ARC 8953C

ARC 8953C

Proposing rulemaking related to model rules
and providing an opportunity for public comment

A Regulatory Analysis for this rulemaking was published in the Iowa Administrative Bulletin on December 25, 2024. A public hearing was held on the following date(s):

●January 15, 2025

ITEM 1.Rescind 481—Chapter 506 and adopt the following new chapter in lieu thereof:

CHAPTER 506

MODEL RULES FOR CONTESTED CASES BEFORE
LICENSING BOARDS AND SETTLEMENTS

481—506.1(17A) Scope and applicability. This model chapter provides rules for contested cases and settlements that licensing boards and commissions may adopt for procedural consistency. This chapter is deemed applicable to any licensing board under the administrative authority of the department, excluding the department’s attached units, unless the licensing board has separate rulemaking authority and has adopted rules governing contested cases and settlements.

481—506.2(17A) Definitions. For the purpose of these rules, the following definitions apply:

“Attached units” includes the employment appeal board, office of civil rights, racing and gaming commission, and state public defender’s office as described in Iowa Code chapter 10A.

“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.

“Department” means the department of inspections, appeals, and licensing.

“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.

“Licensing board” or “board” includes any licensing board set forth in Iowa Code section 272C.1(6) that is under the administrative authority of the department pursuant to Iowa Code chapter 10A, with the exception of the director or the department as referenced in Iowa Code section 272C.1(6)“ae” and “af,” and also includes any other licensing board under the administrative authority of the department pursuant to Iowa Code chapter 10A that has expressly adopted this chapter.

“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, including the state of Iowa as represented by the assistant attorney general assigned to prosecute the case on behalf of the public interest, the respondent or applicant, or an intervenor.

“Presiding officer” includes the licensing board, administrative law judge, or panel of not less than three board members who are licensed in the profession as described in Iowa Code section 272C.6(1).

“Probable cause” means a reasonable ground for belief in the existence of facts warranting the specified proceeding.

“Quorum” means a majority of the members of the board unless otherwise defined by the board’s authorizing statute.

481—506.3(17A) Time requirements.

506.3(1) Time will be computed as provided in Iowa Code section 4.1(34).

506.3(2) For good cause, the presiding officer may extend or shorten the time to take any action, except as precluded by statute or by rule. Except for good cause stated in the record, before extending or shortening the time to take any action, the presiding officer will afford all parties an opportunity to be heard or to file written arguments.

481—506.4(17A) Probable cause. If the board finds there is probable cause for taking disciplinary action against a licensee following investigation, the board may order that a contested case hearing be commenced by the filing and service of a statement of charges and notice of hearing.

481—506.5(17A) Statement of charges and notice of hearing.

506.5(1) Legal review. Every statement of charges and notice of hearing prepared by the board will be reviewed by the office of the attorney general prior to filing.

506.5(2) Service. Service of the statement of charges and notice of hearing constitutes the commencement of the contested case proceeding. Service may be executed by:

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

b.Restricted certified mail, return receipt requested; or

c.Signed acknowledgment accepting service; or

d.Publication, as provided in the Iowa Rules of Civil Procedure, when service cannot be accomplished using the above methods.

506.5(3) Contents. The statement of charges and notice of hearing will contain the following information:

a.A statement of probable cause to file the statement of charges;

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

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

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

e.A short and plain statement of the matters asserted containing sufficient detail to give the respondent fair notice of the allegations so that the respondent may adequately respond to the charges, and to give the public notice of the matters at issue;

f.Identification of all parties including the name, address and telephone number of the assistant attorney general designated as prosecutor for the state and the parties’ counsel, if known;

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

h.Reference to the procedural rules governing settlement;

i.Identification of the presiding officer;

j.Notification of the time period in which a party may request, when applicable, and pursuant to Iowa Code section 17A.11 that the presiding officer be an administrative law judge;

k.Notification of the time period in which the respondent may file an answer; and

l.Notification of the respondent’s right to request a closed hearing, if applicable.

506.5(4) Public record. A statement of charges and notice of hearing is a public record and open for inspection under Iowa Code chapter 22. Notwithstanding, investigative information included in the statement of charges and notice of hearing as set forth in subparagraph 506.5(3)“e” is confidential pursuant to Iowa Code section 272C.6(4)“a” and should not be included in the public record. Such confidential information should be redacted from the public record or set forth in a separate document that is not included with the public record.

481—506.6(17A,272C) Legal representation. Following the filing of the statement of charges and notice of hearing, the office of the attorney general will be responsible for the legal representation of the public interest in all proceedings before the board. The assistant attorney general assigned to prosecute a contested case before the board will not represent the board in that case but will represent the public interest. All other parties to a proceeding before the board are entitled to legal representation at their own expense.

481—506.7(17A,272C) Presiding officer in a disciplinary contested case. The presiding officer in a disciplinary contested case may be the board, an administrative law judge delegated in accordance with rule 481—506.8(17A,272C), or a panel of the board as described in Iowa Code section 272C.6(1). The board may also request that an administrative law judge assist the board with initial rulings on prehearing matters. Decisions of the administrative law judge serving in this capacity are subject to the interlocutory appeal provisions of rule 481—506.24(17A). An administrative law judge may also assist and advise the board at the contested case hearing.

