ARC 8289C

ARC 8289C

Proposing rulemaking related to complaints, investigations, and contested case hearings and providing an opportunity for public comment

A Regulatory Analysis for this rulemaking was published in the Iowa Administrative Bulletin on August 21, 2024. A public hearing was held on the following date(s):

●September 11, 2024

Any persons who intend to attend a public hearing and have special requirements, such as those related to hearing or mobility impairments, should contact the Board and advise of specific needs.

ITEM 1.Rescind 282—Chapter 11 and adopt the following new chapter in lieu thereof:

CHAPTER 11

COMPLAINTS, INVESTIGATIONS, CONTESTED CASE HEARINGS

282—11.1(17A,256) Scope and applicability. This chapter applies to contested case proceedings conducted by the board of educational examiners.

282—11.2(17A) Definitions. Except where otherwise specifically defined by law:

“Board” means the board of educational examiners.

“Complainant” means any qualified party who files a complaint with the board.

“Contested case” means a proceeding defined by Iowa Code section 17A.2(5) and includes any matter defined as a no factual dispute contested case under Iowa Code section 17A.10A.

“In-person hearing” means an appeal hearing where the administrative law judge and appellant are physically present in the same location but witnesses are not required to be physically present.

“Issuance” means the date of mailing of a decision or order or date of delivery if service is by other means unless another date is specified in the order.

“Party” means each person or agency named or admitted as a party or properly seeking and entitled as of right to be admitted as a party.

“Presiding officer” means an administrative law judge from the department of inspections, appeals, and licensing or the full board or a three-member panel of the board.

“Proposed decision” means the presiding officer’s recommended findings of fact, conclusions of law, decision, and order in a contested case in which the full board did not preside.

“Respondent” means any individual who is charged in a complaint with violating the criteria of professional practices or the criteria of competent performance.

282—11.3(17A,256) Jurisdictional requirements.

11.3(1) The case must relate to alleged violation of the criteria of professional practices or the criteria of competent performance.

11.3(2) The magnitude of the alleged violation must be adequate to warrant a hearing by the board.

11.3(3) There must be sufficient evidence to support the complaint.

11.3(4) The complaint must be filed by a person who has personal knowledge of an alleged violation and must include a concise statement of facts that clearly and specifically apprises the respondent of the details of the allegation(s).

11.3(5) The complaint must be filed within three years of the occurrence of the conduct upon which it is based or discovery of the conduct by the complainant unless good cause can be shown for extension of this limitation or unless the conduct constitutes conduct described in Iowa Code section 256.160(1)“a”(1)(a).

11.3(6) The jurisdictional requirements must be met on the face of the complaint before the board may order an investigation of the allegation(s) of the complaint.

282—11.4(17A,256) Complaint.

11.4(1) Who may initiate. The following entities may initiate a complaint:

a.Licensed practitioners.

b.School human resource directors.

c.Recognized educational entities or local or state professional organizations.

d.Local boards of education.

e.Parents or guardians of students involved in the alleged complaint.

f.The executive director of the board of educational examiners if the following circumstances have been met:

(1)The executive director receives information that a practitioner:

1.Has been convicted of a felony criminal offense, or a misdemeanor criminal offense wherein the victim of the crime was 18 years of age or younger, and the executive director expressly determines within the complaint that the nature of the offense clearly and directly impacts the practitioner’s fitness or ability to retain the specific license(s) or authorization(s) that the practitioner holds; or

2.Has been the subject of a founded report of child abuse placed upon the central registry maintained by the department of health and human services pursuant to Iowa Code section 232.71D, and the executive director expressly determines within the complaint that the nature of the offense clearly and directly impacts the practitioner’s fitness or ability to retain the specific license(s) or authorization(s) that the practitioner holds; or

3.Has not met a reporting requirement stipulated by Iowa Code section 256.160, Iowa Code section 279.43, 281—subrule 102.11(2), 282—Chapter 11, or 282—Chapter 25; or

4.Has falsified a license or authorization issued by the board; or

5.Has submitted false information on a license or authorization application filed with the board; or

6.Does not hold the appropriate license for the assignment for which the practitioner is currently employed; or

7.Has assigned another practitioner to perform services for which the practitioner is not properly licensed; or

8.Has failed to comply with a board order as prohibited by 282—paragraph 25.3(7)“c”; and

(2)The executive director verifies the information or the alleged misconduct through review of official records maintained by the board, a court, the department of health and human services registry of founded child abuse reports, the practitioner licensing authority of another state, the department of education, the local school district, area education agency, or authorities in charge of the nonpublic school, or the executive director is presented with the falsified license; and

(3)No other complaint has been filed.

g.The department of transportation if the licensee named in the complaint holds a behind-the-wheel instructor’s certification issued by the department and the complaint relates to an incident or incidents arising during the course of driver’s education instruction.

h.An employee of the department of education who, while performing official duties, becomes aware of any alleged misconduct by an individual licensed under Iowa Code section 256.146.

11.4(2) Form and content of the complaint.

a.The complaint will be in writing and signed by at least one complainant who has personal knowledge of an alleged violation of the board’s rules or related state law or an authorized representative if the complainant is an organization. (An official form may be used. This form may be obtained from the board upon request, and a typed signature may be accepted.)

b.The complaint will show venue as “BEFORE THE BOARD OF EDUCATIONAL EXAMINERS” and will be captioned “COMPLAINT.”

c.The complaint will contain the following information:

(1)The full name, address and telephone number of the complainant.

(2)The full name, address and telephone number, if known, of the respondent.

(3)A concise statement of the facts that clearly and specifically apprises the respondent of the details of the alleged violation of the criteria of professional practices or the criteria of competent performance and the relief sought by the complainant.

(4)An explanation of the basis of the complainant’s personal knowledge of the facts underlying the complaint.

11.4(3) Required copies—place and time of filing the complaint.

a.A copy of the complaint will be filed with the board.

b.The complaint will be delivered personally, electronically, or by mail to the office of the board. The current office address is 701 East Court Avenue, Suite A, Des Moines, Iowa 50309.

