AB677: Bill Text

Current law sets forth a procedure for the promulgation of administrative rules (rules). Generally, that procedure consists of the following steps:

1. The agency planning to promulgate the rule prepares a statement of the scope of the proposed rule, which the governor and the agency head must approve before any state employee or official may perform any activity in connection with the drafting of the proposed rule.

2. The agency drafts the proposed rule, together with an economic impact analysis, plain language analysis, and fiscal estimate for the proposed rule, and submits those materials to the Legislative Council Staff for review.

3. Subject to certain exceptions, a public hearing is held on the proposed rule.

4. The final draft of the proposed rule is submitted to the governor for approval.

5. The final draft of the proposed rule, together with an economic impact analysis, plain language analysis, and fiscal estimate for the proposed rule, are submitted to the legislature for review by one standing committee in each house and by the Joint Committee for Review of Administrative Rules.

6. The proposed rule is filed with the Legislative Reference Bureau (LRB) for publication in the Wisconsin Administrative Code (code) and the Wisconsin Administrative Register (register), and, subject to certain exceptions, the rule becomes effective on the first day of the first month beginning after publication.

Under this bill, if a bill that repeals or modifies a rule is enacted, the ordinary rule-making procedures under current law do not apply. Instead, the LRB must publish the repeal or modification, in the code and the register, and the repeal or modification, subject to certain exceptions, takes effect on the first day of the first month beginning after publication.

Treatments of administrative rules

Child care certification

Under current law, the Department of Children and Families (DCF) regulates the certification of child care operators for the purpose of reimbursement under the Wisconsin Shares child care subsidy program. Under DCF's current rules, agencies that may certify child care operators are called "county and tribal agencies" and include county departments of social services, county departments of human services, and tribal agencies. This bill amends DCF rules to refer to agencies that certify child care operators as "certification agencies." The bill expands the definition to include DCF in a county with a population of 750,000 or more and any agency that certifies child care operators through a contract with DCF, a county department of social services, a county department of human services, or a tribal agency.

DCF's current rules allow any county or tribal agency's action to deny, suspend, revoke, or refuse to renew a child care operator's certification to be appealed under administrative procedures that apply to local units of government. The bill amends DCF rules to specify that an action by DCF in a county with a population of 750,000 or more to deny, suspend, revoke, or refuse to renew a child care operator's certification may be appealed under administrative procedures that apply to state agencies.

DCF's current rules also require a family or in-home child care provider to demonstrate to a county or tribal agency that he or she is free from tuberculosis prior to certification or recertification, and allows the agency to accept tuberculosis test results only if administered up to 12 months before the certification application date. This bill amends DCF rules to allow a child care provider to demonstrate that he or she is free from tuberculosis prior to the date that provider began working with children if later than the certification date. The bill also amends DCF rules to allow a certification agency to accept the results of a tuberculosis test administered up to 12 months prior to the date the provider began working with children if later than the certification date.

Child care center operations

Under current law, no person may for compensation provide care and supervision for four or more children under the age of seven for less than 24 hours a day unless that person obtains from DCF a license to operate a child care center. Current law requires DCF to promulgate rules establishing standards for the operation of child care centers.

Those rules include a rule requiring a child care center providing care and supervision for not more than eight children (family child care center) to provide written information to parents on whether the family child care center has insurance coverage on vehicles, if transportation is provided by the family child care center. This bill eliminates that requirement.

Those rules also include a rule requiring a family child care center to maintain for each child enrolled in the family child care center a written record of enrollment information and health history on a form provided by DCF. This bill requires enrollment information and health history to be maintained on separate forms provided by DCF.

In addition, those rules include: 1) a rule requiring a child receiving care from a family child care center or a child care center providing care and supervision for more than eight children (group child care center) to have an initial health examination no later than three months after being admitted to the child care center and to have followup health examinations at certain intervals after that; and 2) a rule requiring a report on such a health examination to be made on a form provided by DCF that is signed and dated by a licensed physician, physician assistant, or HealthCheck provider, which is a provider of health assessment and evaluation services certified by the Department of Health Services. This bill permits a health examination report to be made on an electronic printout from a licensed physician, physician assistant, or HealthCheck provider.

Finally, the bill corrects, in the DCF rules relating to child care, certain cross-references to the rules governing the responsibilities and qualifications of group child care center program directors, teachers, and assistant teachers.