481—506.8(17A,272C) Delegation by board to administrative law judge.

506.8(1) Delegation. Upon majority vote of the board, a contested case, whether disciplinary or nondisciplinary, may be delegated to an administrative law judge. The board may delegate the entirety of the case or parts of the case to the administrative law judge. The delegation may occur at the time of filing the notice of hearing and statement of charges and should occur as early as practicable.

506.8(2) Proposed decisions. Decisions issued by an administrative law judge are proposed decisions in accordance with Iowa Code section 17A.15. A proposed decision issued by an administrative law judge becomes a final decision if not timely appealed or reviewed in accordance with this rule.

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

b.Review. The board may initiate review of the proposed decision on its own motion at any time within 30 days following the issuance of the proposed decision.

c.Exhaustion. A party must timely appeal a proposed decision to the board in order to adequately exhaust administrative remedies.

d.Notice of appeal. An appeal of a proposed decision is initiated by the filing of a timely notice of appeal with the board. The notice of appeal must be signed by the appealing party or an attorney for that party and contain a certificate of service. The notice shall specify:

(1)The party initiating the appeal;

(2)The proposed decision or order being appealed;

(3)The specific findings or conclusions to which exception is taken and any other exceptions to the decision or order;

(4)The relief sought; and

(5)The grounds for relief.

506.8(3) 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.

506.8(4) Scheduling. The board will issue a schedule for consideration of the appeal.

a.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 shall cite any applicable legal authority and specify relevant portions of the record in that proceeding. Written requests to present oral argument shall 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.

b.Record. The record on appeal or review shall be the entire record made before the administrative law judge.

481—506.9(17A) Presiding officer in a nondisciplinary contested case.

506.9(1) Any party in a nondisciplinary contested case 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.

506.9(2) The board may deny the request only upon a finding that one or more of the following apply:

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

b.An administrative law judge is unavailable to hear the case within a reasonable time.

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

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

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

f.The request was not timely filed.

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

506.9(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 506.9(4), the parties shall be notified at least ten days prior to hearing if a qualified administrative law judge will not be available.

506.9(4) Except as provided otherwise by another provision of law, all rulings by an administrative law judge acting as presiding officer in a nondisciplinary contested case are subject to appeal to the board. A party must seek appeal to the board in order to exhaust adequate administrative remedies. Such appeals must be filed within ten days of the date of the issuance of the challenged ruling, but no later than the time for compliance with the order or the date of hearing, whichever is first.

506.9(5) Unless otherwise provided by law, when reviewing a proposed decision of an administrative law judge in a nondisciplinary contested case upon appeal, the board will have the powers of and will comply with the provisions of subrule 506.8(2).

481—506.10(17A) Disqualification.

506.10(1) A presiding officer or other person 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 is:

(1)A party to the case, or an officer, director or trustee of a party;

(2)A lawyer in the case;

(3)Known to have an interest that could be substantially affected by the outcome of the case; or

(4)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.

506.10(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:

a.General direction and supervision of assigned investigators;

b.Unsolicited receipt of information that is relayed to assigned investigators;

c.Review of another person’s investigative work product in the course of determining whether there is probable cause to initiate a proceeding; or

d.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. A person voluntarily appearing before the board or a committee of the board waives any objection to a board member or board staff both participating in the appearance and later participating as a decision maker or aid to the decision maker in a contested case.

506.10(3) 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(3), rule 481—506.10(17A), or subrule 506.22(9).

506.10(4) In a situation where a presiding officer or other person 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, including a statement of the reasons for the determination that withdrawal is unnecessary.

506.10(5) If a party asserts disqualification on any appropriate ground, including those listed in subrule 506.10(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. The board will determine the matter as part of the record in the case.

506.10(6) If, during the course of the hearing, a party first becomes aware of evidence of bias or other grounds for disqualification, the party may move for disqualification but will need to establish the grounds by the introduction of evidence into the record.

481—506.11(17A) Consolidation—severance.

506.11(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.

506.11(2) Severance. The presiding officer may, for good cause shown, order any contested case proceedings or portions thereof severed.

481—506.12(17A) Pleadings.

506.12(1) Pleadings. Pleadings may be required by rule, by the statement of charges and notice of hearing, or by order of the presiding officer.

506.12(2) Answer or appearance. An answer or appearance, if required, shall be filed by respondent within 20 days of service of the statement of charges and notice of hearing.

a.An answer or appearance 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. If the attorney is not licensed to practice law in Iowa, the attorney must fully comply with Iowa Court Rule 31.14.

b.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.

506.12(3) Amendments. Any notice of hearing or statement of charges may be amended before a responsive pleading has been filed. Otherwise, a party may amend a pleading only with the consent of the other parties or at the discretion of the presiding officer, who may impose terms or grant a continuance.

481—506.13(17A) Service and filing.

506.13(1) Service—when required. Except where otherwise provided by law, every document filed in a contested case proceeding shall be served upon each of the parties of record to the proceeding, including the assistant attorney general designated as prosecutor for the state, simultaneously with its filing. Except for the original statement of charges and 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.

506.13(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.

