the approved contract rate. The specific process for expenditure and billing of state funds shall be described in the administrative contract.

80.12(1) Cost analysis. Each contractor shall complete, at least annually, a cost analysis using a cost methodology approved by the department. Reimbursement by the department to the contractor for the fiscal year shall be based on the state-approved rate and contractual conditions. Each contractor providing services with these funds shall maintain direct client service time at 70 percent or more of the home care aide’s paid time and ensure that not more than 35 percent of the total cost of the service be for the combined costs for service administration and contractor administration.

80.12(2) Sliding fee scale. A full fee and a sliding fee scale based on contractor charge shall be established and used for those persons able to pay all or a part of the cost of service. Income and resources shall be considered in the application of the sliding fee scale. A client whose income is at or above 185 percent of the federal poverty level shall be charged a fee.

Additional circumstances beyond basic living (food, clothing and shelter) expenses may be taken into account according to contractor policy when determining the client fee. The placement on the sliding fee scale shall be determined before service begins and shall be reviewed at least annually. Payments received from clients based on the sliding fee scale shall be used to support home care aide/chore service.

80.12(3) No fee service. A low-income person as defined in these rules shall be provided the service at no fee. For each additional member of the household, the annual income shall be increased according to current social security income guidelines.

Service provided to children or adults to alleviate a situation where abuse or neglect is founded or under investigation shall be provided at no fee to the client/family.

764 FILED IAB 10/7/98


80.12(4) Funder of last resort. The state shall not be billed for service eligible for third-party reimbursement, e.g., Medicare, Medicaid, or insurance, or for the contractor cost above the allowed reimbursement from the third-party payer. Services charged to and paid or credited by another third-party payer shall not be vouched to state funds.641—80.13(135) State responsibilities. Technical assistance and consultation will be provided to the contractor by the regional community health consultants of the community services bureau of the Iowa department of public health. Additional technical assistance and consultation will be available from the chief of the community services bureau, other bureaus of the family and community health division and other divisions of the department.641—80.14(135) Right to appeal.

80.14(1) Local appeal. All contractors shall have a written local procedure to hear appeals. Whenever a contractor denies, reduces or terminates services eligible to be funded by the state grant against the wishes of a participant, the contractor shall notify the participant of the action, of the reason for the action, and of the participant’s right to appeal. Service need not be provided during the appeal process. The local procedure shall at a minimum include the method of notification of the right to appeal, the procedure for conducting the appeal, the time frame limits for each step, and the method of notification of the outcome of the local appeal and notification of the participant’s right to appeal to the state. Notifications of the outcome of the local appeal shall include the facts used to reach a decision and the conclusions drawn from the facts to support the local contractor decision. The written appeals procedure and the record of appeals filed (including the record and disposition of each) shall be available for inspection by authorized Iowa department of public health representatives.



80.14(4) Further appeal. The department’s decision may be appealed by submitting an appeal, within ten days of the receipt of the department decision, to the Division Director, Division of Family and Community Health, Iowa Department of Public Health, Lucas State Office Building, Des Moines, Iowa 50319-0075. Upon receipt of an appeal that meets contested case status, the department shall forward the appeal within five working days to the department of inspections and appeals pursuant to the rules adopted by that agency regarding the transmission of contested cases. The continued process for appeal shall be governed by 641—Chapter 173, Iowa Administrative Code.

These rules are intended to implement Iowa Code sections 10A.202(l)“g,” 10A.402(4), and 135.11(15) and 1998 Iowa

Acts, Senate File 2280, section 5, subsection 4, paragraph “c.”



ARC 83$>9>A

PUBLIC HEALTH DEPARTMENT^!]

Adopted amid Filed

Pursuant to the authority of Iowa Code section 135.11 and 1998 Iowa Acts, Senate File 2280, section 5(4)“c,” the Iowa Department of Public Health hereby rescinds Chapter 83, “Well Elderly Screening Clinics,” and adopts a new Chapter 83, “Iowa Senior Health Program,” Iowa Administrative Code.

These rules establish standards to be used in the provision of services to older adults. The rules meet the requirement of 1998 Iowa Acts, Senate File 2280, section 5(4)“c.”

Notice of Intended Action was published in the July 15, 1998, Iowa Administrative Bulletin as ARC 8169A. A public hearing was conducted on August 4,1998, using the Iowa Communications Network, with 14 people attending at seven of the ten available sites. Written and oral comments supporting the rules or requesting a change were received from three people representing contracting agencies and one board of supervisors. A request to define the age for “older adult” was received; however, local contractor decisions will establish age criteria. The following changes were made in response to comments received:

In the definition of “Public health nurse,” the Department deleted “(in which a course in community health nursing must be completed)” and inserted “or has current American Nursing Association gerontology certification,” to partially respond to requests to reduce the noticed standard for a public health nurse. Elevated education for public health nurse is supported by the Department as a standard for the high level of independent functioning required for senior and public health services.

These rules were approved during the regular meeting of the State Board of Health on September 9,1998.

These rules will become effective on November 11,1998.These rules are intended to implement Iowa Code chapter

135.The following amendment is adopted.

Rescind 641—Chapter 83 and adopt the following mew chapter in lieu thereof:

CHAPTER 83IOWA SENIOR HEALTH PROGRAM

641—83.1(135) Program ptirpose. The purpose of the Iowa senior health program is to promote wellness and improve the health of older adults by providing health assessment and health education and to serve as an entry point into the health care system for medically underserved.

IAB 10/7/98 FILED 765


641—83.2(135) Defiiiitioiis. For the purpose of these rules, unless otherwise defined, the following definitions apply:

“Administrative expense” means general overall administrative expenses not specific to the program. No more than 5 percent of the state funds received shall be used for administrative expense.


“Comprehensive assessment” means, at a minimum, a health history, a physical assessment and care planning which includes nursing diagnosis, goal setting, health teaching and referrals. The physical assessment includes all body systems and may include age-appropriate Pap smear or prostate exam. The history and exam are focused on the review of body systems, functional abilities and medication review.


“Core public health functions” means the following functions: community health assessment, policy development, and assurance.


2. Policy development: development, implementation, and evaluation of plans and policies, for public health in general and priority health needs in particular, in a manner that incorporates scientific information and community values in accordance with state public health policy.

3. Assurance: ensuring, by encouragement, regulation, or direct action, that programs and interventions that maintain and improve health are carried out.


“Essential public health services” means those activities carried out by public health entities that fulfill the core functions.

“Health and wellness” means a state of well-being, which includes soundness of mind, body, and spirit, and the presence of a positive capacity to develop one’s potential and to lead an energetic, fulfilling, and productive life.

“Health promotion” means teaching or nursing intervention that emphasizes self-awareness and environmental awareness and promotes a life-style change that will result in optimal health and wellness.

“Health screening” means laboratory tests that may include, but are not limited to: hemoglobin, glucose, urine, and cholesterol; and vision screening, hearing screening, and hypertension screening. It also means use of assessment tools which may include, but are not limited to: assessing for depression, activities of daily living, risk for breast and cervical cancer and nutritional status.

“Low income” means a person whose income is not greater than the current federal Supplemental Security Income guidelines.

“Match” means $1 of local funding is provided for each $2 of state funding. Match may either be a hard dollar match or soft “in-kind” match. Match may not include federal or state funds received from other funders or from funds, fees or donations that have already been considered as match for another funder. Soft “in-kind” match includes resources provided for the program and covered by local funds. Examples include office space, utilities, value of clinic sites donated, telephone, supplies, office supplies, advertising, discounts of lab tests, and administrative costs. Volunteer time may be

used if there is a job description, a record of time provided by the volunteer, and a reasonable value assigned.

“Nonprofit” means an entity that meets the requirement for tax-exempt status under the United States Internal Revenue Code.

“Older adult” means the age of the adult to be determined by the local contractor.

“Partial assessment” means a shortened version of the comprehensive health assessment that includes review of at least one body system, nursing diagnosis, goal setting, health teaching and referrals.

“Public health nurse” means a registered nurse who is licensed by the Iowa board of nursing and who has a baccalaureate degree in nursing or related health or human service area or has current American Nursing Association gerontology certification or has completed a community health nursing course from a baccalaureate program in an accredited college or university. The public health nurse has knowledge of prevention, health promotion and community health nursing and public health concepts.




mation identified.“Registered nurse” means a nurse licensed to practice as a

registered nurse by the Iowa board of nursing.

641—833(135) Senior health program responsibility. Senior health program staff are responsible for participating in activities to safeguard the health and wellness of the community. This responsibility is met through participation in the core public health functions of assessment, policy development and assurance, and the essential public health services.641—83.4(135) Appropriation.

83.4(1) Formula. The appropriation to each county is determined by the following formula. Each county electing to participate will receive the same base amount. Seventy-five percent of the remaining funds will be allocated based on the percent of the county’s population aged 55 and older and the remaining 25 percent based on the percent of county population that is low-income.

83.4(2) Reallocation process. Annually, by June 1, the department will determine the amount of unused funds from contracts with counties. If the unallocated pool is $50,000 or more, it shall be reallocated to the counties in substantially the same manner as the original allocations. If the unallocated pool is less than $50,000 for the fiscal year, the department may allocate the moneys to counties with demonstrated special needs for the older adult population.

