[Prior to 5/20/87, see Aging, Commission on the[20] Ch 10]
[Prior to 1/27/10, see Elder Affairs Department[321] Ch 18]
17—18.1(17A) Petition for declaratory order. Any person may file a petition with the department on aging for a declaratory order as to the applicability to specified circumstances of a statute, rule, or order within the primary jurisdiction of the department on aging at the Iowa Department on Aging, Attn:
Director, Jessie M. Parker Building, 510 East 12th Street, Suite 2, Des Moines, Iowa 50319-9025. A petition is deemed filed when it is received by that office. The department on aging shall provide the petitioner with a file-stamped copy of the petition if the petitioner provides the department an extra copy for this purpose. The petition must be typewritten or legibly handwritten in ink and must substantially conform to the following form:
BEFORE THE DEPARTMENT ON AGING Petition by (Name of Petitioner) for a
Declaratory Order on (Cite provisions of
law involved).
}
PETITION FORDECLARATORY ORDER
The petition must provide the following information:
1. A clear and concise statement of all relevant facts on which the order is requested.
2. A citation and the relevant language of the specific statutes, rules, policies, decisions, or orders, whose applicability is questioned, and any other relevant law.
3. The questions petitioner wants answered, stated clearly and concisely.
4. The answers to the questions desired by the petitioner and a summary of the reasons urged by the petitioner in support of those answers.
5. The reasons for requesting the declaratory order and disclosure of the petitioner’s interest in the outcome.
6. A statement indicating whether the petitioner is currently a party to another proceeding involving the questions at issue and whether, to the petitioner’s knowledge, those questions have been decided by, are pending determination by, or are under investigation by, any governmental entity.
7. The names and addresses of other persons, or a description of any class of persons, known by petitioner to be affected by, or interested in, the questions presented in the petition.
8. Any request by petitioner for a meeting provided for by 17—18.7(17A).
9. The petitioner’s state identification number, if applicable.
The petition must be dated and signed by the petitioner or the petitioner’s representative. It must also include the name, mailing address, and telephone number of the petitioner and petitioner’s representative and a statement indicating the person to whom communications concerning the petition should be directed.
Application requests for an informal review of department policy, law or rules in relation to specific facts shall be in writing and may be submitted electronically or by mail. The request must recite all pertinent facts and questions. The department response to a request for informal review shall not be considered a declaratory order as specified in Iowa Code chapter 17A. The department may, at its discretion, choose to issue a declaratory order in response to a request for informal review.
[ARC 8489B, IAB 1/27/10, effective 1/7/10]
17—18.2(17A) Notice of petition. Within 15 days after receipt of a petition for a declaratory order, the department on aging shall give notice of the petition to all persons not served by the petitioner pursuant to 17—18.6(17A) to whom notice is required by any provision of law. The department on aging may also give notice to any other persons.
[ARC 8489B, IAB 1/27/10, effective 1/7/10]
17—18.3(17A) Intervention.
18.3(1) Persons who qualify under any applicable provision of law as an intervenor and who file a petition for intervention within 20 days of the filing of a petition for declaratory order (after time for notice under 17—18.2(17A) and before 30-day time for department action under 17—18.8(17A)) shall be allowed to intervene in a proceeding for a declaratory order.
18.3(2) Any person who files a petition for intervention at any time prior to the issuance of an order may be allowed to intervene in a proceeding for a declaratory order at the discretion of the department on aging.
18.3(3) A petition for intervention shall be filed at the department on aging. Such a petition is deemed filed when it is received by that office. The department on aging will provide the petitioner with a file-stamped copy of the petition for intervention if the petitioner provides an extra copy for this purpose. A petition for intervention must be typewritten or legibly handwritten in ink and must substantially conform to the following form:
BEFORE THE DEPARTMENT ON AGING Petition by (Name of Petitioner) for a
Declaratory Order on (Cite provisions of
law cited in original petition).
}
PETITION FORINTERVENTION
The petition for intervention must provide the following information:
1. Facts supporting the intervenor’s standing and qualifications for intervention.
2. The answers urged by the intervenor to the question or questions presented and a summary of the reasons urged in support of those answers.
3. Reasons for requesting intervention and disclosure of the intervenor’s interest in the outcome.
4. A statement indicating whether the intervenor is currently a party to any proceeding involving the questions at issue and whether, to the intervenor’s knowledge, those questions have been decided by, are pending determination by, or are under investigation by, any governmental entity.
5. The names and addresses of any additional persons, or a description of any additional class of persons, known by the intervenor to be affected by, or interested in, the questions presented.
6. Whether the intervenor consents to be bound by the determination of the matters presented in the declaratory order proceeding.
