Scope statements
Architects, Landscape Architects, Professional Engineers, Designers and Land Surveyors
Subject
Sanctions for cheating on examinations for land surveyors.
Objective of the Rule. The proposed rule will increase the penalties for cheating on examinations.
Policy analysis
The proposed rules will authorize the board to prohibit examinees from writing for as many as the next six scheduled examinations after the examination during which the cheating occurred. The number of examinations the examinee would be prohibited from writing would be determined by the board and based upon the seriousness of the cheating offense.
Statutory authority
Staff time required
25 hours.
Architects, Landscape Architects, Professional Engineers, Designers and Land Surveyors
Subject
Changing the “principles and practice examination" to the jurisprudence examination.
Objective of the Rule. To change the name of the examination that relates to temporary permits for land surveyors.
Policy analysis
In
Clearinghouse Rule 02-090 the examination was stated as being “principles and practice examination." It should be the “jurisprudence examination." This amendment will correct the name.
Statutory authority
Staff time required
5 hours.
Chiropractic Examining Board
Subject
Minor changes to all rules. Objective of the Rule. To remove inconsistencies, correct oversights and conform rules to current practices.
Policy analysis
No new policies are contemplated at this time. The board wishes to undertake a review of all its rules in order to identify inconsistencies, omissions, and language that does not reflect current practices or processes in the department. It is possible that the review will identify the need to change existing policies or incorporate new policies into the rules, and a decision will have to be made as to whether the effects are significant enough to initiate a separate rule promulgating process.
Statutory authority
Staff time required
a. 25 hours of legal counsel time conferring with board members to identify the changes, and 10 hours of legal counsel time drafting and redrafting the changes.
b. 20 hours of one board member's time to identify the changes, plus 4 hours x 6 board members = 24 board member hours spent discussing and redrafting the changes, for a total of 44 board member hours.
c. 40 hours of paralegal's time preparing scope statement, rules at different stages of promulgation, notice of submittal, clearinghouse letter, hearing notice, review for small business impact, preparing report to the legislature, summarizing hearing testimony and written comments, proofreading drafts of rules for publication in the code.
Elections Board
Subject
Create s. ElBd 6.06, regarding funding Elections Board implementation of the federal Help America Vote Act.
Policy analysis
Under the federal Help America Vote Act of 2002, this state is eligible to receive federal financial assistance for the purchase of voting equipment, compliance with federal requirements for the conduct of federal elections and other election administration costs, implementation of a state-wide voter registration system, construction of barrier-free polling places, and training of election officials to enable greater participation of individuals with disabilities in federal elections. To be eligible for most of this federal assistance, this state must make expenditures from state moneys equal to at least 5% of the amount spent by this state for the same purposes for which federal assistance is received.
The Wisconsin Legislature requires the Elections Board to adopt an administrative rule to specify the amount to be allocated for each specific purpose from the Help America Vote Election Fund before spending any money from the fund for that fiscal year. The Board proposes to adopt rules specifying amounts and purposes for fiscal years 2003, 2004 and 2005.
Statutory authority
Staff time required
10 hours for each rule.
Financial Institutions - Securities
Subject
Rules to conform Wisconsin's existing Securities Law rules requirements concerning broker-dealer books and records to new, federally-mandated standards under the federal Securities Exchange Act.
Policy analysis
Objective of the rules. To adopt permanent rules to be in effect upon expiration of identical emergency rules issued by the Division on May 2, 2003 to conform Wisconsin's Securities Law rules requirements concerning broker-dealer books and records to federally-mandated standards adopted by the U.S. Securities and Exchange Commission (“Commission") under the federal Securities Exchange Act that became effective on May 2, 2003.
Congress in its passage of the National Securities Markets Improvement Act (“NSMIA") in 1996 prohibited state securities regulators from establishing or enforcing under their state securities laws or rules, record-keeping requirements for securities broker-dealers that are inconsistent with, or not required by, the Commission.