83.4(3) Local match. The appropriation shall be distributed to counties providing funding on a matching basis of $1 of local funding for each $2 of state funding. Match may either be a hard dollar match or soft “in-kind” match. Match may not include federal or state funds received from other funders or from funds, fees or donations that have already been considered as match for another funder. Record of match shall be maintained by the contractor and shall be available to the department upon request.

641—83.5(135) Utilization of appropriation. The contractor may choose to utilize the hinds directly or through subcontracts with governmental or nonprofit agencies.

766 FILED IAB 10/7/98

PUBLIC HEALTH-DEPARTMENT[641](cont’d)

When the services are not provided directly by the contractor, the assignment of responsibilities to each agency must be clearly documented in a contract. All such subcontracts must be approved in advance by the department. When the services are provided by more than one agency, the contractor shall evaluate the degree to which the combination of the services meets the identified public health needs of the community. No more than 5 percent of the state funds received shall be used for administrative expenses.

83.5(1) Priorities. Utilization of state funds shall be based on the community health identified needs and assets of the older adult population. Emphasis shall be placed on the core public health functions and the essential public health services with a focus on the special needs of older adults. Service priorities are health assessments, health screenings, health promotion, and health teaching.


641—83.6(135) Client eligibility. Every older adult Iowan shall be eligible for senior health program services when assessment identifies the need for such service and adequate contractor resources exist to provide the service.

641—83.7(135) Contractor requirements. In order to receive these state funds, a contractor shall meet the following requirements:



3. Ensure a personnel management system.4. Maintain administrative and fiscal accountability

through contractor records which include, at a minimum: policies, board minutes and reports, service statistics, and accounting records which indicate all accrued revenue, income and expenses. The contractor shall submit statistical reports identified by annual contract from the department.

5. Maintain clinical records appropriate to the level of service for each client who receives senior health services. The contractor shall provide for appropriate safety and security of the clinical records.

6. Provide authorized representatives of the department access to all administrative, fiscal, personnel, and client records. The clinical record is considered confidential, and department representatives will respect that confidentiality.


8. Ensure that any comprehensive or partial health assessments are performed by a physician or by a registered nurse who has completed a course in adult health assessment.

9. Ensure that population-based services are supervised by a public health nurse within two years of November 11, 1998.

10. Provide services based on identified community assets and priority needs of the older adult population.

641—83.8(135) Quality assurance program. Each contractor shall have a written plan for quality assurance for the program. Quality assurance shall include, but is not limited to, provider qualification and performance, program evaluation, and plan for quality improvement.

641—83.9(135) Billing services to state grant. These grant funds shall be billed at the lower of the cost or usual charge as approved in the grant contract. The state shall not be billed for services eligible for third-party reimbursement. The specific process for expenditure and billing of state funds shall be described in the administrative contract.

83.9(1) Cost analysis. Each contractor shall complete, at least annually, a cost analysis using a cost methodology approved by the department. Reimbursement by the department to the contractor for the fiscal year shall be based on the state-approved rate and contractual conditions.

83.9(2) Client participation. Donations from clients shall be encouraged, and each participant shall be given the opportunity to give a confidential donation. Donations shall be used to expand services in the program.

641—83.10(135) Right to appeal.83.10(1) Local appeal. All contractors shall have a writ

ten local procedure to hear appeals. Whenever a contractor denies, reduces or terminates services eligible to be funded by the state grant against the wishes of a participant, the contractor shall notify the participant of the action, of the reason for the action, and of the participant’s right to appeal. Service need not be provided during the appeal process. The local procedure shall at a minimum include the method of notification of the right to appeal, the procedure for conducting the appeal, the time frame limits for each step, and the method of notification of the outcome of the local appeal and notification of the participant’s right to appeal to the state. Notifications of the outcome of the local appeal shall include the facts used to reach a decision and the conclusions drawn from the facts to support the local contractor decision. The written appeals procedure and the record of appeals filed (including the record and disposition of each) shall be available for inspection by authorized Iowa department of public health representatives.



83.10(4) Further appeal. The department’s decision may be appealed by submitting an appeal, within ten days of the receipt of the department decision, to the Division Director, Division of Family and Community Health, Iowa Department of Public Health, Lucas State Office Building, Des Moines, Iowa 50319-0075. Upon receipt of an appeal that meets contested case status, the department shall forward the appeal within five working days to the department of inspections and appeals pursuant to the rules adopted by that agency regarding the transmission of contested cases. The

LAB 10/7/98 FILED 767


continued process for appeal shall be governed by 641— Chapter 173, Iowa Administrative Code.

TTiese rules are intended to implement Iowa Code chapter 135.



ARC 8398APUBLIC HEALTH

DEPARTMENT[641]Adopted and Filed

Pursuant to the authority of Iowa Code section 135.24 as amended by 1998 Iowa Acts, House File 2340, the Iowa Department of Public Health hereby amends Chapter 88, “Volunteer Health Care Provider Program,” Iowa Administrative Code.

The amendments add new language relating to the expansion of the Volunteer Health Care Provider Program to include other health care providers and services.

Notice of Intended Action was published in the July 29, 1998, Iowa Administrative Bulletin as ARC 8197A. The adopted amendments are identical to those published under Notice. These amendments were also Adopted and Filed Emergency and were published in the July 29, 1998, Iowa Administrative Bulletin as ARC 8198A.

These amendments were approved during the July 8, 1998, meeting of the Board of Health.

These amendments will become effective on November 11, 1998, at which time the Adopted and Filed Emergency rules are hereby rescinded.

These amendments are intended to implement Iowa Code section 135.24 as amended by 1998 Iowa Acts, House File 2340.



641—88.1(135) Definitions. For the purpose of these rules, the following definitions shall apply:

“Charitable organizations” means a charitable organization within the meaning of Section 501(c)(3) of the Internal Revenue Code which has as its primary purpose the sponsorship or support of programs designed to improve the quality, awareness, and availability of medical and dental services to children and to serve as a funding mechanism for provision of medical services, including but not limited to immunizations, to children.

“Health care provider” means a physician licensed under Iowa Code chapter 148, 150, or 150A, a physician assistant licensed and practicing under a supervising physician pursuant to Iowa Code chapter 148C, a licensed practical nurse, or a registered nurse pursuant to Iowa Code chapter 152, or a dentist pursuant to Iowa Code chapter 153.


641—88.2(135) Purpose. The volunteer health care provider program is established to defend and indemnify eligible health care providers providing free medical and dental ser

vice services through qualified programs as pro vided in Iowa Code Supplement section 135.24 and these rules.

ITEM 3. Amend rule 641—88.3(135), introductory paragraph, as follows:

641—883(135) Health care provider eligibility. To be eligible for protection as an employee of the state under Iowa Code chapter 669 for a claim arising from covered medical or dental services, a health care provider must meet all of the following conditions at the time of the act or omission allegedly resulting in injury:

Item 4. Amend subrule 88.3(1) as follows:883(1) Be licensed to practice under Iowa Code chapter

148,148C, 150, 150A, or 152, or 153.Item 5. Amend paragraph 883(2)“d” as follows:d. Comply with the agreement with the department con

cerning approved medical or dental services and programs.

Item 6. Amend subrule 88.3(3) as follows:883(3) Have a current certificate of qualification from

the applicable state licensing board based on review of the following records submitted by the health care provider:

a. Verification that the health care provider holds an active unrestricted license to practice in Iowa under Iowa Code chapter 148,148C, 150,150A, of 152, or 153.

b. Verification that the health care provider has continuously held an active license in good standing since first licensed to practice the profession.

c. Verification of good standing of any hospital and clinic affiliation or staff privileges held by the health care provider in the last ten years.

d. Certified statements from the National Practitioner Data Bank and the Federation of State Medical Boards Disciplinary Data Bank, or State Dental Boards Disciplinary Data Bank, as appropriate, setting forth any malpractice judgments or awards, or disciplinary action involving the physician or dentist. The physician or dentist shall request that the statements be sent directly to the board by the data banks and shall pay the cost.

e. A sworn statement from the health care provider attesting that the license to practice is free of restrictions. The statement shall describe any disciplinary action which has ever been initiated against the health care provider by a professional licensing authority or health care facility, including any voluntary surrender of license or other agreement involving the health care provider’s license to practice or any restrictions on practice, suspension of privileges, or other sanctions. The statement shall also describe any malpractice suits which have been filed against the health care provider and state whether any complaints-involving professional competence have been filed against the health care provider with any licensing authority or health care facility.

f. Any additional materials requested by the board.

Item 7. Amend paragraph 883(4)“e” as follows:e. Provide that the health care provider shall maintain

proper medical or dental records; and


641—88.11(135) Covered medical or dental services. An eligible health care provider shall be afforded the protection of an employee of the state under Iowa Code chapter 669 only for claims for medical injury proximately caused by the health care provider’s provision of covered health services. Covered health services are only those which are:

768 FILED IAB 10/7/98


1. Identified in the agreement with the department;2. In compliance with these rules;3. Provided by or under the direct supervision of the

health care provider ;4. Health services of health prevention, health mainte

nance, health education, diagnosis, or treatment other than the administration of anesthesia, prenatal care, obstetrical care, and surgical procedures except minor surgical procedures and administration of local anesthesia for the stitching of wounds or the removal of lesions or foreign particles may be providedT ; and

5. Primary dental services which are preventive, diagnostic, restorative or emergency treatment including extraction.Experimental procedures or procedures and treatments which lack sufficient evidence of clinical effectiveness are excluded from the program.