The petition must be dated and signed by the intervenor or the intervenor’s representative. It must also include the name, mailing address, and telephone number of the intervenor and intervenor’s representative, and a statement indicating the person to whom communications should be directed.
[ARC 8489B, IAB 1/27/10, effective 1/7/10]
17—18.4(17A) Briefs. The petitioner or any intervenor may file a brief in support of the position urged.
The department on aging may request a brief from the petitioner, any intervenor, or any other person concerning the questions raised.
[ARC 8489B, IAB 1/27/10, effective 1/7/10]
17—18.5(17A) Inquiries. Inquiries concerning the status of a declaratory order proceeding may be made to the Director, Department on Aging, Jessie M. Parker Building, 510 East 12th Street, Des Moines, Iowa 50319-9025.
[ARC 8489B, IAB 1/27/10, effective 1/7/10]
17—18.6(17A) Service and filing of petitions and other papers.
18.6(1) When service required. Except where otherwise provided by law, every petition for declaratory order, petition for intervention, brief, or other paper filed in a proceeding for a declaratory order shall be served upon each of the parties of record to the proceeding, and on all other persons identified in the petition for declaratory order or petition for intervention as affected by or interested in the questions presented, simultaneously with their filing. The party filing a document is responsible for service on all parties and other affected or interested persons.
18.6(2) Filing—when required. All petitions for declaratory orders, petitions for intervention, briefs, or other papers in a proceeding for a declaratory order shall be filed with the Director, Department on Aging, Jessie M. Parker Building, 510 East 12th Street, Des Moines, Iowa 50319-9025. All petitions, briefs, or other papers that are required to be served upon a party shall be filed simultaneously with the department on aging.
18.6(3) Method of service, time of filing, and proof of mailing. Method of service, time of filing, and proof of mailing shall be as provided by rule 17—13.12(17A).
[ARC 8489B, IAB 1/27/10, effective 1/7/10]
17—18.7(17A) Consideration. Upon request by petitioner, the department on aging must schedule a brief and informal meeting between the original petitioner, all intervenors, and the department on aging, a member of the department on aging, or a member of the staff of the department on aging, to discuss the questions raised. The department on aging may solicit comments from any person on the questions raised. Also, comments on the questions raised may be submitted to the department on aging by any person.
[ARC 8489B, IAB 1/27/10, effective 1/7/10]
17—18.8(17A) Action on petition.
18.8(1) Within the time allowed by Iowa Code section 17A.9(3) after receipt of a petition for a declaratory order, the department on aging or designee shall take action on the petition as required by Iowa Code section 17A.9(5).
18.8(2) The date of issuance of an order or of a refusal to issue an order is as defined in rule 17—13.2(17A).
[ARC 8489B, IAB 1/27/10, effective 1/7/10]
17—18.9(17A) Refusal to issue order.
18.9(1) The department on aging shall not issue a declaratory order where prohibited by Iowa Code section 17A.9 and may refuse to issue a declaratory order on some or all questions raised for the following reasons:
1. The petition does not substantially comply with the required form.
2. The petition does not contain facts sufficient to demonstrate that the petitioner will be aggrieved or adversely affected by the failure of the department on aging to issue an order.
3. The department on aging does not have jurisdiction over the questions presented in the petition.
4. The questions presented by the petition are also presented in a current rule making, contested case, or other department or judicial proceeding, that may definitively resolve them.
5. The questions presented by the petition would more properly be resolved in a different type of proceeding or by another body with jurisdiction over the matter.
6. The facts or questions presented in the petition are unclear, overbroad, insufficient, or otherwise inappropriate as a basis upon which to issue an order.
7. There is no need to issue an order because the questions raised in the petition have been settled due to a change in circumstances.
8. The petition is not based upon facts calculated to aid in the planning of future conduct but is, instead, based solely upon prior conduct in an effort to establish the effect of that conduct or to challenge a department decision already made.
9. The petition requests a declaratory order that would necessarily determine the legal rights, duties, or responsibilities of other persons who have not joined in the petition, intervened separately, or filed a similar petition and whose position on the questions presented may fairly be presumed to be adverse to that of petitioner.
10. The petitioner requests the department on aging to determine whether a statute is unconstitutional on its face.
18.9(2) A refusal to issue a declaratory order must indicate the specific grounds for the refusal and constitutes final department action on the petition.
18.9(3) Refusal to issue a declaratory order pursuant to this provision does not preclude the filing of a new petition that seeks to eliminate the grounds for the refusal to issue an order.
[ARC 8489B, IAB 1/27/10, effective 1/7/10]
17—18.10(17A) Contents of declaratory order—effective date. In addition to the order itself, a declaratory order must contain the date of its issuance, the name of petitioner and all intervenors, the specific statutes, rules, policies, decisions, or orders involved, the particular facts upon which it is based, and the reasons for its conclusion.
