NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Veterinary Examining Board in ss.
15.08 (5) (b),
227.11 (2), and
453.03, Stats., and interpreting Ch.
453, Stats., the Veterinary Examining Board will hold a public hearing at the time and place indicated below to consider an order to create s.
VE 7.02 (5) (d) relating to the delegation of veterinary medical services to unlicensed assistants.
Hearing Date, Time and Location
Date: November 12, 2003
Time: 11:30 A.M.
Location: 1400 East Washington Avenue
Room 179A
Madison, Wisconsin
Appearances at the Hearing
Interested persons are invited to present information at the hearing. Persons appearing may make an oral presentation but are urged to submit facts, opinions and argument in writing as well. Facts, opinions and argument may also be submitted in writing without a personal appearance by mail addressed to the Department of Regulation and Licensing, Office of Administrative Rules, P.O. Box 8935, Madison, Wisconsin 53708. Written comments must be received by November 30, 2003, to be included in the record of rule-making proceedings.
Analysis Prepared by the Department of Regulation and Licensing.
Statutes interpreted: Chapter
453, Stats.
Persons licensed to practice chiropractic or physical therapy are frequently providing those services to animals – often without referral or supervision by a licensed veterinarian. Additionally, veterinarians are often asked by clients to refer animals to chiropractors or physical therapists for care. Under current rules, those services may be delegated under immediate on-premises supervision of a veterinarian, which means that the veterinarian must either stand by where the animal is kept while the services are provided, or that the animals are brought to the veterinary clinic. The former alternative is expensive and wasteful. The latter alternative is difficult or impossible to accomplish in the case, for example, of an equine patient. The proposed rule would legitimize what is already occurring.
Text of Rule
SECTION 1. VE 7.02 (5) (d) is created to read:
VE 7.02 (5) (d) Medical services involving muscular or skeletal manipulation provided there is a written and signed protocol incorporating the following elements:
1. A statement that records of the intervention shall be kept in the patient's permanent file maintained by the delegating veterinarian;
2. A statement that the unlicensed provider is or is not covered by liability insurance;
3. Length and number of treatments;
4. Therapy limitations;
5. Location of the premises where the treatment is to be provided;
6. Address and telephone number of the unlicensed provider; and
7. Signatures of the veterinarian, the unlicensed provider and the client.
Fiscal Estimate
The Department of Regulation and Licensing will incur $500 in costs to print and distribute the rule change.
Initial Regulatory Flexibility Analysis
These rules will have no significant economic impact on a substantial number of small businesses, as defined in s.
227.114 (1) (a), Stats.
Notice of Hearing
Workforce Development
(Civil Rights, Chs.
DWD 210 -
225)
NOTICE IS HEREBY GIVEN that pursuant to ss. Sections
111.375 (1) and
230.89 (1), Stats., as affected by
2003 Wisconsin Act 33; s.
230.45 (1e) (d), Stats., as created by
2003 Wisconsin Act 33; and ss.
103.005 (1),
106.50 (1s),
106.52 (2), and
227.11, Stats., the Department of Workforce Development proposes to hold a public hearing to consider changes affecting chs.
DWD 218,
220,
221,
224, and
225, relating to the transfer of Personnel Commission responsibilities to the Equal Rights Division and other revisions to civil rights rules.
Hearing Information
Monday, October 27, 2003 at 1:30 p.m.
GEF 1 Building, Room B103
201 East Washington Avenue
Madison
Visitors to the GEF 1 Building are requested to enter through the left East Washington Avenue door and register with the customer service desk. The entrance is wheelchair accessible via a ramp from the corner of Webster and East Washington.
Interested persons are invited to appear at the hearings and will be afforded the opportunity to make an oral presentation of their positions. Persons making oral presentations are requested to submit their facts, views, and suggested rewording in writing. If you have special needs or circumstances that may make communication or accessibility difficult at the hearings, please call (608) 267-9403 at least 10 days prior to the hearing date. Accommodations such as ASL interpreters, English translators, or materials in audiotape format will be made available on request to the fullest extent possible.
Analysis Prepared by the Department of Workforce Development
Statutes interpreted: Subchapter
II of ch. 111 and subch.
III of ch. 230, Stats., as affected by
2003 Wisconsin Act 33; ss.
16.009 (5),
21.80 (7) (b) 1. or 2., 46.90 (4) (b), 50.07 (3) (b), 101.055 (8), 103.10, and 146.997, Stats., as affected by
2003 Wisconsin Act 33; s.
230.45 (1e), Stats., as created by
2003 Wisconsin Act 33; and ss.
103.10,
106.50,
106.52, and
106.54, Stats.
2003 Wisconsin Act 33 abolishes the Personnel Commission and transfers some of its duties to the Wisconsin Employment Relations Commission (WERC) and some of its duties to the Equal Rights Division (ERD) in the Department of Workforce Development. Duties transferred to WERC include appeal of various personnel decisions affecting state employees, arbitration of state employee grievances, and appeals under the county merit system rules. Duties transferred to ERD include processing complaints based on the following:
• Employment discrimination against state employees based on a protected class.