Editor’s Note: For replacement pages for IAC, see IAC Supplement 10/7/98.

ARC 8388A

RACING AND GAMING COMMISSION [491]

Adopted and Filed

Pursuant to the authority of Iowa Code section 99F.4, the Iowa Racing and Gaming Commission hereby adopts amendments to Chapter 20, “Application Process for Excursion Boats and Racetrack Enclosure Gaming License,” Iowa Administrative Code.

Item 1 requires recipients of nonprofit distributions to explain how their receipt of this money would benefit residents of Iowa.

Item 2 requires the qualified sponsoring organization, before funding a request, to consider how it would benefit residents of Iowa. It also does not allow the qualified sponsoring organization to distribute to an organization that has an em

ployee, officer or director who is a member of the Commission.

These adopted amendments are identical to those published under Notice of Intended Action in the August 12, 1998, Iowa Administrative Bulletin as ARC 8232A.

A public hearing was held on September 1,1998. Comments were received and distributed to the Administrative Rules Review Committee.


These amendments are intended to implement Iowa Code chapter 99F.


Item 1. Amend subrule 20.11(6), paragraph “a,” subparagraph (2), as follows:

(2) Potential recipients of any such distributions shall be required to certify that the intended use of the proceeds of the distributions will comply with the uses as defined in Iowa Code section 99B.7, subsection 3, paragraph “b.” A potential recipient shall also explain in writing how the intended use of the proceeds of the distribution will benefit the residents of Iowa.

Item 2. Amend subrule 20.11(6) by adding new paragraphs “d” and “e” as follows:

d. In determining whether to fund a request from a potential recipient, the qualified sponsoring organization shall consider how the intended use of the proceeds of the distribution will benefit the residents of Iowa.

e. No licensee or qualified sponsoring organization shall make a distribution to any organization that has an employee, officer or director who is a member of the commission. This provision does not apply to employees, officers, directors or trustees of political subdivisions or their affiliated agencies or boards. No commissioner shall express, or otherwise attempt to influence, a qualified sponsoring organization as to the commissioner’s preference for a potential grantee.



IAB 10/7/98 SUPREME COURT 769

* SUMMARY OF DECISIONS THE SUPREME COURT OF IOWA

FILED SEPTEMBER 23, 1998

Note: Copies of these opinions may be obtained from the Supreme Court Clerk, State Capitol Building, Des Moines, LA, 50319, for a fee of 40 cents per page.

No. 96-2027. DRAHAUS v. STATE.Appeal from the Iowa District Court for Polk County, Robert A.

Hutchison, Judge. AFFIRMED. Considered by McGiverin, C.J., and Larson, Lavorato, Neuman, and Temus, JJ. Opinion by McGiverin, C.J.

(14 pages $5.60)

Two relatives of Jonathan Waller suspected he was being abused while living with his mother and her boyfriend. They separately reported their concerns to the Iowa Department of Human Services (DHS). In response to the second report, the DHS informed the relative that the information was insufficient to suspect child abuse. On March 5, 1992, approximately one week after the last response, Jonathan was admitted to the hospital with life-threatening injuries allegedly caused by Jonathan’s mother’s boyfriend. The next day Jonathan was placed in the temporary custody of the DHS. On June 26, 1992, he was placed m the temporary legal custody of the Drahauses, his aunt and uncle. On August 31, 1993, the DHS became Jonathan’s guardian. On May 31, 1994, the Drahauses adopted Jonathan, thereby terminating the guardianship. On August 11, 1994, the Drahauses filed a claim with the state appeal board on Jonathan’s behalf, asserting the DHS failed to properly investigate the reports of child abuse. The Drahauses filed a petition in district court on March 30, 1995. The State moved for summary judgment, arguing the suit was barred because the claim filed with the appeal board was not filed within two years from the accrual of the claim. The district court agreed and granted the motion, finding the suit was time-barred under Iowa Code section 669.13 (1993). Jonathan appeals, by and through the Drahauses as the administrators of his estate. OPINION HOLDS: L We conclude that Iowa Rule of Civil Procedure 12 did not preclude the Drahauses from filing a claim on Jonathan’s behalf with the appeal board during the period while the State was Jonathan’s guardian. Rule 12 does not apply to the filing of an administrative claim with the appeal board. Anyone could have filed a claim on Jonathan’s behalf prior to or during the State’s guardianship. II. Jonathan also argues the statute of limitations should be tolled based upon equitable tolling principles. We find it unnecessary to consider whether such principles should be applied because tolling of the statute of limitations is purely statutory. Because the claim was not timely filed with the appeal board and there was no legal obstacle precluding the Drahauses from filing a timely claim, the district court properly granted summary judgment. We affirm.

♦Reproduced as submitted by the Court

770 SUPREME COURT IAB 10/7/98

No. 97-296. STATE v. PROCTOR.Appeal from the Iowa District Court for Polk County, George W. Bergeson,

Judge. AFFIRMED. Considered by Harris, P.J., and Carter, Neuman, Snefl, and Anareasen, JJ. Opinion by Neuman, J. (10 pages $4.00)

Patricia Howlett was reported missing in November 1994. Several days later, a maintenance worker found Howlett’s partially clothed body at a Des Moines ballpark. She had been beaten ana sexually abused, her throat slashed, and her body partially burned. A year passed before authorities learned that Jerry Proctor had divulged detailed facts about the crime to his mother and girlfriend. Eventually Proctor confessed the following story to police. On the night of Howlett’s disappearance he was in a shopping center parking lot when he witnessed a woman being attacked by an assailant with a knife. As Proctor approached to investigate, the assailant reportedly stabbed Howlett in the leg. Proctor confronted the man, who pulled a gun and forced Proctor and the woman into the woman’s car. Proctor was ordered to drive to a ballpark near his mother’s home. He claimed the unknown man then led the two to a secluded area, beat them both to the ground, and ordered Proctor to sodomize Howlett. When the act was done, the man slit Howlett’s throat. Proctor then drove the unknown man back to the shopping center, where he escaped. Proctor admitted that he later returned to the ballpark and set Howlett’s body on fire. The State charged Proctor with first-degree murder based on alternative theories of willful, deliberate, and premeditated killing or while participating in a forcible felony. During voir dire, Proctor’s counsel displayed gruesome photographs from another murder case in order to assess the jurors’ reactions. On the state’s objection, the court prevented defense counsel from further use of the photographs. During jury deliberations it was discovered that an inadmissible investigative “profile” report had inadvertently been included in the evidence given to the jury. Following a hearing, the court admonished the panel to disregard it and determined there had been no prejudice to Proctor. The jury found Proctor guilty of first-degree murder. The court denied Proctor’s motion for new trial. On appeal Proctor argues: (1) the court erred in refusing to submit a jury instruction on hisproposed defense of compulsion to the underlying acts of sexual abuse and kidnapping; (2) the district court erred in sustaining the State’s objection to the voir dire display of the photographs; and (3) the court abused its discretion in denying his motion for new trial based on the jurors’ exposure to the profile evidence. OPINION HOLDS: I. The “act” Proctor concedes participation in but seeks protection from pursuant to Iowa Code section 710.4 (1995)—sexual abuse—involved a physical injury. Moreover, Proctor makes no attempt on appeal to assert compulsion as a defense to the predicate crime of willful injury. Proctor’s admitted participation in one of the three crimes satisfied that essential element of murder. II. The trial court did not abuse its discretion in restricting the display of the photographs. III. The record reveals no improper influence from the inadvertent submission of the profile report. Moreover, the court’s prompt corrective measures were sufficient to prevent any prejudice to Proctor. We affirm.

LAB 10/7/98 SUPREME COURT 771

No. 96-1079. TULLIS v. MERRILL.Appeal from the Iowa District Court for Monroe County, Phillip R. Collett,

Judge. AFFIRMED. Considered by Harris, P.J., and Carter, Neuman, Snell, and Andreasen, JJ. Opinion by Neuman, J. (12 pages $4.80)

Robert Tullis was recruited by Larry Merrill, Sr. to assume a newly-created position of marketing director for Merrill’s security company^ Merrill informed Tullis the company would pay his health insurance, and Tullis accepted the

Position. After four paychecks, however, the company began deducting nearly 80 from Tullis’s paycheck for insurance premiums. Despite a dozen discussions with Merrill regarding reimbursement, the deductions continued. Tullis formally

wrote to Merrill informing him of the devastating economic impact the deductions, and requested the situation be rectified. After a meeting to discuss the matter, Merrill informed Tullis his employment would be terminated. Tullis subsequently brought suit against Merrill for breach of employment contract, payment of Dack wages, and retaliatory discharge. The juiy returned a verdict in Tullis’s favor, compensating him for unpaid wages ana awarding actual and punitive damages. Merrill appealed. OPINION HOLDS: I. We hold that Iowa Code chapter 91A (1995) plainly articulates a public policy prohibiting the firing of an employee in response to a demand for wages due under an agreement with the employer. II. We conclude that Tullis’s formal letter to Memll constituted a complaint related to unpaid wages for purposes of applying Iowa Code section 91 A. 10(5). III. We hold the district court committed no error in refusing to instruct on Merrill’s “illegality” theory. Merrill offered no proof, beyond the mere language of the Internal Revenue Code, that payment ofTullis’s premiums was illegal. The regulation on its face does not provide cover for an employer who violates Iowa’s wage payment law. IV. We reject Merrill’s claims that the court erred by not granting a new trial or remittitur of damages. The jury’s compensatory damage award could not be characterized as flagrant or excessive. We likewise affirm the jury’s award of punitive damages. V. vVe conclude the district court did not err in denying Merrill’s motion to vacate judgment based on the claim of newly-discovered evidence. Merrill failed to secure a copy of the insurance enrollment forms allegedly indicating Tullis’s authorization for the premium deductions until after tnal, and even if me jury had seen the documents, it was still entitled to its conclusions based on the evidence. We therefore affirm the district court judgment.