Child welfare agency licensing

Under current law, no person may provide care and maintenance for four or more children for 75 days in a 12-month period unless the person obtains from DCF a license to operate a child welfare agency. A child welfare agency license is valid until revoked or suspended, but must be reviewed every two years. To continue a child welfare agency license for an additional two years, a child welfare agency must submit an application for continuance of the license to DCF at least 30 days prior to the continuation date of the license. If DCF approves the application, DCF must continue the license for an additional two years.

Current rules promulgated by DCF governing the licensing of child welfare agencies, however, require a subsequent application by a child welfare agency to be submitted to DCF at least three weeks prior to the expiration of the current license. This bill conforms those rules to the statutes by modifying those rules to require a subsequent application by a child welfare agency to be submitted to DCF at least 30 days prior to the continuation date of the current license.

Public assistance records and transitional jobs demonstration project

The transitional jobs demonstration project, under which DCF provides a wage subsidy to an employer who employs an individual who is at least 21 but not more than 64 years of age, is ineligible for Wisconsin Works (W-2), has an annual household income that is below 150 percent of the poverty line, is unemployed for at least four weeks, and is not eligible to receive unemployment insurance benefits, was repealed on July 1, 2013. This bill eliminates rules DCF was required to promulgate to operate the transitional jobs demonstration project.

Under current DCF rules, a county, tribal, or W-2 agency that contracts with DCF to administer one or more public assistance programs (income maintenance agency) is required to retain certain items used to verify information related to a public assistance case for certain amounts of time. For example, under current DCF rules, an income maintenance agency must retain items to verify an applicant's social security number, birth information, alien status, and medicare enrollment, if required to determine eligibility for public assistance, while the public assistance case is open. Current DCF rules also provide the conditions under which original case records that are copied in microfilm reproduction, optical disk, or electronic format may be destroyed. Finally, current DCF rules require that destruction of public assistance records must be done in a manner that make the records unreadable. This bill eliminates DCF's rules related to retaining public assistance case records.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB677,1 Section 1. 13.92 (4) (bm) of the statutes is created to read:

AB677,5,4 13.92 (4) (bm) If 2 or more rules filed under s. 227.20 or modified under s. 227.265 affect the same unit of the Wisconsin administrative code without taking cognizance of the effect thereon of the other rules and if the legislative reference bureau finds that there is no mutual inconsistency in the changes made by each such rule, the legislative reference bureau shall incorporate the changes made by each rule into the text of the unit and document the incorporation in a note to the unit. For each such incorporation, the legislative reference bureau shall include in a correction bill a provision formally validating the incorporation. Section 227.27 (2) is not affected by printing decisions made by the legislative reference bureau under this paragraph.

AB677,2 Section 2. 13.92 (4) (c) of the statutes is amended to read:

AB677,5,7 13.92 (4) (c) The legislative reference bureau may insert in the Wisconsin administrative code a note explaining any change made under par. (b) or (bm).

AB677,3 Section 3. 13.92 (4) (d) of the statutes is amended to read:

AB677,5,10 13.92 (4) (d) Sections 227.114, 227.116, 227.135, and 227.14 to 227.24 do not apply to any change made by the legislative reference bureau under par. (b) or (bm).

AB677,4 Section 4. 13.92 (4) (e) of the statutes is amended to read:

AB677,5,13 13.92 (4) (e) The legislative reference bureau shall prepare and keep on file a record of each change made under par. (b) or (bm).

AB677,5 Section 5. 13.92 (4) (f) of the statutes is amended to read:

AB677,5,16 13.92 (4) (f) The legislative reference bureau shall notify the agency involved of each change made under par. (b) or (bm).

AB677,6 Section 6. 35.93 (2) (b) 4. of the statutes, as affected by 2013 Wisconsin Act 20, is amended to read:

AB677,5,21 35.93 (2) (b) 4. Copies of all rules filed with the legislative reference bureau under s. 227.20 (1) or modified under s. 227.265 since the compilation of the preceding register, including emergency rules filed under s. 227.24 (3).

AB677,7 Section 7. 35.93 (2) (c) 1. of the statutes, as affected by 2013 Wisconsin Act 20, is amended to read:

AB677,6,3 35.93 (2) (c) 1. Each chapter of the Wisconsin administrative code that has been affected by rules filed with legislative reference bureau under s. 227.20 (1) or modified under s. 227.265, in accordance with sub. (3) (e) 1.