506.13(3) Filing—when required. After the statement of charges and notice of hearing, all pleadings and motions in a contested case proceeding shall be filed with the board. All documents that are required to be filed with the board shall be appropriately served upon all parties.

506.13(4) Filing—when made. Except where otherwise provided by law, a document is deemed filed at the time it is delivered to the board office at 6200 Park Avenue, Suite 100, Des Moines, Iowa 50321; delivered to an established courier service for immediate delivery to that office; mailed by first-class mail or state interoffice mail to that office, so long as there is proof of mailing; or filed electronically through AEDMS in accordance with 481—Chapter 16.

506.13(5) Proof of mailing. Proof of mailing includes:

a.A legible United States Postal Service postmark on the envelope, or

b.A certificate of service, or

c.A notarized affidavit, or

d.A certification in substantially the following form:

481—506.14(17A) Discovery.

506.14(1) Discovery procedures applicable in civil actions are applicable in contested cases, with the exception of the mandatory disclosure and discovery conference requirements in Iowa Rules of Civil Procedure 1.500 and 1.507. Unless lengthened or shortened by these rules, by order of the presiding officer, or by agreement of the parties, time periods for compliance with discovery will be as provided in the Iowa Rules of Civil Procedure. Discovery will be served on all parties to the contested case proceeding but not be filed with the board.

506.14(2) Any motion 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 will be ruled upon by the presiding officer. Opposing parties will be afforded the opportunity to respond within ten days of the filing of the motion unless the time is shortened as provided by rule. The presiding officer may rule on the basis of the written motion and any response, or may order argument on the motion.

506.14(3) Evidence obtained in discovery may be used in the contested case proceeding if that evidence would otherwise be admissible in that proceeding.

506.14(4) The board’s investigative file is available to the respondent or applicant upon request only after the commencement of a contested case and prior to the resolution of the contested case. A licensee who elects to enter into a combined statement of charges and settlement agreement is not entitled to request the investigative file. In accordance with Iowa Code section 272C.6(4), information contained within an investigative file is confidential and may only be used in connection with the disciplinary proceedings.

481—506.15(17A,272C) Subpoenas in a contested case.

506.15(1) Subpoenas issued in a contested case may compel the attendance of witnesses at depositions or hearings and may compel the production of books, papers, records, and other real evidence. A command to produce evidence or to permit inspection may be joined with a command to appear at a deposition or hearing, or may be issued separately. Subpoenas shall be issued by the board administrator or designee upon written request. A request for a subpoena of mental health records must confirm the conditions described in 481—subrule 503.5(1) prior to the issuance of the subpoena.

506.15(2) A request for a subpoena shall include the following information, as applicable, unless the subpoena is requested to compel testimony or documents for rebuttal or impeachment purposes:

a.The name, address and telephone number of the person requesting the subpoena;

b.The name and address of the person to whom the subpoena shall be directed;

c.The date, time, and location at which the person shall be commanded to attend and give testimony;

d.Whether the testimony is requested in connection with a deposition or hearing;

e.A description of the books, papers, records or other real evidence requested;

f.The date, time and location for production, or inspection and copying; and

g.In the case of a subpoena request for mental health records, confirmation that the conditions described in 481—subrule 503.5(1) have been satisfied.

506.15(3) Each subpoena will contain, as applicable:

a.The caption of the case;

b.The name, address and telephone number of the person who requested the subpoena;

c.The name and address of the person to whom the subpoena is directed;

d.The date, time, and location at which the person is commanded to appear;

e.Whether the testimony is commanded in connection with a deposition or hearing;

f.A description of the books, papers, records or other real evidence the person is commanded to produce;

g.The date, time and location for production, or inspection and copying;

h.The time within which a motion to quash or modify the subpoena must be filed;

i.The signature, address and telephone number of the board administrator or designee;

j.The date of issuance; and

k.A return of service.

506.15(4) Unless a subpoena is requested to compel testimony or documents for rebuttal or impeachment purposes, the board administrator or designee will email the subpoena to the requesting party, with a copy to the opposing party. The person who requested the subpoena is responsible for serving the subpoena upon the subject of the subpoena.

506.15(5) Any person who is aggrieved or adversely affected by compliance with the subpoena, or any party to the contested case who desires to challenge the subpoena, must file with the board a motion to quash or modify the subpoena describing the legal reasons why the subpoena should be quashed or modified before the earlier of the date specified for compliance or 14 days after the subpoena is served. The motion may be accompanied by legal briefs or factual affidavits. However, if a subpoena solely requests the production of books, papers, records, or other real evidence and does not also seek to compel testimony, the person who is aggrieved or adversely affected by compliance with the subpoena may alternatively serve written objection on the requesting party before the earlier of the date specified for compliance or 14 days after the subpoena is served. The serving party may then file a motion asking the presiding officer to issue an order compelling production.

506.15(6) Upon receipt of a timely motion to quash or modify a subpoena, the board may request an administrative law judge to issue a decision, or the board may issue a decision. Oral argument may be scheduled at the discretion of the board or the administrative law judge. The administrative law judge or the board may quash or modify the subpoena, deny the motion, or issue an appropriate protective order.

506.15(7) A person aggrieved by a ruling of an administrative law judge who desires to challenge that ruling must appeal the ruling to the board by serving on the board administrator, either in person, by email, or by certified mail, a notice of appeal within ten days after service of the decision of the administrative law judge.

