Rule-Making Notices (Hearing Notices)

Summary of Factual Data and Analytical Methodologies

The data and methodology for developing these proposed rules were derived from and consisted of incorporating the criteria in s. 560.035 (1), Stats.; incorporating many of the best practices the Department has developed in its current, similar program for certifying minority-owned businesses; soliciting and utilizing input from representatives of the stakeholders who are expected to participate in this program; and reviewing Internet-based sources of related federal, state, and private-sector information.

Supporting Documents Used to Determine Effect on Small Business or in Preparation of an Economic Impact Report

The primary document that was used to determine the effect of the proposed rules on small business was 2005 Wisconsin Act 358. This Act requires the Department to implement a program for certifying woman-owned businesses, and requires the Department to promulgate rules for administering the program. However, this Act does not require these businesses to become certified, and does not create preferences in governmental procurement for these businesses. Consequently, the proposed rules do not require this certification, and do not create procurement preferences.

Effect on Small Business

The proposed rules are not expected to impose a negative effect on small business, because the rules only address applying for, receiving, and maintaining voluntary credentials. This rule does have the potential to enable woman-owned businesses to benefit from additional business opportunities. In recognizing this positive impact, the Department took steps to reduce possible barriers for woman-owned, small businesses as defined in s. 227.114 (1), Stats., by requesting external participation in the draft rule development. The Department organized and solicited the comments from organizations that represent the interests of woman-owned small businesses, and from those who represented supplier-diversification programs. The rule advisory group included the following members and organizations:

Kathy Doyle	Advocap
Renee Walz	Western Dairyland Community Action
Jennifer Ring Mellberg	Wisconsin Women's Business Initiative Corporation
Bill Smith	National Federation of Independent Businesses
Mary Stoltz	Madison Chapter of National Association of Women Business Owners
Beth Nemecek	AmeriPrint Graphics, Inc
Laurie Benson	Inacom, Inc.
Lisa Kleiner	Wood, McNally, Maloney & Peterson, S.C.
Jerry Fulmer	WE Energies
Mary Trimmier	U.S. Small Business Administration
Mildred Hyde Demoze	Milwaukee County Office of Community Business Development Partners

The rule-advisory group had the opportunity to review the rule drafts and provide input through two meetings held at the Department, on July 27 and August 16, 2006.

Small businesses' access to information about the woman-owned business enterprise (WBE) certification program will determine the level of participation by the woman-owned businesses that meet the small business definition contained in section 227.114 (1). The Department plans to issue a statewide press release announcing the availability of the WBE certification, so that small businesses which are not members of associations or business-related organizations will be aware of the new WBE certification program. The Department also plans to promote the availability of the woman-owned business certification through the Department's network of entrepreneurial business-assistance partners, numerous business affiliations and industries, and Department-sponsored events that cater to small business. A user-friendly WBE fact sheet is expected to be available through a Department WBE certification Web site, and training sessions may be offered, to assist small businesses in understanding the requirements and the application process.

Agency Contact Information

Ruby Brooks, Wisconsin Department of Commerce, Bureau of Minority Business Development, P.O. Box 7970, Madison, WI, 53707-7970; telephone [phone]; e-mail [e-mail].

Copy of Rules

The proposed rules and an analysis of the rules are available on the Internet, by entering “Comm 104" in the search engine at the following Web site: http://adminrules.wisconsin.gov. Paper copies may be obtained without cost from Anne Thundercloud at the Department of Commerce, Bureau of Minority Business Development, P.O. Box 7970, Madison, WI 53707, or at [e-mail], or at telephone [phone] or [phone] (TTY). Copies will also be available at the public hearing.

Environmental Analysis

Notice is hereby given that the Department has considered the environmental impact of the proposed rules. In accordance with ch. Comm 1, the proposed rules are a Type III action. A Type III action normally does not have the potential to cause significant environmental effects and normally does not involve unresolved conflicts in the use of available resources. The Department has reviewed these rules and finds no reason to believe that any unusual conditions exist. At this time, the Department has issued this notice to serve as a finding of no significant impact.

Initial Regulatory Flexibility Analysis

1. Types of small businesses that will be affected by the rules.

Businesses that qualify and want to become certified as a woman-owned business.

2. Reporting, bookkeeping and other procedures required for compliance with the rules.

Each applicant must (1) complete and submit a Department-supplied application, (2) subsequently notify the Department of any changes to the information contained in the application, and (3) complete and submit a Department-supplied application for recertification, for continuation of the certification beyond each three-year certification period.