AB677,8 Section 8. 35.93 (3) of the statutes is amended to read:

AB677,6,18 35.93 (3) The legislative reference bureau shall compile and deliver to the department for printing copy for a register which shall contain all the rules filed under s. 227.20 or modified under s. 227.265 since the compilation of rules for the preceding issue of the register was made and those executive orders which are to be in effect for more than 90 days or an informative summary thereof. The complete register shall be compiled and published before the first day of each month and a notice section of the register shall be compiled and published before the 15th day of each month. Each issue of the register shall contain a title page with the name "Wisconsin administrative register", the number and date of the register, and a table of contents. Each page of the register shall also contain the date and number of the register of which it is a part in addition to the other necessary code titles and page numbers. The legislative reference bureau may include in the register such instructions or information as in the bureau's judgment will help the user to correctly make insertions and deletions in the code and to keep the code current.

AB677,9 Section 9. 35.93 (3) (e) (intro.) of the statutes, as affected by 2013 Wisconsin Act 20, is amended to read:

AB677,6,25 35.93 (3) (e) (intro.) The legislative reference bureau shall incorporate into the appropriate chapters of the Wisconsin administrative code each permanent rule filed with the legislative reference bureau under s. 227.20 (1) or modified under s. 227.265 and, for each chapter of the administrative code affected by a rule, do all of the following:

AB677,10 Section 10. 35.93 (3) (e) 1. of the statutes, as affected by 2013 Wisconsin Act 20, is amended to read:

AB677,7,8 35.93 (3) (e) 1. Publish the chapter in the appropriate end-of-month register in accordance with the filing deadline for publication established in the rules procedures manual published under s. 227.15 (7) or, in an end-of-month register agreed to by the submitting agency and the legislative reference bureau , or, in the case of a rule modified under s. 227.265, in the end-of-month register for the month in which the bill modifying the rule is enacted.

AB677,11 Section 11. 227.01 (13) (intro.) of the statutes is amended to read:

AB677,7,16 227.01 (13) (intro.) "Rule" means a regulation, standard, statement of policy, or general order of general application which has the effect of law and which is issued by an agency to implement, interpret, or make specific legislation enforced or administered by the agency or to govern the organization or procedure of the agency. "Rule" includes a modification of a rule under s. 227.265. "Rule" does not include, and s. 227.10 does not apply to, any action or inaction of an agency, whether it would otherwise meet the definition under this subsection, which:

AB677,12 Section 12. 227.11 (2) (intro.) of the statutes is amended to read:

AB677,7,19 227.11 (2) (intro.) Rule-making authority is expressly conferred on an agency as follows:

AB677,13 Section 13. 227.265 of the statutes is created to read:

AB677,7,25 227.265 Repeal or modification of rules. If a bill to repeal or modify a rule is enacted, the procedures under ss. 227.114 to 227.21 and 227.26 do not apply. Instead, the legislative reference bureau shall publish the repeal or modification in the Wisconsin administrative code and register as required under s. 35.93, and the repeal or modification shall take effect as provided in s. 227.22.

AB677,14 Section 14. 227.27 (2) of the statutes is amended to read:

AB677,8,7 227.27 (2) The code shall be prima facie evidence in all courts and proceedings as provided by s. 889.01, but this does not preclude reference to or, in case of a discrepancy, control over a rule filed with the legislative reference bureau or the secretary of state under s. 227.20 or modified under s. 227.265, and the certified copy of a rule shall also and in the same degree be prima facie evidence in all courts and proceedings.

AB677,15 Section 15. DCF 54.02 (3) (d) 1. of the administrative code is amended to read:

AB677,8,10 DCF 54.02 (3) (d) 1. At least 3 weeks 30 days prior to the expiration continuation date of the current licensing license.

AB677,16 Section 16. Ch. DCF 110 of the administrative code is repealed.

AB677,17 Section 17. Ch. DCF 121 of the administrative code is repealed.

AB677,18 Section 18. DCF 201.02 (2m) of the administrative code is amended to read:

AB677,8,19 DCF 201.02 (2m) "Certification agency" means the department in a county having a population of 500,000 750,000 or more, a county department of social services established under s. 46.22, Stats., a county department of human services established under s. 46.23, Stats., a tribal agency, or any agency that has a contract contracts with the department any of those entities to certify child care providers under s. 48.651, Stats., and ch. DCF 202 in a particular county or tribal area.

AB677,19 Section 19. DCF 202.01 (2) of the administrative code is amended to read:

AB677,8,25 DCF 202.01 (2) Applicability. This chapter applies to county and tribal certification agencies and to all providers of child care who receive reimbursement with state or federal child care funds and who are not required to be licensed under s. 48.65, Stats., including providers of child care for 1 to 3 children, providers of child care for a child in the child's home, and providers of child care for school-age children.