506.15(8) If the person contesting the subpoena is not a party to the contested case, the board’s decision is final for purposes of judicial review. If the person contesting the subpoena is a party to the contested case, the board’s decision is not final for purposes of judicial review until there is a final decision in the contested case.

481—506.16(17A) Motions.

506.16(1) Prehearing motions must be in writing, state the grounds for relief, and state the relief sought.

506.16(2) Any party may file a written response to a motion within ten days after the motion is served unless the time period is extended or shortened by the presiding officer. The presiding officer may consider a failure to respond within the required time period in ruling on a motion.

506.16(3) The presiding officer may schedule oral argument on any motion.

506.16(4) Motions pertaining to the hearing 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.

506.16(5) Dispositive motions, such as motions for summary judgment or motions to dismiss, must be filed and served on all parties at least 30 days prior to the scheduled hearing date unless otherwise ordered or permitted by the presiding officer. Any party may file a written response to a dispositive motion within ten days after the motion is served unless the time for response is otherwise lengthened or shortened by the presiding officer.

481—506.17(17A) Prehearing conferences.

506.17(1) A prehearing conference may be ordered by the presiding officer, and any party may request a prehearing conference. Prehearing conferences will be conducted by an administrative law judge. A written request for prehearing conference or an order for prehearing conference on the board administrator’s own motion will be filed prior to the contested case hearing, but no later than 20 days prior to the hearing date. Written notice of the prehearing conference will be given by the board administrator to all parties. For good cause the board administrator may permit variances from this rule.

506.17(2) The parties at a prehearing conference shall be prepared to discuss the following subjects, and the administrative law judge may issue appropriate orders concerning:

a.The possibility of settlement.

b.The entry of a scheduling order to include deadlines for completion of discovery.

c.Stipulations of law or fact.

d.Stipulations on the admissibility of exhibits.

e.Submission of expert and other witness lists. Witness lists may be amended subsequent to the prehearing conference within the time limits established by the administrative law judge at the prehearing conference. Any such amendments must be served on all parties. Witnesses not listed on the final witness list may be excluded from testifying unless there was good cause for the failure to include their names.

f.Submission of exhibit lists. Exhibit lists may be amended subsequent to the prehearing conference within the time limits established by the administrative law judge at the prehearing conference. Exhibits other than rebuttal exhibits that are not listed on the final exhibit list may be excluded from admission into evidence unless there was good cause for the failure to include them.

g.Stipulations of any provision of law.

h.Identification of matters that the parties intend to request be officially noticed.

i.Consideration of any additional matters that will expedite the hearing.

506.17(3) Prehearing conferences may be conducted by telephone unless otherwise ordered.

481—506.18(17A) Continuances.

506.18(1) Unless otherwise provided, an application for continuance shall be filed with the board at least seven days before the date scheduled for hearing. If the application for continuance is not contested, the board administrator or designee may issue an order or delegate the matter to an administrative law judge. If the application for continuance is contested, the matter will be heard by the board or may be delegated by the board to an administrative law judge. No continuance shall be granted within seven days of the date of hearing except for extraordinary, extenuating or emergency circumstances.

506.18(2) A written application for a continuance shall:

a.Be made at the earliest possible time and no less than seven working days before the hearing, except in cases of unanticipated emergencies;

b.State the specific reasons for the request; and

c.Be signed by the requesting party or the party’s representative.

506.18(3) An oral application for continuance may be made if the board or the presiding officer waives the requirement for a written motion. No application for continuance shall be made or granted without notice to all parties, except in an emergency where notice is not feasible.

506.18(4) The presiding officer may require documentation of any grounds for continuance. In determining whether to grant a continuance, the presiding officer may consider:

a.Prior continuances;

b.The interests of all parties;

c.The public interest;

d.The likelihood of informal settlement;

e.The existence of an emergency;

f.Any objection;

g.Any applicable time requirements;

h.The existence of a conflict in the schedules of counsel, parties, or witnesses;

i.The timeliness of the request; and

j.Other relevant factors.

481—506.19(17A,272C) Hearing procedures.

506.19(1) Hearings are conducted before a quorum of the board or an administrative law judge. With respect to contested cases before the board of medicine, if an insufficient number of board members are available to hear a contested case, the executive director, or designee, may request alternate members as defined in rule 653—1.1(17A,147) and Iowa Code sections 148.2A and 148.7(4) to serve on the hearing panel. A hearing panel must include at least six members, at least half of whom must be current board members and at least half of whom must be licensed to practice medicine under Iowa Code chapter 148.

506.19(2) The presiding officer has the authority to administer oaths, to admit or exclude testimony or other evidence, and to rule on all motions and objections. The board may request that an administrative law judge perform any of these functions and may be assisted and advised by an administrative law judge.

506.19(3) All objections will be timely made and stated on the record.

506.19(4) Parties have the right to participate or to be represented in all hearings or prehearing conferences related to their case.

506.19(5) 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. Subject to terms and conditions prescribed by the presiding officer, parties may present the testimony of witnesses by affidavit, by written or video deposition, in person, by telephone, or by videoconference.

506.19(6) The presiding officer maintains the decorum of the hearing and may refuse to admit or may expel anyone whose conduct is disorderly.

506.19(7) Witnesses may be sequestered during the hearing.

506.19(8) The presiding officer has the authority to grant immunity from disciplinary action to a witness as provided by Iowa Code section 272C.6(3).

506.19(9) The presiding officer conducts the hearing in the following manner:

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

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

c.The parties present their cases in the sequence determined by the presiding officer;

d.Each witness is sworn or affirmed by the presiding officer or the court reporter and 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, the parties may be given the opportunity to present final arguments.

506.19(10) The board members and the administrative law judge have the right to question a witness. Examination of witnesses is subject to properly raised objections.

506.19(11) The hearing will be open to the public unless the licensee requests that the hearing be closed. At the request of either party, or on the board’s own motion, the presiding officer may issue a protective order to protect documents that are privileged or confidential by law.

506.19(12) Contested case hearings shall be recorded by electronic means or by a certified shorthand reporter. A party may request that a hearing be recorded by a certified shorthand reporter instead of through electronic means by filing a request with the board at least 14 days in advance of the hearing. Parties who request that a hearing be recorded by a certified shorthand reporter rather than by electronic means shall bear the cost of the certified shorthand reporter. Upon request, the board shall provide a copy of the whole or any portion of the record costs. The cost of preparing a copy of the record or of transcribing the hearing record shall be paid by the requesting party. If the request for the hearing record is made as a result of a petition for judicial review, the party who filed the petition shall be considered the requesting party.

481—506.20(17A) Evidence.

506.20(1) The presiding officer rules on admissibility of evidence and may, where appropriate, take official notice of facts in accordance with all applicable requirements of law.

506.20(2) Stipulation of facts is encouraged. The presiding officer may make a decision based on stipulated facts.

506.20(3) Evidence in the proceeding shall be confined to the issues as to which the parties received notice prior to the hearing unless a party waives the party’s right to such notice or the presiding officer determines that good cause justifies expansion of the issues. If the presiding officer decides to admit evidence on issues outside the scope of the notice over the objection of a party who did not have actual notice of those issues, that party, upon timely request, will receive a continuance sufficient to amend pleadings and to prepare on the additional issue.

506.20(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.

506.20(5) Any party may object to specific evidence or may request limits on the scope of any examination or cross-examination. Such an objection shall 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 shall 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.

506.20(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 shall 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 shall be marked as part of an offer of proof and inserted in the record.

506.20(7) Irrelevant, immaterial and unduly repetitious evidence should be excluded. A finding will be based upon the kind of evidence upon which reasonably prudent persons are accustomed to rely for the conduct of their serious affairs and may be based on hearsay or other types of evidence that may or would be inadmissible in a jury trial.

481—506.21(17A) Default.

506.21(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.

506.21(2) Where appropriate and not contrary to law, any party may move for default against a party who has failed to appear after proper service.

506.21(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. 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.

506.21(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.

506.21(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.

506.21(6) “Good cause” for purposes of this rule shall have the same meaning as “good cause” for setting aside a default judgment under the Iowa Rules of Civil Procedure.

506.21(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 481—506.24(17A).

506.21(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 statement of charges and the contested case will proceed accordingly.

506.21(9) 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 481—506.26(17A).

481—506.22(17A) Ex parte communication.

506.22(1) Unless required for the disposition of ex parte matters specifically authorized by statute, following issuance of the statement of charges and 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. Nothing in this provision is intended to preclude board members from communicating with other board members or members of the board staff, other than those with a personal interest in, or those engaged in personally investigating, 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.

506.22(2) Prohibitions on ex parte communications commence with the issuance of the statement of charges and notice of hearing in a contested case and continue for as long as the case is pending before the board.

506.22(3) Written, oral or other forms of communication are ex parte if made without notice and opportunity for all parties to participate.

506.22(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 481—506.6(17A) 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.

506.22(5) Persons who jointly act as presiding officer in a pending contested case may communicate with each other without notice or opportunity for parties to participate.

506.22(6) The board administrator 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 final decision under any provision of law and they comply with this rule.

506.22(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.

506.22(8) 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.

a.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.

b.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.

506.22(9) Promptly after being assigned to serve as presiding officer at any stage in a contested case proceeding, a presiding officer shall 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.

506.22(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, suspension or revocation of the privilege to practice before the agency. Violation of ex parte communication prohibitions by board personnel will be reported to the board and its board administrator for possible sanctions, including censure, suspension, dismissal, or other disciplinary action.

481—506.23(17A) 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 is paid by the requesting party.

481—506.24(17A) Interlocutory appeals. Upon written request of a party or on its own motion, the board may review an interlocutory order of the board administrator or an administrative law judge. 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. In determining whether to review an interlocutory order, the board will consider:

506.24(1) The extent to which granting the interlocutory appeal would expedite final resolution of the case; and

506.24(2) 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.

481—506.25(17A) Decisions.

506.25(1) Final decisions.

a.When a quorum of the board presides over the reception of the evidence at the hearing, its decision is a final decision. A final decision of the board is an open record. Final decisions shall be served on the parties in accordance with rule 481—506.13(17A).

b.A decision of a hearing panel of the board of medicine containing alternate members is considered a final decision of the board in accordance with Iowa Code section 148.2A.

506.25(2) Proposed decisions.

a.Panel of specialists for board of medicine. When a panel of three specialists for the board of medicine presides over the hearing, the panel shall issue a proposed decision that includes findings of fact but does not include conclusions of law. A proposed decision of a panel of specialists, together with a transcript of the proceedings and the exhibits presented, shall be reviewed by the board within 30 days of the date of the proposed decision was issued.

b.Panel of board members or administrative law judge. When a panel of three or more board members or an administrative law judge presides over the hearing, the panel or administrative law judge shall issue a proposed decision that includes proposed findings of fact, conclusions of law, and an order. A proposed decision shall be reviewed by the board within 30 days of the date of the proposed decision was issued. A proposed decision becomes a final decision without further proceedings unless appealed in accordance with paragraph 506.25(2)“c.”

c.Appeal of proposed decisions. A proposed decision pursuant to paragraph 506.25(2)“a” or “b” may be appealed to the full board by either party by serving on the board administrator, either in person, by email or by certified mail, a written notice of appeal within three days after service of the proposed decision on the appealing party.

(1)Following receipt of a notice of appeal, the board will enter an order establishing a schedule for further proceedings, which may include submission of briefs and oral argument. The parties shall serve their briefs on the board and each party.

(2)Oral argument may be heard by the board and may be waived by the parties. The time granted each party for oral argument is established by the board.

(3)The record on appeal includes the entire record made before the presiding officer. Costs associated with the appeal shall be paid by the appealing party.

d.Confidentiality. At no time prior to the release of the final decision by the board shall a proposed decision be made public or distributed to any person other than the parties.

e.Requests to present additional evidence. A party may request the taking of additional evidence after the issuance of a proposed decision only by establishing that:

(1)The evidence is material; and

(2)The evidence arose after the completion of the original hearing; or

(3)Good cause exists for failure to present the evidence at the original hearing; and

(4)The party has not waived the right to present additional 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 hearing panel or administrative law judge for further hearing or may itself preside at the taking of additional evidence.

481—506.26(17A) Applications for rehearing.

506.26(1) Who may file. Any party to a contested case proceeding may file an application for rehearing from a final order. The filing of an application for rehearing is not necessary to exhaust administrative remedies for purposes of judicial review.

506.26(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 shall state whether the applicant desires reconsideration of all or part of the agency decision on the existing record and whether the applicant requests an opportunity to submit additional evidence.

506.26(3) Additional evidence. A request that additional evidence be considered on rehearing is governed by paragraph 506.25(2)“e.”

506.26(4) Filing deadline. The application shall be filed with the board within 20 days after issuance of the final decision.

506.26(5) Notice to other parties. A copy of the application shall be timely mailed by the applicant to all parties of record not joining therein.

506.26(6) Disposition. Any application for a rehearing is deemed denied unless the agency grants the application within 20 days after its filing.

506.26(7) Only remedy. Application for rehearing is the only procedure by which a party may request that the board reconsider a final board decision.

506.26(8) Proceedings. If the board grants an application for rehearing, the board may set the application for oral argument or for hearing if additional evidence will be received. If additional evidence will not be received, the board may issue a ruling without oral argument or hearing. The board may, on the request of a party or on its own motion, order or permit the parties to provide written argument on one or more designated issues. The board may be assisted by an administrative law judge in all proceedings related to an application for rehearing.

481—506.27(17A) Stays of agency actions.

506.27(1) When available. 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 or pending judicial review. The petition shall state the reasons justifying a stay or other temporary remedy. A party must petition the board for a stay pursuant to this rule prior to requesting a stay from the district court in a judicial review proceeding.

506.27(2) When granted. In determining whether to grant a stay, the board will consider the factors listed in Iowa Code section 17A.19(5)“c.” The board will not grant a stay in any case in which the district court would be expressly prohibited by statute from granting a stay.

506.27(3) Vacation. A stay may be vacated by the issuing authority upon application of the board or any other party.

481—506.28(17A) 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.

481—506.29(17A) Emergency adjudicative proceedings.

506.29(1) 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.18A 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.

506.29(2) Factors for consideration. 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.

506.29(3) Issuance of order.

a.An emergency adjudicative order contains 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. The order is a public record.

b.The written emergency adjudicative order will be immediately served upon the person who is 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 agency;

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

(4)Email to the last email on file with the agency; 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 agency 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.

506.29(4) Oral notice. Unless the written emergency adjudicative order is provided by personal delivery on the same day that the order is issued, the board will make reasonable immediate efforts to contact by telephone the person who is required to comply with the order.

506.29(5) 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.

a.Issuance of a written emergency adjudicative order will include notification of the date on which board proceedings are scheduled for hearing.

b.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 unless the person who is required to comply with the order is the party requesting the continuance.

481—506.30(17A) Appeal. Any appeal to district court from a decision in a contested case will be taken within 30 days from the date of issuance of the decision by the board pursuant to Iowa Code section 17A.19.

481—506.31(272C) Public record. The final decision of the board in a contested case is a public record. The board will report final decisions to the appropriate organizations, which may include but are not limited to the National Practitioner Data Bank and any media or other organizations that have filed a request for public information.

481—506.32(272C) Reinstatement.

506.32(1) Any person whose license to practice has been revoked or suspended may apply to the board for reinstatement in accordance with the terms and conditions of the order of revocation or suspension unless the order of revocation provides that the license is permanently revoked.

506.32(2) Unless otherwise provided by law, if the order of revocation or suspension did not establish terms and conditions upon which reinstatement might occur, or if the license was voluntarily surrendered, an initial application for reinstatement may not be made until one year has elapsed from the date of the order or the date of the voluntary surrender.

506.32(3) All proceedings for reinstatement will be initiated by the respondent, who will file with the board an application for reinstatement of the license. Such application will be docketed in the original case in which the license was revoked, suspended, or relinquished. All proceedings upon the application for reinstatement will be subject to the same rules of procedure as other cases before the board.

506.32(4) An application for reinstatement will allege facts that, if established, will be sufficient to enable the board to determine that the basis for the revocation, suspension or voluntary surrender of the respondent’s license no longer exists and that it will be in the public interest for the license to be reinstated. The burden of proof to establish such facts is on the respondent.

506.32(5) An order of reinstatement will be based upon a decision that incorporates findings of facts and conclusions of law. The order will be published as provided for in this chapter.

481—506.33(17A,272C) License denial. An applicant may appeal a preliminary notice of denial of license by filing a written notice of appeal and request for hearing with the board within 30 days of the date that the preliminary notice of denial of license was mailed or emailed by the board. The hearing is a contested case conducted in accordance with this chapter.

481—506.34(272C) Disciplinary hearings—fees and costs.

506.34(1) Definitions. As used in this rule in relation to formal disciplinary action filed by the board against a licensee, the following definitions apply:

“Deposition” means the testimony of a person taken pursuant to subpoena or at the request of the state of Iowa taken in a setting other than a hearing.

“Evaluation fees” means actual costs incurred by the board in a physical, mental, chemical abuse, other impairment-related examination or evaluation or clinical competency evaluation of a licensee when the examination or evaluation is conducted pursuant to an order of the board.

“Expenses” means costs incurred by persons appearing pursuant to a subpoena or at the request of the state of Iowa for purposes of providing testimony on the part of the state of Iowa in a hearing or other official proceeding and includes mileage reimbursement at the rate specified in Iowa Code section 70A.9 or, if commercial air or ground transportation is used, the actual cost of transportation to and from the proceeding. Also included are actual costs incurred for meals and necessary lodging.

“Transcript” means a printed verbatim reproduction of everything said on the record during a hearing or other official proceeding.

“Witness fees” means compensation paid by the board to persons appearing pursuant to subpoena or at the request of the state of Iowa for purposes of providing testimony on the part of the state of Iowa. For the purposes of this rule, compensation is the same as outlined in Iowa Code section 622.69 or 622.72, as applicable.

506.34(2) Disciplinary hearing fee and related hearing costs. As set forth in Iowa Code section 272C.6(6), a board created pursuant to Iowa Code chapter 147, 154A, 155, 169, 542, 542B, 543B, 543D, 544A, or 544B may charge a fee not to exceed $75 for conducting a disciplinary hearing that results in disciplinary action taken against the licensee by the board. The board may also recover from the licensee the costs for transcripts, witness fees and expenses, depositions, and medical examination fees incurred relating to a person licensed under Iowa Code chapter 147, 154A, 155, or 169. An order assessing a fee will be included as part of the board’s final decision and will direct the licensee to deliver payment directly to the board. The allocation of fees and costs collected pursuant to this subrule is in accordance with Iowa Code section 272C.6(6)“b.” The board may assess these costs in the manner it deems most equitable in accordance with the following:

a.Transcript costs. The board may recover the costs for the court reporter and assess the transcript costs against the licensee pursuant to Iowa Code section 272C.6(6), if applicable, or against the requesting party pursuant to Iowa Code section 17A.12(7).

(1)The cost of the transcript includes the transcript of the original contested case hearing before the board, as well as transcripts of any other formal proceedings before the board that occur after the notice of the contested case hearing is filed.

(2)In the event of an appeal to the full board from a proposed decision, the appealing party shall timely request and pay for the transcript necessary for use in the agency appeal process.

b.Witness fees and expenses. The parties in a contested case are responsible for any witness fees and expenses incurred by witnesses appearing at the contested case hearing. In addition, the board may assess the licensee the witness fees and expenses incurred by the witnesses called to testify on behalf of the state of Iowa, provided that the costs are calculated as follows:

(1)The costs for lay witnesses are determined in accordance with Iowa Code section 622.69. For purposes of calculating the mileage expenses allowed under that section, the provisions of Iowa Code section 625.2 do not apply.

(2)The costs for expert witnesses are determined in accordance with Iowa Code section 622.72. For purposes of calculating the mileage expenses allowed under that section, the provisions of Iowa Code section 625.2 do not apply.

(3)The provisions of Iowa Code section 622.74 regarding advance payment of witness fees and the consequences for failure to make such payment are applicable with regard to witnesses who are subpoenaed by either party to testify at the hearing.