11.4(4) Amendment or withdrawal of complaint. A complaint or any specification thereof may be amended or withdrawn by the complainant at any time unless the complaint was filed in accordance with the required reporting requirements set forth in Iowa Code sections 256.146, 260.160, and 279.73. The parties to a complaint may mutually agree to the resolution of the complaint prior to a finding of probable cause unless the complaint was filed in accordance with the required reporting requirements set forth in Iowa Code sections 256.146, 256.160, and 279.73. The resolution must be committed to a written agreement and filed with the board. The agreement is not subject to approval by the board but will be acknowledged by the board and may be incorporated into an order of the board.

11.4(5) Respondent entitled to copy of the complaint. Immediately upon the board’s determination that jurisdictional requirements have been met, the respondent will be provided a copy of the complaint or amended complaint and any supporting documents attached to the complaint at the time of filing.

11.4(6) Voluntary surrender of license—agreement to accept lesser sanction. A practitioner may voluntarily surrender the practitioner’s license or agree to accept a lesser sanction from the board prior to or after the filing of a complaint with the board without admitting the truth of the allegations of the complaint if a complaint is on file with the board. In order to voluntarily surrender a license or submit to a sanction, the practitioner must waive the right to hearing before the board and notify the board of the intent to surrender or accept sanction. The board may issue an order permanently revoking the practitioner’s license if it is surrendered, or implementing the agreed upon sanction. The board may decline to issue an agreed upon sanction if, in the board’s judgment, the agreed upon sanction is not appropriate for the circumstances of the case.

11.4(7) Investigation of license reports.

a.Reports received by the board from another state, territory or other jurisdiction concerning licenses or certificate revocation or suspension will be reviewed and investigated by the board in the same manner as is prescribed in these rules for the review and investigation of written complaints.

b.Failure to report a license revocation, suspension or other disciplinary action taken by licensing authority of another state, territory or jurisdiction within 30 days of the final action by such licensing authority will constitute cause for initiation of an investigation.

11.4(8) Timely resolution of complaints. Complaints filed with the board will be resolved within 180 days unless good cause can be shown for an extension of this limitation. The board will provide notice to the parties to a complaint prior to taking action to extend this time limitation upon its own motion.

11.4(9) Confidentiality. Confidentiality requirements are set forth in Iowa Code section 256.158. Records related to written complaints will be collected and retained and will be evaluated if a similar complaint has been filed against the same licensed practitioner. A finding of probable cause, a final written decision, and a finding of fact by the board in a disciplinary proceeding constitute a public record.

282—11.5(256) Investigation of complaints or license reports. The chairperson of the board or the chairperson’s designee may request an investigator to investigate the complaint or report received by the board from another state, territory or other jurisdiction concerning license or certificate revocation or suspension pursuant to subrule 11.4(7); providing that the jurisdictional requirements have been met on the face of the complaint. The investigation will be limited to the allegations contained on the face of the complaint. The investigator may consult an assistant attorney general concerning the investigation or evidence produced from the investigation. Upon completion of the investigation, the investigator will prepare a report of the investigation for consideration by the board in determining whether probable cause exists.

282—11.6(256) Ruling on the initial inquiry. Upon review of the investigator’s report, the board may take any of the following actions:

11.6(1) Reject the case. If a determination is made by the board to reject the case, the complaint will be returned to the complainant along with a statement specifying the reasons for rejection. A letter of explanation concerning the decision of the board will be sent to the respondent.

11.6(2) Require further inquiry. If determination is made by the board to order further inquiry, the complaint and recommendations by the investigator(s) will be returned to the investigator(s) along with a statement specifying the information deemed necessary.

11.6(3) Accept the case. If a determination is made by the board that probable cause exists to conclude that the criteria of professional practices or the criteria of competent performance have been violated, notice may be issued, pursuant to rule 282—11.7(17A,256), and a formal hearing may be conducted in accordance with rules 282—11.7(17A,256) through 282—11.21(17A,256) unless a voluntary waiver of hearing has been filed by the respondent pursuant to the provisions of subrule 11.4(6). In determining whether to issue a notice of hearing, the board may consider the following:

a.Whether the alleged violation is of sufficient magnitude to warrant a hearing by the board.

b.Whether there is sufficient evidence to support the complaint.

c.Whether the alleged violation was an isolated incident.

d.Whether adequate steps have been taken at the local level to ensure similar behavior does not occur in the future.

11.6(4) Release the investigative report. If the board finds probable cause of a violation, the investigative report will be available to the respondent upon request. Information contained within the report is confidential and may be used only in connection with the disciplinary proceedings before the board.

282—11.7(17A,256) Notice of hearing.

11.7(1) Delivery. Delivery of the notice of hearing constitutes the commencement of the contested case proceeding. Delivery may be executed by:

a.Personal service as provided in the Iowa Rules of Civil Procedure; or

b.Certified mail, return receipt requested; or

c.Publication, as provided in the Iowa Rules of Civil Procedure.

11.7(2) Contents. The notice of hearing will contain the following information:

a.A statement of the time, date, place, and nature of the hearing;

b.A statement of the legal authority and jurisdiction under which the hearing is to be held;

c.A reference to the particular sections of the statutes and rules involved;

d.A short and plain statement of the matter asserted;

e.Identification of all parties including the name, address and telephone numbers of counsel representing each of the parties where known;

f.Reference to the procedural rules governing conduct of the contested case proceeding;

g.Identification of the presiding officer, if known. If not known, a description of who will serve as presiding officer; and

h.Notification of the time period in which a party may request, pursuant to Iowa Code section 17A.11 and rule 282—11.8(17A,256), that the presiding officer be an administrative law judge.

282—11.8(17A,256) Presiding officer.

11.8(1) Any party who wishes to request that the presiding officer assigned to render a proposed decision be an administrative law judge employed by the department of inspections, appeals, and licensing must file a written request within 20 days after service of a notice of hearing that identifies or describes the presiding officer as the board.

11.8(2) The board may deny the request only upon a finding that one or more of the following apply:

a.Neither the board nor any officer of the board under whose authority the contested case is to take place is a named party to the proceeding or a real party in interest to that proceeding.

b.There is a compelling need to expedite issuance of a final decision in order to protect the public health, safety, or welfare.

c.An administrative law judge with the qualifications identified in subrule 11.8(4) is unavailable to hear the case within a reasonable time.

d.The case involves significant policy issues of first impression that are inextricably intertwined with the factual issues presented.

e.The demeanor of the witnesses is likely to be dispositive in resolving the disputed factual issues.

f.Funds are unavailable to pay the costs of an administrative law judge and an interagency appeal.

g.The request was not timely filed.

h.The request is not consistent with a specified statute.