AB677,20 Section 20. DCF 202.02 (1) of the administrative code is repealed.

AB677,21 Section 21. DCF 202.02 (1s) of the administrative code is created to read:

AB677,9,7 DCF 202.02 (1s) "Certification agency" means the department in a county having a population of 750,000 or more, a county department of social services established under s. 46.22, Stats., a county department of human services established under s. 46.23, Stats., a tribal agency, or any agency that contracts with any of those entities to certify child care operators under s. 48.651, Stats.

AB677,22 Section 22. DCF 202.02 (2) of the administrative code is amended to read:

AB677,9,12 DCF 202.02 (2) "Certified child care home" or "home" means the residence in which the certified child care operator provides care of children and which meets the standards under s. DCF 202.08 for reimbursement of care by county or tribal certification agencies.

AB677,23 Section 23. DCF 202.02 (3h) of the administrative code is amended to read:

AB677,9,17 DCF 202.02 (3h) "Child care certification worker" means a person employed by a county, a governing body of a federally-recognized American Indian tribe, or an agency under contract with a county or tribe whose duties include determination of eligibility for child care certification.

AB677,24 Section 24. DCF 202.02 (4) of the administrative code is repealed.

AB677,25 Section 25. DCF 202.04 (3) (a) of the administrative code is amended to read:

AB677,9,23 DCF 202.04 (3) (a) Form. Application for certification shall be made on a form available from the county or tribal certification agency in the county or tribal territory where the child care is provided. The applicant shall submit the completed form to that county or tribal certification agency.

AB677,26 Section 26. DCF 202.04 (3) (d) of the administrative code is amended to read:

AB677,10,2 DCF 202.04 (3) (d) Compliance with standards and certification. The county or tribal certification agency shall process all certification applications as follows:

AB677,10,5 1. If the application is for certification under sub. (2) (a), the county or tribal certification agency shall review the application for compliance with standards under s. DCF 202.08 prior to issuing a certificate.

AB677,10,11 2. If the application is for certification under sub. (2) (b), the county or tribal certification agency shall refer the application to a licensing representative in the department regional office. The licensing representative shall determine whether the applicant is in compliance with all standards under s. DCF 202.09 and report back to the county or tribal certification agency. The county or tribal certification agency may issue a certificate based on the licensing representative's report.

AB677,27 Section 27. DCF 202.04 (3) (e) (intro.) of the administrative code is amended to read:

AB677,10,20 DCF 202.04 (3) (e) Approval. (intro.) Within 60 days after receiving a completed application for certification or recertification and satisfactory investigation and determination that the applicant is fit, the county or tribal certification agency shall either approve the application and issue a certificate or deny the application. Fit "Fit" means the applicant displays the capacity to successfully nurture and care for children and includes consideration of any of the following:

AB677,28 Section 28. DCF 202.04 (3) (f) of the administrative code is amended to read:

AB677,10,24 DCF 202.04 (3) (f) The county or tribal certification agency may backdate a certificate of approval to the date that the county or tribal certification agency received the applicant's completed application for certification.

AB677,29 Section 29. DCF 202.04 (4) (a) of the administrative code is amended to read:

AB677,11,5 DCF 202.04 (4) (a) A county or tribal certification agency may charge a fee for family child care certification not to exceed 150 percent of the licensing fee for a family child care center that provides care and supervision for 4 to 8 children, under s. 48.65 (3) (a), Stats., plus the costs of criminal record checks required under s. 48.685, Stats.

AB677,30 Section 30. DCF 202.04 (4) (b) of the administrative code is amended to read:

AB677,11,10 DCF 202.04 (4) (b) The county or tribal certification agency may charge a fee for school-age child care certification not to exceed the licensing fee for a group child care center that provides care and supervision for 9 or more children under s. 48.65 (3) (a), Stats., plus the costs of criminal record checks required under s. 48.685, Stats.

AB677,31 Section 31. DCF 202.04 (5) (intro.) of the administrative code is amended to read:

AB677,11,15 DCF 202.04 (5) Categories of family certification. (intro.) Certification of a provider an operator by a county or tribal certification agency shall be Level I (regular) or Level II (provisional) as follows:

AB677,32 Section 32. DCF 202.04 (6) (a) of the administrative code is amended to read:

AB677,11,19 DCF 202.04 (6) (a) The county or tribal certification agency responsible for certification of a provider an operator shall be determined by the geographic area in which the child care is provided.