A declaratory order is effective on the date of issuance.
[ARC 8489B, IAB 1/27/10, effective 1/7/10]
17—18.11(17A) Copies of orders. A copy of all orders issued in response to a petition for a declaratory order shall be mailed promptly to the original petitioner and all intervenors.
[ARC 8489B, IAB 1/27/10, effective 1/7/10]
17—18.12(17A) Effect of a declaratory order. A declaratory order has the same status and binding effect as a final order issued in a contested case proceeding. It is binding on the department on aging, the petitioner, and any intervenors who consent to be bound and is applicable only in circumstances where the relevant facts and the law involved are indistinguishable from those on which the order was based.
As to all other persons, a declaratory order serves only as precedent and is not binding on the department on aging. The issuance of a declaratory order constitutes final department action on the petition.
[ARC 8489B, IAB 1/27/10, effective 1/7/10]
These rules are intended to implement Iowa Code chapters 17 and 231.
[Filed 5/20/82, Notice 3/17/82—published 6/9/82, effective 7/14/82]
[Filed 5/1/87, Notice 2/25/87—published 5/20/87, effective 6/24/87]1 [Filed 3/26/04, Notice 2/4/04—published 4/14/04, effective 5/19/04]
[Filed 12/28/07, Notice 9/12/07—published 1/30/08, effective 3/5/08]
[Filed Emergency ARC 8489B, IAB 1/27/10, effective 1/7/10]
1 Effective date of Chapter 18 delayed 70 days by the Administrative Rules Review Committee.
CHAPTER 19
PUBLIC RECORDS AND FAIR INFORMATION PRACTICES
[Prior to 5/18/88, see 321—2.6(249D)]
[Prior to 1/27/10, see Elder Affairs Department[321] Ch 19]
The department on aging hereby adopts, with the following exceptions and amendments, rules of the Governor’s Task Force on Uniform Rules of Agency Procedure relating to public records and fair information practices which are printed in the first volume of the Iowa Administrative Code.
17—19.1(17A,22) Definitions. As used in this chapter:
“Agency” in these rules means the department on aging.
“Custodian” means the department director and the division administrators.
[ARC 8489B, IAB 1/27/10, effective 1/7/10]
17—19.3(17A,22) Requests for access to records.
19.3(1) Location of record. In lieu of the words “(insert agency head)”, insert “director of the department on aging”. In lieu of the words “(insert agency name and address)”, insert “the Iowa Department on Aging, Jessie Parker Building, 510 East 12th Street, Suite 2, Des Moines, Iowa 50319-9025”.
19.3(2) Office hours. In lieu of the words “(insert customary office hours and, if the agency does not have customary office hours of at least thirty hours per week, insert hours specified in Iowa Code section 22.4)”, insert “8 a.m. to 4:30 p.m. Monday through Friday”.
19.3(7) Fees.
c. Search and supervisory fees. In lieu of the words “(specify time period)”, insert “one-half hour”.
In lieu of the parenthetical sentence at the end of the paragraph, insert “If the request requires research or if the record or records cannot readily be retrieved by the office, the requester will be advised of this fact. In addition, all costs for retrieval and copying of information stored in electronic storage systems may be charged to the requester.”
[ARC 8489B, IAB 1/27/10, effective 1/7/10]
17—19.9(17A,22) Disclosures without consent of the subject.
19.9(1) Disclosure. Open records are frequently disclosed without consent of the subject.
19.9(2) To the extent allowed by law, disclosure of confidential records may occur without the consent of the subject. Following are instances where disclosure, if lawful, will generally occur without notice to the subject:
a. For a routine use, as defined in rule 17—19.10(17A,22), or in the notice for a particular record system.
b. To a recipient who has provided the agency with advance written assurance that the record will be used solely as a statistical research or reporting record; provided, that, the record is transferred in a form that does not identify the subject.
c. To another government agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity, if the activity is authorized by law, and if the head of the government agency or instrumentality has submitted a written request to the agency specifying the record desired and the law enforcement activity for which the record is sought.
d. To an individual pursuant to a showing of compelling circumstances affecting the health or safety of an individual if a notice of the disclosure is transmitted to the last-known address of the subject.
e. To the legislative services agency.
f. Disclosures in the course of employee disciplinary proceedings.
g. In response to a court order or subpoena.
[ARC 8489B, IAB 1/27/10, effective 1/7/10]
17—19.10(17A,22) Routine use.
19.10(1) Defined. “Routine use” means the disclosure of a record without the consent of the subject or subjects, for a purpose which is compatible with the purpose for which the record was collected. It
includes disclosures required to be made by statute other than the public records law, Iowa Code chapter 22.