11.8(3) The board will issue a written ruling specifying the grounds for its decision within 20 days after a request for an administrative law judge is filed. If the ruling is contingent upon the availability of an administrative law judge with the qualifications identified in subrule 11.8(4), the parties will be notified at least ten days prior to hearing if a qualified administrative law judge will not be available.

11.8(4) An administrative law judge assigned to act as presiding officer in a contested case will have the following technical expertness unless waived by the board:

a.A Juris Doctor degree.

b.Additional criteria, which may be added by the board.

11.8(5) Except as provided otherwise by another provision of law, all rulings by an administrative law judge acting as presiding officer are subject to appeal to the board. A party must seek any available intra-agency appeal in order to exhaust adequate administrative remedies.

11.8(6) Unless otherwise provided by law, the board, when reviewing a proposed decision upon intra-agency appeal, will have the powers of and will comply with the provisions of this chapter that apply to presiding officers.

282—11.9(17A,256) Waiver of procedures. Unless otherwise precluded by law, the parties in a contested case proceeding may waive any provision of this chapter. However, the board in its discretion may refuse to give effect to such a waiver when it deems the waiver to be inconsistent with the public interest.

282—11.10(17A,256) Telephone or electronic proceedings. The presiding officer may resolve preliminary procedural motions by telephone or electronic conference in which all parties have an opportunity to participate. Other telephone or electronic proceedings may be held with the consent of all parties. The presiding officer will determine the location of the parties for telephone or electronic hearings. The convenience of the parties, as well as the nature of the case, will be considered when location is chosen.

282—11.11(17A,256) Disqualification.

11.11(1) A presiding officer or board member will withdraw from participation in the making of any proposed or final decision in a contested case if that person:

a.Has a personal bias or prejudice concerning a party or a representative of a party;

b.Has personally investigated, prosecuted or advocated in connection with that case, the specific controversy underlying that case, another pending factually related contested case, or a pending factually related controversy that may culminate in a contested case involving the same parties;

c.Is subject to the authority, direction or discretion of any person who has personally investigated, prosecuted or advocated in connection with that contested case, the specific controversy underlying that contested case, or a pending factually related contested case or controversy involving the same parties;

d.Has acted as counsel to any person who is a private party to that proceeding within the past two years;

e.Has a personal financial interest in the outcome of the case or any other significant personal interest that could be substantially affected by the outcome of the case;

f.Has a spouse or relative within the third degree of relationship that: (1) is a party to the case, or an officer, director or trustee of a party; (2) is a lawyer in the case; (3) is known to have an interest that could be substantially affected by the outcome of the case; or (4) is likely to be a material witness in the case; or

g.Has any other legally sufficient cause to withdraw from participation in the decision making in that case.

11.11(2) The term “personally investigated” means taking affirmative steps to interview witnesses directly or to obtain documents or other information directly. The term “personally investigated” does not include general direction and supervision of assigned investigators, unsolicited receipt of information that is relayed to assigned investigators, review of another person’s investigative work product in the course of determining whether there is probable cause to initiate a proceeding, or exposure to factual information while performing other agency functions, including fact gathering for purposes other than investigation of the matter that culminates in a contested case. Factual information relevant to the merits of a contested case received by a person who later serves as presiding officer in that case will be disclosed if required by Iowa Code section 17A.17 and subrules 11.11(3) and 11.24(9).

11.11(3) In a situation where a presiding officer or board member knows of information that might reasonably be deemed to be a basis for disqualification and decides voluntary withdrawal is unnecessary, that person will submit the relevant information for the record by affidavit and will provide for the record a statement of the reasons for the determination that withdrawal is unnecessary.

11.11(4) If a party asserts disqualification on any appropriate ground, including those listed in subrule 11.11(1), the party will file a motion supported by an affidavit pursuant to Iowa Code section 17A.17(7). The motion must be filed as soon as practicable after the reason alleged in the motion becomes known to the party.

If the presiding officer determines that disqualification is appropriate, the presiding officer or board member will withdraw. If the presiding officer determines that withdrawal is not required, the presiding officer will enter an order to that effect. A party asserting disqualification may seek an interlocutory appeal under rule 282—11.26(17A,256) and seek a stay under rule 282—11.30(17A,256).

282—11.12(17A,256) Consolidation—severance.

11.12(1) Consolidation. The presiding officer may consolidate any or all matters at issue in two or more contested case proceedings where: (a) the matters at issue involve common parties or common questions of fact or law; (b) consolidation would expedite and simplify consideration of the issues involved; and (c) consolidation would not adversely affect the rights of any of the parties to those proceedings.

11.12(2) Severance. The presiding officer may, for good cause shown, order any contested case proceedings or portions thereof severed.

282—11.13(17A,256) Pleadings.

11.13(1) Pleadings may be required by rule, by the notice of hearing, or by order of the presiding officer.

11.13(2) Answer. An answer will be filed within 20 days of service of the notice of hearing unless otherwise ordered. A party may move to dismiss or apply for a more definite and detailed statement when appropriate.

An answer will show on whose behalf it is filed and specifically admit, deny, or otherwise answer all material allegations of the notice of hearing to which it responds. It will state any facts deemed to show an affirmative defense and contain as many additional defenses as the pleader may claim.

An answer will state the name, address and telephone number of the person filing the answer, the person or entity on whose behalf it is filed, and the attorney representing that person, if any.

Any allegation in the notice of hearing not denied in the answer is considered admitted. The presiding officer may refuse to consider any defense not raised in the answer that could have been raised on the basis of facts known when the answer was filed if any party would be prejudiced.

11.13(3) Amendment. Notices of hearing and answers may be amended with the consent of the parties or in the discretion of the presiding officer who may impose terms or grant a continuance.

282—11.14(17A,256) Service and filing of pleadings and other papers.

11.14(1) Service—when required. Except where otherwise provided by law, every document filed in a contested case proceeding will be served upon each of the parties of record to the proceeding, simultaneously with their filing. Except for the original notice of hearing and an application for rehearing as provided in Iowa Code section 17A.16(2), the party filing a document is responsible for service on all parties.

11.14(2) Service—how made. Service upon a party represented by an attorney will be made upon the attorney unless otherwise ordered. Service is made by delivery or by mailing a copy to the person’s last-known address. Service by mail is complete upon mailing, except where otherwise specifically provided by statute, rule, or order.