3. Types of professional skills necessary for compliance with the rules.

No new professional skills would be necessary for compliance with the proposed rules.

4. Rules have a significant economic impact on small businesses. No.

The small business regulatory coordinator for the Department of Commerce is Carol Dunn, who may be contacted at telephone [phone], or by e-mail at [e-mail].

Fiscal Estimate

The appropriation, as created by 2005 Wisconsin Act 358, will result in revenues that will offset the Department's costs in administering this new program.

The Department estimates that 1200 businesses will maintain the credential under this program, at an annual fee of $50.

The proposed rules are not expected to impose any significant, mandated costs on the private sector, because the rules only address applying for, receiving and maintaining voluntary credentials.

Notice of Hearing

Optometry Examining Board

[CR 06-116]

NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Optometry Examining Board in ss. 15.08 (5) (b) and 227.11 (2), Stats., and s. 449.06 (2m), Stats., as created by 2005 Wisconsin Act 297, and interpreting ss. 449.02, 449.04 (1), 449.055, 449.06 (1) and (2m), 449.08 (1), 449.17 (1), (1m) and (2), and 449.18 (1), (2), (5) and (6), Stats., the Optometry Examining Board will hold a public hearing at the time and place indicated below to consider an order to repeal Opt 1.02 (3), 3.01, the Note following Opt 4.02 (2), 6.02 (2) and (5), and 6.05 to 6.08; to renumber Opt 6.02 (1); to renumber and amend Opt 5.12; to amend Opt 1.01, 1.02 (intro.), 3.02 (1) (intro.), the second Note following 3.02 (1) (a), the Note following 3.02 (1) (c), 3.03, 3.09, ch. Opt 4 (title), 4.01 (intro.), (1) to (5) and (7), 4.02 (1) (intro.) and (c), 4.03 (1) and (2) (intro.), 5.12 (title), ch. Opt 6 (title), 6.01, 6.02 (6), ch. Opt 7 (title), 7.03 (title) and 7.03, and 7.05 (1) and (2) (intro.); to repeal and recreate Opt 1.02 (6), 1.03, 6.02 (3), 6.03 and 6.04; and to create Opt 4.01 (8) and (9), 5.02 (6), 5.12 (1), (2) and (3), 6.02 (1) and ch. Opt 8, relating to examinations, endorsement, delegation, TPA/DPA, renewal and continuing education relating to optometrists.

Hearing Date, Time and Location

Date:   December 7, 2006

Time:   9:15 a.m.

Location:   1400 East Washington Avenue

(Enter at 55 N Dickinson Street)

  Room 121C

  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 Legal Counsel, P.O. Box 8935, Madison, Wisconsin 53708. Written comments must be received by December 7, 2006, to be included in the record of rule-making proceedings.

Analysis prepared by the Department of Regulation and Licensing

Statutes interpreted: Sections 449.02, (3), 449.04 (1), 449.055, 449.06 (1) and (2m), 449.08 (1), 449.17 (1), (1m) and (2), and 449.18 (1), (2), (5) and (6), Stats.

Statutes authorizing promulgation: Sections 15.08 (5) (b) and 227.11 (2), Stats., and s. 449.06 (2m), Stats., as created by 2005 Wisconsin Act 297.

Explanation of agency authority: Chapter 449, Stats., and 2005 Wisconsin Act 297, give authority to the Optometry Examining Board to promulgate rules relating to the issuance and renewal of licenses; the issuance of certificates to use diagnostic and therapeutic pharmaceutical agents; the issuance of licenses by endorsement; continuing education requirements and grounds for discipline of optometrists.

Related statute or rule: Chapter RL 10 which identifies the diagnostic and therapeutic pharmaceutical agents that have been approved by the Department of Regulation and Licensing for use by optometrists.

Plain language analysis: SECTIONS 1 and 2. The current rules include a reference in ss. Opt 1.01 and 1.02 to chs. Opt 1 to 7. These sections are being amended to clarify that these provisions also apply to ch. Opt 8.

SECTION 3. In this section, the board repeals the definition of “immediate supervision."

SECTION 4. In this section the board creates a definition of “supervision." The board also repeals the definition of “routine visual screening" that is found in s. Opt 1.02 (6).

SECTION 5. In this section, the board repeals and recreates s. Opt 1.03, which relates to delegation and supervision of unlicensed persons. The rule clarifies that, with 2 exceptions, optometrists may direct unlicensed persons working under their supervision to perform any act that is within the scope of the practice of optometry.

