Fax: 608-267-3241
The deadline for submitting comments is 4:30 p.m., on Friday, August 17, 2006.
Analysis prepared by the Dept. of Health and Family Services
The
Department of Commerce has authority related to the design and construction of public pools and water attractions, including plan approval and supervision of construction. When a facility has been properly designed and built, the Department of Health and Family Services (DHFS) then reviews the pool for operation, safety and maintenance and gives the pool a permit to operate if all conditions of ch.
HFS 172 are met.
DHFS proposes revisions to ch.
HFS 172 based on recent scientific research and extensive input from pool designers and operators. The rule will generally not have an effect on standard rectangular pools and whirlpools that have not made changes resulting in increased risk. Waterslides that were previously regulated by the Department of Commerce, are included in these rule revisions, requiring permitting, either separately or as a pool appurtenance, and annual inspection by DHFS for operation and safety. A certified structural engineer will be required to evaluate the physical condition of the slide every 5 years for bolt degradation and physical stress load capabilities.
The rule also proposes changes related to lifeguard and attendant staffing, to add flexibility in these plans.
Chapter
HFS 172, Wis. Adm. Code, is proposed to correspond to the recent changes made by the Department of Commerce in ch.
Comm 90, Wis. Adm. Code.
The Certified Pool Operator (CPO) requirement is proposed only for operators of water attractions. Traditional pools used for swimming, diving, wading, relaxation, or therapy would not require certified operators. Water attractions include activity pools, leisure rivers, plunge pools, water slides, vanishing edge pools, vortex pools, and wave pools. CPO training and registration can be obtained through two national organizations, and the Department will evaluate other organizations upon request. Currently, there are 4000 licensed pools in WI; over 50% are managed by a CPO, including nearly all water attractions. Thus, the requirement to have a CPO will have minimal impact, as the industry already recognizes the importance of and has trained operators accordingly.
Effect on Small Business (Initial Regulatory Flexibility Analysis)
Since the last revision to ch.
HFS 172 in 1989, the water recreation industry has changed significantly. The newly revised code addresses many pool types, and is designed to allow sufficient flexibility for the development of new types of water attractions in the future. Also, as of May 2004, pool and water slides, formerly inspected by the Department of Commerce, will now fall under the purview of DHFS. A Memorandum of Understanding is being developed between the Department of Commerce and DHFS to ensure ongoing seamless approval and inspection of pool slides. The new rule provisions also address additional appurtenances such as climbing and walking features.
These code provision changes should have a minimal impact on small business. The water recreation industry and the operators of small businesses with pools were well represented on the advisory committee, and consensus was obtained before these final rule changes were proposed.
This rule revision will not impose significant increases in licensing and operating fees. 90% of the 4,000 pools in Wisconsin will not be affected by these revisions. The 10% of pools that will be affected include the largest facilities, most of which already meet the CPO and life guarding requirements, and potentially include poorly or illegally operated pools.
The following issues from the revision of ch.
HFS 172 may potentially affect small business operators:
• Lifeguard requirements
• CPO requirements
• Fees for inspections, pre-inspections, re-inspections, and operating without a license
• Lifeguards: There are nearly 4,000 licensed individual pools in Wisconsin, but only half of those pool facilities include 2 or more pools. DHFS has no current definitive breakdown of the number of facilities the new lifeguarding requirements would affect, but estimates that perhaps 200 to 300 facilities will fall under the provisions of this rule, and most of these facilities are already in full compliance. These rule revisions alter the codified lifeguard requirements, but are not necessarily more stringent. There will be ongoing costs related to the turnover in lifeguard positions, but water attraction operators build lifeguard costs into their business plans. Labor and training costs are detailed below.
• Revenue analysis of lifeguard staffing plans: The range of revenues regarding pool operations is vast. Many pools show no direct income; e.g., hotels or apartment complexes that do not charge for admission to the pool. Nor is there a definable difference in occupancy rates between properties with a pool versus properties without. Alternatively, there are large water attractions in Wisconsin that generate millions of dollars in revenue from their extensive water attractions.
• While 98% of pool operators qualify as small businesses, the biggest 5% of pool operators have facilities requiring life guarding and therefore the majority of operators will not be affected by these rule changes, as these facilities are already in compliance. Moderately sized hotels have recently begun expanding their pools by adding slides, interactive play features, etc. These facilities will feel the impacts of the rules the most, because they are approaching the line distinguishing a public pools from a water attraction. These facilities will need to hire staff members to supervise their pools and either hire already certified lifeguards or train existing staff. DHFS estimates 20 hotels per year would fall into this category.