11.14(3) Filing—when required. After the notice of hearing, all documents in a contested case proceeding will be filed with the Board of Educational Examiners, 701 East Court Avenue, Suite A, Des Moines, Iowa 50309. All documents that are required to be served upon a party will be filed simultaneously with the board.

11.14(4) Filing—when made. Except where otherwise provided by law, a document is deemed filed at the time it is delivered to the board, delivered to an established courier service for immediate delivery to that office, or mailed by first-class mail or state interoffice mail to that office, so long as there is proof of mailing.

11.14(5) Proof of mailing. Proof of mailing includes either a legible United States Postal Service postmark on the envelope, a certificate of service, a notarized affidavit, or a certification in substantially the following form:

282—11.15(17A,256) Discovery.

11.15(1) The following Iowa Rules of Civil Procedure applicable to discovery are available for use in contested cases: 1.1701, 1.507, 1.509, 1.510, 1.511 and 1.512.

11.15(2) A party may file a motion to compel or other motion related to discovery in accordance with this subrule. Any motion filed with the presiding officer relating to discovery shall allege that the moving party has previously made a good-faith attempt to resolve the discovery issues involved with the opposing party. Motions in regard to discovery shall be ruled upon by the presiding officer. Opposing parties shall be afforded the opportunity to respond within ten days of the filing of the motion unless the time is lengthened or shortened by the presiding officer. The presiding officer may rule on the basis of the written motion and any response or may order argument on the motion.

11.15(3) Evidence obtained in such discovery may be used in contested case proceedings if the evidence would otherwise be admissible in the contested case proceedings.

282—11.16(17A,256) Subpoenas.

11.16(1) Subpoenas. In connection with the investigation set forth in rule 282—11.5(256), the board is authorized by law to subpoena books, papers, records and any other evidence to help it determine whether it should institute a contested case proceeding (hearing). After service of the hearing notification contemplated by rule 282—11.7(17A,256), the following procedures are available to the parties in order to obtain relevant and material evidence:

a.Board subpoenas for books, papers, records, and other evidence will be issued to a party upon request. Such a request will be in writing. Application should be made to the board office specifying the evidence sought. Subpoenas for witnesses may also be obtained.

b.Evidence obtained by subpoena will be admissible at the hearing if it is otherwise admissible under rule 282—11.22(17A,256). In subpoena matters, the parties will honor the rules of privilege imposed by law.

c.The evidence outlined in Iowa Code section 17A.13(2) where applicable and relevant will be made available to a party upon request.

d.Except to the extent otherwise provided by law, parties are responsible for service of their own subpoenas and payment of witness fees and mileage expenses.

11.16(2) Motion to quash or modify. The presiding officer may quash or modify a subpoena for any lawful reason upon motion in accordance with the Iowa Rules of Civil Procedure. A motion to quash or modify a subpoena will be set for argument promptly.

282—11.17(17A,256) Motions.

11.17(1) No technical form for motions is required. However, prehearing motions must be in writing, state the grounds for relief, and state the relief sought.

11.17(2) Any party may file a written response to a motion within 15 days after the motion is served unless the time period is extended or shortened by rules of the agency or the presiding officer.

11.17(3) The presiding officer may schedule oral arguments on any motion.

11.17(4) Motions pertaining to the hearing, including motions for summary judgment, must be filed and served at least ten days prior to the date of hearing unless there is good cause for permitting later action or the time for such action is lengthened or shortened by rule of the agency or an order of the presiding officer.

282—11.18(17A,256) Prehearing conference.

11.18(1) Any party may request a prehearing conference. A written request for prehearing conference or an order for prehearing conference on the presiding officer’s own motion will be filed not less than seven days prior to the hearing date. A prehearing conference will be conducted not less than three business days prior to the hearing date.

Written notice of the prehearing conference will be given by the presiding officer to all parties. For good cause, the presiding officer may permit variances from this rule.

11.18(2) Each party will bring to the prehearing conference:

a.A final list of the witnesses who the party anticipates will testify at hearing. Witnesses not listed may be excluded from testifying unless there was good cause for the failure to include their names; and

b.A final list of exhibits that the party anticipates will be introduced at hearing. Exhibits other than rebuttal exhibits that are not listed may be excluded from admission into evidence unless there was good cause for the failure to include them.

Witness or exhibit lists may be amended subsequent to the prehearing conference within the time limits established by the presiding officer at the prehearing conference. Any such amendments must be served on all parties.

11.18(3) In addition to the requirements of subrule 11.18(2), the parties at a prehearing conference may:

a.Enter into stipulations of law or fact;

b.Enter into stipulations on the admissibility of exhibits;

c.Identify matters that the parties intend to request be officially noticed;

d.Enter into stipulations for waiver of any provision of law; and

e.Consider any additional matters that will expedite the hearing.

11.18(4) Prehearing conferences will be conducted by telephone unless otherwise ordered. Parties will exchange and receive witness and exhibit lists in advance of a telephone prehearing conference.

282—11.19(17A,256) Continuances. A party has no automatic right to a continuance or delay of the board’s hearing procedure or schedule. However, a party may request a continuance of the presiding officer no later than seven days prior to the date set for hearing. The presiding officer will have the power to grant continuances. Within seven days of the date set for hearing, no continuances will be granted except for extraordinary, extenuating or emergency circumstances. In these situations, the presiding officer will grant continuances after consultation, if needed, with the chairperson of the board, the executive director, or the attorney representing the board. A board member will not be contacted in person, by mail or by telephone by a party seeking a continuance.

282—11.20(17A,256) Intervention.

11.20(1) Motion. A motion for leave to intervene in a contested case proceeding will state the grounds for the proposed intervention, the position and interest of the proposed intervenor, and the possible impact of intervention on the proceeding. A proposed answer or petition in intervention will be attached to the motion. Any party may file a response within 14 days of service of the motion to intervene unless the time period is extended or shortened by the presiding officer.

11.20(2) When filed. Motion for leave to intervene will be filed as early in the proceeding as possible to avoid adverse impact on existing parties or the conduct of the proceeding. Unless otherwise ordered, a motion for leave to intervene will be filed before the prehearing conference, if any, or at least 20 days before the date scheduled for hearing. Any later motion must contain a statement of good cause for the failure to file in a timely manner. Unless inequitable or unjust, an intervenor will be bound by any agreement, arrangement, or other matter previously raised in the case. Requests by untimely intervenors for continuances that would delay the proceeding will ordinarily be denied.

