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.