Following passage of NSMIA, the Commission commenced a rule-making process that spanned a several-year period (including a 1998 reproposal of the entirety of the proposed rules for a new public comment period), culminating in adoption in late 2001 of an extensive series of broker-dealer books and records rules for effectiveness commencing May 2, 2003. The Commission?s revised books and records rules cover a comprehensive series of areas, including: (1) customer account records; (2) order ticket information; (3) customer complaints; (4) mandated reports and audits; (5) compliance manuals; (6) records maintenance, retention, production and access; and (7) records required to be maintained at a firm's home office and at “local" offices.
Because of the preemptive effects of federal law under NSMIA, all of the existing provisions of the Wisconsin administrative rules in chapter SEC 4 under the Wisconsin Securities Law dealing with broker-dealer books and records covering the information categories (1) to (6) described above are superseded by the federal rules established by the Commission that became effective May 2, 2003. Additionally, certain existing Wisconsin Rule of Conduct provisions tied to the existing Wisconsin books and records rules needed to be revised appropriately.
Consequently, it is necessary to adopt permanent rules to revise and amend Wisconsin's broker-dealer books and records rules to conform to the federal rules that now have become effective, and to remove inconsistent requirements contained in the existing Wisconsin books and record-keeping rules. A subcommittee of the North American Securities Administrators Association (“NASAA"), an organization comprised of the securities administrators of all 50 states, including Wisconsin, has reviewed the impact of the Commission's books and record-keeping rules on existing state securities law licensing rules, and recommended that states utilize the incorporation-by-reference-of-the federal-rules treatment as was set forth in the Order Adopting Emergency Rules, and which treatment also will be used to adopt the rules in permanent form.
Description of existing relevant policies and new policies proposed to be included in the rule and an analysis of policy alternatives
(1) The entirety of the existing Wisconsin general books and records requirement for licensed broker-dealers as set forth in rules s.
DFI-Sec 4.03 (1) to
(4) (that particularizes the types of required books and records, and prescribes records retention periods), will be repealed and recreated to incorporate by reference the new, superseding, federal rules adopted by the Commission contained in sections 17a-3 and 4 under the Securities Exchange Act. A new sub. (1) will require a firm to retain the books and records cross-referenced in federal SEC rules 17a-3 and 4, and a new sub. (2) will incorporate by reference the records preservation and retention requirements in federal rule 17a-4. New subsections (3) and (4) will replace the current Wisconsin rules in s.
DFI-Sec 4.03 (3) and
(4) [that prescribe branch office records and retention requirements], with language which provides that the books and records required to be prepared and maintained at broker-dealer offices triggering the definition of “branch office" under current rule s.
DFI-Sec 1.02 (7) (a), are the same records prescribed under the new federal provisions in new federal Rule 17a-3, and must be held for the retention periods specified in new federal Rule 17a-4.
(2) Current Wisconsin rule s.
DFI-Sec 4.03 (6) [which permitted broker-dealers to utilize alternative records to satisfy the principal office and branch office records required in existing rules s. DFI-Sec 4.03 (1) and (3)], will be repealed because under NSMIA, states no longer have the authority to permit alternative forms of broker-dealer records different from the records prescribed by federal law.
(3) The existing Wisconsin Rule of Conduct provision in s.
DFI-Sec 4.05 (5) [requiring broker-dealers to provide customers with prescribed new account information and subsequent amendments to such information] will be amended to both substitute a cross-reference to the new federal provision on that subject in rule 17a-3(a)(17) under the federal Securities Exchange Act of 1934, and to repeal language in the Wisconsin rule inconsistent with federal provisions.
Statutory authority
Staff time required
Estimated time to be spent by state employees to develop the rule--10 hours. [The form and content of the rules already have been developed in connection with the already-completed emergency rule adoption process.] No other resources are necessary.
Financial Institutions - Securities
Subject
Annual rule revision process for the Rules of the Division of Securities, Department of Financial Institutions, relating to the Wisconsin Uniform Securities Law.