No. 97-2131. IN RE MARRIAGE OF MARCONI.Appeal from the Iowa District Court for Marion County, D.J. Stovall,

Judge. REVERSED AND REMANDED. Considered by Harris, P.J., and Larson, Lavorato, Snell, and Andreasen, JJ. Opinion by Harris, J.

(6 pages $2.40)

Vilma and Tony Marconi were married and had one child, Gianni, born October 5, 1995. Vilma also had a seven-year-old daughter, Indira, who also lived with them. The marriage was marked by domestic abuse and Tony physically abused Vilma and Indira. In August 1996 Vilma fled the family home with Indira and Gianni because she was convinced Tony was a danger to her and the children. Tony tried to find Vilma and the children but was unsuccessful. In November 1996 Tony filed a dissolution proceeding, and, because he did not know where Vilma was, notice of the suit was obtained by publication. Unaware of the action, Vilma never answered or appeared. A default decree was entered on February 28, 1997, awarding custody of Gianni to Tony. Vilma learned of the entry of the default decree on May 28, 1997, and she filed a petition to vacate the decree alleging her fear for her safety required her to leave the marital home, and thus her inability to receive notice of trie suit and appear at trial was an unavoidable casualty or misfortune under Iowa rule of civil procedure 252(e). The district court denied the petition to vacate and Vilma has appealed. OPINION HOLDS: I. Flight to avoid domestic abuse will support a decree to vacate a dissolution decree and the district court had the authonty to vacate the dissolution decree on Vilma’s application. II. Vilma’s circumstances amounted to an unavoidable casualty under rule of civil procedure 252(e). We reverse the denial to set aside the default judgment.

No. 97-1232. PLYMOUTH FARMERS MUT. INS. ASS’N v. ARMOUR.Appeal from the Iowa District Court for Woodbury County, Michael S.

Walsh, Judge. AFFIRMED. Considered by McGivenn, CJ., and Larson, Lavorato, Neuman, and Temus, JJ. Opinion by Neuman, J. (8 pages $3.20)

Linda Armour and Robert Rasmussen were married in 1993. Linda was the sole owner of the home in which they lived. The property had been conveyed to her by Robert in September 1991; "however, the conveyance was not recorded until 1992. By April 1996, Linda and Robert’s marriage was failing. Linda petitioned for dissolution and secured a temporary writ ofinjunction restraining Robert from coming onto her property. In July 1996 Robert doused Linda’s house with gasoline and set it ablaze. Linda filed a claim for fire loss coverage with Plymouth Farmers Mutual Insurance Association, who denied coverage on the ground Robert, who intentionally caused the loss, was either a named insured or an “insured person” under the policy. It nonetheless paid Linda $10,000 for destruction of personal property. Plymouth later filed an action for declaratory judgment, asserting its right to deny coverage based on the policy’s intentional acts exclusion, seeking recovery of the $10,000, and alleging that Linda had secured title to the property by fraud. The district court found the fraud claim meritless and concluded Robert was not an insured so as to prevent coverage. Plymouth appeals. OPINION HOLDS: I. We find no error in the court’s verdict for Linda on Plymouth’s claim of fraud. II. Robert was not a named insured on the Plymouth policy covering the property on July 20, 1996, the date


No. 97-1232. PLYMOUTH FARMERS MUT. INS. ASS’N v. ARMOUR, (continued)

of the fire. III. The district court correctly applied the ordinary meaning of the words “living in the same household” and under the unique facts of this case, found Robert failed to meet that definition. Linda discerned her relationship with Robert had so deteriorated that she no longer wanted him under the same roof; the duration of their separation was substantial, eventually becoming permanent; their previously intimate relationship had become arm’s length; and for purposes of the insurance contract, she haa affirmatively acted—as sole owner of the property—to remove him from the policy’s coverage. Therefore, Robert was not an insured person and his intentional acts did not operate to exclude coverage for Linda’s loss. We affirm.

No. 97-781. STATE v. ICOSTMAN.Appeal from the Iowa District Court for Linn County, David M. Remley,

Judge. AJFFIRMED. Considered by McGiverin, C.J., and Larson, Lavorato, Neuman, and Ternus, JJ. Per curiam. (7 pages $2.80)

Kostman was charged with lascivious acts with a child for allegedly engaging in sex acts with a thirteen-year-old boy. At trial the victim testified about three sexual encounters in Kostman’s home, and that Kostman gave him money for sexual acts. The victim admitted he once recanted the allegations to

Erotect Kostman, and defense counsel was able to bring out inconsistencies etween the victim’s trial testimony and his prior statements. A detective testified Kostman confessed to the sex acts, and Kostman’s signed confession was

admitted into evidence. The jury found Kostman guilty. The court adjudged Kostman an habitual offender based on six prior convictions for the offense and sentenced him to an indeterminate thirty-year prison term, applying both the habitual offender and sexual predator enhancement provisions. OPINION HOLDS: I. We reject Kostman’s challenge to the sufficiency of the evidence. We find the victim’s testimony was not absurd or unbelievable, and it comported with Kostman’s written confession. Kostman’s argument that he is so easygoing that he signed the confession just to curry favor with the detective is wholly unconvincing and without merit. II. We reject Kostman’s contention that the district court should have applied only the sexual predator enhancement statute for a maximum of up to twenty-five years. The sentencing court properly imposed a thirty-year prison term, based upon the application of the specific sentencing provisions of Iowa Code section 901A.2(3) (1997) and the general sentencing provisions of Iowa Code section 902.9.


No. 97-874. STATE v. CARNEY.Appeal from the Iowa District Court for Webster County, Frederick E.

Breen, District Associate Judge. AFFIRMED IN PART; VACATED IN PART. Considered en banc. Per curiam. Dissent by Snell, J. (12 pages $4.80)

Defendant appeals the judgment and sentence entered upon his conviction of operating while intoxicated (Owl), first offense. He argues nis guilty plea was invalid because he was not informed that as a consequence of pleading guilty, his driver’s license could be revoked for six years and his vehicle could be impounded. Defendant further asserts his counsel was ineffective for failing to inform him of these consequences. OPINION HOLDS: I. Revocation does not have an effect on the “range of defendant’s punishment,” and therefore it is not a direct, but collateral, consequence of a guilty plea. Therefore, the district court had no duty to inform the defendant of it. II. Because we find the impoundment order was improper, we need not address whether it was a direct or collateral consequence. We vacate the impoundment order. III. Having concluded that the consequence of license revocation is collateral, we find counsel was not ineffective in failing to inform defendant of it. DISSENT ASSERTS: I respectfully dissent. I believe the court’s acceptance of the guilty plea without advising defendant of the revocation violated defendant’s due process rights and Iowa Rule of Criminal Procedure 8(2)(b). I also believe defendant received ineffective assistance of counsel because his counsel failed to advise him of the license revocation consequences of his guilty plea. I would reverse and remand.

No. 97-1779. RIEGER v. JACQUE.Appeal from the Iowa District Court for Polk County, Leo E. Oxberger,

Senior Judge. AFFIRMED. Considered by McGiverin, C.J., and Harris, Carter, Snell, and Andreasen, JJ. Opinion by Harris, J. (8 pages $3.20)

Don Jacque, Lois Rieger’s insurance agent, approached her regarding her need for estate tax planning. Jacuqe suggested Rieger fund an irrevocable trust. Rieger prepared an inventory of her assets, which Jacque sent to estate planners at Principal Mutual Life Insurance Co., his employer. Principal’s underwriting team sent Jacque a report containing their estate plan recommendations. The report specifically warned it was not to be considered legal advice, and that an attorney should be consulted before any action was taken. Jacque set up a meeting between Rieger and attorney Lawrence Stumme, Jr. to prepare a trust. Based on Rieger’s specifications, Stumme drafted and Rieger executed an irrevocable trust. Rieger later learned that the trust would result in considerable estate tax liability upon her death. Rieger filed a negligence action against Principal, Jacque, Stumme, and an accountant. The district court concluded that neither Jacque’s nor Principal’s actions were the proximate cause of Rieger’s injury, and granted summary judgment dismissing the suit. Rieger has appealed. OPINION HOLDS: I. We conclude that, even assuming without deciding Jacque owed Rieger a duty of care and also assuming he breached such a duty, his actions were not a proximate cause of Rieger’s injury because Stumme’s acts were unquestionably an intervening cause. Stumme personally asked Rieger about her estate planning goals and what she wished to achieve by way of the trust. He did not rely on any materials supplied by Jacque or Principal. We affirm the trial court’s entry of summary judgment.


