Rule-Making Notices (Hearing Notices)

Thursday, March 15, 2007 at 1:00 p.m.

Room 140-141, DNR Southeast Region Headquarters, 2300 North Dr. Martin Luther King Jr. Dr., Milwaukee, WI

NOTICE IS HEREBY FURTHER GIVEN that pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Robert Eckdale at [phone] or by e-mail to [e-mail] with specific information on your request at least 10 days before the date of the scheduled hearing.

Fiscal Estimate

Impact on the Department: Due to the emission reductions required by the rule, the annual emission fees paid to the Department are affected. An accurate emission reduction estimate is not available at this time, since the rule requires a source specific engineering analysis for determination of emission reductions. In addition, some of the sources affected by this rule would be subject to other rules, such as RACT and CAIR, as well. Those rules, still in development, require emission reductions of one or more of the same air pollutants. These uncertainties make it difficult to estimate the emission reductions resulting from the proposed rule. However, assuming emission reductions typically achievable for the affected sources, the emission reductions and the annual emission fees can be estimated. Assuming that there would be no changes to the fee structure for the air program in the intervening years, the decrease in revenues (based on the reduced tonnage of emissions assumed) would be approximately $900,000 per year in 2014 and after.

Impact on the City of Manitowoc: This rule would impact one local government facility operated by Manitowoc Public Utility (MPU). MPU operates three coal fired boilers at its power plant. One of them, Unit 7, is affected by the BART rule. Depending on the results of the site-specific BART determination, the source may need to be retrofitted with NOx and SO2 control systems. Since the rule requires an extensive evaluation of control technologies, costs and other considerations, the fiscal effect of the rule cannot be accurately estimated at this time. Assuming installation of equipment to attain the maximum level of NOx and SO2 control, the maximum capital and operational costs should not exceed $1.5 million per year starting no later than 2014.

Impact on affected facilities: The proposed BART rule would require emission controls on certain power plants and industrial sources. The vast majority of emissions are from the affected power plants. Depending on the results of the site specific BART determinations, the sources may need to be retrofitted with NOx and SO2 control systems. Since the rule requires an extensive evaluation of control technologies, costs and other considerations, the specific fiscal effect of the rule cannot be accurately estimated at this time. However, assuming installation of equipment to attain the maximum level of NOx and SO2 control, the maximum capital and operational costs should not exceed $270 million per year starting no later than 2014. Additionally, the Department expects the electric utilities to use emission reductions from application of BART controls to comply with CAIR, significantly reducing the cost of CAIR compliance.

It should be noted that the cost impacts on the industrial sources can vary in wide ranges. However, the Department expects the annual costs of air pollution controls for industrial sources to be relatively low compared to the costs for power plants.

The proposed rule and supporting documents, including the fiscal estimate may be reviewed and downloaded and comments electronically submitted at the following Internet site: http://adminrules.wisconsin.gov. (Search this Web site using the Natural Resources Board Order No. AM-04-06.) Written comments on the proposed rule may be submitted via U.S. mail to Mr. Farrokh Ghoreishi, Bureau of Air Management, P.O. Box 7921, Madison, WI 53707 or by e-mail to Mr. Ghoreishi at:
[e-mail]

Comments may be submitted until March 19, 2007. Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearings. If you do not have Internet access, a personal copy of the proposed rule and supporting documents, including the fiscal estimate may be obtained from Robert Eckdale, Bureau of Air Management, P.O. Box 7921, Madison, WI 53707 or by calling [phone].

Notice of Hearings

Workforce Development

(Worker's Compensation)

[CR 07-019]

NOTICE IS HEREBY GIVEN that pursuant to ss. 102.15 (1), 102.16 (2m) (g), and 227.11 (2) (a), Stats., the Department of Workforce Development proposes to hold a public hearing to consider changes affecting chs. DWD 80 and 81, relating to worker's compensation and affecting small businesses.