Policy analysis
Objective of the rules. The Division's annual rule revision process is conducted for the following purposes in 2003:
(1) Amending several of the existing Administrative Procedure-contested case rules in Chapter
DFI-Sec 8, Rules of the Division of Securities dealing with effectuating service and providing notice of administrative orders on named parties, as well as appearances at administrative proceedings by representatives of named parties.
Description of existing relevant policies and new policies proposed to be included in the rule and an analysis of policy alternatives
Existing and new policies contained in the proposed rules include:
1. Existing rules relating to appearances at administrative proceedings by representatives of named parties need to be amended to reflect a recent Wisconsin court determination that precludes persons not licensed as attorneys in Wisconsin from representing named parties in contested case administrative proceedings before Wisconsin state agencies.
2. Existing rules relating to effectuating service of summarily-issued Division administrative orders on named parties needs to be amended to provide that if a named party is a corporation, service via certified mail can be accomplished either by sending to the corporation directly at its last known address, or by sending to the corporation's registered agent at its last known address, or by doing both.
3. Existing rules relating to effecting service by the Division of administrative orders on named parties needs to be amended to provide that if the named party is represented by legal counsel, service can be accomplished by serving legal counsel representing the named party.
Statutory authority
Staff time required
Estimated time to be spent by state employees to develop the rules--2 hours. No other resources are necessary.
Health and Family Services
Subject
The Department proposes to develop a rulemaking order that modifies ch.
HFS 119 regarding the Wisconsin Health Insurance Risk-Sharing Plan (HIRSP). Modifications to ch.
HFS 119 need to reflect the annual actuarial update of HIRSP policyholder health insurance premiums, insurer assessments and provider payment rates for the period beginning July 1, 2003.
Policy analysis
The Department has a longstanding HIRSP for medically at-risk citizens. The Department has amended ch.
HFS 119 each and every state fiscal year since 1998. This proposed rulemaking order involves the HIRSP update for the state fiscal year beginning July 1, 2003. The rule changes affect policyholder premiums, insurance assessments and provider assessments. The rule changes must be updated in accordance with current HIRSP costs and funding requirements, statutory requirements, the Governor's recommended 2003-05 budget, generally accepted actuarial principles, and actions taken by the HIRSP Board of Governors at its April 9, 2003, meeting.
The effect of the amended rule will be to ensure Department coverage of ongoing HIRSP costs for state fiscal year 2004. Without this annual update, HIRSP program costs will soon exceed HIRSP program revenues.
Statutory authority
Staff time required
The estimated DHCF staff time and other resources needed to develop and promulgate these rules will be about 120 hours. Included in this estimate is the time required to make actuarial calculations, rule drafting and promulgation.
Health and Family Services
Subject
The Department proposes to revise ch.
HFS 129, relating to the certification of programs and requirements for training and testing of nurse assistants, home health aides, and hospice aides.
Policy analysis
The Department proposes to revise ch.
HFS 129 for several reasons:
1. To reflect the Department's decision to standardize the administration and operation of nurse aide competency evaluation statewide by contracting for this service.
Federal regulations set forth under CFR 483.152 and 483.154 authorize states to choose to offer a nurse aide training and competency evaluation program, or to review, and approve or disapprove program applications upon request. For the past 11 years, the Department has been reviewing, and approving or disapproving nurse aide training and competency evaluation programs based on standards in s.
HFS 129.08. Anyone who meets those standards may conduct a testing program. However, the Department believes that specifying standards for competency evaluation programs cannot assure the maintenance of neutral and objective facility-sponsored instructional and competency evaluation tests that are free from possible inherent conflicts of interest posed by the need to meet facility staffing requirements. Therefore, the Department wants to modify ch.
HFS 129 to reflect the Department's contracting out responsibility for such competency testing.
2. To improve the accuracy and integrity of the nurse aide registry.
Under s.
146.40 (4g), Stats., and s.
HFS 129.10, the Department is required to maintain a list, known as a “registry," of all persons deemed qualified to work in Wisconsin as a nurse aide. Aside from committing an offense that would bar a person from remaining on the list, there are currently no provisions for removing a person's name from list, even though the person may no longer be available or interested in serving as a nurse aide. The Department believes that the list of qualified nurse aides, currently numbering over 156,000, contains many persons who no longer are available or interested in working as a nurse aide. Therefore, the Department will propose to modify s.
HFS 129.10 to require nurse aides to periodically update their registration information and, in the process, allow the Department to maintain a more accurate list of nurse aides. Periodic updating will also provide the Department the opportunity to verify the information provided by nurse aides.
3. To clarify who is eligible to work as a nurse aide under specific circumstances.
The Department proposes to modify s.
HFS 129.10 to clarify who may be included on the registry and who is eligible to work as a nurse aide and, specifically, a medication aide. The Department will also clarify the circumstances under which a person not currently included on the registry may work in a health care facility.
4. To make ch.
HFS 129 more consistent with current federal regulations governing nurse aides.
The Department will propose revising aspects of ch.
HFS 129 to reflect federal requirements established since ch.
HFS 129 was originally promulgated over 10 years ago. Specifically, the Department will propose to incorporate federal requirements relating to:
• Withdrawal of Department approval of a nurse aide training and competency evaluation program or a nurse aide competency evaluation program if the entity providing the program refuses to permit unannounced visits by the State.
•Nurse aide training needing to be performed by or under the general supervision of a RN who possesses a minimum of 2 years of nursing experience, at least 1 year of which must be in the provision of long term care facility services.
• The inability of a facility to charge fees for training and competency testing to a person who is employed by or has received an offer of employment from a health care facility. In addition, in the case of a person becoming employed by federally certified nursing home within 12 months after completing a training and testing program, the requirement for the Department to reimburse the person for the costs of such training and testing.
• Requiring that the skills demonstration part of the evaluation be performed in a facility or laboratory setting comparable to the setting in which the person will function as a nurse aide and be administered and evaluated by a RN with at least 1 year's experience in providing care for the elderly or the chronically ill of any age.
• Requiring a competency testing program to use a systems that prevent disclosure of both the pool of questions and the individual competency evaluations.
• Requiring that the skills demonstrated must consist of a demonstration of randomly selected items drawn from a pool consisting of the tasks generally performed by nurse aides.
• Establishing what happens if a person does not complete the evaluation satisfactorily, and impose a maximum number of three times that person may attempt to complete the evaluation successfully.
5. To expand the mechanisms available to the Department for enforcing compliance of testing and evaluation programs.
Existing enforcement options in s.
HFS 129.05 (2) (c) are limited to suspension or revocation of certification or imposing a plan of correction. Although these are valuable enforcement tools, they do not give the Department the flexibility it needs to tailor its response to the severity of non-compliance with this chapter. The Department will propose to revise ch.
HFS 129 to include additional enforcement options such as requiring a training or competency program whose approval has been revoked to remain ineligible to submit a new nurse aide training or testing program application for a period of up to one year, issuing a statement of deficiency and placing conditions on certification. The Department also will propose additional enforcement penalties for instructors and examiners who fail to follow program requirements.
Statutory authority
Staff time required
The Department estimates that it will take approximately 50 hours to draft the rulemaking order.
Natural Resources
Subject
Section
NR 30.01 (1) (h) pertaining to the forest protection area of Jackson County.
Policy analysis
Throughout Wisconsin there are three types of forest fire protection designated for lands lying outside the limits of incorporated cities or villages. Where it has been determined by the Department there is a need for the Department to provide organized forest fire protection, there is established either an Intensive or Extensive forest fire protection area. On all other lands outside the limits of incorporated cities or villages a Cooperative forest fire protection designation is applied. ss 26.13 (1) Stats provides the chairperson of the town board will be the person responsible for providing forest fire prevention, detection, and suppression in the township. ss 26.13 (2) Stats places the responsibility for paying for all costs for this protection on the township. It also provides a mechanism for the township to levy a tax to pay these expenses. ss 26.13 (3) Stats gives the township the authority to regulate all burning within the township through a burning permit system. ss26.11 (6) Stats provides a mechanism for the Department to assist a township in Cooperative protection after they have expended an amount specified. It also provides a mechanism for the Department to cover its costs.