(4)The board may assess as costs the meal and lodging expenses necessarily incurred by witnesses testifying at the request of the state of Iowa. Meal and lodging costs shall not exceed the reimbursement employees of the state of Iowa receive for these expenses under the department of revenue guidelines.

c.Deposition costs. Deposition costs for purposes of allocating costs against a licensee include only those deposition costs incurred by the state of Iowa. The licensee is directly responsible for the payment of deposition costs incurred by the licensee.

(1)The costs for depositions include the cost of transcripts, the daily charge of the court reporter for attending and transcribing the deposition, and all mileage and travel time charges of the court reporter for traveling to and from the deposition that are charged in the ordinary course of business.

(2)If the deposition is of an expert witness, the deposition cost includes a reasonable fee for an expert witness. This fee will not exceed the expert’s customary hourly or daily fee and shall include the time reasonably and necessarily spent in connection with such deposition, including the time spent in travel to and from the deposition, but excluding time spent in preparation for that deposition.

d.Medical examination fees. All costs of physical or mental examinations or substance abuse evaluations or drug screening or clinical competency evaluations ordered by the board pursuant to Iowa Code section 272C.9(1) as part of an investigation of a pending complaint or as a sanction following a contested case shall be paid directly by the licensee.

506.34(3) Certification of reimbursable costs. The board administrator or designee will certify any reimbursable costs incurred by the board. The board administrator will calculate the specific costs, certify the cost calculated, and file the certification as part of the record in the contested case. A copy of the certification shall be served on the party responsible for payment of the certified costs at the time of the filing.

506.34(4) Assessment of fees and costs. A final decision of the board imposing disciplinary action against a licensee shall include the amount of any disciplinary hearing fee assessed. If the board also assesses reimbursable costs against the licensee, the board will file a certification of reimbursable costs that includes a statement of costs delineating each category of costs and the amount assessed. The board will specify the time period in which the fees and costs must be paid by the licensee.

a.Prior to seeking judicial review, a party shall file an objection to any fees or costs imposed by the board in order to exhaust administrative remedies. An objection shall be filed in the form of an application for rehearing pursuant to Iowa Code section 17A.16(2).

b.The application will be resolved by the board consistent with the procedures for ruling on an application for rehearing. Any dispute regarding the calculation of any fees or costs to be assessed may be resolved by the board upon receipt of the parties’ written objections.

506.34(5) Payment of fees and costs. All fees and costs assessed pursuant to this rule shall be made in the form of a check or money order made payable to the board and delivered to the board office.

506.34(6) Failure to make payment. Failure of a licensee to pay any fees and costs within the time specified in the board order constitutes a violation of an order of the board and may be grounds for disciplinary action.

481—506.35(17A,272C) Settlement agreements.

506.35(1) Upon a determination by the board that probable cause exists to take public disciplinary action, the board and the licensee may enter into a combined statement of charges and settlement agreement or consent order. Entering into a combined statement of charges and settlement agreement or consent order is voluntary, and no licensee is entitled to be offered a combined statement of charges and settlement agreement or consent order. The combined statement of charges and settlement agreement or consent order shall include a brief statement of the charges, the circumstances that led to the charges, and the terms of settlement. Execution of a combined statement of charges and settlement agreement or consent order constitutes the commencement and resolution of a contested case proceeding. By electing to sign a combined statement of charges and settlement agreement, the licensee waives the right to a contested case hearing on the matter and waives the right to receive the investigative file. A combined statement of charges and settlement agreement is a public record open for inspection pursuant to Iowa Code chapter 22.

506.35(2) Any contested case may be resolved by settlement agreement or consent order. Settlement negotiations may be initiated by any party at any stage of a contested case. No party is required to participate in the settlement process. The assistant attorney general representing the state of Iowa or approved department personnel are authorized to negotiate on behalf of the board.

506.35(3) The full board will not be involved in negotiations until a written proposed settlement is submitted to the full board for approval unless both parties waive this prohibition.

506.35(4) Consent to negotiation by the respondent during settlement negotiations constitutes a waiver of notice and opportunity to be heard during settlement negotiation pursuant to Iowa Code section 17A.17. Thereafter, the prosecuting attorney is authorized to discuss settlement with the board chairperson or designee or approved department personnel. By signing the proposed consent order, the respondent authorizes the prosecuting attorney or executive officer to have ex parte communications with the board related to the terms of settlement. A board member who is designated to act in negotiation of settlement is not disqualified from participating in the contested case should the case proceed to hearing.

506.35(5) Settlement agreements shall be completed at least seven days prior to the date scheduled for hearing whenever possible.

506.35(6) All settlements are subject to approval by the majority of the board. If the board fails to approve the settlement, it will be of no force or effect to either party and will not be admissible at hearing. Upon rejecting a proposed consent order, the board may suggest alternative terms of settlement that the respondent is free to accept or reject.

506.35(7) A settlement agreement is a public record open for inspection pursuant to Iowa Code chapter 22.

506.35(8) The board may accept the voluntary surrender of a license if it is accompanied by a written statement of intention. A voluntary surrender, when accepted in connection with a disciplinary proceeding, has the same force and effect as an order of revocation.

481—506.36(17A) 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 if it deems the waiver to be inconsistent with the public interest.

These rules are intended to implement Iowa Code chapters 17A and 272C.