Hearing Information

Thursday, March 22, 2007

9:00 a.m. to 12:00 noon

The hearing will be conducted at the following 6 locations simultaneously using video conference technology:

Madison

UW-Extension

Pyle Center, Room 235

702 Langdon Street

Eau Claire

State Office Building, Room 139

718 W. Clairemont Avenue

Green Bay

State Office Building, Room 618

200 N. Jefferson Street

La Crosse

State Office building, Room B29

3550 Mormon coulee Road

Milwaukee

State Office Building, Room 98

819 N. 6th Street

Superior

Department of Transportation Building

Conference Room

1701 N. 4th Street

Interested persons are invited to appear at the hearing 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 regarding communication or accessibility at the hearing, please call [phone] 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

Statutory authority: Sections 102.15 (1), 102.16 (2m) (g), and 227.11 (2) (a), Stats.

Statutes interpreted: Sections 102.11 (1) (f), 102.13 (2) (c), 102.16 (1), 102.16 (2m) (g), 102.18 (1) (e), 102.32 (6m), 102.37, 102.38, 102.54, and 102.59, Stats.

Related statutes: NA

Explanation of agency authority. Section 102.15 (1), Stats., provides that subject to Chapter 102, Stats., the department may adopt its own rules of procedure and may change the same from time to time.

Section 102.16 (2m) (g), Stats., as amended by 2005 Wisconsin Act 172, directs the department to promulgate rules establishing standards for determining the necessity of treatment provided to injured employees and provides that the rules establishing the standards shall, to the greatest extent possible, be consistent with Minnesota worker's compensation treatment parameters.

Summary of proposed rule. The proposed rules make the following changes, as agreed to by the Worker's Compensation Advisory Council.

Supplementary reports by employers and insurance companies. Under the current rule self-insured employers and insurance companies are required to submit supplementary reports within 30 days after the final compensation payment is made in cases where there is payment for more than 3 weeks of temporary disability or any permanent disability. The proposed amendment will also require the filing of the reports in cases where the injured employee has undergone surgery to treat an injury, other than surgery to correct a hernia. Section 102.13 (2) (c ), Stats., as created by 2005 Wisconsin Act 172, provides that the department may by rule require this report.

Compromise settlements. The proposed amendment to s. DWD 80.03 (1) (d) will increase the amount of unaccrued compensation or death benefits that may be paid in a lump sum to the injured employee or his or her dependents from $5,000 to $10,000.

The proposed amendment to s. DWD 80.03 (1) (g) is a technical amendment that updates the name of the Department of Industry, Labor and Human Relations to the current Department of Workforce Development.

Payment of orders awarding compensation. The proposed rules will repeal s. DWD 80.15. This section is no longer necessary because s. 102.18 (1) (e), Stats., as created by 2001 Wisconsin Act 37, established a uniform 21 day payment standard for all orders awarding compensation, including awards resulting from hearings, defaults of parties, and compromises and stipulations confirmed by the Worker's Compensation Division.

Minimum rating for permanent partial disability. The proposed amendment to s. DWD 80.32 (11) provides a minimum permanent partial disability rating of 7.5% at each level of the spine for the implantation of an artificial spinal disc.

Advancements and lump sum payments. The amendment to s. DWD 80.39 (1) is a technical amendment to correct the statutory reference authorizing the Worker's Compensation Division to approve advancements and lump sum payments of compensation for permanent disability and death benefits. In a recent amendment, s. 102.32 (6), Stats., was renumbered s. 102.32 (6m), Stats.

Vocational rehabilitation benefits. The amendments to s. DWD 80.49 (2), (7) (b), and (8) are technical amendments that update the reference to the Department of Health and Family Service to the Division of Vocational Rehabilitation. These amendments are necessary to reflect that the Division of Vocational Rehabilitation is now a division of the Department Workforce Development.