Costs to agencies: There is no additional cost to state or local agencies related to meeting the lifeguard requirements.
DHFS will absorb minimal costs associated with training inspectors to properly inspect water slides. Each inspection of pool slides should take no more than 20 to 30 additional minutes while the inspector is already present.
• Certified Pool Operator (CPO) Requirements: Wisconsin has a large pool of certified pool operators, and regularly adds more. From April 2001 to April 2006, 2041 persons graduated from Wisconsin Certified Pool Operator courses. Thus, the industry should feel little impact from these new rule provisions, as most facilities that need a CPO either already have a CPO or can choose from the pool of qualified individuals.
• Inspection, Pre-inspection and Re-inspection fees: The addition of pre-inspection and re-inspection fees, as well as higher fees associated with waterslide inspections may have an economic impact related to this rule. A pre-inspection is an examination of the facility prior to the facility's opening to ensure compliance with applicable statutes and administrative rules. Re-inspections occur when a facility presents a potential hazard to the general public if conditions are not corrected, and therefore an additional inspection is necessary.
• Water slide inspection fees: DHFS follows a system of rating, inspecting, and charging establishments according to the relative risk related to and the complexity of the operation. Accordingly, a revised fee structure has been created with the following changes:
S Traditional pool or hot tub
|
no change
|
S Water attraction without slides
|
plus $25 annually
|
S Water attraction with 1 or 2 slides
|
plus $100 annually
|
S Additional water slides
|
plus $150 annually
|
S Additional pool slides (smaller)
|
plus $50 annually
|
DHFS estimates there are 400 water attractions without slides, 200 with 1 or 2 slides, an additional 20 water slides, and an additional 20 pool slides. Increased revenue to DHFS under the new rule is estimated to be:
400 * $25 = $10,000
200 * $100 = $20,000
20 * $150 = $3,000
20 * $50 = $1,000
Total revenue increase = $34,000
• Operating without a license: A fee equal to the annual licensing fee has been added to the rule for facilities found to be purposefully operating without a license. This fee will not apply to someone who is merely late in renewing, or who inadvertently misplaces the fee notice.
Benefits of the code revisions:
Pool operators understand the need to keep the public safe, and the goal of keeping their operations open. These administrative rule revisions address both of those issues.
• Serious but flexible lifeguard plans will help pool operators keep their operations safe.
• A Certified Pool Operator is an expert at maintaining water quality and pool safety, establishing policies and procedures to provide a constant safe environment, and training staff. Certified Pool Operators are also trained in monitoring and testing pool water, in order to maintain proper pool chemical balances.
• The test kit reagent required in these rule revisions is less expensive than kits currently used. Since pools are tested up to 4 or more times per day, over time, this will mean a considerable savings to the industry.
• The new fees require services to be paid for by the operators who require the services rather than by dividing them among all operators.
Operations that are built or redesigned so that pools will be direct sources of income will face additional training and labor costs as outlined above. Most pools in Wisconsin are simple swimming pools or spas designed and operated as an amenity to lodging. These operations will feel little or no impact from the proposed revisions.
Fiscal estimate
The DHFS proposes to repeal and re-establish HFS 172 regulating the operation and maintenance of public pools and water attractions. Presently, the DHFS or agent local health departments are required by statute to perform a pre-inspection - a detailed examination of a new public pool or water attraction to ensure administrative code compliance - prior to issuing a license. The proposed changes in this rule would establish a pre-inspection fee to recover the program costs associated with the pre-inspection. The DHFS also proposes to establish fees for re-inspection of facilities to recover costs associated with facilities that are found to have significant violations of administrative code which would require a follow-up inspection. The proposed rule changes also incorporate the transfer of responsibility for the routine safety inspection of waterslides from the Department of Commerce to the Department of Health and Family Services or agent local public health departments and include fees to recover the costs associated with these inspections. The proposed fees are scaled to the complexity of the facility to reflect the amount of time and cost associated with the inspection. It is estimated that the fee changes described above will result in approximately $100,000 additional program revenue to the DHFS annually.
The proposed rule changes would require additional responsibilities of the local agent public health departments. Staff would be required to verify lifeguard staffing plans for public pools and water attractions, and inspect waterslides within their jurisdiction. Local agent public health departments are able to set annual license fees to recover the costs of these additional responsibilities.