• Violation of the family and medical leave law affecting state employees.
• Retaliation or discrimination against state employees who provide information on conditions in a long-term care facility to the Board on Aging, information on elder abuse to a county agency or state official, or information related to licensing care and service residential facilities to a state official.
• Discrimination against state employees exercising their rights relating to occupational health and safety.
• Retaliatory discipline against state employee health care workers who report a violation of law or a quality of care standard to a supervisor, officer or director of the health care facility, or professionally-recognized accrediting or standard-setting body.
• Violation of reemployment rights of state employees after national guard, state defense force, or public health emergency service.
• Retaliatory discipline against state employee whistleblowers.
The ERD's duties have previously included processing complaints by nonstate employees for all of the issues listed in the above bullet points except whistleblower protection, which only applies to state employees. Before
2003 Wisconsin Act 33, there was a dual system whereby the Personnel Commission processed complaints on these issues by state employees and the ERD processed complaints by nonstate employees.
2003 Wisconsin Act 33 puts sole responsibility for processing complaints by state employees and nonstate employees in the ERD. The ERD has existing procedures for processing the complaints on the issues that have been within its authority:
• Chapter
DWD 218 applies to employment discrimination based on a protected class.
• Chapter
DWD 225 applies to violations of the family and medical leave law.
• Pursuant to the statutory authorizations for the complaint process on the other issues, they are handled in the same manner as employment discrimination based on a protected class, and the procedures in Chapter
DWD 218 are followed.
2003 Wisconsin Act 33, section
9139, transfers to ERD existing Personnel Commission (PC) rules on duties transferred to ERD and transfers to WERC existing PC rules on duties transferred to WERC. There are 7 PC rules. PC 3, relating to filing appeals, and PC 6, relating to the arbitration option for classification appeals, apply to duties transferred to WERC. PC 2, relating to filing and processing complaints, applies to duties transferred to ERD. PC 1, relating to authorization and general provisions; PC 4, relating to prehearing practice and discovery; PC 5, relating to hearings, decisions, and review; and PC 7, relating to Personnel Commission meetings and records, contain information that applies to duties transferred to both WERC and ERD. This seems to mean that PC 1, 4, 5, and 7 are to be transferred to both WERC and ERD, although these rules also contain information that is relevant only to one agency and not the other.
The department does not believe that adopting the PC rules for duties transferred from the PC is the best way to handle these new responsibilities. The department has well-established procedures for processing complaints against nonstate employers on these same issues (except for whistleblower protection). The department's existing rules can be amended with minor modifications to include complaints filed against state respondents. Adopting the PC rules would result in different procedures for state and nonstate respondents for no logical reason. This dual system would be more difficult to administer and would be confusing to complainants, many of whom are pro se. Adopting the PC rules would also require significant revising to remove irrelevant language on duties that have been transferred to WERC and obsolete language that relates only to the Personnel Commission. The department's existing rules can be modified to include state respondents much more simply. The department does not believe that repealing the PC rules will harm complainants who have a pending complaint against a state respondent. The differences between the ERD and PC rules do not affect substantive rights; they are all procedural. Confusion resulting in failure to comply with proper procedures would be more likely to affect substantive rights.
The department is repealing the PC rules affecting duties within ERD, amending the existing fair employment rules and family and medical leave rules to include state respondents, and creating new whistleblower protection rules. The fair employment and family and medical leave rules are amended to add a definition of agency; add agencies to the definition of respondent; and provide that state employee parties and witnesses who are interviewed or who appear at pre-hearing conferences, conciliation sessions, or hearings receive their full pay and travel expenses in accordance with the state reimbursement schedule. Witnesses summoned by a subpoena who are not state employees receive witness and mileage fees set forth in s.
814.67 (1) (a) and
(c), Stats., paid by the person issuing the subpoena. A new rule chapter is created to govern complaints filed under the whistleblower law. The new chapter is similar to the procedures used for fair employment, except department orders under the whistleblower law are not appealable to the Labor and Industry Review Commission. Department findings and orders under the whistleblower law are subject to judicial review under chapter 227, Stats.
The major differences between the old PC procedure and the existing and new ERD procedures include the following:
• Answer. Under the ERD rules, respondents respond in writing to the complaint within a time period set by the department or the department issues an initial determination based solely on information supplied by the complainant. A formal answer is required within 21 days after the notice of hearing on the merits following an initial determination of probable cause. Under the PC rules, a formal answer was required within 20 days after service of the complaint.
• Investigation. Under the ERD rules, the department has the power to subpoena persons or documents and seeks cooperation on obtaining other information while investigating. The PC had full discovery authority under chapter 804, Stats., and a party had 30 days to respond.
• State employee investigation waiver. Under s.
