Scope Statements
Chiropractic Examining Board
Subject
Revises chapters Chir 2, 3, and 5, relating to applications, biennial registration (renewal), licensure by endorsement, temporary permits, and continuing education.
Objective of the Rule
2007 Wisconsin Act 104 amends several sections of ch.
446, Stats., Practice of Chiropractic. The amendments to ch.
446, Stats., require the Chiropractic Examining Board to amend administrative rules of application for licensure, licensure by endorsement, application for a temporary permit, renewal of licensure and continuing education. As per provisions of
2007 Wisconsin Act 104, the proposed rules shall include the requirement for applicants and licensees to be proficient in the use of automated external defibrillators (AED's) through the completion of an approved instruction program prior to initial licensure, issuance of a temporary permit and renewal of licensure. The proposed rules also indicate that training in the use of AED's is included in board continuing education.
Policy Analysis
The Chiropractic Examining Board's statute and rules governing application, licensure by endorsement, application for a temporary permit and renewal do not currently have a requirement for proficiency in the use of an AED. Current rules for renewal of licensure do require current certification in cardiopulmonary resuscitation (CPR); however, CPR training is not a prerequisite for licensure by endorsement or for the temporary permit. The implementation of the rules may initially be done through emergency rule making without finding of emergency (as per non-statutory provisions of
2007 Wisconsin Act 104).
The implementation of these rules will require licensed chiropractors to hold approved training in the use of AED's as a precondition for licensure by endorsement and for the temporary chiropractic permits for those practicing in state as a chiropractor for participants in a sporting or performing arts event. At the time of the publication of this scope statement, the four states surrounding Wisconsin (Michigan, Minnesota, Illinois, and Iowa) do not require chiropractors to obtain AED proficiency as a prerequisite for licensure or renewal.
Finally, the implementation of these rules, as directed by
2007 Wisconsin Act 104, will require all Wisconsin chiropractors to complete an approved training program in the usage of AED's prior to renewal in the current biennium. The current biennium ends on December 31, 2008.
Statutory Authority
Entities Affected by the Rule
Chiropractic license applicants, applicants for licensure by endorsement, applicants for temporary permit, active chiropractic license holders.
Comparison with Federal Regulations
There is no existing or proposed federal regulation that is intended to address the activities to be regulated by the rule.
Estimate of Time Needed to Develop the Rule
Total hours: 160.
Employee Trust Funds
Subject
Revises section
ETF 11.11, relating to legal counsel advising the boards that are attached to the department while a board considers a final decision pertaining to an appeal.
Objective of the Rule
The proposed modifications concern appointment of legal counsel by the Employee Trust Funds Board, Wisconsin Retirement Board, Teachers Retirement Board, Group Insurance Board, and the Deferred Compensation Board and the nature of the legal representation provided to those boards during their consideration of a final decision pertaining to a pending appeal. The proposed rule does not change the responsibility of the Department of Justice to provide legal counsel pursuant to Wis. Stat. s.
40.03 (3).
Policy Analysis
Under current law (Wis. Stat. s.
40.03 (3) ), the Department of Justice is required to furnish legal counsel and prosecute and defend all actions brought by or against the Employee Trust Funds Board, the Group Insurance Board, the department, or any employee of the department as a result of the performance of the department employee's duties. Under the current administrative rules, board staff arrange for legal counsel to advise the Employee Trust Funds Board, Wisconsin Retirement Board, Teachers Retirement Board, Group Insurance Board, and the Deferred Compensation Board from one of three sources: 1) the Department of Justice, if the department is a party to the appeal; 2) the department's chief counsel, if the department is not a party to the appeal; and 3) outside counsel, if neither the department's chief counsel nor the Department of Justice is able to provide legal counsel. The current rule also prescribes a number of specific duties of the legal counsel.
Under the proposed modifications, board staff may arrange for legal counsel for the boards as deemed necessary and in accordance with Wis. Stat. s.
40.03 (3). In addition, the proposed modifications will eliminate the specific duties of the legal counsel contained in the current rule and simply provide that the legal counsel shall provide legal representation to the board. The proposed modifications will provide the boards with additional flexibility in the use of legal counsel.
Statutory Authority
Entities Affected by the Rule
The proposed modifications would affect the various boards attached to the department, the department itself, and the Department of Justice.
Comparison with Federal Regulations
No specific federal regulation is implicated by this rulemaking. There is no impact on the provisions of the Internal Revenue Code regulating qualified pension plans. Similarly, there is no impact on s.