SECTION 6. Section Opt 3.01, which relates to fixing a time and place for examinations, is being repealed because the examinations are now administered on-line.

SECTION 7. Section Opt 3.02 (1) is being amended to clarify that applications for examination are no longer required to be submitted 30 days prior to the date of the examination, and to make minor and technical changes to the examination procedures. These changes are required primarily because examinations are now administered on-line.

SECTIONS 8 and 9. These sections amend Notes to identify where applications may be obtained.

SECTIONS 10 and 11. These sections make minor and technical revisions to the rules that relate to application and examination procedures.

SECTIONS 12-17. These sections amend ch. Opt 4 to incorporate the provisions for endorsement that are contained in 2005 Wisconsin Act 297. Those provisions require applicants to be “in good standing;" to have practiced optometry in another state that has substantially similar requirements, and to have completed the educational course work required to use diagnostic and therapeutic pharmaceutical agents. In addition, other minor and technical revisions relating to application and examination procedures are being made to the rules.

SECTION 18. Section Opt 5.02 (6) is being created to define “signature" to mean “a handwritten mark or an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record."

SECTIONS 19-21. Section Opt 5.12, which relates to supervision of unlicensed persons who perform routine vision screenings, is being repealed and recreated to state that it shall be unprofessional conduct for an optometrist to do any of the following:

(1) Delegate the prescribing of pharmaceutical agents, or the removal of foreign bodies from an eye or from an appendage to the eye, to an unlicensed person.

(2) Delegate the performance of tasks related to the practice of optometry to an unlicensed person that exceeds that person's competence, education, training or experience.

(3) Fail to exercise supervision over an unlicensed person, as provided under s. Opt 1.03.

SECTIONS 22-31. These sections amend, repeal, and repeal and recreate ch. Opt 6 to incorporate the substantial changes made by 2005 Wisconsin Act 297 relating to the use of diagnostic and therapeutic pharmaceutical agents and removal of superficial foreign bodies from an eye or from an appendage to the eye. Chapter Opt 6, as recreated, incorporates the procedures for the issuance of certificates to use diagnostic and pharmaceutical agents; the education and examination requirements that must be completed in order for an optometrist to obtain a certificate, and the permitted use of diagnostic and therapeutic pharmaceutical agents. Some of the primary changes made to ch. 449, Stats., by 2005 Wisconsin Act 297, which are incorporated into ch. Opt 6 or clarified in ch. Opt 6, include the following:

Section 449.17 – DPA Certificates. As a result of the revisions to the statutes, the Department of Regulation and Licensing will no longer grant DPA certificates. The board is now authorized to grant DPA certificates, but only to optometrists who were licensed by the board before August 1, 2006. Optometrists licensed by the board on or after August 1, 2006, will automatically be authorized to use diagnostic pharmaceutical agents (DPA) without having to obtain a separate DPA certificate. Note that the DPA certificates granted by the department prior to August 1, 2006, will remain in effect while the optometrist's license remains in effect unless suspended or revoked by the board. [Wis. Stats. s. 449.17 (1m) (d).] Note also that the Secretary of the department retains the authority to promulgate rules specifying the topical ocular diagnostic pharmaceutical agents that may be used by optometrists. See also Wis. Adm. Code ch. RL 10.]

Section 449.18 – TPA Certificates. As a result of the revisions to the statutes, the board retains the authority to grant TPA certificates, but only to optometrists who were licensed by the board before August 1, 2006. Optometrists licensed by the board on or after August 1, 2006, will automatically be authorized to use therapeutic pharmaceutical agents (TPA) without having to obtain a separate TPA certificate. Note that the TPA certificates granted by the board prior to August 1, 2006, will remain in effect while the optometrist's license remains in effect unless suspended or revoked by the board. [Wis. Stats. s. 449.18 (2) (e).] Note also that the Secretary of the department retains the authority to promulgate rules specifying the therapeutic pharmaceutical agents that may or may not be used by optometrists. [See also Wis. Adm. Code ch. RL 10.]

Section 449.06 – Renewal; continuing education. As a result of the revisions to the statutes, all optometrists will be required to complete 30 hours of continuing education. Note also that, as stated above, DPA and TPA certificates will not expire; therefore; the certificates will not need to be renewed.

SECTION 31. This section repeals ss. Opt 6.05 to 6.08, which relate to the approval of continuing education courses and the renewal of TPA certificates. The provisions relating to continuing education are being incorporated into ch. Opt 8. Under 2005 Wisconsin Act 297, TPA certificates no longer expire; therefore, optometrists are not required to renew them.