No. 97-846. STATE v. PATTERSON.Appeal from the Iowa District Court for Tama County, Stephen C. Gerard

II, District Associate Judge. JUDGMENT OF CONVICTION AFFIRMED,SENTENCE VACATED AND REMANDED FOR RESENTENCING. Considered by McGiverin, C.J., and Harris, Carter, Snell, and Andreasen, JJ. Per curiam. (4 pages $ 1.60)

Patterson appeals from the sentences imposed following his guilty pleas to three counts of senous domestic abuse assault. He argues the sentencing court erred by designating the county jail as the place of confinement for his consecutive terms of incarceration, which together totaled over one year of imprisonment. OPINION HOLDS: I. Pursuant to Iowa Code section 901.8 (1995), consecutive sentences are to be viewed as one continuous term of imprisonment for purposes of designating the proper place of confinement under Iowa Code section 903.4. II. We reject the State’s argument that section 903.4 only applies to persons who are to be confined and not to suspended sentences.III. A district court must correctly designate the proper place of confinement in the event a defendant’s probation is revoked. Patterson’s sentences exceed one year in length, and the proper place of confinement was in the custody of the direction or the department of corrections. We affirm the judgment entered upon Patterson’s convictions, but vacate his sentences and remand for resentencing.

No. 97-1057. STATE v. LEUTFAIMANY.Appeal from the Iowa District Court for Polk County, Jack D. Levin, Judge.

AFFIRMED. Considered by McGiverin, C.J., and Harris, Carter, Snell, and Andreasen, JJ. Opinion by Harris, J. (16 pages $6.40)

Leutfaimany, who was charged and tried jointly with three others, appeals from his convictions of first-degree murder, first-degree robbery, and willful injury. OPINION HOLDS: I. Leutfaimany’s defense cannot be said to be irreconcilable with that of his codefendants, and the use of their redacted statements did not violate Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). The trial court did not abuse its discretion in denying the motion to sever. II. We have serious misgivings about the substitution of pronouns in testimony by witnesses sworn to tell nothing but the truth. When such a practice become necessary in order to accommodate the defenses of multiple defendants, serious consideration should be given to severing the trial. It is unnecessary for us to approve or disapprove such a substitution because the overwhelming evidence of Leutfaimany’s guilt rendered any error in redacting the pretrial statements clearly harmless beyond a reasonable doubt. III. Leutfaimany’s unredacted pretrial statement was admitted into evidence in its entirety, and nis challenge under Iowa rule of civil procedure 106 is moot. IV. We do not consider Leutfaimany’s argument that it was error for the district court to admit both his redacted statement and complete statement because it was asserted for the first time in his reply brief. V. We find no prejudice in the State’s ten-day delay in placing the redaction in final form. VI. Leutfaimany’s contention that he was deniea his sixth amendment right to confront the police officers who testified at trial simply revisits the Bruton issue and is without merit. VII. The trial court did not abuse its discretion in denying Leutfaimany’s request for the appointment of

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No. 97-1057. STATE V. LEUTFAIMANY. (continued)

a forensic pathologist. VIII. We find no merit in Leutfaimany’s contention that an interpreter was necessary for his defense. IX. Defense counsel was thoroughly prepared for the complex trial, and the trial court did not err in denying a continuance. X. We reject Leutfaimany’s claim that a letter he wrote to a codefendant was meant to be a letter to his attorney and was therefore privileged.

No. 97-1023. STATE v. ROEUTH.Appeal from the Iowa District Court for Polk County, Jack D. Levin, Judge.

AFFIRMED. Considered by McGiverin, C.J., and Harris, Carter, Snell, and Andreasen, JJ. Per curiam. (4 pages $1.60)

This case is a companion to State v. Leutfaimany,__ N.W.2d (Iowa1998), which we file today. Defendant Sy Roeuth was one of the Tour men involved in the events described in that opinion, and he raises two errors on appeal. OPINION HOLDS: I. The admission of the codefendants’ redacted confessions was not a Bruton violation and did not prejudice Roeuth. II. Any error in the admission of the statements was harmless beyond a reasonable doubt because the State presented ample evidence apart from the statements of the nontestifying codefendants which connected Roeuth with the robbery and the murder. III. Roeuth never specifically moved to admit his entire pretrial statement pursuant to Iowa rule of evidence 106, and has not preserved error on this claim.

No. 97-1108. IN RE MARRIAGE OF LUNINA.Appeal from the Iowa District Court for Dallas County, Darrell Goodhue,

Judge. AFFIRMED. Considered by McGiverin, C.J., and Fiarris, Carter, Snell, and Andreasen, JJ. Opinion by Andreasen, J. (5 pages $2.00)

Alla Lunina and Ilya Pozdnyakov were married in Azerbaijan. Alla has a daughter, Olga. Ilya is not Olga’s biological father. Alla, Olga and Ilya emigrated to the United States. Alla subsequently filed a petition for dissolution of marriage. At the hearing, Alla offered into evidence a certificate of adoption registered in Azerbaijan, in which Ilya was acknowledged as Olga’s father. Ilya made no objection to the exhibit, but disputed the adoption. Tne district court found Ilya had adopted Olga and entered a dissolution decree ordering that he pay child support. Ilya appeals. OPINION HOLDS: I. Although Alla did not follow the rums for authenticating the adoption document in district court, Ilya has waived his right to challenge its authenticity on appeal. We must presume the certificate is valid, and that Ilya adopted Olga in Azerbaijan. II. We reject Ilya’s alternative argument that Iowa Code section 600.15(2) (1997) requires further adoption proceedings in Iowa in order for the foreign adoption to be valid. That statute’s application is limited to situations in which a child is adopted in his or her country of origin by parents who reside in the United States. It does not apply to foreign adoptions where both child and parents were residents of the foreign country.


No. 96-1930. CROOKHAM v. RILEY.Appeal from the Iowa District Court for Linn County, Lynne E. Brady,

Judge. AFFIRMED. Considered by Harris, P.J., and Larson, Lavorato, Snell, and Andreasen, JJ. Opinion by Andreasen, J. (20 pages $8.40)

Carter Crookham owned minority interests in several companies owned or controlled by Joe Crookham and Myron Gordin. He served as general manager for one of the companies until 1986, when he was fired. On the suggestion of Peter Riley of Tom Riley Law Firm, P.C., Carter teamed with John Coster, another minority shareholder, to attempt to fight certain proposals by the majority shareholders. A corporate merger was approved at a special shareholders’ meeting, but Carter’s demand for payment of the market value of his shares as a dissenting shareholder was not given within the ten-day statutory period. A federal suit filed by Peter on behalf of Carter and John was later dismissed on statute of limitations grounds. While the federal suit was pending, the defendants offered Carter a settlement of $3700 per month for twenty years, but the companies’ offer to John was deemed insufficient and the settlement of both suits fell through. Peter ultimately settled John’s suit and suggested Carter’s fraud suit be refileaT Carter opted not to have Peter refile the suit and instead accepted a settlement for periodic payments totaling $346,350. Carter subsequently transferred his stock to his children along with any claims he had against the companies. Carter later filed a malpractice claim against the Riley firm and Peter and Tom Riley individually (collectively Riley). Riley counterclaimed to recover contingent attorney fees. The jury found for Carter on his negligence claim and for Riley on the counterclaim. The verdict awarded Carter $230,000 on his negligence claim and awarded Riley $86,000 on the counterclaim. On Carter’s posttrial motion, the district court found an irreconcilable conflict between the jury’s verdicts and set aside the judgment on the counterclaim. Riley appeals. OPINION HOLDS: I. The transfer of Carter’s stock did not constitute atransfer or assignment of the malpractice claim against Riley. Carter is the real party in interest. II. We find substantial evidence that Peter failed to properly perfect and preserve Carter’s stockholder right to a judicial appraisal of his corporation shares and that this negligence was a proximate cause of damage. Carter was damaged by the loss of his dissenter's rights under Iowa Code section 496A.78. The alternative action for damage based on fraud and illegality was a separate claim requiring different proof. We also find substantial evidence to support the $230,000 damage award based upon Peter’s mishandling of Carter’s dissenter’s statutory rights. There was testimony that the value of Carter’s stock at the time of the merger ranged between $500,000 and $600,000, and he settled his claim for less than $350,000. III. There is substantial evidence that Carter was not advised that Peter’s representation of him could conflict with Peter’s representation of John and the Coster trust claims, and that when an actual conflict arose in the settlement negotiations in 1990, Peter did not advise Carter of the actual conflict nor did Peter withdraw as counsel. We further find there is substantial evidence that Peter’s conflict of interest was a proximate cause of the loss of the settlement offer at the 1990 conference. There is substantial evidence Carter was offered a structured settlement valued at between $500,000 and $600,000. He ultimately settled for $346,350. The jury’s determination of $230,000 in damages is supported by substantial evidence. IV. We need not decide if the trial court abused its discretion in admitting expert opinion because Riley has not challenged the sufficiency of the evidence of Peter’s negligence on

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No. 96-1930. CROOKHAM v. RILEY, (continued)

appeal. The admission of this testimony on the issue of negligence was not prejudicial to his appeal. V. We further find Riley’s challenges to the admission or exclusion of other evidence do not disclose any reversible error. VI. The court did not abuse its discretion in denying Riley’s motion for mistrial. VII. We agree the jury’s verdict for Carter is a special verdict and the verdict for Riley is a general verdict. In this case the contract for hire provided for the payment of a contingent attorney fee in the event of recovery. The legal services were not severable. The general verdict on the counterclaim is both inconsistent and in irreconcilable conflict with the answer to interrogatories contained in the special verdict on Carter’s claim. If Peter was negligent in performing legal services and his fault was a substantial percentage of fault causing damages, then Peter substantially failed to perform the contracted services. We find the trial court did not abuse its discretion in electing to order judgment for Carter on the counterclaim. We affirm.

No. 97-232. PETTY v. FAITH BIBLE CHRISTIAN OUTREACH CENTER, INC.

Appeal from the Iowa District Court for Buena Vista County, Donovan D. Schaefer, District Associate Judge, and James Gailey, Judicial Magistrate. AFFIRMED IN PART AND REVERSED IN PART. Considered by McGiverin, C.J., and Harris, Carter, Snell, and Andreasen, JJ. Opinion by Andreasen, J.

(9 pages $3.60)

The Faith Bible Christian Outreach Center (the church), acquired a building located on land that was owned by a trust. The church subsequently leased tne land from the trust for the term ending on June 19, 1996. W.M. Petty acquired the land and an assignment of the lease from the trust. Petty notified the church its lease would terminate on June 19. The church did not vacate the premises on June 19, and Petty served three-day notices to quit on church representatives on July 22 and 23, 1996. He filed a forcible entry and detainer (FED) action on August 9, 1996. At trial, Petty claimed the lease terminated on June 19; the church claimed the lease had been automatically renewed. The church also urged the action was barred under Iowa Code section 648.18 (1995) by its peaceable possession for over thirty days. The magistrate found the lease was not ambiguous and was for a fixed term ending on Tune 19, and the FED action was not barred. The church appealed and the district court affirmed. The church filed an application for discretionary review which we granted. OPINION HOLDS: I. Although the language relating to renewal is ambiguous, the lease was not subject to renewal because of several factors. The purported renewal provision is not sufficiently specific with respect to the duration of the additional term or the amount of rent to be paid. Because of the structure of the paragraph, the renewal language applied only in the event there was a material breach and the lessor elected not to exercise his option to terminate the lease. II. The church, as a holdover tenant, could rely on section 648.18 and the peaceable possession defense. By not taking action to interrupt the church’s peaceable

Possession within thirty days of June 19 as reauired by section 648.18, Petty lost is right to use the summary remedy of an FED action to recover the property. It was error to find the action was barred, and we reverse.


No. 97-959. CITY OF SIOUX CITY v. IOWA DEP T OF COMMERCE.Appeal from the Iowa District Court for Woodbury County, Gary E.

Wenell, Judge. AFFIRMED. Considered by McGiverin, C.J., and Harris, Carter, Snell, and Andreasen, JJ. Opinion by Snell, J. (9 pages $3.60)

Maggie’s Mini Mart, a convenience store located in Sioux City, holds a retail beer permit issued by the Iowa Department of Commerce, Alcoholic Beverages Division. The city council of Sioux City passed a resolution suspending Maggie s beer permit for thirty days pursuant to Iowa Code section 123.50(3)(b) (1995). The city council suspencied the permit based on the convictions of two of Maggie’s employees under Iowa Code section 123.49(2)(h) (selling alcoholic beverages to a minor) within a two-year time period. Maggie’s appealed the city council’s action to the Alcoholic Beverages Division. Although the division provided both parties with notice of the hearing, the City did not appear. Relying on Iowa Administrative Code rule 185—10.12 permitting the entry of a default judgment against a party failing to appear at a contested case hearing, the administrative lawjuage reversed the resolution and entered a default judgment against the City. Tne agency affirmed the proposed decision. On judicial review the district court affirmed the agency’s final order. The City appealed. OPINION HOLDS: I. Because the issues involved in this judicial review action were all legal in nature, the City’s motion for summary judgment was properly treated as a motion for review on the merits. II. Despite the fact that chapter 17A does not provide for entry of default judgments when a party does not appear, the rule promulgated by the division for such judgments merely builds upon the “minimum procedural code” provided by chapter 17A. We concur with the district court’s determination that a “rational agency” could conclude that the promulgation of rule 185—10.12 was within its power. III. The mandatory penalty provided by section 123.50(3)(b) does not relieve the prosecuting authority from its burden of proving the elements of the violation before the punishment can be imposed. The district court properly concluded that rule 185—10.12 is not in violation of the statute. IV. The agency’s decision to enter a default judgment was supported by substantial evidence and is not unreasonable, arbitrary, or capncious or characterized by an abuse of discretion.

No. 97-1754. STATE v. CEASER.Appeal from the Iowa District Court for Black Hawk County, James C.

Bauch, Judge. AFFIRMED. Considered by McGiverin, C.J., and Carter, Lavorato, Neuman, and Temus, JJ. Opinion by Temus, J. Concurrence by Carter, J. (16 pages $6.40)

A jury found Rodney Lee Ceaser guilty of second-degree robbery and the trial court sentenced him to a mandatory ten-year term of imprisonment. Ceaser appeals contending (1) the trial court erroneously refused to instruct the jury on his claim of self-defense, and (2) Iowa Code section 902.12 (1997), which requires that he serve 100% of the maximum sentence without the possibility of parole or work release, violates the Equal Protection Clause of the federal and state constitutions. The State claims error was not preserved on the latter issue. In response, Ceaser asserts his trial counsel rendered ineffective assistance if error was not preserved. OPINION HOLDS: I. The trial court correctly refused to


No. 97-1754. STATE v. CEASER. (continued)

give a self-defense instruction because the force used by the store employees was not unlawful and Ceaser was not justified in using force against them. II. We also find no merit in Ceaser’s equal protection challenge to section 902.12 insofar as it treats second-degree robbery differently than the forcible felonies not encompassed within that statute. Persons committing the criminal offenses not included in the classification established by section 902.12 are not situated similarly to Ceaser because those crimes are distinguishable from second-degree robbery. Because there is a rational basis for the inclusion of second-degree robbery within section 902.12, we will not disturb the legislature’s decision to impose a more severe punishment for this offense. We affirm. CONCURRENCE ASSERTS: I fully concur in the majority’s conclusions. I believe, however, that it is unnecessary in order to reject the defendant’s equal protection claim to identify similarities and differences between different crimes and reconcile the differing sentences provided therefor. The legislature has total discretion in that regard. If a particular statutory sentence is to be challenged as being too severe, this must be done by a proportionality challenge under the Eighm Amendment.

No. 97-1277. IN RE ESTATE OF GEARHART.Appeal from the Iowa District Court for Harrison County, Timothy

O’Grady, Judge. REVERSED AND REMANDED WITH DIRECTIONS. Considered by McGiverin, C.J., and Larson, Lavorato, Neuman, and Ternus, JJ. Opinion by Ternus, J. (8 pages $3.20)

This case involves the appropriate apportionment of settlement proceeds paid for a claim made under the Federal Employers’ Liability Act (FELA) based on the death of Matthew Gearhart. Gearhart died in the course of his employment with a railroad. He was survived by his spouse, Corinne, their minor child, and two adult children from a prior marriage, Justin and Sarah. Corinne made a claim under FELA for wrongful death damages and eventually negotiated a substantial settlement with the railroad. Following a hearing to determine the apportionment of the settlement monies, the court awarded fifteen percent of the proceeds to Justin and Sarah. The court concluded that the distribution of the settlement proceeds was governed by state law, and justified the fifteen percent apportionment to Justin and Sarah on the basis that Iowa law recognizes a loss of consortium claim on behalf of adult children, a claim not allowable under FELA. Corinne appealed, and Justin and Sarah cross-appealed. OPINION HOLDS: Distribution of the settlement proceeds is governed by FELA.Accordingly, Justin and Sarah may share in these proceeds only if they prove they have suffered a pecuniary loss as a result of their father’s death. We find they have shown a small pecuniary loss. We reverse that portion of the district court s order distributing the challenged fifteen percent, and remand for entry of an order awarding $200() to Justin and $4000 to Sarah. The balance of the disputed fifteen percent shall be apportioned to Corinne.


No. 97-683. TEACHOUT v. FOREST CITY COMMUNITY SCH. DIST.Appeal from the Iowa District Court for Winnebago County, John S.

Mackey, Judge. AFFIRMED. Considered by McGiverin, C.J., and Larson, Lavorato, Neuman, and Temus, JJ. Opinion by Temus, J. (14 pages $5.60)

Christine Teachout brought suit against her employer, Forest City Community School District, alleging she had been wrongfully terminated from her position as a teaching assistant in retaliation for her attempts to report child abuse. The district court granted the District’s motion for summary judgment on the basis Teachout could not prove that her reporting of child abuse was the determining factor in the District’s decision to discharge her. Teachout appeals. OPINION HOLDS: I. We conclude a Finding that Teachout had a good-faith intent to file a report would constitute protected activity. It would be contrary to the public policy articulated in our cnild abuse laws to allow an employer to take adverse employment action on the basis of an employee’s intent to report child abuse. We further believe an employee’s delay in making a report of abuse does not operate to deny her a remedy for a retaliatory discharge. The district court properly ruled that a factual issue existed as to this element of Teachout’s wrongful discharge claim. II. The employee’s engagement in protected conduct must be the determinative factor in the employer’s decision to take adverse action against the employee. A factor is determinative if it is the reason that “tips the scales decisively one way or the other,” even if it is not the predominant reason behind the employer’s decision. Here, there is no evidence that Teachout’s supervisors discouraged her from filing a report of child abuse or that they even made any negative statements concerning her belief that child abuse had occurred. On the other band, Teachout herself concedes that there was ^personality conflict between her and the supervising teacher in the classroom. Therefore, we agree with the district court s conclusion that Teachout failed to generate a jury question on the issue of causation. We affirm.

No. 96-1731. MIDWEST HOME DISTRIBUTOR, INC. v. DOMCO INDUS., LTD.

Appeal from the Iowa District Court for Linn County, William R. Eads, Judge. AFFIRMED. Considered by Harris, P.J., and Larson, Lavorato, Snell, and Anareasen, JJ. Opinion by Lavorato, J. (22 pages $8.80)

Midwest Home Distributor, Inc. is a floor covering distributor operating in Cedar Rapids. Domco Industries Ltd. manufactures vinyl floor covering. In October 1988 Midwest became a Domco distributor following a number of discussions. Domco represented to Midwest that it was growing and increasing its market share in the United States and that Midwest would be the only stocking distributor of Domco’s product in Iowa. Despite Domco’s assurances, Domco added Onthank Company in Des Moines as another stocking distributor. In early January 1991, Onthank realized that Iowa could only support one stocking distributor, and Domco later agreed that it would terminate Midwest’s distributorship. Domco did so effective August 1993. Midwest sued Domco, and sought punitive damages. The jury found for Midwest and awarded compensatory ana punitive damages. The district court overruled Domco’s motions for judgment notwithstanding the verdict (JNOV) and new trial. Domco appeals, raising numerous issues. We need only consider whether the district court erred


No. 96-1731. MIDWEST HOME DISTRIBUTOR, INC. v. DOMCO INDUS., LTD. (continued)

in overruling (1) Domco’s motion for JNOV challenging the sufficiency of the evidence as to the fraudulent misrepresentation and punitive damages claims, (2) Domco’s motion for new trial because of an instruction on the justifiable reliance element of the fraudulent misrepresentation claim, and (3) Domco’s objections to the admissibility of testimony from former Domco distributors and a former Domco employee. OPINION HOLDS: I. Domco argues there is insufficient evidence that Midwest suffered any damage because Midwest continued to make a profit and did not have a more profitable business in the offing. In applying the benefit-of-the-bargain rule, we recognize damages are relatea to the causation question and we will consider the damages sought as the value of Midwest’s business had Domco’s representations been true. A reasonable jury could conclude that had Domco’s representations been true Midwest would have earned profits substantially higher than it did. The jury’s award was supported by the evidence. Additionally, the jury could easily find that Domco engaged in willful and wanton misconduct to justify the punitive damages award, and the award was not excessive. The district court therefore correctly denied Domco’s motions for JNOV and new trial. II. Domco failed to preserve error on its challenge to the instruction on justifiable reliance. III. The district court did not abuse its discretion in admitting the challenged testimony of Domco’s two former distributors and a Domco former employee.

No. 96-2276. BORMANN v. BOARD OF SUPERVISORS.Appeal from the Iowa District Court for Kossuth County, Patrick M. Carr,

Judge. REVERSED AND REMANDED. Considered en banc. Opinion by Lavorato, J. (24 pages $9.60)

The applicants, several landowners, applied to the Kossuth County Board of Supervisors for establishment of an “agricultural area.” The Board eventually granted the application, finding it complied with Iowa Code chapter 352 (1993). Several neighbors of the new agricultural area filed a writ of certiorari and declaratory judgment action in district court. The applicants intervened. The court ruled m favor of the neighbors, only on the claim that the Board’s action was arbitrary and capricious. After the Board corrected the arbitrary and capricious infirmity, the neighbors sought and received a certification of appeal from this court. OPINIONHOLDS: I. We think the facts here are sufficient for us to proceed under either a certiorari or declaratory judgment remedy. II. The Board’s approval of the agricultural area triggered the provisions of Iowa Code section 352.il(l)(a), giving the applicants immunity from nuisance suits. The neighbors contend the approval resulted in taking a pnvate property without the payment of just compensation in violation of federal and state constitutional provisions. We agree. The nuisance immunity provision constitutes a property right because it creates an easement in the neighbors’ properties for the benefit of the applicants. The easement entitles the applicants to do acts on their property, which, were it not for the easement, would constitute a nuisance. This amounts to a taking of private property for public use without the payment of just compensation. Tnerefore, in enacting section 352.11(1 )(a), the legislature exceeded its authority. III. The neighbors seek only invalidation of that portion


No. 96-2276. BORMANN v. BOARD OF SUPERVISORS, (continued)

of section 352.1 l(l)(a) that provides immunity against nuisance suits. We therefore need not concern ourselves with damages for any temporary taking. Accordingly, we reverse and remand for an order declaring that portion of section 352.11(1)(a) that provides for immunity against nuisances unconstitutional and without any force or effect. We reach tnis nolding with a full recognition of the deference we owe to the General Assembly. We also recognize that political and economic fallout from our holding will be substantial. But we are convinced our responsibility is clear because the challenged scheme is plainly—we think flagrantly—unconstitutional. When all the varnish is removed, the challenged statutory scheme amounts to a commandeering of valuable property rights without compensating the owners, and sacrificing those rights for the economic advantage of a few.

No. 96-1803. BOARD OF SUPERVISORS v. IOWA CIVIL RIGHTS COMM’N.

Appeal from the Iowa District Court for Buchanan County, Lawrence H. Fautsch, Judge. REVERSED AND REMANDED. Considered Dy Harris, P.J., and Carter, Neuman, Snell, and Andreasen, JJ. Opinion by Carter, J.

(11 pages $4.40)

In 1984 Alice J. Peyton was promoted from part-time jailer with the Buchanan County Sheriff s Department to head jail administrator at a pay rate of $5.00 per hour as part of a settlement of a civil rights complaint. Her predecessor in that position had been compensated at a substantially higher pay rate. After Peyton resigned to take a job elsewhere, the board of supervisors elected to staff the position with a deputy sheriff who was paid according to the established salary schedule for deputies. Such pay exceeded that of Peyton and her predecessor. Peyton filed a complaint under Iowa Code chapter 216 with the Iowa Civil Rights Commission, alleging discrimination based on gender. The commission round in her favor ana awarded her back pay and damages for emotional distress. The district court affirmed the agency action on judicial review. The board appeals. OPINION HOLDS: I. The commission improperly focused on the bare requirements of the job with no accompanying comparison of the respective qualifications and experience of Peyton and her successor by relying on the elements of a prima facie case in a federal Equal Pay Act claim. The Equal Pay Act and chapter 216, however, are dissimilar because the Act does not require a showing of discriminatory intent. Here, the county produced evidence of a valid nondiscriminatory reason for the pay differential—its decision to hire a deputy sheriff rather than a civilian. Peyton failed to show this proffered reason was pretextual. II. The commission also erred in failing to take into account the qualifications of Peyton’s predecessor in resolving the complaint. III. Peyton should not be allowed to settle one civil rights claim in consideration of the county’s payment of an agreed salary and then immediately claim that that salary is discnminatory. The commission and district court errea in failing to take this settlement into account. IV. Because the commission’s decision resulted in some part from a misapplication of law, we reverse the agency’s order and remand the case to the agency for further consideration.


No. 97-1159. STATE v. MAPP.Appeal from the Iowa District Court for Scott County, Edward B. de Silva

and C.H. Pelton, Judges. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Considered by McGiverin, C.J., and Larson, Lavorato, Neuman, and Ternus, JJ. Opinion by Larson, J. (7 pages $2.80)

On December 14, 1996, DeShawn Mapp was driving his car around Davenport with two passengers, Terrell Gathright and Mark Brown. One of the passengers noticed Marcus Tatum, a passenger in another car. Tatum and Brown had been engaged in a continuing dispute over a woman. One of Mapp’s passengers tola Mapp to follow the car, and he did. When the other car pulled into an alley, Mapp pulled in after him. Tatum and his driver got out of their car. Gunshots were fired, and Mapp testified that he “guessed” that the shots were fired from his own vehicle. Mapp did not say whether he knew before the shooting that his passengers had guns. Mapp pleaded guilty to conspiracy to commit murder and conspiracy to commit willful injury. On appeal Mapp argues that his trial counsel was ineffective for allowing him to plead guilty to two charges that lacked factual basis and that his convictions violated the Double Jeopardy Clause and our merger statute, Iowa Code § 701.9 (1995). OPINION HOLDS: I. The evidence of an agreement between Mapp and his passengers to commit the crimes of murder or willful injury was not strong, but it was at least minimally sufficient to provide a factual basis for Mapp’s guilty plea. II. Because willful injury is an included offense in murder, conspiracy to commit the lesser offense is necessarily included in conspiracy to commit murder and the two offenses are merged under section 701.9. Because of this disposition, we need not address Mapp’s double jeopardy argument or the multiple-conspiracy issue. We therefore affirm the conviction of conspiracy to commit murder. We reverse the conviction of conspiracy to commit willful injury and remand for resentencing to eliminate the sentence for that offense.

No. 97-115 5. IN RE ESTATE OF GREENWALD.Appeal from the Iowa District Court for Muscatine County, Patrick J.

Madden, Judge. AFFIRMED. Considered by McGiverin, C.J., and Larson, Lavorato, Neuman, and Ternus, JJ. Opinion by Larson, J. (5 pages $2.00)

Frances Greenwald died in 1996, survived by her husband, Harold Greenwald, a half-sister, Delores Raushenberger, and other relatives. Frances executed a will in 1973 and another will in 1988. After Frances’s death, Delores petitioned for the probate of a copy of the 1988 will. Her petition was initially granted but was rescinded on Harold’s objection the will was not signed or witnessed. Delores petitioned for a declaratory judgment establishing and probating the unsigned copy. The district court refused to recognize the copy as a will because Delores failed to rebut the presumption Frances destroyed it with intent to revoke. The court further found the 1988 will was effective to revoke the 1973 will, which was not revived under the doctrine of “dependant relative revocation.” Delores appeals. OPINION HOLDS: I. The district courtcorrectly determined the 1988 will effectively revoked the 1973 will, even though the 1988 will subsequently disappeared and was not admitted to probate. Delores does not contend that the 1988 will was invalid when it was maae. II. The 1973 will was not revived under the doctrine of dependent relative revocation. The


No. 97-1155. IN RE ESTATE OF GREENWALD. (continued)

doctrine has been applied in cases in which the subsequent will was improperly executed or was otherwise invalid. There is no evidence of that in this case, nor any other evidence that Frances intended at the time of the 1988 will that the revocation of the 1973 will be conditioned on future contingencies.

No. 97-74. STATE EX REL. HOLLEMAN V. STAFFORD.Appeal from the Iowa District Court for Fremont County, James S.

Heckerman, Judge. AFFIRMED AS MODIFIED. Considered by McGiverin, C.J., and Harris, Carter, Snell, and Andreasen, JJ. Opinion by Carter, J.

(9 pages $3.60)

Wendy and Gary Stafford’s marriage was dissolved by a Washington court on January 10, 1975. The decree granted custody of the couple’s two children to Wendy and ordered Gary to pay $100 per month per child. Gary moved to Iowa, and on September 12, 19/7, Wendy filed a petition for support under the Uniform Reciprocal Enforcement of Support Act (URESA) in Fremont County, Iowa. The district court ordered Gary to make monthly support payments of $100 for the period of time that the children were under age eighteen. The Iowa URESA order was prospective only and did not account for the existing arrearage. When all payments required by the Iowa URESA order had been made, an arrearage of more than $14,000 remained on the support due under the Washington judgment. On September 27, 1996, Iowa’s Child Support Recovery Unit, acting on Wendy’s behalf, filed a verified statement for registration of a foreign support order in Fremont County. Gary filed a motion to dismiss the judgment arguing that, because Wendy had chosen an alternative remedy of obtaining an Iowa URESA order she could not later attempt to register the foreign order in Iowa. He also urged that the defenses of equitable estoppel and laches would bar registration of the judgment and that the statute of limitations precluded collection of a substantial portion of the amount owed on the Washington judgment. The district court rejected all of Gary’s challenges, and he appeals. OPINION HOLDS: I. Wendy’s acquisition of the 1977 URESA the Washington judgment pursuant to Iowa Code section 252A.17 (1997). II. Gary’s bare assertions of prejudice are too speculative to sustain a laches or equitable estoppel defense. III. At the time the Washington judgment was registered in Iowa, the applicable statute of limitations was twenty years. We adopt the approach of otner courts that count the time for applying the statute of limitations on foreign judgments registered in those states from the time the judgment was entered in the foreign jurisdiction. We agree with Gary that the statute of limitations on enforcement of the Washington judgment Dy writ of execution was not tolled by its registration in this state and continued to run based on the times the payments became due under the Washington judgment. IV. However, with the enactment of 1997 Iowa Acts ch. 175, section 235, any existing statute of limitations on child support awards was repealed. Although this statute could not resurrect periodic payments already barred by the statute of limitations in force prior to July 1, 1997, there has been no further bar of the Washington support order by the statute of limitations after July 1, 1997. We therefore modify the district court’s order so as to provide that only collection of payments due more than twenty years prior to July 1, 1997, are barred by the


No. 97-74. STATE EX REL. HOLLEMAN Y. STAFFORD, (continued)

statute of limitations. V. We reject Gary’s contention that in determining which delinquent support payments are barred by the statute of limitations the payments that ne has made should be applied against the most recent installment then owing rather than the oldest portion of the arrearage. The most equitable approach for determining which past-due child support payments were barred by tne statute of limitations is to apply the payments that were made by the child support obligor to the oldest unpaid periodic support payment not already barred by the statute of limitations at the time the payment is tendered.

No. 96-1117. TREDREA v. ANESTHESIA & ANALGESIA, P.C.Appeal from the Iowa District Court for Scott County, Bobbi M. Alpers and

Patrick f. Madden, Judges. AFFIRMED ON BOTH APPEALS. Considered by Harris, P.J., and Larson, Lavorato, Snell, and Andreasen, JJ. Opinion by Larson, J. (23 pages $9.20)

The Genesis Medical Center in Davenport, Iowa, signed an agreement with Anesthesia and Analgesia, P.C. (A & A) under which A & A would provide anesthesiology services for Genesis. A & A’s services were to be exclusive, subject to a provision in the contract that other anesthesiologists could provide services under agreements with Genesis which were to be executed by a certain date. Any extensions in the deadline were subject to A &. A’s consent. The Genesis-A & A agreement provided that A & A would not “unreasonably withhold” its consent to an extension. These plaintiffs, two independent anesthesiologists, attempted to enter into a contract with Genesis after the deadline. A & A consented to two extensions of the deadline but refused to consent to a third. The plaintiffs sued Genesis, A &A, and the medical director of anesthesia services, on theories of: (1) breach of medical staff bylaws, (2) third-party beneficiary breach-of-contract claims based on the Genesis-A & A contract, (3) promissory estoppel, and (4) intentional interference with prospective business advantage. The district court granted Genesis summary judgment on all counts. The plaintiffs filed an amended petition against the director and A & A, alleging third-party beneficiary breach of contract, intentional interference with prospective business advantages and intentional interference with contractual relationships. The court dismissed the claims for interference with contractual relationships, concluding that the bylaws were not a contract. At trial the court dismissed the director from the case. The court allowed the plaintiffs to prove damages only prior to June 30, 1996. The jury found for the plaintiffs. A &. A appeals, and the plaintiffs cross-appeal. OPINION HOLDS: I. The plaintiffs qualify as third-party beneficiaries of the Genesis-A & A agreement and therefore nave standing to enforce A & A’s promise not to “unreasonably withhold its consent to the Hospital’s request” for the extension. II. We believe that substantial evidence supports the jury*s finding that A & A acted unreasonably in denying the last extension to support tne breach-of-contract claim against A & A. III. A & A challenges the sufficiency of the evidence of its alleged interference with a prospective business advantage, claiming it did not intentionally and improperly interfere with the relationship in one or more particulars. We disagree and find substantial evidence to support the verdict. IV. We find the trial court properly dismissed the plaintiffs’ claim against Genesis for breach of medical stafr bylaws.


No. 96-1117. TREDREA v. ANESTHESIA & ANALGESIA, P.C. (continued)

For the challenged bylaws to be considered an agreement for employment, the plaintiffs must establish with sufficient definiteness that an offer or continued employment was a part of the agreement. Because the right to continued staff privileges is not expressed in the bylaws, we will not imply an agreement for continued staff privileges and will not give the bylaws the effect of a contract. V. The trial court aid not err in dismissing plaintiffs’ claims against the director and Genesis for interference with an existing contract because the bylaws did not constitute a contract. VI. The trial court properly entered summary judgment against the plaintiffs on their claims against the director and Genesis for interference with potential business relationship because the plaintiffs did not set forth any acts that these defendants acted with a predominantly improper purpose. VII. The trial court did not abuse its discretion in limiting the plaintiffs’ claim for future damages to the term of the contract. Evidence of any damage beyond the contract’s termination date was too speculative. VIII. The trial court did not abuse its discretion in refusing A ScA’s attempts to exclude evidence of problems arising out of the peer-review process at the hospital. We affirm on both appeals.

No. 97-902. HARRIS v. IOWA DIST. CT.Appeal from the Iowa District Court for Cherokee County, Richard J.

Vipond, judge. WRIT ANNULLED. Considered by McGiverin, C.J., and Harris, Carter, Snell, and Andreasen, JJ. Opinion by Carter, J. (5 pages $2.00)

Regina Harris filed a petition in equity requesting dissolution of a common- law marriage with Roger Renken and a division of real and personal property. The district court found no marriage existed, but concluded it had equitable jurisdiction to divide the parties’ property and debts. The court awarded Roger the residential property and allowed Regina to remain there temporarily, provided she did not waste or damage the home or its contents. Roger subsequently filed an application for an order to show cause, alleging Regina violated this portion of the decree. The court found Regina in contempt and sentenced her to thirty days in jail. In this original certiorari action, Regina challenges the district court’s contempt order. OPINION HOLDS: I. We reject Regina’s claim that the court was without jurisdiction to find her in contempt. The contempt was not an effort to enforce a debt, but was punishment for disobeying the decree, which is clearly authorized under Iowa Code section 665.2(3) and (4) (1997). II. We find the contempt was supported by substantial evidence, including the testimony of Regina’s son-in-law that he had assisted her in selling Roger’s property after the order had been entered. III. We believe the court did not abuse its discretion in imposing the thirty-day jail sentence. The acts found to have occurred were \ymful and malicious ana may have made it impossible for Roger to recoup his property. We annul the writ and dissolve the order staying imprisonment, effective three days following the district court’s receipt of procedendo.

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