Judicial review a right for all

By Dean Lerner

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The Sept. 21 Des Moines Register guest view submitted by Rod Roberts, director of the Iowa Department of Inspections and Appeals - the agency responsible for overseeing the health, safety and welfare of vulnerable Iowans in nursing homes and assisted living programs - is long on platitudes and short on facts.

The director diminishes the depth of public concern about his new administrative rules governing the process under which owners of for-profit nursing homes and assisted-living programs can challenge citations and fines issued against them. The rules, ushered in politically by his department, create an unprecedented means by which regulated entities can, in certain, critical circumstances, prevent the DIA's judicial review of industry-favorable decisions, while reserving to themselves the opportunity to appeal unfavorable decisions to the Iowa District Court.

The development is unprecedented because it is unlawful. More specifically, it violates Iowa's Administrative Procedures Act, Iowa Code chapter 17A, which assures either party (that is, a state agency or a private citizen or business) dissatisfied with a final agency action in a contested case proceeding can appeal that action to the Iowa District Court for independent review by a judge, and then to the Iowa Appellate Courts.

Such an assurance protects citizens from the arbitrary conduct of governmental agencies, provides that executive departments exercise authority in full sunlight, establishes precedent for consistent decision-making, is controlled by the Code of Judicial Conduct, and treats both parties impartially.

The types of serious violations invoking citations and fines that are the subject of Director Roberts' new review processes often are the result of complaints filed with the DIA following injuries or death suffered by residents of facilities. Director Roberts' rules invent an unprecedented tier of “independent reviewers,” people not necessarily bound by any Code of Judicial Conduct or rules of civil procedure or evidence, whose decisions favoring owners will never see the light of an Iowa courtroom. At the same time, facility owners dissatisfied with an independent reviewer's ruling retain full rights of further judicial review.

Virtually every regulatory agency has oversight over one or more powerful entities whose owners' financial interests would benefit from a comparable administrative scheme.

Gov. Terry Branstad, Attorney General Tom Miller and legislative members of the Administrative Rules Review Committee owe it to Iowans to object to these rules and to send the statute back to the Iowa General Assembly to assure full conformity with Iowa's most fundamental element of due process: the right of all parties to a contested matter to seek judicial review of final agency action.

l Dean Lerner of Des Moines served as director of the Iowa Department of Inspections and Appeals from 2007 until 2012, when Gov. Terry Branstad replaced him. Comments: deanalerner@gmail.com