19.10(2) Routine uses. To the extent allowed by law, the following uses are considered to be routine uses of all agency records:
a. Disclosure to those officers, employees, and agents of the agency who have a need for the record in the performance of their duties. The custodian of the record may, upon request of any officer or employee, or on the custodian’s initiative determine what constitutes legitimate need to use confidential records.
b. Disclosure of information indicating an apparent violation of the law to appropriate law enforcement authorities for investigation and possible criminal prosecution, civil court action, or regulatory order.
c. Disclosure to the department of inspections and appeals for matters in which it is performing services or functions on behalf of the agency.
d. Transfers of information within the agency, to other state agencies, or to local units of government as appropriate to administer the program for which the information is collected.
e. Information released to staff of federal and state entities for audit purposes or for purposes of determining whether the agency is operating a program lawfully.
f. Any disclosure specifically authorized by the statute under which the record was collected or maintained.
g. Any disclosure to AAAs on matters pertinent to the performance of their responsibilities.
h. Any disclosure to care review committees on matters pertinent to the performance of their responsibilities.
i. Any disclosure to agencies and organizations which advocate for older persons and volunteer time and effort to programs so that program goals can be achieved.
[ARC 8489B, IAB 1/27/10, effective 1/7/10]
17—19.11(17A,22) Consensual disclosure of confidential records.
19.11(1) Consent to disclosure by a subject individual. To the extent permitted by law, the subject may consent in writing to agency disclosure of confidential records as provided in rule 17—19.6(17A,22).
19.11(2) Complaints to public officials. A letter from a subject of a confidential record to a public official which seeks the official’s intervention on behalf of the subject in a matter that involves the agency, to the extent permitted by law, may be treated as an authorization to release sufficient information about the subject to the official to resolve the matter.
19.11(3) Obtaining information from a third party. The agency is required to obtain information to resolve long-term care complaints received by the ombudsman, to provide information on legal assistance issues and to determine that eligibility requirements are met for care review committee members. Requests made to third parties for this information may involve the release of confidential information about individuals. Except as provided in rule 17—19.10(17A,22), the agency may make these requests only when the individual has authorized the release in writing.
[ARC 8489B, IAB 1/27/10, effective 1/7/10]
17—19.12(17A,22) Release to subject.
19.12(1) Subjects of confidential records. The subject of a confidential record may file a written request to review confidential records about that person as provided in rule 17—19.6(17A,22). However, the agency need not release the following records to the subject:
a. The identity of a person providing information to the agency need not be disclosed directly or indirectly to the subject of the information when the information is authorized to be held confidential pursuant to Iowa Code section 22.7(18) or other provision of law.
b. Records need not be disclosed to the subject when they are the work product of an attorney or are otherwise privileged.
c. Peace officers’ investigative reports may be withheld from the subject, except as required by Iowa Code section 22.7(5).
d. As otherwise authorized by law.
19.12(2) Multiple subjects. Where a record has multiple subjects with interest in the confidentiality of the record, the agency may take reasonable steps to protect confidential information relating to another subject.
[ARC 8489B, IAB 1/27/10, effective 1/7/10]
17—19.13(17A,22) Availability of records.
19.13(1) Open records. Agency records are open for public inspection and copying unless otherwise provided by rule or law.
19.13(2) Confidential records. The following records may be withheld from public inspection.
Records are listed by category, according to the legal basis for withholding them from public inspection.
a. Sealed bids received prior to the time set for public opening of bids, Iowa Code section 72.3.
b. Tax records made available to the agency under Iowa Code sections 422.20 and 422.72.
c. Any other record made confidential by law.
d. Records which are part of the long-term care resident’s advocate/ombudsman complaint system under Iowa Code section 231.43.
e. Any records which are client information for the Senior Community Service Employment Program. Pursuant to authority provided in Iowa Code section 231.51, the department administers the SCSEP program, a federally funded employment program. Federal law requires that personal information about participants be kept confidential under 20 CFR 674.203b-3(1985). The department has determined that the U.S. Department of Labor would not provide funding for the SCSEP program unless the confidentiality of participants is maintained. In order, therefore, to prevent the denial of these funds, the information will be kept confidential and any requirements to the contrary in Iowa Code
e. Any records which are client information for the Senior Community Service Employment Program. Pursuant to authority provided in Iowa Code section 231.51, the department administers the SCSEP program, a federally funded employment program. Federal law requires that personal information about participants be kept confidential under 20 CFR 674.203b-3(1985). The department has determined that the U.S. Department of Labor would not provide funding for the SCSEP program unless the confidentiality of participants is maintained. In order, therefore, to prevent the denial of these funds, the information will be kept confidential and any requirements to the contrary in Iowa Code