40.015, Stats., which requires that the Wisconsin Retirement System be maintained as a qualified plan.
Estimate of Time Needed to Develop the Rule
The Department estimates that state employees will spend 40 hours to develop this rule.
Financial Institutions - Securities
Subject
Revises the Wisconsin Securities Law, chs.
DFI-Sec 1 to
9, to reflect the recent repeal and recreation of the Wisconsin Securities Law in
2007 Wisconsin Act 196, and amends the Wisconsin Franchise Law rules, chs.
DFI-Sec 31 to
36, to make them consistent with recently adopted Federal Trade Commission franchise-related regulations.
Objective of the Rule
Because the repeal and recreation of the Wisconsin Securities Law in
2007 Wisconsin Act 196 (signed by the Governor on March 27, 2008) -- which involved the adoption of the 2002 Uniform Securities Act (“2002 USAct") as developed by the National Conference of Commissioners on Uniform State Laws -- resulted in changes to all aspects of Wisconsin securities regulation (definitions, securities registration procedures and registration exemptions, securities licensing, enforcement powers and procedures, as well as general administrative powers), the corresponding administrative rule chapters and provisions relating to those aspects/categories of law changes need to be updated and made consistent. Also, because the effectiveness date for
2007 Wisconsin Act 196 is January 1, 2009, the proposed rule-making process is being conducted now to enable the rules to be finalized concurrent with the effectiveness of the legislation.
Separately, because the adoption by the Federal Trade Commission of its FTC Franchise Rule (“the FTC Franchise Rule," which became effective for use on a voluntary basis for franchisors on July 1, 2007, and becomes effective on a mandatory basis July 1, 2008) supersedes and preempts several existing Wisconsin franchise rules establishing requirements for disclosure documents used in connection with the offer and sale of franchises to persons in Wisconsin, the Wisconsin franchise rules so impacted need to be revised to be consistent with the FTC Rule. As a related matter, remedial franchise-related legislation was enacted in
2007 Wisconsin Act 150 (effective April 5, 2008) which made a necessary statutory change to make Wisconsin's timing deadline within which franchisors must provide a franchise disclosure document to a prospective purchaser, consistent with the recent FTC Franchise Rule change on that subject.
Policy Analysis
The Wisconsin Securities Law rules relating to the corresponding statutory provisions of the Wisconsin Securities Law changed by
2007 Wisconsin Act 196 need to be revised and updated as necessary to be made consistent and thereby facilitate compliance by securities issuers and securities licensees for the benefit of Wisconsin public investors.
Similarly, the Wisconsin Franchise Law disclosure document-related rules impacted by the changes to the FTC Franchise Rule need to be revised and updated as necessary to be made consistent and thereby facilitate compliance by franchisors seeking to offer and sell franchises to persons in Wisconsin. For purposes of providing regulatory consistency among the 15 state jurisdictions (including Wisconsin) that regulate offers/sales of franchises, the Franchise and Business Opportunity Project Group of the North American Securities Administrators Association (“NASAA") developed in April, 2008, Draft 2008 Franchise Registration and Disclosure Guidelines (“ Franchise Guidelines") that state jurisdictions can adopt as the required format for franchise disclosure documents in states that register franchise offerings. Those Franchise Guidelines were developed to be, and are, consistent with the FTC Franchise Rule which allows franchise law states to impose additional disclosure requirements that are consistent with the FTC Franchise Rule. In that regard, the Franchise Guidelines adopt the FTC form of franchise disclosure document with the addition of a state cover page, and include new instructions for franchisors to file registrations with state administrators, as well as revised application forms. The proposed Wisconsin Franchise Rule revisions will include, via incorporation by reference, the above-described NASAA Franchise Guidelines and forms.
Statutory Authority
Sections
551.605 (1) (a),
(b),
(c),
(2),
(3) and
(4),
551.102 (2),
(4)(e),
(11) (p),
(15) (h),
(16) (d) and
(28) (h),
551.105,
551.201 (1) (b),
(3) (c),
(6),
(7) (intro.),
(a) and
(b),
551.202 (6),
(13) (c),
(14) (b) and
(23),
551.203,
551.302 (intro.),
(1) (a),
(b),
(c),
(3) and
(5),
551.304 (2) (intro.),
(r),
(3) and
(5),
551.305 (2),
(7),
(9),
(10) and
(11),
551.306 (1) (b),
551.401 (2) (h) and
(4) (intro.),
551.402 (2) (i) and
(5),
551.403 (2) (c),
551.404 (2) (b) and
(4),
551.405 (2) (a) 4.,
(c),
(3),
(4) (b) and
(c),
551.406 (1),
(3) (b),
(4) and
(5),
551.407 (4),
551.408 (5),
551.409,
551.411 (1),
(2),
(3) (a),
(c),
(5),
(6),
(7) and
(8),
551.411 (4) (b) and
(5),
551.502 (2) and
(3),
551.504 (1),
551.606 (3),
551.608 (2) (intro.),
551.611 (1),
551.614 (1) (b) 1.,
2. and
(4), Wis. Stats.
For the Franchise Law-related changes under Chapter
553, Wis. Stats:
Entities Affected by the Rule
Securities Law rules: Issuers of registered securities or securities exempt from registration, broker-dealers and their securities agents, investment advisers and their investment adviser representatives, federal and state securities regulatory authorities, and securities self-regulatory organizations.
Franchise Law rules: Franchisors making franchise registration filings in Wisconsin, all of which filings must include franchise disclosure documents covering prescribed categories of information.
Comparison with Federal Regulations
There are no newly-developed or proposed federal securities law-related regulations that are intended to be addressed by the proposed Wisconsin Securities Law rulemaking. However, the existing Wisconsin Securities Law and rules that currently coordinate with federal securities registration, registration exemption, broker-dealer and investment adviser licensing provisions will continue to be coordinated with corresponding federal requirements, consistent with current 551.67, Wis. Stats., and recently enacted 551.615, Wis. Stats. Each of those statute sections provide that "This Chapter shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact the `Uniform Securities Act' and to coordinate the interpretation and administration of this Chapter with related federal regulation."
With regard to the proposed Wisconsin Franchise Law-related rulemaking, as stated above in the Objectives and the Policy Analysis sections of this Scope Statement, such rulemaking is necessary in order to make Wisconsin's franchise disclosure document-related rules consistent with the Federal Trade Commission's recently adopted FTC Franchise Rule.
Estimate of Time Needed to Develop the Rule
150 hours to develop the comprehensive revisions necessary to be made to the Wisconsin Securities Law Rules.
15 hours to develop the Franchise Law-related rules.
Contact Information
Randall E. Schumann
Legal Counsel for the DFI-Division of Securities
345 W. Washington Avenue
Madison, Wisconsin 53703
(608) 266-3414
Government Accountability Board
Subject
Creates section
GAB 1.01, relating to a settlement offer schedule for campaign finance violations that are resolved by settlement between the Government Accountability Board and a registrant or other party.
Objective of the Rule
The rule establishes settlement offer guidelines that the Government Accountability Board staff use to resolve a campaign finance violation in lieu of an enforcement action.
Policy Analysis
Most minor or less serious violations of chapter 11 of the statutes, the campaign finance chapter, including late filing of campaign finance reports and exceeding aggregate (45%/65%) contribution limits, are resolved by settlement between the offending registrant and the Government Accountability Board, pursuant to s.
5.05 (1) (c), Stats. The previous settlement offer schedule followed by the former Elections Board needs to be up-dated by its successor, the Government Accountability Board and needs to be codified by rule.
Statutory Authority
Entities Affected by the Rule
All persons and committees who register with the Government Accountability Board or with any other filing officer under Chapter
11, Stats., and any other persons or committees who fail to comply with Chapter
11, Stats.
Comparison with Federal Regulations
Currently, the majority of the Federal Election Commission's cases are settled through pre-probable cause conciliation comparable to Wisconsin's settlement procedure. Consistent with the goal of expeditious resolution of enforcement matters, the Commission encourages pre-probable cause conciliation. The Commission has a practice in many cases of reducing the civil penalty it seeks through its opening settlement offer in pre-probable cause conciliation. However, once pre-probable cause conciliation has been terminated, this reduction (normally 25%) is no longer available and the civil penalty will generally increase. The FEC is now moving to make permanent a program that allows respondents to request and receive a hearing on a probable cause determination as part of the conciliation procedure, to increase the probability of conciliation.
Estimate of Time Needed to Develop the Rule
At least 40 hours of state employees' time.
Health and Family Services
Subject
Revises chapter HFS 105 to include federally recognized American Indian tribes and bands in Wisconsin as being eligible for MA certification as personal care providers.
Policy Analysis
These rule changes will be part of a larger rulemaking order. A statement of scope regarding the other elements of the rulemaking order, all of which relate to home care services under Wisconsin Medicaid, appeared in the Wisconsin Administrative Register on July 31, 2003.
Currently under s.
HFS 105.17 (1) only licensed home health agencies and county departments established under ss.
46.215,
46.22, or
46.23, county departments established under 51.42, or 51.437, Stats., which have the lead responsibility in the county for administering the community options program under s.
46.27, Stats., or an independent living center as defined under s.
46.96 (1) (ah), Stats., are eligible to receive MA certification as personal care providers.
Wisconsin Medicaid is considering revising s.
HFS 105.17 to include the eleven federally recognized Wisconsin tribes and bands to the list of governmental entities allowed to be certified as Wisconsin Medicaid personal care providers. The change would allow the tribal agencies the same right to certification as is granted to a county department established under s, 46.215, 46.22 or 46.23 Stats., and to a county department established under s.
51.42 or
51.437, Stats., which has the lead responsibility in the county for administering the community options program under s.
46.27, Stats.
This change assists Governor Doyle in implementing the State-Tribal Consultation Initiative, which originated with his issuance of Executive Order #39 in 2004. Executive Order #39 recognized the sovereignty of the 11 tribal governments in Wisconsin and the unique government-to-government relationship that exists between the State and the tribes. The Initiative is a comprehensive program aimed at increasing the ties between state agencies and tribal governments to streamline and improve the services our governments provide to both tribal and non-tribal members. This Initiative, now fully underway and unique in Wisconsin's history, will pave the way for state-tribal partnerships well into the future.
Given the fact that Medicaid is a partnership between state and federal government, it is appropriate that the 11 tribal governments in Wisconsin be given every opportunity to exercise their sovereignty. This initiative is but a small part of that effort.
Statutory Authority
Entities Affected by the Rule
Federally recognized American Indian tribes or bands in Wisconsin.
Comparison with Federal Regulations
Several sections of the Code of Federal Regulations provides the regulatory authority to provide services under the various home care programs of the Medicaid program. 42 CFR section 440.70 provides the regulatory authority to provide home health services, while 42 CFR section 440.80 addresses private duty nursing services; 42 CFR section 440.166 addresses nurse practitioner services; 42 CFR section 440.167 addresses personal care services; and 42 CFR section 440.185 addresses respiratory care for ventilator-dependent individuals. The federal regulations are less detailed than the proposed rule. The Department believes that its proposed administrative rule changes are necessary to increase the conformance of administrative rules with current accepted service technologies and delivery systems, state statutes, and federal regulations.
Estimate of Time Needed to Develop the Rule
Department staff estimate it will take Division of Health Care Access and Accountability staff about 8 hours to develop and promulgate the proposed rules.
Medical Examining Board
Subject
Revises section
Med 20.05, relating to temporary certificates for respiratory care practitioners.
Objective of the Rule
To conform ch.
Med 20, relating to respiratory care practitioners, to the provisions enacted by
2007 Wisconsin Act 54, which created a temporary certificate for the practice of respiratory care.
Policy Analysis
The temporary certificate to practice respiratory care authorized by this Act allows for a maximum of three months of practice under the certificate. This is available to a limited category of applicants who have passed the national examination. Currently there is a one year temporary certificate available to applicants who have not passed the national examination.
Statutory Authority
Entities Affected by the Rule
The Medical Examining Board, the Respiratory Care Practitioners Examining Council, the Wisconsin Department of Regulation and Licensing, respiratory care practitioners and health care facilities.
Comparison with Federal Regulations
None.
Estimate of Time Needed to Develop the Rule
40 hours
Natural Resources
Fish, Game, etc., Chs.
NR 1—
Subject
Revises chapter NR 10, relating to seasons and daily bag limits for migratory game bird hunting.
Policy Analysis
This rule order will establish the 2008 migratory bird hunting seasons. In late July Department staff attend the Mississippi Flyway Council (MFC) Technical and Council meetings where they will receive proposed season framework options from the U.S. Fish and Wildlife Service (USFWS). Staff will then work with other states in our Flyway to develop recommendations that are voted upon by the MFC. Proposals that are passed at the MFC meeting are forwarded to the FWS for consideration by the Service Regulations Committee (SRC) in late July. Department staff will contact the FWS following the SRC meeting to obtain the latest season recommendations.
