PROPOSED ORDER OF
DEPARTMENT OF HEALTH SERVICES
TO ADOPT PERMANENT RULES
The Wisconsin Department of Health Services proposes an order to repeal DHS 68.02 (3) and DHS 68.05 (2); to amend DHS 68.01 (1) and (2), DHS 68.02 (1), (4), (6), (8), (10), (13), (15) and (16), DHS 68.04 (2) through (4), (5) (Intro), (5) (a), (5) (b), (5) (c) (Intro), (5) (c) 4., DHS 68.05 (1) (Title), (1) (a) (Intro), (1) (a) 5., (1) (a) 9., (1) (b), (1) (c), DHS 68.06 (1) (Intro), (1) (a), (1) (c) and (d), DHS 68.07, DHS 68.09 (1), (3), and (4), and DHS 68.10 (1) (a), (1) (b), (1) (f); to repeal and recreate DHS 68.03, DHS 68.04 (1), DHS 68.06 (2) (b) and DHS 68.08; and to create DHS 68.02 (6m), (8m), (17) and (18), and DHS 68.04 (3m), DHS 68.06 (4), relating to Support for Persons with Alzheimer’s Disease and their Caregivers.
Explanation of agency authority
The Department’s authority to promulgate rules establishing criteria for participation in the Alzheimer’s Family and Caregiver Support Program, and to allocate funds for administering and implementing the program, are provided by the Wisconsin State Legislature in the following statutes:
From the appropriations under s. 20.435 (7) (b) and (o), the department shall allocate funds to agencies designated under sub. (3) (c) or (d), to be used for the administration and implementation of an Alzheimer's family and caregiver support program for persons with Alzheimer's disease and their caregivers. The department shall allocate at least $1,000,000 in each fiscal year toward respite care.
The department shall select counties and tribes or bands to participate in the program on the basis of criteria promulgated by rule.
Rule-making authority is expressly conferred on an agency as follows:
(a) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:
1. A statutory or nonstatutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency’s rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
2. A statutory provision describing the agency’s general powers or duties does not confer rule-making authority on the agency or augment the agency’s rule−making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
3. A statutory provision containing a specific standard, requirement, or threshold does not confer on the agency the authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.
Related statutes or rules
See the “Statutes interpreted” and “Statutory authority” sections.
Plain language analysis
2015 Wisconsin Act 273 amended eligibility requirements, increased appropriation levels and included tribes or bands as local administrators for the Wisconsin Alzheimer’s Family Caregiver Support Program (AFCSP). Revisions to ch. DHS 68 conform the rule to 2015 Act 273. Revisions also correct outdated terminology, update the range of caregiver support services that can be provided by the program, reconsider the program’s cost-share requirement, and establish a funding formula that includes tribes or bands as entities contracted to administer the AFCSP at the local level.
Summary of, and comparison with, existing or proposed federal regulations
There appears to be no existing or proposed federal regulations that address these activities to be regulated by the proposed rules.
Comparison with rules in adjacent states
Illinois does not have a state-funded Alzheimer’s Family and Caregiver Support Program.
Iowa does not have a state-funded Alzheimer’s Family and Caregiver Support Program.
Michigan does not have a state-funded Alzheimer’s Family and Caregiver Support Program.
Minnesota does not have a state-funded Alzheimer’s Family and Caregiver Support Program.
Summary of factual data and analytical methodologies
The department established an advisory committee formed of interested persons or representatives of the public to advise it with respect to proposed revisions to the rule. In addition, the department solicited comments from the public through its website and through the Wisconsin State Legislature’s administrative rules website. No additional factual data was relied upon by the department because revisions conform the rule to statute.
Analysis and supporting documents used to determine effect on small business
The rule is being promulgated to conform an existing rule to statute. The rule is anticipated to have little to no economic impact if it is promulgated.