Computation of compensation for permanent disabilities. Section 102.54, Stats., provides for an increase in compensation for injuries to the dominant hand that result in any amputation beyond two-thirds (2/3) of a distal phalanx of any finger or 100% loss of use of any joint on a hand or arm. The amendments to s. DWD 80.50 (1) (a), (2), and (3) update the rule to include reference to the increased permanent partial disability for injuries to the dominant hand. The amendments clarify that compensation based on the increase for dominant hand injuries is to be computed in the same manner as other multiple injury factors under s. 102.53, Stats.

Computation of weekly wage. The proposed amendment to s. DWD 80.51 (4) establishes a 24-hour minimum workweek for employees who are members of a regularly scheduled class of part-time employees under s. 102.11 (1) (am), Stats. The former law provided for a 30-hour workweek for part-time employees who were part of a class. The amendment is to correctly reflect the current law setting a 24-hour workweek for part-time employees working as part of a class.

Compensation from the Second Injury Fund. The proposed amendments to s. DWD 80.68 (1) and (3) are technical amendments to correct the statutory reference that authorizes the Worker's Compensation Division to approve advancements and lump sum payments of compensation for permanent disability and death benefits. In a recent amendment, s. 102.32 (6), Stats., was renumbered s. 102.32 (6m), Stats.

Reasonableness of fee disputes. In a recent amendment to s. 102.16 (2) (d), Stats., the definition of “formula amount " for establishing reasonable fees was changed from 1.5 to 1.4 standard deviations from the mean for that procedure as shown by data from a certified database. Section DWD 80.72 (2) (i) is amended to reflect this statutory change.

Section DWD 80.72 (L) is amended to include advanced practice nurse prescriber in the definition of “provider" or “health service provider." In a recent amendment to s. 102.42 (2), Stats., advanced practice nurse prescribers were added as a choice of practitioner that injured employees were permitted to select for treatment for work-related injuries.

Necessity of treatment disputes. The proposed amendment to s. DWD 80.73 (2) (d) is a technical amendment to include physician assistant and advanced practice nurse prescriber to the definition of “ provider." In a recent amendment to s. 102.42 (2), Stats., physician assistant and advanced practice nurse prescriber were added as choices of practitioner that injured employees were permitted to select for treatment for work-related injuries.

Treatment guidelines for necessity of treatment disputes. The creation of Chapter DWD 81 is the result of a Study Committee formed by the Worker's Compensation Advisory Council to study the cost of health care services provided for the treatment of injured employees. The Study Committee recommended to the Worker's Compensation Advisory Council that Wisconsin adopt worker's compensation treatment guidelines to be used by impartial health services review organizations and experts from a panel of experts selected by the department to render opinions to resolve necessity of treatment disputes arising under s. 102.16 (2m), Stats., and s. DWD 80.73. Currently there are no provisions in Ch. 102, Stats., or Chapter DWD 80 that establish guidelines for review organizations and experts to use in rendering opinions to resolve necessity of treatment disputes.

The Study Committee recommended that the Wisconsin treatment guidelines follow the model of the Minnesota Worker's Compensation Treatment Parameters to the extent the Minnesota parameters are consistent with existing Wisconsin worker's compensation law. The Worker's Compensation Advisory Council agreed. This recommendation was adopted into law in 2005 Wisconsin Act 172. Section 102.16 (2m) (g), Stats., as amended by 2005 Wisconsin Act 172, directs the department to promulgate rules establishing standards for determining the necessity of treatment provided to injured employees and provides that the rules establishing the standards shall, to the greatest extent possible, be consistent with Minnesota rules 5221.6010 to 5221.8900, as amended to January 1, 2006.

The proposed Chapter DWD 81 contains the Minnesota treatment parameters that are consistent, to the greatest extent possible, with current Wisconsin law. The Minnesota rules contain certain provisions that conflict with Wisconsin law and these provisions are not included in Chapter DWD 81. The provisions in the Minnesota rules that are not included in Chapter DWD 81 cover the following:

Requirements for prior notice by health care providers to insurers before administering treatment that is a departure from the guidelines. Under Wisconsin law there is no requirement for prior notification to an employer or insurer before providing any form of treatment to an injured employee.

