ARC 1886C

ARC 1886C

ENGINEERING AND LAND SURVEYING EXAMINING BOARD[193C]

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)"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 heard.

Pursuant to the authority of Iowa Code section 542B.6, the Engineering and Land Surveying Examining Board proposes to amend Chapter 7, "Professional Development," and Chapter 9, "Complaints, Investigations and Disciplinary Action," Iowa Administrative Code.

The proposed amendments to Chapter 7 expand acceptable professional development hours.

The proposed amendment to Chapter 9 provides to licensees more detailed guidance pertaining to actions or omissions that could result in disciplinary action. The guidance is patterned after similar rules previously adopted by other professional licensing boards and has been adapted to the specific laws and rules of this Board.

Stakeholder feedback was received from lobbyist David Scott, whose clients include the Iowa Engineering Society and Society of Land Surveyors of Iowa. After discussion with stakeholders at several meetings of the Board, the proposed amendments were approved by all participants.

Any interested person may make written or oral suggestions or comments on the proposed amendments on or before March 11, 2015. Comments should be directed to Robert Lampe, Executive Officer, Iowa Engineering and Land Surveying Examining Board, 200 E. Grand Avenue, Suite 350, Des Moines, Iowa 50309; by telephone at (515)725-9024; or by e-mail to robert.lampe@iowa.gov.

A public hearing will be held at 9 a.m.on March 11, 2015, at the offices of the Professional Licensing Bureau, 200 E. Grand Avenue, Suite 350, Des Moines, Iowa. At the hearing, persons who wish to speak will be asked to give their names and addresses for the record and to confine their remarks to the subject of the proposed amendments.

Any person who plans to attend the public hearing and has special requirements, such as those related to hearing or mobility impairments, should contact the Board to discuss specific needs.

These proposed amendments are subject to waiver or variance pursuant to 193—Chapter 5.

These proposed amendments were approved by the Board on January 8, 2015.

There is no fiscal impact. No current fees are being changed, and no new fees are being imposed.

After analysis and review of this rule making, no adverse impact on jobs has been found. Although there should be no impact on jobs, the Board will continue to work with stakeholders to minimize any negative impact and maximize any positive impact toward jobs.

These amendments are intended to implement Iowa Code section 542B.21.

The following amendments are proposed.

Item 1. Amend subrule 7.3(2) as follows:

7.3(2) PDH conversion. The following chart illustrates the conversion from other units to PDH:

Item 2. Rescind rule 193C—9.3(542B) and adopt the following new rule in lieu thereof:

193C—9.3(17A,272C,542B,546) Grounds for discipline. The board may initiate disciplinary action against a licensee holding an active, inactive or lapsed license on any of the following grounds:

9.3(1) Fraud or deceit in procuring a license. Fraud or deceit in procuring or attempting to procure an initial, comity, renewal, or reinstated license includes any intentional perversion of or reckless disregard for the truth when an application, or information in support of another's application, is submitted to the board, including:

a. False representation of a material fact, whether by word or by conduct, by false or misleading allegation, or by concealment of that which should have been disclosed.

b. Attempting to file or filing with the board any false or forged record or document, such as a college transcript, diploma or degree, examination report, verification of licensure, or continuing education certificate.

c. Reporting information, such as satisfaction of continuing education, in a false manner, through overt deceit, or with reckless disregard for the truth or accuracy of the information asserted.

d. Otherwise participating in any form of fraud or misrepresentation by act or omission.

9.3(2) Professional incompetence. Professional incompetence includes, but is not limited to:

a. A substantial lack of knowledge or ability to discharge professional obligations within the practice of engineering or land surveying.

b. A substantial deviation from the standards of learning or skill ordinarily possessed and applied by other practitioners in the state of Iowa acting in the same or similar circumstances.

c. A failure to exercise the degree of care which is ordinarily exercised by the average practitioner acting in the same or similar circumstances.

d. Failure to conform to the minimum standards of acceptable and prevailing practice of engineering or land surveying in this state, including the land surveying standards set forth in Iowa Code chapters 354 and 355 and 193C—Chapters 11 and 12.

e. Engaging in engineering or land surveying practices which are outside the technical competence of the licensee without taking reasonable steps to associate with a competent licensee or other steps to ensure competent practice.

f. Any other act or omission that demonstrates an inability to safely practice in a manner protective of the public's interest, including acts or omissions described in 193C—8.3(542B).

9.3(3) Deceptive practices. Deceptive practices are grounds for discipline, whether or not actual injury is established, and include, but are not limited to, the following:

a. Knowingly making misleading, deceptive, untrue or fraudulent representations in the practice of engineering or land surveying.

b. Use of untruthful or improbable statements in advertisements. Use of untruthful or improbable statements in advertisements includes, but is not limited to, an action by a licensee in making information or intention known to the public which is false, deceptive, misleading or promoted through fraud or misrepresentation.

c. Acceptance of any fee by fraud or misrepresentation.

d. Falsification of business or client records.

e. Submission of false or misleading reports or information to the board including information supplied in an audit of continuing education or as a condition of probation, or in a reference submitted for an examination or a license applicant or in any reports identified in this rule or 193C—8.3(542B).

f. Knowingly presenting as one's own the license, signature, or seal of another or of a fictitious licensee, or otherwise falsely impersonating a person holding an engineering or land surveying license.

g. Representing oneself as a professional engineer or professional land surveyor after the license has been suspended, revoked, surrendered, or placed on inactive status or has lapsed.

h. Fraud in representations as to skill or ability.

i. Any violation of Iowa Code section 542B.16 or associated rules in 193C—Chapter 6 involving a licensee's seal or certificate.

9.3(4) Unethical, harmful or detrimental conduct. Licensees engaging in unethical conduct or practices harmful or detrimental to the public may be disciplined whether or not injury is established. Behaviors and conduct which are unethical or harmful or detrimental to the public include, but are not limited to, the following actions:

a. A violation of the code of professional conduct in 193C—Chapter 8.

b. Verbal or physical abuse, or improper sexual contact, if such behavior occurs within the practice of engineering or land surveying or if such behavior otherwise provides a reasonable basis for the board to conclude that such behavior could occur within such practice and, if so, would place the public at risk.

c. Aiding or abetting a violation of a provision of Iowa Code section 542B.27(1).

9.3(5) Lack of proper qualifications. Lack of proper qualifications includes, but is not limited to:

a. Continuing to practice as an engineer or land surveyor without satisfying the continuing education required for license renewal.

b. Habitual use of or addiction to alcohol or other drugs, or other impairment, which adversely affects the licensee's ability to practice in a safe and competent manner.

c. As provided in Iowa Code section 272C.3(2)"b," any act, conduct, or condition, including lack of education or experience, or a pattern of careless or intentional acts or omissions that demonstrate a lack of qualifications which are necessary to ensure a high standard of professional care or that impair a practitioner's ability to safely and skillfully practice the profession.

9.3(6) Professional misconduct. Professional misconduct includes, but is not limited to, the following:

a. Engaging in any conduct that subverts or attempts to subvert a board investigation of a licensee, license applicant, or unlicensed firm, individual, or other entity.

b. Failure to fully cooperate with a disciplinary investigation of a licensee or license applicant or with an investigation of firms, individuals or other entities that are not licensed by the board.

c. Failure to comply with a subpoena issued by the board or to respond to a board inquiry within 30 calendar days of the date of mailing by certified mail of a written communication directed to the licensee's last address on file with the board.

d. Revocation, suspension, or other disciplinary action taken against a licensee by a licensing authority of this state or another state, territory, or country. A "disciplinary action" includes a voluntary surrender of a license to resolve a pending disciplinary investigation or proceeding. A stay by an appellate court shall not negate this requirement; however, if such disciplinary action is overturned or reversed by a court of last resort, discipline by the board based solely on such action shall be vacated.

e. Violation of the terms of an initial agreement with an impaired practitioner review committee or violation of the terms of an impaired practitioner recovery contract with an impaired practitioner review committee.

f. Engaging in the practice of engineering or land surveying while the person's license is lapsed or inactive.

g. Failure to comply with the terms of a board order or the terms of a settlement agreement or consent order or other board decision imposing discipline.

h. The board's receipt of a notice of noncompliance, as more fully described in rules 193—7.43(252J) (child support), 193—7.44(261) (student loans), and 193—7.45(272D) (state debt).

9.3(7) Willful or repeated violations. Willful or repeated violations include the willful or repeated violation or disregard of any provision of Iowa Code chapter 272C or 542 or any administrative rule adopted by the board in the administration or enforcement of such chapters.

9.3(8) Conviction of felony. Conviction of felony includes the conviction of a felony under the laws of the United States, of any state or possession of the United States, or of any other country. If such conviction is overturned or reversed by a court of last resort, discipline by the board based solely on the conviction shall be vacated.