11.20(3) Grounds for intervention. The movant will demonstrate that:

a.Intervention would not unduly prolong the proceedings or otherwise prejudice the rights of existing parties;

b.The movant is likely to be aggrieved or adversely affected by a final order in the proceeding; and

c.The interests of the movant are not adequately represented by existing parties.

11.20(4) Effect of intervention. If appropriate, the presiding officer may order consolidation of the petitions and briefs of different parties whose interests are aligned with each other and limit the number of representatives allowed to participate actively in the proceedings. A person granted leave to intervene is a party to the proceeding. The order granting intervention may restrict the issues that may be raised by the intervenor or otherwise condition the intervenor’s participation in the proceeding.

282—11.21(17A,256) Hearing procedures.

11.21(1) The presiding officer presides at the hearing and may rule on motions, require briefs, issue a proposed decision, and issue such orders and rulings as will ensure the orderly conduct of the proceedings. If the presiding officer is the board or a panel thereof, an administrative law judge from the department of inspections, appeals, and licensing may be designated to assist the board in conducting proceedings under this chapter. An administrative law judge so designated may rule upon motions and other procedural matters and assist the board in conducting the hearing.

11.21(2) All objections will be timely made and stated on the record.

11.21(3) Legal representation.

a.The respondent has a right to participate in all hearings or prehearing conferences and may be represented by an attorney or another person authorized by law.

b. The office of the attorney general or an attorney designated by the executive director will be responsible for prosecuting complaint allegations in all contested case proceedings before the board, except those cases in which the sole allegation involves the failure of a practitioner to fulfill contractual obligations. The assistant attorney general or other designated attorney assigned to prosecute a contested case before the board will not represent the board or the complainant in that case but will represent the public interest.

c.In a case in which the sole allegation involves the failure of a practitioner to fulfill contractual obligations, the person who files the complaint with the board, or the complainant’s designee, will represent the complainant during the contested case proceedings.

11.21(4) Subject to terms and conditions prescribed by the presiding officer, parties have the right to introduce evidence on issues of material fact, cross-examine witnesses present at the hearing as necessary for a full and true disclosure of the facts, present evidence in rebuttal, and submit briefs and engage in oral argument.

11.21(5) The presiding officer will maintain the decorum of the hearing and may refuse to admit or may expel anyone whose conduct is disorderly.

11.21(6) Witnesses may be sequestered during the hearing.

11.21(7) The presiding officer will conduct the hearing in the following manner:

a.The presiding officer will give an opening statement briefly describing the nature of the proceedings;

b.The parties will be given an opportunity to present opening statements;

c.Parties will present their cases in the sequence determined by the presiding officer;

d.Each witness will be sworn or affirmed by the presiding officer or the court reporter and be subject to examination and cross-examination. The presiding officer may limit questioning in a manner consistent with law;

e.When all parties and witnesses have been heard, parties may be given the opportunity to present final arguments.

282—11.22(17A,256) Evidence.

11.22(1) The presiding officer will rule on admissibility of evidence and may, where appropriate, take official notice of facts in accordance with all applicable requirements of law.

11.22(2) Stipulation of facts is encouraged. The presiding officer may make a decision based on stipulated facts.

11.22(3) Evidence in the proceeding will be confined to the issues concerning allegations raised on the face of the complaint as to which the parties received notice prior to the hearing.

11.22(4) The party seeking admission of an exhibit must provide opposing parties with an opportunity to examine the exhibit prior to the ruling on its admissibility. Copies of documents should normally be provided to opposing parties.

All exhibits admitted into evidence will be appropriately marked and be made part of the record.

11.22(5) Any party may object to specific evidence or may request limits on the scope of any examination or cross-examination. Such an objection will be accompanied by a brief statement of the grounds upon which it is based. The objection, the ruling on the objection, and the reasons for the ruling will be noted in the record. The presiding officer may rule on the objection at the time it is made or may reserve a ruling until the written decision.

11.22(6) Whenever evidence is ruled inadmissible, the party offering that evidence may submit an offer of proof on the record. The party making the offer of proof for excluded oral testimony will briefly summarize the testimony or, with permission of the presiding officer, present the testimony. If the excluded evidence consists of a document or exhibit, it will be marked as part of an offer of proof and inserted in the record.

282—11.23(17A,256) Default.

11.23(1) If a party fails to appear or participate in a contested case proceeding after proper service of notice, the presiding officer may, if no adjournment is granted, enter a default decision or proceed with the hearing and render a decision in the absence of the party.

11.23(2) Where appropriate and not contrary to law, any party may move for default against a party who has requested the contested case proceeding and has failed to file a required pleading or has failed to appear after proper service.

11.23(3) Default decisions or decisions rendered on the merits after a party has failed to appear or participate in a contested case proceeding become final agency action unless, within 15 days after the date of notification or mailing of the decision, a motion to vacate is filed and served on all parties or an appeal of a decision on the merits is timely initiated within the time provided by rule 282—11.28(17A,256). A motion to vacate must state all facts relied upon by the moving party that establish that good cause existed for that party’s failure to appear or participate at the contested case proceeding. Each fact so stated must be substantiated by at least one sworn affidavit of a person with personal knowledge of each such fact, which affidavit(s) must be attached to the motion.

11.23(4) The time for further appeal of a decision for which a timely motion to vacate has been filed is stayed pending a decision on the motion to vacate.

11.23(5)  Properly substantiated and timely filed motions to vacate will be granted only for good cause shown. The burden of proof as to good cause is on the moving party. Adverse parties will have ten days to respond to a motion to vacate. Adverse parties will be allowed to conduct discovery as to the issue of good cause and to present evidence on the issue prior to a decision on the motion, if a request to do so is included in that party’s response.

11.23(6) “Good cause” for purposes of this rule will have the same meaning as “good cause” for setting aside a default judgment under Iowa Rule of Civil Procedure 1.977.

11.23(7) A decision denying a motion to vacate is subject to further appeal within the time limit allowed for further appeal of a decision on the merits in the contested case proceeding. A decision granting a motion to vacate is subject to interlocutory appeal by the adverse party pursuant to rule 282—11.26(17A,256).