230.45 (1m), Stats., a state employee complainant could waive the PC investigation and proceed to hearing.
2003 Wisconsin Act 33 does not affect this provision. The “commission" language in s.
230.45 (1m), Stats., now refers to WERC. Even though s.
230.45 (1m), Stats., now applies to WERC, it still specifically mentions s.
103.10 (12) (b), Stats., relating to the family and medical leave law, which is under the jurisdiction of ERD. The ERD rules allow a state employee to waive the investigation for complaints filed under the family and medical leave law but not any of the other duties transferred from the PC.
• Appeal of initial determination of no probable cause. Under the PC rule and ERD's fair employment and whistleblower rules, the deadline for appealing an initial determination of no probable cause is 30 days. Under ERD's family and medical leave rule, the deadline is 10 days.
• Discovery. Under ERD's fair employment and whistleblower rules, a party seeking discovery directed at a party not represented by legal counsel must notify the party who is not represented and the chief of the hearing section or ALJ at least 10 days before conducting the discovery. All copies of demands for discovery must be filed with the department at the time they are served, and copies of responses and the original transcript of a deposition must be filed with the department. Under ERD's family and medical leave rule, a party must obtain written consent from the ALJ to conduct discovery directed to a complainant not represented by legal counsel. The PC had no special provisions affecting discovery directed to a party not represented by legal counsel.
• State employee witnesses. The PC rules allowed an ALJ to issue a letter to compel the attendance of a state employee witness or the production of documents from a state employee. Under the ERD rules, a subpoena is required.
• Exchange of exhibits and witness lists. Under the PC rules, witness lists and copies of exhibits had to be exchanged at least 3 days before the hearing. Under the ERD rules, they must be exchanged at least 10 days before the hearing.
• Place of hearing. The PC had discretion on the location of the hearing. In fair employment and whistleblower cases, the ERD must hold the hearing in the county where the alleged act of discrimination occurred or another location with the consent of the parties. In family and medical leave cases, the ERD hearing is either in the county of the respondent's principal place of business or the county in which the action prohibited by the law appears to have occurred.
• Proposed decisions. The PC hearing examiners issued proposed decisions with the opportunity for parties to file written objections. The final decision was issued by the Personnel Commissioners. The ERD hearing examiners do not issue proposed decisions.
• Appeal. Orders of the Personnel Commission were subject to judicial review under ch.
227, Stats. Orders of the ERD may be appealed to the Labor and Industrial Review Commission (LIRC) and then circuit court, except family and medical leave cases and whistleblower cases, which are appealable directly to circuit court and not LIRC.
The above changes related to the transfer of Personnel Commission responsibilities to the Equal Rights Division were ordered by emergency rule. In addition, the department proposes the following revisions to the civil rights rules:
• The deadline to amend a complaint absent a finding of good cause is changed from 20 to 45 days before the hearing in the fair employment, fair housing, and public accommodations rules.
• The department may dismiss a portion of a complaint if that portion fails to meet the department's preliminary review that the parties are covered by the relevant law and the complaint states a claim for relief under the fair employment, fair housing, public accommodations, or family and medical leave law. Authority to dismiss the entire complaint already exists.
• The department may dismiss a complaint prior to the investigation if the complainant fails to respond to certified mail from the department within 20 days, the complainant signed a valid release of the claim, or the allegations in the complaint have been previously dismissed by the department or a state or federal court. This dismissal is subject to appeal to an ALJ in the Equal Rights hearing section and further appeal to LIRC. This revision is proposed for the fair employment and fair housing rules.
• The respondent shall mail a copy of the answer to other parties and file a certification of mailing with the department, rather than the department serving the answer on the other parties. This revision is proposed for the fair employment, fair housing, and public accommodations rules.
• Names of witnesses and copies of exhibits must be exchanged with other parties and filed with the division at least 10 days before the hearing. The proposed rule makes service complete upon mailing rather than receipt. It also provides for mandatory, rather than discretionary, exclusion of witnesses and exhibits not identified in a timely fashion, unless good cause is shown. These proposed changes affect the fair employment and fair housing rules.
• An appeal of a preliminary determination dismissing a complaint in a family and medical leave case will heard by an ALJ in the division hearing section. Under the current rule, the division administrator of the Equal Rights Division, or a person assigned by the administrator, receives these appeals.
• The proposed rule makes conciliation discretionary, rather than mandatory, in family and medical leave cases.
Initial Regulatory Flexibility Analysis
The rule changes primarily affect state respondents and individuals filing complaints against state respondents. There are some minor changes that may affect small business but these changes will not have a significant economic impact on these businesses.
Fiscal Impact
The proposed rule changes do not have a fiscal effect on state or local government.
Contact Information
A paper copy may be obtained at no charge by contacting:
Elaine Pridgen
Office of Legal Counsel
Dept. of Workforce Development
201 E. Washington Avenue
P.O. Box 7946
Madison, WI 53707-7946
(608) 267-9403