It is estimated that total annual costs to the industry for the new pre-inspection fees for approximately 200 to 400 newly constructed facilities and facilities changing ownership would be $50,000 to $60,000. It is estimated that 100 to 200 facilities will require re-inspections annually due to significant compliance problems resulting in annual costs to the industry of $7,500 to $15,000. The proposed pre-inspection and reinspection fees will not impact existing and compliant public pools and water attractions. An estimated 200 new facilities with water or pool slides will apply for permits and be charged fees of between $50 to $150, for a total estimated cost to the industry of $20,000 annually. Total charges to the industry from permit fees, pre-inspection fees, and re-inspection fees are estimated to be approximately $100,000 annually.
There will be fiscal impacts to existing public pools and water attractions associated with proposed new health and safety operational requirements. Facilities may require an additional lifeguard or attendant. It is difficult to estimate the number of facilities impacted by this proposed change; however it is estimated that only about 200 to 300 of the 4,000 licensed individual facilities in Wisconsin may be affected and most of those are likely already in full compliance. Additionally, the rule proposes that water attractions employ a certified pool operator. While most existing water attractions are already in compliance with this proposed change, it is estimated that approximately 20 new or expanded facilities will be constructed annually.
Document Copies
A copy of the full text of the rules and the full text of the fiscal estimate, and other documents associated with this rulemaking may be obtained, at no charge, from the Wisconsin Administrative Rules website at
http://adminrules.wisconsin.gov or by contacting:
Tracynda Davis
1 W. Wilson Street, Room 150
Madison, WI 53702
Phone: 608-266-8924
Fax: 608-267-3241
Small Business Regulatory Review Coordinator
For matters or comments concerning a rule's impact on small businesses, contact:
Notice of Hearing
Insurance
NOTICE IS HEREBY GIVEN that pursuant to the authority granted under s.
601.41(3), Stats., and the procedures set forth in under s.
227.18, Stats., OCI will hold a public hearing to consider the adoption of the attached proposed rulemaking order affecting Section
Ins , Wis. Adm. Code, relating to defined network plans, preferred provider plans, limited service health organizations and limited scope plans and affecting small businesses.
Hearing Information
Date: August 2, 2006
Time: 1:30 p.m., or as soon thereafter as the
matter may be reached
Place: OCI, Room 227
125 South Webster Street
2nd Floor
Madison, WI
Written comments
Written comments can be mailed to:
Julie Walsh
Legal Unit - OCI Rule Comment for Rule Ins
Office of the Commissioner of Insurance
PO Box 7873
Madison WI 53707-7873
Written comments can be hand delivered to:
Julie Walsh
Legal Unit - OCI Rule Comment for Rule Ins
Office of the Commissioner of Insurance
125 South Webster St – 2nd Floor
Madison WI 53702
Comments can be emailed to:
Julie Walsh
Comments submitted through the Wisconsin Administrative Rule website at: http://adminrules. wisconsin.gov on the proposed rule will be considered.
The deadline for submitting comments is 4:00 p.m. on the 8th day after the date for the hearing stated in this Notice of Hearing.
Copy of rule and contact person
A copy of the full text of the proposed rule changes, analysis and fiscal estimate may be obtained from the OCI internet WEB site at
http://oci.wi.gov/ocirules.htm or by contacting Inger Williams, Services Section, OCI, at:
Analysis prepared by the Office of the Commissioner of Insurance (OCI)
The Commissioner of Insurance is authorized to promulgate rules under ss.
601.41 and
609.20, Stats. Section
609.20, Stats., permits the Commissioner to promulgate rules relating to preferred provider plans and defined network plans in order to ensure enrollee access to health care services and ensure continuity of health care while recognizing the differences between preferred provider plans and defined network plans.
4. Related Statutes or rules: There are no related statutes or rules.
Plain language analysis and summary
The proposed rule:
1) Eliminates the term “limited scope plan" from provisions governing defined network and preferred provider plans. The commissioner's intent is to eliminate the application to limited scope plans of certain rules promulgated in
Clearinghouse Rule 05-059.
2) Changes the provision governing improper utilization practices so as prohibit improper practices but not deem the insurer a defined network plan.
3) Eliminates specific requirements relating to network location, hours, waiting times and availability of after hours care but retains the requirement that access must be reasonably prompt consistent with normal practices and standards in the area.
4) Makes it clear that coverage of emergency medical services at in-network cost sharing is not required after the point that the provider has met its obligation to treat the enrollee under federal law.
Comparison with federal regulation