The Township of Irving in Jackson County has petitioned to have parts of its lands removed from the Department's organized forest fire protection area.
Approval of this request from the Township of Irving would result in the relegation of responsibility to local authority. The citizens and landowners of the Township of Irving should be given a chance to clearly understand the totality of these changes. The Department is requesting a public hearing be held in the Township of Irving to offer such an opportunity.
Statutory authority
Staff time required
Approximately 22 hours will be needed by the Department.
Transportation
Subject
Objective of the rule. This rule making will amend chs.
Trans 325 and
326, relating to motor carrier safety and hazardous material transportation safety, to bring them into conformance with changes to the Federal Motor Carrier Safety Regulations and Hazardous Material regulations which will go into effect on January 4, 2004. Amendment of these rules will assure State Patrol inspectors and troopers are enforcing the most recent Safety regulations for Interstate Carriers and Hazardous Material (HM) regulations for both interstate and intrastate HM carriers.
1. Trans 325 (Motor Carrier Safety Regulations) - interstate. Amend the rule to include all changes in effect as of January 4, 2004. Changes have been made to the Federal Motor Carrier Safety regulations Title 49, Parts 390 through 397, regulating interstate operations. Amendment to this rule will bring state regulations in compliance with current interstate regulations.
2. Trans 326 (Motor Carrier Safety Requirements for Transportation of Hazardous Materials) for interstate and intrastate operations. Amend the rule to include all changes which have been made to Federal Motor Carrier Safety regulations
49 CFR Parts 107,
171,
172,
173,
177,
178, and
180 and in effect as of January 4, 2004. Amendment to this rule will bring state regulations, interstate and intrastate regulations into compliance with current federal regulations.
Policy analysis
TRANS 325
The Department annually updates ch.
Trans 325 to keep current with the most recent changes and revisions to the Federal Motor Carrier Safety regulations. The revisions allow state inspectors and troopers to enforce the most current safety regulations already in effect for interstate motor carriers. The rule will continue to reference the use of the most recent North American Standard Out-of-Service criteria for placing vehicles and drivers out of service.
TRANS 326
The Department annually updates ch.
Trans 326 to keep current with the most recent changes and updates to the federal hazardous material regulations. The revisions will allow state inspectors to enforce the most current hazardous material (HM) regulations already in effect for interstate and intrastate carriers. The rule will continue to reference the use of the most recent North American Standard Out-of-Service criteria vehicles and drivers out of service.
Statutory authority
Staff time required
It is estimated that state employees will spend 100 hours on the rule making process, including research, committee meetings, drafting and conducting public hearings.
Transportation
Subject
Objective of the rule. This rule making will amend ch.
Trans 327, relating to intrastate motor carrier safety regulations to bring them into conformity with the most recent changes to the Federal Motor Carrier Safety Regulations which will go into effect on January 4, 2004.
Amendment of this rule will assure State Patrol inspectors and troopers are enforcing the most recent Federal Motor Carrier Safety regulations for intrastate carriers.
This proposed rule will keep the Department in compliance to qualify for continued Motor Carrier Safety Assistance Program (MCSAP) funding.
Policy analysis
The Department annually updates Trans 327 to keep current with the most recent changes to the Federal Motor Carrier Safety Regulations,
49 CFR parts 40,
382,
390,
391,
392,
393,
395,
396, and
397.
The rule will continue to reference the use of the most recent North American Standard Out-of-Service criteria for placing vehicles and drivers out-of-service.
Statutory authority
Staff time required
It is estimated that state employees will spend 100 hours on the rule making process, including research, committee meetings, drafting and conducting public hearings.