11.23(8) If a motion to vacate is granted and no timely interlocutory appeal has been taken, the presiding officer will issue another notice of hearing and the contested case will proceed accordingly.

11.23(9) A default decision may award any relief consistent with the request for relief made in the petition and embraced in its issues (but, unless the defaulting party has appeared, it cannot exceed the relief demanded).

11.23(10) A default decision may provide either that the default decision is to be stayed pending a timely motion to vacate or that the default decision is to take effect immediately, subject to a request for stay under rule 282—11.30(17A,256).

282—11.24(17A,256) Ex parte communication.

11.24(1) Prohibited communications. Unless required for the disposition of ex parte matters specifically authorized by statute, following issuance of the notice of hearing, there will be no communication, directly or indirectly, between the presiding officer and any party or representative of any party or any other person with a direct or indirect interest in such case in connection with any issue of fact or law in the case except upon notice and opportunity for all parties to participate. This does not prohibit persons jointly assigned such tasks from communicating with each other. Nothing in this provision is intended to preclude the presiding officer from communicating with members of the board or seeking the advice or help of persons other than those with a personal interest in, or those engaged in personally investigating as defined in subrule 11.11(2), prosecuting, or advocating in, either the case under consideration or a pending factually related case involving the same parties as long as those persons do not directly or indirectly communicate to the presiding officer any ex parte communications they have received of a type that the presiding officer would be prohibited from receiving or that furnish, augment, diminish, or modify the evidence in the record.

11.24(2) Prohibitions on ex parte communications commence with the issuance of the notice of hearing in a contested case and continue for as long as the case is pending.

11.24(3) Written, oral or other forms of communication are “ex parte” if made without notice and opportunity for all parties to participate.

11.24(4) To avoid prohibited ex parte communications, notice must be given in a manner reasonably calculated to give all parties a fair opportunity to participate. Notice of written communications will be provided in compliance with rule 282—11.13(17A,256) and may be supplemented by telephone, facsimile, electronic mail or other means of notification. Where permitted, oral communications may be initiated through conference telephone call including all parties or their representatives.

11.24(5) Board members acting as presiding officers may communicate with each other without notice or opportunity for parties to participate.

11.24(6) The executive director or other persons may be present in deliberations or otherwise advise the presiding officer without notice or opportunity for parties to participate as long as they are not disqualified from participating in the making of a proposed or final decision under any provision of law and they comply with subrule 11.24(1).

11.24(7) Communications with the presiding officer involving uncontested scheduling or procedural matters do not require notice or opportunity for parties to participate. Parties should notify other parties prior to initiating such contact with the presiding officer when feasible and will notify other parties when seeking to continue hearings or other deadlines pursuant to rule 282—11.19(17A,256).

11.24(8) Disclosure of prohibited communications. A presiding officer who receives a prohibited ex parte communication during the pendency of a contested case must initially determine if the effect of the communication is so prejudicial that the presiding officer should be disqualified. If the presiding officer determines that disqualification is warranted, a copy of any prohibited written communication, all written responses to the communication, a written summary stating the substance of any prohibited oral or other communication not available in written form for disclosure, all responses made, and the identity of each person from whom the presiding officer received a prohibited ex parte communication will be submitted for inclusion in the record under seal by protective order (or disclosed). If the presiding officer determines that disqualification is not warranted, such documents will be submitted for inclusion in the record and served on all parties. Any party desiring to rebut the prohibited communication must be allowed the opportunity to do so upon written request filed within ten days after notice of the communication.

11.24(9) Promptly after being assigned to serve as presiding officer at any stage in a contested case proceeding, a presiding officer will disclose to all parties material factual information received through ex parte communication prior to such assignment unless the factual information has already been or shortly will be disclosed pursuant to Iowa Code section 17A.13(2) or through discovery. Factual information contained in an investigative report or similar document need not be separately disclosed by the presiding officer as long as such documents have been or will shortly be provided to the parties.

11.24(10) The presiding officer may render a proposed or final decision imposing appropriate sanctions for violations of this rule including default, a decision against the offending party, censure, or suspension or revocation of the privilege to practice before the department. Violation of ex parte communication prohibitions by department personnel will be reported to (agency to designate person to whom violations should be reported) for possible sanctions including censure, suspension, dismissal, or other disciplinary action.

282—11.25(17A,256) Recording costs. Upon request, the board will provide a copy of the whole or any portion of the record at cost. The cost of preparing a copy of the record or of transcribing the hearing record will be paid by the requesting party.

Parties who request that a hearing be recorded by certified shorthand reporters rather than by electronic means will bear the cost of that recordation unless otherwise provided by law.

282—11.26(17A,256) Interlocutory appeals. Upon written request of a party or on its own motion, the board may review an interlocutory order of the presiding officer. In determining whether to do so, the board will weigh the extent to which its granting the interlocutory appeal would expedite final resolution of the case and the extent to which review of that interlocutory order by the board at the time it reviews the proposed decision of the presiding officer would provide an adequate remedy. Any request for interlocutory review must be filed within 14 days of issuance of the challenged order but no later than the time for compliance with the order or the date of hearing, whichever is first.

282—11.27(17A,256) Final decision.

11.27(1) When the board presides over the reception of evidence at the hearing, its decision is a final decision.

11.27(2) When the board does not preside at the reception of evidence, the presiding officer will make a proposed decision. The proposed decision becomes the final decision of the board without further proceedings unless there is an appeal to, or review on motion of, the board within the time provided in rule 282—11.28(17A,256).

282—11.28(17A,256) Appeals and review.

11.28(1) Appeal by party. Any adversely affected party may appeal a proposed decision to the board within 30 days after issuance of the proposed decision.

11.28(2) Review. The board may initiate review of a proposed decision on its own motion at any time within 30 days following the issuance of such a decision.

11.28(3) Notice of appeal. An appeal of a proposed decision is initiated by filing a timely notice of appeal with the board. The notice of appeal must be signed by the appealing party or a representative of that party and contain a certificate of service. The notice will specify:

a.The parties initiating the appeal;

b.The proposed decision or order appealed from;

c.The specific findings or conclusions to which exception is taken and any other exceptions to the decision or order;

d.The relief sought;

e.The grounds for relief.

11.28(4) Requests to present additional evidence. A party may request the taking of additional evidence only by establishing that the evidence is material, that good cause existed for the failure to present the evidence at the hearing, and that the party has not waived the right to present the evidence. A written request to present additional evidence must be filed with the notice of appeal or, by a nonappealing party, within 14 days of service of the notice of appeal. The board may remand a case to the presiding officer for further hearing or may itself preside at the taking of additional evidence.

11.28(5) Scheduling. The board will issue a schedule for consideration of the appeal.

11.28(6) Briefs and arguments. Unless otherwise ordered, within 20 days of the notice of appeal or order for review, each appealing party may file exceptions and briefs. Within 20 days thereafter, any party may file a responsive brief. Briefs will cite any applicable legal authority and specify relevant portions of the record in that proceeding. Written requests to present oral argument will be filed with the briefs.

The board may resolve the appeal on the briefs or provide an opportunity for oral argument. The board may shorten or extend the briefing period as appropriate.

282—11.29(17A,256) Applications for rehearing.

11.29(1) By whom filed. Any party to a contested case proceeding may file an application for rehearing from a final order.

11.29(2) Content of application. The application for rehearing will state on whose behalf it is filed, the specific grounds for rehearing, and the relief sought. In addition, the application will state whether the applicant desires reconsideration of all or part of the board decision on the existing record and whether, on the basis of the grounds enumerated in subrule 11.28(4), the applicant requests an opportunity to submit additional evidence.

11.29(3) Time of filing. The application will be filed with the board within 20 days after issuance of the final decision.

11.29(4) Notice to other parties. A copy of the application will be timely mailed by the applicant to all parties of record not joining therein. If the application does not contain a certificate of service, the board will serve copies on all parties.

11.29(5) Disposition. Any application for a rehearing will be deemed denied unless the board grants the application within 20 days after its filing.

282—11.30(17A,256) Stays of board actions.

11.30(1) When available.

a.Any party to a contested case proceeding may petition the board for a stay of an order issued in that proceeding or for other temporary remedies, pending review by the board. The petition will be filed with the notice of appeal and will state the reasons justifying a stay or other temporary remedy. The executive director may rule on the stay or authorize the presiding officer to do so.

b.Any party to a contested case proceeding may petition the board for a stay or other temporary remedies pending judicial review of all or part of that proceeding. The petition will state the reasons justifying a stay or other temporary remedy.

11.30(2) When granted. In determining whether to grant a stay, the executive director or presiding officer will consider the factors listed in Iowa Code section 17A.19(5).

11.30(3) Vacation. A stay may be vacated by the issuing authority upon application of the board or any other party.

282—11.31(17A,256) No factual dispute contested cases. If the parties agree that no dispute of material fact exists as to a matter that would be a contested case if such a dispute of fact existed, the parties may present all relevant admissible evidence either by stipulation or otherwise as agreed by the parties, without necessity for the production of evidence at an evidentiary hearing. If such agreement is reached, a jointly submitted schedule detailing the method and timetable for submission of the record, briefs and oral argument should be submitted to the presiding officer for approval as soon as practicable. If the parties cannot agree, any party may file and serve a motion for summary judgment pursuant to the rules governing such motions.

282—11.32(17A,256) Emergency adjudicative proceedings.

11.32(1) Necessary emergency action. To the extent necessary to prevent or avoid immediate danger to the public health, safety, or welfare, and consistent with the Constitution and other provisions of law, the board may issue a written order in compliance with Iowa Code section 17A.18 to suspend a license in whole or in part, order the cessation of any continuing activity, order affirmative action, or take other action within the jurisdiction of the board by emergency adjudicative order. Before issuing an emergency adjudicative order, the board will consider factors including, but not limited to, the following:

a.Whether there has been a sufficient factual investigation to ensure that the board is proceeding on the basis of reliable information;

b.Whether the specific circumstances that pose immediate danger to the public health, safety or welfare have been identified and determined to be continuing;

c.Whether the person required to comply with the emergency adjudicative order may continue to engage in other activities without posing immediate danger to the public health, safety or welfare;

d.Whether imposition of monitoring requirements or other interim safeguards would be sufficient to protect the public health, safety or welfare; and

e.Whether the specific action contemplated by the board is necessary to avoid the immediate danger.

11.32(2) Issuance of order.

a.An emergency adjudicative order will contain findings of fact, conclusions of law, and policy reasons to justify the determination of an immediate danger in the board’s decision to take immediate action.

b.The written emergency adjudicative order will be immediately delivered to persons who are required to comply with the order by utilizing one or more of the following procedures:

(1)Personal delivery;

(2)Certified mail, return receipt requested, to the last address on file with the board;

(3)Certified mail to the last address on file with the board;

(4)First-class mail to the last address on file with the board; or

(5)Fax. Fax may be used as the sole method of delivery if the person required to comply with the order has filed a written request that board orders be sent by fax and has provided a fax number for that purpose.

c.To the degree practicable, the board will select the procedure for providing written notice that best ensures prompt, reliable delivery.

11.32(3) Oral notice. Unless the written emergency adjudicative order is provided by personal delivery on the same day that the order issues, the board will make reasonable immediate efforts to contact by telephone the persons who are required to comply with the order.

11.32(4) Completion of proceedings. After the issuance of an emergency adjudicative order, the board will proceed as quickly as feasible to complete any proceedings that would be required if the matter did not involve an immediate danger.

Issuance of a written emergency adjudicative order will include notification of the date on which board proceedings are scheduled for completion. After issuance of an emergency adjudicative order, continuance of further board proceedings to a later date will be granted only in compelling circumstances upon application in writing.

282—11.33(256) Methods of discipline. The board has the authority to impose the following disciplinary sanctions:

1.Revoke a practitioner’s license, certificate or authorization.

2.Suspend a practitioner’s license, certificate or authorization until further order of the board or for a specific period.

3.Prohibit permanently, until further order of the board, or for a specific period, a practitioner from engaging in specified practices, methods, or acts.

4.Probation.

5.Require additional education or training.

6.Order a physical or mental evaluation, or order alcohol and drug screening within a time specified by the board.

7.Issue a public letter of reprimand.

8.Order any other resolution appropriate to the circumstances of the case.

9.Impose fees as provided in Iowa Code section 256.146(22).

282—11.34(256) Reinstatement. Any person whose license, certificate or authorization to practice has been suspended may apply to the board for reinstatement in accordance with the terms and conditions of the order of the suspension.

11.34(1) All proceedings for reinstatement will be initiated by the respondent, who will file with the board an application for reinstatement. Such application will be docketed in the original case in which the license, certificate or authorization was suspended. All proceedings upon the application for reinstatement will be subject to the same rules of procedure as other cases before the board.

11.34(2) An application for reinstatement will allege facts that, if established, will be sufficient to enable the board to determine that the basis for the suspension of the respondent’s license, certificate or authorization no longer exists and that it will be in the public interest for the license, certificate or authorization to be reinstated. The burden of proof to establish such facts will be on the respondent.

11.34(3) An order denying or granting reinstatement will be based upon a decision that incorporates findings of fact and conclusions of law. The board may grant reinstatement with or without conditions.

282—11.35(256) Application denial and appeal. The executive director is authorized by Iowa Code section 256.151 to grant or deny applications for licensure. If the executive director denies an application for a license, certificate, or authorization, the executive director will send to the applicant by regular first-class mail written notice identifying the factual and legal basis for denying the application.

11.35(1) Mandatory grounds for license denial. The executive director will deny an application based on the grounds set forth in Iowa Code section 256.146(13).

11.35(2) Conviction of a crime and founded child abuse.

a.Disqualifying criminal convictions. The board shall deny an application for licensure pursuant to Iowa Code section 256.146(13), regardless of whether the judgment of conviction or sentence was deferred.

b.Other criminal convictions and founded child abuse. When determining whether a person should be denied licensure based on the conviction of any other crime, including a felony, or a founded report of child abuse, the executive director and the board will consider the following:

(1)The nature and seriousness of the crime or founded abuse in relation to the position sought;

(2)The time elapsed since the crime or founded abuse was committed;

(3)The degree of rehabilitation that has taken place since the crime or founded abuse was committed;

(4)The likelihood that the person will commit the same crime or abuse again;

(5)The number of criminal convictions or founded abuses committed; and

(6)Such additional factors as may in a particular case demonstrate mitigating circumstances or heightened risk to public safety.

11.35(3) Speech and intellectual freedom protections. The board may deny a license to or revoke the license of a person upon the board’s finding by a preponderance of evidence that the person knowingly and intentionally discriminated against a student in violation of Iowa Code section 261H.2(3) or 279.73.

11.35(4) Fraudulent applications. An application will be considered fraudulent pursuant to Iowa Code section 256.146(13)“b”(2) if it contains any false representation of a material fact or any omission of a material fact that should have been disclosed at the time of application for licensure or is submitted with a false or forged diploma, certificate, affidavit, identification, or other document material to the applicant’s qualification for licensure or material to any of the grounds for denial set forth in Iowa Code section 256.146(13).

11.35(5) Appeal procedure.

a.An applicant who is aggrieved by the denial of an application for licensure and who desires to challenge the decision of the executive director must appeal the decision and request a hearing before the board within 30 calendar days of the date the notice of license denial is mailed. An appeal and request for hearing must be in writing and is deemed made on the date of the United States Postal Service nonmetered postmark or the date of personal service to the board office. The request for hearing will specify the factual or legal errors the applicant contends were made by the executive director, must identify any factual disputes upon which the applicant desires an evidentiary hearing, and may provide additional written information or documents in support of licensure. If a request for hearing is timely made, the executive director will promptly issue a notice of contested case hearing on the grounds asserted by the applicant.

b.The board, in its discretion, may act as presiding officer at the contested case hearing, may hold the hearing before a panel of three board members, or may request that an administrative law judge act as presiding officer. The applicant may request that an administrative law judge act as presiding officer and render a proposed decision pursuant to rule 282—11.8(17A,256). A proposed decision by a panel of board members or an administrative law judge is subject to appeal or review by the board pursuant to rule 282—11.28(17A,256).

c.Hearings concerning licensure denial will be conducted according to the contested case procedural rules in this chapter. Evidence supporting the denial of the license may be presented by an assistant attorney general. While each party will have the burden of establishing the affirmative of matters asserted, the applicant will have the ultimate burden of persuasion as to the applicant’s qualification for licensure.

d.On appeal, the board may grant or deny the application for licensure. If the application for licensure is denied, the board will state the reason or reasons for the denial and may state conditions under which the application could be granted, if applicable.

11.35(6) Judicial review. Judicial review of a final order of the board denying licensure may be sought in accordance with the provisions of Iowa Code section 17A.19, which are applicable to judicial review of an agency’s final decision in a contested case. In order to exhaust administrative remedies, an applicant aggrieved by the executive director’s denial of an application for licensure must timely appeal the adverse decision to the board.

282—11.36(256) Denial of renewal application. If the executive director denies an application to renew a license, certificate or authorization, a notice of hearing will be issued to commence a contested case proceeding. The executive director may deny a renewal application on the same grounds as those that apply to an application for licensure described in subrules 11.35(1) through 11.35(4).

11.36(1) Hearing procedure. Hearings on denial of an application to renew a license will be conducted according to the contested case procedural rules in this chapter. Evidence supporting the denial of the license may be presented by an assistant attorney general.

11.36(2) Judicial review. Judicial review of a final order of the board denying renewal of licensure may be sought in accordance with the provisions of Iowa Code section 17A.19, which are applicable to judicial review of an agency’s final decision in a contested case.

11.36(3) Impact of denial of renewal application. Pursuant to Iowa Code section 17A.18(2), if the licensee has made timely and sufficient application for renewal, an existing license will not expire until the last day for seeking judicial review of the board’s final order denying the application or a later date fixed by order of the board or reviewing court.

11.36(4) Timeliness of renewal application. Within the meaning of Iowa Code section 17A.18(2), a timely and sufficient renewal application will be:

a.Received by the board on or before the date the license is set to expire or lapse;

b.Signed by the licensee and certified as accurate if submitted electronically;

c.Fully completed; and

d.Accompanied by the proper fee. The fee will be deemed improper if the amount is incorrect, the fee was not included with the application, or the licensee’s check is unsigned or returned for insufficient funds.

282—11.37(256) Required reports. Reports are required to be made pursuant to Iowa Code sections 256.146, 256.160, and 279.73.

282—11.38(256) Denial of application during a pending professional practices case. The executive director may deny an application for a license, authorization, certificate, or statement of recognition if the applicant is currently under investigation and probable cause has been determined by the board.

These rules are intended to implement Iowa Code chapters 17A and 256.