While not traditionally a part of this rule making process, this year the proposal may include a provision that changes the mourning dove hunting season. At a meeting in June the USFWS will discuss extending that season by ten days and, if approved, the new season could be adopted in our state rules.
Once the USFWS's final framework is available, Department staff can summarize waterfowl status and regulation information for Wisconsin citizens. This information is presented and public comments are received from the Migratory Committee of the Conservation Congress and a public meeting (Post-Flyway Meeting) of interest groups and individuals. The following week, public hearings will be held around the state to solicit additional input. The Department then promulgates a permanent and emergency rule simultaneously in order to open the waterfowl seasons in September.
Statutory Authority
Entities Affected by the Rule
These rules will impact migratory game bird hunters and those who enjoy viewing waterfowl in the state of Wisconsin.
Comparison with Federal Regulations
Under international treaty and Federal law, migratory game bird seasons are closed unless opened annually through the USFWS regulations process. As part of the federal rule process, the service proposes a duck harvest-management objective that balances hunting opportunities with the desire to achieve waterfowl population goals identified in the North American Waterfowl Management Plan (NAWMP). Under this harvest-management objective, the relative importance of hunting opportunity increases as duck populations approach the goals in the NAWMP. Thus, hunting opportunity is maximized when the population is at or above goals. Other factors such as habitat are also considered. The Regular Canada goose season is based on the allowable Mississippi Valley Population (MVP) harvest which will be determined based on the spring breeding population goal for that population and the spring population estimate obtained from an aerial survey of the MVP breeding range. All the proposed modifications included in this rule order are consistent with these parameters and guidelines which are annually established by the Fish and Wildlife Service in
50 CFR 20.
Estimate of Time Needed to Develop the Rule
Approximately 500 hours will be needed by the Department to develop the rule prior to and following the hearings.
Agency Contact Person
Kent Van Horn, Migratory Birds Specialist, 101 South Webster Street, PO Box 7921, Madison, WI 53707-7921, (608) 266-8841,
Kent.Vanhorn@wisconsin.gov
Public Instruction
Subject
Revises ch.
PI 30, relating to special education aid for certain pupil services personnel.
Policy Analysis
The salaries of school nurses, school social workers, school psychologists, and school counselors employed for a special education program are among the costs that are eligible to be reimbursed by the state through special education aid. If the amount appropriated for such aid is insufficient to fully reimburse the costs, the amount paid is prorated.
2007 Wisconsin Act 221 grants the department rule making authority and directs the department to determine the average percentage of work time that each of the personnel categories specified above spends providing services to children with disabilities, and provides that that percentage of the salaries of personnel in that category is the cost eligible for reimbursement from the state.
The proposed rules will specify the average percentage of the salaries of school nurses, school social workers, school psychologists, and school counselors that are eligible for reimbursement from the state.
Statutory Authority
Entities Affected by the Rule
Public School Districts, CESAs, and CCDEBs.
Comparison with Federal Regulations
N/A
Estimate of Time Needed to Develop the Rule
The amount of time needed for rule development by department staff and the amount of other resources necessary are indeterminable. The time needed to create the rule language itself will be minimal. However, the time involved with guiding the rule through the required rule promulgation process is fairly significant. The rule process takes more than six months to complete.
Transportation
Subject
Creates chapter Trans 263, relating to a multiple trip permit for certain overweight vehicles or vehicle combinations transporting granular roofing materials.
Objective of the Rule
This rule making is required by
2007 Wis. Act 171. The law establishes certain conditions for the permit and certain limitations on operation. This proposed rule will implement those conditions and limitations. The proposed rule will also define “granular roofing material" in order to make eligibility for permit and enforcement clear and uniform.
Policy Analysis
This proposed rule implements a newly-enacted law. This rule making does not amend existing policies. On the other hand, to the extent allowed by the newly-enacted law, this proposed rule will apply to the new permit similar policies that the Department currently applies to other multiple trip permits.
Statutory Authority
Entities Affected by the Rule
Motor carriers and shippers that transport granular roofing materials, under the provisions of
2007 Wis. Act 171.
Comparison with Federal Regulations
Federal regulation governs overweight transport on certain federal highways, including general prohibition of divisible overweight loads on Interstate highways.
2007 Wis. Act 171 provides that a permit under this law may be issued for up to 2.5 miles on any state trunk highway if consistent with federal law. In implementing s.
348.27 (15) (d), Stats., this proposed rule may address the issue of consistency with federal law.
Estimate of Time Needed to Develop the Rule
100 hours