Requirements for health care providers to follow in referring injured employee to another health care provider. Under Wisconsin law there is no statutory requirement for a health care provider to follow in referring an injured employee to another health care provider for treatment.

Requirements for treating health care providers to obtain second opinions before certain modalities of treatment can be provided to injured employees. There is no statutory requirement under Wisconsin law that requires a second opinion to approve any treatment.

Recognition of certified managed care plans. Under Wisconsin law injured employees cannot be required to obtain treatment from a certified managed care plan and have the right to select their own treating practitioner licensed in and practicing in Wisconsin.

Requirement for the Worker's Compensation Division to maintain outcome studies on treatment modalities provided to treat injured employees for work-related injuries. In Wisconsin, there is no statutory requirement that the Worker's Compensation Division conduct or maintain outcome studies for treatment provided to injured employees.

Disciplinary action and penalties against health care providers for providing excessive treatment to injured employees. There is no statutory authority in Wisconsin for authorizing the Worker's Compensation Division to impose disciplinary action or penalties against health care providers.

Section 102.16 (2m) (g), Stats., as amended by 2005 Wisconsin Act 172, also created a Health Care Providers Advisory Committee for the purpose of advising the Worker's Compensation Division and the Worker's Compensation Advisory Council before amending the rules establishing the treatment guidelines. The Health Care Provider Advisory Committee reviewed the proposed rules and their suggested modifications have been incorporated. The Minnesota rules were promulgated on the basis of standard current medical practice as it existed in the early 1990s. The modifications suggested by the Health Care Provider Advisory Committee replaced outdated terminology and updated certain substantive provisions to reflect current standard practice.

The proposed Chapter DWD 81 is organized in the same general format as the Minnesota rules. Sections DWD 81.01 to 81.13 cover the same subjects and topics included in the Minnesota rules that are consistent with Wisconsin law but do not include matters that are contrary or inconsistent with Wisconsin law. Section DWD 81.14 applies to the Health Care Provider Advisory Committee.

The following is a summary of the provisions in Chapter DWD 81:

DWD 81.01 states the purpose of the rules is to establish guidelines for necessary treatment of patients with compensable worker's compensation injuries to prevent unnecessary treatment under s. 102.16 (2m), Stats.

DWD 81.02 provides that the ICD-9-CM diagnostic codes referenced in the rules are contained in the fourth edition of the International Classification of Diseases, Clinical Modification, 9th Revision, 1994, and corresponding annual updates.

DWD 81.03 contains definitions of medical terms that appear throughout the rules.

DWD 81.04 covers general treatment guidelines and the responsibility of health care providers to evaluate whether treatment modalities result in progressive improvement of the employee. This section also enumerates the 5 exceptions that justify departure from the guidelines. The exceptions that justify departure from he guidelines include the following:

There is a documented medical complication.

Previous treatment did not meet the accepted standard of practice and meet the guidelines in this chapter for the health care provider who ordered the treatment.

The treatment is necessary to assist the employee in the initial return to work where the employee's work activities place stress on the body part affected by the work injury.

The treatment continues to meet two of the following three criteria documented in the medical record (1) The employee's subjective complaints of pain are progressively improving; (2) The employee's objective clinical symptoms are progressively improving; (3) The employee's functional status, especially vocational activity, is objectively improving.

There is an incapacitating exacerbation of the employee's condition.

DWD 81.05 establishes the treatment guidelines for general medical imaging procedures and specific imaging procedures for low back pain. The Health Care Provider Advisory Committee recommended modifying the Minnesota rules to reduce the time to initiate CT and MRI scanning from eight weeks to four weeks because these procedures may be more useful if done at an earlier point in time after the injury. The Health Care Provider Advisory Committee also recommended deleting the term gadolinium, as used in the Minnesota rules covering MRI enhanced scanning, because other contrast agents are being developed and coming into use.