SECTIONS 32-34. These sections amend ss. Opt 7.03 and 7.05 to clarify that all optometrists must now complete the required continuing education course work in order to renew their registrations. Previously, only optometrists who held TPA certificates were required to complete continuing education course work.

SECTION 35. Chapter Opt 8 is being created to incorporate the continuing education requirements that optometrists must complete in order to renew their registrations. As a result of the changes made to ch. 449, Stats., by 2005 Wisconsin Act 297, all optometrists will now be required to complete 30 hours of continuing education. Previously, only optometrists who were certified to use diagnostic pharmaceutical agents (DPA) and therapeutic pharmaceutical agents (TPA) were required to complete continuing education course work.

Section Opt 8.01 creates definitions for “biennium," “COPE" and “hardship."

Section Opt 8.02 identifies the course work that optometrists must complete and the procedure that they must follow in order to renew their registrations. The proposed rules require optometrists to complete 30 hours of approved continuing education in each biennial registration period. A minimum of 7 of the 30 hours must be approved glaucoma education. To obtain credit for completion of continuing education hours, optometrists must, at the time of each renewal of their registrations, sign a statement certifying that the course work has been completed. If audited, the optometrists will be required to submit their certificates of attendance issued by each course provider or other evidence of attendance satisfactory to the board. An optometrist who fails to meet the continuing education requirements by the renewal date may not engage in the practice of optometry until his or her registration is renewed under s. Opt 7.05.

Section Opt 8.03 creates the criteria for the approval of continuing education courses, which was previously contained in ch. Opt 6. In general, to apply for approval of a continuing education course, a course provider must submit to the board office an application on forms provided by the department that shall include the title, general description and an outline of the course, the dates, the location, the name and qualifications of the instructor of the course, and the sponsor of the course. The following criteria will be considered in the approval process:

(1) The subject matter of the course pertains to the practice of optometry.

(2) The provider of the continuing education courses agrees to monitor the attendance and furnish a certificate of attendance to each participant. The certificate of attendance shall certify successful completion of the course.

(3) The provider of the course is approved by the board.

(4) The course content and instructional methodologies are approved by the board.

In addition, alternate delivery method continuing education courses such as home-study courses, self-study packages, computer courses, televideo conferencing and other methods may be approved by the board. Finally, a continuing education course approved by the Council on Optometric Practitioner Education (COPE), or sponsored by a state optometric association, the American Optometric Association, the American Academy of Optometry, or an accredited school or college of optometry, which satisfies the criteria established under s. Opt 8.03 (2), shall be approved by the board without receipt of a course approval application from the course provider.

Summary of, and comparison with, existing or proposed federal regulation:

There is no existing or proposed federal regulation.

Comparison with rules in adjacent states:

Illinois:

Illinois's administrative rules relating to the practice are found in Title 68: Professions and Occupations, Chapter VII: Department of Financial and Professional Regulation Part 1320, Optometric Practice Act of 1987. These rules may be found at: http://www.ilga.gov/commission/jcar/admincode.068/06801320sections.html

Iowa:

Iowa's administrative rules relating to the practice of optometry are found in their chapters 179 to 183. These rules may be found at:
http://www.idph.state.ia.us/licensure/laws.asp?board=opt

Michigan:

Michigan's administrative rules relating to the practice of Optometry are found in their sections R. 338.211 to 338.279 (General Rules) and R 338.291 (Ethical and Unprofessional Conduct). There rules may be found at: http://www.state.mi.us/orr/emi/admincode.asp?AdminCode=Single&Admin_Num=33800251&Dpt=CH&RngHigh= and http://www.state.mi.us/orr/emi/admincode.asp?AdminCode=Single&Admin_Num=33800291&Dpt=CH&RngHigh=

Minnesota:

Minnesota's administrative rules relating to the practice of optometry are under their Chapter 6500 and maybe found at: http://www.revisor.leg.state.mn.us/arule/6500/

Summary of factual data and analytical methodologies:

The Department of Regulation and Licensing is assisting in drafting of the board's rules as per recent amendments of ch. 449, Stats. The board's professional and public members provided their input and guidance into the rule drafting process.

The department relied on information provided by the Wisconsin Association of Optometrists (WOA) regarding their membership and projected costs of continuing education. For licensee counts, the numbers were derived from the credentialing database of the Department of Regulation and Licensing in September of 2006.

Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report: