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Statutes Interpreted: ss. 92.05, 92.14, 94.72, 95.197, 95.71, 97.20, 97.22, 97.41, 98.03, 98.18, 93.50, and 895.59, Stats.
DATCP has broad authority under 93.07(1) to adopt rules needed to implement laws under its jurisdiction. Under s. 895.59, Stats. (created by 2003 Wisconsin Act 145), DATCP is required to adopt rules describing the discretion that it may exercise in enforcement of its regulations against small businesses. DATCP has specific authority, under the provisions cited above, to adopt rules related to each of the topics addressed by this rule.
Rule Content
Small business enforcement discretion: Under s. 895.59, Stats. (created by 2003 Wisconsin Act 145), state agencies are required to adopt rules describing the discretion they may exercise when enforcing regulations against small businesses. This rule describes the discretion that DATCP may exercise when enforcing regulations against small businesses. DATCP already exercises enforcement discretion, as described in this rule.
Technical changes to current rules.
This rule also makes minor technical changes to a number of rules administered by the DATCP. This rule does all of the following:
Conforms fertilizer tonnage fee (agricultural chemical cleanup surcharge) to current statute The department is currently charging the (lower) statutory fee, not the obsolete (higher) fee that appears in the current rule (ATCP 40).
Updates technical standards that are incorporated by reference in current commercial feed rules (ATCP 42). The updates refer to the latest edition (2006) of the official publication of the Association of American Feed Control Officials.
Updates current standards for the professional certification of agricultural engineering practitioners. The revised standards address new agricultural engineering practices, and the planning phases of engineering projects. The revisions also make minor changes to job class criteria for some existing practices, reflecting changes in technology and scale of current projects. DATCP coordinated these revisions with the United States Department of Agriculture (NRCS) and county land conservation departments, including practitioners who serve federal, state and county conservation programs.
Clarifies DATCP's meat holding order and condemnation authority (ATCP 55).
Corrects inconsistent rules related to the legal "shelf life" of smoked fish (one rule says 17 days, the other says 21 days). This rule says 21 days.
Changes current dairy plant rules (ATCP 80) to make them consistent with current federal standards. This includes minor technical changes related to pasteurization standards, thermometers and temperature readings, as well as updates to technical standards incorporated by reference (ATCP 80 Appendix). The updates refer to the latest editions of the 3-A Sanitary Standards and Accepted Practices published by the 3-A Sanitary Standards, Inc.
Updates technical standards that are incorporated by reference in current weights and measures rules (ATCP 92). The updates refer to the latest editions (2006) of current weights and measures handbooks published by the National Institute of Standards and Technology.
Clarifies, per current statutes, that local weights and measures inspectors must be civil service employees (conforms rule to current statute).
Eliminates minor obsolete accounting provisions (in ATCP 105) related to the calculation of cigarette "cost" for purposes of the Unfair Sales Act ("minimum markup law").
Clarifies the relationship between DATCP's home improvement code (ATCP 110) and basement waterproofing code (ATCP 111), both of which apply to basement waterproofing services.
Clarifies prohibition against misleading charity claims in coupon book schemes (ATCP 131).
Repeals current rules related to dairy cattle grades (ATCP 158), because the rules are obsolete and no longer used.
Corrects typographical errors and cross-references, eliminates obsolete provisions, conforms rules to current statutes, creates clarifying notes, and makes other non-substantive drafting and organizational changes to current rules.
Pursuant to s. 227.21, Stats., DATCP will request permission from the Attorney General and the Revisor of Statutes to incorporate each updated technical standards by reference.
Fiscal Estimate
DATCP already exercises enforcement discretion, as described in this rule, so the effect will be minimal. Fines and forfeitures are paid to the state school fund, not DATCP. Other provisions of this rule will have no fiscal effect on DATCP or local units of government.
Business Impact
DATCP already exercises enforcement discretion, as described in this rule. The current exercise of discretion prevents unnecessary costs to small businesses. The codification of DATCP's current enforcement policy will not change that policy, or have a major additional impact on business. The other provisions of this rule will have no significant effect on business.
Federal Regulations
Several of the technical changes in this rule will make DATCP rules consistent with current federal standards. Otherwise, there are no existing or proposed federal regulations similar to this rule.
Surrounding State Programs
Surrounding states (Illinois, Indiana, Iowa, Michigan and Minnesota) do not have comparable rules, except that some use comparable technical standards.
Notice of Hearing
Chiropractic Examining Board
NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Chiropractic Examining Board in ss. 15.08 (5) (b) and 227.11 (2), Stats., and interpreting s. 446.04, Stats., the Chiropractic Examining Board will hold a public hearing at the time and place indicated below to consider an order to amend s. Chir 6.02 (6), relating to adequate education prior to application of new therapies and treatment modalities.
Hearing Date, Time and Location
Date: April 27, 2006
Time: 8:15 a.m.
Location: 1400 East Washington Avenue
Room 121A
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 Pamela Haack, Paralegal, Department of Regulation and Licensing, 1400 East Washington Avenue, Room 152, P.O. Box 8935, Madison, Wisconsin 53708-8935, or by email at pamela.haack@drl.state.wi.us. Comments must be received on or before May 11, 2006 to be included in the record of rule-making proceedings.
Statutes interpreted: Section 446.04, Stats.
Statutory authority: Sections 15.08 (5) (b) and 227.11 (2), Stats.
Explanation of agency authority: The Chiropractic Examining Board licenses and regulates the conduct of chiropractors. The board is authorized under ss. 15.08 (5) and (6), 446.02 (1) (b) and 446.02 (2) (b), Stats., to promulgate rules relating to the educational requirements for licensure and the requirements for continuing education of chiropractors and unprofessional conduct.
Related statute or rule: There are no other related statutes or rules other than those listed above.
Plain language analysis: This proposed rule-making order makes changes to reflect the need for chiropractors to receive adequate training, education and experience prior to the introduction, or application, of new therapies and treatment modalities in their chiropractic practice application.
New therapies and treatment modalities, such as cold laser therapy and other potential new high-visibility therapies, are being introduced into the practice of chiropractic treatment on a regular basis. To ensure that these new therapies and treatment modalities being made available by advancements in the field are administered appropriately, and to adequately educate chiropractors on the treatment of their patients, a rule change specifying that the chiropractor should have adequate education and training prior to patient application will be required.
SECTION 1 amends the rules to specify that chiropractors need adequate training, education and experience relating to the use of new therapies and treatment modalities in the chiropractic profession to assure competence prior to application.
Summary of, and comparison with, existing or proposed federal regulation: None.
Comparison with rules in adjacent states:
Illinois:
Illinois's administrative code has no mention specifically of training requirements; however, the conduct of chiropractors is governed under Section 1285.240 Standards (Illinois Admin. Code). Interestingly, the rules governing the conduct of chiropractors are those of the medical profession and treat chiropractors as members of the medical profession (referring to them as chiropractic physicians). The rules do require that chiropractors act in ways that will not harm the public, breaches the physician's responsibility to a patient in accordance to medical standards of practice and not use any equipment on patients that have not been authorized for use in an approved research program pursuant to rules of the Illinois Department of Public Health authorizing research programs or as otherwise expressly authorized by law. More may be found at:
Iowa:
Iowa's administrative code governing conduct has no specific language requiring education prior to the use of a new therapy; however, there are requirements for chiropractors to be competent in their practice. Excerpts from their administrative code are as follows:
45.2 (2) Professional incompetence. Professional incompetence includes, but is not limited to:
a. A substantial lack of knowledge or ability to discharge professional obligations within the scope of practice.
b. A substantial deviation from the standards of learning or skill ordinarily possessed and applied by other chiropractic physicians in the state of Iowa acting in the same or similar circumstances.
c. A failure to exercise the degree of care which is ordinarily exercised by the average chiropractic physician acting in the same or similar circumstances.
d. Failure to conform to the minimal standard of acceptable and prevailing practice of a chiropractic physician in this state.
More may be found at:
Michigan:
Michigan's administrative code relating to rules governing the practice of chiropractic has no specific rules regulating professional conduct. The rules relating to actions against a Michigan chiropractic license holder are covered under Michigan Statutes: Chapter 333.16221 – 16226. More may be found at:
Minnesota:
Minnesota's statutes governing conduct has no specific language requiring education prior to the use of a new therapy; however, there are requirements for chiropractors to be competent in their practice. Excerpts from their administrative code are as follows:
From Minnesota statutes: 148.10 Licenses Revoked; New Licenses.
(11), unprofessional conduct means any unethical, deceptive or deleterious conduct or practice harmful to the public, any departure from or the failure to conform to the minimal standards of acceptable chiropractic practice, or a willful or careless disregard for the health, welfare or safety of patients, in any of which cases proof of actual injury need not be established. Unprofessional conduct shall include, but not be limited to, the following acts of a chiropractor:
(1) gross ignorance of, or incompetence in, the practice of chiropractic
More may be found at:
Summary of factual data and analytical methodologies:
No study resulting in the collection of factual data was used in reference to this rule-making effort. The primary methodology for revising the rule is the board's ongoing analysis and determination that a rules change is necessary.
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report:
The Department of Regulation and Licensing has a small business review advisory committee (SBRAC) consisting of representatives of a variety of small business and geographic locations. This proposed rule was reviewed by the SBRAC and found that the rule would not have a significant economic impact on small business.
This conclusion is supported by an analysis by department staff. Licensed chiropractors are required to follow the Standards of Conduct Rules under ch. Chir 6 of the Wisconsin administrative code. The existing rules prevent licensed chiropractors from performing professional services inconsistent with their training, education or experience. Given the current pace of technological advancement, and the resulting marketing effort targeting practitioners, the existing rules governing professional conduct is amended by the board to clarify education and training requirements of chiropractors prior to application and/or incorporation of new technology-based therapies and treatments into their practice.
The incorporation and use of modern technology has always been and will be a part of patient care; however, the rules governing conduct should keep up with those applications, especially where they relate to existing rules of conduct for the protection of the public.
This proposed rule does not mandate any additional education or training with regards to new technology or treatments, unless chiropractors wish to incorporate those new treatments into their practice.
Anticipated costs incurred by private sector/fiscal estimate: The department finds that this rule has no significant fiscal effect on the private sector.
Fiscal estimate
The proposed rule will have no impact on the department's funds.
Effect on small business
These proposed rules will have no significant economic impact on a substantial number of small businesses, as defined in s. 227.114 (1), Stats. The Department's Regulatory Review Coordinator may be contacted by email at larry.martin@drl.state.wi.us, or by calling (608) 266-8608.
Agency contact
Pamela Haack, Paralegal, Department of Regulation and Licensing, Office of Legal Counsel, 1400 East Washington Avenue, Room 152, P.O. Box 8935, Madison, Wisconsin 53708-8935. Telephone: (608) 266-0495. Email: pamela.haack@drl.state.wi.us.
TEXT OF RULE
SECTION 1. Chir 6.02 (6) is amended to read:
Chir 6.02 (6) Performing professional services inconsistent with training, education or experience. Prior to application to patients of new therapies or treatment modalities, a chiropractor shall obtain adequate and appropriate training and education. Such training and education may be obtained from coursework at an accredited college of chiropractic, or from a board-approved continuing education program or from a program sponsored by an organization listed in s. Chir 5.02 (1) (a).
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